United States District Court,
N.D. Illinois,
Eastern Division.
Kim YOUNG, Ronald Johnson, and William Jones, on behalf of themselves and a class of others similarly situated, Plaintiffs,
v.
COUNTY OF COOK, Michael F. Sheahan, Callie Baird, Scott Kurtovich, and Salvador Godinez, Defendants.

Case No. 06 C 552.
April 2, 2009.

*837 Michael I. Kanovitz, Arthur R. Loevy, Jonathan I. Loevy, Roshna Bala Keen, Samantha Liskow, Loevy & Loevy, Chicago, IL, for Plaintiffs.

Francis J. Catania, Cook County State's Attorney, Chicago, IL, for County of Cook.

Daniel Francis Gallagher, Lawrence S. Kowalczyk, Paul A. Ogrady, Terrence Franklin Guolee, Querrey & Harrow, Ltd., Chicago, IL, for Michael F. Sheahan, Callie Baird, Scott Kurtovich, Salvador Godinez.

REVISED MEMORANDUM OPINION AND ORDER FN1

FN1. This decision has been revised in certain respects in conjunction with the Court's denial of defendants' motion for reconsideration.


MATTHEW F. KENNELLY, District Judge:

Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, have sued former Cook County Sheriff Michael Sheahan and Sheriff's employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Plaintiffs allege violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants have moved separately for summary judgment, and plaintiffs have moved for partial summary judgment on the issue of liability.

Facts
On cross-motions for summary judgment, the Court construes facts and draws inferences ?in favor of the party against whom the motion under consideration is made.? In re United Air Lines, Inc., 453 F.3d 463, 469 (7th Cir.2006).

1. CCJ and the defendants
During the class period, CCJ housed, at any given time, approximately 10,000 pretrial detainees in ten residential divisions. Women are housed in two of the divisions, and men are housed in nine of them (one division houses both women and men). New detainees enter CCJ through the Receiving Classification and Diagnostic Center (RCDC). The RCDC contains separate*838 areas for men and women. Between 250 and 350 detainees are booked into and out of CCJ daily, of which approximately 300 detainees are men and thirty to forty are women.

Most of the detainees arriving at CCJ have already had a probable cause hearing before a judge. Though defendants contend they do not know the nature of charges pending against detainees when they arrive at the RCDC, the evidence they cite on this point does not support that contention. Rather, the evidence shows that the RCDC staff has information identifying the specific offense(s) with which each detainee has been charged, though a charge is not expressly classified as a felony or a misdemeanor.

The Sheriff Defendants were all high-ranking officials in the Sheriff's office during times relevant to plaintiffs' claims. Sheahan was the Cook County Sheriff from December 1990 to December 2006. As Sheriff, Sheahan was the custodian of CCJ under Illinois law. See 55 ILCS 5/3-6017. Sheahan had policymaking authority over CCJ, including with regard to strip search policies.

Baird was the director of the Cook County Department of Corrections (CCDC) from July 2003 until November 2004.FN2 She was succeeded by Kurtovich, who served as director from November 2004 until June 2006. In turn, Godinez followed Kurtovich as director of CCDC and continues to hold that position currently. Baird, Kurtovich, and Godinez all had policymaking authority over intake strip searches at CCJ during their respective tenures as directors of CCDC. This responsibility included ensuring CCJ's policies concerning intake strip searches complied with federal and state law.

FN2. Witnesses used the terms ?director? and ?executive director? of CCDC interchangeably in their depositions. Both terms refer to the same position.


2. Procedures and strip searches at CCJ
All new detainees entering CCJ are visually strip searched for the purpose of finding contraband. The search involves a visual inspection of the detainee's naked body, including his or her body cavities. Most detainees arriving at the RCDC enter CCJ's general population, regardless of the type of charge they are facing.

Defendants have submitted over 2000 pages of contraband reports, spanning several years, that they contend show a pervasive problem of detainees attempting to bring contraband into CCJ. Contraband, as defined in a jail setting, includes paper money, loose change, and cigarettes, as well as weapons and drugs. The majority of these 2000-plus pages of reports appear to deal with contraband that is not inherently dangerous, such as money.

[1] Headnote Citing References Defendants contend that weapons and drugs have been ?routinely? found in possession of detainees arriving at the RCDC. Sheriff Defendants' Local Rule 56.1 Statement ¶ 26. Defendants do not, however, cite to any evidence supporting their claim that these items are ?routinely? found. Rather, they cite general testimony about the types of contraband found over the years and refer to the 2000 pages of contraband reports as a group without providing detail regarding how many of those reports concern drugs, weapons, or other dangerous items. As plaintiffs correctly point out, however, it is not the Court's responsibility to go hunting through a record of this size unguided to try to find a factual dispute. Rather, it is the parties' obligation to draw the Court's attention to evidence they contend is relevant. See, e.g., *839 Roger Whitmore's Auto. Serv., Inc. v. Lake County, 424 F.3d 659, 664 n. 2 (7th Cir.2005); Ogdon v. Hoyt, 409 F.Supp.2d 982, 986-87 (N.D.Ill.2006). Defendants have not satisfied this obligation by their general citation to the mass of contraband reports.

Similarly, the Sheriff Defendants contend that ?[b]ased on the contraband report, misdemeanants were just as likely to carry contraband as detainees charged with more serious crimes.? Sheriff Defendants' Local Rule 56.1 Statement ¶ 28. To support this contention they cite the testimony on page 212 of the deposition of their expert witness and the contraband reports as a whole. The citation to defendants' expert does not support that statement:

Q. Now, in addition to your speaking with CCDC staff about contraband discovered in the jail, were you not also provided over also [ sic ] 2,000 pages of contraband reports detailing contraband found on intake at the strip searches?

A. Yes, I recall receiving that number.

Q. Does that also form an official basis of the history of contraband documented over the years at Cook County Jail?

A. Yes, it does.

Q. Would that, again, in your professional opinion be a reasonable basis as to why to search on intake?

A. Yes, it would.

Sheriff Defendants' Local Rule 56.1 Statement Ex. 9 at 212. Defendants' expert testified only that he considered the contraband reports as part of his opinion; he did not indicate how many, if any, of those reports involved detainees charged with misdemeanors. Contrary to defendants' contentions in their motion for reconsideration, the Court does not question the credibility of their expert witness. Rather, the Court has taken his deposition testimony at face value. As noted above, defendants' blanket citation to the 2000 pages of reports likewise does not properly support their contentions.

In their briefs, defendants cite five specific examples from the reports of detainees allegedly charged with misdemeanors having been found with contraband, including weapons or drugs. See Sheriff Defendants' Reply in Supp. of their Mot. for Summ. J. Based on Constitutionality of Search Policies at 4 (citing Sheriff Defendants' Local Rule 56.1 Statement Ex. 10 at QH 384, 421, 423, 461); Sheriff Defendants' Mem. in Supp. of their Mot. for Summ. J. Based on Qualified Immunity at 4 (citing Sheriff Defendants' Local Rule 56.1 Statement Ex. 10 at QH 470). They do not, however, provide any basis to support their contention that these events occur ?routinely.? Sheriff Defendants' Local Rule 56.1 Statement ¶ 26. Moreover, as discussed below, the evidence does not support defendants' contentions regarding the five suggested examples.

In addition, in the six briefs and four Local Rule 56.1 statements they submitted, defendants have provided no information regarding how many of the 2000-plus contraband reports involve detainees charged with non-weapon, non-drug misdemeanors, much less how many such detainees were found to possess weapons or drugs. Plaintiffs also correctly point out that the contraband reports do not always indicate whether the contraband was found in a detainee's body pursuant to a strip search or was instead found in a detainee's clothes (e.g., loose change in a pocket). The difference is significant; a strip search would not be needed to find items in pockets.

The searches conducted during the class period involved having detainees strip naked, bend over, and spread their buttocks, or by having the detainees squat and cough multiple times. Strip searches were conducted without regard to the seriousness of the charges against an individual detainee and without individualized reasonable*840 suspicion that a strip search was necessary. Defendants contend that the seriousness of the charges against any given detainee had been considered by a judge at bond court prior to the commitment of the detainee to CCJ. Though true, this does not contradict plaintiffs' contention that new detainees were strip searched at CCJ regardless of the level or the nature of the offense charged. As a result, a detainee who (for example) was unable to make bail on a misdemeanor charge was strip searched.

New female detainees arriving at CCJ ordinarily were not strip searched at the RCDC. Rather, they were searched with a body scanning machine at the RCDC and were later strip searched upon arrival at the residential division to which they were assigned. The women were strip searched in open-faced cubicles, a space similar to that provided by a privacy screen in a doctors' office, with dimensions of approximately five feet by five feet. Each cubicle contained a chair for the women's clothes, and the detainees could not see individuals in other cubicles. Throughout the class period, the squat-and-cough method was used for female detainees, not the bend-and-spread method.

The search procedures differed for male detainees. They were strip searched both at the RCDC and a second time upon arrival at a housing division. The strip searches at the RCDC were conducted using the bend-and-spread method until approximately February 2006. Since then, male detainees at the RCDC have been searched using the squat-and-cough method. Despite defendants' contentions to the contrary, the Rule 30(b)(6) witness for CCDC indisputably testified that he was not aware of any justification for using the bend-and-spread method for the men as opposed to the squat-and-cough method prior to February 2006. He also acknowledged that the squat-and-cough method is a more dignified way to conduct a search. The squat-and-cough method is as effective in conducting searches as the bend-and-spread method, and CCJ has not experienced any problems due to the change in methodology.

At the RCDC, male detainees were lined up in a hallway for their strip search. At times, detainees would cover the entire length of the hallway wall. Plaintiffs allege that the RCDC staff did not conduct searches until the holding bullpen was full, but defendants have presented evidence that searches sometimes take place before the bullpen was full. Defendants admit that guards took groups of seventy-five men for strip searches in the hallway, but they note that the last group searched at night was typically smaller. Plaintiffs present evidence that strip searches were occasionally conducted in a group of over 100 detainees at the same time, though defendants dispute that more than seventy-five detainees were ever searched at a time. CCDC's Rule 30(b)(6) witness could not rule out the possibility, however, that more than eighty detainees were sometimes searched in a single group at the RCDC. Thus even though defendants contend (in their motion for reconsideration) that the number of male detainees searched at a time is disputed, there is no factual dispute that, at times, they were searched in groups of seventy-five.

The RCDC hallway where male detainees were strip searched in groups did not contain any privacy screens before January 31, 2007. Defendants' expert, Norman Carlson, is unaware of any other jails that have conducted group strip searches without privacy dividers in the last twenty years. When his deposition was taken in November 2006, CCDC's Rule 30(b)(6) witness stated that he was unaware whether CCDC had ever investigated the possibility or cost of installing privacy dividers in *841 the hallway where men were strip searched at the RCDC. In or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC. FN3 The screens were spaced approximately four feet apart, and the hallway was large enough to accommodate thirty-seven stalls. Since the stalls were installed, the number of men searched at one time has been limited to the number of available stalls. Defendants dispute this is the case, but the evidence they cite does not support their contention. Sometime after January 2007, a body scanning machine was also installed in the male section at the RCDC. The parties dispute how long it takes the machine used on the male side of the RCDC to complete a scan.

FN3. Defendants argue that evidence regarding the privacy screens is inadmissible as a subsequent remedial measure. Federal Rule of Evidence 407 ?does not require the exclusion of evidence of subsequent measures when offered [to demonstrate] feasibility of precautionary measures, if controverted ....? Fed.R.Evid. 407. Defendants argue that use of privacy dividers and body scanning machines were and are not always feasible for a number of reasons. The Court has considered evidence of subsequent measures taken by defendants only to the extent it bears on these feasibility issues, which the Court addresses further in the discussion below.


Plaintiffs and defendants both compare defendants' policies to those used by the federal Bureau of Prisons (BOP). Defendants concede that BOP's procedures for strip searches of incoming detainees are reasonable under the circumstances facing BOP. By 1987, all BOP facilities had privacy screens for all detainees undergoing strip searches. Defendants' expert witness is unaware of any jurisdictions other than Cook County that conduct strip searches of all detainees charged with misdemeanors without giving them the option to avoid a strip search by remaining outside of the jail's general population.

3. Plaintiffs' claims
Plaintiff Jones is a fifty-two year-old man. He was taken to CCJ after failing to comply with a condition of his bond for a misdemeanor traffic violation. During his intake at CCJ, Jones was strip searched with a group of fifty other men. Jones claims that during the search, he and the other men were lined up shoulder-to-shoulder and were required to bend over with their buttocks spread apart while a guard walked up and down the line. Defendants deny that the men in the group strip search would have touched each other and claim they would have been at least six inches apart based on the practice at CCJ. After posting bond later that same night, Jones was released from custody.

Plaintiff Johnson is a forty-four year-old man. He was arrested for felony possession of a controlled substance. Johnson alleges he was falsely arrested. He was taken to CCJ and strip searched in a hallway, allegedly with 100 other men. Johnson claims the search was so crowded that the naked men were touching each other. Defendants cite Johnson's deposition testimony to contend that the prisoners during the search were not touching each other. This takes Johnson's testimony out of context. When read in its entirety, it is clear that Johnson only denied that someone reached out and affirmatively tried to touch him. See Sheriff Defendants' Resp. to Pls.' 56.1 Statement Ex. 4 at 59-64. He unequivocally stated the crowding of the search resulted in poisoners touching each other: ?Q. Nobody touched you or nobody touched you in the way that you were offended by? A. Offended by. I mean it was so crowded, I was touched but it wasn't done offensively.? Id. at 59:23-60:2.

Plaintiff Young is a forty-seven year-old woman. She was arrested for failure to *842 appear in court on a misdemeanor traffic violation and was taken to CCJ. While waiting for delivery of $200 for her bond, Young was subjected to an intake strip search.

On April 25, 2007, the Court, pursuant to Federal Rule of Civil Procedure 23, certified two classes of plaintiffs. Class I consists of ?all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.? Dkt. No. 92 at 16. Jones and Johnson are the class representatives for Class I. Class II consists of ?all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.? Id. Jones and Young are the class representatives for Class II.FN4

FN4. Cook County contends that Jones and Young were not arrested on misdemeanors and cannot represent Class II. The Court rejected that argument in granting the motion for class certification. Young v. County of Cook, No. 06 C 552, 2007 WL 1238920, at *6 (N.D.Ill. Apr. 25, 2007). Cook County has presented no new evidence that would call for reconsideration of the previous ruling.


In addition to information about the class representatives, plaintiffs have submitted sworn declarations from over 500 men, selected randomly, who were strip searched at the RCDC during the class period. Defendants dispute the factual content of these declarations based on testimony regarding the general experiences of CCJ officials and employees, but not based on first-hand knowledge concerning the specific allegations contained in the declarations. Cook County also repeatedly contends that none of the affidavits are trustworthy, but it has submitted no evidence in support of that contention.

One RCDC employee testified that detainees have about six inches of space between each other during the strip searches. In nearly ninety percent of the declarations submitted by plaintiffs, the declarants claimed that the strip searches at the RCDC were so crowded that detainees made physical contact with one or more other detainees. Most declarants also reported being able to see other detainees' naked bodies. Cook County contends that the detainees do not see each other because they are ordered to face the wall or look at the floor.

Though not necessarily experienced by the class representatives, many of the declarations submitted by plaintiffs detail additional problems during the group strip searches at the RCDC.FN5 Many of the declarants complained of strong, foul odors during the strip searches. The declarants also claim that bodily fluids were often present during the male group strip searches. Defendants dispute how often such fluids-including vomit, diarrhea, and blood-were actually present during searches. Over 400 of plaintiffs' declarants also claim that the guards used insults or abusive language during strip searches. These included insults about body odor, anatomy, sexual orientation, and race. On occasion, entire groups *843 would be required to repeat the strip search, or portions of it, after one detainee made a mistake during the process. Plaintiffs contend that dogs were used to threaten, frighten, and intimidate detainees during strip searches and that at times the dogs were not muzzled or leashed. Defendants deny these contentions and claim that dogs were only used occasionally in the search area.

FN5. To dispute most of the allegations made by the declarants, defendants rely only on the deposition testimony of the class representatives-specifically, the absence of testimony by the class representatives regarding similar allegations. Unless they denied observing those conditions, the fact that the class representatives did not testify about them does not mean they did not experience or observe them; rather, it reflects only that defendants' counsel did not ask questions about them during the depositions. Moreover, the fact that a class representative did not experience a particular adverse condition at the RCDC is not evidence that the same was true of the declarants. Defendants' contention in their motion for reconsideration that this creates a disputed issue of fact is unfounded.


Plaintiffs also claim that the Sheriff Defendants never looked into how often individuals accused of misdemeanors brought contraband items to CCJ. Defendants dispute this, citing generally to exhibit 10 to the Sheriff Defendants' Local Rule 56.1 statement. As noted above, defendants' submissions provide minimal detail about these 2000-plus pages of reports. The reports do not indicate whether the detainees identified in them were charged with misdemeanors or felonies. Moreover, defendants cite no evidence indicating that CCJ officials considered these reports or other similar information before adopting the blanket strip search policy for all detainees, including those charged with misdemeanors. Indeed, many of the contraband reports are from a period long after the strip search policy had been implemented. CCDC's Rule 30(b)(6) witness testified that he could not recall a specific instance of a strip search of a detainee charged with a non-drug, non-weapons misdemeanor that resulted in the discovery of drugs or weapons.

Discussion
Summary judgment is appropriate if ?the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.? Fed.R.Civ.P. 56(c). To determine whether a genuine issue of material fact exists, the Court must view the record in the light most favorable to the nonmoving party and draw reasonable inferences in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.2002). A genuine issue of triable fact exists only if ?the evidence is such that a reasonable jury could return a verdict for the nonmoving party.? Anderson, 477 U.S. at 248, 106 S.Ct. 2505. ?The fact that plaintiff and defendants have filed cross-motions for summary judgment does not change the applicable standard. The Court must consider each motion independently and must deny both motions if there is a genuine issue of material fact.? Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 531 F.Supp.2d 949, 953 (N.D.Ill.2007) (citations omitted).

1. Motion to strike plaintiffs' Local Rule 56.1 statement
The Sheriff Defendants have moved to strike plaintiffs' Local Rule 56.1 statement and ask the Court to deny plaintiffs' motion for summary judgment due to their alleged failure to comply with the local rule. They first take issue with paragraphs 1-8, 16-28, and 126-29 of plaintiffs' statement on the ground that the facts contained in those paragraphs are immaterial. The Sheriff Defendants' only explanation regarding immateriality is that plaintiffs do not cite these paragraphs in their summary judgment brief. Nothing in the local rule, however, requires a summary judgment movant to cite to each paragraph of its statement of facts in its motion or brief. Moreover, the paragraphs the Sheriff Defendants seek to strike clearly contain material facts concerning the plaintiffs, their claims, and the defendants' procedures and policies-facts that are so fundamental that they form the basis of the parties' dispute.

*844 The Court denies the motion to strike with respect to paragraphs 1-8, 16-28, and 126-29. The Court grants the motion with respect to paragraph 77 because it is immaterial for present purposes. In that paragraph, plaintiffs note that defendants' expert witness was the main defendant in the seminal Supreme Court case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

Next, the Sheriff Defendants contend that a number of paragraphs in plaintiffs' statement do not comply with Local Rule 56.1 because they contain multiple factual assertions or multiple sentences and are overly descriptive of the evidence cited for support. To the extent these are technical violations of Local Rule 56.1-it is not clear that they are-the Court, in its discretion, chooses to excuse them. See Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995) (noting that district courts have discretion to overlook failure to comply strictly with local rules regarding summary judgment). The Court also notes that defendants have not complied with Local Rule 56.1 in every paragraph of their factual statements. The Court has chosen to consider all proper evidence submitted by each of the parties, regardless of whether it was presented in strict compliance with Local Rule 56.1.

