Zaborowski et al v. Sheriff of Cook County et al

Filing 279

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 12/20/2011:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CATHERINE ZABOROWSKI and
)
SIMONE JACKSON, individually and
)
on behalf of a class, NICOLE BLAIR, LISA)
BROWN, DANIELLE BRYANT, ISABEL )
CARMONA, MARIANNE CRUZ, CORA )
FLETCHER, DENAE JOHNSON,
)
DEBORAH LEE, FELICIA LIGON,
)
ANGELA OSS, SHEENA RICHARDSON, )
BENNETTA SIDNEY, MONIQUE
)
STARNES, and LATANIA WALTON,
)
individually,
)
)
Plaintiffs,
)
)
v.
)
)
THOMAS J. DART, SHERIFF OF COOK )
COUNTY and COOK COUNTY,
)
ILLINOIS,
)
)
Defendants.
)

Case No. 08 C 6946

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
In their Second Amended Class Action Complaint, Plaintiffs Catherine Zaborowski and
Simone Jackson, individually, and on behalf of a class (“Class Plaintiffs”), allege violations of
their Fourteenth Amendment substantive due process rights and state law against Thomas J.
Dart, the Sheriff of Cook County, in his official capacity, in relation to the alleged policy of
shackling pregnant detainees1 during labor, delivery, and/or recovery following delivery. The
Individual Plaintiffs allege an individual capacity claim against Sheriff Dart based on his delay

1

The parties use the terms “detainee” and “inmate” interchangeably, although it is
undisputed that Plaintiffs were pretrial detainees and not convicted prisoners. (See R. 257,
8/11/11, Reply Brief, at 2 n.1.)

in instituting any remedial action after he learned about the shackling policy.
Before the Court are the parties’ cross-motions for summary judgment on the Class
Plaintiffs’ official capacity and state law claims pursuant to Federal Rule of Civil Procedure 56.
Also before the Court is Sheriff Dart’s motion for summary judgment as to the Individual
Plaintiffs’ individual capacity claim, also brought pursuant to Rule 56. Because there are
genuine disputes as to the material facts underlying the Class Plaintiffs’ substantive due process
and state law claims, the Court denies the parties’ cross-motions for summary judgment. The
Court, however, grants Sheriff Dart’s motion for summary judgment in regard to the individual
capacity claim and dismisses Sheriff Dart in his individual capacity from this lawsuit.
BACKGROUND
I.

Northern District of Illinois Local Rule 56.1
Northern District of Illinois Local Rule 56.1 assists the Court by “organizing the

evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to
prove a disputed fact with admissible evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs.,
233 F.3d 524, 527 (7th Cir. 2000). “The Rule is designed, in part, to aid the district court,
‘which does not have the advantage of the parties’ familiarity with the record and often cannot
afford to spend the time combing the record to locate the relevant information,’ in determining
whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation
omitted). Specifically, Local Rule 56.1(a)(3) requires the moving party to provide “a statement
of material facts as to which the moving party contends there is no genuine issue.” Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). “The opposing party is required to file ‘a
response to each numbered paragraph in the moving party’s statement, including, in the case of

2

any disagreement, specific references to the affidavits, parts of the record, and other supporting
materials relied upon.” Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C)
requires the nonmoving party to present a separate statement of additional facts that requires the
denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th
Cir. 2008).
The purpose of Local Rule 56.1 statements is to identify the relevant admissible evidence
supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467
F.3d 1057, 1060 (7th Cir. 2006) (“statement of material facts did [] not comply with Rule 56.1 as
it failed to adequately cite the record and was filled with irrelevant information, legal arguments,
and conjecture”). The Court may disregard statements and responses that do not properly cite to
the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005).
Moreover, the requirements for responses under Local Rule 56.1 are “not satisfied by evasive
denials that do not fairly meet the substance of the material facts asserted.” Bordelon, 233 F.3d
at 528. “District courts have broad discretion to enforce and require strict compliance with their
local rules.” Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652, 655 (7th Cir. 2011).
Many of the parties’ Local Rule 56.1 statements and responses are argumentative,
evasive, and do not properly cite to the record. When culling the relevant facts of this case, the
Court considered each statement and response individually to determine whether they were
proper under the local rules.
II.

