Purnell v. Sheriff of Cook County et al

Filing 47

MEMORANDUM Opinion and Order Signed by the Honorable Blanche M. Manning on 5/4/2009:Mailed notice(rth, )

UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF ILLINOIS E A S T E R N DIVISION L A R R Y PURNELL, P l a i n t i ff , v. S H E R IF F OF COOK COUNTY, et al., D e fe n d a n t s . ) ) ) ) ) ) ) ) )

N o . 07 C 7070

M E M O R A N D U M OPINION AND ORDER T h e plaintiff, currently a federal prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, Cook County and its Sheriff, violated t h e plaintiff's constitutional rights by repeatedly subjecting him to an illegal search and seizure. More s p e c if ic a lly, the plaintiff alleges that on multiple occasions when he was admitted to the jail, he was re q u ir e d to submit to a non-consensual test for sexually transmitted diseases that involved the in s e rtio n of a cotton swab into his penis. This matter is before for ruling on the defendants' motion to dismiss, which the court is treating as a motion for summary judgment. See Fed. R. Civ. P. 12(c); M in u t e Order of January 29, 2009 (converting the motion to summary judgment and granting the p a rtie s the opportunity to submit any additional materials they deemed relevant). For the reasons s ta te d in this order, the motion is granted. S u m m a r y judgment "should be rendered if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material fact and th a t the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex C o rp . v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7 th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and d ra w all reasonable inferences in the light most favorable to the non-moving party. Walker v. N o rth e a s t Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000).

H o w e v e r, Rule 56(c) "mandates the entry of summary judgment, after adequate time for d is c o v e ry and upon motion, against a party who fails to make a showing sufficient to establish the e x is te n c e of an element essential to that party's case, and on which that party will bear the burden o f proof at trial." Celotex, 477 U.S. at 322. "W h e re the record taken as a whole could not lead a r a t i o n a l trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. E x p e ria n Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted). FACTS T h e defendants filed a statement of uncontested material facts pursuant to Local Rule 5 6 .1 (a )(3 ) (N.D. Ill.). Together with their summary judgment motion, the defendants served on the p la in tif f the mandatory notice under Local Rule 56.2, explaining the requirements of the Local Rules a n d warning the plaintiff that his failure to respond with appropriate evidentiary support could result in entry of judgment against him. (Document no. 40, Notice to Pro Se Litigant.) Despite the a d m o n itio n , the plaintiff has not submitted a statement of contested facts supported by citations to th e record; instead, he simply states his opposition to certain asserted facts. However, unsupported s ta te m e n ts in a brief are not evidence and cannot be given any weight. See Smith v. Lamz, 321 F.3d 6 8 0 , 683 (7th Cir. 2003) (failure to controvert the facts as set forth in the moving party's statement re s u lts in those facts being deemed admitted; mere disagreement is inadequate if made without re f e re n c e to specific supporting material). Because the plaintiff is proceeding pro se, the court will consider the factual assertions he m a k e s in his brief, but only to the extent that the plaintiff could properly testify about the matters a s s e rte d at trial­that is, only with respect to those facts within the plaintiff's personal knowledge. See F e d . R. Evid. 602. The following facts, gathered from the defendants' statement of facts, the parties' e x h ib its , and the record in Case No. 06 C 0493 (N.D. Ill.) are therefore deemed undisputed for p u rp o s e s of this motion:

