Wilson v. Evanston, Illinois

Filing 181

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/28/21.(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERMAINE WILSON and
DAMEON SANDERS,
individually and for a class,
Plaintiffs,
v.
CITY OF EVANSTON, ILLINOIS,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 14 C 8347
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Upon being arrested and booked by police officers from the City of Evanston,
in Cook County, Illinois (“Evanston”), in July 2013, Plaintiffs Jermaine Wilson and
Dameon Sanders had their personal belongings inventoried and were given thirty
days to reclaim those belongings that would not be accepted by the Cook County
Department of Corrections. Long after Plaintiffs failed to follow its procedures for
reclaiming their belongings, Evanston destroyed them. On behalf of themselves and
two classes of similarly situated individuals, Plaintiffs allege in this action that
Evanston’s disposal of their personal property pursuant to its reclamation policies
violated their procedural and substantive due process rights. Now before the Court
are cross motions for summary judgment. For the reasons set forth below, Plaintiffs’
motion is denied, and Evanston’s motion is granted.

I.
A.

Background

Facts1
Wilson was arrested by Evanston police officers on July 10, 2013. Pls.’ LR

56.1(a)(3) Statement of Facts (“PSOF”) ¶ 9, ECF No. 162. At the time, he had in his
possession a wedding ring, a cell phone, and a backpack containing miscellaneous
items. Id. ¶ 10; see id., Ex. 4, Wilson Prisoner Receipt (“Wilson Prisoner Receipt”),
ECF No. 152-5.
Sanders, too, was arrested by Evanston police officers, on July 25, 2013. PSOF
¶ 14. In his possession were two cell phones, a Link card, three Chicago Transit
Authority cards, a debit card (which Sanders says was a prepaid debit card worth
$500), a hat, and a belt. Id. ¶ 15; see id., Ex. 11, Sanders Property Receipt (“Sanders
Property Receipt”), ECF No. 152-12.
When Wilson and Sanders arrived at the police station, police officers seized
and inventoried the aforementioned belongings pursuant to Evanston’s official policy.
PSOF ¶¶ 11, 16. Officers then handed each one a yellow copy of a “Prisoner Property
Receipt,” which listed the inventoried items and contained the following notice:
Certain property in your possession will not be accepted by
the Cook County Department of Corrections when you are
transported to court for your bond hearing . . . . In order to
protect [these items], we have inventoried them with our
Property Bureau. You or your designee will have 30 days
from the date of your arrest to retrieve these items. If you
do not retrieve these items within the 30 days they will be
disposed of as provided by statute. THIS IS THE ONLY
NOTICE YOU WILL RECEIVE ABOUT YOUR
PROPERTY.”

1

The following facts are undisputed or deemed admitted, unless otherwise noted.

2

Wilson Property Receipt; Sanders Property Receipt; see also Def.’s LR 56.1(a)(3)
Statement of Facts (“DSOF”) ¶¶ 25–26, ECF No. 160.
Below the notice, each Plaintiff was asked to sign an acknowledgment that he
had read and understood its terms. The form also provided a space for Wilson and
Sanders to designate a particular individual to reclaim his property by presenting the
same yellow copy of the inventory receipt (plus photo identification) at the Property
Bureau within thirty days. See Wilson Property Receipt; Sanders Property Receipt.
Evanston’s policy also permitted arrested individuals to reclaim their property
by other means. For example, an arrestee can designate someone to pick up his or
her property by calling or writing to the Evanston Police Department (“EPD”). He or
she also can make a request for return of the property through his or her attorney.
DSOF ¶¶ 45–47. Evanston’s website, which provides additional information about
arrestee property, further states that, “[u]nder unusual circumstances, an arrestee
may make a written request for extension of the holding period,” which “will be
evaluated on a case-by-case basis.” Id. ¶¶ 33, 36.2
Wilson and Sanders were each transferred to the custody of the Cook County
Sheriff within days of their arrests, and attorneys were appointed for their defense.
DSOF ¶¶ 66, 68, 75, 81. Wilson remained in custody until at least February 2014,

