morning your honor is michael does he on behalf of the appellant your honor if i may i'd like to reserve three minutes for rebuttal may i please the court your honors this is a case that alleges on lawful and unreasonable strip searches being conducted at the wayne county jail by a number of female inmates and miss sumter who i represent and is my client brought these claims and behalf of a punitive class seeking to hold wayne county responsible both for its policy and customs theory and she also brought individual claims against an individual officer by the name of defendant deputy graham i'd like to start with the qualified immunity question i guess the easiest way to say it would be if you asked the wrong question you get the wrong answer and in my estimation that is what the district court did in this instance the district court simply found that there was no clearly established law that would entitle my client to a strip search in private by a member of the same sex and u s supreme court's been pretty clear lately about being careful in talking about clearly established laws not jumping too high in the ladder of abstraction the year and so what is the clearly established law when you have group strip searches and you have a legitimate reason or at least they offer this particular reason with the case that says this reason getting people to medical screening promptly doesn't suffice well your hon the clearly established law is that if you conduct group strip searches it can only be where others would have particularize need or there'd be a circumstance in which these other passer bys are inmates or male guards would have a reason to see the female inmates in a state of undress that's the clearly established law now but more importantly in this case we have a whole host of allegations about the unprofessional conduct in nature on the group searches point well what's the one i site agree with me that the rule is this normally no group searches but you can have group searches if you have a legitimate reason that's the rule that's i agree with that it's a what's the case that says getting people promptly to medical screening is not a legitimate justification for the call that there isn't a case that says that a prompt medical screening but in this instance it's not just medical screenings it's every time an inmate goes in or out of the jail they're subjected to the strip searches so whether they have a visit by a family member whether they go to court or whether they go to a medical screening but the more important aspect of the allegation in my opinion is that these groups these groups are churches were being occurred were occurring in a room where these women were naked a lot of these girls were on their menstrual cycles there was bodily discharges on the floors the girl said that there was blood on the floor as they were made to bend in coffee and there were bodily fluids discharging from the women and they were in close proximity they could see each other so i don't believe you can just separate out the fact that it's a group strip search there's also the conditions under which the current now in two opinions in this courts and two opinions that have been issued by this court both the stoudemire opinion and then also the opinion of williams her city of cleveland which judges griffin and judges clay were on that panel and the williams versus city of cleveland case this court made it clear and judge griffin wrote that opinion that conducting strip searches in the presence of other people who don't have a need to see arm is unconstitutional i understand your point you're on which is well maybe there's an instance in which this was reasonable because they had they had to do it that way but i don't think you can separate that out from the manner in which this was occurring they were calling these girls bleeding hogs they were saying i take your calls i don't care if you're bleeding like a hog i don't think there's any circumstances in which that could be envisioned to pass any clearly established law and the six circuits precedence is that if the law is clearly established the general contours of constitutional law are clearly established then you can rely on the general contours and both the williams case and the stoudemire case this court trick the inmates and a state of undress but when you look at the totality of how these searches were being conducted i don't think you can reach the conclusion that they had a reasonable justification for doing it this way and the other point that i would make in response to your next question is they implemented a policy that said ok we're going to start doing it in private so that would prove the point that they were able to do it in private now there's also record evidence that shows that the strange would you admit proves you're wrong well but  doesn't go both ways does it well i think my clients changes while i agree it could cut it could cut against the claims that my clients are bringing claims that occurred since two thousand and nine well before the defendant claims to have voluntarily ceased his practice now i've also offered record evidence which shows that the voluntary cessation is also challenged i have affidavits from inmates who said that they were strip search after wayne county implemented the policy changed to say ok we're going to do these in private now out of the presence of other people so my problem with how the district court handled this is he ignored all of the unprofessional comments asking these girls what how big their breasts were commenting on their sexual orientation this is repulsive it's repulsive and it doesn't pass any constitutional standard for what should be deemed reasonable under the circumstances so i've given you a chance to respond to my clearly established point and i think you're focusing on the facts but you understand my concern and you can deal with it how you wish my second concern relates to the claims about men watching all right so i would call those claims against male officers like what are they doing there why are they doing this and what's strange about the way the case came to us is we don't know the identity at denny's of any of these male officers i mean normally when you have a policy or failure to train case it has two pieces to it you've got a claim against an individual officer you have a claim about it you know it's usually qualified