UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

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:

PAUL MARIOTT, BARBARA DAVIS, :

and ANDY RIVERA,

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both individually and on behalf of a class of :

others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF MONTGOMERY, :

THE MONTGOMERY COUNTY

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SHERIFF’S DEPARTMENT, MICHAEL :

AMOTO, both individually and in his

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official capacity as Sheriff of the County of :

Montgomery, JEFFREY SMITH, both :

individually and as Undersheriff of the

:

County of Montgomery, KEVIN SNELL, :

both individually and as the former

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Undersheriff of t he County o f Montgomery, :

JOHN PECORA , both individually and as :

Jail Administrator in the Mont gomery

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County Sheriff’s Department,

:

SUE BUDDLES, both individually and as :

Lieutenant in the Montgomery County

:

Sheriff’s Department,

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:

Defendants.

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____________________________________:

Index No.03 CV 0531 (DNH)(DEP)
FIRST AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED :

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INTRODUCTION 1. This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiffs and proposed Class by the United States Constitution and the laws of the United States of America. For at least the past five years, the Montgomery County Sheriff’s Department has had a policy of strip-searching all individuals who enter the Montgomery County Jail and booked into the facility, regardless of reasonable suspicion. Upon information and belief, this policy is derived fromthe written procedures ofthe Montgomery County Sheriff’s Department, and was promulgated by senior Department officials; specifically, Defendants Sheriff Michael Amat o, Undersheriffs Kevin Snell and Jeffrey Smith, Jail Administrator John Pecora, and Corrections Lieutenant Sue Buddles. 2. It has been well established in this judicial circuit for many years that individuals charged with misdemeanors or violations cannot be strip-searched absent particularized reasonable suspicion that they possess weapons or contraband. In short , the policy of Montgomery County and the Montgomery County Sheriff’s Department to force those charged with minor crimes to undergo the indignities of a strip search upon entry into the Montgomery County Jail is not only clearly illegal, but is insensitive and unnecessary. 3. Plaintiffs bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. They seek monetary damages for themselves and each member of the proposed class, a declaration that the Sheriff’s Department’s policies are unconstitutional, and an injunction precluding Montgomery County and the Montgomery County Sheriff’s Department from continuing to violate
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the rights of those placed into their custody. With this as a background, Plaintiffs complain as follows:
JURISDICTION 4. This Court has jurisdiction over this action under the provisions of 28 U.S.C. § 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United Stat es secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. §2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. 5. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES 6. Plaintiff Paul Marriott (“Marriott”) is 37 years old and resides in Montgomery County. On or about September 13, 2001, Marriott was arrested and placed in the Montgomery County Jail on charges of Failure to Provide Proper Sustenance (failure to feed and water horses), a misdemeanor under New York’s Agricultural and Markets Law. 7. Plaintiff Barbara Davis is 50 years old and resides in Montgomery County. On May 2, 2001, Ms. Davis was arrested on a Family Court civil warrant, and booked into the Montgomery County Jail. 8. Plaintiff Andrew Rivera is 47 years old and resides in Montgomery County. On June 1, 2004, Mr. Rivera was arrested for aggravated harassment in the second degree, a misdemeanor. Presently, Mr. Rivera is the subject of an o rder of prot ection to have no contact with another
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individual. 9. Defendant County of Montgomery (the “County”) is a county government organized and existing under the laws of the State of New York. At all times relevant hereto, the County, acting through its Sheriff’s Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Montgomery County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including tho se working in the Montgomery County Jail. In addition, at all relevant times, the County was responsible for enforcing the rules of the Montgomery County Jail, and for ensuring that Sheriff’s Department personnel employed in the Jail obeyed the Constitution and laws of the United States and of the State of New York. 10. Defendant Montgomery County Sheriff’s Department (the “Sheriff’s Department”) is a County Sheriff’s Department organized and existing under the laws of the State of New York. At all times relevant hereto, the Sheriff’s Department was responsible for operating, organizing, overseeing and administering the Mont gomery County Jail (“MCJ”). At all times relevant hereto, Defendant Sheriff’s Department, together with the County of Mont gomery, was responsible for the polices, practices, supervision, implementation and conduct of all matters pert aining to the MCJ, and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the MCJ. In addition, at all times relevant hereto, Defendant Sheriff’s Department, together with the County of Mo ntgomery, was responsible for enforcing the rules of the Montgomery County Jail, and for ensuring that Sheriff’s Department personnel employed in the MCJ obeyed the Constitution and laws of the United States and of the State of New York.
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11. Defendant Michael Amato (“Sheriff Amato”) is the duly elected Sheriff of Montgomery County, and, as such, is a policy maker and/or implemented an unconstitutional policy with respect to the treatment of pre-trial and other detainees over which the MCJ exercises custodial or other control. Sheriff Amato’s principal place of business is the Montgomery Count y Public Safety Building, 200 Clark Drive, P. O. Box 432, Fultonville, NY 12072. Sheriff Amato is made a Defendant in this action in his individual and official capacities. 12. Defendant Jeffrey Smith (“Undersheriff Smith”) is the duly appointed Undersheriff of Montgomery County, and, as such, is a policy maker and/or implemented an unconstitutional policy with respect to the treatment of pre-trial and other detainees over which the MCJ exercises custodial or other control. Upon information and belief, Undersheriff Smith was appointed to be Undersheriff within the past five months. Undersheriff Smith’s principal place of business is the Montgomery County Public Safety Building, 200 Clark Drive, P. O. Box 432, Fultonville, NY 12072. Undersheriff Smith is made a Defendant in this action in both his individual and official capacities. 13. Defendant Kevin Snell (“Kevin Snell”) was the duly appointed Undersheriff of Montgomery County until, upon information and belief, December 31, 2002, and, as such, is a policy maker and/or implemented an unconstitutional policy with respect to the treatment of pre-trial and other detainees over which the MCJ exercises custodial or other control. Kevin Snell’s principal place of business is the Montgomery County Office of District Attorney, Montgomery County Courthouse, 58 Broadway, Fonda, NY 12068. Kevin Snell is made a Defendant in this action in his individual and official capacities. 14. Defendant John Pecora (“JailAdministrator Pecora”) is the dulyappointed Jail Administrator of the Montgomery Count y Sheriff’s Department and is the officer in charge of the operation o f the
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Montgomery County Jail. As such, Jail Administrator Pecora is a policy maker and/or implemented an unconstitutional policy with respect to the treatment of pre-trial and other detainees over which the MCJ exercises custo dial or other control. Jail Administrator Pecora’s principal place of business is the Montgomery County Public Safety Building, 200 Clark Drive, P. O. Box 432, Fultonville, NY 12072. Jail Administrator Pecora is made a Defendant in this action in his individual and official capacities. 15. Defendant Sue Buddles (“Lieutenant Buddles”) is a duly appointed Lieutenant in the Montgomery County Sheriff’s Department and is, upon information and belief, the administrative officer for the Montgomery County Jail. Lieutenant Buddles is second in command t o Jail Administrator Pecora in responsibility for jail operations. As such, Lieutenant Buddles is a policy maker and/or implemented an unconstitutional policy with respect to t he treatment of pre-trial and other detainees over which the MCJ exercises custodial or other control. Lieutenant Buddles’ principal place of business is the Montgomery County Sheriff’s Department, 200 Clark Drive, P. O. Box 432, Fultonville, NY 12072. Lieutenant Buddles is made a Defendant in this action in both her individual and official capacities. 16. Collectively, Sheriff Amato, Undersheriff Smith, Kevin Snell, Jail Administrat or Pecora and Lieutenant Buddles will be referred to as the “Policy Making Defendants.”
CLASS ACTION ALLEGATIONS 17. Plaintiffs bring this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals who were charged with misdemeanors or minor crimes and were strip searched upon their ent ry into the Montgomery County Jail.
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18. The class that Plaintiffs seek to represent is defined as follows:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were or will be strip searched upon their ent ry into the Montgomery County Jail pursuant t o the policy, custom and practice of the Montgomery County Sheriff’s Department and the County of Mo ntgomery. The class period co mmences on April 29, 2000, and extends to the date on which the Montgomery County Sheriff’s Department and/or the County of Montgomery are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and cust om of conducting strip searches absent reasonable suspicion. Specifically excluded from the proposed class are Defendants, and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
19. This action has been brought and may properly be maintained as a class action under Federal
law and satisfies the numerosity, commonality, typicality and adequacy requirements for
maintaining a class action under Fed. R. Civ. P. 23(a).
20. The members of the class are so numerous as to render joinder impracticable. Upon
information and belief, there are scores of people arrested for misdemeanors and violations who are
placed into the custody of the Montgomery County Jail every month – all whom are members of the
proposed class. Upon information and belief, the size of the proposed class totals at least 2,000
individuals, some of whom have had their civil rights violated on multiple occasions.
21. Upon information and belief, joinder of all of these individuals is impracticable because of
the large number of class members and the fact that class members are likely dispersed over a large
geographical area, with some members presently residing outside of Mo ntgomer y County and this
Judicial District. Furthermore, upon information and belief, many members of the class are low-
income persons, may not speak English, and likely would have great difficulty in pursuing t heir
rights individually.
22. Common questions of law and fact exist as to all members of t he Class, in that they all had
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their right to be free from unreasonable searches violated by Defendants’ conducting strip searches absent particularized suspicion. All members of the class were charged with misdemeanors or violations when placed into the custody of the Montgomery County Jail, and all were illegally strip searched in violation of the clearly established law in this judicial circuit. 23. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaint iffs and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members. 24. The representative Plaintiffs have the requisite personal interest in the outcome ofthis action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class. 25. Plaintiffs have retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. The named Plaintiffs are being represented by Elmer Robert Keach, III; Bruce Menken and Jason Rozger of Berenbaum Menken Ben-Asher & Bierman, LLP; and Gary E. Mason and Charles Schneider of The Mason Law Firm, PLLC. Mr. Keach is an experienced civil rights and class action attorney who has litigated a wide variety of civil rights actions before this Court, and has litigated class action lawsuits in state and federal courts in seven states. Mr. Keach has successfully litigated strip search cases against the Troy City Police Department and the Schenectady City School District, and has previously litigated several other cases relating to police and corrections misconduct before this Judicial District. 26. Bruce Menken and Jason Rozger are both experienced civil rights attorneys from New York City, having litigated scores of civil rights cases against a number of Defendants, including one prison brutality case presently pending in this District. Mr. Menken and Mr. Rozger have
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successfully represented many victims of illegal strip searches, including several who opted out of the recent class action litigation against the City of New York. 27. Gary E. Maso n is one of this country’s premier class action attorneys, with offices in Washingto n, DC. Mr. Mason has successfully litigated class actions against Fortune 500 companies in both state and federal court in over a dozen jurisdictions, including gaining a settlement for a class of purchasers of defective polybutylene pipe of $ 950 million dollars. Mr. Mason has served as lead or co-counsel in numerous high profile class actions, including In Re The Exxon Valdez, In Re Diet Drugs Product Liability Litigation and In Re Synthetic Stucco (EIFS) Product Liability Litigation. In addition to his extensive experience as a class action and environmental lawyer, Charles Schneider of the Mason Law Firm is a former trial attorney with the U.S. Department of Justice’s Civil Rights Division and has successfully litigated a series of cases involving corrections misconduct. 28. All three firms representing the Plaintiffs in this action are presently prosecuting a similar class action before this Court, for which a preliminary settlement has been approved; Kahler v. County of Rensselaer, et. al., No. 02-CV-1324 (TJM/DRH). 29. In short, Plaintiffs’ co unsel has the resources, expertise and experience to successfully prosecute this act ion against Montgomery County, the Montgomery County Sheriff’s Department, and the Policy Making Defendants. Counsel for Plaint iffs knows of no conflicts among members of the class, or between counsel and members of the class. 30. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs seek class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to t he same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and
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placed into the custody of the Montgomery County Jail. In short, the County of Montgomery, the Montgomery County Sheriff’s Department and the Policy Making Defendants acted on grounds generally applicable to all class members. 31. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3). 32. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the Montgomery County Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period. 33. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to t he federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
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34. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for at least the past five years, with the practice being declared unconstitutional in this judicial circuit in 1986. 35. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4). 36. Finally, Plaintiffs seek the certification of a limited fund class action pursuant to Fed. R. Civ. P. 23(b)(1)(B) for the purposes of assessing punitive damages against the Po licy Making Defendants. The prohibition against strip searching individuals charged with misdemeanors and other minor crimes has been established in this judicial circuit for over ten years, and with good reason: Subjecting someone to the indignity of a strip search is only appropriate where there is so me cause to believe that the individual possesses weapons or contraband. 37. This action is the textbook example of when punitive damages should be imposed on those in charge of a local correctional facility. The Policy Making Defendants, however, have limited personal assets; assets that would quickly be exhausted upon the imposition of punitive damages in only a few cases. As all members of the proposed class deserve to equally share in the assets of the Policy Making Defendants, the certification of a limited fund punitive damages class is appropriate, with the Court, after verdict, to establish this limited fund from the liquidated assets of the Policy Making Defendants and distribute the fund to all members of the class.
FACTS Facts Applicable to the Class Generally 38. The Fourth Amendment of the United Stat es Constitution prohibits state officials, such as
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the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 39. Upon information and belief, the County of Montgomery, the Montgomery County Sheriff’s Department and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Montgomery County Jail, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. 40. Upon information and belief, the County of Montgomery, the Montgomery County Sheriff’s Department and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Montgomery County Jail, regardless of the individual characteristics or the nature of their charged crime. 41. The County of Montgomery, the Montgomery County Sheriff’s Department, and the Policy Making Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. This judicial circuit has stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion, with this principle being clearly established in 1986 by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986). 42. The Defendants’ written and/or de facto policy, practice and custo m mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
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43. Upon information and belief, not only is the policy of strip searching illegal, but the manner in which individuals are searched is also impermissible. For example, upon information and belief, individuals are strip searched in the presence of corrections officers, jail employees and arrestees of the opposite gender. The are also strip searched and forced to shower in a room with a clear window, where anyone, regardless of gender or classification, can look inside. 44. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest. 45. Upon information and belief, the County of Montgomery, the Montgomery County Sheriff’s Department and the Policy Making Defendants have promulgated, implemented, enforced, and/or failed to rectify a policy, practice or custom of strip searching all individuals placed into the custody of the Montgomery County Jail without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to t he enforcement of the policy, practice and custom of routine strip searches. 46. Pursuant to this written and/or de facto policy, each member of the Class, including the named Plaintiffs, were victims of a routine strip search upon their entry into the Montgomery County Jail. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. 47. The strip searches in question largely occurred in the shower area ofthe MontgomeryCounty Jail booking room. Upon information and belief, individuals are made to enter this shower room,
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and there are strip searched and made to t ake a shower while being watched by a Corrections Officer. 48. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches – each member of the class, including the named Plaintiffs – have suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs 49. Mr. Marriott’s experience is representative. On or about September 13, 2001, Paul Marriott was charged with Failure to Provide Proper Sustenance, a misdemeanor under New York’s Agriculture and Markets Law. The allegations underlying Mr. Marriott’s criminal charges were that he failed to properly feed and water five horses. The charges pending against Mr. Marriott were resolved with an adjournment in contemplation of dismissal. Mr. Marriott is presently 38 years old. 50. At appro ximately 8:00 PM on September 13, 2001, Mr. Marriott was transported to the Montgomery County Jail. Soon thereafter, Mr. Marriott was moved into the shower area in the MCJ booking room. Mr. Marriott was ordered to remove his clothing and take a shower while a Corrections Officer watched. 51. The Corrections Officer then entered the shower room while Mr. Marriott was in a state of complete undress, inspected his clothing, and then administered a strip search. The Officer forced Mr. Marriott to bend over and spread the lobes of his buttocks for a visual examination. Mr. Marriott was then issued jail clothing, namely, an orange jumpsuit. 52. Mr. Marriott was bailed out of the Montgomery County Jail the following morning, and his charges were disposed of with an Adjournment in Contemplation of Dismissal.
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53. On this particular occasion, there was no reasonable suspicion to believe that Mr. Marriott was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Marriott that could have given rise to the requisite reasonable suspicion. Moreover, because Mr. Marriott had already been in the custody of Deputies from the Montgomery Count y Sheriff’s Department, the Corrections Officers in question knew or should have known that Mr. Marriott had already been subjected to a search incident to arrest t hat would have revealed any weapons or contraband. 54. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Mr. Marriott has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish. 55. Ms. Davis’ experience is also representative. On May 2nd, 2001, she was arrested at her home by Amsterdam Police officers after she missed a court date in Family Court. 56. Upon information and belief, she was not arrested for a criminal offense, but on a civil Family Court warrant. 57. Ms. Davis was taken to Family Court, where the judge told her that she would not be released until she paid $2000.00 of the child support that she owed. 58. Ms. Davis was taken from Family Court to the Montgomery County Jail. After arriving, and being asked questions by the desk officer, she was taken to a room with a shower. 59. A female corrections officer ordered her to remove all of her clothing, and told her to take a shower. That officer watched Ms. Davis take the shower. 60. After Ms. Davis showered, and while she was completely naked, t he officer ordered her to lift up her a rms, open her mo uth, and to bend over in front of the officer and spread the lobes of her buttocks. Ms. Davis complied with the officer’s orders.
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61. Ms. Davis was released from the MCJ three days later when her brother posted the money for her. 62. On this particular occasion, there was no reasonable suspicion to believe that Ms. Davis was concealing a weapon or other contraband. Indeed, no inquiry was made of Ms. Davis that could have given rise to the requisite reasonable suspicion. Moreover, because Ms. Davis had already been in the custo dy of officers of the Amst erdam Police Department, the Corrections Officers in question knew or should have known that Ms. Davis had alreadybeen subjected to a search incident to arrest that wo uld have revealed any weapons or contraband. 63. As a direct and pro ximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Ms. Davis has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish. 64. Andy Rivera’s experience is also representative. On June 1, 2004, Mr. Rivera was brought to the Montgomery County Jail as a pre-trial detainee, charged with aggravated harassment in the second degree, a misdemeanor. 65. After he was fingerprinted, Mr. Rivera was taken by a corrections officer to a ro om with a shower. The corrections officer ordered Mr. Rivera to remove all of his clothing, including his underwear. The corrections officer watched Mr. Rivera remove his underwear, examined his naked body, and told him to take a shower. 66. Mr. Rivera obeyed the orders of the corrections officer to disrobe. The corrections officer specifically ordered him to remove his underpants. 67. Following the aforementioned strip search, Mr. Rivera put on a jail uniform. He was not allowed to keep any of the clothes he had been wearing.
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68. On this particular occasion, there was no reasonable suspicion to believe that Mr. Rivera was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Rivera that could have given rise to the requisite reasonable suspicion, and the MCJ officers knew or should have known that he had been the subject of a search incident to arrest that would have revealed any contraband. 69. Without stating or implying that Mr. Rivera is a habitual criminal, Mr. Rivera has been arrested on a number of occasions in the past, both in Amsterdam, New York and in New York City. Additionally, there is an order of protection in place between Mr. Rivera and the alleged victim of his crime that will be in place until 2007. Consequently, there is a possibility beyond mere speculation that Mr. Rivera will be rearrested in the future, making it likely that he will again be subjected to the same illegal strip search procedure. 70. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Mr. Rivera has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivations Under of Color of State Law --
71. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 69. 72. The Fourth Amendment of the United States Constitution protects citizens from
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unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 73. The actions of Defendants detailed above violated Plaintiffs’ rights under the United States Constitution. Simply put, it was not objectively reasonable for Montgomery County Corrections Officers to strip search Plaintiff and class members based on their arrests for misdemeanor/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct Montgomery County Corrections Officers to conduct such searches. 74. These strip searches were conducted pursuant to the policy, customor practiceof the County of Montgomery and the Montgomery County Sheriff’s Department. As such, the County of Montgomery and the Montgomery County Sheriff’s Department are directly liable for the damages of the named Plaintiff and members of the Class. 75. Upon information and belief, Sheriff Amato, Undersheriff Smith, Kevin Snell, Jail Administrator Pecora and Lieutenant Buddles are responsible for establishing the policies and procedures to be utilized in the operation of the Montgomery County Jail, and are responsible for the implementation of the strip search po licy questioned in this lawsuit. As such, Amato, Smith, Snell, Pecora and Buddles are each individually responsible for the damages of the named Plaintiff and members of the Class. 76. Sheriff Amato, Undersheriff Smith, Kevin Snell, Jail Administrator Pecora and Lieutenant Buddles knew that the MCJ’s strip search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and members of the Class of their Constitutional rights. 77. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given
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that their actions were undertaken under color of state law. 78. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs have been irreparably injured.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
79. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 78. 80. The policy, custom and practice of the Montgomery County Sheriff’s Department, the Count y of Montgomery and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Montgomery County Jail without any particularized suspicion t hat the individuals in question have either contraband or weapons. 81. Plaintiffs and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Montgomery and the Montgomery County Sheriff’s Department to be unconstitutional.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction –
82. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 81. 83. The policy, custom and practice of the Montgomery County Sheriff’s Department, the County of Montgomery and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the
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Montgomery County Jail without any particularized suspicion that the individuals in question have either contraband or weapons. 84. Upon information and belief, this policy is currently in place at the Montgomery County Jail, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs. 85. The continuing patt ern of st rip searching individuals charged with minor crimes (or no crime at all) will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law. 86. Plaintiffs demand that the County of Montgomery, the Montgomery County Sheriff’s Department, the Policy Making Defendants and Montgomery County Corrections Officers immediately desist from strip searching individuals placed into the custody of the Montgomery County Jail absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much.
AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS COUNTY OF MONTGOMERY, THE MONTGOMERY COUNTY SHERIFF’S DEPARTMENT, MICHAEL AMATO, JEFFREY SMITH, KEVIN SNELL, JOHN PECORA AND SUE
BUDDLES -- Deliberate Indifference to Training and Supervision -87. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 86. 88. The above-named Defendants were deliberately indifferent in the training and supervision of the individual corrections officers employed at the Montgomery County Jail, in that Defendants were deliberatelyindifferent in discharging their duty to make sure that any strip searches conducted
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at the Montgomery County Jail were performed only in circumstances permitted by the United Stat es Constitution. 89. The above-named Defendants knew, or should have known, that unconstitutional strip searches were, or were likely to be, taking place in the Montgomery County Jail. 90. Despite this knowledge, the above-named Defendants did not act to stop t hese unconstitutional practices from occurring. 91. This conduct on the part of the above-named Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law. 92. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs have been irreparably injured.
DEMAND FOR PUNITIVE DAMAGES 93. The actions of the Individual Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search po licy even though they know for a fact that their actions are unco nstitutional. Consequently, an award of punitive damages is necessary to punish the Policy Making Defendants.
DEMAND FOR TRIAL BY JURY 94. The Plaintiffs hereby demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of a class of others similarly situated, request that this Honorable Court grant them the following relief: 1) An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23.
21

2) A judgment against all Defendants, jointly and severally on Plaintiff’s First Cause of Action detailed herein, awarding Compensatory Damages to the named Plaintiff and each member of the proposed class. Plaintiffs request, at a minimum, that they and the members of the class be awarded $200,000 for each time they were illegally strip searched by Defendants. With the size of the Class estimated to be 2,000 individuals, the Plaintiffs request that the total judgment awarded to t he Class be no less than $ 400,000,000.00. 3) A judgment against Defendant Michael Amato on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages. 3) A judgment against Defendant Jeffrey Smith on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages. 4) A judgment against Defendant Kevin Snell on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages. 5) A judgment against Defendant John Pecora on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages. 6) A judgment against Defendant Sue Buddles on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages. 7) A declaratory judgment against all Defendants declaring the County of Montgomery and the Montgomery County Sheriff’s Department’s policy, practice and custom of strip and visual cavity searching all detainees entering the Montgomery Co unty Jail, regardless of the crime charged or suspicion of contraband, to be unconstitutional and improper. 8) A preliminary and permanent injunction enjoining Defendants from continuing to strip and visual cavity search individuals charged with misdemeanors, violations, violations of probation or parole,
22

traffic infractions or other minor crimes, or held on civil mat ters absent particularized, reasonable

suspicion that the arrestee subjected to the search is concealing weapons or other contraband.

9) A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988;

Respectfully submitted by:

Dated: September 10, 2004 Albany, NY

______________________________

Jason J. Rozger, Esq.

USDC, NDNY Bar Roll Number 105874

Bruce E. Menken, Esq.

USDC, NDNY Bar Roll Number 104942

BERANBAUM MENKEN

BEN-ASHER & BIERMAN LLP

80 Pine Street, 32nd Floor

New York, NY 10005

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail:

jrozger@bmbblaw.com

Elmer Robert Keach, III, Esq.

USDC, NDNY Bar Roll Number 601537

One Steuben Place

Albany, NY 12207

Telephone:

518.434.1718

Telecopier:

518.434.1717

Electronic Mail: bobkeach@keachlaw.com

Gary E. Mason, Esq.

(Member of the New York Bar, Motion for

Permanent Admission Pending)

Charles Schneider, Esq.

THE MASON LAW FIRM, PLLC 1225 19th Street, NW, Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail:

gmason@masonlawdc.com

ATTORNEYS FORPLAINTIFFS ANDPROPOSED

CLASS

23

 
 Case 0:99-cv-03126-DRH Document 56-2 Filed 03/01/2007 Page 1 of 4
EXHIBIT A

Case 0:99-cv-03126-DRH Document 56-2 Filed 03/01/2007 Page 2 of 4

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOTT, BARBARA DAVIS, and ANDY RIVERA, on behalf of themselves and a certified class of others similarly situated,
Plaintiffs,

No. 03-CV-0531 (DNH/DEP)

THE COUNTY OF MONTGOMERY, et. a!.,
Defendants.