Prior to 2013, Evanston policy gave arrestees up to ninety days to retrieve their
personal property, but had a more elaborate process for doing so. See PSOF ¶ 19; id., Ex. 15,
Wasowicz Dep. at 13:3–14:20, ECF No. 152-16. For instance, arrestees who wanted to
designate someone to pick up their belongings had to arrange for the jail to send a notarized
letter to the Evanston Police Department. Wasowicz Dep. at 13:17–24. Michael Wasowicz,
who oversaw the Property Bureau at the time, spearheaded a change to the policy in effect
in this case based on a model he had observed while working for the Skokie Police
Department. DSOF ¶¶ 40–42.
2

3

when he sent a Freedom of Information Act request to the EPD asking for a new copy
of his property receipt, because his original copy had been ruined. See DSOF ¶ 72;
Def.’s Resp. Pls.’ LR 56.1 Statement of Facts ¶ 12, ECF No. 162. This was the only
effort that Wilson made to recover his inventoried belongings. DSOF ¶ 72.
As for Sanders, he designated his then-girlfriend, Jessica Mosley, to reclaim
his belongings using the inventory receipt, but Mosley did not to do so in time. Id. ¶¶
76–77. Sanders also contacted a friend named William Lee to retrieve the belongings
while in he was custody, but Lee was unable to do so because he did not have a copy
of the inventory property receipt authorizing the EPD to release Sanders’s property
to him. Id. ¶ 78. Sanders called the EPD to request that it release his property to
Lee anyway, but to no avail. Id. ¶¶ 79–80.
Evanston destroyed Sanders’s unclaimed belongings nearly nine months after
his arrest, on April 8, 2014. PSOF ¶ 18; DSOF ¶ 15. It destroyed Wilson’s unclaimed
belongings a few weeks later, on April 30, 2014. PSOF ¶ 13; DSOF ¶ 13.
B.

Procedural History
Wilson filed this action on October 23, 2014, see Compl., ECF No. 1, and an

amended complaint on May 12, 2015, see Am. Compl., ECF No. 26. The City filed a
motion to dismiss under Rule 12(b)(6), which the Court granted in part and denied in
part. See 1/28/16 Mem. Op. and Order, ECF No. 40. One the one hand, the Court
held that the amended complaint did not assert a claim under the Fourth Amendment
and failed to state a claim under the Fifth Amendment’s Taking Clause because
Wilson had not exhausted his state law remedies for the alleged taking of property.

4

On the other hand, the Court ruled that the complaint did state a procedural due
process claim under the Fourteenth Amendment, to the extent it alleged that the
process by which Wilson was allowed to recover his property was inadequate.
Wilson filed a second amended complaint on August 31, 2016, naming Sanders
as an additional plaintiff and alleging both procedural and substantive due process
claims. See 2d Am. Compl., ECF No. 56. Plaintiffs then moved to certify the following
classes pursuant to Rule 23(b)(3):
Class I, Substantive Due Process: All persons whose
property, following an arrest on and after October 23, 2012,
was held at the Evanston Police Department and destroyed
or otherwise disposed of before the conclusion of court
proceedings in connection with which such property was
seized or otherwise taken possession of.
Class II, Procedural Due Process: All persons whose
property, following an arrest on and after October 23, 2012,
was held at the Evanston Police Department and destroyed
or otherwise disposed of while that person remained in the
custody of a jail or penitentiary.
Pls.’ Mot. Class Cert. at 1, ECF No. 57. The Court granted the motion and certified
both classes on August 30, 2017. See 8/30/17 Mem. Op. and Order, ECF No. 75.
More than a year later, the Supreme Court held in Knick v. Township of Scott
that a plaintiff need not exhaust state law remedies before asserting a claim under
the Takings Clause. 139 S. Ct. 2162, 2177–79 (2019). Plaintiffs then asked the Court
to reconsider its order of January 28, 2016, granting Evanston’s motion to dismiss
the first amended complaint as to that claim. See Pls.’ Mot. Reconsider, ECF No. 124.
The Court granted the motion in light of Knick and vacated that portion of its January

5

28, 2016, order. See 3/9/20 Order, ECF No. 140. However, Plaintiffs never amended
their operative second amended complaint to reallege a Takings Clause claim.
Now that discovery has closed, each side has moved for summary judgment.
See Pls.’ Mot. Summ. J., ECF No. 150; Def.’s Mot. Summ. J, ECF No. 158.
II.

