•

• FILED

IN THE UNITED STATES DISTRICT COURT

SEP 0 8 2008

FOR THE WESTERN DISTRICT OF TEXAS CLERK, U.S

WACO DIVISION

WESTERN 0

BY ____~~~~~~

WILLIAM ROBERT BRADSHAW, on behalf of himself and the class of similarly situated persons;
Plaintiffs,
v.
MCLENNAN COUNTY; MCLENNAN COUNTY SHERIFF'S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, in his individual and official capacity; MCLENNAN COUNTY SHERIFF DEPUTIES DOES 1 THROUGH 50, AND ROES 1 THROUGH 20, INCLUSIVE,
Defendants.

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~ CASE NO: W08 CA 246
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JURY TRIAL REOUESTED

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CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS
AND FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION This is an action for declaratory and injunctive relief, damages, and punitive damages against MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, Individually and in His Official Capacity, MCLENNAN COUNTY SHERIFF DEPUTIES sued under their fictitious names as DOES 1 THROUGH 50, and ROES 1 THROUGH 20, for violations ofplaintiffs constitutional rights resulting from application of MCLENNAN COUNTY'S and the MCLENNAN COUNTY SHERIFF'S OFFICE'S policies, practices, and customs concerning the use of strip searches and visual body cavity searches in MCLENNAN COUNTY Jails. Plaintiff, for himself and all those in the class

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of similarly situated persons, seeks an order declaring illegal defendants' policy of subjecting detainees in their custody to strip and visual body cavity searches before they are arraigned and without having any reasonable suspicion that the searches will be productive of contraband.
Defendants' strip search and visual body cavity search policies, practices, and customs violate those rights of plaintiff, and all those he represents, that are secured by the Fourth and Fourteenth Amendments to the United States Constitution and entitle plaintiff, and all those similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).
Plaintiff alleges against Defendants upon knowledge as to himself and all matters of public record, and upon information and belief as to all other matters, as follows:
I. JURISDICTION AND VENUE 1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
II. PARTIES 3. Plaintiff WILLIAM ROBERT BRADSHAW, and all those similarly situated, are, and at all material times herein, were residents of the state of Texas who were arrested within the period beginning two (2) years before the filing of this Complaint, and continuing to this date, and who were subjected to strip and/or visual body cavity searches at a MCLENNAN COUNTY Jail, prior to being arraigned and/or without the defendants first having, and recording in writing,
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a reasonable suspicion that the searches would be productive of contraband or weapons. 4. Defendant MCLENNAN COUNTY is, and at all material times referred to herein,
was a division of the state of Texas, that maintained or permitted an official policy or custom or practice causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged Plaintiff and all those similarly situated, as herein alleged. Plaintiffs allegations against MCLENNAN COUNTY are based on acts and omissions of the SHERIFF and his DEPUTIES and on acts and omissions of those who are COUNTY employees, and on the COUNTY's breach of duty to protect the Plaintiff and all those who he represents, from the wrongful conduct of said persons and employees.
5. Defendant MCLENNAN COUNTY SHERIFFS OFFICE was a governmental entity and local public body as those terms are defined in the Texas Civil Practice & Remedies Code, Title 5, Chapter 101(A). At all times material hereto, MCLENNAN COUNTY was the employer andlor supervisor of the individually named defendants. MCLENNAN COUNTY had a statutory obligation to provide for the confinement of prisoners incarcerated under the COUNTY's jurisdiction. MCLENNAN COUNTY had a statutory obligation to appropriate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction of the COUNTY.
6. Defendant MCLENNAN COUNTY SHERIFF LARRY LYNCH is, and at all material times referred to herein, was a resident of MCLENNAN COUNTY and the duly elected Sheriff of MCLENNAN COUNTY. In addition, at all times material hereto, Defendant LYNCH was a law enforcement officer and public employee, and was acting within the scope of his duties as well as under color oflaw. He is sued in his individual and official capacities.
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7. Defendants MCLENNAN COUNTY SHERIFF DEPUTIES sued herein by their fictitious names (Does 1 through 50) are all deputies who, as part of their duties at the MCLENNAN COUNTY Jail, subjected Plaintiff, and all those he represents, to pre-arraignment strip and/or visual body cavity searches without having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
8. At all material times mentioned herein, each of the defendants was acting under the color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of MCLENNAN COUNTY and/or the MCLENNAN COUNTY SHERIFF'S OFFICE.
9. Defendants whose names are not now known and who are sued by the fictitious names of ROES 1 through 20, are all agents and/or employees of one or another of the other named defendants who ordered, condoned, authorized, covered up, or were otherwise associated with the implementation of the illegal policy and practices relating to strip searches complained of herein.
10. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH were responsible for the screening, hiring, training, monitoring, supervision, and disciplining of subordinate employees of the MCLENNAN COUNTY Jail, and were the authorities empowering the MCLENNAN COUNTY SHERIFF'S DEPUTIES to incarcerate prisoners under the jurisdiction of MCLENNAN COUNTY. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH were responsible for administering the Jail facilities and for making, overseeing, and implementing the policies, practices, and customs challenged herein relating to the operation of the MCLENNAN
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COUNTY Jail. 11. Plaintiffs allegations against MCLENNAN COUNTY are based on acts and
omissions of the SHERIFF, his DEPUTIES, and the acts and omissions of MCLENNAN COUNTY SHERIFF'S OFFICE and their employees, agents, and representatives, as well as on acts and omissions of persons who are MCLENNAN COUNTY employees, and on MCLENNAN COUNTY's breach of its duty to protect plaintiff, and all those he represents, from the wrongful conduct of said persons and employees.
12. Defendants MCLENNAN COUNTY SHERIFF'S OFFICE and MCLENNAN COUNTY SHERIFF LARRY LYNCH, in his individual and official capacity, also maintained or permitted an official policy or custom of causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged plaintiff, and all those similarly situated, as herein alleged.
13. Class action plaintiffs are those similarly situated who, during the period beginning two (2) years before the filing of this Complaint, and continuing to this date, were subjected by defendants to pre~arraignment strip and/or visual body cavity searches without defendants having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
III. FACTS 14. On or about June 1, 2007, Plaintiff WILLIAM ROBERT BRADSHAW (hereinafter referred to as "Plaintiff') was pulled over and arrested allegedly for driving under the influence of alcohol in Waco, Texas. Plaintiff was transported to the MCLENNAN COUNTY Jail and, upon arrival at the MCLENNAN COUNTY Jail, and prior to any appearance
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before a judge and without there being any reasonable suspicion to believe that he was concealing contraband, plaintiff, pursuant to policies, practices, and procedures of defendants, and each of them, was subjected to a visual body cavity search (strip search) in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff was coerced, forced, and compelled to disrobe for the strip search in an area that could be and was observed by persons who were not participating in the search and who were of the opposite sex.
15. Plaintiff is informed and believes, and therefore alleges, that Defendants routinely follow their policy, practice, and custom of subjecting pre-arraignment detainees, including plaintiff, and all those he represents, to strip and visual body cavity searches without first having, and recording in writing, a reasonable suspicion that the search will be productive of contraband or weapons.
16. Plaintiff is informed and believes, and thereon alleges, that Defendants have the ability to identify all such similarly situated plaintiffs, specifically those who, while in Defendants' custody, at the MCLENNAN COUNTY Jail within two (2) years prior to the filing of this Complaint, were subjected to strip searches and/or visual body cavity searches prior to arraignment without Defendants first having, and recording, a reasonable suspicion that the searches would be productive of contraband or weapons.
17. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiff, and those he represents, were subjected to strip searches.
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18. As a result of being subjected to the strip searches complained of herein, Plaintiff, and each of the persons similarly situated, suffered physical, mental, and emotional distress, invasion of privacy, and violation of due process of law and federal constitutional rights, and is entitled to recover damages according to proof.
IV. CLASS CLAIMS 19. The strip and visual body cavity searches to which Plaintiff, and all those similarly situated, were subjected were performed pursuant to policies, practices, and customs of defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, MCLENNAN COUNTY SHERIFF LARRY LYNCH, and the individual MCLENNAN COUNTY SHERIFF'S DEPUTIES sued herein by the fictitious names 1 through 50, and the individuals whose names are not now known and who are sued by the fictitious names of ROES 1 through 20. The searches complained of herein were performed without regard to the nature of the alleged offenses for which Plaintiff, and all those similarly situated, had been arrested, without regard to whether or not Plaintiff, and those he represents, were eligible for being cited and released, without regard to whether or not Plaintiff, and those similarly situated, were eligible for and/or were released on his or her own recognizance, or on bail. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that the Plaintiff, or any of those similarly situated, so searched possessed weapons or contraband, and those facts being articulated and recorded in a supervisor-approved document. And the searches complained of herein were performed without Defendants taking reasonable precautions to make certain that Plaintiff, and each of those similarly situated, were not observed by others not involved in the search.
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20. Plaintiff brings this action on his own behalf and on behalf of all persons similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.
21. The class of plaintiffs is defined to include all persons arrested on charges not involving violence, drugs or weapons who, in the period from and including two (2) years prior to the filing of this Complaint, and continuing until this matter is adjudicated and the practices complained of herein cease, were arrested and subjected to a pre-arraignment strip and/or visual body cavity searches at the MCLENNAN COUNTY Jail without defendants first having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
22. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class are so numerous that joinder of all members is impractical. Plaintiff does not know the exact number of class members. Plaintiff is informed and believes, and thereupon alleges, that there are more than 10 persons per day who are arrested by defendants and/or are in the custody of defendants who are and have been subjected to the searches complained of herein as a result of Defendants' policy, practice, and custom relating to said searches.
23. In accordance with Federal Rules of CivilProcedure, Rule 23(a), Plaintiff is informed and believes, and thereupon alleges, that there are many questions of fact common to the class including, but not limited to: (1) whether Defendants routinely subject all persons arrested to visual body cavity searches prior to arraignment if they intend such persons to be housed in the MCLENNAN COUNTY Jail; (2) whether persons are subjected to strip and/or visual body cavity searches prior to arraignment without there being any reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs,
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weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip and/or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches; and, (4) whether the strip and/or visual body cavity searches are reasonably related to Defendants' penological interest to maintain the security of the jail and whether or not there are less intrusive methods for protecting any such interest.
24. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiff is informed and believes, and thereupon alleges, that there are many questions of law common to the class including, but not limited to: (l) whether Defendants may perform strip and/or visual body cavity searches on persons prior to their arraignment without reasonable suspicion, based on specific or articulable facts, to believe any particular prearraignment detainee has concealed drugs, weapons and/or contraband which would likely be discovered by a strip and/or visual body cavity search; (2) whether Defendants may perform strip and/or visual body cavity searches on persons without first reasonably relating the strip search of the subject to Defendants' penological interest to maintain the security of the jail and determining ifthere is a less intrusive method to protect that interest; (3) whether strip and/or visual body cavity searches may be conducted in areas where the searches can be observed by people not participating in the search without violating Plaintiffs' federal constitutional rights; and, (4) whether or not Defendants' strip search policy and procedure is in accordance with the Federal Constitution.
25. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the representative plaintiff is typical of the class. Plaintiff was arrested on an offense not involving violence, drugs or weapons and was searched, prior to arraignment, without Defendants having a
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reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supervisor-approved writing). Representative plaintiff has the same interests and suffered the same type of injuries as all of the class members. Plaintiffs claims arose because of Defendants' policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches before arraignment without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons. Each class member suffered actual damages as a result of being subjected to a strip and/or visual body cavity search. The actual damages suffered by the representative plaintiff is similar in type and amount to the actual damages suffered by each class member.
26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative plaintiff will fairly and adequately protect the class interests. Plaintiffs interests are consistent with and not antagonistic to the interests of the class.
27. In accordance with Federal Rules of Civil Procedure, Rule 23(g)(l), class counsel will fairly and adequately represent the interests of the class, have experience handling similar class actions (Bull, et al. v. San Francisco, et al., USDC, No. Dist. ofCA, Case No. C 03-1840 CRB; Haney, et al. v. Miami-Dade County, et al., USDC, So. Dist. ofFL, Miami Div., Case No. 04-20S16-CIV-Jordan/Brown; Allison, et al. v. Lincoln County, et al., USDC, NM, Case No. CV 05-881 WPJIWDS; Gallagher, et al. v. San Mateo County, et al., USDC, No. Dist. ofCA, Case No. C 04-0448 SBA), are knowledgeable about the applicable law, have the resources necessary to represent the class, and have no conflicts.
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28. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecution of separate actions by individual members of the class would create a risk that inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the complaint.
29. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(I)(B), prosecution of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a practical matter, substantially impair or impede the interests of the other members of the class to protect their interests.
30. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiff is informed and believes, and thereupon alleges, that Defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is superior to other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiff is informed and believes, and thereupon alleges, that the interests of members of the class in individually controlling the prosecution of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiff also is informed and believes, and thereupon alleges, that the amounts at stake for individuals are so small that separate suits would be impracticable. Plaintiff is informed and believes, and thereupon alleges, that most members of the class will not be able to find counsel to represent them. Plaintiff is informed and believes, and thereupon alleges, that it is desirable to

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concentrate all litigation in one forum because all of the claims arise in the same location; i.e., the MCLENNAN COUNTY Jail. It will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts.
32. Plaintiff does not know the identities of all of the class members. Plaintiff is informed and believes, and thereupon alleges, that the identities of the class members may be ascertained from records maintained by Defendants MCLENNAN COUNTY and MCLENNAN COUNTY SHERIFF'S OFFICE. Plaintiff is informed and believes, and thereupon alleges, that Defendants' records reflect the identities, including addresses and telephone numbers, of the persons who have been held in custody in the MCLENNAN COUNTY Jails. Plaintiff is informed and believes, and thereupon alleges, that records of, and maintained by Defendants reflect who was subject to a strip and/or visual body cavity search, when the search occurred, where the search occurred, whether any reasonable suspicion for the search existed and was recorded in a supervisor-approved writing, whether the search was videotaped, when persons searched were arraigned, and the charges on which such persons were arrested. Plaintiff is informed and believes, and thereupon alleges, that all of the foregoing information is contained in Defendants' computer system and that the information necessary to identify the class members, by last known addresses, and the dates and reasons for their arrests and/or release from custody, is readily available from said computer system.
33. In accordance with Federal Rules of Civil Procedure, Rule 23(c)(2)(b), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiff is informed and believes, and thereupon alleges, that Defendants' computer records contain a last
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known address for class members. Plaintiff contemplates that individual notice will be given to class members at such last known address by first class mail. Plaintiff contemplates that the notice will inform class members of the following:
i. The pendency of the class action and the issues common to the class; ii. The nature of the action; iii. Their right to "opt out" of the action within a given time, in which event
they will not be bound by a decision rendered in the class action; iv. Their right, ifthey do not "opt out," to be represented by their own
counsel and to enter an appearance in the case; otherwise they will be represented by the named class plaintiff and the named class plaintiffs counsel; and v. Their right, if they do not "opt out," to share in any recovery in favor of the class, and conversely to be bound by any judgment on the common issues adverse to the class.
V. FIRST CAUSE OF ACTION (Civil Rights Violations Under 42 U.S.C. § 1983) 34. Plaintiff incorporates by reference into this cause of action the allegations in each of the preceding paragraphs, as fully as ifrealleged and set forth herein. 35. Defendants' policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiffs, and all those similarly situated's, clearly established rights under the Fourth Amendment to be free from unreasonable searches and seizures, violated Plaintiffs, and all those similarly situated's, clearly established rights to

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due process and privacy under the Fourteenth Amendment, and directly and proximately damaged plaintiff, and all those similarly situated, as herein alleged, entitling plaintiff, and all class members, to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.
WHEREFORE, plaintiff prays for relief, for himself and for all persons similarly situated, as hereunder appears.
VI. SECOND CAUSE OF ACTION (Declaratory and Injunctive Relief) 36. Plaintiff incorporates by reference into this second cause of action the allegations of the preceding paragraphs, as fully as if realleged and set forth herein. 37. Plaintiff, on behalf of himself and the members of the class, seeks a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. 38. The constitutional violations alleged herein arise from official policies and practices sanctioned by Defendants. The harm which Plaintiff and the members of the class have sustained are directly traceable to these officially sanctioned policies and procedures. 39. Plaintiff and members ofthe class do not have a plain, adequate, speedy, or complete remedy at law to address the wrongs alleged in this Complaint, and they will suffer irreparable injury as a result of Defendants' misconduct unless injunctive and declaratory relief is granted. Plaintiff and members of the class are in real and immediate danger of sustaining future, direct injury as a result of Defendants' official policies and practices that are ongoing at the time of this suit.