PLAN OF DISTRIBUTION Defendants County of Montgomery, Michael Amato, Jeffrey Smith, Kevin Snell, Sue Buddies and John Pecora (the "Defendants") have agreed to settle this class action by, among other things, paying $2.0 million into a Settlement Fund for the benefit of class members and the named plaintiffs in this litigation. Subject to Court approval, Class Counsel intend to distribute the Settlement Fund as set forth below. As more fully set forth in the Settlement Agreement and the Class Notices, class members have the right to submit to the Court objections for its consideration to the Settlement and/or this Plan of Distribution. Attorneys' Fees, Costs. Administrative Expenses and Incentive Awards Pursuant to the Settlement Agreement and applicable law, Class Counsel intend to seek from the Settlement Fund reimbursement for the costs advanced in the prosecution of this litigation and an award of attorney's fees. Plaintiffs' counsel will apply to the

LAW OFFICES OF ELMER ROBERT 1\:EACH, III
A PROFESSIONAL CORPORATION
104·0 RlVEHFnONT CENTEH • EO. BOX 70 • AMSTERDAM, NY 12010 TELEPHONE 518-434-1718 • TELECOP!EH 51H-770-15GB ELECTHONIC MAlL: IHJhkt'<I<'I\({Dl.;.e;lclll<i\' f'il-llt.('()fll
II

Case 0:99-cv-03126-DRH Document 56-2 Filed 03/01/2007 Page 3 of 4

Court for an award of costs and attorney's fees of no more than thirty percent (30 %) of the settlement fund, or $600,000. Additionally, Class Counsel proposes to allocate up to $35,000 of the settlement fund to pay incentive awards to class representatives Paul Marriott ($12,500), Barbara Davis ($15,000) and Andy Rivera ($7,500), who Class Counsel maintain provided assistance to them during the prosecution of this litigation. Deducting for estimated administrative expenses of $65,000 and for attorney's fees, costs and incentive awards, class counsel estimates that there will be approximately $1,300,000 in the settlement fund for distribution to class members. Distribution to Class Members
Class Counsel proposes that approximately $1.3 million of the settlement fund be allocated to pay claims by class members, and that each class member who files a valid claim will receive their pro rata share of the settlement fund when the fund is distributed after final approval. Based on data provided by Montgomery County when the initial notice to class members of the certification of this action was mailed in September, 2005, Class Counsel estimates the class size here to be approximately 1,650 individuals. Individuals who were admitted to the Montgomery County Jail on more than one occasion will only be allowed to file one claim against the settlement fund. When considering the claims rates achieved in similar settlements, Class Counsel estimates that each member of the settlement class that files a claim will receive between $2,000 and $3,000 as a settlement payment. Court Approval
At the time of the final approval hearing, Class Counsel will detail to the Court the final distribution to be made to settlement claimants and the amount to be paid per

LAW OFFICES OF ELMEH EOBERT KEACH, III

A PROFESSIONAL CORPOHATION

2

1040 HIVEHFHONT CENTEH • P. 0. BOX 70 • AMSTEHDAM, NY l~~ow

TELEPHONE 518-434·1718 • TELECOPIETI C>IB-770·155B ELECTHONTC MATL IHlhkC'HI·It(;i)i..;:{'<-)(•ltl;.l\\"/'i t'lil.('()Jl\

Case 0:99-cv-03126-DRH Document 56-2 Filed 03/01/2007 Page 4 of 4

claim. Subject to the Court's approval, all proceeds to class members will then be paid
based on the final distribution amounts provided at the time of the final approval hearing.
J1 Respectfully SuI]?mit/te,d~-b--y.:
/

Dated: August 31, 2006 Amsterdam, New York

Elmer R' bert K ch, , squire
LAW OFFICE OF EIMER ROBERT KEACH, III, PC 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com
LEAD COUNSEL FOR PLAINTIFFS

LAW OFFrCES OF ELJviEH ROBEH'r KEACH, III

A PHOFESSIONc\L CO!lPOHATION

3

1040 HTVERFHONT CENTEH • P. 0. BOX 70 • AHSTEHDAM, NY 12010

TELEPHONE 518-434-1718 • TELECOPJEH 51B-770-1G58

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_limyIIlIlIad !battllstn 10 be .rr.oliI>GI

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eIIqlJ! • I!lisd=l:IiIQots or >ioJaji
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{lllll# lIlimb!.;., oftIvI

1'izIDIUf IIIId all m$l.llbem of !he cIiIsi • ~~ .mms md of I)~'

ot~. lryjl ~ -

?la;=r.f=:e TlllI hv!II!lli1l'fmd

!Ifthe bIt'l!l! ,,*..t

by Il1t I'lus DlCIIllICIJ,

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iIIIercIJ .f~ l'IaiDtiff'bac 110 inta\::It!llflataadvem til

old!!: 111_ CJaq,

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laorF_ PllC. Mr. Keaoh I.t: au ~ cii.n ~ I1lII.c;l1S$ sctlo!I:Il!m!.IIIYwho

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and sd-Crady

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1I\IIIIl>C' ol JlahdaD'\ ~ OIlS P • 1mmlJj~ c:a5e prn:nd,. /XIIdilIi ill !his

Di:drict Mr. ~ and Mr, lI.ozpr ~ "..,~ ~d m.my l'iDIIIII! of

I ! 1I1egat.stdp ~., 1nolurI.'ns.!\'\\IIIl wIuI o~ alit ~fjh.cl r=cm ~ a_lilip!OA

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r W~ ... in rx:. Uz. ~ bultUOnm~litipJed ""'" UIi_ .past

~ S1l(I alIIli'~OS in bCIh ;tlIo wi

~ Wo.er II. ~j~Q!L.S;

inc~ piaitIg a. ~CIlt llIr a eLus Il!pjwbzser.slddd.llO\l~ p61~e!l!! pipe gf

,4 w.; ~ $ 'XI million dDIlm. N>. M1ol0ll bu

1$ Ot tcH:01III&elln llJlIlW1:l"'-

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S~ ~wilh oiltleMosoIl Law Pirnt is alhrnle trial

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wen: ftbjecc !II !hemme, policy ~nli: lite mepl. ~ fII~ ofi.n!li~ dwp4

~ ~ ~ ~;Y •wi!lt

Of mi= <tiJzw I'Ja....t 1fae WJiody of the

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;as, ClI_on qu.:sti0ll:r of Il.w ~ facI ~ as 10 ;l\ m<I!Ilhen of t/l$ Cl1lS_,

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the CIIII'IIIlllll 8Ild

p~ 1jlI~ of \IIb.:/hor!hl' ~d_ ~ IlIII/at .f~ poJU:Y or.mp , ~;l\ l.ndlvidu!l~ obaried wiIh lIIkdbfetll0ll1 ~•milUlf ~ \1114 WIlIIIIitIeil ta

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m.. D.~·1IaJR!ll. m!.arlcm of !lie dvil ;Iiihi': rflhommds of indIv!du:Ia, f>\'1!~

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a •. pIU'lIl2!>1lo Fed. ~ 'I. 23('o)(I)Q3) !I:ff tbc p~ of.....mlll: p~e ~.

I opin.st • lolky MJlIdng DlBlndau$. ne Jil'Q/liIJiIiI!1 ~ sllip soar::lJla::

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~ ~ QlI 111#l1li in· ...se o£ a IocJ.J

flI;/Uty. no Po&y MItiDJ

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~ ~ l/aYe lbUt4 ~ _( I a1!S<I!S IIoat wo.uld ~ckly be

~ IIp(IIl r!i: iIlqJosirjga o€plmiU'lll ~ in PIII.Y II\IIv c.-. h all lIl!Illbcns

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lit ie ~ era.. dcf<:rvc 10 1lIl.\IaIly ~ in 1/u! _ a{ tb&I PolicY M'1tiDJ I
J)~ tilt =mcailQll o€a Ii:tnittd fimd puDltivlr ~ 1110$1 is ~ wkb

till: CollI!" • Vt:rdiet,. to esIIldillb ~ ~ AlnI41- !he U'l.lli~ ~ of !he
6Ws: I
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oflklall. II\I:L. lIS lIbI ~1Jq' Making lJ~ fa •~ =tim lIlI4 t:!Ic: ClllmtiOl!t

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iwfn ~ to ~~lIIattl/Jl art!SlelllJ CllI1lln!1ng

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. ~ C'.cIImy SfIcrlft'I .DepIIIIIl)l!IIT 1II1 the P~1ley M:OOnr D~ luJIe
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iIIon/QSH

or ~ iIldmdllllr 'folia entO\'!be Mbly IIle

Co\lIll)' !aJ., rsrdJ'" at' the

1I11~ o!lI!cif~ c:tIl/llI JII!d \IIIIbout tb"J>!=~ lIfmIOIIIlIlt ~ to II. . .

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34. l1pml iutiJlI1I>Iion' ad &oliaf; the oswy at'

the

MOII~ c:oam.v Sheriffs tlopmmt:nl an<! Chi lI'oliI:y Mak.iIIIf De.6!I1l181!t1 law

,

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insIiInted l w:rJlIe!t u410l' tief<t.ll~ poIier. tll.itllm orr~ of mKlllIIIi'!$ 1Ii.Iuzlllad.y

mil)" _ _ ~ ~ ottb. w:,iaI:d and ~ call1lllS) QlI aU lndbi4uds

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wllO Irl!I!r 1Ile ~y of llIe M~ Cc~1f ~ail. J:O~ or the iIIdividu&!

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Gltat.lllllldlda or !ilIIIIJIIJrc altboir cha:r&<d adm.c. Fa!,[PlIlJIOSe! of!llil ConIpIalllr, SU\p

ur.mill .. 1IId.Usualeavtt;rSSlllhes iPcoUd:wl¥l'Ilfnld 10

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3$. 'IbII Cooaty or Man~. the ~onISUJI'lI'Y 0>un\Y s=irs

~Ml/lfIlcl'oIieyJd'aI:iIUID~l:mIW~the:r_!llltm~tIIII\!Ce

• penni! ~ 0[ it ~ or JO'liI<O of ~adueaing ,flip ~ With01ll

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by Wekv.DelUGiF.24'm(UCU:. 1986').
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iIIC" COII!CtioI!; otI!cc:n,jsi1.o~ 1IIl!lf(lf~Of~ gppoUt; PIiII'Il, Tbe:;r

mIp ~ 8lIl lllrCf411> sbwoc ill L 1'lI= \III~ ~ cI=~. ~ ~.

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3r, ~I. luaplcian ro ~ a ~ ~ m¥III;aIy ~tc: _

."""en! 1IIe~ ~es

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suob IS utu:t. of th<o o.tillJe

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~ CoIIIIly Bbcrilrs ~ and me ~ ~ D,Ii:rJd;.mfa 11m
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pIIIlIlaJpud, imp~ ~ ~O( Mad 1O, ~ .. pclic!y. ~e 0( 0\!SI0m
of. '~!Il ~&~ mill til; ellOlt at tho KoWp!DIlIIY ~IIIIIY1iiI

or 'fItI!IDlU UO' ~ cf~JIablI 51lSjlieioll. or ~<:<:d Mpi'dQII ~ &Ori. nI!i

wrilWt lIDdfor titJfJd4 poliey made rlr:: Illip ;~ af ~ ~ ~

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praeliocuti euwn ofl't2Ul'ineattip ~

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t hIIo b ~ C4U111}'raiL Tbesr semlwS ~ ~red""!baat iDq\lIiyinto <:II' I
dllblili!lJMlll of:eascmsblll upieion" 11M in lie! IIQ( s~ by mso~

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M~ COtmtr I'I1lwo1ciag _ . Upo&t inmIJ,,";<llI oM ~1Il: iudi'lld!ial$ ~ I
rue lBIe Ie lIIIICr!his .....:mom. llIIlIQV, choir ~loOri~ tnd II Wwer, ~ IfIc vihile

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~_dIed ~ ; \VIndDw by a Co~s 0$:",• .lilllj,rdilm are dlMal\bject

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a CDtrO;&m O~;III' C/l0Id lhII .rlloTIer 1Ik>:n md

au ~ lI«ilIfut;I. Upcm in'b"Q_ till! ~=: the ~ llNc. tad Ibl:

~1fIV QIlW _ . it W\ddnlIlaib.!ichI of1llo!"';'" bcI jWI M:a.

of 420 iii I dll1CltIud ~Ic ...ul! ~ WlIl.....1iII fIIip ~ l:lIlIIluded
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r cat:b: _ _ o£ lie _, ~iag u. llfnleoi l'IIir,IJltIf-II1II JIlI1'cncl. or IYilI cUflllr
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%001. !'lUI !Jani<ltl wzs ~d 'I\'ith 1'~ 10 jl't~ldII Proper ~ a
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~ IIIJdllr New Ycrlc's AJlrioulmre 2Ild ~m l.ay(. TIle IIlle!lallolU
f1cr"I
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~ u fie M.o.DIi:OIIIetr COUl#y Jail. Soon ~., Mr,l\iLVliat'l \Its IIIOWd

inb;18Je~_1n "'MCJ

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llIct&iIlg IlIClIIIb ;l rIIoIOI!;' w!We a CtJdIi_

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------- x PAUL MARRIOT, ET AL,

Civil Action No. 03-CV-0531

- against -

Plaintiffs,

STATEMENT OF MATERIAL FACTS

THE COUNTY OF MONTGOMERY, ET AL,
Defendants. ----------------------------------------- x

DNH/DEP

Defendants, through their attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, as and for a Statement of Material Facts Pursuant to Local Rule 7.1(b) state as follows:
1. Plaintiff commenced this action against the County of Montgomery, the Montgomery County Sheriff’s Department and the individually named defendants, by filing and serving a class action complaint dated April 29, 2003 (see Exhibit N of Hyland Affidavit).
2. Plaintiff’s complaint alleges that the Montgomery County Correctional Facility has an unconstitutional strip/cavity search policy whereby all individuals charged with misdemeanors, violations or other minor crimes are strip/cavity searched upon admission (see Exhibit N of Hyland Affidavit).
3. The MCCF does not have a policy or practice of performing strip/cavity searches on all misdemeanor arrestees.
4. Reasonable suspicion that the individual has contraband is required in order for a strip/cavity search to be performed.

38490.1

5. Individuals admitted into the MCCF go through a Change Out procedure, whereby the individual disrobes and showers in the presence of an officer, of the same sex, before changing into a jail uniform (pg. 17-18 Exhibit C to Hyland Affidavit; see pg. 39-40 Exhibit M to Rozger Affidavit).
6. No search targeting the breasts, genitals and anus occurs during the Change Out.

Dated:

August 5, 2004 Albany, New York

Respectfully submitted by:

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

S/ Thomas W. Hyland, Bar Roll No. 13559 Joseph L. Francoeur, Bar Roll No. 511929 150 East 42nd Street New York, New York 10017 Telephone: (212) 490-3000 Fax: (212) 490-3038
Theresa B. Marangas, Bar Roll No. 511376 One Steuben Place Albany, New York 12207 Telephone: (518) 449-8893 Fax: (518) 465-2548 File: 01224.00372

ATTORNEYS FOR DEFENDANTS

38490.1

 
 IN THE UNITED STATES DISTRICT COURT

,I FOR THE NORTHERN DISTRICT OF ~~~b~;v, I COURT - N.D. OF N.Y. r--F-·-I--L-·E--·D· .,

PAUL MARRIOTT,
v.

Plaintiff,

f DEC 2 4 2003 ;

. . · · · - - - _ - . 1 1I

- - A:r.,..__.~ {7rC;LG'Q:

Civil

~~-j.i"~'

5:03-CV-0531 (DNH/DEP)

COUNTY OF MONTGOMERY,

Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:

KEACH LAW FIRM One Steuben Place Albany, NY 12207

ELMER R. KEACH III, ESQ.

BERANBAUM, MENKEN LAW FIRM 3 New York Plaza New York, New York 10004

JASON J. ROZGER, ESQ.

FOR DEFENDANT:

WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
150 East 42nd Street
New York, New York 10017-5639

JOSEPH L. FRANCOEUR, ESQ. THERESA MARANGAS, ESQ.

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER

Currently pending before the court in this civil rights suit, which is

styled as a class action though no class certification motion has yet been

made, is an application by the plaintiff for an order compelling discovery.
In his motion, plaintiff seeks information concerning pretrial detainees held
at the Montgomery County Jail on misdemeanor or less severe charges from April of 2000 to the present. 1 Defendants vigorously oppose that
request, asserting both lack of relevance to the claims and defenses in the
action and the privacy concerns associated with the requested
information, and urge the court to instead consider alternative means for
allowing the plaintiff to contact potential witnesses or class members
including to allow defendants' counsel to initiate the contact and inquire
whether the detainees are willing to participate in some fashion in this
The precise text of the request under consideration seeks [a]1I booking sheets, inmate admission records, suicide screening forms, classification sheets, personal appearance forms, property sheets, documents memorializing conversations between detainees and MCJ employees, and any documents containing the names, addresses [sic] offense charged, date of arrest, date of arrival at the MCJ, telephone numbers and emergency contact information for all pretrial detainees charged with misdemeanors, violations, violation of parole, violation of probation, or held on civil or family court matters, conducted at the Montgomery County Jail ("MCJ") from April of 2000 to the present.
Bruce E. Menkin, Esq. Letter Dated December 4,2003 (Dkt. No. 31) Exh. A, p. 4 2

action. 2
Oral argument concerning plaintiff's motion was conducted on
December 18, 2003. During oral argument I advised the parties that I did
not find any basis to conclude that the identity and charges associated
with most if not all pretrial detainees was inherently private, particularly in
view of the fact that such information usually is publicly available. I did
acknowledge, however, privacy concerns with respect to some of the
other information sought including, notably, social security numbers and
dates of birth, ~~concluded that those privacy considerations were outweighed in t~ instance by the potential relevance of the information
sought and could be adequately addressed through the issuance of a
protective order. At the conclusion of the motion hearing a decision,
which is incorporated herein by reference, was rendered orally from the
bench granting plaintiff's application subject to certain stated conditions.
The court having carefully reviewed the submissions of the parties
2
During the . co ery hearing I noted that in his reply letter brief, dated December 16, 2003, aintiff raised, without first seeking permission, additional discovery issues. T se issues were responded to by letter submission sent by defendants' counsel ecember 17, 2003, also without court permission. That portion of plaintiff's reply let er addressing discovery issues unrelated to that which the hearing was intended to address, and defendants' submission dated December 17, 2003 in its entirety, are hereby rejected and the parties are reminded of the court's established practice of requiring permission for submission of materials pertaining to any discovery disputes.
3

and the arguments contained therein, as well as the various authorities cited including, inter alia, Burka v. New York City Transit Authority, 110 F.R.D. 660 (S.D.N.Y. 1986) and Lora v. Board of Education, 74 F.R.D. 565 (E.D.N.Y. 1977), and upon due deliberation, it is hereby
ORDERED as follows: 1) Plaintiff's motion to compel discovery is conditionally granted. 2) Within sixty (60) days of the date of this order, provided that a confidentiality order as set forth below has been entered prior to that date, defendants shall produce to plaintiff's counsel the name, address, social security number, date of birth, next of kin telephone number, offense charged, date of arrest, and day of arrival at the Montgomery County Jail from April of 2000 to the present for all pretrial detainees charged with misdemeanors, violations, violation of parole, violation of probation, or held on civil or family court matters. 3) At defendants' option, the information required above may be provided by producing either inmate booking sheets associated with such detainees, redacted to exclude all other information aside from that referenced herein or, in the alternative, a summary chart containing the information as derived by booking sheets and other available sources of information. Any such chart shall be signed by counsel pursuant to Rule
4

11 of the Federal Rules of Civil Procedure. 4) The production requirement set forth herein is conditioned
upon the prior entry of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, either on stipulation or, if the parties cannot agree, by the court restricting access to the information disclosed pursuant to this order to attorneys for the parties and those employees and agents working directly with the attorneys, for use only in connection with this action, and further providing that any person to whom information provided under this order is disclosed must sign a statement agreeing to be bound by the confidentiality order, and that plaintiff's counsel must maintain a list of all persons to whom the information has been distributed.
5) That the clerk is directed to promptly forward copies of this order to counsel for the parties to this action.

Dated:

David E. eebles U.S. Magistrate Judge
December 23, 2003 Syracuse, New York

G:\Civil\2003\03-CV-0531 \order3.wpd

5

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOD, Both Individually, and on Behalf of a Class of Others Similarly Situated; BARBARA DAVIS; and ANDY RIVERA;

Plaintiffs,

vs

5:03-CV-531

COUNTY OF MONTGOMERY; MONTGOMERY COUNTY SHERIFF'S DEPARTMENT; MICHAEL AMATO, Individually, and as Sheriff of the County of Montgomery; JEFFREY SMITH, Individually, and as Undersheriff of the County of Montgomery; KEVIN SNELL, Individually, and as former Undersheriff of the County of Montgomery; JOHN PECORA, Individually, and as Jail Administrator in the Montgomery County Sheriff's Department; and SUE BUDDLES, Individually, and as Lieutenant in the Montgomery County Sheriff's Department,
Defendants.

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F\LEO

MI\R 2 5 2005 M

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8AERMAN, e\er\<

LAWREN U'f\CA

APPEARANCES:
BERANBAUM MENKEN BEN-ASHER
& BIERMAN LLP
Attorneys for Plaintiff 3 New York. Plaza New York., NY 10004
ELMER R. KEACH, III, ESQ. Attorney for Plaintiff One Steuben Place Albany, New York 12207
MASON LAW FIRM Attorney for Plaintiff Suite 500 1225 19th Street N.W. Washington, DC 20036

OF COUNSEL: BRUCE E. MENKEN, ESQ.
GARY E. MASON, ESQ.

BERANBAUM MENKEN BEN-ASHER
& BIERMAN LLP
Attorneys for Plaintiff 32nd Floor 80 Pine Street New York, New York 10005

JASON J. ROZGER, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorney for Defendants One Steuben Place Albany, New York 12207

THERESA B. MARANGAS , ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants 150 East 42nd Street New York, New York 10017-5639

THOMAS W. HYLAND, ESQ.

DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Paul Marriott ("Marriott") filed this action individually and on behalf of a

class of others similarly situated alleging that the policy of the Montgomery County Jail ("the

Jail") providing for the search of all admittees constitutes a strip search in violation of the

Constitution of the United States. An amended complaint was filed on October 4,2004, with

the consent of all parties. The amended complaint included two additional plaintiffs, Barbara

Davis ("Davis") and Andy Rivera ("Rivera").

Plaintiffs moved to certify the class pursuant to Fed. R. Civ. P. 23 and for a

preliminary injunction. Defendants opposed and cross moved for summary judgment.

Plaintiffs opposed the cross motion.

