Beley et al v. City Of Chicago

Filing 182

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/28/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL BELEY AND
DOUGLAS MONTGOMERY,
individually and for a class,

Case No. 12-cv-9714

Plaintiffs,
v.

Judge John Robert Blakey

CITY OF CHICAGO,
Defendant.
MEMORANDUM OPINION AND ORDER
On December 6, 2012, Plaintiffs Michael Beley and Douglas Montgomery,
homeless sex offenders residing in the City of Chicago, filed suit against the city on
behalf of themselves and a putative class of other homeless sex offenders. Plaintiffs
alleged that Defendant’s sex offender registration procedures, as applied to
homeless offenders, violated: (1) procedural due process (Count I); (2) equal
protection (Count II); (3) freedom of intimate association (Count III); and (4) the
Illinois Sex Offender Registration Act (Count IV). On February 17, 2015, the Court
dismissed Counts II and III with prejudice.

Mem. Op. and Order [112].

December 7, 2015, the Court certified the following class:
All persons who attempted to register under the Illinois
Sex Offender Registration Act with the City of Chicago
from December 6, 2010 to the date of entry of judgment
and who were not permitted to register because they were
homeless.

On

Mem. Op. and Order [126] 15. The Court designated Plaintiffs Michael Beley and
Douglas Montgomery as the class representatives. Id.
On September 20, 2016, Defendant moved for summary judgment on
Plaintiffs’ two remaining claims. Def.’s Mot. Summ. J. [159]. On October 20, 2016,
Plaintiffs cross-moved for partial summary judgment on Count I on the issue of
liability. Pls.’ Mot. Summ. J. [164]. For the reasons stated below, Defendant’s
motion [159] is granted; Plaintiffs’ motion [164] is denied.
I.

Background
A.

The Illinois Sexual Offender Registration Act

In Illinois, individuals convicted of certain sexual crimes must comply with
rigorous reporting requirements under the Illinois Sexual Offender Registration Act
(“SORA”), 730 ILCS 150/1 et seq.

Sex offenders must provide law enforcement

comprehensive biographical information, including, inter alia:
current address, current place of employment . . .
telephone number, including cellular telephone number,
the employer’s telephone number, school attended, all email addresses, instant messaging identities, chat room
identities, and other Internet communications identities
that the sex offender uses or plans to use, all Uniform
Resource Locators (URLs) registered or used by the sex
offender, all blogs and other Internet sites maintained by
the sex offender or to which the sex offender has uploaded
any content or posted any messages or information . . . a
copy of the terms and conditions of parole or release
signed by the sex offender and given to the sex offender by
his or her supervising officer or aftercare specialist, the
county of conviction, license plate numbers for every
vehicle registered in the name of the sex offender, the age
of the sex offender at the time of the commission of the
offense, the age of the victim at the time of the

2

commission of the offense, and any distinguishing marks
located on the body of the sex offender.
730 ILCS 150/3(a).
Registration is made in person with the municipality in which the offender
“resides or is temporarily domiciled for a period of time of 3 or more days.” Id. at
150/3(a)(1).

At the time of registration, the offender must provide “positive

identification” and “documentation that substantiates proof of residence at the
registering address.” Id. at 150/3(c)(5). To register, an offender must also provide a
current photograph, and may be required to provide fingerprint, blood, saliva, or
tissue specimens. Id. at 150/8.
Following an offender’s initial registration, SORA further imposes extensive
update requirements.

If an offender is temporarily absent from his registered

address for three or more days, for example, he must notify law enforcement and
provide his travel itinerary. Id. Similarly, an offender must report, in person,
within three days of beginning school, establishing a new residence, or obtaining or
changing employment.

Id. at 150/3(b), (d).

If an offender starts attending an

institution of higher education, he must not only register with the police
department in the jurisdiction where the school is located, but also the school’s
public safety or security director. Id. at 150/3(a)(i)-(ii).
Aside from these specific reporting events, an offender must reregister at
least annually, and the registering law enforcement agency may require him to
appear, upon request, up to four more times per year. Id. at 150/6. Additionally,
the offender is required to pay a $100 initial registration fee and a $100 annual
3

renewal fee (although the registering agency may waive the registration fee if it
determines that the person is indigent and unable to pay). Id. at 150/3(c)(6).
Penalties for violating SORA are severe. Failure to register constitutes a
Class 3 felony punishable by two to five years imprisonment. 730 ILCS at 150/10;
730 ILCS 5-4.5-40. Subsequent failures constitute Class 2 felonies punishable by
three to seven years imprisonment.

730 ILCS 150/10; 730 ILCS 5-4.5-35.

Moreover, in addition to any other penalty required by law, SORA mandates a
minimum period of seven days’ confinement in the local county jail and minimum
fine of $500. 730 ILCS 150/10. Finally, a SORA violation will extend an offender’s
mandatory registration period by ten years. Id. at 150/7.
B.

