UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

______________________________

:

JENNIFER REYNOLDS, et al., :

:

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Plaintiffs,

:

:

- vs -

:

:

THE COUNTY OF DAUPHIN :

:

Defendant.

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_____________________________ :

Civil Action No. 1:07-CV-01688 Judge Thomas I. Vanaskie

ORDER PRELIMINARILY APPROVING SETTLEMENT WHEREAS, the Plaintiffs and Defendant have entered into a Settlement Agreement intended to resolve the litigation pending in this Court; and WHEREAS, the Settlement Agreement, together with supporting materials, sets forth the terms and conditions for a proposed settlement and dismissal with prejudice of these actions against the Defendant; and WHEREAS, the Court has before it the parties’ Motion for Preliminary Approval of Settlement and Memorandum in Support of Motion for Preliminary Approval of Settlement, together with the Settlement Agreement and supporting materials; and WHEREAS, the Court is satisfied that the terms and conditions set forth in the Settlement Agreement were the result of good faith, arm’s length settlement negotiations between competent and experienced counsel for both Plaintiffs and Defendant.

IT IS HEREBY ORDERED AS FOLLOWS:
1. Capitalized terms used in this Order have the meanings assigned to them in the
Settlement Agreement and this Order.
2. The terms of the parties’ Settlement Agreement are hereby conditionally
approved, subject to further consideration thereof at the Final Approval Hearing provided
for below. The Court finds that said settlement is sufficiently within the range of
reasonableness and that notice of the proposed settlement should be given as provided in
this Order.
3. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the following
settlement class:
All persons who have been placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor crimes and were strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to March 12, 2008. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
4. The Court further conditionally finds that Plaintiffs are adequate class
representatives for the Settlement Class.
5. The Court further finds that Plaintiffs’ Counsel are adequate Class Counsel.
6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A
and the Summary Notice for Publication attached hereto as Exhibit B. The Court also
approves the Notice Program as set forth in Section IV of the Settlement Agreement.
7. If the Settlement Agreement is terminated or not consummated for any reason
whatsoever, the conditional certification of the Settlement Class shall be void, the
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Defendant shall have reserved all its rights to oppose any and all class certification
motions, to contest the adequacy of Plaintiffs as representatives of any putative class, and
to contest the adequacy of Class Counsel as adequate Class Counsel. Additionally,
Plaintiffs reserve all of their rights, including the right to continue with the litigation
pending at the time of the settlement should the Settlement Agreement not be
consummated.
Notice to Settlement Class and Appointment of Settlement Administrator
8. Counsel for the Class (“Class Counsel”) are as follows:
Alan M. Ross, Esquire Law Offices of Alan M. Ross, Esquire 2001 North Front Street, Suite 220 Harrisburg, PA 17102 Telephone: 717.238.6311
Charles J. LaDuca, Esquire Alexandra C. Warren, Esquire Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960
Elmer Robert Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718
Daniel C. Levin, Esquire Levin Fishbein Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500
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Gary E. Mason Esquire The Mason Law Firm 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290 9. Beginning no later than sixty (60) days from the date of this Order Preliminarily Approving Settlement, Class Counsel shall cause to be disseminated the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth in Section IV of the Settlement Agreement. Such Notice Program will be completed expeditiously pursuant to the terms of the Settlement Agreement. Class Members will have forty-five (45) days from the Notice Date to opt out or to object, and one-hundred twenty (120) days from the Notice Date to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement attesting to compliance with the provisions of this paragraph. 10. The notice to be provided as set forth in the Settlement Agreement is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in full compliance with the notice requirements of Fed R. Civ. P. 23, due process, the Constitution of the United States, the laws of Pennsylvania and all other applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness.
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11. Class Counsel are authorized to retain Garden City Group and I Partners in accordance with the terms of the Settlement Agreement and this Order. Requests for Exclusion from the Settlement Class 12. Any member of the Settlement Class that wishes to be excluded (“opt out”) from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on final settlement approval (the “Final Approval Hearing”) is hereby scheduled to be held before this Court on no later than one hundred thirty (130) days from the Notice Date, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that is Defendant herein, and the entry of final judgment in this class
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action. Class Counsels’ application for award of attorney’s fees and costs shall be heard at the time of the Final Approval Hearing. 15. The date and time of the Final Approval Hearing shall be set forth in the Notice, but the Final Approval Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the settlement class of any scheduling issues by way of the settlement website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the settlement, and Class Counsel’s application for fees and expenses by serving a written objection. 18. Any Class member making the objection (an “objector”) must sign the objection personally. An objection must state why the objector objects to the proposed Settlement and provide the basis to support such position. If an objector intends to appear personally at the Final Approval Hearing, the objector must include with the objection a notice of the objector’s intent to appear at the hearing. 19. Objections, along with any notices of intent to appear, must be filed no later than forty-five (45) days from the Notice Date. If counsel is appearing on behalf of more than
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one Class Member, counsel must identify each such Class Member and each Class
Member must have complied with the requirements of this Order. These documents
must be filed with the Clerk of the Court at the following address:
Clerk of the Court United States District Court Middle District of Pennsylvania William J. Nealon Federal Building & U.S. Courthouse 235 N. Washington Avenue P.O. Box 1148 Scranton, PA 18501
20. Objections, along with any notices of intent to appear, must also be mailed to
Class Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL
Alan M. Ross, Esquire Law Offices of Alan M. Ross, Esquire 2001 North Front Street, Suite 220 Harrisburg, PA 17102 Telephone: 717.238.6311
Charles J. LaDuca, Esquire Alexandra C. Warren, Esquire Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960
Elmer Robert Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718
Daniel C. Levin, Esquire Levin Fishbein Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106
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Telephone: 215.592.1500
Gary E. Mason Esquire The Mason Law Firm 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290
DEFENSE COUNSEL
Frank Lavery, Esquire Lavery, Flaherty, Young & Patterson 225 Market Street, Suite 304 Harrisburg, PA 17108
Carol Steinour Young, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166
21. Only Class Members who have filed and served valid and timely notices of
objection shall be entitled to be heard at the Final Approval Hearing. Any Class Member
who does not timely file and serve an objection in writing to the Settlement, entry of
Final Judgment, or to Class Counsels’ application for fees, costs, and expenses, in
accordance with the procedure set forth in the Class Notice and mandated in this Order,
shall be deemed to have waived any such objection by appeal, collateral attack, or
otherwise.
22. Persons wishing to be heard at the Final Approval Hearing are required to file
written comments or objections and indicate in their written comments or objections their
intention to appear at the Final Approval Hearing. Settlement Class members need not
appear at the hearing or take any other action to indicate their approval.
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23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the Defendant for the claims made in the Complaint. Other Provisions 24. Upon approval of the settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement.

IT IS SO ORDERED. Dated: April 8, 2009

s/ Thomas I. Vanaskie Thomas I. Vanaskie United States District Judge

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Legal Notice United States District Court for the Middle District of Pennsylvania
NOTICE OF PROPOSED SETTLEMENT AND HEARING
If You Entered The Dauphin County Prison From September 16, 2005 To March 12, 2008 And Were Strip Searched Upon Arrival, Then Your Rights Could Be Affected By A Proposed Class Action Settlement.
The United States District Court for the Middle District of Pennsylvania authorized this notice. It is not from a lawyer. You are not being sued.
o This is a proposed settlement of a class action lawsuit alleging that corrections officers employed at the Dauphin County Prison engaged in the illegal strip searches of all individuals charged with only misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor offenses upon their entry into the Dauphin County Prison from September 16, 2005 until March 12, 2008.
o The settlement would entitle each Class Member to an equal share of a $2,160,500.00 million settlement fund (after payment of administrative costs, an incentive award to the representative plaintiff, and attorneys’ fees). The maximum payment to any Class Member shall be $1,400.00.
o If any money is left over after each claimant has received their share of the settlement fund, States Self-Insured Risk Retention Group may receive some money back. This is detailed later in this notice.
o Visit the settlement website at [INSERT] for additional details about the settlement. You may also get additional information by calling 1-800 [insert phone #] or by writing to [insert address].
o Your legal rights are affected whether you act or don’t act. Read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

Submit a Claim Form

You must submit a Claim Form to receive payment under the settlement. You must submit a Claim Form by [insert date] to receive any money.

Exclude Yourself

If you exclude yourself from the settlement, you

Object
Go to a Hearing Do Nothing

will not be bound by the settlement or judgment and will not be entitled to a cash payment. You will be free to pursue your claims against the Defendant. This is the only option that allows you to bring or be part of any other lawsuit against the Defendant in this case about the same legal claims that are advanced in this case. You must exclude yourself from the settlement by [Insert Date].
If you do not exclude yourself, you may write to the Court about why you do not like the settlement or the request for legal fees and costs. You must send a written objection to the Court postmarked no later than [Insert Date].
You may ask to speak in Court about the fairness of the settlement or the request for fees and costs.
You get no payment. You give up your right to sue Defendant on these claims later.

o These rights and options - and the deadlines to exercise them - are explained in this notice.

o The Court in charge of this case still must decide whether to give final approval to the settlement. Likewise, payments to class members will be distributed only if the Court grants final approval of the settlement and after any appeals are resolved.

I. WHY DID I GET THIS NOTICE PACKAGE?
You or someone in your family may have been charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes, in Dauphin County, from September 16, 2005 to March 12, 2008 and been subject to a strip search.

The Court sent you this notice because you have the right to know about a proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the settlement. If the Court approves it, and after any possible objections and appeals are resolved, an administrator appointed by the Court will make the monetary payments that the settlement allows. You will be informed of the progress of the settlement. You should understand that the process of Court approval may take a good deal of time.

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This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them and how to get them.
The Court in charge of this case is the United States District Court for the Middle District of Pennsylvania, United States District Judge Thomas I. Vanaskie presiding. The case is called Reynolds, et al. v. County of Dauphin, No. 1:07-CV-01688. The people who brought suit are called the Plaintiffs. Plaintiffs sued the County of Dauphin.
II. WHAT IS THIS LAWSUIT ABOUT? Plaintiffs claim in this lawsuit that the County of Dauphin illegally strip searched
individuals who were charged with misdemeanor crimes, violations of probation or parole or intermediate punishment, or other minor offenses upon their admission to the Dauphin County Prison, in violation of the unreasonable search provisions of the United States Constitution. Defendant denies that it did anything wrong, and contends that even if the County did do something wrong, Plaintiffs and the Class Members are not entitled to any money as a result of being searched.
III. WHY IS THIS A CLASS ACTION? In a class action, one or more people, called the Class Representatives, sue on
behalf of all people who have similar claims. All of these people are a Class or Class Members. A class action resolves the issues for all Class Members, except for those who exclude themselves from the Class. United States District Judge Thomas Vanaskie is in charge of this class action.
IV. WHY IS THERE A SETTLEMENT? The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides
agreed to a settlement. That way, they avoid the costs and risks of a trial, and the people affected will get compensation. The Class Representatives and their attorneys think the settlement is best for everyone who is alleged to have been illegally strip searched.
V. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
All persons who have been or will be placed into the custody of the Dauphin County
Prison after being charged and arrested within the County of Dauphin with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes, were or will be strip searched upon their transfer and entry into Dauphin County Prison. The class period commences on September 16, 2005 and extends until
March 12, 2008. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
The settlement does not cover individuals charged with felony offenses at the time of their entry into the Dauphin County Prison, anyone who entered the Dauphin County Prison after being convicted of (as compared to only being charged with) a crime,
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or anyone who entered the Prison but was not strip searched as part of the Prison’s booking procedure.
VI. DO I NEED TO PROVE THAT I WAS STRIP-SEARCHED, AND WHAT DOES THAT MEAN? In filling out the Claim Form, you will affirm, under penalty of perjury, that you
were strip searched during the admission process at the Dauphin County Prison. If your name is not contained in Dauphin County’s records, you may be asked to provide additional documentation before being allowed to participate in the settlement.
A strip search occurred if, during the admission process, you were ordered to take off all of your clothes by a Dauphin County employee, with that employee watching you undress. Some members of the Class may also have been forced to bend at the waist or manipulate body parts to allow for a visual inspection. If you were searched in this manner when you were booked into the facility, you are a member of the Class and entitled to make a claim. You will need to provide an affirmation on the Claim Form confirming that one of these searches was conducted on you when you entered the Dauphin County Prison.
VIII. HOW DO I KNOW WHETHER THE CRIME FOR WHICH I WAS CHARGED UPON ADMISSION TO THE DAUPHIN COUNTY PRISON QUALIFIES ME FOR INCLUSION IN THE CLASS? You must have been brought to the Dauphin County Prison before a judge had
sentenced you (pre-adjudication) to be eligible to recover, and the charges must have been misdemeanor or summary offenses or violation of probation, parole or intermediate punishment. Everyone brought to the Dauphin County Prison pre-adjudication on misdemeanor and/or summary offenses and/or violation of probation or parole or intermediate punishment and who was strip searched upon admission is eligible under this settlement agreement.
Finally, if you were arrested and brought to the Dauphin County Prison under traffic offenses or traffic warrants, failing to pay fines and contempt, pre-adjudication, you are eligible under the Settlement Agreement. Consequently, if you failed to honor a payment order with a municipal court and were arrested, or failed to appear for a municipal court date and arrested, brought to the Dauphin County Prison and strip searched, you are eligible to receive a settlement payment.
IX. I WAS ADMITTED TO THE DAUPHIN COUNTY PRISON BUT I CAN’T REMEMBER WHAT MY CRIMINAL CHARGES WERE. HOW CAN I FIND THIS OUT, AND HOW DO I KNOW IF THE CHARGE WAS A MISDEMEANOR OR VIOLATION? There are several ways for potential class members to determine the nature of
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their criminal charges. First, you can review your charging documents, which should reflect both your actual charges and whether the charges were a misdemeanor offense. If you do not have your charging document and remember the local court where you were prosecuted, the court clerk will be able to help you find these documents.
If you need additional help determining whether you are a class member, or of you have other questions, you can contact the Settlement Administrator at [insert number].
You can still make a claim if you do not remember your criminal charges if you believe you are a member of the Class, but you may be asked for additional information.
X. I PLED GUILTY TO A CRIME. HOW DOES THIS AFFECT MY RIGHT TO PARTICIPATE IN THE SETTLEMENT? If you were admitted to the Dauphin County Prison solely on minor charges, as
defined above, you can participate in the settlement regardless of how you resolved your criminal charges, including if you pled guilty to those charges. This is provided that you were admitted to the Prison before being sentenced by a court. For most Class Members, this would mean that they were committed to the Dauphin County Prison after they were arraigned before a Judge. If you were sentenced before admission to the Prison (meaning you were committed after pleading guilty or being convicted at trial) you are not a Class Member.
XI. WHAT IF I WAS ADMITTED TO THE DAUPHIN COUNTY PRISON ON MORE THAN ONE OCCASION DURING THE CLASS PERIOD? CAN I STILL PARTICIPATE IN THE SETTLEMENT? Yes. Individuals who were admitted to the Dauphin County Prison on more than
one occasion during the class period can be members of the class and can recover money. They can only recover one payment, however, meaning that you will not be provided with extra payments if you were admitted to the Dauphin County Prison more than one time.
XII. I AM STILL NOT SURE IF I AM INCLUDED. If you are still not sure if you are included, you can ask for help. You can call
[insert number] and the Settlement Administrator or Class Counsel may help answer your questions. For more information, you can also visit the website, [INSERT], or you can just fill out the Claim Form and return it to the Settlement Administrator to see if you qualify.
THE SETTLEMENT BENEFITS - WHAT YOU GET
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XIII. WHAT DOES THE SETTLEMENT PROVIDE? States Self-Insured Risk Retention Group has agreed to pay $2,160,500.00 to
resolve this litigation. That money will be used to: 1) compensate Class Members who have been illegally strip searched; 2) pay for notifying Class Members and administering the settlement; 3) pay incentive awards to the named Plaintiffs, Jennifer Reynolds, Ashley McCormick and Devon Shepard; and 4) pay attorneys’ fees and expenses. A complete description of the settlement is provided in the Settlement Agreement. You can get a copy of the Settlement Agreement by visiting [enter website address] or by calling [enter administrator phone number].
XIV. WHAT CAN I GET FROM THE SETTLEMENT? The settlement provides that all Class Members who make claims will receive an
equal share of $2,160,500.00, minus the costs of notice and administration, an incentive award for the named Plaintiffs, attorneys’ fees, and expenses, except that payments to each Class Members will be no more than $1,400.00. These amounts are dependent on how many claims are received by the Claims Administrator during the claims period, and are subject to change based on the number of claims received. No amount is guaranteed.
If any money is left over after each claimant has received his or her share of the settlement fund, Defendant Dauphin County will receive it.
HOW YOU GET A PAYMENT - SUBMITTING A CLAIM FORM
XV. HOW CAN I GET A PAYMENT? To qualify for a payment, you MUST send in a Claim Form. A claim form is
attached to this Notice. You can also get a claim form on the Internet at [INSERT]. Read the instructions carefully, fill out the form, sign it, and mail it postmarked no later than [insert date].
You may be asked for additional documents, and will be contacted in writing. You may want to send in your claim form by Certified Mail, Return Receipt Requested, to ensure that it is received by the Settlement Administrator.
XVI. WHEN WOULD I GET MY PAYMENT? The Court will hold a hearing on Friday, October 9, 2009, to decide whether to
approve the settlement. If Judge Vanaskie approves the settlement, there may be appeals. It is always uncertain whether those appeals can be resolved, and resolving them can take time, perhaps more than a year. Everyone who sends in a claim form will be informed of the progress of the settlement. Please be patient.
XVII. WHAT AM I GIVING UP TO GET A PAYMENT OR STAY IN THE
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CLASS? Unless you exclude yourself, you are staying in the Class, and that means you can’t sue, continue to sue, or be part of any other lawsuit against Dauphin County, its employees, or its elected officials about the legal issues in this case. It also means that all the Court’s orders will apply to you and legally bind you. If you sign the claim form, you will agree to release all claims that you have relating to having been strip searched.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you do not want a payment from this settlement, but you want to keep the right to sue or continue to sue Dauphin County on your own about the legal issues in this case, then you must take steps to preserve these rights. This is called excluding yourself - or is sometimes referred to as “opting out” of the Settlement Class.
XVIII. HOW DO I GET OUT OF THE SETTLEMENT? To exclude yourself from the settlement, you must send a letter by mail saying
that you want to be excluded from Reynolds et al. v. County of Dauphin. Be sure to include your name, address, telephone number and your signature. You must mail your exclusion request postmarked no later than [insert date] to [insert address].
You can’t exclude yourself on the phone or by email. If you ask to be excluded, you will not get any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Dauphin County in the future.
XIX. IF I DO NOT EXCLUDE MYSELF, CAN I SUE DAUPHIN COUNTY FOR THE SAME THING LATER? No. Unless you exclude yourself, you give up the right to sue Dauphin County
for the claims that this settlement involves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this class action to continue your own lawsuit. Remember, the exclusion deadline is [insert date].
XX. IF I EXCLUDE MYSELF, CAN I GET MONEY FROM THE SETTLEMENT? No. If you exclude yourself, do not send in a claim form to ask for money. But,
you may sue, continue to sue, or be part of a different lawsuit against Dauphin County.
THE LAWYERS AND INDIVIDUALS
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REPRESENTING YOU
XXI. DO I HAVE A LAWYER IN THIS CASE? The Court approved Alan M. Ross, Esquire of the Law Offices of Alan M. Ross,
Esquire; Elmer Robert Keach, III, Esquire of the Law Offices of Elmer Robert Keach, III, PC; Charles J. LaDuca, Esquire of Cuneo Gilbert & LaDuca, LLP; Gary Mason, Esquire of The Mason Law Firm; and Daniel C. Levin, Esquire of Levin Fishbein Sedran & Berman, to represent you and other Class Members. Together, the lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
XXII. HOW WILL THE LAWYERS AND THE CLASS REPRESENTATIVES BE PAID? Class Counsel will ask the Court for attorneys’ fees and expenses as a percentage
of the $2,160,500 settlement, and payments of $15,000 for Class Representatives Jennifer Reynolds and Ashley McCormick, and payment of $10,000 for Class Representative Devon Shepard. The Settlement Agreement provides that thirty percent of the settlement fund will be paid to Class Counsel as an award of attorneys’ fees, together with an award for the reimbursement of expenses. These amounts will be deducted from the settlement fund before payments are made to Class Members. The costs of administering the settlement will also be deducted from the settlement fund.
OBJECTING TO THE SETTLEMENT
You can tell the Court that you do not agree with the settlement or some part of it.
XXIII. HOW DO I TELL THE COURT THAT I DO NOT LIKE THE SETTLEMENT? If you are a Class Member, you can object to the settlement if you don’t like any
part of it. You can give objections why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to Reynolds et al. v. County of Dauphin. Be sure to include your name, address, telephone number, your signature, and the reasons why you object to this settlement. Mail the objection to these three different places postmarked no later than [insert date].
COURT Clerk of the Court United States District Court Middle District of Pennsylvania
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William J. Nealon Federal Building & U.S. Courthouse 235 N. Washington Avenue P.O. Box 1148 Scranton, PA 18501
CLASS COUNSEL Alan M. Ross Law Offices of Alan Ross 2001 North Front Street, Suite 220 Harrisburg, PA 17102
DEFENSE COUNSEL Frank Lavery Lavery, Flahery, Young & Patterson 225 Market Street, Suite 304 Harrisburg, PA 17108
Carol Steinour Young, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166
XXIV. WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING MYSELF? Objecting is simply telling the Court that you do not like something about the
settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be a part of the class. If you exclude yourself, you have no basis to object because the case no longer legally affects you.
THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you do not have to do so.
XXV. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? On Friday, October 9, 2009, at 1:30 p.m. the United States District Court for the
Middle District of Pennsylvania will hold a fairness hearing in the Federal Building and U.S. Courthouse, 228 Walnut Street, Harrisburg, PA 17108, in a courtroom to be designated by the Clerk of Court, to determine whether the Class was properly certified
9

and whether the proposed settlement is fair, adequate, and reasonable. The Court will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay Class Counsel. This hearing may be continued or rescheduled by the Court without further notice. We do not know how long it will take the Court to give its decision.
XXVI. DO I HAVE TO COME TO THE HEARING? No. Class Counsel will answer questions Judge Vanaskie may have. But you are
welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not required.
XXVII. MAY I SPEAK AT THE HEARING? You may ask the Court for permission to speak at the Fairness Hearing. To do so,
you must send a letter saying that it is your “Notice of Intention to Appear in Reynolds, et al. v. County of Dauphin.” Be sure to include your name, address, telephone number and your signature. Your Notice of Intention to Appear must be postmarked no later than [insert date] and be sent to the Clerk of the Court, Class Counsel, and Defense Counsel, at the three addresses in question XXIII. You cannot speak at this hearing if you excluded yourself.
IF YOU DO NOTHING
XXVIII. WHAT HAPPENS IF I DO NOTHING AT ALL?
If you do nothing, you will get no money from the settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Dauphin County about the legal issues in this case, ever again. Unless you exclude yourself, you need to file a claim to receive a monetary payment under the settlement.
GETTING MORE INFORMATION
XXIX. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT?
This Notice summarizes the proposed settlement. More details are in a Settlement Agreement. You can get a copy of the Settlement Agreement by writing to the Settlement Administrator at [insert address] or by visiting [insert web address].
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XXX. HOW DO I GET MORE INFORMATION? You can call [insert number], write to the Settlement Administrator at [insert
address], or visit the website at www.dauphincountystripsearch.com, where you will find answers to common questions about the settlement, a claim form, plus other information to help you determine whether you are a Class Member and whether you are eligible for payment.
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COURT ORDERED LEGAL NOTICE
If you were admitted into the Dauphin County Prison between September 16, 2005 and March 12, 2008 and were strip searched upon admission, you could receive a payment from a class action settlement.
A $2,160,500.00 million settlement has been proposed in a class action lawsuit about the strip search policies of the Dauphin County Prison (“DCP”). If you meet the criteria explained below, you can share in this settlement.
The United States District Court for the Middle District of Pennsylvania authorized this notice. The Court will have a hearing to decide whether to approve the settlement, so that the benefits may be paid.
Who’s Included?
You are a Class Member and could get benefits if (1) you were admitted into the DCP from September 16, 2005 through March 12, 2008, (2) you were charged with misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor crimes, and (3) you were strip searched upon entry into the Correctional Facility without reasonable cause to believe that you were concealing a weapon or other contraband.
What’s This About?
The lawsuit claims that Defendant Dauphin County and its Corrections Officers unlawfully strip-searched everyone admitted into the DCP. The County of Dauphin has denied those claims. The Court did not decide which side was right, but both sides agreed to the settlement to ensure a resolution and to provide benefits to the people who were affected.
What Does the Settlement Provide?
States Self-Insured Risk Retention Group has agreed to pay a total of $2,160,500.00 to settle the case. That will pay for the claims of the Class Members, the administrative costs of the settlement, an incentive award to the named plaintiffs, and the

attorneys’ fees and expenses. You can only make one claim, even if you were strip searched more than once.
Each Class Member who makes a claim will receive an equal share of the portion of the settlement fund allocated to pay claims to Class Members, which, after deducting the other costs set forth above, shall be no more than $1,400.00.
If any money is left over after each claimant has received their share of the settlement fund, the Defendants may receive some money back from the settlement fund.
How Do You Ask For A Payment?
A detailed Notice and Claim Form package contains everything you need. Just call 1-800-XXX-XXXX or visit the settlement website, [INSERT], to get one. To qualify for a payment, you must send in a Claim Form. Claim forms are due by [insert date], 2008.
What Are Your Other Options?
If you want to share in the settlement, all you need to do will be to obtain a Claim Form, as just explained, and return it according to its directions. If you don’t want the settlement benefits or don’t want to be legally bound by the settlement, you must exclude yourself by [insert date] 2009. If you exclude yourself, you can’t get any benefits from this settlement, but you could bring a separate case against the defendant, if you want to. If you stay in the settlement, you may object to it by [insert date] 2009. The detailed notice, available by calling or visiting the website below, explains how to exclude yourself or object.
The court will hold a hearing in this case (Reynolds et al. v. County of Dauphin, Case No. 1:07-cv-01688) on Friday, October 9, 2009, at 1:30 p.m., to consider whether to approve the settlement and a request by the lawyers representing all Class Members (Alan M. Ross, Esquire of the Law Offices of Alan M. Ross, Esquire; Elmer Robert Keach, III, Esquire of the Law Offices of Elmer Robert Keach, III, PC; Charles J. LaDuca, Esquire of Cuneo Gilbert & LaDuca, LLP; Gary Mason, Esquire of The Mason Law Firm; and Daniel C. Levin, Esquire of Levin Fishbein Sedran & Berman) for attorneys’ fees and costs. You may ask to appear at the hearing, but you don’t have to. For more information, call toll free 1-800-000-0000, visit the settlement website [INSERT], or write to Settlement, P.O Box X, City, State, 00000.
2

 
 Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually :

and on behalf of a class of others similarly :

situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

:

Defendant.

:

____________________________________:

Civil Action Number
CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendant County of Dauphin

of rights secured to the Plaint iffs and proposed Class by the United States Constitution and the

laws of the United States of Am erica. Da uphin County has a policy of strip-searching all

individuals who enter the Dauphin County Prison a nd are placed into jail clothing, regardless of

the crime upon which they are charged, and has had such a policy during the duration of the class

period proposed in this com plaint. Upon inform ation and belief, this policy is, in part, derived

from the written procedures of Dauphin County, and was promulgated by senior Dauphin County

Prison officials.

It is well established in this judicial circuit that individuals charged with misdemeanors or

summary offenses cannot be strip-searched absent particularized reasonable suspicion that they

possess weapons or contraband. In short, the policy of Dauphin County to force those charged

1

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 2 of 16
with minor crimes to undergo the indignities of a strip search upon entry into the Dauphin County Prison is not only clearly illegal, but is insensitive and unnecessary.
Plaintiffs bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip search ed after being charged with petty crimes, to vindicate the clear and unnecessary violatio n of their civil righ ts and those of t he class m embers they propose to represent. Plaintiffs were all charged with summary offenses, and all were subjected to a strip search, in violation of their rights against unreasonable searches under the Fourth Amendment of the United States Cons titution. Plaintiffs seek monetary damages for them selves and each member of the proposed class, a declaratio n that the D auphin County Prison policies are unconstitutional, and an injunction precluding Dauphin County from continuing to violate the rights of th ose placed into th eir custody. W ith this as a background, Plaintiffs complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action und er the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation , under colo r of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain de claratory relief relative to the Constitutionality of the policies of a loca l government. 2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events givin g rise to Plaintiff’s claims and those of proposed class members occurred in this judicial district.
2

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 3 of 16
PARTIES 3. Plaintiff Jennifer Reynolds is a citizen of the United States and resides in the State of Maryland. On or about September 2, 2007, Ms. Reynolds was arrested and placed in th e Dauphin County Prison on charges of assem bly without a proper perm it, a violation of the Harrisburg City Code. 4. Plaintiff Ashley McCorm ick is a citizen of the United Stat es and resides in Dauphin County, Pennsylvania. On or about September 13, 2007, Ms. McCormick was arrested and placed in the Dauphin County Prison for failing to pay parkin g tickets in the City of Harrisburg. 5. Plaintiff Herbert Carter is a citizen o f the United States and resides in the State of Maryland. On or about Septem ber 2, 2007, Mr. Cart er was arrested and placed in the Dauphin County Prison on charges of assembly without a proper permit, a violation of the Harrisburg City Code. 6. Plaintiff Devon Sheppard is a citizen of the United States and resides in the State of Maryland. On or about September 2, 2007, Ms. Sheppard was arrested and placed in the Dauphin County Prison on charges of assem bly without a proper perm it, a violation of the Harrisburg City Code. 7. Defendant County of Dauphin (the “Count y”) is a county gove rnment organized and existing under the laws of the Comm onwealth of Pennsylvania. At all times relevant hereto, the County, acting through its P rison Board of Inspectors, was responsible for the policies, practices, supervision, im plementation and con duct of all m atters pertaining to the Dauphin County Prison and was responsible for the appointment, training, supervision and conduct of all
3

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 4 of 16
Dauphin County Prison. In addition, at all rele vant times, the County was responsible for enforcing the rules of the Da uphin County Prison, and for ensuri ng that personnel em ployed in the Dauphin County Prison obey the Constitution a nd laws of the United States and of t he Commonwealth of Pennsylvania.
CLASS ACTION ALLEGATIONS 8. Plaintiff brings this action pursuant to Rules 23(b)(2) and 23 (b)(3) of the Federal Rules of Civil Procedure on behalf of himself and a class of sim ilarly situated individuals who were charged with m isdemeanors or minor crimes and were strip search ed upon their entry into the Dauphin County Prison. 9. The class that Plaintiff seeks to represent is defined as follows:
All persons who have been or w ill be placed into th e custody of the Dauphin County Prison afte r being charged with m isdemeanors, summary offenses, violations of probation or parole, civil comm itments, or m inor crimes and were or will be strip searched upon their en try into the Dauphin County Prison pursuant to the policy, cu stom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspic ion. Specifically excluded from the class are Defendants and any and all of their respective af filiates, legal representatives, heirs, successors, employees or assignees. 10. This action has been brought and m ay properly be m aintained as a class action under Federal law an d satisfies the num erosity, commonality, typicality and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). 11. The members of the class are so n umerous as to rende r joinder impracticable. Upon information and belief, there are hundreds of people arrested for m isdemeanors and violations who are placed into the custody of the Dauphin County Prison every month -- all of
4

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 5 of 16
whom are members of the proposed class. Upon in formation and belief, the size of the proposed class totals at least 7,000 indivi duals, some of whom have had their civil rights violated on multiple occasions.
12. Upon information and belief, joinder of a ll of these individuals is im practicable because of the large n umber of class m embers and the fact that class m embers are lik ely dispersed over a large geographical area, with some members presently resid ing outside o f Dauphin County and this Judicial District. F urthermore, upon information and belief, m any members of the class are low-inco me persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
13. Common questions of law and f act exist as to all m embers of the Clas s, in that they all had their right to be free from unreasonable searches violated by Defendant’s conducting strip searches absent particular ized suspicion. All m embers of the class were charged with misdemeanors or violations when placed into th e custody of the Dauphin County Pr ison, and all were illegally strip searched in violation of the established law in this judicial circuit.
14. Plaintiffs’ claims are typical of the claim s of the members of the Class. P laintiffs and all m embers of the class sustained dam ages arising out of Defendant’s course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the class members.
15. The representative Plaintiffs have the requisite personal interest in the outcome of this action a nd will f airly and ad equately protect the inte rests of the Cla ss. Pla intiffs have n o interests that are adverse to the interests of the members of the Class.
16. Plaintiffs have retain ed counsel wh o have substantial experience and success in the prosecution of class action and civil rights litigation.
5

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 6 of 16
17. In short, Plaintiffs’ counsel has the re sources, expertise and experience to successfully prosecute this action against Dauphin County. Counsel for the Plaintiff knows of no conflicts among members of the class or between counsel and members of the class.
18. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs seek class certification under Fed. R. Civ. P. 23(b)(2 ), in that all class m embers were subject to the same policy requiring the illegal strip searches of individuals charged with m isdemeanor or minor crimes and placed into the custody of the Dauphin County Prison. In short, the County of Dauphin has acted on grounds generally applicable to all class members.
19. In addition to certification unde r Rule 23(b)(2), and in th e alternative, Plaintiffs seek certification under Rule 23(b)(3).
20. Common questions of law and fact exist as to all m embers of th e Class, and predominate over any questions that affect on ly individual members of the Clas s. Thes e common questions of law and fact include, without limitation, the co mmon and predom inate question of whether the Defendant’s written and/or de facto policy of strip searching all individuals charged with m isdemeanors or minor crimes and committed to the Dau phin County Prison is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
21. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual m embers of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furtherm ore, the expe nse and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to
6

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 7 of 16
them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would al so magnify the delay and expense to all parties and the court system . By contrast, the conduct of this action as a class action in this District presents far fewer m anagement difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
22. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals.
23. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 24. The Fourth Am endment of the United St ates Constitution prohibits go vernment agencies, such as the County of Dauphin and the Corrections Officers it supervises, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officers in que stion have rea sonable suspicion to b elieve that the arrestee is concealing a weapon or contraband. 25. Upon information and belief, the County of Dauphin has instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Dauphin County Prison and are placed into ja il clothing, regardless of the n ature of their charged crime and without the presence of reasona ble suspicion to believe that the individual was concealing a weapon or contraband.
7

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 8 of 16
26. The Dauphin County Prison is the local ja il used by Dauphin County to m ostly house pre-trial detainees, as well as individuals sentenced to lo cal time. While Dauphin County refers to its local jail as a “prison,” and this co mplaint utilizes the form al name for the facility, “Dauphin County Prison,” provided by the County, Da uphin County’s local jail is most certainly not comparable to a state prison, which hous es only sentenced detainees facing lengthy sentences.
27. Upon information and belief, the County of Dauphin has instituted a written and/or de facto policy, custom or practice of conducti ng visual body cavity searches (visual inspection of the vaginal and r ectal cavities) on all individua ls who enter the custody of the Dauphin County Prison, regardless of the individual ch aracteristics or the nature of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectiv ely referred to as “strip searches.”
28. The County of Dauphin knows that it m ay not institute, enforce or perm it enforcement of a policy or practice of conduc ting strip searches without particularized, reasonable suspicion.
29. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches of all m isdemeanor and violation arrestees ha s been prom ulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
30. Reasonable suspicion to conduct a stri p search m ay only e manate from the particular circumstances antecedent to the searc h, such as the nature of the crim e charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
8

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 9 of 16
31. Upon information and belief, the C ounty of Dauphin has prom ulgated, implemented, enforced, and/or faile d to rectify a written and/or de facto policy, practice o r custom of strip searching all individuals placed into the cu stody of the Dauphin County Prison and placed into jail clothing without any requirem ent of r easonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a p articular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
32. Pursuant to this written and/or de facto policy, each m ember of the Class, including the named Plaintiffs, was the victim of a routine strip search u pon their entry into the Dauphin County Prison. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, am ong other innocuous offenses, Driving W hile Intoxicated, Harassment, Trespassing and a range of summary offenses.
33. As a direct and proxim ate result of th e unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches -- each m ember of the class, including the nam ed Plaintiffs -- has suf fered or will suf fer psychological pa in, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs 34. Plaintiffs Jennifer Reynolds, Herbert Carter and Devon Sheppard were arrested on September 2, 2007 for a violation of the Harrisburg City Code, fo r allegedly assembling without
9

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 10 of 16
a permit. Reynolds, Carter and Sheppard were arre sted as part of the infa mous actions of the Harrisburg Police on McCorm ick Island during the recent Labor Day weekend, and were transported to the Dauphin County Prison when they could not pay fines that were assessed upon them by a District Justice to en sure their appearance. Reynolds, Carter and Sheppard were all strip searched shortly after th eir admission to the Dauphin C ounty Prison contemporaneous with their receipt of a jail uniform . All were released from the Dauphin County Prison shortly after their admission, when their fam ily members paid the required fines nece ssary to secure their release.
35. Plaintiff Ashley McCormick was arrest ed on Septem ber 13, 2007 for failing to pay parking tickets issued by th e City of Harrisburg, the bulk of which relate to h er failure to move her car for street cleaning. McCorm ick was arrested by Magisterial District Court constables in her hom e when she was sleeping, and she was later transported to the Dauphin County Prison in her pajamas. Shortly after being taken to the prison, Ms. McCormick was strip searched immediately prior to receiving the ja il uniform. Ms. McCor mick was later released from the Dauphin County Prison after her family paid her fines.
36. The arrests of all four p laintiffs were void of any reas onable suspicion to believe that they harbored any weapons or contraband.
37. As a direct and proximate result of the unlawful strip searches conducted pursuant to Dauphin County’s policy, practice and custom, Plaintiffs have suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
10

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 11 of 16
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid Constitutional Deprivations, Under Color of State Law --
38. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 37.
39. The Fourth Amendment of the United Stat es Constitution protects citizens from unreasonable searches by law enforcem ent officers, and prohibits officers from conducting strip searches of indiv iduals arrested for m isdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.
40. The actions of Defendant Dauphin County detailed above violated Plaintiffs’ rights under the United States C onstitution. S imply put, it was not objectively reasonable for Dauphin County Corrections Officers to strip search Plaintiffs and Class members based on their arrests for misdemeanor/summary charges.
41. These strip searches were conducted pursuan t to the policy, custom or practice of the County of Dauphin. As such, the County of Dauphi n is directly liable for the damages of the Plaintiffs and members of the Class.
42. This conduct on the part of the Defendant represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
43. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the members of the Class have been irreparably injured.
11

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 12 of 16
AS AND FOR A SECOND CAUSE OF ACTION -- Demand for Declaratory Judgment --
44. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 43.
45. The policy, custom and practice of the County of Dauphin is clearly unconstitutional, in that Corrections Officers of the Dauphin County Prison are directing/conducting the strip sear ches of all individuals placed into the Dauphin County Prison without any particularized suspicion that the in dividuals in question have either contraband or weapons.
46. Plaintiffs and m embers of the Class reque st that this Court i ssue a decl aratory judgment, and that it declare the strip sear ch policy of the County of Dauphin to be unconstitutional.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
47. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 46.
48. The policy, custom and practice of the County of Dauphin is clearly unconstitutional, in that Corrections Officers of the Dauphin County Prison are directing/conducting the strip sear ches of all individuals placed into the Dauphin County Prison without any particularized suspicion that the in dividuals in question have either contraband or weapons.
12

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 13 of 16 49. Upon information and belief, this policy is currently in place at the Dauphin
County Prison, with new and/or prospective m embers of the Class being s ubjected to the harm s that have already been inflicted upon the Plaintiffs.
50. The continuing pattern of strip searching individuals charged with m inor crimes will cause irreparable harm to th e new and/or prospective m embers of the Cla ss, an adequa te remedy for which does not exist at law.
51. Plaintiffs demand that the County of Dauphin immediately desist from strip searching individuals placed in to the custod y of the Dauphin County Prison absent any particularized suspicion that th e individuals in question have e ither contraband or weapons, and seeks both a preliminary and permanent injunction from this Court ordering as much.
DEMAND FOR TRIAL BY JURY 52. The Plaintiff hereby demands a trial by jury.
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Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 14 of 16
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Jennifer Reynolds, Ashley McCormick, Herbert Carter and Devon Sheppard, on behalf of themselves and on be half of a class of others sim ilarly situated, requests that this Honorable Court grant them the following relief: 1. An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Defendant County of Dauphin awarding Compensatory Damages to Plaintiff and each member of the proposed class in an amount to be determined by a Jury and/or the Court on both an individual and a class wide basis. 3. A declaratory judgm ent declaring that the County of Dauphin ’s policy, practice and custom of strip and visual cavity searching all detainees entering the Dauphin County Prison, regardless of the crime charged or suspicion of contraband, to be unconstitutional and improper. 4. A preliminary and permanent injunction enjoining Defendant County of Dauphin from continuing to strip and visual cavity sear ch individuals charged with m isdemeanors or minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband. 5. A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23;
14