immunity setting but there's a constitutional violation by that officer and then on top of that you have the man al claims such usually the way these cases calm and that's not required but what's odd to me about it is that we don't have the names of any of the officers assigned or stand it and why so that's a little bit of a complaint by me but i also have a suggestion why why don't we isn't that the point of exhaustion why would we allow the  your clients to use the administrative procedures in the grievance process with the prison to try to figure out who these officers were which just seems like it would but the case in a much better you're setting for a resolution here i'd like to address that your honor first my client was not incarcerated so the prison litigation reform act does not apply period in the case as a class action it's a it's a class action brought by a plaintiff who is not incarcerated now that question was never answered or ever dressed by the district court but there is case law which  only attaches to the named plaintiffs if the name plaintiff is not incarcerated for what it's worth and this is supposed to help you you can treat it as a hostile question but it's very strange not to have the identities while the misbehaving officers because it puts the prison in a funny position they're supposed to say well there were one hundred ploys at the time we're supposed to show that not any one of them did this well here here's here's the problem your honor these ladies are they're being strip searched in a ward and these are these are like two  windows with sort of a disk or a dark tent on the window so the men would come into the ward they would begin strip searches and then the women deputies would say ok the men you step out they would step out and they would be on the other side of the windows so my client has said the men were in there now can she identify who the person is no and she wasn't incarcerated so there never was any grievance issue because she didn't have to file any grievances or comply with any provisions of the p r a but the same thing with a lot of these girls if they're in this if they're in this room i'm not i'm not at this point i'm not making a technical point i'm just saying it's always a good idea to know who the misbehaving people are so why not use discovery at a minimum to say ok this is when i was processed who are the guards on the mail guards on duty well this is what we haven't discovered number one discovery was incomplete number two this is what discovery tells us we have these reports of strips want to complete discovery i'm sorry would you like to complete this well i believe it would it would add clarity to this particular question but there are reports that show there were let's say eight officers that were involved in the strip search now which of the eight were in there in the bubbles on the other side of the wall so we don't know but we know that all of the girls or at least a handful of the girls that were in the room according to the strip search report they all testified by affidavit to the same facts they said hey these guys were standing here watching us we were all naked lined up and the male guards simply went outside how can they give a name to those male guards no they're standing here naked they're trying to cover themselves and there is a wall in these windows in which they can see through my clients and look i'm certain the male deputies were seen or i could see their silhouettes we could hear their voices often many of these women testified that these men would laugh at them they'd mock their bodies they'd make comments about them and i offered three hundred affidavits one hundred fifty five of which these women said these men were looking at us i could see them and they were there some of them said they touched but regardless of the differentiations between the women's affidavits one hundred fifty five of the women said the men were present they could see us when we were naked now this court held way back in the one nine hundred eighty s in the cornwall case that the forcible exposure of inmates to members of the opposite sex states a valid constitutional claim it's the same claim that we have here the city of canton says you don't have to name an individual if i'm not able to identify the individual i don't believe i should be faulted for that if the municipality itself is responsible for the policy in the custom which is what i'm alleging then we should proceed with the mono claim but for the district court to simply say there's only one instance it's just absurd there's three hundred affidavits of all of these different derogatory comments these women talking about one of them said i could feel her breath on my vagina these are i mean these are r repulsive instances of what's going on and that is your course simply ignored that and said well there is only one instance of my client my client only testified to one instance well that might be true but she certainly entitled to marshal all of the other evidence before the court in response to the summary judgment on the mono claim now it may be that will learn the specific identities of who may have been standing out there later but we may not but in either event i don't believe that that that is something that precludes my client's claims in the least so i'm the mono clenches if you can this is the case you mention that says you just don't need to identify individual i realize you can bring john doe claims but that's not what you've tried to do right now i didn't bring john doe claims you write in city of canton says that you can still you can still recognize municipality municipality liability even without naming a particular individual defendant and there's other circuits that have followed that and i've cited that page ten of my reply brief it cites the different cases in courts that have said i get the idea  not to name them as defendants but how about identify individuals doing something improperly but we've identified that the men were out there the fact that we can identify the specific name and we we don't name them as individuals i don't believe it's any procedural defect of my client claims so you claim can as your case for saying that well city of can i cite that and i also have a first circuit case wilson versus town of mend in which the court said there's nothing to prevent a plaintiff from foregoing the naming