Thogmorton et al v. Reynolds et al
Filing
289
OPINION entered by Judge Sue E. Myerscough on 10/25/2022. The Defendants' Renewed Motion for Judgment as a Matter of Law or in the alternative, for a New Trial, d/e 273 is DENIED. (SEE WRITTEN OPINION) (MAS)
E-FILED
Tuesday, 25 October, 2022 04:02:32 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PATRICIA PHILLIPS, et al., on
behalf of themselves and a class
of others similarly situated,
Plaintiffs,
v.
MELODY HULETT, at al.,
Defendants.
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Case No. 12-3087
OPINION
SUE E. MYERSCOUGH, United States District Judge:
At the conclusion of a trial beginning on May 31, 2022, a jury
found Defendants Melody Hulett, Russell Reynolds, Renee Hatfield,
and Troy Dawdy liable for violating the rights of the Plaintiff class of
women who were subjected to strip and body cavity searches during
a March 31, 2011, cadet training exercise. See d/e 261. The jury
awarded compensatory and punitive damages to each of the six
testifying class members: Plaintiffs Patricia Phillips, Ieshia Brown,
Miranda Howard, Teresa Williams, Veela Morris, and Michelle Wells.
Id.
Before the Court is the Defendants’ Renewed Motion for
1
Judgment as a Matter of Law under Federal Rule of Civil Procedure
50(b) or, in the alternative, for a New Trial under Rule 59(e) [d/e 273].
For the reasons that follow, the Defendants’ motion is denied.
BACKGROUND
This case has a lengthy procedural history. In April 2016, U.S.
District Judge Richard Mills denied the Defendants’ motion for
summary judgment as to the Plaintiffs’ Eighth Amendment claims
and granted summary judgment on the Plaintiffs’ Fourth Amendment
claims. See d/e 122. The Court also left open the possibility of
injunctive relief. Id. at 19. The case proceeded to trial in November
2016 on the Plaintiffs’ Eighth Amendment claims against six
Defendants, including Hulett, Reynolds, Hatfield, and Dawdy. On
November 21, 2016, the jury returned a verdict in favor of all
Defendants.
See d/e 177. In December 2016, the Plaintiffs filed a
notice of appeal. See d/e 186.
On September 2, 2020, the Seventh Circuit issued its mandate
reversing the Court’s entry of partial summary judgment in favor of
the Defendants on Plaintiffs’ Fourth Amendment claims and
remanding the matter for further proceedings. See d/e 209; Henry
2
v. Hulett, 969 F.3d 769 (7th Cir. 2020). On August 19, 2021, Judge
Mills entered an Order denying the Defendants’ motion for summary
judgment on qualified immunity grounds as to the Fourth
Amendment claims. See d/e 217. In the same Order, Judge Mills
transferred the case to the undersigned for further proceedings. Id.
at 6.
The trial on the Fourth Amendment claims commenced on May
31, 2022. On June 7, 2022, a jury found Defendants Melody Hulett,
Russell Reynolds, Renee Hatfield, and Troy Dawdy liable for violating
the rights of the Plaintiff class of women. See d/e 261.
After the close of evidence, the Defendants moved for judgment
as a matter of law under Rule 50(a). See d/e 288-1, at 21. The
motion raised a number of grounds, including qualified immunity as
to all damages claims. Id. at 22. Specifically, the Defendants claimed
that no developed law at the time of the strip and body cavity search
told Defendants what does or does not constitute a reasonable
search. Id. at 23. Defendants further asserted that because a jury
had already determined that Defendants had not violated the Eighth
Amendment, they cannot be liable for punitive damages.
3
Id.
Additionally, the Defendants alleged that the entire class of Plaintiffs
had not suffered a concrete injury.
Id.
The Defendants also
contended that no representative Plaintiff made any allegations of
wrongdoing as to Defendants Hatfield and Hulett. Id. at 24. The
Defendants argued that, to the extent the Plaintiffs base their claims
on crude language, that does not give rise to a claim under the Fourth
Amendment.