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 15 of 16

Dated: September 15, 2007

Respectfully Submitted By:
Alan M. Ross, Esquire Pennsylvania Supreme Court ID No. 8130 I Member ofthe Bar, U.S.D.C., M.D.Pa. LAW OFFICE OF ALAN M. ROSS, LLC 2001 North Front Street, Suite 220 Harrisburg, PA 17102 Telephone: 717.238.6311 Te1ecopier: 717.238.0860 Electronic Mail: amresquire@aoLcom
Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT
KEACH, III, PC 1040 Riverfront Center P. O.Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com
Charles J. LaDuca, Esquire CUNEO GILBERT & LaDUCA, LLP 507 C Street, NE Washington. DC 20002 Telephone: 202.789.3960 Telecopier: 202.789.1813 Electronic Mail: charles]@cuneolaw.com
Daniel C. Levin, Esquire Pennsylvania Supreme Court ID No. 80013 LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500 Telecopier: 215.592.4663 Electronic Mail: dlevin@lfsblaw.com

Case 1:07-cv-01688-TIV Document 1 Filed 09/16/2007 Page 16 of 16
Gary E. Mason, Esquire THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290 Telecopier: 202.429.2294 Electronic Mail: gmason@masonlawdc.com
ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS

 
 Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually:

and on behalf of a class of others similarly :

situated,

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

Defendant

:

NO. 1:07-CV-01688-CCC (Complaint filed 9/16/07)
Judge Christopher C. Conner CIVIL ACTION – LAW JURY TRIAL DEMANDED

DEFENDANT COUNTY OF DAUPHIN’S MOTION TO DISMISS

AND NOW, comes Defendant, the County of Dauphin, by and through its

attorneys, Lavery, Faherty, Young & Patterson, P.C. and McNees, Wallace &

Nurick LLC, hereby files this Motion to Dismiss, and in support thereof avers as

follows:

1. Plaintiffs, Jennifer Reynolds, Ashley McCormick, Herbert Carter, and

Devon Sheppard, both individually and on behalf of a class of others similarly

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 2 of 10
situated, initiated this class action lawsuit with the filing of a civil complaint on
September 18, 2007.
2. Plaintiffs served their complaint upon Defendant on September 21,
2007.
3. Plaintiffs’ complaint alleges, inter alia, that Dauphin County Prison
(hereinafter “Prison”) has a written and/or de facto policy of strip-searching all
individuals who enter the Prison regardless of the crime upon which they are
charged and without the presence of reasonable suspicion to believe that the
individuals are concealing a weapon or contraband. (Complaint, Doc. 1, ¶ 25).
4. The class that Plaintiffs seek to represent is the following:
All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes and were or will be strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
(Id. at ¶ 9).
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Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 3 of 10
5. Plaintiffs seek class certification pursuant to Rules (23)(b)(2) and 23(b)(3), Federal Rules of Civil Procedure. (Id. at ¶¶ 18, 19).
6. Named Plaintiffs allege that they each were arrested and subsequently strip searched at the Prison. (Id. at ¶¶ 34-37).
7. Plaintiffs allege in Count I of their complaint that the strip searches of named Plaintiffs and unnamed members of the purported class violated the Fourth Amendment of the United States Constitution. (Id. at ¶¶ 38-43).
8. Plaintiffs request in Count II of their complaint that this Honorable Court declare that the policy, custom, and practice of Defendant is unconstitutional in that the correctional officers of the Prison are directing/conducting strip searches of all individuals placed into the Prison without any particularized suspicion that the individuals have either contraband or weapons. (Id. at ¶¶ 44-46).
9. Plaintiffs also set forth a separate cause of action in Count III of their complaint seeking preliminary and permanent injunctive relief, enjoining Defendant from strip searching individuals placed into custody of the Prison absent any particularized suspicion that the individuals have either contraband or weapons. (Id. at ¶¶ 47-51).
10. As a result of the alleged constitutional violation, Plaintiffs seek an order certifying this action as a class action, a judgment against Defendant awarding compensatory damages to each named Plaintiff and each member of the purported
3

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 4 of 10
class, a declaratory judgment declaring that the Defendant’s policy, practice and custom of strip searching all detainees is unconstitutional, a preliminary and permanent injunction seeking to enjoin Defendant from continuing to strip search individuals without reasonable suspicion that such individuals are concealing weapons and/or contraband, attorney’s fees, and punitive damages. (Id. at ¶ 1, p. 14).
11. The standard to be applied in consideration of a motion to dismiss pursuant to Rule 12(b)(6) is well established in our jurisprudence. The court is to accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the Plaintiff. Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270, 272 (3d Cir. 2001).
12. The question before the court on a motion to dismiss is whether the Plaintiff can prove any set of facts in support of his claim that entitles the Plaintiff to relief. Hartford Fire Insurance Company v. California, 113 S. Ct. 2811, 2817 (1993), Ramadan v. Chase Manhattan Corp., 229 F.3d 194-195-96 (3d Cir. 2000).
13. If it is clear from the pleading that a defendant cannot be held liable, then dismissal of all claims against that defendant is appropriate. Labov v. Lalley, 809 F.2d 270 (3d Cir. 1987).
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Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 5 of 10
14. In adjudicating a Rule 12(b)(6) Motion, the district court is not limited to evaluating the Complaint, rather it can also consider documents attached to the complaint, matters of public record, and undisputedly authentic documents. Pension Benefit Guar. Corp. v. White Consol. Industries, 998 F.2d 1192, 1196 (3d Cir. 1993).
15. On its face and as a matter of law, Plaintiffs’ Complaint fails to set forth a claim upon which relief can be granted because the proposed class is overbroad and includes purported members who cannot recover based upon the claims as alleged, i.e. individuals for whom there existed a reasonable suspicion that he/she possessed weapons, possessed drugs, and/or had a criminal history at the time he/she was strip searched.
16. Named Plaintiffs and purported class members lack standing to seek declaratory and injunctive relief because they have not alleged that there is a likelihood that they will be subjected to the complained of conduct in the future.
17. The third purported cause of action set forth in Plaintiffs’ Complaint, which requests an injunction, must be dismissed because such cause of action seeks only a form of relief and it cannot be maintained as an independent cause of action as a matter of law.
18. Plaintiffs cannot recover punitive damages from Defendant as a matter of law based upon the allegations contained in the complaint.
5

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19. Plaintiffs cannot recover on their allegations that Defendant has a blanket strip search policy when, in fact, Defendant has a written policy which sets forth distinct factors for each correctional officer to consider in his/her determination as to whether reasonable suspicion exists prior to any strip search being performed. Plaintiffs’ claims in this regard should be limited to the allegations of a de facto, unconstitutional policy or custom. A true and correct copy of the Prison’s strip search policy with original Affidavit attesting to its authenticity is attached hereto and marked as Exhibit “A”.
WHEREFORE, for the reasons set forth hereinabove, Defendant, County of Dauphin, hereby requests that this Honorable grant its Motion to Dismiss and enter the accompanying order.
6

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 7 of 10

Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C.

Date: October 11, 2007

By: /s/ Frank J. Lavery, Jr. Frank J. Lavery, Jr., Esquire Atty No. PA42370 flavery@laverylaw.com

Date: October 11, 2007 Date: October 11, 2007

By: /s/ Robert G. Hanna, Jr. Robert G. Hanna, Jr., Esquire Atty No. PA17890 rhanna@laverylaw.com
By: /s/ Devon M. Jacob Devon M. Jacob, Esquire Atty No. PA89182 djacob@laverylaw.com

225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Co-counsel for Defendant

Date: October 11, 2007

McNEES, WALLACE & NURRICK LLC
By: /s/ David E. Lehman David E. Lehman, Esquire Atty No. PA15243 dlehman@mwn.com

7

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 8 of 10

Date: October 11, 2007 Date: October 11, 2007 Date: October 11, 2007

By: /s/ James P. DeAngelo James P. DeAngelo, Esquire Atty No. PA62377 jdeangelo@mwn.com
By: /s/ Carol Steinour Young Carol Steinour Young, Esquire Atty No. PA55969 csteinour@mwn.com
By: /s/ Devin Chwastyk Devin J. Chwastyk, Esquire Atty No. PA91852 dchwastyk@mwn.com
100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Co-counsel for Defendant

8

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 9 of 10
CERTIFICATE OF CONCURRENCE/NON-CONCURRENCE I, Frank J. Lavery, Jr., Esquire, hereby certify that I am counsel for the Defendant and that I contacted Robert Keach, III, Esquire, lead counsel for Plaintiffs, to seek Plaintiffs’ concurrence with the foregoing Motion to Dismiss. Mr. Keach advised that Plaintiffs do not concur in the foregoing motion, with the exception that Mr. Keach indicated a willingness to withdraw the claims for punitive damages against Dauphin County in an amended complaint.
Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C.

DATE: October 11, 2007

By: s/ Frank J. Lavery, Jr. Frank J. Lavery, Jr., Esquire 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant

9

Case 1:07-cv-01688-TIV Document 12 Filed 10/11/2007 Page 10 of 10

CERTIFICATE OF SERVICE

I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 11th day of October, 2007, I served a

true and correct copy of the foregoing Motion to Dismiss via U.S. Middle District

Court’s Electronic Case Filing System, addressed as follows:

Alan M. Ross, Esquire Email: amresquire@aol.com

James P. DeAngelo, Esquire jdeangelo@mwn.com

Charles J. LaDuca, Esquire Email: charlesl@cuneolaw.com

Carol Steinour Young, Esquire csteinour@mwn.com

Daniel C. Levin, Esquire Email: dlevin@lfsblaw.com

Devin J. Chwastyk, Esquire dchwastyk@mwn.com

Elmer Robert Keach, III, Esquire Email: bobkeach@keachlawfirm.com

David E. Lehman, Esquire dlehman@mwn.com

Gary E. Mason, Esquire Email: gmason@masonlawdc.com

/s/ Megan L. Renno Megan L. Renno, Legal Secretary to Frank J. Lavery, Jr., Esquire, Robert G. Hanna, Jr., Esquire, and Devon M. Jacob, Esquire
This document has also been electronically filed and is available for viewing and downloading from the ECF system.
10

Case 1:07-cv-01688-TIV Document 12-2 Filed 10/11/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually:

and on behalf of a class of others similarly :

situated,

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

Defendant

:

NO. 1:07-CV-01688-CCC (Complaint filed 9/16/07)
Judge Christopher C. Conner CIVIL ACTION – LAW JURY TRIAL DEMANDED

ORDER

AND NOW, this ______ day of _________, _______, upon consideration of Defendant’s Motion to Dismiss, and Plaintiffs’ response thereto, said Motion is hereby GRANTED and:
1. Plaintiffs’ action is dismissed as a class action; 2. Counts II and III of Plaintiffs’ Complaint are dismissed;

Case 1:07-cv-01688-TIV Document 12-2 Filed 10/11/2007 Page 2 of 2
3. Plaintiffs’ claim for punitive damages as described in paragraph 1 of the Complaint is hereby dismissed; and
4. Any and all allegations and/or forms of recovery based upon the theory that Defendant has a formal blanket strip search policy are stricken.
BY THE COURT:
_________________ J.

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 Case 1:07-cv-01688-TIV Document 13 Filed 10/24/2007 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, et al., Plaintiffs
v.
THE COUNTY OF DAUPHIN, Defendant

: CIVIL ACTION NO. 1:07-CV-1688 : : (Judge Conner) : : : :

ORDER

AND NOW, this 24th day of October, 2007, IT IS HEREBY ORDERED

THAT the undersigned judge is recused from the captioned action. The Clerk of

Court shall reassign the case to another judge. The case management conference

scheduled for October 30, 2007, is hereby CANCELLED.

S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge

 
 Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually:

and on behalf of a class of others similarly :

situated,

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

Defendant

:

NO. 1:07-CV-01688-CCC (Complaint filed 9/16/07)
Judge Thomas I. Vanaskie CIVIL ACTION – LAW JURY TRIAL DEMANDED

DEFENDANT DAUPHIN COUNTY’S MOTION TO DISMISS AMENDED COMPLAINT

AND NOW, comes Defendant, Dauphin County, by and through its attorneys,

Lavery, Faherty, Young & Patterson, P.C. and McNees, Wallace & Nurick LLC,

hereby files this Motion to Dismiss Amended Complaint, and in support thereof

avers as follows:

1. Plaintiffs, Jennifer Reynolds, Ashley McCormick, Herbert Carter, and

Devon Sheppard, both individually and on behalf of a class of others similarly

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 2 of 9
situated, initiated this class action lawsuit with the filing of a civil complaint on September 18, 2007. (Doc. 1).
2. Plaintiffs served their complaint upon Defendant on September 21, 2007.
3. On October 11, 2007, Defendant filed a Motion to Dismiss in response to Plaintiffs’ complaint. (Doc. 12).
4. On October 25, 2007, Defendant filed a brief in support of its Motion to Dismiss. (Doc. 16).
5. On November 20, 2007, Plaintiffs filed an Amended Complaint. (Doc. 24).
6. Plaintiffs’ amended complaint alleges, inter alia, that Dauphin County Prison (hereinafter “Prison”) has a written and/or de facto policy of strip-searching all individuals who enter the Prison regardless of the crime upon which they are charged and without the presence of reasonable suspicion to believe that the individuals are concealing a weapon or contraband. (Id. at ¶ 25).
7. The class that Plaintiffs seek to represent is the following: All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes and were or will be strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date
2

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 3 of 9
on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. (Id. at ¶ 9). 8. Plaintiffs seek class certification pursuant to Rules (23)(b)(2) and 23(b)(3), Federal Rules of Civil Procedure. (Id. at ¶¶ 18, 19). 9. Named Plaintiffs allege that they each were arrested and subsequently strip searched at the Prison. (Id. at ¶¶ 36, 37). 10. Plaintiffs allege in their amended complaint that the strip searches of named Plaintiffs and unnamed members of the purported class violated the Fourth Amendment of the United States Constitution. (Id. at ¶¶ 42, 43). 11. Plaintiffs request in the sole cause of action of their amended complaint, inter alia, that this Honorable Court declare that the policy, custom, and practice of Defendant is unconstitutional in that the correctional officers of the Prison are directing/conducting strip searches of all individuals placed into the Prison without any particularized suspicion that the individuals have either contraband or weapons. (Id. at ¶¶ 47, 51). 12. Plaintiffs also seek seeking preliminary and permanent injunctive relief, enjoining Defendant from strip searching individuals placed into custody of the
3

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 4 of 9
Prison absent any particularized suspicion that the individuals have either contraband or weapons. (Id. at ¶¶ 50).
13. As a result of the alleged constitutional violation, Plaintiffs seek an order certifying this action as a class action, a judgment against Defendant awarding compensatory damages to each named Plaintiff and each member of the purported class, a declaratory judgment declaring that the Defendant’s policy, practice and custom of strip searching all detainees is unconstitutional, a preliminary and permanent injunction seeking to enjoin Defendant from continuing to strip search individuals without reasonable suspicion that such individuals are concealing weapons and/or contraband, and attorney’s fees. (Id. at p. 14).
14. The standard to be applied in consideration of a motion to dismiss pursuant to Rule 12(b)(6) is well established in our jurisprudence. The court is to accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the Plaintiff. Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270, 272 (3d Cir. 2001).
15. The question before the court on a motion to dismiss is whether the Plaintiff can prove any set of facts in support of his claim that entitles the Plaintiff to relief. Hartford Fire Insurance Company v. California, 113 S. Ct. 2811, 2817 (1993), Ramadan v. Chase Manhattan Corp., 229 F.3d 194-195-96 (3d Cir. 2000).
4

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 5 of 9
16. If it is clear from the pleading that a defendant cannot be held liable, then dismissal of all claims against that defendant is appropriate. Labov v. Lalley, 809 F.2d 270 (3d Cir. 1987).
17. On its face and as a matter of law, Plaintiffs’ Complaint fails to set forth a claim upon which relief can be granted because the proposed class is overbroad and includes purported members who cannot recover based upon the claims as alleged, i.e. individuals for whom there existed a reasonable suspicion that he/she possessed weapons, possessed drugs, and/or had a criminal history at the time he/she was strip searched.
18. Named Plaintiffs Jennifer Reynolds, Herbert Carter, and Devon Shepard, and purported class members, lack standing to seek declaratory and injunctive relief because they have not alleged that there is a likelihood that they will be subjected to the complained of conduct in the future.
WHEREFORE, for the reasons set forth hereinabove, Defendant, Dauphin County, hereby requests that this Honorable grant its Motion to Dismiss Amended Complaint and enter the accompanying order.
5

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 6 of 9

Date: December 5, 2007 Date: December 5, 2007 Date: December 5, 2007
Date: December 5, 2007

Respectfully submitted,
Lavery, Faherty, Young & Patterson, P.C.
By: /s/ Frank J. Lavery, Jr. Frank J. Lavery, Jr., Esquire Atty No. PA42370 flavery@laverylaw.com
By: /s/ Robert G. Hanna, Jr. Robert G. Hanna, Jr., Esquire Atty No. PA17890 rhanna@laverylaw.com
By: /s/ Devon M. Jacob Devon M. Jacob, Esquire Atty No. PA89182 djacob@laverylaw.com
225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Co-counsel for Defendant
McNEES, WALLACE & NURICK LLC
By: /s/ David E. Lehman David E. Lehman, Esquire Atty No. PA15243 dlehman@mwn.com

6

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 7 of 9

Date: December 5, 2007 Date: December 5, 2007 Date: December 5, 2007

By: /s/ James P. DeAngelo James P. DeAngelo, Esquire Atty No. PA62377 jdeangelo@mwn.com
By: /s/ Carol Steinour Young Carol Steinour Young, Esquire Atty No. PA55969 csteinour@mwn.com
By: /s/ Devin Chwastyk Devin J. Chwastyk, Esquire Atty No. PA91852 dchwastyk@mwn.com
100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Co-counsel for Defendant

7

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 8 of 9
CERTIFICATE OF CONCURRENCE/NON-CONCURRENCE I, Frank J. Lavery, Jr., Esquire, hereby certify that I am counsel for the Defendant and that I contacted Robert Keach, III, Esquire, lead counsel for Plaintiffs, to seek Plaintiffs’ concurrence with the foregoing Motion to Dismiss. Mr. Keach advised that Plaintiffs do not concur in the foregoing motion.
Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C.

Date: December 5, 2007

By: s/ Frank J. Lavery, Jr. Frank J. Lavery, Jr., Esquire 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant

8

Case 1:07-cv-01688-TIV Document 26 Filed 12/05/2007 Page 9 of 9

CERTIFICATE OF SERVICE

I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young

& Patterson, P.C., do hereby certify that on this 5th day of December, 2007, I served

a true and correct copy of the foregoing Motion to Dismiss Amended Complaint

via U.S. Middle District Court’s Electronic Case Filing System, addressed as

follows:

Alan M. Ross, Esquire Email: amresquire@aol.com

James P. DeAngelo, Esquire jdeangelo@mwn.com

Charles J. LaDuca, Esquire Email: charlesl@cuneolaw.com

Carol Steinour Young, Esquire csteinour@mwn.com

Daniel C. Levin, Esquire Email: dlevin@lfsblaw.com

Devin J. Chwastyk, Esquire dchwastyk@mwn.com

Elmer Robert Keach, III, Esquire Email: bobkeach@keachlawfirm.com

David E. Lehman, Esquire dlehman@mwn.com

Gary E. Mason, Esquire Email: gmason@masonlawdc.com

Alexandra C. Warren, Esquire Email: awarren@cuneolaw.com

/s/ Megan L. Renno Megan L. Renno, Legal Secretary to Frank J. Lavery, Jr., Esquire, Robert G. Hanna, Jr., Esquire, and Devon M. Jacob, Esquire

This document has also been electronically filed and is available for viewing and downloading from the ECF system.
9

 
 Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually:

and on behalf of a class of others similarly :

situated,

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

Defendant

:

NO. 1:07-CV-01688-CCC (Complaint filed 9/16/07)
Judge Thomas I. Vanaskie CIVIL ACTION – LAW JURY TRIAL DEMANDED

DEFENDANT COUNTY OF DAUPHIN’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS THE AMENDED COMPLAINT

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 2 of 23
TABLE OF CONTENTS Table of Contents ........................................................................................................i Table of Authorities .................................................................................................. ii I. Factual Background and Procedural History.........................................................1 II. Statement of Issues Presented ..............................................................................3 III. Standard of Law ..................................................................................................3 IV. Argument ............................................................................................................4
A. Plaintiffs’ purported class is overbroad and contains putative members who cannot obtain relief as a matter of law.................................4
B. Named Plaintiffs Reynolds, Carter, and Shepard, and purported class members lack standing to seek declaratory and injunctive relief because Plaintiffs’ Amended Complaint does not allege that there is a likelihood that they will be subjected to the complained of conduct in the future ...............................13
i

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 3 of 23

TABLE OF AUTHORITIES

Cases

Page

Bell v. Wolfish, 441 U.S. 520; 60 L. Ed. 2d 447; 99 S. Ct. 1861 (1979) ......................................................................................5, 7, 8

Board of Trustees of Bricklayers and Allied Craftsman Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270 (3d Cir. 2001) .................4
Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994) ..............................................7

Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987) .......................................................15

City of Los Angeles v. Lyons, 461 U.S. 95; 75 L. Ed. 2d 675; 103 S. Ct. 1660 (1983) ...........................................................................................14

Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003)....................................14

Conley v. Gibson, 355 U.S. 41; 2 L. Ed. 2d 80; 78 S. Ct. 99 (1957) ......................13

Conte-Bros. Auto. Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221 (3d Cir. 1990)......................................................................................................14
Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005) ...................................................7
Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) ......................................................6

Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) ................................................... 13-14

Hartford Fire Insurance Company v. California, 509 U.S. 602 125 L. Ed. 2d 488; 113 S. Ct. 2801 (1993)................................................................4
Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) .......................................................7
Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984) ...........................................................6

John Does 1-100 v. Boyd, 613 F. Supp. 1514 (D. Minn. 1985)..............................15 Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) .........................................................7

ii

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 4 of 23
Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985).........................................................6 Labov v. Lalley, 809 F.2d 270 (3d Cir. 1987) ...........................................................4 Lau v. Arrow Financial Services, - - - F.R.D. - - -, 2007
WL 2840390 (N.D. Ill. Sept. 28, 2007) ..............................................................12 Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1982)..............................6 Miller v. Mackey Int’l, Inc., 452 F.2d 424 (5th Cir. 1971) ......................................12 Newkirk v. Sheers, 834 F. Supp. 772 (E. D. Pa. 1993) .............................................7 O’Shea v. Littleton, 414 U.S. 488; 38 L. Ed. 2d 674;
94 S. Ct. 669 (1974) .........................................................................................15, 16 Pension Benefit Guar. Corp. v. White Consol. Industries, 998 F.2d 1192 (3d Cir. 1993).....................................................................................4 Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007) .............................................6, 8, 10 Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (E.D. Va. 1980)............................12 Ramadan v. Chase Manhattan Corp., 229 F.3d 194 (3d Cir. 2000) ..........................4 Roe v. Operation Rescue, 919 F.2d 857 (3d Cir. 1990) ..........................................14 Smith v. Montgomery County, Maryland, 643 F. Supp. 435 (D. Md. 1986)............9 Smith v. Montgomery County, 573 F. Supp. 604 (D. Md. 1983) ...........................15 Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985)....................................6 Strzakowlski v. GMC, No. 04-4740, 2005 U.S. Dist. LEXIS 18111, *26
(D.N.J. Aug. 16, 2005)........................................................................................14 Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004)...................................................8 U. S. v. Willoughby, 860 F.2d 15 (2d Cir. 1988) ......................................................8
iii

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 5 of 23
Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993)..................................................8 Statutes and Rules F. R. Civ. P. 23(b)(2) and (3).................................................................................4, 12 35 P.S. §780-113(a)(16), (30), (31), (32).................................................................10 18 Pa. C.S. §908.......................................................................................................10
iv

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiffs, Jennifer Reynolds, Ashley McCormick, Herbert Carter, and Devon
Shepard, both individually and on behalf of a class of others similarly situated, initiated this class action lawsuit with the filing of a civil complaint on September 18, 2007. (Complaint, Doc. 1). On November 20, 2007, Plaintiffs filed an amended complaint. (Amended Complaint, Doc. 24). Plaintiffs’ amended complaint alleges that Plaintiffs Reynolds, Carter and Shepard were arrested on September 2, 2007 for a violation of the Harrisburg City Code. (Id. at ¶ 36). Plaintiffs’ amended complaint further alleges that Reynolds, Carter and Shepard were transported to Dauphin County Prison (hereinafter “Prison”) because they could not post bond and that they were strip searched upon their admittance to the Prison. (Id.).
Plaintiffs’ amended complaint avers that Plaintiff Ashley McCormick was arrested on September 13, 2007 for failing to pay parking tickets issued by the City of Harrisburg. (Id. at ¶ 37). Following McCormick’s arrest, Plaintiffs also aver that McCormick was transported to Dauphin County Prison where she was strip searched upon being admitted. (Id.).
Plaintiffs’ amended complaint claims, inter alia, that Defendant has a written and/or de facto policy of strip-searching all individuals who enter the Prison
1

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 7 of 23
regardless of the crime upon which they are charged and without the presence of reasonable suspicion to believe that the individuals are concealing a weapon or contraband. (Id. at ¶ 25). Plaintiffs allege in their amended complaint that the strip searches of named Plaintiffs and unnamed members of the purported class violated the Fourth Amendment of the United States Constitution. (Id. at ¶¶ 42-51). Plaintiffs request that this Honorable Court declare that the policy, custom, and practice of Defendant is unconstitutional because the correctional officers of the Prison are directing/conducting strip searches of all individuals placed into the Prison without any particularized suspicion that the individuals have either contraband or weapons. (Id.). Plaintiffs also seek preliminary and permanent injunctive relief, enjoining Defendant from strip searching individuals placed into custody of the Prison absent any particularized suspicion that the individuals have either contraband or weapons. (Id. at ¶¶ 50). As a result of the alleged constitutional violation, Plaintiffs seek: (1) an order certifying this action as a class action; (2) a judgment against Defendant awarding compensatory damages to each named Plaintiff and each member of the purported class; (3) a declaratory judgment declaring that the Defendant’s policy, practice and custom of strip searching all detainees is unconstitutional; (4) a preliminary and permanent injunction seeking to enjoin Defendant from continuing to strip search individuals without reasonable
2

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 8 of 23
suspicion that such individuals are concealing weapons and/or contraband; and, (5) attorney’s fees. (Id. at p. 14). II. STATEMENT OF ISSUES PRESENTED
A. Whether on its face and as a matter of law, Plaintiffs’ amended complaint fails to state a claim upon which relief may be granted as to individuals comprising a substantial portion of the purported class because, as a matter of law, reasonable suspicion existed to strip search those individuals. [suggested answer in the affirmative]
B. Whether named Plaintiffs Reynolds, Carter, and Shepard, and purported class members, lack standing to seek declaratory and injunctive relief because Plaintiffs’ amended complaint does not allege that there is a likelihood that they will be subjected to the complained of conduct in the future. [suggested answer in the affirmative]
III. STANDARD OF LAW The standard to be applied in consideration of a motion to dismiss pursuant to
Rule 12(b)(6) is well established in our jurisprudence. The court is to accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the Plaintiff. Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270, 272 (3d Cir. 2001). The question before the court on a motion to dismiss is whether the plaintiff can prove any set of facts in support of his claim that entitles the plaintiff to relief. Hartford Fire Insurance Company v. California, 509 U.S. 602; 125 L. Ed. 2d 488;
3

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 9 of 23
113 S. Ct. 2801 (1993); Ramadan v. Chase Manhattan Corp., 229 F.3d 194-195-96
(3d Cir. 2000). If it is clear from the pleading that a defendant cannot be held liable,
then dismissal of all claims against that defendant is appropriate. Labov v. Lalley,
809 F.2d 270 (3d Cir. 1987). In adjudicating a Rule 12(b)(6) Motion, the district
court is not limited to evaluating the complaint; rather, it can also consider
documents attached to the complaint, matters of public record, and undisputedly
authentic documents. Pension Benefit Guar. Corp. v. White Consol. Industries, 998
F.2d 1192, 1196 (3d Cir. 1993).
IV. ARGUMENT
A. Plaintiffs’ purported class is overbroad and contains putative members who cannot obtain relief as a matter of law.
Plaintiffs seek class certification pursuant to Rules (23)(b)(2) and 23(b)(3),
Federal Rules of Civil Procedure. (Doc. 1 at ¶¶ 18, 19). The class that Plaintiffs
seek to represent is the following:
All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes and were or will be strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates,
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legal representatives, heirs, successors, employees or assignees. (Id. at ¶ 9). The United States Supreme Court has held that strip searches of arrestees are not per se unconstitutional. Bell v. Wolfish, 441 U.S. 520, 559; 60 L. Ed. 2d 447, 481; 99 S. Ct. 1861, 1884 (1979). The Court in Wolfish, however, recognized that arrestees have a legitimate privacy interest in not being strip searched, and explained that the government must have a reasonable justification for conducting such searches: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for a particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. (internal citations omitted). The Wolfish decision acknowledged that halting the smuggling of contraband into a detention facility was a legitimate government interest that could justify strip and body cavity searches of pretrial detainees, and held that prison administrators should be afforded discretion in how best to prevent such smuggling. Id. at 559 and n. 40. Assuming, without holding, that pretrial detainees retain some Fourth Amendment rights upon their commitment to a detention facility, the Wolfish court held that body cavity searches of pretrial
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detainees following contact visits with any person from outside the institution did not violate the Fourth Amendment.
Interpreting Wolfish, most federal circuit courts have held that a "blanket" strip search policy, calling for the search of all arrestees without any individualized justification, violates the Fourth Amendment of the United States Constitution. See Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1982). The prevailing interpretation of Wolfish is that an arrestee to be detained in the general jail population has a constitutional right under the Fourth Amendment to be free from strip searches conducted without reasonable suspicion that the detainee is concealing weapons, drugs, or other contraband, and, therefore, blanket strip searches of all arrestees, without individualized reasonable suspicion, are unconstitutional. See, e.g., Powell v. Barrett, 496 F.3d 1288, 1310 (11th Cir. 2007). A strip search of a nonviolent arrestee is justified where the government has reasonable individualized suspicion that the detainee is carrying or concealing contraband. Newkirk v. Sheers, 834 F.Supp. 772, 788 (E.D.Pa. 1993). Individualized suspicion sufficient to warrant such a strip search may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and any prior arrest record. Id.
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This interpretation of Wolfish, however, has not been adopted by the United States Supreme Court or the United States Court of Appeals for the Third Circuit, and has been questioned by other courts. See, e.g., Hicks v. Moore, 422 F.3d 1246, n. 5 (11th Cir. 2005); Evans v. Stephens, 407 F.3d 1272, 1278-79 (11th Cir. 2005) (en banc) ("Most of us are uncertain that jailers are required to have a reasonable suspicion of weapons or contraband before strip searching – for security and safety purposes – arrestees bound for the general jail population . . . Never has the Supreme Court imposed such a requirement."); Johnson v. Phelan, 69 F.3d 144, 152-153 (7th Cir. 1995) (Posner, J., concurring and dissenting) ("[The Fourth] Amendment has been held inapplicable to searches and seizures within prisons, and if applicable to jails housing pretrial detainees as distinct from convicted defendants – an unsettled question – is only tenuously so . . ."); Brothers v. Klevenhagen, 28 F.3d 452, 457 and n. 6 (5th Cir. 1994) (“The Court [in Wolfish] refused to concede that the Fourth Amendment applies to [pretrial detainees] and concluded that no protection would be afforded even if it did apply."); Valencia v. Wiggins, 981 F.2d 1440, 1444-45 (5th Cir. 1993); U.S. v. Willoughby, 860 F.2d 15, 21 (2d Cir. 1988).
Even under the expansive prevailing interpretation of Wolfish, which Dauphin County does not concede is correct, Plaintiffs fail to state a claim with regard to a substantial portion of their proposed class. Those courts that have held that individualized reasonable suspicion is required before the government may strip
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search an arrestee have conceded that such reasonable suspicion may be established
by the circumstances of an arrest or the nature of the charges brought against the
arrestee. See Powell v. Barrett, 496 F.3d 1288, 1310 (11th Cir. 2007); Tardiff v.
Knox County, 365 F.3d 1, 5 n.6 (1st Cir. 2004) (noting that categories such as
current charge or criminal history present a permissible way to establish reasonable
suspicion).
In Powell, the court held that the circumstances of a person's arrest may
support reasonable suspicion to justify a strip search upon booking into jail,
including, for example, the possession of a weapon by a detainee at the time of
arrest. Id. The Powell court also held that the nature of an arrest charge itself,
independent of the facts surrounding the arrest, can give rise to reasonable
suspicion; therefore, it is objectively reasonable to conduct a strip search of a person
arrested for an offense involving weapons, drugs, or violence before placing the
arrestee into the general jail population. Id. at 1311. This is true of all crimes
involving weapons, drugs, or violence, regardless of the level of the offense. Id.
In the end, balancing this serious intrusion against the government's compelling interest in jail security is unsusceptible of precise evidentiary resolution, undiscernible in the language of the Constitution or the intent of its framers. But the Court has the duty to draw the line somewhere. The Court holds that reasonable suspicion exists to strip search all felony arrestees, and all temporary detainees arrested for misdemeanor offenses that involve weapons or contraband. Reasonable suspicion also exists to strip search all temporary detainees with prior
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records of convictions or unresolved arrests for felony offenses, or for misdemeanors involving weapons or contraband. Other federal courts appear to have uniformly drawn the line in the same place. Smith v. Montgomery County, Maryland, 643 F.Supp. 435, 439 (D.Md. 1986) (examining cases). In light of this precedent, it is clear that Plaintiffs fail to state a cause of action as to a substantial portion of their proposed class. Plaintiffs’ proposed class includes persons as to whom reasonable suspicion existed, arising by the very nature of the crime the person was charged or their past criminal history, i.e. those detainees whose charges upon intake implicated either weapons or drugs, or who had a past conviction for a felony, drug or weapons charge. Those persons are included in Plaintiffs’ broad class definition under “persons…charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes.” The following is a small sample of misdemeanors covered under Plaintiffs’ proposed class definition where there exists reasonable suspicion to search: (1) manufacture, sale or delivery of a controlled substance, 35 P.S. § 780-113(a)(30); (2) knowingly or intentionally possessing a controlled or counterfeit substance, 35 P.S. § 780-113(a)(16); (3) possession of a small amount of marijuana only for personal use, 35 P.S. § 780-113(a)(31); (4) the use of, or possession with intent to use, drug paraphernalia 35 P.S. § 780-113(a)(32); (5) to make, repair, sell or
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otherwise deal in, use, or possess any offensive weapons, with the definition of offensive weapons including metal knuckles, dagger, knife, razor or cutting instrument, 18 Pa.C.S. § 908.
As to persons who were charged with such crimes, reasonable suspicion justifying a strip search existed. Importantly, "it is immaterial whether the specific arresting officer or jailer actually and subjectively had reasonable suspicion, or whether anyone at the time actually conducted a reasonable suspicion analysis. Powell, 496 F.3d at 1310 (emphasis in original). Instead, the question for the Court is "whether, given the circumstances, reasonable suspicion objectively existed to justify the search." Id. Therefore, as a matter of law, the strip searches of persons charged with crimes involving weapons, violence, or drugs, and those persons with past convictions or unresolved arrests for felonies or crimes involving violence, weapons, or drugs, were objectively justified by reasonable suspicion and did not violate the Fourth Amendment. Such persons fail to state a claim for a constitutional violation, cannot be included in any class definition, and cannot obtain relief based upon the claims as alleged.
At most, Plaintiffs’ class could be comprised of the following: All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes and were or will be strip searched upon their entry into the Dauphin County Prison, pursuant to the policy, custom and
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practice of the County of Dauphin, where such intake crimes did or do not implicate either weapons, violence or drugs, and where such persons did or will not, at the time of admission to Dauphin County Prison, have a past conviction or unresolved arrest for a felony or charge involving drug, weapons, or violence. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. (emphasis added)
It is anticipated that Plaintiffs will argue that Defendant’s contention that
Plaintiffs’ class is overbroad is premature and can only be addressed at the class
certification stage of this matter. This, however, is not a question of whether the
proposed class meets the procedural requirements to justify class certification;
rather, this is simply a question of whether some members of the proposed class are
incapable of stating a claim upon which relief may be granted.
The determination whether there is a proper class does not depend on the existence of a cause of action. A suit may be a proper class action, conforming to Rule 23, and still be dismissed for failure to state a cause of action.
Miller v. Mackey Int'l, Inc., 452 F.2d 424, 427 (5th Cir. 1971).
Defendant's contention that a substantial portion of the proposed class
members fail to state a claim cannot be reserved for the class certification stage,
because the Court is forbidden from inquiring into the merits of Plaintiffs’ claims at
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Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 17 of 23
that stage. The class certification stage is reserved for an inquiry into whether the
proposed class meets the procedural requirements of Rule 23.
Rule 23 delineates the scope of inquiry to be exercised by a district judge in passing on a class action motion. Nothing in that Rule indicates the necessity or the propriety of an inquiry into the merits. Indeed, there is absolutely no support in the history of Rule 23 or legal precedent for turning a motion under Rule 23 into a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment by allowing the district judge to evaluate the possible merit of the plaintiff's claims at this stage of the proceedings. Failure to state a cause of action is entirely distinct from failure to state a class action.
Id. (emphasis added). See also Lau v. Arrow Financial Services, --- F.R.D. ---, 2007
WL 2840390, *4 (N.D.Ill. Sept. 28, 2007) (merits of each potential class members'
claims could not be addressed at class certification stage); Pruitt v. Allied Chemical
Corp., 85 F.R.D. 100, 104 (E.D.Va. 1980) (court could not consider motion to
dismiss, which offered potential to reduce the class to more manageable numbers, at
the class certification stage, because propriety of class certification under Rule 23
was separate from consideration of merits under Rule 12).
Defendant recognizes that claims, including class claims, should not be
dismissed on the pleadings "unless 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 v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 84, 78 S. Ct. 99, 102 (1957).
Here, however, it can be determined from the face of the Plaintiffs’ complaint that
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the law cannot provide recovery based upon the claims alleged, which is the appropriate consideration when determining a Motion to Dismiss. Defendant believes that a facial review of Plaintiffs’ complaint by the Court will reveal that Plaintiffs’ complaint cannot provide recovery for certain putative members of its class based upon any possible set of facts even if proven to be true. Therefore, for the reasons discussed supra, Defendant respectfully requests that this Court conclude that Plaintiffs’ complaint fails to state a claim as to a substantial portion of the proposed class, and dismiss it as such.
B. Named Plaintiffs Reynolds, Carter, and Shepard, and purported class members lack standing to seek declaratory and injunctive relief because Plaintiffs’ amended complaint does not allege that there is a likelihood that they will be subjected to the complained of conduct in the future.
A review of standing is a threshold inquiry; and the proper disposition of a case challenging standing is a motion to dismiss. Hassine v. Jeffes, 846 F.2d 169, 176 (3d Cir. 1988). Each member of a putative class must individually possess a right to make a claim in a matter. Strzakowlski v. GMC, No. 04-4740, 2005 U.S. Dist. LEXIS 18111, *26 (D.N.J. Aug. 16, 2005). Thus, a class cannot be so broad as to include members who have no standing to bring suit on their on accord. Id.; See Conte-Bros. Auto. Inc. v. Quaker State-Slick 50, Inc. 165 F.3d 221 (3d. Cir. 1998) (affirming district court’s decision to grant defendant’s motion to dismiss because putative class members lacked standing based upon the claims alleged in
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complaint). Furthermore, a court may strike class action allegations prior to discovery when presented with a Rule 12(b)(6) motion. See Clark v. McDonald's Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003).
In addition to meeting the basic requirements for standing, a plaintiff must also meet the preconditions for asserting an injunctive claim in a federal forum. See City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). To establish standing in an action for declaratory or injunctive relief, a plaintiff must show that he or she is likely to suffer future injury from the defendant's illegal conduct. Roe v. Operation Rescue, 919 F.2d 857, 864 (3d Cir. 1990). Past illegal conduct is insufficient to warrant injunctive or declaratory relief unless it is accompanied by "continuing, present adverse effects." City of Los Angeles, 461 U.S. at 102, 75 L. Ed. 2d at 684, 103 S. Ct. at 1665. Declaratory relief is unavailable to a plaintiff who has alleged nothing more than exposure to past unconstitutional state action. Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987).
Several courts in cases challenging the constitutionality of strip search policies have held that the plaintiffs lacked standing to pursue injunctive relief because they cannot show any likelihood that they will be arrested again. See John Does 1-100 v. Boyd, 613 F. Supp. 1514 (D.Minn. 1985); Smith v. Montgomery County, 573 F. Supp. 604 (D.Md. 1983). The plaintiffs in John Does 1-100, similar to the Plaintiffs in this action, challenged the constitutionality of strip searches at a
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county detention facility. The district court, relying primarily on the Supreme Court's decision in Lyons, held that the plaintiff lacked standing to seek injunctive relief against the detention center's strip search policy. John Does 1-100, 613 F. Supp. at 1529. The court noted that the “named plaintiffs cannot establish a ‘credible threat’ that they will be arrested again." Id. The court thus concluded that the plaintiffs lacked standing with respect to injunctive relief.
In O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), a challenge to discriminatory conduct in the administration of a county criminal justice system, the Supreme Court looked to this same factor in holding that the plaintiffs lacked standing to seek an injunction:
[H]ere the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. . . . [w]e assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners. O’Shea, 414 U.S. at 496-97, 38 L. Ed. 2d at 683, 94 S. Ct. at 676. While Plaintiffs in the instant case may be able to allege that if they are arrested and detained again they will be strip searched, they cannot show any likelihood that they will in fact be arrested again. Plaintiffs Reynolds, Carter, and Shepard have not alleged that they will not conduct their future activities within the parameters of the law. Plaintiffs essentially allege that they have been exposed to
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past unconstitutional action, i.e. that they were subject to an unconstitutional strip search at the Prison. Therefore, Plaintiffs Reynolds, Shepard, and Carter, and putative class members, do not have standing to seek injunctive and declaratory relief based upon the allegations set forth in their amended complaint. Thus, such claims for relief must be dismissed.