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40. No cognizable burden will be placed on Defendants by requiring that no strip searches be undertaken without individualized reasonable suspicion. The public interest would be greatly enhanced by enforcement of policies and practices which adhere to the requirements of the federal Constitution. Absent injunctive relief, there is no guarantee the Defendants will cease their illegal policies and practices as alleged herein.
41. By reason of the foregoing, Plaintiff and members of the class are entitled to declaratory and injunctive relief as set forth above.
WHEREFORE, plaintiff prays for relief, for himself and for all persons similarly situated, as hereunder appears.
IX. DAMAGES 42. The above paragraphs are incorporated herein by reference as if fully set forth in this paragraph. 43. As a direct and proximate result of the wrongful and unlawful actions of Defendants, described above, Plaintiff and the members of the class were injured and have suffered and continue to suffer damages, including but not limited to distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special damages. 44. Defendants' acts and omissions, as set forth herein, were malicious, reckless, wanton, oppressive, and/or fraudulent, justifying an award of punitive damages against the individually named Defendants in their personal capacities, and against Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN
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COUNTY SHERIFF LARRY LYNCH, for the purpose of punishment and to deter others from the commission of like offenses.

x.
PRAYER WHEREFORE, Plaintiff, on behalf of himself and on behalf of the members of the class represented herein, respectfully prays for and demands judgment against the Defendants as follows:
(a) For judgment against defendants for compensatory damages, special damages, consequential damages and incidental damages under any or all of the causes of action, in an amount to be determined at the trial of this cause;
(b) For judgment declaring the rights of the parties; (c) For injunctive relief; (d) For reasonable attorneys' fees and costs incurred herein; (e) For pre-judgment and post-judgment interest in amounts to be determined
according to law; (f) For an award of punitive and exemplary damages, in an amount to be
determined at the trial of this cause; and (g) For such other and further relief as the Court deems just and proper.

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JURY TRIAL REQUEST COMES NOW Plaintiff WILLIAM ROBERT BRADSHAW, by and through his counsel, below listed, on his own behalf and on behalf of a class of similarly situated persons, and hereby demands trial by jury pursuant to the terms and conditions of Federal Rules of Civil Procedure 38, in regard to all issues in the above-referenced cause. DATED: September 5, 2008

Mark E. Merin, Esq.

California State Bar No. 43849

Joshua Kaizuka, Esq.

California State Bar No. 212195

LAW OFFICE OF MARK E. MERIN

2001 P Street, Suite 100

Sacramento, CA 95814

Telephone: (916) 443-6911

Facsimile: (916) 447-8336

E-Mail:

mark@markmerin.com

joshua@markmerin.com

James C. Harrington, Esq.

Texas State Bar No. 09048500

Scott Medlock, Esq.

Texas State Bar No. 24044783*

Wayne Krause, Esq.

Texas State Bar No. 24032644

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741-3436

Telephone: (512) 474-5073

Facsimile: (512) 474-0726

E-Mail:

jch@mail.utexas.edu

scott@texascivilrightsproject.org

waynekrause@texascivilrightsproject.org

Attorney for Plaintiffs and the Class
*Scott Medlock represents only plaintiff William Bradshaw, in his individual capacity, not class members

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t;,.JS 44 (R~v. 12107)

• • W08CA246 CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of'pleadings or other papers as required by law, except as provided by local rules ofcourt. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk of Court for the purpose of mitiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

WILLIAM ROBERT BRADSHAW, on behalf of himself and the

class of similarly situated persons

II

(b) County of Residence of First Listed Plaintiff ..;.M.;.;..;;.cL;;;.e;;;.n..;.n..;.a;;;.n~_ _ __

(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS
MCLENNAN COUNTY; MCLENNAN COUNTY SHERIFF'S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, et al.
County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney's (Firm Name. Address, and Telephone Number)

Mark E. Merin. Law Office of Mark E. Merin, 2001 P

James C. Harrington, Texas Civil Rights Project.

Street. Suite 100. Sacramento, CA 95811.916/443-6911 1405 Montopolis Dr.• Austin. TX 78741,

5121474·5073

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

LI I U.s. Government Plaintiff

"3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen ofThis State

LI I LI 1 Incorporated or Principal Place

LI 4 LI 4

of Business In This State

Ll2 U.S. Government Defendant

04 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

LI 2 LI 2 Incorporated and Principal Place of Business In Another State
LI 3 LI 3 Foreign Nation

LI 5 LI 5 LI 6 0 6

IV NATURE OF SUIT (Place an "X" in One Box Onlv)

('!ONTRACT

TOmFS'

FORFEI1'llfmilll!EN:ATY

'.'BANKRUPTCY

o 110 Insurance

PERSONAL INJURY

LI 120 Marine
o 130 Miller Act

LI 310 Airplane LI 315 Airplane Product

LI 140 Negotiable Inslmment

Liability

LI 150 Recovery ofOverpayment LI 320 Assault, Libel &

& Enforcement ofJudgment

Slander

LI lSI Medicare Act

LI 330 Federal Employers'

o 152 Recovery of Defaulted

Liability

Student Loans

LI 340 Marine

(Exc!. Veterans)

LI 345 Marine Product

LI 153 Recovery of Overpayment

Liability

of Veteran's Benefits 0 350 Motor Vehicle

LI 160 Stockholders' Suits
o 190 Other Contract

LI 355 Motor Vehicle Product Liability

LI 195 Contract Product Liability LI 360 Other Personal

LI 196 Franchise

Injury

PERSONAL INJURY LI 610 Agriculture
LI 362 Personal Injury • o 620 Other Food & Drug

Med. Malpractice LI 625 Drug Related Seizure

LI 365 Personal Injury •

of Property 21 USC 881

Product Liability o 630 Liquor Laws

LI 368 Asbestos Personal Injury Product Liability

LI 640 R.R. & Truck
o 650 Airline Regs. o 660 Occupational

PERSONAL PROPERTY

Safety/Health

LI 370 Other Fraud

LI 690 Other

0 371 Truth in Lending 0 380 Other Personal

.. ;LolilR'
o 710 Fair Labor Standards

Property Damage

Act

0 385 Property Damage Cl 720 LaborlMgmt. Relations

Product Liability LI 730 LaborlMgmt.Reporting

& Disclosure Act

LI 422 Appeal 28 USC 158 LI 423 Withdrawal
28 USC 157
PROPER' Y RlGH![,S LI 820 Copyrights
o 830 Patent
Cl 840 Trademark
srn;tA SEClJRl rv LI 861 HIA (1395ft) LI 862 Black Lung (923) LI 863 DIWC/DIWW (405(g))
o 864 SSID Title XVI
LI 865 RSI (405(g))

·.REALPROPERTY LI 210 Land Condemnation

CWJLRIGHTS LI 441 Voting

' 1:rIBRISONERtBfi}1ilTIONSi, LI 740 Railway Labor Act

FEDERAL TA'X,SWinl

Cl 510 Motions to Vacate Cl 790 Other Labor Litigation o 870 Taxes (U.S. Plaintiff

LI 220 Foreclosure

LI 442 Employment

o 230 Rent Lease & Ejectment LI 443 Housing/

Sentence Habeas Corpus:

LI 791 EmpJ. Ret. Inc. Security Act

or Defendant)
o 871 IRS-Third Party

LI 240 Torts to Land
o 245 Tort Product Liability o 290 All Other Real Property

Accommodations

LI 530 General

LI 444 Welfare

LI 535 Death Penalty

IMMIGRArIlON

LI 445 Amer. w/Disabilities - LI 540 Mandamus & Other ICl 462 Naturalization Application

Employment

LI 550 Civil Rights

LI 463 Habeas Corpus.

26 USC 7609

Cl 446 Amer. w/Disabilities - Cl 555 Prison Condition
Other Q( 440 Other Civil Rights

Alien Detainee LI 465 Other Immigration
Actions

OTHER STATUTES
LI 400 State Reapportionment LI 410 Antilmst LI 430 Banks and Banking 0 450 Commerce LI 460 Deportation LI 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service LI 850 Securities/Commoditiesl
Exchange LI 875 Customer Challenge
12 USC 3410 0 890 Other Statutory Actions LI 891 Agricultural Acts Cl 892 Economic Stabilization Act 0 893 Environmental Matters Cl 894 Energy Allocation Act LI 895 Freedom of Information
Act 0 900Appeal of Fee Determination
Under Equal Access to Justice 0 950 Constitutionality of State Statutes

o V. ORIGIN
12 1 Original

(Place an "X" in One Box Only)

2 Removed from

0 3 Remanded from

Proceeding

State Court

Appellate Court

0 4 Reinstated or 0 5 Transferr~d from 0 6 Multidistrict

Reopened

asnoethC.lefr dlstnct

Litigation

o Appeal to District
7 Judge from
Magistrate Jud ment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 USC sec. 1983
VI. CAUSE OF ACTION I-=B:-:ri:-:ef::-:d~es-cr-:-ip-:ti-on-o-:f-ca-us-e-:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Illegal Strip Searches

VII. REQUESTED IN COMPLAINT:

liZ! CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint:
JURY DEMAND: Iilf Yes 0 No

VIII. RELATED CASE(S)

IF ANY

(See inslmctions): JUDGE

DOCKET NUMBER

DATE
09/05/2008

Mark E. Merin

FOR OFFICE USE ONLY

------ ---------- ----- ----- RECEIPT#

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

INTAKE COpy

FILING FEE RECEIPT COpy

_mm._.

....... ~,.....""

TRIPLICATE

Tue Sep 9 13:47 2008

UNITED STATES DISTRICT COURT WACO, TX

Receipt No. 0600 00424399 Cash1er mcunning

Tender: Check Check Number: 6184

DO Code Dlv No 4680 6

Sub Acct Type Tender 1:086900 N 2 2:086400 N 2 3:510000 N 2 Total Amount:

Amount 60.00 100.00 190.00 350.00

NEW CASE FILING FEE: W-OB-CV-246 BRADSHAW VS MCLENNAN COUNTY. PAID BY LAW OFFICE OF MARK E. MERIN, 2001 P. STREET, SACRAMENTO. CA 95814 ----------------------------------------
Checks and money order drafts are accepted subject to collection and full cred1t will only be given when the check or draft has been accepted by the f1nancial institution on which it was drawn.

 
 Case 6:08-cv-00246-WSS-JCM Document 21 Filed 05/19/09 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WILLIAM ROBERT BRADSHAW,

§

and RANDALL LEE GERIK,

§

on behalf of themselves and the

§

class of similarly situated persons, §

Plaintiffs,

§

§

v.

§

§

§

McLENNAN COUNTY; et al.,

§

Defendants,

§

CIVIL ACTION NO. W-08-CV-246

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Sheriff Lynch’s Motion to Dismiss, and

Defendant McLennan County’s Motion to Dismiss. The arguments contained in

each Motion are similar enough that a single order may adequately address both.

Having reviewed the Motions, Response, Replies, and applicable legal authority, the

Court is of the opinion that the motions are meritorious in part and should be granted

in part and denied in part.

I. FACTS

On or about June 1, 2007, Plaintiff William Robert Bradshaw was arrested for

driving under the influence of alcohol. The arresting officer took Plaintiff to the

McLennan County jail where Plaintiff was subjected to a visual body cavity search,

which is better known as a strip search. This strip search was allegedly performed

Case 6:08-cv-00246-WSS-JCM Document 21 Filed 05/19/09 Page 2 of 17
prior to any appearance before a judge and without individualized reasonable suspicion that Plaintiff was concealing weapons or contraband.
On or about May 3, 2008, Plaintiff Randall Lee Gerik was arrested for driving under the influence of alcohol. Like Bradshaw, Gerik was arrested and taken to the McLennan County Jail where he was strip searched. Gerik alleges that said strip search was conducted without a reasonable suspicion that he was concealing contraband or weapons.
Plaintiffs allege that the Sheriff’s Deputies who conducted the strip search did so pursuant to established policies of the McLennan County Sheriff’s Office.1 Plaintiffs further allege that the McLennan County Sheriff’s Deputies routinely follow the policy of strip searching pre-arraignment detainees without having an individualized reasonable suspicion that such a search would be productive of weapons or contraband.
Plaintiffs now seek monetary damages and prospective relief. Specifically, Plaintiffs claim damages for “distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special damages” all arising from the strip search that each defendant endured. Pls.’ Complaint 16. Plaintiffs also allege that the defendants acted in a “malicious, reckless, wanton,
1Because class certification issues have not been addressed, this Order examines only the two named plaintiffs and not the class they seek to represent. The term “Plaintiffs” refers only to William Robert Bradshaw and Randall Lee Gerik.
2

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oppressive, and/or fraudulent” way that justifies an award of punitive damages. Pls.’ Complaint 16. Plaintiffs additionally ask the Court to enjoin Defendants from strip searching persons arrested for non-violent, non-drug related crimes.
Plaintiffs have sued McLennan County, the McLennan County Sheriff’s Office, McLennan County Sheriff Larry Lynch, individually and in his official capacity, McLennan County Sheriff Deputies, sued under their fictitious names Does 1 through 50 and Roes 1 through 20. In the motions before the Court, Defendants McLennan County and Sheriff Larry Lynch in his individual capacity request that the Court dismiss Plaintiffs’ claims against them. McLennan County argues that two named defendants–the McLennan County Sheriff’s Department and Sheriff Larry Lynch in his official capacity–should be dismissed because the Sheriff’s Department is not an entity of jural existence and the official capacity action is redundant of the action against McLennan County itself. Both McLennan County and Sheriff Lynch argue that Plaintiffs have failed to allege a constitutional violation. Sheriff Lynch also claims that he is entitled to qualified immunity. Finally, both McLennan County and Sheriff Lynch argue that Plaintiffs lack standing to seek prospective relief as the future harm to Plaintiffs is based on a hypothetical situation.
II. DISCUSSION In a Motion to Dismiss, the Court must take as true all well-pleaded, nonconclusory allegations in the Plaintiff’s Complaint. See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale, 677 F.2d 1045, 1050 (5th Cir. 1982). The Court may
3

