Case 1:02-cv-02364-RMC Document 58-1 Filed 04/28/2006 Page 1 of 52

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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Dianna Johnson

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Address redacted

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and

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Ms. Rubbiya Muhammed

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Address redacted

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and

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Carolyn Montgomery

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Address redacted

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and

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Tonya Cecelia Mack

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Address redacted

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and

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Laura Lambert

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Address redacted

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and

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Dianne Wilkes

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Address redacted

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and

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Vickie Brooks

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Address redacted

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and

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Keisha Holloway Address redacted
and
Donna Curtis Address redacted
and
On behalf of all others similarly situated
Plaintiffs,
v.
GOVERNMENT OF THE 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
and
UNITED STATES MARSHALS SERVICE Civil Process 600 Army Navy Drive Arlington, VA 22202-4210
and
TODD DILLARD, Individually United States Marshal, D.C. Superior Court H. Carl Moultrie Courthouse 500 Indiana Avenue, N.W. Room C-250 Washington, DC 20001,

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) ) ) ) ) )
) ) ) ) ) ) ) 02-2364 (RMC) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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and

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JOHN DOE NUMBERS 1-10

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Deputy Marshals, D.C. Superior Court)

H. Carl Moultrie Courthouse

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500 Indiana Avenue, N.W.

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Washington, DC 20001,

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and

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JOHN DOE NUMBERS 11-20

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Deputy Marshals, D.C. Superior Court)

H. Carl Moultrie Courthouse

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500 Indiana Avenue, N.W.

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Washington, DC 20001,

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Defendants

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CLASS ACTION FIRST AMENDED COMPLAINT FOR MONEY DAMAGES AND INJUNCTIVE RELIEF
AND PRELIMINARY INJUNCTION AND JURY DEMAND
Introduction
1. Plaintiffs bring this class action lawsuit on behalf of themselves and all other women arrestees who 1) were subjected to blanket strip, visual body cavity and/or squat searches while being held in the Superior Court Cell Block of the District of Columbia Superior Court, waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on charges brought under a District of Columbia statute that were either a) a non-violent, non-drug related traffic charge, b) a non-violent, non-drug related misdemeanor charge, or c) a non-violent, non-drug related felony charge, or 2) were subjected to blanket strip, visual body cavity and/or squat

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searches just before they were admitted to, or while being held in, the Superior Court Cell Block of the District of Columbia Superior Court, while waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on charges brought under a District of Columbia statute regardless of the charges against them because similarly situated men are not subjected to such searches.
2. A “blanket” search means a search undertaken without making an individualized or categorical determination that reasonable suspicion exists to justify the search.
3. Although this amended complaint is written in the present tense, it refers to events that occurred before the last day of April, 2003, when the federal defendants represented to the plaintiffs and the Court that they stopped the strip search practices described herein.
4. Plaintiffs ask the Court to declare two separate subclasses, as described below.
5. Plaintiffs Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tonya Cecelia Mack and Laura Lambert (the “Fourth Amendment Named Plaintiffs”) are women arrestees arrested under a District of Columbia statute, on a) non-violent, non-drug related traffic charges, b) non-violent, non-drug related misdemeanor charges, or c)non-violent, non-drug related felony charges who were subjected to blanket strip, visual body cavity and/or squat
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searches without any individualized finding of reasonable suspicion or probable cause that they were concealing drugs, weapons or other contraband, by United States Marshals at the District of Columbia Superior Courthouse, just before they were held in the Superior Court Cell Block waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court.
6. The great majority of the “Fourth Amendment Named Plaintiffs” and the class members were released from custody after presentment directly from the presentment courtroom either because their cases were no-papered or because they were released on personal recognizance. The Fourth Amendment class does not apply to those who were returned to jail custody because they had bail set that they were unable to post or were detained on the charges on which they were presented or other charges such that they were properly processed into the general jail population for continued detention and were subjected to visual body cavity or squat searches prior to being processed into the general jail population at the DC Jail or the Correctional Treatment Facility.
7. The Fourth Amendment Named Plaintiffs base their claims on the Fourth Amendment of the Constitution, which prohibits subjecting persons arrested on traffic, misdemeanor or felony non drug, non violent offenses to strip and squat searches without an individualized finding of reasonable suspicion or probable cause
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that the person was concealing drugs, weapons or other contraband.
8. Plaintiffs Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tonya Cecelia Mack, Laura Lambert, Dianne Wilkes, Vickie Brooks, Keisha Holloway and Donna Curtis (the “Fifth Amendment Named Plaintiffs”) are women arrestees arrested on all types of District of Columbia charges, including drug and violent offenses, who were subjected to blanket strip, visual body cavity and/or squat searches, by United States Marshals at the District of Columbia Superior Courthouse, while held in the Superior Court Cell Block waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on a charge brought under a District of Columbia statute. Defendants subject women arrestees to such searches, but do not subject similarly situated men arrestees, including men charged with drug and violent offenses, to them.
9. The great majority of the “Fifth Amendment Named Plaintiffs” and the class members are released from custody after presentment directly from the presentment courtroom either because their cases are no-papered or because they are released on personal recognizance. The Fourth Amendment class does not apply to those who were returned to jail custody because they had bail set that they were unable to post or were detained on the charges on which they were presented or other charges such that they were properly
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processed into the general jail population for continued detention and were subjected to visual body cavity or squat searches prior to being processed into the general jail population. 10. The Fifth Amendment Named Plaintiffs base their claims on the equal protection component of the due process clause of the Fifth Amendment of the United States Constitution, which prohibits treating similarly situated men and women differently based on their gender. 11. As used herein, “presentment” refers to the initial proceeding before the Court referred to in Rule 5 of the Superior Court Rules of Criminal Procedure. 12. Violent offense means any of the offenses defined as a “crime of violence” in D.C. Code § 23-1331(4) as defined under Title 22 of the D.C. Code, misdemeanor simple assault, D.C. Code § 22-404 and misdemeanor threats, D.C. Code § 22-407. 13. Drug offense means any offense under District of Columbia law that has as an element, the possession, possession with intent to distribute, or the distribution of, any substance referred to in D.C. Code § 48-901.02, or any item defined as drug paraphernalia by D.C. Code § 48-1101(3).
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14. Traffic and District of Columbia offenses means any offense prosecuted by the Corporation Counsel’s Office of the District of Columbia.
15. Superior Court Cell Block as used herein includes not only the lock up behind Superior Court Courtroom C-10, but also the lock up behind the courtroom where presentments are held for persons arrested on traffic offenses, if strip, squat and visual body cavity searches are held there, and also the hallway leading to the Superior Court Cell Block where the searches described herein actually occur.
16. The Fourth Amendment Named Plaintiffs bring this action against the Government of the District of Columbia, Todd Dillard in his individual capacity, and Does 1-10, in their individual capacities, pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce their Fourth Amendment Rights. Alternatively, the Fourth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual capacity, and Does 1-10 in their individual capacities, directly under the Fourth Amendment to the Constitution. The Fourth Amendment Named Plaintiffs bring this action against the United States Marshals Service directly under the Fourth Amendment to the Constitution.
17. The Fifth Amendment Named Plaintiffs bring this action against the Government of the District of Columbia, Todd Dillard in his individual capacity, and Does 11-20, in their individual
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capacities, pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce their Fifth Amendment Rights. Alternatively, the Fifth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual capacity, and John Does 11-20, in their individual capacities, directly under the Fifth Amendment to the Constitution. The Fifth Amendment Named Plaintiffs bring this action against the United States Marshals Service directly under the Fifth Amendment to the Constitution.
JURISDICTION AND VENUE 18. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) because plaintiffs’ claims are based on Section 1983 and the Constitution.
19. Venue is appropriate in this District. The claim for relief arose in this judicial district.
Fourth Amendment Class Action Allegations
20. The Fourth Amendment 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 each woman who, in the three years preceding the filing of this action, up until the date this case is terminated (“the class period”), was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non
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violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.
21. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because defendants District of Columbia and the United States Marshals Service and the other defendants have a policy and engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
22. The class is entitled to injunctive relief of terminating the above described policy of blanket searches not based on individualized or particularized suspicion or probable cause.
23. 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.
24. Regarding the Fourth Amendment Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior
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Court Cell Block is subjected to the blanket searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating any searches were done pursuant to such individualized suspicion, such people would, by definition, not be members of the class.
25. Among the questions of law and fact common to the class are:
a. whether Defendant District of Columbia and the United States Marshals Service have a policy, custom and practice of subjecting female arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity searches and/or squat searches without an individualized determination that the woman was in possession of drugs, weapons or other contraband;
b. whether such policy, if found to exist, violates the Fourth Amendment;
c. whether the individual defendants were deliberately indifferent to the rights of such women arrestees;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
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e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
f. 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.
26. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least many hundreds of people.
27. Every week at least 10 women meeting the Fourth Amendment class definition are held in the Superior Court Cell Block pending presentment and subject to the illegal searches. Thus this class well exceeds 1000 members.
28. Defendant District of Columbia has within its records the names and addresses of all the current and past class members in the “CJIS” computer system (computerized booking program used by District of Columbia Metropolitan Police Department described below).
29. The Fourth Amendment Named Plaintiffs’ claims are typical of the claims of the other members of the class, because the Fourth Amendment Named Plaintiffs and all other members of the class
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were injured by exactly the same means, that is, by the blanket searches.
30. The Fourth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the 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.
31. The Fourth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
32. The Fourth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Fourth Amendment Class. The class action will be manageable because so many different records systems exist from which to ascertain the members of the putative class. For example, the District of Columbia Metropolitan Police Department maintains “CJIS”, a computerized booking system that captures the name, address, charge, date of charge, date of presentment and post presentment custody status, for every arrestee, and the District of Columbia Superior Court maintains “CIS”, a computer database that captures the name, address, charge, date of charge, date of presentment, docket number and post presentment custody status disposition for every arrestee.
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Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
Fifth Amendment Class Action Allegations
33. The Fifth Amendment 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 each woman who, in the three years preceding the filing of this action, up until the date this case is terminated (“the class period”), was or will be, (i) while in the Superior Court Cell Block or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a blanket strip, visual body cavity and/or squat search.
34. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate, because defendants District of Columbia and the United States Marshals Service and the other defendants have a policy and engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
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35. The class is entitled to injunctive relief of terminating the searches.
36. 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.
37. Regarding the Fifth Amendment Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior Court Cell Block is subjected to the blanket searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating any searches were done pursuant to such individualized suspicion, such people would, by definition, not be members of the class.
38. Among the questions of law and fact common to the class are:
a. whether Defendant District of Columbia and the United States Marshals Service have a policy or custom and practice of subjecting female arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity and/or squat
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searches, but not subjecting men arrestees to such searches; b. whether the policy of strip searching women arrestees serves any legitimate penological interest; c. whether classification of similarly situated men and women arrestees into classes based on gender bears any relationship to defendants’ asserted penological interest; d. whether such policy, if found to exist, violates the Fifth Amendment; e. whether the individual defendants were deliberately indifferent to the rights of such women arrestees; f. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages; and g. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and h. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members except those who opt out.
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39. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least several thousands of people.
40. Every week at least seventy-five women meeting the Fifth Amendment class definition are held in the Superior Court Cell Block pending presentment and subject to the illegal searches.
41. The Fifth Amendment Named Plaintiffs’ claims are typical of the claims of the other members of the class, because the Fifth Amendment Named Plaintiffs and all other members of the class were injured by exactly the same means, that is, by the blanket searches.
42. The Fifth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the 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.
43. The Fifth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
44. The Fifth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve
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the issues raised on behalf of the Fifth Amendment Class. The class action will be manageable because so many different records systems exist from which to ascertain the members of the putative class. For example, the District of Columbia Metropolitan Police Department maintains “CJIS”, a computerized booking system that captures the name, address, charge, date of charge and date of presentment for every arrestee, and the District of Columbia Superior Court maintains “CIS”, a computer database that captures the name, address, charge, date of charge, date of presentment, docket number and disposition for every arrestee. Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
45. Defendant District of Columbia has within its computerized records described above the names and addresses of all the current and past class members.
PARTIES 46. Plaintiff Dianna Johnson is an adult resident of the District of Columbia. 47. Plaintiff Rubbiya Muhammed is an adult resident of the state of Maryland.
48. Plaintiff Carolyn Montgomery is an adult resident of the District of Columbia.
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49. Plaintiff Tonya Cecelia Mack is an adult resident of the District of Columbia. 50. Plaintiff Laura Lambert is an adult resident of the state of California. 51. Plaintiff Dianne Wilkes is an adult resident of the Commonwealth of Virginia. 52. Plaintiff Vicki Brooks is an adult resident of the District of Columbia. 53. Plaintiff Keisha Hollaway is an adult resident of the state of Maryland. 54. Plaintiff Donna Curtis is an adult resident of the state of Maryland. 55. Defendant the Government of the District of Columbia (hereinafter the District of Columbia) is a municipal corporation capable of being sued under D.C. Code § 1-102. 56. Defendant United States Marshals Service is an agency of the federal government located in Washington, DC, and is jointly responsible with Defendant District of Columbia for planning and implementing the strip, visual body cavity and squat searches of women arrestees described below in this Complaint. In the context of the facts of this complaint, it operates as an agent of the District of Columbia, as is more fully explained below.
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57. Defendant Todd Dillard is the United States Marshal for the Superior Court of the District of Columbia. Marshall Dillard is sued in his individual capacity.
58. Does 1-10 are Deputy United States Marshals who developed and implemented the current policy complained of by members of the Fourth Amendment Class defined above. Does 1-10 are sued in their individual capacity.
59. Does 11-20 are Deputy United States Marshals who developed and implemented the current policy complained of by members of the Fifth Amendment Class defined above. Does 11-20 are sued in their individual capacity.
FACTUAL ALLEGATIONS
60. Every person who is arrested in the District of Columbia pursuant to a statute or warrant of the District of Columbia and who is taken to the District of Columbia Superior Court for presentment before a judge or other judicial officer of the District of Columbia is held in a designated area of the Superior Court Courthouse called the Superior Court Cell Block pending presentment.
61. The Chief Judge of the District of Columbia Superior Court controls the disposition of the space at the District of Columbia Superior Court, including areas where arrestees and other prisoners are held. For example, by Superior Court
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Administrative Order 02-14 he authorized the MPD to use Cellblock B as a booking center the day of the IMF protests in 2002. 62. The District of Columbia through Chief Judge King also has control of the prisoners in the Superior Court courthouse. 63. Every person held in the Superior Court Cell Block pending presentment who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute is held in the joint custody of the United States Marshal for the Superior Court of the District of Columbia (Todd Dillard) and the Government of the District of Columbia.
64. Chief Judge King in 2002 issued an administrative order ordering that Marshals cannot remove in-custody defendants from the Superior Court courtrooms until after the judges and courtroom staff have completed appropriate paperwork, and further, Marshals cannot return in-custody defendants to the DC Jail unless the Marshals have all his paperwork in all of his cases. Chief Judge King’s Administrative Order 02-22, dated July 25, 2002. 65. The Superior Court of the District of Columbia is an agency of the Government of the District of Columbia.
66. Defendant Todd Dillard as the United States Marshal for the Superior Court of the District of Columbia derives his authority over women arrestees in the Superior Court Cell Block pursuant to statutes of the District of Columbia, including D.C. Code §§ 13-
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302, 16-703, 23-501, 23-561, 23-563 and 23-581 and cooperative agreements entered into between the United States Marshals Service and the Government of the District of Columbia pursuant to D.C. Code § 5-133.17. 67. Defendant District of Columbia pays every year for some or all of the costs of operation, maintenance and repair of space used by the United States Marshals Service at the District of Columbia Superior Court Courthouse. 68. Defendant District of Columbia pays every year for some or all of the costs incurred by the United States Marshals Service in performing their duties at the District of Columbia Superior Court Courthouse. 69. The United States Marshal for the Superior Court and his deputies act as the agents of the Defendant District of Columbia pursuant to District of Columbia statutes, policies and/or practices while holding arrestees in the Superior Court Cell Block and other areas of the Superior Court Courthouse. 70. Upon arrest, persons arrested in the District of Columbia are held at one of the seven District “stations” before transport to Central Cellblock (the District of Columbia Metropolitan Police (“MPD”) lock-up for holding arrestees) or are taken directly to Central Cellblock.
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71. MPD Officers transport the women arrestees from the District stations or the MPD Central Cellblock by van to the Superior Court. 72. Each van load of prisoners has a manifest (“van sheet”} listing the names and arrest charges of each of the women arrestees on the van. 73. The arrestees in the Superior Court Cell Block have been subjected to pat down searches by the transporting police officers before being transported to the Superior Court Cell Block by the MPD. 74. Any person who is transported to the Superior Court Cell Block from any of the seven District of Columbia Metropolitan Police Department patrol districts or the District of Columbia Metropolitan Police Department’s Central Cell Block has been subjected to a thorough pat down at the patrol station or the District of Columbia Metropolitan Police Department Central Cell Block before being transported to Superior Court Cell Block. 75. The only persons housed in the Superior Court Cell Block designated for arrestees are arrestees brought to the Superior Court Courthouse for presentment to a judicial officer of the District of Columbia on a charge of violating a District of Columbia statute.
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76. The great majority of women arrestees are released directly from the Superior Court Courthouse after presentment either because their cases are no-papered or they are released on personal recognizance. The Fourth and Fifth Amendment classes do not encompass those who were returned to jail custody because they had bail set that they were unable to post or were detained on the charges on which they were presented or other charges such that they were properly processed into the general jail population for continued detention and were subjected to visual body cavity or squat searches prior to being processed into the general jail population. 77. 25% to 35% of women arrestees have their cases “no-papered” that is the prosecuting agency rejects the charges completely. 78. Many women arrestees arrested on felony charges have their charges “papered down” to a misdemeanor before presentment. 79. Women and men arrestees who are denied bail at presentment and ordered to the jail and women and arrestees who are held pending trial are transported in vans and buses from the Superior Court Courthouse to the DC Jail. They are not intermingled with pre-presentment women arrestees. 80. There is no “general population” at the Superior Court Cell Block.
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81. Other prisoners at the Superior Court Courthouse are not intermingled with the arrestees prior to the search. 82. Men arrestees and women arrestees brought to the Superior Court Courthouse are segregated by sex, and the men and women are held separately in separate areas in the Superior Court Cell Block. 83. The United States Marshal for the Superior Court, and his deputies, follow a policy and custom of subjecting, upon their admission to the Superior Court Cell Block, all women arrestees to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the woman arrestee is in possession of weapons, drugs or other contraband. 84. Agents of the Marshals Service actually physically conduct the visual body cavity and squat searches of the women arrestees in a hallway as the women are dropped off by the MPD transport officers on the way to the the Superior Court Cell Block. 85. Agents of the District of Columbia, including the United States Marshal for the Superior Court and his deputies, do not subject men arrestees in the Superior Court Cell Block awaiting presentment to blanket strip, visual body cavity and/or squat searches.
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86. The search procedure conducted on the women arrestees in the Superior Court Cell Block is as follows: 87. When women arrestees are transported to the Superior Court Cell Block, a female United States Marshals conducts full body pat down searches on them from head to toe. 88. A female Marshal then makes the women arrestees take off their shoes and shake them out. 89. A female Marshal then directs the arrestees to pull up her skirt or to lower her pants and to pull down any undergarments. 90. A female Marshal then makes the arrestees squat and turn around and display their buttocks and their genitals to the female Marshal. 91. The Marshals stand just a few feet away from the women arrestees as they do the searches. 92. The searches are conducted in front of all the women arrestees already in the hallway leading from the reception area to the Superior Court Cell Block. 93. There is no dedicated searching area. 94. The MPD transport officers mingle with the women arrestees and the US Marshals near the sally port and are aware of the strip/body cavity/squat searches.
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95. The searching officers could look at the van sheets to make individualized determinations of the need for searches based on the nature of the charge but they do not. 96. Each arrestee coming in from MPD has a plastic wrist band on. The Marshals, as they receive the arrestees, mark the level of the charge on the wrist band in black marker (“D” for District charge, “T” for traffic charge, “V” for domestic violence, “M” for misdemeanor and “F” for felony). 97. The Marshals subject the women arrestees to very thorough searches upon their arrival at the Superior Courthouse. 98. First, the Marshals make women arrestees pass metal detectors upon their arrival at the Superior Court Courthouse. 99. Also, after the women pass the metal detectors, the Marshals perform thorough pat down searches on the women arrestees, check their hair, wig, hairpiece or hat, and remove and inspect coats and shoes. 100. During the pat down searches the Marshals also search the waistband areas, the pockets, the leg areas, the feet and the shoes of the women arrestees. 101. The Marshals then subject women arrestees at the Superior Court Cellblock to strip and squat and visual body cavity searches in which the women drop their pants or lift their skirts, take down their undergarments, and squat and cough.
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102. The Marshals perform the strip/squat/visual body cavity searches described above on every single woman arrestee, without exception, and regardless of her charge or her appearance 103. The searches are public, humiliating, and degrading and cause emotional and psychic injury to the women arrestees. 104. The practice of the searches is not supported by a documented history of contraband smuggling at the Superior Court Cell Block. 105. The practice of the searches is not justified by a legitimate security interest. 106. Other less invasive means of searching the women arrestees exist, such as thorough pat downs, electronic screeners and hand held “wands” or scanners, or drug detection canines. 107. After the Marshals conduct the strip, squat and visual body cavity searches on the women arrestees, the Marshals put the women in the Superior Court Cell Block and allow them to have unsupervised visits with attorneys before they enter the courtroom for presentment. 108. The attorneys and the women arrestees are separated only by grills that have 4 inch by 12 inch slots in the grill work for items and paperwork to be passed through.
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109. United States Marshals Service employees including Does 1-10 and Does 11-20 participated in making and implementing the policy of subjecting women arrestees to the above-described searches.
110. Defendant District of Columbia employees participated in making and implementing the policy of subjecting women arrestees to the above-described searches and acquiesce in and facilitate the practice.
111. Before instituting the current practice of holding women arrestees at the District stations or Central Cellblock before bringing them to the Superior Court for presentment, the District followed a practice of committing arrestees to the DC Jail and holding them there till they were transported to the Superior Court for presentment.
112. At that time (in the 1980s and 1990s) the District followed a practice of subjecting all women arrestees committed to the DC Jail awaiting transport to the courthouse for presentment {“police cases”} to visual body cavity strip searches.
113. On July 22, 1981 The Honorable Audrey Robinson of this Court entered on Order (“Morgan Order”) which directed, among other things, that the District of Columbia not conduct strip or squat searches of female police cases housed at the District of Columbia Detention Facility [DC Jail] in the absence of a "reasonable suspicion that a weapon, contraband or evidence of a crime are concealed on the person or in the clothing of the
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arrestee which the District or its agents reasonably believe can only be discovered by a strip or squat search." Morgan v. Barry, 596 F. Supp. 897, 898 (D.D.C. 1984).
114. The Honorable Audrey Robinson entered an Order on October 29, 1985 continuing the Morgan Order (and another order) “for an indefinite period of time”. Morgan v. Barry, 81-cv-1419, Docket Entry No. 82, 1985 (docket sheet). The orders remain in effect.
115. The Morgan Order and other orders impose on the District of Columbia an obligation to ensure that the District of Columbia protect female arrestees from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment.
116. The Morgan Order and other orders impose on the District of Columbia an obligation to ensure that anyone to whom the District of Columbia entrusts its female arrestees also protect the District’s female arrestees from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment.
117. The Morgan Order and other orders impose on the District of Columbia an obligation to monitor the conduct of persons to whom the District of Columbia entrusts its female arrestees to ensure they are protected from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment.
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118. The District of Columbia remained and remains obligated under the Morgan Order and other orders to ensure that Todd Dillard and the Marshals protect the female arrestees from blanket strip searches while the Marshals have physical custody of the District’s prisoners. 119. The Morgan Order and other orders impose on Todd Dillard and the Marshals a duty to familiarize themselves with laws and orders which protect the District’s female arrestees from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment. 120. The Government of the District of Columbia knows , and knew at all times within the class period, that women arrestees would be subjected to blanket searches in the Superior Court Cell Block and the Government of the District of Columbia acquiesces in the searches. 121. Agents of the District of Columbia regularly mingle at the Superior Court courthouse with the Marshals and the arrestees and know, and knew at all times within the class period, about the searches. 122. Many female District of Columbia employees have been arrested and undergone the strip searches during the class period.
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123. The Government of the District of Columbia has during the class period had actual or constructive knowledge that the United States Marshals Service subjected women arrestees to the strip searches complained of herein. 124. The Government of the District of Columbia knowingly and as part of its practice, policy, and custom, nonetheless transferred women arrestees in its custody to the custody of United States Marshals Service, causing each member of the Classes to be subjected to the strip searches. 125. The Government of the District of Columbia has an affirmative duty to protect arrestees from harm, including the risk of violations of constitutional rights by a third party to whom the arrestees are transferred, particularly in areas and on issues where court orders requiring it respect certain constitutional rights have been issued. 126. The Government of the District of Columbia has never protested the searches before the filing of the original complaint in this case.
127. The District of Columbia failed to take any affirmative act reasonably calculated to protect arrested persons in its custody and prevent unconstitutional strip searches. 128. The District of Columbia delegated its duties to the United States Marshals Service but failed to train the Marshals in strip search polices even though the need for training was obvious.
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129. The constitutional violations that resulted are foreseeable because of the District’s failure to train. 130. Every person who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute was arrested by a person acting under color of District of Columbia law and engaging in state action. D.C. Code § 23-561; D.C. Code § 23-581.
131. Every person held in the Superior Court Cell Block pending presentment who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute is held by a person acting under color of District of Columbia law and engaging in state action.
132. Defendant Todd Dillard, as the United States Marshal for the Superior Court of the District of Columbia, derives his authority over women arrestees in the Superior Court Cell Block pursuant to statutes of the District of Columbia, including D.C. Code §§ 13302, 16-703, 23-501, 23-561, 23-563 and 23-581 and cooperative agreements entered into between the United States Marshals Service and the government of the District of Columbia pursuant to D.C. Code § 5-133.17, and the authority of the Chief Judge acting in an administrative capacity for the District of Columbia.
133. At all times described herein Defendant Todd Dillard and Does 1-10 and Does 11-20 were acting under color of District of
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Columbia law and they were acting pursuant to the policy, custom and practice of Defendant District of Columbia. NAMED PLAINTIFFS ARRESTED ON TRAFFIC OFFENSES 134. Plaintiff Dianna Johnson was arrested on a charge of driving on a revoked license under D.C. Code § 50-1403.01 by officers of the District of Columbia Metropolitan Police Department. 135. Plaintiff Dianna Johnson was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on January 29, 2002. 136. Upon arriving at the Superior Court for presentment, Plaintiff Dianna Johnson was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 137. Plaintiff Dianna Johnson was released on personal recognizance directly from the courtroom after presentment on January 29, 2002. 138. Plaintiff Rubbiya Muhammed was arrested on a bench warrant in connection with a DWI (driving while under the influence of alcohol) case under D.C. Code § 50-2205.02 by officers of the District of Columbia Metropolitan Police Department.
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139. Plaintiff Rubbiya Muhammed was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
140. Upon arriving at the Superior Court for presentment, Plaintiff Rubbiya Muhammed was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
141. Plaintiff Rubbiya Muhammed was released on personal recognizance directly from the courtroom after presentment on October 5, 2002.
NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR SOLICITATION OF PROSTITUTION
142. Plaintiff Carolynn Montgomery was arrested and detained on a charge of solicitation of prostitution under D.C. Code § 22-2701 by officers of the District of Columbia Metropolitan Police Department.
143. Plaintiff Carolynn Montgomery was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
144. Upon arriving at the Superior Court for presentment, Plaintiff Carolynn Montgomery was subjected to a strip, visual
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body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 145. Plaintiff Carolynn Montgomery was released on personal recognizance directly from the courtroom after presentment on October 5, 2002. NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR CONTEMPT OF COURT 146. Plaintiff Tonya Mack was arrested on a warrant for contempt of court for violations of conditions of release in a solicitation of prostitution case under the D.C. Code by officers of the District of Columbia Metropolitan Police Department. 147. Plaintiff Tonya Mack was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 4, 2002. 148. Upon arriving at the Superior Court for presentment, Plaintiff Tonya Mack was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 149. Plaintiff Tonya Mack was released on personal recognizance directly from the courtroom after presentment on October 4, 2002. NAMED PLAINTIFFS ARRESTED ON FIRST DEGREE THEFT
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150. Plaintiff Laura Lambert was arrested by officers of the District of Columbia Metropolitan Police Department on a charge of theft of more than $250.00 (shoplifting at Neiman Marcus) under D.C. Code § 22-3211.
151. Plaintiff Laura Lambert was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
152. Upon arriving at the Superior Court for presentment, Plaintiff Laura Lambert was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
153. Plaintiff Laura Lambert’s case was “papered down” from felony theft to misdemeanor theft before presentment and she was presented on a charge of misdemeanor theft.
154. Plaintiff Laura Lambert was released on personal recognizance directly from the courtroom after presentment on October 5, 2002.
NAMED PLAINTIFF ARRESTED ON MISDEMEANOR SIMPLE ASSAULT
155. Plaintiff Diane Wilkes was arrested and detained on a charge of misdemeanor simple assault under D.C. Code § 22-404 by officers of the District of Columbia Metropolitan Police Department.
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156. Plaintiff Diane Wilkes was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 157. Upon arriving at the Superior Court for presentment, Plaintiff Diane Wilkes was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 158. Plaintiff Diane Wilkes was released on personal recognizance directly from the courtroom after presentment September 25, 2002. NAMED PLAINTIFFS ARRESTED ON FELONY THREATS 159. Plaintiff Vickie Brooks was arrested on a charge of felony threats under D.C. Code § 22-1810 by a member of the District of Columbia Metropolitan Police Department. 160. Plaintiff Vickie Brooks was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 161. Upon arriving at the Superior Court for presentment, Plaintiff Vickie Brooks was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
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162. Plaintiff Vickie Brooks was released on personal recognizance directly from the courtroom after presentment September 25, 2002. NAMED PLAINTIFFS ARRESTED ON AGGRAVATED ASSAULT 163. Plaintiff Keisha Holloway was arrested on a charge of aggravated assault under D.C. Code § 22-404.01 by a member of the District of Columbia Metropolitan Police Department. 164. Plaintiff Keisha Holloway was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002. 165. Upon arriving at the Superior Court for presentment, Plaintiff Keisha Holloway was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 166. Plaintiff Keisha Holloway was released on personal recognizance directly from the courtroom after presentment October 5, 2002. NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR POSESSION OF PARAPHERNALIA
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167. Plaintiff Donna Curtis was arrested on a charge of possession of paraphernalia under D.C. Code § 48-1103 by a member of the District of Columbia Metropolitan Police Department. 168. Plaintiff Donna Curtis was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 169. Upon arriving at the Superior Court for presentment, Plaintiff Donna Curtis was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 170. Plaintiff Donna Curtis was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
SUBSTANTIVE ALLEGATIONS CLAIMS OF FOURTH AMENDMENT NAMED PLAINTIFFS
Count 1 Violation of Fourth Amendment Rights of Fourth Amendment
Plaintiffs under § 1983 171. The Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint.
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172. While being held for presentment in the Superior Court Cell Block each of the Fourth Amendment Named Plaintiffs and every other class member were subjected to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband, pursuant to a custom, policy and/or practice of Marshal Dillard, the United States Marshal’s Service, and the District of Columbia – each of which is jointly and severally liable and responsible for such policy, custom and/or practice - to conduct such searches.
173. Subjecting an arrestee arrested on a non drug, non violent offense to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband violates her Fourth Amendment Rights.
174. The Defendants knew that the Fourth Amendment Named Plaintiffs and other class members would be subject to the searches in the Superior Court Cell Block and acquiesced in the searches.
175. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Fourth Amendment Named Plaintiffs and the class members’ Fourth Amendment Rights.
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176. Defendant District of Columbia and the United States Marshals Service’s policy, custom and practice described above were the moving force behind the deprivations to the Fourth Amendment Named Plaintiffs’ and other class members’ Fourth Amendment Rights and the Fourth Amendment Named Plaintiffs and the other class members’ injuries as described above.
177. Defendants caused the unreasonable strip, visual body cavity search and/or squat searches of the Fourth Amendment Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a policy and practice and custom of strip searching women arrestees.
178. At all relevant times District of Columbia and United States Marshal Service 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 the United States Marshals Service, and such employees were acting in furtherance of the business of the District of Columbia and the United States Marshals Service.
179. In developing, implementing and participating in the custom, policy, practice and conduct complained of herein, Marshal Todd Dillard was acting as an agent and delegated policy maker of the District of Columbia. Similarly, members of the Marshal’s Service, acting under Marshal Dillard’s supervision and direction
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in developing, implementing and participating in the custom, policy, practice and conduct complained of herein, were acting as agents of the District of Columbia. 180. Defendant District of Columbia and Defendant Todd Dillard and Does 1-10 are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other class members caused by their conduct.
Count 2 Direct Liability of the United States Marshals Service and Todd Dillard (the United States Marshal for the Superior Court) and
the United States Marshal Service employees Does 1-10 for Violation of Fourth Amendment Rights of Fourth Amendment
Plaintiffs for Illegal Searches 181. The Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 182. Each of the Fourth Amendment Named Plaintiffs was arrested by officers of the District of Columbia Metropolitan Police Department under the authority of a District of Columbia statute and held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block and was actually presented before a District of Columbia
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Superior Court Judge or other judicial officer in a courtroom in the District of Columbia Superior Court. 183. At all times that each of the Fourth Amendment Named Plaintiffs and every other class member was in the Superior Court Cell Block, she was in the joint custody of one or more agents of the Government of the United States and the United States Marshals Service and the District of Columbia. 184. While in the Superior Court Cell Block, each of the Fourth Amendment Named Plaintiffs and every other class member was subjected to a strip, visual body cavity search and/or squat search by an agent of the United States Marshals Service without an individual determination that the search would reveal weapons, drugs or other contraband. 185. Defendant United States Marshals Service and Defendant Todd Dillard and Does 1-10 violated the Fourth Amendment rights of the Fourth Amendment Named Plaintiffs by establishing and implementing the search policies described above. 186. The United States Marshals Service and Defendant Todd Dillard and Does 1-10 are therefore directly liable under the Fourth Amendment for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other class members caused by their conduct.
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CLAIMS OF FIFTH AMENDMENT NAMED PLAINTIFFS Count 3
Liability of Defendants for Violation of Fifth Amendment Rights of Fifth Amendment Plaintiffs for Illegal Searches under § 1983 187. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 188. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other class member were subjected to a visual body cavity search and squat search, pursuant to a custom, policy and/or practice of Marshal Dillard, the United States Marshal’s Service, and the District of Columbia – each of which is jointly and severally liable and responsible for such policy, custom and/or practice - to conduct such searches. 189. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other class member, was similarly situated to every male arrestee. 190. The visual body cavity and squat searches of the women arrestees do not serve any legitimate penological interest.
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191. The classification of arrestees into classes based on gender bears no relationship to defendants’ asserted penological interest.
192. Defendants knew that the Fifth Amendment Named Plaintiffs and other class members would be subject to the above-described searches in the Superior Court Cell Block and acquiesced in the searches.
193. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Fifth Amendment Named Plaintiffs and the class members’ Fifth Amendment Rights.
194. Defendant District of Columbia and the United States Marshals Service’s policy, custom and practice described above were the moving force behind the deprivations to the Fifth Amendment Named Plaintiffs’ and other class members’ Fifth Amendment Rights.
195. Defendants’ actions, and failure to act, as described above, directly and proximately caused, and was the moving force behind the Fifth Amendment Named Plaintiffs and the other class members’ injuries as described above.
196. District of Columbia and United States Marshal Service employees caused the unreasonable strip, visual body cavity search and/or squat searches of the Fifth Amendment Named
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Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a policy and practice of strip searching women arrestees.
197. At all relevant times such District of Columbia and United States Marshal Service 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 the United States Marshals Service, and such employees were acting in furtherance of the business of the District of Columbia and the United States Marshals Service.
198. In developing, implementing and participating in the custom, policy, practice and conduct complained of herein, Marshal Todd Dillard was acting as an agent and delegated policy maker of the District of Columbia. Similarly, members of the Marshal’s Service, acting under Marshal Dillard’s supervision and direction in developing, implementing and participating in the custom, policy, practice and conduct complained of herein, were acting as agents of the District of Columbia.
199. Defendant District of Columbia and Defendant Todd Dillard and Does 11-20 are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fifth Amendment Named Plaintiffs and all other class members caused by them.
Count 4
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Direct Liability of the United States Marshals Service and Todd Dillard and Does 11-20 for Violation of Fifth Amendment Rights of
Fifth Amendment Named Plaintiffs 200. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint. 201. The visual body cavity and squat searches of the women arrestees do not serve any legitimate penological interest. 202. The classification of arrestees into classes based on gender bears no relationship to defendants’ asserted penological interest. 203. Defendant United States Marshals Service and Defendant Todd Dillard and Does 11-20 violated the Fifth Amendment rights of the Fifth Amendment Named Plaintiffs by establishing and implementing the search policies described above. 204. The United States Marshals Service and Defendant Todd Dillard and Does 11-20 are therefore directly liable under the Fifth Amendment for constitutional injuries to the Fifth Amendment Named Plaintiffs and all other class members caused by their conduct.
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IRREPARABLE INJURY AND INJUNCTIVE RELIEF
205. Defendants are unreasonably subjecting members of the subclasses to strip, visual body cavity and/or squat searches, which irreparably harms them, even if they are later able to recover compensatory damages.
206. Defendants’ performing illegal searches of the Named Plaintiffs and the class members has irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff classes, thus making declaratory and injunctive relief necessary.
PRAYER FOR RELIEF
WHEREFORE, the Fourth Amendment Named 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 23(b)(3) and certify the Fourth Amendment Named Plaintiffs as the proper representative of the class consisting of each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non
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drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband; 3) declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) and certify the Fifth Amendment Named Plaintiffs as the proper representative of the class consisting of each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a strip, visual body cavity search and/or squat search. 4) declare that defendants’ acts alleged above violate the Fourth and Fifth Amendments to the Constitution by illegally strip searching plaintiffs as alleged herein; 5) preliminarily and permanently enjoin defendants from pursuing the course of conduct complained of herein; 6) award all plaintiffs compensatory and consequential damages in an amount to be determined;
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7) award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988 and any other applicable statute;
8) grant such other relief as this Court deems just and proper.
Respectfully submitted,
_________/s/____________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Named Plaintiffs and the Classes 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
Respectfully submitted,
____________/s/____________________ Louis Kleiman D.C. Bar # 124-933 Counsel for Plaintiffs and the Classes 2055 15th Street Arlington, VA Phone 703-524-3333 Fax 703-525-2222
Respectfully submitted,
_________/s/____________________ Barrett S. Litt, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA
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Case 1:02-cv-02364-RMC Document 58-1 Filed 04/28/2006 Page 52 of 52 Phone (213)-386-3114 Fax (213)-380-4585 Respectfully submitted, ______/s/_______________________ Paul Estuar, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
52

 
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED
DEC - 2 2002

. Di",nn", Johnson
Address redacted
and Ms. Rubbiy", Muhammed
Address redacted
and Carolyn Montgomery
Address redacted
and Tonya Cecelia Mack
.
Address redacted
and Laura Lambert Address redacted
and Dianne Wilkes
Address redacted
and Vickie Brooks
Address redacted
and

) ) ) ) ) ) ) ) ) ) ) )
CASE NUMBER

1:02CV02364

JUDGE. John D. Bates

DECK TYPE: Civil Rights

DATE STAMP: 12/02/2002

)
)
)
)
)
)
) ) )
)
)
)
) ) )
)
)
)
) ) ) )
)
)
)

1

o

Keisha Holloway

)

Address redacted

)

)

)

and

)

)

Donna Curtis

)

Address redacted

)

)

)

and

)

)

On behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

)

v.

)

)

)

GOVERNMENT OF THE

)

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

)

)

and

)

)

UNITED STATES MARSHALS SERVICE

)

Civil Process

)

600 Army Navy Drive

)

Arlington, VA 22202-4210

)

)

and

)

)

TODD DILLARD, Individually

)

United States Marshal, D.C.

)

Superior Court

)

H. Carl Moultrie Courthouse

)

500 Indiana Avenue, N.W.

)

Room C-250

)

Washington, DC 20001,

)

)

and

)

2

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o

)

~OHN DOE NUMBERS 1-10

)

Deputy Marshals, D.C. Superior Court)

H. Carl Moultrie Courthouse

)

500 Indiana Avenue, N.W.

)

Washington, DC 20001,

)

)

and

)

)

JOHN DOE NUMBERS 11-20

)

Deputy Marshals, D.C. Superior Court)

H. Carl Moultrie Courthouse

)

500 Indiana Avenue, N.W.

)

Washington, DC 20001,

)

)

Defendants

)

CLASS ACTION COMPLAINT FOR MONEY DAMAGES AND INJUNCTIVE RELIEF
AND PRELIMINARY INJUNCTION AND JURY DEMAND
Introduction
1. Plaintiffs bring this class action lawsuit on behalf of themselves and all other women arrestees who 1) were subjected to blanket strip, visual body cavity and/or squat searches while being held in the Superior Court Cell Block of the District of Columbia Superior Court, waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on charges brought under a District of Columbia statute that were either a) a non-violent, non-drug related traffic charge, b) a non-violent, non-drug related misdemeanor charge, or c) a non-violent, non-drug related felony charge, or 2) were subjected to blanket strip, visual body cavity and/or squat searches while being held in the Superior Court Cell Block of the

3

o
..
District of Columbia Superior Court, waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on charges brought under a District of Columbia statute regardless of the charges against them Decause similarly situated men are not subjected to such searches.
2. Plaintiffs ask the Court to declare two separate subclasses, as described below.
3. Plaintiffs Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tanya Cecelia Mack and Laura Lambert (the "Fourth Amendment Named Plaintiffs") are women arrestees arrested under a District of Columbia statute, on a) non-violent, non-drug related traffic charges, b) non-violent, non-drug related misdemeanor charges, or c) non-violent, non-drug related felony charges who were subjected to blanket strip, visual body cavity and/or squat searches without any individualized finding of reasonable suspicion or probable cause that they were concealing drugs, weapons or other contraband, by United States Marshals at the District of Columbia Superior Courthouse, while they were held in the Superior Court Cell Block waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court.
4. The great majority of the "Fourth Amendment Named Plaintiffs" and the class members were released from custody after presentment directly from the presentment courtroom either
4
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,.

because their cases were no-papered or because they were released

on personal recognizance. The Fourth Amendment class does not

apply to those who were returned to jail custody because they had

bail set that they were unable to post or were detained on the

charges on which they were presented or other charges such that

they were properly processed into the general jail population for

continued detention and were subjected to visual body cavity or

squat searches prior to being processed into the general jail

population at the DC Jailor the Correctional Treatment Facility.

5. The Fourth Amendment Named Plaintiffs base their claims on the Fourth Amendment of the Constitution, which prohibits subjecting persons arrested on traffic, misdemeanor or felony non drug, non violent offenses to strip and squat searches without an individualized finding of reasonable suspicion or probable cause that the person was concealing drugs, weapons or other contraband.

6. Plaintiffs Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tonya Cecelia Mack, Laura Lambert, Dianne Wilkes, Vickie Brooks, Keisha Holloway and Donna Curtis (the "Fifth Amendment Named Plaintiffs fl ) are women arrestees arrested on all types of District of Columbia charges, inclUding drug and violent offenses, who were subjected to blanket strip, visual body cavity and/or squat searches, by United States Marshals at the District of Columbia Superior Courthouse, while held in the Superior Court

5

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Cell Block waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court on a charge brought under a District of Columbia statute. Defendants subject women arrestees to such searches, but do not subject similarly situated men arrestees, including men charged with drug and violent offenses, to them.
7. The great majority of the "Fifth Amendment Named Plaintiffs" and the class members are released from custody after presentment directly from the presentment courtroom either because their cases are no~papered or because they are released on personal recognizance. The Fourth Amendment class does not apply to those who were returned to jail custody because they had bail set that they were unable to post or were detained on the charges on which they were presented or other charges such that they were properly processed into the general jail population for continued detention and were subjected to visual body cavity or squat searches prior to being processed into the general jail population.
8. The Fifth Amendment Named Plaintiffs base their claims on the equal protection component of the due process clause of the Fifth Amendment of the United States Constitution, which prohibits treating similarly situated men and women differently based on their gender.
6
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c
9. As used herein, "presentment U refers to the initial proceeding before the Court referred to in Rule 5 of the Superior Court Rules of Criminal Procedure.
10. Violent offense means any of the offenses defined as a "crime of violenceu in D.C. Code § 23-1331(4) as defined under Title 22 of the D.C. Code, misdemeanor simple assault, D.C. Code § 22-404 and misdemeanor threats, D.C. Code § 22-407.
11. Drug offense means any offense under District of Columbia law that has as an element, the possession, possession with intent to distribute, or the distribution of, any substance referred to in D.C. Code § 48-901.02, or any item defined as drug paraphernalia by D.C. Code § 48-1101(3).
12. Traffic offense means any offense prosecuted by the Corporation Counsel's Office of the District of Columbia.
13. Superior 'Court Cell Block as used herein includes not only the lock up behind Superior Court Courtroom C-I0, but also the lock up behind the courtroom where presentments are held for persons arrested on traffic offenses, if strip, squat and visual body cavity searches are held there.
14. The Fourth Amendment Named Plaintiffs bring this action against the Government of the District of Columbia, Todd Dillard in his individual capacity, and Does 1-10, in their individual capacities, pursuant to Section 1983 of the Civil Rights Act of
7

o
1871, 42 U.S.C. § 1983, to enforce their Fourth Amendment Rights. Alternatively, the Fourth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual capacity, and Does 1-10 in their individual capacities, directly under the Fourth Amendment to the Constitution. The Fourth Amendment Named Plaintiffs bring this action against the United States Marshals Service directly under the Fourth Amendment to the Constitution.
15. The Fifth Amendment Named Plaintiffs bring this action against the Government of the District of Columbia, Todd Dillard in his individual capacity, and Does 11-20, in their individual capacities, pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce their Fifth Amendment Rights. Alternatively, the Fifth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual capacity, and John Does 11-20, in their individual capacities, directly under the Fifth Amendment to the Constitution. The Fifth Amendment Named Plaintiffs bring this action against the United States Marshals Service directly under the Fifth Amendment to the Constitution.
JURISDICTION AND VENUE
16. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a) (3) because plaintiffs' claims are based on Section 1983 and the Constitution.
17. Venue is appropriate in this District. The claim for relief arose in this judicial district.
8
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/"',,",\
U
•
Fourth Amendment Class ~ction Allegations
18. The Fourth Amendment 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 each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while being held in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii) (a) a non drug, non violent traffic offense; (iii) (b) a non dreg, non violent misdemeanor; or (iii) (c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.
19. Certification of a class under Federal Rule of Civil Procedure 23(b) (2) is appropriate because defendants District of Columbia and the united States Marshals Service and the other defendants have a policy and engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
20. The class is entitled to injunctive relief of terminating the above described policy of blanket searches not based on individualized or particularized suspicion or probable cause.
9

f<-"../
21. 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.
22. Regarding the Fourth Amendment Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior Court Cell Block is subjected to the blanket searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating such individualized suspicion, such people would, by definition, not be members of the class.
23. Among the questions of law and fact common to the class are:
a. whether Defendant District of Columbia and the United States Marshals Service have a policy, custom and practice of subjecting female arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity searches and/or squat searches without an individualized determination that the woman was in possession of drugs, weapons or other contraband;
10

• b. whether such policy, if found to exist, violates the Fourth Amendment; c. whether the individual defendants were deliberately indifferent to the rights of such women arresteep;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
f. 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.
24. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least many hundreds of people.
25. Every week at least 10 women meeting the Fourth Amendment class definition are held in the Superior Court Cell Block pending presentment and subject to the illegal searches. Thus this class well exceeds 1000 members.
11

!~
~,..,
26. Defendant District of Columbia has within its records the names and addresses of all the current and past class members in the "CIJIIS" computer system (computerized booking program used by District of Columbia Metropolitan Police Department described below) .
27. The Fourth Amendment Named Plaintiffs' claims are typical of the claims of the other members of the class, because the Fourth Amendment Named Plaintiffs and all other members of the class were injured by exactly the same means, that is, by the blanket searches.
28. The Fourth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the 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.
29. The Fourth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
30. The Fourth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Fourth Amendment Class. The class action will be manageable because so many different records systems exist from which to ascertain the members of the putative
12
----------

•

•

(~
\,."",

class. For example, the District of Columbia Metropolitan Police

Department maintains "CIJIIS", a computerized booking system that

captures the name, address, charge, date of charge, date of

presentment and post presentment custody status, for every

arrestee, and the District of Columbia Superior Court maintains

"CIS", a computer database that captures the name, address,

charge, date of charge, date of presentment, docket number and

post presentment custody status disposition for every arrestee.

Class treatment will be superior because liability can be

determined on a class wide basis, and damages can also be

determined on a class wide basis through use of statistical

sampling.

Fifth Amendment Class Action Allegations

31. The Fifth Amendment 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 each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while in the Superior Court Cell Block; (ii) being held for presentment subj ect to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a blanket strip, visual body cavity and/or squat search.

32. Certification of a class under Federal Rule of Civil Procedure 23(b) (2) is appropriate, because defendants District of

13
. ,..

•

•

•

-Columbia and the United States Marshals Service and the other
defendants-have a policy and engage in a pattern and practice of

conduct that has uniformly aff!!,cted,q.ll members of the class, and

injunctive relief against Defendants will benefit each and every

plaintiff and class member.

33. The class is entitled to injunctive relief of terminating the searches.

34. 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.

35. Regarding the Fifth Amendment Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior Court Cell Block is subjected to the blanket searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating such individualized suspicion, such people would, by definition, not be members of the class.

36. Among the questions of law and fact common to the class are:

14

• a. whether Defendant District of Columbia and the United States Marshals Service have a policy or custom and practice of subjecting female arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity and/or squat searches, but not subjecting men arrestees to such searches;
b. whether the policy of strip searching women arrestees serves any legitimate penological interest;
c. whether classification of similarly situated men and women arrestees into classes based on gender bears any relationship to defendants' asserted penological interest;
d. whether such policy, if found to exist, violates the Fifth Amendment;
e. whether the individual defendants were deliberately indifferent to the rights of such women arrestees;
f. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages; and
g. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
15

i"'\ \-...., )

o

h. whether determination of damages sUffered by a statistically representative sample of the class provides the basis for determination of all class members except those who opt out.
37. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least several thousands of people.
38. Every week at least seventy-five women meeting the Fifth Amendment class definition are held in the Superior Court Cell Block pending presentment and sUbject to the illegal searches.
39. The Fifth Amendment Named Plaintiffs' claims are typical of the claims of the other members of the class, because the Fifth Amendment Named Plaintiffs and all other members of the class were injured by exactly the same means, that is, by the blanket searches.
40. The Fifth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the 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.
41. The Fifth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.

16

("'\
V
42. The Fifth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Fifth Amendment Class. The class action will be manageable because so many different records systems exist from which to ascertain the members of the putative class. For example, the District of Columbia Metropolitan Police Department maintains "CIJIIS", a computerized booking system that captures the name, address, charge, date of charge and date of presentment for every arrestee, and the District of Columbia Superior Court maintains "CIS", a computer database that captures the name, address, charge, date of charge, date of presentment, docket number and disposition for every arrestee. Class treatment will be superior because liability can be dete.rmined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
43. Defendant District of Columbia has within its computerized records described above the names and addresses of all the current and past class members.
PARTIES
44. Plaintiff Dianna Johnson is an adult resident of the District of Columbia.
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45. Plaintiff Rubbiya Muhammed is an adult resident of the state
"of Maryland.
46. Plaintiff Carolyn Montgomery is an adult resident of the District of Columbia. 47. Plaintiff Tonya Cecelia Mack is an adult resident of the District of Columbia. 48. Plaintiff Laura Lambert is an adult resident of the state of California. 49. Plaintiff Dianne Wilkes is an adult resident of the Commonwealth of Virginia. 50. Plaintiff Vicki Brooks is an adult resident of the District of Columbia. 51. Plaintiff Keisha Hollaway is an adult resident of the state of Maryland. 52. Plaintiff Donna Curtis is an adult resident of the state of Maryland.
53. Defendant the Government of the District of Columbia (hereinafter the District of Columbia) is a municipal corporation capable of being sued under D.C. Code § 1-102. 54. Defendant United States Marshals Service is an agency of the federal government located in Washington, DC, and is jointly
18

:_c,._\
!~---;
responsible with Defendant District of Columbia for planning and implementing the visual body cavity and squat searches of women arrestees described below in this Complaint. In the context of the facts of this complaint, it operates as an agent of the District of Columbia, as is more fully explained below.
55. Defendant Todd Dillard is the United States Marshal for the Superior Court of the District of Columbia. Marshall Dillard is sued in his individual capacity.
56. Does 1-10 are Deputy United States Marshals .who developed and implemented the current policy complained of by members of the Fourth Amendment Class defined above. Does 1-10 are sued in their individual capacity.
57. Does 11-20 are Deputy United States Marshals who developed and implemented the current policy complained of by members of the Fifth Amendment Class defined above. Does 11-20 are sued in their individual capacity.
FACTUAL ALLEGATIONS
58. Every person who is arrested in the District of Columbia pursuant to a statute or warrant of the District of Columbia and who is taken to the District of Columbia Superior Court for presentment before a judge or other judicial officer of the District of Columbia is held in a designated area of the Superior
19

C)
Court Courthouse called the Superior Court Cell Block pending presentment. 59. Every person held in the Superior Court Cell Block pending presentment who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute is held in the joint custody of the United States Marshal for the Superior Court of the District of Columbia (Todd Dillard) and the Government of the District of Columbia. 60. The Superior Court of the District of Columbia is an agency of the Government of the District of Columbia. 61. Defendant Todd Dillard as the United States Marshal for the Superior Court of the District of Columbia derives his authority over women arrestees in the Superior Court Cell Block pursuant to statutes of the District of Columbia, including D.C. Code §§ 13302, 16-703, 23-501, 23-561, 23-563 and 23-581 and cooperative agreements entered into between the United States Marshals Service and the Government of the District of Columbia pursuant to D.C. Code § 5-133.17. 62. Defendant District of Columbia pays every year for some or all of the costs of operation, maintenance and repair of space used by the United States Marshals Service at the District of Columbia Superior Court Courthouse.
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63. Defendant District of Columbia pays every year for some or all of the costs incurred by the United States Marshals Service in performing their duties at the District of Columbia Superior Court Courthouse.
64. The United States Marshal for the Superior Court and his deputies act as the agents of the Defendant District of Columbia pursuant to District of Columbia statutes, policies and/or practices while holding arrestees in the Superior Court Cell Block.
65. The arrestees in the Superior Court Cell Block have been subjected to pat down searches by the transporting police officers before being transported to the Superior Court Cell Block.
66. Any person who is transported to the Superior Court Cell Block from any of the seven District of Columbia Metropolitan Police Department patrol districts or the District of Columbia Metropolitan Police Department's Central Cell Block has been subjected to a thorough pat down at the patrol station or the District of Columbia Metropolitan Police Department Central Cell Block before being transported to Superior Court Cell Block.
67. The only persons housed in the Superior Court Cell Block are arrestees brought to the Superior Court Courthouse for presentment to a jUdicial officer of the District of Columbia on a charge of violating a District of Columbia statute.
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()

()

~

•

68. The great majority of women arrestees are released directly

from the Superior Court Courthouse after presentment either

because their cases are no-papered or they are released on

personal recognizance. The Fourth and Fifth Amendment classes do

not encompass those who were returned to jail custody because

they had bail set that they were unable to post or were detained

on the charges on which they were presented or other charges such

that they were properly processed into the general jail

population for continued detention and were subjected to visual

body cavity or squat searches prior to being processed into the

general jail population.

69. Many women arrestees arrested on felony charges have their charges ~papered down" to a misdemeanor before presentment.

70. Women and men arrestees who are denied bail and held pending trial are transported in vans and buses from the Superior Court Courthouse to the DC Jail.

71. Other prisoners at the Superior Court Courthouse are not intermingled with the arrestees prior to the search.

72. Men arrestees and women arrestees brought to the Superior Court Courthouse are segregated by sex, and the men and women are held separately in separate areas in the Superior Court Cell Block.

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o
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73. The United States Marshal for the Superior Court, and his deputies, follow a policy and custom of subjecting, upon their admission to the Superior Court Cell Block, all women arrestees to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable quspicion that the woman arrestee is in possession of weapons, drugs or other contraband.
74. Agents of the Marshals Service actually physically conduct the visual body cavity and squat searches of the women arrestees in the Superior Court Cell Block.
75. Agents of the District of Columbia, including the united States Marshal for the Superior Court and his deputies, do not subject men arrestees in the Superior Court Cell Block awaiting presentment to blanket strip, visual body cavity and/or squat searches.
76. The search procedure conducted on the women arrestees in the Superior Court Cell Block is as follows:
77. When women arrestees are transported to the Superior Court Cell Block, a female United States Marshals conducts full body pat down searches on them from head to toe.
78. A female Marshal then makes the women arrestees take off their shoes and shake them out.
23

I::
79. A female Marshal then directs the arrestees to pull up her • skirt or to lower her pants and to pull down any undergarments.
80. A female Marshal then makes the arrestees squat and turn around and display their buttocks and their genitals to the female Marshal.
81. The searches are conducted in front of all the women arrestees already in the Superior Court Cell Block.
82. The searches are public, humiliating, and degrading and cause emotional and psychic injury to the women arrestees.
83. The practice of the searches is not supported by a documented history of contraband smuggling at the Superior Court Cell Block.
84. Other less invasive means of searching the women arrestees exist, such as thorough pat downs, electronic screeners and hand held "wands" or scanners, or drug detection canines.
85. After the Marshals conduct the strip, squat and visual body cavity searches on the women arrestees, the Marshals put the women in the Superior Court Cell Block and allow them to have unsupervised visits with attorneys.
86. The attorneys and the women arrestees are separated only by grills that have 4 inch by 12 inch slots in the grill work for items and paperwork to be passed through.

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_.. - - - - - - - - - - - - - - - -

(~
\J
87. United States Marshals Service employees including Does 1-10 and Does 11-20 participated in making and implementing the policy of subjecting women arrestees to the above-described searches.
88. Defendant District of Columbia employees participated in making and implementing the policy of subjecting women arrestees to the above-described searches and acquiesce in and facilitate the practice.
89. The Government of the District of Columbia knows that women arrestees will be subjected to blanket searches in the Superior Court Cell Block and the Government of the District of Columbia acquiesces in the searches.
90. The Government of the District of Columbia ha5 never protested the searches.
91. The District of Columbia delegated its duties to the United States Marshals Service but failed to train the Marshals in strip search polices even though the need for training was obvious.
92. The constitutional violations that resulted are foreseeable because of the District's failure to train. 93. Every person who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute was arrested by a person acting under color of District of, Columbia law and engaging in state action. D.C. Code § 23-561; D.C. Code § 23-581.
25
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• 94. Every person held in the Superior Court Cell Block pending presentment who has been arrested either on a District of Columbia warrant or on suspicion of violation of a District of Columbia statute is held by a person acting under color of District of Columbia law and engaging in state action.
95. Defendant Todd Dillard, as the United States Marshal for the Superior Court of the District of Columbia, derives his authority over women arrestees in the Superior Court Cell Block pursuant to statutes of the District of Columbia, including D.C. Code §§ 13302, 16-703, 23-501, 23-561, 23-563 and 23-581 and cooperative agreements entered into between the United States Marshals Service and the government of the District of Columbia pursuant to D.C. Code § 5-133.17.
96. At all times described herein Defendant Todd Dillard and Does 1-10 and Does 11-20 were acting under color of District of Columbia law and they were acting pursuant to the policy, custom and practice of Defendant District of Columbia.
NAMED PLAINTIFFS ARRESTED ON TRAFFIC OFFENSES
97. Plaintiff Dianna Johnson was arrested on a charge of driving on a revoked license under D.C. Code § 50-1403.01 by officers of the District of Columbia Metropolitan Police Department.
98. Plaintiff Dianna Johnson was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on January 29, 2002.
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o

•

99. While being held in the Superior Court Cell Block awaiting

presentment, Plaintiff Dianna Johnson was subjected to a strip,

visual body cavity and squat search without a particularized

finding of reasonable suspicion that she was in possession of

weapons, drugs or other contraband.

100. Plaintiff Dianna Johnson was released on personal recognizance directly from the courtroom after presentment on January 29, 2D02.

101. Plaintiff Rubbiya Muhammed was arrested on a bench warrant in connection with a OWl (driving while under the influence of alcohol) case under D.C. Code § 50-2205.02 by officers of the District of Columbia Metropolitan Police Department.

102. Plaintiff Rubbiya Muhammed was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.

103. While being held in the Superior Court Cell Block awaiting presentment, plaintiff Rubbiya Muhammed was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she waB in possession of weapons, drugs or other contraband.

104. Plaintiff Rubbiya Muhammed was released on personal recognizance directly from the courtroom after presentment on October 5, 2002.

27
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NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR SOLICITATION OF PROSTITUTION
105. Plaintiff Carolynn Montgomery was arrested and detained on a charge of solicitation of prostitution under D.C. Code § 22-2701 by officers of the District of Columbia Metropolitan Police Department.
106. Plaintiff Carolynn Montgomery was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
107. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Carolynn Montgomery was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
108. Plaintiff Carolynn Montgomery was released on personal recognizance directly from the courtroom after presentment on October 5, 2002.
NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR CONTEMPT OF COURT
109. Plaintiff Tonya Mack was arrested on a warrant for contempt of court for violations of conditions of release in a solicitation of prostitution case under the D.C. Code by officers of the District of Columbia Metropolitan Police Department.