[2] Headnote Citing References The Sheriff Defendants also contend that paragraphs 43-54 of plaintiffs' factual statement are inadmissible hearsay. Those paragraphs report statements made in articles that appeared in the Chicago Tribune. Plaintiffs counter that the articles are not hearsay because they are only submitted for purposes of demonstrating that defendants were on notice regarding claims about the conditions at CCJ-an issue that does not appear to be seriously disputed. The Court declines to strike paragraphs 43-54 but has not considered those paragraphs for purposes of this motion.

Last, the Sheriff Defendants challenge plaintiffs' submission of affidavits by class members regarding conditions at CCJ and, specifically, their experiences during strip searches. The Sheriff Defendants claim it is inappropriate for the Court to consider these affidavits because none of them were submitted by detainees who were processed and searched at the exact same time as the class representatives. Defendants have not, however, cited any authority to support their contention, and their argument makes no sense: the claims of the class concern defendants' practices over an extended period. In any event, the Seventh Circuit and other judges in this district have considered similar affidavits, without commenting on the propriety of doing so. See, e.g., Little v. Walker, 552 F.2d 193, 194 (7th Cir.1977) (considering affidavits of putative class members regarding attacks in Illinois prisons on review of order dismissing complaint); Doe v. Calumet City, 754 F.Supp. 1211, 1213-15 (N.D.Ill.1990) (considering affidavits submitted by class members regarding manner and conditions of strip searches in support of summary judgment motion). It is appropriate to consider the affidavits of class members submitted in support of plaintiffs' motion for summary judgment to the extent those affidavits contain admissible evidence. The Court denies the Sheriff Defendants' motion to strike these affidavits.

2. Class II plaintiffs
Plaintiffs and defendants both contend they are entitled to summary judgment with respect to the claims of the Class II plaintiffs-detainees charged with misdemeanor offenses not involving drugs or weapons who were strip searched, including a visual body cavity search, upon intake into CCJ. Defendants admit that all detainees entering CCJ, including those in Class II, are strip searched. It is also *845 undisputed that these searches were conducted without making individualized reasonable suspicion determinations.

[3] Headnote Citing References Pretrial detainees retain their constitutional rights, including the protections of the Fourth Amendment against unreasonable searches and seizures. Bell, 441 U.S. at 545, 99 S.Ct. 1861; Thompson v. County of Cook, 412 F.Supp.2d 881, 888-89 (N.D.Ill.2005). Those rights, however, are limited due to the realities of confinement, most importantly the need to maintain security and order in jails and prisons. Bell, 441 U.S. at 545-46, 99 S.Ct. 1861 (?There must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.?) (internal quotation omitted). Plaintiffs' claims must be evaluated in this light, giving deference to the expertise of jail and prison officials. Id. at 546-48, 99 S.Ct. 1861. In this regard, the Supreme Court prescribed a balancing test:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. 1861. In Bell, the Supreme Court determined that strip and body cavity searches of pretrial detainees that had engaged in contact visits with visitors from outside the jail complied with constitutional standards. Id. at 558, 99 S.Ct. 1861. The question presented to the Supreme Court was ?whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause.? Id. at 560, 99 S.Ct. 1861 (emphasis in original). The Supreme Court did not consider whether such searches could be made in the total absence of reasonable suspicion.

The Seventh Circuit has stated that ?the balancing test prescribed in [ Bell ] does not validate strip searches in detention settings per se.? Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983). There are ?few exercises of authority by the state that intrude on the citizen's privacy and dignity as severely as? visual body cavity and strip searches. Id. (citing authority describing strip searches as ?demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission?). ?The more intrusive the search, the closer governmental authorities must come to demonstrating probable cause for believing that the search will uncover the object for which the search is being conducted.? Id. at 1273 (citing Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In Mary Beth G., the plaintiffs claimed that their Fourth Amendment rights were violated by a City of Chicago policy to strip search all female detainees placed in Chicago Police Department detention facilities, without individualized suspicion for conducting the searches. Id. at 1267-68, 1273. The plaintiffs had been charged with misdemeanors and were being detained until they could make bond. Id. at 1272. The city attempted to justify the strip search policy based on security concerns. Id. at 1272-73. There was not, however, evidence that the women being strip searched posed serious security risks. Accordingly, the Seventh Circuit held the searches ?bore an insubstantial relationship to security needs so that, when balanced against ... privacy interests, the searches cannot be considered ?reasonable.? ? Id. at 1273.

*846 Following Bell, courts of appeal have generally ruled that a detainee held on a misdemeanor charge not related to weapons or drugs may not be strip searched absent individualized reasonable suspicion that he or she is carrying such contraband. See, e.g., Mary Beth G., 723 F.2d at 1273; Roberts v. State, 239 F.3d 107, 112 (1st Cir.2001); Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir.2001); Amaechi v. West, 237 F.3d 356, 364-65 (4th Cir.2001); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir.1993); Masters v. Crouch, 872 F.2d 1248, 1253-54, 1257 (6th Cir.1989); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985).FN6 The crux of these cases is that given the extreme intrusion into personal privacy that a strip search or body cavity search entails, people charged with minor offenses that do not involve drugs or weapons are not subject to such searches absent individualized reasonable suspicion. Of all the circuits to consider this issue, only the Eleventh Circuit has reached a contrary result.

FN6. The Ninth Circuit has gone even further, finding unconstitutional a police department policy of strip searching all detainees charged with a felony without any analysis of individualized suspicion. See Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 716 (9th Cir.1990), overruled in part on other grounds, Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Plaintiffs do not argue for such a broad rule in this case.


Defendants challenge the continuing validity of Mary Beth G. and similar cases, relying on the Eleventh Circuit's decision in Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc). In Powell, the Eleventh Circuit, acknowledging Mary Beth G. and other cases, held that there is no need, when evaluating a Fourth Amendment challenge to strip searches of detainees, to consider whether the detainees have been arrested for misdemeanors or for more serious crimes. Id. at 1309-10. This Court, even if it were so inclined, has no authority to disregard Mary Beth G.-even though the Eleventh Circuit believes that case was decided incorrectly.

A number of courts in this district, including this one, have come to the same conclusion. See Thompson v. County of Cook, 428 F.Supp.2d 807, 812-15 (N.D.Ill.2006); Calvin v. Sheriff of Will County, 405 F.Supp.2d 933, 938-45 (N.D.Ill.2005) (blanket policy of strip searching detainees arrested for failure to appear in court for misdemeanor and traffic violation cases violated Fourth Amendment); Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116, at *10-13 (N.D.Ill. Aug. 20, 1998) (policy of strip searching female inmates following judicial determination that they must be released from custody violated Fourth Amendment); Doe v. Calumet City, 754 F.Supp. at 1220-21 (same).

[4] Headnote Citing References Defendants focus on the need to maintain security at CCJ, especially with respect to the prevention of violence, as a justification for strip searching the Class II plaintiffs. As noted above, this is an important concern at a facility like CCJ, one that can justify strip searches of detainees. To determine the validity of the searches of the Class II members, this Court must consider ?the justification for initiating? them. Bell, 441 U.S. at 559, 99 S.Ct. 1861. The Seventh Circuit found the City of Chicago's security justification lacking in Mary Beth G. where the evidence did not support it:

The affidavits of the lockup personnel, which lack specificity, suggests that only a few items have been recovered from the body cavities of women arrested on minor charges over the years .... Although a detention center may be a place fraught with serious security dangers ... the evidence does not support the view that those dangers are created *847 by women minor offenders entering the lockups for short periods while awaiting bail.

Mary Beth G., 723 F.2d at 1272-73 (internal quotation marks and citations omitted). Thus, even though this Court must defer to CCJ's expertise as required by Bell, defendants are still obliged to present evidence in support of their blanket strip search policy.

The problem with defendants' justification for searching misdemeanor detainees is that they have not provided an evidentiary basis from which any reasonable jury could find the searches of Class II plaintiffs were reasonable, either with respect to misdemeanor detainees in general or each individual detainee, under the balancing test established in Bell and Mary Beth G.

Courts have generally required jail officials to have either individualized suspicion or suspicion arising from the nature of the charged offense before conducting a strip search of a detainee charged with a misdemeanor that does not involve drugs or weapons. See, e.g., Shain, 273 F.3d at 63; Roberts, 239 F.3d at 112 (requiring ?a reasonable suspicion that the individual inmate is concealing contraband?); Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir.1989) (analysis of validity of strip search justification requires ?consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband?); Stewart, 767 F.2d at 156-57 (strip searches of ?minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband? violated Fourth Amendment); Thompson, 412 F.Supp.2d at 890. Defendants have not presented any evidence that reasonable suspicion existed to strip search either members of Class II in general or class representatives Young and Jones specifically. Nor have defendants attempted to present evidence that individualized suspicion existed to conduct a strip search of any particular member of Class II.

Lacking any evidence of individualized suspicion of the Class II representatives or the members of Class II, defendants raise several additional arguments as to why security concerns at CCJ necessitate the blank strip search policy. In particular, defendants cite to the 2000-plus pages of contraband reports to support their argument that security at CCJ requires strip searching all detainees charged with misdemeanors that do not involve weapons or drugs. Those reports, however, would not enable a reasonable jury to reach that conclusion. First, many, if not most, of the reports indicate that the contraband found was money. Though CCJ has an interest in preventing detainees from bringing money into the jail, the reports do not indicate whether money was found through a strip search or was simply in a detainee's pockets. Defendants have presented no evidence indicating that body cavity searches are needed to detect contraband money.

Second, the reports do not indicate the nature of the charges against the detainees who possessed contraband. Thus there is no evidence that members of Class II or misdemeanor detainees-a subset of all CCJ detainees-routinely possessed contraband. The Sheriff Defendants cite specifically to only five of the contraband reports in their briefs as specific evidence that misdemeanor detainees possessed drugs or weapons. The reports they cite, however, do not indicate the nature of the charges against the detainees in question. Without evidence of the nature of those charges, there is no basis upon which a jury reasonably could find that security *848 concerns justify conducting extremely invasive searches of all Class II members. Though a history of security and violence issues might, along with other considerations, justify a blanket strip search policy, defendants have not presented any evidence that would justify such a policy with respect to misdemeanor detainees.

Finally, the reports do not always indicate whether the contraband was discovered as result of a strip search or instead was found in a detainee's clothing or willingly surrendered. In the five reports cited in the Sheriff Defendants' briefs, two of them involved finding contraband in pockets or shoes, and in one instance, the detainee voluntarily handed the contraband to officers. One report does not state whether the contraband was found in the detainee's body cavities or clothes. Only one of those five reports involved contraband discovered during a squat-and-cough visual body cavity search. This is insufficient, as a matter of law, to justify highly intrusive strip searches of detainees charged with minor offenses without individualized reasonable suspicion that they possess contraband or pose a security risk. Roberts, 239 F.3d at 112 (?The lack of specific instances where a body cavity search was necessary to discover contraband supports a finding that the policy of searching all inmates is an unreasonable one.?); Calvin, 405 F.Supp.2d at 944.

Defendants also argue that strip searches of the persons in Class II are justified because members of that class were admitted to the general population at CCJ, where they would come into contact with detainees facing more serious charges and might be attempting to smuggle contraband to them. Though the Supreme Court in Bell recognized the security risk posed by detainees that could attempt to smuggle dangerous contraband into jail following a contact visit, Bell, 441 U.S. at 558-60, 99 S.Ct. 1861, the Class II plaintiffs present a different situation. Unlike detainees returning from contact visits who may have planned to use such a visit in an effort to obtain contraband and hide it in a body cavity, there is no basis to think the Class II plaintiffs knew they were about to be arrested, depriving them of the opportunity to hide something in their bodies. See Shain, 273 F.3d at 63; Thompson, 412 F.Supp.2d at 890. The unexpected nature of the detainees' arrest also undermines any deterrence argument, contrary to the situation with the plaintiffs in Bell, who could have used scheduled contact visits as an opportunity to attempt to smuggle contraband. Shain, 273 F.3d at 63.

[5] Headnote Citing References Second, though intermingling with general prisoners may be one factor in evaluating the reasonableness of a strip search policy, that fact standing alone is not enough to justify strip searches in the absence of individualized reasonable suspicion. See Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir.1993); Masters, 872 F.2d at 1254; Calvin, 405 F.Supp.2d at 943. FN7 It is telling that defendants' own expert testified that he is not aware of any jail that conducts strip searches of all detainees charged only with misdemeanors without giving those detainees the option to remain outside of the jail's general population.

FN7. One ruling in this district implies that strip searches may be reasonable where the detainee will intermingle with the general jail population. See Roscom v. City of Chicago, 570 F.Supp. 1259, 1262 (N.D.Ill.1983). That case did not address the issue at great length or consider whether prisoner mingling renders strip searches reasonable per se. Moreover, Roscom was decided before the Seventh Circuit's ruling in Mary Beth G., which does not prescribe such a rule.


Moreover, courts have noted that a general policy to place detainees charged with *849 minor offenses in the general jail population along with persons charged with more serious crimes does not justify a blanket strip search policy. See Roberts, 239 F.3d at 112-13; Chapman, 989 F.2d at 396; Masters, 872 F.2d at 1255; Calvin, 405 F.Supp.2d at 944-45 (holding that ?administrative concerns such as ?space constraints' are not sufficient to justify blanket strip search policies?). The Court finds the reasoning of those cases persuasive in light of past rulings by the Supreme Court and the Seventh Circuit. As discussed above, Bell and Mary Beth G. require this Court to balance CCJ's interests against the severity of the searches that were conduced on members of Class II. Defendants have not offered an explanation or any evidence as to why all misdemeanor detainees must be held in CCJ's general population. Instead, they rely on their general contentions about jail security, exactly the kind of reasoning the courts cited above found insufficient to justify blanket strip search policies for misdemeanor detainees.

After balancing the interests in this case, the Court is persuaded that the CCJ's choice of a policy that permits misdemeanor detainees to have contact with detainees charged with more serious offenses does not come close to outweighing the serious infringement on a misdemeanor detainee's Fourth Amendment rights that occurs when a strip search is conducted.FN8 No reasonable jury could reach the opposite conclusion. To hold otherwise would permit defendants to dictate the necessity of strip searches for detainees charged with misdemeanors simply by deciding to place them together with people facing more serious charges.

FN8. The Court also notes that Illinois law (though it does not affect plaintiffs' constitutional claims) requires, whenever possible, that detainees charged with minor offenses be housed separately from those charged with felonies. See 20 Ill. Admin. Code § 701.70(b)(4).


If CCDC officials suspect a particular detainee may be attempting to smuggle contraband into the jail's general population (e.g., based on criminal history), they may have reasonable suspicion to conduct a strip and body cavity search of that detainee. See Calvin, 405 F.Supp.2d at 944. But the possibility that this could occur in a given case does not justify conducting such searches against all detainees charged with misdemeanors that do not involve weapons or drugs.

[6] Headnote Citing References Finally, defendants argue that the strip search procedure at CCJ is justified because a judge has already found probable cause that an offense has been committed by a detainee. Defendants contend that fact distinguishes this case from Mary Beth G., where detainees were held without such a hearing. The First Circuit found this was not a compelling reason that would justify a strip search of a detainee being held on a minor traffic violation. Roberts, 239 F.3d at 111. The Court agrees with the First Circuit. The existence of probable cause that a detainee committed a misdemeanor, by itself, has nothing to do with whether that detainee might have contraband on him or might attempt to smuggle contraband into CCJ. Defendants offer no explanation why a finding of probable cause that an individual has committed a misdemeanor unrelated to drugs or weapons provides any basis for conducting a highly intrusive strip or body cavity search of that detainee.

In light of Mary Beth G. and numerous similar rulings in other cases, the strip searches of all detainees held on misdemeanor or lesser charges not involving drugs or weapons, without individualized reasonable suspicion, violated their Fourth *850 Amendment rights as a matter of law. No reasonable jury could find otherwise. As one judge in this district summarized:

The facts in cases where searches have been upheld suggest some reasonable cause on the part of the authorities to suspect that the detainees might be trying to smuggle weapons or contraband into the jail. Such cause may be furnished by the nature of the offense or the nature of the offender.

Simenc v. Sheriff of DuPage County, No. 82 C 4778, 1985 WL 4896, at *3 (N.D.Ill. Dec. 9, 1985). Defendants have not presented any evidence that blanket strip searches are necessary with respect to the members of Class II generally. Nor have they presented evidence of individualized suspicion of the class representatives or other members of Class II to justify the strip searches. Weighing the nature of the searches at issue against the justifications and evidence provided by defendants, no reasonable jury could find defendants' policies with respect to the Class II plaintiffs complied with the requirements of the Fourth Amendment. Accordingly, the Class II plaintiffs are entitled to summary judgment on their Fourth Amendment claims.

3. Class I plaintiffs
Class I includes ?all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.? Dkt. No. 92 at 16. Plaintiffs challenge the searches of the Class I members under the Fourth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Both sides contend they are entitled to summary judgment with respect to the Class I plaintiffs.

a. Fourth Amendment
For purposes of the summary judgment motions, plaintiffs concede that it is proper for CCJ to conduct strip searches of the Class I members in groups. They challenge the manner in which those group searches were conducted. Defendants argue that the manner in which the searches were conducted did not violate the Fourth Amendment as a matter of law.

Bell v. Wolfish is again the starting point for the Court's analysis. The Supreme Court made clear, otherwise permissible strip ?searches must be conducted in a reasonable manner.? Bell, 441 U.S. at 560, 99 S.Ct. 1861; see also Campbell v. Miller, 499 F.3d 711, 718 (7th Cir.2007) (finding unreasonable a strip search conducted in the backyard of a house in full view of the public).

[7] Headnote Citing References The full extent of the circumstances of the group searches of the Class I members is factually disputed. The following facts concerning those searches, however, are undisputed: (1) men at CCJ have been routinely strip searched in groups of up to at least seventy-five individuals; (2) until approximately February 2007, there were no privacy screens in the hallway where the members of Class I were searched at the RCDC-meaning they were searched in full view of the other detainees in the group being searched FN9; (3) on occasion, bodily fluids *851 have been present in the hallway where the searches of the Class I members occurred (though the frequency and prevalence of those fluids is disputed); (4) the members of Class I had, at times, no more than six inches of space between each other during the strip searches before the privacy screens were installed; (5) individuals in the group searches, prior to the installation of the privacy screens, would accidentally bump into and touch each other; and (6) prior to some time in 2006, men were searched using the less dignified bend-and-spread method, whereas women were searched using the squat-and-cough method.

FN9. Defendants attempt to dispute whether Class I members could see each others' naked bodies by stating that the detainees are ordered to look forward or down at the floor. Though defendants are entitled to reasonable inferences in response to plaintiffs' motion, no reasonable fact finder could infer that seventy-five naked men standing in close quarters for purposes of a strip search will not, incidental to those circumstances, observe other men's naked bodies. Such an inference would defy common sense. Regardless, it is undermined by the unrebutted class member declarations submitted by plaintiffs. In their motion for reconsideration, defendants contend these facts are disputed, but do not cite to any evidence in support of that contention.