Legal Standard

Summary judgment is appropriate where “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). The moving party has the initial burden of
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “come forward
with specific facts showing that there is a genuine issue for trial.” LaRiviere v. Bd.
of Trs. of S. Ill. Univ., 926 F.3d 356, 359 (7th Cir. 2019). To satisfy that ultimate
burden, the nonmoving party must “establish some genuine issue for trial such that
a reasonable jury could return a verdict in her favor.” Gordon v. FedEx Freight, Inc.,
674 F.3d 769, 772–73 (7th Cir. 2012); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In the case of cross-motions, courts “look to the burden of proof that each party
would bear on an issue as trial.” Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997). “Cross-motions must be evaluated together, and the court may not
grant summary judgment for either side unless the admissible evidence as a whole—
from both motions—establishes that no material facts are in dispute.” Bloodworth v.
Vill. of Greendale, 475 F. App’x 92, 95 (7th Cir. 2012).

6

III.

Analysis

Each side moves for summary judgment on Plaintiffs’ procedural and
substantive due process claims. The Court takes the claims in turn.
A.

Procedural Due Process Claim
The Court begins with Plaintiffs’ procedural due process claim. Procedural due

process requires two things “before the state may take property”—“adequate notice
and an opportunity to be heard.” Conyers v. City of Chi., 10 F.4th 704, 712 (7th Cir.
2021), reh’g and reh’g en banc denied (2021). Consistent with the Court’s order on
Evanston’s motion to dismiss the first amended complaint, Plaintiffs do not dispute
that the inventory receipts they received from the EPD “provided constitutionally
adequate notice.” DSOF ¶ 18. So the only issue is whether Evanston provided “the
process that was due to justify the deprivation” of their belongings. See Armato v.
Grounds, 766 F.3d 713, 721–22 (7th Cir. 2014)).
“[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To
determine what process is due in a particular situation, courts “must balance three
factors: ‘[f]irst, the private interest that will be affected by the official action; second,
the risk of erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirements

7

would entail.’” Schepers v. Comm’r, Ind. Dep’t of Corr., 691 F.3d 909, 915 (7th Cir.
2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (alteration in original)).
Here, Plaintiffs argue that the Mathews balancing test requires Evanston to
hold onto arrestee property “for persons who are unable to secure pre-trial release”
until sometime after they have been released. Pls.’ Mem. Supp. Mot. Summ. J. at 14,
ECF No. 151. Plaintiffs contend that such a procedure would minimize erroneous
deprivations—characterized as disposals of property which an arrestee does not wish
to abandon—without imposing any burden on Evanston.
Not only is Plaintiffs’ argument devoid of any legal authority, it is foreclosed
by the Seventh Circuit’s recent decision in Conyers. There, the court found “no
support in due-process cases for the proposition that the City must serve as an
involuntary bailee of property for lengthy periods of time, incurring all the costs and
responsibilities that such a status would implicate. 10 F.4th at 715. Much like this
case, Conyers involved the City of Chicago’s disposal of arrestee property that had not
been reclaimed within thirty days under a similar procedure. Id. at 706–08. In
affirming the district court’s grant of summary judgment for the City of Chicago, the
appellate court held that the City’s disposal of the property violated neither the
Takings Clause nor procedural due process. Id. at 710–15.
Granted, as Plaintiffs point out in their supplemental brief, much of the due
process analysis in Conyers turned on the adequacy of Chicago’s notice rather than
its reclamation procedures. See id. at 712–14. Nonetheless, the Seventh Circuit
implicitly determined that its reclamation procedures were constitutionally adequate

