UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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CARL A. BARNES, et al.,

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Plaintiffs,

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v.

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Civil Action No. 06-315 (RCL)

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DISTRICT OF COLUMBIA,

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Defendant.

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____________________________________)

MEMORANDUM OPINION This is a case in which history insists on repeating itself. The subject matter is virtually identical to a prior case before this Court, the arguments are the same, even the same procedural defaults have been made. If the past is prologue, then the result here must be predictable. Before the Court is the District of Columbia’s Motion [14] to Dismiss, or in the alternative, its Motion [15] for Summary Judgment, and its Motion [26] for an extension of time to respond to plaintiffs’ motion for class certification. As explained more fully below, all of these motions are DENIED, and the plaintiffs’ Motion [7] for Class Certification is GRANTED, with the result that the Court certifies this action as a hybrid class action. Finally, plaintiffs’ Motions [24 & 30] for Discovery are DENIED as moot. I. Background This case is directly linked to one that previously came before this Court, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL). In that case the Court certified a class of some 4,000 former prisoners of the District of Columbia’s Department of Corrections (“D.O.C.”)
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who alleged they had been detained by D.O.C. beyond the point at which their release had been ordered, for periods ranging from an extra day to many days or even months on end. Also certified was a class of former prisoners who alleged that they were subjected to strip searches after their release had been ordered. The Court certified an “Overdetention Class” and a “Strip Search Class” representing both types of claimants, which overlapped a great deal, and denied motions by the District to dismiss and for summary judgment. The parties reached a settlement of that case in August of 2005, which the Court approved in January, 2006.
The problem in Bynum, as alleged by plaintiffs in that case and this one, was that “court releases,” inmates who were entitled to release after a court appearance, were typically taken from court to the Central Detention Facility (“D.C. Jail”) or the Correctional Treatment Facility (“CTF”) to await the administrative processing of their release, often called “out-processing.”1 This process, which apparently involves ministerial tasks such as acquiring the release order, checking a prisoner’s record to make sure there was no other warrant or order that would justify continued detention, retrieving a prisoner’s personal property, and the like. The class members in Bynum were all held at least past midnight on the day their release was ordered, and frequently one day of overdetention turned into two, or a week, or even more. Because these prisoners were returned to the general population while they awaited outprocessing, they were subjected to strip searches, sometimes multiple times, as it appears that the D.O.C. policy is to strip search everyone who enters the general population from outside. See Second Amended Complaint (“2AC”) at ¶¶ 4, 13 [12]; Defendant’s Mem. in Support of Motion to Dismiss [14] at 4.
1The allegations in Bynum, and this case, also occasionally involved D.O.C.-run halfway houses throughout the District.
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In August of 2005, as Bynum neared settlement, D.O.C. adopted a policy of diverting incustody defendants who had been ordered released or who were otherwise entitled to release to a holding facility on the grounds of D.C. General Hospital. 2AC ¶ 40. D.O.C. administered outprocessing there instead of at D.C. Jail or the CTF, which meant that inmates were not subjected to strip searches absent some individualized suspicion. Id. But sometime around December 2005, the cracks in this system began to widen, with more and more inmates who were entitled to release slipping through and being returned to D.C. Jail or the CTF. Once there, they encountered the same dance with D.O.C. that arose in Bynum: inmates entitled to release were not released until the next day, or sometimes days or even weeks later, and inmates who were entitled to release were forced to undergo strip searches. The named plaintiffs – who allege they were detained for anywhere from four to 29 days after their release dates – identify almost forty other individuals who were overdetained, strip searched, or both, and allege there are potentially hundreds of other inmates who were subjected to the same treatment.2
According to plaintiffs, the recurrence of the overdetention and strip search issues is due to many factors, including computer problems and “the deliberate indifference of the acting warden Patricia Britton and the acting director Elwood York and the resignation of competent managers from the Records Office and the failure to replace them.” 2AC ¶ 42. They also allege that D.O.C. staff reported the problems up the chain of command, but that superiors “are disregarding the problem and acquiescing in the current overdetention and strip search problem.”
2This is not the only case alleging that D.O.C.’s problems resurfaced in the fall of 2005. In Simmons v. District of Columbia, Civil Action No. 07-493 (JR), an individual plaintiff has sued the District, alleging, among other things, that he was detained for several weeks after a judge ordered his release, and was subjected to a body cavity search during that time.
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2AC ¶¶ 43, 44. Plaintiffs brought this suit under 42 U.S.C. § 1983, alleging that the overdetention
violates the Fourth, Fifth, and Eighth Amendments, while the strip searches violate the Fourth and Fifth Amendments. 2AC ¶¶ 3, 4. They allege that District administrators and policymakers were deliberately indifferent to the rights of inmates while administering the maintenance of inmate records and in imposing the strip search policy. They also allege that it is the practice and custom of the District to overdetain inmates. Id. ¶¶ 79-82. Plaintiffs seek damages and declaratory and injunctive relief. II. Motion to Dismiss A. Alternative Motion for Summary Judgment
The District has moved [14] to dismiss for failure to state a claim, or, in the alternative, for summary judgment. [15] The decision of whether to convert a motion to dismiss to one for summary judgment rests in the discretion of the court. The only extraneous matter the District submitted was an affidavit from a D.O.C. employee which, as plaintiffs point out, suffers from several evidentiary deficiencies. More importantly, this case is at far too early of a state for summary judgment to be appropriate. There has been no discovery and the record is thin.
In Bynum summary judgment was rejected where, as here, “it would be premature to consider a motion for summary judgment when the discovery process, which has apparently not even commenced, might yield additional facts that would guide the Court’s decision as to the merits of plaintiffs’ strip search claims.” Bynum v. District of Columbia, 215 F.R.D. 1, 4 (D.D.C. 2003). As then, it is still the general rule that “decision by summary judgment is disfavored when additional development of facts might illuminate the issues of law requiring
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decision.” Nixon v. Freeman,670 F.2d 346, 362 (D.C. Cir. 1982). Nearly every issue in this case would benefit from illumination via the discovery process: the causes for and extent of delayed release, the nature of the strip search policy, where and with whom these problems originated, and a host of other factors the Court must consider are all dependent on facts that have not been developed. For this reason the Court will not treat the District’s motion as one for summary judgment, but rather as a motion to dismiss for failure to state a claim, and the Motion [15] for Summary Judgment is DENIED. B. Standard on 12(b)(6) Motion
When a Rule 12(b)(6) motion is at hand, plaintiffs’ factual allegations are presumed true and construed liberally in their favor. See Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000), Alexander v. FBI, 971 F.Supp. 603, 608 (D.D.C. 1997). “The complaint should be dismissed only if it appears beyond doubt that, under any reasonable pleading, plaintiffs will be unable to prove any set of facts that would justify relief.” Bynum v. District of Columbia, 257 F.Supp. 2d 1, 1 (D.D.C. 2002).
Plaintiffs bring their claims under § 1983 of the Civil Rights Act of 1871, which creates liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The Supreme Court laid out the standard for municipal liability under § 1983 in Monell v. Department of Social Services, 436 U.S. 658 (1978): “Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that
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is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” which can include “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id. at 690; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970) (discussing liability predicated on municipal “custom” or practice).
Thus “the plaintiff must prove that the District of Columbia has a ‘custom or practice that is the moving force behind the alleged . . . violations.’” Zearley v. Ackerman, 116 F.Supp. 2d 109, 114 (D.D.C. 2000) (quoting Walker v. District of Columbia, 969 F.Supp. 794, 797 (D.D.C. 1997)). “Although Monell allows claims based upon a well-settled municipal custom, plaintiff must ‘show fault on the part of the city based on a course its policymakers consciously chose to pursue.’” Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (internal citation omitted) (quoting Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986). As set forth by the Court of Appeals for this Circuit:
The court must determine whether plaintiff has alleged an ‘affirmative link,’ such that a municipal policy was the ‘moving force’ behind the constitutional violation. There are a number of ways in which a ‘policy’ can be set by a municipality to cause it to be liable under § 1983: the explicit setting of a policy by the government that violates the Constitution, the action of a policy maker within the government, the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become ‘custom,’ or the failure of the government to respond to a need (for example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations. Baker v. District of Columbia, 326 F.3d 1302, 1306-07 (D.C. Cir. 2003) (internal citations omitted).
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C. Application to Plaintiffs’ Claims 1. Overdetention
Plaintiffs allege that the District’s conduct amounts to a policy of deliberate indifference to their constitutional rights when it comes to processing the release of court-returned inmates, resulting in inmates being detained past the day on which they are entitled to release, and sometimes much longer. There is a substantial body of law in support of the proposition that a plaintiff who alleges overdetention, sometimes even for a very short period, states a claim for constitutional violations. See, e.g., Berry v. Baca, 379 F.3d 764 (9th Cir. 2004); Lewis v. O’Grady, 853 F.2d 136 (7th Cir. 1988); Jones v. Cochran, 1994 U.S. Dist. LEXIS 20625 (S.D. Fla. 1994); Parilla v. Eslinger, 2005 U.S. Dist. LEXIS 34747 (M.D. Fla. 2005); Arline v. City of Jacksonville, 359 F.Supp. 2d 1300, 1309-10 (M.D. Fla. 2005).
As in Bynum, the District counters only with the excuse that some delays are inevitable due to administrative needs. But evaluating the factors that contribute to delay “are issues of fact, however, not matters of law.” Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004). The record has not been developed to the point where these issues can be addressed. Further, the District is essentially arguing for a rule that certain delays, at least those of a day or two, are per se reasonable. Yet it remains the case that “[c]ourts have not settled on any concrete number of permissible hours of delay in the context of post-release detentions.” Berry, 379 F.3d at 771. The operative word there is “hours”: the great weight of precedent suggests that release must occur within a matter of hours after the right to it accrues, and that after some period of hours – not days – a presumption of unreasonableness, and thus unconstitutionality, will set in.
The District continues to mistakenly rely on County of Riverside v. McLaughlin, 500 U.S.
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44 (1991) as allowing it a 48-hour window in which to tend to administrative matters. In McLaughlin the Court ruled that delays of 48 hours or more between arrest and a probable cause hearing were presumptively unreasonable, and that defendants whose hearings took place less than 48 hours after arrest had to establish unreasonableness on a case-by-case basis. In the case of probable cause hearings, the administrative burdens on the state are far greater than in this case, and the societal interest at issue – determining whether there is probable cause that a crime has been committed – is far greater than the societal interest in a case like this. In a case such as this, the only societal interests that justify delay are ensuring that prisoners are not released if they have other detainers or warrants, and efficient marshaling of scarce resources. Furthermore, at issue in McLaughlin was the procedural, albeit very important, right to a prompt probable cause hearing. In a case such as this one, the issue is the prisoner’s absolute right to freedom. For these reasons, the point at which overdetention becomes presumptively unreasonable is likely to fall well short of the 48-hour window in McLaughlin. See Berry, 379 F.3d at 771-73 (analyzing McLaughlin in the context of overdetention); Brass v. County of Los Angeles, 328 F.3d 1192 (9th Cir. 2003) (same); Lewis v. O’Grady, 853 F.2d 1366 (7th Cir. 1988) (rejecting possibility that there can be a per se reasonable period in overdetention cases).
Plaintiffs assert that overdetention violates the Fourth, Fifth, and Eighth Amendments. They do not explain how their factual allegations line up with the elements of these claims, but then again, they need not do so at this stage. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). Most courts that have considered overdetention claims have agreed that they are properly channeled through the Due Process Clause of the Fourteenth Amendment – and the Court construes plaintiffs’ invocation of the Fifth
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Amendment as a reference to the identical provisions of the Fourteenth Amendment, which applies to the States and the District of Columbia. The Court follows those cases in holding that these plaintiffs state cognizable claims for deprivation of liberty without due process of law. See, e.g., Cannon v. Macon County, 1 F.3d 1558, 1562-63 (11th Cir. 1993); Berry v. Baca, 379 F.3d 764 (9th Cir. 2004); Lewis v. O’Grady, 853 F.2d 136 (7th Cir. 1988); Jones v. Cochran, 1994 U.S. Dist. LEXIS 20625 (S.D. Fla. 1994); Parilla v. Eslinger, 2005 U.S. Dist. LEXIS 34747 (M.D. Fla. 2005); Arline v. City of Jacksonville, 359 F.Supp. 2d 1300, 1309-10 (M.D. Fla. 2005).
The Complaint also states a valid Fourth Amendment claim. Plaintiffs allege that, despite being entitled to release, they were taken back into custody and transported to D.C. Jail or CTF. On the face of the complaint, they allege that they essentially were re-arrested or re-seized. These allegations of Fourth Amendment violations are sufficient to survive a motion to dismiss, and further development of the record should disclose whether the seizures were reasonable. See Arline v. City of Jacksonville, 359 F.Supp. 2d 1300 (M.D. Fla. 2005); Jones v. Cochran, 1994 U.S. Dist. LEXIS 20625, at *13-17 (S.D. Fla. 1994). On the other hand, plaintiffs do not allege that overdetention was imposed as some sort of punishment, and thus do not state a claim under the Eighth Amendment.
Plaintiffs adequately allege that overdetention is the result of District custom or policy for the purposes of § 1983. They allege, in essence, that the inefficient implementation of the District’s release procedures is the result of official “acquiescence in a longstanding practice or custom which constitutes the standard operation procedure of the local government entity.” Jett v. Dallas Indep. School District, 491 U.S. 701, 737 (1989); see also Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (municipal liability under § 1983 may be
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founded on “inaction giving rise to or endorsing a custom”). The conduct at issue can be phrased in a variety of ways, such as “a policy of inaction [where] such inaction amounts to a failure to protect constitutional rights.” Berry, 379 F.3d at 767 (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). No matter how it is worded, plaintiffs have clearly alleged a policy or custom that will support municipal liability. 2. Strip Search
The Supreme Court has established the Fourth Amendment standard for judging the reasonableness of inmate searches, stressing that “each case requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (analyzing searches in context of prison, not jail). When essentially the same allegations as in this case were presented in Bynum, they were deemed sufficient to survive a motion to dismiss. See Bynum v. District of Columbia, 257 F. Supp. 2d 1, 2 (D.D.C. 2002). The District has not unearthed any factual distinction or change in the law that would cause the Court to revisit its prior holding.
In Bynum, the Court relied largely on the reasoning of Gary v. Sheahan, 1998 U.S. Dist. LEXIS 13378 (N.D. Ill. Aug. 20, 1998), in which a 12(b)(6) motion was denied on substantially similar facts: court returns who had been ordered released were instead returned to a central facility and strip searched. More recently, Judge Collyer of this District has noted that there is substantial precedent in other circuits for the proposition that a plaintiff states a claim for violations of the Fourth and Fourteenth Amendments by alleging that jail officials “subjected
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putative class members to blanket strip searches and visual cavity searches without a reasonable individualized suspicion that the class members were concealing weapons or contraband.” Johnson v. District of Columbia, 461 F.Supp. 2d 48, 50 (D.D.C. 2006) (Collyer, J.).
The District argues that the searches are reasonable because they are incident to detention, but does not identify the specific security concerns at issue, or why they apply to all court returns. This assumes that if detention is justified, any strip search is justified without recourse to some individualized suspicion. But several courts have declined to dismiss claims based on blanket strip search policies, whether or not the detention is justified. See, e.g., In re: Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006); Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000) (joining “every other circuit which has had occasion to review a similar policy” and holding jail’s policy unconstitutional because it failed to require reasonable suspicion as a predicate to strip searches); Doe v. Calumet City, 754 F.Supp. 1211, 1219 n.20 (N.D. Ill. 1990) (“An indiscriminate strip search policy routinely applied to detainees . . . cannot be constitutionally justified simply on the basis of administrative ease in attending to security concerns”); Parilla v. Eslinger, 2005 U.S. Dist. LEXIS 34747 (M.D. Fla. 2005). III. Motion for Class Certification
Plaintiffs have moved [7] for class certification, but the District has not responded, instead asking for thirty days from the time the Court rules on its dispositive motions to file a response to the class certification motion. [26] Plaintiffs object to this request. The sole reason the District advances for delaying its response until after dispositive motions are dealt with is that a response may be unnecessary if the Court grants the motions, and if the Court denies them, the District could better tailor its response.
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This is precisely the justification that this Court rejected when the District declined to respond to the Bynum plaintiffs’ motion to certify a subclass, based on the District’s assumption that if the Court granted its pending summary judgment motion, the subclass certification issue would be mooted. Bynum v. District of Columbia, 214 F.R.D. 27, 30 (D.D.C. 2003). The Court holds today, as it did then, that “such an assumption was unwarranted, given the fact that the issue of whether to certify a class (or subclass) proceeds without an examination of the merits of the case . . ..” Id. Further, Rule 23(c) clearly states that “as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”
In Bynum the District had eight months in which to respond to the certification motion. This Court ruled that because this was “more than enough time for defendant to have filed a brief in opposition to plaintiffs’ motion to certify the subclass, and because the mandate of Rule 23(c) is clear, the Court will not brook any further delay of the certification question.” Id. The Court denied the District’s motion for a further enlargement of time and deemed it to have waived the right to file an opposition brief. Id. Here the District has had roughly ten months in which to oppose the certification motion, including one extension of time, and has had the instructive experience of seeing the exact position it takes here rejected in Bynum.
Therefore the District’s Motion [26] for an extension of time is denied and the District has waived its right to brief any opposition to the certification motion. While the Local Civil Rules generally permit the Court to treat unopposed motions as conceded, see L.Cv.R. 7(b), the Federal Rules of Civil Procedure contemplate that the Court must find that the requirements of Rule 23 are satisfied before certifying a class. So, as it did in Bynum, the Court will review the
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merits of the certification motion without the aid of the District’s views. The class certification determinations in this case are highly similar to those faced as to
the class and subclass in Bynum, and the Court will refer frequently to the two opinions dealing with those issues. See Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003); Bynum v. District of Columbia, 217 F.R.D. 43 (D.D.C. 2003). It is also worth noting that Bynum was hardly novel. There have been a number of class actions dealing with essentially the same overdetention and strip search issues. See, e.g., Parilla v. Eslinger, 2005 U.S. Dist. LEXIS 34747 (M.D. Fla. 2005); Jones v. Cochran, 1994 U.S. Dist. LEXIS 20625 (S.D. Fla. 1994).
“The party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all the prerequisites of Rule 23(a) are satisfied, and that the class falls within one of the categories of Rule 23(b).” Franklin v. Barry, 909 F.Supp. 21, 30 (D.D.C. 1995) (Green, J.). While the evidence cited in support of class certification may be the same evidence plaintiffs intend to use to prove their case, the class certification analysis is not a merits inquiry. Bynum, 214 F.R.D. 27, 31. Plaintiffs must establish a “reasonable basis” for crediting their allegations that the requirements of Rule 23 are met. Id. (quoting Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987) (internal quotation omitted)); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974).
To certify a class under Rule 23, a court first must determine that a class exists, then must decide that the four predicates of Rule 23(a) are satisfied, and finally must find that at least one of Rule 23(b)’s provisions applies. As discussed below, each of these prerequisites has been established.
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A. Existence of Class
“It is axiomatic that for a class action to be certified a ‘class’ must exist.” Simer v. Rios,
661 F.2d 655, 669 (7th Cir. 1981). As explained in Bynum:
[A]lthough Rule 23 of the Federal Rules of Civil Procedure does not specifically require
plaintiffs to establish that a class exists, this is a common-sense requirement and courts routinely require it. The requirement that a class be clearly defined is designed primarily to help the trial court manage the class. It is not designed to be a particularly stringent test, but plaintiffs must at least be able to establish that the general outlines of the membership of the class are determinable at the outset of the litigation. In other words, the class must be sufficiently definite that it is administratively feasible for the court to determine whether a particular individual is a member.
Bynum, 214 F.R.D. at 31 (quoting Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998)
(Friedman, J.)).
As set forth in the Second Amended Complaint, the Overdetention Class is defined as:
Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
See 2AC at 25; Motion [7] for Class Certification at 12. The definition of the Strip Search class
is much more lengthy:
Each person who was, or in the future will be, from September 1, 2005, forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending cases or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jail or CTF or other District facility, to be processed out of Department of Corrections custody; and (vii) was subject to a strip search and/or visual body cavity search without any individualized
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finding of reasonable suspicion or probable cause that was concealing contraband or weapons; before being released, regardless of whether he was overdetained. See 2AC at 26; Motion [7] for Class Certification at 34. As to the Overdetention Class, its definition is identical to that used in Bynum, which the Court approved because “an individual would be able to determine, simply by reading the definition, whether he or she was a member of the proposed class.” Bynum, 214 F.R.D. at 32. The Court later held the same to be true of the Strip Search class in Bynum, which employed the same definition proffered here. Bynum, 217 F.R.D. at 46. The same definitions and extremely similar facts in this case augur the same result: none of the terms in the definitions require further clarification or individual hearings to determine class membership, and plaintiffs have demonstrated the existence of identifiable classes. B. Rule 23(a) Requirements 1. Numerosity The first requirement of Rule 23(a) is that “the class is so numerous that joinder of all members is impracticable.” This prong “requires examination of the specific facts of each case and imposes no absolute limitations.” Bynum, 214 F.R.D. at 32 (quoting Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 33 (1980)). As the Court has noted, in most cases a class of at least forty members presumptively satisfies the impracticability of joinder requirement, though classes as small as twenty might be appropriate. Id. (citing Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1993) (numerosity presumed at forty class members)). If a plaintiff can provide a reasonable basis supporting an estimate, this will suffice instead of an exact figure. Bynum, 214 F.R.D. at 32-33 (citing Kifafi v. Hilton Hotels
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Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (Kollar-Kotelly, J.); Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998) (Friedman, J.); Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987) (Gasch, J.)).
Plaintiffs have submitted affidavits from almost forty individuals who claim to have been overdetained, and from roughly thirty who claim to have been strip searched. This alone would satisfy the tandem numerosity-impracticability requirements, and plaintiffs go further by positing, as they did in Bynum, a rough formula by which they estimate that many more class members will be found through discovery. With a proposed class containing thirty-some identified members, with many others potentially waiting in the wings, it would be impracticable to try the matter by joinder.
2. Commonality Under Rule 23(a)(2) there must also be “questions of law or fact common to the class” for certification to be appropriate. Commonality need not be complete; the class members do not have to have every issue of law and fact in common. See Bynum, 214 F.R.D. at 33 (citing Forbush v. J.C. Penney, Inc., 994 F.2d 1101, 1106 (5th Cir. 1993)). If “there is some aspect or feature of the claims which is common to all,” the requirement is met. Pendleton v. Schlesinger, 73 F.R.D. 506, 508 (D.D.C. 1977) (Smith, J.), aff’d, 628 F.2d 102 (D.C. Cir. 1980). The same common questions that were raised, and never resolved, in Bynum are present in this case and satisfy the commonality requirement, such as whether the overdetention and strip search practices were municipal policies and whether either violated the Constitution. See Bynum, 214 F.R.D. at 34. Regardless of any minor factual variations that might distinguish one class member from the next, all members of each class will share those common questions.
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3. Typicality The class representatives are the focus of Rule 23(a)(3), which requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “The typicality requirement ensures that the claims of the representative and absent class members are sufficiently similar so that the representatives’ acts are also acts on behalf of, and safeguard the interests of, the class.” Littlewolf v. Hodel, 681 F.Supp. 929, 935 (D.D.C. 1988) (Richey, J.). The requirement, which is liberally construed, see In re Vitamins Antitrust Litig., 209 F.R.D. 251, 260 (D.D.C. 2002) (Hogan, C.J.), dictates that “[a] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to a claim of another class member’s where his or her claims are based on the same legal theory.” Stewart v. Rubin, 948 F.Supp. 1077, 1088 (D.D.C. 1996) (Lamberth, J.). Similarly to commonality, typicality is not destroyed simply because there are some factual variations between claims of the representatives and other class members. See Bynum, 214 F.R.D. at 34 (citing Wagner v. Taylor, 836 F.3d 578, 591 (D.C. Cir. 1987); United States v. Trucking Employers, Inc., 75 F.R.D. 682, 688 (D.D.C. 1977) (Bryant, J.) (collecting cases)). The claims here are identical to those in Bynum. Each plaintiff pursues the same legal theory, with no real variation, and they all allege generally similar facts, with variations only in the length of overdetention or number of cited strip searches. Typicality is satisfied here just as it was in Bynum. Bynum, 214 F.R.D. at 34-35. 4. Adequacy of Representation The last requirement of Rule 23(a) is a showing that “the representative parties will fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(a)(4). This prong aims to
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ensure that the named representatives do not have interests antagonistic to those of the class members they represent, and that they will vigorously pursue the claims of the class through qualified counsel. Bynum, 214 F.R.D. at 35 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997); National Association of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)).
In terms of intra-class conflicts, the Court does not identify any that would imperil an adequacy finding. All class members seek substantially similar relief and, at least to date, the range of overdetention periods is relatively small, such that there is little tension between class members who might want to quickly settle small claims versus class members with potentially larger claims. See Bynum, 214 F.R.D. at 35-36. Finally, the adequacy of class counsel is well established. In addition to submitting affidavits setting forth the considerable experience of class counsel, both in general and in class action civil rights litigation, the qualifications of counsel are also established by their participation in Bynum and other class action litigation dealing with precisely the same factual, legal, and procedural questions at issue in this case. These class counsel were qualified in Bynum, and are even more so after that experience. See Bynum, 214 F.R.D. at 36-37. C. Rule 23(b) Requirements
Once Rule 23(a)’s requirements are met, a putative class must demonstrate that it fits under one of Rule 23(b)’s class types. Plaintiffs seek to certify both the Overdetention Class and the Strip Search Class as “hybrid classes” under both Rule 23(b)(2) and (b)(3).
1. Appropriateness of Equitable Relief To certify a 23(b)(2) class for injunctive or declaratory relief, plaintiffs must demonstrate
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that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). The provision requires “(1) that defendant’s actions are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37. In Bynum, the Court noted that it was sufficient to show that a defendant “has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (quoting 7A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1775 (2d ed. 1986)); see also Jones v. Goord, 190 F.R.D. 103, 112 (S.D.N.Y. 1999) (certifying (b)(2) class of prisoners alleging unconstitutional practice of double-celling, “notwithstanding defendants’ argument that matters such as inmate screening is done on a case-by-case basis by different prison officials at different facilities”).
In this case, plaintiffs allege systemic failure that results in overdetention, and a systemwide policy of strip searches. Though each violation complained of may have its own unique facts, “the fact remains that, on the facts alleged by plaintiffs, the overdetentions [and strip searches] do not appear to be isolated instances, but instead represent part of a consistent pattern of activity on the part of defendant.” Bynum, 214 F.R.D. at 38. The policies and practices challenged here are conduct generally applicable to the members of the class.
Rule 23(b)(2) also requires that plaintiffs seek final injunctive relief or corresponding declaratory relief. Plaintiffs do seek such relief, and any question that could be raised about the predominance of money damages claims over the claims of injunctive or declaratory relief, and the attendant risks of damage to class cohesiveness, are addressed by certifying this as a hybrid
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23(b)(2) and (b)(3) class, as the Court did in Bynum. Bynum, 214 F.R.D. at 41; see also Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997); Taylor v. D.C. Water & Sewer Authority, 2007 U.S. Dist. LEXIS 17737 at *43-44 (D.D.C. Mar. 13, 2007) (Kennedy, J.).
2. Predominance of Common Questions of Law To certify a class for money damages under Rule 23(b)(3), the Court must find that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Factors to be considered in this calculus are: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P. 23(b)(3). These considerations can be grouped along two basic lines: predominance and superiority. The first consideration duplicates the commonality analysis in many respects, delving further into an inquiry of the relative importance of the common issues to the case. See Bynum, 214 F.R.D. at 39. The dominant issues in this case, as in Bynum, go to liability – whether the overdetentions amount to an unconstitutional municipal policy and whether the strip search policy is similarly unconstitutional. Id. at 39-40. These issues dwarf whatever unique issues might arise at the damages stage. The common factual and legal issues in this case predominate over any issues applicable to individual members alone. Superiority is also satisfied here. The second prong of Rule 23(b)(3) militates in favor of
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class actions where common legal or factual questions allow a court to “consolidate otherwise identical actions into a single efficient unit.” Wells v. Allstate Ins. Co., 210 F.R.D. 1, 12 (D.D.C. 2002) (Oberdorfer, J.) (quoting Dellums v. Powell, 566 F.2d 167, 189 (D.C. Cir. 1977)). In cases such as this, involving many extremely similar claims against the same defendant, class certification promises greater efficiency and consistency than serial litigation of nearly identical individual cases. The superiority of the class action device becomes all the more apparent when it is revealed that the potential damages for each award may be small, indicating that the alternative of multiple individual suits may be an impossible way of vindicating the rights at issue. See Bynum, 214 F.R.D. at 40; Anderson v. Cornejo, 199 F.R.D. 228, 243 (N.D. Ill. 2000); Smith v. Montgomery County, 573 F.Supp. 604, 613 (D. Md. 1983).
The manageability of the action is patent on its face: notice to class members can be achieved, in most cases, by mailing notice to the last known addresses provided by D.O.C. databases. See Bynum, 214 F.R.D. at 40-41. Notice proceeded relatively smoothly in the Bynum class action, and the claims administration in that case appears to have been proceeding with few glitches. Given the experience class counsel received in that and other cases, there is every reason to hope that manageability will be even less of a concern in this case.
For the foregoing reasons, the Court will certify this action as a hybrid (b)(2) and (b)(3) class. Specifically, the Court certifies a (b)(2) class with respect to plaintiffs’ claims for injunctive and declaratory relief, and a (b)(3) class with respect to claims for monetary damages. There will be no opt-out right as to the (b)(2) class, but there will be a right to opt-out in the (b)(3) class. IV. CONCLUSION
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For the foregoing reasons, the Motions [14 & 15] to Dismiss and for Summary Judgment are DENIED. The District’s Motion [26] for an Extension of Time to respond to the motion for class certification is DENIED. Plaintiffs’ Motion [7] for Class Certification is GRANTED, and the Court certifies this matter as a class action as described above. Plaintiffs’ Motions [24 & 30] for Discovery are DENIED without prejudice, and plaintiffs’ Rule 56(f) Motion [20] for extension of time to respond to summary judgment is DENIED as moot. The parties shall meet and confer within ten days of this date and submit a proposed scheduling order to the Court outlining timetables for discovery and submission of dispositive motions.
A separate Order shall issue this date. Signed by United States District Judge Royce C. Lamberth, March 26, 2007.
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 Case 1:06-cv-00315-RCL Document 6 Filed 05/24/2006 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARL A. BARNES DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 278-872,
DERNARD HAWKINS DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 281-828
TONEY JAMES MALLOY DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 289-872
DAVID PETERSON DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 252-552
and
MAURICE WILLIAMS DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 197-245
On behalf of all others similarly situated,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 06-315 (RCL) ) Next event: None scheduled ) ) ) ) ) ) )
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Plaintiffs

)

)

v.

)

)

GOVERNMENT OF THE DISTRICT OF COLUMBIA)

SERVE: Mayor ANTHONY WILLIAMS)

Or his designee

)

Office of the Secretary

)

Gladys Herring

)

John Wilson Building

)

1350 Pennsylvania Avenue, N.W. )

Washington, D.C. 20004

)

Defendant )

__________)

CLASS ACTION
SECOND AMENDED COMPLAINT FOR INDIVIDUAL MONEY DAMAGES AND CLASS INJUNCTIVE RELIEF AND JURY DEMAND

Introduction

1. This is an action brought by each of Carl A. Barnes, Dernard

Hawkins, David Peterson, Toney James Malloy and Maurice Williams (the

“Overdetention Named Plaintiffs”) on his own behalf and on behalf of the class

defined below injured (or presently subject to injury) by the Government of the

District of Columbia’s recently revived pattern and practice of allowing its

Department of Corrections to overdetain inmates, and by the District’s deliberate

indifference to the effect of the practice of overdetention on the rights of inmates.

To overdetain means holding a detainee or prisoner in a District of Columbia

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Department of Corrections ("Department of Corrections") facility past midnight of his or her release date, as defined below.
2. This is also an action brought by Carl A. Barnes, David Peterson, Toney James Malloy and Maurice Williams (the "Strip Search Named Plaintiffs") on his own behalf and on behalf of a Strip Search Class of individuals who were injured (or presently subject to injury) by the District’s conduct in subjecting them to blanket strip searches and visual body cavity searches (both described below) after they were returned to a Department of Corrections facility after a judicial determination that there was no longer a basis for their detention, other than to be processed for release, and by District’s deliberate indifference to the effect of the practice of blanket strip searches and visual body cavity searches on the rights of inmates.
3. The Overdetained Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth, Fifth and Eighth Amendments, for injuries suffered by them, because the District overdetained them and other members of the class at a Department of Corrections facility.
4. The Strip Search Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights
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Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth and Fifth Amendments, for injuries suffered by them, because the District subjected them and the class to the blanket strip searches.
Jurisdiction and Venue 5. This Court has jurisdiction over the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs’ § 1983 claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). 6. Venue is appropriate in this District. Each of the claims for relief arose in this judicial district.
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Class Action Allegations 7. The Overdetained Named Plaintiffs bring this action under Rules 23(a), 23(b) (2) and 23(b)(3), of the Federal Rules of Civil Procedure on behalf of a class consisting of: (a) Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 8. The Strip Search Named Plaintiffs also bring this action under Rules 23(a), 23(b) (2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each member of the class who was, or in the future will be, from September 1, 2005, forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases
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which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jail or CTF or other District facility, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained.
9. Certification of these two classes under Federal Rule of Civil Procedure 23(b)(2) is appropriate, because the District of Columbia has a pattern and practice that has uniformly affected all members of both classes, and injunctive relief against the District will benefit each and every plaintiff and class member. Although the District had agreed to stop these practices, and indeed had done so in the context of the settlement of Bynum v. District of Columbia , Civil Action No. 02-956 (RCL), the final approval order did not require that the practices stop. These practices have recently been revived, making it clear that a court order is necessary to ensure the rights of the class members.
10. The classes are entitled to injunctive relief, for example, setting up an independent monitor to supervise the Department of Corrections' inmate
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management system to ensure that all inmates are released on or before their release dates, and other relief as specified below.
10A. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) is also appropriate, in that common questions of law and fact predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
11. Regarding the Overdetained Named Plaintiffs, and members of the Overdetention Class, there are no individual questions on the issue of liability other than whether an individual has been overdetained, and the answer to that question can be determined by ministerial inspection of the Department of Corrections' records.
12. Computer records are available for inspection on the overdetentions. 13. Regarding the Strip Search Named Plaintiffs, and members of the Strip Search Class, there are no individual questions on the issue of liability, because neither the DC Jail nor CTF keeps records of the searches and therefore neither the DC Jail nor CTF can show that any of the searches were conducted based on an individual determination of reasonable suspicion. 14. Among the questions of law and fact common to the classes are:
a) whether the Constitution provides a maximum length of time measured in hours beyond which the District cannot hold a
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person to perform administrative tasks incident to release before releasing that person from jail;
b) whether the District has exceeded that maximum for each class member;
c) whether the District has a pattern and practice of holding detainees and inmates past their release dates;
d) whether the District has a pattern and practice of being deliberately indifferent to the rights of detainees and inmates by holding them past their release dates;
e) whether the District’s acts as alleged herein violate the Constitution of the United States by holding detainees and inmates past their release dates;
f) whether the District has a policy of and practice of subjecting persons to blanket strip searches and visual body cavity searches after they have become entitled to release;
g) whether such policy, if found to exist, violates the Fourth and/or Fifth Amendments;
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h) whether plaintiffs and the members of the Overdetention Class and the Strip Search Class and future members are entitled to equitable relief, and, if so, what is the nature of that relief;
i. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members’ damages except those who opt
out. 15. Each of the Overdetention Class and the Strip Search Class is so numerous that joinder of all members is impracticable. The exact number of Overdetention Class and Strip Search Class members is unknown to plaintiffs at this time, but is likely to consist of at least one hundred people, and likely substantially more than that. 16. The Overdetained Named Plaintiffs’ claims are typical of the claims of the other members of the class, as plaintiffs and all other members of the class were injured by exactly the same means, that is, by the overdetentions. 17. The Strip Search Named Plaintiffs’ claims are typical of the claims of the other members of the Strip Search Class, as the Strip Search Named Plaintiffs and all other members of the Strip Search Class were injured by exactly the same means, that is, by the blanket strip searches.
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18. The Overdetained Named Plaintiffs and the Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the Overdetention Class and Strip Search Class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
19. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class or Strip Search Class.
Parties 20. Plaintiff Carl A. Barnes was currently being held past his Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody. 21. Plaintiff Dernard Hawkins was currently being held past his Release Date at the DC Jail as of the filing of this action. 22. Plaintiff David Peterson was currently being held past his Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody. 23. Plaintiff Maurice Williams was currently held in the DC Jail as of the filing of this action on a detention order in a traffic case that had been vacated on
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2/8/06. He was scheduled for a hearing on a show cause order for a probation violation on a misdemeanor case issued by a District of Columbia Superior Court Judge after which he was likely to be further overdetained and subjected to an illegal court return strip search.
24. Plaintiff Toney James Malloy is an inmate in the custody of the Department of Corrections who as of the time of the filing of the first amended complaint was being held in the District of Columbia Superior Court lock up for return to the DC Jail or the holding facility at DC General after being sentenced to probation with no confinement with no other charges on which he was being held, and at that time had no warrants, detainers or other basis for detention.
25. The District Government of the District of Columbia (hereinafter the District of Columbia or the District) is a municipal corporation capable of being sued under D.C. Code § 1-102.
FACTUAL ALLEGATIONS Components of the Department of Corrections 26. The District of Columbia Department of Corrections holds prisoners committed by the District of Columbia Superior Court, the District of Columbia District Court, and other agencies, in the Central Detention Facility (“DC Jail”),
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the Correctional Treatment Facility ("CTF") and at various halfway houses located in the District of Columbia.
27. Most prisoners held in the custody of the Department of Corrections are either pre-trial detainees, misdemeanants serving sentences, or parole and probation violators.
The Inmate Management System 28. The records office located at the DC Jail ("Records Office") is responsible for administering and maintaining the records, including the judgment and commitment files, of all persons housed at the DC Jail, CTF and the halfway houses. 29. The Records Office is responsible for ensuring that all persons housed at the DC Jail, CTF and the halfway houses are released according to their Release Dates specified in their court orders. 30. The District of Columbia Superior Court enforces a policy pursuant to which an in-custody-defendant or a defendant ordered into custody may not leave the courtroom without an order (commitment order or release order) for each case on which he appeared.
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The Overdetention Problem 31. "Overdetain" means holding a detainee or prisoner in Department of Corrections' custody past the person’s release date. 32. “Release Date” for each detainee or inmate is the day on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 33. “Exit Date” for each detainee or inmate is the day on which the person is actually released from the custody of the District of Columbia Department of Corrections. 34. The Department of Corrections had a long and documented history of overdetaining detainees and inmates past their release dates. 35. The Department of Corrections, in response to a class action lawsuit, instituted reforms that ameliorated and for periods eliminated the overdetention problem. 36. However, in the last few weeks before the filing of this action, and, on information and belief, particularly since at least late December 2005, the Department of Corrections has again begun overdetaining large numbers of inmates.
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37. The overdetention problem has been especially severe in the last few weeks before the filing of this action because of problems with the Department of Corrections’ computerized inmate population accounting system and for other reasons.
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The Court Return Strip Search Problem 38. Prior to late 2000 or early 2001, the Department of Corrections followed a practice under which most inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jail or CTF for processing for release rather than being released from the courthouse. 39. In late 2000 or early 2001, the Department of Corrections instituted a policy under which every inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jail or CTF for processing for release rather than being released from the courthouse. 40. In August 2005 the Department of Corrections instituted a policy of diverting in-custody defendants ordered released or otherwise entitled to release from the Superior Court of the District of Columbia to a holding facility on the grounds of DC General Hospital where they would not be subject to a strip search, absent individualized suspicion, while the record review for detainers and warrants and property retrieval was conducted prior to release.
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41. However, in the last few weeks before the filing of this action, and, on information and belief, particularly since late December 2005, the Department of Corrections has been returning some in-custody defendants entitled to release from the courthouses to the DC Jail or CTF and subjecting them to strip searches after a judge has ordered their release without a finding of individual reasonable suspicion.
42. The exact cause of the recent overdetentions and illegal court return strip searches is not known, but the causes, on information and belief, include recurring problems with the DC Jail’s computerized inmate population accounting system and the deliberate indifference of the acting warden Patricia Britton and the acting director Elwood York and the resignation of competent managers from the Records Office and the failure to replace them.
43. Records Room staff have communicated the overdetention problem to their superiors by e-mail and by other written and oral communications to their superiors.
44. Their superiors are disregarding the problem and acquiescing in the current overdetention and strip search problem.
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Carl A. Barnes’ Overdetention by the DC Jail 45. On or about 11/17/06 Plaintiff Carl A. Barnes was committed to the DC Jail. 46. Plaintiff Barnes’ Release Date was 2/15/06. 47. Plaintiff Barnes was currently being overdetained in the DC Jail as of the filing of this action. 48. Plaintiff Barnes has suffered damages as a result of the over detention.
Dernard Hawkins’ Overdetention by the DC Jail 49. On or about 2/15/06 Plaintiff Dernard Hawkins was committed to the DC Jail. 50. Plaintiff Dernard Hawkins’ Release Date was on or about 2/16/06. 51. Plaintiff Dernard Hawkins was currently being overdetained at the DC Jail as of the filing of this action. 52. Plaintiff Dernard Hawkins has suffered damages as a result of the overdetention.
Plaintiff David Peterson’s Overdetention by the DC Jail 53. On or about 2/13/06 Plaintiff David Peterson was committed to the DC Jail. 54. Plaintiff Peterson's Release Date was 2/20/06.
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55. But Plaintiff David Peterson was not released on 2/20/06 even though the Department of Corrections lacked a basis to continue detaining him.
56. Plaintiff Peterson's was currently being overdetained in the DC Jail as of the filing of this action.
57. Plaintiff Peterson has suffered damages as a result of the overdetention.
Plaintiff Carl A. Barnes’s Strip Search 58. On 2/15/06 Plaintiff Carl A. Barnes was taken to the Superior Court and the Superior Court judge sentenced him to time served. 59. Plaintiff Carl A. Barnes was entitled to release on 2/15/05. 60. But, instead of being released or diverted to the holding facility at DC General on 2/15/06, Plaintiff Carl A. Barnes was returned to the DC Jail’s general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 61. Plaintiff Barnes has suffered damages as a result.
Plaintiff David Peterson’s Strip Search 62. On 2/21/06 Plaintiff David Peterson was again taken to the Superior Court and the Superior Court judge ordered his immediate release.
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63. On 2/21/06 Plaintiff David Peterson was diverted to the holding facility at DC General because the judge in his case had previously ordered that he be released on 2/20/06 and again on 2/21/06 ordered his release.
64. Plaintiff David Peterson was entitled to release on 2/20/05. 65. But, instead of being released from the holding facility at DC General on 2/21/06, Plaintiff David Peterson was returned to the DC Jail’s general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 66. Plaintiff Peterson has suffered damages as a result.
Plaintiff Maurice Williams 67. Plaintiff Maurice Williams at the time the First Amended Complaint was filed (2/24/06) was held in the DC Jail on a traffic hold that had been vacated 2/8/06. He was the subject of a show cause order for probation violation in a misdemeanor case issued by a District of Columbia Superior Court (but he was not subject to a hold in the misdemeanor probation case and the Records Office did not show him as being held in the misdemeanor probation case), and he had a hearing scheduled for 2/27/06 in the misdemeanor probation case, after which he was likely to be overdetained and subjected to an illegal court return strip search. The
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judge in the misdemeanor probation case issued a release order at the 2/27/06 hearing (even though there was no hold in that case) but the DC Jail continued to hold him on the traffic case (even though the traffic hold had been vacated 2/8/06) until 3/1/06 even though the Superior Court records showed that the traffic hold had been discharged on 2/8/06. Pursuant to the custom of overdetentions and the policy of strip searches Mr. Williams was overdetained for 23 days and subjected to an illegal strip search after judges had ordered his release.
Plaintiff Toney James Malloy 68. Plaintiff Toney James Malloy is an inmate in the custody of the Department of Corrections who as of the time of the filing of this amended complaint is being held in the District of Columbia Superior Court lock up after being sentenced to probation with no confinement with no other charges on which he is being held, no warrants, detainers or other basis for detention. 69. Pursuant to the policy of the District of Columbia Department of Corrections, Plaintiff Toney James Malloy, instead of being released from the District of Columbia Superior Court courthouse, will be returned to a Department of Corrections facility for out-processing. 70. Pursuant to a recent practice and custom of the District of Columbia Department of Corrections known to policymakers, Plaintiff Toney James Malloy
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will be subjected to a suspicionless strip search and overdetained before being released.
SUBSTANTIVE ALLEGATIONS Count 1
§ 1983 Deliberate Indifference Liability of the District for the Constitutional Violations of its Employees
71. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint.
72. District of Columbia administrators, policy makers, supervisors and employees caused the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and unreasonable strip searches of the Strip Search Named Plaintiffs and all other class members and Strip Search Class members by deliberate indifference to the risk of constitutional injury of overdetention in administering records relating to inmates’ detention and release, and maintaining and acquiescing in a policy and practice of strip searching certain inmates.
73. Overdetaining any person violates that person’s Fourth and Fifth and Eighth Amendment rights.
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74. Unreasonably strip searching an inmate violates his Fourth and Fifth Amendment rights.
75. District of Columbia employees continue in such conduct up to and including the present.
76. At all relevant times such District of Columbia employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the District of Columbia, and such District of Columbia employees were acting in furtherance of the business of the District of Columbia.
77. The District is therefore liable by virtue of its deliberate indifference under 42 U.S.C. § 1983 for constitutional injuries to the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and all other class members and Strip Search Class members caused by the conduct of such employees.
78. Accordingly, all Named Plaintiffs and class members are entitled to damages to be determined at trial, and the Overdetention and Strip Search Classes are entitled to injunctive relief.
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Count 2 § 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth, Fifth and Eighth Amendment Rights of Overdetained Named
Plaintiffs and Class Members 79. The Overdetained Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 80. Beginning approximately in late December 2005, the District of Columbia, and its agents and employees, have had a custom of detaining people past their release dates, thereby causing the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and all other class members. 81. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Overdetained Named Plaintiffs and all other class members’ Fourth, Fifth and Eighth Amendment rights. 82. Accordingly, all Overdetention Named Plaintiffs and Overdetention Class members are entitled to damages to be determined at trial, and the Overdetention Class is entitled to injunctive relief.
Count 3
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§ 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth and Fifth Amendment Rights of Strip Search Named Plaintiffs
and Strip Search Class Members for Illegal Strip Searches 83. The Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 84. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Strip Search Named Plaintiffs and the Strip Search Class members’ Fourth and Fifth Amendment rights. 85. Accordingly, Named Plaintiffs Barnes, Malloy and Petersen and the Strip Search Class members are entitled to damages to be determined at trial, and the Strip Search Class is entitled to injunctive relief.
IRREPARABLE INJURY AND INJUNCTIVE RELIEF 86. The District is overdetaining members of the plaintiff Overdetention Class and unreasonably subjecting members of the Strip Search Class to strip searches and visual body cavity searches, which irreparably harms them, even if they are later able to recover compensatory damages. 87. The District's overdetaining members of the plaintiff Overdetention Class and performing illegally strip searches of the plaintiff Strip Search Class has
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Case 1:06-cv-00315-RCL Document 6 Filed 05/24/2006 Page 25 of 29
irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff Overdetention Class and Strip Search Class, thus making declaratory and injunctive relief necessary.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief: 1. grant a jury trial on all claims so triable; 2. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule 23(b)(3) and certifying the Overdetained Named Plaintiffs as the proper representative of the class consisting of:
(a) Each person who has been, is, or will be incarcerated in any District of Columbia Department of Corrections facility from 9/1/05 up to and until the date this case is terminated; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 3. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b) (2) and 23(b)(3) and certifying the
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Strip Search Named Plaintiffs as the proper representative of the Strip Search Class consisting of each member of the class who was, or in the future will be, from 9/1/05, forward:
(i) was or will be in custody of the Department of Corrections; (ii) was or will be taken to court from a Department of Corrections facility; (iii) was or will be ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not or will not be the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not or will not be the subject of any detainer or warrant; (vi) was or will be returned to the DC Jail or CTF from court, to be processed out of Department of Corrections custody; and (vii) was or will be subjected to a strip search and/or visual body
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Case 1:06-cv-00315-RCL Document 6 Filed 05/24/2006 Page 27 of 29
cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons;
(viii) before being released, regardless of whether he was or will be overdetained. 4. declare that the Districts’ acts alleged above violate the Fourth, Fifth and Eighth Amendments to the Constitution by overdetaining and illegally strip searching plaintiffs as alleged herein; 5. preliminarily and permanently enjoin the Districts from pursuing the course of conduct complained of herein; 6. preliminarily and permanently enjoin the Districts from pursuing settlement directly with any member of the putative Overdetention Class and Strip Search Class described herein unless that person is represented by counsel; 7. award all named plaintiffs compensatory and consequential damages in an amount to be determined at trial; 8. appoint an independent monitor to supervise the Records Office, and report to the court, to ensure that all inmates are released on or before their Release Dates, at the expense of Defendants;
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9. appoint an independent monitor to supervise the R&D Offices, and report to the court, to ensure that all detainees and inmates who have been ordered released are not strip searched or full-body cavity searched;
10. award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988; and
11. grant such other relief as this Court deems just and proper.
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Case 1:06-cv-00315-RCL Document 6 Filed 05/24/2006 Page 29 of 29
Respectfully submitted,
____/sig/________________________ WILLIAM CLAIBORNE D.C. Bar # 446579 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
JURY DEMAND Plaintiffs demand a jury of six as to all claims so triable.
_______/sig/______________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and the class
29

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

)

CARL BARNES, et al.,

)

Plaintiffs,

)

)

v.

)

Civil Action No. 06-315 (RCL)

)

DISTRICT OF COLUMBIA,

)

Defendant.

)

)

_______________________________________)

MEMORANDUM OPINION Before the Court are Plaintiffs’ Motion [217] for Summary Judgment and Defendant’s Motion [211] for Summary Judgment. Also before the Court are two motions to strike: Plaintiffs’ Non-Consent Motion [271] to Strike “Defendant’s Notice Regarding Correction in Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute, Document Number 228-7,”1 and Plaintiffs’ Non-Consent Motion [292] to Strike “Defendant’s Notice Regarding Filing Analysis of Late Releases, Document Number 244.” Finally, plaintiffs recently filed a document titled “Notice [sic] Plaintiffs’ Response to Discrepancy Reports Submitted by the District (docket # 301).”2 Pls.’ Notice [306], Jun. 21, 2011. Having carefully considered the Motions, the Oppositions, the Replies, oral argument of counsel, the entire record in this case, and the applicable law, the Court will grant in part and deny in part Plaintiffs’ Motion for Summary Judgment, and grant in part and deny in part Defendant’s Motion for Summary

1 Subsequent to plaintiffs’ Motion to Strike, Pls.’ Mot. Strike [271], Apr. 27, 2011, the District filed a Notice of Withdrawal of Defendant’s Notice Regarding Correction in Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute, Document Number 228-7 and Opposition to Plaintiffs’ Motion to Strike. Def.’s Notice [294], May 23, 2011. Since the District has voluntarily withdrawn the notice that plaintiffs have requested be struck, the Court will deny plaintiffs’ Motion to Strike as moot. 2 While not a motion requiring a ruling from this Court, the Court will briefly address plaintiffs’ comments in the Notice at the end of this opinion.

Judgment. The Court will also deny both of plaintiffs’ motions to strike. A review of the background of the case, the governing law, the parties’ arguments, and the Court’s reasoning in resolving those arguments follows. I. BACKGROUND
This case involves overdetentions and strip searches at the District of Columbia’s jails. The District’s Department of Corrections has custody over thousands of prisoners serving time for various offenses, with jail sentences of varying lengths. To maintain security within its jails, the DOC strip searches inmates upon admission or commitment to its jail facilities. D.’s SMF [211-1] ¶ 3. Each day the DOC shuttles some of its inmates to courts in the District so they can be present at court appearances. At some of those court appearances inmates receive court orders from judges for their release from the DOC’s custody. At that point the DOC begins an administrative release process that results in the prisoner’s actual release from the DOC’s custody. The same release process is begun upon the expiration of an inmate’s prison sentence.
While there is no s et definition for an “overdetention,” it generally means that once a prisoner was entitled to release -- because of a court order, the expiration of a sentence, or otherwise -- the authority having custody over that person held them too long. This case involves a group of plaintiffs representing a class of prisoners who allege, in essence, that the DOC held them too long after they were ordered released by a court or their sentences expired. In addition, since inmates with release orders from courts in the District were often returned to the DOC’s jails while the administrative processing of their releases was undertaken by DOC staff, those inmates were strip searched again pursuant to the DOC’s policy. Therefore the overdetention problem and the strip search problem are interrelated, the one leading to the other.
2

Since this case involves the DOC’s release process and whether it leads to overdetentions or is administered so poorly as to achieve the same result, the Court will first summarize that process. A 2008 r eport commissioned by the District’s Criminal Justice Coordinating Council supplies a helpful breakdown of the flow of paperwork between the various entities involved in the release of DOC inmates and a description of the steps taken by the DOC’s Records Office to process releases. Pls.’ Ex. 408 (“Schneider Report”).
The Schneider Report notes that when a release order issues in a courtroom, “it travels through seven hands . . . before reaching the DC Jail Records office where it is processed.” Id. at 1. J udges sign two original copies of release orders. Id. at 4. One copy is retained by the courtroom clerk and scanned sometime that day into a docket management program used by the Superior Court called “Court View.” Id. at 4–5. The other signed copy of the release order is given to the staff of the “Jail Board” at the courthouse, which holds onto all the inmates’ paperwork and coordinates with the DOC transportation staff to arrange the van or bus transport of inmates and their paperwork to the appropriate places. Id. at 5.
Once an inmate’s paperwork has arrived at the DC Jail, it is brought to the Receiving and Discharge office, where jail records staff enter each order into a logbook, post each order in the DOC’s inmate-management program JACCS, and then send the orders via dumbwaiter to the DC Jail’s Records Office for release processing. Id. at 6.
Records Office staff -- unfortunately named “Legal Instrument Examiners” (“LIEs”) -then perform the final round of administrative steps that the DOC requires before releasing inmates. Id. A LIE first reviews the inmate’s actual file or “jacket” and confirms that the release orders match the inmate’s cases. Id. The DOC will not release an inmate unless it has an actual, signed copy of the release order. The LIE also looks for other pending cases or detainers in the
3

file. Id. Next, the LIE checks the DOC’s own databases program, JACCS, to make sure that the JACCS data records coincide with the information in the physical file. Id. The LIE then checks other computer databases to see if there are any warrants out for the inmate’s arrest, and checks the Superior Court’s database, Court View, to check for any other cases requiring that the inmate be held in custody. Id. Once this first LIE determines that the inmate is eligible for release, a second, “senior” LIE performs all of the same steps -- again reviewing the inmate’s physical file -- and then signs off on the inmate’s release. Id. The process takes from 2 to 2.5 hours to complete. Simmons Dep. [228-2] 164:15–22.
That the DOC’s release procedures, its implementation of them, or both, might be generating unacceptable numbers of overdetentions is something that the District has been aware of for years. This case is nearly identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL). Bynum, filed in 2002, involved a class of about 4,000 former DOC prisoners who claimed they’d been detained by the DOC past the point when their releases had been ordered, “for periods ranging from an extra day to many days or even months on e nd.” Barnes v. District of Columbia, 242 F .R.D. 113, 115 ( D.D.C. 2007) . In addition to this “overdetention” class, this Court in Bynum certified an overlapping “strip search” class. T he District moved for summary judgment, the Court denied that motion, and shortly thereafter the parties settled the case.
The class members in Bynum were unable to get through the DOC’s release process on the day that their releases were ordered, were held by the DOC past midnight, and overdetained. In addition, because -- as stated above -- the DOC’s policy is to strip search anyone who is returned to the general jail population, Def.’s SMF [211-1] ¶ 3, many of the Bynum class members were strip searched, in some cases multiple times.
4

The Bynum litigation ended on January 25, 2006 pursuant to a settlement agreement that contained a number of components that were designed to remedy the overdetention and related strip search problems at the District’s jails.3 Bynum, 412 F. Supp. 2d 73 (D.D.C. 2006). Of the $12 million settlement amount agreed to by the parties in Bynum, $3 million was set aside “to build a state of the art Inmate Processing Center (IPC) within the foot print of the DC Jail site, which will be a project totaling $5 Million.” Id. at 83. T he remaining $2 million was to be provided by the District government. Id. The purpose of the IPC was to create adequate processing facilities for both intake and release of inmates and for the processing of associated records. Id. Among the reforms associated with the IPC was the requirement that “[c]ourt ordered releases [would] be separated from inmates to be held in custody.” Id. This Court recognized that the settlement promised “significant policy changes in the operation of the Department of Corrections,” and noted that the DOC’s “policy of strip searching court returnees subject to release has been stopped as a direct result of this litigation.” Id. at 85.
However, in the aftermath of Bynum, instead of a swift change to the status quo a t the DOC, there were years where little if any substantive change was instituted. In fact, there isn’t much in the record indicating any significant reforms for well over a year after the close of the Bynum class period. With the exception of a DOC staff “tour” of “mega jail” facilities in October and November 2006, whose relationship to improving the DOC’s release process is entirely unclear from the record, the DOC appears to have done nothing concrete in response to the overdetention problems at its jails until 2007.4
3 The Bynum overdetention monetary relief class period closed on August 31, 2005, the day before the start of the overdetention class period in the instant case. See Bynum, 412 F. Supp. 2d at 78. 4 The District says that the DOC has increased the number of staff in the Records Office “substantially” since 2006, Def.’s Mem. [211] 17, but it hasn’t indicated when that staffing increase began or how many of those additional employees are Legal Instrument Examiners who might impact the release process. Also, one senior Records Office employee testified in 2010 that the Records Office has never been adequately staffed. S immons Dep. [216-7] 277:15–20.
5

The Inmate Processing Center, mandated by the Bynum settlement, remains to this very day unbuilt. According to the Interim Director of the DOC, the IPC has been “in the planning stages for several years.” Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. [228] Ex. 1 at ¶ 17. As of March 2010, the District had spent only $788,222 on t he project, which now has an estimated cost of $15 m illion, rather than the $5 m illion specified in the Bynum settlement agreement. The District hasn’t provided an explanation for the extended delay in the IPC project or its currently trebled price tag, although it appears that these may in part be due to the DOC’s decision to fold the IPC project into a number of others. Pls.’ Second Mot. Compel [130], July 28, 2010, Attachment 1 at 57–58. The District’s most recent hope is to begin construction of the IPC in January 2012, with a completion date of July 2013. Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. [228] Ex. 1 at ¶ 18. However, since the District has pushed back the completion date repeatedly, there’s reason to doubt whether this facility will be up and running at that time.
As to the DOC’s practice of strip-searching court returns entitled to release absent individualized suspicion, the DOC agreed in 2005, as part of the Bynum settlement negotiations, to send court returns who had received release orders not to the DC Jail -- where they would be returned to the general jail population and subjected to blanket strip searches -- but to a holding facility at the DC General Hospital called the Medical Holding Unit. Pls.’ Ex. 759 [214-12] 9:9– 18. The administrative processing of those inmates’ releases could take place while they were housed at the MHU, and they could be released from that facility, without a strip search. Id. However, since that facility has nowhere for inmates to sleep in the event that their releases are delayed, Def.’s Ex. 1 a t ¶ 39, such inmates have been returned to the Jail or Correctional Treatment Facility and subjected to blanket strip searches. Def.’s Resp. Pls.’ SMF [228-7] ¶ 509. So the persistence of the overdetention problems has led, it seems, to the continuing
6

subjection of court releases entitled to release to blanket strip searches, despite the promises of the Bynum settlement.
The DOC’s lack of action in the wake of Bynum combined with singularly unhelpful action by the DC Council to exacerbate the overdetention problem. In 2003, with the Bynum litigation pending in this Court, the Council passed an ordinance prohibiting the release of inmates between the hours of 10 p.m. and 7 a.m. under any circumstances, also known as the “10 p.m. cut-off” rule. D.C. Code § 24 -211.2(b)(6).5 This ordinance was allegedly adopted in the best interests of inmates, to prevent “[r]eleasing inmates at midnight out the back door of the jail, into a neighborhood where there is no transportation and no other facilities to assist inmates . . . .” Pls.’ Ex. 207. However, whatever its intended purpose, the ordinance’s effect was to turn delayed releases into automatic, overnight overdetentions in cases where the Records Office was unable to complete the release process by 10 p.m. The District’s own Attorney General notified the DC Council’s Chairman in February 2009 that inmates were being overdetained “solely by operation of the cutoff provision” and that the provision was “unconstitutional as applied.” Pls.’ Ex. 206 [214-3].
However, the Record does indicate that beginning in 2007 -- more than a year after the instant case was filed -- the DOC and the District began to take some steps to address the overdetention problem. In July 2007, the DOC instituted a “new training regime” for LIEs that spans “several months,” including 44 hou rs of “Records Office Overview Training” that “focuse[s] on the release process.” Def.’s Mem. [211] 16; Def.’s Ex. 1 at ¶ 9, 10. Also in 2007, the DOC began -- for the first time -- to track overdetentions at its jails using “discrepancy
5 At the time that the rule became effective in January 2004, it contained no exceptions for exigent circumstances. However, the rule was modified by the “Safe Release of Inmates Amendment Act of 2010,” enacted in April 2010, to permit release after 10 p.m. in exigent circumstances, so long as the DOC takes steps to assure that the inmate has appropriate clothing, a place to sleep, and transportation from the jail.
7

reports,” providing the DOC with the means to both monitor and remedy overdetention problems.
Perhaps the single most significant reform occurred on July 7, 2008 , when the DOC instituted a “courthouse release” program, which permits inmates charged with misdemeanors to be released directly from the Superior Court, instead of transporting them back to the DC Jail or Correctional Treatment Facility for release processing. Pls.’ Ex. 211 at 77; Def.’s Ex. 1 at ¶ 32. Plaintiffs have “concede[d]” that the District’s courthouse release program “solved a l ot of the problems causing over-detentions and post release strip searches.” Pls.’ Opp’n Def.’s Mot. Summ. J. [229] 30. Plaintiffs’ counsel repeated at the June 2011 hearing on the parties’ motions for summary judgment that this change was significant, and that the number of overdetentions -even according to plaintiffs’ own numbers -- have trickled off since then.
A number of less significant, but noteworthy, reforms occurred between 2008 and 2010, including the centralization of the release process for the District’s inmates in the Records Office, the improvement of particular forms used by the DOC in the release process, and the institution of weekly audits of inmate-management data by the Records Office’s administrator.
It is not surprising, given this absence of activity for well over a year followed by a gradual introduction of reforms in subsequent years of the class period, that the evidence shows a high number of overdetentions in the early part of the class period followed by a decline in the overdetention numbers in subsequent years.
Plaintiffs’ numbers indicate thousands of overdetentions, particularly in the early years of the class period. Pls.’ Mem. [217-1] 3. Plaintiffs estimate that during the first year of the class period there were 3,092 overdetentions, and that another 1,902 occurred from September 2006 to February 2008. Pls.’ Ex. 192 [213-15] ¶ 17. These estimates are based upon an analysis
8

performed by plaintiffs’ statistical expert. See Pls.’ Exs. 190, 192 . H is analysis took as its starting point a collection of data records from the DOC’s inmate-management program called the Jail and Community Corrections System, or “JACCS.” Pls.’ Ex. 190 ¶ 34. U sing this JACCS data, plaintiffs’ expert generated an over-inclusive list of persons who were potentially overdetained during certain periods. Id. at ¶ 53. T hen, a statistical method called “stratified random sampling” was used to estimate the number of overdetentions and overdetention hours during these periods. Id. at ¶ 58. In short, instead of physically inspecting every one of the many thousands of inmate files on t he potential overdetentions list to confirm whether or not they were actual overdetentions, plaintiffs divided the list into groups, physically examined a random sample of files in each group, and then used those results to project an estimate of overdetentions across the whole population. Id. Plaintiffs do not have overdetention numbers more current than February 25, 2008.6
The District has no numbers at all that this Court can credit for the first 16 months of the class period. To account for the first year of the class period, the District provided a DOC report7 titled “Analysis of Releases between September 1, 2005 a nd August 31, 2006” which indicates that 444 “late releases” occurred. Def.’s Notice [244], Mar. 23, 2011, Attachment 1. While 444 is a lot of overdetentions in a year, it is significantly less than the 3,092 indicated by plaintiffs’ evidence for that same period. However, the District’s number is inscrutable because it cannot locate an attachment to that DOC report which contained the definition of “late release” used by the DOC to arrive at the report’s findings. W ithout that definition, it is impossible to
6 Plaintiffs’ overdetention figures cover only the period September 1, 2005 to February 25, 2008. Pls.’ Ex. 192 at B1. 7 This report is the subject of Plaintiffs’ Non-Consent Motion [292] to Strike “Defendant’s Notice Regarding Filing Analysis of Late Releases, Document Number 244.” Pls.’ Notice [292], May 14, 2011. For the reasons presented below, plaintiffs’ Motion is denied and the Court will consider this evidence.
9

determine whether what the DOC is calling a “late release” is consistent with the overdetention class definition or with plaintiffs’ overdetention definition.
As already noted, the DOC didn’t begin tracking overdetentions in a systematic way until January 2007 -- about 16 months into the class period. Def.’s Mem. [211] 25. DOC “discrepancy reports” provided to the Court by the District following the June 2011 hearing on the parties’ motions for summary judgment, which list individual overdetentions by month and note the reasons, show 302 overdetentions in 2007, 143 in 2008, 56 in 2009, 85 in 2010, and 22 in 2011 through the end of May. Def.’s Notice [302], Jun. 9, 2011. In contrast to the DOC’s “Analysis of Releases” report discussed above, the District did provide the definition of “overdetention” used to create these DOC discrepancy reports. T he DOC listed as an overdetention “anyone released after 11:59 p.m. on t he day they are ordered released, or alternatively, situations where the end of sentence calculation was computed incorrectly.” Souverain Decl. [301-2] ¶ 3. Clearly the District’s numbers for the period January 2007 forward show a significant drop in the number of overdetentions in recent years.
Overdetentions appear to be occurring for a variety of reasons. The District suggests that human errors, the cause of many overdetentions, are inevitable in any complex system such as the DOC. T he District emphasizes that four separate entities can authorize the release of an inmate from DOC custody, including the Superior Court, the U.S. District Court for the District of Columbia, the U.S. Parole Commission, and the Federal Bureau of Prisons. Def.’s SMF [2111] ¶ 4 . The DOC processes between 15,000 and 17,000 r eleases each year -- an average of between 41 and 47 each day. Id. at ¶ 2.
As to specific reasons for particular overdetentions, some are caused by mistakes by the DOC calculating inmates’ jail sentences. Plaintiffs, summarizing a series of DOC reports, note
10

that at least 79 overdetentions occurred during the class period because of sentence miscalculations. Pls.’ Ex. 902 ¶ 4. In ten of those cases misfiled or lost paperwork played a role. Id. At least 75 overdetentions resulted from a failure to calculate inmates’ sentences in a timely fashion, such that the release process could not be completed before the District’s 10 p.m. cutoff, resulting in overdetentions. Id. at ¶ 5. The District claims that some overdetentions were caused by factors “outside the control of the District,” including the failure of a federal authority, such as the Bureau of Prisons, to calculate an inmate’s sentence correctly. Def.’s Mem. [211] 27–28.
The “10 p.m. cut-off” rule appears to have resulted in a large number of overdetentions, at least according to plaintiffs. Analyzing and summarizing an “Audit Analysis”8 of thousands of potential overdetentions performed by the DOC during the first year of the class period, plaintiffs identified 1,244 ove rdetentions that the DOC itself said occurred because of the “10 p.m. cut-off” rule. Pls.’ Ex. 99B [221-9] ¶ 17. This indicates that between 3 and 4 persons were overdetained each day during the first year of the class period because of the District’s ordinance. The District disputes plaintiffs’ “10 p.m. cutoff” number, citing its “Analysis of Releases” report as contrary evidence. Def.’s Resp. Pls.’ SMF [228-7] ¶ 200. But, as stated above, that DOC report doesn’t contain the definition of “late release” used by the DOC, making the District’s contrary numbers useless in terms of raising a genuine fact dispute.
At least 124 persons were overdetained due to a lack of staff or a large volume of releases to be processed on a particular day. Pls.’ Ex. 99B [221-9] ¶ 30. At least 151 pe rsons were overdetained due to “late paperwork.” Id. at ¶ 38. P roblems transferring inmates, along with
8 The DOC’s “Audit Analysis” and “Analysis of Releases” are two separate documents. The “Audit Analysis” is a spreadsheet containing thousands of potentially overdetained inmates, the reasons for their overdetentions, the duration of their overdetentions, as well as other data. That “Audit Analysis” only contains records for releases in the first year of the class period. The “Analysis of Releases,” as explained above, is a report created by the DOC presenting the number of “late releases” during that same period.
11

their paperwork, from the Correctional Treatment Facility to the DC Jail for release processing
resulted in at least 68 overdetentions in the first year of the class period. Id. at ¶ 56.
The named plaintiffs in this case -- Carl Barnes, Dernard Hawkins, Toney Malloy, David
Peterson, and Maurice Williams -- are all former DOC inmates who claim that the DOC’s overdetention and strip-search problems remain widespread post-Bynum.9 Carl Barnes claims he
was ordered released, strip searched, and then overdetained for at least 7 days. Pls.’ Ex. 5,
Barnes Aff. 2. Dernard Hawkins claims that he was entitled to release by a court order, but
nevertheless was strip searched and overdetained for 7 days. P ls.’ Ex. 18, Hawkins Aff. 2.
David Peterson claims that he was held for 4 days after the expiration of his sentence. Pls.’ Ex.
3, Peterson Aff. 1. Maurice Williams claims he was ordered released, strip searched, and then
held for 21 days. Pls.’ Ex. 4, Williams Aff. 2.
Plaintiffs brought suit under 42 U.S.C. § 1983, alleging that their overdetentions violated
the Fourth, Fifth, and Eighth Amendments, while the strip searches violated the Fourth and Fifth
Amendments. Pls.’ Second Am. Compl. [12] ¶ 43, 44. Early on in the litigation, the District
filed a Motion [14] to Dismiss, or, in the alternative, for Summary Judgment. Def.’s Mot. Dismiss [14], July 7, 20 06. The Court denied the District’s motion.10 Barnes, 242 F.R.D. at
114.
At that same time, the Court granted plaintiffs’ motion to certify two classes. The first is
an “overdetention” class, defined as:
Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 f orward; and who
9 Another case before this Court, Simmons v. District of Columbia, Civil Action No. 07-493 (RCL), also claims that overdetention and strip-search problems continue at the DOC following the Bynum settlement. T his Court stayed Simmons’ claims relating to his overdetention pending further proceedings in the instant case. Simmons v. District of Columbia, 750 F. Supp. 2d 43, 44 (D.D.C. 2011). 10 Upon review, the Court takes notice of the fact that it intended to dismiss plaintiffs’ Eighth Amendment claim, since plaintiffs never alleged that their overdetentions were imposed as punishment. Barnes, 242 F.R.D. at 118. Therefore the Court will correct that error sue sponte by dismissing the claim in the Order issued today.
12

was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
Id. at 120. The second is a more complicated “strip search” class, defined as:
Each person who was, or in the future will be, from September 1, 2005 forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending cases or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jail or CTF or other District facility, to be processed out of the Department of Corrections custody; and (vii) was subject to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that was concealing contraband or weapons; before being released, regardless of whether he was overdetained.
Id. at 121.
The Court later ordered that the case be bifurcated into liability and damages phases, with
damages discovery to be conducted at a later time upon a further order of the Court. Order [65],
Aug. 31, 2009. All liability phase discovery closed in January 2011. Soon after the parties filed
motions for summary judgment.
II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure state that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 ( 1986). The standard requires more than the existence of some
factual dispute: “the requirement is that there be no genuine issue of material fact.” Anderson,
477 U.S. at 247–48 (1986) (emphasis in original). A fact is a material fact if, under the
applicable law, it could affect the outcome of the case. Id. A dispute is a genuine dispute for
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summary judgment purposes if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Also, because “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
A nonmoving party, however, must establish more than “the existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 ( D.C. Cir. 1999). The nonmoving party must present specific facts that enable a reasonable jury to find in its favor. Id. If the evidence presented is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50. III. ANALYSIS
A. The Parties’ Motions for Summary Judgment Before the Court are plaintiffs’ Motion [217] for Summary Judgment and defendant’s Motion [211] for Summary Judgment. Plaintiffs, relying on expert analysis showing that the number of overdetentions have remained high throughout the class period, argue that the DOC and the District have continued to violate prisoners’ constitutional rights post-Bynum, and maintain that on a record of broken promises and stubborn inaction by the District, a reasonable jury could only find that the District has been deliberately indifferent to these issues, and is thus liable as a matter of law. In response and in support of its own motion, the District points to the falling number of overdetentions, the lack of any official policies that could cause overdetentions, and a number of reforms that have been enacted to argue that no reasonable jury could find that they have been indifferent to these issues, and thus the case must be dismissed.
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The Court will discuss these and other arguments in the context of each of the four remaining claims, which the Court shall address in turn.
1. Fourth Amendment violations for overdetentions Before examining whether the District is liable for any constitutional violations, plaintiffs must first demonstrate the existence of such violations in the first place. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Plaintiffs bring a Fourth Amendment challenge to their overdetentions. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U .S. Const. amend. IV. Although neither party raised this argument in its papers, as is clear from the plain text of the Fourth Amendment, plaintiffs must show that their overdetentions constituted seizures of their persons to make out a violation of that amendment. See McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir. 2003). A “seizure” triggering the Fourth Amendment’s protections occurs when a person’s freedom of movement is terminated or restrained, either by physical force or a show of authority. Brendlin v. California, 551 U.S. 249, 254 (2007). However, plaintiffs were already in custody at the time they were ordered released or their sentences expired. Their freedom of movement had already been terminated. See Goldhaber v. Higgins, 576 F. Supp. 2d 694, 718 (W.D. Pa. 2007); Ratigan v. Trogvac, No. 4:CV-08-1667, 2009 WL 648931, at *29 (M.D. Pa. Mar. 11, 2009). In addition, plaintiffs haven’t presented any facts suggesting that their overdetentions involved fresh “seizures” warranting a Fourth Amendment analysis.
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For these reasons, the Court will deny plaintiffs’ Motion for Summary judgment as to its claim that the overdetentions violated the Fourth Amendment, and will grant the District’s Motion for Summary Judgment as to that claim.
2. Fifth Amendment violations for overdetentions Plaintiffs also bring a Fifth Amendment challenge to their overdetentions. Plaintiffs argue that the DOC’s system for processing releases is outmoded, adding hours and often days to the release process, and thereby violating plaintiffs’ due process right to a “prompt” release. Pls.’ Mem. [217-1] 1–2. They claim that certain longstanding DOC practices, such as refusing to release an inmate until the Records Office receives the physical, signed court order, Def.’s Opp’n Pls.’ SMF [228-7] ¶ 328, and operation of a “split” inmate management system where the DOC’s and Superior Court’s computers cannot share information electronically, invite overdetentions. Pls.’ Mem. [217] 15–16. Plaintiffs ask the Court to impose a “bright line time limit” on the DOC’s release process, based upon evidence indicating that the DOC’s release process by itself takes no longer than 2.5 hours to complete. Id. at 15. The District focuses its argument on its contention that plaintiffs cannot show, as a matter of law, that the overdetentions were the result of either a municipal policy or practice or the District’s deliberate indifference, and that therefore plaintiffs cannot show that the District is liable under the Supreme Court’s framework for Section 1983 municipal liability as laid out in Monell v. Dep’t of Soc. Servs., 436 U .S. 658 ( 1978). D ef.’s Mem. [211] 10–11. T he District claims that “proactive efforts” by the DOC post-Bynum have led to a dramatic reduction in the number of overdetentions, and that its very adoption of those practices “run[s] counter to any conceivable finding of deliberate indifference.” Id. at 13. To challenge plaintiffs’ contention that the DOC’s release procedures are problematic, the District offers the testimony of a
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correctional expert, who opines that the DOC’s release process is “effective and efficient,
appropriately staffed, and indeed meets best practices.” Def.’s Ex. 6 at 5.
a. Legal standard
The Fifth Amendment states that “[n]o person . . . shall be . . . deprived of life, liberty, or
property, without due process of law . . . . ” U .S. Const. amend. V. Ordinarily claims of due
process violations by State officials are analyzed under the Due Process Clause of the Fourteenth
Amendment, which applies to the States. Butera v. District of Columbia, 235 F.3d 637, 646 n.7
(D.C. Cir. 2001). While the District of Columbia is not a state, it is subject to the almost
identical provisions of the Fifth Amendment. Id. (citing Bolling v. Sharpe, 347 U.S. 497, 499
(1954)). Overdetentions potentially violate the substantive11 component of the Due Process Clause
by infringing upon an individual’s basic liberty interest in being free from incarceration absent a
criminal conviction. See Oviatt, 954 F .2d at 1474. This liberty interest is deeply rooted:
“[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due
Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U .S. 71, 80
(1992). Even if an inmate’s initial confinement was justified by a constitutionally adequate
basis, that confinement cannot constitutionally continue once that basis no longer exists. See id.
at 757.
11 Plaintiffs have not indicated whether their overdetentions constitute violations of substantive or procedural due process. T he substantive component of the Due Process Clause bars governmental actions “regardless of the procedures used to implement them.” Daniels v. Williams, 474 U .S. 327, 331 (1986). S ubstantive due process claims require a showing of governmental conduct that is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); Cohen v. District of Columbia, 744 F. Supp. 2d 236, 243 (D.D.C. 2010). Under procedural due process, the government is required to provide individuals with certain procedural rights before it may deprive them of life, liberty, or property. See Matthews v. Eldridge, 424 US. 319, 332–33 (1976). Procedural due process traditionally protects an individual’s right to be heard “at a meaningful time and in meaningful manner.” Id. at 333. For these reasons, the Court finds that the plaintiffs’ overdetention claims are properly analyzed as violations of the substantive component of the Due Process Clause. See also Goldberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005).
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Temporarily retaining custody over an inmate who is entitled to release in order to accomplish administrative tasks incident to that release is not per se unconstitutional. Lewis v. O’Grady, 853 F.2d 1366, 1370 ( 7th Cir. 1988) (“We recognize that the administrative tasks incident to a release of a prisoner may require some time to accomplish -- in this case perhaps a number of hours.”). However, courts recognize that inmates’ due process rights may be violated if they are not released within a reasonable time after the reasons for their detentions have ended. Brass v. County of Los Angeles, 328 F .3d 1192, 1200 ( 9th Cir. 2003); Goldberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005).
Courts have declined to adopt a bright-line rule for the maximum permissible delay in the overdetention context. Berry v. Baca, 379 F.3d 764, 771 (9th Cir. 2004). This contrasts with the Supreme Court’s approach, in the Fourth Amendment context, to detentions pending probable cause determinations after warrantless arrests, where the Court adopted a 48-hour rule. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
In McLaughlin, the Court recognized that States “have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where there has been no oppor tunity for a prior judicial determination of probable cause.” Id. at 53. On the other hand, the consequences of prolonged detention for the arrestee can be severe, potentially imperiling his or her job, source of income, and family relationships. Id.
In the overdetention context, the potential consequences for overdetained inmates are similar, while the societal interests involved are very different.12 Here, there has already been a judicial determination that the inmate is entitled to freedom from imprisonment. In the eyes of
12 The District concedes that the “plight of a new arrestee . . . is not identical to an inmate at the end of a legitimate incarceration.” Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. [228] 14.
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the law, this person is no longer a prisoner. Sullivan v. County of Los Angeles, 527 P.2d 865, 868 (Cal. 1974). As a result, the jail has every reason to believe that the person’s continued detention is unlawful and no r eason to believe that some other basis for the detention -- for example, a warrant or detainer in a separate matter -- exists, other than the fact that this person is being held by a correctional institution and at one point was legitimately incarcerated. While society has an interest in preventing the release of an inmate when an alternative basis for his confinement exists, and in administrative tasks aimed at preventing such releases, these interests are simply not as weighty as the interests involved in the probable cause context, where the individual who is subjected to administrative delays is personally suspected of criminal activity.13
Furthermore, the “administrative burden of accelerating the release process -- in particular, running a computer check on wants and holds within less than forty-eight hours -does not seem as weighty as the burden of establishing probable cause under a tight timeline.” Berry, 379 F.3d at 772. This burden is even further reduced given that many, if not most, of the administrative tasks incident to an inmate’s release can be undertaken prior to the expiration of a sentence or before a j ail’s receipt of a paper court order authorizing release -- unlike in the probable cause context, where all of the administrative tasks must necessarily follow the detainee’s arrest.
13 The District argues that ensuring that inmates with release orders from a court, or whose sentences have expired, are not “erroneously released” because some other basis for their detention might exist is an “extremely important societal interest” because erroneous releases can have serious consequences. Def.’s Opp’n Pls.’ Mot. Summ. J. [228] 13. A s support for this they cite a federal case concerning whether a parole board’s decision to deny a convicted sex offender’s release on parole was constitutional. Juarez v. Renico, 149 F . Supp. 2d 3 19, 321 (E.D. Mich. 2001). That case provides no support for the District’s contention, because it concerned whether to release a particularly dangerous category of criminal before the expiration of a valid sentence, not whether to release from prison a person who is entitled, at that very moment, to release, and whom the DOC has absolutely no reason to suspect is the subject of some other basis for continued detention.
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In recognition of these facts, courts appear to agree that the maximum permissible administrative delay in the overdetention context likely falls well short of the 48-hour horizon set out in McLaughlin. Berry, 379 F.3d at 771–72; Brass v. County of Los Angeles, 328 F.3d 1192, 1202 (9th Cir. 2003). “[E]ven a thirty-minute detention after being ordered released could work a violation of a prisoner’s constitutional rights under the Fourteenth Amendment.” Davis v. Hall, 375 F.3d 703, 713 (8th Cir. 2004). The Eighth Circuit has held that once a judge orders the release of a prisoner, any continued detention unlawfully deprives the prisoner of his liberty because “the state has lost its lawful authority” to hold him. Slone v. Herman, 983 F.2d 107, 110 (8th Cir. 1993).
Given that plaintiffs’ overdetention claims are brought under the substantive component of the Due Process Clause, to show a violation of their constitutional rights, they must demonstrate that the DOC’s conduct either interferes with rights “implicit in the concept of ordered liberty,” U.S. v. Salerno, 481 U.S. 739, 746 (1987), or was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); Cohen v. District of Columbia, 744 F. Supp. 2d 236, 243 (D.D.C. 2010). In the prison setting, where forethought about the welfare of inmates “is not only feasible but obligatory under a r egime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare,” “deliberate indifference can rise to a constitutionally shocking level . . . .” Lewis, 523 U.S. at 851, 852. The central question is whether the DOC’s conduct manifested deliberate indifference to plaintiffs’ and the class members’ constitutional rights. See Goldberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005). Courts evaluating due process claims involving overdetentions have found various factors relevant to the analysis, including the delays associated with necessary administrative procedures, the total number of
20