WHEREFORE, for the reasons set forth hereinabove, Defendant, County of Dauphin, hereby requests that this Honorable grant its Motion to Dismiss and enter the accompanying order.

Date: December 5, 2007 Date: December 5, 2007 Date: December 5, 2007

Respectfully submitted,
Lavery, Faherty, Young & Patterson, P.C.
By: /s/ Frank J. Lavery, Jr. Frank J. Lavery, Jr., Esquire Atty No. PA42370 flavery@laverylaw.com
By: /s/ Robert G. Hanna, Jr. Robert G. Hanna, Jr., Esquire Atty No. PA17890 rhanna@laverylaw.com
By: /s/ Devon M. Jacob Devon M. Jacob, Esquire Atty No. PA89182 djacob@laverylaw.com
16

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 22 of 23

Date: December 5, 2007 Date: December 5, 2007 Date: December 5, 2007 Date: December 5, 2007

225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Co-counsel for Defendant
McNEES, WALLACE & NURICK LLC
By: /s/ David E. Lehman David E. Lehman, Esquire Atty No. PA15243 dlehman@mwn.com
By: /s/ James P. DeAngelo James P. DeAngelo, Esquire Atty No. PA62377 jdeangelo@mwn.com
By: /s/ Carol Steinour Young Carol Steinour Young, Esquire Atty No. PA55969 csteinour@mwn.com
By: /s/ Devin Chwastyk Devin J. Chwastyk, Esquire Atty No. PA91852 dchwastyk@mwn.com
100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Co-counsel for Defendant

17

Case 1:07-cv-01688-TIV Document 27 Filed 12/05/2007 Page 23 of 23

CERTIFICATE OF SERVICE

I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young

& Patterson, P.C., do hereby certify that on this 5th day of December, 2007, I served

a true and correct copy of the foregoing Brief in Support of its Motion to Dismiss

Amended Complaint via U.S. Middle District Court’s Electronic Case Filing

System, addressed as follows:

Alan M. Ross, Esquire Email: amresquire@aol.com

James P. DeAngelo, Esquire jdeangelo@mwn.com

Charles J. LaDuca, Esquire Email: charlesl@cuneolaw.com

Carol Steinour Young, Esquire csteinour@mwn.com

Daniel C. Levin, Esquire Email: dlevin@lfsblaw.com

Devin J. Chwastyk, Esquire dchwastyk@mwn.com

Elmer Robert Keach, III, Esquire Email: bobkeach@keachlawfirm.com

David E. Lehman, Esquire dlehman@mwn.com

Gary E. Mason, Esquire Email: gmason@masonlawdc.com

Alexandra C. Warren, Esquire Email: awarren@cuneolaw.com

/s/ Megan L. Renno Megan L. Renno, Legal Secretary to Frank J. Lavery, Jr., Esquire, Robert G. Hanna, Jr., Esquire, and Devon M. Jacob, Esquire

This document has also been electronically filed and is available for viewing and downloading from the ECF system.
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 Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 1 of 17

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

______________________________

:

JENNIFER REYNOLDS, et al., :

Civil Action No. 1:07-CV-01688

:

:

Judge Thomas I. Vanaskie

Plaintiffs,

:

:

- vs -

:

(Complaint Filed 9/16/07)

:

THE COUNTY OF DAUPHIN :

CIVIL ACTION - LAW

:

Defendant.

:

JURY TRIAL DEMANDED

_____________________________ :

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT

Dated: January 8, 2008

Respectfully submitted,
s/ Elmer Robert Keach, III
________________________________ Elmer Robert Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P. O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718
Charles J. LaDuca, Esquire Alexandra C. Warren, Esquire (Attny. I.D. No. 93651) Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 2 of 17
Alan M. Ross, Esquire Pennsylvania Supreme Court ID No. 81301 Law Offices of Alan M. Ross, LLC 2001 North Front Street, Suite 220 Harrisburg, PA 17102 Telephone: 717.238.6311
Daniel C. Levin, Esquire Pennsylvania Supreme Court ID No. 80013 Levin, Fishbein, Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500
Gary E. Mason, Esquire Nicholas A. Migliaccio, Esquire THE MASON LAW FIRM, L.L.P.. 1225 19th Street, NW Suite 600 Washington, DC 20036 202.429.2290
Alexander E. Barnett, Esquire THE MASON LAW FIRM, L.L.P.. 1120 Avenue of the Americas Suite 4019 New York, NY 10036 212.362.5770

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 3 of 17
INTRODUCTION Defendant Dauphin County’s Motion to Dismiss this action is a study in irony and inconsistency. The County maintains, in the absence of any discovery and prior to class certification in this matter, that they had reasonable suspicion to strip search “a substantial portion of [the] proposed class.” (Defendants’ Brief, p. 9). Without considering the allegations of the Plaintiffs’ Amended Complaint, which clearly state that all detainees admitted to the Dauphin County Jail are strip searched regardless of criminal charge or individualized reasonable suspicion, (Amended Compl., ¶¶ 24-35), the County makes this bold claim and provides the Court with a copy of its written strip search policy for justification. Obviously, the County’s experienced counsel is well aware that the Court cannot consider matters beyond the pleadings when considering their Motion to Dismiss, but since the County wants to proffer its policy anyway, the Plaintiffs have no choice to but reciprocate. Attached to this motion the Court will find the deposition of Warden Dominick DeRose, the designated deponent of Defendant Dauphin County, as well as a “post order” describing the job functions of a Dauphin County “Booking/Receiving Officer.” (Ex. A, Ex. B). Warden DeRose’s transcript, and the “Post Order,” tell a distinctly different story that the factual recitation provided by the Defendant in their motion papers. In fact, Warden DeRose admits that Dauphin County illegally strip searches the vast majority of pretrial detainees admitted to the Dauphin County Jail, and this admission lends itself in support of the Plaintiffs’ allegations – that all detainees are uniformly strip searched, regardless of the requirements of the County’s written policy, their criminal charge or individualized reasonable suspicion. (DeRose, pp. 57-59, 63).
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Warden DeRose testified that the County believes reasonable suspicion exists to strip search pre-trial detainees, including those charged with not paying traffic tickets, if they are commingled with other detainees prior to their arrival at the Dauphin County Prison, or commingled while they are awaiting admission to the facility in a series of holding cells on site. (DeRose, pp. 59, 63) (discussing, at page 63, the use of a “paddy wagon” for transports from the City of Harrisburg). Three of the four class representatives were strip searched on this basis. (Amended Compl., ¶¶ 32-33, Ex. A). These searches are patently illegal and unnecessary. See, for example, Calvin v. Sheriff of Will County, 405 F. Supp.2d 933, 942-943 (N.D. Ill. 2005) (intermingling alone insufficient to justify search, blanket strip searches improper where “less invasive searches or other detention practices could obviate the need for a strip search”); Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir. 1989) (“intermingling alone has never been found to justify such a search without consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband to the institution”).
The “Post Order” also demonstrates that all pre-trial detainees admitted to the Dauphin County Jail are subjected to a uniform strip search to “check for contraband and/or injuries … [as well as] body vermin.” (Ex. B). The Post Order, as well as a similar training outline also requiring blanket strip searches “after arraignment,” is still in use today at the Dauphin County Jail. (DeRose, pp. 165-166). Warden DeRose confirmed that the single largest group of individuals admitted to the Dauphin County Jail is not felons or other hardened criminals, but individuals who could not pay their child support. (DeRose, pp. 151-52).
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The basis for the County’s claim for dismissal is that it can, now, supposedly demonstrate a post hoc basis to strip search some members of the class based on criminal charge or past criminal history, and that this effort at Monday morning quarterbacking should somehow carry the day in the absence of any discovery. The County requests the dismissal of some nebulous, unidentified, and, without discovery, undeterminable percentage of claims brought by absent class members. This claim is premature, given that no class certification motion has been filed and no discovery has been taken. It is also contrary to a range of case law, including several cases from this judicial circuit, detailing that a municipality must have individualized reasonable suspicion to strip search a detainee at the time the search is conducted, and cannot engage in an effort, after the institution of litigation, to justify strip searches post hoc. Most importantly, this claim is nonsense in light of Warden DeRose’s testimony, which confirms that no effort is made by Dauphin County to determine a pre-trial detainee’s “past criminal history, i.e. those detainees … who had a past conviction for a felony, drug or weapons” prior to their being illegally strip searched. (Defendant’s Brief, p. 9; DeRose, p. 44-52). Instead, Warden DeRose confirmed that the Corrections Officers conducting these illegal strip searches do not have access to criminal history information. (DeRose, p. 44-45, 49). It is also nonsense in light of the “Post Order,” which requires blanked strip searches.
Finally, the Defendant maintains that three of the class representatives lack standing to seek injunctive relief, concede that the fourth one does, but absurdly demand that the Court engage in a complicated standing analysis now, without discovery. Suffice it to say, the case authority addressing class actions brought to address the wholesale and willful violation of federally protected civil rights makes clear that class representatives
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have standing to seek injunctive relief on behalf of a prospective class even if they, individually, may lack standing to do so. This is especially true if the class representative seeks to challenge the official policies or practices of a municipal defendant.
One Circuit Court has referred to the blanket strip and visual cavity searches at issue in this case as being “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission…” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). The Plaintiffs plan to put a stop to these illegal and degrading practices shortly, but regrettably cannot do so now prior to taking appropriate discovery. Regardless, the County’s motion seeking “dismissal” of this action should be denied by this Court.
ARGUMENT POINT I
THE COUNTY’S REQUEST TO DISMISS THE CLAIMS OF ABSENT CLASS MEMBERS IS BOTH PREMATURE AND CONTRARY TO CASE LAW FROM
THIS JUDICIAL CIRCUIT. The County acknowledges that blanket strip search policies/practices are unconstitutional. The Plaintiffs appreciate this concession, as the Courts of this judicial circuit, and every other circuit, have held as much. See, Newkirk v. Sheers, 834 F. Supp. 772, 789-90 (E.D. Pa. 1993); Wood v. Hancock County Sheriff’s Department, 354 F.3d 57, 62-63 (1st Cir. 2003); Weber v. Dell, 804 F.2d 796, 801 (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, 1253 (6th Cir.), cert. denied, 493 U.S. 977 (1989); Mary Beth G., 723 F.2d at 1273; Jones v. Edwards, 770 F.2d 739,
4

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 7 of 17
742 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir. 1993); Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). In fact, the unanimous Federal case law on the strip searches of pre-trial detainees makes clear that such searches must be based on “particularized reasonable suspicion that the detainee is concealing a weapon or harboring contraband or drugs.” Newkirk, 834 F. Supp. at 791. Several class actions addressing the use of illegal strip searches at local jails have been successfully prosecuted across the country, including four class settlements and two additional class certifications achieved by proposed class counsel in this action. See, Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y.), aff’d, 2005 WL 3117194 (2d Cir. 2005) (certification in strip search class action litigated by co-lead counsel in this case; later settled for common fund); Kahler v. County of Rensselaer, No. 03-CV-1324 (TJM/DRH), 2005 WL 1981300 (N.D.N.Y. August 17, 2005) (settlement negotiated by co-lead counsel in this case); McDaniel v. County of Schenectady, No. 04-CV-757 (GLS/RFT) (N.D.N.Y. November 29, 2006) (Exhibit C) (settlement negotiated by co-lead counsel); Kelsey v. County of Schoharie, 2007 WL 603406 (N.D.N.Y. February 21, 2007) (class certification achieved by co-lead counsel); Mitchell v. County of Clinton, 2007 WL 1988716 (N.D.N.Y. July 5, 2007) (class certification achieved by co-lead counsel); Hicks v. County of Camden, 05-CV-1857 (JHR/JS) (D.N.J. December 17, 2007) (settlement negotiated by co-lead counsel in this case) (Exhibit D); Dodge v. County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005); McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005); Haney v. Miami-Dade Co., No. 04-20526-CIV, 2004 WL 2203481 (S.D. Fla. August 24, 2004); Mack v. Suffolk Co., 191 F.R.D. 16 (D. Mass. 2000); Bynum v. District
5

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 8 of 17
of Columbia, 384 F. Supp.2d 342 (D.D.C. 2005); Nilsen v. York Co., 400 F. Supp.2d 266 (D. Me. 2005) (summarizing settlements). The U.S. District Court for the Northern District of New York has also awarded summary judgment and a permanent injunction to a class of individuals, like those here, who were illegally strip searched upon admission to a local jail. Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006).
The County has no basis to presently dismiss this action in its entirety given this overwhelming case authority; instead, it chooses to quibble over the class definition prior to providing the Plaintiffs with an opportunity to take discovery. The County implicitly concedes that the claims of the class representatives are perfectly appropriate, and should not be dismissed. In fact, there was no reasonable suspicion to strip search the class representatives at all. None of them has any significant criminal history. Three representatives were strip searched for “assembling without a permit” on McCormick Island in Harrisburg during the Labor Day weekend; one was strip searched for not paying her parking tickets. (Amended Compl., ¶¶ 3-6, 33-34). All but one was strip searched because they were supposedly commingled with other detainees at the Harrisburg Police Department or while being detained at the Jail, in violation of their constitutional rights. (Amended Compl., Ex. A). The fourth, Devon Sheppard, a doctoral candidate in biophysics at Johns Hopkins, was strip searched while menstruating because she “appeared to be concealing contraband.” She was also forced to remove her tampon while being watched by a Corrections Officer. In short, the strip searches imposed upon the class representatives “could not have been more degrading.” Ford v. City of Boston, 154 F. Supp.2d 131, 133 (D. Mass. 2001).
6

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 9 of 17
The County’s main argument regarding a limitation on the class size is that they can purportedly demonstrate, after the fact, a justification to strip search some members of the proposed class based on their criminal charges or past criminal history. The County proposes, albeit without any clarity or specificity, that the class be reduced and/or the class definition be redefined based on their claim that reasonable suspicion can be demonstrated for some class members post hoc. The County’s arguments ignore the Plaintiffs’ Amended Complaint, which makes clear that the County has a blanket policy, or, in the alternative, a blanket practice, of strip searching all detainees admitted to the Dauphin County Jail. They also ignore their own written policies, as reflected in a “Post Order,” that all detainees should be strip searched regardless of their individual circumstances. (Keach Affirmation, Exhibit B). While the Defendant directs the Court to case precedent from outside this judicial circuit to indicate their right to provide post hoc justifications for strip searches, that case authority has been ostensibly ignored by the majority of Federal courts.
The burden to establish reasonable suspicion relative to certain categories of crimes and/or individual pre-trial detainees lies with the Defendant. See, Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) (probable cause is an affirmative defense, the burden of proof of which is on the defendant); Mack v. County of Suffolk, 191 F.R.D. 16, 24 (D. Mass. 2000) (“given that these women were routinely strip searched, the burden rests on Defendants to demonstrate that particular searches were reasonable”). Assuming, arguendo, that the Court will consider the County’s written policy now (and that it will ignore the Defendant’s “Post Order,” conveniently not provided in their motion submission), and will accept the County’s unilateral representation that
7

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 10 of 17
misdemeanants charged with weapons or drug offenses are uniformly searched—and
others are not—that does not mandate the dismissal of this action in light of the
allegations of the Amended Class Action Complaint. Another Federal court in this
judicial circuit, in rejecting the “blanket risk” approach advocated by the County and
detailed in Smith v. Montgomery County, 643 F. Supp. 435 (D. Md. 1986), held as
follows:
[T]his court believes that the blanket risk approach [allowing for blanket strip searches for certain categories of crimes] adopted by the Smith court, if it can ever exculpate a defendant who conducts a strip search notwithstanding the absence of any suspicion that the arrestee is concealing weapons or contraband, can do so only when the jail actually adopted a policy that permits only those persons arrested on felonies or on charges involving weapons or contraband to be searched without individualized suspicion, and affirmatively requires individualized suspicion with regard to other arrestees… However, when an arrestee charged with a felony or a misdemeanor involving weapons or contraband is strip searched pursuant to a policy encompassing all arrestees, regardless of the nature of their offenses, and where it is conceded that no suspicion regarding the particular arrestee existed, the requisite justification for the search is lacking; neither the general policy nor its particular application is supportable.
Davis v. County of Camden, 657 F. Supp. 396, 400-401 (D.N.J. 1987). The District of
New Jersey further held that an effort to demonstrate reasonable suspicion after the fact
(as suggested in the Defendant’s motion papers) for certain arrestees was “ingenious but
ultimately flawed” when the actual practices of the municipality in question required
blanket strip searches. Davis, 657 F. Supp. at 400. See also, Doe v. Calumet City, 754 F.
Supp. 1211, 1220 (N.D. Ill. 1990) (defendant must show “reasonable basis” at time of
strip search to demonstrate reasonable suspicion); Gonzalez v. City of Schenectady, 141
F. Supp.2d 304, 309 (N.D.N.Y. 2001) (describing an effort to establish reasonable
suspicion after fact as being “absurd”); Calvin v. Sheriff of Will County, 2004 WL
8

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 11 of 17
1125922, *4 (N.D. Ill. May 17, 2004) (“the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriff’s policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment rights.”).
Here, Dauphin County’s written policy may well require the strip searching of all detainees based on certain categories of criminal charges, but that does not end the inquiry. First, the Plaintiffs’ Amended Complaint makes clear that, notwithstanding the written policy, the de facto practice of Dauphin County is to strip search everyone, and to make up a reason for doing so. (Amended Compl., ¶¶ 33-34). If the Plaintiffs were able to demonstrate that the Defendant’s employees universally ignored the County’s written policy (by, for instance, following the contradictory “Post Order”), then the blanket risk analysis proposed by the Defendant would not protect the County from liability because they did not employ such an analysis. Additionally, the Defendant’s policy requires that “strip search forms” be generated for each detainee brought to the Dauphin County Jail. Should the Defendant’s employees actually follow the written policy on strip searches, and are strip searching detainees charged with certain categories of crimes that supply the requisite reasonable suspicion, the County will be able to demonstrate this to the Court at the appropriate time after discovery is taken. Other courts have also held, however, that an arrest for a drug offense, without more, does not provide reasonable suspicion to strip search. See, Way v. County of Ventura, 445 F.3d 1157, 1161-62 (9th Cir.), cert. denied, 127 S.Ct. 665 (2006); Dodge v. County of Orange, 209 F.R.D. 65, 76-77 (S.D.N.Y. 2002). Once discovery is taken, a list of relevant admission crimes is generated, and the strip search forms are produced to the Plaintiffs, the parties can then address the
9

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 12 of 17
categories of crimes proffered by the Defendants as justifying strip searches, and the Court can make a ruling on these individual categories. The Plaintiffs may even consent, after taking appropriate discovery, that certain categories of crimes should be excluded from the class definition, or should be addressed relative to the Defendants’ liability by the certification of subclasses.
That is not the proposal provided here, however. Instead, the Defendant claims that an amorphous group of class members should be excluded from the class based on a list of criminal charges that they, themselves, decline to define. This most certainly does not demonstrate, unequivocally, that specific absent class members should be excluded from this litigation or have no claim, as the Defendants bear the burden in this regard. Relative to the County’s claims that criminal record can substantiate reasonable suspicion, this is undermined by the fact that Warden DeRose’s testified that a detainee’s prior criminal record is generally not considered at the time the detainee is searched – in fact, the officers conducting the searches do not even have access to computers that would show a detainee’s criminal record. (DeRose, pp. 44-45). Also, other courts have not hesitated to certify class actions that address strip searches of parole and probation violators, who are usually convicted felons, because these searches also require individualized reasonable suspicion. See, Dodge, 209 F.R.D. at 77. Referring to criminal record, alone, is also not a sufficient basis to establish individualized reasonable suspicion, at least outside of the Eleventh Circuit. Assuming the propriety of the Defendant’s analysis, someone convicted of a felony as a juvenile fifty years ago could be strip searched now, as a senior citizen, if they were admitted to the Dauphin County Jail on a traffic ticket, but have otherwise led a law abiding life. This argument should
10

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 13 of 17
not provide a basis to exclude members of the class. At a minimum, this determination
should be made after discovery is taken. If someone’s criminal record provided
“particularized reasonable suspicion” to strip search them, then inevitably it will be
reflected on their strip search form.
As the preceding analysis makes clear, there are a range of facts that need to be
plumbed in discovery before determining the Defendant’s arguments on class definition.
Consequently, the Defendant’s arguments are premature. At this juncture, the County has
moved to dismiss Plaintiffs’ Amended Complaint. The Plaintiffs need only show that the
proposed class representatives have stated a cause of action. Popoola v. MD Individual
Practice Association, 230 F.R.D. 424, 433 (D. Md. 2005). In Popoola, the District Court
stated:
Defendants also argue that Plaintiffs’ amended complaint does not cure the defects in class definition that compelled Judge Scrivener to deny class certification for lack of typicality and commonality. Upon initial inspection, the court disagrees, but the question of class certification is not property before the court at this time. Plaintiffs note correctly that analysis of class compliance with Rule 23 is not appropriately undertaken a motion to dismiss, but should be addressed in a motion to dismiss, but should be addressed in a motion pursuant to Rule 23(c)(1)(A). See7B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1798, at 22627 & n. 23 (3rd ed. 2005) (citing cases). As to Defendants’ motion to dismiss, Plaintiffs need only show, at this juncture, that they have stated a cause of action. ("In determining the propriety of a class action, the question is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 have been met.")
Id. In fact, most courts will not decide dispositive motions prior to class certification
because a decision on dispositive motions will only affect the class representative and
defendant involved. Res judicata will not affect absent class members. Wright v. Schock, 742 F.2d 541, 544 (9th Cir. 1984). "This type of potential disadvantage to defendants has
11

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 14 of 17
prompted some courts to hold that no decision on the merits of a class action can proceed a determination of class certification." Id. Thus, in accordance with the Federal Rules of Civil Procedure, Defendant’s Motion to Dismiss should only address the class representatives’ claims. As noted previously, the County does not, and cannot, show particularized reasonable suspicion to strip search Ashley McCormick, Devon Sheppard, Jennifer Reynolds, and Herbert Carter.
For these reasons, the Court should deny the Defendants’ motion to dismiss the claims of absent class members and/or limit the definition of the proposed class.
POINT II PLAINTIFFS REYNOLDS, CARTER AND SHEPPARD HAVE STANDING TO
SEEK INJUNCTIVE RELIEF. The County concedes that Plaintiff Ashley McCormick has standing to seek injunctive relief, and, consequently, that the class’ claims for injunctive relief should withstand their motion to dismiss. No request for injunctive relief is, however, presently pending. Regardless, the County marches forward with an argument that some class representatives lack standing, and propose to burden the Plaintiffs and the Court with addressing a complicated standing question now, in the absence of discovery, when the County’s success on this point will have no affect on the progress of this lawsuit. A better use of time and limited resources is hard to imagine. Regardless, Plaintiffs Devon Sheppard, Jennifer Reynolds and Herbert Carter do indeed have standing to address Dauphin County’s illegal strip search regimen. The situation presented to the Court is the quintessential example of one that is capable of repetition, yet avoiding review. The United States District Court for the Eastern District
12

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 15 of 17
of Pennsylvania, in considering a conditions of confinement claim at the Philadelphia Prison System, recently held that the named plaintiffs in that action had standing under an exception to the mootness doctrine which “exist[s] to address short-term harms that would otherwise evade judicial review.” Bowers v. City of Philadelphia, 2006 U.S. Dist. Lexis 71914, * 21, 2006 WL 2818501 (E.D. Pa., September 28, 2006). Concluding that the plaintiffs do, in fact, have standing to bring the class action for injunctive and declaratory relief, the Court stated:
Given that Plaintiffs allege severe prison overcrowding and dangerous, unhealthy, and degrading conditions and given that it is certain that other pretrial detainees are currently and will in the future be detained under the allegedly unconstitutional conditions, this case certainly belongs to the class of cases for which an exception to mootness must be made. Bowers, 2006 U.S. Dist. Lexis 71914, *23-24. Here, the named Plaintiffs seek to represent future detainees at the Dauphin County Jail, many of whom will be illegally strip searched as this motion is pending. Other Federal courts, in the context of a class action, have not hesitated to find standing for injunctive relief on behalf of a class even if the representative plaintiff may not, on their own, have standing to seek such relief. See, Bull v. City & County of San Francisco, No. C 03-01840, 2006 WL 449148, * 5 (N.D. Cal., Feb. 23, 2006). This is especially true where a class representative seeks to challenge the written policies and practices of a municipality. See, Marriott v. County of Montgomery, 227 F.R.D. 159, 173 (N.D.N.Y. 2005); Mack v. Suffolk County, 191 F.R.D. 16, 21 (D. Mass. 2000). In short, Ms. Sheppard, Ms. Reynolds and Mr. Carter have standing, as proposed class representatives, to seek injunctive relief against Dauphin County.
13

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 16 of 17

CONCLUSION For these reasons, the Plaintiffs respectfully request that this Court deny Defendant Dauphin County’s Motion to Dismiss.
Respectfully submitted by:

Dated: January 8, 2008

Alan M. Ross, Esquire Pennsylvania Supreme Court ID No. 81301 Member of the Bar, U.S.D.C., M.D.Pa. LAW OFFICE OF ALAN M. ROSS, LLC 2001 North Front Street, Suite 220 Harrisburg, PA 17102 Telephone: 717.238.6311 Telecopier: 717.238.0860 Electronic Mail: amresquire@aol.com
/s Elmer Robert Keach, III
____________________________________ Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT
KEACH, III, PC 1040 Riverfront Center P. O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com

Charles J. LaDuca, Esquire Alexandra Warren, Esquire CUNEO GILBERT & LaDUCA, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960 Telecopier: 202.789.1813 Electronic Mail: charlesl@cuneolaw.com
14

Case 1:07-cv-01688-TIV Document 45 Filed 01/08/2008 Page 17 of 17
Daniel C. Levin, Esquire Pennsylvania Supreme Court ID No. 80013 LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500 Telecopier: 215.592.4663 Electronic Mail: dlevin@lfsblaw.com
Gary E. Mason, Esquire Alexander Barnett, Esquire Nicholas Migliaccio, Esquire THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290 Telecopier: 202.429.2294 Electronic Mail: gmason@masonlawdc.com ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS
15

 
 Case 1:07-cv-01688-TIV Document 47 Filed 01/14/2008 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY McCORMICK, HERBERT CARTER, and DEVON SHEPARD, both individually and on behalf of a class of others similarly situated,
Plaintiffs

NO.1 :07-CV-01688-CCC Judge Thomas I. Vanaskie

v.

CIVIL ACTION - LAW

THE COUNTY OF DAUPHIN, Defendant

JURY TRIAL DEMANDED

PROTECTIVE ORDER

Pursuant to a telephone conference held with counsel for Plaintiffs and Defendant on January 4, 2008, and an order proposed by Defendant, The County of Dauphin, IT IS HEREBY ORDERED as follows:

1. Confidential Information. Confidential information shall include

the name, address, telephone numbers, date of birth, date of arrival at the

Dauphin County Prison, identity and telephone number of next of kin,

offense charged, and the video and

s of individuals -"nV 4

taken at the Dauphin

Prison.

\ -\)~ ~

\)

2. Application. With the exception of any and all video and photographic images taken at the Dauphin County Prison, this Protective Order does not apply to the records of the named plaintiffs. In the event a pretrial detainee becomes a named plaintiff, upon actual joinder to this pending action, this Protective Order shall no longer apply to the additional named plaintiff(s), with the same exception for video and photographic images taken at the Dauphin County Prison.

Case 1:07-cv-01688-TIV Document 47 Filed 01/14/2008 Page 2 of 5
3. Video Images of named Plaintiffs. Defendant, The County of Dauphin, is ordered to produce DVD's which show images of the four named Plaintiffs from 12 of the 14 cameras in the entrance, lobby and booking areas of the Prison, as follows: two of the four video cameras from the North Sally area (NSally, NSallyEntrance), the camera from the Medical Corridor, the two Bullpen cameras (Bullpen1 and Bullpen2), and cameras from Intake and Intake 2, Shakedown1, Shakedown2, Shakedown3, Shakedownhall1 and Shakedownhall2.
4. Documents and Material Stamped "CONFIDENTIAL". Defendant's disclosure to Plaintiffs of the documents and material designated "confidential" shall be marked "CONFIDENTIAL" in a manner that will not interfere with legibility. The Defendant shall stamp the documents and material as "CONFIDENTIAL" prior to the actual release of the documents. In the case of documents and material which cannot be marked page by page, Defendant may designate such materials in a covering memorandum or letter, or by marking the file or media label "CONFIDENTIAL."
5. Limitations On Disclosure of Confidential Documents and Material. With the exception of the video and photographic images taken at the Dauphin County Prison, Confidential documents and material may be reproduced and disseminated to counsel of record, regular employees of counsel assigned to and necessary to assist in the conduct of this action, any experts retained by the parties' Counsel and the named Plaintiffs. With respect to the video and photographic images taken at the Dauphin County Prison, Plaintiffs' counsel is prohibite'd from reproducing the data and providing copies to any person except counsel for Plaintiffs, said counsel's regular employees, any investigators retained by Plaintiffs' counsel, and any expert retained by counsel. Plaintiffs' counsel, or their investigator, are permitted to show the video and photographic images to the named Plaintiffs, as well as prospective class members, to facilitate their investigation relative to the claims raised in the lawsuit. No copies of the images, however, shall be distributed to the class representatives, class members, or potential class members.
6. Conditions on Disclosure. Any person who receives Confidential documents or material must sign a statement agreeing to be

Case 1:07-cv-01688-TIV Document 47 Filed 01/14/2008 Page 3 of 5
bound by this Order. The signed statement, as annexed hereto as Exhibit "A" shall contain:
(a) a recital that the signatory has read and understands this order; and
(b) a recital that the signatory understands that unauthorized disclosure of the Confidential documents or material constitutes contempt of Court.
7. Confidential Information in Deposition Transcripts. The attorneys for the parties may, within fifteen (15) days after receiving any deposition transcript, deSignate pages of the transcript and/or exhibits thereto as Confidential, as these transcripts may implicate Confidential information as defined in this order. Until expiration of the fifteen (15) day period, the entire deposition will be treated as subject to protection against disclosure under this Protective Order. If the attorneys for the parties do not designate information in a deposition or its exhibit as Confidential, then the transcript and its exhibits will be not treated as confidential. The parties need not re-designate as Confidential a document previously so deSignated; e.g., a document designated as Confidential and later marked as a deposition exhibit need not be designated as Confidential a second time because it is marked as a deposition exhibit.
8. Confidential Information at Trial. The documents and material that have been marked Confidential pursuant to this Order shall continue to be treated as Confidential at trial. At trial the Court may determine how the documents and material shall be kept confidential at trial.
9. Filing. The Confidential documents and material need not be filed with the Clerk, except when required in connection with motions under Rule 56 of the FRCP or other matters pending before the Court. If filed, they shall be filed under seal and shall remain sealed while in the office of the Clerk, with such seal being removed after a period of time designated by this Court.
10. Client Consultation. Nothing in this Order shall prevent or otherwise restrict counsel from advising their actual client(s), and in the course thereof, relying generally on examination of stamped Confidential

Case 1:07-cv-01688-TIV Document 47 Filed 01/14/2008 Page 4 of 5
documents and material; provided, however, that in rendering such advice and otherwise communicating with such client(s), counsel shall not make specific disclosure of any item designated Confidential and shall have the client adhere to the Protective Order, including paragraph 5 above.
11. Use. Anyone who obtains access to Confidential documents or material shall use the information only for preparation and trial of this litigation and shall not use such information for any other purpose.
12. Non-termination. The provisions of this Protective Order shall not terminate at the conclusion of this action. Within thirty (30) days after final conclusion of all aspects of this litigation, Confidential documents and material and all copies of same (other than unsealed exhibits of records) shall be returned to the Defendant or, at the option of Defendant, destroyed. All counsel of record who have received documents and material marked as Confidential shall make certification of compliance herewith and shall deliver the same to counsel for the Defendant not more than sixty (60) days after final termination of this litigation.
13. Attorneys' Responsibilities. All attorneys of record who have received material marked Confidential are responsible for employing reasonable measures to control, consistent with this Protective Order, duplication of, access to, and distribution of documents and material stamped Confidential.
14. The Court retains the right to allow the disclosure of any subject covered by this Order or to modify this Order at any time in the interest of justice.
IT IS SO ORDERED:
--d~L t4~
Honorable Thomas I. Vanaskie, United States District Judge
Date: / - J'-/-;:,f

Case 1:07-cv-01688-TIV Document 47 Filed 01/14/2008 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY McCORMICK, HERBERT CARTER, and DEVON SHEPARD, both individually and on behalf of a class of others similarly situated,
Plaintiffs

NO.1:07-CV-01688-CCC Judge Thomas I. Vanaskie

v.

CIVIL ACTION - LAW

THE COUNTY OF DAUPHIN, Defendant

JURY TRIAL DEMANDED

CERTIFICATION

1. My name is

I live at

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. I am employed as

(state position) by _ _ _ _ _ _ _ __

(state name and address of employer).

2. I have read the Protective Order that has been entered in this case, and a copy of it has been given to me. I understand the provisions of this Order, and agree to comply with and to be bound by its provisions.

3. I understand that violation of the Protective Order constitutes contempt of Court and shall be punishable by the Court.

4 I declare under penalty of perjury that the foregoing is true and correct.

Executed this __ day of ___" 2008 By:
Exhibit "A"

 
 Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

: NO. 1:07-CV-01688-CCC

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both

: (Complaint filed 9/16/07)

individually and on behalf of a class :

of others similarly situated,

:

Plaintiffs

:

Judge Thomas I. Vanaskie

:

v.

: CIVIL ACTION – LAW

:

THE COUNTY OF DAUPHIN,

: JURY TRIAL DEMANDED

Defenda

nt

:

_________________________________________________________

DEFENDANT COUNTY OF DAUPHIN’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS THE AMENDED COMPLAINT
_________________________________________________________

LAVERY, FAHERTY,

McNEES WALLACE & NURICK LLC

YOUNG & PATTERSON, P.C. David E. Lehman

Frank J. Lavery, Jr.

Pa. Bar I.D. No. 15243

Pa. Bar I.D. No. 42370

James P. DeAngelo

Robert G. Hanna

Pa. Bar I.D. No. 62377

Pa. Bar I.D. No. 17890

Carol Steinour Young

Devon M. Jacob

Pa. Bar I.D. No. 55969

Pa. Bar I.D. No. 89182

Devin J. Chwastyk

225 Market Street, Suite 304 Pa. Bar I.D. No. 91852

P.O. Box 1245

100 Pine Street

Harrisburg, PA 17108-1245 P.O. Box 1166

(717) 233-6633 (telephone) Harrisburg, PA 17108

(717) 233-7003 (facsimile) (717) 232-8000 (telephone)

(717) 237-5300 (facsimile)

Co-counsel for Defendant

Co-counsel for Defendant

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 2 of 31

TABLE OF CONTENTS

Page

TABLE

OF CITATIONS .............................................................iii

I. ARGUMENT .............................................................................. 1

A. Plaintiffs Attempt To Introduce Facts That May Not Be Considered By The Court When Ruling On Defendant’s Motion To Dismiss........................................ 1

B. Plaintiffs' Proposed Class Is Facially Overbroad Because It Contains Putative Members Whom, As A Matter Of Law, Defendant Had Reasonable Suspicion To Strip Search, And The Court Should Therefore Dismiss Those Putative Members By Limiting Plaintiffs' Class Definition In Accord With Established Law ............................................................... 3

1. Defendant Has Not Conceded That Blanket Strip Search Policies Are Unconstitutional.............. 4

2. Defendant Urges This Court Find, as A Matter of Law, That No Reasonable Suspicion is Required to Strip Search an Arrestee Who Has Been Detained for A Crime Involving Weapons, Violence or Contraband, or Who Has A Prior Record of Convictions or Unresolved Arrests for Felonies, or for Crimes Involving Weapons, Violence or Contraband .......... 5

a. The nature of an arrestee's offense, or their prior criminal record, properly establishes reasonable suspicion and objectively justifies any strip search of the arrestee....................................................5

i

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 3 of 31
Page b. Defendant can establish reasonable
suspicion for the strip search of pretrial detainees based upon an objective review of the circumstances, rather than a subjective review of the reasons that searches were conducted ..............................8 3. Discovery is Not Necessary to Determine That Plaintiffs’ Putative Class is Overbroad as A Matter of Law ........................................................ 14 4. Plaintiffs Have the Burden to Prove That Their Constitutional Rights Were Violated...................... 16 C. Plaintiffs’ Amended Complaint Clearly Seeks Injunctive Relief And Named Plaintiffs Shepard, Carter, And Reynolds, And Putative Class Members, Do Not Have Standing To Seek Such Relief .............................................................................. 19
ii

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 4 of 31

TABLE OF CITATIONS

Cases:

Page

Artway v. Attorney Gen. of N.J., 81 F.3d 1235 (3d Cir. 1996).................... 20

Bell v. Wolfish, 441 U.S. 520 (1979) .................................................... 4,5,12

City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed.2d 675, 103 S. Ct. 1660 (1983) ................................................................ 20,22

Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003) ............................. 17

Davis v. County of Camden, 657 F. Supp. 396 (D.N.J. 1987) .............. 11,12

Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002)..................... 12

Edwards v. Philadelphia, 860 F.2d 568 (3d Cir. 1988)............................... 17

Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 167 L. Ed.2d 1081 (2007) ................................................................................................. 1

Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005) .................................. 10

Groman v. Township of Manalapan, 47 F.3d 628 (3d Cir. 1995) .......... 16,18

Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) ................................ 6,10,14

Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006).......................... 17

In re Rockefeller Center Properties, Inc. Securities Litig., 184 F.3d 280 (3d Cir. 1999)............................................................. 1,2

Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) ...................... 17,18

Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989)....................................... 6

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993).............................................................. 2

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 5 of 31

Cases: (cont'd)

Page

Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007)................ 3,6,7,8,10,12,15

Rosetti v. Shalala, 12 F.3d 1216 (3d Cir. 1993) ......................................... 21

Scott v. U.S., 436 U.S. 128 (1978)............................................................... 9

Smith v. Montgomery County, 643 F. Supp. 435 (D.Md. 1986) ...... 3,6,11,12

Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ............................................................................................... 22

Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006) ........................................... 21

Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181 (3d Cir. 2006) ............ 21

Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004).................................... 3,6

Terry v. Ohio, 392 U.S. 1 (1968) ............................................................... 8,9

U.S. v. Jones, 657 F. Supp. 492 (W.D.Pa. 1987) ...................................... 10

U.S. v. Leal, 235 Fed. Appx. 937, 2007 WL 1655658 (3d Cir. 2007) ........... 9

United States v. Hawkins, 811 F.2d 210 (3d Cir.1987) .............................. 10

Way v. County of Ventura, 445 F.3d 1157 (9th Cir. 2006) ......................... 12

Whren v. U.S., 517 U.S. 806 (1996) ....................................................... 9,12

Winston v. Comm., 654 S.E.2d 340, 2007 WL 4523089 (Va. App. Dec. 27, 2007) ............................................................................ 4

Statutes: 42 U.S.C. § 1983................................................................................... 17,18

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 6 of 31

I. ARGUMENT

A. Plaintiffs Attempt To Introduce Facts That May Not Be Considered By The Co urt When Ruling On Defendant’s Motion To Dismiss.

