Harper v. Sheriff of Cook County

• Decision Date: 08 September 2009
• Docket Number: No. 08-3413.,08-3413.
• Citation: 581 F.3d 511
• Parties: Robert HARPER, Plaintiff-Appellee, v. SHERIFF OF COOK COUNTY and Cook County, Illinois, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

581 F.3d 511

Robert HARPER, Plaintiff-Appellee, v. SHERIFF OF COOK COUNTY and Cook County, Illinois, Defendants-Appellants.

No. 08-3413.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2009.

Decided September 8, 2009.

Kenneth N. Flaxman, Attorney (argued), Chicago, IL, for Plaintiff-Appellee.

Maureen O. Hannon (argued), Office of the Cook County State's Attorney, Chicago, IL, for Defendants-Appellants.

Before BAUER, SYKES and TINDER, Circuit Judges.

BAUER, Circuit Judge.

This case involves a confused and confusing class action lawsuit that we put to rest today. Robert Harper sued the Sheriff of Cook County, claiming that when new detainees are remanded to the Sheriff's custody after a probable cause hearing, they are unconstitutionally required to undergo certain intake procedures at the Cook County Jail before being allowed to leave on bond. The district court certified Harper's class, a decision that the Sheriff appeals. We agree with the Sheriff that this is not an appropriate case for class disposition and vacate the decision of the district court granting class certification.

I. BACKGROUND

Harper was arrested by a Chicago police officer on the evening of September 29, 2005. The next day, he was brought before a judge around 1:00 p.m. for a probable cause hearing. The judge found probable cause, set bond at $15,000, and remanded Harper to the Sheriff's custody. Harper claims that his wife attended the probable cause hearing and immediately sought to post cash bond, but was not permitted to post bond until sometime after 4:00 p.m. Harper was released from the Sheriff's custody around 11:00 p.m.

When a detainee returns to the Cook County Jail after a probable cause hearing, he is placed in a bull pen and begins to be processed into the jail. This involves assigning the detainee an identification number, taking his picture and fingerprints, collecting any property carried by the detainee, conducting a personal history interview, performing a psychiatric screening, assigning the detainee to a division within the jail, conducting a medical examination, and a strip search.

Family members or friends who want to post bond for a detainee do so, not with the Sheriff, but with the Office of the Clerk of the Circuit Court of Cook County. The Sheriff's policy directs that "[i]nmates who have their bond posted while going through the intake process are moved ahead of the other inmates in order to speed up their release.... In some instances, the psychiatric interview and the medical examination are eliminated." Before releasing a detainee, the Sheriff takes a number of steps to ensure that he is releasing the right person. This process includes checking the detainee's photograph, comparing the detainee's fingerprints with those taken during the intake procedure, and requiring the detainee to provide answers to personal questions that were asked during the prior personal history interview that only the detainee should know.

Harper brought this action to challenge his detention and treatment in the jail. In his complaint, Harper explained that he "was required to submit to the processing required by the Sheriff's policies of a person being admitted to the Cook County Jail while plaintiff's family members posted cash bond." He went on to describe the processing, which "began with placement into an overcrowded and unsanitary animal cage, and include a chest x-ray, the non-consensual insertion of a swab into plaintiff's penis [to test for STDs], the non-consensual taking of blood, and a strip search which was conducted in a manner calculated to embarrass and humiliate."

In his motion to certify the case as a class action, Harper sought to represent "[a]ll persons who were processed into the Cook County Jail on and after May 2, 2005 while persons acting on behalf of the arrestee sought to post cash bond." He later changed his proposed class definition to "[a]ll persons processed into the Cook County Jail on and after May 2, 2005 while that person, or someone acting on his (or her) behalf, sought to post cash bond." The district court granted Harper's motion to certify the case as a class action, but found that Harper's proposed class definition was too broad and ordered him to provide a new class definition within fourteen days. We granted the Sheriff's petition to appeal from the order granting class certification according to Federal Rule of Civil Procedure 23(f).

II. DISCUSSION

To certify a class, a district court must find that each requirement of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) is satisfied as well as one subsection of Rule 23(b). "Failure to meet any of the Rule's requirements precludes class certification." Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir.2008). In this case, Harper claimed, and the district court agreed, that his class action satisfied Rule 23(a) and Rule 23(b)(3) (predominance of common issues and superiority of the class action format). On appeal, the Sheriff claims that none of the Rule 23(a) prerequisites for class certification were met and that Harper's proposed class also failed to meet the requirements of Rule 23(b)(3), so the district court should have denied class certification. We review a district court's decision to certify a class for an abuse of discretion. Arreola, 546 F.3d at 794.

A. Jurisdiction

Before getting to the substance of this case, we address a jurisdictional issue. Rule 23(f) states that "[a] court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed ... within 10 days after the order is entered." The Sheriff followed this procedure and we permitted the appeal. However, Harper claims that the district court's order was not the appealable order contemplated by Rule 23(f) because it did not define the class as required by Rule 23(c)(1)(B), and that, consequently, we do not have jurisdiction to consider the Sheriff's appeal. Harper is correct that the district court did not define the class as it should have, but that does not deprive us of jurisdiction.

There is no doubt that the district court certified the class. Its order states: "Plaintiff's Motion to Certify Case as a Class Action is granted." This allowed the Sheriff to seek permission to file an interlocutory appeal. Harper argues that the Sheriff was required to wait until a new class definition was submitted. But Harper was charged with that responsibility and the Sheriff had only ten days in which to seek permission to appeal. The Sheriff waited as long as he could and acted properly.¹ Furthermore, the propriety of resolving Harper's proposed class issues through the class action format, which goes to the heart of this appeal, is not dependent on the subtleties of the class definition.

B. Class Certification

Next, we must decipher what Harper is complaining about in order to determine whether his claim is suitable for disposition through the class action format. As the Sheriff notes, Harper's claim has been a moving target throughout this litigation. Harper's actual complaint makes it seem that he is seeking to challenge the specific intake procedures utilized by the Sheriff such as the strip search and STD test. Harper's deposition testimony confirms that he was offended by these two procedures. But Harper assured us multiple times at oral argument that this case is not about searching and swabbing, and we take him at his word. If these were his claims, this case would be duplicative of two other class actions challenging these procedures at the Cook County Jail. Young v. County of Cook, 06 C 552 (strip search); Jackson v. Sheriff of Cook County, 06 C 493 (STD testing).²

Failing to take issue with any particular intake procedure, Harper is left with a claim that the Sheriff is unconstitutionally holding detainees after bond has been posted.³ But the constitutionality of this detention depends on whether the length of the delay between the time the Sheriff was notified that bond had been posted and the time that the detainee was released was reasonable in any...