persons overdetained during the period, the rate of overdetentions given the total number of releases processed, and the duration of individual overdetentions. See Goldberg, 417 F.3d at 812; Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004).
i. Overdetentions caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” ordinance
Plaintiffs argue that the due process rights of certain overdetained class members were violated as a direct result of the District’s “10 p.m. cut-off” ordinance, calling the ordinance an “over-detention-making machine.” P ls.’ Mem. [217-1] 47. Plaintiffs have offered evidence showing that during just the first year of the class period, over a thousand persons were overdetained because of the DOC’s enforcement of that ordinance. P ls.’ Ex. 99B at ¶ 17. Overdetentions resulting from enforcement of the ordinance occurred throughout the class period, even according to the District’s evidence, Def.’s Notice [302], Jun. 9, 2011, until roughly March 2009, when the DOC ceased enforcement of it on the advice of the District’s Attorney General. Def.’s Ex. 1 at ¶ 43.
The District refers only once to the “10 p.m. cut-off” rule in its Memorandum, in the context of its discussion of the DOC’s strip search policy. Def.’s Mem. [211] 32. In its Memorandum in Opposition, the District argues that the ordinance’s requirement of mandatory overnight detentions for inmates whose releases could not be processed by the DOC by 10 p.m. is “neither unusual nor unreasonable.” Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. [228] 24.
The District cites for this proposition Holder v. Town of Newton, No. 08-cv-197-JL, 2010 WL 432357 (D.N.H. Feb. 3, 2010) , which concerned a challenge to the detention of a person who was arrested late at night without a warrant. Id. at *1. Instead of being given an immediate bail hearing, Holder was held overnight at the county jail, which was located “in a rural area with dark roads and no taxi service at night.” Id. at *2. Holder, however, is clearly distinguishable
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from the facts of this case because not only did that detention involve an arrestee who was first arrested late at night and who did not acquire a release order from a court that evening, but the jail to which he was transported was a r ural jail with no taxi service. In addition, the court in Holder specifically noted that if Holder could prove that “the bail commissioner ordered his release on the night of his arrest, but . . . t he county jail nevertheless continued to detain him until the next morning,” “he might be able to show a due process violation under the Fourteenth Amendment.” Id. at *10.
In this case, unlike Holder, the District’s “10 p.m. cut-off” rule operated to detain overnight individuals who already possessed court orders for release. Furthermore, given the urban location of the DC Jail and Correctional Treatment Facility -- each very short walks from two subway stations and with access to taxi service -- the Holder case provides no support for the District’s contention that the “10 p.m. cut-off” rule is neither “unusual nor unreasonable.” In fact, the District’s ordinance was both unusual and unreasonable to the extent that it categorically prohibited releases after 10 p.m. The District has provided literally no examples of other urban jails that apply such a policy with inmates entitled to release by court order or otherwise.
Nor has the District offered evidence suggesting that overdetentions caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule were the result of necessary administrative tasks or other reasonable delays. See Lewis v. O’Grady, 853 F .2d 1366, 1370 ( 7th Cir. 1988) (accepting that delays in the release of inmates of some number of hours are permissible to perform administrative tasks). Indeed, the “10 p.m. cut-off” rule categorically prohibited the release of a person with a court order entitling him to release, even if that release process was completed at 10:01 p.m. While the District contends that the rule was for inmates’ benefit, Def.’s Opp’n Pls.’ Mot. Summ. J. [228] 24, the District could have -- and has, in later
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amendments to the ordinance14 -- promoted this interest in inmate welfare while simultaneously respecting the entitlement of persons with court orders for release to a prompt release. The District’s interest in the welfare of former inmates, who must be released after 10 p.m. because of delays in the DOC’s release process, must not be permitted to completely overwhelm their basic right to be free from incarceration when there exists no l egal basis whatsoever for the continued deprivation of their liberty. Once the basis for the person’s continued incarceration is gone, the District’s authority to simply continue holding them in prison -- even to promote the District’s own sense of what’s good for them -- is gone as well. The District’s legislative behavior is truly irrational in that the District had just been sued, in this very Court, the year before it enacted a rule that mandates overdetentions when the DOC -- as was often the case -had failed to process inmates’ releases in a t imely fashion. The District’s legislative act is therefore not only shocking to this Court, but has interfered with the fundamental liberty interests of class members overdetained on account of that ordinance.
Therefore the Court concludes that the DOC’s enforcement of the District’s “10 p.m. cutoff” rule violated the due process rights of class members who were overdetained, during all parts of the class period, because of that rule.
ii. Overdetentions from September 1, 2005 to December 31, 2006 The Court will now consider whether the overdetentions that occurred during the first 16 months of the class period violated class members’ Fifth Amendment rights. Looking at the evidence, it is undisputed that the DOC’s release process should take from 2 to 2.5 hou rs to complete. Simmons Dep. [228-2] 164:15–22; Def.’s Response Pls.’s SMF
14 Later amendments to the ordinance provide an exception for “exigent and unusual circumstances.” D.C. Code § 24-211.2(b)(7) (2011). R eleases past 10 p.m. require the DOC to verify that the inmate has a p lace to sleep that night, appropriate clothing, any necessary medications, and transportation. Id. Also, the DOC must give the inmate the “option of remaining within a [DOC] facility until release at 7 a.m.” Id. at § 24-211.2(b)(7)(F).
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[228-7] ¶ 87. Given the dozens of administrative steps involved in the DOC’s release process, the Court does not find it surprising that the process should take that long. However, according to plaintiffs, the DOC’s release process is both faulty and inefficiently implemented, frequently resulting in large numbers of overdetentions and significant delays beyond 2.5 hours.
At least for the first 16 months of the class period, plaintiffs’ view is confirmed by the facts. In the case of the named plaintiffs, they show overdetentions ranging from 4 to 21 days. The District has not put forth any evidence disputing these individual overdetentions. Nor do they appear to be outliers. Plaintiffs have put forth evidence that, for the first 16 months of the class period, the DOC overdetained inmates in its custody on a routine basis and on an alarming scale. From September 1, 2005 until August 31, 2006 -- the first year of the class period -- there were 3,092 overdetentions. Pls.’ Ex. 192 [ 213-15] ¶ 17. Taking the District’s numbers indicating that it processes between 15,000 and 17,000 releases each year, Def.’s SMF [211-1] ¶ 2, the DOC was overdetaining about one out of every five inmates it processed for release. Dividing the number of overdetention hours found by the plaintiffs for that period (111,964) by the number of overdetentions (3,092) shows that on average these overdetained individuals spent an extra 36 hours at the DC Jail -- more than 10 times longer than the release process is supposed to take. A s stated above, the District’s only evidence contradicting plaintiffs’ overdetention numbers for this period -- a DOC report titled “Analysis of Releases” -- doesn’t raise a genuine issue of fact because that report fails to indicate what overdetention definition was used to create it. As such it is a conclusory allegation that the plaintiffs’ numbers for the first year of the class period are wrong, and nothing more. And the District has no overdetention figures at all for the 4 months following August 31, 2006.
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This roiling overdetention problem at the DOC during the first 16 months of the class
period is all the more shocking when the Court considers that the DOC and the District were on
notice, via the Bynum litigation, that the prevailing release practices were deeply inadequate, and
that fundamental change was needed. The Court would have expected, given that lawsuit, a
concerted effort on t he part of the District and the DOC to identify and eliminate every major
contributing factor to the overdetention problem. But that’s not what happened. Even when the
facts are viewed in the light most favorable to the District, the DOC’s first meaningful change to
the status quo di dn’t come until July 2008, when it instituted the courthouse release program, permitting a subset of inmates to be released directly from the Superior Court.15 Both parties
agree that this was a significant step toward reducing the number and duration of overdetentions.
The District’s only evidence of steps taken during the first 16 months of the class period -- an
affidavit from former DOC Director Devon Brown, stating that the DOC assumed the
responsibility for inmate court-to-jail transportation from the US Marshals in 2005, Def.’s Ex. 1
at ¶ 33 -- cannot be credited because Mr. Brown lacks personal knowledge of events prior to his
assuming that position in January 2006. Id. at ¶ 2.
Other major changes -- such as the completion of the Inmate Processing Center, a move
to a p aperless system to process releases rather than a d ogged insistence on releasing inmates
only upon receipt of paper court orders, or simply permitting releases based upon faxed (or, to
be even more futuristic, scanned and emailed) court orders -- were either rejected by the DOC or
15 The DOC’s “courthouse release” program only applies to inmates charged with misdemeanors. Def.’s Ex. 1 at ¶ 32. Inmates charged with felonies do not benefit from that program, and therefore presumably are no more likely than before that program was instituted to be released on time by the DOC -- assuming other improvements to the release process haven’t occurred. The District hasn’t pointed out to the Court the basis for this misdemeanor/felony distinction, and this Court at least thinks there’s reason to question whether the District can legally subject one free individual to an extended release procedure on account of their prior felony conviction, while allowing another free individual a speedy release because they were charged only with a misdemeanor. While the Court recognizes in this opinion that the courthouse release program has clear significance with respect to the question of the District’s Section 1983 liability for constitutional violations as some step taken to address the overdetention issue, the Court does not intend thereby to endorse the program’s distinction between former prisoners.
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remain, to this day, caught in a whirlpool of delays. In the meantime, free men and women were treated as prisoners, hoping the DOC’s paper-bound and Byzantine release process would favor them with an on-time release.
This Court’s alarm at the DOC’s lack of urgency in responding to this disturbing pattern of overdetentions despite the notice provided by the Bynum litigation is further enhanced by the fact that this case deals with prisoners, outcasts in society. T he full brunt of the harm for the DOC’s refusal to get its act together falls, not on District employees or influential citizens, but exclusively upon persons with little voice, who are shut away from public view. It is for these reasons that the Court finds that the DOC’s treatment of inmates entitled to release during the first 16 months of the class period is not merely alarming, and deliberately indifferent, but conscience-shocking.
Therefore the Court finds that with respect to overdetentions during the first 16 months of the class period -- September 1, 2005 to December 31, 2006 -- the DOC violated the due process rights of the plaintiffs and the members of the overdetention class who were overdetained during that period by not releasing them by midnight on the day that they were entitled to release. No reasonable juror could find otherwise.
iii. Overdetentions from January 1, 2007 to February 25, 2008 However, for the period January 1, 2007 to February 25, 2008, the Court finds that there exists a genuine issue of material fact as to the number of overdetentions, precluding a finding of summary judgment for plaintiffs or the District as to that period. The District has produced its own overdetention figures from January 2007 to the present, which, if taken as true, suggest that the DOC has significantly reduced the number of overdetentions in the most recent years of the class period. See Def.’s Notice [302], Jun. 9, 2011. A reasonable jury, if it believes the
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District’s numbers, could find that the DOC has addressed the problems resulting in overdetentions on a routine basis. On the other hand, if the jury believes plaintiff’s numbers, it could reasonably conclude that the number of overdetentions during that period -- nearly 2,000 for the period September 2006 to February 2008, Pls.’ Mem. [217-1] 3; Pls.’ Ex. 192 [213-15] ¶ 17 -- indicate that the DOC was deliberately indifferent to the overdetention problem despite the District’s proffer of steps taken during that period to address the overdetention problem. In short, these factual disputes preclude a finding of summary judgment for plaintiffs or for the District as to due process violations for the overdetentions that occurred from January 1, 2007 to February 25, 2008.
Therefore the Court will deny plaintiffs’ Motion for Summary Judgment as to its claim that overdetentions from January 1, 2007 to February 25, 2008 violate the Fifth Amendment, and will deny the District’s Motion for Summary Judgment as to that same period. 16
iv. Overdetentions from February 26, 2008 to the present Plaintiffs have produced no evidence indicating the number of overdetentions that have occurred after February 25, 2008. See Pls.’ Ex. 192 [213-15] at B-1. Therefore the Court must consider as undisputed the District’s overdetention figures for the period February 26, 2008 t o the present. These figures show only 121 overdetentions from March 2008 through the end of the year, 56 during all of 2009, 85 in 2010, and 22 in 2011 through the end of May. (D.’s Notice [302], Jun. 9, 2011). The District’s overdetention figures for this period, taking into account the number of releases processed by the DOC each year (15,000–17,000), show an overdetention rate that has been found acceptable in other courts that have considered overdetention problems
16 This ruling does not apply to overdetentions that occurred during this period because of the DOC’s enforcement of the District’s “10 p.m. cut-off” ordinance. As to those overdetentions, plaintiffs have shown a p redicate constitutional violation, for the reasons stated above.
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at municipal jails. See Mortimer v. Baca, 478 F. Supp. 2d 1171, 1179 (C.D. Cal. 2007), aff’d, 594 F.3d 714 (9th Cir. 2010); Avalos v. Baca, 596 F.3d 583, 588 n.4 (9th Cir. 2010).
The significant reduction in the number of overdetentions as of February 2008, alongside the District’s implementation in 2008 of measures that even plaintiffs concede have “solved” much of the overdetention problem, leads this Court to the conclusion that the DOC, from February 2008 forward, could not reasonably be found to have been deliberately indifferent to the due process rights of overdetention class members during this period. No reasonable jury, considering these facts, could conclude that the DOC was aware of, but chose to do not hing about, the overdetention problem during this period.
Therefore the Court will deny plaintiffs’ Motion for Summary Judgment with respect to overdetentions that occurred from February 26, 2008 forward, and will grant defendants’ Motion for Summary Judgment with respect to the same period.17
b. The District’s liability To summarize the above conclusions, the Court has determined, as a matter of law, that class members whose overdetentions were caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule have made out a violation of the Fifth Amendment. Furthermore, the plaintiffs’ and class members’ due process rights were violated for the period September 1, 2005 to December 31, 2006. The Court has found genuine issues of material fact precluding a finding of due process violations for overdetentions that occurred from January 1, 2007 to February 25, 2008. Finally, the Court has found, as a matter of law, that for the period February 26, 2008 to the present, Plaintiffs have failed to show a predicate constitutional violation. T he Court will now consider the question of the District’s liability for the remaining periods: the period
17 Again, this ruling does not apply to overdetentions that occurred during this period because of the DOC’s enforcement of the District’s “10 p.m. cut-off” ordinance.
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September 1, 2005 to December 31, 2006, and the period January 1, 2007 to February 25, 2008. The Court will also consider the District’s liability for due process violations that occurred throughout the class period as a result of its “10 p.m. cut-off” rule.
Plaintiffs’ overdetention and strip search claims are brought under Section 1983 of the Civil Rights Act of 1871, which creates liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
Local governing bodies, such as the District of the Columbia, can be sued under Section 1983 when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). “[T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.” Id. However, “local governments . . . m ay be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id.
There are several different ways that a plaintiff can demonstrate that a city is liable via Section 1983. The plaintiff can show (1) “the explicit setting of a policy by the government that violates the Constitution,” (2) “the action of a policy maker within the government,” (3) “the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become ‘custom,’” or (4) “the failure of the government to
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respond to a need . . . in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).
i. The District’s liability for overdetentions caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule
The District’s “10 p.m. cut-off” rule directly implicates the District’s government in the overdetention problem. That rule, although not enforced since March 2009, i s clearly an example of an “express municipal policy” that could lead to Section 1983 liability for the District, whether or not the District was “deliberately indifferent” to the overdetention problem. Section 1983 c reates liability for a local government when “the action that is alleged to be unconstitutional implements or executes a[n] . . . or dinance . . . of ficially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690. “[E]ven a single decision by a [legislative body] unquestionably constitutes an act of official government policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Overdetentions caused by the District’s ordinance are clearly constitutional violations executed in accordance with District policy officially adopted and promulgated by the Council. See Monell, 436 U.S. at 690. The District has failed to offer any argument contradicting this conclusion. C onsequently, as to overdetentions that occurred at any time during the class period that were caused by the DOC’s enforcement of that ordinance, plaintiffs are entitled to summary judgment as to the District’s liability.
Therefore the Court will grant plaintiffs’ Motion for Summary Judgment as to the District’s liability for any overdetentions that occurred during the class period that were caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule, and will deny the District’s Motion for Summary Judgment with respect to those particular overdetentions.
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ii. The District’s liability for overdetentions from September 1, 20 05 to December 31, 2006
To show that the District is liable for due process violations during this period, plaintiffs must show that these violations were caused by a policy or custom of the District. Monell, 436 U.S. at 690. Plaintiffs’ primary argument, repeated throughout its Memorandum in Support of its Motion for Summary Judgment, for why the District is liable for the overdetention problems at the DOC is that they were caused by the District’s deliberate indifference. In fact, both parties focus their efforts on t his one basis for municipal liability in their motions and supporting documents. However, plaintiffs also claim, as a separate basis for Section 1983 liability, that the overdetention problem is the result of official “acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity.” Pls.’ Mem. [217-1] 49 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
To show that the District had a deliberately indifferent policy or custom with respect to overdetention problems at the DOC, plaintiffs must demonstrate that the District failed to respond to a need in a manner that “amounts to ‘deliberate indifference’ towards the constitutional rights of persons in its domain.” Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000). Plaintiffs do not have to show that the District subjectively knew about the overdetention problem: the question is whether “the [District] knew or should have known of the risk of constitutional violations, an objective standard.” Baker, 326 F .3d at 1307. Deliberate indifference means that, “faced with actual or constructive knowledge that its agents will probably violate constitutional rights, the city may not adopt a policy of inaction.” Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
Plaintiffs’ argument for the District’s deliberate indifference rests primarily on the following contentions: that the District was on notice as early as 2002, via the Bynum litigation,
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that the DOC had a serious overdetention problem; that the District failed to intervene in any significant way to respond to that problem; that when the District did turn to the DOC’s release process, in the form of the “10 p.m. cut-off” rule in 2003, its actions in fact greatly exacerbated the overdetention problem; and that if the District were anything other than deliberately indifferent to the overdetention problem, the disturbing pattern of thousands of overdetentions during the class period would not show up in the evidence.
There is no dispute that the District was aware, or at least should have been aware, of overdetention problems at its jails beginning, at the latest, in 2002, when the Bynum lawsuit was filed. T he existence of the Bynum litigation, involving exactly the same issues, the same defendant (the District), and even some of the same lawyers as this case, clearly put the District on notice that absent significant intervention on its part, a pattern of unconstitutional behavior would almost certainly continue at the DOC. See Daskalea, 227 F.3d at 441.
Regarding steps taken by the District to address the overdetention problem, the District argues that plaintiffs cannot, as a matter of law, show deliberate indifference because the District didn’t adopt a “policy of inaction” after Bynum. Def.’s Opp’n Pls.’ Mot. Summ. J. [228] 9. However, as stated above, the District hasn’t provided any competent evidentiary support for this claim that would apply to the first 16 months of the class period. With the exception of a DOC staff tour of “mega jail” facilities in October and November of 2006, every “proactive effort” identified by the District and supported by competent evidence occurred in subsequent years of the class period. See Def.’s Mem. [211] 10 (New training program for Records Office staff in 2007), 17 (Records Office implements staff “team approach” to release processing in 2007), 18 (“Discrepancy reports” used to track overdetentions beginning in 2007), 19 ( Sentencecomputation software implemented in 2007), 21 ( Courthouse release program implemented in
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July 2008), 17 (Responsibility for the release of inmates from the CTF assumed by the Records Office in late 2008), 18 (Records Office “modernized” in 2009), 22 (Assumption from the US Marshals of “jail board” responsibilities at the Superior Court in 2009), 19 ( Changes to the Prisoner Transfer Report in “late 2009”), 20 (Weekly audits of JACCS data by Records Office Administrator implemented in 2010). Therefore, even assuming that the District’s facts as to remedial efforts taken during the class period are true as required in resolving a summary judgment motion, they are irrelevant to the District’s actions during the 16-month period in question -- September 1, 2005 to December 31, 2006 -- because they occurred during later years of the class period. As such, there is no genuine issue of material fact as to whether the District (and the DOC) failed to take action to remedy the overdetention problem during the first 16 months of the class period.
Finally, that overdetentions persisted at the DOC, in large numbers, following the settlement of the Bynum litigation, as shown by plaintiffs uncontroverted overdetention figures for the first 16 months of the class period, is unsurprising given that the status quo remained locked in place during that period. While the Court does not have overdetention figures from either party that precisely track the 16-month period September 1, 2005 to December 31, 2006, plaintiffs’ numbers for the first 12 months of the class period (September 1, 2005 t o August 31, 2006) show that an estimated 3,092 overdetentions occurred. Pls.’ Ex. 192 [213-15] ¶ 17. This large number of overdetentions, combined with the District’s notice of the problem via the Bynum litigation and complete lack of meaningful attention or action concerning the issue during the period, provides specific and detailed evidence of a pattern of unconstitutional conduct that was either condoned or deliberately ignored by the District. See Daskalea, 227 F.3d at 441–42.
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While ordinarily the question of whether a municipality has a deliberately indifferent policy or custom is for the jury, see Smith v. District of Columbia, 413 F.3d 86, 100 ( D.C. Cir. 2005), no reasonable jury could find on the basis of these facts that the District had a policy other than deliberate indifference with respect to overdetentions at the DOC during the first 16 months of the class period. This is not case where some actions of some level of usefulness were taken - but no action. Despite its knowledge of overdetentions problems at its jails, the District failed to respond to the need for changes in the DOC’s release practices in a m anner that shows deliberate indifference to the constitutional rights of persons within its domain.
Nor could a reasonable jury conclude that this deliberately indifferent District policy wasn’t the “moving force” behind the constitutional deprivations associated with plaintiffs’ overdetentions. Plaintiffs must prove that the District has a custom or practice that is the “moving force” behind the alleged violations. Zearley v. Ackerman, 116 F. Supp. 2d 109, 114 (D.D.C. 2000). “A deliberately indifferent policy or custom is deemed to be the moving force of a constitutional injury if the conduct is a substantial factor in bringing about the harm.” Smith, 413 F.3d at 102. The policy or custom must be closely related to the ultimate injury, and courts must consider whether the injury would not have occurred in its absence. Id.
Akin to proximate cause, the question of whether a policy or custom is the moving force behind alleged constitutional deprivations is normally a question for the jury. Id. Here, however, there exists no genuine issue of material fact regarding the question of whether the District’s deliberate indifference was the moving force behind the overdetentions that occurred during the first 16 months of the class period. Plaintiffs have presented evidence of a disturbing pattern of overdetentions at the District’s jails during the period. See Bd. of County Comm’rs of Bryan County v. Brown, 520 U .S. 397, 407 –08 (1997) (“the existence of a pattern of tortious
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conduct by inadequately trained employees may tend to show that the lack of proper training . . . is the ‘moving force’ behind the plaintiff’s injury.”). Combined with the District’s awareness of the overdetention problem and its utter failure to intervene, the only reasonable inference that can be drawn is that the District adopted, by condoning, the DOC’s misconduct. In failing to address the problems at the DOC resulting in overdetentions, it was highly predictable that the District’s indifference “led directly to the very consequence that was so predictable.” Id. at 409– 10. A s such, there is no g enuine issue regarding whether the District’s policy of deliberate indifference was the moving force behind these constitutional violations. Had the District made addressing the overdetention problem a true priority following Bynum, the incidence of overdetentions at the District’s jails during the early years of the class period would have reached the acceptable levels seen today.
Therefore the Court will grant plaintiffs’ Motion for Summary Judgment as to the District’s liability for overdetentions that occurred from September 1, 2005 up to and including December 31, 2006, and will deny the District’s Motion for Summary Judgment as to that same period.
iii. The District’s liability for overdetentions from January 1, 2007 to February 25, 2008
The next issue concerns whether the District or plaintiffs are entitled to summary judgment as to the District’s liability for the period January 1, 2007 to February 25, 2008. The District argues that it cannot be found to be deliberately indifferent as a matter of law because numerous “proactive efforts” were undertaken by the District to reduce overdetentions. Def.’s Mem. [211] 13.
With respect to reforms undertaken between January 1, 2007 and February 25, 2008, the District points to the DOC’s implementation, in 2007, of a new training program for Records
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Office staff and a system for tracking overdetentions as signs that steps have been taken to address and monitor deficiencies in the DOC’s release process. Def.’s Mem. [211] 10, 18. Also in 2007, t o address the problem of sentence miscalculations leading to overdetentions, the Records Office began using sentence-computation software. Id. at 19. While certainly not as significant as the reforms instituted by the DOC in the later years of the class period, the District has provided some evidence that could lead a reasonable jury to conclude that it had intervened in a substantial way during this period to address the problems resulting in overdetentions. On the other hand, a jury could reasonably conclude that such efforts were so clearly inadequate as to indicate that the District continued its policy of deliberate indifference.
Furthermore, there exists a significant factual dispute during this period as to the number of overdetentions, as indicated above. Taking plaintiffs’ overdetentions numbers for the period as true, as is required on summary judgment, the evidence shows nearly 5,000 ove rdetentions occurred from the start of the class period to February 2008, r esulting in an average overdetention of about 48 hours. Pls.’ Mem. [217-1] 3; Pls.’ Ex. 192 [213-15] at Attachment B1. A jury could conclude based upon this evidence that the District continued to avert its eyes to a disturbing pattern of unconstitutional conduct by the DOC.
Therefore the Court will deny both plaintiff’s and the District’s motions for summary judgment with respect to the District’s liability for overdetentions that occurred from January 1, 2007 to February 25, 2008.18
In summary, the Court will grant plaintiffs’ Motion for Summary Judgment as to the District’s liability for overdetentions caused throughout the class period by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule, and will deny Defendant’s Motion for
18 This ruling does not apply to overdetentions that occurred during this period because of the DOC’s enforcement of the District’s “10 p.m. cut-off” ordinance. As to those overdetentions, the Court has determined that the District is liable as a matter of law.
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Summary Judgment as to that issue. T he Court will also grant plaintiff’s Motion as to the District’s liability for the overdetentions of the plaintiffs and class members during the period September 1, 2005 t o December 31, 2006, and will deny the District’s Motion as to that same issue. With respect to overdetentions that occurred during the next 13-month period -- January 1, 2007 to February 25, 2008 -- that were not caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” rule, the Court will deny both parties’ motions, finding genuine issues of material fact exist with respect to both the predicate due process violations during that period and the District’s liability. Those issues will remain and will be determined at trial. Finally, for the period February 26, 2008 to the present, and again excluding overdetentions caused by the “10 p.m. cut-off” rule, the Court will grant the District’s Motion for Summary Judgment and deny plaintiffs’.19
3. Fourth Amendment violations for the strip searches Plaintiffs also challenge the DOC’s policy of strip-searching court returns entitled to release without individualized suspicion, claiming that it violates the Fourth Amendment. Pls.’ Mem. [217-1] 55. The DOC’s policy is to strip search all inmates “upon admission/commitment into the facility . . . .” D ef.’s SMF [211-1], at Ex. 4. In addition, strip searches may be conducted “where there is a reasonable belief that contraband may be concealed on the person.” Id. One factor listed as providing a reasonable basis for strip searching an inmate is “exposure to public areas.” Id.
a. Legal standard
19 While the Court has held as a matter of law that the District is not liable for overdetentions that occurred from February 26, 2008 forward that were not caused by the DOC’s enforcement of the District’s “10 p.m. cut-off” ordinance, this ruling applies only to plaintiffs’ and class members’ constitutional claims as specified in plaintiffs’ Second Amended Complaint. Pls.’ Second Am. Compl. [12].
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The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U .S. Const.
amend. IV. The Fourth Amendment’s touchstone is reasonableness, which “is measured in
objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33,
39 (1996). The determination of the reasonableness of a search under the Fourth Amendment is
a question of law. U.S. v. Zapata, 997 F.2d 751, 756 (10th Cir. 1993).
The Supreme Court, in the leading case in this area, Bell v. Wolfish, has stated that the
reasonableness test “is not capable of precise definition or mechanical application. In each case
it requires a balancing of the need for the particular search against the invasion of personal rights
that the search entails. Courts must consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and the place in which it is conducted.”
Bell v. Wolfish, 441 U.S. 520, 559 (1979). Since the parties do not dispute the reasonableness of the scope20 of these strip searches
or their location, the Court will consider only the second and third Bell factors.
i. Manner of the search
Plaintiffs present conflicting evidence on t he issue of whether the DOC conducts strip
searches in groups. According to deposition testimony of a jail guard provided by plaintiffs, a
few jail guards are present during strip searches, but the other inmates line up in something
20 The DOC’s strip searches of inmates involve the following steps, according to plaintiffs’ evidence. I nmates remove their clothes and go through a p rocess called a “dance.” Lucas Dep. [235-1] 440:3–16. The inmates run their fingers through their hair and move their ears back. Id. at 440:18–21. They open their mouths, lifting each corner with their hands so the guards can see inside. Id. at 441:1–3. Then the inmates allow visual inspection of their arm pits and genital areas, and spread their buttocks. Id. at 441:5–13. “Once that’s done then they lift up their back feet, one, two, and it’s over.” Id. at 441:14–15. The District’s account of this process is similar, although it does not indicate that the DOC performs a v isual inspection of the inmates’ genital areas. D ef.’s Mem. [211] 8. These facts suggest a visual body-cavity strip search of a scope that has been found reasonable in numerous cases involving strip searches of arrestees in the prison context. Bell, 441 U .S. at 558; Florence v. Bd. of Chosen Freeholders, 621 F.3d 296, 299 (3d Cir. 2010), cert. granted, 131 S. Ct. 1816 (2011); Bull v. City and County of San Francisco, 595 F.3d 964, 968–69 (9th Cir. 2010) (en banc); Powell v. Barrett, 541 F.3d 1298, 1301 (11th Cir. 2008) (en banc).
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called the “bull pen” waiting their turn to be searched. Lucas Dep. [235-1] 442:11–16. Plaintiffs’ only support for group searches that this Court can find in the record are the four affidavits plaintiffs cite in their Memorandum in Support. Pls.’ Mem. [217-1] 59. But only two of those affidavits can be understood to suggest that group strip searches were conducted.
On the other hand, the District supplied an affidavit from the DOC’s Chief of Security stating that inmates are not group strip searched. W atford Decl. [243-2] ¶ 3 . The District’s position is supported by a video of the DC Jail’s strip-search process recently provided to the Court by the District, which clearly shows inmates being searched one-by-one. Even setting aside the District’s contention that group strip searches of inmates have been upheld in other circuits, Def.’s Opp’n Pls.’ Mot. Summ. J. [228] 24, there exists a genuine dispute as to whether group strip searches have been or are now used by the DOC. Therefore the Court must accept, for summary judgment purposes, the District’s facts indicating that the DOC does not conduct group strip searches.
Plaintiffs’ also say that the DOC videotapes strip searches, suggesting that this is an unreasonable encroachment on the inmates’ privacy. Pls.’ Opp’n Def.’s Mot. Summ. J. [229] 44. It presents the affidavit of a lawyer who says he viewed a videotape of a strip search conducted at the DC Jail sometime in 2010. Pls.’ Ex. 1090 ¶ 1–3. It is unclear whether the strip searches were videotaped covertly or not. Plaintiffs have not claimed, and have presented no evidence, that any plaintiff or class member is depicted in any video recording of strip searches at the DC Jail.
The District says that the DOC began videotaping strip searches in April 2008, i n response to a complaint from a trans-gender inmate. Godwin Decl. [243-1] ¶ 3. Before the DOC stopped videotaping strip searches in February 2011 -- after plaintiffs demanded production of
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the videos -- the DOC had a policy of storing only the most current 72 hours of video electronically. Id.
Courts have found, although outside the prison context, that video surveillance is subject to a greater degree of scrutiny under the Fourth Amendment than a manual search. U.S. v. Gonzalez, 328 F.3d 543, 548 (9th Cir. 2003). While prisoners lose many rights when they are legitimately incarcerated, certain fundamental privacy rights are retained: “they are not like animals in a zoo to be filmed and photographed at will . . . .” Houchins v. KQED, Inc., 438 U.S. 1, 5 n.2 (1978). Nevertheless, whatever privacy rights prisoners do retain are severely limited by “what must be considered the paramount interest in institutional security.” Hudson v. Palmer, 468 U.S. 517, 528 (1984).
The District has presented evidence that the videos were made in response to an inmate complaint, suggesting they were created for the legitimate purpose of monitoring the behavior of correctional officers and prisoners during the strip searches. Plaintiffs have presented no evidence suggesting that the videotaping was excessive or undertaken for the amusement of DOC staff. The reasonableness of the DOC’s policy of videotaping strip searches is supported by the District’s claim that only 72 hours of video was retained at any given time, limiting the availability of the videos for purposes other than investigating inmate or staff complaints within that time period.
Looking at these facts in the light most favorable to the District for summary judgment purposes, this factor as well weighs in favor of the reasonableness of the DOC’s strip-search policy.
ii. Justification for the search
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This factor is very problematic for the DOC. Plaintiffs argue that the District hasn’t supported the DOC’s blanket strip-search policy by identifying the specific security concerns justifying the strip searches of court returns entitled to release absent individualized suspicion. Pls.’ Mem. [217-1] ¶ 57. Plaintiffs go further, stating that the policy “serve[s] no peneological [sic] interest.” Id.
In response, the District offers the testimony of a correctional system expert. S he concluded that the DOC’s policy of strip searching any persons who are returned to the jail following exposure to the public furthers the “legitimate correctional purpose” of protecting the “safety of the public, detainees and staff, as well as the security of the correctional facility.” Def.’s Ex. 6 ¶ 26. The District provided contraband reports, showing various items that inmates have attempted to smuggle into the jail, including razor blades, crack pipes, and makeshift weapons. Def.’s Ex. 15. These facts certainly support the reasonableness of a blanket stripsearch policy, at least as far as it applies to persons who are legitimately introduced into the general jail population.
The District’s only legal support for the DOC’s policy as applied to court returns entitled to release are the Ninth Circuit’s decision in Bull and the Eleventh Circuit’s decision in Powell. Def.’s Opp’n Pls.’ Mot. Summ. J. [228] 24. T he courts in both of those cases upheld against Fourth Amendment challenges prison policies that authorized strip searches of arrestees absent individualized suspicion. Bull v. City and County of San Francisco, 595 F.3d 964, 966 (9th Cir. 2010) (en banc); Powell v. Barrett, 541 F.3d 1298, 1300 (11th Cir. 2008) (en banc). But, as the District concedes, both of those decisions involved blanket strip searches of arrestees, not court returns entitled to release. The assumption in those cases is that jails are processing new inmates
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into the general population, and have determined that maintaining adequate security in that
population requires a policy of blanket strip searches.
Here, however, the strip search class members are subjected to strip searches solely due
to the fact that the DOC has made the unfortunate choice to bring them back into the general
inmate population while the Records Office processes their releases, rather than temporarily
housing them apart from that population. That choice creates the security problem that the
DOC’s strip searches are designed to solve. The District hasn’t offered any penological
justification for this choice. The DOC has other alternatives, which it has either rejected or
dragged its feet on, such as segregating court returns entitled to release in a separate area of the
jail or in the long-delayed Inmate Processing Center. These alternatives would remedy the
obvious inadequacy of the Medical Holding Unit as a solution to the strip search problem, given
that inmates at that facility whose releases are delayed end up back at the DC Jail or the CTF and
strip searched anyway because the MHU has no sleeping quarters. T hese alternatives would
permit the DOC to maintain adequate security among the general inmate population while
permitting court returns entitled to release to avoid the humiliation of yet another visual body cavity strip search at the jail.21
Courts have found that the more intrusive a search is upon personal rights -- and there can
be little doubt that visual body cavity strip searches are among the more intrusive forms of search
-- the greater the showing must be from the government that the search is justified. Justice v.
City of Peachtree City, 961 F .2d 188, 192 (11th Cir. 1992). Since there is no adequate
21 The Court also notes that the number of inmates that the DOC would have to accommodate in order to separate them from the general jail population is very low. Given that the DOC processes between 15,000 and 17,000 releases each year, including both court-ordered releases and sentence expirations, the number of persons who return from court with release orders who would have to be segregated temporarily is less than 47. Therefore the DOC could respect the privacy rights of persons awaiting release pursuant to the DOC’s administrative release process at de minimis cost to the DOC. Indeed, separating court returns from the general inmate population was one of the very reforms promised by the District pursuant to the Bynum settlement agreement years ago. Bynum, 412 F. Supp. 2d 73, 83 (D.D.C. 2006).
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justification for the strip searching of court returns entitled to release without individualized suspicion, the Court finds that this factor weighs heavily in favor of the unreasonableness of the DOC’s policy as applied to the strip-search class.
This Court is required to balance the need for the DOC’s strip searches of court returns entitled to release against the invasion of personal rights that these searches entail. Bell, 441 U.S. at 559. Strip searches, particularly body-cavity inspections, constitute significant invasions of inmates’ personal privacy. Id. at 560; Florence, 621 F .3d at 307. Such inspections “are invasive and embarrassing.” Bull, 595 F.3d at 975. The invasions in this case are particularly suspect given that they are happening to persons who are no longer prisoners in the eyes of the law, who are not individually suspected of carrying contraband, and who are entitled to a restoration of the rights they enjoyed prior to their imprisonment. And the DOC’s invasion of their personal rights is balanced against nothing, because the DOC’s blanket strip searches of court returns entitled to release are needless, a product of the DOC’s insistence on maintaining a policy that subjects free men and women to degrading treatment when reasonable alternatives are readily available.
While the other Bell factors weigh in favor of a determination of reasonableness, the utter lack of a reasonable justification for the blanket strip searches of court returns entitled to release is so extreme that a conclusion of unreasonableness is compelled. See Byrd v. Maricopa County Sherriff’s Dep’t, 629 F.3d 1135, 1143 ( 9th Cir. 2011) (finding that a strip search violated the Fourth Amendment when two Bell factors suggested reasonableness while the other two suggested extreme unreasonableness). As such, the DOC’s blanket strip search policy, as applied to court returns entitled to release, is unreasonable and violates the Fourth Amendment of the Constitution.
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b. The District’s liability Plaintiffs can establish the District’s liability for the deprivation of constitutional rights involved in their strip searches if they show that these violations were caused by the execution of official policy. Monell, 436 U .S. at 694. “ Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82 (1986). Whether an official has authority to make municipal policy is a question of state law. Id. at 483. The strip search policy in this case wasn’t set by a low-ranking municipal employee at the DOC, but by its Director. Def.’s SMF [211-1] at Ex. 4. The Director heads the Department of Corrections, and is appointed by the Mayor. D.C. Code § 24-211.01(a) (2011). The DOC has the power under District of Columbia law to promulgate rules and regulations for the government of the District’s correctional facilities, “with the approval of the Council . . . .” Id. As such, the Director of the DOC has final policymaking authority with respect to the strip search policy at issue in this case. See Proffit v. District of Columbia, 790 F. Supp. 304, 309 (D.D.C. 1991) (“[T]he Director of the D.C. Department of Corrections promulgated the search policy at issue and, under D.C. law, is responsible for its enforcement as the final policymaking authority.”). Nor is there any doubt that the policy caused the constitutional deprivations in this case, since these deprivations flowed directly from, and were mandated by, the policy. See Arnold v. District of Columbia, 211 F. Supp. 2d 144, 150 (D.D.C. 2002) (Noting that proof of causation regarding an official policy requires only evidence of the policy statement itself). Therefore, because plaintiffs have demonstrated that the DOC’s practice of strip searching all court returns entitled to release, without individualized suspicion, violates the Fourth Amendment, and because that policy was promulgated by an official with final authority
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to establish such policies for the District and caused plaintiffs’ and class members’ constitutional deprivations, the District is liable.
For these reasons, the Court will grant plaintiffs’ Motion for Summary Judgment as to its Fourth Amendment strip search claim against the District, and will deny the District’s Motion for Summary Judgment as to that same claim. This ruling applies to all members of the strip search class and all parts of the class period.
4. Fifth Amendment violations for the strip searches Plaintiffs’ Fifth Amendment claim as to the strip searches fails. The Supreme Court has stated that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of governmental behavior, that Amendment, not the generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (citations and internal quotations omitted). The Fourth Amendment, in prohibiting unreasonable searches, is clearly the explicit textual source of constitutional protection against the governmental conduct alleged in this case. Plaintiffs’ challenge to the reasonableness of the DOC’s strip searches of court returns entitled to release is properly analyzed under the Fourth Amendment, not the Fifth. See Conn v. Gabbert, 526 U.S. 286, 293 (1999); Lyles v. Micenko, 468 F. Supp. 2d 68, 73 n.5 (D.D.C. 2006). Therefore the Court denies plaintiffs’ Motion for Summary Judgment in regards to their Fifth Amendment challenge to the strip searches, and grants defendant’s Motion for Summary Judgment as to that same issue. B. Plaintiffs’ Non-Consent Motion [292] to Strike “Defendant’s Notice Regarding
Filing Analysis of Late Releases, Document Number 244.”
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Plaintiffs also move to strike from the record the District’s Notice Regarding Filing Analysis of Releases, Def.’s Notice [244], Mar. 23, 2011 , as well as Exhibit 1 to that Notice, which is a six-page DOC report titled, “Analysis of Releases between September 1, 2005 a nd August 31, 2006: Appropriate and Late Release Rates.”
The District submitted that Notice and the attached report on March 23, 2011, about three weeks after it f iled its Opposition to Plaintiffs’ Motion for Summary Judgment. T he District says that it in advertently failed to include the attached document along with its Opposition. Def.’s Notice [244]. The “Analysis of Releases” is referenced several times in the District’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute, which accompanied the District’s Opposition to Plaintiffs’ Motion for Summary Judgment. Every indication suggests that the District’s failure to include the document was a mere oversight. Also, plaintiffs themselves entered the very same DOC report into the record well over a year ago, as an exhibit to Plaintiffs’ Opposition to Defendant’s Motion for Protective Order. Pls.’ Opp’n Def.’s Mot. Protective Order [91-1], Mar. 3, 2010.
Plaintiffs seek to have the Notice and the attached “Analysis of Releases” report struck on several grounds. First, plaintiffs argue that the District’s Notice constitutes a modification of the Court’s scheduling order in this case, and therefore should have been filed as a motion upon “good cause” under Rule 16(b)(4) of the Federal Rules of Civil Procedure. Pls.’ Mot. Strike [292] 4. Plaintiffs claim that the District, before submitting its “Analysis of Releases,” should have asked for leave to reopen discovery. Id. This argument is meritless. As an initial matter, motions to strike are generally disfavored, and plaintiffs “must shoulder a formidable burden” for such a motion to be granted. United States ex. rel. Hockett v. Columbia/HCA Healthcare Corp., 498 F. Supp. 2d 25, 34–35 (D.D.C. 2007). Plaintiffs themselves entered this very document into
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the record in March 2010. The Court is unable to fathom how plaintiffs could possibly be surprised or prejudiced by the District’s minor bungle, given that plaintiffs have had the document for well over a year and themselves put it into the record. Nor have plaintiffs provided any basis for believing that the District’s failure to attach the document was anything other than a simple oversight.
Second, plaintiffs argue that the “Analysis of Releases” should be struck because it doesn’t qualify as an affidavit under Rule 56 of the Federal Rules of Civil Procedure. Pls.’ Mot. Strike [292] 6. However, this “Analysis of Releases” doesn’t even purport to be an affidavit, declaration, or any type of sworn statement, so none of those requirements are in any way germane.
Third, plaintiffs argue that the “Analysis of Releases” expresses expert opinion testimony, but that the District did not make the expert disclosures required by Rule 26 of the Federal Rules of Civil Procedure. Id. at 7. But this “Analysis of Releases” doesn’t purport to be, and is not, expert witness testimony; it is clearly a report created by DOC staff, dated March 16, 2007. It summarizes the Records Office’s analysis of several thousand inmate jackets to determine how many inmates were released late during the first year of the class period. While the document does not indicate its author, it says that it was created for the DOC’s former Director, Devon Brown. For these reasons, the document is not an expert report or expert testimony, and so doesn’t implicate the disclosure requirements of Rule 26 of the Federal Rules of Civil Procedure.
Therefore plaintiffs’ Motion will be denied. C. Plaintiffs’ Notice [306] in Response to Discrepancy Reports Submitted by the
District
47

At the June 1, 2011 he aring on the parties’ motions for summary judgment, the Court asked the District to provide additional evidence concerning the number of overdetentions during the class period in order to correct a rather glaring defect in the District’s evidentiary support for its Motion for Summary Judgment. In particular, the Court requested that the District provide the actual “discrepancy reports” referred to in its Memorandum in Support of its Motion for Summary Judgment. See Def.’s Mem. [211] 25. T he District had only attached to its Memorandum graphical representations of discrepancy report data, which provided no proper evidentiary support for these overdetention numbers. See Def.’s Ex. 7. The Court also requested that the District provide the definition of “overdetention” used by the DOC to arrive at these overdetention figures.
On June 9, 2011, the District filed a Notice [301] of Filing Additional Evidence, and delivered under seal to both the Court and plaintiffs a large collection DOC “discrepancy report” records of overdetentions for the period January 2007 to May 2011. Def.’s Notice [302], Jun. 9, 2011. The District also supplied an affidavit from the DOC’s Records Administrator indicating the definition of “overdetention” used in the creation of these records. Souverain Decl. [301-2] ¶ 3. The DOC’s Records Administrator also stated her familiarity with these discrepancy reports, what they contain, and how overdetentions listed in them are identified. Id.
On June 21, 2011, p laintiffs’ filed this Notice [306] to respond to the District’s recent submission of additional evidence. The Court has considered this Notice in its resolution of the parties’ motions for summary judgment.
The Court has only a few comments on plaintiffs’ Notice. Plaintiffs incorrectly state that the discrepancy reports cover the period “March 1[,] 2007 to the present,” P ls.’ Notice [306] Jun. 21, 2011 at 2, but if plaintiffs had read a few more pages into the District’s evidence they
48

would have seen that in fact they cover the period January 2007 to May 2011. P laintiffs then opine that this evidence is only admissible “against the District” pursuant to Federal Rule of Evidence 801(d)(2)(C) and (D). Id. at 3. But it is this Court’s determination that the discrepancy reports are admissible hearsay pursuant to Federal Rule of Evidence 803(6), which creates an exception to the hearsay rule for business records. T herefore the discrepancy reports are admissible for all purposes, not just against the District as desired by plaintiffs.
Plaintiffs also apparently object that the reports “by themselves do not establish that these were the only over detentions [sic] during the period,” Pls.’ Notice [306] 3, but it is unclear what plaintiffs mean by this. T o the extent that plaintiffs’ and the District’s overdetention numbers come into conflict, the jury can sort out whose numbers are credible. IV. CONCLUSION
For the reasons stated herein, the Court will grant in part and deny in part plaintiffs’ Motion [217] for Summary Judgment, and will grant in part and deny in part the District’s Motion [211] for Summary Judgment. The Court will also deny plaintiffs’ Non-Consent Motion [271] to Strike “Defendant’s Notice Regarding Correction in Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute, Document Number 228-7” and deny plaintiffs’ NonConsent Motion [292] to Strike “Defendant’s Notice Regarding Filing Analysis of Late Releases, Document Number 244.”
A separate Order consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on June 24, 2011.
49

Case 1:06-cv-00315-RCL Document 308 Filed 06/24/11 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

)

CARL BARNES, et al.,

)

Plaintiffs,

)

)

v.

)

Civil Action No. 06-315 (RCL)

)

DISTRICT OF COLUMBIA,

)

Defendant.

)

)

_______________________________________)

ORDER For the reasons stated in the accompanying Memorandum Opinion filed this date, it is hereby ORDERED, that Plaintiffs’ Motion [217] for Summary Judgment is:
i. GRANTED as to their Fifth Amendment claim for the overdetention of any overdetention class member during any part of the class period who was overdetained because of the District’s “10 p.m. cut-off” ordinance;
ii. GRANTED as to their Fifth Amendment claim for the overdetention of any overdetention class member who was overdetained during the period September 1, 2005 to December 31, 20061;
iii. DENIED as to their Fifth Amendment claim for the overdetention of any overdetention class member whose overdetention was not caused by the District’s “10 p.m. cut-off” ordinance and who was overdetained during the period January 1, 2007 to the present;
1 For the purpose of determining which members of the overdetention class belong in this and other subperiods in this Order, an overdetention class member will be deemed to have been overdetained on the date on which he or she was entitled to release by court order or the date on which the basis for his or her detention had otherwise expired.

Case 1:06-cv-00315-RCL Document 308 Filed 06/24/11 Page 2 of 3
iv. DENIED as to their Fourth Amendment claim for the overdetentions of all overdetention class members during all parts of the class period;
v. GRANTED as to their Fourth Amendment claim for any strip search of any member of the strip search class during all parts of the class period; and
vi. DENIED as to their Fifth Amendment claim for the strip searches of all strip search class members during all parts of the class period; and it is further
ORDERED that Defendant’s [211] Motion for Summary Judgment is: i. DENIED as to Plaintiffs’ Fifth Amendment claim for the overdetention of
any overdetention class member during any part of the class period who was overdetained because of the District’s “10 p.m. cut-off” ordinance; ii. DENIED as to Plaintiffs’ Fifth Amendment claim for the overdetention of any overdetention class member who was overdetained during the period September 1, 2005 to December 31, 2006; iii. DENIED as to Plaintiffs’ Fifth Amendment claim for the overdetention of any overdetention class member whose overdetention was not caused by the District’s “10 p.m. cut-off” ordinance and who was overdetained during the period January 1, 2007 to February 25, 2008; iv. GRANTED as to Plaintiffs’ Fifth Amendment claim for the overdetention of any overdetention class member whose overdetention was not caused by the District’s “10 p.m. cut-off” ordinance and who was overdetained during the period February 26, 2008 to the present;

Case 1:06-cv-00315-RCL Document 308 Filed 06/24/11 Page 3 of 3
v. GRANTED as to Plaintiffs’ Fourth Amendment claim for the overdetentions of all overdetention class members during all parts of the class period;
vi. DENIED as to Plaintiffs’ Fourth Amendment claim for the strip searches of any member of the strip search class during all parts of the class period; and
vii. GRANTED as to Plaintiffs’ Fifth Amendment claim for the strip search of any member of the strip search class during all part of the class period; and it is further
ORDERED that Plaintiffs’ Non-Consent Motion [271] to Strike “Defendant’s Notice Regarding Correction in Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute, Document Number 228-7” is DENIED; and it is further
ORDERED that Plaintiffs’ Non-Consent Motion [292] to Strike “Defendant’s Notice Regarding Filing Analysis of Late Releases, Document Number 244” is DENIED; and it is further
ORDERED that, consistent with the Court’s March 26, 2007 Memorandum Opinion [34], Plaintiffs’ Eighth Amendment claim for the overdetentions of members of the overdetention class is DISMISSED; and it is further
ORDERED that the Clerk of the Court shall promptly set a status conference to schedule further proceedings herein.
SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on June 24, 2011.

 
 Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

924 F.Supp.2d 74 United States District Court,
District of Columbia.
Carl A. BARNES, et al., Plaintiffs, v.
The DISTRICT OF COLUMBIA, Defendant.
Civil No. 06–315 (RCL). | Feb. 14, 2013.
Synopsis Background: Inmates at local jails brought putative class action, under § 1983, against District of Columbia, alleging that their overdetentions violated their Fourth, Fifth, and Eighth Amendment rights. Following certification of classes, parties filed pretrial motions in limine to exclude or limit certain evidence from being introduced at liability trial.
Holdings: The District Court, Royce C. Lamberth, Chief Judge, held that:
[1] records of inmate overdetentions constituted admissible hearsay evidence under business records exception;
[2] evidence of settlement in related class action was admissible under “other purposes” exception of rule governing admission of settlement evidence;
[3] expert’s testimony regarding total number of overdetentions occurring during particular periods was admissible; and
[4] evidence regarding strip searches performed on inmates at jail was not admissible.
Motions granted in part and denied in part.
Attorneys and Law Firms
*77 William Charles Cole Claiborne, III, Ralph Douglas Robinson, Law Office of William Claiborne, III, Washington, DC, Barrett S. Litt, Paul J. Estuar, Stacey R. Brown, Litt, Estuar, Harrison & Kitson, LLP, Los Angeles, CA, for Plaintiffs.

Ellen A. Efros, Grace Graham, Andrew J. Saindon, Keith David Parsons, Office of the Attorney General, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION
(RESOLVING PARTIES’ MOTIONS IN LIMINE )
ROYCE C. LAMBERTH, Chief Judge.
I. BACKGROUND AND PROCEDURAL HISTORY This case concerns the District of Columbia Department of Corrections’ (“DOC”) practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject to overdetentions and strip searches, filed a class action against the District of Columbia (“District”) over six years ago. Compl., Feb. 23, 2006, ECF No. 1. This long-running case is virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02–956(RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity with its prior opinions, which set forth the background of this class-action litigation in greater detail. See, e.g., Barnes v. District of Columbia, 793 F.Supp.2d 260, 265 (D.D.C.2011) (discussing background of case up to summary judgment stage).
In June 2011, the Court granted plaintiffs’ Motion for Summary Judgment as to the District of Columbia’s liability for any overdetentions at its jails, throughout the class period, caused by the DOC’s application of the so-called “10 p.m. cut-off” rule, and all overdetentions occurring from September 1, 2005 to December 31, 2006. Id. at 286. The Court granted the District’s Motion for Summary Judgment as to overdetentions occurring from February 26, 2008 forward that were not caused by the DOC’s enforcement of the 10 p.m. cut-off rule. Id. The Court denied both parties’ motions as to the District’s liability for overdetentions that occurred from January 1, 2007 to February 25, 2008 (the “Trial Period”) that were not caused by the DOC’s enforcement of the 10 p.m. cut-off rule. Id. at 286 & n. 18. The District’s *78 liability for that subset of overdetentions remains undetermined
1

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
pending trial.
On March 1, 2013, a jury trial regarding the District’s liability for overdetentions during the “Trial Period” will commence. Before the Court are the parties’ pretrial motions in limine to exclude or limit certain evidence from being introduced at the upcoming liability trial. The plaintiffs filed a motion styled as Plaintiffs’ Motion in Limine No. 1 to Exclude Introduction of Evidence of the District of Columbia’s Overdetention Numbers for the Trial Period, Jan. 11, 2013, ECF No. 410. The District has filed an “Omnibus Motion in Limine,” encompassing five separate motions in limine. Def.’s Mot. in Limine, Jan. 11, 2013, ECF No. 409. Upon consideration of these motions, the oppositions and replies thereto, and the record herein, the Court will deny plaintiffs’ motion and grant in part and deny in part the District’s motion.
II. LEGAL STANDARD [1] While neither the Federal Rules of Civil Procedure nor the Federal Rules of evidence expressly provide for motions in limine, the Court may allow such motions “pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Motions in limine are “ ‘designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.’ ” Graves v. District of Columbia, 850 F.Supp.2d 6, 10 (D.D.C.2011) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990)). As Judge Kollar–Kotelly thoroughly explained in Graves:
Broadly speaking, the Federal Rules of Evidence permit the admission of “relevant evidence”—that is, evidence that “has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence,” Fed.R.Evid. 401—provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, Fed.R.Evid. 402, and its probative value is not “substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence,” Fed.R.Evid. 403.
In light of their limited purpose, motions in limine “should not be used to resolve factual disputes,” which remains the “function of a motion for summary judgment, with its accompanying and crucial procedural safeguards.” C & E Servs., Inc. v. Ashland

Inc., 539 F.Supp.2d 316, 323 (D.D.C.2008)....In other words, “[f]actual questions should not be resolved through motions in limine,” Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 871 (W.D.Mich.2008) (citation omitted), nor is a motion in limine a “vehicle for a party to ask the Court to weigh the sufficiency of the evidence,” Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp.2d 508, 532 (D.N.J.2008). Rather, parties should target their arguments to demonstrating why certain items or categories of evidence should (or should not) be introduced at trial, and direct the trial judge to specific evidence in the record that would favor or disfavor the introduction of those particular items or categories of evidence. U.S. ex rel. El–Amin v. George Washington Univ., 533 F.Supp.2d 12, 19 (D.D.C.2008). In short, motions in limine are a means for arguing why “evidence should or should not, for evidentiary reasons, be introduced at trial.” Williams v. Johnson, 747 F.Supp.2d 10, 18 (D.D.C.2010) (emphasis in original).
*79 In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge’s discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. [See, e.g.,] United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987).... The trial judge has the “discretion to rule in limine or to await developments at trial before ruling.” Stephen A. Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02[13] (9th ed. 2006). “[I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.” Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).
Id. at 10–11. While the Court has broad discretion to make judgments about whether proffered evidence is sufficiently relative or overly prejudicial, see United States v. Project on Gov’t Oversight, 526 F.Supp.2d 62, 66 (D.D.C.2007), the Court should remember that making counsel object to inadmissible evidence at trial may “emphasize[ ] the evidence before the jury.” Banks v.
2

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
District of Columbia, 551 A.2d 1304, 1310 (D.C.1988); see also 75 AM.JUR.2D. TRIALL § 94 at 306–307 (1991) (“the mere asking of an improper question in the hearing of the jury may prove so prejudicial that, notwithstanding an instruction by the court to disregard the offensive matter, the moving party will be denied his right to a fair trial”).
III. PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE DISTRICT’S OVERDETENTION NUMBERS AND DISCREPANCY REPORTS The plaintiffs ask this Court to “exclude any testimony, introduction of, or reference to, evidence of the District of Columbia’s discrepancy reports (regardless of file type or format), graphs summarizing said reports, as well as any testimony, introduction of, or reference to, the District’s overdetention numbers from January 1, 2007–February 25, 2008 (the “Trial Period”), which are based on the District’s discrepancy reports.” Pls.’ Mot. in Limine 1.
The plaintiffs claim that (1) “the District’s overdetention numbers and discrepancy reports are not supported by reliable methodology and are misleading”; (2) “[t]he District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable” and the District has failed to designate an expert; and (3) witnesses “who testify about the District’s total overdetention numbers and discrepancy reports are offering lay opinion testimony or expert opinion testimony ... based on unreliable methodology” that could mislead or confuse the trier of fact. Id. 2.
Beginning in January 2007, the District’s Department of Corrections began systematically tracking overdetentions through “discrepancy reports”—documents which list individual overdetentions and the purported reasons for those overdetentions. Barnes, 793 F.Supp.2d at 270. A declaration filed by Kathy Souverain, the Records Administrator at the DOC since March 2007, describes the process of *80 creating these discrepancy reports. Souverain Decl., June 7, 2011, ECF No. 301–2. According to Ms. Souverain:
I am familiar with the discrepancy reports produced by the DOC from July 2007 forward. These reports indicate the number of over-detentions that occur each month....In order to identify an over-detention, the DOC runs a

“Crystal Report,” which identified who have been potentially over-detained. The institutional file of each inmate on this list is then reviewed by hand and a notation is entered into Lotus Notes as to whether the inmate was over-detained or not. An overdetention is defined as anyone released after 11:59 PM on the day they were released, or alternately, situations where the end of sentence calculation was computed incorrectly.
Souverain Decl. ¶ 2–3. The DOC creates the discrepancy reports by running a Lotus Notes query in the institutional file system, JACCS, to identify potential overdetentions, and this preliminary data is individually reviewed by individual DOC employees who enter a notation into Lotus Notes. The discrepancy reports represent the net product of this process, and have been created contemporaneously on a monthly basis from January 2007 to May 2011. See, e.g., Souverain Decl.; ECF No. 302 (copies of all discrepancy reports).
The Court is on well tread ground here. The plaintiffs have repeatedly asked the Court to exclude the District’s discrepancy reports, and the Court has refused to do so each time. The plaintiffs first challenged the admissibility of the discrepancy reports on June 21, 2011, ECF No. 301; the Court rejected plaintiffs’ arguments when resolving summary judgment, and determined “that the discrepancy reports are admissible hearsay pursuant to Federal Rule of Evidence 803(6), which creates an exception to the hearsay rule for business records” and held that the discrepancy reports “are admissible for all purposes [.]” Barnes, 793 F.Supp.2d at 293. At that time, the plaintiffs objected to the reports because “by themselves [they] do not establish that these were the only over detentions [sic ] during the period,” ECF No. 306. The plaintiffs make a similar argument in their Motion in Limine, repeating it at the most recent pretrial hearing. When the Court first considered this argument, it decided that “[t]o the extent that the plaintiffs’ and the District’s overdetention numbers come into conflict, the jury can sort out whose numbers are credible.” Barnes, 793 F.Supp.2d at 293. The fact that the District’s discrepancy reports do not include all the overdetentions the plaintiffs think the reports should goes to the weight of the evidence, not necessarily its admissibility. Cf. Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C.2011)
3

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

(motions in limine should not be used to resolve factual disputes or ask the court to weigh the sufficiency of evidence).

Thereafter, the plaintiffs asked the Court (for the first time) to reconsider its summary judgment opinion, in part based on their argument that the discrepancy reports are inadmissible. Pls.’ First Mot. Reconsideration 8–11, Nov. 1, 2011, ECF No. 320. The Court denied reconsideration, again rejecting plaintiffs’ position on the admissibility of the discrepancy reports. Order Denying Mot. Reconsideration 3, Dec. 7, 2011, ECF No. 327.
After discovery, the plaintiffs again attacked the credibility and reliability of the discrepancy reports through a motion to compel, claiming that the District has not provided the entire release discrepancy database1 and other documents and data the *81 District used to generate the final discrepancy reports. Pls.’ Mot. Compel 5–9, June 25, 2012, ECF No. 362. The Court ordered the District to release the database query it used to help generate the reports, but otherwise found that plaintiffs did not meet their burden of showing that the District’s production was incomplete. Barnes v. District of Columbia, 289 F.R.D. 1, 21–25, 2012 WL 4466669, *21–*25 (D.D.C.2012). “The Court urge[d] the plaintiffs to work diligently and quickly, after receiving the correct query, to determine if any files are missing, so discovery for the liability phase may finally come to an end.” Id. at 25, at *25. The plaintiffs did not use this newly produced query to form the basis of a new motion to compel, argue that data was missing, or update expert reports after reviewing the newly produced query. The plaintiffs stated at a pretrial hearing that they did not intend to file any new motions or update their expert reports based on their examination of this query.

1

The “release discrepancy database” refers to a set of

data, pulled from a database via a specific search query,

that the DOC identified as possible overdetentions, and

then reviewed in drafting its final discrepancy reports.

See Barnes v. District of Columbia, 289 F.R.D. 1,

19–25, 2012 WL 4466669, *19–*25 (D.D.C.2012).

On September 7, 2012, the plaintiffs again asked the Court to reconsider its decision to admit the discrepancy reports; they further requested that the Court, upon throwing out the discrepancy reports, enter summary judgment for the plaintiffs. ECF No. 387. The Court again rejected this request, finding that the plaintiffs’ arguments did not present any new issues, and the

plaintiffs were really asking the Court to weigh evidence and resolve factual issues. See Mem. Op. & Order Denying Reconsideration 3–6, Oct. 31, 2012, ECF No. 399.
There are many problems with the plaintiffs’ so-called motion in limine. First, virtually all of the plaintiffs’ arguments against the discrepancy reports go to the weight of the evidence, not its admissibility. Cf. D.L. v. District of Columbia, 820 F.Supp.2d 27, 30 (D.D.C.2011). As contemporaneous business records, representing the DOC’s attempt to systematically track overdetentions, the discrepancy reports do not have to meet the same standards for “accepted methodology” that apply to expert reports. Essentially, the plaintiffs ask the Court, yet again, to decide that their expert reports represent the correct total number of overdetentions, and that the District’s numbers are inaccurate. The plaintiffs have “cloaked a motion for summary judgment in the form of a motion in limine, but the deadline to file dispositive motions has long since passed.” Williams, 747 F.Supp.2d at 20; see also Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D.Mich.2009) (“[M]otions in limine are meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions disguised as motions in limine.”) (internal quotation marks and citation omitted). The last time the plaintiffs asked the Court to exclude the District’s discrepancy reports, they said that excluding such evidence would require the Court to enter summary judgment for the plaintiffs. Pls.’ Second Mot. Reconsideration, Sept. 7, 2012, ECF No. 387. This indicates that this “new” motion to exclude the discrepancy reports is really a dispositive motion in disguise. The plaintiffs “misconstrue[ ] the purpose of a motion in limine, which should not be used to resolve factual disputes among the parties.” Williams, 747 F.Supp.2d at 20.
Another problem this Court has is that this motion in limine is essentially a motion for reconsideration of motion for reconsideration. *82 On September 7, 2012, the plaintiffs filed a lengthy Motion for Reconsideration of Court’s Decision to Admit District’s PDF Discrepancy Reports and to Deny Summary Judgment to Plaintiffs’ for the Trial Period. ECF No. 387. In denying reconsideration, the Court stated:
Plaintiffs’ Motion for Reconsideration relies on many of the same claims the plaintiffs made about the District’s production in their Motion to Compel the Release Discrepancy Database. Compare [Pls.’ Second Mot. Reconsideration] at 24–41, with Pls.’ Mot. to
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Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

Compel Release Discrepancy Database 5–9, June 25, 2012, ECF No. 362. This Court, denying in part plaintiffs’ motion to compel, found the plaintiffs did not meet their burden of showing the District withheld discrepancy reports or otherwise discoverable data relating to the disputed period. Barnes v. Dist. of Columbia, 289 F.R.D. 1, 20–26, 2012 WL 4466669, *20–*26 (D.D.C.2012)....
In finding that the District’s Discrepancy Reports raised a genuine issue of material fact [at summary judgment], the Court did not declare that the District’s reports accurately reflect the number of overdetentions. It found—with all reasonable inferences drawn in favor of the District—that a reasonable jury could find these reports credible. Barnes, 793 F.Supp.2d at 280. Unlike the Analysis of Releases, the Discrepancy Reports were more than a “conclusory allegation that the plaintiffs’ numbers ... are wrong, and nothing more.” Id. at 279....
The plaintiffs stress that the District’s Discrepancy Reports are incomplete, based on faulty methods, and underestimate overdetentions. [Pls.’ Second] Mot Reconsideration 24–41. The plaintiffs are free to make these arguments to a fact-finder and convince a ... jury2 that their numbers are correct. By denying plaintiffs’ Motion for Reconsideration, the Court does not choose between either parties’ overdetention estimates. It merely holds that the plaintiffs have not convinced the Court that the District’s numbers are so flawed, so baseless that they amount to a mere conclusory allegation that plaintiffs’ numbers are wrong. If the Court grants reconsideration and enters summary judgment for plaintiffs, in effect it would weigh evidence and resolve factual issues.

2

The Court had originally said “judge or jury,” in case

the parties later agreed to a bench trial on liability.

Mem. Op. & Order Denying Reconsideration 5–6, Oct. 31, 2012, ECF No. 399. In that opinion, the Court emphasized that this issue had been repeatedly argued:
The plaintiffs have raised doubts as to the accuracy and completeness of the District’s Discrepancy Reports. See, e.g., ECF Docket Entries 362, 373, 387, 395, 398. The District has raised objections to the plaintiffs’ expert reports and their estimates of overdetentions.

See, e.g., ECF Docket Entries 365, 369, 376–2, 381, 383, 393. The District has also defended the completeness of its production and the integrity of its Discrepancy Reports. See, e.g., ECF Docket Entries 369, 376–2, 393, 394. In order to resolve these disputes, the Court would need to weigh competing evidence and resolve issues of fact.
Id. at 6–7. Other than arguing that the District needs expert testimony to introduce the reports, the plaintiffs’ arguments are basically the same as those previously, and repeatedly, rejected by this Court. Not only are plaintiffs using a motion in *83 limine as a backdoor motion for summary judgment, but are also using it as a backdoor motion to reconsider. The Court is full well aware that the plaintiffs object to its decision to admit the discrepancy reports, as the plaintiffs should be full well aware that this Court believes it is proper for the jury to decide whose overdetention numbers are accurate and credible.
The plaintiffs raise one new objection to the discrepancy reports—namely that the “District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable” and any opinion testimony used to support the reports and overdetention numbers would be opinion testimony “based on an unreliable methodology.” Pls.’ Mot. in Limine 2.
[2] The discrepancy reports are not expert reports. They are business records—created not in anticipation of litigation, but in the normal course of business—that do not require a Rule 26(a)(2) designated expert to authenticate them. Like the District’s earlier “Analysis of Releases,” the discrepancy reports “[do not] purport to be, and [are] not expert witness testimony; [they are] clearly [ ] report[s] created by DOC staff” summarizing the monthly count of overdetentions. Barnes, 793 F.Supp.2d at 292. Testimony from a DOC official familiar with how these reports were generated, what criteria and methodology were used, et cetera, is direct testimony concerning the DOC’s business records. It is not expert testimony.
[3] The Court also agrees with the District’s alternative argument that the Court could, if necessary, admit “ ‘lay opinion testimony’ to explain and interpret the District’s discrepancy reports,” Def.’s Opp’n 6. The opinions or
5

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
inferences offered by Jeannette Myrick—who has extensive personal experience with reviewing inmate jackets and identifying potential overdetentions—would be “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Hall v. CIA, 538 F.Supp.2d 64, 69 (D.D.C.2008) (quoting Fed.R.Evid. 701). There is no need for the Court serve as a “gatekeeper”—ensuring that expert testimony is “valued,” with conclusions based on “good grounds,” Groobert v. President and Directors of Georgetown College, 219 F.Supp.2d 1, 6 (D.D.C.2002)—“for instances involving lay opinion testimony.” United States v. Eiland, 2006 WL 2844921, *2 (D.D.C. Oct. 2, 2006).
[4] Lay opinion testimony is admissible if “the specialized knowledge at issue was gained though experience rather than though scientific or technical training,” so long as the witness testified “based solely on personal experience with the case at issue.” Armenian Assembly of Am. v. Cafesjian, 746 F.Supp.2d 55, 65 (D.D.C.2010). People at different jobs can obtain different kinds of “specialized knowledge” based on their training and experiences at that job. See, e.g., United States v. Lawson, 653 F.2d 299, 303 (7th Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) (concluding that lay opinion testimony by FBI agents as to defendant’s sanity was properly admitted despite fact that the agents had little opportunity to view the defendant); United States v. Mastberg, 503 F.2d 465 (9th Cir.1974) (permitting under Rule 701 the testimony of a customs inspector that the defendant appeared nervous); State v. Johnson, 221 Mont. 503, 719 P.2d 1248, 1256–57 (1986) (holding that, in a prosecution for driving under the influence of alcohol, a police officer was properly allowed to testify as a lay witness on the basis of his own *84 experience as to what generally happens to a car when its power steering fails, where he had worked on vehicles of all kinds for over ten years and had experienced power steering failure several times); State v. Hall, 353 N.W.2d 37, 43 (S.D.1984) (permitting police officers to give lay opinion concerning defendant’s intoxicated state, under state rule analogous to Federal Rule of Evidence 701). Any “specialized knowledge” the District’s witness would need to comment on how the DOC compiled the discrepancy reports and reviewed inmate jackets would be based on the witness’ experience with said reports. Therefore, even if lay opinion testimony is needed to testify about the discrepancy reports, the testimony of Jeannette Myrick—who has direct experience reviewing inmate

jackets and potential overdetentions—would qualify as such.3

3

Jeanette Myrick’s extensive experience with reviewing

inmate jackets and tracking overdetentions might have

qualified her as an expert witness outright, similarly to

how Mr. Day’s experience with analyzing

overdetention data qualifies him as an expert witness.

See infra Part IV.C. However, the District’s failure to

timely designate an expert or a rebuttal expert makes

this point moot. See Barnes, 289 F.R.D. at 14–15, 2012

WL 4466669, *13.