Plaintiffs attach documents to thei r Brief In Oppositi on to Defendant's

Motion to Dismiss that the Court should not consi

der when ruling on

Defendant’s Motion to Dismiss. Plaintiffs rely upon these documents to

support their arguments th roughout their Brief. (See , Doc. 45, pp. 1-3, 7,

10). As Plaintiffs aptly point out in their introducti on, when ruling on a

defendant's motion to dismiss, a judge mu st accept as true all of the factual

allegations contained in the complaint. (Doc. 45, p. 1); Erickson v. Pardus ,

___ U.S. ___, 127 S. Ct. 2197, 2200, 167 L. Ed.2d 1081 (2007). The court

may only consider certai n narrowly def ined types of materi al without

converting the motion to dismiss to a summary judgment motion, including a

document that is integral to or explicitly reli ed upon in the complaint. In re

Rockefeller Center Properti es, Inc. Securities Litig. , 184 F.3d 280, 287 (3d

Cir. 1999). A court may also consid er an "undisputedly authentic document

that a defendant attaches as an exhibit to a motion to dismiss if the plai ntiff's

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 7 of 31

claims are based on the document." P ension Benefit Guar. Corp. v. White

Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (emphasis added).

Plaintiffs have attached several ex trinsic documents to their brief in

opposition to Defendant's Motion to

Dismiss, including a document

captioned as a “post order” which purported ly describes job responsibi lities

of a booking officer at the Prison, (Doc . 45, Exhibit “B”), and excerpts of the

deposition transcript of Dauphin County Prison Warden Dominick DeRose.

(Doc. 45, Exhibit “A”). These extrin sic documents are neither integral to nor

expressly relied upon in the Complain t, and Defendant did not introduce

them at this stage. Plaintiffs cannot present the Court with the “post order”

or DeRose’s deposition transcript to s upport their arguments in opposition to

Defendant’s Motion to Dismiss because such documents are not integral to

or explicitly relied upon in the Amended Co mplaint. In re Rockefeller Center

Properties, Inc. Securities Litig., supra.

Even if such documents were int egral or relied upon in the Amended

Complaint, only Defendant may introdu ce documents in support of its

argument. Pension Benefit Guar. Corp., supra. Thus, Defendant urges this

Court to ignore the documents attached to Plaintiffs’ Brief in Oppositi on and

their arguments arising there from when ruling on D efendant’s Motion to

Dismiss.

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B. Plaintiffs' Proposed Class Is Facially

Overbroad

Because It Contains Putati ve Members Whom, As A

Matter Of Law, Defendant Had Reasonable Suspicion

To Strip Search, And The Cour t Should Therefor e

Dismiss Those Putative Members By Limiting Plaintiffs'

Class Definition In Accord With Established Law.

As set forth i n Defendant's initi al brief i n support of its Moti on to

Dismiss, Plaintiffs have drawn their proposed class so broadly that it

encompasses arrestees whom Defendant could constitutionally strip search

based entirely on the nature of their offense or their past criminal history.

See Defendant's Brief In Support Of Its Motion To Dismiss The Amended

Complaint ("Defendant's Brief") at § IV(A).

Courts of Appeal in the 1st and 11th Circuits, and a District Court in the 4th Circuit, have held that j ail administrators may strip search, without any

further individualized suspi cion, an arrestee who has been detained for a

crime involving weapons or contraband, or who has a prior record of

convictions or unresolved arrests for felonies, or for misdemeanors involving

weapons or contraband. S ee Powell v. Barrett , 496 F.3d 1288, 1310 (11th

Cir. 2007); Tardiff v. Knox County , 365 F.3d 1, 5 (1st Cir. 2004); Smith v.

Montgomery County, 643 F. Supp. 435, 439 (D.Md. 1986). Defendant has

requested that thi s Court reach a si milar conclusion, and hol d that, as a

matter of law, Plai ntiff's proposed cla ss is overly broad because it includes

putative class members who fall within these categories.

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 9 of 31
1. Defendant Has Not Conceded That Blanket Strip Search Policies Are Unconstitutional.
No court has issued any judicial opinion, controlling upon this Court, holding that individualized reasonable suspicion is required to stri p search a pretrial detainee. The United States Supreme Court, in its only decision on the question, refused to even find t hat pretrial detainees retain any Fourth Amendment rights upon their commitment to a detenti on facility. See Bell v. Wolfish, 441 U.S. 520, 560 (1979).
Legal precedent i nterpreting the Supreme Court's decisi on in Wolfish is inconsistent, and several courts have held that no reasonable suspi cion is required to justify the strip searc h of a pretri al detainee. See Defendant's Brief at pp. 7-10 (noting that neither the Supreme Court nor the Third Circuit has held that indivi dualized reasonable suspicion is required to strip search a pretrial detainee, and setting forth six f ederal circuit decisions critical of that prevailing interpretation of Bell v. Wolfish ). Most recentl y, the Virgini a Court of Appeals held that a visual cavi ty search (strip search) of a pretri al detainee need not be justi fied by reas onable suspicion to pass scruti ny under the Fourth Amendment. See Winston v. Comm. , 654 S.E.2d 340, 2007 WL 4523089 (Va. App. Dec. 27, 2007) (citi ng Wolfish, 441 U.S. at 559).
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Given this lack of uniformity, Pl aintiffs' statement that "The County
acknowledges that bl anket strip search policies/practices are
unconstitutional," Plaintiffs' Brief at p. 4, is a mischaracterization. See
Defendant's Brief at 6 (re cognizing that the preva iling interpretation of
Wolfish requires reasonable suspicion to justify a strip search of a detainee,
but citing dissenting opinions). To the contrary, the County will contend that
the prevailing i nterpretation of Wol fish is incorrect, and that reasonable
suspicion is not required to strip search a pretri al detainee. The Court's
consideration of D efendant's Motion to Dismiss, however, does not require
any examination or resolution of these competing viewpoints.
2. Defendant Urges This Court Find, as A Matter of Law, That No Reasonable Suspicion is Required to Strip Search an Arrestee Who Has Been Detained for A Crime Involving Weapons, Violence or Contraband, or Who Has A Prior Record of Convictions or Unresolved Arrests for Felonies, or for Crimes Involving Weapons, Violence or Contraband.
a. The nature of an arrestee's offense, or their prior criminal record, properly establishes reasonable suspicion and objectivel y justifies any strip search of the arrestee.
Defendant was not required to have reasonable suspicion to stri p
search any arrestee detai ned for a crime involving weapons, vi olence or
contraband, or who has a prior record of convicti ons or unresol ved arrests
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 11 of 31
for felonies, or for crimes involv ing weapons, viol ence or contraband, because the nature of such charges or prior criminal history alone provides reasonable suspicion constitutionally justifying a visual body cavi ty search. See Defendant's Brief at pp. 8-9 (citi ng Powell v. Barrett , 496 F.3d 1288, 1310 (11th Cir. 2007); Tard iff v. Knox County , 365 F.3d 1, 5 (1st Cir. 2004); Smith v. Montgomery County , 643 F. Supp. 435, 439 (D.Md. 1986)). See also Hicks v. Moore , 422 F.3d 1246, 1252 (11th Cir. 2005); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989). Because these detainees have no potenti al claims for a violati on of their Fourth Amendment rights, this Court may limit the size of the p roposed class as a matter of law based upon the nature of the charges and/or prior criminal hi story of the pre-tri al detainee.
In Powell v. Barrett , 496 F.3d 1288 (11th Cir. 2007), plaintiffs challenged the constitutionality of a county jail’s strip search policy, similar to that presented by Plaintiffs in this matter. In the Court’s discussi on regarding whether reasonabl e suspicion existed to search certain class members, the Court recognized that a person charged with a crime of violence is sufficient to evoke reasonable suspicion that the person may be concealing weapons or contraband. Powell , 496 F.3d at 1311. The Court opined that “where a person is arrested for an offense involving weapons or
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 12 of 31
drugs – such as possessi on or use of a firearm and possession, use, or distribution of an illegal substance – it is objectively reasonable to conduct a strip search of that person before he comes into contact with other detainees.” Id. The Court concluded that the nature of a charge itself, independent of the facts surrounding the arrest, gi ves rise to reasonable suspicion. Id.
Defendant urges that the Court adopt the holding of Powell , and the other cases cited above, that a jail er need not have reasonabl e suspicion to strip search a pretrial detainee arres ted for a crime involving weapons, violence or contraband, or who has a prior record of convictions or unresolved arrests for feloni es, or for crimes involving weapons, violence or contraband, because such arrest or crim inal history, as a matter of law, provides reasonable suspicion. Consistent with those cases, Defendant has offered an alternate class definition that does not include detainees charged with the types of offenses or with the criminal history outlined in Powell. See Defendant's Brief at p. 11.
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 13 of 31

b. Defendant can establish reasonable suspicion for the strip search of pretrial detainees based upon an objective review of the circumstances, rath er than a subjective review of the reasons that searches were conducted.

Contrary to Plaintiffs' exhortations, it is irrelevant whether Defendant's

actual justifications for the strip search of putative class members arose from

the nature of their charges or their prior crimi nal history. Rather, the Court

should examine "whether, given the ci rcumstances, reasonable suspicion

objectively existed to justify the search." Powell , 496 F.3d at 1310

(emphasis in original). T he distinction between a government actor's

subjective motivations and the objecti ve criteria arisi ng from the

circumstances is a well-recognized tenet of American constitutional law.

The United States Supreme Court has made clear, time and time

again, that an examination of the

constitutional reasonableness of a

government search rests on an objecti ve, after-the-fact analysis of the

circumstances, rather than a subj ective review of the act ual basis for the

action. This principle has been es pecially well enunciated in cases

examining the reasonable required to justify governmental searches.

In Terry v. Ohio , 392 U.S. 1, 21-22 (196 8), the Supreme Court

emphasized the objective aspect of the term “reasonable” in its examination

of the constitutionality of pat-down searches by police officers:

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 14 of 31
The scheme of the Fourth Am endment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subj ected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a parti cular search or seizure in l ight of the particular circumstances. And in making that assessment it is imperative that the facts be ju dged against an objective standard; would the facts available to the offi cer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?
Since Terry, the Court has made clear that the "objective" justifications
for a search that may later becom e apparent need not conform to the
"subjective" justifications that were apparent at the time:
We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justifi cation for the officer' s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action . . . The Courts of Appeal s which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of obj ective reasonableness without regard to the underlying intent or motivation of the officers involved.
Scott v. U.S., 436 U.S. 128, 138 (1978). See also Whren v. U.S. , 517 U.S.
806, 813 (1996) ("Subjecti ve intentions play no role i n ordinary, probable-
cause Fourth Amendment analysis."); U.S. v. Leal , 235 Fed. Appx. 937,
2007 WL 1655658 (3d Cir. 2007) ("Law enforcement officers have broad
leeway to conduct s earches and sei zures regardless of whether thei r
subjective intent corresponds to the legal justifications for their actions i f the
legal justification is objectively grounded."); U.S. v. Jones, 657 F. Supp. 492,
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 15 of 31
497 (W.D.Pa. 1987) ("We look at the obje ctive facts, not at the officers'
subjective intent: even if the police o fficers' professed reason for the search
is incredible or i nsufficient, the search wi ll be legal if the objecti ve
circumstances known to the officers would have justified a reasonable officer
in taking these actions.") (citing United States v. Hawkins, 811 F.2d 210, 215
(3d Cir.1987)).
These same objective criteria sh ould be appli ed when examining the
reasonableness of a jailer's strip search of a pretrial detainee. See Powell v.
Barrett, 496 F.3d 1288, 1310 (11th Ci r. 2007); Hicks v. Moore , 422 F.3d
1246, 1252 (11th Cir. 2005); Evans v. Stephens , 407 F.3d 1272, 1280 n. 9
(11th Cir. 2005). As stated by the court in Hicks:
[T]he question we are faced with here is not whether a specifi c arresting officer or jailer act ually and subj ectively had the pertinent reasonable suspicion, but whether, given the circumstances, reasonable susp icion objectively existed to justify such a search. T hat no one, at the time, actual ly conducted a "reasonable suspici on" analysis is unimportant to whether reasonable suspicion obj ectively existed, given the circumstances. The subjective intentions and beliefs of the jailers conducting the strip search are immaterial to the Fourth Amendment analysis.
Hicks, 422 F.3d at 1252.
Plaintiffs ignore this well-established body of l aw, instead arguing that
Powell, and its applicati on of the "objective cri teria" standard to strip search
cases, "has been ostensibl y ignored by the majority of Federal courts," and
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 16 of 31

that Defendant cannot rel y on "post hoc " demonstrations of reasonable

suspicion as to some purported class memb ers. Plaintiff's Brief at p. 7-8.

Plaintiffs, however, point to absolutely no case law

that supports thei r

contention that the law in the contex t of strip searches should depart from

the uniform precedent of our Fourth Amendment jurisprudence to focus

instead on the subjective justifications of corrections officers who stri p

search pretrial detainees.

Plaintiffs contend that governmental consideration of the obj ective

criteria of the charges and criminal history of an arrestee was rejected in

Davis v. County of Camden , 657 F . Supp. 396, 400-401 (D.N.J. 1987).

Davis, however, involved an individual plai ntiff's claim that she was illegally

strip-searched. T here, the "defendant s candidly admit that the county

officers had no reasonable suspi cion that the plaintiff was concealing

weapons or contraband." Distinguishing the facts from Smith, supra, a class

action where the court had held that an arrestee's charges or criminal history

could justify a strip search, the Davis court noted:

In Smith, a class action, defendants never conceded that they harbored no actual suspicion with respect to any plaintiffs; to the contrary, they persistently asserted that they had probabl e cause to search every person that had opted in to the cl ass. The Smith court . . . did not . . . hold that once a determination

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 17 of 31

has been made that a parti cular arrestee does not present a danger, a search may proceed nonetheless. Davis, 657 F. Supp. at 400. The Davis decision, therefore, rested on the specific fact that the jai l administrators had admitted that they had no reasonable suspicion as to the individual plainti ff. To the extent that the Davis decision thereafter cri ticized what it called a "blanket risk approach" 1 justifying the strip search of class action pl aintiffs based on their charges or criminal history, such holdi ng is di cta, and further is contrary to Powell , Whren, and the other cases cited above. Plaintiffs cite to two cases that held that a particular drug arrest did not create reasonable suspicion sufficient to justify a strip search of the arrestee. Plaintiffs' Brief at p. 9 (c iting Way v. County of Ventura , 445 F.3d 1157, 1161-1162 (9th Cir. 2006) and D odge v. County of Orange , 209 F.R.D. 65, 76-77 (S.D.N.Y. 2002)). These deci sions are outliers, which run contrary to the consensus established above, and, further, both ignore the recognized interests of jai l officials to preven t the smuggl ing of co ntraband into their prisons and the need for br ight-line rules to allow effective enforcement of jail policies. See Wolfish, 441 U.S. at 559; Smith , 643 F. Supp. at 437.

1 Contrary to Plai ntiffs' assertions, courts have not uniformly criticized or

invalidated the "blanket ri sk approach." To the contrary, D efendant's

research has uncovered only two opinions that even reference thi

s

approach.

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 18 of 31
None of the other cases ci ted by Pl aintiffs address whether an arrestee's charge or prior cri minal history could provide constitutionally valid objective criteria to justify a strip search.
c. Defendant's strip searches of significant portions of the putative class were based upon objectively reasonable criteria, and therefore did not violate the Constitution.
Based upon the objective factors of the nature of th e charge for a detainee and a detainee’ s prior criminal history, it can be concluded that reasonable suspicion existed to strip search m any of the detainees included in Plaintiffs' putative class. Clearly, this is a purely legal determination, one that this Court may make at this ti me as a m atter of l aw based upon the class definition as alleged in Plaint iffs’ Amended Complaint. Plainti ffs’ proposed class definition includes persons as to whom reasonable suspicion existed, arising by the very nature of the crime the person was charged or their past criminal history, i.e. th ose detainees whose charges upon intake implicated either weapons or drugs, or who had a past conviction for a felony, drug or weapons charge. Because Plai ntiffs’ proposed class includes these detainees, it is overbroad as a matter of law.
Moreover, although Plaintiffs allege that the County has a pol icy of strip-searching all pre-trial detainees, such all egation, even if proven to be true, does not necessarily result in a viol ation of each class member’s
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 19 of 31
constitutional rights. The mere fact that a detainee undergoes a strip search at a jai l that had a blanket strip se arch policy does not mean that every search conducted actual ly violated the Constituti on. See , e.g., Hicks v. Moore, 422 F.3d 1246, 1251 (11th Cir. 2005 ). Therefore, even assuming that the averments in Plaintiffs’ Amended Complaint are true, such a policy would not necessarily result in violati ons of the consti tutional rights of all persons strip searched. Rather, if r easonable suspicion objectively existed that the pre-trial detainee is conc ealing contraband, that detai nee cannot establish that the strip search was a viol ation of his/her constitutional rights. Thus, the Court may obj ectively determine at this stage of the proceedi ngs that Dauphin County had reasonabl e suspicion to search certain pre-trial detainees, as outlined above, and that such a determination may be based upon the nature of the detainee’s charges and/or prior criminal history.
3. Discovery is Not N ecessary to Determine That Plaintiffs’ Putative Class is Overbroad as A Matter of Law.
Plaintiffs contend that di scovery must be completed before any determination regarding cl ass size is made. Plaintiffs are mistaken. The determination that the Plai ntiffs’ proposed class is overbroad as presently defined is a matter of l aw. For exam ple, there are no facts which could be discovered which would resu lt in a finding that a searching officer lacked
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 20 of 31

reasonable suspicion to search a pre -trial detainee who was arrested on a

drug charge. Thus, no discovery is

necessary to determine whether

Plaintiffs’ putative class should be s ubstituted with Defendant's proposed

definition of class members.

Indeed, Plaintiffs have not denied or refuted the fact that many of the

putative members of their proposed class, as presently drawn, are arrestees

who have been detained for a crime involving weapons or contraband, or

who have a prior record of convi ctions or unresolved arrests for felonies or

for misdemeanors involvi ng weapons or contraband. As to these

individuals, Defendant, as a matter of law, possessed obj ective criteria

creating reasonable suspi cion sufficient to justify their strip search upon

admission to Dauphin County Prison. No further discov ery is required to

establish that Plaintiffs' proposed cl ass is too broadly drawn, and that these

individuals have no actionable claims against Defendant.

Plaintiffs, in fact, suggest that they may l ater voluntarily agree to

narrow their class to the limi ts proposed by Defendant: "Plaintiffs may even

consent…that certain categori es should be excluded from the class

definition.” (Doc. 45, p. 10). Plai ntiffs nonetheless c ontend that further

discovery should be taken as to putative cl ass members with no legal ly

cognizable claims (as outli ned above and in Powell ). Allowing such further

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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 21 of 31
discovery only would result i n needless expense to the parties and a waste of judicial resources.
Defendant therefore requests that Plaintiffs' Complaint be dismissed to the extent that its proposed class definition encompasses putati ve members without legally cognizable claims, and that Plainti ffs' proposed class definition be accordingl y amended as set fo rth in Defendant's initial brief. See Defendant's Brief at p. 11.
4. Plaintiffs Have the Burden to Prove That Their Constitutional Rights Were Violated.
Plaintiffs contend that Defendant is not entitled to dismissal based on the existence of reasonable suspicion as to putative members of the overly broad class because the existence of reaso nable suspicion is an affirmative defense, as to which the burden of proof is on Defendant. Plaintiffs' Brief at p. 7-8.
Plaintiffs' contention is incorrect because the determinati on of reasonable suspicion should be made as a matter of law, with respect to the detainees described above. Moreover, it is important to note that a plaintiff in a Section 1983 action has the burden to prove a violation of a civil right secured by the C onstitution or federal law and must show that the all eged deprivation was committed by a person acti ng under color of state law. Groman v. Township of Manalapan , 47 F.3d 628, 633 (3d Cir. 1995). This
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 22 of 31
standard has been applied to various constituti onal claims brought pursuant to Section 1983 i n this jurisdiction. See Edwards v. Philadel phia, 860 F.2d 568 (3d Cir. 1988) (pl aintiff has the burden where the alleged deprivation i s the use of excessive force); Hill v. Borough of Kutztown , 455 F.3d 225, 241 (3d Cir. 2006) (plaintiff has the burden in a First Amendment retaliation claim brought pursuant to Section 1983). The burd en, therefore, is on Plaintiffs to establish that Defendant's al leged searches of the putative class members were in violation of the Fourth Amendment.
In support of their argument in opposition, Plaintiffs fi rst cite to two cases from other jurisdi ctions, Curry v. City of Syracuse , 316 F.3d 324 (2d Cir. 2003) and Mack v. Suffolk County , 191 F.R.D. 16 (D. Mass. 2000), which they construe as placing the burden to establish reasonable suspicion on Defendant. These cases do not stand for such a proposi tion in the context of a consti tutional challenge to a strip search policy pursuant to 42 U.S.C. § 1983. Additionally, no deci sions from the Third Ci rcuit or any district court in the Third Circuit following the reasoning of Curry or Mack.
In Curry, the plaintiff brought a claim against a police officer for false imprisonment. In its discussion regarding the elements of such a claim, the Court noted that a “defendant has t he burden of raisi ng and proving the affirmative defense of probable cause.” Curry , 316 F.3d at 335. The false
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 23 of 31
imprisonment claim was brought pursuant to New York stat e law and it was not a claim for a United States cons titutional violation. There was no discussion regarding the burden of a Plaint iff in a civil rights acti on brought pursuant to 42 U.S.C. § 1983, nor was there any mention of the burden in an action involving a constitutional challenge to a strip search policy. Furthermore, in this jurisdiction, courts have held that to prevail on a false arrest claim under Section 1983, a pl aintiff must demonstrate at trial that the police lacked probable cause. Groman, 47 F.3d at 634.
In Mack, the plai ntiffs brought a cl ass action challenging the strip search policy of the Suffol k County Jail. After its determination that class certification was appropriate and after a fi nding that the women plaintiffs were routinely strip-searched, the Co urt stated that the burden then rested on the defendants to de monstrate that the par ticular searches were reasonable. No such determinatio ns have been made here to shift the burden onto Defendant to prove that reasonable suspi cion existed to stri p search any indivi duals searched under any alleged strip search poli cy. Thus, Plaintiffs mai ntain the burden to prove that their consti tutional rights were violated.
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C. Plaintiffs’ Amended Complaint Clearly Seeks Injunctive Relief And Name d Plaintiffs Shepard, Carter, And Rey nolds, And Putative Class Members, Do Not Have Standing To Seek Such Relief.
Plaintiffs contend that “[n]o request for [injunctive] relief is . . . presently pending” and it attempts to dissuade the Court from a “complicated standing question” at this juncture. (Doc. 45, p. 9). Pl aintiffs’ contention that they do not seek injunctive relief is untrue. At paragraph 4 of the prayer for relief portion of their Amended Complaint, Plaintiffs seek, “[a] prelim inary and permanent injunction enjoining De fendant County of D auphin from continuing to stri p and visual ca vity search indi viduals charged with misdemeanors or minor cri mes absent part icularized, reasonable suspici on that the arrestee subjected to t he search is conc ealing weapons or contraband.” (Doc. 24, p. 14).
Defendant requests that thi s Court di smiss the claim for inj unctive relief filed on behalf of Plaintiffs Reynolds, Sheppard and Carter because the Amended Complaint is completel y devoid of a claim that any of the three is likely to be subjected to a strip sear ch again in Dauphin County. Glaringly, Plaintiffs’ Amended Complaint does include an averment that “there i s a possibility beyond mere specul ation” that any of th e plaintiffs other than Plaintiff McCormick will again be subjec ted to a strip searc h. (Doc. 24, ¶ 38). Without averring that Plainti ffs Shepard, Reynolds , and Carter, and
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Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 25 of 31
putative class members will be subjected to the complained of conduct in the future, i.e. a strip search at the Prison, those Plaintiffs do not have standing to seek injunctive relief. See City of Los Angeles v. Lyons , 461 U.S. 95, 75 L. Ed.2d 675, 103 S. Ct. 1660 (1983).
Plaintiffs further argue that na med Plaintiffs and putative class members have standing to seek i njunctive relief because the “si tuation presented to the Court is the quintess ential example of one that is capable of repetition, yet avoidi ng review.” (Doc. 45, p. 12). Perhaps not as concerned with any future relief of c urrently unrepresented parti es, or their unwillingness to engage in such a “complicated” standing analysis, Plaintiffs briefly refer to case law from other jurisdictions which issued decisions contra to the deci sion issued by the United States Supreme Court in Lyons . Plaintiffs confuse the mootness doctri ne in their discussion of standing and incorrectly apply the doctri ne to their discussion of whether named Plaintiffs and putative class members have standing to seek injunctive relief.
Standing inquires whether "someo ne is the proper party to bring a lawsuit at the begi nning of the case." Artway v. Attorney Gen. of N.J. , 81 F.3d 1235, 1246 (3d Cir. 1996). "The three el ements necessary to establish the irreducible constitutional minimum of standing are: (1) the pl aintiff must have suffered an i njury in fact - an i nvasion of a legal ly protected interest
20

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 26 of 31
which is (a) concrete and particulari zed and (b) actual or imminent, not conjectural or hypotheti cal; (2) there is a causal connection between the injury and the conduct com plained of; and (3) it must be likely, as opposed to merely speculative, that the in jury will be redressed by a favorable decision." Taliaferro v. Darby Twp. Zoning Bd ., 458 F.3d 181, 188 (3d Cir. 2006) (citation omi tted). M ootness has been described as "the doctri ne of standing set in a ti me frame: The requisi te personal interest that must exi st at the commencement of the litigati on (standing) must c ontinue through its existence (mootness)." Rosetti v. Shalala , 12 F.3d 1216, 1224 n.19 (3d Cir. 1993) (citation omitted). "A central question in determining m ootness is whether a change in the ci rcumstances since the beginning of the liti gation precludes any occasion for meaningful relief." Surrick v. Killion , 449 F.3d 520, 526 (3d Cir. 2006) (citation omitted).
Here, named Plaintiffs Shepard, Reynolds, and Carter, and putative class members, did not have standing to recover at the outset of this litigation. Thus, the mootness doctri ne is inapplicable. Moreover, under the “capable of repeti tion” exception to the mootness doctrine as argued by Plaintiffs, a court may exercise its juri sdiction and consider the merits of a case that would otherwise be deemed moot when, “(1) the challenged action is, in its duration, too short to be fu lly litigated, and (2) there is a reasonable
21

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 27 of 31
expectation that the same complaining party will be subj ect to the same action again.” Spencer v. Kemna , 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Even assuming, arguendo, that the mootness doctri ne applies as Plaintiffs contend (which Defendant contends is an incorrect analysis), the “capable of repetition” exception cannot provide recovery because the Amended Complaint failed to allege that Plaintiffs Shepard, Reynolds, and Carter, and putative class members, will be subject to strip searches at the Prison again. Defendant urges thi s Court to follow Lyon s and conclude that named Plaintiffs Shepard, Reynolds, and Carter, and putative class members, cannot obtain injunctive reli ef based upon the averments of the Amended Complaint.
22

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 28 of 31

WHEREFORE, for the reasons se t forth hereinabove, Defendant,

County of Dauphin, hereby requests that this Honorable grant its Motion to

Dismiss and enter the proposed order.

Respectfully

submitted,

Lavery,

Faherty, Young & Patterson, P.C.

Date: January 23, 2008 Frank Pa.
Robert Pa.
Pa. djacob@l 225 P.O. Harrisburg, (717) (717)

By: /s/ Frank J. Lavery, Jr. J. Lavery, Jr.
Bar I.D. No. 42370 flavery@laverylaw.com
G. Hanna Bar I.D. No. 17890 Devon M. Jacob Bar I.D. No. 89182
averylaw.com Market Street, Suite 304 Box 1245
PA 17108-1245 233-6633 (telephone) 233-7003 (facsimile)
Co-counsel for Defendant

23

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 29 of 31

McNEES,

WALLACE & NURICK LLC

By: /s/ Carol Steinour Young

David

E. Lehman

Pa.

Bar I.D. No. 15243

dlehman@mwn.com

James

P. DeAngelo

Pa.

Bar I.D. No. 62377

jdeangelo@mwn.com

Carol

Steinour Young

Pa.

Bar I.D. No. 55969

csteinour@mwn.com

Devin

J. Chwastyk

Pa.

Bar I.D. No. 91852

dchwastyk@mwn.com

100 Pine Street

P.O. Box 1166

Harrisburg, PA 17108

(717) 232-8000

Co-counsel for Defendant

24

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 30 of 31

CERTIFICATION OF COMPLIANCE WITH WORD COUNT LIMIT
Pursuant to LR 7.8, the undersigned hereby certifies, subject to Red.R.Civ.P. 11, that this brief complies with the word-count limitations of LR 7.8(b)(2) because this brief contains 4,830 words.

Carol

By /s/ Carol Steinour Young Steinour Young
Co-Counsel for Defendant County of Dauphin

25

Case 1:07-cv-01688-TIV Document 51 Filed 01/23/2008 Page 31 of 31
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on January 23, 2008, a true and
correct copy of the foregoing Defendant's Reply Brief in Support of its
Motion to Dismiss Amended Complaint was served via U.S. Middle
District Court’s Electronic Case Filing System upon the following:
Alan M. Ross, Esq. amresquire@aol.com
Charles J. LaDuca, Esq. charlesl@cuneolaw.com
Daniel C. Levin, Esq. dlevin@lfsblaw.com
Elmer Robert Keach, III, Esq. bobkeach@keachlawfirm.com
Gary E. Mason, Esq. gmason@masonlawdc.com
Alexandra C. Warren, Esq. awarren@cuneolaw.com
By /s/ Carol Steinour Young Carol Steinour Young Co-Counsel for Defendant County of Dauphin
This document has also been electronic ally filed and is available for viewing and downloading from the ECF system.

 
 Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, et al.,
Plaintiffs, - vsTHE COUNTY OF DAUPHIN
Defendant.

Civil Action No. 1:07-CV-01688 Judge Thomas I. Vanaskie
(Complaint Filed 9/16/07) CIVIL ACTION - LAW JURY TRIAL DEMANDED

MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, FOR AN AWARD OF
EXPENSES AND ATTORNEYS' FEES, AND FOR APPROVAL OF INCENTIVE AWARD TO THE CLASS REPRESENTATIVES

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 2 of 41
TABLE OF CONTENTS
I. Introduction.......................................................................................................................... 1 II Procedural Background........................................................................................................ 1 III. Tenns of the Settlement and Settlement Administration.....................................................2 IV. Standards and Procedures for Final Approval of Class Action Settlements........................4
A. Application of Girsh Factors...................................................................................7 1. Complexity, Expense and Likely Duration of the Litigation.......................7 2. The Absence of Objections is Evidence of the Reasonableness of the Settlement. ................................................................................................... 8 3. Stage ofthe Proceedings and the Amount of Discovery Completed...........9 4. Risks of Establishing Liability and Establishing Damages.........................9 5. Risk of Maintaining the Class Action Through The Trial......................... 10 6. Ability of the Defendants to Withstand Greater Judgment........................ l 0 7. Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery and the Attendant Risks of Litigation......................... 10
B. The Plan of Distribution of the Settlement Fund is Fair........................................ 12 C. Class Counsels' Request for Reimbursement of Expenses Should Be
Approved................................................................................................................ 13 D. The Incentive Award to the Class Representatives Should Be
Approved................................................................................................................ 13 E. Class Counsels' Request for Attorneys' Fees is Reasonable and Should be
Approved by the Court........................................................................................... 14 V. Certification of the Proposed Settlement Class is Appropriate to Resolve All Strip
Search Claims Against Defendants.................................................................................... 19 A. The Elements of Rule 23(a) are Satisfied in the Present Case...............................20
1. Numerosity Under Rule 23(a)(1)...............................................................20 2. Commonality Under Rule 23(a)(2)............................................................21 3. Typicality Under Rule 23(a)(3).................................................................22 4. Adequacy Under Rule 23(a)(4)..................................................................24 B. The Requirements of Rule 23(b)(3) Are Met in the Settlement Context...............26 VI. Conclusion.........................................................................................................................30

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 3 of 41
TABLE OF AUTHORITIES
Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997)........................................................................................passim
Armstrong v. Board o/School Directors o/the City o/Milwaukee, 616 F.2d 305 (7th Cir. 1980) )..................................................................................6
Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994).................................................................................21, 22
Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998)...................................................................................20
Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir. 1993)...................................................................................8, 9
Bizzarro v. Ocean County, 2009 WL 1617887 (D.N.J. June 9, 2009)..............................................................20
Blihovde v. St. Croix County, Wis., 219 F.R.D. 607 (W.D. Wis. 2003).............................................................20, 23, 24
Bogosian v. GulfOil Corp., 561 F.2d 434 (3d Cir. 1977)...................................................................................23
Boiselle v. Mercer County, 3:06-CV-2065 (D.N.J.).......................................................................................... 16
Bowers v. City 0/Philadelphia,
2006 WL 2818501 (E.D. Pa. Sept. 28, 2006)............................................21, 24, 26
Bronson v. Board o/Educ.o/the City School Dist. o/the City o/Cincinnati, 604 F. Supp. 68 (S.D. Ohio 1984)...........................................................................5
Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir. 1974)....................................................................................5
Califano v. Yamaski, 42 U.S. 682 (1979)................................................................................................28
Calvin v. Sheriff0/ Will County,
2004 WL 1125922 (N.D. Ill. May 17, 2004).........................................................20
Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)...................................................................................................5
11

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 4 of 41
Cook v. Rockwell Int'l Corp., 151 F.RD. 378 (D. Colo. 1993)............................................................................25
Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)............................................................................... 11
Delandro v. County ofAllegheny, Civ. No. 06-927 (W.D. Pa. Aug. 8, 2008)............................................................. 19
Dietrich v. Bauer, 192 F.RD. 119 (S.D.N.Y. 2000).....................................................................25, 27
Dodge v. County ofOrange, 209 F.R.D. 65 (S.D.N.Y. 2002).............................................................................20
Dodge v. County ofOrange, 226 F.RD. 177 (S.D.N.Y. 2005)...............................................................20, 22, 28
Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985)................................................................................... 19
Erie County Retirees' Ass'n v. County ofErie, 192 F. Supp. 2d 369 (W.D. Pa. 2002)..............................................................14, 15
Erie Forge and Steel, Inc. v. Cyprus Minerals Co., Civ. Action No. 94-404 (W.D. Pa.1996)............................................................... 17
Fisher Bros. v. Phelps Dodge Indus., Inc., 604 F. Supp. 446 (E.D. Pa. 1985)......................................................................5, 11
Florence v. Board ofChosen Freeholders ofthe County ofBurlington, 2008 U.S. Dist. Lexis 22152 (D.N.J. March 20,2008)...................................20, 22
Florence v. County ofBurlington, Civ. Action No. 05-3619 (D.N.J.)............................................................................9
Fox v. Integra Financial Corp., Civ. Action No. 90-1504 (W.D. Pa. 1996)............................................................ 17
Fry v. Hayt, Hayt & Landau, 198 F.RD. 461, 470 (E.D. Pa. 2000)...................................................................... .5
Genden v. Merrill Lynch, 700 F. Supp. 208 (S.D.N.Y. 1998)........................................................................ 14
111

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 5 of 41
Gen. Tel. Co. ofSouthwest v. Falcon 457 U.S. 147 (1982).........................................................................................22, 23
Girsh v. Jepson, 521 F.2d 1153 (3d Cir. 1975).............................................................................6, 10
Godshall v. Franklin Mint Co., 2004 WL 2745890 (E.D. Pa. Dec. 1, 2004)........................................................... 14
Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000)................................................................................... 15
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)................................................................................ 19
Hayworth v. Blondery Robinson & Co., 980 F.2d 912 (3d Cir. 1992).................................................................................. .23
Hicks v. County ofCamden, No. 1:05-cv-1857 (D.N.J.)..................................................................................... 16
Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339 (N.D. Ill. 1978)...............................................................................27
In re Asbestos Sch. Litig., 104 F.R.D. 422 (E.D. Pa. 1984).................................................................22, 23, 24
In re AT&T Corp., 455 F.2d 160 (3d Cir. 2006)...............................................................................6, 15
In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001)...................................................................5, 10, 14, 16
In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F. Supp. 659 (D. Minn.1974).......................................................................5, 11
In re Corel Corp. Inc. Securities Litig., 293 F. Supp. 2d 484 (E.D. Pa.2003)................................................................ 17, 18
In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981)....................................................................................6
In re Datatec Systems, Inc. Securities Litig., 2007 WL 4225828 (D.N.J. Nov. 28, 2007)....................................................passim
IV

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 6 of 41
In re Gen. Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995).....................................................................................passim
In re Greenwich Pharmaceutical Securities Litig., 1995 WL 251293 (W.D. Pa. Apr.26, 1995)........................................................... 17
In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166 (E.D. Pa. 2000)............................................................................. 12
In re Insurance Brokerage Antitrust Litigation, 2007 WL 2916472 (D.N.J. Oct. 5, 2007)............................................................... 14
In re Kirschner Medical Corp. Sec. Litig., 139 F.R.D. 74 (D. Md. 1991).................................................................................30
In re Linerboard Antitrust Litig., 2004 WL 1221350 (E.D. Pa. June 2, 2004)...........................................................14
In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998)........................................................................... 18
In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006)...................................................................................28
In re Prudential Ins. Co. ofAm. Sales Practices Litig., 148 F.3d 283 (3d Cir. 1998)...........................................................................passim
In re Ravisent Tech., Inc. Securities Litig., 2005 WL 906361 (E.D. Pa. Apr. 18, 2005)........................................................... 16
In re Remeron Direct Purchaser Antitrust Litig., 2005 U.S. Dist. Lexis 27013 (D.N.J. Nov. 9, 2005).............................................. 17
In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003)........................................................13, 14, 18
In re Rite Aid Corp. Sec. Litig., 396 F.3d 294 (3d Cir. 2005).........................................................................6, 14, 18
In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72 (D.N.J. 2001)....................................................................10, 13
In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525 (E.D. Pa.1990).............................................................................8
v

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 7 of 41
In re Sugar Industry Antitrust Litig., 73 F.R.D. 322 (B.D. Pa. 1976)...............................................................................27
In re Teletronics Pacing Systems, Inc., 172 F.R.D. 271 (S.D.Ohio 1997)...........................................................................27
In re Vicuron Pharmaceuticals, Inc. Securities Litig., 2007 WL 1575003 (E.D. Pa. May 31, 2007)................................................... 16, 18
In re Warfarin Sodium Antitrust Litig. 391 F.3d 516 (3d Cir. 2004)................................................................................... 10
Kahler v. County ofRensselaer, No. 03-CV-1324 (N.D.N.Y. 2004)........................................................................20
Lake v. First National Bank, 900 F. Supp. 726 (E.D. Pa. 1995).......................................................................... 11
Lan v. Ludrof, 2008 WL 763763 (W.D. Pa. March 21,2008)..................................... 13, 14, 16, 17
Lazy Oil Co. v. Witco Corp., 95 F. Supp. 2d 290 (W.D. Pa. 1997)................................................................ 13, 14
Lenahan v. Sears, Roebuck and Co., 2006 WL 2085282 (D.N.J. July 24, 2006)............................................................. 17
Lewis v. Curtis, 671 F.2d 779 (3d Cir. 1982)...................................................................................25
Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65 (D.N.J. 1993)..................................................................................20
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)...................................................................................23
Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000)..............................................................................28
Marriott v. County ofMontgomery, 227 F.R.D. 159 (N.D.N.Y. 2005)...................................................................passim
Marriott v. County ofMontgomery, 426 F. Supp. 2d 1 (N.D.N.Y.2006)........................................................................20
VI

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 8 of 41
Mitchell v. County ofClinton, 2007 WL 1988716 (N.D.N.Y. July 5, 2007).........................................................20
Moskowitz v. Lopp, 128 F.R.D. 624 (E.D. Pa. 1989).............................................................................21
Protective Comm. For Indep. S'holders ofTMT Trailer Ferry, Inc. v. Anderson,
390 u.s. 414 (1968).................................................................................................5
Roberts v. Texaco, 979 F. Supp. 185 (S.D.N.Y. 1997)........................................................................ 14
Scholes v. Stone, McGuire & Benjamin, 143 F.RD. 181 (N.D. Ill. 1992).............................................................................23
Smith v. Dominion Bridge Corp., 2007 WL 1101272 (E.D. Pa. April 11, 2007)........................................................ 17
Stoetzner v. Us. Steel Corp., 897 F.2d 115 (3d Cir. 1990)....................................................................................8
Suggs v. The County ofCumberland No. 1:06-cv-00087 (D.N.J.)................................................................................... 16
Sutton v. Hopkins County, 2007 WL 119892 (W.D. Ky. Jan. 11, 2007)........................................22, 24, 28, 29
Tardiffv. Knox County, 218 F.RD. 332 (D. Me. 2003).........................................................................20, 28
Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956 (3d Cir.1983).................................................................................... 12
Walsh v. Pittsburgh Press Co., 160 F.RD. 527 (W.D. Pa. 1994)........................................................................... 19
Weisfeld v. Sun Chem. Corp., 210 F.R.D. 136 (D.N.J. 2002)................................................................................24
Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984)...................................................................................23
Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. 1975).............................................................................20, 24
Vll

