Adair et al v. Town Of Cicero

Filing 35

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/19/2018: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies the motion to dismiss [dkt. no. 20]. The case remains set for a status hearing on October 23, 2018 for the purpose of setting a discovery schedule. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LESIA ADAIR, et al.,

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Plaintiffs,
v.
TOWN OF CICERO,
Defendant.

Case No. 18 C 3526

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiffs Lesia Adair, Anita Donato, Jordan Garcia, Veronica Garcia, and Areceli
Vega are women who were detained at a police lock-up facility administered by the
Town of Cicero. They sued Cicero, alleging that the configuration of the lock-up facility
required them to use the bathroom (and thereby expose their genitals) in full view of
male lock-up employees and male detainees. The plaintiffs allege that Cicero is liable
under Monell v. Department of Social Services of the City of New York, 436 U.S. 658
(1978), because the facility's configuration constituted an official policy that caused male
lock-up employees to engage in unreasonable searches in violation of the Fourth
Amendment to the U.S. Constitution. Cicero has moved to dismiss the complaint for
failure to state a claim.
Background
The plaintiffs' complaint alleges the following facts, which the Court accepts as
true in considering the motion to dismiss. See West Bend Mut. Ins. Co. v. Schumacher,

844 F.3d 670, 675 (7th Cir. 2016). The plaintiffs are five women who were detained at
the Cicero Police Department's lock-up facility, which is administered by the Town of
Cicero. While detained, the plaintiffs had no choice but to use the bathroom facilities in
the female lock-up cells. Those bathrooms are situated in such a way that male
employees walking by the cells can see the genitals of the detainees using the
bathroom. In addition, male employees monitor a video camera that captures female
detainees using the bathroom and provides a view of their genitals. The plaintiffs sued
Cicero, alleging under Monell that this configuration constitutes a policy that caused the
lock-employees to engage in unreasonable searches in violation of the Fourth
Amendment. Cicero has moved to dismiss the complaint for failure to state a claim.
Discussion
In order to survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the complaint must state a claim to relief that is plausible on its face. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). "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." Sloan v. Am. Brain Tumor Assoc., 901
F.3d 891, 894 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678).
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S.
Const. amend. IV. Its "basic purpose . . . is to safeguard the privacy and security of
individuals against arbitrary invasions by government officials." Carpenter v. United
States, 138 S. Ct. 2206, 2213 (2018) (internal quotation marks omitted).
A.

Fourth Amendment rights of arrestees
Cicero argues that the complaint fails to state a claim under the Fourth

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Amendment because detainees have diminished privacy interests after their arrest.
Cicero relies primarily on Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), in which the
Seventh Circuit upheld the dismissal of a suit by a pretrial detainee alleging that the
policy of the Cook County Jail to have female guards monitor male detainees in the
shower violated his constitutional rights. The court, interpreting the Supreme Court's
decisions in Bell v. Wolfish, 441 U.S. 520 (1979), and Hudson v. Palmer, 468 U.S. 517
(1984), held that "privacy is the thing most surely extinguished by a judgment
committing someone to prison," and "monitoring of naked prisoners is not only
permissible . . . but also sometimes mandatory." Johnson, 69 F.3d at 146. Cicero
argues that the plaintiffs have not stated a claim for violations of their constitutional
rights because, as detainees, they were not entitled to Fourth Amendment privacy
protections.
But Johnson's Fourth Amendment holding applies only to prisoners and pretrial
detainees—not arrestees awaiting a probable-cause hearing. In contrast, the Seventh
Circuit has repeatedly held that arrestees who have not yet undergone a probablecause hearing under Gerstein v. Pugh, 420 U.S. 103 (1975), are entitled to Fourth
Amendment protections. See Banaei v. Messing, 547 F. App'x 774, 777 (7th Cir. 2013)
(noting that "Fourth Amendment standards apply" to the plaintiff's claim that she was
strip-searched while in police custody); Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir.
2013) ("[T]he fourth amendment governs the period of confinement between arrest
without a warrant and the [probable cause determination]." (alteration in original)); Ortiz
v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011) ("Because [the plaintiff] had not yet
benefitted from a judicial determination of probable cause, otherwise known as a

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Gerstein hearing, we agree that the Fourth Amendment applies."); Lopez v. City of
Chicago, 464 F.3d 711, 719-20 (7th Cir. 2006) ("Bell concerned . . . pretrial detainees
for whom a judicial determination of probable cause has already been made. That the
Fourth Amendment does not apply to postarraignment detention does not make its
protections inapplicable to the period between [the plaintiff's] arrest and his probable
cause hearing.").
These cases establish that Johnson's categorical prohibition on Fourth
Amendment claims encompasses only convicted prisoners and pretrial detainees;
arrestees awaiting a probable-cause hearing, by contrast, are still protected by the
Fourth Amendment. Because the plaintiffs allege that they had not yet undergone
Gerstein hearings while they were held at Cicero's lock-up facility, Johnson does not bar
the plaintiffs from alleging an invasion of privacy under the Fourth Amendment.
B.

Plaintiffs' factual allegations
Cicero acknowledges that that Johnson and related cases concern only

convicted prisoners and pretrial detainees, but it argues that even if the Fourth
Amendment applies to the plaintiffs, the complaint lacks adequate factual allegations to
survive a motion to dismiss. The complaint can withstand a motion to dismiss so long
as its factual allegations state a "plausible" claim that the configuration of the lock-up
constituted a policy of engaging in unconstitutional searches. See Iqbal, 556 U.S. at
678.
1.