._------------------------~-

28

110. Plaintiff Tonya Mack was held for presentment before a
•
District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 4, 2002.
111. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Tonya Mack was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
112. Plaintiff Tonya Mack was released on personal recognizance directly from the courtroom after presentment on October 4, 2002.
NAMED PLAINTIFFS ARRESTED ON FIRST DEGREE THEFT
113. Plaintiff Laura Lambert was arrested by officers of the District of Columbia Metropolitan Police Department on a charge of theft of more than $250.00 (shoplifting at Neiman Marcus) under D.C. Code § 22-3211.
114. Plaintiff Laura Lambert was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
115. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Laura Lambert was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
29

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•
116. Plaintiff Laura Lambert's case was "papered down" from
•
felony theft to misdemeanor theft before presentment and she was presented on a charge of misdemeanor theft.
117. Plaintiff Laura Lambert was released on personal recognizance directly from the courtroom after presentment on October 5, 2002.
NAMED PLAINTIFF ARRESTED ON MISDEMEANOR SIMPLE ASSAULT
118. Plaintiff Diane Wilkes was arrested and detained on a charge of misdemeanor simple assault under D.C. Code § 22-404 by officers of the District of Columbia Metropolitan Police Department.
119. Plaintiff Diane Wilkes was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002.
120. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Diane Wilkes was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
121. Plaintiff Diane Wilkes was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
NAMED PLAINTIFFS ARRESTED ON FELONY THREATS
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o
122. Plaintiff Vickie Brooks was arrested on a charge of felony threats under D.C. Code § 22-1810 by a member of the District of Columbia Metropolitan Police Department. 123. Plaintiff Vickie Brooks was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 124. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Vickie Brooks was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 125. Plaintiff Vickie Brooks was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
NAMED PLAINTIFFS ARRESTED ON AGGRAVATED ASSAULT
126. Plaintiff Keisha Holloway was arrested on a charge of aggravated assault under D.C. Code § 22-404.01 by a member of the District of Columbia Metropolitan Police Department. 127. Plaintiff Keisha Holloway was held for presentment before a District of Columbia Superior Court Judge or other jUdicial officer in the Superior Court Cell Block on October 5, 2002.
31

{\,
\--/

,0

128. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Keisha Holloway was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
129. Plaintiff Keisha Holloway was released on personal recognizance directly from the courtroom4' after presentment October 5, 2002.
NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR POSESSION OF PARAPHERNALIA
130. Plaintiff Donna Curtis was arrested on a charge of possession of paraphernalia under D.C. Code § 48-1103 by a member of the District of Columbia Metropolitan Police Department.
131. Plaintiff Donna Curtis was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002.
132. While being held in the Superior Court Cell Block awaiting presentment, Plaintiff Donna Curtis was SUbjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.

32

133. Plaintiff Donna Curtis was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
SUBSTANTIVE ALLEGATIONS
CLAIMS OF FOURTH AMENDMENT NAMED PLAINTIFFS
Count 1 Violation of Fourth Amendment Rights of Fourth Amendment
Plaintiffs under § 1983 134. The Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 135. While being held for presentment in the Superior Court Cell Block each of the Fourth Amendment Named Plaintiffs and every other class member were subjected to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband. 136. Subjecting an arrestee arrested on a non drug, non violent offense to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband violates her Fourth Amendment Rights.
33

o

o

•
137. The Defendants knew that the Fourth Amendment Named

Plaintiffs and other class members would be subject to the

searches in the Superior Court Cell Block and acquiesced in the

searches.

138. Defendants' actions, and failure to act, as described above,
directly and proximately and affirmatively were the moving force
behind the violations of the Fourth Amendment Named Plaintiffs
\
and the class members' Fourth Amendment Rights.

139. Defendant District of Columbia and the United States Marshals Service's policy, custom and practice described above were the moving force behind the deprivations to the Fourth Amendment Named Plaintiffs' and other class members' Fourth Amendment Rights and the Fourth Amendment Named Plaintiffs and the other class members' injuries as described above.

140. Defendants caused the unreasonable strip, visual body cavity search and/or squat searches of the Fourth Amendment Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a policy and practice and custom of strip searching women arrestees.

141. At all relevant times District of Columbia and United States Marshal Service 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 the United States

34

~\ \.-J
"Marshals Service, and such employees were acting in furtherance of the business of the District of Columbia and the United States Marshals Service. 142. Defendant District of Columbia and Defendant Todd Dillard and Does 1-10 are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other class members caused by their conduct.
Count 2 Direct Liability of the United States Marshals Service and Todd Dillard (the United States Marshal for the Superior Court) and
the United States Marshal Service employees Does 1-10 for Violation of Fourth Amendment Rights of Fourth Amendment
Plaintiffs for Illegal Searches 143. The Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint.
144. Each of the Fourth Amendment Named Plaintiffs was arrested by officers of the District of Columbia Metropolitan Police Department under the authority of a District of Columbia statute and held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block and was actually presented before a District of Columbia
35

("""\1
''-./
•
-Superior Court Judge or other judicial officer in a courtroom in the District of Columbia Superior Court.
145. At all times that each of the Fourth Amendment Named Plaintiffs and every other class member was in the Superior Court Cell Block, she was in the joint custody of one or more agents of the Government of the United States and the United States Marshals Service and the District of Columbia.
146. While in the Superior Court Cell Block, each of the Fourth Amendment Named Plaintiffs and every other class member was subjected to a strip, visual body cavity search and/or squat search by an agent of the United States Marshals Service without an individual determination that the search would reveal weapons, drugs or other contraband.
147. Defendant United States Marshals Service and Defendant Todd Dillard and Does 1-10 violated the Fourth Amendment rights of the Fourth Amendment Named Plaintiffs by establishing and implementing the search policies described above.
148. The United States Marshals Service and Defendant Todd Dillard and Does 1-10 are therefore directly liable under the Fourth Amendment for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other class members caused by their conduct.
36

~ ..
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\;
~

c

()

CLAIMS OF FIFTH AMENDMENT NAMED PLAINTIFFS Count 3

Liability of Defendants for Violation of Fifth Amendment Rights of Fifth Amendment Plaintiffs for Illegal Searches under § 1983

149. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint.

150. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other class member were subjected to a visual body cavity search and squat search.

151. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other class member, was similarly situated to every male arrestee.

152. The visual body cavity and squat searches of the women arrestees do not serve any legitimate penological interest.

153. The classification of arrestees into classes based on gender bears no relationship to defendants' asserted penological interest.

154. Defendants knew that the Fifth Amendment Named Plaintiffs and other class members would be SUbject to the above-described searches in the Superior Court Cell Block and acquiesced in the searches.

37
__ - - _ .._ - ~--_.. ._---_. _ .. - - - - - - - - - - - - -

v( \
4155. Defendants' actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Fifth Amendment Named Plaintiffs and the class members' Fifth Amendment Rights.
156. Defendant' District of Columbia and the United states Marshals Service's policy, custom and practice described above were the moving force behind the deprivations to the Fifth Amendment Named Plaintiffs' and other class members' Fifth Amendment Rights.
157. Defendants' actions, and failure to act, as described above, directly and proximately caused, and was the moving force behind the Fifth Amendment Named Plaintiffs and the other class members' injuries as described above.
158. District of Columbia and United States Marshal Service employees caused the unreasonable strip, visual body cavity search and/or squat searches of the Fifth Amendment Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a policy and practice of strip searching women arrestees.
159. At all relevant times such District of Columbia and United States Marshal Service 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 the United
38

o
•
~States Marshals Service, and such employees were acting in
v
furtherance of the business of the District of Columbia and the United States Marshals Service. 160. Defendant District of Columbia and Defendant Todd Dillard and Does 11-20 are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fifth Amendment Named Plaintiffs and all other class members caused by them.
Count 4
Direct Liability of the United States Marshals Service and Todd Dillard and Does 11-20 for Violation of Fifth Amendment Rights of
Fifth Amendment Named Plaintiffs 161. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint.
162. The visual body cavity and squat searches of the women arrestees do not serve any legitimate penological interest.
163. The classification of arrestees into classes based on gender bears no relationship to defendants' asserted penological interest.
164. Defendant United States Marshals Service and Defendant Todd Dillard and Does 11-20 violated the Fifth Amendment rights of the
39

(\
~.
•

~

TFifth Amendment Named Plaintiffs by establishing and implementing

the search policies described above.

165. The United States Marshals Service and Defendant Todd Dillard and Does 11-20 are therefore directly liable under the Fifth Amendment for constitutional injuries to the Fifth Amendment Named Plaintiffs and all other class members caused by their conduct.

IRREPARABLE INJURY AND INJUNCTIVE RELIEF

166. Defendants are unreasonably subjecting members of the subclasses to strip, visual body cavity and/or squat searches, which irreparably harms them, even if they are later able to recover compensatory damages.

167. Defendants' performing illegal searches of the Named Plaintiffs and the class members has irreparably harmed, and will continue to irreparably harm, members of the proposed plaintiff classes, thus making declaratory and injunctive relief necessary.

PRAYER FOR RELIEF

WHEREFORE, the Fourth Amendment Named 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 c1as~ action pursuant to Federal Rule of civil Procedure 23(b) (2) and 23(b) (3)

40

fand certify the Fourth Amendment Named Plaintiffs as the proper
y
representative of the class consisting of each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while being held in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii) (a) a non drug, non violent traffic offense; (iii) (b) a non drug, non violent misdemeanor; or (iii) (c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing' drugs, weapons or other contraband;
3) declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23 (b) (2) and 23 (b) (3) and certify the Fifth Amendment Named plaintiffs as the proper representative of the class consisting of each woman who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (i) while in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subj ected to a strip, visual body cavity search and/or squat search.
41

o
.1(4) declare that defendants' acts alleged above violate the
t
Fourth and Fifth Amendments to the Constitution by illegally strip searching plaintiffs as alleged herein;
5) preliminarily and permanently enjoin defendants from pursuing the course of conduct complained of herein;
6) award all plaintiffs compensatory and consequential damages in an amount to be determined;
7) award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988 and any other applicable statute;
8) grant such other relief as this Court deems just and proper.
tIt~~W~E
D.C. Bar 446579 Counsel for the Named Plaintiffs and the Classes 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fa 202/824- 5
L
D.. Bar # 221598 Counsel for Plaintiffs and the Classes Lynn E. Cunningham Professor of Clinical Law
42

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The George Washington University Law School 2000 G Street, N.W. Washington, D.C. 20052 Phone: (202) 994-7659 Fax: (202) 994-4693
Respectfully submit ed,

LOUlS Kleiman D.C. Bar # 124-933 Counsel for Plaintiffs and the Classes
2055 15th Street Arlington, VA Phone 703~524-3333 Fax 703-525-2222
Respectfully submitted,

Barrett S. Litt, Esq. Motion for pro haec vice admission to be filed after docket number assigned 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
Respectfully submitted,

Paul Estuar, Esq. Motion for pro haec vice admission to be filed after docket number assigned 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585

43

 
 Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 1 of 75

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

Dianna Johnson

)

)

)

Address redacted

)

)

)

and

)

)

Rubbiya Muhammed

)

Address redacted

)

)

)

and

)

)

Carolyn Montgomery

)

Address redacted

)

)

)

and

)

)

Tonya Cecelia Mack

)

Address redacted

)

)

)

and

)

)

Laura Lambert

)

Address redacted

)

)

)

and

)

)

Dianne Wilkes

)

Address redacted

)

)

)

and

)

1

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 2 of 75

)

Vickie Brooks

)

Address redacted

)

)

)

and

)

)

Keisha Holloway

)

Address redacted

)

)

)

and

)

)

Donna Curtis

)

Address redacted

)

)

)

and

)

)

On behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

)

v.

)

)

)

GOVERNMENT OF THE

)

THE DISTRICT OF COLUMBIA,

)

)

Washington, D.C. 20004

)

)

and

)

)

UNITED STATES MARSHALS SERVICE )

)

and

)

)

TODD DILLARD, Individually and Officially )

)

Defendants

)

02-2364 (RMC)

2

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 3 of 75
CLASS ACTION SECOND AMENDED COMPLAINT FOR MONEY DAMAGES AND JURY
DEMAND INTRODUCTION 1. Plaintiffs are persons who were arrested in the District of Columbia and who were taken to the Superior Court for presentment on District of Columbia warrants or code offenses and who were subjected to blanket strip, visual body cavity and/or squat searches (hereafter generically referred to as “strip searches”) while being held in the Superior Court Cell Block of the District of Columbia Superior Court, waiting for presentment before a judge or other judicial officer of the District of Columbia Superior Court. 2. Every person held in the Superior Court Cell Block pending presentment on a code offense or a District of Columbia arrest warrant is held in the joint custody of the United States Marshal for the Superior Court of the District of Columbia (hereafter “Superior Court Marshal”) and the Government of the District of Columbia. 3. Todd Dillard was appointed as the United States Marshal for the Superior Court of the District of Columbia in October 1995 and he held the office until at least January, 2005. 4. Plaintiffs primarily allege that, in about 1995, Todd Dillard implemented a practice of having his deputies subject all female arrestees (but not similarly situated
3

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 4 of 75
male arrestees) taken to the Superior Court for presentment to blanket strip searches (defined below) and the practice lasted during the Class Period. (“Class period” is defined below.) On the basis of these allegations plaintiffs assert two class action claims, a claim based on the Fourth Amendment (“Primary Fourth Amendment Class”) on behalf of all female arrestees arrested on charges not involving weapons, drugs, or felony violence taken to the Superior Court for presentment during the Class Period and a claim based on the equal protection component of the Fifth Amendment (“Fifth Amendment Class”) on behalf of all female arrestees (regardless of charge) taken to the Superior Court for presentment during the Class Period. 5. In the alternative, plaintiffs allege that, prior to the beginning of the Class Period Todd Dillard implemented a practice of having his deputies subject all male arrestees as well as female arrestees (rather than just female arrestees) to blanket strip searches so that from that point onward his deputies subjected all arrestees (male as well as female arrestees) to blanket strip searches. On the basis of these allegations plaintiffs assert a class action claim based on the Fourth Amendment (“Alternative Fourth Amendment Class”) on behalf of all arrestees (male and female) arrested on charges not involving weapons, drugs, or felony violence taken to the Superior Court for presentment during
4

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 5 of 75
1
the Class Period.
6. The Primary Fourth Amendment Named Plaintiffs (Dianna Johnson, Rubbiya
Muhammad, Carolyn Montgomery, Tonya Cecelia Mack and Laura Lambert) bring this
action on behalf of the Primary Fourth Amendment Class against the Government of the
District of Columbia (hereinafter the District of Columbia or the District) and Todd
Dillard in his individual and official capacity pursuant to Section 1983 of the Civil Rights
Act of 1871, 42 U.S.C. § 1983, to enforce their Fourth Amendment Rights. Additionally,
the Fourth Amendment Named Plaintiffs bring this action against Todd Dillard, in his
individual and official capacity, directly under the Fourth Amendment to the
Constitution. The Fourth Amendment Named Plaintiffs bring this action against the
United States Marshals Service for injunctive relief only directly under the Fourth
Amendment to the Constitution.
1 Plaintiffs plead the alternative Fourth Amendment claim and the allegations about strip searches of male arrestees in support of it because this is former Marshal Todd Dillard’s litigating position in this case even though his position is contrary to sworn deposition testimony and interrogatory responses provided by his staff in previous, similar cases. See paragraphs 160 et seq. below. Female deputies testified in depositions in several previous lawsuits (e.g. Helton v. United States, 01-385 (JDB)) filed on February 21, 2001 in this Court that in about 1995 Todd Dillard implemented a practice of subjecting female but not male arrestees to blanket strip searches upon arrival at the Superior Court. Interrogatory responses filed in Helton based on information provided by Mark Shealey, Supervisory Deputy United States Marshal, Supervisor of the Superior Court Cell Block, and others, and signed by Diane Sullivan, AUSA, stated that the then prevailing practice at Superior Court was that male deputies subjected every male arrestees received by Todd Dillard’s deputies at Superior Court to the blanket pat down and “in-custody” searches described herein, and that if “something suspicious” occurred male arrestees were set aside for “a more thorough search.” Nonetheless, former Superior Court Marshal Todd Dillard’s position in this case, as far as plaintiffs can understand it, is that he had the same strip search policy for male as well as female arrestees. Id.
5

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 6 of 75
7. The Fifth Amendment Named Plaintiffs (Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tonya Cecelia Mack, Laura Lambert, Dianne Wilkes, Vickie Brooks, Keisha Holloway and Donna Curtis) bring this action against the Government of the District of Columbia and Todd Dillard in his individual and official capacity pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce their Fifth Amendment Rights. Additionally, the Fifth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual and official capacity, directly under the Fifth Amendment to the Constitution. The Fifth Amendment Named Plaintiffs bring this action against the United States Marshals Service solely for injunctive relief directly under the Fifth Amendment to the Constitution.
8. The Alternative Fourth Amendment Named Plaintiffs (Dianna Johnson, Rubbiya Muhammad, Carolyn Montgomery, Tonya Cecelia Mack and Laura Lambert) bring this action on behalf of the Alternative Fourth Amendment Class against the Government of the District of Columbia and Todd Dillard in his individual and official capacity pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enforce their Fourth Amendment Rights. Additionally, the Alternative Fourth Amendment Named Plaintiffs bring this action against Todd Dillard, in his individual and official capacity, directly under the Fourth Amendment to the Constitution. The Alternative Fourth Amendment Named Plaintiffs bring this action against the United States Marshals Service for injunctive relief only directly under the Fourth Amendment to the Constitution.
6

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 7 of 75
JURISDICTION AND VENUE 9. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) because plaintiffs’ claims are based on Section 1983 and the Constitution. 10. Venue is appropriate in this District. The claim for relief arose in this judicial district.
DEFINITIONS 11. A “blanket” strip search means a strip search undertaken without making an individualized or categorical determination that reasonable suspicion exists to justify the search. 12. Since at least January 1999 through the present many arrestees arrested on felony charges had their charges “papered down” to a misdemeanor before presentment. 13. As used herein, “presentment” refers to the initial proceeding before the Court referred to in Rule 5 of the Superior Court Rules of Criminal Procedure. 14. Violent offense means any of the offenses defined as a “crime of violence” in D.C. Code § 23-1331(4) as defined under Title 22 of the D.C. Code, misdemeanor simple assault, D.C. Code § 22-404 and misdemeanor threats, D.C. Code § 22-407. 15. Drug offense means any offense under District of Columbia law that has as an element, the possession, possession with intent to distribute, or the distribution of, any
7

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 8 of 75
substance referred to in D.C. Code § 48-901.02, or any item defined as drug paraphernalia by D.C. Code § 48-1101(3). 16. Traffic and District of Columbia offenses mean any offense prosecuted by the Corporation Counsel’s Office of the District of Columbia. 17. Superior Court Cell Block as used herein includes the hallway leading to the Superior Court Cell Block and any place in the Superior Court where the searches described herein actually occurred. 18. The United States Marshal for the Superior Court of the District of Columbia has deputies and detention enforcement officers and other persons under his command to help him in his duties at the Superior Court. Such persons are referred to herein as “deputies.” 19. As used herein “arrestees” includes both male and female arrestees unless otherwise indicated. 20. As used herein “Class Period” refers to the Class Period for purposes of the damages claims herein, and means from December 2, 1999, until the date the strip search policies and practices complained of herein were terminated (which the federal defendants have represented happened in April 2003 but which Plaintiffs have not yet independently verified), or until this case is terminated, whichever is earlier). The phrase “Class Period” applies to both the Primary Fourth Amendment and the Fifth Amendment Classes and to the Alternative Fourth Amendment Class, as the relevant period for each
8

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 9 of 75
is, according to the Defendants, the same. If it turns out that the Class Period for the Primary Fourth Amendment Class and the Fifth Amendment Class differs from the Class Period for the Alternative Fourth Amendment Class, then the phrase “Class Period” as used up to and including ¶ 240 refers to the period from December 2, 1999, until the strip search policies and practices complained of herein were terminated as to female arrestees, and the phrase “Class Period” as used from ¶ 241 onward refers to the period from December 2, 1999, until the strip search policies and practices complained of herein were terminated as to both female and male arrestees. 21. If Plaintiffs are referring specifically to the Class Period for purposes of the injunctive relief claims herein, the phrase “Injunctive Relief Class Period” will be used, which refers to the period December 2, 1999 until the present and into the future unless the Court acts to enjoin the unlawful activity complained of herein.
PARTIES-PLAINTIFFS 22. Plaintiffs (all adults) are Dianna Johnson, Rubbiya Muhammed, Carolyn Montgomery, Tonya Cecelia Mack, Laura Lambert, Dianne Wilkes, Vicki Brooks, Keisha Hollaway and Donna Curtis. NAMED PLAINTIFFS ARRESTED ON TRAFFIC OFFENSES 23. Plaintiff Dianna Johnson was arrested on a charge of driving on a revoked license under D.C. Code § 50-1403.01 by officers of the District of Columbia Metropolitan Police Department (“MPD”).
9

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 10 of 75
24. Plaintiff Dianna Johnson was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on January 29, 2002. 25. Upon arriving at the Superior Court for presentment, Plaintiff Dianna Johnson was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 26. Plaintiff Dianna Johnson was released on personal recognizance directly from the courtroom after presentment on January 29, 2002. 27. Plaintiff Rubbiya Muhammed was arrested on a bench warrant in connection with a DWI (driving while under the influence of alcohol) case under D.C. Code § 50-2205.02 by officers of the District of Columbia Metropolitan Police Department. 28. Plaintiff Rubbiya Muhammed was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002. 29. Upon arriving at the Superior Court for presentment, Plaintiff Rubbiya Muhammed was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband.
10

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 11 of 75
30. Plaintiff Rubbiya Muhammed was released on personal recognizance directly from the courtroom after presentment on October 5, 2002. NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR SOLICITATION OF PROSTITUTION 31. Plaintiff Carolynn Montgomery was arrested and detained on a charge of solicitation of prostitution under D.C. Code § 22-2701 by officers of the District of Columbia Metropolitan Police Department. 32. Plaintiff Carolynn Montgomery was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002. 33. Upon arriving at the Superior Court for presentment, Plaintiff Carolynn Montgomery was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 34. Plaintiff Carolynn Montgomery was released on personal recognizance directly from the courtroom after presentment on October 5, 2002. NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR CONTEMPT OF COURT 35. Plaintiff Tonya Mack was arrested on a warrant for contempt of court for violations of conditions of release in a solicitation of prostitution case under the D.C. Code by officers of the District of Columbia Metropolitan Police Department.
11

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 12 of 75
36. Plaintiff Tonya Mack was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 4, 2002. 37. Upon arriving at the Superior Court for presentment, Plaintiff Tonya Mack was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 38. Plaintiff Tonya Mack was released on personal recognizance directly from the courtroom after presentment on October 4, 2002. 39. Several weeks later Ms. Mack was alleged to have missed a court date and a bench warrant issued for her arrest. NAMED PLAINTIFFS ARRESTED ON FIRST DEGREE THEFT 40. Plaintiff Laura Lambert was arrested by officers of the District of Columbia Metropolitan Police Department on a charge of theft of more than $250.00 (shoplifting at Neiman Marcus) under D.C. Code § 22-3211. 41. Plaintiff Laura Lambert was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002. 42. Upon arriving at the Superior Court for presentment, Plaintiff Laura Lambert was subjected to a strip, visual body cavity and squat search without a particularized finding
12

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 13 of 75
of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 43. Plaintiff Laura Lambert’s case was “papered down” from felony theft to misdemeanor theft before presentment and she was presented on a charge of misdemeanor theft. 44. Plaintiff Laura Lambert was released on personal recognizance directly from the courtroom after presentment on October 5, 2002. NAMED PLAINTIFF ARRESTED ON MISDEMEANOR SIMPLE ASSAULT 45. Plaintiff Diane Wilkes was arrested and detained on a charge of misdemeanor simple assault under D.C. Code § 22-404 by officers of the District of Columbia Metropolitan Police Department. 46. Plaintiff Diane Wilkes was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 47. Upon arriving at the Superior Court for presentment, Plaintiff Diane Wilkes was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 48. Plaintiff Diane Wilkes was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
13

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 14 of 75
NAMED PLAINTIFFS ARRESTED ON FELONY THREATS 49. Plaintiff Vickie Brooks was arrested on a charge of felony threats under D.C. Code § 22-1810 by a member of the District of Columbia Metropolitan Police Department. 50. Plaintiff Vickie Brooks was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 51. Upon arriving at the Superior Court for presentment, Plaintiff Vickie Brooks was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 52. Plaintiff Vickie Brooks was released on personal recognizance directly from the courtroom after presentment September 25, 2002. NAMED PLAINTIFFS ARRESTED ON AGGRAVATED ASSAULT 53. Plaintiff Keisha Holloway was arrested on a charge of aggravated assault under D.C. Code § 22-404.01 by a member of the District of Columbia Metropolitan Police Department. 54. Plaintiff Keisha Holloway was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on October 5, 2002.
14

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 15 of 75
55. Upon arriving at the Superior Court for presentment, Plaintiff Keisha Holloway was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 56. Plaintiff Keisha Holloway was released on personal recognizance directly from the courtroom after presentment October 5, 2002. NAMED PLAINTIFFS ARRESTED ON MISDEMEANOR POSESSION OF PARAPHERNALIA 57. Plaintiff Donna Curtis was arrested on a charge of possession of paraphernalia under D.C. Code § 48-1103 by a member of the District of Columbia Metropolitan Police Department. 58. Plaintiff Donna Curtis was held for presentment before a District of Columbia Superior Court Judge or other judicial officer in the Superior Court Cell Block on September 25, 2002. 59. Upon arriving at the Superior Court for presentment, Plaintiff Donna Curtis was subjected to a strip, visual body cavity and squat search without a particularized finding of reasonable suspicion that she was in possession of weapons, drugs or other contraband. 60. Plaintiff Donna Curtis was released on personal recognizance directly from the courtroom after presentment September 25, 2002.
15

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 16 of 75
PARTIES-DEFENDANTS 61. Defendant Government of the District of Columbia is a municipal corporation capable of being sued under D.C. Code § 1-102. 62. Defendant Todd Dillard was the United States Marshal for the Superior Court of the District of Columbia from October 1990 until at least January 2005. Todd Dillard is sued in his individual and official capacity. 63. Defendant United States Marshals Service is an agency of the federal government located in Washington, DC. Defendant United States Marshals Service is sued for injunctive relief only.
FACTUAL ALLEGATIONS RELATIONSHIP BETWEEN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA AND THE UNITED STATES MARSHAL FOR THE SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA 64. The District of Columbia is a government constituted body corporate for municipal purposes capable of suing and being sued. D.C. Code §1-102. 65. The District of Columbia, through the Superior Court, has jurisdiction and legal custody over arrestees brought to the Superior Court for presentment. 66. The Superior Court of the District of Columbia is an agency of the Government of the District of Columbia.
16

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 17 of 75
67. The District of Columbia, through the Superior Court, has custody over arrestees because of Superior Court Rule of Criminal Procedure Rule 5 (“D.C. SCR-Crim. Rule 5”). 68. Rule 5 obligates any “officer within the District of Columbia making an arrest under a warrant issued by the Superior Court upon a complaint, making an arrest without a warrant, or receiving a person arrested by a special policeman or other authorized person” to take the arrested person before the Superior Court. D.C. SCR-Crim. 69. Rule 5 also authorizes the Superior Court to hold presentments, and to make probable cause determinations and decisions affecting release or detention. 70. The judicial officers of the Superior Court have power to release or detain arrestees pending trial, pursuant to D.C. Code §23-1321. 71. Thus, while the arrestees are at the Superior Court for presentment, the statutory authority over arrestees is authority granted by District of Columbia statutes to the judges of the Superior Court. 72. Every person held in the Superior Court pending presentment is held in the joint custody of the United States Marshal for the Superior Court of the District of Columbia (formerly Todd Dillard) and the Government of the District of Columbia. 73. The Chief Judge of the District of Columbia Superior Court (hereafter “Chief Judge”) administratively controls the disposition of the space at the District of Columbia Superior Court, including areas where arrestees and other prisoners are held.
17

Case 1:02-cv-02364-RMC Document 84-2 Filed 12/05/2006 Page 18 of 75
74. For example, by Superior Court Administrative Order 02-14, the Chief Judge authorized the MPD to use Cellblock B as a booking center the day of the IMF protests in 2002. 75. On information and belief, Defendant District of Columbia pays every year for some or all of the costs of operation, maintenance and repair of space used by the United States Marshal for the Superior Court of the District of Columbia at the District of Columbia Superior Court Courthouse. 76. On information and belief, Defendant District of Columbia pays every year for some or all of the costs incurred by the United States Marshal for the Superior Court of the District of Columbia and his deputies in performing their duties at the District of Columbia Superior Court Courthouse. 77. The District of Columbia through the Chief Judge also administratively controls the prisoners (including arrestees) in the Superior Court courthouse. 78. The District of Columbia has the authority to direct the United States Marshal for the Superior Court of the District of Columbia with respect to his treatment of arrestees at the Superior Court. D.C. Code § 11-1729. 79. The Chief Judge in 2002 issued an administrative order ordering deputies not to remove in-custody defendants from the Superior Court courtrooms until after the judges and courtroom staff had completed appropriate paperwork, and further ordering said deputies not to return in-custody defendants to the DC Jail unless the deputies had all the
18

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paperwork in all of in-custody defendant’s cases. Chief Judge’s Administrative Order 02-22, dated July 25, 2002. 80. The Superior Court Marshal and his deputies act as agents of the Defendant District of Columbia pursuant to District of Columbia statutes, policies and/or practices while holding arrestees in the Superior Court Cell Block and other areas of the Superior Court Courthouse.
ARRESTEES: FROM ARREST TO PRESENTMENT 81. Upon arrest, persons arrested in the District of Columbia on District of Columbia warrants or DC Code offenses are held at one of the seven District “stations” before transport to Central Cellblock (the District of Columbia Metropolitan Police lock-up for holding arrestees) or are taken directly to Central Cellblock. 82. The arrestees in the Superior Court Cell Block have been subjected to pat down searches by the arresting MPD officers and by the processing officers at the stations before being transported to the Superior Court Cell Block by the MPD. 83. Arrestees in the Superior Court Cell Block arrested on suspicion of offenses involving drugs in many cases have been subjected to searches by the arresting MPD officers in which the officers search inside the person’s pants and underwear before being transported to the Superior Court Cell Block by the MPD.
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84. The arrestees in the Superior Court Cell Block have been subjected to pat down searches by the transporting MPD officers before being transported to the Superior Court Cell Block by the MPD. 85. Any arrestee who is transported to the Superior Court Cell Block from any of the seven District of Columbia Metropolitan Police Department patrol districts or the District of Columbia Metropolitan Police Department’s Central Cell Block has been subjected to a thorough pat down at the patrol station or the MPD Central Cell Block before being transported to Superior Court Cell Block. 86. During the Class Period, including the Injunctive Relief Class Period, the MPD had a policy and practice predating 1999 of subjecting male and female arrestees held in Central Cell Block to strip searches upon reasonable suspicion that the arrestee was carrying drugs, weapons or other contraband before transporting them to the Superior Court courthouse. 87. During the Class Period, including the Injunctive Relief Class Period, MPD officers transported the arrestees from the District stations or the MPD Central Cellblock by van to the Superior Court. 88. During the Class Period, including the Injunctive Relief Class Period, each arrestee also wore “flex cuffs,” that is, plastic hand cuffs while on the van. 89. During the Class Period, including the Injunctive Relief Class Period, each van load of arrestees transported to Superior Court by the MPD had a “van sheet,” that is, a
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manifest that lists the name, PDID number, lock-up number (every person presented in Superior Court has a “lock-up” number), date of birth and arrest charge(s) of each passenger on the van. 90. During the Class Period, including the Injunctive Relief Class Period, each arrestee arriving from the MPD wore a plastic wrist band that has his/her name, PDID number and photograph on it. 91. Thus, deputies receiving arrestees from MPD officers could and did read an arrestee’s charge at a glance. 92. During the Class Period, including the Injunctive Relief Class Period, as arrestees stepped off the van and entered the Superior Court courthouse, they went up in an elevator, stepped off the elevator in a cell area, and deputies cut off the flex cuffs, and then the arrestees walked through a metal detector. 93. During the Class Period, including the Injunctive Relief Class Period, as the arrestees walked past the metal detector, one deputy would read out each name on the van sheet and the number next to it, while another deputy would locate that arrestee and write that number, the “lock up” number, on that arrestee’s wrist band if he/she had a US charge, or, if the person had a DC charge, the deputy wrote a letter on the wrist band designating the type of charge, as explained in the following paragraph. 94. During the Class Period, including the Injunctive Relief Class Period, the deputies marked, in black marker, the level of the charge on the wrist band each arrestee had been
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issued by the MPD (“D” for District charge, “T” for traffic charge, “V” for domestic violence, “M” for misdemeanor and “F” for felony). 95. Any deputy who wrote, or saw, a “T” or a “D” on a wrist band would or should know that the arrestee is charged with a District of Columbia offense. 96. District of Columbia offenses are mostly minor offenses such as failure to obey, disorderly conduct, urinating in public. 97. Traffic offenses involve operation of a motor vehicle including speeding, reckless driving, driving without a license and DUI. 98. During the Class Period, including the Injunctive Relief Class Period, the searching deputies could have looked at the van sheets or the wrist bands to make individualized determinations of the need for searches based on the nature of the charge, but they did not. 99. During the Class Period, including the Injunctive Relief Class Period, the deputies then subjected the arrestees to very thorough pat-down searches in which the deputies checked the arrestees’ hair, wig, hairpiece or hat, and removed and inspected their coats and shoes. 100. During the Class Period, including the Injunctive Relief Class Period, the deputies also searched arrestees’ waistband areas, pockets, leg areas, and feet.
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101. During the Class Period, including the Injunctive Relief Class Period, the deputies also made the arrestees take off their shoes and socks, shake out their shoes, and deputies searched the shoes and socks. 102. During the Class Period, including the Injunctive Relief Class Period, the deputies also made arrestees vigorously brush their hair to dislodge contraband, or a deputy ran his fingers or an object such as a pencil through their hair. 103. During the Class Period, including the Injunctive Relief Class Period, a deputy then inspected behind the ears and in the arrestees’ ears, and looked inside their nostrils and mouths, including under the tongue and between the lips and gums. 104. During the Class Period, including the Injunctive Relief Class Period, deputies also conducted a thorough pat-down of the arrestees’ bodies, including the crotch and other areas. 105. During the Class Period, including the Injunctive Relief Class Period, at this point in the process, male and female arrestees were led to separate areas segregated by gender. 106. However plaintiffs do not allege that male deputies searched female arrestees or vice versa, or that members of an opposite gender were allowed to see strip searches. 107. The great majority of arrestees during the Class Period, including the Injunctive Relief Class Period, were released from custody after presentment in the presentment courtroom, either because their cases were no-papered, or because they were released on personal recognizance.
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108. During the Class Period, including the Injunctive Relief Class Period, twenty-five percent to 35% of arrestees’ cases were “no-papered”; i.e., their cases were dismissed from the courtroom because the prosecuting agency rejected the charges completely. 109. During the Class Period, including the Injunctive Relief Class Period, many persons arrested on felony charges had their charges “papered down” to a misdemeanor before presentment. 110. During the Class Period, including the Injunctive Relief Class Period, the searching deputies knew at the time of the searches that some of the cases would be nopapered. 111. During the Class Period, including the Injunctive Relief Class Period, arrestees held at the Superior Court awaiting presentment there were quarantined from other persons held at the Superior Court in segregated holding cells. 112. During the Class Period, including the Injunctive Relief Class Period, other prisoners at the Superior Court Courthouse, including arrestees denied bail at presentment and ordered held at the DC Jail or some other place, and detainees held pending trial brought in for court events or “stepped-back” at court hearings, were not intermingled with pre-presentment arrestees in the courthouse or during transport prior to presentment. 113. During the Class Period, including the Injunctive Relief Class Period, arrestees were quarantined by sex in their own cells.
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114. During the Class Period, including the Injunctive Relief Class Period, there was no “general population” at the Superior Court Cell Block. 115. During the Class Period, including the Injunctive Relief Class Period, no prisoner or arrestee stayed overnight at the Superior Court Cell Block. 116. During the Class Period, including the Injunctive Relief Class Period, prisoners, including arrestees, were bussed into the Superior Court Cell Block in the morning and left that same day whether by release at the courthouse or by transport out to another facility. 117. During the Class Period, including the Injunctive Relief Class Period, arrestees were brought to the Superior Court the day of presentment in their cases and were either released directly from the courtroom or transported that day to another facility. 118. During the Class Period, including the Injunctive Relief Class Period, the only persons housed in the Superior Court Cell Block designated for arrestees were arrestees brought to the Superior Court Courthouse for presentment to a judicial officer of the District of Columbia who had not yet been presented. 119. During the Class Period, including the Injunctive Relief Class Period, arrestees did not even receive meals or beverages at the Superior Court. 120. During the Class Period, including the Injunctive Relief Class Period, at presentment, a judge of the Superior Court ordered a person released or held pending trial.
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121. During the Class Period, including the Injunctive Relief Class Period, arrestees ordered released at presentment left from the courtroom and picked up their property from the police facility where they were processed. 122. During the Class Period, including the Injunctive Relief Class Period, arrestees ordered held at presentment were taken from the courtroom by deputies and removed from the courthouse by deputies or handed off to custody of the detaining authority. 123. During the Class Period, including the Injunctive Relief Class Period, persons arrested on bench warrants were taken by the deputies to another courtroom (e.g., the courtroom of the judge who issued the bench warrant). 124. During the Class Period, including the Injunctive Relief Class Period, such arrestees remaining in custody after presentment were not intermingled with arrestees awaiting presentment. 125. During the Class Period, including the Injunctive Relief Class Period, arrestees brought to the Superior Court Courthouse were segregated by sex, and the males and females arrestees are held separately in separate areas in the Superior Court Cell Block. STRIP SEARCH PRACTICES APPLICABLE TO FEMALE ARRESTEES ONLY 126. Sometime in 1995 Todd Dillard implemented a practice or policy of having female deputies subject all female arrestees to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the female arrestees are in possession of weapons, drugs or other contraband.
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127. This practice of having female deputies subject all female arrestees to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the female arrestees were in possession of weapons, drugs or other contraband violated the United States Marshals’ Service strip search policy in force agency-wide during the Class Period, including the Injunctive Relief Class Period. 128. The United States Marshals’ Service strip search policy, memorialized in writing and in force agency-wide during the Class Period, including the Injunctive Relief Class Period, required that all strip searches be based on an individualized finding of reasonable suspicion that the person to be searched was secreting drugs or other contraband. A copy is attached hereto and incorporated herein by reference. 129. Todd Dillard’s deputies actually physically conducted the visual body cavity and squat searches of the female arrestees at his direction in a hallway on the way to the Superior Court Cell Block or in the Superior Court Cell Block. 130. During the Class Period, including the Injunctive Relief Class Period, deputies subjected every single female arrestee to the strip searches described herein without exception and regardless of charge or arrest history. 131. During the Class Period, including the Injunctive Relief Class Period, Todd Dillard’s deputies instructed deputies newly assigned to the Superior Court to conduct the blanket strip searches on all women as part of the new deputies’ two day training program.
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132. During the Class Period, after the thorough pat down searches and the “incustody” searches female deputies then took the female arrestees to the cell block area designated for female arrestees and subjected them to blanket strip, visual body cavity and/or squat searches in the hallway leading to the Superior Court Cell Block or in the Cell Block or in the door way of the Cell Block itself. 133. During the Class Period, including the Injunctive Relief Class Period, a female deputy directed the female arrestees to pull up their skirts or lower their pants, and pull down any undergarments. 134. During the Class Period, including the Injunctive Relief Class Period, a female deputy then made the female arrestees squat, turn around, and display their buttocks and genitals to the female deputy. 135. During the Class Period, including the Injunctive Relief Class Period, the female deputies stood just a few feet away from the female arrestees as they performed the strip searches and made a point of observing the female’s genitalia and anus areas. 136. During the Class Period, including the Injunctive Relief Class Period, the female deputies did not place mirrors underneath the female arrestees as they squatted. 137. Forcing a woman to squat is not an effective method of making contraband hidden in her vagina visible.
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138. During the Class Period, including the Injunctive Relief Class Period, female
deputies then put the female arrestees in a holding cell designated for new female lock
ups measuring about 30 to 50 feet.
139. During the Class Period, including the Injunctive Relief Class Period, the female
deputies conducted the strip searches of newly arrived female arrestees in front of all
female arrestees already in the hallway leading from the reception area to the Superior
Court Cell Block, or in the Cell Block.
140. One female arrestee subjected to the strip search in about 2002 described it as
follows:
We four women then walked into the cell one by one in single file. The lead woman walked towards the back of the cell where a toilet was, facing the back of the cell, and pulled her pants and underwear down, and crouched down in a half squat, displaying her buttocks to the female Marshal. The female Marshal told the second girl in line, “Face the wall.” Then the second and third woman also walked towards the back of the cell where the toilet was, facing the back of the cell, and pulled their pants and underwear down, and crouched down in a half squat, displaying their buttocks to the female Marshal. The female Marshal was screaming, “Keep moving, ladies.” The other inmates were telling me I had to strip too. “This is what you have to do when you get here”, they said. I turned to the female Marshal, and asked the female Marshal, “I don’t have to do that, do I”? She screamed several times at me, “Keep moving, I don’t have all day.” Then she barked at me, “Go to the end and do it.” Then I walked to the back to the wall, turned around, pulled down my pants, and then I pulled down my underwear. It seemed like an eternity. All the other inmates applauded.
141. During the Class Period, including the Injunctive Relief Class Period, after the
deputies had completed processing and strip searching female arrestees as described
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herein, but before they presented female arrestees in the presentment courtrooms, they allowed female arrestees to have unsupervised contact visits with their attorneys in conference cells. 142. During the Class Period, including the Injunctive Relief Class Period, the attorneys and the female arrestees in the conference cells were separated only by grills that have 4 inch by 12 inch slots in the grill-work for items and paperwork to be passed through. 143. During the Class Period, including the Injunctive Relief Class Period, no female arrestees were subjected to strip searches after the contact visits even though female arrestees were subjected to strip searches described herein before the contact visits. 144. During the Class Period, including the Injunctive Relief Class Period, the contact visits with attorneys were not the justification for any of the searches of female arrestees described herein. 145. During the Class Period, including the Injunctive Relief Class Period,, agents of the District of Columbia such as police and pretrial services employees and CJA Office employees conducting financial eligibility interviews regularly mingled at the Superior Court courthouse with the Superior Court Marshals and arrestees, and knew about the searches at all times within the Class Period, including the Injunctive Relief Class Period,
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146. The MPD transport officers mingled with Todd Dillard’s deputies near the sally port and were aware of the strip searches of female arrestees during the Class Period including the Injunctive Relief Class Period. District Court Injunctions Applicable to the District of Columbia and to the Female
Arrestees 147. In the 1980s and the early 1990s, before instituting its current practice of holding female arrestees at the District stations or Central Cellblock before bringing them to the Superior Court for presentment, the District followed a practice of committing female arrestees to the DC Jail and holding them there until they were transported to the Superior Court for presentment. 148. At that time (in the 1980s and the early 1990s) the District followed a practice of subjecting all female arrestees committed to the DC Jail awaiting transport to the courthouse for presentment (“police cases”) to visual body cavity strip searches without an individual determination of reasonable suspicion that the arrestee was concealing contraband to support the search. 149. On July 22, 1981 The Honorable Audrey Robinson of this Court entered on Order (“Morgan Order”) which directed, among other things, that the District of Columbia not conduct strip or squat searches of female police cases housed at the District of Columbia Detention Facility [DC Jail] in the absence of a "reasonable suspicion that a weapon, contraband or evidence of a crime are concealed on the person or in the clothing of the
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arrestee which the District or its agents reasonably believe can only be discovered by a strip or squat search." Morgan v. Barry, 596 F. Supp. 897, 898 (D.D.C. 1984). 150. The Honorable Audrey Robinson entered an Order on October 29, 1985 continuing the Morgan Order (and another order) “for an indefinite period of time”. Morgan v. Barry, 81-cv-1419, Docket Entry No. 82, 1985 (docket sheet). The orders remain in effect. 151. The Morgan Order and other orders imposed on the District of Columbia from the time when they were entered obliged the District of Columbia to protect female arrestees from blanket strip searches before presentment regardless of where the female arrestees are held before presentment. 152. The Morgan Order and other orders from the time when they were entered imposed on the District of Columbia obliged the District of Columbia to ensure that anyone to whom the District of Columbia entrusted its female arrestees also protect the District’s female arrestees from blanket strip searches before presentment regardless of where the female arrestees are held before presentment. 153. The Morgan Order and other orders from the time when they were entered obliged the District of Columbia to monitor the conduct of persons to whom the District of Columbia entrusts its female arrestees to ensure they were protected from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment.
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154. The District of Columbia remained and remains obligated under the Morgan Order and other orders to ensure that Todd Dillard protect the female arrestees from blanket strip searches while the United States Marshal for the Superior Court of the District of Columbia and his deputies have physical custody of the District’s female arrestees prior to presentment.
155. The Morgan Order and other orders impose on the Superior Court Marshal and his deputies a duty to familiarize themselves with laws and orders which protect the District’s female arrestees from blanket strip searches before presentment regardless of where the female arrestees are committed before presentment.
KNOWLEDGE OF THE DISTRICT OF COLUMBIA OF THE STRIP SEARCHES APPLICABLE TO FEMALE ARRESTEES
156. During the Class Period, including the Injunctive Relief Class Period, female arrestees but not similarly situated male arrestees were subjected to blanket searches in the Superior Court Cell Block. The Government of the District of Columbia knew at all times during the Class Period, or should have known, that female arrestees but not similarly situated male arrestees were and would be subjected to blanket searches in the Superior Court Cell Block and the Government of the District of Columbia acquiesced in the searches.
157. Several related lawsuits filed on February 21, 2001, challenging the United States Marshal for the Superior Court of the District of Columbia’s policy of subjecting all female arrestees (but not male arrestees) to the blanket strip searches plaintiffs challenged
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herein gave constructive notice to the District that the United States Marshal for the Superior Court of the District of Columbia was subjecting all female arrestees (but not male arrestees) to blanket strip searches. E.g. Helton v. United States, 01-385 (JDB). 158. Female deputies testified in depositions in those cases that in about 1995 Todd Dillard implemented a practice of subjecting female but not male arrestees to blanket strip searches upon arrival that the Superior Court. 159. Female deputies testified in depositions in those cases that they were trained in that policy upon their assignment to Superior Court. 160. Interrogatory responses filed in Helton based on information provided by Mark Shealey, Supervisory Deputy United States Marshal, Supervisor of the Superior Court Cell Block, and others, and signed by Diane Sullivan, AUSA, stated that the then prevailing practice at Superior Court was that male deputies subjected every male arrestees received by Todd Dillard’s deputies at Superior Court to blanket to the pat down and “in-custody” searches described herein, and that if “something suspicious” occurred male arrestees were set aside for “a more thorough search.” 161. The Government of the District of Columbia knowingly, and as part of its practice, policy, and custom, nonetheless transferred female arrestees in its custody to the custody of Todd Dillard (then United States Marshal for the Superior Court of the District of Columbia), causing each member of the Classes to be subjected to the strip searches.
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162. The District of Columbia delegated its duties to Todd Dillard but failed to train Todd Dillard in strip search polices even though the need for training was obvious. 163. The constitutional violations that resulted were foreseeable because of the District’s failure to train.
STEPS DISTRICT OF COLUMBIA COULD HAVE TAKEN TO PREVENT STRIP SEARCHES BUT DID NOT
164. The District of Columbia could have taken many steps to stop the strip searches of the female arrestees described herein but did not take any steps. 165. The District of Columbia could have instructed Todd Dillard to stop the strip searches of the female arrestees described herein but did not. 166. The Chief Judge of the District of Columbia could have issued an administrative order prohibiting the strip searches described herein but did not. 167. The Chief Judge of the District of Columbia or the District of Columbia could have ordered other agents of the District of Columbia such as police officers to handle arrestees at the Superior Court without the strip searches described herein but did not. 168. The District of Columbia could have asked the Chief Judge of the District of Columbia to issue an administrative order stopping the strip searches of female arrestees described herein but did not.
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169. The District of Columbia could have brought a lawsuit like this one seeking to enjoin the strip searches of female arrestees described herein but did not. 170. The District could have joined this lawsuit with respect to the injunctive relief component but did not. 171. The District of Columbia currently and since at least 1998 had a process for disposing of arrestees’ cases before bringing them to the Superior Court by (for example) granting them bail from a District station or the MPD Central Cell Block, allowing release on citation or personal recognizance, . 172. The District could have instituted a “night” court so that more arrestees arrested on minor offenses had their cases disposed of without necessitating a transfer to the custody of the United States Marshal for the Superior Court of the District of Columbia at the Superior Court. 173. The District either did or alternatively could have communicated the strip search policies in effect at the MPD Central Cell Block to the United States Marshal for the Superior Court of the District of Columbia so he could have known which arrestees transported to him by the MPD had already been strip searched. 174. The District could have held presentments in the MPD Cell Block or another location as it has on other occasions. 175. The District could have maintained physical custody of the arrestees and presented them to Superior Court judicial officers via video camera.
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176. The District of Columbia could have taken other steps but it did not.
Primary Fourth Amendment Class Action Allegations
177. The Primary Fourth Amendment Named Plaintiffs bring this action under Rules 23(a), and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each woman who, during the Class Period (December 2, 1999, until the date the strip search policies and practices complained of herein were terminated or until this case is terminated, whichever is earlier), was, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.
178. The Primary Fourth Amendment Named Plaintiffs bring this action under Rules 23(a), and 23(b) (2) of the Federal Rules of Civil Procedure on behalf of a class consisting of each woman who, during the Injunctive Relief Class Period (December 2, 1999 until the present and into the future unless the Court acts to restrain the unlawful activity complained of herein), was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to
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a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband. (This Class is hereafter at times referred to as the Primary Fourth Amendment Injunctive Relief Class.)
179. Certification of a Primary Fourth Amendment class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because defendants District of Columbia and Todd Dillard had policies and engaged in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
180. The Primary Fourth Amendment class is entitled to injunctive relief of terminating and prohibiting the resumption of the above described policy of blanket searches not based on individualized or particularized suspicion or cause.
181. Certification of a Primary Fourth Amendment 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.
182. Regarding the Primary Fourth Amendment Named Plaintiffs, and members of the Primary Fourth Amendment class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior Court Cell Block during the Class Period was subjected to the blanket strip searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of
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the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating any searches were done pursuant to such individualized suspicion, such people would, by definition, not be members of the Fourth Amendment class. 183. Among the questions of law and fact common to the Primary Fourth Amendment class are:
a. whether Todd Dillard while the United States Marshal for the Superior Court of the District of Columbia implemented a policy, custom and practice of subjecting female arrestees (but not similarly situated male arrestees) being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity searches and/or squat searches without an individualized determination that the woman was in possession of drugs, weapons or other contraband;
b. whether such policy, if found to exist, violates the Fourth Amendment; c. whether Todd Dillard was deliberately indifferent to the rights of such
female arrestees; d. Whether defendant District of Columbia had a policy or practice of
committing its female arrestees to the custody of Todd Dillard when it knew or should have known that Todd Dillard’s deputies would subject the
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female arrestees (but not similarly situated male arrestees) to blanket strip searches; e. whether plaintiffs and the members of the Primary Fourth Amendment Class have sustained damages and, if so, the proper measure of such damages; f. whether plaintiffs and the members of the Primary Fourth Amendment class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and g. whether determination of damages suffered by a statistically representative sample of the Primary Fourth Amendment class provides the basis for determination of all Primary Fourth Amendment class members’ damages except those who opt out. 184. The Primary Fourth Amendment class is so numerous that joinder of all members is impracticable. There are over 15,000 Primary Fourth Amendment class members. 185. Defendant District of Columbia has within its records the names and addresses of all the current and past Primary Fourth Amendment class members in the “CJIS” computer system (computerized booking program used by District of Columbia Metropolitan Police Department described below). 186. The Primary Fourth Amendment Named Plaintiffs’ claims are typical of the claims of the other members of the class, because the Primary Fourth Amendment Named
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Plaintiffs and all other members of the Primary Fourth Amendment class were injured by exactly the same means, that is, by the blanket searches. 187. The Primary Fourth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the 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. 188. The Primary Fourth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the Primary Fourth Amendment class. 189. The Primary Fourth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Primary Fourth Amendment Class. 190. The Primary Fourth Amendment class action will be manageable because so many different records systems exist from which to ascertain the members of the putative class. Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling or a “Dellums” matrix.
Fifth Amendment Class Action Allegations 191. The Fifth Amendment Named Plaintiffs bring this action under Rules 23(a) and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each
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woman who, during the Class Period (December 2, 1999, until the date the strip search policies and practices complained of herein were terminated or until this case is terminated, whichever is earlier), was, (i) while in the Superior Court Cell Block or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a blanket strip, visual body cavity and/or squat search. 192. The Fifth Amendment Named Plaintiffs bring this action under Rules 23(a) and 23(b) (2) of the Federal Rules of Civil Procedure on behalf of a class consisting of each woman who, during the Injunctive Relief Class Period (December 2, 1999 until the present and into the future unless the Court acts to restrain the unlawful activity complained of herein), was or will be, (i) while in the Superior Court Cell Block or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a blanket strip, visual body cavity and/or squat search..(This Class is hereafter at times referred to as the Fifth Amendment Injunctive Relief Class.) 193. Certification of a Fifth Amendment class under Federal Rule of Civil Procedure 23(b)(2) is appropriate, because defendants District of Columbia and Todd Dillard had a policy and engaged in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
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194. The Fifth Amendment class is entitled to injunctive relief of terminating the searches. 195. Certification of a Fifth Amendment 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. 196. Regarding the Fifth Amendment Named Plaintiffs, and members of the Fifth Amendment class, there are no individual questions on the issue of liability, because every woman arrestee held in the Superior Court Cell Block is subjected to the blanket searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating any searches were done pursuant to such individualized suspicion, such people would, by definition, not be members of the class. 197. Among the questions of law and fact common to the class are:
a. whether Todd Dillard implemented a policy or custom and practice of subjecting female arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual body cavity and/or squat searches, but not subjecting men arrestees to such searches;
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b. whether the policy of strip searching female arrestees serves any legitimate security interest;
c. whether classification of similarly situated men and female arrestees into classes based on gender bears any relationship to defendants’ asserted security interest;
d. whether such policy, if found to exist, violates the Fifth Amendment; e. whether Todd Dillard or the District of Columbia were deliberately
indifferent to the rights of such female arrestees; f. Whether defendant District of Columbia had a policy or practice of
committing its female arrestees to the custody of Todd Dillard when it knew or should have known that Todd Dillard’s deputies would subject females (but not similarly situated male arrestees) to blanket strip searches; g. whether plaintiffs and the members of the Fifth Amendment class have sustained damages and, if so, the proper measure of such damages; and h. whether plaintiffs and the members of the Fifth Amendment class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and i. whether determination of damages suffered by a statistically representative sample of the Fifth Amendment class provides the basis for determination of all class members except those who opt out.
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198. The Fifth Amendment class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least 15,000 people.
199. The Fifth Amendment Named Plaintiffs’ claims are typical of the claims of the other members of the Fifth Amendment class, because the Fifth Amendment Named Plaintiffs and all other members of the Fifth Amendment class were injured by exactly the same means, that is, by the blanket searches.
200. The Fifth Amendment Named Plaintiffs will fairly and adequately protect the interests of the members of the Fifth Amendment 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.
201. The Fifth Amendment Named Plaintiffs have no interests that are contrary to or in conflict with those of the Fifth Amendment class.
202. The Fifth Amendment Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Fifth Amendment Class. The Fifth Amendment class action will be manageable because so many different records systems exist from which to ascertain the members of the putative class. Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
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203. Defendant District of Columbia has within its computerized records described above the names and addresses of all the current and past class members.
SUBSTANTIVE ALLEGATIONS CLAIMS OF PRIMARY FOURTH AMENDMENT NAMED PLAINTIFFS
Count 1 Violation of Fourth Amendment Rights of Fourth Amendment Plaintiffs under § 1983 204. The Primary Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 205. While being held for presentment in the Superior Court Cell Block each of the Primary Fourth Amendment Named Plaintiffs and every other Primary Fourth Amendment class member were subjected to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband, pursuant to a custom, policy and/or practice of Marshal Dillard and the District of Columbia – each of which is jointly and severally liable and responsible for such policy, custom and/or practice - to conduct such searches. 206. Subjecting an arrestee arrested on a non drug, non violent offense to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband violates her Fourth Amendment Rights.
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207. The District of Columbia knew or should have known that the Primary Fourth Amendment Named Plaintiffs and other Primary Fourth Amendment class members were being and would be subjected to the searches in the Superior Court Cell Block and acquiesced in the searches.
208. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Primary Fourth Amendment Named Plaintiffs and the Primary Fourth Amendment class members’ Fourth Amendment Rights.
209. Todd Dillard’s and the District of Columbia’s policy, custom and practices described above were the moving force behind the deprivations to the Primary Fourth Amendment Named Plaintiffs’ and other Primary Fourth Amendment class members’ Fourth Amendment Rights and the Primary Fourth Amendment Named Plaintiffs and the Primary Fourth Amendment other class members’ injuries as described above.
210. Defendants caused the unreasonable strip, visual body cavity search and/or squat searches of the Primary Fourth Amendment Named Plaintiffs and all other Primary Fourth Amendment class members by deliberate indifference to the risk of constitutional injury by implementing maintaining and/or acquiescing in a policy and practice and custom of strip searching female arrestees.
211. At all relevant times Todd Dillard’s deputies and the District of Columbia’s employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of Todd Dillard or the District of Columbia, and such
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employees were acting in furtherance of the business of Todd Dillard or the District of Columbia.
212. In developing, implementing and participating in the custom, policy, practice and conduct complained of herein, Marshal Todd Dillard and his deputies were acting as agents of the District of Columbia.
213. Defendant District of Columbia and Defendant Todd Dillard are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other class members caused by their conduct.
214. As a stand alone, alternative theory of liability the District of Columbia is liable for its own policy or practice of transferring physical custody of its arrestees to the United States Marshal for the Superior Court of the District of Columbia because the District knew, or should have known, that the Superior Court Marshal’s deputies were subjecting female, but not male, arrestees brought to the Courthouse for presentment to unconstitutional strip searches. This is so regardless of the District’s relationship with Todd Dillard [United States Marshal for the Superior Court of the District of Columbia] and regardless of whether it established the policy of strip searching pre-presentment arrestees at the D.C. Superior Court, regardless of whether it its agents or employees participated in or authorized the strip searches, and regardless of whether it had power to supervise or control the actions of former Marshal Dillard or the U.S. Marshal's Service.
215. The Primary Fourth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendants, and each of them,
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has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Fourth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Primary Fourth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
Count 2 Direct Liability of Todd Dillard for Violation of Fourth Amendment Rights of Fourth
Amendment Plaintiffs for Illegal Searches 216. The Primary Fourth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 217. Each of the Primary Fourth Amendment Named Plaintiffs was arrested under the authority of a District of Columbia statute and held in the Superior Court Cell Block for presentment before a District of Columbia Superior Court Judge or other judicial officer. 218. At all times that each of the Primary Fourth Amendment Named Plaintiffs and every other Primary Fourth Amendment class member was in the Superior Court Cell Block, she was in the joint custody of Todd Dillard and the District of Columbia. 219. While in the Superior Court Cell Block, each of the Primary Fourth Amendment Named Plaintiffs and every other Primary Fourth Amendment class member was
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subjected to a strip, visual body cavity search and/or squat search by a deputy of Todd Dillard without an individual determination that the search would reveal weapons, drugs or other contraband. 220. Defendant Todd Dillard violated the Fourth Amendment rights of the Primary Fourth Amendment Named Plaintiffs and the Primary Fourth Amendment class by establishing and implementing the strip search policies described above. 221. Defendant Todd Dillard is therefore directly liable under the Primary Fourth Amendment for constitutional injuries to the Fourth Amendment Named Plaintiffs and all other Primary Fourth Amendment class members caused by his conduct. 222. The Primary Fourth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendant Todd Dillard, and/or of the current United States Marshal for the Superior Court of the District of Columbia, and each of them, has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Fourth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Primary Fourth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
CLAIMS OF FIFTH AMENDMENT NAMED PLAINTIFFS
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Count 3 Liability of Defendants for Violation of Fifth Amendment Rights of Fifth Amendment
Plaintiffs for Illegal Searches under § 1983 223. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth above in this Complaint. 224. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other Fifth Amendment class member were subjected to a visual body cavity search and squat search, pursuant to a custom, policy and/or practice of Marshal Dillard and the District of Columbia – each of which is jointly and severally liable and responsible for such policy, custom and/or practice - to conduct such searches. 225. While in the Superior Court Cell Block each of the Fifth Amendment Named Plaintiffs and every other Fifth Amendment class member, was similarly situated to every male arrestee, but said male arrestees were not subjected to a visual body cavity search and squat search, pursuant to a custom, policy and/or practice of Marshal Dillard and the District of Columbia. 226. The visual body cavity and squat searches of the female arrestees did not serve any legitimate security interest. 227. The classification of arrestees into classes based on gender bore no relationship to defendants’ security interests.
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228. Defendant District of Columbia knew that the Fifth Amendment Named Plaintiffs and other Fifth Amendment class members were being and would be subject to the above-described searches in the Superior Court Cell Block and acquiesced in the strip searches.
229. Defendants’ actions, and failure to act, as described above, resulted in the violation of the equal protection rights of the Fifth Amendment class Named Plaintiffs and members under the Fifth and Fourteenth Amendments to the United States Constitution. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Fifth Amendment Named Plaintiffs and the Fifth Amendment class members’ Fifth Amendment Rights.
230. Todd Dillard’s and the District of Columbia’s policies, customs and practices described above were the moving force behind the deprivations to the Fifth Amendment Named Plaintiffs’ and other Fifth Amendment class members’ Fifth Amendment Rights.
231. Defendants’ actions, and failure to act, as described above, directly and proximately caused, and were the moving force behind the Fifth Amendment Named Plaintiffs and the other Fifth Amendment class members’ injuries as described above.
232. Todd Dillard’s and the District of Columbia’s deputies and employees caused the unreasonable strip, visual body cavity search and/or squat searches of the Fifth Amendment Named Plaintiffs and all other Fifth Amendment class members by deliberate indifference to the risk of constitutional injury by maintaining and/or
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acquiescing in a policy and practice of strip searching female arrestees but not similarly situated male arrestees.
233. At all relevant times such Todd Dillard and District of Columbia employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of Todd Dillard and the District of Columbia, and such employees were acting in furtherance of the business of Todd Dillard and the District of Columbia.
234. In developing, implementing and participating in the custom, policy, practice and conduct complained of herein, Marshal Todd Dillard was acting as an agent of the District of Columbia.
235. Defendant District of Columbia and Defendant Todd Dillard are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Fifth Amendment Named Plaintiffs and all other class members caused by them.
236. As a stand alone, alternative theory of liability the District of Columbia is liable for its own policy or practice of transferring physical custody of its arrestees to the United States Marshal for the Superior Court of the District of Columbia because the District knew, or should have known, that the Superior Court Marshal’s deputies were subjecting female, but not male, arrestees brought to the Courthouse for presentment to unconstitutional strip searches. This is so regardless of the District’s relationship with Todd Dillard [United States Marshal for the Superior Court of the District of Columbia] and regardless of whether it established the policy of strip searching pre-presentment arrestees at the D.C. Superior Court, regardless of whether it its agents or employees
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participated in or authorized the strip searches, and regardless of whether it had power to supervise or control the actions of former Marshal Dillard or the U.S. Marshal's Service. 237. The Fifth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendants, and each of them, has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Fifth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Fifth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
Count 4 Direct Liability of the United States Marshals Service and Todd Dillard for Violation of
Fifth Amendment Rights of Fifth Amendment Named Plaintiffs 238. The Fifth Amendment Named Plaintiffs reallege and incorporate by reference all allegations set forth in the preceding paragraphs of this Complaint. 239. Todd Dillard is directly liable under the Fifth Amendment for the strip searches of the female arrestees (but not similarly situated male arrestees) described herein. 240. The Fifth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendant Todd Dillard, and/or of the current
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United States Marshal for the Superior Court of the District of Columbia, and each of them, has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Fifth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Fifth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
CLAIMS OF “ALTERNATIVE FOURTH AMENDMENT CLASS” NAMED PLAINTIFFS
ALLEGATIONS ABOUT MALE ARRESTEES PLED IN THE ALTERNATIVE 241. Plaintiffs now plead in the alternative certain allegations relating to strip searches of both males and females arrestees. (See ¶¶ 4-5 and fn. 1, supra, for further explanation of the reason for this alternative pleading.) The alternative allegations encompass ¶¶ 241272, after which the alternative causes of action are set forth. 242. Plaintiffs plead these allegations in the alternative based on information and belief and their understanding of statements made by attorneys for the federal defendants. 243. Plaintiffs incorporate by reference the preceding allegations from ¶ 1 up to and including ¶ 125.
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244. Sometime in 1995, and continuing through the Class Period, including the Injunctive Relief Class Period, Todd Dillard implemented a practice or policy of having deputies subject all arrestees, males as well as females, to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the arrestees are in possession of weapons, drugs or other contraband. 245. During the Class Period, including the Injunctive Relief Class Period, this practice of having deputies subject all arrestees, males as well as females, to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the arrestees were in possession of weapons, drugs or other contraband violated the United States Marshals’ Service strip search policy (attached and incorporated by reference herein). 246. During the Class Period, including the Injunctive Relief Class Period, Todd Dillard’s deputies actually physically conducted the visual body cavity and squat searches of the arrestees, males as well as females, in a hallway on the way to the Superior Court Cell Block or in the Superior Court Cell Block. 247. During the Class Period, including the Injunctive Relief Class Period, Deputies subjected every single arrestee, males as well as females, to the strip searches described herein without exception and regardless of charge. 248. During the Class Period, including the Injunctive Relief Class Period, Todd Dillard’s deputies instructed deputies newly assigned to the Superior Court to conduct the
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blanket strip searches on all arrestees, males as well as females, as part of the new deputies’ two day training program. 249. During the Class Period, including the Injunctive Relief Class Period, after the thorough pat down searches and the “in-custody” searches, deputies then took the arrestees, males as well as females, to the cell block area designated for arrestees and subjected them to blanket strip, visual body cavity and/or squat searches in the hallway leading to the Superior Court Cell Block or in the Cell Block or in the door way of the Cell Block itself. 250. During the Class Period, including the Injunctive Relief Class Period, a deputy directed the arrestees, males as well as females, to pull up their skirts or lower their pants, and pull down any undergarments. 251. During the Class Period, including the Injunctive Relief Class Period, a deputy then made the arrestees, males as well as females, squat, turn around, and display their buttocks and genitals to the deputy. 252. During the Class Period, including the Injunctive Relief Class Period, the deputies stood just a few feet away from the arrestees, males as well as females, as they performed the strip searches and made a point of observing their genitalia and anus areas. 253. During the Class Period, including the Injunctive Relief Class Period, the female deputies did not place mirrors underneath the female arrestees as they squatted.
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254. Forcing a woman to squat is not an effective method of making contraband hidden
in her vagina visible.
255. During the Class Period, including the Injunctive Relief Class Period, deputies
then put the arrestees, males as well as females, in a holding cell designated for new lock
ups measuring about 30 to 50 feet.
256. During the Class Period, including the Injunctive Relief Class Period, the deputies
conducted the strip searches of newly arrived arrestees, males as well as females, in front
of all arrestees of the same sex already in the hallway leading from the reception area to
the Superior Court Cell Block, or in the Cell Block.
257. One female arrestee subjected to the strip search in about 2002 described it as
follows:
We four women then walked into the cell one by one in single file. The lead woman walked towards the back of the cell where a toilet was, facing the back of the cell, and pulled her pants and underwear down, and crouched down in a half squat, displaying her buttocks to the female Marshal. The female Marshal told the second girl in line, “Face the wall.” Then the second and third woman also walked towards the back of the cell where the toilet was, facing the back of the cell, and pulled their pants and underwear down, and crouched down in a half squat, displaying their buttocks to the female Marshal. The female Marshal was screaming, “Keep moving, ladies.” The other inmates were telling me I had to strip too. “This is what you have to do when you get here”, they said. I turned to the female Marshal, and asked the female Marshal, “I don’t have to do that, do I”? She screamed several times at me, “Keep moving, I don’t have all day.” Then she barked at me, “Go to the end and do it.” Then I walked to the back to the wall, turned around, pulled down my pants, and then I pulled down my underwear. It seemed like an eternity. All the other inmates applauded.
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258. After the deputies had completed processing and strip searching arrestees as described herein, but before they presented arrestees, males as well as females, in the presentment courtrooms, they allowed arrestees to have unsupervised contact visits with their attorneys in conference cells. 259. The attorneys and the arrestees, males as well as females, in the conference cells were separated only by grills that have 4 inch by 12 inch slots in the grill-work for items and paperwork to be passed through. 260. No arrestees were subjected to strip searches after the contact visits even though arrestees were subjected to strip searches described herein before the contact visits. 261. The contact visits with attorneys were not the justification for any of the searches of arrestees described herein. 262. During the Class Period, including the Injunctive Relief Class Period, agents of the District of Columbia had actual knowledge of Todd Dillard’s practice of subjecting males and females to blanket strip searches. Alternatively, agents of the District of Columbia knew or should have known of Todd Dillard’s practice of subjecting male and female arrestees to blanket strip searches. 263. During the Class Period, including the Injunctive Relief Class Period, agents of the District of Columbia such as police and pretrial services employees and CJA Office employees conducting financial eligibility interviews regularly mingled at the Superior Court courthouse with the Superior Court Marshals and arrestees, and knew about the
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searches at all times within the Class Period. On information and belief, the Government of the District of Columbia knowingly, and as part of its practice, policy, and custom, nonetheless transferred arrestees in its custody to the custody of Todd Dillard (then United States Marshal for the Superior Court of the District of Columbia), causing each member of the Alternative Fourth Amendment Class to be subjected to the strip searches. 264. The MPD transport officers mingled with Todd Dillard’s deputies near the sally port and were aware of the strip searches of arrestees during the Class Period. 265. The strip searches of male and female arrestees were not supported by a legitimate security interest. 266. For example, there is no documented history of contraband smuggling at the Superior Court. 267. The deputies did not keep records of the strip searches of male and female arrestees. 268. During the Class Period, including the Injunctive Relief Class Period, agents of the District of Columbia such as police and pretrial services employees and CJA Office employees conducting financial eligibility interviews regularly mingled at the Superior Court courthouse with the Superior Court Marshals and arrestees, and knew about the blanket strip searches of male and female arrestees at all times within the Class Period.
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269. During the Class Period, including the Injunctive Relief Class Period, the MPD transport officers mingled with Todd Dillard’s deputies near the sally port and were aware of the strip searches of male and female arrestees. 270. During the Class Period, including the Injunctive Relief Class Period, the District of Columbia took no steps to stop the strip searches of male and female arrestees. 271. During the Class Period, including the Injunctive Relief Class Period, the District of Columbia delegated its duties regarding strip searches to Todd Dillard but failed to train Todd Dillard in strip search policies even though the need for training was obvious. 272. The constitutional violations that resulted were foreseeable because of the District’s failure to train.
Alternative Fourth Amendment Class Action Allegations 273. The Alternative Fourth Amendment Named Plaintiffs bring this action under Rules 23(a) and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each male and female who, during the Class Period (December 2, 1999, until the date the strip search policies and practices complained of herein were terminated or until this case is terminated, whichever is earlier),was (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any
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individualized finding of reasonable suspicion or probable cause that he/she was concealing drugs, weapons or other contraband. 274. The Alternative Fourth Amendment Named Plaintiffs bring this action under Rules 23(a), and 23(b) (2) of the Federal Rules of Civil Procedure on behalf of a class consisting of each person who, during the Injunctive Relief Class Period (December 2, 1999 until the present and into the future unless the Court acts to restrain the unlawful activity complained of herein), was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband. (This Class is hereafter at times referred to as the Alternative Fourth Amendment Injunctive Relief Class.) 275. Certification of an Alternative Fourth Amendment class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because defendants District of Columbia and Todd Dillard had policies and engaged in a pattern and practice of conduct that has uniformly affected all members of the Alternative Fourth Amendment class, and injunctive relief against Defendants will benefit each and every Alternative Fourth Amendment named plaintiff and Alternative Fourth Amendment class member.
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276. The Alternative Fourth Amendment class is entitled to injunctive relief of terminating and prohibiting the resumption of the above described policy of blanket searches not based on individualized or particularized suspicion or cause.
277. 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.
278. Regarding the Alternative Fourth Amendment Named Plaintiffs, and members of the Alternative Fourth Amendment class, there are no individual questions on the issue of liability, because every arrestee held in the Superior Court Cell Block during the alternative Class Period was subjected to the blanket strip searches, and none of the defendants keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating any searches were done pursuant to such individualized suspicion, such people would, by definition, not be members of the Alternative Fourth Amendment class.
279. Among the questions of law and fact common to the class are:
a. whether Todd Dillard while the United States Marshal for the Superior Court of the District of Columbia implemented a policy, custom and practice of subjecting female arrestees and male arrestees being held in the Superior Court Cell Block pending presentment to blanket strip, visual
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body cavity searches and/or squat searches without an individualized determination that the arrestee was in possession of drugs, weapons or other contraband; b. whether such policy, if found to exist, violates the Fourth Amendment; c. whether Todd Dillard was deliberately indifferent to the rights of such arrestees; d. Whether defendant District of Columbia had a policy or practice of committing its male and female arrestees to the custody of Todd Dillard when it knew or should have known that Todd Dillard’s deputies would subject the female arrestees and the male arrestees to blanket strip searches; e. whether plaintiffs and the members of the Alternative Fourth Amendment class have sustained damages and, if so, the proper measure of such damages; f. whether the Alternative Fourth Amendment class plaintiffs and the members of the Alternative Fourth Amendment class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and g. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all Fourth Amendment class members’ damages except those who opt out.
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280. The class is so numerous that joinder of all members is impracticable. There are over 15,000 Alternative Fourth Amendment class class members. 281. Defendant District of Columbia has within its records the names and addresses of all the current and past class members in the “CJIS” computer system (computerized booking program used by District of Columbia Metropolitan Police Department described below). 282. The Alternative Fourth Amendment class Named Plaintiffs’ claims are typical of the claims of the other members of the Alternative Fourth Amendment class, because the Alternative Fourth Amendment class Named Plaintiffs and all other members of the Alternative Fourth Amendment class were injured by exactly the same means, that is, by the blanket strip searches. 283. The Alternative Fourth Amendment class Named Plaintiffs will fairly and adequately protect the interests of the members of the Alternative Fourth Amendment 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. 284. The Alternative Fourth Amendment class Named Plaintiffs have no interests that are contrary to or in conflict with those of the Alternative Fourth Amendment class. 285. The Alternative Fourth Amendment class Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its
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maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Alternative Fourth Amendment class. 286. The class action will be manageable. Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling or a “Dellums” matrix.
ALTERNATIVE FOURTH AMENDMENT CLASS SUBSTANTIVE ALLEGATIONS Count 5
Violation of Fourth Amendment Rights of Alternative Fourth Amendment Class Plaintiffs under § 1983
287. The Alternative Fourth Amendment Class Named Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1 through 125, and all the allegations in ¶ 241 forward. 288. While being held for presentment in the Superior Court Cell Block each of the Alternative Fourth Amendment Class Named Plaintiffs and every other Alternative Fourth Amendment Class class member were subjected to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband, pursuant to a custom, policy and/or practice of Marshal Dillard and the District of Columbia – each of which is jointly and severally liable and responsible for such policy, custom and/or practice - to conduct such searches.
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289. Subjecting an arrestee arrested on a non drug, non violent offense to a strip, visual body cavity search and/or squat search without an individual determination that the search would reveal weapons, drugs or other contraband violates his/her Fourth Amendment Rights.
290. The District of Columbia knew or should have known that the Alternative Fourth Amendment Class Named Plaintiffs and other Alternative Fourth Amendment Class class members would be subject to the searches in the Superior Court Cell Block and acquiesced in the searches.
291. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Alternative Fourth Amendment Class Named Plaintiffs and the Alternative Fourth Amendment Class class members’ Fourth Amendment Rights.
292. Todd Dillard’s and the District of Columbia’s policy, custom and practices described above were the moving force behind the deprivations to the Alternative Fourth Amendment Class Named Plaintiffs’ and other Alternative Fourth Amendment Class class members’ Fourth Amendment Rights and the Alternative Fourth Amendment Class Named Plaintiffs and the other Alternative Fourth Amendment Class class members’ injuries as described above.
293. Defendants caused the unreasonable strip, visual body cavity search and/or squat searches of the Alternative Fourth Amendment Class Named Plaintiffs and all other Alternative Fourth Amendment Class class members by deliberate indifference to the risk
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of constitutional injury by implementing maintaining and/or acquiescing in a policy and practice and custom of strip searching female arrestees.
294. At all relevant times Todd Dillard’s deputies and the District of Columbia’s employees were acting within the scope of their employment, their acts were motivated by a desire to further the interests of Todd Dillard or the District of Columbia, and such employees were acting in furtherance of the business of Todd Dillard or the District of Columbia.
295. In developing, implementing and participating in the custom, policy, practice and conduct complained of, Marshal Todd Dillard and his deputies were acting as agents of the District of Columbia.
296. Defendant District of Columbia and Defendant Todd Dillard are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Alternative Fourth Amendment Class Named Plaintiffs and all other Alternative Fourth Amendment Class class members caused by their conduct.
297. As a stand alone, alternative theory of liability the District of Columbia is liable for its own policy or practice of transferring physical custody of its arrestees to the United States Marshal for the Superior Court of the District of Columbia because the District knew, or should have known, that the Superior Court Marshal’s deputies were subjecting female, but not male, arrestees brought to the Courthouse for presentment to unconstitutional strip searches. This is so regardless of the District’s relationship with Todd Dillard [United States Marshal for the Superior Court of the District of Columbia]
68