[5] The discrepancy reports, and testimony about them, are admissible at the liability trial. However, the Court should refine its earlier statement that the discrepancy reports are “admissible for all purposes.” Barnes, 793 F.Supp.2d at 293. That is not entirely accurate. The District mentioned, at the latest pretrial conference, that it may use the discrepancy reports and related testimony to contest the overdetention numbers provided by the plaintiffs’ experts. Certainly it may do so indirectly—by presenting its overdetention numbers and explaining how the DOC prepared them, the District may provide a compelling alternative to plaintiffs’ numbers, and convince a jury to credit its figures over those provided by the plaintiffs. Ms. Myrick—or any other District witness—cannot speak beyond her personal experience and expertise in tracking overdetentions and preparing reports. Even if Ms. Myrick were qualified to comment on the statistical methods used by plaintiffs’ experts, the District has not designated her as a rebuttal expert. As noted by this Court:
[T]he District passed on several opportunities to timely designate a rebuttal expert.... On March 6, 2010, the District received Mr. Day’s first report on his review of inmate jackets. Def.’s Reply ISO its Mot. to Strike 2, Aug. 15, 2012, ECF No. 381. The District did not then designate a rebuttal expert. On November 15, 2010, Dr. Kriegler released his first expert report, estimating overdetentions based on a stratified random sample of inmate jackets provided by Mr. Day. Id. at 2–3. The District did not then designate a rebuttal expert. On December 2, 2010, Dr. Kriegler revised the numbers in his first expert report. Id. at 3. The District did not then designate a rebuttal expert. On December 13, 2010, Mr. Day filed a supplemental report based on additional reviews of jackets. Id. at 4. The District did not then designate a rebuttal expert. A day later, Dr. Kriegler again revised his first report based on Mr. Day’s new report. Id. The District did not then designate a rebuttal expert. On December 7, 2011, 278 F.R.D. 14
6

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
(D.D.C.2011), the Court reopened limited discovery until April 6, 2012; on February 14, 2012 Dr. Kriegler filed his Second Supplemental Report. Id. at 4–5. The District did not then designate a rebuttal expert. From April 3, 2012 onwards, 281 F.R.D. 53 (D.D.C.2012), the Court extended discovery, eventually setting *85 the deadline for plaintiffs’ supplemental expert reports for June 14, 2012. Id. at 5. The District did not then designate a rebuttal expert. At no time, in the almost two years since receiving the first report, did the District feel the need to designate a rebuttal expert. It is only now, after all the extended deadlines have passed and the Court has stated that “[n]o further extensions of discovery will be permitted,” Order, Apr. 27, 2012, ECF No. 345, that the District decides it might need an expert witness to rebut Mr. Day and Dr. Kriegler’s reports.
Barnes, 289 F.R.D. at 15, 2012 WL 4466669, *13. Not having designated an expert to rebut Mr. Day and Dr. Kriegler’s reports may prove detrimental to the District, but the Court reminds the District that it passed on several opportunities to designate an expert. The District cannot correct for this oversight by using Ms. Myrick and its discrepancy reports as ersatz rebuttal expert testimony.
IV. DEFENDANT’S MOTIONS IN LIMINE
A. Motion to Preclude Mention of Settlement in Bynum The District moves to exclude all evidence or mention of the settlement in Bynum v. District of Columbia, Civil No. 02–956(RCL). The Bynum case dealt with a virtually identical issue—the class plaintiffs claimed that the District’s DOC had a practice of overdetaining and strip searching inmates. See Compl., May 16, 2002, ECF No. 1, 02–cv–956. In fact, Messrs. Barrett Litt, Paul Estuar, and William Claiborne—attorneys of record in the present action—also represented the plaintiffs in Bynum. This Court approved of a settlement in Bynum in January 2006. Bynum v. District of Columbia, 412 F.Supp.2d 73 (D.D.C.2006). The approved settlement provided monetary relief to individual class members who had been overdetained, id. at 77–78, and provided the following class-wide prospective relief:
The parties agree that the injunctive relief objective of this agreement is the elimination of over-detentions and court release strip searches. To that end, the District will, for a

period of two years, provide to Class Counsel annually a report on whether 1) it has strip searched any court returns entitled to release absent individualized reasonable suspicion to do so, and whether 2) it has released any detainees or inmates more than 24 hours after the time they become entitled to release, and the reasons therefore. In addition, under the terms of this settlement elaborated further on in this Order, the District must invest substantial funds in new renovations that will substantially contribute to processing of inmates in the jail.
Id. at 78. Of the $12 million in settlement funds, $3 million was to “revert to the D.C. Department of Corrections to be spent on programs and services which relate to the subject of this complaint,” id. at 79, including “build[ing] a state of the art Inmate Processing Center (IPC) within the foot print of the DC Jail site, which will be a project totaling approximately $5 Million. The additional $2 million required to complete the project will be provided by the District government,” id. at 83. The Bynum settlement also provided:
Neither this Final Order of Approval of Settlement, the Settlement Agreement, nor any of its terms or the negotiations or papers related thereto shall constitute evidence or an admission by the Defendant that any acts of wrongdoing have been committed, and they shall not be deemed to create any inference that there is any liability therefore. Neither this Final Order of Approval of Settlement, *86 nor the Settlement Agreement, nor any of its terms or the negotiations or papers related thereto shall be offered or received in evidence or used for any purpose whatsoever, in this or any other matter or proceeding in any court, administrative agency, arbitration, or other tribunal, other than as expressly set forth in the Settlement Agreement.
7

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
Id. at 87. The District did not admit to any wrongdoing in settling Bynum. Id.
The District strongly objects to the introduction or mention of the Bynum settlement in the upcoming liability trial, claiming it “fails every test of admissibility under the Federal Rules of Evidence.” Def.’s Mot. in Limine 5 (formatting altered). According to the District, the Bynum settlement is irrelevant, precluded by Federal Rule of Evidence 408(a), and unfairly prejudicial, confusing, and cumulative. Id. at 5–8.
[6] First, the Court must consider whether the evidence is relevant. The District argues that the “Bynum class period ended seventeen months before the start of the Trial Period. A prior case about events that took place seventeen months previous and ended in a no-fault settlement does not make it any more or less likely that the District had a pattern and practice of overdetention during the Trial Period.” Id. at 6. Certainly, if the plaintiffs sought to use the Bynum settlement to prove that the District overdetained inmates prior to 2006 and, thus, was more likely to have overdetained thereafter, the Bynum settlement would be of limited probative value. More important, introducing the settlement for this purpose would violate Federal Rule of Evidence 408(a), which provides that evidence of a settlement is not admissible “to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or impeach through prior inconsistent statement or contradiction.” Therefore, the Court will not allow plaintiffs to use or mention the Bynum settlement to suggest that the District had overdetained inmates during the time covered by the Bynum settlement. To allow otherwise would plainly violate Rule 408(a), and the prejudicial effect of this evidence would outweigh its probative value.
The District’s Motion in Limine makes assumptions about how plaintiffs will use the Bynum settlement, but the plaintiffs aver that they
do not seek to introduce the Bynum settlement for the purpose of arguing that, because the District reached a settlement in the Bynum matter they are liable for overdetentions during the Barnes Trial Period. Rather, plaintiffs will introduce the Bynum settlement for the purpose of demonstrating 1) the District had long been on notice of

the ongoing problem of overdetentions in its jails, 2) the District was to accomplish very specific changes in the way it processed out inmates, 3) the District had committed to various alterations in its practice that went unaddressed, and 4) the District’s failure to take steps addressed in the Bynum settlement contributed substantially to the ongoing problem of overdetentions. Such evidence is probative of knowledge, deliberate indifference, and custom and policy.
Pls.’ Opp’n to Def.’s Mot. in Limine 3. The plaintiffs’ focus on the relevance of the prospective and injunctive provisions of the Bynum settlement—in particular its stipulation that DOC use $3 million of the settlement fund to prevent future overdetention problems. Id. at 4. They also wish to use the fact that the Bynum class sued the District to show that the District was on notice of a potential overdetention problem. Id. at 5–6.
*87 [7] For plaintiffs, the issue is not whether DOC was liable for overdetentions prior to the class period, but whether the Bynum suit and the settlement’s injunctive provisions put DOC on notice of a problem, and whether the District’s alleged failure to follow through on the Bynum settlement shows deliberate indifference. When put this way, evidence of the Bynum settlement is clearly relevant to the upcoming liability trial. In fact, this Court found this kind of evidence highly relevant when ruling on summary judgment in this case:
This rolling overdetention problem at the DOC during the first 16 months of the class period is all the more shocking when the Court considers that the DOC and the District were on notice, via the Bynum litigation, that the prevailing release practices were deeply inadequate, and that fundamental change was needed. The Court would have expected, given that lawsuit, a concerted effort on the part of the District and the DOC to identify and eliminate every major contributing factor to the overdetention problem. But that’s not what happened. Even when the facts are viewed in the light most favorable to the District, the DOC’s first meaningful change to the status quo didn’t come until July 2008, when it instituted the courthouse release program, permitting a subset of inmates to be released directly from the Superior Court....
8

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

Other major changes—such as the completion of the Inmate Processing Center, a move to a paperless system to process releases rather than a dogged insistence on releasing inmates only upon receipt of paper court orders, or simply permitting releases based upon faxed (or, to be even more futuristic, scanned and emailed) court orders—were either rejected by the DOC or remain, to this day, caught in a whirlpool of delays. In the meantime, free men and women were treated as prisoners, hoping the DOC’s paper-bound and Byzantine release process would favor them with an on-time release.
Barnes, 793 F.Supp.2d at 279. In granting summary judgment for the plaintiffs for the first sixteen months of the class period, this Court expressed “alarm at the DOC’s lack of urgency in responding to this disturbing pattern of overdetentions despite the notice provided by the Bynum litigation.” Id. If the Court found the Bynum suit, and the injunctive provisions of its settlement, significant to its ruling on summary judgment, certainly those matters could be relevant to liability for the trial period.4

4

The District claims that “the Bynum settlement is poor

evidence for the District’s knowledge during the Trial

Period because Bynum deals, at best, with the situation

in the District’s jails seventeen months before that

time.” Def.’s Mot. in Limine 8 n. 4. Again, this

misconstrues which part of the Bynum settlement

plaintiffs wish to rely on. The injunctive provisions of

the settlement ordered prospective relief. These issues

are not buried a (mere) seventeen months in the past,

but were ongoing obligations of the District to take

certain measures to reduce the risk of overdetentions.

The prospective injunctive relief is relevant to

knowledge and deliberate indifference during the trial

period.

Relevance only gets the plaintiffs so far. Relevant evidence can still be excluded if it is unduly prejudicial, or otherwise barred by the Federal Rules of Evidence. Rule 408 applies to this situation, so the Court must determine whether the Bynum settlement is being offered “either to prove or disprove the validity ... of a disputed claim or to impeach by a prior inconsistent statement or a contradiction,” or whether this evidence is being “admit[ted] for another purpose.” Fed.R.Evid. 408. Defendant primarily relies on Trebor Sportswear *88 Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 510 (2d Cir.1989) for the proposition that a party may not offer a settlement for a purpose too “closely intertwined” with the substance of the issues before the Court. In Trebor, a

party wished to use settlement negotiations to show that that statute of frauds had been satisfied and thus an enforceable contract existed. 865 F.2d at 510. “Because the question of whether the statute of frauds is satisfied is by its nature inextricably intertwined with the question of whether a contract is enforceable (and thus with the question of liability), the Trebor court held that it was not an abuse of discretion to exclude evidence of settlement communications.” Faulkner v. Arista Records LLC, 797 F.Supp.2d 299, 317 (S.D.N.Y.2011). The District claims that the
only matters at issue for trial are whether the District was deliberately indifferent to plaintiffs’ rights and had a custom and practice of overdetentions during the trial period. Given the narrow scope of the trial, there are simply no collateral issues that the Bynum settlement could be used to prove under FRE 408(b).... Even if the plaintiffs argue that the Bynum settlement can be admitted to show that the District knew about problems with overdetentions during that trial period, that issue is clearly intertwined with the central question of deliberate indifference.
Def.’s Mot in Limine. The District continues this line of argument in its Reply:
Barnes and Bynum both allege the same wrongs (strip searches and overdetentions) taking place at the same location (the D.C. Jail) by the same actor (the District) against virtually identical classes of people (prisoners during their respective time periods).... Bynum settled, and now the plaintiffs want to use it to show that the District was deliberately indifferent to strip searches and overdetentions during the Barnes period because it knew about Bynum and the terms of the Bynum settlement.
Def.’s Reply 2.
Again, the District misunderstands how the plaintiffs seek
9

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

to use the Bynum case. It would be impermissible for plaintiffs to use the Bynum settlement to show that since the District “was liable for a ... overdetention that happened on August 31, 2005,” this proves that “the exact thing against the exact same defendant ... occurred one day later.” Def.’s Reply 2–3 (emphasis omitted). Once more, plaintiffs are not using the Bynum settlement to show that an individual overdetention actually happened during the Bynum class period, or that any individual overdetention happened during the Barnes trial period—and to the extent plaintiffs might have, they are hereby barred from doing so. The plaintiffs are not arguing that prior overdetentions by the District show a propensity for future overdetentions. Cf. Dodson v. CBS Broadcasting Inc., 423 F.Supp.2d 331, 334 (S.D.N.Y.2006) (evidence of prior suits by EEOC to prove defendant’s propensity for sex discrimination irrelevant and prejudicial). The Bynum settlement shows notice of a problem, and a promise by DOC to take specific measures to alleviate the problem. But proving this does not win the case for plaintiffs if they cannot show that there were any overdetentions, or that the District did not take sufficient measures to address the potential problem. The defendant’s argument that the Bynum settlement goes too much to the “heart of the case,” and is not sufficiently “collateral,” does not prevail.

The District’s heavy reliance on Trebor—a Second Circuit case from 1989 that has only been cited by two district courts *89 in this Circuit5—is unavailing. Even within the Second Circuit, courts have questioned Trebor. In 2008, the Second Circuit allowed introduction of evidence of settlement communications in order to prove a defense of estoppel by acquiesce. PRL USA Holdings, Inc. v. U.S. Polo Assoc., Inc., 520 F.3d 109, 112 (2d Cir.2008). Most important for this case, the Second Circuit held that “[its] conclusion in Trebor that the district court had discretion to exclude the evidence of compromise negotiations did not mean that the district court in Trebor was required to exclude that evidence.” Id. at 116 (emphasis in original). Furthermore, a court in the Southern District of New York recently held that although it must consider the “public policy behind Rule 408 [in] promoting the compromise and settlement of disputes” this did “not outweigh the need” for evidence of settlement negotiations. Faulkner, 797 F.Supp.2d at 317.

5

One case, Watt v. All Clear Business Solutions, LLC,

840 F.Supp.2d 324, 326–27 (D.D.C.2012), dealt with a

completely different issue within Trebor; and another,

C & E Services, Inc. v. Ashland, 539 F.Supp.2d 316,

320–21 (D.D.C.2008) distinguished Trebor and

allowed plaintiffs to offer a settlement into evidence, with a limiting instruction to the jury.
Within this Circuit, Judge Facciola considered Trebor, PRL, and Rule 408 in C & E Services, Inc. v. Ashland Inc., 539 F.Supp.2d 316 (D.D.C.2008). His approach is instructive here. In this case, the General Services Administration conducted a post-award audit on defendant Ashland, and concluded that Ashland had overcharged government customers. The GSA referred the matter the U.S. Attorney’s Office, who began a False Claims Act investigation, which was ultimately resolved by a seven-figure settlement between Ashland and the government. The plaintiff in that action claimed that Ashland withheld this information from them “as part of a scheme by Ashland to place the defectively priced products into [plaintiff’s] GSA contract schedule.” Id. at 318. Plaintiff brought a breach of contract action, and sought to introduce the settlement between Ashland and the U.S. Attorney “as evidence of express misrepresentations, half truths, and deceptions as to the nature of the audit, its conclusions, and the Settlement itself-which they claim led to their injuries.” Id. at 321.
Judge Facciola began his discussion by recognizing that “as a magistrate judge who often presides over settlement discussions, I am constantly exposed to the concern of litigants that a settlement may be used by a third party to establish liability. The very policy underlying Rule 408 would be defeated if it did not operate to preclude the admissibility of settlement discussions in a case involving another party or another claim.” Id. at 320. With this in mind, he considered Rule 408’s “other purposes” exception, and Trebor’s suggestion that “when the claim settled and the claim asserted are inextricably intertwined, the exclusion that permits the use of settlement discussions for other purposes cannot apply.” Id. After considering PRL’s “refine[ment]” of Trebor, Judge Facciola allowed plaintiffs to introduce the settlement because “it is not being used to establish the validity of the underlying claims extinguished by the Settlement, but rather for the ‘other purpose’ of establishing Ashland’s misrepresentations upon which plaintiffs’s allegedly relied.” Id. at 321.
Following this approach, this Court will allow plaintiffs to mention the Bynum settlement because it is not being used to establish the validity of the underlying claims extinguished by the settlement— *90 whether the District had previously acted in deliberate indifference and overdetained inmates—but for the “other purpose” of
10

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
showing the District had notice of a potential problem, and undertook specific steps to reduce the risk of overdetentions. Following Judge Facciola’s approach, this Court will guard against the risk of prejudice or confusion by issuing a limiting instruction to the jury, and “insist[ing] that the evidence pertaining to the settlement be presented as briefly as possible and [hopefully] in the form of a stipulation between the parties.” Id.
The Court understands the defendant’s concerns about the public policy implications of allowing introduction of the Bynum settlement. It understands that “[t]he Rule [wa]s drafted to provide every incentive for compromise, and without such a broad rule of exclusion, litigants would be deterred from free-flowing settlement negotiations where multiple suits have been or might be brought.” 2 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 408.02 at 408–13 (9th ed. 2006). However, in support of the District’s position that allowing evidence of the Bynum settlement “would have a devastating effect on settlement negotiations, contrary to the purposes of FRE 408,” Def.’s Reply 3, the District cites a case that says no such thing. In Faulkner, the court stated that “[i]n applying the ‘another purpose’ exception to Rule 408, ‘the trial judge should weigh the need for such evidence against the potentiality of discouraging future settlement negotiations.’ ” 797 F.Supp.2d at 316 (quoting Starter Corp. v. Converse, Inc., 170 F.3d 286, 293 (2d Cir.1999)). In Faulkner, the court found that these factors favored the plaintiff, and admitted evidence of the settlement. Id. at 316–17.
When this Court weighs the need for evidence of the Bynum settlement against the potentiality of discouraging future settlement, it finds that the interests favor admitting the settlement. This Court itself found, at summary judgment, that the Bynum suit and settlement were relevant evidence of deliberate indifference. Barnes, 793 F.Supp.2d at 279. Allowing this settlement to come in, for this limited purpose, would not unduly discourage future settlement negotiations. A key interest in settlement, especially of class actions, is finality; parties could not be assured of finality if third parties could use the settlement, as an admission of guilt, in subsequent actions. Cf. William B. Rubenstein, Finality in Class Action Litigation: Lessons from Habeas, 82 N.Y.U. L. REV. 790, 820–25 (2007) (discussing finality as traditional interest in class action litigation). The finality offered by settlement is typically retrospective, and does not usually foreclose liability for future misdeeds. A defendant should not be able use a settlement as a shield if it continues to

engage in the same unlawful conduct, and new plaintiffs would need to look at the history of the defendant’s knowledge and conduct to make their case. In fact, if Rule 408 operated to curtail the ability of plaintiffs to bring new suits if the defendant continues to injure them in the same way, then this could discourage plaintiffs from settling. In cases where notice and past practice are key elements, the District cannot simply ask everyone to ignore the prospective obligations it undertook as part of the Bynum settlement.
With respect to the Bynum settlement, the Court finds that the fact that a suit was filed, and that the District undertook prospective injunctive obligations, are relevant to the issue of deliberate indifference. Rule 408 applies, but this limited use of the Bynum settlement falls under the “other purposes” exception of 408(b). To mitigate any possible prejudice, the Court *91 will issue a limiting instruction to the jury, and asks the parties to propose a stipulated jury instruction by the final pretrial conference on Monday, February 25, 2013. The Court also instructs the parties to attempt to introduce this evidence by stipulation, so it may be presented as briefly as possible. The plaintiffs are prohibited from introducing the Bynum settlement for any reasons other than those described above, including using the Bynum settlement to show that the District had previously overdetained inmates in deliberate indifference of their constitutional rights during the Bynum class period.
B. Motion to Exclude the Testimony of the Individual Class Members [8] Plaintiffs have indicated that they expect to call up to five class members to testify at the liability trial. The District argues that “[b]ecause this testimony would be irrelevant to the issues at hand, time-consuming, confusing, duplicative, and prejudicial, the District requests that it be excluded.” Def.’s Mot. in Limine 9. The plaintiffs intend to call two witnesses—Judith Jameson and Razina Jones—who were allegedly overdetained during the Barnes class period, but prior to the trial period currently in dispute. The plaintiffs also propose to have up to three class members, who were allegedly overdetained during the trial period, testify. See Ex. 1 to Def.’s Mot. in Limine 1–3, 17–18. These witnesses will testify “about their Commitment Date, their last court date, where they went after last court appearance ..., how they were processed back into the DC Jail/CTF, how and when they were ultimately released, and their Release Date.” Id. at 17–18. The plaintiffs argue this “testimony is relevant to the jury’s understanding of
11

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
the release process from the perspective of a person who has been overdetained.” Pls.’ Opp’n 15.
The District avers that testimony from class members is irrelevant to the issue of “whether the District was deliberately indifferent to plaintiffs’ rights through a custom and practice of overdetentions during the trial period.” Def.’s Mot. in Limine 10. The District argues that none of the class members’ proposed narratives relates to the factors relevant to deliberate indifference, which include “ ‘the delays associated with necessary administrative procedures, the total number of persons overdetained during the period, the rate of overdetentions given the total number of releases processed and the duration of individual overdetentions.’ ” Id. (quoting Barnes, 793 F.Supp.2d at 277). The District also argues that focusing on the individual experiences of class members may be misleading to a jury, suggesting that the length of their overdetentions or experiences may be typical. The District also argues that individual testimony is a waste of time and duplicative, and that the sympathetic narratives by class members may prove prejudicial to the District. Id. at 12–13.
The plaintiffs respond that the testimony of class members will not cause undue delay, as they expect each witness will only testify for 15–20 minutes on direct examination. Pls.’ Opp’n 15. They claim that class member testimony is not cumulative or duplicative; while Dr. Kriegler will testify about his opinions on the total number of overdetentions, and the length of those overdetentions, “[h]e will not be able to offer testimony from the perspective of an inmate who was actually released after midnight on the day he or she was entitled to release.” Id. at 17. “By offering testimony of the process of commitment, appearing for court, and release from three different class members, the jury will obtain a complete picture of the process from the perspective of a class member.” Id.
*92 The Court agrees that there is value in having representative class members explain the process by which they were overdetained. The District claims that the testimony of individual class members only proves that five people were overdetained over a 14–month period, and would be unnecessary in light of plaintiffs’ proffered expert testimony. Def.’s Mot. in Limine 12–13. Unless the testimony is inadmissible under the Rules, the District cannot dictate the plaintiffs’ trial strategy, or how they should present their evidence. Using individual stories in conjunction with statistical analysis is one way to present the facts. Five witnesses, briefly explaining

their first-hand experiences, would not waste the Court’s time. Cf. CHRISTOPHER MUELLER & LAIRD KIRKPATRICK, 1 FEDERAL EVIDENCE, § 4:15 (3d ed. 2012) (“Not all evidence that is duplicative is therefore cumulative, and evidence should not be excluded merely because it overlaps with other evidence.... The corroborative force of overlapping testimony can be important in persuading juries, and multiple witnesses may be more persuasive because they reinforce each other and bring to bear different perspectives or experiences[.]”).
The testimony of Judith Jameson and Razina Jones—who were overdetained prior to the trial period, but during the Barnes class period—may be relevant to show a pattern and practice of overdetentions, that things did not change at DOC for the people going through the process. This testimony is only relevant if the three class members from the trial period testify; if the plaintiffs cannot secure class witnesses from the trial period to testify, the testimony of Jameson and Jones will be excluded as irrelevant.
The District raises concerns about “sympathetic narratives,” Def.’s Mot. in Limine 12, that may distract the jury or prejudice the District. The plaintiffs are permitted to put a “human face” on the harms they allege, as long as the testimony is not inflammatory, or extend beyond matters relevant to the District’s liability for overdetentions. Each witness must limit its testimony to their personal experiences being overdetained, and the process they went through; they are not permitted to discuss strip searches—for the reasons discussed infra Part IV.E—or “injury” testimony that would be primarily relevant to the damages stage. If the plaintiffs are not willing to limit their witnesses’ testimony to these matters, the Court will not permit them to testify, as the probative value would be outweighed by its potential for undue prejudice.
The Court shares the District’s concern with the fact that the plaintiffs have yet to name three of their class member witnesses. The Court understands that it is difficult to locate suitable witnesses—especially when, by definition, all potential witnesses have been “in and out of the system.” But the Court does not agree that the District would suffer little prejudice by plaintiffs providing short notice of who will testify. Cf. Elion v. Jackson, 544 F.Supp.2d 1, 4–6 (D.D.C.2008) (discussing standards for considering whether to exclude witnesses not previously named in pretrial disclosures). The District has a right to investigate whether the class witnesses are reasonably representative of the class, or whether they are “outliers”
12

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
whose atypical experiences would confuse the jury, prejudice the District, and diminish the probative value of their testimony. To this end, the Court will order plaintiffs to name their class witnesses within 10 days of this date. Failure to do so will prevent the plaintiffs from calling any class witnesses, including that of Judith Jameson and Razina Jones, whose testimony would become irrelevant without a comparator witness from the trial period.

*93 C. Motion to Exclude Expert Testimony or Evidence from Sean Day The District asks the Court to preclude the plaintiffs from introducing expert testimony or evidence from Sean Day, and in turn exclude or “severely circumscribe” Dr. Kriegler’s reports that were based on data provided by Mr. Day. Def.’s Mot. in Limine 13, 20.6 The District claims that Mr. Day “cannot qualify as an expert, and his testimony would be unfairly prejudicial, giving the jury an inflated idea of how many overdetentions occurred here.” Id. at 13. The District argues that Mr. Day’s expert testimony is neither “relevant” or “reliable,” and thus must be excluded. Id. at 14 (quoting United States v. H & R Block, Inc., 831 F.Supp.2d 27, 30 (D.D.C.2011)).

6

The District gives this reference to, a fortiori, excluding

the expert testimony of Dr. Kriegler one sentence

within a seven-page argument. Def.’s Mot. in Limine

20 (“Moreover, because Dr. Kriegler’s proffered

testimony and evidence rests entirely on the ‘analysis’

provided by Mr. Day, ... it, too must be excluded or

severely circumscribed.”). This deserves more

attention, as excluding both Mr. Day and Dr. Kriegler’s

expert testimony severely undermines plaintiffs’ ability

to present its case. Just how plaintiffs’ Motion in

Limine was the functional equivalent of a dispositive

motion, this Motion in Limine from the District

essentially asks the Court to grant summary judgment

to the District.

Mr. Day is a “lawyer licensed in state and federal courts in Maryland (1995) and the District of Columbia (1996), with more than 10 years experience in criminal defense and § 1983 litigation.” Day Decl. ¶ 1, March 18, 2010, ECF No. 101–14 (“March 2010 Day Decl.”). He bases his statements about reviewing inmate jackets upon his “education, training, experience, expertise, including prior experience in reviewing Dept. of Corrections case jackets, and [his] review of jackets and data in this case.” Id. ¶ 2. Mr. Day previously assisted “with the review of class member claims ... in [Bynum ], which involved reviewing

approximately 500 DOC jackets to determine overdetentions.... This was a particularly involved process because [he] reviewed all bookings for each person during the class period, not just one booking period per person.” Id. ¶ 3. Mr. Day’s works with plaintiffs’ statistical expert Dr. Kriegler to generate expert reports on the total number of overdetentions occurring during particular periods. Specifically, Mr. Day cross-references potential overdetentions generated from the electronically stored JACCS data with physical inmate jackets. Mr. Day explains the process in more detail:
A potential over-detention is a release that has been tagged (electronically through JACCS data) using certain criteria developed by the parties. Each party then needs to classify the potential over-detentions as over-detained or on-time (in the Plaintiffs’ terminology, or as Appropriate, Late, Erroneous, or Other in the District’s case). To do this, each side must conduct manual examinations of the data in the jackets to make its classifications. Neither side is able to make a classification for a booking with certainty solely by reference to JACCS data; information in the person’s DOC jacket is also needed. So, the parties’ practice in identifying persons held late (whatever the criteria is) is to first run computer queries in the JACCS data to identify potential overdetentions, and then to examine the person’s DOC jacket for further observations about the release.
Suppl. Report of Sean Day 2 n. 2, June 11, 2012, ECF No. 360–2. Mr. Day reviews the individual, physical inmate jackets to determine whether a potential overdetention flagged by the database query meets *94 the class definition of an overdetention. See id.
[9] [10] Federal Rule of Evidence 702, which governs testimony by expert witnesses, provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in
13

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
the firm of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Expert testimony must be “both relevant and reliable.” H & R Block, 831 F.Supp.2d at 30. “The burden is on the proponent of the testimony to show by a preponderance of the evidence that the proffered expert witness is qualified, that his proposed testimony would be useful to the finder of fact, and that the testimony is reliable.” Sykes v. Napolitano, 634 F.Supp.2d 1, 5 (D.D.C.2009) (citing Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n. 9 (D.C.Cir.2001)). “This Court’s role is to act as a ‘gatekeep[er],’ excluding any expert testimony that is not sufficiently reliable or helpful to the jury.” Parsi v. Daioleslam, 852 F.Supp.2d 82, 85 (D.D.C.2012) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
Under the traditional Daubert standard, the court may consider the following factors to determine whether expert testimony is admissible under Rule 702:
(1) whether the expert’s technique or theory can be or has been tested;
(2) whether the expert’s technique or theory has been subject to peer review and publication;
(3) the known or potential rate of error of the technique or theory when applied;
(4) the existence and maintenance of standards and controls; and
(5) whether the technique or theory has been generally accepted in the scientific community.
Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786. However, Courts frequently encounter situations where these Daubert factors do not readily apply. The Supreme Court has stated that Daubert itself “made clear that its list of factors was meant to be helpful, not definitive.” Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “In matters where [the Daubert ] factors do not apply, reliability concerns may focus on personal knowledge or experience. The gatekeeping inquiry is ‘flexible’ and the ‘law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’ ” Groobert, 219 F.Supp.2d at 9 (quoting Kumho, 526 U.S. at 141–42, 119 S.Ct. 1167). Even when applying this ‘flexible’ standard, the Court must still ensure that the expert testimony is relevant and reliable. Id.
[11] The District’s first objection is that Mr. Day’s proffered testimony is irrelevant because it “relates to matters of common sense that a jury can decide for itself.” Def.’s Mot. in Limine 15 (quoting Keys v. WMATA, 577 F.Supp.2d 283, 285 (D.D.C.2008) (internal quotation marks omitted)). The District continues:
*95 Here, Mr. Day’s testimony is irrelevant, as the determination of liability for overdetention is a legal question, ... and the facts underlying any given inmate’s release can be accurately and intelligibly described to the jury, who will be just as capable as Mr. Day (or anyone else) of comprehending the primary facts and drawing the correct conclusion as to whether an overdetention occurred.
Id. at 16. Here, the District seems to suggest that the jury is perfectly capable of running database queries against JACCS data to identify potential overdetentions, and then know how to read an individual inmates’ file to determine whether that inmate was overdetained per the class definition, and then repeat this process hundreds of times over.7 Certainly, a person with experience and training on how to read inmate jackets—such as Ms. Myrick, or perhaps Mr. Day—could accomplish this task. Perhaps if the jury were trained as Legal Instrument Examiners, they could do all the work by themselves. That would be an absurd result, and it also raises the question: If the jury is perfectly capable of doing what Mr. Day did on its own, then why are the District’s own overdetention numbers relevant? With sufficient training, couldn’t the jury figure out for itself how to generate discrepancy reports from the JACCS data?
14

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)

7

Even if this task is limited to just cross-referencing the

list of potential overdetentions with physical inmate

jackets to determine actual overdetentions, this still

sounds like a daunting and complicated task.

Next, the District argues that Mr. Day’s testimony would be unfairly prejudicial, confusing, and misleading. The District worries that “the jury could be misled into the belief that all the overdetentions ‘objectively’ determined by the Mr. Day were the fault of the District.” Def.’s Mot. in Limine 17. The District claims that “Mr. Day does not view any reason for delay as legitimate or justified, ascribing all overdetentions to the District, including instance where the District received paperwork late from a third-party, or where a federal agency miscalculated an inmate’s sentence.” Id. (emphasis in original). In other words, the District thinks “Mr. Day’s ‘jacket analysis’ is [ ] impermissibly overbroad, putting the blame on the District for numerous overdetentions caused by the actions of third parties.” Id. at 18.
Mr. Day’s analysis is not undermined, or unduly prejudicial, because he does not exclude potential overdetentions that the District wants to see excluded—the same way that the District’s discrepancy reports are not inadmissible simply because they exclude potential overdetentions the plaintiffs want to see included. Mr. Day cannot be faulted for applying the class definition when doing his jacket analysis. The certified class in Barnes covers:
Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
Barnes v. District of Columbia, 242 F.R.D. 113, 121 (D.D.C.2007). The class definition does not exclude cases where the late release was the “fault” of some third party.
Whether the District is at “fault” for certain types of overdetentions is open to some debate, and the plaintiffs are entitled to provide a report covering all the

overdetentions for which they think the District is liable, and take a different position on *96 whether the District is liable for certain late releases. The District has previously taken positions that it was not “at fault” for certain types of late releases, only to have the Court disagree. Most significantly, the District argued that it was not liable for overdetentions caused by the “10 p.m. cut off rule,” but the Court decided that “the DOC’s enforcement of the District’s 10 p.m. cut off rule violated the due process rights of class members who were overdetained, during all parts of the class period, because of that rule.” Barnes, 793 F.Supp.2d at 278.
If the District has an issue with how Mr. Day classified certain late releases, it may address this on cross-examination. Disqualification of Mr. Day—and likely, by extension, Dr. Kriegler—is not warranted. See, e.g., Harris v. Koenig, 815 F.Supp.2d 6, 10 (D.D.C.2011) (Expert’s “testimony will unquestionably ‘assist the trier of fact,’.... Whether or not it is based on ‘unreasonable assumptions’ will be determined at trial after full cross-examination. Defendant’s objections go to the weight, not the admissibility of his Report.”); S.E.C. v. Johnson, 525 F.Supp.2d 70, 76 (D.D.C.2007) (“It is for the jury, not the Court, to determine whether [expert’s] opinions are suspect because facts upon which he relied were shown to be inaccurate or unproven.”); cf. Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed.Cir.2003) (“When, as here, the parties’ experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”).
Finally, the District argues that Mr. Day’s methodology is inadmissibly unreliable, and does not withstand scrutiny. Def.’s Mot. in Limine 19 (citing Groobert, 219 F.Supp.2d at 9 (expert testimony is unreliable “when an expert chooses to utilize her own unique methodology rather than the proper analysis which is well-known and respected”); id. at 8 (“General acceptance in the community is an important factor in evaluating an expert’s methodology [.]”)). The District objects to the sui generis nature of Mr. Day’s analysis, arguing that it is unreliable because “there is no indication that anyone else has ever used Mr. Day’s methodology before.” Def.’s Mot. in Limine 19; but see McReynolds v. Sodexho Marriott Services, Inc., 349 F.Supp.2d 30, 45 (D.D.C.2004) (question is not whether other courts have admitted an expert’s testimony in the past, but whether his testimony in the instant case is sufficiently reliable and relevant to warrant admission); Dyson v. Winfield, 113 F.Supp.2d 44, 48–49 (D.D.C.2000) (expert’s failure to
15

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
publish and subject conclusions to peer review not reason to find expert’s methodology unreliable, when there was no reason to publish study because of lack of interest in subject matter).
The fact that the District could not find a reported decision certifying an expert who provides testimony about whether “an overdetention occurred,” id., suggests that it is inappropriate to use the more rigid Daubert framework to determine whether Mr. Day’s methods are reliable. As explained in Groobert:
The defendant fails to recognize, however, that the standard under Federal Rule of Evidence 702 is a liberal and “flexible” one, and that personal experience can be a reliable and valid basis for expert testimony. Kumho Tire Co., 526 U.S. at 149, 119 S.Ct. 1167. This is particularly true with non-scientific testimony, where the Daubert factors may not apply because the issue is “highly particular and has not attracted scientific scrutiny.” Ambrosini [v. Labarraque, 101 F.3d 129, 134 (D.C.Cir.1996) ] (holding that courts must consider “other indicia of reliability” when the Daubert *97 factors offer limited assistance in evaluating an expert’s testimony); see also Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245–46 (5th Cir.2002) (holding that the lack of literature on injection-related infections of the joint did not undermine the expert’s hypothesis because the trial court could rely on first-hand observations and professional experience to assess the expert’s reliability). The Supreme Court has recognized that “the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho Tire Co., 526 U.S. at 151, 119 S.Ct. 1167.
219 F.Supp.2d at 7. The Court finds that Mr. Day’s testimony—being highly specialized and specific—is not amenable to analysis under the Daubert factors. It cannot evaluate Mr. Day’s “reliability based on such Daubert factors as ‘whether the expert’s technique or theory has been tested’ or ‘whether the technique or theory has been subject to peer review and publication’ because of apparent lack of information on the subject.” Id. (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). As in Groobert, this Court finds that “[p]ersonal experience is the proper method of assessing the reliability” of Mr. Day’s expert testimony. Id. (citing Kumho, 526 U.S. at 150, 119 S.Ct. 1167).
Mr. Day has years of experience—dating back to the Bynum litigation—reviewing DOC inmate jackets and

other data to determine whether an inmate was overdetained. March 2010 Day Decl. ¶¶ 2–4. He has personally reviewed hundreds of inmate jackets, and has educated himself on the DOC’s system of collecting inmate date. Id. Rule 702 “allows for experience such as employment in the field as well as experience in performing tests or studies.” Groobert, 219 F.Supp.2d at 7 (citing United States v. Ramsey, 165 F.3d 980, 984 (D.C.Cir.1999) (holding that an expert’s testimony regarding the plaintiff’s past criminal history satisfied Rule 702 because of his specialized knowledge, education, skill, and expertise as an agent of the Drug Enforcement Administration); United States v. Hankey, 203 F.3d 1160, 1169–70 (9th Cir.2000) (holding that the trial court properly admitted expert testimony concerning the plaintiff’s gang membership since the expert was a 21–year veteran of the police department who has devoted years to working with gangs)). Given the hyper-specific and narrow nature of Mr. Day’s expertise in analyzing DOC data, his almost ten years of professional experience reviewing hundreds of inmate files allows him to qualify as an expert through knowledge, skill, experience, training or education. See Fed.R.Evid. 702.
Several cases have found “expert testimony unreliable when an expert choses to utilize her own unique methodology rather than the proper analysis which is well-known and respected.” Groobert, 219 F.Supp.2d at 9 (citing Kumho, 526 U.S. at 158, 119 S.Ct. 1167 (stating that experience-based expert testimony was unreliable because there was no indication that others in the industry used the expert’s two-factor test); Meister, 267 F.3d at 1131 (holding that an expert lacked reliability when “no reasonable scientist would rely on this methodology in the face of voluminous epidemiological evidence to the contrary”); Raynor v. Merrell Pharm. Inc., 104 F.3d 1371, 1375 (D.C.Cir.1997) (rejecting expert testimony because an overwhelming body of evidence utilizing a “sound” methodology pointed in the opposite direction)).
In this case, there is no “well-known and respected” “proper analysis” when it *98 comes to determining whether an inmate was overdetained. General acceptance in the community can be an important factor, but it is only relevant when there is a “community” to accept that methodology. Basically, it comes down to Mr. Day and Dr. Kriegler’s expert reports versus the District’s discrepancy reports. The District has not shown that Mr. Day’s methodology is persistently flawed, or that there is “an analytical gap between the data and the opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). At best, the
16

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
District has offered that it would have—and did in its discrepancy reports—not count certain late releases it did not feel were the “fault” of the District. See Def.’s Mot. in Limine 17–18. Simply pointing to a possible alternative methodology does not establish that Mr. Day’s methodology was unreliable. See Capitol Justice LLC v. Wachovia Bank, N.A., 706 F.Supp.2d 34, 41–42 (D.D.C.2009) (Lamberth, C.J.) (noting that expert could have used alternative method of calculating damages does not render testimony unreliable).
The District’s problems with Mr. Day’s methodology largely go to the weight of the evidence, not its admissibility, and can be addressed on cross-examination. See, e.g., Ambrosini, 101 F.3d at 141 (“[B]y attempting to evaluate the credibility of opposing experts and the persuasiveness of competing studies, the district court conflated the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a factfinder.”); Groobert, 219 F.Supp.2d at 9 (“The only difference between [the defendant’s expert’s] evaluation and [the plaintiff’s expert’s] analysis is that [the defendant’s expert’s] analysis focuses on past income, which goes to the weight of the evidence rather than its admissibility.”); Voilas v. Gen. Motors Corp., 73 F.Supp.2d 452, 462 (D.N.J.1999) (holding that an expert’s failure to evaluate all available options “neither renders his methodology unreliable nor his report inadmissible but, rather, goes to the weight of his testimony”).
The District should not be permitted to exclude Mr. Day’s testimony because it disagrees with how he defines “overdetention,” or because he is among the first to provide this type of expert testimony. Cf. Benedi v. McNeil—P.P.C., Inc., 66 F.3d 1378, 1385 (4th Cir.1995) (holding that expert testimony was reliable despite the lack of studies or tests because a “defendant should not be allowed to escape liability simply because ... there are, as yet, no epidemiological studies concerning [this specific subject area]”). Nor should the Court force the jury to review hundreds of inmate jackets to determine for themselves whether an inmate was overdetained. Mr. Day’s testimony and reports are relevant, not unduly prejudicial, and based on a reliable methodology. His experience reviewing DOC inmate data and making determinations about whether overdetentions have occurred qualifies him as an expert under Rule 702.
D. Motion to Exclude Evidence or Testimony from Karen Schneider

[12] The District asks the Court to preclude the plaintiffs from introducing evidence or testimony from Karen Schneider. Ms. Schneider prepared a report, dated May 2008, titled “Review of Paperflow Process between the Superior Court, the U.S. Marshals Service and the Department of Corrections,” (“Schneider Report”) commissioned by the District’s Criminal Justice Coordinating Council (“CJCC”), with the concurrence of the D.C. Superior Court, the U.S. Marshals Service, and the DOC. The purpose of the Schneider Report was to review the transfer *99 of court-generated paperwork among these agencies, and suggest ways to make this process more efficient, so as to avoid erroneous and late releases of inmates. Schneider Report 1, Pls.’ Ex. 406, ECF No. 221–8 (under seal); see also Pls.’ Opp’n 28–29. While the report “did not focus on the reasons why the late release of inmates at the DC Jail may occur, it was recognized that some late releases could occur due to problems related to the paperflow process at the Court.” Id. at 21–22.
First, the District objects to the Schneider Report and her testimony because they “are hearsay, and should be excluded on that ground alone, as they are offered as out-of-court statement for the truth of the assertions contained therein.” Defs.’ Mot. in Limine 21 (citing Mahnke v. WMATA, 821 F.Supp.2d 125, 154 (D.D.C.2011) (expert reports and CVs are inadmissible hearsay)). The Schneider Report is not an expert report created in anticipation of litigation. The Schneider Report is either a party admission—and thus not hearsay—or falls under the public records exception to the hearsay rule. The District itself commissioned the study, and Ms. Schneider worked under the direction of the CJCC to focus “on how the process [of transferring court-generated paperwork] can become more efficient so as to avoid erroneous releases and potential overdetention of inmates.” Schneider Report 1. Since Ms. Schneider acted as the District’s agent in preparing the Report, the Report is a party admission, and therefore not hearsay.8 See Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 177 n. 1 (2d Cir.2003) (report produced at the direction of a party constitutes a party admission); Green v. Baca, 226 F.R.D. 624, 636 (C.D.Cal.2005) (outside counsel retained by County of Los Angeles to review Sheriff’s Department’s operations was County’s agent in preparing the reports; therefore the statements contained in the report were party admissions, not hearsay).

8

The District claims in its Reply that “the Schneider

report is not a party admission” as “Ms. Schneider was

17

Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
never authorized to speak for the district on the subject of potential overdetentions.” Def.’s Reply 8. Ms. Schneider—unless she was lying—was certainly authorized to offer findings and recommendations on the subject of “the transfer of court-generated paperwork among [D.C.] agencies focusing on how the process can come more efficient so as to avoid erroneous releases and potential overdetention of inmates.” Schneider Report 1 (emphasis added).
[13] The Court also agrees with the plaintiffs’ alternative ground for admitting the Schneider Report, that it “meets the public record exception of Fed.R.Evid. 803(8)(A)(iii).” Pls.’ Opp’n 31. The plaintiffs explain that the Report “was commissioned by the CJCC, an independent agency of the District of Columbia, with the concurrence of the DC Superior Court, as well as the Department of Corrections. It is a public record of a governmental agency, which sets forth factual findings resulting from an investigation made pursuant to authority granted by law, and as such, is admissible.” Id.; see Huthnance v. District of Columbia, 793 F.Supp.2d 183, 210 (D.D.C.2011) (Lamberth, C.J.) (hearsay rule does not bar admission of the District’s Office of Police Complaints’ report that made factual findings and recommendations with respect to wrongful arrests for disorderly conduct, as the report was a public record of a governmental agency within the meaning of Fed.R.Evid. 803(8)(C)).
The Supreme Court held, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161–65, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), that evaluative reports containing statements *100 of opinion are admissible under Rule 803(8)(C), as the focus of Rule 803(8)(C) analysis is trustworthiness, not whether the report should be deemed “fact” or “opinion.” There is no reason to question the trustworthiness of the Schneider Report; it provides a detailed explanation of its underlying methodology, Schneider Report 2–4, and the District gives the Court no reason to doubt her trustworthiness.
[14] Apart from its hearsay objection, the District claims that the Schneider Report is not relevant. The District avers that the purpose of the Schneider Report was “not to determined how many overdetentions occurred, or even why overdetentions occurred.” Def.’s Mot. in Limine 21. While Schneider indicated that her “study did not focus on the reasons why the late releases at the DC Jail may occur,” the Report noticed “that some late releases could occur due to problems related to the paperflow process,” and went on to try to “determine if there was a nexus

between the late release and the paperflow process,” Schneider Report 21–22.9 The Schneider Report’s relevance is evident from its first page:

9

The Schneider Report used the term “late release”

rather than “overdetention” in part because of worries

that labeling late releases due to the 10 p.m. cutoff rule

as overdetentions “may not be appropriate.” Schneider

Report 21 n. 35. This Court has already decided that it

is entirely appropriate to label late releases due to the

10 p.m. cut-off rule as “overdetentions.” Barnes, 793

F.Supp.2d at 282–83.

The District’s system to transfer commitment and release orders from the Court to the DOC for processing is a very lengthy, cumbersome, paper-driven process involving multiple agencies.... [I]t is not surprising that paperwork has gotten lost or has no been received at the Jail in a timely fashion. Unfortunately, lost or delayed paperwork potentially can lead to serious consequences—either the overdetention or the erroneous release of an inmate. Id. at 1 (emphasis added). The Report’s discussion of the District’s paperflow process, and how it could result in the overdetention of inmates in D.C. Jails, is clearly relevant to the issue of whether the District had a pattern and practice of overdetaining inmates. Granted, it does not offer a concrete total number of overdetentions, but that is not the only issue remaining. See Barnes, 793 F.Supp.2d at 277, 284 (also relevant, inter alia, are “the delays associated with necessary administrative procedures,” and whether the District was “on notice that absent significant intervention on its part, a pattern of unconstitutional behavior would certainly continue at the DOC”). The Schneider Report provides a “piece of the puzzle” to explain whether the District is liable for overdetentions during the Trial Period. Finally, the District states that “there are numerous indications that [Ms. Schneider] studied and reported on events, documents, and procedures that occurred outside the Trial Period.” Def.’s Mot. in Limine 21. Therefore, the District argues that portions of the Schneider Report contains irrelevant material, as the “Court has determined that only the District’s liability during the Trial Period is to be determined at the upcoming trial.” Id. at 22. Furthermore, the Report would be confusing to the jury, as the District claims that “[i]t will be exceedingly difficult, if not impossible, for the jury to only consider events and situations within the Trial Period, in light of Ms. Schneider’s reports and proffered testimony.” Id.
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Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
In response, the plaintiffs make the salient point that “the Schneider Report was issued in May 2008, at most 3 months after *101 the end of the Trial Period (February 25, 2008). Moreover, Ms. Schneider prepared and presented her preliminary report in December 2007, within the Trial Report, indicating that most of her analysis was completed by this time.” Pls.’ Opp’n 33–34. This point is well taken. The parties must remember that the “Trial Period” is an artificial construct—a period demarcated, ex post, by this Court based “on the varying availability of undisputed facts for different periods.” Mem. Op. & Order Denying Reconsideration 2, ECF No. 399. The Court cannot ask a contemporarily created report to fall neatly within the Trial Period. The fact that the Schneider Report may contain a few months of “irrelevant material” should not disqualify it. If the District thinks a brief limiting instruction is necessary to mitigate any possible prejudice or confusion, it should submit one by the Final Pretrial Conference. Since the Schneider Report provides relevant evidence, and is either a party admission or falls under the public record exception to the hearsay rule, the Court will deny the District’s motion in limine to exclude the Schneider Report or testimony from Ms. Schneider.
E. Motion to Preclude Mention of Facts Regarding Strip Searches [15] The District requests that the Court preclude any mention of strip searches during the trial on liability. The District argues that the strip search issue is not relevant to liability for overdetentions, and in any event would be overly prejudicial. Def.’s Mot. in Limine 22–23. While this Court has said that “the overdetention problem and the strip search problem are interrelated, one leading to another,” Barnes, 793 F.Supp.2d at 266, the District is correct that “it is overdetentions that lead to strip searches, not vice-versa,” Def.’s Mot. in Limine 22–23. While many overdetained inmates may have been strip searched, many inmates who were not overdetained have also been strip searched. Therefore, the relevance of this evidence under Federal Rules of Evidence 401 and 402 is weak. Furthermore, evidence about strip searches—an invasive, embarrassing practice—could be unduly inflammatory, distracting, and prejudicial. Per Federal Rule of Evidence 403, the Court will preclude the plaintiffs from mentioning facts regarding strip searches.
V. CONCLUSION

If insanity is doing the same thing over and over again and expecting different results, both parties should be concerned. The plaintiffs ask the Court, for the fifth time, to exclude the District’s discrepancy reports. For the fifth time, the Court refuses, and will let a jury decide the question of whose overdetention numbers are more credible. The District is embroiled in this litigation because—after settling Bynum and agreeing to spend $3 million of class funds to help solve the problem—it continued the same unconstitutional practices, and showed no urgency in enacting the kind of major, fundamental changes needed to address the overdetention problem.10 Now it asks the Court to forbid the plaintiffs from mentioning the District’s promises, made in the Bynum settlement, to take specific actions to prevent future overdetentions—such as developing an Inmate Processing Center. With an appropriate limiting instruction, the plaintiffs have a right to offer the injunctive provisions of the Bynum settlement as *102 proof of notice and deliberate indifference. Understanding the possible prejudicial effect of introducing the Bynum settlement, the Court asks the parties to consider introducing the relevant provisions via stipulation, and will require the plaintiffs’ discussion of the settlement to be brief and focused.

10

The Court has found, as a matter of law, this was true

for at least the first sixteen months of the Barnes class

period. 793 F.Supp.2d at 279–80. The District now has

a chance to prove that it had made enough progress to

preclude liability during the Trial Period.

The Court will allow plaintiffs to introduce testimony from up to three class members who were overdetained during the trial period (and two witnesses who were overdetained during the first sixteen months of the class period) so long as: (1) the plaintiffs identify these witnesses within 10 days of this days of this date, and these witnesses should be reasonably representative of the class—offering outliers or extreme cases could lead to preclusion; (2) the witnesses keep their testimony as brief as possible, and only focus on matters relevant to the liability phase—such as the process they went through that led to their overdetainment; the witnesses may not discuss strip searches, and should not offer testimony that is primarily related to individual damages; and (3) if the plaintiffs fail to name Trial Period witnesses by the deadline, they may not call the two witnesses who were detained prior to the beginning of the Trial Period.
The Court will allow the expert testimony and reports of
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Barnes v. District of Columbia, 924 F.Supp.2d 74 (2013)
Sean Day. Mr. Day offers testimony on a very narrow, specific issue—how to determine overdetentions from DOC records—so the lack of peer review and acceptance in the community of his methodology should not be held against him. His kind of expert testimony is virtually sui generis, but he has shown enough professional experience examining DOC records to demonstrate particular expertise in the field. The District objects to how Mr. Day defines an overdetention, but Mr. Day cannot be faulted for applying the class definition. Essentially, the District’s complaints about Mr. Day’s testimony go to its weight, not its admissibility, and the District will have an opportunity to cross-examine plaintiffs’ experts thoroughly at trial.
The Schneider Report examining the paperflow process in the D.C. criminal justice system is clearly relevant to notice and deliberate indifference. It discusses the systematic and bureaucratic problems that can lead to erroneous and late releases. As a document created by an agent of the District and at the direction of the defendant, the Report is a party admission and not hearsay. Alternatively, the report falls under the public records exception to the hearsay rule. The Report is not fatally prejudicial because it might cover a few months’ worth of

events that fell outside of the Trial Period. The idea of a “Trial Period” was created ex post by this Court, in part because of the varying availability of evidence for differing periods. The District cannot expect a contemporaneous document to fall neatly within the Trial Period, and any concerns that linger can be dealt with by a limiting instruction to the jury.
The plaintiffs will not be allowed to mention strip searches during the overdetention liability trial. While the fact that an inmate was overdetained makes it more likely he was strip searched, the fact that an inmate was strip searched does not make it more likely that he was overdetained. Whatever probative value mentioning strip searches would have is outweighed by the potential for undue prejudice and confusion. The topic of strip searches is likely to evoke strong reactions in a jury, and the Court need not accept the risk of such emotional reactions when evidence of strip searches proves so little about liability for overdetentions.
*103 A separate order consistent with this memorandum opinion shall issue this date.

20

 
 Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

924 F.Supp.2d 103 United States District Court,
District of Columbia.
Carl A. BARNES, et al., Plaintiffs, v.
The DISTRICT OF COLUMBIA, Defendant.
Civil No. 06–315 (RCL). | Feb. 19, 2013.
Synopsis Background: Inmates at local jails brought putative class action, under § 1983, against District of Columbia (D.C.), alleging that their over–detentions violated their Fourth, Fifth and Eighth Amendments and that strip searches conducted by jail staff violated Fourth and Fifth Amendments. Following certification of over–detention and strip search classes and close of liability discovery, and after granting in part parties’ summary judgment motions, 793 F.Supp.2d 260, District Court, Royce C. Lamberth, Chief Judge, upon consideration of parties’ proposals for proceedings with remaining issues, 278 F.R.D. 14, entered order that, inter alia, decertified special damages class. Inmates moved to make stay of decertification order retroactive to date of that order.
Holdings: The District Court, Royce C. Lamberth, Chief Judge, held that:
[1] staying decertification order was appropriate;
[2] ruling that all class members were entitled to equitable tolling via retroactive stay was inappropriate; and
[3] staying decertification order nunc pro tunc was warranted only to date of inmates’ request.
Motion granted in part and denied in part.
See also Barnes v. District of Columbia, 281 F.R.D. 53 (D.D.C.2012).
Attorneys and Law Firms
*104 William Charles Cole Claiborne, III, Ralph Douglas Robinson, Law Office of William Claiborne, III, Washington, DC, Barrett S. Litt, Kaye, MacLane, Bednarski & Litt, Stacey R. Brown, Litt, Estuar & Kitson,

LLP, Pasadena, CA, Paul J. Estuar, Litt, Estuar & Kitson, LLP, Los Angeles, CA, for Plaintiffs.
Ellen A. Efros, Grace Graham, Andrew J. Saindon, Keith David Parsons, Office of the Attorney General, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
(REGARDING CLASS NOTICE AND DECERTIFICATION OF SPECIAL DAMAGES
CLASS)
ROYCE C. LAMBERTH, Chief Judge.
I. BACKGROUND AND PROCEDURAL HISTORY As more fully explained in this Court’s earlier opinions, see, e.g., Barnes v. District of Columbia, 793 F.Supp.2d 260, 265 (D.D.C.2011), this case involves overdetentions and strip searches at the District’s jail facilities. This is the second of two virtually identical class actions filed against the District involving overdetentions and strip searches at its jails. The first one, Bynum v. District of Columbia, settled in January 2006 pursuant to an agreement designed to remedy the overdetention and strip search problems. 412 F.Supp.2d 73 (D.D.C.2006). The settlement required the District to set aside $3 million from the $12 million settlement fund to build a new inmate processing center. Id. at 83.
This Court was initially hopeful that the Bynum settlement would produce “significant policy changes in the operation of the Department of Corrections.” Id. at 85. However, the overdetention and strip search problems continued unabated for well over a year, precipitating the filing of the instant lawsuit. Barnes, 793 F.Supp.2d at 267–68. In February 2006, *105 Carl Barnes and several other named plaintiffs brought suit under 42 U.S.C. § 1983, alleging that the District was liable for overdetentions and strip searches that violated the Constitution. Pls.’ Second Am. Compl. ¶¶ 43, 44, ECF No. 12. The Court later certified the case as a class action. Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C.2007). Specifically, the Court certified the case as a hybrid class action, with plaintiffs’ claims for injunctive and declaratory relief certified under Rule 23(b)(2) of the
1

Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

Federal Rules of Civil Procedure, and plaintiffs’ claims for “monetary damages” certified under Rule 23(b)(3). Id. at 124. The Court defined both an “overdetention” and “strip search” class, id. at 120–21, and later ordered the case bifurcated into liability and damages phases. Order, Aug. 31, 2009, ECF No. 65.
After discovery on liability concluded, the parties filed cross-motions for summary judgment, and the Court ruled on those motions in June 2011. Barnes, 793 F.Supp.2d at 273–91. The Court held, inter alia, that the District was liable for overdetentions that occurred at its jail facilities from September 1, 2005, up to and including December 31, 2006. Id. at 285. The Court determined that genuine issues of material fact precluded a finding of summary judgment for plaintiffs or for the District as to the District’s liability for overdetentions that occurred from January 1, 2007, to February 25, 2008. Id. at 286. As to overdetentions that occurred from February 26, 2008, to the present, the Court found that the District was not liable as a matter of law. Id. However, as to any overdetentions caused by the DOC’s enforcement of the “10 p.m. cut-off rule,” the Court found the District liable during all parts of the class period. Id. at 283. As to the DOC’s policy of strip searching inmates entitled to release, the Court found that such class members’ Fourth Amendment rights were violated and that the District was liable. Id. at 291. Following the Court’s issuance of this ruling, and upon the request of the parties, the Court stayed the case for sixty days and referred it to a magistrate judge for mediation. Order, Aug. 9, 2011, ECF No. 311. Settlement discussions, however, failed.1

1

The Court has adopted the previous three paragraphs of

background information from its opinion in Barnes v.

District of Columbia, 278 F.R.D. 14, 16–17

(D.D.C.2011).

Thereafter, the parties submitted proposals for proceeding, discussing how the liability and damages trials should go forward. Barnes v. District of Columbia, 278 F.R.D. 14, 16 (D.D.C.2011). On December 7, 2011, the Court made several rulings pursuant to these proposals, including decertifying the plaintiffs’ claims for special damages:
As to “special” damages—such as damages for emotional distress, lost wages, or other types of compensatory damages other than general damages as defined above—the Court will decertify the class as to such individualized

damages. While the Court previously certified plaintiffs’ claims for “monetary damages” generally pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, Barnes, 242 F.R.D. at 120, plaintiffs’ clarification at this stage of their intention to seek special damages on a classwide basis necessitates this Court’s clarification that its class certification Order does not extend to such damages. Because not all members of the strip search and overdetention classes will have been impacted in the same way, because of differences in those experiences as well as differences in class members’ backgrounds and personal characteristics, questions affecting individual members of the class will necessarily *106 predominate over any questions of law or fact common to the class. See Fed.R.Civ.P. 23(b)(3). Therefore certifying such damages under Rule 23(b)(3) is inappropriate. Adjudication of claims for special damages must proceed on an individual basis.
Id. at 22. The Court officially “ORDERED that plaintiffs’ claims for special damages are decertified and must proceed on an individual basis.” Id. at 23. Almost a year after this Court ordered the plaintiffs’ special damages class decertified, the plaintiffs filed a Motion for Stay of the Decertification Order, to Defer Class Notice, and For Order that Defendant Bear the Cost of Notice When it is Approved, Dec. 4, 2012, ECF No. 400. The plaintiffs request that the stay of the decertification be made retroactive, nunc pro tunc, to December 7, 2011. Id. at 1. The District filed an opposition, agreeing to pay for notice, delay notice, and stay decertification; but strenuously opposing a nunc pro tunc stay of the decertification order. Def.’s Mem. & P. & A. in Partial Opp’n to Pls.’ Mot. (“Def.’s Partial Opp’n”), Dec. 12, 2012, ECF No. 405. Upon consideration of the plaintiffs’ motion, the defendant’s partial opposition, and the plaintiffs’ reply thereto, Pls.’ Reply, Dec. 28, 2012, ECF No. 406, the Court grants in part the plaintiffs’ motion. The Court will stay decertification of the special damages class nunc pro tunc to December 4, 2012—the date the plaintiffs first asked for a stay. The Court will order the defendant to bear the cost of such notice, and order that
2

Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

such notice be provided—at the District’s option—within thirty days after the Court’s Order resolving the liability trial, or within thirty days after the Court’s Order resolving all remaining class matters.
II. DISCUSSION This is a difficult decision. On one hand, the Court believes if plaintiffs had asked for a stay a year ago, the Court would have agreed. On the other hand, the plaintiffs provide no reason why this request comes a year after the decertification order. Approaching this issue, the Court considers its authority to issue stays nunc pro tunc, whether doing so would unduly prejudice the District or would “reward” the plaintiffs’ lawyers for their lack of diligence, the interests of the individual plaintiffs, and the Court’s interest in having the Barnes class action proceed in an orderly manner. After carefully considering these factors, the Court finds that a stay is appropriate, and that the Court should enter it nunc pro tunc on December 4, 2012, the date plaintiffs first requested a stay—not December 7, 2011, the date requested by plaintiffs.
[1] First, this Court believes it has the discretion to stay its special damages decertification order, pending resolution of the remaining class claims. The Court may have deferred decertification of the special damages class—or notice thereof—until after the trial on liability as an exercise of its broad power to manage class actions in an orderly and efficient manner. See, e.g., In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 141 (2d Cir.2001) (“There are a number of management tools available to a district court to address any individualized damages issues that might arise in a class action, including ... (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages....We emphasize that the issue of manageability of a proposed class action is always a matter of justifiable and serious concern for the trial court and peculiarly within its discretion.”) (internal quotation marks omitted).
Puffer v. Allstate Ins. Co., 614 F.Supp.2d 905 (N.D.Ill.2009) suggests that *107 it may be inappropriate for a court to stay the effect of its decertification order on the resumption of the statute of limitations. As discussed later, the Court agrees it should not issue a broad order retroactively tolling the statute of limitations for a wide class. However, Puffer does not prevent the Court from entering a stay of its decertification order to protect the orderly resolution of the remaining class issues. In Puffer, the court never certified a class at all, denying class certification outright. 614 F.Supp.3d 907. Therefore, there was no reason to stay the denial of certification, other

than to give individual plaintiffs the benefit of a longer statute of limitations.
[2] In this case, it makes sense to stay the decertification of the special damages class at least until a jury has decided the District’s liability for overdetentions. It is a waste of judicial resources to have plaintiffs individually argue that the District was liable for their overdetentions, when a jury may resolve that issue class-wide in a few months.2 While special damages claims are not amenable to class-wide resolution, each special damages claim will likely incorporate a legal determination—whether the District was liable for overdetentions that occurred at DOC facilities—that is amenable to class-wide resolution. The District agrees that a stay of decertification is appropriate, but argues that it should not be retroactive. See Def.’s Partial Opp’n (District “opposes plaintiffs’ request to stay, nunc pro tunc, the effect of [the decertification] decision to the date it issued. Any such stay should only be entered prospectively.”); Def.’s Proposed Order, Dec. 12, 2012, ECF No. 405–1 (asking Court to “ORDER[ ], that the Court’s decertification decision regarding the claims for special damages, as reflected in the Memorandum and Order (Trial Plan) of December 7, 2011 (Doc. No. 328), at 14, is hereby STAYED as of the date of this Order”) Exercising the Court’s considerable discretion in managing a class action, it finds that staying the special damages class decertification is appropriate. Later, the Court discusses whether such a stay should issue nunc pro tunc.

2

If there is no stay of decertification, and if notice of

decertification is issued immediately, the individual

plaintiffs may rush to court to preserve their claims

before the class-wide proceedings have had a chance to

conclude.

The Court will also order that notice be provided at the expense of the District. The District has already agreed to pay for notice. Def.’s Partial Opp’n 7 (“the District agrees that notice should be provided to the class members regarding the Court’s decertification decision, and conceded that it should pay the costs of such notice in light of the liability already imposed”). The District has also agreed to delay such notice until after the Court determines final liability in this matter. Def.’s Proposed Order 2 (asking Court to “ORDER[ ], that the parties shall meet and confer on the mechanics of the notice (the reasonable costs of which will be paid by the District), and present a joint proposed notice ... no later than thirty (30) days after the date of the Court’s Order determining final liability in this matter.”). Delaying notice until after the Court determines liability mitigates the risk that
3

Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

individual plaintiffs will file a flood of cases to preserve their rights. It is unclear from the District’s proposed order whether—in referring to “final liability in this matter”—the District refers to the upcoming liability trial alone, or the District’s total “liability,” including their financial “liability” for general damages.3 The plaintiffs *108 have argued that it would be more “economical” for the District to provide notice once, after all class matters have been resolved. However, since the District is paying for notice, the Court will allow it to decide when to provide notice, and asks the District to clarify what it means by “final liability in this matter.” Therefore, the Court will order that proposed notice be provided for this Court’s approval—at the District’s option—within thirty days after the Court’s Order resolving the issues related to the upcoming liability trial, or within thirty days after the Court’s Order resolving all remaining class matters.

3

The Court thinks, based on the District’s statements at

the last pretrial hearing, that the District wishes to send

out notice after the liability trial, not after the general

damages trial. Out of an abundance of caution, and

respect for the wishes of the District, the Court will ask

the District to clarify what it means in its proposed

order.

The parties have generally agreed: (1) the Court should stay the decertification order; (2) that the District should pay for the cost of notice; and (3) notice should be delayed at least until after the trial on liability is resolved. The only remaining question is whether the Court should make its stay of the decertification order retroactive.
[3] In the background is how the special damages class decertification, or a retroactive stay of that order, would affect the running of the statute of limitations for individual class members. “The filing of a class action tolls the statute of limitations for all members of the class[.]” Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002). The filing of the original Complaint tolled the statute of limitations for each class members’ claims as of February 26, 2006. Compl., ECF No. 1. The parties disagree over whether the statute of limitations began to run again when the Court ordered the special damages class decertified. The District argues:
“[D]ecertification has the same effect on the members of the class [as denying certification], so far as the running of the statute of limitations is concerned[.]” Culver, 277 F.3d at 915. Here, when the Court decertified plaintiffs’ claims for special damages, on December 7, 2011, the statute of limitations on those claims resumed running.

Def.’s Partial Opp’n 3. The plaintiffs claim that the District mistakenly relies on cases that “all involved either outright denial of class certification at the outset ... or complete decertification of the class,” and argues that “because the class has been and remains certified and the class claims have not been completely resolved, the statute of limitations is not running.” Pls.’ Reply 3–4.
Despite their position on the statute of limitations, the plaintiffs still think a retroactive stay is necessary, arguing:
[T]he correct interpretation is that, because there remains a certified class, the statute of limitations does not run until the class claims are resolved. Nonetheless, in order to avoid having to litigate this issue later, and to provide class members complete certainty, the Court should enter an order staying its partial decertification order, and should do so nunc pro tunc. If the Court agrees with Plaintiffs’ analysis of the statute of limitations, it is still advisable to eliminate any potential confusion on the issue by entering a stay order.
Id. at 8. It is not clear whether the statute of limitations began running after the partial decertification order. There is no clear guidance from this Circuit on this issue. The Court feels it is unnecessary to determine this issue at this time.
Class counsel worries that individual plaintiffs will rush to file individual damages *109 claims unless they can be assured that they will not encounter statute of limitations problems. The notice that the statute of limitations has begun to run typically creates the risk of a “rush.” The parties have already agreed to delay notice until, at least, after the liability trial. Individual plaintiffs, largely unaware that their special damages claims have been decertified for over a year, have yet to flood the Court with individual claims. The Court does not see how making the stay retroactive to December 2011 promotes the manageability of the class action before it.
[4] In effect, the plaintiffs ask the Court to either: (1) rule that the statute of limitations has not run on special damages claims, and issue a stay nunc pro tunc to protect that ruling; or (2) make a ruling applying equitable or retroactive tolling to all class members. It is not
4

Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

appropriate for this Court, through a retroactive stay of a decertification order, to “make a ruling that all ... class member are entitled to equitable tolling of the statute of limitations.” Puffer, 614 F.Supp.2d at 908; see also id. at 917 (tolling analysis is “fact-specific” and issuing “blanket tolling order” is inappropriate); Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088, 1106 & n. 6 (D.Kan.2012) (inappropriate to use broad tolling order because tolling should be addressed case-by-case if and when individual plaintiffs file suit); Radmanovich v. Combined Ins. Co. of Am., 271 F.Supp.2d 1075, 1079 (N.D.Ill.2003) (determinations of tolling must be made on case-by-case basis “if and when” individual files suit). The Court sees no need to make such an across-the-board ruling on whether the statute of limitations has been running on special damages claims, or whether equitable tolling applies to individual claims. Such determinations would require premature resolution of questions for which there is no clear guidance from the Circuit.
[5] [6] Additionally, the Court feels that making the stay retroactive to December 2011 would be an inappropriate use of its power to enter orders nunc pro tunc. As held by the D.C. Circuit, “A judgment entered nunc pro tunc is one given effect as of a date in the past. The principle underlying entry of a judgment or an order nunc pro tunc is that of fairness to the parties, seeking to rectify any injustice suffered by them on account of judicial delay.” Weil v. Markowitz, 829 F.2d 166, 174–75 (D.C.Cir.1987) (emphasis added). The Circuit continued:
As the Supreme Court has stated, a “nunc pro tunc order should be granted or refused, as justice may require, in view of the circumstances of the particular case.” Mitchell v. Overman, 103 U.S. (13 Otto) 62, 65, 26 L.Ed. 369 (1881). Entry nunc pro tunc thus must have a proper factual basis.
Id. There is no proper factual basis for an entry nunc pro tunc extending back to December 2011. Justice does not require the retroactive application of the stay, when class counsel provides no reason whatsoever why they could not have asked for the stay sooner. Class counsel has not made out a particularly strong case for “prejudice”—their case being that if the stay is not entered nunc pro tunc, each plaintiff may have to individually request equitable tolling, or argue that the statute of limitations did not start running again in December 2011. This does not rise to the level of “prejudice,” as several courts have found that such statute of limitations and tolling decisions should be made on a case-by-case basis. See, e.g., Puffer, 614 F.Supp.2d at 908; Harbor Freight Tools, 888 F.Supp.2d 1088, 1106 & n. 6; Radmanovich, 271 F.Supp.2d at 1079. The Court is not convinced that the District would *110 suffer considerable prejudice if the Court made the stay

retroactive, but this alone is not a reason to overlook class counsel’s unexcused failure to ask for a stay earlier.
Courts typically issue orders nunc pro tunc when the Court seeks to “rectify any injustice suffered by [the parties] on account of judicial delay.” Markowitz, 829 F.2d at 175 (emphasis added); see also Mitchell, 103 U.S. (13 Otto) at 64–65 (where delay has been caused either for a court’s convenience, or by intricacy of the questions involved, or by any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively: “[i]n such cases ... it is the duty of the court to see that the parties shall not suffer by the delay”). Here, most of the delay is not attributable to the Court. When no party asked the Court to stay the partial decertification order, the Court can hardly be blamed for not doing so. The plaintiffs do not argue that they could not have asked for a stay sooner because of some procedural hurdle outside of their control. The Court is willing, in the interest of total fairness to individual class members, to issue its stay nunc pro tunc to December 4, 2012—the date the plaintiffs first asked for a stay. The Court finds no proper factual basis for making its stay retroactive to December 7, 2011—the date the Court decertified the special damages class.
III. CONCLUSION AND ORDER Upon consideration of the plaintiffs’ Motion for Stay of Decertification Order, to Defer Class Notice, And for Order that Defendant Bear the Cost of Notice When it is Provided, Dec. 4, 2012, ECF No. 400, the defendant’s Partial Opposition to Plaintiffs’ Motion for Stay, Dec. 21, 2012, ECF No. 405, the plaintiffs’ Reply thereto, Dec. 28, 2012, ECF No. 406, the record herein, and for the reasons stated in this memorandum opinion and order, the Court hereby
ORDERS that plaintiffs’ motion for nunc pro tunc order staying the damages decertification order [400] is GRANTED IN PART AND DENIED IN PART; the Court further
ORDERS that the Court’s decertification decision regarding the claims for special damages, as reflected in the Memorandum and Order (Trial Plan) of December 7, 2011 (ECF No. 328) at 14, is hereby STAYED nunc pro tunc as of December 4, 2012; the Court further
ORDERS that plaintiffs’ motion to defer class notice and for defendant to bear the cost of notice [400] is GRANTED IN PART AND DENIED IN PART; the Court further
5

Barnes v. District of Columbia, 924 F.Supp.2d 103 (2013)

ORDERS that the plaintiffs shall draft a proposed notice that satisfies the purposes of Fed.R.Civ.P. 23(d)(1) and submit it to the District for review and comment; the Court further
ORDERS that the parties shall meet and confer on the mechanics of distribution of notice (the reasonable costs of which will be paid by the District), and present a joint notice and method(s) of publication to the Court for its approval; the Court further
ORDERS that the District, at its option, may present such notice to the Court either:
• No later than thirty (30) days from the date of the Court’s Order determining the District’s liability for

overdetentions for the period covering January 1, 2007, to February 25, 2008, with the District also undertaking the costs and burdens of sending separate notice, if necessary, after the subsequent trial on general damages and after any other remaining class issues are resolved; or
*111 • No later than thirty (30) days from the date of the Court’s Order resolving all class issues, including liability and general damages.
IT IS SO ORDERED.
	  

6

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

CARL A. BARNES, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA,

)

)

Defendant.

)

)

06-cv-315 (RCL)

MEMORANDUM OPINION*

Before the Court are three discovery motions: defendant’s Motion to Compel Discovery

Responses or Preclude Plaintiffs from Using Certain Evidence, May 22, 2012, ECF No. 351;

defendant’s Motion to Strike, Or, In the Alternative, For Extension of Time and Leave to

Designate Rebuttal Expert(s), June 29, 2012, ECF No. 365; and plaintiffs’ Non-Consent

Amended and Re-Stated Motion to Compel Production of the Release Discrepancy Database,

June 25, 2012, E CF No. 362. Upon consideration of the motions, the oppositions and replies

thereto, and the record herein, the Court will deny in part and grant in part defendant’s Motion to

Compel [351] and deny defendant’s Motion to Strike [365]. The Court will also deny

defendant’s Motion in the Alternative for Extension of Time and Leave to Designate Rebuttal

Expert(s) [365]. T he Court will reopen discovery for 28 days to allow the depositions of

plaintiffs’ expert witnesses, instead of the 74 days requested by the defendant. Furthermore, the

Court will grant in part and deny in part plaintiffs’ Motion to Compel [362].