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Defendants appealed the July 7, 2004, Order of Hon. David E. Peebles, United States Magistrate Judge, compelling the production of two letters dated March 26, 2004, and one letter dated April 20, 2004, from defense counsel to Dora L. Hurd ("Hurd"), a non-party witness employed at the Jail during the relevant time period. Plaintiffs opposed.
Oral argument was heard on October 22,2004, in Albany, New York. Decision was reserved.
On December 22, 2004, Clarendon Insurance Company ("Clarendon") moved to intervene. Defendants noted that they would not be making any submissions with regard to the motion to intervene. Plaintiffs opposed. Clarendon's motion to intervene was taken on submission of the papers, without oral argument. II. BACKGROUND
A written Jail policy provides procedures for admitting/booking inmates into the Jail. The admissions policy, effective July 1, 1996,1 provides for an initial pat-down search of admittees upon their entrance into the facility. (See Pitts.' Ex. D.) A separate policy defines different types of searches and delineates the circumstances in which each should be used, as will be discussed momentarily. (See Pitts.' Ex. S.)
Upon a determination that the admittee would be housed at the Jail (in other words, would not make bail) the policy provides for an officer to facilitate the admittees' change from street clothes into Jail attire, as follows:
the booking officer will escort the inmate to the shower area where the inmate will disrobe and place all clothes in the bag provided by the officer, and be required to take a shower. A. All persons and personal property
1 A new policy became effective on May 21, 2003, that was revised to reflect a new sheriff and jail administrator. The language regarding the admission procedure was not changed.
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shall be searched in accordance to the law. Solely to prevent the introduction of contraband to the facility.... (Pltfs.' Ex. D ~ 12.) Defendants refer to this portion of the admission process as a "changeout" procedure. Pursuant to this policy, when an admittee is being processed, a Corrections Officer ("CO") (who is the same sex as the admittee) has him or her remove all of their clothing and place it in a bag. The admittee then must shower. Defendant John Pecora ("Pecora"), Jail Administrator at the relevant times, testified that during the change-out, the CO viewed the naked inmate through a window to see if there were any gang tattoos indicating gang affiliation. (Pltfs.' Ex. H, Pecora Dep. at 122-23, 12635, Ex. I, Pecora Dep. at 58-59.) Richard Denton ("Denton"), a CO and supervisor at the Jail from 1994 to 2003, testified that during the change-out he would stand in the shower room while an admittee disrobed and put his street clothes into a bag. (Pltfs.' Ex. K, Denton Dep. at 35-36, 51-52.) Denton stated that he visually would observe an admittee as he disrobed, noting any tattoos generally (not gang tattoos), and contraband. Id. at 38, 88-89, 105. However, he did not consider this a search but rather an observation. See id. at 38.
Defendant Susan o. Buddies ("Buddies") was employed as a part-time CO at the
Jail beginning in 1992. She was promoted to supervisory positions, which she held during the relevant time periods. Buddies testified that the purpose of the change-out was to be sure the inmate was not injured or bruised, to become aware of any scars or tattoos, and, most importantly, to prevent the introduction of contraband into the Jail. (Pltfs.' Ex. J, Buddies Oep. at 34-35.) She stated that only female COs changed-out female inmates, and only male COs changed-out male inmates. Id. at 37. The only instance of a gang-related
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tattoo of which she was aware was of a tear drop near the eye, signifying membership in the Blood gang. Id.
Donald F. Gardner, a CO at the Jail from 1986 to 2002, testified that he moved around during the change-out. (Pitts.' Ex. L, Gardner Dep. at 57.) However, he stated that an admittee's genitals could be seen during the change-out. lQ. at 57-58. Additionally, he testified that the purpose of the change-out was for hygiene, not to detect contraband and not to detect tattoos. lQ. at 57.
Hurd, a CO at the Jail from 2000 to 2002, testified that she stayed in the shower area while the admittee was changing and looked at the naked admittee to be sure that all of her clothing had been taken off and put in the property bag. (Pitts.' Ex. M, Hurd Dep. at 4041.) Assuring that all the admittee's clothing was in the property bag prevented contraband from entering the Jail, according to Hurd. Id. at 42. She never heard of a gang tattoo search, and was never instructed to look for gang tattoos during a change-out. Id. at 55, 7980. Further, she knew of no one else who did so. Id. at 79-80.
Aaron L. Robinson was a CO at the Jail between February 2001 and February 2002. He also stood in the shower room while the admittee changed clothes, and was positioned so that he could see most of the naked body and partly see the genitals. (Pitts.' Ex. N, Robinson Dep. at 25-27.) In addition to observing the naked body of the admittee, Robinson asked them to turn around, and to hold their arms out in front of them and squat. Id. at 28-29. He did not ask them to bend over, lift or manipulate their genitals, or spread their buttocks. Id. Robinson stated that he did not look for tattoos during a change-out. lQ. at 121. He stated that the purpose of the change-out was to prevent contraband (the squat
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was required to be sure the admittee was not hiding anything.) Id. at 76, 79. Robinson also opined that the change-out was not a search. lQ. at 71.
After showering, the admittee dried off, then donned prison garb that was provided to him or her. The admissions policy, hence the change-out procedure, applies to everyone who is admitted to the Jail.
In addition to a written policy for admissions/booking, the Jail has a written policy pertaining to searches. 2 According to the search policy, a strip search was defined as "A visual examination of an inmate's naked body and physical examination of the inmate's clothing for contraband and/or injuries and physical abnormalities." (Pitts.' Ex. S.) According to the policy, strip searches "may" be conducted upon admission, after contact visits, on return from a temporary release program and work detail outside the facility, prior to and upon returning from any trip outside the facility, and "as authorized by the shift supervisor whenever there are reasonable grounds to believe the inmate possesse[d] contraband which may not be detected by a pat search or metal detector search." Id.
Pecora testified that a strip search always was conducted after an inmate was outside the facility, such as on work release, without regard to reasonable suspicion. (Pitts.' Ex. H, Pecora Dep. at 164-65.) Included in the strip search is a visual check of the all body cavities. (Pitts.' Ex. S.) Denton described a strip search as follows: the inmate would disrobe, squat down, cough, lift their genital sack, and open their mouth and the CO would look in the inmate's open mouth, run his fingers through the inmate's hair, and spread their buttocks. (Pitts.' Ex. K, Denton Dep. at 34.)
2 This policy covers pat, strip, body cavity, metal detector, overall, and area searches. (Pitts.' Ex. S.) Only strip searches are relevant to the issues at hand.
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Pecora described the circumstances in which a strip search could be conducted, although it was not required. If there was reasonable suspicion that an inmate had contraband or a weapon, the supervisor could authorize a strip search. (Pitts.' Exp. I, Pecora Dep. at 11-12.) Pecora elaborated that if an admittee were going to be housed in the Jail, and there was reason to believe that the person was hiding contraband, was "highly assaultive," or otherwise was "a high risk individual with high charges" then the supervisor could require a strip search. Id. at 19-20. Denton noted that if contraband were discovered during the change-out process, a strip search could be conducted. (Pitts.' Ex. K, Denton Dep. at 65-66.)
If it was determined that a strip search was needed for an admittee, then it would take place in the shower area either before or after the shower. (Pitts.' Exp. I, Pecora Dep. at 58-60; Pitts.' Ex. K, Denton Dep. at 72.) The CO would be in the shower area directing the admittee during the strip search. (Pitts.' Ex. I, Pecora Dep. at 58-60, Ex. K, Denton Dep. at 66.)
Denton also noted that a list was posted on the wall in the booking room listing certain Penal Code sections, or "strip-searchable offenses." (Pitts.' Ex. K, Denton Dep. at 56.) The CO conducting the booking would compare the Penal Code section under which an admittee was charged to the list to determine if a strip search was permissible. Id. 56-61. If the charge matched the list, then it was permissible, but not required, to conduct a strip search. 3 Id. Buddies testified that the list of strip-searchable offenses posted in the booking room did not stand on its own--other reasons must be present before a strip search was
3 Under the table of strip searchable penal law offenses, it stated: "This is a list of offenses for which strip searches may be automatically conducted at admission. It does not limit the right to do searches if their [sic] is reasonable suspicion that the inmate is concealing contraband." (Pitts.' Ex. 0.)
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conducted. (Pitts.' Ex. J, Buddies Dep. at 167-69.) Gardner testified that whether or not a charge was on the list, he would consider the admittee's nature, actions, type of clothing, and personal property in determining whether to conduct a strip search at admission. (Pitts.' Ex. L, Gardner Dep. at 39-46.) Robinson testified that he was not aware of the charge against an admittee at the time he performed the change-out. (Pitts.' Ex. N, Robinson Dep. at 38.) Hurd did not recall ever having seen the strip-searchable offenses list. (Pitts.' Ex. M, Hurd Dep. at 55-58.)
Marriott was admitted to the Jail on Sept. 13, 2001, on misdemeanor Agriculture and Markets violations relating to failure to feed and water five horses. After the initial questioning and fingerprinting in the booking process, he was taken to the shower room. A CO told him to remove all of his clothing, shake it out as he took it off, and to take a shower, which he did. The CO watched him undress and shower. After the shower, while completely naked, the CO told Marriott to lift up his arms, open his mouth, and show the CO the bottoms of his feet. Marriott was also required to bend over in front of the CO and spread the lobes of his buttocks. He was then told to dress in a Jail uniform, which he did. Marriott was released the next day after bail was posted.
Davis was arrested at her home on May 2, 2001, after missing a court date in Family Court. She was brought before a Family Court judge, who informed her that she would be jailed until she paid $2,000.00 in past-due child support. Her arrest and incarceration rested upon a civil family court warrant, not related to any criminal offense. Upon her arrival at the Jail, the booking officer questioned her. Then a female CO escorted her to the shower room. The CO directed her to remove all of her clothing and take a shower. The CO watched her shower. After the shower, while Davis was completely naked,
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the CO ordered her to lift up her arms and open her mouth. The CO also required Davis to
bend over in front of her and spread the lobes of her buttocks. Davis was released three
days later, when her brother posted the $2,000.00 for her.
Rivera was admitted to the Jail on June 1, 2004, on a misdemeanor second degree
aggravated harassment charge. After the initial admissions paperwork, a CO took him the
shower room. A CO required Rivera to remove all of his clothing, including his underwear,
and submit to a visual inspection. Rivera then donned the Jail clothing provided to him.
Non-party Jacqueline Ashline ("Ashline") asserts that she has agreed to serve as a
named plaintiff and class representative. On April 6, 2001, Ashline was brought to the Jail as
a pre-trial detainee. She was charged with driving while intoxicated, a Vehicle and Traffic
Law offense. After being fingerprinted, she was taken by a female CO to the shower room.
The CO required her to remove all of her clothing and take a shower. She complied. The
CO watched Ashline disrobe and shower. After showering, Ashline dried off. The CO left the
shower room and then passed a Jail uniform to Ashline through a window in the room for her
to put on.
The named plaintiffs and Ashline contend that they are representatives of a class
defined as follows:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were or will be strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commences on April 29,2000, and extends to the date on which the Montgomery County Sheriffs Department and/or the County of Montgomery are enjOined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches
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absent reasonable suspicion. Specifically excluded from the proposed class are Defendants, and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. (Am. Compl. 1{18.) III. DISCUSSION Clarendon seeks intervention in order to make arguments in support of defendants' cross motion for summary judgment. Accordingly, the motion to intervene will be addressed first. Although defendants' motion for summary judgment was made by cross motion, it will be addressed second since a disposition in defendants' favor would render the remaining questions moot. The remaining issues, the appeal of the Magistrate Judge's decision, plaintiffs' motion for class certification, and the plaintiffs' motion for preliminary injunctive relief, will then be addressed. A. Motion to Intervene Intervention is permitted when a conditional right to intervene is conferred by a federal statute and "when an applicant's claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. P. 24(b). Timeliness of the motion to intervene is a threshold requirement. Id.; United States v. Pitney Bowes. Inc., 25 F.3d 66, 74 (2d Cir. 1994). The court exercises discretion in determining whether to permit intervention, while considering "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed. R. Civ. P. 24(b). "Additional relevant factors 'include the nature and extent of the intervenors' interests,' the degree to which those interests are 'adequately represented by other parties,' and 'whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to
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the just and equitable adjudication of the legal questions presented.'" H.L. Hayden Co. of New York v. Siemens Med. Sys., Inc., 797 F.2d 85 (2d Cir. 1986) (quoting Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977) (footnote omitted), as quoted in United States Postal Servo v. Brennan, 579 F.2d 188, 191-92 (2d Cir. 1978)).
Here, Clarendon insured Montgomery County for the year 2002, within the range of the proposed class definition. Clarendon asserts that by virtue of its status as an insurer, it has a significant interest in the outcome of plaintiffs' motion for class certification and defendants' cross motion for summary judgment. However, it has no claim or defense, therefore no question of law or fact common to the main action. That Clarendon has no claim or defense is established by its reliance upon the defendants' Amended Answer. (Reply Aff. 114; see also Fed. R. Civ. P. 24(c) (requiring that a motion to intervene "be accompanied by a pleading setting forth the claim or defense for which intervention is sought".)) Further, Clarendon seeks to intervene solely to argue an issue on the pending motions, not to become a party to the action, indicating that it is not asserting any claim or defense. Intervention would be improper, where, as here, there is no question of law or fact in common with the main action because there is no asserted claim or defense. See Fed. R. Civ. P. 24(b); cf. Metzler v. Bennett, No. 97-CV-0148, 1998 WL 187454, at *10 (N.D.N.Y. Apr. 15, 1998) (denying motion for intervention where no common question of law or fact because applicants' claims based on different statutory provisions which arose out of different factual context).
Clarendon argues that its interest in the outcome of the motions bears upon the determination of the motion to intervene. It first cites the relevance factors of Brennan, such as the nature and extent of the intervenor's interest. However, these factors are considered
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by a court in determining whether to permit intervention as set forth in Rule 24(b), that is, whether intervention will cause undue delay or prejudice in the adjudication of the rights of the original parties. See Brennan, 579 F.2d at 191-92. Consideration of the factors presupposes that the applicable prerequisite of the Rule--"when an applicant's claim or defense and the main action have a question of law or fact in common" --is met. See Fed. R Civ. P. 24(b). Here the prerequisite has not been met therefore consideration of the Brennan factors is irrelevant.
Clarendon also cited Hartford Fire Ins. Co. v. Mitlof, 193 F.RD. 154 (S.D.N.Y. 2000), in support of permitting an insurance company to intervene when a possibility existed that its policy would be implicated by a judgment in the action. In Mitlof, the court found intervention appropriate under Rule 24(a), intervention as of right. Rule 24(a), in contrast to 24(b) which is at issue here, allows intervention when an interest is claimed '''relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'" Mitlof, 193 F.RD. at 161 (quoting Fed. R Civ. P. 24(a)). Thus, it was appropriate for the Mitlof Court to assess the insurer's interest in the determination at issue in the main action as well as its ability to protect its interest. See Mitlof, 193 F.RD. at 160-62 (analyzing the proposed intervenor's interest in the action and the impairment of that interest pursuant to Rule 24(a)). In contrast, here the analysis under Rule 24(b) requires a determination of the existence of a common question of law or fact--not whether the interest claimed relates to the action. Compare Fed. R Civ. P. 24(b) with Fed. R. Civ. P. 24(a). Additionally, the applicant in Mitlof sought to bring a counterclaim seeking declaratory relief. 193 F.RD. at
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161. Here, Clarendon does not wish to bring any sort of claim--it only wishes to argue an issue on the pending motions. Mitlof is factually and legally distinguishable from the case at hand and provides no support for the motion to intervene.
In sum, Clarendon has failed to demonstrate the existence of a common question of law or fact. Therefore, the motion to intervene is denied.
B. Defendants' Cross Motion for Summary Judgment Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U,S. 242, 247 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for triaL" Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587.
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Defendants seek summary judgment contending that the undisputed facts in the case show that there was no Jail policy or practice of strip searching admittees without regard to reasonable suspicion. At the same time, however, they agree that Jail policy provides that each admittee must completely disrobe in front of an officer and stand while the officer observes the naked body for injury and gang tattoos. (See. e.g., Defs.' Mem. at 3.) After this visual observation by a CO the admittee showers and changes into Jail attire. Defendants term this procedure a change-out, and insist it is not a strip search. The justification for not terming the change-out a strip search lies in the written Jail policy that defines strip search as a "visual[] check of the inmate's body, including all body cavities." (Pitts.' Ex. Bat 5.) Defendants contrast the Jail's definitions: the strip search which includes a check of all body cavities versus the change-out which does not require a body cavity check.
Using any other definition of strip search necessarily negates defendants' argument. Moreover, questions of fact exist as to exactly what the policy and practice is of the Jail with regard to the change-out.
The common definition of strip search is "to search (a person) by requiring removal of the clothes." Webster's New World Dictionary 1328 (Victoria Neufeldt & David B. Guralnik, eds., 3d College ed. 1988). As a legal term, strip search means "[a] search of a person conducted after that person's clothes have been removed, the purpose usu[ally] being to find any contraband the person might be hiding." Black's Law Dictionary 1378-79 (8th ed. 2004). Search is "[a]n examination of a person's body, property, or other area that the person would reasonably be expected to consider as private." Id. at 1377. Notably, even the legal definition mentions nothing about a body cavity search being integral to a strip search. It is
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necessary to look at what took place at the change-out procedure to determine whether it falls within the definition of a strip search.
Here, there is no dispute that during the change-out admittees are required to remove all of their clothing in the presence of a CO, without any reasonable suspicion inquiry. Even the COs all agreed that they were present when the admittee removed his or her clothing and the admittee's naked body was visible to them. Where they differ is in the extent and purpose of the ensuing search. For example, Gardner testified that the purpose of the change-out was for hygiene, and not to detect contraband or tattoos. (Pitts.' Ex. L, Gardner Dep. at 57.) However, he did state that he could see an admittee's genitals during the change-out. Id. at 57-58. In contrast, Denton testified that he visually observed an admittee to note tattoos generally and contraband. (Pitts.' Ex. K, Denton Dep. at 38, 88-89, 105.) Buddies testified that the naked admittee was viewed to find any injuries, tattoos or scars, and for contraband. (Pitts.' Ex. J, Buddies Dep. at 34-35.) According to Hurd, the purpose of the change-out was to detect contraband, primarily by taking all of the admittee's clothing. (Pitts.' Ex. M, Hurd Dep. at 42.) In further contrast, Robinson stated that in addition to viewing the admittee's naked body, he required that they turn around, lift out their arms, and squat. (Pitts.' Ex. N. Robinson Dep. at 28-29.) His main purpose was to detect contraband, and he did not even look for tattoos. lQ. at 76,79, 121. Further, Marriott, Davis, and Ashline testified that in addition to being visually observed while naked they were required to bend over and spread the lobes of their buttocks.
The differences just pointed out in the extent and purpose of the change-out procedure do not change the fact that the admittees are required to strip naked in front of a CO and submit to the observation of their body by the CO. This procedure squarely fits both
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the common and legal definitions of strip search. At bottom, the defendants' argument is one of semantics, and the argument fails. Defendants' insistence that no strip search occurs is contrary to all the factual testimony, of both corrections officers and plaintiffs. Using different terminology, such as change-out, does not change the observation of a naked admittee to anything other than what it is--a strip search.
Defendants contend that the Second Circuit has determined that in order to be constitutionally problematic, a strip search must target the breast, genitals, and anus, citing Weber v. Dell, 804 F.2d 796 (2d Cir. 1986). This misstates the law of this Circuit. In Weber, the Second Circuit held that the
Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest. 804 F.2d at 802. However, the court's finding that a striplbody cavity search is unconstitutional absent reasonable suspicion does not equate to a holding that any less intrusive search comports with the Fourth Amendment. Indeed, the court recognized that two types of search were at issue in discussing the deference to prison officials when determining "when the intrusion of strip searches and body cavity searches" are justifiable. See id. at 804 (emphasis added). Further the court cited to "eleven circuit court decisions ... hold[ing] similar policies unconstitutional," five of which involved strip (not body cavity) searches. See id. at 803, 801 nn.6-7. Further amplification of the Weber decision has since been rendered. See Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988) (reiterating its holding in Weber that "particularized suspicion is required for strip-searching any person arrested for a
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misdemeanor or other minor offense"). The Weber Court simply did not hold that the breast, genitals, and anus must be targeted in order to run afoul of the Constitution.
Defendants further base their entitlement to qualified immunity on the assertion that there is no policy to strip search admittees without regard to reasonable suspicion. Based upon the foregoing, it is clear that there is such a policy, and defendants are not entitled to summary judgment on their qualified immunity defense. Moreover, the individual defendants are not entitled to qualified immunity because it is clearly established that "indiscriminate strip searches" are unconstitutional. Walsh, 849 F.2d at 69 (explaining that the Weber Court found that the unconstitutionality of indiscriminate strip searches was clearly established in June 1983); Shain v. Ellison. 273 F.3d 56, 66 (2d Cir. 2001) (explaining that qualified immunity was properly denied because the right to be free of a strip search absent reasonable suspicion was clearly established at the time of incident).
Accordingly, defendants are not entitled to summary judgment.
C. Appeal of Magistrate Judge's Decision
Defendants appeal the oral order of Hon. David E. Peebles, United States . Magistrate Judge, made on June 24, 2004 and embodied in a written order dated July 7,
2004, to that extent that the order required production of letters dated March 26, 2004, and April 20, 2004, from defense counsel to non-party Dora Hurd. Plaintiffs oppose the appeal. The order was stayed pending resolution of the appeal.
The standard for review of a magistrate judge's decision on non-dispositive matters is whether the magistrate judge's findings are "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1 )(A); Fed. R. Civ. P. 72(a). Clear error may be found "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite
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On March 26, 2004, defense counsel sent two letters addressed to Hurd, to the last two known addresses that were available. On April 14, 2004, plaintiffs disclosed that they intended to depose Hurd as a non-party witness. Defense counsel confirmed that Hurd worked at the Saratoga Correctional Facility, and left a telephone message for her there on April 15, 2004. Hurd returned the call the next day. She stated that she had not received a letter from counsel and she had not been subpoenaed to a ~eposition. She confirmed to defense counsel that she wished to be represented by them. Defense counsel sent an additional letter to Hurd on April 20, 2004, at her current address, regarding representation.
Judge Peebles found that the letters at issue were not protected by the attorney client privilege or the work-product doctrine.
Hurd never received the March 26,2004 letters. Thus, they were not in her possession and would not be covered by the subpoena. Additionally, because she never received them the Magistrate Judge's reasoning that they were sent prior to the formation of the relationship cannot support finding waiver or lack of privilege. As to the April 20, 2004 letter, it was not, as Judge Peebles stated, "merely" information regarding the representation. Rather, the letter went to great length in explaining the potential conflict with non-party
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witnesses, the named defendants, and the County. It was clearly erroneous to compel the production of the three letters. Therefore, to the extent that the July 7, 2004, order compelled production of the March 26, 2004, and April 20, 2004, letters, it is set aside. See Fed. R Civ. P. 72(a).
D. Motion to Certify the Class '''In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 have been met.'" Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178,94 S. Ct. 2140, 2153 (1974) (quoting Miller v. Mackey Int'l, 452 F.2d 424 (5th Cir. 1971 )). Thus, when deciding a motion to certify a class, the allegations in the complaint are accepted as true. See Shelter Realty Corp. V. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). "Rule 23 requires a litigant who would bring a class action to overcome two hurdles. First, he must satisfy all the conditions of 23(a) and then he must also convince the court that his action is appropriate under one of the three subdivisions of 23(b)." Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968); Amchem Prods. Inc. v. Windsor, 521 U.S. 591,614,117 S. Ct. 2231, 2245 (1997). The plaintiff, as the party seeking class certification, bears the burden of proof in demonstrating that the requirements have been met. Caridad V. Metro-North Commuter RR, 191 F.3d 283, 291 (2d Cir. 1999); Verdow V. Sutkowy, 209 F.RD. 309, 311 (N.D.N.Y. 2002). However, plaintiff is not required to make an extensive evidentiary showing. Verdow , 209 F.RD. at 311. Further, courts are implored to construe liberally the Rule 23 requirements. Eisen V. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968); Verdow ,209 F.RD. at 311.
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1. Rule 23(a) Prerequisites The prerequisites to a class action are: "(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). In common legal parlance, these requirements are generally referred to as numerosity, commonality, typicality, and adequacy of representation. See General Tel. Co. v. EEOC, 446 U.S. 318, 330,100 S. Ct. 1698, 1706 (1980). The first requirement that plaintiffs must prove under Rule 23(a) is that the prospective class is so numerous that joinder is "impracticable." Fed. R. Civ. P. 23(a)(1). "Impracticable" in this context is not equivalent to "impossible," and plaintiffs need not even precisely quantify the prospective class so long as they reasonably estimate the number of potential class members. See Robidoux v. Celani, 987 F.2d 931,935 (2d Cir. 1993); Verdow, 209 F.R.D. at 311. The Second Circuit has held that a prospective class of forty or more raises a presumption of numerosity. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Plaintiffs assert that booking sheets for prospective class members number over 2,000. Additionally, approximately 1,500 individuals charged with misdemeanors or other minor crimes were admitted to the Jail during 2000, 2001, and 2002. Thus, it is estimated that the class will number over 2,000. Defendants do not challenge these numbers. Rather, they argue essentially that there was no strip search, therefore those 2,000-plus admitlees would not fall within the class. Plaintiffs have established sufficient numerosity. See Consol. Rail Corp., 47 F.3d at 483.
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The second requirement of commonality requires a showing that the prospective
class members share common questions of law or fact. Fed. R. Civ. P. 23(a)(2). Where the
"claims of all proposed class members derive from the same [] policies and procedures, and are based on the same legal theories," the commonality requirement is met. McNeill v. New York City Hous. Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989).
Here the representative parties and the members of the proposed class base their Fourth Amendment unreasonable search claims on the unconstitutionality of the Jail changeout procedure. That is, the named plaintiffs and the putative class members have the same , legal claims based upon the same official procedure. Accordingly, the commonality requirement is met. See id.
The third requirement, typicality, requires that claims or defenses of the
representative party or parties are typical of those of the prospective class. Fed. R. Civ. P.
23(a)(3). The representative claims need not be identical to the claims of every class member in order to meet the typicality requirement. McNeill, 719 F. Supp. at 252. The claims of the representative parties in this case, while involving a more detailed search than every member of the class, still are based upon a strip search conducted pursuant the Jail change-out policy. Therefore, the typicality requirement is met.
The final requirement under Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the prospective class. Fed. R. Civ. P. 23(a)(4). When determining if this requirement is met, a plaintiff must make two showings: (1) that counsel for the prospective class is qualified, experienced, and generally able to conduct the litigation; and (2) that the class members, especially the representative party, do not have interests antagonistic to one another. See In re Joint Eastern & Southern Dist. Asbestos
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Litigation, 78 F.3d 764, 778 (2d Cir. 1996). The attorneys representing the named plaintiffs and the putative class have established that they are qualified, experienced, and are generally able to conduct this litigation. Defendants make no viable arguments to the contrary. Further, the representative plaintiffs and the putative class do not have antagonistic interests. Defendants argue that the named plaintiffs' claims are not typical of the class because they all involved a more invasive search than some of the class members will have undergone. However, as discussed above, claims need not be identical and the named plaintiffs meet the typicality requirement. Accordingly, the variation in the factual claims do not create an antagonism between the interests of the representative plaintiffs and the class.
The prerequisites of Rule 23(a) are met. Consideration of the requirements of Rules 23(b)(2)and 23(b)(3), upon which plaintiffs' motion for certification is based, will be determinative of the motion.
2. Rule 23(b)(2) Mandatory Class
This subsection permits class certification if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Fed. R Civ. P. 23(b)(2). In other words, a class will be certified if "broad, class-wide
injunctive or declaratory relief is necessary to redress a group-wide injury." Robinson v.
Metro-North Commuter RR Co., 267 F.3d 147, 162 (2d Cir. 2001).
Where class-wide injunctive or declaratory relief is sought in a (b)(2) class action for an alleged group harm, there is a presumption of cohesion and unity between absent class members and the class representatives such that adequate representation will generally safeguard absent class members' interests and thereby satisfy the strictures of due process. This presumption of cohesion and unity continues where incidental damages are also sought because entitlement to such damages does not vary
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based on the subjective considerations of each class member's claim, but flows directly from a finding of liability on the claims for class-wide injunctive and declaratory relief.
lQ. at 165 (internal quotations and citations omitted).
In the instant case, the challenged policy, the change-out procedure, is generally applicable to all class members. Therefore, final injunctive relief or corresponding declaratory relief with respect to the class as a whole is appropriate. See id. at 162. Moreover, while monetary damages are sought, the centerpiece of the litigation is elimination of the change-out procedure which is applicable to all admittees without a requirement for reasonable suspicion. Accordingly, class certification under Rule 23(b)(2) is appropriate.
3. Rule 23(bU31 Money Damages Class
"Framed for situations in which class action treatment is not as clearly called for as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit may nevertheless be convenient and desirable." Amchem Prods., 521 U.S. at 615, 117 S. Ct. at 2245 (internal quotation omitted). Under Rule 23(b)(3), it must be determined whether: (1) '''questions of law or fact common to the members of the class predominate over any questions affecting only individual members;'" and whether (2) proceeding by class action "'is superior to other available methods for the fair and efficient adjudication of the controversy.'" Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (quoting Fed. R. Civ. P. 23(b)(3)).
While the predominance requirement of Rule 23(b)(3) is more demanding than the commonality requirement of Rule 23(a)(2), issues applicable to the class will be said to "predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if
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these particular issues are more substantial than the issues subject only to individualized proof." Id. "Common issues may predominate when liability can be determined on a classwide basis, even when there are some individualized damages issues." In re Visa ChecklMasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001).
Here, the common question is whether the change-out, strip search procedure applicable to all admittees, regardless of whether reasonable suspicion exists that contraband or weapons are possessed, violates the Fourth Amendment. This question does not vary among class members. Questions of fact differing among the members of the class relate to the extent of the search to which each individual was subjected, which would affect the amount of compensatory damages. Although there may be differing facts about the personal involvement of some individual defendants, the predominate questions pertain to the sheriff, Jail administrators, and the Jail policy. Other minor differences between class members, such as what the charges were against each of them, relate to membership in the class but not to other issues.
Efficiency of adjudication would also be increased by litigation as a class action. While there are as many as 2,000 class members, there is one central issue of law--whether the change-out strip search violates the Fourth Amendment. Piece meal litigation by multiple plaintiffs in multiple law suits would not promote efficiency and would be inferior to litigation of the issue in one suit. Thus, a class action would promote the fair and efficient resolution of this controversy. Accordingly, certification of the class under Rule 23(b)(3) is appropriate.
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E. Preliminary Injunction Plaintiffs renew their motion for a preliminary injunction. Defendants oppose. As an initial matter, a plaintiff must have standing in order to seek injunctive relief. Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004). Without standing, subject matter jurisdiction is lacking and injunctive relief cannot be had. Id. In order to establish standing, plaintiffs must demonstrate that they '''sustained or [are] immediately in danger of sustaining some direct injury as the result of the challenged official conduct.'" Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95,101-102, 103 S. Ct. 1660, 1665 (1983)). Where there is an official policy at issue, "there is a likelihood of recurring injury" and plaintiffs have standing to seek injunctive relief. Deshawn E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998). A preliminary injunction should issue only where the party seeking such relief shows "that it is likely to suffer irreparable injury if relief is denied [and] also that there is either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the [movant's] favor." Procter & Gamble Co. v. Chesebrough-Pond's Inc., 747 F.2d 114, 118 (2d Cir. 1984); Otokoyama Co. v. Wine of Japan Import. Inc., 175 F.3d 266, 270 (2d Cir. 1999); Eng v. Smith, 849 F.2d 80,81-82 (2d Cir. 1988); Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). Where "'a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be applied."' Brown v. Giuliani, 158 F.R.D. 251, 264 (E.D.NY. 1994)(quoting Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993)(internal quotation omitted)); Connecticut Dep't of Envtl. Protection v. OSHA, 356
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F.3d 226, 230-31 (2d Cir. 2004) (noting that where a statutory or regulatory scheme is challenged, the more rigorous likelihood of success standard must be met).
Irreparable harm must be imminent, not remote or speculative. Brown, 158 F.R.D. at 264 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). Where monetary damages cannot compensate for the injury, the harm is irreparable. Id. (citing Studebaker Corp. v. Gittlin, 360 F.2d 692, (2d Cir. 1966)). Further, "the alleged violation of a constitutional right triggers a finding of irreparable injury." Connecticut Dep't of Envtl. Protection 356 F.3d at 231.
In order to establish a likelihood of success on the merits, movants must show that their chance of prevailing is greater than frfty percent. Abdul Wali, 754 F.2d at 1025. "[C]onsiderable room for doubt" may remain. Id. A greater showing is required, however, where the injunction is mandatory rather than prohibitory. Eng, 849 F.2d at 82 (citing Abdul Wali, 754 F.2d at 1025). Where the relief sought is mandatory, a "clear showing that the moving party is entitled to the relief requested" must be made. Abdul Wali, 754 F.2d at 1025 (internal quotation omitted); Eng, 849 F.2d at 82. Additionally, where a preliminary injunction grants substantially all of the relief sought, a substantial likelihood of success on the merits must be established. Abdul Wali, 754 F.2d at 1026; see Eng, 849 F.2d at 82.
Here, the change-out procedure (which has been established constitutes a strip search) is done pursuant to a written policy of the Jail. Further, class certification has been granted. Accordingly, plaintiffs, as a certified class, have standing to seek prospective injunctive relief. See Deshawn E., 156 F.3d at 345.
The plaintiffs allege violation of a constitutional right. Therefore, irreparable harm is established. See Connecticut Dep't of Envtl. Protection 356 F.3d at 231.
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Finally, plaintiffs must establish a likelihood of success on the merits in order to obtain preliminary injunctive relief. As noted, the evidence submitted by the parties with respect to these motions makes clear that pursuant to the written change-out procedure, each admittee is subjected to a strip search (the visual observation of the naked body of the admittee by a CO). Further, defendants admit that the change-out is accomplished without regard to whether reasonable suspicion indicates that a particular admittee is secreting contraband or a weapon. Finally, there is a strong likelihood that the strip search at issue here, conducted as a matter of course without reasonable suspicion, will be found violative of the Fourth Amendment under Weber and its progeny. See Walsh, 849 F.2d at 69; Weber, 804 F.2d at 801 n.6, 802. V. CONCLUSION
Clarendon has no claim or defense related to this action therefore no common question of law or fact. Thus, intervention pursuant to Rule 24(b) is not proper.
The Jail's change-out procedure, applicable to all admittees without regard to reasonable suspicion, is tantamount to a strip search. Further, qualified immunity is not appropriate where, as here, there was a clearly established right to be free from a strip search in the absence of reasonable suspicion. Therefore, defendants are not entitled to summary judgment.
The March 26, 2004, letters to Dora Hurd were not subject to the subpoena. Further, those letters and the April 20, 2004, letter are protected by the attorney-client privilege and the attorney work product doctrine. Thus, the Magistrate Judge's determinations to the contrary are clearly erroneous. The Order compelling production is vacated.
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Plaintiffs meet the numerosity, commonality, typicality, and adequacy of representation prerequisites of Rule 23(a). Additionally, final injunctive or declaratory relief would be appropriate to the class as a whole pertaining to the official Jail change-out policy, meeting the requirements for certification of Rule 23(b)(2). The claims of the putative class members have common questions of law and fact that predominate over such questions as to the individuals. The circumstances of this case present a situation where a class action is a superior method for fair and efficient adjudication of the claims. Thus, the putative class is also appropriate for certification pursuant to Rule 23(b)(3).
The plaintiff class has standing to seek and obtain prospective injunctive relief. Because a constitutional violation is alleged, irreparable harm is established. The Jail's change-out procedure is a strip search by another name; therefore, plaintiffs' have demonstrated a substantial likelihood of success on the merits of the claim. Plaintiffs are entitled to preliminary injunctive relief.
Accordingly, it is ORDERED that 1. Clarendon'S motion to intervene is DENIED; 2. Defendants' cross motion for summary judgment is DENIED; 3. The Magistrate Judge's oral order of June 24, 2004, exemplified by a written order on July 7,2004, is VACATED; 4. Plaintiffs' motion for class certification is GRANTED; 5. Plaintiff certified class is defined as follows: All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were or will be strip searched upon their entry into the Montgomery County Jail
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pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commences on April 29, 2000, and extends to the date on which the Montgomery County Sheriff's Department and/or the County of Montgomery are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the proposed class are Defendants, and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 6. Plaintiffs' motion for a preliminary injunction is GRANTED; and 7. Defendants are PRELIMINARILY ENJOINED from conducting a strip search, as set forth in the Jail's change-out procedure, with regard to all persons being placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, without reasonable suspicion that such persons are secreting contraband and/or weapons. IT IS SO ORDERED.
Dated: March 25, 2005 Utica, New York.
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 t

