Elizarri v. Cook County et al

Filing 52

MEMORANDUM Opinion and Order; For the foregoing reasons, the Court denies the Sheriff's motion to dismiss 47 . Signed by the Honorable Thomas M. Durkin on 12/17/2018:Mailed notice(srn, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEONICIO ELIZARRI AND
GREGORY L. JORDAN, individually and on
behalf of others similarly situated,
Plaintiffs,
v.
SHERIFF OF COOK COUNTY AND
COOK COUNTY, ILLINOIS,
Defendants.

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No. 17 CV 8120
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiffs Leonicio Elizarri and Gregory L. Jordan, individually and on behalf
of others similarly situated, sued the Sheriff of Cook County and Cook County, Illinois
based on Cook County Jail’s practice of holding the personal property of thousands of
former prisoners. R. 42. Currently before the Court is the Sheriff’s motion to dismiss
Gregory L. Jordan’s claim under Fed. R. Civ. P. 12(b)(6). R. 47. For the following
reasons, the Court denies the Sheriff’s motion.
Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint 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), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
Background 1
The Sheriff lawfully seizes prisoner property when prisoners enter Cook
County Jail. R. 42 ¶ 6. When a prisoner is transferred away from Cook County Jail,
Illinois law requires the Sheriff to send to the receiving facility “compliant property,”
which consists of: (a) monies in the prisoner’s commissary account; (b) identification
cards; (c) legal papers; (d) one religious book; (e) eyeglasses or contacts and case; (f)
personal correspondence; (g) wedding bands without stones; and (h) photos (up to 24).
Id. ¶ 8. It is unclear whether prisoners ordinarily have access to their compliant

The Sheriff moved to dismiss the original complaint as premature on December 21,
2017. R. 13. The Court’s May 5, 2018 decision denying that motion contains additional
background facts. R. 23.
1

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property upon transfer. Prisoner property that the receiving facility will not accept is
known as “non-compliant property.” Id. ¶ 9.
Before 2008, the Sheriff had a procedure of destroying all non-compliant
property of prisoners transferred to other facilities unless the prisoner arranged for
someone to pick up the property within 45 days. Id. ¶¶ 12-13. Beginning in 2008, the
Sheriff changed its policy regarding non-compliant property. R. 42 ¶ 14. Instead of
destroying it unless a prisoner made other arrangements for it following transfer, the
Sheriff began storing it. Id.
In 2011, the Sheriff hired an outside vendor to inventory the collected noncompliant property. Id. ¶ 15. The vendor inventoried 57,641 sealed property bags
belonging to detainees transferred from Cook County Jail to the Illinois Department
of Corrections alone. Id. ¶ 16. Included in that inventory were 23,415 property bags
that contained some compliant property that should have transferred with the
prisoners pursuant to the compliant property policy described above. Id. ¶¶ 9, 17.
On November 9, 2017, Elizarri filed this lawsuit under 42 U.S.C. § 1983,
alleging that the Sheriff failed to return the personal property taken from him on
December 30, 2015 upon his December 9, 2016 release from the Illinois Department
of Corrections in violation of the Fourth and Fourteenth Amendments. Id. ¶¶ 22-28,
33-35. Gregory L. Jordan then joined this lawsuit on September 5, 2018 as a second
putative class representative through the amended complaint. R. 42.
Jordan most recently entered the Cook County Jail on July 3, 2014. Id. ¶ 29.
His personal property upon entry included keys, a social security card, state