I. BACKGROUND

This case concerns the District of Columbia Department of Corrections’ (“DOC”)

practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject ____________________
* Following defendant District of Columbia’s Motion to Clarify the Record, Sept. 27, 2012, ECF No. 394, the Court decided to make two non-material changes to clarify the factual record. See ECF No. 396. Those changes are reflected in footnote 11 (page 22 of the ECF version) and Part.III.E. (pp. 24–25).

to overdetentions and strip searches, filed a class action against the District of Columbia (“District”) over six years ago. Compl., Feb. 23, 2006, ECF No. 1. T his long-running case is virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity with its prior opinions, which set forth the background of this class-action litigation in greater detail. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260, 265 (D.D.C. 2011) (ECF No. 307) (discussing background of case up to summary judgment stage).1
In June 2011, the Court granted plaintiffs’ Motion for Summary Judgment as to the District of Columbia’s liability for any overdetentions at its jails, throughout the class period, caused by the DOC’s application of the so-called “10 p.m. cut-off” rule, and all overdetentions occurring from September 1, 2005 t o December 31, 2006. Id. at 286. The Court granted the District’s Motion for Summary Judgment as to overdetentions occurring from February 26, 2008 forward that were not caused by the DOC's enforcement of the 10 p.m . cut-off rule. Id. The Court denied both parties’ motions as to the District's liability for overdetentions that occurred from January 1, 2007 t o February 25, 2008 ( the “disputed” or “Trial Period”) that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. at 286 & n.18. The District’s liability for that subset of overdetentions remains undetermined pending trial.
Following these rulings, the Court ordered limited, additional discovery in December 2011. See Barnes v. District of Columbia, 278 F.R.D. 14, 18 (D.D.C. 2011) (ECF No. 328). The parties’ competing trial proposals each assumed the need for additional fact and expert discovery prior to trying the remaining liability issues, and the Court—responding to and agreeing with the
1 Considering some of the parties’ current motions—which frequently raise issues that could have been resolved by carefully reading the prior Orders of this Court—assuming familiarity might be a stretch. The following three paragraphs of this background section are taken, largely, from the Court’s description in Barnes v. District of Columbia, 281 F.R.D. 53, 53–54 (D.D.C. 2012).
2

District’s concerns—restricted that discovery “to such...as will assist the parties in determining how many overdetentions occurred during the disputed period.” Id. The Court made clear that it would not permit further discovery on “process” and related issues. Id. at 23. The Court ordered the parties to update their expert reports by February 10, 2012, and ordered that this additional discovery period would close on April 6, 2012. Id.
Between January 13, 2012 a nd March 6, 2012, the District served four sets of interrogatories and requests for production on plaintiffs, seeking information about plaintiffs’ contentions regarding the number of overdetentions during the Trial Period. Plaintiffs’ responses to two of those sets of interrogatories, as well as the scope of an upcoming deposition of plaintiffs’ statistical expert, were in dispute. These disputes were rooted in a disagreement as to the proper scope of discovery. T he District contended that the only overdetentions that are relevant to the upcoming liability trial are those not caused by the 10 p.m . cut-off rule. Consequently, the District believed that plaintiffs needed to determine the number of 10 p.m . cut-off rule overdetentions during the Trial Period so that those overdetentions could be excluded. Plaintiffs argued that the plain language of the Court’s December 2011 Order limited additional discovery to the number of overall overdetentions during the Trial Period, without specifying that this number had to exclude overdetentions caused by the 10 p.m . cut-off rule. See Barnes v. District of Columbia, 281 F .R.D. 53, 55 (D.D.C. 2012) (ECF No. 336) (summarizing parties’ discovery disputes).
On April 3, 2012, t he Court resolved these discovery disputes in a Memorandum Opinion.2 Barnes, 281 F .R.D. 53. The Court considered both parties’ positions “substantially justified,” id. at 56 n.2, but ultimately agreed “with the District that the purpose of the Court's
2 The Court will refer to this opinion and order as “April 3rd Discovery Opinion” herein. 3

December 2011 di scovery Order was to permit the parties to ascertain the number of disputed overdetentions during the Trial Period.” Id. at 55. To this end, the Court ordered the plaintiffs to answer the District’s Interrogatory 1 (seeking overall number of overdetentions during Trial Period) and Interrogatory 2 (seeking number of overdetentions during Trial Period caused by 10 p.m. cut-off rule). Id. The Court “recognize[d] that ordering a party to create a document that doesn’t exist or to perform analyses it hasn’t yet performed is somewhat unusual,” but decided:
In the circumstances of this case, where plaintiffs’ failure to perform the required analysis would almost certainly result in the exclusion of that key evidence prior to trial, and where that analysis can be performed comparatively easily using computerized data plaintiffs have in their possession, ordering plaintiffs to create the requested information is reasonable. Id. at 55–56. 3 To allow for the completion of this additional analysis, the Court extended discovery first until April 25, 2012 (Minute Order, Apr. 24, 2012) , then until June 11, 2012 (Order, Apr. 27, 2012, ECF No. 345), and ultimately until June 14, 2012 (Minute Order, June 12, 2012). T he plaintiffs filed two supplemental expert reports and one set of errata on J une 14, 2012. See Sealed Documents, June 14, 2012, ECF No. 360. On May 22, 2012, before the amended discovery deadlines had passed, the District filed a Motion to Compel interrogatory responses and preclude plaintiffs from introducing certain evidence. ECF No. 351. Upon receipt of the plaintiffs’ supplemental expert reports and errata, the District filed a Motion to Strike the expert reports. E CF No. 365. In the alternative, the District requested additional time to complete discovery and leave to designate rebuttal experts. Id. These motions are related to one another, and the Court considers them in turn. While creating the supplemental expert reports, the plaintiffs claim that their experts discovered that the District’s production was incomplete. The plaintiffs filed, on June 22, 2012,
3 This Opinion also denied parties’ motions to compel as to several other interrogatories and outlined the proper scope of the interrogatory of plaintiffs’ expert Dr. Krieger. Id. at 55–57.
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their Non-Consent Amended and Re-Stated Motion to Compel Production of the Release Discrepancy Database. ECF No. 362. This opinion also resolves this motion.
II. LEGAL STANDARD A. Motion to Compel Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party.” This right is subject to Rule 26(b)(2)(C), which limits discovery that is, inter alia, unreasonably duplicative, burdensome, or expensive. A party may submit to another party interrogatories that “relate to any matter that may be inquired into under Rule 26(b).” F.R.C.P. 33(a).
When a party fails to respond to a proper discovery request or interrogatory, the other party may—after first attempting to resolve the issue by conferring with the other party—file a motion to compel. F.R.C.P. 37(a)(1). Courts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350–52 (1978); Harris v. Koenig, 271 F.R.D. 356, 363 (D.D.C. 2010); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 529 –30 (D.D.C. 2006) (Lamberth, J.). An appellate court will review a district court’s decision whether to compel discovery for an abuse of discretion. See Libscomb v. Winter, 2009 WL 1153442, *1 (D.C. Cir Apr. 3, 2009) (affirming district court because “appellant has not shown the district court abused its discretion in denying his motion to compel discovery.”). Courts may, if appropriate, consider motions to compel filed after discovery has closed. See Lurie v. MidAtlantic Permanente Medical Group, P.C., 262 F.R.D. 29, 31 ( D.D.C. 2009) (Lamberth, C.J.) (“[C]ourts routinely consider motions related to discovery, even though they are filed outside the
5

discovery period.”). Interrogatories, as a part of the discovery process, help litigants prepare for trial by
narrowing the issues and determining what evidence they will need at trial. 8b CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. § 2162 (3d ed. 2012). Parties must answer interrogatories “fully” with “true, explicit, responsive, complete and candid” answers. Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007). “The party objecting to…discovery bears the burden of ‘show[ing] why discovery should not be permitted,’” Alexander v. F.B.I., 193 F.R.D. 1, 3 (D.D.C. 2000) (internal citations omitted), while the party seeking to compel discovery has the burden of proving that a discovery response is inadequate. Equal Rights Ctr., 246 F.R.D. at 32. C ourts treat evasive or incomplete answers to interrogatories as a f ailure to respond. F.R.C.P. 37(a)(4).
B. Motion to Strike Under Federal Rule of Civil Procedure 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See F.R.C.P 12(f); Judicial Watch, Inc. v. Dep’t of Commerce, 224 F.R.D. 261, 263 ( D.D.C. 2004). Under this Rule, “pleading” encompasses expert reports. See U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 474 F. Supp. 2d 75, 79 (D.D.C. 2007) (Lamberth, J.) (providing standard of review for motion to strike expert report, applying 12(f)). These motions are strongly disfavored, and the decision of whether to strike all or part of a pleading rests within the sound discretion of the Court. See Judicial Watch, 224 F .R.D. at 263 ( collecting authorities); 2-12 MOORE’S FEDERAL PRACTICE-CIVIL § 12.37 (2006). A “motion to strike is considered an exceptional remedy and is generally disfavored,” Larouche v. Dep’t of the Treasury, 2000 W L 805214 at *13, (D.D.C. Mar. 31, 2000) (citing MOORE’S at § 12.37), and the proponent of such a
6

motion must carry a “formidable burden.” Judicial Watch, 224 F.R.D. at 264.
Defendant seeks to strike supplemental and amended expert reports, so the legal
standards for filing and amending expert reports are relevant. Rule 26(A)(2)(d) states:
A party must [disclose expert testimony] at the time and in the sequence that the court orders. Absent a stipulation or court order, the disclosures must be made: at least 90 days before the date set for trial or for the case to be ready for trial; or if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party…, within 30 da ys after the other party’s disclosure.
F.R.C.P. 26(A)(2)(d) (original formatting omitted). The Rules further state:
A party who has made a disclosure under Rule 26(a)…must supplement or correct its disclosure or response: in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information had not otherwise been made known to the parties during the discovery process or in writing; or as ordered by the court.
F.R.C.P. 26(e) (original formatting omitted). Courts do not allow supplemental or amended
reports simply at the whim of a party; they are permitted: “(1) upon court order; (2) when the
party learns that the earlier information is inaccurate or incomplete; or (3) when answers to
discovery requests are inaccurate or incomplete.” Mineba Co., Ltd. v. Papst, 231 F .R.D. 3, 6
(D.D.C. 2005) (citing Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998)).
C. Extension of Time
The Rules provide that “[w]hen an act may or must be done within a specified time, the
court may, for good cause, extend the time: with or without motion or notice if the court acts, or
if a request is made, before the original time or its extension expires; or on motion made after the
time has expired if the party failed to act because of excusable neglect.” F .R.C.P. 6(b).
Specifically pertaining to scheduling orders, Federal Rule 16(b) and Local Rule 16.4 allow the
Court to modify the discovery deadlines of a scheduling order “upon a showing of good cause.”
Myrdal v. District of Columbia, 2007 W L 1655875, *2 ( D.D.C. June 7, 2012) (Lamberth, J.).
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Deciding whether to extend discovery is within the sound discretion of the trial court. See, e.g., U.S. v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir. 2001) (“[T]he trial court [has] wide latitude to receive evidence as it sees fit.”); Food Lion, Inc. v. United Food and Commercial Workers Int’l Union, 103 F . 3d 1007, 1012 ( D.C. Cir. 1997) (“Trial courts exercise considerable discretion in handling discovery matters[.]”). In deciding whether good cause exists under Rules 16(b) and 16.4 to amend a scheduling order, the Court primarily considers the diligence of the party in seeking discovery before the deadline. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 ( 9th Cir. 1992) (“Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment….If the party was not diligent, the inquiry should end.”); St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 2007 WL 1589496, *6 (D.D.C. June 1, 2007) (collecting cases, quoting Johnson).
D. Leave to Designate Rebuttal Experts Rule 26(A)(2)(d)(ii) allows a party to designate a rebuttal expert “within 30 days after the other party’s disclosure.” Rebuttal experts are used “solely to contradict or rebut evidence on the same subject matter identified by another party.” F.R.C.P. 26(A)(2)(d)(ii). There is no freestanding Rule that specifically addresses the designation and disclosure of rebuttal experts vis-à-vis supplemental or amended expert reports. Some Courts have held that, when a party had previously failed to designate a rebuttal expert, that party does not necessarily get another chance after a report is amended. See Hubbard v. Potter, 247 F.R.D. 27, 31 (D.D.C. 2008) (denying motion to strike supplemental expert report and denying leave to designate rebuttal experts). Other Courts, when faced with a report containing significant changes filed during or near trial, have gone as far as striking the entire supplemental report. See Minebea, 231 F.R.D. at 6 (striking supplemental expert reports submitted during trial).
8

Ultimately, granting leave is within the discretion of the Court. Rule 26(a)(2)(C) states
that “[expert witness] disclosures shall be made at the times and in the sequence directed by the
court.” From “the language of Rule 26(a)(2)(C), the Court has the authority to control the timing
and sequence in which expert designations are made” including whether a p arty can make a
designation of an expert for the purposes of rebuttal. Estate of Vaughn v. KIA Motors America,
Inc., 2006 WL 1806454, *2 (S.D. Miss. June 29, 2006).
III. DISCUSSION
A. Defendant’s Motion to Compel Answers to Interrogatories No. 1 and 2
The District’s current Motion to Compel relates to a previous Order of the Court
resolving several discovery motions. On April 3, 2012, t he Court ruled on two motions by the
defendant to compel discovery responses and a motion by the plaintiffs for a protective order.
Barnes, 281 F.R.D. 53. The District challenged plaintiffs’ responses to Interrogatories 1, 2, 5,
and 6. Id. at 55. As previously summarized by the Court:
Interrogatory No. 1 seeks, in short, the overall number of overdetentions during the Trial Period. Interrogatory No. 2 s eeks the number of the overdetentions during the Trial Period that plaintiffs contend were caused by the 10 p.m . cut-off rule. Interrogatory No. 5 seeks the number of overdetentions (the time period is not specified) in which an inmate was sent to the Medical Holding Unit before being overdetained. Interrogatory No. 6 seeks a breakdown (“for all periods at issue”) of the number of inmates who were overdetained for certain lengths of time—“less than 2 hours,” “2 or more hours but less than 4 hours,” and so forth.
Id. (citations omitted). This Court denied defendant’s motion to compel as to Interrogatories 5 and 6, id. at 56, but granted the motion4 as to Interrogatories 1 and 2. Id. at 55. To this end:
[T]he Court will order plaintiffs to revise their responses to Interrogatories Nos. 1
4 With limitations. This Court did not grant “the District's request in Interrogatory No. 1 for the overdetention figures to be broken down into “CRER” and “non-CRER” overdetentions.” 281 F.R.D. at 56. “CRER” stands for “Court Return Entitled to Release” and “indicates an inmate who left the DOC’s correctional facilities to attend a court hearing and who was entitled to be released upon his or her return to jail.” Id. at 56 n.1.
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and 2 by stating how many overdetentions they contend occurred during the Trial Period (excluding from that number the number of overdetentions that they contend were caused by the DOC’s enforcement of the 10 p.m. cut-off rule) and also by stating how many 10 p.m. cut-off rule overdetentions they contend occurred during the Trial Period. As requested by the District, plaintiffs must also explain in full in their responses how they arrived at these figures. The Court recognizes that ordering a p arty to create a document that doesn’t exist or to perform analyses it hasn’t yet performed is somewhat unusual….In the circumstances of this case, where plaintiffs’ failure to perform the required analysis would almost certainly result in the exclusion of that key evidence prior to trial, and where that analysis can be performed comparatively easily using computerized data plaintiffs have in their possession, ordering plaintiffs to create the requested information is reasonable. Id. at 55–56. In their present motion, the District claims—despite the Court’s April 3rd Order—
that it still has not received satisfactory responses to Interrogatories 1 and 2. Def.’s Mem. ISO
its Mot. to Compel 2–3, May 22, 2012, ECF No. 351.
The Court’s December 2011 Trial Plan opened a period of limited discovery to close on
April 6, 2012. Barnes, 278 F.R.D. at 18. After this Court issued its April 3rd Discovery Opinion,
the parties each moved to extend the discovery deadline to accommodate the discovery
compelled by the Order. See ECF docket entries 337, 338, 339, 343. On April 27, 2012 this
Court resolved those motions and set the deadline for extended discovery for June 11, 2012,
adding: “[T]he Court shall permit the District to depose both [plaintiffs’ experts] Dr. Kriegler
and Mr. Day, at its option. No further extensions of discovery will be permitted.” ECF No. 345.
On June 12, 2012 , the Court issued a Minute Order granting an additional extension of time,
ordering the plaintiffs to “produce the [expert] reports and all related discoverable material no
later than 12:00 AM on T hursday June 14, 2012.” O n June 14, 2012, the plaintiffs submitted
their supplemental expert reports per the Court’s Order. See ECF No. 360.
When granting defendant’s earlier motion to compel as to Interrogatories 1 and 2, t his
Court expected that the answers may come via supplemental expert reports. This Court carefully
considered the appropriateness of ordering plaintiffs to create new documents or perform new
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analyses, and ultimately decided that so ordering was “reasonable.” 281 F.R.D. at 55–56. The Court extended discovery so plaintiffs could respond to Interrogatories 1 and 2 with supplemental reports identifying the requested information and explaining their methodologies. The District may have misunderstood the Court’s April 3rd Discovery Opinion, because on May 22, 2012 it filed a renewed motion to compel. At that time, the plaintiffs had until June 11, 2012 to file reports answering the interrogatories. Therefore, the District’s May 22nd motion to compel was premature; the plaintiffs still had time to file their responses.
In any event, the plaintiffs timely filed expert reports aimed at clearly and fully answering Interrogatories 1 and 2. Supplemental Report of Sean R. Day, June 14, 2012, ECF No. 360-2; Third Supplemental Expert Report of Brian Kriegler, Ph.D., June 14, 2012, ECF No. 360-3. When these reports came in, the defendant filed a Motion to Strike; the Court declines to strike these reports, for the reasons discussed in Part III.C. infra. The defendant may dispute the accuracy and methodologies of the reports, and they are free to do via deposition. However, plaintiffs answered Interrogatories 1 and 2 i n the manner and time allowed by the Court. Therefore, the defendant’s Motion to Compel as to Interrogatories 1 and 2 is denied.
B. Defendant’s Motion to Compel Answer to Interrogatory No. 13 The District also seeks to compel plaintiffs to answer Interrogatory 13, which reads: Please identify each fact witness (by name, address at which the person can be served a deposition notice such as a home address, phone number, and social security number) you intend to call during the liability phase of the trial and also please state each fact you expect the witness to testify to. Def.’s Fourth Set of Interrogs. & Req. for Produc. of Docs. 5, Mar. 6, 2012, ECF No. 351-1. The plaintiffs responded: Plaintiffs have not yet had an opportunity to revise their trial strategy in response to the Discovery Revision Order [docket # 336] and so plaintiffs reserve the right to supplement its responses but at this point plaintiffs reserve the right to call all
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fact witnesses on the defendant’s responses to plaintiffs [sic] interrogatories. Plaintiffs will state (subjection [sic] to objections provided by the rules and other law) “each fact you expect the witness to testify to” when the District responds to plaintiffs’ interrogatory and tells plaintiffs what those facts are.
Pls.’ Resp. to Def.’s Fourth Set of Doc. Prodc. Req. 1, A pr. 25, 2012, ECF No. 351-2. T he
plaintiffs then listed two witnesses, Razina Jones and Judith Jamison, and indicated that these
witnesses “may be contacted through plaintiffs’ counsel.” Id. at 2.
As with the dispute over Interrogatories 1 and 2, the dispute over Interrogatory 13 relates
to another discovery ruling of the Court. When the District filed its Motion to Compel, the
plaintiffs had a similar motion pending. O n April 16, 2012, t he plaintiffs filed a Motion to
Compel Responses to Plaintiffs’ 2-10-12 Liability Interrogatories and Document Production
Requests to Defendant. ECF No. 341. In this motion, plaintiffs sought an answer to an
interrogatory virtually identical to the District’s Interrogatory No. 13. The plaintiffs submitted:
Please identify (by name, address at which the person can be served a deposition subpoena such as a home address, phone number, and social security number) each fact witness whom you intend to call at trial and also please state each fact you expect the witness to testify to.
See Pls.’ Mot. to Compel Resp. to its 2-10-12 Interrogs. 3. T o the plaintiffs’ interrogatory, the
District replied generally:
The District objects to the extent that this Interrogatory seeks to replace, expand, or preempt the deadlines set by the Federal Rules of Civil Procedure and the Orders of this Court. The District objects to the extent the information sought is unduly invasive of the privacy of witnesses who will willingly appear as current employees of the District, and affirmatively states that, where applicable, such witnesses may be deposed through arrangement with District counsel. T he District objects that the requested recitation of “each fact” to be attested to in evidence at trial in this class action involving thousands of detainees would be unduly burdensome and vexatious.
See id. Subject to objections, the District provided responses for ten witness; some examples:
Jeanette Myrick: Ms. Myrick can be reached through counsel for the District for the purposes of a deposition. M s. Myrick will testify regarding DOC Records
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Office procedures, including staffing and training; the inmate-release process; and discrepancy reports. . . .
Sean Day: Mr. Day is an expert retained by Plaintiffs and whose contact information is already in Plaintiffs’ possession. Mr. Day will testify regarding the methods he used to evaluate inmate jackets and prepare the data that was used by Dr. Kriegler in his expert reports.
Id. at 3–4. Plaintiffs argued that these responses were deficient because the District “stated the
names of witnesses and the topics they would testify to but not ‘each fact you expect the witness
to testify to.’” Id. at 5.
On June 12, 2012—after the District filed its present Motion to Compel—this Court ruled
on the plaintiffs’ motion. This Court stated:
[T]he plaintiffs’ interrogatory asks for “each fact that each witness would testify to.” T he Court agrees with Defendant to an extent: this is a step too far. Providing a complete answer to this interrogatory would be impossible. However, defendant’s other objection—that they could not answer such a question because they have not prepared their witnesses—is nonsensical. Defendant provided the names of their witnesses to plaintiffs presumably because the defense intends to call these witnesses at trial. D efendant must have some understanding of their own witnesses’ testimony. Otherwise, naming them as witnesses would be both foolish and illogical….[D]efendant is ordered to provide a summary of the likely testimony of each of the ten witnesses it n amed in its response to plaintiffs’ interrogatory[.]
Barnes v. District of Columbia, 2012 WL 3105218, *4 (D.D.C. June 12, 2012) (ECF No. 358).
If the plaintiffs thought the District’s responses were deficient, surely they thought their
responses were no be tter. The plaintiffs did not even attempt a brief summary of the facts to
which each witness would attest. They did not include their two experts, who they concede will
testify at trial. See Pls.’ Opp’n to Def.’s Mot. to Compel 9, June 8, 2012, ECF No. 354. Instead,
they simply referred to the witnesses’ previous affidavits and interrogatory responses in their
opposition papers. Id. at Exs. 1, 2. Basically, the plaintiffs played a game of discovery chicken,
refusing to detail their witnesses until the District did the same. H owever, a party “is not
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justified in providing insufficient answers just because [the other party] did.” Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 17, 24 (D.D.C. 2009).
The Court understands that the parties may try to gain a competitive advantage through gaming the discovery process. Such strategic maneuvers can cause headaches for courts, as they trudge through multiple discovery motions with no real issues in dispute. The parties drag their feet until prodded, hoping to gain an upper hand through delay. Plaintiffs had previously filed a motion to compel on a nearly identical question. Plaintiffs provided answers even less detailed than the defendant’s, and even admit that they are waiting until “the District responds to plaintiffs’ pending interrogatory.” Pls.’ Resp. to Def.’s Fourth Set of Doc. Prodc. Req. 1. The Court reminds plaintiffs that Federal Rule 37 gives the Court “broad discretion to impose sanctions for discovery violations.” Bonds v. District of Columbia, 93 F.3d 801, 807 ( D.C. Cir. 1996) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 638, 642–43 (1976) (per curiam)); see also D.L. v. District of Columbia, 274 F.R.D. 320, 324–26 (D.D.C. 2011) (Lamberth, C.J.) (explaining wide discretion of trial courts to impose wide variety of sanctions). T his case has been going on for over six years. T he plaintiffs refused to do something they wanted the Court to demand the District to do. D iscovery, at least for the liability phase, is nearing the finish line. If the plaintiffs persist in needlessly gumming up the process, sanctions—not a further warning—may be appropriate.
The plaintiffs are ordered to provide a narrative response to Interrogatory 13. The Court requires plaintiffs to answer the question in the same manner, and with the same level of detail, as the Court ordered the District. If the plaintiffs have any questions about what the Court requires, they may look at the Court’s June 12, 2012 Memorandum and Order, in particular the language block-quoted above. See Barnes, 2012 WL 3105218, *4.
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C. Defendant’s Motion to Preclude Plaintiffs from Using Certain Evidence The District also requests, within the motion to compel discussed above, that the Court preclude the plaintiffs from “using their experts’ reports or testimony at trial.” Def.’s Mem. ISO its Mot. to Compel 5. The District claims that the plaintiffs’ failure “fully to answer Defendant’s Interrogatory No. 13 and timely supplement their expert reports deprives the District of the chance to adequately test plaintiffs’ experts’ conclusions and prejudices the District’s defense of this case.” Id. See also Williams v. Johnson, 278 F.R.D. 10, 14 (D.D.C. 2011) (“[T]he sanction is automatic; ‘[i]f a party fails to provide information…as required by Rule 26(a) or (e), the party is not allowed to use that information…to supply evidence…at trial, unless the failure was substantially justified or harmless.”) (quoting F.R.C.P. 37(c)(1)). H owever, for the reasons discussed regarding the District’s Motion to Strike infra, the Court does not agree with the District’s assertion that plaintiffs’ experts were “lying in wait to express new opinions at the last minute.” Def.’s Mem. ISO its Mot. to Compel 5 n.3 (quoting Iacangelo v. Georgetown Univ., 272 F.R.D. 233, 234 ( D.D.C. 2011)). The plaintiffs’ experts filed their reports within the time allotted by this Court. Therefore, there is no need to preclude the plaintiffs from introducing this evidence. Cf. Dormu v. District of Columbia, 795 F. Supp. 2d 7, 28 n.16 (D.D.C. 2011) (denying motion to strike supplemental expert report when report filed “several months prior to trial, leaving defendants with sufficient time to adjust their trial preparation….Any harm they do experience, however, can be minimized by allowing defendants to depose the expert if they so choose.”) (citing Albert v. Warner-Lambert Co., 2002 WL 745822, *1 (D. Mass. Apr. 24, 2002) (“[I]n lieu of preclusion, the court will allow [the expert] to supplement his report contingent upon his being made available for up to four hours of additional direct deposition testimony at [plaintiff’s] expense.”)).
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D. Defendant’s Motion to Strike Plaintiffs’ Supplemental Expert Reports As discussed in Part III.A. supra, the Court had directed the plaintiffs to respond to the District’s Interrogatories 1 and 2 (requesting information about number of overdetentions during the trial period and overdetentions attributable to the 10 p.m. cut-off rule). The Court took the somewhat unusual move of ordering the plaintiffs to produce new documents in response to the interrogatories. Barnes, 281 F.R.D. at 55–56. At that time, the Court expected the answers to come in the form of supplemental expert reports estimating the number of overdetentions and explaining the reasoning behind those numbers. To permit the production of these reports, the Court reopened discovery until June 11, 2012, E CF No. 345, a nd ultimately extended the deadline via Minute Order to June 14. B y the amended deadline, the plaintiffs filed their amended expert reports answering Interrogatories 1 and 2. See ECF No. 360. When the District received these reports, instead of withdrawing their now-moot Motion to Compel answers to Interrogatories 1 and 2, it responded with a Motion to Strike, Or, In the Alternative, For Extension of Time and Leave to Designate Rebuttal Expert(s), June 29, 2012, ECF No. 365. The District claims that the “latest expert reports radically alter their analysis and vastly increase their estimates of overdetentions in the Trial Period,” and characterize the reports as eleventh hour filings. Def.’s Mem. ISO its Mot. to Strike 1, 5. The District asks the Court to strike the amended expert reports. In the alternative, the District asks the Court to extend discovery for at least 74 days to allow the District to analyze the new reports and depose Dr. Kriegler and Mr. Day, the plaintiffs’ experts. T he District also requests leave to designate potential rebuttal experts. Id. at 12. This is another example of the District apparently misunderstanding this Court’s April 3rd Discovery Opinion. In support of its Motion to Strike, the District dismissively states that
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“plaintiffs had already asserted on multiple occasions that answering [Interrogatories 1 a nd 2] would require not just a supplemental discovery response, but for them to ‘create documents that did not exist’ and consult with their experts.” Id. at 3. The language the District quotes, however, originates from the Court—not the plaintiffs. In its April 3rd Discovery Opinion, the Court stated, “The Court recognizes that ordering a party to create a document that doesn’t exist or to perform analyses it hasn’t yet performed is somewhat unusual…[yet] ordering plaintiffs to create the requested information is reasonable.” Barnes, 281 F.R.D. at 55–56 (emphasis added). There can be no undue surprise that this information was coming because it was what the Court had ordered.5 Between this Motion to Strike and the premature May 22 Motion to Compel responses to Interrogatories 1 and 2, it seems that the District failed to examine or understand the Court’s April 3rd Discovery Opinion. The Court urges the District to study this Court’s previous orders before filing additional motions.
It also seems that the District failed to examine or understand other orders of this Court. The District complains that the expert reports came “literally on the last day of discovery,” and therefore caused undue surprise. Def.’s Mem. ISO its Mot. to Strike 5. The plaintiffs filed their expert reports on June 14, 2012—the deadline established by the Court. The defendant seems to think that the June 14th deadline applied to all aspects of the additional discovery, including the depositions of the experts based on the supplemental expert reports. Def.’s Mem. ISO its Mot. to Strike 4–6, 10–12. The District characterizes the plaintiffs as “lying in wait” and “sandbagging [the District] with three new expert reports.” Id. at 11.
If the District had just read the Court’s orders extending time, it could have refrained
5 The District objects to the form of the plaintiffs’ answer. Def.’s Mem. ISO its Mot. to Strike 2 n.3. However, the plaintiffs answered this way because they were directed to do so by the Court’s April 3rd Discovery Opinion. 2 81 F.R.D. at 55–56. The District is not entitled to dictate the form of the plaintiffs’ response. Huthnance v. District of Columbia, 255 F.R.D. 297, 300 (D.D.C. 2008).
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from such dramatic language and taken a more measured approach. In their April 23, 2012 Motion for a Nunc Pro Tunc Extension of All Discovery Deadlines, ECF No. 343, the plaintiffs stated: “Plaintiffs now estimate that it w ill take until Monday, June 11, 2012 for Mr. Day to complete his investigation and analysis and to pass them on t o Dr. Kriegler, and then for Dr. Kriegler to complete his investigation and analysis, and for both to complete and finalize their reports.” Id. at 6. O n April 27, 2012, t he Court granted plaintiffs’ motion, ordering: “Specifically, the discovery deadlines in this case are hereby extended until Monday, June 11, 2012. Furthermore, the Court shall permit the District to depose both Dr. Kriegler and Mr. Day, at its option.” E CF No. 345. O n June 12, 2012, the Court entered a Minute Order “granting [plaintiffs’] Motion for Extension of Time to produce plaintiffs’ experts’ reports.” T he Order continued: “Plaintiffs are ordered to produce the reports and all related discoverable material no later than 12:00 AM on Thursday June 14, 2012.” F rom these filings, it should have been apparent to the District that it would receive the expert reports on the day of the deadline.
The Court understands that there might have been some ambiguity in its April 27th Order. The Court extended “the discovery deadlines in this case…until Monday, June 11, 2012,” allowed “the District to depose both Dr. Kriegler and Mr. Day, at its option,” but stated that “[n]o further extensions of discovery will be permitted.” ECF No. 345. By this, the Court meant that the District could depose the experts, at its option, after it received the reports. These depositions need not occur before June 11, as the Court considered the leave to take depositions an additional extension of discovery, beyond which “[n]o further extensions….[would] be permitted.” Id. When the District received the reports on June 14, rather than asking the Court to clarify its April 27th Order to determine when and whether it could depose plaintiffs’ experts,6
6 Although no Federal Rule of Civil Procedure specifically governs “motions for clarification,” these motions are generally recognized and allowed by federal courts. See U.S. v. Phillip Morris USA
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it cranked the dial up to eleven and filed a Motion to Strike.
The District claims that the supplemental reports depart so dramatically from the previous
reports that the Court cannot consider them mere updates and must strike them. D ef.’s Mem.
ISO its Mot. to Strike 6. The District relies on Mineba v. Papst, 231 F.R.D. 3 at 6, wherein the
Court struck an amended expert report where “[t]he nature of the second disclosure [was] so
substantially different from the first that it [fell] far outside any reasonable notion of correcting
an incomplete or inaccurate report.” Mineba concerned an attempt by a party to amend their
expert report during trial. Id. The Mineba opinion states that “[t]he purpose of Rule 26(a)(2)
[governing timing of expert disclosures] is to prevent unfair surprise at trial.” Id. at 5–6.
Although this Court wants to finish discovery and proceed to trial as soon as possible, it has not
yet set a trial date. A nother case relied on by the District, Coles v. Perry, 217 F .R.D. 1, 4
(D.D.C. 2003), concerns an attempt by an expert to supplement his report after the close of discovery.7 In the present case, plaintiffs filed their reports during the window of additional
discovery set aside for this purpose. The supplemental reports were filed “as ordered by the court,” F.R.C.P. 26(e)(1)(B), by its April 3rd Discovery Opinion directing plaintiffs to create
documents responsive to Interrogatories 1 and 2. Barnes, 281 F.R.D. at 55–56. The plaintiffs
filed Errata to the Second Supplemental Expert Report, ECF No. 360-3, to correct an incomplete
or incorrect prior report, per Rule 26(e)(1)(A).
Inc., 793 F. Supp. 2d 16 4, 168–69 (D.D.C. 2011) (explaining motions for clarification). “The general purpose of” a classic “motion for clarification is to explain or clarify something ambiguous or vague[.]” Resolution Trust Corp. v. KPMG Peat Marwick, et al., 1993 WL 211555, *2 (E.D. Pa. June 8, 1993).
7 A third case relied on by the District, U.S. ex rel. Purcell v. MWI Corp., 824 F. Supp. 2d 12, 19 (D.D.C. 2011) did not concern the filing of supplemental expert reports. Rather, “the defendant failed to disclose two of its witnesses” at all during discovery, and for that reason the Court granted “the government’s motion to strike those witnesses’ declarations.” Id. at 12. W hile this opinion contains strong passages that sound good for the District, the facts are dissimilar. Here, the plaintiffs submitted supplemental reports—written by experts whom have already been disclosed—pursuant to a Court order. This is very different from springing two entirely new witnesses on a party.
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Motions to strike are strongly disfavored, and the decision of whether to strike all or part
of a pleading or attachment thereto rests within the sound discretion of the Court. See supra
Part.II.B. (collecting cases). As detailed in Part III.D infra, while the Court concedes that the
supplemental reports are different from the prior reports, the Court does not see the changes as so
dramatic and prejudicial to the District as to warrant striking the reports. When considering
strong sanctions a Court must consider less strict options. Bonds, 93 F.3d at 808. To the extent
the supplemental reports introduce new issues, the Court can minimize any prejudice to the
District through less severe means. If parts of the plaintiffs’ new reports contain irrelevant
information, the Court may consider narrower motions to strike or in limine directed at removing
only the irrelevant passages. Moreover, allowing the District to depose the plaintiffs’ experts
ensures the District a fair opportunity to respond to the plaintiffs’ reports.
The Rules require that parties disclose their expert reports “at the times and in the sequence that the Court orders.” F.R.C.P. 26(a)(2)(D). That is what the plaintiffs did.8 Pursuant to the Court’s April 3rd Discovery Opinion and subsequent extensions for time, the plaintiffs
filed supplemental expert reports answering defendant’s Interrogatories 1 and 2. T he Court
reopened discovery for this purpose and the plaintiffs filed those reports within that window.
Since the plaintiffs followed the Court’s order and timely filed their supplemental expert reports,
the Court will not strike them.
8 The plaintiffs supplemented their expert reports under Rule 26(e)(1)(B), pursuant to this Court’s April 3rd Discovery Opinion and subsequent extension orders. Therefore, the Court does not need to consider the requirements of Rule 26(e)(1)(A), which some Courts have read more narrowly. See Keener, 181 F.R.D. at 640 (limiting supplementation under 26(e)(1)(A) to “correcting inaccuracies, or filling the interstices of an incomplete report based upon information that was not available at the time of the initial disclosure.”). In the course of preparing these supplemental reports, the plaintiffs revisited and revised an earlier report and filed errata thereto. The plaintiffs did not revisit the earlier report sua sponte but discovered the inaccuracies as they prepared the reports ordered by this Court. Therefore, this Court finds that this errata filing was proper under Rule 26(e)(1)(A), as the plaintiffs “learn[ed] that in some material respect the [earlier] disclosure or response [was] incomplete or incorrect” and the Court believes that the plaintiffs provided corrections in a timely manner after learning of the need for them.
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E. Defendant’s Motion to Extend and Grant Leave to Designate Rebuttal Experts
This Court has noted that it would give the District an opportunity to depose plaintiffs’
experts Dr. Krieger and Mr. Day after the District received the supplemental expert reports. See
Order, Apr. 17, 2012, ECF No. 345 (“[T]he Court shall permit the District to depose both Dr.
Kriegler and Mr. Day, at its option.”). N ow that the plaintiffs have submitted their expert
reports, the Court will reopen discovery for the limited purpose of allowing the District to depose
plaintiffs’ experts. The Court does not believe it needs to reopen discovery for the full 74 days requested by the District.9 See Def.’s Mem. ISO its Mot. to Strike 12. The District has had the
expert reports for almost three months and has reviewed them when drafting its Motion to Strike
and Reply in support thereto. Therefore, the Court will reopen discovery for 28 days for the sole
purpose of allowing the District to depose Dr. Kriegler and Mr. Day on issues relating to the
expert reports they filed on June 14, 2012, and other matters as allowed by the prior orders of this Court.10
The Court will not reopen discovery to allow the District to designate rebuttal experts.
While the Rules allow a p arty to designate a rebuttal expert within 30 days of receiving an
opposing party’s expert disclosure, F.R.C.P. 26(A)(2)(d)(ii), there is no separate rule conferring a
right to designate a rebuttal expert upon r eceiving a supplemental or amended report from a
previously-disclosed expert. The Court could reopen discovery and grant leave upon a showing
of good cause, as permitted by Federal Rule 16(b) and Local Rule 16.4. A district court has
considerable discretion in handling discovery and expert witnesses. See Food Lion, 104 F.3d at 9 In a bold move, the District states it needs “at the very least, 60 days to analyze” the
supplemental reports. D ef.’s Mem. ISO its Mot. to Strike 12. To put this in context, this is twice the length that Rule 26(A)(2)(d)(ii) would allow the District to designate a rebuttal expert after receiving an initial expert disclosure.
10 For example, in its April 3rd Discovery Opinion, the Court clarified the permissible scope of the District’s deposition of Dr. Kriegler. Barnes, 281 F.R.D. at 57. The parties are urged to review the prior orders of this Court before filing any additional motions to compel or motions for protective orders.
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1012; F.R.C.P. 26(a)(2)(C). The deadline for discovery—save for the allowance to depose plaintiffs’ experts—has
passed. The Court agrees with the plaintiffs that this request falls under Rule 16(b)—not Rule 6(b)—because it asks to modify the discovery deadlines contained in a scheduling order. See Barnes, 278 F .R.D. at 18 (establishing trial plan); Myrdal, 2007 W L 1655875, *2 ( applying 16(b) to request to change discovery deadlines); Mercury Ins., 2007 WL 1589495, *6 (“Filing an expert disclosure or a supplement thereto after the close of discovery requires leave of the Court pursuant to [F.R.C.P.] 16(b).”). T herefore, the District’s request requires a showing that good cause exists to reopen and extend discovery, and the Rules give the Court considerable discretion in deciding whether to grant that request. See Myrdal, 2007 WL 1655875, *2.
There is no good cause where the District passed on several opportunities to timely designate a rebuttal expert. See Johnson., 975 F.2d at 609 (“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment[.]”). On March 6, 2010, the District received Mr. Day’s first report on his review of inmate jackets.11 Def.’s Reply ISO its Mot. to Strike 2, Aug. 15, 2012, ECF No. 381. The District did not then designate a rebuttal expert. O n November 15, 2010, D r. Kriegler released his first expert report, estimating overdetentions based on a stratified random sample of inmate jackets provided by Mr. Day. Id. at 2–3. The District did not then designate a rebuttal expert. On December 2, 2010, Dr. Kriegler revised the numbers in his first expert report. Id. at 3. The District did not then designate a rebuttal expert. On December 13, 2010, Mr. Day filed a supplemental report based on additional
11 An “inmate jacket” is a term referring to the inmate’s physical file, which includes information about the inmate’s term of sentence and time of release. The District also maintained an electronic database of inmate information, known as “JACCS,” that was supposed to compile the information contained in the jackets. Starting in January 2007, the District began systematically tracking overdetentions through the production of Discrepancy Reports. The District did not produce these Discrepancy Reports to the Court until June 2011. For a more thorough discussion of how the District and plaintiffs determined and tracked overdetentions, see Barnes, 793 F. Supp. 2d at 265–72.
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reviews of jackets. Id. at 4. T he District did not then designate a rebuttal expert. A day later, Dr. Kriegler again revised his first report based on Mr. Day’s new report. Id. The District did not then designate a rebuttal expert. On December 7, 2011, the Court reopened limited discovery until April 6, 2012; on February 14, 2012 Dr. Kriegler filed his Second Supplemental Report. Id. at 4–5. The District did not then designate a rebuttal expert. From April 3, 2012 onwards, the Court extended discovery, eventually setting the deadline for plaintiffs’ supplemental expert reports for June 14, 2012. Id. at 5. The District did not then designate a rebuttal expert. At no time, in the almost two years since receiving the first report, did the District feel the need to designate a rebuttal expert. It is only now, after all the extended deadlines have passed and the Court has stated that “[n]o further extensions of discovery will be permitted,” Order, Apr. 27, 2012, ECF No. 345, that the District decides it might need an expert witness to rebut Mr. Day and Dr. Kriegler’s reports.
If the plaintiffs submitted reports vastly different from their original reports, then the District might need another opportunity to designate a rebuttal expert. Therefore, the Court must examine the supplemental reports and determine how they differ from the original reports. First, bear in mind that the plaintiffs created the supplemental reports at the direction of the Court. After summary judgment, only a subset of the facts remained in dispute. T he Court—so the plaintiffs could respond to interrogatories posed by the District—asked the plaintiffs to revise their data to focus only on the overdetentions in dispute. Barnes, 281 F .R.D. at 55–56. T he Court understood that this might require additional analysis on t he behalf of the plaintiffs’ experts, and communicated as much in its April 3rd Discovery Opinion. Id. The District should have known such analysis was forthcoming, so it cannot claim shock when plaintiffs produced what they were asked to produce.
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The District claims that the supplemental reports represent “an entirely new analysis— independent of both methodologies used in Dr. Kriegler’s 2nd Report” and estimate a number of overdetentions during the Trial Period “almost one third greater than Dr. Kriegler’s previous estimate.” Def.’s Mem. ISO its Mot. to Strike 3–4 (original formatting omitted). In particular, the District claims that Dr. Kriegler’s Third Supplemental Report uses different data sources (the District’s Discrepancy Reports instead of statistically sampled jacket data), employs different statistical methods (simple random sampling instead of stratified random sampling), and comes to different results (estimating 1,543 overdetentions instead of 1,180). Id. at 6–7. The District claims that Mr. Day’s June 11th report differs from his previous report because it “involves the review of entries from a ‘Review Spreadsheet’ created by Dr. Kriegler from the District’s Release Discrepancy Database” instead of “reviewing [a] random, statistically-selected assortment of inmate jackets.” Id. at 8. The District claims that Dr. Kriegler’s Errata to his Second Report simply revises the numbers upwards without any “justification for this correction.” Id. at 9.
The plaintiffs respond that these changes were justified and, in any event, do not require the District to designate a rebuttal expert. The plaintiffs state that their reports were not prepared on a whim, but pursuant to Court order. P ls.’ Opp’n to Def.’s Mot. to Strike 16–17, Aug. 8, 2012, ECF No. 378. They mention that after the plaintiffs told the Court and the District that they anticipated the need to do additional analysis, “the District’s only response was to ask for leave to depose Mr. Day…[and] Dr. Kriegler upon receipt of their supplemental reports.” Id. at 19. The plaintiffs contend that Mr. Day had previously analyzed the District Audit Analysis, which is “virtually identical in design and content to the Release Discrepancy Database” analyzed in Mr. Day’s June 2012 report. Id. at 20. The District did not produce its Discrepancy
24

Reports to the Court until June 2011. Barnes, 793 F. Supp. 2d at 270. The change in data
sources, plaintiffs allege, reflects newly produced data that allows plaintiffs to separate out
overdetentions attributable to the 10 pm cut-off rule more accurately; but Mr. Day did not change
how he reviewed the data. Pls.’ Opp’n to Def.’s Mot. to Strike 26–32. The plaintiffs explain in
detail the reasons why Dr. Kriegler shifted from a stratified random sample in his Second Report
to a simple random sample in his Third Report. See id. at 43–45. Regardless of the particulars
of why they made the change, plaintiffs state:
The District does not state why adding a simple random sample of a stratified random sample instead of a stratified random sample…makes the analysis so novel that it requires an expert to understand it where before the District did not designate an expert. Arguably, if the type of statistical analysis used in the Third Supplemental Report were more complicated than the type of analysis used in the Original Report and Second Supplemental Report, then this might support the District’s claim to need an expert now where it did not before. But the opposite is true—a statistical analysis using a stratified random sampling design is much more complex than one using a simple random sample[.]
Id. at 42–43. This is perhaps the plaintiffs’ most compelling argument.
In essence, the District’s argument is that the supplemental expert reports and errata are
different. S tratified random sampling is different from simple random sampling; the
Discrepancy Reports are different from jackets; 1,180 is different from 1,543. What the District
fails to explain, however, is how these differences relate to its request to potentially designate
rebuttal experts. From its previous inaction, the Court assumes that the District was perfectly
fine going into trial without a rebuttal expert when Dr. Kriegler’s report used stratified random
sampling. The District does not explain how the differences change the game—how the methods
and data sources used are different such that the District did not need a rebuttal expert before, but
may need one now. It does not explain why the District felt it could adequately rebut, without an
expert, Dr. Kriegler’s Second Supplemental Report, but now would be unduly prejudiced if the
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Court does not allow it to designate an expert. The District passed on multiple opportunities to
designate a rebuttal expert. Rule 16(b) requires a showing of good cause before the Court will
alter the scheduling order. The Court finds no such good cause exists, and the District has not
convinced it otherwise.
If the District sees a problem with methods and data sources used in the supplemental
reports, it can address them during its depositions of Mr. Day and Dr. Kriegler. If the
supplemental reports contain new, irrelevant information such as “producing expert opinions on
a range of other topics, extending even to the idiosyncrasies of various employee-review
techniques in the DOC Records Office,” Def.’s Mem. ISO its Mot. to Strike 12, then the solution
would be targeted motions in limine or motions to strike. The solution is not to strike the whole
report or allow the District to appoint an unnecessary expert to rebut irrelevant information.
Judge Facciola, when faced with a similar set of facts, came to a reasonable solution. In
Hubbard v. Potter, 247 F.R.D. 27, 31 ( D.D.C. 2008), the defendant received a supplemental
report from plaintiffs’ expert. In response, the defendant sought leave to designate rebuttal
witnesses, claiming that he “would be prejudiced if not permitted to respond to [plaintiffs’
expert’s] conclusions in his second report.” Id. Judge Facciola decided:
Unfortunately for defendant, this argument comes too late. As noted by plaintiffs, pursuant to the scheduling order…all expert designations were due on o r before March 3, 2006, w ith rebuttal designations due on or before March 31, 2006. At that point in time, defendant chose not to designate an expert witness. It also chose not to designate a rebuttal expert witness. On September 8, 2006, however, when plaintiffs’ expert filed his supplemental report, defendant moved to strike, limit, or exclude the report on the grounds that it exceeded the subject matter of the first report. In denying defendant's motion, the Court fashioned a practical solution to address defendant’s concerns by allowing defendant to take a supplemental deposition of plaintiffs’ expert. Defendant has thus had ample opportunity to address the issues raised by plaintiffs’ expert’s supplemental report. Defendant has identified no reason why the court should allow defendant to change its mind at this late date, when defendant was clearly given ample opportunity to 1) designate an expert witness, 2) designate a rebuttal expert, and
26

3) depose plaintiffs’ expert on not one but two occasions, following the submission of both of plaintiffs’ experts’ reports. Id. The facts in this case are similar. The District, after receiving the plaintiffs’ previous expert reports, did not designate their own expert. W hen this Court reopened discovery so plaintiffs could create reports to answer Interrogatories 1 and 2, the District did not seek leave to designate experts. And in this case, instead of granting the District’s motion to strike or leave to designate rebuttal experts, the Court will “fashion[] a practical solution to address defendant’s concerns by allowing defendant to take a…deposition” of plaintiffs’ experts. 12 Id. Recognizing Judge Facciola’s wisdom and expertise resolving discovery disputes, this Court is confident following his lead. See also Dormu, 795 F. Supp. 2d at 28 n.16 (denying motion to strike supplemental expert report and allowing deposition of expert to minimize any harm or prejudice); Warner, 2002 WL 745822, *1 (allowing additional deposition of expert in lieu of precluding supplemental expert report). At this stage, the Court will allow the District the opportunity to depose plaintiffs’ experts, but nothing more. The Court does not feel that the changes reflected in the plaintiffs’ supplemental reports provide good cause to amend the scheduling order to allow the designation of rebuttal experts, where the District had previously passed on s everal opportunities to so designate. Nevertheless, this does not foreclose the District’s ability to designate rebuttal experts in the future if the plaintiffs continue to supplement and amend their expert reports. For example, if in response to the discovery compelled in the following section, plaintiffs file new amended expert reports, the Court might then consider whether leave to designate rebuttal experts is warranted.
12 This Court feels that it has already fashioned this solution, and that it had already given the District leave to “depose both Dr. Kriegler and Mr. Day, at its option” after receipt of their supplemental reports. Order, Apr. 27, 2012, ECF No. 345. N evertheless, the Court will “refashion” the solution and formally reopen discovery to allow for the depositions of Dr. Kriegler and Mr. Day.
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F. Plaintiff’s Motion to Compel Production of the Release Discrepancy Database Finally, the Court considers the plaintiffs’ June 26, 2012 M otion to Compel the Production of the Release Discrepancy Database. ECF No. 362. Plaintiffs’ had originally filed a similar Motion to Compel before the end of discovery. Non-Consent Mot. to Compel Prodc. of the Release Discrepancy Database, June 11, 2012, ECF No. 356. However, this motion failed to include the required certification that the plaintiffs met and conferred with the District prior to filing. See F.R.C.P. 37(a)(1). A fter so conferring, the plaintiffs filed the present motion to supersede the previous defective motion. See Pls.’ Mot. to Compel 1; Def.’s Opp’n to Pls.’ Mot. to Compel 3, July, 12, 2012, ECF No. 369. In their Re-Stated Motion to Compel, the plaintiffs argue that they have not received all the data and documents they requested from the District. See Pls.’ Mot. to Compel 3–4. A short history of how the District and plaintiffs have tracked overdetentions will be helpful. Early in the original class period—from approximately 2005 to 2007—the District had no organized way to track inmate overdetentions. T he data for this period primarily came from analyses of inmates’ physical files (commonly referred to as “jackets”) and the DOC’s data management system, called the Jail and Community Corrections System (“JACCS”). See Barnes, 793 F. Supp. 2d at 265–70. To estimate overdetentions occurring during this early period, the plaintiffs’ experts used a combination of the JACCS data and a stratified random sample of physical jackets. Id. at 270–71. Since the District had no competing data the Court could credit, the Court deemed plaintiffs’ facts for this early period uncontested, and granted plaintiffs summary judgment as to the District’s liability for overdetentions that occurred from September 1, 2005 to December 31, 2006. Id. at 280. Beginning in January 2007, the District finally began tracking overdetentions in a
28

systematic way. T he DOC began producing “Discrepancy Reports” listing individual overdetentions by month and noting the reasons for the overdetentions. The District provided these reports to the plaintiffs following a June 2011 hearing before this Court. Id. at 270. F or the purposes of these reports, the DOC defined an “overdetention” as “anyone released after 11:59 p.m. on t he day they are ordered released, or alternatively, situations where the end of sentence calculation was computed incorrectly.” Souverain Decl. 2, June 7, 2011, ECF No. 3012. The DOC prepares these reports by running a query in the JACCS database to generate a “‘Crystal Report,’ which identifies the inmates who have been potentially over-detained. The institutional file of each inmate on this list is then reviewed by hand and a notation is entered into Lotus Notes as to whether the inmate was over-detained or not.” Id. at 1–2 (emphasis in original). This Court credited these Discrepancy Reports and found that they created a contested issue of material fact, precluding an award of summary judgment to either side. Barnes, 793 F. Supp. 2d at 292–93.
After the Court resolved the cross-motions for summary judgment, the District’s liability for overdetentions—not attributable to the 10 p.m. cut-off rule—that occurred between January 1, 2007 and February 25, 2008 remained in dispute. See Barnes, 278 F.R.D. at 17. The Court refers to this period, from January 2007 to February 2008, as the “disputed” or “Trial Period.” See id. Following this narrowing of the issues, the Court opened a window of “limited fact and expert discovery as to liability” permitting “[o]nly such discovery as will assist the parties in determining how many overdetentions occurred from January 1, 2007 to February 25, 2008.” Id. at 23. The Court stated that “[n]o discovery on ‘process’ and related issues shall be permitted.” Id. The Court reaffirmed and clarified the limited scope of additional discovery in its subsequent April 3rd Discovery Opinion. See Barnes, 281 F.R.D. at 55–57.
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Plaintiffs claim that the District has wrongfully withheld some of the underlying data the DOC used to create its Release Discrepancy Reports. As noted above, the Reports are the result of District employees analyzing and compiling inmate data. Plaintiffs refer to this underlying data as the “Release Discrepancy Database,” and they claim they only received one version of it—what the plaintiffs call “Beta.” P laintiffs seek, among other documents, the entire Release Discrepancy Database—what the plaintiffs call “Alpha.” See Pls.’ Mot. to Compel 1–3. They also seek the query the DOC used to analyze inmate data and generate the Crystal Reports and Release Discrepancy Database. See Pls.’ Reply ISO its Mot. to Compel 1–3, July 25, 2012, ECF No. 373. The District counters that “plaintiffs have all the data they demanded, including all the underlying JACCS data used to generate the Release Discrepancy Database,” and that plaintiffs’ motion is untimely. Def.’s Opp’n to Pls.’ Mot. to Compel 8, 9–11, July 12, 2012, ECF No. 369.
1. Timeliness of Plaintiffs’ Motion to Compel The lateness of plaintiffs’ motion concerns the Court. The plaintiffs filed this motion on June 25, 2012 —eleven days after the close of discovery, a d eadline that had been extended multiple times to accommodate the plaintiffs. See ECF docket entries 328, 339, 343, 345, 355 ; Minute Order, Apr. 23, 2012 (granting plaintiffs’ Motion for Extension of Time, ECF No. 339); Minute Order, June 12, 2012 (granting plaintiff’s Motion for Extension of Time, ECF No. 355). Based on this untimeliness, the Court might be justified in denying plaintiffs’ motion to compel. See Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F .R.D. 95, 104 (D.D.C. 2005) (ordering protective order against untimely discovery filing). The District cites a long list of cases to support its position that this Court could deny plaintiffs’ motion simply because it was filed after the close of discovery. See Def.’s Opp’n to Pls.’ Mot. to Compel 10–11 (citing, e.g., Klugel v. Clough, 252 F.R.D. 53, 55–56 (D.D.C. 2008) (motion to compel coming two months after close
30

of discovery denied as untimely); Long v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008)
(denying motion where plaintiff obtained allegedly incomplete document production “over three
years prior to the filing of his motion.”)). However, if courts should deny all motions to compel
filed after the close of discovery, that would be the rule; it is not so. Cf. Jinks-Umstead v.
England, 227 F.R.D. 143, 153 (D.D.C. 2005) (allowing untimely discovery notices to stand).
At the end of its paragraph arguing that this Court should deny plaintiffs’ motion as
untimely, the District included one citation to contrary authority. Def.’s Opp’n to Pls.’ Mot. to
Compel 10–11. T his Court recognizes the case—Lurie v. MAPMG, 262 F.R.D. 29 (D.D.C.
2009) (Lamberth, C.J.)—as its own. In that opinion, this Court stated:
Although [defendant] contends that [plaintiff]’s motion to compel is untimely, it cites no a uthority for its position that a motion to compel filed outside the discovery period is untimely per se. Indeed, to the contrary, courts routinely consider motions related to discovery, even though they are filed outside the discovery period, especially where the time of filing of such a motion is attributable, as it is here, to the parties’ attempted settlement of the discovery dispute. See, e.g., McFadden v. Ballard, Spahr, Andrews, & Ingersoll, LLP, 243 F.R.D. 1, 11 ( D.D.C. 2007) (noting that the federal rules contain no provision regarding the time of filing for a motion to compel and suggesting that a per se rule would create perverse incentives in discovery).
262 F.R.D. at 31. This Court believes its discretion to manage its docket and oversee discovery
cuts both ways. While the Court is perfectly justified in denying an untimely motion if it comes
too late (see Dag, 226 F .R.D. at 104), it may also exercise its discretion to permit motions to
compel coming after the close of discovery. Jinks-Umstead, 227 F.R.D. at 153; Lurie, 262
F.R.D. at 31. The time of the filing does not end the inquiry.
Certainly Courts might be less willing to grant a discovery motion filed after a scheduling
order’s discovery deadline has passed, when the discovery deadlines have been extended several
times over. Cf., Lurie v. MAPMG, 589 F. Supp. 2d (D.D.C. 2008) (Lamberth, J.) (“Given their
heavy case loads, district courts require the effective case management tools provided by Rule
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16. Therefore, after the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings.”) (quoting Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)); Johnson, 975 F.2d at 610 (“A scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded without peril.’…[D]isregard of the order would undermine the court’s ability to control its docket, disrupt the agreed-upon course of litigation, and reward the indolent and the cavalier.”) (quoting Gestener Corp v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)).
On the other hand, since there is no r ule “that a motion to compel filed outside the discovery period is untimely per se,” Lurie, 262 F.R.D. at 31, plaintiffs do not have to meet the requirements of Federal Rule 16(b) and Local Rule 16.4 to file a motion to compel. After all, they are not seeking an amendment to the scheduling order to reopen discovery; they are demanding the production of documents pursuant to requests served during the discovery period. Plaintiffs’ are not asking for “new” discovery—they are asking for discovery they should have already received. Therefore, while the “good cause” and “diligence” requirements of 16(b) may be helpful in determining whether plaintiffs’ Motion to Compel comes too late, they do not control. That said, the parties do not have free reign to file discovery motions long after discovery has closed, without any justification for the delay.
This Court feels that it has been very generous in extending discovery, while warning the parties that—at some point—discovery must end. See, e.g., Order, Apr. 27, 2012, ECF No. 345 (extending discovery but stating, “No further extensions of discovery will be permitted.”). However, unless there would be some undue prejudice to the parties, it is for the Court to decide when this generosity runs out. I n Beale v. District of Columbia, 545 F. Supp. 2d 8, 15 –16 (D.D.C. 2008), the plaintiffs contended that the Judge Kay “bound himself to the deadlines for
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the defendant’s expert reports and the close of discovery…because he wrote [in an earlier Order]: ‘There will be no further extensions of discovery.’” Judge Urbina eloquently responded:
The plaintiffs forget a fundamental rule of litigation: the court’s discretionary pronouncements are for it—not the parties—to enforce. A judge does not bind his own broad discretion when he runs a tight ship. A nd if, in furtherance of case management, a judge occasionally betrays the fact that his bark is scarier than his bite, that is not a grievance on which a losing party is entitled to rest a reversal. 545 F. Supp. 2d at 16 (citations omitted). This Court truly wishes, in the spirit of its April 27, 2012 Order, ECF No. 345, that discovery for the liability phase would be finished by now. However, the Court finds reason to partially grant plaintiffs’ Motion to Compel, despite the fact that it was filed after the close of fact discovery. The plaintiffs filed their motion less than two weeks after the close of additional discovery. The cases cited by the District, Def.’s Opp’n to Pls.’ Mot. to Compel 10, deal with significantly longer delays. See Klugel, 252 F.R.D. at 55–56 (motion to compel filed two months after close of discovery); Long, 561 F. Supp. 2d at 91 (motion filed over three years after plaintiff received allegedly incomplete document production); Suntrust Bank v. Blue Water Fiber, LP, 210 F.R.D. 196, 201–202 (E.D. Mich. 2002) (motion filed 18 months after discovery closed); Tim W. Koerner & Assocs., Inc., 492 F. Supp. 294, 298 ( S.D. Tex. 1980) (motion filed nine months after plaintiff received allegedly defective production). Since “courts routinely consider motions related to discovery[] even though they are filed outside the discovery period,” Lurie, 262 F.R.D. at 31, this Court finds that an eleven day delay does not necessarily disqualify plaintiffs’ motion.
2. Substantive Merits of Plaintiffs’ Motion to Compel The timeliness of plaintiffs’ motion will play a factor, but not control, the Court’s disposition of plaintiffs’ Motion to Compel. Therefore, the Court will consider the substantive
33

merits of plaintiffs’ requests in greater detail. Plaintiffs claim the information they seek relates to three previous document requests.
Plaintiffs’ Eighth Document Requests sought “[a] Release Processing System Data Production to include data from all fields and all tables for inmates released on or after September 1, 2005” and “all writings or documents related to any Lotus Notes system used in the commitment detention or release of inmates from any DOC facility including data in-putted into the system since 2005 and all writings or documents related to show how the system was created or is maintained or operated.” See Def.’s Resp. to Pls.’ Eighth Doc. Req. 4, 8, M ar. 29, 2010, E CF No. 366-4 (original formatting omitted). In the Document Requests Served in the Deposition Notice of Shirley Simmons, plaintiffs requested “[a]ny other reports or writings generated by or for the District of Columbia regarding late releases and erroneous releases.” See Def.’s Resp. to Pls.’ Doc. Req. Served in Dep. Notice of Shirley Simmons 8, March 23, 2010, ECF No. 366-6. The District argues that it produced everything responsive to these requests, subject to its objections limiting production to the class period; and, in any event, plaintiffs’ requests come years after they should have realized the production was incomplete. See Def.’s Opp’n to Pls.’ Mot. to Compel 4–11.
After ruling on summary judgment, the Court ordered the parties to focus their remaining discovery efforts on the “disputed” or “Trial Period.” Barnes, 278 F.R.D. at 17. Despite this, plaintiffs seek discovery beyond the Trial Period, including “the entire Release Discrepancy Database for the class period to date.” Pls.’ Mot. to Compel 1. The document requests plaintiffs claim cover this all predate this Court’s summary judgment ruling. Compare Id. at 10–13 (listing three document requests), with Barnes, 793 F. Supp. 2d at 292–93 (June 24, 2011).
34

Plaintiffs’ Eighth Document Requests, quoted supra, came before March 29, 2010.13 See Def.’s
Resp. to Pls.’ Eighth Doc. Req. 10. P laintiffs’ Document Request Served in Deposition Notice
of Shirley Simmons, quoted supra, came before March 23, 2010. See Def.’s Resp. to Pls.’ Doc.
Req. Served in Dep. Notice of Shirley Simmons 10. When the Court restricted all additional
discovery to the “Trial Period,” it stated that “[d]iscovery beyond this narrow issue would
needlessly prolong this litigation, since plaintiffs had ample opportunity to probe such issues
prior to the close of liability-phase discovery.” 278 F.R.D. at 18–19. The Court finds no reason
to reopen discovery beyond the disputed period. T o the extent the Court grants any part of
plaintiffs’ Motion to Compel, such production shall be limited to documents relating to alleged
overdetentions occurring from January 1, 2007 t o February 25, 2008 , and any documents or
writings that would aid plaintiffs in interpreting data from that period (even if such writings were
created outside of the Trial Period).
i. Plaintiffs’ Request for the Entire Release Discrepancy Database for the Class Period and All Documents Needed to Interpret the Data
First, the plaintiffs ask the Court to compel the District to produce:
the entire Release Discrepancy Database for the class period to date in native format or in an excel spreadsheet, as well as all documents needed to interpret the data in the database, such as the names of the fields, both the programmer names and the data entry field names, and to produce all writings on how the database was created and how it has been used by the District.
Pls.’ Mot. to Compel 1–2. As noted above, the Court will not permit any production beyond the
Trial Period. Therefore, plaintiffs are not entitled to production of “the entire Release
Discrepancy Database” regardless of whether this information is responsive to an earlier
document request. The time for that discovery has long since passed, and the Court and parties
13 The plaintiffs attached, as the exhibits to their Motion to Compel, the District’s responses to their document requests instead of the original requests. See Pls.’ Sealed Exs., July 2, 2012, E CF Nos. 366-1–10. T he District’s responses are dated, and logic dictates that the plaintiffs could not serve requests before the date the District responded.
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have shifted their focus to the Trial Period. In the next section, the Court considers whether the
plaintiffs are entitled to the complete Release Discrepancy Database as it relates to the overdetentions that occurred during the Trial Period.14
The party filing a motion to compel has the burden of showing that the production they
received is incomplete or inadequate. Equal Rights Ctr., 246 F.R.D. at 32. There is a showing
that the District withheld the query DOC used to analyze inmate data and generate the Crystal Reports and Release Discrepancy Database.15 See Pls.’ Mot. to Compel 5–8; Pls.’ Reply ISO its
Mot. to Compel 1–4. The “query” refers to the search algorithm the DOC ran against inmate
data to identify potential overdetentions. In essence, it is a set of software commands created by
the District to help create the Discrepancy Reports. A s such, it is “electronically stored
information” that counts as a “writing” under Federal Rule 34(a)(1)(A). The Court also agrees
with plaintiffs that the query is a “writing generated by or for the government of the
District…regarding late releases or erroneous releases” relating to “documents needed to
interpret the data in the database.” See Pls.’ Reply ISO its Mot. to Compel 3. T he query is
clearly relevant to the case. In order for the plaintiffs to understand fully the District’s
Discrepancy Reports, they need to have all the underlying data and information on how the DOC
prepared the Reports. The query the DOC used is a cr itical piece of this—it selected which
14 Although the Court separates the plaintiffs’ motion into two “requests,” there is some overlap between the two.
15 The District moved for leave to file a surreply, claiming that “plaintiffs in their Reply raise for the first time the issue of whether the District produced the disputed query[.]” Def.’s Mot. for Leave to File Surreply, Aug. 2, 2012, ECF No. 376. This Court, noting that “surreplies are generally disfavored,” denied the District’s motion. Memorandum and Order, Sept. 5, 2012, E CF No. 386 (quoting Glass v. LaHood, 786 F . Supp. 2d 189, 231 (D.D.C. 2011)). The Court concedes that plaintiffs went into far greater detail about the query in thier Reply. See Pls.’ Reply ISO its Mot. to Compel 1–4. However, this was in direct response to the District’s lengthy discussion of the query in its Opposition. See Def.’s Opp’n to Pls.’ Mot. to Compel 5–8. Therefore, if anyone raised it for the first time, it was the District. And most importantly, this Court thoroughly reviewed the District’s proposed surreply before denying leave. The Court did not see anything that would convince it to rule on plaintiffs’ motion differently.
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records would be subject to further review. See Souverain Decl. 1–2 (“In order to identify an over-detention, the DOC runs a “Crystal Report,” which identified the inmates who have been potentially over-detained.”); Decl. of Steve Fezuk ¶ 5, July 12, 2012, E CF No. 370-3 (“Every month, a query is run in JACCS to identify potential late releases, and the data obtained from the query is exported (in spreadsheet form) into the Release Discrepancy Database.”); Decl. of Reena Chakraborty passim, June 29, 2012, ECF No. 370-4 (discussing use of query in preparing Discrepancy Reports). The plaintiffs have the right to check the District’s work and determine whether the Discrepancy Reports accurately reflect the total number of overdetentions.
Having established that the query is a writing, falls under one of the plaintiffs’ previous document requests, and is relevant, the Court must determine if there is any reason not to compel its production. If the plaintiffs already received the query the District used, then there is nothing to compel. Cf. Hubbard, 247 F.R.D. at 29 (“[P]laintiffs fail to account for the possibility that they may in fact have already received all responsive documents.”). T he District seems to concede, in its Opposition and exhibits thereto, that the plaintiffs have not received the query the DOC used to prepare its Discrepancy Reports. The District repeatedly argues that “the query identified [by plaintiffs] is not the one used to generate the Release Discrepancy Database.” See, e.g., Def.’s Opp’n to Pls.’ Mot. to Compel 6. What is missing—tellingly—is any claim by the District that it has already produced the query the DOC did use. E ven in their proposed Surreply—which the District claimed was necessary to counter the plaintiffs’ “new” allegation in Reply that the District did not produce the query (Def.’s Mot. for Leave to File Surreply 2)—the best the District could argue was that since the plaintiffs had “re-created” the disputed query “based on t he information provided by the District” they already have it and their motion is moot. Def.’s Proposed Surreply 2, Aug. 2, 2012, ECF No. 376-2. This does not explain why the
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District never produced the query in the first place, and therefore the plaintiffs meet their burden of showing that the District’s production was incomplete.16
After incompleteness has been established, the burden shifts to the party opposing
production to show that the movant’s requests are burdensome, overly broad, vague, outside the
scope of discovery, or otherwise fall within the limitations on discovery in Rule 26(b)(2)(C).
Chubb Integrated Sys. Ltd. v. Nat’l Bank of Washington, 103 F.R.D. 52, 59–60 (D.D.C. 1984). The plaintiffs should not have to reverse engineer the District’s query.17 It would be much
simpler for the District just to produce it. Therefore, the query’s production would not be
“unreasonably cumulative or duplicative” and it could not be “obtained from some other source”
than the District “that is more convenient, less burdensome, or less expensive.” F .R.C.P.
26(b)(2)(C)(i). Moreover, the District makes no claim that “the burden or expense of the
proposed discovery outweighs its likely benefit.” F .R.C.P. 26(b)(2)(C)(iii). T he District does
not contend that the query would be particularly expensive to find or produce. Presumably, the
query is simply a set of instructions that the Lotus Notes database program runs against the
inmate data. T he query itself must dwarf in “size” when compared to the data to which it is
being applied. Furthermore, as a query repeatedly used by the DOC to help generate its
Discrepancy Reports, it should be easily identifiable. Based on the District’s multiple assertions
that the plaintiffs are confused as to which query the DOC ran (see, e.g., Def.’s Opp’n to Pls.’
Mot. to Compel 6–8), surely the District knows which query the DOC did run.
16 It is not material to the outcome of this motion that, in a sense, the District’s Opposition made the clearest case that the plaintiffs do not have the query. A fter reading the briefings, the Court is convinced that the District failed to identify or produce something it should have.
17 The District also does not get to say, in one place, that the plaintiffs already have the correct query because they re-created it, Def.’s Proposed Surreply 2, but claim elsewhere that the plaintiffs’ query was not the one used by the District. See Def.’s Opp’n to Pls.’ Mot. to Compel 7 (“Plaintiffs simply assumed that the overbroad query developed by Lee Gazlay to identify potential overdetentions is the same one used by the DOC to generate the Release Discrepancy Database. Not so.”).
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The District rests part of its argument on Federal Rule 26(b)(2)(C)(ii), which provides that “the court must limit the frequency or extent of discovery otherwise allowed by these rules…if it determines that…the party seeking discovery has had ample opportunity to obtain the information by discovery in the action[.]” See also Def.’s Opp’n to Pls.’ Mot. to Compel 11 (“[P]laintiffs’ motion should be denied pursuant to Fed. R. Civ. P. 26(b)(2)(C)(ii)[.]”). This is where the timeliness of plaintiffs’ motion—discussed in detail in Part III.F.1. supra—comes in. When a party’s motion comes late, some courts have denied motions to compel on 26(b)(2)(C)(ii) grounds because the party “had ample opportunity to obtain the information during the fact discovery period, and failed to raise the issue with the Court at the appropriate time.” Gucci America, Inc. v. Guess?, Inc., 790 F. Supp. 2d 136, 140–42 (S.D.N.Y. 2011).
The District’s own Opposition helps explain why the plaintiffs might not have objected to this incomplete production earlier—the plaintiffs could have been under the false impression, for some time, that they already had the query the District used. As the District explains:
Plaintiffs…cite the query developed by Lee Gazlay (a former consultant for DOC) to identify potential late releases as the source of the “Crystal Reports” which are exported on a monthly basis from JACCS into the Release Discrepancy Database. But the query identified is not the one used to generate the Release Discrepancy Database….[T]he query identified by Lee Gazlay and discussed in his deposition has never been identified (by DOC) as the one used by DOC to generate the Release Discrepancy Database. Def.’s Opp’n to Pls.’ Mot. to Compel 6. What the District does not say is that it has produced the query that DOC did use, and if the plaintiffs searched the production they could have corrected their mistake. Generally, adversaries do not have a duty to actively help the other side—but the District did have a duty to produce the query. The District’s Opposition also does not provide a real explanation of why the query was not produced in the first place. The District cannot withhold discoverable information, allow plaintiffs falsely to think they already have the
39

information, and then claim the request comes too late once plaintiffs realize they do not have the correct information. Permitting such an approach could incentivize discovery abuses.
The “query” is a writing, the production of which is reasonably calculated to lead to the production of relevant evidence. See F.R.C.P. 34(a)(1)(A); F.R.C.P. 26(b)(1). It should have been produced pursuant to plaintiffs previous request for “all writings or documents related to show how the system was created,” See Def.’s Resp. to Pls.’ Eighth Doc. Req. 8. Its production has been again requested by the plaintiffs’ motion to compel “all documents needed to interpret the data in the database” and “all writings on how the database was created and how it has been used by the District.” Pls.’ Mot. to Compel 1–2. With the burden of showing that the District’s production was incomplete met (see Guantanamera Cigar Co. v. Corporation Habanos, S.A., 263 F.R.D. 1, 7 (D.D.C. 2009) (Lamberth, C.J.)), the District has not met its burden to show that the plaintiffs’ request is overbroad, vague, or falls under one of the limitations of Rule 26(b)(2)(C). See Chubb, 103 F.R.D. at 59–60. While the plaintiffs’ request for the query comes late, that does not overcome the plaintiffs’ right to the information. Therefore, the Court will grant, in part, plaintiffs motion to compel as to their first request. T he Court will order the immediate production of any database query or search algorithm used by the District during the Trial Period to help prepare its Discrepancy Reports.
However, the plaintiffs’ request for the entire Release Discrepancy Database is overbroad, especially considering the Court’s narrowing of the remaining discovery to the “Trial Period.” Furthermore, except as to the “query,” the plaintiffs have not shown that the District’s production was otherwise incomplete. In the following section, the Court will discuss in greater detail the plaintiffs’ claim that there are records and data missing from the produced version of the Release Discrepancy Database.
40

ii. Plaintiffs’ Request for the All the Data the District Used to Complete its Discrepancy Reports
Second, the plaintiffs ask the Court to compel the District to produce: the entire database or electronic compilation of records from which the discrepancy reports filed by the District under Notice of Filing [Document # 301] and referenced by Ms. Souverain in her Declaration [Document # 301 -2] [“Delta”] were taken from, if that database is different from the complete Release Discrepancy Database [“Alpha”].18 Pls.’ Mot. to Compel 2. As with the plaintiffs’ first request, any production would need to be limited to the Trial Period, and the Court will not order the production of “the entire database” extending beyond the period of overdetentions in dispute. Plaintiffs’ basic argument is that while “complying with the Court’s order to calculate total over-detentions for the Trial Period and total ‘disputed over-detentions’ for the Trial Period,” plaintiffs’ expert examined “the information available,” and discovered that “the version of Release Discrepancy Database the District produced” was missing information. Pls.’ Mot. to Compel 3–4. A s such, the plaintiffs request “production of the missing records, the missing comments, and the missing entries from the Discrepancy Type field.” Id. at 4. The District argues that there is “no data is missing here.” Def.’s Opp’n to Pls.’ Mot. to Compel 4 (formatting omitted). F irst, the District spends over three pages of its Opposition arguing that the plaintiffs used the wrong “query” to examine the District’s raw data and “find” missing records. Id. at 4–8. Since the plaintiffs used the wrong “query,” their claims about missing information are erroneous. See id. Furthermore, as to the plaintiffs’ “complain[t] that empty comments in the District’s Release Discrepancy Database is ‘missing’ information that should be compelled,” the District responds: “However, when District employees are entering 18 The Court also considers, in this section, the plaintiffs’ request for “Alpha”—the entire Release Discrepancy Database which, plaintiffs claim, contains records missing from what has been produced.
41

data in the Release Discrepancy Database, comments are optional.” Id. at 7 (emphasis in original). Overall, the District’s argument is: “The records plaintiffs claim are ‘missing’ were never part of the Release Discrepancy Database in the first place; plaintiffs have all the data they demanded, including all the underlying JACCS data used to generate the Release Discrepancy Database....The information plaintiffs claim is ‘missing’ or ‘withheld’ is neither. T he District produced the complete Release Discrepancy Database, and all the data from which it was developed.” Id. at 8–9.
This request comes down to whether the plaintiffs have met their burden of showing that the District’s production is incomplete. If there is any “missing” information, the plaintiffs are entitled to it. T he complete database and all the information the District used to prepare its Discrepancy Reports are clearly relevant under Rule 26(b)(1) and responsive to plaintiffs’ prior document requests.19 See Pls.’ Mot. to Compel 10–13 (listing three document requests quoted in this Opinion supra). If there is missing data, the District has not made any showing that producing it would be unduly expensive or burdensome under Rule 26(b)(2)(C)(iii). It has made no showing that the information could come from a more convenient or less expensive source under Rule 26(b)(2)(C)(i). T o the extent there are additional unproduced records, producing them would not be “unreasonably cumulative or duplicative.” F .R.C.P. 26(b)(2)(C)(i). The District may not produce some, but not all, of the data and claim that plaintiffs have everything they need. The plaintiffs are entitled to all the tools needed to critically analyze the District’s Discrepancy Reports and come to their own estimates of overdetentions. See Novelty, Inc. v. Mountain View Marketing, Inc., 265 F .R.D. 370, 378 ( S.D. Ind. 2009) (“Producing only those documents that are deemed helpful to the producing party's litigation position—parsing out the
19 Again, subject to the limitation that any information produced must be relevant to alleged overdetentions occurring during the Trial Period.
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bad from the good—is, of course, impermissible.”); see also United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (explaining that liberal discovery provisions of Federal Rules are designed to make “trial less a game of blind man’s bluff and more a fair context with the basic issues and facts disclosed to the fullest practical extent.”). The plaintiffs also explain why their motion to compel comes relatively late, and why they have not previously “had ample opportunity to obtain the information by discovery in the action.” F.R.C.P. 26(b)(2)(C)(ii). The plaintiffs did not notice that records might be missing until they calculated, per Court order, the number of alleged overdetentions for the Trial Period. See Pls.’ Mot. to Compel 2–3. A fter making this “discovery,” the plaintiffs promptly told the District and this Court that they believed records were missing.
To find that a production is incomplete, the Court requires more than a mere “theoretical possibility that more documents exist…to justify additional discovery.” Hubbard, 247 F.R.D. at 29. Instead, the Court must be able to make a “reasonable deduction” from the documents that exist that “other documents may exist or did exist and have been destroyed.” Id. See also Harris, 271 F .R.D. at 370 (“If plaintiffs are speculating that documents responsive to these requests do exist, there must be a reasonable deduction that that is true, and not a mere hunch.”). The Court believes the District when it s ays the plaintiffs were using the incorrect query to determine that there were records missing. Def.’s Opp’n to Pls.’ Mot. to Compel 4–8. As such, the plaintiffs have not—for now—met their burden of proving that there are any missing records to be produced. H owever, the Court will deny the plaintiffs’ Motion to Compel on this issue without prejudice. The plaintiffs were unable to correctly scrutinize the District’s data because the query—key to understanding how the District analyzed its data—has not been produced. As explained supra, the Court will compel the immediate production of the query used during the
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Trial Period to analyze inmate data and generate the Release Discrepancy Database and Discrepancy Reports. If, after using the correct query to analyze the information available, the plaintiffs can show that information is missing, then the plaintiffs may then file a motion to compel. The Court urges the plaintiffs to work diligently and quickly, after receiving the correct query, to determine if any files are missing, so discovery for the liability phase may finally come to an end.
IV. CONCLUSION Both of the District’s motions, [351] and [365], would have been unnecessary had the
parties carefully reviewed this Court’s orders and engaged in discovery in good faith. Both the District and the plaintiffs are to blame. The District asked for answers to interrogatories it should have known were forthcoming. W hen the District received those answers, it moved to strike them—based, in part, on undu e surprise. The District failed on several opportunities to designate a rebuttal expert, but now demands leave almost two years after receiving the initial report from plaintiffs’ experts. The plaintiffs, while asking the Court to compel a narrative response to one of their interrogatories, felt they did not need to do the same when answering a nearly identical interrogatory from the District.
This case presents serious issues. T his Court has already found that the District wrongfully overdetained hundreds of inmates. Barnes, 793 F. Supp. 2d at 286. Hundreds more alleged overdetentions are now in dispute. If true, this represents a considerable civil rights violation. The Court understands that the attorneys owe a duty to be zealous advocates for their clients, but this does not excuse gaming discovery simply to gain a tactical advantage. It does not excuse sloppy, late, or repetitive filings. It does not excuse failing to examine this Court’s prior orders, and not asking for clarification if key points are ambiguous. Each party has reason
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to be annoyed and frustrated at the other, and this comes out in their filings. But the Court urges the parties to remember the importance of this case. T he plaintiffs’ counsel does not simply represent the named parties, but hundreds who may have had their civil rights violated. T he defendant’s counsel represents the District of Columbia, and by extension its over 600,000 citizens.20 Both parties owe a duty to litigate this case fairly, honestly, and carefully. The Court knows that each party is capable of such, and asks them to focus on the real issues, instead of how many misspellings are in the other party’s filing.21
For the reasons stated above, the Court denies in part and grants in part the District’s Motion to Compel [ECF No. 351]. The District has already received a satisfactory response to Interrogatories 1 a nd 2 and thus the Court denies the motion as to those interrogatories. T he plaintiffs refused to answer Interrogatory 13 because the District had not answered a virtually identical question the way plaintiffs wanted. The Court grants the District’s motion as to Interrogatory 13 and orders the plaintiffs to answer the question in the same manner the Court had earlier directed the District. See Barnes, 2012 WL 3105218, *4 (granting plaintiffs’ motion to compel against District on virtually identical interrogatory).
The Court denies the District’s Motion to Strike [ECF No. 365]. T he Court finds no reason to strike supplemental expert reports that the Court itself ordered. Motions to Strike are strongly disfavored and require the Court to consider alternatives. T he Court also denies the District’s motion, in the alternative, for an extension of time and leave to designate rebuttal experts [ECF No. 365]. The Court has not found that good cause exists to grant leave to
20 The Census Bureau estimates the population of the District of Columbia, as of July 2011, as 617,996. U.S. Census Bureau, Annual Estimates of the Resident Population for the United States, Regions, States, and P uerto Rico: April 1, 20 10 to July, 1 20 11, 2011 POPULATION ESTIMATES (Dec. 2011), available at http://www.census.gov/popest/data/state/totals/2011/tables/NST-EST2011-01.csv.
21 The Court also asks the parties not to include such careless typos in the first place. 45

designate experts after the close of discovery. The District’s request to reopen discovery for 72 days to allow for the depositions of Dr. Kriegler and Mr. Day is excessive. Instead, the Court reopens discovery for 28 days from this date for the sole purpose of allowing the District to depose Dr. Kriegler and Mr. Day.
The plaintiffs’ Non-Consent and Re-Stated Motion to Compel the Production of the Release Discrepancy Database [ECF No. 362] presents more complicated issues. T he Court’s April 3rd Discovery Opinion required the plaintiffs to revise their expert reports to focus on overdetentions occurring during the “disputed” or “Trial Period.” In doing so, the plaintiffs claim they discovered that the District’s production was incomplete. T he plaintiffs seek complete discovery, including the entire Release Discrepancy Database—what the plaintiffs dub “Alpha.” In responding to the plaintiffs’ motion, the District argued that the plaintiffs used faulty methods to determine that there are “missing” records. Therefore, as long as the plaintiffs’ argument rests on t heir application of the wrong “query,” they cannot meet their burden of showing that “Alpha” exists and has not been produced. In so replying, however, the District betrayed the fact that the District never revealed or produced which “query” the DOC did use to identify potential overdetentions. By discussing the unproduced and undisclosed query in greater detail, the District’s Opposition helped the plaintiffs demonstrate that the District’s production was incomplete and that the District wrongfully withheld production of the query.
Therefore, the Court grants in part and denies in part plaintiffs’ Motion to Compel [362]. The Court compels the District to immediately produce and identify any Lotus Notes query or other search algorithm used by the defendant or defendant’s agent(s) during the Trial Period to analyze JACCS or other inmate data to identify potential overdetentions, or any query otherwise used in connection with generating the Discrepancy Reports and Release Discrepancy Database
46

during the Trial Period. T he Court will not compel the production of the entire Release Discrepancy Database. The Court furthermore denies, without prejudice, plaintiffs’ motion to compel the production of data underlying the District’s Discrepancy reports to the extent such data is different from the version of the Release Discrepancy Database the District has already produced. The plaintiffs cannot, at this time, meet their burden of showing that any records or data is missing; however, after the plaintiffs have had a ch ance to analyze the District’s data using the correct query, they might be able to make such a showing.
A separate Order consistent with this Memorandum Opinion shall issue this date. Originally Signed, Royce C. Lamberth, Chief Judge, September 19, 2012. Amended Pursuant to Rule 60(a). Mem. Op. & Order, Sept. 28, 2012, ECF No. 396. Amended Opinion Signed, Royce C. Lamberth, Chief Judge, September 28, 2012.
47

 
 Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARL A. BARNES DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 278-872,
DERNARD HAWKINS 4214 Benning Road, N.E. Apt 203 Washington, DC 20019 DCDC 281-828
TONEY JAMES MALLOY
4524 Iowa Ave, Apt 6 Washington, DC 20011
DCDC 289-872
DAVID PETERSON
1114 Trinidad Ave N.E. Washington, DC 20002
DCDC 252-552 and
MAURICE WILLIAMS
321 Adams Street NE, #2
Washington, DC 20002 DCDC 197-245
and
RAZINA JONES 1222 Iwid Ave., S.E. Washington, DC 20003

) ) ) ) ) ) ) ) ) ) ) ) )
) )
) ) )
) )
) ) ) ) Civil No. 06-315 (RCL)
)
) )
) ) ) ) ) ) ) )

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 2 of 41

)

On behalf of all others)

similarly situated,

)

)

Plaintiffs

)

)

v.