Id. at 25.
The Defendants further contended that,
while the Plaintiffs allege that the only physical injuries resulted from
claims derived from cuffing and standing, neither representative
Plaintiff testified that Defendants Reynolds or Dowdy had any role
regarding the cuffing or standing. Id. at 26. The Court denied the
Defendants’ Rule 50(a) motion.
DISCUSSION
Legal standard
Federal Rule of Civil Procedure 50 authorizes district courts “to
enter judgment against a party who has been fully heard on an issue
during a jury trial if ‘a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.’”
Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012). The
4
Court construes the evidence strictly in favor of the Plaintiffs as the
prevailing party and “examines the evidence only to determine
whether the jury’s verdict could reasonably be based on that
evidence.” Id. The Court does not assess credibility or weigh the
evidence, and the Court “must disregard all evidence favorable to the
moving party that the jury was not required to believe.” Id.
“Because a post-verdict Rule 50(b) motion is ‘only a renewal’ of
a pre-verdict Rule 50(a) motion, a Rule 50(b) motion may be granted
‘only on grounds advanced in the preverdict motion.’”
Abellan v.
Lavelo Property Management, LLC, 948 F.3d 820, 827 (7th Cir. 2020)
(quoting Fed. R. Civ. P. 50(b) advisory committee’s note to 2006
amendment).
While the non-movant may waive or forfeit these
requirements, courts may enforce waiver or forfeiture if the nonmovant insists on their observance. See Abellan, 948 F.3d at 827.
“A waived claim or defense is one that a party has knowingly and
intelligently relinquished; a forfeited plea is one that a party has
merely failed to preserve.” Wood v. Milyard, 566 U.S. 463, 470 n.4
(2012).
5
In considering a motion for a new trial under Rule 59(a), a court
may order a new trial “only if the verdict is against the weight of the
evidence, the damages are excessive, or if for other reasons the trial
was not fair to the moving party.” Abellan, 948 F.3d at 827. A court’s
role in reviewing jury instructions is limited. See Jimenez v. City of
Chicago, 732 F.3d 710, 717 (7th Cir. 2013). Courts assess whether
the jury was confused or misled by deficient instructions. See id.
The Court would then need to find that Defendants were prejudiced
before ordering a new trial. See id.
Qualified immunity
The Defendants filed a renewed motion for judgment as a matter
of law under Rule 50(b) or, alternatively, for a new trial.
The
Defendants claim they are entitled to qualified immunity because the
Fourth Amendment right at issue here was not clearly established at
the relevant time because the Seventh Circuit’s en banc decision in
this case expanded the scope of prisoners’ privacy rights and,
simultaneously, Defendants’ liability. See d/e 273, at 7-11.
Qualified immunity protects public officials from liability for
money damages if “their conduct does not violate clearly established
6
statutory or constitutional rights of which a reasonable person would
have known.” Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th
Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To
defeat a qualified immunity defense by a state official, a plaintiff must
show “(1) that the official violated a statutory or constitutional right;
and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir.
2017) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Courts
are permitted to analyze the “clearly established” prong without first
considering whether the alleged constitutional right was violated. Id.
at 351.
To defeat the Defendants’ qualified immunity defense, Plaintiffs
have the burden of demonstrating that the alleged violations of their
constitutional rights were “clearly established.” Id. “To be clearly
established at the time of the challenged conduct, the right’s
contours must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Id.
The key inquiry involves whether the official acted reasonably based
on the particular circumstances he or she faced. Id.
7
While a plaintiff need not point to an identical case that finds
the alleged violation unlawful, the statutory or constitutional
question must be beyond debate due to controlling Supreme Court
or Seventh Circuit precedent.
Id.
In the absence of controlling
authority or persuasive authority that is based on a clear trend in the
caselaw, a plaintiff can show that a law was clearly established by
proving
that
defendant’s
conduct
was
“so
egregious
and
unreasonable that . . . no reasonable official could have thought he
was acting lawfully.”
