Case 4:00-cv-04202-LLP Document 163 Filed 04/02/07 Page 1 of 1 PageID #: 1194

Supreme Court of the United States

Office of the Clerk Washington, DC 20543-0001

S{}-93 PIcf

March 26, 2007

William K. Suter
E D ClerkOf~ul
(202) 47(J'ltJl'

Clerk United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Courthouse III S. 10th Street, Rm. 24329 St. Louis, MO 63102
Re: Jodie Smook v. Minnehaha County, South Dakota, et al. No. 06-1034 (Your No. 05-1363)

MAR 2 92007
MIQ-jAEL (;Ai~~, ClER#( Of COUR1
FILED
APR - 2 2007
~~
C\000- vJ.or

Dear Clerk:
The Court today entered the following order in the above-entitled case:
The motion of Juvenile Law Center for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.

Sincerely,
W~./:.~
William K. Suter, Clerk

RECEiVED
MAR 29 2007
U.S. COURT OF Apo
EIGHTH CIRCu7:LS

 
 Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 1 of 6 PageID #: 1

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

JODIE SMOOK, by VICKY and

)

RANDY SMOOK, her parents,

)

individually and on behalf of all

)

other persons similarly situated,

)

)

Plaintiffs,

)

vs.

)

)

MINNEHAHA COUNTY, SOUTH DAKOTA; )

JIM BANBURY, Individually and as Director )

of Minnehaha County Juvenile Detention Center, )

and JOHN and JANE DOE DETENTION

)

CENTER OFFICERS,

)

)

Defendants.

)

Jury Demanded

FILED
NOV 0 1 2000

COMPLAINT

Plaintiff Jodie Smook, by her parents, Vicky and Randy Smook, and by counsel,

complains of defendants Miunehaha County, South Dakota, James Banbury, individually and as

Director of the Minnehaha County Juvenile Detention Center ("Juvenile Detention Center"), and

individual John and Jane Doe Officers, as follows:

NATURE OF THE ACTION

1. This action is brought pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1983,

("Section 1983"), and the First, Fourth and Fourteenth Amendments to the United States

Constitution, seeking to redress the defendants' unlawful policy and practice of strip searching

minors without probable cause and questioning them regarding their religious beliefs and

practices.

JURISDICTION AND VENUE

2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 2 of 6 PageID #: 2
-

3. Venue is proper because all of the defendants reside or are located in the District

of South Dakota, Southern Division and all of the conduct complained of occurred within this

District.

PARTIES

4. Plaintiff Jodie Smook ("Smook") is a minor who resides with her parents, Vicky

Smook and Randy Smook, in Luverne, Minnesota.

5. Defendant Minnehaha CollOty is and, at all times relevant to this cause of action,

was a political subdivision of the State of South Dakota that operates, manages, directs and

controls the Minnehaha CollOty Juvenile Detention Center.

6.

Defendant James Banbury, at a1l times relevant to this cause of action, was

Director of the Minnehaha CollOty Juvenile Detention Center who, upon information and belief,

had final authority to establish certain policies for the Detention Center including but not limited

to policies concerning the strip searching and questioning of minors detained and/or arrested.

Banbury is sued in his individual capacity for his llOlawful acts llOder color of law.

7. John and Jane Doe Detention Center Officers are the officers, employees and

agents of the other defendants who conducted the unlawful strip search in the Minnehaha CollOty

Juvenile Detention Center.

CLASS ALLEGATIONS

8. Smook brings this action in an individual capacity and as a representative of a1l

others similarly situated minors who have been arrested for alleged violations of curfew laws or

other minor offenses and detained at the Minnehaha County Detention Center and strip searched

(Count I) and/or questioned about their religious beliefs or practices (CollOt II).

Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 3 of 6 PageID #: 3
-

9. The classes are so numerous that joinder of all members is impracticable. The classes consists of all persons who have been i~ured in any way by the unconstitutional practices, acts and policies of the defendants and their agents. On information and belief there are over one hundred persons in each class.
10. Questions of fact and/or law exist which are common to all members of the putative classes. These questions include, but are not limited to:
a. Whether the defendants' conduct was violative of the laws and protections of the United States of America and/or the State of South Dakota;
b. Whether the defendants' conduct is the subject of injunctive relief; and c. What is the proper measure of damages and other remedies for the
defendants' violations of law. II. The plaintiff will fairly and adequately protect and represent the interest of the classes. Plaintiff seeks no relief antagonistic or adverse to the members of either class. Plaintiffs rights and damages suffered are typical of all members of each class. The defendants have acted or have refused to act on grounds applicable to each entire class. Plaintiffs counsel are able and experienced in the prosecution of class actions. 12. A class action is the only appropriate method for the adjudication of this controversy. Individual actions by individual members would create a risk of inconsistent results and would be unnecessary and duplicative of this litigation. Such individual actions would work a hardship on each and every member of each class and the court system.
STATEMENT OF CLAIMS 13. On August 8,1999, Smook, who was 16-years-old at the time, and three other minor female friends were detained by Sioux Falls Police after having car trouble. It was after

Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 4 of 6 PageID #: 4
-

11 :00 p.m., which was the beginning of the curfew period for persons nnder the age of 18 in Sioux Falls.
14. The police officers handcuffed Smook and the other young women and transported them to the Minnehaha County Juvenile Detention Center.
15. At the Detention Center, Smook and the other girls were questioned about their religious beliefs and practices, and ordered to answer those questions as part of the detention process.
16. After being questioned, the plaintiff and each of her three friends were individually ordered into a bathroom and strip searched at the direction ofthe Juvenile Detention Center's personnel.
17. The defendants did not have any lawful basis to inquire about detainees' religious beliefs or practices or to strip search them and they acted pursuant to unconstitutional policies of the Minnehaha Connty Juvenile Detention Center in doing so.
18. Plaintiff and the other girls were ultimately released to their parents and issued
citations for curfew violations. 19. On information and belief, Banbury, as Director of the Juvenile Detention Center,
was aware of andlor directed the nnconstitutional policies. COUNT I
42 U.S.C. § 1983 - Fourth Amendment 20. Smook incorporates by reference the allegations of paragraphs 1 through 19. 21. The actions complained of in paragraphs 13 through 19 were done pursuant to an unlawful and unconstitutional policy or practice of conducting strip searches of minors brought to the Juvenile Detention Center without probable cause to believe they had weapons or contraband.

Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 5 of 6 PageID #: 5
-

22. The actions complained ofhave caused Smook and the members ofthe plaintiffclasses to be subjected to an tmreasonable search and seizure, deprived of their liberty, embarrassed, humiliated, subjected to extreme emotional distress, and deprived ofrights secured by the Fourth and Fourteenth Amendments to the Constitution ofthe United States.
COUNT II 42 U.S.c. § 1983 - First Amendment 23. Smook incorporates by reference the allegations of paragraphs I through 19. 24. The actions complained of in paragraphs 13 through 19 were done pursuant to an unlawful and unconstitutional policy or practice ofquestioning juvenile detainees about their religious beliefs and practices. 25. The actions complained ofhave caused Smook and the members ofthe plaintiffclasses to be subjected to an invasion of privacy and intimidation in the exercise of the rights to freedom of religion and association under the First and Fourteenth Amendments ofthe Constitution ofthe United States. WHEREFORE, Plaintiff Jodie Smook prays that this Court: A. Enter judgment in favor ofSmook and the plaintiffclasses and against the defendants Minnehaha County, James Banbury, and John and Jane Does for violation of the Fourth, First and Fourteenth Amendments to the United States Constitution; B. Declare that the actions of the defendants alleged III this complaint were unconstitutional; C. Enter a preliminary and permanent injunction ordering defendants to refrain from strip searching juvenile detainees without probable cause to believe they have weapons or contraband;

5

Case 4:00-cv-04202-LLP Document 1
-

Filed 11/01/00 Page 6 of 6 PageID #: 6
-

D. Enter a preliminary and permanent injunction ordering defendants to refrain from

questioning detainees about religious beliefs or practices;

E.

Award Smook and the plaintiff classes appropriate compensatory and punitive

damages, against the defendants jointly and severally;

F. Award Smook and the plaintiff classes the costs and attorneys fees incurred in this

action; and

G. Grant Smook and the plaintiff classes such additional relief as is just and proper.

* * *
Plaintiffs demand trial by jury on all issues for which a trial by jury is allowed.

Respectfully submitted,
7
/
/
One of t(i" attorneys for the plaintiffs

Matthew J. Piers Mary M. Rowland Gessler, Hughes & Socol, Ltd. Three First National Plaza, Suite 2200 Chicago, Illinois 60602 (312) 580-0100
Local Counsel: James Abourezk Abourezk Law Offices, P.C. P.O. Box 1164 Sioux Falls, South Dakota 571 03 (605) 334-8402

C:\Clients\S MOQK\com plaint.wpd October 30, 2000/djs-3pm
6

 
 Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 1 of 7 PageID #: 79

FILED

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

MAY 222001

SOUTHERN DIVISION

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ~;a'Q-.*lL~W

JODIE SMOOK, by VICKY and RANDY **

CIV 00-4202

SMOOK, her parents, individually and on *

behalf of all persons similarly situated,

*

*

Plaintiff,

*

*

-V8-

*

MINNEHAHA COUNTY, SOUTH

* *

DAKOTA; JIM BANBURY, individually *

and as director of Minnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

MEMORANDUM OPINION AND ORDER

Defendants.

* *

*
****************************************************

Jodie Smook, the Plaintiff in this purported class action, has filed a Motion to Compel the

Defendants to disclose information relating to certain minors who were taken into the cllstody ofthe

Minnehaha County Juvenile Detention Center. For the reasons stated below, the Motion to Compel

is granted, subject to a protective order, on the condition that Plaintiff first obtain release of the

records from the Circuit COllrt of Minnehaha County.

BACKGROUND Plaintiff alleges that her civil rights were violated at the Minnehaha County Juvenile Detention Center (JDC). According to the Complaint, Plaintiff and three ofher minor friends were taken into custody on August 8, 1999, after Sioux Falls policemen found them out after the city's 11 :00 p.m. curfew for children under the age of eighteen. At the time, Plaintiff was sixteen years old. She and her friends were transported to the JDC where, allegedly, they were questioned about their religious beliefs and practices, individually ordered into a bathroom, and strip searched. Plaintiff claims that these actions violated her constitutional rights.

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 2 of 7 PageID #: 80
Plaintiffalso alleges that she and her friends are not the only minors who were asked about
their religious beliefs and strip searched at the JDC. According to the Complaint, the mc had a
policy of conducting strip searches of minors, even without probable cause that the minors had weapons or contraband, as well as a policy of questioning juvenile detainees about the religious beliefs and practices. Plaintiff alleges that more than 100 minors were subjected to each of the JDC's policies, and seeks to certify a class consisting of "all persons who have been injured in any way by the unconstitutional practices, acts, and policies of the defendants and their agents."
With an eye toward class certification, which has not yet been granted, Plaintiff has sought discovery relating to the class. In particular, Plaintiffhas propounded an interrogatory asking, with respect to each minor who was taken to the JDC for a curfew violation between November I, 1997 and November 1,2000: (a) date ofbirth, (b) social security number, (c) gender, (d) date and time the minor was admitted and released, (e) whether the minor was strip searched, (1) name ofthe employee or officer who conducted the search, (g) why the strip search was conducted, (h) whether any contraband or weapons were discovered as a result of the search, (i) any charge or charges lodged against the minor, and (j) disposition of the charge brought against the minor. (PI. First Set of Interrogatories to Def. Banbury '14.) Plaintiffhas also sought the same information with respect to minors who were strip searched during the same time period and who were charged with offenses other than drug offenses, violent offenses, or weapons offenses. (Id. ~ 5.)
Defendants obj ected to the above-described interrogatories on the grounds that they seek information from which state law prohibits them from disclosing, and that answering the interrogatories would be unduly burdensome. Plaintiff has brought a motion to compel the Defendants' response.
DISCUSSION In class actions, it is often necessary for the named plaintiffs to produce factual evidence, in addition to their allegations, before a class may be certified. See General Telephone Co. v. Falcon, 457 U.S. 147,160,102 S. Ct. 2364,2372,72 L. Ed. 2d 740 (1982) (noting that "it maybe necessary for the court to probe behind the pleadings before coming to rest on a certification question").
2

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 3 of 7 PageID #: 81
Consequently, a federal district court may permit discovery prior to class certification, in order to provide the plaintiffan opportunity to satisfy the requirements for maintaining a class action. Witten v. A.H. Smith & Co., 104 F.R.D. 398, 399 (D. Mary. 1984); see also Wright, Miller & Kane, Federal Practice and Procedure: Civil2d § 1796.1 (1986); Manual for Complex Litigation (Third) § 30.12 (2000). Of course, discovery should not be allowed to a plaintiff who is seeking facts to support allegations of class-wide injury for which she has no support in the first place. Witten, 104 F.3d at 399.
In this case, it does not appear that the Plaintiff has embarked on a fishing expedition. The Complaint alleges that three minors besides her were strip searched and asked about their religious beliefs and practices. The blank admission form attached to Plaintiffs Motion to Compel also suggests that such actions were matters of policy. The form includes spaces to write down the detainee's "religious preference" and "attendance," as well as spaces to inventory pants, shirts, socks, and "briefs/panties." The local news media also carried articles on the JDC's alleged strip search policy. While the Plaintiff may be unsure whether her claims are typical of those of the purported class and whether she can adequately represent that class, there is a sufficient factual basis for her allegations of class-wide harm to permit further discovery.
The principal obstacle to further discovery is South Dakota's policy of confidentiality with respect to records ofjuvenile delinquency. One South Dakota statute provides:
The records oflaw enforcement officers and agencies concerning all children taken into temporary custody or issued a summons or citation [under certain statutes
pertaining to juvenile justice1shall be maintained separately from the records of
arrest and any other records regarding detention of adult persons. The records concerning children, including their names, may not be inspected or disclosed to the public except:
(1) By order ofthe court; (2) If the court orders the child to be held for criminal proceedings, as
provided in chapter 26-11; (3) If there has been a criminal conviction and a presentence
investigation is being made on an application for probation; or
3

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 4 of 7 PageID #: 82

(4) Any child or the child's parent or guardian may authorize the release of records to representatives of the United States military for the purpose of enlistment into the military service.
SDCL 26-7A-27. Another statute provides:
No fingerprint, photograph, name, address or other information concerning the identity of any child taken into temporary custody or issued a summons or citation
[under the same statutes pertaining to juvenilejustice1may be released or transmitted
to the federal bureau of investigation or any other person or agency except in the following instances:

(1) To the person or party specifically authorized by order of the court; and
(2) To courts, law enforcement agencies, prosecuting attorneys, court services officers and the department of social services if the child is an adjudicated delinquent offender.

*

*

*

SDCL 26-7A-28. Neither ofthese statutes specifies the circumstances under which "the court" may

order the release of information.

The Court is inclined to grant the Motion to Compel. However, under the statutes quoted above, this Court has no power to order the release of records from the JDC. The statutes do not provide for the release of information by order of "a court," they require an order of "the court." SDCL §§ 26-7A-27(1), 26-7A-28(l). For purposes of these statutes, the term "court" is expressly defined as the State circuit court. SDCL 26A-7A-l(IO). In order to obtain release of the records, the Plaintiff must apply to the Circuit Court of Minnehaha County.!

If Plaintiff eventually obtains such records, the records will be subject to a protective order issued by this Court. Such an order may issue, as justice requires, "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). The issuance of a protective order is particularly appropriate in a case which, like this one, requires the

Under appropriate conditions, South Dakota law permits the disclosure of confidential juvenile records. See E.P. v. Riley, 604 N.W.2d 7,18-19 (S.D. 1999).
4

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 5 of 7 PageID #: 83
disclosure of confidential infonnation for the development of the plaintiffs case. See Pearson v. Miller, 211 F.3d 57, 72-73 (3d Cir. 2000); Gillard v. Boulder Valley SchoolDist RE-2, 196 F.R.D. 382, 386 (D. Colo. 2000).
The decision whether to issue such a protective order, as well as the order itself, must balance the Plaintiff's legitimate discovery interests with the legitimate interests that potential class members have in keeping their juvenile records secret. See Pearson, 211 F.3d at 73. It must also weigh South Dakota's independent interest in maintaining the confidentiality ofits juvenile justice records. See Riley, 604 N.W.2d at 18-19 (the consent to disclosure of records by ajuvenile and his mother did not, by itself, mandate release of the records). Finally, in a class action, the order should also take into account society's interest in the efficient administration ofjustice.
In this case, the balance ofthese interests points decidedly toward the entry of a protective order. The disclosure ofjuvenilejustice records will enable the Plaintiffto develop evidence related to class certification and to the merits of her case. The interests ofjustice favor the development of evidence related to other potential plaintiffs so that as many claims as possible can be resolved in a single lawsuit. At this point in the litigation, however, there is no reason to pennit the disclosure of such infonnation to anyone except the Plaintiff's lawyers and her lawyer's employees. See Pearson, 211 F.3d at 73. The Court will take steps to ensure that the identities ofjuveniles are not disclosed to the public through the Court filings in this case. In addition, in order to protect potential members ofthe class from undue annoyance or embarrassment, the protective order will prohibit the Plaintiff's lawyers from contacting potential class members through the use ofinfonnation in the confidential records.
In the meantime, the Plaintiff may still bring a motion for class certification. Given the initial obstacles to discovering relevant infonnation, the Court will take a liberal view toward certification ofa class. See Cook v. Rockwell Tnt'! Corp., 151 F.R.D. 378, 381 (D. Colo. 1993); Wright, Miller & Kane, supra, § 1785 at 128-33. If a class is eventually certified, the Plaintiff may issue a notice to potential class members in a manner approved by the Court, see Fed. R. Civ. P. 23(c)(2), and in that way obtain evidence related to her Complaint. Plaintiffs Agreed Motion for
5

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 6 of 7 PageID #: 84
an Extension of Time will be granted. Any motion for class certification must be filed within fourteen days after service of this Order. Accordingly,
IT IS ORDERED: (1) That the Motion to Compel (Docket No. 19) is granted, subject to the provisions of
this Order, and on the condition that the Plaintiff obtain from the Minnehaha County Circuit Court an order authorizing the release of the requested information.
(2) That any confidential information related to juvenile detainees that is released to Plaintiffs counsel pursuant to an order ofthe circuit court shall not be disclosed to the Plaintiff, her parents, or to any other person, with the exception of persons regularly employed or associated with Plaintiffs counsel whose assistance is required by Plaintiffs counsel in the preparation of this case.
(3) That no records or confidential information obtained pursuant to an order of the circuit court shall be filed with the Court, unless the names and addresses ofjuveniles who were allegedly detained at the Juvenile Detention Center are first redacted. Information obtained from other sources may be filed with the Court, subject to the next paragraph of this Order.
(4) That no person who was allegedly taken into the custody of the Juvenile Detention Center shall be identified by his or herreal name in filings with the Court, unless that person expressly agrees to be so identified. Persons who have not expressly consented to such identification - including persons whose names and addresses are required to be redacted - may be referred to in pseudonym. Whenever persons are referred to in pseudonym in a filing with the Court, the parties shall file under seal a statement of the real names of the parties identified by pseudonym and shall also provide the statement to opposing counseL
(5) That Plaintiffs lawyers and her lawyers' agents or employees shall not directly or indirectly contact any potential class member, or the family or friends of any potential class member, through the use of records or confidential information obtained pursuant to an order of the circuit court.
6

Case 4:00-cv-04202-LLP Document 24 Filed 05/22/01 Page 7 of 7 PageID #: 85 (6) That the Plaintiffs Agreed Motion for an Extension of Time (Docket No. 21) is granted, and Plaintiffshall have fourteen days from the service ofthis Order in which to file any motion for class certification.
Dated this ~d~ ay of May, 2001.
BY THE COURT: ATTEST: JOSEPH HAAS, CLERK
()JJ ~~ BY: -.........,(::':SE~AL'?'):......v.>""--'D::CE=P=U=T=-Y=--
7

 
 Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 1 of 9 PageID #: 185

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

MAR 20 2Im.

SOUTHERN DIVISION

****************************************************

JODIE SMOOK, by VICKY and RANDY **

CIV 00-4202

SMOOK, her parents, individually and on *

behalf of all persons similarly situated,

*

*

Plaintiff,

*

*

-vs-

*

*

MINNEHAHA COUNTY, SOUTH

*

DAKOTA; JIM BANBURY, individually *

and as director of Minnehaha County

*

MEMORANDUM OPINION AND ORDER

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

Defendants.

* *

*
****************************************************
Plaintiff, Jodie Smook, filed a Motion for Class Certification, Doc. 25, which alleges that the

defendants violated the constitutional rights ofjuvenile pre-trial detainees. Following a discovery

dispute, the Court granted plaintiffs motion to compel regarding other minors who were processed

at the Minnehaha County Juvenile Detention Center ("JDC") and subjected to a strip search and/or

questioning regarding their religious beliefs and practices. (See Doc. 36.) Following the receipt of

the pertinent lists, plaintiff filed a Supplement in Support of Motion for Class Certification

("Supplement") (Doc. 39) and attached as Exhibits to the Supplement three lists ofminors processed

at the JDC. For the reasons stated below, the Motion for Class Certification will be granted.