'-

::'"

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
PAUL MARRIOD, Both Individually, and on Behalf of a Class of Others Similarly Situated; BARBARA DAVIS; and ANDY RIVERA;
Plaintiffs, vs

U. S. DISTRICT COURT
fl. D. OF N. Y. FILEO
MAR 252005

AT -

O'CLOCK M

LAWRENCE K. BAERMANCierk

5:03-CV-531

UTICA

J

COUNTY OF MONTGOMERY; MONTGOMERY COUNTY SHERIFF'S DEPARTMENT; MICHAEL AMATO, Individually, and as Sheriff of the County of Montgomery; JEFFREY SMITH, Individually, and as Undersheriff of the County of Montgomery; KEVIN SNELL, Individually. and as former Undersheriff of the County of Montgomery; JOHN PECORA, Individually, and as Jail Administrator in the Montgomery County Sheriffs Department; and SUE BUDDLES, Individually, and as Lieutenant in the Montgomery County Sheriffs Department,
Defendants.

APPEARANCES:
BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP
Attorneys for Plaintiff 3 New York Plaza New York, NY 10004
ELMER R. KEACH, III, ESQ. Attorney for Plaintiff One Steuben Place Albany, New York 12207
MASON LAW FIRM Attorney for Plaintiff Suite 500 1225 19th Street N.W. Washington, DC 20036

OF COUNSEL: BRUCE E. MENKEN, ESQ.
GARY E. MASON, ESQ.

'I, , ' "

BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP
Attorneys for Plaintiff 32nd Floor 80 Pine Street New York, New York 10005

JASON J. ROZGER, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorney for Defendants One Steuben Place Albany, New York 12207

THERESA B. MARANGAS, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants 150 East 42nd Street New York, New York 10017-5639

THOMAS W. HYLAND, ESQ.

DAVID N. HURD United States District Judge

ORDER

By Memorandum-Decision and Order filed this date the plaintiff class was certified

pursuant to Fed. R. Div. P. 23(b)(2) and 23(b)(3). It is appropriate in this matter to require

that prospective class members be notified of the general legal issues involved and that their

rights will be affected by resolution of this case. See LaFlamme v. Carpenters Local #370

Pension Plan, 212 F.R.D. 448, 459 (N.D.N.Y. 2003). While discretion may sometimes be

exercised to permit opt-out rights to absent class members, this is not an appropriate case in

which to do so. See id. Thus, notice to the prospective class members will not include an

opt-out provision. lQ. Where, as here, defendants are in sole possession of the information

about prospective class members, it is appropriate that defendants either provide the notice

or cooperate with the plaintiffs by providing the information necessary to provide the notice.

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.. ._I
JQ. at 460. The party providing the notice will d I termine whether the notice will be individual or general. See id. Costs of providing the noti e will be borne by plaintiffs. See id.
Accordingly, it is ORDERED that 1. Defendants elect, on or before Ap il 8, 2005, whether to provide notice to the prospective class or provide the information ne essary to plaintiffs so they can provide such notice; 2. The parties confer on or before A ril 18, 2005. At such conference, the party providing notice to the prospective class inform the other party of whether the notice to the prospective class will be individual or general. he parties attempt to agree upon the contents of a proposed notice; and 3. On or before April 28, 2003, the p rties submit for approval a proposed joint order setting forth the contents of the proposed notice, or, if an agreement as to content cannot be reached, the parties submit separate proposed notices. IT IS SO ORDERED.
Dated: March 25, 2005 Utica, New York.
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------

PAUL MARRIOTT,

Plaintiff,

v.

Civil Action No.

5:03-CV-0531 (DNH/DEP)

COUNTY OF MONTGOMERY, et al.

Defendants. -------------------------------------------------------------------

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:

KEACH LAW FIRM One Steuben Place Albany, NY 12207

ELMER R. KEACH III, ESQ.

BERANBAUM, MENKEN LAW FIRM 3 New York Plaza New York, New York 10004

JASON J. ROZGER, ESQ.

FOR DEFENDANTS:

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP 150 East 42nd Street New York, New York 10017-5639

JOSEPH L. FRANCOEUR, ESQ. THERESA MARANGAS, ESQ.

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER

Currently pending before the court in connection with this civil rights

action is a discovery dispute involving four separate and discrete issues.

Following the submission by the parties of letter briefs and attachments other materials relating to the questions raised, a verbal ruling was issued on February 12, 2004 during a digitally recorded telephone conference held on that date, resolving each of the four issues.
Now, upon due deliberation, and incorporating herein by reference the aforementioned oral decision, it is hereby
ORDERED as follows: 1) Plaintiff’s motion for permission to inspect portions of the Montgomery County Jail, pursuant to Rule 34 of the Federal Rules of Civil Procedure, is GRANTED, subject to certain conditions. Plaintiff’s counsel shall be permitted to conduct an inspection of the booking room, and shower and storage area, of the Montgomery County Jail, and to videotape that inspection. The inspection shall be limited in duration to one hour, and no more than five persons, excluding the videographer, shall participate in the inspection on the behalf of the plaintiff. During the inspection, no conversations with inmates or defendants’ employees shall occur, and all questions from the plaintiff’s representations should be directed to defendants’ counsel. Additionally, to the extent practicable videotaping shall not include any inmates or jail personnel. The inspection shall occur on a day, and at a time, to be agreed upon among counsel,
2

and consideration should be given to minimization of the disruption and legitimate safety concerns associated with such an inspection.
2) Based upon the defendants’ agreement to stipulate, for purposes of this action, that the procedures and/or practices currently in effect at the Montgomery County Jail regarding the booking, admission and searching of pretrial detainees at the facility are the same as those in existence and testified to by former jail administrator John Pecora prior to his leaving the county’s employ in or about August of 2003, plaintiff’s request for an order compelling the production of a further Rule 30(b)(6) deposition witness on behalf of the County is hereby DENIED.
3) Defendants’ request for a protective order limiting the plaintiff in his ability to conduct depositions in this action is DENIED, without prejudice.
4) Plaintiff’s application for an award of costs associated with the instant motion and the Rule 30(b)(6) deposition of Jeffrey Smith is DENIED, without prejudice.
3

5) The clerk is directed to promptly forward copies of this order to counsel for the parties, both electronically and by first class mail.

Dated:

February 17, 2004 Syracuse, New York

4

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PAUL MARRIOTT, Both Individually, and on Behalf of a Class of Others Similarly Situated; BARBARA DAVIS; and ANDY RIVERA;

Plaintiffs, vs

5:03-CV-531

COUNTY OF MONTGOMERY; MONTGOMERY

COUNTY SHERIFF'S DEPARTMENT; MICHAEL

AMATO, Individually, and as Sheriff of the County

of Montgomery; JEFFREY SMITH, Individually, and

as Undersheriff of the County of Montgomery;

KEVIN SNELL, Individually, and as former Undersheriff

of the County of Montgomery; JOHN PECORA,

Individually, and as Jail Administrator in the Montgomery

County Sheriff's Department; and SUE BUDDLES,

Individually, and as Lieutenant in the Montgomery

County Sheriff's Department,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES:

OF COUNSEL:

BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP
Attorneys for Plaintiffs 3 New York Plaza New York, NY 10004
and 32nd Floor 80 Pine Street New York, New York 10005

BRUCE E. MENKEN, ESQ. JASON J. ROZGER, ESQ.

ELMER R. KEACH, III, ESQ. Attorney for Plaintiffs One Steuben Place Albany, New York 12207

MASON LAW FIRM Attorney for Plaintiffs Suite 500 1225 19th Street N.W. Washington, DC 20036

GARY E. MASON, ESQ. CHARLES A. SCHNEIDER, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants 677 Broadway, 9th Floor Albany, New York 12207
and 150 East 42nd Street New York, New York 10017-5639

THERESA B. MARANGAS, ESQ. THOMAS W. HYLAND, ESQ. JOSEPH L. FRANCOEUR, ESQ.

DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER and
PERMANENT INJUNCTION

I. INTRODUCTION

Plaintiffs Paul Marriott ("Marriott"), Barbara Davis ("Davis"), and Andy Rivera

("Rivera") (collectively "plaintiffs") filed suit individually and on behalf of a class of others

similarly situated, alleging that the policy of the Montgomery County Jail ("the Jail") providing

for the search of all persons admitted to the Jail constitutes a strip search in violation of the

Constitution of the United States. Plaintiffs' motion to certify the class pursuant to Rule 23

was granted on March 25, 2005, and defendants were preliminarily enjoined from conducting

the search at issue. Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005)

("Marriott I"). The Second Circuit affirmed on November 22, 2005. Marriott v. County of

Montgomery, No. 05-1590-CV, 2005 WL 3117194, at *1 (2d Cir. Nov. 22, 2005) (“Marriott II”).

On October 14, 2005, defendants' motion to dismiss plaintiffs' complaint against

defendant Montgomery County Sheriff's Department and defendants Michael Amato ("Sheriff

Amato"), Jeffrey Smith ("Smith"), Kevin Snell ("Snell"), John Pecora ("Pecora"), and Sue

Buddles ("Buddles") in their official capacities was granted, as the County of Montgomery

("the County") is liable for the acts of the Montgomery County Sheriff's Department and the

- 2 -

above defendants in their official capacities as employees of the County.1 The claims against Sheriff Amato, Smith, Snell, Pecora, and Buddles in their individual capacities remain. Additionally, defendants' motion for partial summary judgment dismissing plaintiffs' claims for compensatory damages, punitive damages, and attorney fees was denied.2
Plaintiffs, on behalf of the certified class, now move for partial summary judgment against the County and Sheriff Amato on the issue of liability. They also seek a permanent injunction against defendants, as well as interim attorneys' fees for plaintiffs' counsel. Further, plaintiffs move to preclude the testimony of defendants' expert witness, George M. Camp ("Camp"). Defendants oppose, and move for a certificate of appealability, pursuant to 28 U.S.C. § 1292(b), regarding the October 14, 2005, denial of their motion for partial summary judgment dismissing plaintiffs' claims for compensatory damages, punitive damages, and attorney fees. Plaintiffs oppose.
Oral argument was heard on December 15, 2005, in Utica, New York. Decision was reserved. II. FACTS
The Jail has a specific, written policy that provides procedures for admitting/booking inmates into the Jail. This admissions policy, which has been in effect since July 1, 1996, provides for an initial pat-down search of admittees upon their entrance into the facility. (See generally Docket No. 90, Pls.' Ex. D, ¶ 12.) The Jail has a separate policy which defines the
1 A summ ary order was entered on the record pursuant to the oral decision rendered on October 14, 2005.
2 Defendants' motion to dismiss the claim for punitive damages was denied without prejudice. - 3 -