Id. (quoting Abbott v. Sangamon County,
Illinois, 705 F.3d 706, 724 (7th Cir. 2013)).
In determining whether a law was clearly established, the Court
must ensure that the right allegedly violated is defined at the
appropriate level of specificity. Id. at 351. A court should not define
“clearly established law at a high level of generality.” Id. (quoting alKidd, 563 U.S. at 742). The crucial question is “whether the violative
nature of particular conduct is clearly established.” Id. (quoting
Mullenix v. Luna, 577 U.S. 7, 12 (2015)). “[T]he clearly established
law must be “particularized” to the facts of the case.” Id. (quoting
White v. Pauley, 137 S. Ct. 548, 552 (2017)).
8
In rejecting the Defendants’ qualified immunity defense in their
motion for summary judgment following the Seventh Circuit’s
remand, the Court noted Kingsley v. Hendrickson, 801 F.3d 828 (7th
Cir. 2015) was “somewhat analogous to this situation.” See d/e 217.
In Kingsley, the defendants argued that the Supreme Court had
resolved a circuit split and altered the substantive law of liability.
See Kingsley, 801 F.3d at 831. The defendants claimed that because
the state of the law was uncertain at the time they acted, defendants
could not be held liable for their actions.
See id. at 831.
The
Defendants here contend that any reliance on Kingsley is misplaced
because the Supreme Court there addressed the requisite mental
state for a Fourteenth Amendment claim but did not alter the
substantive law of liability—the same conduct was unlawful both
before and after the Supreme Court’s decision. See id. at 831-32.
The Defendants allege, by contrast, that the en banc decision in
Henry overruled existing precedent concerning the scope of a
prisoner’s Fourth Amendment rights to include a right to protection
from visual inspections, thereby creating a new constitutional
liability for Defendants.
See Henry, 969 F.3d at 783 (“[W]e thus
overrule the section of King addressing the plaintiff’s Fourth
9
Amendment claim and the bright-line rule it announced. Likewise,
we overrule our decision in Johnson to the extent it deems the Fourth
Amendment inapplicable
to visual inspections during bodily
searches.”) The Defendants allege that, in contrast to the scenario in
Kingsley, Defendants could not have known that Plaintiffs’ Fourth
Amendment rights were implicated by the visual strip searches
because no such right existed until the Seventh Circuit decided
Henry in 2020. See d/e 273, at 11. Accordingly, the Defendants
claim that Kingsley cannot be applied, and Defendants are entitled
to qualified immunity because the Fourth Amendment right at issue
was not established at the time of Defendants’ conduct. Id.
Next, in order to preserve the argument for further review, the
Defendants claim that to the extent the Seventh Circuit’s decision in
Kingsley precludes affording Defendants the defense of qualified
immunity, Kingsley was wrongly decided. Id. at 11-12.
The Defendants next allege that, even if it was clearly
established in 2011 that visual inspections of prisoners implicate
their Fourth Amendment rights, the contours of that right were not
clearly established because, at the time of the searches, no case law
10
existed which informed officials what constituted a reasonable search
under those circumstances. Id. at 12. Beginning in 2020, a visual
search of a prisoner may be found to be unreasonable, depending on
“the scope of the particular intrusions, the manner in which they
were conducted, the justification for initiating them, and the place in
which they were conducted.”
Henry, 969 F.3d at 784.
The
Defendants contend that that the second jury was tasked with
evaluating Defendants’ actions against a standard that did not apply
in 2011.
See d/e 273, at 13.
Defendants claim that qualified
immunity exists to preclude retrospective immunity like that. Id.