of an individual officer as a defendant and proceeding directly to trial against the municipal the same thing in the fifth circuit peterson versus city of fourth were fort worth these are cases which hold that you can proceed on the municipality claim just you've read the case i haven't read those cases but just to be clear what i'm saying i get the idea they don't want to be named as defendants are you saying in those cases it also didn't matter to the court that the plaintiff couldn't identify who the individuals were implementing the unconstitutional policy that's the questions i do see that my time is up at the court would like me to answer the question certainly your honor those cases essential what they did what they say is that you can pursue the mono claim without naming the individual person who is the culprit if the crux of the claim is that the municipality they fostered this policy or custom is that's what we're claiming is that wayne county was allowing these men to stand around gawked at the women mock them make comments about them it doesn't matter if you name one two three ten of the men that may have been standing out there when county was allowing it to if i thought in her deposition she does claim monetary or her complaint states that she's seeking monetary damages it so there may be a question about whether she wants something personally but she still entitle to prosecute the class claims and if there is a an award of punitive damages against the defendants whether she wants any particular part of that or not she still seeking punitive damages which is applied in her complaint to the district injunctive relief the district court found that my client's claims were moved but moving this is different from standing the supreme court told us and friends of the earth that you can't confuse the doctrine of mood is with standing is this not simply standing frozen in time otherwise you would never as up here as they would in writing in on a lot of these issues but i want to make the point that at this point of the case we're only dealing with amanda sometimes claim we're not dealing with the class claims we're dealing with what happened to amanda sumpter in so what may happen amanda sumpter is not what a lot of these a lot of the affiance at here on vallium v o c facility have said amanda sumpter was strip searched three times routinely inmates are strip searched coming in and out of the jail so when you go to court the practice by corporal terry graham terry graham you know testifies like and this is does nothing really to refute this is that is that the norm was an individual strip search and the only reason more than one was done was because a volatile now wayne county done in such a way that those who were scheduled for some sort of subsequent medical evaluation that those were those searches were done first that those would be not that everybody would be strip searched and this huge group of people with them without regard to the scheduling of the individual in my why not extradite the ones  that were in urgent need of medical evaluation or whatever needed to be why throw everybody into the pond we're going to get that's a good question well the vast majority of people that are strip search again the two major people groups of people or people come into the jail for the first time ok so they're coming in from corridor off the street or something like that or you have people come back for or you have people come back in court ok so that is that's the two main group of people so everybody who comes into the jail is medically screened everyone the matter whether you have an urgent apparent need or you have not an urgent apparent need so the idea is that when volume is high on a particular day or a particular time of the year the idea is that everybody in the but what they call the bullpen bullpen waiting to get strip search has to see medical regardless of the severity i mean if for example the inmate needed immediate medical attention to go to the hospital immediately but when people are coming in for the first time that is probably the most important time you have to strip search them and we can't let inmates into the facility with any sort of outside contraband or things there are that are banned in the jail and thence you know because what they have to get cleared and then they go up to medical because medical is a part of the it's a different floor of the same facility so the creation record that there was another shift coming up some could have been deferred to the next shift if needed but the people who urgently needed to go could have been done right away and screened or as opposed to later some would say you know they did some would manifest symptoms some would have prescriptions that need to be filmed there's a way to differentiate i would i would imagine the professionals there who know how to manage the intake of inmate isn't that what you're doing now with the change policy yeah i mean that's obvious that someone someone is deciding that this person needs to be searched more quickly because they obviously need medical screening right away well that's actually not what's happening what's happening is that since the since the policy was changed you know corba telegram's not the only person does there's other shifts in other people so she's it's been sort of singled out of the staff of people who do it but what's happening now is that they're trying to do into doing individual ones right and it's causing massive massive backups just like so people instead of wait in the bullpen half hour forty five minutes or waiting there all day sometimes you know when volume is high so when corporate telegram has forty people on a day to do confines of the way to facility a set up in our volumes and you know there might be an issue of you know when kind of money in general but that hasn't really been in the record of this case or shown to impact anything in particular so one of the things you is that the misbehaving male officers have not been identified yes why why would it be appropriate to send the case back to the district court and then through you know some form of administrative exhaustion go back to try to figure out through the internal grievance process who these officers were well the first point is that we have found no grievance at all filed by any wayne county inmate about the strip searches so raising i think