Relevant Facts
This case is partially proceeding as a class action pursuant to Federal Rule of Civil

Procedure 23(b)(3) for: “All women in the custody of defendant Sheriff on and after December

3

4, 2006, who have been or who will be shackled during labor, delivery, or recovery following
delivery.” (R. 217, Pls.’ Rule 56.1 Stmt. Facts ¶ 1.) The Individual Plaintiffs, who are bringing
an individual capacity claim against Sheriff Thomas J. Dart, include Nicole Blair, Lisa Brown,
Danielle Bryant, Isabel Carmona, Marianne Cruz, Cora Fletcher, Denae Johnson, Deborah Lee,
Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, and Latania
Walton. (R. 221, Defs.’ Rule 56.1 Stmt. Facts ¶ 3.) Defendants are the Sheriff of Cook County
and Cook County, Illinois.2 (Pls.’ Stmt. Facts ¶ 2.)
In 1999, the Sheriff’s Office created the Department of Women’s Justice Services
(“DWJS”) that specifically focuses on women offenders. (R. 214, Dart Rule 56.1 Stmt. Facts ¶
34.) The DWJS’s mission is to create integrated programs and services that break the intergenerational cycle of trauma, addiction, and crime for women and their children. (Id.) These
goals are achieved through various programs, including the Maternal Objective Management
(“MOMs”) program. (Id.) The MOMs program is a residential program that is currently located
outside of the Cook County Jail (“CCJ”) Complex at the Haymarket Center and provides
pregnant and postpartum detainees treatment for mental health, physical health, and substance
abuse, as well as other supportive services. (Pls.’ Stmt. Facts ¶ 5; Dart Stmt. Facts ¶ 55; Defs.’
Stmt. Facts ¶ 24.)
From December 2006 until October 14, 2008, if a pregnant detainee assigned to the

2

Although Cook County cannot be held vicariously liable for Sheriff Dart’s alleged
misconduct in relation to the Individual Plaintiffs’ individual capacity claim, because Illinois
counties have the duty to indemnify judgments against county sheriffs in their official capacity,
Cook County is a necessary party to this lawsuit. See Askew v. Sheriff of Cook County, 568 F.3d
632, 636-37 (7th Cir. 2009); Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir.
2003); see also Moy v. County of Cook, 159 Ill.2d 519, 528-32, 203 Ill.Dec. 776, 640 N.E.2d 926
(Ill. 1994).
4

MOMs program was in labor, a Haymarket staff member would transport her to an outlying
hospital, which in most cases was the John H. Stroger, Jr. Hospital of Cook County. (Defs.’
Stmt. Facts ¶ 16; Dart Stmt. Facts ¶ 58.) Also during this time period, correctional officers did
not restrain detainees in the MOMs program while they were at the MOMs facility or in
transport to or from a medical facility. (Dart Stmt. Facts ¶ 59; R. 242, Pls.’ Stmt. Add’l Facts ¶
1.) Up until October 14, 2008, once a MOMs participant was admitted to a hospital, she was
turned over to External Operations staff to be guarded in accordance with the External
Operations policy in effect. (Defs.’ Stmt. Facts ¶ 29; Dart Stmt. Facts ¶ 60.) Effective October
14, 2008, correctional officers did not restrain detainees in the MOMs program in any way
during the course of their pregnancy, including transportation to the hospital, labor, delivery, or
post-delivery recovery. (Dart Stmt. Facts ¶ 64; Pls.’ Stmt. Add’l Facts ¶ 3.)
Pregnant detainees at the CCJ Complex who were eligible for placement in the MOMs
program often remained at the CCJ Complex if the MOMs program was full. (Pl.’s Stmt. Facts ¶
6.) There is evidence in the record that until April 2010, correctional officers shackled pregnant
detainees housed at the CCJ Complex while transporting them to the hospital and at the hospital
while they were in labor. (Id. ¶¶ 11, 23(b).) A correctional officer would accompany a pregnant
detainee housed at the CCJ Complex in the ambulance on the way to the hospital and one or two
other correctional officers would follow in a squad car. (Id. ¶ 12.)
The Sheriff of Cook County’s Policy Number EO-32, External Operations, Hospital
Policy and Procedure, effective July 25, 2006, concerning the procedures for transporting
detainees housed outside of the CCJ Complex, states:
(a) “In accordance with Illinois Statute 730 ILCS 125/17.5 (Pregnant Female
Prisoners) NO handcuffs, leg irons or waist chains shall be used on a female
5