In light of these undisputed facts, the Court finds that the strip searches of the members of Class I before the privacy screens were installed at the RCDC were unreasonable and violated the Fourth Amendment as a matter of law. During that period, the class members, who were undergoing one of the most intrusive types of searches the government may permissibly conduct, were subjected to conditions that greatly enhanced their discomfort and humiliation. They were herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.

Though the officials at CCJ were entitled to conduct these strip searches (except as to Class II members) so long as they did so in a safe and efficient manner, the extreme conditions of the searches violated the Fourth Amendment. The search in Campbell was not conducted at a jail, but that case is still instructive for the Seventh Circuit's clear denunciation of the search of a naked detainee in public view. Campbell, 499 F.3d at 718-19 (collecting cases); see also Amaechi, 237 F.3d at 361-62 (noting that reasonableness of strip search depends in large part on whether it was conducted in private). Defendants' attempt to distinguish Campbell on the basis that the search in that case occurred at a private residence is unpersuasive. Finding that strip searches in ?public? violate constitutional principles, the Seventh Circuit cited cases where the ?public? search was conducted at a detention facility. See Campbell, 499 F.3d at 719 (citing Hill v. Bogans, 735 F.2d 391, 392, 395-95 (10th Cir.1984); Logan v. Shealy, 660 F.2d 1007, 1010 (4th Cir.1981)).

Elliott v. Lynn, 38 F.3d 188 (5th Cir.1994), cited by defendants, provides an instructive contrast to the pre-privacy screen searches conducted at the RCDC. In Elliott, the warden ordered an institution-wide ?shakedown? at a Louisiana penitentiary that included strip searching every prisoner incarcerated there. Id. at 189-90.FN10 This was done in response to a rash of murders, stabbings, and other attacks among the general population at the prison. Id. The plaintiffs in Elliott did not challenge the propriety of conducting strip searches, just the manner in which they were conducted. Id. at 190. Due to the need to search all 3,164 prisoners as quickly as possible, the prisoners were searched in groups of five or six in one area of the prison while fifty-five other inmates were present awaiting inspection. Id. There is no indication that the prisoners were piled together without personal space while being searched; rather, the searches took place in small groups while other prisoners stood apart from those being searched. The Fifth Circuit found the searches were *852 reasonable under the circumstances, especially considering the need to conduct them quickly. Id. at 191-92.

FN10. As convicted prisoners, those searched in Elliott enjoyed even more limited constitutional protections against unreasonable searches than the pretrial detainees in the current case. See Thompson, 412 F.Supp.2d at 888-89 (collecting cases).


The current case involves far less pressing needs, as there is no contention that violence would erupt if the searches of the Class I plaintiffs were conducted with fewer detainees at a time. Though other prisoners were present and possibly watching the searches in Elliott, that was due only to the emergency situation. Even facing such circumstances, the prison officials in Elliott searched only five to six men at a time, thereby calculating their efforts to preserve some dignity. Defendants submit no evidence that they made any such efforts during the period before they installed the privacy screens.

Defendants contend that privacy screens or partitions are not constitutionally required, and state, in this regard, that ?[i]institutional security trumps detainees' desires.? Sheriff Defendants' Resp. to Pls.' Mot. for Summ. J. at 12. This contention implicates the feasibility of using screens in the RCDC hallway because defendants are arguing that the desire for privacy screens must give to way to security concerns. Such a contention, however, is undermined by the fact that in 2007, privacy screens were installed in the hallway at the RCDC and have been used without problems since that time. Moreover, defendants' expert witness testified that he was unaware of any facility (other than CCJ) that has conducted group strip searches without providing some sort of privacy partitions for the last two decades.

Based on the undisputed facts, no reasonable jury could find that the group strip searches of the Class I members prior to the installation of the privacy screens complied with the requirements of the Fourth Amendment. Accordingly, the Court enters summary judgment as to liability in favor the Class I plaintiffs for searches occurring before the installation of the privacy screens in the hallway at the RCDC in or around February 2007.

[8] Headnote Citing References The Court will not grant either side's motion for summary judgment with respect to Class I's alleged Fourth Amendment violations for the period after the privacy screens were installed at the RCDC. Disputed questions of material facts exist with respect to those searches. Those disputed facts include, at a minimum, (1) whether the privacy screens were always used; (2) the frequency and prevalence of bodily fluids present in the strip search area (though it is undisputed that bodily fluids were present in the search area some of the time); (3) the alleged use of dogs for intimidation and humiliation purposes; (4) whether it was necessary to strip search male detainees a second time due to the fact that they might have contact with unsearched detainees following their own search but before arriving at a housing division; and (5) other allegedly abusive conduct by CCJ officials. Though any one of these allegations, if proven by plaintiffs, arguably might not cause the searches to violate the Fourth Amendment, proof of some or all of them might be sufficient to do so. Accordingly, due to the existence of disputed factual issues, the Court denies plaintiffs' and defendants' motions for summary judgment on this part of Class I's claims.

b. Equal protection
[9] Headnote Citing References The Class I plaintiffs also claim that the manner of the group strip searches conducted at the RCDC violates the Equal Protection Clause of the Fourteenth Amendment because male detainees were searched in a significantly different manner than female detainees, without justification for doing so. One difference between the male and female searches is that the female searches were conducted with privacy screens long before the men. Another*853 difference has to do with the use of body scanning machines. As with the Class I plaintiffs' Fourth Amendment claims, the facts are undisputed with respect to certain aspects of the strip searches prior to the time when the privacy screens were installed at RCDC. Accordingly, the Court will analyze the propriety of summary judgment based on those limited, undisputed facts.

[10] Headnote Citing References[11] Headnote Citing References[12] Headnote Citing References It is undisputed that the strip searches policies upon entry to CCJ expressly treated men and women differently. When a ?challenged policy expressly discriminates ... on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.? Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). A proponent of a policy that treats men and women in a significantly different way, as in this case, ?must carry the burden of showing an exceedingly persuasive justification for the differing treatment. The burden is met only by showing at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.? Id. at 724, 102 S.Ct. 3331 (internal quotations omitted); see also Mary Beth G., 723 F.2d at 1273-74 (applying the same rule in context of strip search policies). This comports with the general rule that gender-based classifications are subject to heightened scrutiny. Varner v. Ill. State Univ., 226 F.3d 927, 934 (7th Cir.2000) (citing J.E.B. v. Alabama, 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994)).

Defendants cite institutional security as a justification for the difference in the strip search policies between male and female detainees. Specifically, defendants focus on the greater number of men held at CCJ and processed through the RCDC. Defendants certainly had a legitimate interest in processing detainees entering CCJ in a safe and efficient manner. They have not, however, presented any evidence that the difference in search policies between men and women ?substantially furthers? that interest. See J.E.B., 511 U.S. at 136-37, 114 S.Ct. 1419; Mary Beth G., 723 F.2d at 1273-74. Though it is undisputed that CCJ houses more men than women, that fact alone does not explain why, prior to the installation of the privacy screens, men were strip searched in such large groups, without any privacy, and packed together so tightly that they could not help seeing and touching each other. Nor does it explain why the squat-and-cough was not utilized for male detainees until long after it was used for female detainees. No reasonable juror could find that such a search furthers a substantial governmental interest.

Defendants also cite the fact that men and women are searched in different areas of CCJ as justification for the different policies. Another court in this district previously determined that such logistical concerns cannot justify the treatment of a specific group of detainees. See Gary, 1998 WL 547116 at *2, 9.FN11 This Court agrees. Again, the logistics of processing male and female detainees in different areas does not justify treating men and women differently. Defendants cite Bell to dispute this. Bell, however, does not dictate a different conclusion. The Supreme Court requires balancing of competing interests while according deference to jail and prison administrators. Bell, 441 U.S. at 559, 99 S.Ct. 1861. Nothing in Bell suggests that defendants can justify treating*854 men and women differently by pointing to logistical concerns.

FN11. The cases from the Fifth, Sixth, Eighth, and Ninth Circuits that the Sheriff Defendants cite in support of their contentions are inapposite, because none of them concerned disparate gender treatment with respect to strip search policies.


[13] Headnote Citing References Cook County also contends that women's menstrual cycles justify a policy affording female detainees greater privacy. This is not an ?exceedingly persuasive? justification for the difference between the male and female searches. Male detainees also present hygiene issues. The fact that some female detainees present one different or additional hygiene issue is insufficient to justify the stark gender-based differences between the search policies prior to the time the privacy screens were installed in the male search area at the RCDC.

Last, defendants contend that the differences in charges against men and women justify the differing strip search policies. Apart from the inconsistency that arises from defendants' desire to consider the nature of detainees' charges with respect to Class I and their contrary arguments with respect to Class II, defendants fail to cite any evidence to support the contention that men and women were charged with materially different crimes or posed different security risks.

[14] Headnote Citing References The undisputed facts show, as a matter of law, that the strip searches of the Class I members prior to the installation of privacy screens at the RCDC violated the Equal Protection Clause of the Fourteenth Amendment. The Court enters summary judgment in favor of plaintiffs on that basis. The Court denies both parties' motions for summary judgment, however, with respect to remainder of the Class I plaintiffs' equal protection claims, due to the existence of disputed material facts. Those facts include those that precluded summary judgment for either side on part of the Class I plaintiffs' Fourth Amendment claims, as well as disputed facts concerning the viability of using body scanning machines for male detainees and the necessity of subjecting male detainees to two strip searches.

c. Unlawful punishment
[15] Headnote Citing References[16] Headnote Citing References The Class I plaintiffs contend that certain aspects of the strip search procedures constitute unlawful punishment. The Eighth Amendment does not apply to pretrial detainees. Bell, 441 U.S. at 535 n. 16, 99 S.Ct. 1861; Tesch v. County of Green Lake, 157 F.3d 465, 472-73 (7th Cir.1998). Pursuant to the Due Process Clause of the Fourteenth Amendment, however, pretrial detainees may not be punished, except in connection with infractions committed while in custody. Bell, 441 U.S. at 535, 99 S.Ct. 1861; see also Thompson, 412 F.Supp.2d at 887 (collecting authorities). Due process protections for pretrial detainees in this case are at least as great as the protections afforded to convicted criminals under the Eighth Amendment. Tesch, 157 F.3d at 473. Pretrial detainees ?have an interest in being free from gratuitously severe restraints and hazards.? Hart v. Sheahan, 396 F.3d 887, 893 (7th Cir.2005). Plaintiffs do not have to establish intent. See id. at 892 (?Punishment is not the only motive for brutal treatment. But whatever the motive is, if the brutal treatment is gratuitous, due process in its substantive sense has been violated.?).

[17] Headnote Citing References[18] Headnote Citing References As with the Class I plaintiffs' Fourth Amendment claims, the Court denies summary judgment with respect to the post-privacy screen period, in which significant facts are disputed. For the policies during the earlier period to the extent there are no material factual disputes (the same as recounted above in the Fourth Amendment analysis), it is appropriate to enter summary judgment in favor of the Class I plaintiffs. Again it is undisputed that members of Class I, prior to the installation of privacy screens in the *855 RCDC hallway, were strip searched in large groups, without any minimal form of privacy, where they saw and touched one another. No reasonable jury could find that this policy was ?reasonably related to a legitimate goal.? Tesch, 157 F.3d at 474 (quotation omitted). Rather, this is an example of ?unreasonably harsh treatment meted out to inmates who have not yet been convicted of any crime.? Hart, 396 F.3d at 892.

Accordingly, the Court grants summary judgment to the Class I plaintiffs on their unlawful punishment claim for the period prior to the installation of the privacy screens at the RCDC and otherwise denies their motion on the punishment claims. The Court denies defendants' motions for summary judgment on the punishment claims.

4. Qualified immunity
[19] Headnote Citing References[20] Headnote Citing References The Sheriff Defendants filed a second summary judgment motion contending they are entitled to qualified immunity. Plaintiffs have sued the Sheriff Defendants in their individual and their official capacities. ?[I]t is well established that the qualified immunity doctrine does not apply to official capacity claims.? Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir.2001) (quotation omitted). The Court therefore denies Sheriff Defendants' motion with respect to plaintiffs' official capacity claims. Plaintiffs concede the Sheriff Defendants' motion with respect to plaintiffs' individual capacity claims. Accordingly, the Sheriff Defendants are entitled to summary judgment on qualified immunity grounds in their individual capacities.

5. Cook County's liability
[21] Headnote Citing References In its summary judgment motion, Cook County contends there is no basis to hold it liable for constitutional violations that occurred at CCJ. Under Illinois law, the Cook County Sheriff is an elected county officer. Cook County cannot be held vicariously liable for the Sheriff's, or his staff's, conduct. Moy v. County of Cook, 159 Ill.2d 519, 528-32, 203 Ill.Dec. 776, 640 N.E.2d 926, 929-31 (1994); see also Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir.1995). Thus Cook County is entitled to summary judgment on count seven of plaintiffs' third amended complaint, which seeks to impose liability against Cook County under the doctrine of respondeat superior.

[22] Headnote Citing References Cook County is mistaken, however, when it contends that plaintiffs have not asserted a claim for indemnification against it. Count eight of the third amended complaint asserts such a claim. Cook County acknowledges that with respect to section 1983 claims against county sheriffs, Illinois counties have a duty to indemnify judgments, rendering the counties necessary parties. Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir.2003). Accordingly, Cook County's motion for summary judgment is denied with respect to count eight.

Conclusion
The Memorandum Opinion and Order of February 23, 2009 [# 278] is vacated. For the foregoing reasons, the Court grants the Sheriff Defendants' motion to strike plaintiffs' Local Rule 56.1 statement with respect to paragraph 77, but otherwise denies that motion [# 259]. The Court grants the Sheriff Defendants' motion for summary judgment based on qualified immunity with respect to the Sheriff Defendants in their individual capacities but otherwise denies that motion [# 206]; denies the Sheriff Defendants' motion for summary judgment based on constitutionality of the search policy [# 204]; and grants Cook County's motion for summary judgment with respect to plaintiffs' respondeat superior claims but otherwise denies that *856 motion [# 223]. The Court grants plaintiffs' motion for summary judgment with respect to the claims by the Class II members and the Fourth and Fourteenth Amendment claims of the Class I members for searches that occurred prior to the installation of privacy screens in the hallway at the RCDC but otherwise denies the motion [# 228]. The Court denies as moot plaintiffs' motion to strike defendants' expert [# 255].

United States District Court,
N.D. Illinois,
Eastern Division.
Charles STREETER, Keith Bryant, and Artis Jackson, individually and on behalf of all others similarly situated, Plaintiffs,
v.
SHERIFF OF COOK COUNTY and Cook County, Illinois, Defendants.

No. 08 C 732.
April 7, 2009.

*610 Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Thomas Gerard Morrissey, Thomas G. Morrissey, Chicago, IL, for Plaintiff.

Charles Streeter, pro se.

Artis Jackson, pro se.

Daniel Francis Gallagher, Dominick L. Lanzito, Kevin Mark Casey, Lawrence S. Kowalczyk, Paul A. Ogrady, Terrence Franklin Guolee, Querrey & Harrow, Ltd., Francis J. Catania, Cook County State's Attorney, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, District Judge.

Charles Streeter, Keith Bryant, and Artis Jackson (?Plaintiffs?) filed this putative class action under 42 U.S.C. § 1983 against the Sheriff of Cook County (?Sheriff?) and Cook County, Illinois (?the County?) (collectively ?Defendants?), challenging a strip search policy at the Cook County Jail (?the Jail?) that allegedly violated their Fourth and Fourteenth Amendment rights. (R. 22, Am.Compl.) Currently before the Court is Plaintiffs' motion to certify a class pursuant to *611 Federal Rule of Civil Procedure 23. (R. 48, Pls.' Mot. for Class Cert.) For the following reasons, the motion is granted with a minor modification of the class definition.

BACKGROUND
Plaintiffs are current or former pretrial detainees housed in Division 5 of the Jail. (R. 22, Am.Compl.¶ 1.) They allege that between February 3, 2006, and December 20, 2007, they and other male inmates were subject to unreasonable group strip searches upon returning to Division 5 after court proceedings. ( Id. ¶¶ 2, 6(b).) Specifically, Plaintiffs allege that the Sheriff conducted strip searches of ?upwards of 45 pretrial detainees at a time? in a highly intrusive manor, and without individual partitions in the clothing room of Division 5. ( Id. ¶¶ 3-4.) As of December 20, 2007, Defendants stopped conducting group strip searches of male inmates and began conducting the searches behind individual partitions. ( Id. ¶ 2.) Since 2001, female inmates were given individualized strip searches behind privacy screens. ( Id. ¶ 3.)

Plaintiffs allege two separate claims in their complaint. In Count I, they allege that the group strip searches violated their rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment because they were conducted in an unreasonable and unnecessarily humiliating manner. ( Id. ¶¶ 15-26.) In Count II, they allege that Defendants subjected male inmates to group strip searches while using private strip searches for female inmates, violating their rights under the Equal Protection Clause of the Fourteenth Amendment. ( Id. ¶¶ 27-32.) Plaintiffs ask this Court to certify the following class:

All male inmates at the Cook County Jail who, from February 3, 2006, to and including December 20, 2007, returned to Division 5 at the Jail following a court appearance and were subjected to a group strip search.

(R. 48, Pls.' Mot. for Class Cert. at 1.)

LEGAL STANDARDS
Plaintiffs seeking class certification bear the burden of proving that the class satisfies the requirements of Rule 23. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir.2006); Randolph v. Crown Asset Mgmt., LLC, 254 F.R.D. 513, 516 (N.D.Ill.2008). Under Rule 23(a), a class may be certified if ?(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). Failure to satisfy any one of these requirements precludes class certification. Oshana, 472 F.3d at 513; Randolph, 254 F.R.D. at 516. If the potential class satisfies these requirements, it must then satisfy at least one of the requirements of Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir.2008).

[1] Headnote Citing References[2] Headnote Citing References A district court has broad discretion to certify a class and may modify a proposed class definition if modification will render the definition adequate. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir.2003). In exercising its discretion, the Court does not presume that all well-pleaded allegations are true and can look ?beneath the surface? of a complaint to conduct the inquiries required by Rule 23. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir.2001). However, the Court will not address issues relating to the underlying merits if those issues do not affect class certification. Herkert v. MRC Receivables Corp., 254 F.R.D. 344, 348 (N.D.Ill.2008). ?[T]he propriety of class certification should not turn on [the] likelihood of success on the merits.? Payton v. County of Kane, 308 F.3d 673, 677 (7th Cir.2002).

ANALYSIS
[3] Headnote Citing References Plaintiffs argue that the proposed class satisfies the requirements of Rule 23(a) and Rule 23(b)(3). (R. 50, Pls.' Mem. in Supp. of Class Cert., at 3-9 (?Pls.' Mem.?).) Defendants respond that the proposed class fails to satisfy any of the requirements of Rule 23(a) or Rule 23(b)(3). (R. 51, Cook County's Mem. in Opp. to Class Cert., at 7-13 (?Cook County's Mem.?); R. 54, Sheriff's Mem. in Opp. to Class Cert., at 9-15 (?Sheriff's Mem.?).) When determining whether to certify a class, the Court is not limited to the arguments of the party opposing certification *612 and must make an independent determination about the appropriateness of certifying the class. Davis, 321 F.3d at 649; Herkert, 254 F.R.D. at 348. Accordingly, the Court considers Defendants' arguments in the context of analyzing each of the Rule 23 requirements.