different types of searches that may be conducted by a Corrections Officer ("CO") and
delineates the circumstances in which each search should be used.
Upon a determination that an admittee would be housed at the Jail (i.e., would not
make bail), the admissions policy provides for an officer to facilitate the admittees' change
from street clothes into Jail attire, as follows:
the booking officer will escort the inmate to the shower area where the inmate will disrobe and place all clothes in the bag provided by the officer, and be required to take a shower. A. All persons and personal property shall be searched in accordance to the law. Solely to prevent the introduction of contraband to the facility . . .
Id. Defendants refer to this portion of the admission process as a "change-out" procedure.
Pursuant to the "change-out" procedure, when an admittee was being processed for housing
at the Jail, a CO (who is the same sex as the admittee) directs the admittee to remove his or
her clothing and place it in a bag; the admittee must then shower. During the "change-out,"
the CO would conduct a visual inspection of the admittee's naked body. (Docket No. 90, Pls.'
Ex. I, Pecora Dep. at 42, 65.)3 After showering, the admittee dried off, then donned the prison
garb that was provided. The admissions policy, hence the “change-out” procedure, applies to
everyone who is admitted to the Jail.
3 The true purpose of the visual inspection of the admittee's naked body is not clear. Defendant Pecora, a Jail A dm inistrator at the relevant times, testifie d th at COs view ed the naked inmate to see if there were any gang tattoos indicating a gang affiliation. (Docket No. 90, Pls.' Ex. H, Pecora Dep. at 12223, 126-35; Ex. I, Pecora Dep. at 58-59.) Other COs testified that in addition to noting any tattoos, the purpose of the "change-out" was to prevent the introduction of contraband into the Jail. (Docket No. 90, Pls.' Ex. K, Denton Dep. at 35-36, 51-52; Ex. J, Buddles Dep. at 34-35; Ex. N, Robinson Dep. at 76, 79; Ex. M, Hurd Dep. at 42.) Another CO testified that the purpose of the "change-out" was for hygiene, not to detect contraband or tattoos. (Docket No. 90, Pls.' Ex. L, Gardner Dep. at 57.)
Thankfully, the analysis of today's motion does not require a determination of the true purpose of the "change-out." Analysis turns on the nature of the "change-out," and the fact that it was the standard procedure for every admittee that was housed at the Jail. What is important is that each admittee was requ ired to remove his or her clothing and allow a C O to view his or her naked body absent reason ab le suspicion; wha t ea ch CO believed the purpose of the "chan ge -out" to be is non -determinative of this motion.
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The representative plaintiffs in this case - Marriott, Davis, and Rivera - were all arrested on misdemeanor charges and subjected to the written Jail "change-out" procedure.4
While Marriott and Davis allege that in addition to the shower and visual inspection of their
naked bodies, they were directed to submit to various commands while naked, including
bending over in front of the CO and spreading the lobes of their buttocks, at a minimum, they
all were forced to remove their clothing and shower in view of the CO conducting their
"change-out" procedure. They brought suit on behalf of themselves, as well as those similarly
situated, claiming that the "change-out" procedure was an unconstitutional policy, practice,
and custom of conducting strip searches of admittees arrested for misdemeanor offenses,
absent reasonable suspicion that the admittee was concealing weapons or contraband. They
sought class certification pursuant to Federal Rule of Civil Procedure 23, as well as a
preliminary injunction enjoining defendants from performing the "change-out" procedure
absent reasonable suspicion. Defendants cross-moved for summary judgment.
On March 25, 2005, defendants' cross-motion for summary judgment was denied, and plaintiffs' motion for class certification was granted.5 See Marriott I, 227 F.R.D. 159. The
4 Marriott was admitted to the Jail on September 13, 2001, on misdemeanor Agriculture and Markets violations relating to failure to feed and water five horses; Davis was admitted on May 2, 2001, based on a civil family court warrant, after missing a court date in Family Court; and Rivera was admitted on June 1, 2004, on a misdemeanor second degree aggravated harassment charge.
Additionally, non-party Jacqueline Ashline ("Ashline") agreed to serve as a named plaintiff and class representative. On April 6, 2001, she was brought to the Jail as a pre-trial detainee; she was charged with driving while intoxicated, a Vehicle and Traffic Law offense. After being fingerprinted, she was taken by a female CO to the shower room. The CO required her to remove all of her clothing and take a shower. She complied. The CO w atched Ashline disrobe and shower. After showering, Ashline dried off. The CO left the show er room and th en passed a Jail uniform to A shline throu gh a w indow in the room.
5 Plaintiffs met the numerosity, comm onality, typicality, and adequacy of representation prerequisites of Rule 23(a), as well as the requirements for certification of Rule 23(b)(2) and 23(b)(3). M arrio tt I, 227 F.R.D. at 171-73.
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Jail's "change-out" policy was found to be a strip search. Id. at 175. Plaintiffs' certified class
was defined as follows:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were or will be strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriff’s Department and the County of Montgomery. The class period commences on April 29, 2000, and extends to the date on which the Montgomery County Sheriff’s Department and/or the County of Montgomery are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the proposed class are Defendants, and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Id. Further, as the "change-out" procedure was tantamount to a strip search, and conducted
absent reasonable suspicion, defendants were
PRELIMINARILY ENJOINED from conducting a strip search, as set forth in the Jail's change-out procedure, with regard to all persons being placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, without reasonable suspicion that such persons are secreting contraband and/or weapons.
Id. The Second Circuit affirmed, holding that "plaintiffs have shown a substantial likelihood of
establishing that the Jail's current strip search policy is unconstitutional." Marriott II, 2005 WL
3117194, at *1.
III. DISCUSSION
A. Plaintiffs' Motion for Partial Summary Judgment
When considering a motion for summary judgment, evidence is viewed in the light
most favorable to the non-moving party, and all reasonable inferences are drawn in her favor.
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Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). It is well settled that summary judgment must be granted only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999). An issue is "genuine" if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, 477 U.S. at 248-49, 106 S. Ct. at 2510-11.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact, as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has met this burden, the party opposing the motion for summary judgment must produce specific evidence establishing the existence of a genuine factual dispute that a reasonable jury could find in its favor. Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. It cannot rest upon "mere allegations or denials" asserted in its pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1999).
To withstand a summary judgment motion, sufficient evidence must exist upon which reasonable factfinders could resolve the issue in favor of the nonmovant. Liberty Lobby, 477 U.S. at 248-49, 106 S. Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Thus, summary judgment is proper where there is "little or no evidence . . . in support
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of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 122324 (2d Cir. 1994) (citations omitted).
Plaintiffs seek partial summary judgment, contending that the undisputed facts in this case show that prior to the issuance of the preliminary injunction and pursuant to the policy of the County, all arrestees admitted into the Jail were strip searched upon admission, absent reasonable suspicion. As the Jail's "change-out" policy is tantamount to a strip search, plaintiffs argue that partial summary judgment on the issue of liability against the County and Sheriff Amato is proper.
Defendants oppose and claim that there are issues of material fact as to the actual policy and procedure of the "change-out" that preclude summary judgment. They allege that the admissions policy, including the "change-out," is constitutional as written, and because the written policies are constitutional, there is insufficient evidence to determine the material factual issue of whether a policy and practice of performing unconstitutional inspections of every naked arrestee at admissions existed.
The Second Circuit has repeatedly held that the Fourth Amendment precludes prison officials from performing strip searches and/or body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004); N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004); Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988); and Weber v. Dell, 804 F.2d 796,
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802 (2d Cir. 1986).6 "[I]ndiscriminate strip-searching of misdemeanor arrestees is unconstitutional." Walsh, 849 F.2d at 70. This is established federal law.
In Marriott I, it was determined that defendants' "change-out" procedure was tantamount to a strip search. 227 F.R.D. at 169 ("This procedure squarely fits both the common and legal definitions of strip search . . . Using different terminology, such as changeout, does not change the observation of a naked admittee to anything other than what it is - a strip search.").7 Given that defendants' strip search procedure was applied to each misdemeanor arrestee, without an individual determination of reasonable suspicion, both Marriott I and the Second Circuit, in affirming the Marriott I decision, found that there was a "strong likelihood that the strip search at issue here, conducted as a matter of course without reasonable suspicion, will be found violative of the Fourth Amendment under Weber and its progeny." Id. at 174 (citations omitted); see also Marriott II, 2005 WL 3117194, at *1 ("plaintiffs have shown a substantial likelihood of establishing that the Jail's current strip search policy is unconstitutional").
Here, plaintiffs move for partial summary judgment as to liability, contending that defendants' strip search policy, which was applied to all arrestees that were admitted to the Jail, absent any determination of reasonable suspicion, is unconstitutional. They contend that
6 Indeed, in N .G ., the Seco nd Circuit noted that all circuits that have considered this issue have reached the same conclusion, i.e., that strip searches performed on arrestees confined for minor offense s, abse nt reas ona ble sus picion, are u nco nstitutional. 382 F .3d at 23 2 (listing c ase s).
7 "'Strip search' is often used as an um brella term that applies to all inspections of naked individuals." N.G., 382 F.3d at 228 n.4. Both the comm on and legal definitions of strip search show that it is a search conducted after a person's clothes have been removed. The comm on definition of strip search is "to search (a person) by requiring rem oval of the clothes." W ebster's New W orld Dictionary 1328 (Victoria Neufeldt & David B. Guralnik, eds., 3d College ed. 1988). As a legal term, strip search means "[a] search of a person conducted after that person's clothes have been removed, the purpose usu[ally] being to find any contraband the person m ight be hiding." Black's Law Dictionary 1378-79 (8th ed. 2004).
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there are no issues of material fact as to the unconstitutionality of the strip search, as (1) all arrestees that were admitted to the Jail (2) were required to remove their clothing in front of a CO and take a shower, (3) regardless of the nature of their crime and without any determination that there was a reasonable suspicion that they possessed contraband. Plaintiffs allege that defendants have admitted to these facts, and under Weber and its progeny, defendants' strip search policy is unconstitutional.
Plaintiffs are correct that defendants have admitted those very facts that make their policy unconstitutional. In various stages of the litigation, defendants have admitted that the "change-out" policy applied to all admittees, and that during the procedure, arrestees were required to remove their clothes in front of a CO and shower. In their papers, defendants stated that "[t]he arrestee is asked to disrobe in front of the officer and either place their clothes in a property bag or hand them to the booking officer and to take a shower . . . An Officer of the same sex, remains in the room during disrobing." (Docket No. 109, Defs.' Mem. Supp. Summ. J. at 3.) Pecora, a former Jail Administrator and defendants' designated Rule 30(b)(6) deponent, testified at different times that during the "change-out" procedure, the CO would do a visual inspection of the arrestee's body.8 (See, e.g., Docket No. 90, Pls.' Ex. I, Pecora Dep. at 42, 65.) Further, defendants' counsel gave the following account at oral argument:
8 In th eir Mem oran du m oppo sing sum mary judg men t, defen da nts attempted to d iscredit the ir own sworn Rule 30(b)(6) deponent, claiming that his "knowledge is not the best evidence as it is secondhand." (Docket No. 207, Defs.' Opp. M em . at 12.) H oweve r, as a Rule 30 (b)(6 ) w itness, Peco ra's tes tim on y is b ind ing up on de fen da nts . See e.g., Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 26 8 (2 d C ir. 19 99 ); Sabre v. First Dominion Capital, LLC, No. 01CIV2145BSJHBP, 2001 WL 1590544, at *1 (S.D .N.Y. D ec. 12 , 2001 ) ("A 30 (b)(6) w itness testifies as a rep resen tative of the en tity, his ans we rs bind th e entity and he is respon sible fo r providing all the relevant info rm ation know n or reason ab ly ava ilable to the entity") (citations a nd q uotations om itted).
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The Court: "Now . . . let me understand, the strip search we're talking about in this case is they take off their clothes, put them in a basket, and take a shower while being observed by the corrections officer of the same sex; is that right?"
Mr. Francoeur:9 "That's correct." The Court: "[The arrestees are] in the nude?" Mr. Francoeur: "Correct." The Court: "And how close is the guard to the person taking the shower in the nude?" Mr. Francoeur: "Fairly close. Four, five feet, I believe . . . "
(Docket No. 171, Oral Argument Tr. 5-6, Oct. 22, 2004.) Additionally, in their depositions, the
COs all agreed that they were present when an admittee removed his or her clothing, and the admittee's naked body was visible to them.10
However, despite defendants' repeated admissions that the "change-out" procedure
consisted of requiring all admittees, without particularized suspicion, to submit to a visual
examination of their naked body, as well as a shower, they now claim that the "change-out"
did not require the admittee to be naked. They claim that the admissions policy containing the
"change-out" procedure is constitutional as written, and that summary judgment is not
appropriate.
As detailed above, defendants' "change-out" policy is contained in 12(A) of the
admissions procedure, and specifies that when arrestees do not make bail,
the booking officer will escort the inmate to the shower area where the inmate will disrobe and place all clothes in the bag provided by the officer, and be required to take a shower. A. All persons and personal property shall be searched in accordance to the law. Solely to prevent the introduction of contraband to the facility . . .
9 Mr. Francoeur argued for defendants at this motion argum ent. 10 A m ore d etaile d a cc ou nt of the CO s' b eh av ior du ring th e "ch an ge -out" proce du re is fo un d in M arrio tt I, 227 F.R.D. at 164-66.
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(Docket No. 90, Pls.' Ex. D, ¶ 12.) Defendants maintain that because the written policy doesn't involve either a command for the arrestee to undress completely or a command for the CO to inspect the naked arrestee, that the policy is constitutional.
Defendants' argument is seriously flawed. First, constitutional analysis of a procedure does not stop with analysis of the written policy. Both parties here have provided ample evidence that whatever the written policy stated, the procedure that was followed in fact by the COs required all admittees to remove their clothes, submit to a visual examination by the CO conducting the "change out," and shower, without the CO making any individual determination that the arrestee possessed contraband. Constitutional words cannot erase unconstitutional conduct.
Second, it is far from clear that the admissions policy is constitutional as written. The policy calls for the arrestee to "disrobe and place all clothes in the bag provided by the officer, and . . . take a shower." Id. In its brief affirmance, the Second Circuit questioned the legality of the written jail policy, writing that "the written Jail policy itself appears to authorize such searches without reasonable suspicion, and Jail officers testified at their depositions to having often conducted them." Marriott II, 2005 WL 3117194, at *1. Defendants attempt to stretch reality by arguing in their papers that it is unclear that any arrestee ever removed all of their clothes and claiming that the arrestees were allowed to remain in their underwear, provided that the underwear was white.11 This assertion contravenes all of the prior testimony given by defendants and their officials - no CO, Jail administrator, or other official ever testified about arrestees and their white underwear. Further, it is ridiculous to claim that an
11 De fen da nts no w claim tha t on ly tho se arre ste es we arin g n on -w hite u nd erw ea r w ere forc ed to fully disrobe.
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arrestee would shower without removing his or her underwear. The plain language of the policy - disrobe completely and shower, without any individualized determination that the arrestee is in possession of contraband - evinces an unconstitutional search. Defendants' arguments to the contrary are without merit.
Finally, defendants highlight the fact that their COs had different interpretations of the purpose of the "change-out" and that the extent of the visual inspection differed amongst the COs. They repeatedly claim that summary judgment is inappropriate, citing the language of Marriott I stating that "questions of fact exist as to what the policy and practice is of the Jail with regard to the change-out." 227 F.R.D. at 169. However, they conveniently ignore the language in the following paragraphs that negate this very argument - "[t]he differences . . . in the extent and purpose of the change-out procedure do not change the fact that the admittees are required to strip naked in front of a CO and submit to the observation of their body by a CO." Id. (emphasis added). For constitutional analysis, it does not matter why each CO believed he or she was conducting the strip search; it matters only that every admittee was subjected to the strip search. Period. No questions of material fact remain. All admittees had to remove their clothing and allow their naked bodies to be viewed by a CO. Under Weber and its settled progeny, such conduct is unconstitutional.12
12 Plaintiffs move to exclude the testimony of defendants’ expert witness, David Camp, who was retained to “render expert opinion(s) regarding the constitutionality of certain conditions of confinement” at the Ja il. (Dock et No . 203, P ls.’ Ex. N to Kea ch A ffirm ation, Ru le 26 E xpe rt Rep ort at 1.)
Ex pe rt w itnes se s ca nn ot te stify a s to is su es of law . See e.g., United States v. Bilzerian, 926 F.2d 12 85 , 12 94 (2d C ir. 199 1). A review of C am p’s proffered te stim on y provided by defend an ts in the ir response papers illustrates that Camp’s testimony on this issue would be irrelevant. It has been determ ined that the C ounty’s “change out” policy is tantamount to a strip search. See Mariott I, 227 F.R.D. at 169. Whe ther this is an uncon stitu tiona l strip sea rch is a que stion of law ; thus, Cam p’s testimony is unnecessary. Plaintiffs’ motion to preclude Camp’s testimony will be granted.
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The evidence submitted by the parties shows that there are no questions of material fact remaining on this issue. Defendants' "change-out" policy is tantamount to a strip search. The settled law of this Circuit requires particularized suspicion before strip searching any person arrested for a misdemeanor or other minor offense. Welsh, 849 F.2d at 69. As defendants’ policy does not require a finding of reasonable suspicion before conducting the "change-out" (strip search), and in fact mandated a strip search of all misdemeanor arrestees admitted into the Jail, defendants' policy is unconstitutional.
The County is liable for an unconstitutional policy when that policy was the "moving force" of the violation of a constitutional right. Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2038-39 (1978). As discussed in Marriott I, defendants are not entitled to the qualified immunity defense. 227 F.R.D. at 170. Plaintiffs' motion for partial summary judgment on the issue of the liability of the County will be granted.13
B. Plaintiffs’ Motion for a Permanent Injunction Plaintiffs move for a permanent injunction identical to the preliminary injunction issued in Marriott I, claiming that because the County’s “change out” policy is an unconstitutional strip search, they have demonstrated actual success on the merits. Defendants oppose this motion, alleging that it would be premature to issue a permanent injunction because material facts remain about the constitutionality of their “change out”
13 Plaintiffs ha ve as ke d fo r su m m ary judg m en t on the issu e o f liability on the pa rt of the C ou nty and Sh eriff Amato. How ever, Sheriff Amato, along with defendants Sm ith, Snell, Pecora, and Buddles, was released from liability in his official capacity. Plaintiffs have offered no further guidance as to why sum ma ry judgm ent would be appropriate for Sheriff Amato, in his individual capacity, at this time. Thus, summ ary judgment for the liability of Sheriff Amato is not appropriate.
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policy. Because plaintiffs are entitled to partial summary judgment against the County for liability regarding the unconstitutional “change out” policy, their motion for a permanent injunction will be granted.
The standard for a permanent injunction is essentially the same as the standard for a preliminary injunction, except that the moving party, instead of showing a likelihood of success on the merits must show actual success on the merits. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 1404 (1987) (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 392, 101 S. Ct. 1830, 1832 (1981)). A preliminary injunction should be issued only where the party seeking such relief shows “that it is likely to suffer irreparable injury if relief is denied [and] also that there is either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them fair ground for litigation, with a balance of hardships tipping decidedly in the [movant’s] favor.” Proctor & Gamble Co. v. Chesebrough-Pond’s Inc., 747 F.2d 114, 118 (2d Cir. 1984); Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999); Eng v. Smith, 849 F.2d 80, 8182 (2d Cir. 1988). Where "'a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-groundfor-litigation standard should not be applied.'" Brown v. Giuliani, 158 F.R.D. 251, 264 (E.D.N.Y. 1994) (quoting Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993) (internal quotation omitted)); Connecticut Dep't of Envtl. Protection v. OSHA, 356 F.3d 226, 230-31 (2d Cir. 2004) (noting that where a statutory or regulatory scheme is challenged, the more rigorous likelihood of success standard must be met).
Irreparable harm must be imminent, not remote or speculative. Brown, 158 F.R.D. at 264 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)).
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Where monetary damages cannot compensate for the injury, the harm is irreparable. Id. (citing Studebaker Corp. v. Gittlin, 360 F.2d 692 (2d Cir. 1966)). Further, "the alleged violation of a constitutional right triggers a finding of irreparable injury." Conn. Dep't of Envtl. Prot., 356 F.3d at 231.
Here, plaintiffs, as a certified class, have standing to seek prospective injunctive relief. Marriott I, 227 F.R.D. at 174. As they allege a violation of a constitutional right, the harm is irreparable. Id. By succeeding on their motion for partial summary judgment, plaintiffs have also demonstrated actual success on the merits of their claim - as previously discussed, the “change out” is an unconstitutional strip search, violative of the Fourth Amendment. Thus, plaintiffs have demonstrated that a permanent injunction is warranted.
C. Plaintiffs’ Motion for Interim Attorneys’ Fees In 42 U.S.C. § 1988 (“section 1988"), those civil rights plaintiffs who are considered the prevailing party are provided an award of reasonable attorneys’ fees. Section 1988 specifies that “[i]n any action or proceeding to enforce a provision of section[ ] . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the cost.” 42 U.S.C. § 1988(b). “[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar v. Hobby, 506 U.S. 103, 111, 113 S. Ct. 566, 573 (1992). This can occur without the plaintiff obtaining a favorable final judgment following a full trial on the merits. See Hanrahan v. Hampton, 446 U.S. 754, 756-57, 100 S. Ct. 1987, 1988-89 (1980). All the plaintiff must do to qualify as a prevailing party is to “obtain an enforceable judgment against the defendant from whom fees are sought.” Farrar, 506 U.S. at 111, 113 S. Ct. at 573 (citing Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 2675 (1987).
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“[A] judgment - declaratory or otherwise - ‘will constitute relief, for purposes of § 1988, if and only if, it affects the behavior of the defendant toward the plaintiff.’” Id. at 506 U.S. at 110, 113 S. Ct. at 572 (quoting Rhodes v. Stewart, 488 U.S. 1, 4, 109 S. Ct. 202, 203 (1988). Thus, “judicial action other than a judgment on the merits or a consent decree can support an award of attorneys fees, so long as such action comes with it sufficient judicial imprimatur.” Roberson v. Giuliani, 346 F.3d 75, 81 (2d Cir. 2003). The Second Circuit has held that “[w]hen a party receives a . . . preliminary injunction but never obtains a final judgment, attorney’s fees are proper if the court’s action in granting the preliminary injunction is governed by its assessment of the merits.” Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997) (citing LaRouche v. Kezer, 20 F.3d 68, 75 (2d Cir. 1994)).
Here, plaintiffs move, pursuant to 42 U.S.C. § 1988(b), for interim attorneys’ fees for work performed up to March 25, 2005, and if their motions for partial summary judgment and a permanent injunction are granted, from March 25, 2005, to the present. They allege that they are the prevailing party because their motions for class certification and preliminary injunction were granted in Marriott I; moreover, if their current motions for partial summary judgment and a permanent injunction are granted, they argue they have achieved actual success on the merits of those claims, which would entitle them to attorneys’ fees for their work performed to the present date. Defendants oppose, claiming that plaintiffs’ application for interim attorneys’ fees is premature. They argue that (at the time of filing response papers) an appeal of the preliminary injunction is pending, and that the grant of a preliminary injunction was not based on the merits. Thus, they claim that plaintiffs’ motion for interim attorneys’ fees should be denied.
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Plaintiffs must be considered the prevailing party. As required by Farrar, plaintiffs have obtained enforceable judgments, in the form of injunctions, against the defendants. In Marriott I, defendants were preliminarily enjoined from conducting the “change out” procedure, based on a “strong likelihood that the strip search at issue here, conducted as a matter of course without reasonable suspicion, will be found violative of the Fourth Amendment.” 227 F.R.D. at 174. The Second Circuit affirmed the injunction. See Marriott II, 2005 WL 3117194, at *1. On the same day Marriott I was decided, defendants altered their “change out” procedure, such that “[a]t no time will an inmate’s naked body be viewed without reasonable suspicion that the inmate possesses contraband or a weapon.” (Docket No. 203, Pls.’ Ex. K.) This is an obvious change in defendants’ behavior towards prospective members of plaintiffs’ class.
Moreover, plaintiffs have today demonstrated actual success on the merits of their claim that defendants’ “change out” procedure is an unconstitutional violation of the Fourth Amendment’s prohibition against unreasonable searches. They have proved that they are entitled to partial summary judgment for liability against the County, and that a permanent injunction against defendants is necessary. Plaintiffs have obtained multiple enforceable judgments against defendants on the merits of their claim. Therefore, under 42 U.S.C. § 1988(b), they are considered a prevailing party and are entitled to an interim award of attorneys’ fees against the County for the work they have performed to date.
D. Defendants’ Motion for a Certificate of Appealability Defendants have also filed a separate motion seeking a certificate of appealability pursuant to 28 U.S.C. § 1292(b), regarding the October 14, 2005, Order denying their motion for partial summary judgment dismissing plaintiffs' claims for compensatory damages, punitive
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damages, and attorney fees. Plaintiffs oppose, alleging that defendants cannot demonstrate
any of the requirements for certification under section 1292(b), and further claiming that
defendants’ motion for certification is untimely.
A party seeking leave to appeal a district court’s interlocutory order, pursuant to
section 1292(b), must first obtain certification from that court. Traub v. Cornell Univ., No. 94
CV 502, 1999 WL 224804, at *2 (N.D.N.Y. Apr. 12, 1999); Gilbert v. Seton Hall Univ., No. 94
CV 1534(SJ), 2001 WL 1602167, at *2 (E.D.N.Y. Nov. 27, 2001). In order to certify, the
district court must find: (1) the order “involves a controlling question of law”; (2) “as to which
there is substantial ground for difference of opinion”; and that (3) “appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).14 “District
courts have substantial discretion in deciding whether to certify a question for interlocutory
appeal, see Brown v. City of Oneonta, 916 F. Supp. 176, 180 (N.D.N.Y. 1966) (citing, inter
alia, D’Ippolito v. Cities Serv. Co., 374 F.2d 643, 649 (2d Cir. 1967)), and “should ‘exercise
great care in making a [section] 1292(b) certification,’” Traub, 1999 WL 224804, at *2 (quoting
Westwood Pharms., Inc. v. Nat’l Fuel Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir. 1992)). Only
“exceptional circumstances [will] justify a departure from the basic policy of postponing
14 Section 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such orde r, if application is m ade to it within ten d ays a fter the entry o f the orde r: Provided, however, Tha t ap plic ation for an ap pe al h er eu nd er sh all n ot sta y p ro ce ed ing s in the district court unless the district jud ge or the Cou rt of App ea ls or a judge the reof shall so order. Id.
- 19 -

appellate review until after the entry of a final judgment.” Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Montonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 2461 (1978)).
Defendants have not demonstrated any of the criteria for certification for interlocutory appeal. The October 14, 2005, Order denying defendants’ motion for partial summary judgment does not involve controlling questions of law. Furthermore, defendants have not demonstrated that there is a substantial difference of opinion warranting immediate review or that certification would advance the ultimate termination of this action. Accordingly, defendants’ motion for a certificate of appealability will be denied in its entirety. IV. CONCLUSION
Defendants' "change-out" policy, applicable to all admittees without regard to reasonable suspicion, is tantamount to a strip search. As the settled law of this Circuit requires particularized suspicion before strip searching any person arrested for a misdemeanor or other minor offense, defendants' policy is unconstitutional. Thus, plaintiffs are entitled to summary judgment as to the liability of the County.
The plaintiff class has standing to seek and obtain prospective injunctive relief. Because they have demonstrated actual success on the merits of their claim, plaintiffs are also entitled to permanent injunctive relief.
Plaintiffs have obtained multiple enforceable judgments against defendants on the merits of their claim. Therefore, under 42 U.S.C. § 1988(b), they are a prevailing party and are entitled to an interim award of attorneys’ fees for the work they have performed to date.
- 20 -

Defendants have not demonstrated that the October 14, 2005, Order denying defendants’ motion for partial summary judgment as to plaintiffs’ motions for compensatory damages, punitive damages, and attorneys’ fees involves controlling questions of law. Nor have they demonstrated that there is substantial difference of opinion that warrants immediate review, or that certification will advance the ultimate termination of the action. Accordingly, certification for interlocutory appeal is unwarranted.
Therefore, it is ORDERED that 1. Plaintiffs’ motion for partial summary judgment as to the liability of the County is GRANTED; 2. Plaintiffs’ motion to preclude the testimony of George M. Camp is GRANTED; 3. Plaintiffs’ motion for a permanent injunction is GRANTED; 4. Defendants are PERMANENTLY ENJOINED from conducting a strip search, as set forth in the Jail’s “change out” procedure, with regard to all persons being placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, without reasonable suspicion that such persons are secreting contraband and/or weapons; 5. a. Plaintiffs’ motion for an interim award of attorneys’ fees and expenses against the County is GRANTED;
b. Plaintiffs shall file and serve, on or before April 26, 2006, an appropriate application for interim attorneys’ fees and expenses for work performed up to April 26, 2006;
- 21 -

c. Defendants may file and serve a response on or before May 10, 2006; d. The application will be taken on submit; and 6. Defendants’ motion for a certificate of appealability is DENIED. IT IS SO ORDERED. Dated: April 12, 2006 Utica, New York.
- 22 -

 
 .~--

- ------------------------------------

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
PAUL MARRIOTT, both individually and on behalf of a class of others similarly situated,
Plaintiff, -vCOUNTY OF MONTGOMERY, et aI.,
Defendants.

U. S. DISTRICT CO
N. D. OF N. y~ ~.
FILED 37/
OCT 2 4 2 1 -

AT

O'CLOCK M

LAWRENCE K. BAERMAN. Clerk

UTICA

5:03-CV-531

APPEARANCES:

OF COUNSEL:

ELMER R. KEACH, III, ESQ. Attorney for Plaintiff One Steuben Place Albany, NY 12207

BERANBAUM, MENKEN & BEN-ASHER, LLP Attorneys for Plaintiff 3 New York Plaza New York, NY 10004

JASON J. ROZGER, ESQ.

MASON LAW FIRM Attorneys for Plaintiff 1225 Nineteenth Street, N.W., Suite 600 Washington, DC 20036

GARY E. MASON, ESQ.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
Attorneys for Defendants 150 East 42d Street New York, NY 10017-5639

THOMAS W. HYLAND, ESQ.

DAVID N. HURD United States District Judge

ORDER Pursuant to the oral decision of the Court, entered into the record after hearing oral argument on October 24,2003, in Albany, New York, it is hereby ORDERED that 1. Defendants' motion to dismiss is DENIED; 2. Defendants' motion to deny class status is DENIED, without prejudice; 3. Plaintiff's motion for a preliminary injunction is DENIED; and 4. Defendant shall file and serve an answer to the complaint on or before November 7,2003. IT IS SO ORDERED.
Dated: October 24, 2003 Utica, New York.
-2 -

 
 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-----------------------------------------x
PAUL MARRIOT, ET AL,

Index No. 03-CV-053I

Plaintiffs, - against THE COUNTY OF MONTGOMERY, ET AL,

STIPULATION AND PROTECTIVE ORDER ON INMATE ADMISSION RECORDS

Defendants.