inmate (detainee) who is in labor, this includes while being transported to a
medical facility.”
(b) “A female External Operations Officer is to be assigned to the pregnant
inmate (detainee) whenever possible.”
(c) “The External Operations Officer is to remain no further than outside the
delivery room door once the pregnant inmate (detainee) enters the room.”
(d) “The External Operations Officer will follow all hospital policies that do not
conflict with maintaining the security of and preventing the escape of the inmate
(detainee).”
(Defs.’ Stmt. Facts ¶ 51.) (emphasis added). The 2008 General Order is substantially the same
as the 2006 General Order regarding pregnant detainees in labor. (Id. ¶ 53.) Neither the 2006 or
2008 General Orders define “labor,” although the 2010 General Order defines “pregnant subject
in labor” as “any individual in the custody of the Cook County Sheriff’s Office who claims to be
in labor or giving birth, appears to be in labor, or who is verified by medical personnel to be in
labor.” (Id. ¶¶ 51, 53, 60.) The relevant 2010 General Order also barred the use of leg shackles
on pregnant detainees regardless of the stage of their pregnancy, including up to two weeks after
delivery. (Id. ¶ 59.) In February 2011, the Sheriff’s Office also adopted a General Order
prohibiting the shackling of “postpartum subjects.” (Pls.’ Stmt. Facts ¶ 27.)
At all times relevant to this lawsuit, and pursuant to Chapter 730, Corrections,
specifically 730 ILCS 125/17.5,3 the law in Illinois regarding the use of restraints on pregnant
detainees stated:
Notwithstanding any other statute, directive, or administrative regulation, when a
pregnant female prisoner is brought to a hospital from a county jail for the
purpose of delivering her baby, no handcuffs, shackles, or restraints of any kind

3

Chapter 55, Counties, of the Illinois Compiled Statutes Annotated, states this same
language. See 55 ILCS 5/3-15003.6.
6

may be used during her transport to a medical facility for the purpose of
delivering her baby. Under no circumstances may leg irons or shackles or waist
shackles be used on any pregnant female prisoner who is in labor. Upon the
pregnant female prisoner’s entry to the hospital delivery room, a county
correctional officer must be posted immediately outside the delivery room. The
Sheriff must provide for adequate personnel to monitor the pregnant female
prisoner during her transport to and from the hospital and during her stay at the
hospital.
(Defs.’ Stmt. Facts ¶ 55; Dart Stmt. Facts ¶ 41.) (emphasis added).
Despite the 2006 and 2008 General Orders and the Illinois statute, there is evidence in the
record that correctional officers shackled pregnant detainees Plaintiff Simone Jackson, who was
a MOMs participant, and Plaintiff Sheena Richardson, who was housed at the CCJ Complex, at
some point during labor, delivery, and/or recovery following delivery in May 2008 and
September 2008, respectively. (Pls.’ Stmt. Facts ¶¶ 14(c), 15, 17(a), (b), (c), 18, 20, 25(a), (b),
26, 28(b).) Also, the Superintendent of External Operations testified that until October 2008,
correctional officers shackled all detainees – whether they were from the MOMs program or the
CCJ Complex – at the hospital until the doctor informed the guards that the detainee was in
“active labor.” (Id. ¶ 22; Ex. 10, Holmes Dep., at 96-97.) Further, the Executive Director of the
Women’s Justice Services testified that in 2006 correctional officers used leg irons to secure
pregnant detainees to the bed frame while they were in the hospital to deliver their children. (Id.
¶ 15; Ex. 9, McDermott Dep., at 19-20.) The Superintendent of Administration also testified that
after 2008, correctional officers continued to shackle pregnant detainees who came from the CCJ
Complex while they were in the hospital to deliver their children. (Id. ¶ 23(b); Ex. 12, Hickerson
Dep, at 43.) Meanwhile, if there was no emergency or life threatening situation, the correctional
officer monitoring the detainee at the hospital was required to obtain a supervisor’s approval
before removing any such restraints. (Id. ¶¶ 19, 26.)
7

Both the 2006 and 2008 General Orders designated all detainees “who are transported,
housed or otherwise located outside of the CCDOC [Cook County Department of Corrections]
complex” as “high risk.” (Defs.’ Stmt. Facts ¶ 49; Dart Stmt. Facts ¶ 51.) Detainees who are
transported or housed at outside medical facilities are considered “high risk” because they are no
longer within the secured confines of the Cook County Jail, a lone correctional officer often
guards the detainees, they have exposure to the public and medical personnel, and they have
easier access to potential weapons. (Dart Stmt. Facts ¶ 51.) Moreover, numerous detainees have
attempted to escape while being transported to or from a hospital or while at a hospital, including
pregnant or postpartum detainees from the CCJ Complex and MOMs program. (Id. ¶ 52; Defs.’
Stmt. Facts ¶¶ 78-99.) Defendants, however, admit that women in the MOMs program are not
likely to be a flight risk and that detainees assigned to the MOMs program wear electronic
monitoring devices. (Pls.’ Stmt. Facts ¶¶ 5(d), 7.)
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute as to any material fact exists if “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, 2510, 91 L.Ed.2d 202 (1986). In determining summary judgment
motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,

8

323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted).
ANALYSIS
I.

