Adair et al v. Town Of Cicero

Filing 90

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 7/3/2019: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court certifies the following class under Federal Rule of Civil Procedure 23(b)(3): a ll female detainees who were or will be in the future detained at the Town of Cicero Police Department lock-up facility for eight hours or more during the time period of May 18, 2016 to the present. The Court appoints attorneys Adele D. Nicholas, Ma rk G. Weinberg, and Richard Dvorak as class counsel. The status hearing set for August 13, 2019 is vacated and advanced to July 22, 2019 at 9:30 a.m. The parties are directed to confer regarding the form of an appropriate notice to the class and are to file a joint status report including a joint proposal or separate proposals by July 18, 2019. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LESIA ADAIR, ANITA DONATO,
JORDAN GARCIA, VERONICA
GARCIA, and ARECELI VEGA,
on behalf of themselves and
others similarly situated,
Plaintiffs,
vs.
TOWN OF CICERO,
Defendant.

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Case No. 18 C 3526

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs are five women who were detained at a lock-up facility operated by
the police department of the Town of Cicero. They have 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 contend 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
constitutes an official policy that causes male lock-up employees to engage in
unreasonable searches in violation of the Fourth Amendment to the U.S. Constitution.
The plaintiffs have moved to certify a class of similarly situated individuals. The
proposed class would comprise "all female detainees who were or will be in the future
detained at the Town of Cicero Police Department lock-up facility for eight hours or

more during the time period of May 18, 2016, to the present." Mot. for Class Cert., dkt.
no. 57, at 1. They seek class certification under Federal Rule of Civil Procedure
23(b)(2) and (b)(3).
Cicero's sole argument against class certification is that the plaintiffs have not
introduced evidence to substantiate their claims under the Fourth Amendment.
Specifically, Cicero argues that the configuration of the lockup facility did not allow
guards or other inmates to view female inmates while they used the bathroom. Cicero
has submitted photographs that it contends show that a thirty-six-inch-long brick wall
blocks any direct view of a person using the toilet. It also points to a video recording
which, it contends, demonstrates that the surveillance camera did not offer a view of the
plaintiffs' genitalia. Finally, it has submitted numerous declarations from police officers
who worked in the facility who state that they never intentionally or unintentionally
viewed female inmates' genitals.
Cicero's argument does not constitute a basis on which to deny class
certification. It is true that in some cases a court may have to delve into the merits of a
plaintiff's claims to resolve a class certification motion. See Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350–51 (2011) (noting that the class certification analysis
frequently "entail[s] some overlap with the merits of the plaintiff's underlying claim"). But
the Supreme Court has explained that when "the concern about the proposed class is
not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged]
failure of proof as to an element of the plaintiffs' cause of action—courts should engage
that question as a matter of summary judgment, not class certification." Tyson Foods,
Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047 (2016). And the Seventh Circuit has noted

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that "certification is largely independent of the merits . . . and a certified class can go
down in flames on the merits." Beaton v. SpeedyPC Software, 907 F.3d 1018, 1031
(7th Cir. 2018) (alteration in original); see also Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) ("[T]he court should not turn the class
certification proceedings into a dress rehearsal for trial on the merits.").
Cicero's arguments about the viability of the class's claims do not warrant denial
of class certification because its arguments concern the merits of the claims of the class
as a whole. Indeed, Cicero contends that the evidence regarding the layout of the
facility and the scope of the surveillance footage categorically defeats the entire class's
claims. Cicero's arguments are thus appropriately considered at the summary judgment
stage, not during class certification proceedings.
The Court must consider one additional issue with the plaintiffs' motion that
Cicero has not raised. The plaintiffs seek both injunctive and monetary relief, and they
have moved to certify the class under Rule 23(b)(2) and (b)(3). But because the
plaintiffs seek both an injunction and damages, certification under Rule 23(b)(2) alone is
proper only if the damages are "incidental" to the requested injunctive relief, meaning
that damages "do not depend in any significant way on the intangible, subjective
differences of each class member's circumstances." Lemon v. Int'l Union of Operating
Eng'rs, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000) (internal quotation
marks omitted). In this case, however, subjective differences among the class
members, including the length of their detention and the degree of invasiveness of the
alleged searches, may give rise to different damages across the class. The Court
therefore concludes that the appropriate course is to construe the certification motion

