Long et al v. Cook County et al

Filing 172

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 6/26/2019: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY KOGER,
Plaintiff,
v.
THOMAS J. DART and COOK
COUNTY, ILLINOIS,
Defendants.

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No. 14 C 6361
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the parties’ cross-motions for summary
judgment. For the reasons that follow, Plaintiff’s Motion for Summary Judgment
[Doc. No. 115] is denied, and Defendants’ Motion for Summary Judgment [Doc. No.
118] is granted.
BACKGROUND
Plaintiff Gregory Koger, a former inmate of the Cook County Jail (“CCJ”),
sued the Cook County Sheriff and the county for the CCJ’s policy limiting inmates
to three books in their cells, claiming that his books were unlawfully confiscated
and destroyed by jail personnel. The operative complaint, the First Amended
Complaint filed on October 30, 2015, contained a single count alleging a violation of
Plaintiff’s First Amendment rights.1 In his prayer for relief, Plaintiff sought a

Of the six other plaintiffs listed in the First Amended Complaint, the claims of four were
voluntarily dismissed on January 21, 2016; two others were dismissed on summary
judgment.
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declaration that the three-book policy violated the First Amendment; his reasonable
attorney’s fees and costs; compensatory damages for the loss of his books; and $1.00
in nominal damages for the First Amendment violation. (See 1st Am. Compl., ¶ 35)
[Doc. No. 57].
The parties filed cross-motions for summary judgment and, on September 29,
2017, this Court entered an order denying Plaintiffs’ motion and granting
Defendants’, based on standing/mootness. The Court found that Plaintiff had no
standing to seek injunctive relief because he had been released from custody and
therefore was no longer subject to the three-book policy. See Lyons v. Dart, No. 14 C
6361, 2017 WL 4340096, at *4-5 (N.D. Ill. Sept. 29, 2017). As for his compensatory
damages for the books allegedly taken from him and destroyed, the Court
determined that the Inmate Information Handbook did not provide guidance for the
destruction of contraband, and thus there was no evidence that any alleged
destruction was due to the three-book policy. The order concluded that because
there was an adequate post-deprivation remedy in state court for negligent or
random deprivation of personal property, there was no colorable federal claim
actionable under § 1983, citing Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson v.
Palmer, 468 U.S. 517 (1984). See id. at *6.
Plaintiffs appealed the summary judgment order, and the Seventh Circuit
affirmed in part but vacated the judgment solely with respect to plaintiff Gregory

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Koger’s claim for damages.2 See Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018) [“Lyons
II”]. The Seventh Circuit found that the confiscation of Plaintiff’s books was
authorized by the CCJ’s policy, and Parratt and Hudson did not apply because
“some form of pre-deprivation process – such as asking a prisoner to designate what
should be done with the excess books – would have been practical.” Lyons II, 901
F.3d at 830. Lyons II went on to state that it was premature to address the merits of
the three-book policy “while it remains unclear just what policy the Jail has adopted
for dealing with confiscated reading matter.” Id. Accordingly, the case was
remanded to this Court for determination of “all merits-related questions,” i.e.,
“what policy the Jail is now employing, how (if at all) it affected Koger, and if
necessary to consider the validity of that policy and whether Koger is entitled to
damages.” Id. The Court’s judgment that Plaintiff lacked standing to obtain First
Amendment injunctive relief was affirmed. See id.
After the case was remanded, Plaintiff moved for leave to file a Second
Amended Complaint, which sought to add a due process claim. (See Mot. for Leave
to File 2d Am. Compl., Ex. 1, at 6-7) [Doc. No. 161]. The proposed complaint alleged
that the three-book policy, whereby confiscated materials are treated as contraband
and destroyed, “violate[s] the Fourteenth Amendment’s guarantee of due process
because it results in permanent deprivations of Plaintiff’s and others’ property
without due process.” Id. at 7. During the argument on the motion, Plaintiff’s