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and regardless of whether it established the policy of strip searching pre-presentment arrestees at the D.C. Superior Court, regardless of whether it its agents or employees participated in or authorized the strip searches, and regardless of whether it had power to supervise or control the actions of former Marshal Dillard or the U.S. Marshal's Service. 298. The Alternative Fourth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendants, and each of them, has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Alternative Fourth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Alternative Fourth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
Count 6 Direct Liability of Todd Dillard for Violation of Fourth Amendment Rights of Fourth
Amendment Plaintiffs for Illegal Searches 299. The Alternative Fourth Amendment Class Named Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1 through 125, and all the allegations in ¶ 241 forward.
69

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300. Each of the Alternative Fourth Amendment Class Named Plaintiffs was arrested under the authority of a District of Columbia statute and held in the Superior Court Cell Block for presentment before a District of Columbia Superior Court Judge or other judicial officer. 301. At all times that each of the Alternative Fourth Amendment Class Named Plaintiffs and every other Alternative Fourth Amendment class member was in the Superior Court Cell Block, he/she was in the joint custody of Todd Dillard and the District of Columbia. 302. While in the Superior Court Cell Block, each of the Alternative Fourth Amendment Class Named Plaintiffs and every other Alternative Fourth Amendment class member was subjected to a strip, visual body cavity search and/or squat search by a deputy of Todd Dillard without an individual determination that the search would reveal weapons, drugs or other contraband. 303. Defendant Todd Dillard violated the Fourth Amendment rights of the Alternative Fourth Amendment Class Named Plaintiffs and class members by establishing and implementing the strip search policies described above. 304. Defendant Todd Dillard is therefore directly liable under the Fourth Amendment for constitutional injuries to the Alternative Fourth Amendment Class Named Plaintiffs and all other Alternative Fourth Amendment class members caused by his conduct.
70

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305. Alternatively, the Government of the District of Columbia knows, and knew at all times within the Class Period, or should have known, that female and male arrestees would be subjected to blanket searches in the Superior Court Cell Block and the Government of the District of Columbia acquiesced in the searches. 306. Alternatively, the Government of the District of Columbia knowingly and as part of its practice, policy, and custom, nonetheless transferred female and male arrestees in its custody to the custody of Todd Dillard (then United States Marshal for the Superior Court of the District of Columbia), causing each member of the Classes to be subjected to the strip searches. 307. As a stand alone, alternative theory of liability the District of Columbia is liable for its own policy or practice of transferring physical custody of its arrestees to the United States Marshal for the Superior Court of the District of Columbia because the District knew, or should have known, that the Superior Court Marshal’s deputies were subjecting female, but not male, arrestees brought to the Courthouse for presentment to unconstitutional strip searches. This is so regardless of the District’s relationship with Todd Dillard [United States Marshal for the Superior Court of the District of Columbia] and regardless of whether it established the policy of strip searching pre-presentment arrestees at the D.C. Superior Court, regardless of whether it its agents or employees participated in or authorized the strip searches, and regardless of whether it had power to supervise or control the actions of former Marshal Dillard or the U.S. Marshal's Service.
71

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308. The Alternative Fourth Amendment Injunctive Relief Class Plaintiffs are informed and believe, and on that basis allege, that the conduct of Defendant Todd Dillard, and/or of the current United States Marshal for the Superior Court of the District of Columbia, and each of them, has been and, unless restrained, will continue to be deleterious to the constitutional and statutory rights of plaintiffs, thereby inflicting irreparable harm on the Alternative Fourth Amendment Injunctive Relief Class. Said Plaintiffs have no adequate remedy at law for the injuries that are threatened by Defendants' continued failure to abide by and implement the statutory and constitutional rights of the Alternative Fourth Amendment Injunctive Relief Class. Unless restrained, defendants will continue to deny said Plaintiffs their statutory and constitutional rights as expressed in this Complaint.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief: 1) declare that this action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) and certify the classes defined herein. 2) declare that defendants’ acts alleged above violate the Fourth and Fifth Amendments to the Constitution by illegally strip searching plaintiffs as alleged herein; 3) preliminarily and permanently enjoin defendants from pursuing the course of conduct complained of herein; 4) award all plaintiffs compensatory and consequential damages in an amount to be determined at trial;
72

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5) award plaintiffs attorneys' fees and costs incurred in bringing this action under 42 U.S.C. § 1988 and/or any other applicable statute or under the percentage of the fund method;
6) grant such other relief as this Court deems just and proper.
Respectfully submitted,
__________/sig/___________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Named Plaintiffs and the Classes 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
Respectfully submitted,
______/sig/___________________________ Louis Kleiman D.C. Bar # 124-933 Counsel for Plaintiffs and the Classes 2055 15th Street Arlington, VA Phone 703-524-3333 Fax 703-525-2222
Respectfully submitted,
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______/sig/_____________ Barrett S. Litt, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
Respectfully submitted,
______/sig/_________________ Paul Estuar, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
JURY DEMAND
Plaintiffs demand a jury trial on all claims so triable.
Respectfully submitted,
__________/sig/___________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Named Plaintiffs and the Classes 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
Respectfully submitted,
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______/sig/___________________________ Louis Kleiman D.C. Bar # 124-933 Counsel for Plaintiffs and the Classes 2055 15th Street Arlington, VA Phone 703-524-3333 Fax 703-525-2222
Respectfully submitted,
______/sig/_____________ Barrett S. Litt, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
Respectfully submitted,
______/sig/_________________ Paul Estuar, Esq. Pro Hac Vice 3435 Wilshire Blvd. Los Angeles, CA Phone (213)-386-3114 Fax (213)-380-4585
75

 
 Case 1:02-cv-02364-RMC Document 62-1 Filed 05/31/2006 Page 1 of 35

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DIANNA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 02-2364 (RMC)

)

GOVERNMENT OF THE

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

FEDERAL DEFENDANTS’ MOTION TO DISMISS

Pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, the United States

Marshals Service (“USMS”) and Todd Dillard, in his individual capacity, respectfully move this

Court to dismiss this action as to them. In support of this Motion, the Court is respectfully referred

to the accompanying memorandum of points and authorities. A proposed order consistent with this

Motion is also attached hereto.

Respectfully submitted,

/s/ KENNETH L. WAINSTEIN, D.C. BAR # 451058 United States Attorney
/s/ RUDOLPH CONTRERAS, D.C. Bar # 434122 Assistant United States Attorney
/s/ OLIVER W. McDANIEL, D.C. Bar #377360 LISA S. GOLDFLUSS, D.C. Bar #417787 Assistant United States Attorneys

Case 1:02-cv-02364-RMC Document 62-1 Filed 05/31/2006 Page 2 of 35

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DIANNA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 02-2364 (RMC)

)

GOVERNMENT OF THE

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS

Defendants Todd Dillard and the United States Marshals Service, through counsel, the United

States Attorney for the District of Columbia, respectfully submit this memorandum in support of

their motion to dismiss the actions against them. There is no subject matter jurisdiction over the only

remaining claim against the United States Marshals Service (“USMS”) because Plaintiffs lack standing to advance that claim, and the claim is moot.1 The claims against Todd Dillard are barred

by the doctrine of qualified immunity, and because the action against him fails to state a claim upon

which relief can be granted.

1 Plaintiffs have conceded that they have no colorable damages action against the United States Marshals Service. See Plaintiffs’ Notice, filed May 26, 2006 [dkt. no. 60]. Plaintiffs have affirmed their intention, however, to maintain their claim against the USMS for preliminary and permanent injunctive relief. Id.; see also First Amended Complaint at 50.

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THE COMPLAINT By an Amended Complaint (“Am. Compl.”) filed on May 1, 2006, Plaintiffs seek to advance class action claims against the government of the District of Columbia and against the USMS, Todd Dillard and unnamed “Doe” Defendants in their individual capacities involving alleged violations of Plaintiffs’ fourth amendment right to privacy and their fifth amendment right to equal protection.2 Am. Compl. at ¶¶ 1-17, 65-69. Plaintiffs also advance a class action claim against both the District of Columbia and the Federal Defendants pursuant to 42 U.S.C. § 1983, on the theory that authority over those detained in the cellblock of the Superior Court of the District of Columbia, during the relevant time period, derived from the District of Columbia Government. Id. By way of summary, the Amended Complaint seeks to advance a class action under Fed. R. Civ. P. 23(a), 23(b)(2) and 23(b)(3), with two sub-classes – a Fourth Amendment Class (hereinafter “4AC”) and a Fifth Amendment Class (hereinafter “5AC”). Am. Compl. at ¶¶ 1-17, 20, 33. The 4AC, as defined, consists of all adult women arrestees who, during the action and in the three-year period preceding it, were held for presentment in the cellblock of the Superior Court of the District of Columbia for an offense defined under a D.C. statute that did not involve drugs or violence and who were subjected to “a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.” Id. at ¶ 20. The 5AC, as defined, consists of all adult women arrestees who, during the same time frame as the 4AC, were held for presentment in the cellblock of the Superior Court of the District of Columbia for any offense defined under a D.C. statute, under similar circumstances as men arrestees, and who were subjected to a blanket strip, visual body cavity
2 The USMS and Mr. Dillard are hereinafter referred to as the “Federal Defendants.” 2

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and/or squat search, even if the search was based upon an individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband. Id. at 33.
Plaintiffs further allege that Defendant USMS is a federal agency, but is jointly responsible with Defendant District of Columbia, as an agent thereof, for planning and implementing the “strip, visual body cavity and squat searches” of women arrestees described in the Complaint. Am. Compl. at ¶ 66. Plaintiffs have advanced suit against ten “Doe” Deputy United States Marshals (DUSMs), whom they contend developed and implemented the policy challenged by the 4AC, and against another ten “Doe” DUSMs, whom they further contend developed and implemented the policy complained of by the 5AC. Id. at ¶¶ 68-69.
Plaintiffs specifically allege that “[t]he United States Marshal for the Superior Court, and his deputies, follow a policy and custom of subjecting, upon their admission to the Superior Court Cell Block, all women arrestees to blanket strip, visual body cavity and/or squat searches without a particularized finding of reasonable suspicion that the woman arrestee [sic] is in possession of weapons, drugs or other contraband.” Am. Compl. at ¶ 83. Further, according to the Complaint, “[a]gents of the District of Columbia, including the United States Marshal for the Superior Court and his deputies, do not subject men arrestees in the Superior Court Cell Block awaiting presentment to blanket strip, visual body cavity and/or squat searches.” Id. at ¶ 85.3
After purporting to describe the nature of the search of the women arrestees, Am. Compl. at ¶¶ 86 - 102, Plaintiffs proceed to make a number of non-factual, conclusory statements about the process. Am. Compl. at ¶¶ 103-106. Among the statements made is that “[t]he practice of the
3 Federal Defendants dispute that there is a disparity in the treatment of men and women arrestees, but for the purposes of this motion, understand that the Court must treat Plaintiffs’ allegations as true.
3

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searches is not justified by a legitimate security interest.” Id. at ¶ 105.4 Plaintiffs allege that both District of Columbia and USMS employees participated in making and implementing the described searches and that District of Columbia employees “acquiesce in and facilitate the practice.”5 Id. at 109-110.
Plaintiffs allege that Todd Dillard, as the (former) United States Marshal for the Superior Court of the District of Columbia, derived “his authority over women arrestees in the Superior Court Cell Block pursuant to statutes of the District of Columbia, including D.C. Code §§ 13-302, 16-703, 23-501, 23-561, 23-563 and 23-581 and cooperative agreements entered into between the United States Marshals Service and the government of the District of Columbia pursuant to D.C. Code § 5-133.17, and the authority of the Chief Judge acting in an administrative capacity for the District of Columbia.” Am. Compl. at ¶ 132. Further, they assert another legal conclusion that, “Defendant Todd Dillard and Does 1-10 and Does 11-20 were acting under color of District of Columbia law and . . . were acting pursuant to the policy, custom and practice of Defendant District of Columbia. Id. at ¶ 133.
After summarizing allegations concerning the individual circumstances and alleged unlawful treatment of the named Plaintiffs, Am. Compl. at ¶¶ 134-170, Plaintiffs set forth substantive counts as follows. Count I purports to set forth claimed fourth amendment violations against the 4AC under
4 Such a legal conclusion should not be viewed in a light most favorable to the Plaintiff, as other truly factual allegations advanced in the Complaint.
5 Plaintiffs have alleged that the events to which the First Amended Complaint refers “occurred before the last day of April, 2003,” Am. Compl. at ¶ 3, and that in April, 2003, “the Federal Defendants represented [through their United States Justice Department attorneys] to the Plaintiffs and the Court that they stopped the strip search practices described herein.” Id. Nonetheless, Plaintiffs have written their Amended Complaint in the present tense. Id.
4

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42 U.S.C. § 1983. Am. Compl. at ¶¶ 171-180. Count II purports to set forth claimed fourth amendment violations against the 4AC by the Federal Defendants. Id. at ¶¶ 181-186. Counts III and IV set forth claims involving the 5AC. Count III purports to set forth claimed fifth amendment violations against the 5AC under 42 U.S.C. § 1983. Id. at ¶¶ 187-199. Finally, Count IV, in like manner, alleges claimed fifth amendment violations against the 5AC by the Federal Defendants. Id. at ¶¶ 200 - 204. Plaintiffs assert a claim for declaratory and injunctive relief, then set forth their prayer for relief. Id. at ¶¶ 205 - 206 & at 49 - 51.
STANDARD OF REVIEW A. Dismissal for Lack of Subject Matter Jurisdiction (Fed.R.Civ.P. 12(b)(1)) “A motion under 12(b)(1) ‘presents a threshold challenge to the court's jurisdiction.’” Gardner v. U.S., No. 96-1467, 1999 WL 164412, Slip op. at *2 (D.D.C. Jan. 29, 1999), quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987), aff’d, 213 F.3d 735 (D.C. Cir. 2000), cert. denied, 531 U.S. 1153 (2001); see also 4 Wright & Miller: Federal Prac. & Proc. § 1350 (R12) (2002 Supplement) (“...subject matter jurisdiction deals with the power of the court to hear the plaintiff’s claims in the first place, and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power.”) A court may resolve a motion to dismiss brought pursuant to Rule 12(b)(1) in two ways. First, the court may determine the motion based solely on the complaint. Herbert v. National Academy of Science, 974 F.2d 192, 197 (D.C. Cir. 1992). Alternatively, to determine the existence of jurisdiction, a court may look beyond the allegations of the complaint, consider affidavits and other extrinsic information, and ultimately weigh the conflicting evidence. See id.; see also Cureton v. United States Marshal Service, 322 F.Supp.2d 23, 26 (D.D.C. 2004).
5

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B. Motion for Failure to State a Claim (Fed.R.Civ.P. 12(b)(6)) In making determinations on a motion to dismiss under Rule 12(b)(6), the Court must view facts alleged in the complaint in the light most favorable to the plaintiff. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Nix v. Hoke, 139 F. Supp. 2d 125 (D.D.C. 2001), citing Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001); see also Slaby v. Fairbridge, 3 F. Supp. 2d 22, 27 (D.D.C. 1998). A complaint should be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 46. See also Warren v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004) (noting that the 12(b)(6) dismissal standard is no different for pro se prisoner complaints, despite frequent incantation that courts should apply a “liberal construction” in such cases: “But again this is not unique for prisoner cases. It is the ‘accepted rule’ in every type of case.”). Although the plaintiff is given the benefit of all inferences that reasonably can be derived from the facts alleged in the complaint, the court need not accept inferences that are not supported by such facts, nor must the court accept plaintiff’s legal conclusions cast in the form of factual allegations. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
ARGUMENT I. Federal Defendant Todd Dillard Is Entitled to Qualified Immunity.
Federal Defendant Todd Dillard is entitled to qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 638 (1987); Davis v. Scherer, 468 U.S. 183, 191 (1984), and Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Individually-named federal defendants sued for money damages for violations of constitutional rights are immune from suit under the doctrine of qualified immunity if, inter alia, the complaint fails to allege facts that give rise to the violation of a clearly-established constitutional
6

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or statutory right of which a reasonable person would have known. Saucier v. Katz, 533 U.S. 194, 196 (2001); Harlow, 457 U.S. at 818 (government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known); Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”); Zweibon v. Mitchell, 720 F.2d 162, 168 (D.C. Cir. 1983), cert. denied, 469 U.S. 880 (1984) (“once the trial judge determines the law was not clearly established at the time the contested conduct occurred, the inquiry ceases.”).
Once the individual defendant raises qualified immunity, courts must resolve two issues: (1) whether a constitutional right would have been violated on the facts alleged and, if the violation is established, then (2) whether the right alleged to have been violated was clearly established such that a reasonable person would have known. Saucier, 533 U.S. at 196. For a public official to be liable for damages, that official both must have violated a constitutional right, and that right must have been “clearly established” at the time of the violation – “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. at 640 (“qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law’”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The validity of the qualified immunity analysis “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S. at 639. At the first stage of the inquiry, “courts must not define the relevant constitutional right in overly general
7

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terms, lest they strip the qualified immunity defense of all meaning.” Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir .2001); see International Action Center, 365 F.3d at 25. As the Butera Court explained:
For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Id. (citing Anderson, 483 U.S. at 639). Thus, it is not enough for Plaintiffs here to claim that the searches to which they were subject violated their constitutional rights. Rather, the claimed constitutional right “must be identified ‘at the appropriate level of specificity’ for a court to determine the second prong of the inquiry: whether the right was ‘clearly established.’” Wilson v. Layne, 526 U.S. 603, 615 (1999). As the Supreme Court stated in Anderson, “[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.” 483 U.S. at 640 (citation omitted). Given the state of the law concerning blanket strip searches, and the fact-based analysis associated with existing case authority, the Complaint here does not allege the violation of constitutional or statutory rights that were clearly established under law, or sufficiently clear or apparent at the time of the alleged violation. Defendant Dillard submits that, even assuming the truth of the allegations of the Amended Complaint, “the state of the law [at the relevant time did not give officials] fair warning that their alleged treatment of [the plaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
8

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Any analysis of the constitutionality of prisoner searches necessarily begins with the United States Supreme Court's landmark decision in Bell v. Wolfish, 441 U.S. 520 (1979). In that case, pretrial detainees challenged the constitutionality of numerous conditions of confinement and practices at the New York Metropolitan Correctional Center, a federally-operated, short-term custodial facility in New York City designed primarily to house pretrial detainees. One of the challenged practices the Court addressed was the strip and visual body cavity search conducted on all inmates after every contact with an outside visitor.
In its analysis, the Court strongly emphasized that "maintaining security and preserving internal order and discipline [were] essential goals that may require limitation or retraction of the retained constitutional rights of . . . pretrial detainees." Bell, 441 U.S. at 546. "Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Id. at 546-47 (citations omitted). "Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry," and "[t]he Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees." Id. at 540, 546-47 (citations omitted). "[E]ven when an institutional restriction infringes a specific constitutional guarantee, such as the Fourth Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Id. at 547.
This evaluation, however, according to the Bell Court, was an extremely deferential one. The Court stated that "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve the internal order and discipline and to maintain institutional security." Bell, 441 U.S. at 547 (citations
9

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omitted). "‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.'" Id. at 547-48, quoting Pell v. Procunier, 417 U.S. 817, 827 (1974). The Court noted that "judicial deference [was] accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial." Bell, 441 U.S. at 548 (citation omitted).
The Court held that such a strip search procedure was not an unreasonable search prohibited by the Fourth Amendment. The Court noted that "[t]he test of reasonableness under the Fourth Amendment [was] not capable of precise definition or mechanical application" and that "each case . . . requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Bell, 441 U.S. at 549. The factors that must be considered, the Court held, were "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." Id. at 559.
The Court of Appeals for the D.C. Circuit has not rendered a decision addressing whether a blanket strip search policy violates the Fourth Amendment. Accordingly, the lead federal court in this Circuit has not ruled on the question. Nonetheless, in the years since Bell, a number of federal courts have ruled that the Fourth Amendment precludes these types of searches on arrestees charged with misdemeanors or other minor offenses brought to the jail after arrest unless officials have
10

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reasonable suspicion that the specific arrestee is concealing weapons, drugs or other contraband.6 However, other federal courts have considered the practice in various contexts and determined that there were permissible bases for conducting the searches. And, each case is considered on its own facts and circumstances.
This caselaw has developed in the context of allowing blanket prisoner strip search policies, without individualized assessment, in circumstances where individualized assessment is not readily practical and the risks are substantial. Thus, courts in certain circumstances have upheld the constitutionality of strip searches of detainees, even for those who were charged only with misdemeanors, minor offenses, or crimes not involving violence. These courts have focused on the fact that the detainees searched had already been intermingled with all other prisoners; that they had access through attorneys or others to possible contraband; and that the facility had a history of attempts to introduce contraband.
Thus, in Richerson v. Lexington Fayette Urban County Government, 958 F.Supp. 299 (E.D. Ky. 1996), the plaintiff had been arrested for a non-violent traffic offense and taken to the County Detention Center where he was held in the general population as a pretrial detainee. Afterward, Mr.
6 See Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001); Skurtenis v. Jones, 236 F.2d 678 (11th Cir. 2000); Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997); Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir. 1994); Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993); Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 1992); Masters v. Crouch, 872 F.2d 1248 (6th Cir.), cert. denied, 493 U.S. 977 (1989); Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir. 1988); Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987); Ward v. San Diego County, 791 F.2d 1329 (9th Cir. 1986); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985), cert. denied, 475 U.S. 1066 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 942 (1982).
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Richerson was taken to the County District Court for arraignment. The arraignment was held in the District Court Building, which was connected to the Detention Center by a pedway. The pedway opened into a holding cell adjacent to the courtroom. Plaintiff, along with other detainees, walked across the pedway and was placed in the holding cell, where he had access to his attorney. He was then arraigned in the courtroom, where members of the general public were present. After his arraignment, plaintiff was placed back into the holding cell until all arraignments were completed.
Following his arraignment, Mr. Richerson was subject to a strip search. This search involved Plaintiff removing his jumpsuit and any other clothing. While naked, he and other detainees were made to lift up their arms, open their mouths, lift their tongues, run their fingers through their hair, turn from side to side, lift their genitals and turn around, bend over and spread their buttocks for inspection, and show the bottoms of their feet. Mr. Richerson was then returned to the Detention Center, where he was placed back in the general population.
The Court noted that the County strip searched prisoners only after they had intermingled with other prisoners and had outside access to attorneys and others. The Court upheld the constitutionality of the blanket strip search policy. The Court held that,
in circumstances like those presented here, where pretrial detainees, including those charged with minor, nonviolent offenses, are kept in a detention center’s general population prior to arraignment, and are thereafter put in a position where exposure to the general public presents a very real danger of contraband being passed to a detainee, a policy of strip searching the detainees upon their return from the courthouse and prior to their being placed back in the general population of the detention center is both justified and reasonable. The Court determined that the detention center’s legitimate security interests outweigh[ed] the detainees’ privacy interests in such a situation. Richerson at 307 (emphasis added). See also Dobrowolskyj v. Jefferson County, 823 F.2d 955, 959 (6th Cir. 1987)(upholding constitutionality of strip search of non-serious offenders because County’s
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policy was “a more narrowly drawn policy of searching only those detainees who were required, by force of circumstance, to be moved into the general jail population. . . . The security interests of the jail in conducting a search at this point were strong. [Plaintiff] was about to come into direct contact with the general jail population, including prisoners who would then be moved into all sections of the jail. The jail had legitimate interests in preventing the flow of contraband into the other sections of the jail.”); Simenc v. Sheriff of DuPage County, 1985 WL 4896, slip op. at *3 (N.D. Ill. 1985) (“The policy considerations for conducting strip-searches when detainees have had outside contacts are more compelling than in the case of initial searches of traffic and misdemeanor detainees. When detainees are being transferred from detention facilities to make court appearances there is a legitimate interest in locating contraband that might threaten the safety of transferring police officers or the court.” Simenc at *3, citing Dougherty v. Harris, 476 F.2d 292 (10th Cir. 1972), cert. denied, 414 U.S. 872 (1972).
In a similar case, Roscom v. City of Chicago, 570 F.Supp. 1259 (N.D. Ill.1983), Ms. Roscom was charged with deceptive practice when she wrote a number of checks that had been dishonored by her bank. She was taken to the City jail but later transferred to the County jail, where she was subjected to a strip search pursuant to the County’s policy. The policy allowed such searches either when there was a reasonable suspicion that the inmate might have a weapon or contraband, or when inmates were moving into or out of “high risk areas,” e.g., from the holding cells to the general jail population. She was taken to a room with other females, all of whom were ordered to line up in single file and take off their clothes. After a frontal visual search by the matron, Ms. Roscom was instructed to turn around, spread her legs and bend over for a visual genital area search. Only women
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were in the room when the searches took place, and at no time during the search did anyone touch Ms. Roscom.
The Court applied the Bell balancing test and, noting that the strip search procedure was a legitimate one to insure the security of the County jail, upheld the search. The Court stated that “[i]rrespective of the crimes [with which the detainees were charged], [the] County [jail] may reasonably consider any of them could be carrying weapons or contraband, either brought with the detainee into the County Jail or procured from other persons in the holding cell.” Roscom at 1262. The Court also noted that the County had a legitimate interest in the security of its jail, the strip search was carried out by same-sex personnel, and in a separate room. The strip search was, therefore, constitutionally permissible.
In balancing the government’s need for a particular search against the invasion of personal rights that the search entails, courts have consistently recognized that the general threats posed in the jail context may outweigh an individual’s privacy interests. In other words, these courts have recognized that jail officials are not necessarily required to have a particularized suspicion that a specific arrestee is concealing weapons, drugs, or other contraband before a search will be found reasonable and constitutional.
For example, in Gary v. Sheahan, 1998 WL 547116 (N.D. Ill. 1998), the Court examined the constitutionality of strip searches conducted on female detainees after they had been ordered released from custody by a judge. The Court explained the balancing test as follows:
[I]f jail security is to justify the search the detainee must present some threat to jail security. The facts in the cases where searches have been upheld suggest some reasonable cause on the part of the authorities to suspect that the detainees might be trying to smuggle weapons or contraband into the jail. . . . A person detained for violent crime may presumptively be suspected of carrying a weapon. However, when
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an arrestee is being detained briefly awaiting the posting of bond on a traffic or misdemeanor offense, generally a strip-search can be made only on reasonable suspicion that the arrestee is carrying or concealing a weapon or contraband unless authorities can demonstrate that misdemeanants regularly pose a threat to jail security. Gary at 1998 WL 547116, *13, citing Simenc v. Sheriff of DuPage County, 1985 WL 4896, at *3 (emphasis added). See also N.G. v. Connecticut, 382 F.3d 225 (2nd Cir. 2004) (upheld strip search of juveniles upon initial admission to a detention facility); Smith v. Montgomery County, 643 F.Supp. 435, 439(1986) (“This ‘blanket risk’ approach implicit in the Fourth Amendment balancing test makes particular sense in the jail context because of the magnitude of risks involved.”); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (“the County has not demonstrated that its security interests warrant the serious invasion of privacy inflicted by its policy”– implicitly recognizing class versus individualized suspicion analysis), cert. denied, 471 U.S. 1053 (1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983) (same). The United States District Court for the District of Columbia has upheld the policy requiring a reasonable suspicion to strip search detainees. Citing various authorities, the Court has said “ ‘strip searches are violative of the Fourth Amendment when applied to all arrestees, Stewart v. Lubbock County, Texas, 767 F.2d 152 (5th Cir. 1985), or if only females are subjected to strip search, when similarly situated males are not searched, Mary Beth G. 723 F.2d at 1263, or if all arrestees, even those charged with minor traffic offenses, are routinely searched, Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053 (1985).’” Doe v. Berberich, 704 F.Supp. 269, 271 (D.D.C. Cir. 1988) (search following arrest for possession of marijuana not violated Fourth Amendment). The Court went on to say that there must be a “reasonable suspicion that the category of offenders subject to strip searches might possess weapons or contraband.” Id. In the Doe case,
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even though the offense (possession of a controlled substance) was a misdemeanor, there was reasonable cause to believe that the detainees possessed contraband, therefore, a strip search was within the bounds of the Fourth Amendment. Id. at 272. Further, the Court followed Bell v. Wolfish, and said that “even ‘visual’ body cavity searches of federal pretrial detainees can be conducted on less than probable cause so long as the search is conducted in a reasonable manner.” 441 U.S. at 560.
Thus, under applicable case law, although individualized suspicion is required for prisoner strip searches in many circumstances, it is not clear that a blanket strip search policy is unconstitutional where the circumstances indicate a real security risk if all prisoners are not searched. Based on the decisions discussed above, although individualized suspicion is required for prisoner strip searches in many circumstances, a blanket strip search policy is deemed constitutional where the circumstances indicate a real security risk unless all prisoners, or a certain category of prisoners, are searched. Therefore, Defendant Dillard submits that it was not apparent that a blanket strip search policy was unconstitutional.
In light of the case-specific nature of the fourth amendment analyses undertaken in these cases, and the unique circumstances of the D.C. Superior Court cellblock, Federal Defendants respectfully submit that it was not clearly established that the search policy described in the Amended Complaint violated the Fourth Amendment. The foundation for this conclusion is as follows:
Assuming the truth of the allegations of the Amended Complaint, the searches conducted were consistent with the Bell factors of reasonableness in scope, manner, justification and place. Plaintiffs do not allege that the arrestees searched were required to remove all of their clothing, but
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instead to lower only that clothing sufficient to determine that she was not secreting weapons or contraband. The searches were conducted is a manner so as not unnecessarily to embarrass or humiliate the arrestee to the extent that only women were in the area, and were as minimally intrusive as possible consistent with jail security. The searches were conducted only by same-sex personnel.
The facts and circumstances surrounding the searches, as alleged in the Amended Complaint, were unique and distinguishable from those cases in which the courts have required individualized reasonable suspicion to believe that an arrestee is carrying weapons, contraband, or other drugs to justify a search. Those cases generally involved “new” arrests in which police took arrestees directly to the jail and subjected them to strip searches. In contrast, here MPD and the D.C. Jail deliver arrestees to the D.C. Superior Court, the arrestees were alleged to have been intermingled; there had been outside access by attorneys and others, and prisoners had had the opportunity to secret contraband in the orifices of their bodies. See e.g., Am. Compl. at ¶¶ 70-72.
To say that “[a] detention facility is a unique place fraught with serious security dangers [and that] [s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence,” Bell 441 U.S. at 559, is to understate drastically the conditions at the D.C. Superior Court. The amount and nature of contraband recovered at the USMS cellblock, including from body cavities, is staggering and the danger is real. The prisoners received at the USMS cellblock run the gamut from “protester” to violent sociopath. They invariably have had contact with each other and even the most innocent looking can be preyed upon or be a threat. See e.g., Am. Compl. at ¶¶ 70-72. Likewise, the USMS is informed little about the history or character of each prisoner received. Thus, the only reliable way to assure security in this high-risk environment is to take reasonable steps to
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ensure security. On the unique facts presented here, Defendant Dillard believes that the circumstances in the cellblock pose a sufficient danger to justify the blanket squat searches of prisoners utilized at the USMS cellblock of the District of Columbia Superior Court, even absent individual reasonable suspicion that a particular prisoner was secreting weapons, drugs, or other contraband.
The blanket searches conducted, which were less than full strip searches, were reasonable, such that the officials involved could not be found to have been violating a “clearly established federal statutory or constitutional right” of the detainees. The officers were following clearly established USMS procedures.
Plaintiffs appear to recognize that it is not former United States Marshal Dillard who “participated in making and implementing the policy of subjecting women arrestees to [the searches at issue];” rather, it was the “Doe” defendants. See Amended Complaint at ¶¶ 84 (“[a]gents actually physically conduct . . . searches”), 109 (USMS “employees participated in making and implementing the policy”). Indeed, the United States Marshals Service policy on the issue that was formalized in 1999 makes no distinction between how Deputy Marshals are to treat female and male prisoners. See United States Marshals Service Policy Directive 99-25 (July 7, 1999) at 1, § III(B) (attached hereto) (“This directive applies to all searches of persons, including juveniles.”). T h e r e i s a distinction between the searches of men and women under the policy, in that “[a] strip search should always be conducted by a deputy of the same sex, unless the person conducting the search is a physician, physician’s assistant or nurse.”) Id., at 3, § IV(C)(3). Plaintiffs do not object to the searches because they are conducted by Deputy Marshals of the same gender as the person being searched.
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If Plaintiffs’ equal protection claim is founded on a perceived disparity in the number of searches made of women versus men, then their concern is with a perceived inconsistency in applying the policy. Marshal Dillard is not alleged to have ever actually searched any of the Plaintiffs; and, indeed, he would not have done so, because the policy calls for only female Deputies (or medical personnel) to conduct searches of the female prisoners. Am. Compl. at ¶¶ 87-90. Similarly, the policy quite logically calls for Deputy Marshals (not the U.S. Marshal) to conduct the searches. See Directive 99-25 at 3. Thus, Plaintiffs’ claim against former Marshal Dillard necessarily is that he did not do enough to ensure that the male Deputy Marshals were properly implementing the policy as applied to the men arrestees within the cell block. This amounts to a claim that Mr. Dillard was somehow required personally to oversee the processing of every male through the cell block. Such a standard is not what is required in the prison setting. See Farmer v. Moritsugu, 163 F.3d 610, 613-14 (D.C. Cir. 1998).
In Farmer, the plaintiff argued that the Bureau of Prisons Medical Director was aware of, yet ordered no treatment for, the prisoner’s medical condition. The District Court agreed, finding that Moritsugu effectively “sanction[ed]” the withholding of treatment from Farmer. The Court of Appeals, found, however, that Farmer's claims imply an obligation falling well outside the scope of Moritsugu's role as Medical Director, and, moreover, that Moritsugu's response to Farmer's requests comported with constitutional BOP medical policy. Thus, the Court concluded that Moritsugu's conduct met the standard of “objective legal reasonableness” required to support qualified immunity. Id.
Here, the Plaintiffs suggest that Mr. Dillard was not only required to ensure that a lawful policy was adopted, but also that each male prisoner was searched when the policy permitted. This
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suggestion was much like that rejected in Farmer. The leader of the agency is simply not required to play a role in each day-to-day decision made by all employees under his or her supervision. Farmer, 163 F.3d at 615 (“the most important point in this case is that Moritsugu is not the person within the BOP who determines whether psychotherapy is required in a given case. As Medical Director, overseeing operations in facilities nationwide from his office in Washington, D.C., Moritsugu does not diagnose individual patients; nor does he prescribe treatments for particular patients, except insofar as he may be called upon to approve the recommendation of a treating physician. “)
To hold otherwise would be to countenance personal liability for the supervisor for the actions of those under his supervision. Such a respondeat superior theory of personal liability has been consistently rejected by the Courts in the context of constitutional tort liability. Monell v. Department of Social Services, 436 U.S. 658 (1978); Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993); Meyer v. Reno, 911 F. Supp. 11, 15 (D.D.C. 1996). See also, Simpkins v. District of Columbia Government, 108 F.3d 366, 369 (D.C. Cir. 1997) ("Bivens claims cannot rest merely on respondeat superior . . . The complaint must at least allege that the defendant federal official was personally involved in the illegal conduct."); Boykin v. District of Columbia, 689 F.2d 1092, 1097-99 (D.C. Cir. 1982); Tarpley v. Greene, 684 F.2d 1, 9-11 (D.C. Cir. 1982). In Cameron, the D.C. Circuit dismissed the Attorney General and Director from the suit because the complaint failed to allege their personal involvement and was based solely “on the bare assumption” that policy decisions in the District of Columbia influenced the prisoner’s treatment in a federal prison in Indiana. Id. at 258.
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In the Meyer case, 911 F. Supp. at 15, this Court discussed respondeat superior within the
context of federal inmate lawsuits:
Absent any allegations that defendants Reno and Hawk personally participated in the events which gave rise to the plaintiff's claims, or any corroborative allegations to support the inference that these defendants had notice of or acquiesced in the improper securing of detainers against the plaintiff by their subordinates, dismissal is appropriate. See Haynesworth v. Miller, 820 F.2d 1245, 1259 (D.C. Cir. 1987) (fellow government employees cannot be held liable under the theory of respondeat superior for either constitutional or common law torts); Smith-Bey v. District of Columbia, 546 F. Supp. 813, 814 (D.D.C. 1982) (same). Respondeat superior has been consistently rejected as a basis for the imposition of § 1983 or Bivens liability. See, e.g., Monell v. Dep't of Social Srvcs., 436 U.S. 658, 691 (1978); Rizzo v. Goode, 423 U.S. 362 (1976); Boykin v. District of Columbia, 689 F.2d 1092, 109799 (D.C. Cir. 1982); and Tarpley v. Greene, 684 F.2d 1, 9-11 (D.C. Cir. 1982). Therefore, any potential § 1983 or Bivens claims against these defendants, whose only relationship to the instant litigation is their ultimate supervisory status, must be dismissed.
"Without a showing of direct responsibility for the improper action, liability will not lie against a
supervisory official. A causal connection, or an affirmative link, between the misconduct
complained of and the official sued is necessary." Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983). Individual liability for damages for violation of constitutional rights is predicated upon
personal responsibility. Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir. 1984). Hence, the
Plaintiffs cannot have Mr. Dillard held individually and personally liable for his actions merely as
a supervisor.
II. Plaintiff Failed to State A Claim for Any Civil Rights Violation Under Section 1983
Section 1983 provides:
Every 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, shall be liable to the person injured in an action at law, suit
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in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983 (emphasis added). Thus, § 1983 does not generally apply to federal officials acting under color of federal law. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Rather, by its terms, § 1983 applies only to actions under color of state law and does not ordinarily provide a basis for claims against federal officials. The only possible exception occurs when there is a conspiracy between state and federal officials resulting in an abuse of authority derived from state law. Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969). The legislative history clearly shows that Congress did not intend for Section 1983 to apply against federal actors. Instead, it was promulgated to provide a measure of federal control over state officials who were either unwilling or unable to protect certain individuals against the deprivation of their constitutional rights. Section 1983 provided a remedy where none existed. It provided a mechanism to protect against a state official’s conduct. Federal Defendant Todd Dillard, who is the former U.S. Marshal for the Superior Court of the District of Columbia, is named as a Section 1983 defendant. In this capacity, however, Mr. Dillard would have acted under color of federal law, specifically under color of 28 U.S.C. §§ 561569. It is worthy of note that the authority of United States Marshals and Deputy U.S. Marshals extends beyond the District of Columbia (or whatever district in which they primarily work), to any state in which they may execute the laws of the United States. 28 U.S.C. § 564; United States v. Boettcher, 588 F.2d 89 (4th Cir. 1978) (U.S. Marshal may execute arrest warrants at any place within
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jurisdiction of the United States); United States v. Hanna, 114 WLR 1153 (Super. Ct. 1986) (noting extraterritorial nature of certain Superior Court warrants).
Congress, in describing a 1979 amendment to Section 1983 “makes clear that Federal courts shall have jurisdiction of section 1983 actions against District of Columbia officials acting under authority of local laws, even if those laws were passed by Congress.” H.R. Rep. No. 96-548, at 2 (1979), reprinted in 1979 U.S.C.C.A.N. 2609, 2610.
Thus, the words and history of Section 1983, including the 1979 amendment do not provide for a cause of action under Section 1983 under the circumstances described in Plaintiffs’ Amended Complaint. The purpose of Section 1983 was to provide a cause of action where there was none. Indeed, Congress in 1979 did just that when it again provided individuals within the District of Columbia with a remedy for the deprivation of protected rights where there was none before. In the instant case, Plaintiffs’ remedy, if one exists, was created by the Supreme Court in Bivens. Under proper circumstances, Plaintiffs may pursue a Fourth Amendment claim under the Bivens doctrine against a federal employee in his or her individual capacity, but not a Section 1983 action. See e.g., Berry v. Funk, 146 F.3d 1003, 1013 (D.C. Cir. 1998) (noting that plaintiffs can bring Bivens actions against federal officials and section 1983 actions against state officials); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980) (“Actions of federal officers are outside of [section 1983's] proscriptions.”); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2nd Cir. 1991) (an action brought pursuant to Section 1983 “cannot lie against federal officials”); Heck v. Humphrey, 512 U.S. 477 (1994) (stating that section 1983 provides access to a federal forum for claims of unconstitutional treatment at the hands of state officials); Community For Creative Non-Violence v. Unknown Agents of the United States Marshals Service, 791 F. Supp. 1 (D.D.C. 1992) (the United
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States Marshals Service for the Superior Court of the District of Columbia was acting under color of federal law when Deputy Marshals executed an arrest warrant issued by the D.C. Superior Court).
The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the alleged wrongdoer is clothed with the authority of state law.” Williams v. United States of America, 396 F.3d 412, 414 (D.C. Cir. 2005) (emphasis added) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); West v. Adkins, 487 U.S. 42, 49 (1988); accord Monroe v. Pape, 365 U.S. 167, 187 (1961) (adopting Classic standard for purposes of § 1983) (overruled in part on other grounds); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695-701 (1978)); Polk County v. Dodson, 454 U.S. 312, 317-18 (1981).
The Williams court held that a Section 1983 action could not be maintained against a special police officer employed by the U.S. Government Printing Office, who allegedly unlawfully arrested appellant. 396 F.3d at 413. The Government Printing Office is a federal agency which employed the appellee as a special policeman. Id. Federal law authorized these policemen to
make arrest[s] for violations of laws of the United States, the several States, and the District of Columbia; and enforce the regulations of the Public Printer, including the removal from Government printing office premises of individuals who violate such regulations. The jurisdiction of special policemen in premises occupied by or under the control of the Government Printing Office and adjacent areas shall be concurrent with the jurisdiction of the respective law enforcement agencies where the premises are located. Id. (citing 44 U.S.C. § 317). Williams was arrested by Officer Hardwick and thereafter alleged the deprivation of his Fourth and Fifth Amendment rights in violation of Section 1983. The Court rejected Williams’ contention, holding that Williams could not maintain a cause of action against the officer under Section 1983 and noting that “plaintiffs alleging abuse by federal officials are not
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without a remedy. . . as Williams could have brought an action against Hardwick under Bivens. . .” Id., at 416.
To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, n. 18, 937 (1982); see also Williams, supra., at 414-16. Moreover, a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. See Monroe v. Pape, 365 U.S. at 172. Thus, generally, "a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See, e.g., Parratt v. Taylor, 451 U.S. 527, 535-536 (1981); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
The Ninth Circuit in Tongol v. Usery, 601 F.2d 1091 (9th Cir. 1979), discussed the “color of state law” requirement. Tongol involved state officials who sought to recover overpayments of Federal Supplemental Benefits (“FSB”) under the Emergency Unemployment Compensation Act of 1974. Id. at 1097. The Court held that the state officials who sought to recover these FSB overpayments were empowered to act only by virtue of their authority under state law. Id. The Court went on to hold that “the ‘color of state law’ requirement of section 1983 has consistently been treated as the same thing as the ‘state action’ requirement of the Fourteenth Amendment. [citations omitted]. Id. at 1095. Courts applying the ‘color of state law’ requirement have indicated that the relevant inquiry focuses not on whose law is being implemented, but rather on whether the authority of the state was exerted in enforcing the law. [citations omitted].” Id. at 1097.
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The Third Circuit has held that “there [i]s no set formula for determining whether the employees of an agency with both state and federal characteristics must be examined to consider whether the acts complained of were sufficiently linked to the state.” Johnson v. Orr, 780 F.2d 386, 390 (3rd Cir. 1986). “A crucial inquiry is ‘whether day-to-day operations are supervised by the Federal [or state] government.’” United States v. Orleans, 425 U.S. 807, 815 (1976).
In Case v. Milewski, 327 F. 3d 564, 567 (7th Cir. 2003), the court recognized two circumstances in which a party may be found to act under color of state law. The first is when the states have cloaked the defendants in some degree of authority, normally through employment or some other agency relationship. Id. at 567; see Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994) finding that Chicago police officers were acting under color of state law when “[t]hey were on duty, wearing Chicago police uniforms, driving a marked squad car and were investigating a crime.”); Pickrel v. City of Springfield, Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995) (finding an off-duty Springfield, Illinois police officer could have been acting under color of state law because he was wearing his police uniform and displaying his badge.)
The second circumstance is when the defendants have conspired or acted in concert with state officials to deprive a person of his civil rights. In order to establish a conspiracy, the party must demonstrate that the state officials and the private party somehow reached an understanding to deny a party of his constitutional rights. Case, 327 F.3d 564, 567 [citations omitted]. The court further acknowledged that “although an action brought pursuant to § 1983 cannot lie against federal officers acting under color of federal law, it is assumed that a § 1983 action can lie against federal employees . . . as it can against private individuals . . . if they conspire or act in concert with state officials to deprive a person of her civil rights under color of state law.” (emphasis added).
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When distinguishing between federal and state actors, “[a] crucial inquiry is ‘whether day-today operations are supervised by the Federal [or state] government.’” Johnson v. Orr, 780 F.2d 386, 390 (3rd Cir. 1986). The Deputy Marshals are supervised and controlled by the USMS, not the District of Columbia. Even the D.C. Statute acknowledging that the USMS “serves the courts of the District of Columbia,” also confirms that such service is “subject to the supervision of the Attorney General of the United States.” D.C. Code § 11-1729.
In deed, Plaintiffs concede that “Defendant United States Marshals Service is an agency of the federal government . . ..,” Am. Compl. at ¶ 56, and that “Defendant Todd Dillard is the United States Marshal for the District of Columbia,” id. at ¶ 57. Moreover, the Court need not accept legal conclusions cast in the form of factual allegations. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Where the Court need only take judicial notice of the statutes providing the authority for the U.S. Marshals to act, it is clear that there exists no factual dispute on the issue. Defendant Dillard, as a federal employee, was at all times acting under color of federal law. Importantly, section 1983 does not apply to federal officials because they act purely under color of federal law. See Williams v. United States, 396 F.3d at 414. See also Heck v. Humphrey, 512 U.S. 477, 480 (1994) (stating that section 1983 provides access to a federal forum for claims of unconstitutional treatment at the hands of state officials); Bivens v. Six Unknown Named Agents, 403 U.S. at 398 n.1 (“Petitioner also asserted federal jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), and 28 U.S.C. § 1343(4). Neither will support federal jurisdiction over the claim.”). Accordingly, Plaintiffs’ Section 1983 claim fails to state a claim against Defendant Dillard, because, at all times, he acted under federal, not state, law.
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III. There Is No Article III Jurisdiction over Plaintiffs’ Claims for Injunctive Relief Against the Marshal Service Plaintiffs have conceded that they have no colorable damages action against the USMS under
Section 1983. See Plaintiffs’ Notice, filed May 26, 2006 [dkt. no. 60]. Plaintiffs have affirmed their intention, however, to maintain their claim against the USMS for preliminary and permanent injunctive relief. Id.; see also Am. Compl. at 50. Plaintiffs have done so notwithstanding their own admission that the events to which the Amended Complaint refers “occurred before the last day of April, 2003,” id. ¶ 3, and that in April, 2003, “the Federal Defendants represented [through their United States Justice Department attorneys] to the Plaintiffs and the Court that they stopped the strip search practices described herein,” id. As discussed below, Plaintiffs’ claim for injunctive relief, in the form of an order “enjoin[ing] defendants from pursuing the course of conduct complained of herein,” id. at 50, is subject to dismissal as a matter of law for lack of subject matter jurisdiction because Plaintiffs lack standing to bring such a claim, and because any such claim would be moot.
“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998), quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). A subsidiary threshold question, and a predicate to the determination of justiciability, is whether a plaintiff in federal court has standing to sue, a requirement derived from Article III, § 2's limitations of federal judicial power to cases or controversies. Steel Co., 523 U.S. at 101. The "irreducible constitutional minimum" required to establish Article III standing consists of three components, id. at 102-03, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992):
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-- “First and foremost, there must be alleged . . . an ‘injury in fact’ -- a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Steel Co., 523 U.S. at 103, quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). The allegation of harm must be “particularized.” Lujan v. Defenders of Wildlife, 504 U.S. at 560-61.
-- Second, there must be alleged “a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant.” Steel Co., 523 U.S. at 103, citing Simon v. Eastern Ky. Welfare Rights Organiz., 426 U.S. 26, 41-42 (1976).
-- Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. at 560-61. See also Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 661-62 (D.C. Cir. 1996) (en banc).
The party invoking federal jurisdiction bears the burden of establishing the elements of standing. Steel Co., 523 U.S. at 103-04; Lujan v. Defenders of Wildlife, 504 U.S. at 561. The Court must address standing before the merits. Steel Co., 523 U.S. at 100 n.3, 101. "[A]n inescapable result of any standing doctrine application is that at least some disputes will not receive judicial review." Fla. Audubon Soc., 94 F.3d at 665-66. That the standing analysis "should sometimes dictate this result is not a reason to reject either the result or the analysis." Id.
Related to Article III standing is the doctrine of mootness. The mootness doctrine encompasses circumstances “that destroy the justiciability of a suit previously suitable for determination.” Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3533 (1984) at 211; Mahoney v. Babbitt, 113 F.3d 219, 220 (D.C. Cir. 1997). The doctrine, also derived from Article III, limits federal courts to deciding actual continuing controversies. Mahoney v.
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Babbitt, 113 F.3d at 220-21; Clarke v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990) (en banc)(“[e]ven where litigation poses a live controversy when filed, the doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future’"), quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990). See also Preiser v. Newkirk, 422 U.S. 395, 401 (1975); Tucker v. Phyfer, 819 F .2d 1030, 1033 (11th Cir. 1987) (“The mootness doctrine requires that the plaintiff’s controversy remain live throughout the litigation; once the controversy ceases to exist, the court must dismiss the cause for want of jurisdiction.”).
Plaintiffs have not satisfied the requirements for Article III standing with respect to their claim for injunctive relief against the Marshal Service. In accordance with the standard for judicial review of a motion filed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Court must assume as true Plaintiffs’ factual allegations that all events to which the First Amended Complaint refers took place more than three years ago. See First Amended Complaint ¶ 3. The Court must also deem as true that defendants represented in April 2003, through Justice Department counsel, that they had terminated the alleged “strip search practices described herein.” Id. Having asserted those allegations, Plaintiffs’ failure to allege any fact giving rise to an inference that any such practice has continued at any time during the past three years, or that those practices are continuing today, constitutes an omission so conspicuous as to be dispositive of jurisdiction over Plaintiffs’ claims for an order seeking that those practices be terminated.
For a claim to satisfy the requirements of standing, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. at 560-61. See also Florida Audubon Soc., 94 F.3d 661-62. Plaintiffs’ alleged
30

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injuries would not be redressable by any prospective order of this Court requiring the termination of practices alleged to have been terminated three years ago. No injury alleged in the complaint would be redressed by such an order because all of the named class members were arrested and subjected to the alleged unconstitutional searches years ago, and are no longer being subjected to any such alleged practices.
Moreover, Plaintiffs’ claim of entitlement to such an order is moot. See e.g., People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 421 (D.C. Cir. 2005) (appeal from order granting a preliminary injunction becomes moot when, because of the defendant’s compliance or some other change in circumstances, nothing remains to be enjoined through a permanent injunction). Moreover, the mootness of Plaintiffs’ claim for injunctive relief could not be avoided on any purported ground that the acts alleged as the basis of the named Plaintiffs’ injuries were “‘capable of repetition yet evading review.’” Gittens, 396 F.3d at 421, quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). “One function of the ‘capable of repetition’ doctrine is to satisfy the Constitution’s requirement, set forth in Article III, that courts resolve only continuing controversies.” Gittens, 396 F.3d at 422. “For a controversy or wrong to be ‘capable of repetition,’ there must be at least ‘a reasonable expectation that the same complaining party would be subjected to the same action again.’” Id., citing Weinstein v. Bradford, 423 U.S. 147 (1975). There is no reasonable expectation that the named plaintiffs will be arrested again, much less searched pursuant to an alleged practice the continuation of which is not even alleged in the Amended Complaint. See Am. Compl. at ¶ 3. Indeed, assuming the facts alleged to be true, the Court may reasonably infer, without going beyond the four corners of the Amended Complaint, that any such alleged practice has been terminated, and has been terminated for at least three years. Because this is so, Plaintiffs’
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claims against the USMS for injunctive relief are jurisdictionally barred because Plaintiffs lack
standing to advance them and because they are moot.
IV. Bivens Claims Are Untimely.
Defendants submit that the one-year statute of limitations governs Plaintiffs’ Bivens claims.
When a federal action contains no statute of limitations, courts will ordinarily look to analogous provisions in state law as a source of a federal limitations period. See, e.g., Burnett v. Grattan, 468 U.S. ----, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975); Brown v. United States, 742 F.2d 1498, 1503 (D.C. Cir. 1984) (en banc). Concluding that "damage to reputation ... is central to the [plaintiff's] claim," Opinion at 2, the district court applied the District of Columbia's one year statute of limitations governing defamation actions to Doe's Bivens suit. See D.C. Code § 12-301(4). The D.C. statute of limitations reads, in relevant part: Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:. . .(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment -- 1 year; . . .(8) for which a limitation is not otherwise specially prescribed--3 years. D.C. Code § 12-301. We agree with the district court that the one year limitations period should be applied.
Doe v. United States Department of Justice, 753 F.2d 1092, 1114 & n.28 (D.C. Cir. 1985) (footnote
inserted into text). Here, the allegedly unlawful action took place as early as 1999, i.e., three years
prior to the filing of the Complaint. See Am. Compl. at ¶¶ 3, 20 & 33. The original complaint was
not filed until 2002, well beyond the one-year limitations period for many of the claims.
Federal Defendants recognize that the Supreme Court has reached a different conclusion in
addressing Section 1983 actions. See Wilson v. Garcia, 471 U.S. 261, 271-72 (1985) (applying
statutory construction principles to Section 1983 and concluding that the personal injury limitations
period would presumably apply). A Bivens action, however, is not created by statute; and Plaintiffs’
claims are most like those described in D.C. Code § 12-301(4). See Banks v. Chesapeake and
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Potomac Telephone Co., 802 F.2d 1416, 1429, (D.C. Cir. 1986) (citing McClam, 697 F.2d at 372-74). Courts in other jurisdictions have, in Federal Defendants’ view, incorrectly assumed that the statutory analysis applied in Wilson should also be applied in the Bivens context. See e.g., Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005). To Defendants’ knowledge this Circuit has not accepted this invitation to treat Bivens claims as if they were subject to the statutory analysis applied in Wilson. Bivens claims are uniquely creatures of Federal common law, and as such they cannot and should not be treated uniformly, as contemplated in Wilson. Instead, local law has elected to separate common law claims as subject to differing limitations periods, depending on the nature of the claim. This practice should continue to be followed unless and until the District of Columbia adopts a separate limitations period for Bivens claims. See Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d at 1429; McClam v. Barry, 697 F.2d 366, 372-74 (D.C. Cir. 1983) (false arrest claim most closely analogous to a claim under D.C. Code § 12-301(4)). Thus, all Bivens claims that were over one year old when this action was commenced are subject to dismissal as untimely.
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CONCLUSION WHEREFORE, Federal Defendants respectfully submit that this motion to dismiss should be granted.