BACKGROUND
Plaintiff alleges that her civil rights were violated atthe JDC. According to the Complaint, plaintiff and three of her friends were arrested by Sioux Falls policemen for curfew violations on August 8, 1999. The four teenagers were taken to the JDC where, allegedly, they were questioned

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 2 of 9 PageID #: 186
about their religious beliefs and practices, individually ordered into a bathroom, and strip searched. According to the Complaint, the JDC had a policy of conducting strip searches of minors, even without probable cause to believe that the minors had weapons or contraband, as well as a policy of questioning juvenile detainees about the religious beliefs and practices. Plaintiff alleges that more than 100 minors were subjected to each ofthe JDC's policies, and seeks to certify a class consisting of "all minors who were charged with minor offenses and were, pursuant to JDC policy, strip searched and/or subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center between November 1, 1997 and November 1,2000."
In the Supplement plaintiffproposes to certify two separate classes based on the defendants' assertion that the two policies at issue in this case had different life-spans. The first proposed class would be defined as: "all minors who were charged with minor offenses and were, pursuant to JDC policy, strip searched at the Minnehaha County Juvenile Detention Center between November 1, 1997 and November 1,2000." The second proposed class would be defined as: "all minors who were charged with minor offenses and were, pursuant to JDC policy, subjected to questioning about private matters, including but not limited to questions about their religious beliefs and practices, at the Minnehaha County Juvenile Detention Center between November 1, 1997 and November 1, 2000." The phrase "minor offenses" proposed by plaintiff would include petty theft, liquor violations, being a runaway and curfew violations.
According to the defendants' Answers to Interrogatories, the policy under which plaintiffwas searched had been in effect since approximately June 1999. Plaintiff appears to concede that the policy began sometime in June 19991 and ended on September 14, 1999. In an article dated September 5, 1999, the Argus Leader reported that 234 juveniles were taken to the JDC for curfew violations in 1998, and 210 were taken there from January through July of 1999. Despite publicity in the local newspaper and on local television news, only two other parents have contacted plaintiffs
Plaintiffs Reply brief says that the policy was in effect "[d]uring the summer of 1999." (Reply at 1.) Her own experience - being stopped in June 1999 but not being taken to the JDC - corroborates the defendant's assertion that the policy started sometime in June 1999.
2

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 3 of 9 PageID #: 187
mother, Vickie Smook, about joining this lawsuit. Some parents, the number of which is not specified, have contacted plaintiffs counsel about joining the suit.
DISCUSSION When properly maintained, a class action promotes judicial efficiency and, in addition, may provide a remedy to persons for whom it would not be economically feasible to obtain relief individually. See Deposit Guaranty Nat'} Bank v. Roper, 445 U.S. 326, 339 (1980). To bring a class action under the Federal Rules of Civil Procedure, a plaintiff must meet both the general prerequisites for class actions in Rule 23(a) as well as the requirements for at least one of the particular kinds oftransactions listed in Rule 23(b). Fed. R. Civ. P. 23. Plaintiffseeks certification under both Rule 23(b)(2) and Rule 23(b)(3). "Certification is not irreversible and may be altered or amended as the case progresses towards resolution on the merits." Cook v. Rockwell Int'! Corp., 151 F.R.D. 378 (D. Colo. 1993).
A. Prerequisites Rule 23(a) lists four prerequisites for the maintenance of a class action. In particular, the Rule 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 ofthe 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). These prerequisites are usually referred to as numerosity, commonality, typicality, and adequacy of representation.
1. Numerosity Plaintiff has shown that the proposed class is sufficiently numerous to warrant class certification. Although a lesser number can satisfy numerosity, a rule ofthumb is that a class offorty members satisfies the numerosity requirement. See Consolidated Rail Corp. v. Town ofHyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing 1 Newberg on Class Actions 2d § 3.05 (1985)). Prior to the
3

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 4 of 9 PageID #: 188
Court's Order dated July 31,2001 granting plaintiffs motion to compel, the plaintiffrelied on news reports to satisfy the numerosity requirement. Pursuant to the Court's Order dated July 31,2001, however, defendants disclosed a list of minors that plaintiff contends shows there were approximately 300 curfew arrests processed at the JDC between June 1, 1999 and September 15, 1999. The Court reviewed the list attached as Exhibit A to plaintiffs Supplement. Plaintiff represents that Exhibit A is a list ofminors arrested for curfew violations. The list does not state that the minors listed therein were arrested for curfew violations. But defendants have not objected to plaintiffs characterization ofthe list and the Court will accept, for purposes ofdeciding the pending motion, plaintiffs representation that Exhibit A represents minors arrested for curfew violations and processed at the JDC. Having reviewed Exhibit A for the time period between June 1, 1999 and September 15, 1999, the Court finds well over 200 minors were arrested for curfew violations. This number ofpotential class members is sufficient to satisfy numerosity. Moreover, plaintiffrepresents, without challenge by the defendants, that two additional lists attached to plaintiffs Supplement as Exhibits C and D show that approximately 265 minors were processed during the pertinent time period for "curfew and other violations" and approximately 250 minors were processed during the pertinent time period for "offenses other than drug offenses, violent offenses or weapon offenses."
2. Commonality Although Rule 23(a) requires questions oflaw or fact common to the class, those questions do not have to be identical as applied to each member of the class. See Paxton v. Union National Bank, 688 F.2d 552, 561 (8th Cir. 1982) (stating that "the rule does not require that every question of law or fact be common to every member of the class). Defendants suggest that plaintiffs treatment was an isolated incident, because she has not produced testimony from additional persons claiming to have been subjected to or similarly affected by the challenged policy. The plaintiffhas, however, produced a blank admission form apparently used by the JDC that includes spaces to write down the detainee's "religious preference" and "attendance," as well as spaces to inventory pants, shirts, socks, and "briefs/panties." The admission form supports plaintiffs assertion that the JDC had a policy of engaging in conduct that she claims is unconstitutional. Whether the conduct which
4

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 5 of 9 PageID #: 189
resulted from the policy was in fact constitutional is a legal question that class members will have In common.
3. Typicality At this stage of the proceedings, plaintiff has also established typicality. "Typicality under Rule 23(a)(3) means that there are other members of the class who have the same or similar grievances as the plaintiff." Alpern v. Utilicorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (quotation marks and citation omitted). Variations in the facts underlying the claims ofthe plaintiff and the potential class members will not preclude class certification if the plaintiff's claims arise from the same event or course of conduct as the class claims, and give rise to the same legal or remedial theories. See id. In this case, all ofthe members ofthe putative class, including the named plaintiff, were allegedly subject to the same policy administered by the JDe. There is nothing atypical about plaintiff's claim that would prevent class certification.
4. Adequacy of Representation The plaintiff is also an adequate representative for the class. "The focus ofRule 23(a)(4) is whether: (1) the class representatives have common interests with the members ofthe class, and (2) whether the class representatives will vigorouslyprosecute the interests ofthe class through qualified counsel." Paxton, 688 F.2d at 562-63. Defendants do not argue that plaintiff cannot adequately represent the class. There is no indication that plaintiff's interests are antagonistic to the interests of other class members, or that she will not vigorously promote the interests of the class.
B. Certification under Rule 23(b)(2) This case meets the requirements for certification under Rule 23(b)(2). As a general rule, "[c]ertification is appropriate under subsection (b)(2) if classwide injunctive relief is sought when the defendant 'has acted or refused to act on grounds generally applicable to the class. '" DeBoer v. Mellon Mort. Co., 64 F.3d 1171, 1175 (8th Cir. 1995) (quoting Rule 23(b)(2». Defendants oppose certification under Rule 23(b)(2) on the grounds that they stopped implementing the challenged policy in September 1999, before this lawsuit was ever filed. On this argument, however, defendants
5

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 6 of 9 PageID #: 190
"bear the fonnidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." See Friends ofthe Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,190 (2000). Although the defendants may eventually be able to meet this burden, the facts are not sufficiently developed to make a final decision on injunctive relief. At this point, defendants' voluntary decision to stop implementing the policy does not prevent the certification of a class under Rule 23(b)(2).
C. Certification Under Rule 23(b)(3) A class may also be certified under Rule 23(b)(3). This provision pennits certification if"the questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and "a class action is superior to other available methods for the fair and efficient adjudication ofthe controversy." Fed. R. Civ. P. 23(b)(3). Defendants do not contest that common questions of fact - what the JDC's policy was - and common questions oflaw - whether the policy was constitutional - predominate in this case. They suggest that a class action is not a superior vehicle for the litigation, because no additional plaintiffs or potential plaintiffs have come forward to litigate these issues. The absence of additional plaintiffs suggests that the individual stakes are too low for many plaintiffs to come forward on their own, and thus that there is a strong interest in having the common issues detennined in a class action. See Charles A. Wright, Arthur R. Miller, Mary K. Kane, Federal Civil Practice & Procedure, § 1780 at 536-65 (2d ed. 1986). A class will also be certified under Rule 23(b)(3).
D. Problems of Certification Under Both Rule 23(b)(2) and Rule 23(b)(3) When a class is certified under both Rule 23(b)(2) and Rule 23(b)(3), there is a danger that class members who opt out of the class will bring separate actions seeking injunctive relief that is different than the injunctive relief awarded in the class action. See DeBoer, 64 F.3d at 1775. To prevent this problem, the Eighth Circuit has previously upheld a district court's decision not to certify a class under Rule 23(b)(3), which pennits class members to opt out, when a class could be certified under Rule 23(b)(2), which does not pennit opting out. Id. That approach, however, is also problematic, because it may prevent class members who are entitled to seek money damages from
6

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 7 of 9 PageID #: 191
receiving personal notice and an opportunity to opt out. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 845-46 (1999) (emphasizing the importance of these rights).
A better solution to the problem is divided certification. Under this approach, the district court certifies the injunctive aspects of a suit under Rule 23(b)(2) and the damages aspects under Rule 23(b)(3). See Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894,898 (7th Cir. 1999) (suggesting this method to the district court on remand); Lemon v. International Union of Operating Engineers, 216 F.3d 577 (7th Cir. 2000) (suggesting three options for class certification where both injunctive and monetary relief is sought by plaintiff). The injunctive relief, if any, that is awarded, binds all members ofthe class, while individual members who opt out are free to pursue their own claims for damages. Because the money damages sought in this case are not merely incidental, see Allison v. Citgo Petroleum Corp., 151 F.3d402, 411-16 (5th CiT. 1998), and because this method ofbifurcation furthers the purposes ofboth Rule 23(b)(2) and Rule 23(b)(3), the Court will certify a separate class for injunctive relief and a separate class for money damages. Of course, the membership in these classes will, at the outset, be identical. It will change if individual class members exercise their rights to opt out.
E. Scope of the Classes The information presented so far does not support as broad a class as plaintiff seeks to have certified. The class proposed by plaintiff would include minors taken into the custody of the JDC between November 1, 1997 and November 1, 2000. The information presented in connection with the Motion for Class Certification only supports classes of persons who, as minors, were taken into the custody ofthe JDC from June 1,1999 through September 14,1999. Although it appears that the JDC policy regarding religious beliefs' questioning may have been in existence for a longer period of time than the strip searching policy, the record at this point does not support the lengthy time frame suggested by plaintiff. But subsequent discovery may establish a basis for expanding the class period.
7

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 8 of 9 PageID #: 192
CONCLUSION The evidence before the Court supports the certification oftwo classes ofplaintiffs. At the outset, both classes will be comprised of: all persons who, when they under the age of eighteen years old, were charged with minor offenses and were, pursuant to JDC policy, strip searched and/or subjected to questioning about theirreligious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999. The first class will be comprised of all such persons seeking injunctive relief. The second class will be comprised ofall such persons seeking compensatory and/or punitive damages. The term "minor offenses" is defined as petty theft, liquor violations, being a runaway and curfew violations. The plaintiff shall prepare a form of notice to members of the second class that complies with the requirements of Rule 23(c)(2) ofthe Federal Rules of Civil Procedure, and file the proposed notice with the Court in accordance with the Order below. Accordingly, IT IS ORDERED:
(1) that the Motion for Class Certification, Doc. 25, is granted.
(2) that, pursuant to Federal Rule of Civil Procedure 23(b)(2), a class is certified of all persons seeking injunctive relief in this action who, when they under the age of eighteen years old, were charged with minor offenses and were, pursuant to IDC policy, strip searched and/or SUbjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999.
(3) that, pursuant to Federal Rule ofCivil Procedure 23(b)(3), a separate class is certified of all persons seeking compensatory and/or punitive damages in this action who, when they under the age ofeighteen years old, were charged with minor offenses and were, pursuant to JDC policy, strip searched and/or subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999.
(4) that plaintiff shall file a proposed form of notice to class members, for the class certified pursuant to Rule 23(b)(3), with the Court within 10 days from the date of service of this Order.
8

Case 4:00-cv-04202-LLP Document 42 Filed 03/20/02 Page 9 of 9 PageID #: 193

11 Dated thidQ d;y of March, 2002.

BY THE COURT:

*~~~

(d:wrence L. PIersol

ATTEST:

Chief Judge

BJOSyEP:H HjA~AS~, C~LE,fR~K/@' DiId.f~

----....

9

 
 Case 4:00-cv-04202-LLP Document 71 Filed 01/14/03 Page 1 of 2 PageID #: 289

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

FILED
JAN 1.t 2003

SOUTHERN DIVISION

****************************************************

*

JODIE SMOOK, Individually and on behalf *

of all other persons similarly situated,

*

ClY 00-4202

*

Plaintiffs,

*

*

-vs-

*

*

MINNEHAHA COUNTY, SOUTH

*

DAKOTA; JIM BANBURY, in his

*

individual capacity; TODD CHEEVER, *

as Director of Minnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

ORDER

OFFICERS,

*

*

Defendants.

*

*

****************************************************

Plaintiffs submitted a Motion to Amend the Protective Order, Doc. 66, and a Motion to

Expand Class Definition and to Postpone Class Exclusion Date, Doc. 67. The motions have been

fully briefed by all parties.

Plaintiffs request that the Protective Order entered on May 22, 2001, Doc. 24, be amended to include as persons entitled to have possession of confidential information "employees of document copying services and court reporting services utilized for purposes of this litigation and employees of other third-party companies essential for the administration of the class notice." The reason for this request is that plaintiffs find it necessary to employ document copying services to copy the voluminous documents produced by defeudants in discovery and to employ an outside company to update the three-year-old addresses of class members to mail the Class Notices. This request will be granted.

Case 4:00-cv-04202-LLP Document 71 Filed 01/14/03 Page 2 of 2 PageID #: 290

The motion to expand the class definition will be denied without prejudice to plaintiffs' right to submit an amended proposed definition of "minor offenses" following the depositions taken in January. The motion to postpone the class exclusion date will be granted pending the resolution of the potential amendment of the class definition. Plaintiffs are directed to be prepared to promptly send the Class Notices following the resolution of the request to amend the definition of "minor offenses." Accordingly,

IT IS ORDERED:

1. That plaintiffs' Motion to Amend Protective Order, Doc. 66, is granted and paragraph 2 of the protective order filed on May 22, 2001, Doc. 24, is amended to provide as follows: That any confidential infonnation related to juvenile detainees that is released to Plaintiffs counsel pursuant to any court order shall not be disclosed to the Plaintiff, her parents, or to any other person, with the exception of persons regularly employed or associated with Plaintiffs counsel whose assistance is required by Plaintiffs counsel in the preparation of this case, employees of document copying services and court reporting services utilized for purposes of this litigation, and employees of other third-party companies essential for the administration of class notice.

2. That plaintiffs' Motion to Expand Class Definition and to Postpone Class Exclusion Date, Doc. 67, is granted in part and denied in part as follows: (a) the motion to expand the class definition is denied without prejudice to plaintiffs' right to submit an amended proposed definition of "minor offenses" on or before January 24, 2003; and (b) the motion to postpone the
class exclusion date is granted and a new date will be established after the
issue of amending the proposed class definition is resolved by the Court.

Dated this B!Juay of January, 2003.

ATTEST:

Yz . JOSEJ)
BY:

HeAUASh, CL(l[tlJTUJ<7. ~)

(SEAL)

DEPUTY

BY THE COURT:

~ tfarollJ't

......

\[awrence L. PIersol

Chief Judge

2

 
 Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 1 of 16 PageID #: 326

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

._j

,oj

SOUTHERN DIVISION

• >';1
;.:.~

****************************************************

*

JODIE SMOOK, Individually and on behalf *

of all other persons similarly situated,

*

CN 00-4202

*

Plaintiffs,

*

*

-vs-

*

*

MINNEHAHA COUNTY, SOUTH

*

DAKOTA; JIM BANBURY, in his

*

individual capacity; TODD CHEEVER, *

as Director ofMinnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

MEMORANDUM OPINION AND ORDER

Defendants.

* *

* ****************************************************

Pending before the Court is a Motion to Amend Class Definition, Doc. 72, by Plaintiff Jodie Smook on behalf of herself and all others similarly situated. The Court previously certified two classes. Before the class notices were mailed, however, Plaintiff moved to amend the class definitions to include a significant additional number ofclass members. Pursuant to an oral direction ofthe Court, Plaintiffs counsel did not mail the class notices as previously ordered. For the reasons set forth below, the motion will be granted in part and denied in part.

BACKGROUND Plaintiff filed this action on November 1,2000 alleging that her civil rights were violated at the Minnehaha County Juvenile Detention Center ("JDC"), in Sioux Falls, South Dakota. According to the Complaint, Plaintiffand three ofher friends were arrested by Sioux Falls policemen for curfew violations on August 8, 1999. The four teenagers were taken to the JDC where, allegedly, they were

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 2 of 16 PageID #: 327
questioned about their religious beliefs and practices, individually ordered into a bathroom, and strip
searched. According to the Complaint, the mc had a policy of conducting strip searches ofminors,
even without probable cause to believe that the minors had weapons or contraband, as well as a policy of questioning juvenile detainees about their religious beliefs and practices.
In the Complaint, Plaintiffalleged that the requirements for a class action were satisfied. The definition of the class Plaintiff originally sought to certifY was "all minors who were charged with
minor offenses and were, pursuant to mc policy, strip searched and/or subjected to questioning
about their religious beliefs at the Minnehaha County Juvenile Detention Center between November 1,1997 and November 1, 2000." (Motion for Class Certification, Doc. 25, June 4, 2001.) Following the resolution of a discovery dispute, Plaintiff submitted a Supplement in Support of Motion for Class Certification (Doc. 39) on October 18,2001, proposing that two separate classes be certified based on the different life-span of the two allegedly nnconstitutional policies. The first proposed class was defined as: "all minors who were charged with minor offenses and were, pursuant to JDC policy, strip searched at the Minnehaha County Juvenile Detention Center between November 1, 1997 and November 1, 2000." (Doc. 39.) The second proposed class was defined as: "all minors who were charged with minor offenses and were, pursuant to JDC policy, subjected to questioning about private matters, including but not limited to questions about their religious beliefs and practices, at the Miunehaha County Juvenile Detention Center between November 1, 1997 and November 1,2000." (Id.) The phrase "minor offenses" proposed by plaintiff was defined as "petty theft, liquor violations, being a runaway and curfew violations." (Id.)
On March 20, 2002, the Court granted in part and denied in part Plaintiffs reqnest for class
certification. (Memorandum Opinion and Order, Doc. 42.) The Court certified two classes, but did so on a basis different than that proposed by Plaintiff. The first class certified by the Court was defined as "all persons seeking injunctive relief in this action who, when they under the age of eighteen years old, were charged with minor offenses and were, pursuant to JDC policy, strip searched and/or SUbjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999." (Id.) The second class
2

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 3 of 16 PageID #: 328
certified by the Court was defined as "al! persons seeking compensatory and/or punitive damages in this action who, when they under the age of eighteen years old, were charged with minor offenses and were, pursuant to JDC policy, strip searched andlor subjected to questioning about theirreligious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999." (Id.) Thus, the time period for both classes is from June 1, 1999 through September 14, 1999. As requested by Plaintiff, the term "minor offenses" was defined as "petty theft, liquor violations, being a runaway and curfew violations." (Id.)
At the time the class certification motion was decided the Court noted that "[tJhe infonnation presented in connection with the Motion for Class Certification only supports classes of persons
who, as minors, were taken into the custody of the mc from June 1, 1999 through September 14,
1999." (Doc. 42.) It was recognized that the record as it existed in March 2002, did not support the lengthy time frame suggested by Plaintiff. (kt) The Conrt further stated "[bJut subsequent discovery may establish a basis for expanding the class period." (Id.)
On November 19,2002, Plaintiffmoved to expand the class definition and postpone the class exclusion date. (Doc. 67.) After reviewing discovery materials, Plaintiff believed the class definition of "minor offenses" was too narrow and asked that the Court include the fol!owing offenses as minor offenses: "petty theft, liquor violations, being a runaway, curfew violations, unamenable, truancy, underage consumption, window peeking, misuse of phone, tobacco, driving while revoked, contempt of court-CHINS, contempt of court-delinquent, disturbance of school, damage to private property, damage to public property, false impersonation, delinquent probation violation, delinquent violation court order, CHINS probation violation, CHINS violation conrt order, unlawful occupancy, failure to appear, and disorderly conduct." (Doc. 67.) In her reply brief regarding the motion to expand the class definition, Plaintiff stated that depositions were scheduled for January 9 and 10, 2003 and she requested that she be allowed to file a supplemental reply brief fourteen days after those depositions to submit a proposed amended definition of minor offenses. (Doc. 70.) On January 14, 2003, the Court denied Plaintiffs request to expand the class definition ofminor offenses without prejUdice to her right to submit an amended proposed definition ofminor
3

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 4 of 16 PageID #: 329
offenses on or before January 24, 2003, following the depositions to be taken in January. (Order, Doc. 71.)
On January 24, 2003, Plaintiff filed a second Motion to Amend Class Definition, Doc. 72, seeking to expand the class by defining it as follows:
All individuals who, when under the age of eighteen years old, were arrested for or charged with non-felony offenses, and were strip searched at the Minnehaha County Juvenile Detention Center without particularized reasonable suspicion from November I, [1997]1 through the present andJorwere subjected to questioning about their religious beliefs at the Juvenile Detention Center from November 1, [1997]2 through September 14, 1999.
Plaintiff states that after the depositions of the current and fonner directors of thc IDC, two fonner IDC staff members, the current assistant director of the IDC and the arresting Sioux Falls police officer, "plaintiffs discovered that the strip search and religious questioning policies were broader in scope both in tenns of time frame and the number of juveniles who were subjected to such
policies." (Doc. 72.) In the present motion, Plaintiffproposes that the phrase "non-felony offenses"
replace the phrase "minor offenses" in the classes previously certified by the Court. The Court assumes Plaintiffintends to use the definition of"non-felony offenses" that was originallyproposed in her November 19, 2002 Motion to Expand Class Definition, Doc. 67.
In support of her motion, Plaintiffcontends that beginning at some point before November
1, 19973 and continuing until September 14, 1999, the IDC had a blanket policy to admit and strip search all juveniles who were brought to the IDC for any reason, without any individualized
lWhile Plaintiffs motion to amend, Doc. 72, refers to the beginning of the class period as November 1, 1998, in her reply brief, Plaintiffclarifies that the beginning ofthe class period should be November I, 1997. (Reply Brief, Doc. 76, p. 4, n.!.) The parties agree that the statute oflimitations is three years pursuant to SDCL § 15-2-15.2. The complaint was filed on November I, 2000. Thus, the Court will consider the motion to amend with a beginning date ofthe class period being November 1,1997.
'See note 1, supra. 'See note 1, supra.
4

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 5 of 16 PageID #: 330
determination of probable cause. The mc policy was changed as of September 14, 1999, in two
respects. The first change was to install screens in the shower area to block from view the midsections ofjuveniles while they were taking showers. A visual search of the juvenile's body was conducted before and after the shower. The second change applied to minors detained for certain minor offenses such as curfew, petty theft and liquor violations. If those minors were not admitted
to the mc, they would not be strip-searched and required to shower. If they were admitted,
however, they were strip-searched and required to shower in the same fashion as all other minors.
Due to the passage of a state law, the mc changed its policy again at some time in the year 2000 to
prohibit juveniles from being strip-searched if they were detained solely for a curfew violation, unless there was probable cause to do so. See SDCL § 26-11-1.1.
Plaintifffurther contends that the depositions in January 2003 revealed that the mc's blanket
strip search policy was in effect for years prior to June 1, 1999, the date Plaintifforiginally believed was the effective date of the policy. Rather than the policy being adopted in June 1999, Plaintiff asserts that Defendant James Banbury, former Director ofthe JDC, issued a directive in June 1999
to require JDC staff to adhere to the policy of strip searching all juveniles admitted to the mc, which policy was already in effect but not being followed by the mc staff at that time. It is Plaintiff's assertion that the mc currently continues to strip search all juveniles who are admitted to the mc, without an individualized determination ofprobable cause and without considering the
severity of the charged offense, in violation ofjuveniles' Fourth Amendment rights.
Regarding the policy of questioning juveniles about their religious preference, Plaintiff contends Banbury testified that policy has been in effect since the JDC was opened over 30 years ago. Thus, Plaintiff seeks to expand the certified class to those juveniles who were subjected to religious questioning from November 1, 19974 to September 14,1999, the date the JDC ceased such questioning.
'See note 1, supra. 5

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 6 of 16 PageID #: 331
Defendants oppose the motion to expand the classes based upon statute of limitations grounds. They concede that the statute of limitations was tolled on behalf of all putative members of the class as originally proposed by Plaintiff until class certification was denied. The statute of limitations, however, is not tolled for any potential class members not included in the original proposed class definition, which was limited in part to minors that were charged with minor offenses. The definition of"minor offenses" only included petty theft, liquor violations, being a runaway and curfew violations.5 Moreover, Defendants contend that the statute of limitations was tolled for putative class members only until the Court ruled on the motion for class certification, which was issued on March 20, 2002. Once the class certification decision was issued, argue Defendants, the statute oflimitations began to run again as to claims by all of the putative class members who were not included in the certified class. In addition, Defendants contend that the Plaintiff s current motion to expand the class does not have the same tolling effect as the original motion to certify a class. Thus, according to Defendants, the statute oflimitations bars any claims that accrued more than three years prior to the date upon which this Court may grant Plaintiffs pending motion to expand the class.
In response to Defendants' opposition, Plaintiff contends that the Court's March 20, 2002 class certification order was merely preliminary and, pursuant to Federal Rule of Civil Procedure 23(c)(I), the order was conditional and could be altered or amended before the decision on the merits. Affirmative defenses, such as the statute of limitations, are not to be considered when deciding the issue of class certification. Even ifthe Court were to consider the statute oflimitations' issue, Plaintiffasserts that none 0 fthe claims ofthe members ofthe proposed amended class is time-
5The Plaintiffs contend in their reply brief, Doc. 76, that the Defendants do not argue that the complaint does not cover juveniles charged with "non-felony offenses" as included in the proposed amended class definition and that even if they did, the Complaint's reference to "minor offenses" reasonably includes "non-felony offenses." Contrary to Plaintiffs' characterization of Defendants' argument, Defendants do argue in their opposition brief that if one "erroneously assumed" that the phrase "minor offenses" in the complaint "somehow encompassed the phrase 'all non-felony offenses,'" such that the statute oflimitations would be tolled for all non-felony offenses from the filing of the Complaint, the clock started ticking again when Plaintiffs filed the motion for class certification specifically defining "minor offenses" to include the specific offenses of petty theft, liquor violations, being a runaway and curfew violations. (Defendants' Opposition Brief, Doc. 75, at 5.)
6