I. Rule 23(a)
A. Numerosity
To satisfy numerosity, Plaintiffs must prove that the class is so large as to make joinder impractical. Fed.R.Civ.P. Rule 23(a)(1). A class of forty or more is generally sufficient to establish numerosity. McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D.Ill.2002). The Court may rely on common sense assumptions or reasonable inferences when ascertaining the size of the class. Phipps v. Sheriff of Cook County, 249 F.R.D. 298, 300 (N.D.Ill.2008). However, ?mere speculation? or ?conclusory allegations? are not sufficient to establish numerosity. Arreola, 546 F.3d at 797.

[4] Headnote Citing References Plaintiffs assert that the proposed class includes at least 10,000 persons. (R. 50, Pls.' Mem. at 3-4.) This estimate is based on Jail records showing that around 100,000 detainees were admitted to the Jail in 2006, and about 10% of those detainees were housed in Division 5. ( Id.) Defendants contend that the class size lacks sufficient evidentiary support. (R. 51, Cook County's Mem. at 7.) The Court disagrees. Plaintiffs have provided a reasonable basis upon which to determine the size of the class using available statistical information, and indeed, evidence submitted by the Sheriff indicates that the proposed class would consist of at least several thousand members. ( See R. 54-2, Sheriff's Mem., Hickerson Aff. ¶ 10) (estimating that between 50-75 inmates return to Division 5 from court every day). Joinder is impractical for a class of that size. See Randolph, 254 F.R.D. at 517 (finding that ?joinder of potentially hundreds of these suits is impractical?). Therefore, the Court concludes that numerosity is satisfied.

B. Commonality
[5] Headnote Citing References In order to meet the commonality requirement, Plaintiffs must show that ?there are questions of law or fact common to the class.? Fed.R.Civ.P. Rule 23(a)(2). ?A common nucleus of operative facts is usually enough to satisfy the commonality requirement of Rule 23(a)(2).? Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998); Puffer v. Allstate Ins. Co., 255 F.R.D. 450, 458 (N.D.Ill.2009). Plaintiffs have identified four questions of law and fact common to the class: ?(1) Are the group strip searches conducted in an unreasonably intrusive manner? (2) Do the group strip searches take longer than is penologically necessary? (3) Were the group strip searches conducted in a manner intended to humiliate and embarrass detainees? (4) Were similarly situated female inmates subjected to the same sort of group strip searches as the proposed plaintiff class?? (R. 50, Pls.' Mem. at 4.) These questions concern ?standardized conduct towards members of the proposed class,? which is sufficient to establish commonality. Keele, 149 F.3d at 594.

Defendants respond that there is no commonality because the strip searches are constitutionally permissible. (R. 51, Cook County's Mem. at 8-9.) This argument essentially attacks the underlying merits of Plaintiffs' claims, which is not an appropriate consideration in ruling on a class certification motion. See Randolph, 254 F.R.D. at 517 (?[T]he Court must evaluate the class certification motion without regard to the ultimate merits of Plaintiff[s'] claims.?). This argument also ignores this Court's prior determination that the validity of the searches must be decided at later stages of the litigation when Defendants' reasons for conducting the searches as they did can be assessed. See Streeter v. Sheriff of Cook County, 576 F.Supp.2d 913, 917-18 (N.D.Ill.2008). For these reasons, the Court concludes that the proposed class satisfies the commonality requirement.

C. Typicality
[6] Headnote Citing References[7] Headnote Citing References To satisfy typicality, Plaintiffs must prove that ?the claims or defenses of the representative parties are typical of the claims or defenses of the class.? Fed.R.Civ.P. 23(a)(3). ?[A] claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [the] claims are based on the same legal theory.? Arreola, 546 F.3d at 798. Plaintiffs argue *613 that their claims are based on the same course of conduct that affected all members of the proposed class: the practice of conducting group strip searches at Division 5. (R. 50, Pls.' Mem. at 5-6.) Defendants respond that individual issues such as ?what each inmate was arrested for, their criminal history, and whether they felt the search too intrusive or too embarrassing? prevent a finding of typicality. (R. 54, Sheriff's Mem. at 11, 14.) These issues will not destroy typicality, however, because ?the likelihood of some range of variation in how different groups of new detainees were treated does not undermine the fact that the claims of each class [member] share a common factual basis and legal theory.? Young v. County of Cook, No. 06 C 552, 2007 WL 1238920, at *6 (N.D.Ill. April 25, 2007) Plaintiffs challenge a standard strip search practice, which they claim all inmates in Division 5 were subjected to upon their return from court proceedings, regardless of their individual circumstances. The named Plaintiffs ?are challenging the same strip search policies and methods as the [class] they seek to represent.? Id. (certifying a class of male detainees who were strip searched upon entry to the Cook County Jail). Accordingly, the Court concludes that typicality is satisfied.

D. Adequacy
To satisfy adequacy, Plaintiffs must show that ?the representative parties will fairly and adequately protect the interests of the class.? Fed.R.Civ.P. Rule 23(a)(4). In assessing adequacy, ?[t]he Court must determine whether the named Plaintiffs: (1) have antagonistic or conflicting claims with other members of the class; (2) have a sufficient interest in the outcome of the case to ensure vigorous advocacy; and (3) have counsel that is competent, qualified, experienced and able to vigorously conduct the litigation.? Hudson v. City of Chicago, 242 F.R.D. 496, 503 (N.D.Ill.2007) (citations omitted).

[8] Headnote Citing References Defendants argue that the named Plaintiffs are inadequate because ?felons cannot be adequate class representatives.? (R. 51, Cook County's Mem. at 10; see also R. 54, Sheriff's Mem. at 11-12.) Defendants cite no case law supporting this proposition, and indeed, if convicted felons could not serve as class representatives, ?there would be no such thing as a class action in the prison or jail context.? Parish v. Sheriff of Cook County, No. 07 C 4369, 2008 WL 4812875, at *5 (N.D.Ill. Oct.24, 2008). Obviously, there are hundreds of cases in this district alone where prisoners or pretrial detainees with criminal convictions have served as class representatives. See, e.g., Parish, 2008 WL 4812875, at *5; Young, 2007 WL 1238920, at *6-7; Bullock v. Sheahan, 225 F.R.D. 227 (N.D.Ill.2004). To the extent Defendants are arguing that the named Plaintiffs have credibility problems because of their convictions that preclude them from serving as class representatives, ?[c]redibility is not a requirement of a class representative, and whether or not a plaintiff is credible is irrelevant to that person's ability to be a class representative.? Phipps, 249 F.R.D. at 301 (citation omitted). Furthermore, Defendants have not shown that the named Plaintiffs' criminal histories differentiate them from other class members or make their interests different from or antagonistic to those of the class as a whole.

Defendants also argue that named Plaintiff Artis Jackson (?Jackson?) is not a proper class representative because he was not housed in Division 5 during the class period. (R. 51, Cook County's Mem. at 10.) However, the Court is persuaded by Plaintiffs' evidence that Defendants have confused the Artis Jackson named here with another Artis Jackson, also once housed at the Jail, who has a different birth date and police ?IR? number.FN1 (R. 56, Pls.' Reply at 10; id., Ex. 1, Flaxman Decl.)

FN1. Plaintiffs appear to be asking the Court to grant them leave, retroactively, to add Jackson as a named Plaintiff in their amended complaint. (R. 56, Pls.' Reply at 10 n. 3.) Although the amended complaint was filed as a matter of right under Rule 15(a)(1), it does appear that Plaintiffs were required to obtain leave from the Court to add Jackson as a party. See Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 736 (7th Cir.1986) (?Although Federal Rule of Civil Procedure 15(a) permits a party to freely amend its complaint in a timely fashion ... Rule 21 requires a court order to add or drop parties.?). This is a correctable defect, however, and does not require dismissal. Id. The Court grants Plaintiffs leave to add Jackson as a named Plaintiff, retroactive to the date the amended complaint was filed.


*614 Upon review, the Court concludes that the named Plaintiffs meet the adequacy requirements. Defendants do not challenge the adequacy of class counsel, and the Court finds them to be experienced in prisoner litigation and qualified to serve as class counsel in this case. See, e.g., Phipps, 249 F.R.D. at 298; Calvin v. Will County, No. 03 C 3086, 2004 WL 1125922 (N.D.Ill. May 17, 2004); Bullock, 225 F.R.D. at 227. For the reasons stated above, the proposed class satisfies all four requirements of Rule 23(a).

II. Rule 23(b)(3)
A. Predominance
The predominance requirement of Rule 23(b)(3) ?tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.? Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The predominance requirement, although similar to questions of commonality and typicality, is more demanding than either of those Rule 23(a)(2) requirements. Id. at 623-24, 117 S.Ct. 2231. When a proposed class challenges a uniform policy, the validity of that policy tends to be the predominant issue in the litigation. Herkert, 254 F.R.D. at 352. However, if individual issues predominate, a class action is not a superior method for adjudication and certification should be denied. Szabo, 249 F.3d at 675.

[9] Headnote Citing References Defendants argue that individual issues regarding the reasonableness and necessity of the searches preclude a finding of predominance. (R. 54, Def. Sheriff's Mem. at 12-14.) The Court disagrees. Plaintiffs allege that the Sheriff had a uniform practice that applied to all male inmates returning from court regardless of their individual circumstances. See Streeter, 576 F.Supp.2d at 916-17. Plaintiffs' claims turn on the uniform manner in which the group strip searches were conducted, and this question predominates over any individual issues. See Calvin, 2004 WL 1125922, at *4 (?[T]he ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriff's policy avoided all such inquiry....?); Young, 2007 WL 1238920, at *8 (finding uniform strip search practice predominated over individual issues); Bullock, 225 F.R.D. at 230 (finding predominance satisfied where primary issue was whether sheriff violated inmates' rights under strip search policy). Accordingly, this Court finds that the predominance requirement is satisfied.

B. Superiority
[10] Headnote Citing References[11] Headnote Citing References The second criterion under Rule 23(b)(3), superiority, requires Plaintiffs to demonstrate that ?a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.? Fed.R.Civ.P. Rule 23(b)(3). ?A class action is superior where potential damages may be too insignificant to provide class members with incentive to pursue a claim individually.? Herkert, 254 F.R.D. at 352-53. The class action device is also superior to other methods of adjudication ?when the judicial economy from consolidation of separate claims outweighs any concern with possible inaccuracies from their being lumped together in a single proceeding for decision by a single judge or jury.? Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir.2003).

[12] Headnote Citing References Plaintiffs argue that a class action would be more manageable than hundreds of individual cases brought by Jail inmates, particularly when the amount of damages per class member is likely to be in the order of $100 to $1,000. (R. 50, Pls.' Mem. at 7-8.) Cases involving nominal damages are especially well-suited to resolution by class action. Quiroz v. Revenue Prod. Mgmt., Inc., 252 F.R.D. 438, 444-45 (N.D.Ill.2008).

Defendants argue that a class action is not superior for several reasons. (R. 51, Cook County's Mem. at 11-13; R. 54, Sheriff's Mem. at 14-15.) First, they argue that the Duran consent decree precludes any further litigation by pretrial detainees. (R. 54, Sheriff's Mem. at 14-15.) This argument is without merit. The Duran consent decree addresses such issues as overcrowding, food quality, personal hygiene, visiting privileges, law library access, and detainee exercise at the Jail. See *615 Duran v. Elrod, 760 F.2d 756 (7th Cir.1985); see also Arreola, 546 F.3d at 797 (observing that Duran addressed ?overcrowding and related issues?). The decree did not address the group strip searches at issue in this litigation. See Young, 2006 WL 4500062, at *6-7 (finding that Duran decree did not preclude claims based on an alleged unconstitutional strip search policy at the Jail).

Defendants next argue that a class action is not superior because class members were not actually injured by the searches: ?Since there is no showing of any ?mad rush to the courthouse? to file jail strip search cases, perhaps it's because there is no true injury from such searches.? (R. 51, Cook County's Mem. at 12.) Instead, Defendants argue that class members actually benefitted from the searches because they served to remove contraband from the Jail. ( Id.) The Court rejects this argument. Plaintiffs have alleged that they were injured by the searches, and if their constitutional rights were violated, they would be entitled to an award of nominal damages even if they cannot prove actual physical or emotional injury. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The fact that class members may only recover a small amount of damages weighs in favor of certifying a class. As the Seventh Circuit observed, ?The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.? Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir.2007).

Defendants also argue that the class definition is unworkable because every inmate of the Jail returns to Division 5 after a court proceeding, and thus the class definition encompasses inmates who were housed in divisions other than Division 5. (R. 51, Cook County's Mem. at 13.) Defendants argue that ascertaining the members of the proposed class would require a costly and burdensome search of the Jail's records to determine ?who was strip searched and where.? ( Id. at 13-14.) In their reply, Plaintiffs clarify that they only intended to include inmates who were actually housed in Division 5 in the class definition. (R. 56, Pls.' Reply at 4.) The Court agrees with Defendants that there is some ambiguity in the proposed class definition, and will modify the definition accordingly to include only those inmates who were housed in Division 5. With this clarification, ascertaining the members of the class will not be ?so daunting as to make the class definition insufficient.? Herkert, 254 F.R.D. at 348-49 (amending class definition to provide more readily available means to ascertain the class).

With the class definition modified, the Court concludes that Plaintiffs have satisfied the predominance and superiority requirements of Rule 23(b)(3).

CONCLUSION
For the foregoing reasons, the Court grants Plaintiffs' motion for class certification (R. 48), with a minor modification of the class definition. Plaintiffs will be permitted to represent the following class:

All male inmates at the Cook County Jail who, from February 3, 2006 to and including December 20, 2007, were housed in Division 5 of the Jail and returned to Division 5 following a court appearance and were subjected to a group strip search.

The parties are directed to reevaluate their settlement positions in light of this opinion and to exhaust all efforts to settle this case. The parties shall appear for a status hearing on April 17, 2009 at 9:45 a.m. to set a firm litigation schedule for this case.

United States District Court,
N.D. Illinois,
Eastern Division.
Quentin BULLOCK, and Jack Reid, individually and on behalf of a class, Plaintiffs,
v.
Thomas DART, Sheriff of Cook County, in his official capacity, and Cook County, Defendants.

No. 04 C 1051.
Feb. 27, 2009.

*949 Thomas Gerard Morrissey, Thomas G. Morrissey, Chicago, IL, Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.

Bernard E.J. Quinn, E. Michael Kelly, Hinshaw & Culbertson, Chicago, IL, for Thomas Dart.

Francis J. Catania, Patrick T. Driscoll, Jr., Cook County State's Attorney, Chicago, IL, for Cook County.

Frank Joseph Marsico, Hinshaw & Culbertson, Chicago, IL, for Thomas Dart, Cook County.

MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, District Judge.

On July 30, 2008, 568 F.Supp.2d 965 (N.D.Ill.2008), I entered an order resolving cross-motions for summary judgment in this action (the ?July 30 Order?). At issue was whether defendants Michael Sheahan (then the Cook County Sheriff) and Cook County violated the Fourth and/or Fourteenth Amendment rights of plaintiffs Quentin Bullock, Jack Reid, and a class of male individuals in the custody of the Cook County Department of Corrections (?CCDOC? or the ?Jail?). I granted plaintiffs' motion for summary judgment on claims that defendants' policy of performing blanket strip searches on male inmates returning to CCDOC from court hearings, where those hearings resulted in the dismissal of certain charges and there was no additional basis for the inmates' detention, violated the Fourth and Fourteenth Amendments. In particular, I held that defendants' policy and practice of allowing female court returns, but not male court returns, to avoid being subjected to a strip search by electing to remain in the Jail's receiving area while their release was processed, rather than return to their housing divisions, violated plaintiffs' right to equal protection, I also held that defendants' policy and practice of affording certain privacy accommodations to female court returns who are strip searched but not to male court returns, all of whom are strip searched, violated plaintiffs' right to equal protection. I further held that the blanket strip search policy of all male court returns violated plaintiffs' Fourth Amendment rights. I also denied defendants' motion, which sought summary judgment of non-liability on all of plaintiffs', claims, in its entirety. In particular, I held that defendants are not immune from liability under the Eleventh Amendment as a matter of law, and that a material factual dispute existed as to whether the length of plaintiffs' detention was reasonable.FN1

FN1. The July 30 Order stated that both sought parties summary judgment on the issue of unreasonable delay. In fact, only defendants sought summary judgment on this issue.


Now before me is defendants' motion for reconsideration of my July 30 Order. For the reasons discussed below, that motion is granted in part. To the extent the motion is granted, on reconsideration, I resolve the parties' cross-motions for summary judgment as set forth below.

*950 I.
At the outset, I feel compelled to note that ascertaining which facts are genuinely in dispute in this matter has been complicated by the manner in which the parties handled their Local Rule 56.1 submissions. Instead of setting forth, and responding to, short factual statements as the Rule requires, the parties approached their filings as a platform for advancing competing characterizations of the evidence and for highlighting their respective experts' opinions. Defendants, in particular, packed multiple, often conclusory assertions and opinions into each factual ?statement,? followed by a string cite to various portions of the record. Plaintiffs (and I) were then faced with the burden of trying to match up the various propositions in each numbered statement with the corresponding citations and determining whether the statements were, in fact, supported by the evidence. This approach flies in the face of both the letter and the spirit of L.R. 56.1.

In addition, defendants typically responded to plaintiffs' statements with their own ?undisputed? version of the same or related facts, which recharacterized, amended, or added to the facts plaintiffs set forth. This type of response is obviously unacceptable, as it fails to respond to plaintiffs' facts and also introduces new facts that plaintiffs have no means of controverting. If defendants cannot dispute plaintiffs' properly supported facts, they must admit them. To the extent defendants wish to convey that plaintiffs' facts, although undisputed, fail to tell the whole story, defendants may add, in a separate numbered statement, whatever factual material they believe is necessary to complete the picture. That is the purpose of L.R. 56.1(b)(3)(C). I remind both parties (for plaintiffs, while generally more restrained in their factual statements, were not immune from narrative, non-responsive, argumentative responses) that I am entitled to demand strict adherence to L.R. 56.1, and that I may refuse to consider facts presented in a fashion inconsistent with the rule. Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008).

With this introduction, I turn to the facts. A short glossary of terms is useful to begin. Throughout this opinion, I refer to inmates who return to the Jail after an appearance in court as ?court returns.? I refer to court returns whose appearance culminates in the issuance of a mittimus dismissing particular charges against them as ?possible discharges.? I refer to the mittimus itself as a ?dismissal mittimus.? FN2 A possible discharge becomes an ?actual discharge? if the Sheriff determines, based upon a review of the inmate's records by CCDOC staff, that the inmate is not subject to any additional charges, warrants, or holds and may therefore be released.

FN2. I note that the parties use various terms to refer to such a mittimus, including, for example, ?court ordered release,? and ?court ordered discharge.? I am mindful that a mittimus does not order or effect an inmate's release but rather dismisses certain charges against the inmate, and I have chosen the term ?dismissal mittimus? to reflect this distinction.


The parties agree that as of March 2008, the Jail housed 9,165 inmates. Of these, 8,436 were male and 729 were female-a ratio of approximately nine to one. CCDOC inmates live in one of the Jail's ten housing divisions, each of which operates semi-autonomously and has its own separate building on the Jail grounds. Eight of the divisions are for men, and two are for women. Inmates are housed according to their security classifications, which are established based on a number of factors, including criminal history, prior *951 convictions, prior disciplinary problems, known gang affiliation, any history of drug or alcohol abuse, etc. Roughly 32% of all CCDOC inmates (male and female) have a maximum security classification.

