Leoncio Elizarri, Ronald Richardson v. SHERIFF OF COOK COUNTY, ILLINOIS, and COOK COUNTY, ILLINOIS

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1522
LEONCIO ELIZARRI, RONALD RICHARDSON, and GRZEGORZ
ZAWADOWICZ, individually and on behalf of a class,
Plaintiffs-Appellants,
v.
SHERIFF OF COOK COUNTY, ILLINOIS, and COOK COUNTY,
ILLINOIS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 C 2427 — Joan B. Gottschall, Judge.
____________________
ARGUED APRIL 6, 2018 — DECIDED AUGUST 24, 2018
____________________
Before EASTERBROOK, RIPPLE, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. The theme of this constitu-
tional suit under 42 U.S.C. §1983 is that the Sheriff of Cook
County, Illinois, did not do enough to prevent guards and
other public employees from stealing or losing the belong-
ings of inmates at the Cook County Jail. New arrivals must

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2 No. 17-1522
surrender their possessions. There is no doubt that theft of
these belongings is a crime and a tort (conversion) under
state law, and a violation of the Due Process Clause (depriv-
ing prisoners of property with no process at all), but plain-
tiffs (a certified class) do not contend that the Sheriff person-
ally stole anything or even tolerated a known thief—and
none of the guards is a defendant.
Failure to prosecute thieves does not violate the Constitu-
tion. See Castle Rock v. Gonzales, 545 U.S. 748 (2005). Likewise
a guard’s negligent loss of belongings, while potentially tor-
tious under state law, does not violate the Constitution. See
Daniels v. Williams, 474 U.S. 327 (1986) (negligent loss of
prisoners’ property is not a constitutional wrong).
Still, plaintiffs insist, the Constitution imposes on the
Sheriff a duty to do something about excessive rates of loss.
The theory must be that keeping careless (or worse) employ-
ees on the staff, without implementing an adequate system
of quality control, violates the Constitution whether or not
any of those employees has violated the Constitution. We
need not decide whether this is a viable theory of liability.
A jury returned a verdict for the Sheriff. Evidence
showed that the loss-or-theft rate, while substantial, had
been falling as the Sheriff implemented additional controls.
The jury evidently concluded that the Sheriff had done
enough—had taken “reasonable measures,” in the language
of a jury instruction that we quote below. The district judge
denied the class’s post-trial motions. Plaintiffs do not con-
tend in this court that the evidence is inadequate to support
the verdict, and the litigants have not asked us to resolve the
underlying legal question—when, if at all, an organization is
liable under the Constitution for poor control of the employ-

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No. 17-1522 3
ees’ conduct. Instead the parties debate the accuracy of one
jury instruction and two evidentiary rulings.
The judge told the jury that the Sheriff could be found li-
able for violating the Fourteenth Amendment if:
1. There was a widespread custom or practice which allowed
plaintiffs’ property to be lost or stolen before it could be returned
to plaintiffs when they left the Jail.
2. The custom or practice was the moving force behind plaintiffs’
losses. A custom or practice is a moving force behind a constitu-
tional violation if the custom or practice was the direct cause of
the loss.
3. The Defendant [sic: the suit has two defendants, the Sheriff
and the County, but the instructions always use the singular]
was deliberately indifferent to Plaintiffs’ losses. To show “delib-
erate indifference,” the Plaintiffs must prove by a preponderance
of the evidence these two things:
(a) That the Defendant actually knew of the substantial risk
that the property storage practices in effect would cause a
loss of a Plaintiffs’ [sic] property; and
(b) The Defendant consciously disregarded this risk by fail-
ing to take reasonable measures to prevent such losses.
Plaintiffs now contend that part 3(b) was incorrect because it
set up an argument by counsel for the Sheriff that liability
was appropriate only if the Sheriff “purposely took no ac-
tion” in response to a known risk. Plaintiffs say that this ar-
gument misstated the law, because “unreasonable” action is
culpable along with “no” action and because conscious dis-
regard is not quite the same thing as purpose. See Farmer v.
Brennan, 511 U.S. 825 (1994).
Because counsel’s argument was wrong, plaintiffs insist,
the instruction must be wrong too. That’s a curious infer-
ence. The instructions themselves tell the jury what’s what. If