DNH/DEP

-----------------------------------------x

WHEREAS, the parties are engaged in discovery in the above-captioned action that involves the exchange of infonnation and the production of documents which may contain personal or otherwise confidential infonnation that may be the subject of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties and their respective attorneys as follows:
I. Confidential Information. Confidential infonnation shall include the name, address, date of birth, date of arrival at the Montgomery County Correctional Facility (MCCF), social security number, name of next of kin, phone number of next of kin and offense charged, from April 2000 to the present for all pretrial detainees charged with misdemeanors, violations, violation of parole, violation of probation, or held in civil or family court matters, as contained in the Inmate Admission Records.
2. Application. This Stipulation and Protective Order does not apply to the Inmate Admission Record and the infonnation contained therein, of the named plaintiff, Paul Marriott. In the event a pretrial detainee becomes a named plaintiff, upon actual

33846.1

joinder to this pending action, this Stipulation and Protective Order shall no longer apply to the additional named plaintiff(s) Inmate Admission Record(s) and the information contained therein. 3. Docnments Stamped "CONFIDENTIAL". Defendants' disclosure to plaintiff of the Inmate Admission Records and infonnation contained therein, shall be marked "CONFIDENTIAL" in a manner that will not interfere with the legibility thereof. The defendants shall stamp the Inmate Admission Records as "CONFIDENTIAL" prior to the actual release of the documents. 4. Limitations On Disclosure of Stamped Confidential Documents. Except with the prior written consent of the individual pretrial detainee(s), the individual pretrial detainee(s) stamped confidential Inmate Admission Record(s), or the infonnation contained therein, may NOT be disclosed to any person, except for the attorneys for the parties and those employees and agents working directly with the attorneys, for usc only in connection with this action. 5. Conditions on Disclosure. Any person to whom infonnation provided under this order is disclosed must sign a statement agreeing to be bound by this Stipulation and Protective Order. The signed statement, as annexed hereto as Exhibit "A" shall contain:
(a) a recital that the signatory has read and understands this order; (b) a recital that the signatory understands that unauthorized disclosures of
the stamped confidential documents constitutes contempt of court. 6. List to be Maintained. Pursuant to the Order of David E. Peebles, U.S. Magistrate
Judge, dated December 23, 2003, plaintiffs counsel must maintain a list of all
33846.1

persons to whom the Inmate Admission Records, and the information contained therein, has been disclosed. 7. Production of List. Upon ten (10) days' advance notice, in writing to the plaintiff, defendants may request a Court Order directing disclosure of a copy of the list of all persons to whom the stamped confidential Inmate Admission Records, or the confidential information contained therein, has been distributed.
Within ten (10) days of service of defendants' request for a Court Order directing disclosure of a copy of the list, plaintiff shall serve, in writing to the Court and defense counsel, the basis for objecting to the disclosure of a copy of the list. 8. Confidential Information in Deposition Transcripts. The attorneys for the parties may, within fifteen (15) days after receiving any deposition transcript, designate pages of the transcript and/or exhibits thereto as confidential, if related to disclosure of the Inmate Admission Record(s) or the information contained therein. Until expiration of the fifteen (15) day period, the entire deposition wiii be treated as subject to protection against disclosure under this Order. If the attorneys for the parties do not timely designate confidential inforn1ation in a deposition relating to the Inmate Admission Records or the information contained therein, then none of the transcript or it exhibits will be treated as confidential. The parties need not redesignate as confidential a document previously so designated. If a timely designation is made, the confidential portions of the transcript and/or exhibits shall be filed under seal separate from the portions and exhibits not so marked. 9. Confidential Infonnation at Trial. The Inmate Admission Records or information contained therein, that has been marked confidential pursuant to this Order, shall
33846.1

continue to be treated as confidential information at trial. The trial Court may detennine how this infonnation and/or documents shall be kept confidential at trial. 10. Filing. The stamped confidential Inmate Admission Records need not be filed with the Clerk, except when required in connection with motions under Rule 56 or other matters pending before the Court. If filed, they shall be filed under seal and shall remain sealed while in the office of the Clerk so long as they retain their status as stamped confidential documents. 11. Client Consultation. Nothing in this Order shall prevent or otherwise restrict counsel from rendering advise to their actual client(s), in the course thereof, relying generally on examination of stamped confidential Inmate Admission Records and infonnation provided therein, provided, however, that in rendering such advice and otherwise communicating with such client(s), counsel shall not make specific disclosure of any item so designated, except to have the client adhere to the procedures set forth in paragraph 5 above. 12. Use. Anyone who obtains access to stamped confidential Inmate Admission Records or information contained therein under this Order shall use the information only for preparation and trial of this litigation and shall not use such information for any other purpose. 13. Non-tennination. The provisions of this Order shall not tenninate at the conclusion of this action. Within thirty (30) days after final conclusion of all aspects of this litigation, stamped confidential Inmate Admission Records and all copies of same (other than unsealed exhibits of records) shall be returned to the defendants or, at the option of defendants, destroyed. All counsel of record shall make certification of
33846.1

compliance herewith and shall deliver the same to counsel for the defendants not more than sixty (60) days after final termination ofthis litigation. 14. Attorneys' Responsibilities. All attorneys of record are responsible for employing reasonable measures to control, consistent with this Order, duplication of, access to, and distribution of copies of stamped confidential documents.

t Dated: February

2004

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLC Attorneys for. Defendants

Bar Roll No.: 511376 One Steuben Place Albany, New York 12207
'R, y!OSKOWITZ, DICKER LLC
I-I L. FRANCOEUR Roll No. 51 1929 150 East 42nd Street New York. New York 10017-5639

33S46.1

BERANBAUM, MENKEN & BEN-ASHER, LLP
Attorneys for Plaintiff
rkr
BRUCE E. MENKEN Bar Roll No.: Three New York Plaza New York, NY 10004
BERANBAUM, ME"N"KEN
&AtBt~ElNe-A's SfHrEPRla.inLtLifPl'
,ESQ
Rot1:: :r K.
~P.~~I;~'l_t"~~'____-G__=
ELMER ROBERT KEACH, III, ESQ.
Bar Roll No.: 601537 Jne Steuben Place I\.lbany, New Yark 12207
\3074.1 13846.1

 
 -------- -------

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
- - - - - - -' - - - - - - - - - - - - - - - - - - - - - - - - -
PAUL MARRIOT, BARBARA DAVIS, and ANDY RIVERA, on behalf of themselves and a certified class of others similarly situated
Plaintiffs,
-v-
THE COUNTY OF MONTGOMERY, MONTGOMERY COUNTY SHERIFF'S DEPARTMENT, MICHAEL AMATO, JEFFREY SMITH, KEVIN SNELL, JOHN PECORA and SUE BUDDLES,
Defendants.

U. 8. DISTRICT COURT tI. D. OF Nt V.
FILED

OCT 142005

AT

O'ClOCK M

LAWRENCE K. SAERMAN. Clerk

UTICA

5:03-CV-531

DAVID N. HURD United States District Judge
ORDER Pursuant to the oral decision entered into the record after hearing oral argument on October 14,2005, in Utica, New York, it is hereby ORDERED that (1) Defendants' motion to limit the type of compensation under the Prison Litigation Reform Act, 42 U.S.C. §1997e(e), is DENIED; (2) Defendants' motion to dismiss the claim for punitive damages is DENIED, without prejudice; and (3) Defendants' motion to dismiss the complaint against the defendant Montgomery County Sheriff's Department and defendants Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora and Sue Buddies in their official capacities is GRANTED as the defendant County of Montgomery is liable for the acts of the Montgomery County Sheriff's Department,

which is not a legal entity, and for the acts of the remaining defendants in their official capacities as employees of the County of Montgomery.
IT IS SO ORDERED. Dated: October 14, 2005
Utica, New York.
-2-

 
 UNITED STATES DISTRlCT COURT FOR THE NORTHERN DISTRlCT OF NEW YORK

PAUL MARRIOTT, BARBARA DAVIS, and ANDY RlVERA, on behalf of themselves and on behalf of a class of others similarly situated, et al.,
Plaintiffs,
v.
THE COUNTY OF MONTGOMERY, et. al.,
Defendants.

No. 03-CV-0531 (DNHlDEP)
u.s. D1STR1CT COURT . ~.D. OF N.Y• . ,~. FILED
NAY 1 S 2007
LAWRENCE K. BAERMAN. Clerk ) UTICA

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT
THIS CASE coming for hearing before the undersigned Judge on April 27, 2007, pursuant to this Court's Preliminary Approval Order in order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the parties is fair, reasonable and adequate, and to address Class Counsel's application for an award of attorneys' fees and costs; and the Class Members being represented by Class Counsel and Defendants being represented by their attorneys;
AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, Plaintiffs' Memoranda of Law and the Supplemental Affirmation submitted by Class Counsel, having received evidence and heard arguments from Class Counsel and the Defendants, and having considered the submissions by Class members, now makes the following determination:

FINDINGS OF FACT 1. This action was commenced on April 29, 2003, as a class action. 2. After years of intensive litigation, including extensive discovery and motion practice before this Court, and including the granting of the Plaintiffs' motions for class certification, preliminary injunction, and partial summary judgment, and as a result of intensive, arm's length negotiations between Class Counsel and Defendants, the parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendants ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the Court on September 22,2006. 3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement. 4. As of the deadline for the filing of objections, only one objection was filed. Given the size of this Settlement, and the notice plan described above, this Court finds that the low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendants. 5. Class Counsel has filed with the Court an affidavit from JoAnn Graff, Senior Project Administrator of Rust Consulting, the Settlement Administrator, declaring that the mailing of the Court·approved notice, consistent with the Notice Plan, has been completed. The Plaintiffs have also filed with the Court affidavits from lead counsel Elmer Keach and Dong He Chang, of I

Partners, the Website Administrator, detailing the publishing of the short fonn notice and settlement website, consistent with the Notice Plan, has been completed. 6. The Court finds that the published notice, mailed notice and Internet posting constitute the best practicable notice of the Fairness Hearing, the proposed Settlement, Class Counsel's application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of New York and any other applicable law. 7. Any persons who wished to be excluded from this Action were provided an opportunity to "opt out" pursuant to the Notice. No members of the Settlement Class requested exclusion from the Settlement. 8. Class Members are bound by the Settlement, the Settlement Agreement and releases contained therein, and the Final Order and Judgment, and do not have any further opportunity to opt-out of the Action. 9. Any class member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs' Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise. 10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal

Rules of Civil Procedure. There are a number of factors which the Court has considered in
affirming this Settlement, including:
11. The liability issues in this case have been vigorously contested.
12. The Court notes that for settlement purposes, this Settlement has the benefit of providing
relief to Class Members now, without further litigation. This Settlement provides Class
Members with substantial monetary benefits.
13. This' Settlement is clearly a byproduct of hard-fought litigation between the parties, and
not a result of any collusion on the part of Class Counselor Counsel for the Defendants.
14. Class Counsel submitted to the Court and served on the Defendants their application for
reasonable attorneys' fees, costs, and expenses consistent with the terms of the Settlement
Agreement. This Court has considered Class Counsel's request and hereby grants the request.
15. The claims procedure established under the Settlement Agreement is fair, a simplified
process, and workable. In any event, the Court will retain jurisdiction to work out any
unanticipated problems.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW
16. This Court has jurisdiction over the parties and the subject matter of this proceeding.
17. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Settlement
Class is certified for purposes of final settlement:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commenced on April 29, 2000 and extended until March 25, 2005. Specifically excluded from the prop0sed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or

asslgnees.
18. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a Class Action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for Class certification under Rule 23 are present. The Class members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class members predominate over individual issues and should be determined in one proceeding with respect to all Class members. The Class Representatives' claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action. 19. The Class Representatives Paul Marriott, Barbara Davis and Andy Rivera are entitled to and are hereby awarded payments of $12,500, $15,000, and $7,500, respectively, in recognition of the efforts they undertook in connection with this lawsuit. 20. The Court grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 21. The Courts finds that the request by Class Counsel for attorneys' fees, costs and expenses is reasonable. , NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 22. The Motion for Final Approval of the Proposed Settlement is GRANTED. 23. The Class Representatives Paul Marriott, Barbara Davis and Andy Rivera are entitled to and are hereby awarded payments of $12,500, $15,000, and $7,500, respectively. 24. The Class Counsel's request for attorneys' fees and expenses is granted.

'-
25. This Action and all claims against the Settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. 26. All Class members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.
IT IS SO ORDERED.

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOTT, BARBARA DAVIS, and ANDY RIVERA, on behalf of themselves and a certified class of others similarly situated,
Plaintiffs, v.
THE COUNTY OF MONTGOMERY, et. al.,
Defendants.

No. 03-CV-0531 (DNH/DEP)

SETTLEMENT AGREEMENT Plaintiffs, by and through their counsel, and Defendants, by and through their counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for settlement of the claims herein described against Defendants. WHEREAS, Plaintiffs filed the above-captioned class action lawsuit alleging that Defendants had violated Plaintiffs' constitutional rights-by illegally strip searching them upon entry into the Montgomery County Correctional Facility. WHEREAS, Defendants deny any wrongdoing or liability of any kind to the individual Plaintiffs or the Class. WliEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation of the facts and law relating to the matters in this litigation. WHEREAS, the Defendants have concluded that settlement is desirable in order to avoid

the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the individual Plaintiffs and Class relating to alleged conduct involved in this litigation.
WHEREAS, Plaintiffs and Class Counsel recognize the costs and risks of prosecution of this litigation, and believe that it is in the interest of the individual Plaintiffs and Class to resolve this litigation, and any and all claims against Defendants, as well as all employees of the County of Montgomery who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
WHEREAS, this action was certified as a class action by the Honorable David N. Hurd, United States District Judge, on March 25, 2005,
WHEREAS, substantial settlement negotiations have taken place between the Parties, including mediation conducted by the Honorable David E. Peebles, United States Magistrate Judge and Michael Young, Esquire of the Judicial Arbitration and Mediation Service, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein.
WHEREAS, Class Counsel believe that this Settlement Agreement offers significant benefits to the individual Plaintiffs and Class and is fair, reasonable, adequate and in the best interest of the individual Plaintiffs and Class.
WHEREAS, this Settlement Agreement is made and entered into by and among Defendants and Plaintiffs Paul Marriott, Barbara Davis and Andy Rivera, individually and on behalf of a national class of similarly situated persons defined as:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor
2

crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commenced on April 29, 2000 and extended until March 25, 2005. Specifically excluded from the proposed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or assignees.
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa.
A. Claim Form. "Claim Form" shall mean a form in substantially the same form as that attached hereto as Exhibit A.
B. Claims Period. "Claims Period" shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date until the date 120 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
C. Class Counsel. "Class Counsel" shall mean: The Law Offices of Elmer Robert Keach, III, PC; Beranbaum Menken Ben-Asher & Bierman, LLP; and The Mason Law Firm, PC.
D. Class Notice. "Class Notice" shall mean the Court-approved form of notice in substantially the same form as Exhibit B.
E. Class Settlement. "Class Settlement" shall mean the tenns provided in this Settlement Agreement.
3

F. Court. "Court" shall mean the United States District Court for the Northern District of New York, The Honorable David N. Hurd presiding, or his duly appointed or designated successor.
G. Defendants. "Defendants" shall mean the County of Montgomery, Michael Amato, John Pecora, Jeffrey Smith, Kevin Snell and Sue Buddies, and shall include all employees of the County of Montgomery who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
H. Defendants' Counsel. "Defendants' Counsel" shall mean Wilson, Elser, Moskowitz, Edelman & Dicker, LLP.
I. Distribution Amount. "Distribution Amount" shall mean the amount available from the Settlement Fund after payment of the costs of notice and administration of the Settlement, attorneys' fees and expenses and incentive awards to class representatives.
J. Effective Date. "Effective Date" shall mean the date the Final Approval Order is issued.
K. Final Approval Hearing. "Final Approval Hearing" shall mean the hearing at which the Court will consider and finally decide whether to enter a Final Order.
L. Final Approval Order. "Final Approval Order" shall mean that Court order that finally certifies the Settlement Class, approves this Settlement Agreement, approves payment of attorneys' fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement, in substantially the same form as Exhibit C.
M. Litigation. "Litigation" shall mean the above-captioned lawsuit pending in the United States District Court for the Northern District ofNew York as No. 03-CV-0531.
N. Mediator. The "Mediator" shall mean The Honorable David E. Peebles, United
4

States Magistrate Judge of the United States District Court for the Northern District of New York.
0. Notice Program. "Notice Program" shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
P. Notice Date. "Notice Date" shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the terms herein.
Q. Objection Date. "Objection Date" shall mean the date ordered by the Court, by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument.
R. Opt-Out Deadline. "Opt-Out Deadline" shall mean 60 days from the mailing of notice, by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the Settlement must complete the acts necessary to properly effect such election to opt out.
S. Opt-Out List. "Opt-Out List" shall mean a written list prepared by the Settlement Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
T. Opt-Out Notice. "Opt-Out Notice" shall mean a Request for Exclusion. U. Parties. "Parties" shall mean the Plaintiffs and Defendants. V. Plaintiffs. "Plaintiffs" shall mean Plaintiffs Paul Marriott, Barbara Davis and Andy Rivera, individually and on behalf of a national class of similarly situated persons defined as:
5

All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commenced on April29, 2000 and extended until March 25, 2005. Specifically excluded from the proposed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or assignees.
W. Preliminary Approval Order. "Preliminary Approval Order" shall mean the order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit D.
X. Release. "Release" shall mean the release described in Section VII herein. Y. Released Claims. "Released Claims" shall mean and include any and all claims or causes of action, in law or in equity, by or on behalf of any and all Plaintiffs (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein. Z. Request for Exclusion. "Request for Exclusion" shall mean any request by any class member for exclusion from the Settlement Class in compliance with Section IV herein. AA. Settlement. "Settlement" shall mean the agreement by the Plaintiff and Defendants to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement. BB. Settlement Administrator. "Settlement Administrator" shall mean the qualified party selected by the Plaintiff and designated and approved by the Court in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. The Defendants shall not have any responsibility for any acts or omissions of the Settlement Administrator.
6

CC. Settlement Agreement. "Settlement Agreement" shall mean this Settlement Agreement, including any amendment hereto agreed to by the parties pursuant to Section X.D hereof, and all the exhibits attached hereto.
DD. Settlement Fund. "Settlement Fund" shall mean a fund; governed by terms of this agreement which shall be placed in an escrow account and utilized to administer the monetary requirements of the Settlement. The Settlement Fund will be established by Class Counsel and entitled the "Montgomery County Correctional Facility Class Action Settlement Fund" and treated as trust fund monies under relevant New York ethical standards.
EE. Settlement Amount. "Settlement Amount" shall mean the amount of Two Million Dollars ($2,000,000.00) to be paid by the Defendants. Notwithstanding anything in this agreement to the contrary, under no circumstances are Defendants to pay more than Two Million Dollars Class counsel also agrees not to represent any class members who opt out nor refer them to new counsel, except to refer them to the New York State Bar Association.
FF. Settlement Website: Class Counsel will establish a website to provide information to settlement class members with a world wide web address of www.mcjsettlement.com.
GG. Admissions Search Policy. "Admissions Search Policy" shall mean the written policy, to be revised by the Defendants as part of this Agreement, to govern the conduct of all searches by Defendants, their agents, and employees, including strip searches, upon a person's entry into the Montgomery County Correctional Facility.
HH. Summary Notice. "Summary Notice" shall mean a notice in substantially the same form as that which appears at Exhibit E.
II. Website Administrator: "Website Administrator" shall mean the qualified party 7

selected by the Plaintiff and designated and approved by the Court in the Preliminary Approval Order to administer the Settlement Website, including implementing the distribution notice and other settlement documentation via the internet. The Defendants shall not have any responsibility for any acts or omissions ofthe Website Administrator.
IT. REQUIRED EVENTS A. Promptly after execution of this Settlement Agreement by all Parties: 1. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit D, which by its terms shall preliminarily approve the terms of the Settlement Agreement and schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Approval Order (in substantially the same form as Exhibit D) approving the Class Settlement, granting Class Counsel's application for fees and expenses, and dismissing the Litigation with prejudice. 2. Class Counsel and Defendants' Counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Approval Order. 3. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Approval Order, Class Counsel and Defendants' Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; provided, however, that in no event shall any Defendants be required to agree to any such cure of the Settlement Agreement that would result in any additional payment to Plaintiffs or materially increase the burden to such Defendants.
8

4. Any disputes regarding the Parties' obligations under this Agreement shall be submitted to the Mediator for mediation and, if the parties are unable to reach an agreement following mediation, resolution with the Mediator's decision shall be binding on the Parties; except for the following:
i. that the Mediator shall have no authority to order the Defendants to pay Plaintiffs any monies beyond the agreed-upon $2,000,000.00 payment;
ii. paragraph 1 of Appendix B, which the parties agree to file under seal with the Court until90 days after the Notice Date, is incorporated herein by reference.
iii. the Mediator shall have no authority to address the terms of the new Admissions Search Policy to be issued no later than September 15, 2006.
5. The parties will issue jointly drafted press releases at the time of submission of the settlement to the Court for preliminary approval, at the time of preliminary approval, and at the time of final approval. Class counsel will limit their comments about the settlement to the topics addressed in this Settlement Agreement.
lli. SETTLEMENT TERMS A. New Admissions Search Policy and Corrections Officer Training 1. No later than September 15, 2006, Defendant County of Montgomery will issue new Admissions Search Policy. The new policy will comply with the directives of the permanent injunction entered in this lawsuit, and Defendant County of Montgomery will comply with this policy. 2. The Montgomery County Correctional Facility Employee Manual will include a copy of the new Admissions Search Policy. 3. A summary of the Admissions Search Policy shall be posted conspicuously in the
9

booking room and the training room and a copy of the full policy will be readily available to all corrections personnel.
4. Current and new corrections officers will be trained in the new Admissions Search Policy. The training of current officers will be completed within 60 days of September 15, 2006. Defendant County of Montgomery will confirm in writing that all Montgomery County Corrections Officers have received the required training.
5. The Admissions Search Policy shall provide, among other things, that all admission strip searches performed on all arrestees will be conducted only based on reasonable suspicion and only in the presence of corrections officers of the same sex of the detainee.
6. The parties will make a joint application to U.S. District Judge David N. Hurd when seeking preliminary approval of this settlement for the Court to lift its permanent injunction as part of this settlement. Said lifting of the injunction shall not take effect until the Admissions Search Policy has been implemented, including all training required by this section.
B. Settlement Fund 1. Defendants will pay into the Settlement Fund the sum of $2,000,000. 2. Not later than twenty days after entry of the Preliminary Approval Order, Defendants will pay into the Settlement Fund the amount of$ 50,000 (the "Initial Contribution") to be used by the Settlement and Website Administrators to cover the initial costs of Notice and administration of the Settlement. If, at any time, whether by order of any court or because of Defendants' exercising any option to withdraw, the Settlement does not become final, then any unspent money remaining from the Initial Contribution shall be returned to the Defendants with no obligation on the part of Class Counsel to repay any portion of the money actually spent. 3. Defendants' remaining monetary obligation of $1,950,000 will be provided for
10

deposit into the Settlement Fund within 21 (twenty-one) days of the Effective Date by check drawn on a United States bank.
3(a) The parties acknowledge that $184,000 of the defendants' contribution to the settlement fund will be paid by the New York State Liquidation Bureau ("Bureau") and that in order for this payment to be made, the parties must complete and submit certain Bureau documents. In order to effectuate payment of this money into the settlement fund in a timely manner, the parties agree to use their reasonable best efforts to: (i) submit all necessary documents to the Bureau within seven (7) days of execution of this settlement agreement; and (ii) do all that is necessary to insure payment of the $184,000 contribution to the settlement fund within twenty-one (21) days of the Effective date, but under no circumstances will a delay of payment by the Bureau constitute a breach by Defendants of this agreement.
4. All administrative expenses, including the costs of attorneys' fees, settlement administration, website administration and the provision of notice to class members, will be deducted from the Settlement Amount prior to determining the "Distribution Amount." C. Payments to Class Members
1. Each Class Member who submits a timely Claim Form will be entitled to receive their proportionate share of the Distribution Amount. This amount will be distributed to the Class based on the Plan of Distribution attached to this agreement as Exhibit F.
2. No Class Member shall be entitled to more than his or her individual share of the Distribution Amount regardless of the number of times he or she has been booked and/or strip
11

searched at the Montgomery County Correctional Facility. 3. No portion of the Distribution Amount shall be disbursed before the Effective
Date, except as set forth in Section III.D.l., below. 4. Late claims may be allowed, if submitted on or before the date of the Final
Approval Hearing, under the sole discretion of class counsel for good cause shown. All late claims must be approved by the Court prior to being paid as part of the distribution of the settlement.
5. Defendant County of Montgomery will not seek enforcement of any liens for monies owed solely and wholly to County. Additionally County agrees not seek enforcement of any liens through the Settlement Administrator or Class Counsel, and will accordingly not serve the Settlement Administrator or Class Counsel with notice of any liens, unless the County has a legal obligation to do so and/or will be penalized for failing to do so. Nothing in this agreement shall be construed to be a waiver of any liens, but instead is an agreement by the County not to seek the recovery of any liens from Settlement Administrator or Class Counsel, unless the County has a legal obligation to do so or will be penalized for failing to do so. Defendant further represents that they will not attempt to collect any liens held by third-persons, or any liens resulting from the assignment of child support payments to Montgomery County, the collection of which was delegated to the County Department of Social Services, unless the County has a legal obligation to do so and/or will be penalized for failing to do so.
6. The County also agrees not to distribute or disclose the identities of any individual who is a member of the settlement class or who makes a claim on the settlement fund, including disclosing these identities to other County or State Departments of Social Services, unless the County has a legal obligation to so and/or will be penalized for failing to do so. This
12

waiver does not limit the Montgomery County Department of Social Services from asserting a lien on any other assets that a Class Member or Class Representative may possess. It also does not preclude the enforcement of any liens held by third parties against class members where enforcement efforts are made independent of the Montgomery County Department of Social Services.
D. Attorneys Fees and Expenses 1. Class Counsel will petition the Court for an award of attorneys' fees and
expenses in the amount of $600,000. Defendants shall not oppose Class Counsel's application for said award of fees and expenses, nor will they oppose any appeal filed by Class Counsel relating to their application for an award of attorneys' fees.
E. Additional Disclosure of Plaintiffs' Addresses 1. Plaintiffs will make a motion to the Court, as a part of the preliminary
approval motion, for the disclosure of the Montgomery County Department of Probation and Department of Social Services' records of the names and addresses of the members of the Plaintiffs, and for a protective order providing that such names and addresses will only be used for purposes of this lawsuit, and that the aforesaid Probation and Social Services records will be destroyed after the issuance of the Final Approval Order.
2. The costs, including but not limited to any costs incurred by the County of Montgomery, of production the aforesaid Probation and Social Services records shall be paid from the Settlement Fund as an administrative cost.
F. Partial Distribution Pending Appeal In the event that final approval of the settlement is appealed by Plaintiffs or a
third party objector, Defendants will nevertheless make the payment(s) required by part III.B. 13

herein. Class Counsel will distribute such portion of the proceeds that is not subject to dispute on appeal with the remainder placed in escrow with the Settlement Administrator. Defendants agree not to oppose any appeal taken from the final approval order by the Plaintiffs.
IV. NOTIFICATION TO CLASS MEMBERS Plaintiffs will make a motion to the Court, as a part of the preliminary approval motion, for approval of the notice plan appended to this agreement as Appendix A. Defendant will not object to this notice plan, and has no responsibility for any notification of this Settlement to the Plaintiffs.
V. REQUESTS FOR EXCLUSION BY CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Settlement Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement Class, does not wish to be a Settlement Class Member and elects to be excluded from any final order entered pursuant to this Settlement. B. Any Putative Settlement Class Member who submits a timely Request for Exclusion may not file an objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement. C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class Counsel and to Defendants' Counsel together with copies of the Request for Exclusion. Class
14