Registration Within the City of Chicago 1,

2

All sex offender registrations for Chicago residents occur with the Criminal
Registration

Section

(“CRS”)

at

the

Chicago

Police

Department

(“CPD”)

headquarters. DSOF [161] ¶ 6; PSOF [166] ¶ 1. When an offender arrives at CPD
Case facts are taken from the parties’ Local Rule 56.1 statements and accompanying exhibits.
“DSOF” refers to Defendant’s statement of undisputed facts [161], with Plaintiffs’ responses [163]
cited as “R. DSOF.” “PSOF” refers to Plaintiffs’ Local Rule 56.1 Statement of Facts [166], with
Defendant’s responses [172] cited as “R. PSOF.”
1

Defendant, citing Federal Rule of Civil Procedure 32(a)(8), objects to multiple Plaintiffs’ exhibits on
the grounds that they memorialize in-court and deposition testimony elicited in separate cases
brought against the City of Chicago. R. PSOF [172] 2. Defendant argues that the issues raised in
those cases were dissimilar from the issues raised here. Id.; see Fed. R. Civ. P. 32(a)(8) (requiring
“the same subject matter between the same parties”). In a “proper case,” however, “depositions from
one case may be used at the summary judgment stage of another, even if Rule 32(a)(8)’s
requirements are not met.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014).
Under Alexander, “two conditions must be met for a case to be proper.” Id. First, the deposition
“must satisfy Rule 56’s requirements for an affidavit or declaration—i.e., the testimony is based on
personal knowledge and sets out facts that would be admissible at trial, and the deponent is
competent to testify on these matters.” Id. (citing Fed. R. Civ. P. 56(c)(4)). Second, the depositions
from the other case “must be part of ‘the record’ in the present case.” Id. (citing Fed. R. Civ. P.
56(c)(1)(A)). Both requirements are met here. Defendant’s objection, therefore, is overruled; the
Court will consider Plaintiffs’ contested exhibits.
2

4

headquarters, a registering official—typically a CPD officer—determines whether
the offender satisfies SORA’s myriad requirements, including those related to
positive identification, proof of residence, and registration fees. PSOF [166] ¶ 18. If
an offender satisfies SORA’s prerequisites, he is registered; if not, he is turned
away. CRS maintains a daily “Criminal Registration Log” that documents each
registration attempt.

In cases where an offender is denied registration, the

registering official memorializes the reason for denial on the Criminal Registration
Log in a box labeled, “Reason For Being Turned Away.” See, e.g. PSOF [166] Ex. 2.
C.

SORA and Homelessness

The

word

“homeless”

does

not

appear

in

SORA’s

statutory

text.

Notwithstanding SORA’s demand for an offender’s “current address” (and
supporting documentation thereof), however, the statute does allow registration of
offenders without a “fixed residence.”

730 ILCS 150/3(a).

“Fixed residence” is

defined as any place that a sex offender resides for an aggregate period of time of
five or more days in a calendar year. Id. at 150/2(I). Offenders without a “fixed
residence” must report to their registering agency in person on a weekly basis. 730
ILCS 150/3(a). The registering agency must document each weekly registration,
including each location where the person stayed during the past seven days. Id.
Plaintiffs allege that, despite this statutory exception, Defendant improperly
engaged in a policy or widespread practice of refusing to permit homeless offenders
to register every seven days. Second Am. Compl. [46]. The evidence offered by
Plaintiffs is detailed below.

5

1.

Class Representative Michael Beley

Class representative Michael Beley, a resident of Chicago, was convicted of a
sexual crime requiring him to register as a child sex offender under SORA. DSOF
[161] ¶ 1. At his deposition, Beley testified to the following: on November 19, 2012,
Beley was released from Taylorville Correctional Center and spent the night “on the
streets” of Chicago.

DSOF [161] ¶ 11; PSOF [166] ¶ 3.