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4 No. 17-1522
a lawyer misstates an instruction—as plaintiffs say the de-
fense lawyer did—then opposing counsel can correct the er-
ror by pointing to the instruction. Judges routinely tell jurors
that the arguments of counsel cannot contravene the instruc-
tions or supplement the evidence. This is why plaintiffs need
to (and do) attack the instructions themselves, not just what
opposing counsel made of those instructions. Plaintiffs add
that because the Fourth Amendment (applied to the states
by the Fourteenth) can continue to apply during pretrial cus-
tody, see Manuel v. Joliet, 137 S. Ct. 911 (2017), the instruction
should have told the jury to use an objective standard rather
than any species of disregard or indifference.
But plaintiffs can’t get anywhere challenging the instruc-
tions, because plaintiffs’ counsel did not object or ask for any
different language about the required mental state. They
conceded that a jail is entitled to take custody of a prisoner’s
possessions. See Illinois v. Lafayette, 462 U.S. 640, 646 (1983).
They did not identify a Fourth Amendment claim in the pre-
trial order, which meant that it is not part of the case. If the
property disappeared, that was a problem under the Due
Process Clause, if it was a problem at all—and plaintiffs liti-
gated this as a due process case. They cannot change
grounds on appeal. Any claim under the Fourth Amend-
ment has been waived, not just forfeited.
Plaintiffs did ask the judge to give an additional instruc-
tion modeled on Pembaur v. Cincinnati, 475 U.S. 469 (1986),
which concerns how to identify an official policy that could
support municipal liability under Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978). (The Sheriff
has been sued in his official capacity and is treated as a mu-
nicipality under Illinois law when running the Jail.) The

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No. 17-1522 5
judge denied this request, stating that the other instructions
(including the one we have quoted) adequately covered this
topic. Another instruction said: “The Office of the Sheriff of
Cook County need not have formally approved the conduct
so long as Plaintiffs prove that a policy-making official knew
of the pattern and allowed it to continue.” The district
judge’s approach is a reasonable one.
Indeed, the Pembaur argument is a diversion, because
that case, like St. Louis v. Praprotnik, 485 U.S. 112 (1988), and
Monell itself, concerns the circumstances under which an or-
ganization can be liable for its employees’ violation of the
Constitution. Pembaur does not create the possibility of or-
ganizational liability in the absence of individual violations.
To the contrary, it is established that a municipality cannot
be held liable without an underlying violation of the Consti-
tution by a municipal employee. See, e.g., Los Angeles v. Hel-
ler, 475 U.S. 796 (1986); Swanigan v. Chicago, 881 F.3d 577, 582
(7th Cir. 2018). A distinctive feature of this case—and the
reason why we said earlier that we are not deciding whether
liability is possible even in theory—is that plaintiffs wanted
the jury to find the Sheriff liable without showing that any of
the Sheriff’s subordinates violated the Constitution.
Plaintiffs’ first argument about the evidence is that the
district court should have told the jury about Black v. Dart,
2015 IL App (1st) 140402 (2015). This decision holds (accord-
ing to plaintiffs) that Illinois law never provides inmates of
the Jail with financial remedies for lost or stolen goods, but
according to defendants it holds only that one plaintiff failed
to present his claim for compensation properly.
The dispute about the scope of Black highlights a contra-
diction in the Sheriff’s legal position. The Sheriff’s staff tells

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6 No. 17-1522
inmates that the state courts provide remedies for lost or sto-
len property, but, when ex-inmates sue, the Sheriff’s lawyers
tell the state judiciary that no remedy is available. That two-
faced approach is hard to justify, but state remedies are a
matter of state law rather than constitutional entitlement.
The Sheriff’s lawyers did not argue to the jury in this suit
that Illinois supplies a remedy for lost or stolen property, cf.
Parratt v. Taylor, 451 U.S. 527 (1981), and it was therefore un-
necessary for the judge to tell the jury that state law does not
provide a remedy (if that is indeed the right understanding
of Black).
The second argument about evidence concerns a pro-
posed spoliation instruction. Plaintiffs say that the Sheriff
created an electronic database holding information about de-
tainees’ property. The Sheriff introduced a database into ev-
idence, but plaintiffs insist that it is not the real one, or alter-
natively that there were two databases and that the Sheriff
produced only one. Plaintiffs asked the district court to tell
the jury that the Sheriff’s concealment of this second data-
base supports an inference that its contents would have been
adverse to the Sheriff’s position, for according to plaintiffs
this database would have shown the disappearance of 23,000
property bags that the Sheriff does not concede losing.
The district judge found the evidence insufficient to show
that any other database had existed and been destroyed, let
alone that it had been destroyed in bad faith for the purpose
of concealing evidence, a finding essential to a spoliation in-
struction. See, e.g., Rummery v. Illinois Bell Telephone Co., 250
F.3d 553, 558 (7th Cir. 2001). But the judge allowed plaintiffs’
lawyer to argue to the jury—despite the paucity of evi-
dence—that the Sheriff had concealed or destroyed inculpa-

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No. 17-1522 7
tory records. If there was an error, it favored plaintiffs. The
district judge did not abuse her discretion by declining to
put the court’s thumb on the scale in plaintiffs’ favor.
AFFIRMED

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