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dismiss a complaint for failure to state a claim only if it appears beyond doubt from the face of Plaintiff’s pleadings that he can prove no set of facts in support of his claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). a. ACTIONS AGAINST THE McLENNAN COUNTY SHERIFF’S DEPARTMENT
AND SHERIFF LYNCH IN HIS OFFICIAL CAPACITY McLennan County first alleges that the McLennan County Sheriff’s Department, which is a named defendant, is not an entity of jural existence, nor a “person” under § 1983. McLennan County argues that the action against McLennan County Sheriff’s Office should therefore be dismissed pursuant to Rule 12(b)(6). Plaintiffs acknowledge that the McLennan County Sheriff’s Office is not a separate entity amenable to suit and do not object to the Sheriff’s Office being dismissed. Accordingly, McLennan County’s Motion to Dismiss should be granted in this respect, and Plaintiffs claims against the McLennan County Sheriff’s Office should be dismissed. McLennan County next alleges that the action against Sheriff Larry Lynch in his official capacity is redundant of the action against McLennan County itself and has no independent legal significance. Plaintiffs state that they do not object to dismissing the official capacity action against Sheriff Lynch “provided the Court does not grant McLennan County’s Motion to Dismiss.” Pl.’s Response 2. Suing a person in his official capacity has the same effect as suing the entity
4

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of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 166 (1985). By naming as defendants McLennan County and Sheriff Lynch in his official capacity Plaintiffs name the same entity as defendant twice. Plaintiffs attempt to make their consent to the dismissal of Sheriff Lynch in his official capacity contingent on the denial of McLennan County’s Motion to Dismiss. Regardless of whether Plaintiffs consent, the Court will dismiss the claims against Sheriff Lynch in his official capacity because they are redundant of the claims against McLennan County.
b. CONSTITUTIONAL VIOLATION Both McLennan County and Sheriff Lynch claim that the facts Plaintiffs allege, even if true, do not amount to a constitutional violation. McLennan County and Sheriff Lynch argue that current case law permits strip searches of persons arrested for violations of law that are not “minor.” Defendants interpret relevant case law as defining a minor offense as one for which jail time is not a possible punishment. Accordingly, Defendants argue, a strip search of a person arrested for DWI is acceptable as there is a minimum punishment of 72 hours confinement for such a person. Plaintiffs’ complaint should be dismissed, Defendants argue, for failure to sufficiently allege a Constitutional violation. Plaintiffs respond by arguing that case law from several different Circuits establishes that Defendants’ acts and omissions violated Plaintiffs’ rights under the 4th Amendment of the Constitution. The Supreme Court addressed the constitutionality of strip searches in Bell v. Wolfish, 441 U.S. 520 (1979). In Wolfish, pretrial detainees challenged the
5

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constitutionality of strip searches and body cavity searches that were conducted after contact visits with persons from outside the institution. Id. at 558. The Second Circuit Court of Appeals affirmed the District Court’s finding that the strip searches were acceptable. Id. The Court of Appeals also affirmed the lower court’s finding that body cavity searches should be prohibited absent probable cause to believe that the individual was concealing contraband. Id.
The Supreme Court acknowledged that body cavity searches are extremely intrusive. Id. Even still, the Court stated, “we nonetheless conclude that these searches do not violate [the Fourth] Amendment. The Fourth Amendment prohibits only unreasonable searches, . . . and under the circumstances, we do not believe that these searches are unreasonable.” Id. The Court emphasized the importance of according prison administrators “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 547.
Since the Supreme Court’s decision in Wolfish, circuit courts across the country have distinguished cases from Wolfish and have whittled away at the “wideranging deference” that the Supreme Court relied upon. See, e.g. Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981); Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986). Most significant to the immediate discussion is the Fifth Circuit’s decision in Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985). In Stewart, the Fifth Circuit addressed the
6

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constitutionality of a strip search policy that permitted strip searches of arrestees regardless of the crimes for which they were arrested. Id. One plaintiff in Stewart was arrested for public intoxication, the other on an outstanding warrant for issuing a bad check.2 After being arrested and taken to the Lubbock County jail the plaintiffs were strip searched pursuant to the aforementioned policy. The plaintiffs claimed that such searches violated their Fourth Amendment rights.
In its analysis the Fifth Circuit looked to cases from the Seventh and Fourth Circuits for guidance. The first case the Fifth Circuit addressed was Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983). In Mary Beth G. the Seventh Circuit distinguished Wolfish from the case then before the court and balanced the City of Chicago’s need to search “minor offenders” in order to preserve jail security with the minor offenders’ interest in their personal privacy. Id. at 156. The court there held that the city’s interest in security was outweighed by the privacy interests. Id. The court found the strip searches unreasonable because the authorities had no reasonable suspicion that the detainees were concealing weapons or contraband. Id.
The Stewart court next cited to Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). In that case, the Fourth Circuit applied and distinguished Wolfish to a strip search of a person arrested for driving while intoxicated. Id. at 1013. The Fourth
2The second plaintiff in the action sued on behalf of herself and all others similarly situated. For the purposes of this discussion, however, the Court will refer to the group as one individual.
7

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Circuit pointed out that the offense of driving while intoxicated was “not a minor traffic offense.” Id. Nevertheless, the Fourth Circuit said, it was an offense “not commonly associated by its very nature with the possession of weapons or contraband.” Id. That court held that the strip search of the arrestee was unconstitutional. Id.
Ultimately, the Fifth Circuit found Lubbock County’s strip search policy to be unconstitutional because it “was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband. . . .” Id. at 156-157. Although the holding in Stewart relied on the strip search policy’s application to minor offenders–contrary to the Logan court’s reasoning–this Court finds that Plaintiffs have alleged a constitutional violation.
The case law discussed above addresses two ends of a spectrum of offenses. On one end there are offenses that clearly fall into the “minor” category–offenses such as failing to register a dog, or public intoxication. At the other end of this spectrum are the offenses that Plaintiffs and Defendants accept to be “major”–drug offenses and violent crimes. Somewhere between those two ends lies the offense of driving under the influence of alcohol. The Court believes that the offense of driving under the influence of alcohol, unaccompanied by any other illegal activity, fits more appropriately with the minor offenses. Of course, a driving under the influence of alcohol arrest accompanied by, for instance, evading arrest or suspected intoxication on another drug would fall closer to the “major” offense end
8

Case 6:08-cv-00246-WSS-JCM Document 21 Filed 05/19/09 Page 9 of 17
of the spectrum than would DUI alone. The Court, however, is not presented with such a situation. As with other offenses at the minor end of the spectrum, the Court finds that an officer needs reasonable suspicion to strip search someone arrested solely for driving under the influence of alcohol.
In the case now before the Court Plaintiffs allege that they were arrested for driving under the influence of alcohol. As stated, this offense, by itself, falls more closely towards the “minor” end of the spectrum. The Court finds, therefore, that the strip search of a driving under the influence of alcohol arrestee without a reasonable suspicion that the strip search will yield contraband or weapons is a constitutional violation. Accordingly, Plaintiffs have stated a claim for a constitutional violation. Because Plaintiffs have done so, neither the action against McLennan County nor the action against Sheriff Lynch in his individual capacity should be dismissed on this ground.
c. QUALIFIED IMMUNITY Sheriff Lynch argues that he should be immune from suit in the case before the Court.3 Sheriff Lynch claims that his interpretation of relevant case law, which was discussed above, is reasonable and he was not provided with fair notice that his actions were prohibited by the Constitution. Plaintiffs counter by citing to a Northern District of Texas case from 1987 in addition to the case law discussed supra to show
3Because the Court finds that Plaintiffs’ claims against Sheriff Lynch in his official capacity should be dismissed any further discussion of Sheriff Lynch refers to Sheriff Lynch in his individual capacity.
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that the illegality of the strip search was clearly established at the time of the actions in question.
To determine whether an officer is entitled to qualified immunity a court must determine whether the plaintiff has stated a claim for a violation of a constitutional right, whether that right was clearly established at the time of the actions underlying this suit, and whether the defendant’s actions were objectively unreasonable in light of the legal rules clearly established at the time of the actions. See e.g., Thomas v. City of Dallas, 175 F.3d 358 (5th Cir. 1999). As discussed above, Plaintiffs have stated a claim for a constitutional violation. Accordingly, the Court must next determine whether the constitutional right allegedly violated by Sheriff Lynch was “clearly established” at the time of the alleged violation.
To be clearly established, a right must be defined well enough that “a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). The Supreme Court has likened this requirement to the right to fair notice held by defendants charged with a criminal offense. See id. The Hope Court clarified that “even though ‘the very action in question has [not] previously been held unlawful,’” “. . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question. . . .” Id. at 741 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). It is important to note that the Court must determine whether the constitutional violation is clearly established at the time of the alleged action. See
10

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Hope, 536 U.S. at 741. As discussed earlier, the Fifth Circuit has addressed the lawfulness of strip
searches in the context of “minor” offenses but not in DWI cases. The Fifth Circuit has not, however, addressed strip searches in the context of “major” offenses that are not the type normally associated with concealing weapons or contraband. The Fifth Circuit’s brief mention of the Logan case, discussed supra, provides little guidance. In fact, the Fifth Circuit recognized that the Logan court looked past the fact that DWI is not a “minor” offense and then immediately reached a decision based on the minor/major offense distinction. It is not objectively unreasonable for an official to interpret the Fifth Circuit’s ruling, which relied on the minor/major distinction, as rejecting the Fourth Circuit’s method that requires looking at whether or not the offense is one that is not commonly associated with the concealing of weapons or contraband.
Plaintiffs allege that the case of Holton v. Mohan, 684 F.Supp. 1407 (N.D. Tex. 1987), demonstrates that the illegality of strip searches such as the one before the Court was clearly established at the time of Plaintiffs’ arrests. Aside from its lack of precedential value, the Holton case was decided without the benefit of the following twenty years of case law in which the Fifth Circuit strengthened its reliance on the minor/major offense distinction. See, e.g. Watt v. City of Richardson, 849 F.2d 195 (5th Cir 1988); Kelly v. Foti, 77 F.3d 819 (5th Cir. 1996). Plaintiffs further claim that “it has been clearly established for some time that a search is ‘unreasonable’ if it
11

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violates the searched person’s constitutional rights.” Pl.’s Response 5 (citing Holton, 684 F.Supp. 1407(N.D. Tex 1987)). This tautological statement provides no further support for Plaintiffs’ position in light of the Supreme Court’s statements in Anderson. Anderson, 483 U.S. at 639 (stating that qualified immunity would be turned into unqualified liability if courts allowed plaintiffs to allege violations of extremely abstract rights to defeat qualified immunity).
Regardless of the state of law at the time of the Holton decision, at the time of the actions alleged in the case now before the Court the propriety of strip searches of a person arrested for DWI was not so clearly established as to provide fair warning to Sheriff Lynch that his actions amounted to a violation of the Fourth Amendment. Furthermore, Sheriff Lynch’s actions were not objectively unreasonable in light of the legal rules clearly established at the time of the alleged action. Accordingly, Sheriff Lynch is entitled to qualified immunity.
d. STANDING Defendants McLennan County and Sheriff Lynch argue that Plaintiffs lack standing to pursue injunctive or declaratory relief. Plaintiffs’ request for injunctive relief is based on mere conjecture and hypothetical future injury, Defendants claim. Defendants cite to City of Los Angeles v. Lyons, 461 U.S. 95 (1983) for support. Plaintiffs argue that their situation differs from that of the plaintiff in the Lyons case cited by Defendants. They claim that a Fifth Circuit case, Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990), supports standing because the complained of activity here
12

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is “capable of repetition, yet evading review.” Pls.’ Response 9. To pursue a claim for injunctive relief in federal court, a “plaintiff must show
that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Lyons, 461 U.S. at 101-102 (quoting Golden v. Zwickler, 394 U.S. 103, 109-110 (1969). This requirement, which is imposed by Article III of the Constitution, is designed to ensure true adverseness between the parties. Id. at 101. This true adverseness “‘sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” Id. (citing Baker v. Carr, 369 U.S. 186, 204 (1962)).
In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court addressed whether an injured party could seek injunctive relief. The injury in Lyons arose from police officers’ use of a choke-hold on the plaintiff. Id. at 97-98. The Court there held that the plaintiff had not established a real and immediate threat of future injury. Id. at 108. In order to be subjected to the injury to be enjoined Lyons would have to “again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Id. at 105.
Although Plaintiffs cite to Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990), to support the conclusion that they have standing, the Hernandez case actually supports the opposite result. See id. at 235. The plaintiff in Hernandez sought to
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enjoin harassment that accompanied his pursuit of a legal activity–crossing the border between the United States and Mexico by a United States Citizen. Id. The Fifth Circuit made clear that “courts have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Id. In Hernandez, the Fifth Circuit distinguished Lyons and held that the plaintiff had standing to seek an injunction of the defendants’ actions because, unlike Lyons, the action he sought to repeat was a legal activity. Id.
In order to suffer future injury, Plaintiffs Bradshaw and Gerik would have to drink enough alcohol to exceed the legal limit, enter a vehicle and drive while intoxicated, be pulled over by an officer, placed under arrest, taken to the McLennan County jail, and strip searched pursuant to the County’s policy. The potential for injury in this case is based entirely on a hypothetical future scenario where Plaintiffs again exercise poor judgment and drive while intoxicated. If drunk driving were a legal activity, Plaintiffs might have standing to pursue injunctive relief. See Hernandez, 913 F.2d at 235. This Court, however, will follow the holdings of the United States Supreme Court and the Fifth Circuit Court of Appeals and hold that Plaintiffs do not have standing to pursue their claims for injunctive and declaratory relief. See Lyons, 461 U.S. at 1667.
Plaintiffs next argue that they have standing to enjoin the County from strip searches because the alleged constitutional violation is “capable of repetition, yet evading review.” Pls.’ Response 9. Aside from the fact that Plaintiffs’ argument
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could not remedy the absence of a future injury, it lacks merit. Even if the Court were to entertain Plaintiffs’ argument, Plaintiffs’ claim that they were illegally strip searched remains to be litigated in this suit. In no sense does that claim “evade” review. See Lyons, 461 U.S. at 109. “Furthermore, the capable-of-repetition 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.” Id. (citing DeFunis v. Odegaard, 416 U.S. 312, 319 (1974)). As discussed above, Plaintiffs have failed to make such a showing. The “capable of repetition, yet evading review” argument proffered by Plaintiffs lacks merit and does not convey standing to Plaintiffs.
III. CONCLUSION Because the McLennan County Sheriff’s Department is not an entity subject to suit Plaintiffs’ claims against it should be dismissed. Because Plaintiffs’ claims against Sheriff Larry Lynch in his official capacity are redundant of the claims against McLennan County, they too should be dismissed. Taking as true all of Plaintiffs’ allegations, the Court finds that Plaintiffs have alleged a constitutional violation. Accordingly, McLennan County’s Motion to Dismiss should be denied to the extent it requests dismissal of Plaintiffs’ claims against McLennan County for failure to state a claim for a constitutional violation. Even though Plaintiffs have alleged facts that establish a constitutional violation, the right allegedly violated by Sheriff Lynch was not “clearly established”
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at the time of the alleged violation and his actions were not objectively unreasonable. Sheriff Lynch, therefore, is entitled to qualified immunity and Plaintiffs’ claims against Sheriff Lynch should be dismissed.
Finally, Plaintiffs lack standing to pursue injunctive relief. Any threat of future harm to the Plaintiffs is based on a hypothetical situation where Plaintiffs again violate the law. Furthermore, Plaintiffs’ claims do not “evade review” in any sense of the word. Plaintiffs do not, therefore, meet the requirements of Article III of the United States Constitution. Accordingly, it is
ORDERED that McLennan County’s Motion to Dismiss is GRANTED in part and DENIED in part. It is further
ORDERED that Plaintiffs’ claims against “the McLennan County Sheriff’s Department” and against “Sheriff Larry Lynch in his Official Capacity” are DISMISSED. It is further
ORDERED that McLennan County’s Motion to Dismiss for failure to allege a constitutional violation is DENIED. It is further
ORDERED that Sheriff Larry Lynch’s Motion to Dismiss for failure to allege a constitutional violation is DENIED. It is further
ORDERED that Sheriff Lynch’s claim for qualified immunity is GRANTED and Plaintiffs’ claims against Sheriff Lynch are DISMISSED. It is further
16

Case 6:08-cv-00246-WSS-JCM Document 21 Filed 05/19/09 Page 17 of 17 ORDERED that Plaintiffs’ claims for injunctive relief are DISMISSED for lack
of standing. SIGNED on this 19th day of May, 2009. _________________________________ WALTER S. SMITH, JR. CHIEF UNITED STATES DISTRICT JUDGE
17

 
 • Case 6:08-cv-00246-WSS-JCM Document 9

Filed 11/24/08 Page 1 of 18

FILES IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

u,s'rIr! NOV 242008
q~~~~, '." ..:RN DIS0T.$ COiFCTOeyU.Rt,T.~.

