UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

NAKISHA BOONE,

:

individually and on behalf of a class

:

of others similarly situated,

:

:

Plaintiff,

:

:

v.

:

:

CITY OF PHILADELPHIA,

:

:

Defendant.

:

____________________________________:

Civil Action Number: 05-CV-1851

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

Pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure,

plaintiff, by and through her undersigned attorneys, hereby moves this Honorable Court

for certification of the class consisting of the following members:

All persons who have been or will b e placed into th e

custody of the Philadelphia Prison System after being

charged with misdemeanors, summary offenses, violations

of probation or parole, tr

affic infractions, civil

commitments, or other minor crimes, and who were or will

be strip searched upon their entry into the P hiladelphia

Prison System pursuant to the policy, custom and practice

of the Philadelphia P rison System and the City of

Philadelphia. The class period commences on April 21,

2003 and extends to th e present or until the d efendant is

enjoined from, or otherwise ceases, enforcing the

unconstitutional policy, practice and custom of conducting

strip searches absent reasona ble suspicion. Specifically

excluded from the clas s are any and all of the City of

Philadelphia’s affiliates, legal r epresentatives, heirs,

successors, or assignees. Also excluded from the class are

any and all employees of the Philadelphia Prison System.

In support thereof, plaintiff avers as follows:

1

1. Plaintiff is a member of the aforesaid class and her claims are common and typical of those of the class;
2. The class is so numerous that joinder of all members is impractical;
3. Plaintiff will fairly and adequately represent the class; 4. There are common questions of law and facts which predominate
any individual issues; 5. Defendant’s defense as to plaintiff’s claims are common and
typical of their defenses to class claims; 6. The class is the fairest and most efficient means of adjudicating
this controversy; and 7. Plaintiff incorporates by reference as though fully set forth herein
her memorandum of law filed herewith. WHEREFORE, plaintiff respectfully requests this Court grant her motion to certify this class as a class action.
Respectfully submitted by:

/s Dated: February 16, 2007
Daniel Id Levin, 510 Philadelphia, Telephone: Telecopier: Electronic

Daniel C. Levin _______________________________
C. Levin, Esquire No.: 80013
Fishbein, Sedran & Berman Walnut Street, Ste. 500
PA 19106 215-592-1500 215-592-4663
Mail: dlevin@lfsblaw.com

2

Elm ELMER 1040 Post Am Telephone: Telecopier:
Laura Identification 1604 Philadelphia,
LFeldm Christopher Identification 115 West

er Robert Keach, III, Esquire LAW OFFICES OF
ROBERT KEACH, III, PC Riverfront Center Office Box 70 sterdam, NY 12010
518.434.1718 518.770.1558 Electronic Mail: bobkeach@keachlaw.com

Gary E. Mason, Esquire

Alexander Barnett, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

Alexandra C. Warren, Esquire

CUNEO, GILBERT & LADUCA, LLP

507 C Street, NE

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

Feldman, Esquire No. 49459
FELDMAN & PINTO Locust St., 2R PA 19103
Telephone: 215-546-2604 Telecopier: 215-592-4663 Electronic Mail:
an@FeldmanPinto.com

G. Hayes, Esquire No. 57253
East Chestnut Street, 2nd Floor Chester, PA 19380
Telephone: 610-431-9505 Telecopier: 610-431-1269

3

Ostria 1800 Suite Philadelphia,

Electronic Mail: CHayes@FeldmanPinto.com
Kevin Birley, Esquire t & Associates, LLC John F. Kennedy Blvd. 300 PA 19103
ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

4

 
 CIVIL COVER SHEET

APPENDIX H

The: JS-4~ cJ\u coyer sheet and the information contained herein ne::her replace nor supplement the filing and sef\'lce of pleadings or other papers as required by la\\', C\ccpt as provided by local rules of court Tim form, approved by the JudiCial Conference of the Unlled Statcs In September 1974, IS required for the usc of the Clerk of Cour! for the purpose of'llltl3tlng the Civil docket sheet. (SEE r;-;STRUCTIONS ON TJ-lE REVERSE OF THE FORM)

l, (a) PLAINTJFFS
NAKISHA BCX)NE, both individually and on behalf of a class of others similarly situated (b) County of Resldcnce of Flrsl Listed Plaintiff Philadelphia
(EXCEPT IN LJ.S. PLAINTiFf CASES)

DEFEl\'DANTS
SEE A~rl~ SHEEll

Counly of Residence of First Listed

Philadelphia

(IN U S PLAINTIFF CASES ONL Y)

NOTE: fN LAND CONDEMNATION CASES, USE THE LOC.ATION or THE LAND INVOLVED

(c) Allorncy 's .(FmTl Name, Address, and Telephone Number)

A Itomcys (If Knov.n)

DANIEL C. LEVIN, ESQUIRE

Levin, Fishbein,- SedraIL& Bennan

510 TV'alnut St. Ste. 500 Philq .; PA-19106

__ --.::;.r-~.;·~-----·-.,..-·-~-·---·i·

-~~.---

;- -"".

II. BASIS OF JURISDICTION (PI", an'X" ,n On, 80' Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES(PI", an "x' ,nOn' Bo. (0' PlaonHf(

(For Diversity Cases Only)

and 0 ne 80'" for De (coLlanl)

o I U.S Govemmcnt

Xl 3 Federal Question

Citizen of TIllS State

DfF

DH

1XJ1 Incorporated or PrinCipal Place 0 4 04

Plaintiff

(U S Govemment NOI a Pany)

of Business In ThiS State

o 2 U S Govemment
Defendant

DIVCfSlty (IndICate Citizenship of Panles in Item JIf)

Citizen of Another State 0 2 r•.

Incorporated and Principal Place 0 5 05 of BUSiness In Another SLate

o Citizen or Subject of a

3 03 Foreign Nallon

o 6 06

I\', NATUREOFSUIT
CONTRACT

(Place an "X" tn One Box Only)
TORTS

FORFEITURE:PE1\ ALTY

BANKRUPTCY

OTHER STA TUTES

0 I 10 J n~ ulGnL (';

PERSO"'AL t~JURY

PERSO~AL INJlRY

0

0 I]U 1\1 alIne

0 3 IU A lfplane

0 )62 ptHonaJ lnJI,.lfY-

0

0 J)U Mille! Act

0 )15 Airplane PrOduct

1\11:0 M alpr<lCllCe

0

0 140 Ncgcl13ble Instrumenl

Liability

0 )65 relsonal lnJul),-

0 0 150 Recovery of Overpi:li~en{ )2U AssauJl, LIbel &

Prod uel L1abdlly

0

&. E nforctmcnl of Judgment

Slandtl

0 )68 A san lOS Personal

0

0 151 Medicare I\CI

0 )~O Ft<.lrral Employtrs'

lnp,ny Pmduct

0

0 1)1 Recoqr), of Ot fauhru

Llabdlly

Liabdlly

0

Student Loans

0 )40 M atlne

PERSO!'iAi. PROPERTY

(E l( I Veler ans)

0 )45 M.,rlne PrOduct

0 ) 700 ther f-raud

0

0 IS) Rao,'u)' of O,"crpayment

Ltablllly

0 )71 Truth In Lending

of Vrleran's Bcne rt!~

::J 350M Olor Vel'llc Ie ,.~ 380 Olher Per!loonaJ

0 160 SlOck holders' SUII~ :::1 190 Olher Coniroci

0 )55 MOlal vehicle
ProduCI L,abtlllY

PrClprrlr Damage
0 385 PropcIIY Damage

0

o 0 ! 95 Con!laci PrOdlict Liabllliv 0 lOU I~, e f PelS 0 n a I

Produ(.1 Llabtlily

0

REAL PROPERTY 0 210 L.lnd ConuelTlnalion

CIVIL RIGHTS 0 44 I V ollng

PRISONER PETITIOI\S 0
0 510 M oljon~ 10 Vacale

0 :;: 10 Forec losure

0 4412 E mrlo)'mtnl

Senlence

0

0 2JO Renl Le:aH &: [Jectmenl 0 441)Hou~lng/

Habea.l> CtlfPU)

0 240 Tom 10 Land

Accommod allon~ 0 530 General

0

0 :'45 TOrI ProduCI llabtlJl)' 0 290 All Other Rca! Pfapr.rty

ex0 40141 Welfare 440 O/her CI\II Rights

0 0

535 Death PenallY 540 Mandamu~ & Dlher

0

0 5S0 (pIli Righis

0 5 SSP, Ison (endltlon

610 Agnculture 6200 ther Food & O,ug 625 Ofug Relaled SeIzure:
of Property 21 USC
630 Liquor Laws
640 R R & Truck
650 Aliline Rq:~ 660 Occupational
Sa{ety/H tallh 69001t.er

0 Ol Appeat 28 USC tS8
0 42) W.thdra ..... al l8USCIS7
PROPERTY RIGHTS
0 820 Copyrights 0 [1)0 P altnl 0 840 Tradrmark

LABOR

SOCIAL SECURITY

710 Fair Labor SlanJilld) 0

AcJ

0

720 labo rIM bml Relallons 0

0

730 LaboriMgmt Rrportlng 0

861 HIA (1)9Sff) 862 Btack Long (92)) M6) DIWCIDIWW ('05(g)) &64 5SI0 T"k XVt 865 RSt (40S(g))

& DIsclosure Act 740 Rail .... i1V Labor ACI

FEDERAL TAX SUITS

0 ~70 TalC'S (U S P161nllf{
790 Olher labor L!llgallon or Defcnda nt)

791 Empl Rei tnc
St:CUfity Act

0 871 IRS-Third 1'0111), )6 USC 7609

0400 Stare ReapPOlilonmenl
o 410 Anll1fuS! o 4}O Banb and 8ankln~
0.; 5U CommerccilCC R ernie", 0460 Drpllrlallon 0470 Ral:ketttf InllucnccCl and
COf/Up' Organizal1ons
o 8 I 0 5t l,::clJ I'e: Service o 8S0 Securlrto/Cornmodlhes/
C... ..:hange 0875 lustOmtJ ChaJlen&e
I:L'SC)410
o '9t AgTlcullural Ac Is o ~41 Economic S".,bdl'.anon ACI
08'13 En\'lfonme:fllal MaileH 0894 Er.rrgyAII,1talion ACI 0895 r,c:euom of
InformatIOn Act
0 900 Appeal ofFre Delermll1allOn
Under equal A(,(C55 10 J u ~ Ill' (
o 95u Con~ljlutlonillily of
Sia Ie St.atule:S 0890 Other 5161U101)' Actions

v, ORIGIN

(PLACE AN "X" IN ONE. BOX ONL Y)

o lK- Qflginal

2 Removed from

Proceeding

State (oul1

o 3 Remanded from
Appellate Court

Transferred from
o another district
4 Reinstatcd or 0 5 (speCify) Reopened

51983 11981 VI. C A U SE 0 F A C TI 0 N ((He the U S. Ci .... '~ Statule ur:.der whIch rou art fillnt and wfjte brief ~talemcnl of cau~e

42 USCA

"1' J"",d"',on, I ''''''e, ,nt,,, ."""Iy)

o 6 Multidistrict LitigatIOn

Appedl 10 District
o Judge from
7 Magistrate Judgment

I'll. REQUESTED IN

~.. :HECK IF THIS IS A CLASS ACTION

DE~lA"D $

CHECK YES unly d·del11,1."~ed In complaint

COMPLAINT:

UNDER F R.C P 23

JURY DEMAND:

'-" Ye,

0 No

(See

.:III. RELATED eASElS) instructions):

IF ANY

JU[l'-;r:

DOCKET NUMBER

I h/o~__r_-------ft-~~T~U-::;.;oR-"L-.~'HtORNF =_y It,TC-:-:-__

OR OfFICfL:SE Or<oLY

,

~- -A-'-'..

Y ne_R_E_C_O_R_D_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

RECEIPT, _ _ _ _ __ AM OU N _________ APPL y tNG tFP _ _ _ _ _ _ __

JU DG E _ _ _ _ _ _ __ MAG 'LID GE _ _ _ _ _ _ _ _ _ _ __

l:;\lITD ST.-\ ITS DISTRlCT COlfRT
FOR n{E EASTER." DlSTRJCT OF PE"~·SYLVA.;'IA - DESIG"A no,", fORM to ~ ustd by couns<l to i.odiott lbt c.attgory of lbt c:ut for t~ purpose of assignment to appropna!t caleod .. r.
AdJrm of Plainuff 308 N. Redfield Street, Philadelphia, PA 19139

(U" RevrfJr S,dr For AddiriofUJi Spa(r)

Does this case Involve mulndlsmct Ilogarion possibilities"
RELATED CASE IF A.,VY

YesO. Nv[jQ{

Case Num~r: _ _ _ _ _ _ _ _ _ _ _ Judge _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dale Temunat.ed:. _ _ _ _ _ _ _ _ _ _ _ _ _ __

Civil cases are deemed related when yes IS answered to any of the following quesoons:
Is thiS case related to property included m an earlier num~red suit pendlllg or Wlmm one year prevIOusly terrruflaLed acoon In thiS coun? Does thiS case Involve the same Issue of fact or grow Out of the same transacoon as a prior SUI! pendmg or wlthlll one year prevIOusly termlflaLed acuon 11l thIS coun" J Does thiS case involve the vaJld;ry or lIlfnngement of a paLent already In su;t or any earlier numbered case pending or wlthl1l one year prt:vlously terrOinaLed acuon In this coun"

YesO NoD

YesO NoD

/'

YesO NoU

CrvlL (Place 010 ONE CATEGORY ONLY)
A Fedual Quemon CaJrs.

B. Div(mry jurislUcnoll CaJrs:

0 Indernrury Conmel, Marine CooOdet, and All
Other Conrrac15
0 FE LA 0 Jones Act·Person.aJ [nJury

I. 0 Insun.nu ConOdel and Omer Conrraets 2. 0 Atrplane Penon.aJ injury J. 0 Assault, Defam.aoon

4 0 Anotrusl

4 0 Manne Penonal injury

0 Palent

5 0 Motor Vehicle Penon.aJ injury

6 0 Labor· Manage men! Re lations 7 ~ CIVU Rights

6. 0 Other Penon.aJ [nJury (Please SpeCify)

XI 7

Products Liabulry

8 0 Habeas Corpus

8 0 ProduC15 Llabulry - Asbestos

9 0 Securities Actls) Cases

9. 0 All other Dlvenlry Cases

10 0 Social Seeunry ReView Cases

(Please SpeCify)

II 0 All other Federal Quesoon Cases

(Please speCify)

ARBITRA nON CERTIFICATION

Daniel C. Levin, Esquire

(Check appropriQ/~ Ca/rgory!

1.-------------------------

~ Pur;uant to Local CJvil Rule 53 2. SectJon 3(c)(2). that to th

owledge and belief. the damages recoverable to this Civil aenon case

exceed the sum of $100.000 00 C~clU5IvC of Jnterest and COSts.
o Relief other than moneury damages IS sough!.
DAIT: __~_~_)-_(_ltJ_ _J __

800)3

/

Anomey I D /I

NOTE: A trial de novo will be a Irial by'

nly If lhere has been compliance with FRCP 38.

I ceniJy Ibal, 10 my knowledge, Ibe Wllbin case 15 nOI relaled I 'xcepl as noted alxlvt.
)AIT: __1/:_1._.)._(_I_{_}r'_ __
IV. 609 (7/95)

" ~nding or Wllhin onc year prevIOusly IcrtnUlaled aCllon in lhLs coW1

~

800)3
Anomey I D II

U~lTED STA ITS DISTRICT COURT
fOR TI{£ E.ASrE~"I DISTRICT OF rEl\~5YLVA.';rA -' DESIGNAnON FORM 10 ~ U5~ by couru~i 10 LDruut. lb. Cdl<gOry of Ibe c~ for t~ purpose of ~ignrnent 10 appropnJir c3ieD<i.or.
308 N. Redfield Street, Philadelphia, PA 19139
Address of PlalJluff ----------------------------------------------------------------------
,.\ddrcss of Defendam· _ _ _ _SE_E_N_lr_l'A_CH_E-D_S_H_EE_'l'_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Place of Accldenl, inc~ent or T~nsacoon. _ _~_~ ___~~~~~-~~~-~~-~~--------------------~
(Uu Rev(fJ( S,d( For AddillofUJi Spou)

Does IlllS case Involve mulnd,slflct Ilogauon posslbl!rots'
REL4TED CASE IF ANY

YesD

Case Number· _ _ _ _ _ _ _ _ _ _ _ Judge _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Da~ Terrruna~: _ _ _ _ _ _ _ _ _ _ _ _ _ ____

("dcascs are deemed relaled when yes IS answered to any o( the (ollowlng qucsoons
Is thiS case related 10 properry Included m an earlier num~red SUIl pcndtng or Wlmtn one year preYlously lenrurta~d acuon In thiS coun? 2 Does thiS case Inyolye the same Issue of fact or grow out of the sam. lr.Insacoon as a pnor S'U1I pendmg or within one year preYlously Ie rm 111.1 ted acuon lJl thIS
coun' J Does thiS case inyolye the validity or tnfnngement of 3 pa~nr already In SUI! or
any ealirer num~red case pending or wlthm one year preYlously ICrm.lJla~d acoon In tillS coun'

YesD Noe} YesD No:::' YesD NoG

CfVlL (Place 0 In ONE CATEGORY ONL Y)
A F(daoi QIJ(lnOn Ca.s(j:

B, D,,'uJi!y }IJrudim'ofl Gun:

o Indemnity Concract. Marine (oncraCi. and All

Other Concracl5

I. 0 Il\S\lr.lJlcc COnlraCI and Other COnOdelS

2 0 FE LA.

2, 0 Airplane PersorW injury

3 0 Jones ACI,PersorW InjUry

3. 0 Assault. Defamacon

4 0 Anorrust

4 0 Manne PersorW injury

S 0 Patenl

S 0 Motor Vehicle PersonaJ injury

6 0 Labor·Martagement Relaoons

Xl 7

C,yil Rlghl5

6, 0 Other PenorW InjUry (Please SpeCify)
7. ~ Products Llabulty

8. 0 Habeas Corpus

8. 0 Products Liabulty -' AsbcslOs

9 0 Secunoes ACI(s) Cases

9 0 All other DIYersiry C~s

10 0 SOCial Secunry ReYlew Cases

(Please specify)

II 0 All other Federal Quesoon Cases

(Please spec dy)

ARBITRAnON CERTIFICATJON

Daniel C. Levin, Esquire

(Chak appropriau Ca/~gory)

1.------------------------------------

f rtconl do hereby cerufy:

llf\ Pur;uanl to Local C,yil Rule S3 2, Secuon 3(c)12), thai 10 the

nowledge and belief. the damages recoYerable in thiS civrl acnon case

e."eed the sum of $JOO.OOO 00 e~cluslye of interesl and COsls,
o Relief other than monetary damages IS sought.

DA TE: ___(,-Vl_r_,_t:.....:lJ}_.____

80013

Anomer·al·La

Anomey 1.0 #

NOTE: A (rial de novo will be a (nal by ju

f there has been compliance with F.R,C.P. 38.

I certily tbat, 10 roy knowledge, tbe "ltttin case 15 not related to a except 3.< noted above,
[)AIT: __y_l_r_II_()_r_ __
:IV. 609 rl/95l

ndmg or willun oce year prevlOl15ly tenninated actlOc un this court
80013
Anomey I 0.#

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

APP E!\,DIX I

CASE MANAGEMENT TRACK DESIGNATIO:\' FORM

NAKISHA BOONE, roth individually and.

on behalf of a class of others

.

similarly situated

CIVIL ACTION

v.
NO.
CI'l'Y OF PHILADELPHIA, et al
In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a case Management Track Designation FOlm in all civil cases at the time of filing the complaint and serve a copy on all defendants. (See § I: 03 of the plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plamtliT regarding said designation, that defendant shall, WIth its Erst appearance, submit to the clerk of court and serve on the plaintIff and all other parties, a case management track designation form specIfying the track to wruch that defendant belIeves the case should be assigned.

SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:

(a) Habeas Corpus - Cases brought under 28 U.s.c. §2241 through §2255.

( )

(b) Social Security - Cases requesting review of a decision of the Secretary of Health

and HWTIaI1 ServIces denymg plaintIff Social Secunty Benefits

( )

(c) Arbitration - Cases required to be designated for arbitration under Local CIvil Rule 53.2 . . ( )

(d) Asbestos - Cases involving claims for personal injury or property damage from

exposure to asbestos.

( )

(e) Special Management - Cases that do not fall into tracks (a) through (d) that are commonly referred to as complex and that need special or mtense management b'y the court. (See reverse side of this form for a detaIled ex plan.at ion of special management cases.)
(f) Standard Management - Cases that do not fall into anyone of the other tracks.

,
( )

Date 215-592-J 500
Telephone

Daniel C. Levin, Esq. Plaintiff

Attorney-at-law 215-592-4663

Attorney for
dlevin~fsblaw.com

FAX Number

E-Mail Address

(av. 660) 10/02

SllMMOl'.'S IN A CIVIL ACTION

UNITED STATES DISTRICT COURT
-
NAKISHA BOONE, both individually and on behalf of a class of others similarly situated, 308 North Redfield Street . Philadelphia, PA 19139

I Dismct
EASTERN DISTRICT OF PENNSYLVANIA
Docket No,
CIVIL ACTION NO.
To: (Name and Address of Defendant)

Plaintiffs,

v.

CITY OF PHILADELPHIA, PHILADELPHIA PRlSON SYSTEM, , LEON KING, II, ESQUIRE, CHARLES 1. GRANT, ESQUIRE, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS, ESQUIRE, WESLEY PINNOCK, ESQUIRE, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN :'MURPHY, and ROBERT TOMASZEWSKI,

Defendants.

YOU ARE HEREBY SUMMOr-..TED and required [0 serve upon

Platnllffs AlI()mey (Name and Address) Daniel C. Levin, Esquire LEVIN, FISHBEIN, SEDRAN & BERMAN
5 10 1')a 1 nut S t r e e t - S t e. 50 0 Philadel~hia, PA l~l 06 2]5-592-1500

:

,

an answer to the co:fnplaint which is herewnhserved upon you, within
days after serVice of thiS summons upon you, exclusive of the day of service.
you If fail ro do so, Judgmen~ by default will be taken against you for the
relief demanded in the complaint.

, Clerk

MICHAEL E. KUNZ

Date

(8y) Deputy Clerk

RE: Boone v. City ofPhiladelphia, et al
DEFENDANTS:
City of Philadelphia 7901 State Road Philadelphia, PA 19136
Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
Reginald Hammond Curran-Fromhold Correctional Facility P. O. Box 6230 7901 State Road Philadelphia, PA 19136
Robert L. Tomaszewski, Warden House of Correction 8001 State Road Philadelphia, PA 19136
Leon A. King, II, Esquire Acting Commissioner Office of the Commissioner Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
John C. Murphy Deputy Commissioner for Facility Operations Officer of the Commissioner Philadelphia Prison System 7901 State Road Philadelphia, PA 19136

Charles J. Grant, Esquire, Chairman Board of Trustees Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
Paul Lancaster Adams, Esquire Board of Trustees Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
Lisette Shirdan-Harris, Esquire Board of Trustees Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
Dr. Wesley Pinnock Board of Trustees Philadelphia Prison System 7901 State Road Philadelphia, PA 19136
Eleanor M. Kahana Secretary to the Board of Trustees Philadelphia Prison System 7901 State Road Philadelphia, PA 19136

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NAKISHA BOONE, both individually and on behalf of a class of others similarly situated, 308 North Redfield Street Philadelphia, PA 19139
Plaintiffs,
v.
CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, ESQUIRE, CHARLES J. GRANT, ESQUIRE, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS, ESQUIRE, WESLEY PINNOCK, ESQUIRE, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, and ROBERT TOMASZEWSKI,
Defendants.

Civil Action Number CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

INTRODUCTION This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiff and proposed Class by the United States Constitution and the laws of the United States of America. For at least the past 10 years, the Philadelphia Prison Systems ("PPS") has had a policy of strip-searching all individuals who enter the City of Philadelphia's jail facilities and are placed into jail clothing, regardless of the crime upon which they are charged. Upon information and belief, this policy is, in part, derived from the written procedures of the PPS, and was promulgated by senior Department officials;

specifically, Defendants Commissioner Leon A. King, II and the remaining individual defendants.
It has been well established that individuals charged with misdemeanors or violations cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In short, the policy of PPS, City of Philadelphia and individual defendants to force those charged with minor crimes to undergo the indignities of a strip search upon entry into their jail facilities is not only clearly illegal, but is insensitive and unnecessary.
Nakisha Boone ("Boone") brings this action on behalf of herself, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. This individual was charged with a misdemeanor offense and was subject to a strip search, in violation of her rights against unreasonable searches under the Fourth Amendment of the United States Constitution. Plaintiff seeks monetary damages for herself and each member of the proposed class, a declaration that City of Philadelphia's policies are unconstitutional, and an injunction precluding City of Philadelphia and the PPS from continuing to violate the rights of those placed into their custody. With this as a background, Plaintiff Nakisha Boone complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.c. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive
2

damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.c. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government.
2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiff s claims and those of proposed class members occurred in this judicial district.
PARTIES 3. Plaintiff Nakisha Boone resides at 308 North Redfield Street, Philadelphia, PA 19139. On November 13, 2004, Ms. Boone was detained on misdemeanor chargesa bench warrant relative to a 1998 misdemeanor charge of endangering the welfare of a child - following a traffic stop by the Philadelphia Police Department. Ms. Boone was transported to the Riverside Correctional Facility ("RCF") the following day. As a result of this detention, Ms. Boone was strip searched during the booking process at RCF. Specifically, she was required to remove all her clothes and squat before a Corrections Officer. She was also forced to bend over and spread the lobes of her buttocks. The six year old criminal charges upon which Ms. Boone was detained were later dismissed by the Philadelphia City Municipal Court. 4. Defendant City of Philadelphia is a Municipality located in Pennsylvania. It is upon information and belief that the Defendant, City of Philadelphia, is responsible for enacting uniform policies and overseeing the PPS. At all times relevant hereto,
3

Defendant City of Philadelphia together with the PPS was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the PPS and was responsible for the appointment, training, supervision· and conduct of all personnel including those working for the PPS. In addition, at all times relevant hereto, Defendant, together with the PPS, was responsible for enforcing the rules of the PPS.
5. Defendant Philadelphia Prison System is organized and exists under the laws of the Commonwealth of Pennsylvania. At all times relevant hereto, PPS was responsible for the policy, practices, supervision, implementation and conduct of all matters pertaining to the prison and was responsible for the employment, training, supervision and conduct of all personnel including those working for the PPS. In addition, at all relevant times hereto, defendant, together with the City of Philadelphia was responsible for enforcing the rules of the PPS.
6. Defendant Leon King, II, Esquire, is the Commissioner of the Philadelphia Prison System. As such, Mr. King is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Mr. King's principle place of business is in the City of Philadelphia. Mr. King is made a defendant in this action in both his individual and official capacities.
7. Defendant Charles J. Grant, Esquire is on the Board of Trustees of PPS.. As such, Mr. Grant is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Mr. Grant's place of business is in the City of Philadelphia. Mr. Grant is made a defendant in this action in both his individual and official capacities.
4

8. Defendant Paul Lancaster Adams is on the Board of Trustees of PPS. As such, Mr. Adams is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Mr. Adams' place of business is in the City of Philadelphia. Mr. Adams is made a defendant in this action in both his individual and official capacities.
9. Defendant Lisette Shirdan-Harris, Esquire is on the Board of Trustees ofPPS. As such, Ms. Harris is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Ms. Harris' place of business is in the City of Philadelphia. Ms. Harris is made a defendant in this action in both her individual and official capacities.
10. Defendant Wesley Pinnock, Esquire is on the Board of Trustees of PPS. As such, Mr. Pinnock is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Mr. Pinnock's place of business is in the City of Philadelphia. Mr. Pinnock is made a defendant in this action in both his individual and official capacities.
11. Defendant Eleanor M. Kahana is the secretary to the Board of Trustees of PPS. As such, Ms. Kahana is a policy maker with respect to the treatment of pretrial and other detainees over which the PPS exercises custodial or other control. Ms. Kahana place of business is in the City of Philadelphia. Ms. Kahana is made a defendant in this action in both her individual and official capacities.
12. Defendant Reginald Hammond is the duly appointed Deputy Commissioner for Policy, Training and Special Services of the Philadelphia Prison System. As such, Mr. Hammond is a policy maker with respect to the treatment of pretrial and other
5

detainees over which PPS exercises custodial or other control. Mr. Hammond's place of business is the City of Philadelphia. Mr. Hammond is made a defendant in this action in both his individual and official capacities.
13. Defendant John Murphy is the duly appointed Deputy Commissioner for Facility Operations of the Philadelphia Prison System. As such, Mr. Murphy is a policy maker with respect to the treatment of pretrial and other detainees over which PPS exercises custodial or other control. Mr. Murphy's place of business is the City of Philadelphia. Mr. Murphy is made a defendant in this action in both his individual and official capacities.
14. Defendant Robert Tomaszewski is the duly appointed Deputy Commissioner for Correctional Administration of the Philadelphia Prison System. As such, Mr. Tomaszewski is a policy maker with respect to the treatment of pretrial and other detainees over which PPS exercises custodial or other control. Mr. Tomaszewski's place of business is the City of Philadelphia. Mr. Tomaszewski is made a defendant in this action in both his individual and official capacities.
15. The Individual Defendants detailed above are collectively referred to as the "Policy Making Defendants" in this Complaint.
CLASS ACTION ALLEGATIONS 16. Plaintiff brings this action pursuant to Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of herself and a class of similarly situated individuals who were charged with misdemeanors or minor crimes and were strip searched upon their entry into the PPS. 17. The class that Plaintiff seeks to represent is defined as follows:
6

All persons who have been or will be placed into the custody of the PPS after being charged with misdemeanor violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon their entry into the PPS pursuant to the policy, custom and practice of the PPS and the City of Philadelphia. The class period commences on April 21, 2003 and extends to the present or until the defendants are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
18. This action has been brought and may properly be maintained as a class action
under Federal law and satisfies the numerosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
19. The members of the class are so numerous as to render joinder impracticable.
Upon information and belief, there are hundreds of people arrested for misdemeanors and
violations who are placed into the custody of the PPS every month - all of whom are
members of the proposed class. Upon information and belief, the size of the proposed
class totals at least 30,000 individuals, some of whom have had their civil rights violated
on mUltiple occasions.
20. Upon information and belief, joinder of all of these individuals is
impracticable because of the large number of class members and the fact that class
members are likely dispersed over a large geographical area, with some members
presently residing outside of Philadelphia County and this Judicial District. Furthermore,
upon information and belief, many members of the class are low-income persons, may
not speak English, and likely would have great difficulty in pursuing their rights
individually.
7

21. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches violated by Defendants' conducting strip searches absent particularized suspicion. All members of the class were charged with misdemeanors or violations when placed into the custody of the PPS, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
22. Plaintiff's claims are typical of the claims of the members of the Class. Plaintiff and all members of the class sustained damages arising out of Defendants' course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members.
23. The representative Plaintiff has the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are adverse to the interests of the members of the Class.
24. Plaintiff has retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. The named Plaintiff is being represented by Daniel C. Levin of Levin, Fishbein, Sedran & Berman; Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, PC; Gary E. Mason and Charles Schneider of The Mason Law Firm, PLLC; Jonathan Cuneo and Charles LaDuca of Cuneo, Waldman and Gilbert, LLP; Christopher Hayes, Law Offices of Christopher Hayes, Laura Feldman of Feldman & Pinto, and Kevin Birley ofOstriat Associates, LLC. Proposed Class Counsel has significant experience in class actions and civil rights litigation.
8

25. In short, Plaintiffs counsel has the resources, expertise and experience to successfully prosecute this action against the Defendants and the Policy Making Defendants. Counsel for Plaintiff knows of no conflicts among members of the class, or between counsel and members of the class.
26. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to the same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and placed into the custody of the PPS. In short, the PPS and the Policy Making Defendants acted on grounds generally applicable to all class members.
27. In addition to certification under Rule 23(b)(2), and 1ll the alternative, Plaintiffs seek certification under Rule 23(b)(3).
28. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants' written and/or de Jacto policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the PPS is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de Jacto policy existed during the class period.
29. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are
9

dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
30. Upon information and belief, there are no other actions pending to address the Defendants' flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for at least the past 10 years with the practice being declared unconstitutional.
31. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 32. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the Corrections Officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 33. Upon information and belief, the City of Philadelphia, PPS and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of
10

strip searching all individuals who enter the custody of the PPS and are placed into jail clothing, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband.
34. Upon information and belief, the City of Philadelphia, PPS and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) and strip searches (involving the removal of clothing for a visual inspection) on all individuals who enter their custody, regardless of the individual characteristics or the nature of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as "strip searches."
35. The City of Philadelphia, the PPS and the Policy Making Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. This Court and the Federal Courts of Appeal have stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion.
36. The Defendants' written and/or de facto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
11

37. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
38. Upon information and belief, the City of Philadelphia, PPS and Policy Making Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching all individuals placed into the custody of the PPS and placed into jail clothing without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
39. Pursuant to this written and/or de facto policy, each member of the Class, including every named Plaintiff, was the victim of a routine strip search upon their entry into the Philadelphia Prison System. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
40. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or defacto policy, the victims of the unlawful strip searcheseach member of the class, including every named Plaintiff - has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
12

Facts Applicable to the Named Plaintiff 37. Ms. Boone's experience is representative. On or about October 22, 2004 at approximately 6:30 PM, Plaintiff Nakisha Boone was arrested on a bench warrant relative to a criminal charge originally prosecuted against her in 1998. The charge in question, endangering the welfare of a child, is a first degree misdemeanor under 18 P.C.S.A. § 4304. Ms. Boone's arrest occurred after she was stopped for a traffic violation. The circumstances of her criminal chares are that she is alleged to have left her children alone, thereby endangering their welfare. The misdemeanor criminal charges pending against her were later dismissed. 38. The following morning, Ms. Boone was transported to the Riverside Correctional Facility, a component facility of the Philadelphia Prison System, and was booked into the facility. Approximately 24 hours later, Ms. Boone was moved into a room in the booking area of RCF and ordered to remove her clothing. Ms. Boone was then instructed to "squat and cough," and then to bend over and spread the lobes of her buttocks to allow for a visual examination of her vagina and anus. Ms. Boone was then provided with a jail uniform. 39. On this particular occasion, there was no reasonable suspicion to believe that Ms. Boone was concealing a weapon or other contraband. Indeed, no inquiry was made of Ms. Boone that could have given rise to the requisite reasonable suspicion necessary to conduct a strip search. 42. As a direct and proximate result of the unlawful strip search conducted pursuant to the Defendants' policy, practice and custom, Plaintiff has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
13

CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivations Under of Color of State Law -43. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 42. 44. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 45. The actions of Defendants detailed above violated Plaintiffs rights under the United States Constitution. Simply put, it was not objectively reasonable for the City of Philadelphia, PPS and the Individual Defendants to strip search Plaintiffs and class members based on their arrests for misdemeanor/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct officers to conduct such searches. 46. These strip searches were conducted pursuant to the policy, custom or practice of the City of Philadelphia, PPS and individual defendants. As such, the City of Philadelphia is directly liable for the damages of the named Plaintiff and members of the Class. 47. Upon information and belief, City of Philadelphia, PPS and individual defendants are responsible for establishing the policies and procedures to be utilized in
14

the operation of the PPS, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, the Individual Defendants are each individually responsible for the damages of the named Plaintiff and members of the Class.
48. The Individual Defendants knew that the strip search policy, practice or custom was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and members of the Class of their Constitutional rights.
49. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
50. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and members of the proposed class have been irreparably injured. AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS
-- Demand for Declaratory Judgment -51. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 50. 52. The policy, custom and practice of the City of Philadelphia, PPS and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the PPS without any particularized suspicion that the individuals in question have either contraband or weapons. 53. Plaintiff and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Philadelphia, PPS and individual defendants to be unconstitutional.
15

AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction--
54. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs I through 53.
55. The policy, custom and practice of the City of Philadelphia, PPS and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the PPS without any particularized suspicion that the individuals in question have either contraband or weapons.
56. Upon information and belief, this policy is currently in place at the PPS, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs.
57. The continuing pattern of strip searching individuals charged with minor crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
58. Plaintiff demands that the City of Philadelphia, PPS, the Policy Making Defendants immediately desist from strip searching individuals placed into the custody of the Philadelphia Prison System absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much.
16

DEMAND FOR PUNITIVE DAMAGES 59. The actions of the Individual Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search policy even though they know for a fact that their actions are unconstitutional. 60. It is clear that the Policy Making Defendants have no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish the Policy Making Defendants, and to send a message to them that the requirements of the United States Constitution also apply to government officials in the City of Philadelphia.

DEMAND FOR TRIAL BY JURY 61. The Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Nakisha Boone, on behalf of herself and on behalf of a

class of others similarly situated, requests that this Honorable Court grant her the

following relief:

A.

An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23.

B.

A judgment against all Defendants, jointly and severally on Plaintiff's First

Cause of Action detailed herein, awarding Compensatory and Punitive Damages to the

named Plaintiff and each member of the proposed class in an amount to be determined by

a Jury and/or the Court on both an individual and a class wide basis.

17

C.

A declaratory judgment against all Defendants declaring the City of

Philadelphia and the PPS' policy, practice and custom of strip and visual cavity searching

all detainees entering the system, regardless of the crime charged or suspicion of

contraband, to be unconstitutional and improper.

D.

A preliminary and permanent injunction enJommg Defendants from

continuing to strip and visual cavity search individuals charged with misdemeanors or

minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the

search is concealing weapons or other contraband.

E.

A monetary award for attorney's fees and the costs of this action, pursuant to

42 U.S.C. § 1988 and Fed. R. Civ. P. 23;

Dated: April 21, 2005

Respectfull{su mitted by:
~/

Daniel C. Levin, Esquire

Id No.: 80013

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Ste. 500

Philadelphia, PA 19106

Telephone:

215-592-1500

Telecopier:

215-592-4663

Electronic Mail:

dlevin@lfsblaw.com

Elmer Robert Keach, III, Esquire

LAW OFFICES OF

ELMER ROBERT KEACH, III, PC

1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

Telephone:

518.434.1718

Telecopier:

518.770.1558

Electronic Mail:

bobkeach@keachlaw.com

18

Gary E. Mason, Esquire

Charles Schneider, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

CUNEO WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E.

Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

Laura Feldman, Esquire

Identification No. 49459

FELDMAN & PINTO

1604 Locust St., 2R

Philadelphia, PA 19103

Telephone:

215-546-2604

Telecopier:

215-592-4663

Electronic Mail:

LFeldman@FeldmanPinto.com

Christopher G. Hayes, Esquire Identification No. 57253 115 East Chestnut Street, 2nd Floor West Chester, PA 19380 Telephone: 610-431-9505 Telecopier: 610-431-1269 Electronic Mail: CHayes@FeldmanPinto.com

19

Kevin Birley, Esquire Ostriat & Associates, LLC 1800 John F. Kennedy Blvd. Suite 300 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS
20

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

NAKISHA BOONE and GEORGE BYRD, both individually and on behalf of a class of others, similarly situated

Civil Action No. 05-cv-1851

Plaintiffs,

v.