On the morning of

November 20, 2012, Beley reported to CPD headquarters to complete his sex
offender registration. DSOF [161] Ex. 6; PSOF [166] ¶ 3. Upon arrival, Beley was
informed by Officer Christopher Meaders that he required “an ID with a fixed
address” in order to register. DSOF [161] Ex. 2 at 39:14-15; PSOF [166] Ex. 5.
Beley did not possess an identification card with a fixed address. DSOF [161] Ex. 2
at 39:21-40:20. As a result, Beley was not registered. Id. at 40:21-41:6. In the CRS
Criminal Registration Log, Officer Meaders notated Plaintiff’s “Reason For Being
Turned Away” as “PROOF OF ADD.” DSOF [161] Ex. 6.
Beley attempted to register again on November 23, 2012. PSOF [166] ¶ 5.
Once again, Beley was denied, although Beley did not testify to the specific reason
for his rejection. Id.; DSOF [161] Ex. 2. The parties agree, however, that CPD
officers directed Beley to potential shelter options. PSOF [166] ¶ 5. The Criminal
Registration Log for that day notes the “Reason For Being Turned Away” as “NO
ID/REF SHELT.” PSOF [166] Ex. 2.
Between November 23, 2012 and November 28, 2012, Beley obtained a state
identification card displaying his son’s Chicago address. DSOF [161] ¶ 12. On

6

November 28, 2012, Beley attempted to register for a third time.

Id.

Officer

Meaders denied Beley’s registration because his son’s address fell within 500 feet of
a school, park, or playground.

Id.; see 720 ILCS 5/11-9.3 (prohibiting child sex

offenders from knowingly residing within 500 feet of a school building, public park,
playground, child care institution, or day care center).

Officer Meaders wrote

“ZONE” in the Criminal Registration Log. DSOF [161] Ex. 7.
Throughout this time, Beley remained homeless.

DSOF [161] ¶ 13.

Sometime during the week of December 3, 2012, Beley was classified as “noncompliant” on the Illinois State Police sex offender website. PSOF [166] Ex. 1 ¶ 18.
On December 6, 2012, Beley secured a spot at a homeless shelter at 200
South Sacramento Boulevard.

DSOF [161] ¶ 13.

On December 7, 2012, Beley

obtained a state identification card with the shelter address. Id. Beley successfully
registered at CPD headquarters on December 11, 2012. PSOF [166] Ex. 1 ¶ 19.
Between December 2012 and December 2013, Beley resided on a nightly
basis at the shelter at 200 South Sacramento Boulevard. See DSOF [161] ¶¶ 13-14.
Beley left the shelter in January 2014 after it was declared off limits to child sex
offenders. Id. ¶ 15. Since his eviction, however, Beley has successfully registered at
CPD headquarters on a weekly basis as an offender without a fixed residence. Id.;
DSOF [161] Ex. 2 at 73:3-74:3.
2.

Class Representative Douglas Montgomery

Class representative Douglas Montgomery, also a resident of Chicago, has
also been convicted of a sexual crime requiring him to register under SORA. DSOF

7

[161] ¶ 2. Montgomery was last released from confinement on January 21, 2011.
Id. ¶ 16. At the time of his release, Montgomery signed a SORA Notification Form
acknowledging his duty to register within three days of his discharge. PSOF [166]
Ex. 4. The Notification Form included fill-in boxes for biographical information,
including Montgomery’s resident address upon release.

Id.

Montgomery’s

Notification Form specifically listed his intended resident address as “HOMELESS”
in the City of Chicago. Id.
On January 27, 2011, Montgomery went to CPD headquarters to register as a
sex offender. 3 PSOF [166] ¶ 10. Montgomery testified at his deposition that, upon
arrival, he gave Officer Eric Chapman his Notification Form listing his resident
address as “HOMELESS.” DSOF [161] Ex. 9 at 73:15-23, 75:14-15. Montgomery
further testified that Officer Chapman asked Montgomery where he was living, and
Montgomery replied, “I am homeless, I [have] been homeless for a long time.” Id. at
74:13-15. Montgomery testified that the official informed him that CPD was “not
registering homeless people right now” and that Montgomery needed a “fixed
address” and an identification card, as well as the $100 registration fee. Id. at
74:15-19, 76:12-21. Montgomery departed CPD headquarters and did not return.
DSOF [161] ¶ 20.

In the Criminal Registration Log, Officer Chapman notated

Montgomery’s “Reason For Being Turned Away” as “NEEDS ADDRESS.” DSOF

Between January 22, 2011 and January 27, 2011, Montgomery was hospitalized for reasons not
relevant to the pending motions. PSOF [164] Ex. 9.

3

8

[161] Ex. 10. 4 In July 2011, Montgomery was arrested and charged with a SORA
violation. DSOF [161] ¶ 20.
3.

Members of Certified Class

In addition to the depositions of the class representatives, the record before
the Court contains affidavits from five other members of the certified class: Adarryll
Kelly, Charles Mowder, James McDonald, Kenneth Williams, and Henry Hartage.
PSOF [166] Ex. 6 at 7-10; Pls.’ Mot. Certify Class [117] Ex. 4. Kelly states that in
November 2010 and on October 29, 2013, he went to CPD headquarters to register
as homeless, but was told by a registering official that homeless registration was
not permitted. PSOF [166] Ex. 6 at 8. Kelly further states, however, that he did
successfully register as homeless at CPD headquarters on October 22, 2013. Id.
Mowder alleges that he was denied homeless registration “in an around 2010.” Id.
at 9. McDonald claims that he was denied homeless registration in March 2012.
Id. at 10.