The Receiving, Classification and Diagnosis Center (?RCDC?) is the Jail's hub of inmate movement. All inmates who transfer between housing divisions, or who enter or exit the Jail for any reason, including court appearances, medical or psychiatric treatment, participation in alternative programs, etc., must be processed through RCDC. In addition, the RCDC is used by CCDOC and outside agencies for various other purposes. For example, the Illinois State Department of Corrections conducts parole hearings twice a month in the male intake area of the RCDC. Inmates attending these hearings are ?staged? in one of the several bullpens that are also used for staging inmates before and after they attend court.

The parties do not dispute the physical characteristics of the RCDC, only the extent to which the premises are, or could be, amenable to certain activities. The parties agree on the following: An area referred to as the ?male intake area? contains four small bullpens identified by letters A, B, C, and D, and six larger bullpens identified by numbers 1 through 6. The numbered bullpens are referred to as the ?interior bullpens.? In addition to the bullpens just described, there are five ?exterior bullpens,? which are located outside the male intake area.FN3 Both male and female inmates who enter or leave the Jail, including for court appearances, may be staged for transit at different times in these bullpens. Defendants assert that due to security concerns, however, inmates of different security classifications and/or different discharge statuses generally are not commingled in the various bullpens.FN4 Some of the bullpens described above have toilet facilities while others do not. The parties disagree about how many inmates can be held in the various bullpens.

FN3. I assume that these five ?exterior bullpens? are the same as those that are alternately referred to as ?court return bullpens.? Defendants also refer to something called the ?bonding cage,? also outside the intake area, and it is unclear whether this is something other than the exterior bullpens.


FN4. Plaintiffs point out, and there is evidence to suggest, that certain classes of inmates are, on occasion, commingled. CCDOC's position is that although this is sometimes inevitable due to logistical constraints, it is highly undesirable from a security perspective.


Each weekday, approximately 800 to 1,200 inmates attend court, and again the ratio of men to women is approximately nine to one. Inmates are first transported from their housing divisions to the RCDC, where they are staged in the various bullpens while CCDOC transportation officers verify and prepare the inmates' court paperwork. Roughly half of the inmates attending court on any given day attend hearings at the Criminal Courts Building (?CCB?) in Chicago, which is adjacent to the CCDOC facilities and is accessed by a system of underground tunnels. Inmates whose court hearings are at one of the ?outlying? courts are transported from the RCDC to the courts and back by bus. Inmates going to court at the CCB are taken through tunnels from the RCDC into the basement of the CCB, which area is known as the ?Bridge.? The Bridge is separated by walls into two sides known as the ?male bridge,? which contains holding cells numbered 4-8, and the ?female bridge,? which contains holding cells numbered 1-3. Confusingly, inmates of either sex may be held in the cells located on either side (but male and female inmates presumably are not commingled). The Bridge is staffed by CCDOC officers during*952 the hours of inmate movement from the Jail to the court. Transportation officers bring inmates from the Bridge to the inmates' next waystation-the courtroom lockups-using dedicated elevators within the CCB. The lockups are generally adjacent to the various courtrooms (though some or all courtrooms share lockup facilities with one other courtroom) and are staffed by courtroom deputies, who take custody of the inmates upon their arrival. At the conclusion of the morning court calls, Court Services' transportation team takes the inmates from the lockups back down to the Bridge. From there, they are returned to the Jail via the RCDC, and ultimately, in most cases, to their respective housing divisions, following a procedure that is at least as complex as the one required for their arrival at the court.

It should be apparent from the above that CCDOC has a complex system requiring interagency coordination for transporting inmates from their living quarters within the Jail to the courts and back. It is also clear from the record that the logistics of moving hundreds of inmates presenting a range of security risks to several different locations requires significant time. Indeed, inmates with court appearances are awakened between 4:00 and 4:20 a.m. to ensure their prompt arrival at court calls beginning at 9:00 or 9:30 a.m. And at the end of each day, inmates returning from outlying courts or from late court calls at the CCB may return to the RCDC as late as 9:00 p.m.

Every court return, regardless of the court's disposition of his or her case, FN5 is required to return to the Jail before being released. Both male and female court returns are transported from the courts back to the RCDC. At this point, the procedure for processing court returns back into (or, in the case of actual discharges, out of) the Jail diverges based on two factors: the inmate's sex, and whether the inmate obtained a dismissal mittimus. As explained below, the combination of these factors is what determines whether and how a court return is subject to a strip search. The lack of uniformity between the procedures applied to male actual discharges and female actual discharges is the basis for plaintiffs' claims.

FN5. For ease of reference, I sometimes refer to the disposition of a court return's ?case.? What I mean in each instance is the disposition of the particular charges or matter before the court on the day of the hearing.


Before delving into these procedures, a few additional statistics provide helpful context. A representative study using data from 2002-2005 shows that on average, 209 male inmates per day receive dismissal mittimuses (i.e., they become ?possible discharges?), although CCDOC physically transports only 170 of these inmates to and from court.FN6 The same study showed a peak of 291 possible discharges on a single day (of whom CCDOC transported 243). The corresponding numbers for female inmates show an average of 38 possible discharges per day (of whom 31 are transported), with a peak of 55 (45 transported). On average, 57% of male possible discharges became actual discharges.FN7 Stated differently, an average of *953 43% of male court returns who receive dismissal mittimuses are not eligible for release (i.e., do not become actual discharges) due to other holds. The parties do not dispute these figures.

FN6. The remainder are ?electronic monitoring? or ?papers only? inmates, who are not physically transported from the Jail to the court and back, but who are nevertheless subject to CCDOC monitoring or are in CCDOC custody. Both numbers are relevant, since although only the inmates who are transported to and from court are subject to the challenged strip search, CCDOC must process the mittimus papers of all of the inmates with court proceedings to determine whether they may be discharged.


FN7. The study does not provide a corresponding percentage for female inmates.


At all times relevant to this case, the policy and practice of CCDOC has been to strip search all male and female court returns who return to their housing divisions after a court appearance, regardless of the disposition of their cases. It has not been CCDOC's policy or practice during the relevant time period to strip search court returns, male or female, in the RCDC.

All male court returns, including those returning from court with dismissal mittimuses, are required to proceed from the RCDC to their respective housing divisions while the Records Department of the CCDOC processes their paperwork. If a male court return's mittimus indicates that he is a possible discharge, an administrative assistant in the Discharge Unit of the Records Department checks CIMIS (a computerized record system containing case information on each inmate), as well as the inmate's paper ?record pack? to determine whether the inmate is an actual discharge. If so, the inmate is brought back from his division to RCDC, where his identity is verified and he is released. In the case of plaintiffs Bullock and Reid, this process took eight-and-a-half and eight hours respectively.FN8

FN8. The amended complaint states, ?The detention of plaintiff Bullock for approximately eight and one-half hours and plaintiff Reid for eight hours after judges determined they should be released from custody constitutes deliberate indifference to the rights of the plaintiffs.? It is not clear from this language, and the parties' summary judgment papers do not clarify, whether plaintiffs began counting at the time the judge signed the dismissal mittimus, at the time plaintiffs were returned to CCDOC custody after their hearings (recall that inmates are in the custody of the courtroom deputy at least until they leave the courtroom lockups, and apparently remain in the custody of Court Services for some time thereafter en route to the Jail), at the time they actually arrived at the Jail, or some other time.


The procedure by which male court returns are searched is as follows: (1) the inmates are lined up at arm's length from each other; (2) the inmates are instructed to remove all of their clothing; (3) the inmates are then instructed to extend their arms and legs apart; and (4) the inmates are ordered to squat three or four times, and to cough while squatting. The number of inmates being searched at once varies; there is testimony that as many as 50 male inmates have been searched together, but that generally the number is lower.

Female court returns are processed differently upon their return from court. Upon or shortly after their arrival at RCDC, female court returns are broken down into two groups, according to the disposition noted on their mittimuses. All female court returns other than those who received dismissal mittimuses are required, like their male counterparts, to return to their housing divisions, where they are strip searched. But female court returns whose mittimuses show they are possible discharges are segregated into a separate bullpen within the RCDC while the CCDOC staff consults CIMIS and reviews their records to determine if they are eligible for release. If these reviews show that there are no additional holds on the possible discharges, their street clothing is brought to them, and they may elect whether to return to their divisions to retrieve their personal property, in which case they are subject to a strip search, or instead to be discharged immediately and return within thirty days for their personal *954 property.FN9 The parties dispute the average time it takes for female actual discharges to be released, but there appears to be no dispute that female court returns-regardless of whether they elect to remain in the RCDC or return to the housing divisions-are generally discharged in appreciably less time than the eight and eight-and-a-half hours alleged by plaintiffs Bullock and Reid.FN10

FN9. Defendants state that roughly 90% of women entitled to immediate discharge elect to return to their divisions.


FN10. Plaintiffs allege that the process averages two hours for female actual discharges. Defendants raise several colorable objections to plaintiffs' evidence, including that it purports to be based on data produced by defendants but does not accurately reflect that data. Both parties reference the underlying data by document control number (i.e., ?Bates? number), not by exhibit number, and I have been unable to locate the data in the record. Nevertheless, in their response to plaintiffs' statement of fact, defendants cite several discharge times they believe are reflected in that data, ranging from two hours and forty-five minutes to four hours and forty-five minutes. Thus, although this evidence is obviously insufficient to compare averages, even the longest female discharge time cited by defendants is considerably shorter than eight hours.


The option for female possible discharges to remain in the RCDC while their records are reviewed and their release is processed is, the parties, agree, the result of an injunction issued in Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 (N.D.Ill., Aug. 20, 1998) (Coar, J.). During that litigation, in March of 1997, Judge Coar preliminarily enjoined the Cook County Sheriff from strip searching female possible discharges, ?unless after their return a computer check of their record indicates there are other reasons for holding the inmate or unless the female court return [w]ants to return to her living quarters to recover personal items.? Id., Docket No. 37 (minute order). Pursuant to this injunction, which later became final, the Executive Director of the Jail issued a memorandum in 1997 setting forth the procedure described above. Around the same time, the CCDOC executive staff held at least one or two meetings to consider whether a similar policy could be instituted for male court returns but concluded it would not be feasible due to the number of male court returns and the lack of available space to segregate male possible discharges within the RCDC or elsewhere in the Jail facility.

Plaintiffs also complain that, in addition to the fact that female possible discharges may elect not to return to their divisions (and thus avoid the strip search), female court returns who do return to their divisions are strip searched in more favorable conditions than their male counterparts. In particular, while female inmates are also searched in groups, privacy screens prevent them from seeing one another. The parties agree that privacy screens were instituted for women as a result of claims brought in Wilkes v. Sheahan, 01 C 1592 (N.D.Ill.2001).FN11 In that case, a group of female inmates alleged that the group strip searches to which they were subjected were unsanitary and humiliating because women who were menstruating were forced to remove their sanitary napkins, causing blood to run down their legs and onto the floor, in view of other inmates.

FN11. Plaintiffs assert that it was this lawsuit that prompted the use of privacy dividers for women. Defendants do not properly admit or deny plaintiffs' statement, but they acknowledge the lawsuit and also admit that privacy dividers are used in order to protect women from ?embarrassment related to menstruation? during searches. Accordingly, I consider plaintiffs' statement undisputed.


Since the present lawsuit was filed, defendants have begun using privacy screens *955 during male strip searches as well. In February 2007, the Sheriff installed privacy screens for searching male and female new inmates (or ?arrestees?) arriving to the Jail. Up to 37 new male inmates can be strip searched at a time with the privacy screens, and approximately 200 to 350 new male inmates are processed into the Jail on a daily basis. Also since 2007, defendants have been using privacy screens when male court returns are returned to their housing divisions and strip searched.

II.
Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir.2007); Fed.R.Civ.P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A genuine issue of material fact exists when ?the evidence is such that a reasonable jury could return a verdict for the nonmoving party.? Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party, however, ?must do more than simply show that there is some metaphysical doubt as to the material facts.? Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). ?The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].? Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

Plaintiffs seek summary judgment on the following claims:

1. The strip searching of all male court discharges and not all female court discharges violates the Equal Protection Clause.

2. The strip searching of all male court discharges in large non-private group settings with up to fifty inmates while the female court discharges, who opt to return to the housing divisions, are afforded privacy violates the Equal Protection Clause.

3. The strip searching of all male court discharges not based upon reasonable suspicion that they are concealing contraband violates the Fourth Amendment.

4. Assuming, arguendo, the Defendants are entitled to strip search all male court discharges, the manner in which the strip search is conducted, in large non-private group settings violates the Fourth Amendment.

Defendants oppose plaintiffs' motion and seek summary judgment in their favor on the grounds that 1) the strip search policy and practice applied to plaintiffs was not unreasonable; 2) plaintiffs cannot prevail on their equal protection claims; 3) plaintiffs' ?unreasonable delay? in discharge claims are not actionable; and 4) defendants are immune from suit under the Eleventh Amendment.

A. Equal Protection
[1] Headnote Citing References The essential mandate of the Equal Protection Clause is that ?all persons similarly situated should be treated alike.? City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). Although the Fourteenth Amendment ?does not take from the States all power of classification,? *956 Personnel Administrator v. Feeney, 442 U.S. 256, 271, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), ?a policy that expressly discriminates on the basis of gender must carry the burden of showing an ?exceedingly persuasive justification? for the differing treatment,? Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (7th Cir.1983) (citing Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)). In my July 30 Order, I held that plaintiffs had satisfied the threshold requirement of proving that male and female actual discharges are similarly situated, that there was no material dispute about defendants' intent, and that defendants had failed to show an exceedingly persuasive justification for their disparate treatment.

[2] Headnote Citing References On reconsideration, I again conclude that male and female actual discharges are similarly situated. I am mindful that the sheer number of men versus women means that it may require more of defendants to develop a system in which male possible discharges are segregated and processed separately from other male court returns than it did for them to develop a system for segregating and processing female possible discharges separately from other female returns. I am also mindful of the physiological differences between men and women. These distinctions, however, go to whether any or all of the differences in treatment plaintiffs allege are justified, not to whether male and female actual discharges are similarly situated. ?The similarly situated inquiry focuses on whether the plaintiffs are similarly situated to another group for purposes of the challenged government action.? Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.1994).

The challenged action in plaintiffs' first equal protection claim is the systematic strip searching of male actual discharges, whom defendants have no authority to detain, other than for a reasonable time incident to outprocessing. Plaintiffs do not challenge defendants' policies or practices for strip searching CCDOC inmates generally, or even for strip searching court returns other than those who are to be processed out. Thus, the most salient feature of both the plaintiff class and the comparison group of female actual discharges is their discharge status, and they are similarly situated in that respect. As to plaintiffs' second claim, the challenged action is CCDOC's gender-specific use of privacy dividers. There is no question that strip searches are invasive by nature, or that regardless of one's gender, the level of invasiveness is heightened when searches are conducted in the view of others. That women menstruate may justify some level of differential treatment, but it does not alter the similarly situated inquiry. Accordingly, I again hold that plaintiffs are similarly situated to female actual discharges.

[3] Headnote Citing References On the issue of intent, both parties appear to believe that for plaintiffs to prevail on their equal protection claim, they must demonstrate discriminatory intent beyond simply pointing to a policy and practice that facially distinguishes between male and female court returns. This is understandable, since many cases invoking the Equal Protection Clause are concerned with statutes, ordinances, or other state action that is facially neutral but that disproportionately affects one group of individuals. See, e.g., Feeney, 442 U.S. 256, 99 S.Ct. 2282 (1979) (upholding facially gender-neutral veterans' preference statute that disproportionately benefitted men); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (upholding facially race-neutral employment eligibility test that adversely impacted black applicants); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) *957 (discharging from custody Chinese citizens imprisoned pursuant to facially neutral ordinance arbitrarily applied against Chinese). In such cases, because ?purposeful discrimination is ?the condition that offends the Constitution,? ? Id. at 274, 99 S.Ct. 2282 (quoting Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)), to prevail on an equal protection claim a plaintiff must prove not only adverse impact but also invidious intent.

[4] Headnote Citing References This, however, is not such a case. The CCDOC policy and practice of segregating female possible discharges from the remainder of the female court returns, such that female actual returns may elect to avoid strip searches, is not gender-neutral on its face. Defendants claim that their strip search policy and practice is, in fact, gender neutral because all court returns-male and female alike-are subject to strip searches if they return to their divisions. This simply ignores the part of the policy that excepts female actual discharges from the requirement of returning to their living quarters. There is no question that the policy adopted pursuant to the Gary injunction facially applies only to female court returns. In this respect, this case is not analogous to those cited above, but is more similar to Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)(public university's policy of admitting only women to school of nursing held unconstitutional); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (zoning ordinance that required special use permit for group home for mentally retarded held unconstitutional); and Mary Beth G. v. City of Chicago 723 F.2d 1263 (7th Cir.1983) (city's practice of strip searching female misdemeanor offenders while male misdemeanor offenders were subject only to hand searches held unconstitutional), There was no discussion, in these cases, of intent, presumably because the challenged state action discriminates on its face, and its purpose for doing so does not affect the level of scrutiny to which it is subject. See Miss. Univ. for Women, 458 U.S. at 725, 102 S.Ct. 3331 (statutes intended to ?protect? women subject to same heightened scrutiny as any policy that expressly discriminates based on gender). Likewise, plaintiffs here need not make any further showing of defendants' intent.

[5] Headnote Citing References For the reasons discussed above, I again conclude that defendants must show an ?exceedingly persuasive justification for the classification,? that the classification serves ?important government objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.? Miss. Univ. for Women, 458 U.S. at 724, 102 S.Ct. 3331 (internal quotations omitted). On reconsideration, I find that this is a question that must be answered by a jury.

The challenged policies cannot be analyzed in a vacuum but must be viewed in context, taking into account how they came into existence and have evolved over time. That a portion of the CCDOC inmate population must attend court each weekday is not a new phenomenon. But a significant increase in the prison population and evolving security issues have made the logistics of transporting inmates from their housing divisions to and from the various courts in Chicago and outlying districts increasingly complex.

Prior to 1992, inmates attended court in their civilian clothes, rather than in prison garb. In the event an inmate's court appearance resulted in the dismissal of the charges then before the court, Court Services would call the Records Unit at CCDOC to find out whether any additional charges, warrants, or holds prevented that *958 inmate's release from custody. If not, the inmate was released by Court Services and was not required to return to CCDOC at all, other than to pick up his or her personal belongings at a later time. That process changed in approximately 1992, when the inmate population of CCDOC experienced a dramatic increase. Prisoners were no longer permitted to attend court hearings in their street clothes, and for at least this reason, they were required to return to the Jail after court appearances, regardless of the court's disposition of the pending charges.

By 1996, when the Gary plaintiffs brought their lawsuit, CCDOC had a written policy, set forth in General Order 13.1, that required all court returns, including male and female possible discharges, to be strip searched. All court returns were also required to return to their housing divisions within the Jail, regardless of the disposition of their cases. The Gary plaintiffs (a class of female actual discharges) alleged that the policy was not enforced as written, and that in practice, all female court returns were subjected to systematic strip searches in the receiving area of the Jail, FN12 while male court returns were not regularly strip searched at all. See Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 (N.D.Ill., Aug. 20, 1998) (Coar, J.).

FN12. I presume that the ?Receiving Area? referred to in Judge Coar's opinions refers to the RCDC.