THE CITY OF PHILADELPHIA, et al.,

Defendants. __________________________________________

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Dated: March 23, 2007

TABLE OF CONTENTS
Table of Authorities…………………………………………………………………........iii
Introduction………………………………………………………………………………..1
I. Procedural History………………………………………………………………...2
II. Factual Background……………………………………………………….....……2
III. Preliminary Injunctive Relief is Necessary to Safeguard the Constitution Rights of Individuals Admitted to PPS Facilities…………………………………………....4
A. Plaintiffs are Likely to Prevail in This Litigation, as Federal Courts Have Universally Held that Blanket Jail Strip Search Policies are Unconstitutional When Applied to Individuals Charged with Misdemeanors or Other Minor Crimes……………………………………………………………………..5
i. The City of Philadelphia’s Blanket Strip Search Policy, as Applied to Individuals Charged with Misdemeanors and Other Minor Crimes, is Patently Unconstitutional………………………………5
ii. The City of Philadelphia Cannot Now Manufacture Reasonable Suspicion When All Members of the Proposed Class Were Strip Searched Through a Uniform Strip Search Policy……………………………………………………………...8
iii. Protecting the Security Interests of the Prison System Does Not Justify the Uniform Strip Search Policy…………………………10
iv. The City of Philadelphia’s Policy of Intermingling Pretrial Detainees With Convicted Detainees is Not a Justification for its Uniform Strip Search Policy……………………………………..13
B. Plaintiffs and Members of the Putative Class are Likely to Suffer Irreparable Injury Without Injunctive Relief………………………….…13
C. Failure to Grant Injunctive Relief Would Cause Substantial Harm to Plaintiffs and the Class…………………………………………………...14
D. Granting Relief Would Serve the Public Interest........................………..16
IV. Plaintiffs Have Standing to Seek Injunctive Relief……………………………...16
Conclusion…………………………………………………………………………….…20
ii

TABLE OF AUTHORITIES
Cases Allee v. Medrano, 416 U.S. 802(1974) ............................................................................. 14 Bell v. Wolfish, 441 U.S. 520 (1979) ......................................................................... passim Bowers v. City of Philadelphia, 2007 U.S. Dist. Lexis 5804 (E.D. Pa. Jan. 25, 2007)
................................................................................................................................ passim Bowers v. City of Philadelphia, 2006 U.S. Dist. Lexis 71814 (E.D. Pa. Sept. 28,
2006)……………………………………………………………………………...passim Bynum v. District of Columbia, 384 F. Supp. 2d 342 (D. D.C. 2005) ................................ 5 Calvin v. Sheriff of Will County, 2004 WL 1125922 (N.D. Ill. May 17, 2004)............ 8, 12 Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993)................................................. 4, 5, 12 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............................................................ 18 Davis v. City of Camden, 657 F.Supp. 396 (D. N.J. 1987)............................................. 7, 8 Doe v. Calumet City, 754 F.Supp. 1211 (N.D. Ill. 1990) ................................................... 9 Dodge v. County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005……………………..5, 8, 14 Duffy v. County of Bucks, 7 F.Supp. 2d 569 (E.D. Pa. 1998) ............................................. 6 Foote v. Spiegel, 995 F.Supp. 1347 (D. Utah. 1998).......................................................... 9 Ford v. City of Boston, 154 F.Supp. 2d 131 (D. Mass. 2001) .................................. 4, 7, 11 Gerstein v. Pugh, 420 U.S. 103 (1975)....................................................................... 16, 17 Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) .......................................................... 5, 12 Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304 (N.D.N.Y. 2001) .......................... 8 Haney v. Miami-Dade Co., No. 04-CV-20516-CIV, 2004 WL 2203418 (S.D. Fla. Aug.
24, 2004) ......................................................................................................................... 5 John Does, 613 F. Supp. 1514 (D. Minn. 1985)............................................................... 11 Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (D. Mo. 2004).......................... 15 Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985) ................................................................. 5 Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).............................................................. 9 Justice v. City of Peachtree City, 961 F.2d 199 (11 Cir. 1992) ......................................... 5 Kahler v. County of Rensselaer, No. 03-CV-1324 (TJM/DRH), 2005 WL 1981300 (N.D.
N.Y. Aug. 17, 2005)........................................................................................................ 5 Lee v. Perez, 175 F. Supp.2d 673 (S.D.N.Y. 2001)............................................................ 8 Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971) ................................................................ 12 Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981).................................................................. 5 Mack v. Suffolk Co., 191 F.R.D. 16 (D. Mass. 2000) ..................................................... 5, 8 Maldonado v. Houstoun, 177 F.R.D. 311 (E.D. Pa. 1997) ............................................... 13 Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y.), aff’d, 2005 WL 3117194
(2d Cir. 2005)......................................................................................................... passim Marriott v. City of Motngomery, 426 F.Supp.2d 1 (N.D.N.Y. 2006)… ……………passim Martino v. County of Camden, No. Civ. 04-5300 (JBS), 2005 WL 1793718 (D. N.J. July
26, 2005) ....................................................................................................................... 10 Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) ............................. 4, 5, 14 Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977 (1989) ..... 5 McBean v. City of New York, 228 F.R.D. 487 (S.D. N.Y. 2005)........................................ 5 Monmouth County Correctional Inmates v. Lanzaro, 643 F.Supp. 1217 (D.N.J. 1986).. 15 Newkirk v. Sheers, 834 F.Supp. 772 (E.D. Pa. 1993) ............................................... 6, 9, 10 Nilsen v. York Co., 400 F.Supp. 2d 206 (D. Me. 2005) ...................................................... 5 Northern Penn. Legal Services, Inc. v. County of Lackawanna, 513 F. Supp. 678 (M.D.
Pa. 1981) ....................................................................................................................... 13
iii

O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429 (D.N.J. 1988) ...................... 7 Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978).......................................................... 15 Roberts v. State of Rhode Island, 239 F.3d 107 (1st Cir. 2001) .............................. 6, 11, 12 Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001) ............................................................ 6, 9, 12 Skundor v. McBride, 280 F.Supp.2d 524 (S.D.W.V. 2003)................................................ 9 St. Claire v. Cyler, 482 F.Supp. 257 (D.C. Pa. 1979)....................................................... 15 Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985) .................................................. 5 Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002)................... 4 Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989)....................................... 9 Thompson v. County of Cook, 412 F.Supp. 2d 881 (N.D. Ill. 2005)................................. 10 Turner v. Safley, 482 U.S. 78 (1897) .................................................................................. 9 United States Parole Commission v. Geraghty, 445 U.S. 338 (1980).............................. 16 United States v. Weikert, 421 F. Supp. 2d 259 (D. Mass. 2006) ...................................... 15 Walsh v. Franco, 849 F.2d 66 (2nd Cir. 1988) .................................................................. 12 Weber v. Dell, 804 F.2d 796 (2d Cir. 1986) ....................................................................... 5 Wood v. Hancock County Sheriff’s Dep’t., 354 F.3d 57 (1st Cir. 2003) ....................... 5, 14
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INTRODUCTION The plaintiffs, Nakisha Boone and George Byrd (together, “Plaintiffs”), like all individuals remanded to the custody of the Philadelphia Prison System (“PPS”), were subjected to strip and visual cavity searches upon their admission to PPS facilities, notwithstanding the fact that they were charged with misdemeanors or other minor offenses. The City of Philadelphia admits that it conducts blanket strip searches upon all pre-trial detainees remanded to the custody of the Philadelphia Prison System, regardless of criminal charge or reasonable suspicion. These searches could not be more degrading. All members of the proposed class are required to disrobe in front of a Corrections Officer, and are then required to bend or manipulate themselves to allow for a visual inspection of the genitals and body cavities. Under the City’s written strip search policy, these searches are to be done with a Corrections Officer using a flashlight to illuminate body cavities. The present situation cries out for the Court to issue a preliminary injunction to enjoin the illegal practices of the City of Philadelphia. Despite the filing of this action, compelling discovery taken by the Plaintiffs demonstrates that the City’s policy and practice of strip searching all individuals detained in PPS facilities continues nonetheless. Other federal courts, when faced with the same situation, have not hesitated to enter injunctions to protect the constitutional rights of pre-trial detainees. See, Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y.), aff’d, 2005 WL 3117194 (2d Cir. 2005) (class certification, preliminary injunction in strip search class action); Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006) (summary judgment and permanent injunction in favor of a certified class). Given the circumstances of this case,
1

where the City has not only violated but continues to violate the constitutional rights of thousands of individuals on a regular and consistent basis, Plaintiffs respectfully urge the Court to issue a preliminary injunction barring the City from continuing to strip search pretrial detainees admitted to the custody of PPS absent reasonable suspicion that the detainee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest. I. Procedural History
Plaintiffs hereby incorporate by reference the procedural history set forth in the Memorandum of Law in Support of Plaintiff’s Motion for Class Certification.
On February 23, 2007, after the filing of the class certification motion and with Court approval, Plaintiffs filed an amended complaint against the City naming George Byrd as the second named plaintiff and representative of the Class defined in the certification motion. For the reasons set forth herein, Plaintiffs submit this motion seeking a preliminary injunction barring the City from continuing to illegally strip search pretrial detainees admitted to the custody of PPS absent reasonable suspicion. II. Factual Background
The facts underlying this motion have been the subject of considerable briefing before the Court, and will only be summarized briefly here. A more thorough recitation of the facts relevant to this motion can be found in the Memorandum of Law in Support of the Plaintiffs’ Motion for Class Certification, and the prior briefing before the Court regarding the cross-motions for summary judgment. The City of Philadelphia has admitted in this proceeding, repeatedly, that it conducts uniform strip and visual body cavity searches upon all pretrial detainees admitted to the Philadelphia Prison System.
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These searches include forcing a detainee to disrobe in front of a Corrections Officer, and then manipulate themselves to allow for the visual inspection of their body parts and body cavities. Men have their genitals and anus subjected to a visual inspection. Women are subjected to a similar examination, and must also manipulate their breasts. Women are also forced to “squat” to see if any contraband discharges from their vagina. These searches are done on a uniform basis and in the absence of any individualized reasonable suspicion to believe that a detainee is harboring weapons or contraband.
The City’s written policies require these indiscriminate searches, and the City’s Rule 30(b)(6) deponent, Major James DiNubile, readily admits that this written policy is followed in PPS facilities. (PPS Search Policy, pp. 2, 6, 8 (Keach Aff., Ex. A); DiNubile Dep., pp. 65-66, 141-148, 178-180 (Keach Aff., Ex. B)). While the City has previously claimed that reasonable suspicion existed to strip search Nakisha Boone, the PPS written strip search policy and the City’s deponent confirm that the City does not consider whether reasonable suspicion exists to strip search detainees – all detainees are strip searched. (Id.)
As part of discovery in this action, the Plaintiffs have deposed multiple PPS Corrections Officers who have also confirmed that strip searches are conducted on a blanket basis in PPS facilities. Specifically, the Plaintiffs deposed the three Corrections Officers who were reported to be on duty at the time Plaintiff Nakisha Boone was admitted to the custody of the Philadelphia Prison System. All of these officers confirmed that everyone is subjected to a strip and visual cavity search upon admission to PPS regardless of reasonable suspicion or criminal charge, that the practice continues until today, and that no effort is made to determine the background of those being
3

searched. (Singleton Dep., pp. 38-42, 57-58, 68-69 (Keach Aff., Ex. C); Harold Dep., pp. 99-102, 123-24, 109-111 (Keach Aff., Ex. D); Sareem Bryant Dep., pp. 17-19 (Keach Aff., Ex. E)). A substantial minority of these detainees, namely those arrested on bench warrants, are strip searched prior to even seeing a hearing officer. (E.g., Harold Dep., pp. 117-18). The uniform manner in which these searches are conducted was best described by Corrections Officer Lorraine Singleton, who testified that there are: “No exception[s]. No discrimination to race, weight, height, repeat offender, new admit, the first time come [sic] in, there’s no discrimination.” (Singleton Dep., pp. 57-58).
In short, there is no dispute regarding the facts underlying this action. The City strip searches everyone pursuant to a uniform written policy and formal practice. The Plaintiffs maintain that this policy and practice violates the Fourth Amendment to the United States Constitution, and respectfully request that the Court enjoin the City from continuing to violate the constitutional rights of the Plaintiffs and the proposed class. III. Preliminary Injunctive Relief is Necessary to Safeguard the Constitutional
Rights of Individuals Admitted to PPS Facilities In order for a preliminary injunction to issue, Plaintiffs must establish the following elements:
(1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without relief… If factors one and two are established, the court must then consider factors three and four: (3) whether an injunction would harm the [defendants] more than denying relief would harm the plaintiffs and (4) whether granting relief would serve the public interest.
Bowers v. City of Philadelphia, 2007 U.S. Dist. Lexis 5804, *61 (E.D. Pa. Jan. 25, 2007) (internal quotation marks and citation omitted) (quoting Tenafly Eruv Ass’n, Inc. v.
4

Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)). Here, the Plaintiffs maintain that
they have established all of these elements, and that the Court should order the City to
cease illegally strip searching detainees admitted to the Philadelphia Prison System.
A. Plaintiffs are Likely to Prevail in this Litigation, As Federal Courts Have Universally Held that Blanket Jail Strip Search Policies are Unconstitutional When Applied to Individuals Charged with Misdemeanors or Other Minor Crimes
i. The City of Philadelphia’s Blanket Strip Search Policy, as Applied to Individuals Charged with Misdemeanors and Other Minor Crimes, is Patently Unconstitutional
The Fourth Amendment protects citizens against unreasonable searches and
seizures by the government. In the context of searches incident to criminal detention, the
United States Supreme Court held in Bell v. Wolfish, 441 U.S. 520 (1979), that
[t]he 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 of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Id. at 559. An examination of one’s naked body, especially someone’s anus and vagina,
clearly constitutes “an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). “[F]ew exercises of authority by the state…
intrude on a citizen’s privacy and dignity as severely as the visual anal and genital searches practiced here.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.
1983). In fact, the visual cavity searches in question here “could not have been more
degrading.” Ford v. City of Boston, 154 F.Supp. 2d 131, 133 (D. Mass. 2001) (Gertner,
D.J.)
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Circuit Courts, when considering the balancing test required by Wolfish, have
uniformly held that strip and visual cavity searches cannot be utilized against individuals
charged with, but not convicted of, minor crimes (misdemeanors, summary offenses,
arrests on bench warrants, etc.) in the absence of reasonable suspicion to believe a detainee is in possession of a weapon or contraband.1 See Wood v. Hancock County Sheriff’s Dep’t., 354 F.3d 57, 62 (1st Cir. 2003); Weber v. Dell, 804 F.2d 796, 801 (2d Cir. 1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir. 1985); Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977 (1989); Mary Beth G., 723 F.2d at 1273; Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir. 1993); Justice v. City of
Peachtree City, 961 F.2d 199, 193 (11 Cir. 1992). This is because “[r]equiring
particularized reasonable suspicion to strip search misdemeanant arrestees balances
institutional security needs with individual privacy, which includes a reasonable
expectation not to be unclothed involuntarily, to be observed unclothed or to have one’s
private parts observed or touched by others.” Wood, 354 F.3d at 62 (quotation marks
omitted).
1 Over twenty class actions have been successfully prosecuted regarding this practice, including several in major urban areas like Philadelphia. See Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y., aff’d, 2005 WL 3117194 (2d Cir. 2005) (certification in strip search class action litigated by co-lead counsel in this case); Kahler v. County of Rensselaer, No. 03-CV-1324 (TJM/DRH), 2005 WL 1981300 (N.D. N.Y. Aug. 17, 2005) (Troy, Rensselaer County, New York; settlement negotiated by co-lead counsel in this case); Dodge v. County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005) (Newburgh, Orange County, New York); McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005) (Rikers Island Detention Center, New York City); Haney v. Miami-Dade Co., No. 04-CV-20516-CIV, 2004 WL 2203418 (S.D. Fla. Aug. 24, 2004) (Miami-Dad County Jail); Mack v. Suffolk Co., 191 F.R.D. 16 (D. Mass. 2000) (Boston, Suffolk County, Massachusetts); Bynum v. District of Columbia, 384 F. Supp. 2d 342 (D. D.C. 2005) (Washington, District of Columbia); Nilsen v. York Co., 400 F.Supp. 2d 206 (D. Me. 2005) (summarizing settlements).
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Because Corrections Officers “should be able to detect contraband on the person of a detainee without the need for a body cavity inspection… the deterrent rationale for the Bell search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.” Roberts v. State of Rhode Island, 239 F.3d 107, 111 (1st Cir. 2001). This is especially true because the individuals in question are pretrial detainees who have not been convicted of a crime. The requirement of reasonable suspicion has been applied regardless of whether the misdemeanants in question were arraigned prior to being committed to a local jail.2 See, Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001); Newkirk, 834 F. Supp. at 788-90 (post-arraignment misdemeanor detainees at the Schuylkill County Jail).
The courts in this Judicial Circuit have reached a similar conclusion, including several judges of this Court and other courts in the judicial circuit. See e.g. Newkirk v. Sheers, 834 F.Supp. 772, 789-91 (E.D. Pa. 1993) (blanket strip searches at the Schuylkill county Jail found unconstitutional as against misdemeanor defendants; “It is beyond doubt that the officially adopted policy of Schuylkill county requiring all individuals admitted to [the] county Prison, including pretrial detainees, undergo strip and visual cavity searches, does not pass constitutional muster to the extent that the policy permits the indiscriminate strip search of a detainee without requiring a particularized reasonable suspicion that the detainee is concealing a weapon or harboring contraband or drugs.”); Duffy v. County of Bucks, 7 F.Supp. 2d 569, 580 (E.D. Pa. 1998) (“Policies permitting strip-searches of all inmates not based on concerns for institutional security or the
2 The fact that a detainee is intoxicated does not, in and of itself, establish reasonable suspicion to believe that a detainee is carrying weapons or other contraband. See, Dodge v. County of Orange, 209 F.R.D. 65, 77 (S.D. N.Y. 2002) (citing cases from other circuits reaching the same conclusion).
7

inmate’s criminal history have been held unconstitutional,” providing extensive
citations); Davis v. City of Camden, 657 F. Supp. 396, 400-01 (D. N.J. 1987) (strip
searches in Camden County Jail); O’Brien v. Borough of Woodbury Heights, 679 F.Supp.
429, 433 (D.N.J. 1988) (blanket strip search policy at the Gloucester County Jail).
District Courts from outside of the Third Circuit have also addressed blanket strip
search policies, and found them to be unconstitutional. The District of Massachusetts,
when faced with a motion for summary judgment brought by a similarly situated female
plaintiff and a proposed class of women subjected to a uniform strip search at the Suffolk
County Jail in Boston, granted summary judgment and held that
[a]n indiscriminate strip-search policy routinely applied… cannot be justified simply on the basis of administrative ease in attending to security considerations… While I understand the County’s concern over institutional security, that concern does not excuse the county’s decision to require the women in the plaintiff class – many of whom had yet to see a judge – to endure the indignities of a strip and visual body cavity search.
Ford, 154 F. Supp. 2d at 142. The United States District Court for the Northern District
of New York, when faced with a motion for injunctive relief, has done the same. See
Marriott, 227 F.R.D. at 168-69, 174. Thus, the City’s strip search policy is
unconstitutional.
ii. The City of Philadelphia Cannot Now Manufacture Reasonable Suspicion When All Members of the Proposed Class Were Stripped Searched Through a Uniform Strip Search Policy.
To the extent the City plans, after the fact, to manufacture reasonable suspicion to
strip search Ms. Boone, Mr. Byrd, or other detainees, they cannot do so in light of their
admission that every individual admitted to the PPS is strip searched regardless of
8

reasonable suspicion. As “the burden rests of Defendants to demonstrate that particular searches were reasonable,” to “require Plaintiff[s] to prove that each individual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair.” Mack v. County of Suffolk, 191 F.R.D. 16, 24 (D. Mass. 2000); see also, Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304, 309 (N.D.N.Y. 2001 (effort to establish reasonable suspicion after admitting blanket strip searches “defies logic and, frankly, is absurd”); Davis v. City of Camden, 657 F.Supp. 396, 401 (D. N.J. 1987) (“[W]hen an arrestee charged with a felony or a misdemeanor involving weapons or contraband is strip searched pursuant to a policy encompassing all arrestees, regardless of the nature of their offenses, and where it is conceded that no suspicion regarding the particular arrestee existed, the requisite justification for the search is lacking; neither the general policy nor its particular application is supportable.”) (emphasis in original); Dodge v. County of Orange, 226 F.R.D. 177, 182 (S.D.N.Y. 2005) (“If individualized assessments were in fact not made, then all the searches were illegal, because each new arrival was constitutionally entitled to an individualized assessment of his or her circumstances… [T]he fact that a particular class member could have been lawfully strip searched if [the correctional facility] had made the constitutionally required assessment is a defense to a particular class member’s claim for damages, not a defense to the class-wide claim that the County searched everyone without making any assessment at all.”); Calvin v. Sheriff of Will County, 2004 WL 1125922, *4 (N.D. Ill. May 17, 2004) (“the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriff’s policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment
9

rights.”); Lee v. Perez, 175 F. Supp.2d 673, 679 (S.D.N.Y. 2001); Doe v. Calumet City,
754 F.Supp. 1211, 1221 n. 23 (N.D. Ill. 1990) (the City “cannot justify post-hoc an
unreasonable intrusion without showing that each officer involved had such a reasonable
basis at the time of the search… [I]n the absence of [a] specific policy [providing
guidelines for establishing reasonable suspicion, the] City cannot now manufacture bases
in an effort to legitimatize the strip searches that were inflicted on plaintiffs.”). Thus,
since no effort was made to determine at their entrance whether reasonable suspicion
existed, the City is estopped from arguing it now.
iii. Protecting the Security Interests of a Local Jail Does Not Justify the Uniform Strip Search Policy.
The City will assert that strip searching all pretrial detainees is necessary to
protect against the admission of drugs and weapons into the prison. The City’s blanket
strip search policy is clearly unreasonable under the standards enunciated in Bell.3 As an
initial mater, this issue has already been addressed by the Eastern District of
Pennsylvania. In Newkirk, Senior Judge Van Antwerpren assessed the constitutionality
of strip search policies at the Schuylkill County Prison. The detainees in question were
post-arraignment detainees who were subjected to strip searches upon admission to a
local jail because they could not, or would not, make bail. In a thorough and well-
3 The City’s prior contention, made in response to the motion for summary judgment previously filed in this action, that the United States Supreme Court decision in Turner v. Safley, 482 U.S. 78 (1997), somehow overrules the balancing testing provided by the Supreme Court in Bell, is likewise without merit. See, Foote v. Spiegel, 995 F.Supp. 1347, 1359 n.2 (D. Utah. 1998) (“Because the Fourth Amendment test is already one of reasonableness under the circumstances, the court finds that the Bell factors, formulated specifically for use in the Fourth Amendment context, are more appropriate for use in this [blanket strip search case] than the factors promulgated in Turner”); Shain v. Ellison, 273 F.3d 56, 65-66 (2d Cir. 2001) (holding that Turner does not apply to local correctional facilities); Jordan v. Gardner, 986 F.2d 1521, 1540 (9th Cir. 1993) (en banc) (concurring opinion) (“If we say that any legitimate penological interest, no matter how minor, requires us to find that a prison’s policy is valid, then we cannot find any policy invalid, because a prison will rarely if ever adopt a policy that lacks even a colorable claim of validity. Rather, a prison policy must be invalidated if, after giving due deference to the knowledge and experience of prison administrators, we find that the constitutional infringement outweighs the prison’s legitimate penological interests[;]” utilizing Bell to evaluate cross-gender strip searches) (emphasis supplied).
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reasoned opinion, Judge Van Antwerpen considered the case authority from other
circuits, much of which is provided in Plaintiffs’ brief, and unequivocally ruled that
Schuylkill County’s blanket strip policy was unconstitutional. The Court held:
While the need to ensure prison security is a legitimate and substantial concern, we believe that, on the facts here, the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs’ privacy interests, the searches cannot be deemed ‘reasonable’… Based on these principles, and a balancing of the factors in Bell, we are compelled to find that ensuring the security needs of the Schuylkill County Prison by strip searching g plaintiffs was unreasonable without a particularized suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed.
Newkirk, 834 F. Supp. at 789-90. Although the plaintiffs in Newkirk “were placed into
contact with the general prison population, such a factor by itself cannot justify a strip
search.” Id. at 789. The Court concluded by holding that “[t]he feelings of humiliation
and degradation associated with being forced to expose one’s nude body to strangers for
visual inspection is beyond dispute.” Id.; see also, Thompson v. County of Cook, 412
F.Supp. 2d 881, 889-90 (N.D. Ill. 2005); Martino v. County of Camden, No. Civ. 04-5300
(JBS), 2005 WL 1793718, *12 (D. N.J. July 26, 2005).
In fact, during the course of preparing this case, Defendants performed a thorough
investigation of incident reports maintained by the Philadelphia Prison System to
determine the actual risk of contraband entering PPS facilities. Lieutenant Edward
Bender was initially asked by the City to identify all inmates who were found guilty of
disciplinary charges for having contraband. (Bender Dep., p. 50 (Keach Aff., Ex. F)).
Lt. Bender then narrowed his search to include only those inmates who were found guilty
of such charges within four days of entering prison facilities. (Id. at 50-51). For the years
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2000-2006, Lieutenant Bender identified 131 individuals who fit these specifications. (Id. at p. 64). The Defendant, in its response to Nakisha Boone’s Motion for Summary Judgment, found that of those 131 pre-trial detainees that were found to have contraband within four to five days of entering the prison system, only seven were charged with misdemeanor charges and were found to have drugs or weapons in their possession. See Defendants’ Brief in Support of Mtn. for Summary Judg., at 21-23. While the Plaintiffs have not been able to precisely identify the number of misdemeanor admissions during this time period, they have previously estimated that the City admitted 70,000 misdemeanor detainees to PPS from 2000 through 2006. Of these seven (out of 70,000), five were detained on drugs charges, while the other two had extensive criminal histories. Thus, under a policy employing the reasonable suspicion standard, these individuals would likely have been strip searched anyway.
The Defendant has not demonstrated any security need to require uniform strip searches. Roberts v. State of Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001); Ford v. City of Boston, 154 F. Supp. 2d 131, 137 (D. Mass. 2001) (contraband discovered “five times,” or 0.063 percent of the time, during admissions to Suffolk County Jail); John Does, 613 F. Supp. 1514, 1522 (D. Minn. 1985) (“plaintiffs make persuasive statistical argument that the possession of contraband by new detainees at the jail is at worst an isolated problem”). The reason why so few detainees are caught with contraband at this stage during their arrest and detention is because “it is far less likely that smuggling of contraband will occur subsequent to arrest…given the essentially unplanned nature of an arrest and subsequent incarceration.” Roberts, 239 F.3d at 111.
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iv. The City of Philadelphia’s Policy of Intermingling Pretrial Detainees With Convicted Detainees is Not a Justification for its Uniform Strip Search Policy.
The City asserts intermingling pre-trial detainees with convicted prisoners justifies their uniform strip search policy. “Several courts, including many courts of appeal, however, have held that intermingling alone is insufficient to justify a [strip] search without reasonable suspicion.” Calvin, 405 F. Supp. 2d at 943. Several other cases detailed in this brief, including Roberts from the First Circuit and Shain from the Second, have reached this identical conclusion. See also, Chapman v. Nichols, 989 F. 2d 393, 394-397 (10th cir. 1993); Walsh v. Franco, 849 F.2d 66, 68 (2nd Cir. 1988) (blanket strip searching is not expectable merely because intermingling existed); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. Denied, 471 U.S. 1053 (1985) (because a detainee was intermingling with a prison population does not, by itself, justify strip search as such intermingling is “both limited and avoidable”). Thus, the City’s intermingling policy does not justify its use of a uniform strip search policy.
B. Plaintiffs and Members of the Putative Class are Likely to Suffer Irreparable Injury Without Injunctive Relief
As demonstrated above, Plaintiffs are substantially likely to prevail upon their claim that the constitutional rights of detainees admitted to PPS facilities have been violated. The violation of a constitutional right constitutes irreparable harm which justifies injunctive relief. Bowers v. City of Philadelphia, 2007 U.S. Dist. Lexis 5804, *92-93 (E.D. Pa. Jan. 25, 2007) (in a certified class action alleging unconstitutional conditions of confinement at PPS facilities, the court found that irreparable harm would result absent preliminary injunctive relief notwithstanding the fact that the named plaintiffs were no longer pretrial detainees enduring the conditions alleged in the
13

complaint); Lewis v. Kugler, 446 F.2d 1343, 1350 (3d Cir. 1971) (“Persons who can establish that they are being denied their constitutional rights are entitled to relief, and it can no longer be seriously contended that an action for money damages will serve adequately to remedy unconstitutional searches and seizures.”); Maldonado v. Houstoun, 177 F.R.D. 311, 333 (E.D. Pa. 1997) (“Plaintiffs can demonstrate irreparable harm based on the sole fact that they will be deprived of their constitutional right to the equal protection of law in the absence of an injunction.”); Northern Penn. Legal Services, Inc. v. County of Lackawanna, 513 F. Supp. 678, 685 (M.D. Pa. 1981) (“Violations of a litigant's constitutional rights constitute "irreparable harm" per se. No other injury is required for an injunction provided that the other necessary ingredients to relief are present.”); Marriott, 227 F.R.D. at 174 (“The plaintiffs allege violation of a constitutional right. Therefore, irreparable harm is established.”).
C. Failure to Grant Injunctive Relief Would Cause Substantial Harm to Plaintiffs and the Class
The balance of the hardships clearly weighs in favor of granting injunctive relief in this case, where individuals’ constitutional rights are routinely being violated by the City. See Bowers, 2007 U.S. Dist. Lexis 5804 at *92-93 (granting motion for preliminary injunctive relief and finding that “it is abundantly clear that an injunction requiring the City [of Philadelphia] to meet basic constitutional standards for the detention of pretrial arrestees would not harm Defendants more than denying relief would harm Plaintiffs. The only harm to Defendants is the cost associated with providing conditions of detention that pass constitutional muster while the cost to Plaintiffs, denial of constitutional rights, is far greater.”). The potential of security risks to PPS facilities, which is limited by PPS’ admission that very few detainees admitted to their facilities had contraband secreted in a
14

body cavity, is significantly outweighed by the serious privacy interests that are intruded upon in connection with the indignity of a strip search. This point has been consistently articulated by courts applying the Wolfish balancing test and holding that individuals detained on misdemeanor charges may only be strip searched if reasonable suspicion exists to believe the detainee is armed or carrying contraband. See e.g., Wood, 354 F.3d at 62 (“we have recognized that strip searches are intrusive and degrading and, therefore, should not be unreservedly available to law enforcement officers”) (internal quotation marks omitted); Mary Beth G. v. Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983) (“While the need to assure jail security is a legitimate and substantial concern, we believe that, on the facts here, the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs-appellees' privacy interests, the searches cannot be considered "reasonable."); Dodge v. County of Orange, 282 F. Supp. 2d 41, 86 (D.N.Y. 2003) (granting permanent injunction enjoining unconstitutional strip search policies at county jail and noting that “[h]aving one's constitutional rights violated is, a priori, a substantial hardship. Moreover, the nature of this particular constitutional violation, being strip searched, represents a serious intrusion that is often humiliating, even when performed in the most professional manner.”).
What is more, the narrow scope of the injunctive relief sought here takes security risks into account inasmuch as the requested "injunction does no more than require the police to abide by constitutional requirements." Allee v. Medrano, 416 U.S. 802, 814 (1974). Correctional Officers may, in other words, continue to strip search individuals as long as they make the necessary evaluation in order to determine that there is reason to believe those individuals are carrying contraband. The officers can look at the nature of
15

criminal charges, the past criminal history of the detainee, the personal circumstances of the detainee, or any number of other factors to establish individualized reasonable suspicion to search. The only limitation which would be placed upon Correctional Officers by the injunctive relief requested is that detainees could not be strip searched automatically.
D. Granting Relief Would Serve the Public Interest There is no doubt that a significant public interest would be served by protecting the constitutional rights of Plaintiffs and the Class. St. Claire v. Cyler, 482 F.Supp. 257, 260 (D.C. Pa. 1979) (administering a prison under constitutional principals serves public purpose); Monmouth County Correctional Inmates v. Lanzaro, 643 F.Supp. 1217, 1228 (D.N.J. 1986). See e.g. Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) ("The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.”); United States v. Weikert, 421 F. Supp. 2d 259, 271 (D. Mass. 2006) (“the public interest in fact favors the granting of the preliminary injunction since the public has a significant interest in upholding the protections of the Fourth Amendment.”); Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929, 951 (D. Mo. 2004) (“It is not in the public's interest to allow police and other officials to engage in a pattern of constitutional violations.”). To that end, a preliminary injunction should be issued. IV. Plaintiffs Have Standing to Seek Injunctive Relief The City has previously raised the issue of Ms. Boone’s standing in this litigation, claiming that she “has not alleged and cannot credibly allege that she reasonably can anticipate again being arrested and, even if she were arrested, eventually being
16

transported to the Prisons.” Defs.’ Mem. Law Supp. Summ. J. at 39. This exact
argument has, however, already been addressed and rejected by Judge Surrick in Bowers
v. City of Philadelphia, a similar case filed to redress constitutional violations occurring
within the PPS.
Like the present lawsuit, Bowers was brought as a putative class action on behalf
of pre-trial detainees in the PPS. The plaintiffs there allege the existence
of severe prison overcrowding and concomitant dangerous, unhealthy and degrading conditions. Plaintiffs allege that these conditions and the policies and practices of Defendants violate the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that they are pre-trial detainees who, due to severe overcrowding and lack of adequate facilities, are held at police districts, the Police Administration Building, or at intake units of the PPS.
Bowers, 2006 U.S. Dist. Lexis 71814, *2-3 (E.D. Pa. Sept. 28. 2006). In the context of
addressing the plaintiffs’ class certification motion, the Court in Bowers rejected the
City’s argument that the plaintiffs lacked individual standing to seek injunctive and
declaratory relief. Citing Gerstein v. Pugh, 420 U.S. 103 (1975) and United States
Parole Commission v. Geraghty, 445 U.S. 338 (1980), the Court referenced an exception
to the mootness doctrine which “exist[s] to address short-term harms that would
otherwise evade judicial review.” Bowers, 2006 U.S. Dist. Lexis 71814, *21. Judge
Surrick held that:
This case belongs… to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other
17

persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”
Id. (quoting Gerstein, 420 U.S. at 111 n. 11). Concluding that the plaintiffs did, in fact,
have standing to bring the class action for injunctive and declaratory relief, the Court
stated:
Given that Plaintiffs allege severe prison overcrowding and dangerous, unhealthy, and degrading conditions and given that it is certain that other pretrial detainees are currently and will in the future be detained under the allegedly unconstitutional conditions, this case certainly belongs to the class of cases for which an exception to mootness must be made.
Bowers, 2006 U.S. Dist. Lexis 71914, *23-24.
Later in the litigation, Judge Surrick considered a “slightly different” version of
the City’s standing argument in the context of the plaintiffs’ motion for a preliminary
injunction. Bowers v. City of Philadelphia, 2007 U.S. Dist. Lexis 5804, *95 (E.D. Pa.
Jan. 25, 2007). Within that framework, the City contended that the plaintiffs lacked
standing and the Court lacked jurisdiction because at the time the complaint was filed,
“no named plaintiff or class representative had a live claim in that no named plaintiff was
in the custody of either Police Department holding cells or CFCF intake at that time.”
Bowers v. City of Philadelphia, 2007 U.S. Dist. Lexis 5804 at *95.
As an initial matter, the Court concluded that the named plaintiff, held in
quarantine at the time the lawsuit was filed, did in fact have standing to pursue injunctive
relief at the commencement of the suit. Id., 2007 U.S. Dist. Lexis 5804 at * 98.
Significantly, the Court further held that even if the named plaintiff’s presence in
quarantine had not provided him with standing to sue, two additional grounds existed
18

establishing both standing and jurisdiction. First, the detainee Class members “had no meaningful ability to request counsel visits or demand the right to file a complaint in federal court” during the course of their detention. Id., 2007 U.S. Dist. Lexis 5804 at *102. Thus, it would have been impossible for the plaintiffs to file suit while they were detained in PPS facilities. Also, the Court concluded that due to recidivism rates of the named plaintiffs, the case presents a situation which is “capable of repletion, yet evading review.” Id., 2007 U.S. Dist. Lexis 5804 at *102; see also City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (doctrine “applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.”); Marriott v. County of Montgomery 227 F.R.D. 159, 174 (N.D.N.Y. 2005) (Pretrial detainees had standing to bring preliminary injunction claims for unlawful strip search policy of prison). For these reasons, Judge Surrick concluded that the plaintiffs had standing to pursue injunctive relief and that the Court’s jurisdiction was intact.
The same rationale applied by Judge Surrick in the decisions issued in Bowers should apply under these circumstances. Where, as here, there can be no doubt that other pretrial detainees are currently and will in the future be subjected to unlawful strip searches in PPS facilities, the standing of the named plaintiffs to seek injunctive and declaratory relief to correct the unconstitutional treatment of pretrial detainees held in PPS facilities is obvious.
19

IV. Conclusion For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion for a Preliminary Injunction and issue the proposed order attached hereto.
Respectfully submitted by:

Dated: March 23, 2007

/s

_______________________________

Daniel C. Levin, Esquire

Identification No. 80013

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Ste. 500

Philadelphia, PA 19106

Telephone:

215-592-1500

Telecopier:

215-592-4663

Electronic Mail: dlevin@lfsblaw.com

Elmer Robert

Digitally signed by Elmer Robert Keach, III DN: CN = Elmer Robert Keach, III, C = US, O = Law Offices of Elmer Robert Keach, III,

Keach, III

PC, OU = Admitted Pro Haec Vice Date: 2007.03.23 19:55:28 -04'00'

___________________________________

Elmer Robert Keach, III, Esquire

LAW OFFICES OF

ELMER ROBERT KEACH, III, PC

1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

Telephone:

518.434.1718

Telecopier:

518.770.1558

Electronic Mail:

bobkeach@keachlaw.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

Alexandra C. Warren, Esquire

Identification No. 93651

CUNEO GILBERT & LADUCA, LLP

507 C Street, N.E.

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

20

Gary E. Mason, Esquire

Nicholas Migliaccio, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Laura Feldman, Esquire Identification No. 49459 FELDMAN & PINTO 1604 Locust St., 2R Philadelphia, PA 19103 Telephone: 215-546-2604 Telecopier: 215-592-4663 Electronic Mail: LFeldman@FeldmanPinto.com

Christopher G. Hayes, Esquire Identification No. 57253 115 East Chestnut Street, 2nd Floor West Chester, PA 19380 Telephone: 610-431-9505 Telecopier: 610-431-1269 Electronic Mail: CHayes@FeldmanPinto.com

Kevin Birley, Esquire Ostriat & Associates, LLC 1800 John F. Kennedy Blvd. Suite 300 Philadelphia, PA 19103

ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS

21

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NAKISHA BOONE and GEORGE BYRD, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
go
CITY OF PHILADELPHIA,
Defendant.

Civil Action Number: 05-CV- 1851 JURY TRIAL DEMANDED

FIRST AMENDED CLASS ACTION COMPLAINT INTRODUCTION This is a class action brought to redress the deprivation by Defendant of rights secured to the Plaintiffs and proposed Class by the United States Constitution and the laws of the United States of America. For at least the past 10 years, the Philadelphia Prison Systems ("PPS") has had a policy of strip-searching all individuals who enter the City of Philadelphia’s jail facilities and are placed into jail clothing, regardless of the crime upon which they are charged. Upon information and belief, this policy is, in part, derived from the written procedures of the PPS, and was promulgated by the City of Philadelphia. It has been well established that individuals charged with misdemeanors or summary offenses cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In short, the policy of PPS and the City of to force those charged with minor crimes to undergo the indignities of a strip search upon entry into their jail facilities is not only clearly illegal, but is insensitive and unnecessary.

Nakisha Boone and George Byrd ("Plaintiffs") bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. These individuals were charged with misdemeanor offenses and were subjected to a strip search, in violation of their rights against unreasonable searches under the Fourth Amendment of the United States Constitution. Plaintiffs seek monetary damages for themselves and for each member of the proposed class, a declaration that City of Philadelphia’s policies are unconstitutional, and an injunction precluding City of Philadelphia and the PPS from continuing to violate the rights of those placed into their custody. With this as a background, Plaintiffs, Nakisha Boone and George Byrd complain as follows: II. JURISDICTION
This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government.
1. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.

III. PARTIES 2. Plaintiff Nakisha Boone resides at 308North Redfield Street,
Philadelphia, PA 19139. On November 13, 2004, Ms.Boone was detained on misdemeanor charges - a bench warrant relative to a 1998 misdemeanor charge of endangering the welfare of a child - following a traffic stop by the Philadelphia Police Department. Ms. Boone was transported to the Riverside Correctional Facility ("RCF") the following day. As a result of this detention, Ms. Boone was strip searched during the booking process at RCF. Specifically, she was required to remove all her clothes and squat before a Corrections Officer. She was also forced to bend over and spread the lobes of her buttocks. The six year old criminal charges upon which Ms. Boone was detained were later dismissed by the Philadelphia City Municipal Court.
3. Plaintiff, George Byrd resides at 5 Landbourn Path, Sewell, NJ 08080. On April 2, 2005, Mr. Byrd was detained on misdemeanor charges relating to driving under the influence of the alcohol. Mr. Byrd was transported to the Philadelphia Prison System. As a result of his detention, Mr. Byrd was strip searched during his booking process. Specifically, he was required to move all clothes and squat before a Corrections Officer.
4. Defendant City of Philadelphia is a Municipality located in Pennsylvania. Defendant, City of Philadelphia, is responsible for enacting uniform policies and overseeing the PPS. At all times relevant hereto, Defendant City of Philadelphia was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the PPS and was responsible for the appointment, training, supervision and conduct of all personnel including those working for the PPS. In

addition, at all times relevant hereto, Defendant, together with the PPS, was responsible
for enforcing the rules of the PPS.
IV. CLASS ACTION ALLEGATIONS 5. Plaintiffs bring this action pursuant to Rules 23(b)(2) and 23(b)(3) of the
Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated
individuals who were charged with misdemeanors or minor crimes and were strip
searched upon their entry into the PPS. 6. The class that Plaintiffs seek to represent is defined as follows: All persons who have been or will be placed into the custody of the PPS after being charged with misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the PPS and the City of Philadelphia. The class period commences on April 21, 2003 and extends to the present or until the defendants are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendant and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 7. This action has been brought and may properly be maintained as a class
action under Federal law and satisfies the numerosity, commonality, typicality and
adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
8. The members of the class are so numerous as to render joinder impracticable. Upon information and belief, there are hundreds of people arrested for
misdemeanors and summary offenses who are placed into the custody of the PPS every
month - all of whom are members of the proposed class. Upon information and belief,
4

the size of the proposed class totals at least 30,000 individuals, some of whom have had their civil rights violated on multiple occasions.
9. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of class members and the fact that class members are likely dispersed over a large geographical area, with some members presently residing outside of Philadelphia County and this Judicial District. Furthermore, upon information and belief, many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
10. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches violated by Defendants conducting strip searches absent particularized suspicion. All members of the class were charged with misdemeanors or violations when placed into the custody of the PPS, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
11. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members.
12. The representative Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.

13. Plaintiffs have retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. The named Plaintiff is being represented by Daniel C. Levin of Levin, Fishbein, Sedran & Berman; Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, PC; Gary E. Mason and Alexander Barnett of The Mason Law Firm, PLLC; Jonathan Cuneo and Charles LaDuca of Cuneo, Gilbert and LaDuca, LLP; Christopher Hayes, Law Offices of Christopher Hayes, Laura Feldman of Feldman & Pinto, and Kevin Birley of Ostriat Associates, LLC. Proposed Class Counsel has significant experience in class actions and civil rights litigation.
14. In short, Plaintiffs’ counsel has the resources, expertise and experience to successfully prosecute this action against the Defendant. Counsel for Plaintiff knows of no conflicts among members of the class, or between counsel and members of the class.
15. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to the same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and placed into the custody of the PPS. In short, the PPS acted on grounds generally applicable to all class members.
16. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
17. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendant’s written and/or de facto policy of strip
6

searching all individuals charged with misdemeanors or minor crimes and committed to the PPS is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
18. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
19. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for at least the past 10 years.
20. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).

FACTS Facts Applicable to the Class Generally
21. The Fourth Amendment of the United States Constitution prohibits government agencies and state officials, such as the Defendant in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless there is a reasonable suspicion to believe that the arrestee is concealing a weapon or contraband.
22. The City of Philadelphia, has instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the PPS and are placed into jail clothing, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband.
23. The City of Philadelphia, has instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) and strip searches (involving the removal of clothing for a visual inspection) on all individuals who enter their custody, regardless of the individual characteristics or the nature of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as "strip searches."
24. The City of Philadelphia knows that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. This Court and the Federal Courts of Appeal have stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion.