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 7 of 16 PageID #: 332
barred because the Court did not deny class certification and it only preliminarily defined the class. The "no piggyback" rule cited by Defendants is a red-herring, asserts Plaintiff, because Plaintiffis not attempting to file a second class action for which class certification has been denied in a prior action. Plaintiff further argues that even if the Defendants' arguments are accepted, the statute of limitations would have been tolled from November 1,2000 (filing of the Complaint) to March 20, 2002 (Certification Order), for a total of505 days and the time frame ofthe previously defined class would be timely if they accrued on or after September 6,1998.
DECISION
South Dakota's statute oflimitations applies in this § 1983 action. See Wilson v. Garcia, 471 U.S. 261, 268 (1985) (explaining that federal courts apply the most analogous state statute of limitations to determine the statutory period for bringing a § 1983 action). The law in South Dakota is that "[alny action brought under the federal civil rights statute may be commenced only within three years after the alleged constitutional deprivation has occurred." SDCL § 15-2-15.2. Thus, Plaintiffs claims, and those ofthe class members, are subject to a three-year limitations period. "It is axiomatic that no class action may proceed on behalf of class members whose claims are barred by the applicable statute oflimitations." Schmidt v. Interstate Fed. Sav. and Loan Ass'n, 74 F.R.D. 423,428 (D.D.C. 1977). Thus, "the applicable statute oflimitations marks the outer boundary for class membership." Id.
Plaintiff contends that the Court should not evaluate the statute of limitations issue as it relates to potential class members at the time it considers class certification. The cases cited by Plaintiff for this proposition are Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974),
International Woodworkers ofAm. v. Chesapeake BayPlvwood Com., 659F.2d 1259, 1270 (4th Cir. 1981), and Healy v. Loeb Rhoades & Co., 99 F.R.D. 540, 543 (N.D. Ill. 1983). These cases are
distinguishable from the present case. The Eisen court held that a court may not evaluate the merits of a suit to determine whether it may be maintained as a class action. 417 U.S. at 177. That case did not, however, address the situation of considering statute oflimitations in defining the class. In International Woodworkers, the court noted that in determining whether a class should be certified,
7

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 8 of 16 PageID #: 333
the district court generally refuses to consider the impact of a statute ofiimitations' defense as to the "potential representative's case." 659 F.2d at 1270. Considering the merits of the potential representative's case is wholly different from determining the proper time period for defining the class. See Schmidt, 74 F.R.D. at 428 (explaining that "the applicable statute of limitations marks the outer boundary for class membership."). The remaining case, Healy, does not support Plaintiff s claim because that court specifically noted that the defendants did not argue that the limitation periods were relevant to establishing a cut-off date for class membership. 99 F.R.D. at 543. In this case, Defendants have asserted that the statute of limitations does set a cut-off date for class membership. Thus, the Court must consider the statute of limitations as it relates to class membership.
There are two separate, but interrelated, issues in the Plaintiffs request to expand the class definition. The first issue is whether the current time-frame ofJune 1, 1999 through September 14, 1999, should be expanded to November 1, 1997 through the present for strip searching and to November 1, 1997 to September 14, 1999 for religious questioning. The second issue is whether the class should be expanded from minors charged with "minor offenses" to minors charged with "non-felony offenses."
Addressing federal class action procedure, the Supreme Court held that "the commencement of a class action suspends the applicable statute oflimitations as to all asserted members ofthe class who would have been parties had the suit been permitted to continue as a class action." American Pipe and Const. Co v. Utah, 414 U.S. 538, 554 (1974); See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 353-54 (1983) (explaining that the statute of limitations is tolled until class certification is denied and "[a]t that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action."). One of the primary reasons for tolling the statute of limitations is that without the rule, "[p]otential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable." American Pipe, 414 U.S. at 553. The tolling rule is consistent with the purpose ofa statute oflimitations because the commencement of the purported class action notifies the defendants of both the substantive
8

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 9 of 16 PageID #: 334
claims and also the approximate number and general identities of the potential plaintiffs asserting those claims. See id. at 554-56. The limitations period is tolled during the entire time the "individual may have been embraced within the not-yet-certified class." Ganousis v. E.1- du Pont de Nemours & Co., 803 F.Supp. 149, 154 (N.D. Ill. 1992) (emphasis in original).
If a definitive decision is made denying class certification to some or all of the class members, the statute oflimitations begins to run again as to those members not certified. See Crown & Cork, 462 U.S. at 354. Federal courts have an option, however, to make a preliminary ruling on class certification that allows for amendment ofthat ruling ifsubsequent discovery demonstrates the class should be defined differently than the preliminary definition. See Fed.R.Civ.Pro. 23(c)(1). Rule 23(c)(1) provides that a ruling on a class certification "may be conditional, and may be altered or amended before the decision on the merits." Fed.R.Civ.P.23(c)(1).
It is clear based upon the American Pipe tolling rule, that the three-year statute oflimitations was tolled beginning on November 1, 2000 for any claims that accrued as 0 fNovember 1, 1997. The question then becomes whether that tolling ended when the Court issued its ruling on class certification limiting the class period to June 1, 1999 through September 14, 1999. Ifthe statute of limitations continued to be tolled following the Court's class certification ruling, the Court could expand the class period if the record supported such an expansion.
At the time class certification was denied for the entire time period requested by Plaintiff, the Court clearly stated the decision was not final and that discovery may provide a basis for expanding the class. (Order, Doc. 42.) The Court's certification was thus conditional as provided by Rule 23(c)(1) of the Federal Rules of Civil Procedure. See Genden v. Merrill Lvnch. Pierce, Fenner & Smith, 114 F.R.D. 48, 54 (S.D.N.Y. 1987) (holding that a certification ruling was conditional under Rule 23(c)(1) because the Court certifying the class expressed willingness to reconsider after merits discovery has been conducted). There was no definitive decision as to class certification for the time period requested by Plaintiff. Because the certification ruling was not definitive or final, the Court does not find that the tolling of the statute oflimitations ended as to the
9

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 10 of 16 PageID #: 335
purported class when the Court issued its certification ruling on March 20, 2002. Thus, there is no statute oflimitations bar to expanding the time-frame of the classes as certified on March 20, 2002.
The next question is whether the record supports expanding the class period. As to the strip searching policy, Plaintiff seeks to expand the class period to November 1, 1997 to the present. Regarding the policy of questioning minors about their religious views, Plaintiffseeks to expand the class period to November 1, 1997 and ending on September 14,1999, when the practice ofreligious questioning was terminated.
The policy in effect at the time Plaintiff was strip searched required that all juveniles who
were brought to the mc for any reason were to be admitted and strip searched. That policy changed
somewhat on September 14, 1999, as Plaintiff acknowledged in a reply brief on the certification issue. (Reply Brief, Doc. 31, July 29,2001.) After September 14, 1999, and apparently continuing today, juveniles charged with minor offenses such as petty theft, liquor violations, runaways and curfew violations are no longer immediately admitted to the JDC. Rather, such minors are subjected to an inventory search and held in a waiting area for two hours. If, after two hours, the JDC staff is unable to contact the minor's parents or the parents refuse to pick up the minor, the minor is
admitted to the JDC and undergoes a strip search. Thus, ifthe minor is not picked up from the mc,
he or she is subjected to the same strip searching policy in effect when Plaintiff was strip searched in August 1999.
The current beginning date for purposes of class membership is June 1, 1999, which is the date Plaintifforiginally believed the strip-searching policy began. After taking several depositions in January 2003, Plaintiff now contends that the policy ofstrip searching all juveniles was in effect
for years prior to June I, 1999. It was in June 1999 that former mc Director Banbury issued a
directive instructing all staff to comply with the strip-searching policy as to all juveniles admitted to the JDC because Banbury had learned that the staffwas not always complying with that policy. Defendants do not challenge Plaintiffs asse11ion that the strip-searching policy was in effect for years prior to Jnne 1, 1999. As explained above, there is no statute of limitations bar to expanding
10

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 11 of 16 PageID #: 336
the class back to November I, 1997, three years prior to the filing of this action. Thus, because the record now supports an earlier beginning date than currently certified, the beginning of the class period will be November I, 1997 as to the strip-searching policy.
The cut-off date for the classes currently certified is September 14, 1999, the date of the policy change explained above. The Defendants do not provide a persuasive reason for not extending the class period to the present and to include future members as to the strip-searching policy. After the policy change effective September 14, 1999,juveniles continue to be strip searched without probable cause upon their admission to the mc for non-felony charges. The primary change is that juveniles charged with the offenses of petty theft, liquor violations, being a runaway and curfew violations are not strip searched if they are picked up by their parents within two hours of being taken to the mc. In addition, at some point during the year 2000, the mc's policy was changed again to comply with SDCL § 26-11-1.1, to prohibit, without probable cause, strip searches of juveniles admitted to the mc on the sole charge of a curfew violation. The class period will extend to the present and will include future members. See Moore's Federal Practice ~ 23 .21 [2] (3d ed. 2002) (explaining that "a class may include future members as long as the court would be able to determine, at any given time, whether a particular individual is then a member ofthe class."). The Court will establish a cut-off date as this litigation progresses.
The record now also demonstrates that the policy of questioning juveniles about their religious beliefs was in effect for years prior to June I, 1999. Thus, similar to the class period regarding the strip-searching policy, the classes involving minors subj ecting to questioning about their religious beliefs will be expanded to begin November 1, 1997. Contrary to the strip-searching class, however, the class period for minors subjected to questioning about their religious beliefs will end on September 14, 1999, because Plaintiff continues to believe the policy ended on that date.
The second issue regarding class expansion relates to the definition of"minor offenses" and whether the statute oflimitations was tolled for minors charged with offenses other than petty theft, liquor violations, being a runaway and curfew violations. The Court finds that the statute of
11

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 12 of 16 PageID #: 337
limitations was tolled for certain periods oftime for minors charged with offenses other than "minor offenses," as defined by Plaintiff in her Motion for Class Certification, Doc. 25, filed on June 4, 2001.
In her Complaint filed November 1, 2000, Plaintiff sought to define the class members as "others similarly situated who have been arrested for alleged violations of curfew laws or other minor offenses and detained at the Minnehaha County Detention Center and strip searched (Count I) and/or questioned about their religious beliefs or practices (Count II)." (Complaint, Doc. 1, , 8.) The term "other minor offenses" was not defined in the Complaint. Rather, Plaintiffdefined "minor offenses" in her Motion for Class Certification filed on June 4, 2001, as "petty theft, liquor violations, being a mnaway and curfew violations." (Doc. 25.) This definition was adopted by the Court in its initial class certification mling. (Doc. 42.)
Although the Court clearly stated in the class certification Order, Doc. 42, that Plaintiffcould move to expand the class based upon the class period, the Court did not indicate a willingness to expand the class based upon the types of offenses for which the minors were charged. Thus, the portion of the class certification mling based upon the types of offenses for which minors were charged was not conditional under Rule 23(c)(I) and the statute oflimitations as to offenses other than petty theft, liquor violations, being a mnaway and curfew violations was not tolled due to a conditional mling.
Moreover, the tolling provision in American Pipe provides that the statute of limitations is tolled for "all asserted members ofthe class who wonld have been parties had the suit been permitted to continue as a class action." 414 U.S. at 554 (emphasis added); see Crown & Cork, (reconfirming that "[0]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied."). It is possible that the entire list of offenses currently asserted by Plaintifffalls within the definition of "other minor offenses" as alleged in the Complaint, such that the statute oflimitations may have been tolled for the seven-month time period from the filing ofthe Complaint to the date the Motion for Class Certification Order, Doc. 25, was
12

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 13 of 16 PageID #: 338
filed. When the term "minor offenses" was defined in the class certification motion, however, that tolling would have ended and the statute oflimitations began to run again for those minors charged with offenses other than "petty theft, liquor violations, being a runaway and curfew violations." See Ganousis, 803 F.Supp. at 154-56.
The Northern District of Illinois was faced with a situation similar to that posed by the present case. See id. In Ganousis, the parties seeking to be included in the certified class arguably were members of the putative class as set forth in the complaint, but were clearly excluded as class members based upon the class representative's definition of the putative class filed after the complaint. See id. The Court concludes that similar to the parties seeking to be included in the certified class in Ganousis, the American Pipe tolling halted as to any potential class members charged with offenses other than petty theft, liquor violations, being a runaway and curfew violations when Plaintiff filed her class certification motion on June 4, 2001. The tolling arguably recommenced when Plaintiff filed the initial Motion to Expand the Class on November 19, 2002 (Doc. 67) to include the other offenses, and continues to the present. From June 4, 2001 to November 19, 2002,532 days elapsed. Thus, the appropriate class period for juveniles arrested for non-felony offenses other than petty theft, liquor violations, being a runaway and curfew violation, and strip searched at the JDC begins 532 days after November I, 1997, which is April 16, 1999. As explained above regarding expanding the class period, the class as to strip searching will continue to the present and include future members. Regarding the juveniles charged with non-felony offenses who were subjected to questioning about their religious beliefs, the beginning class period will be April 16, 1999 and the cut-off date will be September 14, 1999, which is the date Plaintiff concedes the JDC discontinued such questioning.
As explained in the Court's first certification ruling, there must be a certified class for the claims involving compensatory damages that is separate from the claims involving injunctive relief. Because there are now separate time periods for juveniles subjected to strip searching from those subjected to religious questioning, additional classes must be certified.
13

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 14 of 16 PageID #: 339
CONCLUSION As a result ofthe above rulings, four classes will be certified by the Court. There will be two classes involving minors who were strip searched, one for injunctive reliefand one for compensatory and punitive damages. Minors who were strip searched and were charged with the four minor offenses as defined in the Court's prior certification order, which includes petty theft, liquor violations, being a runaway and curfew violations, will be members of the classes if they were charged from November 1, 1997 to a date in the future to be set by the Court. The classes will also include minors who were strip searched from April 16, 1999 to a date in the future to be set by the Court and were charged with non-felony offenses, which are defined as unamenable, truancy, window peeking, tobacco, driving while revoked, contempt of court-CHINS, contempt of courtdelinquent, disturbance of school, damage to private property, damage to public property, false impersonation, delinquent probation violation, delinquent violation court order, CHINS probation violation, CHINS violation court order, unlawful occupancy, failure to appear and disorderly conduct.6
There will be an additional two classes for those minors seeking injunctive relief and those seeking compensatory and punitive damages as a result of JDC's policy of questioning them about their religious beliefs. The same definitions of offenses and beginning time periods will apply to these classes as to the classes involving strip searching described above, but the ending date for the classes will be September 14,1999. Accordingly,
IT IS ORDERED:
1. That the Plaintiffs Motion to Amend Class Definition, Doc. 72, is granted in part and denied in part as explained in this Order.
'The definition of non-felony offenses will not include "misuse of phone" as requested by Plaintiffbecause there has been no showing that misuse ofphone is an offense for which a minor would be taken to the JDC and subjected to the strip searching policy at issue in this case. Rather misuse of phone appears to be a violation of the JOe's internal rules for which a minor would be punished after admission to the JDC and being subjected to the strip searching policy. Thus, a minor accused of misuse of phone is not similarly situated to the Plaintiff in this action.
14

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 15 of 16 PageID #: 340
2. That, pursuant to Federal Rule ofCivil Procedure 23(b)(2), a class is certified of all persons seeking injunctive relief in this action who, when they under the age ofeighteen years, were charged with minor offenses from November 1, 1997 to a date to be set by the Court or were charged with non-felony offenses from April 16, 1999 to a date to be set by the Court, and were,
pursuant to mc policy, strip searched at the Minnehaha County Juvenile
Detention Center.
3. That, pursuant to Federal Rule of Civil Procedure 23(b)(3), a second class is certified of all persons seeking compensatory and punitive damages in this action who, when they under the age of eighteen years, were charged with minor offenses from November 1, 1997 to a date to be set by the Court or were charged with non-felony offenses from April 16, 1999 to a date to be set
by the Court, and were, pursuant to mc policy, strip searched at the
Minnehaha County Juvenile Detention Center.
4. That, pursuant to Federal Rule of Civil Procedure 23(b)(2), a third class is certified of all persons seeking injunctive reliefin this action who, when they under the age of eighteen years, were charged with minor offenses from November 1,1997 to September 14,1999, or were charged with non-felony offenses from April 16, 1999 to September 14, 1999, and were, pursuant to JDC policy, subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center.
5. That, pursuant to Federal Rule of Civil Procedure 23(b)(3), a fourth class is certified of all persons seeking compensatory and punitive damages in this action who, when they under the age of eighteen years, were charged with minor offenses from November 1, 1997 to September 14, 1999 or were charged with non-felony offenses from April 16, 1999 to September 14,
1999, and were, pursuant to mc policy, subj ected to questioning about their
religious beliefs at the Minnehaha County Juvenile Detention Center.
6. That the term "minor offenses" in all four certified classes includes the offenses of petty theft, liquor violations, being a runaway and curfew violations. The term "non-felony offenses" in all four certified classes includes the offenses of unamenable, truancy, window peeking, tobacco, driving while revoked, contempt of court-CHINS, contempt of courtdelinquent, disturbance of school, damage to private property, damage to public property, false impersonation, delinquent probation violation, delinquent violation court order, CHINS probation violation, CHINS violation court order, unlawful occupancy, failure to appear and disorderly conduct.
15

Case 4:00-cv-04202-LLP Document 78 Filed 06/06/03 Page 16 of 16 PageID #: 341
7. That the parties proceed diligently and expeditiously to conduct any additional discovery that must be completed due to the expansion ofthe time period of the classes and the inclusion of additional offenses, with all such discovery to be completed on or before October 21,2003.
8. That, on or before September 29, 2003, Plaintiff shall file a proposed form of notice to class members, for the two classes certified pursuant to Rule 23(b)(3).
Dated this Id~~ day ofJune, 2003.
BY THE COURT:

ATTEST: JOSEPH HAAS, CLERK

awrence 1. Piersol Chief Judge

16

 
 Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 1 of 19 PageID #: 903
FILED

UNITED STATES DISTRICT COURT

SEP 27 2004

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

****************************************************

JODIE SMOOK, Individually and on behalf **

of all other persons similarly situated,

*

CIV 00-4202

*

Plaintiffs,

*

*

-vs-

*

*

MINNEHAHA COUNTY, SOUTH

*

DAKOTA; JIM BANBURY, in his

*

individual capacity; TODD CHEEVER, *

as Director ofMinnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

MEMORANDUM OPINION AND ORDER

*

Defendants.

*

*

****************************************************

Plaintifffiled a Motion for Partial Summary Judgment, Doc. 91, seeking summaryjudgment

on the Fourth Amendment claims in this action. Defendants filed a Motion for Summary Judgment,

Doc. 110, seeking sun1ll1aryjudgment on all ofthe claims in this action. Plaintiffalso filed a Motion

to Strike the Defendant's Expert Report, Doc. 101. The motions have been fully briefed and the

Court does not find that oral argument is necessary to decide the pending motions. For the reasons

set forth below, the Court will grant Plaintiff's motion, grant Defendants' motion as to the claims

of the third and fourth classes certified by the Court and deny Defendants' motion as to the claims

of the first and second classes certified by the Court. The motion to strike will be denied.

BACKGROUND
This is a class action involving allegations that Plaintiff Jodie Smook and the other class members were deprived of their constitutional rights by being strip searched and questioned about theirreligious beliefs and practices, pursuant to institution policies, when admitted to the Minnehaha

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 2 of 19 PageID #: 904
County Juvenile Detention Center ("JDC") for minor offenses in 1999. Smook asserts that she and three ofher friends were arrested by Sioux FaIls policemen for curfew violations on August 8, 1999. The four teenagers were taken to the JDC where they were questioned about their religious beliefs and practices, individually ordered into a bathroom, and strip searched.
The IDC had a policy ofconducting visual strip searches ofall minors regardless ofthe type ofoffense they were arrested for or whether there was reason to believe that the minors had weapons or contraband. The JDC also had a policy of questioning juvenile detainees about their religious beliefs fu'1d practices. The written strip search policy in effect on August 9, 1999, when Plaintiffwas arrested, required a IDC staff person to escort the juvenile to the JDC's shower room, and instruct thejuvenile to remove all ofhis or her clothing, including undergarments. The JDC staffperson then conducted a thorough visual inspection ofthe juvenile's naked body. The juvenile was required to comb through and, ifnecessary, lift his or her hair and to tum around. The juvenile was required to take a shower in full view of the JDC staff. A complete search ofthe juvenile'S clothing was also conducted by JDe staff. A IDC unifonn was supplied to the juvenile after showering.
Before Plaintiffwas taken to the JDC an expansion project was completed to add a new nonsecure area to the JDC. Before the expansion project was completed, all minors were admitted to the secure area of the JDC. All minors brought to the JDC before the expansion project were required to take showers and the strip searches described above were conducte{! on all minors. After the expansion project was completed all minors entered the facility through the non-secure area. Although the written policies regarding strip searches were not changed, some of the JDC officers modified the strip search procedures for those minors not being admitted to the secure area of the IDC.
After the expansion project, some ofthe strip searches were conducted in a unisex bathroom in the new, non-secure area. A toilet, sink and shower stall were in the bathroom. The shower stall consisted of a brick wall from ceiling to floor, with an open entrance to the stall. Ifthe minor was going to be at the JDC for less than approximately 15 minutes to one-halfhour, some IDC officers
2

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 3 of 19 PageID #: 905
did not require that minor to disrobe. Some JDC officers continued to search every minor that entered the JDC, even ifthe minor was only going to be there for five to ten minutes. If the minor was going to be in the non-secure area for over 15 minutes to one-half hour, but not going to be detained at the JDC, the minor was required to disrobe and be visually searched by a same-sex JDC officer. At least some of the JDC officers allowed these minors to keep their undergarments on while the visual search ofthe minor's body was conducted. The JDC staff would also search the minor's clothing before returning it to the minor. After both the visual search of the minor's body and the clothing search, the minor was allowed to put on his or her clothes. All searches in the unisex bathroom were conducted by one JDC officer of the same sex as the minor. There were no windows in the bathroom where the strip searches were conducted.
If a minor was going to be admitted to the secure area of the JDC, however, that minor was required to shower and subjected to the strip search procedure described above while showering. Thus, those minors admitted to the JDC even after the expansion proj ect was complete were visually searched while naked by a IDC officer. The majority ofthe strip searches ofminors being admitted to the JDC were conducted in the secure area ofthe JDC, which was separated into a girls' and boys' wing. Those separate wings contained shower areas that had multiple shower stalls separated by brick walls. The front ofthe shower was open to allow JDC staffto view the minors as they were showering.
On September 14, 1999, revised written policies were issued regarding the searching of juveniles brought to the IDC for a minor offense, such as curfew, petty theft, or liquor violations, or as a CHINS child, which is an acronym for children in need of supervision. Rather than being searched soon after arrival at the JDC, these juveniles were given a two-hour grace period to allow JDC staffto determine whether an appropriate adult was available and willing to take custody ofthe juvenile before a strip search was conducted. IfIDC staffcould not reach the juvenile's parents or the parents refused to take custody within two hours ofbeing brought to the JDC, that juvenile would be subjected to the same strip search procedure as all other juveniles admitted to the JDe, which included showering and being visually searched while naked.
3