Williams did successfully register as homeless on November 1 and

November 8, 2013, but was allegedly denied homeless registration on November 15,
2013. Pls.’ Mot. Certify Class [117] Ex. 4. Hartage states that he was instructed by
a CRS representative in September 2012 that he would be compliant with SORA if
he stayed at the 200 South Sacramento shelter. Id. at 7.

Montgomery’s actual name does not appear on the January 27, 2011 Criminal Registration Log;
rather, Montgomery was recorded under the name “Douglas McArthur.” DSOF [161] Ex. 10. The
parties do not dispute, however, that the entry applies to Montgomery. See DSOF [161] ¶ 18; PSOF
[164] ¶ 10.

4

9

4.

Other Purported Evidence

Plaintiffs also point to other specific entries in the Criminal Registration
Logs as further instances of CRS refusing to permit homeless offenders to register
without a fixed residence:
Name of Offender
Albert Bingham

Date of Attempted
Registration
April 18, 2011

Davin Tangrio
Jemiah Gholson
Johnathan Collantes
Eric Flowers
Sean Messer
Keith Frierson
Arthur Jones

May 13, 2011
January 7, 2012
April 2, 2012
March 27, 2012
May 15, 2012
June 29, 2012
August 15, 2012

Eric Williams
Dwight Barkley
John Trotter
Timothy Downs

September 14, 2012
October 24, 2012
October 31, 2012
January 28, 2013

“Reason For Being Turned Away”
ID HAS WRONG ADDRESS NO
PROOF ADD
HOMLESS [sic] – NEEDS ID
NEEDS ID
PROOF OF ADD
BAD ADD
NEEDS ID/HOMELESS
NEEDS ID
HOMELESS SHLTR NO PROOF
ADD
NO PROOF ADD
NEEDS ID SHELTER
HOMELESS/REF TO SHL
NEEDS PROOF ADD

PSOF [166] ¶¶ 36-44. Plaintiffs highlight that, shortly after their denial, eight of
these offenders 5 obtained identification cards reflecting an address of 200 South
Sacramento. Id. Almost immediately thereafter, they successfully registered at
CPD headquarters. Id. Defendant does not dispute these Criminal Registration
Log entries, but denies that they prove denial of homeless registration. R. PSOF
[172] ¶ 42.
In addition to these specific instances, Plaintiffs cite general statistics
derived from Criminal Registration Logs over time. Plaintiffs claim that, overall,
the logs show that “few people were registered as lacking a fixed residence at the
5

Bingham, Collantes, Downs, Flowers, Frierson, Gholson, Messer, and Williams.

10

time of registration,” while CRS “routinely turned away sex offenders for failure to
provide proof of address and for lack of identification.” Pls.’ Mot. Summ. J. [164] 5.
Plaintiffs also allege that the overall number of sex offenders who registered
without a fixed residence dramatically increased after June 2014, when CRS
stopped

requiring

government

issued

identification

to

establish

positive

identification. Id. at 6; see 730 150/3(c)(5). According to Plaintiffs, 378 offenders
were registered as homeless as of February 13, 2017. Pls.’ Mot. Supp. Summ. J.
Briefing [176].
Finally, at all times relevant to the present litigation, Sergeant Philip Jones
served as Commanding Officer of CRS. PSOF [166] Ex. 11 at 7:22-8:5. During a
deposition in a separate case, Jones testified that “every” registering sex offender
“needs a proof of address.” PSOF [166] Ex. 11 at 241:6-7. Jones also testified that a
“threshold question for every individual who registered,” was that they “must have
a government-issued ID in order to prove they reside in Chicago.” PSOF [166] Ex. 3
at 122:3-6. In the present litigation, however, Jones testified that this policy does
not apply to individuals lacking a fixed address. See, e.g. PSOF [166] Ex. 16 at
18:11-18.
II.

Legal 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that

11

a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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, 323 (1986). A court “is not
required to grant summary judgment as a matter of law for either side when faced
with cross-motions for summary judgment.” Crespo v. Unum Life Ins. Co. of Am.,
294 F. Supp. 2d 980, 991 (N.D. Ill. 2003) (citing Market St. Assocs. Ltd. P’ship v.
Frey, 941 F.2d 588, 590 (7th Cir. 1991)). Rather, the court must “evaluate each
motion on its merits, resolving factual uncertainties and drawing all reasonable
inferences against the movant.” Id.
III.