25. The Defendant’s written and/or de facto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
26. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
27. The City of Philadelphia has promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching all individuals placed into the custody of the PPS and placed into jail clothing without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
28. Pursuant to this written and/or de facto policy, each member of the Class, including every named Plaintiff, was the victim of a routine strip search upon their entry into the Philadelphia Prison System. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
29. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches -
9

each member of the class, including every named Plaintiff- has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs A. Nakisha Boone 30. Ms. Boone’s experience is representative. On or about October 22, 2004 at approximately 6:30 PM, Plaintiff Nakisha Boone was arrested on a bench warrant relative to a criminal charge originally prosecuted against her in 1998. The charge in question, endangering the welfare of a child, is a first degree misdemeanor under 18 P.C.S.A. § 4304. Ms. Boone’s arrest occurred after she was stopped for a traffic violation. The circumstances of her criminal chares are that she is alleged to have left her children alone, thereby endangering their welfare. The misdemeanor criminal charges pending against her were later dismissed. 31. The following morning, Ms. Boone was transported to the Riverside Correctional Facility, a component facility of the Philadelphia Prison System, and was booked into the facility. Approximately 24 hours later, Ms. Boone was moved into a room in the booking area of RCF and ordered to remove her clothing. Ms. Boone was then instructed to "squat and cough," and then to bend over and spread the lobes of her buttocks to allow for a visual examination of her vagina and anus. Ms. Boone was then provided with a jail uniform. 32. On this particular occasion, there was no reasonable suspicion to believe that Ms. Boone was concealing a weapon or other contraband. Indeed, no inquiry was made of Ms. Boone that could have given rise to the requisite reasonable suspicion necessary to conduct a strip search.
10

33. 34. As a direct and proximate result of the unlawful strip search conducted pursuant to the Defendants’ policy, practice and custom, Plaintiff has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
B~ George Byrd 35. Mr. Byrd’s experience is representative of the class. On April 2, 2005, Mr. Byrd was strip searched at the Philadelphia Prison System. The charge in question was driving under the influence. Mr. Byrd’s arrest occurred after he was stopped in his car where he was parked on the side of the road. The misdemeanor criminal charges pending against him were later dismissed. 36. Mr. Byrd was transferred to the Philadelphia Prison System where he was booked into the facility. Mr. Byrd was instructed to squat and cough and then bend over and spread the lobes of his buttocks to allow visual examination. Mr. Byrd was then provided a jail uniform. 37. On this particular occasion, there was no reasonable suspicion to believe that Mr. Byrd was concealing a weapon or other contraband. Indeed, no inquiry was made to Mr. Byrd that could have given rise to the requisite reasonable suspicion necessary to conduct a strip search. 38. As a direct and proximate result of the unlawful strip search conducted pursuant to Defendant’s policy, practice and custom, Plaintiff, George Byrd has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
11

VI. CAUSES OF ACTION A FIRST CAUSE OF ACTION AGAINST DEFENDANT
-- Unreasonable Search and Failure to Implement Municipal Policies to Avoid Constitutional Deprivations Under of Color of State Law --
39. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 38.
40. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.
41. The actions of Defendant detailed above violated Plaintiffs’ rights under the United States Constitution. Simply put, it was not objectively reasonable for the City of Philadelphia to strip search Plaintiffs and class members based on their arrests for misdemeanor or other minor criminal charges.
42. These strip searches were conducted pursuant to the policy, custom or practice of the City of Philadelphia. As such, the City of Philadelphia is directly liable for the damages of the named Plaintiff and members of the Class.
43. Upon information and belief, City of Philadelphia is responsible for establishing the policies and procedures to be utilized in the operation of the PPS, and is responsible for the implementation of the strip search policy questioned in this lawsuit. As such, the Defendant is responsible for the damages of the named Plaintiffs and members of the Class.
12

44. The Defendant knew that the strip search policy, practice or custom was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and members of the Class of their Constitutional rights.
45. This conduct on the part of the City of Philadelphia represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
46. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and members of the proposed class have been irreparably injured.
A SECOND CAUSE OF ACTION AGAINST DEFENDANT -- Demand for Declaratory Judgment --
47. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 46.
48. The policy, custom and practice of the City of Philadelphia is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the PPS without any particularized suspicion that the individuals in question have either contraband or weapons.
49. Plaintiffs and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Philadelphia to be unconstitutional.
A THIRD CAUSE OF ACTION AGAINST DEFENDANT -- Demand for Preliminary and Permanent Injunction -50. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 49.
13

51. The policy, custom and practice of the City of Philadelphia is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the PPS without any particularized suspicion that the individuals in question have either contraband or weapons.
52. Upon information and belief, this policy is currently in place at the PPS, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs.
53. The continuing pattern of strip searching individuals charged with minor crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
54. Plaintiffs demand that the City of Philadelphia immediately desist from strip searching individuals placed into the custody of the Philadelphia Prison System absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much. VII. DEMAND FOR TRIAL BY JURY
57. The Plaintiffs hereby demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Nakisha Boone and George Byrd, on behalf of themselves and on behalf of a class of others similarly situated, requests that this Honorable Court grant them the following relief:
14

A. An order certifying this action as a class action pursuant to Fed.R.Civ.P. 23.
B. A judgment against Defendant on Plaintiffs’ First Cause of Action detailed herein, awarding Compensatory and Punitive Damages to the named Plaintiff and each member of the proposed class in an amount to be determined by a Jury and/or the Court on both an individual and a class wide basis.
C. A declaratory judgment against Defendant declaring the City of Philadelphia and the PPS’ policy, practice and custom of strip and visual cavity searching all detainees entering the system, regardless of the crime charged or reasonable suspicion of contraband, to be unconstitutional and improper.
D. A preliminary and permanent injunction enjoining Defendant from continuing to strip and visual cavity search individuals charged with misdemeanors or minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband.
E. A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23;
Respectfully submitted by..;,.~

Dated: c~/9- -~/0 "]

Daniel C. L~vin. Esq~uire ([j/

Id No.: 80013

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Ste. 500

Philadelphia, PA 19106

Telephone:

215-592-1500

Telecopier:

215-592-4663

Electronic Mail: dlevin@lfsblaw.com

15

Elmer Robert Keach, III, Esquire

LAW OFFICES OF

ELMER ROBERT KEACH, III, PC 1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

Telephone: Telecopier:

518.434.1718 518.770.1558

Electronic Mail: bobkeach@keachlaw.com

Gary E. Mason, Esquire

Alexander Barnett, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

CUNEO, GILBERT & LADUCA, LLP

507 C Street, NE

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

Laura Feldman, Esquire Identification No. 49459 FELDMAN & PINTO 1604 Locust St., 2R Philadelphia, PA 19103 Telephone: 215-546-2604 Telecopier: 215-592-4663 Electronic Mail: LFeldman@FeldmanPinto.com

Christopher G. Hayes, Esquire Identification No. 57253 115 East Chestnut Street, 2nd Floor West Chester, PA 19380 Telephone: 610-431-9505 Telecopier: 610-431-1269

16

Electronic Mail: CHayes@FeldmanPinto.com Kevin Birley, Esquire Ostriat & Associates, LLC 1800 John F. Kennedy Blvd. Suite 300 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS
17

CERTIFICATE OF SERVICE I certify that a true and correct copy of the Amended Plaintiffs’ Class Action Complaint was served on this 23rd day of February, 2007 via first class mail upon defense counsel at the following addresses: Mark Maguire, Esquire City of Philadelphia Law Department One Parkway 1515 Arch Street 14t~ Floor Philadelphia, PA 19102
Daniel C. Levin, Esquire

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

NAKISHA BOONE, both individually and :

on behalf of a class of others similarly

:

situated,

:

:

Plaintiff,

:

:

v.

:

:

THE CITY OF PHILADELPHIA, et. al., :

:

Defendants.

:

____________________________________:

No. 05-cv-1851 (MAM)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Respectfully Submitted by:

Dated: February 16, 2007 Id Levin, 510 Philadelphia, Telephone: Telecopier: Electronic
Elm
ELMER 1040 Post Am Telephone: Telecopier:

Daniel C. Levin, Esquire No.: 80013 Fishbein, Sedran & Berman Walnut Street, Ste. 500 PA 19106 215-592-1500 215-592-4663 Mail: dlevin@lfsblaw.com
er Robert Keach, III, Esquire LAW OFFICES OF
ROBERT KEACH, III, PC Riverfront Center Office Box 70 sterdam, NY 12010
518.434.1718 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com

Laura Identification 1604 Philadelphia,
LFeldm Christopher Identification 115 West
CHayes@Feldm
Ostria 1800 Suite Philadelphia,

Gary E. Mason, Esquire

Charles Schneider, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

CUNEO WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E.

Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

Feldman, Esquire No. 49459
FELDMAN & PINTO Locust St., 2R PA 19103
Telephone: 215-546-2604 Telecopier: 215-592-4663 Electronic Mail:
an@FeldmanPinto.com

G. Hayes, Esquire No. 57253
East Chestnut Street, 2nd Floor Chester, PA 19380
Telephone: 610-431-9505 Telecopier: 610-431-1269 Electronic Mail:
anPinto.com

Kevin Birley, Esquire t & Associates, LLC John F. Kennedy Blvd. 300 PA 19103

ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS

TABLE OF CONTENTS
TABLE OF AUTHORITES……………………………………………………………...iii
INTRODUCTION………………………………………………………………………...1
I. PROCEDURAL HISTORY……………………………………………………………2
II. FACTUAL BACKGROUND…………………………………………………………3
A. Nakisha Boone’s Arrest and Strip Search…………………………………….3
B. Proposed Intervenor George Byrd’s Arrest and Strip Search…………………4
C. The City of Philadelphia’s Unequivocal Admission to Conducting Blanket Strip Searches at PPS…………………………………………………5
D. The Illegality of the City’s Blanket Strip Search Policy……………………..10
III. THE COURT SHOULD CERTIFY THIS ACTION, EITHER ON FULL OR PARTIAL BASIS, AS A CLASS ACTION…………………………….11
A. The Proposed Class Satisfies the Numerosity Requirement Of Rule 23(a)(1)……………………………………………………………..14
B. There are Numerous Questions of Law and Fact Common To the Class………………………………………………………………….16
C. The Claims of the Representative Plaintiff are Typical of the Claims of the Class at Large…………………………………………………19
D. Nakisha Boone, Proposed Intervenor George Byrd, and Their Counsel Will Fairly and Adequately Represent the Class…………………..20
E. Plaintiffs Have Satisfied the Requirements for a Money Damages Class Under Rule 23(b)(3), as the Common Issues Shared by Class Members Predominate Over Individual Issues and a Class Action is the Superior Method by which to Prosecute This Case…………………………………………………………………….22
1. An Inquiry Into the Existence of Individualized Reasonable Suspicion Need Not Enter into the Court’s Analysis, and Even if it Does, it is the Defendant’s Burden To Establish a Justification for the Strip Searches in Question…….24
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2. Certification Should be Granted Even If Damages Vary Among Class Members……………………………………………..29
3. The Superiority of the Class Action Mechanism is Clear…………..33 F. Plaintiffs Have Also Satisfied the Requirements of Rule 23(b)(2)…………34 G. The City of Philadelphia Should be Required to Assist Class
Counsel in Providing Notice to Absent Class Members…………………….36 IV. CONCLUSION……………………………………………………………………..36
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TABLE OF AUTHORITIES
Cases Amchem Prod. v. Windsor, 521 U.S. 591 (1997)……………………………….. 12, 23, 33 Baby Neal v. Casey, 43 F.3d 46 (3d Cir. 1994) .............................................. 12, 16, 19, 35 Bart Dal Ponte v. American Mortgage Express Corp., 2006 WL 2403982 (D.N.J. Aug.
17, 2006) ....................................................................................................................... 13 Blain v. Smithkline Beecham Corp., 2007 WL 178564 (E.D. Pa. Jan. 25, 2007)............. 13 Blihovde v. St. Croix County, 219 F.R.D. 607 (W. D. Wis. 2003) ....................... 14, 19, 23 Bowers v. City of Philadelphia, 2006 WL 2818501 (E.D. Pa. Sept. 28, 2006)……. passim Bull v. City of San Francisco, No. 03-01840 (N.D. Cal. June 10, 2004).......................... 14 Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003)................................... 13, 14 Califano v. Yamaski, 42 U.S. 682 (1979)…………….. Calvin v. Sheriff of Will County, 2004 WL 1125922 (N.D. Ill. May 17, 2004).......... 25, 31 Cumberland Farms, Inc. v. Browning-Ferris Indus., 120 F.R.D. 642 (E.D. Pa. 1988) ... 15 Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003), .................................................. 26 D'Alauro v. GC Services Ltd., 168 F.R.D. 451 (E.D.N.Y. 1996)……………..…………33 Davis v. City of Camden, 657 F.Supp. 396, 401 (D. N.J. 1987)....................................... 25 Dietrich v. Bauer, 192 F.R.D. 119 (S.D.N.Y. 2000). ................................................. 19, 23 Doan v. Watson, 168 F. Supp. 2d 932 (S. D. Ind. 2001) .................................................. 14 Dodge v. County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005)...................... 14, 18, 25, 34 Doe v. Calumet City, 754 F. Supp. 1211 (N. D. Ill. 1990) ......................................... 14, 26 Eddleman v. Jefferson County, 1996 U.S. App. LEXIS 25298 (6th Cir. 1996) .... 14, 21, 27 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)......................................................... 13 Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985).................................................. 12 Delandro v. County of Allegheny, No. 06-0927 (TFM/RCM)(W.D. Pa. Dec. 7, 2006)...10 Ford v. City of Boston, 154 F. Supp. 2d 131 (D. Mass. 2001)……………………….….11 Ford v. Suffolk County, 154 F. Supp. 2d 131 (D. Mass. 2001)......................................... 14 Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147................................................... 19 Gonzalez v. City of Schenectady,141 F.Supp. 2d 304 (N.D.N.Y. 2001)…………….11, 29 Hairston v. Hutzler, 334 F. Supp. 251(W.D. Pa. 1971) aff’d 468 F.2d 621 (3d Cir. 1972)
....................................................................................................................................... 13 Haney v. Miami Dade County, 2005 U.S. Dist., LEXIS 27739 (S.D. Fla. 2005)............. 14 Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988)…………………………………..………16 Hayworth v. Blondery Robinson & Co., 980 F.2d 912 (3d Cir. 1992) ............................. 19 In Re Amerifirst Sec. Litig., 139 F.R.D. 423 (S.D. Fla. 1991). ......................................... 13 In re Asbestos Sch. Litig., 104 F.R.D. 422…… (E.D. Pa. 1983)…………………….16, 30 In re Bulk (Extruded) Graphite Prods. Antitrust Litig. Slip Copy, 2006 WL 891362, *4
(D.N.J. 2006)................................................................................................................. 12 In re Chiang, 385 F.3d 256 (3d Cir. 2004) ....................................................................... 13 In re Cigna Corp. Securities Litig., 2006 WL 2433779 (E.D. Pa. 2006) ......................... 30 In re Hydrogen Peroxide Antitrust Litig., 2007 WL 163767 (E.D. Pa. Jan 19, 2007)…..16 In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 185 (D.N.J. 2003 ........................ 15 In Re NASDAQ Market Makers, 169 F.R.D. 473 (S.D.N.Y. 1996).................................. 23 In re Nassau County Strip Search Cases, 461 F.3d 219 (2nd Cir. 2006) .................... 27, 33 In re Sugar Industry Antitrust Litig., 73 F.R.D. 322 (D.C. Pa. 1976) .............................. 23
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In Re Visa Check/Master Money Antitrust Litig., 280 F.3d 124 (2d Cir. 2001). .. 13, 27, 32 Jenkins v. Raymark Indus., 782 F.2d 468 (5th Cir. 1986) ................................................. 23 John Does No. 1-100 v. Boyd, 613 F.Supp. 1514 (D. Minn. 1985)…………………… 11 Kahler v. County of Rensselaer, No. 03-CV-1324 (N.D.N.Y. 2004)................................ 22 Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989);................................................ 27 Lee v. Perez, 175 F. Supp.2d 673 (S.D.N.Y. 2001).......................................................... 26 Lee v. Perez, 175 F. Supp.2d 673 (S.D.N.Y. 2001).......................................................... 26 Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) .......................................... passim Maneely v. City of Newburgh, 256 F. Supp. 2d. 204 (S.D.N.Y. 2003)....................... 14, 32 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997). ....................................................... 12 Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005)..................... passim Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006) ....... 15, 22, 28, 30 Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983)…………………...…….1 Nilsen v. York County, 2005 U.S. Dis. LEXIS 27215 (D. Me. 2005)............................... 14 Polk County, 154 F. Supp. 2d 131 (D. Mass. 2001) ......................................................... 14 Re NASDAQ Market Makers, 169 F.R.D. 473 (S.D.N.Y. 1996). ..................................... 23 Seawell v. Universal Fidelity Corp., 235 F.R.D. 64 (E.D. Pa. 2006) ......................... 30, 35 Smith v. Montgomery County, 643 F. Supp. 435 (D. Md. 1986) ................................ 14, 28 Spinner v. City of New York, 2003 U.S. Dist. LEXIS 19298 (E.D.N.Y. 2003) ................ 14 Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001)………………………… 15, 19, 23 Sutton v. Hopkins County, 2007 WL 119892 (W.D. Ky. Jan. 11, 2007).................. passim Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004)......................................... 14, 27, 31, 33 Tyson v. City of New York, 97 Civ. 3762 (March 18, 1998)....................................... 27, 32 Weikel v. Tower Seminconductor Ltd., 183 F.R.D. 377 (D.N.J. 1998)............................. 21 Weisfeld v. Sun Chem. Corp., 210 F.R.D. 136 (D. N.J. 2002)…………………………...20 Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984) ..................................................... 19, 20 Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. 1975)........................................... 20 Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984) ........................................................... 20 Wolgin v. Magic Marker Corp., 82 F.R.D. 168 (E.D. Pa. 1979) ...................................... 30 Yang v. Odum, 392 F.3d 97 (3d Cir. 2004)……………………………………………....33 Zeffiro v. First Pa. Banking & Trust Co., 96 F.R.D. 567 (E.D. Pa. 1983) ....................... 21 Zeno v. Ford Motor Co., 238 F.R.D. 173 (W.D. Pa. 2006) .............................................. 23
Rules Fed. R. Civ. P 23(b)(2)………………………………………………………………...4, 34 Fed. R. Civ. P. 23(a) .................................................................................................. passim Fed. R. Civ. P. 23(a)(1)....................................................................................................... 6 Fed. R. Civ. P. 23(a)(2)................................................................................................... 7, 8 Fed. R. Civ. P. 23(a)(3)..................................................................................................... 19 Fed. R. Civ. P. 23(a)(4)..................................................................................................... 12 Fed. R. Civ. P. 23(b) .................................................................................................. passim Fed. R. Civ. P. 23(b)(2)…………………………………………………………………. 12 Fed. R. Civ. P. 23(b)(3)…………………………………………………………….…….42
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Treatises H. Newberg & A. Conte, 1 Newberg on Class actions §3.10, at 3-50 (1992)…………...16 5 H. Newberg, Newberg on Class Actions §8824(b), at 879 (1977)….…………………30
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INTRODUCTION The City of Philadelphia conducts bla nket strip searches upon all pre-trial detainees remanded to the cu stody of the Philadelphia Prison System, regardless of criminal charge or reasonable suspicion. Th ese searches could not be more degrading. All members of the proposed class are requir ed to disrobe in front of a Corrections Officer, and are th en required to bend or m anipulate themselves to allow for a v isual inspection of the genitals and body cavities. Under the City’s written strip search policy, these searches are to be done with a Corrections Officer usi ng a flashlight to illum inate body cavities. These searches are done on everyone entering the Prison System. Men, women, juveniles, the elderl y, the sick, the m entally and physically handicapped, the obese ---- many of whom are ch arged with minor crimes like driving while intox icated, shoplifting, and failing to pay fines. One cour t has fairly describ ed these searches as being “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). There is no factual disp ute that these searches occurred in the past – in fact, the City is even boastful about the supposed need to do this to everybody. They have refused to change their policies in the face of th is lawsuit, m eaning as this m otion, and a prospective motion for prelim inary injunction, is pending, thousands of people will be illegally strip searched by th e Philadelphia Prison System . Other federal courts, when faced with the same situation, have not hesitated to certify a class action to address illegal uniform strip search policies, and they also have not hesitated to enter injunctions to protect the constitutional rights of pre-trial detainees. See, Marriott v. Cou nty of
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Montgomery, 227 F.R.D. 159 (N.D.N.Y.), aff’d, 2005 WL 3117194 (2d Cir. 2005) (class certification, preliminary injunction in strip search class action); Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006) (summ ary judgment and perm anent injunction in favor of a certified class). The present cas e before th e Court m andates treatment as a class action so that the City can be held accountable for its intentional violation of the constitutional rights of tens of thousands of individuals, many of whom, because of their circumstances, have no voice to individually seek change or recompense from a large governm ent agency. T he Plaintiffs respectfully seek class certification by the filing of this motion. I. Procedural History
Nakisha Boone initiated this putative class action against the City of Philadelphia (the “City), the Philade lphia Prison Service (“PPS”), and various individual defendants on April 21 , 2005 with the filing of a class action complaint. Mo tions for sum mary judgment were filed by Ms. Boone and th e City on January 23, 2006 and February 23, 2006, respectively. After the m otions were fully briefed, the parties entered into a stipulation dismissing PPS and the individu al defendants from the lawsuit. The stipulation was approved by the Court on May 17, 2006, and the City rem ains the only named defendant in this case. On June 8, 2006, the Court entered an order denying both motions for summary judgm ent without prejudice. The Court advised the parties that it would consider renewed m otions for summ ary judgment after the issue of class certification had been resolved. Contem poraneously with this motion the Plaintiffs have sought leave to intervene George Byrd as a class representative.
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In accordance with orders issued throughout the course of this litigation, Plaintiff submits this m otion seeking that the Court certify a class of individuals who, like Ms. Boone and Mr. Byrd, have had their civil ri ghts unnecessarily vio lated by the unifor m strip search practices of the City. In a separate motion proceeding that the Plaintiffs hope will be heard contem poraneously with this m otion, proposed class cou nsel also seek a preliminary injunction barring the C ity from continuing to illegally st rip search pretrial detainees admitted to the custody of PPS absent reasonable suspicion. II. Factual Background
A. Nakisha Boone’s Arrest and Strip Search Nakisha Boone is a single m other who works as an aide in a nursing hom e. (Ex. A, Boone Aff., ¶3). On October 22, 2004, Ms. Boone was arres ted for failing to ap pear to answer charges of reckless endangerm ent (Pa. C.S.A. Crim es and Offenses §2705 – misdemeanor in the second degree) and endang ering the welfare of a child (Pa. C.S.A. Crimes and Offenses §4304 m isdemeanor in the first degree), both m isdemeanors under Pennsylvania’s Criminal Code. (B oone Aff., ¶1; Ex. B, Boone Arrest and Booking Documents). The underlying charges in ques tion occurred in 2001, with Ms. Boone failing to appear to answer th ese charges until the ti me of her arrest seve ral years later. A Philadelphia Police Offi cer pulled over Ms. Boone on October 22, 2004 for having an expired registration, and during the traffic stop the officer di scovered that Plaintiff was the subject of an outstanding bench warrant. (Boone Aff. at ¶6; Ex. A, March 22, 2006 Stipulation, at ¶2; Ex. D, Boone De p. at 76-77). The following day, after being ordered held on $5,000 bail, Ms. Boone was transported to Riverside, a component facility of PPS
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that is responsible for the in take of new fe male detainees. (Boone A ff. at ¶7; E x. C March 22, 2006 Stipulation, at ¶3; Boone Dep. at 80). Shortly after her arrival at the facility, Ms. Boone was m oved into a shower room and ordered to remove all of her clothing, including her underpants and brassier e. (Boone Aff. at ¶8; Boone Dep. at 83, 86). While naked, Ms. Boone was instructed to “squat and cough,” and then to bend at the waist an d spread th e lobes of her butto cks to allow for a visual inspection of her vaginal and anal cavities. (Boone Aff. at ¶8; Boone Dep. at 89). Ms. Boone was forced to “squat” so a Corrections Officer could see if any contraband dislodged from her vagina or anus.1
The strip search of Ms. Boone was conduc ted regardless of the fact that she was detained on a bench w arrant for two m isdemeanor charges, and without any reason to believe that she was con cealing weapons or contraband in her private areas. There is no reason to believe that Ms. B oone, arrested while driving in Philadelphia after a traf fic stop for a bench warrant on thre e year old m isdemeanor charges, was in possession of any weapons or contraband. The strip and visu al cavity search of Ms. Boone revealed no such items. (Boone Dep. at 90). Moreover, the reason why Ms. Boone was subjected to this humiliating procedure is simple: as illustrated below, the City of Philadelphia admits to doing this to everybody, re gardless of crim inal charges, reasonable suspicion, or personal characteristics, upon their admission to the PPS.
B. Proposed Intervenor George Byrd’s Arrest and Strip Search On March 31, 2005, proposed intervenor George Byrd was arrested at 3900 Wissahickon Avenue, Philadelphia, for opera ting a m otor vehicle w ith a suspended
1 Several weeks later, Ms. Boone’s underlying criminal charges were dismissed by the Philadelphia Municipal Court, and she was released from custody. (Boone Aff. at ¶3).
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operator’s license while under the influence of alcohol. Since Mr. Byrd had failed to appear for a hearing relating to a p rior arrest for driving under the influence, Mr. B yrd was taken to the police station under a bench warrant.
On April 2, 2005, Mr. Byrd was arraigne d and bail was set at $2,500. He was unable to m ake bail at the tim e and was th en transferred to the P hiladelphia Prison System. During the intake pr ocedures at the Philadelphia Prison System, Mr. Byrd was required to undergo a strip searc h, including a visual cavity s earch. This search did not reveal any contraband on Mr. Byrd’s person. A t no time in Mr. Byrd’s criminal history had he been charged with a fe lony, drug offenses or weapons ch arges. This strip search was undertaken without any reasonable suspic ion pursuant to defendant’s uniform strip search policy. Mr. Byrd was discharged fr om Philadelphia Prison System after making bail on April 3, 2005. Mr. Byrd’s charges were eventually dismissed. (See, Proposed Amended Complaint ¶¶ 35).
C. The City of Philadelphia’s Unequivocal Admission to Conducting Blanket Strip Searches at PPS
Individuals sent to PPS are th e subject of a detainer, and that detainer is reviewed for propriety on adm ission. (Ex. E, DiNubi le Dep. at 59). Neither the detainer paperwork nor any other pertinent infor mation about the detainee is forwarded to the search officer, the individual who administers the strip searches in question in a series of shower rooms. (DiNubile Dep., at 79, 90). Likewise, the process officer (who enters a detainee’s information into a com puter right before they are strip searched) does not attempt to ascertain the past crim inal history of the detainee. (D iNubile Dep. at 107-08, 111-12, 114-17).
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It is undisputed that the City of Philadelphia conducts blanket strip and visual cavity searches on all new detainees admitted to the PPS. As an initial matter, the written policies of the PPS require these bl anket searches. Policy number 3.A.18 of PPS, entitled “Searches,” details the standard procedure of PPS regarding strip searches, including searches performed when an individual initially enters a PPS facility. (Ex. E-1, City of Philadelphia Str ip Search P olicy). The written se arch policy c learly states that “Inmates are routinely strip s earched on the following occasions: at intake…,” (Search Policy, p. 6), and in its def initional section describes these searches as “the rem oval and searching of all clothing a nd visual inspection of the unc lothed body” to be conducted “during routine searches as indicated in this policy.” (Sea rch Policy, p. 2). The Search Policy states:
[m]ale and female inmates will be required to bend over and squat down, using his/her hands to expose the anus and genitalia. The following procedures will be perfor med in conducting a strip search:… [A Corrections Officer will] visually inspect the naked body for the presence of contraband from head to foot, including flashlight inspection of the mouth and ears and an external view of the anus and genitalia while th e inmate uses his/her body and hands to expose those areas to view. (Search Policy, p.6). The policy further provides, as an example for “specific situations,” that “each inmate will be ‘str ip searched’ by a n intake of ficer of the sam e gender in a private area as part of the adm ission process and prior to housing on the intake housing unit.” (Search Policy, p. 8). In sho rt, the Search Policy, by its express term s, requires “routine,” blanket strip searches to be conducted on ev ery person adm itted to the Philadelphia Prison System , regardless of crim inal charge or ind ividualized reasonable suspicion.
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Major James DiNubile, Defendant’s 30( b)(6) designee and a Deputy Warden of the Curran-Fromhold Correctional Facility (“CFCF”) (the fac ility where m ale pretrial detainees such as Geo rge Byrd a re processed into the PP S), freely admitted that all pretrial detainees including juveniles committed to the PPS are subjected to a strip and visual cavity search up on their admission to PPS facilities. (D iNubile Dep., pp. 65-66, 82-93).
Major DiNubile testified that th e Philadelphia Prison System processes approximately 30,000 individuals per year for de tention in PPS facilities, more than half of which are pretrial detainees who could not make bail after being arraigned. (DiNubile Dep., pp. 22, 29-31). 2 DiNubile a lso stated that the Philade lphia Prison System detains individuals charged with al l manner of crim es, including m isdemeanors, summary offenses, probation violations, parole violati ons, Family Court Act violations, failing to pay fines, as well as those held on bench warrants. (DiNubile, pp. 32-43). DiNubile affirmed that the actu al strip search pract ices of the Philadelphia Pris on System are reflected in the written Search Policy, that men and women are treated identically with the exception of the location in which they are strip searched (women are booked and strip searched at the Riverside Correction al Facility), and that women are forced to life their breasts and “squat and cough” during their search while men are required to lift their testicles. (DiNubile, pp. 20-21, 141-148). Men are also required to bend at the waist and physically spread the lobes of their buttock s. (DiNubile, pp. 145-46). These searches uniformly involve the visual in spection of body cavities (the vagina and anus) of each and every detainee admitted to the PPS, regardless of reasonable suspicion, crim inal
2 The City also provide d booking information for all detainees adm itted to PPS during much of the proposed class period. These records number into the tens of thousands.
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charge, or individual circum stances. The searches of m en occur in a 6 ’ by 10’ shower stall, with the Corrections Officer standing in close proximity to the detainee. (DiNubile Dep. pp. 80-81). The searches of fem ale detainees occur under sim ilar circumstances. (Boone Dep. pp. 88-90; Ex.F, Harold Dep., pp. 88-96, 98-104; Ex. G, Singleton Dep., 38, 68).
The following exchange best summ arizes DiNubile’s testimony about the City of Philadelphia’s uniform strip search policies:
Question [by Attorney Keach]: I just want to clarify for the record. Every individual who comes into the Philade lphia Prison System is subjected to a strip search as part of the reception procedure, correct? Answer [by Major DiNubile]: Part of the reception proces s, yes, that is correct. Question: And that strip search involves that individual com pletely disrobing, including removing his underpants, correct? Answer: That is correct. Question: That pro cedure also inv olves a visu al examination of, for a male, their rectum, correct? Answer: That’s correct. Question: For a female inmate that would involve a visual examination to see when they squat if anything falls from the vagina or the rectum, correct? Answer: That’s correct. Question: Is reasonable suspicion considered at all when conducting those strip searches? Answer: The strip searches on intake? Question: On intake. Answer: No, it’s a part of the process.
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Question: Are criminal charges considered on intake?

Answer:

No.

Question: Is an inm ate’s past criminal history considered when that individual is strip searched on intake?

Answer:

No.

Question: Is an individual’s status as either being a pretrial hold or a convicted inmate considered when being strip searched on intake?

Answer:

No.

Question: Is it fair to say, sir, that the strip search on intake, that has been the subject of your testimony here toda y, is conducted on a uniform basis on all individuals admitted to the Philadelphia Prison System?

Answer:

Yes.

(DiNubile Dep., pp. 178-80). In short, eac h and every individual adm itted to the

Philadelphia Prison System is forced to undergo a strip searc h, including a visual

examination of their body cavities.

In their prior briefing before the Court, the City m aintained that Ms. Boone’s

“history of violence” justified their strip search of her. Presum ably, no matter who the

Plaintiffs present to the Cour t, the Defendants will find some post hoc marginal basis to

justify the strip search of that particular individual. The ac tual practices of the City and

its Corrections Officers, of course, de monstrate that no ef fort is m ade to deter mine

someone’s history before sear ching them. As part of discovery in this action , the

Defendants produced documents reflecting the Corrections Officers on duty during Ms.

Boone’s admission and search at the Riversid e Correctional Facility. This “Adm issions

Report” reflects that Officers Harold, Singelton, and Bryant we re working at the tim e of

Ms. Boone’s admission, (Ex Y., RCF Admissions Report), and each of these Corrections

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Officers was deposed by the Plaintiffs. They all confirmed that everyone is subjected to a strip and visual cavity search upon adm ission to PPS regardless of reasonable suspicion or criminal charge, that the practice continues until today, and that no ef fort is made to determine the background of those being searched. (Singleton Dep., pp. 38-42, 57-58, 68-69; Harold Dep., pp. 99-102, 123-24, 109-111; Ex. H, Sareem Bryant Dep., pp. 1719). All of these City Corrections Officers also confirmed that they had no knowledge or recollection of Nakisha Boone. (Singlet on Dep., pp. 60-63; Harold Dep., pp. 123). To the extent that Ms. Boone’s “history of violence” justifies her strip search on October 23, 2004, the officers that conducted the search apparently know nothing about it.
D. The Illegality of the City’s Blanket Strip Search Policy The legality of the City ’s strip search regimen was the subject of prior m otion proceedings before the Court. W hile the Court declined to decide th e Plaintiff’s Motion for Partial S ummary Judgment because of factua l disputes, the Plain tiffs maintain that they have demonstrated to the C ourt the patent illegality of th e City’s strip search policy. See, Newkirk v. Sheers, 834 F. Supp. 772, 789-90 (E.D. Pa. 1993) (“we are com pelled to find that ensuring the security needs of the Schuylkill C ounty Prison by strip searching plaintiffs was unreasonable without a partic ularized suspicion by th e authorities that either of the twin dangers of concea ling weapons or contraband existed”). See also, Delandro v. County of Allegheny, No. 06-0927 (TFM/RCM) (W .D. Pa. Decem ber 7, 2006) (unreported), aff’d by order, No. 06-0927 (W.D. Pa. January 8, 2007) (considering the blanket strip search practice of the Allegheny County Jail) (Exhibit X). The Plaintiffs also maintain that they successfully defeated the justification provided by the City for these searches, including City’s supposed “huge problem ” with contraband (seven
10

incidents in approximately 70,000 admissions), the need to conduct such searches to keep

contraband out the Philadelphia Prison System, and the claim that reasonable suspicion to

strip search an individual can be manufactured after the fact. See, Ford v. City of Boston,

154 F. Supp.2d 131, 137 (D. Mass. 2001) (contraba nd discovered “five tim es,” or 0.063

percent of the tim e, during admissions to Suffolk County Jail); John Does No. 1-100 v.

Boyd, 613 F. Supp. 1514, 1523 (D. Minn. 1985) (discu ssing the “unplanned” nature of

being arrest, and how uniform strip search es “can hardly be exp ected to d eter

smuggling”); Gonzalez v. City of Schenectady, 141 F. Supp.2d 304, 309 (N.D.N.Y. 2001)

(calling the post hoc effort to pro vide reasonable suspicion to jus tify uniform strip

searches “absurd”). These issues, of course, are the comm on legal questions that m ake

this action suitable for class certification.

III. The Court Should Certify This Action, Either on a Full or Partial Basis, as a Class Action

Nakisha Boone and, with the Court’s approval, proposed intervenor George Byrd,

seek to represent a class of thousands of individuals, many of whom are poor and

disenfranchised, who had, and who will hav e, their civil rights unnecessarily violated by

the uniform strip search practices of the City of Philadelphia. The c lass that Plaintiffs

seek to represent is defined as follows:

All persons who have been or will b e placed into th e

custody of the Philadelphia Prison System after being

charged with misdemeanors, summary offenses, violations

of probation or parole, tr

affic infractions, civil

commitments, or other minor crimes, and who were or will

be strip searched upon their entry into the P hiladelphia

Prison System pursuant to the policy, custom and practice

of the Philadelphia P rison System and the City of

Philadelphia. The class period commences on April 21,

2003 and extends to th e present or until the d efendant is

enjoined from, or otherwise ceases, enforcing the

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unconstitutional policy, practice and custom of conducting strip searches absent reasona ble suspicion. Specifically excluded from the clas s are any and all of the City of Philadelphia’s affiliates, legal r epresentatives, heirs, successors, or assignees. Also excluded from the class are any and all employees of the Philadelphia Prison System.
The Court m ay certify a case for class act ion treatment where a plaintiff can demonstrate that the threshold requirem ents of Fed. R. Civ. P. 23(a) (num erosity, commonality, typicality and adequacy of representation) are satisfied, and also demonstrate that the class satisfies one of th e three criteria set fo rth in Fed. R. Civ. P. 23(b). See Amechem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Baby Neal v. Casey, 43 F.3d 46, 55-56 (3d Cir. 1994). Here, the proposed class satisfies these threshold requirements, and the Plaintiffs reque st that the C ourt certify this ac tion as a money damages class under Fed. R. Civ. P 23(b )(3), or, in the a lternative, as an injunctive relief class action under Rule 23(b)(2 ). Should the Court find that full certification is inapp ropriate, Plaintiffs request partial cer tification relative to the is sues common to the class: the existence of a blanket strip search policy at Philadelphia Prison System facilities, and the liability of the City of Philadelphia for that policy.
The Court of Appeals for the Third Circuit has held that the "interests of justice require that in a doubtful case ... an y error, if there is to be one, should be comm itted in favor of allowing a class action." Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985), cert. denied, 474 U.S. 946 (1985); In re Bulk (Extruded) Graphite Prods. Antitrust Litig. Slip Copy, 2006 WL 891362, *4 (D.N.J. 2006) (“interest s of justice require that in a doubtful case… any error, if there is to be one, should be committed in favor of allowing
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a class action.”) (Ex. L). See e.g. Hairston v. Hutzler , 334 F. Supp. 251, 254(W .D. Pa. 1971) aff’d 468 F.2d 621 (3d Cir. 1972).
“The Court’s focus in deciding a m otion under Rule 23 is on whether a class action is an appropriate vehicle for litigat[ing] the claims alleged, and not the merits of the case.” Bart Dal Ponte v. American Mortgage Express Corp ., 2006 WL 2403982, *2 (D.N.J. Aug. 17, 2006) ( citing Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 178 (1974); In re Chian g, 385 F.3d 256, 269-270(3d Cir. 2004)). As opposed to considering the merits of the underlying claim , the Court s hould consider “whether the requirem ents of Rule 23 are met.” In Re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 133 (2d Cir. 2001). “[T]he legal standard is whether the evidence presented by plaintiffs establishes a reasonab le basis for cr editing plaintiffs’ assertions.” Bynum v. District of Columbia, 214 F.R.D. 27, 31 (D.D.C. 2003) (q uotations omitted). “[P]laintiffs need not establish the merits of their case a t the class certification stage and the substan tive allegations of the com plaint must be take n as true, [though] the court must conduct a rigorous analysis to determ ine the suitability of resolving th e issues in a class action.” Blain v. Smithkline Beecham Corp ., 2007 W L 178564, *3-4 (E.D. Pa. Jan. 25, 2007) (internal citations omitted) (Ex. N). While it is not necessary for a class representative to make an extensiv e evidentiary showing for evaluating w hether class certification is proper, see In re Chiang, 385 F.3d 256, 269-270 (3d Cir. 2004), as demonstrated herein, Plaintiff has done so in this case by provi ding the Court with written docum entation and deposition testimony confirming the allegations of the Amended Class Action Complaint.
In the ins tant case the City’s 30( b)(6) designee and four Philadelphia Prison System correctional officers each unequivocally testified that a blanket strip search policy
13

is in place at PPS facilities. Correctional Officer Harold tes tified that strip searches are
performed on all detainees who enter the Ph iladelphia Prison System, regardless of
criminal charge and regardless of whether or not any su spicion exists to believe tha t a
detainee is carrying contraba nd. (Harold Dep., pp. 109-1 10). Correctional Officers
Singleton and Bryant confirmed that, without exception, every single individual admitted
to a PPS facility is subjected to a strip search. (Singleton Dep., p. 57; Bryant Dep., p. 17-
18). According to Officer Singleton, strip se arches are employed in a non-discriminatory
manner: “No exception. No discrimination to race, weight, height, repeat offender, new
admit, the first tim e come in, there’s no disc rimination.” (Singleton Dep. p. 58). As s et
forth in greater below, other federal cour ts, in conside ring the situation wher e a
municipality employs a blanket strip search policy, have not hesitated to certify those
actions as class actions.12
A. The Proposed Class Satisfies th e Numerosity Requirement of Rule 23(a)(1)
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members
is impracticable.” Fed.R.Civ.P. 23(a)(1); Stewart v. Abraham, 275 F.3d 200, 226-227(3d
12 First Circuit: Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004); Nilsen v. York County, 2005 WL 757859 (D. Me. 2005) (Ex. O); Polk County, 154 F. Supp. 2d 131 (D. Mass. 2001); Mack v. Suffolk County , 191 F.R.D. 16 (D. Mass. 2000); Second Circuit: Dodge v. County of Orange , 226 F .R.D. 177 (S.D.N.Y. 2005); Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) (certifi cation achieved by lead counsel in this action); Maneely v. City of N ewburgh, 256 F. Supp. 2d. 204 (S.D.N.Y. 2003); Spinner v. City of New York , 2003 W L 23648356 (E.D.N.Y. 2003) (Ex. F); Fourth Circuit: Smith v. Montgomery County, 643 F. Supp. 435 (D.Md. 1986); Sixth Circuit: Eddleman v. Jefferson County, 1996 WL 495013, *5 (6 th Cir. 1996) (unpublished) (Ex. Q); Seventh Circuit: Blihovde v. St. Croix County, 219 F.R.D. 607 (W.D. W is. 2003); Doan v. Watson, 168 F. Supp. 2d 932 (S.D. Ind. 2001); Doe v. Calum et City, 754 F. Supp. 1211 (N. D. Ill. 1990); Ninth Circuit: Bull v. City of San Francisco, No. 03-01840 (N.D. Cal. June 10, 2004); Eleventh Circuit: Haney v. Miami Dade County , 2005 WL 1004931 (S.D. Fla. 2005). D.C. Circuit: Bynum v. District of Columbia, 384 F. Supp. 2d. 342 (D.D.C. 2005).
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Cir. 2001). “The num erosity requirement is intended to lim it the class action device to those cases in which the num ber of partie s makes traditional joinder of parties unworkable. By modern, complex litigation standards the minimum number of parties is not large.” In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 185 (D.N.J. 2003). “No definite standard exists concerning a magic num ber satisfying the num erosity requirement, nor must plaintiff allege the exact number or identity of class members… It is proper for the cou rt to accept common sense assumptions in order to support a fin ding of numerosity.” Cumberland Farms, Inc. v. Browning-Ferris Indus. , 120 F.R.D. 642, 645-646 (E.D. Pa. 1988) (internal quotation marks and citations omitted).
The element of numerosity is clearly met here. The Third Circu it has previously instructed that “[n]o minimum number of plaintiffs is re quired to mainta in a su it as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d at 226-27. Here, wher e the booking records produced by the City confirm that tens of thousands of individuals were arre sted and detained in PPS facilities during th e class period, the num erosity requirement for certification is easily satisfied. See e.g. Bowers v. City of Philadelphia , 2006 WL 2818501, *2-3 (E.D. Pa. Sept. 28, 2006) (numerosity exists where over 300 indivi duals had allegedly been subjected to unconstitutional conditions at PPS facilities and where the proposed class, w hich includes future detainees, could include thousands of people) (Ex. R); Marriott v. County of Montgomery, 227 F.R.D. 159, 171 (N.D.N.Y.), aff’d, 2005 WL 3117194 (2d Cir. 2005) (finding num erosity in strip search class action where proposed class num bered over 2,000 individuals).
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B. There are Numerous Questions of Law and Fact Common to the Class.
Rule 23(a)(2) requ ires that there b e “questions of law or fact comm on to the class.” Fed .R.Civ.P. 23(a)(2). The comm onality requirement is m et if the plaintif f’s grievances “share at least one question of fact or law with the grievan ces of the prospective class. Because the requirement may be satisfied by a single common issue, it is easily met…” Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). A party is entitled to certification where the class claims arise “from a ‘common nucleus of operative fact’ regardless of whether the underlyi ng facts fluctuate over the cl ass period and vary as to individual claimants.” In re Asbestos Sch. Litig., 104 F.R.D. 422, 429 (E.D. Pa. 1983). A single common question is sufficient to satisf y the requirements of Rule 23(a)(2). See H. Newberg & A. Conte , 1 Newberg on Class Actions s3.10, at 3-50(1992); accord Baby Neal, 43 F.3d at 56.
“This low bar recogn izes that, even where factual differences m ay exist between putative class members, the class action may be a useful method of resolving those issues that are co mmon to them all.” In re Hydrogen Peroxid e Antitrust Litig., 2007 W L 163767, *2 (E.D. Pa. Jan. 19, 2007) (Ex. S). In addressing the issues of commonality and predominance, the United States Court of Appeals for the Third Circ uit in Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988) explained th at “Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class.” Thus, Plaintiffs are not required to show that a ll class members’ claims are identical to one another. Differences between proposed clas s members, “while argu ably relevant as defenses to liability, do not change the fact that this clas s action raises the sam e basic
16