Respectfully submitted,

May 31, 2006

/s/ KENNETH L. WAINSTEIN, D.C. Bar # 451058 United States Attorney
/s/ RUDOLPH CONTRERAS, D.C. Bar # 434122 Assistant United States Attorney
/s/ OLIVER W. McDANIEL, D.C. Bar #377360 LISA S. GOLDFLUSS, D.C. Bar #417787 Assistant United States Attorneys Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 514-7151 (202) 514-8780 (Facsimile)

34

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DIANA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA, et al., )

)

Defendants.

)

)

Civil Action No. 02-2364 (RMC)

MEMORANDUM OPINION

This lawsuit challenges actions by Todd Dillard, the former Marshal of the Superior

Court of the District of Columbia, the United States Marshal Service (“USMS”), and the District of

Columbia. Plaintiffs complain that from December 2, 1999 to April 25, 2003 (the “Class Period”), the Superior Court Marshal subjected all female (but not male) arrestees1 to blanket drop, squat, and

cough strip searches, without an individualized finding of reasonable suspicion, and that the District

of Columbia knew or should have known about the illegal searches but nonetheless presented its

arrestees to the Superior Court Marshal. On this factual predicate, Plaintiffs have filed a Motion for

Class Certification [Dkt. # 138].

Plaintiffs propose certification of a “Fifth Amendment Class,” based on alleged

violations of the equal protection component of the Fifth Amendment to the U.S. Constitution,

composed of all female arrestees, regardless of charge, taken to the Superior Court for presentment

1 “Arrestee,” as used herein, is a person who was arrested and brought to D.C. Superior Court for presentment pursuant to Rule 5 of the Superior Court Rules of Criminal Procedure, but had not yet been presented to a judge or magistrate at Superior Court. See Pls.’ Mem. in Supp. of Mot. for Class Certification (“Pls.’ Mem.”) [Dkt. # 138] at 1 n.1.
1

during the Class Period,2 and a “Fourth Amendment Class,” composed of female arrestees, arrested
on charges not involving weapons, drugs, or felony violence, who were taken to the Superior Court for presentment during the Class Period.3
Plaintiffs also seek to certify an “Alternative Fourth Amendment Class,” complaining
that the Superior Court Marshall subjected all arrestees, males as well as females, to the blanket
drop, squat, and cough strip searches, and that the District of Columbia knew or should have known
about the illegal searches, but handed its arrestees over to the Superior Court Marshal during the
Class Period anyway.
Plaintiffs argue that each class – the Fifth Amendment Class, the Fourth Amendment
Class, and the Alternative Fourth Amendment Class – separately meets the requirements as a
“hybrid” class. See Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (courts may adopt a
“hybrid” approach, certifying a Federal Rule of Civil Procedure 23(b)(2) class as to the claims for
2 As set forth in the Second Amended Complaint [Dkt. # 84], the “Fifth Amendment Class” is defined as: Each woman who, during the Class Period . . ., was (i) while in the Superior Court Cell Block or just before being put in the Superior Court Cell Block; (ii) being held for presentment subject to a statute of the District of Columbia; (iii) under similar circumstances as men arrestees; (iv) subjected to a blanket strip, visual body cavity and/or squat search.
Second Am. Compl. ¶ 191. 3 As set forth in the Second Amended Complaint, the “Fourth Amendment Class” is defined as:
Each woman who during the . . . Class Period . . . was or will be, (i) while being held or just before being put in the Superior Court Cell Block; (ii) for presentment under a statute of the District of Columbia; on either (iii)(a) a non drug, non violent traffic offense; (iii)(b) a non drug, non violent misdemeanor; or (iii)(c) a non drug, non violent felony; (iv) was subjected to a blanket strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband. Second Am. Compl. ¶ 178.
2

declaratory or injunctive relief, and a 23(b)(3) class as to the claims for monetary relief, effectively granting 23(b)(3) protections including the right to opt out to class members at the monetary relief stage). Plaintiffs seek injunctive and monetary relief against the District of Columbia and former Superior Court Marshal Dillard, and injunctive relief only against the USMS.
Marshal Dillard and the USMS (collectively, the “Federal Defendants”) and the District of Columbia oppose the motion entirely, arguing, inter alia, that there is no live controversy and that the Plaintiffs lack standing to represent the interest of any future arrestees for purposes of injunctive relief. The District of Columbia further argues that Plaintiffs cannot meet the “adequacy of representation” requirement of Federal Rule of Civil Procedure 23(a)(4). For the reasons that follow, the motion will be granted in part and denied in part.
I. BACKGROUND This case has been pending for over five years. The Plaintiffs and the United States first strove mightily, with yeoman help from the District of Columbia, to identify the female arrestees during the Class Period and then to reach a settlement. Only when those efforts failed unexpectedly did it become necessary to complete discovery and prepare for trial. Plaintiffs allege that almost 16,000 female arrestees were subjected to the drop, squat, and cough strip searches during the period from December 2, 1999, three years before the Complaint was filed, to April 25, 2003, the date Federal Defendants allege they stopped the practice. Pls.’ Mem. at 2, Ex. 24 (Kriegler Aff. ¶ 11). Courts routinely certify strip search class actions similar to this one. See, e.g., Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219 (2d Cir. 2006); Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004); Dodge County of Orange, 226 F.R.D. 177
3

(S.D.N.Y. 2005); Blihovde v. St. Croix County, 219 F.R.D. 607, 622-23 (W.D. Wis. 2003); Bynum
v. District of Columbia, 217 F.R.D. 43 (D.D.C. 2003); Maneely v. City of Newburgh, 208 F.R.D. 69
(S.D.N.Y. 2002).
II. LEGAL STANDARDS
The “party requesting class certification under Rule 23 bears the burden of showing
the existence of a class, that all prerequisites of Rule 23(a) are satisfied and the class falls within one
of the categories of Rule 23(b).” Bynum v. District of Columbia, 214 F.R.D. 27, 30-31 (D.D.C.
2003) (citations omitted).
Under Rule 23(a) of the Federal Rules of Civil Procedure, there are four requirements
for certification of a class:
1. the class is so numerous that joinder of all members is impracticable (“numerosity”);
2. there are questions of law or fact common to the class (“commonality”);
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and
4. the representative parties will fairly and adequately protect the interests of the class (“adequacy”).
Fed. R. Civ. P. 23(a). Plaintiffs must also satisfy at least one of the subdivisions of Rule 23(b). A
plaintiff satisfies Rule 23(b)(2) by showing:
the party opposing the class had 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). A plaintiff satisfies Rule 23(b)(3) by showing:
(1) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
4

Fed. R. Civ. P. 23(b)(3). In deciding a motion for class certification, the “inquiry does not extend to an
examination of the merits of the case. Instead, the legal standard is whether the evidence presented by plaintiffs establishes a ‘reasonable basis for crediting [plaintiffs’] assertions.’” Bynum, 214 F.R.D. at 31 (citing cases); Chang v. United States, 717 F.R.D. 262, 269 (D.D.C. 2003) (“Once the existence of a class has been established, the Court does not consider the merits of the plaintiffs’ claims prior to proceeding to a determination of whether the requirements for class certification set forth in Fed. R. Civ. P. 23(a) and (b) have been met.”). The determination of whether to certify a matter as a class action must be done “at an early practicable time” in the case. See Fed. R. Civ. P. 23(c)(1)(A).
III. ANALYSIS The Federal Defendants resist class certification. Only two of their arguments are serious: First, they contend that there is no live controversy, because Marshal Dillard has retired and the USMS has ceased the practice (i.e., the case is moot); and second, the Federal Defendants contend that the named Plaintiffs do not have standing to represent the interests of future arrestees to support the request for injunctive relief. The District of Columbia argues that the request for Rule 23(b)(2) certification (for injunctive relief) should be denied as moot because the Federal Defendants have changed their search policy. It also argues that there is a lack of predominance of common issues pursuant to Federal Rule of Civil Procedure 23(b)(3) in that there is no evidence concerning the injuries any representative Plaintiff or other class member may have suffered. See District of Columbia’s Mem. in Opp. to Pls.’ Mot. for Class Certification (“D.C. Defs.’ Mem.”) at 5 (“[i]t is this very lack of
5

information that makes it impossible at this stage for the court to determine whether common issues predominate. . . .” (emphasis in original)). Finally, the District of Columbia argues that the Court cannot certify the Alternative Fourth Amendment Class because there is no factual basis to support the theory that males as well as females were subjected to the same blanket search policies. Id. at 6.
The Court agrees that there is a lack of factual support concerning the existence of the Alternative Fourth Amendment Class. Therefore, the Court will deny the request for certification of the Alternative Fourth Amendment Class without prejudice. See Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987) (“some inspection of the circumstances of the case is essential to determine whether the prerequisites of . . . Rule 23 have been met. Necessarily, the Court must examine both the claims presented and the showing in support of class certification for their adherence to the requirements of Rule 23.”). If, during discovery, evidence is produced that supports the existence of this class, the Court may revisit the issue. See Fed. R. Civ. P. 23(c)(1)(C) (“An order [on class certification] may be altered or amended before final judgment.”).
The Court will examine each requirement for class certification for the Fourth and Fifth Amendment Classes in turn.
A. Existence of a Class “It is axiomatic that for a class action to be certified a ‘class’ must exist.” Barnes v.
District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007) (citing Simer v. Rios, 661 F.2d 655, 699 (7th Cir. 1981)); see also Lewis v. Nat’l Football League, 146 F.R.D. 5, 8 (D.D.C. 1992) (clearly defined class is necessary “to ensure that the class is ‘neither amorphous, nor imprecise’”) (internal citation omitted). It is clear that Plaintiffs have fulfilled their obligation in defining the classes such
6

that it is “administratively feasible for the court to determine whether a particular individual is a member.” Bynum, 214 F.R.D. at 31 (citations omitted). The Court is satisfied that Plaintiffs’ proposed class definitions for the Fourth Amendment Class and the Fifth Amendment Class, see supra n.2 & n.3, are tailored properly so that “an individual would be able to determine, simply by reading the definition, whether he or she is a member of the proposed class.” Id. at 32.4
B. Requirements of Rule 23(a) All class actions certified under Rule 23 must meet certain prerequisites listed in
subsection (a): there must be numerosity of class members, common questions of law or fact, the representative(s) must be typical of the class, and his or her representation of the class must be adequate. Fed. R. Civ. P. 23(a).
1. Numerosity Rule 23(a)(1) provides that a class action may be maintained only if “the class is so numerous that joinder of all members is impracticable.” The “numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” See Bynum, 214 F.R.D. at 32 (citations omitted). Generally, “courts have found that a proposed class consisting of at least forty members will satisfy the impracticability requirement.” Id. There is no question that the proposed Fourth Amendment and Fifth Amendment classes here are so numerous that joinder of all members is impracticable. Defendants do not dispute Plaintiffs’ assertion, using data drawn from the D.C. Metropolitan Police Department database system (“MPD Data”) and from the D.C. Superior Court database system (“CIS Data”), that there could be as many as 16,000 members in the Fifth Amendment Class and over 6,000 members in the
4 In the accompanying Order, the Court has made slight modifications to the class definitions in order to reflect the Court’s decisions in the instant Memorandum Opinion.
7

Fourth Amendment Class. See Pls.’ Mem., Ex. 24 (Kriegler Aff. ¶ 11). Furthermore, Plaintiffs have submitted affidavits from numerous individuals who claim to have been subjected to the strip search policy at issue. The Court, at this stage, does not need exact numbers, and understands that the parties are in the process of identifying potential class members. See Bynum, 214 F.R.D. at 32 (citing Kilafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.”)). The Court therefore concludes that the classes proposed by Plaintiffs satisfy the numerosity requirement of Rule 23(a)(1).
2. Commonality and Typicality The commonality requirement of Rule 23(a)(2) states that there must be “questions of law or fact common to the class.” However, it is not necessary that every issue of law or fact be the same for each class member. Rather, if “there is some aspect or feature of the claims which is common to all,” the requirement is satisfied. Barnes, 242 F.R.D. at 121 (citing Pendleton v. Schlesinger, 73 F.R.D. 506, 508 (D.D.C. 1977) (emphasis added)); Bynum, 214 F.R.D. at 32 (factual variations among class members does not defeat the commonality requirement so long as a single aspect or feature of the claim of the claim is common to all proposed class members). The typicality requirement of Rule 23(a)(3) is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 691 (S.D.N.Y. 1996). Because “[t]he crux of both commonality and typicality requirements is to ensure that the maintenance of a class action is economical, and that the named Plaintiffs’ claims and the class
8

claims are so inter-related that the interest of the class members will be fairly and adequately protected in their absence,” it is proper to discuss them together. Dodge, 226 F.R.D. at 180.
Plaintiffs have successfully established that there is sufficient commonality and typicality for both classes. First, “a strip-search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual,” Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996), and this intrusion is alleged to have been commonly experienced by all members of both classes. Further, Plaintiffs have laid out several issues of law and fact that are common to all members of the two respective classes, including, obviously, whether the alleged policy violated the Fourth and Fifth Amendments. See Pls.’ Mem. at 21-23, 39.
Regarding typicality, Rule 23 does not require that the representative plaintiffs endured precisely the same injuries that may have been sustained by other class members, only that the harm complained of be common to the class, and that the named plaintiffs demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical. Bynum, 214 F.R.D. at 34. The typicality requirement is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol, 929 F. Supp. at 691. Here, Plaintiffs allege that the same course of conduct caused injury to the Plaintiffs in both classes, and that the causation claims are common to all. The claims of the named Plaintiffs are founded upon the same legal theory as those of class members – that Defendants violated the Forth and Fifth Amendments when they subjected Plaintiffs and all class members to blanket drop, squat, and cough strip searches prior to presentment. Although the circumstances of the strip searches may have varied by some degree, demonstrating typicality “does not mean showing that there are no factual variations between the claims of the plaintiffs.” Bynum, 214 F.R.D. at 35.
9

Accordingly, the Court finds that Plaintiffs have satisfied the commonality and typicality requirements of Rule 23(a).
3. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that certified classes have adequate representation. This requirement involves both adequacy of the named plaintiffs and adequacy of counsel. The requirement is met when: (1) there is no conflict of interest between the legal interests of the named plaintiffs and those of the proposed class; and (2) counsel for the class is competent to represent the class. Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997). The Court sees no conflicts of interest between the representative Plaintiffs and the proposed Fourth and Fifth Amendment Classes. The issues presented by the named representatives mirror those faced by the putative class members. Also, the Court sees no conflict in these Plaintiffs ultimately representing the Alternative Fourth Amendment Class if, as the Federal Defendants have hinted, see Federal Defs.’ Mem. in Opp’n to Pls.’ Mot. for Class Certification (“Fed. Defs.’ Mem.”) at 3, but the existing record contradicts, males were subjected to the same blanket drop, squat, and cough procedure. However, any alleged conflict can be resolved at a later date if, in fact, the Court revisits the issue of certification of the Alternative Fourth Amendment Class. Plaintiffs’ counsel, experienced civil rights class action litigators who have participated in multiple class actions, are capable of representing the interests of the class in a satisfactory manner and Defendants do not argue otherwise. The Court is satisfied that the Plaintiffs have fulfilled the requirements of Rule 23(a)(4).
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C. Rule 23(b) Requirements After the requirements under Rule 23(a) are met, a putative class must demonstrate
that it fits under one of Rule 23(b)’s class types. Plaintiffs seek to certify the Fourth and Fifth Amendment Classes as “hybrid classes” under both Rules 23(b)(2) and (b)(3). For the reasons that follow, the Court will deny this request for “hybrid class” certification and will certify both classes under Rule 23(b)(3) only.
1. Rule 23(b)(2) Requirements i. Appropriateness of Equitable Relief
To certify a Rule 23(b)(2) class for injunctive or declaratory relief, Plaintiffs must demonstrate 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); Barnes, 242 F.R.D. at 122-23. Both the Federal Defendants and the District of Columbia argue against the certification of Rule 23(b)(2) injunctive relief classes, contending that the case is moot because the practice has stopped. Federal Defendants also argue that Plaintiffs lack standing to represent the interests of future arrestees to bring a claim for injunctive relief. For the reasons stated below,5 the Court concludes that the claim for injunctive relief is not moot. However, because Plaintiffs lack standing, the Court will not certify Rule 23(b)(2) classes for injunctive relief.
5
Although the Court does not assess the merits of Plaintiffs’ claims now, it is appropriate at the class certification stage to discuss justiciability concerns. See, e.g., In re Lorezapam & Clorazepate Antitrust Litigation, 202 F.R.D. 12, 22 (D.D.C. 2001); Prado-Steinman v. Bush, 221 F.3d 1266, 1280 (11th Cir. 2000) (“[A]ny analysis of class certification must begin with the issue of standing.”); Cruz v. Am. Airlines, Inc., 356 F.3d 320, 331 (D.C. Cir. 2004) (plaintiffs’ lack of standing disposed of plaintiffs’ class certification arguments).
11

ii. Mootness There is no dispute over the facts that Marshal Dillard has retired and that the USMS stopped performing these blanket searches in 2003, after this lawsuit was filed. Superior Court Marshal Stephen Conboy attests that he has no plans to reinstate the policy. See Fed. Defs.’ Mem., Declaration of Stephen T. Conboy (“Conboy Decl.”) ¶¶ 2-5. However, these facts alone do not moot Plaintiffs’ Fourth Amendment Claim for injunctive relief. In order to assert claims on behalf of a class, a named plaintiff must have personally sustained, or be in immediate danger of sustaining, “some direct injury as a result of the challenged statute or official conduct.” Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001) (citations omitted). The harm must constitute “actual injury.” Id. To obtain prospective injunctive relief, a plaintiff must demonstrate “that [she] is realistically threatened by repetition of [the violation].” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Even where a suit presented a live controversy when filed, the mootness doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will not affect the parties’ rights presently and will not have a “morethan-speculative” chance of affecting them in the future. Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990). A case is moot if a defendant can demonstrate that two conditions have been met: (1) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation; and (2) there is no reasonable expectation that the alleged wrong will be repeated. Doe v. Harris, 696 F.2d 109, 111 (D.C. Cir. 1982) (citing City of Los Angeles, 440 U.S. at 631). However, “[i]t is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts
12

would be compelled to leave the defendant free to return to his old ways.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (citations omitted; internal quotation marks
and ellipses omitted). “The case may nevertheless be moot if the defendant can demonstrate that
‘there is no reasonable expectation that the wrong will be repeated.’” United States v. W.T. Grant
Co., 345 U.S. 630, 632 (1953) (citation omitted).
Plaintiffs argue that their case is not moot because the Defendants continue to assert
that the challenged practices were fully constitutional, thus leaving Defendants free to resume the
objectionable searches after dismissal. See Pls.’ Reply in Supp. of Mot. for Class Certification
(“Pls.’ Reply”) at 7. Plaintiffs also point out that some of the named Plaintiffs, and certainly many
of the putative class, are recidivists who can expect to be presented at Superior Court in the future
where a resumed search practice would once against violate their constitutional rights. Id. at 6.
Finally, Plaintiffs note that “[t]he affidavit from Stephen Conboy says he has no plans to reinstitute
the policy, but does not state categorically that he will not.” Id. at 2. Marshal Conboy, serving as
Acting Superior Court Marshal and Superior Court Marshal since February 2004, attests:
Several years ago, [the District of Columbia Superior Court (“DCSC”)] instituted a new policy of body searches that discontinued the practice of conducting “strip searches” of arrestees placed in DCSC custody in the DCSC cellblock in the absence of an individualized finding of reasonable suspicion, if not probable cause.
The current DCSC policy and practice (I) [sic] permits a strip search only upon an individualized finding of reasonable suspicion, if not probable cause; and (ii) insures that such searches will be applied even-handedly to both men and women arrestees and detainees. This policy has been enforced and uniformly applied by all DCSC cellblock personnel since I assumed the position of Acting United States Marshal.
Based on the current DCSC policy and practice, it is unlikely that arrestees in the custody of DCSC personnel in the DCSC cellblock
13

will be subjected to strip searches which are not justified by reasonable suspicion in the future. I have no plan or desire, [sic] to modify the current policy or practice that limits strip searches as described in this declaration.
Fed. Defs.’ Mem., Declaration of Stephen T. Conboy (“Conboy Decl.”) ¶¶ 2-5. The Court finds that Marshal Conboy’s statement has insufficient finality for either
the Plaintiffs or the Court to be certain that the Superior Court Marshal will not revert to the prior search policies. The Marshal cannot be left “free to return to his old ways.” Friends of the Earth, Inc., 528 U.S. at 632; see also City of Los Angeles, 440 U.S. at 631 (“[T]he case is not moot, since the moratorium by its terms is not permanent. Intervening events have not ‘irrevocably eradicated the effects of the alleged violation.’”) (citation omitted). The Court finds that Plaintiffs’ claims for injunctive relief are not moot. However, despite not being moot, Plaintiffs lack standing to bring such claims for injunctive relief for the reasons stated below.
iii. Standing In a suit to obtain prospective injunctive relief, a plaintiff must show a real and immediate threat of future injury to establish a viable case or controversy. City of Los Angeles, 461 U.S. at 103-04; Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156, 166-67 (D.C. Cir. 1997). In order to meet the constitutional minimum of standing to seek injunctive relief, Plaintiffs must establish that they have “sustained” or are “immediately in danger of sustaining some direct injury as the result of the challenged official conduct.” City of Los Angeles, 461 U.S. at 101-02 (1983) (citations omitted). In doing so, Plaintiffs cannot simply rely on past injury to show standing. Instead, Plaintiffs must show a likelihood that they will be injured in the future. See O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (holding that “past exposure to illegal conduct does not in
14

itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects”). Abstract injury is insufficient to establish standing. The “injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles, 461 U.S. at 194. The likelihood that Plaintiffs may be arrested again is insufficient to overcome this requirement: “the threat to the plaintiffs [is] not sufficiently real and immediate to show an existing controversy simply because they anticipate violating criminal statutes” in the future. Id. (internal quotation marks and citations omitted).
Entitlement to injunctive relief is a question of equity and requires “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” City of Los Angeles, 461 U.S. at 104 (citations omitted). These standards have not been met here. A court assumes that a plaintiff will obey the law and avoid prosecution. Id. Furthermore, under Superior Court Marshal Conboy, the old practices have been scrapped. While they could be renewed, there is nothing in the record to demonstrate the kinds of “immediacy and reality” to this possibility that is required for equitable relief. Id.; see also Smook v. Minnehaha County, 457 F.3d 806, 816 (8th Cir. 2006) (“Absent a sufficient allegation that [plaintiffs] are likely to be strip searched . . . in the future, they are no more entitled to an injunction than any other citizen.”).
Finding that the Plaintiffs lack standing to obtain prospective injunctive relief, the Court declines to certify Rule 23(b)(2) classes, and will dismiss the USMS from this lawsuit.
2. Rule 23(b)(3) Requirements Despite the fact that Plaintiffs lack standing to seek equitable relief, they do not have to wait another day to litigate their right to damages. The Court will certify the Fourth and Fifth Amendment Classes under Rule 23(b)(3) because: (1) class-wide issues predominate and (2) a class
15

action is “superior to other available methods to the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3); see Bynum, 214 F.R.D. at 39.
i. Predominance of Common Questions at Law “In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). The predominance requirement is “more stringent” and “far more demanding” than the commonality requirement of Rule 23(a). Id. at 609, 623. Federal Defendants argue that Plaintiffs have failed the predominance test because individualized determinations will be necessary on the issue of liability. See Fed. Defs.’ Mem. at 2 (“[W]hat is clear in this action is that the predominant issues will focus on whether each specific prisoner was searched without a sufficient basis under the Constitution. The factual inquiry for each will entail detailed and individualized assessments of all facts and circumstances known about the Plaintiffs and those with whom they had contact as they entered the criminal justice system. These extremely prisoner-specific inquiries predominate in the case and preclude class-action treatment.”). Although Federal Defendants argue that the question of “whether Marshal Dillard and the USMS violated any potential claimants’ constitutional rights . . . should turn on individualized determinations of whether USMS personnel had a legitimate basis to conduct such a search as to each arrestee,” the Court disagrees. Plaintiffs are challenging whether Defendant Dillard, during the Class Period, had a policy or practice of subjecting female arrestees, regardless of charge, to the blanket drop, squat, and cough searches, and whether these searches violated the Constitution. These
16

issues are subject to generalized proof. Bynum, 214 F.R.D. at 39. Moreover, the Federal Defendants’ assertion that the Marshals made “individualized determinations . . . as to each arrestee,” which will require “extremely prisoner-specific inquiries” is unsupported by any allegation in the Second Amended Complaint or the record as it has developed. See Fed Defs.’ Mem. at 3.
The District of Columbia also argues that Plaintiffs have failed the predominance test, alleging that Plaintiffs have not produced sufficient evidence that common issues predominate on damages. See D.C. Defs.’ Mem. at 3 (“Up to this point, the plaintiffs have not presented sufficient evidence for the court to determine whether common issues predominate pursuant to Rule 23(b)(3). . . . [N]one of the named plaintiffs [has] given testimony regarding their experience in the Superior Court cellblock or about any ‘injury they may have suffered as a result of the search . . . .’”). The Court disagrees that determination of damages in this case would require individualization such that Plaintiffs cannot establish predominance. First, it may be the case that the “determination of damages in this case [does not] require individualization.” See Dellums v. Powell, 566 F.2d 167, 189 (D.C. Cir. 1977). Moreover, the mere existence of individual damages issues in a Rule 23(b)(3) class does not cause individual issues to predominate over common issues on liability or causation. See Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997). There are many ways of dealing with possible individual damages issues, if necessary, such as “(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.” See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). Plaintiffs have proposed using a damages matrix in which a jury could set a schedule
17

of damages for class members. See Pls.’ Mem., Ex. 14 (Pls.’ Proposed Trial Plan) (citing Dellums, 566 F.2d at 208), or trying damages on a class-wide basis using statistical sampling. The Court reserves ruling on such methodology issues for another day but is satisfied that Plaintiffs have satisfied the predominance requirement for the purposes of class certification.
ii. Whether Class Action is Superior The second prong of Rule 23(b)(3) is superiority. Under this requirement, “maintaining the present action as a class action must be deemed by the court to be superior to other available methods of adjudication. A case will often meet this standard when ‘common questions of law or fact permit the court to consolidate otherwise identical actions into a single efficient unit.’” Bynum, 217 F.R.D. at 49 (citations omitted). The Court has already concluded that the size of the putative class makes joinder of individual parties impracticable and that there are issues of law and fact common to the potential class members. It is also likely that the economic stake of each putative Plaintiff would be too small to suggest that individual suits should be brought. See Bynum, 217 F.R.D. at 49. Under these circumstances, the Court concludes that Plaintiffs have satisfied their burden of showing that class treatment is superior. See Wells v. Allstate Ins. Co., 210 F.R.D. 1, 12 (D.D.C. 2002) (“Rule 23(b)(3) favors class actions where common questions of law or fact permit the court to ‘consolidate otherwise identical actions into a single efficient unit.’”). D. Notice to Potential Class Members Federal Rule of Civil Procedure 23(c)(2) provides that, in any class action maintained under Rule 23(b)(3), notice shall be given to the class in the best practicable manner. As required by the Rule, the notice shall advise each potential class member that she can choose to opt out of the
18

class; that the judgment, whether favorable or not, will bind members who choose not to opt out; and that individual class members who do not request inclusion may, if they so desire, enter an appearance through counsel. Fed. R. Civ. P. 23(c)(2). Within 30 days of this Memorandum Opinion, the parties shall file a joint proposal regarding class notification procedures. If the parties are unable to reach agreement on the terms of the proposed order, the parties shall file separate orders. The Court notes that Plaintiffs have submitted a Proposed Trial Plan, see Pls.’ Mem., Ex. 14 [Dkt. # 139], detailing proposals for, inter alia, possible bifurcation of a trial into liability and damages phases and methodologies for potential damage calculations. The Court reserves ruling on those proposals. However, if the parties believe that these issues must be resolved before the process for notification may commence, that should be detailed in the forthcoming joint or separate proposals.
E. Appointment of Class Counsel Federal Rule of Civil Procedure 23(g)(1)(C)(i) requires the Court to appoint adequate
class counsel to represent the class after considering: “(1) the work counsel has done in identifying or investigating potential claims in this action, (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel’s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.” See Bynum v. District of Columbia, 384 F. Supp. 2d 342, 366 (D.D.C. 2005). The court may consider any “other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(C)(ii).
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As discussed above, the Court is satisfied that Plaintiffs’ counsel are experienced class action litigators who are competent to represent Plaintiffs. As such, they will be appointed class counsel for the Fourth and Fifth Amendment Classes.
IV. CONCLUSION Plaintiffs’ claims for injunctive and declaratory relief must be dismissed for lack of standing. Because Plaintiffs sought only such equitable relief from the USMS, the USMS will be dismissed from this case. The Court will certify Rule 23(b)(3) classes for both the Fourth Amendment and Fifth Amendment Classes. The Court is satisfied that Plaintiffs’ proposed class definitions for these two classes, with some modification, are adequate pursuant to Federal Rule of Civil Procedure 23(c)(1)(B). Plaintiffs’ motion for certification of an Alternative Fourth Amendment Class of men and women will be denied without prejudice for lack of any factual basis beyond the allegations in the Second Amended Complaint. Plaintiffs’ counsels William Claiborne and Barrett Litt will be appointed class counsel. A memorializing order accompanies this Memorandum Opinion.

Dated: February 8, 2008

/s/ ROSEMARY M. COLLYER United States District Judge

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 Case 1:02-cv-02364-RMC Document 159 Filed 02/08/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DIANA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA, et al., )

)

Defendants.

)

)

Civil Action No. 02-2364 (RMC)

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED

that Plaintiffs’ Motion for Class Certification [Dkt. # 138] is GRANTED in part and DENIED in

part; and it is

FURTHER ORDERED that the Court adopts the following definitions for the Fourth

Amendment and Fifth Amendment Classes, respectively:

Each woman who, during the Class Period (December 2, 1999, until April 25, 2003), was, (i) held in the Superior Court Cell Block; (ii) awaiting presentment under a statute of the District of Columbia; (iii) subjected to a blanket strip, visual body cavity and/or squat search; (iv) under similar circumstances for which male arrestees were not subjected to a blanket strip, visual body cavity and/or squat search.

Each woman who, during the Class Period (December 2, 1999, until April 25, 2003), was, (i) held in the Superior Court Cell Block; (ii) awaiting presentment under a statute of the District of Columbia on either (a) a non-drug, non-violent traffic offense, (b) a non-drug, nonviolent misdemeanor, or (c) a non-drug, non-violent felony; and (iii) subjected to a blanket strip, visual body cavity and/or squat search; (iv) without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.

It is FURTHER ORDERED that the classes above be maintained as a class action pursuant
1

Case 1:02-cv-02364-RMC Document 159 Filed 02/08/08 Page 2 of 2

to Rule 23(b)(3) of the Federal Rules of Civil Procedure; and it is

FURTHER ORDERED that Plaintiffs’ request to certify the Alternative Fourth Amendment

Class is DENIED without prejudice; and it is

FURTHER ORDERED that the United States Marshals Service is hereby DISMISSED

from this case; and it is

FURTHER ORDERED that Rubbiya Muhammed and Tonya Cecelia Mack are hereby

certified as the named representatives of the Fourth Amendment Class; and it is

FURTHER ORDERED that Rubbiya Muhammed, Tonya Cecelia Mack, Laura Lambert,

Dianne Wilkes, Vickie Brooks, Keisha Holloway, and Donna Curtis are hereby certified as the named

representatives of the above Fifth Amendment Class; and it is

FURTHER ORDERED that William Claiborne and Barrett S. Litt shall serve as class counsel

in this action; and it is

FURTHER ORDERED that within 30 days of this Order, the parties shall file a joint proposal

regarding class notification procedures. If the parties are unable to reach agreement on the terms of

a proposed order, the parties shall file separate proposed orders; and it is

FURTHER ORDERED that the Court reserves ruling on Plaintiffs’ Proposed Trial Plan. See

Pls.’ Mem., Ex. 14 [Dkt. # 139].

SO ORDERED.

Dated: February 8, 2008

/s/ ROSEMARY M. COLLYER United States District Judge

2

 
 CasCea1s:e021-:c0v2--0c2v3-06243-R64M-RCMCDoDcoucmuemnet n1t61263 FFiilleedd 0022//2299//200808PagPea1geof13of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________

)

DIANNA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

___________________________________ )

Civil Action No: 02-2364 (RMC)

DISTRICT OF COLUMBIA’S CROSS-CLAIM AGAINST TODD DILLARD IN HIS INDIVIDUAL AND OFFICIAL CAPACITY

Plaintiffs filed their Second Amended Complaint against the District of Columbia on May 24, 2007, for injuries sustained when they were subjected to alleged unconstitutional strip searches and seizures, as set forth in their Second Amended Complaint. The District of Columbia files this cross-claim against Todd Dillard under Fed. Civ. P. Rule 13(g) and states as follows:
1. Plaintiffs have sued Todd Dillard, in his individual and official capacities, the United States Marshals Service, and the District of Columbia under the theory that the defendants caused them (separately and concurrently) to be subjected strip searches at the D.C. Superior Court cellblock in violation of the 4th and 5th amendments. See Second Amended Complaint, generally. On February 8, 2008, the Court dismissed the United States Marshals Service as a party to this lawsuit. See Docket #158.
2. The District denies that the plaintiffs are entitled to recover at all. However, in the event that plaintiffs secures a judgment against defendant District of Columbia, the District is

CasCea1s:e021-:c0v2--0c2v3-06243-R64M-RCMCDoDcoucmuemnet n1t61263 FFiilleedd 0022//2299//200808PagPea2geof23of 3
entitled to contribution and/or indemnification from co-defendant Todd Dillard for any sums, plus interest and costs, adjudged against it in favor of the plaintiffs since the actions of the codefendant were the proximate cause of plaintiffs injuries and damages, and any attributable acts of the District of Columbia were passive and secondary under plaintiff’s theory of joint liability and/or secondary liability. Specifically, it is alleged that the co-defendant violated the 4th and 5th amendments by instituting and implementing a policy which subjected the plaintiffs, all women, to strip searches without individualized suspicion. The co-defendant is liable to the District for all, or part of the claims asserted by the plaintiff against the District of Columbia in this action, by virtue of his practice and policy.
3. Furthermore, the District is entitled to contribution and/or indemnification from co-defendant Todd Dillard, to the extent Todd Dillard breached any duty owed to the District, contractual or otherwise, express or implied, that proximately caused the plaintiffs’ injuries and damages.
4. Both contribution and indemnity are available forms of relief under the laws of the District of Columbia. See Grogan v. General Maintenance Service Co., 763 F.2d 444, 449 (D.C. Cir.1985), Rose v. Hakim, 335 F. Supp. 1221, 1231-33 (D.D.C 1971).
WHEREFORE, should judgment be returned in favor of plaintiffs and against the District of Columbia, this defendant and cross-claimant demands contribution and/or indemnity against co-defendant Todd Dillard in both his individual and official capacities. To the extent the Court dismisses Todd Dillard in his official capacity, the District reserves the right to file a third party action against Todd Dillard in his official capacity or any other party for the reasons articulated herein.
Respectfully submitted,

CasCea1s:e021-:c0v2--0c2v3-06243-R64M-RCMCDoDcoucmuemnet n1t61263 FFiilleedd 0022//2299//200808PagPea3geof33of 3

P
GEOR
ELLEN Chief,
LEAH 441 Sixth Washington,

ETER J. NICKLES Attorney General for the District of Columbia
GE C. VALENTINE Deputy Attorney General, Civil Litigation Division
/s/ Ellen Efros______________ EFROS [250746] Equity, Section I
/s/ Leah Taylor__________ BROWNLEE TAYLOR [488966] Assistant Attorney General 4th Street, N.W. Floor South
D.C. 20001 (202) 724-7854; (202) 727-6295 leah.taylor@dc.gov

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANNA JOHNSON, et al., Plaintiffs,
v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, et al.,
Defendants.

)

)

)

)

)

)

Civil Action No. 02-2364 (RMC)

)

)

)

)

)

)

MEMORANDUM OPINION The United States Marshal for the Superior Court of the District of Columbia (“Superior Court Marshal”) is a federal official. Wishing that were not so, Plaintiffs sue the District of Columbia for the actions of former Superior Court Marshal Todd Dillard in conducting strip searches of all women awaiting presentment to a Superior Court judge, without reasonable and particularized suspicion that any woman was carrying contraband on her person and without subjecting men arrestees to the same strip searches. These actions are alleged to have violated the Fourth and Fifth Amendment rights of the women, who seek to recover money damages from the District of Columbia pursuant to 42 U.S.C. § 1983. The District of Columbia cannot be liable to Plaintiffs as a matter of law on any of the theories they advance, however, inasmuch as Marshal Dillard was a federal official and not an employee, servant, agent or actor under the control of the District of Columbia, and inasmuch as the District of Columbia had no choice but to turn over arrestees to the Superior Court Marshal for presentment. Therefore, the Court will grant the District of Columbia’s motion for summary judgment.

I. FACTS Plaintiffs are women who were arrested in the District of Columbia, taken to the Superior Court of the District of Columbia for presentment, and subjected to strip, visual body cavity and/or squat searches by Superior Court Marshal Dillard while being held in the Superior Court cellblock awaiting presentment. Plaintiffs are proceeding as two classes, a Fourth and a Fifth Amendment Class.1 The Fourth Amendment Class consists of all women who, between December 2, 1999 and April 25, 2003, were held for presentment in the cellblock of the Superior Court for an offense that did not involve drugs or violence and who were subjected to a blanket policy of strip, visual body cavity search and/or squat search without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband. The Fifth Amendment Class consists of all women arrestees who, during the same time frame, were held for presentment in the cellblock of the Superior Court and who were subjected to a blanket policy of strip, visual body cavity and/or squat search under similar circumstances for which men arrestees were not subjected to a similar policy of blanket strip, visual body cavity and/or squat searches. Plaintiffs seek to hold the District of Columbia liable for the strip searches pursuant to 42 U.S.C. § 1983 on three theories: (1) that the office of the Superior Court Marshal is part of the organic government of the District of Columbia; (2) that Marshal Dillard was a joint actor with the District of Columbia in handling pre-presentment arrestees; and (3) that the District of Columbia entrusted its pre-presentment arrestees to the custody of the Superior Court Marshal when it knew
1 By Order dated February 8, 2008, the Court granted Plaintiffs’ motion to certify these classes and declined to certify an Alternative Fourth Amendment class that would have included men. See Dkt. # 159. The Court also dismissed claims for injunctive relief against the United States Marshal Service. See id.
2

or should have known about the strip searches. The District filed a motion for summary judgment, arguing that it cannot be held liable as a matter of law under any of those theories. After briefing was completed, the Court held oral argument on October 7, 2008.
II. SUMMARY JUDGMENT STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a
3

showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. ANALYSIS The District of Columbia occupies a unique place in the United States, neither a State nor a Territory but the “Seat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17. The Constitution reserves to Congress the power “to exercise exclusive Legislation in all cases whatsoever over such District . . . .” Id. Thus, Congress exercises plenary power over the District of Columbia, establishing a relationship quite different than the one that exists between the federal government and the States. See O’Donoghue v. United States, 289 U.S. 516, 539 (1933). “The constitutional grant sanctions congressional establishment of all of the trappings of municipal authority in Washington, including the creation and oversight of all three branches of the District’s government.” Steven M. Schneebaum, The Legal and Constitutional Foundations for the District of Columbia Judicial Branch, 11 UDC/DCSL L. Rev. 13, 13 (2008). The peculiarity of the relationship comes sharply into focus when exploring the legal foundations for the local judiciary in the District of Columbia and the Superior Court Marshal. A brief history of those legal foundations is necessary to place the parties’ arguments in context.
4

A. Legal Foundations for the District of Columbia Courts and Superior Court Marshal Prior to Congress’s enactment of the District of Columbia Court Reform and Criminal
Procedure Act of 1970 (“Court Reorganization Act”), Pub. L. No. 91-358, 84 Stat. 473 (1970), “the courts charged with adjudicating local criminal prosecutions and revolving local civil disputes were a hybrid creature.” Schneebaum, 11 UDC/DCSL L. Rev. at 15. “It could be said of them both that they were part of the congressional mandate to oversee the District of Columbia, and they were fullyfledged stars in the federal judicial galaxy.” Id.
The Court Reorganization Act brought fundamental changes, creating two new Article I courts for the District of Columbia: the Superior Court and the Court of Appeals, which were formally separated from appellate review by the federal District Court and Circuit Court of Appeals. See id. at 16. Judges for the local District of Columbia courts were to be nominated by the President and subject to confirmation by the Senate. See id.; D.C. Code § 11-1501(a). “Congress expressly noted in the statute that it was exercising its powers under Article I, § 8, clause 17 in amending the D.C. Code to incorporate this latest overhaul of the third branch.” Schneebaum, 11 UDC/DCSL L. Rev. at 16; see D.C. Code § 11-101(2) (establishing the local District of Columbia courts “pursuant to Article I of the Constitution”); see also Palmore v. United States, 411 U.S. 389, 398 (1973) (noting same); Jenkins v. Wash. Convention Ctr., 236 F.3d 6, 10 (D.C. Cir. 2001) (noting same).
Despite these fundamental changes, “there was no question that the Court Reorganization Act was not promoted by its sponsors as a home rule measure . . . .” Schneebaum, 11 UDC/DCSL L. Rev. at 17. As particularly relevant here, the Court Reorganization Act specified
5

that “[t]he United States Marshal for the District of Columbia shall continue to serve the courts of the District of Columbia, subject to the supervision of the Attorney General of the United States.” Pub. L. No. 91-358, tit. 1, § 111, 84 Stat. 473, 512 (1970) (codified at D.C. Code § 11-1729).
Home rule came to the District of Columbia three years later when Congress passed the District of Columbia Self-Government and Governmental Reorganization Act of 1973 (“Home Rule Act”), Pub. L. No. 93-198, 87 Stat. 774 (1973). For purposes of this dispute, only certain provisions of the Home Rule Act are relevant. The Act established a Judicial Nomination Commission of seven members to send three names to the President whenever a vacancy occurs on a local court. See Pub. L. No. 93-198, tit. IV, § 434, 87 Stat. 774, 796 (codified at D.C. Code § 1204.34(a), (d)(1)). Although the President continues to name a judge for the District of Columbia local courts with the advice and consent of the Senate, the President’s choice is constricted to one of the three persons recommended by the Judicial Nomination Commission. See id. at § 433, 87 Stat. at 795 (codified at D.C. Code § 1-204.33(a)).
It was not accidental that Congress retained the role of the President and Senate in the selection and appointment of judges to the District of Columbia Superior Court and Court of Appeals. “The parallel between the District government and those of the fifty states was regularly challenged with respect to the appointment process and did not withstand scrutiny.” Schneebaum, 11 UDC/DCSL L. Rev. at 19. “Members of Congress, including supporters of the bill, insisted that the District was not a state but a city, whose municipal executive should not have the power to nominate members of the judiciary.” Id.
Despite the congressional delegation of some of its authority to the newly-created Mayor and Council of the District of Columbia, in the Home Rule Act Congress expressly
6

“reserve[d] the right, at any time, to exercise its constitutional authority as legislature for the District . . . .” D.C. Code § 1-206.01. In addition, Congress specifically precluded the Council from “enact[ing] any act, resolution, or rule with respect to any provision of Title 11 [of the District of Columbia Code] (relating to organization and jurisdiction of the District of Columbia courts),” id. § 1-206.02(a)(4), and prohibited the Council from “enact[ing] any act or regulation relating to . . . the duties or powers of . . . the United States Marshal for the District of Columbia.” Id. § 1206.02(a)(8). Ultimately, “Congress . . . reserved to itself by legislation the power to organize and to oversee the third branch of the government of the District of Columbia.” Schneebaum, 11 UDC/DCSL L. Rev. at 24.
One final statute must be addressed before turning to the merits of the District’s motion. In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512 (1988), Congress established the United States Marshals Service as “a bureau within the Department of Justice under the authority and direction of the Attorney General.” Id. (codified at 28 U.S.C. § 561(a)). At the same time, Congress created the totally-new position of the Superior Court Marshal. See id. (codified at 28 U.S.C. § 561(c)). Pursuant to the Anti-Drug Abuse Act, the President appoints, “by and with the advice and consent of the Senate, a United States marshal for each judicial district of the United States and for the Superior Court of the District of Columbia.” 28 U.S.C. § 561(c). Marshals must live within their districts except for “the marshal for the District of Columbia, for the Superior Court of the District of Columbia, and for the Southern District of New York. . . . .” 28 U.S.C. § 561(e)(1). The Director of the Marshals Service “shall supervise and direct” the entire Service “in the performance of its duties” and shall “appoint and fix the compensation” of Service employees. Id. § 561(f) & (g). Every Marshal, including the Marshal for
7

the Superior Court of the District of Columbia, must meet the minimum pre-employment qualifications established by Congress. Id. § 561(i).
The “powers and duties” of United States Marshals are set out at 28 U.S.C. § 566. “It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.” Id. § 566(a). Further,
The United States Marshals Service is authorized to – (A) provide for the personal protection of Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice where criminal intimidation impedes the functioning of the judicial process or any other official proceeding; and (B) investigate such fugitive matters, both within and outside the United States, as directed by the Attorney General.
Id. § 566(e)(1). B. The Superior Court Marshal Acts Under Color of Federal Law Plaintiffs contend that the United States Marshals Service does not include the
Superior Court Marshal because D.C. Code § 11-1729 “obligates the Superior Court Marshal to ‘serve’ the Superior Court of the District of Columbia, an integral part of the government of the District of Columbia,” which subjects the Superior Court Marshal to the authority of the Superior Court “with respect to his handling of District of Columbia prisoners in the Superior Court (including pre-presentment arrestees).” Pls.’ Partial Opp’n to District of Columbia’s Statement of Material Facts (“Pls.’ Fact Opp’n”) ¶ 4. This argument is the linchpin of Plaintiffs’ suit against the
8

District of Columbia. See id. ¶ 1 (Superior Court Marshal is a § 1983 person because he handles prepresentment arrestees pursuant to § 11-1729); ¶ 2 (Marshals Service has no authority over Superior Court Marshal, who acts pursuant to §11-1729); ¶ 3 (Superior Court has power over Superior Court Marshal under § 11-1729); ¶¶ 6 & 8 (Superior Court Marshal, whose authority stems from § 111729, is part of the “personnel” of the Superior Court); ¶ 9 (the Superior Court Marshal “serves” the Superior Court pursuant to § 11-1729 so that the Superior Court “could order the Superior Court Marshal to stop the strip searches as a matter of law”); ¶ 11 (“the Superior Court Marshal serves the Superior Court”); ¶ 16 (“The Superior Court Marshal handles pre-presentment arrestees pursuant to D.C. Code § 11-1729 or the inherent powers of the Superior Court.”).
Plaintiffs misconstrue the applicable statutory provisions. To begin with, D.C. Code § 11-1729 was part of the Court Reorganization Act, adopted by Congress eighteen years before the creation of the office of the Superior Court Marshal as part of the Anti-Drug Abuse Act. It, therefore, referenced only the United States Marshal for the District of Columbia, clearly a federal position within the United States Marshals Service, and ordered that Marshal to continue to serve the new, local, courts. See D.C. Code § 11-1729. Plaintiffs rely on § 11-1729 as the sole source of authority for the Superior Court Marshal to handle pre-presentment arrestees, but their reliance is not supported by the text of the statute or the history of the District of Columbia local court system, as outlined above.2
2 Since 1970, Congress has increasingly treated the District of Columbia as a separate political entity and not just a congressional domain, perhaps brought to the realization that the city had become a major urban center by the riots after the 1968 assassination of Rev. Martin Luther King Jr. See Schneebaum, 11 UDC/DCSL L. Rev. at 16 & n.18. Congress first reorganized the local court system, then granted limited home rule, and now recognizes Eleanor Holmes Norton as a nonvoting Congresswoman for the District of Columbia. Although Congress retains its authority to legislate for the District of Columbia, it considers locally-adopted legislation only after the fact. See
9

Plaintiffs also downplay the relevance of the Anti-Drug Abuse Act, the legislative source that created the office of the Superior Court Marshal and from which the authority of the Superior Court Marshal — like every other United States Marshal — logically and expressly derives. See 28 U.S.C. §§ 561-566. That enactment leaves no doubt that the Superior Court Marshal and the Marshal for the District of Columbia are separate positions as they are each named in the statute. See 28 U.S.C. § 561(e)(1). Plaintiffs assert that the statute gives no authority to the Superior Court Marshal because § 566(a) states that the “primary role and mission” of the United States Marshals Service is the security and carrying-out of orders of specifically-named federal courts, without reference to the District of Columbia Superior Court. See id. § 566(a). While subsection (a) of § 566 is so limited,3 Plaintiffs fail to appreciate the authority of the Marshals Service to “provide for the personal protection of Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice where criminal intimidation impedes on the functioning of the judicial process or any other official proceeding.” Id. § 566(e)(1)(A). The Superior Court Marshal exercises authority over all persons to be presented to a Superior Court judge (a “court officer”) in order to provide for the judge’s “personal protection” and to avoid “criminal intimidation” which could impede “the functioning of the judicial process” of the Superior Court. Id. Plaintiffs’ reliance on
D.C. Code § 1-206.02(c)(1). By contrast, Congress requires federal executive and legislative oversight and approval of appointments to the District of Columbia local courts, even as it respects their decisions to go through a normal appellate process. See D.C. Code §§ 1-204.33(a); 11-1501(a). More particularly, Congress has established the Superior Court Marshal as part of the United States Marshal Service with the same presidential nomination and Senate confirmation requirements as all other United States Marshals. See 28 U.S.C. § 561(c).
3 The following analysis assumes that the District of Columbia Superior Court judges are not “Federal jurists” within the meaning of § 566(a). While the United States argues that the Superior Court is a “federal” court, the Court need not decide this issue. See infra, n. 6.
10

D.C. Code § 11-1729 also ignores the very real authority that the Director of the Marshals Service exercises over the Superior Court Marshal, as a member of the Marshals Service. See id. § 561(f) & (g). Plaintiffs’ repeated argument that the Superior Court Marshal is not part of the Marshals Service or subject to the Director’s authority is simply wrong and flatly contradicted by the plain language of the statutory provisions. See id. & § 561(c).
Plaintiffs seek to avoid the Anti-Drug Abuse Act because it is undisputedly a generally applicable congressional enactment that applies well beyond the boundaries of the District of Columbia. Rather, seeking to apply Fletcher4 and Settles,5 they argue that D.C. Code § 11-1729 is a law applicable solely to the District of Columbia, rendering the Superior Court Marshal a § 1983 “person” when handling District of Columbia arrestees, even if he is otherwise a federal employee. This argument fares no better than its predecessor. D.C. Code § 11-1729 provides a shaky foundation to the argument: it expressly provides that the Marshal for the District of Columbia shall be “subject to the supervision of the Attorney General of the United States.” D.C. Code § 11-1729. Thus, even under § 11-1729 the Marshal acts under the control of the federal government, not the local District of Columbia government. This conclusion is strengthened by the provision in the Court Reorganization Act, of which D.C. Code § 11-1729 is a part, that prohibits the District of Columbia Council from adopting any law that would impact the authority of the United States
4 See Fletcher v. Dist. of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004) (“Fletcher I”) (holding that members of the United States Parole Commission are amenable to suit under § 1983 for actions taken pursuant to § 11231 of the National Capital Revitalization and Self-Government Improvement Act of 1997 (“Revitalization Act”), Pub. L. No. 105-33, 111 Stat. 251, 745 (1997)).
5 See Settles v. United States Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) (reaffirming the holding in Fletcher I that “a cause of action under § 1983 will lie against the individual members of the [United States Parole] Commission when acting pursuant to the Revitalization Act § 11231”).
11

Marshal for the District of Columbia. See D.C. Code § 1-206.02(a)(8). In addition, Settles and Fletcher both involved § 11231 of the Revitalization Act, a law applicable exclusively to the District of Columbia that transferred authority from the District of Columbia Parole Board to the United States Parole Commission; thus, when the members of the United States Parole Commission exercise authority over District of Columbia prisoners, they are acting in the stead of District of Columbia government officials. The same cannot be said of the Superior Court Marshal, whose office was created pursuant to § 7608(a)(1) of the Anti-Drug Abuse Act, a generally applicable congressional enactment, and who inherited duties from a federal official, the United States Marshal for the District of Columbia.
Plaintiffs also fail to appreciate the complex status of the local District of Columbia courts. They posit that the District of Columbia Superior Court and the District of Columbia Court of Appeals are an “integral part of the government of the District of Columbia” as if they were fully analogous to the Mayor and Council, both of whom are elected by the local citizens and whose authorities were established by the Home Rule Act, not the earlier Court Reorganization Act. The local court system is different from the local executive and legislature: while the Judicial Nomination Committee sends three names to the President, only upon presidential nomination and Senate confirmation can a candidate become a judge. See D.C. Code §§ 1-204.33(a); 11-1501(a). The general population of the District of Columbia plays no part in this process. See Schneebaum, 11 UDC/DCSL L. Rev. at 18-20. The intent behind the Court Reorganization Act was clearly to establish Article I courts for the District of Columbia, separate and apart from the federal Article III courts. See id. at 16. There was then a further grant of local authority for executive and legislative branches in the Home Rule Act, with some limitations on the Council’s authority to adopt legislation
12

affecting the District of Columbia courts. See D.C. Code § 1-206.02(a)(4). Thus, it is unclear — and the Court need not determine — the degree to which the District of Columbia Superior Court and the District of Columbia Court of Appeals can truly be considered “integral” to the District of Columbia government but the very uncertainty of the question saps the force of Plaintiffs’ further argument that the Superior Court Marshal is also “integral” to the local government and not the federal government.6
In any event, even were D.C. Code § 11-1729 the bulwark Plaintiffs proclaim it to be, by its express terms it is not applicable to the Superior Court Marshal but only to the Marshal for the District of Columbia. See D.C. Code § 11-1729. As emphasized above, the position of Superior Court Marshal was only established in 1988 as part of the Anti-Drug Abuse Act. See 28 U.S.C. § 561(c). The creation of that office superseded the provisions of D.C. Code § 11-1729 on which Plaintiffs rely, as it must have because the Superior Court Marshal inherited the former duties of the Marshal for the District of Columbia vis-a-vis the Superior Court. See id. & § 561(e)(1). Plaintiffs’ argument that the Superior Court Marshal has no authority to handle Superior Court arrestees unless from § 11-1729 or the inherent power of the Superior Court is erroneous. The Superior Court Marshal’s authority stems directly from the relevant provisions of the Anti-Drug Abuse Act, as it does for every other United States Marshal.
6 The United States argues that the District of Columbia Superior Court and the District of Columbia Court of Appeals are actually “federal” courts. While there is some support for that position, see Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 351 (D.C. Cir. 2003) (noting that the District of Columbia Superior Court “is a congressionally created court and, thus, ‘federal’ in its creation”), there is also support for the opposing view. See Galloway v. Superior Court of Dist. of Columbia, 816 F. Supp. 12, 19 (D.D.C. 1993) (Superior Court is a component of the District of Columbia government). The Court need not weigh in on the question because the dispositive issue in this case is the status of the Superior Court Marshal, not the Superior Court.
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C. The District of Columbia Cannot be Held Liable Because It Has No Authority to Control the Superior Court Marshal and No Choice But to Turn Over its Arrestees to the Superior Court Marshal Plaintiffs contend that they need complete discovery before they can address certain
issues raised by their claims and the District’s motion for summary judgment. They assert that, without more discovery, they cannot address whether the Superior Court Marshal “may have acted in concert with the government of the District of Columbia and become a § 1983 person,” Pls.’ Opp’n to Fed. Defs.’Amicus Brief at 10, or whether the District of Columbia is liable because it entrusted its pre-presentment arrestees to the custody of the Superior Court Marshal when it knew or should have known about the blanket policy of strip searches. Id. at 15. Plaintiffs suggest that discovery to date supports both theories: a deponent for the Federal Defendants under Rule 30(b)(6) of the Federal Rules of Civil Procedure testified that the Superior Court Marshal was just like a “puppet” of the District in the Superior Court cellblock and Marshal Dillard described his position as similar to a “guest” without control and with security decisions made by the Superior Court. Id. at 14. However, because Plaintiffs’ arguments fail as a matter of law, no more discovery is needed.
No “joint actor” liability exists because the Superior Court Marshal is admittedly in exclusive control of handling pre-presentment arrestees to the Superior Court and, as discussed above, the Superior Court Marshal derives his authority from generally applicable federal law, not District of Columbia law. Therefore, because the District of Columbia has no authority over the Superior Court Marshal, Marshal Dillard’s conduct that Plaintiffs’ allege violated their constitutional rights “cannot be fairly treated as that of the District of Columbia.” Williams v. United States, 396 F.3d 412, 415 (D.C. Cir. 2005). Plaintiffs seek to avoid summary judgment by contesting facts proffered by the District of Columbia. However, all of Plaintiffs’ fact disputes with the District of
14

Columbia depend on the asserted authority granted to the Superior Court Marshal under D.C. Code § 11-1729, which, as explained above, is not legally correct. See Pls.’ Fact Opp’n ¶¶ 1-4, 6, 8-9, 11, 16. Rather, the Superior Court Marshal’s authority over pre-presentment arrestees is part of his authority to protect court officers, including Superior Court judges, derived from federal law. See 28 U.S.C. § 566(e)(1)(A). Inasmuch as the District of Columbia does not have the status of a State, and is subject to the plenary legislative authority of the Congress, it has no authority over the Superior Court Marshal’s handling of pre-presentment arrestees before they are presented in the Superior Court.
Plaintiffs’ entrustment theory fails for the same reason. Implicit in that theory is that the entrusting entity “had a choice over whether to follow the challenged course of action.” Jones v. Murphy, 470 F. Supp. 2d 537, 553 (D. Md. 2007). Congress established the United States Marshal for the Superior Court of the District of Columbia and that Marshal performs the same protective duties for local Article I District of Columbia court judges as the marshals in other judicial districts perform for Article III federal court judges. See 28 U.S.C. §§ 561(c), 566(e)(1)(A). As is the case in an Article III federal court, no detained person can be presented to a Superior Court judge without passing through the hands of the Superior Court Marshal. See D.C. Code §§ 24-201.13; 24-201.14. The District of Columbia has no other alternative but to turn over its arrestees to the Superior Court Marshal. Accordingly, Plaintiffs cannot recover on an entrustment theory. Further discovery cannot change these legal relationships.
15

IV. CONCLUSION Because the Superior Court Marshal is a federal employee acting pursuant to generally applicable federal law, and because the District of Columbia has no authority to control the Superior Court Marshal and no choice but to turn over arrestees to him, the District of Columbia cannot be held liable for his allegedly unconstitutional acts. Accordingly, the District’s motion for summary judgment [Dkt. # 178] will be granted and the District of Columbia will be dismissed as a party in this case. A memorializing Order accompanies this Memorandum Opinion.