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identification card, wallet, and belt. Id. ¶ 30. Jordan was transferred to the Illinois
Department of Corrections in March 2015. Id. ¶ 31. The Sheriff did not send Jordan’s
personal property to the Illinois Department of Corrections. Id. ¶ 33. Instead, it was
placed in storage with other prisoner property under the policy described above. Id.
In fact, one of the 23,415 property bags inventoried as containing “compliant
property” contained compliant property belonging to Jordan. Id. ¶¶ 17-18.
Jordan was released from the Illinois Department of Corrections on December
22, 2017. Id. ¶ 32; R. 50 at 3, n.1. Jordan’s (and Elizarri’s) personal property remains
in the Sheriff’s custody. R. 42 ¶ 33-34. The Sheriff does not contend that it has altered
its policy regarding prisoner property. The amended complaint does not indicate what
notice or other information Jordan had regarding what happened to his property
either when he arrived at Cook County Jail in July 2014, or when he transferred to
the Illinois Department of Corrections in March 2015. It is likewise unclear from the
amended complaint whether Jordan is complaining about his compliant property, his
non-compliant property, or both. 2
Together with Elizarri, Jordan seeks “appropriate injunctive relief requiring
the Sheriff to return all property belonging to former detainees,” as well as
“appropriate restitution for property that has been lost, misplaced, or stolen.” Id. at
7-8.

For purposes of the resolution of this motion, the Court assumes Jordan complains
about both his compliant and non-compliant personal property. But Jordan would be
well-advised to amend his complaint for clarity going forward.
2

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Analysis
The Sheriff now moves to dismiss Jordan’s Section 1983 claims as untimely. R.
47. Typically, “complaints do not have to anticipate affirmative defenses to survive a
motion to dismiss.” U.S. v. Lewis, 411 F.3d 838, 842 (2005) (citing Gomez v. Toledo,
446 U.S. 635, 640 (1980)). To be sure, if “there is any set of facts consistent with [the
plaintiff’s] allegations that would give rise to a right to relief,” a complaint will
survive a motion to dismiss. Id. “The exception occurs where . . . the allegations of the
complaint itself set forth everything necessary to satisfy the affirmative defense, such
as when a complaint plainly reveals that an action is untimely under the governing
statute of limitations.” Id.
The statute of limitations period for Section 1983 claims in Illinois is two years.
See O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (“The limitations
period for § 1983 claims is based in state law, and the statute of limitations period for
§ 1983 actions in Illinois is two years.”). The filing of a class action tolls the statute of
limitations for potential class members. American Pipe & Const. Co. v. Utah, 414 U.S.
538, 554 (1978).
The Sheriff contends that Jordan’s claims accrued in March 2015 when Jordan
was released from Cook County Jail and transferred to the Illinois Department of
Corrections, or at the latest forty-five days thereafter. R. 47 at 4; R. 51 at 3. In
response, Jordan alleges that although the Sheriff has retained his property since his
July 3, 2014 incarceration, he was not aware until his discharge from the Illinois
Department of Corrections on December 22, 2017 that the Sheriff possessed and

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would not release it. Because of this, Jordan contends that his claims accrued upon
his release or perhaps have yet to accrue because the Sheriff still possesses his
property. R. 42 ¶¶ 29-34; R. 50 at 2-3; 4-6. Accordingly, the sole issue here is the date
upon which Jordan’s claims accrued. If the accrual date is March 2015 when Jordan
was transferred out of Cook County Jail (or forty-five days later), his claims are timebarred. If the date is December 2017 when Jordan was discharged (or later), his
claims are timely. 3
The discovery rule “governs the accrual of claims in federal suits.” U.S. v.
Norwood, 602 F.3d 830, 837 (7th Cir. 2010). “The discovery rule starts the statute of
limitations running only when the plaintiff learns that he’s been injured, and by
whom.” Norwood, 602 F.3d at 837 (citing U.S. v. Kubrick, 444 U.S. 111 (1979) and
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990)). Under Section
1983, then, a plaintiff’s claim generally accrues when the plaintiff “knows or should
have known that his or her constitutional rights have been violated.” Kelly v. City of
Chicago, 4 F.3d 509, 511 (7th Cir. 1993).
Here, the amended complaint does not specify exactly when Jordan became
aware of the whereabouts of his personal property. Nor does it indicate whether he
received notice of any policy governing his personal property. See generally R. 42.
Jordan indicates in his brief that he could not have known until his December 2017

Jordan also alleges that because he seeks only injunctive relief in this case, there is
no statute of limitations at all. R. 50 at 5-6. But the amended complaint seeks more
than injunctive relief, so the Court need not address this argument. See R. 42 (seeking
“restitution for property that has been lost, misplaced, or stolen”).