claim and shares com mon questions of law.” Mack, 191 F.R.D. at 23 (allowing certification of strip search class action desp ite “varying defenses to liability which m ay be raised regarding particular individuals”).
The Plaintiffs have established commonality in this case. The heart of Ms. Boone and proposed intervenor George Byrd’s claim s against the City of Philadelphia is that both they and the m embers of the proposed class were illegal ly strip searched upon their entry into PPS facilities, pursuant to a uniform policy, custom and practice im plemented by the City . The City of Philadelphia admits that a ll individuals admitted to PPS facilities were, and continue to be, subjected to the visual inspection of their naked bodies upon admission. The testimony of three Corrections Officers, all of whom were working at the time that Plaintiff Nakisha Boone was strip searched, have confirmed this uniform practice. Plaintiff Nakisha Boone testified that she was subjected to this procedure on her admission to the Rivers ide Correctional Facility. (Boone Dep. at 83-39 ). When George Byrd is de posed, he will conf irm this as well re lative to th e Curran-Fromhold Correctional Facility. As such, this class action has three common i ssues that are of central importance to all class members: a) did the City of Philadelphia employ a blanket strip search policy and/or practice during the class period; b) does the City’s blanket strip search policy violate the unreasonable s earch provisions of the United S tates Constitution; and c) is the City of Philadelphia directly responsible for these constitutional violations? Obviously, the Plaintiffs believe that, at the appropriate tim e, all of these issues will be resolved in their favor on summary judgment.
Under circumstances such as these, where all class m embers raise comm on questions of law and assert the same claims a result of an unlawful strip search policy, the
17

element of commonality ha s been established. See Dodge v. County of Orange , 226 F.R.D. 177, 180-181 (S .D.N.Y. 2005) (comm onality exists where all mem bers of t he class contend that a blanket strip search policy exists, where all members contend that the policy is illegal, and where all members of the class claim they were searched pursuant to the policy which was unif ormly applied to a ll detainees); Marriott, 227 F.R.D. at 172 (finding commonality where the re presentative parties and the members of the proposed class had the same legal claims based upon the s ame official procedure); see also Sutton v. Hopkins County , 2007 W L 119892, *4 ( W.D. Ky. Ja n. 11, 2007) ( “Plaintiffs have alleged that the Defendants ha d a policy, custom , or practic e of strip-searching persons on admission to and/or just prior to release from the Hopkins County Jail without regard to whether there ex isted the requ isite individual, reasonable susp icion required by law. Given this allegation, the existence and constitutionality of the county's policy, custom or practice are common questions.”) (Ex. T). This point was recently clarified by this Court in Bowers v. City of Philadelphia , 2006 WL 281850, *2-3 (E.D. Pa. Sept. 28, 2006). In Bowers, pretrial detainees in the custody of the Philadel phia Prison System brought a class action alleging severe overcrowdi ng and dangerous, unhealthy and degrading conditions. Judge Surrick granted the plaintiffs’ motion for class certification, noting that commonality had been estab lished where “all cl ass members are or will be subjected to the conditions alleged…, all of which result f rom the overall claim of unconstitutional overcrowding” and where “all m embers of th e class raise common questions of law” involving the constitutionality of the PPS’s practices and policies. Id.
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In short, the proposed class satisfies the commonality requirement of Rule 23(a). The constitutionality of Defendants’ policies is at the core of this litigation and would be the focus of any trial in this matter – whether for an individual or for a class.
C. The Claims of the Representative Pl aintiff are Typical of the Claims of the Class at Large.
Rule 23(a)(3) requ ires that the rep resentative plaintiff’s cl aims be “typical” of those of the other cla ss members. Fed.R.Civ.P. 23(a)(3 ). “The comm onality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, n. 13 (1982). “The typicality inquiry centers on whether the interests of the named plaintiffs align with the interests of the absent members.” Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001). “[F]actua l differences will not render a claim atypical if th e claim arises from the sa me event o r practice or co urse of con duct that gives rise to the claim s of the class members, and if it is based on the sam e legal theory.” Baby Neal, 43 F.3d at 58; see also Hayworth v. Blondery Robinson & Co ., 980 F.2d 912, 923 (3d Cir. 1992)(sam e); Weiss v. York Hosp., 745 F.2d 786, 809-910(3d Cir. 1984)(“typicality is demonstrated where the plai ntiff can “show that two issues of law or fact he or she shares in common with the class occupy the same degree of centrality to his or her claim s as to those of unmade class mem bers”); Blihovde, 219 F.R.D. at 617 (applying this principle to a s trip search class action). A class rep resentative should “have the incentive to prove all of the elem ents of the cause of action which would be presented by the individual members of the class were they initiating individual actions.” Dietrich v. Bauer, 192 F.R.D. 119, 124 (S.D.N.Y. 2000).
Here, the claims of Nakisha Boone and George Byrd are typical of m embers of the proposed class. They arise from the sam e practices, policies, and course of events,
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and Plaintiffs must make similar arguments to prosecute their claim s as would be m ade by members of the proposed class. See Bowers, 2006 WL 2818501, *2-3 (“A plaintiff’s claim is typical if it arises from the same event or course of conduct that gives rise to the claims of other class members and is based on the same legal theory.”); see also Weisfeld v Sun Chem. Corp. , 210 F.R.D. 136, 140 (D. N.J. 2002) (“ [I]n instances wherein it is alleged that the defendants e ngaged in a common schem e relative to all me mbers of the class there is a strong assum ption that the cl aims of the representa tive parties will be typical of the absen t class m embers.”)(citation omitted); Marriott, 227 F.R.D. at 172 (finding typicality even where the claim s of the representative pa rties involved a more detailed search than other class m embers, because they were conducted pursuant to the same policy); Sutton, 2007 WL 117892, *4 (“Because each nam ed Plaintiff alleges an unconstitutional strip search after arrest for a minor violation or before release from jail, the claims of the representatives are typical of the class as a whole.”).
Thus, typicality is easily satisfied by this proposed class action. D. Nakisha Boone, Proposed Intervenor George Byrd, and Their
Counsel Will Fairly and Adequately Represent the Class. Rule 23(a)(4) requires that the class representative “fairly and adequately pro tect the interests of the class.” Fed.R.Civ.P. 23( a)(4). Two separate elem ents must be established in order to s atisfy the adequacy of representation test adopted by the Third Circuit: “(a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plai ntiff must not have interests antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975); Weiss v. York Hosp ., 745 F.2d 786, 811 (3d Cir. 1984). Notwithstanding the fact that both prerequisites of adequacy of repres entation are m et in this case, any doubts
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concerning the adequ acy of a clas s representative shou ld be reso lved in favor of certification. See Weikel v. Tower Semiconductor Ltd ., 183 F.R.D. 377, 394 (D.N.J. 1998).
Nakisha Boone and proposed intervenor Ge orge Byrd seek to bring an end to illegal strip searches in the Philad elphia Prison System and are f urther committed to obtaining appropriate compensation from Defendants for themselves and for the members of the proposed class. Nakisha Boone and Ge orge Byrd have come forward to represent the class under great personal pressure – as being subject to a situation as humiliating as a strip search and then being forced to relive it would be difficult for anyone. The City’s efforts to vilify Ms. Boone in their prior moving papers and her deposition underscore the scrutiny faced by som eone seeking to repr esent the claims of a class agains t a municipality. Plaintiffs’ “interests in this case coincide with those of the potential class members in that [Plaintiffs seek] a declaration that the practices, policies, and conditions complained of in the [ Amended Class Acti on] Complaint are unconstitutional and seek injunctive relief prohibiting the co ntinuation of those” polic ies. Bowers, 2006 W L 2818501, *6-8. Ms. Boo ne and Mr. Byrd’s claim s are typical becau se they arise “from the same event or course of conduct that give s rise to the claim s of other class members and is based on the sam e legal theory.” Zeffiro v. Firs t Pa. Banking & Trust C o., 96 F.R.D. 567, 569 (E.D. Pa. 1983). In nearly identical circum stances and given the common legal and factual issues, courts have deemed plaintiffs in sim ilar cases to be adequate class representatives. See e.g.; Marriott, 227 F.R.D. at 172.
The class is also represented by compet ent and experienced counsel w ho have invested considerable time and resources into the prosecution of this action. (Copies of
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proposed class counsel resum es are attached as Ex. I). Additionally , counsel in this action has served as class counsel in thirteen strip search class actions, and have been held to be a dequate counsel by the United Sta tes District Court for the Northern Distric t of New York in three certified class actions. Kahler v. County of Rensselaer, No. 03-CV1324 (N.D.N.Y. 2004) (preliminary approval order in strip search class action settlement, litigated by present class couns el; class settlem ent later gr anted final approval) (E x. J); Marriott, 227 F.R.D. at 172 , Marriott v. Count y of Montgomery , 426 F. Supp.2d 1 (N.D.N.Y. 2006) (class certificat ion granted by U.S. District Court for the Northern District of New York, and, by subsequent decision, summary judgm ent granted in favor of the cla ss, class s ettlement preliminarily approved); McDaniel v. County of Schenectady, No. 04-CV-0757 (preliminary approval and certification of settlement class in strip search class action, class settlement pending) (Ex. K).
In short, N akisha Boone and Proposed Intervenor George Byrd are adequate representatives and have reta ined experienced class cou nsel that have aggress ively litigated this action. Plain tiffs have, accordingly, satisfied this requirem ent for certification.
E. Plaintiffs Have Satis fied the Requirements for a Money Damages Class Under Rule 23(b)(3), as the Common Issues Shared by Class Members Predominate Over Individua l Issues and A Class Action is the Superior Method by Which to Prosecute this Case.
Rule 23(b)(3) permits certification when “the court finds that the questions of law or fact common to the m embers of the class p redominate over any questions affectin g only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).
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The party proposing a class action under Rule 23 m ust establish that issues common to the class p redominate over the individual issues of particular class members. See Amchem, 521 U.S. at 623. “The predominance prong is m et when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class m ember's individual position." Zeno v. Ford Motor Co., 238 F.R.D. 173, 190 (W.D. Pa. 2006). Although Rule 23(b)(3) requires that common issues of law and fact predominate, it does not require that there be an absence of any individ ual issues. In re Sugar Industry An titrust Litig., 73 F.R.D. 322, 344 (D.C. Pa. 1976). Neither does satisfaction of the predominance prong of the class certification standard requ ire plaintiffs to p rovide evidence establishing each element of their cau se of action at the class certification stage. Rather, it only req uires plaintiffs to m ake a threshold showing that each element of their claim may be proven through common, class-wide evid ence, rather th an through evidence particular to each member of the class. See Stewart v. Abraham, 275 F.3d at 227-228. The m ost pragmatic way for the Court to m ake this determination is to evaluate whet her “common proof will predominate at trial.” In Re NASDAQ Market Makers, 169 F.R.D. 473, 517 (S.D.N.Y. 1996); see also Jenkins v. Raymark Indus. , 782 F.2d 468, 472 (5 th Cir. 1986) (the “significant aspect” requirement is met if “jury findings on the clas s question ... w ill ... significantly advance the resolutio n of the underlying ... cases”); Dietrich, 192 F.R.D. at 127 (in determ ining whether common issues of fact predominate, “a court’s inquiry is directed primarily toward whether the issue of liability is common to m embers of the class”). This is esp ecially true “when the class is challenging a uniform policy,” as “the validity of that policy predominates over individual issues.” Blihovde, 219 F.R.D. at 620.
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Here, all of the proposed class m embers’ claims revolve around one central legal issue: was the policy of strip search ing every pretrial detainee admitted to PPS facilities, without regard to the crim e charged or the circumstances of arrest, constitutional? The proposed class members’ claims also share common factual issues – did such a practic e exist during the class period, and is the City of Philadelphia re sponsible for this practice. Significantly, and as set forth in detail a bove, Defendants do not dispute that the PPS implemented a unif orm policy of strip se arching every pre trial detainee admitted to its facilities without regard to the existence of reasonable suspici on. Clearly, legal and factual issues in this litigation predominate over any potential individual issues. See e.g. Marriott, 227 F.R.D. at 173 (predom inance found despite differing facts regarding personal involvement of some individual defendants and slight differences between class members).
1. An Inquiry Into the Existence of Individualiz ed Reasonable Suspicion Need Not Enter Into th e Court’s Analysis, and Even if it Does, it is Defendants’ Bu rden to Establish a Justification for the Strip Searches in Question.
Defendants may claim that the need to analy ze the exis tence of reasonable suspicion for each class member is an issu e that predom inates over any other common issues. This argument fails for two reasons. First, the metaphysical possibility that some of the class members may, at the time of their arrests, have had characteristics that might add up to reasonable suspicion to conduct a strip search is irre levant to the events that routinely occurred at P PS facilities: the Class Action Co mplaint alleges, the City of Philadelphia admits, and testim ony confirms that the City’s practice did not (and does not) consider the presence or absence of reasonable susp icion when conducting strip searches at adm ission. The deposition testim ony cited herein confirm s that corrections
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officers did not (and do not) m ake any inquiry whatsoever as to reasonable suspicion before strip searching an arrestee – all detainees are strip s earched. Despite the City’s prior arguments to the Court about Nakisha B oone’s “history of violence” justifying her strip search, all Corrections Officers on duty during her adm ission to the Riverside Correctional Facility testified that they had no recollection of her, and that they did not consider a person’s background prior to strip searching them. The City cannot claim the possibility of facts supporting re asonable suspicion to conduct a strip search if they did not make an inquiry on this point. See Davis v. City of Camden , 657 F. Supp. 396, 401 (D. N.J. 1987) (“[W]hen an arrestee charged with a felony or a misdemeanor involving weapons or contraband is strip searched pursuant to a policy encom passing all arrestees, regardless of the nature of their offenses, and where it is conceded th at no suspicion regarding the particular arrestee existed, the requisite justification for the sea rch is lacking; neither the general policy nor its particular a pplication is supportable.”) (emphasis in original); Dodge v. County of Orange, 226 F.R.D. 177, 182 (S.D.N.Y. 2005) (“If individualized assessments were in f act not made, then all the se arches were illegal, because each new arrival was cons titutionally entitled to an individualized assessment of his or her circum stances… [T]he fact that a particular class m ember could have been lawfully strip searched if [the correctional facility] had made the constitutionally required assessment is a defense to a particu lar class member’s claim for dam ages, not a d efense to the class-wide claim that the Count y searched everyone without m aking any assessment at all. ”); Calvin v. Sher iff of Will C ounty, 2004 W L 1125922, *4 (N.D. Ill. May 17, 2004) (comm on questions predom inate over individual issues where, as here, “the ultimate legal question is not whethe r jail personnel m ade erroneous reasonable
25

suspicion determinations regarding each indiv idual, but whether th e Sheriff’s policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment rights.”) (Ex. U); Lee v. Perez, 175 F. Supp.2d 673, 679 (S.D.N.Y. 2001).
Further, reasonable suspicion is an af firmative defense that the City will need to prove at trial by a preponderance of the evidence, see Curry v. City of Syracuse, 316 F.3d 324, 330 (2d Cir. 2003), and one that the City cannot prove in the absence “of any evidence that its employees had any particular knowledge at the time of the searches that would give them any basis for such a belief.” Doe v. Calumet City , 754 F. Supp. 1211, 1220 (N.D. Ill. 1990); see also Sutton v. Hopkins County , 2007 W L 119892, *8. “To require Plaintiff to prove that each indi vidual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair.” Mack, 191 F.R.D. at 24. In short, “the burden rests on [the City of Philadelphia] to demonstrate that partic ular searches were reasonable.” Id. In light of the proof taken in this action and the City’s adm issions regarding the uniform nature of the strip search policy, it is unlik ely that th e City can detail even one prospective class member that was subject to an evaluation for reasonable suspicion.
Second, even if issues of reasonable suspicion exist, they do not predominate over the common issues of law and fact. As noted by the U.S. Court of Appeals for the S ixth Circuit:
Defendants argue that b ecause the reasonableness of any search must be exam ined on a case by case basis, the constitutionality of strip searches cannot be properly evaluated in a class action. The basis for the complaint, however, arises precisely because the Defendants did not conduct an individualized assessment of the need for each search. Plaintiffs alleg e ... their constitutional rights were violated by a policy or custom , written or unwritten, to
26

search every arrestee who entered the jail, regardless of the individual circumstances. Du e to the single le gal theory and the similar facts for each Plaintiff, a class action would be superior to individual actions. Eddleman, 1996 WL 495013, *5; see also Langley v. Coughlin, 715 F. Supp. 522, 557-58 (S.D.N.Y. 1989); Tyson v. City of New York , 97 Civ. 3762 (March 18, 1998) (Bench Decision) (Ex. V); Sutton v. Hopkins County , 2007 WL 119892, *7 (W.D. Ky. Jan. 11, 1007). Thus, common issues predominate over any individual issues. Assuming, arguendo, that the Co urt allows the City to attem pt to estab lish reasonable suspicion for some detainees despite their un iform written p olicy, possible individualized determinations regarding th e existence of reasonable s uspicion for a limited number of class members do not outweigh the benefits th at certification can offer in this case. In the con text of a class action defining the proposed class as encom passing persons searched pursuant to a blanket policy requiring all arrestees to be strip searched upon admission, any “reasonable suspicion inquiries” related to individual arrestees “will be de minimis,” in part becaus e “reasonable s uspicion must be poss essed by some law enforcement officer at th e time of the sear ch and may not be retr oactively imputed.” In re Nassau County Strip Search C ases, 461 F.3d 219, 224, 230 (2 nd Cir. 2006). “The existence of this defense does ‘not… foreclose class certification.’” Id. ( quoting Visa Check, 280 F.3d at 138)). The Court of Appeals for the First Circuit addressed this issue in Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004), a strip search class action prosecuted against a County Jail in Maine. There, having em phasized that “threats of undue complications as to liability [were] limited[,]” the Court rejected the notion that individualized determinations proscribed a finding that certification was appropriate. Id., 365 F.3d at 6.
27

Moreover, the Court explained that “[i]f there was in fact a rule, custom or policy of strip searching every arrestee or a subs tantially overlarge category, then it is a fair guess that most arrestees so clas sed were s trip searched o n that bas is.” Id. Concluding that the class could be narrowed or de-c ertified at a later date if necessary, the Court held that certification was warranted.
In yet another case granting certification of a class of individuals challenging the propriety of a ja il policy providing for blanket strip searches, the Court in Marriott v. County of Montgomery , 227 F.R.D. 159 (N.D.N.Y. 2005), in itially observed that the common question am ong all m embers of the cl ass was whether the search procedure, which was applied to a ll admittees, was cons titutional. Notwithstandin g uncertainties regarding the extent of the searches and the correspond ing amount of com pensatory damages, certification under Rule 23(b)(3) was, in the Court’s judgm ent, appropriate. Despite several “minor” issues, efficiency of the judicial process would be promoted by the certification process. Id. at 173.
While there are as m any as 2,000 class m embers, there is one central issue of law – wh ether the chang e out strip search violates the F ourth Amendment. Piece m eal litigation by multiple plaintiffs in multiple law suits would not promoted efficiency and would be inf erior to litigation of the issue in one suit. Id. Similarly, in Smith v. Montgomery County , 643 F.Supp. 435 (D.M.D. 1986), the United States District Court for the District of Maryland certified a class of tem porary detainees at a local cou nty detention center wh o were strip searched absent reason able suspicion that they possessed e ither weapons or contraband. Id. at 437. In an effort to facilitate the class action m echanism, the Court adopted the br ight line rule that
28

reasonable suspicion exists to strip s earch felony arrestees, temporary detainees arrested
for misdemeanors that involved weapons or contraband, as well as temporary detainees
with prior records for felony offenses or misdemeanors involving weapons or contraband.
Id. at 439. In light of the potential for f actual disputes regarding the existence of
individualized reasonable su spicion, the Court adopted the following case m anagement
structure:
[T]he Court will leave it to th e parties to determine which members of the class of tem porary detainees were strip searched in violation of their Fourth Am endment rights under the terms of the Court’s ruling. If defendants believe that they had individualized grounds for a reasonable belief that a detainee arrested for a minor offense was concealing weapons or contraband, the defendants shall subm it a written statement of those indiv idualized reasons to the Court. If a ny of the s tatements of reasonable suspicion create issues of fact, brief eviden tiary hearings may be necessary.
Id. at 443.
While the Defendants will voc iferously claim to the contrary, other courts
addressing blanket strip search policies have not hesitated to gran t class c ertification
despite post hoc claims of reasonable suspicion. In fact, prior case precedent has largely
disregarded post hoc attempts to justify blanket strip searches on the bas is of reasonable
suspicion because the attempt to do so is “absurd ” and “unfair.” See Gonzalez v. City of
Schenectady, 141 F. Supp. 2d 304 (N.D.N.Y. 2001); Mack, 191 F.R.D. at 24.
2. Certification Should Be Granted Even If Damages Vary Among Class Members
In order to defeat Rule 23(b)(3) certifi cation, Defendants may argue that this case
requires individual determination of dam ages for each class m ember and that these
damages calculations w hich will predom inate over other common issues. It is well
29

established that distinctions in damages will not defeat class certification when there are common liability issues to be determined. Seawell v. Universal Fidelity Corp., 235 F.R.D. 64 (E.D. Pa. 2006) (“That damages may have to be calculated individually… does not preclude class certification.”); see also In re Cigna Corp. Securities Litig., 2006 WL 2433779, *6 (E.D. Pa. 2006) (“The mere fact that individual members of the class may be entitled to different am ounts of money damages does not m ean that individual questions predominate.”) (Ex. W ). Inde ed, it was noted nearly twenty years ago that “overwhelming weight of authority holds that the need for individual damages calculations does not dim inish the appropriateness of class certification where common questions as to liability predom inate.” In re Asbestos School Litig ., 104 F.R.D. 422, 432 (E.D. Pa. 1984) ( quoting Wolgin v. Magic Mark er Corp., 82 F.R.D. 168, 176 (E.D. Pa. 1979) (quoting 5 H. Newberg, Newberg on Class Actions §8824(b), at 879 (1977)).
Civil rights cases involving al legations of an unconstituti onal strip search policy applicable on a routine and generalized ba sis are partic ularly well-suited for class treatment regardless of variations in the amount of damages to which individual members of the clas s may be entitled. For e xample, in Marriott v. County of Montgomery , 227 F.R.D. 159, 173 (N.D.N.Y. 2005), the court he ld that certificat ion was appropriate notwithstanding “questions of fact differing among the m embers of the class relate[d] t o the extent of the search to which each i ndividual was subjected, wh ich would affect the amount of compensatory damages.” The “common question [of] whether the change-out, strip search procedure applicable to all admittees, regardless of whether reasonable suspicion exists that contraband or w eapons are possessed, violates the Fourth
30

Amendment,” predominates over the other “minor differences between class members…” Id.
In Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004), the First Circuit affirmed the lower court’s decis ion to certify the cla ss notwithstanding the potential need for individualized damages determinations. In so doing, the court observed the multitude of tools at its disposal, includi ng formula damages, an agreement on uniform damages for all but the most serious claims and the use of special masters to determine the remaining claims, to address these concerns. Id. at 6-7. Likewise, in Calvin v. Sheriff of Will County, the court r ejected the notion that ind ividualized damages concerns outweighed the benefits of class treatment:
The fact that dam ages may vary based on each plaintiff’s mental state is not, however, a sufficient reason to deny certification, because the court may bifurcate the lawsuit so that liability is determ ined first. If defendants are found liable, the court m ay then revis it the dam ages issue, including whether to certify anot her class or subclasses, or hold individual hearings, for the purpose of resolving damages. Calvin, 2004 WL 1125922 at *5; see also Sutton v. Hopkins County , 2007 WL 119892, *8 (notwithstanding “som e variation in th e class m embers’ amount of dam ages, numerous cases exist in which courts have rejected arg uments that differences in damages among the class m embers should pr eclude class certifi cation.”)(internal quotation marks and citations omitted). This Court can utilize various “management tools ... to address any individualized damages issues that m ight arise in a class action , including (1) bifurcatin g liability and damages trials with the sam e or different juries; (2) appointing a m agistrate judge or special master to preside over individual dam ages proceedings; (3) decertifying the class
31

after the liability trial and providing notice to class members concerning how they m ay

proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.”

Visa Check, 280 F.3d at 141. The United States Distri ct Court for the Southern Distri ct

of New Yor k used these m anagement tools when providing full certification of a strip

search class action involving 53,000 pretrial detainees. See Tyson, 97 Civ. 3762, pp. 4-5

(March 18, 1998). The Southern District of New York held that:

On the da mages question, I note that I need not decide at

this point whether damages can be awarded on a class-wide

basis or whether there n eeds to be individualized

determinations of damages for each plaintiff. I simply note

that the most efficient way to resolve all of the issues in this

case is in one forum , and if I should determ ine that

individualized determinations need to be made with respect

to each p laintiff, there are num erous options availab le. If

my time is too short to preside over the dam

age

determinations, we do have Magistrate Judges, visiting

judges, and the possibility of a Special Master’s

involvement.

Id. The Tyson case was later res olved, with a s ettlement utilizing a poin t system to

provide compensation to individual class members.

In the even t that th e Court is co nvinced that the poten tial for individualized

damages determination is so substan tial as to pr eclude certification as to all issu es, the

proposed class should, at a m inimum, be partially certified as to liability. S ee Maneely,

208 F.R.D. at 78 (“[I]t would be improper to let m anageability concerns overwhelm the

predominance decision. There is a comm on issue at th e core of th is case – whether

defendants maintained an unconstitutional blanket strip search policy during the class ... I

find these common issues represent a sufficient constellation of comm on issues binding

the class mem ber together.”) (i nternal quotation marks omitted); Sutton v. Hopkins

County, 2007 WL 119892, *8 (“[T]he potential for varying claims of damages does not

32

mandate class decertification. Instead, the Court will b ifurcate the lawsuit permitting the Defendants' liability to be dete rmined initially. In the event a jury d etermines that the Hopkins County Jail maintained an unconstitutional blanket strip search policy, the Court will then determ ine the best approach fo r the second phase of the litig ation.”). In re Nassau County Strip Search Cases, 461 F.3d 219, 224 (2d Cir. 2006).
3. The Superiority of the Class Action Mechanism is Clear Given the n ature of this action and the f act that a substan tial proportion of the class membership is compri sed of econom ically disenfranchised individuals, a class action is also the superior m ethod by which to adjudicate claim s of individual class members. Poor and marginalized class m embers are unlikely to be able to litiga te their cases individually. See Mack, 191 F.R.D. at 25; D'Alauro v. GC Services Ltd., 168 F.R.D. 451, 458 (E.D.N.Y. 1996); In re Nassau County , 461 F.3d 219 at 230; Tardiff, 365 F.3d at 7 ("class status here is not onl y the superior means, but probably the only feasible one ... to establish li ability and perhaps dam ages"). The class action device is designed for the situation where an individual se eks to vindicate "the rights of groups of people who individually would be without effective strength to bring their opponents into court at al1.” Amchem Prod., 521 U.S. at 617. "The policy at the very core of the class action mechanism is to overcom e the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or he r rights. A class action solves this problem by aggr egating the relatively paltry potential recoveries into something worth som eone's (usually an atto rney's) labor.” Mack, 191 F.R.D. at 25 (internal citations om itted); Yang v. Odum , 392 F.3d 97, 106 (3d Cir. 2004); Marriott, 227 F.R.D. at 173; Sutton, 2007 WL 119892, *9 (“litigating th e existence of a unifor m
33

policy for the class as a whole would both reduce the range of issues and promote judicial economy.”)(internal quotation marks and citations omitted).
The prosecution of this case as a class action is superior to thousands of individual cases being filed in th is Court, eac h of which would be repetiti ous and possibly yield inconsistent adjudications. See Califano v. Y amaski, 42 U.S. 682, 700-701 (1979); Dodge, 226 F.R.D. at 183 (“W here a single iss ue (such as the existen ce of a uniform policy) is guaranteed to come up time and time again, issues of judicial economy strongly militate in favor of resolving that issue via a techniques that will bind as many persons as possible.”); Sutton v. Hopkins County, 2007 WL 119892, *9 (holding that “a class action provides the most feasible and efficien t method of determ ining liability” where suit alleges existence if a unifor m unconstitutional strip search policy). Assuming, arguendo, that summary judgment is not eventually gr anted against the City of Philadelphia on behalf of the entire proposed class, the trial in this action will last for weeks, with scores of jail em ployees being exam ined about the pr actices of the City of Philadelphia in an effort to establish m unicipal liability. Ev en having a sm all proportion of class m embers have duplicative trials on this issue would be an enorm ous waste of judicial resources, and would not be the superior and appropriate way to resolve this controversy.
For these r easons, Plaintiffs respectfully suggest that the Motion f or Class Certification be granted.
F. Plaintiffs Have Also Satisfied the Requirements of Rule 23(b)(2)
Rule 23(b)(2) permits certification when “the party opposing the class has acted or refused to act on grounds generally applicab le to the class, thereby making appropriate final injunctive relief or corresponding declarat ory relief with respect to the class as a
34

whole.” Fed.R.Civ.P. 23(b)(2). Rule 23(b) (2) is “a lmost automatically satisfied in
actions primarily seeking injunctive relief.” Baby Neal, 43 F.3d at 58. This Court has
previously held that:
Courts have noted that Rule 23(b)(2) is "an especially appropriate vehicle f or civil rights actions seeking... declaratory relief 'for prison and hospital reform .'" Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (quoting 3B J. Moore & J. Kennedy, Moore' s Federal Practice P 23.40(1) (1980)); see also Santiago v. City of Phila ., 72 F.R.D. 619, 625-26 (E.D. Pa. 1976) ("This subsection has been liberally applied in the are a of civil rights, including suits challenging conditions and prac tices at various detention facilities." (citing Martinez Rodriguez v. Jimenez , 409 F. Supp. 582 (D. P.R. 1976); Woe v. Mathews , 408 F. Supp. 419 (E.D.N.Y. 1976); Pugh v. Locke , 406 F. Supp. 318 (M.D. Ala. 1976); King v. Carey , 405 F. Supp. 41 (W.D.N.Y. 1975))). "The essential consideration is whether the complaint alleges that the p laintiffs have be en injured by defendants' conduct which is based on policies and practices applicable to the entire class. " Santiago, 72 F.R.D. at 626.
Bowers, 2006 WL 281850, *3-4. Here, wher e Plaintiffs have alle ged that the City of
Philadelphia employs a blanket st rip search policy that is unc onstitutional as applied to
detainees charged with minor offenses, and where Plaintiffs seek relief that will terminate
this practice and benefit the entire c lass, the requirements of Rule 23(b)( 2) are satisfied.
Seawell v. Universal F idelity Corp., 235 F.R.D. 64, 67 (E.D. Pa. 2006) (certification
under Rule 23(b)(2) was warranted for that portion of the case for w hich the plaintiff
sought exclusively injunctive/declaratory re lief, where such relief “would obviously
benefit the entire class”); Marriott, 227 F.R.D. at 173 (holding that requirem ents of Rule
23(b)(2) are met where “the centerpiece of the litigation is elimination of the… procedure
which is applicable to all admittees without a requirement for reasonable suspicion.”).
35

G. The City of Philadelphia Should Be Required to Assist Class Counsel in Providing Notice to Absent Class Members.
“[I]f a defendant can undertake the tasks associated [with class no tice] with less expenses and difficulty than could a plainti ff, the defendant m ay be ordered to provide notice.” LaFlamme, 212 F.R.D. at 459. Class counsel is fully prepared and able to provide notice to all class m embers. The C ity of Philadelphia, how ever, has all of the information regarding the addresses and social security numbers of all prospective class members in electronic format, which can presumably be accessed to form a database and provide a m ass mailing. Plaintif f respectfully suggests that the City be required to "provide the notice or ... cooperate with plaintiff by giving him the information necessary to provide the notice.” Id., at 460. IV. Conclusion
For these reasons, Plaintiffs respectfully requ est that th eir Motion for Class Certification be granted, and the Cou rt provide any other relief it finds to be just, proper and equitable.
Respectfully submitted by:

/s Dated: February 16, 2007
Daniel Id Levin, 510 Philadelphia, Telephone: Telecopier: Electronic
Elm
ELMER 1040

Daniel C. Levin _______________________________
C. Levin, Esquire No.: 80013
Fishbein, Sedran & Berman Walnut Street, Ste. 500
PA 19106 215-592-1500 215-592-4663
Mail: dlevin@lfsblaw.com
er Robert Keach, III, Esquire LAW OFFICES OF
ROBERT KEACH, III, PC Riverfront Center
36

Post Am Telephone: Telecopier:
Laura Identification 1604 Philadelphia, LFeldm Christopher Identification 115 West CHayes@Feldm

Office Box 70 sterdam, NY 12010
518.434.1718 518.770.1558 Electronic Mail: bobkeach@keachlaw.com

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire

Alexandra C. Warren, Esquire

CUNEO GILBERT & LADUCA, LLP

507 C Street, N.E.

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

Gary E. Mason, Esquire

Nicholas Migliaccio, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Feldman, Esquire No. 49459
FELDMAN & PINTO Locust St., 2R PA 19103
Telephone: 215-546-2604 Telecopier: 215-592-4663 Electronic Mail:
an@FeldmanPinto.com

G. Hayes, Esquire No. 57253
East Chestnut Street, 2nd Floor Chester, PA 19380
Telephone: 610-431-9505 Telecopier: 610-431-1269 Electronic Mail:
anPinto.com

37

Ostria 1800 Suite Philadelphia,

Kevin Birley, Esquire t & Associates, LLC John F. Kennedy Blvd. 300 PA 19103
ATTORNEYS FOR PLAINTIFF AND THE PROPOSED CLASS

38

 
 Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 30 of 40

UNITED STATES DISTRlCf COURT EASTERN DISTRlCf OF PENNSYLVANlA

NAKISHA BOONE, et aI., Plaintiffs,
- vs CITY OF PHILADELPHIA,
Defendant.

Civil Action No. 05-CV-1851

"'LSD MAR tJ ) ~, ..."

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

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 31 of 40
IT IS HEREBY ORDERED AS FOLLOWS:
I. Capitalized tenns used in this Order have the meanings assigned to them in the
Settlement Agreement and this Order.
2. The tenns of the Parties' Settlement Agreement are hereby conditionally
approved, subject to further consideration thereof at the Final Approval Hearing provided
for below. The Court finds that said Settlement is sufficiently within the range of
reasonableness and that notice of the proposed Settlement should be given as provided in
this Order.
3. Pursuant to Fed. R. Civ. P. 23 the Court conditionally certifies the following
Settlement Class and subclasses:
Settlement Class:
All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other mioor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry ioto the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (I) were charged with certain violence, drug and/or weapons (hereinafter "VOW") related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
2

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 32 of 40
Subclass H: All persons in the Settlement Class who were (1) charged with YOW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a YOW misdemeanor charge, or (3) had convictions for felonies and/or YOW misdemeanor charges predating the date of their admission. 4. The Court further conditionally finds that Plaintiffs Nakisha Boone and George Byrd are adequate Class Representatives for the Settlement Class. 5. The Court further finds that Plaintiffs' Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Section IV of the Settlement Agreement. 7. lfthe Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendant shall have reserved all its rights to oppose any and all class certification motions, to contest the adequacy of Plaintiffs as representative of any putative class, and to contest the adequacy of Class Counsel as adequate Class Counsel. Additionally, Plaintiffs reserve all of their rights, including the right to continue with the litigation pending at the time of the Settlement should the Settlement Agreement not be consummated. Notice to Settlement Class and Appointment o(Settlement Administrator 8. Counsel for the Class ("Class Counsel") are as follows: Daniel C. Levin, Esquire LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106
3

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 33 of 40
Charles LaDuca, Esquire Alexandra Warren, Esquire CUNEO GILBERT & LADUCA, LLP 507 C Street NE Washington, DC 20002
Elmer R. Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 120 I0
Gary E. Mason, Esquire Nicholas A. Migliaccio, Esquire THE MASON LAW FIRM, LLP 1225 19th St, NW, Suite 500 Washington, DC 20036
Christopher G. Hayes, Esquire The Law Office of Christopher G. Hayes 225 South Church Street West Chester, PA 19382
Kevin T. Birley, Esquire 160 I Sansom Street, Suite 2C Philadelphia, PA 19103
9. Beginning no later than sixty (60) days from the date of this Order Preliminarily
Approving Settlement, Class Counsel shall cause to be disseminated the notices,
substantially in the form attached as Exhibits A and B hereto, in the manner set forth in
Section IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class Members will
have forty-five (45) days from the Notice Date to opt out or to object, and one-hundred
twenty (120) days from the Notice Date to file claims. Prior to the Final Approval
Hearing, Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement
attesting to compliance with the provisions of this paragraph.
10. The Class Notice to be provided as set forth in the Settlement Agreement as filed
4

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 34 of 40
with the Court is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed Settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Fed. R. Civ. P. 23, due process, the Constitution of the Uniled States, the laws of Pennsylvania and all other applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness. II. Class Counsel are authorized to retain RSM McGladrey, Inc. in accordance with the terms of the Settlement Agreement and this Order. Requests (or Exclusion (rom the Set/lement Class 12. Any member of the Settlement Class that wishes to be excluded ("opt out") from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund
5

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 35 of 40
pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on the Settlement is hereby scheduled to be held before this Court on no later than one hundred fifty (150) days from the Notice Date, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice ofthis class action with respect to the Released Parties that are Defendant herein, and the entry of final judgment in this class action . Class Counsel's application for award of attorney's fees and costs shall be heard at the time of the hearing. 15. The date and time of the hearing shall be set forth in the Notice, but the hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by tile Court. Class Counsel will advise members of the Settlement Class of any scheduling issues by way of the Settlement Website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the Settlement, and Class Counsel's application for fees and expenses by serving a written objection. 18. Any Class Member making the objection (an "objector") must sign the objection
6

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 36 of 40
personally. An objection must state why the objector objects to the proposed Settlement and provide the basis to support such position. If an objector intends to appear personally
at the hearing, the objector must include with the objection a notice of the objector's intent to appear at the hearing. 19. Objections, along with any notices of intent to appear, must be filed no later than forty-five (45) days from the Notice Date. Ifcounsel is appearing on behalf of more than one Class Member, counsel must identify each such Class Member and each Class Member must have complied with the requirements of tllis Order. These documents must be filed with the Clerk of tlle Court at the following address:
U.S. District Court for the Eastern District of Pennsylvania Office of the Clerk of Court James A. Byrne Federal Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106-1797
20. Objections, along with any notices of intent to appear, must also be mailed to Class Counsel and counsel for Defendant at the address listed below: CLASS COUNSEL:
Daniel C. Levin, Esquire Levin, Fishbein, Sedran & Berman 510 Walnut Street, Ste. 500 Philadelphia, PA 19106
DEFENSE COUNSEL: Craig Straw, Chief Deputy City Solicitor, Civil Rights City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102
21. Only Class Members who have filed and served valid and timely notices of objection shall be entitled to be heard at the Final Approval Hearing. Any Class Member
7

Case 2:05-cv-01851-MAM Document 117-2 Filed 02/20/2009 Page 37 of 40
who does not timely file and serve an objection in writing to the Settlement, entry of Final Judgment, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise. 22. Persons wishing to be heard at the hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the hearing. Settlement Class Members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the Defendant for the claims made in tlle Complaint. Other Provisions 24. Upon approval of the Settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED.
~ Dated: Y)d-OO{
8

· _. .....__....._- -- -- .
United States District Court Eastern District of Pennsy lvania

Page I of2

Other Orders/Judgments 2:05-cv-01851-MAM BOONE v. CITY OF PHILADELPHIA et al CASE CLOSED on
07/25/2007 SEALDC . SPECIAL. SUSPENSE

United States District Court

Eastern District of Pennsylvania

Notice of Electronic Filing

The following transaction was entered on 3/612009 at 10:01 AM EST and filed on 3/5/2009

Case Name:

BOONE v. CITY OF PHILADELPHIA et al

Case Number:

2,:05-cv-1851

Filer:

WARNING: CASE CLOSED on 07/25/2007

Document Number: 118

Docket Text: ORDER APPROVING PRELIMINARY SETTLEMENT AS OUTLINED HEREIN.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/4/09. 3/6/09 ENTERED AND COPIES EMAILED.{rf, )

2:05-cv-1851 Notice has been electronically mailed to: CHRlSTOPHER G HAYES chris@chayeslaw.com JEFFREY M. SCOTT jscott@archerlaw.com DANIEL C. LEVIN dlevin@lfsblaw.com,jappelbaum@lfsblaw.com CRAIG M. STRAW craig.straw@phila.gov ELEANOR N. EWING eleanor.ewing@phila.gov. steffanna.kurtz@phila.gov GARY E. MASON gmason@masonlawdc.com. adicocco@masonlawdc.com. mdicocco@masonlawdc.com ALEXANDRA WARREN awarren@cuneolaw.com ELMER ROBERT KEACH, III bobkeach@nycap.rr.com, bobkeach@keachlawfirrn.com, pamelamercer@keachlawfirrn.com

hnps://ecf.paed.circ3 .dcnlcgi-binlDispatch.pl?627575944514567

3/6/2009

United States District Court Eastern District of Pennsylvania

Page 2 of2

CHARLES JOSEPH LADUCA charlesl@cuneolaw.com, cjladuca@yahoo .com
KELLY DIFFIL Y kelly .diffily@phila.gov
MARK MAGUlRE mark.maguire@phila.gov, craig.straw@phila.gov, michael.resnick@phila.gov
2:0S-cv-18S1 Notice will not be electronically mailed to:
The following document(s) are associated with thjs transaction:
Document description:Main Docmnent Original filename: nla Electronic document Stamp: [STAMP dcecfStamp_ID= 1001600548 [Date=3/6/2009] [FileNumber=4855827-0] [aealeaOd3cfc5I 53f23a7e 18b71 b78cfa83e0f768700435f0786bOb9fT058868a8de 8559daaa2a5fdf50fc505cc I I85549be9380a935e7deeb I350ca6dfbd068]]

https:llecf.paed.circ3.dcnlcgi-binIDispatch.pl?6275 75944514567

3/6/2009

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

NAKISHA BOONE, et al.