Additionally, the Defendants allege they could not have
anticipated their pre-search measures—that Plaintiffs were cuffed too
tightly for a long period while waiting to be searched, they were forced
to stand while waiting, and they were not allowed to use the
bathroom—would also be considered in the Fourth Amendment
analysis. Id. The Defendants claim that no case law, not even Henry,
established that the events leading up to a search might trigger the
Fourth Amendment. Id. Accordingly, the Defendants allege they are
also entitled to qualified immunity for their pre-search conduct.
11
The Court concludes that, because the Defendants’ qualified
immunity defense is not included in the proposed pretrial order [d/e
224] or final pretrial order [d/e 231], the qualified immunity defense
is waived based on Defendants’ failure to preserve.
Because the
pretrial order supersedes the pleadings, “a defense not raised in a
pretrial order is deemed waived.” SNA Nut Co. v. Haagen-Dazs Co.,
Inc., 302 F.3d 725, 732 (7th Cir. 2002); see also Maul v. Constan,
982 F.2d 784, 785-86 (7th Cir. 1991) (Because “[p]retrial orders
supersede the pleadings,” the failure to include qualified immunity
in the pretrial order may result in waiver). “In order for a pretrial
order to have any value as a procedural mechanism and to protect
against the possibility of either of the parties being taken by surprise
at trial, the parties must be held to the issues set forth in that order.”
Harper v. Albert, 400 F.3d 1052, 1063 (7th Cir. 2005). A pretrial
order “superced[es] the pleadings and establishes the issues to be
considered at trial.” SNA Nut Co., 302 F.3d at 732 (explaining “While
this result may seem harsh, pretrial orders help to prevent protracted
litigation due to changing theories and arguments such as those that
we are encountering in this case”). This “strict rule of forfeiture” is
12
necessary to prevent either party from being taken by surprise at
trial. See Harper v. Albert, 400 F.3d 1052, 1063 (7th Cir. 2005).
The Defendants here made no mention of a qualified immunity
defense in the pretrial order, including in the sections on contested
issues of fact and law and discussion of damages. See d/e 231.
Defendants did not seek to amend the pretrial order at any time
through the start of trial to include qualified immunity as a defense.
The Defendants did raise qualified immunity in their second
summary judgment motion.
See d/e 211.
After the motion was
denied (d/e 217), the Defendants abandoned the defense, declining
to pursue it in an interlocutory appeal and then failing to preserve it
in the pretrial order. See d/e 224 & 231.
The Court finds it appropriate to hold the parties to the claims
and defenses contained in the final pretrial order. Undoubtedly, the
information in the pretrial order affected the Plaintiffs’ trial strategy
in terms of what evidence to present. Because of this reliance during
trial, the Court concludes it would be unfair to allow Defendants to
raise qualified immunity at the close of all evidence and following the
13
verdict.
Accordingly, the Court concludes the Defendants have
forfeited the qualified immunity defense. 1
Punitive damages
The Defendants next claim that punitive damages are not
available on the basis that the issue was decided at the first trial.
See id. at 14-15. That jury found in favor of all Defendants on the
question of liability under the Eighth Amendment and thus did not
separately address punitive damages. Id. at 15. The Defendants note
that at the second trial, Defendants objected to submitting the
punitive damages issue to the jury along with liability under the
Fourth Amendment, arguing that a jury already determined that
Plaintiffs were unable to prove that punitive damages were
appropriate. Id. The Defendants claim they renewed that argument
in their motion for judgment as a matter of law at the close of all
evidence.
Id.
The Court overruled the objection and submitted
The Plaintiffs also contend that Defendants waived or forfeited specific qualified
immunity challenges by failing to preserve them in a Rule 50(a) motion. See d/e 288,
at 26-28. Additionally, the Plaintiffs argue the evidence at trial construed in favor of
the verdict on liability was sufficient to overcome a qualified immunity defense. See
id., at 28-57. Because the Court concludes that Defendants have forfeited the
qualified immunity defense, the Court need not address those arguments.
1
14
punitive damages to the second jury and denied the motion for
judgment as a matter of law. Id.