Searches

Cicero argues that the facts alleged in the complaint are insufficient to state a
claim that the lock-up employees engaged in searches within the meaning of the Fourth

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Amendment. First, it argues that any observation of the detainees using the bathroom
was "casual, inadvertent or intermittent," and that therefore the alleged observation
"does not rise to the level of a constitutional violation." Def.'s Mot. for Summ. J., dkt. no.
20, at 4. This contention is a factual assertion beyond the face of the complaint,
however, and it cannot support a motion to dismiss under Rule 12(b)(6). See Fed. R.
Civ. P. 12(d); Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018). And because the
plaintiffs' allegations permit a reasonable inference that at least some of the
observations were purposeful, the Court must draw that inference in the plaintiffs' favor.
See Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016).
But even if believed, Cicero's allegation that the observations were inadvertent is
not dispositive: Johnson itself held that "[o]bservation is a form of search," and the
Seventh Circuit reaffirmed this principle in King v. McCarty, 781 F.3d 889, 901 (7th Cir.
2015) ("It is well established that observation of a nude detainee is a search for
purposes of the Fourth Amendment."). The complaint alleges that male employees
observed the plaintiffs' genitals in the course of monitoring them, which is sufficient to
state a claim that the plaintiffs were searched within the meaning of the Fourth
Amendment.
Second, Cicero argues that the complaint is too sparse with factual details to
withstand a Rule 12(b)(6) motion. It asserts that, among other deficiencies, the
complaint alleges no facts regarding "how exactly the arrestees can be viewed using the
bathroom." Def.'s Reply in Supp. Mot. for Summ. J., dkt. no. 33, at 6. The law does not
impose a highly exacting standard on the plaintiffs at this stage, however: "[t]he
plausibility standard is not akin to a 'probability requirement.'" Iqbal, 556 U.S. at 678.

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The plaintiffs' burden on a motion to dismiss is limited to alleging "enough details about
the subject-matter of the case to present a story that holds together." Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
The plaintiffs have met their burden by alleging specific factual details about the
configuration of the facility. They allege in their complaint that that the bathroom "was
situated in such a way that male arrestees and male Town of Cicero lock up employees
walking by could see into the cells while the Plaintiffs were using the bathroom facilities
inside their cell, thus allowing the Cicero male lock-up employees and/or the male
arrestees to see the exposed genitals of the Plaintiffs." Compl., dkt. no 1, ¶ 20. They
further allege that the video camera was "viewed and monitored by male Town of Cicero
lock-up employees, that allowed Town of Cicero male lock up keepers to view the
Plaintiffs while they used the bathroom, with their genitals exposed to male lock-up
employees." Id. ¶ 21. In their response brief, the plaintiffs supplement these allegations
by providing a specific description of the arrangement of the toilet and surrounding walls
that clarifies from what angles and to what extent an onlooker could have viewed the
plaintiffs. Pls.' Resp. to Mot. for Summ. J., dkt. no. 29, at 10. The Court may properly
consider these additional allegations because they are consistent with the allegations in
the complaint. See Bible v. United Student Aid Funds, Inc., 899 F.3d 633, 640 n.1 (7th
Cir. 2015). In describing the arrangement of the bathrooms within the cell, the plaintiffs
have amply met their burden to present a story that holds together.
2.

Reasonableness

Cicero also argues that the plaintiffs have not plausibly alleged that the
observation of their genitals was unreasonable, as required to state a claim under the

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Fourth Amendment.
Determining whether a search is reasonable is a highly fact-intensive and
context-dependent inquiry. "[R]easonableness is generally assessed by carefully
weighing the nature and quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interest alleged to justify the
intrusion." County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017) (internal
quotation marks omitted). The plaintiffs have alleged that they reasonably expected
privacy while using the bathroom and that it was unreasonable for male employees of
the facility to look at their genitals in the process. The Court cannot rule on those
allegations without weighing facts, including the injury to the plaintiffs and Cicero's
penological interest in the configuration of the facility, which are not before the Court.
That inquiry would be improper at this stage of the litigation. See, e.g., Taylor v. City of
Chicago, No. 09 C 7911, 2010 WL 4877797, at *3 (N.D. Ill. Nov. 23, 2010) (holding that
the reasonableness of a seizure was "a fact-bound inquiry inappropriate for a motion to
dismiss").
Cicero also cites Johnson for the broader proposition that courts may not
intervene in the management of jails and prisons by second-guessing the
reasonableness of their policies. As the Seventh Circuit put it, "if courts assess and
compare these costs and benefits then judges rather than wardens are the real prison
administrators." Johnson, 69 F.3d at 144. The Supreme Court has similarly held that
courts owe prison administrators significant deference. See Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 566 U.S. 318, 322-23 (2012) ("[C]ourts must defer to
the judgment of correctional officials unless the record contains substantial evidence

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showing their policies are an unnecessary or unjustified response to the problems of jail
security.").
Johnson and Florence do not require dismissal of the complaint in this case,
however. First, as discussed above, the plaintiffs are arrestees who have not yet
undergone a probable-cause hearing and who are therefore entitled to broader Fourth
Amendment protections than the plaintiffs in Johnson and Florence. In addition, those
cases centrally relied on the judicial prerogative to combat "endemic" violence within
jails and prisons. Johnson, 69 F.3d at 146. Unlike in Florence, there is no factual
record in this case against which to evaluate Cicero's alleged penological interests; the
Court cannot adjudicate the merits of Cicero's arguments on the face of the complaint
alone. Although it is true that the federal judiciary is not in the business of administering
municipal detention facilities, the plaintiffs have alleged facts that make it plausible that
Cicero is not entitled to the deference it seeks, and dismissal is therefore improper.
Conclusion
For the foregoing reasons, the Court denies the motion to dismiss [dkt. no. 20].
The case remains set for a status hearing on October 23, 2018 for the purpose of
setting a discovery schedule.

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MATTHEW F. KENNELLY
United States District Judge
Date: October 19, 2018

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