Analysis
Two causes of action from Plaintiffs’ Second Amended Complaint [46] are still

before the Court: (1) violations of Plaintiffs’ procedural due process rights under 42
U.S.C. § 1983 (Count I); and (2) violations of SORA (Count IV). Defendant moves
for summary judgment on both counts. Def.’s Mot. Summ. J. [159]. In response,
Plaintiffs “acquiesce in judgment on their state law claim.” Pls.’ Mot. Summ. J.
[164]. As a result, Defendant’s Motion for Summary Judgment [159] is granted as it
relates to Count IV, leaving Count I as Plaintiffs’ sole remaining claim.
Plaintiffs not only contest Defendant’s motion as it relates to Count I, but
contend that they are entitled to summary judgment as to liability. Id. The parties
levy multiple arguments in support of their respective motions. The Court’s ruling,
however, turns upon one dispositive issue: whether Plaintiffs present sufficient

12

evidence of a “policy” or “custom” on the part of Defendant to support municipal
liability.
Under the Supreme Court’s ruling in Monell v. New York City Dep’t of Social
Services, 436 U.S. 658, 690-91 (1978), although a local governmental unit is subject
to suit under 42 U.S.C. § 1983, respondeat superior will not suffice to impose
liability.

McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).

The

municipality’s policy, not employees, must be the source of the discrimination. Id.;
Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992) (“Municipalities are answerable
only for their own decisions and policies; they are not vicariously liable for the
constitutional torts of their agents.”). In other words, “a municipality can be liable
under Section 1983 only for acts taken pursuant to its official policy, statement,
ordinance, regulation or decision, or pursuant to a municipal custom.” Mootye v.
Dotson, 73 F. App’x 161, 171 (7th Cir. 2003); Rice ex rel. Rice v. Corr. Med. Servs.,
675 F.3d 650, 675 (7th Cir. 2012) (“Municipal liability under § 1983 attaches
where—and only where—a deliberate choice to follow a course of action is made
from among various alternatives by municipal policymakers.”) (quotations omitted).
An official policy or custom may be established by means of: (1) an express
policy; (2) a widespread practice which, although unwritten, is so entrenched and
well-known as to carry the force of policy; or (3) the actions of an individual who
possesses the authority to make final policy decisions on behalf of the municipality
or corporation. Rice, 675 F.3d at 675; Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d
293, 303 (7th Cir. 2010). Here, the parties do not argue a constitutional deprivation

13

by a person with final decision-making authority. Instead, they focus upon the
“express policy” and “widespread practice” prongs of Monell’s municipal liability
test. See Pls.’ Mem. Supp. Mot. Summ. J. [165] 1 (“Plaintiffs challenge the Chicago
Police Department’s express policy to deny registration . . . to persons lacking a fixed
residence or a widespread practice that produced an equivalent result.”) (emphasis
added). Therefore, to survive summary judgment, Plaintiffs must demonstrate a
genuine issue of material fact that the City of Chicago had a policy or custom of
denying SORA registration to sex offenders merely because they lacked a fixed
residence at the time of registration.
The express policy theory applies, as the name suggests, “where a policy
explicitly violates a constitutional right when enforced.” Calhoun v. Ramsey, 408
F.3d 375, 379 (7th Cir. 2005). The Calhoun court provided the following example:
[I]f [a county jail] had a policy that directed the sheriff’s
personnel to throw away all prescription medications
brought in by detainees or prisoners without even reading
the label and without making alternative provisions for
the affected individuals, the County would be liable
assuming that such a policy would, on its face, violate the
Eighth Amendment (or the Due Process clause, for pretrial detainees).
Id. Under this type of claim, “one application of the offensive policy resulting in a
constitutional violation is sufficient to establish municipal liability.” Id. at 379-80.
In contrast, widespread practices “are not tethered to a particular written
policy.” Id. at 380. In these situations, “the claim requires more evidence than a
single incident to establish liability.” Id. Under this prong, the Seventh Circuit has
declined to adopt “any bright-line rules” defining a “widespread custom or practice.”
14

Thomas, 604 F.3d at 303. There is “no clear consensus as to how frequently such
conduct must occur to impose Monell liability, except that it must be more than one
instance, or even three.” Id.; Jones v. City of Chicago, 787 F.2d 200, 204 (7th Cir.
1986) (“[T]he isolated act of an employee generally is not sufficient to impose
municipal liability.”); Palka v. City of Chicago, 662 F.3d 428, 435 (7th Cir. 2011)
(“[T]wo alleged instances of discrimination do not constitute a widespread pattern
or practice.”); Estate of Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir. 2005)
(“[Three] incidents do not amount to a widespread practice that is permanent and
well settled so as to constitute an unconstitutional custom or policy about which the
sheriff was deliberately indifferent.”).