Counsel and Defendants' Counsel shall jointly report the names appearing on the Opt-Out List to the Court no less than three (3) business days prior to the Final Approval Hearing.
D. Paragraph 2 of Appendix B, which the parties agree to file under seal with the Court until90 days after the Notice Date, is incorporated herein by reference.
E. Class counsel agrees that they will not represent any individuals who opt out from the Settlement, and further agree to only refer opt-outs to the New York State Bar Association, in asserting claims against Defendants that are the subject of this agreement.
VI. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Settlement Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support of the objection. B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon Class Counsel and Defendants'
15

Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Court.
Vll. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT A. Plaintiffs hereby irrevocably release Defendants, and all of their respective
affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers, reinsurers, and employees are released from any and all claims or causes of action, suits debts, dues, sums of money, attorney fees, interest, treble damages, accounts, reckonings, bonds, bills, specialties covenants, contracts controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Settlement Class against the Released Persons, their heirs, successors, and assigns, or any of them, based upon or related to the actions that are the subject of this Settlement Agreement.
B. The above-mentioned Settlement Fund is accepted in full compromise, settlement, accord and satisfaction of all the aforesaid claims and demands including all consequences thereof which may hereafter develop as well as those already developed or now apparent. All claims, if any, for attorneys', insurers', workers' compensation, hospital, physician, ambulance, or any other liens are included herein and that plaintiffs will indemnify and hold the defendants, and all of their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers, reinsurers and employees harmless from any such claims, from
16

any and all third-party claims to the settlement proceeds and from any and all third-party claims against all plaintiffs relating to the claims described herein above. It is further understood and agreed that this Release and settlement is in compromise and settlement of the claims described herein above against the parties released. Any and all liens relating to the claims asserted by plaintiffs in this litigation will be satisfied out of the settlement sum provided by the parties released.
C. This settlement constitutes complete payment for all damages and injuries and is specifically intended to release the defendants, and all of their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers, reinsurers and employees and also is specifically intended to release, whether presently known or unknown, all other tortfeasors liable or claimed to be liable jointly with the defendants and all of their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers, reinsurers and employees and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the defendants and all of their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers, reinsurers and employees for the claims which are the subject of this lawsuit.
D. This Settlement Agreement and Release does not affect the rights, if any, of Settlement Class Members who timely and properly exclude themselves from the Settlement.
E. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and
17

provisions of the Settlement Agreement, including, but not limited to, orders enJommg Settlement Class Members from prosecuting claims that are released pursuant to the Settlement Agreement.
F. Upon the Effective Date and the conclusion of any appeals: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Settlement Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Settlement Class Members and their successors, predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal.
G. Tolling of Statute of Limitations. Defendants agree that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Settlement Class who has properly opted out of the Settlement, Defendants shall not assert any statute of limitations, repose, or laches defense that did not exist as of April 29, 2003, through and including the date that their application to opt-out was approved by the court. Fmiher, in the event that the Court does not approve this Settlement Agreement, or the Court's approval of this Settlement Agreement is terminated pursuant to the provisions of this Settlement Agreement, Defendants agree that, with respect to any claims asserted in the Litigation that are subsequently asserted or maintained in any existing or subsequently filed class action lawsuit, by any member of the Settlement Class, Defendants shall not assert any statute of limitations, repose or laches defense that is premised upon the time period of April 29, 2003 through and including the date of the last of the following events to occur: the entry of the Court's order disapproving this Settlement Agreement, the appellate court's decision reversing the Court's order approving this
18

Settlement Agreement, or the termination of this Settlement Agreement. H. Within three (3) days of the execution of this Settlement Agreement, Class
Counsel will execute a Stipulation of Dismissal as to the individual Defendants. Such Stipulation of Dismissal will be with prejudice, except in the event that the Defendants elect to terminate this Settlement Agreement pursuant to paragraph V.D supra, or in the event that the Court does not grant final approval to this Settlement Agreement, such Stipulation of Dismissal will be null and void, and the individual Defendants will be restored as parties to this action.
Vlll. INCENTIVE AWARDS TO CLASS REPRESENTATIVES A. Given the efforts of the named Plaintiffs on behalf of the Settlement Class,
Defendants will not oppose total awards by the Court to the Plaintiffs and Class Representatives as follows:
1. Subject to the Court's approval, Plaintiff and Class Representative Barbara Davis will be awarded $15,000 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is agreed between the parties that Ms. Davis provided substantial assistance to Class Counsel in their prosecution of this action, and that Ms. Davis, was forced to answer questions at her deposition about her personal life that were highly embarrassing and caused her emotional distress.
2. Subject to the Court's approval, Plaintiff and Class Representative Paul Marriot will be awarded $12,500 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is agreed between the parties that Mr. Marriott provided substantial assistance to Class Counsel in their prosecution of this action, and that as lead plaintiff in this action, Mr. Marriott was subject to considerable public scrutiny as a result of the filing of this action.
19

2. Subject to the Court's approval, Class Representative Andy Rivera will be awarded $7,500.00 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is agreed between the parties that Mr. Rivera provided assistance to Class Counsel in their prosecution of this action.
IX. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation. B. Defendants, through their undersigned attorneys, represent and warrant that they have the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby.
X. MISCELLANEOUS PROVISIONS A. This Settlement Agreement, and the exhibits and related documents hereto, are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Approval Order as contemplated herein. Any payment of monies, or any other action taken, by any of the Defendants pursuant to any provision of this Settlement Agreement, shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final
20

Approval Order as contemplated herein. Defendants and each of them deny any liability to Plaintiffs and to all Members ofthe Settlement Class. This provision shall survive the expiration or voiding of the Settlement Agreement.
B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Approval Order is not entered, then this Settlement Agreement, including any releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties' settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties.
E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without giving effect to any choice or
21

conflict of law provision, or rule that would cause the application of the laws of any other

jurisdiction.

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

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

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

reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability

shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this

Settlement Agreement shall be construed and enforced as if such illegal, invalid, or

unenforceable clause, paragraph, or other provisions had not been contained herein.

I.

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

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

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

J.

All applications for Court approval or Court orders required under this Settlement

Agreement shall be made on notice to Plaintiffs and Defendants.

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

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

participation of all Parties and their counsel. Since this Settlement Agreement was drafted with

the participation of all Parties and their counsel, the presumption that ambiguities shall be

construed against the drafter does not apply. Each of the Parties was represented by competent

and effective counsel throughout the course of settlement negotiations and in the drafting and

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

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

the Parties relied on advice received from any other Party or any other Party's counsel.

22

L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material and integral parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitute the entire, fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the Litigation. M. Notice: 1. Any notice, request or instruction or other document to be given by any party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid: Ifto Defendants to: Thomas W. Hyland Esquire, Wilson, Elser, Moskowitz, Edelman & Dicker, 150 East 42nd Street, New York, NY 10017. If to Class Counsel or Plaintiffs to: Elmer Robert Keach, III, Esquire, Law Offices of Elmer Robert Keach, III, PC, 1040 Riverfront Center, P.O. Box 70, Amsterdam, NY 12010.
IN WITNESS WHEREOF, Plaintiffs and Defendants and their respective counsel have executed this Settlement Agreement as of the date(s) indicated on the lines below.
Dated: August_, 2006
Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center
23

~UG-23-2006 07:25 From:

To:4652548

P. f. Box 70 Am terdam, NY 12010 Tel phone: 518.434.1718
AT ORNEV FOR PLAINTIFFS
Tho as W. Hyland, Esquire Wil on, Elser, Moskowitz, Edelman & Dicker 1SO ast 42nd Street . Ne York, NY 10017 Tcle hone: 212.490.3000 AT" ORNEVS FOR DEFENDANTS

24

APPENDIX A NOTICE PLAN A. Responsibilities of the Settlement Administrator and Website Administrator 1. The Settlement Administrator shall implement and administer the Notice Program. 2. The Settlement Administrator shall be responsible for, without limitation: (i) mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; (iv) distributing payments to class members; and otherwise administering the Notice Program. The Notice Program shall comply with ali requirements of applicable law. The Settlement Administrator wiH maintain an appropriate insurance policy to protect against any violation of their fiduciary duty to the Court, Class Members, or Class Counsel. B. Notice 1. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all individuals at their last known or readily ascertainable address and by publication in the Amsterdam Recorder, Schenectady Gazette and Gloversville Leader Herald on at least one day per week for three consecutive weeks commencing on the Notice date, and on one occasion during the last ten days of the Claims Period. The mailed notice will be provided
25

in Spanish and English, and newspaper advertisements will provide instruction that a Spanish copy of the notice will be provided upon request.
2. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. The Website Administrator will also provide downloadable copies of notices, claim forms, court decisions and other information to class members through a dedicated internet website, www.mcjsettlement.com.
3. Defendant will provide Montgomery County Correctional Facility booking sheet(s) for each person believed to fall within the Class Definition, together with any other information (e.g. Social Security Numbers, Dates of Birth) that a third party administrator may need to facilitate proper notice. The Defendants will also provide addresses for class members that are detailed in Montgomery County Probation Department and/or Department of Social Services records, if this is the last known address. The Defendants will not be responsible to provide these records in an electronic format to the extent that they do not exist in an electronic format. Any expenses associated with obtaining data from the Probation Department and/or Department of Social Services, including but not limited to expenses incurred by the County will be borne by the Plaintiffs as an administrative expense, and these expenses will be paid from the settlement fund.
4. If, after the initial mailing, the Notice is returned as undeliverable, the Claims Administrator will attempt to locate the Class Member by way of a national locator database or service and, if another address is found, remail the Notice to that new address.
5. The Settlement Administrator shall provide an affidavit to the Court, with a copy 26

to Class Counsel, attesting to the measures undertaken to provide Notice of the Settlement to Settlement Class Members. The Website Administrator will also provide an affidavit attesting to activity on the settlement website, including number of visitors and number of documents downloaded.
6. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form which shall provide that the names, addresses and other information about specific Settlement Class Members and/or specific Settlement Class Members that is provided to it by Defendants, Class Counsel, or by individual Settlement Class Members or individual Settlement Class Members, shall all be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
7. Class Counsel will employ an interpreter on a per diem basis to assist class members whose primary language is Spanish in filing claims under the settlement. The costs of this interpreter will paid as an administrative cost.
27

EXHIBIT A

CLAIM FORM AND RELEASE
PLEASE READ THESE INSTRUCTIONS AND CLAIM FORM CAREFULLY
You must fill out and send in the attached Claim Form, postmarked by [INSERT DATE] to share in the settlement money.
I. GENERAL INSTRUCTIONS
A. To get money from the Settlement Fund in this litigation (Marriott v. County of Montgomery), members of the Settlement Class must fill out the Claim Form Release. The Form is attached at the end ofthese instructions. The completed and signed Claim Form and Release
must be postmarked by [insert date]. Ifyou fail to send it in on time, it will be rejected and you
will not get any money. You must submit it in the enclosed envelope or another properly addressed, postage prepaid envelope to the following address:
Settlement Administrator [insert address+ 800 number]
B. If you have any questions about how the Settlement Fund will be divided up, you should write or call the Settlement Administrator. Their address and phone number is above.
C. All Settlement Class Members who do not exclude themselves are bound by the terms of the final order in this litigation. This is true whether you send in a form or not.
D. If you have asked to be excluded, do not submit a Claim Form or the Release.
II. DEFINITIONS
A. "Settlement Class" are all the people who satisfy ALL the following four conditions: 1. you entered the Montgomery County Correctional Facility; 2. you were charged with a non-felony offense, violation of probation or parole, or held
on a civil matter such as on a Family Court warrant; 3. you were strip-searched at the jail upon entry; AND 4. you were searched during the period April29, 2000 through March 25, 2005.
B. "Defendant" is the County ofMontgomery.
C. "Litigation" is the case of Marriott v. County ofMontgomery, Index No. 03-CV0531 (DNH)(DEP) in the United States District Court for the Northern District of New York.

III. CLAIM FORM INSTRUCTIONS
A. Please type or neatly print all the information that is asked for.
B. By signing below you are verifying that the information your have included is correct, and that you agree to provide additional information to Plaintiffs' Co-Lead Counsel or the Settlement Administrator to support your claim. They may ask you to do this in the future.
C. By signing below you are also verifying that you have not filed a claim or lawsuit about being strip searched at the jail, and that you did not ask anyone else to file one for you, and you don't know of anyone who might have filed one for you.
D. You also may be required to send other documents with this Claim Form and Release. Please read the instructions carefully. Your claim will be checked and verified by the Settlement Administrator. You should keep copies of all documents that support your claim while this is going on.
E. If you want money from the Settlement Fund you must complete Part 1 of the Claim Form and the additional Parts of the Claim Form that apply to you.
F. A Claim Form and Release will be considered "submitted"to the Settlement Administrator if it is mailed in a first-class envelope that is postmarked by the due date. If you send the Claim Form and Release to the Settlement Administrator in some way other than first-class mail, the Claim Form and Release will be considered "submitted" when it is received by the Settlement Administrator.
G. The Settlement Administrator will not tell you when they get your form. If you want to make sure the Settlement Administrator gets your form, you should send it by certified mail, return receipt requested. It will take some time to process all the forms and send the checks. This work will be done as fast as possible, but each claim must be checked for accuracy and recorded.
H. Please write or call Settlement Administrator if your address changes.
THE CLAIM FORM MUST BE FILLED OUT AND SIGNED IF YOU WANT TO GET MONEY FROM THE SETTLEMENT FUND. THE ENVELOPE MUST BE POSTMARKED NO LATER THAN [INSERT DATE/ 2006, AND MUST BE MAILED TO:
SETTLEMENT ADMINISTRATOR [INSERT ADDRESS]

IV. CLAIMFORM MARRIOTT v. COUNTY OF MONTGOMERY PART 1: CLAIMANT IDENTIFICATION
Claimant's Name:------------------------------------------------------
Mailing Address:

City: _ _ _ _ _ _ _ _ _ _, State/Country:____________ Zip Code:_________
Date ofBirth: ------------------
Date of Arrest, ifknown, (Please say so ifthe date you give is an estimate):____________ Actual Estimate
Criminal charges or other reason for arrest, if known (i.e. violation of probation, Family Court warrant):

(If you do not know what the charges against you were, but believe you are still a Class Member, you should file a claim. We will get your arrest record from the County. You may still be asked to provide more information about your case.)
Social Security Number:

Telephones: (

(Ifyou fail to include this information, your claim may not be paid) ) _ _ _ _ _ _ (day) ( ) _ _ _ _ _ _ _ _ _ (evening)

Person to contact ifthere are questions regarding this claim:

SUBMISSION TO JURISDICTION OF THE COURT
By signing below, I agree that the United States District Court for the Northern District of New York has the power to rule on my claim as a Settlement Class Member, and that the Court has the power to enforce the Release described below.
RELEASE
By signing below, I acknowledge the release and discharge ofthe Defendants, and all oftheir respective parents, subsidiaries, affiliates, predecessors, successors and assigns, officers, agents, representatives, and employees, from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Settlement Class against the Released Persons, or any of them, based upon or related to strip searches in the Montgomery County Correctional Facility.
VERIFICATION
I declare under penalty of perjury under the laws of the United States that the foregoing information provided by the undersigned is true and correct. I also declare that I was strip searched when I entered the Montgomery County Correctional Facility.
I filled out and signed this Proof of Claim and Release form on _ _ _ _ _ _ _ _, 2006, in
(City, State, Country)
(Sign your name here)
(Type/Print your name here)

------------------
EXHIBITC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOTT, on behalf of himself and on behalf of a class of others similarly situated, et al.,
Plaintiffs,

No. 03-CV-0531 (DNH/DEP)

THE COUNTY OF MONTGOMERY, et. al.,
Defendants.

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT
THIS CASE coming on for hearing before the undersigned Judge on _ _ _ _ _ __ 2006, pursuant to this Court's Order of_ _ _ _ in order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the parties is fair, reasonable and adequate, and to address Class Counsel's application for an award of attorney's fees and costs; and the Class Members being represented by Class Counsel and Defendants being represented by their attorney; AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendants, and having considered the submissions by Class members, now makes the following:

FINDINGS OF FACT 1. This action was commenced on April29, 2003, as a class action. 2. After years ofintensive litigation, including extensive discovery and motion practice before this Court, and including the granting of the Plaintiffs motions for class certification, preliminary injunction, and partial summary judgment, and as a result of intensive, arm's length negotiations between Class Counsel and Defendants, the parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal ofthe claims at issue in this case against the Defendants ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the Court on _ _ _ _ __ 3. As part ofthe Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice ofthe proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement. 4. As ofthe deadline for the filing of objections, only _ _ objections were filed. Given the size ofthis Settlement, and the notice plan described above, this Court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendants.
5. The settling Parties have filed with the Court an affidavit from _ _ _ _ _ _ _ declaring
that the mailing ofthe Court-approved notice, consistent with the Notice Plan, has been completed. 6. The Court finds that the published notice, mailed notice and Internet posting constitute the best practicable notice ofthe Fairness Hearing, the proposed Settlement, Class Counsel's application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members ofthe Settlement Class, and complied fully with the requirements ofRule 23 ofthe Federal Rules of Civil Procedure, the

Constitution ofthe United States, the laws ofNew York and any other applicable law. 7. Any persons who wished to excluded from this Action were provided an opportunity to "opt out" pursuant to the Notice. All persons who have validly excluded themselves from this Action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein. [List attached] 8. Class Members are bound by the Settlement, the Settlement Agreement and releases contained therein, and the Final Order and Judgment, and do not have any further opportunity to optout of the Action. 9. Any class member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs' Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise. 10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise ofthe claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules ofCivil Procedure. There are a number offactors which the Court has considered in affirming this Settlement, including: 11. The liability issues in this case have been vigorously contested. 12. The Court notes that for settlement purposes, this Settlement has the benefit of providing relief to Class Members now, without further litigation. This Settlement provides Class Members with a substantial monetary benefit. 13. This Settlement is clearly a byproduct ofhard-fought litigation between the parties, and not

a result of any collusion on the part of Class Counsel or Counsel for the Defendants.
14. Class Counsel submitted to the Court and served on the Defendants their application for
reasonable attorneys' fees, costs, and expenses consistent with the terms of the Settlement
Agreement. This Court has considered Class Counsel's request and hereby grants the request.
15. The claims procedure established under the Settlement Agreement is fair, a simplified
process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated
problems.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT,
THE COURT HEREBY MAKES THE FOLLOWING:
CONCLUSIONS OF LAW
16. This Court has jurisdiction over the parties and the subject matter of this proceeding.
17. Pursuant to Rule 23 ofthe Federal Rules ofCivil Procedure, the following Settlement Class
is certified for purposes of final settlement:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations ofprobation or parole, traffic infractions or other minor crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice ofthe Montgomery County Sheriffs Department and the County ofMontgomery. The class period commenced on April 29, 2000 and extended until March 25, 2005. Specifically excluded from the proposed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or assignees.
18. The Court finds that, for the purpose of this Settlement, the requirements ofRule 23 ofthe
Federal Rules ofCivil Procedure are satisfied, and that a Class Action is an appropriate method for
resolving the disputes in this litigation. All the prerequisites for Class certification under Rule 23
are present. The Class members are ascertainable and too numerous to be joined. Questions oflaw
and fact common to all Class members predominate over individual issues and should be determined

in one proceeding with respect to all Class members. The Class Representatives' claims are typical ofthose ofthe Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action. 19. The Class Representatives Paul Marriott, Barbara Davis and Andy Rivera are entitled to and are hereby awarded payments of$12,500, $15,000, and $7,500, respectively, in recognition ofthe efforts she undertook in connection with this lawsuit. 20. The Court grants final approval ofthe Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 21. The Courts finds that the request for attorneys' fees is reasonable. NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 22. The Motion for Final Approval of the Proposed Settlement is GRANTED. 23. The Class Representatives Paul Marriott, Barbara Davis and Andy Rivera are entitled to and are hereby awarded payments of$12,500, $15,000, and $7,500, respectively. 24. The Class Counsel's application for attorneys' fees and expenses is granted. 25. This Action and all claims against the Settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction ofthe Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations ofthis Settlement Agreement. 26. All Class members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or

proceeding as a class action in any forum. IT IS SO ORDERED. Dated:

Hon. David N. Hurd United States District Judge

EXHIBITD

EXHIBITD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOTT, on behalf of himself and on behalf of a class of others similarly situated, et al.,
Plaintiffs,

No. 03-CV-0531 (DNHIDEP)

THE COUNTY OF MONTGOMERY, et. al.,
Defendants.

ORDER PRELIMINARILY APPROVING SETTLEMENT WHEREAS, the Plaintiffs and Defendants have entered into a Settlement Agreement intended to resolve the litigation pending in this Court; and WHEREAS, the Settlement Agreement, together with supporting materials, sets forth the terms and conditions for a proposed settlement and dismissal with prejudice of this action against the Defendants; and WHEREAS, the Court has before it the parties' Joint Motion for Preliminary Approval of Settlement and Joint Memorandum in Support ofMotion for Preliminary Approval of Settlement, together with the Settlement Agreement and supporting materials; and WHEREAS, the Court is satisfied that the terms and conditions set forth in the Settlement Agreement were the result of good faith, arm's length settlement negotiations between competent and experienced counsel for both Plaintiffs and Defendants, IT IS HEREBY ORDERED AS FOLLOWS:

1. Capitalized terms used in this Order have the meanings assigned to them in the Settlement
Agreement and this Order.
2. The terms ofthe parties' Settlement Agreement are hereby conditionally approved, subject
to further consideration thereofat the Final Approval Hearing provided for below. The Court finds
that said settlement is sufficiently within the range ofreasonableness and that notice ofthe proposed
settlement should be given as provided in this Order.
3. Pursuant to Fed R. Civ. P. 23, the Court conditionally certifies the following settlement class:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations ofprobation or parole, traffic infractions or other minor crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice ofthe Montgomery County Sheriffs Department and the County ofMontgomery. The class period commenced on April 29, 2000 and extended until March 25, 2005. Specifically excluded from the proposed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or assignees.
The above class definition supercedes and replaces the class definition contained in the Court's
decision and order of March 25, 2005 certifying this action as a class action. All other findings of
fact and conclusions of law in that decision and order remain in full force and effect, pending the
final disposition of this action.
4. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the
Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice
Program as set forth in the Appendix of the Settlement Agreement.
Notice to Settlement Class and Appointment o{Settlement Administrator
5. Counsel for the Class ("Class Counsel") are as follows:
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010

Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32"d Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
6. Beginning no later than [insert date], 2006, Class Counsel shall cause to be disseminated
the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth
in Paragraph IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class members will have sixty
(60) days from the Notice Date to opt out and one hundred twenty (120) days from the Notice Date
to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims Administrator shall
serve and file a sworn statement attesting to compliance with the provisions of this paragraph.
7. The notice to be provided as set forth in the Settlement Agreement is hereby found to be the
best practicable means of providing notice under the circumstances and, when completed, shall
constitute due and sufficient notice of the proposed settlement and the Final Approval Hearing to
all persons and entities affected by and/or entitled to participate in the settlement, in full compliance
with the notice requirements ofFed R. Civ. P. 23, due process, the Constitution ofthe Untied States,
the laws of New York and all other applicable laws. The Notices are accurate, objective,
informative and provide Class members with all ofthe information necessary to make an informed

-

--

-~·--------------

decision regarding their participation in the Settlement and its fairness.

8. Class Counsel are authorized to retain Rust Consulting Inc., 117 Central Avenue North,

Fairbault, Minnesota as the Claims Administrator in accordance with the terms of the Settlement

Agreement and this Order.