The parties in Gary agreed that pursuant to General Order 13.1, female court returns were systematically strip searched in the RCDC before returning to their housing divisions. The defendant conceded that male court returns were not strip searched in the RCDC pursuant to General Order 13.1, explaining that the number of male court returns and the limited space available had for years made strip searching male returns in the RCDC ?just about impossible.? Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *2 (N.D.Ill., Aug. 20, 1998). Moreover, the defendant in Gary presented no evidence that the Sheriff's standard practice was to strip all male inmates returning from court. The Gary court thus concluded that there was no dispute that female court returns were systematically strip searched, while male court returns were not. The court further found that for the purpose of the plaintiffs' claims, the male and female inmate populations were similarly situated. Accordingly, the court held, pursuant to Mary Beth G. and Mississippi University for Women, that the defendant bore the burden of showing an ?exceedingly persuasive justification? for the differing treatment.

The Gary court went on to state:

Remarkably, the defendant does not even attempt to argue that such a policy is related to any important government objectives. Instead, the defendant tries to convince this court that there is no disparity in the treatment of the male[s] and females. The women are strip searched, the defendant contends, pursuant to the defendant's standard operating procedure that all detainees returning from court, both male and female, are to be strip searched. Although such a written policy does exist, the evidence has clearly shown that the actual practice in the Jail has not reflected this policy for nearly a decade.

Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *9 (N.D.Ill., Aug. 20, 1998) (citations to record omitted). The court therefore concluded that the defendant had not met its burden of justifying the differential treatment, and that there was no issue of *959 material fact on the issue of liability under the Equal Protection Clause.

The Gary court also found that the defendant's practice violated the plaintiffs' Fourth Amendment rights. The court noted that even assuming female court returns posed a security risk if they returned to their housing divisions without being strip searched, ?a simple change in the processing of individuals in the plaintiff class would eliminate? the need to strip search the plaintiffs, all of whom were possible discharges upon their return to the Jail and became actual discharges after a records check revealed no outstanding warrants of holds. Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *14 (N.D.Ill., Aug. 20, 1998). The court explained:

Executive Director Velasco testified that the Sheriff has the ability to review, in a very short period of time, the six or eight females that are going to be discharged on a daily basis to make a determination whether there are other charges or holds pending. Furthermore, Assistant Director Maul testified that it is feasible to discharge females from the Receiving Room if they agreed to waive picking up their property in their cells, and instead have their property brought to them.

Id. (citations to record omitted).

Several considerations emerge from my reexamination of the Gary case and its relevance to plaintiffs' claims. As noted above, the parties agree that CCDOC's current policy and practice was instituted pursuant to the Gary court's order enjoining the Cook County Sheriff from strip searching female possible discharges, ?unless after their return a computer check of their record indicates there are other reasons for holding the inmate or unless the female court return [w]ants to return to her living quarters to recover personal items.? That order plainly directs the Sheriff to adopt procedures facially specific to female possible discharges, as was indeed appropriate in view of the factual record in that case.

It is clear from this history that the gender-specific policy adopted pursuant to Gary was instituted as a means of righting particular constitutional wrongs visited on female inmates in a particular context. It is reasonable to assume, as the Gary court apparently concluded, that a gender-based classification was appropriate based on the record in that case. See Mississippi University for Women, 458 U.S. 718 at 728, 102 S.Ct. 3331 (?In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened?). Nevertheless, even assuming the policy adopted pursuant to the Gary injunction was warranted under the circumstances of that case, defendants still bear the burden of proving in this case, on this record, that the security concerns they assert justify maintaining a facially discriminatory policy. Their burden is high, but it is not insurmountable. Defendants may convince a jury that the differences between the male and female inmate populations (for example, the substantial size difference as well as asserted differences in the nature and frequency of dangerous incidents in each population), justify continuing to process male actual discharges together with the other male court returns, despite the fact that female actual discharges are entitled, pursuant to Gary, to a less intrusive practice. Indeed, CCDOC administrators have testified that the ?simple? solution available in Gary is not feasible here due to logistical constraints that are inseparable from security concerns.

I conclude that the ultimate question is best framed as whether defendants have *960 demonstrated an exceedingly persuasive justification for CCDOC's policy and practice of processing male actual discharges together with the male general court return population, while female actual discharges are segregated and processed separately from the female court return population. This formulation both identifies the challenged policy in terms that affirmatively apply to the plaintiff class (rather than by negative reference to the policy applied to female inmates) and makes clear that defendants bear the burden of demonstrating that the gender-based distinction is warranted under the circumstances of this case. The record contains sharply conflicting expert opinions on this question, and summary judgment is not the place to resolve this battle of the experts.

For the foregoing reasons, the parties' cross-motions for summary judgment on plaintiffs' claim that defendants' policy of strip searching of all male court discharges and not all female court discharges violates the Equal Protection Clause are denied.

Similarly, the analytical framework plaintiffs propose for their claim that plaintiffs are not offered the same level of privacy as similarly situated female court returns must be turned on its head. Plaintiffs state that ?[t]he reason the Sheriff does not provide dividers for men during a strip search is because there was previously a class action lawsuit about the strip searching of women at the Jail and because there are more men than women at the Jail.? FN13 The first portion of this statement is a reference to Wilkes v. Sheahan, 01 C 1592 (N.D.Ill.2001), in which the plaintiffs alleged that the group strip searches to which they were subjected were conducted in abusive, humiliating, and unsanitary conditions that violated their Fourth, Eighth and Fourteenth Amendment rights. Among other particulars, the Wilkes plaintiffs alleged that although they or other women being searched were menstruating, they were required to remove their sanitary napkins and perform the search in a manner that allowed blood to run down their legs onto the floor, in view of other inmates. Based on the complaint, it appears that the gravamen of the Wilkes plaintiffs' Fourteenth Amendment claims was that the manner in which the searches were conducted was particularly humiliating and abusive to them as women because of their particular physiological functions.

FN13. Plaintiffs' Statement of Material Facts (Docket No. 280-2) No. 21.


The Wilkes case was dismissed pursuant to a settlement agreement prior to the issuance of any opinion, so the merits of these claims was not decided. The point, however, is that the gender-based classification underlying the policy on privacy dividers, like the gender-based classification that determines who can remain in the RCDC during outprocessing, was instituted to rectify specific practices that violated (or allegedly violated, in Wilkes ) the rights of female inmates. While neither Wilkes nor Gary is dispositive of whether defendants are justified in maintaining the gender-based distinctions challenged in this case, the factual circumstances and claims in those cases are certainly relevant to the justifications defendants now assert. Defendants continue to bear the burden of demonstrating an exceedingly persuasive justification for the gender-based classification underlying the differential use of privacy dividers. Nevertheless, the question is properly framed not as whether not providing dividers to men furthers an important government interest, but rather whether providing them to women in the *961 first instance did so.FN14

FN14. I assume, for the present discussion, that defendants were not independently obligated under the Fourth Amendment to use privacy dividers for either men or women.


Defendants assert ?the objective of protecting women from embarrassment related to menstruation? in support of their gender-based classification. Plaintiffs do not claim that this objective is unimportant, nor that the use of privacy dividers for women is insufficiently related to its achievement. Instead, plaintiffs attack defendants' justification by claiming that it ?fails to appreciate that strip searches can be equally embarrassing, repulsive and degrading to males.? This may be true (as noted above, this is why men and women are similarly situated), but defendant is entitled to have a jury weigh the evidence and decide whether the added factor of menstruation justifies differential treatment. As noted above, ?a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.? Miss. Univ. for Women, 458 U.S. at 728, 102 S.Ct. 3331. A jury could conclude, based on the evidence, that while group searches without privacy dividers are invasive and uncomfortable to both sexes, they are unreasonably so for women who may be viewed while menstruating, and that this distinction justifies CCDOC's gender-based classification.

For the foregoing reasons, the parties' cross-motions for summary judgment on plaintiffs' claim that defendants' policy of strip searching of all male court discharges in large non-private group settings with up to fifty inmates, while the female court discharges, who opt to return to the housing divisions, are afforded privacy, violates the Equal Protection Clause are denied.

B. Fourth Amendment
On reconsideration, I have also revised my views about the appropriateness of summary judgment on plaintiffs' Fourth Amendment claims. In defendants' favor is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which upheld visual body cavity searches of inmates-including both sentenced prisoners and pretrial detainees-after contact visits, and which emphasized what the Seventh Circuit has called ? the animating theme? of the Supreme Court's recent prison jurisprudence, Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir.1995) (emphasis in original): that prison administrators have broad discretion to adopt and execute the policies they deem necessary to maintain institutional security, and that judges should not interfere with the ?professional expertise of corrections officials.? 441 U.S. at 548, 99 S.Ct. 1861. The Bell court further held that body cavity searches can be conducted on less than probable cause, id. at 560, 99 S.Ct. 1861, and that the existence of less restrictive means of detecting contraband does not necessarily render the searches unreasonable. Id. at 559 n. 40, 99 S.Ct. 1861.

Bell did not, however, approve the use of blanket strip searches in any and all circumstances, but instead reaffirmed the need to conduct a fact-specific inquiry into the reasonableness of the particular search. Prison ?[o]fficials do not have carte blanche to institute any policy they please under the justification of institutional security,? Calvin v. Sheriff of Will County, 405 F.Supp.2d 933, 942 (N.D.Ill.2005) (citation omitted). Bell requires courts to consider ?the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.? 441 U.S. at 559, 99 S.Ct. 1861.

In Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), the Seventh Circuit*962 held that the City's policy of routinely strip searching female misdemeanor offenders, without reasonable suspicion that they were concealing drugs or weapons, violated the Fourth Amendment, The court acknowledged that Bell upheld the strip searches in that case on less than probable cause, but distinguished Bell on factual grounds, including that the Bell plaintiffs, unlike Mary Beth G., ?were awaiting trial on serious federal charges ... and were being searched after contact visits.? 723 F.2d at 1272. The court concluded that these factual differences were ?sufficiently significant to compel our own inquiry as to whether the strip searches conducted by the City were ?reasonable? under the fourth amendment.? Id.

The court then proceeded to analyze the Bell factors, balancing the severe intrusion on the plaintiffs' privacy and dignity against the City's purported justification for the search. Although the City asserted ?the need to maintain the security of the City lockups by preventing misdemeanor offenders from bringing in weapons or contraband,? 723 F.2d at 1272, the court concluded that the City's evidence ?belies its purported concerns.? Id. at 1273. In particular, the court noted that because the plaintiffs-all of whom were detained on traffic or other minor offenses-were not charged with ?the kinds of crimes ... that might give rise to a reasonable belief that the woman arrestee was concealing an item in a body cavity,? and that, in fact, there was no evidence that the strip searches of female misdemeanor offenders had ever turned up contraband, the challenged searches were not justified. Id.

Indeed, although courts of appeals are not unanimous on the question, several circuits have agreed that minor offenders charged with non-violent crimes not ordinarily associated with drugs or weapons cannot be subject to strip searches absent a reasonable suspicion that they are harboring contraband. See, e.g., Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993); but see Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (no reasonable suspicion required). The hitch in this case, of course, is that at the time the searches are carried out on male court returns, CCDOC does not know with what crimes, if any, the inmate is charged, and, in case of the plaintiff class, the answer is-by definition-none. Here, it becomes clear that the reasonableness of plaintiffs' searches cannot be resolved as a matter of law, but depends on the jury's resolution of the same factual dispute discussed in relation to plaintiffs' Fourteenth Amendment violations. If the jury credits the testimony of plaintiffs' experts, several of whom have opined that segregating male possible discharges from the general male court return population in the RCDC would not compromise institutional safety, it may conclude that CCDOC's current procedure is unreasonable. If, however, the jury credits defendants' witnesses, and determines that the Jail officials are within their discretion to execute the current procedure as necessary to institutional security, it could conclude that the searches are reasonable, notwithstanding that some of the inmates searched will ultimately be determined to have had no charges pending at the time of the search.

Mary Beth G. does not preclude the latter of these potential outcomes. Although the court determined in that case that the City of Chicago lacked reasonable suspicion as to female misdemeanor offenders as a class, it did not go so far as to hold that individualized reasonable suspicion as to each detainee was required, and implicitly acknowledged that reasonable suspicion may exist as to other classes of offenders (such as those charged with *963 prostitution, assault, or narcotics violations, 723 F.2d at 1273). Accordingly, if a jury finds that security considerations prevent the segregation of actual discharges before they return to their divisions, it could also conclude that the blanket searches were reasonable, based on reasonable suspicion as to some or all of the remaining court returns.

[6] Headnote Citing References For the foregoing reasons, the parties' cross-motions for summary judgment on plaintiffs' claim that defendants' policy of strip searching of all male court discharges not based upon reasonable suspicion that they are concealing contraband violates the Fourth Amendment is denied.

[7] Headnote Citing References Plaintiffs' claim that the manner in which the strip search is conducted, in large non-private group settings, violates the Fourth Amendment, is also inappropriate for summary judgment. As plaintiffs' formulation of the claim indicates, lack of privacy is their primary complaint. Plaintiffs rely on two cases for the proposition that strip searches must respect individual privacy: Campbell v. Miller, 499 F.3d 711 (7th Cir.2007), and Hill v. Bogans, 735 F.2d 391 (10th Cir.1984). While it is true that in each of these cases, the appeals court held that manner in which the search was conducted unreasonably invaded the arrestee's privacy, neither case supports judgment of plaintiffs' claim as a matter of law. Setting aside the fact that the plaintiff in Campbell was searched incident to his arrest, and not while he was in jail (the court noted that this distinction was relevant), Campbell addressed a visual body cavity search conducted in the arrestee's friend's backyard, in plain view of onlookers. In Hill, an arrestee was taken to a ?lobby area? of the jail, in which ten or twelve people, none of whom was involved in the search, were milling about, then forced to face the wall and drop his pants and undershorts for a visual inspection of his buttocks. One element that immediately distinguishes both Campbell and Hill is that the viewing public in those cases was not limited, as it is in this case, to other inmates also being searched, but included passers-by ( Campbell ) or anyone who happened to be in the jail's ?lobby area? ( Hill ).

Defendants, for their part, cite to Thompson v. Souza, 111 F.3d 694 (9th Cir.1997), and Elliott v. Lynn, 38 F.3d 188 (5th Cir.1994), for the proposition that strip searches conducted in front of other inmates are permissible under the Fourth Amendment, and Farmer v. Perrill, 288 F.3d 1254 (10th Cir.2002), for the proposition that whether legitimate penological objectives justify a strip search in an open area in view of other inmates is a fact-sensitive issue. In response to the Farmer defendants' argument that the lower court's denial of summary judgment erroneously placed the burden on the defendants to justify their policy (the same argument defendants raise here), the court upheld the denial, stating, ?Defendants proffered evidence of their justification, the plaintiff disputed that evidence, and the district judge found that the matter could not be resolved at the summary judgment stage. That is all.? 288 F.3d at 1261.

The situation in this case is similar. As defendants' cases demonstrate, the Constitution clearly does not require strip searches to be conducted in a manner that allows only the prison officials conducting the search to view the inmate. Plaintiffs do not claim that a strip search conducted in a manner that allows the inmates being searched to view each other is per se unreasonable. Plaintiffs make much of the fact that in 2007, during the pendency of this lawsuit, defendants instituted the use of privacy screens for male group strip searches, and argue that this demonstrates *964 defendants had no justification for not using them earlier. But this argument misses the point. As discussed above, prison officials are not required to choose the least restrictive means of achieving their objective of maintaining order and safety within the institution. Moreover, granting summary judgment based on CCDOC's later use of privacy screens raises a significant public policy concern. As the Eighth Circuit noted in Klinger v. Department of Corrections,

[P]rison officials would be far less willing to experiment and innovate at an individual institution knowing that a federal court could impose liability on the basis of a program comparison. Indeed, inmates would suffer because officials would likely provide each institution with the bare constitutional minimum of programs and services to avoid the threat of equal protection liability.

31 F.3d 727, 733 (8th Cir.1994). Similarly here, if each time CCDOC improved upon the conditions for conducting inmate searches, a court could impose liability based on CCDOC's pre-improvement procedures, CCDOC would have a perverse incentive not to seek improvements, and to conduct searches in a manner that minimally meets constitutional standards, even where improvements are feasible. Of course, the jury may consider evidence of these improvements in weighing the parties' respective positions; but it does not entitle plaintiffs to prevail as a matter of law.

For the foregoing reasons, the parties' cross-motions for summary judgment on plaintiffs' claim that the manner in which the strip search is conducted, in large non-private group settings, violates the Fourth Amendment are denied.

[8] Headnote Citing References As to plaintiffs' Fourth Amendment claim based on unreasonable delay, although defendants' Rule 54(b) motion for reconsideration seeks to vacate the entirety of the July 30 Order, defendants do not argue any basis for revisiting my disposition of this claim. Motions for reconsideration-regardless of whether brought under Rule 54(b) or Rule 59(e)-serve a limited function, and are appropriate only to correct manifest errors of law or fact or to present newly discovered evidence. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984) (citation and footnote omitted)), amended by, 835 F.2d 710 (7th Cir.1987). As defendants have not asserted that any of these grounds applies to my denial of summary judgment in their favor on plaintiffs' unreasonable delay claim, I decline to reconsider that denial. In any event, I am convinced that pursuant to Chortek v. City of Milwaukee, 356 F.3d 740, 747 (7th Cir.2004) (?[T]he reasonableness of a length of detention typically ?is a question best left open for juries to answer based on the facts presented in each case? ?), summary judgment of this claim is inappropriate in this case.

C. Eleventh Amendment Immunity
Defendants' motion for reconsideration also asserts that I erred in declining to grant summary judgment for defendants on the basis of Eleventh Amendment immunity. They have not persuaded me, however, that my denial of summary judgment on this ground rested on a manifest error of law or fact. Defendants concede that Sheriffs generally act as county, rather than state officials. That an Illinois Sheriff may act as an arm of the State does not compel the conclusion that this exception-rather than the general rule-applies here. Accordingly, defendants' motion to reconsider the portion of the *965 July 30 Order denying summary judgment on the basis of Eleventh Amendment immunity is denied.FN15

FN15. As the substance of my analysis and the authorities I cited made clear, at issue was whether defendants are immune from suit under the Eleventh Amendment. References in the July 30 Order to ?qualified? immunity should be amended accordingly.


III.
For the foregoing reasons, defendants' Rule 54(b) motion for reconsideration is granted as to the portions of the July 30 Order that granted summary judgment to plaintiffs on their Fourteenth Amendment claims and on certain of their Fourth Amendment claims. Those portions of the July 30 Order are vacated, and I now deny both parties' motions for summary judgment on those claims.

Defendants' Rule 54(b) motion is denied as to the portions of the July 30 Order denying defendant's motion for summary judgment of plaintiffs' Fourth Amendment claim of unreasonable delay and denying defendant's motion for summary judgment based on Eleventh Amendment immunity.

United States District Court,
N.D. Illinois,
Eastern Division.
Charles STREETER, Keith Bryant, and Artis Jackson, individually and on behalf of all other similarly situated, Plaintiffs,
v.
SHERIFF OF COOK COUNTY, and Cook County, Illinois, Defendants.

No. 08 C 732.
Sept. 15, 2008.

*914 Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, Thomas Gerard Morrissey, Thomas G. Morrissey, Chicago, IL, for Plaintiff.

Daniel Francis Gallagher, Dominick L. Lanzito, Kevin Mark Casey, Lawrence S. Kowalczyk, Paul A. Ogrady, Terrence Franklin Guolee, Querrey & Harrow, Ltd., Francis J. Catania, Cook County State's Attorney, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, District Judge.