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 4 of 19 PageID #: 906
In September 1999 a change was also made to the procedure for showering juveniles and observing them. A screen was installed in the shower area, which allowed the JDC staffto view the juvenile only from the neck up and the knees down. Consistent with the JDC's past procedure, the juvenile's entire naked body continued to be observed by JDC staff before the juvenile entered the shower. The only exceptions for the showering requirement were ifthe juvenile was too intoxicated to shower, ifmedical reasons prohibited showering, or ifthejuvenile's behavior was such that taking a shower would endanger the juvenile or staff.
Plaintiff Smook was taken to the JDC on August 9, 1999, for a curfew violation, when the above-described written strip search policywas in effect, but after the time when at least some ofthe JDC officers did not require the minors to remove their undergarments, despite the existence ofthe written strip search policy. Plaintiff was one ofthose minors who was not required to remove her underwear and bra during the search. She was required to remove her shirt, shorts and sandals in a bathroom in the presence ofa female JDC officer. When she was wearing her underwear and bra, she was visually inspected by a female JDC officer. The officer informed Plaintiff that she was being searched for drugs, drug paraphernalia and weapons. The JDC officer also touched Plaintiff's hair and toes while searching those areas of Plaintiff's body.
The Court certified four classes in this action, distinguished upon the claims and relief sought. The four certified classes are described as follows:
1. All persons seeking injunctive relief in this action who, when they under the age of eighteen years, were charged with minor offenses from November 1, 1997 to a date to be set by the Court or were charged with non-felony offenses from April 16, 1999 to a date to be set by the Court, and were, pursuant to IDC policy, strip searched at the Miunehaha County Juvenile Detention Center.
2. All persons seeking compensatory and punitive damages in this action who, when they under the age ofeighteen years, were charged with minor offenses from November 1, 1997 to a date to be set by the Court or were charged with non-felony offenses from Apri116, 1999 to a date to be set by the Court, and were, pursuant to JDC policy, strip searched at the Minnehaha County Juvenile Detention Center.
4

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 5 of 19 PageID #: 907
3. All persons seeking injunctive relief in this action who, when they under the age of eighteen years, were charged with minor offenses from November 1,1997 to September 14, 1999, or were charged with non-felony offenses from April 16, 1999 to September 14, 1999, and were, pursuant to JDC policy, subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center.
4. All persons seeking compensatory and punitive damages in this action who, when they under the age ofeighteen years, were charged with minor offenses from November 1, 1997 to September 14, 1999 or were charged with non-felony offenses from April 16, 1999 to September 14, 1999, and were, pursuant to JDC policy, subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center.
The term "minor offenses" in all four certified classes includes the offenses of petty theft, liquor violations, being a runaway and curfew violations. The term "non-felony offenses" in all four certified classes includes the offenses of unamenable, truancy, window peeking, tobacco, driving while revoked, contempt of court-CHINS, contempt of court-delinquent, disturbance of school, damage to private property, damage to public property, false impersonation, delinquent probation violation, delinquent violation court order, CHINS probation violation, CHINS violation court order, unlawful occupancy, failure to appear and disorderly conduct.
DISCUSSION A. Motion to Strike Expert Report
Plaintiff moved to strike Defendants' expert's report as an improper legal conclusion. The report contains some legal conclusions, but it was considered by the Court for purposes of the summaryjudgment motion. See Johnson Group, Inc. v. Beecham, Inc., 952 F.2d 1005, 1007 (8th Cir. 1991) (holding that although the challenged expert's testimony "may have included inappropriate legal conclusions, we cannot conclude that the district court abused its discretion in admitting the testimony) (citing Hurst v. United States, 882 F.2d 306,311 (8lb Cif. 1989) ("[a] trial court should exclude an expert opinion only if it is so fundamentally unsupported that it cannot help the factfinder."». As further explained below, however, the Court rejects that portion of Dr. Kehoe's report that opines that the challenged JDC policies and procedures are "neither unconstitutional nor unlawful." (Doc. 90.)
5

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 6 of 19 PageID #: 908
B. Motions for Summary Judgment Summary judgment is appropriate if the moving party establishes that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). In reviewing a motion 'tor summaryjudgment, this Court views the evidence in a light most favorable to the non-
moving party. See Adickes v. s.H. Kress & Co., 398 U.S. 144, 158-59 (1970). "Once the motion
for summary judgment is made and supported, it places an affirmative burden on the non-moving partyto go beyond the pleadings and 'by affidavit or otherwise' designate 'specific facts showing that there is a genuine issue for trial.'" Commercial Union Ins, Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (quoting Fed.RCiv.P. 56(e».
1. Strip Searches In considering a strip search policy at all federal Bureau of Prison facilities, the Supreme Court established a balancing test courts are to use in determining whether a search is unreasonable: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing ofthe need for the particular search against the invasion ofpersonal rights that the search entails. Courts must consider the scope ofthe particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559 (1979).
In 1985, the Eighth Circuit Court of Appeals held that a district court erred in denying the plaintiff's motion for judgment notwithstanding the verdict where plaintiffhad been subjected to a visual strip search after his arrest on a minor offense ofviolating a leash law. Jones v. Edwards, 770 F.2d 739, 741 (8th Cir. 1985). A violation of the leash law was not "the sort of crime to inspire officers with the fear of introducing weapons or contraband into the [jail's] holding cell." Id. Plaintiff was arrested at his home early in the morning and officers were with him at every moment after they read him the arrest warrant, which included watching him dress and go to the bathroom. See id. The Eighth Circuit concluded that security could not justify the blanket deprivation of constitutional rights that occurred. See id. at 742.
6

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 7 of 19 PageID #: 909
In another strip search case, the Sixth Circuit held it was clearly established in October 1986 that "a strip search of a person arrested for a traffic violation or other minor offense not nonnally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband, is unreasonable [under the Fourth Amendment]." Masters v. Crouch, 872 F.2d 1248, 1255 (6tb Cir. 1989). The plaintiff in Masters was arrested for failing to appear in court for two traffic tickets. See id. at 1250. She was arrested at her home and transported to the corrections building where she was ordered to open her blouse and later subjected to a strip search of her entire body. See id. The Sixth Circuit held the defendant county officers and employees were not entitled to qualified immunity on plaintiff's strip search claim. See id. at 1257.
In 1993, the Tenth Circuit Court of Appeals held that a strip search of arrestees pursuant to ajail's blanket policyrequiring all detainees, including those arrested for minor traffic offenses and awaiting bail, to be subject to a strip search violated the plaintiffs' Fourth Amendment rights. Chapman v. Nichols, 989 F.2d 393, 395-97 (10th Cir. 1993). In Chapman, the plaintiffs were arrested for minor traffic violations, thejail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and the plaintiffs were strip searched pursuant to the jail's blanket policy that all detainees be strip searched. See id. at 395. In affinning the denial ofqualified irnmunityto the sheriff, the Tenth Circuit noted that "[e]very circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional." Id. (citing cases from the Courts ofAppeals in the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits). The defense of qualified immunity was denied to the defendant sheriff because in light of several circuit court of appeals' decisions, the Tenth Circuit found that a jail official could not have reasonably believed that a strip search policy applied to minor offense detainees, without particularized reasonable suspicion, was lawful, even if conducted in private. See id. at 397-98.
In addition to the above decisions, several other federal Courts of Appeals have declared unconstitutional, jailor prison policies allowing or requiring persons arrested for traffic or other
7

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 8 of 19 PageID #: 910
minor offenses to be strip searched in the absence of individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband. See Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (holding that strip-body cavity search of arrestee who had been arrested for misdemeanor offenses was unconstitutional where jail authorities has no reasonable suspicion that arrestee was concealing weapons or other contraband); Steward v. Lubbock County. Texas, 767 F.2d 153, 156-57 (5'h Cir. 1985) (strip search policy applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband violated the Fourth Amendment); Giles v. Ackerman, 746 F.2d 614,615 (9'h Cir. 1984) (strip search ofperson arrested for minor traffic offenses held unconstitutional in absence ofindividualized suspicion) (overruled on other grounds); Hill v. Bogans, 735 F.2d 391,394-95 (10th Cir. 1984) (held that routine strip searches in public area of persons detained for minor traffic offenses is unreasonable under Fourth Amendment); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983) (strip search of misdemeanor offenders who were not inherently dangerous and who were being detained only briefly while awaiting bond violated the Fonrth Amendment); Logan v. Shealy, 660 F.2d 1007, 1013 (4'h Cir. 1981 ) (strip search ofDWI arrestee was held unconstitutional).
The written strip search policy in effect at the time Plaintiff was searched provided that all juveniles admitted to the JDC were to be searched for weapons, contraband and signs of abuse by requiring the juvenile to remove all ofhis or her clothing, including undergarments; being visually inspected while naked by a IDC staff member; and being observed while taking a shower. This blanket policy applied to minors arrested for minor offenses, such as curfew violations, alcohol violations and to CHINS children, as well as to minors arrested for more serious offenses. Moreover, the policy required JDC staff to conduct these strip searches without regard to whether the JDC staff had any reasonable individualized suspicion that the juvenile was carrying or concealing a weapon or contraband.
In support of their argument that the strip search policy was constitutional, the Defendants contend they were following nationally recognized standards recommending that all minors be strip
8

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 9 of 19 PageID #: 911
searched before they are moved from the admission area to the detention area of the facility. Defendants cite the report prepared by their expert, Charles J. Kehoe, President ofthe American Correctional Association, who opines that at the time of Plaintiff's arrest, the JDC's policies and procedures were "consistent with national standards and good juvenile detention practices and were not unconstitutional or unlawful." (Kehoe Report at S.)
Whether the JDC's strip search policy is unconstitutional or unlawful is a legal question for the Court to decide. See Bell, 441 U.S. at 559 (setting forth the balancing test to be applied by courts in detennining the reasonableness ofa search under the Fourth Amendment); Jones, 770 F .2d at 74042 (applying the Bell balancing test). Dr. Kehoe's conclusions that the JDC's policies and procedures were "neither unconstitutional nor unlawful" are legal conclusions and will be rejected to that extent. See Estes v. Moore, 993 F.2d 161, 163 (Sth Cir. 1993) (affirming district court's rejection of an expert's proposed testimony regarding the existence of probable cause for an arrest because it was a legal conclusion rather than opinion testimony). That the JDC's policies may have complied with national standards issued by a trade association or the Department ofJustice does not dictate that the policies were constitutional. Rather, the Court must apply the Supreme Court's balancing test applicable to alleged unconstitutional searches, which is quoted above, to determine whether the strip search policy and the search ofPlaintiffviolated the Fourth Amendment. See Bell, 441 U.S. at 559.
One ofthe justifications for the existence of the JDC's strip search policy advanced by the Defendants is that these searches are necessary to detect abuse or neglect, so that JDC staff may comply with state law in reporting such instances, pursuant to SDCL § 26-SA-3. This argument is based upon a faulty premise: that JDC staffhave a duty to detect abuse or neglect. The statute cited by Defendants in support of this argument provides that any court services officer or law enforcement officer "who [has] reasonable cause to suspect that a child under the age ofeighteen has been abused or neglected ... shall report that infonnation [to the proper authorities]." SDCL § 26SA-3. While JDC staffmust be alert to the signs ofabuse or neglect ofthe minors in their care, this statute does not place an affinnative duty on JDe staff to discover abuse or neglect of any minor
9

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 10 of 19 PageID #: 912
admitted to the IDC. Although IDC staff may have an interest in discovering child abuse and neglect, the Defendants have not cited and the Court has not found any authority holding that this interestjustifies the invasion ofthe minor's personal rights involved in a strip search. Balancing the JDe's interest in discovering child abuse and neglect against the invasion ofthe minors' personal rights entailed in a strip search leads this Court to the conclusion that the strip search policy in this case violates the minors' Fourth Amendment rights.
Another argument advanced by the Defendants in support of the constitutionality of the JDe's strip searches is that the searches of juveniles were reasonable administrative searches undertaken to satisfy an important government regulatory interest. The Defendants argue that "strip searches can be conducted on less than probable cause or reasonable suspicion where the government's legitimate security interest outweighs an inmate's privacy interest." (Defendants' Brief in Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment, Doc. 107.) As explained below, however, the Court does not fmd in this case that the JDe's legitimate security interest outweighs the minors' privacy interests.
Defendants contend the strip search policy is justified by the JDC's security interest in protecting those in its care, in addition to protecting the IDe staff. The Defendants attempt to distinguish the unconstitutional search in Jones, 770 F.2d at 742, from the present case. In that case, the Eighth Circuit held that: "[a]lthough we recognize that the security of detention facilities is an important concern ofcorrection officials who are, in part, responsible for the safety oftheir charges, we also recognize that security cannot justify the blanket deprivation ofrights of the kind incurred here." Jones, 770 F.2d at 742. The Court recognizes that the JDC has a security interest in preventing the introduction ofweapons or contraband into its facility. The evidence in this record, however, does not demonstrate that the incidence ofsmuggling weapons or contraband into the IDC is more than minimal. See Giles, 746 F.2d at 617 (the evidence before the Court showed that the incidence of smuggling activity at the jail was minimal).
10

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 11 of 19 PageID #: 913
The JDC's security interest must be balanced against the invasion ofpersonal rights entailed in a strip search conducted pursuant to its written policies. The invasion ofpersonal rights entailed in a strip search conducted pursuant to its written policies is similar to the invasion involved in the courts 0 f appeals' decisions discussed above. As recognized by the Tenth Circuit Court ofAppeals "[t]he experience of disrobing and exposing one's self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening. Moreover, the imposition ofsuch a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality ofthe event." Chapman, 989 F.2d at 396 (citations omitted). In this case, minors are required to completely disrobe in front ofa same-sex IDC official and are visually inspected by a IDC official before they take a shower, in the absence of any suspicion that they are carrying or concealing a weapon or other contraband. As the Tenth Circuit held "[t]here can be no doubt that a strip search is an invasion ofpersonal rights of the first magnitude." Chapman, 989 F.2d at 395. Interestingly, Defendants have not cited a case in which the security interest ofa correctional facility has outweighed the personal rights of a person arrested for a minor offense, who was subjected to a strip search in the absence of any individualized suspicion that the arrestee was carrying or concealing a weapon or other contraband.
Similar to the Giles court, balancing the JDC's security interest against the privacy interests ofthe class members, the Court holds that minors charged with minor or non-felony offenses may be subjected to a strip search only ifJDC officials possess a reasonable suspicion that the individual minor is carrying or concealing a weapon or other contraband. See Giles, 746 F.2d at 617. Reasonable suspicion may be based on such factors as the nature of the offense, the minor's appearance and conduct, and the prior arrest record. See id.
The change to the strip search policy made in September 1999 did not cure the unconstitutionality ofthe policy. Rather, the two-hour grace period likely spared some minors from being strip searched in violation of the Fourth Amendment. The minors who were not picked up
11

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 12 of 19 PageID #: 914
within two hours were subjected to the same unconstitutional search as those minors strip searched before the September 1999 policy change.
In addition to the two-hour grace period, Defendants emphasize that there was a screen installed in the shower to shield the minors' naked bodies from their necks down and their ankles up. The record is unclear whether this screen was installed only in the one shower in the unisex bathroom located in the non-secure area ofthe JDC, or whether there were screens also installed in the multiple showers in the girls' wing in the secure area of the JDC. In any event, a shower screen did not cure the unconstitutionality of the strip searches, because IDC staff visually searched all minors required to shower before entering the shower.
Now that the Court has held the JOe's written strip search policy is unconstitutional, the Court turns to the specific search ofthe Plaintiffin this action. Defendants seek to minimize the intrusion of the class members' personal rights by pointing out that Plaintiffwas not required to shower or remove her underwear and bra during the search ofher body and clothing. Defendants state in their briefthat "[j]uveniles were asked to remove only their outer clothing, not their undergarments, (Devlin Dep. at 13), a policy more lenient than recommended by national standards." (Defendants' Brief in Support ofMotion for Summary Judgment, Doc. 87.) The record does demonstrate that some minors were not required to shower or remove their undergarments during their searches.
\Vhen asked whether minors were asked to remove their undergarments during the clothing search, one IDC official, Bridget Devlin, responded "I never - I don't recall asking anyone to do that. I mean, you can pretty much see what's there when they're in undergarments so -." (Devlin Dep. at 15.) Later in her deposition, Devlin does state that she did not require minors to remove their bras and underwear (Devlin Dep. at 31), and that ifa minor was having issues with or was a little embarrassed by undressing in front ofsomeone else she tried to afford them the right ofdressing in the shower area. (Devlin Dep. at 39.) Jim Banbury, the Director of the JDC in 1999 testified, however, that during the time from when the expansion project was completed to the issuance ofthe revised written policies on September 14, 1999, JDC officers were inconsistently applying the JDC's written search policies that applied before the non-secure area was completed. (Banbury Dep. at 38-39, 53-54.) Some JDC
12

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 13 of 19 PageID #: 915
officers were fully complying with the written strip search policyheld unconstitutional above and others were modifying the searches to not require removal ofundergannents. (ld.) Despite the inconsistencies in applying lhe written search policies to those minors not admitted to the secure area ofIDC, all ofthe class members required to take showers, whether housed in the secure or non-secure area, were visually searched wbile naked. And those minors subject to clothing searches, but were not required to shower, were required to at least remove all clothing except their undergarments and were subjected to a visual search of their bodies while wearing only their undergarments.
That the JDC official who searched Plaintiffdid not require her to remove her underwear and bra in addition to her other clothing does not result in a different outcome from the holding above that the JDC's written strip search policy is unconstitutional. The Court described in detail above the written strip search policy in effect at the time Plaintiff was brought to the JDC on August 9, 1999, alld the modifications to the policy on September 14, 1999, and the reasons it is unconstitutional. Although some JDC officials were not complying with the written procedure requiring all minors to completely disrobe and shower, the Court is unwilling to draw the line between constitutional and unconstitutional searches at whether the person being searched is completely nude or nearly nude. Defendants do not cite and the Court has not found a case drawing such a distinction. Rather, the Eleventh Circuit described a visual search ofa female juvenile who was required to remove all ofher outer clothing and her bra, but was allowed to keep her underwear on, as a "strip search," and did not draw a distinction between a search while wearing one's undergarments as less invasive than a search while completely nude. See Justice v. City a/Peachtree City, 961 F.2d 188, 190-91 (11 th Cir. 1992).
The Eleventh Circuit Court ofAppeals applied the Supreme Court's balancing test set forth in Bell to determine whether the strip search ofthe minor plaintiff violated her Fourth Amendment rights. See id. at 191-94. Despite the fact that the minor was allowed to keep her underwear on during the search, the Eleventh Circuit recognized that H[c]hildren are especially susceptible to possible traumas from strip searches .... [YJouth is more than a chronological fact. It is a time and condition oflife when a person may be most susceptible to influence and to psychological damage."
13

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 14 of 19 PageID #: 916
[d. at 192 (citations and quotation marks omitted). The strip search in Justice of a female juvenile required to remove all clothing except her underwear was found constitutional only because the Defendants had reasonable suspicion to believe thejuvenile was carrying or concealing contraband. See id. at 194. In the present case Plaintiff's nearly naked body was visually searched for weapons and contraband, when she was arrested for a curfew violation, without any suspicion that Plaintiff was carrying or concealing such items.
Applying the balancing test to the search ofthe Plaintiff, the Court concludes that the search violated her Fourth Amendment rights. Plaintiffwas arrested for a minor offense, a curfew violation. Like the offenses for which the plaintiffs in several courts of appeals regarding strip searches, a curfew violation is not normally associated with weapons, violence or drugs. See, e.g., Chapman, 989 F.2d at 395-97 (minor traffic violations); Masters, 872 F.2d at 1255 (minor traffic offense); Giles, 746 F.2d at 618 (recognizing that the plaintiff's traffic violation was related neither to drugs nor to weapons); Jones, 770 F.2d at (leash law violation); Logan, 660 F.2d at 1013 (driving while intoxicated). JDC officials had no suspicion that she was carrying or concealing a weapon or other contraband. There is no indication that Plaintiffhad a prior delinquency record. There is evidence that Plaintiff was emotionally upset and crying whi Ie she was at the JDC, but there is no evidence that she was anything but cooperative and orderly. Weighing the intrusiveness of the strip search, even taking into account that Plaintiffwas not required to remove her bra and underwear, against the minimal showing of need to conduct the indiscriminate search, the Court concludes that the search of Plaintiffon August 9, 1999, violated her Fourth Amendment rights.
Defendants contend that Defendant Banbury, former Director of the JDC, and Defendant Todd Cheever, current Director of the IDC, are entitled to qualified immunity from the Plaintiff's and the other class members' claims for monetary damages. Jail officials are "protected by qualified immunity so long as 'their actions could reasonably have been thought consistentwith the rights they are alleged to have violated.'" Gregoire v. Class, 236 F.3d 413,417 (8'h Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987». "To overcome this qualified immunity, the plaintiff must 'assert a violation of a constitutional or statutory right; that right must have been
14

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 15 of 19 PageID #: 917
clearly established at the time of the violation; and, given the facts most favorable to the plaintiff, there must be no genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right.'" Id. (quoting Liebe v. Norton, 157 F.3d 574,577 (8th Cir. 1998)).
The lack ofa Supreme Court ruling on the constitutionality ofstrip searchingjuveniles in a detention facility, does not preclude a finding that the law was clearly established that the search of the Plaintiff and the other class members violated their Fourth Amendment rights. The Eighth Circuit has recognized that in determining whether a right is clearly established for purpose ofthe qualified immunity defense:
"[I]t is not necessary that the Supreme Court has directly addressed the issue, nor does the precise action or omission in question need to have been held unlawfuL In the absence ofbinding precedent, a court should look to all available decisional law including decisions of state courts, other circuits and district courts ...." Burnham v. lanni, 119 F.3d 668, 677 (8th Cir. I 997)(quoting Hayes v. Long, 72 F.3d 70, 73 (8th Cir. 1995) (citation omitted».
It is asserted in this action that Defendants Banbury and Cheever violated Plaintiff's and the other class members' Fourth Amendment right to be free from unreasonable searches. By the time of the violations involved in this action, it had been clearly established for several years that the Fourth Amendment protected persons from the kinds of searches of which Plaintiff and the class complain. See Jones, 770 F.2d at 742 n.4 (denying qualified immunity to jail officials who conducted a strip search in 1981 on a person arrested for minor offenses without any suspicion that he was harboring weapons or contraband and holding that "the fourth amendment's protection against the kind ofsearch ofwhich Jones complains was well-established at the time his search took place."). In addition to the Eighth Circuit, the Court cited above seven other federal courts of appeals that have mled strip searching arrestees of minor offenses without at least reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband violates the arrestees' Fourth Amendment rights. Those courts applied the Supreme Court's balancing test set forth in Bell, 441 U.S. at 559, in reaching their conclusions, as the Court has done in this case.
15

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 16 of 19 PageID #: 918
Defendants Banbury and Cheever argue that because their actions complied with national standards for good practice in the operation of juvenile correctional facilities, they are entitled to qualified immunity. It is noted that it has not been established on the record in this case that Defendants Banbury and Cheever were aware of the nationally recognized standards cited by Defendants' expert. In any event, even if they were aware of those standards, they are not entitled to the protection of qualified immunity because such standards do not override clearly established law. Based upon the established case law from the Eighth Circuit, as well as the seven other Circuit Courts of Appeals to have ruled on the unconstitutionality of strip searching persons arrested for minor offenses without anyreasonable individualized suspicion ofcarrying or concealing contraband or weapons, the Court finds that there is no genuine issues ofmaterial fact as to whether a reasonable official would have known that the strip searches involved in this action indeed violated the class members' Fourth Amendment rights. Thus, Defendants Banbury and Cheever are not entitled to qualified immunity on Plaintiff's and the other class members' claims for monetary damages.
2. Religious Preference Questioning Defendants seek summary judgment on the claims of the third and fourth classes certified by the Court regarding the IDC's policy and procedure in questioning minors being admitted to the JDC about their religious preferences. If a minor refused to answer the questions about their religious preferences, he or she was not forced to answer the questions and was not punished for refusing to answer. The minors that did answer the questions were not treated more or less favorably than any other detainees.
Defendants contend that the religious preference questions were asked to help JDC staff ensure that any required dietary restrictions or observances were met. Defendants argue that there was no infringement of the class members' rights to privacy or free exercise of religion as a result ofthe challenged questions.
In response to Defendants' motion, class counsel concedes "[s]ince the constitutional violation in this regard would result in only nominal damages and the defendants have discontinued
16