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 9 of 41
Williams v. County ofNiagara, 2008 WL 4501918 (W.D.N.Y. Sept. 29, 2008).....................................................20
Williams v. First Nat 'I Bank, 216 U.S. 582 (1910).................................................................................................4
Wilson v. The County ofGloucester, 2009 U.S. Dist. LEXIS 25336 (D.N.J. March 30, 2009)...............................20, 22
Yangv.Odum, 392 F.3d 97 (3d Cir. 2004).....................................................................................28
Zinberg v. Washington Bancorp., Inc., 138 F.R.D 397 (D.N.J. 1990).................................................................................21 RULES
Fed. R. Civ. P. 23.......................................................................................................passim Fed R. Civ. P. 54................................................................................................................ 14
TREATISES Herbert Newberg & Alba Conte, 1 Newberg on Class Actions, §3.1O (1992)..................21 Herbert Newberg & Alba Conte, 2 Newberg on Class Actions, §7.24 (1992)..................25 Herbert Newberg & Alba Conte, 3 Newberg on Class Actions, §14.03 (1992)................ 18 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1754........................30
Vlll

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 10 of 41
I. Introduction On behalf of the Settlement Class certified for settlement purposes by the Court
on April 8, 2009, Plaintiffs Jennifer Reynolds, Ashley McCormick, and Devon Shepard and Class Counsel hereby move, together with Defendant, Dauphin County, for final approval of the class action settlement, including an award of counsel fees, expenses, and incentive payments to the Class Representatives. Class Counsel respectfully suggests to the Court that the $2,160,500.00 settlement of the Class Members' claims against Dauphin County provides Class Members with excellent relief for this case and should be approved by the Court. II. Procedural Background
This case was commenced in September 2007 by the filing of a complaint. The parties engaged in extensive discovery, including serving and responding to interrogatories and document requests, reviewing hundreds of documents, conducting numerous depositions, and interviewing fact witnesses. After the completion of discovery but before a class certification motion was filed, the parties agreed to enter into settlement discussions. Settlement negotiations began in July 2008, when the parties met for a mediation session conducted by Judith Meyer, Esquire. The Settlement Agreement was executed January 26,2009.
Plaintiffs moved for preliminary approval on January 28,2009 and the Court provided preliminary approval of the Settlement Agreement on April 8, 2009. Notice was then mailed to the Class Members and notice was published in accordance with the Settlement Agreement. Additional notice efforts were also undertaken. See LaDuca Cert. ~4; LaDuca Cert. Ex. A (Affidavit of Jose C. Fraga) at ~~3-4, 6-7. Class Members had until September 29,2009 to file claims. A total of2,288 claims have been received
1

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 11 of 41
(of which 527 appear to have been from individuals not preliminarily identified as being valid Class Members). LaDuca Cert. Ex. A at ~9. Also, there has not been a single request for exclusion from the Settlement and only one objection was received. LaDuca Cert. at ~13. Plaintiffs now move for final approval of the Settlement and all its constituent parts. III. Terms of the Settlement and Settlement Administration
The proposed Settlement Class consists of all persons brought to the County Prison after being charged with misdemeanor offenses (or other minor crimes) and were subsequently strip searched upon their entry into the Prison pursuant to the policy, custom and practice of the County of Dauphin (the "Settlement Class"):
All persons who have been or will be placed into the custody ofthe Dauphin County Prison after being charged with misdemeanors, summary offenses, violations ofprobation or parole or intermediate punishment, civil commitments, or minor crimes who were strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to March 12,2008. Specifically excluded from the class is Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or aSSIgnees. The settlement creates a fund of $2,160,500.00 (the "Settlement Fund"). All administrative expenses, including the costs of settlement administration, website administration and the provision of notice to Class Members, as well as the amounts awarded by the Court for attorneys' fees and costs and incentive award to the Class Representatives (in the requested amount of $15,000 to Reynolds and McCormick, and $10,000 to Shepard), will be deducted from the Settlement Fund prior to determining the amount of distribution for Class Members. I In the event that the pro rata share of the
1 The precise recovery from the Settlement Fund to Class Members, and the timing of distributions, will be determined by the Plan ofDistribution. Members ofthe Settlement Class will then receive their pro rata
2

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 12 of 41
settlement paid to Class Members would be greater than $1,400.00, the Defendant's insurance company, States Self-Insurers Risk Retention Group, Inc., will receive a reverter of all remaining funds.
Pursuant to the Court's preliminary approval order, the Settlement Administrator (1) mailed notice of the settlement (the "long form notice") to all members of the Settlement Class, (2) placed a summary of the long-form notice (the "short-form notice") in the Harrisburg Patriot News at least one day per week for three consecutive weeks and on one occasion during the last ten days of the claims period. Advertisements were also broadcast on television on four separate weeks. See LaDuca Certification Exhibit A (Fraga Affidavit) ~4. In addition, at Class Counsel's request, Garden City also established an Interactive Voice Response system which received 2,483 calls. All told, 8,779 Claim Packets were mailed (including reminder and duplicate mailings). See LaDuca Certification Exhibit A (Fraga Affidavit) ~8.
Class Counsel made supplemental efforts to increase the claims rate. Individuals who had not responded to the initial mailing for whom Garden City was able to obtain valid telephone numbers received a pre-recorded message reminder, see LaDuca Cert. Exhibit A (Fraga Affidavit) ~6), and a reminder mailing was sent to Class Members with deliverable addresses that included a reminder of the upcoming claims deadline, as well as another set of claims forms. See LaDuca Cert. Exhibit A (Fraga Affidavit) ~7.
The claims period concluded on September 29, 2009. A total of 2,288 Claim Forms have been received (527 of which have been identified as not being from valid Class Members - that is, from individuals for whom there is not a Dauphin County Jail
share ofthe distribution amount which counsel believes, based on claims data set forth in the Affidavit of Jose C. Fraga, will be less than the $1,400 maximum amount permitted under the Settlement Agreement, see SA at I1I(C)(I), (3).
3

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 13 of 41
booking sheet showing that individual is a class member). LaDuca Cert. Ex. A (Fraga Affidavit) ~9. This is a claims rate of 34%, id, which is within the typical rate of return of claims in strip search class actions. 2
Notably, not a single individual has opted-out of the settlement and only one person has objected to it. Based on the number of claims received, Settlement Class Members will receive approximately $680 as their pro rata share of the Settlement Fund. See LaDuca Cert. ~5. As a consequence, Class Counsel believes that there will be no reverter arising from this Settlement. IV. Standards and Procedures for Final Approval of Class Action Settlements
"Compromises of disputed claims are favored by the courts." Williams v. First Nat 'I Bank, 216 U.S. 582, 595 (1910); In re Prudential Ins. Co. ofAm. Sales Practices Litig., 148 F.3d 283,317 (3d Cir. 1998) ("Prudential 11'). Settlement spares the litigants the uncertainty, delay and expense of a trial, while simultaneously reducing the burden on judicial resources.
Federal Rule of Civil Procedure 23(e) of the Federal Rules of Civil Procedure mandates that a class action cannot be settled without court approval:
A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 617 (1997); Prudential II, 148 F.3d at 316. In a class action, the "court plays the important role of protector of the [absent members'] interests, in a sort of fiduciary capacity." In re Gen. Motors Corp. Pick-up
2 Plaintiffs' initial estimate of the class size was 5,721. A thorough review ofthe class size data revealed, however, that the Settlement Class actually consists of 6, 618 individuals. Considering only the valid claims received to date, the claims rate is approximately 27%.
4

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 14 of 41
Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995). The ultimate determination whether a proposed class action settlement warrants approval resides in the court's discretion. Protective Comm. For Indep. S'holders ofTMT Trailer Ferry, Inc. v.
Anderson, 390 u.s. 414, 424-25 (1968); Approval of a settlement is warranted if the
settlement is fair, reasonable, and adequate. Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 470 (E.D. Pa. 2000); In re Cendant Corp. Litig., 264 F.3d 201, 231 (3d Cir. 2001).
While the Court has discretion in determining whether to approve a settlement, it should be hesitant to substitute its judgment for that of the parties who negotiated the settlement. Fisher Bros. v. Phelps Dodge Indus., Inc., 604 F. Supp. 446, 452 (E.D. Pa. 1985). "Courts judge the fairness of a proposed compromise by weighing the plaintiff's likelihood of success on the merits against the amount and form of the relief offered in the settlement. They do not decide the merits of the case or resolve unsettled legal questions." Carson v. Am. Brands, Inc., 450 U.S. 79,88 n.14 (1981) (citation omitted). The court may rely on the judgment of experienced counsel and should avoid transforming the hearing on the settlement into a trial on the merits. Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799,804 (3d Cir. 1974).
The procedure of providing notice to the class, followed by a hearing to consider approving a class settlement, is now standard practice in this Circuit, as well as throughout the Country. Prudential II, 148 F.3d at 326-27; see also Bronson v. Board of Education of the City School District of the City of Cincinnati, 604 F. Supp. 68 (S.D. Ohio 1984).
This Court previously granted preliminary approval of the Settlement, signifying that the Settlement was in the range of possible approval. However, the ultimate Rule
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23(e) determination is reserved pending the completion of the notice and initial opt-out
process, so the Court can consider input from the Class Members who will be bound by
the final approval Order. See General Motors, 55 F.3d 768; In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981); Armstrong v. Board of School Directors ofthe City ofMilwaukee, 616 F.2d 305 (7th Cir. 1980). Now that a full plan of
notice has been effectuated and the deadline for objections and opt-outs period has
passed, the Court may consider final approval of the Settlement.
The Third Circuit has identified nine factors - the Girsh factors - that a district
court should consider when determining whether a proposed class action settlement
warrants approval. In re Datatec Systems, 2007 WL 4225828, *2 (citing Girsh, 521 F.2d
at 157). These include:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
See also In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 301 (3d Cir. 2005).3 The
3 The Girsh factors are not exhaustive, however, and the Third Circuit has advised that the District court may consider other relevant factors in determining whether [mal approval should be granted. In re AT & T Corp., 455 F.3d 160, 165 (3d Cir.2006) (citing In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283,323 (3d Cir.1998».These may include, e.g.:
[T]he maturity of the underlying substantive issues, as measured by the experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved-or likely to be achieved-for other claimants; whether class or subclass
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Settlement before the Court in this case falls well within the range of possible approval, taking into consideration all relevant factors, and, therefore, final approval of the Settlement should be granted.
A. Application of the Girsh Factors 1. Complexity, Expense and Likely Duration of the Litigation
If this litigation were to proceed, significant expense and delay would result which likely would not benefit Class Members. As stated above, the discovery conducted in this case has been significant. If Plaintiffs were to continue to trial, the remaining discovery would be complex and expensive. Moreover, there would be full briefing on a motion for class certification and, potentially, dispositive motions that would take more time. Even beyond the dispositive motions, pretrial activities would take additional time and, should it be reached, a trial in this action would last for weeks, with multiple jail employees being examined about the practices of the Dauphin County Jail in an effort to establish municipal liability. The Settlement removes the overwhelming and redundant costs of individual trials. Indeed, if certification is not granted, even having a small proportion of Class Members have duplicative trials on this issue would be an enormous waste of judicial resources, and would not be the superior and appropriate way to resolve this controversy.
members are accorded the right to opt out of the settlement; whether any provisions for attorneys' fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable. Prudential IL 148 F.3d at 323.
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2. The Absence of Objections is Evidence of the Reasonableness of the Settlement
It is clear that a pro rata share of the distribution amount, which is approximately $680 per Settlement Class member for the indignity at issue, is quite fair and reasonable, given the inherent risks of litigation and consistent with the awards in similar cases.
As described above, the notice has been given to the Class. One objection was received and no individuals excluded themselves from the Settlement. When determining the measure of the class's reaction to a settlement, the court must look to the number and "vociferousness" of the objectors. General Motors, 55 F.3d at 812. Here, the response of the Class represents a reliable barometer of the overall fairness of the Settlement itself. See Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1313 n.15 (3d Cir. 1993).
Additionally, the number of claims filed on the Settlement IS, as noted, commensurate with, or greater, than claims rates in other strip search cases. Here, the current claims rate is 34% (or, approximately 27% considering only those claims which the claims administrator has identified as being valid), see LaDuca Cert. Exhibit A (Fraga Affidavit) ~9, a rate within the range of strip search settlements. See Chart of Strip Search Settlements, attached hereto as Exhibit A. The fact that the Class Members responded and made claims at such a rate, coupled with the fact that there have been no opt-outs and only one objector, shows that the reaction of the Class to the proposed settlement has been overwhelmingly positive. See, e.g. In re Datatec Systems, 2007 WL
4225828, *3 (citing Stoetzner v. u.s. Steel Corp., 897 F.2d 115, 118-19 (3d Cir. 1990)
(finding that 29 objectors out of 281 Class Members "strongly favors settlement"); In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525, 530 (E.n. Pa. 1990) ("Both the utter absence of objections and the nominal number of shareholders who have exercised
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their right to opt out of this litigation militate strongly in favor of approval of the settlement.").
3. Stage of the Proceedings and the Amount of Discovery Completed
This factor requires the Court to analyze the stage of the proceedings to determine "the degree of case development that... counsel have accomplished prior to the settlement. General Motors, 55 F.3d at 813. Essentially, the Court must ensure that the Settlement is not the product of a quick and uniformed decision making process. It has been generally understood by the Third Circuit that settlements made after discovery reflect the true value ofthe claim. Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993). Here, Class Counsel took numerous depositions and reviewed hundreds of documents. Thus, this factor likewise weighs in favor of approval.
4. Risks of Establishing Liability and Establishing Damages The Court must determine whether the proposed Settlement is within a range which experienced attorneys could accept in light of the relevant risks of the litigation. General Motors, 55 F.3d at 806. Here, as noted, the settlement range is well within that obtained in other, similar cases and was, as set forth below, obtained by attorneys experienced in this particular area of practice. In addition, there has been the creation of some uncertainty in the law regarding whether visual strip searches violate the United States Constitution and while district courts in this Circuit have found such liability to exist, attempts are being made to take the issue to the Third Circuit. See Florence v. County ofBurlington, Civ. Action No. 053619 (D.N.J.). Further, given the credibility jurors often give to law enforcement testimony and the fact that it would have been difficult for Plaintiff to prove and recover
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damages for harms that were often dignitary rather than pecuniary, Class Counsel faced a risk of a low damage award. There are risks associated with trying this case before a jury in that there would be "no guarantee whom the jury would believe." In re Cendant Corp. Litig., 264 F.3d 201, 239 (3d Cir. 2001). Thus, this factor also weighs in favor of approval of the settlement.
5. Risk of Maintaining the Class Action Through the Trial After the Supreme Court's opinion in Amchem, 521 U.S. 591 (1997), this factor "may not be significant to a court's determination of the approval of a settlement. Prudential II, 148 F.3d at 321. Particularly because this is a settlement class, this factor adds little to the consideration of the fairness of the settlement." In re Safety Components Inc. Sec. Litig., 166 F. Supp. 2d 72, 91 (D.N.J.2001). Here, in any event, the Class was not certified for litigation purposes, only for settlement, though the risk of obtaining certification and maintaining it, however, was real. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516,537 (3d Cir. 2004).
6. Ability of the Defendants to Withstand Greater Judgment This Girsh factor "is concerned with whether the defendants could withstand a judgment for an amount significantly greater than the settlement." Cendant, 264 F.3d at 240. Plaintiffs believe that the Settlement constitutes the limits of Defendant's ability to pay and could only have been concluded with the use of insurance money Dauphin County.
7. Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery and the Attendant Risks of Litigation
The fairness of the settlement process and of the Settlement Agreement itself also
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was shaped by the experience and reputation of counsel, an important factor in final approval of class action settlements. See General Motors, 55 F.3d at 787-88; Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F. Supp. 659 (D. Minn.1974) ("The recommendation of experienced antitrust counsel is entitled to great weight. "); Fisher Brothers v. Phelps Dodge Industries, Inc., 604 F. Supp. 446 (E.D. Pa. 1985) ("The professional judgment of counsel involved in the litigation is entitled to significant weight. "). This Settlement was specifically negotiated by experienced counsel to meet all the requirements of Rule 23 as discussed in Amchem, and specifically to provide administrative procedures to assure all Class Members equal and sufficient due process rights. Accordingly, the Settlement was not the product of collusive dealings, but, rather, was informed by the vigorous prosecution of the case by the experienced and qualified counsel. Further, continued litigation would be long, complex and expensive, and a burden to court dockets. Lake v. First National Bank, 900 F. Supp. 726 (E.D. Pa. 1995) (expense and duration oflitigation are factors to be considered in evaluating the reasonableness of a settlement).
There is no reason to doubt the fairness of the proposed Settlement Agreement. The Settlement Agreement was the result of months of good faith, arm's length negotiations between experienced and informed counsel on both sides. The proposed Settlement Agreement does not unduly grant preferential treatment to the Class Representatives or to segments of the Settlement Class, and it does not provide excessive compensation to Counsel. Moreover, as noted, courts have approved class action settlements paying victims of illegal strip searches in the range likely to be paid here. Thus, the Settlement Agreement gives Class Members the benefit of a significant amount
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of compensation, comparable to analogous cases, without having to prove particular emotional distress or the particular circumstances of a search. Those who believed they would have been entitled to significantly more could, of course, have opted out and pursed an independent remedy - and none chose that alternative. The Settlement here is fair and on par with other settlements in similar cases.
B. The Plan of Distribution of the Settlement Fund is Fair The "[a]pproval of a plan of allocation of a settlement fund in a class action is 'governed by the same standards of review applicable to approval of the settlement as a whole: the distribution plan must be fair, reasonable and adequate. '" In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 184 (E.D. Pa. 2000) (citations omitted); see also Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956,964 (3d Cir.1983) ("The Court's principal obligation is simply to ensure that the fund distribution is fair and reasonable as to all participants in the fund."). The Plan of Distribution (Exhibit C to LaDuca Cert.) provides that Class Counsel will seek to be reimbursed for costs and attorneys' fees of no more than thirty percent of the Settlement Fund. Class Counsel proposes that $40,000 be allocated to pay an incentive award to Class Representatives Jennifer Reynolds, Ashley McCormick, and Devon Shepard. After these costs and the costs of notice and claims administration, approximately $1,198,650 will be available to distribution on a pro rata basis to the class, which will, based upon claims to date, most likely be an amount of approximately $680 per class member. See LaDuca Cert. ~ 5; LaDuca Cert. Ex. C. Class Counsel believes that the Plan of Distribution is eminently fair, reasonable, and adequate.
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C. Class Counsels' Request for Reimbursement of Expenses Should Be Approved
"Counsel for a class action IS entitled to reimbursement of expenses that were adequately documented and reasonably and appropriately incurred in the prosecution of the class action." In re Datatec Systems, 2007 WL 4225828, *9 (quoting In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 108 (D.N.J. 2001)); In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491,519 (W.D. Pa. 2003) ("There is no doubt that an attorney who has created a common fund for the benefit of the class is entitled to reimbursement of... reasonable litigation expenses from that fund.").
Class Counsel requests reimbursement of expenses in the amount of $18,700 to cover costs associated with legal research, travel, mediation, meals, transportation, court fees, mailing, postage, and telephone. These reasonable expenses are documented on the books of Class Counsel and are reasonable in relation to the Settlement Fund and should be awarded. LaDuca Cert. at ~5, 18. See Lan v. Ludrof, 2008 WL 763763 (W.D. Pa. March 21, 2008) (reimbursement of expenses in the amount of $66,080.81); Rent-Way, 305 F. Supp. 2d at 519 ($283,907 awarded in expenses); Lazy Oil Co. v. Witco Corp., 95 F. Supp. 2d 290,324 (W.D. Pa. 1997) ($486,165).
D. The Incentive Award to the Class Representatives Should Be Approved
The Settlement Agreement provides for an incentive award for Class Representatives Reynolds and McCormick of $15,000, and for Class Representative Shepard of $10,000. The Class Representatives provided support to this litigation by agreeing to step forward to serve as the Class Representatives, providing responses to discovery requests, and making themselves available to be deposed. The awards to the
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Class Representatives are exceedingly modest, reasonable and should be approved. The law recognizes that it is appropriate to make modest awards in the range of $1,000 to $20,000 in recognition of the services that such plaintiffs perform in a successful class action. See In re Insurance Brokerage Antitrust Litig., 2007 WL 2916472, *8 ($10,000 incentive award to each plaintiff, resulting in total payment of $250,000); Lazy Oil, 95 F. Supp. 2d at 345, 324-25 (incentive awards of $5,000 to $20,000 awarded); Godshall v. Franklin Mint Co., 2004 WL 2745890, *4 (E.D. Pa. Dec. 1, 2004) ($20,000 to each named plaintiff); In re Linerboard Antitrust Litig., 2004 WL 1221350, *18-19 (E.D. Pa. June 2, 2004) (granting award of $25,000 to each of the five class representatives); Roberts v. Texaco, 979 F. Supp. 185,205 (S.D.N.Y. 1997); Genden v. Merrill Lynch, 700 F. Supp. 208,210 (S.D.N.Y. 1998) (granting incentive awards of $20,085 for each class representative).
Class Counsel respectfully requests that the incentive award be approved. E. Class Counsels' Request for Attorneys' Fees Is Reasonable and
Should be Approved by the Court Pursuant to Rule 23(h) and Rule 54(d)(2), Class Counsel seeks an award of attorneys' fees and costs in the amount of $648,150.00, or 30% of the common fund created by the Settlement. After extensive negotiation, Defendant agreed to pay this amount of the fund as attorneys' fees and not oppose Class Counsel's application. This Court uses the "percentage-of-recovery" method in determining attorneys' fee awards in common fund cases, subject to a "lodestar/multiplier" cross-check. General Motors, 55 F.3d at 821; Rite Aid, 396 F.3d at 300; Cendant, 264 F.3d at 256; Rent-Way, 305 F. Supp. 2d at 512-13,516-17; Erie County Retirees' Ass'n v. County ofErie, 192 F. Supp. 2d 369, 377-78 (W.D. Pa. 2002); Lazy Oil, 95 F. Supp. 2d at 322-23; Lan, 2008
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WL 763763, *18; In re Datatec System, 2007 WL 4225828, *6. The Third Circuit has identified several factors that a district court should consider in detennining an award of attorneys' fees. These factors include:
(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement tenns and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiff's counsel; and (7) the awards in similar cases. Rite Aid, 396 F.3d at 301 (citing Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n. 1 (3d Cir. 2000). Each of these factors favors the requested award of attorneys' fees. First, the fund created by the Settlement is $2,160,500.00 and the Settlement Class consists of6,618 individuals. LaDuca Cert. Ex. A (Fraga Affidavit) at '5,9. The Settlement is fair, reasonable, and adequate, and the Settlement Class is large. This factor therefore weights in favor of granting the fee request. See, e.g., Erie County Retirees' Ass'n., 192 F. Supp. 2d at 381 ("Fee awards ranging from thirty to forty-three percent have been awarded in cases with funds ranging from $400,000 to $6.5 million..."). Second, as noted above, Class Members received notice of the Settlement tenns and the amount of attorneys' fees that Class Counsel would be applying for. Only one objection has been filed with respect to the reverter in particular and, as noted previously, in light of the high claims rate, it is believed that no reverter will take effect. Further, no Class Members have opted out of the Settlement. Accordingly, this factor too favors the requested attorneys' fee award. See, e.g., In re AT&T Corp., 455 F.3d at 170 (district court did not abuse discretion in finding that second factor weighed strongly in favor of approval where there were 8 objections out of one million potential class members).
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Third, the Class is represented by experienced counsel who have invested time and resources into the prosecution of this action and have served as Class Counsel in numerous class actions including strip search class actions. "The fact that not a single objection has been filed to the Settlement... is strong evidence that counsel for the Class have achieved a very good result for the Class." Lan, 2008 WL 763763, *23.
Fourth, the duration of this litigation also weighs in favor of the award of attorneys' fees. Counsel have litigated this case for over two years. There is no doubt that "[t]he Settlement saves the parties substantial time and money." In re Datatec Systems, 2007 WL 4225828, *7.
Fifth, the risk of nonpayment is significant. Class Counsel "undertook this action on a contingent fee basis, assuming a substantial risk that they might not be compensated for their efforts. Courts recognize the risk of non-payment as a factor in considering an award of attorneys' fees." In re Datatec Systems, 2007 WL 4225828, *7 (citation omitted).
Sixth, Class Counsel have committed approximately 1,252.45 hours through the course of this litigation to date, all of which was devoted on a contingency basis with no guarantee of repayment. LaDuca Cert. at ~15.
Lastly, the requested percentage of the Settlement Fund of 30% is commensurate with other settlements. For example, the fee request approved in Suggs v. Cumberland County, 1:06-CV-00087 (D.N.J.), was 30% of the $4.5 million in that case and also 30% in Boiselle v. Mercer County, 3:06-CV-2065, ($1.8 million settlement). See also, Hicks v. County o/Camden, 1:05-CV-1857 (D.N.J.) (27.5% of a $7.5 million settlement); In re Vicuron Pharmaceuticals, Inc. Securities Litig., 2007 WL 1575003 (E.D. Pa. May 31,
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2007) (approving counsel fees equal to 25% of the $12.75 million settlement); Smith v. Dominion Bridge Corp., 2007 WL 1101272 (B.D. Pa. April 11, 2007) (approving fee award equal to 33.3% of $750,000 settlement fund); Lenahan v. Sears, Roebuck and Co., 2006 WL 2085282 (D.N.J. July 24,2006) (fees award equaled 30% of$15 million fund), affd, 2008 WL 466471 (3d Cir. Feb 21, 2008); In re Ravisent Tech., Inc. Securities Litig., 2005 WL 906361 at *10-12 (E.D. Pa. Apr. 18, 2005) (fee award equaled 33% of $7 million settlement); In re Remeron Direct Purchaser Antitrust Litig., No. 03-0085, 2005 U.S. Dist. Lexis 27013, *44 (D. N.J. Nov. 9,2005); Rite Aid, 396 F.3d at 306-07 (review of 289 settlements demonstrates "average attorney's fees percentage [of] 31.71 % with a median value that turns out to be one-third"); In re Corel Corp. Inc. Securities Litig., 293 F. Supp. 2d 484 (E.D. Pa. 2003) (awarding fees equal to 33.3% of $7 million fund); Erie Forge and Steel, Inc. v. Cyprus Minerals Co., Civ. Action No. 94-404 (W.D. Pa. 1996) (awarding 33.3% fee from $3.6 million recovery); Fox v. Integra Financial Corp., Civ. Action No. 90-1504 (W.D. Pa. 1996) (33.3% awarded where class recovery was $6.5 million); General Motors Co, 55 F.3d at 822 (in common fund cases "fee awards have ranged from nineteen percent to forty-five percent of the settlement fund"); In re Greenwich Pharmaceutical Securities Litig., 1995 WL 251293 (W.D. Pa. Apr. 26, 1995) (approving award equal to 33.3% of the $4.375 million settlement fund and noting that "cases with smaller settlement funds often include attorneys' fee awards that exceed the median of 25 percent"). "The fact that the requested fee represents a percentage of recovery at or below the traditional range for similarly situated settlements... supports the conclusion that it is reasonable." Lan, 2008 WL 763763, *25.
Courts confmn the reasonableness of an award based on a percentage of recovery
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by using the lodestar method. Rite Aid, 396 F.3d at 305-06. The lodestar analysis is performed by "multiplying the number of hours reasonably worked on a client's case by a reasonable hourly billing rate for such services based on the given geographical area, the nature of the services provided, and the experience of the attorneys." Id. at 305. The Court "should apply blended billing rates that approximate the fee structure of all the attorneys who worked on the matter." Id. at 306. If the lodestar multiplier, which is equal to the proposed fee award divided by the produce of the total hours and the billing rate, is large, the award calculated under the percentage-of-recovery method may be deemed unreasonable, and the Court may consider reducing the award. Id. The lodestar multiplier, however, "need not fall within any pre-defmed range, provided that the [d]istrict [c]ourt's analysis justifies the award." Id. at 307. "The court is not required to scrutinize every billing record but may, instead, rely on summaries submitted by the attorneys, and is not required to scrutinize every billing record. Id, 396 F.3d at 306-07.
"Multiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied." Prudential II, 148 F.3d at 341 (quoting 3 Herbert Newberg & Alba Conte, Newberg on Class Actions, §14.03 at 14-5 (3d ed. 1992); In re Vicuron Pharmaceuticals, Inc. Sec. Litig., 512 F. Supp. 2d at 287; In re Corel Corp. Inc., 293 F. Supp. 2d at 497; Rentway, 305 F. Supp. 2d at 517; In Re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1998). Here, considering the approximate hourly attorneys' fees to date, Class Counsel seeks a multiplier of approximately 1.25 based upon the total lodestar time to date of $518,112.5, see LaDuca Cert. at ~~15, 17, which is, as shown, is in the lower to middle range of typical awards. However, in all likelihood there will be extensive additional time in order
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to oversee the settlement and to handle a significant volume of calls from class members that will add at least 10% to the current lodestar, which will reduce the multiplier to 1.11, id., a number well within the range of reasonability, and particularly for a case in which the class's reaction has been overwhelmingly positive.
Class Counsel respectfully suggests that the counsel fee requested is reasonable in light of the time and labor expended by counsel, the magnitude of the litigation, the risks taken in the litigation, the monetary results achieved for the class, and the amount of the fee in proportion to the monetary settlement and injunctive relief achieved. It is particularly reasonable because Class Counsel should be rewarded, not penalized, for recognizing the strengths and weaknesses of the case and for being able to settle it quickly so as to obtain recompense for the Class, sooner rather than later.
v. Certification of the Proposed Settlement Class is Appropriate to Resolve All
Strip Search Claims Against Defendants The benefits of settlement classes are well-recognized. See Amchem, 521 U.S. 591; Prudential II, 148 F.3d 283; Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998). The Third Circuit has a clear preference for class certification: "The interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing a class action" Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985); see also Walsh v. Pittsburgh Press Co., 160 F.R.D. 527 (W.D. Pa. 1994). While the elements of Rule 23 are set forth below seriatim, it is worth noting that this Court, and other federal courts, in considering the situation where cities or counties have employed blanket search policies have consistently recognized the propriety of certifying such cases as class actions and the decisions certifying such cases are legion.4
4 See Delandro v. County ofAllegheny, Civ. No. 06-927 (W.D. Pa. Aug. 8,2008) (class certification in strip
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A. The Elements of Rule 23(a) are Satisfied in the Present Case
In order for a lawsuit to be maintained as a class action under Rule 23 of the
Federal Rules of Civil Procedure, the named plaintiff or plaintiffs must establish each of
the four threshold requirements of subsection (a) of the Rule, which provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). See e.g. Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir.
1998); Prudential II, 148 F.3d at 308-09; Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239
(3d Cir. 1975). Here, all four elements easily are satisfied.
1. Numerosity Under Rule 23(a)(I)
Rule 23(a)(I) requires that the class be "so numerous that joinder of all members
is impracticable." A plaintiff is not required to come before the Court and detail, to the
person, the exact size of the class or to demonstrate that joinder of all Class Members is
impossible. "Impracticability does not mean impossibility." Liberty Lincoln Mercury,
search class action against county); Wilson v. The County o/Gloucester, 2009 U.S. Dist. LEXIS 25336 (D.N.J. March 30, 2009) (class certification in strip search class action against county); Florence v. Board o/Chosen Freeholders o/the County o/Burlington, 2008 U.S. Dist. Lexis 22152 (D.N.J. March 20,2008) (class certification in strip search class action against county); Bizzarro v. Ocean County, 2009 WL 1617887 (D.N.J. June 9, 2009); Williams v. County o/Niagara, 2008 WL 4501918 (W.D.N.Y. Sept. 29,
2008); Mitchell v. County o/Clinton, 2007 WL 1988716 (N.D.N.Y. July 5, 2007); Marriott v. County 0/
Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005), affd, 2005 WL 3117194 (2d Cir. 2005) (class certification,
preliminary injunction in strip search class action litigated by present Class Counsel); Marriott v. County 0/
Montgomery, 426 F. Supp. 2d 1 (N.D.N.Y. 2006) (grant of summary judgment, permanent injunction and interim award ofattomeys' fees); Kahler v. County o/Rensselaer, No. 03-CV-1324 (N.D.N.Y. 2004) (preliminary approval order in strip search class action settlement, litigated by present Class Counsel); Dodge v. County o/Orange, 209 F.R.D. 65 (S.D.N.Y. 2002); Dodge v. County o/Orange, 226 F.R.D. 117 (S.D.N.Y. 2005); Calvin v. Sheriffo/Will County, 2004 WL 1125922 (N.D. Ill. May 17,2004); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607 (W.D. Wis. 2003); Tardiffv. Knox County, 218 F.R.D. 332 (D. Me. 2003), affd, 365 F.3d 1 (2004).
20

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 30 of 41
Inc. v. Ford Mktg. Corp., 149 F.RD. 65, 73 (D.N.J. 1993) ("precise enumeration of the members of a class is not necessary."); Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 405 (D.N.J. 1990) ("It is proper for the court to accept common sense assumptions in order to support a finding of numerosity."); Moskowitz v. Lopp, 128 F.RD. 624, 628 (E.D. Pa. 1989). Numerosity is indisputable here. During the course of the case, Defendants produced booking records for individuals charged with misdemeanor or other minor offenses during the Class period. Notice was mailed to thousands of individuals and numerosity is thus not at issue. See e.g. Bowers v. City ofPhiladelphia, 2006 WL 2818501, *2-3 (E.D. Pa. Sept. 28, 2006) (numerosity exists where over 300 individuals had allegedly been subjected to unconstitutional conditions at PPS facilities and where the proposed class, which includes future detainees, could include thousands of people); Marriott, 227 F.RD. at 171 (numerosity found in strip search class action where class numbered over 2,000).
2. Commonality Under Rule 23(a)(2) Rule 23(a)(2) requires that there be "questions of law or fact common to the class." The commonality requirement is met if Plaintiffs grievance shares a common question of law or of fact. Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). Rather than requiring that all questions of law or fact be common, Rule 23 only requires that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members." Fed. R Civ. P. 23(b)(3). A plaintiff is not required to show that all Class Members' claims are identical to each other as long as there are common questions at the heart of the case; "factual differences among the claims of the putative Class Members do not defeat certification." Baby Neal, 43 F.3d at
21

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 31 of 41
56; Prudential II, 148 F.3d 283. Indeed, a single common question is sufficient to satisfy the requirements of Rule 23(a)(2). See H Newberg & A. Conte, 1 Newberg on Class Actions § 3.10, at 3-50 (1992); accord Baby Neal, 43 F.3d at 56. A party is entitled to certification where the class claims arise "from a 'common nucleus of operative fact' regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants." In re Asbestos Sch. Litig., 104 F.R.D. 422, 429 (B.D. Pa. 1984).
Applying these principles, it becomes manifest that the commonality requirement of subsection (a)(2) is easily met here. The central issues posed by this litigation are: a) did Defendant have an blanket strip search policy and/or practice during the class period; b) did that policy rise to the level of violating the United States Constitution; and, if so, c) is Defendant responsible for the constitutional violations? Given the presence of these common questions central to this litigation, Rule 23(a)(2)'s requirement for the existence of common questions of fact or law has been met here. See Florence, supra; Wilson, supra. 5
3. Typicality Under Rule 23(a)(3) Rule 23(a)(3) requires that the representative plaintiff's claims be "typical" of those of other Class Members. The commonality and typicality requirements of Rule 23(a) "tend to merge" Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). The requirement of this subdivision of the rule, along with the adequacy of
5 See also, e.g., Dodge, 226 F.R.D. at 180-181 (commonality exists where all members of the class contend that a blanket strip search policy exists, where all members contend that the policy is illegal, and where all members of the class claim they were searched pursuant to the policy which was unifonnly applied to all detainees); Marriott, 227 F.R.D. at 172 (finding commonality where the representative parties and the members of the proposed class had the same legal claims based upon the same official procedure); see also Sutton v. Hopkins County, 2007 WL 119892, *4 (W.D. Ky. Jan. 11,2007) ("Plaintiffs have alleged that the Defendants had a policy, custom, or practice of strip-searching persons on admission to and/or just prior to release from the Hopkins County Jail without regard to whether there existed the requisite individual, reasonable suspicion required by law. Given this allegation, the existence and constitutionality of the county's policy, custom or practice are common questions.").
22

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 32 of 41
representation requirement set forth in subsection (a)(4), is designed to assure that the interests of unnamed class members will be protected adequately by the named class representative. Id; Prudential II, 148 F.3d at 311; Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977); Asbestos School Litigation, 104 F.R.D. at 429-30. The typicality requirement "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir.1997). "Factual differences will not render a claim atypical if the claim arises from the same event or practice of course of conduct that gives rise to the claims of the Class Members, and it is based on the same legal theory." Hayworth v. Blondery Robinson & Co., 980 F.2d 912,923 (3d Cir. 1992). Typicality is demonstrated where the plaintiff can "show that two issues of law or fact he or she shares in common with the class occupy the same degree of centrality to his or her claims as to those of unnamed Class Members." Weiss v. York Hosp., 745 F.2d 786,80910 (3d Cir. 1984); see also Blihovde, 219 F.R.D. at 617 (applying this principle to a strip search class action). The typicality requirement has been liberally construed by the federal courts. Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992).
Here, the Representative Plaintiffs' claims are typical of the claims of the Class. These claims arise from the same course of events and the Representative Plaintiffs would have to make the same or effectively the same arguments to prosecute his claim as would be made by members of the proposed Class. Typicality is satisfied because the "[D]efendants acted pursuant to a policy that called for indiscriminate searches. If this allegation is true, then the named [P]laintiffs would be similarly situated to the other
23

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 33 of 41
members of the class." Blihovde, 219 F.R.D. at 617. Thus, typicality is easily satisfied by this proposed class action. See Bowers, 2006 WL 2818501, *2-3 ("A plaintiffs claim is typical if it arises from the same event or course of conduct that gives rise to the claims of other Class Members and is based on the same legal theory."); see also Weisfeld v Sun Chern. Corp., 210 F.R.D. 136, 140 (D.N.J. 2002) ("[I]n instances wherein it is alleged that the defendants engaged in a common scheme relative to all members of the class there is a strong assumption that the claims of the representative parties will be typical of the absent Class Members.") (citation omitted); Marriott, 227 F.R.D. at 172 (fmding typicality even where the claims of the representative parties involved a more detailed search than other Class Members, because they were conducted pursuant to the same policy); Sutton, 2007 WL 117892, at *4 ("Because each named Plaintiff alleges an unconstitutional strip search after arrest for a minor violation or before release from jail, the claims of the representatives are typical of the class as a whole.").
4. Adequacy Under Rule 23(a)(4) The final requirement of Rule 23(a) is set forth in subsection (a)(4), which requires that ''the representative parties will fairly and adequately protect the interests of the class." The Third Circuit consistently has ruled that:
Adequate representation depends on two factors: (a) the plaintiffs attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the plaintiff must not have interests antagonistic to those of the class. Weiss, 745 F.2d at 811, quoting Wetzel v. Liberty Mutual Insurance Co., 508 F.2d at 247; see also Prudential II, 148 F.3d at 312. These two components are designed to ensure that absentee Class Members' interests are fully pursued. The existence of the elements
24

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 34 of 41
of adequate representation are presumed and "the burden is on the defendant to demonstrate that the representation will be inadequate." Asbestos School Litigation, 104 F.R.D. at 430, citing Lewis v. Curtis, 671 F.2d 779 (3d Cir. 1982); Cook v. Rockwell Int'I Corp., 151 F.R.D. 378 (D. Colo. 1993) (quoting 2 Newburg, §7.24 at pp. 7-81,2-82).
Plaintiffs and Class Counsel have fairly and adequately represented the Class here, especially judging by the excellent settlement achieved in this litigation. Indeed, in the present case, the presumption of adequate representation cannot be rebutted. With respect to the issue of adequacy of counsel, the Court may take judicial notice of the fact that Plaintiffs' attorneys have substantial experience in litigating complex civil rights actions. See LaDuca Cert. ~19. The Class is represented by competent and experienced counsel who have invested considerable time and resources into the prosecution of this action. Additionally, counsel in this action has served as Class Counsel in numerous strip search class actions, and have been held to be adequate counsel repeatedly, Inasmuch as Class Counsel are adequate under Rule 23(a)(4), the effectively parallel requirements of Rule 23(g) are also met for the same reasons as those set forth immediately above.
Counsel have taken significant discovery that has enabled them to negotiate an advantageous settlement on behalf of the Class. Class Counsel negotiated the proposed settlement from a position of knowledge and strength, and as advocates for the entirety of the class. They have satisfied this requirement for certification.
As to the second issue, there is nothing to suggest that the Representative Plaintiffs have significant interests antagonistic to those of the absent Class Members in the vigorous pursuit of the class claims against Defendant. See Dietrich v. Bauer, 192 F.R.D. 119, 126 (S.D.N.Y. 2000) ("gauging the adequacy of representation requires an
25

Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 35 of 41
assessment whether the class representatives have interests antagonistic to those of the class they seek to represent"). The Representative Plaintiffs have come forward to represent the Class under great personal pressure - as being subject to a situation as humiliating as a strip search and then being forced to relive it would be difficult for anyone. Plaintiffs' "interests in this case coincide with those of the potential Class Members in that [Plaintiffs seek] a declaration that the practices, policies, and conditions complained of in the [Class Action] Complaint are unconstitutional and seek injunctive relief prohibiting the continuation of those" policies. Bowers, 2006 WL 2818501, *6-8. Indeed, Plaintiffs have obtained an advantageous settlement that treats all Class Members in the same fashion, and provides real value to all. .
Having demonstrated that each of the mandatory requirements of Rule 23(a) are satisfied here, Plaintiffs now turn to consideration of the factors which, independently, justify class treatment of this action under subdivision 23(b)(3) of the rule.
B. The Requirements of Rule 23(b)(3) Are Met in the Settlement Context Plaintiffs' proposed class also meet the requirements of Rule 23(b)(3). Under 23(b)(3) a class action may be maintained if:
the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
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Fed. R. Civ. P. 23(b)(3). "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation." Amchem, 521 U.S. at 623. Although Rule 23(b)(3) requires that common issues oflaw and fact predominate, it does not require that there be an absence of any individual issues. In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 344 (E.D. Pa. 1976). The Court must find that "the group for which certification is sought seeks to remedy a common legal grievance. " Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339 (N.D. Ill. 1978); Dietrich, 192 F.R.D. 119 (in determining whether common issues of fact predominate, "a court's inquiry is directed primarily toward whether the issue of liability is common to members of the class"). Rule 23(b)(3) does not require that all questions of law or fact be common. See In re Telectronics Pacing Systems, Inc., 172 F.R.D. 271, 287-88 (S.D. Ohio 1997). In this regard, courts generally focus on the liability issues and if these issues are common to the class, common questions are held to predominate over individual questions. See id
Here, the proposed Class Members' claims involve one central legal question: was the strip searching of every pretrial detainee admitted to the Dauphin County Jail without regard to the crime charged or the circumstances of arrest, constitutional? Plaintiffs' claims also share common factual issues - did this practice exist during the class period and is the Defendant legally responsible for such practices? Proof of these issues, with a goal to answering the two core legal questions, would be the undoubted focus of any trial. Clearly, legal and factual issues in this litigation predominate over any of the Plaintiff's individual issues.
Given the nature of this action and the fact that a substantial proportion of the
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Class membership is comprised of economically disenfranchised individuals, a class action is also the superior method by which to adjudicate claims of individual Class Members. Poor and marginalized Class Members are unlikely to be able to litigate their cases individually. See Mack v. Suffolk County, 191 F.RD. 16,25 (D. Mass. 2000); In re Nassau County Strip Search Cases, 461 F.3d 219, 230 (2d Cir. 2006); Tardiff, 365 F.3d at 7 ("class status here is not only the superior means, but probably the only feasible one ... to establish liability and perhaps damages"). The class action device is designed for the situation where an individual seeks to vindicate "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Amchem, 521 U.S. at 617. "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." Mack, 191 F.RD. at 25 (internal citations omitted); Yang v. Odum, 392 F.3d 97, 106 (3d Cir. 2004); Marriott, 227 F.R.D. at 173; Sutton, 2007 WL 119892, *9 ("litigating the existence of a uniform policy for the class as a whole would both reduce the range of issues and promote judicial economy.")(internal quotation marks and citations omitted).
Considerations of judicial economy underscore the superiority of the class action mechanism in this case. The prosecution of this case as a class action is superior to thousands of individual cases being filed in this Court, each of which would be repetitious and possibly yield inconsistent adjudications. See Califano v. Yamaski, 42 U.S. 682, 700-701 (1979); Dodge, 226 F.RD. at 183 ("Where a single issue (such as the
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Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 38 of 41
existence of a uniform policy) is guaranteed to come up time and time again, issues of judicial economy strongly militate in favor of resolving that issue via a techniques that will bind as many persons as possible."); Sutton, 2007 WL 119892, *9 (holding that "a class action provides the most feasible and efficient method of determining liability" where suit alleges existence if a uniform unconstitutional strip search policy). The trial in this action would last for weeks, with scores ofjail employees being examined about the practices of the Dauphin County Correctional Facility in an effort to establish municipal liability. Even having a small proportion of Class Members have duplicative trials on this issue would be an enormous waste of judicial resources, and would not be the superior and appropriate way to resolve this controversy.
Settlement on a class basis also is superior to individual litigation and adjudication because settlement provides Class Members with prompt compensation for their damages, whether those damages exist now or manifest themselves sometime in the future. By contrast, compensation resulting from litigation is highly uncertain and may not be received before lengthy trial and appellate proceedings are complete. In addition, the Settlement obviously removes the overwhelming and redundant costs of individual trials.
Accordingly, the Settlement Agreement renders a class action superior to other potential avenues of recovery for Plaintiffs and the Class. Therefore, this case presents the paradigmatic example of a dispute which can be resolved to effectuate the fundamental goals of Rule 23: (1) to promote judicial economy through the efficient resolution of multiple claims in a single action; and (2) to provide persons with smaller claims, who would otherwise be economically precluded from doing so, the opportunity
29

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to assert their rights. Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1754. Moreover, unless Class Members obtain relief through the settlement, most of them will not obtain any relief at all. It would be inconceivable for every one of the thousands of potential plaintiffs to conduct expensive and extensive discovery to prove liability under the legal theories proffered in the complaint for a potential individual recovery of damages. See In re Kirschner Medical Corp. Sec. Litig., 139 F.R.D. 74, 83 (D. Md. 1991) (class suits superior when individual claims are too small to warrant individual suit). At the same time, the settlement fully preserves the due process rights of each individual plaintiff seeking compensatory damages.
In sum, the requirements of Rule 23(b)(3) are satisfied and certification of a the proposed class is appropriate. VI. Conclusion
For the foregoing reasons, the Joint Motion for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fess, and for Approval of Incentive Award to the Class Representative should be granted in its entirety.