Substantive Due Process Claim
In their Second Amended Complaint, the Class Plaintiffs allege a substantive due process

claim under the Fourteenth Amendment. More specifically, the Class Plaintiffs maintain that the
Sheriff’s shackling policy violates their due process right to their liberty interest in bodily
integrity because the use of restraints under the circumstances constitutes punishment.4 See Hart
v. Sheahan, 396 F.3d 887, 891 (7th Cir. 2005); May v. Sheahan, 226 F.3d 876, 884 (7th Cir.
2000); see also Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
Before the Court addresses Defendants’ argument that any such restraint policy was rationally
related to the CCJ’s legitimate penological interests in safety and security, the Court turns to the
official shackling policy at issue.
Although the 2006 and 2008 General Orders for External Operations – Hospital Policy
and Procedure – which applied to pregnant detainees housed outside of the CCJ Complex, stated
that “NO handcuffs, leg irons or waist chains shall be used on a female inmate (detainee) who is

4

In their opening brief, the Class Plaintiffs contend that the Sheriff’s policy amounts to a
deliberate indifference to a serious medical need. See Minix v. Canarecci, 597 F.3d 824, 830-31
(7th Cir. 2010). Plaintiffs, however, fail to properly develop this argument. See Clarett v.
Roberts, 657 F.3d 664, 674 (7th Cir. 2011) (“undeveloped arguments are considered waived”).
Indeed, since the beginning of this lawsuit, Plaintiffs have repeatedly characterized the Sheriff’s
policy as violative of their liberty interest in bodily integrity. (See, e.g., R. 23, 6/15/09 Motion
for Class Cert.; R. 173, 2/17/11 Rule 37 Motion to Bar.) Therefore, the Court addresses the
Class Plaintiffs’ claim as a Fourteenth Amendment freedom from bodily restraint claim. See
May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000).
9

in labor,” there is evidence in the record that correctional officers shackled pregnant detainees
from the MOMs program at some point during labor, delivery, and/or recovery following
delivery. Also, despite the Illinois statute forbidding the shackling of pregnant detainees in labor
who are detained at a county jail, there is also evidence in the record that correctional officers
shackled pregnant detainees assigned to the CCJ Complex while they were being transported to
the hospital and also during labor, delivery, and/or recovery following delivery. Indeed, the
Sheriff’s Office admits that it shackled pregnant detainees when they were being transported to
the hospital and were in pre-labor or post-delivery. (See R. 223, Defs.’ 6/15/11 Brief, at 8.) The
Sheriff’s Office, however, maintains that correctional officers did not shackle pregnant detainees
during “active labor,” although the 2006 and 2008 General Orders and the Illinois statute do not
distinguish between “labor” and “active labor.”
Accordingly, although the Sheriff’s official policy and Illinois statute forbid the use of
handcuffs, leg irons, or waist chains on pregnant detainees who are in labor, the Class Plaintiffs
maintain that the Sheriff’s Office had a widespread, unwritten practice of shackling pregnant
detainees in labor.5 As such, Plaintiffs’ argument must be viewed under the framework set forth
in Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978), because their official capacity claim against Sheriff Dart is a claim against the Sheriff’s
Office itself, and they are arguing that there is a widespread custom or practice of shackling
pregnant detainees during labor, delivery, and/or recovery following delivery. See Walker v.
Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (“Actions against individual defendants in their
official capacities are treated as suits brought against the government entity itself”); see also

5

See R. 131, Second Amend. Compl. ¶ 11.
10

Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 306 (7th Cir. 2010) (“Monell recognized
that the premise behind a § 1983 action against a government body is ‘the allegation that official
policy is responsible for the deprivation of rights.’”) (citation omitted) (emphasis in original).
Three types of policies or customs are recognized in this context:
(1) an express policy that, when enforced, causes a constitutional deprivation; (2)
a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law; or (3) an allegation that the constitutional injury was
caused by a person with final policy-making authority.
Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008) (citation omitted); see also Guzman
v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007).
Based on Plaintiffs’ arguments, the Court turns to whether there is evidence in the record
of “a widespread practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the force of law.”
Klebanowski, 540 F.3d at 637. To demonstrate that the Sheriff’s Office is liable for a harmful
custom or practice, the Class Plaintiffs must establish that policymakers for the Sheriff’s Office
were deliberately indifferent as to the known or obvious consequences of the unwritten shackling
policy. See Thomas, 604 F.3d at 303; Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir.
2008). “In other words, [the policymakers] must have been aware of the risk created by the
custom or practice and must have failed to take appropriate steps to protect the plaintiff.”
Thomas, 604 F.3d at 303; see also Montano, 535 F.3d at 570.
Plaintiffs have presented sufficient evidence raising a genuine dispute as to the material
fact that the Sheriff’s Office had a widespread practice of shackling pregnant detainees during
labor, delivery, and/or recovery following delivery and that policymakers were aware of the