WILLIAM ROBERT BRADSHAW,

§

RANDALL LEE GERIK, on behalf of

§

~ . ,,, '-"~ .

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themselves and the class of similarly situated §

persons;

§

Plaintiffs, v.
MCLENNAN COUNTY; MCLENNAN COUNTY SHERIFF'S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, in his individual and official capacity; MCLENNAN COUNTY SHERIFF DEPUTIES DOES 1 THROUGH 50, AND ROES 1 THROUGH 20, INCLUSIVE,
Defendants.

§§ CASE NO: 6:08-CV-00246 WSS

§ §

JURY TRIAL REQUESTED

§

§

§

§

§

§

§

§

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS AND FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION This is an action for declaratory and injunctive relief, damages, and punitive damages against MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, Individually and in His Official Capacity, MCLENNAN COUNTY SHERIFF DEPUTIES, sued under their fictitious names as DOES 1 THROUGH 50, and ROES 1 THROUGH 20, for violations of Plaintiffs' constitutional rights resulting from application of MCLENNAN COUNTY'S and the MCLENNAN COUNTY SHERIFF'S OFFICE'S policies, practices, and customs concerning the use of strip searches and visual body

• Case 6:08-cv-00246-WSS-JCM Document 9

Filed 11/24/08 Page 2 of 18

cavity searches in MCLENNAN COUNTY Jails. Plaintiffs, for themselves and all those in the class of similarly situated persons, seek an order declaring illegal Defendants' policy of subjecting detainees in their custody to strip and visual body cavity searches before they are arraigned and without having any reasonable suspicion that the searches will be productive of contraband.
Defendants' strip search and visual body cavity search policies, practices, and customs violate those rights of Plaintiffs, and all those they represent, that are secured by the Fourth and Fourteenth Amendments to the United States Constitution and entitle Plaintiffs, and all those similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).
Plaintiffs allege against Defendants upon knowledge as to themselves and all matters of public record, and upon information and belief as to all other matters, as follows:
I. JURISDICTION AND VENUE 1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
II. PARTIES 3. Plaintiffs WILLIAM ROBERT BRADSHAW, RANDALL LEE GERIK, and all those similarly situated, are, and at all material times herein, were residents of the state of Texas who were arrested within the period beginning two (2) years before the filing of this Complaint,

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•Filed 11/24/08 Page 3 of 18

and continuing to this date, and who were subjected to strip and/or visual body cavity searches at a MCLENNAN COUNTY Jail, prior to being arraigned and/or without the Defendants first having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
4. Defendant MCLENNAN COUNTY is, and at all material times referred to herein, was a division of the state of Texas, that maintained or permitted an official policy or custom or practice causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged Plaintiffs and all those similarly situated, as herein alleged. Plaintiffs' allegations against MCLENNAN COUNTY are based on acts and omissions of the SHERIFF and his DEPUTIES and on acts and omissions ofthose who are COUNTY employees, and on the COUNTY's breach of duty to protect Plaintiffs, and all those they represent, from the wrongful conduct of said persons and employees.
5. Defendant MCLENNAN COUNTY SHERIFFS OFFICE was a governmental entity and local public body as those terms are defined in the Texas Civil Practice & Remedies Code, Title 5, Chapter 101(A). At all times material hereto, MCLENNAN COUNTY was the employer and/or supervisor of the individually named Defendants. MCLENNAN COUNTY had a statutory obligation to provide for the confinement of prisoners incarcerated under the COUNTY's jurisdiction. MCLENNAN COUNTY had a statutory obligation to appropriate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction of the COUNTY.
6. Defendant MCLENNAN COUNTY SHERIFF LARRY LYNCH is, and at all material times referred to herein, was a resident of MCLENNAN COUNTY and the duly elected

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Sheriff of MCLENNAN COUNTY. In addition, at all times material hereto, Defendant LYNCH was a law enforcement officer and public employee, and was acting within the scope of his duties as well as under color of law. He is sued in his individual and official capacities.
7. Defendants MCLENNAN COUNTY SHERIFF DEPUTIES, sued herein by their fictitious names (Does 1 through 50), are all deputies who, as part of their duties at the MCLENNAN COUNTY Jail, subjected Plaintiffs, and all those they represent, to prearraignment strip and/or visual body cavity searches without having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
8. At all material times mentioned herein, each of the Defendants was acting under the color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of MCLENNAN COUNTY and/or the MCLENNAN COUNTY SHERIFF'S OFFICE.
9. Defendants whose names are not now known and who are sued by the fictitious names of ROES 1 through 20, are all agents and/or employees of one or another of the other named Defendants who ordered, condoned, authorized, covered up, or were otherwise associated with the implementation of the illegal policy and practices relating to strip searches complained of herein.
10. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH were responsible for the screening, hiring, training, monitoring, supervision, and disciplining of subordinate employees of the MCLENNAN COUNTY Jail, and were the authorities empowering the MCLENNAN COUNTY SHERIFF'S DEPUTIES to incarcerate prisoners under the jurisdiction of MCLENNAN COUNTY. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY

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SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH were responsible for administering the Jail facilities and for making, overseeing, and implementing the policies, practices, and customs challenged herein relating to the operation of the MCLENNAN COUNTY Jail.
11. Plaintiffs' allegations against MCLENNAN COUNTY are based on acts and omissions of the SHERIFF, his DEPUTIES, and the acts and omissions of MCLENNAN COUNTY SHERIFF'S OFFICE and their employees, agents, and representatives, as well as on acts and omissions of persons who are MCLENNAN COUNTY employees, and on MCLENNAN COUNTY's breach of its duty to protect Plaintiffs, and all those they represent, from the wrongful conduct of said persons and employees.
12. Defendants MCLENNAN COUNTY SHERIFF'S OFFICE and MCLENNAN COUNTY SHERIFF LARRY LYNCH, in his individual and official capacity, also maintained or permitted an official policy or custom of causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged Plaintiffs, and all those similarly situated, as herein alleged.
13. Class action Plaintiffs are those similarly situated who, during the period beginning two (2) years before the filing of this Complaint, and continuing to this date, were subjected by Defendants to pre-arraignment strip and/or visual body cavity searches without Defendants having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.

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III. FACTS 14. On or about June 1,2007, Plaintiff WILLIAM ROBERT BRADSHAW (hereinafter referred to as "BRADSHAW") was pulled over and arrested allegedly for driving under the influence of alcohol in Waco, Texas. BRADSHAW was transported to the MCLENNAN COUNTY Jail and, upon arrival at the MCLENNAN COUNTY Jail, and prior to any appearance before a judge and without there being any reasonable suspicion to believe that he was concealing contraband, BRADSHAW, pursuant to policies, practices, and procedures of Defendants, and each of them, was subjected to a visual body cavity search (strip search) in violation of the Fourth and Fourteenth Amendments to the United States Constitution. BRADSHAW was coerced, forced, and compelled to disrobe for the strip search in an area that could be and was observed by persons who were not participating in the search and who were of the opposite sex. 15. On or about May 3, 2008, Plaintiff RANDALL LEE GERIK (hereinafter referred to as "GERIK") was pulled over and arrested allegedly for driving under the influence of alcohol in Waco, Texas. GERIK was transported to the MCLENNAN COUNTY JAIL and, upon arrival at the MCLENNAN COUNTY Jail, and prior to any appearance before a judge and without there being any reasonable suspicion to believe that he was concealing contraband, GERIK, pursuant to policies, practices, and procedures of Defendants, and each of them, was subjected to a visual body cavity search (strip search) in violation of the Fourth and Fourteenth Amendments to the United States Constitution. GERIK was coerced, forced, and compelled to disrobe for the strip search in an area that could be and was observed by persons who were not participating in the search and who were of the opposite sex.
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16. Plaintiffs are informed and believe, and therefore allege, that Defendants routinely follow their policy, practice, and custom of subjecting pre-arraignment detainees, including Plaintiffs, and all those they represent, to strip and visual body cavity searches without first having, and recording in writing, a reasonable suspicion that the search will be productive of contraband or weapons.
17. Plaintiffs are informed and believe, and thereon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs, specifically those who, while in Defendants' custody, at the MCLENNAN COUNTY Jail within two (2) years prior to the filing ofthis Complaint, were subjected to strip searches andlor visual body cavity searches prior to arraignment without Defendants first having, and recording, a reasonable suspicion that the searches would be productive of contraband or weapons.
18. Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiffs, and those they represent, were subjected to strip searches.
19. As a result of being subjected to the strip searches complained of herein, Plaintiffs, and each of the persons similarly situated, suffered physical, mental, and emotional distress, invasion of privacy, and violation of due process of law and federal constitutional rights, and are entitled to recover damages according to proof.
IV. CLASS CLAIMS
20. The strip and visual body cavity searches to which Plaintiffs, and all those similarly situated, were subjected were performed pursuant to policies, practices, and customs of
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Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, MCLENNAN COUNTY SHERIFF LARRY LYNCH, and the individual MCLENNAN COUNTY SHERIFF'S DEPUTIES sued herein by the fictitious names 1 through 50, and the individuals whose names are not now known and who are sued by the fictitious names of ROES 1 through 20. The searches complained of herein were performed without regard to the nature of the alleged offenses for which Plaintiffs, and all those similarly situated, had been arrested, without regard to whether or not Plaintiffs, and those they represent, were eligible for being cited and released, without regard to whether or not Plaintiffs, and those similarly situated, were eligible for and/or were released on his or her own recognizance, or on bail. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that Plaintiffs, or any of those similarly situated, so searched possessed weapons or contraband, and those facts being articulated and recorded in a supervisor-approved document. And the searches complained of herein were performed without Defendants taking reasonable precautions to make certain that Plaintiffs, and each of those similarly situated, were not observed by others not involved in the search.
21. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.
22. The class of Plaintiffs is defined to include all persons arrested on charges not involving violence, drugs or weapons who, jn the period from and including two (2) years prior to the filing of this Complaint, and continuing until this matter is adjudicated and the practices complained of herein cease, were arrested and subjected to a pre-arraignment strip and/or visual body cavity searches at the MCLENNAN COUNTY Jail without Defendants first having, and

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recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
23. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact number of class members. Plaintiffs are informed and believe, and thereupon allege, that there are more than 10 persons per day who are arrested by Defendants and/or are in the custody of Defendants who are and have been subjected to the searches complained of herein as a result of Defendants' policy, practice, and custom relating to said searches.
24. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are informed and believe, and thereupon allege, that there are many questions of fact common to the class including, but not limited to: (1) whether Defendants routinely subject all persons arrested to visual body cavity searches prior to arraignment if they intend such persons to be housed in the. MCLENNAN COUNTY Jail; (2) whether persons are subjected to strip and/or visual body cavity searches prior to arraignment without there being any reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip and/or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches; and, (4) whether the strip and/or visual body cavity searches are reasonably related to Defendants' penological interest to maintain the security ofthe jail and whether or not there are less intrusive methods for protecting any such interest.

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25. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are infonned and believe, and thereupon allege, that there are many questions of law common to the class including, but not limited to: (1) whether Defendants may perfonn strip andlor visual body cavity searches on persons prior to their arraignment without reasonable suspicion, based on specific or articulable facts, to believe any particular prearraignment detainee has concealed drugs, weapons and/or contraband which would likely be discovered by a strip andlor visual body cavity search; (2) whether Defendants may perfonn strip andlor visual body cavity searches on persons without first reasonably relating the strip search of the subject to Defendants' penological interest to maintain the security of the jail and detennining if there is a less intrusive method to protect that interest; (3) whether strip andlor visual body cavity searches may be conducted in areas where the searches can be observed by people not participating in the search without violating Plaintiffs' federal constitutional rights; and, (4) whether or not Defendants' strip search policy and procedure is in accordance with the Federal Constitution.
26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the representative Plaintiffs are typical of the class. Plaintiffs were arrested on offenses not involving violence, drugs or weapons and were searched, prior to arraignment, without Defendants having a reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supervisor-approved writing). Representative Plaintiffs have the same interests and suffered the same type of injuries as all of the class members. Plaintiffs' claims arose because of Defendants' policy, practice, and custom of subjecting arrestees to strip andlor visual body cavity searches before arraignment without having, and recording in writing, a reasonable

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suspicion that the search would be productive of contraband or weapons. Each class member suffered actual damages as a result of being subjected to a strip and/or visual body cavity search. The actual damages suffered by the representative Plaintiffs are similar in type and amount to the actual damages suffered by each class member.
27. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative Plaintiffs will fairly and adequately protect the class interests. Plaintiffs' interests are consistent with and not antagonistic to the interests of the class.
28. In accordance with Federal Rules of Civil Procedure, Rule 23 (g)(1 ), class counsel will fairly and adequately represent the interests of the class, have experience handling similar class actions (Bull, et al. v. San Francisco, et al., USDC, No. Dist. ofCA, Case No. C 03-1840 CRB; Haney,et al. v. Miami-Dade County, et al., USDC, So. Dist. ofFL, Miami Div., Case No. 04-20516-CIV-Jordan/Brown; Allison, et al. v. Lincoln County, et al., USDC, NM, Case No. CV 05-881 WPJIWDS; Gallagher, et al. v. San Mateo County, et al., USDC, No. Dist. ofCA, Case No. C 04-0448 SBA), are knowledgeable about the applicable law, have the resources necessary to represent the class, and have no conflicts.
29. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecution of separate actions by individual members of the class would create a risk that inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the complaint.
30. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B), prosecution of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a

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practical matter, substantially impair or impede the interests of the other members of the class to protect their interests.
31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs are informed and believe, and thereupon allege, that Defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
32. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is superior to other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the class in individually controlling the prosecution of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiffs also are informed and believe, and thereupon allege, that the amounts at stake for individuals are so small that separate suits would be impracticable. Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the same location; i.e., the MCLENNAN COUNTY Jail. It will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts.
33. Plaintiffs do not know the identities of all of the class members. Plaintiffs are informed and believe, and thereupon allege, that the identities of the class members may be ascertained from records maintained by Defendants MCLENNAN COUNTY and MCLENNAN COUNTY SHERIFF'S OFFICE. Plaintiffs are informed and believe, and thereupon allege, that

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Defendants' records reflect the identities, including addresses and telephone numbers, of the pe,rsons who have been held in custody in the MCLENNAN COUNTY Jails. Plaintiffs are informed and believe, and thereupon allege, that records of, and maintained by Defendants reflect who was subject to a strip and/or visual body cavity search, when the search occurred, where the search occurred, whether any reasonable suspicion for the search existed and was recorded in a supervisor-approved writing, whether the search was videotaped, when persons searched were arraigned, and the charges on which such persons were arrested. Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing information is contained in Defendants' computer system and that the information necessary to identify the class members, by last known addresses, and the dates and reasons for their arrests and/or release from custody, is readily available from said computer system.
34. In accordance with Federal Rules of Civil Procedure, Rule 23(c)(2)(b), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiffs are informed and believe, and thereupon allege, that Defendants' computer records contain a last known address for class members. Plaintiffs contemplate that individual notice will be given to class members at such last known address by first class mail. Plaintiffs contemplate that the notice will inform class members of the following:
i. The pendency of the class action and the issues common to the class; ii. The nature of the action; iii. Their right to "opt out" of the action within a given time, in which event
they will not be bound by a decision rendered in the class action;

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iv. Their right, if they do not "opt out," to be represented by their own counsel and to enter an appearance in the case; otherwise they will be represented by the named class Plaintiffs and the named class Plaintiffs' counsel; and
v. Their right, if they do not "opt out," to share in any recovery in favor of the class, and conversely to be bound by any judgment on the common issues adverse to the class.
V.
FIRST CAUSE OF ACTION (Civil Rights Violations Under 42 U.S.c. § 1983) 35. Plaintiffs incorporate by reference into this cause of action the allegations in each of the preceding paragraphs, as fully as if realleged and set forth herein. 36. Defendants' policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiffs', and all those similarly situated's, clearly established rights under the Fourth Amendment to be free from unreasonable searches and seizures, violated Plaintiffs', and all those similarly situated's, clearly established rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged Plaintiffs, and all those similarly situated, as herein alleged, entitling Plaintiffs, and all class members, to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly situated, as hereunder appears.