In cases bought under § 1983, a jury may assess punitive
damages if a “defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference
to the federally protected rights of others.” Smith v. Wade, 461 U.S.
30, 56 (1983). In cases involving the Eighth Amendment, the level of
culpability required for liability is the same as the general punitive
damage standard. See Walsh v. Mellas, 837 F.2d 789, 801 (7th Cir.
1988).
However, the “objectively unreasonable” standard of the
Fourth Amendment is lower than that of the Eighth Amendment. See
Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007); Henry, 969
F.3d at 780.
Because the first jury found that Plaintiffs failed to act with the
requisite mental state, the Defendants claim that jury necessarily
resolved the question of punitive damages. Id. at 16. That jury would
not have been able to award punitive damages by finding that
Defendants violated the lower, objective standard of the Fourth
Amendment but not the higher, subjective standard of the Eighth
15
Amendment. Id. at 15-16. The Defendants assert it was error for the
question of punitive damages to be submitted to the second jury, and
that portion of the verdict should be vacated. Id.
To the extent that Defendants claim issue preclusion bars the
Plaintiffs from seeking punitive damages on the Fourth Amendment
claims, the Court disagrees. Two of the elements that Defendants
must establish are that “(1) the issue sought to be precluded must be
the same as that involved in the prior litigation, [and] (2) the issue
must have been actually litigated.” E.E.O.C. v. AutoZone, Inc., 707
F.3d 824, 831. The availability of punitive damages on a Fourth
Amendment claim was not litigated in the prior trial.
Another
element is that the “determination of the issue must have been
essential to the final judgment.” See AutoZone, 707 F.3d at 831. No
determination of the availability of punitive damages under the
Fourth Amendment was essential to the jury verdict on the Eighth
Amendment claim.
Accordingly, the Defendants are unable to
establish issue preclusion foreclosing punitive damages on a Fourth
Amendment claim.
16
At the trial on the Plaintiffs’ Eighth Amendment claims, the
parties
presumably
were
cognizant
of
Eighth
Amendment
requirements in determining trial strategy. There was no reason for
the parties to consider Fourth Amendment standards in attempting
to establish punitive damages should be assessed or in defending
against punitive damages. Because summary judgment had been
entered in favor of Defendants on Plaintiffs’ Fourth Amendment
claim, the Plaintiffs did not have an opportunity to present a Fourth
Amendment claim at the first trial. If the Plaintiffs were able to assert
a Fourth Amendment claim at the first trial, the parties’ trial
strategies might well have been different. The Defendants cite no
authority for the proposition that a defense verdict on liability for an
Eighth Amendment claim preludes punitive damages on a Fourth
Amendment claim.
Additionally, the Defendants acknowledge that the Fourth
Amendment jury was correctly instructed that it could assess
punitive damages if it found that a Defendant’s conduct was
“accompanied by ill will or spite” or “reckless disregard of Plaintiff’s
[Fourth Amendment] rights,” because “Defendant simply did not care
17
about Plaintiff’s safety or [Fourth Amendment] rights.” See d/e 271,
at 38. The jury in the Fourth Amendment trial could have found that
Defendants recklessly exceeded the permissible scope of a strip
search, without finding their intent was to punish or humiliate,
because they simply did not care about Plaintiffs’ Fourth Amendment
rights. Even if the two verdicts were inconsistent, however, the Court
concludes that the second verdict should take precedence given that
Plaintiffs had an opportunity to present their Fourth Amendment
claim at the second trial, and the jury was instructed on the
applicable law. Accordingly, the Court has no basis to find that the
punitive damages issue was necessarily resolved by the first jury and
should not have been submitted to the second jury. The Court will
deny this portion of Defendants’ motion.
Compensatory damages
The Defendants next allege that compensatory damages are not
available under the Prison Litigation Reform Act, 42 U.S.C. §
1997e(e), which bars compensatory damages for mental or emotional
injuries without a prior showing of a physical injury or the
commission of a sexual act. Id. A sexual act is defined in 18 U.S.C.