Dated: September 30, 2009

Respectfully Submitted By: sf Charles J. LaDuca

Charles J. LaDuca, Esquire (pro hac vice) Alexandra C. Warren, Esquire (Attny.I.D. No. 93651) Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960
Elmer Robert Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC

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Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 40 of 41
1040 Riverfront Center P. O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Alan M. Ross, Esquire Pennsylvania Supreme Court ID No. 81301 Law Offices of Alan M. Ross, LLC 2001 North Front Street, Suite 220 Harrisburg, PAl 71 02 Telephone: 717.238.6311 Daniel C. Levin, Esquire Pennsylvania Supreme Court ID No. 80013 Levin, Fishbein, Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500 Gary E. Mason, Esquire The Mason Law Firm, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290
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Case 1:07-cv-01688-TIV Document 74-3 Filed 09/30/2009 Page 41 of 41

EXHIBIT A

Camden, New Jersey

Hicks v. County o/Camden, 05-cv-1857 (D.N.J.)

Class Members:

21,763

Claims:

6,291 main settlement class claims filed (also 1,494

wrongful detention subclass claims filed)

Claims Rate:

29%

Settlement Amount:

$7.5 million

Boston, Massachusetts

Mackv. Suffolk County, 98-cv-12511 (D. Mass.)

Class Members:

5,400

Claims:

1,495

Claims Rate:

28%

Settlement Amount:

$10 million

Indianapolis, Indiana

Doan v. Watson, 99-4-C (S.D. Ind.)

Class Members:

2,591

Claims:

691

Claims Rate:

27%

Settlement amount:

n/a

Rensselaer, New York

Kahler/Bruce v. Rensselaer County Jai/, 03-cv-1324 (N.D.N.Y)

Class Members:

2,700

Claims:

733

Claims Rate:

27%

Settlement Amount:

$2.7 million

Washington, DC

Bynum v. Gov. o/the Dist. o/Columbia, 02-cv-956 (D.D.C)

Class Members:

20,877

Claims:

3,674

Claims Rate:

16.5%

Settlement Amount:

$12 million

Strafford County, New Hampshire

Moser v. Anderson, 93-cv-634 (D. N.H.)

Class Members:

2,200

Claims:

356

Claims Rate:

16%

Settlement Amount:

n/a

 
 Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, Both Individually :

and on Behalf of a Class of Others

:

Similarly Situated, ASHLEY MCCORMICK :

Both Individually and on Behalf of a

:

Class of Others Similarly Situated,

:

HERBERT CARTER, Both Individually :

and on Behalf of a Class of Others

:

Similarly Situated, DEVON SHEPARD, :

Both Individually and on Behalf of a Class :

of Other Similarly Situated

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN

:

Defendant :

1:CV-07-1688 (JUDGE VANASKIE)

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT

NOW, THIS 18th DAY OF DECEMBER, 2009, having conducted hearings on October

9, 2009, and December 18, 2009, in order to determine whether the proposed Settlement

Agreement between the parties is fair, reasonable and adequate, and to address Class

Counsel’s application for an award of attorneys’ fees and costs; and the Settlement Class

Members being represented by Class Counsel and Defendants being represented by its

attorneys; and having read and considered the Settlement Agreement, the Notice Plan, the

Memoranda of Law submitted by Class Counsel, the Affidavits in Support of Incentive Awards

to the Class Representatives and in Support of Application for Attorneys’ Fees and

Reimbursement of Expenses submitted by Class Counsel, the Notice of Revised Deadlines,

Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 2 of 7
and the Affidavits of Joseph C. Fraga of the Garden City Group, Inc.; and having heard arguments from Class Counsel and the Defendant; and having considered the submissions by Class Members, THIS COURT, consistent with the opinion announced from the Bench at the conclusion of the December 18, 2009 hearing, now makes the following:
FINDINGS OF FACT 1. This action was commenced on September 16, 2007, as a class action. 2. After intensive litigation, including extensive discovery and motion practice, and as a result of intensive arm’s length negotiations between Class Counsel and Defendant, including a mediation with Judith Meyers, Esq., the parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class members, in return for a release and dismissal of the claims at issue in this case against the Defendant (“Settlement Agreement”). The resulting Settlement Agreement was preliminarily approved by the Court on April 8, 2009. 3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for Class Members to file objections to the Settlement, and an opportunity to opt out of the Settlement. As of the deadline for the filing of objections and requests for exclusion set forth in the Notice Plan, one objection was filed and no requests for exclusion were filed.
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Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 3 of 7
4. By Order dated October 29, 2009, the Court approved a Notice of Revised Deadlines, which provided Class Members who may not have received direct mail written Notice of the Settlement with such notice. The Notice of Revised Deadlines provided all Class Members with an extension of time to submit a Claim Form, and provided Class Members who may not have received mailed written Notice of the Settlement with additional time to exclude themselves from the Settlement or object to the Settlement. As of the deadline for the filing of objections and requests for exclusion set forth in the Notice of Revised Deadlines, no requests for exclusion were received and no additional objections were made.
5. Given the size of this Settlement, the Notice Plan, and Revised Notice of Settlement described above, this Court finds that the submission of only one objection to the settlement, which concerned a reversionary clause that will not be triggered, is indicative of the fairness, reasonableness and adequacy of the Settlement with Defendant.
6. The settling parties have filed with the Court two affidavits from Joseph C. Fraga declaring that the mailing of the Court-approved notice, consistent with the Notice Plan and the Notice of Revised Deadlines, has been completed.
7. The Court finds that the published notice, mailed notice, and Internet posting constitute the best practicable notice of the Fairness Hearing, proposed Settlement, Class Counsels’ application for fees and expenses, and other matters set forth in the Class Notice and Short Form Notice; and that such notice constituted valid, due, and sufficient notice to all
3

Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 4 of 7
members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of Pennsylvania, and any other applicable law.
8. Any persons who wished to be excluded from this action were provided an opportunity to “opt out” pursuant to the Notice, but no persons excluded themselves.
9. Settlement Class Members are bound by the Settlement, Settlement Agreement, releases contained within the Settlement Agreement, and this Final Order and Judgment. Settlement Class Members do not have a further opportunity to opt out of this Action.
10. Any Class Member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs’ Class Counsels’ application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
11. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
a. The liability issues in this case have been vigorously contested.
4

Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 5 of 7
b. This Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the parties to this litigation. This Settlement provides Class Members with a reasonable monetary benefit.
c. This Settlement is clearly a byproduct of hard-fought litigation between the parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendant.
12. Class Counsel submitted to the Court and served on the Defendant their application for reasonable attorneys’ fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsels’ request and hereby grants an award of fees in the amount of twenty-five percent (25%) of the gross settlement amount, and an award of all expenses incurred.
13. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW:
14. This Court has jurisdiction over the parties and the subject matter of this proceeding.
5

Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 6 of 7
15. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Settlement Class is certified for purposes of final settlement.
All person who have been placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor crimes and were strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005, and extends to March 12, 2008. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 16. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a class action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for class certification under Rule 23 are present. The Class Members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class Members predominate over individual issues and should be determined in one proceeding with respect to all Class Members. The Class Representatives’ claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action. 17. The Settlement Class Representatives, Jennifer Reynolds and Ashley McCormick, are entitled to and are each hereby awarded a payment of $15,000, and Class Representative Devon Shepard is awarded a payment of $10,000. These awards are in recognition of the efforts the Class Representatives undertook in connection with this lawsuit. All Class Members
6

Case 1:07-cv-01688-TIV Document 87 Filed 12/18/2009 Page 7 of 7
who have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after deduction of administrative expenses, attorneys’ fees and expenses, and incentive awards.
18. Class Counsel are qualified, experienced, and have aggressively litigated this case, thereby demonstrating their adequacy as counsel for the Settlement Class. Alan M. Ross, Esquire of the Law Offices of Alan M. Ross, Esquire; Elmer Robert Keach, III, Esquire, of the Law Offices of Elmer Robert Keach, III, PC; Charles J. LaDuca, Esquire, and Alexandra C. Warren, Esquire, of Cuneo Gilbert & LaDuca, LLP; Gary Mason, Esquire, of The Mason Law Firm; and Daniel C. Levin, Esquire, of Levin Fishbein Sedran & Berman, are hereby appointed as Counsel for the Settlement Class.
19. The Court grants final approval of the Settlement Agreement as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
20. The Court finds that an amount of attorneys’ fees in the amount of twenty-five percent (25%) of the gross settlement is reasonable under the circumstances of this case.
s/ Thomas I. Vanaskie Thomas I. Vanaskie United States District Judge
7

 
 Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually :

and on behalf of a class of others similarly :

situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

:

Defendant.

:

____________________________________:

Civil Action Number 07-CV-1688
AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendant County of Dauphin

of rights secured to the Plaint iffs and proposed Class by the United States Constitution and the

laws of the United S tates of Am erica. Dauphin County has a policy or practice of strip-

searching all individuals who enter the Dauphin County Prison and are p laced into jail clothing,

regardless of the crim e upon which they are char ged, and has had such a policy or practice

during the duration of the class period proposed in this com plaint. Upon information and belief,

this policy is, in part, derived from the written procedures of Dauphin County, and was

promulgated by senior Dauphin County Prison officials.

It is well established in this judicial circuit that individuals charged with misdemeanors or

summary offenses cannot be strip-searched absent particularized reasonable suspicion that they

possess weapons or contraband. In short, the policy of Dauphin County to force those charged

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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 2 of 21
with minor crimes to undergo the indignities of a strip search upon entry into the Dauphin County Prison is not only clearly illegal, but is insensitive and unnecessary.
Plaintiffs bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip search ed after being charged with petty crimes, to vindicate the clear and unnecessary violatio n of their civil righ ts and those of t he class m embers they propose to represent. Plaintiffs were all charged with summary offenses, and all were subjected to a strip search, in violation of their rights against unreasonable searches under the Fourth Amendment of the United States Cons titution. Plaintiffs seek monetary damages for them selves and each member of the proposed class, a declaratio n that the D auphin County Prison policies are unconstitutional, and an injunction precluding Dauphin County from continuing to violate the rights of th ose placed into th eir custody. W ith this as a background, Plaintiffs complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action und er the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain com pensatory damages and injunctive relief for the deprivation, under color of state law, of the ri ghts of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. 2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events givin g rise to Plaintiff’s claims and those of proposed class members occurred in this judicial district.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 3 of 21
PARTIES 3. Plaintiff Jennifer Reynolds is a citizen of the United States and resides in the State of Maryland. On or about September 2, 2007, Ms. Reynolds was arrested and placed in th e Dauphin County Prison on charges of assem bly without a proper perm it, a violation of the Harrisburg City Code. 4. Plaintiff Ashley McCorm ick is a citizen of the United Stat es and resides in Dauphin County, Pennsylvania. On or about September 13, 2007, Ms. McCormick was arrested and placed in the Dauphin County Prison for failing to pay parkin g tickets in the City of Harrisburg. 5. Plaintiff Herbert Carter is a citizen o f the United States and resides in the State of Maryland. On or about Septem ber 2, 2007, Mr. Cart er was arrested and placed in the Dauphin County Prison on charges of assembly without a proper permit, a violation of the Harrisburg City Code. 6. Plaintiff Devon Sheppard is a citizen of the United States and resides in the State of Maryland. On or about September 2, 2007, Ms. Sheppard was arrested and placed in the Dauphin County Prison on charges of assem bly without a proper perm it, a violation of the Harrisburg City Code. 7. Defendant County of Dauphin (the “Count y”) is a county gove rnment organized and existing under the laws of the Comm onwealth of Pennsylvania. At all times relevant hereto, the County, acting through its P rison Board of Inspectors, was responsible for the policies, practices, supervision, im plementation and con duct of all m atters pertaining to the Dauphin County Prison and was responsible for the appointment, training, supervision and conduct of all
3

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 4 of 21
Dauphin County Prison. In addition, at all rele vant times, the County was responsible for enforcing the rules of the Da uphin County Prison, and for ensuri ng that personnel em ployed in the Dauphin County Prison obey the Constitution a nd laws of the United States and of t he Commonwealth of Pennsylvania.
CLASS ACTION ALLEGATIONS 8. Plaintiff brings this action pursuant to Rules 23(b)(2) and 23 (b)(3) of the Federal Rules of Civil Procedure on behalf of himself and a class of sim ilarly situated individuals who were charged with m isdemeanors or minor crimes and were strip search ed upon their entry into the Dauphin County Prison. 9. The class that Plaintiff seeks to represent is defined as follows:
All persons who have been or w ill be placed into th e custody of the Dauphin County Prison afte r being charged with m isdemeanors, summary offenses, violations of probation or parole, civil comm itments, or m inor crimes and were or will be strip searched upon their en try into the Dauphin County Prison pursuant to the policy, cu stom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspic ion. Specifically excluded from the class are Defendants and any and all of their respective af filiates, legal representatives, heirs, successors, employees or assignees. 10. This action has been brought and m ay properly be m aintained as a class action under Federal law an d satisfies the num erosity, commonality, typicality and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). 11. The members of the class are so n umerous as to rende r joinder impracticable. Upon information and belief, there are hundreds of people arrested for m isdemeanors and violations who are placed into the custody of the Dauphin County Prison every month -- all of
4

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 5 of 21
whom are members of the proposed class. Upon in formation and belief, the size of the proposed class totals at least 7,000 indivi duals, some of whom have had their civil rights violated on multiple occasions.
12. Upon information and belief, joinder of a ll of these individuals is im practicable because of the large n umber of class m embers and the fact that class m embers are lik ely dispersed over a large geographical area, with some members presently resid ing outside o f Dauphin County and this Judicial District. F urthermore, upon information and belief, m any members of the class are low-inco me persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
13. Common questions of law and f act exist as to all m embers of the Clas s, in that they all had their right to be free from unreasonable searches violated by Defendant’s conducting strip searches absent particular ized suspicion. All m embers of the class were charged with misdemeanors or violations when placed into th e custody of the Dauphin County Pr ison, and all were illegally strip searched in violation of the established law in this judicial circuit.
14. Plaintiffs’ claims are typical of the claim s of the members of the Class. P laintiffs and all m embers of the class sustained dam ages arising out of Defendant’s course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the class members.
15. The representative Plaintiffs have the requisite personal interest in the outcome of this action a nd will f airly and ad equately protect the inte rests of the Cla ss. Pla intiffs have n o interests that are adverse to the interests of the members of the Class.
16. Plaintiffs have retain ed counsel wh o have substantial experience and success in the prosecution of class action and civil rights litigation.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 6 of 21
17. In short, Plaintiffs’ counsel has the re sources, expertise and experience to successfully prosecute this action against Dauphin County. Counsel for the Plaintiff knows of no conflicts among members of the class or between counsel and members of the class.
18. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs seek class certification under Fed. R. Civ. P. 23(b)(2 ), in that all class m embers were subject to the same policy requiring the illegal strip searches of individuals charged with m isdemeanor or minor crimes and placed into the custody of the Dauphin County Prison. In short, the County of Dauphin has acted on grounds generally applicable to all class members.
19. In addition to certification unde r Rule 23(b)(2), and in th e alternative, Plaintiffs seek certification under Rule 23(b)(3).
20. Common questions of law and fact exist as to all m embers of th e Class, and predominate over any questions that affect on ly individual members of the Clas s. Thes e common questions of law and fact include, without limitation, the co mmon and predom inate question of whether the Defendant’s written and/or de facto policy of strip searching all individuals charged with m isdemeanors or minor crimes and committed to the Dau phin County Prison is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
21. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual m embers of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furtherm ore, the expe nse and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to
6

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 7 of 21
them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would al so magnify the delay and expense to all parties and the court system . By contrast, the conduct of this action as a class action in this District presents far fewer m anagement difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
22. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals.
23. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 24. The Fourth Am endment of the United St ates Constitution prohibits go vernment agencies, such as the County of Dauphin and the Corrections Officers it supervises, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officers in que stion have rea sonable suspicion to b elieve that the arrestee is concealing a weapon or contraband. 25. Upon information and belief, the County of Dauphin has instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Dauphin County Prison and are placed into ja il clothing, regardless of the n ature of their charged crime and without the presence of reasona ble suspicion to believe that the individual was concealing a weapon or contraband.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 8 of 21
26. The Dauphin County Prison is the local ja il used by Dauphin County to m ostly house pre-trial detainees, as well as individuals sentenced to lo cal time. While Dauphin County refers to its local jail as a “prison,” and this co mplaint utilizes the form al name for the facility, “Dauphin County Prison,” provided by the County, Da uphin County’s local jail is most certainly not comparable to a state prison, which hous es only sentenced detainees facing lengthy sentences.
27. Upon information and belief, the County of Dauphin has instituted a written and/or de facto policy, custom or practice of conducti ng visual body cavity searches (visual inspection of the vaginal and r ectal cavities) on all individua ls who enter the custody of the Dauphin County Prison, regardless of the individual ch aracteristics or the nature of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectiv ely referred to as “strip searches.”
28. The County of Dauphin knows that it m ay not institute, enforce or perm it enforcement of a policy or practice of conduc ting strip searches without particularized, reasonable suspicion.
29. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches of all m isdemeanor and violation arrestees ha s been prom ulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
30. Reasonable suspicion to conduct a stri p search m ay only e manate from the particular circumstances antecedent to the searc h, such as the nature of the crim e charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
8

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 9 of 21
31. Upon information and belief, the C ounty of Dauphin has prom ulgated, implemented, enforced, and/or faile d to rectify a written and/or de facto policy, practice o r custom of strip searching all individuals placed into the cu stody of the Dauphin County Prison and placed into jail clothing without any requirem ent of r easonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a p articular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
32. The preliminary discovery taken in this matter confirms that Dauphin County has a written and/or de facto policy or practice of conducting blanket strip searches. Dauphin County has produced the “strip search for ms” for all four proposed class representatives, copies of which are attached hereto as Exh ibit A. Three of these forms reflect that Ashley McCormick, Jennifer Reynolds and Herbert Carter were strip searched because they were “held with other detainees prior to commitm ent,” “not searched before being br ought into prison,” and “held at HPD with others,” resp ectively. T he Plaintiffs maintain that these proffered justifications for strip searches do not satisfy th e requirements for individualiz ed reasonable suspicion. The Plaintiffs maintain that the prof fered justification to str ip search Devon Shepard is illu sory as well, given her criminal charges and background.
33. In short, the Plaintiffs maintain that the use of the “strip search forms” is nothing more than a cover for the fact th at all d etainees, regardless of crim inal charge or reasonable suspicion, are strip searched upon their admission to the Dauphin County Prison.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 10 of 21
34. Pursuant to this written and/or de facto policy, each m ember of the Class, including the named Plaintiffs, was the victim of a routine strip search u pon their entry into the Dauphin County Prison. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, am ong other innocuous offenses, Driving W hile Intoxicated, Harassment, Trespassing and a range of summary offenses.
35. As a direct and proxim ate result of th e unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches -- each m ember of the class, including the nam ed Plaintiffs -- has suf fered or will suf fer psychological pa in, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs 36. Plaintiffs Jennifer Reynolds, Herbert Carter and Devon Sheppard were arrested on September 2, 2007 for a violation of the Harrisburg City Code, fo r allegedly assembling without a permit. Reynolds, Carter and Sheppard were arre sted as part of the infa mous actions of the Harrisburg Police on McCorm ick Island during the recent Labor Day weekend, and were transported to the Dauphin County Prison when they could not pay fines that were assessed upon them by a District Justice to en sure their appearance. Reynolds, Carter and Sheppard were all strip searched shortly after th eir admission to the Dauphin C ounty Prison contemporaneous with their receipt of a jail uniform . All were released from the Dauphin County Prison shortly after their admission, when their fam ily members paid the required fines nece ssary to secure their release.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 11 of 21
37. Plaintiff Ashley McCormick was arrest ed on Septem ber 13, 2007 for failing to pay parking tickets issued by th e City of Harrisburg, the bulk of which relate to h er failure to move her car for street cleaning. McCorm ick was arrested by Magisterial District Court constables in her hom e when she was sleeping, and she was later transported to the Dauphin County Prison in her pajamas. Shortly after being taken to the prison, Ms. McCormick was strip searched immediately prior to receiving the ja il uniform. Ms. McCor mick was later released from the Dauphin County Prison after her family paid her fines.
38. Plaintiff Ashley McC ormick is a resident of Dauphin County, and was incarcerated for not paying parking tickets. Without suggesting that Ms. McC ormick is a habitual criminal, or, more precisely, a habitual recipient of parking tickets, it appears that individuals who fail to pay thei r parking tickets are routinely detained at the Dauphin County Prison. Consequently, there is a po ssibility beyond mere speculation that Ms. McCormick will be rearrested in the f uture, making it likely that she will a gain be subjected to the same illegal search procedure.
39. The arrests of all four p laintiffs were void of any reas onable suspicion to believe that they harbored any weapons or contraband.
40. As a direct and proximate result of the unlawful strip searches conducted pursuant to Dauphin County’s policy, practice and custom, Pl aintiffs have suffered and continue to suffe r psychological pain, humiliation, suffering and mental anguish.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 12 of 21
CAUSE OF ACTION Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid Constitutional Deprivations, Under Color of State Law --
Demand for Declaratory Judgment and Injunctive Relief
41. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 40.
42. The Fourth Amendment of the United Stat es Constitution protects citizens from unreasonable searches by law enforcem ent officers, and prohibits officers from conducting strip searches of indiv iduals arrested for m isdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.
43. The actions of Defendant Dauphin County detailed above violated Plaintiffs’ rights under the United States C onstitution. S imply put, it was not objectively reasonable for Dauphin County Corrections Officers to strip search Plaintiffs and Class members based on their arrests for misdemeanor/summary charges.
44. These strip searches were conducted pursuan t to the policy, custom or practice of the County of Dauphin. As such, the County of Dauphi n is directly liable for the damages of the Plaintiffs and members of the Class.
45. This conduct on the part of the Defendant represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
46. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the members of the Class have been irreparably injured.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 13 of 21
47. The policy, custom and practice of the County of Dauphin is clearly unconstitutional, in that Corrections Officers of the Dauphin County Prison are directing/conducting the strip sear ches of all individuals placed into the Dauphin County Prison without any particularized suspicion that the in dividuals in question have either contraband or weapons.
48. Upon information and belief, this policy is currently in place at the Dauphin County Prison, with new and/or prospective m embers of the Class being s ubjected to the harm s that have already been inflicted upon the Plaintiffs.
49. The continuing pattern of strip searching individuals charged with m inor crimes will cause irreparable harm to th e new and/or prospective m embers of the Cla ss, an adequa te remedy for which does not exist at law.
50. Plaintiffs demand that the County of Dauphin immediately desist from strip searching individuals placed in to the custod y of the Dauphin County Prison absent any particularized suspicion that th e individuals in question have e ither contraband or weapons, and seeks both a preliminary and permanent injunction from this Court ordering as much.
51. Plaintiffs and members of the Class also request that this Court issue a declaratory judgment, and that it declare the strip sear ch policy of the County of Dauphin to be unconstitutional.
DEMAND FOR TRIAL BY JURY 52. The Plaintiff hereby demands a trial by jury.
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Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 14 of 21
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Jennifer Reynolds, Ashley McCormick, Herbert Carter and Devon Sheppard, on behalf of themselves and on be half of a class of others sim ilarly situated, requests that this Honorable Court grant them the following relief: 1. An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Defendant County of Dauphin awarding Compensatory Damages to Plaintiff and each member of the proposed class in an amount to be determined by a Jury and/or the Court on both an individual and a class wide basis. 3. A declaratory judgm ent declaring that the County of Dauphin ’s policy, practice and custom of strip and visual cavity searching all detainees entering the Dauphin County Prison, regardless of the crime charged or suspicion of contraband, to be unconstitutional and improper. 4. A preliminary and permanent injunction enjoining Defendant County of Dauphin from continuing to strip and visual cavity sear ch individuals charged with m isdemeanors or minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband. 5. A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23;
14

Nov 20 07 05:23p

Alan M. Ross, Esquire

7172380860

p. 1

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 15 of 21

Dated: November 20, 2007

Respectfully Submitted By:

/?~~

AJanMROSS:ES(jt

.

Pennsylvania Supreme Court ID No. 81301

Member of the Bar, U.S.D.C., M.D.Pa.

LAW OFFICE OF ALAN M. ROSS, LLC

200 I North Front Street, Suite 220

Harrisburg, PA 17102

Telephone: 717.238.6311

Telecopier: 717.238.0860

Electronic Mail: amresquire@aol.com

Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT
KEACH, III, PC 1040 Riverfront Center P. O.Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirrn.com

Charles J. LaDuca, Esquire CUNEO GILBERT & LaDUCA, LLP 507 C Street, NE Washington, DC 20002 Telephone: 202.789.3960 Telecopier: 202.789.1813 Electronic Mail: charlesl@cuneolaw.com

Daniel C. Levin, Esquire Pennsylvania Supreme Court ID No. 80013 LEVIN, FISHBEIN, SEDRAN
& BERMAN
510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215.592.1500 Telecopier: 215.592.4663 Electronic Mail: dlevin@lfsblaw.com

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 16 of 21

Gary THE 1225 Suite Washington, Telephone: Telecopier:
gm
ATTORNE

E. Mason, Esquire MASON LAW FIRM, PLLC 19th Street, NW 600
DC 20036 202.429.2290 202.429.2294
Electronic Mail: ason@masonlawdc.com
YS FOR PLAINTIFFS AND THE PROPOSED CLASS

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 17 of 21
EXHIBIT A

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 18 of 21

PRETRIAL DETAINEE STRIP SEARCH FORM NO.1 (PD-l)

~~ to oJ\) S. ~ C-~ -c:: /'-lA-:>\
Name of PfJtrial Detainee '[printed]
(!;{) J~b
Name of Corrections Officer [printed]

! . DCP#: D 7 J I~ <--
DATE CZ _3/0 7 j

Identify specific factors, which establish reasonable suspicion that the Pretrial Detainee may possess a weapon, evidence of a crime, controlled substances, or other contraband. Check all that apply:

The appearance and demeanor of the detainee;

The nature of the criminal charges pending against the detainee;

The detainee's prior arrest record (if known);
_ _ _ _ _ Discoveries from prior artests and/or prior searches of the detainee (if known);
_____ Detainee's conduct during the period of confmement;
_ _ _ _ _ Detainee's known relationship with another inmate and/or detainee;
Detainee's known history of suicide attempts or threats;
___7:=---_Any other reasonable suspicion based upon specific circumstances that leads the
corrections officer to suspect that the detainee is concealing weapons, evidence of the specific crime, controlled substances or other contraband.
Please Describe: inmd,..Y--g tU~ t1 tr! sea ret Rd., be4r~
&;':J 6fQ ~il f- )nfo flY;il:rh.", -

(b!-i~
CORRECTIONS OFFICER s r G =
REVIEWED BY:

APPROVED BY:

Shift Commander
DCP - 140

Deputy Warden

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 19 of 21

PRETRIAL DETAINEE STRIP SEARCH FORM NO.1 (PD-l)

Arh C f \ \J~ r1-<Y\~. G

DCP#:.----::7-<-11,--....,;() ;_(_ _

~me of Pretrial Detainee [printed]

j l ~ ..u-)

DATE 7'-3-07

Nite ci'"{torrections Officer [printed]

Identify specific factors, which establish reasonable suspicion that the Pretrial Detainee may possess a weapon, evidence of a crime, controlled substances, or other contraband. Check all that apply:

The appearance and demeanor of the detainee;

The nature of the criminal charges pending against the detainee;

The detainee's prior arrest record (if known);

_ _ _ _ _ Discoveries from prior arrests and/or prior searches of the detainee (ifknown);

_ _ _ _ _ Detainee's conduct during the period of confmement;

_____ Detainee's known relationship with another inmate and/or detainee;

~ee's known history of suicide attempts or threats;

Any other reasonable suspicion based upon specific circumstances that leads the

corrections officer to suspect that the detainee is concealing weapons, evidence of

the specific crime, controlled substances or other contraband.

~l 4~ ill~ Please DeSCribe:Jjei,,,pt:

d

w.l-Q o~ I eo.s.l.h~ rO"~oA.b",J

Shift Commander OCP - 140

APPROVED BY: Deputy Warden

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 20 of 21

PRETRIAL DETAINEE STRIP SEARCH FORM NO.1 (PD-l)

rg 3 I~ e. eR-D IDeifcJv-..'>
Name ofPretrial elainee [printed]

Lh DCP#: D?iftiD

Ntzq ik!::,,~~:{j;jnted]

9 Z DAlE I "?, V

Identify specific factors, which establish reasonable suspicion that the Pretrial Detainee may possess a weapon, evidence of a crime, controlled substances, or other contraband. Check all that apply:
The appearance and demeanor of the detainee;

The nature of the criminal charges pending against the detainee;

The detainee's prior arrest record (if known); _ _ _ _ _ Discoveries from prior arrests and/or prior searches of the detainee (ifknown); _ _ _ _ _ Detainee's conduct during the period of confmement; _ _ _ _ _ Detainee's known relationship with another inmate and/or detainee; _ _ _ _ _ Detainee's known history of suicide attempts or threats;

1 . / Any other reasonable suspicion based upon specific circumstances that leads the

corrections officer to suspect that the detainee is concealing weapons, evidence of

the specific crime, controlled substances or other contraband.

e..ci2 do Please Describe: de.--/a.; hr2e.... odJM.ar

b~ fu"dltv:;

C-&11 fv~C<.A1.ae ~/

---1

LCObRRE/CT~I~T~URE
REVIEWED BY:

APPROVED BY:

Shift Commander
DCP -140

Deputy Warden

Case 1:07-cv-01688-TIV Document 24 Filed 11/20/2007 Page 21 of 21

PRETRIAL DETAINEE STRIP SEARCH FORM NO.1 (PD-l)

s=J}e (!6Yfl.1 ((}j 174:00 It t/

10 DCP#: 1) - zdJ

Nam ofPr~~ De~ainee [print~d]_ ,
~,~f,~G~",~a. ~~~~~~________~DAlli,~~~!~3~-J~·_t _

Identify specific factors, which establish reasonable suspicion that the Pretrial Detainee may possess a weapon, evidence of a crime, controlled substances, or other contraband. Check all that apply:
The appearance and demeanor of the detainee;
The nature of the criminal charges pending against the detainee;
The detainee's prior arrest record (if known);
_ _ _ _ _ Discoveries from prior arrests and/or prior searches of the detainee (if known);
_____ Detainee's conduct during the period of confmement;
_____ Detainee's known relationship with another inmate and/or detainee;
_____ Detainee's known history of suicide attempts or threats;
/ ' _ _ _ _ _ Any other reasonable suspicion based upon specific circumstances that leads the
corrections officer to suspect that the detainee is concealing weapons, evidence of the specific crime, co :trolledJ~bfances or other c aband.
l1A ' i,ffJ! Please Describe: ,{)c:&J

eO
REVIEWED BY:
Shift Commander ocp -140

APPROVED BY: Deputy Warden

 
 Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, ASHLEY

:

McCORMICK, HERBERT CARTER, :

and DEVON SHEPARD, both individually:

and on behalf of a class of others similarly :

situated,

:

Plaintiffs

:

:

v.