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VI. SECOND CAUSE OF ACTION (Declaratory and Injunctive Relief) 37. Plaintiffs incorporate by reference into this second cause of action the allegations of the preceding paragraphs, as fully as if realleged and set forth herein. 38. Plaintiffs, on behalf of themselves and the members of the class, seek a judgment declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches without individualized reasonable suspicion. 39. The constitutional violations alleged herein arise from official policies and practices sanctioned by Defendants. The harm which Plaintiffs and the members of the class have sustained are directly traceable to these officially sanctioned policies and procedures. 40. Plaintiffs and members of the class do not have a plain, adequate, speedy, or complete remedy at law to address the wrongs alleged in this Complaint, and they will suffer irreparable injury as a result of Defendants' misconduct unless injunctive and declaratory relief is granted. Plaintiffs and members of the class are in real and immediate danger of sustaining future, direct injury as a result of Defendants' official policies and practices that are ongoing at the time of this suit. 41. No cognizable burden will be placed on Defendants by requiring that no strip searches be undertaken without individualized reasonable suspicion. The public interest would be greatly enhanced by enforcement of policies and practices which adhere to the requirements of the federal Constitution. Absent injunctive relief, there is no guarantee the Defendants will cease their illegal policies and practices as alleged herein.

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42. By reason of the foregoing, Plaintiffs and members ofthe class are entitled to declaratory and injunctive relief as set forth above.
WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly situated, as hereunder appears.
IX. DAMAGES 43. The above paragraphs are incorporated herein by reference as iffully set forth in this paragraph. 44. As a direct and proximate result of the wrongful and unlawful actions of Defendants, described above, Plaintiffs and the members of the class were injured and have suffered and continue to suffer damages, including but not limited to distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special damages. 45. Defendants' acts and omissions, as set forth herein, were malicious, reckless, wanton, oppressive, and/or fraudulent,justifying an award ofpunitive damages against the individually named Defendants in their personal capacities, and against Defendants MCLENNAN COUNTY, MCLENNAN COUNTY SHERIFF'S OFFICE, and MCLENNAN COUNTY SHERIFF LARRY LYNCH, for the purpose of punishment and to deter others from the commission of like offenses.

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x.
PRAYER

WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of the members of the

class represented herein, respectfully pray for and demand judgment against the Defendants as

follows:

(a) For judgment against Defendants for compensatory damages, special damages, consequential damages and incidental damages under any or all of the causes of action, in an amount to be determined at the trial of this cause;
(b) For judgment declaring the rights of the parties; (c) For injunctive relief;

(d) For reasonable attorneys' fees and costs incurred herein; (e) For pre~judgment and post-judgment interest in amounts to be determined
according to law;

(f) For an award of punitive and exemplary damages, in an amount to be determined at the trial ofthis cause; and

(g) For such other and further relief as the Court deems just and proper.

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JURY TRIAL REQUEST

COMES NOW Plaintiffs WILLIAM ROBERT BRADSHAW and RANDALL LEE GERIK,

by and through their counsel, below listed, on their own behalf and on behalf of a class of similarly

situated persons, and hereby demand trial by jury pursuant to the terms and conditions of Federal

Rules of Civil Procedure 38, in regard to all issues in the above-referenced cause.

DATED: November 19, 2008

Respectfully submitted,

::~_-_-_- By:_ _l c \_ - - :_- -_ - =_--===_-c:;;,.:::

.'

Mark E. Merin, Esq.

California State Bar No. 43849

Joshua Kaizuka, Esq.

California State BarNo. 212195

LAW OFFICE OF MARK E. MERIN

2001 P Street, Suite 100

Sacramento, CA 95814

Telephone: (916) 443-6911

Facsimile: (916) 447-8336

E-Mail:

mark@markmerin.com

joshua@markmerin.com

James C. Harrington, Esq.

Texas State Bar No. 09048500

Scott Medlock, Esq.

Texas State Bar No. 24044783*

Wayne Krause, Esq.

Texas State Bar No. 24032644

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741-3436

Telephone: (512) 474-5073

Facsimile: (512) 474-0726

E-Mail:

jch@mail.utexas.edu

scott@texascivilrightsproject.org

waynekrause@texascivilrightsproject.org

Attorney for Plaintiffs and the Class
*Scott Medlock represents only Plaintiff William Bradshaw, in his individual capacity, not class members

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 Case 6:08-cv-00246-WSS-JCM Document 26 Filed 06/25/09 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

WILLIAM ROBERT BRADSHAW, RANDALL LEE GERIK, on behalf of themselves and the class of similarly situated persons;
Plaintiffs, v.
MCLENNAN COUNTY; MCLENNAN COUNTY SHERIFF’ S OFFICE; MCLENNAN COUNTY SHERIFF LARRY LYNCH, in his individual and official capacity; MCLENNAN COUNTY SHERIFF DEPUTIES DOES 1 THROUGH 50, AND ROES 1 THROUGH 20, INCLUSIVE,
Defendants.

§

§

§

§

§ §

CASE NO: 6:08-CV-00246 WSS

§

§

§

§

§

§

§

§

§

§

PLAINTIFF=S MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I.

INTRODUCTION

Plaintiffs William Robert Bradshaw, and Randall Lee Gerik hereby move for class
certification under Rule 23 (a) (3) of the Federal Rules of Civil Procedure. Plaintiffs move for
certification of the following classes:
Class A, represented by Plaintiff William Bradshaw: All persons, during the applicable statue of limitations (two years before the filing of the Complaint on September 8, 2008), and continuing until Defendants’ custom and policy was brought into compliance with the law, who were arrested and booked at the McLennan County Jail on “minor offenses,” that is,

•

on any charge (including felonies) not involving weapons, controlled

substances, or violence;

•

not involving a violation of parole or probation for such offenses,

•

without a history of such offenses within the last two years,

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and who were subjected to a strip search by defendants before arraignment at the McLennan County jail pursuant to Defendants’ uniform and indiscriminate (“blanket”) policy and custom of conducting such strip searches, without any individualized reasonable suspicion that the persons searched were concealing contraband.
Class B, represented by Plaintiff Randall Gerik:
All persons, during the applicable statue of limitations (two years before the filing of the Complaint on September 8, 2008), and continuing until Defendants’ custom and policy is brought into compliance with the law, who were arrested and booked at the McLennan County Jail on “minor offenses,” that is,

•

on any charge (including felonies) not involving weapons, controlled

substances, or violence;

•

not involving a violation of parole or probation for such offenses,

•

without a history of such offenses within the last two years,

and who were subjected to a strip search, including a visual body cavity inspection1 by defendants before arraignment at the McLennan County jail pursuant to Defendants’ uniform and indiscriminate (“blanket”) policy or custom of conducting such strip searches, without any individualized reasonable suspicion that the persons searched were concealing contraband.

Plaintiffs also request that Plaintiffs’ counsel be appointed to represent the certified classes,
pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. II. MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs submit this Memorandum in accordance with Rule CV-23 and Appendix A of the Local Rules of the United States District Court for the Western District of Texas. The Motion and this Memorandum are provisional, pending discovery of specific information within Defendants’ custody and control concerning the following factual issues: the number of persons in each class who have been booked at the McLennan County Jail within the applicable period of limitations; the Sheriff’ s policies and customs pertaining to the strip search of arrestees before arraignment; and the Sheriff’ s