11

custom or practice and did not take appropriate steps to protect the Class Plaintiffs. See Phelan
v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006) (“If the same problem has arisen many times
and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer
that there is a policy at work.”); Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995) (the
“usual way in which an unconstitutional policy is inferred, in the absence of direct evidence, is
by showing a series of bad acts and inviting the court to infer from them that the policymaking
level of government was bound to have noticed what was going on and by failing to do anything
must have encouraged or at least condoned, thus in either event adopting, the misconduct of
subordinate officers.”). More specifically, not only is there direct evidence in the record that
correctional officers shackled pregnant detainees Plaintiffs Simone Jackson and Sheena
Richardson at some time during labor, delivery, and/or recovery following delivery, CCJ
policymakers testified about the shackling policy. See Waters v. City of Chicago, 580 F.3d 575,
582 (7th Cir. 2009) (a policymaker sets or adopts rules of conduct not merely implements preexisting rules). Specifically, the policymakers testified as follows: (1) the Superintendent of
External Operations stated that until October 2008, correctional officers shackled pregnant
detainees – whether they were from the MOMs program or the CCJ Complex – at the hospital
until the doctor informed the guards that the detainee was in “active labor;” (2) the Executive
Director of the Women’s Justice Services testified that in 2006 correctional officers used leg
irons to secure pregnant detainees to the bed frame while they were in the hospital to deliver
their children; and (3) the Superintendent of Administration testified that after 2008, correctional
officers continued to shackle pregnant women who came from the CCJ Complex while they were
in the hospital to deliver their children. As such, there is a genuine dispute as to the material fact

12

that policymakers knew of the shackling policy and did not take steps to protect the Class
Plaintiffs. On the other hand, construing the facts and all reasonable inferences in favor of the
Sheriff’s Office, the Class Plaintiffs have not presented sufficient evidence establishing that
there is no genuine dispute as to any material fact and that they are entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(a).
The Court now turns to the Sheriff’s argument that this restraint policy was rationally
related to the CCJ’s legitimate penological interest in safety and security. In general, conditions
of confinement that are reasonably related to a legitimate and non-punitive governmental
objective are not unconstitutional. See Board v. Farnham, 394 F.3d 469, 477 (7th Cir. 2005);
Murphy v. Walker, 51 F.3d 714, 718 (7th Cir. 1995).6 The Seventh Circuit explains that in “Bell
v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court said that the
proper question to guide determination of the constitutionality of restrictive conditions in pretrial
detention was ‘whether those conditions amount to punishment of the detainee.’” Hart, 396 F.3d
at 891 (quoting Wolfish, 441 U.S. at 535). “The use of bodily restraints constitutes punishment
in the constitutional sense if their use is not rationally related to a legitimate non-punitive
government purpose or they appear excessive in relation to the purpose they allegedly serve.”

6

The Sheriff’s Office argues that Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987), and its progeny are the controlling legal authority. Turner and its progeny,
however, concern prison regulations most often in the context of convicted prisoners’ First
Amendment rights. See, e.g., Van den Bosch v. Raemisch 658 F.3d 778, 785 (7th Cir. 2011);
Vinning-El v. Evans, 657 F.3d 591, 592-93 (7th Cir. 2011). As far as restrictive conditions of
confinement as applied to pretrial detainees under the Fourteenth Amendment are concerned, the
Seventh Circuit has relied upon Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979), applying this standard in the context of shackling policies similar to the one at issue
in this lawsuit. See May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000); Murphy v. Walker, 51
F.3d 714, 717-18 (7th Cir. 1995). The Court therefore follows the Supreme Court’s decision in
Wolfish and the Seventh Circuit’s decisions in May and Murphy.
13