18
§ 2246 and is not at issue in this case. The Defendants contend none
of the Plaintiffs’ allegations constitute a “physical injury,” which is
not defined in the PLRA and has not been defined by the Seventh
Circuit. Id. at 16-17.
The Defendants state that, at the close of evidence, Defendants
moved for judgment as a matter of law on the basis that Plaintiffs
had failed to allege a physical injury. Id. at 17. The Court denied
that motion. Id. The Defendants argue this was error, as standing
and wearing cuffs, even when applied too tightly, may be
uncomfortable but does not constitute a physical injury that satisfies
the PLRA. Id. On that basis, the Defendants claim the Court should
vacate the award of compensatory damages. Id.
The Defendants further allege that, assuming the Court viewed
the issue of physical injury as one for the jury to decide, the Court
erred in not instructing the jury on the PLRA limitation after
Defendants submitted a proposed instruction that would have
informed the jury of the PLRA limitation.
Id.
Ultimately, the
Defendants claim that without such an instruction, the jury awarded
compensatory damages for mental and emotional injuries without
19
determining if a physical injury occurred. Id. The Defendants ask
the Court to vacate the award of compensatory damages or grant
Defendants a new trial in which the jury is properly instructed
regarding the PLRA. Id.
The Defendants next allege that, to the extent the Plaintiffs
claim that the PLRA does not apply because not all the Plaintiffs were
incarcerated when the original complaint was filed, Plaintiffs’
argument is contrary to the plain language of the statute. Id.
The Court finds that Defendants waived their PLRA physical
injury defense by failing to include it as a barrier to compensatory
damages in the final pretrial order.
The Defendants did identify
“whether Plaintiffs suffered damages” as a contested legal issue. See
d/e 231, at 5. However, that framing of the issue is far broader than
whether the physical injury provision precluded compensatory
damages.
Defendants did not identify the
physical injury
requirement in the final pretrial order even though Plaintiffs
indicated they were seeking damages for “emotional injury including
humiliation, embarrassment, shame, and degradation, as well as
20
damages associated with the violation of their constitutional rights.”
See d/e 231, at 6.
Before trial, the parties eventually agreed that liability and
damages should be decided at the trial.
See d/e 247 & 252.
However, the Defendants did not seek to amend the pretrial order to
add a legal or factual issue regarding physical injury or address the
issue prior to trial. Because the issue was not properly preserved in
the final pretrial order, the Court finds that the physical injury
defense, like qualified immunity, has been forfeited.
Additionally, the Defendants did not raise the physical injury
defense in their summary judgment motions. Defendants did not
raise a challenge based on the PLRA’s physical injury requirement in
the first round of summary judgment briefing. See d/e 102 & 103.
On appeal, the Defendants attempted to raise the issue but the
Seventh Circuit declined to reach it stating:
Defendants moved for summary judgment. . . . Defendants did
not . . . argue that Plaintiffs failed to present evidence of
physical injury pursuant to the Prison Litigation Reform Act . .
..
Defendants did not raise this argument below, and therefore
have waived it for purposes of this appeal. . . .
21
Because the district court granted summary judgment on
Plaintiffs’ Fourth Amendment claim, it did not assess any of
these arguments pertaining to the availability of remedies as to
that claim. We thus also leave these issues for the district
court’s initial determination on remand.
Henry, 969 F.3d at 775, 787. Following the mandate, Judge Mills set
a dispositive motion deadline of December 18, 2020, at which time
any issues consistent with the Seventh Circuit’s Opinion were to be
addressed.
See Text Order of Sept. 29, 2020.
However, the
Defendants did not raise the physical injury requirement challenge
in their second summary judgment motion. See d/e 211.
The Defendants obviously knew they had attempted to raise the
physical injury requirement challenge before the Seventh Circuit.
