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Seventh Circuit Again Rejects Challenge to Three-Book Limit at Cook County Jail by Now-Dead Detainee

David M. Reutter

On April 6, 2023, the U.S. Court of Appeals for the Seventh Circuit affirmed dismissal of a suit filed by a pretrial detainee challenging the contraband policy at the Cook County Jail (CCJ) in Chicago, after guards took and destroyed approximately 30 of his books.

The lawsuit was filed by Gregory Koger, who has since died. He was serving a 300-­day sentence at CCJ on October 5, 2013, when guards searched his cell and found 42 books and magazines received through the mail, far exceeding the jail’s three-­book limit. Koger had been warned of the search and that any property in excess of the policy would be confiscated. He also knew that searches were conducted in other cell blocks for this purpose. Yet he took no action to dispose of his excess books in advance.

After the search concluded and the excess books were confiscated, guards destroyed them. Koger sued, arguing that confiscation and destruction of his books violated his due process rights. As PLN reported, the case was dismissed, but the Seventh Circuit reversed and remanded that ruling in August 2018. The U.S. District Court for the Northern District of Illinois then dismissed his challenge to the book policy, finding it constitutional. [See: PLN, Jan. 2019, p.23; and Mar. 2020, p.43.] On appeal again, the Seventh Circuit didn’t take issue with that finding, but it said application of the policy violated Koger’s due process rights, in a ruling handed down in February 2020. See: Koger v. Dart, 950 F.3d 971 (7th Cir. 2020)

Koger, who by then was no longer incarcerated, died at home alone the next month, in March 2020. But he was already in settlement talks with defendant CCJ officials, so his Chicago attorneys, Mark G. Weinber and Adele D. Nicholas, persuaded the district court to substitute as Plaintiff the administrator of his estate, Brian Orozco. That same court then dismissed the case in November 2021, finding no due-­process violation because “Koger was on notice of the three-­book rule in the Handbook, was given multiple in-­person warnings, and had opportunities to divest himself of his excess books through various means.” Plaintiff appealed once more.

The Seventh Circuit agreed that “Koger had a continuing property interest in the books, even if the three-­book policy deemed them contraband.” But the higher court said the analysis turned on whether Koger was provided sufficient due process. Noting that Koger was aware of the three-­book policy and that he could send the books out, give them to another prisoner or donate them, the Court said “[i]nstead, Koger chose to retain his excess books after the Jail staff warned him of the impending search and confiscation.”

Koger also failed to file a grievance on the matter, the Court continued. And it was apparent that he violated CCJ policy—whose constitutionality was upheld because requiring CCJ to store excessive property “would unavoidably entail additional administrative oversight and expense” that the Court found unnecessary. Since “Koger had an adequate chance to protect his property interest,” the district court’s decision was affirmed. See: Orozco v. Dart, 64 F.4th 806 (7th Cir. 2023).  

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Related legal cases

Orozco v. Dart

Koger v. Dart