May, 226 F.3d at 884. As the Hart decision clarifies, pretrial detainees, as well as convicted
prisoners, have “an interest in being free from gratuitously severe restraints and hazards, while
the detention facility has an interest in protecting the safety of detainees and guards and
preventing escapes.” Id. at 893.
Evidence in the record reveals that the External Operations Division has approximately
345 correctional officers who are responsible for the transfer of 3,000 to 4,000 detainees to
medical facilities located outside of the CCJ Complex each year. (Defs.’ Stmt. Facts ¶ 14.)
These medical facilities include at least three county hospitals and numerous medical clinics.
(Id. ¶ 15.) Also, the vast majority of the pregnant detainees from either the CCJ Complex or the
MOMs program deliver their children at Stroger Hospital, which is a 1.2 million square foot
medical facility at which 300,000 patients are treated annually. (Id. ¶¶ 16, 17.) There is also
undisputed evidence in the record that detainees have attempted to escape while being
transported to or from the hospital or while at the hospital, including pregnant detainees. The
Sheriff’s Office admits, however, that women in the MOMs program are not likely to be a flight
risk and that detainees assigned to the MOMs program wear electronic monitoring devices,
although the Sheriff’s Office does not admit that pregnant detainees transported from the CCJ
Complex are not a flight risk. Finally, there is evidence in the record that at least one
correctional officer would accompany pregnant detainees housed at the CCJ Complex while in
transit to the hospital and that correctional officers guard all detainees at the outside medical
facilities.
Construing these facts and all reasonable inferences in the Class Plaintiffs’ favor, there is
sufficient evidence in the record raising a genuine dispute as to the material fact that the

14

shackling policy was rationally related to the non-punitive purpose of protecting the safety of
hospital staff and correctional officers, as well as preventing escapes – based on the amount of
detainees the Sheriff’s Office guards in transit and at the outlying medical facilities, as well as
the previous escape attempts. See Wolfish, 441 U.S. at 546 (“maintaining institutional security
and preserving internal order and discipline” are central goals of prison administration). In
short, the Sheriff’s Office has presented sufficient evidence raising a genuine issue of fact that
the shackling policy was not arbitrary, purposeless, or gratuitous, but was related to a nonpunitive, administrative purpose. See Wolfish, 441 U.S. at 539; Hart, 396 F.3d at 892; Antonelli
v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). The Sheriff’s Office, however, has not
presented sufficient evidence to establish that there is no genuine dispute as to any material facts
under the circumstances and that they are entitled to judgment as a matter of law – especially
because the parties hotly dispute the extent to which the shackling policy was enforced in the
first instance. See Fed.R.Civ.P. 56(a). Because genuine disputes of material facts exist in
relation to the Class Plaintiffs’ substantive due process claim, the Court denies the parties’ crossmotions for summary judgment as to this claim.
II.

State Law Negligence Claim
In the Second Amended Complaint, the Class Plaintiffs also allege that the shackling

policy is “in willful and wanton disregard of the laws of the State of Illinois.” (R. 131, Second.
Am. Compl. ¶ 8.) The Class Plaintiffs’ state law claim sounds in negligence based on the
Sheriff’s alleged violation of the Illinois statute that forbids shackling pregnant prisoners in
labor. See Calloway v. Kinkelaar, 168 Ill.2d 312, 319-20, 213 Ill.Dec. 675, 659 N.E.2d 1322
(Ill. 1995). As the Supreme Court of Illinois has recognized, “tort liability may arise, on public

15

policy grounds, for tortious conduct that would defeat the aims and goals of a particular statutory
scheme” if the statute “was designed to protect human life or property.” Id. at 319; see also
Camp v. TNT Logistics Corp., 553 F.3d 502, 506 (7th Cir. 2009) (“a violation of a statute or
ordinance designed to protect human life or property is prima facie evidence of negligence; the
violation does not constitute negligence per se.”). To clarify, if “the plaintiff is a member of the
protected class and his or her injury is of the type that the statute was intended to protect against,
the plaintiff may recover upon establishing that the defendant’s violation of the ordinance or
statute proximately caused plaintiff’s injury.” Calloway, 168 Ill.2d at 319. Accordingly, to
“recover damages based upon a defendant’s alleged statutory violation, a plaintiff must show
that (1) she belongs to the class of persons that the statute was designed to protect; (2) her injury
is of the type that the statute was designed to prevent; and (3) the violation proximately caused
her injury.” First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 256, 242 Ill.Dec. 113,
720 N.E.2d 1068 (Ill. 1999); see also Camp, 553 F.3d at 506.
Instead of addressing the Class Plaintiffs’ state law negligence claim under this
framework, the Sheriff’s Office argues that Plaintiffs cannot establish a state-created liberty
interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). See
Thielman v. Leean, 282 F.3d 478, 480 (7th Cir. 2002) (“Liberty interests can arise from two
sources: the Federal Constitution or state law.”). As discussed above, Plaintiffs’ Fourteenth
Amendment substantive due process claim is based on their liberty interest in bodily integrity,
see Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997),
while their state law claim is a negligence claim based on the Sheriff’s alleged violation of the
Illinois statute forbidding the shackling of pregnant prisoners during labor. See Calloway, 168