1 Definition of Visual Body Cavity Search: Arrestees are instructed to remove all of their clothing, and hand each piece of clothing to the deputy who puts them in a bag. Once completely naked, the arrestee is instructed to bend over and spread their butt cheeks so that the deputy may inspect their anus with a flashlight. If the arrestee is male they are instructed to lift their penis and testicles so that the deputy may inspect them. The arrestee is then told to open their mouth so the deputy may look inside and then run their fingers through their hair.
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computerized information systems which will allow categorization by date, offense, and prearraignment status (as well as the identification) of the arrestees in each class.
Discovery has been stayed until the present time because the pendency of Defendants’ Motion to Dismiss, which was denied in pertinent part by this Court’ s Order on May 19, 2009. This Motion is timely under Appendix A of the Local Rules because the Defendants filed their Answer within the last 30 days, on May 29, 2009. A. Brief Statement Of The Case
The Complaint in this action was filed under the Federal Civil Rights Act, 42 U.S. C. § 1983, on September 8, 2008. This lawsuit arises out of the unconstitutional policies and procedures of strip searching arrestees at the McLennan County Jail in Waco, Texas. The facility is a local jail operated by Defendant McLennan County; the Defendants before the Court, pursuant to the Court’ s ruling on Defendants’ Motion to Dismiss, are McLennan County and McLennan County Sheriff Lynch in his individual capacity. (See, this Court’ s Order, May 19, 2009.)
Plaintiffs in the present case are two male arrestees who were arrested for driving under the influence and booked at the McLennan County Jail: Plaintiff William Bradshaw, the putative class representative of Class A, was subjected to a strip search upon being booked; Plaintiff Randall Gerik, the putative class representative of Class B, was subjected to a strip search which included a visual body cavity search. (Declarations of William Bradshaw and Randall Gerik, filed herewith.)
Pursuant to Defendants’ Motion to Dismiss, this Court has ruled that the strip search of Plaintiffs, as alleged in the Complaint, was a violation of the Fourth Amendment of the U.S. Constitution. (5/19/09 Order, pp. 8-9.) B. Statement Defining The Proposed Class, Including Geographical And Temporal Scope:
As noted above, Plaintiffs have moved for the certification of two classes of arrestees. The period for class membership extends from September 8, 2006 (two years before the filing of the Complaint) to such time as the unconstitutional custom or policy ceases.
The definition of the class excludes all those who were not arrested for a “minor offense” and makes the class ascertainable. (See, Declaration of Mark E. Merin filed herewith.) As many courts have recognized, and as counsel for Plaintiffs have learned in extensively litigating this issue in other
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jails, county jails now routinely rely on computers to record the identity of each arrestee, the date and charge(s) involved in the most recent arrest, the charges involved in each prior arrest, the probationary or parolee status of the arrestee, as well as the date of arraignment or first movement to court. This data can be sorted by offense and by date – a process that results in the exclusion of all those arrested on serious offenses as well as those with a pertinent history of those offenses, and that permits pinpointing of the applicable dates. (Declaration of Mark E. Merin, ¶ 11.)
The types of offenses to be considered “minor” can be negotiated by the parties and/or submitted to the Court for determination. (Declaration of Mark Merin, ¶ 13.) If records are kept, an expeditious file review is sufficient to resolve any further questions in the event such information is not noted in the computer. C. Description Of Plaintiffs’ Grievance And Why It Qualifies Plaintiffs As Members Of The
Class As Defined: Both Plaintiffs were arrested for driving under the influence – in unrelated instances a year apart in time – and were strip searched at the McLennan County jail. (See, Declarations of Plaintiff Bradshaw and Gerik filed herewith.) Since driving under the influence is a “minor offense,” as verified in this Court’ s order, and each was subjected to a strip search, they are members of the class of such “minor offense” arrestees who were subjected to unconstitutional strip searches at the jail. (Order 5/19/09. p. 8.) D. Appropriateness Of Certification Of The Class Under 23(b)(3): Under Rule 23 (b) (3), an action may be maintained as a class action if, in addition to satisfying the requirements of Rule 23 (a), the court finds that the questions of law common to the members of the class “predominate” over those affecting individuals members, and that the class action is “superior” to other methods for the “fair and efficient” adjudication of the controversy. The “predominance” requirement “tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.” Unger v. Amedisys, 401 F.3d 316, 320, (5th Cir. 2005.) In strip search cases, the courts have consistently rejected, with few exceptions, the claim that the hypothetical existence of individualized reasons to strip search class members will defeat class certification. Tardiff v. Knox County, 365 F.3d 1, 6, (1st Cir. 2004). See, also, Smith v. Dearborn County, 244 F.R.D. 512, 519-520 (S.D. Ind., 2007) [Court determined computer data would “provide
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all the information necessary to determine if a strip search is supported by individualized reasonable suspicion”: while the Sheriff would have the opportunity to adduce additional facts, “[u]nder this scenario, it is apparent to the court that the class action vehicle will be adequate to resolve this constitutionality issue for each class member.”]; Jones v. Murphy, 256 F.R.D. 519, 524-525 (D.Md., 2009) […”because the class was limited to those arrested for misdemeanors or ordinance violations unrelated to weapons or illegal drugs, there likely would not be much evidence of reasonableness”]; Mitchell v. County of Clinton, (N.D. N.Y. 2007) 2007 U.S. Dist. LEXIS 48589 *12-13 [class of minor arrestees certified; “the existence of defenses with respect to individual plaintiffs…will concern only a limited number of plaintiffs” and do not foreclose certification]; Streeter v. Sheriff of Cook County, (N.D. Ill., 2009) 576 F.R.D. 609, 614 [predominance requirement satisfied where question is whether the Sheriff’ s policy avoided all inquiry into reasonable suspicion, rather than whether individualized reasonable suspicion existed]; See also, Florence v. Board of Freeholders, 2008 U.S. Dist. LEXIS 22152 *37; Bizzarro v. Ocean County, 2009 U.S. Dist LEXIS 48384 *49-50; Williams v. County of Niagara, 2008 LEXIS 76206 *12-13; Bame v. Dillard, 2008 U.S. Dist LEXIS 40805.
Even causation and damages are, to a great extent, common to the class. Although compensatory damages may vary in amount, the causation and nature of the injury is the same within each class. Indeed, in previous cases, spreadsheets have been used to create “tiers” of damage recovery, setting a specified, standardized amount as the basic compensation and applying “enhancements” based on age, gender, disability, and the like. (Declaration of Mark Merin filed herewith.)
It is well established in the Fifth Circuit that “relatively few motions to certify a class fail because of disparities in the damages suffered by class members.” Bell Atlantic Corp v. AT & T Corp, 339 F. 3d 294, 306 (5th Cir 2003.) As the Court observed in Tardiff, supra, at the point consideration of damages becomes an issue, “the court would have further options, such as an agreement on modest uniform damages for those not claiming special injury, with masters to determine the (potentially few) serious claims to special injury. E.g, In re Corrugated Container Anti-Trust Litig., 80 F.R.D. 244 (S.D. Tex 1978.).”
In strip search cases where blanket policies are challenged, many courts have come to the conclusion that potential differences in the amount of damages do not defeat class certification. See,
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the specific analyses in Jones v. Murphy, supra, 256 F.R.D at 524-525; Florence v. Board of Freeholders, supra, 2008 U.S. Dist. LEXIS 22152 *37; Bizzarro v. Ocean County, supra, 2009 U.S. Dist LEXIS 48384 *49-50; Bame v. Dillard, supra, 2008 U.S. Dist LEXIS 40805. See also, Johnson v. District of Columbia, 248 F.R.D 46 at 57, 2008 U.S. Dist. LEXIS 9069; Blihovde v. St. Croix County, 219 F.R.D. 607 at 621, 2003 U.S. Dist. LEXIS 23964; Mack v. Suffolk County, 191 F.R.D. 16 at 25, 2000 U.S. Dist. LEXIS 4007.
Moreover, all of these courts have found that class certification is a superior method of resolving challenges to blanket strip search policies on behalf a narrowly defined class, such as the Plaintiffs’ classes here, because of the relatively modest individual recoveries, which give the incentive for individual lawsuits, and because the “common classes of law and fact permit the court to consolidate otherwise identical actions into a single efficient unit.” Bynumv. District of Columbia, 217 F.R.D. 27 at 49, 2003 U.S. Dist. LEXIS 4797. E. Appropriateness Of Certification As A Class Action Under Rule 23(a);
1. The Anticipated Number Of Class Members And How This Number Was Determined:
As this court is aware, Plaintiffs have not yet had the opportunity to initiate discovery. Therefore, Plaintiffs cannot give more than the most general picture of the numbers of arrestees who will qualify for membership in the two classes Plaintiff seeks to certify. However, it appears to be well in excess of forty members, a number cited in the Fifth Circuit, as well as other Circuits, as the minimum “ball park” number suitable for class treatment. See, Republic Nat’l Bank v. Denton & Anderson Co., 68 F.R.D. 208,213 (N.D. Tex. 1975).
The Texas Commission on Jail Standards website includes a “Jail Population Report,” which reflects that 107 persons were confined in the jail under the category “pretrial misdemeanants” in the month of May 2009. (Declaration of Mark E. Merin, ¶ 3, Exhibit A.) Since the class includes all the “minor offenders,” as defined above, arrested since September 2005, it appears – as a matter of common sense – that dozens, if not hundreds, of “minor offense” arrestees were strip searched under the Sheriff’ s blanket policies. In previous jail strip search cases handled by Plaintiffs’ counsel, the classes have typically included several thousand individual “minor offense arrestees” strip searched in accordance with blanket policies. (Declaration of Mark Merin, ¶ 4.)
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2. The Common Questions Of Law And Fact Involved:
“[T]he threshold for commonality is not high,” Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 573 (5th Cir. 1995), and many of the arguments supporting commonality will also support the typicality requirement. Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993); see also Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993). “The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Forbush, 994 F.2d at 1106; Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997).
As alleged in the First Amended Complaint, there are many questions of fact common to the class, including: (1) whether Defendants routinely subject all persons arrested to visual body cavity searches prior to arraignment if they intend such persons to be housed in the McLennan County Jail; (2) whether persons are subjected to strip and/or visual body cavity searches prior to arraignment without there being any reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip and/or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches; and, (4) whether the strip and/or visual body cavity searches are reasonably related to Defendants’ penological interest to maintain the security of the jail and whether or not there are less intrusive methods for protecting any such interest. (First Amended Complaint, ¶ 23.) In addition, as noted above, the type of injury and causation is common to the class, in that each injury and constitutional violation resulted from strip searches under the challenged policies.
There are also many questions of law common to the class, as alleged in the First Amended Complaint, including, but not limited to: (1) whether Defendants may perform strip and/or visual body cavity searches on persons prior to their arraignment without reasonable suspicion, based on specific or articulable facts, to believe any particular prearraignment detainee has concealed drugs, weapons and/or contraband which would likely be discovered by a strip and/or visual body cavity search; (2) whether Defendants may perform strip and/or visual body cavity searches on persons without first reasonably relating the strip search of the subject to Defendants’ penological interest to maintain the security of the jail and determining if there is a less intrusive method to protect that
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interest; (3) whether strip and/or visual body cavity searches may be conducted in areas where the searches can be observed by people not participating in the search without violating Plaintiffs’ federal constitutional rights; and, (4) whether or not Defendants’ strip search policy and procedure is in accordance with the Federal Constitution. (First Amended Complaint, ¶ 24.)
3. The Reasons Why Plaintiffs’ Claims Are Typical Of Those Of Other Class Members:
“The test for typicality, like commonality, is not demanding.” Lightbourn, 118 F.3d at 426, citing Forbush, 994 F.2d at 1106. “Typicality focuses on the similarity between the named plaintiffs' legal and remedial theories and the legal and remedial theories of those whom they purport to represent.” Lightbourn, 118 F.3d at 424. The typicality requirement is satisfied, as here, when the named plaintiffs advance legal and remedial theories similar to those that would be advanced by class members if they were pursuing parallel actions. Id. However, “the two sets of claims need not be completely co-extensive or identical.” Ledet, 548 F. Supp. at 782.
4. The Reason Why Representation By The Named Plaintiffs Is Adequate To Protect The Interests Of The Class: i. Whether The Claims Of The Named Plaintiffs Presently Or Potentially Conflict With Those Of Any Members Of The Class:
“The adequacy of representation requirement tends to merge with the commonality and typicality requirement, since an adequate representative's interest and injury must be aligned with the class, and also factors in competency of counsel and conflicts of class counsel.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n. 20 (1997). Here, the claims of the named plaintiffs are identical to those of the class. They do not presently or potentially conflict with those of the class.
ii. Whether The Claims Of The Class Require Subclasses Presently Or In The Future:
Subclasses are not presently required, nor are they likely to be required in the future. iii. The Prior Experience Of Counsel For Plaintiffs Indicating Their Capability To Handle The Lawsuit:
Plaintiffs are represented by Mark E. Merin of the Law office of Mark E. Merin along with cocounsel, James C. Harrington of the Texas Civil Rights Project, who individually and collectively
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have prior experience enabling them effectively to prosecute this action. (See Declarations of Mark E. Merin and James C. Harrington, filed herewith.)
iv. Whether Counsel Is Presently Representing Or Has At Any Time Represented A Class In Any Other Class Action, And If So, When And How Many Instances:
Plaintiffs’ counsel are, and have in the past, represented classes in other class action lawsuits. (See Declarations of Mark E. Merin and James C. Harrington, filed herewith.)
v. The Number Of Cases Plaintiffs’ Counsel Is Now Handling In Which Class Action Allegations Are Made?
Plaintiffs’ counsel are handling various cases in which class action allegations are being made. (See Declarations of Mark E. Merin and James C. Harrington, filed herewith.)
5. Other Pending Actions In Any Court Against Defendants Alleging The Same Or Similar Causes Of Action:
None. 6. Whether The Attorneys For The Named Plaintiffs Have Discussed And
Thoroughly Explained To The Plaintiffs The Nature Of A Class Action And Potential Advantages And Disadvantages To The Named Plaintiffs By Proceeding In A Class Action Rather Than Individually:
Yes. 7. Proposed Notices To Class Members And How And When The Notices Will Be
Given, Including A Statement Regarding Security Deposit For The Cost Of Notice:
Pursuant to the orders of the Court, Plaintiffs will give notice to class members both by publication, by website, and by first class mail. In handling class actions, Counsel has retained an expert class action administrator and anticipates that this may be appropriate or necessary in this case as well. (Declaration of Mark E. Merin, ¶ 16.) This notice will include information concerning eligibility for class membership (i.e., the period of the statute of limitations and a description of the type of arrest (i.e., a “minor offense” not involving drugs, weapons, or violence) which is a threshold requirement for participation in the class), as well as the contact information of Plaintiffs’ counsel and the deadline for filing a claim. If so ordered, Plaintiffs are prepared to submit to the Court a
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security deposit amounting to estimated publication costs, mailing costs, and other expenses.
8. The extent of any previous settlement negotiations and the likelihood of settlement with the named plaintiffs on an individual basis:

Settlement with the named Plaintiffs alone is unlikely, because Plaintiffs’ individual claims are identical to those asserted on behalf of the class. No settlement discussions have yet occurred.
9. Any other matters necessary and proper to the expedition of a decision on the motion and the speedy resolution of the case on the merits:

None.

III. CONCLUSION

Plaintiffs pray this Court grant Plaintiffs’ Motion for Class Certification, certifying the classes

as prayed for in this Motion and Proposed Order.

DATED: June 25, 2009

Respectfully submitted,

/s/ - “Mark E. Merin”

By: (Electronically signed 6/25/09)

Mark E. Merin, Esq.

California State Bar No. 43849

Joshua Kaizuka, Esq.

California State Bar No. 212195

LAW OFFICE OF MARK E. MERIN

2001 P Street, Suite 100

Sacramento, CA 95814

Telephone: (916) 443-6911

Facsimile: (916) 447-8336

E-Mail:

mark@markmerin.com

joshua@markmerin.com

James C. Harrington, Esq.

Texas State Bar No. 09048500

Scott Medlock, Esq.

Texas State Bar No. 24044783*

Wayne Krause, Esq.

Texas State Bar No. 24032644

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741-3436

Telephone: (512) 474-5073

Facsimile: (512) 474-0726

E-Mail:

jch@mail.utexas.edu

scott@texascivilrightsproject.org

waynekrause@texascivilrightsproject.org

Attorney for Plaintiffs and the Class
*Scott Medlock represents only Plaintiff William Bradshaw, in his individual capacity, not class members

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CERTIFICATE OF SERVICE I hereby certify that on the 25th day of June 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
James C. Harrington, Esq. Scott Medlock, Esq. Wayne Krause, Esq. TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741-3436 Michael W. Dixon, Esq. Herbert S. Bristow, Esq. HALEY & OLSON, P.C. Triangle Tower, Suite 600 510 North Valley Mills Drive Waco, Texas 76710 Robert S. Davis, Esq. FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701
/s/ - “Mark E. Merin” (Electronically signed 6/25/09) By: Mark E. Merin
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 Case 6:08-cv-00246-WSS-JCM Document 34 Filed 10/30/09 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

WILLIAM ROBERT BRADSHAW,

§

and RANDALL LEE GERIK,

§

Plaintiffs,

§

§

v.

§

CIVIL ACTION NO. W-08-CV-246

§

§

McLENNAN COUNTY; et al.,

§

Defendants.

§

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs’ Motion for Class Certification. Having reviewed

the Motion, Response, Reply, and applicable legal authority, the Court finds that the

Motion lacks merit and should be denied.

On or about June 1, 2007, Plaintiff William Robert Bradshaw was arrested for

driving under the influence of alcohol. The arresting officer took Plaintiff to the

McLennan County Detention Center where Plaintiff was subjected to a visual body

cavity search, which is better known as a strip search. This strip search was

allegedly performed prior to any appearance before a judge and without

individualized reasonable suspicion that Plaintiff was concealing weapons or

contraband.

On or about May 3, 2008, Plaintiff Randall Lee Gerik was arrested for driving

under the influence of alcohol. Like Bradshaw, Gerik was arrested and taken to the

McLennan County Detention Center where he was strip searched, and subjected to

a visual body cavity search. Gerik alleges that said search was conducted without