8

as well. Notably, in rejecting the plaintiffs’ Takings Clause claim (which the court
found to be “intertwined” with their due process claim, id. at 712), the court held that
Chicago did not owe compensation because it “was entitled to treat th[e] property as
abandoned—that is, intentionally relinquished—when the plaintiffs failed to follow
the reclamation procedures the City offered.” Id. at 711. Posing itself the question
of “where, between a day and forever, does the Constitution draw the line,” the court
discerned “nothing unconstitutional about the City’s decision to deem property
abandoned after 30 days have elapsed,” noting that “the 30-day limit reflected the
practical constraints on storage capacity” and that the City “offered several ways for
the detainee to reclaim his property.” Id. at 711–12. And the court reprised this
reasoning with respect to the plaintiffs’ procedural due process claim in holding that
due process did not require the City to “serve as an involuntary bailee of property”
for lengthier periods of time. Id. at 715. The same reasoning holds true here.
Plaintiffs’ efforts to distinguish Conyers on its facts are unpersuasive. For
starters, they identify no relevant difference between the reclamation procedures of
Evanston and those of Chicago in Conyers. Instead, Plaintiffs assert that Evanston
does not share Chicago’s constraints on storage capacity, citing a February 6, 2018,
letter in which an attorney with Evanston informed Plaintiffs’ counsel that it had
made a “temporary legal decision” to refrain from disposing of arrestee property “in
order to reduce [its] potential damages” in this action. See Pls.’ Mot Compel, Ex. 5,
2/6/18 Letter from H. Ford, Jr. to K. Flaxman, ECF No. 83 at 70–71. But this
temporary decision hardly suggests that Evanston has the capacity to hold onto all

9

arrestee property indefinitely.

To the contrary, common sense supports (and

Plaintiffs fail to refute) Evanston’s assertion that it, too, has limited space to store
the property inventoried from the approximately forty arrests that it makes each
month. See DSOF ¶ 49. And even if Evanston had limitless storage space, it would
still have to incur “all of the costs and responsibilities” that accompany the status of
an “involuntary bailee of property for lengthy periods of time.” See Conyers, 10 F.4th
at 715.

Under the reasoning of Conyers, Evanston’s interest in avoiding such

additional fiscal and administrative burdens is the paramount consideration for
purposes of procedural due process.
Thus, because Evanston’s policy gave Plaintiffs a constitutionally sufficient
opportunity to reclaim their property before it was disposed of, Evanston’s motion for
summary judgment is granted as to Plaintiffs’ procedural due process claim, and
Plaintiffs’ motion is denied.
B.

Substantive Due Process Claim
The Court turns next to Plaintiffs’ substantive due process claim. Both the

Supreme Court and the Seventh Circuit have repeatedly emphasized “how limited
the scope of the substantive due process doctrine is.” Dunn v. Fairfield Cmty. High
Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (citing Washington v.
Glucksberg, 521 U.S. 702, (1997)). “Unless a governmental practice encroaches on a
fundamental right, substantive due process requires only that the practice be
rationally related to a legitimate government interest, or alternatively phrased, that
the practice be neither arbitrary nor irrational.” Lee v. City of Chi., 330 F.3d 456, 467

10

(7th Cir. 2003) (citing Glucksberg, 521 U.S. at 728). Furthermore, when, as in this
case, “a substantive-due-process challenge involves only the deprivation of a property
interest, a plaintiff must show either the inadequacy of state law remedies or an
independent constitutional violation before the court will even engage in this
deferential rational-basis review.” Id. (cleaned up).
Here, Plaintiffs contend that Evanston’s disposal of their property violated
substantive due process because, in their view, an ordinance requires Evanston to
hold onto arrestee property for sixty days “from the date of the final disposition of the
court proceedings in connection with which such property was seized or otherwise
taken possession of.” See Evanston, Ill., Code § 9-7-3 (discussing “lost or stolen
property”).