a fair point would would have the names of these people why not try to use a process that can figure out who these people are usually the state doesn't oppose exhaustion we were i forgot was going to say in private more direct response to what you're asking is a discovery is long over long long over this case this is not like this we pulled the trigger that all this was was filed after discovery was long completed and we turned over the names of every male who worked on the floor every male deputy worked on the general floor that day ok it was a pool of people a camera how many it were it might have been eight or ten or twelve it was some group of people now i don't know if you know obviously doing county jail is kind of difficult you know environment difficult architecture to explain so you have almost like a you have wards on four corners which are l shaped you know running along the walls and then you have a center part of the floor were a lot of with a lot of the deputies do paperwork and things like that right so only the these l's in the corner can see into the ward ok but everybody who's working on the inside cannot vary so the way the width of the way that wink the official wayne county jail policy is that when strip searches are done they are done by female officers did their announced that they were doing them in any e mails that would be on the floor like when we try to staff the female floor with only female that bodies but given staffing shortages sometimes you need male deputies on the floor so when the strip searches are done all the males go to the center office area where it's impossible to city but what's going on in the ward you know i know the policy is gloriously constitutional but the point of all these affidavits is that that's not what they're doing well i mean  i don't know of since we didn't argue this below in brief the below i don't know of those three hundred which which numbers are going to the cell block search so give me the names of the people who are supporting jeanine or  block search then that kind of narrows it down but when the three hundred affidavits are they don't with already there were were offered only on this issue if you look at look at the summary judgment brief you can see how this argument plays out plays out that we're talking that the of brief we can show you the sites we cite exactly in the brief we raise the argument and where the plaintiff was back in response to it so i thought that these affidavits were going in this direction and now now these affidavits seem to be now you know relevant some other cl and so like i said if i were aware let's say let's say they have preserved this just to use your time productively what do we do with the affidavits when it comes to the now claim because with the force of them seems to be well yes you had a constitutional policy in name and in language but it wasn't being followed proof see affidavits of what looks assumed they are they preserve that argument what do we do with that i mean i guess that i for me to defend the that at that point i'll say maybe i'll take a trip to plenty michigan and deposed some of these people but that's not where the argument went i thought below we're heading into these affidavits that were focused on terry graham and his cell block searches like another argument but not the primary answering my question by saying it was forfeited and i said it wasn't forfeited assume below they said what they're saying now hey these affidavits prove that men were watching the female strip searches all the time and that was not in conformance with the policy therefore the policy by its terms wasn't being followed and therefore we consume in the now ok i mean i understand your honor like it's possible that if the connection were made they would be rolled for sure f burden or is it her burden you know so i can't see if it's a silhouette how she's supposed to know well i mean she can identify a tall person or maybe or around person or something or something a den of five will feature but it's an i don't know how to defend it you know what if in the hypothetical so i mean the idea that she makes the allegation and then i have to you know prove the case instead of her proving that somebody was there who it was now i have to you know it's been i guess it kind of just reverses the traditional burden of proof in this case  that trio all of those plaintiffs had a live in junk to play it like i was being affected by this when i filed the case but later circumstances happen and then sort of you know now my case became moot because i got released halfway through the case or you know i you know except but again i don't think that now that we've discontinued the policy has been discontinued for a long time and amanda something or was it incarcerated or affected by this policy when the case was and the other half is that her complaint does the monetary damages when she was deposed and they were they asked her about her damages and i asked her to specify what your damages one that's think it's only about sumter yeah i mean you know i think at least for her at least for her i mean i would imagine though that even if that's the other part of the case that isn't that's the case against individual officers she's suing for damages if she doesn't request damages they're out to so and are going would be damage claim would be out because she doesn't seek damages when they asked her tell me what your damages are i haven't done i mean isn't that the end of the case i mean i would think so i mean it was a money yeah i think that is a completely legitimate observation about this case and you know if her monetary claim is not going to exist then how could she represent a class of people also saying i don't know how at trial she can ask for whatever damages she's going to ask for when she says i don't really see the images and therefore when you ask me under oath to detail my damages i refused to do so because i'm not going there i don't want any yeah i agree that they think that's improved very important point that obviously was the twelve the six ocean we are holding there was it was a plausible claim that there were no circumstances interests by the of williams which makes a lot of sense to me is that the actual touching is important that the acts of the delousing agent was actually sprayed on people an embarrassing way is and that there could have been at the