Long et al v. Cook County et al

Filing 29

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 4/15/2015: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN LONG, et al.
Plaintiffs,
v.
THOMAS J. DART, et al.,
Defendants.

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No. 14 C 6361
Magistrate Judge
Maria Valdez

MEMORANDUM ORDER AND OPINION
Presently before the Court is a Partial Motion to Dismiss Plaintiff’s
Complaint Pursuant to Rule 12(b)(6), [Doc. No. 20], filed by defendants Thomas J.
Dart and Cook County, Illinois (collectively “Defendants”). Plaintiffs Kevin Long
(“Long”), Gregory Koger (“Koger”), and Barbara Lyons (“Lyons”) (collectively
“Plaintiffs”), oppose the motion. For the following reasons, the Court denies
Defendants’ Motion.

BACKGROUND 1
Plaintiffs are a group composed of two former Cook County Jail (“CCJ”)
inmates, Long and Koger, and a concerned citizen who corresponds with and sends
books to current inmates, Lyons. Together, they now challenge the constitutionality
of three policies/practices at the CCJ:
1) the prohibition on inmates having more than three books or
magazines in their cells at one time;
2) the “religious exemption” to that prohibition, whereby an inmate
may have more than three religious books or magazines; and
3) the alleged arbitrary and inconsistent enforcement of these policies
Beyond being unconstitutional on their face, Plaintiffs claim these policies/practices
have violated their First Amendment rights in a variety of ways. In Lyons’ case, she
claims the three-book limit and the threat of confiscation prevent her from sending
as much literature as he wants to current inmates, which amounts to an
impermissible restriction on her speech. Long and Koger share a similar story, but
experienced the CCJ’s policies first-hand: on October 5, 2013 — while they were
incarcerated — CCJ staff confiscated over forty books from their respective cells.
These restrictions came as a great surprise to Plaintiffs, particularly because
the CCJ mailroom policy, as set forth in the inmate handbook, states that inmates
may receive an unlimited number of paperback books and magazines as long as the
books arrive in groups of three or less per mailing. Moreover, until October 5, 2013,
neither Long nor Koger had ever heard of the three-book limit being enforced
during their stay at the CCJ, which, in Koger’s case, lasted four years. Accordingly,

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The following facts appear as they are alleged in the Complaint.
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Plaintiffs filed a one-count Complaint pursuant to 42 U.S.C. 1983, alleging, in
pertinent part, the following:
The policy limiting inmates to possessing three total books and
magazines is overbroad on its face; the confusing and contradictory
policies fail to give fair and adequate notice to detainees and
individuals who seek to send reading materials to detainees, thereby
chilling Plaintiffs’ and others from engaging in protected First
Amendment speech; and by privileging religious books over nonreligious books, the policy violates the mandate for governmental
neutrality between religion and non-religion.
(Compl. at 6 [Doc. No. 1].) To remedy these alleged harms, Plaintiffs now seek a
declaratory judgment that the CCJ’s three-book policy is unconstitutional, a
preliminary and permanent injunction barring Defendants and their
agents/employees from enforcing the policy, compensatory damages, and nominal
damages. Defendants, however, doubt that Plaintiffs have standing to pursue
declaratory and injunctive relief, and thus filed the instant Motion.
STANDARD OF REVIEW
In reviewing a motion to dismiss under Rule 12(b)(6), courts takes as true all
factual allegations in the complaint and draw all reasonable inferences in the
plaintiff’s favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007). To survive a 12(b)(6) motion, the claim first must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), such that the defendant is given “fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation omitted). Second, the factual allegations in the claim must be

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sufficient to raise the possibility of relief above the "speculative level," assuming
that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citation and quotation omitted).
However, “[s]pecific facts are not necessary; the statement need only give the
defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081
(2007) (citation and quotation omitted).
DISCUSSION
The gravamen of Defendants’ argument is that Plaintiffs lack standing to
pursue declaratory or injunctive relief. On Defendant’s account, entitlement to such
relief is available only where a plaintiff is suffering an ongoing harm or likely to
suffer such harm again. And because no Plaintiff is currently incarcerated at the
CCJ, it follows that none of them is suffering an immediate harm. If this were a
different context, outside of the First Amendment, Defendants might be correct. But
this case presents an overbreadth challenge, and the Court finds that Plaintiffs do,
in fact, have standing to pursue all of their claims, despite their distal relationship
to the CCJ.
As with all challenges to standing, the starting point is Article III’s “case or
controversy” requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
To demonstrate Article III standing, a plaintiff must show (1) that she has suffered
an actual or threatened injury, (2) that such injury is fairly traceable to the actions
of the defendant, and (3) that a favorable decision by a court would likely redress