:

CIVIL ACTION

:

v.

:

:

CITY OF PHILADELPHIA

:

NO. 05-1851

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT

This case coming on for hearing before The Honorable Mary A. McLaughlin, U.S.D.J. on September 29, 2009, pursuant to this Court’s Order of March 6, 2009, in order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the Parties is fair, reasonable and adequate, and to address Class Counsel’s application for an award of attorney’s fees and costs; and the Settlement Class Members being represented by Class Counsel and Defendant being represented by its attorney; AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and Memorandum of Law submitted by Class Counsel, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendant, and having considered the submissions by Class Members, now makes the following:

FINDINGS OF FACT 1. This action was commenced on April 21, 2005, as a
class action.

2. After several years of intensive litigation, including extensive discovery and motion practice, and as a result of intensive, arm’s length negotiations between Class Counsel and Defendant, including settlement conferences before Magistrate Judge Elizabeth T. Hey and former Magistrate Judge James K. Melinson, the Parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendant (“Settlement Agreement”). The resulting Settlement Agreement was preliminarily approved by the Court on March 6, 2009.
3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed Settlement. The Notice Plan provided an opportunity for Class Members to file objections to the Settlement, and an opportunity to opt-out of the Settlement.
4. As of the deadline for the filing of objections, three objections were filed. Given the size of this Settlement, and the Notice Plan described above, this Court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendant.
5. The settling Parties have filed with the Court an affidavit from RSM McGladrey, Inc. declaring that the mailing
2

of the Court-approved notice, consistent with the Notice Plan, has been completed.
6. The Court finds that the published notice, mailed notice and Internet posting constitute the best practicable notice of the Fairness Hearing, proposed Settlement, Class Counsel’s application for fees and expenses, and other matters set forth in the Class Notice and Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of Pennsylvania and any other applicable law.
7. Any persons who wished to be excluded from this action were provided an opportunity to “opt-out” pursuant to the Notice. All persons who have validly excluded themselves from the action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein and the names of those persons are set forth in Exhibit A hereto.
8. Settlement Class Members are bound by the Settlement, Settlement Agreement, Release contained within the Settlement Agreement, and the Final Order and Judgment. Settlement Class Members do not have a further opportunity to opt-out of this Action.
9. Any Class Member who did not timely file and serve an objection in writing to the Settlement Agreement, to the
3

entry of Final Order and Judgment, or to Class Counsel’s application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
a. The liability issues in this case have been vigorously contested.
b. This Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the Parties to this litigation. This Settlement provides Class Members with a substantial monetary benefit.
c. This Settlement is clearly a product of hardfought litigation between the Parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendant.
4

11. Class Counsel submitted to the Court and served on
the Defendant their application for reasonable attorneys’
fees, costs, and expenses consistent with the terms of the
Settlement Agreement. This Court has considered Class
Counsel’s request and hereby grants the request.
12. The claims procedure established under the
Settlement Agreement is fair, a simplified process, and
workable. In any event, the Court will retain jurisdiction
to work out any unanticipated problems.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS
OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF
LAW:
13. This Court has jurisdiction over the Parties and
the subject matter of this proceeding.
14. Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, the following Settlement Class is certified for
purposes of final settlement:
Settlement Class: All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison
5

System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter “VDW”) related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Subclass II:
All persons in the Settlement Class who were (1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
15. The Court finds that, for the purpose of this
Settlement, the requirements of Rule 23 of the Federal Rules
of Civil Procedure are satisfied, and that a class action is
an appropriate method for resolving the disputes in this
litigation. All the prerequisites for class certification
under Rule 23 are present. The Class Members are
ascertainable and too numerous to be joined. Questions of
law and fact common to all Class Members predominate over
individual issues and should be determined in one proceeding
with respect to all Class Members. The Class
6

Representatives’ claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action.
16. The Settlement Class Representatives, Nakisha Boone and George Byrd, are entitled to and are hereby awarded a payment of $15,000 each, in recognition of the efforts they undertook in connection with this lawsuit. All Class Members who have made claims on the settlement are entitled to receive their pro rata share of the Settlement fund, as members of Subclass I not to exceed $3,000 or Subclass II not to exceed $100, after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.
17. Class Counsel are qualified, experienced, and have aggressively litigated this case, thereby demonstrating their adequacy as counsel for the Settlement Class. Daniel C. Levin, Esquire of Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Charles J. LaDuca, Esquire and Alexandra Warren, Esquire of Cuneo Gilbert & LaDuca, LLP, Washington, DC; Elmer Robert Keach, III, Esquire of the Law Offices of Elmer Robert Keach, III, Amsterdam, New York; and Gary E. Mason, Esquire and Nicholas A. Migliaccio, Esquire of the Mason Law Firm, LLP are hereby appointed as counsel for the Settlement Class.
18. The Court grants final approval of the Settlement Agreement, as being fair, reasonable and
7

adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.The Courts finds that the request for attorneys’ fees is reasonable.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. The Motion for Final Approval of the Proposed Settlement is GRANTED.
2. The Settlement Class Representatives, Nakisha Boone and George Byrd, are entitled to and are hereby awarded a payment of $15,000 each in recognition of the efforts they undertook in connection with this lawsuit. All Class Members who have made claims on the Settlement are entitled to receive their pro rata share of the Settlement Fund, as members of Subclass I (not to exceed $3,000) or Subclass II (not to exceed $100), after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.
3. The Class Counsels’ petition for attorneys’ fees and expenses is granted. Class Counsel is awarded fees of $1,770,000.00 and costs of $70,094.24.
4. RSM McGladrey is awarded an additional $100,000 for administering the Settlement.
5. This Action and all claims against the settling Defendant are hereby dismissed with prejudice, but the Court
8

shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement.
6. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.

IT IS SO ORDERED.

Dated: November 3, 2009

BY THE COURT:
/s/Mary A. McLaughlin MARY A. McLAUGHLIN, J.

9

EXHIBIT A Class Members Who Have Requested
Exclusion From This Settlement 1. Reverend Daceia C. Frazier
P.O. Box 48145 Philadelphia, PA 19144 2. Marvin Johnson PP# 62152 No Address 3. Glenn Galie 551 King Road Royersford, PA 19468 4. Mark Parker ET# 4454 660 State Route #11 Hunlock Creek, PA 18621 5. Donald Stewart GA-7744, SCI Graterford, PA 19426
10

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

NAKISHA BOONE, et al. v.
CITY OF PHILADELPHIA
McLaughlin, J.

:

CIVIL ACTION

:

:

:

:

No. 05-1851

MEMORANDUM

November 3, 2009

The parties have moved for the certification of a class and approval of a settlement in this case involving the policy of the City of Philadelphia to strip-search all pretrial detainees upon admission to the Philadelphia Prison System (PPS). Class counsel has also moved for an award of attorneys’ fees and reimbursement of out-of-pocket expenses. After a hearing held on September 29, 2009, the Court grants these motions and enters final judgment and an order of dismissal.

I. Background A. History of the Litigation Class representative Nakisha Boone brought this class
action on behalf of herself and all others who were stripsearched after being charged with a misdemeanor or other minor crime. Ms. Boone was arrested for violating a bench warrant with an underlying charge of endangering the welfare of a child. She

was strip-searched before being placed into detention. She argued that PPS’s policy of strip-searching all pretrial detainees upon admission was unconstitutional. The complaint named the City, the PPS, the Prisons Commissioner, members of the Prisons’ Board of Trustees and three of the prison’s Deputy Commissioners as defendants.
The class was defined in the complaint as [a]ll persons who have been or will be placed into the custody of the PPS after being charged with misdemeanor violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon entry into PPS pursuant to the policy, custom and practice of the PPS and the City of Philadelphia. Compl. at 7. The class period commenced on April 21, 2003, and was to extend until the defendants were enjoined from or otherwise ceased enforcing the policy. Id. The parties engaged in extensive discovery from July 2005 until November 2005. This initial period of discovery focused on the PPS’s policy. It included the production of documents relating to the prison policies, an inspection of the PPS facility, and depositions of prison officials and staff. The plaintiff filed a motion for partial summary judgment on the issue of the constitutionality of the defendants’ blanket strip-search policy on January 23, 2006. The defendants responded to the plaintiff’s motion a month later and filed their
2

own motion for summary judgment, to which the plaintiff responded.
In their motion, the defendants argued in part that the search policy was justified by the PPS’s need for security and safety. They maintained that the policy was necessary to prevent detainees from smuggling contraband into the prison system. See Def. Mot. for Summary Judgment at 21-23. They also argued that the search of Ms. Boone was reasonable due to her prior history of criminal charges, which included a conviction for simple assault, possession of an instrument of crime, recklessly endangering another person, and criminal conspiracy. See id. at 32; Parties’ Motion for Class Cert. and Settlement at 4-5.
Oral argument on the parties’ summary judgment motions was held before the Court on April 27, 2006. After the hearing, the Court dismissed with prejudice the individually-named defendants and the PPS from the case upon stipulation of the parties. The City remained as the sole defendant. The parties also stipulated to a discovery and briefing schedule with respect to class certification. The Court denied both parties’ summary judgment motions without prejudice and held that the parties would have the opportunity to renew their motions after the issue of class certification was resolved.
In response to the City’s argument that the search of Ms. Boone was reasonable based upon her criminal history, the
3

plaintiff amended the complaint to add class representative George Byrd. Mr. Byrd was charged with driving under the influence when admitted to the prison. He had no previous history of violent crime. See Mem. in Support of Plaintiff’s Unopposed Motion to Amend the Class Action Compl. at 2.
The parties conducted additional discovery on the issue of class certification for almost six months. They interviewed hundreds of class members to establish that a substantial number of pretrial detainees would be within the class definition. They also reviewed hundreds of the prison’s disciplinary records to determine how many misdemeanor detainees attempted to smuggle contraband into the PPS facility.
The plaintiffs filed their motion for class certification on February 16, 2007, and the defendants responded on April 16, 2007. The plaintiffs also filed a motion for preliminary injunction on March 23, 2007.
A hearing on both of the plaintiffs’ motions was held on June 28, 2009. At the hearing, the City informed the Court that it was preparing procedures for the use of equipment that would be used in lieu of strip-searching.
In view of the City’s proposed change in policy, the Court referred the matter to Magistrate Judge Elizabeth Hey for settlement. Negotiations began in July of 2007. The parties met with Judge Hey eleven times over the course of the year. These
4

negotiations concluded with a mediation held on July 21, 2008,
before retired Magistrate Judge James R. Melinson, in which
settlement was reached.
After reaching the settlement, the parties memorialized
the terms in a Settlement Agreement, prepared for the
administration of the settlement, and drafted the class notice.
They executed the proposed Settlement Agreement on February 20,
2009.
B. The Settlement Agreement
The Settlement Agreement divides the Settlement Class
into two subclasses, defined as follows:
All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were stripsearched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged
5

with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Subclass II:
All persons in the Settlement Class who were (1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Settlement Agreement at 7.
The Settlement Agreement recognized that the City had
changed its policy to stop strip-searching all pretrial detainees
on a blanket basis and to stop strip-searching misdemeanor
detainees in the absence of reasonable suspicion. See id. at 10.
The City adopted a model policy that uses modern technology such
as metal-detecting chairs and ion scanners to thoroughly search
all pretrial detainees without a strip-search. See Parties’ Mot.
for Class Cert. and Settlement at 3.
The Settlement Agreement states that the City’s current
written policy has been reviewed by the City of Philadelphia Law
Department for compliance with state and federal law. The City
maintains that the current policy is constitutional. The
Settlement Agreement requires that all correction officers have
access to the policy. Current and new corrections officers have
6

been, and will continue to be, trained on the policy. The Settlement Agreement also states that the policy will be posted in the intake area of the PPS. See Settlement Agreement at 1011.
The Settlement Agreement creates a fund to compensate the class members in the amount of $5,900,000. See id. at 8. All administrative expenses, including the costs of settlement administration, website maintenance, notice to class members and attorneys' fees, costs and incentive awards will be deducted from the settlement fund prior to determining the amount of distribution. See id. at 11-12. An amount of the fund, not to exceed $330,000, was to be dedicated to the settlement administrator to cover the costs of notice and administration. See id. at 11.
Class counsel agreed that they would not seek more than 30% of the entire Settlement Fund in attorneys’ fees. See id. at 14. The Settlement Agreement also states that an award of $15,000 will be requested for each of the class representatives.
The Settlement Agreement provides that the total amount of the fund dedicated to members of Subclass I is $5,170,000, to be granted pro rata to each class member who submits a timely claim form, in an amount not to exceed $3,000 per class member. The amount dedicated for Subclass II is $400,000, with a cap of $100 per claimant. See id. at 12. If the final approval of the
7

settlement is appealed and some portion of the Settlement Fund is not subject to the dispute, the undisputed portion was to be distributed in accordance with the Settlement Agreement. See id. at 14.
Notice was to be provided by the direct mailing of class notice and a claim form to all identifiable individuals in the Settlement Class. The Settlement Agreement also provides that notice would be given by television advertisement. The settlement administrator was also instructed to establish a website and maintain a toll-free number. Copies of the class notice and claim form were to be available by request over the phone, and downloadable copies of the documents would be available at the website. See id. at 15-16.
The Settlement Agreement provided the method for class members to submit requests for exclusion in writing. It also provided the process for objecting to the settlement, including the reservation of the right to appeal final judgment of the settlement. See id. at 16-17.
The Settlement was preliminarily approved by this Court on March 6, 2009.
8

C. Notice to the Class The claims administrator attests that notice went out
to 37,159 putative class members on May 1, 2009, by way of regular mail. See Parties’ Mot. for Class Cert. and Settlement, Affidavit of RSM McGladrey, Inc., Exhibit C. All mail that was undeliverable because of inaccurate addresses was investigated using a locator database to ascertain the correct address and then re-mailed to the members of the class where possible.
The administrator also contracted with a website administrator to create a website that provided information to the class in both English and Spanish. The administrator also established a toll-free phone number and handled incoming telephone calls and written correspondence from prospective class members. See id.
The administrator provided further notice by way of publication in the Philadelphia Tribune, Philadelphia Al Dia and the Philadelphia Daily News on May 4, 2009, and again in the Philadelphia Daily News on August 17, 2009. Finally, the administrator provided notice through television during the weeks of April 27, 2009 and May 4, 2009. See Parties’ Mot. for Class Cert. and Settlement at 1-2.
9

D. The Response of the Class The claims administrator received 7,647 claims forms,
5,321 of which represent claimants who appear in the City’s records, a claims rate of 15%. See id. Exhibit C.1 Five members of the class opted out. See Parties’ Mot. for Class Cert. and Settlement at 2.
The parties report that the individual members of Subclass I will receive approximately $1,400. Members of Subclass II will receive approximately $100. See id.
Due to the volume and response of the class, the administrator spent an extra $211,220.00 above the original $330,000 earmarked for class administration costs. The parties have requested that the Court award an additional $100,000.00 to the administrator, providing a total of $430,000 in administrative costs. See id.
Three objectors submitted written objections to the proposed settlement. Two of the objectors, Kuwsh Muhammad and Thomas R. Mundy, object to issues concerning the second subclass. See Objection of Kuwsh Muhammad; Objection of Thomas R. Mundy. Mr. Muhammad is a member of Subclass II because he was arrested on violent, drug or weapons-related charges. He objects to the difference in recovery amount between the two subclasses. Mr.
1The 2,326 other claims forms are currently marked as ineligible because the individuals who submitted them do not appear in the City’s records.
10

Mundy is a member of Subclass II because of a previous felony conviction. He objects to his exclusion from Subclass I based upon this previous conviction.
The third objector, Aole Blackman/Wright, objects to the fees and costs that will be deducted from the fund. See Objection of Aole Blackman/Wright. None of the objectors appeared at the fairness hearing.
E. Attorney’s Fees, Expenses, and Class Representative Awards Class counsel have requested 30% of the Settlement Fund
for attorney’s fees, which amounts to a payment of $1,770,000.00. See Pl.’s Joint Mot. for Fees and Expenses at 1. Class counsel also seeks reimbursement for out-of-pocket expenses of $70,094.24. See Declaration of Daniel C. Levin of October 2, 2009. Finally, class counsel requests a special award of $15,000 for the two named class representatives. See Pl.’s Joint Mot. for Fees and Expenses at 21-22.
II. Discussion The Court decides the following four questions: A) whether the proposed class can be properly certified under Federal Rule of Civil Procedure 23; B) whether notice to the class regarding the settlement and attorneys’ fees petition was adequate;
11

C) whether the settlement itself is fair, reasonable and adequate; and
D) whether class counsels’ petition for attorneys’ fees, out-of-pocket expenses and special awards to the class representatives should be approved.
As preliminary matter, the Court will discuss the law relating to the constitutionality of a strip-search policy like the one at issue here.
The Supreme Court has held that a court must analyze a prison’s strip-search policy under the Fourth Amendment. See Bell v. Wolfish, 441 U.S. 520 (1979). In Bell, a federal shortterm custodial facility had a policy to strip-search all pretrial detainees after a contact visit with an outside visitor. The Court found that, under the circumstances, the strip-searches conducted under the policy were not unreasonable under the Fourth Amendment. See id. at 559.
In determining the reasonableness of a prison’s search policy, the Bell Court held that courts must balance the prison’s significant and legitimate interests in safety and security with the privacy interests of the individuals. See id. at 559-60. It presented four factors for a court to consider in that balance: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the justification for initiating it; and (4) the place in which it is conducted. See id. at 559.
The Court in Bell found that the prison’s policy was reasonable under this standard because the interest in preventing
12

contraband from entering the prison facility outweighed the privacy interests of the inmates searched. The categorical reasonable suspicion that a prisoner might use contact with an outside visitor to smuggle contraband into the prison justified the invasiveness of the policy. See id. at 558.
Bell’s holding was limited to the specific policy in question, and the Supreme Court left open the question of whether reasonable suspicion must be established to justify a policy to strip-search all incoming inmates or pretrial detainees. Since that time, however, ten Circuit Courts of Appeal and several district courts have addressed the issue.
Courts in eight circuits have held that a policy to strip-search all pre-trial detainees is unconstitutional under Bell.2 These courts interpret Bell to require that a prison have reasonable suspicion that a particular arrestee is concealing weapons or other contraband before conducting a strip-search of that arrestee. Some of these courts have also concluded that Bell allows such reasonable suspicion to be established categorically for certain groups of prison detainees, such as
2See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S. 977 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985), cert. denied, 475 U.S. 1066 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 942 (1982).
13

those charged with felonies or violent or drug-related misdemeanors.3
One circuit court, however, recently broke with the majority and overruled its previous decisions on this issue. See Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2009) (overruling Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001)). The court in Powell held that a blanket strip-search policy for all arrestees can be constitutional under Bell. It reasoned that the Bell balancing test allows for the interest of prison security to outweigh the individual privacy interests of detainees, regardless of whether there is reasonable suspicion that the particular arrestee is concealing weapons or contraband. See id. at 1309-12.
Another circuit is reconsidering its line of cases on the issue4 and rehearing a strip-search case en banc. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), rehearing en banc granted, 558 F.3d 887 (9th Cir. 2009). The Court of Appeals for the Third Circuit has yet to rule on this issue.
3See, e.g., Weber, 804 F.2d at 802; Masters, 872 F.2d at 1255; Mary Beth G., 723 F.2d at 1272.
4See Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir. 1989), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc).
14

The plaintiffs in this case, therefore, would have to establish that the City’s policy was unconstitutional under the Bell standard. To do so, they must show that Bell requires a reasonable suspicion to conduct a strip-search of pre-trial detainees. They must then show that, under the Bell factors, the policy was unreasonable as applied to all persons arrested for misdemeanors and minor crimes, including those charged with violence, drug, or weapons-related crimes and those with a previous felony or violence, drug, or weapons-related misdemeanor conviction.
A. Class Certification A court presented with a joint request for approval of
a class certification and settlement must separate its analysis of the class certification from its determination that the settlement is fair. See In re Insurance Brokerage Antitrust Litigation, 2009 WL 2855855 at *9 (3d Cir. September 8, 2009). To certify a class under Rule 23, a court must find that all four requirements of Rule 23(a) and at least one part of Rule 23(b) are met. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994).
The Settlement Class includes all individuals who were placed into the custody of PPS after being charged with misdemeanors or other minor crimes and were strip-searched upon entry. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. The Settlement Class is then
15

divided into two Subclasses. Subclass I includes all persons in the Settlement Class except those who (1) were arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors. Subclass II includes all members of the Settlement Class excluded from Subclass I.
1. Analysis Under Rule 23(a) Federal Rule of Civil Procedure Rule 23(a) requires that four requirements be met in order for a to be certified: numerosity, commonality, typicality, and adequate representation. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). The Court finds that the four requirements of Rule 23(a) are met.
a. The Numerosity Requirement Rule 23(a)(1) requires a class to be so numerous that joinder of all members is impracticable. Classes exceeding forty or more class members are generally held to meet the numerosity requirement. See Stewart v. Abraham, 275 F.3d 220, 226-227 (3d Cir. 2001). The Settlement Class consists of over 37,000 individuals. Currently, 5,400 of those individuals have
16

submitted verified claims forms. Because joinder of such a large class is impracticable, the plaintiffs satisfy the numerosity requirement.
b. The Commonality Requirement Rule 23(a)(2) requires that there are questions of law or fact common to the class. If class members share at least one question of law or fact in common, factual differences among the claims of the class members do not defeat certification. In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283, 310 (3d Cir. 1998) (In re Prudential). In this case, there is a legal issue common to all class members: whether the defendant’s blanket policy of strip-searching all detainees upon admission was constitutional. This satisfies the Rule 23(a)(2) commonality requirement.
c. The Typicality and Adequacy Requirements Rule 23(a)(3) and (a)(4) require that the claims or defenses of the representative parties be typical of the claims or defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. The Court of Appeals for the Third Circuit has noted that these two inquiries tend to merge because both evaluate the relation of the claims and the potential conflicts between the class
17

representatives and the class in general. Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006).
The typicality inquiry centers on whether the interests of the class representatives align with the interests of the absent class members such that the former is working towards the benefit of the class as a whole. See In re Prudential, 148 F.3d at 311.
Two distinct inquiries comprise the adequacy requirement. See In re Prudential, 148 F.3d at 312. The first inquiry determines whether any significant antagonistic interests or conflicts exist between the class representatives and absent class members. The second inquiry looks to the experience and expertise of class counsel in representing the class. See id.
If a court finds that a single class representative cannot represent the entire class, it may under Rule 23(c)(5) divide a class into subclasses where appropriate. When class members have different claims or defenses or have conflicting or antagonistic interests, subclasses are appropriate. Each subclass is then to be treated as a class within the rule, and each must have its own representative. See id. at 312; Amchem, 521 U.S. at 627.
In this case, the parties have separated the settlement class into two subclasses: Subclass I includes all persons in the Settlement Class except those who (1) were
18

arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors; Subclass II includes all members of the Settlement Class excluded from Subclass I.
The Court finds that the creation of subclasses is appropriate here because each of the two subclasses will have to make a different showing to establish that the City lacked the reasonable suspicion to strip search the subclass members. For the members of Subclass I to prevail on their claims, they must establish both that Bell requires a reasonable suspicion to conduct a strip search of all pre-trial detainees and that the City lacked such a reasonable suspicion with regard to them.
The members of Subclass II, however, will have to make the additional showing that the City could not strip-search them categorically based upon the reasonable suspicion that they are more likely to attempt to smuggle contraband into the prison due to the nature of the charges against them or their criminal history. The members of Subclass II therefore would have to show that reasonable suspicion to strip-search must be established individually and cannot be found categorically.
19

The proposed division into these two subclasses is reflected in the decisions of other courts,5 in that courts
routinely certify classes with definitions excluding individuals violence, drug, or weapons-related charges.6
The class representatives in this case have claims
typical of, and no interests antagonistic to, members of their
respective subclasses. Mr. Byrd who, represents Subclass I, was
charged with a non-violence, drug or weapons-related misdemeanor
and had no previous criminal history. Ms. Boone represents
Subclass II. Although she was arrested for a non-violence, drug
or weapons-related crime, she had a criminal history involving
violent crimes.
Finally, class counsel in this case has substantial
experience in litigating complex civil rights actions. They have
served as class counsel in at least twenty strip-search class
actions. Class counsel have also vigorously represented the
5At least one other district court has created subclasses along similar lines. See Ford v. City of Boston, 154 F.Supp.2D 131, 135 (D. Ma. 2001).
6See, e.g., Miracle v. Bullitt County, Ky., 2008 WL 3850477 (W.D. Ky. Aug. 15, 2008); Florence v. Bd. of Chosen Freeholders of County of Burlington, 2008 WL 800970, *6 (D.N.J. March 20, 2008); Johnson v. District of Columbia, 248 F.R.D. 46, 50 (D.D.C. 2008); Bull v. City and County of San Francisco, 539 F.3d 1193, 1195 (9th Cir. 2008); Sutton v. Hopkins County, 2007 WL 119892, *1 (W.D. Ky. Jan. 11, 2007); Tardiff v. Knox County, 218 F.R.D. 332, 336 (D. Me. 2004); Nilsen v. York County, 219 F.R.D. 19, 25 (D. Me. 2003); McBean v. City of New York, 228 F.R.D. 487, 490 (S.D.N.Y. 2005); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607, 623 (W.D. Wis. 2003).
20

class through four years of litigation, including discovery and motion practice. They fulfill the adequacy requirement of Rule 23(a).
For these reasons, the Court finds that the four requirements of Rule 23(a), numerosity, commonality, typicality and adequacy, are met in this case.
2. Analysis Under Rule 23(b) Once a court determines that the requirements of Rule 23(a) are met, it must consider whether the action is maintainable under one of the three parts of Rule 23(b). The parties seek to have this class certified under Rule 23(b)(3). Rule 23(b)(3) allows certification only if the questions of law or fact common to class members predominate over any questions affecting only individual members and if a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. This is commonly broken out into the so-called “predominance” and “superiority” requirements. See In re: Ins. Brokerage Antitrust Litigation, 2009 WL 2855855 at *10. Rule 23(b)(3) also provides a non-exhaustive list of factors to aid the court in determining whether a class action is the best method of adjudication: (1) the class members' interests in individually controlling the prosecution or defense
21

of separate actions; (2) the extent and nature of any litigation concerning the controversy already begun by or against class members; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the likely difficulties in managing a class action. Although the fourth factor has been held to be not relevant in a settlementonly class certification, the other requirements of the rule “demand undiluted, even heightened, attention in the settlement context.” Amchem, 521 U.S. at 620.
a. The Predominance Requirement Under Rule 23(b)(3), a court must determine that common questions of law or fact predominate over any questions affecting only individual members. Predominance is found when common questions represent a significant part of the case and can be resolved for all members of the class in a single adjudication. See 7AA Charles A. Wright, et al., Federal Practice and Procedure § 1778 (3d ed. 2005). To establish predominance, the plaintiffs must show by a preponderance of the evidence that the elements of their claim can be proven by evidence common to all in their class. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311-12 (3d Cir. 2008). For the members of Subclass I, the question is whether the City’s policy of strip-searching all pre-trial detainees in
22

the absence of reasonable suspicion violates the Fourth Amendment. General evidence of the policy and its blanket application to the subclass members will be required to prove the subclass’s claim. Evidence of the circumstances of each individual search would not be necessary to prove this claim. This has led many courts to conclude that the common question of the constitutionality of such a blanket strip-search policy as applied to members of classes similar to Subclass I meets the predominance requirement.7
Members of Subclass II would need to prove that the City’s policy was unconstitutional as applied to arrestees charged with violence, drug or weapons-related crimes or arrestees with a previous felony or violence, drug or weaponsrelated misdemeanor conviction. The members of this subclass must not only show that the City’s policy was unconstitutional as applied to all arrestees, but also that the City was constitutionally required to establish reasonable suspicion for each individual arrestee before conducting a search. This common question of whether individualized reasonable suspicion is constitutionally required predominates over any individual questions within this subclass.
7See, e.g., Florence, 2008 WL 800970 at *12; Johnson, 248 F.R.D. at 56-57 (D.D.C. 2008); Sutton, 2007 WL 119892, *6-*9; Tardiff v. Knox County, 365 F.3d 1, 5-7 (1st Cir. 2004); Blihovde, 219 F.R.D. at 620-22; Maneely v. City of Newburgh, 208 F.R.D. 69, 76-77 (S.D.N.Y. 2001).
23

Within each subclass, then, a common issue predominates over any individual claims, and the elements of each claim can be proven with evidence common to all. The predominance requirement under Rule 23(b)(3) is therefore satisfied.
b. The Superiority Requirement Under the superiority requirement, the court asks whether a class action, rather than individual litigation, is the best method for achieving a fair and efficient adjudication. See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001). A class action in this case saves the time, effort and expense of litigating the claims of as many as 37,000 class members individually and guarantees uniform treatment of individual class members within their respective subclasses. The parties have not identified, and the Court is not aware of, any other strip-search litigation involving PPS or the City of Philadelphia. Because it is generally desirable to concentrate many smaller claims into a single forum, a class action is appropriate in this case. A class action is the superior method for adjudicating this particular matter. Finding that the requirements of Rule 23(a) and Rule 23(b)(3) are met, the Court hereby certifies the class as presented by the parties.
24

B. Notice Under Rule 23(c)(2)(B), notice must be given to
potential class members by the best notice practicable under the circumstances for all classes certified under Rule 23(b)(3). This includes individual notice to all potential class members that can be identified through reasonable effort. Notice must, in clear, concise and plain language, state: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues or defenses; (iv) the class member’s right to enter an appearance by an attorney; (v) the class member’s right to be excluded from the class; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of settlement on class members. See Rule 23(c)(2)(B). A court must determine that notice was appropriate before evaluating the merits of the settlement itself. See, e.g., In re Prudential, 148 F.3d at 32627.
In this case, the notice given met the requirements of Rule 23(c)(2)(3). The notice, in all of the forms in which it was disseminated, described the proposed settlement, its terms, and the nature of the claim filed on behalf of the class. It also described the class members’ right to object or to be excluded from the settlement, including their opportunity to be
25

heard at the fairness hearing, and the binding effect of the settlement on those who choose not to opt out.
Individual notice forms were mailed to 37,159 identified class members. Those notifications that were returned as undeliverable were re-sent if another address could be found using a locator database. Notice was also provided by way of publication in the Philadelphia Tribune, Philadelphia Al Dia and the Philadelphia Daily News and through television advertisements. See Parties’ Mot. for Class Cert. and Settlement, at 1-2.
Because individual notices were sent to all identified class members and because the notice was widely disseminated through local publications and television broadcasts, the Court finds that the notice given meets the requirements of Rule 23(c)(2)(B).
C. Approval of the Settlement In order to approve a class settlement, a court must
find that the settlement is fair, reasonable and adequate and in the best interests of the class under Rule 23(e). In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 785 (3d Cir. 1995) (In re General Motors). When considering a class settlement, the “court plays
26

the important role of protector of the [absent class members’] interests, in a sort of fiduciary capacity.” Id.
In Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), the Court of Appeals for the Third Circuit set forth the following nine specific factors that a district court should consider in determining whether a settlement is fair, reasonable and adequate: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 157.
Applying these factors, the Court is satisfied that the Settlement is fair, reasonable and adequate to the class members.
1. The Risks of Establishing Liability and Damages The risks of establishing liability and the risk of establishing damages will be discussed first because these two factors require close attention here. The Court concludes that
27

there is a risk of establishing liability in this case, due to the uncertainty of the law on the constitutionality of blanket strip-search policies such as the one used by the City. Even if liability is established, the Court concludes that there is a risk of establishing damages. The Court further concludes that, because of the increased risk for the members of Subclass II, the creation of the subclasses and corresponding difference in settlement amounts is fair, reasonable and adequate under these factors.
a. The Constitutionality of the Defendant’s Strip-Search Policy
The status of the case law surrounding the constitutionality of the use of blanket strip-search policies in the prison context has become increasingly uncertain. Courts in several circuits have held that, under Bell, the constitution requires strip and visual body cavity searches to be justified by at least a reasonable suspicion that the individual arrestee is concealing contraband or weapons.8 These courts have held that it is unconstitutional for a prison to have blanket policies that circumvent a minimal-threshold of reasonable suspicion for arrestees charged with misdemeanors and other minor crimes.
The Court of Appeals for the Eleventh Circuit’s recent
8See supra at n. 2. 28

decision in Powell rejecting this reading of Bell has created a split in the circuits on this issue. See Powell, 541 F.3d at 1314. The Court of Appeals for the Ninth Circuit has also decided to reconsider its line of cases on the issue and re-hear a strip-search case en banc. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), rehearing en banc granted, 558 F.3d 887 (9th Cir. 2009).
The Court of Appeals for the Third Circuit has yet to decide this issue. The District Court of New Jersey, however, recently certified the following question to the Court of Appeals for interlocutory appeal: “Whether a blanket policy of strip searching all inmates upon admission to a county correctional facility is violative of the inmates' constitutional rights?” See Florence v. Bd. of Chosen Freeholders of County of Burlington, 2009 WL 1971328 at *3 (D.N.J. June 30, 2009).
The law concerning the constitutionality of the defendant’s blanket strip-search policy has therefore become increasingly uncertain. Although this issue may have appeared to be more settled at the outset of litigation, the recent decision in Powell, the decision of the Court of Appeals for the Ninth Circuit to reconsider its precedent en banc, and the Court of Appeals for the Third Circuit’s forthcoming consideration of the issue come together to make the state of the law more uncertain today.
29

Even if the plaintiffs were able to establish the City’s liability, the amount of damages owed to the class members would present a challenge to the plaintiffs. Calculating the value of the plaintiffs’ claims will depend upon a number of variables, including the circumstances and severity of the search and the effect of the search on the class members. A consideration of damages also weighs towards settlement.
b. The Increased Risks of Liability for the Members of Subclass II
The Court must also decide whether the disparity in recovery amounts between the subclasses is fair, reasonable and adequate. The Court concludes that the limited recovery to members of Subclass II is fair, reasonable and adequate when considering the increased risk to the members of Subclass II in establishing liability.
Courts in at least two circuits have stated that a violent or drug-related charge alone creates a reasonable suspicion that would allow prison authorities to strip-search pretrial detainees like those placed in Subclass II. See Masters, 872 F.2d at 1255 (“It is objectively reasonable to conduct a strip search of one charged with a crime of violence before that person comes into contact with other inmates”); Mary Beth G., 723 F.2d at 1272 (distinguishing the constitutionality of strip-searches where there is no reasonable suspicion for
30

pretrial detainees held on “inherently dangerous” crimes from the unconstitutionality of strip searches of “minor offenders”). Under this view, even if a court were to find that a blanket strip-search policy was unconstitutional as applied to the members of Subclass I, it could still find that the policy was constitutional as applied to individuals charged with violence, drug or weapons-related crimes. These members of Subclass II, therefore, have more of a risk in establishing liability than the members of Subclass I.
Class definitions in similar strip-search class actions often exclude individuals with violence, drug or weapons-related charges.9 In this case, these subclass members will still receive some relief, which is a more generous result than similarlysituated individuals in other cases have received. This fact, coupled with the greater risk in establishing liability, makes the settlement for these members of Subclass II under the fourth and fifth Girsh factors fair, adequate and reasonable.
There is similar support for the inclusion of individuals with preexisting felony or violence, drug or weaponsrelated misdemeanor convictions in Subclass II. At least one court has explicitly held that reasonable suspicion exists to
9See, e.g., Bull, 539 F.3d at 1195; McBean, 228 F.R.D. at 490; Tardiff v. Knox County, 365 F.3d at 5 (1st Cir. 2004), affirming Nilsen v. York County, 219 F.R.D. 19, 19-20 (D. Me. 2003) and Tardiff v. Knox County, 218 F.R.D. 332, 336 (D. Me. 2004); Sutton, 2007 WL 119892 (W.D. Ky. Jan. 11, 2007).
31

strip-search all temporary detainees with prior records of felony or violence, drug or weapons misdemeanor-misdemeanor convictions. See Smith v. Montgomery County, Md., 643 F.Supp. 435, 439 (D. Md. 1989) (“Reasonable suspicion also exists to strip search all temporary detainees with prior records of convictions or unresolved arrests for felony offenses, or for misdemeanors involving weapons or contraband”). Other courts have held that a detainee's prior record is at least relevant in determining whether or not reasonable suspicion exists.10 For similar reasons to those charged with violence, drug or weapons-related crimes, then, individual class members who are included within this category also stand an increased risk of not establishing liability than the members of Subclass I.
2. The Complexity, Expense, and Likely Duration of the Litigation
The first Girsh factor, the complexity, duration, and expense of the litigation, weighs towards settlement in this
10See Giles, 746 F.2d at 617 (“Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record”); Boyd, 613 F.Supp. at 1525 (finding that reasonable suspicion “could be based on the nature of the offense, the detainee's criminal history, the demeanor of the individual, and the results of any other search ... which the defendants may choose to conduct”); Ninneman, 612 F.Supp. at 1071; Hunter, 672 F.2d at 671 (noting that the strip-searched parties had never been convicted of a drug offense).
32

case. At trial, the plaintiffs would face the task of proving the unconstitutionality of the defendant’s policy, which would be complex, expensive and, as discussed in more detail above, risky. These facts make settlement the best option under the first Girsh factor.
3. The Reaction of the Class to the Settlement The second factor, reaction of the class, also favors approval of the settlement. Out of over 37,000 potential class members, only three have formally objected. A low number of objectors compared to the number of potential class members creates a strong presumption in favor of approving the settlement. See In re Cendant Corp. Litigation, 264 F.3d 201, 234-35 (3d Cir. 2001). Moreover, only five class members chose to opt out of the class. The fact that so few potential class members objected to or opted out of the settlement supports a finding of general acceptance of the settlement in the class.
4. The Stage of the Proceedings and the Amount of Discovery Completed
The third factor, the stage of the proceeding and the amount of discovery, similarly weighs towards acceptance of the settlement. Post-discovery settlements are more likely to reflect the true value of the claim. Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir. 1993). Discovery has been extensive
33

here, with numerous depositions taken and hundreds of documents reviewed by the parties. The discovery and other investigations that the parties have undertaken render them sufficiently informed to make a determination about the fairness of a settlement.
5. The Risks of Maintaining the Class Action Through Trial and the Ability of the Defendants to Withstand a Greater Judgment
The sixth and seventh Girsh factors, the risk of maintaining the class action through trial and the ability of the defendants to withstand a greater judgment, are neutral issues in this particular case.
Although there are no factors to indicate a likelihood that this class could not have been maintained through trial, there is always some risk of decertification in any class action. The risk of decertification is therefore present here, but it is no more substantial than the risk present in any class action.
Similarly, the defendants in this case, a major city, should under normal circumstances be able to withstand a greater judgment. Taking into consideration the current financial situation of the City, however, the plaintiffs do have cause to be genuinely concerned about the ability of the defendant to allocate its resources to a greater judgment.
34

6. The Reasonableness of the Settlement in Light of the Best Possible Recovery and the Attendant Risks of Litigation
Finally, the eighth and ninth factors, the reasonableness of the settlement in light of the best possible recovery and the attendant risks of litigation, support approval of the settlement. The reasonableness of a proposed settlement depends in part upon a comparison of the present value of the damages the plaintiffs would recover if successful, discounted by the risks of not prevailing. In re General Motors, 55 F.3d at 806.
Considering the risks of litigation and the uncertainty of the law in this area, the disparity between the settlement amount and a possibly greater recovery amount is reasonable. Moreover, the approximately $1400 granted to the members of Subclass I is commensurate with the amounts received by class members in settlements of similar actions.11 The approximately $100 granted to the members of Subclass II is also fair given that individuals meeting the definition of Subclass II are often completely excluded from recovery in strip-search cases. Because
11See Hicks v. The County of Camden, 05-cv-1857 (D.N.J. June 9, 2008) (awarding an estimated $1,025 per claimant); McBean v. City of New York, 233 F.R.D. 377, 388 (S.D.N.Y. 2006) (awarding either $750 or $1000 per claimant, depending upon the number of times the prisoner was searched); Kahler v. County of Rensselaer, No. 03-cv-1324 (N.D.N.Y. 2004) (awarding $1,000 per claimant) Doan v. Watson, 2002 WL 1730917 (S.D. Ind. Dec. 4, 2002) (awarding $1,000 per claimant).
35

of the risk that the class members might not recover at all and because the amounts received are commensurate with, and even exceed, the amounts awarded in similar class actions, these last two factors weigh towards granting the settlement.
After applying the Girsh factors, the Court concludes that the settlement is fair, reasonable and adequate under Rule 23(e). All but two of the Girsh factors weigh in favor of approving the settlement. Those other two factors are neutral. For these reasons, the Court approves the Settlement under Rule 23(e).
D. The Attorneys’ Fee Petition Class counsel in a class action who recovers a common
fund for the benefit of persons other than himself or his client is entitled to a fair and reasonable award of attorneys’ fees from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). Class counsel calculate their fee award using the percentage-of-recovery method, which is the method favored in common fund cases. See In re General Motors, 148 F.3d at 333. They also use the alternative method of fee calculation, the lodestar method, as a cross-check in order to ensure that the fee amount is reasonable. See, e.g., In re Insurance Brokerage Antitrust Litigation, 2009 WL 2855855 at *31.
36

As a result of these calculations, class counsel seek an award of attorney’s fees of 30% of the $5.9 million settlement fund, which amounts to $1,770,000. Class counsel also seek a reimbursement of out-of-pocket expenses of $70,094.24. They also request that the Court award an additional $100,000.00 to the claims administrator. Finally, class counsel request an award to the class representatives of $15,000 each.
The Court finds that all of these requests are reasonable and grants class counsels’ motion.
1. The Reasonableness of the Fees When the percentage-of-recovery method is used to determine attorneys’ fees in a common fund case, the Court of Appeals for the Third Circuit requires the district courts to consider seven factors for determining the reasonableness of the fee. Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000). These are: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases. Gunter, 223 F.3d at 195 n.1.
37