3

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release from penitentiary that his compliant property did not follow him. See R. 50 at
3 (Jordan “could not have known until he was discharged from the penitentiary [on
December 22, 2017] that defendant did not send Jordan’s ‘compliant’ personal
property . . . to the Illinois Department of Corrections.”). His brief says nothing
specific about his knowledge regarding the whereabouts of his non-compliant
property. See generally id.
It is unclear when Jordan knew or should have known about his constitutional
claims as to his personal property. It is thus inappropriate to dismiss his claims as
time-barred at this stage. Compare Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)
(“We find it appropriate here to consider the statute of limitations because the
relevant dates are set forth unambiguously in the complaint.”), with Arnold v.
Janssen Pharms., Inc., 215 F. Supp. 2d 951, 959 (N.D. Ill. 2002) (“impossible” to
determine whether plaintiff’s claims were time-barred on motion to dismiss where
plaintiff did not include precise dates with her allegations), and Padron v. Wal-Mart
Stores, Inc., 783 F. Supp. 2d 1042, 1051 (N.D. Ill. 2011) (denying motion to dismiss
on timeliness grounds where plaintiff did not allege a specific date on which
defendant made its discriminatory decision).
The Sheriff’s multiple representations in its reply brief that Jordan admitted
“that he was made aware that his property had to be picked up from the Sheriff within
45 days after his release from the [Cook County Jail]” and that he “voluntarily
relinquished” his rights to his property by not timely claiming it do not change the
result. R. 51 at 2-3 (quoting R. 42 ¶ 13). Not only did Jordan lack the opportunity to

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respond to the Sheriff’s assertions, but neither the amended complaint nor Jordan’s
response brief contain any such admission. To be sure, paragraph 13 of the amended
complaint spoke to the pre-2008 policy regarding non-compliant prisoner property,
and, as noted, neither it, nor any other paragraph in the amended complaint said
anything about the notice Jordan received regarding his property under the post-2008
procedure applicable to such property here. See generally R. 42. 4
Thus, accepting as true all well-pleaded facts alleged, and drawing all possible
inferences in Jordan’s favor, the Court finds that the amended complaint supports an
inference that Jordan’s claims were not time-barred as of the November 9, 2017 filing
of this lawsuit. Dismissal on that ground at this stage is not appropriate. Whether
Jordan can ultimately establish the defense requires consideration of evidence
outside of the pleadings, and is more amenable to a motion for summary judgment
after the parties have engaged in discovery. 5

Although not fully developed, the Court is also skeptical of the Sheriff’s “voluntary
relinquishment” argument. Even if that had been the policy at the time of Jordan’s
transfer to the Illinois Department of Corrections in March 2015—which again, there
is no indication from the pleadings is the case—the Court would be hard-pressed to
find Jordan’s claims time-barred if the Sheriff still possesses Jordan’s property.
4

The Court declines to address Jordan’s argument that Manuel v. City of Joliet, 903
F.3d 667 (7th Cir. 2018) directs a finding that the statute of limitations has yet to
accrue in this case, because the Court is able to resolve this motion relying upon wellsettled discovery rule principles, and application of Manuel to these facts would not
alter the result. Manuel, 903 F.3d at 670 (holding as to the unconstitutional detention
of a person, that “[t]he wrong of detention without probable cause continues for the
duration of the detention. That’s the principal reason why the claim accrues when
the detention ends.”).
5

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Conclusion
For the foregoing reasons, the Court denies the Sheriff’s motion to dismiss [47].
ENTERED:

_____________________
Honorable Thomas M. Durkin
United States District Judge

Dated: December 17, 2018