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under only Rule 23(b)(3), which allows the plaintiffs to pursue both equitable and
monetary relief while avoiding the potential due-process problems with certification
under Rule 23(b)(2) (under which class members typically may not opt out). See id.
(holding that certification under Rule 23(b)(3) is appropriate if the putative class seeks
both an injunction and money damages).
The Court concludes that the proposed class satisfies Rule 23's requirements for
class certification. There are four requirements under Rule 23(a) for all proposed
classes: numerosity, commonality, typicality, and adequacy. Priddy v. Health Care
Servs. Corp., 870 F.3d 657, 660 (7th Cir. 2017). First, based on a random analysis of
six months of detention records, the plaintiffs estimate that the class comprises between
500 and 600 detainees, making it sufficiently numerous under Rule 23(a)(1). See
Fauley v. Heska Corp., 326 F.R.D. 496, 504–05 (N.D. Ill. 2018) ("[A] class of forty is
generally enough to certify a class."). Second, the class shares common questions,
including factual questions about the facility's layout and legal questions about whether
the alleged monitoring constitutes an unreasonable search. Third, the named plaintiffs
are typical of the class because they were each detained for at least eight hours and
had to use the facility's toilets. Their claims thus "have the same essential
characteristics as the claims of the class at large." Lacy v. Cook County, 897 F.3d 847,
866 (7th Cir. 2018). And fourth, the named plaintiffs are adequate class representatives
for largely the same reason: they are "part of the class and possess the same interest
and [have] suffer[ed] the same injury as the class members." Conrad v. Boiron, Inc.,
869 F.3d 536, 539 (7th Cir. 2017).

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The proposed class also meets the predominance and superiority requirements
of Rule 23(b)(3). Common issues of law and fact predominate because "the proposed
class's claims arise from a common nucleus of operative facts and issues." Beaton,
907 F.3d at 1029. The only issue for which different class members may require
separate proof is the calculation of damages, but the Seventh Circuit has held that "the
need for individual damages determinations at [a] later stage of the litigation does not
itself justify the denial of certification." Mullins v. Direct Dig., LLC, 795 F.3d 654, 671
(7th Cir. 2015). And a class action is the superior method for adjudicating this dispute
given the size of the proposed class and the cohesiveness of the class members'
claims. See Messner, 669 F.3d at 814 n.5 ("There are so many common issues of law
and fact relating to the issue of [the defendant's] liability, however, that the superiority
requirement likely poses no serious obstacle to class certification here.").
Finally, the Court finds that the plaintiffs' attorneys will fairly and adequately
represent the interests of the class because they have investigated and identified the
claims in this case, possess sufficient experience and knowledge, and have adequate
resources to appropriately litigate the case. See Fed. R. Civ. P. 23(g)(1).
Conclusion
For the foregoing reasons, the Court certifies the following class under Federal
Rule of Civil Procedure 23(b)(3): all female detainees who were or will be in the future
detained at the Town of Cicero Police Department lock-up facility for eight hours or
more during the time period of May 18, 2016 to the present. The Court appoints
attorneys Adele D. Nicholas, Mark G. Weinberg, and Richard Dvorak as class counsel.
The status hearing set for August 13, 2019 is vacated and advanced to July 22, 2019 at

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9:30 a.m. The parties are directed to confer regarding the form of an appropriate notice
to the class and are to file a joint status report including a joint proposal or separate
proposals by July 18, 2019.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: July 3, 2019

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