All factors weigh in favor of approving the attorneys’ fee petition in this case.
The first Gunter factor, the size of the fund created and number of persons benefitted, favors the fee amount, as class counsel were able to obtain a sizable result, $5.9 million, for a potential class of 37,000 individuals.
The second factor, the number of substantial objections, also weighs in class counsels’ favor. Only three objections have been entered to the settlement generally and just one to the proposed attorney’s fees and costs.
The third factor, the skill and efficiency of the attorneys involved, supports approval of the attorneys’ fee request. Class counsel are highly skilled in this area and have conducted at least twenty other strip-search class actions. The submissions made in this case were thorough and of high quality. Finally, class counsel worked effectively and efficiently to bring this action to settlement. The skill and efficiency brought to this action by class counsel support the fee request.
The fourth and fifth factors, the complexity and duration of the litigation and the risk of nonpayment, also support approval of class counsels’ fee request. As discussed above, this case involves a complicated issue of constitutional law, the outcome of which has become increasingly uncertain over the time of this litigation. Class counsels’ work was performed
38

on a contingent basis, and they have not been reimbursed. Given the four years spent on this litigation, the fee requested is reasonable for the time, effort and risk involved.
The sixth factor, the amount of time devoted by counsel, supports the fee amount. Class counsel documents 2,857.65 hours of contingent work on this litigation, justifying the amount requested in their petition. This determination is confirmed by the reasonable outcome of the lodestar cross-check, as discussed below.
The seventh Gunter factor, the awards granted in similar cases, also supports the fee amount. The percentage of 30% requested by class counsel is within the range the percentages granted in similar cases and class action settlements generally. A study referenced by another court in this district analyzed 289 class action settlements ranging from under $1 million to $50 million and determined that the average attorneys’ fees percentage to be 31.71% and the median to be one-third. In re Rite Aid Corp. Securities Litigation, 146 F.Supp.2d 706, 735 (E.D.Pa. 2001) (affirming a fee amount of 25%). Furthermore, a 30% fee percentage is commensurate with other strip-search class actions conducted by class counsel.12
12See Suggs v. Cumberland County, 1:06-CV-00087 (D.N.J.) (approving a 30% fee percentage); Boiselle v. Mercer County, 3:06-CV-2065 (D.N.J.) (same); Clark v. County of Salem, 07-CV2259 (D.N.J.) (same); Hicks v. County of Camden, 1:05-CV-1854 (D.N.J.) (approving a 27.5% fee percentage).
39

Under the Gunter factors, then, an attorneys’ fee award of 30% of the fund is reasonable.
The lodestar cross-check analysis further supports the reasonableness of the attorney’s fees. Under the lodestar method, the court calculates the proper fee by multiplying the number of hours spent on the litigation by an appropriate hourly rate. See In re General Motors, 55 F.3d at 819 n.37. Although the resulting multiplier need not fall within any pre-defined range, the Court of Appeals for the Third Circuit has noted that multiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied. See In re Prudential, 148 F.3d at 341.
In this case, class counsels’ requested fee produces a multiplier of 2.3 using the historic rate calculation, a method by which hours expended by each attorney are grouped into historical time periods and multiplied by the attorney’s hourly rate for that time period.13 A multiple of 2.3 reached under the historic rate calculation is safely within the reasonable multiplier range and confirms the reasonableness of class counsels’ fee request.
13Courts also use the “current lodestar method,” by which the total hours expended by each attorney are multiplied by that attorney's hourly rate at the conclusion of the case. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 283-84 (1980); New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir. 1983). Class counsel reports that under this method “the lodestar amount would be higher but the multiplier would be lower.” Pl.’s Joint Mot. for Fees and Expenses at 20 n.9.
40

2. Reimbursement of Out-of-Pocket Expenses Class counsel have requested additional reimbursement in the amount of $70,094.24 for their out-of-pocket expenses for the management of the common fund for the benefit of the class members. Class counsel provided a breakdown for each firm or lawyer that separates the out-of-pocket expenses into broad categories. The categories include amounts spent for postage, mail and courier services; photocopying; telephone and facsimile; filing and litigation fees; meals, hotels, and transportation; publications; research; and assessments. The totals for each category are reasonable expenses for a large, complex, multi-year litigation. Finally, class counsel has requested that the Court grant an additional $100,000.00 to the administrator for extra class administration costs. This request is reasonable and is granted. The Court therefore approves class counsels’ request for an award of out-of-pocket expenses in the amount of $70,094.24 and the award of an additional $100,000.00 to the claims administrator.
41

3. Awards to the Class Representatives Class counsel requests a special award of $15,000 for each class representative. Other strip-search settlements provide similar awards to class representatives.14 These awards, though high, are justified by the benefit provided to the absent class members. The class representatives have accepted the public exposure of the fact that they have been placed into custody and charged with a crime. They do so for the benefit of the class, and the Court finds that these awards are reasonable compensation for the sacrifice of their anonymity.
V. Conclusion For the reasons herein stated, the Court grants the
plaintiffs’ and defendant’s Motion for Final Approval of Settlement and Class Certification. The Court hereby certifies the class and approves the settlement in this class action as described in that motion.
The Court also grants class counsels’ Joint Motion for Fees and Expenses.
An appropriate Order shall issue separately.
14See Hicks v. City of Camden, No. 05-CV-1857 (awarding $15,000 to two class representatives); Suggs v. Cumberland County, 1:06-CV-00087 (D.N.J.) (same); Boiselle v. Mercer County, 3:06-CV-2065 (D.N.J.) (awarding $20,000 to one class representative); McBean v. City of New York, 233 F.R.D. 377, 39192 (S.D.N.Y. 2006) (awarding between $25,000 and $35,000 to class representatives).
42

 
 CLOSED, SEALDC, SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:05-cv-01851-MAM

BOONE v. CITY OF PHILADELPHIA et al

Date Filed: 04/21/2005

Assigned to: HONORABLE MARY A. MCLAUGHLIN Date Terminated: 11/03/2009

Cause: 42:1983 Civil Rights Act

Jury Demand: None

Nature of Suit: 440 Civil Rights:

Other

Jurisdiction: Federal Question

Plaintiff
NAKISHA BOONE BOTH INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED

represented by CHARLES JOSEPH LADUCA CUNEO GILBERT & LADUCA, LLP 507 C STREET, NE WASHINGTON , DC 20002 202-789-3960 Fax: 202-789-1813 Email: charlesl@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

DANIEL C. LEVIN LEVIN, FISHBEIN, SEDRAN & BERMAN 510 WALNUT STREET SUITE 500 PHILADELPHIA , PA 19106 Email: dlevin@lfsblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELMER ROBERT KEACH , III LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 RIVERFRONT CENTER P.O. BOX 70 AMSTERDAM , NY 12010 518-434-1718 Email: bobkeach@nycap.rr.com

Plaintiff GEORGE BYRD
V. Defendant CITY OF PHILADELPHIA

LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARY E. MASON MASON LLP 1625 MASSACHUSETTS AVE NW SUITE 605 WASHINGTON , DC 20036 Email: gmason@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALEXANDRA WARREN CUNEO GILBERT & LADUCA 507 C. STREET, NE WASHINGTON , DC 20002 202-789-3960 Email: awarren@cuneolaw.com ATTORNEY TO BE NOTICED
CHRISTOPHER G HAYES LAW OFFICES OF CHRISTOPHER G. HAYES 225 SOUTH CHURCH STREET WEST CHESTER , PA 19382 610-431-9505 Fax: 610-431-1269 Email: chris@chayeslaw.com ATTORNEY TO BE NOTICED
represented by ELMER ROBERT KEACH , III (See above for address) LEAD ATTORNEY
DANIEL C. LEVIN (See above for address) ATTORNEY TO BE NOTICED
represented by CRAIG M. STRAW CITY OF PHILADELPHIA LAW DEPARTMENT

1515 ARCH STREET 14TH FLOOR PHILA , PA 19102 215-683-5447 Email: craig.straw@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY M. SCOTT ARCHER & GREINER ONE LIBERTY PL 32ND FL 1650 MARKET ST. PHILADELPHIA , PA 19103-7393 215-963-3300 Email: jscott@archerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
LYNNE A. SITARSKI CITY OF PHILADEPHIA LAW DEPARTMENT CHIEF DEPUTY CITY SOLICITOR 1515 ARCH STREET 14TH FLOOR PHILADELPHIA , PA 19102 215-683-5442 TERMINATED: 11/08/2007 LEAD ATTORNEY
ELEANOR N. EWING CITY OF PHILA. LAW DEPT. 1515 ARCH ST. 17TH FL. PHILADELPHIA , PA 19102 215-683-5012 Fax: 215-683-5296 Email: eleanor.ewing@phila.gov ATTORNEY TO BE NOTICED
KELLY DIFFILY PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET 17TH FLOOR PHILADELPHIA , PA 19102 215-683-5010

Defendant PHILADELPHIA PRISON SYSTEM TERMINATED: 05/17/2006
Defendant LEON KING, II ESQUIRE TERMINATED: 05/17/2006
Defendant CHARLES J. GRANT ESQUIRE

Fax: 215-683-5296 Email: kelly.diffily@phila.gov ATTORNEY TO BE NOTICED
MARK MAGUIRE PHILADELPHIA OFFICE OF CITY SOLICITOR 1515 ARCH STREET PHILADELPHIA , PA 19102 215-683-5447 Email: mark.maguire@phila.gov ATTORNEY TO BE NOTICED
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address)

TERMINATED: 05/17/2006
Defendant PAUL LANCASTER ADAMS TERMINATED: 05/17/2006
Defendant LISETTE SHIRDAN-HARRIS ESQUIRE TERMINATED: 05/17/2006
Defendant WESLEY PINNOCK ESQUIRE TERMINATED: 05/17/2006

TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006

Defendant ELEANOR M. KAHANA TERMINATED: 05/17/2006
Defendant REGINALD HAMMOND TERMINATED: 05/17/2006
Defendant JOHN MURPHY TERMINATED: 05/17/2006

LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY

Defendant ROBERT TOMASZEWSKI TERMINATED: 05/17/2006
V. Movant KUWSH MUHAMMAD Movant KUWSH MUHAMMAD

LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by JEFFREY M. SCOTT (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
LYNNE A. SITARSKI (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY
ELEANOR N. EWING (See above for address) TERMINATED: 05/17/2006
represented by KUWSH MUHAMMAD 8001 STATE ROAD PP#991-755 HOUSE OF CORRECTIONS PHILADELPHIA, PA 19136 PRO SE

Date Filed 04/21/2005

# Docket Text
1 COMPLAINT against WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL

04/21/2005 04/21/2005 05/17/2005
05/18/2005 05/23/2005 06/16/2005

LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS ( Filing fee $ 250 receipt number 915788.), filed by NAKISHA BOONE.(ti, ) (Entered: 04/22/2005)
Eleven Original Summons Issued as to WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS. Forwarded To: Counsel on 4/22/05 (ti, ) (Entered: 04/22/2005)
DEMAND for Trial by Jury by NAKISHA BOONE. (ti, ) (Entered: 04/22/2005)
2 SUMMONS Returned Executed by NAKISHA BOONE re: Eric Zeiss served Summons and Complaint upon ELEANOR KAHANA on behalf of WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS by 5/2/05. WESLEY PINNOCK served on 5/2/2005, answer due 5/23/2005; ELEANOR M. KAHANA served on 5/2/2005, answer due 5/23/2005; REGINALD HAMMOND served on 5/2/2005, answer due 5/23/2005; JOHN MURPHY served on 5/2/2005, answer due 5/23/2005; ROBERT TOMASZEWSKI served on 5/2/2005, answer due 5/23/2005; CITY OF PHILADELPHIA served on 5/2/2005, answer due 5/23/2005; PHILADELPHIA PRISON SYSTEM served on 5/2/2005, answer due 5/23/2005; LEON KING, II served on 5/2/2005, answer due 5/23/2005; CHARLES J. GRANT served on 5/2/2005, answer due 5/23/2005; PAUL LANCASTER ADAMS served on 5/2/2005, answer due 5/23/2005; LISETTE SHIRDAN-HARRIS served on 5/2/2005, answer due 5/23/2005. (stb, ) (Entered: 05/17/2005)
3 First MOTION for Extension of Time to File Answer re 1 Complaint, and/or Motion to Dismiss filed by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS.. (Attachments: # 1 Exhibit "A"-Complaint)(SCOTT, JEFFREY) (Entered: 05/18/2005)
4 ORDER THAT DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME IS GRANTED. THE DEFENDANTS SHALL FILE A MOTION OR ANSWER TO THE PLAINTIFFS' COMPLAINT ON OR BEFORE 7/5/05; ETC.. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 5/23/05. 5/23/05 ENTERED AND E-MAILED.(jl, ) (Entered: 05/23/2005)
5 ANSWER to Complaint with Certificate of Service by WESLEY

06/16/2005
07/14/2005
07/22/2005 07/22/2005 07/26/2005 07/26/2005
07/29/2005 08/01/2005
10/03/2005

PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDANHARRIS.(SCOTT, JEFFREY) (Entered: 06/16/2005)
6 NOTICE of Hearing: RULE 16 STATUS CONFERENCE SET FOR 7/27/2005 04:30 PM IN JUDGE'S CHAMBERS, ROOM 3809, UNITED STATES COURTHOUSE, 601 MARKET STREET, PHILADELPHIA, BEFORE THE HONORABLE MARY A. McLAUGHLIN. (cps, ) (Entered: 06/16/2005)
7 ORDER THAT THE TIME FOR THE FILING OF THE CLASS CERTIFICATION MOTION WILL BE HELD IN ABEYANCE UNTIL THE RULE 16 CONFERENCE SCHEDULED FOR 7/27/05. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 7/13/05. 7/14/05 ENTERED AND COPIES E-MAILED.(stb, ) (Entered: 07/14/2005)
8 NOTICE of Firm name Change of Charles J. LaDuca, certificate of service. (sc, ) (Entered: 07/22/2005)
9 MOTION for Limited Admission of Associate Counsel Pro Hac Vice filed by NAKISHA BOONE.Certificate of Service.(LEVIN, DANIEL) (Entered: 07/22/2005)
10 MOTION for Limited Admission of Gary Mason, Esquire Pro Hac Vice filed by NAKISHA BOONE.Certificate of Service.(LEVIN, DANIEL) (Entered: 07/26/2005)
11 ORDER THAT THE MOTION FOR ADMISSION PRO HAC VICE OF GARY MASON ON BEHALF OF NAKISHA BOONE IS GRANTED. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 7/26/05.7/27/05 ENTERED AND COPIES MAILED AND FAXED. (stb, ) (Entered: 07/27/2005)
12 SCHEDULING ORDER: DISCOVERY DUE BY 11/15/2005. MOTIONS DUE BY 12/2/2005. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 7/28/05. 7/29/05 ENTERED AND COPIES MAILED AND EMAILED.(stb, ) (Entered: 07/29/2005)
13 ORDER THAT THE MOTION FOR ADMISSION PRO HAC VICE OF CHARLES LADUCA ON BEHALF OF NAKISHA BOONE IS GRANTED. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 7/28/05. 8/1/05 ENTERED AND COPIES MAILED AND FAXED.(stb, ) (Entered: 08/01/2005)
14 MOTION for Limited Admission of Elmer Robert Keach, III, Esquire, Pro Hac Vice filed by NAKISHA BOONE.Certificate of Service.(LEVIN, DANIEL) (Entered: 10/03/2005)

10/03/2005 11/08/2005 11/09/2005
11/09/2005 12/02/2005 01/03/2006
01/04/2006

15 ORDER THAT THE MOTION BY PLAINTIFF FOR ELMER ROBERT KEACH TO APPEAR PRO HAC VICE IS GRANTED; ETC.. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 10/3/05.10/4/05 ENTERED AND COPIES MAILED.(jl, ) (Entered: 10/04/2005)
16 MOTION for Extension of Time to File Motion for Summary Judgment filed by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS.Certificate of Service.(SCOTT, JEFFREY) (Entered: 11/08/2005)
17 ORDER THAT DEFENDANTS' UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR SUMMARY JUDGMENT IS GRANTED. PARTIES SHALL HAVE UNTIL 1/9/2006 TO FILE MOTION FOR SUMMARY JUDGMENT. PARTIES SHALL HAVE UNTIL 2/10/2006 TO FILE AN OPPOSITION TO ANY MOTION FOR SUMMARY JUDGMENT. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 11/8/05.11/9/05 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 11/09/2005)
Set/Reset Deadlines: MOTIONS DUE BY 1/9/2006. (le, ) (Entered: 11/14/2005)
18 NOTICE of Appearance by LYNNE A. SITARSKI on behalf of WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS (SITARSKI, LYNNE) (Entered: 12/02/2005)
19 Joint MOTION for Extension of Time to File Summary Judgment and Motion to Set Further Briefing Schedule filed by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDANHARRIS.Certificate of Service.(SITARSKI, LYNNE) (Entered: 01/03/2006)
20 ORDER THAT JOINT MOTION TO AMEND SCHEDULING ORDER IS GRANTED AND PLAINTIFF SHALL FILE ANY MOTION FOR SUMMARY JUDGMENT BY 1/23/2006. DEFENDANTS SHALL FILE ANY MOTION FOR SUMMARY JUDGMENT AND SHALL FILE THEIR OPPOSITION BRIEF TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT BY 2/24/06. ANY REPLY BRIEF SHALL BE FILED BY THE PLAINTIFF BY 3/3/2006. SIGNED BY JUDGE MARY

01/04/2006 01/23/2006
01/24/2006 02/24/2006 02/24/2006 02/28/2006

A. MCLAUGHLIN ON 1/3/06.1/4/06 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 01/04/2006)
Set/Reset Deadlines: MOTIONS DUE BY 2/24/2006. (le, ) (Entered: 01/04/2006)
21 MOTION for Partial Summary Judgment filed by NAKISHA BOONE.Motion for Partial Summary Judgment. (Attachments: # 1 Affidavit Affidavit of Nakisha Boone# 2 Affidavit Affidavit of Daniel C. Levin# 3 Affidavit Affidavit of Elmer Robert Keach, III# 4 Exhibit Exhibit A to Keach Affirmation -- Boone Arrest and Booking Documents# 5 Exhibit Exhibit B to Keach Affirmation -- Philadelphia Prison System Strip Search Policy# 6 Exhibit Exhibit C to Keach Affirmation -Plaintiff's Notice of Rule 30(b)(6) deposition# 7 Exhibit Exhibit D to Keach Affirmation, part 1 - Dinubile Deposition, p. 1-39# 8 Exhibit Exhibit D to Keach Affirmation, part 2 -- dinubile deposition, pp. 40-99# 9 Exhibit Exhibit D to Keach Affirmation, part 3 -- dinubile deposition, pp. 100-135# 10 Exhibit Exhibit D to Keach Affirmation -- DiNubile Deposition, pp. 136-170# 11 Exhibit Exhibit D to Keach Affirmation, part 5 -- Dinubile Deposition, pp. 171-190# 12 Exhibit Exhibit E to Keach Affirmation -- Plaintiff's Complaint# 13 Exhibit Exhibit F to Keach Affirmation -- Defendant's Answer# 14 Supplement Statement of Material Facts# 15 Text of Proposed Order # 16 Supplement Certificate of Service)(LEVIN, DANIEL) (Entered: 01/24/2006)
22 Memorandum of Law In Support of Docket Entry 21 RE: MOTION for Partial Summary Judgment filed by NAKISHA BOONE. (LEVIN, DANIEL) Modified on 1/25/2006 (np). (Entered: 01/24/2006)
23 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS.Memorandum, Certificate of Service.(EWING, ELEANOR) (Entered: 02/24/2006)
24 EXHIBITS To Memorandum Of Law In Support Of Defts' Motion For Summary Judgment And In Opposition To Plff's Motion For Summary Judgment by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS. (jmp, ) (Entered: 02/27/2006)
25 ORDER THAT ORAL ARGUMENT IS SET FOR 4/26/2006 AT 9:30 AM IN COURTROOM 13 A BEFORE HONORABLE MARY A.

03/01/2006 03/02/2006
03/08/2006 03/23/2006 03/23/2006
03/23/2006 03/27/2006 03/28/2006

MCLAUGHLIN. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 2/28/06. 2/28/06 ENTERED AND COPIES MAILED AND EMAILED.(le, ) (Entered: 02/28/2006)
26 STIPULATION regarding due dates for Response to Motion for Summary Judgment by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/2/2006 (np). (Entered: 03/01/2006)
27 STIPULATION AND ORDER THAT PLAINTIFF'S REPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS DUE BY 3/24/2006. DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS DUE BY 4/7/2006. IF IT IS DEEMED NECESSARY, PLAINTIFFS WILL TAKE THE DEPOSITION OF A DESIGNEE OF DEFENDANT ON 3/20/06. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 3/1/06. 3/2/06 ENTERED AND COPIES MAILED AND FAXED.(le, ) (Entered: 03/02/2006)
28 NOTICE by NAKISHA BOONE of change of address of Gary E. Mason, Esquire (Attorney for Plaintiff) (LEVIN, DANIEL) (Entered: 03/08/2006)
29 STIPULATION regarding the cross-motions for summary judgment by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/24/2006 (np). (Entered: 03/23/2006)
30 STIPULATION that plaintiff's response to defendant's motion for summary judgment is due on 3/27/06 and defendants' reply to plaintiff's response to motion for summary judgment is due on 4/10/06. by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/24/2006 (np). (Entered: 03/23/2006)
31 JOINT STIPULATION AND ORDER THAT PLFF'S RESPONSE TO DEFTS' MOTION FOR SUMMARY JUDGMENT IS DUE ON 3/27/06 AND DEFTS' REPLY IS DUE ON 4/10/06. . SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 3/23/06. 3/24/06 ENTERED AND COPIES MAILED AND FAXED.(pr, ) (Entered: 03/24/2006)
32 Letter Motion RE: MOTION for Extension of Time to File Response to Defendants' Motion for Summary Judgment filed by NAKISHA BOONE. (KEACH, ELMER) Modified on 3/29/2006 (np). (Entered: 03/27/2006)
33 ORDER THAT PLAINTIFF'S REQUEST FOR AN EXTENSION OF TIME TO FILE A RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS GRANTED AND PLAINTIFF MUST RESPOND TO DEFENDANTS' MOTION FOR SUMMARY

03/28/2006 03/28/2006 03/28/2006 04/06/2006
04/07/2006 04/11/2006
04/27/2006 05/04/2006

JUDGMENT BY TODAY. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 3/28/06.3/28/06 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 03/28/2006)
Set/Reset Deadlines as to 23 MOTION for Partial Summary Judgment. RESPONSES DUE BY 3/28/2006. (le, ) Modified on 3/30/2006 (le, ). (Entered: 03/28/2006)
34 REPLY to Response to Motion re 21 MOTION for Partial Summary Judgment, 23 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by NAKISHA BOONE. (Attachments: # 1 Memorandum of Law# 2 Certificate of Service)(KEACH, ELMER) (Entered: 03/28/2006)
Set/Reset Deadlines as to 23 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment. RESPONSES DUE BY 3/28/2006. (le, ) (Entered: 03/30/2006)
35 STIPULATION Extending Date of Reply Brief in Further Support of Defendants' Motion for Summary Judgment to April 11, 2006 by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS. (EWING, ELEANOR) **(FILED IN ERROR BY ATTY., STIPULATION FORWARDED TO JUDGE FOR APPROVAL)** Modified on 4/7/2006 (fh) (Entered: 04/06/2006)
36 STIPULATION AND ORDER THAT DEFENDANT'S REPLY BRIEF TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS DUE BY 4/11/06. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 4/7/06. 4/7/06 ENTERED AND COPIES MAILED AND FAXED.(le, ) (Entered: 04/07/2006)
37 REPLY to Response to Motion re 23 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS. (EWING, ELEANOR) (Entered: 04/11/2006)
38 Minute Entry for proceedings held before Judge MARY A. MCLAUGHLIN : Oral Argument held on 4/27/2006. Court Reporter: R. Wolf. Argument of Counsel. Court's Holding CAV. (le, ) (Entered: 04/27/2006)
39 TRANSCRIPT of Proceedings held on 4/26/06 before Judge MARY A.

05/15/2006 05/17/2006 05/17/2006
06/05/2006 06/06/2006 06/08/2006
08/14/2006

MCLAUGHLIN. Court Reporter: R. Wolf. (le, ) (Entered: 05/04/2006)
40 Minute Entry for proceedings held before Judge MARY A. MCLAUGHLIN : Telephone Conference held on 5/15/06 (le, ) (Entered: 05/15/2006)
41 STIPULATION Dismissing Individual Defendants & Defendant Philadelphia Prison System by WESLEY PINNOCK, ELEANOR M. KAHANA, REGINALD HAMMOND, JOHN MURPHY, ROBERT TOMASZEWSKI, CITY OF PHILADELPHIA, PHILADELPHIA PRISON SYSTEM, LEON KING, II, CHARLES J. GRANT, PAUL LANCASTER ADAMS, LISETTE SHIRDAN-HARRIS. (EWING, ELEANOR) (Entered: 05/17/2006)
42 ORDER THAT THE FOLLOWING DEFENDANTS ARE DISMISSED FROM THIS ACTION WITH PREJUDICE; PHILADELPHIA PRISON SYSTEM, LEON KING, II; CHARLES J. GRANT; PAUL LANCASTER ADAMS; LISETTE SHIRDAN-HARRIS; WESLEY PINNOCK; ELANOR M. KAHANA; REGINALD HAMMOND; JOHN MURPHY AND ROBERT TOMASZEWSKI. THE CITY OF PHILADELPHIA REMAINS A DEFENDANT IN THIS CASE. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 5/17/06. 5/18/06 ENTERED AND COPIES MAILED AND E-MAILED. (jpd) (Entered: 05/18/2006)
43 STIPULATION and Proposed Scheduling Order by CITY OF PHILADELPHIA. (EWING, ELEANOR) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 6/7/2006 (np). (Entered: 06/05/2006)
44 STIPULATION AND ORDER THAT ALL DISCOVERY TAKEN IN SUPPORT OF PLFF'S MOTION FOR CLASS CERTIFICATION WILL BE COMPLETED BY 11/6/2006, ETC. PLFF SHALL FILE & SERVE PLFF'S MOTION FOR CLASS CERTIFICATION ON OR BEFORE 2/5/2007, ETC. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 6/5/06. 6/7/06 ENTERED AND COPIES MAILED AND FAXED.(kw, ) (Entered: 06/07/2006)
45 ORDER THAT PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS DENIED WITHOUT PREJUDICE AND THAT THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS DENIED WITHOUT PREJUDICE. THE APRTIES ARE FREE TO RENEW THEIR MOTIONS FOR SUMMARY JUDGMENT AFTER THE ISSUE OF CLASS CERTIFICATION IS RESOLVED. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 6/8/06. 6/9/06 ENTERED AND COPIES MAILED AND E-MAILED. (jpd) (Entered: 06/09/2006)
46 First MOTION for Discovery filed by NAKISHA BOONE, Certificate of Service. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C#

08/16/2006 08/21/2006 08/28/2006 08/28/2006 09/15/2006
10/05/2006 02/01/2007
02/06/2007

4Certificate of Service)(LEVIN, DANIEL) Modified on 8/17/2006 (cdd, ). (Entered: 08/14/2006)
47 ORDER THAT THE PLFF'S MOTION TO COMPEL AND WHEREAS, IN A LETTER OF THIS DATE, THE PLFF. WITHDREW THE SAID MOTION, IT IS HEREBY ORDERED THAT THE PLFF'S MOTION TO COMPEL IS DENIED WITHOUT PREJUDICE AS MOOT. . SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 8/16/06.8/16/06 ENTERED AND COPIES MAILED, AND E-MAILED. (pr, ) (Entered: 08/16/2006)
48 NOTICE of Appearance by MARK MAGUIRE on behalf of CITY OF PHILADELPHIA with Certificate of Service (MAGUIRE, MARK) (Entered: 08/21/2006)
49 STIPULATION and Order Concerning Confidentiality of Documents and Material by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 8/29/2006 (np). (Entered: 08/28/2006)
50 Amended Stipulation and Order Concerning Confidentiality of Documents and Material by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 8/29/2006 (np). (Entered: 08/28/2006)
51 AMENDED STIPULATION AND ORDER CONCERNING CONFIDENTIALITY OF DOCUMENTS AND MATERIAL THAT DEFENDANT'S DISCLOSURE TO PLAINTIFF OF THE RECORDS AND INFORMATION CONTAINED THEREIN, SHALL BE MARKED "CONFIDENTIAL" IN A MANNER THAT WILL NOT INTERFERE WITH THE LEGIBILITY THEREOF, ETC...... SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 9/15/06. 9/18/06 ENTERED AND COPIES MAILED AND FAXED.(afm, ) (Entered: 09/18/2006)
52 ORDER THAT DISCOVERY SHALL CONTINUE UNTIL 11/20/2006. ALL OTHER DEADLINES IN THE COURT'S SCHEDULING ORDER OF 6/6/2006 REMAIN IN EFFECT. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 10/5/06. 10/5/06 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 10/05/2006)
53 STIPULATION that Plaintiff is granted an extension to file plaintiffs' motion for class certification until February 16, 2007, Defendant is granted an extension to file and serve any opposing brief until March 16, 2007 and plaintiff is granted an extension to file and serve any reply briefs until March 30, 2007 by NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 2/2/2007 (np). (Entered: 02/01/2007)
54 ORDER THAT PLAINTIFF IS GRANTED AN EXTENSION TO FILE

02/16/2007 02/16/2007 02/16/2007 02/16/2007
02/16/2007

MOTION FOR CLASS CERTIFICATION UNTIL 2/16/2007. DEFENDANT IS GRANTED AN EXTENSION TO FILE AND SERVE ANY OPPOSING BRIEFS UNTIL 3/16/07. PLAINTIFF IS GRANTED AN EXTENSION TO FILE AND SERVE ANY REPLY BRIEFS UNTIL 3/30/2007. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 2/6/07. 2/6/07 ENTERED AND COPIES MAILED AND FAXED.(le, ) Additional attachment(s) added on 5/24/2007 (le, ). (Entered: 02/06/2007)
55 MOTION to Amend/Correct Plaintiff's Class Action Complaint filed by NAKISHA BOONE.Memorandum, Certificate of Service.(LEVIN, DANIEL) (Entered: 02/16/2007)
56 MOTION to Certify Class filed by NAKISHA BOONE.Notice of Motion, Proposed Order, Certificate of Service (FIRST AMENDED COMPLAINT ATTACHED). (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service)(KEACH, ELMER) Modified on 2/21/2007 (afm, ). (Entered: 02/16/2007)
57 Memorandum in Support re 56 MOTION to Certify Class filed by NAKISHA BOONE. (KEACH, ELMER) (Entered: 02/16/2007)
58 AFFIDAVIT in Support re 56 MOTION to Certify Class filed by NAKISHA BOONE. (Attachments: # 1 Exhibit A -- Affidavit of Nakisha Boone# 2 Exhibit B -- Boone Arrest and Booking Documents# 3 Exhibit C -- March 2006 Stipulation Regarding Nakisha Boone# 4 Exhibit D -Boone Deposition Transcript# 5 Exhibit E, Part 1 -- DiNubile Deposition Transcript, pp. 1-39# 6 Exhibit E, Part 2 -- DiNubile Deposition Transcript, pp. 40-99# 7 Errata E, Part 3 -- DiNubile Deposition Transcript, pp. 100-135# 8 Exhibit E, Part 4 -- DiNubile Deposition Transcript, pp. 136-170# 9 Exhibit E, Part 5 -- DiNubile Deposition Transcript, pp. 171-190# 10 Exhibit E1 -- City of Philadelphia Written Strip Search Policy# 11 Exhibit F, Part 1 -- Harold Deposition Transcript, pp. 1-53# 12 Exhibit F, Part 2 -- Harold Deposition Transcript, pp. 54162# 13 Exhibit G -- Singelton Deposition Transcript# 14 Exhibit H -Bryant Deposition Transcript# 15 Exhibit I -- Firm Resumes, Proposed Class Counsel)(KEACH, ELMER) Modified on 2/20/2007 (np). (Entered: 02/16/2007)
59 AFFIDAVIT in Support re 56 MOTION to Certify Class with continuation of exhibits filed by NAKISHA BOONE. (Attachments: # 1 Exhibit J -Preliminary Approval Order, Kahler v. County of Rensselaer# 2 Exhibit K -- Preliminary Approval Order, McDaniel v. County of Rensselaer# 3 Exhibit L -- Bulk Graphite Products Decision# 4 Exhibit M -- Bart Dal Ponte decision# 5 Exhibit N -- Blain v. Smithkline Beecham decision# 6 Exhibit O -- Nilsen v. York County decision# 7 Exhibit P -- Spinner v. City of New York decision# 8 Exhibit Q -- Eddleman v. Jefferson County decision# 9 Exhibit R -- Bowers v. City of Philadelphia decision# 10

02/20/2007 02/21/2007 02/23/2007 02/28/2007 03/13/2007
03/23/2007

Exhibit S -- Hydrogen Peroxide Antitrust decision# 11 Exhibit T -- Sutton v. Hopkins County decision# 12 Exhibit U -- Calvin v. Sheriff of Will County decision# 13 Exhibit V -- Bench Decision, Tyson v. City of New York# 14 Exhibit W -- Cigna Corporation Decision# 15 Exhibit X -Delandro v. County of Allegheny Memorandum Decision and Orders# 16 Exhibit Y -- Riverside Correctional Facility Admissions Report)(KEACH, ELMER) (Entered: 02/16/2007)
60 ORDER THAT PLAINTIFF'S MOTION TO AMEND THE CLASS ACTION COMPLAINT TO ADD CLASS REPRESENTATIVE, GEORGE BYRD IS GRANTED AS UNCONTESTED. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 2/20/07.2/20/2007 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 02/20/2007)
61 NOTICE of Appearance by ALEXANDRA WARREN on behalf of NAKISHA BOONE with Certificate of Service(WARREN, ALEXANDRA) (Entered: 02/21/2007)
62 FIRST AMENDED CLASS ACTION COMPLAINT AGAINST DEFENDANT CITY OF PHILADELPHIA, FILED BY PLAINTIFFS GEORGE BYRD, NAKISHA BOONE, CERTIFICATE OF SERVICE.(jpd) Additional attachment(s) added on 3/1/2007 (le, ). (Entered: 02/26/2007)
63 ORDER THAT A TELEPHONE CONFERENCE IS SET FOR 3/7/2007 AT 9:30 AM BEFORE HONORABLE MARY A. MCLAUGHLIN. PLAINTIFF'S COUNSEL SHALL INITIATE THE CALL. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 2/27/07. 2/28/07 ENTERED AND COPIES MAILED AND E-MAILED.(le, ) (Entered: 02/28/2007)
64 ORDER THAT DEFENDANT SHALL FILE ANY OPPOSITION TO THE MOTION FOR CLASS CERTIFICATION BY 4/16/2007 AND THE PLAINTIFFS SHALL FILE ANY REPLY BY 4/23/2007. THE PLAINTIFFS SHALL FILE ANY MOTION FOR A PRELIMINARY INJUNCTION BY 3/23/2007. THE DEFENDANT SHLL FILE ANY OPPOSITION BY 3/23/2007 AND THE PLAINTIFFS SHALL FILE ANY REPLY BY 4/27/2007. THE COURT WILL HEAR ORAL ARGUMENT ON BOTH MOTIONS ON 5/10/2007 AT 9:30 AM IN COURTROOM 13A BEFORE THE HONORABLE MARY A. MCLAUGHLIN. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 3/13/07. 3/14/07 ENTERED AND COPIES MAILED AND EMAILED.(le, ) (Entered: 03/14/2007)
65 MOTION for Preliminary Injunction filed by GEORGE BYRD, NAKISHA BOONE.Notice of Motion, Affirmation of Counsel, Exhibits, Memorandum of Law, Certificate of Service, Proposed Order. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Exhibit A -PPS Strip Search Policy# 3 Exhibit B -- DiNublie Dep., p. 1-39# 4 Exhibit

04/02/2007 04/16/2007
04/23/2007

B -- DiNubile Dep., pp. 40-99# 5 Exhibit B -- DiNubile Dep., pp. 100135# 6 Exhibit B -- DiNubile Dep., pp. 136-170# 7 Exhibit B -- DiNubile Dep., pp. 171-190# 8 Exhibit C -- Singleton Dep.# 9 Exhibit D -- Harold Dep., pp. 1-53# 10 Exhibit D -- Harold Dep., pp. 54-162# 11 Exhibit E -Bryant Dep.# 12 Exhibit F -- Bender Dep.# 13 Memorandum of Law# 14 Text of Proposed Order # 15 Certificate of Service)(KEACH, ELMER) (Entered: 03/23/2007)
66 NOTICE of Appearance by KELLY DIFFILY on behalf of CITY OF PHILADELPHIA with Certificate of Service(DIFFILY, KELLY) (Entered: 04/02/2007)
67 RESPONSE in Opposition re 56 MOTION to Certify Class asdf filed by CITY OF PHILADELPHIA, AFFIRMATION, CERTIFICATE OF SERVICE. (Attachments: # 1 Affidavit Affirmation re: Exhibits# 2 Exhibit Ex. A, Pt. 1, Boone Probation Info 8/30/00# 3 Exhibit Ex. A, Pt. 2, Boone Probation Info 8/30/00# 4 Exhibit Ex. A, Pt. 3, Boone Probation Info 8/30/00# 5 Exhibit Ex. B, Pt. 1, Boone Crim Compl. 8/30/00# 6 Exhibit Ex. B, Pt. 2, Boone Crim. Compl. 8/30/00# 7 Exhibit Ex. C, Boone Guilty Plea 8/30/00# 8 Exhibit Ex. D, Boone Arrest Info 8/2/03# 9 Exhibit Ex. E, Boone Bench Warrant# 10 Exhibit Ex. F, Pt. 1, Boone 10/22/04 Bench Warrant Stop# 11 Exhibit Ex. F, Pt. 2, Boone 10/22/04 Bench Warrant Stop# 12 Exhibit Ex. G, Pt. 1, Byrd Dep pp. 1-15# 13 Exhibit Ex. G, Pt. 2, Byrd Dep pp. 16-30# 14 Errata Ex. G, Pt. 2, Byrd Dep pp. 31-45# 15 Exhibit Ex. G, Pt. 2, Byrd Dep pp. 46-60# 16 Exhibit Ex. G, Pt. 2, Byrd Dep pp. 61-75# 17 Exhibit Ex. G, Pt. 6, Byrd Dep pp. 76-90# 18 Exhibit Ex. G, Pt. 7, Byrd Dep pp. 91-105# 19 Exhibit Ex. G, Pt. 8, Byrd Dep pp. 106-120# 20 Exhibit Ex. G, Pt. 9, Byrd Dep pp. 121-134# 21 Exhibit Ex. H, Pt. 1, Police Dir. 7# 22 Exhibit Ex. H, Pt. 2, Police Dir. 7# 23 Exhibit Ex. I, Harris v. City Settlement Approval)(EWING, ELEANOR) Modified on 4/17/2007 (afm, ). (Entered: 04/16/2007)
68 RESPONSE in Opposition re 65 MOTION for Preliminary Injunction filed by CITY OF PHILADELPHIA, MEMORANDUM, CERTIFICATE OF SERVICE. (Attachments: # 1 Exhibit Exhibit Table of Contents# 2 Affidavit Ewing Affirmation re Exhibits# 3 Exhibit Exhibit A Part 1 (Healy aff,)# 4 Exhibit Exhibit A Part 2 (Healy aff.)# 5 Exhibit Exhibit B (Harris settlement)# 6 Exhibit Exhibit C (Caper affid.)# 7 Exhibit Exhibit D (DiNubile affid.)# 8 Exhibit Exhibit E (Sesto affid.)# 9 Exhibit Exhibit F (Tomaszewski affid.)# 10 Exhibit Exhibit G Part 1 (Bender affid.)# 11 Exhibit Exhibit G Part 2 (Bender affid.)# 12 Exhibit Exhibit G Part 3 (Bender affid.)# 13 Exhibit Exhibit G Part 4 (Bender affid.)# 14 Exhibit Exhibit G Part 5 (Bender affid.)# 15 Exhibit Exhibit G Part 6 (Bender affid.)# 16 Exhibit Exhibit G Part 7 (Bender affid.)# 17 Exhibit Exhibit G Part 8 (Bender affid.)# 18 Exhibit Exhibit G Part 9 (Bender affid.))(EWING, ELEANOR) Modified on 4/24/2007 (afm, ). (Entered: 04/23/2007)

04/23/2007 04/25/2007 04/26/2007 05/01/2007 05/02/2007 05/03/2007
05/08/2007 05/09/2007

69 REPLY to Response to Motion re 56 MOTION to Certify Class filed by GEORGE BYRD, NAKISHA BOONE, CERTIFICATE OF SERVICE. (Attachments: # 1 Appendix Affidavit of Elmer Keach# 2 Exhibit Exhibit A to Keach Affidavit --- Defendants' Answer# 3 Exhibit Exhibit B to Keach Affidavit -- Unreported Decision, Kelsey v. County of Schoharie# 4 Certificate of Service)(KEACH, ELMER) Modified on 4/24/2007 (afm, ). (Entered: 04/23/2007)
70 STIPULATION that plaintiffs are granted an extension to file Plaintiffs' Reply Memorandum of Law in Further Support of Plaintiffs' Motion for a Preliminary Injunction until May 2, 2007 by GEORGE BYRD, NAKISHA BOONE. (LEVIN, DANIEL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 4/26/2007 (np). (Entered: 04/25/2007)
71 STIPULATION AND ORDER THAT PLAINTIFFS SHALL HAVE AN EXTENSION UNTIL 5/2/2007 TO FILE A REPLY IN FURTHER SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 4/25/07. 4/26/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 04/26/2007)
72 LETTER STATUS REPORT Providing Supplemental Authority in Support of Plaintiffs' Motion for Class Certification by GEORGE BYRD, NAKISHA BOONE. (Attachments: # 1 Decision, Young v. County of Cook)(KEACH, ELMER) Modified on 5/2/2007 (afm, ). (Entered: 05/01/2007)
73 STIPULATION for Extension to File Reply Memorandum by CITY OF PHILADELPHIA. (DIFFILY, KELLY) Modified on 5/3/2007 (afm, ). (FILED IN ERROR BY ATTORNEY, FORWARDED TO JUDGE FOR APPROVAL) (Entered: 05/02/2007)
74 REPLY to Response to Motion re 65 MOTION for Preliminary Injunction filed by GEORGE BYRD, NAKISHA BOONE, AFFIRMATION, CERTIFICATE OF SERVICE. (Attachments: # 1 Affirmation of Elmer Keach# 2 Exhibit A to Keach Affirmation -- Plaintiffs' Memo of Law, previously submitted on March 28, 2006# 3 Exhibit B to Keach Affirmation -- Unreported Decision, Delandro v. County of Allegheny# 4 Exhibit C to Keach Affirmation -- Chart providing analysis of contraband records, prepared by class counsel# 5 Certificate of Service)(KEACH, ELMER) Modified on 5/4/2007 (afm, ). (Entered: 05/03/2007)
75 Minute Entry for proceedings held before Judge MARY A. MCLAUGHLIN : Telephone Conference held on 5/7/07 (jmp, ) (Entered: 05/08/2007)
76 ORDER THAT PLAINTIFF'S SCHEDULE IS ADOPTED AND THE