:

:

THE COUNTY OF DAUPHIN,

:

Defendant

:

NO. 1:07-CV-01688-CCC (Complaint filed 9/16/07)
Judge Christopher C. Conner CIVIL ACTION – LAW JURY TRIAL DEMANDED

DEFENDANT COUNTY OF DAUPHIN’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 2 of 27
TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................i
TABLE OF AUTHORITIES .................................................................................... ii
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY........................1
II. STATEMENT OF ISSUES PRESENTED...........................................................3
III. STANDARD OF LAW........................................................................................4
IV. ARGUMENT.......................................................................................................5
A. Plaintiffs’ purported class is overbroad and contains putative members who cannot obtain relief as a matter of law ................................5
B. Named Plaintiffs and purpo rted class members lack standing to seek declaratory and injunctive relief because Pl aintiffs’ complaint does not allege that there is a likelihood t hat they will be subjected to the complained of conduct in the future ..................14
C. Plainti ffs’ third purported cause of action, which seeks an injunction, must be dismissed because such cause of action is a form of relief and it cannot be maintained as an independent cause of action as a matter of law........................................17
D. Plainti ffs cannot recover p unitive damages from Defendant as a matter of law based upon the allegations cont ained in their complaint..........................................................................................18
E. Plaint iffs cannot recover on their all egations that Defendant has a blanket strip search po licy when, in fact, Defendant has a written policy which sets forth distinct factors for each correctional officer to consider in his/her determination as to whether reasonable suspicion exists pri or to any strip search being performed........................................................................................18
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TABLE OF AUTHORITIES

Cases

Page

United States Supreme Court Bell v. Wolfish, 442 U.S. 520; 60 L. Ed. 2d 447; 99 S. Ct. 1861 (1979) .......................................................................................5, 6, 7, 8

City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675 103 S. Ct. 1660 (1983) ..............................................................................15, 16, 17

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981) ........................................................................................18

Conley v. Gibson, 355 U.S. 42, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) ......................13

Hartford Fire Insurance Company v. California, 509 U.S. 602, 125 L. Ed. 2d 488; 113 S. Ct. 2801 (1993)...........................................................4

O’Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974) ............................................................................................16

Third Circuit Court of Appeals Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270 (3d Cir. 2001) .........................4
Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987) .......................................................12
Conte-Bros. Auto. Inc. v. Quaker State-Slick 50, Inc. 165 F.3d 221 (3d. Cir. 1998)...............................................................................14
Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) .......................................................14
In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410 (3d Cir. 1997) ................18
Labov v. Lalley, 809 F.2d 270 (3d Cir. 1987) ...........................................................4

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Pension Benefit Guar. Corp. v. White Consol. Industries, 998 F.2d 1192 (3d Cir. 1993)................................................................................4
Potence v. Hazleton Area Sch. Dist., 357 F.3d 366 (3d Cir. 2004).........................18 Ramadan v. Chase Manhattan Corp., 229 F.3d 194 (3d Cir. 2000) ..........................4 Roe v. Operation Rescue, 919 F.2d 857 (3d Cir. 1990) ..........................................15
United States District Court, Third Circuit Clark v. McDonald's Corp., 213 F.R.D. 198 (D.N.J. 2003) ....................................15 Newkirk v. Sheers, 834 F.Supp. 772 (E.D.Pa. 1993) ................................................7 Strzakowlski v. GMC, No. 04-4740, 2005 U.S. Dist. LEXIS 18111,
*26 (D.N.J. Aug. 16, 2005).................................................................................14
Other Circuit and District Courts Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994) .............................................8 Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005) ..................................................7 Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) .....................................................6 Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) ......................................................7 Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984) ..........................................................6 John Does 1-100 v. Boyd, 613 F. Supp. 1514 (D.Minn. 1985)...........................15, 16 Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) ........................................................7 Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985) ........................................................6 Lau v. Arrow Financial Services, --- F.R.D. ---,
2007 WL 2840390, *4 (N.D.Ill. Sept. 28, 2007) ................................................12 Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1982) ............................6
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Miller v. Mackey Int'l, Inc., 452 F.2d 424 (5th Cir. 1971) ......................................12 Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007) ........................................7, 8, 9, 10 Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (E.D.Va. 1980)......................... 12-13 Smith v. Montgomery County, Maryland, 643 F.Supp. 435 (D.Md. 1986)..............9 Smith v. Montgomery County, 573 F. Supp. 604 (D.Md. 1983) ............................15 Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985)...................................6 Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004)..................................................8 U.S. v. Willoughby, 860 F.2d 15 (2d Cir. 1988) .......................................................8 Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993) ................................................8
Acts, Rules and Statutes 35 P.S. §780-113(a)(16)...........................................................................................10 35 P.S. §780-113(a)(30)...........................................................................................10 35 P.S. §780-113(a)(31)...........................................................................................10 35 P.S. §780-113(a)(32)...........................................................................................10 18 Pa. C.S. §908.......................................................................................................10 Rule 12(b)(6)..............................................................................................................4 Rule 23(b)(2)(3) .....................................................................................................5, 12
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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiffs, Jennifer Reynolds, Ashley Mc Cormick, Herbert Carter, and Devon
Shepard, both i ndividually and on beha lf of a class of others sim ilarly situated, initiated this class action lawsuit with the filing of a civil com plaint on September 18, 2007. (Com plaint, Doc. 1). Plaintiffs’ c omplaint alleges that Plaintiffs Reynolds, Carter and Shepard were arrested on September 2, 2007 for a violation of the Harrisburg City Code. (Id. at ¶ 34). Plaintiffs’ co mplaint further alleges that Reynolds, Carter and Shepard were tr ansported to Dauphi n County Prison (hereinafter “Prison”) because they coul d not post bond and that they were strip searched upon their admittance to the Prison. (Id.).
Plaintiffs’ complaint avers that Plain tiff Ashley McCormick was arrested on September 13, 2007 for fail ing to pa y parking tickets issued by the City of Harrisburg. (Id. at ¶ 35). Foll owing McCormick’s arrest, Plaintiffs also aver that McCormick was transported to Dauphi n County Prison where she was strip searched upon being admitted. (Id.).
Plaintiffs’ complaint claims, inter alia, that Defendant has a written and/or de facto policy of strip-searching all individuals who enter the Prison regardless of the crime upon which they are charged and without the presence of reasonable suspicion to believe that the individuals are c oncealing a weapon or contraband. (Id. at ¶ 25).
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Plaintiffs allege in Count I of their co mplaint that the stri p searches of named Plaintiffs and unna med members of t he purported class violated the Fourth Amendment of the United States Constit ution. (Id. at ¶¶ 38-43). Plaintiffs request in Count II of their com plaint that this Honorable Court declare that the policy, custom, and practice of Defendant is unconstitutional because the correctional officers of the Prison are directing/conducting strip searches of all individuals placed into the Prison without any particularized suspicion that the indi viduals have either contraband or weapons. (Id. at ¶¶ 44-46). Plaintiffs al so set forth a separate cause of action in Count III of their com plaint seeking prelimin ary and perman ent injunctive relief, enjoining Defendant from strip search ing individuals placed into custody of the Pri son absent any particulari zed suspicion t hat the indivi duals have either contraband or weapons. (Id. at ¶¶ 47-51). As a result of the alleged constitutional violation, Plaintiffs seek: (1 ) an order certifying this action as a class action; (2) a judgm ent against Defendant awarding compensatory damages to each named Plaintiff and each m ember of the purported class; (3) a decl aratory judgment declaring that the Defendant’s policy, pr actice and custom of strip searching all detainees is unconstitutional; (4) a prelim inary and permanent injunction seeking to enjoin Defendant from continuing to st rip search individuals without reasonable suspicion that such indivi duals are co ncealing weapons and/ or contraband; (5) attorney’s fees; (6) and punitive damages. (Id. at p. 14; Id. at ¶ 1).
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II. STATEMENT OF ISSUES PRESENTED
A. Whether on its face and as a ma tter of law , Plaintiffs’ complaint fails to state a claim upon w hich relief may be granted as to individuals comprising a substantial portion of the purported class because, as a matter of la w, reasonable suspicion existe d to strip search those individuals.
[suggested answer in the affirmative]
B. Whether the named Plaintiffs and purported class members lack standing to seek declarator y and injunctive relief because Plaintiffs’ complaint does not allege that there i s a li kelihood that they will be subjected to the complained of conduct in the future.
[suggested answer in the affirmative]
C. Whether Plaintiffs’ third purported cause of action, which requests an injunction, must be dismissed because such cause of action seeks only a form of relief and it cannot be maintained as an independent cause of action as a matter of law.
[suggested answer in the affirmative]
D. Whether Plaintiffs’ claim for puni tive damages must be dismissed because Plaintiffs cannot recover punitive damages from Defendant as a matter of law based upon the allegations contained in the complaint.
[suggested answer in the affirmative]
E. Whether Plaintiffs cannot recover on their allegations that Defendant has a blank et strip search policy w hen, in fact, Defendant has a w ritten policy which sets forth distinct factors for each correctional officer to consider in his/her determination as to whether the requisite re asonable suspicion exists prior to any strip search being performed.
[suggested answer in the affirmative]
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III. STANDARD OF LAW
The standard to be applied in consideration of a motion to dismiss pursuant to Rule 12(b)(6) is well established in our jurisprudence. The co urt is to accept as true all factual allegations in the c omplaint and draw all reasonable inferences in t he light most favorable to the Plaintiff. Bo ard of Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc. Inc., 237 F.3d 270, 272 (3d Cir. 2001). The question before the court on a m otion to dismiss is whether the plaintiff can prove any set of facts in support of his claim that entitles the plaintiff to relief. Hartford Fire Insurance Company v. Cal ifornia, 509 U.S. 602; 125 L. Ed. 2d 488; 113 S. Ct. 2801 (1993), Ramadan v. Chase Manhattan Corp. , 229 F.3d 194-195-96 (3d Cir. 2000). If it is clear from the pleading that a defendant cannot be held liable, then dismissal of all claim s against that defendant is appropriate. Labov v. Lalley , 809 F.2d 270 (3d Cir. 1987). In adjudicating a Rule 12(b)(6) Moti on, the district court is not lim ited to evaluating the complaint; rather, it can also conside r documents attached to the com plaint, matters of public record, and undispute dly authentic documents. Pension Benefit Gu ar. Corp. v. White Consol. Industries , 998 F.2d 1192, 1196 (3d Cir. 1993).
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Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 10 of 27
IV. ARGUMENT
A. Plaintiffs’ purported class is overbroad and contains putative members who cannot obtain relief as a matter of law.
Plaintiffs seek cl ass certification pursuant to Rules (23)(b)(2) and 23(b)(3),
Federal Rules of Civil Procedur e. (Do c. 1 at ¶¶ 18, 19). The cl ass that Plaintiffs
seek to represent is the following:
All persons who have been or will be placed into the custody of the Dauphin Count y Prison after being charged with misdemeanors, summary offense s, violations of probation or parole, civil comm itments, or m inor crimes and were or will be strip sear ched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from , or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducti ng strip searches absent reasonable suspicion. Specifically excluded from the cl ass are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
(Id. at ¶ 9).
The United States Supreme Court has held that strip searches of arrestees ar e
not per se unconsti tutional. Bell v. Wolfish , 441 U.S. 520, 559; 60 L. Ed. 2d 447,
481; 99 S. Ct. 1861, 1884 (1979). The Court i n Wolfish, however, recognized that
arrestees have a legitimate privacy interest in not being strip searched, and explained
that the governm ent must have a reas onable justification for conducting such
searches:
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Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 11 of 27

The test of reasonableness under the Fourth Amendment is

not capable of precise definition or mechanical application.

In each case it r equires a balancing of the need for a

particular search against the invasion of personal rights

that the search entail s. Courts must consider the scope of

the particular intrusion, the manner in whic

h it is

conducted, the justification for initiating it, and the place in

which it is conducted.

Id. (internal citations om itted). The Wolfish decision acknowledged that stri p and

body cavity searches of pretrial detain ees, in order to avoid t he smuggling of

contraband into a detention facility, was a legitimate government interest, and held

that prison administrators should be afford ed discretion in how best to prevent such

smuggling. Id. at 559 and n. 40. Assum ing, without holding, that pretrial detainees

retain some Fourth Amendment rights upon their commitment to a detention facility,

the Wolfish court held that body cavity search es of pretrial detainees following

contact visits with any person from outside the institution did not violate the Fourth

Amendment.

Interpreting Wolfish, most federal circuit courts have held that a "blanket"

strip search policy, calling for t he search of all arrestees without any i ndividualized

justification, violates the Fourth Am endment of the United States Constitution. See

Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock , 767

F.2d 153 (5th Cir. 1 985); Giles v. Ackerman , 746 F.2d 614 (9th Cir. 1984); Hill v.

Bogans, 735 F.2d 391 (10t h Cir. 1984); Mary Beth G. v. City of Chicago , 723 F.2d

1263 (7th Cir. 1982). The preva iling interpretation of Wolfish is that an arrestee to

6

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 12 of 27
be detained in the genera l jail population has a constituti onal right under the Fourth Amendment to be free from strip searches conducted without reasonable suspicion that the detainee is concealing weapons, drug s, or other cont raband, and, therefore, blanket strip searches of all arrestees, wi thout individualized reasonable suspicion, are unconstitutional. See , e.g., Powell v. Barrett , 496 F.3d 1288, 1310 (11th Ci r. 2007). In order t o justify a st rip search of a nonviolent arrestee, the governm ent must have reasonable individualized susp icion that the detainee is carrying or concealing contraband. Newkirk v. Sheers , 834 F. Supp. 772, 788 (E.D.Pa. 1993). Individualized suspicion sufficient to warrant such a strip sear ch may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and any prior arrest record. Id.
This interpretation of Wolfish , however, has not been adopted by the United States Supreme Court or the United States Court of Appeals for the Third Circuit, and has been questioned by other courts. See, e.g., Hicks v. Moore, 422 F.3d 1246, n. 5 (11th Cir. 2005); Evans v. Stephens , 407 F.3d 1272, 1278-79 (11t h Cir. 2005) (en banc) ("Most of us are uncertain that jailers are required to have a reasonable suspicion of weapons or contraband before strip search ing – for securit y and safety purposes – arrestees bound for the general jail population . . . Never has the Supreme Court imposed such a requirement."); Johnson v. Phelan , 69 F.3d 144, 152-153 (7t h Cir. 1995) (Posner, J., concurring and di ssenting) ("[The Fourth] Amendment has
7

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 13 of 27
been held inapplicable to searches and seiz ures within prisons, and if applicable to jails housing pretrial detain ees as distinct from convicted defendants – an unsettled question – is onl y tenuously so . . ."); Brothers v. Klevenhagen , 28 F.3d 452, 457 and n. 6 (5th Cir. 1994) (“The Court [in Wolfish ] refused to concede that the Fourth Amendment applies to [pretr ial detainees] and conclude d that no protection woul d be afforded even if it did apply."); Valencia v. Wiggins , 981 F.2d 1440, 1444-45 (5th Cir. 1993); U.S. v. Willoughby, 860 F.2d 15, 21 (2d Cir. 1988).
Even under the expansive preva iling interpretation of Wolfish , which Dauphin County does not concede is correct, Plaintiffs fail to state a claim with regard to a substantial portion of their propos ed class. Those courts that have hel d that individualized reasonable suspicion is required before the government may strip search an arrestee have c onceded that such reasonable suspicion may be established by the circu mstances of an arrest or the nature of the charges brought against the arrestee. See Powell v. Barrett , 496 F.3d 1288, 1310 (11th Cir. 2007); Tardiff v. Knox County, 365 F.3d 1, 5 n.6 (1st Cir. 2004) (noting that categories such as current charge or crim inal history are a perm issible way to establish reasonable suspicion).
In Powell, the court held that the circu mstances of a person's arrest may support reasonable suspicion to justi fy a strip search upon booking into jail, including, for example, the possession of a weapon by a detainee at the time of
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arrest. Id. The Powell court also held that the nature of an arrest charge itself ,

independent of the facts surrounding the arrest, can give rise to reasonable

suspicion; therefore, it is objectively reasonable to conduct a strip search of a person

arrested for an offense involving weapons, drugs, or violence before placing the

arrestee into the genera l jail population. Id. at 1311. This is true of all crimes

involving weapons, drugs, or violence, regardless of the level of the offense. Id.

In the end, balancing this se rious intrusion against the

government's compelling intere st in jail security is

unsusceptible of precise evidentiary resoluti

on,

undiscernible in the language of the Constit ution or the

intent of its fram ers. But th e Court has the duty t o draw

the line somewher e. The C ourt holds that reasonable

suspicion exists to st rip search all felony a rrestees, and all

temporary detainees arrested for m isdemeanor offenses

that involve weapons or contraband. Reasonable suspicion

also exists to strip search all temporary detainees with prior

records of convictions or unr esolved arrests for felony

offenses, or for misdemeanors involvi ng weapons or

contraband. Other federal courts appear to have uniformly

drawn the line in the same place.

Smith v. Montgom ery County, Maryland , 643 F.Supp. 435, 439 (D.Md. 1986)

(examining cases).

In light of this precedent, it is clear that Plaintiffs fail to state a cause of action

as to a substantial portion of their proposed class. Plaintiffs’ proposed class includes

persons as to whom reasonable suspicion ex isted, arising by t he very nature of the

crime the person was charged or their past criminal history, i.e. those detainees

whose charges upon intake im plicated either weapons or drugs, or who had a past

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Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 15 of 27
conviction for a fel ony, drug or weapons charge. Those persons are included in Plaintiffs’ broad class definition unde r “misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes.”
The following is a small sample of misdemeanors covered under Plai ntiffs’ proposed class definition wh ere there exists reasonable suspicion to search: (1) manufacture, sale or delivery of a contro lled substance, 35 P. S. § 780-113(a)(30); (2) knowingly or int entionally possessing a controlled or counterfeit substance, 35 P.S. § 780-113(a)(16); (3) possession of a small am ount of marijuana only for personal use, 35 P.S. § 780-113(a)(31); (4) the use of, or possession wi th intent to use, drug paraphernalia 35 P.S. § 780-113(a)(32); (5) to make, repair, sell or otherwise deal in, use, or possess any o ffensive weapons, with the definition of offensive weapons including metal knuckl es, dagger, knife, razor or cut ting instrument, 18 Pa.C.S. § 908.
As to persons who were charged with such crimes, r easonable suspicion justifying a strip search existed. Im portantly, "it is immaterial whether the specific arresting officer or jailer actually and subjectively had reasonable suspicion, or whether anyone at the tim e actually conducted a reasonable suspicion analysis. Powell, 496 F.3d at 1310. Inste ad, the question for the Court i s "whether, given the circumstances, reasonable suspicion objectively existed to justify the search." Id. Therefore, as a matt er of law, the strip searches o f persons charged with crimes
10

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 16 of 27
involving weapons, violence, or drugs, and those persons with past convictions or
unresolved arrests for felonie s or crimes involvi ng violence, weapons, or drugs,
were objectively justified by reasonable suspicion and did not violate the Fourth
Amendment. Such persons fail to state a claim for a constitutional violation, cannot
be included in any class definition, and cannot obtain relief based upon the claims as
alleged.
At most, Plaintiffs’ class could be comprised of the following:
All persons who have been or will be placed into the custody of the Dauphin Count y Prison after being charged with misdemeanors, summary offense s, violations of probation or parole, civil comm itments, or m inor crimes and were or will be strip sear ched upon their entry into the Dauphin County Prison, pursuant to the policy, custom and practice of the County of Dauphi n, where such intake crimes did or do not im plicate either weapons, viol ence or drugs, and where such persons did or will not, at the time of admission to D auphin County Prison, have a past conviction or unresolved arre st for a felony or charge involving drug, weapons, or violence . The class period commences on September 16, 2005 and extends to the date on which Dauphin County is enjoined from , or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducti ng strip searches absent reasonable suspicion. Specifically excluded from the cl ass are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. (emphasis added)
It is antic ipated that Plaintiffs w ill argue that Defendant’s contention that
Plaintiffs’ class is overbroad i s premature and can onl y be addressed at the class
certification stage of this m atter. This, however, is not a question of whether the
11

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 17 of 27
proposed class meets the procedural requi rements to justify class certification;
rather, this is simply a question of whet her some members of the proposed class are
incapable of stating a claim upon which relief may be granted.
The determination whether there is a proper class does not depend on the existence of a cause of action. A suit may be a proper class action, conf orming to Rule 23, and still be dismissed for failure to state a cause of action.
Miller v. Mackey Int'l, Inc., 452 F.2d 424, 427 (5th Cir. 1971).
Defendant's contention that a substa ntial portion of t he proposed class
members fail to state a clai m cannot be reserved for th e class certification stage,
because the Court is forbidden from inquiring into the m erits of Plaintiffs’ claims at
that stage. The class certifi cation stage is reserved for an inquiry i nto whether the
proposed class meets the procedural requirements of Rule 23.
Rule 23 delineates the scope of inquiry to be exercised by a district judge in passing on a class action m otion. Nothing in that Rule indicates the nece ssity or the propriety of an inquiry into the m erits. Inde ed, there is absol utely no support in the history of Ru le 23 or legal preced ent for turning a m otion under Rule 23 into a Rule 12 m otion to dismiss or a Rule 56 m otion for summary judgment by allowing the district judge to evaluate the possible merit of the plaintiff's clai ms at this stage of the proceedings. Failure to state a cause of action is entirely distinc t from failure to state a class action.
Id. (emphasis added). See also Lau v. Arrow Financial Services, --- F.R.D. ---, 2007
WL 2840390, *4 (N.D.Ill. Sept. 28, 2007) (mer its of each potential class m embers'
claims could not be addressed at class cer tification stage); Pruitt v. Allied Chem ical
12

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 18 of 27
Corp., 85 F.R.D. 100, 104 (E.D.Va. 1980) (court could not consi der motion to dismiss, which offered potential to reduce the class to more manageable numbers, at the class certification stage, because propr iety of class certification under Rule 23 was separate from consideration of merits under Rule 12).
Defendant recognizes that claim s, including class claim s, should not be dismissed on the ple adings "unless it app ears beyond doubt that the plaintiff can prove no set of facts in support of hi s claim which would en title him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 84, 78 S. Ct. 99, 102 (1957). Here, however, it can be determ ined from the face of the Pla intiffs’ complaint that the law cannot provide rec overy based upon the claim s alleged, which is the appropriate consideration when determining a Motion to Dism iss. Defendant believes that a faci al review of Plaintiffs ’ complaint by the Court will reveal that Plaintiffs’ complaint cannot provide recove ry for certain putative mem bers of it s class based upon any possible set of facts even if proven t o be true. Therefore, for the reasons discussed supra, Defendant respectfully requests that this Court conclude that Plaintiffs’ com plaint fails to state a claim as to a substa ntial portion of the proposed class, and dismiss it as such.
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B. Named Plaintiffs and purported class members lack standing to seek declaratory and injunctive relief because Plaintiffs’ complaint does not allege that there is a like lihood that they will be subjected to the complained of conduct in the future.
Plaintiffs request in Count II of thei r complaint that this Honorable Court declare that the policy, custo m, and practice of Defendant is unconsti tutional in that the correctional officers of the Prison are directing/conducting strip searches of all individuals placed i nto the Prison without any particularized suspicion that the individuals have either contraband or weapons. (Doc. 1 at ¶¶ 44-46). Plaintiffs al so set forth a separate cause of action i n Count III of t heir complaint seeking preliminary and permanent injunctive relief, enjoining De fendant from strip searching individuals placed into custody of the Prison absent any particularized suspicion that the individuals have either contraband or weapons.
A review of standing is a thre shold inquiry; and t he proper disposi tion of a case challenging standing is a m otion to dismiss. Hassine v. Jeffes , 846 F.2d 169, 176 (3d Cir. 1988). Each mem ber of a put ative class m ust individually possess a right to make a claim in a matter. Strzakowlski v. GMC, No. 04-4740, 2005 U .S. Dist. LEXIS 18111, *26 (D.N.J. Aug. 16, 2005 ). Thus, a class cannot be so broad as to include memb ers who have no standing to bring suit on their on accord. Id.; See Conte-Bros. Auto. Inc. v. Quaker State-Slick 50, Inc. 165 F.3d 221 (3d. Cir. 1998) (affirming district court ’s decision to grant defendant’s m otion to dism iss because putative class m embers lacked sta nding based upon the claims alleged in
14

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complaint). Furtherm ore, a court m ay strike class action allegations pri or to

discovery when presented with a Rule 12(b)(6) motion. See Clark v. McDonald' s

Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003).

In addition to meeting the basic require ments for standing, a plaintiff m ust

also meet the preconditions for asserting an injunctive claim in a federal forum. See

City of Los Angeles v. Lyons , 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660

(1983). To establish standing in an acti on for de claratory or inj unctive relief, a

plaintiff must show that he or she is likely to suffer future

injury from the

defendant's illegal conduct. Roe v. Operation Rescue , 919 F.2d 857, 864 (3d Cir.

1990). Past illegal conduct is insufficient to warrant injunctive or declaratory relief

unless it is acco mpanied by "continuing, pr esent adverse effects." City of Los

Angeles, 461 U.S. at 102, 75 L. Ed. 2d at 684, 10 3 S. Ct. at 1665. Declaratory relief

is unavailable to a plaintiff who has al leged nothing more than exposure to past

unconstitutional state action. Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987).

Several courts in cases challenging the constitutionality of strip search

policies have held that the plaintiffs l acked standing to pursue injunctive relief

because they cannot show any likelihood th at they will be arrested agai n. See John

Does 1-100 v. Boyd , 613 F. Supp. 1514 (D.Minn. 1985); Smith v. Montgomery

County, 573 F. Supp. 604 (D. Md. 1983). The plaintiffs in John Does 1-100, similar

to the Plaintiffs in this action, challenge d the constitutionality of strip search es at a

15

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 21 of 27
county detention facility. The district court, relying primarily on the Supreme Court's decision in Lyons , held that the plaintiff la cked standing to seek injunctive relief against the de tention center's strip search policy. John Does 1-100 , 613 F. Supp. at 1529. T he court noted that the “named plaintiffs cannot establish a ‘credible threat’ that they will be arrested again." Id . The court thus concluded that the plaintiffs lacked standing with respect to injunctive relief.
In O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), a challenge to discrim inatory conduct in t he administration of a county crim inal justice system, the Supreme Court looked to this same factor in holding that the plaintiffs lacked standing to seek an injunction:
[H]ere the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the crim inal law and will ag ain be subjected to bond proceedings, trial, or sentencing before petitioners. . . . [w]e assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners. O’Shea, 414 U.S. at 496-97, 38 L. Ed. 2d at 683, 94 S. Ct. at 676. While plaintiffs in the instant cas e may be able t o allege t hat if they are arrested and detained again they will be strip searched, they cannot show any likelihood that they will in fact be arrested again. Plaintiffs have not alleged that they will not conduct their future activitie s within the parameters of the law. Plaintiffs essentially allege that they have been exposed to past unconstit utional
16

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 22 of 27
action, i.e. that they were subject to an unconstitutional strip search at the Prison. Therefore, Plaintiffs, named and putative class members, do not have standing to seek injunctive and declaratory relief base d upon t he allegations set forth in thei r Complaint. Thus, Counts II and III of Plaintiffs’ complaint should be dismissed.
C. Plaintiffs’ third purported ca use of action, which seeks an injunction, must be dismissed because such cause of action is a form of relief and it cannot be maintained as an independent cause of action as a matter of law.
Plaintiffs’ third cause of action is a demand for a prelim inary and permanent injunction. Plaintiffs aver that the “con tinuing pattern of strip searching individuals charged with m inor crimes will cau se irreparable harm to the new an d/or prospective members of the Class, an adequate remedy for which does not exist at law.” (Doc. 1 at ¶ 50). Although Plaint iffs do not have standing to se ek injunctive relief as discussed supra , the third cause of action m ay also be dism issed on the grounds that an injunction is a form of relief and not an independent cause of action. An injunction is a form of equitable relief. City of Los Angeles, 461 U.S. at 133, 75 L. Ed. at 704, 103 S. Ct at 1682. Thus, Pl aintiffs’ third cause of action m ust be dismissed on these grounds as well.
17

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 23 of 27
D. Plaintiffs cannot recover punitive damages from Defendant as a matter of law based upon the a llegations contained in their complaint.
Plaintiffs seek punitive damages in paragraph 1 of their Complaint. In City of Newport v. Fact Con certs, Inc., 453 U.S. 247, 69 L. Ed. 2d 616 , 101 S. Ct. 2748 (1981), the Supreme Court held that, in general, a m unicipality is immune from liability for punitive damages in a section 1983 case. Punitive damages are only allowed against m unicipalities when expressly provided by statute. Potence v. Hazleton Area Sch. Dist. , 357 F.3d 366, 372 (3d Cir. 2004). There is no statutory provision which expressly provides for punitive damages based upon the allegations contained in Plaintiffs’ com plaint. Thus, Dauphin County is imm une from liability for punitive damages and the same must be stricken from Plaintiffs’ complaint.
E. Plaintiffs cannot recover on their allegations that Defendant has a blanket strip search policy w hen, in fact, Defendant has a w ritten policy which sets forth distinct fa ctors for each correctional officer to consider in his/her determin ation as to w hether reasonable suspicion exists prior to any strip search being performed.
Defendant has attached a copy of th e Dauphin County Prison’s stri p search policy to its Motion Dismiss at Exhibit “A.” The general rule is that a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadi ngs. In re Burlington Coat Factory Sec. Liti g, 114 F. 3d 1410, 1426 (3d Cir. 1997). However, exceptions to the general rule incl ude documents integral to or explicit ly relied upon in the com plaint, which may be considered without converting t he
18

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 24 of 27
motion to dismiss into one for summary judgment. Id. Here, the strip search policy attached to Defendant’s Mot ion and attested to by Dauphin County Prison Warden Dominick DeRose, may be considered by the Court because it is undoubte dly integral and relied upon by Plaintiffs t hroughout the complaint and serves as the basis for the entire case.
Plaintiffs repeatedly allege that Defendant does not have a written strip search policy or, in the altern ative, Defendant has a de facto strip search policy because it strip searches every person entering the prison despite the existence of a written strip search policy stating otherwise. Defendant has had a written strip search policy at all times relevant to the alleg ations contained in Plaintiffs’ com plaint. Defendant’s strip search policy requires each intake correctional officer to determine whether the requisite particularized reasona ble suspicion existed, i.e. whether the intake crime im plicated either weapons, violence or drugs, and/or whether the detainee had a past conviction or unresolved arrest for a felony or charge involvi ng drug, weapons, or violence. Therefore, Plaintiffs cannot maintain any cause of action set forth in t heir complaint on th e grounds that Defendant did not have a written strip search policy and any potentia l recovery cannot be predicated upon the same. Thus, Plaintiffs’ averments that Defendant does not have a written strip search policy and has a blanket strip search policy of searching every individual
19

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 25 of 27

admitted to the Prison m ust be stricken a nd Plaintiffs’ recovery m ust be limited to

their de facto policy claim.

WHEREFORE, for the reasons set fort h hereinabove, Defendant, County of

Dauphin, hereby requests that this Honorable grant its Motion to Dism iss and enter

the accompanying order.

Respectfully

submitted,

Lavery,

Faherty, Young & Patterson, P.C.

Date: 10/25/07 Frank Atty

By: /s/ Frank J. Lavery, Jr. J. Lavery, Jr., Esquire
No. PA42370 flavery@laverylaw.com

Date: 10/25/07 Robert Atty

By: /s/ Robert G. Hanna, Jr. G. Hanna, Jr., Esquire
No. PA17890 rhanna@laverylaw.com

Date: 10/25/07 Devon Atty djacob@laverylaw.com

By: /s/ Devon M. Jacob M. Jacob, Esquire
No. PA89182

225 P.O. Harrisburg, (717) (717) Co-counsel

Market Street, Suite 304 Box 1245
PA 17108-1245 233-6633 (telephone) 233-7003 (facsimile)
for Defendant

20

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 26 of 27

McNEES, WALLACE & NURICK LLC

Date: 10/25/07 Atty

Date: 10/25/07 Atty

Date: 10/25/07 Carol Atty csteinour@mwn.com

Date: 10/25/07

By:

Atty dchwastyk@mwn.com

By: /s/ David E. Lehman David E. Lehman, Esquire
No. PA15243 dlehman@mwn.com
By: /s/ James P. DeAngelo James P. DeAngelo, Esquire No. PA62377 jdeangelo@mwn.com
By: /s/ Carol Steinour Young Steinour Young, Esquire No. PA55969
/s/ Devin Chwastyk Devin J. Chwastyk
No. PA91852
100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Co-counsel for Defendant

21

Case 1:07-cv-01688-TIV Document 16 Filed 10/25/2007 Page 27 of 27

CERTIFICATE OF SERVICE
I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 25th day of October, 2007, I served a
true and correct copy of the foregoing Brief in Support of its Motion to Dism iss
via U.S. Middle District Court’s Electr onic Case Filing Syst em, addressed as
follows:
Alan M. Ross, Esquire Email: amresquire@aol.com
Charles J. LaDuca, Esquire Email: charlesl@cuneolaw.com
Daniel C. Levin, Esquire Email: dlevin@lfsblaw.com
Elmer Robert Keach, III, Esquire Email: bobkeach@keachlawfirm.com
Gary E. Mason, Esquire Email: gmason@masonlawdc.com

/s/ Megan Frank Robert Devon

Megan L. Renno L. Renno, Legal Secretary to J. Lavery, Jr., Esquire, G. Hanna, Jr., Esquire, and M. Jacob, Esquire

This document has also been electronically filed and is available for vi ewing and downloading from the ECF system.
22

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER REYNOLDS, et al.,
Plaintiffs, - vsTHE COUNTY OF DAUPHIN
Defendant.

Civil Action No.1 :07-CV-01688 Judge Thomas I. Vanaskie

SETTLEMENT AGREEMENT
Plaintiffs, by and through their counsel, and Defendant, by and through its counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for settlement of the claims herein described against Defendant.
WHEREAS, Plaintiffs filed the above-captioned class action lawsuit against Defendant, the County of Dauphin, alleging that Defendant had violated Plaintiffs constitutional rights under color of state law by illegally strip searching them and others similarly situated upon entry into the Dauphin County Prison.
WHEREAS, Plaintiffs further allege that, in violation of law and pursuant to the policy of the County of Dauphin, all persons such as Plaintiffs and the members of the class they purport to represent, who entered the Dauphin County Prison charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes, were strip searched absent any particularized suspicion that they possess weapons or other contraband.

WHEREAS, Defendant has denied and continue to deny Plaintiffs' claims and Defendant denies any wrongdoing or liability of any kind to Plaintiffs or to any members of the Class (as defined hereinafter).
WHEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation of the facts and law relating to the matters in this litigation and that such examination included documentary and deposition discovery in the course of the litigation.
WHEREAS, the Parties have concluded that settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to alleged conduct involved in this litigation.
WHEREAS, Plaintiffs and Class Counsel recognize the costs and risks of prosecuting this litigation, and believe that it is in their interest, and the interest of all Class Members, to resolve this litigation, and any and all claims against Defendant, as well as all employees of the County of Dauphin who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
WHEREAS, substantial, adversarial settlement negotiations have taken place between the Parties, including mediation conducted by Judith Meyers, Esquire, of Mediation and Arbitration, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein.
2

WHEREAS, the parties believe that this Settlement Agreement offers significant
benefits to Class Members and is fair, reasonable, adequate and in the best interest of
Class Members.
WHEREAS, this Settlement Agreement is made and entered into by and among
Defendant and Plaintiffs Jennifer Reynolds, Ashley McCormick and Devon Shepard,
individually and on behalf of a class of similarly situated persons. The Class Members
are defined as:
All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor crimes who were strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to March 12, 2008. Specifically excluded from the class is Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the
undersigned as follows:
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the
meaning set forth below. Where appropriate, terms used in the singular shall be
deemed to include the plural and vice versa.
A. Claim Form. A Claim Form shall mean a form in substantially the same
form as that attached hereto as Exhibit A.
B. Claims Period. A Claims Period shall mean the time period during which
claims may be made by Settlement Class Members, extending from the Notice Date
3

until the date 120 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
C. Class Counsel. A Class Counsel shall mean: Alan M. Ross, Esquire of the Law Offices of Alan M. Ross, Esquire; Elmer Robert Keach, III, Esquire of the Law Offices of Elmer Robert Keach, III, PC; Charles J. LaDuca, Esquire of Cuneo Gilbert & LaDuca, LLP; Gary Mason, Esquire of The Mason Law Firm; and Daniel C. Levin, Esquire of Levin Fishbein Sedran & Berman.
D. Class Notice. Class Notice shall mean the Court-approved form of notice in substantially the same form as Exhibit B.
E. Class Representatives: Class Representatives shall mean Plaintiffs Jennifer Reynolds, Ashley McCormick and Devon Shepard.
F. Class Settlement. Class Settlement shall mean the terms provided in this Settlement Agreement.
G. Court. Court shall mean the United States District Court for the Middle District of Pennsylvania, The Honorable Thomas I. Vanaskie presiding, or his duly appointed or designated successor.
H. Defendant. Defendant shall mean the County of Dauphin and shall include all employees of the County of Dauphin who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
4

I.

Defendant's Counsel. Defendant's Counsel shall mean Frank J. Lavery,

Esquire of Lavery, Faherty, Young & Patterson, P.C.; and Carol Steinour Young,

Esquire of McNees, Wallace & Nurick, LLC.

J. Distribution Amount. Distribution Amount shall mean the amount

available from the Settlement Fund after payment of the costs of notice and

administration of the Settlement, attorneys' fees and expenses, incentive awards to

Class Representatives.

K. Effective Date. Effective Date shall mean thirty days from the date on

which the settlement has been finally approved by the Court, and/or thirty days from the

date on which any appeals from final approval are resolved.

L. Final Approval Hearing. Final Approval Hearing shall mean the hearing

at which the Court will consider and finally decide whether to enter the Final Judgment.

M. Final Judgment. Final Judgment shall mean that Court order that finally

certifies the Settlement Class, approves this Settlement Agreement, approves payment

of attorneys' fees and expenses, and makes such other final rulings as are

contemplated by this Settlement Agreement, in substantially the same form as Exhibit

C.

N. Litigation. Litigation shall mean the above-captioned lawsuit pending in

the United States District Court for the Middle District of Pennsylvania as No.1 :07-CV-

01688.
o.

Mediator. The Mediator shall mean Judith Meyers, Esquire.

5

P. Notice Program. Notice Program shall mean the program for

disseminating the Class Notice to Settlement Class Members, including public

dissemination of the Summary Notice, in accordance with the terms herein.

Q. Notice Date. Notice Date shall mean the date upon which Class Notice is

mailed to known Class Members in accordance with the terms herein.

R. Objection Date. Objection Date shall mean the date agreed upon by the

Parties or otherwise ordered by the Court by which Settlement Class Members must

submit any objection to the Settlement Agreement's terms or provisions and submit any

required statements, proof, or other materials and/or argument.

S. Opt-Out Deadline. Opt-Out Deadline shall mean the date agreed upon by

the Plaintiffs and Defendant or otherwise ordered by the Court by which any Settlement

Class Members who do not wish to be included in the Settlement Class and participate

in the Settlement must complete the acts necessary to properly effect such election to

opt out.

T. Opt-Out List. Opt-Out List shall mean a written list prepared by the

Settlement Administrator of the names of all Settlement Class Members who submit

timely Requests for Exclusion or Opt-Out Notices.
u. Opt-Out Notice. Opt-Out Notice or an Opt-Out shall mean a Request for

Exclusion.
v. w.

Parties. Parties shall mean the Plaintiffs and Defendant. Plaintiffs. Plaintiffs shall mean Jennifer Reynolds, Ashley McCormick,

and Devon Shepard.