Dated: October 31, 2008

__________/s/___________ ROSEMARY M. COLLYER United States District Judge

16

 
 Case 1:02-cv-02364-RMC Document 203 Filed 10/31/08 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANNA JOHNSON, et al., Plaintiffs,
v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, et al.,
Defendants.

)

)

)

)

)

)

Civil Action No. 02-2364 (RMC)

)

)

)

)

)

)

ORDER For the reasons stated in the Memorandum Opinion issued separately and contemporaneously with this Order, it is hereby ORDERED that the District of Columbia’s Motion for Summary Judgment [Dkt. # 178] is GRANTED; and it is FURTHER ORDERED that the District of Columbia is dismissed as a party in this case. SO ORDERED.

Dated: October 31, 2008

__________/s/___________ ROSEMARY M. COLLYER United States District Judge

 
 Case 1:02-cv-02364-RMC Document 223 Filed 01/11/10 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DIANNA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GOVERNMENT OF THE DISTRICT )

OF COLUMBIA, et al.,

)

)

Defendant.

)

)

Civil Action No. 02-2364 (RMC)

ORDER This case was filed on December 2, 2002, and complains about “drop, squat and cough” searches by the United States Marshal Service (“USMS”) of various arrestees awaiting presentment to a judicial officer of the Superior Court of the District of Columbia. Discovery has been long and torturous to identify the alleged class members, to investigate the scope of the alleged practices, and to determine which, if any, Defendants might be potentially liable. The USMS was dismissed as a Defendant by Memorandum Opinion and Order of this Court on February 8, 2008. See Dkt. ## 158 & 159. The District of Columbia was dismissed as a Defendant by Memorandum Opinion and Order of this Court on October 31, 2008. See Dkt ## 202 & 203. The sole remaining Defendant is former Superior Court Marshal Todd Dillard. On November 19, 2009, just as discovery was (finally) ending, Plaintiffs filed a Motion for Leave to File a Third Amended Complaint. See Dkt. # 216. The proposed Third Amended Complaint seeks again to bring the USMS and the District of Columbia into the litigation as Defendants. The District of Columbia has filed a motion to intervene to oppose Plaintiffs’

Case 1:02-cv-02364-RMC Document 223 Filed 01/11/10 Page 2 of 2

motion. See Dkt. # 222. Marshal Dillard has filed an opposition to Plaintiffs’ motion, see Dkt. # 219, and the
Court merely awaits Plaintiffs’ reply before ruling. That reply is due on January 11, 2010. See Minute Order dated December 30, 2009.1 Inasmuch as the District of Columbia has indicated that it will not be able to file its opposition any earlier than January 13, 2010, see Mot. to Intervene ¶ 5, the Court DENIES WITHOUT PREJUDICE [Dkt. # 222] the District of Columbia’s motion to intervene. If, after Plaintiffs file their reply, the Court determines that further briefing from the District of Columbia would assist it in ruling on Plaintiffs’ motion, the Court will permit the District of Columbia to intervene for the purpose of filing an opposition.
SO ORDERED.

Date: January 11, 2010

/s/ ROSEMARY M. COLLYER United States District Judge

1 No further extensions will be granted. -2-

 
 Case 1:02-cv-02364-RMC Document 212 Filed 10/09/09 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANNA JOHNSON, et aL, Plaintiffs
v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA, et aL,
Defendants.

) ) ) ) ) ) Civil Action No. 02-2364(RlVIC) ) ) ) ) )

STIPULATION AND PROPOSED ORDER The parties hereby stipulate and agree, upon approval of the Court, to the following: 1. The United States Marshals Service ("USMS") has sought return of three electronic mail messages and a case assignment form, which it submits were subject to attorney"client privilege and/or work product protection, but inadvertently released to Plaintiffs counsel during discovery. Those four documents were initially produced pursuant to a protective order without any redactions and originally paginated 000436, 000439, 000440, and 000442, and subsequently re-released. All unredacted versions of those documents will be referred to as the ''unredacted documents" throughout this stipulation. 2. The parties have a dispute regarding the effect of the disclosure of the unredacted documents. In order to resolve their dispute, and without conceding that any waiver has in fact occurred, the parties stipulate (subject to the Court's approval) that the unredacted documents will be treated as described in the following paragraphs. 3. Plaintiffs may retain the unredacted documents in their un-redacted form for use in this litigation only.

Case 1:02-cv-02364-RMC Document 212 Filed 10/09/09 Page 2 of 4
4. The unredacted documents remain protected material subject to the protective order entered in this case. Therefore,.although Plaintiffs may use the unredacted documents in Johnson v. Dillard, the parties cannot file the unredacted documents on the public record or make other public disclosures that would violate the protective order.
5. The parties may not show the unredacted documents to a witness unless that witness: a. is the author or recipient of that specific unredacted document; b. opened the electronically-mailed version of the unredacted document for the sender or recipient of that specific unredacted document; b. is defendant Todd Dillard; c. is a current employee of the USMS Office of General Counsel; d. is a former employee of the USMS Office of General Counsel and agrees to sign a confidentiality agreement requiring that the unredacted documents be handled in accordance with the protective order; e. is a current or former USMS employee who previously saw the unredacted documents in un-redacted form, and agrees to sign a confidentiality agreement requiring that the unredacted documents be handled in accordance with the protective order.
6. By permitting Plaintiffs to use those unredacted documents, Defendant does not waive any privileges or protections that may pertain to the information contained in the documents. The parties also agree that this stipulation does not waive attorney-client privilege or work product protection for any undisclosed communications and/or documents, even if those other communications and/or documents concern the same subject matter as the unredacted documents. Nor are any privileges or objections waived regarding any internal deliberations that may have taken place within the federal government about the reasons for changing the District of Columbia Superior Court search policy and/or practice by permitting plaintiffs to use these four unredacted documents.
7. This agreement applies only to Johnson v. Dillard, Civil Action No. 02-2364, and does
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Case 1:02-cv-02364-RMC Document 212 Filed 10/09/09 Page 3 of 4
not allow the unredacted documents to be used in Bame v. Dillard, Civil Action No. 05-1833, or any other case.
WHEREFORE, pursuant to Fed. R. Evid. 502(d), the Court hereby orders that the foregoing stipulated agreement shall govern the parties' use of the unredacted documents, and that the parties' stipulation and their use of the unredacted documents pursuant to the stipulation shall not waive any privilege or protection that may otherwise be afforded to those unredacted documents.

WILLIAM CLAIBORNE, ESQ. DC Bar #446579 717 D Street, NW Suite 210 Washington, DC 20004

CHANNING D. P LIPS, DC Bar #415793 ~~ Acting United States Attorney
Is/ NTRERAS, DC Bar #434122 Assistant United States Attorney
Is/
W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney

-

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Case 1:02-cv-02364-RMC Document 212 Filed 10/09/09 Page 4 of 4
William Claiborne DC Bar # 446579 717 D Street, NW Suite 210 Washington, DC 20004

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DIANNA JOHNSON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

GOVERNMENT OF THE DISTRICT )

OF COLUMBIA, et al.,

)

)

Defendants.

)

)

Civil Action No. 02-2364 (RMC)

MEMORANDUM OPINION It is alleged that the United States Marshal for the Superior Court of the District of Columbia directed a blanket policy and/or practice whereby all female arrestees—but not male arrestees—were subjected to “drop, squat and cough” strip searches before presentment to a judicial official. Approximately 16,000 women who were arrested for non-drug and non-violent offenses, such as traffic stops and other minor offenses, between December 2, 1999, and April 25, 2003, complain here that this blanket policy and/or practice violated their rights to be free from unreasonable searches under the Fourth Amendment and their rights to equal protection under the Fifth Amendment to the Constitution. Former Superior Court Marshal Todd Dillard, sued here in his individual capacity, asserts that his official search policy for the D.C. Superior Court cellblock was gender neutral; that he intended the policy to apply identically to both male and female arrestees; that he was unaware if his policy were being contravened by those conducting the searches; and that, in any event, he is entitled to qualified immunity. In other litigation, the United States Marshals Service formally conceded that the

practice at the Superior Court cellblock in 2000 and 2001 was to subject all female arrestees to a blanket drop, squat and cough search while male arrestees underwent the same search only upon individualized suspicion. Former Marshal Dillard disputes the accuracy of this concession. The search practices at the Superior Court during the class period are very much contested. However, in light of the government’s past formal admissions and record evidence in Clifton v. U.S., No. 020578 (D.D.C. filed Mar. 26, 2002) and Helton v. U.S., No. 01-0385 (D.D.C. filed Feb. 20, 2001), which similarly involved strip searches at the D.C. Superior Court cellblock, and the record before this Court, it is evident that during the class period female arrestees were subjected to a blanket practice of strip searches while many, if not most, male arrestees were not. Nonetheless, it is now clear that former Marshal Dillard is entitled to qualified immunity from the Fourth Amendment claims. The Fifth Amendment claims similarly fail as Plaintiffs proffer no evidence that former Marshal Dillard purposefully discriminated by intending a gender disparity in search procedures.
I. FACTS A. The Searches Plaintiffs complain of strip searches (“strip, visual body cavity and/or squat searches”) to which they were subjected at the District of Columbia Superior Court cellblock while waiting for presentment before a judge or other judicial officer. Second Am. Compl. [Dkt. # 117] ¶ 1. Similar strip searches were complained of in Clifton v. U.S. and Helton v. U.S., both of which settled with entry of a court order and injunction. Defendant Todd Dillard was the United States Marshal for the Superior Court of the District of Columbia from approximately October 1990 to 2004, and, accordingly, the Superior Court Marshal for the periods covered by both Clifton and Helton and the entirety of the Fourth and Fifth Amendment class period, which runs from December 1999 to April
-2-

2003.
As described by the United States Marshals Service (the “Service”), in 2001 all
prisoners brought to the Superior Court cellblock first passed through a magnetometer and then
underwent an “in-custody search,” whereby they removed the contents of their pockets, had their
outer clothing inspected, removed their shoes, and were thoroughly patted down. See Pls.’ Mem.
in Supp. of Mot. for Partial Summ. J. [Dkt. # 233], [Attach. 82] Marshal Service Interrog. Resp. in
Clifton v. U.S. ¶ 8. After the “in-custody search,” male detainees were then placed in a cell unless
a detainee presented individualized suspicion that he had contraband on his person or posed other
risk, in which event he was held aside to be subjected to “a more thorough search.” Id.
However, as the Service described the strip search practice that existed in 2001, it was
markedly different for female detainees:
After the in-custody search, female detainees are then moved to an enclosed area separate and apart from male detainees. Only female detainees or officers are allowed in this area; no male detainees or officers may inadvertently or casually look into the area; and there are no closed-circuit televisions or other video recording devices present. One further step is required for female detainees since the pat-down search cannot reasonably ascertain whether there are weapons or contraband secreted in the brassiere or the vagina.
The female detainee herself is asked to grasp her brassiere through her outer clothing and move it or shake it in a manner designed to dislodge any weapon or contraband that may be hidden there. The detainee is then asked to face a wall, lower her pants and underwear, and “squat and cough”. The detainee squats by lowering her body from an upright standing position until her upper legs are parallel to the floor. A female [officer] observes this procedure, which lasts 2 to 3 seconds, from a distance of about 10 feet from the detainee. At no time does the female [officer] closely view any detainee’s orifices.
Female detainees are subjected to this final step primarily because of the history of discovery of contraband and weapons hidden in the
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vagina of women who arrive in the United States Marshals Service’s cellblock from the District of Columbia jail or the District of Columbia Metropolitan Police Department, and because of the relative ease with which contraband or weapons can be secreted in the vagina or sanitary napkins.
Id. (describing practice that existed on June 29, 2001); see also Pls.’ Mem., [Attach. 73] Marshal
Service Interrog. Resp. in Helton v. U.S. ¶ 8 (describing identical practice being in existence on
February 21, 2000); Second Am. Compl. ¶¶ 133–35 (detailing the complained of drop, squat and
cough searches). Thus, when sued in separate suits in 2001 and 2002, the Service formally admitted
through sworn interrogatory responses that the Superior Court Marshal had a blanket practice of
drop, squat and cough searches of all female prisoners, but not of male prisoners without
individualized suspicion.
This case did not proceed immediately because, on April 25, 2003, the parties agreed
to a temporary standstill to pursue settlement discussions and the Service vowed,
in response to the injunctive relief claims contained in the complaint herein and plaintiffs’ motion for a preliminary injunction, the Federal Defendants will have implemented by Monday, April 28, 2003, new security policies and practices that will (i) permit “drop, squat and cough” searches or a strip search only, at the least, upon an individualized finding of reasonable suspicion, if not probable cause, and with the approval of a supervisor; and (ii) insure that such searches will be applied even-handedly to both men and women arrestees and detainees.
See Consent Mot. to Hold Mots. in Abeyance Pending Settlement Discussions [Dkt. # 24] at 2.
Despite Clifton and Helton, Marshal Dillard insists that he had a blanket policy at the Superior Court
throughout the class period of subjecting all arrestees, regardless of gender, to drop, squat and cough
searches. See Def.’s Notice of Dep. Excerpts [Dkt. # 240] (“Dep. Excerpts”), [Attach. 9] Todd
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Dillard Dep. (Nov. 20, 2009) at 92–93, 96–98; see also id., [Attach. 14] Thomas Hedgepeth Dep. (July 17, 2007) at 220–23 (corroborating that official policy throughout class period was that all prisoners were to be drop, squat and cough searched). Following voluminous discovery, the record reveals that the practice employed by Superior Court employees in conducting strip searches was not gender neutral.1 Were just the practice itself at issue, Marshal Dillard’s current testimony would need to be evaluated by a jury, since it is irreconcilably at odds with the Service’s prior sworn responses and the instant record. However, in light of recent D.C. Circuit case law, the Court must conclude that Marshal Dillard enjoys qualified immunity from Plaintiffs’ Fourth Amendment claims and that, without evidence that Marshal Dillard himself acted with discriminatory purpose by subjecting male and female arrestees to different strip search procedures, the Fifth Amendment claims must also be dismissed.
B. Procedural History This lawsuit was initially brought against the District of Columbia, the United States Marshals Service, former Superior Court Marshal Todd Dillard in his individual capacity, and various John Doe deputy Marshals. The parties spent the time between April 2003 and April 2006 attempting to settle. When those efforts failed, Plaintiffs filed a First Amended Complaint on April 28, 2006. See First Am. Compl. [Dkt. # 58]. On November 14, 2006, the Court denied defense motions to dismiss and found that Marshal Dillard was not entitled to qualified immunity on the Fourth and Fifth Amendment constitutional claims. See Order Denying Defs.’ Mots. to Dismiss
1 Several Deputy Marshals testified that they did not consider a drop, squat and cough search to be a “strip search” since the arrestee did not become completely nude in the search; a woman kept her shirt on, albeit pulled up, and only had to drop her pants and underwear low enough to allow her to squat and cough. In this Opinion, as in the briefs and prior cases, the terms “strip search” and “drop, squat and cough search” are used interchangeably.
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[Dkt. # 81] at 3. Plaintiffs filed a Second Amended Complaint on May 24, 2007. See Second Am.
Compl. Plaintiffs abandoned their claims against the various John Doe Deputy Marshals in the Second Amended Complaint but added claims against Marshal Dillard in his official capacity. See id. In 2008, the Court certified separate Fourth and Fifth Amendment classes and dismissed the Service as a defendant, finding that Plaintiffs lacked standing to seek equitable relief from it. See Mem. Op. & Order [Dkts. ## 158, 159]. The Court also denied Plaintiffs’ request to certify an alternative Fourth Amendment class which would have included both male and female arrestees. See id. In 2008, the Court dismissed the District of Columbia, finding that it could not be liable to Plaintiffs under 42 U.S.C. §§ 1983 and 1988 because Marshal Dillard was a federal official acting under the color of federal law. See Mem. Op. & Order [Dkts. ## 202, 203]. In 2010, the Court denied Plaintiffs’ motion for leave to file a Third Amended Complaint. See Order [Dkt. # 226].
On April 5, 2010, following extensive discovery, Plaintiffs moved for partial summary judgment, see Pls.’ Mot. [Dkt. # 233], and Marshal Dillard cross-moved for judgment on the pleadings, or in the alternative, for summary judgment. See Def.’s Mot. for Summ. J. [Dkt. # 232]. Oral argument was heard on September 24, 2010, and October 28, 2010. At oral argument on September 24, 2010, the Court reaffirmed its finding that Marshal Dillard had acted under color of federal law as the United States Marshal for the Superior Court of the District of Columbia for the same reasons outlined in its prior Order, see Mem. Op. & Order [Dkts. ## 202, 203], and dismissed all claims under 42 U.S.C. §§ 1983 and 1988 against Marshal Dillard. Thus, remaining before the Court are claims against Marshal Dillard in his personal capacity alone for alleged violations of Plaintiffs’ Fourth and Fifth Amendment rights.
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II. LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere 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). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (noting that when a movant has satisfied his burden under Rule 56, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts”).
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III. ANALYSIS
A. Fourth Amendment Claims The Fourth Amendment Class consists of :
Each woman who, during the Class Period (December 2, 1999, until April 25, 2003), was, (I) held in the Superior Court Cell Block; (ii) awaiting presentment under a statute of the District of Columbia on either (a) a non-drug, nonviolent traffic offense; (b) a non-drug, non-violent misdemeanor; or © a non-drug, non-violent felony; and (iii) subjected to a blanket strip, visual body cavity and/or squat search; (iv) without any individualized finding of reasonable suspicion or probable cause that she was concealing drugs, weapons or other contraband.
See Order Certifying Class [Dkt. # 159] at 1. Following arrest, these women were brought to the
Superior Court cellblock from any of the seven Metropolitan Police Department (“MPD”) stations,
substations, traffic stations, or MPD’s central cellblock for presentment before a judicial officer. The
women were arrested by MPD, the Capitol Police, the Park Police, or any of the myriad of law
enforcement entities that have authority to arrest in the District of Columbia. Typically, if a person
were arrested before three p.m., she would be brought to the Superior Court cellblock the same day;
if she were arrested after three p.m., she would generally be taken to the MPD central cellblock to
spend the night and would be brought to the Superior Court cellblock early the following morning.
Arrestees were typically searched a few times before being brought to the Superior
Court—usually by the arresting officer/s at the scene of arrest, again at the MPD district station, and
then again before being placed on a van to be transported by MPD to the Superior Court cellblock.
These searches were generally pat-downs. Arrestees were brought to the Superior Court cellblock
where they would be held until their presentment to a judicial officer. Also temporarily in custody
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at the Superior Court cellblock awaiting a court hearing would have been convicted prisoners and pre-trial criminal defendants transported from Lorton Correctional Center (which closed in 2001), the D.C. Jail, or the Correctional Treatment Facility (collectively the “jail cases”). Female arrestees and female jail cases were held in separate cells and were not co-mingled. Plaintiffs’ Fourth and Fifth Amendment classes are made up exclusively of female arrestees, not female jail cases.
Arrestees in the Superior Court cellblock were searched primarily by Detention Enforcement Officers (“DEOs”) and, to a slightly lesser extent, Deputy Marshals (“deputies”). Supervisors would intermittently assist in the searches if necessary. Arrestees brought into the cellblock would typically pass through a magnetometer and undergo a thorough pat-down search before (or after) being placed in the search room designated for their gender. Although pat-downs or lesser-degree searches could occur in the hallways or more public areas of the cellblock, female arrestees were subjected to drop, squat and cough searches only in the female search room. There is no allegation that a male was ever present during any of the female drop, squat and cough searches.
The Superior Court cellblock was for temporary custody only; if arrestees were not released by a judicial officer directly from the courtroom after presentment, they would be transferred to the D.C. Jail, where further body searches would occur. Jail cases stayed in the cellblock only as needed for their court hearings and were transferred back from whence they came by day’s end. No arrestee or jail case remained in the Superior Court cellblock overnight. While the exact statistics over the entirety of the class period were not maintained and are contested by Marshal Dillard, it appears that a significant portion, if not the majority, of female arrestees were typically released from custody immediately from the courtroom in which they were arraigned,
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without having to return to the cellblock. During the entirety of the class period, the standard under which body searches were
to be conducted was officially governed by U.S. Marshals Service Policy Directive 99-25. Policy Directive 99-25 was issued Service-wide to “All U.S. Marshals Employees,” with a cover memo dated July 15, 1999. See Def.’s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 232], [Attach. 2] Policy Directive 99-25. The purpose of the directive was to provide “specific instructions to U.S. Marshals Service (USMS) employees for determining if, and under what conditions, body searches are legally permissible and how they will be conducted.” Id. at I. Policy Directive 99-25 was gender neutral and laid out various factors an officer could consider in determining whether reasonable suspicion existed that a prisoner were carrying contraband or presented other risk (i.e. security, escape, suicide) to justify a strip search. Id. at IV(C)(1). Among the factors to be considered were the history of discovery of contraband on an individual prisoner or in a particular institution, and the type and security level of the particular institution in which the prisoner was held. See id. Policy Directive 99-25 was in effect from July 15, 1999 to October 6, 2003.
Marshal Dillard asserts that the Superior Court search policy in place throughout the class period was that every prisoner, both male and female, arrestee and jail case, was to be subjected to a blanket strip search. See Dillard Dep. at 92–93, 96–98. The record reveals that during the class period the day-to-day practice at the cellblock mirrored Marshal Dillard’s asserted policy only as to female arrestees, who were, in fact, all subjected to drop, squat and cough searches.2
2 Approximately fourteen female DEOs and deputies who conducted strip searches of female arrestees at the Superior Court cellblock were deposed and uniformly testified that during the class period the practice was to subject every female arrestee to a drop, squat and cough search. See e,g., Pls.’ Mem., [Attach. 29] Michelle Alexander Dep. (Aug. 28, 2007) at 35–38, 45–46 (searches from approximately February 2002 to March 2003); id., [Attach. 70] Jacqueline Hargrove Dep. from
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Plaintiffs first allege that the blanket drop, squat and cough searches were
unreasonable for women arrested for non-drug and non-violent offenses and, therefore, violative of
the Fourth Amendment.3 Plaintiffs sue Marshal Dillard in his personal capacity for these alleged
violations. A plaintiff may bring a claim for money damages against a federal official in his
individual capacity for a violation of the plaintiff’s constitutional rights. Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). A federal agency is not
a proper defendant under Bivens. See FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); Gabriel v.
Corrections Corp. of America, 211 F. Supp. 2d 132, 137 n.7 (D.D.C. 2003). Marshal Dillard moves
for summary judgment that the blanket policy of conducting drop, squat and cough searches on
arrestees entering the Superior Court cellblock did not violate the Fourth Amendment and that, in
any event, he is entitled to qualified immunity.4
Clifton v. U.S. (Sept. 18, 2002) at 8–9 (approximately 1995 to September 2002); id., [Attach. 49] Penelope Knox Dep. (Oct. 5, 2009) at 22–26 (approximately October 2000 to 2004); id., [Attach. 58] Debora Seifert Dep. (Aug. 28, 2009) at 67–69 (approximately August 1998 to August 2001); but see Dep. Excerpts, [Attach. 5] Tracy Bryce Dep. (Aug. 16, 2007) at 75–77 (testifying that she believed the blanket drop, squat and cough searches of female arrestees ended around 2000). Marshal Dillard concedes this point, but points to a Fourth Amendment class representative who could not recall whether she received a drop, squat and cough search for both of her arrests, rather than for just one. See Def.’s Mem. at 29. The class representative did not testify affirmatively that she was not strip searched both times, and it is unclear whether both of her arrests occurred during the class period. See Pls.’ Reply [Dkt. # 251] at 2. This possible incident does not negate the consistent practice revealed by the overwhelming testimony.
3 Plaintiffs moved to amend their Complaint to add a claim that the non-private setting in which the female arrestees were made to drop, squat and cough—in a female search room in front of other female arrestees—was an unreasonable time, place, and/or manner in which to conduct the searches under the Fourth Amendment. The Court denied Plaintiffs’ request. See Order [Dkt. # 226].
4 Marshal Dillard also moves for dismissal of all claims by Plaintiff Donna Curtis for failure to prosecute, as she failed to attend a scheduled deposition, and to dismiss Plaintiffs Dianna Johnson and Carolyn Montgomery, for whom a suggestion of death has been filed. See Def.’s Mem. at
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On November 14, 2006, in denying the various defendants’ motions to dismiss, this
Court agreed with Plaintiffs that, if the facts proved to be as alleged, a violation of the Fourth and
Fifth Amendments would be shown and Marshal Dillard was not entitled to qualified immunity.
Here, the First Amended Complaint alleges that U.S. Marshals – at the direction of and pursuant to a policy developed by former Marshal Dillard – subjected [female arrestees] to blanket strip searches and visual cavity searches without a reasonable individualized suspicion that [they] were concealing weapons or contraband. . . . [and that] all female arrestees at the D.C. Superior Court were subjected to blanket strip searches, but similarly situated male arrestees were not strip searched. These allegations, if true, adequately allege violations of the Fourth and Fifth Amendments.
Order Denying Defs.’ Mots. to Dismiss [Dkt. # 81] at 2–3.
In 2006, when the Court decided that Plaintiffs had adequately alleged unreasonable
40–42; see also Suggestion of Death [Dkt. # 215]. Plaintiffs do not oppose dismissal if it is without prejudice. See Pls.’ Supplemental Opp’n [Dkt. # 244] at 2. Accordingly, Plaintiffs Donna Curtis, Dianna Johnson, and Carolyn Montgomery will be dismissed without prejudice.
In addition, Marshal Dillard moves to dismiss Plaintiff Rabbiyah Muhammad for failure to prosecute because of her failure to submit timely sworn interrogatory responses, or as a sanction for the same. It is alleged that Ms. Muhammad submitted unsigned interrogatory responses and at her deposition denied that she had ever seen the unsworn responses attributed to her. Def.’s Mem. at 42. Her sworn responses were not received until after her deposition. Marshal Dillard argues prejudice because he “was unable to fully address the inconsistencies between the interrogatory responses and Ms. Muhammad’s testimony during her deposition, and thus was deprived of the opportunity to impeach Ms. Muhammad with contradictory sworn testimony.” Def.’s Reply [Dkt. # 250] at 44. Based on counsels’ arguments, it appears that any untimeliness on Ms. Muhammad’s part was mere inadvertence, and not sufficiently delayed or negligent as to warrant dismissal for failure to prosecute. Adjudication of claims on the merits is preferable and “‘dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success’ or would obviously prove futile.” Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986) (quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 186–87 (D.C. Cir. 1985)). Marshal Dillard has not been prejudiced “so severely” as to warrant the drastic sanction of dismissing Ms. Muhammad. See Shea, 795 F.2d at 1074. The motion to dismiss Rabbiyah Muhammad will be denied.
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searches under the Fourth Amendment, ten of twelve U.S. Courts of Appeals5 had ruled, with only insignificant differences, that the blanket strip search of pretrial detainees, arrested for minor offenses and lacking any individualized suspicion, violated the Fourth Amendment.6 In 2006, however, the D.C. Circuit had not yet spoken to the question. The ten circuits that had found such searches to violate the Fourth Amendment were interpreting and applying Bell v. Wolfish, 441 U.S. 520 (1979), which established a balancing test to determine when a strip search in the context of detention is valid under the Fourth Amendment. Bell considered a challenge to a Bureau of Prisons’ policy at the Metropolitan Correctional Center in New York City, whereby every federal detainee was required to undergo a visual body-cavity strip search following any contact visit with an outsider. Bell, 441 U.S. at 558. After acknowledging a body cavity search “instinctively gives us the most pause,” id. at 558, the Supreme Court explained, “we deal here with the question whether visual body-cavity inspections as contemplated by the [Metropolitan Correctional Center] rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.” Id. at 560.
Since this Court’s ruling in 2006, two circuits have re-visited their prior
5 Excluding the U.S. Court of Appeals for the Federal Circuit. 6 See, e.g., Roberts v. Rhode Island, 239 F.3d 107, 110 (1st Cir. 2001); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Stewart v. Lubbock County, 767 F.2d 153, 156–57 (5th Cir. 1985); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Mary Beth G. v. Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983); Jones v. Edwards, 770 F.2d 739, 741–42 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001).
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interpretations of Bell v. Wolfish. Marshal Dillard holds up Powell v. Barrett, 541 F.3d 1298 (11th
Cir. 2008) (en banc) and Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en
banc). In Powell, the Eleventh Circuit reversed course and determined that the Fourth Amendment,
under its revised interpretation of Bell, does not preclude a policy or practice “of strip searching all
arrestees as part of the process of booking them into the general population of a detention facility,
even without reasonable suspicion.” Powell, 541 F.3d at 1300. Likewise, the Ninth Circuit reversed
its earlier interpretation of Bell and held that a policy “requiring strip searches of all arrestees
classified for custodial housing in the general population was facially reasonable under the Fourth
Amendment, notwithstanding the lack of individualized suspicion as to the individuals searched.”
Bull, 595 F.3d at 982. After the parties filed briefs in this matter, the Third Circuit weighed in for
the first time and similarly found the blanket strip search of arrestees prior to introduction into a
general jail population did not violate the Fourth Amendment. See Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d. Cir. 2010).7
Marshal Dillard argues that these new decisions illustrate that the challenged search
practice at the Superior Court perfectly accorded with Bell v. Wolfish and did not violate the Fourth
Amendment, and/or that he reasonably could not have known that such searches violated the
Constitution. For reasons described below, the Court bypasses the question of whether Marshal
7 But see Jimenez v. Wood County, 621 F.3d 372, 375 (5th Cir. 2010) (rejecting request that the circuit revisit its earlier interpretation of Bell v. Wolfish in light of Bull and Powell and reaffirming Fifth Circuit precedent that “a strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband”); Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010) (finding official not entitled to qualified immunity because under Tenth Circuit precedent “it is also clearly established that ‘a detainee who is not placed in the general prison population cannot be strip searched if the searching officer does not at least have reasonable suspicion that the detainee possesses concealed weapons, drugs, or contraband’”) (quoting Archuleta v. Wagner, 523 F.3d 1278, 1286 (10th Cir. 2008)).
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Dillard violated Plaintiffs’ Fourth Amendment rights, addressing instead his right to qualified immunity, even assuming all of Plaintiffs’ allegations are true.
Qualified immunity is “a defense that shields officials from suit if their conduct ‘d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In developing the doctrine of qualified immunity, the Supreme Court has sought to strike a balance ‘between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.’” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). A federal official can be liable individually but “that official must have violated a constitutional right, and that right must have been ‘clearly established’ – ‘the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.’” Id. (quoting Anderson, 483 U.S. at 640).
Traditionally, looking at the facts alleged in a light most favorable to the plaintiff, a court would first decide whether “the facts alleged show the officer’s conduct violated a constitutional right,” and, only if so, “whether that right was clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court has since instructed that a court can employ its discretion to decide in which sequence to address these two inquiries. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Because the D.C. Circuit has very recently made “plain that a constitutional right” as alleged by Plaintiffs “is not clearly established,” id., it is prudent for this Court to proceed directly to qualified immunity.
On March 25, 2011, the District of Columbia Circuit issued a decision directly on
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point. See Bame v. Dillard, No. 9-5330, 2011 U.S. App. LEXIS 6207 (D.C. Cir. Mar. 25, 2011 as amended Mar. 31, 2011). The Bame plaintiffs, all males, had filed a class action against Marshal Dillard for strip searches, including drop, squat and cough searches, conducted in 2002 following mass arrests of peaceful protesters. Plaintiffs argued they were unconstitutionally searched and that Marshal Dillard was not entitled to qualified immunity as the unanimity in the circuits in 2002 made clear that the Fourth Amendment “prohibited strip searching a person arrested for a non-violent, nondrug-related misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person.” Id. at *1–2. Under the principle of constitutional avoidance, the D.C. Circuit proceeded directly to the question of whether the constitutional right invoked by the plaintiffs was clearly established at the time of the searches. The Circuit noted: “‘There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.’ This is such a case.” Id. at *8 (quoting Pearson, 129 S. Ct. at 818).
The D.C. Circuit concluded that Marshal Dillard was entitled to qualified immunity in Bame because “the law in 2002 did not clearly establish that strip searching all male arrestees prior to placement in holding cells at the Superior Court violated the Fourth Amendment.” Id. at *13. “The governing precedent was then, as it is now, Bell v. Wolfish, and nothing in Bell requires individualized, reasonable suspicion before strip searching a person entering a detention facility.” Id. “To the contrary, as the Eleventh Circuit would later point out, ‘The Bell decision means that the Fourth Amendment does not require reasonable suspicion for this type of strip search in detention facilities.’” Id. (quoting Powell, 541 F.3d at 1308).
The facts alleged by Plaintiffs are not sufficiently distinguishable from Bame to allow
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a different result. The Bame plaintiffs contested blanket strip searches of non-violent, non-drug
related misdemeanor arrestees absent any individualized suspicion at the D.C. Superior Court cellblock, see id. at *2–3, as do Plaintiffs here.8 The D.C. Circuit explicitly dispatched with the
appellees’ arguments—which Plaintiffs repeat here—that: (1) the law was clear in 2002 that this type
of search was unconstitutional because ten circuits had spoken unanimously to that effect; and (2)
Marshal Dillard should not be able to rely upon Powell or Bull or other circuit decisions not decided
until 2008 as evidence that the law was insufficiently clear in 2002. See id. at *10–13. “That Powell
and Bull came down after 2002 is of no moment; those opinions simply accord with our
understanding that Bell did not establish the unconstitutionality of a strip search under conditions like those present here.” Id. at *14.9
Plaintiffs’ additional arguments fare no better. It is arguable that Powell, Bull, and
Florence are distinguishable from cases involving Superior Court arrestees, because the prisoners
before those circuits were about to be entered into, or co-mingled with, a general jail or detention
facility population and most Plaintiffs here were only held temporarily at the D.C. Superior Court
and then either released from the courtroom the same day or transferred to the D.C. Jail, a true
8 The Fourth Amendment class here includes women arrested for non-drug, non-violent traffic offenses, misdemeanors, and/or felonies, and while the Bame decision spoke of those arrested for non-violent, non-drug related misdemeanor offenses, its holding did not hinge on the type of violation or crime for which a plaintiff was arrested, but extended to all persons being introduced into the D.C. Superior Court cellblock, found by the D.C. Circuit to constitute a “detention facility.” See id. at *13.
9 But see id. at *42 (Rogers, J., dissenting) (“Marshal Dillard’s reliance on post-2002 decisions is doubly flawed. Under Supreme Court qualified immunity precedent, circuit court of appeals decisions since the strip searches at issue in 2002 have no bearing on whether he is entitled to qualified immunity on the ground that there was no clearly established law to be followed in 2002. But taken on their own merit the post-2002 cases are distinguishable on their facts and do not demonstrate that the law was unsettled in 2002, much less after.”) (citations omitted).
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“detention” facility in Plaintiffs’ rubric. This very argument was rejected in Bame. The D.C. Circuit found the “Court’s rationale in Bell applies equally to any detention facility that is ‘fraught with serious security dangers,’ as was the cellblock at the Superior Court, where often hundreds of arrestees were processed in a single day.” Id. at *17 (quoting Bell, 441 U.S. at 559). “Contrary to the plaintiffs’ contention, nothing whatsoever in Bell suggests its holding is limited to overnight detention facilities. . . . [n]or . . . did the Court in Bell anywhere mention, let alone rely upon, such intermingling as a reason for upholding the strip searches.” Id. “In any event, arrestees held at the Superior Court were in fact commingled with other arrestees in holding cells; no one suggests each arrestee was put in a separate cell.” Id. at *17–18.
The D.C. Circuit has spoken unequivocally. Even assuming all facts alleged by the Fourth Amendment class as true, the claims addressed in Bame and the instant case cannot be distinguished in any meaningful way. Obviously, the Court must reconsider and modify its prior ruling that Marshal Dillard is not entitled to qualified immunity on Plaintiffs’ Fourth Amendment claims, see Order Denying Defs.’ Mots. to Dismiss [Dkt. # 81], in light of the D.C. Circuit’s decision. Marshal Dillard is entitled to qualified immunity against the claims that he violated Plaintiffs’ Fourth Amendment rights. Accordingly, Plaintiffs’ motion for summary judgment, which spoke solely to the Fourth Amendment claims, will be denied, and summary judgment will be entered for Marshal Dillard.
B. Fifth Amendment Claims The Fifth Amendment Class consists of:
Each woman who, during the Class Period (December 2, 1999, until April 25, 2003), was, (I) held in the Superior Court Cell Block; (ii) awaiting presentment under a statute
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of the District of Columbia; (iii) subjected to a blanket strip, visual body cavity and/or squat search; (iv) under similar circumstances for which male arrestees were not subjected to a blanket strip, visual body cavity and/or squat search.
See Order Certifying Class at 1. Plaintiffs argue that by no later than January 1999, “defendant
Dillard had a policy and practice in place of requiring all female prisoners but not male prisoners to
be subjected to blanket drop, squat, and cough searches.” Pls.’ Reply [Dkt. # 251] at 10. This
gender-based practice is alleged to have violated Plaintiffs’ rights to equal protection.10 As noted
above, significant evidence exists that both the policy and practice at the Superior Court cellblock
during the class period was that every female arrestee was subjected to a blanket drop, squat and
cough search. See supra note 2.
In contrast, ample evidence exists that, at least in practice, many DEOs and deputies
did not subject male arrestees to a blanket drop, squat and cough search unless there were reasonable,
individualized suspicion that the male arrestee was harboring contraband or presented other risk.
See, e.g., Pls.’ Mem., [Attach. 57] Mark Shealey Dep. (May 8, 2007) at 157, 166–67 (testifying as
to practice between January 1999 to summer of 2002 as the a.m. cellblock supervisor); id., [Attach.
10 The Fifth Amendment provides that “[no] person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. X. The equal protection clause of the Fourteenth Amendment does not apply to the District of Columbia, which is a political entity created by the federal government, but the due process clause of the Fifth Amendment has been held to impose the same equal protection restrictions on the federal government and D.C. as the Fourteenth Amendment does on the States. Propert v. District of Columbia, 948 F.2d 1327, 1330 n.5 (D.C. Cir. 1991) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)); Davis v. Passman, 442 U.S. 228, 234 (1979). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’” Davis, 442 U.S. at 234–35 (quoting Califano v. Webster, 430 U.S. 313, 316–317 (1977)). “The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right to be free from gender discrimination which cannot meet these requirements.” Id. at 235–36.
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41] Edward Eversman Dep. (Sept. 14, 2009) at 52–54, 72, 77–79, 82 (testifying that between February 1997 to June 2000, he never witnessed a blanket practice of strip searching male arrestees nor was he ever instructed by any superior to conduct such strip searches); id., [Attach. 30] Michael Artis Dep. (Aug. 16, 2007) at 97–102, 110–12 (explaining that during the class period male arrestees were only strip searched upon individualized suspicion and that out of thousands of male arrestees he had patted down, with the exception of a male juvenile, he could not recall one instance of strip searching a male arrestee); id., [Attach. 33] Robert Brandt Dep. (Jan. 6, 2009) at 53–54, 56, 73 (stating that from 1996 to 2004, he never saw a male arrestee strip searched without individualized suspicion nor did any supervisor ever tell him to strip search all male arrestees as a blanket policy); id., [Attach. 40] Mark Anthony Edge Dep. (Oct. 20, 2008) at 44–46 (same practice from 1989 to 2008); id., [Attach. 32] Ronald Erwin Bolls Dep. (Jan. 21, 2009) at 25–28, 30–31, 33–34, 37 (testifying as p.m. cellblock supervisor from September 2000 to January 2002 that male arrestees were not subject to a blanket practice of drop, squat and cough searches).
Just to confuse things, the record also contains vague and contradictory testimony that the standard under which a male arrestee might have been subjected to a drop, squat and cough search, i.e., blanket protocol or individualized suspicion, changed once or more during the class period. See Pls.’ Mem., [Attach. 54] Gregory Petchel Dep. (Jan. 6, 2009) at 62–73 (testifying that, as supervisory deputy from 1996 to 2004, the initial practice was to strip search male arrestees only upon individualized suspicion; around 2001, the practice changed to strip searches of all male arrestees; that practice was stopped again, resumed again, and finally ended when the Office of General Counsel told the Marshal to cease around 2003); id., [Attach. 59] Jonathan Stover Dep. (Oct. 21, 2008) at 53–62 (testifying that he was not instructed to subject male arrestees to a blanket
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practice of drop, squat and cough searches until around 2000, but the practice did not last long before
it stopped again);11 id., [Attach. 27] Clyde Afman Dep. (Nov. 10, 2009) at 26, 33–34, 45–49, 82
(explaining that from his start date in 1996 blanket strip searches were performed on every male
arrestee but the practice was discontinued sometime between 1999 to 2001).
Without a fact-finder to make credibility determinations, it can only be said that there
appear to have been great differences in search practices of male arrestees at the Superior Court
cellblock under Marshal Dillard, an observation that stands in stark contrast to the uniformity with
which female DEOs and deputies testified that all female arrestees were subjected to drop, squat and
cough searches. Even if some DEOs or deputies conducted strip searches on male arrestees on
occasion, it cannot be said that the record supports Marshal Dillard’s testimony of a blanket practice
at the Superior Court cellblock of drop, squat and cough strip searches of male arrestees.12
11 Plaintiffs filed a Motion for Leave to Address Jonathan Stover’s Testimony Offered in Defendant’s Reply to Plaintiffs’ Motion for Summary Judgment, see [Dkt. # 262], which in essence is a motion for leave to file a surreply. The Court allowed Defendant an opportunity to file a response to arguments raised in this motion. See Def.’s Consolidated Response [Dkts. ## 269, 270]. The motion [Dkt. # 262] will be granted.
12 It would take a fact-finder to decipher the differences in testimony between Marshal Dillard—who says that he merely continued a pre-existing search policy when he became U.S. Marshal for the Superior Court; that his policy was consistent throughout the class period; that the managers and supervisors in the chain of command were to enforce his policies; that he discussed inconsistencies and problems arising at the Superior Court with his supervisors at a weekly meeting; and that he personally visited the male search rooms unannounced and at random times to ensure compliance with his policies and observed male arrestees subjected to drop, squat and cough searches, see, e.g., Dillard Dep. at 50, 52–57, 72, 75–76, 90–92, 95–96, 98, 228; see also id. at 56 (“My instructions were that every supervisor was to constantly be aware of what is going on in the area that they were responsible for supervising. And the only way you could possibly do that is to eyeball it yourself periodically. I mean, you didn’t have to stand there all day, of course, we had other duties. But you had to know – to know what was going on, you had to see what was going on.”), and the sworn answers of the Service in Clifton and Helton, as well as the testimony of supervisory deputies, deputies, and DEOs that male arrestees were not subjected to a blanket practice of strip searches.
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Marshal Dillard counters that “the evidence that Plaintiffs cite indicates that the
search practice may have varied among male and female deputies and DEOs,” Def.’s Reply [Dkt.
# 250] at 25, but that his policy was clear and gender neutral. See, e.g., Dillard Dep. 63–69, 92–93,
96–98. Marshal Dillard argues there is no evidence that he intentionally discriminated against
Plaintiffs in violation of their constitutional rights and that he cannot be held liable under a theory
of respondeat superior, even if any of his subordinates violated their rights. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1948 (2009); Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369 (D.C. Cir.
1997). As to this, he is clearly correct.
Although there is abundant evidence that similarly situated male and female arrestees
were searched differently at the D.C. Superior Court cellblock during the class period, the inquiry
does not end there. “[A] plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. “Where
the claim is invidious discrimination in contravention of the First and Fifth Amendments, our
decisions make clear that the plaintiff must plead and prove that the defendant acted with
discriminatory purpose.” Id. (citations omitted).
Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979). It instead involves a decisionmaker’s undertaking a course of action “‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of [sex].
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Id. at 1948–49. Thus, the “complaint must at least allege that the defendant federal official was personally involved in the illegal conduct.” Simpkins, 108 F.3d at 369.13
It is on this point that Plaintiffs’ claims cannot succeed. There is no allegation or evidence that Marshal Dillard personally conducted any of the challenged strip searches. Further, notwithstanding the plethora of evidence that male and female arrestees were searched according to differing protocols, Plaintiffs fail to point to any colorable evidence that Marshal Dillard purposefully intended this disparity to exist as a way to discriminate against women. Plaintiffs argue that a jury could infer from all the evidence that Marshal Dillard changed the policy during his tenure specifically to require that all female arrestees undergo a strip search while male arrestees were only to be similarly searched upon individualized suspicion; or that even if the official policy were gender neutral, that Marshal Dillard directed—or, at a minimum, was aware of—the unequal search practices. Neither argument is supported by the record and Marshal Dillard’s mere knowledge of a disparity in search protocols, even if shown, would not suffice to impose personal liability.
1. No Evidence That Marshal Dillard Intended a Discriminatory Policy No evidence exists that Marshal Dillard implemented a policy which directed a blanket practice of strip searching female arrestees but subjected male arrestees to strip searches only on individualized suspicion. Plaintiffs allege that testimony about meetings between Marshal Dillard and his supervisors to discuss implementing a customized Superior Court search policy could reasonably create an impression with a jury that Marshal Dillard specifically instituted a gendered
13 To the extent Plaintiffs attempted to proceed against Marshal Dillard on a theory of deliberate indifference, see Second Am. ¶ 232, the theory must fail. See Iqbal, 129 S. Ct. at 1948 (“purposeful discrimination requires more than ‘intent as volition or intent as awareness of consequences’”) (citation omitted). It appears Plaintiffs have abandoned any deliberate indifference theory of liability. See Def.’s Reply at 42 n.16.
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policy; Plaintiffs also cite the Clifton and Helton interrogatory responses as support that such a policy—and not merely an irregular practice—existed.
The meetings in question are brought to light by Michael Mitchell, who worked at the Superior Court from 1998 to 2003 in various capacities, but who admittedly was confused as to the dates of these meetings.14 Mr. Mitchell mentioned a 1999 meeting with Marshal Dillard and Chief Deputy Charles Rowe, second in command, sometime after issuance of Policy Directive 99-25 by the Service in July 1999. Mr. Mitchell remembers that Marshal Dillard said he wanted every arrestee to be subject to a drop, squat and cough search until a “more customized” approach for the Superior Court—being developed by Chief Rowe—could be implemented in the wake of Policy Directive 99-25. Pls.’ Mem., [Attach. 51] Michael Mitchell Dep. (Oct. 7, 2009) at 119–22. At a second meeting, after Mr. Mitchell had become an Assistant Deputy Chief in 2000, Mr. Mitchell remembered that Chief Rowe was about to “put the district policy out” that would prohibit strip searches without individualized suspicion. Id. at 123–24, 132–33. Later in his deposition, Mr. Mitchell acknowledged that he was unsure of the dates of the meetings and indicated that the first meeting could have occurred as late as 2003. Id. at 128–29, 156–57.
Plaintiffs pounce on the lack of certainty of such dates, and the evidence that men and women arrestees were treated differently, to argue that a jury could find that Marshal Dillard implemented a policy in 1999 or 2000 that prohibited blanket strip searches of male arrestees while requiring it of all female arrestees. However, at no point did Mr. Mitchell testify that the new
14 Mr. Mitchell came to the Superior Court as the a.m. cellblock supervisor in January 1998, continued in that position until January 1999, was then promoted to Assistant Chief Deputy in 2000, and became a Chief Deputy in September 2003, when he left the Superior Court. For his first year as cellblock supervisor, he testified that the practice was to strip search every male arrestee. Pls.’ Mem., [Attach. 51] Michael Mitchell Dep. (Oct. 7, 2009) at 18, 83–86.
-24-

Superior Court policy would call for male and female arrestees to be treated differently or that Marshal Dillard ordered, or ever mentioned, such a difference in treatment. No matter how confused the testimony about dates, there is no testimony that Marshal Dillard contemplated a policy of gender discrimination against women by search practices.15
Similarly, while the sworn answers to interrogatories in Clifton and Helton, signed by supervisory Deputy Mark Shealey, indicate a clear differentiation in treatment of male and female arrestees, there is no evidence tying Marshal Dillard to this difference, much less that he ordered it. In fact, Marshal Dillard testified that he neither read nor wrote the interrogatory responses. Dillard Dep. at 119, 144. Further, Mr. Shealey, in the sworn answers, identified Policy Directive 99-25 as the governing policy in 2000 and 2001, thus refuting Plaintiffs’ argument that some unaccounted for, discriminatory policy had been put in place. While still agreeing with the factual premise of the interrogatory responses that only female arrestees were subject to a blanket practice of drop, squat and cough searches, Mr. Shealey testified at deposition in this case that he did not know why the practice was to strip search female arrestees, but not male arrestees, and that he just assumed it was because females could hide contraband in their vaginas. Shealey Dep. at 158–162. Further, he testified that no one had ever directed him to treat the genders differently. Id. at 160, 163–68. Neither of these bits of evidence carries Plaintiffs’ burden to show that Marshal Dillard purposefully discriminated against women arrestees through a Superior Court policy.
15 Plaintiffs express great skepticism that the search practices could be as disparate as the interrogatory answers and discovery indicate without the intention and/or knowledge of Marshal Dillard. The Marshal’s testimony about his and his supervisors’ attention to cellblock issues supports such skepticism, especially when contrasted with Marshal Dillard’s frequent memory lapses at deposition. However, the beginning of the time period in question is more than a decade ago and Marshal Dillard has long since retired. Given the legal standards applicable to Plaintiffs’ claims, their skepticism is insufficient to push this matter to a jury.
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2. No Evidence Marshal Dillard Directed a Discriminatory Practice There is no colorable evidence in the record that Marshal Dillard knew of the practice of searching the sexes differently, let alone that such a practice was directed by him. Plaintiffs argue it is incredible to believe Marshal Dillard did not know of the disparate search practices given the prolific nature of these practices—which may have existed for years—and that Marshal Dillard had supervisors who were supposed to be reporting to him on failures of Superior Court personnel to follow his policies. The argument fails to carry the point. Marshal Dillard’s mere knowledge of, or acquiescence in, his subordinates’ potentially discriminatory practices would not constitute purposeful discrimination on his part. See Iqbal, 129 S. Ct. at 1949 (rejecting argument that superiors may be liable for their “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees”). Marshal Dillard’s recollection was hazy but he testified to observing male arrestees being strip searched on those occasions that he inspected male search rooms. Dillard Dep. at 76. Plaintiffs contend that Marshal Dillard must have observed and implicitly approved a different search policy for male arrestees than for women since he says he observed strip searches in the male search room but other deposition testimony indicates a lack of a blanket policy on strip searching male arrestees. According to Plaintiffs, this varying testimony “creates an inference that defendant Dillard knew about the search practices and approved them.” Pls.’ Opp’n [Dkt. # 243] at 15. However, both deputies and DEOs testified that they rarely, if ever, saw Marshal Dillard in the cellblock or had any contact with him, see, e.g., Def.’s Mem., [Attach. 6] Suppl. Interrogatory Responses, Answers to Question # 5; Shealey Dep. at 284 (testifying that he only recalled seeing Marshal Dillard in the cellblock on September 11, 2001); Stover Dep. at 61, 91 (“I can’t recall
-26-

[whether Marshal Dillard ever observed any strip searches]. Marshal [Dillard] hardly ever came to
the cell block”), and the Marshal’s testimony alone does not carry the inference Plaintiffs seek, even
if an inference alone satisfied Plaintiffs’ burden.
To be sure, Marshal Dillard proclaimed that it was his job as a supervisor to ensure
his policies were being followed, that his supervisors should have known if there were any deviation
from these policies, and that any such deviation would have been discussed at weekly supervisors’
meetings. See Dillard Dep. at 68, 73. Marshal Dillard insists that he would have “relieved [a
supervisory deputy] immediately, if not sooner,” id. at 197, if he had heard that he told a cellblock
DEO or deputy not to subject male prisoners to a blanket drop, squat and cough search. These
protestations notwithstanding, Plaintiffs have no evidence that Marshal Dillard actually knew that
his alleged search policy was not being evenly enforced, let alone any evidence that Marshal Dillard
intended or directed such disparity as a way to purposefully discriminate against women arrestees.16
16 The record suggests many reasons why practices may have varied, not least of which appears to have been a singular lack of direction or oversight by those in command. See, e.g., Mitchell Dep. at 71–74, 87–88 (explaining that when he began at the Superior Court he was never instructed by Marshal Dillard or Chief Rowe how searches were to be conducted, but simply copied the practices of those around him); Bolls Dep. at 32, 39–42, 60, 62–63 (testifying that as cellblock supervisor he never had any conversations or instructions, nor was aware of written policies, on how to search arrestees, nor was this topic broached at any supervisors’ meetings he attended); Pls.’ Mem., [Attach. 20] Thomas Hedgepeth Dep. (July 18, 2007) at 82 (expressing that Marshal Dillard was a hands-off manager); Hedgepeth Dep. (7/17/07) at 225–27 (acknowledging that cellblock personnel did not like strip searching male arrestees and avoided doing so); Stover Dep. at 58 (noting that when supervisors were not around, he and other DEOs or deputies would often stop blanket strip searches of male arrestees because of their dislike of the practice); id. at 99 (“It’s not something that, you know, I wanted to do. I didn’t think it made any sense, personally.”); Brandt Dep. at 69 (explaining that neither he nor his fellow DEOs or deputies would conduct blanket strip searches of male arrestees because “I expressed my opinion that it wasn’t an appropriate search and they did not do the searches when I was there. . . I didn’t say, ‘Don’t you do it’ [to the other men]. I said, ‘I don’t think it’s a good practice,’ and my recollection is people that were there with me agreed and performed regular in-custody searches.”); Def.’s Dep. Excerpts II [Dkt. # 248], [Attach. 20] Carl Eugene Teeter Dep. (July 23, 2008) at 87–88, 124 (noting that male arrestees not all strip searched
-27-

Plaintiffs argue that all the contested evidence makes it totally incredible that Marshal Dillard did not at least know of the disparities in search practices, and that credibility is an issue for a jury to decide. See Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir. 2009). Marshal Dillard defends on the basis that “no one has testified that Marshal Dillard instructed them to search males and females differently, and no one who admits [to strip searching women but not men] . . . claims to have even informed Marshal Dillard of that practice.” Def.’s Reply [Dkt. # 250] at 16. The defense amounts to “ignorance is bliss,” which is usually insufficient to avoid a jury trial. But when it comes to holding a federal employee, acting within the scope of his employment, personally liable for a violation of the Fifth Amendment’s right to equal protection, a plaintiff must show purposeful and personal action to discriminate (in this case on gender). As a result, it would not be dispositive even if Marshal Dillard knew of the discriminatory search practices (which is not shown). Mere knowledge of or deliberate indifference to unequal treatment is not enough and despite the voluminous record created in this litigation, there is no circumstantial or direct evidence that Marshal Dillard purposefully directed that women and men be searched differently at the Superior Court cellblock.
Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Marshal Dillard is entitled to summary judgment on Plaintiffs’ Fifth
because of sheer numbers involved); Shealey Dep. at 166–67 (explaining that the ratio of men to women processed into the cellblock was approximately 4 to 1, so it was impractical to strip search every male arrestee: “If the numbers [of DEOs/deputies to arrestees] were equal, and the manpower and the time restraints were enough where we could strip everybody, we’d strip everybody”).
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Amendment claims. IV. CONCLUSION
For the reasons stated above, Plaintiffs Donna Curtis, Dianne Johnson, and Carolyn Montgomery will be dismissed without prejudice. Summary judgment will be denied to Plaintiffs on their Fourth Amendment claims and granted to Marshal Dillard on the Fourth and Fifth Amendment claims. Marshal Dillard’s Motion for Order to Decertify Class, see [Dkt. # 258], will be denied as moot. Accordingly, this case will be dismissed. A memorializing Order accompanies this Memorandum Opinion.