Charles Streeter, Keith Bryant and Artis Jackson (?Plaintiffs?) filed this putative class action under 42 U.S.C. § 1983 against the Sheriff of Cook County (?Sheriff?) and Cook County, Illinois (?the County?) (collectively ?Defendants?), challenging a strip search policy at the Cook County Jail (?the Jail?) that allegedly violated their Fourth and Fourteenth Amendment rights. (R. 22, Am. Compl.) Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 26, Defs.' Mot. to Dismiss.) For the reasons stated below, Defendants' motion is denied.

RELEVANT FACTS & PROCEDURAL HISTORY
Plaintiffs are current or former pretrial detainees housed in Division 5 of the Jail. (R. 22, Am. Compl. ¶¶ 1-2.) They allege that between February 3, 2006, and December 20, 2007, they and other male inmates housed in Division 5 were subjected to unreasonable group strip searches when returning to the Division after court proceedings. ( Id. ¶¶ 2, 6(b), 17.) Plaintiffs allege that the Sheriff used the clothing room in Division 5 to conduct strip searches of upwards of 45 male inmates at a time. ( Id. ¶ 4.) Upon entering the room, the men were ordered to line up against the wall and remove all their clothing. ( Id.) They were then ordered to extend their arms and legs apart and to squat three or four times. ( Id.) They were forced to remain naked in each other's presence for an extended period of time ?and the room smelled foul from body odor.? ( Id.) Plaintiffs allege that Defendants*915 stopped conducting strip searches in this manner as of December 20, 2007, and now conduct the strip searches using individual partitions. ( Id. ¶ 2.)

In Count I, Plaintiffs allege that these group strip searches violated their rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment, because ?the Sheriff subjected the Plaintiffs and members of the class to unreasonable body searches which were demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.? ( Id. ¶ 26.) In Count II, Plaintiffs allege that by instituting and continuing the group strip and cavity search procedures for male inmates in Division 5 but using private strip searches for female inmates, the Sheriff violated their rights under the Equal Protection Clause of the Fourteenth Amendment. ( Id. ¶¶ 27-31.)

Defendants move to dismiss Plaintiffs' complaint.FN1 (R. 26, Defs.' Mot. to Dismiss.) Defendants argue that the Plaintiffs ?have alleged no facts showing the basis for relief,? and that they are ?detainees held on serious felony charges who can be constitutionally strip searched upon return from Court.? ( Id. at 3, 8.) Defendants also argue that Plaintiffs have ?an adequate remedy at law? available to them in Young v. County of Cook, et. al, No. 06-552 (N.D. Ill. filed Jan. 30, 2006) (? Young ?), a case pending before Judge Kennelly that also involves strip searches at the Jail. ( Id. at 4-5.)

FN1. Although Defendants move to dismiss the entire complaint, they do not specifically address Plaintiffs' equal protection claims. ( See R. 26, Defs.' Mot. to Dismiss.)


LEGAL STANDARD
In determining whether to grant a motion to dismiss under Rule 12(b)(6), the Court accepts all well-pleaded allegations in the complaint as true, and draws all reasonable inferences in the light most favorable to the plaintiff. Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir.2007). To properly state a claim, the complaint must provide ?a short and plain statement of the claim showing that the pleader is entitled to relief.? Fed.R.Civ.P. 8(a)(2). ?Specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.? Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). However, ?a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.? Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Rather, ?[f]actual allegations must be enough to raise a right to relief above the speculative level.? Id. at 1965.

ANALYSIS
[1] Headnote Citing References Plaintiffs bring both Fourth and Fourteenth Amendment claims challenging the propriety of the strip searches. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend IV. To determine the reasonableness of a search under the Fourth Amendment, a court must balance the degree of the intrusion on the individual's privacy interest against the government's need for the search. Michael C. v. Gresbach, 526 F.3d 1008, 1014 (7th Cir.2008). However, whether pretrial detainees like Plaintiffs have Fourth Amendment privacy rights is an unsettled question. In Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that body cavity searches of pretrial detainees returning from contact visits did not violate the Fourth Amendment. Id. The Court further stated in *916 dicta, ?It may well be argued that a person confined in a detention facility has no reasonable expectation of privacy....? Id. at 556, 99 S.Ct. 1861. Five years later, in Hudson v. Palmer, 468 U.S. 517, 526-30, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court held that a prisoner has no reasonable expectation of privacy in his cell entitling him to Fourth Amendment protections.

The Seventh Circuit's interpretation of Hudson has been mixed. In an early case, the Seventh Circuit interpreted Hudson's abrogation of Fourth Amendment protections as applying only to prisoners' cells, and not to prisoners themselves. Canedy v. Boardman, 16 F.3d 183 (7th Cir.1994). Thereafter, the majority opinion in Johnson v. Phelan, 69 F.3d 144 (7th Cir.1995), read Hudson to leave inmates without any protections under the Fourth Amendment.FN2 A subsequent Seventh Circuit opinion appeared to call Johnson's broad interpretation of Hudson into doubt. See Peckham v. Wisc. Dept. of Corrs., 141 F.3d 694, 697 (7th Cir.1998) (?So, does a prison inmate enjoy any protection at all under the Fourth Amendment against unreasonable searches and seizures? Although we acknowledge the tension between Johnson and Canedy, we think the answer is ?yes' ....?); but see Peckham, 141 F.3d at 698 (Easterbrook, J., concurring) (?Rights of seclusion and secrecy vanish at the jailhouse door.?).

FN2. The majority in Johnson also presumed that Hudson applied to pretrial detainees as well as prisoners, but in his separate opinion Judge Posner called the matter an ?unsettled question.? Johnson, 69 F.3d at 152 (Posner, J., concurring in part and dissenting in part). A subsequent case recognized that ?[a]lthough some cases prefer to say that the rights of pretrial detainees are ?at least? as great as those of convicts ... the standards applicable to complaints by convicts and by pretrial detainees about unsafe conditions of confinement merge.? Hart v. Sheahan, 396 F.3d 887, 892-93 (7th Cir.2005).


As this Court reads the case law, the Seventh Circuit has left open the possibility that pretrial detainees could assert a Fourth Amendment claim stemming from an unreasonable strip search. The Court is cognizant that detainees' privacy rights are limited: ?[G]iven the considerable deference prison officials enjoy to run their institutions it is difficult to conjure up too many real-life scenarios where prison strip searches of inmates could be said to be unreasonable under the Fourth Amendment.? Peckham, 141 F.3d at 697. Nevertheless, because of the need to look outside the complaint to assess the justifications for the defendant's conduct, District Courts within this Circuit have declined to dismiss Fourth Amendment claims challenging strip searches at the pleading stage. See, e.g., Lara v. Sheahan, No. 06-669, 2007 WL 1030304, at *3 (N.D.Ill. Mar.30, 2007) (denying motion to dismiss claim challenging strip search because ?[w]hether or not legitimate penological concerns exist for these strip searches is a matter better addressed in a motion for summary judgment.?); Young v. County of Cook, No. 06-552, 2006 WL 4500062, at *5 (N.D.Ill. Aug 25, 2006) (?[W]ithout the benefit of evidence concerning the Sheriff's need to conduct strip searches in the manner performed, the Court cannot determine whether the search performed on [plaintiff] was conducted in a reasonable fashion.?); Aney v. Gilberg, No. 02-131, 2002 WL 32340878, at *5 (W.D.Wis. Apr.22, 2002) (?It may be that respondents are able to justify why they initiated the strip search, the manner in which it was conducted and why they conducted it in the middle of the hallway. However, from the allegations in [plaintiff's] complaint, I cannot determine whether the strip search was reasonable.?).

[2] Headnote Citing References Here, Plaintiffs' complaint is not a model of legal draftsmanship, but it can be *917 read to allege that the group strip searches were conducted by Defendants in an unreasonably intrusive manner and went on longer than penologically necessary. (R. 22, Am. Compl. ¶¶ 4, 20, 26.) Taking these allegations as true, and without being able to assess Defendants' justifications for conducting the searches in this manner, the Court cannot conclude at this stage that the searches were reasonable. Accordingly, the Court declines to dismiss Plaintiffs' Fourth Amendment claims.

[3] Headnote Citing References[4] Headnote Citing References Plaintiffs also challenge the strip searches under the Due Process Clause of the Fourteenth Amendment. (R. 22, Am.Compl. ¶¶ 23-26.) Unlike the uncertainty surrounding the Fourth Amendment, there is no question that strip searches can violate the Eighth Amendment's ban on cruel and unusual punishment. See Peckham, 141 F.3d at 697; Johnson, 69 F.3d at 146-47. In the context of pretrial detainees, the applicable standard is the Due Process Clause of the Fourteenth Amendment. Bell, 441 U.S. at 535, 99 S.Ct. 1861; see also Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir.2006) ( ?[T]he protections of the Fourth Amendment apply at arrest and through the Gerstein probable cause hearing, due process principles govern a pretrial detainee's conditions of confinement after the judicial determination of probable cause, and the Eighth Amendment applies following conviction.?). The analysis under the Due Process Clause is essentially the same as the Eighth Amendment inquiry. See Hart v. Sheahan, 396 F.3d 887, 892-93 (7th Cir.2005) (?[W]hen the issue is whether brutal treatment should be assimilated to punishment, the interests of the prisoner is the same whether he is a convict or a pretrial detainee. In either case he (in this case she) has an interest in being free from gratuitously severe restraints and hazards, while the detention facility has an interest in protecting the safety of inmates and guards and preventing escapes.?). Under the Due Process Clause, ?if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ?punishment.? ? Bell, 441 U.S. at 539, 99 S.Ct. 1861. ?Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees.? Id.

[5] Headnote Citing References[6] Headnote Citing References As the Seventh Circuit has observed, ?There is no question that strip searches may be unpleasant, humiliating, and embarrassing to prisoners, but not every psychological discomfort a prisoner endures amounts to a constitutional violation.? Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.2003). Instead, the Constitution prohibits only the unnecessary and wanton infliction of pain, and thus forbids punishment that is ?so totally without penological justification that it results in the gratuitous infliction of suffering.? Calhoun, 319 F.3d at 939 (citation omitted). Only those strip searches that are ?maliciously motivated, unrelated to institutional security, and hence totally without penological justification are considered unconstitutional.? Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir.2004). Accordingly, to state a due process claim, the plaintiff must allege that the strip search was ?conducted in a harassing manner intended to humiliate and inflict psychological pain.? Calhoun, 319 F.3d at 939.

[7] Headnote Citing References Here, the complaint can be read to allege that the group strip searches were conducted in a manner intended to humiliate and embarrass detainees, and that the searches went on longer than necessary. (R. 22, Am. Compl. ¶¶ 4, 20, 26.) Taking *918 these allegations as true, such conduct could establish a due process violation. It may be that jail officials can articulate valid reasons why the searches were conducted in this manner, so as to ultimately defeat Plaintiffs' claims. At this stage, however, the Court cannot consider evidence outside the complaint to assess the jail officials' reasons for acting as they did. See Hart, 396 F.3d at 892-93 (reversing dismissal of complaint brought by pretrial detainees because jail officials' reasons for taking particular action could not be assessed at pleading stage). For these reasons, the Court rejects Defendants' argument that Plaintiffs have failed to state a claim under the Due Process Clause.FN3

FN3. The Court finds unavailing Defendants' citation to several unpublished, out-of-district cases interpreting the law of the Sixth and Ninth Circuits, since this Court is governed by the case law of the Seventh Circuit. ( See R. 26, Defs.' Mot. to Dismiss at 6-7; R. 32, Defs.' Reply at 3-4.) The Court notes additionally that one of the cases cited by Defendants was decided at the summary judgment stage, and another case did not decide the constitutionality of strip searches at all, but instead involved the court's award of attorneys fees to a class of prisoners who settled their claims challenging the legality of strip searches. See Adams v. County of Sacramento, No. 05-2204, 2007 WL 708869 (E.D.Cal. Mar.6, 2007); Craft v. County of San Bernardino, No. 05-359, 2008 WL 916965 (C.D.Cal. Apr.1, 2008).


Defendants also contend that this case should be dismissed because Plaintiffs have an adequate remedy available in Young. ( See R. 26, Defs.' Mot. to Dismiss at 4-5.) In Young, a class of pretrial detainees is challenging the legality of strip searches they were subjected to upon their initial intake at the Jail; in this case, by contrast, Plaintiffs are challenging strip searches they were subjected to upon their return to the Jail after court proceedings. ( See Young, No. 06cv552 (N.D. Ill. filed Jan. 30, 2006).) Judge Kennelly denied Defendants' motion to join this case with Young, in part because he determined that different penological considerations would likely be at issue in assessing the reasonableness of the searches, given the different time frames and circumstances under which they occurred. ( Young v. County of Cook, et al., No 06cv552, Tr. of Proceed., May 22, 2008, at 6-7.) This Court agrees with Judge Kennelly's assessment that the claims raised in Young are different than those raised here, and finds no basis to conclude that Plaintiffs could obtain relief for the constitutional violations they allege in the context of Young. Accordingly, the Court rejects Defendants' argument.

CONCLUSION
For all these reasons, Defendants' motion to dismiss (R. 26) is denied. The parties are directed to reevaluate their settlement positions in light of this opinion and to exhaust all efforts to settle this case. The parties shall appear for a status hearing on October 1, 2008, at 9:45 a.m. to set a firm litigation schedule for this case.

United States District Court,
N.D. Illinois,
Eastern Division.
Quentin BULLOCK, and Jack Reid, individually and on behalf of a class, Plaintiffs,
v.
Michael SHEAHAN, Sheriff of Cook County, in his official capacity, and Cook County, Defendants.

No. 04 C 1051.
July 30, 2008.

*968 Thomas Gerard Morrissey, Chicago, IL, Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, for Plaintiffs.

Bernard E.J. Quinn, E. Michael Kelly, Frank Joseph Marsico, Hinshaw & Culbertson, Patrick T. Driscoll, Jr., *969 Patrick Malone Blanchard, Cook County State's Attorney, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, District Judge.

Plaintiffs Quentin Bullock and Jack Reid, individually and on behalf of a class (collectively ?plaintiffs?) have brought this suit challenging the constitutionality of defendants Michael Sheahan and Cook County's (collectively ?defendants?) policy and/or practice under which male inmates, in the custody of the Cook County Department of Corrections (?CCDC?), were subjected to strip searches upon returning to the CCDC for out-processing after being ordered released. The parties have filed cross motions for summary judgment. For the following reasons, plaintiffs' motion is granted in part and defendants' motion is denied.

I.
Plaintiffs' amended complaint alleges violations of the Fourth and Fourteenth Amendments of the U.S. Constitution based on the defendants' policy and/or practice under which male inmates were subjected to strip searches upon returning to the CCDC for out-processing after being ordered released. Specifically, at the time they were strip searched, plaintiffs Bullock and Reid had been ordered released after being found not guilty of the charges against them.

The following facts are not in dispute. All CCDC inmates, including those ordered discharged in court, are required to return to the jail before being released. All inmates returning to the jail after their court appearances (hereinafter ?returns?) are placed in holding cells located within the Receiving, Classification and Diagnosis Center (?RCDC?) of the jail prior to being brought back to their respective housing divisions within the jail. The CCDC has several housing divisions which house different groups or classifications of inmates ( i.e. maximum, medium, minimum security). Each of these divisions has its own separate building on the jail grounds. There are two housing divisions for women. The RCDC is located in the basement of Division Five and is the nerve center of the jail for inmate transport, as all inmates who enter or exit the jail are processed at some point in the RCDC, as well as inmates who are transferred between housing divisions. The inmates are placed in bullpens within the RCDC. Aside from the smaller bullpens A, B, C, and D, the male intake area of the RCDC has six additional larger bullpens, numbered 1-6. Some of the larger numbered bullpens can house 150 to 200 inmates.

After their court appearance, every inmate is given a court order called a mittimus. A mittimus indicates the disposition of an inmate's criminal case to the Department of Corrections. This document indicates if the inmate is a ?possible discharge.? Among the returns, the jail identifies any mittimus which indicates a possible discharge and that document is taken to the Records Department. Any inmate ordered discharged remains in custody until the Sheriff determines that there are no other cases or holds which would prevent the inmate from being released. The jail staff checks CIMIS, the jail's computerized record keeping system, in order to determine whether a court discharge has other cases which would require continued detention. In the meantime, the returns are placed in the bullpens within the RCDC.

As of March 2008, the jail housed 9,165 inmates. Of these, 8,436 were male and 729 were female. Approximately 800 to 1,200 inmates go to court on any given weekday. The inmates are transported by bus to different courts. The ratio of male *970 to female inmates is greater than 9 to 1. The same 9 to 1 male to female ratio applies to inmates going to court on a given day. There can be as many as 5 to 6 times more men than women discharged from the jail on any particular day and on average during the year. Approximately 120 female inmates go to court on a daily basis and approximately 30 to 40 female inmates are court discharges. The male returns arrive at the jail throughout the day, commencing approximately at 10:30 or 11 a.m. until as late as 7 or 8 p.m. The return of male discharges is staggered over the period of 8 or 9 hours.

As a matter of practice and policy, male and female returns are strip searched only upon their return to their respective housing divisions within the jail, not the RCDC. Inmates are returned to the housing divisions when the transportation officers from the inmates' respective housing divisions come to pick them up from the RCDC. This can occur approximately every 30 to 90 minutes or up to two hours depending on the division. The procedure by which male returns are strip searched consist of the following: (1) the inmates are lined up at arm's length from each other; (2) the inmates are instructed to remove all their clothing; (3) the inmates are then instructed to extend their arms and legs apart; (4) the inmates are then ordered to squat three or four times and cough while squatting. The number of inmates being searched at once varies; there is testimony that as many as 50 to 80 male inmates have been searched together.

The policy and practice of strip searching male returns differs from that for female returns. It is the policy and practice of the Sheriff not to give male returns who are to be discharged an option to avoid being strip searched. In contrast, the jail has a specific procedure in place for female returns who are to be discharged which affords them the option of not being strip searched. Under this procedure, once it is determined that a female return is a possible discharge by the RCDC staff, she is segregated from the general return population by being placed in a separate bullpen within the RCDC. The female return remains in the separate bullpen until a computer and records check is completed to determine whether the inmate is in fact a discharge. Any detainees who are determined not to be discharges are removed from the discharge bullpen and placed in the general population return bullpen. If a female detainee is determined to be a discharge and elects not to return to her housing division, then the Records Department notifies the appropriate housing division that their clothes be brought to the RCDC. Within the month of October 2003, the average time for female inmates to be discharged was within two hours after returning from court. The average longest discharge time was 2:42 and the average shortest time was 1:10 for that time period.

When female discharges are strip searched they are placed in a location with privacy dividers among the inmates. These dividers or privacy screens do not allow inmates to see each other during the strip search. During the time that the class members were strip searched, the CCDC did not use dividers to afford any privacy to the male discharges. In February 2007, the Sheriff installed privacy screens similar to those used to search female inmates for searching new inmates (or ?arrestees?) arriving to the jail. Up to 37 new male inmates can be strip searched at a time with the privacy screens, and approximately 200 to 350 new male inmates are processed into the jail on a daily basis. Also since 2007, defendants have been using privacy screens when the putative class members were returned to their housing divisions and strip searched. Defendants contend this is a ?pilot program,? *971 but it is implemented for all court returns and inmates housed in all divisions.

II.
Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir.2007); Fed.R.Civ.P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.
The class certified in this case on June 17, 2005 is defined as follows:

All male inmates who, on or after February 12, 2002, have been subjected to defendants' policy and practice of strip searching a male inmate upon his return to the jail following a court appearance at which court appearance a specific case or charge against the inmate was dismissed when no other cases, charges, warrants or holds were pending against that inmate which warranted that inmate's continued detention at the jail.