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Ill.2d at 319-20. Therefore, the Sheriff’s arguments based on Sandin are misplaced.
The Sheriff’s Office also contends that the Class Plaintiffs’ state law negligence claim is
barred by the one-year limitations period set forth in section 8-101(a) of the Illinois Local
Government and Governmental Employees Tort Immunity Act. See 745 ILCS 10/8-101(a). The
Sheriff’s Office, however, failed to raise this affirmative defense in the Answer to the Second
Amended Complaint and brings this argument for the first time in the present summary judgment
motions. The Sheriff’s failure to plead this affirmative defense in the Answer – and the fact that
the Sheriff’s Office did not bring this defense until the summary judgment stage of these
proceedings – amounts to waiver of the statute of limitations defense, especially because the
Sheriff’s Office offers no cogent justification for the delay. See Walker, 526 F.3d at 979. The
Court thus turns to the Class Plaintiffs’ negligence claim.
Here, the Class Plaintiffs have presented sufficient evidence creating a genuine dispute as
to the material fact that they belong to the class of persons that the anti-shackling statute was
designed to protect, namely, pregnant detainees in labor. Indeed, as Representative William
Black stated at the Illinois General Assembly, House of Representatives debate on March 10,
1999: “[I]t’s kind of ludicrous, as you say, to think that the woman in labor is going to jump off
the bed and run out of the hospital.” (Pls.’ Stmt. Facts ¶ 35.) Moreover, the Class Plaintiffs’
injuries associated with their shackling are the type of injuries the Illinois statute is designed to
prevent, including the strain on the unborn child and the mother. (Id., Ex. 1, 3/10/99 Illinois
General Assembly debate, at 2-3.) Based on the evidence in the record, a reasonable juror could
infer that the Sheriff’s alleged violation of the statute proximately caused the Class Plaintiffs’
injuries. See Rivera v. Garcia, 401 Ill.App.3d 602, 613, 340 Ill.Dec. 224, 927 N.E.2d 1235 (1st

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Dist. 2010) (“The injury must be the natural and probable result of the negligent act or
omission”) (citation omitted).
Because the Sheriff’s Office is a local public entity, however, there is an extra layer of
analysis required under the Illinois Local Government and Governmental Employees Tort
Immunity Act. See 745 ILCS 10/1-101, et seq. Specifically, in “order to protect public funds
from being dissipated by damage awards in tort cases, the Local Government and Governmental
Employees Tort Immunity Act was enacted to shield local public entities and public employees
from liability for ordinary negligence committed during the exercise of their duties.” Mitchell v.
Special Educ. Joint Agreement Sch. Dist. No. 208, 386 Ill.App.3d 106, 111, 325 Ill.Dec. 104, 897
N.E.2d 352 (1st Dist. 2008) (internal citation omitted). Section 2-202 of the Tort Immunity Act
states that a “public employee is not liable for his act or omission in the execution or
enforcement of any law unless such act or omission constitutes willful and wanton conduct.”
See 745 ILCS 10/2-202. The Tort Immunity Act defines willful and wanton conduct as:
[A] course of action which shows an actual or deliberate intention to cause harm
or which, if not intentional, shows an utter indifference to or conscious disregard
for the safety of others or their property. This definition shall apply in any case
where a “willful and wanton” exception is incorporated into any immunity under
this Act.
745 ILCS 10/1–210; see also Tagliere v. Western Springs Park Dist., 408 Ill.App.3d 235, 24142, 348 Ill.Dec. 643, 944 N.E.2d 884 (1st Dist. 2011).
As discussed above, certain policymakers at the Sheriff’s Office, namely, the
Superintendent of External Operations, the Executive Director of the Women’s Justice Services,
and the Superintendent of Administration, acknowledged that pregnant detainees from both the
MOMs program and the CCJ Complex were shackled at some point during labor, delivery,

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and/or recovery following delivery. Although these individuals were aware of the shackling of
pregnant detainees in labor, there is no evidence in the record that they took any action to change
the practice or to comply with the Illinois statute that became effective on January 1, 2000.
Based on this evidence, a reasonable juror could infer that these policymakers consciously
disregarded the pregnant detainees’ and their infants’ health when delivering. (See Pls.’ Stmt.
Facts ¶¶ 32, 33.) Therefore, there are genuine disputes of material fact in regard to the Class
Plaintiffs’ negligence claim based on the Illinois statute forbidding the shackling of pregnant
prisoners in labor. The Court thus denies the parties’ cross-motions for summary judgment as to
the Class Plaintiffs’ state law negligence claim.
III.

