On January 27, 2006, on behalf of a male pretrial detainee, Chicago attorneys Kenneth N. Flaxman and Thomas G. Morrissey filed a civil rights class action lawsuit pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Illinois. The complaint, amended within days to add two additional plaintiffs and a third defendant, challenged the Cook County Sheriff's policy of subjecting each male pre-trial detainee to the non-consensual insertion of a swab into his penis to test for STDs as part of the jail admission procedure. In addition to being non-consensual, plaintiffs asserted that the insertion of a swab into each plaintiff's penis was conducted in a manner reasonably calculated to spread disease: the person who inserted the swab into each plaintiff's penis wore the same pair of rubber gloves when he inserted a swab into other pre-trial detainees' penises. Plaintiffs alleged that this practice violated the Fourth and Fourteenth Amendments. They sought monetary damages and class certification. Named as defendants were Cook County, the Sheriff of Cook County, along with the Director of Cermak Health Services ("Cermak"), an operating unit of the Cook County Bureau of Health which supplied the medical technicians that performed the STD tests.

Defendants denied the allegations and claimed that as plaintiffs consented to the procedure, the suit was barred. The individually named defendants also pleaded the defense of qualified immunity.

The District Court (District Judge David H. Coar) certified the case as a class action on December 14, 2006. The class was defined as: "all male prisoners at the Cook County Jail who, on and after January 27, 2004, were subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail." Jackson v. Sheriff of Cook County, 2006 WL 3718041 (N.D. Ill. Dec 14, 2006).

Discovery ensued and the parties filed cross-motions for summary judgment. All motions for summary judgment were denied by order dated March 23, 2007, as the court found that there were material facts still in dispute that prevented entry of judgment on all of the claims. Judge Coar, however, dismissed the claims against the director of Cermak, finding that Cook County was ultimately responsible for the policies of Cermak. Jackson v. Sheriff of Cook County, 2007 WL 917388 (N.D.Ill. Mar 23, 2007).

The case was set for trial on June 18, 2007. The parties filed their joint pretrial order on April 27, 2007. On May 18, 2007, the Court held a pretrial conference and ruled on motions in limine. Following the Court's ruling on the motions in limine, counsel for the parties engaged in settlement negotiations and agreed to a resolution of all claims.

A Settlement Agreement was reached on July 17, 2007, and submitted to the District Court for preliminary approval. Under the Settlement Agreement, defendants agreed to establish a Settlement Fund in the amount of $4.575 million. From that Fund, each named plaintiff was to receive an incentive award of $25,000.00. Attorneys' fees not to exceed $1 million and costs and administration fees not to exceed $300,000 were also to be paid from the Fund. The remaining $3.2 million was to be divided among the number of class members who timely returned claim forms. The parties did not believe that more than 32,000 claims would be made, yielding at least $100 per claimant.

A fairness hearing was set for October 31, 2007. We have no information regarding further activity in the case.

Dan Dalton - 02/25/2008


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