Dated: April 21, 2011

/s/ ROSEMARY M. COLLYER United States District Judge

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 Case 1:02-cv-02364-RMC Document 277 Filed 07/23/12 Page 1 of 2

~nih~b ~tat.es Qlourt of J\ppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-5115
Dianna Johnson, Appellee
Rubbiya Muhammed, Appellant
Carolyn Montgomery, Appellee
Dianne Wilkes, et al., Appellants
Donna Curtis, on behalf of all others similarly situated,
Appellee Sandra Clyburn, also known as Sandra Clayborne,
Appellant Sheryl Rutledge,
Appellee Anita Johnson Hairston,
Appellant
v.
Government of the District of Columbia and Todd Dillard, Individually and Officially, United States Marshal, D.C. Superior Court,
Appellees

September Term 2011
1 :02-cv-02364-RMC Filed On: July 20, 2012

Case 1:02-cv-02364-RMC Document 277 Filed 07/23/12 Page 2 of 2

~nitea ~tates Qlourt of ~ppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-5115

September Term 2011

BEFORE: Rogers, Tatel, and Garland, Circuit Judges
ORDER
Upon consideration of the motion for summary affirmance and the response thereto, appellants' motion regarding future proceedings and the federal appellee's response thereto, and the federal appellee's motion to govern further proceedings and appellants' opposition thereto, it is
ORDERED that this case be returned to the court's active docket. The court has determined that additional briefing of the motion for summary affirmance will not aid its disposition. It is
FURTHER ORDERED that the motion for summary affirmance be denied. The merits of the parties' positions are not so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
Because the court has determined that summary disposition is not in order, the Clerk is instructed to enter a briefing schedule and to calendar this case for presentation to a merits panel.
Per Curiam

Page 2

 
 461 F.Supp.2d 48 (2006)
Dianna JOHNSON, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 02-2364 (RMC).
United States District Court, District of Columbia.
November 14, 2006.
49 *49 Louis Allan Kleiman, Arlington, VA, William Charles Cole Claiborne, III, Law Offices of William Claiborne, Washington, DC, Barrett S. Litt, Paul J. Estuar, Litt, Estuar, Harrison, Miller & Kitson, LLP, Los Angeles, CA, for Plaintiffs.
Denise J. Baker, Office of the Attorney General for the District of Columbia, Oliver W. McDaniel, U.S. Attorney's Office for the District of Columbia, Civil Division, Lisa Sheri Goldfluss, United States Attorney's Office, Civil Division, Washington, DC, for Defendants.
MEMORANDUM OPINION & ORDER
COLLYER, District Judge.
Defendants the District of Columbia, former U.S. Marshal for the D.C. Superior Court Todd Dillard, and the U.S. Marshal's Service have moved to dismiss the First Amended Complaint under Fed. R.Civ.P. 12(b)(6). The motions have been fully briefed and the parties presented oral argument on October 31, 2006. After carefully considering the parties' briefs and arguments, the Court concludes that Defendants' motions must be denied.
50 *50 In resolving a Rule 12(b)(6) motion, the Court must treat the complaint's factual allegations 0907 including mixed questions of law and fact 0907 as true and draw all reasonable inferences in the plaintiffs favor. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). It is not necessary for the plaintiff to plead all elements of his prima facie case, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotations and citation omitted). The Court will not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003); Gilvin v. Fire, 259 F.3d 749, 756 (D.C.Cir.2001).
The District of Columbia argues that the First Amended Complaint fails to state a claim against it under 42 U.S.C. § 1983 because it did not establish the policy of strip searching pre-presentment arrestees at the D.C. Superior Court, none of its agents or employees participated in or authorized the strip searches, and it had no power to supervise or control the actions of former Marshal Dillard or the U.S. Marshal's Service. But the First Amended Complaint alleges that the District knew, or should have known, that U.S. Marshals at the D.C. Superior Court were unconstitutionally strip searching arrestees and yet, with deliberate indifference, continued to entrust its arrestees to former Marshal Dillard's custody. First Am. Compl. ¶¶ 110-120, 123-24, & 176-177. These allegations are sufficient to state a claim under § 1983. See Warren, 353 F.3d at 39; Baker v. District of Columbia, 326 F.3d 1302, 1306-07 (D.C.Cir.2003).
Former Marshal Dillard raises three arguments in support of his motion. First he argues that the claims against him must be dismissed because he is entitled to qualified immunity. The first step in deciding if qualified immunity applies is to determine whether the complaint alleges the deprivation of a constitutional right. Int'l Action Ctr. v. U.S., 365 F.3d 20, 24 (D.C.Cir.2004). Here, the First Amended Complaint alleges that U.S. Marshals 0907 at the direction of and pursuant to a policy developed by former Marshal Dillard 0907 subjected 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. See, e.g., First Am. Compl. ¶ 83. The First Amended Complaint also alleges that all female arrestees at the D.C. Superior Court were subjected to blanket strip searches, but similarly situated male arrestees were not strip searched. See id. ¶ 85. These allegations, if true, adequately allege violations of the Fourth and Fifth Amendments. See, e.g., Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir.2001) (holding that a blanket strip search policy at county jail violated Fourth Amendment); Yates v. Stalder, 217 F.3d 332, 334 (5th Cir.2000) (holding that treating similarly situated male and female inmates differently can constitute an equal protection violation).
The next question in deciding qualified immunity is whether the constitutional rights in question were clearly established at the time of the alleged violation. Int'l Action Ctr., 365 F.3d at 24. Although there are no D.C. Circuit opinions addressing the exact conduct alleged here, relevant Supreme Court authority provides sufficiently clear 51 guidance to government officials regarding the proper scope of *51 strip searches of arrestees such as the putative class members. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (establishing a balancing test to determine whether a strip search is valid under the Fourth Amendment); U.S. v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (holding that governmental discrimination between males and females violates Equal Protection unless the government shows an "exceedingly persuasive justification" for the disparate treatment). Based on these authorities, the Court finds that it would have been clear to any reasonable official in former Marshal Dillard's position that a blanket strip-search policy under which all female 0907 but not male 0907 arrestees were strip searched, regardless of the offenses with which they were charged or any individualized suspicion that they were concealing contraband, was unconstitutional under the Fourth and Fifth Amendments. Accordingly, former Marshal Dillard is not entitled to qualified immunity at this stage in the proceeding.
Second, former Marshal Dillard argues that the First Amended Complaint fails to state a claim against him under § 1983 because he was not acting under color of state law when the alleged strip searches occurred. A person, including a federal agent, may be considered a state actor for purposes of § 1983 if he is a "willful participant in joint activity with the State or its agents." Williams v. U.S., 396 F.3d 412, 414 (D.C.Cir.2005); see also Case v. Milewski, 327 F.3d 564, 567 (7th Cir.2003) ("it is assumed that a § 1983 action can lie against federal employees 0907 as it can against private individuals 0907 if they conspire or act in concert with state officials to deprive a person of her civil rights under color of state law."); cf. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (holding that conduct is actionable under § 1983 if it is "fairly attributable to the State."). Here, the First Amended Complaint alleges that former Marshal Dillard and the District of Columbia acted in concert with the purpose of executing a jointly developed unconstitutional policy of strip searching all female 0907 but not male 0907 arrestees without individualized suspicion. See, e.g., First Am. Compl. ¶¶ 69, 85, 131, 185. The Court concludes that these allegations 0907 which must be treated as true at this stage in the proceedings 0907 raise sufficient questions of contested fact so that it cannot determine, at this time, that former Marshal would not qualify as a "state actor" as a matter of law.
Third, former Marshal Dillard argues that the First Amended Complaint fails to allege that he personally engaged in conduct that violated Plaintiffs' constitutional rights. On the contrary, the First Amended Complaint alleges that former Marshal Dillard developed the blanket strip search policy that led to Plaintiffs' injuries. See First Am. Compl. ¶¶ 173 & 179.
Finally, the U.S. Marshal's Service argues that the claims against it for injunctive relief must be dismissed for lack of jurisdiction because Plaintiffs have not demonstrated that they face a reasonable probability of again being subjected to an unconstitutional strip search at the D.C. Superior Court. See City of Los Angeles v. Lyons, 461 U.S. 95, 109-110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that a plaintiff lacks standing to enjoin a government agency from engaging in an unconstitutional practice unless the plaintiff demonstrates a "real and immediate threat of again being" subject to the practice). The First Amendment Complaint arguably alleges that at least some of the named plaintiffs might again be arrested and subjected to strip searches at the D.C. Superior 52 Court. See First Am. Compl. ¶¶ 142-145, *52 167-170, 205-206. But because determinations regarding standing to seek injunctive relief also bear upon class certification, the Court believes it preferable to resolve this issue in the context of Plaintiffs' motion to certify the class. See Barnett v. County of Contra Costa, Case No. 04-4437 (TEH), Order at 5 (N.D.Cal. Oct. 31, 2005). The U.S. Marshal's Service is free to raise this issue again at the appropriate time.

Based on the foregoing, it is hereby ORDERED that [Dkt. # 63] the District of Columbia's Motion to Dismiss is DENIED, and that [Dkt. # 62] the Federal Defendants' Motion to Dismiss is DENIED. SO ORDERED.
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 Johnson v. Government of District of Columbia, Not Reported in F.3d (2007)

2007 WL 1760078 Only the Westlaw citation is currently available.
United States Court of Appeals, District of Columbia Circuit.
Dianna JOHNSON, et al., Appellees v.
The GOVERNMENT OF the DISTRICT OF COLUMBIA and John Doe, Number 1-20, Deputy
Marshals, D.C. Superior Court, Appellees United States Marshals Service and Todd Dillard, Individually United States Marshal, D.C. Superior
Court, Appellants.
No. 07-5037. | June 11, 2007.
Attorneys and Law Firms
Louis Allan Kleiman, Law Office of Louis Kleiman, Arlington, VA, for Appellees.
James Creighton McKay, Jr., Senior Assistant Attorney General, Edward Eugene Schwab, Deputy Attorney

General, Todd Sunhwae Kim, Solicitor General, Office of Attorney General for the District of Columbia Office of the Solicitor General, Oliver W. McDaniel, R. Craig Lawrence, Assistant U.S. Attorney, U.S. Attorney’s Office, Washington, DC, for Appellants.
Opinion
ORDER
*1 Upon consideration of appellant’s motion to dismiss appeal, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the District Court a certified copy of this order in lieu of formal mandate.
	  

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 Case 1:02-cv-02364-RMC Document 278-1 Filed 08/13/14 Page 1 of 25
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2013 Decided November 15, 2013 No. 11-5115
DIANNA JOHNSON, ET AL., APPELLEES
RUBBIYA MUHAMMED, ET AL., APPELLANTS v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA AND TODD DILLARD, INDIVIDUALLY AND OFFICIALLY, UNITED STATES
MARSHAL, D.C. SUPERIOR COURT, APPELLEES
Appeal from the United States District Court for the District of Columbia (No. 1:02-cv-02364)
William Charles Cole Claiborne III argued the cause for appellants. With him on the briefs were Barrett S. Litt and Paul J. Estuar. Lynn E. Cunningham entered an appearance. Robin M. Meriweather, Assistant U.S. Attorney, argued the cause for appellee Todd Dillard. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence and W. Mark Nebeker, Assistant U.S. Attorneys.

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Stacy L. Anderson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee District of Columbia. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General. Louis A. Kleiman entered an appearance.
Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROGERS.
TATEL, Circuit Judge: Concerned that contraband poses significant dangers to inmates and employees, many penal institutions strip search incoming detainees. The appropriateness of these invasive procedures doubtless looks different from the perspective of detainees such as Appellants—women forced to endure strip searches while awaiting presentment hearings at the District of Columbia Superior Court. Alleging that such searches violate the Fourth Amendment and, where men are not similarly strip searched, the Fifth Amendment’s equal protection guarantee, these women filed this class action against the District of Columbia and the former United States Marshal for the Superior Court who administered the Superior Court cellblock. Because men and women at the cellblock are now strip searched only upon individualized reasonable suspicion, we have no occasion to consider whether the policies under which class members were strip searched may continue. Rather, the only question in this case is whether class members can recover damages from the District or from the former Superior Court Marshal. The district court granted summary judgment to the District, concluding that because the Superior Court Marshal in

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charge of the cellblock was at all times a federal official acting under color of federal law, the city had no authority to prevent the strip searches. The district court also granted summary judgment to the Superior Court Marshal, finding him entitled to qualified immunity. We affirm both rulings.
I.
Under the Anti-Drug Abuse Act of 1988, Pub. L. No. 100690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512–15 (1988) (codified at 28 U.S.C. §§ 561–569), two United States Marshals serve the District of Columbia. The first, the U.S. Marshal for the District of Columbia, serves the U.S. District Court and this Court. 28 U.S.C. § 566(b). The second, the U.S. Marshal for the District of Columbia Superior Court, serves that court only. 28 U.S.C. § 561(c). During the time of the events at issue in this case, Appellee, Todd Dillard, served as Superior Court Marshal.
Sometime in the mid- to late-1990s, Dillard, concerned that detainees were bringing weapons, drugs, and other contraband into the cellblock, began requiring all incoming detainees to undergo a three-step search. Detainees first passed through metal detectors; they were then patted down by deputy marshals; and, finally, they were required to remove their clothing, squat, and cough to dislodge any hidden contraband. The parties refer to these “drop, squat, and cough” searches as strip searches. Given that “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we infer from the evidence presented that despite Dillard’s facially gender-neutral policy, deputy marshals in fact subjected male detainees to strip searches only upon individualized reasonable suspicion. By contrast, all women were forced to drop, squat, and cough. This included female pre-presentment arrestees charged with nonviolent, non-drug offenses. After completing the three-step

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search process, female pre-presentment arrestees proceeded to interview rooms outside presentment courtrooms. Roughly eighty percent of female arrestees were released following these hearings.
In 2002, a class of women detained and strip searched at the Superior Court cellblock filed this suit seeking damages and injunctive relief. After the United States Marshals Service halted strip searches without individualized reasonable suspicion, class members abandoned their claims for injunctive relief and filed an amended complaint in which they sought only monetary relief from the District of Columbia and Dillard, whom they sued in his personal and professional capacities. The District and Dillard separately moved to dismiss the complaint for failing to state any claims upon which relief could be granted. The district court denied both motions and certified two classes: a Fourth Amendment Class and a Fifth Amendment Class. The Fifth Amendment Class includes all female pre-presentment arrestees held at the Superior Court cellblock between December 2, 1999 and April 25, 2003 and subjected to strip searches “under similar circumstances for which men arrestees were not.” See Johnson v. District of Columbia, 584 F. Supp. 2d 83, 86 (D.D.C. 2008). The Fourth Amendment Class includes all female prepresentment arrestees who, during the same time period, were strip searched without individualized reasonable suspicion or probable cause and who were arrested for non-drug, non-violent offenses. See id.
Following class certification, the district court entered summary judgment in favor of the District. Believing that the Superior Court Marshal is a federal official who acted at all times under color of federal law, and that the District therefore had no choice but to turn pre-presentment arrestees over to the

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Marshal, the court concluded that the District could not be held liable for any unconstitutional acts of the Marshal. Id. at 90–93.
After further discovery, the district court orally granted Dillard summary judgment on all claims against him in his professional capacity, finding that his status as a federal official left him beyond the reach of 42 U.S.C. § 1983. See Johnson v. District of Columbia, 780 F. Supp. 2d 62, 68 (D.D.C. 2011) (describing this holding). Several months later, the district court, finding Dillard entitled to qualified immunity, granted him summary judgment on all claims against him in his personal capacity. As for the claims of Fourth Amendment Class members, the district court, relying on our recent decision in Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011), where we rejected similar Fourth Amendment claims brought by male detainees against the very same Marshal Dillard, see id. at 382, concluded that any Fourth Amendment rights Dillard might have violated were insufficiently clearly established at the time of the violation. Johnson, 780 F. Supp. 2d at 73–75. As for the claims of Fifth Amendment Class members, the court, relying on Ashcroft v. Iqbal, 556 U.S. 662 (2009), found no Equal Protection violation because nothing in the record indicated that Dillard intended to treat women differently from men. Johnson, at 780 F. Supp. 2d at 79–81.
On appeal, class members press their claims against the District and Dillard, but only in his personal capacity. We review the district court’s grants of summary judgment de novo, viewing the evidence in the light most favorable to class members. See, e.g., Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). We first consider whether class members may hold the District liable for Dillard’s conduct. Then, taking the Fourth and Fifth Amendment claims separately, we consider whether Dillard is entitled to qualified immunity.

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II. Members of both the Fourth and Fifth Amendment Classes seek to hold the District of Columbia liable under 42 U.S.C. § 1983 for the Superior Court Marshal’s conduct. As the Supreme Court explained in Monell v. Department of Social Services, 436 U.S. 658 (1978), municipalities can be held liable under section 1983 only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694. Conceding that no express District policy gave rise to their injuries, class members offer two theories—the “organic theory” and the “entrustment theory”—to explain how the District might nonetheless be liable under section 1983 for Dillard’s conduct.
Organic Theory According to this theory, the Superior Court Marshal’s Office is “part of the organic government of the District of Columbia just as much as the Mayor, City Council and Superior Court.” Appellants’ Br. 44 (emphasis omitted). Claiming that the Superior Court is best understood as a state court, not a federal court, class members argue that the Superior Court Marshal derives his authority from “the inherent powers of the Superior Court.” Appellants’ Br. 50. Insofar as the Superior Court Marshal “handles pre-presentment arrestees . . . as the policy maker for the District, by delegation from the policymaker, or pursuant to a widespread custom or practice in which the District of Columbia acquiesced,” Appellants’ Br. 44, class members urge us to find the District liable under section 1983 for any unconstitutional acts of the Marshal.
But we agree with the district court that the Superior Court Marshal is not a District official. Rather, the Superior Court

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Marshal “logically and expressly derives” his authority from federal law, specifically the Anti-Drug Abuse Act of 1988. See Johnson, 584 F. Supp. 2d at 90. Pursuant to that Act, “[t]he President shall appoint, by and with the advice and consent of the Senate, a United States marshal for each judicial district of the United States and for the Superior Court of the District of Columbia.” 28 U.S.C. § 561(c). Like all other U.S. Marshals, the Superior Court Marshal “shall be an official of the Service and shall serve under the direction of the Director,” id., who “shall supervise and direct the United States Marshals Service in the performance of its duties.” 28 U.S.C. § 561(g). Each U.S. Marshal serves a four year term unless he resigns or is removed by the President. 28 U.S.C. § 561(d). Thus, Dillard, as Superior Court Marshal, was appointed and confirmed through a federal process, served as part of a federal agency under the direction of a federal official, and at all times could have been removed by the President. Under these circumstances, Dillard was hardly as much “part of the organic government of the District of Columbia . . . as the Mayor.” Appellants’ Br. 44 (emphasis omitted).
Acknowledging that the Superior Court Marshal qualifies as a federal official for purposes of appointment and removal, class members nonetheless argue that he derives no authority from federal law. But why would Congress create a U.S. Marshal’s office for a particular court and yet deny the holder of that office any federal authority? Class members have no answer, nor do we. Instead, class members find this bizarre result implicit in two provisions of the Anti-Drug Abuse Act. They first point to section 566(a), which outlines the “primary role and mission of the United States Marshals Service.” 28 U.S.C. § 566(a). Under this section, U.S. Marshals “provide for the security and . . . obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court

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of International Trade, and the United States Tax Court, as provided by law.” Id. As class members emphasize, this list does not include the Superior Court. Second, class members seize on the word “Federal” in section 566(e)(1), which authorizes the United States Marshals Service “to provide for the personal protection of Federal jurists, court officers, witnesses, and other threatened persons.” 28 U.S.C. § 566(e)(1). Class members argue that inclusion of the word “Federal” makes the entire subsection inapplicable to the Superior Court because, according to them, the Superior Court is equivalent to a state court. From these two provisions, class members conclude, “[T]he Act addresses the USMS’s role regarding the federal courts (as opposed to addressing at all the local D.C. Courts).” Appellants’ Br. 48.
Class members’ reliance on these provisions is misplaced. For one thing, section 566(a) lays out the “primary”—not “exclusive”—“role and mission of the United States Marshals Service.” Nothing in section 566(a) suggests that Congress intended to deprive the Superior Court Marshal of all federal authority within the court Congress designated that Marshal to serve. Moreover, given the dual federal/state status of Superior Court judges, Congress would have had to have used more specific language than “Federal jurist” to exclude them from section 566(e)(1)’s authorizations, especially given Congress’s decision to create the office of Superior Court Marshal. See United States v. Stewart, 104 F.3d 1377, 1391 (D.C. Cir. 1997) (noting that D.C. Superior Court judges are “Article I . . . judges, whom Congress intended to be analogous to state court judges” and holding that a federal statute “authorized [them] to act as federal committing magistrates”). In any event, the statutory scheme gives the District no power to exercise authority over or delegate authority to the Superior Court Marshal. Instead, the statute clearly says that the Superior Court Marshal serves at the

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“direction” of the United States Marshals Service. See 28 U.S.C. § 561(c). Thus, any authority Dillard exercised as Superior Court Marshal, whether delegated by the United States Marshals Service or provided directly by statute, was federal in nature.
Because Dillard, as Superior Court Marshal, was at all times a federal official acting under color of federal law, the organic theory provides no basis for finding the District liable under section 1983.
Entrustment Theory Under this theory, the District exhibited deliberate indifference to Dillard’s unconstitutional conduct by continuing to send pre-presentment arrestees to the Superior Court cellblock despite knowing they would be strip searched there. Holding a municipality liable for its deliberate indifference requires more than “a showing of simple or even heightened negligence.” Board of County Commissioners v. Brown, 520 U.S. 397, 407 (1997); see also City of Canton v. Harris, 489 U.S. 378, 390 (1989) (requiring that plaintiffs show that the municipality’s policy was “so likely to result in the violation of constitutional rights,” and the need to change that policy “so obvious,” that policymakers “can reasonably be said to have been deliberately indifferent to the need”). To prevail on this theory, class members would have to show at least that the District had actual or constructive notice of unconstitutional strip search practices, as well as discretion to stop sending pre-presentment arrestees to the Superior Court Marshal. See Warren v. District of Columbia, 353 F.3d 36, 36–39 (D.C. Cir. 2004) (“[F]aced with actual or constructive knowledge that its agents will probably violate constitutional rights, the city may not adopt a policy of inaction.”).

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We agree with the district court that even assuming that the District had notice of the strip search practices and that those practices were unconstitutional, the District lacked the discretion necessary for class members to prevail. Given that Dillard was at all times acting under color of federal law, see supra 6–9, the District had no authority to prevent him from conducting strip searches of arrestees upon their arrival at the Superior Court. Relying on two circuit court decisions, one by this Court and one by the Sixth Circuit, see Warren, 353 F.3d 36; Deaton v. Montgomery County, 989 F.2d 885 (6th Cir. 1993), for the proposition that “[i]t does not matter if the transferor has no control over the facility in which it places its prisoners,” Appellants’ Br. 34, class members believe they can prevail even if Dillard was at all times a federal official acting under color of federal law. In each of the cited cases, however, the municipality had contracted to send its prisoners to a penal facility; even though the municipality exercised no direct control over policies and practices at the facility, it retained power to cancel the contract in the event of constitutional violations. See Warren, 353 F.3d at 37; Deaton, 989 F.2d at 885. Here, by contrast, nothing in the record suggests that the District could have held presentment hearings somewhere other than the Superior Court. And although class members insist that the District had statutory authority to bypass the Superior Court Marshal and deliver prepresentment arrestees directly to Superior Court judges, the statutory provisions class members rely on are ambiguous at best. Thus, the District’s failure to embrace class members’ statutory interpretation hardly demonstrates “deliberate indifference to the rights” of arrestees. See Canton, 489 U.S. at 388. Class members also claim that the District would lack authority to issue citations or release arrestees on bond if it had to deliver all arrestees to the Superior Court Marshal. But the Marshal exercises federal authority over persons actually delivered to the Superior Court for presentment, not over

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everyone the Metropolitan Police Department detains. And while the District might issue citations for minor offenses such as traffic violations, arrestees have a right to a presentment hearing. See D.C. SUPERIOR CT. R. CRIM. P. 5(a); see also County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (“[W]arrantless arrests are permitted but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975))).
Because neither the organic nor the entrustment theory transforms the Superior Court Marshal into a District policymaker for purposes of section 1983, the District cannot be held liable for Dillard’s conduct. We thus turn to the question of Dillard’s liability.
III.
Relying on Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), Fourth and Fifth Amendment Class members bring constitutional tort claims against Dillard in his personal capacity. In response, Dillard argues that he is entitled to qualified immunity. While carrying out their official duties, federal officials enjoy qualified immunity from damages suits in order to “shield them from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). To overcome a claim of qualified immunity, plaintiffs must show both that an official “violated a constitutional right” and that “the right was clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200–01 (2001). The Supreme Court has made clear that courts may address the two stages of the qualified immunity analysis in either order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in

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deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). Grateful for that flexibility, we address the claims of the two classes in turn.
The Fourth Amendment Class
Fourth Amendment Class members urge us to find that “the Fourth Amendment prohibits blanket strip searches of [detainees] arrested on minor charges,” at least where no detainees were held in the general population and “there [is] no significant contraband problem.” Appellants’ Br. 17, 26–28. Like the district court, however, we have no need to reach the merits of this contested constitutional question in order to find Dillard entitled to qualified immunity. Under our decision in Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), any Fourth Amendment right Dillard might have violated was insufficiently clearly established at the time. See Pearson, 555 U.S. at 237 (approving of addressing only the second stage of the qualified immunity analysis where “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right”).
In Bame, this Court, addressing only the “clearly established” stage of the qualified immunity analysis, found Dillard entitled to qualified immunity for Fourth Amendment claims brought by male plaintiffs—claims otherwise virtually indistinguishable from those brought by Fourth Amendment Class members in this case. Like class members, Bame plaintiffs were arrested for non-drug, non-violent offenses, held temporarily at “various police holding facilities,” brought to the Superior Court “to await disposition of the charges against them,” “strip searched upon arrival” at the Superior Court cellblock, placed together in holding cells, and released directly from the Superior Court cellblock without spending any time in

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general jail populations. Bame, 637 F.3d at 382–83. The strip searches at issue in Bame occurred in September 2002, near the end of the Fourth Amendment Class period. Id. at 383.
According to Bame plaintiffs, by the time Dillard had implemented the challenged policies, the circuits had reached a “consensus” that policies similar to Dillard’s violated the Fourth Amendment. See Bame, 637 F.3d at 385. But in Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court rejected a Fourth Amendment challenge to a penal strip search policy and instructed courts evaluating such challenges to “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.” Id. at 559. In Bame, we held that Dillard, balancing these factors, could reasonably have concluded that his strip search policy was constitutional. Bame, 637 F.3d at 386 (“Clearly, it was reasonable for Dillard, like the courts of appeal that reached the issue after 2002, to believe strip searching all male arrestees was consistent with the law as set forth in Bell [and United States Marshals Service policy statements].”). Although Bame plaintiffs, like class members here, emphasized that they were charged with minor non-drug, non-violent offenses, we noted that “[t]he policy that the Court categorically upheld in Bell applied to all inmates, including those charged with lesser offenses and even those charged with no wrongdoing at all who were being held as witnesses in protective custody.” Id. at 387 (internal quotation marks omitted). Although Bame plaintiffs, like class members here, emphasized the short duration of their stay at the Superior Court cellblock, we responded that “[c]ontrary to the plaintiffs’ contention, nothing whatsoever in Bell suggests its holding is limited to overnight detention facilities.” Id. Although Bame plaintiffs, like class members here, insisted that they never came into contact with detainees housed in general jail populations, we emphasized that

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“Bell [nowhere] mention[ed], let alone rel[ied] upon, [intermingling with other detainees] as a reason for upholding the strip searches. In any event, arrestees held at the Superior Court were in fact commingled with other arrestees in holding cells; no one suggests each arrestee was put in a separate cell.” Id. And finally, although Bame plaintiffs, like class members here, challenged the sufficiency of Dillard’s contraband justification, we concluded that “the record here substantiates Dillard’s point that the Superior Court had a persistent problem with contraband being smuggled into the cellblock, the very reason for strip searches.” Id.
Fourth Amendment Class members attempt to distinguish Bame in three ways. First, they point to a consent agreement— the so-called Morgan Order—in which the District promised “not [to] conduct strip or squat searches of female police cases housed at the District of Columbia Detention Facility in the absence of a reasonable suspicion.” See Morgan v. Barry, 596 F. Supp. 897, 898 (D.D.C. 1984) (explaining the agreement) (internal quotation marks omitted). According to class members, this agreement, which protects only female arrestees and thus was not at issue in Bame, put Dillard on notice that strip searching class members would violate their Fourth Amendment rights. In the Morgan Order, however, the District never concedes that any particular strip search policies violate the Fourth Amendment. Moreover, the Morgan Order binds only the District and its agents at the District of Columbia Detention Facility, not Dillard, a federal official in charge of the Superior Court cellblock.
Second, Fourth Amendment Class members claim that in Bame we addressed the constitutionality of strip searches without “individualized, reasonable suspicion” whereas they focus on “the right of arrestees, not entering general population,

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to be free from strip searches prior to presentment to the court.” Appellants’ Br. 70. Contrary to class members’ assertion, however, in Bame we expressly rejected the notion that Bell limited penal strip searches to overnight, general population facilities. See Bame, 637 F.3d at 387.
Third, Fourth Amendment Class members argue that “any contraband problem that may have existed in the Superior Court cellblock had evaporated by 1999 or 2000,” Appellants’ Br. 29, and that the Superior Court Marshal’s failure to strip search all men belies the asserted effectiveness of strip searches. But in Bame we evaluated similar evidence of contraband and found that the Superior Court suffered from a “persistent problem with contraband” as late as 2002. 637 F.3d at 387. In any event, as the Supreme Court observed in Bell, a dearth of recovered contraband “may be more a testament to the effectiveness of this search technique as a deterrent.” Bell, 441 U.S. at 559. And even if deputy marshals did not strip search all men, that hardly compels the conclusion that Dillard understood strip searches to be generally ineffective.
Thus, like the district court, we see no daylight between the claims we rejected in Bame and the ones Fourth Amendment Class members press here. See Johnson, 780 F. Supp. 2d at 74– 75 (“[T]he claims addressed in Bame and the instant case cannot be distinguished in any meaningful way.”). Although class members obviously disagree with Bame, that decision is binding on us. As a result, Dillard is entitled to qualified immunity because the Fourth Amendment right he is accused of violating was not clearly established at the time of any violation.
The Fifth Amendment Class Fifth Amendment Class members maintain that the strip search gender disparity violated the Fifth Amendment’s equal

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protection guarantee. We resolve these claims, unlike the claims of the Fourth Amendment class, at the first stage of the qualified immunity analysis by examining whether Dillard violated class members’ Fifth Amendment rights.
The parties agree that Ashcroft v. Iqbal, 556 U.S. 662 (2009), controls this issue. In Iqbal, the Supreme Court addressed “[t]he factors necessary to establish a Bivens violation . . . [w]here the claim is invidious discrimination in contravention of the . . . Fifth Amendment[].” Id. at 676. Because “purposeful discrimination requires more than ‘intent as volition or intent as awareness of consequences,’” id. (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)), supervisors face no liability for mere “knowledge and acquiescence in their subordinates’ use of discriminatory criteria,” id. at 677 (internal quotation marks omitted). Instead, under Iqbal, plaintiffs must show that supervisors acted with discriminatory purpose. Id. (“[P]urpose rather than knowledge is required . . . .”). “[T]he plaintiff must plausibly plead and eventually prove not only that the official’s subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well.” Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010).
Acknowledging that they “must prove Dillard intended to discriminate against women arrestees,” Fifth Amendment Class members argue that Dillard “intended a policy, formal or informal, of women-only strip searches.” Appellants’ Br. 52. For his part, Dillard insists that his policy throughout the class period required “every prisoner”—both male and female—to go through the strip search process upon arrival at the Superior Court cellblock. See, e.g., Dillard Bame Deposition 89:6–98:3. Although class members point to some evidence from which we might infer that Dillard knew deputies were implementing his

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gender neutral policy in a gender imbalanced manner, plenty of other evidence suggests that Dillard was largely missing in action throughout the class period. But even assuming class members could show that Dillard knew what was going on at the cellblock, they have pointed to no evidence from which we could infer that Dillard himself intended to treat women differently from men. For instance, class members cite a former deputy marshal’s testimony that the practice in the cellblock was to strip search all female detainees but not all males because of certain “differences in the anatomy.” Shealey Deposition 158:8– 162:22. But that same former deputy went on to testify that any disparate treatment did not reflect Dillard’s policy: “[Supervisors] put [no] emphasis on females. They basically [made] sure that everybody was thoroughly searched coming into that cell block, and that we had policies and procedures in place to conduct those searches to make sure that no contraband came into those cell blocks.” Shealey Deposition 164:7–13. This is hardly an isolated example. Indeed, class members cite no testimony by any subordinate indicating that the gender disparity resulted from Dillard’s instruction or intention.
Class members also claim that the United States Marshals Service admitted in interrogatory responses in two other cases that despite Dillard’s assertions “the ‘more customized’ policy was to stop strip searching males and to continue strip searching females.” Appellants’ Br. 60. But these responses, both written by the same deputy marshal who testified that supervisors “put [no] emphasis on females,” describe the “practice” among deputies at the cellblock, not Dillard’s policies. Helton Interrogatory Response 4; Clifton Interrogatory Response 5.
In a final effort to demonstrate discriminatory purpose, class members ask us to grant them an adverse inference from missing evidence. Specifically, they claim that although Dillard prepared

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a written policy statement during the class period laying out Superior Court operating procedures, he failed to produce a copy during discovery. “Because defendant never acknowledged or produced Dillard’s written search policy,” class members assert, “plaintiffs are entitled to an adverse inference that the policy was to strip search all female prisoners but not males.” Appellants’ Br. 58. Dillard, however, has not only consistently denied the existence of any undisclosed policy statement but has also maintained that he left behind all official documents at the end of his term as Superior Court Marshal because “they were government property.” Dillard Br. 65. Even assuming an undisclosed policy statement once existed, an adverse inference from missing evidence is appropriate only “if it is peculiarly within the power of one party to produce the evidence . . . . The party complaining of the missing evidence bears the burden of demonstrating that it is peculiarly in the opposing party’s control.” Czekalski v. LaHood, 589 F.3d 449, 455 (D.C. Cir. 2009) (internal quotation marks omitted). Since class members nowhere dispute Dillard’s explanation for why he left behind all official documents, they have failed to show that the policy statement was ever “peculiarly within [Dillard’s] power . . . to produce” or “peculiarly in [Dillard’s] control.” Id.
We thus agree with the district court that “there is no circumstantial or direct evidence that Marshal Dillard purposefully directed that women and men be searched differently at the Superior Court cellblock.” Johnson, 780 F. Supp. 2d at 81. Under Iqbal, then, Dillard is entitled to qualified immunity because class members have failed to show that he violated their Fifth Amendment rights.

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19 IV. For the foregoing reasons, we affirm.

So ordered.

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ROGERS, Circuit Judge, concurring in part and concurring in the judgment. I write principally because this court, as in ten other circuits, should “clearly establish[],” Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982), that indiscriminate strip searching of individuals awaiting presentment on non-violent, non-drug offenses who are not held in the general population is unconstitutional under the Fourth Amendment to the United States Constitution in the absence of reasonable suspicion an individual possesses contraband or weapons. See Bame v. Dillard, 637 F.3d 380, 388 (D.C. Cir. 2011) (Rogers, J., dissenting).
I.
In the absence of en banc review, Bame, 637 F.3d 380, is the law of the circuit, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). In Bame, the court applied the doctrine of constitutional avoidance and did not decide whether a Fourth Amendment violation occurred. See Bame, 637 F.3d at 384 (citing Pearson v. Callahan, 555 U.S. 223 (2009)); cf. Op. at 12. Since Bame was decided the Supreme Court in Camreta v. Greene, ––– U.S. –––, 131 S. Ct. 2020 (2011), has underscored the undesirability of the “flexibility,” Op. at 12, afforded to courts under Pearson v. Callahan to avoid deciding whether a constitutional violation has occurred where the defendant is entitled to qualified immunity. Not deciding the constitutional question “threatens to leave standards of official conduct permanently in limbo.” Camreta, 131 S. Ct. at 2031. By proceeding directly to the immunity question, not only do “[c]ourts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements,” id., but the failure to decide constitutional questions “may frustrate ‘the development of constitutional precedent’ and the promotion of law-abiding behavior,” id. (quoting Pearson, 555 U.S. at 237).

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2
Also since Bame, six Justices of the Supreme Court have expressed unease with the type of indiscriminate strip searching engaged in by the Superior Court Marshal’s Office that is challenged here and was challenged in Bame. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, ––– U.S. –––, 132 S. Ct. 1510, 1523 (2012) (Roberts, CJ., concurring); id. at 1524 (Alito, J., concurring); id. at 1525 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting). The Supreme Court’s expression of unease is not new, appearing even in the context of post-arraignment defendants held in the general prison population. See Bell v. Wolfish, 441 U.S. 520, 558 (1979) (“[T]his practice instinctively gives us the most pause.”).
Nearly every other circuit court of appeals (and the District of Columbia’s highest court, see United States v. Scott, 987 A.2d 1180, 1196–97 (D.C. 2010)) has understood that the humiliating and essentially non-productive practice of strip searching prearraignment arrestees not held in the general population is an unreasonable search under the Fourth Amendment in the absence of reasonable suspicion. See Bame, 637 F.3d at 391–92, 395 (Rogers, J., dissenting) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals); see Powell v. Barrett, 541 F.3d 1298, 1300–02 (11th Cir. 2008) (en banc); Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 980–81 (9th Cir. 2010) (en banc). The Third Circuit has yet to address the issue, rejecting only a Fourth Amendment challenge to blanket strip searches upon arrestees admission to the general jail population. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 621 F.3d 296, 298–99, 311 (3d Cir. 2010). Evidence before the courts and in the instant case confirms that modern technology and law enforcement experience have shown that indiscriminate strip searching of non-violent, non-drug pre-arraignment arrestees after the use of metal detectors and patdowns to locate contraband rarely yields additional security benefits. See, e.g.,

Case 1:02-cv-02364-RMC Document 278-1 Filed 08/13/14 Page 22 of 25
3
Roberts v. State of R.I., 239 F.3d 107, 112 (1st Cir. 2001); see id. (citing cf. Mary Beth G. v. City of Chicago, 723 F.3d 1263, 1272–73 (7th Cir. 1983)); Appellants’ Ex. 410 (compiling incident reports). Contrary court findings involve the prison environment where smuggling of contraband “is all too common an occurrence” and deference is due to the policy judgments of prison administrators. Bell v. Wolfish, 441 U.S. at 559; see also Florence, 621 F.3d at 310.
Members of the Fourth Amendment class here were not being held in the general population with post-arraignment arrestees and strip searches in their circumstances illustrate one aspect of the Justices’ unease in Florence, 132 S. Ct. at 1523, 1524, 1525. Applying the canon of constitutional avoidance in this circuit is unwarranted, particularly in view of the recurring court challenges to indiscriminate strip searching by the U.S. Marshals Service in the Nation’s Capital, the frequent situs of demonstrations as in Bame. See Helton v. United States, 191 F. Supp. 2d 179 (D.D.C. 2002); Clifton v. United States, No. 020578 (D.D.C. Mar. 26, 2002); see also Morgan v. Dist. of Columbia, No. 81-1419 (D.D.C. July 22, 1981), applied in Morgan v. Barry, 596 F. Supp. 897, 898–99 (D.D.C. 1984). The United States advises that the U.S. Marshals Service has abandoned the challenged strip searching policy and practice. See Appellee Dillard Br. 59 n.17; Op. at 2. This does not ensure that the practice will not be revived, much less provide guidance for new policies and practices, promote law-abiding behavior, or justify the court in not “clearly establish[ing]” that the Fourth Amendment rights of the appellant class were violated by the Superior Court Marshal. Joining the ten other circuit courts of appeals, I would hold that the indiscriminate strip searching of the Fourth Amendment class in the absence of reasonable suspicion violated the Fourth Amendment.

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4
II.
Otherwise, I generally agree that appellants’ claims fail.
A. The Superior Court Marshal is a federal official who was acting under color of federal law, and the District of Columbia cannot be held liable for the challenged actions of Marshal Dillard. Op. at 9.
Somewhat less persuasive is the District of Columbia’s suggestion that it “had no choice,” Appellee D.C. Br. 41, not to turn over to the Superior Court Marshal for presentment individuals arrested by the Metropolitan Police Department, regardless of whether the Marshal’s strip searching practices violated the Fourth Amendment rights of non-violent, non-drug pre-arraignment arrestees. The District of Columbia can sue as well as be sued, see D.C. Code § 1-102, and can seek the aid of the courts to protect individuals in its custody. Appellants point to the District of Columbia’s obligation to ensure the enforcement of the order in Morgan v. Barry, 596 F. Supp. 897, 898 (D.D.C. 1984), that barred its own officers from strip searching female arrestees housed at the District of Columbia Detention Facility in the absence of a “reasonable suspicion that a weapon, contraband or evidence of a crime are concealed on the person or in the clothing of the arrestee which the District [of Columbia] or its agents reasonably believe can only be discovered by a strip or squat search.” Cf. Washington v. United States, 594 A.2d 1050, 1052 (D.C. 1991) (quoting MPD Gen. Order 502.1, Processing Prisoners 3, § B(5) barring body cavity searches of arrestees by police officers). The District of Columbia did not seek such aid on behalf of the Fourth Amendment class, but at the time there was neither an outstanding order with respect to the Superior Court Marshal, nor a decision by this court (or the D.C. Court of Appeals), “clearly establish[ing]” that blanket strip searching of pre-

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5
arraignment arrestees like the Fourth Amendment class is unreasonable and a violation of the Fourth Amendment.
B. With regard to the constitutional challenges, because Bame, 637 F.3d at 386, is the law of the circuit Marshal Dillard is entitled to qualified immunity on the Fourth Amendment claims. Op. at 12. Given appellants’ agreement that Ashcroft v. Iqbal, 556 U.S. 662 (2009), is controlling at the summary judgment stage of the proceedings, Op. at 16, the Fifth Amendment claims fail for lack of evidence of a constitutional violation. Op. at 18.
In that regard, the court observes that Marshal Dillard was “largely missing in action throughout the class period.” Op. at 16. Although Dillard agreed that there was no reason to treat male and female arrestees differently, see Dillard Dep. 77:1–7, on his watch his deputies indiscriminately strip searched only women. Op. at 3. Summary judgment presents no occasion for the court to weigh the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A reasonable jury could find that knowing acquiescence to continuing violations of a plaintiff’s Equal Protection rights by one’s deputies amounts to purposeful conduct and infer, in the absence of a legitimate noninvidious reason for treating women differently than men, a defendant’s discriminatory purpose. Cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67 (1977); cf. also Primas v. Dist. of Columbia, 719 F.3d 693, 697–98 (D.C. Cir. 2013); Evans v. Sebelius, 716 F.3d 617, 620–22 (D.C. Cir. 2013). Dillard repeatedly swore, however, that he believed men and women were being strip searched in the same manner, see Dillard Dep. 96:10–97:8, 99:8–101:12, and the Fifth Amendment class fails to proffer evidence from which a reasonable jury could find that he had a women-only strip search policy or knew of the disparate treatment by his deputies. Op. at 16–18. Absent evidence that Dillard either had

Case 1:02-cv-02364-RMC Document 278-1 Filed 08/13/14 Page 25 of 25
6 a blanket policy for strip searching only female arrestees, or knew that his deputies were doing so indiscriminately and did nothing to stop them, a discriminatory purpose by Dillard cannot reasonably be inferred.

 
 Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 1 of 45
CLOSED,JURY,MEDIATION,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:02−cv−02364−RMC

JOHNSON et al v. GOVERNMENT OF THE DISTRICT OF COLUMBIA et al Assigned to: Judge Rosemary M. Collyer Case in other court: USCA, 07−05037
USCA, 11−05115 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/02/2002 Date Terminated: 04/21/2011 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

DIANNA JOHNSON

represented by Louis Allan Kleiman 2055 15th Street Suite 333 Arlington, VA 22201 (703) 524−3333 Fax: (703) 525−2222 Email: virginialawyer@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham LAW OFFICES OF LYNN E. CUNNINGHAM 306 Westview Drive Dubois, WY 82513−1547 (307) 431−4158 Fax: (307) 455−3334 Email: lcunningham@law.gwu.edu TERMINATED: 09/12/2005 LEAD ATTORNEY

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

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 2 of 45

ATTORNEY TO BE NOTICED

Sean Robert Day LAW OFFICES OF SEAN ROBERT DAY 7500 Greenway Center Drive Suite 110 Greenbelt, MD 20770 (301) 220−2270 Fax: (301) 220−2441 Email: sean@dayincourt.net

Plaintiff RUBBIYA MUHAMMED

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address)

Plaintiff CAROLYN MONTGOMERY

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
TONYA CECELIA MACK TERMINATED: 10/20/2009

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 3 of 45

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address)

Plaintiff
LAURA LAMBERT TERMINATED: 10/20/2009

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address)

Plaintiff DIANNE WILKES

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address)

Plaintiff VICKIE BROOKS

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY

William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Robert Day (See above for address)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 4 of 45

Plaintiff KEISHA HOLLOWAY
Plaintiff DONNA CURTIS On behalf of all others similarly situated
Plaintiff SANDRA CLYBURN also known as SANDRA CLAYBORNE Plaintiff SHERYL RUTLEDGE Plaintiff ANITA JOHNSON HAIRSTON

represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY
William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Robert Day (See above for address)
represented by Louis Allan Kleiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynn E. Cunningham (See above for address) TERMINATED: 09/12/2005 LEAD ATTORNEY
William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Robert Day (See above for address)
represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Charles Cole Claiborne , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 5 of 45

GOVERNMENT OF THE DISTRICT OF COLUMBIA TERMINATED: 10/31/2008

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

Leah Brownlee Taylor OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA Public Interest Division 441 4th Street, NW Suite 600 South Washington, DC 20001 (202) 724 −7854 Fax: (202) 727−3625 Email: leah.taylor@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard H. Becker EXECUTIVE OFFICE OF THE MAYOR 1350 Pennsylvania Avenue, NW Suite 327 Washington, DC 20004 (202) 727−1597 Fax: (202) 727−6014 Email: len.becker@dc.gov TERMINATED: 12/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Hildum DISTRICT OF COLUMBIA OFFICE OF ATTORNEY GENERAL 441 Fourth Street, NW 6th Floor South Washington, DC 20008 (202) 724−6642 Email: robert.hildum@dc.gov LEAD ATTORNEY 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: 01/12/2010

Maria−Claudia T. Amato DC OFFICE OF THE ATTORNEY GENERAL 2000 14th Street, NW Suite 756 Washington, DC 20009 (202) 671−2037

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 6 of 45

Email: maria.amato@dc.gov TERMINATED: 08/01/2006 ATTORNEY TO BE NOTICED

Holly Michelle Johnson DISTRICT OF COLUMBIA ATTORNEY GENERAL 441 4th Street, NW Suite 6S−101 Washington, DC 20001−2714 (202) 442−9890 Fax: (202) 715−7713 Email: holly.johnson@dc.gov TERMINATED: 05/30/2003 ATTORNEY TO BE NOTICED

Defendant
UNITED STATES MARSHALS SERVICE TERMINATED: 02/08/2008

represented by Oliver W. McDaniel U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2508 Fax: (202) 252−2599 Email: oliver.mcdaniel@usdoj.gov TERMINATED: 12/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Sheri Goldfluss UNITED STATES ATTORNEY'S OFFICE Judiciary Center Building 555 Fourth Street, NW Civil Division Washington, DC 20530−2733 (202) 514−7198 Fax: (202) 514−8780 Email: Lisa.Goldfluss@usdoj.gov ATTORNEY TO BE NOTICED

Robin Michelle Meriweather U.S. ATTORNEY'S OFFICE National Security Section 555 Fourth Street, NW 11−909 Washington, DC 20814 (202) 252−2538 Fax: (202) 252−2599 Email: robin.meriweather2@usdoj.gov

William Mark Nebeker U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2536 Fax: (202) 514−8780 Email: mark.nebeker@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
TODD DILLARD Individually United States Marshal, D.C.

represented by Oliver W. McDaniel (See above for address)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 7 of 45

Superior Court

TERMINATED: 12/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer M. Olkiewicz U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, N.W. Washington, DC 20530 (202) 514−7185 Fax: (202) 514−8780 Email: Jennifer.Olkiewicz@usdoj.gov ATTORNEY TO BE NOTICED

Lisa Sheri Goldfluss (See above for address) ATTORNEY TO BE NOTICED

Robin Michelle Meriweather (See above for address) ATTORNEY TO BE NOTICED

William Mark Nebeker (See above for address) ATTORNEY TO BE NOTICED

Defendant
JOHN DOE Number 1−20, Deputy Marshals, D.C. Superior Court TERMINATED: 05/24/2007

Cross Claimant
GOVERNMENT OF THE DISTRICT OF COLUMBIA TERMINATED: 10/31/2008

represented by Denise J. Baker (See above for address) TERMINATED: 01/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen A. Efros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah Brownlee Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard H. Becker (See above for address) TERMINATED: 12/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Hildum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria−Claudia T. Amato (See above for address) TERMINATED: 08/01/2006 ATTORNEY TO BE NOTICED

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 8 of 45

Holly Michelle Johnson (See above for address) TERMINATED: 05/30/2003 ATTORNEY TO BE NOTICED

V.
Cross Defendant
TODD DILLARD Individually United States Marshal, D.C. Superior Court

represented by Oliver W. McDaniel (See above for address) TERMINATED: 12/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Sheri Goldfluss (See above for address) ATTORNEY TO BE NOTICED
Robin Michelle Meriweather (See above for address) ATTORNEY TO BE NOTICED
William Mark Nebeker (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/02/2002
12/02/2002
12/02/2002 12/18/2002 12/23/2002 12/26/2002
01/09/2003 01/15/2003 01/29/2003

# Docket Text
1 COMPLAINT against TODD DILLARD , JOHN DOE , GOVERNMENT OF THE DISTRICT OF COLUMBIA , UNITED STATES MARSHALS SERVICE (Filing fee $ 150.) , filed by VICKIE BROOKS , DONNA CURTIS , KEISHA HOLLOWAY , DIANNA JOHNSON , LAURA LAMBERT , TONYA CECELIA MACK , CAROLYN MONTGOMERY , RUBBIYA MUHAMMED , DIANNE WILKES .(rje, ) Modified on 12/3/2002 (rje, ). (Entered: 12/03/2002)
2 NOTICE OF RELATED CASE by VICKIE BROOKS , DONNA CURTIS , KEISHA HOLLOWAY , DIANNA JOHNSON , LAURA LAMBERT , TONYA CECELIA MACK , CAROLYN MONTGOMERY , RUBBIYA MUHAMMED , DIANNE WILKES . Case related to Case No. 01−385. (rje, ) (Entered: 12/03/2002)
SUMMONS (5) Issued as to TODD DILLARD ; GOVERNMENT OF THE DISTRICT OF COLUMBIA ; UNITED STATES MARSHALS SERVICE , U.S. Attorney and U.S. Attorney General (rje, ) (Entered: 12/03/2002)
SUMMONS (1) REISSUED as to TODD DILLARD (mpt, ) (Entered: 12/18/2002)
3 MOTION for Extension of Time to File Answer re 1 Complaint, by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 # 2)(Becker, Leonard) (Entered: 12/23/2002)
MINUTE ENTRY: Upon consideration of the Consent Motion of Defendant Government of the District of Columbia to Enlarge Time to Answer the Complaint, it is hereby ORDERED that the motion is GRANTED. District of Columbia's time to respond to the complaint is extended until January 31, 2003. Signed by Judge John D. Bates on 12/26/02. (lcjdb2) (Entered: 12/26/2002)
4 ATTORNEY APPEARANCE. (McDaniel, Oliver) (Entered: 01/09/2003)
Set Deadlines/Hearings: Answer due by 1/31/2003. (tb) (Entered: 01/15/2003)
5 MOTION to Dismiss Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 01/29/2003)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 9 of 45

01/30/2003 01/31/2003 02/03/2003 02/03/2003 02/10/2003 02/13/2003 02/14/2003 02/14/2003
02/14/2003 02/24/2003 03/03/2003 03/12/2003
03/14/2003 03/24/2003 03/27/2003 03/27/2003 04/03/2003 04/03/2003 04/09/2003 04/10/2003

6 MOTION for Leave to Appear pro haec vice by Barrett Litt by DIANNA JOHNSON. (Claiborne, William) (Entered: 01/30/2003)
7 MOTION for Leave to Appear pro haec vice by Paul Estuar by DIANNA JOHNSON. (Claiborne, William) (Entered: 01/31/2003)
8 ENTERED IN ERROR..... ATTORNEY APPEARANCE. (Claiborne, William) Modified on 2/4/2003 (mpt, ). (Entered: 02/03/2003)
9 ENTERED IN ERROR..... ATTORNEY APPEARANCE. (Claiborne, William) Modified on 2/4/2003 (mpt, ). (Entered: 02/03/2003)
10 Memorandum in opposition to motion re 5 District's Motion to Dismiss filed by DIANNA JOHNSON. (Attachments: # 1)(Claiborne, William) (Entered: 02/10/2003)
11 MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismiss Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 02/13/2003)
ORDER granting 6 Motion for Leave to Appear, granting 7 Motion for Leave to Appear, granting 11 Motion for Extension of Time to File Response/Reply. Signed by Judge John D. Bates on 2/14/03. (dvb) (Entered: 02/14/2003)
12 First MOTION for Extension of Time to File Answer re 1 Complaint, and Memorandum in Support Thereof by TODD DILLARD, JOHN DOE, UNITED STATES MARSHALS SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 02/14/2003)
Case Reassigned to Judge Rosemary M. Collyer. Judge John D. Bates no longer assigned to the case. (rje, ) (Entered: 03/05/2003)
13 REPLY in support of motion re 5 to dismiss filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 02/24/2003)
14 MOTION to Certify Class by DIANNA JOHNSON. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Claiborne, William) (Entered: 03/03/2003)
15 Second MOTION for Extension of Time to Extend Time Within Which to Respond to Plaintiffs' Complaint, and Within Which to Respond to Plaintiffs' Motion for Class Certification, and Memorandum in Support Thereof by TODD DILLARD, JOHN DOE, UNITED STATES MARSHALS SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/12/2003)
16 MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Certify Class by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 03/14/2003)
17 Memorandum in opposition to motion re 15 filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 03/24/2003)
18 Memorandum in opposition to motion re 16 filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 03/27/2003)
19 MOTION for Preliminary Injunction by DIANNA JOHNSON. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(Claiborne, William) (Entered: 03/28/2003)
20 Memorandum in opposition to motion re 19 filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Affidavit Decl. of Anne B. Wicks)(Becker, Leonard) (Entered: 04/03/2003)
21 REPLY in support of motion re 16 motn to enlarge time to respond to class certification motion filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 04/03/2003)
MINUTE ENTRY ORDER: status conference is scheduled for 4/11/03 at 4 p.m. Signed by Judge Rosemary M. Collyer on 4/9/03. (dsj) (Entered: 04/09/2003)
22 MOTION to Strike 20 Memorandum in Opposition affidavit Anne Wicks by DIANNA JOHNSON. (Claiborne, William) (Entered: 04/10/2003)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 10 of 45

04/11/2003 04/17/2003 04/25/2003
04/28/2003 04/28/2003 05/27/2003 05/28/2003
05/29/2003 05/29/2003 05/30/2003 05/30/2003 05/30/2003 05/30/2003 05/30/2003 06/05/2003 06/06/2003

Minute Entry for Status Conference held on 4/11/2003 before Judge Rosemary M. Collyer: Further Status Conference set for April 28, 2003 at 10:00 AM.(Court Reporter Crystal Pilgrim) (cdw) (Entered: 04/14/2003)
23 Memorandum in opposition to motion re 22 to strike Wicks declaration filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Becker, Leonard) (Entered: 04/17/2003)
24 Consent MOTION Hold Motions In Abeyance Pending Settlement Discussions re 15 Second MOTION for Extension of Time to Extend Time Within Which to Respond to Plaintiffs' Complaint, and Within Which to Respond to Plaintiffs' Motion for Class Certification, and Memorandum in Support Thereof, 16 MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Certify Class, 1 Complaint,, 5 MOTION to Dismiss Complaint, 19 MOTION for Preliminary Injunction, 20 Memorandum in Opposition, 21 Reply in Support, 10 Memorandum in Opposition, 13 Reply in Support, 14 MOTION to Certify Class by VICKIE BROOKS, DONNA CURTIS, TODD DILLARD, JOHN DOE, GOVERNMENT OF THE DISTRICT OF COLUMBIA, KEISHA HOLLOWAY, DIANNA JOHNSON, LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, UNITED STATES MARSHALS SERVICE, DIANNE WILKES. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 04/25/2003)
Status Conference held before Judge Rosemary M. Collyer on 4/28/2003. (Court Reporter Crystal Pilgrim.) (cdw) (Entered: 04/28/2003)
MINUTE ENTRY ORDER granting 24 Motion to Hold Motions in Abeyance Pending Settlement Discussions. Status hearing is scheduled for 5/30/03 at 10:30 a.m. Signed by Judge Rosemary M. Collyer on 4/28/03. (dsj) (Entered: 04/28/2003)
25 NOTICE by TODD DILLARD, JOHN DOE, UNITED STATES MARSHALS SERVICE of Filing (Attachments: # 1 Stipulated Protective Order# 2 Confidentiality Agreement)(McDaniel, Oliver) (Entered: 05/27/2003)
MINUTE ENTRY ORDER re 25 Notice (Other) filed by JOHN DOE, UNITED STATES MARSHALS SERVICE, TODD DILLARD. Stipulated Protective Order and Confidentiality Agreement are hereby approved by the Court. Signed by Judge Rosemary M. Collyer on 5/28/03. (dsj) (Entered: 05/28/2003)
26 NOTICE of Appearance by Holly Michelle Johnson on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Johnson, Holly) (Entered: 05/29/2003)
27 ENTERED IN ERROR.....STATUS REPORT by DIANNA JOHNSON. (Attachments: # 1)(Claiborne, William) Modified on 5/30/2003 (rje, ). (Entered: 05/29/2003)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 27 was entered in error and counsel was instructed to refile said pleading." (rje, ) (Entered: 05/30/2003)
28 STATUS REPORT by DIANNA JOHNSON. (Attachments: # 1)(Claiborne, William) (Entered: 05/30/2003)
29 NOTICE by GOVERNMENT OF THE DISTRICT OF COLUMBIA Withdrawing Appearance of Holly Johnson (Johnson, Holly) (Entered: 05/30/2003)
Status Conference held before Judge Rosemary M. Collyer on 5/30/2003. (Court Reporter Crystal Pilgrim) (cdw) (Entered: 05/30/2003)
30 NOTICE of Hearing: Status Conference set for 6/10/2003 at 08:45 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 06/02/2003)
31 MOTION to Continue by DIANNA JOHNSON. (Attachments: # 1)(Claiborne, William) (Entered: 06/05/2003)
MINUTE ENTRY ORDER granting 31 Motion to Continue. Status hearing is reset for 6/19/03 at 8:45 a.m. Deadline for making recommendations on discovery and scheduling is 6/13/03. Signed by Judge Rosemary M. Collyer on 6/6/03. (dsj) (Entered: 06/06/2003)

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06/17/2003
06/18/2003 07/03/2003 07/10/2003 09/08/2003 09/10/2003
09/11/2003
11/14/2003 11/19/2003 12/01/2003 12/02/2003 12/04/2003 12/04/2003 12/04/2003

32 Joint MOTION for Extension of Time to Submit a Proposed Scheduling Order, Time for Filing Having Expired, and to Continue the Status Hearing by VICKIE BROOKS, DONNA CURTIS, TODD DILLARD, JOHN DOE, GOVERNMENT OF THE DISTRICT OF COLUMBIA, KEISHA HOLLOWAY, DIANNA JOHNSON, LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, UNITED STATES MARSHALS SERVICE, DIANNE WILKES. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 06/17/2003)
MINUTE ENTRY ORDER granting 32 Motion for Extension of Time. Proposed scheduling order is due 7/13/03 and status hearing reset for 7/21/03 at 9:00 a.m. Signed by Judge Rosemary M. Collyer on 6/18/03. (dsj) (Entered: 06/18/2003)
33 ORDER REFERRING CASE to Mediation. Signed by Judge Rosemary M. Collyer on 7/3/03. (dsj) (Entered: 07/03/2003)
MINUTE ENTRY ORDER: Given the Court's order referring this case to mediation 33 , the status hearing scheduled for 7/21/03 is canceled. Signed by Judge Rosemary M. Collyer on 7/10/03.(dsj) (Entered: 07/10/2003)
MINUTE ENTRY ORDER: Pursuant to the Court's Order dated July 3, 2003, the parties are directed to submit a joint report on the status of mediation no later than 9/11/03 at 5:00 p.m. Signed by Judge Rosemary M. Collyer on 9/8/03. (dsj) (Entered: 09/08/2003)
34 STATUS REPORT on Mediation (Joint) by VICKIE BROOKS, DONNA CURTIS, TODD DILLARD, JOHN DOE, GOVERNMENT OF THE DISTRICT OF COLUMBIA, KEISHA HOLLOWAY, DIANNA JOHNSON, LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, UNITED STATES MARSHALS SERVICE, DIANNE WILKES. (McDaniel, Oliver) (Entered: 09/10/2003)
MINUTE ENTRY ORDER: The parties have been in settlement discussions since 4/28/03 and this case was referred to mediation on 7/3/03. Given the status of this case, it is hereby ordered that all pending motions are denied without prejudice. In the event that mediation fails, the parties may refile these motions (and responsive briefs) with the Court. In the meantime, the Court orders that mediation is continued for 60 days and the parties shall file a second report on the status of mediation no later than 11/11/03. Signed by Judge Rosemary M. Collyer on 9/11/03. (dsj) (Entered: 09/11/2003)
35 MOTION for Extension of Time to File Second Mediation Status Report by DIANNA JOHNSON. (Attachments: # 1)(Claiborne, William) (Entered: 11/14/2003)
MINUTE ENTRY ORDER granting 35 Motion for Extension of Time to File Report. The parties shall file their second report on the status of mediation no later than 12/1/03. Signed by Judge Rosemary M. Collyer on 11/19/03. (dsj) (Entered: 11/19/2003)
36 Second MOTION for Extension of Time to file second status report by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 12/01/2003)
MINUTE ENTRY ORDER granting 36 Motion for Extension of Time. The parties shall file their second report on the status of mediation no later than 12/4/03. Signed by Judge Rosemary M. Collyer on 12/2/03. (dsj) (Entered: 12/02/2003)
37 Consent MOTION for Protective Order by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 12/04/2003)
MINUTE ENTRY ORDER granting 37 Motion for Protective Order. The Stipulated Protective Order is hereby approved and entered. Signed by Judge Rosemary M. Collyer on 12/4/03. (dsj) (Entered: 12/04/2003)
38 STATUS REPORT on Mediation by DIANNA JOHNSON. (Claiborne, William) (Entered: 12/04/2003)

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12/23/2003 02/20/2004
03/03/2004 04/19/2004 04/19/2004 06/28/2004
06/28/2004 07/12/2004
07/30/2004 08/02/2004 08/03/2004 08/10/2004 08/23/2004 08/25/2004 09/15/2004