The Seventh Circuit affirmed the summary judgment order denying the claims of two
other plaintiffs based upon lack of standing as well as Plaintiff Koger’s lack of a justiciable
First Amendment claim to an injunction against the policy. Lyons v. Dart, 901 F.3d 828,
829-30 (7th Cir. 2018).
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counsel acknowledged that Plaintiff’s first two complaints “didn’t make a separate
count, a separate due process count,” but claimed that they “thought it was always
part of the case.” (11/13/18 Tr. at 3:21-23.) Counsel went on to state that it was not
until “Judge Easterbrook at the Seventh Circuit identified this as in his mind a
critical issue did we think it would be appropriate to make it a separate count.”
(11/13/18 Tr. at 4:2-5.)
Plaintiff’s motion was denied in open court on November 13, 2018 because
Plaintiff did not provide any justification for the four-year delay in adding the
claim; it would possibly require some additional discovery; and it would definitely
require additional briefing on the fully-briefed summary judgment motions.
(11/13/18 Tr. at 5:1-9.) Finding that the parties’ positions on the effect of the
Seventh Circuit’s ruling on their previously briefed cross-motions for summary
judgment would be helpful, this Court later ordered the parties to file supplemental
briefs limited to that issue.
DISCUSSION
There is no dispute that Plaintiff’s complaint never included a due process
claim. Unfortunately, that relevant point was not made clear to the Court in the
parties’ summary judgment briefs. (See, e.g., Defs.’ Mem. in Support of Defs.’ Mot.
for Summ. J. at 27) [Doc. No. 120] (discussing procedural due process). Instead, the
parties focused on the relative constitutionality of the three-book policy and
standing. From the oral argument and Seventh Circuit opinion, it appears that the

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parties also did not alert the appellate court that there was no due process claim
pending before the trial court.
The Court is therefore left with a Seventh Circuit reversal remanding the
case for a merits determination as to damages for an unpleaded claim. The difficulty
of applying Lyons II to this case as it is actually pleaded is the reason the Court
ordered the parties to submit supplemental briefs.
Plaintiff asserts that he was not required to expressly plead a due process
claim, and “courts should decide cases based on any legal theory supported by the
facts.” (Pl.’s Supp. Br. at 12.) Most of the cases he cites, however, involve motions to
dismiss complaints, not summary judgment. See Johnson v. City of Shelby, 574 U.S.
10 (2014); Alioto v. Town of Lisbon, 651 F.3d 715 (7th Cir. 2011); Liston v. King.com,
Ltd., 254 F. Supp. 3d 989 (N.D. Ill. 2017).
The only summary judgment case Plaintiff discusses held that the District
Court should have considered a new theory of liability that had not been set forth in
the plaintiff’s complaint and was offered for the first time on summary judgment, as
long as the fundamental factual allegations had not changed. Whitaker v.
Milwaukee County, 772 F.3d 802, 808-09 (7th Cir. 2014). Plaintiff argues that his
due process claim is similarly “an alternative legal characterization” of the facts in
the case. (Pl.’s Supp. Br. at 13.) However, Whitaker does not support Plaintiff’s
effort to add a due process claim. First, this case is not at the summary judgment
stage. Summary judgment was fully briefed without Plaintiff attempting to recast
the First Amendment factual allegations into a due process claim. (See Pls.’ Resp. to

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Defs.’ Summ. J. Mot. at 29) [Doc. No. 126] (“Here, Plaintiffs do not allege a
procedural due process violation.”) Only after the case was appealed and remanded,
with the Seventh Circuit opinion mentioning a potential claim for due process, did
Plaintiff even think about adding the claim. It is clearly too late to reframe the facts
at this point. Second, Whitaker allowed the plaintiff to argue a joint employer
liability theory on summary judgment because she was “not attempt[ing] to add a
new substantive claim or even a new factual theory of liability,” as Plaintiff
attempts to do here. Whitaker, 772 F.3d at 808.
The matter was remanded to this Court for a determination of the merits of
Plaintiff’s due process damages claim. Because there is no due process claim in the
case, summary judgment must be granted in favor of Defendants.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment [Doc.
No. 115] is denied, and Defendants’ Motion for Summary Judgment [Doc. No. 118]
is granted.
SO ORDERED.

DATE: June 26, 2019

ENTERED:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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