- - - - - - - - - - - - - - - - - ~---~---

~---~~~--. ~-~~-------------

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 17 of 19 PageID #: 919
the practice, plaintiffs are seeking only declaratory relief under Count II." (plaintiffs' Response to Defendants' Motion for Summary Judgment, Doc. 104.) As a result ofthis abandonment ofa claim for monetary damages, Defendants are entitled to summary judgment on all claims asserted by the fourth class certified by the Court seeking monetary damages for the Defendants' practice of questioning minors about their religious beliefs.
In light ofthe Defendants' discontinuance ofquestioning minors about their religious beliefs and the abandonment ofany claim for damages on that claim, the Court must examine whether a live case or controversy continues to exist. "Article ill ofthe Constitution only allows federal courts to adjudicate actual, ongoing cases or controversies." Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 611 (8th Cir. 2003). "When an action no longer satisfies the case or controversy requirement, the
action is moot and a federal court must dismiss the action." Id. (citing Minn. Humane Soc yv. Clark,
184 F.3d 795, 797 (8th Cir. 1999). The Supreme Court explained: It has long been settled that a federal court has no authority "to give opinions upon moot questions or abstract propositions, or to declare principles or rules oflaw which cannot affect the matter in issue in the case before it." .... For that reason, ifan event occurs while a case is pending on appeal that makes it impossible for the court to grant "any effectual relief whatever" to a prevailing party, the appeal must be dismissed.
Church ofScientology ofCalifornia v. United States, 506 U.S. 9, 12 (1992) (citations omitted). In this case, the Defendants discontinued the practice ofasking minors admitted to the JDC about their religious beliefs. There is no evidence in the record to suggest that the Defendants intend to reestablish this practice. Even ifthe Court were to find the practice violated Plaintiff's and the other class members' constitutional rights, the withdrawal of the claim for monetary damages makes it impossible for the Court to grant "any effectual relief whatever" to the class. Id. Declaratory relief on the religious questioning practice as requested by Plaintiff"cannot affect the matter in issue in the case" before the Court. Thus, the Court finds the claims ofthe third class certified by the Court must be dismissed without pr~udice as moot.
17

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 18 of 19 PageID #: 920
CONCLUSION The Court will deny Plaintiff's Motion to Strike, Doc. 101, but the Court rejects that portion of Dr. Kehoe's report where he opines that the IDC's policies and practices are "neither unconstitutional nor unlawful." It is for the Court to detennine whether the JDe's policies and practices are unconstitutional or unlawful. For the reasons set forth above, the Court concludes that the IDC's blanket policy ofstrip searching minors arrested for minor or non-felonyoffenses, without any individualized detennination of reasonable suspicion that the individual was or is likely to be carrying or concealing weapons, drugs or other contraband, violates the Fourth Amendment. Furthennore, the strip search ofthe Plaintiff, Jodie Smook, violated her Fourth Amendment rights. The members of the first two classes certified by the Court, therefore, are entitled to summary judgment on their claims that the strip searches they endured at the IDC pursuant to the IDC's blanket strip search policy violated their Fourth Amendment rights to be free from unreasonable searches. The remaining issues relating to the strip search claims are: 1) what type of injunctive relief is appropriate in this case; 2) what amount of monetary damages are appropriate and how should the class members' damages be detennined; 3) what should the ending date be for membership in the first two classes certified by the Court.
The claims asserted by the third class certified by the Court, the class seeking injunctive relief for being questioned about their religious beliefs, will be dismissed without prejudice as moot. Summaryjudgment will be entered in favor ofthe Defendants, and against the fourth class certified by the Court, because the class has abandoned the damages claim for being subjected to questioning about their religious beliefs at the JDC. Accordingly,
IT IS ORDERED: 1. That Plaintiff's Motion to Strike Expert Report, Doc. 101, is denied. 2. That Plaintiff's Motion for Partial Summary Judgment, Doc. 91, is granted. 3. That Defendants' Motion for Summary Judgment, Doc. 86, is (a) granted to
the extent that the claims by the third class, seeking injunctive reliefbased on religious questioning, are dismissed without prejudice as moot; (b) granted
18
---- ------

Case 4:00-cv-04202-LLP Document 116 Filed 09/27/04 Page 19 of 19 PageID #: 921

as to the claims by the fourth class, seeking damages based on religious questioning; and (c) denied as to the strip search claims asserted by the first and second classes.

4. That at the close ofthe case, judgment will be entered in favor ofDefendants on the claims of the following classes:

Ail persons seeking injunctive reliefin this action who, when they under the age of eighteen years, were charged with minor offenses from November 1, 1997 to September 14, 1999, or were charged with non-felony offenses from April 16, 1999 to September 14, 1999, and were, pursuant to JDC policy, subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center.

All persons seeking compensatory and punitive damages in this action who, when they under the age ofeighteen years, were charged with minor offenses from November 1, 1997 to September 14, 1999 or were charged with nonfelony offenses from April 16, 1999 to September 14, 1999, and were, pursuant to JDC policy, subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center.

5. That, on or before October 11, 2004, Plaintiff shall file and serve a proposed plan to concludethe monetary damages and injunctivereliefissues remaining on the strip search claims as well as propose an ending date for membership in the first two classes certified by the Court. On or before November 1, 2004, Defendants shall file and serve a response to Plaintiff's plan, and if they do not agree with Plaintiff's plan they shall include a proposed plan. Plaintiff shall file and serve a reply to Defendants' response, on or before November 11,2004.
{\.
Dated this :lii..day of September, 2004.

ATTEST:

JOSEPH HAAS, CLERK
BY: jJt 41tH? ~

(SEAL)

DEPUTY

BY THE COURT~:

I

'r-CaA~.J~..

wrence L. Piersol hiefJudge

19

 
 Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 1 of 13 PageID #: 1108

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

FILED
JAN 2 0 2005

SOUTHERN DIVISION

****************************************************

JODIE SMOOK, Individually and on behalf **

of all other persons similarly situated,

*

CIV 00-4202

*

Plaintiffs,

*

*

-vs-

*

MINNEHAHA COUNTY, SOUTH

* *

DAKOTA; JIM BANBURY, in his

*

individual capacity; TODD CHEEVER, *

MEMORANDUM OPINION AND ORDER

as Director of Minnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

Defendants.

* *

*
****************************************************

Defendants filed aMotion to Reconsider, Doc.129, asking that the Court reconsider its ruling on the summary judgment motions in this case in light of the Second Circuit Court of Appeals' decision in NG. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), issued on September 7, 2004. (Memorandum Opinion and Order, Doc. 116, September 27,2004.) The motion has been fully briefed and having carefully considered the parties' arguments and the entire record in this case, the Court has considered the Motion to Reconsider and it is granted to the extent that liability on Plaintiffs' Fourth Amendment claim and the qualified immunity issue are reconsidered on the merits. After such reconsideration, the Court again finds that Defendants are liable on Plaintiffs' Fourth Amendment claim and that Defendants Jim Banbury and Todd Cheever are not entitled to qualified immunity on Plaintiffs' Fourth Amendment claim.

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 2 of 13 PageID #: 1109
BACKGROUND
On September 27,2004, the Court held that the Juvenile Detention Center's ("JDC") blanket policy of strip searching minors arrested for minor or non-felony ofi(mses, without any individualized determination of reasonable suspicion that the individual was or is likely to be
carrying or concealing weapons, drugs or other contraband, violates the Fourth Amendment. See Smook v. Minnehaha County, 340 F.Supp.2d 1037, 1050 (D.S.D. 2004). The Court applied the balancing test in Bell v. Wolfish, 441 U.S. 520, 559 (1979), to determine whether the JDC's strip
search policy in existence at the relevant time period violated the Fourth Amendment: 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 the particular search against the invasion ofpersonal 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.
See Smook, 340 F.Supp.2d at 1042-43 (quoting Bell, 441 U.S. at 559). The Second Circuit applied the "overarching principle" set forth in Bell in conducting '" a fact-specific balancing ofthe intrusion ... against the promotion oflegitimate governmental interests. ", N. G. v. Connecticut, 382 F.3d at 230-31 (quoting Board o/Education v. Earls, 536 U.S. 822,829 (2002». The Second Circuit held
that "[a]ssessing all of the circumstances - the risks to the psychological health ofthe children from performing the searches and the risks to their well-being and to institutional safety from not performing the searches, we conclude that the strip searches upon initial admission do not violate
Fourth Amendment standards." N. G. v. Connecticut, 382 F.3d at 237. The Second Circuit did not
evaluate the facial validity of the strip search policy, but held that two ofthe strip searches involved
in that case did not violate the Fourth Amendment. See id. at 230 n.6. In the present case, the Court
evaluated both the facial validity of the JDC's strip search policy and the strip search of Plaintiff Smook. Under the facts of the present case, the Court reached the opposite conclusion from the Second Circuit in conducting the fact-specific balancing of the intrusion of the privacy of Plaintiff Smook and other juveniles admitted to the JDC against the promotion of JDC's legitimate
governmental interests. See Smook, 340 F.Supp.2d at 1050.
2

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 3 of 13 PageID #: 1110
DISCUSSION
Defendants brought their motion for reconsideration under Rule 54(b) of the Federal Rules ofCivil Procedure. The Court recognizes that it may reconsider its rulings on the summaryjudgment motions because judgment adjudicating all the claims and the rights and liabilities of all the parties has not been entered in this case. Fed.R.Civ.P. 54(b).
A. Liability on Fourth Amendment Claim The initial issue to be addressed is Defendants' failure to recognize the Court's factual
findings regarding the breadth of the mc's strip search policy in existence at the relevant time period. While Defendants continue to repeatedly assert in their brief that the strip search policy in effect at the time of Plaintiffs search did not require juveniles to remove their undergannents, Defendants disregard the evidence on record and the Court's finding that the written policy in effect at that time did require juveniles to remove their undergannents while being strip searched. See Smook, 340 F.Supp.2d at 1040. Thus, Defendants' contention that the strip search policyin this case was less intrusive than the strip searches held constitutional by the Second Circuit is erroneous. To argue that the Court was wrong in its fact finding is one way to approach that issue. To fail to even acknowledge the facts as found by the Court results in a brief that is of no assistance to the Court.
The Court acknowledges the Second Circuit's statement that "[s]trip searches of children pose the reasonableness inquiry in a context where both the interests supporting and opposing such searches appear to be greater than with searches of adults confined for minor offenses." N. G. v. Connecticut, 382 F.3d at 232. The Second Circuit's decision, however, does not convince the Court that the JDC's strip search policy results in reasonable searches under Fourth Amendment standards. The dissent in NG. v. Connecticut, 382 F.3d at 238-45, articulates much of this Court's disagreement with the Second Circuit's decision. Specifically, the Court agrees with the dissent in N G. v. Connecticut, that the majority opinion "overstates the relevance" ofseveral non-prison cases upholding drug testing ofstudents or employees who have voluntarily engaged in the job or activity that required testing and "downplays the significance of the most closely analogous case it cites, Justice v. City a/Peachtree City, 961 F.2d 188, 193 (11 th Cir. 1992)." N G. v. Connecticut, 382 F.3d
3

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 4 of 13 PageID #: 1111
at 241 (dissenting opinion). This Court does respectfully submit that the majority opinion in N. G. v. Connecticut, fails to adeqnately credit the fact that juveniles are not young adults. Harsh and potentially scaring treatment ofjuveniles suspected ofminor offenses, such as driving while revoked, cannot be justified by an in loco parentis rationale when the primary approach of the government personnel is one ofjuvenile law enforcement. Those government officials should be more attuned to the different susceptibilities ofjuveniles as opposed to treating juveniles as people with fewer rights as to their person when compared with adults. Additionally, similar to the dissent in N. G. v. Connecticut,382 F.3d at 241, the Eighth Circuit recently recognized the distinction between being subjected to a search at the hands of State officials in a situation where one voluntarily participates in an activity that requires random searches compared to being searched without having voluntarily participated in the activity allowing for random searches. See Doe v. Little Rock Sch. Dist., 380 F.3d 349, 353-54 (8th Cir. 2004).
The Eleventh Circuit's opinion in Justice, supra, was relied upon by the Court in weighing the various interests in this case to detennine whether the JDC's policy violated the Fourth Amendment. See Smook, 340 F.Supp.2d at 1047-48. The Second Circuit's opinion does not alter the Court's view ofthe soundness oftheprincipJes recognized by the Eleventh Circuit inJustice, 961 F.2d at 193, or that decision's relevance to the question of whether the JDC's strip search policy in this case is unconstitutional. As recognized by the Eleventh Circuit, "[i]t is axiomatic that a strip search represents a serious intrusion upon personal rights." Id. at 192. In discussing the seriousness of a strip search of a juvenile, the Eleventh Circuit recognized that '" [c]hildren are especially susceptible to possible traumas from strip searches .... "[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage."'" Id. at 192-93 (citations omitted).
In addition to the Eleventh Circuit's opinion in Justice, 961 F.2d at 193, the Court relied upon the Eighth Circuit's decision in Jones v. Edwards, 770 F.2d 739, 741 (8 th Cir. 1985), inholding that the JDC's policy is unconstitutional. Similar to the arguments in Jones, the Defendants in this case raise security concerns as ajustification for their blanket strip search policy. In Jones, the court
4

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 5 of 13 PageID #: 1112
rejected the argument that security concerns could justify a blanket policy of strip searching all persons arrested for minor offenses who were admitted to the jail without some individualized suspicion. 770 F.2d at 741-72. In an attempt to distinguish Jones from the present case, Defendants assert that the State has a higher governmental interest in protecting the security ofjuvenile detainees than it does in protecting adult detainees. Whether the Defendants have a heightened duty to protect juveniles, however, does not translate into higher security concerns and more intrusive searches. In discussing the serious security dangers in a detention center, police station or jail holding cell, the Eleventh Circuit held that, "[t]he considerations regarding contraband are the same whether the detainee is ajuvenile or an adult." Justice, 961 F.2d at 193. The Court concurs with the Eleventh Circuit that officials in charge of a juvenile detention facility and an adult prison or jail have the same security concern: assuring that weapons and other contraband are not introduced into the secure facilities. Although controlling the admission ofweapons and other contraband into the JDC present legitimate security concerns, as in Jones, these security concerns do not justify a blanket policy of strip searching all juveniles admitted to the JDC for non-felony and minor offenses.
The Defendants assert that, "[i]f the JDC abides by this Court's current holding and only searches juveniles when it has a reasonable suspicion to believe that they possess weapons or contraband, undoubtably, some weapons and contraband will find their way into the JDC facility." (Defendants' Briefin Support of Motion for Reconsideration Under Rule 54(b), Doc. 130 at p. 10 (emphasis added).) The Court has already concluded, however, that the record in this case does not demonstrate that the incidence of smuggling weapons or contraband into the JDC is more than minimal. See Smook, 340 F.Supp.2d at 1045. There is an absence of evidence in the record to support the Defendants' broad prediction of what might happen if JDC staff are required to have reasonable suspicion before strip searching juveniles charged with minor or non-felony offenses.
In support of their claim that it is necessary to search all juveniles for weapons and other contraband, Defendants submitted an Affidavit of Todd Cheever, Doc. 88, the current Director of the JDC. He states that, "[u]pon admission to the JDC, juveniles sometimes attempt to introduce weapons or contraband into the facility." (Doc. 88, ~ 3 (emphasis added).). Cheever further states
5

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 6 of 13 PageID #: 1113
that he has in his possession at the JDC "a large box of weapons and contraband representing
materials found on admittees over the years." (Doc. 88, '14.) As the Court initially concluded, this
evidence does not demonstrate that the incidence ofsmuggling weapons or contraband into the JDC is more than minimal. This evidence is inconclusive as to the time period within which the one large box of weapons or contraband was collected as well as what was contraband and what were weapons. More critical, this evidence fails to show that the weapons or contraband were seized from juveniles charged with non-felony or minor offenses or that the weapons or contraband were discovered as a result of strip searches, rather than other less invasive searches that may be
constitutionally performed by mc staff. Thus, similar to the state officials in the Eighth Circuit's
recent case, Doe, 380 F.3d at 352-53, the Defendants have, "in fact failed to demonstrate the existence of a need sufficient to justify the substantial intrusions upon the [juvenile]'s privacy interests that the search practice entails."
Another consideration the Defendants suggest should weigh heavily in favor of the reasonableness of the strip search policy is that the State acts as a de facto guardian of children lawfully removed from their home when they are in the custody ofthe JDC. The Defendants do not address, however, the distinction in the reasonableness inquiry the Eighth Circuit made from searches that, "can lead directiyto the imposition ofpunitive criminal sanctions," from searches that will not lead to criminal sanctions. Doe, 380 F.3d at 355. Ifa search can lead to criminal sanctions, "[rlather than acting in loco parentis, with the goal of promoting the students' welfare, the government officials conducting the searches are in large part playing a law enforcement role with the goal of ferreting out crime and collecting evidence to be used in prosecuting students." [d. Significantly, the JDC's written policy required law enforcement to remain at the JDC until a search was completed and required JDC staffto give any illegal contraband to the law enforcement officer:
Only after the completion ofthe search is the officer to depart from the Center. Any illegal contraband (i.e. drug, weapons) found on ajuvenile is to be taken by the police officer. Ifit was necessary for the officer to leave prior to the search and contraband is found, contact the officer to come back and pick up the contraband. It is the officer's decision regarding further charges.
6

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 7 of 13 PageID #: 1114
(Doc. 95, Ex. C at D 067.) Similar to the search policy in Doe, supra, the JDC's policy demonstrates that it is in large part playing a law enforcement role with the goal of ferreting out crime and collecting evidence to be used to prosecute the juveniles admitted to the JDC. Thus, in considering the character of the intrusion the JDC's strip search policy imposes, the JDC's law enforcement purposes for which the fruits ofthe strip searches are used does not weigh in favor ofconcluding that the invasion ofthe juveniles' privacy was insignificant.
The Defendants do not acknowledge the law enforcement purposes for conducting the strip searches at issue in this case and how the that purpose relates to the JDC's asserted purpose for conducting the strip searches, i.e. acting in loco parentis. Likewise, the Second Circuit in N. G. v. Connecticut, discusses a juvenile detention's responsibility to act in loco parentis, but it does not discuss how this responsibility relates to the law enforcement purposes for conducting strip searches on juveniles admitted for minor or non-felony offenses. 382 F.3d at 232. Thus, neither the Defendants nor the Second Circuit have evaluated a consideration that the Eighth Circuit has found highly relevant in evaluating the reasonableness of searches involving juveniles under the Fourth Amendment. See Doe, 380 F.3d at 355.
Another issue raised by Defendants is that they must be "alert for children who are angry about the arrest, violent, depressed, suicidal, gang members, under the influence ofdrugs or alcohol, etc." (Defendants' Brief, Doc. 130, atp. 8.) The fallacy with this argument is that ifajuvenile being admitted to the IDC displays the behaviors or raises such concerns, JDC staff may have reasonable suspicion that such a juvenile is carrying or concealing weapons or contraband and a strip search would be allowed under the Court's holding. It is important to recognize that the Court's ruling does not prohibit all strip searches. Rather, the Court's holding requires a finding of individualized reasonable suspicion of carrying or concealing weapons or other contraband before conducting a strip search ofajuvenile arrested for a minor or non-felony offense. Moreover, the Court's holding does not prohibit strip searching juveniles arrested for more offenses more serious than minor or non-felony offenses as those offenses are defined in the class definitions.
7

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 8 of 13 PageID #: 1115
Defendants again assert that they must strip search aU juveniles to allow JDC staff to detect abuse orneglect ofjuveniles. This argument was examined and rejected by the Court in the decision denying summaryjudgment to Defendants. See Smook, 340 F.Supp.2d at 1045. As the Court found, JDC staff do not have a duty to detect abuse or neglect ofjuveniles. See id. Moreover, there is no evidence in this record to demonstrate that JDC staff must conduct a strip search to detect abuse or neglect, rather than conducting a search or examination far less invasive than a strip search. While Defendants are attempting in this Motion to Reconsider to justify the JDC' s strip search policy based upon a supposed "duty to detect abuse or neglect," Defendants do not address the harm inflicted on juveniles by a strip search, much less the harm that a strip search would cause an abused or neglected child. See Justice, 961 F.2d at 192-93 (recognizing that children are especially susceptible to possible traumas from strip searches).
In addition to the considerations discussed above, in denying Defendants' summaryjudgment motion on the strip search claim, the Court relied on several circuit court decisions (cited in footnote one below) that held strip searching arrestees of minor offenses without reasonable suspicion that an arrestee is carrying or concealing a weapon or other contraband violates that arrestee's Fourth Amendment rights. See Smook, 340 F.Supp.2d at 1043-46. While not repeated here, that decisional law was considered again in ruling on the Motion to Reconsider.
Having reconsidered the issue ofthe constitutionality of the JDC's strip search policy, and balancing the JOC's interests against the interests of the class members, the Court again holds that the JOC policy violates the class members' Fourth Amendment rights and that Plaintiff Smook's Fourth Amendment rights were violated when she was searched on August 9, 1999. The Court adheres to the prior holding that a minor charged with minor or non-felony offenses may be subjected to a strip search only if JDC officials possess a reasonable suspicion that the minor is carrying or concealing a weapon or other contraband. See Smook, 340 F.Supp.2d at 1046-47.
8

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 9 of 13 PageID #: 1116
B. Qualified Immunity The final issue to be decided on this motion for reconsideration is whether, in light of the
Second Circuit's decision, Defendants Banbury and Cheever are entitled to qualified immunity. A two-part analysis is used to evaluate a qualified immunity defense: "[fJirst, [the court] must detennine whether the plaintiffhas alleged the violation ofa constitutional right. Second, [the court] must detennine whether that right was clearly established at the time of the alleged violation." Manzano v. South Dakota Dep 't ofSoc. Serv., 60 F.3d 505, 509 (8th Cir. 1995) (citations omitted). The qualified immunity defense is evaluated based upon the law existing at the time of the alleged violation. See Sexton v. Martin, 210 F.3d 905, 909-10 (8th Cir. 2000) (explaining that, "[i]t is only necessary that the unlawfulness of the official's act [be] apparent in view ofpre-existing law. ") (emphasis added). The class period began on November I, 1997, as to minor offenses and on April 16,1999, as to non-felony offenses. The strip search of the Plaintiff was conducted on August 9, 1999. Although the Court has not yet set the ending date for the class period, the Court has been advised that the strip search policy was changed as of December 31, 2003. (See Plaintiffs' Reply Memorandum, Doc. 125, November 15,2004.) Thus, it questionable whether the Court should consider the Second Circuit's 2004 decision inN. G. v. Connecticut, 382 F.3d at 237, in detennining what the state of the law was at the time of the alleged violations in this case.
As to the first part ofthe qualifi.ed immunity analysis, the Plaintiff, on behalfof herself and the class members, allege a violation of the Fourth Amendment of the United States Constitution, satisfying the first part. Thus, the remaining issue is whether it was clearly established during the class period that the mc's written policy ofstrip searchingjuveniles admitted to the JDC on minor or non-felony offenses and without individualized suspicion that such juveniles were carrying or concealing weapons or other contraband violated the Plaintiffs and class members' Fourth Amendment rights. See Sexton, 210 F.3d at 910 (holding that, "if the law claimed to have been violated was clearly established, the qualified immunity defense ordinarily fails, 'since a reasonably competent public official should know the law goveming his conduct."') (quoting Harlow v. Fitzgerald, 457 U.S. 800,818 (1982».
9