pleading stage maybe the jail in cleveland could have figured out will want to put it on herself you know which seems to me like that is a completely reasonable kind of sort of way the way to look at it we don't have any touching or anything like that going on in this case thank you your honors i'd like to address judge sutton's question about the forfeiture actually i have the cite on page twelve of my reply brief and i actually cite to my response to the summary judgment i say that the hundreds of affidavits of inmates testifying as the under reasonable manner of the strip searches either in the registry room or in the presence of men or both many of the c f to david's detail so it's a clear and i say here that i'm relying on those affidavits so there's really no issue of forfeiture in the fact that wayne county  suggest in your reply brief here it's in my reply brief here but i'm citing to what was cited what i cited in the district court in my response to summary judgment and the reason why one wayne county says well these affidavits about the men we that really is not  relevant the way that they framed their summary judgment motion was that there were that my client was only subjected to a single instance of being viewed by a man and so by me citing these what i was saying is look this is very very elementary to see that there three hundred affidavits nearly a thousand pages that tell you in front of men in front of men in front of men in front of men that refuted the argument as it was framed by wayne county as to the single instance that was the argument that wayne county was making not that it we deny that that happened so how can the court reach that issue in terms of a qualified immunity analysis or even the mono analysis for that matter but i did cite to the affidavits both in response to the claim that men were watching the women as well as the the searches in registry the other thing is your honor judge sutton your question about the medical the medical call outs and then the strip searches these affidavits also make clear that these women were being strip searched not just the women women that were being called out for medical so even if they had a legitimate reason for those inmates to get called out for medical to be strip search that doesn't address all the other hundreds of women who were saying they were being strip search going to and from court and having visits with family so it's not just the medical affidavit to refute that point your honor those are just individual i'm talking about the group strip searches it wasn't that it was only happening if someone was going to a medical call out even if there may be a legitimate reason for that these law from their normal policy which is individual strip searches they have to go to group searches just because of the volume but they change their policy so doesn't that prove the point that they were able that that was a that wasn't a expediency i refuted it your honor by arguing the same part and parcel that the uncut the unprofessional manner and the unsanitary conditions of the strip searches were all part and parcel of the reasonableness and one when the supreme court says and bell you have to look at the overall reasonableness i don't think you can extract that and then try to say well maybe the women that got called medical had a reason the other just the other point i want to make is rule twenty three the classification will the commentary makes clear that there's an expediency requirement and a lot of your honor ruling on a motion for class certification under rule twenty three the rule says that the court will expeditiously decide the motion and the commentary says the reason you have to do that is because there might be issues with certain plaintiffs there might be stash limitations or might be damage claims and that's the time that that's supposed to get figured out but that never happened because the court never would on the classification motion not withstanding the fact that it had been pending for nearly four years before the district court so a lot of your honor's questions those things could have been addressed had th e case ben at least addressed in the certification motions at the district court which never happened and your honor judge griffin asked the point about does it matter in the williams case that this involved touching actually your honor the opinion makes clear that it involved two prongs both the touching the ousting agents on the or on their body parts but also the fact that it was being conducted in front of passer bys or other inmates who had no legitimate reason to see the other inmates naked so that would be my answer to the to your honor's questions if you have amended the motion that motion was pending for nearly a year and then it was administratively terminated by the district court after that motion was terminated miss something or then filed the instant case to stand in the shoes of the class to file the claim and to proceed on the class claims her motion was also pending for more than a year the case was originally assigned to judge levy who had a status conference and also a hearing on the motion for and then for reasons that are completely unknown after having the hearing and ordering additional briefing after another six seven month delay then the case was reassigned to judge o'meara so between the the wedding to encase the motion for classification was pending for a year and a half almost two years during the case and then the sumpter case was almost another two years so you now have almost four years of delay wayne county had all of these affidavits during all of those proceedings so for them to sort of claim that they didn't understand that these women were complaining about the men and what was happening they had notice of it through four years of litigation and hundreds of affidavit that had been filed both pro se as well as the ones that i had then filed in support of the motions not just the motion for a class or vacation but in recent also a motion for polygamy injunction which was again never ruled on now standing the fact that these instances in which someone's going to have to litigate the claim after they may be in jail for only thirty days so that's why the those cases are political and that's why the supreme court has found the capable of repetition yet evading review standard of political to pretrial detainees like