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In 2006, a former detainee at the Cook County Jail filed suit regarding the non-consensual in s e rtio n of a cotton swab in his penis as part of his admission to the jail. (See Jackson v. Sheriff of C o o k County, et al., Case No. 06 C 0493 (N.D. Ill.), Complaint, document no. 1.) Shortly thereafter, th e complaint was amended to seek class action status on behalf of all pre-trial detainees who, on o r after January 27, 2004, had been subjected to the cotton swab test for sexually transmitted d is e a s e s . (Jackson, supra, Amended Complaint, document no. 7.) In 2007, the parties reached a settlement agreement in Jackson. (Defendants' Exhibit 3, S e ttle m e n t Agreement, document no. 228 in case no. 06 C 0493.) Judge Coar of this district, who p r e s id e d over Jackson, approved the form and manner of a notice sent to class members. See J a c k s o n , supra, Minute Entry of August 29, 2007. The notice granted class members until October 8 , 2007, to object to the proposed settlement agreement and/or to opt out. (Settlement Agreement, p . 5; Plaintiff's Exhibit 6, "Notice of Settlement of Class Action.") The notice was sent by first class m a il to the last "ascertainable" address of class members, with class counsel directed to make "re a s o n a b le efforts" to locate each class member. (Id.) Class counsel Kenneth Flaxman supervised the mailing of the notice to class members. (D e f e n d a n ts ' Exhibit 5, Affidavit of Kenneth Flaxman, ¶¶ 1, 3.) At the time notice was mailed out to c la s s members, Flaxman was unaware of any inmate in federal custody. (Id., ¶ 5.) In connection with the Jackson litigation, Andrew Krok, a programmer for the Cook County o f Department of Corrections, created a database of all males booked into the Cook County Jail from J a n u a ry 27, 2004, through March 31, 2005. (Defendants' Exhibit 4, Affidavit of Andrew Krok, ¶ 2.) K ro k gathered names, addresses, birth dates, and other identifying information for each inmate. (Id., ¶ 3.) O n e of the inmates listed was a Larry Purnell, for whom Krok obtained a street address in In d ia n a . (Id., ¶ 4.). The plaintiff concedes that he lives at that address when not incarcerated, but

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p o in ts out that the computerized print-out of the address lacked an east/west designation and in c lu d e d the wrong ZIP code. In addition, there is apparently more than one Larry Purnell in the area who has been in c a rc e ra te d at the Cook County Jail. (Plaintiff's Exhibit 4, Letter from the Office of Corporation C o u n s e l.) The plaintiff maintains that he therefore did not receive actual notice of the lawsuit until the e n d of November 2007, when his son received notice of the pay-out.1 T h e court approved the settlement agreement on November 2, 2007. (Defendants' Exhibit 1 0 , Minute Entry (Coar, J.).) On December 17, 2007, the plaintiff initiated this independent lawsuit. ("Notice for Suit for D a m a g e s ," document no. 1.) The com p la in t, alleging six instances of the challenged medical test d u rin g jail intake in 2004 and 2005, encompassed the time period covered by the Jackson class a c tio n . On or about April 24, 2008, the plaintiff submitted an "opt-out" notice in Jackson. (Defendants' E x h ib it E, Plaintiff's Opt-Out Form.) Although dated April 2008, the plaintiff made a notation that, "I s e n t you the first O.P.T. form in November 2007." (Ibid.) D IS C U S S IO N N o material facts are in dispute, and the court finds that the defendants are entitled to ju d g m e n t as a matter of law. Because the plaintiff failed to "opt out" of the Jackson class settlement in a timely manner, this suit is barred by the doctrine of res judicata. It is largely irrelevant whether the Plaintiff received actual notice of the class settlement. In F o n ta n a v. Elrod, 826 F.2d 729 (7th Cir. 1987), individuals who were members of the certified class in a prior class action filed a new lawsuit after their petition to file a late claim in the earlier case was

1

A l th o u g h the plaintiff cites the form as evidence that was his first indication of the existence of the c la s s action, the notice makes specific reference to receipt of Damien Purnell's previously received c la im form. Hence, the plaintiff's son, at least, had notice before the end of November 2007, when th e confirmation notice was mailed to him.