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the alleged harm. Id. Plaintiffs satisfy each of these requirements. In Long and
Koger’s case, they allege that their property was confiscated according to an
unconstitutional policy. Similarly, for Lyons, she claims that her long-standing
practice of corresponding with inmates and sending books has been chilled by the
CCJ’s policy and arbitrary enforcement. Wrongfully confiscated property and chilled
speech are injuries that unquestionably support standing, 2 See Perry v. Sheahan,
222 F.3d 309, 313 (7th Cir. 2000); Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.
1995), and therefore Plaintiffs have sufficiently alleged an injury in fact. Clearly,
those alleged injuries are also traceable to Defendants’ conduct, and a favorable
decision by this Court (e.g., an injunction or damages) would remedy the alleged
harm. As such, Plaintiffs have presented a cognizable case or controversy under
Article III.
In addition to the Article III standing, however, the federal judiciary has
established certain prudential boundaries on standing. Those constraints are
particularly demanding in the context of prospective equitable belief: a plaintiff
must typically show a significant likelihood of sustaining an immediate, irreparable
injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 75 (1983). And this is precisely

Defendants attempt to vitiate Lyons’ standing on the grounds that she did not
have any books confiscated and therefore suffered no injury. But this argument
lacks merit. In a suit for prospective relief based on a chilling effect on speech, a
plaintiff can demonstrate a cognizable injury by alleging (1) that in the past, she
has engaged in the type of speech affected by the challenged government action, (2)
that she has a present desire to engage in such speech, and (3) that she presently
has no intention to do so because of a credible threat of enforcement. See Bell v.
Keating, 697 F.3d 445, 454 (7th Cir. 2012). This is precisely what Lyons alleges in
the Complaint, and therefore Defendants’ argument fails.
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where Defendants believe Plaintiffs miss the mark. No Plaintiff is currently
incarcerated, and therefore none is suffering a sufficiently immediate threat to
justify declaratory or injunctive relief. The Court disagrees.
Even if Defendants’ contentions regarding the immediate threat to Plaintiffs’
own First Amendment rights were to be accepted, the critical claim here is that the
CCJ’s three-book limit is unconstitutionally overbroad. As such, Plaintiffs’ claim
necessarily contemplates the First Amendment rights of current CCJ inmates, who
are surely experiencing a real and immediate (alleged) harm. See Bell, 697 F.3d at
454 (“Facial challenges to overly broad statutes are allowed not primarily for the
benefit of the litigant, but for the benefit of [others and] society [as a whole].”)
(citation and quotation omitted). And although, as Defendants note, such a claim
threatens to run afoul of the principle that litigants may not assert the rights and
interest of third parties, see generally Warth v. Seldin, 422 U.S. 490, 499 (1975), the
doctrine of overbreadth provides a unique exception to that principle. As explained
by the Supreme Court:
Litigants . . . are permitted to challenge a
own rights of free expression are violated
prediction or assumption that the statute's
others not before the court to refrain from
speech or expression.

statute not because their
but because of a judicial
very existence may cause
constitutionally protected

Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984). The
Seventh Circuit has similarly followed the Supreme Court’s lead in refusing to place
a premium on prudence in the First Amendment context, see, e.g., Penny Saver

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Publications v. Village of Hazel Crest, 905 F.2d 150, 154 (7th Cir. 1990), and this
Court elects to do the same. 3
The sole remaining issue for overbreadth standing, then, is whether Plaintiffs
“can be expected to satisfactorily frame the issue” on behalf of those whose rights
they wish to represent. Munson, 467 U.S. at 958. Defendants have not put forth any
reasons why Plaintiffs would not be able to represent adequately the First
Amendment interests of current CCJ inmates, nor can the Court conceive of any. As
such, the Court declines to dismiss Plaintiffs’ claims for prospective equitable relief
on the basis that they lack standing. 4

Although Defendants make much of the Supreme Court’s consistent holding that,
typically, a plaintiff’s past exposure to illegal conduct is insufficient to confer standing for
prospective injunctive relief, none of Defendants’ cited cases pertain to First Amendment
overbreadth challenges.
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In their reply brief, Defendants argue that overbreadth standing does not apply to claims
for injunctive relief, but this argument is too clever by half. Apart from citing no case law to
support this point, Defendants fail to counter the proposition that protecting the First
Amendment rights of others is the sine qua non of overbreadth challenges, and that
injunctions are the proper tool for the task. See Schaumburg v. Citizens for Better Env't,
444 U.S. 620, 634 (1980) (explaining that even plaintiffs whose own speech is unprotected
may attack the constitutionality of an overbroad statute on behalf of others); Bell, 697 F.3d
at 452 (explaining that injunctive and declaratory relief is mandatory in successful
overbreadth challenges). Therefore, requiring litigants to demonstrate a real and
immediate personal injury in order to prospectively enjoin an overbroad statute would
essentially backdoor the prudential concerns admonished by the Supreme Court and
Seventh Circuit, as discussed above.
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CONCLUSION
For the reasons set forth above, the Court denies Defendants’ Partial Motion
to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6), [Doc. No. 20].

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

April 15, 2015

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