6

X. Preliminary Approval Order. Preliminary Approval Order shall mean the order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit D.
Y. Release. Release shall mean the release described in Section VII herein. Z. Released Claims. Released Claims shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein. AA. Released Parties. Released Parties shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein. BB. Request for Exclusion. Request for Exclusion shall mean any request by any Settlement Class Member for exclusion from the Settlement Class in compliance with Section V herein. CC. Settlement. Settlement shall mean the agreement by the Plaintiffs and Defendant to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement. DD. Settlement Administrator. Settlement Administrator shall mean the qualified party selected by the Plaintiffs and Defendant and designated in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiffs nor Defendant shall have any responsibility for any
7

acts or omissions of the Settlement Administrator. The parties have agreed to select Garden City Group as the settlement administrator.
EE. Settlement Agreement. Settlement Agreement shall mean this Settlement Agreement, including any amendment hereto pursuant to Section X. D hereof, and all the exhibits attached hereto.
FF. Settlement Class. Settlement Class shall mean: All persons who have been or will be placed into the custody of the Dauphin County Prison after being charged with misdemeanors, summary offenses, violations of probation or parole or intermediate punishment, civil commitments, or minor crimes who were strip searched upon their entry into the Dauphin County Prison pursuant to the policy, custom and practice of the County of Dauphin. The class period commences on September 16, 2005 and extends to March 12, 2008. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
GG. Settlement Class Members. Settlement Class Members shall mean all persons in the Settlement Class who do not exclude themselves pursuant to Section V herein.
HH. Settlement Fund. Settlement Fund shall mean a fund, governed by terms to be agreed to between Class Counsel and Defendant's Counsel which shall be placed in an escrow account and utilized to administer the monetary requirements of the Settlement. The Settlement Fund will be established by Class Counsel.
8

II. Settlement Amount. Settlement Amount shall mean the amount of Two Million, One Hundred and Sixty Thousand Five Hundred Dollars ($2,160,500.00) to be paid by or on behalf of the Defendant.
JJ. Settlement Website: Class Counsel will establish a website to provide information about the settlement with a World Wide Web address of www.dauphincountystripsearch.com. or something substantially similar.
KK. Strip Search Policy. Strip Search Policy shall mean the written policy, enacted on March 12, 2008, to govern the conduct of all strip searches by Defendant, their agents, and employees upon a person's entry into the Dauphin County Prison.
LL. Summary Notice. Summary Notice shall mean a notice in substantially the same form as that which appears at Exhibit E.
MM. Website Administrator: Website Administrator shall mean the qualified party selected by the Plaintiffs and designated in the Preliminary Approval Order to administer the Settlement Website. Neither Plaintiffs nor Defendant shall have any responsibility for any acts or omissions of the Website Administrator. The parties agree to select I Group as the Website Administrator.
II. REQUIRED EVENTS A. Promptly after execution of this Settlement Agreement by all Parties: 1. Class Counsel and Defendant's Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment in substantially the forms attached hereto as Exhibits D and C, respectively.
9

2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit D, which by its terms shall:
a. Preliminarily approve the terms of the Settlement Agreement, including the certification of the Class for purposes of this Settlement Agreement only, as within the range of fair, reasonable and adequate settlements for purposes of issuing notice;
b. Approve the contents of the Class Notice and methods in the Notice Plan; c. Schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment (in substantially the same form as Exhibit C) approving the Class Settlement, granting Class Counsel's application for fees and expenses, granting the Incentive Bonus application by the Class Representatives, and dismissing the Litigation with prejudice. 3. Class Counsel and Defendant's Counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment. 4. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel and Defendant's Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; provided, however, that in no event shall Defendant be required
10

to agree to any such cure that would increase the cost or burden of the Settlement Agreement to such Defendant.
S. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties' obligations under this paragraph shall be submitted for decision by the Court and the Court's decision shall be binding on the Parties.
III. SETTLEMENT TERMS A. Provision of New Policies and Corrections Officer Training 1. The Defendant affirmatively states that, effective March 12,2008, Dauphin County does not strip search detainees admitted to the Dauphin County Prison on a blanket basis, and does not strip search misdemeanor detainees in the absence of reasonable suspicion. 2. The County revised its strip search policy on March 12, 2008. The Parties agree that the revised policy complies with the Constitution. Corrections officers who work in the Dauphin County Admissions unit have been retrained regarding the revised strip search policy and when strip searches may and may not be
11

performed. The County will use its best efforts to have its Corrections Officers comply with the new revised policies.
3. Defendant will take reasonable steps to ensure that all corrections officers abide by the revised strip search policy.
B. Settlement Fund 1. Dauphin County is not required to, and shall not approve this payment, which is being paid solely by States Self Insured Risk Retention Group, Inc. ("States"). States will pay into the Settlement Fund the sum of $2,160,500.00 2. Upon entry of the Preliminary Approval Order, States will pay into the Settlement Fund the amount of $ 200,000 (the Initial Contribution) to be used by the Settlement and Website Administrator to cover the initial costs of Notice and administration of the Settlement. If, at any time, whether by order of any court or because Defendant exercises an option to withdraw, the Settlement does not become final, then any unspent money remaining from the Initial Contribution shall be returned to States with no obligation on the part of any party to repay any portion of the money actually spent. 3. The remaining monetary obligation of $1 ,960,500.00 will be provided for deposit into the Settlement Fund within thirty days of the Effective Date by either wire transfer or check. Plaintiffs' counsel and/or the Settlement Administrator will provide the necessary forms (e.g., W-9s) to effectuate the issuance of either a wire transfer or check.
12

4. All administrative expenses, including the costs of settlement administration, website administration and the provision of notice to Class Members, as well as the amounts awarded by the Court for attorneys' fees and costs, and incentive awards to the Class Representatives, will be deducted from the Settlement Amount prior to determining the Distribution Amount.
C. Payments to Class Members 1. Each Class Member who submits a timely Claim Form will be entitled to receive their proportionate share of the Distribution Amount, except that no Class Member shall receive a payment greater than $1,400.00. This amount will be distributed to the Class based on the Plan of Distribution attached to this agreement as Exhibit F. 2. No Class Member shall be entitled to more than one proportionate share of the Distribution Amount regardless of the number of times he or she has been booked and/or strip searched at the Dauphin County Jail. 3. In the event that the pro rata share of the settlement paid to Class Members would be greater than $1,400.00, the Defendants' insurance company, SelfInsurers Risk Retention Group Inc., will receive a reverter of all remaining funds. 4. Both parties anticipate that late claims may be filed subsequent to the end of the claims period. Late claims may be allowed, if submitted on or before the date of the Final Approval Hearing, under the sole discretion of Class Counsel for good cause shown. All late claims will be approved by the Court prior to being paid as part of the distribution of the settlement.
13

5. The parties acknowledge that the Class list and list of claimants on this class action settlement will be compiled and exclusively maintained by the Class Counsel. Class Counsel will seek a protective order from the Court to seek to protect this list from public disclosure, and to seek leave of Court to file any such list, or portion of the list, under seal should its disclosure to the Court be necessary for final approval or otherwise requested by the Court. The Defendant's counsel shall be provided with a true and correct copy of the Class list and list of claimants for this class action settlement. The parties further acknowledge that class members have an important interest in being able to maintain their privacy in filing a claim on this class action settlement.
6. Defendants agree not to issue any lien notices to Class Counsel, the Settlement Administrator, or any liability insurance carrier insuring or indemnifying any defendant in this action, with respect to the Jail's room and board and fee-for-service charges.
D. Attorneys Fees and Expenses Class Counsel will petition the Court for an award of attorneys' fees in the amount not to exceed 30% of the Settlement Fund. Class Counsel will also petition the Court for an award of pre-settlement cost and expenses, which will be deducted from the Settlement Fund. Defendant shall not oppose Class Counsel's application for said award of fees and expenses, nor will they oppose any appeal filed by Class Counsel
14

relative to their application for an award of attorneys' fees, so long as such application for attorneys' fees and expenses conforms with the Settlement Agreement.
E. Additional Discovery Defendant will cooperate in a timely and reasonable manner in discovery to determine class size and Class Members' names and addresses, including but not limited to the reasonable production of records necessary to identify the members of the Settlement Class. F. Partial Distribution Pending Appeal In the event that Final Approval of the Settlement is appealed by either party or a third party objector, and if the payment of some portion of the Settlement Fund is not subject to dispute, that undisputed portion of the Settlement Fund shall be distributed in accordance with this agreement. If the distribution of some or all of the settlement proceeds is in dispute due to a pending appeal, the disputed amount will be placed in an insured interest bearing escrow account and shall not be distributed during the pendency of the appeal. In the event that final approval of the Settlement is overturned on appeal, all funds, including interest, will be refunded to States, as per its contributions to the Settlement Fund, with the exception of the Initial Contribution, detailed in section 111(8)(2), and any additional notice and administration costs incurred above the Initial Contribution.
IV. NOTIFICATION TO CLASS MEMBERS A. Responsibilities of the Settlement Administrator and Website Admin istrator
15

1. The Settlement Administrator shall implement and administer the Notice Program.
2. The Settlement Administrator shall be responsible for, without limitation: (i) mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; (iv) otherwise administering the Notice Program; and (v) distributing payments to the Settlement Class Members; and otherwise administering the Notice Program. The Notice Program shall comply with all requirements of applicable law. The Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of its fiduciary duty to the Court, Class Members, or Class Counsel.
3. The Website Administrator will maintain the settlement website, which will provide information about the settlement to Class Members, including notice and claims documents, court documents, and a copy of the Settlement Agreement.
B. Notice 1. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all individuals at their last known or readily ascertainable address and by publication in Harrisburg Patriot News on at least one day per week for three consecutive weeks commencing on the Notice date, and on one occasions during the last ten days of the Claims Period. The mailed notice will be provided in Spanish and English, and newspaper advertisements will provide instruction that a Spanish copy of the notice will be provided upon request.
16

2. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. The Website Administrator will also provide downloadable copies of notices, claim forms, court decisions and other information to class members through a dedicated internet website.
3. Defendant will cooperate in the Notice Program by providing Plaintiffs' Counsel and/or the Settlement Administrator with information reasonably necessary to identify the members of the settlement class. The Defendant has provided Class Counsel with a list of Class members. The Defendant will make reasonable efforts to provide Class Counsel with additional information in their possession upon reasonable notice that such information is required by Class Counsel for purposes of Notice to the Class.
4. Notice will be provided to the class by way of limited televised notice campaign on cable television, with ads to run during the same weeks as the newspaper notice detailed above. The Defendant will have the opportunity to review the ads prior to their broadcast, and any dispute between the parties regarding the content of the ads will be decided by the Court.
5. If, after the initial mailing, the Notice is returned as undeliverable, the Claims Administrator will attempt to locate the Class Members by way of a national locator database or service and, if another address is found, re-mail the Notice to that new address.
17

6. The Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendant's Counsel, attesting to the measures undertaken to provide Notice of the Settlement. The Website Administrator will also provide an affidavit attesting to activity on the settlement website, including number of visitors and number of documents downloaded.
7. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other information about specific Class Members and/or specific Class Members that is provided to it by Defendant, Class Counsel, or by individual Settlement Class Members, shall be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
8. Class Counsel will employ an interpreter on a per diem basis to assist Settlement Class Members whose primary language is Spanish in filing claims under the settlement. The costs of this interpreter will be paid as an administrative cost.
V. REQUESTS FOR EXCLUSION BY CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person
18

elects to be excluded from the Settlement, does not wish to be a Settlement Class Member and elects to be excluded from any judgment entered pursuant to the Settlement.
B. Any Class Member who submits a timely Request for Exclusion may not file an objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement.
C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class Counsel and to Defendant's Counsel together with copies of the Request for Exclusion. Class Counsel and Defendant's Counsel shall jointly report the names appearing on the Opt-Out List to the Court at the time of the Final Approval Hearing.
D. Class Counsel agrees that they will not represent any individuals who opt out from the Settlement in asserting claims against Defendant that are the subject of this agreement.
VI. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Settlement Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support of the objection.
19

B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon one of the Class Counsel and Defendant's Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Court.
C. In accordance with law, only Class Members who may object to the Settlement pursuant to the terms immediately above may appeal any Final Judgment. The proposed Final Judgment shall provide that any Class Member who wishes to appeal Final Judgment, which appeal will delay the distribution of the Settlement to the Class, shall post a bond with this Court in any amount to be determined by the Court as a condition of prosecuting such appeal.
VII. RELEASE. DISMISSAL OF ACTION. AND JURISDICTION OF COURT
20

A. By this Settlement Agreement and the following Release, Defendant, and all of its respective officials, affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers and employees are released from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Class against the Released Persons, or any of them, based upon or related to the actions that are the subject of this Settlement Agreement.
B. This Settlement Agreement and Release does not affect the rights, if any, of Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to, orders enjoining Settlement Class Members from prosecuting claims that are released pursuant to the Settlement Agreement.
D. Upon the Effective Date and the conclusion of any appeals: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Class Members and their successors,
21

predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal.
E. Tolling of Statute of Limitations. Defendant agrees that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Class who has properly opted out of the Settlement, Defendant shall not assert any statute of limitations, repose, or laches defense that did not exist as of September 16, 2007.
VIII. INCENTIVE AWARDS TO CLASS REPRESENTATIVES Given the efforts of the named Plaintiffs on behalf of the Class, Defendant will not oppose an application for awards of $15,000.00 for Class Representatives Jennifer Reynolds and Ashley McCormick, and $10,000.00 for Class Representative Devon Shepard, such amount to be paid before distributions to the general Class.
IX. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation. B. Defendant, through its undersigned attorneys, represents and warrants that it has the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. The execution, delivery and
22

performance by Defendant of this Settlement Agreement and the consummation by

them of the actions contemplated hereby have been duly authorized by all necessary

corporate action on the part of Defendant. This Settlement Agreement has been duly

and validly executed and delivered by Defendant and constitutes their legal, valid, and

binding obligation.

x. MISCELLANEOUS PROVISIONS

A. This Settlement Agreement, and the exhibits and related documents

hereto, are not, and shall not at any time be construed or deemed to be, or to evidence,

any admission against or concession by Defendant with respect to any wrongdoing,

fault, or omission of any kind whatsoever, regardless of whether or not this Settlement

Agreement results in entry of a Final Judgment as contemplated herein. Any payment

of moneys on behalf of the Defendant, or any other action taken, by the Defendant

pursuant to any provision of this Settlement Agreement, shall not at any time be

construed or deemed to be, or to evidence, any admission against or concession by

Defendant with respect to any wrongdoing, fault, or omission of any kind whatsoever,

regardless of whether or not this Settlement Agreement results in entry of a Final

Judgment as contemplated herein. Defendant denies any liability to Plaintiffs and to all

Members of the Class. This provision shall survive the expiration or voiding of the

Settlement Agreement.

B. This Settlement Agreement is entered into only for purposes of

Settlement. In the event that the Effective Date does not occur for any reason or the

Final Judgment is not entered, then this Settlement Agreement, including any releases

23

or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties' settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights pOSitions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties or their counsel.
E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
24

G. Except as otherwise provided in this Settlement Agreement, each party to

this Settlement Agreement shall bear his or its own costs of the Litigation.

H. If any clause, provision or paragraph of this Settlement Agreement shall

for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or

unenforceability shall not affect any other clause, provision or paragraph of this

Settlement Agreement, and this Settlement Agreement shall be construed and enforced

as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had

not been contained herein.

I.

The Parties to this Settlement Agreement reserve the right, by agreement

and subject to the Court's approval, to grant any reasonable extensions of time that

might be necessary to carry out any of the provisions of this Settlement Agreement.

J. All applications for Court approval or Court orders required under this

Settlement Agreement shall be made on notice to Plaintiffs and Defendant.

K. The determination of the terms of, and the drafting of, this Settlement

Agreement, including its exhibits, has been by mutual agreement after negotiation, with

consideration by and participation of all Parties and their counsel. Since this

Settlement Agreement was drafted with the participation of all Parties and their

counsel, the presumption that ambiguities shall be construed against the drafter does

not apply. Each of the Parties was represented by competent and effective counsel

throughout the course of settlement negotiations and in the drafting and execution of

this Settlement Agreement, and there was no disparity in bargaining power among the

Parties to this Settlement Agreement. In entering into this Settlement Agreement, none

25

of the Parties relied on advice received from any other Party or any other Party's counsel.
L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material and
integral parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitute the
entire, fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the Litigation.
M. Notice: 1. Any notice, request or instruction or other document to be given by
any party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:
If to Defendant to: Frank Lavery, Esquire of Lavery, Faherty, Young & Patterson, P.C., 225 Market Street, Suite 304, PO Box 1245, Harrisburg, PA 17108-1245.
If to Class Counselor Plaintiffs to: Alan M. Ross, Esquire of the Law Offices of Alan M. Ross, LLC., 2001 North Front Street, Suite 220, Harrisburg, PA 17102.
N. Dispute Resolution The Parties agree that any disputes regarding the terms and conditions of this Agreement, the Parties' rights and obligations under this Settlement Agreement, and/or the manner in which any issue or dispute arising under this Settlement Agreement shall
26

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Philadelphia, PA 19106
~ The Mason Law Firm 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone: 202.429.2290
Attomeys for Plaintiffs

Attomeys for Defendant

28

 
 Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 1 of 11
CLOSED, HBG, MM, SPADM
United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:07−cv−01688−TIV

Reynolds et al v. The County of Dauphin Assigned to: Honorable Thomas I. Vanaskie Related Case: 1:08−cv−01563−TIV Cause: 42:1983 Civil Rights Act
Plaintiff
Jennifer Reynolds both individually and on behalf of a class of others similarly situated

Date Filed: 09/16/2007 Date Terminated: 12/18/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alan M. Ross Law Office of Alan M. Ross, LLC 2001 North Front Street Suite 220 Harrisburg , PA 17102 717−238−6311 Email: amresquire@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra C. Warren Cuneo Gilbert &LaDuca, LLP 106−A S. Columbus Street Alexandria , VA 22314 202−789−3960 Email: awarren@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles J. LaDuca Cuneo, Gilbert &LaDuca 507 C Street, NE Washington , DC 20002 202−789−3960 Email: charlesl@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel C. Levin Levin, Fishbein, Sedran &Berman 510 Walnut Street Suite 500 Philadelphia , PA 19106 215−592−1500 Email: dlevin@lfsblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer Robert Keach , III Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. box 70 Amsterdam , NY 12010 518.434.1718 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Mason The Mason Law Firm

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 2 of 11

1225 19th St., NW Suite 500 Washington , DC 20036 202−429−2290 Email: gmason@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Migliaccio Mason LLP 1625 Massachusetts Avenue, NW Suite 605 Washington , DC 20036 202.429.2290 Email: nmigliaccio@masonlawdc.com ATTORNEY TO BE NOTICED

Plaintiff
Ashley McCormick both individually and on behalf of a class of others similarly situated

represented by Alan M. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra C. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. LaDuca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel C. Levin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer Robert Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary E. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Herbert Carter both individually and on behalf of a class of others similarly situated

represented by Alan M. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra C. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. LaDuca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 3 of 11

Daniel C. Levin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer Robert Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary E. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Devon Shepard both individually and on behalf of a class of others similarly situated

represented by Alan M. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra C. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. LaDuca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel C. Levin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer Robert Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary E. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The County of Dauphin

represented by Carol Steinour Young McNees, Wallace &Nurick 100 Pine Street P.O. Box 1166 Harrisburg , PA 17108−1166 717−237−5342 Fax: 17172375300 Email: csteinour@mwn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David E. Lehman McNees, Wallace &Nurick 100 Pine Street

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 4 of 11
P.O. Box 1166 Harrisburg , PA 17108−1166 717−237−5285 Fax: 717−237−5300 Email: dlehman@mwn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. DeAngelo McNees Wallace &Nurick 100 Pine St. PO Box 1166 Harrisburg , PA 17108−1166 717−232−8000 Email: jdeangelo@mwn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Devin J. Chwastyk McNees Wallace &Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg , PA 17108−1166 717−232−8000 Fax: 17172375300 Email: dchwastyk@mwn.com ATTORNEY TO BE NOTICED
Devon M. Jacob Lavery, Faherty, Young &Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg , PA 17108−1245 (717) 233−6633, Ext. 32 Fax: (717) 233−7003 Email: djacob@laverylaw.com ATTORNEY TO BE NOTICED
Eric M. Morrison McNees Wallace &Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg , PA 17108−1166 717.237.5473 Email: emorrison@mwn.com ATTORNEY TO BE NOTICED
Frank J. Lavery , Jr. Lavery, Faherty, Young &Patterson, P.C. P.O. Box 1245 225 Market Street Suite 304 Harrisburg , PA 17108−1245 717−233−6633 Fax: 17172337003 Email: flavery@laverylaw.com ATTORNEY TO BE NOTICED
Gary H. Dadamo Lavery, Faherty, Young &Patterson, P.C. 225 Market Street Suite 304 P.O. Box 1245 Harrisburg , PA 17108 717−233−6633

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 5 of 11
Email: gdadamo@laverylaw.com ATTORNEY TO BE NOTICED
Robert G. Hanna , Jr. Lavery, Faherty, Young &Patterson, P.C. 225 Market St. Suite 304 P.O. Box 1245 Harrisburg , PA 17113 717−233−6633 Fax: 717−233−7003 Email: rhanna@laverylaw.com ATTORNEY TO BE NOTICED

Date Filed 09/16/2007
09/16/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/18/2007
09/20/2007 09/20/2007 09/20/2007 09/21/2007
09/25/2007
10/01/2007

# Docket Text
1 COMPLAINT against The County of Dauphin ( Filing fee $350, Receipt Number 1111770), filed by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick. (Attachments: # 1 Civil Cover Sheet)(dfm ) (Entered: 09/17/2007)
2 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1. (dfm ) (Entered: 09/17/2007)
Summons Issued as to The County of Dauphin and provided to Attorney for service on Defendant(s). (dfm ) (Entered: 09/17/2007)
SPECIAL ADMISSION FORM SENT to Alan M. Ross, Esquire. (dfm ) (Entered: 09/17/2007)
SPECIAL ADMISSION FORM SENT to Elmer Robert Keach, III, Esquire. (dfm ) (Entered: 09/17/2007)
SPECIAL ADMISSION FORM SENT to Charles J. LaDuca, Esquire. (dfm ) (Entered: 09/17/2007)
SPECIAL ADMISSION FORM SENT to Daniel C. Levin, Esquire. (dfm ) (Entered: 09/17/2007)
SPECIAL ADMISSION FORM SENT to Gary E. Mason, Esquire. (dfm ) (Entered: 09/17/2007)
3 ORDER − Letter to Counsel from Court Re: Case Assignment and Procedures. (See order for complete details.) Signed by Judge Christopher C. Conner on 09/18/07. (ki) (Entered: 09/18/2007)
4 NOTICE of Appearance by Frank J. Lavery, Jr on behalf of The County of Dauphin (Lavery, Frank) (Entered: 09/20/2007)
5 NOTICE of Appearance by Robert G. Hanna, Jr on behalf of The County of Dauphin (Hanna, Robert) (Entered: 09/20/2007)
6 NOTICE of Appearance by Devon M. Jacob on behalf of The County of Dauphin (Jacob, Devon) (Entered: 09/20/2007)
7 AFFIDAVIT of Service for Summons, Complaint, Disclosure Statement Pursuant to Rule 7.1 Amy Rinesmith served on William T. Tully, Esquire on September 21, 2007, filed by Jennifer Reynolds. (Attachments: # 1 Affidavit Return of Service)(Ross, Alan) (Entered: 09/21/2007)
8 SCHEDULING ORDER: Initial Case Management Conference set for 10/30/2007 @ 09:30 AM; placement of the telephone conference call is the responsibility of the plaintiffs. (See order for complete details.) Signed by Judge Christopher C. Conner on 09/25/07. (ki) (Entered: 09/25/2007)
9 NOTICE of Appearance by Devin J. Chwastyk on behalf of The County of Dauphin (Chwastyk, Devin) (Entered: 10/01/2007)

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 6 of 11

10/10/2007 10/10/2007 10/11/2007 10/24/2007
10/24/2007 10/24/2007 10/25/2007 10/25/2007
10/25/2007
10/31/2007 11/02/2007 11/06/2007 11/13/2007 11/14/2007 11/20/2007 11/21/2007
12/05/2007

10 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Gary E. Mason on behalf of Jennifer Reynolds Attorney Gary E. Mason is seeking special admission. Filing fee $ 25, receipt number 1127657.. (Mason, Gary) (Entered: 10/10/2007)
11 SPECIAL ADMISSIONS FORM APPROVED as to Gary E. Mason, Esquire (Orig: SCR Registry) Signed by Judge Christopher C. Conner on 10/10/07. (ki) (Entered: 10/10/2007)
12 MOTION to Dismiss by The County of Dauphin. (Attachments: # 1 Proposed Order # 2 Exhibit(s))(Lavery, Frank) (Entered: 10/11/2007)
13 ORDER OF RECUSAL/REASSIGNMENT − Judge Christopher C. Conner no longer assigned to the case − recused − Case reassigned to Judge Thomas I. Vanaskie for all further proceedings. CMC set for 10/30/07 CANCELLED. (See order for complete details.) Signed by Judge Christopher C. Conner on 10/24/07. (ki) (Entered: 10/24/2007)
14 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Alexandra C. Warren on behalf of all plaintiffs Attorney Alexandra Warren is seeking special admission. Filing fee $ 25, receipt number 1137602.. (Warren, Alexandra) (Entered: 10/24/2007)
15 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Charles J. LaDuca on behalf of all plaintiffs Attorney Charles LaDuca is seeking special admission. Filing fee $ 25, receipt number 1137621.. (LaDuca, Charles) (Entered: 10/24/2007)
16 BRIEF IN SUPPORT re 12 MOTION to Dismiss filed by The County of Dauphin.(Lavery, Frank) (Entered: 10/25/2007)
17 ORDER re 14 Petition for Special Admission − Pro Hac Vice filed by Ashley McCormick, Devon Shepard, Jennifer Reynolds, Herbert Carter. Special Admission granted for Alexandra C. Warren. Signed by Judge Thomas I. Vanaskie on 10/25/07. (jfg) (Entered: 10/25/2007)
18 ORDER re 15 Petition for Special Admission − Pro Hac Vice filed by Ashley McCormick, Devon Shepard, Jennifer Reynolds, Herbert Carter Special Admission granted for Charles J. LaDuca.Signed by Judge Thomas I. Vanaskie on 10/25/07. (jfg) (Entered: 10/25/2007)
19 CASE MANAGEMENT PLAN by Herbert Carter, Devon Shepard, The County of Dauphin, Jennifer Reynolds, Ashley McCormick. (Keach, Elmer) (Entered: 10/31/2007)
20 CASE MANAGEMENT PLAN Corrected to Include Agreed Upon Deadline for Class Certification Discovery by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick. (Keach, Elmer) (Entered: 11/02/2007)
21 ORDER: Case Management Conference set for 12/12/2007 08:30 AM in Scranton before Honorable Thomas I. Vanaskie.Signed by Judge Thomas I. Vanaskie on 11/6/07. (jfg) (Entered: 11/06/2007)
22 MOTION for Extension of Time to File Brief in Opposition to Motion to Dismiss filed by Jennifer Reynolds. (Attachments: # 1 Proposed Order Proposed Order)(Warren, Alexandra) (Entered: 11/13/2007)
23 ORDER The plaintiff's shall file a brief in opposition to the deft's motion to dismiss and/or an amended complt on or before 11/20/07.Signed by Judge Thomas I. Vanaskie on 11/14/07 (jfg) (Entered: 11/14/2007)
24 AMENDED COMPLAINT against all defendants, filed by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick.(Keach, Elmer) (Entered: 11/20/2007)
25 ORDER 1. Deft County of Dauphin's motin to dismiss (dkt 12), which is directed against the orginal complt is dismissed without prejudice. 2. The County of Dauphin shall plead or move in response to the am/complt in accordance with the requirement of Rule 15(a) of the Federal Rules of Civil Procedure. Signed by Judge Thomas I. Vanaskie on 11/21/07 (jfg) (Entered: 11/21/2007)
26 MOTION to Dismiss the Amended Complaint by The County of Dauphin. (Attachments: # 1 Proposed Order)(Lavery, Frank) (Entered: 12/05/2007)

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 7 of 11

12/05/2007 12/10/2007
12/10/2007
12/11/2007
12/12/2007
12/12/2007
12/12/2007 12/13/2007 12/13/2007 12/18/2007 12/21/2007 12/27/2007 12/27/2007 01/04/2008
01/07/2008 01/08/2008 01/08/2008

27 BRIEF IN SUPPORT re 26 MOTION to Dismiss the Amended Complaint filed by The County of Dauphin.(Lavery, Frank) (Entered: 12/05/2007)
28 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Elmer Robert Keach, III on behalf of Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick Attorney Elmer Keach, III is seeking special admission. Filing fee $ 25, receipt number 1166454.. (Keach, Elmer) (Entered: 12/10/2007)
29 CERTIFICATE of Counsel re 28 Petition for Special Admission − Pro Hac Vice, Certification Regarding Code of Professional Conduct by Elmer Robert Keach, III on behalf of Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick (Keach, Elmer) (Entered: 12/10/2007)
30 ORDER re 28 Petition for Special Admission − Pro Hac Vice, filed by Ashley McCormick, Devon Shepard, Jennifer Reynolds, Herbert Carter. Special admission granted for Elmer Robert Keach, III. Signed by Judge Thomas I. Vanaskie on 12/11/07. (jfg) (Entered: 12/11/2007)
32 ORDER: Pltfs shall move for class certification no later than 7/1/08. Discovery due by 5/1/2008. On or before 4/1/08 pltfs shall provide the Court with a written report conderning the status od discovery. Oral Argument set for 10/20/2008 10:00 AM in Scranton before Honorable Thomas I. Vanaskie.Signed by Judge Thomas I. Vanaskie on 12/12/07. (jfg) (Entered: 12/12/2007)
33 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Nicholas A. Migliaccio on behalf of Jennifer Reynolds Attorney Nicholas A. Migliaccio is seeking special admission. Filing fee $ 25, receipt number 1168924.. (Migliaccio, Nicholas) (Entered: 12/12/2007)
34 MOTION for Extension of Time to File Brief filed by Jennifer Reynolds. (Attachments: # 1 Proposed Order)(Warren, Alexandra) (Entered: 12/12/2007)
35 ORDER granting 34 Motion for Extension of Time to File. The Pltf's shall file a brief in opposition to the deft's motion to dismiss the am/complt on or before 1/8/08. Signed by Judge Thomas I. Vanaskie on 12/13/07 (jfg) (Entered: 12/13/2007)
36 ORDER re 33 Petition for Special Admission − Pro Hac Vice filed by Jennifer Reynolds. Special Admission granted by for Nicholas Migliaccio. Signed by Judge Thomas I. Vanaskie on 12/13/07. (jfg) (Entered: 12/13/2007)
37 NOTICE of Appearance by Gary H. Dadamo on behalf of The County of Dauphin (Dadamo, Gary) (Entered: 12/18/2007)
38 NOTICE of Appearance by Eric M. Morrison on behalf of The County of Dauphin (Morrison, Eric) (Entered: 12/21/2007)
39 ORDER: Telephone Discovery Conference set for 1/4/2008 at 8:30 AM before Honorable Thomas I. Vanaskie. Signed by Judge Thomas I. Vanaskie on 12/27/07. (kn, ) (Entered: 12/27/2007)
40 Letter to Judge Vanaskie from Counsel for Defendants requesting a telephonic conference. (kn, ) (Entered: 12/27/2007)
41 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Discovery conference before Judge Vanaskie on 1/4/08. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Vanaskie on 1/4/08. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr, ) (Entered: 01/04/2008)
43 Letter from James P. DeAngelo requesting telephone conference. (DeAngelo, James) (Entered: 01/07/2008)
44 Letter from Carol Steinour Young re Proposed Protective Order. (Attachments: # 1 Proposed Order)(Young, Carol) (Entered: 01/08/2008)
45 BRIEF IN OPPOSITION re 26 MOTION to Dismiss the Amended Complaint filed by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick. (Attachments: # 1 Exhibit(s) A −− DeRose Deposition, pp. 1−40, # 2 Exhibit(s) A − DeRose

Case: 1:07-cv-1688 As of: 05/14/2010 09:19 PM EDT 8 of 11

01/09/2008
01/14/2008
01/14/2008 01/19/2008 01/23/2008 03/27/2008 03/27/2008 03/28/2008 04/02/2008
05/21/2008 05/22/2008
07/24/2008 07/25/2008

Deposition, pp. 41−80, # 3 Exhibit(s) A − DeRose Deposition, pp. 81−120, # 4 Exhibit(s) A − DeRose Deposition, pp. 121−160, # 5 Exhibit(s) A −− DeRose Deposition, pp. 161−201, # 6 Exhibit(s) B − Post Order, # 7 Exhibit(s) C −− Preliminary Approval Order, McDaniel v. County of Schenectady, # 8 Exhibit(s) D −− Preliminary Approval Order, Hicks v. County of Camden)(Keach, Elmer) (Entered: 01/08/2008)
46 ORDER: that a telephonic conference to discuss a resolution of the continuing dispute between the parties related to preservation of evidence and the protective order proposed by the defense will be held on 1/14/08 at 1:30 p.m. Atty DeAngelo is responsible for arranging the call. Signed by Honorable Thomas I. Vanaskie on 1/9/08. (jfg) (Entered: 01/09/2008)
47 ORDER Confidential information shall include the name, address, telephone numbers, date of birth, date of arrival at the Dauphin County Prison, identity and telephone number of next of kin, offense charged, and the video and photographic images of individuals taken at the Dauphin County Prison. The documents and material that have been marked confidential pursuant to this order shall continue to be treated as confidential at trial. At trial the Court may determine how the documents and material shall be kept confidential at trial. Signed by Honorable Thomas I. Vanaskie on 1/14/08. (jfg) (Entered: 01/14/2008)
48 Letter from Elmer Keach Regading Plaintiffs' Response to Dauphin County's Motion to Dismiss Amended Complaint. (Attachments: # 1 Supplement Defendant's First Motion to Dismiss, # 2 Supplement Exhibits to Defendant's First Motion)(Keach, Elmer) (Entered: 01/14/2008)
50 TRANSCRIPT of Telephonic Discovery Conference held on 1/4/08 before Judge Vanaskie. Court Reporter: K. Yeager. (cr, ) (Entered: 01/19/2008)
51 REPLY BRIEF re 26 MOTION to Dismiss the Amended Complaint filed by The County of Dauphin.(Chwastyk, Devin) (Entered: 01/23/2008)
52 MOTION for Extension of Time to Complete Discovery by Jennifer Reynolds. (Attachments: # 1 Proposed Order)(Warren, Alexandra) (Entered: 03/27/2008)
53 NOTICE by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick Notice of Supplemental Authority of Plaintiffs In Response to Defendant's Motion to Dismiss the Amended Complaint (Levin, Daniel) (Entered: 03/27/2008)
54 ORDER granting 52 Motion for Extension of Time to Complete Discovery Class certification discovery shall be completed on or by 6/1/08. Signed by Honorable Thomas I. Vanaskie on 3/28/08 (jfg) (Entered: 03/28/2008)
55 Letter from Atty Lavery to Judge Vanaskie. I am co−lead counsel for Dauphin county in the above referenced matter. I ma enclosing a copy of the march 7, 2008 Memo and order of Judge Rambo in the Magger of Zimmerman v. Schaffer, 2008 U.S. Dist. Lexis 1784 which we believe bears on the issues in defts pendiing motion to dismiss. (jfg) (Entered: 04/02/2008)
56 MOTION for Extension of Time to Complete Discovery and Class Certification Deadlines by The County of Dauphin. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Young, Carol) (Entered: 05/21/2008)
57 ORDER granting Defendants 56 Motion for Extension of Time to Complete Class Certification Discovery and for the Class Certification motion. Class certification discovery shall be completed by July 1, 2008, and plaintiffs must file the motion for class certification on or before August 1, 2008. Discovery due by 7/1/2008.Signed by Honorable Thomas I. Vanaskie on 5/22/08 (ts, ) (Entered: 05/22/2008)
58 MOTION for Extension of Time to to File Motion for Class Certification by Jennifer Reynolds. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Warren, Alexandra) (Entered: 07/24/2008)
59 ORDER granting 58 Motion to Extend Time to file class certification. Plaintiffs shall file their motion for class certification on or by September 1, 2008Signed by Honorable Thomas I. Vanaskie on 7/25/08 (ts, ) (Entered: 07/25/2008)

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08/19/2008
08/21/2008
08/21/2008 10/01/2008 01/28/2009 01/28/2009 01/28/2009
02/02/2009 04/08/2009
09/11/2009 09/14/2009 09/14/2009 09/29/2009 09/29/2009 09/30/2009

60 ORDER: THATa telephone settlement conference will be held on Thursday, August 21, 2008 at 9:30a.m. Attorney Keach is responsible for placing the call to (570) 207−5720 and all partiesshould be ready to proceed before the undersigned is contacted. Signed by Honorable Thomas I. Vanaskie on 8/19/08. (jfg) (Entered: 08/19/2008)
61 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference Re: Settlement before Judge Vanaskie on 8/21/08. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Vanaskie on 8/21/08. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr, ) (Entered: 08/21/2008)
62 ORDER THAT Defendant Dauphin Countys Motion to Dismissthe Amended Complaint (Dkt. Entry 26) is DISMISSED, WITHOUT PREJUDICE.Signed by Honorable Thomas I. Vanaskie on 8/21/08 (jfg) (Entered: 08/21/2008)
64 ORDER THAT the oral argument previously scheduled for Monday, October 20, 2008 at 10:00 a.m. is cancelled.Signed by Honorable Thomas I. Vanaskie on 10/1/08. (jfg) (Entered: 10/01/2008)
65 MOTION For Preliminary Approval of Settlement and Provisional Class Certification by Jennifer Reynolds. (Attachments: # 1 Exhibit(s) Certificate of Concurrence, # 2 Exhibit(s) Certificate of Service)(Warren, Alexandra) (Entered: 01/28/2009)
66 BRIEF IN SUPPORT re 65 MOTION For Preliminary Approval of Settlement and Provisional Class Certification filed by Jennifer Reynolds.(Warren, Alexandra) (Entered: 01/28/2009)
67 AFFIDAVIT in Support re 65 MOTION For Preliminary Approval of Settlement and Provisional Class Certification filed by Jennifer Reynolds. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 1−A, # 3 Exhibit(s) 1−B, # 4 Exhibit(s) 1−C, # 5 Exhibit(s) 1−D, # 6 Exhibit(s) 1−E, # 7 Exhibit(s) 1−F, # 8 Exhibit(s) 2)(Warren, Alexandra) (Entered: 01/28/2009)
68 EXHIBIT 1 (Corrected) by Jennifer Reynolds re 67 Affidavit in Support of Motion,. (Warren, Alexandra) (Entered: 02/02/2009)
69 ORDER PRELIMINARILY APPROVING SETTLEMENT− Capitalized terms used in this Order have the meanings assigned to them in theSettlement Agreement and this Order. The terms of the parties Settlement Agreement are hereby conditionallyapproved, subject to further consideration thereof at the Final Approval Hearing providedfor below. The Court finds that said settlement is sufficiently within the range ofreasonableness and that notice of the proposed settlement should be given as provided inthis Order. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the followingsettlement class:Signed by Honorable Thomas I. Vanaskie on 4/8/09. (jfg) (Entered: 04/08/2009)
70 MOTION to Appear Pro Hac Vice − Attorney Daniel C. Levin is seeking special admission. Filing fee $ 25, receipt number 03140000000001670831. by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick.(Warren, Alexandra) (Entered: 09/11/2009)
71 ORDER granting 70 Motion to Appear Pro Hac Vice for Atty Daniel C. Levin. Signed by Honorable Thomas I. Vanaskie on 9/14/09 (jfg) (Entered: 09/14/2009)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa ) (Entered: 09/14/2009)
72 NOTICE by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick of Intention to Appear from Tony Waltington (Warren, Alexandra) (Entered: 09/29/2009)
73 NOTICE by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick of Intention to Appear from Lawrence E. Stringer (Warren, Alexandra) (Entered: 09/29/2009)
74 Joint MOTION for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to Class Representatives by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley

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10/16/2009 10/19/2009 10/29/2009 10/29/2009
12/10/2009
12/15/2009 12/17/2009 12/17/2009

McCormick. (Attachments: # 1 Affidavit of Charles J. LaDuca in Support of Joint Motion, # 2 Memorandum of Law in Support of Joint Motion for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to the Class Representatives, # 3 Proposed Order Granting Final Approval of Class Action Settlement and Judgment, # 4 Certificate of Concurrence, # 5 Certificate of Service)(Warren, Alexandra) (Entered: 09/30/2009)
76 Letter from Alexandra C. Warren Enclosing Affidavits of Class Counsel. (Attachments: # 1 Affidavit of Class Counsel)(Warren, Alexandra) (Entered: 10/16/2009)
77 ORDER:THAT a telephone conference concerning settlement administration issues will be held on Thursday, October 29, 2009 at 10:00 a.m. Attorney Alexandra C. Warren is responsible for placing the call to (570) 207−5720, and all parties should be ready to proceed before the undersigned is contacted. Signed by Honorable Thomas I. Vanaskie on 10/19/09. (jfg) (Entered: 10/19/2009)
78 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Telephone conference before Judge Vanaskie on 10/29/09. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Vanaskie on 10/29/09. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr, ) (Entered: 10/29/2009)
80 ORDER:1. The proposed Notice of Revised Deadlines attached hereto is approved.2. A final hearing to determine whether the class action settlement should be approved will be conducted on December 18, 2009, at 10:OO a.m. in the Federal Building and U.S. Courthouse, 228 Walnut Street, Harrisburg, PA 17108. The hearing will be held in a courtroom to be designated by the Clerk of Court. Counsel can obtain information on courtroom assignments by contacting the Clerk's office the Friday before the scheduled appearance. Signed by Honorable Thomas I. Vanaskie on 10/29/09. (jfg) (Entered: 10/29/2009)
81 ORDER 1. The request of the parties counsel to participate in the December 18, 2009 hearing by phone is GRANTED. Plaintiffs counsel is responsible for placing the call to (717) 221−3920, and all parties should be ready to proceed before the undersigned is contacted. 2. Notwithstanding counsels participation in the hearing by phone, a final hearing to determine whether the class action settlement should be approved and allow class members to speak as to the fairness of the settlement or the request for fees and costs, will be conductedon December 18, 2009, at 10:00 a.m. in the Federal Building and U.S. Courthouse, 228 Walnut Street, Harrisburg, PA 17108. The hearing will be held in a courtroom to be designated by the Clerk of Court. Counsel can obtain information on courtroom assignments by contacting the Clerk's office the Friday before the scheduled appearance. Signed by Honorable Thomas I. Vanaskie on 12/10/09. (jfg) (Entered: 12/10/2009)
82 AFFIDAVIT in Support re 74 Joint MOTION for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to Class Representatives of Charles J. LaDuca, Esq. filed by Devon Shepard, Jennifer Reynolds, Ashley McCormick. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) Certificate of Service)(Warren, Alexandra) (Entered: 12/15/2009)
83 AFFIDAVIT in Support re 74 Joint MOTION for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to Class Representatives Fee Affidavit for Elmer Robert Keach, III filed by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick.(Keach, Elmer) (Entered: 12/17/2009)
84 ORDER THAT prior to tomorrows final settlement hearing, Plaintiffs Class Counsel, Cuneo, Gilbert &LaDuca, LLP, shall provide the Court with additional information in support of its Hours and Expenses request. The additionalinformation shall include: a listing of each of the attorneys who participated in the matter; identification as to whether they are partners, associates, or support staff; a firm biography; and biographies for each of the partners and associates participating in the matter. Counsel shall also provide a written explanation of the entry entitled litigation fees in the amount of $2,500 on the expense report of Cuneo, Gilbert &LaDuca, LLP. Signed by Honorable Thomas I. Vanaskie on 1217/09. (jfg) (Entered: 12/17/2009)

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12/17/2009 12/17/2009 12/18/2009
12/21/2009 01/11/2010 01/12/2010 01/12/2010

85 AFFIDAVIT in Support re 74 Joint MOTION for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to Class Representatives Supplemental Affirmation of Elmer Keach Reducing Request for Expert Expenses filed by Herbert Carter, Devon Shepard, Jennifer Reynolds, Ashley McCormick.(Keach, Elmer) (Entered: 12/17/2009)
86 AFFIDAVIT in Support re 74 Joint MOTION for Final Approval of Class Action Settlement, for an Award of Expenses and Attorneys' Fees, and for Approval of Incentive Award to Class Representatives (filed in accordance with Order dated December 17, 2009) filed by Devon Shepard, Jennifer Reynolds, Ashley McCormick. (Attachments: # 1 Exhibit(s) Certificate of Service)(Warren, Alexandra) (Entered: 12/17/2009)
87 ORDER This Court has considered Class Counsels request and hereby grants an award of fees in the amount of twenty−five percent (25%) of the gross settlement amount, and an award of all expenses incurred. The Settlement Class Representatives, Jennifer Reynolds and Ashley McCormick, are entitled to and are each hereby awarded a payment of $15,000, and Class Representative Devon Shepard is awarded a payment of $10,000. These awards are in recognition of theefforts the Class Representatives undertook in connection with this lawsuit. The Court finds that an amount of attorneys fees in the amount of twenty−fivepercent (25%) of the gross settlement is reasonable under the circumstances of this case. Signed by Honorable Thomas I. Vanaskie on 12/18/09. (jfg) (Entered: 12/18/2009)
89 COURT REPORTER NOTES OF PROCEEDINGS filed by L. Shuey of settlement before Judge Vanaskie on 12/18/09. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Vanaskie on 12/18/09. By s/ L. Shuey. (Court Reporter Notes are viewable by court staff only). (ctrep1, ) (Entered: 12/21/2009)
90 LETTER − from Tony Blount re: status of case. (docket sheet mailed) (jc) (Entered: 01/11/2010)
91 ORDER THAT class counsel shall respond to Mr. Blounts request, informing him of the status of the above−captioned action and his status as a potential class member, within seven (7) days of the date of this Order. Signed by Honorable Thomas I. Vanaskie on 1/12/10. (jfg) (Entered: 01/12/2010)
92 Letter from Alexandra C. Warren to Mr. Tony Blount. (Warren, Alexandra) (Entered: 01/12/2010)