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d e n ie d . The court dismissed the second lawsuit on grounds of res judicata, and the U.S. Court of A p p e a ls for the Seventh Circuit affirmed. Here, as in Fontana, the district court in the first case (a) o rd e re d that notice be sent to each member of the class, (b) determined that the best practicable n o tic e had been provided, and (c) following a fairness hearing, approved the settlement. In addition, in the case at bar, like in Fontana, the plaintiff is indisputably a class member raising the same claim a s resolved in the prior class action. For purposes of the dispositive motion, the court will accept at face value the plaintiff's re p re s e n ta tio n that he did not receive timely notice of the class settlement and his right to opt out, n o tw ith s ta n d in g the mailing of the notice to his home address. Nevertheless, although it is most u n f o rtu n a te that the plaintiff did not receive actual notice, he is bound by the terms of the settlement b e c a u s e notice to the class was reasonable. Fontana, 826 F.2d at 731. "W h ile the notice must be a d e q u a te , it is not necessary that each member of the class actually receive that notice. `[A]n absent c la s s member will be bound by any judgment that is entered if appropriate notice is given, even t h o u g h that individual never actually received notice.' " Id. at 732, citing 7B C. W rig h t, A. Miller & M. K a n e , Federal Practice and Procedure § 1789, at 253 (2d ed. 1986). Even assuming that the plaintiff filed his opt-out form in November 2007 rather than in April 2 0 0 8 , he had already missed the deadline. "In any settlement, there will invariably be some class m e m b e rs who may not receive timely notice of the settlement. Still, the function of the opt out d e a d lin e serves an important purpose, and it should not easily be disturbed. The defendants in this c a s e mailed notice to Class Members in compliance with the instructions of this court." Breslow v. P ru d e n tia l-B a c h e Properties, Inc., No. 91 C 1230, 1994 W L 478611, 4 (N.D. Ill. Sep. 1, 1994) (K o c o ra s , J.) (denying a motion for relief from judgment after the opt-out deadline had passed); see a ls o In re VMS Securities Litigation, 156 F.R.D. 635 (N.D. Ill. 1994) (Conlon, J.) (ruling that a class m e m b e r was bound by the final judgment approving a settlement agreement in a securities fraud c la s s action, even if he did not receive actual notice of his right to opt out of the class action, so long a s the defendant provided the best practicable notice by mailing a timely notice to class members).

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B e c a u s e the plaintiff failed to properly opt out of the Jackson class settlement by the date imposed b y the court, he is precluded from pursuing an independent lawsuit. In sum, the court finds that this suit is barred by the settlement agreement reached in Jackson v . Sheriff of Cook County, Case No. 06 C 0493 (N.D. Ill.), because the plaintiff failed to "opt out" of th e class by the court-imposed deadline. Summary judgment is accordingly granted in favor of the d e f e n d a n ts . I f the plaintiff wishes to appeal this final judgment, he may file a notice of appeal with this court w ith in thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in fo rm a pauperis should set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P . 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455 appellate filing fee irre s p e c tiv e of the outcome of the appeal. Evans v. Illinois Dept. of Corrections, 150 F.3d 810, 812 (7 th Cir. 1998). Furthermore, if the appeal is found to be non-meritorious, the plaintiff may be a s s e s s e d a "strike" under 28 U.S.C. § 1915(g). The plaintiff is warned that, pursuant to that statute, if a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious, or f a ilin g to state a claim, he may not file suit in federal court without prepaying the filing fee unless he is in imminent danger of serious physical injury. Id. CONCLUSION F o r the foregoing reasons, the defendants' motion to dismiss [#29], which the court is treating a s a motion for summary judgment, is granted. The court finds that the plaintiff is bound by the s e ttle m e n t agreement reached in Jackson v. Sheriff of Cook County, Case No. 06 C 0493 (N.D. Ill.), a n d therefore grants summary judgment in favor of the defendants pursuant to Fed. R. Civ. P. 56. T h e case is terminated. The plaintiff's motion for leave to file an amended complaint to correct a s c riv e n e r's error regarding the amount of damages sought [#25] is denied as moot.

Enter:____________________________________ B la n c h e M. Manning U n ite d States District Judge

D a te : May 4, 2009

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