Individual Capacity Claim
Last, the Individual Plaintiffs assert that Sheriff Dart, in his individual capacity, had

actual knowledge of the practice of shackling pregnant detainees during labor, delivery, and/or
recovery following delivery and that Sheriff Dart took more than one year in taking remedial
action after he learned of the shackling policy.
In his summary judgment motion, Sheriff Dart contends that the Individual Plaintiffs
have failed to present sufficient evidence establishing a genuine dispute as to his personal
involvement in the practice of shackling pregnant detainees in labor. “[I]ndividual liability
under § 1983 requires ‘personal involvement in the alleged constitutional deprivation.’” Minix v.
Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010) (quoting Palmer v. Marion County, 327 F.3d
588, 594 (7th Cir. 2003)); see also Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009). It is well
settled that “Section 1983 creates a cause of action based on personal liability and predicated
upon fault; thus, liability does not attach unless the individual defendant caused or participated in

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a constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996); see also
Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (“A plaintiff bringing a civil rights
action must prove that the defendant personally participated in or caused the unconstitutional
actions.”) (citations omitted). Moreover, “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Instead, a government
official satisfies the personal responsibility requirement if the conduct causing the alleged
constitutional deprivation occurs at the official’s direction or with his knowledge and consent.
See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011).
While there is undisputed evidence in the record that Sheriff Dart was aware of the 2006
and 2008 General Orders that stated: “NO handcuffs, leg irons or waist chains shall be used on a
female inmate (detainee) who is in labor, this includes while being transported to a medical
facility,” the parties dispute whether Sheriff Dart knew of the unwritten practice of shackling
pregnant detainees during labor, delivery, and/or recovery following delivery during the relevant
time period. Specifically, Sheriff Dart asserts that he was unaware of the specific, day-to-day
procedures the correctional officers used in restraining pregnant detainees – as supported by
numerous Rule 30(b)(6) witnesses’ deposition testimony. (Dart Stmt. Facts ¶¶ 48, 62, 63; R.
248, Dart Add’l Stmt. Fact ¶ 1.) On the other hand, citing to their Local Rule 56.1(b)(3)(C)
Additional Statement of Facts, the Individual Plaintiffs maintain that because Sheriff Dart had
personal involvement in many aspects of running the Cook County Jail, a reasonable juror could
infer that Sheriff Dart had knowledge of how correctional officers restrained pregnant detainees
in labor. The Individual Plaintiffs, however, did not file a Local Rule 56.1(b)(3)(C) Additional

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Statement of Facts in which they supposedly presented evidence of comments made in a press
release, “internet admissions,” and articles on www.huffingtonpost.com, among other
statements. See United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.
2010) (“summary judgment may only be defeated by pointing to admissible evidence in the
summary judgment record that creates a genuine issue of material fact.”). In sum, the Individual
Plaintiffs do not “set forth specific facts showing that there is a genuine issue for trial,” see
Anderson, 477 U.S. at 255, but only offer speculative arguments – not based on evidence – to
support their claim that Sheriff Dart had knowledge and was personally involved in the shackling
policy. See Truhlar v. United States Postal Serv., 600 F.3d 888, 893 (7th Cir. 2010)
(“unsupported speculation is insufficient to overcome a motion for summary judgment.”). The
Court therefore grants Sheriff Dart’s motion for summary judgment as to the individual capacity
claim.
CONCLUSION
For the these reasons, the Court denies the parties’ cross-motions for summary judgment
as to the Class Plaintiffs’ official capacity claim and state law negligence claim. The Court
grants Sheriff Dart’s motion for summary judgment as to the individual capacity claim. Because
the Court addressed Defendants’ objections to Plaintiffs’ Local Rule 56.1(b)(3)(B) Responses in
the context of each fact, the Court denies Defendants’ motion to strike as moot. The Court also
denies Plaintiffs’ conditional motion to defer Defendant Dart’s individual capacity claim
summary judgment motion as moot.
Date: December 20, 2011
ENTERED

_______________________________
AMY J. ST. EVE
United States District Court Judge
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