(Order dated 6/17/05, Doc. Entry # 72.) Plaintiffs' motion seeks summary judgment on the following claims:

1. The strip searching of all male court discharges and not all female court discharges violates the Equal Protection Clause.

2. The strip searching of all male court discharges in large non-private group settings with up to fifty inmates while the female court discharges, who opt to return to the housing divisions, are afforded privacy violates the Equal Protection Clause.

3. The strip searching of all male court discharges not based upon reasonable suspicion that they are concealing contraband violates the Fourth Amendment.

4. Assuming arguendo, the Defendants are entitled to strip search all male court discharges, the manner in which the strip search is conducted, in large non-private group settings violates the Fourth Amendment.

5. There was an unreasonable delay in releasing plaintiffs.

Defendants oppose the motion for summary judgment and have filed their own motion for summary judgment on these claims.

A. Equal Protection Claim
[1] Headnote Citing References In order to make out a prima facie case under the Equal Protection clause of the Fourteenth Amendment, plaintiffs must show that (1) they are ?similarly situated? to female inmates with judicial discharges, (2) they were treated differently than such female inmates, and (3) defendants acted with discriminatory intent. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir.2000). Defendants argue plaintiffs cannot establish the first and third requirements. I disagree and find plaintiffs have made a prima facie case under the Equal Protection clause.

With respect to the first requirement, defendants argue class members are not similarly situated to female discharges due to their disparity in numbers (roughly five to six times more male potential discharges); propensity for violence; and, on average, lengthier criminal histories, which increase the amount of time needed to make a final determination before final discharge. Defendants also note that men do not have menstrual cycles. According to defendants this is significant because this bodily function is the reason given for *972 providing privacy screens to female discharges. Defendants also rely on Timm v. Gunter, 917 F.2d 1093 (8th Cir.1990), in support of their argument. There, the Eighth Circuit found that inmates at two separate and distinct prisons were not similarly situated due to differences in security concerns ?reflecting differences in the number and age of the inmates, the kinds of crimes committed by them, the length of sentences, and the frequency of incidents involving violence, escapes, or contraband.? Id. at 1103.

[2] Headnote Citing References[3] Headnote Citing References Male discharges are similarly situated to female discharges for purposes of the Equal Protection clause if they are ?comparable ... in all material respects.? Crawford v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir.2006) (emphasis in original). This requirement is intended to ?eliminate confounding variables? and help ?isolate the critical independent variable.? Id. At the outset, the case relied on primarily by defendants is distinguishable. Timm involved two groups of inmates in two distinct facilities, the Nebraska State Penitentiary-an all-male maximum security prison designed to house prisoners classified as requiring medium or maximum security-and the Nebraska Center for Women. The present case involves two groups of inmates within the same facility. The additional reasons set forth by defendants for distinguishing between male and female discharges at the CCDC also fail to establish that these groups are not similarly situated. Although defendants are correct that the male inmates outnumber the female inmates, there are varying security classifications within each group which correspond to each other ( i.e. there are both female and male inmates who are classified as ?maximum security?).FN1 The statistics concerning inmate violence clearly indicate this takes place among female inmates as well as male inmates. Moreover, defendants specifically argue that ?low security detainees could be enlisted to help obtain contraband or weapons by fellow inmates,? and provide no reason why this does not apply equally to female discharges. Indeed, female discharges are subject to strip searches for security reasons upon returning to the housing facilities. Finally, underscoring the weakness of this argument is the fact that defendants' primary justification for distinguishing between male and female discharges is their alleged inability to hold them in the RCDC while their records are reviewed-a logistical rather than a security concern. Accordingly, I find the plaintiffs are similarly situated to the female potential discharges.

FN1. There is also overlap in staff. Division 3 (for women) and Division 8 (for men) share the same superintendent and supervisory staff.


[4] Headnote Citing References[5] Headnote Citing References Next, defendants argue plaintiffs cannot establish discriminatory intent. Discriminatory purpose ?implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on an identifiable group.? David K. v. Lane, 839 F.2d 1265, 1271-72 (7th Cir.1988) (emphasis in original). ?[I]ntentional disregard of plaintiffs' rights in adopting certain policies [can be] tantamount to intentional discriminatory behavior.? Williams v. Lane, 851 F.2d 867, 881 (7th Cir.1988).

[6] Headnote Citing References Defendants argue they have no animus toward male discharges, that their motivation is simply to preclude weapons and contraband from being smuggled into the jail. As already set forth and admitted by defendants, however, female discharges are also capable of smuggling contraband into the jail. This salient fact fatally undermines defendants' argument. Accordingly, I find plaintiffs have made a sufficient showing of discriminatory intent.

*973 Since plaintiffs have made a prima facie case under the Equal Protection clause, the issue becomes what level of scrutiny is applicable. Defendants argue that I should apply a rational basis test under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Turner held that ?when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.? Id. at 89, 107 S.Ct. 2254.

[7] Headnote Citing References[8] Headnote Citing References Turner does not foreclose all heightened judicial review, however. See, e.g., Johnson v. California, 543 U.S. 499, 510, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) (?reasonable-relationship test [applies] only to rights that are ?inconsistent with proper incarceration.? ?)) (emphasis in original); Hammer v. Ashcroft, 512 F.3d 961, 968 (7th Cir.2008) (?Post- Turner, the Supreme Court applies strict scrutiny [ ] to prison regulations involving suspect classifications such as race.?) (citation omitted); Pitts v. Thornburgh, 866 F.2d 1450, 1454-55 (D.C.Cir.1989) (applying heightened scrutiny to Equal Protection claim based on gender discrimination); Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116, at *7, 9 (N.D.Ill. Aug. 20, 1998) (Coar, J.) (same). Indeed, gender is a ?quasi-suspect? class and subject to heightened scrutiny. Pitts, 866 F.2d at 1454-55; Ashann-Ra v. Com. of Virginia, 112 F.Supp.2d 559, 570-71 (W.D.Va.2000); Thompson v. Sheahan, No. 00 C 3772, 2001 WL 204774, at *3 (N.D.Ill. Mar. 1, 2001); Gary, 1998 WL 547116, at *7, 9. Thus, when analyzing gender-based discrimination in the prison context, courts ask whether such policies are substantially related to important governmental objectives. Id.; see also Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273-74 (7th Cir.1983).

[9] Headnote Citing References ?[A] party seeking to uphold a policy that expressly discriminates on the basis of gender must carry the burden of showing an ?exceedingly persuasive justification? for the differing treatment.? Id. at 1273 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)). The classification must (1) serve important governmental objectives and (2) be substantially related to the achievement of those objectives. Id. at 1273-74 (quotation omitted).

Defendants set forth prison safety and security as their important governmental objectives. This does not appear to be disputed. The issue is whether defendants' policy and practice discriminating between male and female inmates is substantially related to the achievement of those objectives.

[10] Headnote Citing References[11] Headnote Citing References The blanket strip search policy of all male potential discharges is not substantially related to the achievement of prison safety and security as articulated by defendants. As exemplified by the policy concerning female discharges, if the jail took appropriate steps to identify and segregate potential discharges upon their return to the jail, the security concerns would be addressed. There can be no dispute that female returns are just as capable of importing contraband into the jail as their male counterparts. For defendants to argue otherwise would suggest the need to strip search female inmates is obliterated because, according to defendants, the chance they will engage in violence is statistically insignificant.FN2 The fact that there is a greater number of male *974 inmates does not legitimize the constitutional violation. See Mississippi Univ. for Women, 458 U.S. at 725-26, 102 S.Ct. 3331 (?The purpose of requiring [a substantial relationship between the objective and the means] is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.?); see also Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 751 (7th Cir.2006) (citations omitted) (inquiry used to determine if two employees are similarly situated does not include the ratio of protected class members to particular workforce). Defendants' logistical explanations for their discriminatory policy have been previously rejected in similar circumstances when assessing their constitutionality under the Equal Protection clause. See, e.g., Gary, 1998 WL 547116, at *2, 9. Accordingly, I find no issue of material fact remains on the question of whether defendants' blanket strip search policy of male discharges deprived plaintiffs of their constitutional right to Equal Protection. Plaintiffs' motion for summary judgment is granted.

FN2. Defendants' reliance on the statistical data concerning specific incidents in jail among the male and female inmate populations is faulty. According to defendants, there is a greater number of male inmates and a greater number of incidents within the male inmate population, therefore male inmates are more dangerous. This reasoning is faulty precisely because it fails to control for population size. For example, defendants set forth that 76% of all reported fights involve male inmates. This means female inmates are responsible for almost a quarter of fights and yet make up less than 10% of the inmate population (specifically 729 in 2008). Therefore, based on defendants' statistics, individual female inmates are more likely to be involved in fights than male inmates.


[12] Headnote Citing References Plaintiffs also argue defendants' policy exempting male inmates from obtaining privacy screens violates the Equal Protection clause. With regard to this claim, defendants have first failed to establish there is an important government objective served by failing to afford male inmates privacy screens during strip searches prior to 2007. Indeed, jail staff admits there is no deterrence reason for conducting the searches this particular way, nor do defendants contend that the searches are any less effective in detecting contraband when conducted in a location with privacy screens (as is presently done). For the same reasons, defendants have also failed to establish that searching the discharges in this manner is substantially related to achieving an important government objective. Plaintiffs' motion for summary judgment is granted.

B. Fourth Amendment
[13] Headnote Citing References[14] Headnote Citing References The Supreme Court's landmark decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) governs Fourth Amendment unreasonable search analysis in the prison context. The plaintiffs in Bell challenged the defendants' practice of strip searching all inmates following contact visits. The Supreme Court held:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. 1861. ?The more intrusive the search, the closer governmental authorities must come to demonstrating probable cause for believing that the search will uncover the objects for which the search is being conducted.? Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (citing Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).FN3

FN3. Defendants argue plaintiffs do not have an expectation of privacy in light of their status as inmates. This argument is overinclusive as it overlooks plaintiffs' status as discharges and is inconsistent with the law of this Circuit. See Peckham v. Wisconsin Dep't of Corrections, 141 F.3d 694, 697 (7th Cir.1998) (?[D]oes a prison inmate enjoy any protection at all under the Fourth Amendment against unreasonable searches and seizures? ... the answer is ?yes' ?); Mary Beth G., 723 F.2d at 1268-73 (finding searches violated inmates Fourth Amendment rights); see also Powell v. Barrett, 496 F.3d 1288, 1314 (11th Cir.2007) (?[A]t a minimum, reasonable suspicion must exist to justify strip searches of persons entitled to release from the Jail who are to placed in the general jail population while their records are checked for other detention orders, warrants, or holds.?).


*975 [15] Headnote Citing References[16] Headnote Citing References The scope of the intrusion here is severe. A strip search is ?inherently invasive.? Calvin v. Sheriff of Will County, 405 F.Supp.2d 933, 938-39 (N.D.Ill.2005). The Seventh Circuit has reaffirmed that ?strip searching involving the visual inspection of the anal area are ?demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, [and] signify [ ] degradation and submission.? ? Campbell v. Miller, 499 F.3d 711, 718 (7th Cir.2007) (quoting Mary Beth G., 723 F.2d at 1272) (alterations in original) (although police had probable cause to conduct a strip and body cavity search of the plaintiff, the manner in which it was conducted was unreasonable); see also Calvin, 405 F.Supp.2d at 938-39. When these searches are conducted in public, the intrusion is considered even more severe. See, e.g., Campbell, 499 F.3d at 718-19 (collecting cases). Moreover, plaintiffs-as individuals for whom there is no longer any basis for detention-clearly have a privacy interest which is arguably greater than that of pretrial detainees. See, e.g., Gary, 1998 WL 547116, at *13.

[17] Headnote Citing References The evidence of the manner and location of these searches consists of affidavits by certain class members, attesting they were searched in a large group setting in a ?public hallway.? In turn, defendants provide incomplete transcripts of depositions of jail staff which provide the staff's impressions that the searches are conducted professionally while attempting to safeguard plaintiffs' privacy. The ?hallway? is an ?underground tunnel,? according to defendants, which connects different housing divisions. Defendants do concede that the searches are conducted in this hallway or tunnel that is used by general staff, but that at the time of the searches the general staff is not allowed to pass until the searches are completed. There is no dispute that these searches are conducted in large group settings and that inmates are placed at approximately arm's length apart when searched.

Defendants' proposed justifications for conducting these searches boil down to security and administrative concerns. As already set forth, defendants have failed to establish that individual male inmates pose a greater security threat than individual female inmates. Nor have they established that they had individualized reasonable suspicion. See Calvin, 405 F.Supp.2d at 943-45; Gary, 1998 WL 547116, at *13-14. Indeed, the record reflects that none of the searches of the class members resulted in detection of any weapons or drugs. Only one class member was ever found to have contraband, which consisted of two dollars. See Mary Beth G., 723 F.2d at 1272-73 (the fact that only a few items were recovered in strip searches belied defendants' claim that policy was necessary for security).

With respect to the administrative costs associated with modifying the current policy and practice with respect to class members, defendants fail to effectively distinguish female discharges in making their arguments. Although the number of daily male discharges exceeds that of female discharges, it is not disproportionate when *976 viewed in light of the jail population breakdown based on gender.

Plaintiffs argue there are several less intrusive and equally effective alternatives to the current policy and practice. They argue specifically that: there is sufficient space in the RCDC to hold male potential discharges until the Records Department determines whether the person is an actual discharge; the jail has the ability to utilize other space besides the RCDC to segregate potential discharges (such as the Criminal Court Building); the jail has the ability to identify before the court appearance whether any male inmates who receive possible discharges have other pending cases by printing out on the inmate's court pass all future court dates which would indicate whether the inmate was a possible discharge; the jail has the ability to identify after court whether any male inmates who receive possible discharges have pending cases; the jail has the ability to use Court Services to identify male inmates who receive possible discharges prior to returning to the RCDC; the jail has the ability to provide additional holding facilities by creating new bullpens to handle court discharges such as in the commissary and commissary storage areas which are adjacent to the RCDC and underutilized and have enough space to house four bullpens capable of holding in excess of 120 inmates (each of these areas would cost approximately $50,000 to $200,000 to construct). Defendants present additional arguments as to why none of these proposed alternatives are tenable, which are unpersuasive and in some cases unsupported by the record.

Although in Bell the Court noted that the existence of a ?less intrusive and equally effective alternative? is not dispositive, 441 U.S. at 559 n. 40, 99 S.Ct. 1861, courts in this Circuit have found the balance under Bell tipped in plaintiff's favor in the presence of reasonable alternatives which undermine defendants' proposed justification. See Campbell, 499 F.3d at 719 (finding that the lack of evidence to suggest ?any conceivable exigency that could be met only by strip-searching Campbell in public? helped tip Bell balance in plaintiff's favor); Canedy, 16 F.3d at 188 (?where it is reasonable ... to respect an inmate's constitutional privacy interests, doing so ... is a constitutional mandate?); Calvin, 405 F.Supp.2d at 943 (noting that strip searches ?have repeatedly [been] invalidated ... based on the reasoning that less invasive searches or other detention practices could obviate the need for a strip search? and that ?a prison system cannot rely on the realities of its own detention structure alone to justify an invasion of privacy as significant as a strip search?); Simenc v. Sheriff of DuPage County, Ill., No. 82 C 4778, 1985 WL 4896, at *4 (N.D.Ill. Dec. 9, 1985) (?At a minimum, jail officials should ensure that [ ] embarrassment is minimized by conducting the search in an area where it cannot be observed by anyone other than the person conducting the search.?).

I find the blanket strip search policy of male discharges violates the Fourth Amendment. The Bell factors weigh in plaintiffs' favor. Accordingly, plaintiffs' motion for summary judgment is granted.

C. Unreasonable Delay
Plaintiffs argue they were subjected to unreasonable delays in being released from the CCDC after receiving court-ordered discharges. Bullock and Reid were delayed 8.5 and 8 hours, respectively. Defendants argue the complexity of the discharge process justifies such a delay.

[18] Headnote Citing References The Supreme Court has set forth a 48 hour time limit for probable cause determination after arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). ?This is not to say that the probable cause determination in a particular case passes *977 constitutional muster simply because it is provided within 48 hours.? Id. In Chortek v. City of Milwaukee, 356 F.3d 740, 747 (7th Cir.2004) the Seventh Circuit required the government to justify a four hour detention-half the time that is at issue here. The issue, then, becomes whether the delay was reasonable. County of Riverside, 500 U.S. at 56, 111 S.Ct. 1661.

[19] Headnote Citing References[20] Headnote Citing References ?[T]he reasonableness of a length of detention typically ?is a question best left open for juries to answer based on the facts presented in each case.? ? Chortek, 356 F.3d at 747 (quoting Lewis v. O'Grady, 853 F.2d 1366, 1370 (7th Cir.1988) (holding that eleven-hour detention of individual waiting to be discharged presented a jury question)). ?Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility.? County of Riverside, 500 U.S. at 56, 111 S.Ct. 1661.

[21] Headnote Citing References Defendants seek summary judgment on the ground that they have provided a sufficient explanation for the delay and there is no evidence demonstrating an improper purpose for the delay as set forth in Chortek, 356 F.3d at 747-48. However, both parties have presented conflicting evidence concerning the reasonableness of the delay-mostly in the form of expert testimony. Plaintiffs have provided evidence that the jail computer system is quick, was not malfunctioning, and that the jail staff is able to complete the discharge process for females in a fraction of the time. Accordingly, I find plaintiffs have established there is a triable issue concerning the reasonableness of the delay and defendants are not entitled to summary judgment.

D. Qualified Immunity
[22] Headnote Citing References[23] Headnote Citing References County and local government entities are not covered by the Eleventh Amendment. Richman v. Sheahan, 270 F.3d 430, 439 (7th Cir.2001) (citation omitted). Defendants argue they are entitled to summary judgment on plaintiffs' damage claim because the Sheriff, although acting in his official capacity, ?could be considered an agent of Illinois government insofar as requiring the strip searching of all male and female inmates who return to their housing division.? (Def. Br. At 33-34.) FN4 If the Sheriff were acting as an arm of the state, then the claims for damages may not be brought in federal court. Id.

FN4. It must be noted that this suit concerns the Equal Protection and Fourth Amendment rights of male discharges (not all inmates).


[24] Headnote Citing References Defendants cite to the Illinois Administrative Code (?IAC?) in support of the proposition that all male and female inmates must be strip searched. The IAC does not support this. Instead, it provides

Detainees permitted to leave the confines of the jail temporarily, for any reason, shall be thoroughly searched prior to leaving and before re-entering the jail.

20 Ill. ADC 701.140(a). The provision does not mandate strip searches, just that the inmates be ?thoroughly searched.? See Weber v. Dell, 804 F.2d 796, 803 (2d Cir.1986) (rejecting same argument under the New York Administrative Code).FN5 Defendants*978 have not established the Sheriff was acting as an arm of the state and, therefore, are not entitled to qualified immunity. Their motion for summary judgment on this ground is denied.

FN5. Defendants argue that Illinois state appellate court decisions have interpreted ?thoroughly searched? under the Illinois Administrative Code to mean strip searched. Although strip searches were upheld in the cases referred to by defendants, none held that a sheriff was required by state law to conduct a strip search.


IV.
For the foregoing reasons, plaintiffs' motion for summary judgment is granted with respect to all claims except the unreasonable delay claim. Defendants' motion for summary judgment is denied. Defendants also filed a motion to strike, which is denied as moot for I did not rely on the affidavits of Sean Driscoll or Jeffrey Dorsey.