05/24/2007 05/24/2007 05/25/2007 06/28/2007 06/29/2007 07/03/2007
07/20/2007 07/25/2007

PARTIES SHALL DISCLOSE WITNESSES THEY INTEND TO CALL AT THE HEARING BY 5/24/2007 AND COMPLETE DEPOSITIONS OF THE WITNESSES BY 6/14/2007. IT IS FURTHER ORDERED THAT THE HEARING AND ORAL ARGUMENT ON BOTH PENDING MOTIONS SHALL TAKE PLACE ON 6/28/2007 AT 9:30 AM IN COURTROOM 13A BEFORE HONORABLE MARY A. MCLAUGHLIN. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 5/9/07. 5/10/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 05/10/2007)
77 Witness List for Preliminary Injunction Hearing by GEORGE BYRD, NAKISHA BOONE. (KEACH, ELMER) Modified on 5/25/2007 (fh) (Entered: 05/24/2007)
78 CERTIFICATE OF SERVICE by GEORGE BYRD, NAKISHA BOONE re 77 Witness List (KEACH, ELMER) (Entered: 05/24/2007)
79 Report Of Dr. Susan Cox, Plaintiffs' Expert Witness AND EXPERT DISCLOSURE F.R.C.P. 26 by GEORGE BYRD, NAKISHA BOONE, CERTIFICATE OF SERVICE. (Attachments: # 1 Certificate of Service)(KEACH, ELMER) Modified on 5/29/2007 (afm, ). (Entered: 05/25/2007)
80 ORDER THAT THIS MATTER IS REFERRED TO US MAGISTRATE JUDGE ELIZABETH T. HEY FOR SETTLEMENT CONFERENCE. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 6/28/07. 6/28/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 06/28/2007)
81 Minute Entry for proceedings held before Judge MARY A. MCLAUGHLIN : Motion Hearing held on 6/28/07 re 65 MOTION for Preliminary Injunction filed by NAKISHA BOONE, GEORGE BYRD, 56 MOTION to Certify Class filed by NAKISHA BOONE Court Reporter: Ray Wolf.James DiNubile sworn. (le, ) (Entered: 06/29/2007)
82 ORDER THAT A SETTLEMENT CONFERENCE IS SET FOR 7/24/2007 AT 9:30 AM IN JUDGE'S CHAMBERS BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY.EACH PARTY IS DIRECTED TO SUBMIT A CONFIDENTIAL SETTLEMENT MEMORANDUM AS OUTLINED HEREIN, NO LATER THAN FOUR BUSINESS DAYS PRIOR TO THE DATE OF THE CONFERENCE. SIGNED BY JUDGE MARY A. MCLAUGHLIN ON 7/3/07. 7/5/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 07/05/2007)
83 Settlement Memorandum by CITY OF PHILADELPHIA. (MAGUIRE, MARK) Modified on 7/23/2007 (afm, ). (Entered: 07/20/2007)
84 ORDER THAT THIS MATTER SHALL BE PLACED IN CIVIL SUSPENSE UNTIL FURTHER NOTICE. SIGNED BY JUDGE MARY

07/25/2007 08/03/2007
08/03/2007
08/22/2007 08/24/2007 08/28/2007
08/28/2007
10/23/2007 11/01/2007 11/07/2007

A. MCLAUGHLIN ON 7/24/07. 7/25/07 ENTERED AND COPIES EMAILED.(le, ) (Entered: 07/25/2007)
85 Minute Entry for proceedings held before Judge ELIZABETH T. HEY : Settlement Conference held on 7/24/07. (le, ) (Entered: 07/25/2007)
86 ORDER THAT A SETTLEMENT CONFERENCE FOR DEFENDANTS ONLY, IS SET FOR 8/22/2007 AT 10:00 AM IN JUDGE'S CHAMBERS, ROOM 5918 BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY. SIGNED BY JUDGE ELIZABETH T. HEY ON 8/3/07. 8/3/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 08/03/2007)
87 ORDER THAT A SETTLEMENT CONFERENCE FOR PLAINTIFFS ONLY IS SET FOR 9/6/2007 AT 10:00 AM IN JUDGE'S CHAMBERS, ROOM 5918 BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY. SIGNED BY JUDGE ELIZABETH T. HEY ON 8/3/07. 8/3/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 08/03/2007)
88 Minute Entry for proceedings held before Judge ELIZABETH T. HEY : Settlement Conference held on 8/22/07. (le, ) (Entered: 08/22/2007)
89 Minute Entry for proceedings held before Judge ELIZABETH T. HEY : Settlement Conference held on 8/22/07. (le, ) (Entered: 08/24/2007)
90 ORDER THAT A SETTLEMENT CONFERENCE FOR DEFENDANTS ONLY IS SET FOR 10/29/2007 AT 10:00 AM IN JUDGE'S CHAMBERS, ROOM 5918 BEFORE HONORABLE ELIZABETH T. HEY. SIGNED BY JUDGE ELIZABETH T. HEY ON 8/27/07. 8/28/07 ENTERED AND COPIES E-MAILED.(le, ) Modified on 8/28/2007 (le, ). (Entered: 08/28/2007)
91 ORDER THAT A TELEPHONE CONFERENCE FOR PLAINTIFFS ONLY IS SET FOR 10/29/2007 AT 3:00 PM BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY. SIGNED BY JUDGE ELIZABETH T. HEY ON 8/27/07. 8/28/07 ENTERED AND COPIES E-MAILED.(le, ) (Entered: 08/28/2007)
92 Minute Entry for proceedings held before Judge ELIZABETH T. HEY : Settlement Conference held on 10/22/07. (le, ) (Entered: 10/23/2007)
93 Minute Entry for proceedings held before Judge Elizabeth T. Hey: Settlement Conference held on 10/29/07. (rf, ) (Entered: 11/01/2007)
94 ORDER THAT A SETTLEMENT CONFERENCE SET FOR 12/20/2007 09:30 AM IN COURTROOM 6 BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY.SIGNED BY JUDGE ELIZABETH T. HEY ON 11/06/07. 11/08/07 ENTERED AND COPIES E-MAILED.(rf, ) (Entered: 11/08/2007)

11/14/2007 11/14/2007 11/30/2007 12/26/2007 12/26/2007
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03/27/2008 03/28/2008 04/01/2008 04/03/2008 04/08/2008 04/14/2008

95 NOTICE of Appearance by CHRISTOPHER G HAYES on behalf of NAKISHA BOONE (HAYES, CHRISTOPHER) (Entered: 11/14/2007)
96 NOTICE of Appearance by CRAIG M. STRAW on behalf of CITY OF PHILADELPHIA with Certificate of Service(STRAW, CRAIG) (Entered: 11/14/2007)
97 STIPULATION by CITY OF PHILADELPHIA. (DIFFILY, KELLY) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 12/3/2007 (nd). (Entered: 11/30/2007)
98 Minute Entry for proceedings held before MAGISTRATE JUDGE ELIZABETH T. HEY: Settlement Conference held on 12/20/07. (rf, ) (Entered: 12/26/2007)
99 ORDER THAT A SETTLEMENT CONFERENCE SET FOR 1/30/2008 10:00 AM IN COURTROOM 6 BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY.SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 12/20/07. 12/26/07 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 12/26/2007)
100 ORDER THAT SETTLEMENT CONFERENCE RESET FOR 3/31/2008 09:30 AM IN NIX BUILDING BEFORE MAGISTRATE JUDGE ELIZABETH T. HEY. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 1/24/08. 1/28/08 ENTERED AND COPIES EMAILED.(ah) (Entered: 01/28/2008)
101 NOTICE by GEORGE BYRD, NAKISHA BOONE Notice of Supplemental Authority fo Plaintiffs in Support of Plaintiffs' Motion for Preliminary Injunction (LEVIN, DANIEL) (Entered: 03/27/2008)
102 NOTICE by GEORGE BYRD, NAKISHA BOONE Notice of Supplemental Authority of Plaintiffs in Support of Plaintiffs' Motion for Class Certification (LEVIN, DANIEL) (Entered: 03/28/2008)
103 Minute Entry for proceedings held before HONORABLE ELIZABETH T. HEY: Settlement Conference held on 3/31/08. (rf, ) Modified on 4/2/2008 (rf, ). (Entered: 04/02/2008)
104 Minute Entry for proceedings held before MAGISTRATE JUDGE ELIZABETH T. HEY: Settlement Conference held on 4/2/08. (rf, ) (Entered: 04/04/2008)
105 Minute Entry for proceedings held before MAGISTRATE JUDGE ELIZABETH T. HEY: Settlement Conference held on 4/7/08. (rf, ) (Entered: 04/08/2008)
106 Minute Entry for proceedings held before MAGISTRATE JUDGE ELIZABETH T. HEY: Settlement Conference held on 4/11/08. (rf, )

04/17/2008 04/17/2008 04/22/2008
05/29/2008 05/29/2008 05/30/2008
06/18/2008 07/15/2008
07/22/2008

(Entered: 04/14/2008)
107 ORDER THAT A SETTLEMENT CONFERENCE IS SCHEDULED FOR MAY 29, 2008, AT 9:30 A.M., IN CHAMBERS, ROOM 13614. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 04/16/08. 04/18/08 ENTERED AND COPIES E-MAILED.(ac, ) (Entered: 04/18/2008)
108 ORDER THAT THT MOTION TO REMAND IS GRANTED, ETC. THIS CASE IS HEREBY DISMISSED. SIGNED BY HONORABLE LEGROME D. DAVIS ON 04/16/08. 04/18/08 ENTERED AND COPIES E-MAILED.(ac, )(FILED IN ERROR) (Entered: 04/18/2008)
109 ORDER THAT A CONFIDENTIAL SETTLEMENT MEMORANDUM OF NO MORE THAN 6 TYPED DOUBLE-SPACED PAGES, IS DUE NO LATER THAN 3:00 PM ON 05/24/08, AS OUTLINED HEREIN.SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 4/22/08. 4/23/08 ENTERED AND COPIES E-MAILED (rf, ) (Entered: 04/23/2008)
110 Minute Entry for proceedings held before HONORABLE MARY A. MCLAUGHLIN: Settlement Conference held on 5/29/08. (rf, ) (Entered: 05/29/2008)
111 STATUS REPORT and Request for Scheduling of Oral Argument on Pending Class Certification Motion by GEORGE BYRD, NAKISHA BOONE. (KEACH, ELMER) (Entered: 05/29/2008)
112 ORDER THAT ORAL ARGUMENT ON THE CLASS CERTIFICATION MOTION IS SET FOR 7/24/2008 09:30 AM IN COURTROOM 13A BEFORE HONORABLE MARY A. MCLAUGHLIN. PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (DOC. 65) IS DENIED WITHOUT PREJUDICE.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 5/30/08. 6/2/08 ENTERED AND COPIES E-MAILED(rf, ) (Entered: 06/02/2008)
113 NOTICE by GEORGE BYRD, NAKISHA BOONE of Supplemental Authority of Plaintiffs in Support of Plaintiffs' Motion for Class Certification (LEVIN, DANIEL) (Entered: 06/18/2008)
114 ORDER THAT THE ORAL ARGUMENT ON THE CLASS CERTIFICATION MOTION SCHEDULED FOR JULY 24, 2008, IS RESCHEDULED FOR SEPTEMBER 3, 2008, @ 9:30 AM IN COURTOOM 13-A, ETC. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 7/15/08. 7/16/08 ENTERED AND COPIES EMAILED.(sc, ) (Entered: 07/16/2008)
115 ORDER THAT ORAL ARGUMENT ON THE CLASS CERTIFICATION MOTION CURRENTLY SCHEDULED FOR

02/20/2009
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05/26/2009 06/11/2009 06/25/2009 07/31/2009 08/04/2009
09/22/2009

07/24/08 IS CANCELLED, THE CASE SHALL BE PLACED IN SUSPENSE UNTIL 9/30/08; THE PARTIES SHALL UPDATE THE COURT AS TO THEIR PROGRESS NO LATER THAN 09/30/08.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 7/22/08. 7/23/08 ENTERED AND COPIES E-MAILED(rf, ) (Entered: 07/23/2008)
116 MOTION for Approval Plaintiffs' and Defendant's Motion for Preliminary Approval of Settlement and Provisional Class Certification filed by GEORGE BYRD, NAKISHA BOONE.Memorandum of Law, Certificate of Service. (Attachments: # 1 Exhibit Exhibit 1 part 1, # 2 Exhibit Exhibit 1 part 2)(LEVIN, DANIEL) (Entered: 02/20/2009)
117 SETTLEMENT AGREEMENT by GEORGE BYRD, NAKISHA BOONE. (Attachments: # 1 Exhibit Exhibits A-E)(LEVIN, DANIEL) (Entered: 02/20/2009)
118 ORDER APPROVING PRELIMINARY SETTLEMENT AS OUTLINED HEREIN.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/4/09. 3/6/09 ENTERED AND COPIES EMAILED.(rf, ) (Additional attachment(s) added on 3/6/2009: # 1 ORDER) (rf, ). (Entered: 03/06/2009)
119 OBJECTION TO CLASS SETTLEMENT by KUWSH MUHAMMAD. (rf, ) (Entered: 05/26/2009)
120 Letter to The Honorable Mary A. McLaughlin from Thomas R. Mundy with regards to certain facts. (rf, ) (Entered: 06/11/2009)
121 Letter from Aole Blackmon asking to appear before Court to discuss certain matters. (rf, ) (Entered: 06/25/2009)
122 MOTION for Approval to Authorize Change in Notice filed by GEORGE BYRD, NAKISHA BOONE.Certificate of Service.(LEVIN, DANIEL) (Entered: 07/31/2009)
123 ORDER THAT PLAINTIFFS' AND DEFENDANT'S MOTION TO COURT TO AUTHORIZE CHANGE IN NOTICE IS GRANTED. THE PARTIES SHALL PROVIDE NOTICE TO THE CLASS ON 8/17/09 IN THE FORM ATTACHED AS EXHIBIT "B" TO PLAINTIFFS' AND DEFENDANT'S MOTION TO COURT TO AUTHORIZE CHANGE IN NOTICE.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 8/4/09.8/4/09 ENTERED AND COPIES E-MAILED.(stb, ) (Entered: 08/04/2009)
124 Joint PETITION for Award of Fees and Costs of Class Counsel by GEORGE BYRD, NAKISHA BOONE. Memorandum of Law, Certificate of Service. (Attachments: # 1 Exhibit Exhibits A-F)(LEVIN, DANIEL) Modified on 9/23/2009 (lisad, ). (Entered: 09/22/2009)

09/23/2009
09/23/2009 09/29/2009 09/30/2009 10/02/2009 10/08/2009
10/08/2009 11/03/2009 11/03/2009 11/03/2009

125 MOTION for Approval Plaintiffs' and Defendant's Motion for Final Approval of Settlement filed by GEORGE BYRD, NAKISHA BOONE, CITY OF PHILADELPHIA, KUWSH MUHAMMAD. Memorandum, Certificate of Service. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibits C & D)(LEVIN, DANIEL) Modified on 9/24/2009 (lisad, ). (Entered: 09/23/2009)
126 Praecipe to Attach Chart to Class Counsel's Joint Petition for Fees in Accordance with the Settlement Agreement by GEORGE BYRD, NAKISHA BOONE. Certificate of Service. (LEVIN, DANIEL) Modified on 9/24/2009 (lisad, ). (Entered: 09/23/2009)
127 Minute Entry for proceedings held before HONORABLE MARY A. MCLAUGHLIN: Hearing On Class Settlement held on 9/29/09. (rf, ) (Entered: 09/30/2009)
128 AFFIDAVIT in Support re 125 MOTION for Approval Plaintiffs' and Defendant's Motion for Final Approval of Settlement Supplemental Affirmation Regarding Litigation Expenses filed by GEORGE BYRD, NAKISHA BOONE. (KEACH, ELMER) (Entered: 09/30/2009)
129 AFFIDAVIT re 124 Application/Petition Declaration of Daniel C. Levin in Support of Joint Motion for Fees and Expenses by GEORGE BYRD, NAKISHA BOONE. (LEVIN, DANIEL) (Entered: 10/02/2009)
130 TRANSCRIPT of CLASS ACTION HEARING held on 9/29/09, before Judge MCLAUGHLIN. Court Reporter/Transcriber RAY WOLF. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 10/29/2009. Redacted Transcript Deadline set for 11/9/2009. Release of Transcript Restriction set for 1/6/2010. (rf, ) (Entered: 10/08/2009)
131 Notice of Filing of Official Transcript with Certificate of Service re 130 Transcript - PDF, 10/8/09 Entered and Copies Emailed and Mailed.. (rf, ) (Entered: 10/08/2009)
132 Praecipe to Attach Exhibit "A" to Plaintiffs' and Defendant's Proposed Order Granting Final Approval of Class Action Settlement and Judgment by GEORGE BYRD, NAKISHA BOONE. (LEVIN, DANIEL) (Entered: 11/03/2009)
133 MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 11/3/09. 11/4/09 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 11/04/2009)
134 MEMORANDUM AND ORDER THAT MOTION FOR FINAL APPROVAL OF THE PROPOSED SETTLEMENT IS GRANTED AS

OUTLINED HEREIN.. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 11/3/09. 11/4/09 ENTERED AND COPIES EMAILED.(rf, ) (Entered: 11/04/2009)

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1.28

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

NAKISHA BOONE and GEORGE BYRD, on behalf of themselves and a proposed class of others similarly situated,
Plaintiffs, v.
THE CITY OF PHILADELPHIA,

No.05-CV-1851

Defendant.

SETTLEMENT AGREEMENT Plaintiffs, by and through their counsel, and Defendant, by and through its counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for Settlement of the claims herein described against Defendant. WHEREAS, Plaintiffs filed the above-captioned class action lawsuit against the Defendants the City of Philadelphia, Philadelphia Prison System, Leon King II, Esquire, Charles J. Grant, Esquire, Paul Lancaster Adams, Lisette Shirdan-Harris, Esquire, Wesley Pinnock, Esquire, Elanor M. Kahanna, Reginald Hammond, Josh Murphy, and Robert Tomaszewski alleging that Defendants had violated Plaintiffs' constitutional rights under color of state law by illegally strip searching them in the absence of reasonable suspicion and others similarly situated upon entry into the Philadelphia Prison System after being charged with minor offenses. WHEREAS, the Defendants other than the City of Philadelphia subsequently were dismissed, by stipulation. WHEREAS, Plaintiffs further allege that, in violation of law and pursuant to the policy of the City of Philadelphia, all persons such as Plaintiffs and the members of the class they purport to represent, were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors, summmy offenses, violations of misdemeanor probation, traffic infractions, civil commitments, or other minor crimes, and were strip searched in the absence of reasonable
1

suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the City of Philadelphia.
WHEREAS, the City of Philadelphia, subsequent to the filing of this action, took substantial remedial steps to address the claims raised in this Litigation on or about October 9, 2007;
WHEREAS, the City of Philadelphia has denied and continues to deny Plaintiffs' claims, and Defendant denies any wrongdoing or liability of any kind to Plaintiffs or to any members of the Class (as defined hereinafter).
WHEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation ofthe facts and law relating to the matters in this Litigation and that such examination included docnmentary and deposition discovery in the course of the Litigation.
WHEREAS, the City of Philadelphia has concluded that Settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to alleged conduct involved in this Litigation.
WHEREAS, Plaintiffs and Class Counsel recognize the costs and risks of prosecuting this Litigation, and believe that it is in their interest, and the interest of all Class Members, to resolve this Litigation, and any and all claims against the City of Philadelphia, as well as all employees of the City of Philadelphia who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
WHEREAS, substantial, adversarial settlement negotiations have taken place between the Patties, including mediation conducted by United States Magistrate Judge Elizabeth T. Hey and former United States Magistrate Judge James K. Melinson, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein.
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WHEREAS, the Parties believe that this Settlement Agreement offers significant benefits to Class Members and is fair, reasonable, adequate and in the best interest of Class Members.
WHEREAS, this Settlement Agreement is made and entered into by and among the City of Philadelphia and Plaintiffs Nakisha Boone, and George Byrd individually and on behalf of a class (the "Class") of similarly situated persons (the "Class Members") defined as:
"All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions; civil commitments; or other minor crimes; or bench warrants andlor probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9,2007."
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
I. DEFINITIONS As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa. A. Claim Form. "Claim Form" shall mean a form in substantially the same form as that attached hereto as Exhibit A. B. Claims Period. "Claims Period" shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date until the date 120 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
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C. Class Counsel. "Class Counsel" shall mean: Levin, Fishbein, Sedran & Berman,

Philadelphia: The Mason Law Firm, LLP, Washington, DC: The Law Offices of Elmer Robert

Keach, III, PC, Amsterdam, New York; and Cuneo Gilbert & LaDuca, LLP, Washington, DC.

D. Class Notice. "Class Notice" shall mean the Court-approved form of notice in

substantially the same form as Exhibit B.

E. Class Representatives: "Class Representatives" shall mean Plaintiffs Nakisha

Boone and George Byrd.

F. Class Settlement. "Class Settlement" shall mean the ternlS provided in this

Settlement Agreement.

G. Court. "Court" shall mean the United States District Court for the Eastern

District of Pennsylvania, The Honorable Mary A. McLaughlin presiding, or her duly appointed

or designated successor.

H. Defendant. "Defendant" shall mean the City of Philadelphia and the Philadelphia

Prison System, and shall include all employees of the City of Philadelphia who may have

devised, promulgated or enforced the policy or participated in the conduct that is the subject of

this Settlement Agreement.

1.

Defendant's Counsel. "Defendant's Counsel" shall mean Craig M. Straw, Chief

Deputy City Solicitor, Civil Rights Unit, City of Philadelphia Law Department, Philadelphia,

PA.

J. Distribution Amount. "Distribution Amount" shall mean the amount available

from the Settlement Fund after payment of the costs of Class Notice and administration of the

Settlement, attorneys' fees and expenses, and incentive awards to Class Representatives.

K. Effective Date. "Effective Date" shall mean sixty days from the date on which

the Settlement has been finally approved by the Court, andlor the date on which any appeals

from final approval are resolved, whichever is later.

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M. Final Approval Hearing. "Final Approval Hearing" shall mean the hearing at which the Court will consider and finally decide whether to enter the Final Judgment.
N. Final Judgment. "Final Judgment" shall mean that Court order that finally certifies the Settlement Class, approves this Settlement Agreement, approves payment of attomeys' fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement, in substantially the same form as Exhibit C.
O. Litigation. "Litigation" shall mean the above-captioned lawsuit pending in the United States District COUli for the Eastem District of Pennsylvania as No. 05-CV-1851.
P. Mediator. The "Mediator" shall mean The Honorable James R. Melinson, former United States Magistrate Judge of the United States District COUli for the Eastem District of Pennsylvania.
Q. Notice Program. "Notice Program" shall mean the program for disseminating the
Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
R. Notice Date. "Notice Date" shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the telms herein.
S. Objection Date. "Objection Date" shall mean the date agreed upon by the Parties or otherwise ordered by the Court by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument.
T. Opt-Out Deadline. "Opt-Out Deadline" shall mean the date agreed upon by the Parties or otherwise ordered by the COUli by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the Settlement must complete the acts necessary to properly effect such election to opt out.
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U. Opt-Out List. "Opt-Out List" shall mean a written list prepared by the Settlement Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
V. Opt-Out Notice. "Opt-Out Notice" or "Opt-Out" shall mean a Request for Exclusion.
W. Parties. "Parties" shall mean the Plaintiffs and Defendant. X. Plaintiffs. "Plaintiffs" shall mean Nakisha Boone and George Byrd. y. Preliminary Approval Order. "Preliminary Approval Order" shall mean the Order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit D. Z. Release. "Release" shall mean the release described in Section VII herein. AA. Released Claims. "Released Claims" shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein. BB. Released Parties. "Released Parties" shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein. Cc. Request for Exclusion. "Request for Exclusion" shall mean any request by any Settlement Class Member for exclusion from the Settlement Class in compliance with Section V herein. DD. Settlement. "Settlement" shall mean the agreement by the Plaintiffs and Defendant to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement. EE. Settlement Administrator. "Settlement Administrator" shall mean the qualified party selected by the Parties and designated in the Preliminary Approval Order to administer the
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Settlement, including implementing the Notice Program. Neither Plaintiffs nor the Defendant
shall have any responsibility for any acts or omissions of the Settlement Administrator. The
Parties have agreed to select RSM McGladrey, Inc. as the Settlement Administrator.
FF. Settlement Agreement. "Settlement Agreement" shall mean this Settlement
Agreement, including any amendment hereto pursuant to Section X.D hereof, and all the exhibits
attached hereto.
GG. Settlement Class. "Settlement Class" shall mean:
All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions; civil commitments; or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summaIY offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.
HH. Settlement Subclasses. The Settlement Class shall include the following two
subclasses:
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (I) were charged with certain violence, dmg and/or weapons (hereinafter "VDW") related misdemeanor charges as defined and mutually agreed upon by the Parties at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Subclass II:
All persons in the Settlement Class who were (I) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
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II. Settlement Class Members. "Settlement Class Members" shall mean all persons in the Settlement Class who do not exclude themselves pursuant to Section V herein.
JJ. Settlement Fund. "Settlement Fund" shall mean a fund or funds, governed by terms to be agreed to between Class Counsel and Defendant's Counsel which shall be earmarked specifically for this case and remain in the City of Philadelphia Law Department's General Indemnities Fund until such time as to be utilized to administer the monetary requirements of the Settlement. Defendant shall provide documentation verifYing that the Settlement Amount is available, has been earmarked for the sole purpose of this case, and will not be utilized for any other payments or purposes. Defendant will not allow the General Indemnities Fund to ever have less money in it than enough to cover the entire cost of this Settlement.
KK. Settlement Amount. "Settlement Amount" shall mean the amount of Five Million Nine Hundred Thousand Dollars ($5,900,000.00) to be paid by or on behalf of the Defendant.
LL. Settlement Website. "Settlement Website" means a website established by the Website Administrator to provide information about the Settlement with a World Wide Web address ofwww.philadelphiastripsearch.com or, if unavailable, a mutually agreed upon address.
MM. Strip Search Policy. "Strip Search Policy" shall mean the written policy, to govern the conduct of all strip searches by Defendant, their agents, and employees upon a person's entry into the Philadelphia Prison System in place as of and after October 9, 2007.
NN. Summary Notice. "Summmy Notice" shall mean a notice in substantially the same fonn as that which appears at Exhibit E.
00. Website Administrator: "Website Administrator" shall mean the qualified party selected by the Pmties and designated in the Preliminary Approval Order to administer the Settlement Website. Neither Plaintiffs nor any other of the Defendant shall have any
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responsibility for any acts or omissions of the Website Administrator. The Parties have agreed to select RSM McGladrey, Inc. as the Website Administrator.
II. REQUIRED EVENTS Promptly after execution of this Settlement Agreement by all Parties: I. Class Counsel and Defendant's Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment in substantially the fonTIs attached hereto as Exhibits D and C, respectively. 2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminaty Approval Order in substantially the same fonn as Exhibit D, which by its terms shall:
a. Preliminarily approve the tenns of the Settlement Agreement, including the certification of the Settlement Class for purposes of this Settlement Agreement only, as within the range of fair, reasonable and adequate Settlement for purposes of issuing notice; b. Approve the contents of the Class Notice and methods in the Notice Plan; c. Schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment (in substantially the same fonn as Exhibit C) approving the Class Settlement, granting Class Counsel's application for fees and expenses, granting the incentive awards application by the Class Representatives, and dismissing the Litigation with prejudice. 3. Class Counsel and Defendant's Counsel will use their best effOlis, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment.
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4. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel and Defendant's Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; provided, however, that in no event shall Defendant be required to agree to any such cure that would increase the cost or burden ofthe Settlement Agreement to the Defendant.
5. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties' obligations under this paragraph shall be submitted for decision by Judge Mary A. McLaughlin or her designated representative and her decision shall be binding on the Parties.
III. SETTLEMENT TERMS A. Provision of New Policies and Corrections Officer Training
I. The Defendant affilmatively states that, effective October 9,2007, the City of Philadelphia stopped strip searching detainees admitted to the Philadelphia Prison System on a blanket basis, and also stopped strip searching misdemeanor detainees in the absence of reasonable suspicion. The City of Philadelphia acknowledges that its change in practice was due in part to the institution of this Litigation by Plaintiffs and proposed Class Counsel.
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2. The Defendant maintains that their current written policy is constitutional, and has been reviewed by the City of Philadelphia Law Department for compliance with state and federal law.
3. The Philadelphia Prison System Policies and Procedures Manual will include a copy of the Strip Search Policy.
4. All cOlTection officers have access to policies and are trained on search policy. Defendant will post the Strip Search Policy in the Intake Area of the Philadelphia Prison System.
5. Current and new cOITections officers who work in the PPS Admissions unit have been, and will continue to be, trained regarding the Strip Search Policy and when strip searches may and may not be performed.
6. Defendant will take reasonable steps to ensure that all corrections officers abide by the Strip Search Policy.
B. Settlement Fund 1. Upon entry of the Preliminary Approval Order, the City of Philadelphia
will make available an amount from the Settlement Fund, not to exceed the sum of $330,000, to be used by the Settlement Administrator to cover the costs of Notice and administration of the Settlement. Any unused portion of the $330,000 by the Settlement Administrator will reveli to the City of Philadelphia. If, at any time, whether by order of any court or because the Defendant is exercising any option to withdraw, the Settlement does not become final, then any unspent money remaining from this sum shall be returned to the City of Philadelphia with no obligation on the pmi of any pmiy to repay any portion of the money actually spent.
2. Within five (5) days of the Effective Date, the City of Philadelphia shall provide Plaintiffs with documentation verifying that $5,570,000 of the Settlement Amount is available, has been earmarked for the sole purpose of this case, and will not be utilized for any other payments or purposes.
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3. All administrative expenses, including the costs of Settlement administration, website administration and the provision of notice to class members, as well as the amounts awarded by the Court for attorneys' fees and costs, and incentive awards to the Class Representatives, will be deducted from the Settlement Fund prior to detelmining the "Distribution Amount."
C. Payments to Class Members 1. The Settlement Fund will be divided into two amounts of money to
compensate members of each subclass. 2. Subclass I will receive $5,170,000 of the Settlement Fund minus a
propOltionate share of attorneys' fees, expenses and administrative costs. Each Class Member within Subclass I who submits a timely Claim Form will be entitled to receive a pro rata share of that Settlement Fund except no Class Member within Subclass I shall receive in excess of $3,000. Any unused funds will be donated to the Philadelphia Bar Foundation and any other mutually agreed upon charitable organization.
3. If a Class Member is a member of both Subclass I and Subclass II, he or she will receive payment based on the Subclass status during his first admission to the Philadelphia Prison System during the class period.
4. Subclass II will receive $400,000, with a cap of$100.00 per claimant and any remaining portion of the $400,000 amount will revert to the City.
5. No Class Member shall be entitled to more than his or her individual share of the Settlement Fund regardless of the number of times he or she has been strip searched at the Philadelphia Prison System.
6. No portion of the Settlement Fund shall be disbursed before the Effective Date, except as set forth in Section III (B)(1) above and III (E) below.
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7. Both parties anticipate that late claims may be filed subsequent to the end of the claims period. Late claims may be allowed, if submitted on or before the date of the Final Approval Hearing, under the sole discretion of Class Counsel for good cause shown. All late claims will be approved by the COUIt prior to being paid as part of the distribution of the Settlement.
8. The Parties acknowledge that the Class list and list of claimants was compiled by Defendant, pursuant to the mutually-agreed upon definition of the Settlement Class and Subclasses I and II, and provided to Class Counsel. The City of Philadelphia will provide Class Counsel with a revised class list on or before the date of preliminary approval.
9. The City will exercise right of recovery of any unpaid municipal liens and/or taxes owed by any claimant to the City of Philadelphia, not including any unpaid fines from criminal cases. The City will be able to obtain up to and including fifty percent (50 %) of a class member's individual payment for the purpose of collecting these liens. The funds due to eligible claimants under the terms of the Settlement approved by the Court shall be withheld from them and paid to the City of Philadelphia. In order to expedite such collection, after the Settlement Administrator has determined which claimants are eligible to receive monetary relief under the Settlement, the Settlement Administrator shall provide to the Defendant a list of such eligible claimants, along with their mailing addresses, dates of birth and social security numbers, which will be used to determine which eligible claimants have unpaid municipal liens and/or taxes pending against them. This list will be provided to the City by the Settlement Administrator within twenty days before the Effective Date, and the City will provide the Settlement Adminstrator with a corresponding list of class members and payments to be withheld within 5 days before. In the event of a dispute by members of Settlement Class to the City as to unpaid municipal liens and/or taxes owed to the City, Class Members will have the right to apply to the COUIt for resolution of the dispute. The decision of the Court will be final in this regard.
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D. Attornevs Fees and Expenses Class Counsel will petition the Couti for an award of attorneys' fees in the amount not to exceed 30% of the entire Settlement Fund. Defendant shall not oppose Class Counsel's application for said award of fees and expenses, nor will they oppose any appeal filed by Class Counsel relative to their application for an award of attorneys' fees. E. Partial Distribution Pending Appeal In the event that Final Approval of the Settlement is appealed by either party or a third party objector, and if the payment of some portion of the Settlement Fund is not subject to dispute, that undisputed portion of the Settlement Fund shall be distributed in accordance with this agreement. In the event that Final Approval of the Settlement is overturned on appeal, all unpaid funds will remain with Defendant, as per the Settlement Fund, with the exception of the initial contribution, detailed in Section III(B)(l), and any additional notice and administration costs incurred above the Initial Contribution.
IV. NOTIFICATION TO CLASS MEMBERS A. Responsibilities ofthe Settlement and Website Administrator
1. The Settlement Administrator shall implement and administer the Notice Program.
2. The Settlement Administrator shall be responsible for, without limitation: (i) mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; (iv) otherwise administering the Notice Program and (v) distributing payments to the Settlement Class Members. The Notice Program shall comply with all requirements of applicable law. The Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of its fiduciary duty to the Couti, Class Members, Defendant or Class Counsel.
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3. The Website Administrator will maintain the Settlement Website, www.philadelphiastripsearch.com. or, if unavailable, a mutually agreed upon address by the Parties, which will provide information about the Settlement to Class Members, including notice and claims documents, court documents, and a copy of the Settlement Agreement.
B. Notice I. Notice will be provided to the Settlement Class by direct mailing of Class
Notice and a Claim Form to all individuals at their last known or readily ascertainable address and by publication. The published notice and mailed notice will be provided in English, and will provide instruction that a Spanish copy of either notice will be provided upon request.
2. Notice will also be provided to the Settlement Class by way of a limited televised notice campaign on television. The Defendant will have the 0ppOliunity to review the ads prior to their broadcast, and any dispute between the Parties regarding the content of the ads will also be decided by the Court. Additional, notice will be provided to the Settlement Class by way of posting of the Class Notice and Claim Form in the Philadelphia Prison System and in State COlTectional Institutes throughout the Commonwealth of Pennsylvania, if approved by the Depariment ofColTections. Claim Forms will be made available at these institutions.
3. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. The Website Administrator will also provide downloadable copies of notices, claim forms, court decisions and other information to Settlement Class members through a dedicated internet website, www.philadelphiastripsearch.com. or, if unavailable, a mutually agreed upon address.
4. Defendant will cooperate in the Notice Program by providing Class Counsel and/or the Settlement Administrator with information necessary to effect notice to the Settlement Class, including providing to Class Counsel and/or the Settlement Administrator a
15

database of Settlement Class Members in a computerized format. Under supervision of the Defendant, Class Counsel and/or the Settlement Administrator may review the raw data used to compile said database.
5. If, after the initial mailing, any Class Notices are returned as undeliverable, the Settlement Administrator will attempt to locate the relevant Settlement Class Members by way of a national locator database or service and, if another address is found, remail the Notice to that new address.
6. The Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendant's Counsel, attesting to the measures undertaken to provide Notice of the Settlement. The Website Administrator will also provide an Affidavit attesting to activity on the Settlement Website, including number of visitors and number of documents downloaded.
7. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other infOlmation about specific Settlement Class Members and/or specific Settlement Class Members that is provided to it by Defendant, Class Counsel, or by individual Settlement Class Members, shall be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
8. Class Counsel will employ an interpreter on a per diem basis to assist Settlement Class Members whose primary language is Spanish in filing claims under the Settlement. The costs of this interpreter will be paid as an administrative cost.
V. REQUESTS FOR EXCLUSION BY SETTLEMENT CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Settlement Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be
16

postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement, does not wish to be a Settlement Class Member and elects to be excluded from any judgment entered pursuant to the Settlement.
B. Any Settlement Class Member who submits a timely Request for Exclusion may not file an objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement.
C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class Counsel and to Defendant's Counsel together with copies of each Request for Exclusion. Class Counsel and Defendant' Counsel shall jointly report the names appearing on the Opt-Out List to the Court at the time of the Final Approval Hearing.
D. Class Counsel agrees that they will not represent any individuals who opt out from the Settlement in asserting claims against the Defendant that are the subject of this agreement.
VI. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Settlement Class, as well as a detailed statement of each objection asselted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support of the objection. B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration ofjustice and
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the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon one of the Class Counsel and Defendant's Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above, shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Comt.
C. In accordance with law, only Settlement Class Members who have objected to the Settlement pursuant to the terms immediately above may appeal any Final Judgment. The proposed Final Judgment shall provide that any Settlement Class Member who wishes to appeal the Final Judgment, which appeal will delay the distribution of the Settlement to the Class, shall post a bond with this Court in an amount to be determined by the Court as a condition of prosecuting such appeal.
VII. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT A. By this Settlement Agreement and specifically as provided in this Paragraph, Defendant, and all of its respective affiliates, predecessors, successors and assigns, officers, agents, representatives, insurers and employees are released from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Settlement Class against the Released Pmties, or any of them, based upon or related to the actions that are the subject of this Settlement Agreement.
18

B. This Settlement Agreement does not affect the rights, if any, of Settlement Class Members who timely and properly exclude themselves fi'om the Settlement.
C. The administration and consummation ofthe Settlement as embodied in this Settlement Agreement shall be under the authority of the COUli. The COUli shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release, The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to, orders enjoining Settlement Class Members from prosecuting claims that are released pursuant to the Settlement Agreement.
D. Upon the Effective Date: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Settlement Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set fmih herein; and (iii) Settlement Class Members and their successors, predecessors and assigns shall be pelmanently ban'ed from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state cOUli in the United States or any other tribunaL
E. Tolling of Statute of Limitations. Defendant agrees that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Settlement Class who has properly opted out of the Settlement, Defendant shall not assert any statute of limitations, repose, or laches defense unless such defense (i) existed as of April 21, 2005, the date this class action was filed or (ii) arose after a Request for Exclusion was effected pursuant to Section V, or a combination thereof. Further, in the event that the Court does not approve this Settlement Agreement, or an appellate cOUli reverses the COUli's order approving this Settlement Agreement, Defendant agrees that, with respect to any claims asserted in the Litigation that are subsequently asserted or maintained in any existing or subsequently filed class action lawsuit, or
19

by any member of the Class, Defendant shall not assert any statute of limitations, repose or laches defense that is premised upon the time period of April 21, 2005 through and including the date of the latter of either: the entry of the Court's order disapproving this Settlement Agreement or the appellate court's decision reversing the COUli's order approving this Settlement Agreement. This tolling will cease thiliy days after one of the events detailed in the preceding sentence comes to pass.
VIII. INCENTIVE AWARDS TO CLASS REPRESENTATIVES Given the effOlis of the named Plaintiffs on behalf of the Settlement Class, Defendant will not oppose an application for awards of $15,000 each on behalf of the Class Representatives Nakisha Boone and George Byrd. It is agreed between the Parties that the Class Representatives provided substantial assistance to Class Counsel in their prosecution of this action.
IX. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation. B. Defendant, through their undersigned attorneys, represent and warrant that they have the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Defendant of this Settlement Agreement and the consummation by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of Defendant. This Settlement Agreement has been duly and validly executed and delivered by Defendant and constitutes their legal, valid, and binding obligation.
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X. MISCELLANEOUS PROVISIONS A. This Settlement Agreement, and the exhibits and related documents hereto as well as any payment of moneys, or any other action taken, by the Defendant pursuant to any provision of this Settlement Agreement are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendant with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Defendant and each of them deny any liability to Plaintiffs and to all Members of the Settlement Class. This provision shall survive the expiration or voiding of the Settlement Agreement. B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Judgment is not entered, then this Settlement Agreement, including any Releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties' settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into. C. The headings ofthe sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction. D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties or their counsel.
21

E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision, or rnle that would cause the application of the laws of any other jurisdiction.
G. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear his or its own costs of the Litigation.
H. If any clause, provision or paragraph of this Settlement Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this Settlement Agreement shall be constrned and enforced as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had not been contained herein.
I. The Parties to this Settlement Agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement.
J. All applications for Court approval or Court orders required under this Settlement Agreement shall be made on notice to Plaintiffs and Defendant.
K. The determination of the terms of, and the drafting of, this Settlement Agreement, including its exhibits, has been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of all Parties and their counsel, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the Parties was represented by competent and effective counsel throughout the course of Settlement negotiations and in the drafting and
22

execution of this Settlement Agreement, and there was no disparity in bargaining power among the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any other Party or any other Party's connsel.
L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material and integral
parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitnte the entire,
fnlly integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the Settlement of the Litigation.
M. Notice: I. Any notice, request or instruction or other document to be given by any
party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:
If to Defendant to: Craig Straw, Chief Deputy City Solicitor, Civil Rights, City of Philadelphia, 1515 Arch Street, 14th Floor, Philadelphia, PA 19102.
If to Class Counselor Plaintiffs to: Daniel Levin, Esquire, Levin Fishbein Sedren & Berman, LLP, 510 Walnut Street, Philadelphia, PA 19106.
N. Dispute Resolution 1. The Parties agree that any disputes regarding the tenus and conditions of
this Settlement Agreement shall be submitted to the Court, who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, shall decide such dispute. The Court's decision shall be final and binding.
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IN WITNESS WHEREOF, Plaintiffs and Defendant and their respective counsel have executed this Settlement Agreement as of the date(s) indicated on the lines below.