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 10 of 13 PageID #: 1117
Discussing the "clearly established" requirement in the context of a qualified immunity defense, the Supreme Court explained that, "[t]he contours ofthe right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The lack ofa Supreme Court decision does not prevent a finding that a right is clearly established. The Eighth Circuit recognized that in determining whether a right is clearly established for purpose of the qualified immunity defense, "[i]n the absence ofbinding precedent, a court should look to all available decisional law including decisions ofstate courts, other circuits and district courts ...." Burnham v. Ianni, 119 F.3d 668, 677 (8th Cir. 1997) (quotation marks and citations omitted). The Eighth Circuit explained that in determining whether a right is "clearly established" in this circuit, the Court is to apply "a flexible standard, requiring 'some, but not precise factual correspondence' with precedent, and demanding that officials apply general, well-developed legal principles." J.HH v. 0 'Hara, 878 F.2d 240, 243 (8th Cir. 1989). In addition, the Eighth Circuit further explained that it, "'has ... taken a broad view of what constitutes "clearly established law" for the purposes of a qualified immunity inquiry .... ", Sexton, 21OF.3d at 909 (quoting Boxwell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir. 1988».
In the Court's decision denying summary judgment on the strip search claim, eight federal courts of appeals' decisions were cited, in addition to the Eighth Circuit's decision in Jones, 770 F.2d at 742, that have held strip searching arrestees of minor offenses without reasonable suspicion that an arrestee is carrying or concealing a weapon or other contraband violates that arrestee's Fourth Amendment rights.' See Smook, 340 F.Supp.2d at 1043-44. The Court also cited a 1992 Eleventh
'See Masters v. Crouch, 872 F.2d 1248,1255 (6th Cir. 1989) (holding that, "a strip search ofa person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon orothercontraband, is unreasonable [under the Fourth Amendment]."); Chapman v. Nichols, 989 F.2d 393, 395-97 (lOti' Cir. 1993) (ruling that a strip search of arrestees pursuant to a jail's blanket policy requiring all detainees, including those arrested for minor traffic offenses and awaiting bail, to be subject to a strip search violated the plaintiffs' Fourth Amendment rights); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (holding that strip-body cavity search of arrestee who had
10

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 11 of 13 PageID #: 1118
Circuit Court of Appeals decision, in which it was held that strip searches ofincarcerated juveniles will be upheld, but such searches require a showing of reasonable suspicion of possession of contraband. See id., at 1048 (citing Justice, 961 F.2d at 190-91).
It is clear from the Court's discussion of Jones above that there is "some, but not precise factual correspondence" to this case. The factual correspondence between this case and Jones is that the plaintiffs were arrested for minor and non-felony offenses, they were held in custody, they were strip searched without individualized suspicion that they were carrying or concealing weapons or other contraband, the security purposes for the searches were the same, and if the state official performing the strip searches found any illegal items, those items would be seized by law enforcement officials and could result in criminal charges. The primary distinction advanced by Defendants is that Jones involved an adult rather than a juvenile arrestee. This distinction is based upon the Defendants' responsibility to act in loco parentis over juveniles, which, Defendants contend, heightens the Defendants' interest in locating weapons or contraband concealed by juveniles being admitted to the JDC to protect the juvenile being searched and the other juveniles in custody. The Eleventh Circuit, however, specifically held that the security interests in performing strip searches ofjuveniles and adults in custody is the same. See Justice, 961 F.2d at 193. Despite the asserted distinction between searching adults and juveniles, the Court finds that there is at least
been arrested for misdemeanor offenses was unconstitutional where jail authorities has no reasonable suspicion that arrestee was concealing weapons or other contraband); Steward v. Lubbock County, Texas, 767 F.2d 153, 156-57 (5"' Cir. 1985) (strip search policy applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband violated the Fourth Amendment); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (strip search ofperson arrested for minor traffic offenses held unconstitutional in absence of individualized suspicion) (overruled on other grounds); Hill v. Bogans, 735 F.2d 391, 394-95 (loth Cir. 1984) (held that routine strip searches in public area ofpersons detained for minOT traffic offenses is unreasonable under Fourth Amendment); Mary Beth G. v. City o/Chicago, 723 F.2d 1263, 1273 (7''' Cir. 1983) (strip search of misdemeanor offenders who were not inherently dangerOlls and who were being detained only briefly while awaiting bond violated the Fourth Amendment); Logan v. Shealy, 660 F.2d 1007, 1013 (4th CiT. 1981) (strip search ofDWI arrestee was held unconstitutional). Common sense should guide those regularly dealing with juveniles that juveniles surely should not be treated more harshly than adults.
11

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 12 of 13 PageID #: 1119
"some, but not precise factual correspondence" between Jones and tbis case and that the unlawfulness of the JDC's blanket strip search policy was apparent. J.H.H., 878 F.2d at 243.
Moreover, from the "general, well-developed legal principles," id., involving strip searches of persons arrested for minor offenses in the absence of individualized suspicion established by the all ofthe courts of appeals' decisions examined in the Court's decision on the summary judgment motions, a reasonable official would understand that the mc's blanket strip search policy applied to juveniles arrested for minor or non-felony offenses violates those juveniles' Fourth Amendment rights.
Other than the Second Circuit's 2004 decision, the Defendants cannot cite to any case law with "some, but not precise factual correspondence" with the present case that holds a blanket strip
search policy similar to the mc policy at issue here is constitutional. In its 2004 decision, the
Second Circuit acknowledged that it was not aware of an appellate ruling on the reasonableness of strip searches of juveniles in lawful state custody, in the absence of individualized suspicion of
possession of contraband. N. G. v. Connecticut, 382 F.3d at 233 (emphasis added). Likewise, the
Court is unaware of any circuit ruling, prior to the issuance of the Second Circuit's opinion, finding constitutional a strip search of ajuvenile admitted to ajuvenile detention facility who was arrested for minor or non-felony offenses in the absence ofindividualized suspicion ofpossession ofweapons or other contraband.
The Court concludes that, having reexamined the grounds for denying qualified immunity
in the initial decision, even in light of the decision in N. G. v. Connecticut, Defendants Banbury and Cheever are not entitled to qualified immunity in this action. In light ofthe Eighth Circuit's decision in Jones, 770 F.2d at 742, the Eleventh Circuit's decision injustice, 961 F.2d at 193, the eight other
courts of appeals decisions cited by the Court in footnote 1, and the lack of an appellate ruling that a strip search of a juvenile in lawful state custody in the absence of individualized suspicion of possession of a weapon or other contraband until 2004, the Court finds the law was clearly established beginning in 1986 that mc's policy of strip searching juveniles arrested for minor or
12

Case 4:00-cv-04202-LLP Document 140 Filed 01/20/05 Page 13 of 13 PageID #: 1120

non-felony offenses, without any individualized suspicion of possession of weapons or other contraband, violated such juveniles Fourth Amendment rights. See Jones, 770 F.2d at 742 n.4
(denying qualified immunity to jail officials who conducted a strip search in 1981 on a person
arrested for minor offenses without any suspicion that he was harboring weapons or contraband and
holding that "the fourth amendment's protection against the kind ofsearch ofwhich Jones complains
was well-established at the time his search took place."). Based upon the Court's discussion above,
it cannot be said that Defendants Banbury's and Cheever's actions '''could reasonably have been
thought consistent with the rights they are alleged to have violated.'" Gregoire v. Class, 236 F.3d 413,417 (8th Cir. 2000) (quoting Anderson, 483 U.S. at 638). The Court has considered the Motion
to Reconsider on the issue ofqualified immunity. Upon reconsideration, qualified immunity is again
denied. Accordingly, IT IS ORDERED: (I) That the Defendants' Motion for Reconsideration, Doc. 129, is granted to the extent that the Court has reconsidered its ruling on the summary judgment motions as set forth in the Court's Memorandum Opinion and Order, Doc. 116, as to Plaintiffs' Fourth Amendment claim and the qualified immunity issue, and the Motion for Reconsideration is denied in all other respects.

(2) That after having considered Defendants' Motion for Reconsideration, Doc. 129, the Court again: (a) holds that the Minnehaha County Juvenile Detention Center's blanket policy of strip searching minors arrested for minor or nonfelony offenses, without any individualized determination of reasonable suspicion that the individual was or is likely to be carrying or concealing weapons, drugs or other contraband, violates the Fourth Amendment; (b) holds that the strip search of Plaintiff, Jodie Smook, violated her Fourth Amendment rights; and (c) denies qualified immunity to Defendants Jim Banbury and Todd Cheever on Plaintiffs' Fourth Amendment claim.
:(\.
Dated this Z19(iay of January, 2005.

0 Y THE COURT:
~ U UN "'----,)

ATTEST:

JOSEP¥~AAS,CL~
BY: ,bVlftkH7 ~icJ

(SEAL)

DEPUTY

renee 1. Piersol Chief Judge

13

 
 Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 1 of 16 PageID #: 1134

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 05-1363

FILED
AUG 14 2006
<~.:D:;cJ)l~)'2-.'i~

Jodie Smook, individually and on

*

behalf of all other persons similarly

*

situated,

*

*

Appellee,

*

*

v.

* *

Minnehaha County, South Dakota; Jim *

Banbury, in his individual capacity;

*

Todd Cheever, as Director of

*

Minnehaha County Juvenile Detention *

Center,

*

*

Appellants.

*

Appeal from the United States District Court for the District of South Dakota.

Submitted: December 14,2005 Filed: August 9,2006

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.
Jodie Smook filed this action pursuant to 42 U.S.C. § 1983, "individually and behalf of all other persons similarly situated," alleging, among other things, that the policy of the Minnehaha, South Dakota, County Juvenile Detention Center ("JOC") to "strip search[] minors without probable cause" was unconstitutional. The

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 2 of 16 PageID #: 1135
complaint sought damages and injunctive relief. After granting Smook's motion for class certification, the district court denied the defendants' motions for summary judgment on the search claims, and granted the plaintiffs' motion for partial summary judgment on those claims. Defendants Jim Banbury and Todd Cheever, directors of the JDC, appeal the district court's denial of qualified immunity, and Minnehaha County also appeals the court's denial of its motion for summary judgment. We reverse and remand.
I.
Smook's complaint alleged that on August 8,1999, when she was 16 years old, she and three minor friends were arrested by the Sioux Falls City Police Department after 11 :00 p.m. for violating local curfew laws. All four juveniles were transported to the JDC. Smook alleged that as part of the admission process at the detention center, she and each of her friends were taken into a bathroom and "strip searched"
by mc personnel. (Complaint, R. Doc. No. I, at 3-4). In her complaint, Smook
asserted that the institution'S search policy or practice was a violation of her right against unreasonable search and seizure under the Fourth and Fourteenth Amendments.
The district court certified two classes of plaintiffs who:
when they [were1under the age of eighteen years, were charged with
minor offenses from November I, 1997 to a date to be set by the Court or were charged with non-felony offenses from April 16, 1999 to a date to be set by the Court, and were, pursuant to JDC policy, strip searched at the Minnehaha County Juvenile Detention Center.
(R. Doc. Nos. 42, 78). One class was defined as individuals in this category seeking injunctive relief; the other encompassed individuals seeking compensatory and punitive damages. The court further defined "minor offenses" to include petty theft,
-2-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 3 of 16 PageID #: 1136
liquor violations, being a runaway, and curfew violations, and defined "non-felony offenses" to include a litany of other specific non-violent offenses, such as truancy, tobacco, contempt of court, disturbance of school, and damage to public and private property. I
According to the written admission policy in effect at the time of Smook's arrest in 1999, when juveniles arrived at the IDC for admission, staff members were to take them to an intake area, to ask them to remove their personal items, and then to conduct an interview while an admission form was filled out. A photograph was to be taken, and the juvenile was to be given a wristband identification bracelet. The policy then called for the juvenile to take a shower, during which time a detention officer was to conduct a visual inspection of the person's body and a manual search of the person's clothes, including pockets and linings. The policy dictated that searches should "only be conducted by members of the same sex" and that "[t]he juvenile is not touched throughout this procedure." (Appellees' App. at 60).
It is undisputed, however, that when Smook was admitted to the JDC, she was not required to take a shower or to disrobe completely. Rather, she was required to remove her outer clothing so that it could be searched, but she remained clothed in her undergarments in a private room with a female staff member. One female IDC official testified that she did not recall ever asking a juvenile to remove her undergarments, because "you can pretty much see what's there when they're in undergarments." (Appellants' App. at 4). Banbury testified to his belief that some
'Smook's complaint also alleged that she was asked questions about her religious beliefs and practices and "ordered to answer those questions." (Complaint, R. Doc. No.1, at 4). She alleged that these questions invaded her privacy and impinged upon her rights to free exercise ofreligion and freedom ofassociation under the First and Fourteenth Amendments. The district court certified two other classes of plaintiffs in connection with these claims, but the claims were later dismissed, and they are not at issue on this appeal.
-3-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 4 of 16 PageID #: 1137
staff were performing searches as described in the written policy, while others were not. (Appellees' App. at 152).
In September 1999, the JDC admissions policy was revised. One revision provides that when juveniles are arrested on minor charges or detained as children in need of supervision, the detention officials shall attempt for two hours to contact a parent, and if the parent agrees to pick up the minor, then the minor may not be searched or admitted to the secure area of the facility. In addition, the JDC modified the shower area by installing a screen that shields from view all but the head, neck, and lower leg area ofa showering youth's body. In response to a state law passed in 2000, which provides that "[n]o person under the age of eighteen detained solely for a curfew violation may be strip-searched," S.D. Codified Laws § 26-11-1.1, the JDC also modified its policy to disallow strip searches of such juveniles, unless the detention officer first fills out a "probable cause" form indicating why the search is warranted.
After discovery, the defendants filed a motion for summary judgment, arguing that strip searches ofjuveniles who were admitted to the facility was a reasonable administrative procedure, and further asserting that even if the searches were not constitutional, the defendant directors ofthe JDC were entitled to qualified immunity. The plaintiffs also filed a motion for summary judgment on their Fourth Amendment claim, arguing that the undisputed facts established that the policy of strip-searching all juveniles without individualized suspicion was a violation of clearly established constitutional law.
The district court denied the defendants' motions for summary judgment. The court concluded that the JDe's written search policy in effect in August 1999 was unconstitutional and that the subsequent changes to the policy did not cure the constitutional defects. (Mem. Op. and Order, R. Doc. No. 116, at 11). The court also concluded that the search ofSmook in August 1999 violated her constitutional rights.
-4-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 5 of 16 PageID #: 1138
(ld. at 14). The court further held that Banbury and Cheever were not entitled to qualified immunity because it was "clearly established for several years" prior to the time of the alleged violations that the Fourth Amendment prohibited "the kinds of searches of which Plaintiff and the class complain." (Id. at 15).
The district court then granted partial summary judgment for the plaintiffs on the Fourth Amendment claim. The court identified three remaining issues relating to these claims: "(1) what type of injunctive relief is appropriate in this case; (2) what amount of monetary damages are appropriate and how should the class members' damages be determined; (3) what should the ending date be for membership in the first two classes certified by the Court." (ld. at 18).
After the district court entered its order, the defendants filed a motion to reconsider based on a decision of the Court of Appeals for the Second Circuit, N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), which was filed shortly before the district court granted partial summary judgment in favor of the plaintiffs. The court in N.G. held that the disrobing and visual inspection oftwo juveniles upon their admission to a detention facility was not a violation of the Fourth Amendment. Id. at 237. The defendants here argued that the N.G. decision supported the constitutionality of the JDC policy, and at least demonstrated that the institution's search policy did not violate clearly established rights in 1999. (Defs.' Mot. for Recons., R. Doc. No. 130, at 11-12). On reconsideration, however, the district court reiterated its holding that the searches violated the constitutional rights of the minors, and that the law was clearly established prior to the searches at issue. (Mem. Op. and Order, R. Doc. No. 140, at 12; Add. at 12).
-5-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 6 of 16 PageID #: 1139
II.
A.
We begin with the damages claim of the named plaintiff and class representative, Jodie Smook. The district court concluded that the search of Smook upon initial admission to the JDC, which required her to remove her outer clothing but not her undergarments, was unreasonable under the Fourth Amendment. The individual appellants, Banbury and Cheever, contend that the search was reasonable and, alternatively, that even if the search was unreasonable, the law was not clearly established on that point as of August 1999.
The Fourth Amendment proscribes "unreasonable" searches, and "[t]he test of reasonableness ... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolftsh, 441 U.S. 520, 559 (1979). "A search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Bd. ofEduc. v. Earls, 536 U.S. 822, 829 (2002) (internal quotations omitted). To determine whether a "special needs" situation justifies a search without individualized suspicion, a court must undertake "a fact-specific balancing of the intrusion ... against the promotion of legitimate governmental interests." /d. at 830.
The most apposite precedent is the Second Circuit's recent opinion in N. G. v. Connecticut, where the court applied the foregoing principles to a strip search of juveniles upon initial admission to a detention facility. Judge Newman's opinion for the panel acknowledged that the circuits uniformly have held that adults held for minor offenses may not be strip searched without reasonable suspicion that they possess contraband. 382 F.3d at 232; see Jones v. Edwards, 770 F.2d 739,741-42 (8th Cir. 1985). The Second Circuit concluded, however, that "[s]trip searches of children pose the reasonableness inquiry in a context where both the interests
-6-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 7 of 16 PageID #: 1140
supporting and opposing such searches appear to be greater than with searches of adults confined for minor offenses." N.G., 382 F.3d at 232. The State has a greater interest in conducting such a search, because "[w]here the state is exercising some legitimate custodial authority over children, its responsibility to act in the place of parents (in loco parentis) obliges it to take special care to protect those in its charge, and that protection must be concerned with dangers from others and self-inflicted harm." !d. The juvenile's interest in privacy is greater than an adult's, the court thought, because "the adverse psychological effect of a strip search is likely to be more severe upon a child than an adult, especially a child who has been the victim of sexual abuse." !d.
After finding no prior appellate decision concerning the reasonableness ofstrip searches of juveniles in lawful state custody, the Second Circuit tallied the State's legitimate interests in performing such searches: (1) the State has "an enhanced responsibility to take reasonable action to protect [children] from hazards resulting from the presence of contraband where children are confined"; (2) a strip search serves "the protective function of locating and removing concealed items that could be used for self-mutilation or even suicide"; and (3) a strip search may "disclose evidence of abuse that occurred in the home, and awareness of such abuse can assist juvenile authorities in structuring an appropriate plan of care." Id. at 236. Then assessing the risks to the well-being ofthe juveniles and institutional safety from not conducting the searches as compared to the risks to the psychological health of the children from performing the searches, the court held that "strip searches upon initial admission do not violate Fourth Amendment standards." Id. at 237. A dissenting judge concluded that the strip searches were unconstitutional because the State had failed to demonstrate a "close and substantial relationship" of the invasive strip searches to a legitimate governmental need. Id. at 242 (Sotomayor, J., dissenting).
Smook's constitutional claim is not as strong as that of the juveniles in N.G., because she was not subjected to a full strip search. She was taken to a private restroom by a female staff person, who explained that she would search Smook's
-7-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 8 of 16 PageID #: 1141
clothes for drugs, drug paraphernalia, and weapons. The staffperson directed Smook to remove her shorts, t-shirt, and sandals, and then turned the clothes inside-out, pulled the pockets inside-out, and looked through the sandals to ensure that they did not have a false bottom. (Appellants' App. at 30). Smook remained attired in her undergarments, which she testified placed her at the same level of undress as if she were "at the beach in a swimsuit." (Id. at 33). The staff person touched Smook to look under her arms, between her toes, and through her hair and scalp. (/d. at 30). After searching the clothing, the staff member returned the clothes to Smook and allowed her to get dressed. (Id.).
We conclude that this search was reasonable within the meaning ofthe Fourth Amendment. The legitimate interests of the State, surveyed by the Second Circuit in N G., were present in this case and weigh in favor of reasonableness. The search, while intrusive to a degree, presented a lesser invasion of privacy than a full strip search. It has been observed that strip searches requiring a person to disrobe completely have a "uniquely invasive and upsetting nature," N.G., 382 F.3d at 239 (Sotomayor, J., dissenting), and the decision of IDC officials to perform a less intrusive search distinguishes this incident from the close constitutional issue presented in NG. We do not gainsay that requiring a minor disrobe to her undergarments, even in a private room with only one staff member of the same sex, may still be a stressful and disturbing experience. But even the dissenting opinion in N. G. did not question that a juvenile detention facility could justify "a potentiallyinvasive search of some kind - such as a frisk search or a thorough search of all of a detainee's clothing and possessions," id. at 244, and there are obvious practical difficulties in conducting a thorough search ofa detainee's clothing while the detainee is wearing them. In light ofthe State's legitimate responsibility to act in loco parentis with respect to juveniles in lawful state custody, we conclude that after weighing the special needs for the search against the invasion of personal rights involved, the balance tips in favor of reasonableness. We thus conclude that Banbury and Cheever did not violate Smook's constitutional rights.
-8-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 9 of 16 PageID #: 1142
Our decision in Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004), does not dictate a different conclusion. In that case, our court held that a practice of subjecting secondary public school students to random, suspicionless searches oftheir persons and belongings by school officials was unconstitutional. As part of the analysis, we observed that "the fruits of the searches at issue here are apparently regularly turned over to law enforcement officials and are used in criminal proceedings against students whose contraband is discovered." /d. at 355. We concluded that "[rlather than acting in loco parentis, with the goal of promoting the students' welfare, the government officials conducting the searches are in large part playing a law enforcement role with the goal of ferreting out crime and collecting evidence to be used in prosecuting students." [d.
Smook points out that the JDC policy at issue here provides that the law enforcement officer admitting ajuvenile to the facility should stay at the JDC until the completion ofthe search, that any contraband found on ajuvenile is to be taken by the police officer, and that "it is the officer's decision regarding further charges." (Appellees' App. at 59). Smook argues that because the searches may produce evidence that an officer could refer to a prosecutor in support of potential criminal charges, the analysis in Doe compels a finding that the searches are unreasonable. The Doe decision, however, should not be read to establish that a suspicionless search based on "special needs" is per se unconstitutional whenever the fruits ofthe searches may potentially be used in criminal proceedings. In that case, we inferred from the available evidence that the officials conducting searches acted "with the goal of ferreting out crime and collecting evidence," rather than "with the goal ofpromoting the students' welfare." 380 F.3d at 355.
We do not draw the same inference from the evidence here. Officers already are permitted to searchjuvenile arrestees for evidence as an incident ofthe arrest, even for a minor offense, see Atwater v. City ofLago Vista, 532 U.S. 318, 354-55 (2001); id. at 364 (O'Connor, J., dissenting), and the goals of law enforcement to gather evidence are thus largely satisfied prior to admission at the JDC. We are not
-9-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 10 of 16 PageID #: 1143
persuaded that the JDC's profession of concern for the welfare ofjuveniles admitted to the facility is merely a pretextual explanation for searches that are in large part designed to gather evidence for criminal prosecutions. As outlined above and in the decision in N. G., a residential facility like the JDC has sound reasons to act in loco parentis, and the incidental possibility that evidence might be discovered and referred to a criminal prosecutor (no example of which is disclosed in this record) is insufficient to render the search of Smook unreasonable.
Because Minnehaha County's appeal regarding liability for the search ofSmook is inextricably intertwined with the appeal ofthe individual defendants, see Avalos v.
City o/Glenwood, 382 F.3d 792,801 & n.l (8th Cir. 2004); Kincade v. City 0/Blue
Springs, 64 F.3d 389, 394-95 (8th Cir. 1995), we have jurisdiction to consider the county's appeal on that point. For the reasons discussed, we likewise conclude that, assuming there was a direct causal link between the search of Smook and the municipal policy, see City o/Canton v. Harris, 489 U.S. 378, 385 (l989), the county did not violate Smook's constitutional rights.
Alternatively, assuming for the sake of argument that the district court was correct that there is no constitutional distinction between searches of juveniles in undergarments and searches of juveniles stripped of all clothing, and assuming the district court's conclusion that all such searches without probable cause are unreasonable, we hold that Banbury and Cheever are entitled to qualified immunity from claims for damages arising from the search of Smook in 1999. As ofthat year, there was no appellate decision from the Supreme Court, this court, or any other federal circuit ruling on the reasonableness of strip searches of juveniles in lawful state custody. See N. G., 382 F.3 d at 233.2 Our court, like many others, had concluded
20ne federal appellate decision in 1992 held that "law enforcement officers may conduct a strip search of a juvenile in custody, even for a minor offense, based upon reasonable suspicion to believe that the juvenile is concealing weapons or
contraband." Justice v. City 0/ Peachtree, 961 F.2d 188, 193 (lith Cir. 1992)
-10-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 11 of 16 PageID #: 1144
that a strip search of adult offenders without individualized SuspICIOn was unreasonable, but those cases did not consider the different interests involved when the State has responsibility to act in loco parentis.
To defeat a claim of qualified immunity, the contours of an alleged constitutional right must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Qualified immunity analysis "must be undertaken in light of the specific context ofthe case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194,201 (2001). Here, no governing appellate decision had decided how to strike the "reasonableness" balance in the situation ofjuvenile detainees, and as late as 2004, the Second Circuit concluded not only that the asserted right of juvenile detainees to be free from strip searches was not clearly established, but that the right did not even exist. The conclusion in N.G., at a minimum, was within the range of objectively reasonable determinations that an official might have reached about the lawfulness of strip searches at the JDC in 1999. Even if we have misapprehended how the Supreme Court would resolve the "reasonableness" balance on Smook's claim, we reach the alternative conclusion that Banbury and Cheever are entitled to qualified immunity for allegedly acting in a manner consistent with, or less intrusive than, a practice that the Second Circuit later held to be reasonable and constitutional.
In addition to granting partial summary judgment in favor ofSmook, the district court's order also granted partial summaryjudgment for unnamed class members who,
(emphasis added). The Eleventh Circuit said that "the strip search ofajuvenile based on less than probable cause 'instinctively gives us the most pause, '" id. (quoting Bell v. Wolfish, 411 U.S. at 558), butthe court neither reached a holding nor uttered further dictum on the constitutionality ofstrip searching juveniles at a police station, without probable cause, after an arrest for a minor offense. Uncertain dictum from a different circuit on a search arising in a different context surely did not establish clearly as of 1999 that strip searches at the Juvenile Detention Center in Minnehaha County were unreasonable.
-11-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 12 of 16 PageID #: 1145
as the class was defined by the court, were strip searched at the JDC from June 1, 1999, through September 14,1999. Banbury and Cheever contend that they are also entitled to qualified immunity from suits for damages by the unnamed class members. To review that contention, it appears that we would be required by the Supreme Court's current direction to resolve first whether the searches of the unnamed class members violated the Fourth Amendment, and then, ifso, whether the defendants are nonetheless entitled to qualified immunity. See Brosseau v. Haugen, 543 U.S. 194, 197-98 & n.3 (2004) (per curiam); Saucier, 533 U.S. at 200; see also Bunting v. Mellen, 541 U.S. 1019, 1024-25 (2004) (Scalia, J., dissenting from denial of certiorari).
The requirement to resolve the reasonableness of these searches of unnamed class members places us in a quandary. The specific facts underlying the claims are not yet developed, and the reasonableness of a particular search is often highly contextual. We do not know from this record which, if any, of the unnamed class members were searched after removing all oftheir clothing, what might have led staff members at the JDC to conduct such searches (e.g., whether they simply followed a policy by rote, or whether they exercised discretion based on such factors as whether particular undergarments were unusually capable ofconcealing contraband), whether any such searches may have involved reasonable suspicion, probable cause, or consent, and so forth. Plaintiffs contend that "[tJhe question of whether individual class members were required to be completely nude or nearly nude will be determined among the factual matters during the damages phase of the case," (Appellees' Br. at 14 n.8), yet the entitlement to qualified immunity is an immunityfrom suit, not merely a defense to liability, Mitchellv. Forsyth, 472 U.S. 511, 526 (1985), and the individual defendants are thus entitled to a decision before the litigation proceeds to that phase.
The posture ofthe appeal is complicated further by our decision that the named class representative, Smook, has no claim for damages against the defendants. That conclusion typically would disqualifY her as a class representative, see, e.g., E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395,403-04 (1977); Burris v. First
-12-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 13 of 16 PageID #: 1146
Fin. Corp., 928 F.2d 797, 806 (8th Cir. 1991), but given that a class already has been certified, "the class of unnamed persons described in the certification acquire a legal status separate from the interest asserted by [Smook]." Sosna v. Iowa, 419 U.S. 393, 398 (1975). This separate legal status means that the dismissal ofSmook's claim does not inexorably require dismissal of the class action, id. at 399-401; Rodriguez, 431 U.S. at 406 n.12; but cf Great Rivers Coop. ofSoutheastern Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir. 1997), but it also does not mandate that we decide constitutional issues in the abstract or in a context that may be hypothetical. See Kremens v. Bartley, 431 U.S. 119, 134 (1977) ("While there are 'live' disputes between unnamed members of the class certified by the District Court, on the one hand, and [defendants], on the other, these disputes are so unfocused as to make informed resolution of them almost impossible.").
Under these unusual circumstances, we decline to pass on the merits of the constitutional claims of the unnamed class members that must be resolved as a first step in determining whether Banbury and Cheever are entitled to qualified immunity from suit. Because we decline to resolve this aspect of the appeal by the individual defendants, we dismiss for lack of jurisdiction that portion of the county's appeal regarding liability for damages to the unnamed class members. On remand, the district court may consider, after pausing to "stop, look, and listen," id. at 135, whether the class should be redefined or decertified, cf Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982), and whether there is an adequate class representative to replace
Smook, if appropriate. Cf Howe v. Varity Corp., 896 F.2d 1107, 1111 (8th Cir.
1990). If the court concludes that a class should continue to be certified and there is an adequate class representative to continue the action, then the defendants, ofcourse, may renew motions for summary judgment if they wish. We expect that the district court would consider any such motions in light of our conclusions regarding the individual defendants' entitlement to qualified immunity from suit on Smook's claim.
-13-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 14 of 16 PageID #: 1147
B.
The defendants also appeal the district court's finding of liability on the plaintiffs' claims for injunctive relief with respect to future searches of juveniles detained for "minor offenses." This appeal includes a challenge to the district court's conclusion that the JDC may not, consistent with the Constitution, conduct future searches comparable to the search of Smook. As to that aspect ofthe appeal from the district court's determinations concerning injunctive relief, we agree with the parties that the issues oflaw are "inextricably intertwined" with the determination ofwhether Banbury and Cheever are entitled to qualified immunity on Smook's claim for damages, such that appellatejurisdiction is proper. See Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Kincade, 64 F.3d at 394-95. Before we may reach the merits, however, we must first satisfy ourselves that the action for injunctive relief presented a "case or controversy" over which the district court properly exercised Article III jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). Having carefully reviewed Smook's complaint with that question in mind, we conclude that she and the class certified by the district court lack standing to seek injunctive relief.
The allegations of the complaint relate entirely to past conduct by the defendants that occurred when Smook and others were arrested for minor offenses in August 1999. The district court's order certifying a class defined the relevant class as encompassing "all persons seeking injunctive relief who, when they [were] under the age of eighteen years old, were charged with minor offenses and were, pursuant to JDC policy strip searched ... at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999." There is no allegation about the likelihood of future contact with the JDC or future unreasonable searches.
It is well settled that "[plast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495 (1974).
-14-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 15 of 16 PageID #: 1148
There is no allegation in the complaint that Smook or the certified class members are suffering any "continuing, present adverse effects" from searches conducted between June 1 and September 14, 1999. There is no assertion that the plaintiffs expect to commit additional minor offenses in Minnehaha County, or that they are likely to be detained at the JDC. And there is no allegation that ifthe plaintiffs were detained at the JDC for a minor offense in the future, then they would be unable to take advantage of the two-hour grace period for parental pick-up, which now permits a juvenile to avoid any kind of search when detained for a minor offense. Even if the face of the complaint did include a general assertion of future injury, we think that attempting to anticipate whether any ofthe plaintiffs would actually be detained and strip searched would take us "into the area of speculation and conjecture." ld. at 497; see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) ("That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistence on his part."); Hedgepeth v. Washington Metro. Transit Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (Roberts, J.).
Absent a sufficient allegation that Smook and other class members are likely to be strip searched at the JDC in the future, they are "no more entitled to an injunction than any other citizen." Lyons, 461 U.S. at Ill. And "a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of Quvenile detention officials] are unconstitutional." ld. The Supreme Court has explained that this limitation on the authority ofthe federal courts does not mean that "undifferentiated claims should not be taken seriously by local authorities," for "the interest ofan alert and interested citizen is an essential element ofan effective and fair government." ld. Indeed, in this very case, the claims by Jodie Smook that she was unreasonably searched at the JDC triggered a modification ofthe institution's policy on searching minors, and prompted a statewide discussion that culminated in
-15-