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a reasonable suspicion that he was concealing contraband or weapons. Plaintiffs allege that the Sheriff’s Deputies who conducted the strip search did
so pursuant to established policies of the McLennan County Sheriff’s Office. Plaintiffs further allege that the McLennan County Sheriff’s Deputies routinely follow the policy of strip searching pre-arraignment detainees without having an individualized reasonable suspicion that such a search would be productive of weapons or contraband.
On January 27, 2009, McLennan County, McLennan County Sheriff’s Office, and Sheriff Larry Lynch all moved to dismiss the case. Ultimately, the Court granted in part and denied in part those motions. The result of the Court’s Order was that Sheriff Larry Lynch and the McLennan County Sheriff’s Department were dismissed from the suit. The Court also found that a strip search of a person arrested for driving under the influence of alcohol, without reasonable suspicion that the search would produce contraband, was a violation of the constitution.
From the date of the filing of this suit, Plaintiffs have expressed their desire to proceed on behalf of similarly situated persons–as a class action suit. After the Court ruled on the defendants’ motions to dismiss, Plaintiffs sought class certification. Plaintiffs claim that this case meets all the requirements of Federal Rule of Civil Procedure 23, which determines whether class certification is appropriate. Defendant McLennan County (“Defendant”) disagrees and argues that several of the Rule 23 requirements have not been met.
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A court has substantial discretion in the determination of whether an action should be certified as a class action. See Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 601 (5th Cir. 2006). The Court must, however, “conduct a rigorous analysis of the rule 23 prerequisites before certifying a class.” Id. (citing Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)). In this analysis, the burden of proof lies on the party seeking certification. Steering Comm., 461 F.3d at 601.
The Court begins its analysis by looking to Rule 23 of the Federal Rules of Civil Procedure. That rule enumerates the requirements for certifying a class action suit. The rule states that members of a class
may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). These four requirements have been called numerosity, commonality, typicality, and adequacy. If the requirements of 23(a) are met, a class action may be maintained in three situations. FED. R. CIV. P. 23(b). Plaintiffs seek certification of the proposed class under the third situation enumerated in Rule 23(b)(3). That subsection allows for certification of a class if “the court finds that the questions of law or fact common to class members predominate over any questions
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affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3).
Numerosity The Court must first determine whether the proposed class is “so numerous that joinder of all members is impracticable.” 23(a)(1). Plaintiffs must show some evidence or a reasonable estimate of the number of purported class members. James v. Dallas, 254 F.3d 551, 570 (5th Cir. 2001). In James, the Court found that the plaintiffs had met their burden of proving numerosity by alleging that there were more than 100 class members. Id. The plaintiffs in James relied on an estimate that 580 individuals were affected by the defendant’s actions. Id. In the case before the Court, Plaintiffs rely on a Jail Population Report for the McLennan County Jail to support their claim that the numerosity requirement is met. That report shows that approximately 107 “pretrial misdemeanants” were confined in the McLennan County Jail in May, 2009. Using this number, counsel for Plaintiffs estimates that “dozens, if not hundreds, of ‘minor offense’ arrestees were strip searched under the Sheriff’s blanket policies.” (Pls.’ Mot., 6) To arrive at that conclusion, however, it appears that Plaintiffs’ counsel assumes that each of these “pretrial misdemeanants” fits into one of the two classes enumerated by Plaintiffs and that those 107 persons were arrested in the month of May. With those assumptions, Plaintiffs’ counsel extrapolates the number over a 2 year period and
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concludes that hundreds, if not thousands, of class members exist. While Plaintiffs’ counsel could be correct in his calculations, the Court does
not believe he has met his burden of proving that the numerosity requirement is satisfied. Plaintiffs’ counsel informs the Court that, because the case is in such an early stage, he would benefit from additional time to discover information that would help him show that the Rule 23(a) requirements are met. Although the Court finds that Plaintiffs have not proven the numerosity requirement, it is unnecessary to give additional time to Plaintiffs’ counsel to prove that requirement, as the predominance requirement, discussed below, precludes the Court from certifying the proposed classes.
Commonality Next, Plaintiffs must show that there are questions of law or fact common to the class. FED. R. CIV. P. 23(a)(2). The commonality requirement of Rule 23(a) requires there to be factual or legal issues that are common to all or substantially all of the class members. Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). The "commonality test is met when there is 'at least one issue whose resolution will affect all or a significant number of the putative class members.'" Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993)(citing Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)). "The threshold of 'commonality' is not high." Jenkins, 782 F.2d at 472. As long as class members are allegedly affected by a defendant's general policy, and the general policy is the crux or focus of the
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litigation, the commonality prerequisite is satisfied. Bowling v. Pfizer, Inc., 143 F.R.D. 141, 158 (S.D. Ohio 1992), appeal dism'd without opinion, 995 F.2d 1066 (6th Cir. 1993).
In the case before the Court, there exist issues whose resolution will affect a significant number of the putative class members. For example, whether Defendant’s strip search policy violates the constitution will affect every member of the proposed class. Because there is at least one issue whose resolution will affect a significant number of the proposed class members the commonality requirement of Rule 23(a)(2) is met in this instance.
Typicality The typicality requirement does not focus as much on the relative strengths of the cases of the named and unnamed plaintiffs as it does on the "similarity of the legal and remedial theories behind their claims." Jenkins, 782 F.2d at 472. Typicality requires the plaintiff to show that his claims arise from the same event, practice, or course of conduct that gives rise to the claims of other class members. Ford v. NYLcare Health Plans, 190 F.R.D. 422, 426 (S.D. Tex.1999). Moreover, the plaintiff must have the same interest and must have suffered the same injuries as those of the proposed class. Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230, 240 (W.D. Tex. 1999). This requirement focuses on the similarity of the legal and remedial theories of the named plaintiffs and the class members whom they purport to represent. Jenkins, 782 F.2d at 472. Typicality exists when the class
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members, were they to proceed in a parallel action, "would advance legal and remedial theories similar, if not identical, to those advanced by the named plaintiffs." Lightbourn v. El Paso, 118 F.3d 421, 426 (5th Cir. 1997). In fulfilling this element, plaintiffs or class representatives must possess "the same interests and suffer the same injuries as the proposed class." Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463, 467 (W.D.La. 1995). This requirement, like the commonality requirement, is not overly demanding. Id.
In the case before the Court the plaintiffs’ legal theories are similar to those of the proposed class. According to Plaintiffs’ complaint, Plaintiffs and the proposed class members were arrested for minor offenses and strip-searched pursuant to Defendant’s policy. If each member of the proposed class were to proceed to trial separately, he would advance a similar legal theory to that advanced by every other member and claim a similar type of damages for the emotional harm he allegedly suffered. While the extent of the alleged harm would differ greatly among plaintiffs, the type of harm is the same. The Court believes that the low threshold of Rule 23(a)(3) is met in this case.
Adequacy of Representation Rule 23(a)(4) requires the class representatives and their counsel to "fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). To meet this requirement, the class representatives must address two concerns: (1) concerns regarding the qualifications of counsel and (2) concerns regarding the
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relationship between the interests of the class representatives and the interests of other class members. Jenkins v. Raymark Indus., Inc., 109 F.R.D. 269, 273 (E.D. Tex. 1985), aff'd, 782 F.2d 468 (5th Cir. 1986)). The Court must be sure there is an absence of conflict and be assured of a vigorous prosecution. 1 NEWBERG ON CLASS ACTIONS § 3.22, at 3-126.
Plaintiffs argue that the legal claims of the representative plaintiffs are identical to the claims of the proposed class members.1 This situation, however, presents a unique dilemma. The proposed class includes “minor offenders.” Both parties recognize that there is a grey area where crimes could fall on either the minor or major side of the equation. While the determination of membership of the class is addressed later, the parties’ discussion in their response and reply demonstrates a problem with the proposed class representation.
In its response, Defendant asks whether certain crimes create a reasonable suspicion for a strip search. Defendant uses arson, indecency with a child, terroristic threats, abuse of prescription drugs, parole violations for violent crimes, bringing contraband into an institution, and escape or evading arrest as examples. In response, Plaintiffs concede that such crimes do create reasonable suspicion. By conceding this point, however, Plaintiffs’ attorneys have created a conflict between those proposed class members who are clearly minor offenders, and those proposed
1As discussed below, the extent of damages differs greatly. For the purposes of the instant analysis, however, the extent of each class member’s damages does not affect the adequacy of the named plaintiffs’ representation.
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class members who are arguably minor or major. For instance, an arson arrestee could argue that his crime does not create a reasonable suspicion for a strip search. But that arrestee’s proposed representative has already conceded this point, precluding the arrestee’s interests from being represented in this case. Plaintiffs have an obvious interest in maintaining this lawsuit, and the potential class members have an interest in being a part of the class. However, Plaintiffs’ interests may be best served by conceding points that effectively preclude litigation of whatever claims those would-be class members have. Because the plaintiffs interests may be in conflict with those of the proposed class members, a conflict between the representative parties and the proposed class members may exist.
The second part of the adequacy query favors class certification. Plaintiffs’ counsel appears to be experienced in litigating the same issues presented in this lawsuit in several different jurisdictions. Counsel’s qualifications appear adequate to protect the interests of the named plaintiffs and the proposed class members.
Although the Court is not convinced that Plaintiffs have met the four requirements of 23(a), the Court will now determine whether “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3). The analysis of whether certification under Rule 23(b)(3) is appropriate has devolved into two main inquiries: whether common issues predominate over individual issues and
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whether the class action is a superior adjudicatory scheme for resolution of the legal and factual claims raised by the plaintiffs.
The Predominance Inquiry The predominance inquiry involves a comparison of the issues common among the class members and the issues individual to them. This inquiry is far more demanding than the "commonality" requirement of Rule 23(a). Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997). The Rule 23(b)(3) predominance inquiry "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The cohesiveness of a class deteriorates when the plaintiffs seek compensatory damages. The very nature of these damages, compensating plaintiffs for emotional and other intangible injuries, necessarily implicates the subjective differences of each plaintiff's circumstances; they are an individual, not class-wide, remedy. The amount of compensatory damages to which any individual class member might be entitled cannot be calculated by objective standards. Furthermore, by requiring individualized proof of discrimination and actual injury to each class member, compensatory damages introduce new and substantial legal and factual issues. Allison, 151 F.3d at 417. Claims for compensatory damages, then, must be placed on the "individual" side of the equation, counseling against a finding of predominance. To do otherwise would allow a class action to "degenerate in practice into multiple lawsuits separately tried." Castano, 84 F.3d at 745 n. 19 (citing FED. R. CIV. P. 23 (advisory committee notes)).
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In the case before the Court, Plaintiffs seek damages for “distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special damages.” (Pls.’ Am. Compl. ¶ 45) As stated by the Fifth Circuit in Allison, “in this circuit, compensatory damages for emotional distress and other forms of intangible injury will not be presumed from mere violation of constitutional or statutory rights. Specific individualized proof is necessary . . . .” Allison at 416-17. In this case, the circumstances of each allegedly-unlawful search would have to be presented to the Court or jury. The potential amount of damages for a plaintiff strip-searched “in an area that could be and was observed by persons . . . who were of the opposite sex,” (Pls’ Am. Compl. ¶ 14), might differ from the damages for a person strip-searched in a private room, out of sight of members of the opposite sex. Even if two class members were subjected to the very same stripsearch, with the very same surrounding circumstances, after having been arrested for the very same crime, their damages would likely differ as a result of the “subjective differences of each plaintiff's circumstances.” Allison at 417. While one class member may be severely affected, another may not have suffered any embarrassment or emotional harm from the circumstances. The Court or the jury would have no way of determining damages without presentation of each class member’s personal injuries. The resultant series of mini-trials is the very harm Rule 23(b) is designed to prevent with its predominance inquiry.
Regardless of Plaintiffs’ desire to characterize the situation as “putative class
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members all strip searched pursuant to a blanket jail strip search policy,” each stripsearch was a separate event, with differing circumstances for each one. In this respect, the facts of this case are similar to those in Allison. Allison, 151 F.3d 402. Because of the predominance of individualized issues, this case is not proper for class certification.
Superiority Next the Court must determine whether the class action method of handling this case is superior to other available methods. There are several factors in this case that tip the scale against class certification. Primarily, the nature of Plaintiffs’ claims and the effect of the Court’s Order on Defendant’s earlier Motion to Dismiss make the class action vehicle inferior. In the Court’s earlier Order, the Court found that “the strip search of a driving under the influence of alcohol arrestee without a reasonable suspicion that the strip search will yield contraband or weapons is a constitutional violation.” (Court Doc. No. 21, Order on Defendant’s Mot. to Dismiss, 9) The Court’s analysis in that Order also made clear that a strip search of “minor offenders” was equally in violation of the constitution. By so ruling, the Court has addressed the greatest of the class-wide issues in this case. The remainder of the case, then, will involve Plaintiffs’ proof of the occurrence of the strip-search and the circumstances surrounding each search, the County’s presentation of any evidence it may have of individualized reasonable suspicion, and Plaintiffs’ presentation of evidence of individualized damages. The class action suit is not the superior method
12

Case 6:08-cv-00246-WSS-JCM Document 34 Filed 10/30/09 Page 13 of 14
of handling this case. Ascertainability As Defendant properly notes, a pre-requisite to any certification is that the
class must be ascertainable. DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). In the DeBremaecker case, the Fifth Circuit Court of Appeals held that a purported class of “residents of this State active in the ‘peace movement’ does not constitute an adequately defined or clearly ascertainable class.” Id. In affirming the district court’s denial of class certification, the Fifth Circuit relied, in part, on the “patent uncertainty” of the term peace movement. Id.
As in DeBremaecker, the proposed class definition here involves terms so uncertain that it makes ascertaining the class difficult. Namely, defining the class as persons arrested for “minor offenses” would require the Court to determine which offenses fall into the category of “minor.” In many cases, such a delineation would be simple. As Defendant points out, however, there are a number of crimes that present a more difficult question to the Court. If the parties were to agree on which crimes were minor versus which were major, the issue would still not be resolved. By negotiating the composition of the proposed classes, counsel for the plaintiffs and the class they represent would be forced to guard the interests of those class members who clearly fall into the “minor offense” category while negotiating away the claims of other potential class members whose crimes are not clearly minor or major, as discussed above.
13

Case 6:08-cv-00246-WSS-JCM Document 34 Filed 10/30/09 Page 14 of 14
Plaintiffs also propose that the classes in the case before the Court be defined, in part, as those arrestees who were strip-searched “without any individualized reasonable suspicion that the persons searched were concealing contraband.” (Pls.’ Mot. 2) In order to determine class membership, then, the Court would have to determine whether each proposed class member was strip-searched without individualized reasonable suspicion. This would, once again, result in a series of mini-trials that Rule 23 was created to prevent.
Even if the claims in this cause of action met the four requirements of Rule 23(a), the difficulty in ascertaining the class and the predominance of individual factual issues make class certification inappropriate. Accordingly, it is
ORDERED that Plaintiffs’ Motion for Class Certification (Court. Doc. No. 26) is DENIED.
SIGNED on this 30th day of October, 2009. _________________________________ WALTER S. SMITH, JR. CHIEF UNITED STATES DISTRICT JUDGE
14

 
 Case 6:08-cv-00246-WSS-JCM Document 46 Filed 05/07/10 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

WILLIAM ROBERT BRADSHAW, RANDALL LEE GERIK,
Plaintiffs, v.
MCLENNAN COUNTY; et al.,
Defendants.

§ § § § CASE NO: 6:08-CV-00246 WSS § § § § §

STIPULATION FOR DISMISSAL WITH PREJUDICE It is HEREBY STIPULATED AND AGREED by and between Plaintiffs, WILLIAM ROBERT BRADSHAW and RANDAL LEE GERIK, and Defendant, MCLENNAN COUNTY, by and through their undersigned counsel, that the First Amended Complaint against Defendant MCLENNAN COUNTY be dismissed with prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, each party to bear their own costs.

DATED: May 7, 2010

Respectfully Submitted,

By: /s/ - “Mark E. Merin”

Mark E. Merin, CA SBN 43849

Cathleen A. Williams, CA SBN 68029

LAW OFFICE OF MARK E. MERIN

2001 P Street, Suite 100

Sacramento, CA 95814

Telephone: (916) 443-6911

Facsimile: (916) 447-8336

E-Mail:

mark@markmerin.com

James C. Harrington, TX SBN 09048500

Scott Medlock, TX SBN 24044783*

Wayne Krause, TX SBN 24032644

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741-3436

Telephone: (512) 474-5073

Facsimile: (512) 474-0726

E-Mail:

jch@mail.utexas.edu

scott@texascivilrightsproject.org

Attorney for Plaintiffs and the Class
*Scott Medlock represents only Plaintiff William Bradshaw, in his individual capacity, not class members

1

Case 6:08-cv-00246-WSS-JCM Document 46 Filed 05/07/10 Page 2 of 3

SO STIPULATED. DATED: May 7, 2010
SO ORDERED. DATED:

Respectfully submitted,
By: /s/ - “Michael W. Dixon” Michael W. Dixon, TX SBN 05912100 Herbert S. Bristow, TX SBN 03020500 HALEY & OLSON, P.C. Triangle Tower, Suite 600 510 North Valley Mills Drive Waco, Texas 76710 Telephone: (254) 776-3336 Facsimile: (254) 776-6823 E-Mail: mdixon@haleyolson.com
Robert S. Davis, TX SBN 05544200 FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 Telephone: (903) 534-8063 Facsimile: (903) 534-1650 E-Mail: rsd@tyler.net
Attorneys for Defendant
WALTER S. SMITH, JR. CHIEF UNITED STATES DISTRICT JUDGE

2

Case 6:08-cv-00246-WSS-JCM Document 46 Filed 05/07/10 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 7th day of May 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
James C. Harrington, Esq. Scott Medlock, Esq. Wayne Krause, Esq. TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741-3436 Michael W. Dixon, Esq. Herbert S. Bristow, Esq. HALEY & OLSON, P.C. Triangle Tower, Suite 600 510 North Valley Mills Drive Waco, Texas 76710 Robert S. Davis, Esq. FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701
/s/ “Mark E. Merin” (Electronically signed 5/7/10) By: Mark E. Merin
3

 
 Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 1 of 6
CASREF, CLOSED
U.S. District Court [LIVE] Western District of Texas (Waco) CIVIL DOCKET FOR CASE #: 6:08−cv−00246−WSS−JCM