)

)

GOVERNMENT OF THE DISTRICT OF COLUMBIA)

SERVE: Mayor ANTHONY WILLIAMS)

Or his designee

)

Office of the Secretary

)

Gladys Herring

)

John Wilson Building

)

1350 Pennsylvania Avenue, N.W. )

Washington, D.C. 20004

)

Defendant

)

CLASS ACTION SECOND AMENDED COMPLAINT FOR INDIVIDUAL MONEY DAMAGES AND CLASS INJUNCTIVE RELIEF AND JURY DEMAND
Introduction 1. This is an action brought by each of Carl A. Barnes, Dernard Hawkins, David Peterson, Toney James Malloy and Maurice Williams (the "Overdetention Named Plaintiffs") on his own behalf and on behalf of the class defined below injured (or presently subject to injury) by the Government of the District of Columbia's
2

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 3 of 41
recently revived pattern and practice of allowing its Department of Corrections to overdetain inmates, and by the District's deliberate indifference to the effect of the practice of overdetention on the rights of inmates. To overdetain means holding a detainee or prisoner in a District of Columbia Department of Corrections ("Department of Corrections") facility past midnight of his or her release date, as defined below.
2. This is also an action brought by Carl A. Barnes, David Peterson, Toney James Malloy and Maurice Williams (the "Strip Search Named Plaintiffs") on his own behalf and on behalf of a Strip Search Class of individuals who were injured (or presently subject to injury) by the District's conduct in subjecting them to blanket strip searches and visual body cavity searches (both described below) after they were returned to a Department of Corrections facility after a judicial determination that there was no longer a basis for their detention, other than to be processed for release, and by District's deliberate indifference to the effect of the practice of blanket strip searches and visual body cavity searches on the rights of inmates.
3

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 4 of 41
3. The Overdetained Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth, Fifth and Eighth Amendments, for injuries suffered by them, because the District overdetained them and other members of the class at a Department of Corrections facility.
4. The Strip Search Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S. C. § 1983, to enforce the Fourth and Fifth Amendments, for injuries suffered by them, because the District subjected them and the class to the blanket strip searches.
Jurisdiction and Venue 5. This Court has jurisdiction over the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs' § 1983 claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). 6. Venue is appropriate in this District. Each of the claims for relief arose in this judicial district.
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Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 5 of 41
Class Action Allegations
7. The Court certified these two classes under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) and certified all named plaintiffs named in the Second Amended Complaint as named plaintiffs in an order dated 3/26/07 (docket # 33). 8. Plaintiffs have moved separately to add Ms. Jones as a named plaintiff for each of the classes.
9. The Overdetained Named Plaintiffs bring this action under Rules 23(a), 23(b) (2) and 23(b)(3), of the Federal Rules of Civil Procedure on behalf of a class consisting of: (a) Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 10. The Strip Search Named Plaintiffs also bring this action under Rules 23(a), 23(b) (2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each member of the class who was, or in the future will be, from September 1,2005,
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forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jailor CTF or other District facility, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/ or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained. 11. Certification of these two classes under Federal Rule of Civil Procedure 23(b)(2) was and remains appropriate, because the
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District of Columbia has a pattern and practice that has uniformly affected all members of both classes, and injunctive relief against the District will benefit each and every plaintiff and class member. Although the District had agreed to stop these practices, and indeed had done so in the context of the settlement of Bynum v. District of Columbia, Civil Action No. 02-956 (RCL), the final approval order did not require that the practices stop. These practices continued after the Bynum Settlement making it clear that a court order is necessary to ensure the rights of the class members.
12. The classes are entitled to injunctive relief, for example, setting up an independent monitor to supervise the Department of Corrections' inmate management system to ensure that all inmates are released on or before their release dates, and other relief as specified below. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) was and remains also appropriate, in that common questions of law
and fact predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
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13. Regarding the Overdetained Named Plaintiffs, and members of the Overdetention Class, there are no individual questions on the issue of liability other than whether an individual has been overdetained, and the answer to that question can be determined by ministerial inspection of the Department of Corrections' records. 14. Computer records are available for inspection on the overdetentions. 15. Regarding the Strip Search Named Plaintiffs, and members of the Strip Search Class, there are no individual questions on the issue of liability, because neither the DC Jail nor CTF keeps records of the searches and therefore neither the DC Jail nor CTF can show that any of the searches were conducted based on an individual determination of reasonable suspicion. 16. Among the questions of law and fact common to the classes are:
a) whether the Constitution provides a maximum length of time measured in hours beyond which the District cannot hold a person to perform
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administrative tasks incident to release before releasing that person from jail;
b) whether the District has exceeded that maximum for each class member;
c) whether the District has a pattern and practice of holding detainees and inmates past their release dates;
d) whether the District has a pattern and practice of being deliberately indifferent to the rights of detainees and inmates by holding them past their release dates;
e) whether the District's acts as alleged herein violate the Constitution of the United States by holding detainees and inmates past their release dates;
f) whether the District has a policy of and practice of subjecting persons to blanket strip searches and visual body cavity searches after they have become entitled to release;
g) whether such policy, if found to exist, violates the Fourth and/or Fifth Amendments;
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h) whether plaintiffs and the members of the Overdetention Class and the Strip Search Class and future members are entitled to equitable relief, and, if so, what is the nature of that relief;
i. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members' damages except those who opt out.
17. Each of the Overdetention Class and the Strip Search Class is so numerous that joinder of all members is impracticable. The exact number of Overdetention Class and Strip Search Class members numbers in the thousands. 18. The Overdetained Named Plaintiffs' claims are typical of the claims of the other members of the class, as plaintiffs and all other members of the class were injured by exactly the same means, that is, by the overdetentions. 19. The Strip Search Named Plaintiffs' claims are typical of the claims of the other members of the Strip Search Class, as the Strip Search Named Plaintiffs and all other members of the Strip Search
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Class were injured by exactly the same means, that is, by the blanket strip searches. 20. The Overdetained Named Plaintiffs and the Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the Overdetention Class and Strip Search Class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/ or complex federal prisoner rights litigation. 21. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class or Strip Search Class.
Parties 22. Plaintiff Carl A. Barnes was currently being held past his Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody. 23. Plaintiff Dernard Hawkins was currently being held past his Release Date at the DC Jail as of the filing of this action.
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24. Plaintiff David Peterson was currently being held past his Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody. 25. Plaintiff Maurice Williams was currently held in the DC Jail as of the filing of this action on a detention order in a traffic case that had been vacated on 2/8/06. He was scheduled for a hearing on a show cause order for a probation violation on a misdemeanor case issued by a District of Columbia Superior Court Judge after which he was likely to be further overdetained and subjected to an illegal court return strip search. 26. Plaintiff Toney James Malloy is an inmate in the custody of the Department of Corrections who as of the time of the filing of the first amended complaint was being held in the District of Columbia Superior Court lock up for return to the DC Jailor the holding facility at DC General after being sentenced to probation with no confinement with no other charges on which he was being held, and at that time had no warrants, detainers or other basis for detention.
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27. Plaintiff Razina Jones was an inmate in the DC Jail who was ordered
released at Superior Court on 2/28/06 and who was sUbjected to an illegal strip search on 2/28/06 upon reentry to the DC Jail and released the next morning.
28. The District Government of the District of Columbia (hereinafter the District of Columbia or the District) is a municipal corporation capable of being sued under D.C. Code § 1-102.
FACTUAL ALLEGATIONS Components of the Department of Corrections 29. The District of Columbia Department of Corrections holds prisoners committed by the District of Columbia Superior Court, the District of Columbia District Court, and other agencies, in the Central Detention Facility ("DC Jail"), the Correctional Treatment Facility ("CTF") and at various halfway houses located in the District of Columbia. 30. Most prisoners held in the custody of the Department of Corrections are either pre-trial detainees, misdemeanants serving sentences, or parole and probation violators.
The Inmate Management System
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31. The records office located at the DC Jail ("Records Office") is responsible for administering and maintaining the records, including the judgment and commitment files, of all persons housed at the DC Jail, CTF and the halfway houses. 32. The Records Office is also responsible for ensuring that all persons housed at the DC Jail, CTF and the halfway houses are released according to their Release Dates specified in their dispositions and court orders. 33. The District of Columbia Superior Court has a policy pursuant to which an in-custody-defendant or a defendant ordered into custody may not leave the courtroom without an order (commitment order or release order) for each case on which he appeared.
The Overdetention Problem 34. "Overdetain" means holding a detainee or prisoner in Department of Corrections' custody past the person's release date. 35. "Release Date" for each detainee or inmate is the day on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
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36. "Exit Date" for each detainee or inmate is the day on which the person is actually released from the custody of the District of Columbia Department of Corrections. 37. The Department of Corrections had a long and documented history of overdetaining detainees and inmates past their release dates. 38. The Department of Corrections, in response to a class action lawsuit, for a brief period in 2005 ameliorated the overdetention problem. 39. However, since at least November 2005, the Department of Corrections again begun overdetaining large numbers of inmates. 40. The rate of overdetentions, after dipping in early 2005, spiked in late 2005 and by January 2006 had exceeded the over detention rate prevailing in late 2004..
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The Court Return Strip Search Problem 41. Prior to late 2000 or early 2001, the Department of Corrections followed a practice under which most inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jailor CTF for processing for release rather than being released from the courthouse. 42. In late 2000 or early 2001, the Department of Corrections instituted a policy under which every inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jailor CTF for processing for release rather than being released from the courthouse.
43. From the beginning of the class period (9/1/05) until July 2008 virtually all court returns were released from MHU (the Medical Holding Unit ("MHU") or is a holding facility at the old DC General Hospital defined below) or the DC Jail.
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44. As a result, because the DC Jail and CTF had then and now policies of subjecting all inmates (new intakes and court returns) to blanket strip searches upon entering the facilities, all court returns entitled to release sent back to the DC Jail and CTF after their court appearances suffered blanket strip searches. 45. The strip searches ofinmates entering the DC Jail and CTF described herein are strip searches of inmates in groups of several inmates at once. 46. In 2005 the Department of Corrections instituted a program (which was not reduced to a program statement or post order) of diverting some in-custody defendants ordered released or otherwise entitled to release from the Superior Court of the District of Columbia to a holding facility on the grounds of DC General Hospital where they would not be subject to a strip search, absent individualized suspicion, while the record review for detainers and warrants and property retrieval was conducted prior to release, providing the release could be effected before 10:00 p.m.
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47. All other court returns (including court returns entitled to release) were returned to the DC Jailor CTF and sUbjected to blanket strip searches.
48. In 2008 the DOC began releasing some court returns from the Superior Court but DOC has continued to release some court returns from MHU and the DC Jail. 49. The cause of the over-detentions and illegal post release strip searches of court returns entitled to release was and remains the District of Columbia's maintaining a release system in the DOC which in toto simply delays all releases until the system, in its sweet time, and with the resources the government of the District of Columbia chooses provide it, is ready to make releases of inmates from DOC facilities 50. The system attaches weight to the governmental interests involved in releases but disregarded the interests of the inmate in a prompt release.
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51. The over-detention problem and resultant post release strip search problem remained especially severe in the first year after the termination of the Bynum class period because of the problems with the DOC's release system including not enough time to release in-custody defendants returning from court appearances because of the 10 pm cutoff imposed by D.C. Code § 2421 1.2 (b)(6), failing to adequately staff the Records Office and other positions involved in the release process, re-committing court returns back into the DC Jailor CTF without regard to the disposition of their court cases, back-log, and awaiting juvenile releases, losing track of inmates going to court and readmitting them to the DC Jailor CTF and subjecting them to blanket strip searches without court orders and thus without knowing whether they were ordered continued held or ordered released (causing over detentions and post release strip searches), not making in-court releases until July 2008, having no program for identifying at court persons who needed meds, relying on a sneaker network to deliver court orders from the courts to the Records Office staff, staff not following the Records Office manual, relyingon paper records to process commitments and releases (instead of JACCS, the DOC's computerized
inmate population accounting system) and the deliberate indifference of the acting warden Patricia Britton and the acting director Elwood York and the resignation of competent managers from the Records Office and the failure to replace them (or in some cases a combination of
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these factors). The DOC never effectively addressed these problems in the release process despite the Bynum case and promises of reform. 52. The Department of Corrections, in response to a class action lawsuit, agreed to institute reforms to ameliorate the over-detention problem and the strip search problem. Bynum v. District of Columbia, 412 F.Supp.2d 73, 83 (D.D.C. 2006)(final approval order). 53. However, the over-detentions and illegal strip searches continued even after the Bynum class period ended on 8/31/05 and continued practically unabated throughout the first 18 months of the class period. 54. Plaintiffs' statistical analysis shows that in six of the first 12 months of the class period, over 50 percent of court returns entitled to release were potentially over-detained, and the rate was almost always above 30 percent through March 2007. (A strong correlation exists between the number of potential over detentions and the number of actual over detentions.) 55. Additionally, Plaintiffs reviewed the raw data underlying the District's analysis of the approximately 6,000 releases identified by the District's script or query (computer code that extracts data from a larger data set) for identifying potential over detentions and for the first year after the Bynum class period/ first year of this class period Plaintiffs identified 2,050 actual over-detentions, 1,280 on-time releases, and 2,619 releases in which the overdetention status could not be determined based on the data.
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56. The District's analysis identified over 1,200 inmates held past their Release Dates during the first year of this class period alone which the District attributed solely or in part to the 10:00 pm cut-off rule. 57. The numbers of overdetentions and overdetention hours in the first year of the Barnes class period is at least 2,547 and 74,411, respectively.
58. The number of these over detained court returns entitled to release subjected to post release strip searches in the first-year of the class period is at least 2,351.
59. While persons entitled to release because of completion of sentence had a consistently lower potential overdetention rate than court returns entitled to release, persons entitled to release because of completion of sentence also exhibited relatively higher potential overdetention rates during the first year of the Barnes class period in comparison to more recent years. Six of the first 12 months show a potential overdetention rate above 15 percent, whereas this rate is almost always at or below 10 percent beginning in November 2006. 60. The number of overdetentions for the whole overdetention class period to date is at least between 4,432 and 4,540, and that the number of overdetention hours for the whole overdetention class period to date is at least between 162,515 and 252120.
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61. DOC officials and City Council Members and the 62. Mayor were aware of these problems and the over detention and post release strip search problems, but remained deliberately indifferent to the risk of over detentions and post release strip searches and acquiesced in the current overdetention and strip search problems. As part of the Bynum Settlement Agreement the DOC
retained $3,000,000 for construction of a stand-alone inmate processing center ("ICP") 63. The IPC was intended to provide adequate processing facilities for intakes, releases, and associated records processing for inmates in DOC facilities. 64. The IPC has not been constructed as of the data of filing of this amended complaint even though every year as part of its agency review the DOC informs the City Council that the project has not been funded and remains un-built. 65. The DOC did not make courthouse releases (that is, identifying and releasing court returns entitled to release directly from the Superior Court) from 2001 to 2008. 66. The Government of the District of Columbia has known based on analyses provided by Bynum class counsel and reports of the courthouse release system employed in LA County that courthouse releases would speed releases and reduce erroneous releases and over detentions.
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67. Bynum class counsel testified on these topics in November 2002 before the District of Columbia City Council and that courthouse releases would speed releases and reduce erroneous releases and over detentions. 68. Bynum class counsel prepared a courthouse release package and in about 2004 sent it and the policies and procedures the LA County Sheriffs Department formulated for making courthouse releases to all stake holders including opposing counsel in the Bynum case. 69. The DOC finally began making some courthouse releases from the Superior Court in July 2008. 70. For example, instead of devising a system for transmitting dispositions directly from the Superior Court judicial officers who made them to DOC Records Office staff the District has for years relied on the Superior Court Marshal to transmit paper orders from courtrooms at the Superior Court and the District Court to the Records Office or other DOC staff, even when the District knew this system causes delays in release of inmates. 71. The District did not even participate in an analysis of the "sneaker
network" system of delivering court orders and other paperwork for court
returns until late 2007. 72. The District did not even make substantive additions to Records Office staff until late 2007 even though the DOC has known for years that the Records Office was understaffed to the point it could not promptly and reliably process commitments and releases.
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Carl A. Barnes' Overdetention by the DC Jail 73. On or about 11/17/06 Plaintiff Carl A. Barnes was committed to the DC Jail. 74. Plaintiff Barnes' Release Date was 2/15/06. 75. Plaintiff Barnes was currently being overdetained in the DC J ail as of the filing of this action.
76. Carl Barnes was released from the DC Jail on 2/21/09.
77. Plaintiff Barnes has suffered damages as a result of the over detention.
Dernard Hawkins' Overdetention by the DC Jail 78. On or about 2/15/06 Plaintiff Dernard Hawkins was committed to the DC Jail. 79. Plaintiff Dernard Hawkins' Release Date was on or about 2/16/06. 80. Plaintiff Dernard Hawkins was currently being overdetained at the DC Jail as of the filing of this action.
81. Plaintiff Dernard Hawkins was released after his Release Date on 2/22/06.
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82. Plaintiff Dernard Hawkins has suffered damages as a result of the overdetention.
Plaintiff David Peterson's Overdetention by the DC Jail 83. On or about 2/13/06 Plaintiff David Peterson was committed to the DC Jail. 84. Plaintiff Peterson's Release Date was 2/20/06. 85. But Plaintiff David Peterson was not released on 2/20/06 even though the Department of Corrections lacked a basis to continue detaining him. 86. Plaintiff Peterson's was currently being overdetained in the DC J ail as of the filing of this action.
87. David Peterson was released on 2/24/06.
88. Plaintiff Peterson has suffered damages as a result of the overdetention.
Plaintiff Razina Jones' Over-detention by the DC Jail 89. On or about 2/25/06 Plaintiff Razina Jones was committed to the DC Jail. 90. Razina J ones was entitled to release on 2/28/06 because a judge of the Superior Court ordered her released at a court hearing at Superior Court and she had no other cases, warrants or detainers to hold her.
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91. Instead of being released at Superior Court, Razina Jones was returned to DC Jail on 2/28/06, 92. She was not released from DC Jail until the morning of 3/ 1/06 because there was not enough time to release her before the 10 pm cutoff after her court appearance on 2/28/06. 93. Plaintiff Jones has suffered damages as a result of the over-detention.
Plaintiff Carl A. Barnes's Strip Search 94. On 2/15/06 Plaintiff Carl A. Barnes was taken to the Superior Court and the Superior Court judge sentenced him to time served. 95. Plaintiff Carl A. Barnes was entitled to release on 2/15/05. 96. But, instead of being released or diverted to the holding facility at DC General on 2/15/06, Plaintiff Carl A. Barnes was returned to the DC Jail's general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 97. Plaintiff Barnes has suffered damages as a result of the post release strip search.
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Plaintiff David Peterson's Strip Search 98. On 2/21/06 Plaintiff David Peterson was again taken to the Superior Court and the Superior Court judge ordered his immediate release. 99. On 2/21/06 Plaintiff David Peterson was diverted to the holding facility at DC General because the judge in his case had previously ordered that he be released on 2/20/06 and again on 2/21/06 ordered his release. 100. Plaintiff David Peterson was entitled to release on 2/20/05. 101. But, instead of being released from the holding facility at DC General on 2/21/06, Plaintiff David Peterson was returned to the DC Jail's general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 102. The guards at the DC Jail sUbjected Mr. Peterson to a post release strip search in front of about 5 guards and 75 other inmates.
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103. Plaintiff Peterson has suffered damages as a result of the strip search.
Dernard Hawkins' post release strip search at the DC Jail 104. On or about 2/15/06 Plaintiff Dernard Hawkins was taken to the Superior Court for a hearing on a bench warrant issued by a Superior Court judge. 105. The Court quashed the warrant and vacated the show cause hearing at the appearance. 106. However, instead of being released from the Superior Court courthouse or diverted to the holding facility at DC General on 2/ 15/06, Plaintiff Dernard Hawkins was taken to the DC Jail and committed to the DC Jail even though he had no other pending cases, no warrants or no detainers blocking his release, and in front of two guards and 7 other inmates subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 107. Plaintiff Hawkins has suffered damages as a result of the post release strip search.
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Plaintiff Maurice Williams' post release strip searches at the DC Jail 108. Plaintiff Maurice Williams at the time the First Amended Complaint was filed (2/24/06) was held in the DC Jail on a traffic hold that had been vacated 2/8/06. He was the subject of a show cause order for probation violation in a misdemeanor case issued by a District of Columbia Superior Court (but he was not subject to a hold in the misdemeanor probation case and the Records Office did not show him as being held in the misdemeanor probation case), and he had a hearing scheduled for 2/27/ 06 in the misdemeanor probation case, after which he was likely to be overdetained and subjected to an illegal court return strip search. The judge in the misdemeanor probation case issued a release order at the 2/27/06 hearing (even though there was no hold in that case) but the DC Jail continued to hold him on the traffic case (even though the traffic hold had been vacated 2/8/06) until 3/1/06 even though the Superior Court records showed that the traffic hold had been discharged on 2/8/06. Pursuant to the custom of overdetentions and the policy of strip searches Mr. Williams was overdetained for
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23 days and subjected to an illegal strip search after judges had ordered his release. 109. The post release strip searches of Mr. Williams were conducted in front of several guards and many other inmates. 110. Plaintiff Williams has suffered damages as a result of the post release strip searches.
Plaintiff Toney James Malloy' post release strip search at the DC Jail
111. Plaintiff Toney James Malloy was an inmate in the custody of the Department of Corrections who as of the time of the filing of the second amended complaint being held in the District of Columbia Superior Court lock up after being sentenced to probation with no confinement with no other charges on which he was being held, no warrants, detainers or other basis for detention. 112. Pursuant to the policy of the District of Columbia Department of Corrections, Plaintiff Toney James Malloy, instead of being released from the District of Columbia Superior Court courthouse, was returned to a Department of Corrections facility for outprocessIng.
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113. Pursuant to a practice and custom of the District of Columbia Department of Corrections known to policymakers, Plaintiff Toney James Malloy was subjected to a suspicionless strip search in front of guards and other inmates and overdetained before being released. On 2/24/06, his Release Date, Plaintiff Toney James Malloy was subjected to a blanket strip search in the DC Jail after his return to from court as a condition of entry into the DC Jail in front of two guards and about 30 other inmates. 114. Plaintiff Malloy has suffered damages as a result of the post release strip search.
Plaintiff Razina Jones' post release strip search at the DC Jail 115. Razina J ones was entitled to release on 2/28/06 because a judge of the Superior Court ordered her released at a court hearing at Superior Court and she had no other cases, warrants or detainers to hold her. 116. Instead of being released at Superior Court, Razina Jones was returned to DC Jail on 2/28/06,
117. Upon her return to the DC Jail Plaintiff Jones was subjected to a
suspicion-less post release strip search in the female Release and Discharge Processing area.
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118. Plaintiff Jones has suffered damages as a result of the post release strip search.
SUBSTANTIVE ALLEGATIONS Count 1
§ 1983 Deliberate Indifference Liability of the District for the Constitutional Violations of its Employees
119. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint. 120. District of Columbia administrators, policy makers, supervisors and employees caused the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and unreasonable strip searches of the Strip Search Named Plaintiffs and all other class members and Strip Search Class members by deliberate indifference to the risk of constitutional injury of overdetention in administering records relating to inmates' detention and release, and maintaining and acquiescing in a policy and practice of strip searching certain inmates.
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12l. Overdetaining any person violates that person's Fourth and Fifth and Eighth Amendment rights. 122. Unreasonably strip searching an inmate violates his Fourth and Fifth Amendment rights. 123. District of Columbia employees continue in such conduct up to and including the present. 124. At all relevant times such District of Columbia employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the District of Columbia, and such District of Columbia employees were acting in furtherance of the business of the District of Columbia. 125. The District is therefore liable by virtue of its deliberate indifference under 42 U.S.C. § 1983 for constitutional injuries to the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and all other class members and Strip Search Class members caused by the conduct of such employees. 126. Accordingly, all Named Plaintiffs and class members are entitled to damages to be determined at trial, and the Overdetention and Strip Search Classes are entitled to injunctive relief.
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Count 2 § 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth, Fifth and Eighth Amendment
Rights of Overdetained Named Plaintiffs and Class Members 127. The Overdetained Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 128. Beginning approximately in late December 2005, the District of Columbia, and its agents and employees, have had a custom of detaining people past their release dates, thereby causing the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and all other class members. 129. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Overdetained Named Plaintiffs and all other class members' Fourth, Fifth and Eighth Amendment rights. 130. Accordingly, all Overdetention Named Plaintiffs and Overdetention Class members are entitled to damages to be determined at trial, and the Overdetention Class is entitled to injunctive relief.
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Count 3 § 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth and Fifth Amendment Rights of Strip Search Named Plaintiffs and Strip Search Class Members for
Illegal Strip Searches 131. The Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 132. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Strip Search Named Plaintiffs and the Strip Search Class members' Fourth and Fifth Amendment rights. 133. Accordingly, Named Plaintiffs Barnes, Malloy and Petersen and the Strip Search Class members are entitled to damages to be determined at trial, and the Strip Search Class is entitled to injunctive relief.
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IRREPARABLE INJURY AND INJUNCTIVE RELIEF 134. The District is overdetaining members of the plaintiff Overdetention Class and unreasonably subjecting members of the Strip Search Class to strip searches and visual body cavity searches, which irreparably harms them, even if they are later able to recover compensatory damages. 135. The District's overdetaining members of the plaintiff Overdetention Class and performing illegally strip searches of the plaintiff Strip Search Class has irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff Overdetention Class and Strip Search Class, thus making declaratory and injunctive relief necessary.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief: 1. grant a jury trial on all claims so triable; 2. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule
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Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 37 of 41
23(b)(3) and certifying the Overdetained Named Plaintiffs as the proper representative of the class consisting of:
(a) Each person who has been, is, or will be incarcerated in any District of Columbia Department of Corrections facility from 9/1/05 up to and until the date this case is terminated; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 3. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b) (2) and 23(b)(3) and certifying the Strip Search Named Plaintiffs as the proper representative of the Strip Search Class consisting of each member of the class who was, or in the future will be, from 9/1/05, forward:
(i) was or will be in custody of the Department of Corrections;
(ii) was or will be taken to court from a Department of Corrections facility;
37

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 38 of 41
(iii) was or will be ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release;
(iv) was not or will not be the subject of any other pending case or cases which imposed any condition of release other than personal recognizance;
(v) was not or will not be the subject of any detainer or warrant;
(vi) was or will be returned to the DC Jailor CTF from court, to be processed out of Department of Corrections custody; and
(vii) was or will be subjected to a strip search and/ or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons;
38

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 39 of 41
(viii) before being released, regardless of whether he was or will be overdetained. 4. declare that the Districts' acts alleged above violate the Fourth, Fifth and Eighth Amendments to the Constitution by overdetaining and illegally strip searching plaintiffs as alleged herein; 5. preliminarily and permanently enjoin the Districts from pursuing the course of conduct complained of herein; 6. preliminarily and permanently enjoin the Districts from pursuing settlement directly with any member of the putative Overdetention Class and Strip Search Class described herein unless that person is represented by counsel; 7. award all named plaintiffs compensatory and consequential damages in an amount to be determined at trial; 8. appoint an independent monitor to supervise the Records Office, and report to the court, to ensure that all inmates are released on or before their Release Dates, at the expense of Defendants;
39

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 40 of 41
9. appoint an independent monitor to supervise the R&D Offices, and report to the court, to ensure that all detainees and inmates who have been ordered released are not strip searched or full-body cavity searched;
10. award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988; and
11. grant such other relief as this Court deems just and proper.
40

Case 1:06-cv-00315-RCL Document 329 Filed 01/20/11 Page 41 of 41
Respectfully submitted,
__/sig/_ _ _ _ _ _ _ __ WILLIAM CLAIBORNE D.C. Bar # 446579 71 7 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
JURY DEMAND Plaintiffs demand a jury of six as to all claims so triable.
___ /sig/ _ _ _ _ _ _ _ __ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and the class
41

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 1 of 45

.uNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARL A. BARNES DC Jail 1903 E Street, SE Washington, DC 20021 DCDC 278-872,

DERNARD HAWKINS

4214 Benning Road. N.E.

Apt 203

Washington, DC 20019

DC Jail

1903 E Street, SE

Washington, DC 20021

DCDC 281-828

)

)

TONEY JAMES MALLOY

)

4524 Iowa Ave, &Apt 6

)

Washington, DC 20011

)

pC Jail

)

1903 E Street, SE

Vlashington, DC 20021

DCDC 289-872

DAVID PETERSON
1 114 Tnnidad Ave N.E. Washmgton. DC 20002
pc Jail
1903 E Street, SE Washington, DC 20021 DCDC 252-552
and

MAURICE WILLIAMS
321 Adams Street NE. #2

Civil No. 06-315 (RCL)

~ [ Formatted: Font: Bookman Old Style
( Formatted: Font: Bookman Old Style ( Formatted: Font· Bookman Old Style

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 2 of 45

pc Jail
1903 E Street, SE Washington, DC 200Q2-lDCDC 197-245
and

Next event: None scheduled

RAZINA JONES 1222 Iwid Ave., S.E. Washington. DC 20003

.

On behalf of all others

similarly situated,

)

Plaintiffs

)

)

v.

)

) GOVERNMENT OF THE DISTRICT OF COLUMBIA)

SERVE: Mayor ANTHONY WILLIAMS)

Or his designee

)

Office of the Secretary

)

Gladys Herring

John Wilson Building

1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Defendant)

[ Formatted: Font: Bookman Old Style

]

( Formatted: Font: Bookman Old Style

CLASS ACTION SECOND AMENDED COMPLAINT FOR INDIVIDUAL MONEY DAMAGES AND CLASS INJUNCTIVE RELIEF AND JURY DEMAND
Introduction

2

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 3 of 45
1. This is an action brought by each of Carl A. Barnes, Dernard Hawkins, David Peterson, Toney James Malloy and Maurice Williams (the "Overdetention Named Plaintiffs") on his own behalf and on behalf of the class defined below injured (or presently subject to injury) by the Government of the District of Columbia's recently revived pattern and practice of allowing its Department of Corrections to overdetain inmates, and by the District's deliberate indifference to the effect of the practice of overdetention on the rights of inmates. To overdetain means holding a detainee or prisoner in a District of Columbia Department of Corrections ("Department of Corrections") facility past midnight of his or her release date, as defined below.
2. This is also an action brought by Carl A. Barnes, David Peterson, Toney James Malloy and Maurice Williams (the "Strip Search Named Plaintiffs") on his own behalf and on behalf of a Strip Search Class of individuals who were injured (or presently subject to injury) by the District's conduct in subjecting them to blanket strip searches and visual body cavity searches (both described below) after they were returned to a Department of Corrections
3

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 4 of 45
facility after a judicial determination that there was no longer a basis for their detention, other than to be processed for release, and by District's deliberate indifference to the effect of the practice of blanket strip searches and visual body cavity searches on the rights of inmates.
3. The Overdetained Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871,42 U.S.C. § 1983, to enforce the Fourth, Fifth and Eighth Amendments, for injuries suffered by them, because the District overdetained them and other members of the class at a Department of Corrections facility.
4. The Strip Search Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth and Fifth Amendments, for injuries suffered by them, because the District subjected them and the class to the blanket strip searches.
Jurisdiction and Venue 5. This Court has jurisdiction over the Overdetained Named
4

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 5 of 45
Plaintiffs and Strip Search Named Plaintiffs' § 1983 claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3).
6. Venue is appropriate in this District. Each of the claims for relief arose in this judicial district.
5

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 6 of 45

Class Action Allegations
7. The Court certified these two classes under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) and certified all named plaintiffs named in the Second Amended Complaint as named plaintiffs in an order dated 3(26(07 (docket # 33). 8. Plaintiffs have moved separateh" to add Ms. Jones as a named plaintiff for each of the classes.
-. _'_',},he Overdetained Named Plaintiffs bring this action under Rules 23(a), 23(b) (2) and 23(b)(3), of the Federal Rules of Civil Procedure on behalf of a class consisting of: (a) Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. ~L:LThe Strip Search Named Plaintiffs also bring this action under Rules 23(a), 23(b) (2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each member of the class who was, or in the future will be, from September 1, 2005,
6

Formatted: WIdow/Orphan control, Keep wIth next, Tab stops' Not at 0" + 1" + 1 5" + 2" + 2 5" + 3" + 3.5" + 4" + 4 5" + 5" + 5 5"
( Formatted: Font: Bookman Old Style

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 7 of 45
forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jail or CTF or other District facility, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained.
Certification of these two classes under Federal Rule of Civil Procedure 23(b)(2) was and isremains appropriate, because the
7

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 8 of 45

District of Columbia has a pattern and practice that has uniformly affected all members of both classes, and injunctive relief against the District will benefit each and every plaintiff and class member. Although the District had agreed to stop these practices, and indeed had done so in the context of the settlement of Bynum v. District of Columbia, Civil Action No. 02-956 (RCL), the final approval order did not require that the practices stop. These practices have recently been revived,continued after the Bvnum Settlement making it clear that a court order is necessary to ensure the rights of the class members.
W:--The classes are entitled to injunctive relief, for example, setting up an independent monitor to supervise the Department of Corrections' inmate management system to ensure that all inmates are released on or before their release dates, and other relief as specified below.

IFormatted: Indent: First Ime. 05", Space
Before. Auto, After' Auto

~+GA-:--Certification of a class under Federal Rule of Civil Procedure'
23(b)(3) yvas and remains*, also appropriate, in that common questions of
law and fact predominate over any individual questions, and a class action is

Formatted: Indent. First Ime: OS', Numbered + Level: 1 + Numbering Style: 1, 2, 3, + Start at: 1 + Alignment: Left + Aligned at: 0" + Tab after: 0.5" + Indent at: 0", Widow/Orphan control
Formatted: Font' Bookman Old Style

8

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 9 of 45

supenor for the fair and efficient adjudication of this controversy as detailed below.
: :,~__""._Regarding the Overdetained Named Plaintiffs, and members of the Overdetention Class, there are no individual questions on the issue of liability other than whether an individual has been overdetained, and the answer to that question can be determined by ministerial inspection of the Department of Corrections' records.
.,."___..~_Computer records are available for inspection on the overdetentions .
..:.....:..~.__"Regarding the Strip Search Named Plaintiffs, and members of the Strip Search Class, there are no individual questions on the issue of liability, because neither the DC Jail nor CTF keeps records of the searches and therefore neither the DC Jail nor CTF can show that any of the searches were conducted based on an individual determination of reasonable suspicion.
;~ :2c__.Among the questions of law and fact common to the classes are:

( Formatted: Font. Bookman Old Style

9

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 10 of 45
a) whether the Constitution provides a maximum length of time measured in hours beyond which the District cannot hold a person to perform administrative tasks incident to release before releasing that person from jail;
b) whether the District has exceeded that maximum for each class member;
c) whether the District has a pattern and practice of holding detainees and inmates past their release dates;
d) whether the District has a pattern and practice of being deliberately indifferent to the rights of detainees and inmates by holding them past their release dates;
e) whether the District's acts as alleged herein violate the Constitution of the United States by holding detainees and inmates past their release dates;
f) whether the District has a policy of and practice of subjecting persons to blanket strip searches and visual body cavity searches after they have become entitled to release;
JO

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 11 of 45

g) whether such policy, if found to exist, violates the Fourth and/or Fifth Amendments;
h) whether plaintiffs and the members of the Overdetention Class and the Strip Search Class and future members are entitled to equitable relief, and, if so, what is the nature of that relief;
i. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members' damages except those who opt out,.
;-c' --' '/""___,_"",Each of the Overdetention Class and the Strip Search Class is so numerous that joinder of all members is impracticable. The exact number of Overdetention Class and Strip Search Class members is unknown to plaintiffs at this time, but is likely to consist of at least one hundred people, and likely substantially more than thatnumbers in the thousands. :,(,~:::_,__""The Overdetained Named Plaintiffs' claims are typical of the claims of the other members of the class, as plaintiffs and a1l

[ Formatted: Font Bookman Old Style ( Formatted: Font Bookman Old Style

11

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 12 of 45
other members of the class were injured by exactly the same means, that is, by the overdetentions. ":-, '~),_._The Strip Search Named Plaintiffs' claims are typical of the claims of the other members of the Strip Search Class, as the Strip Search Named Plaintiffs and all other members of the Strip Search Class were injured by exactly the same means, that is, by the blanket strip searches.
:·':,;£iL:...._._.__The Overdetained Named Plaintiffs and the Strip Search
Named Plaintiffs will fairly and adequately protect the interests of the members of the Overdetention Class and Strip Search Class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/ or complex federal prisoner rights litigation.
~,_........... _The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class or Strip Search Class.
12

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 13 of 45
Parties
>~> .~__ Plaintiff Carl A. Barnes was currently being held past his
Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody.
... ~.L:;:.... _~Plaintiff Dernard Hawkins was currently being held past
his Release Date at the DC Jail as of the filing of this action. 'j·:3:-~~._..Plaintiff David Peterson was currently being held past his Release Date at the DC Jail as of the filing of this action and was strip searched without reasonable suspicion after being ordered to be released from custody. ~.~..;=, ....__Plaintiff Maurice Williams was currently held in the DC Jail as of the filing of this action on a detention order in a traffic case that had been vacated on 2/8/06. He was scheduled for a hearing on a show cause order for a probation violation on a misdemeanor case issued by a District of Columbia Superior Court Judge after which he was likely to be further overdetained and subjected to an illegal court return strip search.
13

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 14 of 45

~PlaintiffToney James Malloy is an inmate in the custody of the Department of Corrections who as of the time of the filing of the first amended complaint was being held in the District of Columbia Superior Court lock up for return to the DC Jailor the holding facility at DC General after being sentenced to probation with no confinement with no other charges on which he was being held, and at that time had no warrants, detainers or other basis for detention.
Plaintiff Razina Jones was an inmate in the DC Jail who was ordered released at Superior Court on 2/28/06 and who was subjected to an illegal stnp search on 2/28/06 upon reentry to the DC Jail and released the next morDlng.•
:2>.::':__............__The District Government of the District of Columbia
(hereinafter the District of Columbia or the District) is a municipal corporation capable of being sued under D. C. Code § 1-102.
FACTUAL ALLEGATIONS Components of the Department of Corrections 2(1.::f~~_.~__The District of Columbia Department of Corrections holds prisoners committed by the District of Columbia Superior Court, the District of Columbia District Court, and other agencies,

[ Formatted: Font Bookman Old Style

14

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 15 of 45
in the Central Detention Facility ("DC Jail"), the Correctional Treatment Facility ("CTF") and at various halfway houses located in the District of Columbia. ~'::'~lJ} ~~Most prisoners held in the custody of the Department of Corrections are either pre-trial detainees, misdemeanants serving sentences, or parole and probation violators.
The Inmate Management System ~_;_._~".The records office located at the DC Jail ("Records Office") is responsible for administering and maintaining the records, including the judgment and commitment files, of all persons housed at the DC Jail, CTF and the halfway houses. ;!f,f.::~~:....~ __.The Records Office is also responsible for ensuring that all persons housed at the DC Jail, CTF and the halfway houses are released according to their Release Dates specified in their €ffi:H't ordersdispositions and court orders. ':.(./':::c___The District of Columbia Superior Court enforces has a policy pursuant to which an in-custody-defendant or a defendant ordered into custody may not leave the courtroom without an order
15

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 16 of 45

(commitment order or release order) for each case on which he

appeared.

The Overdetention Problem

,-,-_____"Overdetain" means holding a detainee or prisoner in

Department of Corrections' custody past the person's release date.

"'''-'..._____''Release Date" for each detainee or inmate is the day on

which the person is entitled to be released by court order or the

date on which the basis for his or her detention has otherwise

expired .

. '"'

"Exit Date" for each detainee or inmate is the day on

which the person is actually released from the custody of the

District of Columbia Department of Corrections.

j,4",~7____The Department of Corrections had a long and

documented history of overdetaining detainees and inmates past

their release dates.

":'-::~;;>:""-,.,~,..The Department of Corrections, in response to a class

action lawsuit, instituted reforms thatfor a brief period in 2005

ameliorated and for periods eliminated the overdetention problem.

16

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 17 of 45
"i<i::L__However, in the last fev; Tvveelcs before the filing of this action, and, on information and belief, particularly since at least late DecemberNovember 2005, the Department of Corrections has again begun overdetaining large numbers of inmates. ~:i!,,_",___ ~The rate of overdetentions, after dipping in early 2005, spiked in late 2005 and bv January 2006 had exceeded the over detention rate prevailing in late 2004. problem has been especially severe in the last feTli weeks before the filing of this action because of problems \vith the Department of Corrections' computerised inmate popUlation accounting system and for other reasons.
17

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 18 of 45

The Court Return Strip Search Problem ;':'~ ..':::..2-,---__ Prior to late 2000 or early 2001, the Department of Corrections followed a practice under which most inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jailor CTF for processing for release rather than being released from the courthouse. 42. In late 2000 or early 2001, the Department of Corrections instituted a policy under which every inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jailor CTF for processing for release rather than being released from the courthouse.
43. From the beginning of the class period (9/1/ 05) until July 2008 vIrtually all court returns were released from MHU (the Medical Holdmg Unit ("MHU") or is a holding facility at the old DC General Hospital defined belm"'l or the DC ,Jai1..

( Formatted: Font· Bookman Old Style, 12 pt

18

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 19 of 45

44. As a result. because the DC Jail and CTF had then and now policies of subjecting all inmates (new intakes and court returns) to blanket strip searches upon entering the facilities, all court returns entitled to release sent back to the DC Jail and CTF after their court appearances suffered blanket strip searches. ;;:''-::~~""~_'m" The strip searches of-inmates entering the DC Jail and CTF described herein are strip searches of inmates in groups of several inmates at once. ~In August 2005 the Department of Corrections instituted a program (which was not reduced to a program statement or post order) policy of diverting some in-custody defendants ordered released or otherwise entitled to release from the Superior Court of the District of Columbia to a holding facility on the grounds of DC General Hospital where they would not be subject to a strip search, absent individualized suspicion, while the record review for detainers and warrants and property retrieval was conducted prior to release, providing the release could be effected before 10:00 p.m.

( Formatted: Font: Bookman Old Style

19

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 20 of 45

47. All other court returns (including court returns entitled to release) were returned to the DC Jailor CTF and subjected to blanket strip searches.
In 2008 the DOC began releasing some court returns from the Supenor Court but DOC has continued to release some court returns from MHU and the DC ,Jail...
11. .However, in the last few ',,'1eeks before the filing of this action, and, on information and belief, particularly since late December 2005, the Department of Corrections has been returning some in custody defendants entitled to release from the courthouses to the DC Jailor CTF and subjecting them to strip searches after a judge has ordered their release without a finding of individual reasonable suspicion.
49. The cause of the over-detentions and illegal pos1 release strip searches of court returns entitled to release was and remains the District of Columbia 's maintaining a release svstem in the DOC which in toto simply delays all releases until the system, in its sweet time, and with the resources the government of the DIstrict of Columbia chooses provide it, is ready to make releases of inmates from DOC facilities

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20

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 21 of 45
50. The svstem attaches weIght to the governmental mterests involved in releases but disregarded the interests of the inmate in a prompt release.
21

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 22 of 45

51. The over-detention problem and resultant post release strip search problem remained especlallv severe in the first year after the terminatIOn of the Bynum class period because of the problems with the DOC's release system including not enough tIme to release in-custody defendants returning from court appearances because of the 10 pm cutoff imposed bv D.C. Code § 24211.2(b)(61. failing to adequately staff the Records Office and other positlOns involved in the release process, re-committing court returns back into the DC ,Jailor CTF without regard to the disposition of their court cases. back-log, and awaiting Juvenile releases, losing track of inmates gomg to court and readmitting them to the DC Jailor CTF and subjecting them to blanket strip searches without court orders and thus without knowing whether they were ordered continued held or ordered released (causing over detentions and post release strip searches), not making in-court releases until JulY" 2008, having no program for identifving at court persons who needed meds, relying on a sneaker network to deliver court orders from the courts to the Records Office staff. staff not followmg the Records Office manual, relyingon paper records to process commitments and releases (instead of ,JACCS, the DOC's computerized mmate population accounting system) .and the deliberate indifference of the acting warden Patricia Britton and the acting director Elwood York and the resignation of competent managers from the Records Office and the failure to replace them (or in some cases a combination of

( Formatted: Font: Bookman Old Style [ Formatted: Font: Bookman Old Style

22

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 23 of 45
these factors). The DOC never effectively addressed these problems in the release process despite the Bynum case and promises of reform. 52. The Department of Corrections, in response to a class action lawsuit, agreed to mstitute reforms to ameliorate the over-detention problem and the strip search problem. Bvnum v. District of Columbia, 412 F.Supp.2d 73, 83 (D.D.C. 2006)(final approval order). 53. However, the over-detentions and illegal strip searches continued even after the end of the Bvnum class period ended on 8/31/05 and continued practicallv unabated throughout the first 18 months of the class period. 54. Plaintiffs' statistical analysis shows that ifn six of the first 12 months of the class period, over 50 percent of court returns entitled to release were potentially over-detained, and the rate was almost always above 30 percent through March 2007. (A strong correlation exists between the number of potential over detentions and the number of actual over detentions.) 55. For exumpleAdditionally, Plaintiffs reviewed the raw data underlying the Defendamstrict's analYSIS of the apprmamatelv 6,000 releases identified bv the District's script or quen' (computer code that extracts data from a larger data set) for identifying potential over detentions and for the first year after the Bynum class period! first year of thIS class period Plaintiffs Identified 2,050 actual over-detentions, 1,280 on-time releases, and 2.619 releases in whIch the over-detention status could not be determined based on the data.
23

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 24 of 45

56. The Dlstnct's analYSIS Identified over 1,200 mmates held past their Release Dates during the first year of this class period alone which the District attributed solely or m part to the 10'00 pm cut-off rule.
57. The numbers of overdetentions and overdetention hours m the first year of the Barnes class period is at least 2,547 and 74,411. respectlvelv.

58. The number of these over detamed court returns entitled to release subjected to post release strip searches in the first-vear of the class period is at least 2,351.

59. While persons entitled to release because of completion of sentence had a consistently lower potential overdetention rate than court returns entitled to release, persons entitled to release because of completIOn of sentence also exhibited relatively higher potential overdetention rates during the first vear of the Barnes class period in companson to more recent Years. Six of the first 12 months show a potential overdetention rate above 15 percent. whereas thiS rate is almost always at or below 10 percent beginnmg in November 2006.

60. The number of overdetentions for the whole overdetention class period to· - [Formatted: WIdow/Orphan control

date is at least between 4.432 and 4,540, and that the number of overdetentlOn

hours for the whole overdetention class period to date IS at least between 162.51:') and 252120.

42. .The exact cause of the recent overdetentions and illegal court

( Formatted: Font. Bookman Old Style

return strip searches is not lmov.'n, but the causes, on information

and belief, include recurring problems with the DC Jail's

24

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 25 of 45
computerized inmate population accounting system and the deliberate indifference of the acting "varden Patricia Britton and the acting director Elv;ood York and the resignation of competent managers from the Records Office and the failure to replace them. ~Records Room staff have communicated the overdetention problem to their superiors by email and by other written and oral communications to their superiors 4;,--DOC officials and City Council Members and the Mayor were aware of these problems and the over detention and post release strip search problems, but remained deliberately indifferent to the risk of over detentions and post release strip searches and acquiesced in the current overdetention and strip search problems.
62. As part of the Bvnum Settlement Agreement the DOC retained $3,000,000 for construction of a stand-alone inmate processing center ("ICF') 63. The IPC was intended to provide adequate processing facilities for intakes, releases, and associated records processing for inmates in DOC facilities.
25

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 26 of 45
64. The IPC has not been constructed as of the data of filmg of this amended complaint even though every year as part of its agency review the DOC informs the CIty Council that the project has not been funded and remains un-buIlt. 65. The DOC did not make courthouse releases (that is, Identifying and releasing court returns entitled to release directh' from the Superior Court) from 2001 to 2008. 66. The Government of the District of Columbia has known based on analyses provided by Bynum class counsel and reports of the courthouse release system employed in LA County that courthouse releases would speed releases and reduce erroneous releases and over detentlOns. 67. Bvnum class counsel testified on these topics in November 2002 before the District of Columbia City Council and that courthouse releases would speed releases and reduce erroneous releases and over detentions. 68. Bvnum class counsel prepared a courthouse release package and in about 2004 sent it and the policies and procedures the LA Count\' Sheriffs Department formulated for making courthouse releases to all stake holders includmg opposing counsel in the Bvnum case. 69. The DOC finally began making some courthouse releases from the Superior Court in July 2008.
26

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 27 of 45

70. For example. instead of devising a svstem for transmItting dispositlOns directlv from the Supenor Court judicial officers who made them to DOC Records Office staff the District has for vears relied on the Superior Court Marshal to transmit paper orders from courtrooms at the Superior Court and the District Court to the Records Office or other DOC staff, even when the District knew this system causes delavs in release of mmates. 71. The DIstrict dId not even partiCipate m an analysis of the "sneaker network" system of delivering court orders and other papenvork for court returns until late 2007. 72. The District dId not even make substantive additions to Records Office· staff until late 2007 even though the DOC has known for vears that the Records Office was understaffed to the pomt it could not promptlv and reliably process commitments and releases .•
44. .Their superiors are disregarding the problem and acquiescing • in the current overdetention and strip search problem.
Carl A. Barnes' Overdetention by the DC Jail :;'(,~, ~_On or about 11/17/06 Plaintiff Carl A. Barnes was committed to the DC Jail. ,if". Plaintiff Barnes' Release Date was 2/15/06.
~-------~
~Plaintiff Barnes was currently being overdetained in the DC Jail as of the filing of this action.

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27

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 28 of 45

Carl Barnes was released from the DC Jail on 2/21/09.•
';';"c.l_._.~Plaintiff Barnes has suffered damages as a result of the over detention.
Dernard Hawkins' Overdetention by the DC Jail ,:,;)c'(~_ ",On or about 2/15/06 Plaintiff Dernard Hawkins was committed to the DC Jail.
_)_,___Plaintiff Dernard Hawkins' Release Date was on or about 2/16/06. ~Plaintiff Dernard Hawkins was currently being overdetained at the DC Jail as of the filing of this action.
Plamtiff Dernard Hawkins was released after his Release Date on 2/22/06.
0~-S;;: ..._ ......Plaintiff Dernard Hawkins has suffered damages as a result of the overdetention.
Plaintiff David Peterson"s Overdetention by the DC Jail .:;.":::~._,_On or about 2/13/06 Plaintiff David Peterson was committed to the DC Jail. ':"':;C: , ",_Plaintiff Peterson's Release Date was 2/20/06.

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28

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 29 of 45

", >,::" __But Plaintiff David Peterson was not released on 2/20/06 even though the Department of Corrections lacked a basis to continue detaining him. ~Plaintiff Peterson's was currently being overdetained in the DC Jail as of the filing of this action.
David Peterson was released on 2/24/06 .•
"'=. S~., .~...........Plaintiff Peterson has suffered damages as a result of the overdeten tion.
Plaintiff Razina Jones' Over-detentlOn by the DC Jail 89. On or about 2/25/06 Plaintiff Razina Jones was committed to the DC cJail. 90. Razina Jones was entitled to release on 2/28/06 because a judge of the Superior Court ordered her released al a court hearing at Superior Court and she had no other cases, warrants or detainers to hold her. 91. Instead of being released at Superior Court, Razina clones was returned to DC Jail on 2/28/09-6, 92. She was not released from DC ,Jail until the morning of 3/1 (06 because there ,vas not enough time to release her before the 10 pm cutoff after her court appearance on 2/28/06. 93. Plaintiff ,Jones has suffered damages as a result of the over-detention.

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29

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 30 of 45

plaintiff Carl A. Barnes's Strip Search

(Lr

On 2/15/06 Plaintiff Carl A. Barnes was taken to the

Superior Court and the Superior Court judge sentenced him to time

served.
,s.D.-:L~2 __~___Plaintiff Carl A. Barnes was entitled to release on

2/15/05.

f-;i., <h __ ,.,_But, instead of being released or diverted to the holding

facility at DC General on 2/15/06, Plaintiff Carl A. Barnes was

returned to the DC Jail's general population and subjected to a

strip search and visual body cavity search without any

individualized finding of reasonable suspicion or probable cause

that he was concealing contraband or weapons even though a court

had ordered his release.
,~,L..__Plaintiff Barnes has suffered damages as a result of the

post release strip search.

Plaintiff David Peterson's Strip Search

On 2/21/06 Plaintiff David Peterson was again taken to

the Superior Court and the Superior Court judge ordered his

immediate release.

30

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Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 31 of 45

, <:l':_j,__,On 2/21/06 Plaintiff David Peterson was diverted to the

holding facility at DC General because the judge in his case had

previously ordered that he be released on 2/20/06 and again on

2/21/06 ordered his release.

1~ ; (

Plaintiff David Peterson was entitled to release on

2/20/05. lQLBut, instead of being released from the holding facility at DC

General on 2/21/06, Plaintiff David Peterson was returned to the

DC Jail's general population and subjected to a strip search and

visual body cavity search without any individualized finding of

reasonable suspicion or probable cause that he was concealing

contraband or weapons even though a court had ordered his

release.

,. The guards at the DC Jail subjected Mr. Peterson to a

post release strip searches in front of about 5 guards and 75 other

inmates.

Plaintiff Peterson has suffered damages as a result of the

strip search.

31

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 32 of 45

Dernard Hawkins' post release strip search at the DC Jail 104. On or about 2/15/06 Plaintiff Dernard Hawkins. was taken to the Superior Court for a hearing on a bench warrant issued by a Superior Court judge. 105. The Court quashed the warrant and vacated the show cause hearing at the appearance. 106. However, instead of being released from the Superior Court courthouse or diverted to the holding facility at DC General on 2/15 (06, Plaintiff Dernard Hawkins was taken to the DC Jail and ,committed to the DC Jail even though he had no other pending cases, no warrants or no detaincrs blocking his release, ..and in front of two guards and 7 other inmates subjected to a strip search and visual body cavitv search without anv individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release., 107. ,Plaintiff BarneHawkins has suffered damages as a result of the post release strip search. Plaintiff Maurice Williams' post release strip searches at the DC Jail

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32

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 33 of 45
108. Plaintiff Maurice Williams at the time the First Amended Complaint was filed (2/24/06) was held in the DC Jail on a traffic hold that had been vacated 2/8/06. He was the subject of a show cause order for probation violation in a misdemeanor case issued by a District of Columbia Superior Court (but he was not subject to a hold in the misdemeanor probation case and the Records Office did not show him as being held in the misdemeanor probation case), and he had a hearing scheduled for 2/27/06 in the misdemeanor probation case, after which he was likely to be overdetained and subjected to an illegal court return strip search. The judge in the misdemeanor probation case issued a release order at the 2/27/06 hearing (even though there was no hold in that case) but the DC Jail continued to hold him on the traffic case (even though the traffic hold had been vacated 2/8/06) until 3/1/06 even though the Superior Court records showed that the traffic hold had been discharged on 2/8/06. Pursuant to the custom of overdetentions and the policy of strip searches Mr. Williams was overdetained for 23 days and subjected to an illegal strip search after judges had ordered his release.
33

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 34 of 45
109. The post release strip searches of Mr. Williams were conducted in front of several guards and manv other inmates.
Plaintiff BarneWilliams has suffered damages as a result of the post release strip searches.
Plaintiff Toney James Malloy' post release strip search at the DC Jail
4"__ ,",plaintiff Toney James Malloy wafS an inmate in the custody of the Department of Corrections who as of the time of the filing of thts~ second amended complaint is-being held in the District of Columbia Superior Court lock up after being sentenced to probation with no confinement with no other charges on which he twas being held, no warrants, detainers or other basis for detention. 69:--Pursuant to the policy of the District of Columbia Department of Corrections, Plaintiff Toney James Malloy, instead of being released from the District of Columbia Superior Court courthouse, will bewas returned to a Department of Corrections facility for outprocessing.
34

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 35 of 45

--Pursuant to a recent practice and custom of the District of Columbia Department of Corrections known to policymakers, Plaintiff Toney James Malloy vlill bewas subjected to a suspicionless strip search in front of guards and other inmates and overdetained before being released. 113. On 2/24/06, .,his Release Date, Plaintiff Toney James Malloy • was subjected to a blanket strip search in the DC Jail after his return to from court as a condition of entry into the DC Jail in front of two guards and about 30 other inmates .• 114.•Plaintiff Malloy has suffered damages as a result of the post release strip search.
PlaIntiff Razina Jones' post release stnp search at the DC Jail 115. Razina Jones was entitled to release on 2/28 (06 because a judge of the Superior Court ordered her released at a court hearing at Superior Court and she had no other cases, \varrants or detainers to hold her. 116. Instead of being released a1 Superior Court, Razina clones was returned to DC Jail on 2(28/06,
117. Upon her return to the DC Jail Plaintiff Jones was subjected to a
suspicion-less post release slnp search in the female Release and Discharge Processing area ...
35

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Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 36 of 45

·.··lJ :')_,_, 'plaintiff Jones has suffered damages as a result of the
post release strip search.•. .SUBSTANTIVE ALLEGATIONS Count 1
§ 1983 Deliberate Indifference Liability of the District for the Constitutional Violations of its Employees
:;·llc;,._The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint.
::::.i~l~__District of Columbia administrators, policy makers,
supervisors and employees caused the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and unreasonable strip searches of the Strip Search Named Plaintiffs and all other class members and Strip Search Class members by deliberate indifference to the risk of constitutional injury of overdetention in administering records relating to inmates' detention and release, and maintaining and acquiescing in a policy and practice of strip searching certain inmates.

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36

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 37 of 45
~::::., ;~ , ~_Overdetaining any person violates that person's Fourth and Fifth and Eighth Amendment rights.
Unreasonably strip searching an inmate violates his Fourth and Fifth Amendment rights.
~J2';L,__ District of Columbia employees continue in such conduct
up to and including the present. all relevant times such District of Columbia employees
were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the District of Columbia, and such District of Columbia employees were acting in furtherance of the business of the District of Columbia. :,,:, ,: :?S-,-__The District is therefore liable by virtue of its deliberate indifference under 42 U.S.C. § 1983 for constitutional injuries to the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and all other class members and Strip Search Class members caused by the conduct of such employees. ~J ~{},_,_Accordingly, all Named Plaintiffs and class members are entitled to damages to be determined at trial, and the Overdetention and Strip Search Classes are entitled to injunctive relief.
37

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 38 of 45
Count 2 § 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth, Fifth and Eighth Amendment
Rights of Overdetained Named Plaintiffs and Class Members ::xs.~; :~.~~__~_The Overdetained Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. ;";':jc 121:;__~ ___ Beginning approximately in late December 2005, the District of Columbia, and its agents and employees, have had a custom of detaining people past their release dates, thereby causing the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and all other class members.
-,--_d.:::"__The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Overdetained Named Plaintiffs and all other class members' Fourth, Fifth and Eighth Amendment rights. "'2c;1~Y:-,_.Accordingly, all Overdetention Named Plaintiffs and Overdetention Class members are entitled to damages to be
38

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 39 of 45

determined at trial, and the Overdetention Class is entitled to

injunctive relief.

Count 3

§ 1983 Monell Custom and Practice Direct Liability of District of

Columbia for Violation of Fourth and Fifth Amendment Rights of

Strip Search Named Plaintiffs and Strip Search Class Members for

Illegal Strip Searches

The Strip Search Named Plaintiffs reallege and

incorporate by reference all allegations set forth in this Complaint.

The District's actions, and failure to act, as described

above, directly and proximately and affirmatively were the moving

force behind the violations of the Strip Search Named Plaintiffs and

the Strip Search Class members' Fourth and Fifth Amendment

rights.

x~~

Accordingly, Named Plaintiffs Barnes, Malloy and

Petersen and the Strip Search Class members are entitled to

damages to be determined at trial, and the Strip Search Class is

entitled to injunctive relief.

39

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 40 of 45
IRREPARABLE INJURY AND INJUNCTIVE RELIEF .J. ~:.'::_,__The District is overdetaining members of the plaintiff Overdetention Class and unreasonably subjecting members of the Strip Search Class to strip searches and visual body cavity searches, which irreparably harms them, even if they are later able to recover compensatory damages.
X, ::~, i_~_E'2___".__The District's overdetaining members of the plaintiff
Overdetention Class and performing illegally strip searches of the plaintiff Strip Search Class has irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff Overdetention Class and Strip Search Class, thus making declaratory and injunctive relief necessary.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief: 1. grant a jury trial on all claims so triable; 2. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and Rule
40

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 41 of 45
23(b)(3) and certifying the Overdetained Named Plaintiffs as the proper representative of the class consisting of:
(a) Each person who has been, is, or will be incarcerated in any District of Columbia Department of Corrections facility from 9/1/05 up to and until the date this case is terminated; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 3. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b) (2) and 23(b)(3) and certifying the Strip Search Named Plaintiffs as the proper representative of the Strip Search Class consisting of each member of the class who was, or in the future will be, from 9/1/05, forward:
(i) was or will be in custody of the Department of Corrections;
(ii) was or will be taken to court from a Department of Corrections facility;
41

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 42 of 45
(iii) was or will be ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release;
(iv) was not or will not be the subject of any other pending case or cases which imposed any condition of release other than personal recognizance;
(v) was not or will not be the subject of any detainer or warrant;
(vi) was or will be returned to the DC Jail or CTF from court, to be processed out of Department of Corrections custody; and
(vii) was or will be subjected to a strip search and/ or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons;
42

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 43 of 45
(viii) before being released, regardless of whether he was or will be overdetained. 4. declare that the Districts' acts alleged above violate the Fourth, Fifth and Eighth Amendments to the Constitution by overdetaining and illegally strip searching plaintiffs as alleged herein; 5. preliminarily and permanently enjoin the Districts from pursuing the course of conduct complained of herein; 6. preliminarily and permanently enjoin the Districts from pursuing settlement directly with any member of the putative Overdetention Class and Strip Search Class described herein unless that person is represented by counsel; 7. award all named plaintiffs compensatory and consequential damages in an amount to be determined at trial; 8. appoint an independent monitor to supervise the Records Office, and report to the court, to ensure that all inmates are released on or before their Release Dates, at the expense of Defendants;
43

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 44 of 45
9. appoint an independent monitor to supervise the R&D Offices, and report to the court, to ensure that all detainees and inmates who have been ordered released are not strip searched or full-body cavity searched;
10. award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988; and
11. grant such other relief as this Court deems just and proper.
44

Case 1:06-cv-00315-RCL Document 329-1 Filed 01/20/11 Page 45 of 45
Respectfully submitted,
__/sig/ _ _ _ _ _ _ _ __
WILLIAM CLAIBORNE D.C. Bar # 446579 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
JURY DEMAND Plaintiffs demand a jury of six as to all claims so triable.
___I sig/_________
WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and the class
45

 
 Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARL A. BARNES

)

DC Jail

)

1903 E Street, SE

)

Washington, DC 20021

)

DCDC 278-872,

)

)

DERNARD HAWKINS

)

DC Jail

)

1903 E Street, SE

)

Washington, DC 20021

)

DCDC 281-828

)

)

DAVID PETERSON

DC Jail

)

1903 E Street, SE

)

Washington, DC 20021

)

DCDC 252-552

)

and

)

)

MAURICE WILLIAMS

)

)

DC Jail

)

1903 E Street, SE

)

Washington, DC 20021

)

DCDC 197-245

)

)

On behalf of all others

)

similarly situated,

)

)

Plaintiffs

)

)

v.

)

)

SERVE: Mayor ANTHONY WILLIAMS)

Or his designee

)

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Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 2 of 25

Office of the Secretary

)

Gladys Herring

)

John Wilson Building

)

1350 Pennsylvania Avenue, N.W. )

Washington, D.C. 20004

)

Defendant

)

__________

)

CLASS ACTION
COMPLAINT FOR INDIVIDUAL MONEY DAMAGES AND CLASS INJUNCTIVE RELIEF AND JURY DEMAND

Introduction

1. This is an action brought by each of Carl A. Barnes, Dernard

Hawkins, David Peterson and Maurice Williams (the “Overdetention Named

Plaintiffs”) on his own behalf and on behalf of the class defined below injured (or

presently subject to injury) by the Government of the District of Columbia’s

recently revived pattern and practice of allowing its Department of Corrections to

overdetain inmates, and by the District’s deliberate indifference to the effect of the

practice of overdetention on the rights of inmates. To overdetain means holding a

detainee or prisoner in a District of Columbia Department of Corrections

("Department of Corrections") facility past midnight of his or her release date, as

defined below.

2. This is also an action brought by Carl A. Barnes, David Peterson and

Maurice Williams (the "Strip Search Named Plaintiffs") on his own behalf and on

2

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 3 of 25
behalf of a Strip Search Class of individuals who were injured (or presently subject to injury) by the District’s conduct in subjecting them to blanket strip searches and visual body cavity searches (both described below) after they were returned to a Department of Corrections facility after a judicial determination that there was no longer a basis for their detention, other than to be processed for release, and by District’s deliberate indifference to the effect of the practice of blanket strip searches and visual body cavity searches on the rights of inmates.
3. The Overdetained Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth, Fifth and Eighth Amendments, for injuries suffered by them, because the District overdetained them and other members of the class at a Department of Corrections facility.
4. The Strip Search Named Plaintiffs bring this action against the Government of the District of Columbia under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce the Fourth and Fifth Amendments, for injuries suffered by them, because the District subjected them and the class to the blanket strip searches.
Jurisdiction and Venue 5. This Court has jurisdiction over the Overdetained Named Plaintiffs
3

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 4 of 25
and Strip Search Named Plaintiffs’ § 1983 claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3).
6. Venue is appropriate in this District. Each of the claims for relief arose in this judicial district.
Class Action Allegations 7. The Overdetained Named Plaintiffs bring this action under Rules 23(a), 23(b) (2), of the Federal Rules of Civil Procedure on behalf of a class consisting of: (a) Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 8. The Strip Search Named Plaintiffs also bring this action under Rules 23(a), 23(b) (2) of the Federal Rules of Civil Procedure on behalf of a class consisting of each member of the class who was, or in the future will be, from September 1, 2005, forward: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending
4

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 5 of 25
or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned from court to the DC Jail or CTF or other District facility, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained.
9. Certification of these two classes under Federal Rule of Civil Procedure 23(b)(2) is appropriate, because the District of Columbia has a pattern and practice that has uniformly affected all members of both classes, and injunctive relief against the District will benefit each and every plaintiff and class member. Although the District had agreed to stop these practices, and indeed had done so in the context of the settlement of Bynum v. District of Columbia , Civil Action No. 02-956 (RCL), the final approval order did not require that the practices stop. These practices have recently been revived, making it clear that a court order is necessary to ensure the rights of the class members.
5

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 6 of 25
10. The classes are entitled to injunctive relief, for example, setting up an independent monitor to supervise the Department of Corrections' inmate management system to ensure that all inmates are released on or before their release dates, and other relief as specified below.
11. Regarding the Overdetained Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability other than whether an individual has been overdetained, and the answer to that question can be determined by ministerial inspection of the Department of Corrections' records.
12. Computer records are available for inspection on the overdetentions. 13. Regarding the Strip Search Named Plaintiffs, and members of the Strip Search Class, there are no individual questions on the issue of liability, because neither the DC Jail nor CTF keeps records of the searches and therefore neither the DC Jail nor CTF can show that any of the searches were conducted based on an individual determination of reasonable suspicion. 14. Among the questions of law and fact common to the classes are:
a) whether the Constitution provides a maximum length of time measured in hours beyond which the District cannot hold a person to perform administrative tasks incident to release before releasing that person from jail;
6

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 7 of 25
b) whether the District has exceeded that maximum for each class member;
c) whether the District has a pattern and practice of holding detainees and inmates past their release dates;
d) whether the District has a pattern and practice of being deliberately indifferent to the rights of detainees and inmates by holding them past their release dates;
e) whether the District’s acts as alleged herein violate the Constitution of the United States by holding detainees and inmates past their release dates;
f) whether the District has a policy of and practice of subjecting persons to blanket strip searches and visual body cavity searches after they have become entitled to release;
g) whether such policy, if found to exist, violates the Fourth and/or Fifth Amendments; and
h) whether plaintiffs and the members of the Overdetention Class and the Strip Search Class and future members are entitled to equitable relief, and, if so, what is the nature of that relief.
7

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 8 of 25
15. Each of the Overdetention Class and the Strip Search Class is so numerous that joinder of all members is impracticable. The exact number of Overdetention Class and Strip Search Class members is unknown to plaintiffs at this time, but is likely to consist of at least one hundred people, and likely substantially more than that.
16. The Overdetained Named Plaintiffs’ claims are typical of the claims of the other members of the class, as plaintiffs and all other members of the class were injured by exactly the same means, that is, by the overdetentions.
17. The Strip Search Named Plaintiffs’ claims are typical of the claims of the other members of the Strip Search Class, as the Strip Search Named Plaintiffs and all other members of the Strip Search Class were injured by exactly the same means, that is, by the blanket strip searches.
18. The Overdetained Named Plaintiffs and the Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the Overdetention Class and Strip Search Class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
8

Case 1:06-cv-00315-RCL Document 1 Filed 02/23/06 Page 9 of 25
19. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class or Strip Search Class.
Parties 20. Plaintiff Carl A. Barnes is currently being held past his Release Date at the DC Jail and was strip searched without reasonable suspicion after being ordered to be released from custody. 21. Plaintiff Dernard Hawkins is currently being held past his Release Date at the DC Jail. 22. Plaintiff David Peterson is currently being held past his Release Date at the DC Jail and was strip searched without reasonable suspicion after being ordered to be released from custody. 23. Plaintiff Maurice Williams is currently held in the DC Jail on a show cause order for probation violation issued by a District of Columbia Superior Court, who has a hearing scheduled for 2/27/06, at which he is likely to be released, and after which he is likely to be overdetained and subjected to an illegal court return strip search.
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24. The District Government of the District of Columbia (hereinafter the District of Columbia or the District) is a municipal corporation capable of being sued under D.C. Code § 1-102.
FACTUAL ALLEGATIONS Components of the Department of Corrections 25. The District of Columbia Department of Corrections holds prisoners committed by the District of Columbia Superior Court, the District of Columbia District Court, and other agencies, in the Central Detention Facility (“DC Jail”), the Correctional Treatment Facility ("CTF") and at various halfway houses located in the District of Columbia. 26. Most prisoners held in the custody of the Department of Corrections are either pre-trial detainees, misdemeanants serving sentences, or parole and probation violators.
The Inmate Management System 27. The records office located at the DC Jail ("Records Office") is responsible for administering and maintaining the records, including the judgment and commitment files, of all persons housed at the DC Jail, CTF and the halfway houses.
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28. The Records Office is responsible for ensuring that all persons housed at the DC Jail, CTF and the halfway houses are released according to their Release Dates specified in their court orders.
29. The District of Columbia Superior Court enforces a policy pursuant to which an in-custody-defendant or a defendant ordered into custody may not leave the courtroom without an order (commitment order or release order) for each case on which he appeared.
The Overdetention Problem 30. "Overdetain" means holding a detainee or prisoner in Department of Corrections' custody past the person’s release date. 31. “Release Date” for each detainee or inmate is the day on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 32. “Exit Date” for each detainee or inmate is the day on which the person is actually released from the custody of the District of Columbia Department of Corrections. 33. The Department of Corrections had a long and documented history of overdetaining detainees and inmates past their release dates.
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34. The Department of Corrections, in response to a class action lawsuit, instituted reforms that ameliorated and for periods eliminated the overdetention problem.
35. However, in the last few weeks before the filing of this complaint, and, on information and belief, particularly since late December 2005, the Department of Corrections has again begun overdetaining large numbers of inmates.
36. The overdetention problem has been especially severe in the last few weeks because of problems with the Department of Corrections’ computerized inmate population accounting system.
The Court Return Strip Search Problem 37. Prior to late 2000 or early 2001, the Department of Corrections followed a practice under which most inmates taken from custody of the Department of Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jail or CTF for processing for release rather than being released from the courthouse. 38. In late 2000 or early 2001, the Department of Corrections instituted a policy under which every inmates taken from custody of the Department of
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Corrections to court and ordered released by a judicial officer because the charge was no longer pending or because of a change in conditions of release was returned to the DC Jail or CTF for processing for release rather than being released from the courthouse.
39. In August 2005 the Department of Corrections instituted a policy of diverting in-custody defendants ordered released or otherwise entitled to release from the Superior Court of the District of Columbia to a holding facility on the grounds of DC General Hospital where they would not be subject to a strip search, absent individualized suspicion, while the record review for detainers and warrants and property retrieval was conducted prior to release.
40. However, in the last few weeks before the filing of this complaint, and, , on information and belief, particularly since late December 2005, the Department of Corrections has been returning some in-custody defendants entitled to release from the courthouses to the DC Jail or CTF and subjecting them to strip searches after a judge has ordered their release without a finding of individual reasonable suspicion.
41. The exact cause of the recent overdetentions and illegal court return strip searches is not known, but the causes, on information and belief, include recurring problems with the DC Jail’s computerized inmate population accounting
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system and the deliberate indifference of the acting warden Patricia Britton and the acting director Elwood York and the resignation of competent managers from the Records Office.
Carl A. Barnes’ Overdetention by the DC Jail 42. On or about 11/17/06 Plaintiff Carl A. Barnes was committed to the DC Jail. 43. Plaintiff Barnes’ Release Date was 2/15/06. 44. Plaintiff Barnes is currently being overdetained in the DC Jail. 45. Plaintiff Barnes has suffered damages as a result of the over detention.
Dernard Hawkins’ Overdetention by the DC Jail 46. On or about 2/15/06 Plaintiff Dernard Hawkins was committed to the DC Jail. 47. Plaintiff Dernard Hawkins’ Release Date was on or about 2/16/06. 48. Plaintiff Dernard Hawkins is currently being overdetained at the DC Jail. 49. Plaintiff Dernard Hawkins has suffered damages as a result of the overdetention.
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Plaintiff David Peterson’s Overdetention by the DC Jail 50. On or about 2/13/06 Plaintiff David Peterson was committed to the DC Jail. 51. Plaintiff Peterson's Release Date was 2/20/06. 52. But Plaintiff David Peterson was not released on 2/20/06 even though the Department of Corrections lacked a basis to continue detaining him. 53. Plaintiff Peterson's is currently being overdetained in the DC Jail. 54. Plaintiff Peterson has suffered damages as a result of the overdetention.
Plaintiff Carl A. Barnes’s Strip Search 55. On 2/15/06 Plaintiff Carl A. Barnes was taken to the Superior Court and the Superior Court judge sentenced him to time served. 56. Plaintiff Carl A. Barnes was entitled to release on 2/15/05. 57. But, instead of being released or diverted to the holding facility at DC General on 2/15/06, Plaintiff Carl A. Barnes was returned to the DC Jail’s general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 58. Plaintiff Barnes has suffered damages as a result.
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Plaintiff David Peterson’s Strip Search 59. On 2/21/06 Plaintiff David Peterson was again taken to the Superior Court and the Superior Court judge ordered his immediate release. 60. On 2/21/06 Plaintiff David Peterson was diverted to the holding facility at DC General because the judge in his case had previously ordered that he be released on 2/20/06 and again on 2/21/06 ordered his release. 61. Plaintiff David Peterson was entitled to release on 2/20/05. 62. But, instead of being released from the holding facility at DC General on 2/21/06, Plaintiff David Peterson was returned to the DC Jail’s general population and subjected to a strip search and visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons even though a court had ordered his release. 63. Plaintiff Peterson has suffered damages as a result.
Plaintiff Maurice Williams 64. Plaintiff Maurice Williams is currently held in the DC Jail on a show cause order for probation violation issued by a District of Columbia Superior Court, who has a hearing scheduled for 2/27/06, at which he is likely to be released, and after which he is likely to be overdetained and subjected to an illegal court return strip search.
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SUBSTANTIVE ALLEGATIONS Count 1
§ 1983 Deliberate Indifference Liability of the District for the Constitutional Violations of its Employees
65. The Overdetained Named Plaintiffs and Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint.
66. District of Columbia administrators, policy makers, supervisors and employees caused the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and unreasonable strip searches of the Strip Search Named Plaintiffs and all other class members and Strip Search Class members by deliberate indifference to the risk of constitutional injury of overdetention in administering records relating to inmates’ detention and release, and maintaining and acquiescing in a policy and practice of strip searching certain inmates.
67. Overdetaining any person violates that person’s Fourth and Fifth and Eighth Amendment rights.
68. Unreasonably strip searching an inmate violates his Fourth and Fifth Amendment rights.
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69. District of Columbia employees continue in such conduct up to and including the present.
70. At all relevant times such District of Columbia employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the District of Columbia, and such District of Columbia employees were acting in furtherance of the business of the District of Columbia.
71. The District is therefore liable by virtue of its deliberate indifference under 42 U.S.C. § 1983 for constitutional injuries to the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and all other class members and Strip Search Class members caused by the conduct of such employees.
72. Accordingly, all Named Plaintiffs are entitled to damages to be determined at trial, and the Overdetention and Strip Search Classes are entitled to injunctive relief.
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Count 2 § 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth, Fifth and Eighth Amendment Rights of Overdetained Named
Plaintiffs and Class Members 73. The Overdetained Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 74. Beginning approximately in late December 2005, the District of Columbia, and its agents and employees, have had a custom of detaining people past their release dates, thereby causing the intentional, unjustified overdetention of the Overdetained Named Plaintiffs and all other class members. 75. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Overdetained Named Plaintiffs and all other class members’ Fourth, Fifth and Eighth Amendment rights. 76. Accordingly, all Named Plaintiffs are entitled to damages to be determined at trial, and the Overdetention Class is entitled to injunctive relief.
Count 3
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§ 1983 Monell Custom and Practice Direct Liability of District of Columbia for Violation of Fourth and Fifth Amendment Rights of Strip Search Named Plaintiffs
and Strip Search Class Members for Illegal Strip Searches 77. The Strip Search Named Plaintiffs reallege and incorporate by reference all allegations set forth in this Complaint. 78. The District's actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Strip Search Named Plaintiffs and the Strip Search Class members’ Fourth and Fifth Amendment rights. 79. Accordingly, Named Plaintiffs Barnes and Petersen are entitled to damages to be determined at trial, and the Overdetention Class is entitled to injunctive relief.
IRREPARABLE INJURY AND INJUNCTIVE RELIEF 80. The District is overdetaining members of the plaintiff class and unreasonably subjecting members of the Strip Search Class to strip searches and visual body cavity searches, which irreparably harms them, even if they are later able to recover compensatory damages. 81. The District's overdetaining members of the plaintiff class and performing illegally strip searches of the plaintiff Strip Search Class has
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irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff Overdetention Class and Strip Search Class, thus making declaratory and injunctive relief necessary.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief: 1. grant a jury trial on all claims so triable; 2. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and certifying the Overdetained Named Plaintiffs as the proper representative of the class consisting of:
(a) Each person who has been, is, or will be incarcerated in any District of Columbia Department of Corrections facility from 9/1/05 up to and until the date this case is terminated; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. 3. declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b) (2) and certifying the Strip Search Named Plaintiffs as the proper representative of the Strip Search Class consisting
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of each member of the class who was, or in the future will be, from 9/1/05, forward:
(i) was or will be in custody of the Department of Corrections; (ii) was or will be taken to court from a Department of Corrections facility; (iii) was or will be ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not or will not be the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not or will not be the subject of any detainer or warrant; (vi) was or will be returned to the DC Jail or CTF from court, to be processed out of Department of Corrections custody; and (vii) was or will be subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or
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probable cause that he was concealing contraband or weapons; (viii) before being released, regardless of whether he was or will be
overdetained. 4. declare that the Districts’ acts alleged above violate the Fourth, Fifth and Eighth Amendments to the Constitution by overdetaining and illegally strip searching plaintiffs as alleged herein; 5. preliminarily and permanently enjoin the Districts from pursuing the course of conduct complained of herein; 6. preliminarily and permanently enjoin the Districts from pursuing settlement directly with any member of the putative Overdetention Class and Strip Search Class described herein unless that person is represented by counsel; 7. award all named plaintiffs compensatory and consequential damages in an amount to be determined at trial; 8. appoint an independent monitor to supervise the Records Office, and report to the court, to ensure that all inmates are released on or before their Release Dates, at the expense of Defendants; 9. appoint an independent monitor to supervise the R&D Offices, and report to the court, to ensure that all detainees and inmates who have been ordered released are not strip searched or full-body cavity searched;
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10. award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988; and
11. grant such other relief as this Court deems just and proper.
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Respectfully submitted,
____/sig/________________________ WILLIAM CLAIBORNE D.C. Bar # 446579 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
JURY DEMAND Plaintiffs demand a jury of six as to all claims so triable.
_______/sig/______________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Overdetained Named Plaintiffs and Strip Search Named Plaintiffs and the class
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 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________________

)

CARL A. BARNES, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

Civil Action No. 06-315 (RCL)

DISTRICT OF COLUMBIA,

)

)

Defendant.