The Seventh Circuit has also found four

instances to be inadequate. See, e.g. Grieveson v. Anderson, 538 F.3d 763, 773 (7th
Cir. 2008); Jenkins v. Bartlett, 487 F.3d 482, 493 (7th Cir. 2007).
Beyond these low numerical thresholds, however, the precise boundaries of
“widespread customs” remain flexible. This lack of precision is understandable.
Unless the number of supposed unconstitutional acts is so exceedingly small that an
absence of custom is facially apparent, mere quantity, standing alone, tells very
little. Municipal activity does not occur in a vacuum. Thus, in addition to the sheer
volume of improper conduct at issue, other probative factors must be considered,
including, inter alia, the period of time alleged, number of municipal actors
involved, and opportunities for the alleged custom to manifest itself.

These

variables, unique to each case, impact the relative import of the number of
constitutional violations alleged.

The number of alleged incidents, for example,

15

carries different meaning depending on whether the incidents occur over the course
of days, weeks, or years. See Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir.
2003) (noting that plaintiff’s alleged incidents occurred “in a period of one year”).
Significance may be further impacted by frequency, i.e., the rate of alleged
unconstitutional behavior relative to lawful activity. See Gable v. City of Chicago,
296 F.3d 531, 538 (7th Cir. 2002) (comparing number of alleged improper incidents
with total number of incidents). In short, the Court must evaluate each distinct
case by examining the totality of the circumstances.
Furthermore, in conducting this analysis, the Court must not lose the forest
for the trees.

Ultimately, the challenge is to “distinguish between systemic

problems showing official deliberate indifference and occasional lapses that are
inevitable in well-run institutions.” Thompson v. Taylor, No. 13-cv-6946, 2016 WL
5080484, at *7 (N.D. Ill. Sept. 20, 2016).

The gravamen “is not individual

misconduct by police officers (that is covered elsewhere under § 1983), but a
widespread practice that permeates a critical mass of an institutional body.” Rossi
v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015) (first emphasis added). In
other words, Monell claims must focus “on institutional behavior.” Id. As a result,
“misbehavior by one or a group of officials is only relevant where it can be tied to
the policy, customs, or practices of the institution as a whole.”

Id.

In effect,

Plaintiffs must show that the unlawful practice “was so pervasive that acquiescence
on the part of policymakers was apparent and amounted to a policy decision.”
Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016). That is, Plaintiffs must

16

present facts “showing that policymakers knew of the conduct or that the conduct
was so widespread that they should have known.” Billings v. Madison Metro. Sch.
Dist., 259 F.3d 807, 818 (7th Cir. 2001).
Here, even when viewed in the light most favorable to Plaintiffs, the evidence
before the Court fails to raise a genuine issue of fact with respect to whether CRS
personnel acted pursuant to an official policy or practice regarding the registration
of homeless sex offenders.

At most, Plaintiffs present evidence of the following

instances from which a reasonable fact finder might deduce unconstitutional
behavior:
Name of Offender
Charles Mowder
Adarryll Kelly
Douglas Montgomery
James McDonald
Henry Hartage
Michael Beley
Michael Beley
John Trotter
Adarryll Kelly
Kenneth Williams

Date of Attempted
Registration
2010
November 2010
January 27, 2011
March 2012
September 2012
November 20, 2012
November 23, 2012
October 2012
October 29, 2013
November 2013

Adarryll Kelly’s November 2010 denial, however, falls outside the scope of the
certified class. See Mem. Op. and Order [126] 15 (certifying class from December 6,
2010 onward).

Similarly, Plaintiffs fail to provide specificity regarding when

Charles Mowder was allegedly denied homeless registration in 2010. Consequently,
the Court cannot conclude that his registration attempt falls within the certified
time period.

17

Regardless, Plaintiffs’ proffered instances remain spread across three
complete calendar years. Only two instances occurred in 2010; one in 2011; five in
2012; and two in 2013. These numbers pale in comparison to the total number of
registrations regularly handled by CRS. In January 2011 alone, CRS completed
389 sex offender registrations; and it completed 478 in January 2012. PSOF [166]
Ex. 17, 21. It is safe to infer, therefore, that CRS easily compiles thousands of
registrations every year. When multiplied over Plaintiffs’ three year timespan, the
ostensible number of total registrations equals more than 10,000, a figure 1,000
times greater than Plaintiffs’ number of alleged violations. This places Plaintiffs’
claim of a “widespread” custom or practice in harsh perspective. See Gable, 296
F.3d at 538.
These figures, of course, consider all Chicago sex offenders seeking
registration, not merely those without a fixed residence.