/a Dated:';-) q y

Elmer Ro e' each, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 Telephone: (518) 434-1718 Fax: (518) 770-1558 Electronic Mail: bobkeach@keachlaw.com
Daniel C. Levin, Esquire Levin, Fishbein, Sedran & Bemlan 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Fax: (215) 592-4663 Electronic Mail: dlevin@lfsblaw.com
Jonathon W. Cuneo, Esquire Charles LaDuca, Esquire Alexandra C. Warren, Esquire CUNEO GILBERT & LADUCA 507 C Street, N.E Washington, D.C. 20002 Telephone: (202) 789-3960 Fax: (202) 789-1813
Gary E. Mason, Esquire Nicholas A. Migliaccio, Esquire THE MASON LAW FIRM, LLP 1225 19th St., N.W., St. 500 Washington, D.C. 20016 Telephone: (202) 429-2290 Fax: (202)429-2294
Christopher G. Hayes, Esquire The Law Office of Christopher G. Hayes 225 S. Church Street West Chester, PA 19382 Telephone: (610) 431-9505 Fax: (610) 431-1269

24

Dated:

Kevin T. Birley, Esquire 1601 Sansom Street, Suite 2C Philadelphia, PA 19103 Telephone: (215) 564-1197 ATTORNEYS FOR PLAINTIFFS
CITY OF PHILADELPHIA LAW DEPARTMENT
BY: Shelley R. Smith, City Solicitor
Craig Straw Chief Deputy City Solicitor, Civil Rights
1515 Arch Street, 14th Floor Philadelphia, PA 19102 Telephone: (215) 683-5442 ATTORNEYS FOR DEFENDANT

25

BOONE, ET AI. v. CITY OF PHILADELPHIA, CASE NO. 05-CV-1851
CLAIM FORM AND RELEASE
PLEASE READ THESE INSTRUCTIONS AND CLAIM FORM CAREFULLY
To determine if you are eligible to receive money from the Settlement, you must fill out the Claim Form and Release ("Claim Form"), The Claim Form is attached at the end of these instructions. The completed and signed Claim Form must be postmarked by [insert date]. Ifyou do not send it in by [insert date], you will not get any money. You must sign on the last page. You must submit it in the enclosed envelope or another properly addressed, postage prepaid envelope to the following address:
Settlement Administrator [insert address + 800 number)
If you have any questions about how the Settlement Fund will be divided up, you should write or call the Settlement Administrator at this number.
All Settlement Class Members who do not exclude themselves are bound by the telms of the judgment. This is true whether you send in a Claim FOlm or not.
If you have asked to be excluded, do not submit a Claim Form.
I. WHO IS IN THE SETTLEMENT CLASS?
You are in the "Settlement Class" if you meet the following conditions:
1. you entered the Philadelphia Prison System; AND 2. you were placed in the custody of the Philadelphia Prison System after
being charged with misdemeanors; summary offenses; traffic infractions; civil commitments or other minor crimes; or bench walTants or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; AND 3. you were strip searched upon entry to the Philadelphia Prison System without reasonable cause; AND 4. you were strip searched during the period of April 21, 2003 through October 9, 2007.
If you have questions about these requirements, review the Class Notice.
II. CLAIM FORM INSTRUCTIONS
A. Please type or neatly print all the information that is asked for.

B. If you believe you are entitled to money fi'om the Settlement Fund, you must complete Part 1 of the Claim Form and the additional patis of the Claim Fonn that apply to you.
C. By signing below you are verifYing, under penalty of peljury, that the information your have included is correct. You also agree to provide additional information to Class Counselor the Settlement Administrator to support your claim. They may ask you to do this in the future.
D. By signing below you are also verifying that you have not filed a claim or lawsuit about being strip searched at the Philadelphia Prison System, that you did not ask anyone else to file one for you, and that you don't know of anyone who might have filed one for you.
E. Please read the instructions carefully. Your claim will be checked and vel1fied by the Settlement Administrator. You should keep copies of all documents that support your claim while this is going on.
F. A Claim Form will be considered submitted to the Settlement Administrator if it is mailed in a first-class envelope postmarked by the due date. You may want to send in your Claim FOlID by Certified Mail, Return Receipt Requested. If you send the Claim Form to the Settlement Administrator in some way other than firstclass mail, the Claim Form will be considered "submitted" when it is received by the Settlement Administrator.
G. The Settlement Administrator will not tell you when they get your Claim Form. If you want to make sure the Settlement Administrator gets your form, you should send it by Certified Mail, Return Receipt Requested. It will take some time to process all the forms and send the checks. This work will be done as fast as possible, but each claim must be checked for accuracy and recorded.
H. Please write or call the Settlement Administrator if your address changes.
THE CLAIM FORM MUST BE FILLED OUT AND SIGNED IF YOU WANT TO DETERMINE IF YOU ARE ENTITLED TO GET MONEY FROM THE SETTLEMENT FUND. THE ENVELOPE MUST BE POSTMARKED NO LATER THAN [INSERT DATE] 2009, AND MUST BE MAILED TO:
[SETTLEMENT ADMIN / ADDRESS)
2

III. CLAIM FORM BOONE, ET AL. v. CITY OF PHILADELPHIA
PART 1: CLAIMANT IDENTIFICATION
Claimant's Name: Mailing Address:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ City: _ _ _ _ _ _ _ _ State/Country:_ _ _ _ _ _ Zip Code: _ _ __ Date of Birth: - - - - - - - Social Security No. _ _ _ _ _ _ _ _ _ __ PPN #, if known: _ _ _ _ _ __ Date of Arrest if known. Please say so if the date you give is an estimate. Please note that only persons who were admitted to the Philadelphia Prison System between April 21, 2003 through October 9, 2007, who were incarcerated in the Philadelphia Prison System are eligible. If you were atTested and admitted to the Philadelphia Prison System on multiple occasions during the Class Period, please identify your first arrest and admission during the Class Period, April 21, 2003 through October 9, 2007.
Actual Date Estimated Date Criminal charges or other reason for arrest, if known (check one):
SUBCLASS I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
SUBCLASS II: All persons in the Settlement Class who were (1)
3

charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants andlor probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies andlor VDW misdemeanor charges predating the date of their admission.
For purposes of the Settlement, a Serious Misdemeanor means misdemeanor crimes in the Pennsylvania Criminal Code that are: (1) weapons, (2) drug, or (3) violence-related. A Felony means the felony crimes in the Pennsylvania Criminal Code. A Violation/Bench Warrant with a Serious Misdemeanor Charge means admission was for a bench warrant andlor probation violation where the underlying case included at least one charge that matched one of the Serious Misdemeanor charges at the time of admission. A Violation/Bench Warrant with a Felony Charge means admission was for a bench warrant andlor probation violation where the underlying case included at least one charge with a Felony or Homicide status at the time of admission.
(ifyou do not know what the charges against you were, but believe you are still a Class Member, you shouldfile a claim. We will get your arrest recordft'om the County. You may still be asked to provide more information about your case.)
Please check this box to signifY that you were subjected to a strip search upon that admission to the Philadelphia Prison System.
Telephones:
_ _ _ _ _ _ _ _ _ _ (daytime)
_ _ _ _ _ _ _ _ _ _ (cell)
_ _ _ _ _ _ _ _ _ _ _ Cevening)
_ _ _ _ _ _ _ _ _ _ Cemail)
IV. SUBMISSION TO JURISDICTION OF THE COURT
By signing below, I agree that the United States District Court for the Eastern District of Pennsylvania has the power to rule on my claim as a Settlement Class Member, and that the COUli has the power to enforce the Release described below.
RELEASE
By signing below, you acknowledge the Release and discharge of the Defendant, and all of its respective parents, subsidiaries, affiliates, predecessors, successors and assigns, officers, agents, representatives, and employees, from any and all claims or causes
4

of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Settlement Class against the Released Parties, or any of them, based upon or related to strip searches in the Philadelphia Prison System.
5

VERIFICATION

I declare under penalty of perjUly under the laws of the United States that the foregoing infonnation provided by the undersigned is true and con·ecl. I also declare that I was strip searched when I was admitted into the Philadelphia Prison System.

I filled out and signed this Proof of Claim and Release fonn on _ _ _ _ _ _ _ __

2009, in

(City, State, Country).

(Sign your name here) (TypelPrint your name here)

6

Legal Notice United States District Court for the Eastern District of Pennsylvania
NOTICE OF PROPOSED SETTLEMENT AND HEARING
If You Were Admitted The Philadelphia Prison System From April 21,2003 To October 9,2007 And Were Strip Searched Upon Admission, Then Your Rights Could Be Affected By A Proposed Class Action Settlement.
The United States District Court for the Eastern District ofPennsylvania authorized this notice. It is not from a lawyer. You are not being sued.
o This is a proposed Settlement of a class action lawsuit alleging that corrections officers employed at the Philadelphia Prison System engaged in the illegal strip searches of all individuals charged with only minor offenses upon their enny into the Philadelphia Prison System from April 21, 2003 until October 9,2007. After the Litigation was filed, Defendant changed its strip search policy. The proposed Settlement does not include individuals who were convicted at the time of their admission to the Philadelphia Prison System, or who were not strip searched when they entered the Philadelphia Prison System.
o The Settlement would entitle each Class Member to a share of a $5.9 million Settlement Fund (after payment of administrative costs, an incentive award to the representative plaintiffs, and attorneys' fees).
o Visit the Settlement Website at [INSERT] for additional details about the Settlement. You may also get additional information by calling 1-800 [insert phone #] or by writing to [insert address].
o Your legal rights are affected whether you act or don't act. Read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

Submit a Claim FOl'm

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

Exclude Yourself

If you exclude yourself from the Settlement, you will not be bound by the Settlement or judgment and will not be entitled to a cash payment. You will be free to pursue your claims against the Defendant. This is the only option that allows you to bring or be part of any other lawsuit against the Defendant in this case about the same legal claims that are advanced in this case. You must exclude yourself from the Settlement by [Insert Date].

Object

If you do not exclude yourself, you may write to the Court about why you do not like the Settlement or the request for legal fees and costs. You must send a written objection to the Court postmarked no later than [Insert Date].

Go to a Hearing

You may ask to speak in Court about the fairness of the Settlement or the request for fees and costs.

Do Nothing

You get no payment. You give up your right to sue Defendants on these claims later.

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

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

I. WHY DID I GET THIS NOTICE PACKAGE?

You or someone in your family may have been admitted to the Philadelphia Prison System after being charged with misdemeanors, summmy offenses, traffic infractions, civil commitments, or other minor crimes, or bench warrants or probation violations where the underlying charge was a misdemeanor, summaIY offense or other minor crime, from April 21, 2003 to October 9, 2007 and been subject to a strip search.
You were sent this notice because you have the right to know about a proposed Settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the Settlement. If the Court approves it, and after any possible

2

objections and appeals are resolved, an administrator appointed by the Court will make the monetary payments that the Settlement allows. You will be informed of the progress of the Settlement. You should understand that the process of COUl1 approval may take a good deal of time.
This package explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them and how to get them.
The Court in charge of this case is the United States District Court for the Eastern District of Pennsylvania, United States District Judge Mary A. McLaughlin presiding. The case is called Boone, et al. v. City ofPhiladelphia, Case No. OS-CV-18SI. The persons who sued are called the Plaintiffs, and the municipality they sued, the City of Philadelphia, is called the Defendant.
II. WHAT IS THIS LAWSUIT ABOUT?
Plaintiffs claim in this lawsuit that the City of Philadelphia illegally strip searched individuals upon their admission to the Philadelphia Prison System who were charged with minor offenses, in violation of the unreasonable search provisions of the United States Constitution. Defendant denies that it did anything wrong, and contends that even if it did do anything wrong, Plaintiffs and the Class Members are not entitled to any money as a result of being searched.
III. WHY IS THIS A CLASS ACTION?
In a class action, one or more people, called the Class Representatives (in this case, Nakisha Boone and George Byrd), sue on behalf of all people who have similar claims. All of these people are a Class or Class Members. A class action resolves the issues for all Class Members, except for those who exclude themselves from the Class. United States District Judge Mary A. McLaughlin is in charge of this class action lawsuit.
IV. WHY IS THERE A SETTLEMENT?
The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides agreed to a Settlement. That way, they avoid the costs and risks of a trial, and the people affected will get compensation. The Class Representatives and their attorneys think the Settlement is best for evelyone who is alleged to have been illegally strip searched.
V. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
Everyone who fits the following description is a Settlement Class Member: you were placed in the custody of the Philadelphia Prison System after being charged with
3

misdemeanors; summary offenses; traffic infractions; civil commitments or other minor crimes; or bench warrants or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime, and you were strip searched in the absence of reasonable suspicion upon your entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadephia.
The Settlement Class includes the following two subclasses:
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants andlor probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Subclass II:
All persons in the Settlement Class who were (1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies andlor VDW misdemeanor charges predating the date of their admission.
The Class Period commences on April 21, 2003 and extends to October 9, 2007.
The Settlement does not cover individuals who entered the Philadelphia Prison System after being convicted of (as compared to only being charged with) a crime, or anyone who entered the Philadelphia Prison System but was not strip searched as part of the Philadelphia Prison System's booking procedure.
VI. DO I NEED TO PROVE THAT I WAS STRIP-SEARCHED, AND WHAT DOES THAT MEAN?
In filling out the Claim Form, you will affirm, under penalty of perjury, that you were strip searched during the admission process at the Philadelphia Prison System. If your name is not contained in Philadelphia Prison System's records, you may be asked to provide additional documentation before being allowed to participate in the Settlement.
A strip search occurred if, during the admission process, you were ordered to take off some or all of your clothes by a Philadelphia Prison System employee, with that employee watching you undress. Some members of the Class may also have been forced to bend at the waist or manipulate body patis to allow for a visual inspection. If you were
4

searched in this manner when you were booked into the facility and meet the other eligibility criteria, you are a member of the Class and entitled to make a claim. You will need to provide an affilmation on the Claim Form confirming that one of these searches was conducted on you when you entered the Philadelphia Prison System.
VIII. HOW DO I KNOW WHETHER THE CRIME FOR WHICH I WAS CHARGED UPON ADMISSION TO THE PHILADELPHIA PRISON SYSTEM QUALIFIES ME FOR INCLUSION IN THE CLASS?
You were placed in the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions; civil commitments or other minor crimes; or bench warrants or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime. Everyone brought to the Philadelphia Prison System pre-adjudication on such minor offenses and strip searched in the absence of reasonable suspicion upon admission during the Class Period is eligible under this Settlement Agreement.
For example, you are eligible under the Settlement Agreement if you were admitted to the Philadelphia Prison System subject to a civil commitment. A civil commitment is an order from a non-criminal cOUli, usually the Family COUli, committing that individual to the Philadelphia Prison System. Individuals admitted to the Philadelphia Prison System, on a civil commitment, for example, a conunitment for failure to pay child support, are members of the Class.
Similarly, if you were arrested and brought to the Philadelphia Prison System for traffic offenses or under traffic warrants, failing to pay fines and contempt, preadjudication, you are eligible under the Settlement Agreement. Consequently, if you failed to honor a payment order with a municipal court and were arrested, or failed to appear for a municipal court date and arrested, brought to the Philadelphia Prison System and strip searched, you are eligible to receive a settlement payment.
If you were charged with a Serious Misdemeanor, Violation/Bench Warrant with a Serious Misdemeanor Charge, or had a prior conviction for a felony or Serious Misdemeanor predating your admission, you will be a member of Subclass II. For purposes of the Settlement, a Serious Misdemeanor means misdemeanor crimes in the Pennsylvania Criminal Code that are: (I) weapons, (2) drug, or (3) violence-related. A Felony means the felony crimes in the Pennsylvania Criminal Code. A Violation/Bench Wan'ant with a Serious Misdemeanor Charge means admission was for a bench wan'ant and/or probation violation where the underlying case included at least one charge that matched one of the Serious Misdemeanor charges at the time of admission.
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IX. I WAS ADMITTED TO THE PHILADELPHIA PRISON SYSTEM BUT I CAN'T REMEMBER WHAT MY CRIMINAL CHARGES WERE. HOW CAN I FIND THIS OUT, AND HOW DO I KNOW IF THE CHARGE WAS A MISDEMEANOR OR VIOLATION?
There are several ways for potential class members to determine the nature of their criminal charges. First, you can review your charging documents, which should reflect your actual charges. If you do not have your charging document and remember the local court where you were prosecuted, the court clerk will be able to help you find these documents.
If you need additional help determining whether you are a class member, or of you have other questions, you can contact the Settlement Administrator at [insert number].
You can still make a claim if you do not remember your criminal charges if you believe you are a member of the Class, but you may be asked for additional information.
X. I PLED GUILTY TO A CRIME. HOW DOES THIS AFFECT MY RIGHT TO PARTICIPATE IN THE SETTLEMENT?
If you were admitted to the Philadelphia Prison System solely on non-felony or other minor charges, as defined above, you can participate in the Settlement regardless of how you resolved your criminal charges, including if you pled guilty to those charges. This is provided that you were admitted to the Philadelphia Prison System during the Class Period before being sentenced by a court. For most Class Members, this would mean that they were committed to the Philadelphia Prison System after they were arraigned before a Judge. If you were sentenced before admission to the Philadelphia Prison System (meaning you were committed after pleading guilty or being convicted at trial) you are not a Class Member.
XI. WHAT IF I WAS ADMITTED TO THE PHILADELPHIA PRISON SYSTEM ON MORE THAN ONE OCCASION DURING THE CLASS PERIOD? CAN I STILL PARTICIPATE IN THE SETTLEMENT?
Yes. Individuals who were admitted to the Philadelphia Prison System on more than one occasion during the class period can be members of the class and can recover money. They can only recover one payment, however, meaning that you will not be provided with extra payments if you were admitted to the Philadelphia Prison System more than one time. Your subclass will be detelmined based on your first admission to the Philadelphia Prison System during the Class Period.
6

XII. I AM STILL NOT SURE IF I AM INCLUDED.
If you are still not sure if you are included, you can ask for help. You can call [insert number] and the Settlement Administrator or Class Counsel may help answer your questions. For more information, you can also visit the website, [INSERT], or you can just fill out the Claim Form and return it to the Settlement Administrator to see if you qualify.
THE SETTLEMENT BENEFITS - WHAT YOU GET
XIII. WHAT DOES THE SETTLEMENT PROVIDE?
Defendant has agreed to pay $5,900,000 (Five Million Nine Hundred Thousand Dollars) to resolve this Litigation. The money will be used to: 1) compensate Class Members who have been illegally strip searched; 2) pay $330,000 for notifying Class Members and administering the Settlement; 3) pay incentive awards of$15,000 each to the named Plaintiffs Nakisha Boone and George Byrd; and 4) pay attorneys' fees and expenses.
A complete description of the Settlement is provided in the Settlement Agreement. You can get a copy of the Settlement Agreement by visiting [enter website address] or by calling [enter administrator phone number].
XIV. WHAT CAN I GET FROM THE SETTLEMENT?
The benefits that you will receive from the Settlement depend on whether you are a member of Subclass I or Subclass II:
Members of Subclass I will receive an equal pro-rata share of $5, 170,000, minus an incentive award for the Class Representatives, attorneys' fees, and expenses. Class Counsel anticipates, based on claims rates from other settlements, that all individuals who are members of Subclass I that make a claim on the Settlement will receive between $600 and $900 as a settlement payment. These amounts are dependent on how many claims are received by the Claims Administrator during the claims period, and are subj ect to change based on the number of claims received. Payments to members of Subclass I shall not exceed $3,000. No amount is guaranteed.
Members of Subclass II will receive an equal pro-rata share of $400,000 minus an incentive award for the Class Representatives, attorneys' fees, and expenses. Class Counsel anticipates, based on claims rates from other settlements, that all individuals who are members of Subclass II that make a claim on the Settlement will receive between $50 and $100 as a settlement payment. These amounts are dependent on how many claims
7

are received by the Claims Administrator during the claims period, and are subject to change based on the number of claims received. Payments to members of Subclass II shall not exceed $100 per claimant. No amount is guaranteed.
HOW YOU GET A PAYMENT - SUBMITTING A CLAIM FORM
XV. HOW CAN I GET A PAYMENT?
To qualifY for a payment, you MUST send in a Claim Form. A Claim Form is attached to this Notice. You can also get a claim form on the Internet at [INSERT]. Read the instructions carefully, fill out the fonn, sign it, and mail it postmarked no later than [insert date].
You may be asked for additional documents, and will be contacted in writing. You may want to send in your claim form by Celiified Mail, Return Receipt Requested, to ensure that it is received by the Settlement Administrator.
XVI. WHEN WOULD I GET MY PAYMENT?
The Court will hold a hearing on [insert date] to decide whether to approve the Settlement. If Judge McLaughlin approves the Settlement, there may be appeals. It is always uncertain whether those appeals can be resolved, and resolving them can take time, perhaps more than a year. Everyone who sends in a Claim Form will be informed of the progress of the Settlement. Please be patient.
XVII. WHAT AM I GIVING UP TO GET A PAYMENT OR STAY IN THE CLASS?
Unless you exclude yourself, you are staying in the Class, and that means yon can't sue, continue to sue, or be pati of any other lawsuit against the City of Philadelphia, its employees, or its elected officials about the legal issues in this case. It also means that all the Court's orders will apply to you and legally bind you. If you sign the Claim FOlID, you will agree to release all claims that you have relating to having been strip searched.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you do not want a payment from this Settlement, but you want to keep the right to sue or continue to sue the City of Philadelphia on your own about the legal issues in this case, then you must take steps to preserve these rights. This is called excluding yourself - or is sometimes refelTed to as "opting out" of the Settlement Class.
8

XVIII. HOW DO I GET OUT OF THE SETTLEMENT?
To exclude yourselffrom the Settlement, you must send a letter by mail saying that you want to be excluded from Boone, et al. v. City ofPhiladelphia. Be sure to include your name, address, telephone number and your signature. You must mail your exclusion request postmarked no later than [insert date] to [insert address].
You can't exclude yourself on the phone or by email. If you ask to be excluded, you will not get any settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) the City of Philadelphia in the future.
XIX. IF I DO NOT EXCLUDE MYSELF, CAN I SUE THE CITY OF PHILADELPHIA FOR THE SAME THING LATER?
No. Unless you exclude yourself, you give up the right to sue the City of Philadelphia for the claims that this Settlement involves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this class action to continue your own lawsuit. Remember, the exclusion deadline is [insert date].
XX. IF I EXCLUDE MYSELF, CAN I GET MONEY FROM THE SETTLEMENT?
No. If you exclude yourself, do not send in a Claim Form to ask for money. But, you may sue, continue to sue, or be part of a different lawsuit against the City of Philadelphia.
THE LAWYERS AND INDIVIDUALS REPRESENTING YOU
XXI. DO I HAVE A LAWYER IN THIS CASE?
The Court approved Levin, Fishbein, Sedran & Berman, Philadelphia, Pennsylvania, The Mason Law Firm, LLP, Washington, DC, The Law Offices of Elmer Robert Keach, III, PC, Amsterdam, New York, and Cuneo Gilbert & LaDuca, LLP, Washington, DC to represent you and other Class Members. Together, the lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
9

XXII. HOW WILL THE LAWYERS AND THE CLASS REPRESENTATIVES BE PAID?
Class Counsel will ask the Court for attorneys' fees and expenses as a percentage ofthe $S,900,000 (Five Million Nine Hundred Thousand Dollars) settlement, and a payment of$IS,OOO (Fifteen Thousand Dollars) each for Class Representatives Nakisha Boone and George Byrd. The Settlement Agreement provides that thirty percent of the Settlement Fund will be paid to Class Counsel as an award of attorneys' fees, together with an award for the reimbursement of expenses. These amounts will be deducted from the Settlement Fund before payments are made to Class Members. The costs of administering the Settlement, which are estimated at $330,000, will also be deducted from the Settlement Fund.
OBJECTING TO THE SETTLEMENT
You can tell the Court that you do not agree with the Settlement or some part of it.
XXIII. HOW DO I TELL THE COURT THAT I DO NOT LIKE THE SETTLEMENT?
If you are a Class Member, you can object to the Settlement if you don't like any part of it. You can give objections why you think the COUli should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to Boone, et al. v. City ofPhiladelphia, case no. OS-cv-18S1. Be sure to include your name, address, telephone number, your signature, and the reasons why you object to this Settlement and the case number (OS-cv-18SI). Mail the objection to these three different places postmarked no later than [insert date).
COURT U.S. District Court for the Eastern District of Pennsylvania Office of the Clerk of Court James A. Byrne Federal Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106-1797
CLASS COUNSEL Daniel C. Levin, Esquire Levin, Fishbein, Sedran & Berman S10 Walnut Street, Ste. SOO Philadelphia, PA 19106
10

DEFENSE COUNSEL Craig Straw, Chief Deputy, City Solicitor Civil Rights City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102
XXIV. WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING MYSELF?
Objecting is simply telling the Comt that you do not like something about the Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be a part of the Class. If you exclude yourself, you have no basis to object because the case no longer legally affects you.
THE COURT'S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to do so.
XXV. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? On [insert date] the U.S. District Court for the Eastern District of Pennsylvania
will hold a fairness hearing in the James A. Byrne Federal Comthouse, 601 Market Street, Philadelphia, PA 19106, in Courtroom [insert courtroom] to determine whether the Class was properly certified and whether the proposed Settlement is fair, adequate, and reasonable. The Court will listen to people who have asked to speak at the hearing. The Comt may also decide how much to pay Class Counsel. This hearing may be continued or rescheduled by the Court without further notice. We do not know how long it will take the Court to give its decision.
XXVI. DO I HAVE TO COME TO THE HEARING?
No. Class Counsel will answer questions Judge McLaughlin may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Comt will consider it. You may also pay your own lawyer to attend, but it is not required.
XXVII. MAY I SPEAK AT THE HEARING?
You may ask the Court for permission to speak at the Fairness Hearing. To do so,
11

you must send a letter saying that it is your "Notice ofIntention to Appear in Boone, et al. v. City a/Philadelphia, case no. 05-cv-185l." Be sure to include your name, address, telephone number and your signature and the case number (05-cv-1851). Your Notice of Intention to Appear must be postmarked no later than [insert date) and be sent to the Clerk ofthe Court, Class Counsel, and Defense Counsel, at the three addresses in question XXIII. You cannot speak at this hearing if you excluded yourself.
IF YOU DO NOTHING
XXVIII. WHAT HAPPENS IF I DO NOTHING AT ALL?
If you do nothing, you will get no money from the Settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the City of Philadelphia about the legal issues in this case, ever again. Unless you exclude yourself, you need to file a claim to receive a monetary payment under the Settlement.
GETTING MORE INFORMATION
XXIX. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT?
This Notice summarizes the proposed Settlement. More details are in a Settlement Agreement. You can get a copy of the Settlement Agreement by writing to the Settlement Administrator at [insert address) or by visiting [insert web address].
XXX. HOW DO I GET MORE INFORMATION?
You can call [insert number), write to the Settlement Administrator at [insert address), or visit the website at www.philadelphiastripsearch.com. where you will find answers to common questions about the Settlement, a Claim FOIID, plus other information to help you determine whether you are a Class Member and whether you are eligible for payment.
12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

NAKISHA BOONE, et aI., Plaintiffs,
- vs CITY OF PHILADELPHIA,
Defendant.

Civil Action No. 05-CV-1851

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT THIS CASE coming on for hearing before the Honorable Mary A. McLaughlin, U.S.D.J. on _______,2009, pursuant to this Court's Order of _ _ _ _ _ 1ll order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the Parties is fair, reasonable and adequate, and to address Class Counsel's application for an award of attorney's fees and costs; and the Settlement Class Members being represented by Class Counsel and Defendant being represented by their attorney; AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendant, and having considered the submissions by Class Members, now makes the following:
FINDINGS OF FACT 1. This action was commenced on April 21, 2005, as a class action. 2. After several years of intensive litigation, including extensive discovery and

motion practice, and as a result of intensive, arm's length negotiations between Class Counsel and Defendant, including settlement conferences before Magistrate Judge Elizabeth T. Hey and former Magistrate Judge James K. Melinson, the Parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendant ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the Court on _________ 3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed Settlement. The Notice Plan provided an opportunity for Class Members to file objections to the Settlement, and an opportunity to opt-out of the Settlement. 4. As of the deadline for the filing of objections, _ _ _ objections were filed. Given the size ofthis Settlement, and the Notice Plan described above, this Court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendant. 5. The settling Parties have filed with the Court an affidavit from RSM McGladrey, Inc. declaring that the mailing of the Court-approved notice, consistent with the Notice Plan, has been completed. 6. The Court finds that the published notice, mailed notice and Internet posting constitute the best practicable notice of the Fairness Hearing, proposed Settlement, Class Counsel's application for fees and expenses, and other matters set fOlih in the Class Notice and Short Form Notice; and that such notice constituted valid, due and sufficient
2

notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of Pennsylvania and any other applicable law. 7. Any persons who wished to be excluded from this action were provided an opportunity to "opt-out" pursuant to the Notice. All persons who have validly excluded themselves from the action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein and the names of those persons are set forth in Exhibit A hereto. 8. Settlement Class Members are bound by the: Settlement, Settlement Agreement, Release contained within the Settlement Agreement, and the Final Order and Judgment. Settlement Class Members do not have a further opportunity to opt-out of this Action. 9. Any Class Member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise. 10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
3

a. The liability issues in this case have been vigorously contested. b. This Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the Patiies to this litigation. This Settlement provides Class Members with a substantial monetary benefit.
c. This Settlement is clearly a product of hard-fought litigation between the Parties, and not a result of any collusion on the part of Class Counselor Counsel for the Defendant. II. Class Counsel submitted to the Court and served on the Defendant their application for reasonable attorneys' fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel's request and hereby grants the request. 12. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW: 13. This Court has jurisdiction over the Patiies and the subject matter of this proceeding. 14. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Settlement Class is certified for purposes of final settlement:
Settlement Class: All persons who were placed into the custody of the Philadelphia Prison System after being charged with
4

misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, dmg and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
Subclass II:
All persons in the Settlement Class who were (1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
15. The Court finds that, for the purpose of this Settlement, the requirements of Rule
23 of the Federal Rules of Civil Procedure are satisfied, and that a class action is an
appropriate method for resolving the disputes in this litigation. All the prerequisites for
class certification under Rule 23 are present. The Class Members are ascertainable and
too numerous to be joined. Questions of law and fact common to all Class Members
predominate over individual issues and should be determined in one proceeding with
respect to all Class members. The Class Representatives claims are typical of those of
the Class. The Class action mechanism is superior to alternative means for adjudicating
5

and resolving this action. 16. The Settlement Class Representatives, Nakisha Boone and George Byrd, are entitled to and are hereby awarded a payment of $15,000 each, in recognition of the efforts they undertook in connection with this lawsuit. All Class Members who have made claims on the settlement are entitled to receive their pro rata share of the Settlement fund, as members of Subclass I not to exceed $3,000 or Subclass II not to exceed $100, after administrative expenses, attorneys' fees and expenses, and incentive awards are deducted from the fund. 17. Any unused monies will be donated to the Philadelphia Bar Foundation and
18. Class Counsel are qualified, experienced, and have aggressively litigated this case, thereby demonstrating their adequacy as counsel for the Settlement Class. Daniel C. Levin, Esquire of Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Charles J. LaDuca, Esquire and Alexandra Wanen, Esquire of Cuneo Gilbert & LaDuca, LLP, Washington, DC; Elmer Robert Keach, III, Esquire ofthe Law Offices of Elmer Robert Keach, III, Amsterdam, New York; and Gary E. Mason, Esquire and Nicholas A. Migliaccio, Esquire of the Mason Law Firm, LLP are hereby appointed as counsel for the Settlement Class. 19. The COUli grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 20. The Courts finds that the request for attorneys' fees is reasonable.
6

NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS

OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED AS FOLLOWS:

1. The Motion for Final Approval of the Proposed Settlement is GRANTED.

2. The Settlement Class Representatives, Nakisha Boone and George Byrd, are

entitled to and are hereby awarded a payment of $15,000 each in recognition of the

efforts they undertook in connection with this lawsuit. All Class Members who have

made claims on the Settlement are entitled to receive their pro rata share of the

Settlement Fund, as members of Subclass I (not to exceed $3,000) or Subclass II (not to

exceed $100), after administrative expenses, attorneys' fees and expenses, and incentive

awards are deducted from the fund.

3. The Class Counsel's application for attorneys' fees and expenses is granted.

4. This Action and all claims against the settling Defendant are hereby dismissed

with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the

Action, all Parties, and Settlement Class Members, to interpret and enforce the terms,

conditions and obligations of this Settlement Agreement.

5. All Class Members who have not timely filed an opt-out request are barred and

enjoined from commencing and/or prosecuting any claim or action against the

Defendant. Any Class Member who has not timely filed a request to exclude themselves

shall be enjoined from initiating and/or proceeding as a class action in any forum.

IT IS SO ORDERED.

Dated: - - - - -

The Honorable Mary A. McLaughlin United States District Judge

7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

NAKlSHA BOONE, et aI., Plaintiffs,
- vs CITY OF PHILADELPHIA,
Defendant.

Civil Action No. OS-CV-18Sl

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

IT IS HEREBY ORDERED AS FOLLOWS:
1. Capitalized tenns used in this Order have the meanings assigned to them in the
Settlement Agreement and this Order.
2. The tenns of the Parties' Settlement Agreement are hereby conditionally
approved, subject to further consideration thereof at the Final Approval Hearing provided
for below. The Court finds that said Settlement is sufficiently within the range of
reasonableness and that notice of the proposed Settlement should be given as provided in
this Order.
3. Pursuant to Fed. R. Civ. P. 23 the Court conditionally certifies the following
Settlement Class and subclasses:
Settlement Class:
All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench wan-ants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9,2007.
Subclass I:
All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, dmg and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged with bench wanants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.
2

Subclass II: All persons in the Settlement Class who were (1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench walTants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. 4. The Court further conditionally finds that Plaintiffs Nakisha Boone and George Byrd are adequate Class Representatives for the Settlement Class. 5. The Court further finds that Plaintiffs' Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Section IV of the Settlement Agreement. 7. If the Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendant shall have reserved all its rights to oppose any and all class certification motions, to contest the adequacy of Plaintiffs as representative of any putative class, and to contest the adequacy of Class Counsel as adequate Class Counsel. Additionally, Plaintiffs reserve all of their rights, including the right to continue with the litigation pending at the time of the Settlement should the Settlement Agreement not be consummated. Notice to Settlement Class and Appointment o(Settlement Administrator 8. Counsel for the Class ("Class Counsel") are as follows: Daniel C. Levin, Esquire LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106
3

Charles LaDuca, Esquire Alexandra Warren, Esquire CUNEO GILBERT & LADUCA, LLP 507 C Street NE Washington, DC 20002
Elmer R. Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
Gary E. Mason, Esquire Nicholas A. Migliaccio, Esquire THE MASON LAW FIRM, LLP 1225 19th St, NW, Suite 500 Washington, DC 20036
Christopher G. Hayes, Esquire The Law Office of Christopher G. Hayes 225 South Church Street West Chester, PA 19382
Kevin T. Birley, Esquire 1601 Sansom Street, Suite 2C Philadelphia, PA 19103
9. Beginning no later than sixty (60) days from the date of this Order Preliminarily
Approving Settlement, Class Counsel shall cause to be disseminated the notices,
substantially in the form attached as Exhibits A and B hereto, in the manner set forth in
Section IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class Members will
have forty-five (45) days from the Notice Date to opt out or to object, and one-hundred
twenty (120) days from the Notice Date to file claims. Prior to the Final Approval
Hearing, Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement
attesting to compliance with the provisions of this paragraph.
10. The Class Notice to be provided as set forth in the Settlement Agreement as filed
4

with the Court is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed Settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Fed. R. Civ. P. 23, due process, the Constitution of the United States, the laws of Pennsylvania and all other applicable laws. The Notices are accurate, objective, inforn1ative and provide Class members with all of the information necessary to make an infoffi1ed decision regarding their participation in the Settlement and its fairness. 11. Class Counsel are authorized to retain RSM McGladrey, Inc. in accordance with the terms of the Settlement Agreement and this Order. Requests fOr Exclusion (rom the Settlement Class 12. Any member of the Settlement Class that wishes to be excluded ("opt out") from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member ofthe Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the telms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund
5

pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on the Settlement is hereby scheduled to be held before this Court on no later than one hundred fifty (150) days from the Notice Date, to consider the faimess, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are Defendant herein, and the entry of final judgment in this class action. Class Counsel's application for award of attomey's fees and costs shall be heard at the time of the hearing. 15. The date and time of the hearing shall be set forth in the Notice, but the hearing shall be subject to adjoumment by the Court without further notice to the members ofthe Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the Settlement Class of any scheduling issues by way of the Settlement Website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attomey. Settlement Class members who do not enter an appearance through their own attomeys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the Settlement, and Class Counsel's application for fees and expenses by serving a written objection. 18. Any Class Member making the objection (an "objector") must sign the objection
6

personally. An objection must state why the objector objects to the proposed Settlement
and provide the basis to support such position. If an objector intends to appear personally
at the hearing, the objector must include with the objection a notice of the objector's
intent to appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed no later than
f0l1y-five (45) days from the Notice Date. If counsel is appearing on behalf of more than
one Class Member, counsel must identifY each such Class Member and each Class
Member must have complied with the requirements of this Order. These documents must
be filed with the Clerk of the Court at the following address:
U.S. District Court for the Eastern District of Pennsylvania Office of the Clerk of Court James A. Byrne Federal Courthouse 601 Market Street, Room 2609 Philadelphia, PAl 91 06-1797
20. Objections, along with any notices of intent to appear, must also be mailed to
Class Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL:
Daniel C. Levin, Esquire Levin, Fishbein, Sedran & Berman 5 I0 Walnut Street, Ste. 500 Philadelphia, PA 19106
DEFENSE COUNSEL:
Craig Straw, Chief Deputy City Solicitor, Civil Rights City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102
2 I. Only Class Members who have filed and served valid and timely notices of
objection shall be entitled to be heard at the Final Approval Hearing. Any Class Member
7

who does not timely file and serve an objection in writing to the Settlement, enlly of Final Judgment, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise. 22. Persons wishing to be heard at the hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the hearing. Settlement Class Members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the Defendant for the claims made in the Complaint. Other Provisions 24. Upon approval of the Settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Dated: _ _ _ _ _ _ __
The Honorable Mary A. McLaughlin United States District Judge
8

COURT ORDERED LEGAL NOTICE
If you were admitted into the Philadelphia Prison System between April 21, 2003 and October 9, 2007 and were strip searched upon admission, you could get a payment from a class action settlement.

A $5.9 million settlement has been proposed in a class action lawsuit about the strip search policies of the Philadelphia Prison System. If you meet the criteria explained below, you can share in this Settlement.
The United States District Court for the Eastern District of Pennsylvania authorized this notice. The Court will have a hearing to decide whether to approve the Settlement, so that the benefits may be paid.

Who's Included?

You are a Class Member and could get benefits if:
I. you entered the Philadelphia Prison System; AND 2. you were placed in the custody of the Philadelphia Prison System after being
charged with misdemeanors; summary offenses; traffic infractions; civil commitments or other minor crimes; or bench warrants or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; AND 3. you were strip searched upon entry to the Philadelphia Prison System without reasonable cause; AND 4. you were strip searched during the period of April 21, 2003 through October 9, 2007.

What's This About?

The lawsuit claims that the Defendant City of Philadelphia unlawfully strip searched

evelyone admitted into the Philadelphia Prison System on only minor charges. The City of

Philadelphia has denied those claims. The Court did not decide which side was right, but both

sides agreed to the Settlement to ensure a resolution and to provide benefits to the people who

were affected.

-.

What Does the Settlement Provide?

Defendant agreed to pay a total of $5,900,000.00 to settle the case. That will pay for the claims of the Class Representatives, the administrative costs of the Settlement, an incentive

award to the Class Representatives, and the attomeys' fees and expenses. There are believed to be approximately 37,000 Class Members. You can only make one claim, even if you were strip searched more than once. Each Class Member who makes a claim will receive an equal share of the pOltion of the Settlement Fund allocated to pay the claims of members of Subclass I or Subclass II, depending on which subclass you are a member of. Class Counsel anticipates, based on claims rates from other settlements, that all individuals who are members of Subclass I that make a claim on the Settlement will receive between $600 and $900, as a settlement payment, and that all individuals who are members of Subclass II that make a claim on the Settlement will receive between $50 and $100 as a settlement payment. These amounts are dependent on how many claims are received by the Claims Administrator during the claims period, and are subject to change based the number of claims received. No amount is guaranteed.
How Do You Ask For A Payment?
A detailed Notice and Claim Form package contains everything you need. Just call 1800-XXX-XXXX or visit the settlement website, XXXXXXX, to get one. To qualifY for a payment, you must send in a Claim Form. Claim forms are due by [insert date], 2009.
What Are Your Other Options?
If you want to share in the Settlement, all you need to do is obtain a Claim Form, as just explained, and retum it according to its directions. If you don't want the Settlement benefits or don't want to be legally bound by the Settlement, you must exclude yourself by [insert date] 2009. If you exclude yourself, you can't get any benefits from this Settlement, but you could bring a separate case against the Defendant, if you want to. If you stay in the Settlement, you may object to it by [insert date] 2009. The detailed notice, available by calling or visiting the website below, explains how to exclude yourself or object.
The court will hold a hearing in this case (Boone, et al. v. City ofPhiladelphia, Case No. 05-CV-1851) on [insert date], to consider whether to approve the Settlement and a request by the lawyers representing all Class Members (Levin, Fishbein, Sedran & Berman, Philadelphia, Pennsylvania, The Mason Law Firm, LLP, Washington, DC, The Law Offices of Elmer Robelt Keach, III, PC, Amsterdam, New York, and Cuneo Gilbert & LaDuca, LLP, Washington, DC; Christopher Hayes, The Law Office of Christopher G.Hayes, West Chester, PA; Kevin Birley, Philadelphia, PA) for attomeys' fees and costs. You may ask to appear at the hearing, but you don't have to. For more infOlmation, call toll free 1-800-000-0000, visit the Settlement Website [INSERT], or write to Settlement, P.O Box X, City, State, 00000.
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