However, the issue was not raised in the summary judgment motion
following the mandate. Accordingly, the issue was also waived or
forfeited at this stage. 2
It appears that the physical injury requirement challenge was first raised
approximately one week before jury selection in the Eighth Amendment trial. See d/e
144, Pls. MIL No. 9. Plaintiffs immediately asserted waiver. Id. The Court denied the
motion as premature because damages had been bifurcated. See d/e 157, at 4.
Although the issue was never adjudicated, this appears to be another basis for finding
that Defendants waived the PLRA physical injury defense.
2
22
For all of these reasons, the Court concludes that the physical
injury requirement has been forfeited.
Case as a class action
The Defendants next claim that the case proceeded improperly
as a class action.
See d/e 273, at 18.
At the second trial, the
Plaintiffs called as witnesses both damages class representatives
(Phillips and Morris) and both injunctive class representatives (Ieshia
Brown and Howard), as well as two non-representative class
members. Id. The Defendants claim that the jury was not instructed
which witnesses were damages class representatives, and all six were
included on the verdict form without distinction. Id.
The Defendants state that, at the close of all evidence,
Defendants objected to the class as certified as part of their motion
for judgment as matter of law.
Id.
Defendants claim that trial
evidence showed the damages class representatives were not typical
of the class. Id. The Court denied Defendants’ motion. Id.
The Defendants further allege that, the damages class
representatives—Phillips and Morris—did not have experiences on
March 31, 2011, that were typical of the other class members. Id.
23
Neither Phillips nor Morris testified that any of the Defendants put
the cuffs on them, had any knowledge that the cuffs were too tight,
or were requested to loosen the cuffs; neither class representative
testified that Defendants told them they could not sit; and neither
testified about the denial of the bathroom and the unhygienic
conditions during the searches.
Id. at 18-19.
Therefore, the
Defendants claim that the representatives were not typical of the
class and all class members were not subjected to the same set of
conditions. Id. at 19. Citing Federal of Civil Procedure 23(c)(1)(C),
the Defendants note that an order granting or denying class
certification can be amended at any time before entry of judgment.
Id. at 18.
The Defendants further claim the Court erred in including all
six class members on the verdict form without distinguishing as to
who was a class representative and in refusing to instruct a jury
what to do if it did not believe each representative had proved her
case. Id. at 19. Defendants seek a new trial with proper instructions
regarding the class representatives and their burden of proof. Id.
24
As the Plaintiffs note, the Defendants’ arguments regarding
class action
procedure are conclusory, unsupported by record
citation, and almost entirely devoid of authority. 3 See d/e 288, at 77.
The Defendants’ challenges to commonality and typicality are
unsupported.
Defendants make allegations about handcuffing,
standing and hygiene without citing to the record. In 2013, the Court
certified the class over Defendants’ objections, finding the class
representatives’ experiences typical of the class. See d/e 68, at 8 and
87, at 7-8. Defendants did not ask the Court to reconsider that ruling
or seek a Rule 23(f) appeal of the class certification ruling. Between
2013 and the close of evidence at the June 2022 trial, the Defendants
did not challenge commonality or typicality or seek decertification or
disqualification of any class representatives. Defendant also did not
raise such issues in their first summary judgment motion, at any
time prior to the Eighth Amendment trial, or immediately following
the Eighth Amendment trial.
The Defendants do cite Federal Rule of Civil Procedure 23(c)(1)(C) for the proposition
that an order denying or granting class certification can be altered or amended any
time before entry of judgment.
3
25
When the Seventh Circuit initially considered the Plaintiffs’
appeal of the dismissal of the Fourth Amendment claims, the
Defendants did not raise any issue as to certification. After rehearing
en banc was granted, the Defendants did raise the issue, stating:
“Even if plaintiffs were to survive summary judgment on their Fourth
Amendment theory and overcome the bar on compensatory and
punitive damages, the damages class would have to be de-certified
because the summary judgment evidence established that the
inmates had not presented questions of law or fact common to the
class.” See Case No. 16-4234 (7th Cir.), at 56. The Seventh Circuit
declined to consider the issue because it was outside the scope of the
court’s review absent a cross-appeal. See Henry, 969 F.3d at 787.