)

______________________________________ )

MEMORANDUM AND ORDER (TRIAL PLAN)

Before the Court are the District’s Proposal for Proceeding [317], Oct. 25, 2011, and

plaintiffs’ Proposed Trial Plan [319], Oct. 26, 2011, as amended by an altered trial plan

submitted in November 2011. See Pls.’ Am. Proposed Trial Plan [326], Nov. 29, 2011. In these

submissions, the parties present a number of proposals for going forward with what remains of

the liability phase of this case, as well as the subsequent damages phase. Upon consideration of

the parties’ proposals, their objections and responses, the entire record in this case, and the

applicable law, the Court has determined a plan for proceeding while also resolving certain

preliminary issues in a manner that will expedite resolution of this litigation.

I. BACKGROUND

As is more fully explained in this Court’s earlier opinions, see, e.g., Barnes v. District of

Columbia, 793 F. Supp. 2d 260, 265 (D.D.C. 2011), this case involves overdetentions and strip

searches at the District’s jail facilities. This is the second of two virtually identical class actions

filed against the District in the past ten years involving overdetentions and strip searches at its

jails. The first one, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL), settled in

January 2006 pursuant to an agreement containing terms designed to remedy the overdetention

and strip-search problems. Bynum, 412 F. Supp. 2d 73 (D.D.C. 2006). Among these terms was

a requirement that the District set aside $3 million from the $12 million settlement amount to build a new inmate processing center. Id. at 83.
This Court was initially hopeful that the Bynum settlement would produce “significant policy changes in the operation of the Department of Corrections.” Id. at 85. But, as it turns out, the overdetention and strip-search problems continued unabated for well over a year, precipitating the filing of the instant lawsuit. Barnes, 793 F. Supp. 2d at 267–68. In February 2006, Carl Barnes and several other named plaintiffs brought suit under 42 U.S.C. § 1983, alleging that their overdetentions and strip searches violated various amendments to the Constitution and the District was liable. Pls.’ Second Am. Compl. [12] ¶¶43, 44. The Court later certified the case as a class action. Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007). Specifically, the Court certified the case as a hybrid class action, with plaintiffs’ claims for injunctive and declaratory relief certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure and plaintiffs’ claims for “monetary damages” certified under Rule 23(b)(3). Id. at 124. The Court defined both an “overdetention” and “strip search” class, id. at 120–21, and later ordered that the case be bifurcated into liability and damages phases. Order [65], Aug. 31, 2009.
After discovery as to liability concluded, the parties filed cross-motions for summary judgment, and the Court ruled on those motions in June 2011. Barnes, 793 F. Supp. 2d at 273– 91. The Court held, inter alia, that the District was liable for overdetentions that occurred at its jail facilities from September 1, 2005 up to and including December 31, 2006. Id. at 285. The Court determined that genuine issues of material fact precluded a finding of summary judgment for plaintiffs or the District as to the District’s liability for overdetentions that occurred from January 1, 2007 to February 25, 2008. Id. at 286. As to overdetentions that occurred from February 26, 2008 to the present, the Court found that the District was not liable as a matter of
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law. Id. However, as to any overdetentions caused by the DOC’s enforcement of an ordinance dubbed the “10 p.m. cut-off rule,” the Court found the District liable during all parts of the class period. Id. at 283. As to the DOC’s policy of strip searching court returns entitled to release, the Court found that such class members’ Fourth Amendment rights were violated and that the District was liable. Id. at 291.
Following the Court’s issuance of this ruling, and upon the request of the parties, the case was stayed for sixty days and referred to a magistrate judge for mediation. Order [311] Aug. 9, 2011. The parties, however, were apparently too far apart and settlement discussions failed. This brings us to the present moment, where a trial of the remaining issue of liability has yet to be scheduled and significant questions remain regarding how the damages phase of the litigation should proceed. The parties’ inability to reach a settlement in this case may be due, at least in part, to lingering uncertainty about these issues. II. STANDARD OF REVIEW
Federal trial courts have broad discretion to manage the conduct of litigation and to structure trials in a manner that expedites the proceedings while achieving the core purposes of a trial and protecting litigants’ rights. As to class actions, which present unique problems of management, Rule 23(d)(1) of the Federal Rules of Civil Procedure states that in conducting a class action, the court may issue orders that “determine the course of proceedings or prescribe measures to prevent undue repetition in presenting evidence or argument.” Fed. R. Civ. P. 26(d)(1). Trial courts have “both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989).
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III. ANALYSIS A. Preliminary Issues As an initial matter, plaintiffs have indicated their intent to seek leave to amend their
complaint “to clarify their theories of liability[] and the damages flowing from them” and to also file another motion for summary judgment as to the District’s liability for overdetentions during the disputed period—i.e., January 1, 2007 to February 25, 2008. Pls.’ Proposed Trial Plan [319] 3. The Court hereby advises plaintiffs, however, that it will not grant a motion for leave to amend the complaint and will not entertain further motions for summary judgment.
Plaintiffs filed their original Complaint in February 2006, amending it a day later (mostly to add an additional named plaintiff). See Compl. [1], Feb. 23, 2006; Am. Compl. [3] Feb. 24, 2006. The case then proceeded through a motion-to-dismiss stage, class certification, a round of mediation, a protracted and cantankerous period of fact and expert discovery, motions for summary judgment, and another round of mediation, and only now—six years into the case—do plaintiffs propose to re-amend their Complaint. While leave to amend pleadings should be freely granted “when justice so requires,” Fed. R. Civ. P. 15(a), a court may deny a motion for leave to amend if it finds “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party.” In re Papst Licensing GmbH & Co. KG Litigation, 762 F. Supp. 2d 56, 59 (D.D.C. 2011) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiffs provide no justification for why these additional theories of liability and “clarification” of their requested damages were not pursued in a timely motion for leave years ago, and their failure to seek leave earlier unduly prejudices the District, needlessly taxes this Court’s resources, and will delay the resolution of this litigation. If leave is sought, it shall not be granted.
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For similar reasons, the Court will not entertain further motions for summary judgment. Plaintiffs had ample opportunity to explore theories concerning the District’s liability in their first, 59-page motion for summary judgment (along with its 93-page Statement of Material Facts and many hundreds of pages of exhibits). By neglecting, despite its voluminous filings, to fully make their case at that stage, and by seeking now to reopen summary-judgment briefing, plaintiffs would only further protract this already protracted litigation while depriving the District of the opportunity to explore its defenses to these theories in discovery and increasing the litigation expenses of all parties. Furthermore, plaintiffs offer no legal support for the proposition that after resolution of cross-motions for summary judgment, and absent a showing of compelling circumstances, a party can simply seek a “re-do” of issues already litigated. If plaintiffs wish, they may file a motion for reconsideration pursuant to Federal Rule of Civil Procedure 54(b) seeking modification of the Court’s summary-judgment Order—and plaintiffs have already done so with regard to certain aspects of that Order, see Pl.’s Mot. Reconsideration [320], Nov. 1, 2011—but the Court advises plaintiffs that the standard for reconsideration is a stringent one. See Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010).
B. Liability Trial of the Disputed Period and Additional Discovery The parties’ competing trial plans also address the upcoming liability trial of the disputed period and additional fact and expert discovery that may be required prior to that trial. This would require the Court to reopen discovery, since liability-phase fact discovery closed on November 5, 2010, Order [176] 3, Dec. 6, 2010, and expert fact discovery closed on December 31, 2010. Order [185] 4, Dec. 16, 2010. Although it is not entirely clear from plaintiffs’ proposals precisely what additional discovery they need to try the remaining liability issues in this case, the District agrees that discovery should be at least partially reopened prior to the liability trial. Def.’s Proposal [317] 2. The District, however—rightly concerned that such
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discovery could easily tread on miles of already trodden ground—seeks to limit this discovery to the number of alleged overdetentions during the disputed period that are projected or identified by plaintiffs and the District. Id. Per its proposal, the District argues than no additional discovery on “process”—i.e., the DOC’s practices and procedures resulting in overdetentions or strip searches—or related topics should be permitted.
The Court agrees with the District. In disposing of the parties’ cross-motions for summary judgment, this Court held that there exist genuine issues of material fact regarding how many overdetentions occurred from January 1, 2007 to February 25, 2008 and whether the District showed deliberate indifference to the overdetention problem by failing to make a serious effort to address that known problem during the period. Barnes, 793 F. Supp. 2d at 285–86. To the extent that any additional liability-phase discovery is necessary at all, it shall be limited to such discovery as will assist each party in determining how many overdetentions occurred during the disputed period. This number is relevant (aside from its relevance to damages) to the issue of whether, in this Section 1983 case, a predicate constitutional violation occurred that could serve as the basis for the District’s liability. Once the jury determines which party’s overdetention figures for the disputed period are the most credible, it will compare that number to other relevant information—such as the number of releases processed by the DOC each year—to determine whether the overdetention class members’ due process rights were violated. See id. at 281. Discovery beyond this narrow issue would needlessly prolong this litigation, since plaintiffs had ample opportunity to probe such areas prior to the close of liability-phase discovery. Furthermore, the utility of such discovery at this stage of the case would likely be hampered by the passage of time and its effect on witness memories and the availability of relevant evidence.
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The District suggests that 120 days would be sufficient to complete this additional discovery, with updates to plaintiffs’ expert report served on the District within the first 60 days of this period. Def.’s Proposal [317] 2. The Court finds that this constitutes a reasonable proposal and will therefore order that this limited, additional fact discovery period shall close 120 days from the date of this Memorandum and Order. Any updated expert reports of either party shall be exchanged no later than 60 days from the date of this Memorandum and Order. However, as to the District’s request that the Court refer all remaining liability-discovery issues to a magistrate judge, id. at 2–3, that request is denied.
C. Damages Discovery and Trial The parties’ most significant disagreement in their proposals concerns how the damages trial in this case will proceed. There has been some evolution in plaintiffs’ views on this issue since the case was filed. In the trial plan submitted by plaintiffs in May 2006, they proposed determining damages via “a single, class-wide damages trial using ‘sampling,’” Pls.’ Proposed Trial Plan [7-30] 4, May 24, 2006, by which they meant “randomly selecting a fraction of the plaintiffs in the class, trying the damages of each plaintiff in the sample to a jury, extrapolating the sample damage award to determine damages for the class as a whole, and then distributing the class damages among class members according to a formula . . . .” Id. at 5. Plaintiffs further suggested that “an expert working under the supervision of a special master” could generate the random sample. Id. Some sort of discovery as to this group of class members would then take place, after which the parties’ experts could propose competing extrapolations for the entire class. Id. Plaintiffs also proposed, as an alternative to random sampling, that damages could be tried by “mini-trials” to judges, without providing any further explanation. Id. at 4. Plaintiffs, however, emphasized that
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random sampling was the best approach, and would produce “substantial savings in time and expense.” Id. at 10.
As to the type of damages plaintiffs would seek to prove, in this original trial plan, plaintiffs referred to such damages generally as “compensatory damages,” id., which included “non-economic damages” as well as damages for intangible injuries such as pain and suffering. Id. at 11. Plaintiffs also indicated that emotional distress damages could also be determined via sampling, indicating that they might be seeking those as well. Id. at 16. Plaintiffs’ Complaint, among other types of relief sought, states that plaintiffs would seek “compensatory” and “consequential damages” and “such other relief as this Court deems just and proper.” Am. Compl. [3] 25. The scope of the damages sought remained hazy. Ultimately this Court certified plaintiffs’ claims for “monetary damages” under Federal Rule of Civil Procedure 23(b)(3), without indicating which specific damages were included. Barnes, 242 F.R.D. at 120.
The District, in its recently submitted trial plan, sets forth a plan for discovery and trial of damages that is almost exactly the same as plaintiffs’ original plan. The District proposes to take “a statistically valid, random sample . . . of all class members to determine general damages for both the overdetention and strip search classes.” Def.’s Proposal [317] 3. The most significant difference between plaintiffs’ original proposal and the District’s current proposal is that plaintiffs’ proposed using random sampling for all damages, while the District proposes only using such sampling techniques to determine “general” damages. The District contends that any other method would violate its “due process” rights, id., and that no matter what method is chosen—i.e., random or non-random sampling—“emotional distress” damages cannot be determined on a classwide basis. Id. at 11 (summarizing Augustin v. Jablonsky, 2011 WL 4953982, *1 (E.D.N.Y. Oct. 19, 2011)). The District also proposes in its plan—in a parallel to plaintiffs’ proposal of an “expert working under the supervision of a special master,” Pls.’
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Proposed Trial Plan [7-30] 5—that the Court appoint a magistrate judge to oversee the selection of an “independent statistician,” agreeable to and paid for by both parties, who would determine the size of a statistically valid random sample for the class. Id.
However, in plaintiffs’ second trial proposal, submitted in October 2011, they put forth a plan for trying damages that was inconsistent not only with the District’s recent plan but also plaintiffs’ own trial plan from May 2006. Instead of random sampling, plaintiffs proposed putting on a non-random sample of “20–30 class members” as well as the testimony of a psychiatric expert and a statistics expert. Pls.’ Proposed Trial Plan [319] 21. Plaintiffs stated that, following testimony from this non-random sample of class members, it would ask the jury “to assign damages based on a matrix” keyed to the length of overdetentions (e.g., 0 to 12 hours, 12 to 24 hours, and so forth), and a separate damages assignment for strip searches. Id. Plaintiffs believe that there is support for this approach in this Circuit, citing the case of Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). At least in this second trial plan, plaintiffs appeared to remain on the fence about what damages they were seeking, stating that it would depend on how the Court decided to try the damages case. Pls.’ Proposed Trial Plan [319] 28.
In its competing trial plan, the District strenuously objects to plaintiffs’ proposed “Dellums” method of determining damages, arguing that plaintiffs simply seek to “cherry-pick 20 to 30 class members . . . without even the pretense that such a sample would be ‘random’ in any meaningful sense or would otherwise be representative of the damages of the class as a whole.” Def.’s Proposal [317] 6–7. The District worries that plaintiffs will simply pick a group of testifying class members with “the most compelling stories to tell,” thereby inhibiting the jury’s effort to accurately determine damages for the class as a whole. Id. at 7. For their part, plaintiffs expressed surprise at the District’s proposal to use random sampling (at one point even
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calling it “cynical”), even though plaintiffs themselves proposed virtually the same plan early in the case.
However, apparently recognizing that the District’s arguments in its trial plan necessitated modifications to their second proposed trial plan, plaintiffs proposed a third one at the end of November 2011. Pl.’s Am. Trial Plan [326] 1. In this latest plan, plaintiffs propose to bifurcate the damages trial, trying “general” damages using the Dellums method and “special” damages using random sampling. Id. at 4. Plaintiffs argue that this approach was recently approved by a federal court in New York, in a case involving a class of prisoners challenging a prison system’s strip-search policy. Id. (citing Augustin, 2011 WL 4953982, at *1). However, while the Augustin case did approve the use of a Dellums-style non-random sample to determine general damages, plaintiffs appear to have overlooked the fact that that court determined that no classwide method of proof—random or non-random sampling—would suffice to prove the special damages in that case. Augustin, 2011 WL 4953982, at *16, *16 n.16.
Upon consideration of the parties’ arguments and the applicable law, the Court finds that the most just and expeditious method of trying damages in this case is to use, as plaintiffs suggest in their latest proposal, the Dellums method, but only for determining general damages for the class. By “general” damages, the Court means the injury to human dignity that is presumed when a person is strip searched or overdetained. See Augustin, 2011 WL 4953982, at *1. In accordance with the Dellums method as well as the method used in Augustin, id. at *2, the parties shall each present the testimony of some members of the overdetention and strip-search classes, up to fifteen in total for each party.
However, because this sample from the overdetention and strip search classes will not be chosen at random, but will be selected by the parties, this sample will not accurately represent the varying circumstances of the absent class members or the varying impacts of the District’s
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conduct upon them. The District could select, for example, fifteen career criminals from the class—an unsympathetic group unlikely to be seriously affected by a single strip search or an extra day in jail. Plaintiffs might pick a group with characteristics designed to elicit the most sympathy from the jury. This would be a trial of the 15 “best” and 15 “worst” cases, and so virtually certain to produce a general-damages award that would not reflect the class members’ actual damages.
To avoid this result, the Court shall place restrictions on the types of testimony that either party may elicit from the witnesses in this non-random sample of class member. That testimony shall be limited solely to the details of such class members’ overdetentions and strip searches— e.g., when they were supposed to be released, whether they had been ordered released by a court or whether their sentences had expired, how long they were overdetained, how the strip search was conducted, and so forth. No testimony will be permitted that could lead the jury’s valuation astray by causing it to believe that the witness’ story was typical of the stories of the absent class members. Therefore, the Court will not permit testimony concerning class members’ backgrounds—e.g., their occupations, education levels, criminal histories, family situations, and similar, personal facts. Because the chosen witnesses will not be selected at random, such testimony would mislead the jury by causing it to project these witnesses’ backgrounds onto the class as whole, even though the backgrounds of the absent class members are likely to differ substantially from those of the witnesses selected by the parties. For the same reason, the Court will not permit testimony concerning the impact of these overdetentions or strip searches on these testifying class members. One witness might tell a story about the severe physical and emotional injury that he or she suffered as a result of the DOC’s conduct, while another witness might testify that this conduct caused them no injury whatsoever. While this might accurately reflect the level of injury suffered by those class members, it could not be relied upon by the jury
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to accurately value, for the entire class, the injury to human dignity that is necessarily entailed in being overdetained or strip searched. Nor will expert testimony concerning the emotional or other impact of overdetentions or strip searches on class members be permitted, as the jury is perfectly capable of assessing that generalized injury themselves based on the class members’ testimony, the parties’ arguments, and their own experiences. As to the strip searches, the jury will determine a dollar value for each strip search; for overdetentions, the jury will assign damages using a matrix based upon the length of overdetentions—i.e., 0–12 hours, 0–24 hours, 0–36 hours, and so forth. To assist the jury in assigning values, the Court will allow expert testimony that is limited to explaining the range of general damages that have been awarded by judges or juries in similar cases.
While the District objects to the use of the Dellums method for any type of damages in this case, including general damages, it agrees that the D.C. Circuit, in Dellums, found that the district court’s use of a non-random sample of class members to determine damages was not an abuse of discretion. Def.’s Proposal [317] 7 (citing Dellums, 566 F.2d at 189 n.56). The District argues, based on out-of-circuit authority, that using non-random samples to determine damages violates “fundamental fairness.” Id. at 8 (citing In re Chevron U.S.A., Inc., 109 F.3d 1016 (5th Cir. 1997)). However, the Chevron case is inapposite, since that case involved a “bellwether”1 trial of both liability and damages for personal injuries sustained from contamination of plaintiffs’ property with waste oil. Chevron, 109 F.3d at 1017–18. The Fifth Circuit decided that the lower court’s decision to try liability and damages using the 15 “best” and 15 “worst” cases provided no assurance that the selected cases were representative of the 3,000 plaintiffs.
1 The Chevron Court provided a succinct and nicely worded description of the origins of the term “bellwether”: “The term bellwether is derived from the ancient practice of belling a wether (a male sheep) selected to lead his flock. The ultimate success of the wether selected to wear the bell was determined by whether the flock had confidence that the wether would not lead them astray, and so it is in the mass tort context.” Chevron, 109 F.3d at 1019.
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Id. at 1019. Only a statistically significant random sample of plaintiffs could achieve the necessary representativeness. Id. Here, however, where a non-random sample of class members will be used to try only general damages, and with testimony concerning the backgrounds and individualized impacts of strip searches and overdetentions on such witnesses precluded, the Court is unable to fathom how using a statistically random sample would perform any useful work whatsoever, while necessarily increasing the complexity and costs of resolving the case. This will not be a trial of the 15 “best” and 15 “worst” cases, but simply the presentation of factual testimony that will help the jury understand the conduct for which the District was found liable. Furthermore, the District favorably discusses at length the Augustin case, which—as the District notes, Def.’s Proposal [317] 10—expressly approved the use of a non-random sample of fact witnesses from the class to determine general damages. Augustin, 2011 WL 4953982, at *1– 2.
As to “special” damages—such as damages for emotional distress, lost wages, or other types of compensatory damages other than general damages as defined above—the Court will decertify the class as to such individualized damages. While the Court previously certified plaintiffs’ claims for “monetary damages” generally pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, Barnes, 242 F.R.D. at 120, plaintiffs’ clarification at this stage of their intention to seek special damages on a classwide basis necessitates this Court’s clarification that its class certification Order does not extend to such damages. Because not all members of the strip search and overdetention classes will have been impacted in the same way, because of differences in those experiences as well as differences in class members’ backgrounds and personal characteristics, questions affecting individual members of the class will necessarily predominate over any questions of law or fact common to the class. See Fed. R. Civ. P. 23(b)(3).
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Therefore certifying such damages under Rule 23(b)(3) is inappropriate. Adjudication of claims
for special damages must proceed on an individual basis.2
D. Injunctive Relief
In plaintiffs’ second trial plan, they indicated their intention to file motions for injunctive
relief on various issues. Pls.’ Proposed Trial Plan [319] 6. First, plaintiffs indicated their intent
to seek injunctive relief related to the Court’s determination on summary judgment that the
DOC’s policy of strip searching court releases violates the Fourth Amendment and that the
District is liable. Id. Second, plaintiffs seek “over-detention relief,” id., arguing that the
District’s “10 p.m. cut-off rule” remains in effect. Id. at 12. Third, plaintiffs seek disgorgement
of the $3 million set aside in the Bynum settlement to build an inmate processing center, which
the District has yet to complete. Id. at 13. The District generally opposes any injunctive relief,
arguing, inter alia, that various changes to the DOC’s practices render such relief moot. Def.’s
Proposal [317] 12.
The Court finds that these issues related to injunctive relief are untimely and will defer
consideration of them until the conclusion of the liability trial on the disputed period. Any
discovery related to plaintiffs’ claims for injunctive relief shall take place at the same time as
other damages discovery.
2 The Court also notes that contrary to plaintiffs’ contention, Pls.’ Am. Proposed Trial Plan [326] 11, the use of random sampling to try “all types of compensatory damages” is by no means an accepted method among courts. While plaintiffs cite the Ninth Circuit’s decision in Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) to support the use of random sampling to try compensatory damages in a class action, Pls.’ Am. Proposed Trial Plan [326] 11, the decision in Hilao—by a divided panel and with a vigorous dissent—was justified by the unusual nature of the case, and has in any event been called into question by other courts. See Augustin, 2011 WL 4953982, at *16 n.16. Indeed, the U.S. Supreme Court, in a case that is famous for other reasons, recently disapproved a plan by a Ninth Circuit court to forgo individualized proceedings and try class members’ claims for backpay using “Trial by Formula”—that is, the selection by a statistician of a statistically valid, random sample of class members, whose claims for backpay would be tried and then extrapolated to arrive at an aggregate number for the class. Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011). Like plaintiffs in this case, the Ninth Circuit, in approving the randomsampling plan that the Supreme Court recently rejected, relied entirely upon its decision in Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 625–28 (9th Cir. 2010), overruled by Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
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IV. CONCLUSION Accordingly, it is hereby ORDERED that the Court will permit no further amendments to plaintiffs’ complaint;
and it is further ORDERED that no further summary-judgment motions will be permitted; and it is further ORDERED that limited fact and expert discovery as to liability shall be reopened. Only
such discovery as will assist the parties in determining how many overdetentions occurred from January 1, 2007 to February 25, 2008 will be permitted. No discovery on “process” and related issues shall be permitted. This limited discovery period shall begin today and close on April 6, 2012. Any updates to the parties’ expert reports shall be served on the other party no later than February 10, 2012; and it is further
ORDERED that the damages trial shall proceed following the trial on liability and following a period of damages discovery. The damages trial will concern only general damages, and each party will be permitted to present the testimony of up to fifteen (15) witnesses drawn from the overdetention and strip-search classes. Testimony from this non-representative sample of class members will be limited solely to the details of such class members’ overdetentions and strip searches, and no testimony concerning their backgrounds or the impact of the overdetentions or strip searches upon them personally shall be permitted. Other than expert testimony concerning the number of overdetentions and strip searches, the only expert testimony that shall be permitted will be such testimony as assists the jury in understanding the range of general damages that have been awarded by judges or juries in similar cases; and it is further
ORDERED that plaintiffs’ claims for special damages are decertified and must proceed on an individual basis; and it is further
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ORDERED that discovery as to injunctive relief and motions for such relief shall take place following the conclusion of the liability phase of this case.
SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on December 7, 2011.
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 Case 1:06-cv-00315-RCL Document 465-2 Filed 11/04/13 Page 1 of 28
CLASS ACTION SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (“Settlement Agreement” or “Agreement”) is entered into by and among Dernard Hawkins, David Peterson, Toney James Malloy, Maurice Williams, Razina Jones, Tyree Speight and Myra Diggs (individually and on behalf of the classes defined herein (collectively “Plaintiffs”)) and the District of Columbia, a municipal corporation (“Defendant” or “the District”). Plaintiffs and Defendant may be referred to, collectively, as “the Parties.”
Carl A. Barnes was a named class representative, but is now deceased. Accordingly, he will be removed as a class representative in the Preliminary Approval Order. Tyree Speight and Myra Diggs – both of whom testified at the March 2013 trial – were not originally named as class representatives, but will be added as class representatives in the Preliminary Approval Order. Mr. Barnes’ removal as a class representative shall be without prejudice.
I. RECITALS
WHEREAS, Plaintiffs filed a civil action, Barnes v. District of Columbia, No. 06-cv-315 (D.D.C.) on February 23, 2006 (the “Lawsuit”); and
WHEREAS, Plaintiffs asserted they represented a class of persons who were subjected to strip searches (“strip searches”) by the DOC after having become entitled to release, and a class of persons who were held by the DOC past their court ordered release dates (“overdetentions”); and
WHEREAS, Plaintiffs further alleged various violations of the U.S. Constitution, via 42 U.S.C. §1983; and
WHEREAS, the District Court certified two classes (defined below) on March 26, 2007; granted summary judgment on June 24, 2011, to Plaintiffs for a.) their Fifth Amendment claim for overdetentions at any time during the class period caused by the District’s “10 p.m. cut-off ordinance;” b.) their Fifth Amendment claim for overdetentions not caused by the District’s “10 p.m. cut-off ordinance” during the period September 1, 2005 to December 31, 2006; and c.) their Fourth Amendment claim for any qualifying strip search during all parts of the class period; and
WHEREAS, the District Court, on June 24, 2011, granted summary judgment to the District as to Plaintiffs’ Fifth Amendment claim for overdetentions not caused by the District’s “10 p.m. cut-off ordinance” during the period February 26, 2008 to the present; and
WHEREAS, after a jury trial in March 2013, the jury found the District not liable for overdetentions not caused by the District’s “10 p.m. cut-off ordinance” during the period January 1, 2007 to February 25, 2008; and
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WHEREAS, Defendant denies all liability to the defined classes and does not concede any infirmity in the defenses that it has asserted or intended to assert in these proceedings, and
WHEREAS, despite some of the foregoing rulings and decisions limiting the District’s liabilities, the parties have agreed, for purposes of this settlement only, that both classes will extend from September 1, 2005 through July 31, 2013, and
WHEREAS, the Plaintiffs believe that the terms of this Settlement Agreement are fair, reasonable, and adequate; that this Settlement Agreement provides substantial benefits to the class members; and that the settlement of the action on the terms set forth in this Settlement Agreement is in the best interests of the class members; and
WHEREAS, the Parties to this Settlement Agreement believe that settlement is in the best interests of the parties and will avoid additional lengthy and costly litigation;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties have agreed to compromise and settle all remaining claims and disputes related to this Lawsuit, subject to the terms and conditions below:
II. DEFINITIONS
1. “10 p.m. cut-off ordinance” means D.C. Official Code § 24-211.2(b)(6).
2. “Administrator” means a class administrator to review and determine the validity and amount of claims submitted by a Settlement Class Member (“SCM”) (as defined herein), according to the procedures set forth herein.
3. The “Bar Date” is the date by which any SCM must file any objections to this Settlement Agreement or to the request for attorney’s fees; or any request to be excluded from the class (opt-out). The Bar Date shall be calculated as the close of business on the 75th day after the last day of mailing Class Notice (the time frame for which mailing is up to two consecutive business days from beginning to end, as is addressed in ¶ 49).
4. The “Claims Filing Date” is the date by which any SCM who wishes to receive payment pursuant to the Settlement Agreement must file his/her Proof of Claim and Release Form (attached as Exhibit B). The Claims Filing Date shall be calculated as the close of business on the 120th day after the last day of mailing Class Notice (the time frame for which mailing is up to two consecutive business days from beginning to end, as is addressed in ¶ 49).
5. “Class Counsel” means William Claiborne, 2020 Pennsylvania Ave. NW, Suite 395, Washington DC 20000; Ralph Robinson, 8160 Skelton Circle, Falls Church, VA 22042; and Barrett S. Litt, of Kaye, McLane, Bednarski & Litt, 234 Colorado Blvd., Ste 230, Pasadena, CA 91101.
6. The “Class Notice” means the notice to the Class regarding settlement, to be sent to Class Members in a form substantially similar to that attached hereto as Exhibit C, and such
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other summary notice to be published in accordance with the terms of this Settlement Agreement.
7. The “Class Period” is September 1, 2005 to July 31, 2013;
8. The Settlement Agreement “Database”(which shall include information from JACCS and the Release Discrepancy Database) is the information provided in electronic form by the Defendants to the Administrator and Class Counsel no later than fourteen (14) days from the date that the contract with the Administrator is finalized, as set out in ¶ 44, below. It shall include, to the extent available, the name, address at time of booking, date of birth, Social Security Number, telephone number, closest relationship contact information, and any other computerized data relevant to determining Class Membership or notifying Class Members, including the date(s), time(s), and location(s) of incarceration and release, during the class period defined in ¶ 7.
9. “DOC” means the District of Columbia Department of Corrections.
10. The “Effective Date” means the date upon which a judgment entered by the Court approving the Settlement Agreement becomes final. If no objections to the Settlement Agreement have been filed, the Effective Date will be the date that the Court signs the final order approving the Settlement Agreement. If one or more objections have been filed, the Effective Date will occur on the expiration of the time to appeal the Court’s final order—provided no such appeal is, in fact, filed. If one or more objections have been filed, and a Notice of Appeal of the Court’s final order is filed, the Effective Date will be upon exhaustion of all appeals and petitions for writs of certiorari, the final resolution of which upholds the Settlement Agreement.
11. An “Opt-Out” is any Class Member who files a timely request for exclusion pursuant to the terms of this Settlement Agreement, as specified in ¶ 3.
12. The “Proof of Claim Form” means the Proof of Claim and Release Form required to be used to make a claim for payment under this settlement. The Proof of Claim form utilized will be materially similar to the copy of the proposed Proof of Claim and Release Form attached as Exhibit B.
13. “The District” means the District of Columbia, together with past, present and future officials, employees, representatives, attorneys, and/or agents of the District.
14. “Strip Search Class,” as certified in the Court’s Order of March 26, 2007, means those persons who, from September 1, 2005, up to July 31, 2013, were: (i) in the custody of the DOC; (ii) taken to court from a DOC facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance; (iv) were not the subject of any other pending cases or cases which imposed any condition of release other than personal recognizance; (v) were not the subject of any detainer or warrant; (vi) were returned from court to the DC Jail or CTF or other District facility, to be processed out of DOC custody; and (vii) were subject to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons; before being released, regardless of whether he or she was overdetained.
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15. “Overdetention Class,” as certified in the Court’s Order of March 26, 2007, means those persons who, from September 1, 2005, up to July 31, 2013, were (a) incarcerated in any DOC facility; and (b) who were not released by midnight on the date on which the person was entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
16. A “Class Member” means any member of the classes as defined above.
17. A “Settlement Class Member” or “SCM” means any member of the classes as defined above in the combined ¶¶ 14 and 15, including representatives, successors and assigns, who does not file a valid and timely request for exclusion as provided for in ¶ 3 of this Settlement Agreement.
18. “Validity of the Claim” means a check of the inmate jacket to verify that the person qualifies as a class member, i.e., was either strip searched or over-detained during the class period, and, if over-detained, for how long.
III. DISCLAIMER OF LIABILITY
19. This Settlement Agreement is for settlement purposes only, and neither the fact of, nor any provision contained in, this Settlement Agreement or its exhibits, nor any action taken hereunder, shall constitute, be construed as, or be admissible in evidence as, any admission of the validity of any claim or any fact alleged by any Plaintiff or Class Member in either this action or in any other pending or future action or of any wrongdoing, fault, violation of law, or liability of any kind on the part of the District or admission by the District of any claim or allegation made in this action or in any other action. Defendant denies all allegations of wrongdoing and denies any liability to Plaintiffs or to any Class Member. The Parties have agreed that, in order to avoid long and costly litigation, this dispute should be settled pursuant to the terms of this Settlement Agreement, subject to the approval of the Court.
IV. TERMS AND EFFECT OF SETTLEMENT AGREEMENT
20. This Agreement is a contract binding upon the Parties. The Court shall retain jurisdiction over this matter and the Parties for the purpose of enforcing the terms of this Agreement. Plaintiffs’ acceptance of this Agreement is reflected by Class Counsel’s signature(s) upon this Agreement and is binding on the Class, subject to final approval by the Court.
21. The Parties enter into this Agreement solely for the purposes of this settlement and implementation of the settlement. In the event that Final Approval of this Settlement Agreement is not obtained or the Settlement Agreement is deemed null and void for any reason, the Parties will revert to the positions they occupied prior to the execution of the Agreement, and nothing herein shall be deemed to waive any of the Parties’ claims, arguments, objections, or defenses.
22. The Parties agree to move the Court, in the Joint Motion for Preliminary Approval of Settlement, to vacate the Court’s decertification of special damages (Dkt. No. 328; Dec. 7, 2011). Should the Court decline to vacate that decision, this Agreement is null and void.
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23. The Parties agree that all objections and requests to be heard will be submitted to the Court and counsel for the parties in writing and at least 30 days before the scheduled Fairness hearing.
24. Upon execution of this Agreement by the Parties, the Parties will notify the Court of this Settlement. The Parties will move the Court for an order preliminarily approving the settlement and setting a fairness hearing. Prior to the fairness hearing, and as part of the Final Approval Order, the parties will move to dismiss the case with prejudice on the precondition that the settlement is finally approved, and enter a proposed consent order dismissing the case with prejudice. The proposed Final Approval Order will also provide that the Court shall retain jurisdiction to enforce the Settlement Agreement.
25. A SCM who complies with the requirements set forth in this Settlement Agreement will be paid specified sums determined by the settlement distribution process set forth herein, which payment shall be in full satisfaction of all claims of that SCM.
26. The Settlement Agreement, once finally approved and effective (see definition of effective date in ¶ 10), resolves in full all claims, agreements, actions, cases, causes of action, compromises, controversies, costs, damages, debts, demands, disputes, expenses, judgments, liabilities, payments, promises, claims for attorneys’ fees, and suits of any nature whatsoever, whether or not known, against the District or its current and former agents, servants, officers, officials, and/or employees, in their individual and official capacities, by all of the SCMs, including the named Plaintiffs, their agents, heirs, and assigns, involving violations of law or constitutional rights, including, without limitation, their Fourth Amendment rights, their Fifth Amendment rights, or any other federal or District of Columbia law, regulation, duty, or obligation, or any other legal theory, action or cause of action, which are based upon or could be based upon or arise from the facts alleged in the Lawsuit, i.e., claiming damages for overdetentions or strip searches occurring while in custody of the DOC that fit within the definition of the classes listed herein. When the Settlement Agreement is final, as of the Effective Date, all SCMs, including the named Plaintiffs, waive all rights to any and all claims relating to overdetentions or strip searches by the District that occurred during the Class Period under any theory or cause of action whatsoever under District of Columbia law and federal law. This waiver and release shall include a full release and waiver of unknown rights based on claims relating to overdetentions or strip searches by the District that occurred during the Class Period. The Final Approval Order shall contain such a release and provide that it is binding on Class Members, even if they never received actual notice of the Lawsuit or this Agreement.
27. It is the Parties’ intent that, after the Effective Date, this Settlement Agreement bars any and all named plaintiffs and SCMs, and their privies, from bringing a subsequent suit or enforcement action in this court, or another, alleging the same or similar claims for relief as contained in the complaint or in any amended complaints in this Lawsuit, with respect to any strip search or overdetention by the District that occurred or may have occurred during the Class Period specified herein, based upon events occurring prior to the execution of the Settlement Agreement. Notwithstanding the foregoing, and for the avoidance of doubt, the preceding sentence shall not bar or limit any action to enforce the terms of this Agreement.
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28. The Parties waive and assume the risk of any and all claims that exist as of the date this Agreement is signed, which that Party does not know of or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, with respect to either facts or law, and which, if known, would materially affect his/her/its decision to enter into this Agreement.
29. This Settlement Agreement, together with its exhibits, contains all the terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant proceeding, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Settlement Agreement shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except as expressly provided herein.
30. The Parties agree that failure to comply with the provisions of this Agreement shall not be a basis for entry of contempt or sanctions against the District.
31. This Settlement Agreement is subject to and conditioned on a Fairness Hearing conducted by the Court and the Final Approval of this Settlement Agreement and the issuance of the final order and judgment of dismissal by the Court, providing the specified relief as set forth below, which relief shall be pursuant to the terms and conditions of this Settlement Agreement and the Parties’ performance of their continuing rights and obligations hereunder. The Order and Judgment shall be deemed final only on its “Effective Date” as defined in ¶ 10. Such final Order and Judgment shall:
a. Dismiss with prejudice all claims in the action as to the District including all claims for monetary damages, declaratory relief and injunctive relief, each side to bear their own costs and fees except as otherwise provided for in this Settlement Agreement;
b. Order that all SCMs are enjoined from asserting against the District, any and all claims that any SCM had, has or may have in the future arising out of the facts alleged in the Lawsuit;
c. Release the District from the claims that any SCM has, had or may have, against the District arising out of the facts alleged in the Lawsuit;
d. Determine that this Settlement Agreement is entered into in good faith, is reasonable, fair and adequate, and in the best interest of the Classes; and
e. Reserve the Court’s jurisdiction over the Parties to this Settlement Agreement. Disagreements between the parties on any disputes or unresolved aspects of the final Order and Judgment shall be subject to mediation before the mediator used by the Parties in July 2013. If mediation is not successful, the matter shall be brought to the Court for resolution. In no event will any party be liable in contempt for any alleged or demonstrated violation of the final Order and Judgment, nor will any party be entitled to any attorney’s fees for any additional proceedings (in addition to those set forth herein) for any reason.
32. The Parties will take all necessary and appropriate steps to obtain preliminary and final approvals of the Settlement Agreement, and dismissal of the action with prejudice, all
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parties bearing their own fees and costs unless otherwise set forth in this Settlement Agreement. If the Court gives final approval of this Settlement Agreement, and if there is an appeal from such decision, the District will not oppose Plaintiffs’ efforts to defend the Settlement Agreement.
33. The undersigned representatives of the Parties certify that they are fully authorized to enter into and to execute the terms and conditions of this Agreement and to make such Agreement fully and legally binding upon and enforceable against every Party on whose behalf they have executed this Agreement.
34. The dates by which certain actions are to be taken will be established in the Preliminary Approval Order.
V. RESOLUTION AND PAYMENT OF CLAIMS TO CLASS MEMBERS
35. The parties will jointly move the Court, at the same time as moving for Preliminary Approval of the settlement, to vacate its December 7, 2011 class decertification order (regarding special damages) and to adopt, for purposes of the settlement only, the class definition based on the combined ¶¶ 14 and 15 above. That class definition includes both liability and all damages.
36. The District will pay up to $2.9 million to SCMs as detailed below.
37. All funds not distributed to SCMs will revert to the District of Columbia General Fund.
38. The Parties agree that this is a claims-made settlement, requiring a SCM to formally submit a valid and completed Proof of Claim and Release Form, under penalty of perjury, in order to qualify and receive payment under this Settlement Agreement. In addition to and separate from any other payments called for in this Agreement, the District agrees to pay a SCM who complies with the requirements set forth in this Settlement Agreement according to a tier payment process as follows:
a. Strip Search Class Member: A Strip Search Class Member is a SCM who was subjected to a post-release strip search during the Class Period (as defined in ¶14). The District agrees to pay a SCM who qualifies as a Strip Search Class Member a sum of $1,000.00, no matter how many times the SCM was subjected to a strip search during the Class Period.
b. Overdetention Class Member: A SCM who was overdetained during the Overdetention Class Period (as defined in ¶15). The District agrees to pay a SCM who qualifies as an Overdetention Class Member a sum of $370.00 for the first calendar day of overdetention, plus $250 per day for each succeeding calendar day of overdetention.
39. Notwithstanding the amounts set forth above to be paid to each class member, the parties have agreed to a maximum payout of $2.9 million. Accordingly, the amounts to be paid Class Members (not including class representatives) will be adjusted if the amount to be awarded SCMs exceeds $2.9 million. In that event, the amount that SCMs receive will be adjusted on a
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pro-rated basis, which would result in payments to individual SCMs of amounts lower than those set forth above.
40. The Parties agree that a cy pres fund is not necessary or warranted and no cy pres fund will be created under the terms of this settlement.
41. The District will pay $475,000 (less any amounts deducted for review of claims, as set out in Paragraph 45, below) to the DOC for programs for the benefit of inmates, which funds shall be separate from and in addition to any other sums described in this Agreement. These funds will not be disbursed until the review of claims, set out in Paragraph 45, below, is complete. The District will serve on Plaintiffs’ counsel a summary of the allocation of such funds, including a brief description of each program, how it benefits those being held in custody, and the amount of each allocation, no later than August 31, 2014.
42. The District will pay $75,000, total, for the named plaintiffs and testifying plaintiffs. Allocation among the named and testifying plaintiffs will be determined by Class Counsel.
43. All payments by the District set forth in this Agreement are subject to the availability of an appropriation, and will not be made until the fiscal year starting October 1, 2013, at the earliest.
VI. NOTICE AND ADMINISTRATION
44. The District will pay up to $250,000 for class administration and notice costs to an Administrator. The duties of the Class Administrator shall be set forth in greater detail in the Scope of Work to be sent to prospective Class Administrators. A contract for a Class Administrator must be finalized no later than Twenty-one (21) days after the Court grants preliminary approval of the Settlement Agreement. Once the contract is finalized, this clause is no longer conditional.
45. The District will pay up to $75,000 for a group of three third-party reviewers to review all claims made by SCMs. The parties will both solicit applications for third-party reviewers from among persons with expertise who are not former employees of the D.C. Department of Corrections. All applicants must be willing to perform the review for twentyeight dollars ($28.00) per hour. From among eligible applicants, the District will select one third-party reviewer, and the Plaintiffs will select the second. The two selected third-party reviewers will then select the third individual. In performing the review, each reviewer will be randomly assigned jackets from potential SCMs for a first review. If the first reviewer concludes that the SCM has a valid claim, that ruling will stand. If the first reviewer concludes that the SCM does not have a valid claim, the other two reviewers will also review that SCMs jacket. The ruling by the majority of the three reviewers will then be final. In the event $75,000 proves insufficient to complete the review of claims, the District will utilize the following sources of funds, in order, until review is complete: (1) any funds remaining from the $250,000 allocated for Class Administration; (2) any funds remaining from the $425,000 estimated for plaintiffs’ costs; (3) the $475,000 allocated for inmate-processing at the DOC.
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46. Any funds allocated but not spent under the terms of this Agreement, including funds allocated to class members, shall revert to the District of Columbia General Fund.
47. The Administrator shall be responsible for providing Class Notice. This shall comprise mailing Class Notice and a Proof of Claim and Release Form by regular mail to all Class Members’ last known address. The list of potential Class Members to-be-noticed shall be provided by Plaintiffs. The Administrator shall also use normal and customary means to search for a Class Member’s last known address, including the use of a postal database, when mail is returned, or whenever else it is appropriate in order to reasonably notify Class Members. In the event a Notice to a Class Member’s last known address is returned as undeliverable, this will also include making determinations of the location and current mailing address of Class Members who are in state or federal prison, and re-sending notices to them at that address.
48. The Class Notice shall describe the particulars of the case, provide the class definition, provide information for claimants to contact the Administrator for a claim form, and other usual and customary information. The Class Notice will be materially similar to the proposed Class Notice attached to this Settlement Agreement as Exhibit C.
49. The Administrator shall complete the mailing of Class Notice within two consecutive business days. The second day of such mailing is the first day of the period for calculating the “Bar Date” and the “Claims Filing Date” as provided in ¶¶ 3 and 4.
50. The Administrator shall be responsible for publishing a summary Class Notice as follows:
a. The newspaper. In a newspaper of general circulation, notice shall run on four separate days, a week apart, over a four week period and shall be at least ¼ page in size; and
b. Internet: Notice shall be placed on the District’s Department of Corrections website for One Hundred Twenty (120) days from the mailing of class notice ; and
c. Correctional Facilities: Notice shall be placed in a prominent location for One Hundred Twenty (120) days from the mailing of class notice at the D.C. Jail and Correctional Treatment Facility.
51. The Administrator shall be responsible for providing and receiving Proof of Claim and Release Forms.
a. The Administrator shall, periodically, provide to the DOC copies of Proof of Claim and Release Forms received.
b. For those Claim and Release Forms that are sufficiently filled out and executed, the DOC shall retrieve the relevant claimant jackets, and provide them to the third party reviewers, described in ¶ 45. The DOC will make all reasonable efforts to locate the relevant claimant jackets given the information provided on the Claim and Release Forms.
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c. The Administrator shall post the relevant settlement documents (specifically, the settlement agreement, the preliminary approval order, the claim form, the class notice, the motion for attorney’s fees court, the Final Approval Order and, if separate, the final order regarding attorney’s fees and costs) on the internet on the website established for this case. Information about how to access this information will be contained in the class notice. The information shall remain on the internet until all the checks to class members are mailed, and shall be periodically updated to address the timing of such mailings.
52. A Proof of Claim and Release Form shall be deemed timely submitted when received by the Administrator, or postmarked, on or before the Claims Filing Date. Facsimile or electronic mail filings are not acceptable, will be deemed untimely filed, and shall not be considered by the Administrator.
53. If a Class Member submits a timely claim form that is deficient in some respect, the Administrator shall provide written notice by First Class Mail and a 30 day time limit to provide a proper claim form, which notice shall inform the Class Members of what s/he must do in order to submit a proper claim. Failure to cure the deficiency within the 30-day time limit will bar any further rights for consideration of eligibility. Failure to fully and completely execute the individual Proof of Claim and Release Form shall constitute a deficiency under this Paragraph, and all payments to Class Members are expressly conditioned on the full and complete execution of that release.
54. Untimely filed Proof of Claim and Release Forms shall be rejected by the Administrator and no payment shall be made.
55. The Administrator shall make payments to SCMs who have filed timely claims in accordance with this Settlement Agreement within a reasonable time, with a goal of making payment within 120 days after the Effective Date. If a check to a SCM is not cashed within three months of its mailing, the Administrator shall hold the funds for five additional months, during which time it shall make reasonable efforts to contact the person to whom the un-cashed check was written to make arrangements for its cashing or reissuance. Any such funds not cashed within ten months of its mailing shall revert to the District.
56. The Administrator shall not make payment to any SCM until all claims have been submitted to the Administrator pursuant to the terms of this Settlement Agreement, all verified claims and payments have been calculated, and all disputes relating to claims have been resolved. However, if the amount of the claims is such that all claims – whether they are valid or not – amount to less than the $2.9 Million allocated to SCMs under ¶¶35 and 38, then payments for claims that are confirmed valid shall be made as soon as possible regardless of the pendency or possibility of disputes relating to other claims.
VII. CLASS COUNSEL FEES
57. In addition to and separate from any other payments called for in this Agreement, the District will, subject to final approval by the Court after SCMs have had the opportunity to file any objections, pay Class Counsel $2 million, plus costs not to exceed $425,000.00. These
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payments represent a full and final settlement of all claims for past, present and future attorneys’ fees and all past, present and future ordinary and extraordinary costs related to the Lawsuit, including the cost of determining potential class members to receive notice, as described in ¶ 47.
58. Class Counsel agrees and acknowledges that they are personally and solely responsible for any further taxes owed, if any, on the payments in ¶ 57 by any taxing authority, whether federal, state or local. Plaintiffs and Class Counsel acknowledge and understand that the District will report the payments to counsel set forth in this Agreement to the U.S. Internal Revenue Service. Reporting of payments to class members shall be the responsibility of the Class Administrator.
59. Payment to Class Counsel shall be made by wire transfer as directed by class counsel immediately, but in any event no more than 30 days after the Effective Date. The District’s obligation to make this Payment shall not accrue until Class Counsel has provided the information necessary to effectuate payment administratively, including the receipt of an original W-9 form and registration in the District’s electronic procurement system, “PASS,” for each payee.
VIII. PAYMENT LOGISTICS AND DISTRICT PROCUREMENT
60. All payments by the District set forth in this Agreement are subject to the availability of an appropriation, and will not be made until the fiscal year starting October 1, 2013, at the earliest.
61. Subject to ¶ 59, the District will submit the payments proposed in this Settlement Agreement for appropriation once the Court has given its preliminary approval. These appropriation requests will be processed as expediently as possible.
62. The Administrator cannot begin work under this agreement until payment is appropriated by the District for the Administrator contract.
IX. EXCLUSION FROM SETTLEMENT CLASS—OPT OUTS
63. Any Class Member who wishes to be excluded from the Settlement Class, i.e. any “Opt-Out” as defined in ¶ 11, must submit a request to be excluded from the class. The request for exclusion must be delivered to the Administrator, or postmarked, on or before the Bar Date or as the Court may otherwise direct.
64. Each Class Member who chooses not to Opt-Out from this Settlement shall be deemed to have submitted to the jurisdiction of the Court with respect to his/her claim.
65. Any Class Member who does not Opt-Out as set forth in this Settlement Agreement, shall be deemed conclusively to have become a SCM and to be bound by the Settlement Agreement and all subsequent proceedings, orders and judgments herein.
66. Any Class Member who exercises an Opt-Out, as set forth in ¶ 60, shall not share in any monetary benefits provided by this Settlement Agreement.
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67. The Administrator will report to the District’s counsel and Class Counsel all OptOuts upon receipt.
X. INTEGRATION
68. This Settlement Agreement supersedes all prior communications regarding the matters contained herein between the signatories hereto or their representatives. This Settlement Agreement is an integrated agreement and contains the entire agreement regarding the matters herein between the signatories hereto and no representations, warranties or promises have been made or relied on by any party hereto other than as set forth herein.
69. This Agreement may not be amended or modified in any respect other than by an agreement in writing signed by the Parties and only if such amendment is agreed to prior to notice to the Class Members and Final Approval by the Court. This Agreement creates no obligations or duties on the part of the Parties other than as specifically stated in this Agreement. The Parties stipulate, agree, and acknowledge that nothing in this Agreement may be used by any person or entity for any purpose in any legal proceeding other than as stated specifically herein.
70. This Settlement Agreement does not and is not intended to create any rights that can be relied upon or enforced by individuals who are not Parties (which term “parties” includes SCMs) to this Lawsuit. The Parties stipulate, agree, and acknowledge that this Agreement is not intended to create any third-party beneficiaries.
71. None of the obligations and duties of any Party set forth in this Agreement may be assigned or delegated to any other person without the express, prior written consent of all other Parties. This Agreement is not severable except with the prior written consent of all Parties.
72. All exhibits attached hereto are incorporated herein by reference and made a part of this Agreement. This Settlement Agreement was drafted by counsel for the parties hereto, and there shall be no presumption or construction against any party. This Agreement shall be governed by and construed and enforced in accordance with applicable federal statutes, federal decisional law, and the laws of the District of Columbia.
73. Provided that all Parties hereto execute a copy of this Agreement, the Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Executed copies of this Agreement may be delivered by facsimile transmission or other comparable means. This Agreement shall be deemed fully executed and entered into on the date of execution by the last signatory required hereby.
XI. PRELIMINARY APPROVAL, FAIRNESS HEARING, AND FINAL ORDER OF APPROVAL
74. Before this Settlement Agreement becomes final and binding on the Parties, the Parties shall file a Joint Motion for Preliminary Approval of Settlement, and therein to request that the Court vacate its decertification of special damages (Dkt. No. 328; Dec. 7, 2011). Should the Court decline to vacate that decision, this Agreement is null and void.
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75. Before this Settlement Agreement becomes final and binding on the Parties, the Court shall hold a Fairness Hearing to determine whether to enter a Final Order of Approval. A proposed Final Order of Approval shall be submitted to the Court. In the event that a Final Order of Approval consistent with the terms set forth herein is not entered, either Party has the right to withdraw from the settlement.
XII. NO ADMISSION OR WAIVER
76. The Parties acknowledge and agree that all undertakings and agreements contained in this Settlement Agreement have been agreed to solely for the purpose of finally compromising and resolving all questions, disputes and issues between them relating to the litigation. This Settlement Agreement and any proceedings taken pursuant hereto shall not in any event be construed as, interpreted as, or deemed to be evidence of an admission or concession by either party for any purpose, or deemed to constitute a waiver of any legal position or any defenses or other rights which either of the Parties might otherwise assert in any context. Neither this Settlement Agreement nor any of its provisions nor any other documents related hereto nor any negotiations, statements or testimony taken in connection herewith may be offered or received in evidence in, or used for any other purpose, or in any suit, action or legal proceeding which either of them may now have or in the future have with any other person, as an admission or concession of liability or wrongdoing or as any admission or concession on the part of either party, except in connection with any action or legal proceeding to enforce this Settlement Agreement. The Parties have reached this Settlement Agreement on a commercial basis through arms-length negotiations and to avoid the costs and delays of further disputes, litigation and negotiations among them. This Settlement Agreement has been entered into without any concession of liability or non-liability whatsoever and has no precedential or evidentiary value whatsoever.
XIII. DUTY TO DEFEND AGREEMENT
77. The Parties and their counsel agree to defend this Agreement. Counsel for Plaintiffs may not undertake the representation of objectors or persons who opt out of the settlement in any matter substantially related to the Released Claims if that representation conflicts with Counsel for Plaintiffs’ obligations as Class Counsel; however, this prohibition is null and void to the extent it conflicts with the D.C. Rules of Professional Conduct including but not limited to Rule 5.6(b). The Parties shall take no positions contrary to, or inconsistent with, the terms of the Agreement.
DATED: ___________ By and through Office of the Attorney General
IRVIN B. NATHAN Attorney General for the District of Columbia
By: ______________________________ Ellen Efros Deputy, Public Interest Division
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Attorneys for Defendant
DATED: ____________ By: _______________________ William Claiborne Attorneys for Plaintiffs
DATED: ____________ By: _______________________ Ralph Robinson Attorneys for Plaintiffs
DATED: ____________ By: _______________________ Barrett S. Litt Attorneys for Plaintiffs

LIST OF EXHIBITS REFERENCED IN SETTLEMENT AGREEMENT

Exhibit A
Exhibit B Exhibit C

The Settlement Agreement is this Exhibit to the Preliminary Approval Order
Proof of Claim and Release Form
Class Notice

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PROOF OF CLAIM AND RELEASE FORM in Barnes v. District of Columbia, United States District Court for the District of Columbia, Case 06-0315 (RCL)
I, ________________________ [print name], was incarcerated in the D.C. Jail or other facility operated by the D.C. Department of Corrections, at some point between September 1, 2005, and July 31, 2013; OR
I, ________________________ [print name], am the personal representative of __________________ [print name of deceased], who has since died, but was incarcerated in the D.C. Jail or other facility operated by the D.C. Department of Corrections, at some point between September 1, 2005, and July 31, 2013:
Instructions for completing the following questions: Below you are asked to provide information to the best of your recollection. However, even if you do not know this information you may qualify as a class member. Fill out whatever information you know. Questions that you do not know may be left unanswered. These questions are solely intended to facilitate finding you in the D.C. Department of Corrections’ records. Those records will ultimately determine if you qualify as a class member.
You should, however, check the box at the beginning of each section (asking if you were overdetained or if you were strip searched after becoming entitled to release) if you believe it applies to you. Failure to check either of these boxes may result in your claim not being evaluated with respect to that class.
The following is true to the best of my recollection and knowledge (please check all that apply and answer the follow-up questions, which are necessary to accurately process claims):
______ I (or he or she) was overdetained as follows:
I (or he or she) was incarcerated from _________, ___, 20___ until _________, ___, 20___ (please be as precise as possible, as providing these dates will help to verify potential claims).
I (or he or she) became entitled to release by Court order, or the expiration of the sentence, on _________, ___, 20___.
I (or she or he) was not, in fact, released from the D.C. Jail or other facility operated by the D.C. Department of Corrections until _________, ___, 20___.
______ I (or he or she) was strip searched as follows:
I (or he or she) was taken to court from a DOC facility on _________, ___, 20___and was ordered released by the court or otherwise became entitled to release by virtue of the court appearance. Instead, I (or he or
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she) was returned from court to the D.C. Jail or CTF or other District facility, to be processed out of DOC custody and was subjected to a strip search and/or visual body cavity search before being released.

Current Address
______________________________ ______________________________ ______________________________

Address of inmate at the time of incarceration: ______________________________ ______________________________ ______________________________

Phone Number:_____________
Date of Birth of Inmate:________________
SS#: _______________________________
Other names, aliases under which you may appear in the D.C. records: ________________
_________________________________________________________________________
I do solemnly swear, subject to the penalties of perjury, that the information provided on this form is true and correct to the best of my recollection and knowledge. By my signature, and in exchange for the sums to be provided as described in the Class Notice, I (or the estate for which I am personal representative) hereby waive and release all rights to any and all claims relating to overdetentions or strip searches by the District under any theory or cause of action whatsoever under District of Columbia law and federal law, up to and including July 31, 2013.

DATE: ________________

SIGNED:

_____________________________ Name

You must mail this completed form, before _______, 2013, to: Barnes Class Administrator, [[address]]

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Class and Settlement Notice
NOTICE OF CLASS ACTION, PROPOSED CLASS SETTLEMENT AND HEARING RE: Barnes, et al. v. District of Columbia., United States District Court for the District of Columbia, Case No. 06-0315 (RCL).
This Class and Settlement Notice is available in Spanish. Call toll-free________ or visit the following website: _________________.com. (in Spanish)
If, between September 17, 2005, and July 31, 2013, you were incarcerated in the District Columbia Jail and either strip searched after the time you were ordered or entitled to release, or were not released by midnight of the day on which you became entitled to release,
District of Columbia records show that you may be a CLASS MEMBER. Therefore, you may be entitled to receive MONEY. To receive any money in this pending Settlement, you must fill out and mail a Claim Form.
There is currently pending a class action lawsuit involving such issues in the United States District Court for the District of Columbia. The Court has certified the case as a class action, and there is a proposed Settlement. If the proposed Settlement receives final court approval, CLASS MEMBERS are eligible to receive money.
Your Claim Form must be postmarked or received by the Administrator
no later than _________ 2014. If you wish to “opt out,” or be excluded from the Settlement, your opt-out letter must be postmarked or received by the Administrator by __________, 2014.
If You Wish to Claim Money, Fill Out and Mail the Enclosed Claim Form Today. Do Not Wait. If you do not submit a claim on time, you will not receive any money, but will still be bound by
the Settlement.
If you receive more than one Claim Form, sign and file all Claim Forms you receive.
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NOTICE TO CLASS MEMBERS OF PROPOSED SETTLEMENT AGREEMENT
PLEASE READ THIS NOTICE CAREFULLY AND COMPLETELY. A SETTLEMENT HAS BEEN PROPOSED IN THE BARNES CASE THAT MAY AFFECT THE RIGHTS OF CERTAIN PERSONS WHO WERE INCARCERATED IN THE DISTRICT OF COLUMBIA JAIL AND OTHER FACILITIES.
Why did you get this notice?
1. You should read this notice because you may be entitled to claim money from a class action settlement. The purpose of this notice is to inform you about a proposed settlement in the Barnes lawsuit. The settlement may affect the rights of certain people who were incarcerated in facilities operated by the District of Columbia’s Department of Corrections. The settlement is not final. In order for the settlement to be final, the judge in this case, the Honorable Royce Lamberth, will hear from class members who wish to be heard and will then decide if the settlement is fair, reasonable, and adequate. If this notice applies to you, you will have an opportunity to file a claim, and indicate in writing if you object to the settlement, before the judge decides whether to approve it. However, to receive funds from this lawsuit, you must file the accompanying proof of claim within the time explained in this Notice.
2. The rest of this notice explains the Barnes lawsuit, how to determine whether this lawsuit applies to you, the key terms of the proposed settlement, and how you can file the appropriate papers regarding your participation in the settlement.
Does this notice apply to you?
3. This notice applies to you if you were incarcerated in the D.C. Jail, the Correctional Treatment Facility (“CTF”), or any other facility operated by the Department of Corrections, at any time from September 1, 2005 through July 31, 2013 (“the Class Period”), and were not released by midnight on the date on which you were entitled to be released. This notice also applies to you if you were incarcerated during the time period above, were taken to court from a DOC facility, were ordered released by the court or otherwise became entitled to release by virtue of the court appearance, and were strip searched prior to your release.
What is this lawsuit about?
4. The Barnes lawsuit was brought in 2005 by a group of former inmates who believed that the District of Columbia’s Department of Corrections kept them incarcerated past the time they were supposed to be released, or subjected them to a strip search after they had been to court and were entitled to release because of the court appearance. The people who initially brought the lawsuit, called the “named plaintiffs,” are Carl A. Barnes, Dernard Hawkins, David Peterson, Toney James Malloy, Maurice Williams, and Razina Jones. They filed the lawsuit on their own behalf and on behalf of all other persons like them (“plaintiffs”). Carl A. Barnes is no longer a named plaintiff, and two additional named plaintiffs – Tyree Speight and Myra Diggs – have been added.
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5. The plaintiffs sued the District of Columbia, whose agency, the Department of Corrections, operates the D.C. Jail and other facilities at which inmates are incarcerated. The District is the “Defendant” here, the party being sued.
6. The plaintiffs and the defendant have written down their agreement in a document called a “Settlement Agreement.” Although, on __________, the judge preliminarily approved the agreement, the settlement is NOT FINAL. The settlement will be final only after the judge approves it after holding a public hearing called a “fairness hearing.” Before the judge decides to approve the settlement, you can tell the judge if you do not like any part of it by filing in writing what is called an “objection”, and you can ask the judge to let you speak at the fairness hearing (although whether he will do so is strictly up to him) .
What are the key terms of the Settlement Agreement?
7. The Settlement Agreement provides for monetary compensation for each plaintiff, based on the length of time they were “overdetained” and for qualifying strip searches. In exchange, the settlement class members are releasing all claims related to overdetentions or strip searches for the class period.
8. Without admitting any wrongdoing and to avoid litigating these claims, the Defendant has agreed to pay Six Million and Two Hundred Thousand Dollars and Zero Cents ($6,200,000.00) (“the Total Settlement Amount”), which is divided as follows
a. Two Million and Nine Hundred Thousand Dollars and Zero Cents ($2,900,000.00) to be paid to the settlement class members (“Distribution Fund”);
b. Two Million Dollars and Zero Cents ($2,000,000.00) for Plaintiffs’ counsel for attorneys’ fees and Four Hundred Twenty Five Thousand Dollars and Zero Cents ($425,000.00) for costs incurred by Plaintiffs’ counsel;
c. Seventy Five Thousand Dollars and Zero Cents ($75,000.00) for special payment to named Plaintiffs and other Plaintiffs who testified at trial, for their special assistance in the case;
d. up to Seventy Five Thousand Dollars and Zero Cents ($75,000.00) for third-party review of disputed claims;
e. Four Hundred Seventy Five Thousand Dollars and Zero Cents ($475,000.00) to the Department of Corrections to improve inmate processing; and
f. up to Two Hundred Fifty Thousand Dollars and Zero Cents ($250,000.00) for costs of administering the class settlement. Class Counsel’s attorneys’ fees and costs remain subject to Court approval. The Court will decide whether to approve these terms at the “Fairness Hearing.”
9. The Distribution Fund will be distributed to Settlement Class Members who submit timely, valid Proof of Claim and Release Forms. The payments to Settlement Class Members who submit timely, valid Proof of Claim and Release Forms shall be determined and paid according to the following formula:
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a. Each Settlement Class Member who was subjected to an unlawful strip search during the Class Period will receive $1,000.00, no matter how many times he or she was strip searched.
b. Each Settlement Class Member who was overdetained during the Class Period will receive $370.00 for the first day of overdetention, plus $250 per day for each succeeding full day of overdetention.
c. Each Settlement Class Member may receive lower amounts. The Distribution Fund shall be distributed according to the number of valid and timely Proof of Claim and Release Forms received. The amounts to be paid Settlement Class Members (not including class representatives) will be adjusted if the amount to be awarded based on valid claims exceeds $2.9 million. In that event, the amount that Settlement Class Members receive will be adjusted on a pro-rated basis, which will result in payments to individual Settlement Class Members of amounts lower than those set forth above.
d. Whether a claim is valid or not will be determined by review of records of the D.C. Department of Corrections. The proper and complete execution of your claim and release form is very important to that process because it will assist finding you in the D.C. records. If D.C. is unable to locate you in its records, your claim cannot be evaluated, and therefore cannot be paid. If D.C. is able to locate you and your incarceration in its records based on your claim form, it will forward them to a neutral group of third-party reviewers who will determine the validity of the claim. Determinations by the third-party reviewers are final and not subject to appeal. Because your claim form is so critical to determining the validity of your claim, please be sure to complete it correctly, as your claim may not be able to be successfully processed if it is not accurate.
e. The settlement checks will be void if not cashed within six months.
10. The parties expect that the amount allocated for each class will be sufficient to pay each class member the amounts set forth previously based on the experience that not all class members file claims. However, it is possible that the parties are wrong, and that the amounts to be paid to class members will have to be adjusted. Thus, it is important that you understand that this is possible.
Why Is This A Class Action?
11. In a class action, one or more persons, called the Class Representative(s), sue on behalf of a group of people who have similar claims – the Class Members. One court then resolves the issues for all Class Members, except for those who exclude themselves from the class.
Are There Lawyers Representing You?
12. The Court has approved lawyers (called “Class Counsel”) to collectively represent you. You will not be asked to pay your own personal money for the services of these attorneys and their associates and staff in litigating this case and negotiating this Settlement. Instead, the lawyers have sought payment from the defendants, subject to final approval of the Court, as
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is described further below. Only Class Counsel may act on behalf of the class. However, that does not prevent you from hiring your own lawyer to advise you personally about your rights, options or obligations as a Class Member in this lawsuit. If you want to be represented by your own lawyer, you may hire one at your own expense.
What Do I Need To Do To Collect Money?
13. To get money from the Settlement, you must complete the enclosed Proof of Claim and Release Form, sign it, and mail it to the Claims Administrator on or before _________, 2014. By accepting the terms of this settlement, you will be waiving your right to assert a claim against the District of Columbia as it applies to overdetentions and strip searches during the Class Period. Therefore, if you do not want to waive these claims, you should opt-out of this settlement as described in section 17 of this Notice as set forth below.
14. The name and address of the Claims Administrator are: ________
15. The Class Administrator maintains a website titled www.__________. You can go to it and obtain additional claim forms if you misplace yours. You can also obtain other information about the case on the website.
What Happens If I Do Nothing?
16. If you do nothing, you will not receive any money. You will still be deemed part of the Class Action, and you will be releasing all claims you may have related to the allegations in the case. Thus, it is very important that you act promptly to complete your claim form on time or you will not receive money but will still have no right to sue the District on these same issues.
What Do I Need To Do If I Want To Request Exclusion or “Opt Out” From the Settlement?
17. You may request to be excluded, or “opt out,” from the Settlement. Class Members who request to be excluded from the Settlement will NOT receive any money, nor will they have released their claims. They will then be entitled to pursue their claims individually. To request to be excluded from the Settlement, you must prepare and submit a written request with your name and address. The request must state: “I do not want to be part of the plaintiff settlement class in the Barnes Class Action Case.” The request must be signed by you and mailed to the Claims Administrator postmarked on or before _____________, 2014. (The contact information for the Class Administrator is set out at ¶ 14. Note that the date to file an Objection is different from, and earlier than, the date to file a claim.
What Must I Do To Object To the Settlement?
18. Any Settlement Class Member may object to the Settlement, or to any settlement term. Settlement Class Members must object in writing. You must file any objection by ___. Note that the date to file an Objection is different from, and earlier than, the date to file a claim. If
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you object to any part of the Settlement Agreement and you want to tell the Judge, you have to do the following things:
• You must write a letter to the Judge telling him what you do not like about the Settlement Agreement. Include your name, address, phone number, and signature in the letter.
• On the first page of your letter write in large or underlined letters: “Civil Action No. 06cv-0315 (RCL): Objections to Settlement Agreement in Barnes v. District of Columbia.”
• Mail your letter to:
The Honorable Royce C. Lamberth U.S. District Court for the District of Columbia E. Barrett Prettyman U.S. Courthouse 333 Constitution Avenue, NW Washington, DC 20001
• You must also mail copies of your letter to the lawyers for the plaintiffs and defendant at the following addresses:
Barnes Class Counsel Barrett S. Litt Attention: Paralegal Julia White Kaye, McLane, Bednarski & Litt 234 Colorado Blvd., Ste 230 Pasadena, CA 91101
(Although there are other class counsel, it is this office that will handle issues related to the settlement.)
AND
Office of the Attorney General for the District of Columbia Re: Barnes Class Action Andrew J. Saindon, Assistant Attorney General Attention: Robin Massengale 441 Fourth Street, NW, 6th Floor South Washington, DC 20001
• If you need help writing your objections, you may ask someone to object on your behalf. The representative must state in the objection that he or she is your representative and explain the nature of the representation and the name of the class member.
19. You may object to all or any part of the settlement.
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20. DO NOT CALL THE COURT. THE COURT WILL NOT ACCEPT PHONE CALLS ABOUT THIS. YOU MUST SUBMIT YOUR OBJECTIONS IN WRITING.
What Is the Release of Claims?
21. If you are a class member and have not excluded yourself from the class as described above, you are waiving all your rights to all claims during the class period related to strip searches and overdetentions, including even those you are not aware of at present or do not suspect, in exchange for a monetary payment. By participating, you will not be giving up any other claim(s) that you may have against the District of Columbia not covered by this Settlement.
Background of Settlement.
22. Plaintiffs’ lawyers believe that this Agreement is fair, reasonable, adequate, and is in the best interest of the class because it provides compensation for past injuries, while acknowledging that the DOC has substantially eliminated the problems the lawsuit was intended to address. Although Defendant denies that it has committed any wrongdoing, it believes that further litigation would be protracted, expensive, and contrary to its best interests. Thus, the Parties entered into settlement negotiations which resulted in the settlement. The Honorable Royce C. Lamberth has determined on a preliminary basis that the settlement is fair, reasonable, and adequate and in the best interests of the Class.
23. The judge will retain jurisdiction over the case to decide any disputes about compliance with the Settlement Agreement.
24. You may obtain a copy of the entire Settlement Agreement on the Department of Corrections’ website at www.doc.dc.gov.
25. The lawyers for the plaintiffs are Barrett S. Litt and William Claiborne. Class members do not pay any fees to these lawyers. The fees are approved by the Court. The contact information for Plaintiffs’ counsel is contained in ¶ 18 (referring to Barnes Class Counsel)
When and where will the judge decide whether to approve the Settlement Agreement?
26. A final fairness hearing will be held on ____________, at ______ __.m. before the Honorable Judge Royce C. Lamberth of the U. S. District Court for the District of Columbia, at the E. Barrett Prettyman United States Courthouse. The courthouse is located at 333 Constitution Avenue, NW, Washington, DC 20001. The hearing will be held in courtroom 22A.
27. At the final fairness hearing, the judge will consider whether the settlement is fair, reasonable, and adequate. The judge will consider any objections that were made according to the procedures described above. Plaintiffs’ and defendant’s lawyers will be available to answer any questions that the judge may have.
23

Case 1:06-cv-00315-RCL Document 465-2 Filed 11/04/13 Page 24 of 28
28. You may speak at the hearing only if you sent your objections to the judge in writing, and if the judge determines he will allow those who object to speak. If he does, he may decide to allow some and not others to do so.
29. If the judge decides to approve the settlement, his decision is final and the Lawsuit will end. The class members will no longer be able to petition the courts for the same things they sued about in the Barnes lawsuit.
30. If the judge does not approve the settlement, the Lawsuit will continue. When Will I Receive Money From the Settlement? 31. No money will be paid until after the Settlement is approved and all possibilities of appeal
are completed. After that, it will likely take two to three months, and quite possibly more, to process all the claims, calculate the amount due to each Class Member and receive the money to send to the Class Members. If you file a claim and do not receive money within eight months after _________, 2014, which is the last day to mail or file a claim, check the website for this case about when mailings are expected, or contact the Class Administrator by either calling _________ or writing to the Class Administrator, whose contact information is contained in ¶ 14.
24

Case 1:06-cv-00315-RCL Document 465-2 Filed 11/04/13 Page 25 of 28

75. Before this Settlement Agreement becomes final and binding on the Parties, the Court shall hold a Fairness Hearing to determine whether to enter a Final Order of Approval. A proposed Final Order of Approval shall be submitted to the Court. In the event that a Final Order of Approval consistent with the terms set forth herein is not entered, either Party has the right to withdraw from the settlement.
XII. NO ADMISSION OR WAIVER
76. The Parties acknowledge and agree that all undertakings and agreements contained in this Settlement Agreement have been agreed to solely for the purpose of finally compromising and resolving all questions, disputes and issues between them relating to the litigation. This Settlement Agreement and any proceedings taken pursuant hereto shall not in any event be construed as, interpreted as, or deemed to be evidence of an admission or concession by either party for any purpose, or deemed to constitute a waiver of any legal position or any defenses or other rights which either of the Parties might otherwise assert in any context. Neither this Settlement Agreement nor any of its provisions nor any other documents related hereto nor any negotiations, statements or testimony taken in connection herewith may be offered or received in evidence in, or used for any other purpose, or in any suit, action or legal proceeding which either of them may now have or in the future have with any other person, as an admission or concession of liability or wrongdoing or as any admission or concession on the part of either party, except in connection with any action or legal proceeding to enforce this Settlement Agreement. The Parties have reached this Settlement Agreement on a commercial basis through arms-length negotiations and to avoid the costs and delays of further disputes, litigation and negotiations among them. This Settlement Agreement has been entered into without any concession of liability or non-liability whatsoever and has no precedential or evidentiary value whatsoever.

XIII. DUTY TO DEFEND AGREEMENT

77. The Parties and their counsel agree to defend this Agreement. Counsel for Plaintiffs may not undertake the representation of objectors or persons who opt out of the settlement in any matter substantially related to the Released Claims if that representation conflicts with Counsel for Plaintiffs' obligations as Class Counsel; however, this prohibition is null and void to the extent it conflicts with the D.C. Rules of Professional Conduct including but not limited to Rule 5.6(b). The Parties shall take no positions contrary to, or inconsistent with, the terms of the Agreement.