Plaintiffs assert that this ordinance creates “a legitimate claim of

entitlement”—that is, a property interest—“protected by the Due Process Clause.”
See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (cleaned up).
Plaintiffs, however, overlook the bulk of the framework that applies to their
substantive due process claim. Under that framework, “the deprivation of a property
interest” under an independent source of law is merely the catalyst for constitutional
scrutiny, not the end of it. See Lee, 330 F.3d at 467. Thus, assuming arguendo that
the ordinance to which Plaintiffs point applies to arrestee property,3 they must
proceed to show either “an independent constitutional violation” or “the inadequacy
of state law remedies,” and that Evanston’s practice of disposing of such property

Evanston disputes this point, contending that arrestee property does not constitute
“lost or stolen property” within the meaning of Evanston Code § 9-7-1 et seq. Given its above
reasoning, the Court need not resolve this dispute.
3

11

after thirty days is not “rationally related to a legitimate governmental interest.” See
id. But Plaintiffs have failed to show an independent constitutional violation, and
they make no argument that the state law remedies available to them are inadequate.
Lastly, even if they could make that showing, Conyers indicates that a municipality’s
decision to treat arrestee property as abandoned after thirty days is rationally related
to its legitimate interest in avoiding the burdens of serving as “an involuntary bailee
of property for lengthy periods of time,” as discussed above. See 10 F.4th at 715. And
to the extent Plaintiffs suggest that Evanston’s disposal of their property violated
substantive due process simply because it was inconstant with § 9-7-3, they ignore
that “an error of state law is not a violation of due process.” See Ind. Land Co., LLC
v. City of Greenwood, 378 F.3d 705, 711 (7th Cir. 2004) (finding no violation of
substantive due process where the manner in which a city council effectuated a
deprivation of property “may have violated state law”).
Accordingly, Evanston’s cross-motion for summary judgment is granted as to
Plaintiffs’ substantive due process claim, and Plaintiffs’ motion is denied.
C.

Purported Takings Clause Claim
Finally, the parties dispute whether a Fifth Amendment Takings Clause claim

is currently before the Court. As noted, the Court vacated the portion of its order
dismissing this claim from the first amended complaint, but this was after Plaintiffs
had filed a second amended complaint that did not include a Takings Clause claim.
At that point, Plaintiffs should have asked for leave to file a third amended complaint
realleging this claim, but did not do so. Accordingly, because Plaintiffs’ operative

12

second amended complaint is devoid of a Taking Clause claim, it would substantially
prejudice Evanston to recognize such a claim at this point. Cf. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (noting that a complaint must “give the defendant
fair notice of what the claim is” under Rule 8(a)(2) (cleaned up)).
Plaintiffs’ reliance on Koger v. Dart, 950 F.3d 971, 974–75 (7th Cir. 2020), for
the proposition that they did not have to reallege a Takings Clause claim is misplaced.
Koger applied Johnson v. City of Shelby, which held that Rule 8(a)(2) “do[es] not
countenance the dismissal of a complaint for imperfect statements of the legal theory
supporting the claim asserted.” 574 U.S. 10, 11 (2014). This hardly supports the
view that Plaintiffs may invoke at summary judgment a claim that was dismissed
from an earlier complaint and which bears no trace in their operative complaint.
Furthermore, even assuming that a Taking Clause claim were properly before
the Court, it, too, would be foreclosed by Conyers.4 To review, the Seventh Circuit
held in Conyers that the City of Chicago did not violate the Taking Clause by taking
property without compensation because it “was entitled to treat th[e] property as
abandoned . . . when the plaintiffs failed to follow the reclamation procedures the City
offered.” 10 F.4th at 711. This reasoning applies with equal force here. Plaintiffs’
retort that this holding hinged on the magic words “presumptively abandoned” in the
Chicago ordinance does not stand up to scrutiny. See Pls.’ Suppl. Mem. at 2 (quoting
Conyers, 10 F.4th at 706 (in turn citing Chi., Ill., Code § 2-84-160 et seq.)). Thus,
Evanston would be entitled to summary judgment on any such claim as well.
Because the parties have briefed the merits of the claim, the Court may address its
merits. See, e.g., Terrado v. Moyer, 820 F.2d 920, 922 (7th Cir. 1987).
4

13

IV.

Conclusion

For the reasons set forth above, Plaintiffs’ cross-motion for summary judgment
is denied, and Evanston’s cross-motion for summary judgment is granted. Judgment
will be entered in favor of Defendant City of Evanston. Civil case terminated.

IT IS SO ORDERED.

ENTERED: 9/28/21

__________________________________
John Z. Lee
United States District Judge

14