MINUTE ENTRY ORDER extending mediation for 60 days and directing the parties to file a status report on 2/20/04. Signed by Judge Rosemary M. Collyer on 12/23/03. (dsj) (Entered: 12/23/2003)
39 STATUS REPORT (Joint) by VICKIE BROOKS, DONNA CURTIS, TODD DILLARD, JOHN DOE, GOVERNMENT OF THE DISTRICT OF COLUMBIA, KEISHA HOLLOWAY, DIANNA JOHNSON, LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, UNITED STATES MARSHALS SERVICE, DIANNE WILKES. (McDaniel, Oliver) (Entered: 02/20/2004)
MINUTE ENTRY ORDER: Upon consideration of the parties' status report, mediation is continued for 45 days. A status hearing is set for 4/19/04 at 9:15 a.m. Signed by Judge Rosemary M. Collyer on 3/3/04. (dsj) (Entered: 03/03/2004)
MINUTE ENTRY ORDER extending referral to mediation to 6/30/04. A status hearing is scheduled for 6/28/04 at 10:30 a.m. Signed by Judge Rosemary M. Collyer on 4/19/04. (dsj) (Entered: 04/19/2004)
Status Conference held before Judge Rosemary M. Collyer on 4/19/2004. A further Status Conference is set for 6/28/2004 at 10:30 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Elaine Merchant) (cdw) (Entered: 04/19/2004)
Status Conference held before Judge Rosemary M. Collyer on 6/28/2004. A telephone conference is set for 7/12/2004 at 2:30 PM in Courtroom 6 before Judge Rosemary M. Collyer. A status conference is set for 7/30/2004 at 9:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 06/29/2004)
40 ORDER signed by Judge Rosemary M. Collyer on June 28, 2004. (cdw) (Entered: 06/29/2004)
Telephone Conference held before Judge Rosemary M. Collyer on 7/12/2004. Oral motion by the plaintiff to vacate the status conference set for 7/30/04 and for a futher telephone conference, heard and granted. A telephone conference is set for 8/3/2004 at 4:45 PM before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 07/13/2004)
42 MOTION for Extension of Time to prepare a position memorandum to 8/2/04; and to prepare the "two−months" database to 8/23/04 by TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(ks, ) (Entered: 08/05/2004)
41 MOTION for Extension of Time to (One−Day) to Prepare Position Memorandum, and Memorandum in Support Thereof by TODD DILLARD, UNITED STATES MARSHALS SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/02/2004)
MINUTE ENTRY ORDER granting 41 Motion for Extension of Time to Prepare Position Memorandum. Signed by Judge Rosemary M. Collyer on 8/3/04. (dsj) (Entered: 08/03/2004)
Status Conference held before Judge Rosemary M. Collyer on 8/10/2004. A further Status Conference is set for 9/15/2004 at 9:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 08/10/2004)
43 MOTION for Extension of Time to Prepare the "Two−Months" Database, and Memorandum in Support Thereof by TODD DILLARD, UNITED STATES MARSHALS SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/23/2004)
MINUTE ORDER granting 43 Unopposed Motion for Extension of Time. The position memorandum shall be prepared by 9/3/04.Signed by Judge Rosemary M. Collyer on 8/25/04. (ato) (Entered: 08/25/2004)
Status Conference held before Judge Rosemary M. Collyer on 9/15/2004. A further Status Conference is set for 11/15/2004 at 11:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 09/15/2004)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 13 of 45

09/15/2004 10/15/2004 11/10/2004 12/06/2004
12/13/2004 01/04/2005
01/04/2005 01/04/2005 01/24/2005 01/28/2005 02/02/2005 02/16/2005
02/17/2005 02/25/2005 03/10/2005
03/21/2005 04/07/2005 05/09/2005

NOTICE: The correct date and time for the next status conference in this case is 10/15/2004 at 11:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (cdw) (Entered: 09/15/2004)
Status Conference held before Judge Rosemary M. Collyer on 10/15/2004. A further Status Conference is set for 11/17/2004 at 10:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 10/15/2004)
NOTICE of Hearing: Status Conference reset for 12/6/2004 at 11:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. Please be punctual.(cdw) (Entered: 11/10/2004)
Status Conference held before Judge Rosemary M. Collyer on 12/6/2004. A Telephone Conference is set for 1/4/2005 at 11:00 AM before Judge Rosemary M. Collyer. A further Status Conference is set for 1/28/2005 at 11:30 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/06/2004)
44 NOTICE of Appearance by Maria−Claudia T. Amato on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Amato, Maria−Claudia) (Entered: 12/13/2004)
MINUTE ENTRY ORDER. The next telephone conference will be held on January 28, 2005 at 11:30 a.m. Another telephone conference is scheduled for February 25, 2005 at 2:15 p.m. Signed by Judge Rosemary M. Collyer on 1/4/05. (dyc) (Entered: 01/04/2005)
Telephone Conference held before Judge Rosemary M. Collyer on 1/4/2005. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 01/04/2005)
Set/Reset Hearings: Telephone Conference set for 1/18/2005 at 11:30 AM before Judge Rosemary M. Collyer. Telephone Conference set for 2/25/2005 at 2:15 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 01/07/2005)
MINUTE ENTRY ORDER denying as moot 42 Motion for Extension of Time to Prepare a Position Memorandum. Signed by Judge Rosemary M. Collyer on 1/24/05. (dyc) (Entered: 01/24/2005)
Telephone Conference held before Judge Rosemary M. Collyer on 1/28/2005. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 01/31/2005)
NOTICE of Hearing: Status Conference set for 2/16/2004 at 9:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. Please be punctual.(cdw) (Entered: 02/02/2005)
Status Conference held before Judge Rosemary M. Collyer on 2/16/2005. Defendant directed to submit a full proposal to the plaintiff via email by midnight on 2/17/05. A further Status Conference is set for 2/23/2005 at 3:15 PM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 02/17/2005)
45 NOTICE of Delivery of Draft Stipulation of Settlement and Dismissal by UNITED STATES MARSHALS SERVICE, TODD DILLARD re Status Conference,, Set Deadlines/Hearings, (McDaniel, Oliver) (Entered: 02/17/2005)
Telephone Conference held before Judge Rosemary M. Collyer on 2/25/2005. A further telephone conference is set for 3/14/2005 at 11:15 AM before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 02/25/2005)
Set/Reset Hearings: The Telephone Conference currently set for 3/14/05 has been rescheduled for 3/21/2005 at 10:30 AM before Judge Rosemary M. Collyer. The parties should first initiate a conference call amongst themselves and then call in the Court. (cdw) (Entered: 03/10/2005)
Telephone Conference held before Judge Rosemary M. Collyer on 3/21/2005. (cdw) (Entered: 03/21/2005)
46 NOTICE of Change of Address by William Charles Claiborne, III (Claiborne, William) (Entered: 04/07/2005)
47 MOTION for Hearing Status Hearing by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 05/09/2005)

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05/16/2005 05/17/2005 05/18/2005 05/23/2005
06/28/2005 07/11/2005
07/11/2005 08/19/2005 08/29/2005 08/29/2005 09/06/2005 09/12/2005 09/30/2005 11/01/2005 11/01/2005 11/02/2005 11/02/2005 02/02/2006 02/16/2006

MINUTE ENTRY ORDER granting 47 Motion for Hearing nunc pro tunc. Signed by Judge Rosemary M. Collyer on 5/16/05. (dyc) (Entered: 05/16/2005)
48 NOTICE of Appearance by Maria−Claudia T. Amato on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Amato, Maria−Claudia) (Entered: 05/17/2005)
NOTICE of Hearing: Status Conference set for 5/23/2005 at 2:15 PM in Courtroom 6 before Judge Rosemary M. Collyer. Please be punctual.(cdw) (Entered: 05/18/2005)
Status Conference held before Judge Rosemary M. Collyer on 5/23/2005. A further Status Conference is set for 7/29/2005 at 11:00 AM in Courtroom 6 before Judge Rosemary M. Collyer. The defendant is directed to file a notice with the Court advising when the documents have been sent out. (Court Reporter: Scott Wallace) (cdw) (Entered: 06/02/2005)
49 MOTION for Extension of Time to Complete the Settlement Approval Process by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 06/28/2005)
MINUTE ENTRY ORDER granting 49 Defendants' Motion for Extension of Time to Complete the Settlement Approval Process as unopposed. The settlement documents must be submitted to the Department of Justice by no later than August 1, 2005. A joint status report shall be filed with the Court by no later than August 2, 2005. Signed by Judge Rosemary M. Collyer on 7/11/05. (dyc) (Entered: 07/11/2005)
Set Deadlines/Hearings: Joint status report due by 8/2/2005. (cdw) (Entered: 07/12/2005)
NOTICE of Hearing: Status Conference set for 8/29/2005 at 10:30 AM in Courtroom 6 before Judge Rosemary M. Collyer. Please be punctual.(cdw) (Entered: 08/21/2005)
50 NOTICE of Filing Draft Settlement Documents Under Seal by UNITED STATES MARSHALS SERVICE, TODD DILLARD (McDaniel, Oliver) (Entered: 08/29/2005)
Status Conference held before Judge Rosemary M. Collyer on 8/29/2005. Further hearing set for 9/30/2005 at 2:30 PM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 08/30/2005)
51 MOTION to Withdraw as Attorney by DIANNA JOHNSON. (Attachments: # 1 # 2)(Cunningham, Lynn) (Entered: 09/06/2005)
MINUTE ENTRY ORDER granting 51 Motion to Withdraw as Attorney. Attorney Lynn E. Cunningham terminated. Signed by Rosemary M. Collyer on 9/12/05. (dyc) (Entered: 09/12/2005)
Status Conference held before Judge Rosemary M. Collyer on 9/30/2005. A further Status Conference is set for 11/1/2005 at 9:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 09/30/2005)
Set/Reset Hearings: Status Conference reset for 11/2/2005 at 10:15 AM in Courtroom 6 before Judge Rosemary M. Collyer. (cdw) (Entered: 11/01/2005)
52 MOTION for Mediation referral by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 11/01/2005)
53 ORDER REFERRING CASE to Mediation. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 11/2/05. (dyc) (Entered: 11/02/2005)
Status Conference held before Judge Rosemary M. Collyer on 11/2/2005. A further status conference is set for 2/24/2006 at 02:00 PM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 11/03/2005)
54 STATUS REPORT by DIANNA JOHNSON. (Claiborne, William) (Entered: 02/02/2006)
MINUTE ENTRY ORDER. For the reasons stated at the telephone conference on February 16, 2006, a status conference will be held in this matter on April 7, 2006 at 11:00 a.m. The United States must be represented by one or more representatives from the Department of Justice with authority to settle the case. Signed by Judge Rosemary M. Collyer on 2/16/06. (dyc) (Entered: 02/16/2006)

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02/16/2006 04/07/2006 04/07/2006 04/21/2006 04/21/2006 04/28/2006 04/28/2006
05/02/2006 05/05/2006
05/05/2006
05/26/2006 05/31/2006 05/31/2006 06/05/2006

Telephone Conference held before Judge Rosemary M. Collyer on 2/16/2006. A further Status Conference is set for 4/7/2006 at 11:00 AM in Courtroom 6 before Judge Rosemary M. Collyer. (cdw) (Entered: 02/17/2006)
55 ORDER to Department of Justice. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 4/7/2006. (tkf) (Entered: 04/07/2006)
Status Conference held before Judge Rosemary M. Collyer on 4/7/2006. Plaintiff's Motion for Leave to File an amended complaint, heard and granted. The amended complaint is due within three weeks. The answer shall be filed 30 days thereafter. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 04/07/2006)
56 NOTICE OF FILING LETTER FROM U.S. ATTORNEY by UNITED STATES MARSHALS SERVICE, TODD DILLARD (Attachments: # 1 4.21.06 Letter from U.S. Attorney)(McDaniel, Oliver) (Entered: 04/21/2006)
57 STATUS REPORT OF THE ASSISTANT ATTORNEY GENERAL by UNITED STATES MARSHALS SERVICE. (Attachments: # 1 Exhibit United States Attorney's Letter# 2 Certificate of Service)(Van Horn, Daniel) (Entered: 04/21/2006)
NOTICE of Hearing: A Status Conference is set for 5/5/2006 at 10:30 AM in Courtroom 6, second floor, before Judge Rosemary M. Collyer. Please be punctual.(cdw) (Entered: 04/28/2006)
58 FIRST AMENDED COMPLAINT against GOVERNMENT OF THE DISTRICT OF COLUMBIA, UNITED STATES MARSHALS SERVICE, TODD DILLARD, JOHN DOE filed by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, DIANNA JOHNSON, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY. (Attachments: # 1 Redlined Version)(nmw, ) (Entered: 05/01/2006)
59 NOTICE of Appearance by Lisa Sheri Goldfluss on behalf of UNITED STATES MARSHALS SERVICE, TODD DILLARD (Goldfluss, Lisa) (Entered: 05/02/2006)
MINUTE ENTRY ORDER: As stated in open court, the Defendants' Motions to Dismiss must be filed no later than May 31, 2006. Plaintiffs' Opposition to Defendants' Motions to Dismiss must be filed no later than June 19, 2006. Defendants' Replies to Plaintiffs' Opposition must be filed no later than July 11, 2006. A status conference will be held on August 25, 2006, at 9:30am. No extensions of time will be granted. Signed by Judge Rosemary M. Collyer on 5/5/2006. (lcrmc2, ) (Entered: 05/05/2006)
Status Conference held before Judge Rosemary M. Collyer on 5/5/2006 setting forth new deadlines in this matter. Within 3 weeks, the parties should advise the Court of the status of the complaint in re the U. S. Marshals Service. Dispositive Motions due by 5/31/2006. Response to Dispositive Motions due by 6/19/2006. Reply to Dispositive Motions due by 7/11/2006. A further Status Conference is set for 8/25/2006 at 9:30 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 05/05/2006)
60 NOTICE regarding claims against Marshals by DIANNA JOHNSON (Claiborne, William) (Entered: 05/26/2006)
61 Consent MOTION for Extension of Time to File Dispositive Motion by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Amato, Maria−Claudia) (Entered: 05/31/2006)
62 MOTION to Dismiss by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order # 2 Attachment (1999 Policy Directive))(McDaniel, Oliver) (Entered: 05/31/2006)
MINUTE ENTRY ORDER granting 61 Defendant District of Columbia's Motion for Extension of Time to File a Dispositive Motion. The District of Columbia's dispositive motion shall be filed no later than June 21, 2006. Plaintiffs' response to both the District of Columbia's dispositive motion and the U.S. Marshall Service and Mr. Dillard's dispositive motion shall be filed no later than July 10, 2006. The District of Columbia's reply and the U.S. Marshall Service and Mr. Dillard's reply shall be filed no later than July 31, 2006. No further extensions of time will be granted. Signed by Judge Rosemary M. Collyer on 06/05/2006. (tkf) (Entered: 06/05/2006)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 16 of 45

06/05/2006 06/21/2006 07/05/2006 07/05/2006
07/11/2006 07/11/2006 07/11/2006
07/13/2006
07/14/2006 07/17/2006
07/21/2006 07/24/2006
08/01/2006 08/01/2006 08/07/2006
08/10/2006

Set Deadlines/Hearings: Dispositive Motions due by 6/21/2006. Response to Dispositive Motions due by 7/10/2006. Reply to Dispositive Motions due by 7/31/2006. (cdw) (Entered: 06/07/2006)
63 MOTION to Dismiss Plaintiffs' Amended Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Amato, Maria−Claudia) (Entered: 06/21/2006)
64 MOTION for Extension of Time to file opposition to motions to dismiss by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/05/2006)
MINUTE ENTRY ORDER granting 64 Motion for Extension of Time to File Responses. Plaintiffs' responses shall be filed no later than July 17, 2006. Defendants' replies shall be filed no later than August 7, 2006. Signed by Judge Rosemary M. Collyer on 07/05/2006. (tkf) (Entered: 07/05/2006)
65 Consent MOTION for Extension of Time to File Response/Reply by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(Goldfluss, Lisa) (Entered: 07/11/2006)
66 RESPONSE to Federal defendants' motion for extension of time to file reply filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 07/11/2006)
MINUTE ENTRY ORDER granting 65 Motion for Extension of Time to File Response/Reply. Federal Defendants' reply shall be filed by no later than August 11, 2006. Signed by Judge Rosemary M. Collyer on 7/11/2006. (tkf) (Entered: 07/11/2006)
67 MOTION file single combined opposition to defendants motions re 62 MOTION to Dismiss, 63 MOTION to Dismiss Plaintiffs' Amended Complaint by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/13/2006)
MINUTE ENTRY ORDER granting 67 Plaintiffs' Motion to File a Single Opposition to 62 and 63 , Defendants' Motions to Dismiss. Signed by Judge Rosemary M. Collyer on 7/13/2006. (tkf) (Entered: 07/14/2006)
68 Memorandum in opposition to re 67 MOTION file single combined opposition to defendants motions re 62 MOTION to Dismiss, 63 MOTION to Dismiss Plaintiffs' Amended Complaint, 62 MOTION to Dismiss, 63 MOTION to Dismiss Plaintiffs' Amended Complaint filed by DIANNA JOHNSON. (Attachments: # 1 Exhibit Morgan Order# 2 Text of Proposed Order)(Claiborne, William) (Entered: 07/17/2006)
69 Consent MOTION for Extension of Time to File Reply by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Amato, Maria−Claudia) (Entered: 07/21/2006)
MINUTE ENTRY ORDER granting 69 Defendant's Motion for Extension of Time to File Reply. Defendant District of Columbia's reply shall be filed by no later than August 11, 2006. Signed by Judge Rosemary M. Collyer on 7/24/2006. (tkf) (Entered: 07/24/2006)
70 NOTICE OF WITHDRAWAL OF APPEARANCE as to GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Amato, Maria−Claudia) (Entered: 08/01/2006)
71 NOTICE of Appearance by Denise J. Baker on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Baker, Denise) (Entered: 08/01/2006)
72 MOTION to Continue Status Conference, MOTION for Extension of Time to File Response/Reply as to 62 MOTION to Dismiss by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/07/2006)
73 Memorandum in opposition to re 72 MOTION to Continue Status Conference MOTION for Extension of Time to File Response/Reply as to 62 MOTION to Dismiss filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 08/10/2006)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 17 of 45

08/11/2006
08/11/2006 08/25/2006 08/30/2006 08/30/2006 08/30/2006 09/20/2006 09/25/2006 09/26/2006 10/18/2006 10/19/2006 10/31/2006 11/03/2006 11/14/2006 11/14/2006 11/15/2006

MINUTE ENTRY ORDER denying 72 Motion to Continue Status Conference and granting 72 Motion for Extension of Time to File Response/Reply. The status conference shall take place, as scheduled, on August 25, 2006, at 9:30am. Defendants' Reply shall be filed by no later than August 30, 2006. Signed by Judge Rosemary M. Collyer on 8/11/2006. (tkf) (Entered: 08/11/2006)
74 REPLY to opposition to motion re 67 MOTION file single combined opposition to defendants motions re 62 MOTION to Dismiss, 63 MOTION to Dismiss Plaintiffs' Amended Complaint filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 08/11/2006)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 8/25/2006. A further Status Conference is set for 11/3/2006 at 10:30 AM in Courtroom 6 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 08/25/2006)
75 MOTION for Leave to File Excess Pages as to Federal Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/30/2006)
MINUTE ENTRY ORDER granting 75 Motion for Leave to File Excess Pages. Signed by Judge Rosemary M. Collyer on 8/30/2006. (tkf) (Entered: 08/30/2006)
76 REPLY to opposition to motion re 62 MOTION to Dismiss by the Federal Defendants filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Goldfluss, Lisa) (Entered: 08/30/2006)
77 NOTICE of new case authority by DIANNA JOHNSON (Claiborne, William) (Entered: 09/20/2006)
78 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Supplement Bostic v. DC slip opinion)(Baker, Denise) (Entered: 09/25/2006)
NOTICE of Hearing: A Motion Hearing in re the pending Motion to Dismiss is set for 10/27/2006 at 11:15 AM in courtroom 6, 2nd floor, main building, before Judge Rosemary M. Collyer. Please be prompt.(cdw) (Entered: 09/26/2006)
79 MOTION to Continue Oral Argument on Dispositive Motions and Motion to Expedite Consideration Thereof by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(Goldfluss, Lisa) (Entered: 10/18/2006)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 10/19/2006. The Motion Hearing is reset for 10/31/2006 at 2:30 PM in Courtroom 6 before Judge Rosemary M. Collyer. (cdw) (Entered: 10/20/2006)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 10/31/2006 re 5 , 62 , 63 Motions to Dismiss. Motions To Dimiss, heard and taken under advisement. (Court Reporter: FTR Gold) (cdw) (Entered: 11/03/2006)
80 NOTICE intent to file motion to amend complaint by DIANNA JOHNSON (Claiborne, William) (Entered: 11/03/2006)
81 MEMORANDUM OPINION & ORDER denying 62 the Federal Defendants' Motion to Dismiss, and denying 63 Defendant the District of Columbia's Motion to Dismiss. See attached Memorandum Opinion & Order for additional details. Signed by Judge Rosemary M. Collyer on 11/14/2006. (ses) (Entered: 11/14/2006)
ORDER finding as moot 79 Defendants' Motion to Continue Hearing Date. The hearing on Defendants' motions to dismiss was held on October 31, 2006. Signed by Judge Rosemary M. Collyer on 11/14/2006. (ses) (Entered: 11/14/2006)
82 NOTICE Amended, to file Second Amended Complaint by DIANNA JOHNSON re 80 Notice (Other) (Estuar, Paul) (Entered: 11/15/2006)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 18 of 45

11/22/2006 12/05/2006 12/13/2006 12/14/2006 12/15/2006 12/19/2006 12/20/2006 01/12/2007 01/16/2007 01/18/2007 01/19/2007
01/23/2007 02/02/2007 02/05/2007 02/05/2007 02/12/2007

83 TRANSCRIPT of Proceedings held on October 31, 2006 Motions Hearing before Judge Rosemary M. Collyer. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (ztg, ) (Entered: 11/24/2006)
84 MOTION for Leave to File second amended complaint by DIANNA JOHNSON. (Attachments: # 1 Exhibit proposed second amended complaint# 2 Exhibit Marshals Service search policy)(Claiborne, William) (Entered: 12/05/2006)
85 Consent MOTION for Extension of Time to File Response/Reply as to 84 MOTION for Leave to File second amended complaint by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/13/2006)
MINUTE ENTRY ORDER granting 85 Defendants' Motion for Extension of Time. The Federal Defendants shall file their opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint no later than January 19, 2007. Signed by Judge Rosemary M. Collyer on 12/14/2006. (ses) (Entered: 12/14/2006)
86 NOTICE NOTICE OF CHANGE IN NAME by DIANNA JOHNSON (Estuar, Paul) (Entered: 12/15/2006)
87 Consent MOTION for Extension of Time to Respond to Plaintiffs' Motion to File a Second Amended Complaint [Dkt. 84] by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Baker, Denise) (Entered: 12/19/2006)
MINUTE ENTRY ORDER granting 87 Defendant's Motion for Extension of Time. The District of Columbia shall file its opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint no later than January 19, 2007. Signed by Judge Rosemary M. Collyer on 12/20/2006. (ses) (Entered: 12/20/2006)
88 NOTICE OF APPEAL as to 81 Order on Motion to Dismiss,,, by TODD DILLARD. Fee Status: No Fee Paid. Parties have been notified. (McDaniel, Oliver) (Entered: 01/12/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 88 Notice of Appeal (tg, ) (Entered: 01/16/2007)
89 Consent MOTION for Extension of Time to File Response/Reply as to 84 MOTION for Leave to File second amended complaint (Three−Day Extension) by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 01/18/2007)
MINUTE ENTRY ORDER granting 89 Defendants' Motion for Extension of Time. The Federal Defendants shall file their opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint no later than January 23, 2007. No further extensions of time will be granted. Signed by Judge Rosemary M. Collyer on 1/19/2007. (ses) (Entered: 01/19/2007)
90 Memorandum in opposition to re 84 MOTION for Leave to File second amended complaint filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 01/23/2007)
USCA Case Number 07−5037 for 88 Notice of Appeal filed by TODD DILLARD. (tg, ) (Entered: 02/05/2007)
91 Consent MOTION for Extension of Time to file reply to federal defendants' opposition to moton to file second amended complaint by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/05/2007)
MINUTE ENTRY ORDER granting 91 Plaintiffs' Motion for Extension of Time. Plaintiffs shall file their reply in support of their Motion for Leave to File a Second Amended Complaint no later than February 12, 2007. Signed by Judge Rosemary M. Collyer on 2/5/2007. (ses) (Entered: 02/05/2007)
92 REPLY to opposition to motion re 84 MOTION for Leave to File second amended complaint filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/12/2007)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 19 of 45

02/13/2007
02/13/2007
02/16/2007 02/16/2007
02/20/2007 02/20/2007 02/20/2007 02/21/2007 02/21/2007 02/22/2007 02/22/2007 02/23/2007 02/26/2007
02/27/2007 02/28/2007

93 Consent MOTION for Leave to File Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Proposed Opposition to Plaintiffs' Motion to File Second Amended Complaint)(Baker, Denise) (Entered: 02/13/2007)
MINUTE ENTRY ORDER denying without prejudice 93 District of Columbia's Motion for Leave to File an Opposition Out of Time. The District of Columbia's motion to join the Federal Defendants' Opposition to Plaintiffs' Motion to File a Second Amended Complaint is denied without prejudice for failure to show good cause. See Fed. R. Civ. P. 6(b). Signed by Judge Rosemary M. Collyer on 2/13/2007. (ses) (Entered: 02/13/2007)
94 Consent MOTION for Leave to File Renewed Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order # 2 Affidavit Declaration of Denise J. Baker)(Baker, Denise) (Entered: 02/16/2007)
95 NOTICE Plaintiffs did not consent to District's renewed Motion (dck #94) by DIANNA JOHNSON re 94 Consent MOTION for Leave to File Renewed Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint (Attachments: # 1 Exhibit e−mail from Denise Baker 2−6−07# 2 Exhibit e−mail from Denise Baker 1−24−07)(Claiborne, William) (Entered: 02/16/2007)
96 MOTION for Leave to File Sur−Reply by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order # 2 Surreply)(McDaniel, Oliver) (Entered: 02/20/2007)
97 Memorandum in opposition to re 96 MOTION for Leave to File Sur−Reply filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/20/2007)
98 ENTERED IN ERROR.....Memorandum in opposition to re 96 MOTION for Leave to File Sur−Reply filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) Modified on 2/21/2007 (nmw, ). (Entered: 02/20/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 98 was entered in error as a duplicate of Document No. 97 and will not be refiled. (nmw, ) (Entered: 02/21/2007)
99 Memorandum in opposition to re 94 Consent MOTION for Leave to File Renewed Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/21/2007)
100 MOTION for Extension of Time to File Answer re 58 Amended Complaint, by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 02/22/2007)
101 Memorandum in opposition to re 100 MOTION for Extension of Time to File Answer re 58 Amended Complaint, filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 02/22/2007)
102 NOTICE of Appearance by Ellen A. Efros on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Efros, Ellen) (Entered: 02/23/2007)
103 ANSWER to Amended Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA. Related document: 58 Amended Complaint, filed by DIANNA JOHNSON,, RUBBIYA MUHAMMED,, CAROLYN MONTGOMERY,, TONYA CECELIA MACK,, LAURA LAMBERT,, DIANNE WILKES,, VICKIE BROOKS,, KEISHA HOLLOWAY,, DONNA CURTIS,.(Baker, Denise) (Entered: 02/26/2007)
NOTICE of Hearing:A Telephone Conference is set for 3/2/2007 at 9:30 AM in before Judge Rosemary M. Collyer. (cdw) (Entered: 02/27/2007)
104 REPLY to opposition to motion re 93 Consent MOTION for Leave to File Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint, 94 Consent MOTION for Leave to File Renewed Nunc Pro Tunc Opposition to Plaintiffs' Motion to file Second Amended Complaint filed by GOVERNMENT OF THE DISTRICT OF

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 20 of 45

02/28/2007 02/28/2007 03/01/2007 03/02/2007 03/04/2007 03/05/2007 03/06/2007 03/06/2007
03/06/2007
03/07/2007
03/07/2007 03/16/2007 03/16/2007 03/22/2007
05/18/2007 05/24/2007 05/24/2007 05/24/2007

COLUMBIA. (Baker, Denise) (Entered: 02/28/2007)
105 NOTICE regarding District's reply (#104) by DIANNA JOHNSON (Claiborne, William) (Entered: 02/28/2007)
106 REPLY to opposition to motion re 96 MOTION for Leave to File Sur−Reply filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 02/28/2007)
107 NOTICE of Appearance by Robert Hildum on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Hildum, Robert) (Entered: 03/01/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 3/2/2007. (cdw) (Entered: 03/05/2007)
108 RESPONSE TO ORDER OF THE COURT proposed discovery filed by DIANNA JOHNSON. (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 03/04/2007)
109 NOTICE of Appearance by William Mark Nebeker on behalf of UNITED STATES MARSHALS SERVICE, TODD DILLARD (Nebeker, William) (Entered: 03/05/2007)
110 RESPONSE to Plaintiffs' Request to Enter a Scheduling Order filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Baker, Denise) (Entered: 03/06/2007)
111 RESPONSE re 108 Response to Order of the Court (OPPOSITION TO PLAINTIFFS' RESPONSE TO ORDER OF COURT ON ENTRY OF SCHEDULING ORDER) filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/06/2007)
112 Consent MOTION for Extension of Time to File Response/Reply as to 100 MOTION for Extension of Time to File Answer re 58 Amended Complaint, by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/06/2007)
MINUTE ENTRY ORDER granting 112 Defendants' Motion for Extension of Time. The Federal Defendants shall file their reply brief in support of their Motion for an Extension of Time to Answer the First Amended Complaint no later than March 7, 2007. Signed by Judge Rosemary M. Collyer on 3/7/2007. (ses) (Entered: 03/07/2007)
113 REPLY to opposition to motion re 100 MOTION for Extension of Time to File Answer re 58 Amended Complaint, filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 03/07/2007)
114 SCHEDULING ORDER. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 3/16/2007. (ses) (Entered: 03/16/2007)
Set Deadlines/Hearings: Status Report due by 5/18/2007. (cdw) (Entered: 03/20/2007)
115 TRANSCRIPT of Proceedings held on April 7, 2006 Status Conference before Judge Rosemary M. Collyer. Court Reporter: Crystal M. Pilgrim. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (tg, ) (Entered: 03/26/2007)
116 STATUS REPORT by DIANNA JOHNSON. (Claiborne, William) (Entered: 05/18/2007)
MINUTE ENTRY ORDER granting 84 Plaintiffs' Motion for Leave to File Second Amended Complaint. Signed by Judge Rosemary M. Collyer on 5/24/2007. (ses) (Entered: 05/24/2007)
MINUTE ENTRY ORDER granting 96 Defendant's Motion for Leave to File Surreply. Signed by Judge Rosemary M. Collyer on 5/24/2007. (ses) (Entered: 05/24/2007)
MINUTE ENTRY ORDER denying as moot 94 Defendant's Motion for Leave to File Out of Time Opposition to Plaintiff's Motion for Leave to File Second Amended

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 21 of 45

05/24/2007 05/24/2007
05/24/2007 05/24/2007 05/25/2007 05/25/2007 05/25/2007 05/28/2007 05/31/2007 05/31/2007 06/01/2007
06/01/2007

Complaint. Signed by Judge Rosemary M. Collyer on 5/24/2007. (ses) (Entered: 05/24/2007)
MINUTE ENTRY ORDER granting 100 Defendants' Motion for Extension of Time to Answer. The Federal Defendants shall file their answer to the Second Amended Complaint no later than June 14, 2007. Signed by Judge Rosemary M. Collyer on 5/24/2007. (ses) (Entered: 05/24/2007)
117 Second AMENDED COMPLAINT against GOVERNMENT OF THE DISTRICT OF COLUMBIA, UNITED STATES MARSHALS SERVICE, TODD DILLARD filed by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, DIANNA JOHNSON, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY.(tg, ) (Entered: 05/25/2007)
118 SURREPLY to 84 MOTION for Leave to File second amended complaint filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (tg, ) (Entered: 05/25/2007)
Set Deadlines/Hearings: Answer to second amended complaint 117 due by 6/14/2007. (cdw) (Entered: 05/25/2007)
119 NOTICE of arrange status teleconference by DIANNA JOHNSON re 114 Scheduling Order (Claiborne, William) (Entered: 05/25/2007)
120 RESPONSE re 119 Notice (Other) Plaintiffs' "Status Report" of May 25, 2007 filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 05/25/2007)
121 NOTICE on e−mail traffic on initial disclosures among counsel by DIANNA JOHNSON (Attachments: # 1 Exhibit Claiborne e−mail dated 4−5−07 to McDaniel and Hildum on initial disclosures# 2 Exhibit McDaniel e−mail on initial disclosures dated 4−13−07# 3 Exhibit Hildum e−mail on initial disclosures date 4−17−07)(Claiborne, William) (Entered: 05/25/2007)
122 ERRATA by UNITED STATES MARSHALS SERVICE, TODD DILLARD 120 Response to Document filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 05/28/2007)
NOTICE of Hearing: A Status Conference is set for 6/1/2007 at 11:00 AM in Courtroom 2, main building, 2nd floor, before Judge Rosemary M. Collyer. (cdw) (Entered: 05/31/2007)
123 MOTION for Extension of Time to Complete Discovery by UNITED STATES MARSHALS SERVICE, TODD DILLARD (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/31/2007)
MINUTE ENTRY ORDER. Pursuant to the parties' agreement at the status conference held in open court on June 1, 2007, the Federal Defendants shall produce documents responsive to Plaintiffs' requests for production no later than June 29, 2007, and shall produce a witness in response to Plaintiffs' Rule 30(b)(6) deposition notice no later than July 15, 2007. All parties shall exchange initial disclosures no later than June 29, 2007. The District of Columbia shall conduct a further search for the person most knowledgeabe regarding the topics listed in Plaintiffs' Rule 30(b)(6) depositions. A telephone conference is scheduled for July 10, 2007, at 1:30 p.m. to discuss issues, if any, related to the Federal Defendants' responses to Plaintiffs' document requests. A telephone conference is scheduled for July 19, 2007, at 1:30 p.m. to discuss issues, if any, related to Plaintiffs' Rule 30(b)(6) deposition notices. Given that the parties have agreed to the foregoing schedule, the Court will deny as moot 123 Defendants' Motion for Extension of Time to Complete Discovery. Signed by Judge Rosemary M. Collyer on 6/1/2007. (ses) (Entered: 06/01/2007)
Minute Entry. Proceedings held before Judge Rosemary M. Collyer: Status Conference held on 6/1/2007. Telephone Conferences are set for 7/10/2007 at 1:30 PM and 7/19/2007 at 1:30 PM before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 06/04/2007)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 22 of 45

06/11/2007 06/14/2007 06/19/2007 06/22/2007 06/22/2007 06/29/2007 06/29/2007
06/29/2007
06/29/2007 07/10/2007
07/10/2007
07/11/2007 07/11/2007

125 ORDER of USCA (certified copy) granting appellant's motion to dismiss appeal 88 , and this case is hereby dismissed as to TODD DILLARD. (erd) (Entered: 06/15/2007)
124 ANSWER to Amended Complaint by UNITED STATES MARSHALS SERVICE, TODD DILLARD. Related document: 117 Amended Complaint, filed by LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, VICKIE BROOKS, DIANNE WILKES, RUBBIYA MUHAMMED, DIANNA JOHNSON, DONNA CURTIS, KEISHA HOLLOWAY.(Nebeker, William) (Entered: 06/14/2007)
126 Consent MOTION for Extension of Time to File Answer To Second Amended Complaint by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Hildum, Robert) (Entered: 06/19/2007)
MINUTE ENTRY ORDER granting 126 District Defendants' Motion for Extension of Time to Answer. The District Defendants shall file their answer or other response to the Second Amended Complaint no later than June 29, 2007. Signed by Judge Rosemary M. Collyer on 6/22/2007. (lcrmc2) (Entered: 06/22/2007)
Set Deadlines/Hearings: Answer to second amended complaint due by 6/29/2007. (cdw) (Entered: 06/25/2007)
127 Unopposed MOTION for Extension of Time to Confer and File Rule 16.3 Report by UNITED STATES MARSHALS SERVICE, TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/29/2007)
MINUTE ENTRY ORDER granting 127 Defendants' Motion for Extension of Time. Defendants shall file their Rule 16.3 Report no later than July 17, 2007. The Court notes, for the record, that it grants this motion with great reluctance, having specifically warned Defendants that continued untimeliness would be strongly disfavored. That warning is sounded again. This old case must move forward to resolution. Recognizing the work loads of the Assistant United States Attorneys, the Court again advises that it is now necessary for the U.S. Attorney to devote sufficient resources to this case so that all future performance of the Office will be timely. This is the last time the Court will warn that performance must be timely. Signed by Judge Rosemary M. Collyer on 6/29/2007. (lcrmc2) (Entered: 06/29/2007)
128 ANSWER to Amended Complaint with Jury Demand by GOVERNMENT OF THE DISTRICT OF COLUMBIA. Related document: 117 Amended Complaint, filed by LAURA LAMBERT, TONYA CECELIA MACK, CAROLYN MONTGOMERY, VICKIE BROOKS, DIANNE WILKES, RUBBIYA MUHAMMED, DIANNA JOHNSON, DONNA CURTIS, KEISHA HOLLOWAY.(Hildum, Robert) (Entered: 06/29/2007)
Set/Reset Deadlines: Meet & Confer Report due by 7/17/2007. (tth,) (Entered: 06/29/2007)
129 STIPULATION (PROTECTIVE ORDER) [Court Signature Needed] by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, GOVERNMENT OF THE DISTRICT OF COLUMBIA, DIANNA JOHNSON, UNITED STATES MARSHALS SERVICE, TODD DILLARD, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY. (McDaniel, Oliver) (Entered: 07/10/2007)
MINUTE ENTRY ORDER. Pursuant to the Court's instructions during the telephone conference held today, it is hereby ordered that Defendants shall file, no later than 11:00 a.m. on July 11, 2007, a statement explaining what discovery they need in order to oppose Plaintiffs' motion for class certification; and Plaintiffs shall file a response to Defendants' discovery statement no later than 11:00 a.m. on July 12, 2007. It is further ordered that the District of Columbia shall produce documents responsive to Plaintiffs' requests for production no later than August 31, 2007. A further telephone conference is set for 9:30 a.m. on Friday, July 13, 2007. Signed by Judge Rosemary M. Collyer on 7/10/2007. (lcrmc2) (Entered: 07/10/2007)
130 MEMORANDUM by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Hildum, Robert) (Entered: 07/11/2007)
131 MEMORANDUM by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 07/11/2007)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 23 of 45

07/11/2007 07/12/2007 07/13/2007
07/13/2007 07/17/2007
07/18/2007 07/18/2007 07/19/2007 07/19/2007
07/19/2007 07/19/2007 07/20/2007 07/23/2007

132 STIPULATED PROTECTIVE ORDER signed by Judge Rosemary M. Collyer on July 10, 2007. (cdw) (Entered: 07/11/2007)
133 RESPONSE re 130 Memorandum, 131 Memorandum filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 07/12/2007)
MINUTE ENTRY ORDER. Pursuant to the Court's instructions during the telephone conference call held today, it is hereby ordered that Plaintiffs shall file their motion for class certification no later than July 20, 2007; Defendants shall file their oppositions no later than August 20, 2007; and Plaintiffs shall file their reply no later than September 10, 2007. Signed by Judge Rosemary M. Collyer on 7/13/2007. (lcrmc2) (Entered: 07/13/2007)
Set Deadlines/Hearings: Plaintiff's motion due by 7/20/2007. Defendant's response due by 8/20/2007. Plaintiff's reply due by 9/10/2007. (cdw) (Entered: 07/16/2007)
134 Joint MOTION for Extension of Time to File A Meet and Confer Statement (Two−Day) by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, GOVERNMENT OF THE DISTRICT OF COLUMBIA, DIANNA JOHNSON, UNITED STATES MARSHALS SERVICE, TODD DILLARD, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY (McDaniel, Oliver) (Entered: 07/17/2007)
MINUTE ENTRY ORDER granting 134 Joint Motion for Extension of Time. The parties shall file their Rule 16.3 Report no later than July 19, 2007. Signed by Judge Rosemary M. Collyer on 7/18/2007. (lcrmc2) (Entered: 07/18/2007)
Set Deadlines/Hearings: Rule 16.3 Report due by 7/19/2007. (cdw) (Entered: 07/19/2007)
135 Consent MOTION for Extension of Time to file plaintiffs' motion to certify by DIANNA JOHNSON (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 07/19/2007)
MINUTE ENTRY ORDER granting 135 Plaintiffs' Motion for Extension of Time. Plaintiffs shall file their motion for class certification no later than July 23, 2007; Defendants shall file their oppositions to said motion no later than August 23, 2007; and Plaintiffs shall file their reply in support of said motion no later than September 13, 2007. In addition, a further telephone conference is set for August 17, 2007, at 1:45 p.m. Signed by Judge Rosemary M. Collyer on 7/19/2007. (lcrmc2) (Entered: 07/19/2007)
136 MEET AND CONFER STATEMENT. (McDaniel, Oliver) (Entered: 07/19/2007)
Set Deadlines/Hearings: Plaintiff's Motion due by 7/23/2007. Defendant's response due by 8/23/2007. Plaintiff's Reply due by 9/13/2007. Telephone Conference set for 8/17/2007 01:45 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 07/20/2007)
137 NOTICE of Appearance by Robin Michelle Meriweather on behalf of UNITED STATES MARSHALS SERVICE, TODD DILLARD (Meriweather, Robin) (Entered: 07/20/2007)
138 MOTION to Certify Class by DIANNA JOHNSON (Attachments: # 1 memorandum of law# 2 Exhibit List# 3 # 4 Exhibit Johnson affidavit# 5 Exhibit PE# 3 Muhamed CIS report# 6 Exhibit PE#4 Muhhamed affidavit# 7 Exhibit PE#5 Mack CIS report# 8 Exhibit PE#6 Mack affidavit# 9 Exhibit PE#7 J Shealey depo# 10 Exhibit PE#8 J Hargrove depo# 11 Exhibit PE#9 Clifton interog# 12 Exhibit PE#10 Williams settlement order# 13 Exhibit PE#11 Mark Shealey depo Johnson# 14 Exhibit PE#12 Lock up list page# 15 Exhibit Bynum trial plan# 16 Exhibit PE#13A dck # 110 granting trial plan and notice.pdf# 17 Exhibit PE#14 Johnson proposed trial plan# 18 Exhibit PE#15 Morgan Order (consent decree)# 19 Exhibit PE#16 Wilkes affidavit# 20 Exhibit PE#17 Hollaway affidavit# 21 Exhibit PE#18 Brooks affidavit# 22 Exhibit PE#19 Wallace affidavit# 23 Exhibit PE#20 Galloway affidavit# 24 Exhibit PE#21 Croomer affidavit# 25 Exhibit PE#23 Craft cert opinion# 26 Exhibit PE#24 Johnson − Kriegler Declaration# 27 Exhibit PE#24A Kriegler decl. Exhibit A# 28 Exhibit PE#24A Kriegler decl. Exhibit B# 29 Exhibit PE#24A Kriegler decl. Exhibit B# 30 Exhibit PE#25 Affidavit WCC III atty qualifications# 31 Exhibit PE#26 Litt

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 24 of 45

07/26/2007 07/27/2007 07/27/2007
07/30/2007
08/07/2007 08/08/2007
08/08/2007 08/08/2007 08/17/2007 08/30/2007 08/30/2007 08/30/2007 08/31/2007 08/31/2007 09/10/2007 09/10/2007

declaration# 32 Text of Proposed Order)(Claiborne, William) (Entered: 07/23/2007)
139 ERRATA coorected Plaintiffs' Ex. #14 (plaintiffs' trial plan) by DIANNA JOHNSON 138 MOTION to Certify Class filed by DIANNA JOHNSON. (Attachments: # 1 Exhibit redlined corrected Plaintiffs' Exhibit #14# 2 Exhibit final clean corrected PE#14 Trial plan Johnson.pdf)(Claiborne, William) (Entered: 07/26/2007)
140 SCHEDULING ORDER. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 7/27/2007. (lcrmc2) (Entered: 07/27/2007)
Set/Reset Deadlines: Fact Discovery due by 2/29/2008, Dispositive Motions due by 6/16/2008, Oppositions to Dispositive Motions due by 7/16/2008, Replies to Dispositive Motions due by 8/6/2008, Motions to join third parties or to amend the pleadings due by 3/31/2008, Parties' designation of experts and reports pursuant to Fed. R. Civ. P. 26(a)(2) due 3/31/2008. Expert discovery due 4/30/08. (tth,) (Entered: 07/27/2007)
MINUTE ENTRY ORDER. The July 27, 2007, Scheduling Order is modified as follows: Paragraph 2, regarding the number of allowable depositions, is vacated. The parties may revisit this issue, if necessary, after Plaintiffs have completed their initial depositions of the searching officers. Signed by Judge Rosemary M. Collyer on 7/30/2007. (lcrmc2) (Entered: 07/30/2007)
141 NOTICE of Appearance by Sean Robert Day on behalf of all plaintiffs (Day, Sean) (Entered: 08/07/2007)
MINUTE ENTRY ORDER. Pursuant to the parties' joint request during the telephone conference held today, it is hereby ordered that Defendants shall file their oppositions to the motion for class certification no later than August 30, 2007, and Plaintiffs shall file their reply in support of their motion for class certification no later than September 20, 2007. Signed by Judge Rosemary M. Collyer on 8/8/2007. (lcrmc2) (Entered: 08/08/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/8/2007. (cdw) (Entered: 08/09/2007)
Set Deadlines/Hearings: Defendants response due by 8/30/2007. Plaintiff's reply due by 9/20/2007. (cdw) (Entered: 08/09/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/17/2007. (cdw) (Entered: 08/20/2007)
MINUTE ENTRY ORDER. Pursuant to the parties' request during the telephone conference held today, Defendants' oppositions to Plaintiffs' motion for class certification shall be filed no later than August 31, 2007. Signed by Judge Rosemary M. Collyer on 8/30/2007. (lcrmc2) (Entered: 08/30/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/30/2007. (cdw) (Entered: 08/31/2007)
Set Deadlines/Hearings: Defendant's response to Motion for Class Certification due by 8/31/2007. (cdw) (Entered: 08/31/2007)
142 Memorandum in opposition to re 138 MOTION to Certify Class filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Hildum, Robert) (Entered: 08/31/2007)
143 Memorandum in opposition to re 138 MOTION to Certify Class filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Nebeker, William) (Exhibits to Memorandum in Opposition to Motion FILED UNDER SEAL) Modified on 9/11/2007 (tg, ). (Entered: 08/31/2007)
144 NOTICE Of Filing Exhibits Under Seal by UNITED STATES MARSHALS SERVICE, TODD DILLARD re 143 Memorandum in Opposition (Nebeker, William) (Entered: 09/10/2007)
145 NOTICE Amended Certificate Of Service by UNITED STATES MARSHALS SERVICE, TODD DILLARD re 144 Notice (Other), 143 Memorandum in Opposition (Nebeker, William) (Entered: 09/10/2007)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 25 of 45

09/12/2007 09/19/2007
09/20/2007 09/28/2007 09/28/2007 11/26/2007 11/27/2007 11/29/2007
12/03/2007 12/03/2007 12/04/2007
12/04/2007 12/14/2007 12/17/2007 01/14/2008

146 NOTICE of Appearance by Leah Brownlee Taylor on behalf of GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) (Entered: 09/12/2007)
MINUTE ENTRY ORDER. On September 19, 2007, Plaintiffs' counsel contacted the Court by telephone to request an extension of time to file a reply in support of Plaintiffs' motion for class certification. That request is granted, and Plaintiffs shall file their reply in support of said motion no later than September 28, 2007. Any future requests for extensions of time in this case must be submitted to the Court by formal motion pursuant to the Federal Rules of Civil Procedure and the Local Rules of this Court. Signed by Judge Rosemary M. Collyer on 9/19/2007. (lcrmc2) (Entered: 09/19/2007)
Set/Reset Deadlines: Reply due by 9/28/2007. (tth,) (Entered: 09/20/2007)
147 REPLY to opposition to motion re 138 MOTION to Certify Class filed by DIANNA JOHNSON. (Attachments: # 1 Exhibit Mack docket sheet# 2 Exhibit Johnson arrest events)(Claiborne, William) (Entered: 09/28/2007)
148 REPLY to opposition to motion re 138 MOTION to Certify Class reply to District's opposition filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 09/28/2007)
NOTICE of Hearing: A Telephone Conference is set for 11/29/2007 at 10:30 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 11/26/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/27/2007. (cdw) (Entered: 11/27/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/29/2007. A Status Conference is set for 12/4/2007 at 12:00 PM in Courtroom 2 before Judge Rosemary M. Collyer. A further Telephone Conference is set for 12/17/2007 at 9:30 AM before Judge Rosemary M. Collyer. (cdw, ) (Entered: 12/03/2007)
149 NOTICE CJIS−CIS discovery by DIANNA JOHNSON (Attachments: # 1 Appendix CJIS disco letter)(Claiborne, William) (Entered: 12/03/2007)
150 NOTICE asked and answered objections in deposition by DIANNA JOHNSON (Attachments: # 1 Appendix deposition transcript)(Claiborne, William) (Entered: 12/03/2007)
MINUTE ENTRY ORDER. Pursuant to the schedule established at the December 4, 2007 status conference, it is hereby ordered that: (1) the District of Columbia shall provide the parties a copy of the code tables applicable to the CJIS database no later than December 19, 2007; (2) Plaintiffs shall provide the parties with a spreadsheet of potential female members of the "Fourth Amendment Class" no later than January 15, 2008; and (3) Defendants shall provide Plaintiffs with objections to such potential members no later than February 21, 2008. It is further ordered that, by January 15, 2008, Defendants must inform the Court whether Defendants approve of the method by which data from the CIS database was extracted and shall propose a resolution of the potential class(es) of males to Plaintiffs' counsel. A further status conference is set for February 21, 2008 at 10:00 a.m. Parties are instructed to file relevant documents prior to the status conference. Signed by Judge Rosemary M. Collyer on 12/4/07. (lcrmc2) (Entered: 12/04/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 12/4/2007.Evidentiary Hearing set for 2/21/2008 at 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (Court Reporter: Catalina Kerr) (cdw) (Entered: 12/06/2007)
151 NOTICE of Filing Regarding Arrest Field Codes Order by GOVERNMENT OF THE DISTRICT OF COLUMBIA re Order,,,, (Brownlee Taylor, Leah) (Entered: 12/14/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/17/2007. (cdw) (Entered: 12/18/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 1/14/2008. A further Telephone Conference is set for 1/31/2008 at 12:30 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 01/14/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 26 of 45

01/15/2008
01/15/2008
01/17/2008 01/17/2008 01/22/2008 01/22/2008 01/29/2008
01/31/2008 01/31/2008 02/04/2008
02/04/2008 02/08/2008 02/08/2008

152 Joint MOTION for Extension of Time to Provide Information or Take Positions by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, GOVERNMENT OF THE DISTRICT OF COLUMBIA, DIANNA JOHNSON, UNITED STATES MARSHALS SERVICE, TODD DILLARD, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 01/15/2008)
MINUTE ENTRY ORDER granting 152 Joint Motion for Extension of Time. Plaintiffs shall provide all parties with a spreadsheet of potential female members of the "Fourth Amendment Class" no later than January 17, 2008; Defendants shall provide the Court and counsel with a proposal for resolution of the potential class(es) of males no later than January 17, 2008; and Defendants shall inform the Court whether Defendants approve of the method by which data from the CIS database was extracted no later than January 22, 2008. Signed by Judge Rosemary M. Collyer on 1/15/08. (lcrmc2) (Entered: 01/15/2008)
153 NOTICE of Federal Defendants' Proposal for Resolution of the Potential Class(es) of Males by UNITED STATES MARSHALS SERVICE, TODD DILLARD (McDaniel, Oliver) (Entered: 01/17/2008)
154 NOTICE of Filing Regarding Potential Class(es) of Males by GOVERNMENT OF THE DISTRICT OF COLUMBIA re Order on Motion for Extension of Time to,, (Brownlee Taylor, Leah) (Entered: 01/17/2008)
155 NOTICE of Filing Regarding Methodology by GOVERNMENT OF THE DISTRICT OF COLUMBIA re Order on Motion for Extension of Time to,, (Brownlee Taylor, Leah) (Entered: 01/22/2008)
156 NOTICE of Federal Defendants' Response Concerning CIS Database by UNITED STATES MARSHALS SERVICE, TODD DILLARD (McDaniel, Oliver) (Entered: 01/22/2008)
MINUTE ENTRY ORDER. In Plaintiffs' Motion for Class Certification 138 , Plaintiffs have proffered definitions for the "Primary Fourth Amendment Class" and the "Fifth Amendment Class" that are inconsistent for reasons that are unclear. Plaintiffs are ORDERED to provide revised definitions within 5 days (i.e., no later than February 5, 2008) or to provide a written explanation for the inconsistency. Signed by Judge Rosemary M. Collyer on 1/29/08. (lcrmc2) (Entered: 01/29/2008)
157 NOTICE revisions to class definitions by DIANNA JOHNSON re Order, (Attachments: # 1 Exhibit redlined proposed revisions to class definitions, # 2 Exhibit clean copy revised class definitions)(Claiborne, William) (Entered: 01/31/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 1/31/2008. A further Telephone Conference is set for 2/8/2008 at 2:00 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 02/01/2008)
MINUTE ENTRY ORDER. Pursuant to the teleconference held on January 31, 2008, and for good cause shown, the July 27, 2007 Scheduling Order 140 will be amended as follows: (1) fact discovery, limited to liability issues, shall be completed no later than May 27, 2008; the parties designations of experts and reports pursuant to Fed. R. Civ. P. 26(a)(2) shall be made no later than June 30, 2008; expert discovery shall be completed no later than July 29, 2008; dispositive motions shall be filed no later than September 8, 2008; oppositions to dispositive motions shall be filed no later than October 8, 2008; and replies in support of dispositive motions shall be filed no later than October 29, 2008. Signed by Judge Rosemary M. Collyer on 2/4/08. (lcrmc2) (Entered: 02/04/2008)
Set Deadlines/Hearings: Discovery closes 7/29/2008. Dispositive Motions due by 9/8/2008. Response to Dispositive Motions due by 10/8/2008. Reply to Dispositive Motions due by 10/29/2008. (cdw) (Entered: 02/04/2008)
158 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 2/8/08. (lcrmc2) (Entered: 02/08/2008)
159 ORDER granting in part and denying in part 138 Plaintiffs' Motion to Certify Class. See attached Order for further details. Signed by Judge Rosemary M. Collyer on

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 27 of 45

02/08/2008 02/21/2008 02/21/2008
02/21/2008 02/21/2008 02/27/2008 02/29/2008 02/29/2008 03/03/2008 03/04/2008
03/04/2008 03/11/2008
03/11/2008 03/11/2008 03/14/2008

2/8/08. (lcrmc2) (Entered: 02/08/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 2/8/2008. (cdw) (Entered: 02/11/2008)
160 NOTICE Objections Filing by GOVERNMENT OF THE DISTRICT OF COLUMBIA re Order,,,, (Brownlee Taylor, Leah) (Entered: 02/21/2008)
MINUTE ENTRY ORDER. Pursuant to the telephone conference held on February 21, 2008, Defendants are ordered to file their objections to Plaintiffs' proposed members of the Fourth Amendment Class, using the appropriate columns in the spreadsheet created by Plaintiffs, no later than March 25, 2008. A hearing on the objections is set for April 7, 2008 at 9:00 a.m. A telephone conference to discuss ongoing discovery matters is set for March 4, 2008 at 9:30 a.m. Signed by Judge Rosemary M. Collyer on 2/21/08. (lcrmc2) (Entered: 02/21/2008)
Set/Reset Deadlines/Hearings: Defendant's Objections due by 3/25/2008. Hearing on Objections set for 4/7/2008 09:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. Telephone Conference set for 3/4/2008 09:30 AM in Chambers before Judge Rosemary M. Collyer. (cdw) (Entered: 02/27/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 2/21/2008. (cdw) (Entered: 02/27/2008)
161 NOTICE CJIS charge descriptors classifications by DIANNA JOHNSON re Order,, (Attachments: # 1 cover letter, # 2 email, # 3 revised plaintiffs' classification of CJIS charge descriptors)(Claiborne, William) (Entered: 02/27/2008)
162 ENTERED IN ERROR.....NOTICE of Cross Claim by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) Modified on 3/3/2008 (tg, ). (Entered: 02/29/2008)
163 CROSSCLAIM against TODD DILLARD filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA.(tg, ) (Entered: 03/03/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re 162 Notice of Crossclaim was entered in error. The clerk properly filed the Crossclaim under docket entry number 163 . (tg, ) (Entered: 03/03/2008)
MINUTE ENTRY ORDER. Pursuant to the agreement of the parties during the teleconference held on March 4, 2008, it is hereby ORDERED that Defendant District of Columbia shall file a motion for leave to file its cross−claim against Todd Dillard no later than April 1, 2008. It is FURTHER ORDERED that the District of Columbia shall file its motion for clarification of Todd Dillard's status as a Defendant no later than April 1, 2008; Plaintiffs shall file a response no later than May 1, 2008; and all Defendants may file a reply no later than May 22, 2008. A further teleconference will be held at 11:45 a.m. on March 11, 2008. Signed by Judge Rosemary M. Collyer on 3/4/08. (lcrmc2) (Entered: 03/04/2008)
Set/Reset Deadlines/Hearings: Defendants Motions due by 4/1/2008. Plaintiff's Responses due by 5/1/2008 Defendants Replies due by 5/22/2008. (cdw) (Entered: 03/05/2008)
MINUTE ENTRY ORDER. Pursuant to today's teleconference, the parties shall finalize proposed stipulations no later than March 18, 2008; Plaintiffs shall inform the parties of the schedule by which they intend to produce discovery to the District of Columbia no later than March 18, 2008; and a further teleconference is set for 2:00 p.m. on March 18, 2008. Signed by Judge Rosemary M. Collyer on 3/11/08. (lcrmc2) (Entered: 03/11/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 3/11/2008. (cdw) (Entered: 03/11/2008)
Set/Reset Deadlines/Hearings: Telephone Conference set for 3/18/2008 02:00 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 03/12/2008)
164 NOTICE joint proposal on class notice by DIANNA JOHNSON re 159 Order on Motion to Certify Class (Claiborne, William) (Entered: 03/14/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 28 of 45

03/18/2008 03/18/2008 03/18/2008 03/25/2008 03/25/2008 04/01/2008 04/01/2008
04/07/2008
04/07/2008 04/07/2008 04/11/2008 04/18/2008 04/18/2008 04/25/2008 04/28/2008

MINUTE ENTRY ORDER. Pursuant to the teleconference held on March 18, 2008, Plaintiffs shall respond to the District of Columbia's discovery requests no later than May 1, 2008. A further teleconference is set for 10:30 a.m. on April 2, 2008. Signed by Judge Rosemary M. Collyer on 3/18/08. (lcrmc2) (Entered: 03/18/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 3/18/2008. (cdw) (Entered: 03/18/2008)
Set/Reset Deadlines/Hearings: Telephone Conference set for 4/2/2008 10:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. Plaintiff's response to discovery requests due by 5/1/2008. (cdw) (Entered: 03/19/2008)
165 NOTICE of Federal Defendants' Objections to Plaintiffs' Proposed Class List Spreadsheet by TODD DILLARD (McDaniel, Oliver) (Entered: 03/25/2008)
166 NOTICE of Objections by GOVERNMENT OF THE DISTRICT OF COLUMBIA re Set/Reset Deadlines/Hearings, (Attachments: # 1 Exhibit A− Objections)(Brownlee Taylor, Leah) (Entered: 03/25/2008)
167 MOTION Clarification re 158 Memorandum & Opinion by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) (Entered: 04/01/2008)
168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A− District's Cross Claim Against Todd Dillard, Individually, # 2 Exhibit B− District's Third Party Complaint Against the United States Marshals Service)(Brownlee Taylor, Leah) (Entered: 04/01/2008)
MINUTE ENTRY ORDER. Plaintiffs shall file a proposed discovery schedule for the next 3 months no later than April 11, 2008; Defendants may respond to the proposal no later than April 18, 2008; and Plaintiffs may reply no later than April 25, 2008. A scheduling conference is set for 2:30 p.m. on May 2, 2008. It is further ordered that the District of Columbia shall file a proposed dispositive motions briefing schedule no later than April 11, 2008. The Federal Defendants and Plaintiffs may respond to the proposal no later than April 25, 2008. Signed by Judge Rosemary M. Collyer on 4/7/08. (lcrmc2) (Entered: 04/07/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 4/7/2008. A Scheduling Conference is set for 5/2/2008 at 2:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 04/08/2008)
Set/Reset Deadlines/Hearings: Plaintiff's Proposed Discovery Schedule by 4/11/2008. Response due by 4/18/2008. Reply due by 4/25/2008. Scheduling Conference set for 5/2/2008 02:30 PM in Courtroom 2 before Judge Rosemary M. Collyer. Proposed Dispositive Motion Briefing Schedule due by 4/11/2008. (cdw) (Entered: 04/08/2008)
169 NOTICE plaintiffs' proposed disco plan by DIANNA JOHNSON re Set/Reset Deadlines/Hearings, (Attachments: # 1 Exhibit plaintiffs' proposed disco plan)(Claiborne, William) (Entered: 04/11/2008)
170 NOTICE of Dispositive Motion Schedule and Ninety Day Discovery Plan by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) (Entered: 04/18/2008)
171 RESPONSE re 169 Notice (Other) Plaintiff's Proposed Discovery Plan filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 04/18/2008)
172 Unopposed MOTION for Extension of Time to Respond To the District of Columbias Notice Of Discovery Plan And Dispositive Briefing Schedule by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 04/25/2008)
MINUTE ENTRY ORDER granting in part and denying in part 172 Federal Defendants' Motion for Extension of Time. Federal Defendants shall file their response to the District of Columbia's Notice of Discovery Plan and Dispositive Motion Briefing Schedule no later than May 1, 2008. Signed by Judge Rosemary M. Collyer on 4/28/08. (lcrmc2) (Entered: 04/28/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 29 of 45

04/28/2008 04/30/2008
05/01/2008
05/01/2008 05/01/2008 05/01/2008 05/14/2008 05/14/2008 05/15/2008
05/15/2008 05/22/2008
05/22/2008 05/23/2008
05/23/2008