Bradshaw v. McLennan County et al Assigned to: Judge Walter S. Smith Referred to: Judge Jeffrey C. Manske Cause: 42:1983 Civil Rights Act
Plaintiff
William Robert Bradshaw on behalf of himself and the class of similarly situated persons

Date Filed: 09/08/2008 Date Terminated: 05/11/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by James C. Harrington Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: jch@mail.utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Kaizuka Law Office of Mark E. Merin 2001 P Street Suite 100 Sacramento, CA 95814 (916) 443−6911 Fax: (916) 447−8336 Email: joshua@markmerin.com TERMINATED: 12/01/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin Law Office of Mark E. Merin 2001 P Street Suite 100 Sacramento, CA 95811 (916) 443−6911 Fax: (916) 447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wayne Krause Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: waynekrause@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Medlock Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 (512) 474−5073 Fax: 512/474−0726 Email: scott@texascivilrightsproject.org ATTORNEY TO BE NOTICED

Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 2 of 6

Plaintiff
Randall Lee Gerik on behalf of themselves and the class of similarly situated persons

represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Kaizuka (See above for address) TERMINATED: 12/01/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Medlock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wayne Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant McLennan County
Defendant McLennan County Sheriff's Office TERMINATED: 05/19/2009

represented by Michael W. Dixon Haley &Olson, P.C. 510 North Valley Mills Dr. Suite 600 Waco, TX 76710 (254)776−3336 Fax: 254/776−6823 Email: mdixon@haleyolson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Scott Davis Flowers Davis, PLLC 1021 ESE Loop 323 Suite 200 Tyler, TX 75703 903/534−8063 Fax: 903/534−1650 Email: rsd@tyler.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael W. Dixon (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Scott Davis (See above for address) TERMINATED: 05/19/2009

Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 3 of 6

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Larry Lynch Sheriff McLennan County, in his individual and official capacity TERMINATED: 05/19/2009

represented by Michael W. Dixon (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Scott Davis (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
McLennan County Sheriff Deputies Does 1−50 inclusive

Defendant
Roes 1−20 inclusive

Date Filed 09/08/2008
09/08/2008 09/08/2008 09/09/2008 09/09/2008 09/09/2008 09/12/2008 09/12/2008 09/17/2008 09/22/2008
11/24/2008

# Docket Text
1 CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS AND FOR DECLARATORY AND INJUNCTIVE RELIEF ( Filing fee $ 350 receipt number 424399), filed by William Robert Bradshaw.(as, ) (Entered: 09/09/2008)
2 * MOTION to Appear Pro Hac Vice by Mark E. Merin on behalf of William Robert Bradshaw. (as, ) (Entered: 09/09/2008)
3 * MOTION to Appear Pro Hac Vice by Joshua Kaizuka on behalf of William Robert Bradshaw. (as, ) (Entered: 09/09/2008)
Pro Hac Vice Fee Paid by Mark E. Merin; Filing fee $ 25, receipt number 424401. (as, ) (Entered: 09/09/2008)
Pro Hac Vice Fee Paid by Joshua Kaizuka; Filing fee $ 25, receipt number 424400. (as, ) (Entered: 09/09/2008)
4 Summons Issued as to McLennan County, McLennan County Sheriff's Office, Larry Lynch. (as, ) (Entered: 09/09/2008)
5 ORDER GRANTING 2 Motion to Appear Pro Hac Vice Signed by Judge Walter S. Smith. (as, ) (Entered: 09/15/2008)
6 ORDER GRANTING 3 Motion to Appear Pro Hac Vice Signed by Judge Walter S. Smith. (as, ) (Entered: 09/15/2008)
7 NOTICE of Vacation by William Robert Bradshaw (Medlock, Scott) (Entered: 09/17/2008)
8 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by William Robert Bradshaw Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (as, ) (Entered: 09/23/2008)
9 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS AND FOR DECLARATORY AND INJUNCTIVE RELIEF against McLennan County, McLennan County Sheriff's Office, Larry Lynch, McLennan County Sheriff Deputies Does 1−50, Roes 1−20 amending 1 Complaint., filed by Randall Lee

Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 4 of 6

11/24/2008 01/22/2009 01/27/2009 01/27/2009 01/27/2009 02/10/2009
02/10/2009
02/13/2009 02/13/2009 02/17/2009 02/17/2009 02/18/2009 02/18/2009 05/19/2009

Gerik, William Robert Bradshaw.(as, ) (Entered: 11/25/2008)
10 Summons Reissued as to McLennan County, McLennan County Sheriff's Office, Larry Lynch in re: amended complaint (as, ) (Entered: 11/25/2008)
11 SUMMONS Returned Executed by William Robert Bradshaw, Randall Lee Gerik. McLennan County served on 1/12/2009, answer due 2/1/2009; McLennan County Sheriff's Office served on 1/9/2009, answer due 1/29/2009; Larry Lynch served on 1/9/2009, answer due 1/29/2009. (Merin, Mark) (Entered: 01/22/2009)
12 RESPONSE in Joint Opposition to Plaintiffs' Request for Class Certification by McLennan County, McLennan County Sheriff's Office, Larry Lynch. (Attachments: # 1 Proposed Order on Plaintiffs' Request for Class Certification)(Dixon, Michael) (Entered: 01/27/2009)
13 MOTION to Dismiss for Lack of Jurisdiction by McLennan County, McLennan County Sheriff's Office. (Attachments: # 1 Proposed Order on Defendant McLennan County's Motion to Dismiss)(Dixon, Michael) (Entered: 01/27/2009)
14 MOTION to Dismiss for Lack of Jurisdiction by Larry Lynch. (Attachments: # 1 Proposed Order on Defendant Sheriff Larry Lynch's Motion to Dismiss)(Dixon, Michael) (Entered: 01/27/2009)
15 Response in Opposition to Motion, filed by William Robert Bradshaw, Randall Lee Gerik, re 13 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant McLennan County Sheriff's Office, Defendant McLennan County, 14 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Larry Lynch (Merin, Mark) (Entered: 02/10/2009)
16 CERTIFICATE of Counsel re 12 Response, The Parties' Certificate of Conference and Acknowledgment that the Opposition to Plaintiffs' Request for Class Certification Does Not Require a Response or Hearing Pending Ruling on Defendants' Motions to Dismiss by Mark E. Merin on behalf of William Robert Bradshaw, Randall Lee Gerik, McLennan County, McLennan County Sheriff's Office, Larry Lynch, McLennan County Sheriff Deputies Does 1−50 (Merin, Mark) (Entered: 02/10/2009)
17 Unopposed MOTION for Leave to Exceed Page Limitation by McLennan County. (Attachments: # 1 Proposed Order on McLennan County's Unopposed Motion to Exceed Page Limit)(Dixon, Michael) (Entered: 02/13/2009)
18 Unopposed MOTION for Leave to Exceed Page Limitation by Larry Lynch. (Attachments: # 1 Proposed Order On Larry Lynch's Upposed Motion to Exceed Page Limit)(Dixon, Michael) (Entered: 02/13/2009)
Text Order GRANTING 17 Motion for Leave to File Excess Pages entered by Judge Walter S. Smith. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ss) (Entered: 02/17/2009)
Text Order GRANTING 18 Motion for Leave to File Excess Pages entered by Judge Walter S. Smith. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ss) (Entered: 02/17/2009)
19 REPLY to Response to Motion, filed by McLennan County, re 13 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant McLennan County Sheriff's Office, Defendant McLennan County (Dixon, Michael) (Entered: 02/18/2009)
20 REPLY to Response to Motion, filed by Larry Lynch, re 14 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Larry Lynch (Dixon, Michael) (Entered: 02/18/2009)
21 ORDER GRANTING IN PART AND DENYING IN PART 13 McLennan County's Motion to Dismiss for Lack of Jurisdiction. Ordered that Plaintiff's claims against "the McLennan County Sheriff's Department" and against "Sheriff Larry Lynch in his Official Capacity" are DISMISSED. Ordered that McLennan County's Motion to Dismiss for failure to allege a constitutional violation is DENIED. ORDER GRANTING IN PART AND DENYING IN PART 14 Larry Lynch's Motion to Dismiss for Lack of Jurisdiction. Ordered that Sheriff Larry Lynch's

Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 5 of 6

05/29/2009 06/02/2009
06/02/2009 06/19/2009 06/25/2009
07/06/2009
07/06/2009 07/16/2009 07/16/2009
08/03/2009 08/03/2009 09/15/2009 10/30/2009 11/06/2009 11/10/2009

motion to dismiss for failure to allege a constitutional violation is DENIED. Ordered that Sheriff Lynch's claim for qualified immunity is GRANTED and Plaintiff's claims against Sheriff Lynch are DISMISSED. Ordered that Plaintiff's claims for injunctive relief are DISMISSED for lack of standing. Signed by Judge Walter S. Smith. (as, ) (Entered: 05/20/2009)
22 McLennan County's Original ANSWER to 9 Amended Complaint, by McLennan County.(Dixon, Michael) (Entered: 05/29/2009)
23 ***Scheduling Order has been withdrawn and a new one will be generated after ADR mediation.***SCHEDULING ORDER: Jury Selection set for 3/1/2010 09:30AM before Judge Walter S. Smith. Jury Trial set for 3/1/2010 09:30 AM before Judge Walter S. Smith. ADR Report Deadline due by 8/3/2009. Amended Pleadings due by 11/2/2009. Discovery due by 12/2/2009. Joinder of Parties due by 10/2/2009. Motions due by 12/2/2009.. Signed by Judge Walter S. Smith. (as, ) Modified on 2/9/2010 (sm3, ). (Entered: 06/03/2009)
24 Order Concerning Courtroom Decorum and Trial Procedures.. Signed by Judge Walter S. Smith. (as, ) (Entered: 06/03/2009)
25 NOTICE OF VACATION by William Robert Bradshaw (Medlock, Scott) (Entered: 06/19/2009)
26 MOTION to Certify Class by William Robert Bradshaw, Randall Lee Gerik. (Attachments: # 1 Appendix Declaration of Mark E. Merin in Support of Motion for Class Certification, # 2 Appendix Declaration of James C. Harrington in Support of Motion for Class Certification, # 3 Appendix Declaration of William Robert Bradshaw in Support of Motion for Class Certification, # 4 Appendix Declaration of Randall Lee Gerik in Support of Motion for Class Certification, # 5 Proposed Order Granting Plaintiffs' Motion for Class Certification)(Merin, Mark) (Entered: 06/25/2009)
27 RESPONSE to Motion, filed by McLennan County, re 26 MOTION to Certify Class filed by Plaintiff Randall Lee Gerik, Plaintiff William Robert Bradshaw (Attachments: # 1 Proposed Order on Motion for Class Certification)(Dixon, Michael) (Entered: 07/06/2009)
28 Miscellaneous Objection to 26 MOTION to Certify Class Defendant's Objections to Declarations Filed in Support of Plaintiffs' Motion for Class Certification by McLennan County. (Dixon, Michael) (Entered: 07/06/2009)
29 REPLY to Response to Motion, filed by William Robert Bradshaw, Randall Lee Gerik, re 26 MOTION to Certify Class filed by Plaintiff Randall Lee Gerik, Plaintiff William Robert Bradshaw (Merin, Mark) (Entered: 07/16/2009)
30 RESPONSE Plaintiffs' Reply to Defendants' Objections to Declarations Filed in Support of Plaintiffs' Motion for Class Certification to 28 Miscellaneous Objection by William Robert Bradshaw, Randall Lee Gerik. (Merin, Mark) (Entered: 07/16/2009)
31 ADR Report Filed − NON−CONSENT to Alternate Dispute Resolution (ADR) by McLennan County(Dixon, Michael) (Entered: 08/03/2009)
32 ADR Report Filed − CONSENT to Alternate Dispute Resolution (ADR) by William Robert Bradshaw, Randall Lee Gerik(Merin, Mark) (Entered: 08/03/2009)
33 NOTICE of Vacation by William Robert Bradshaw (Medlock, Scott) (Entered: 09/15/2009)
34 ORDER DENYING 26 Motion to Certify Class Signed by Judge Walter S. Smith. (sm3, ) (Entered: 10/30/2009)
35 MOTION for Protective Order by McLennan County. (Attachments: # 1 Proposed Order)(Dixon, Michael) (Entered: 11/06/2009)
36 ORDER REFERRING CASE to Magistrate Judge Jeffrey C. Manske for disposition of all discovery related matters. Signed by Judge Walter S. Smith. (sm3, ) (Entered: 11/12/2009)

Case: 6:08-cv-00246-WSS-JCM As of: 04/07/2011 10:07 PM CDT 6 of 6

11/24/2009 11/24/2009 12/01/2009 12/03/2009
12/14/2009 01/19/2010
02/09/2010
03/08/2010 03/09/2010 03/15/2010
03/15/2010 05/07/2010 05/11/2010

37 MOTION for Summary Judgment on the Action of Plaintiff Gerik by McLennan County.. Motions referred to Judge Jeffrey C. Manske. (Dixon, Michael) (Entered: 11/24/2009)
38 APPENDIX to 37 MOTION for Summary Judgment on the Action of Plaintiff Gerik by McLennan County. (Dixon, Michael) (Entered: 11/24/2009)
39 NOTICE of Change in Counsel by William Robert Bradshaw, Randall Lee Gerik (Merin, Mark) (Entered: 12/01/2009)
40 Memorandum in Opposition to Motion, filed by William Robert Bradshaw, Randall Lee Gerik, re 37 MOTION for Summary Judgment on the Action of Plaintiff Gerik filed by Defendant McLennan County (Attachments: # 1 Affidavit of Mark E. Merin, # 2 Appendix of Facts and Proof, # 3 Proposed Order)(Merin, Mark) (Entered: 12/03/2009)
41 REPLY to Response to Motion, filed by McLennan County, re 37 MOTION for Summary Judgment on the Action of Plaintiff Gerik filed by Defendant McLennan County (Dixon, Michael) (Entered: 12/14/2009)
42 Joint MOTION to Withdraw Scheduling Order and for Referral to Alternative Dispute Resolution by McLennan County. (Attachments: # 1 Proposed Order). Motions referred to Judge Jeffrey C. Manske. (Dixon, Michael) (Entered: 01/19/2010)
Text Order GRANTING 42 Motion to Withdraw entered by Judge Walter S. Smith. A new scheduling order will be entered after mediation is complete, if the parties fail to reach a settlement. This is a text−only entry generated by the court. There is no document associated with this entry.) (ss) (Entered: 02/09/2010)
43 NOTICE of Unavailability of Counsel by William Robert Bradshaw, Randall Lee Gerik (Merin, Mark) (Entered: 03/08/2010)
44 NOTICE of Vacation by William Robert Bradshaw (Medlock, Scott) (Entered: 03/09/2010)
45 Sua Sponte ORDER that the parties notify the Court within 10 days of the date of this Order if there is a disagreement with the terms of the mediation or the mediator. ORDER that the parties have a person with settlement authority or have attorneys representing with complete settlement authority at the mediation. Signed by Judge Jeffrey C. Manske. (sm3, ) (Entered: 03/15/2010)
Mediation Conference scheduled for April 30, 2010. (sm3, ) (Entered: 03/26/2010)
46 STIPULATION of Dismissal with Prejudice by William Robert Bradshaw, Randall Lee Gerik, McLennan County. (Merin, Mark) (Entered: 05/07/2010)
47 ORDER DISMISSING CASE. Signed by Judge Walter S. Smith. (sm3, ) (Entered: 05/12/2010)