On remand, the parties were given the opportunity to file
dispositive motions.
See Text Order of Sept. 29, 2020.
The
Defendants did not raise any challenges to the class action procedure
in their second summary judgment motions.
See d/e 211, 241.
Moreover, Defendants did not challenge the certification or typicality
of class representatives in any other pretrial filing. The Defendants
had no objection to the substitution of Veela Morris and Miranda
26
Heyward
as
class
representatives
in
place
of
previous
representatives. See d/e 226, at 2; Text Order of Dec. 17, 2021; Text
Order of May 18, 2022. Additionally, the Defendants proffered no
objection to class action procedures in the final pretrial order [d/e
231]. The parties agreed on the class action damages instruction and
jointly submitted the instruction. See d/e 270, at 28, adopted by
Court at 288-1, 6/6/2022 Trial Trans. Excerpts, at 9:17-9:20. Only
after the close of evidence did Defendants, for the first time, raise an
issue about the class representatives. Based on the foregoing, the
Court concludes that Defendants have forfeited any challenges to
class certification through their delay, their omission of such
challenges in the pretrial order, and their contrary stipulations.
Accordingly, any challenge to class action procedures--including any
challenge to damages representatives, injunctive representatives,
testifying class members, and verdict forms—has been forfeited.
Jury instruction on deference to prison administrators
The Defendants next allege the Court erred in not instructing
the jury on the deference owed to prison administrators. Id. “When
evaluating reasonableness, in the context of strip searches of
27
prisoners as in others, courts must afford prison administrators
‘wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.’” Henry, 969
F.3d at 783 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). The
Defendants claim the Court erred in refusing Defendants’ jury
instruction that conveyed that information, and a new trial should
be granted with an appropriate instruction on the issue. Id. at 1920.
The Court rejected proposed instructions from the Plaintiffs and
Defendants and gave the following instruction:
Prison officials may conduct strip searches for the purpose of
preserving safety, security, discipline, and order. Even strip
searches that are conducted to serve those legitimate purposes
must be carried out in a reasonable manner.
In deciding whether the strip searches in this case were
unreasonable you should consider all the circumstances,
including the scope of the intrusions, the manner in which the
strip searches were conducted, the justification for conducting
the strip searches, and the place in which the strip searches
were conducted.
You must decide whether the Defendants you are considering
subjected Plaintiffs to unreasonable strip searches from the
perspective of a reasonable officer facing the same
circumstances that the Defendant faced. You must make this
decision based on what the Defendant knew at the time the strip
28
searches were conducted, not based on matters learned after
the strip searches were conducted.
See d/e 271, at 32-33. Although the Defendants initially objected to
this instruction before the final two sentences were added, the
Defendants stated they had no objection after those sentences were
included. See d/e 288-1, at 20:7-21:4; 288-14, at 6:9-6:25. Because
the Defendants agreed to this instruction as an accurate statement
of the law, Defendants cannot show the Court erred in giving it. See
Doe v. Johnson, 52 F.3d 1448, 1460 (7th Cir. 1995) (“[I]n a civil case,
a litigant may not attack an instruction of which he was the
proponent.”).
Accordingly, the Court concludes that Defendants
have forfeited a challenge to instructing the jury regarding the
deference owed to prison administrators.
CONCLUSION
The Court concludes that each of the Defendants’ challenges to
the jury verdict are either forfeited or fail on the merits. Accordingly,
the Court will deny the motion for judgment as matter of law under
Rule 50(b) or, alternatively, for a new trial under Rule 59.
29
For the reasons stated herein, the Defendants’ Renewed Motion
for Judgment as a Matter of Law or, in the alternative, for a New Trial
[d/e 273] is DENIED.
ENTER: October 25, 2022
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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