Case 4:00-cv-04202-LLP Document 149 Filed 08/14/06 Page 16 of 16 PageID #: 1149 legislation prohibiting strip searches, without probable cause, ofjuveniles detained for curfew violations. But a federal court "is not the proper forum to press such claims unless the requirements for entry and the prerequisites for injunctive relief are
satisfied." !d. at 112. We therefore conclude that the plaintiffs' claims for injunctive relief should be dismissed for lack of an Article III case-or-controversy.
* * *
For the foregoing reasons, the decision ofthe district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
-16-

 
 FILED Case 4:00-cv-04202-LLP Document 185 Filed 10/25/07 Page 1 of 3 PageID #: 1379

UNITED STATES DISTRICT COURT

OCT 252007

~Q~

~

CL[Rr.

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

JODIE SMOOK, Individually and on behalf **

CIV 00-4202

of all other persons similarly situated,

*

*

Plaintiffs,

*

*

-vs-

*

MINNEHAHA COUNTY, SOUTH

* *

DAKOTA; JIM BANBURY, in his

*

individual capacity; TODD CHEEVER, *

as Director of Minnehaha County

*

Juvenile Detention Center; and

*

John and Jane Doe DETENTION CENTER *

OFFICERS,

*

ORDER

*

Defendants.

*

*

****************************************************

The Eighth Circuit Court of Appeals reversed and remanded this action for further

proceedings consistent with its August 9, 2006 opinion. After Plaintiffs' petition for a writ of

certiorari was denied by the United States Supreme Court on March 26, 2007, Plaintiffs filed with

this Court a Motion for Leave to Substitute Class Representatives. (Doc. 165.) Defendants

requested an opportunity to conduct discovery to determine if the substitute class representatives

proposed by Plaintiffs are proper. Subsequently, Plaintiffs served Defendant Minnehaha County

with discovery requests and asked Defendant to supplement responses to earlier served discovery.

Counsel for Defendants informed Plaintiffs that it will not respond to Plaintiffs' discovery requests

until this Court rules on Plaintiffs' Motion to Substitute Class Representatives. Plaintiffs then filed

a Motion to Compel discovery. (Doc. 178.) Shortly thereafter, Defendants filed a Motion for

Protective Order, asking the Court to stay discovery until the Court rules on Plaintiffs' Motion to

Substitute Class Representatives. (Doc. 182.)

Case 4:00-cv-04202-LLP Document 185 Filed 10/25/07 Page 2 of 3 PageID #: 1380
Plaintiffs acknowledge that, pursuant to the Eighth Circuit's decision, the claims for injunctive relief must be dismissed for lack of an Article III case or controversy and Smook's individual claim for damages against Minnehaha County, Jim Banbury and Todd Cheever must be dismissed. Furthermore, the Eighth Circuit directed this Court to consider whether the class should be redefined or decertified and whether there is an adequate class representative to replace Smook, if appropriate.
Plaintiffs correctly note that, in ruling that Smook has no claim for damages against Defendants, the Eighth Circuit found significant the fact that she was permitted to wear undergarments during the search. Although Plaintiffs' proposed Amended Complaint names as substitute class representatives three individuals who, unlike Smook, were not allowed to wear undergarments during the search, Plaintiffs discuss redefining the class on page 3 of Plaintiffs' Reply in Support of Plaintiffs' Motion for Leave to Substitute Class Representative. In light of the Eighth Circuit's opinion, the class certified to seek monetary damages will have to be redefined. 1 The Court's prior numerosity finding might change if the class is smaller than it was when the Court issued its initial certification order.
In addition, before granting Plaintiffs' motion, the Court must ensure that the substitute class representatives proposed by Plaintiffs meet the commonality, adequacy and typicality requirements of Rule 23(a). Limited discovery will be allowed to ensure that these requirements are met. Other discovery will be stayed pending completion of class discovery. At the completion of the limited class discovery, Plaintiffs should re-file their motion to substitute class representatives. Plaintiffs' renewed motion should include a proposed class definition, and Plaintiffs should explain how they now meet the four prerequisites for the maintenance of a class action under Rule 23(a). In their
'The class seeking monetary damages is currently defllled as: All persons seeking compensatory and punitive damages in this action who, when they [were] under the age of eighteen years, were charged with minor offenses from November 1,1997 to a date to be set by the Court or were charged with non-felony offenses from April 16, 1999 to a date to be set by the Court, and were, pursuant to JDC policy, strip searched at the Minnehaha County Juvenile Detention Center.
2

Case 4:00-cv-04202-LLP Document 185 Filed 10/25/07 Page 3 of 3 PageID #: 1381

response to Plaintiffs' renewed motion, Defendants should include any newly discovered facts relevant to the proposed class representatives' adequacy to represent the class. Accordingly,

IT IS ORDERED:

I. That Plaintiffs' Motion for Leave to Substitute Class Representatives, doc. 165, is denied without prejudice.

2. That Plaintiffs' Motion to Compel, doc. 178, is denied.

3. That Defendants' Motion for Protective Order, doc. 182, is granted.
Dated this ~dIat y of October, 2007.
,?Y THE COURT:. :::> ..
"~(;()w~aa
awrence L. Piersol United States District Judge

ATTEST:

JOSEPH ~' CLERK

BY:

,\~J:o{

n'hUTY

3

 
 Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 1 of 19 PageID #: 1432
APPENDIX 1

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 2 of 19 PageID #: 1433

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JODIE SMOOK, Individually

)

and on behalf of all other persons similarly situated,
Plaintiffs,

)
) ) CIV 00-4202
) ) Judge Piersol

V.

)

)

TODD CHEEVER, in his official capacity )

as the Executive Director of the

)

Minnehaha Juvenile Detention Center, and )

MINNEHAHA COUNTY, SOUTH

)

DAKOTA;

)

Defendants.

)

SETTLEMENT AGREEMENT

I. INTRODUCTION Subject to approval by the United States District Court for the District of South
Dakota, this Settlement Agreement sets forth the full and final terms by which the Named Plaintiffs, on behalf of themselves and members of the Settlement Class defined herein,

and defendant Minnehaha County have settled and resolved all claims that have been raised in the Complaint (filed in November 2000) and the proposed Amended Complaint (filed in June 2007).

II. NATURE AND RESOLUTION OF THE CASE

A. In November 2000, former class representative Jodie Smook filed a Complaint on behalf of herself and a class of individuals who had been arrested for alleged violations of curfew laws or other minor offenses and detained at the Minnehaha

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 3 of 19 PageID #: 1434

County Juvenile Detention Center ("JDC") and strip searched and/or questioned about their religious beliefs and practices.
B. On March 20, 2002, this Court certified this case pursuant to Fed. R. Civ. P. 23(b)(2) to proceed on behalf of "all persons seeking injunctive relief in this action who, when they were under the age of eighteen years old, were charged with minor offenses and were, pursuant to JDC policy, strip searched and/or subjected to questioning about their religious beliefs at the Minnehaha County Juvenile Detention Center from June 1, 1999 through September 14, 1999." This Court also certified a separate class pursuant to Fed. R. Civ. P. 23(b)(3) of all persons who meet the above class definition who were seeking compensatory and/or punitive damages.
C. Following plaintiffs' motion to amend the class definition, on June 6, 2003, this Court certified four classes comprised of all persons "who, when they under the age of eighteen years, were charged with minor offenses from November 1, 1997 to a date to be set by the court or were charged with non-felony offenses from April 16, 1999 to a date to be set by the Court" who were (1) strip searched at the JDC and were seeking monetary damages; (2) strip searched at the JDC and were seeking injunctive relief; (3) subjected to questioning about their religious beliefs and were seeking monetary damages; and (4) subjected to questioning about their religious beliefs and were seeking injunctive relief.1

1

Minor and non-felony offenses include: absconder, bench warrants, child in need

of supervision ("CHINS"), CHINS probation violation, CHINS violation court order, contempt

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 4 of 19 PageID #: 1435

D. On September 27,2004, this Court ruled that the JDC's strip search policy violated the Fourth Amendment. Smook v. Minnehaha County, 340 F. Supp.2d 1037 (D.S.D. 2004)("Smook /"). This Court also held that plaintiffs' claim for declaratory relief regarding JDC's policy of questioning minors being admitted to the JDC about their religious preferences must be dismissed because defendants had discontinued the practice and plaintiffs had withdrawn their claim for monetary damages on that claim. Id. at 10491050.2 On August 9, 2006, the Court of Appeals for the Eighth Circuit reversed this Court's decision, holding that (1) plaintiffs Smook's strip search was reasonable under the Fourth Amendment; (2) the individual defendants were entitled to qualified immunity; and (3) the class lacked standing to seek injunctive relief. Smook v. Minnehaha County, 457 F.3d 806 (8th Cir. 2006)("SmookIIF)? On March 26, 2007, the Supreme Court denied plaintiffs' petition for writ of certiorari.

of court-CHINS, contempt of court-delinquent, court-ordered detained, court-ordered disposition, curfew violations, damage to private property, damage to public property, delinquent probation violation, delinquent violation court order, disorderly conduct, disturbance of school, driving while revoked, failure to appear, false impersonation, juvenile arrest warrants, liquor violations, petty theft, runaway, tobacco, truancy, unamenable, underage consumption, unlawful occupancy, and window peeking. In addition, individuals brought to the JDC as a courtesy hold, placement contract, or placement contract with the Department of Corrections may qualify as class members if their alleged underlying offense falls within the definition of minor or nonfelony offense.

2

Minnehaha County requested that this Court reconsider its summary judgment

ruling based upon N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), which the Court denied on

January 20, 2005. Smook v. Minnehaha County, 353 F. Supp.2d 1059 (D.S.D. 2005)("Smook

3

On September 27, 2006, the Eighth Circuit declined plaintiffs' petition for

rehearing en bane.

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 5 of 19 PageID #: 1436
E. Following the Eighth Circuit's ruling, plaintiffs filed a motion for leave to substitute as class representatives Nicole Stauffacher, Jillian Clark, and Ross Engelbrecht on behalf of a class seeking damages. Each of the proposed class representatives was brought to the JDC during the pertinent time period for a minor or non-felony offense and each of them was required to remove all of his or her clothing and subjected to a strip search by JDC personnel.
F. In an effort to determine whether the parties could settle this dispute prior to litigating the case for a second time at the district and appellate courts, the parties' counsel, all of whom are experienced class action attorneys, participated in extended negotiations. On February 4,2009, the parties participated in a mediation with Magistrate Judge Veronica Duffy, District of South Dakota. During the mediation, counsel bargained vigorously on behalf of their clients. All negotiations were conducted at arms' length and in good faith.
G. All parties and their counsel recognize that, in the absence of an approved settlement, they would face a long course of continued litigation, including another round of discovery, motions for summary judgment, and appellate proceedings that would consume time and resources and present each of them with ongoing litigation risks and uncertainties. The parties wish to avoid these risks and uncertainties, as well as the consumption of time and resources, through settlement pursuant to the terms and conditions of this Settlement Agreement. Class counsel believe that the terms of the Settlement Agreement are in the best interests of the Class and are fair, reasonable, and
4

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 6 of 19 PageID #: 1437
adequate, and Minnehaha County wishes to bring the litigation to a conclusion on the terms set forth in this Settlement Agreement. IH. GENERAL TERMS OF THE SETTLEMENT AGREEMENT
A. Definitions. In addition to terms identified and defined elsewhere in this Settlement Agreement, and as used in this Settlement Agreement, the terms below shall have the following meanings.
1. "Action" means the lawsuit described above and the allegations contained in the Complaint filed in November 2000 and Amended Complaint filed in June 2007.
2. "Claims Administrator" means Settlement Services, Inc. ("SSI") which has been jointly designated by counsel for the parties to administer the Settlement Fund.
3. "Claim Form" means the form agreed to by the parties and attached to the Notice. The Claim Form must be submitted by eligible Class Members to SSI as part of the claims process. The Claim Form is attached as Exhibit A.
4. "Claimant" means a Class Member who has submitted a timely Claim Form.
5. "Class Counsel" means the law firm of Hughes Socol Piers Resnick & Dym, Ltd.
6. "Class Member" means any person who meets the criteria set forth in the definition of "Settlement Class."

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 7 of 19 PageID #: 1438
7. "Defendant" means Minnehaha County. 8. "Defendant's Counsel" means Wood Fuller Shultz & Smith, P.C. 9. "Depository Bank" means Capital City Bank (CCB) or another bank jointly selected by counsel for the parties to receive, hold, invest, and disburse the Settlement Fund, subject to the direction of the Claims Administrator. 10. "Final Approval" means the date on which the United States District Court for the District of South Dakota grants final approval of the Settlement. 11. "Local Counsel" means James Abourezk. 12. "Notice" means the notice of class action that is to be mailed directly to Class Members, pending Court approval, substantially in the form attached hereto as Exhibit B. 13. "Named Plaintiffs" or "Class Representatives" mean Nicole Stauffacher, Jillian Clark, and Ross Engelbrecht. 14. "Preliminary Approval" means the Order of the Court preliminarily certifying the Settlement Class and preliminarily approving this Settlement Agreement and the form of Notice to be sent to Class Members. 15. "Settlement," "Agreement," and "Settlement Agreement" each mean (he settlement as reflected in this Settlement Agreement. 16. "Settlement Class" or "Class" means the class that the parties seek to have certified, solely for the purposes of this Settlement Agreement, which is defined as "All persons who were charged with minor or non-felony offenses from November 1,
6

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 8 of 19 PageID #: 1439

1997 to December 31,2003, and were strip searched fully naked at the Minnehaha County Juvenile Detention Center."
17. "Settlement Fund" means the settlement monies paid by the South Dakota Public Assurance Alliance on behalf of Minnehaha County to the Depository Bank, pursuant to this Settlement Agreement, including all interest earned thereon, to be held, invested, administered, and disbursed pursuant to this Settlement Agreement.
18. "Final Approval Hearing" means the hearing at which the Court will consider final approval of this Settlement Agreement and related matters.
B. Class Certification. For purposes of this Settlement only, this Action will be certified, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), as a class action on behalf of a settlement class ("Settlement Class") consisting of:
All persons who were charged with minor or non-felony offenses from November 1, 1997 to December 31, 2003, and were strip searched fully naked at the Minnehaha County Juvenile Detention Center.4 IV. COURT APPROVAL/NOTICE A. Preliminary Approval. 1. Prior to execution of this Settlement Agreement, the parties have agreed upon a form for written Notice of this Settlement Agreement to Class Members,

4

In response to this Action, beginning January 1, 2004, the JDC amended its policy

to require that all strip searches conducted upon a juvenile's admission to the JDC were

conducted only if there is reasonable suspicion, the Director or Assistant Director has approved

an unclothed search, and a reasonable suspicion form has been completed. See Affidavit of Mr.

Todd Cheever, Director of the Juvenile Detention Center, attached as Exhibit C. Pursuant to and

on reliance of this Affidavit, Plaintiffs agreed to terminate the class period on December 31,

2003, and do not seek any further injunctive relief.