Viewing Plaintiffs’

evidence from that perspective, however, only further undermines their case,
because Plaintiffs’ purported violations are interspersed with an equal number of
occasions where homeless offenders were registered without a fixed residence.
Indeed, many of these instances involve the same offender who, according to
Plaintiffs, was rejected on other occasions as a result of a widespread practice.
For example, Adarryll Kelly claims that CRS informed him on October 29,
2013 that homeless registration was not permitted. PSOF [166] Ex. 6 at 8. Kelly
admits, however, that he did successfully register as homeless just one week earlier,
on October 22, 2013.

Id.

Similarly, Kenneth Williams claims he was denied

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homeless registration on November 15, 2013, but acknowledges that he successfully
registered as homeless on both November 1 and November 8, 2013.

Pls.’ Mot.

Certify Class [117] Ex. 4. Plaintiffs rely heavily on the experiences of Michael Beley
in November 2012, but admit that Beley has successfully registered as an offender
without a fixed residence since January 2014. DSOF [161] ¶¶ 15.
Plaintiffs also point to Douglas Montgomery’s experience in January 2011.
That same month, however, CRS permitted weekly registration by James
Manegold, another homeless sex offender, four times. PSOF [166] Ex. 17. Likewise,
James McDonald was allegedly denied registration in March 2012, but James
Manegold did register as homeless on April 11, 2012. PSOF [166] ¶ 22; PSOF [166]
Ex. 22 at 7. Henry Hartage was allegedly referred to the shelter at 200 South
Sacramento in November 2012. Three offenders—Ginn Torres, James Manegold,
and Paul Herbert—successfully completed homeless registration on August 6, 28,
and 29, 2012 respectively. PSOF [166] Ex. 23. John Trotter was allegedly denied
homeless registration in October 2012. That same month, CRS registered James
Manegold as homeless five times and registered Paul Herbert as homeless four
times. PSOF [166] Ex. 24.
The remainder of Plaintiffs’ proffered evidence is equally unavailing.
Plaintiffs point, for example, to the attempted registrations of Albert Bingham,
Johnathan Collantes, Timothy Downs, Eric Flowers, Keith Frierson, Jemiah
Gholson, and Eric Williams.

Plaintiffs, however, merely proffer: (1) a Criminal

Registration Log documenting the initial failed registration attempt; (2) an

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identification card issued shortly thereafter reflecting an address of 200 South
Sacramento; and (3) a subsequent SORA registration form reflecting 200 South
Sacramento as the offender’s resident address. As an example, the CRS Criminal
Registration Log indicates that Albert Bingham was turned away on April 18, 2011
for “ID HAS WRONG ADDRESS NO PROOF ADD.” PSOF [166] Ex. 30 at 1. On
April 19, 2011, Bingham was issued a state identification card reflecting an address
of 200 South Sacramento. Id. at 8. Later that day, CRS registered Bingham, listing
his resident address as 200 South Sacramento. Id. at 2-3.
Such evidence, without more (and there is no more here), does not support a
reasonable inference that Defendant denied registration to Bingham because he
lacked a fixed residence. Indeed, Plaintiffs submit no evidence that Bingham, in
fact, lacked a fixed residence on April 18, 2011. If anything, the evidence indicates
the opposite: that Bingham did have a fixed residence—at least as that term is
defined under SORA—at 200 South Sacramento. That being the case, Bingham
was required to comply with SORA’s proof of residence requirement. See 730 ILCS
150/3(c)(5) (requiring “documentation that substantiates proof of residence at the
registering address”). Lacking such documentation, Bingham was properly denied
registration on that basis, not on the purported basis of homelessness.
Plaintiffs’ forms of proof for Collantes, Downs, Flowers, Frierson, Gholson,
Messer, and Williams mirror Bingham, the sole exception being the precise
language employed in the “Reason Being Turned Away” portion of the Criminal
Registration log. The log entries for Collantes, Frierson, and Gholson for example,

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list “NEEDS ID” as the “Reason For Being Turned Away”; Downs’ log entry states
“NEEDS PROOF ADD”; Flowers’ entry states “BAD ADD”; Williams’ entry states
“NO PROOF ADD.” PSOF [166] Ex. 30. These semantics aside, Plaintiffs’ proof
issues remain the same. Such evidence does not establish that each offender lacked
a fixed residence at the time of their failed registration attempt, or that such
offender was denied registration on that basis.
Plaintiffs’ reliance on the attempted registrations of Arthur Jones, Sean
Messer, Dwight Barkley, and Davin Tangrio is similarly flawed.

The Criminal

Registration Log for these individuals simply lists the “Reason For Being Turned
Away” as “HOMELESS SHLTR NO PROOF ADD,” “NEEDS ID/HOMELESS,”
“NEEDS ID SHELTER,” and “HOMLESS [sic] – NEEDS ID,” respectively.

Id.