1I" DATED: r'II '0

By and through Office of the Attorney General

IRVIN B. NATHAN Attorney General for the District of Columbia

By: EllenE ros

7

Deputy, Public Interest Division

13

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Case 1:06-cv-00315-RCL Document 465-2 Filed 11/04/13 Page 27 of 28

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 Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 1 of 46
CLOSED,JURY,MEDIATION,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:06−cv−00315−RCL

BARNES et al v. DISTRICT OF COLUMBIA Assigned to: Chief Judge Royce C. Lamberth Cases: 1:02−cv−00956−RCL
1:07−cv−00493−RCL 1:11−cv−01618−RCL 1:08−cv−00215−RCL 1:09−cv−00368−RCL Case in other court: USCA, 11−07047 Cause: 42:1983 Prisoner Civil Rights Plaintiff
CARL A. BARNES

Date Filed: 02/23/2006 Date Terminated: 03/26/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by William Charles Cole Claiborne , III LAW OFFICES OF WILLIAM CLAIBORNE III 2020 Pennsylvania Avenue, NW Suite 395 Washington, DC 22203 (202) 824−0700 Email: claibornelaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barrett S. Litt KAYE, MACLANE, BEDNARSKI & LITT 234 Colorado Boulevard Suite 230 Pasadena, CA 91101 (626) 844−7660 Fax: (626) 844−7670 Email: blitt@kmbllaw.com ATTORNEY TO BE NOTICED
Paul J. Estuar LITT, ESTUAR & KITSON, LLP 1055 Wiltshire Boulevard Suite 1880 Los Angeles, CA 90017 (213) 386−3115 Fax: (213) 380−4585 ATTORNEY TO BE NOTICED
Ralph Douglas Robinson RALPH D. ROBINSON, P.C. 8160 Skelton Circle Falls Church, VA 22042−1219 (703) 846−0596 Email: ralph_29104@msn.com ATTORNEY TO BE NOTICED
Stacey R. Brown LITT, ESTUAR & KITSON, LLP 234 East Colorado Boulevard Suite 230 Pasadena, CA 91101 (626) 844−7660 Fax: (626) 844−7670

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 2 of 46

Email: sbrown@littlaw.com ATTORNEY TO BE NOTICED

Plaintiff DERNARD HAWKINS

represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barrett S. Litt (See above for address) ATTORNEY TO BE NOTICED
Paul J. Estuar (See above for address) ATTORNEY TO BE NOTICED
Ralph Douglas Robinson (See above for address) ATTORNEY TO BE NOTICED
Stacey R. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DAVID PETERSON

represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barrett S. Litt (See above for address) ATTORNEY TO BE NOTICED
Paul J. Estuar (See above for address) ATTORNEY TO BE NOTICED
Ralph Douglas Robinson (See above for address) ATTORNEY TO BE NOTICED
Stacey R. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MAURICE WILLIAMS

represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barrett S. Litt (See above for address) ATTORNEY TO BE NOTICED
Paul J. Estuar (See above for address) ATTORNEY TO BE NOTICED
Ralph Douglas Robinson (See above for address)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 3 of 46

ATTORNEY TO BE NOTICED
Stacey R. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
TONEY JAMES MALLOY On behalf of all others similarly situated

represented by Barrett S. Litt (See above for address) ATTORNEY TO BE NOTICED
Paul J. Estuar (See above for address) ATTORNEY TO BE NOTICED
Ralph Douglas Robinson (See above for address) ATTORNEY TO BE NOTICED
Stacey R. Brown (See above for address) ATTORNEY TO BE NOTICED
William Charles Cole Claiborne , III (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
DISTRICT OF COLUMBIA Government of

represented by Ellen A. Efros OFFICE OF THE GENERAL COUNSEL 1350 Pennsylvania Avenue, NW Suite 4 Washington, DC 20004 (202) 724−7820 Fax: (202) 724−8129 Email: eefros@dccouncil.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. Saindon D.C. OFFICE OF ATTORNEY GENERAL 441 4th Street, NW Sixth Floor South Washington, DC 20001−2714 (202) 724−6643 Fax: (202) 730−1470 Email: andy.saindon@dc.gov ATTORNEY TO BE NOTICED
Denise J. Baker OFFICE OF ATTORNEY GENERAL/DC 441 Fourth Street, NW 6th Floor North Washington, DC 20001 (202) 724−7334 Fax: (202) 741−8800 Email: denise.baker@dc.gov TERMINATED: 01/27/2010
Grace Graham

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OFFICE OF THE ATTORNEY GENERAL 441 Fourth Street, NW Suite 600S Washington, DC 20001 (202) 442−9784 Fax: (202) 741−8892 Email: grace.graham@dc.gov TERMINATED: 01/27/2015
Keith David Parsons OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 727−6247 Fax: (202) 741−8935 Email: keith.parsons@dc.gov TERMINATED: 09/18/2015

Movant
SIMON BANKS TERMINATED: 01/22/2008

represented by SIMON BANKS P.O. Box 17052 Alexandria, VA 22302 Email: drsbanks@msn.com PRO SE
SIMON BANKS P.O. Box 17052 Alexandria, VA 22302 Email: banksdoctoroflaws@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/23/2006 02/23/2006 02/23/2006 02/24/2006
05/12/2006
05/21/2006 05/24/2006

# Docket Text
1 CLASS ACTION COMPLAINT against DISTRICT OF COLUMBIA (Filing fee $ 250) filed by MAURICE WILLIAMS, CARL A. BARNES, DERNARD HAWKINS, DAVID PETERSON.(tg, ) (Entered: 02/27/2006)
2 NOTICE OF RELATED CASE by MAURICE WILLIAMS, CARL A. BARNES, DERNARD HAWKINS, DAVID PETERSON. Case related to Case No. 02−956. (tg, ) (Entered: 02/27/2006)
Summons (1) Issued as to DISTRICT OF COLUMBIA. (tg, ) (Entered: 02/27/2006)
3 FIRST AMENDED COMPLAINT against DISTRICT OF COLUMBIAfiled by TONEY JAMES MALLOY, MAURICE WILLIAMS, CARL A. BARNES, DERNARD HAWKINS, DAVID PETERSON. (Attachments: # 1 Redlined First Amended Complaint)(nmw, ) (Entered: 02/27/2006)
4 ORDER for Proof of Service. Plaintiffs shall, within the next ten (10) days, file with the Clerk of Court either proof of service or a status memorandum indicating all steps taken to date to effect service. Signed by Judge Royce C. Lamberth on 5/12/06. (lcrcl1, ) (Entered: 05/12/2006)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CARL A. BARNES served on 5/18/2006, answer due 6/7/2006 (Claiborne, William) (Entered: 05/21/2006)
6 MOTION to Amend/Correct 3 Amended Complaint, 1 Complaint by CARL A. BARNES. (Attachments: # 1 Exhibit Second Amended Complaint clean copy# 2 Exhibit Second Amended Complaint redlined)(Claiborne, William) (Entered:

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05/24/2006
06/06/2006 06/06/2006 06/06/2006 06/06/2006 06/06/2006 06/06/2006 06/07/2006 07/07/2006 07/07/2006 07/18/2006 07/19/2006 07/24/2006 07/25/2006 07/31/2006

05/24/2006)
7 First MOTION to Certify Class by CARL A. BARNES. (Attachments: # 1 Exhibit memorandum of law# 2 Exhibit Exhibit List# 3 Affidavit # 4 Affidavit # 5 Affidavit # 6 Affidavit # 7 Affidavit # 8 Exhibit JACCS / Barnes (Exhibit is unavailable due to Privacy Information) # 9 Affidavit # 10 Affidavit # 11 Affidavit # 12 Affidavit # 13 Affidavit # 14 Affidavit # 15 Affidavit # 16 Affidavit # 17 Affidavit # 18 Exhibit Ex 15 reserved# 19 Affidavit # 20 Affidavit # 21 Affidavit # 22 Affidavit # 23 Affidavit # 24 Affidavit # 25 Affidavit # 26 Affidavit # 27 Affidavit # 28 Affidavit Robinson attny affidavit# 29 Affidavit Declaration of Richard A. Berk# 30 Exhibit Plaintiff's Proposed Trial Plan and Proposed Notice Procedures# 31 Affidavit Affidavit of Tony Edward Savage# 32 Text of Proposed Order)(Claiborne, William) Modified on 1/23/2009 (ks). (Entered: 05/24/2006)
8 NOTICE of Appearance by Denise J. Baker on behalf of DISTRICT OF COLUMBIA (Baker, Denise) (Entered: 06/06/2006)
9 MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Baker, Denise) (Entered: 06/06/2006)
10 ORDER granting 6 plaintiffs' Motion for Leave to Amend First Amended Complaint and to file their Second Amended Complaint. Signed by Judge Royce C. Lamberth on 6/6/06. (lcrcl1, ) (Entered: 06/06/2006)
11 ORDER granting Defendant's Consent Motion 9 to Extend Time to Answer or Otherwise Respond to the Complaint; defendant, District of Columbia, may answer or otherwise respond to the Plaintiffs' Second Amended Complaint on or before July 7, 2006. Signed by Judge Royce C. Lamberth on 6/6/06. (lcrcl1, ) (Entered: 06/06/2006)
12 SECOND AMENDED COMPLAINT against DISTRICT OF COLUMBIA filed by MAURICE WILLIAMS, TONEY JAMES MALLOY, CARL A. BARNES, DERNARD HAWKINS, DAVID PETERSON.(tg, ) (Entered: 06/07/2006)
Set/Reset Deadlines: Answer to second amended complaint due by 7/7/2006. (mon, ) (Entered: 06/12/2006)
13 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certification by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Baker, Denise) (Entered: 06/07/2006)
14 MOTION to Dismiss or in the alternative for Summary Judgment by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order # 2 Affidavit Declaration of Paige Ireland# 3 Statement of Facts)(Baker, Denise) (Entered: 07/07/2006)
15 MOTION for Summary Judgment by DISTRICT OF COLUMBIA. (tg, ) (See docket number 14 for scanned document) (Entered: 07/10/2006)
16 Consent MOTION for Extension of Time to file response to defendants' motion to dismiss/ motion for summary judgment by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/18/2006)
17 ORDER granting Plaintiffs Consent Motion 16 to Extend Time to Answer or Otherwise Respond to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment; plaintiffs' opposition is due on or before August 1, 2006. Signed by Judge Royce C. Lamberth on 7/19/06. (lcrcl1, ) (Entered: 07/19/2006)
18 NOTICE of Pracipe to Substitute the Affidavit of Paige Ireland by DISTRICT OF COLUMBIA re 15 MOTION for Summary Judgment, 14 MOTION to Dismiss or in the alternative for Summary Judgment (Attachments: # 1 Affidavit)(Baker, Denise) (Entered: 07/24/2006)
Set/Reset Deadlines: Responses due by 8/1/2006 (lin, ) (Entered: 07/25/2006)
19 Memorandum in opposition to re 14 MOTION to Dismiss or in the alternative for Summary Judgment filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/31/2006)

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08/01/2006
08/08/2006 08/08/2006 08/28/2006 09/06/2006 09/15/2006 11/06/2006 11/09/2006 11/15/2006 01/26/2007 02/04/2007
02/16/2007 02/20/2007 03/26/2007
03/26/2007

20 MOTION for Extension of Time to per Rule 56(f) to respond to defendant's motion for summery judgment by CARL A. BARNES. (Attachments: # 1 memorandum of law# 2 Exhibit Exhibit List# 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Text of Proposed Order)(Claiborne, William) (Entered: 08/01/2006)
21 RESPONSE to Plaintiffs' 20 Rule 56(f) Motion to Deny Defendant's Summary Judgment Motion without prejudice and Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss filed by DISTRICT OF COLUMBIA. (Baker, Denise) Modified on 8/9/2006 (tg, ). (Entered: 08/08/2006)
22 REPLY to opposition to motion re 14 MOTION to Dismiss or in the alternative for Summary Judgment filed by DISTRICT OF COLUMBIA. (tg, ) (See docket number 21 for scanned document) (Entered: 08/09/2006)
23 ORDER granting 13 Defendant's Unopposed Motion to Extend Time to Respond to Plaintiffs' Motion for Class Certification for a period not to exceed 75 days from the date of this Order. Signed by Judge Royce C. Lamberth on 8/28/06. (lcrcl2, ) (Entered: 08/28/2006)
24 MOTION for Discovery (scheduling order; scheduling conference; discovery report by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 09/06/2006)
25 Memorandum in opposition to re 24 MOTION for Discovery (scheduling order; scheduling conference; discovery report filed by DISTRICT OF COLUMBIA. (Attachments: # 1)(Baker, Denise) (Entered: 09/15/2006)
26 MOTION for Extension of Time to File Response/Reply as to 7 First MOTION to Certify Class by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Baker, Denise) (Entered: 11/06/2006)
27 Memorandum in opposition to re 26 MOTION for Extension of Time to File Response/Reply as to 7 First MOTION to Certify Class filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 11/09/2006)
28 REPLY to opposition to motion re 26 MOTION for Extension of Time to File Response to First MOTION for Class Certification filed by DISTRICT OF COLUMBIA. (Baker, Denise) Modified on 11/16/2006 (tg, ). (Entered: 11/15/2006)
29 NOTICE of Appearance by Ralph Douglas Robinson on behalf of all plaintiffs (Robinson, Ralph) (Entered: 01/26/2007)
30 Second MOTION for Discovery by CARL A. BARNES. (Attachments: # 1 Exhibit Cumulative Exhibit List# 2 Affidavit affidavit# 3 Affidavit # 4 Affidavit # 5 Affidavit # 6 Affidavit (Affidavit is unavailable due to Privacy Information) # 7 Affidavit # 8 Affidavit # 9 Affidavit # 10 Affidavit # 11 Exhibit Legal Times article# 12 Affidavit # 13 Affidavit (Affidavit is unavailable due to Privacy Information) # 14 Text of Proposed Order)(Claiborne, William) Modified on 1/23/2009 (ks). (Entered: 02/04/2007)
31 Memorandum in opposition to re 30 Second MOTION for Discovery filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Baker, Denise) (Entered: 02/16/2007)
32 NOTICE correction firm name for Claiborne by CARL A. BARNES (Claiborne, William) (Entered: 02/20/2007)
33 ORDER denying 30 Motion for Discovery; granting 7 Motion to Certify Class; denying 14 Motion to Dismiss; denying 15 Motion for Summary Judgment; denying 20 Motion for Extension of Time; denying 24 Motion for Discovery; denying 26 Motion for Extension of Time to File Response/Reply. Signed by Judge Royce C. Lamberth on 3/26/2007. (lcrcl1, ) (Entered: 03/26/2007)
34 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 3/26/2007. (lcrcl1, ) (Entered: 03/26/2007)

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03/26/2007 04/06/2007
04/06/2007 04/09/2007 04/09/2007 04/09/2007 04/23/2007 05/29/2007 10/24/2007 10/26/2007 12/13/2007 12/19/2007 12/20/2007 12/24/2007
12/27/2007 01/22/2008 01/27/2008 01/30/2008 03/24/2008 07/14/2008

Set/Reset Deadlines: Joint Meet & Confer Statement with Proposed Scheduling Order due by 4/6/2007. (rje) (Entered: 03/26/2007)
35 ANSWER to Amended Complaint by DISTRICT OF COLUMBIA. Related document: 12 Amended Complaint filed by DAVID PETERSON, MAURICE WILLIAMS, DERNARD HAWKINS, CARL A. BARNES, TONEY JAMES MALLOY.(Baker, Denise) (Entered: 04/06/2007)
36 ENTERED IN ERROR.....NOTICE proposed scheduling order by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) Modified on 4/9/2007 (nmw, ). (Entered: 04/06/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 36 Notice (Other) was entered in error and counsel was instructed to refile said pleading with a Notice of Filing included. (nmw, ) (Entered: 04/09/2007)
37 NOTICE of Appearance by Ellen A. Efros on behalf of DISTRICT OF COLUMBIA (Efros, Ellen) (Entered: 04/09/2007)
38 NOTICE of proposed scheduling order by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/09/2007)
39 SCHEDULING ORDER. Signed by Judge Royce C. Lamberth on 4/21/2007. (lcrcl1, ) (Entered: 04/23/2007)
40 NOTICE of similar case with class allegations by CARL A. BARNES (Claiborne, William) (Entered: 05/29/2007)
41 Joint MOTION for Mediation by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/24/2007)
42 ORDER granting 41 Motion for Mediation. Signed by Judge Royce C. Lamberth on 10/26/07. (rje) (Entered: 10/26/2007)
43 MOTION to Intervene by SIMON BANKS (tg, ) (Entered: 12/17/2007)
44 Memorandum in opposition to re 43 MOTION to Intervene Lift and Modify Protective Order filed by DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 12/19/2007)
45 NOTICE of Service of Response to Motion to Intervene and Certificate of Service by DISTRICT OF COLUMBIA re 44 Memorandum in Opposition (Baker, Denise) (Entered: 12/20/2007)
46 REPLY re 43 MOTION to Intervene Reply to District's Response to Mot to Intervene filed by SIMON BANKS. (Attachments: # 1 Exhibit Order dated 9/17/2007, Doc. 120 (05−1514# 2 Exhibit Dist's Mot to Dismiss & F Sanc, Doc 7. 12/14/2007# 3 Exhibit Dist's Mot to Dismiss & f Sanc, Doc 139 (05−1514) 12/19/2007# 4 Exhibit Mot for Default Judgmt, Doc 140, 12/19/2007 05−1514)# 5 Exhibit Mot to Strike and f Sanc, Doc 143 12/20/2007 (05−1514)# 6 Exhibit Resp, Opp to Mot to Withdraw, Doc 151, 12/21/2007 (05−1514)# 7 Exhibit Mot to Strike Dist & Brown's Answer, Doc 151 12/21/2007 (05−1514))(BANKS, SIMON) (Entered: 12/24/2007)
47 Memorandum in opposition to re 43 MOTION to Intervene filed by CARL A. BARNES. (Claiborne, William) (Entered: 12/27/2007)
48 ORDER denying Simon Banks's 43 Motion to Intervene. Signed by Judge Royce C. Lamberth on 01/22/2008. (lcrcl2, ) (Entered: 01/22/2008)
49 Joint MOTION for Mediation referral by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 01/27/2008)
50 ORDER granting 49 Motion for Mediation. Signed by Judge Royce C. Lamberth on 01/30/2008. (lcrcl2, ) (Entered: 01/30/2008)
51 STATUS REPORT by MAURICE WILLIAMS, DISTRICT OF COLUMBIA, TONEY JAMES MALLOY, CARL A. BARNES, DERNARD HAWKINS, DAVID PETERSON. (Graham, Grace) (Entered: 03/24/2008)
52 NOTICE OF FILING MOTION TO CONSOLIDATE WITH BARNES by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A TO MOT

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07/14/2008 07/16/2008
10/06/2008 10/07/2008 04/26/2009 05/15/2009 05/29/2009 05/29/2009
05/29/2009 06/12/2009 08/31/2009 08/31/2009 08/31/2009
10/28/2009
10/29/2009 11/09/2009
11/10/2009

TO CONSOLIDATE WITH BARNES, # 3 Exhibit B−TO MOT CONCOL. WITH BARNES)(Baker, Denise) (Entered: 07/14/2008)
53 NOTICE OF FILING MOTION TO CONSOLIDATE WITH BARNES by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit copy of motion to consolidate, # 2 Exhibit copy of proposed order to consolidate)(Baker, Denise) (Entered: 07/14/2008)
54 NOTICE OF FILING MOTION TO CONSOLIDATE RELATED CASE by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A−COPY OF MOTION TO CONOLIDATE, # 2 Exhibit B−COPY OF PROPOSED ORDER TO CONSOLIDATE)(Baker, Denise) (Entered: 07/16/2008)
55 Joint MOTION for Order to Continue Mediation and Suspend the Operation of the Court's Scheduling Order Regarding the Second Liability Discovery Phase by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 10/06/2008)
56 ORDER granting 55 Motion to Continue Mediation. Signed by Chief Judge Royce C. Lamberth on 10/7/08. (lcrcl2, ) (Entered: 10/07/2008)
57 NOTICE re proposed scheduling order by CARL A. BARNES re 39 Scheduling Order (Claiborne, William) (Entered: 04/26/2009)
58 NOTICE Regarding Proposed Scheduling Order by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 05/15/2009)
59 MOTION for Protective Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order Exhibit 1)(Graham, Grace) (Entered: 05/29/2009)
60 Joint MOTION to Amend/Correct 39 Scheduling Order and Case Management Order for the Liability Phase by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Plaintiffs' Memorandum, # 2 Exhibit Defendant's Memorandum, # 3 Exhibit Plaintiffs' Proposed Order, # 4 Exhibit Defendant's Proposed Order)(Graham, Grace) (Entered: 05/29/2009)
61 MOTION for Protective Order by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 05/29/2009)
62 Memorandum in opposition to re 61 MOTION for Protective Order filed by DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 06/12/2009)
63 ORDER granting Motion 59 for Protective Order and denying Motion 61 for Protective Order. Signed by Chief Judge Royce C. Lamberth on 8/31/2009. (lcrcl2, ) (Entered: 08/31/2009)
64 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Chief Judge Royce C. Lamberth on 8/31/2009. (lcrcl2, ) (Entered: 08/31/2009)
65 ORDER granting the Joint Motion 60 to Amend Scheduling Order 39 ; Set/Reset Deadlines: Dispositive Motions due by 8/15/2010. Response to Dispositive Motions due by 9/15/2010. Reply to Dispositive Motions due by 10/7/2010. Signed by Chief Judge Royce C. Lamberth on 8/31/2009. (lcrcl2, ) (Entered: 08/31/2009)
66 MOTION to Compel the report by Karen Schneider entitled Review of Paperflow Process between the Superior Court, the U. S. Marshals Service, and the Department of Corrections by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 10/28/2009)
67 MOTION to Compel production of performance oversight reports for the years 2005 through 2008 by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/29/2009)
68 Memorandum in opposition to re 66 MOTION to Compel the report by Karen Schneider entitled Review of Paperflow Process between the Superior Court, the U. S. Marshals Service, and the Department of Corrections filed by DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 11/09/2009)
69 MOTION to Compel certain institutional folders by CARL A. BARNES (Attachments: # 1 Exhibit Exhibit A Bynum report, # 2 Exhibit Exhibit B late releases

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 9 of 46

11/12/2009 11/24/2009 12/03/2009 12/07/2009 12/07/2009 12/07/2009 12/08/2009 12/11/2009 12/29/2009 01/12/2010 01/15/2010 01/15/2010 01/15/2010
01/15/2010 01/19/2010
01/27/2010

chart to city council, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 11/10/2009)
70 Memorandum in opposition to re 67 MOTION to Compel production of performance oversight reports for the years 2005 through 2008 filed by DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 11/12/2009)
71 Memorandum in opposition to re 69 MOTION to Compel certain institutional folders filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Email)(Graham, Grace) (Entered: 11/24/2009)
72 ORDER denying plaintiffs' Motion 69 to Compel Production of Certain Institutional Jackets. Signed by Chief Judge Royce C. Lamberth on 12/3/2009. (lcrcl2, ) (Entered: 12/03/2009)
73 NOTICE by CARL A. BARNES re 66 MOTION to Compel the report by Karen Schneider entitled Review of Paperflow Process between the Superior Court, the U. S. Marshals Service, and the Department of Corrections (Claiborne, William) (Entered: 12/07/2009)
74 Joint MOTION for Extension of Time to Complete Discovery and Amend Scheduling Order by DISTRICT OF COLUMBIA (Baker, Denise) (Entered: 12/07/2009)
75 MOTION for Extension of Time to File Response/Reply as to 67 MOTION to Compel production of performance oversight reports for the years 2005 through 2008 by CARL A. BARNES (Attachments: # 1 Exhibit reply, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 12/07/2009)
Set/Reset Deadlines: Defendants Reply due by 12/14/2009. (rje) (Entered: 12/08/2009)
76 ORDER granting plaintiff's Motion 75 for Extension of Time to File Reply to Defendant's Opposition 70 to Plaintiff's Motion to Compel 67 . The reply lodged with the Clerk on December 7, 2009 shall be deemed timely filed. Signed by Chief Judge Royce C. Lamberth on 12/11/2009. (lcrcl2, ) (Entered: 12/11/2009)
77 MOTION for Extension of Time to File Response/Reply as to 74 Joint MOTION for Extension of Time to Complete Discovery and Amend Scheduling Order by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 12/29/2009)
78 NOTICE of Appearance by Andrew J. Saindon on behalf of DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 01/12/2010)
79 ORDER denying plaintiffs' Motion 67 to Compel. Signed by Chief Judge Royce C. Lamberth on 1/15/2010. (lcrcl2, ) (Entered: 01/15/2010)
80 ORDER granting plaintiffs' Motion 77 to Late File Their Attached Reply. Signed by Chief Judge Royce C. Lamberth on 1/15/2010. (lcrcl2, ) (Entered: 01/15/2010)
81 ORDER granting defendant's Joint Motion 74 to Enlarge Scheduling Order. The parties shall complete the following on or before the dates prescribed−−Fact DiscoveryApril 9, 2010; Expert Witness DesignationMay 28, 2010; Counter Designation of Expert Witness(es)June 30, 2010; Expert ReportsJuly 30, 2010; Expert DiscoverySeptember 30, 2010; Dispositive MotionsNovember 15, 2010; Oppositions to Dispositive MotionsDecember 15, 2010; Replies to Oppositions to Dispositive MotionsJanuary 7, 2011. Signed by Chief Judge Royce C. Lamberth on 1/15/2010. (lcrcl2, ) (Entered: 01/15/2010)
82 RESPONSE re 74 Joint MOTION for Extension of Time to Complete Discovery and Amend Scheduling Order filed by CARL A. BARNES. (rdj) (Entered: 01/19/2010)
Set/Reset Deadlines: Fact Discovery due by 4/9/2010. Expert Witness Designantion due by 5/28/2010. Counter Designation of Expert Witness(es)due by 6/30/2010. Expert Reports due by 5/30/2010. Expert Discovery due by 9/30/2010. Dispositive Motions due by 11/15/2010. Oppositions to Dispositive Motions due by 12/15/2010. Reply to Dispositive Motions due by 1/15/2011. (rje, ) (Entered: 01/19/2010)
83 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Denise J. Baker terminated. (Baker, Denise) (Entered:

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 10 of 46

02/04/2010 02/17/2010 02/26/2010 03/02/2010 03/02/2010 03/03/2010 03/03/2010 03/03/2010 03/08/2010 03/08/2010
03/08/2010

01/27/2010)
84 MOTION for Protective Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Declaration of Ray Brown)(Saindon, Andrew) (Entered: 02/04/2010)
85 Consent MOTION for Extension of Time to File Response/Reply as to 84 MOTION for Protective Order by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/17/2010)
86 MOTION to Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/26/2010)
87 NOTICE Notice Of Filing Under Seal Redacted Section Of Plaintiffs Partially Redacted Motion To Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests by CARL A. BARNES re 86 MOTION to Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests (Claiborne, William) (Entered: 03/02/2010)
88 SEALED DOCUMENT filed by CARL A. BARNES. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 03/03/2010)
89 NOTICE of filing under seal of Plaintiffs Opposition (Including Exhibits) to Defendant District Of Columbias Motion for a Protective Order (docket # 84) pursuant to the protective order entered by the Court (docket # 63). by CARL A. BARNES re 63 Order on Motion for Protective Order, 84 MOTION for Protective Order (Claiborne, William) (Entered: 03/03/2010)
90 MOTION for Extension of Time to File Response/Reply as to 85 Consent MOTION for Extension of Time to File Response/Reply as to 84 MOTION for Protective Order by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/03/2010)
91 SEALED DOCUMENT filed by CARL A. BARNES. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(zrdj) (Entered: 03/04/2010)
92 MOTION for Order for leave to for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8, 2010 (docket # 90) by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/08/2010)
93 NOTICE filing under seal of revised motion and exhibits as attachement to plaintiffs motion for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8, 2010 (docket # 90) by CARL A. BARNES re 92 MOTION for Order for leave to for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8 MOTION for Order for leave to for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8 (Claiborne, William) (Additional attachment(s) added on 1/11/2013: # 1 Exhibit Revised Opposition (SEALED), # 2 Exhibit 2 (SEALED), # 3 Exhibit 3 (SEALED), # 4 Exhibit 4 (SEALED), # 5 Exhibit 5 (SEALED), # 6 Exhibit 6 (SEALED), # 7 Exhibit 7 (SEALED), # 8 Exhibit 8 (SEALED), # 9 Exhibit 9 (SEALED), # 10 Exhibit 10 (SEALED), # 11 Exhibit 11 (SEALED), # 12 Exhibit 12 (SEALED), # 13 Exhibit 13 (SEALED), # 14 Exhibit 14 (SEALED), # 15 Exhibit 15 (SEALED), # 16 Exhibit 16 (SEALED), # 17 Exhibit 17 (SEALED)) (zrdj, ). (Entered: 03/08/2010)
94 ERRATA correct caption on motion which erroneously read "Consent Motion" by CARL A. BARNES 90 MOTION for Extension of Time to File Response/Reply as to 85 Consent MOTION for Extension of Time to File Response/Reply as to 84

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 11 of 46

03/10/2010 03/12/2010 03/16/2010 03/17/2010 03/17/2010 03/18/2010 03/18/2010
03/18/2010
03/18/2010 03/24/2010 03/29/2010

MOTION for Protective Order filed by CARL A. BARNES. (Attachments: # 1 Exhibit revised caption page of motion)(Claiborne, William) (Entered: 03/08/2010)
MINUTE ORDER granting plaintiff's Motion 85 for Extension of Time to File Response to Defendant's Motion for a Protective Order nunc pro tunc; granting plaintiff's Motion 90 for Extension of Time to File Response to Defendant's Motion for a Protective Order nunc pro tunc. Plaintiff's opposition is due March 9, 2010. Signed by Chief Judge Royce C. Lamberth on 3/10/2010. (lcrcl2, ) (Entered: 03/10/2010)
95 Memorandum in opposition to re 86 MOTION to Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 03/12/2010)
96 REPLY to opposition to motion re 84 MOTION for Protective Order filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 03/16/2010)
97 REPLY to opposition to motion re 86 MOTION to Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests filed by CARL A. BARNES. (Claiborne, William) (Entered: 03/17/2010)
98 NOTICE Filing Under Seal Of The Redacted Portion Of Plaintiffs Partially Redacted Reply (Docket # 97) To The Districts Opposition (Docket # 95) To Plaintiffs Motion To Compel Jaccs Data (Docket # 86) by CARL A. BARNES re 97 Reply to opposition to Motion (Claiborne, William) (Entered: 03/17/2010)
99 MOTION to Compel Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/18/2010)
100 NOTICE Of Filing Under Seal Redacted Section Of Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests by CARL A. BARNES re 99 MOTION to Compel Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests (Claiborne, William) (Entered: 03/18/2010)
101 SEALED DOCUMENT re #98 Notice (Other), filed by CARL A. BARNES. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Redacted Section, # 2 Exhibit List, # 3 Exhibit 1, # 4 Exhibit 1A, # 5 Declaration Brian Kriegler, # 6 Attachment A, # 7 Attachment B, # 8 Attachment C, # 9 Attachment D, # 10 Attachment E, # 11 Attachment F, # 12 Attachment G, # 13 Attachment H, # 14 Declaration Sean R. Day, # 15 Attachment A, # 16 Email − Request for Production, # 17 Letter − Response, # 18 Dialog Box, # 19 Deposition Transcript, # 20 3/16/10 Letter)(zdr) (Entered: 03/19/2010)
102 SEALED DOCUMENT re #100 filed by CARL A. BARNES. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit 1)(zrdj) (Entered: 03/22/2010)
103 NOTICE compliance with discovery requests by CARL A. BARNES re 87 Notice (Other), Notice (Other), 86 MOTION to Compel Production Of Data From Certain Jaccs Fields And Related Documentation Requested In Plaintiffs 4th Document Production Requests, 97 Reply to opposition to Motion (Claiborne, William) (Entered: 03/24/2010)
104 MOTION to Amend/Correct 92 MOTION for Order for leave to for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8 MOTION for Order for leave to for leave to file a revised opposition with additional declarations in opposition to defendants motion for a protective order (docket # 84) pursuant to plaintiffs motion for a second extension till Monday, March 8 by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/29/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 12 of 46

03/30/2010 03/30/2010
03/30/2010
03/31/2010 04/01/2010 04/01/2010 04/02/2010 04/07/2010 04/08/2010 04/08/2010 04/15/2010 04/23/2010
04/23/2010 04/28/2010 04/30/2010 05/04/2010

105 MOTION for Protective Order to Preclude Deposition of Steven Coleman on April 2, 2010 by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit First Notice, # 2 Exhibit Revised Notice, # 3 Exhibit March 15 Email, # 4 Exhibit March 29 Email)(Graham, Grace) (Entered: 03/30/2010)
106 MOTION to Compel by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Defendant's Combined First Set of Discovery Requests, # 2 Exhibit E−mail exchange re: extension of time to respond, # 3 Exhibit E−mail re: plaintiffs' initial responses, # 4 Exhibit Letter from plaintiffs' counsel 9/17/09, # 5 Exhibit Letter from defendant's counsel 9/21/09, # 6 Exhibit Plaintiffs' second supplemented responses 10/6/09, # 7 Exhibit E−mail re: plaintiffs' final responses, # 8 Exhibit Plaintiffs' final responses, redlined, # 9 Exhibit Defendants' Rule 37 letter, # 10 Exhibit Plaintiffs' response to defendants' Rule 37 letter, # 11 Text of Proposed Order)(Saindon, Andrew) (Entered: 03/30/2010)
107 Memorandum in opposition to re 99 MOTION to Compel Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Email to Claiborne, # 2 Exhibit Letter to Claiborne)(Graham, Grace) (Entered: 03/30/2010)
108 Memorandum in opposition to re 105 MOTION for Protective Order to Preclude Deposition of Steven Coleman on April 2, 2010 filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/31/2010)
109 NOTICE filing affidavits under seal by CARL A. BARNES re 108 Memorandum in Opposition (Claiborne, William) (Entered: 04/01/2010)
110 ORDER denying defendant's Motion 105 for Protective Order. Signed by Chief Judge Royce C. Lamberth on 4/1/2010. (lcrcl2, ) (Entered: 04/01/2010)
111 MOTION for Extension of Time to Complete Discovery by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/02/2010)
112 MOTION for Extension of Time to Complete Discovery by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Robinson, Ralph) (Entered: 04/07/2010)
113 NOTICE of Praecipe Consenting to Plaintiffs' Motion to Extend All Discovery Deadlines and Obligations by One Week by DISTRICT OF COLUMBIA re 112 MOTION for Extension of Time to Complete Discovery (Graham, Grace) (Entered: 04/08/2010)
MINUTE ORDER granting plaintiff's Motion 112 for Extension of Time to Complete Discovery. All deadline for discovery obligations are exteed by one week. Signed by Chief Judge Royce C. Lamberth on 4/8/2010. (lcrcl2, ) (Entered: 04/08/2010)
114 Memorandum in opposition to re 111 MOTION for Extension of Time to Complete Discovery filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 04/15/2010)
115 REPLY to opposition to motion re 99 MOTION to Compel Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests filed by CARL A. BARNES. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Claiborne, William) (Entered: 04/23/2010)
116 Memorandum in opposition to re 106 MOTION to Compel filed by CARL A. BARNES. (Claiborne, William) Modified on 4/26/2010 to use correct event (rdj). (Entered: 04/23/2010)
117 SUPPLEMENTAL MEMORANDUM to re 111 MOTION for Extension of Time to Complete Discovery filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 04/28/2010)
118 REPLY to opposition to motion re 106 MOTION to Compel filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 04/30/2010)
119 REPLY to opposition to motion re 111 MOTION for Extension of Time to Complete Discovery filed by CARL A. BARNES. (Claiborne, William) (Entered: 05/04/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 13 of 46

05/28/2010 05/28/2010 06/16/2010
06/16/2010 06/18/2010 07/07/2010 07/07/2010 07/21/2010

120 NOTICE Regarding Designation of Experts by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 05/28/2010)
121 NOTICE plaintiffs' disclosure of experts by CARL A. BARNES re 65 Order on Motion to Amend/Correct, Set/Reset Deadlines,, (Attachments: # 1 Exhibit 1 Dr Kriegler CV, # 2 Exhibit 2 Mr. Nichols CV, # 3 Exhibit 3 Mr Cook print out)(Claiborne, William) (Entered: 05/28/2010)
122 ORDER: As set forth in the attached Memorandum & Order, it is hereby ORDERED that plaintiffs Motion 92 for Leave to File a Revised Opposition to defendants Motion 84 is GRANTED; it is further ORDERED that the Clerk is instructed to docket plaintiffs revised motion and exhibits in opposition to defendants motion for protective order 84 nunc pro tunc to March 8, 2010; it is further ORDERED that plaintiffs Motion 104 for Order Taking Plaintiffs Motion 92 for Leave to File a Revised Opposition as Conceded is DENIED as moot; it is further ORDERED that defendants Motion 84 for Protective Order is DENIED; it is further ORDERED that defendant shall produce the 560 file jackets no later than 30 days from this date; it is further ORDERED that plaintiffs Motion 86 to Compel Production of Data from Certain JACCS Fields and Related Documentation Requested in Plaintiffs 4th Document Production Request is DENIED; it is further ORDERED that plaintiffs Motion 99 to Compel Production of R&D Logs Requested in Plaintiffs 2d Document Production Request is GRANTED; it is further ORDERED that defendant shall produce the R&D logs requested in plaintiffs second document production request forthwith; it is further ORDERED that defendants Motion 106 to Compel is GRANTED; it is further ORDERED that plaintiff shall provide, no later than 30 days from this date, a privilege log, or affirmatively state that they have not withheld any documents on the basis of privilege by the close of discovery; it is further ORDERED that plaintiff shall, no later than 30 days from this date, supplement their responses to defendants interrogatories by the close of discovery; it is further ORDERED that plaintiffs Motion 111 for Extension of Time to Complete Discovery is GRANTED; it is further ORDERED that discovery shall be extended 60 days from the date of this Order; and it is further ORDERED that the following deadlines in the Scheduling Order shall also be extended by 60 days:Expert Witness Designation shall be due July 28, 2010;Counter Designation of Expert Witness(es) shall be due August 30, 2010;Expert Reports shall be due September 30, 2010;Expert Discovery shall be due November 30, 2010;Dispositve Motions shall be due January 15, 2011;Oppositions to Dispositive Motions shall be due February 15, 2011; andReplies to Oppositions to Dispositve Motions shall be due March 7, 2011. In light of the age of this case, the Court does not expect to extend any further deadlines. SO ORDERED. Signed by Chief Judge Royce C. Lamberth on 6/16/2010. (lcrcl2, ) (Entered: 06/16/2010)
Set/Reset Deadlines/Hearings: Expert Reports due by 9/30/2010. Expert Discovery due by 11/30/2010. Expert Witness Designation due by 7/28/2010. Counter Designation of Expert Witness(es) due by 8/30/2010. Dispositive Motions due by 1/15/2011. Opposition to Dispositive Motions due by 2/15/2011. Replies to Dispositive Motions due by 3/7/2011. (tr) (Entered: 06/23/2010)
123 MOTION To Clarify June 16, 2010 Order re 122 Order on Motion for Protective Order, Order on Motion to Compel, Order on Motion for Order,, Order on Motion to Amend/Correct,, Order on Motion for Extension of Time to Complete Discovery,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 06/18/2010)
124 MOTION for Protective Order Regarding Costs of Copying 560 Jackets by DISTRICT OF COLUMBIA (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Graham, Grace) (Entered: 07/07/2010)
125 Second MOTION to Compel RnD Logs by CARL A. BARNES (Attachments: # 1 Text of Proposed Order, # 2 Exhibit #1, # 3 Exhibit #1A)(Claiborne, William) (Entered: 07/07/2010)
126 Memorandum in opposition to re 124 MOTION for Protective Order Regarding Costs of Copying 560 Jackets filed by CARL A. BARNES. (Attachments: # 1 Exhibit ex #1, # 2 Exhibit ex #1 A, # 3 Exhibit ex #2, # 4 Exhibit ex #3, # 5 Exhibit ex #4, # 6 Exhibit ex #5, # 7 Exhibit ex #6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 14 of 46

07/26/2010 07/28/2010 07/28/2010 07/28/2010 08/02/2010 08/02/2010 08/02/2010 08/10/2010 08/10/2010 08/12/2010 08/12/2010 08/12/2010
08/13/2010 08/13/2010 08/16/2010

Exhibit 23, # 22 Exhibit 25, # 23 Exhibit 27, # 24 Exhibit 30, # 25 Exhibit 31, # 26 Exhibit 32, # 27 Exhibit 40)(Claiborne, William) (Entered: 07/21/2010)
127 Memorandum in opposition to re 125 Second MOTION to Compel RnD Logs filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Menefee Declaration, # 2 Exhibit Massengale Declaration, # 3 Exhibit District's discovery response 3 5 10, # 4 Text of Proposed Order)(Saindon, Andrew) (Entered: 07/26/2010)
128 NOTICE of Defendant's Expert Witness Designation by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Expert CV)(Saindon, Andrew) (Entered: 07/28/2010)
129 NOTICE PLAINTIFFS SUPPLEMENTAL DISCLOSURE OF EXPERT WITNESSES by CARL A. BARNES (Claiborne, William) (Entered: 07/28/2010)
130 Second MOTION to Compel performance oversight reports by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Text of Proposed Order)(Claiborne, William) (Entered: 07/28/2010)
131 REPLY to opposition to motion re 124 MOTION for Protective Order Regarding Costs of Copying 560 Jackets filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit)(Saindon, Andrew) (Entered: 08/02/2010)
132 Consent MOTION for Extension of Time to File Response/Reply as to 125 Second MOTION to Compel RnD Logs by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Text of Proposed Order)(Claiborne, William) (Entered: 08/02/2010)
133 NOTICE file exhibit #2 to docket # 132 by CARL A. BARNES re 132 Consent MOTION for Extension of Time to File Response/Reply as to 125 Second MOTION to Compel RnD Logs (Claiborne, William) (Entered: 08/02/2010)
134 MOTION for Extension of Time to supplement interrogatory responses by MAURICE WILLIAMS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Claiborne, William) (Entered: 08/10/2010)
135 NOTICE Notice of filing under seal of Ps. Ex. # 5 to Motion for Extension of Time to Supplement Interrogatory Responses (docket # 134). by MAURICE WILLIAMS re 134 MOTION for Extension of Time to supplement interrogatory responses (Claiborne, William) (Entered: 08/10/2010)
136 MOTION to Compel response to interrogatory # 1 and document production request by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 08/12/2010)
137 REPLY to opposition to motion re 125 Second MOTION to Compel RnD Logs filed by MAURICE WILLIAMS. (Robinson, Ralph) (Entered: 08/12/2010)
138 REPLY to opposition to motion re 99 MOTION to Compel Plaintiffs Partially Redacted Motion To Compel Production Of R&D Logs Requested In Plaintiffs Second Document Production Requests filed by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (znmw, ) (Entered: 08/12/2010)
139 ERRATA re 127 Regarding Memorandum of Points and Authorities in Opposition to Plaintiffs' Second Motion to Compel Production of R&D Logs and To Extend the Time for Plaintiffs' Discovery by DISTRICT OF COLUMBIA. (Graham, Grace) Modified on 8/13/2010 to add linkage (rdj). (Entered: 08/13/2010)
140 Memorandum in opposition to re 130 Second MOTION to Compel performance oversight reports filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Declaration Massengale, # 2 Declaration Thomas)(Graham, Grace) (Entered: 08/13/2010)
141 MOTION to Compel Response to Interrogatories by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/16/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 15 of 46

08/16/2010 08/16/2010 08/26/2010 08/26/2010 08/27/2010 08/30/2010 08/31/2010 09/02/2010 09/03/2010 09/03/2010 09/10/2010
09/10/2010 09/12/2010

142 MOTION for Discovery Interrogatories by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Claiborne, William) (Entered: 08/16/2010)
143 MOTION to Compel Documents at Simmons Deposition by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/16/2010)
144 MOTION for Extension of Time to Submit Expert Reports and Other Dates by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/26/2010)
145 Memorandum in opposition to re 134 MOTION for Extension of Time to supplement interrogatory responses filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Discovery Response, # 2 Exhibit Discovery Response, # 3 Declaration Robin Massengale, # 4 Exhibit Discovery Response, # 5 Exhibit Emails)(Graham, Grace) (Entered: 08/26/2010)
146 NOTICE of CHANGE IN FIRM NAME by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Estuar, Paul) (Entered: 08/27/2010)
147 Memorandum in opposition to re 136 MOTION to Compel response to interrogatory # 1 and document production request filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Response to Interrogatory)(Graham, Grace) (Entered: 08/30/2010)
148 Memorandum in opposition to re 141 MOTION to Compel Response to Interrogatories filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Discovery Response, # 2 Exhibit Email, # 3 Exhibit February 2010 Letter)(Graham, Grace) (Entered: 08/31/2010)
149 Memorandum in opposition to re 143 MOTION to Compel Documents at Simmons Deposition filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Discovery Response)(Graham, Grace) (Entered: 09/02/2010)
150 MOTION for Extension of Time to File Response/Reply as to 130 Second MOTION to Compel performance oversight reports by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 09/03/2010)
151 REPLY to opposition to motion re 130 Second MOTION to Compel performance oversight reports filed by CARL A. BARNES. (Claiborne, William) (Entered: 09/03/2010)
152 MEMORANDUM AND ORDER GRANTING NUNC PRO TUNC 132 Motion for Extension of Time to File Response/Reply. FURTHER ORDERED GRANTING NUNC PRO TUNC 150 Motion for Extension of Time to File Response/Reply. FURTHER ORDERED GRANTING IN PART and DENYING IN PART 123 Motion to Clarify 6/16/2010 Order. FURTHER ORDERED GRANTING IN PART and DENYING IN PART 144 Motion to Extend Dates for Submitting Expert Reports and Other Dates in Scheduling Order by 90 Days. FURTHER ORDERED DENYING IN PART AS MOOT and GRANTING IN PART 125 Motion to Compel. FURTHER ORDERED DENYING AS MOOT 130 Motion to Compel. FURTHER ORDERED GRANTING IN PART and DENYING IN PART 124 Motion for Protective Order. Enlarged scheduling dates are outlined in order. Signed by Chief Judge Royce C. Lamberth on 9/10/10. (rje, ) (Entered: 09/10/2010)
Set/Reset Deadlines: Fact Discovery due by 10/1/2010; Expert Witness Designation due by 10/1/2010; Counter Dispositive of Expert Witness(es)due by 10/15/2010; Expert Reports due by 11/15/2010; Expert Discovery due by 12/15/2010; Dispositive Motions due by 1/15/2011; Oppositions due by 2/15/2011; Replies due by 3/1/2011. (rje) (Entered: 09/10/2010)
153 REPLY to opposition to motion re 141 MOTION to Compel Response to Interrogatories filed by CARL A. BARNES. (Claiborne, William) (Entered: 09/12/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 16 of 46

09/17/2010 09/20/2010 09/20/2010 09/22/2010 09/22/2010 10/01/2010 10/01/2010
10/01/2010
10/01/2010 10/05/2010

154 ENTERED IN ERROR.....REPLY to opposition to motion re 141 MOTION to Compel Response to Interrogatories on overdetention and strip search samples filed by CARL A. BARNES. (Claiborne, William) Modified on 9/20/2010 (znmw, ). (Entered: 09/17/2010)
NOTICE OF ERROR re 154 Reply to opposition to Motion; emailed to claibornelaw@gmail.com, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect event used, 2. Incorrect document/case, 3. Please refile document, 4. Document does not match docket entry; please refile using correct event or with correct document. (znmw, ) (Entered: 09/20/2010)
155 REPLY to opposition to motion re 142 MOTION for Discovery Interrogatories on OD and SS spreadsheet filed by CARL A. BARNES. (Claiborne, William) (Entered: 09/20/2010)
156 NOTICE by CARL A. BARNES re 149 Memorandum in Opposition (Attachments: # 1 resumed depo notice)(Claiborne, William) (Entered: 09/22/2010)
157 MEMORANDUM AND ORDER denying 134 Motion for Extension of Time. FURTHER ORDERED denying 136 Motion to Compel. FURTHER ORDERED granting 141 Motion to Compel. FURTHER ORDERED denying WITHOUT PREJUDICE 142 Motion for Discovery. FURTHER ORDERED denying AS MOOT 143 Motion to Compel. Signed by Chief Judge Royce C. Lamberth on 9/22/10. (rje, ) Modified on 9/23/2010 (rje, ). (Entered: 09/23/2010)
158 NOTICE of Expert Witness Designation by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 10/01/2010)
159 Consent MOTION clarify the date of the close of fact discovery established by the Court in its order dated 9/10/10 (docket # 152) and the related deadline for supplementing their responses to defendants interrogations established in the Courts order dated 9/22/10 (docket # 157) re 152 Order on Motion for Miscellaneous Relief, Order on Motion for Protective Order, Order on Motion to Compel,, Order on Motion for Extension of Time to File Response/Reply,,,,,,,,,,,,,,,,,,,,,,, 157 Order on Motion for Extension of Time to, Order on Motion to Compel,, Order on Motion for Discovery,,,,,, by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/01/2010)
160 Consent MOTION CORRECTED clarify the date of the close of fact discovery established by the Court in its order dated 9/10/10 (docket # 152) and the related deadline for supplementing their responses to defendants interrogations established in the Courts order dated 9/22/2010 (docket # 157) re 159 Consent MOTION clarify the date of the close of fact discovery established by the Court in its order dated 9/10/10 (docket # 152) and the related deadline for supplementing their responses to defendants interrogations established in the Courts ordeConsent MOTION clarify the date of the close of fact discovery established by the Court in its order dated 9/10/10 (docket # 152) and the related deadline for supplementing their responses to defendants interrogations established in the Courts ordeConsent MOTION clarify the date of the close of fact discovery established by the Court in its order dated 9/10/10 (docket # 152) and the related deadline for supplementing their responses to defendants interrogations established in the Courts orde, 152 Order on Motion for Miscellaneous Relief, Order on Motion for Protective Order, Order on Motion to Compel,, Order on Motion for Extension of Time to File Response/Reply,,,,,,,,,,,,,,,,,,,,,,, 157 Order on Motion for Extension of Time to, Order on Motion to Compel,, Order on Motion for Discovery,,,,,, by CARL A. BARNES (Attachments: # 1 Exhibit redlined copy of corrected motion to clarify, # 2 Exhibit redlined copy of corrected proposed order, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 10/01/2010)
161 NOTICE Second Supplemental Expert Witness Designation by CARL A. BARNES (Claiborne, William) (Entered: 10/01/2010)
ORDER granting 160 Plaintiffs' Corrected Consent Motion to Clarify Deadline for Close of Fact Discovery and Related Deadline. It is hereby ORDERED that the deadline for the close of fact discovery and the related deadline for supplementing plaintiffs' responses to defendant's interrogatories is October 15, 2010. Signed by Chief Judge Royce C. Lamberth on October 5, 2010. (lcrcl4) (Entered: 10/05/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 17 of 46

10/06/2010 10/14/2010 10/27/2010 10/27/2010 10/29/2010 11/02/2010 11/02/2010 11/12/2010
11/15/2010 11/17/2010 11/22/2010
11/23/2010 12/02/2010

Set/Reset Deadlines: Fact Discovery and Plaintiffs'Supplemental Responses to defendant's Interrogatories due by 10/15/2010. (rje) (Entered: 10/06/2010)
162 Joint MOTION for Extension of Time to Complete Discovery By October 29, 2010 by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 10/14/2010)
163 MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562 JACKETS REFLECTING RELEASES DURING THE FIRST YEAR OF THE CLASS PERIOD by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 10/27/2010)
164 NOTICE change in factual predicate of motion to extend #162 by CARL A. BARNES re 162 Joint MOTION for Extension of Time to Complete Discovery By October 29, 2010 (Claiborne, William) (Entered: 10/27/2010)
165 Memorandum in opposition to re 162 Joint MOTION for Extension of Time to Complete Discovery By October 29, 2010 filed by CARL A. BARNES. (Claiborne, William) (Entered: 10/29/2010)
166 NOTICE Regarding Plaintiffs' Notice (Docket No. 164) and Opposition to Joint Motion to Extend Discovery Deadlines Until 10/29/2010 (Docket No. 165) by DISTRICT OF COLUMBIA re 165 Memorandum in Opposition, 164 Notice (Other) (Attachments: # 1 Exhibit Oct. 20, 2010 Email, # 2 Exhibit Oct. 1 and 8 Emails)(Graham, Grace) (Entered: 11/02/2010)
167 REPLY to opposition to motion re 162 Joint MOTION for Extension of Time to Complete Discovery By October 29, 2010 filed by DISTRICT OF COLUMBIA. (See Docket Entry 166 to view document. Counsel is instructed to docket the reply as a separate docket entry in the future) (rdj) (Entered: 11/03/2010)
168 Memorandum in opposition to re 163 MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562 JACKETS REFLECTING RELEASES DURING THE FIRST YEAR OF THE CLASS PERIOD MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562 JACKETS REFLECTING RELEASES DURING THE FIRST YEAR OF THE CLASS PERIOD filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 7.16.2010 Interrogatories, # 2 Declaration Souverain, # 3 Exhibit Mediation Sample Interrogatories, # 4 Exhibit 3.5.2010 Interroagotories, # 5 Exhibit 3.8.2010 Interrogatories)(Graham, Grace) (Entered: 11/12/2010)
169 MOTION for Leave to File Supplement Reports by Dr. Kriegler and Mr. Day by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 11/15/2010)
170 MOTION for Extension of Time to File Response/Reply to Defendant's Opposition to Plaintiff's Motion to Compel Response to Interrogatory by CARL A. BARNES (Robinson, Ralph) (Entered: 11/17/2010)
171 REPLY to opposition to motion re 163 MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562 JACKETS REFLECTING RELEASES DURING THE FIRST YEAR OF THE CLASS PERIOD MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562 JACKETS REFLECTING RELEASES DURING THE FIRST YEAR OF THE CLASS PERIOD filed by CARL A. BARNES. (Claiborne, William) (Entered: 11/22/2010)
172 MOTION to Strike Plaintiffs' Interrogatory Response Supplement by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Interrogatory Responses, # 2 Exhibit Email Dated Nov. 6)(Graham, Grace) (Entered: 11/23/2010)
173 Memorandum in opposition to re 169 MOTION for Leave to File Supplement Reports by Dr. Kriegler and Mr. Day filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 12/02/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 18 of 46

12/03/2010 12/03/2010
12/06/2010
12/06/2010 12/08/2010
12/09/2010 12/10/2010 12/13/2010 12/13/2010 12/14/2010 12/14/2010 12/16/2010 12/20/2010

174 MOTION file third amended complaint by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 12/03/2010)
175 NOTICE Notice of filing under seal of a clean copy of the proposed Third Amended Complaint (and a copy redlined to show changes from the Second Amended Complaint) as attachments to Plaintiffs Motion for leave to their Third Amended Complaint (DOCKET # 174). by CARL A. BARNES re 174 MOTION file third amended complaint (Claiborne, William) Modified on 12/9/2010 (rdj). (Exhibits Lodged Under Seal) (Entered: 12/03/2010)
176 ORDER granting 162 Joint Motion to Extend Discovery Deadlines Ten Business Days; extending fact discovery in the liability phase nunc pro tunc until November 5, 2010; denying 163 Plaintiffs' Motion to Compel Response to Interrogatory Asking for Information ("Jacket Data") on the 562 Jackets Reflecting Releases During the First Year of the Class Period; granting 170 Plaintiff's Motion for Extension of Time for Filing Reply; extending the deadline for filing plaintiffs' reply nunc pro tunc to November 22, 2010. Signed by Chief Judge Royce C. Lamberth on December 6, 2010. (lcrcl4) (Entered: 12/06/2010)
177 Memorandum in opposition to re 172 MOTION to Strike Plaintiffs' Interrogatory Response Supplement filed by CARL A. BARNES. (Attachments: # 1 Errata plaintiffs gmail og)(Claiborne, William) (Entered: 12/06/2010)
178 Emergency MOTION for Protective Order and to Extend Expert Discovery by Four Business Days, or in the Alternative, Delay All Expert Depositions Pending the Court's Decision on Plaintiffs' Motion to File Supplemental Reports by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Kriegler Clarification (Report))(Graham, Grace). Added MOTION for Extension of Time to Complete Discovery on 12/9/2010 (rdj). (Counsel is instructed to docket all parts of the motion in the future). (Entered: 12/08/2010)
179 REPLY to opposition to motion re 169 MOTION for Leave to File Supplement Reports by Dr. Kriegler and Mr. Day filed by CARL A. BARNES. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Claiborne, William) (Entered: 12/09/2010)
180 ORDER granting 169 Motion for Leave to File; granting 178 Motion for Extension of Time to Complete Discovery. It is furthermore ORDERED that plaintiffs' experts shall submit their supplements to their expert reports forthwith; and it is furthermore ORDERED that expert discovery is extended until December 21, 2010. Signed by Chief Judge Royce C. Lamberth on December 10, 2010. (lcrcl4) (Entered: 12/10/2010)
181 Emergency MOTION for Extension of Time to Complete Expert Discovery until December 31, 2010, and to Modify the Scheduling Order (unopposed) by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 12/13/2010)
182 REPLY to opposition to motion re 172 MOTION to Strike Plaintiffs' Interrogatory Response Supplement filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 12/13/2010)
183 NOTICE availability Dr Kriegler by CARL A. BARNES re 181 Emergency MOTION for Extension of Time to Complete Expert Discovery until December 31, 2010, and to Modify the Scheduling Order (unopposed) (Claiborne, William) (Entered: 12/14/2010)
184 NOTICE Service on defendant of Mr. Days and Dr. Krieglers supplemental expert reports and workpapers by CARL A. BARNES re 180 Order on Motion for Leave to File, Order on Motion for Extension of Time to Complete Discovery,, (Claiborne, William) (Entered: 12/14/2010)
185 ORDER denying 172 defendant's Motion to Strike Plaintiffs' Interrogatory Response Supplement; granting 181 defendant's Emergency Motion for Extension of Time to Complete Expert Discovery Until December 31, 2010, and to Modify the Scheduling Order. Signed by Chief Judge Royce C. Lamberth on December 16, 2010. (lcrcl4) (Entered: 12/16/2010)
186 Memorandum in opposition to re 174 MOTION file third amended complaint filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 12/20/2010)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 19 of 46

12/27/2010 12/28/2010 12/29/2010 12/29/2010 12/29/2010
12/30/2010 12/30/2010 01/04/2011 01/04/2011 01/06/2011
01/07/2011

187 REPLY to opposition to motion re 174 MOTION file third amended complaint filed by CARL A. BARNES. (Claiborne, William) (Entered: 12/27/2010)
188 Emergency MOTION for Extension of Time to Complete Discovery of Plaintiffs' Expert or in the Alternative, MOTION to Strike Plaintiffs' Expert Witness by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Text of Proposed Order, # 14 Text of Proposed Order)(Saindon, Andrew) (Entered: 12/28/2010)
189 NOTICE of Plaintiffs' intent to file an opposition to Defendants Emergency Motion to Extend Deadline, or, in the Alternative, to Strike Plaintiffs Expert Witness by CARL A. BARNES re 188 Emergency MOTION for Extension of Time to Complete Discovery of Plaintiffs' Expert or in the Alternative MOTION to Strike Plaintiffs' Expert Witness (Attachments: # 1 Exhibit Sean Day Affidavit)(Claiborne, William) (Entered: 12/29/2010)
190 RESPONSE re 189 Notice (Other), Notice (Other) filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Declaration Saindon Declaration, # 2 Exhibit email of Dec 27 2010)(Saindon, Andrew) (Entered: 12/29/2010)
191 Emergency MOTION for Protective Order Plaintiffs Emergency Motion For A Protective Order Requiring Defendant To Pay Dr. Krieglers Actual Deposition Preparation Time, Prohibiting Defendant From Deposing Dr. Kriegler, Or, In The Alternative, To Preclude Defendant From Using The Fruits Of Dr. Krieglers Deposition by CARL A. BARNES (Attachments: # 1 Exhibit email, # 2 Exhibit email, # 3 Exhibit Day affidavit, # 4 Exhibit email, # 5 Text of Proposed Order)(Claiborne, William) (Entered: 12/29/2010)
192 NOTICE Supplemental Statement Of Plaintiffs Intent To File An Opposition To Defendants Emergency Motion To Extend Deadline, Or, In The Alternative, To Strike Plaintiffs Expert Witness by CARL A. BARNES re 188 Emergency MOTION for Extension of Time to Complete Discovery of Plaintiffs' Expert or in the Alternative MOTION to Strike Plaintiffs' Expert Witness (Attachments: # 1 Exhibit email, # 2 Exhibit email, # 3 Exhibit Day affidavit)(Claiborne, William) (Entered: 12/30/2010)
193 NOTICE of Intent to File Opposition by DISTRICT OF COLUMBIA re 191 Emergency MOTION for Protective Order Plaintiffs Emergency Motion For A Protective Order Requiring Defendant To Pay Dr. Krieglers Actual Deposition Preparation Time, Prohibiting Defendant From Deposing Dr. Kriegler, Or, In The Alternative, To Preclud (Attachments: # 1 Exhibit Email, # 2 Exhibit Email)(Graham, Grace) (Entered: 12/30/2010)
Set/Reset Deadlines: Dispositive Motions due by 1/31/2011. Oppositions to Dispositive Motions due by 3/1/2011. Reply to Oppositions to Dispositive Motions due by 3/15/2011. (rje) (Entered: 01/04/2011)
194 Memorandum in opposition to re 191 Emergency MOTION for Protective Order Plaintiffs Emergency Motion For A Protective Order Requiring Defendant To Pay Dr. Krieglers Actual Deposition Preparation Time, Prohibiting Defendant From Deposing Dr. Kriegler, Or, In The Alternative, To Preclud filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/04/2011)
195 MEMORANDUM AND ORDER granting in part and denying in part 188 Defendant's Emergency Motion to Extend Deadlines or, in the Alternative, to Strike Plaintiffs' Expert Witness and granting in part, denying as moot in part, and deferring judgment in part 191 Plaintiffs' Emergency Motion for a Protective Order Requiring Defendant to Pay Dr. Kriegler's Actual Deposition Preparation Time, Prohibiting Defendant from Deposing Dr. Kriegler, or, in the Alternative, to Preclude Defendant from Using the Fruits of Dr. Kriegler's Deposition. Signed by Chief Judge Royce C. Lamberth on January 6, 2011. (lcrcl4) (Entered: 01/06/2011)
196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in the Alternative, to Preclude his Testimony by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/07/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 20 of 46

01/07/2011 01/10/2011 01/10/2011
01/10/2011
01/10/2011 01/11/2011 01/11/2011 01/11/2011 01/11/2011 01/12/2011 01/13/2011 01/20/2011 01/20/2011

197 NOTICE of Filing of Attachments by DISTRICT OF COLUMBIA re 196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in the Alternative, to Preclude his Testimony (Attachments: # 1 Exhibit AJS email, # 2 Exhibit WC email)(Saindon, Andrew) (Entered: 01/07/2011)
198 ORDER granting 196 defendant's Emergency Motion for an Order to Produce Mr. Day for Deposition on January 10, 11, 12, or 14, 2011, or, in the Alternative, to Preclude his Testimony. Signed by Chief Judge Royce C. Lamberth on January 10, 2011. (lcrcl4) (Entered: 01/10/2011)
199 MOTION vacate Order Granting Defendants Emergency Motion To Produce Mr. Day For A Deposition On January 10, 11, 12 Or 14, Or, In The Alternative, To Preclude His Testimony re 196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in the Alternative, to Preclude his Testimony by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 01/10/2011)
200 Memorandum in opposition to re 199 MOTION vacate Order Granting Defendants Emergency Motion To Produce Mr. Day For A Deposition On January 10, 11, 12 Or 14, Or, In The Alternative, To Preclude His Testimony re 196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in MOTION vacate Order Granting Defendants Emergency Motion To Produce Mr. Day For A Deposition On January 10, 11, 12 Or 14, Or, In The Alternative, To Preclude His Testimony re 196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/10/2011)
201 ORDER denying 199 plaintiff's Motion to the Court to Reconsider Order Granting Defendant's Emergency Motion to Produce Mr. Day for a Deposition on January 10, 11, 12, or 14, 2011, or, in the Alternative, to Preclude his Testimony. Signed by Chief Judge Royce C. Lamberth on January 10, 2011. (lcrcl4) (Entered: 01/10/2011)
202 Memorandum in opposition to re 196 Emergency MOTION for Order to Produce Mr. Day for Deposition or, in the Alternative, to Preclude his Testimony filed by CARL A. BARNES. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Claiborne, William) (Entered: 01/11/2011)
203 Emergency MOTION for Extension of Time to Complete Discovery CONSENTED TO by the District by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 01/11/2011)
204 ORDER granting 203 Plaintiffs' Consent Emergency Motion to Extend Time for Discovery by Setting Mr. Day's Deposition for Tuesday, January 18, 2011 and by Extending the Parties' Deadline for Filing Dispositive Motions in the Case a Corresponding Number of Days Until February 4, 2011. Signed by Chief Judge Royce C. Lamberth on January 11, 2011. (lcrcl4) (Entered: 01/11/2011)
205 NOTICE Notice of Submission of Affidavit of Sean Day in support of plaintiffs Opposition (docket # 202) to Defendants Emergency Motion to Produce Mr. Day for a Deposition on January 10, 11, 12 or 14, or, in the Alternative, to Preclude His Testimony by CARL A. BARNES re 202 Memorandum in Opposition, (Attachments: # 1 Exhibit Affidavit Sean Day, Esq.)(Claiborne, William) (Entered: 01/11/2011)
Set/Reset Deadlines: Dispositive Motions due by 2/4/2011. (rje, ) (Entered: 01/12/2011)
206 MOTION to Compel Payment Of Time Dr. Kriegler Spent Preparing For His Deposition by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Claiborne, William) (Entered: 01/13/2011)
207 Memorandum in opposition to re 206 MOTION to Compel Payment Of Time Dr. Kriegler Spent Preparing For His Deposition filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Kriegler depo excerpt, # 2 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/20/2011)
208 ORDER granting 174 plaintiffs' Motion for Leave to Amend Second Amended Complaint for Money Damages and Injunctive Relief and Jury Demand. Signed by Chief Judge Royce C. Lamberth on January 20, 2011. (lcrcl4) (Entered: 01/20/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 21 of 46

01/20/2011 01/30/2011 01/30/2011 01/31/2011
02/04/2011
02/05/2011 02/05/2011 02/05/2011 02/05/2011 02/05/2011 02/05/2011

329 Third AMENDED COMPLAINT against DISTRICT OF COLUMBIA filed by CARL A. BARNES. (Attachments: # 1 Exhibit Redline copy)(rdj) (Entered: 01/12/2012)
209 REPLY to opposition to motion re 206 MOTION to Compel Payment Of Time Dr. Kriegler Spent Preparing For His Deposition filed by CARL A. BARNES. (Attachments: # 1 Exhibit depo transcript)(Claiborne, William) (Entered: 01/30/2011)
210 Consent MOTION for Leave to File Excess Pages and to file by midnight local time by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 01/30/2011)
MINUTE ORDER granting 210 plaintiffs' Consent Motion for Leave to File 25 Excess Pages in Their Motion for Summary Judgment and to File the Motion by Midnight Local Time. Plaintiffs may file 25 extra pages in their motion for summary judgment, and plaintiffs may file their papers by midnight on 2/4/11 local (California) time, which will be several hours past midnight District of Columbia time on 2/4/11. Signed by Chief Judge Royce C. Lamberth on January 31, 2011. (lcrcl4) (Entered: 01/31/2011)
211 MOTION for Summary Judgment by DISTRICT OF COLUMBIA (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit Declaration of Devon Brown, # 4 Exhibit PS 4353, # 5 Exhibit R and D Post Order Jun 30 2007, # 6 Exhibit PS 5009 2C, # 7 Exhibit DC Resp to Interrog and Doc, # 8 Exhibit Declaration of Karen Albert, # 9 Exhibit Discrepancy Report sample trendlines, # 10 Exhibit Kriegler Depo excerpts, # 11 Exhibit Kriegler Attachment D, # 12 Exhibit DC Contention Interrog Resp and Spreadsheet, # 13 Exhibit Day Depo excerpts, # 14 Exhibit GSCH Post Order Jun 30 2007, # 15 Exhibit PS 5009 2A, # 16 Exhibit PS 5009 2B, # 17 Exhibit Sample contraband reports, # 18 Exhibit PS 5010 3D)(Saindon, Andrew) (Entered: 02/04/2011)
212 NOTICE Plaintiffs' Exhibits Plaintiffs' Exhibits, Part 1 by CARL A. BARNES, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 16)(Claiborne, William) Modified on 2/7/2011 to correct event(rdj). (Entered: 02/05/2011)
213 NOTICE Plaintiffs' Exhibits−Part 4 by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit 54, # 2 Exhibit 55, # 3 Exhibit 58, # 4 Exhibit 101, # 5 Exhibit 109, # 6 Exhibit 111, # 7 Exhibit 112, # 8 Exhibit 170, # 9 Exhibit 171, # 10 Exhibit 172, # 11 Exhibit 173, # 12 Exhibit 174, # 13 Exhibit 190, # 14 Exhibit 191, # 15 Exhibit 192)(Claiborne, William) (Entered: 02/05/2011)
214 NOTICE Plaintiffs' Exhibits−Part 5 by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit 193, # 2 Exhibit 205, # 3 Exhibit 206, # 4 Exhibit 207, # 5 Exhibit 208, # 6 Exhibit 210, # 7 Exhibit 276, # 8 Exhibit 277, # 9 Exhibit 278, # 10 Exhibit 300, # 11 Exhibit 758, # 12 Exhibit 759, # 13 Exhibit 763, # 14 Exhibit 764, # 15 Exhibit 769)(Claiborne, William) (Entered: 02/05/2011)
215 NOTICE Plaintiffs' Exhibits−Part 6 by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit 770, # 2 Exhibit 775, # 3 Exhibit 778, # 4 Exhibit 791, # 5 Exhibit 811, # 6 Exhibit 823, # 7 Exhibit 834, # 8 Exhibit 835, # 9 Exhibit 837, # 10 Exhibit 844, # 11 Exhibit 850, # 12 Exhibit 902, # 13 Exhibit 903, # 14 Exhibit 34A, # 15 Exhibit 3A)(Claiborne, William) (Entered: 02/05/2011)
216 NOTICE Plaintiffs' Exhibits−Part 7 by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit 99A, # 2 Exhibit 903, # 3 Exhibit 1050, # 4 Exhibit 1051, # 5 Exhibit 1052, # 6 Exhibit 1053, # 7 Exhibit 1054, # 8 Exhibit 1055, # 9 Exhibit 1056)(Claiborne, William) (Entered: 02/05/2011)
217 MOTION for Summary Judgment by CARL A. BARNES (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Claiborne, William) Modified on 2/8/2011 to add linkage (rdj). (Exhibits 212 , 213 , 214 , 215 , 216 ) (Entered: 02/05/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 22 of 46

02/05/2011 02/07/2011 02/07/2011 02/07/2011 02/07/2011 02/09/2011
02/09/2011 02/09/2011 02/18/2011 02/28/2011 03/01/2011 03/01/2011
03/02/2011

218 MOTION late file certain exhibits rejected by ECF system re 217 MOTION for Summary Judgment by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/05/2011)
219 NOTICE Filing Under Seal of Exhibits in Support of Plaintiffs Motion for Summary Judgment (Docket # 217) by CARL A. BARNES re 217 MOTION for Summary Judgment (Claiborne, William) (Entered: 02/07/2011)
NOTICE OF CORRECTED DOCKET ENTRY: re 212 MOTION for Leave to File Excess Pages Plaintiffs' Exhibits, Part 1 was entered in error and counsel is instructed to file pleadings using the correct event. (rdj) (Entered: 02/07/2011)
220 Consent MOTION direct the Clerk to remove plaintiffs memorandum of law in support of motion for summary judgment (docket # 217−1) and plaintiffs statement of undisputed facts (docket # 217−2) from the ECF docket and place them under seal re 217 MOTION for Summary Judgment by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/07/2011)
221 SEALED Exhibits filed by CARL A. BARNES. re 219 Notice (Other) filed by CARL A. BARNES. (This document is SEALED and only available to authorized persons.)(Exhibit 116) (Attachments: # 1 Exhibit 150, # 2 Exhibit 176, # 3 Exhibit 275, # 4 Exhibit 280, # 5 Exhibit 300, # 6 Exhibit 406, # 7 Exhibit 420, # 8 Exhibit 663, # 9 Exhibit 99B)(zrdj) (Entered: 02/08/2011)
222 NOTICE re−file rejected exhibits by CARL A. BARNES re 218 MOTION late file certain exhibits rejected by ECF system re 217 MOTION for Summary Judgment, 217 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit e, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit)(Claiborne, William) (Entered: 02/09/2011)
223 NOTICE filing rejected exhibits second notice by CARL A. BARNES re 218 MOTION late file certain exhibits rejected by ECF system re 217 MOTION for Summary Judgment, 217 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Claiborne, William) (Entered: 02/09/2011)
224 NOTICE errata in summary judgment motion by CARL A. BARNES re 218 MOTION late file certain exhibits rejected by ECF system re 217 MOTION for Summary Judgment, 217 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Claiborne, William) (Entered: 02/09/2011)
225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Albert invoice, # 2 Exhibit 1 19 11 email GG to WC, # 3 Exhibit Day invoice, # 4 Exhibit Albert Expert report excerpts, # 5 Declaration Karen Albert, # 6 Exhibit 1 31 11 email GG to WC, # 7 Text of Proposed Order)(Saindon, Andrew) (Entered: 02/18/2011)
226 MOTION for Leave to File Excess Pages and To File the Opposition By Midnight Pacific Daylight Time by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/28/2011)
227 Memorandum in opposition to re 226 MOTION for Leave to File Excess Pages and To File the Opposition By Midnight Pacific Daylight Time filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 03/01/2011)
228 Memorandum in opposition to re 217 MOTION for Summary Judgment filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Hoey Declaration, # 2 Exhibit Cipullo Depo, # 3 Exhibit Simmons Depo Excerpts, # 4 Exhibit Watford Depo Excerpts, # 5 Exhibit Graham Depo Excerpts, # 6 Exhibit Britton Depo Excerpts, # 7 Statement of Facts (Response to Plaintiffs'), # 8 Text of Proposed Order)(Saindon, Andrew) (Entered: 03/01/2011)
229 Memorandum in opposition to re 211 MOTION for Summary Judgment filed by CARL A. BARNES. (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17

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03/02/2011 03/07/2011 03/09/2011 03/14/2011 03/14/2011 03/15/2011 03/15/2011 03/16/2011
03/16/2011 03/17/2011
03/17/2011 03/17/2011 03/17/2011
03/17/2011

Exhibit, # 18 Exhibit)(Claiborne, William) (Entered: 03/02/2011)
230 MOTION for Extension of Time to Complete Discovery on group searches of court returns by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/02/2011)
231 MOTION for Extension of Time to File Response/Reply as to 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/07/2011)
232 Memorandum in opposition to re 231 MOTION for Extension of Time to File Response/Reply as to 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 03/09/2011)
233 MOTION for Leave to File Excess Pages by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/14/2011)
234 Consent MOTION for Extension of Time to File Response/Reply as to 217 MOTION for Summary Judgment by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/14/2011)
235 REPLY to opposition to motion re 211 MOTION for Summary Judgment filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Excerpt of depo of Allan E. Lucas, Jr. in Doe v DC, 2002 cv 00342(ESH))(Saindon, Andrew) (Entered: 03/15/2011)
236 Memorandum in opposition to re 233 MOTION for Leave to File Excess Pages filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 03/15/2011)
237 REPLY to opposition to motion re 217 MOTION for Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Plaintiffs' exhibit list, # 2 Exhibit Kriegler depo, # 3 Exhibit Day depo, # 4 Exhibit Exhibit 1 from Simmons depo, # 5 Exhibit MCA email, # 6 Exhibit District disco response, # 7 Exhibit Lynch courtview, # 8 Exhibit Sheriff's directive, # 9 Exhibit Sheriff Ex, # 10 Exhibit Sheriff release proposal, # 11 Exhibit Kriegler clarification)(Claiborne, William) Modified to add filers on 3/17/2011 (znmw, ). (Entered: 03/16/2011)
238 MOTION to Strike 237 Reply to opposition to Motion,, by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 03/16/2011)
239 NOTICE FILING UNDER SEAL OF EXHIBITS IN SUPPORT OF PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (DOCKET 237) by ALL PLAINTIFFS re 237 Reply to opposition to Motion,, (Claiborne, William) Modified filer on 3/18/2011 (znmw, ). (Entered: 03/17/2011)
240 NOTICE Filing Under Seal Of Exhibits In Support Of Plaintiffs Opposition to Defendants Motion For Summary Judgment (Docket 229) by CARL A. BARNES re 229 Memorandum in Opposition, (Claiborne, William) (Entered: 03/17/2011)
NOTICE OF ERROR re 237 Reply to opposition to Motion; emailed to claibornelaw@gmail.com, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. Counsel is reminded to select all plaintiffs represented in the pleading when filing in future. (znmw, ) (Entered: 03/17/2011)
241 SEALED Exhibits In Support Of Plaintiffs Opposition to Defendants Motion For Summary Judgment filed by CARL A. BARNES. re 229 Memorandum in Opposition, filed by CARL A. BARNES, 240 Notice (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1092, # 2 Exhibit 1093, # 3 Exhibit 1096, # 4 Exhibit 1097, # 5 Exhibit 1098, # 6 Exhibit 1099, # 7 Exhibit 1100, # 8 Exhibit 1108, # 9 Exhibit 1109, # 10 Exhibit 1115, # 11 Exhibit 1116, # 12 Exhibit 1117, # 13 Exhibit 1118, # 14 Exhibit 1119, # 15 Exhibit 1120)(zrdj) (Entered: 03/21/2011)
242 SEALED EXHIBITS filed by CARL A. BARNES. re 239 Notice, 237 Reply to opposition to Motion,, filed CARL A. BARNES. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 03/21/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 24 of 46

03/21/2011
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243 Memorandum in opposition to re 230 MOTION for Extension of Time to Complete Discovery on group searches of court returns filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Declaration Godwin Declaration, # 2 Declaration Watford Declaration, # 3 Exhibit Interrogatory Response)(Graham, Grace) (Entered: 03/21/2011)
244 NOTICE Regarding Filing Analysis of Late Releases by DISTRICT OF COLUMBIA re 228 Memorandum in Opposition, (Attachments: # 1 Exhibit Analysis of Releases)(Graham, Grace) (Entered: 03/23/2011)
245 ORDER granting nunc pro tunc 218 plaintiffs' Motion to Late File Certain Exhibits; granting 220 plaintiffs' Emergency Consent Motion to Remove Plaintiffs' Memorandum of Law in Support of Motion for Summary Judgment and Plaintiffs' Statement of Undisputed Material Facts from the ECF Docket and Place Them Under Seal; granting nunc pro tunc 226 plaintiffs' Partial Consent Motion for Leave to File 25 Excess Pages and to File the Opposition by Midnight Pacific Daylight Time; granting 230 plaintiffs' Motion to Enlarge Time in Which to File Exhibits; granting 231 plaintiffs' Motion for Extension of Time to Respond to Defendant's Motion to Compel Payment of Ms. Albert's Deposition Time; granting nunc pro tunc 233 plaintiffs' Motion for Leave to File 10 Excess Pages; granting nunc pro tunc 234 plaintiffs' Motion for Extension of Time to File Reply; denying 238 defendant's Motion to Strike Plaintiffs' Reply. Signed by Chief Judge Royce C. Lamberth on March 25, 2011. (lcrcl4) (Entered: 03/25/2011)
246 ORDER granting in part and denying in part 206 plaintiffs' Motion to Compel Payment of Time Dr. Kriegler Spent Preparing for His Deposition. Signed by Chief Judge Royce C. Lamberth on March 25, 2011. (lcrcl4) (Entered: 03/25/2011)
247 NOTICE Regarding Correction in Defendant's Response to Plaintiff's Statement of Material Facts Not In Dispute, Document Number 228−7 by DISTRICT OF COLUMBIA re 228 Memorandum in Opposition, (Attachments: # 1 Declaration Graham, # 2 Exhibit Graham Deposition)(Graham, Grace) (Entered: 03/25/2011)
248 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit DC Circuit decision Bame v Dillard)(Saindon, Andrew) (Entered: 03/28/2011)
249 MOTION to Intervene by SIMON BANKS (BANKS, SIMON) (Entered: 03/29/2011)
250 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit, # 2 Errata)(BANKS, SIMON) (Entered: 04/01/2011)
251 Memorandum in opposition to re 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time filed by CARL A. BARNES. (Attachments: # 1 Exhibit Albert report, # 2 Exhibit albert depo)(Claiborne, William) (Entered: 04/01/2011)
252 MOTION for Extension of Time to by CARL A. BARNES (Claiborne, William) (Entered: 04/01/2011)
MINUTE ORDER granting 252 plaintiffs' unopposed Motion for One−Week Extension of Time to File Evidence Relating to Group Searches. Plaintiffs may file any such evidence on or before April 8, 2011. Signed by Chief Judge Royce C. Lamberth on April 5, 2011. (lcrcl4) (Entered: 04/05/2011)
Set/Reset Deadlines: Plaintiffs Brief due by 4/8/2011. (rje, ) (Entered: 04/05/2011)
253 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(BANKS, SIMON) (Entered: 04/06/2011)
254 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(BANKS, SIMON) (Entered: 04/07/2011)
255 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit, # 2 Exhibit)(BANKS, SIMON) (Entered: 04/07/2011)