Set/Reset Deadlines/Hearings: Federal Defendants Response due by 5/1/2008. (cdw) (Entered: 04/29/2008)
MINUTE ENTRY ORDER. Plaintiffs shall respond to the District of Columbia's discovery requests no later than May 8, 2008. Upon consideration of the District of Columbia's proposed dispositive motions briefing schedule 170 and the request of the Defendants, it is hereby ordered that the District of Columbia shall file its dispositive motion no later than May 16, 2008; Defendants shall file oppositions no later than June 6, 2008; and the District of Columbia may file its reply no later than June 20, 2008. Signed by Judge Rosemary M. Collyer on 4/30/08. (lcrmc2) (Entered: 04/30/2008)
MINUTE ENTRY ORDER correcting the motion briefing schedule in the Court's April 30, 2008 Minute Entry Order. It is hereby ORDERED that the District of Columbia shall file its dispositive motion no later than May 16, 2008; Federal Defendants and Plaintiffs shall file oppositions no later than June 6, 2008; and the District of Columbia may file its reply no later than June 20, 2008. Signed by Judge Rosemary M. Collyer on 5/1/08. (lcrmc2) (Entered: 05/01/2008)
173 RESPONSE re 170 Notice (Other) RESPONSE TO DCS DISCOVERY PLAN AND DISPOSITIVE BRIEFING SCHEDULE filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Nebeker, William) (Entered: 05/01/2008)
174 Memorandum in opposition to re 167 MOTION Clarification re 158 Memorandum & Opinion filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 05/01/2008)
Set/Reset Deadlines/Hearings: Federal Defendants Dispositive Motion due by 5/16/2008. Response to Dispositive Motions due by 6/6/2008. Reply to Dispositive Motions due by 6/20/2008. (cdw) (Entered: 05/02/2008)
NOTICE of Hearing: A Status Conference is set for 5/23/2008 at 11:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 05/14/2008)
175 Consent MOTION for Extension of Time to File A Dispositive Motion by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) (Entered: 05/14/2008)
MINUTE ENTRY ORDER granting 175 the District of Columbia's Motion for Extension of Time. The District of Columbia shall file its dispositive motion no later than May 23, 2008; Federal Defendants and Plaintiffs shall file oppositions no later than June 13, 2008; and the District of Columbia may file its reply no later than June 27, 2008. No further extensions will be granted. Signed by Judge Rosemary M. Collyer on 5/15/08. (lcrmc2) (Entered: 05/15/2008)
Set/Reset Deadlines/Hearings: D.C.'s Dispositive Motions due by 5/23/2008. Plaintiff's & Federal Defendants Response to Dispositive Motions due by 6/13/2008. D.C.'s Reply to Dispositive Motions due by 6/27/2008. (cdw) (Entered: 05/16/2008)
176 MOTION for Extension of Time to File Response/Reply as to 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service by UNITED STATES MARSHALS SERVICE, TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/22/2008)
177 Memorandum in opposition to re 167 MOTION Clarification re 158 Memorandum & Opinion filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (McDaniel, Oliver) (Entered: 05/22/2008)
MINUTE ENTRY ORDER granting 176 the Federal Defendants' Motion for Extension of Time. Federal Defendants shall file a response to the District of Columbia's Motion for Leave to File a Cross−Claim and Third−Party Complaint no later than May 27, 2008. Signed by Judge Rosemary M. Collyer on 5/23/08. (lcrmc2) (Entered: 05/23/2008)
178 MOTION for Summary Judgment by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A− King Declaration, # 2 Exhibit B− Todd Dillard's Answers to the District's Requests for Admissions, # 3 Exhibit C− Todd Dillard's Answers/Responses to the District's Requests for Production of Documents)(Brownlee Taylor, Leah) (Entered: 05/23/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 30 of 45

05/23/2008 05/28/2008
05/28/2008 05/28/2008 05/29/2008 05/29/2008
05/29/2008 05/29/2008 05/30/2008 05/30/2008 06/02/2008 06/03/2008
06/03/2008 06/10/2008

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 5/23/2008. Oral Argument is set for 7/31/2008 at 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 05/27/2008)
179 Unopposed MOTION for Extension of Time to File Response/Reply as to 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service by UNITED STATES MARSHALS SERVICE, TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/28/2008)
180 NOTICE of Filing Regarding the Powell v. Barrett Decision by GOVERNMENT OF THE DISTRICT OF COLUMBIA re 178 MOTION for Summary Judgment (Brownlee Taylor, Leah) (Entered: 05/28/2008)
181 MOTION for Leave to File an Exhibit Under Seal by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit D− USMS Search Policy)(Brownlee Taylor, Leah) (Entered: 05/28/2008)
MINUTE ENTRY ORDER granting 181 the District of Columbia's Motion for Leave to File Exhibit Under Seal. Signed by Judge Rosemary M. Collyer on 5/29/08. (lcrmc2) (Entered: 05/29/2008)
MINUTE ENTRY ORDER. For the umpteenth time in this hoary case, the parties agreed to a schedule for briefs and each, in turn, has pled the need for more time. Counsel: be warned. Extensions will be severely disfavored as this case proceeds. The extension to June 12, 2008, sought by Federal Defendants to oppose the District of Columbia's Motion for Leave to File a Cross Claim and Third Party Complaint is granted. Further extensions will not be granted to either party. Signed by Judge Rosemary M. Collyer on 5/29/08. (lcrmc2) (Entered: 05/29/2008)
Set/Reset Deadlines: Response by the Federal Defendants due by 6/12/2008. (cdw) (Entered: 05/29/2008)
EXHIBIT D of 178 Motion for Summary Judgment by GOVERNMENT OF THE DISTRICT OF COLUMBIA.(tg, ) (FILED UNDER SEAL pursuant to Order entered 5/29/2008). (Entered: 05/30/2008)
182 ENTERED IN ERROR.....REPLY to opposition to motion re 167 MOTION Clarification re 158 Memorandum & Opinion filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Brownlee Taylor, Leah) Modified on 6/2/2008 (tg, ). (Entered: 05/30/2008)
183 REPLY to opposition to motion re 167 MOTION Clarification re 158 Memorandum & Opinion filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Brownlee Taylor, Leah) (Entered: 05/30/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re 182 Reply to opposition to Motion was entered in error at the request of counsel. Counsel refiled said pleading under docket entry number 183 . (tg, ) (Entered: 06/02/2008)
184 ORDER. Discovery, pursuant to the parties' proposals, shall be completed no later than September 2, 2008. The District of Columbia filed its Motion for Summary Judgment 178 on May 23, 2008; Plaintiffs and the Federal Defendants shall file oppositions no later than July 1, 2008; the District of Columbia shall file its reply no later than July 15, 2008; a hearing on the motion is set for 10:00 a.m. on July 31, 2008. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 6/3/08. (lcrmc2) (Entered: 06/03/2008)
Set/Reset Deadlines/Hearings: Discovery closes 9/2/2008. Response to Motion for Summary Judgment due by 7/1/2008. Reply to Motion for Summary Judgment due by 7/15/2008. Motion Hearing set for 7/31/2008 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 06/04/2008)
185 NOTICE of Errata by GOVERNMENT OF THE DISTRICT OF COLUMBIA re 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service (Attachments: # 1 Exhibit Third Party Complaint Against the US)(Brownlee Taylor, Leah) (Entered:

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 31 of 45

06/12/2008
06/16/2008 06/16/2008 06/19/2008 06/23/2008 06/23/2008 06/23/2008 06/23/2008 06/25/2008 06/26/2008 06/26/2008 07/01/2008

06/10/2008)
186 Memorandum in opposition to re 179 Unopposed MOTION for Extension of Time to File Response/Reply as to 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals ServiceUnopposed MOTION for Extension of Time to File Response/Reply as to 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/12/2008)
MINUTE ENTRY ORDER. Plaintiffs are directed to file a response to the Federal Government's Response to the District of Columbia's Motion for Clarification 177 no later than June 23, 2008. Signed by Judge Rosemary M. Collyer on 6/16/08. (lcrmc2) (Entered: 06/16/2008)
Set/Reset Deadlines/Hearings: Response to 177 due by 6/23/2008. (cdw) (Entered: 06/16/2008)
187 REPLY to opposition to motion re 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Brownlee Taylor, Leah) (Entered: 06/19/2008)
188 Consent MOTION to Amend/Correct 178 MOTION for Summary Judgment − Amended Statement of Material Facts Not in Dispute by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A− Amended Statement of Facts, # 2 Exhibit B− Redacted Deposition Testimony)(Brownlee Taylor, Leah) (Entered: 06/23/2008)
MINUTE ENTRY ORDER granting 188 Consent Motion to Amend/Correct Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 6/23/08. (lcrmc2) (Entered: 06/23/2008)
189 Memorandum in opposition to re 168 MOTION for Leave to File a Cross Claim Against Todd Dillard, Individually and Third Party Complaint Against the United States Marshals Service filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 06/23/2008)
190 AMENDED STATEMENT OF MATERIAL FACTS NOT IN DISPUTE re 178 MOTION for Summary Judgment filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit B − Redacted Deposition Testimony)(tg, ) (Entered: 06/24/2008)
191 Consent MOTION for Extension of Time to file response to federal defendants response to District's motion to clarify by DIANNA JOHNSON (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 06/25/2008)
MINUTE ENTRY ORDER granting 191 Plaintiffs' Consent Motion for Extension of Time. Plaintiffs shall file a response to the Federal Government's Response to the District of Columbia's Motion for Clarification no later than June 26, 2008. Signed by Judge Rosemary M. Collyer on 6/26/08. (lcrmc2) (Entered: 06/26/2008)
192 RESPONSE TO ORDER OF THE COURT re Order, plaintiffs' response to federal defendants' response to district's motion for clarification of certification order filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 06/26/2008)
MINUTE ORDER. Pursuant to a telephone conference on July 1, 2008, Plaintiffs' request for an extension of time is granted. No later than August 4, 2008, Plaintiffs shall file a response to 178 the District of Columbia's motion for summary judgment. No later than August 29, 2008, the District of Columbia may file a reply. No later than August 29, 2008, the Federal Defendants may file a brief regarding 178 the District of Columbia's motion for summary judgment and the Plaintiffs' response thereto. The July 31, 2008 hearing on the District of Columbia's motion for summary judgment is cancelled and rescheduled for September 18, 2008 at 2:00 p.m. Further, a telephone conference is scheduled for July 18, 2008 at 9:15 a.m. Signed by Judge Rosemary M. Collyer on 7/1/08. (KD) (Entered: 07/01/2008)

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07/01/2008 07/01/2008 07/18/2008 07/24/2008 07/29/2008 07/31/2008
07/31/2008 08/07/2008 08/07/2008 08/12/2008
08/12/2008 08/14/2008

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 7/1/2008. (cdw) (Entered: 07/08/2008)
Set/Reset Deadlines/Hearings: Federal Defendant's Brief due by 8/29/2008. Response to 178 due by 8/4/2008. Reply to 178 due by 8/29/2008. Motion Hearing reset for 9/18/2008 02:00 PM in Courtroom 2 before Judge Rosemary M. Collyer. Telephone Conference set for 7/18/2008 09:15 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 07/08/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 7/18/2008. A further Telephone Conference is set for 7/24/2008 at 9:00 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 07/23/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 7/24/2008. A further Telephone Conference is set for 7/31/2008 at 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 07/25/2008)
NOTICE of Hearing: The time of the Telephone Conference set for 7/31/2008 has been changed to 11:30 AM before Judge Rosemary M. Collyer. Please make note of the change.(cdw) (Entered: 07/29/2008)
MINUTE ENTRY ORDER. Pursuant to the telephone conference held on July 31, 2008, discovery shall be completed no later than November 3, 2008. The briefing schedule is amended as follows: No later than August 7, 2008, Plaintiffs shall file a response to 178 the District of Columbia's motion for summary judgment; no later than September 4, 2008, the District of Columbia may file a reply; no later than September 4, 2008, the Federal Defendants may file a brief regarding 178 the District of Columbia's motion for summary judgment and the Plaintiffs' response thereto. The September 18, 2008 hearing on the motion remains unchanged. A further telephone conference is scheduled for 1:45 p.m. on August 8, 2008. Signed by Judge Rosemary M. Collyer on 7/31/08. (lcrmc2) (Entered: 07/31/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 7/31/2008. (cdw) (Entered: 08/01/2008)
MINUTE ENTRY ORDER. Plaintiffs shall file a response to 178 the District of Columbia's motion for summary judgment no later than August 10, 2008. Signed by Judge Rosemary M. Collyer on 8/7/08. (lcrmc2) (Entered: 08/07/2008)
Set/Reset Deadlines: Plaintiff's response to 178 due by 8/10/2008. (cdw) (Entered: 08/08/2008)
MINUTE ENTRY ORDER. The briefing schedule is amended as follows: No later than August 15, 2008, Plaintiffs shall file a response to 178 the District of Columbia's motion for summary judgment; no later than September 9, 2008, the District of Columbia may file a reply; no later than September 9, 2008, the Federal Defendants may file a brief regarding 178 the District of Columbia's motion for summary judgment and Plaintiffs' response thereto. The September 18, 2008 hearing on the motion remains unchanged. A further telephone conference is scheduled for August 21, 2008 at 9:30 a.m. Signed by Judge Rosemary M. Collyer on 8/12/08. (lcrmc2) (Entered: 08/12/2008)
Set/Reset Deadlines/Hearings: Plaintiff's Response to 178 Motion for Summary Judgment due by 8/15/2008. District of Columbia's Reply to 178 Motion for Summary Judgment due by 9/9/2008. Federal Defendants Brief due by 9/9/2008. (cdw) (Entered: 08/13/2008)
193 STRICKEN pursuant to order entered 9/16/2008.....ENTERED IN ERROR.....Memorandum in opposition to re 178 MOTION for Summary Judgment on legal issues filed by DIANNA JOHNSON. (Attachments: # 1 Statement of Facts plaintiffs' objection −responses to defendants statement of facts, # 2 Statement of Facts Plaintiffs' list of legal issues ripe for resolution, # 3 Exhibit former MPD general orders PE # 27, # 4 Exhibit current MPD general orders, # 5 Exhibit MPD special orders on Morgan Order PE# 29, # 6 Exhibit Smith deposition day 1 PE# 30, # 7 Exhibit Smith deposition day 2 PE# 31, # 8 Exhibit Report of chief of police to Mayor on IMF protests PE# 33)(Claiborne, William) Modified on 8/15/2008 (td, ). Modified on 9/17/2008 (tg, ). (Entered: 08/14/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 33 of 45

08/14/2008 08/15/2008
08/28/2008 08/29/2008
08/29/2008
08/29/2008 08/29/2008 09/15/2008 09/16/2008

NOTICE OF CORRECTED DOCKET ENTRY: re 193 Memorandum in Opposition,, was entered in error per counsel and counsel will refile.(td, ) (Entered: 08/15/2008)
194 STRICKEN pursuant to order entered 9/16/2008.....Memorandum in opposition to re 178 MOTION for Summary Judgment filed by DIANNA JOHNSON. (Attachments: # 1 Appendix plaintiffs' objections to dfs' statement of facts, # 2 Appendix plaintiffs' list of legal issues ready for resolution, # 3 Exhibit Ex #27 MPD general orders (superseded), # 4 Exhibit PE # 28 MPD general orders current, # 5 Exhibit PE # 29 MPD special order on Morgan Order, # 6 Exhibit PE # 30 Smith depo day 1, # 7 Exhibit PE # 31 Smith depo day 2, # 8 Exhibit Notice PE # 32 filed under seal, # 9 Exhibit PE # 33 IMF Report, # 10 Exhibit Notice PE # 34 filed under seal)(Claiborne, William) Modified on 9/17/2008 (tg, ). (Entered: 08/15/2008)
NOTICE of Hearing: A Telephone Conference is set for 8/29/2008 at 11:30 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 08/28/2008)
MINUTE ENTRY ORDER. In light of the telephone conference held on August 29, 2008, the briefing schedule is amended as follows: No later than September 19, 2008, the District of Columbia shall file a reply in support of its motion for summary judgment; no later than September 19, 2008, the Federal Defendants may file a brief regarding the District of Columbia's motion for summary judgment and Plaintiffs' response thereto; and no later than September 26, 2008, Plaintiffs may file a response to the Federal Defendants' filing. The September 18, 2008 hearing on the motion is hereby VACATED and rescheduled for 10:00 a.m. on September 29, 2008. A further telephone conference is scheduled for September 18, 2008 at 10:00 a.m. Signed by Judge Rosemary M. Collyer on 8/29/08. (lcrmc2) (Entered: 08/29/2008)
195 Memorandum in opposition to re 178 MOTION for Summary Judgment as reformatted filed by DIANNA JOHNSON. (Attachments: # 1 objection to District's statement of material facts, # 2 plaintiffs' statement of legal issues ripe for resolution, # 3 Exhibit Ex #27 superseded MPD general orders, # 4 Exhibit Ex #28 current MPD general orders, # 5 Exhibit Ex #29 MPD special order re Morgan Order, # 6 Exhibit Ex #30 excerpt of Smith depo transcript, # 7 Exhibit Ex #31 excerpt of Smith depo transcript, # 8 Exhibit Ex #32 excerpt of Marshal Dillard's interrogatory responses, # 9 Exhibit IMF protest report to mayor, # 10 Exhibit Ex # 34 excerpt from Marshals Dillard's responses to RFA, # 11 Exhibit redlined copy of opposition showing changes from previously filed opposition (document # 194), # 12 Text of Proposed Order)(Claiborne, William) (Entered: 08/29/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/29/2008. (cdw) (Entered: 09/02/2008)
Set/Reset Deadlines/Hearings: DC's reply to Motion for Summary Judgment due by 9/19/2008. Federal Defendant's Brief due by 9/19/2008. Plaintiff's response due by 9/26/2008. Telephone Conference set for 9/18/2008 10:00 AM in Chambers before Judge Rosemary M. Collyer. Motion Hearing set for 9/29/2008 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 09/02/2008)
196 MOTION for Order for leave to file amended objections to amended statement of facts by DIANNA JOHNSON (Attachments: # 1 Exhibit amended objection to amended statement of facts, # 2 Exhibit track changes of amended objection to amended statement of facts)(Claiborne, William) (Entered: 09/15/2008)
MINUTE ENTRY ORDER granting 196 Plaintiffs' Motion for Leave to File Amended Objections. Pursuant to the telephone conference held on September 16, 2008, Plaintiffs' previous filings 193 194 shall be STRICKEN from the record. It is FURTHER ORDERED that the briefing schedule is amended as follows: no later than September 24, 2008, the District of Columbia shall file a reply in support of its motion for summary judgment; no later than September 24, 2008, the Federal Defendants may file a brief regarding the District of Columbia's motion for summary judgment; and no later than September 29, 2008, Plaintiffs may file a response to the Federal Defendants' filing. The September 29, 2008 hearing on the motion is hereby VACATED and rescheduled for 9:30 a.m. on October 7, 2008. A further telephone conference is scheduled for September 18, 2008 at 10:00 a.m. Signed by Judge Rosemary M. Collyer on 9/16/08. (lcrmc2) (Entered: 09/16/2008)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 34 of 45

09/16/2008 09/16/2008
09/18/2008
09/18/2008 09/18/2008 09/24/2008 09/24/2008 09/29/2008 10/07/2008 10/15/2008 10/20/2008 10/31/2008 10/31/2008 11/04/2008 11/18/2008 11/26/2008

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 9/16/2008. (cdw) (Entered: 09/17/2008)
Set/Reset Deadlines/Hearings: DC's Reply to the Motion for Summary Judgment due by 9/24/2008. Federal Defendant's Brief due by 9/24/2008. Plaintiff's Response due by 9/29/2008 Motion Hearing set for 10/7/2008 09:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. Telephone Conference set for 9/18/2008 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 09/17/2008)
MINUTE ENTRY ORDER. Pursuant to the telephone conference held on September 18, 2008, discovery shall be completed no later than February 27, 2009. Plaintiffs shall file a brief no later than October 14, 2008 regarding the scope of the attorney−client privilege for questioning deponents in light of the cessation of the search policy; Defendants shall file oppositions no later than November 4, 2008; and Plaintiffs may file a reply no later than November 18, 2008. Signed by Judge Rosemary M. Collyer on 9/18/08. (lcrmc2) (Entered: 09/18/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 9/18/2008. (cdw) (Entered: 09/18/2008)
Set/Reset Deadlines/Hearings: Discovery closes 2/27/2009. Plaintiff's Brief due by 10/14/2008. Defendant's Response due by 11/4/2008. Plaintiff's Reply due by 11/18/2008. (cdw) (Entered: 09/19/2008)
197 REPLY to opposition to motion re 178 MOTION for Summary Judgment filed by GOVERNMENT OF THE DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A− House Reports, # 2 Exhibit Exhibit B− District's Legal Issues Ripe for Resolution)(Brownlee Taylor, Leah) (Entered: 09/24/2008)
198 MEMORANDUM filed by TODD DILLARD re 178 MOTION for Summary Judgment . (McDaniel, Oliver) Modified to edit party filer on 9/25/2008 (tg, ). (Entered: 09/24/2008)
199 RESPONSE to 198 federal defendants amicus brief re: 178 MOTION for Summary Judgment filed by DIANNA JOHNSON. (Attachments: # 1 Exhibit Marshal Dillard depo, # 2 Exhibit Barry Surles depo)(Claiborne, William) Modified to correct linkages on 9/30/2008 (tg, ). (Entered: 09/29/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 10/7/2008. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 10/09/2008)
200 MOTION to Vacate 184 Order,, by DIANNA JOHNSON (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/15/2008)
201 NOTICE OF SUPPLEMENTAL AUTHORITY by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Legislative record− Senate report)(Brownlee Taylor, Leah) (Entered: 10/20/2008)
202 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 10/31/08. (lcrmc2) (Entered: 10/31/2008)
203 ORDER granting 178 the District of Columbia's Motion for Summary Judgment and dismissing the District of Columbia as a party in this case. In light of this Order, the Plaintiffs' Motion to Vacate 200 is denied as moot. Signed by Judge Rosemary M. Collyer on 10/31/08. (lcrmc2) (Entered: 10/31/2008)
204 Memorandum in opposition to re 200 MOTION to Vacate 184 Order,, filed by UNITED STATES MARSHALS SERVICE, TODD DILLARD. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/04/2008)
205 REPLY to opposition to motion re 200 MOTION to Vacate 184 Order,, filed by DIANNA JOHNSON. (Claiborne, William) (Entered: 11/18/2008)
MINUTE ORDER. A Status Conference is scheduled for December 16, 2008 at 10:15 a.m. Advised that the parties may be having discovery difficulties in this difficult case, the Court directs Plaintiffs' counsel to write a letter to counsel for Federal Defendants detailing his concerns and Federal Defendants' counsel to respond in writing in similar detail. The parties should bring the correspondence to the December 16, 2008 Status

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 35 of 45

12/15/2008 12/16/2008
12/16/2008
12/16/2008 12/16/2008 01/07/2009 01/07/2009 01/26/2009 01/27/2009 01/27/2009 02/04/2009 02/06/2009
02/06/2009 02/09/2009

Conference. Signed by Judge Rosemary M. Collyer on 11/26/08. (lcrmc2) (Entered: 11/26/2008)
206 NOTICE OF WITHDRAWAL OF APPEARANCE as to TODD DILLARD. Attorney Oliver W. McDaniel terminated. (McDaniel, Oliver) (Entered: 12/15/2008)
MINUTE ORDER denying as moot 167 District of Columbia's motion for clarification and 168 District of Columbia's motion for leave to file cross claim. See 202 Memorandum Opinion and 203 Order dismissing the District of Columbia as a Defendant in this case. Signed by Judge Rosemary M. Collyer on 12/16/08. (lcrmc2) (Entered: 12/16/2008)
MINUTE ORDER. Pursuant to the status conference held in open Court on December 16, 2008, the discovery period is extended up to and including March 31, 2009. Defendant shall respond in writing to Plaintiffs' discovery letter no later than December 22, 2008. Each party shall give each other at least 48 hours' notice of discovery issues it intends to raise at any future status conference. A further status conference is scheduled for January 7, 2009 at 11:00 AM. Signed by Judge Rosemary M. Collyer on 12/16/08. (lcrmc2) (Entered: 12/16/2008)
Set/Reset Deadlines/Hearings: Discovery closes 3/31/2009. Defendant's response due by 12/22/2008. Status Conference set for 1/7/2009 11:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 12/17/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 12/16/2008. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/17/2008)
207 ORDER setting a status conference for January 30, 2009 at 9:00 a.m. and directing the parties to take certain actions prior to that status conference. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 1/7/09. (lcrmc2) (Entered: 01/07/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 1/7/2009. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 01/08/2009)
208 Consent MOTION for Extension of Time to Supplement Interrogatory Response by TODD DILLARD (Meriweather, Robin) (Entered: 01/26/2009)
MINUTE ORDER granting 208 Defendant's Motion for Extension of Time. Defendant Marshal Dillard shall supplement his interrogatory responses no later than January 30, 2009. Signed by Judge Rosemary M. Collyer on 1/27/09. (lcrmc2) (Entered: 01/27/2009)
NOTICE of Hearing: Status Conference reset for 2/6/2009 at 11:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 01/27/2009)
209 STATUS REPORT by TODD DILLARD. (Attachments: # 1 Exhibit)(Nebeker, William) (Entered: 02/04/2009)
MINUTE ORDER. Pursuant to the status conference held in open Court on February 6, 2009, Plaintiffs shall propose changes to the questionnaire [209−2] and decide whether they want it distributed no later than February 20, 2009; Plaintiffs shall supplement their responses to the discovery requests identified in Defendant's December 19, 2008 letter no later than February 27, 2009; Defendant shall supplement his response to Interrogatory 21 by informing Plaintiffs when such persons acquired knowledge and whether they saw an FTCA notice of claim no later than February 27, 2009. A further status conference is scheduled for March 6, 2009 at 2:30 p.m. Signed by Judge Rosemary M. Collyer on 2/6/09. (lcrmc2) (Entered: 02/06/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 2/6/2009. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 02/09/2009)
210 NOTICE regarding Defendants' questionnaire by DIANNA JOHNSON re Order,, (Claiborne, William) (Entered: 02/09/2009)

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02/27/2009
03/18/2009 03/19/2009 03/19/2009 03/19/2009 07/13/2009 07/16/2009
07/16/2009 07/16/2009 07/21/2009 08/12/2009
08/12/2009 10/07/2009
10/09/2009 10/14/2009

MINUTE ORDER. Being advised that the parties need more time to supplement their discovery responses, it is hereby ORDERED that Plaintiffs shall supplement their responses to the discovery requests identified in Defendant's December 19, 2008 letter no later than March 6, 2009, and Defendant shall supplement his response to Interrogatory 21 by informing Plaintiffs when such persons acquired knowledge and whether they saw an FTCA notice of claim no later than March 6, 2009. Signed by Judge Rosemary M. Collyer on 2/27/09. (lcrmc2) (Entered: 02/27/2009)
NOTICE of Hearing: A Status Conference is set for 3/19/2009 at 10:45 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 03/18/2009)
MINUTE ORDER. Pursuant to the status conference held in open Court on March 19, 2009, the discovery period is extended up to and including July 30, 2009. A post discovery status conference is set for July 31, 2009 at 10:00 a.m. Signed by Judge Rosemary M. Collyer on 3/19/09. (lcrmc2) (Entered: 03/19/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 3/19/2009. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 03/19/2009)
Set/Reset Deadlines/Hearings: Discovery closes 7/30/2009. Status Conference set for 7/31/2009 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 03/20/2009)
Set/Reset Hearings: Telephone Conference set for 7/16/2009 02:15 PM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/13/2009)
MINUTE ORDER. Pursuant to the telephone conference held on July 16, 2009, the discovery period is extended up to and including October 30, 2009. The post discovery status conference set for July 31, 2009 is VACATED and will be rescheduled by the Deputy Clerk of Court for a date after October 30, 2009. Signed by Judge Rosemary M. Collyer on 7/16/09. (lcrmc2) (Entered: 07/16/2009)
Set/Reset Deadlines/Hearings: Discovery closes 10/30/2009. (cdw) (Entered: 07/20/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 7/16/2009. (cdw) (Entered: 07/20/2009)
NOTICE of Hearing: A Post−discovery Status Conference is set for 11/4/2009 at 11:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/21/2009)
MINUTE ORDER. Pursuant to the telephone conference held on August 12, 2009, Defendant shall provide Plaintiffs with an affidavit about the factual circumstances of the document production he asserts to have been inadvertent as soon as possible but in any event no later than August 26, 2009; Plaintiffs shall file their brief concerning waiver of attorney−client privilege and scope of the waiver as soon as possible but in any event no later than two weeks from the date they receive Defendant's affidavit; Defendant shall file his responsive brief concerning waiver of attorney−client privilege and scope of the waiver as soon as possible but in any event no later than two weeks from the date Plaintiffs file their brief. There will be no extensions of time. Signed by Judge Rosemary M. Collyer on 8/12/09. (lcrmc2) (Entered: 08/12/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/12/2009. (cdw) (Entered: 08/13/2009)
211 STIPULATION And Proposed Order by TONYA CECELIA MACK, LAURA LAMBERT, DIANNE WILKES, VICKIE BROOKS, KEISHA HOLLOWAY, DONNA CURTIS, DIANNA JOHNSON, TODD DILLARD, RUBBIYA MUHAMMED, CAROLYN MONTGOMERY. (Nebeker, William) (Entered: 10/07/2009)
212 STIPULATION AND ORDER signed by Judge Rosemary M. Collyer on October 7, 2009. (cdw) (Entered: 10/09/2009)
MINUTE ORDER. Pursuant to the Court's Order concerning discovery disputes, Plaintiffs' counsel has requested a telephone conference about depositions of six individuals. To conserve the Court's time and voice after neck surgery, Plaintiffs are

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 37 of 45

10/20/2009
10/20/2009
10/20/2009 10/20/2009 10/20/2009 10/30/2009 11/03/2009 11/04/2009 11/05/2009 11/06/2009 11/17/2009
11/17/2009 11/19/2009
11/19/2009 11/20/2009 11/23/2009

directed to file a short motion (no more than 7 pages) explaining the issue(s) and identifying the potential deponents by more than name. Said motion shall be filed no later than 9:00 a.m. on Friday, October 16, 2009. Defendant may file a response (no more than 7 pages) no later than 12:00 p.m. (noon) on Monday, October 19, 2009. Signed by Judge Rosemary M. Collyer on 10/14/09. (lcrmc2) (Entered: 10/14/2009)
MINUTE ORDER. Pursuant to the telephone conference held on October 20, 2009, the Court will rule on the propriety of the objections to Mr. Auerbach's deposition after it receives the transcript. Discovery is extended to November 20, 2009. The post discovery status conference set for November 4, 2009 is VACATED and will be rescheduled by the Deputy Clerk of Court for a date after November 20, 2009. Signed by Judge Rosemary M. Collyer on 10/20/09. (lcrmc2) (Entered: 10/20/2009)
MINUTE ORDER. Pursuant to the telephone conference held on October 20, 2009, the Court accepts Plaintiffs' counsel's stipulation that named Plaintiffs Laura Lambert and Tonya Mack are unavailable for deposition despite counsel's best efforts to have them appear. Named Plaintiffs Laura Lambert and Tonya Mack are hereby DISMISSED without prejudice for failure to prosecute. Plaintiffs' counsel may add three additional named Plaintiffs to the class. Signed by Judge Rosemary M. Collyer on 10/20/09. (lcrmc2) (Entered: 10/20/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 10/20/2009. (cdw) (Entered: 10/21/2009)
Set/Reset Deadlines/Hearings: Discovery closes 11/20/2009. (cdw) (Entered: 10/21/2009)
NOTICE of Hearing: The Post−discovery Status Conference is reset for 12/1/2009 at 10:15 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 10/21/2009)
213 NOTICE adding three named plaintiffs by DIANNA JOHNSON re Order,, (Claiborne, William) (Entered: 10/30/2009)
214 NOTICE of Appearance by Jennifer M. Olkiewicz on behalf of TODD DILLARD (Olkiewicz, Jennifer) (Entered: 11/03/2009)
215 SUGGESTION OF DEATH Upon the Record as to Dianna Johnson and Carolyn Montgomery by TODD DILLARD. (Nebeker, William) (Entered: 11/04/2009)
Set/Reset Hearings: Telephone Conference set for 11/6/2009 at 11:15 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 11/05/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/6/2009. (cdw) (Entered: 11/12/2009)
MINUTE ORDER. Pursuant to the telephone conference held on November 17, 2009, the Court GRANTS Defendant's oral motion to dismiss named Plaintiff Sheryl Rutledge without prejudice for failure to prosecute. Signed by Judge Rosemary M. Collyer on 11/17/09. (lcrmc2) (Entered: 11/17/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/17/2009. (cdw) (Entered: 11/17/2009)
216 MOTION for Leave to File Third Amended Complaint by SANDRA CLYBURN (Attachments: # 1 Exhibit third amended complaint, # 2 Exhibit redlined third amended complaint, # 3 Text of Proposed Order)(Claiborne, William) Modified on 11/20/2009 to correct the event (rdj). (Entered: 11/19/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/19/2009. (cdw) (Entered: 11/20/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/20/2009. (cdw) (Entered: 11/20/2009)
217 NOTICE of Filing by TODD DILLARD (Attachments: # 1 Declaration of AUSA Diane Sullivan)(Olkiewicz, Jennifer) (Entered: 11/23/2009)

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 38 of 45

11/24/2009 12/01/2009
12/01/2009
12/01/2009 12/03/2009 12/04/2009 12/17/2009 12/29/2009 12/30/2009 12/30/2009 12/30/2009 01/08/2010 01/11/2010 01/11/2010 01/12/2010 01/14/2010

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 11/24/2009. (cdw) (Entered: 11/24/2009)
MINUTE ORDER. Pursuant to the status conference held in open Court on December 1, 2009, it is hereby ORDERED that dispositive motions shall be filed no later than April 5, 2010, responses shall be filed no later than May 20, 2010, and replies shall be filed no later than June 21, 2010. No extensions will be granted. Oral argument on the motions is scheduled for September 9, 2010 at 10:00 a.m. It is further ORDERED that Plaintiffs shall file their class certification motions no later than July 30, 2010, Defendant shall file his responses no later than September 15, 2010, and Plaintiffs shall file their replies no later than October 15, 2010. Signed by Judge Rosemary M. Collyer on 12/1/09. (lcrmc2) (Entered: 12/01/2009)
Set/Reset Deadlines/Hearings: Dispositive Motions due by 4/5/2010. Response to Dispositive Motions due by 5/20/2010. Reply to Dispositive Motions due by 6/21/2010. Class Certification Motions due by 7/30/2010. Responses due by 9/15/2010. Reply due by 10/15/2010. Motion Hearing set for 9/9/2010 at 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 12/02/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 12/1/2009. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/03/2009)
218 Consent MOTION for Extension of Time to Respond to Plaintiffs' Motion for Leave by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Olkiewicz, Jennifer) (Entered: 12/03/2009)
MINUTE ORDER granting nunc pro tunc to December 3, 2009 218 Defendant's Consent Motion for Extension of Time. Defendant shall file his response to Plaintiffs' motion for leave to file a Third Amended Complaint no later than December 17, 2009. Signed by Judge Rosemary M. Collyer on 12/4/09. (lcrmc2) (Entered: 12/04/2009)
219 Memorandum in opposition to re 216 MOTION for Leave to File Third Amended Complaint filed by TODD DILLARD. (Olkiewicz, Jennifer) (Entered: 12/17/2009)
220 Consent MOTION for Extension of Time to File Response/Reply opposition to amend complaint by SANDRA CLYBURN (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 12/29/2009)
MINUTE ORDER granting nunc pro tunc to December 28, 2009 220 Plaintiffs' Consent Motion for Extension of Time. Plaintiffs shall file their reply no later than January 11, 2010. Signed by Judge Rosemary M. Collyer on 12/30/09. (lcrmc2) (Entered: 12/30/2009)
221 NOTICE of Filing by GOVERNMENT OF THE DISTRICT OF COLUMBIA re 216 MOTION for Leave to File (Brownlee Taylor, Leah) (Entered: 12/30/2009)
Set/Reset Deadlines/Hearings: Plaintiff's reply due by 1/11/2010. (cdw) (Entered: 12/31/2009)
222 MOTION to Intervene by GOVERNMENT OF THE DISTRICT OF COLUMBIA (Brownlee Taylor, Leah) (Entered: 01/08/2010)
223 ORDER denying without prejudice 222 the District of Columbia's Motion to Intervene. Signed by Judge Rosemary M. Collyer on 1/11/10. (lcrmc2) (Entered: 01/11/2010)
224 REPLY to opposition to motion re 216 MOTION for Leave to File amended complaint filed by RUBBIYA MUHAMMED. (Attachments: # 1 Exhibit Df Dillard depo excerpt)(Claiborne, William) (Entered: 01/11/2010)
225 NOTICE OF WITHDRAWAL OF APPEARANCE as to GOVERNMENT OF THE DISTRICT OF COLUMBIA. Attorney Denise J. Baker terminated. (Baker, Denise) (Entered: 01/12/2010)
226 ORDER denying 216 Plaintiffs' Motion for Leave to File Third Amended Complaint. Signed by Judge Rosemary M. Collyer on 1/14/10. (lcrmc2) (Entered: 01/14/2010)

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01/31/2010 02/12/2010 02/16/2010 02/16/2010 02/23/2010 03/05/2010 03/29/2010 04/05/2010
04/05/2010
04/06/2010 04/06/2010 04/06/2010

227 MOTION to Compel Responses by DIANNA JOHNSON (Attachments: # 1 Exhibit Helton FTCA notice, # 2 Exhibit Helton complaint, # 3 Text of Proposed Order)(Claiborne, William) (Entered: 01/31/2010)
228 Consent MOTION for Extension of Time to Respond to Plaintiffs' Motion to Compel by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Olkiewicz, Jennifer) (Entered: 02/12/2010)
MINUTE ORDER granting 228 Defendant's Motion for Extension of Time. Defendant shall file his response to Plaintiffs' motion to compel no later than February 23, 2010. Signed by Judge Rosemary M. Collyer on 2/16/10. (lcrmc2) (Entered: 02/16/2010)
Set/Reset Deadlines: Response to Motion to Compel due by 2/23/2010. (cdw) (Entered: 02/18/2010)
229 Memorandum in opposition to re 227 MOTION to Compel Responses filed by TODD DILLARD. (Attachments: # 1 Exhibits A − F)(Olkiewicz, Jennifer) (Entered: 02/23/2010)
230 REPLY to opposition to motion re 227 MOTION to Compel Responses filed by VICKIE BROOKS. (Claiborne, William) (Entered: 03/05/2010)
231 ORDER granting in part and denying in part 227 Plaintiffs' Motion to Compel. Signed by Judge Rosemary M. Collyer on 3/29/10. (lcrmc2) (Entered: 03/29/2010)
232 MOTION for Judgment on the Pleadings , Or In The Alternative, MOTION for Summary Judgment And, MOTION to Dismiss for Lack of Prosecution by TODD DILLARD (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Policy Directive 99−25, # 3 Exhibit Field Reports, # 4 Exhibit Photograph accompanying How Gun Ended Up In Court Still A Mystery, # 5 Exhibit 12/29/98 Letter to Chief Ramsey, # 6 Exhibit Def. Supplemental Response to Interrogatory 18 at Ex. C, # 7 Exhibit October 6, 2008 Dillard Declaration, # 8 Exhibit Email from Plaintiff Counsel dated November 17, 2009, # 9 Exhibit Notices of Deposition, # 10 Exhibit November 17, 2009 e−mail chain)(Nebeker, William) (Entered: 04/05/2010)
233 MOTION for Partial Summary Judgment by SANDRA CLYBURN (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit van sheet, # 4 Exhibit Kriegler decl, # 5 Exhibit Kriegler decl A, # 6 Exhibit Kriegler decl B, # 7 Exhibit Kriegler decl C, # 8 Exhibit Kriegler decl D, # 9 Exhibit Kriegler decl E, # 10 Exhibit Kriegler decl F, # 11 Exhibit Kriegler decl G, # 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, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Errata, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit, # 49 Exhibit, # 50 Exhibit, # 51 Exhibit, # 52 Exhibit, # 53 Exhibit, # 54 Exhibit, # 55 Exhibit, # 56 Exhibit, # 57 Exhibit, # 58 Exhibit, # 59 Exhibit, # 60 Exhibit, # 61 Exhibit, # 62 Exhibit, # 63 Exhibit, # 64 Exhibit, # 65 Exhibit, # 66 Exhibit, # 67 Exhibit, # 68 Exhibit, # 69 Exhibit, # 70 Exhibit, # 71 Exhibit, # 72 Exhibit, # 73 Exhibit, # 74 Exhibit, # 75 Exhibit, # 76 Exhibit, # 77 Exhibit, # 78 Exhibit, # 79 Exhibit, # 80 Exhibit, # 81 Exhibit, # 82 Exhibit, # 83 Exhibit, # 84 Exhibit, # 85 Errata, # 86 Exhibit, # 87 Exhibit, # 88 Exhibit, # 89 Exhibit, # 90 Exhibit, # 91 Exhibit, # 92 Exhibit, # 93 Exhibit, # 94 Exhibit, # 95 Exhibit, # 96 Exhibit, # 97 Exhibit, # 98 Exhibit)(Claiborne, William) (Entered: 04/05/2010)
234 NOTICE filing certain exhibits to plaintiffs' motion for partial summary judgment under seal by SANDRA CLYBURN re 233 MOTION for Partial Summary Judgment (Claiborne, William) (Entered: 04/06/2010)
235 NOTICE notice filing certain exhibits in support of motion partial summary judgment under seal by SANDRA CLYBURN re 233 MOTION for Partial Summary Judgment (Claiborne, William) (Entered: 04/06/2010)
237 SEALED Exhibits re 233 filed by SANDRA CLYBURN. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 205−1, # 2 Exhibit 302, # 3 Exhibit 401, # 4 Exhibit 402, # 5 Exhibit 404, # 6 Exhibit 410, # 7 Exhibit 504−1, # 8 Exhibit 524, # 9 Exhibit 528−6(zrdj) Modified on 4/9/2010 to

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 40 of 45

04/06/2010 04/06/2010 04/08/2010 04/12/2010
04/23/2010 05/20/2010

reflect exhibit number ONLY(zrdj). (Entered: 04/09/2010)
238 SEALED Exhibits re 233 filed by SANDRA CLYBURN. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 540, # 2 Exhibit 548, # 3 Exhibit 549a, # 4 Exhibit 549b, # 5 Exhibit 550, # 6 Exhibit 552−1, # 7 Exhibit 554)(zrdj) (Entered: 04/09/2010)
239 SEALED Exhibits re 233 filed by SANDRA CLYBURN. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 560, # 2 Exhibit 561, # 3 Exhibit 570, # 4 Exhibit 571, # 5 Exhibit 572, # 6 Exhibit 573, # 7 Exhibit List)(zrdj) (Entered: 04/09/2010)
236 RESPONSE TO ORDER OF THE COURT re 231 Order on Motion to Compel by TODD DILLARD (Attachments: # 1 Declaration)(Nebeker, William) Modified on 4/9/2010 to correct event (rdj). (Entered: 04/08/2010)
240 NOTICE of Filing Deposition Excerpts by TODD DILLARD re 232 MOTION for Judgment on the Pleadings , Or In The Alternative MOTION for Summary Judgment And MOTION to Dismiss for Lack of Prosecution (Attachments: # 1 Alandydy Deposition Excerpts, # 2 Brandt Deposition Excerpts, # 3 Briggs Deposition Excerpts, # 4 Brooks Deposition Excerpts, # 5 Bryce Deposition Excerpts, # 6 Clyburn Deposition Excerpts, # 7 Culver Deposition Excerpts, # 8 Dillard Deposition Excerpts (from Bame v. Clark), # 9 Dillard Deposition Excerpts, # 10 Eversman Deposition Excerpts, # 11 Hargrove Deposition Excerpts, # 12 Hariston Deposition Excerpts, # 13 Harris Deposition Excerpts, # 14 Hedgepeth (July 17, 2008) Deposition Excerpts, # 15 Hedgepeth (July 18, 2008) Deposition Excerpts, # 16 Muhammad Deposition Excerpts, # 17 Murphy Deposition Excerpts, # 18 Petchel Deposition Excerpts, # 19 Rowe Deposition Excerpts, # 20 Julie Shealey Deposition Excerpts, # 21 Mark Shealey Deposition Excerpts, # 22 James−Smith Deposition Excerpts, # 23 Holloway Summers Deposition Excerpts, # 24 Teeter Deposition Excerpts, # 25 Wilkes Deposition Excerpts)(Nebeker, William) (Entered: 04/12/2010)
NOTICE of Hearing: Motion Hearing reset for 9/24/2010 at 10:00 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 04/23/2010)
241 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer held on 12/01/09; Page Numbers: 1−14. Date of Issuance:04/02/10. Court Reporter/Transcriber Crystal M. Pilgrim, Telephone number 202.354.3127, Court Reporter Email Address : crystal_pilgrim@dcd.uscourts.gov.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

05/20/2010 05/20/2010

Redaction Request due 6/10/2010. Redacted Transcript Deadline set for 6/21/2010. Release of Transcript Restriction set for 8/18/2010.(Pilgrim, Crystal) (Entered: 05/20/2010)
242 Memorandum in opposition to re 233 MOTION for Partial Summary Judgment filed by TODD DILLARD. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Defendant Todd Dillards Corrected Supplemental Responses To Interrogatories 11, 12, 21 From Plaintiffs Second Set Of Interrogatories (Exhibit 10), # 3 Exhibit March 31, 2009 Letter To Wm. Claiborne, # 4 Exhibit Plaintiffs' Responses to "Federal Defendants' First Discovery Requests" (Supplemental))(Nebeker, William) (Entered: 05/20/2010)
243 Memorandum in opposition to re 232 MOTION for Judgment on the Pleadings , Or In The Alternative MOTION for Summary Judgment And MOTION to Dismiss for Lack of Prosecution filed by SANDRA CLYBURN. (Attachments: # 1 Statement of Facts

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 41 of 45

05/21/2010 05/24/2010 05/24/2010
05/24/2010 05/27/2010
06/21/2010 06/21/2010 06/21/2010 06/22/2010 06/24/2010
06/25/2010

opposition to dfs' statement facts)(Claiborne, William) (Entered: 05/20/2010)
244 Memorandum in opposition to re 232 MOTION for Judgment on the Pleadings , Or In The Alternative MOTION for Summary Judgment And MOTION to Dismiss for Lack of Prosecution filed by SANDRA CLYBURN. (Claiborne, William) (Entered: 05/21/2010)
245 NOTICE filing under seal documents in support of #243 by SANDRA CLYBURN re 243 Memorandum in Opposition, (Claiborne, William) (Entered: 05/24/2010)
246 NOTICE plaintiffs Opposition To Defendants Motion for Judgment on the Pleadings, or in the Alternative Motion For Summary Judgment and to Dismiss filed May 20, 2010 (docket # 243) by SANDRA CLYBURN re 243 Memorandum in Opposition, (Attachments: # 1 Exhibit exhibit list, # 2 Exhibit #701 Helton FTCA notice, # 3 Exhibit #708 Clifton FTCA Notice, # 4 Exhibit #709 acknowledgement of receipt, # 5 Exhibit #713 Helton complaint, # 6 Exhibit #714 service of Helton complaint on USMS, # 7 Exhibit #725 2003 report on disord conduct, # 8 Exhibit #800 ast docpro to fds, # 9 Exhibit #801 fds resp to 1st docpro, # 10 Exhibit #804 ds ex 2 with page numbers)(Claiborne, William) (Entered: 05/24/2010)
247 SEALED documents in support of #243 filed by SANDRA CLYBURN. (This document is SEALED and only available to authorized persons.)(part 1 of 4) (Attachments: # 1 part 2 of 4, # 2 part 3 of 4, # 3 part 4 of 4)(zrdj) (Entered: 05/25/2010)
248 NOTICE of Filing Deposition Excerpts by TODD DILLARD re 242 Memorandum in Opposition, (Attachments: # 1 Bayha Deposition Excerpts, # 2 Bertrand Deposition Excerpts, # 3 Brandt Deposition Excerpts, # 4 Bryce Deposition Excerpts, # 5 Cotton Deposition Excerpts, # 6 Culver Deposition Excerpts, # 7 Dillard (Bame) Deposition Excerpts, # 8 Dillard Deposition Excerpts, # 9 Foley Deposition Excerpts, # 10 Hedgepeth (July 18, 2007) Deposition Excerpts, # 11 Horton Deposition Excerpts, # 12 Jeanmarie Deposition Excerpts, # 13 Mitchell Deposition Excerpts, # 14 Murphy Deposition Excerpts, # 15 Rowe (Bame) Deposition Excerpts, # 16 Seifert Deposition Excerpts, # 17 Shealey, Julie Deposition Excerpts, # 18 Shealey, Mark Deposition Excerpts, # 19 Stover Deposition Excerpts, # 20 Teeter Deposition Excerpts, # 21 Wilkes Deposition Excerpts, # 22 Zitsch Deposition Excerpts)(Nebeker, William) (Entered: 05/27/2010)
249 MOTION for Leave to File Excess Pages In Summary Judgment Reply Memorandum by TODD DILLARD (Meriweather, Robin) (Entered: 06/21/2010)
250 REPLY to opposition to motion re 232 MOTION for Judgment on the Pleadings , Or In The Alternative MOTION for Summary Judgment And MOTION to Dismiss for Lack of Prosecution filed by TODD DILLARD. (Attachments: # 1 Exhibit 13(arrest data), # 2 Exhibit 14(Alandydy Decl.), # 3 Exhibit 15 (Shealey Decl.), # 4 Exhibit 16 (discovery), # 5 Exhibit 17 (Sullifan Decl.))(Meriweather, Robin) (Entered: 06/21/2010)
251 REPLY to opposition to motion re 233 MOTION for Partial Summary Judgment filed by SANDRA CLYBURN. (Attachments: # 1 Exhibit Helton rog responses, # 2 Exhibit Clifton rog responses, # 3 Exhibit Kriegler report, # 4 Exhibit Berk report, # 5 Exhibit CJIS−CIS letter)(Claiborne, William) (Entered: 06/21/2010)
MINUTE ORDER granting 249 Defendant's Motion for Leave to File Excess Pages nunc pro tunc to June 21, 2010. Signed by Judge Rosemary M. Collyer on 6/22/2010. (lcrmc2) (Entered: 06/22/2010)
252 NOTICE of Filing Deposition Excerpts by TODD DILLARD re 250 Reply to opposition to Motion, (Attachments: # 1 Afman Deposition Excerpts, # 2 Alandydy Deposition Excerpts, # 3 Brandt Deposition Excerpts, # 4 Conboy Deposition Excerpts, # 5 Dillard Deposition Excerpts, # 6 Mitchell Deposition Excerpts, # 7 Petchel Deposition Excerpts, # 8 Rowe (Bame) Deposition Excerpts, # 9 Shealey, Mark Deposition Excerpts, # 10 Stover Deposition Excerpts, # 11 Teeter Deposition Excerpts)(Nebeker, William) (Entered: 06/24/2010)
253 Unopposed MOTION for Leave to File Response to Plaintiffs' Under Seal Filings by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William)

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06/25/2010
06/25/2010 07/06/2010 07/06/2010
07/06/2010 08/27/2010
09/15/2010 09/23/2010 09/23/2010 09/24/2010
09/29/2010 10/04/2010 10/05/2010
10/05/2010 10/25/2010 10/26/2010 10/26/2010

(Entered: 06/25/2010)
MINUTE ORDER granting 253 Defendant's Unopposed Motion for Leave to File a Response to Plaintiffs' under seal Filings [Dkt. 245]. Defendant shall file a Response of no greater than fifteen (15) pages by no later than July 6, 2010. Signed by Judge Rosemary M. Collyer on 6/25/2010. (lcrmc2) (Entered: 06/25/2010)
Set/Reset Deadlines/Hearings: Defendant's response due by 7/6/2010. (cdw) (Entered: 06/29/2010)
254 NOTICE (Notice of Filing Under Seal) by TODD DILLARD re 212 Stipulation and Order (Nebeker, William) (Entered: 07/06/2010)
255 NOTICE by TODD DILLARD re 254 Notice (Other) (Attachments: # 1 Exhibit 18 (Clifton v. U.S. documents), # 2 Exhibit 19 (Helton v. U.S. documents), # 3 Deposition Excerpts re Gerald Auerbach, # 4 Deposition Excerpts re Jessica Born, # 5 Deposition Excerpts re Kevin Chapman)(Nebeker, William) (Entered: 07/06/2010)
256 SEALED DOCUMENT filed by TODD DILLARD. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 07/07/2010)
257 NOTICE of CHANGE IN FIRM NAME by VICKIE BROOKS, SANDRA CLYBURN, DONNA CURTIS, ANITA JOHNSON HAIRSTON, KEISHA HOLLOWAY, DIANNA JOHNSON, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, SHERYL RUTLEDGE, DIANNE WILKES (Estuar, Paul) (Entered: 08/27/2010)
258 MOTION for Order To Decertify Class by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 09/15/2010)
259 NOTICE OF SUPPLEMENTAL AUTHORITY by TODD DILLARD (Nebeker, William) (Entered: 09/23/2010)
260 MOTION for Order for leave to address sham affidavits by SANDRA CLYBURN (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Claiborne, William) (Entered: 09/23/2010)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 9/24/2010 re 232 Motion for Judgment on the Pleadings, Or In The Alternative Motion for Summary Judgment and Motion to Dismiss for Lack of Prosecution, 233 Motion for Partial Summary Judgment. Motion Hearing continued. A further hearing date will be determined by the Court. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 09/28/2010)
NOTICE of Hearing: Motion Hearing re 232 and 233 to resume on 10/28/2010 at 10:15 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 09/29/2010)
261 Unopposed MOTION for Extension of Time to File Response/Reply as to 258 MOTION for Order To Decertify Class by SANDRA CLYBURN (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/04/2010)
MINUTE ORDER granting 261 Plaintiffs' unopposed motion for an extension of time nunc pro tunc to October 4, 2010. Plaintiffs shall file an opposition to the Defendant's motion to decertify class 258 by November 1, 2010. Signed by Judge Rosemary M. Collyer on 10/5/2010. (lcrmc2) (Entered: 10/05/2010)
Set/Reset Deadlines: Response to 258 due by 11/1/2010. (cdw) (Entered: 10/06/2010)
262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion, by SANDRA CLYBURN (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 10/25/2010)
MINUTE ORDER granting 260 Plaintiffs' unopposed motion as conceded. Signed by Judge Rosemary M. Collyer on 10/26/2010. (lcrmc2) (Entered: 10/26/2010)
263 ENTERED IN ERROR.....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 SANDRA CLYBURN (Attachments: # 1 Exhibit, # 2 Text

Case: 1:02-cv-2364 As of: 03/15/2016 09:31 PM EDT 43 of 45

10/27/2010 10/28/2010 11/04/2010
11/12/2010 11/15/2010
11/15/2010 12/10/2010 12/10/2010 12/10/2010 12/20/2010 12/20/2010

of Proposed Order)(Claiborne, William) Modified on 12/21/2010 (rdj). (Entered: 10/26/2010)
264 NOTICE COURTROOM RELEASES AND PLAINTIFFS EXHIBIT # 1014 by SANDRA CLYBURN (Attachments: # 1 Exhibit Ps. Ex. 1014 American Correctional Association Standards for Adult Local Detention Facilities (excerpt))(Claiborne, William) (Entered: 10/27/2010)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 10/28/2010 re 232 and 233 . Motions heard and taken under advisement. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 10/29/2010)
265 NOTICE Of Filing by TODD DILLARD re 264 Notice (Other), Motion Hearing, 263 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, 262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion, (Attachments: # 1 Exhibit Defendant's Proposed Briefing Schedule)(Nebeker, William) (Entered: 11/04/2010)
266 MOTION for Extension of Time to File Response/Reply as to 262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion, by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/12/2010)
MINUTE ORDER. Pursuant to the Court's order at the October 28, 2010 motion hearing, the parties shall file a concise statement of facts, with record citations, by no later than December 13, 2010. Defendant shall file a single response to the Plaintiffs' two motions, 262 , 263 , and notice, 264 , by no later than December 20, 2010. No further responses or replies from any party shall be filed. Accordingly, the Defendant's motion for an extension of time 266 is GRANTED. Signed by Judge Rosemary M. Collyer on 11/15/2010. (lcrmc2) (Entered: 11/15/2010)
Set/Reset Deadlines/Hearings: Statement of facts due by 12/13/2010. Response to 262 , 263 , 264 due by 12/20/2010. (cdw) (Entered: 11/15/2010)
267 Unopposed MOTION for Extension of Time to file both parties statement of facts ; and defendants response to 262 , 263 , 264 on or before 12/20/201 by SANDRA CLYBURN (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 12/10/2010)
MINUTE ORDER granting 267 Plaintiffs' unopposed motion for an extension of time. The parties shall file a concise statement of facts, with record citations, by no later than December 20, 2010. Signed by Judge Rosemary M. Collyer on 12/10/2010. (lcrmc2) (Entered: 12/10/2010)
Set/Reset Deadlines/Hearings: Statement of Facts due by 12/20/2010. (cdw) (Entered: 12/13/2010)
268 RESPONSE TO ORDER OF THE COURT re Order on Motion for Extension of Time to, Order on Motion for Extension of Time to File Response/Reply,, Defendant's Concise Summary Of Facts filed by TODD DILLARD. (Nebeker, William) (Entered: 12/20/2010)
269 RESPONSE re 267 Unopposed MOTION for Extension of Time to file both parties statement of facts ; and defendants response to 262 , 263 , 264 on or before 12/20/201, 266 MOTION for Extension of Time to File Response/Reply as to 262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion, MOTION for Extension of Time to File Response/Reply as to 262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion,, 263 MOTION to Compel PLAINTIFFS MOTION TO COMPEL RESPONSE TO INTERROGATORY ASKING FOR INFORMATION (JACKET DATA) ON THE 562

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12/20/2010 12/20/2010 12/21/2010
04/21/2011 04/21/2011
05/04/2011
05/04/2011 05/11/2011 05/13/2011 05/13/2011

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, 262 MOTION motion for leave to address Jonathan Stovers testimony addressed in defendant's reply re 250 Reply to opposition to Motion, filed by TODD DILLARD. (Nebeker, William) (Entered: 12/20/2010)
270 NOTICE Of Filing by TODD DILLARD re 269 Response to Document,,,, (Attachments: # 1 Exhibit Stover Deposition, # 2 Exhibit Mitchell Deposition)(Nebeker, William) (Entered: 12/20/2010)
271 NOTICE Supplemental fact statement by SANDRA CLYBURN re 269 Response to Document,,,, (Attachments: # 1 Exhibit copy of article cited in facts)(Claiborne, William) (Entered: 12/20/2010)
NOTICE OF CORRECTED DOCKET ENTRY: re 263 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 was entered in error (in wrong case)and will not be refiled. (rdj) (Entered: 12/21/2010)
272 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 4/21/2011. (lcrmc2) (Entered: 04/21/2011)
273 ORDER. Pursuant to the reasoning offered in the simultaneously filed Memorandum Opinion, it is hereby ORDERED that Plaintiffs Donna Curtis, Dianna Johnson, and Carolyn Montgomery are DISMISSED without prejudice. It is further ORDERED that Plaintiffs' Motion for Leave to Address Jonathan Stover's Testimony Offered in Defendant's Reply 262 is GRANTED. Defendant's Motion for Judgment on the Pleadings, or in the alternative, Motion for Summary Judgment 232 is DENIED in part and GRANTED in part. Defendant's motion is DENIED insofar as it seeks dismissal of Plaintiff Rabbiyah Muhammad. The motion is GRANTED in all other respects. Accordingly, Plaintiffs' Motion for Partial Summary Judgment 233 is DENIED and Defendant's Motion to Decertify the Classes 258 is DENIED as moot. This case is now DISMISSED and closed. Signed by Judge Rosemary M. Collyer on 4/21/2011. (lcrmc2) (Entered: 04/21/2011)
274 NOTICE OF APPEAL re 203 Order, 226 Order and 273 Order by VICKIE BROOKS, SANDRA CLYBURN, DONNA CURTIS, ANITA JOHNSON HAIRSTON, KEISHA HOLLOWAY, DIANNA JOHNSON, CAROLYN MONTGOMERY, RUBBIYA MUHAMMED, SHERYL RUTLEDGE, DIANNE WILKES. Filing fee $ 455, receipt number 0090−2520923. Fee Status: Fee Paid. Parties have been notified. (Claiborne, William) Modified on 5/4/2011 to add linkage (rdj). ). (Entered: 05/04/2011)
275 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 274 Notice of Appeal. (rdj) (Entered: 05/04/2011)
276 MOTION for Extension of Time to File Bill Of Costs by TODD DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/11/2011)
MINUTE ORDER granting 276 Defendant's motion to postpone filing a bill of costs until after the mandate issues. The prevailing party shall file a bill of costs no later than 21 days after the Court of Appeals for the District of Columbia Circuit issues the mandate in this matter. Signed by Judge Rosemary M. Collyer on 5/13/2011. (lcrmc2) (Entered: 05/13/2011)
USCA Case Number 11−5115 for 274 Notice of Appeal, filed by VICKIE BROOKS, RUBBIYA MUHAMMED, DONNA CURTIS, SANDRA CLYBURN, KEISHA HOLLOWAY, ANITA JOHNSON HAIRSTON, CAROLYN MONTGOMERY, DIANNA JOHNSON, DIANNE WILKES, SHERYL RUTLEDGE. (rdj) (Entered: 05/18/2011)

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07/23/2012 08/13/2014

277 ORDER of USCA as to 88 Notice of Appeal to DC Circuit Court filed by TODD DILLARD ; ORDERED that this case be returned to the court's active docket; FURTHER ORDERED that the motion for summary affirmance be denied. USCA Case Number 11−5115. (md, ) (Entered: 07/24/2012)
278 USCA MANDATE (certified copy) as to 274 Notice of Appeal to DC Circuit Court, filed by VICKIE BROOKS, RUBBIYA MUHAMMED, DONNA CURTIS, SANDRA CLYBURN, KEISHA HOLLOWAY, ANITA JOHNSON HAIRSTON, CAROLYN MONTGOMERY, DIANNA JOHNSON, DIANNE WILKES, SHERYL RUTLEDGE. ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. (Attachments: # 1 USCA Opinion)(kb, ) (Entered: 08/13/2014)