Once again, it would be unreasonable to infer, from these entries alone, that these
offenders were denied registration because they, in fact, lacked a fixed residence.
“NEEDS ID” or “NO PROOF ADD” is not the same as “NEEDS ADDRESS.” To the
contrary, the reasonable inference is that these individuals were properly denied
registration due to their failure to provide proof of residence or positive
identification.

See 730 ILCS 150/3(c)(5) (requiring “positive identification” and

“documentation that substantiates proof of residence at the registering address”).
Plaintiffs’ general statistical theories fare no better. The basic fact that, over
time, CRS “routinely turned away sex offenders for failure to provide proof of
address and for lack of identification,” is irrelevant; that is precisely what SORA
demands. See Pls.’ Mot. Summ. J. [164] 5. Plaintiffs do not facially challenge the

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constitutionality of SORA’s positive identification or proof of residence requirement
generally. See 730 150/3(c)(5). Rather, Plaintiffs’ due process claim is supported
only where CRS denied registration for failure to provide proof of an address that
does not exist. Plaintiffs’ statistics do not speak to that relevant scenario.
The increase in homeless registration after June 2014, when CRS altered its
positive identification requirements, is also unsurprising.

Any reduction in an

offender’s administrative burden will likely result in greater registration success,
particularly for homeless offenders who are most in need of institutional resources.
The decision to not require government issued identification, however, does not
constitute a prior deliberate choice to deny registration due to an offender’s lack of a
fixed residence. See Derfus v. City of Chicago, No. 13 C 7298, 2015 WL 1592558, at
*4 (N.D. Ill. Apr. 6, 2015) (“The fact that the City registered more offenders as not
having a fixed residence or temporary domicile in two random time periods” in
2014, than “in two random time periods” in prior years, does “not suggest that the
City had a policy of refusing to register offenders with that status.”). 6
Finally, the testimony of Sergeant Jones is, at best, inconclusive.

In a

separate civil case, Jones testified that “every” registering sex offender “needs a
proof of address” and that a “threshold question for every individual who
registered,” was that they “must have a government-issued ID in order to prove
In supplemental briefing, Plaintiffs also assert that the 378 offenders registered as homeless as of
February 13, 2017 proves that homeless registration “was feasible during the class period.” Pls.’
Mot. Supp. Summ. J. Briefing [176] 2. Mere feasibility, however, is beside the point. To survive
summary judgment, Plaintiffs must demonstrate a genuine issue of material fact that, during the
class period, the City of Chicago had a policy or custom of denying SORA registration to sex
offenders because they lacked a fixed residence at the time of registration. Without more, the sheer
number of homeless offenders registered on a random date does nothing help satisfy this burden.
6

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they reside in Chicago.” PSOF [166] Ex. 3 at 122:3-6; Ex. 11 at 241:6-7. That case,
however, focused on SORA’s $100 fee requirement and CPD’s fee waiver procedures,
not the registration process for individuals without any fixed residence. The Court
declines, therefore, to take Sergeant Jones’ testimony out of context. Indeed, during
his deposition in the present litigation, Jones repeatedly stated that the general
proof of residence policy does not apply to individuals lacking a fixed address.
PSOF [166] Ex. 16 at 14:20-23 (“We have a practice to register any person who’s
required to register that comes in to register irrespective of whether they claim to
have a fixed address or not.”), 18:11-18 (“We don’t ask them to show us proof of
address that they say they don’t have.”), 45:4-5, 97:17-19.
In sum, when viewed in the light most favorable to Plaintiffs, the evidence
does not present a triable issue of fact regarding whether there was a policy or
widespread practice of denying SORA registration to sex offenders who lacked a
fixed address at the time of registration. This determination is consistent with at
least one similar case in this district. See Derfus, 2015 WL 1592558, at *4 (finding
no evidence of Monell policy and granting summary judgment on analogous facts).
At most, Plaintiffs have shown “occasional lapses of judgment” or “individual
misconduct by police officers,” not “systemic problems” or “institutional behavior.”
Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015); Thompson v. Taylor, No.
13-cv-6946, 2016 WL 5080484, at *7 (N.D. Ill. Sept. 20, 2016). This is not enough.
As a result, under Monell, Plaintiffs cannot establish municipal liability on their

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sole remaining claim against Defendant. Given this ruling, the Court need not
address the various supplemental arguments raised by the parties.
IV.

Conclusion
Defendant’s Motion for Summary Judgment [159] is granted.

Plaintiffs’

motion for partial summary judgment on the issue of liability as to Count I [164] is
denied. The Clerk is directed to enter Rule 58 judgment in favor of Defendant and
against Plaintiffs. Civil case terminated.

IT IS SO ORDERED
Dated: February 28, 2017

Entered:

____________________________
John Robert Blakey
United States District Judge

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