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04/07/2011 04/07/2011
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256 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(BANKS, SIMON) (Entered: 04/07/2011)
257 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit Petition for Removal to USDC ED VA, CASE RELATED TO KRAMER'S TRANSFER IN VIO OF EXTRADITION RIGHTS, # 2 Exhibit COMPT TO U.S. ATTY GEN RE ZENO, WHO FALSELY USED GRAND JURY SUBPOENAS WHEN NO U.S. GRAND JURY INVOLVED IN LOCAL MISDEMEANOR CONTEMPT PROC, # 3 Exhibit ELLIOTT CASEY'S (COMWLTH ATTY) PRETRIAL PROSECUTORIAL MISCONDUCT WITNESS TAMPERING, # 4 Exhibit ATTYS HENNESY & NORRIS, IMPOSED UPON BANKS REFUSED TO CALL BANKS FBI CLIENTS, CIA, HOMELND SECURITY AND ATTYS BANKS REPTD, AND REFUSED TO CALL DET PAK, SOLE GRAND JURY WITNESS WHO PERJURED AFFIDAVIT AND SEIZED ALL CLIENTS FILES BASED ON 1 COMP, # 5 Exhibit COMPT TO FBI RE ATTEMPT TO SET UP BANKS WITH KNIFE, # 6 Exhibit WRITTEN OBJECTION TO EXTRADITION TO VA, INDICTMENTS A SHAM & CONSPIRACY BASED UPON PROTECTED CONDUCT, # 7 Exhibit VSB ETHICS COUNSEL OPINION NON−LAWYERS PRACTICING BF FED GOV, EEOC, MSPB, ARE EXEMPT FROM VA UPL)(BANKS, SIMON) (Entered: 04/07/2011)
258 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit Pet for Writ of Habeas Corpus showing interstate conspiracy Judicial and Prosecutorial Vindictiveness Designed to fabricate charges and falsely imprison Banks for Petitioning Congress & Govt for Redress)(BANKS, SIMON) (Entered: 04/07/2011)
259 MEMORANDUM re 249 MOTION to Intervene filed by SIMON BANKS by SIMON BANKS. (Attachments: # 1 Exhibit Letter to Ben Katz Asst Atty Gen 8−30−8 re Failure of Judge Kemler to serv copy of Order DisMissg PWHC, # 2 Exhibit LETTER TO BEN KATZ RE FAILURE OF JUDGE KEMLER TO SERV COPY OF ORDER DMSG PWHC, # 3 Exhibit LETTER TO BEN KATZ RE MOT TO VACATE ORDER FOR FAILURE OF JUDGE TO SERV COPY OF ORDER ON PARTIES, # 4 Exhibit LETTER TO BEN KATZ RE MOT TO RECUSE JUDGE KEMLER FOR FAILURE TO SERVE ORDER DMSG PWHC A COVER UP, # 5 Exhibit AFFIDAIT OF BANKS RE MOT TO VACATE FOR JUDGE FAILURE TO SERV PARTIES WITH ORDER DISMG PWHC, COVERING UP VA CONSPIRACY TO FALSELY IMPRISON BANKS PURSUANT TO WAGNER−KRAMER−ZENO−GRIFFITH CONSPIRACY TO PUNISH BANKS FOR PETIONING CONGRESS AND GOVT FOR REDRESS)(BANKS, SIMON) (Entered: 04/08/2011)
260 MOTION for Extension of Time to File Response/Reply as to 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 04/08/2011)
261 MOTION for Extension of Time to Complete Discovery by CARL A. BARNES (Claiborne, William) (Entered: 04/08/2011)
262 Memorandum in opposition to re 249 MOTION to Intervene filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 04/12/2011)
263 MOTION to preclude Simon Banks from filing any further motions in this matter without first obtaining leave of Court by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 04/12/2011)
264 Memorandum in opposition to re 260 MOTION for Extension of Time to File Response/Reply as to 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/13/2011)
265 NOTICE by CARL A. BARNES re 217 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Claiborne, William) (Entered: 04/15/2011)

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MINUTE ORDER granting nunc pro tunc 261 plaintiffs' Consent Motion for Extension of Time to File Evidence Relating to Group Searches. Plaintiffs may file any such evidence on or before April 15, 2011. Signed by Chief Judge Royce C. Lamberth on April 19, 2011. (lcrcl4) (Entered: 04/19/2011)
266 REPLY to opposition to motion re 225 MOTION to Compel Payment of Expert Karen Albert's Preparation Time filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 04/21/2011)
267 Memorandum in opposition to re 263 MOTION to preclude Simon Banks from filing any further motions in this matter without first obtaining leave of Court Opposition to Motion to Preclude filed by SIMON BANKS. (BANKS, SIMON) (Entered: 04/22/2011)
268 MOTION to Stay re 265 Notice (Other) and decisions on all dispositive motions until Court Rules Upon Applicant's Motion for Intervention and Motion for Declaratory Judgment by SIMON BANKS (BANKS, SIMON) (Entered: 04/25/2011)
269 MOTION for Declaratory Judgment by SIMON BANKS (BANKS, SIMON) (Entered: 04/26/2011)
270 ERRATA by SIMON BANKS 269 MOTION for Declaratory Judgment filed by SIMON BANKS, 268 MOTION to Stay re 265 Notice (Other) and decisions on all dispositive motions until Court Rules Upon Applicant's Motion for Intervention and Motion for Declaratory Judgment filed by SIMON BANKS. (BANKS, SIMON) (Entered: 04/26/2011)
271 MOTION to Strike 247 Notice (Other), Notice (Other) Defendants Notice Regarding Correction In Defendants Response To Plaintiffs Statement Of Material Facts Not In Dispute, Document Number 228−7 by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/27/2011)
272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 by SIMON BANKS (BANKS, SIMON) (Entered: 04/28/2011)
273 REPLY to opposition to motion re 263 MOTION to preclude Simon Banks from filing any further motions in this matter without first obtaining leave of Court filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 05/02/2011)
274 NOTICE OF FILING SUPPLEMENTAL EXHIBITS TO DOC 272 RE DOCUMENT 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit DCCA'S DECISION AFFIRMING DCCA JUDGE GALLAGHER INITIAL INJUNCTION IN IN RE SIMON BANKS, 561 A.2D 158, 1989, IGNORING BANKS' SUPREMACY CLAUSE AND SPERRY V. STATE OF FLA. DEFENSE THAT FED LAWS AUTHORIZING BANKS PRACTICE BEFORE THE EEOC, MSPB, DOL, OPM, OSC, PREEMPT DC CT. APPL RULE 49 ON UNAUTHORIZED PRACTICE OF LAW WHICH REQUIRE A STATE BAR LICENSE FOR BANKS TO PRACTICE BEFORE THE U.S. EEOC, MSPB, DOL, OPM, OSC, # 2 Exhibit BANKS' APPELLATE BRIEF FILED ON NOV. 16, 2005 BUT REJECTED BY DCCA IN RETURN FOR THE BRIEF FILED BY IMPOSED−CONFLICTED APPEALS ATTY CYNTHIA NORDONE, FILED 15 MONTHS AFTER SHE WAS APPOINTED TO FILE BANKS APPEAL BRIEF, WHEN AND WHILE BANKS WAS INCARCERATED FOR 2 YEARS AND 40 DAYS ON 4 MISDEMEANOR COUNTS, AND BRIEF LISTED BUT DID NOT BRIEF 97 ASSIGNMENTS OF ERRORS DEMANDED BY BANKS)(BANKS, SIMON) (Entered: 05/03/2011)
275 NOTICE OF FILING SET 2 OF EXHIBITS IN SUPPORT OF DOCUMENT 272 RE DOCUMENT 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit LIST OF EXHIBITS SHOWING THE TITLES HEARING EXAMINER AND ADMINISTRATIVE JUDGE ARE SYNONYMOUS, # 2 Exhibit NEWS ARTICLE OF NATIONAL ASSOCIATION OF ADMINISTRATIVE LAW JUDGES HONORING BANKS IMMEDIATE SUCCESSOR WITH A SCHOLARSHIP FOR ADMINISTRATIE LAW JUDGES TO THE JUDICIAL CONFERENCE IN RENO, NEVADA)(BANKS, SIMON) (Entered: 05/03/2011)

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05/03/2011
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276 NOTICE OF FILING SET 3 OF EXHIBITS IN SUPPORT OF DOC 272 RE DOC 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit EXHIBIT EXECUTED BY SHIRLEY POWELL IN 1986 WHOM BANKS WON HER CASE BEFORE THE MSPB BUT JUDGE GALLAGHER OF THE DCCA REJECTED BANKS' SYSTEM OF DISCLOSURE OPINING THAT BANKS NEEDED A DC BAR LICENSE TO REPT SHIRLEY POWELL AND OTHERS BEFORE THE MSPB, EEOC, # 2 Exhibit EXCERPT DISCLOSURES OF MARIA JOHNSON FORMER CHAIR OF U.S. MERIT SYSTEMS PROTECTION BOARD ADVERTISING HER EMPLOYMENT WITH THE DC RENTAL ACCOMMODATIONS OFFICE AS AN ALJ WHEN HER TITLE WAS HEARING EXAMINER, AS WELL AS DC GOVT CHANGE OF THE TITLE HEARING EXAMINER VIA DC REGISTER JAN. 20, 1995, # 3 Exhibit DC GOVT CHANGE OF TITLE HEARING EXAMINER TO ADMINISTRATIVE LAW JUDGE FOR DC WORKER'S COMP HEARING EXAMINERS, # 4 Exhibit U.S. JOBS, ADVERTISMENT FOR POSITION OF ALJ NOTING THAT THE FORMER TITLE WAS HEARING EXAMINER)(BANKS, SIMON) (Entered: 05/03/2011)
277 NOTICE OF FILING SET 4 OF EXHIBITS IN SUPPORT OF DOC 272 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit DC ATTORNEY GENERAL ARGUMENT TO U.S. JUDGE JOHNSON THAT HEARING EXAMINER LENNOX SIMON IS AN ADMINISTRATIVE LAW JUDGE, CITING BUTZ V. ECONOMOU, 438 U.S. 478 WHICH PROVIDE THAT HEARING EXAMINERS ARE LIKE FEDERAL JUDGES, # 2 Exhibit POSITION DESCRIPTION OF LENNOX SIMON SHOWING THAT HIS OFFICIAL TITLE WITH THE DC GOVT WAS HEARING EXAMINER AT THE TIME DC ATTY GEN ARGUED HE IS AN ALJ)(BANKS, SIMON) (Entered: 05/03/2011)
278 NOTICE of filing Set 5 of Exhibits to Doc 272 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit Banks, Plaintiff's Corrected Opp to Dismiss & in support of Pet for Writ of Habeas Corpus on issue of futility, and at pages 3−8 points to evidence of the interchangeability of the titles Hearing Examiner and Administrative Law Judge in the District of Columbia, # 2 Exhibit Complaint to Hold DCCA's Attorney Rosana Mason in Contempt for delaying Banks' appeal for 5 years, # 3 Exhibit EXCERPT 1 OF BANKS COMPLAINT AGAINST ERIC HOLDER AND THOMAS ZENO AND OTHER CO−CONSPIRATORS)(BANKS, SIMON) (Entered: 05/03/2011)
279 NOTICE of filing Set 6 of Exhibits to Doc 272, Re Doc 269 Excerpt 2 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit Excerpt 2 of Comp filed with FBI against Eric Holder and Thomas Zeno and other co−conspirators in 1999)(BANKS, SIMON) (Entered: 05/03/2011)
280 NOTICE OF FILING SET 8, EXCERPT 4 OF EXHIBITS TO DOC 272 RE 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit EXCERPT 4 TO COMPLAINT TO FBI AGAINST ERIC HOLDER, THOMAS ZENO AND OTHER CO−CONSPIRATORS, 1999)(BANKS, SIMON) (Entered: 05/03/2011)
281 NOTICE of filing set 9 to doc 272 re 269, excerpt 5 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit Excerpt 5 to Complaint filed with the FBI against Eric Holder, Thomas Zeno and other co−conspirators filed in 1999)(BANKS, SIMON) (Entered: 05/03/2011)
282 NOTICE OF FILING SET 10 TO DOC 272 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit EXCERPT 6 TO COMP FILED WITH FBI AGAINST ERIC HOLDER, THOMAS ZENO, AUSA AND OTHER CO−CONSPIRATORS, FILED IN 1999, # 2 Exhibit DOC DOCUMENT "RELEASE TO DETAINER" INITIATED 6−15−2004 BASED UPON THE SHAM REASON "TIME COMPLETED" WHICH WAS FACILITED BY JUDGE KRAMER'S 6−7−2004 ORDER RELEASING BANKS FROM ALL CHARGES ALTHOUGH BANKS

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WAS SENTENCED TO SERVE 2 YRS ON 4 CONSECUTIVE MISDEMEANOR CONTEMPT CHARGES FOR STATING BANKS REPRESENTED GOVT EMPLOYEES NATIONWIDE AND FOR INDICATING THAT THE TITLES HEARING EXAMINER AND ADMINISTRATIVE LAW JUDGE ARE INTERCHANGEABLE, SYNONYMOUS, A PRETEXT TO DISGUISE RETALIATION FOR PETITIONING GOVT FOR REDRESS, # 3 Exhibit SHAM BENCH WARRANT ISSUED BY JUDGE KRAMER ONE DAY AFTER TRANSFER, # 4 Exhibit JUDGE KRAMER'S ORDER DISMISSING ALL CHARGES A SHAM TO MANIPULATE BANKS TRANSFER TO VA)(BANKS, SIMON) (Entered: 05/03/2011)
283 NOTICE OF FILING SET 11 TO DOC 272 RE DOC 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit Banks Emergency Motion for Release and Correction Sentence pursuant to DC Code Section 2310, local habeas resultin in Banks release after 40 days of overdetention, # 2 Exhibit JUDGE KRAMER'S FAX AMENDING ORDER IN RETALIATION, SUBJECTING BANKS TO A $4000 FINE AND $200 VICTIM FINE WHEN THERE WAS NO EVIDENCE OF ANY VICTIM CONNECTED W THE GOVT COMPT AND WITNESSES, # 3 Exhibit DISCLOSURE EXECUTED BY ANTHONY THOMPSON, WHO DID NOT COMPLAIN, ONLY CLIENT CALLED W−N CHARGING PERIOD, # 4 Exhibit EXECUTED RECEIPT OF CARL MCCALLISTER WHOSE PERJURY BEFORE JUDGE LEVIE WAS COVERED UP AND RECEIPT WITHDRAWN & KEPT BY S.PIERSON, # 5 Exhibit MOTION DEMANDING THAT STUART PIERSON RETURN FILES CONTAINING ALL EXHIBITS AND MCCALLISTER'S PERJURY BEFORE JUDGE LEVIE)(BANKS, SIMON) (Entered: 05/03/2011)
284 NOTICE OF FILING SET 13 OF EXHIBITS TO DOC 272 RE DOC 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Affidavit AFFIDAIT OF BANKS AT #8 REFER TO NOTICE TO DOC WARDEN CORBETT 10 MONTHS BEFORE OVERDETENTION THAT RECORDS OFFICE RELEASE RECORDS NEEDED TO BE CORRECTED, # 2 Exhibit SCATHING DISSENT OF DCCA JUDGES SHOWING NO EVIDENCE TO SUPPORT DCCA'S CONCLUSIONS IN BANKS V. DCRA, 634 A.2D 433 (1993), # 3 Exhibit LETTER OF STUART PIERSON OF DCCA ATTEMPTING TO COLLECT $59,000 AWARDED HIM AND HIS LAW FIRM WHILE DEFENDING BANKS' SUIT THAT PIERSON IS A JUDICIAL EMPLOYEE & SUI JURIS)(BANKS, SIMON) (Entered: 05/03/2011)
285 NOTICE OF FILING SET 15 TO EXHIBITS TO DOC 272 RE DOC 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit COMPL TO U.S. ATTY ROSCOE HOWARD AGAINST THOMAS ZENO, FEB. 2004, # 2 Exhibit COMPLAINT AGAINST DCCA JUDGE GALLAGHER IN 1989 RESULTING IN BANKS REMOVAL OF CASE FROM THE DCCA TO THE U.S. DIST CT DC, BECAUSE JUDGE GALLAGHER IGNORED BANKS AFFIRMATIVE DEFENSE AND ALLOWED CUPL TO HAVE SECRET MEETINGS WITH HIM AGAINST BANKS WHICH WAS ON THE RECORD BUT THE RECORD WAS SUPPRESSED TO THIS DATE FROM BANKS, # 3 Exhibit ORDER OF JUDGE GALLAGHER REFERRING TO BANKS AS A LAWYER THEN DIRECTED BANKS TO WRITE A LEGAL MEMO ON A LAW SCHOOL GRAD'S RIGHT TO USE THE TERM THEN JUDGE GALLAGHER USED THE LEGAL MEMO TO WRITE A DECISION ON WHY HE RESTRICTS THE TERM TO ATTYS)(BANKS, SIMON) (Entered: 05/04/2011)
286 NOTICE OF FILING SET 16 OF EXHIBITS TO DOC 272 RE DOC 269 by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit PHOTOS OF FBI RANSACK OF BANKS 4−LEVEL BUILDING OFFICES ON 3−18−1996 PURSUANT TO THE DIRECTION OF THOMAS ZENO, AUSA, DESIGNATED BY ERIC HOLDER, AFTER BANKS FILED COMPLAINT WITH ERIC HOLDER, FORMER DC SUPERIOR COURT JUDGE AND NEWLY APPOINTED U.S. ATTORNEY FOR DC THAT CHIEF JUDGE ANNICE WAGNER AND THE DCCA WERE MISUSING ITS JUDICIAL POWER TO USURP BANKS FEDERAL RIGHTS TO PRACTICE BEFORE THE U.S. EEOC, U.S. MERIT SYSTEMS

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 29 of 46

05/04/2011 05/04/2011
05/04/2011 05/06/2011

PROTECTION BOARD, U.S. DOL, U.S. OFFICE OF SPECIAL COUNSEL, U.S. OPM WHICH AGENCIES DID NOT REQUIRE A STATE BAR LICENSE AS A CONDITION FOR PRACTICE AND THAT AS A MATTER OF FACT DC CT. APP. RULE 49 ON UNAUTHORIZED PRACTICE OF LAW IS PREEMPTED BY THE SUPREMACY CLAUSE AND SPERRY V. STATE OF FLORIDA. CHIEF DC CT APPEALS JUDGE ANNICE WAGNER NEUTRALIZED THE D.C. U.S. ATTY, THOMAS ZENO, BY APPOINTING HIM TO ENFORCE DC CT APP. RULE 49 AND THE DCCA RULE 49 INJUNCTION (MISDEMEANOR) AGAINST BANKS. SO NO INVESTIGATION OF THE DCCA WAS UNDERTAKEN BY THE DEPT OF JUSTICE PURSUANT TO THE U.S. ATTY DC)(BANKS, SIMON) (Entered: 05/04/2011)
287 NOTICE OF FILING SET 18 OF EXHIBITS TO DOC 272 RE DOC 269 PART 1 OF PARTS ABC OF BANKS PETITION FOR RESOLUTION OF IMPEACHMENT AND FOR AND FOR AN FBI INVESTIGATION AGAINST DCCA, JUDGES LEVIE AND 2 OTHER FEMALE JUDGES OF THE NATIONAL ASSOC OF WOMEN JUDGES, AN ADDITIONAL TRIGGER AND CATALYST FOR REPRISAL AGAINST BANKS FOR DCCA JUDGE NOEL ANKETELL KRAMER, FORMER PRESIDENT OF THE NAT ASSOC OF WOMEN JUDGES, by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (BANKS, SIMON) (Entered: 05/04/2011)
288 NOTICE OF FILING SET 19 OF EXHIBITS TO DOC 272 RE DOC 269 PART B OF PARTS ABC OF BANKS PETITION FOR RESOLUTION OF IMPEACHMENT AGAINST DCCA JUDGES AND DC SUPERIOR COURT JUDGE RICHARD A. LEVIE AND AND 2 FEMALE DC SUPERIOR COURT JUDGES WHOM AIDED STUART PIERSON AND THE DC CORP COUNSEL IMPROPERLY by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit PART B OF PETITION FOR RESOLUTION OF IMPEACHMENT FILED FEB. 22, 1996 AGAINST DC JUDGES AND THEN ACTING DC ATTORNEY GENERAL, GARLAND PINKSTON WHO USED DC GOVT RESOURCES AND ATTORNEYS TO DEFEND STUART PIERSON 500−MEMBER LAW FIRM, DAVIS WRIGHT TREMAINE AGAINST BANKS WHEN BANKS FILED CIVIL COMPLAINT AGAINST STUART PIERSON AND HIS LAW FIRM FOR INTERFERRING WITH BANKS CONTRACTS AND CONTRACTUAL RELATIONS AND USING THE OFFICES AND SEAL OF THE DC COURT OF APPEALS TO DO SO AND AT THE SAME TIMRE RELYING UPON THE JUDICIAL IMMUNITY OF THE COURT BECAUSE STUART PIERSON WAS A VOLUNTEER ATTY. BANKS ALSO REPRESENTED STUART PIERSON'S SECRETARY AGAINST HIM AND HIS LAW FIRM BEFORE THE DC OFFICE OF HUMAN RIGHTS, A TITLE VII 706 EEOC CONTRACT AGENCY)(BANKS, SIMON) (Entered: 05/04/2011)
289 NOTICE OF FILING SET 20 OF DOCS TO 272 RE DOC 269, EXHIBIT C OF EXHIBITS ABC OF BANKS PETITION FOR RESOLUTION OF IMPEACHMENT by SIMON BANKS re 272 MOTION for Declaratory Judgment Supplement to Motion for Declaratory Judgment, Document 269 (Attachments: # 1 Exhibit PART C OF PARTS ABC OF BANKS' PETITION FOR RESOLUTION OF IMPEACHMENT FILED FEB. 22, 1996 AGAINST DCCA JUDGE ANNICE WAGNER, THE DCCA, AND DC SUPERIOR COURT JUDGES RICHARD A. LEVIE, AND 2 OTHER FEMALE JUDGES OF THE DC SUPERIOR COURT WHOM ARE MEMBERS OF THE NATIONAL ASSOCIATION OF WOMEN JUDGES WHICH JUDGE NOLE ANKETELL KRAMER WAS PRESIDENT OF AND VOWED WITH FORMER CHIEF JDUGE ANNICE WAGNER TO GET BANKS FOR BANKS' PETITIONING THE CONGRESS FOR REDRESS, RESULTING IN BANKS INCARCERATION WITHOUT JURISDICTION AND THE BOYCOTT OF THE DCCA OF ALL APPEALS BECAUSE JUDGE WAGNER SERVED ON ALL PER CURIAM PANELS SINCE 1996 REGARDING BANKS, AND USED HER POSITION TO STEER THE OUTCOME)(BANKS, SIMON) (Entered: 05/04/2011)
290 MEMORANDUM AND ORDER granting nunc pro tunc 260 defendant's Motion for Extension of Time to Reply to Motion to Compel Payment of Expert Karen Albert's Preparation Time; granting in part and reserving judgment in part on 225 defendant's Motion to Compel Payment of Expert Karen Albert's Preparation Time; denying 249 Simon Banks's Applicant 2nd Motion to Intervene and to Modify Protective Order;

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 30 of 46

05/13/2011
05/14/2011 05/16/2011
05/19/2011 05/23/2011
05/26/2011 05/26/2011 05/26/2011 05/27/2011
05/31/2011 05/31/2011 06/01/2011

granting 263 defendant's Motion to Preclude Further Motions by Applicant Banks Absent Prior Leave of Court; denying 268 Simon Banks's motion for leave to file his Motion to Stay Decision(s) on All Dispositive Motions Until After the Court Issues Decision Upon Applicant's Application for Intervention and Motion for Declaratory Judgment; denying 269 and 272 Simon Banks's motion for leave to file his Motion for Declaratory Relief. Signed by Chief Judge Royce C. Lamberth on May 6, 2011. (lcrcl4) (Entered: 05/06/2011)
291 RESPONSE TO ORDER OF THE COURT re 290 Order on Motion to Compel, Order on Motion to Intervene, Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Miscellaneous Relief, Order on Motion to Stay, Order on Motion for Declaratory Judgment,,,,,,,,,,,,,,,,,,,,,, filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 05/13/2011)
292 MOTION to Strike 244 Notice (Other) Defendants Notice Regarding Filing Analysis Of Late Releases, Document Number 244 by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 05/14/2011)
293 MOTION for Extension of Time to File Response/Reply as to 271 MOTION to Strike 247 Notice (Other), Notice (Other) Defendants Notice Regarding Correction In Defendants Response To Plaintiffs Statement Of Material Facts Not In Dispute, Document Number 228−7 MOTION to Strike 247 Notice (Other), Notice (Other) Defendants Notice Regarding Correction In Defendants Response To Plaintiffs Statement Of Material Facts Not In Dispute, Document Number 228−7 by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 05/16/2011)
Set/Reset Hearings: Motion Hearing set for 6/1/2011 at 02:30 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje, ) (Entered: 05/19/2011)
294 Memorandum in opposition to re 271 MOTION to Strike 247 Notice (Other), Notice (Other) Defendants Notice Regarding Correction In Defendants Response To Plaintiffs Statement Of Material Facts Not In Dispute, Document Number 228−7 MOTION to Strike 247 Notice (Other), Notice (Other) Defendants Notice Regarding Correction In Defendants Response To Plaintiffs Statement Of Material Facts Not In Dispute, Document Number 228−7 filed by DISTRICT OF COLUMBIA. (Graham, Grace) (Entered: 05/23/2011)
295 REPLY to opposition to motion re 292 MOTION to Strike 244 Notice (Other) Defendants Notice Regarding Filing Analysis Of Late Releases, Document Number 244 filed by CARL A. BARNES. (Claiborne, William) (Entered: 05/26/2011)
296 RESPONSE re 265 Notice (Other) of Plaintiffs' Filing of New Evidence filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 05/26/2011)
297 NOTICE of Filing Under Seal of Video of Strip Searches by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 05/26/2011)
298 NOTICE OF APPEAL as to 290 Order on Motion to Compel, Order on Motion to Intervene, Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Miscellaneous Relief, Order on Motion to Stay, Order on Motion for Declaratory Judgment,,,,,,,,,,,,,,,,,,,,,, by SIMON BANKS. Fee Status: No Fee Paid. Parties have been notified. (BANKS, SIMON) (Entered: 05/27/2011)
299 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 298 Notice of Appeal. (rdj) (Entered: 05/31/2011)
300 Memorandum in opposition to re 292 MOTION to Strike 244 Notice (Other) Defendants Notice Regarding Filing Analysis Of Late Releases, Document Number 244 filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 05/31/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Motion Hearing held on 6/1/2011. Motions heard and held in abeyance. (Court Reporter Theresa Sorensen.) (rje) (Entered: 06/01/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 31 of 46

06/02/2011 06/09/2011 06/09/2011
06/09/2011 06/15/2011 06/17/2011 06/21/2011 06/24/2011 06/24/2011
06/27/2011 08/01/2011 08/02/2011 08/03/2011 08/05/2011
08/09/2011

USCA Case Number 11−7047 for 298 Notice of Appeal, filed by SIMON BANKS. (rdj) (Entered: 06/02/2011)
301 NOTICE of Filing of Additional Evidence by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Decl of Mark Sibert, # 2 Exhibit Decl of Kathy Souverain, # 3 Exhibit Decl of Fred Thompson, # 4 Exhibit Decl of Reena Chakraborty)(Saindon, Andrew) (Entered: 06/09/2011)
302 NOTICE of Filing Under Seal of Discrepancy Reports by DISTRICT OF COLUMBIA (Saindon, Andrew) (Additional attachment(s) added on 6/10/2011: # 1 DOC discrepancy reports from 2007, # 2 DOC discrepancy reports from 2008, # 3 DOC discrepancy reports from 2009, # 4 DOC discrepancy reports from 2010, # 5 DOC discrepancy reports from 2011, # 6 Barnes discrepancy report for May 2011) (jf, ). (Entered: 06/09/2011)
303 MOTION for Leave to Appeal in forma pauperis by SIMON BANKS (BANKS, SIMON) (Entered: 06/09/2011)
304 ORDER denying 303 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Royce C. Lamberth on 6/14/11. (rje, ) (Entered: 06/15/2011)
305 Supplemental Record on Appeal transmitted to US Court of Appeals re 298 Notice of Appeal ;USCA Case Number 11−7047. (rdj) (Entered: 06/17/2011)
306 RESPONSE to the District's Discrepancy Reports re 301 filed by CARL A. BARNES. (Claiborne, William) Modified on 6/22/2011 to add linkage (rdj). (Entered: 06/21/2011)
307 MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on June 24, 2011. (lcrcl4) (Entered: 06/24/2011)
308 ORDER granting in part and denying in part defendant's Motion 211 for Summary Judgment; granting in part and denying in part plaintiffs' Motion 217 for Summary Judgment; denying plaintiffs' Motion 271 to Strike; denying plaintiffs' 292 Motion to Strike; and directing the Clerk of the Court to set a status conference. Signed by Chief Judge Royce C. Lamberth on June 24, 2011. (lcrcl4) (Entered: 06/24/2011)
Set/Reset Hearings: Status Conference set for 8/2/2011 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje) (Entered: 06/27/2011)
309 ORDER granting defendant's Motion 225 to Compel Payment of Expert Karen Albert's Preparation Time. Signed by Chief Judge Royce C. Lamberth on August 1, 2011. (lcrcl4) (Entered: 08/01/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Status Conference held on 8/2/2011. Case will be referred for mediation before Magistrate Judge Facciola. (Court Reporter Theresa Sorensen.) (rje) (Entered: 08/03/2011)
312 CASE REFERRED to Magistrate Judge John M. Facciola for mediation. (kb) (Entered: 08/10/2011)
310 MOTION for Leave to File Errata to Applicant's Response to the Court's Inquiry (8−2−2011 Status Hearing) Why the Applicant needed discovery when the Court granted summary judgment to the Class Members in the Barnes Class Action Case by SIMON BANKS (Attachments: # 1 Exhibit Notice of Filing Errata to Response of Applicant to Inquiry of the Court Why the Applicant need discovery when the Court granted the Barnes Class Members Summary Judgment, # 2 Errata Applicant's Errata to Applicant's Response given to the Court on 8−2−2011, in response to the Court's Inquiry Why the Applicant needed discovery although the Court granted summary judgment to the Class Members In the Barnes Case, # 3 Errata Plaintiff Simon Banks Errata to Plaintiff's Response (8−2−2011 Status Hearing in Banks v. York, 05−1514 RCL) to the Court's Question Why the Plaintiff needed discovery when the Court granted Summary Judgment to the Class Members in the Barnes Class Action Case)(BANKS, SIMON) (Entered: 08/05/2011)
311 ORDER STAYING CASE for sixty (60) days. FURTHER ORDERED REFERRING CASE to a Magistrate Judge John M. Facciola for mediation. FURTHER ORDERED that a Status Conference shall be set for 8/3/2011 at 09:30 AM in Courtroom 22A before Chief Judge Royce C. Lamberth.. Signed by Chief Judge Royce C. Lamberth on

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 32 of 46

08/11/2011 08/16/2011
08/17/2011 08/26/2011 08/26/2011 08/30/2011 09/01/2011 09/21/2011 09/30/2011 10/03/2011 10/17/2011 10/18/2011 10/18/2011 10/25/2011 10/25/2011 10/26/2011 11/01/2011
11/09/2011

8/3/11. (rje, ) (Entered: 08/09/2011)
313 ORDER re referral to Judge Facciola for settlement. Signed by Magistrate Judge John M. Facciola on 8/11/11. (SP, ) (Entered: 08/11/2011)
Set/Reset Hearings: Settlement Conference set for 8/31/2011 at 03:30 PM in Chambers before Magistrate Judge John M. Facciola. Settlement Conference set for 9/1/2011 at 10:00 AM in Chambers before Magistrate Judge John M. Facciola. (SP, ) (Entered: 08/16/2011)
Set/Reset Hearings: Settlement Conference set for 9/21/2011 at 03:30 PM in Chambers before Magistrate Judge John M. Facciola. (SP, ) (Entered: 08/17/2011)
NOTICE OF CORRECTED DOCKET ENTRY: ORDER STAYING CASE re 311 Set Status Hearing date was entered in error the correct date will be posted in the Set/Reset Date dated. (rje, ) (Entered: 08/26/2011)
Set/Reset Hearings: Status Conference set for 10/3/2011 at 09:30 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje, ) (Entered: 08/26/2011)
314 ORDER denying Simon Banks' Motion 310 for Leave to File Applicant's Errata. Signed by Chief Judge Royce C. Lamberth on August 30, 2011. (lcrcl4) (Entered: 08/30/2011)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Settlement Conference held on 9/1/2011. (SP, ) (Entered: 09/01/2011)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Telephone status on settlement conference held on 9/21/2011. (SP, ) (Entered: 09/21/2011)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Settlement Conference held on 9/29/2011. (SP, ) (Entered: 09/30/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Status Conference held on 10/3/2011. (Court Reporter Annie Shaw.) (rje, ) (Entered: 10/03/2011)
315 Consent MOTION for Extension of Time to File the Parties Joint Proposal for Further Proceedings by DISTRICT OF COLUMBIA (Graham, Grace) (Entered: 10/17/2011)
316 ORDER granting 315 Motion for Extension of Time to File the Parties Joint Proposal for Further Proceedings. Signed by Chief Judge Royce C. Lamberth on 10/17/11. (rje, ) (Entered: 10/18/2011)
Set/Reset Deadlines: Joint Proposal for Further Proceedings due by 10/25/2011. (rje, ) (Entered: 10/18/2011)
317 NOTICE of Filing of Proposal for Further Proceedings by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 10/25/2011)
318 MOTION for Extension of Time to file trial by midnight at the place of filing by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/25/2011)
319 NOTICE Plaintiffs' Proposed Trial Plan by CARL A. BARNES (Claiborne, William) (Filed nunc pro tunc to 10/25/2011, pursuant to order filed on 11/9/2011) (Entered: 10/26/2011)
320 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, by CARL A. BARNES (Attachments: # 1 Exhibit Souverain affidavit, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 11/01/2011)
MINUTE ORDER granting nunc pro tunc 318 plaintiffs' Motion for Extension of Time. Signed by Chief Judge Royce C. Lamberth on November 9, 2011. (lcrcl4) (Entered: 11/09/2011)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 33 of 46

11/10/2011 11/16/2011
11/28/2011 11/28/2011
11/29/2011 11/29/2011
12/07/2011 12/07/2011 12/07/2011 12/14/2011 01/20/2012
03/02/2012 03/19/2012 03/22/2012

321 MOTION for Extension of Time to In Which To File Objections To District Of Columbias Proposed Trial Plan And Amendment To Plaintiffs Proposed Trial Plan by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 11/10/2011)
322 Memorandum in opposition to re 320 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike, filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) Modified on 11/17/2011 (dr). (Entered: 11/16/2011)
323 Memorandum in opposition to re 321 MOTION for Extension of Time to In Which To File Objections To District Of Columbias Proposed Trial Plan And Amendment To Plaintiffs Proposed Trial Plan filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 11/28/2011)
324 REPLY to opposition to motion re 320 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, filed by CARL A. BARNES. (Claiborne, William) (Entered: 11/28/2011)
325 NOTICE of Appearance by Keith David Parsons on behalf of DISTRICT OF COLUMBIA (Parsons, Keith) (Entered: 11/29/2011)
326 RESPONSE (Objections) re 319 NOTICE of Proposed Trial Plan Plaintiffs objections to District of Columbias proposed trial plan and amendments to plaintiffs proposed trial plan by CARL A. BARNES (Attachments: # 1 Exhibit Augustin order certifying damages class)(Claiborne, William) Modified event title and link on 11/30/2011 (znmw, ). (Entered: 11/29/2011)
MINUTE ORDER granting nunc pro tunc 321 plaintiffs' Motion for Extension of Time in which to File Objections to District of Columbia's Proposed Trial Plan and Amendment to Plaintiffs' Proposed Trial Plan. Signed by Chief Judge Royce C. Lamberth on December 7, 2011. (lcrcl4) (Entered: 12/07/2011)
327 ORDER denying 320 plaintiffs' Motion for Reconsideration. Signed by Chief Judge Royce C. Lamberth on December 7, 2011. (lcrcl4) (Entered: 12/07/2011)
328 MEMORANDUM AND ORDER (TRIAL PLAN). Signed by Chief Judge Royce C. Lamberth on December 7, 2011. (lcrcl4) (Entered: 12/07/2011)
Set/Reset Deadlines: Limited Discovery due by 4/6/2012. (rje, ) (Entered: 12/14/2011)
330 MANDATE of USCA (certified copy) as to 298 Notice of Appeal, filed by SIMON BANKS ; ORDERED that the order to show cause be discharged. FURTHER ORDERED that the district court's May 6, 2011 order denying appellant's motion for intervention as of right be summarily affirmed. FURTHER ORDERED that the appeal be dismissed for lack of jurisdiction as to the district court's May 6, 2011 order denying appellant permission to intervene. FURTHER ORDERED that the motion to recuse be dismissed as moot. USCA Case Number 11−7047. (md, ) (Entered: 01/24/2012)
331 MOTION to Compel Discovery Responses by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Parsons, Keith) (Entered: 03/02/2012)
332 Memorandum in opposition to re 331 MOTION to Compel Discovery Responses filed by CARL A. BARNES. (Attachments: # 1 Exhibit Dr Kriegler's update to expert report, # 2 Exhibit Day summary, # 3 Exhibit defendant's interrogatory responses)(Claiborne, William) (Entered: 03/19/2012)
333 Second MOTION to Compel Responses to DC's Second Set of Interrogatories by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit E−mail of Mar. 12, # 2 Exhibit Proffer of Mar. 19, # 3 Text of Proposed Order)(Saindon, Andrew) (Entered: 03/22/2012)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 34 of 46

03/28/2012 03/30/2012 04/03/2012
04/06/2012 04/06/2012 04/12/2012 04/12/2012 04/16/2012 04/17/2012 04/23/2012
04/23/2012 04/23/2012 04/25/2012 04/27/2012
04/30/2012 05/01/2012
05/07/2012

334 REPLY to opposition to motion re 331 MOTION to Compel Discovery Responses filed by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 03/28/2012)
335 MOTION for Protective Order by CARL A. BARNES (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Text of Proposed Order)(Claiborne, William) (Entered: 03/30/2012)
336 MEMORANDUM AND ORDER. Defendant's Motion 331 to Compel is GRANTED IN PART AND DENIED IN PART; defendant's Second Motion 333 to Compel is DENIED; and plaintiffs' Motion 335 for a Protective Order is GRANTED IN PART AND DENIED IN PART. Signed by Chief Judge Royce C. Lamberth on April 3, 2012. (lcrcl4) (Entered: 04/03/2012)
337 MOTION for Extension of Time to Complete Discovery by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Parsons, Keith) (Entered: 04/06/2012)
338 MOTION for Extension of Time to Complete Discovery by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/06/2012)
339 MOTION for Extension of Time to Complete Discovery of defendants fourth set of interrogatories and document production requests by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/12/2012)
340 Memorandum in opposition to re 338 MOTION for Extension of Time to Complete Discovery filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Parsons, Keith) (Entered: 04/12/2012)
341 MOTION to Compel responses to plaintiffs 2−10−12 liability interrogatories and document production requests to defendant by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/16/2012)
342 REPLY to opposition to motion re 338 MOTION for Extension of Time to Complete Discovery filed by CARL A. BARNES. (Claiborne, William) (Entered: 04/17/2012)
MINUTE ORDER granting 339 plaintiffs' Motion for an Extension. Plaintiffs shall have until April 25, 2012 to respond to defendant's fourth set of interrogatories and document production requests. Signed by Chief Judge Royce C. Lamberth on April 23, 2012. (lcrcl4) (Entered: 04/23/2012)
Set/Reset Deadlines: Plaintiffs' Response to fourth set of interrogatories and document production requests due by 4/25/2012. (rje) (Entered: 04/23/2012)
343 MOTION for Extension of Time to Complete Discovery nunc pro tunc till June 11, 2012 by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/23/2012)
344 RESPONSE re 343 MOTION for Extension of Time to Complete Discovery nunc pro tunc till June 11, 2012 filed by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 04/25/2012)
345 ORDER denying as moot 337 defendant's Motion for Extension of Time ; denying as moot 338 plaintiffs' Motion for an Extension of Discovery Deadlines; granting 343 plaintiffs' Motion for a Nunc Pro Tunc Extension of All Discovery Deadlines Until Monday, June 11, 2012. Signed by Chief Judge Royce C. Lamberth on April 27, 2012. (lcrcl4) (Entered: 04/27/2012)
346 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA (Attachments: # 1 Supplement Florence v. Board of Chosen Freeholders)(Parsons, Keith) (Entered: 04/30/2012)
347 Memorandum in opposition to re 341 MOTION to Compel responses to plaintiffs 2−10−12 liability interrogatories and document production requests to defendant filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 05/01/2012)
348 REPLY to opposition to motion re 341 MOTION to Compel responses to plaintiffs 2−10−12 liability interrogatories and document production requests to defendant filed by CARL A. BARNES. (Claiborne, William) (Entered: 05/07/2012)

Case: 1:06-cv-315 As of: 02/17/2016 11:37 PM EST 35 of 46

05/14/2012 05/21/2012
05/22/2012 05/22/2012 05/23/2012 05/23/2012 06/08/2012 06/11/2012 06/11/2012 06/11/2012 06/12/2012 06/12/2012
06/13/2012 06/14/2012 06/14/2012

349 MOTION for Leave to File Answer to Complaint by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Answer to Third Amended Complaint, # 2 Text of Proposed Order)(Parsons, Keith) (Entered: 05/14/2012)
350 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Barrett S.Litt, :Firm− Litt, Estuar & Kitson, LLP, :Address− 1055 Wilshire Blvd, Ste 1880, Los Angeles, CA 90017. Phone No. − 214−386−3114. Fax No. − 213−380−4585 by CARL A. BARNES (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 05/21/2012)
MINUTE ORDER granting 350 Motion for Leave to Appear Pro Hac Vice for Barrett Litt and Paul Estuar.Signed by Chief Judge Royce C. Lamberth on May 21, 2012. (lcrcl4) (Entered: 05/22/2012)
351 MOTION to Compel or Preclude Plaintiffs from using certain evidence by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Defs 4th Set of Interrogs, # 2 Exhibit Pls' partial response, # 3 Exhibit E−mail exchange, # 4 Text of Proposed Order)(Saindon, Andrew) (Entered: 05/22/2012)
352 NOTICE of Appearance by Paul J. Estuar on behalf of CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Estuar, Paul) (Entered: 05/23/2012)
353 NOTICE of Appearance by Barrett S. Litt on behalf of All Plaintiffs (Litt, Barrett) (Entered: 05/23/2012)
354 Memorandum in opposition to re 351 MOTION to Compel or Preclude Plaintiffs from using certain evidence filed by CARL A. BARNES. (Attachments: # 1 Exhibit Jones rog responses, # 2 Exhibit Jamison affidavit, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 06/08/2012)
355 MOTION for Extension of Time to produce work papers by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 06/11/2012)
356 MOTION to Compel production of Release Discrepancy Database by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 06/11/2012)
357 NOTICE filing under seal exhibits in support of Motion to Compel Release Discrepancy Database by CARL A. BARNES re 356 MOTION to Compel production of Release Discrepancy Database (Claiborne, William) (Entered: 06/11/2012)
MINUTE ORDER granting 355 Motion for Extension of Time to produce plaintiffs' experts' reports. Plaintiffs are ordered to produce the reports and all related discoverable material no later than 12:00 AM on Thursday June 14, 2012. Signed by Chief Judge Royce C. Lamberth on June 12, 2012. (lcrcl4) (Entered: 06/12/2012)
358 MEMORANDUM AND ORDER granting in part and denying in part 341 plaintiffs' Motion to Compel. Defendant must provide plaintiffs, within 15 days of this Order, a narrative response with a summary of the expected testimony of witnesses Jeanette Myrick, Thomas Hoey, Joseph Pettiford, Fred Thompson, Steve Fezuk, Reena Chakraborty, Orlando Harper, Karen Albert, Sean Day, and Brian Kriegler. However, defendant does not have to identify each document defendant intends to introduce during the liability phase of trial. Signed by Chief Judge Royce C. Lamberth on June 12, 2012.(lcrcl4) Modified on 8/1/2012 (rje, ). (Entered: 06/12/2012)
359 REPLY to opposition to motion re 351 MOTION to Compel or Preclude Plaintiffs from using certain evidence filed by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 06/13/2012)
Set/Reset Deadlines: Plaintiffs' Rule 26b4 due by 6/12/2012. (rje ) (Entered: 06/14/2012)
360 SEALED DOCUMENT filed by CARL A. BARNES. re 357 Notice (This document is SEALED and only available to authorized persons.)(Response to 8th Doc Request for PRoduction of Document) (Attachments: # 1 Defendant responses to document requests served in deposition Notice, # 2 Supplemental Report, # 3 THIRD SUPPLEMENTAL EXPERT REPORT, # 4 ERRATA TO SECOND SUPPLEMENTAL EXPERT REPORT)(zrdj) (Entered: 06/18/2012)

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06/14/2012 06/25/2012 06/25/2012 06/28/2012 06/29/2012 07/02/2012 07/07/2012 07/11/2012 07/11/2012 07/12/2012
07/17/2012
07/21/2012 07/24/2012 07/24/2012

361 SEALED LARGE ADDITIONAL ATTACHMENT(S)−− Release Discrepancy Data by CARL A. BARNES 357 Notice. (This document is SEALED and only available to authorized persons.) (zrdj) (Entered: 06/18/2012)
362 MOTION to Compel Plaintiffs Non−Consent Amended and Restated Motion to Compel Production of the Release Discrepancy Database by CARL A. BARNES (Attachments: # 1 Exhibit exhibit list, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 06/25/2012)
363 NOTICE of filing under seal of the exhibits in support of Plaintiffs Non−Consent Amended and Restated Motion to Compel Production of the Release Discrepancy Database [Document # 362] by CARL A. BARNES re 362 MOTION to Compel Plaintiffs Non−Consent Amended and Restated Motion to Compel Production of the Release Discrepancy Database (Claiborne, William) (Entered: 06/25/2012)
364 NOTICE by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 06/28/2012)
365 MOTION to Strike 360 Sealed Document, , MOTION for Extension of Time to Complete Discovery , MOTION for leave to designate rebuttal experts by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Saindon, Andrew) (Entered: 06/29/2012)
366 SEALED Exhibits filed by CARL A. BARNES. re 363 Notice. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2000, # 2 Exhibit 2001, # 3 Exhibit App 1 page 1, # 4 Exhibit 2003, # 5 Exhibit 2004, # 6 Exhibit 2005, # 7 Exhibit 2006, # 8 Exhibit 2007, # 9 Exhibit 2008, # 10 Exhibit 2009)(zrdj) (Entered: 07/02/2012)
367 MOTION for Extension of Time to File Response/Reply as to 365 MOTION to Strike 360 Sealed Document, MOTION for Extension of Time to Complete Discovery MOTION for leave to designate rebuttal experts by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/07/2012)
368 MEMORANDUM AND ORDER granting 349 Motion for Leave, nunc pro tunc, to file an Answer to the plaintiffs' Third Amended Complaint, and it is FURTHER ORDERED, that the Answer of the defendant to the Third Amended Complaint shall be considered filed as of the date of this Order. Signed by Chief Judge Royce C. Lamberth on July 11, 2012. (lcrcl4) (Entered: 07/11/2012)
372 ANSWER to 329 Amended Complaint by DISTRICT OF COLUMBIA. Related document: 329 Amended Complaint filed by CARL A. BARNES.(rdj) (Entered: 07/24/2012)
369 Memorandum in opposition to re 362 MOTION to Compel Plaintiffs Non−Consent Amended and Restated Motion to Compel Production of the Release Discrepancy Database filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit DC's response to plaintiffs' 7th RPD, # 2 Exhibit DC's 2nd response to plaintiffs' 4th RPD, # 3 Exhibit Fezuk Declaration, # 4 Exhibit Chakraborty Declaration, # 5 Exhibit Gazlay depo excerpts, # 6 Text of Proposed Order)(Saindon, Andrew) (Entered: 07/12/2012)
370 Memorandum in opposition re 367 MOTION for Extension of Time to File Response/Reply as to 365 MOTION to Strike 360 Sealed Document, MOTION for Extension of Time to Complete Discovery MOTION for leave to designate rebuttal experts filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Parsons, Keith) Modified text at the request of counsel on 7/17/2012 (td, ). (Entered: 07/17/2012)
371 Consent MOTION for Extension of Time to file reply by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/21/2012)
MINUTE ORDER granting 371 Motion for Extension of Time to file a Reply to the District's Opposition to plaintiff's Non−Consent Amended and Restated Motion 362 to Compel Production of the Release of Discrepency Database. Plaintiff's Reply is due on or before July 25, 2012. Signed by Chief Judge Royce C. Lamberth on July 24, 2012. (lcrcl4) (Entered: 07/24/2012)
Set/Reset Deadlines: Plaintiff's Reply due by 7/25/2012. (rje) (Entered: 07/24/2012)

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07/25/2012 07/27/2012
08/01/2012 08/02/2012 08/03/2012 08/06/2012
08/14/2012 08/14/2012 08/15/2012 08/20/2012 08/30/2012 09/04/2012 09/05/2012 09/05/2012
09/05/2012

373 REPLY to opposition to motion re 362 MOTION to Compel Plaintiffs Non−Consent Amended and Restated Motion to Compel Production of the Release Discrepancy Database filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/25/2012)
374 REPLY to opposition to motion re 367 MOTION for Extension of Time to File Response/Reply as to 365 MOTION to Strike 360 Sealed Document, MOTION for Extension of Time to Complete Discovery MOTION for leave to designate rebuttal experts filed by CARL A. BARNES. (Attachments: # 1 Text of Proposed Order Krigler affidavit)(Claiborne, William) (Entered: 07/27/2012)
375 Second MOTION for Extension of Time to oppose District's motion to strike by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/01/2012)
376 MOTION for Leave to File Surreply by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit proposed Surreply)(Saindon, Andrew) (Entered: 08/02/2012)
377 Memorandum in opposition to re 375 Second MOTION for Extension of Time to oppose District's motion to strike filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Parsons, Keith) (Entered: 08/03/2012)
378 Memorandum in opposition re 365 MOTION to Strike 360 Sealed Document, MOTION for Extension of Time to Complete Discovery MOTION for leave to designate rebuttal experts filed by CARL A. BARNES. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Claiborne, William) Modified on 8/7/2012 to correct event(rdj). (Entered: 08/06/2012)
379 REPLY to opposition to motion re 375 Second MOTION for Extension of Time to oppose District's motion to strike filed by CARL A. BARNES. (Claiborne, William) (Entered: 08/14/2012)
380 Consent MOTION for Extension of Time to File Response/Reply to opposition to plaintiffs' second motion for extension of time to file opposition to motion to strike by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/14/2012)
381 REPLY to opposition to motion re 365 MOTION to Strike 360 Sealed Document, MOTION for Extension of Time to Complete Discovery MOTION for leave to designate rebuttal experts filed by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 08/15/2012)
382 Memorandum in opposition to re 376 MOTION for Leave to File Surreply filed by CARL A. BARNES. (Attachments: # 1 Exhibit email thread, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 08/20/2012)
383 REPLY to opposition to motion re 376 MOTION for Leave to File Surreply filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 08/30/2012)
ORDER terminating 356 Motion to Compel. Plaintiffs' 6/11/12 Motion to Compel 356 has been superseded by plaintiffs' 6/25/12 Motion to Compel 362 . Signed by Chief Judge Royce C. Lamberth on 09/04/2012. (lcrcl4) (Entered: 09/04/2012)
384 ORDER granting 380 Consent Motion for Extension of Time Nunc Pro Tunc to File Response/Reply 379 . Signed by Chief Judge Royce C. Lamberth on 09/05/2012. (lcrcl4) (Entered: 09/05/2012)
385 ORDER granting nunc pro tunc 367 Motion for Extension of Time to File Response/Reply; granting nunc pro tunc 375 Second Motion for Extension of Time to Oppose. Plaintiffs' response 378 and defendant's reply 381 are deemed timely and will be considered by the Court. Signed by Chief Judge Royce C. Lamberth on 09/05/2012. (lcrcl4) (Entered: 09/05/2012)
386 MEMORANDUM AND ORDER denying 376 Motion for Leave to File Surreply. Signed by Chief Judge Royce C. Lamberth on 06/25/2012. (lcrcl4) (Entered: 09/05/2012)

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09/07/2012 09/07/2012 09/11/2012 09/19/2012
09/19/2012 09/24/2012
09/24/2012 09/27/2012 09/27/2012 09/28/2012 09/28/2012 10/04/2012
10/31/2012 12/04/2012

387 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, by CARL A. BARNES (Attachments: # 1 Exhibit City council hearing, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 09/07/2012)
388 NOTICE filing exhibits to Motion for reconsideration (Dct # 387) under seal by CARL A. BARNES re 387 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, (Claiborne, William) (Entered: 09/07/2012)
389 SEALED Exhibits filed by CARL A. BARNES. re 387 MOTION for Reconsideration. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 09/12/2012)
390 ORDER granting in part and denying in part 351 defendant's Motion to Compel; denying 351 defendant's Motion to Preclude Plaintiffs from Using Certain Evidence; denying 365 defendant's Motion to Strike; denying 365 defendant's Motion for Extension of Time to Complete Discovery and Leave to Designate Rebuttal Expert(s); re−opening discovery for 28 days from this date to allow for the depositions of plaintiffs' expert witnesses Dr. Kriegler and Mr. Day; granting in part, denying in part, and denying in part without prejudice 362 plaintiffs' Motion to Compel. Signed by Chief Judge Royce C. Lamberth on 09/19/2012. (lcrcl4) (Entered: 09/19/2012)
391 MEMORANDUM OPINION explaining the Court's reasoning as to its disposition of 351 , 365 , and 362 . Signed by Chief Judge Royce C. Lamberth on 09/19/2012. (lcrcl4) (Entered: 09/19/2012)
392 NOTICE of Filing in Compliance by DISTRICT OF COLUMBIA re 390 Order on Motion to Compel,, Order on Motion to Strike, Order on Motion for Extension of Time to Complete Discovery, Order on Motion for Miscellaneous Relief,,,,,,,,,, (Attachments: # 1 Exhibit Declaration of Steve Fezuk 9 24 12)(Saindon, Andrew) (Entered: 09/24/2012)
393 Memorandum in opposition to re 387 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 09/24/2012)
394 MOTION to Clarify the Record by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Parsons, Keith) (Entered: 09/27/2012)
395 NOTICE intent to file responsive pleading by CARL A. BARNES re 394 MOTION to Clarifythe Record (Attachments: # 1 Exhibit email exchange)(Claiborne, William) (Entered: 09/27/2012)
396 ORDER granting in part 394 Motion to Clarify. Signed by Chief Judge Royce C. Lamberth on 09/28/2012. (lcrcl4) (Entered: 09/28/2012)
397 MEMORANDUM OPINION (MODIFIED). Per the Court's Order in 396 , the Court issues this Modified Memorandum Opinion to replace the Court's previous Memorandum Opinion filed at 391 . Signed by Chief Judge Royce C. Lamberth on 09/28/2012. (lcrcl4) (Entered: 09/28/2012)
398 REPLY to opposition to motion re 387 MOTION for Reconsideration re 307 Memorandum & Opinion, 308 Order on Motion for Summary Judgment,, Order on Motion to Strike,,,,, filed by CARL A. BARNES. (Attachments: # 1 Exhibit Mr Day report, # 2 Exhibit exhibit, # 3 Exhibit transcript)(Claiborne, William) (Entered: 10/04/2012)
399 MEMORANDUM OPINION AND ORDER denying 387 Motion for Reconsideration. Signed by Chief Judge Royce C. Lamberth on 10/31/2012. (lcrcl4) (Entered: 10/31/2012)
400 MOTION to Stay Decertification Order by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) (Entered: 12/04/2012)

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12/05/2012 12/11/2012 12/12/2012 12/15/2012 12/17/2012 12/18/2012
12/18/2012
12/21/2012 12/21/2012
12/28/2012 01/02/2013
01/10/2013 01/11/2013 01/11/2013 01/18/2013

NOTICE of Hearing:Status Conference set for 12/18/2012 at 10:15 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje, ) (Entered: 12/05/2012)
401 NOTICE of Proposed Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Parsons, Keith) (Entered: 12/11/2012)
402 STATUS REPORT Plaintiffs' Status Conference Statement by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 12/12/2012)
403 MOTION for Leave to Appear Telephonically by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) (Entered: 12/15/2012)
MINUTE ORDER granting 403 Motion for Leave to Appear Telephonically. Signed by Chief Judge Royce C. Lamberth on 12/17/2012. (lcrcl4) (Entered: 12/17/2012)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Status Conference held on 12/18/2012. Joint Pretrial Statement due by 1/25/2013. Pretrial Conference set for 1/31/2013 at 02:00 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. Jury Trial set for 3/1/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Theresa Sorensen.) (rje) (Entered: 12/18/2012)
404 SCHEDULING ORDER: Pre−Trial Motions, Including Motions in limine, due by 1/11/2013. Responses due by 1/18/2013. Replies due by 1/25/2013. Joint Pretrial Statement due by 1/25/2013. Final Pretrial Conference set for 1/31/2013 02:00 PM before Chief Judge Royce C. Lamberth. Bench Briefs due by 2/21/2013. Jury Trial, including Jury Selection and Voir Dire, set to begin 3/1/2013 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. Signed by Chief Judge Royce C. Lamberth on 12/18/2012. (lcrcl4) (Entered: 12/18/2012)
405 Memorandum in opposition to re 400 MOTION to Stay Decertification Order filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Gardner v Western Beef court approved Notice)(Saindon, Andrew) (Entered: 12/21/2012)
Set/Reset Deadlines/Hearings: Pre−trial Motions due by 1/11/2013. Responses due by 1/18/2013. Replies due by 1/25/2013. Joint Pretrial Statement due by 1/25/2013. Final Pretrial Conference set for 1/31/2013 at 02:00 PM before Chief Judge Royce C. Lamberth.Jury Trial set for 3/1/2013 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje) (Entered: 12/21/2012)
406 REPLY to opposition to motion re 400 MOTION to Stay Decertification Order filed by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 12/28/2012)
407 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Stacey Brown, :Firm− Litt, Estuar & Kitson, :Address− 1055 Wilshire Boulevard, Suite 1 880, Los Angeles, California 90017. Phone No. − (213) 386−3 114, ext. 250. Fax No. − (2 13) 3 80−45 85 by CARL A. BARNES (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Claiborne, William) (Entered: 01/02/2013)
408 ORDER granting 407 Motion for Leave to Appear Pro Hac Vice. Signed by Chief Judge Royce C. Lamberth on 1/8/2013. (lcrcl4) (Entered: 01/10/2013)
409 MOTION in Limine by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Ps 3d Suppl Interrog Resps, # 2 Exhibit Jones and Jameson testimony, # 3 Exhibit Day Decl, # 4 Exhibit Day depo excerpt, # 5 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/11/2013)
410 MOTION in Limine No. 1 by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit Ex. 2520−Fezuk Depo Pages, # 2 Exhibit 2521−Simmons Depo Pages, # 3 Text of Proposed Order)(Litt, Barrett) (Entered: 01/11/2013)
411 Memorandum in opposition to re 410 MOTION in Limine No. 1 filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 01/18/2013)

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01/18/2013
01/25/2013 01/25/2013 01/25/2013
01/27/2013 01/28/2013 01/30/2013 01/31/2013 01/31/2013 01/31/2013
02/07/2013 02/11/2013 02/13/2013 02/14/2013
02/14/2013 02/19/2013

412 Memorandum in opposition to re 409 MOTION in Limine of Defendant filed by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Declaration of Barrett S. Litt)(Litt, Barrett) (Entered: 01/18/2013)
413 REPLY to opposition to motion re 410 MOTION in Limine No. 1 filed by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 01/25/2013)
414 REPLY to opposition to motion re 409 MOTION in Limine filed by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 01/25/2013)
415 NOTICE of Filing Draft by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Statement of Facts Draft of Joint Pre−Trial Statement)(Litt, Barrett) (Entered: 01/25/2013)
416 Joint MOTION for Extension of Time to File Pre−trial Statement by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Parsons, Keith) (Entered: 01/27/2013)
417 PRETRIAL STATEMENT by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 01/28/2013)
418 MOTION to Appear Telephonically at 1/31/2013 Conference by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) (Entered: 01/30/2013)
ORDER granting 416 nunc pro tunc Motion for Extension of Time to File Pre−Trial Statement. Signed by Chief Judge Royce C. Lamberth on 1/31/2013. (lcrcl4) (Entered: 01/31/2013)
MINUTE ORDER granting 418 Motion to Permission to Appear Telephonically. Signed by Chief Judge Royce C. Lamberth on 01−31−2013. (lcrcl4) (Entered: 01/31/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Status Conference held on 1/31/2013. Pretrial Conference set for 2/25/2013 at 03:00 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Theresa Sorensen.) (rje) (Entered: 01/31/2013)
419 ERRATA to Defendant's Exhibit List by DISTRICT OF COLUMBIA 417 Pretrial Statement filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 02/07/2013)
Set/Reset Hearings: Jury Trial set for 3/1/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje, ) (Entered: 02/11/2013)
420 NOTICE of Change of Address by Barrett S. Litt (Litt, Barrett) (Entered: 02/13/2013)
421 ORDER granting in part and denying in part 409 District's Motion in Limine; denying 410 Plaintiffs' Motion in Limine. Ordering the parties to submit proposed limiting instructions by 02/25/2013. Ordering plaintiffs to list in full all class member witnesses within 10 days of this date. Signed by Chief Judge Royce C. Lamberth on 02/14/2013. (lcrcl4) Modified on 2/14/2013 (rje, ). (Entered: 02/14/2013)
422 MEMORANDUM OPINION explaining the Court's reasoning as to 421 , its Order resolving the parties' motions in limine 409 & 410 . Signed by Chief Judge Royce C. Lamberth on 02/14/2013. (lcrcl4) (Entered: 02/14/2013)
423 MEMORANDUM OPINION AND ORDER granting in part and denying in part 400 Motion to Stay. Signed by Chief Judge Royce C. Lamberth on 02/19/2013. The Court STAYS its decertification of the special damages class, as reflected in its Memorandum and Order (Trial Plan) 328 at 14, nunc pro tunc as of 12/04/2012. The Court ORDERS the defendant to bear the costs of notice. The Court ORDERS the parties to meet and confer on the wording and mechanics of distribution of class notice. The Court ORDERS the defendant to present to the Court draft notice, at defendant's option, either: (1) within thirty (30) days after the Court's Order resolving the issues related to the upcoming liability trial; or (2) within thirty (30) days after the

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02/21/2013 02/21/2013 02/22/2013 02/22/2013 02/22/2013 02/22/2013 02/25/2013 02/25/2013
02/25/2013 02/26/2013 02/27/2013
02/27/2013 02/27/2013 02/28/2013 02/28/2013 02/28/2013 03/01/2013

Court's Order resolving all class matters, including general damages. (lcrcl4) (Entered: 02/19/2013)
424 TRIAL BRIEF by DISTRICT OF COLUMBIA. (Parsons, Keith) (Entered: 02/21/2013)
425 TRIAL BRIEF by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 02/21/2013)
426 MOTION for Reconsideration re 422 Memorandum & Opinion, 421 Order on Motion in Limine,,, by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 02/22/2013)
427 MOTION for Leave to Appear Telephonically by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) (Entered: 02/22/2013)
428 MEMORANDUM OPINION AND ORDER denying 426 Motion for Reconsideration. Signed by Chief Judge Royce C. Lamberth on 02/22/2013. (lcrcl4) (Entered: 02/22/2013)
MINUTE ORDER granting 427 Motion for Leave to Appear Telephonically. Signed by Chief Judge Royce C. Lamberth on 02/22/2013. (lcrcl4) (Entered: 02/22/2013)
429 MEMORANDUM by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Exhibit 2546, # 2 Exhibit 2547)(Litt, Barrett) (Entered: 02/25/2013)
Minute Entry; for proceedings held before Chief Judge Royce C. Lamberth: Pretrial Conference held on 2/25/2013. Pretrial Conference continued for 2/27/2013 at 02:00 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Patricia Kaneshiro−Miller.) (hs) (Entered: 02/25/2013)
Pretrial Conference set for 2/27/2013 02:00 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. Signed by Chief Judge Royce C. Lamberth on 02/25/2013. (lcrcl4) (Entered: 02/25/2013)
430 Proposed Voir Dire by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 02/26/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Final Pretrial Conference held on 2/27/2013. Jury Trial set for 3/1/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Theresa Sorensen.) (rje) (Entered: 02/27/2013)
431 TRIAL BRIEF (supplemental) by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 02/27/2013)
432 MEMORANDUM by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 02/27/2013)
433 OMNIBUS PRETRIAL ORDER. Signed by Chief Judge Royce C. Lamberth on 02/28/2013. (lcrcl4) (Entered: 02/28/2013)
434 MEMORANDUM re 433 Pretrial Order by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 02/28/2013)
435 SUPPLEMENTAL PRETRIAL ORDER. Signed by Chief Judge Royce C. Lamberth on 02/28/2013. (lcrcl4) (Entered: 02/28/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Voir Dire begun and concluded, Eight (8) Selected and Sworn. Jury Trial begun on 3/1/2013 and continued to 3/4/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Plaintiff's Witnesses: Tyree Speight) (Court Reporter Theresa Sorensen.) (rje) (Entered: 03/01/2013)

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03/03/2013 03/03/2013 03/03/2013
03/03/2013
03/04/2013
03/05/2013
03/05/2013 03/06/2013 03/07/2013
03/07/2013 03/08/2013 03/08/2013 03/08/2013
03/11/2013

436 REDACTED DOCUMENT− Sean Day Redacted Report Revisions Showing by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 03/03/2013)
437 REDACTED DOCUMENT− Sean Day Redacted Report Changes Accepted by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 03/03/2013)
438 REDACTED DOCUMENT− Redacted Report and Attachments of Brian Kriegler by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Supplement Attachment to Report, # 2 Supplement Attachment to Report, # 3 Supplement Attachment to Report, # 4 Supplement Attachment to Report, # 5 Supplement Attachment to Report, # 6 Supplement Spread Sheets of Attachments)(Litt, Barrett) (Entered: 03/03/2013)
439 REDACTED DOCUMENT− Report of Brian Kriegler With Changes Accepted by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Supplement Attachment, # 2 Supplement Attachment, # 3 Supplement Attachment, # 4 Supplement Attachment, # 5 Supplement Attachment, # 6 Supplement Attachments)(Litt, Barrett) (Entered: 03/03/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Trial held on 3/4/2013 with same jury of eight 8. Jury Trial continue to 3/5/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. ( Plaintiff's Witness: Sean Day) (Court Reporter Theresa Sorensen−am; Rebecca StoneStreet−pm.) (rje, ) (Entered: 03/05/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Trial held on 3/5/2013 with same jury of eight 8. Jury Trial continue to 3/6/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. Defense Rule 50 motion heard and denied.(Plaintiff's Witnesses: Brian Kriegler, Myra Diggs) (Court Reporter Theresa Sorensen.) (rje, ) (Entered: 03/05/2013)
440 MOTION for Judgment as a Matter of Law by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 03/05/2013)
441 Memorandum in opposition to re 440 MOTION for Judgment as a Matter of Law filed by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Litt, Barrett) (Entered: 03/06/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Trial held on 3/7/2013 with same jury of eight 8. Jury Trial continue to 3/8/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth.Defense renewed Rule 50 motion heard and denied.(Defendant's Witnesses: Tom Hoey, Mark Sibert) (Court Reporter Theresa Sorensen.) (rje) (Entered: 03/07/2013)
442 REPLY to opposition to motion re 440 MOTION for Judgment as a Matter of Law filed by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 03/07/2013)
443 JURY INSTRUCTIONS. Signed by Chief Judge Royce C. Lamberth on 03/08/2013. (lcrcl4) (Entered: 03/08/2013)
MINUTE ORDER denying 440 Motion for Judgment, consistent with oral denials of motion in open court. Signed by Chief Judge Royce C. Lamberth on 03/08/2013. (lcrcl4) (Entered: 03/08/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Trial begun and completed on 03/08/2013. Plaintiff's motion for judgement as a matter of law heard and denied. Jury Deliberation begun with same Eight (8) jurors on 03/08/2013 at 3:40 P.M. and continued to 03/11/2013 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Theresa Sorensen.) (rje, ) (Entered: 03/08/2013)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Jury Deliberation resumed and concluded on 03/11/2013, same eight (8) Juror. Jury Verdict for the Defendant. Jury panel excused. (Court Reporter Bryan Wayne.) (rje, ) (Entered: 03/11/2013)

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03/11/2013 444 (2) Jury Notes. (rje, ) (Entered: 03/11/2013) 03/11/2013 445 Signature Page of Foreperson

03/11/2013 03/11/2013

in (2) Jury Notes. (Access to the PDF Document is restricted pursuant to the E−Government Act. Access is limited to Counsel of Record and the Court.). (rje, ) (Entered: 03/11/2013)
446 JURY VERDICT FORM. (rje) (Entered: 03/11/2013)
447 Signature Page of Foreperson

03/11/2013 04/02/2013 04/03/2013 04/05/2013 06/03/2013 06/06/2013
06/07/2013 06/07/2013 07/18/2013 07/18/2013 07/18/2013 07/18/2013 08/30/2013 09/04/2013
09/06/2013

in Jury Verdict. (Access to the PDF Document is restricted pursuant to the E−Government Act. Access is limited to Counsel of Record and the Court.). (rje) (Entered: 03/11/2013)
448 Exhibits List by CARL A. BARNES, DISTRICT OF COLUMBIA, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (rje) (Entered: 03/11/2013)
449 NOTICE of Joint Request for Referral to Mediation by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 04/02/2013)
450 ORDER REFERRING CASE to Mediation. Signed by Chief Judge Royce C. Lamberth on 04/03/2013. (lcrcl4) (Entered: 04/03/2013)
Set/Reset Deadlines: Parties Mediation is to conclude by 6/3/2013. (rje) (Entered: 04/05/2013)
451 Consent MOTION for Extension of Time to Continue Mediation by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Parsons, Keith) (Entered: 06/03/2013)
452 ORDER granting 451 Motion for Extension of Time for Mediation. Mediation efforts may continue until 07/16/2013. Status conference scheduled for 07/19/2013 at 9:30 if no settlement stipulation filed. Signed by Chief Judge Royce C. Lamberth on 06/06/2013. (lcrcl4) (Entered: 06/06/2013)
Set/Reset Hearings: Status Conference set for 7/19/2013 09:30 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (lcrcl4) (Entered: 06/07/2013)
Set/Reset Deadlines: Mediation to conclude by 7/16/2013. (lcrcl4) (Entered: 06/07/2013)
453 STATUS REPORT (Joint) by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 07/18/2013)
454 Joint MOTION to Vacate Status Conference by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 07/18/2013)
455 ORDER granting 454 Motion to Vacate 7/19/13 Status Conference; staying matter until further ordered by this Court. Signed by Judge Royce C. Lamberth on 07/18/2013. (lcrcl4) (Entered: 07/18/2013)
Hearings terminated. Signed by Judge Royce C. Lamberth on 07/18/2013. (lcrcl4) (Entered: 07/18/2013)
456 Joint MOTION for Extension of Time to File Motion to Approve Draft Settlement by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Parsons, Keith) (Entered: 08/30/2013)
457 ORDERED that the 456 Motion for Extension of Time to File Motion to Approve Draft Settlement is GRANTED. FURTHER ORDERS that the parties may have until September 24, 2013. (See Image for Details) Signed by Judge Royce C. Lamberth on 9/3/13. (mpt) (Entered: 09/06/2013)
Set/Reset Deadlines: Motion to Approve Draft Settlement due by 9/24/2013. (mpt, ) (Entered: 09/06/2013)

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09/23/2013 09/27/2013 09/27/2013 10/15/2013 10/16/2013 10/16/2013 10/18/2013 10/23/2013
10/23/2013 11/04/2013 11/08/2013 11/08/2013 11/22/2013 12/02/2013 12/03/2013 12/16/2013

458 Joint MOTION for Extension of Time to File Motion to Approve Draft Settlement by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Parsons, Keith) (Entered: 09/23/2013)
459 ORDERED that the 458 Motion for Extension of Time to File Motion to Approve Draft Settlement is GRANTED. FURTHER ORDERED that the parties may have until October 15, 2013. Signed by Judge Royce C. Lamberth on 9/25/13. (mpt, ) (Entered: 09/30/2013)
Set/Reset Deadlines: Motion to Approve Draft Settlement due by 10/15/2013. (mpt, ) (Entered: 09/30/2013)
460 Joint MOTION for Extension of Time to File Motion to Approve Draft Settlement by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 10/15/2013)
461 ORDERED that the 460 Third Joint Motion to Extend Time to File Motion to Approve Draft Settlement is GRANTED. FURTHER ORDERED that the parties shall have until November 4, 2013, to file the motion. Signed by Judge Royce C. Lamberth on 10/16/13. (mpt) (Entered: 10/17/2013)
Set/Reset Deadlines: Motion due by 11/4/2013. (mpt, ) (Entered: 10/17/2013)
462 NOTICE Concerning "Simon Banks, Putative Class Member Motion for Leave to File Notice of Opt−out of Class Action" by DISTRICT OF COLUMBIA (Parsons, Keith) (Entered: 10/18/2013)
463 LEAVE TO FILE DENIED− SIMON BANKS NOTICE PURSUANT TO [§ 43] Opt−Out Rights in a Rule 23(b)(3) Class Action AND SERVE NOTICE THAT HE HAS OPT OUT OF CLASS ACTION. "Leave to file DENIED. See Docket # 290 ", Signed by Judge Royce C. Lamberth on 10/23/2013. This document is unavailable as the Court denied its filing. (zrdj) (Entered: 10/24/2013)
464 LEAVE TO FILE DENIED− SIMON BANKS, PUTATIVE CLASS MEMBER MOTION FOR LEAVE TO FILE NOTICE OF OPT −OUT OF CLASS ACTION. "Leave to file DENIED", Signed by Judge Royce C. Lamberth on 10/23/2013. This document is unavailable as the Court denied its filing. (zrdj) (Entered: 10/24/2013)
465 Joint MOTION for Settlement Preliminary Approval by the Court by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Exhibit Settlement Agreement, # 3 Text of Proposed Order)(Parsons, Keith) (Entered: 11/04/2013)
466 PRELIMINARY ORDER OF APPROVAL AND SETTLEMENT (See Image for Details) Fairness Hearing set for 3/17/2014 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth.. Signed by Judge Royce C. Lamberth on 11/8/13. (mpt, ) (Entered: 11/08/2013)
467 STIPULATION to Modify Claim Forms and Notice by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Proposed Order)(Litt, Barrett) (Entered: 11/08/2013)
468 ORDER on 465 Joint stipulation to substitute modified proof of claim and release form and class notice attached to the class action settlement agreement to the preliminary order of approval and settlement. (Signed by Judge Royce C. Lamberth on 11/21/13). (tj) (Entered: 11/22/2013)
469 MOTION for Leave to File all the attached Papers by SIMON BANKS (Attachments: # 1 Exhibit)"Let this be filed as a Motion for Leave to file all the attached Papers. oppositions and replies to Motion due as set by local rules", by Judge Royce C. Lamberth(rdj) (Entered: 12/03/2013)
470 MOTION for Leave to File OBJECTION TO THE SETTLEMENT AGREEMENT ENTERED by SIMON BANKS (Attachments: # 1 Exhibit)"Let this be filed as a Motion for leave to file.", by Judge Royce C. Lamberth(rdj) (Entered: 12/04/2013)
471 Memorandum in opposition to re 470 MOTION for Leave to File, 469 MOTION for Leave to File filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 12/16/2013)

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01/09/2014 01/09/2014 01/09/2014 01/09/2014 01/09/2014 01/09/2014 01/10/2014 02/05/2014 02/05/2014 02/05/2014 02/10/2014 02/28/2014 03/03/2014
03/17/2014 03/18/2014

472 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) (Entered: 01/09/2014)
473 Declaration of Barrett Litt In Support of Motion re 472 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit A)(Litt, Barrett) Modified on 1/10/2014 (rdj). (Entered: 01/09/2014)
474 Declaration of William Claiborne in Support of Motioon re 472 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) Modified on 1/10/2014 (rdj). (Entered: 01/09/2014)
475 Declaration of Lynn Cunningham in Support of Motion re 472 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) Modified on 1/10/2014 (rdj). (Entered: 01/09/2014)
476 Declaration of Ralph Robinson in Support of Fee Motion re 472 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) Modified on 1/10/2014 (rdj). (Entered: 01/09/2014)
477 Declaration of Roger Zuckerman in Support of Fee Motion re 772 MOTION for Attorney Fees by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Litt, Barrett) Modified on 1/10/2014 (rdj). (Entered: 01/09/2014)
NOTICE OF ERROR re 472 Motion for Attorney Fees; emailed to blitt@kmbllaw.com, cc'd 13 associated attorneys −− The PDF file you docketed contained errors: 1. Counsel is reminded to NOT docket the Declarations separate in the future. NO ACTION REQUIRED. (zrdj, ) (Entered: 01/10/2014)
478 MOTION to Intervene by SIMON BANKS "Let this be filed. Motion DENIED." by Judge Royce C. Lamberth(rdj) (Entered: 02/10/2014)
479 NOTICE of Filing Application to Proceed without Prepaying Fees or Costs by SIMON BANKS "Let this be filed with subsequent errata. Application DENIED. Any Appeal at this time is frivolous. See Court's order of 11/18/13." by Judge Royce C. Lamberth(rdj) (Entered: 02/10/2014)
480 ERRATA by SIMON BANKS 479 NOTICE of Filing Application to Proceed without Prepaying Fees or Costs filed by SIMON BANKS. "Let this be filed as errata to the application." by Judge Royce C. Lamberth(rdj) (Entered: 02/10/2014)
481 ORDER denying 469 Motion for Leave to File Documents; and denying 470 Motion for Leave to File Documents. Signed by Judge Royce C. Lamberth on 2/5/2014. (tg, ) (Entered: 02/11/2014)
482 NOTICE of Proposed Order by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS (Attachments: # 1 Exhibit A, # 2 Supplement, # 3 Text of Proposed Order)(Litt, Barrett) (Entered: 02/28/2014)
483 MEMORANDUM re 482 Notice of Proposed Order filed by DAVID PETERSON, MAURICE WILLIAMS, DERNARD HAWKINS, CARL A. BARNES, TONEY JAMES MALLOY by CARL A. BARNES, DERNARD HAWKINS, TONEY JAMES MALLOY, DAVID PETERSON, MAURICE WILLIAMS. (Attachments: # 1 Text of Proposed Order)(Litt, Barrett) (Entered: 03/03/2014)
Set/Reset Deadlines/Hearings: Please be advised that the Fairness Hearing scheduled for 3/17/2014 has been RESET for 3/18/2014 at 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth (cdw) (Entered: 03/17/2014)
484 FINAL ORDER OF APPROVAL OF SETTLEMENT. Signed by Judge Royce C. Lamberth on March 18, 2014. (lcrcl4) (Entered: 03/18/2014)

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03/18/2014 03/18/2014 03/18/2014 03/26/2014 04/10/2014
04/18/2014
05/01/2014 05/01/2014 01/27/2015 09/18/2015
12/10/2015
12/28/2015 02/11/2016

485 ORDER on Plaintiffs' Petition for Attorneys' Fees and Costs. Signed by Judge Royce C. Lamberth on March 18, 2014. (lcrcl4) (Entered: 03/18/2014)
486 ORDER regarding Chat Lowe. Signed by Judge Royce C. Lamberth on March 18, 2014. (lcrcl4) (Entered: 03/18/2014)
Minute Entry for proceedings held before Judge Royce C. Lamberth: Fairness Hearing held on 3/18/2014. (Court Reporter Crystal Pilgrim) (mpt) (Entered: 03/19/2014)
487 NOTICE OF OPT OUTS by CARL A. BARNES (Claiborne, William) (Entered: 03/26/2014)
488 MOTION for Extension of Time to submit claim form for certain class members by CARL A. BARNES (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/10/2014)
489 Memorandum in opposition to re 488 MOTION for Extension of Time to submit claim form for certain class members filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Saindon, Andrew) (Entered: 04/18/2014)
490 ORDER granting 488 Motion for Extension of Time. Signed by Judge Royce C. Lamberth on May 1, 2014. (lcrcl4) (Entered: 05/01/2014)
491 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on May 1, 2014. (lcrcl4) (Entered: 05/01/2014)
492 NOTICE of Substitution of Counsel Chad Copeland for Grace Graham by DISTRICT OF COLUMBIA (Saindon, Andrew) (Entered: 01/27/2015)
493 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Keith David Parsons terminated. (Parsons, Keith) (Entered: 09/18/2015)
494 Letter to the Court from Warren Washington "Let this be filed. copies to counsel. Counsel shall within 10 days file a status report, jointly." by Judge Royce C. Lamberth (zrdj) (Entered: 12/14/2015)
495 STATUS REPORT Re Claims Processing by CARL A. BARNES. (Litt, Barrett) (Entered: 12/28/2015)
496 STATUS REPORT by DISTRICT OF COLUMBIA. (Saindon, Andrew) (Entered: 02/11/2016)