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 9 of 19 PageID #: 1440
subject to Court approval. 2. Upon execution of this Settlement Agreement, the parties shall
promptly file a motion with the Court seeking: a. Preliminary certification of the Settlement Class; preliminary
approval of the Settlement Agreement; appointment of Class Counsel; approval of class representatives; approval of the forms and methods of notice to be sent to Class Members; approval of procedures established for objections and opt-outs; and approval of the Claim Form.
B. Notice to the Settlement Class. 1. Prior to execution of this Settlement Agreement and as part of the
Settlement, Minnehaha County has identified electronically "all persons who were charged with minor or non-felony offenses from November 1,1997 to December 31, 2003" and were brought to the JDC. Specifically, Minnehaha County has provided Class Counsel with the name, social security number, date of birth, last known address, date(s) of admission to the JDC, and alleged offense(s) of each potential Class Member. Minnehaha County does not have record of whether each potential Class Member was strip searched fully naked; therefore, each Claimant will be required to certify that he or she was subjected to a fully naked strip search on the Claim Form.
2. Within twenty (20) days of Preliminary Approval of this Settlement Agreement, preliminary certification of the Settlement Class by the District Court for the District of South Dakota, approval of notice, claim procedures, and appointment of Class
8

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 10 of 19 PageID #: 1441
Counsel and Class Representatives, the Claims Administrator will mail Notice and a Claim Form to each Class Member in the form agreed upon by the parties or such other form as approved by the Court, via first class mail, to the last known address of each Class Member. The parties intend to provide actual notice to each Class Member, to the extent practicable.
3. Prior to mailing the Class Notice and Claim Form, the Claims Administrator will run the address list provided by Minnehaha County through the United State's Postal Service's National Change of Address system to update addresses.
4. The Claims Administrator shall provide to Class Counsel a list of those Class Members who have not been located. The Claims Administrator will maintain a log of its efforts to locate Class Members.
C. Objections to the Settlement. Class Member objections to this Settlement Agreement must be submitted in writing, and must include a detailed description of the basis of the objection. Objections must be filed with the Court, with copies served on Class Counsel and Defendant's Counsel, within forty-five (45) days after the Notice is mailed to Class Members. No one may appear at the Settlement Hearing for purpose of objecting to the Settlement Agreement without having filed and served his or her objection(s) in writing within forty-five (45) days after the Notice was mailed to Class Members.
D. Opt out. Any Class Member who wishes to opt out of the Settlement Class must mail to Class Counsel and Defendant's Counsel a written, signed statement that he
9

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 11 of 19 PageID #: 1442
or she is opting out, within forty-five (45) days after the Notice was mailed to Class Members. Specifically, the statement must state, "I understand that I am requesting to be excluded from the class monetary settlement and that I will receive no money from the settlement." The statement must include the Class Member's name and address. Class Counsel shall file with the Court all opt-out statements that are timely received. The Settlement Class will not include those individuals who file and serve a timely opt-out statement, and individuals who opt out are not entitled to any monetary award under this Settlement Agreement.
E. Motion Final Approval. The parties will jointly request that, following the dissemination of notice, claims forms, and an explanation of claim procedures, the Court hold a Final Approval hearing to determine whether this Settlement should be finally approved as fair, reasonable, and adequate pursuant to Rule 23(e). V. MONETARY RELIEF
A. Settlement Fund 1. No later than ten (10) days after Preliminary Approval of the
Settlement Agreement, the South Dakota Public Assurance Alliance, on behalf of Minnehaha County, shall send via overnight delivery a check in the sum of four hundred and fifty thousand dollars ($450,000) to the Claims Administrator payable to "Smook v. Minnehaha County Qualified Settlement Fund." The funds will be placed in an interestbearing account titled in the name of the "Smook v. Minnehaha County Qualified Settlement Fund," which will be established by the Claims Administrator. This payment
10

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 12 of 19 PageID #: 1443
is inclusive of all amounts paid to (a) Class Members; (b) incentive awards to the Named Plaintiffs; (c) attorneys' fees and costs; and (d) all costs of administering the Settlement Agreement.
2. If Minnehaha County does not pay all or part of its obligation on time, the amount owed will accrue interest at the rate of 12% per year, compounded daily. Interest will only apply to the unpaid portion of defendant's obligation.
3. The Claims Administrator shall serve as Trustee of the Settlement Fund and shall act as afiduciarywith respect to the handling, management, and distribution of the Settlement Fund.
B. Distribution of Settlement Funds. Subject to Court approval, the Settlement Fund will be distributed as follows (to which Defendant's Counsel has no objection):
1. One hundred and eighty two thousand and five hundred dollars ($182,500) to be divided equally on a per search basis (i.e., for each fully naked strip search to which each Class Member was subjected upon arrival at the JDC), among Class Members who submit a valid and timely claim for compensation, up to a maximum of $1,000 per search;5
2. Fifteen hundred dollars ($ 1,500) to Named Plaintiff Jillian Clark for her services rendered to the class as class representative, including her participation in the
5If fewer than one hundred and eighty three (183) valid claims are submitted, the remaining monies will be paid to Class Counsel.
11

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 13 of 19 PageID #: 1444
mediation;6 3. Two hundred and fifty dollars ($250) each to Named Plaintiffs
Nicole Stauffacher and Ross Engelbrecht for their services rendered to the class as class representatives;
4. Up to forty thousand dollars ($40,000) for the costs of administering the settlement, payable to the Claims Administrator;7
5. Forty-three thousand dollars ($43,000) to Class Counsel for the costs of litigating this case;
6. One hundred and eighty two thousand and five hundred dollars ($182,500) to Class Counsel for attorneys' fees, which includes payment to Plaintiffs' Local Counsel.
C. Claims Filing Procedures for and Payments to Class Members 1. In order to be eligible for an award from the Settlement Fund, Class
Members, including Named Plaintiffs, must submit a Claim Form which must be postmarked by the date established by the Court. The Claim Form shall be completed in its entirety, to the extent applicable, including a certification as to how many, if any,
^Named Plaintiffs Clark, Stauffacher, and Engelbrecht will also be eligible to receive the same relief as that available to all Class Members.
7In addition to the $182,500, the Settlement Class will also receive any monies remaining after payment to the Claims Administrator for costs of administering the settlement and a setaside for a Court-approved amount to pay for post-distribution administrative costs. However, if the costs of administration exceed $40,000, such additional monies will payable from the $182,500 set aside for class recovery.
12

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 14 of 19 PageID #: 1445
times that the Class Member was strip searched fully naked (and not permitted to remain in any clothing) at the JDC.
2. Within a reasonable time period after the date specified for receipt of the Claim Forms, the Claims Administrator shall render a determination as to whether any Class Member submitted acceptable documentary evidence as to any additional qualifying strip searches that were not in the JDC's records.
3. Each Class Member's check will be made payable only in his or her name or in the name of his or her estate. The check will be mailed to him or her at the address provided on the Claim Form.
4. If a Class Member is deceased, an authorized representative may file a Settlement Claim Form on his or her behalf. However, the representative must provide to the Claims Administrator documentation that an estate has been established in accordance with the law and that he or she is the duly appointed administrator or executor by one month before the date of distribution or the claim will be denied.
5. Class Members will be informed that all settlement checks must be cashed within 90 days after the date of issue.
6. Any balance in the Settlement Fund at the time the Fund is closed, which will be more than 90 days after the date of the issuance of checks to Class Members, and after attorneys' fees and expenses, costs of administering the settlement, and Named Plaintiff incentive awards have been paid, will be distributed under the cy pres doctrine to the Juvenile Law Center in Philadelphia, Pennsylvania, a non-profit
13

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 15 of 19 PageID #: 1446
group working on issues ofjuvenile justice and welfare reform. 7. During the next regular tax-form processing period following the
distribution, the Claims Administrator will prepare all 1099-MISC forms for Class Members who received a settlement check. The Claims Administrator will also prepare all other necessary tax forms relating to the Settlement Fund.
D. The Costs of Administering the Settlement. Subject to Court approval, the Claims Administrator's fees and expenses will be paid from the interest earned on the Settlement Fund and then from the principal of the Settlement Fund on a monthly basis, after submission of an invoice to and approval by Class Counsel. Any amount remaining from the allocated $40,000 for the costs of pre- and post-distribution administration will be divided equally among the valid claims by Claimaints.
E. Class Counsel's Attorneys' Fees and Expenses. Class Counsel shall request attorneys' fees and expenses in connection with this Settlement. Subject to Court approval, Class Counsel will receive payment of plaintiffs' attorneys' fees and expenses from the Settlement Fund to be paid at the same time as the distribution of the Settlement Funds to the Class Members. VI. OTHER PROVISIONS A. Release. If this Settlement Agreement is given Final Approval by the Court, all Settlement Class members will be bound by the relief provisions of this Settlement Agreement, and the Settlement Agreement will operate as a full, complete and
14

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 16 of 19 PageID #: 1447
final release of all claims, known or unknown, that have or could have been asserted by Settlement Class Members arising from or related to their (or, in the case of a surviving spouse or child, their spouse's or parent's) the strip searches that were the subject of this lawsuit, except for any Class Members who requested exclusion and file an individual claim within the statute of limitations.
B. This Settlement Agreement does not, and is not intended to constitute, nor shall it be deemed to constitute, an admission by any party as to the merits, validity, or accuracy of any of the allegations, claims, or defenses of any party in this case. The Class Members continue to assert the validity of their claims. Defendant does not admit or concede, expressly or impliedly, that it has violated any law.
C. Best Efforts. Plaintiffs and Defendant will use their best efforts to obtain entry of the orders of the Court contemplated herein, final Court approval of the Settlement, dismissal of the Action, and entry of an Order and Final Judgment incorporating the terms of this Agreement, and will defend the Settlement against any objections or collateral attacks by third parties.
D. Order and Final Judgment. If the Settlement is finally approved by the Court following the Final Approval Hearing, the parties will jointly request that the Court enter an Order and Final Judgment pursuant to Fed. R. Civ. P. 23(e) as follows:
1. Certifying the class for settlement purposes and finding that the requirements of Rule 23(a) and 23(b)(3) have been met;
2. Finding that notice has been accomplished as directed, met the 15

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 17 of 19 PageID #: 1448
requirements of Rule 23 and due process, and was the best notice practicable under the circumstances;
3. Finding that Named Plaintiffs and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class;
4. Finally approving the Settlement Agreement as fair, reasonable, and adequate;
5. Dismissing the Action by plaintiffs and all members of the Settlement Class with prejudice against the defendant Minnehaha County.
E. Failure to Obtain Final Approval. In the event the Settlement does not receive Final Approval from the Court, or does not become effective for any reason other than the failure of any party to perform obligations under this Agreement, this Agreement shall become null and void.
F. Due Authority of Attorneys. Each of the attorneys executing this Settlement Agreement on behalf of one of more parties warrants and represents that he or she has been duly authorized and empowered to execute this Settlement Agreement and bind such party or parties.
G. Entire Agreement. This Settlement Agreement is an integrated contract and constitutes the entire agreement among the parties with regard to the subject matter hereof and may not be modified or amended except in writing signed by all signatories or their successors) in interest.
H. Execution in Counterparts. This Settlement Agreement may be executed 16

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 18 of 19 PageID #: 1449

in any number of separate counterparts, each of which will be deemed an original and all of which together will be deemed to be part of this Agreement.
I. Governing Law. This Settlement Agreement shall be construed and enforced in accordance with the law of the state of South Dakota.
J. Notification of Completion of Settlement. The parties will notify the Court in writing when the processes and payments required herein have been completed.
K. Retention of Jurisdiction. The parties will request that the Court retain jurisdiction for purposes of administering, implementing, interpreting and enforcing this Settlement until all notices and processes required herein have been completed, and all payments required hereunder have been made; and that upon certification of completion of these notices and processes, the Court dismiss this Action with prejudice. Dated: J u n e ^ , 2009

Onl of the Attorneys for Plaintiffs
Matthew J. Piers Mary M. Rowland Juliet V. Berger-White Hughes Socol Piers Resnick & Dym, Ltd. Three First National Plaza, Suite 4000 Chicago, Illinois 60602 312-580-0100

One of the attorneys for Defendant
Gary Thimsen Mary Akkerman Woods, Fuller, Shultz & Smith 300 S. Phillips Avenue, Suite 300 P. O. Box 5027 Sioux Falls, South Dakota 57117-5027

17

Case 4:00-cv-04202-LLP Document 192-2 Filed 08/03/09 Page 19 of 19 PageID #: 1450

in any number of separate counterparts, each of which will be deemed an original and all of which together will be deemed to be part of this Agreement.
I. Governing Law. This Settlement Agreement shall be construed and enforced in accordance with the law of the state of South Dakota.
J. Notification of Completion of Settlement. The parties will notify the Court in writing when the processes and payments required herein have been completed.
K. Retention of Jurisdiction. The parties will request that the Court retain jurisdiction for purposes of administering, implementing, interpreting and enforcing this Settlement until all notices and processes required herein have been completed, and all payments required hereunder have been made; and that upon certification of completion of these notices and processes, the Court dismiss this Action with prejudice. Dated: June//-f2009

One of the Attorneys for Plaintiffs
Matthew J. Piers Mary M. Rowland Juliet V. Berger-White Hughes Socol Piers Resnick & Dym, Ltd. Three First National Plaza, Suite 4000 Chicago, Illinois 60602 312-580-0100

One oVthe attorneys for Defendant
Gary Thimsen Mary Akkerman Woods, Fuller, Shultz & Smith 300 S. Phillips Avenue, Suite 300 P. O. Box 5027 Sioux Falls, South Dakota 57117-5027

17

 
 Case 4:00-cv-04202-LLP Document 216 Filed 11/24/09 Page 1 of 4 PageID #: 1641

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

NICOLE STAUFFACHER,

)

JILLIAN CLARK, AND ROSS

)

ENGELBRECHT, Individually

)

and on behalf of all other

)

persons similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

MINNEHAHA COUNTY, SOUTH )

DAKOTA,

)

Defendant.

)

CIY 00-4202


FILED
NOV 2 ~ 2009
~~

FINAL ORDER APPROVING CLASS SETTLEMENT
 AND APPROVING CERTIFICATION OF CLASS
 FOR SETTLEMENT PURPOSES


WHEREAS, plaintiffs Nicole Stauffacher, Jillian Clark, and Ross Engelbrecht

("Plaintiffs") and defendant, Minnehaha County ("Defendant"), having made ajoint motion

for an order approving the settlement of this case in accordance with a Settlement

Agreement, fully executed on June 25,2009 (the "Settlement Agreement" or "Settlement"),

which, together with the Exhibits annexed thereto, sets forth the tenus and conditions for

a settlement of this case on a class-wide basis and for dismissal of the case with prejudice

upon the tenus and conditions set forth therein;

WHEREAS, the Court has read and considered the Settlement Agreement, the

Exhibits annexed thereto, Parties' Joint Motion for Preliminary Approval of the Settlement

Case 4:00-cv-04202-LLP Document 216 Filed 11/24/09 Page 2 of 4 PageID #: 1642
and all accompanying papers, the Parties Joint Status Report filed on October 30, 2009 and Plaintiffs' petition for attorneys' fees and costs.
WHEREAS, no class members filed any objections to the proposed Settlement or opted-out of participation in the settlement by the Court-ordered deadline;
WHEREAS, the Court having conducted a hearing in open court on November 16, 2009, which was attended by two class representatives and three members of the class and during such hearing, class members were given an opportunity to raise any 0 bj ections to the Settlement to be considered by the Court:
NOW THEREFORE, THE COURT FINDS AND ORDERS AS FOLLOWS: 1. For purposes of the Settlement, the Court has subject matter and personal jurisdiction over the parties and this dispute. 2. This Order incorporates by reference the definitions in the Settlement Agreement submitted by the Parties, and all tenns shall have the same meaning as set forth in the Settlement Agreement. 3. The following Settlement Class is certified, for settlement purposes only, pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure: All persons who were charged with minor or non-felony offenses from November 1, 1997 to December 31,2003, and were strip searched fully naked at the Minnehaha County Juvenile Detention Center. 4. With respect to the Settlement Class, this Court finds, solely for purposes of this Settlement that: (a) the Settlement Class members are so numerous that joinder of all
2

Case 4:00-cv-04202-LLP Document 216 Filed 11/24/09 Page 3 of 4 PageID #: 1643
Settlement Class members in the action is impracticable; (b) there are questions of law and fact common to the Settlement Class that predominate over any individual questions; (c) the claims of the Named Plaintiffs are typical of the claims of the Settlement Class; (d) Named Plaintiffs and their counsel will and can fairly and adequately represent and protect the interests of all of the Settlement Class members; and (e) a class action is superior to other available methods for the fair and efficient adjudication ofthe controversy, considering: (i) the interests of the Settlement Class members in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by Settlement Class members; (iii) the desirability of continuing the litigation of these claims in this forum; and (iv) the difficulties likely to be encountered in the management of the class action.
5. The Named Plaintiffs and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class.
6. Notice has been accomplished as directed by this Court, in a manner that meets the requirements of Rule 23 and due process and was the best notice practicable under the circumstances.
7. The Court approves, as fair and reasonable, Plaintiffs' request for $225,500 in attorneys' fees and costs, which includes $43,000 for out-of-pocket expenses and $182,500 in fees.
3


Case 4:00-cv-04202-LLP Document 216 Filed 11/24/09 Page 4 of 4 PageID #: 1644
8. The settlement reflected in the Settlement Agreement is fair, reasonable, adequate, and in the best interests of the members of the Settlement Class, and it is hereby approved.
9. Judgment is entered dismissing the lawsuit with prejudice in accordance with the tenus of the Settlement Agreement.
IT IS SO ORDERED. Dated this 1-et't}.day of November, 2009.

FOR THE COURT


ATTEST:
 JOSEPH HAAS, CLERK


awrence L. Piersol nited States District Judge

4


 
 Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 1 of 7 PageID #: 1231

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

NICOLE STAUFFACHER, JILLIAN CLARK,)

ROSS ENGELBRECHT, individually and )

on behalf of all other persons similarly situated, )

)

Plaintiffs,

)

vs.

)

)

MINNEHAHA COUNTY, SOUTH DAKOTA;)

)

Defendant.

)

CIV 00-4202 Judge Piersol Jury Demanded

FIRST AMENDED COMPLAINT

Plaintiffs Nicole Stauffacher, Jillian Clark, and Ross Engelbrecht, by counsel,

complain of defendant Minnehaha County, South Dakota, as follows:

NATURE OF THE ACTION

1. This action is brought pursuant to the Civil Rights Act of 1866, 42 U.S.C. §

1983, ("Section 1983"), and the Fourth and Fourteenth Amendments to the United States

Constitution, seeking to redress the defendant's unlawful policy and practice of strip

searching minors without probable cause.

JURISDICTION AND VENUE

2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

Venue is proper because the defendant resides or is located in the District of South

Dakota, Southern Division, and all of the conduct complained of occurred within this

District.

EXHIBIT
ft

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 2 of 7 PageID #: 1232
PARTIES 3. Plaintiff Nicole Stauffacher is, and at all times pertinent hereto has been, a resident of South Dakota. 4. Plaintiff Jillian Clark is, and at all times pertinent hereto has been, a resident of Minnesota. 5. Plaintiff Ross Engelbrecht is, and at all times pertinent hereto has been, a resident of South Dakota. 6. Defendant Minnehaha County is and, at all times relevant to this cause of action, was a political subdivision of the State of South Dakota that operates, manages, directs and controls the Minnehaha County Juvenile Detention Center.
CLASS ALLEGATIONS 7. Nicole Stauffacher, Jillian Clark, and Ross Engelbrecht bring this action in their individual capacities and as representatives of all other similarly situated individuals who, when they were under the age of eighteen years old, were charged with minor or non-felony offenses, and were, pursuant to Minnehaha County Juvenile Detention Center ("JDC") policy, strip searched at the JDC. 8. The class is so numerous that joinder of all members is impracticable. The class consists of all persons who have been injured in any way by the unconstitutional practices, acts and policies of the defendant and its agents. 9. Questions of fact and/or law exist that are common to all members of the putative class. These questions include, but are not limited to:
2

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 3 of 7 PageID #: 1233
a. Whether the defendant's conduct was violative of the laws and protections of the United States of America and/or the State of South Dakota;
b. What is the proper measure of damages and other remedies for the defendant's violations oflaw.
10. The named plaintiffs will fairly and adequately protect and represent the interest of the class. Plaintiffs seek no relief antagonistic or adverse to the members of the class. Plaintiffs' rights and damages suffered are typical of all members of the class. The defendant has acted or has refused to act on grounds applicable to the entire class. Plaintiffs' counsel are able and experienced in the prosecution of class actions.
II. A class action is the only appropriate method for the adjudication of this controversy. Individual actions by individual members would create a risk of inconsistent results and would be unnecessary and duplicative of this litigation. Such individual actions would work a hardship on each and every member of the class and the court system.
STATEMENT OF CLAIMS I2. A class action is the only appropriate method for the adjudication of this controversy. Individual actions by individual members would create a risk of inconsistent results and would be unnecessary and duplicative of this litigation. Such individual actions would work a hardship on each and every member of the class and the court system.
3

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 4 of 7 PageID #: 1234
Nicole Stauffacher 13. On December 6, 1997, Nicole Stauffacher, who was thirteen (13) years old
at the time, was detained by officers from the Sioux Falls Police Department after allegedly shoplifting. She was with two adult friends of the family and their daughter at the time of the incident.
14. The police officers handcuffed Stauffacher and transported her to the JDC. 15. At the JDC, Stauffacher was brought into a room with a shower, required to remove all of her clothing, and strip searched at the direction of the JDC's personnel. 16. Stauffacher was held at the JDC for a few hours and then released to her mother. Jillian Clark 17. On August 30, 2000, Jillian Clark, who was seventeen (17) years old at the time, was detained by officers of the Sioux Falls Police Department after allegedly shoplifting. 18. The police officers handcuffed Clark and transported her to the JDC. 19. At the JDC, Clark was brought into a holding room, required to remove all of her clothing, and strip searched at the direction of the JDC's personnel. 20. Clark was held at the JDC for a few hours and then released to her both of her parents.
4

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 5 of 7 PageID #: 1235
Ross Engelbrecht 21. In or about December 2000, Ross Engelbrecht, who was seventeen (17)
years old at the time, was issued a ticket by officers of the Sioux Falls Police Department while he was in attendance at a party at which there was underage consumption of alcohol.
22. On December 19, 2000, when Engelbrecht appeared in court on the ticket, he pleaded guilty to underage consumption, at which time the judge ordered him to immediately serve two days at the JDC. Police officers then handcuffed Engelbrecht and transported him to the JDC.
23. At the JDC, Engelbrecht was brought into a room with showers, required to remove all of his clothing, and strip searched at the direction of the JDC's personnel.
24. Engelbrecht was held at the JDC for two days and then released to his mother.
42 U.S.C. § 1983- Fourth Amendment
25. Plaintiffs incorporate by reference the allegations ofparagraphs 1 through 24. 26. The actions complained ofin paragraphs 12 through 24 were done pursuant to an unlawful and unconstitutional policy or practice of conducting strip searches of individuals under the age of eighteen years old who were brought to the JDC for minor or non-felony offenses, without reasonable suspicion to conduct a strip search. 27. The actions complained of have caused plaintiffs and the members of the plaintiffclass to be subjected to an unreasonable search and seizure, deprived oftheir liberty,
5

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 6 of 7 PageID #: 1236
embarrassed, humiliated, subjected to extreme emotional distress, and deprived of rights secured by the Fourth and Fourteenth Amendments to the Constitution ofthe United States.
Prayer for Relief WHEREFORE, plaintiffs respectfully request, on behalfofthemselves and the class they seek to represent, that this Court: A. Enter judgment in favor of plaintiffs and members of the plaintiff class and against the defendant Minnehaha County for violation of the Fourth and Fourteenth Amendments to the United States Constitution; B. Declare that the actions of the defendant alleged in this complaint were unconstitutional; C. Award plaintiffs and the members of the plaintiff class appropriate compensatory damages, against the defendant; D. Award plaintiff and members of the plaintiff classes the costs and attorneys fees incurred in this action; and E. Grant plaintiffs and the members ofthe plaintiff class such additional relief as is just and proper. Plaintiffs demand trial by jury on all issues for which a trial by jury is allowed.
6

Case 4:00-cv-04202-LLP Document 165-2 Filed 06/08/07 Page 7 of 7 PageID #: 1237

June 7, 2007

Respectfully submitted,

ne of the attorneys for the plaintiffs

Matthew J. Piers Mary M. Rowland Juliet V. Berger-White Hughes Socol Piers Resnick & Dym, Ltd. Three First National Plaza, Suite 4000 Chicago, Illinois 60602 (312) 580-0100
James Abourezk Abourezk Law Firm 401 East 8'h Street Suite 321 Sioux Falls, South Dakota 57103 (605) 334-8402

7