Requests for Exclusion from the Settlement Class

9. Any member of the Settlement Class that wishes to be excluded ("opt out") from the

Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it

is received by the Claims Administrator at the address indicated in the Notice on or before the close

ofthe opt out period. The Request for Exclusion shall fully comply with the requirements set forth

in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by

filing Requests for Exclusion as a group or class, but must in each instance individually and

personally execute a Request for Exclusion and timely transmit it to the Claims Administrator.

10. Any member ofthe Settlement Class who does not properly and timely request exclusion

from the Settlement Class shall be bound by all the terms and provisions of the Settlement

Agreement, whether or not such person objected to the Settlement and whether or not such person

made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement.

The Final Al!J!roval Hearing

11. A hearing on final settlement approval (the "Final Approval Hearing") is hereby scheduled

_ _ _ to be held before this Court on

,, 2006, to consider the fairness, the reasonableness, and

adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect

to the Released Parties that are Defendants herein, and the entry of final approval order in this class

action. Class Counsel's application for award ofattorney's fees and costs shall be heard at the time

ofthe fairness hearing.

12. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which my be posted by the Court. 13. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 14. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry ofFinal Order approving the settlement, and Class Counsel's application for fees and expenses by serving a written objection. 15. Any Class member making the objection (an "objector") must sign the objection personally. An objection must state why the objector objects to the proposed Settlement and provide the basis to support such position. If an objector intends to appear personally at the Fairness Hearing, the objector must include with the objection a notice of the objector's intent to appear at the hearing. 16. Objections, along with any notices of intent to appear, must be filed no later than 60 days from the Notice Date. If counsel is appearing on behalf of more than one Class Member, counsel must identify each such Class Member and each Class Member must have complied with the requirements of this Order. These documents must be field with the Clerk of the Court at the following address: Clerk of the Court U.S. District Court for the Northern District ofNew York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207 17. Objections, along with any notices ofintent to appear, must also be mailed to Class Counsel

and counsel for Defendant at the address listed below:
CLASS COUNSEL
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL Theresa Marangas, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker One Steuben Place Albany, NY 12207
18. Only Class Members who have filed and served valid and timely notices of objection shall
be entitled to be heard at the Fairness Hearing. Any Class Member who does not timely file and
serve an objection in writing to the Settlement, entry of the Final Approval Order, or to Class
Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the
Class Notice and mandated in this Order, shall be deemed to have waived any such objection by
appeal, collateral attack, or otherwise.
19. Persons wishing to be heard at the Fairness Hearing are required to file written comments
or objections and indicate in their written comments or objections their intention to appear at the
Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action
to indicate their approval.
20. All members of the Settlement Class who do not personally and timely request to be
excluded from the Class are enjoined from proceeding against the Defendants for the claims made in the Complaint until such time as the Court renders a final decision regarding approval of the
Settlement and, if the settlement is approved, enters a final order as provided in the Settlement
Agreement.
Other Provisions

~-~-----------------------
21. Upon approval ofthe settlement provided for in this Settlement Agreement, each and every term and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 22. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Dated:
Hon. David N. Hurd United States District Judge

EXHIBIT£

COURT ORDERED LEGAL NOTICE
If you were admitted into the Montgomery County Correctional Facility between April 29, 2000 and March 25, 2005 and were strip searched when you entered, you could get a payment from a class action settlement.
A settlement has been proposed in a class action lawsuit about the strip search policies of the Montgomery County Correctional Facility ("MCCF"). The settlement will provide $2,000,000 to pay claims from individuals who were admitted into the MCCF and charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the facility.
The United States District Court for the Northern District of New York authorized this notice. The Court will have a hearing to decide whether to approve the settlement, so that the benefits may be paid.
Who's Included?
You are a Class Member and could get benefits ifyou were admitted into the MCCF from April 29, 2000, through and including March 25, 2005, and you were charged with a misdemeanor, violation or traffic violation, violation of probation or parole, or held on a civil matter, and you were strip searched upon your entry into the Jail.
What's This About?
The lawsuit claimed that Defendant Montgomery County and its officers had an unlawful practice of strip searching everyone who was admitted into the Jail, whether or not there was a reason to search the individual. Defendants deny they did anything wrong. Both sides agreed to the settlement to ensure a resolution and to provide benefits to the Class Members.
What Does the Settlement Provide?
Defendant agrees to pay a total of $2,000,000 to pay claims to Class Members, administrative costs of the settlement, incentive awards to the three named Plaintiffs, and attorneys' fees and expenses. Each Class Member who makes a claim will receive an equal share of the portion of the $2,000,000 allocated to pay claims to Class Members. There are believed to be approximately 1,750 Class Members. You can only make one Claim, even if you were strip searched more than once.

How Do You Ask For A Payment?
A detailed Notice and Claim Form package contains everything you need. Just call or visit the settlement website, www.mccfsettlement.com, to get one. To qualify for a payment, you must send in a Claim Form. Claim forms are due by [insert date], 2006.
What Are Your Other Options?
If you don't want the settlement benefits or don't want to be legally bound by the settlement, you must exclude yourself by [insert date] 2006 or you won't be able to sue, or continue to sue, the Defendants about the claims in this case. If you exclude yourself, you can't get any benefits from this settlement. If you stay in the settlement, you may object to it by [insert date] 2006. The detailed notice, available by calling or visiting the website below, explains how to exclude yourself or object.
The court will hold a hearing in this case (Marriott, et. al. v. County ofMontgomery, et. al. case no. 03-CV-0531) on [insert date], to consider whether to approve the settlement and a request by the lawyers representing all Class Members (E. Robert Keach, Esq. Albany, NY, Beranbaum Menken Ben-Asher & Bierman LLP, New York, NY, and The Mason Law Firm, Washington, DC) for attorneys' fees and costs. You may ask to appear at the hearing, but you don't have to. For more information, call toll free 1-800-000-0000, visit the settlement website www.MCCFsettlement.com, or write to Settlement, P.O Box X, City, State, 00000.

EXHIBITF

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

PAUL MARRIOTT, BARBARA DAVIS, and ANDY RIVERA, on behalf of themselves and a certified class of others similarly situated,
Plaintiffs,

No. 03-CV-0531 (DNH/DEP)

THE COUNTY OF MONTGOMERY, et. al.,
Defendants.

PLAN OF DISTRIBUTION Defendants County of Montgomery, Michael Amato, Jeffrey Smith, Kevin Snell, Sue Buddies and John Pecora (the "Defendants") have agreed to settle this class action by, among other things, paying $2.0 million into a Settlement Fund for the benefit of class members and the named plaintiffs in this litigation. Subject to Court approval, Class Counsel intend to distribute the Settlement Fund as set forth below. As more fully set forth in the Settlement Agreement and the Class Notices, class members have the right to submit to the Court objections for its consideration to the Settlement and/or this Plan of Distribution. Attorneys' Fees, Costs. Administrative Expenses and Incentive Awards Pursuant to the Settlement Agreement and applicable law, Class Counsel intend to seek from the Settlement Fund reimbursement for the costs advanced in the prosecution of this litigation and an award of attorney's fees. Plaintiffs' counsel will apply to the

LAW OFFICES OF ELMER ROBERT KEACH, III
A PROFESSIONAL CORPORATION 1040 RIVERFRONT CENTER • P. 0. BOX 70 • AMSTERDAM, NY 1::!010
TELEPHONE 516·434·1716 • TELECOPIER 516-770·155t1 ELECTRONIC MAIL: hnhk<.•c-u·h@li(:~t.H·hlu,,·ri•·a1L('Oill

Court for an award of costs and attorney's fees of no more than thirty percent (30 %) of the settlement fund, or $600,000. Additionally, Class Counsel proposes to allocate up to $35,000 of the settlement fund to pay incentive awards to class representatives Paul Marriott ($12,500), Barbara Davis ($15,000) and Andy Rivera ($7,500), who Class Counsel maintain provided assistance to them during the prosecution of this litigation. Deducting for estimated administrative expenses of $65,000 and for attorney's fees, costs and incentive awards, class counsel estimates that there will be approximately $1,300,000 in the settlement fund for distribution to class members. Distribution to Class Members
Class Counsel proposes that approximately $1.3 million of the settlement fund be allocated to pay claims by class members, and that each class member who files a valid claim will receive their pro rata share of the settlement fund when the fund is distributed after final approval. Based on data prov~ded by Montgomery County when the initial notice to class members of the certification of this action was mailed in September, 2005, Class Counsel estimates the class size here to be approximately 1,650 individuals. Individuals who were admitted to the Montgomery County Jail on more than one occasion will only be allowed to file one claim against the settlement fund. When considering the claims rates achieved in similar settlements, Class Counsel estimates that each member of the settlement class that files a claim will receive between $2,000 and $3,000 as a settlement payment. Court Approval
At the time of the final approval hearing, Class Counsel will detail to the Court the final distribution to be made to settlement claimants and the amount to be paid per

LAW OFFICES OF ELMER ROBERT KEACH, III

A PROFESSIONAl. CORPORATION

2

1040 RIVERFRONT CENTER • P.O. BOX 70 • AMSTERDAM. NY 12010

TELEPHONE 518-434-1718 • TELECOPIER 518-770-1558

ELECTRONIC MAIL: hohl<Pud•@k<"<H·I•III\dl•·n •·"" "'

claim. Subject to the Court's approval, all proceeds to class members will then be paid based on the final distribution amounts provided at the time of the final approval hearing.
Respectfully Sul;>mitted by:

Dated: August 31, 2006 Amsterdam, New York

Elmer R: bert K ch, , squire
LAW OFFICE OF E MER ROBERT KEACH, III, PC 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com
LEAD COUNSEL FOR PLAINTIFFS

LAW OFFICES OF ELMER ROBERT KEACH, III

A PROFESSIONAL COHPORATJON 1040 RIVERFRONT CENTER • P.O. BOX 70 • AMSTERDAM, r-,•y 12010

3

TELEPHONE 518-434-1718 • TELECOPfER 518-770-1558

ELECTRONIC MAIL: h'•hi..-.PoH·h@kPnf'llla\\-rii'I'I.«'<Hn

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PAUL MARRIOTT, Both Individually, and on Behalf of a Class of Others Similarly Situated; BARBARA DAVIS; and ANDY RIVERA;

Plaintiffs, vs

5:03-CV-531

COUNTY OF MONTGOMERY; MONTGOMERY COUNTY SHERIFF'S DEPARTMENT; MICHAEL AMATO, Individually, and as Sheriff of the County of Montgomery; JEFFREY SMITH, Individually, and as Undersheriff of the County of Montgomery; KEVIN SNELL, Individually, and as former Undersheriff of the County of Montgomery; JOHN PECORA, Individually, and as Jail Administrator in the Montgomery County Sheriff's Department; and SUE BUDDLES, Individually, and as Lieutenant in the Montgomery County Sheriff's Department,
Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES:

OF COUNSEL:

BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP
Attorneys for Plaintiff 3 New York Plaza New York, NY 10004

BRUCE E. MENKEN, ESQ.

BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP
Attorneys for Plaintiff 32nd Floor 80 Pine Street New York, New York 10005

JASON J. ROZGER, ESQ.

ELMER R. KEACH, III, ESQ. Attorney for Plaintiff One Steuben Place Albany, New York 12207

MASON LAW FIRM Attorney for Plaintiff Suite 500 1225 19th Street N.W. Washington, DC 20036

GARY E. MASON, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorney for Defendants One Steuben Place Albany, New York 12207

THERESA B. MARANGAS, ESQ.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants 150 East 42nd Street New York, New York 10017-5639

THOMAS W. HYLAND, ESQ.

DAVID N. HURD United States District Judge

ORDER PRELIMINARILY APPROVING SETTLEMENT

WHEREAS, the plaintiffs and defendants have entered into a Settlement

Agreement intended to resolve the litigation pending in this Court; and

WHEREAS, the Settlement Agreement, together with supporting materials, sets

forth the terms and conditions for a proposed settlement and dismissal with prejudice of this

action against the defendants; and

WHEREAS, the Court has before it the parties' Joint Motion for Preliminary

Approval of Settlement and Joint Memorandum in Support of Motion for Preliminary Approval

of Settlement, together with the Settlement Agreement and supporting materials; and

WHEREAS, the Court is satisfied that the terms and conditions set forth in the

Settlement Agreement were the result of good faith, arm's length settlement negotiations

between competent and experienced counsel for both plaintiffs and defendants,

- 2 -

IT IS HEREBY ORDERED:
1. Capitalized terms used in this Order have the meanings assigned to them in the
Settlement Agreement and this Order.
2. The terms of the parties' Settlement Agreement are hereby conditionally
approved, subject to further consideration thereof at the Final Approval Hearing provided for
below. The Court finds that said settlement is sufficiently within the range of reasonableness
and that notice of the proposed settlement should be given as provided in this Order.
3. Pursuant to Fed R. Civ. P. 23, the Court conditionally certifies the following
settlement class:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriffs Department and the County of Montgomery. The class period commenced on April 29, 2000 and extended until March 25, 2005. Specifically excluded from the proposed class are Defendants, and all of the respective affiliates, legal representatives, heirs, successors, employees or assignees.
The above class definition supercedes and replaces the class definition contained in the
Court's decision and order of March 25, 2005, certifying this action as a class action. All other
findings of fact and conclusions of law in that decision and order remain in full force and
effect, pending the final disposition of this action.
4. The Court approves the Class Notice of Settlement attached hereto as Exhibit A
and the Summary Notice for Publication attached hereto as Exhibit B. The Court also
approves the Notice Program as set forth in the Appendix of the Settlement Agreement.
- 3 -

Notice to Settlement Class and Appointment of Settlement Administrator
5. Counsel for the Class ("Class Counsel") are as follows:
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. and Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32nd Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason, Esq. THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
6. Beginning no later than October 27, 2006, Class Counsel shall cause to be
disseminated the notices, substantially in the form attached as Exhibits A and B hereto, in
the manner set forth in Paragraph IV of the Settlement Agreement. Such Notice Program will
be completed expeditiously pursuant to the terms of the Settlement Agreement. Class
members will have sixty (60) days from the Notice Date to opt out, and one hundred twenty
(120) days from the Notice Date to file claims. Prior to the Final Approval Hearing, plaintiffs
and/or the Claims Administrator shall serve and file a sworn statement attesting to
compliance with the provisions of this paragraph.
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7. The notice to be provided as set forth in the Settlement Agreement is hereby found to be the best practicable means of providing notice under the circumstances, and when completed, shall constitute due and sufficient notice of the proposed settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in full compliance with the notice requirements of Fed R. Civ. P. 23, due process, the Constitution of the Untied States, the laws of New York and all other applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness.
8. Class Counsel are authorized to retain Rust Consulting Inc., 117 Central Avenue North, Fairbault, Minnesota as the Claims Administrator in accordance with the terms of the Settlement Agreement and this Order.
Requests for Exclusion from the Settlement Class 9. Any member of the Settlement Class that wishes to be excluded ("opt out") from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 10. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the
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Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement.
The Final Approval Hearing 11. A hearing on final settlement approval (the "Final Approval Hearing") is hereby scheduled to be held before this Court on March 23, 2006, at 10:00 a.m., at the United States Courthouse in Albany, New York, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are defendants herein, and the entry of final approval order in this class action. Class Counsel's application for award of attorney's fees and costs shall be heard at the time of the fairness hearing. 12. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which my be posted by the Court. 13. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 14. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order approving the settlement, and Class Counsel's application for fees and expenses by serving a written objection.
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15. Any Class member making the objection (an "objector") must sign the objection
personally. An objection must state why the objector objects to the proposed Settlement and
provide the basis to support such position. If an objector intends to appear personally at the
Fairness Hearing, the objector must include with the objection a notice of the objector's intent
to appear at the hearing.
16. Objections, along with any notices of intent to appear, must be filed no later
than 60 days from the Notice Date. If counsel is appearing on behalf of more than one Class
Member, counsel must identify each such Class Member and each Class Member must have
complied with the requirements of this Order. These documents must be filed with the Clerk
of the Court at the following address:
Clerk of the Court U.S. District Court for the Northern District of New York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
17. Objections, along with any notices of intent to appear, must also be mailed to
Class Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL:
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL:
Theresa Marangas, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker One Steuben Place Albany, NY 12207
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18. Only Class Members who have filed and served valid and timely notices of objection shall be entitled to be heard at the Fairness Hearing. Any Class Member who does not timely file and serve an objection in writing to the Settlement, entry of the Final Approval Order, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise.
19. Persons wishing to be heard at the Fairness Hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action to indicate their approval.
20. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the defendants for the claims made in the Complaint until such time as the Court renders a final decision regarding approval of the Settlement, and if the settlement is approved, enters a final order as' provided in the Settlement Agreement.
Other Provisions 21. Upon approval of the settlement provided for in this Settlement Agreement, each and every term and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 22. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement.
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IT IS SO ORDERED. Dated: September 22, 2006
Utica, New York.
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ADR, CLOSED
U.S. District Court Northern District of New York - Main Office (Syracuse) [LIVE - Version 3.0.5] (Syracuse)
CIVIL DOCKET FOR CASE #: 5:03-cv-00531-DNH-DEP

Marriott v. County of Montgomery, et al Assigned to: Judge David N. Hurd Referred to: Magistrate Judge David E. Peebles Demand: $400,000,000 Case in other court: 2nd circuit, 05-01590
2nd Circuit, 06-01822-cv Cause: 42:1983 Civil Rights Act
Plaintiff
Paul Marriott both individually and on behalf of a class of others similarly situated

Date Filed: 04/29/2003 Date Terminated: 05/15/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexander E. Barnett Mason Law Firm - NY Office 1120 Avenue of the Americas Suite 4019 New York, NY 10036 212-362-5770 Fax: 917-591-5227 Email: abarnett@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E. Menken Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212-509-1616 Fax: 212-509-8088 Email: bmenken@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer R. Keach, III Office of Elmer R. Keach, III 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 518-434-1718 Fax: 518-770-1558 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary E. Mason

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Plaintiff Barbara Davis

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Mason Law Firm - DC Office 1225 19th Street N.W. Suite 500 Washington, DC 20036 202-429-2290 Fax: 202-429-2294 Email: gmason@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Rozger Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212-509-1616 Fax: 212-509-8088 Email: jrozger@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander E. Barnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles A. Schneider Mason Law Firm - DC Office 1225 19th Street N.W. Suite 500 Washington, DC 20036 202-429-2290 Fax: 202-429-2294 Email: cschneider@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Mason (See above for address) LEAD ATTORNEY

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Plaintiff Andy Rivera
V. Defendant County of Montgomery

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ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander E. Barnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles A. Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas Wilson, Elser Law Firm - Albany Office 677 Broadway - 9th Floor Albany, NY 12207-2996 518-449-8893 Fax: 518-465-2548 Email: marangast@wemed.com LEAD ATTORNEY

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Defendant Montogomery County Sheriff's Department
Defendant Michael Amato Individually and as Sheriff of the County of Montgomery TERMINATED: 12/20/2006
Defendant Jeffrey Smith individually and as Undersheriff of the County of Montgomery TERMINATED: 12/20/2006
Defendant Kevin Snell individually and as former Undersheriff of the County of Montgomery

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ATTORNEY TO BE NOTICED
Thomas W. Hyland Wilson, Elser Law Firm - NY Office 150 East 42nd Street New York, NY 10017-5639 212-490-3000 Fax: 212-490-3038 Email: hylandt@wemed.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY

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TERMINATED: 12/20/2006
Defendant John Pecora individually and as Jail Administrator in the Montgomery Couty Sheriff's Department TERMINATED: 12/20/2006
Defendant Sue Buddles individaully and as Lieutenant in the Montgomery County Sheriff's Department TERMINATED: 12/20/2006

ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theresa B. Marangas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Hyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/29/2003 04/29/2003 04/29/2003 05/20/2003

#

Docket Text

1 COMPLAINT filed; FILING FEE $ 150.00 RECEIPT # 67628 ; Service deadline 6/28/03 for Sue Buddles, for John Pecora, for Kevin Snell, for Jeffrey Smith, for Michael Amato, for Montgomery Co/Sherif, for County of Montgomery (wbl) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 04/30/2003)
SUMMONS(ES) issued for County of Montgomery, Montgomery Co/Sherif, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles (wbl) (Entered: 04/30/2003)
General Order 25 Filing Order Issued; Conference set before Magistrate Judge David E. Peebles in Syracuse, Status Conference at 11:30 8/21/03 , Deadline for filing Case Management Plan, 8/7/03 , ADR Track Case. (wbl) (Entered: 04/30/2003)
2 LETTER/REQUEST dated 5/16/03 and ORDER; Letter addressed to MJ Peebles from Elena DeFio, Esq.; Counsel requestss that the Court give all named defts. until 6/30/03 to answer the compalint; So Ordered ( Signed by MJ Peebles 5/20/03 ) (kcl) (Entered: 05/21/2003)

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06/30/2003
07/01/2003 07/17/2003 07/18/2003 07/31/2003 08/21/2003 09/10/2003 09/10/2003

3 Minute entry: Telephone Conference held before Judge Peebles. Defts. have requested an extension of time to answer the complaint until 7/18/03. Defts. explain that there was some uncertainty as to who would be representing the county, but this has been resolved as of 6/25/03. Pltf. does not object to the extension of time to answer, but does object to a stay of discovery. Judge doesn't read Defts.' letter as a request to stay the discovery period, however, the Defts. may be requesting this in the near future. Judge advises parties that until a Rule 26(f) meeting is held, no discovery can go forward. Pltf's. intend to move for preliminary injunction. Judge advises Pltf. to wait until the time for Defts. to appear has expired & the Rule 26(f) meeting has been held. Counsel is to meet & confer before this meeting is held. Judge advises Defts. to prepare a stipulation extending Defts. time to answer the complaint until 7/18/03 for his signature. APP: Elmer Keach, Esq. & Bruce Menken, Esq. for Pltf. & Joseph Francoeur, Esq., Thomas Hyland, Esq. & Theresa Puleo, Esq. for Defts.. Clerk: Shelly Lazzaro (sal) (Entered: 07/01/2003)
Atty. Joseph Francoeur will be representing the Defts. in this action. However, he is not admitted in this district yet. Atty. Francoeur advised that he is admitted in the SDNY & will be sending in the paperwork today to be admitted in this district. (sal) (Entered: 07/01/2003)
11 NOTICE OF MOTION by Thomas W. Hyland, Esq., for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery to Dismiss , Hearing set for 10:00 a.m. on 10/24/03 Motion returnable before Judge/Mag. Judge: David N. Hurd. This motion was received by the Court on 9/23/03, but is considered filed as of 7/17/03, pursuant to the CJRA Reporting requirements instituted 3/1/00. (jel) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 09/24/2003)
4 LETTER by Thomas Hyland, Esq. on behalf of defts. County of Montgomery, Montgomery Co/Sherif, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles pursuant to Local Rule 7.1(b) regarding Motion: Dismiss Date Served upon counsel: 7/17/03 (kcl) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 07/18/2003)
5 Letter REQUEST dd 7/28/03 and ORDER by Elmer Keach, III, Esq for the pltf, requesting to Extend Time to file pltf's responding papers to the defts' Motion to Dismiss and request for preliminary injunction for 10 days, until 8/21/03 and requests that defts receive an additional 10 days to reply-defts' do not oppose request; So Ordered. (signed by Judge David N. Hurd) (see) (Entered: 07/31/2003)
16 NOTICE OF CROSS MOTION by Jason J. Rozger, Esq., for Paul Marriott for Preliminary Injunction , Hearing set for 10:00 a.m. on 10/24/03. This motion was received by the court on 9/23/03, but is considered filed as of 8/21/03, pursuant to the CJRA Reporting requirements instituted 3/1/00. (jel) (Entered: 09/24/2003)
Tele-conference held (kcl) (Entered: 09/11/2003)
6 Minute entry of Telephone conference before MJ Peebles; App: Elmer Keach, Bruce Menkin and Jason Rozger, Esqs. for pltf., Joseph Francoer and Theresa Marangas, Esqs. for defts., Clerk C. McNulty; Parties discussed the motions that are pending before Judge McCurn; Staying the action was discussed and MJ

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09/10/2003 09/16/2003 09/16/2003 09/16/2003
09/23/2003 09/23/2003 09/23/2003 09/23/2003 09/23/2003 09/23/2003

Peebles told the parties he would not stay discovery; He also stated that he would not hold the Rule 16 conference until the motions are decided and adjourned it to 10:30 12/18/03 , Deadline for filing Case Management Plan, 12/8/03 (kcl) (Entered: 09/11/2003)
7 Scheduling Notice: Letter advising counsel for parties that the Court has reset the Rule 16 conference to 12/18/03 at 10:30 in person, unless permission for a telephonic conference is granted; Notice sent by Cindy McNulty, Judicial Assistant to MJ Peebles (kcl) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 09/11/2003)
8 Letter dd 9/12/03 by Joseph Francoeur, Esq for the defts, seeking clarification with regard to whether its reply memorandum to its dispositive motion should address pltf's cross-motion for injunctive relief. If so, also seeks confirmation as to whe the combined response is due. (see) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 09/17/2003)
9 Letter dd 9/15/03 by Jason Rozger, Esq for the pltfs, in response to defts' letter dd 9/12/03. (see) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 09/17/2003)
10 ORDER that upon consideration of the letter-submissions of the parties, it is ORDERED that defts may file and serve a response to pltfs' cross motion on or before 9/23/03; that pltfs may file and serve a reply, if any, on or before 10/3/03; that the motions are returnable at 10:00 am on 10/24/03 in Albany, NY, at which time oral argument will be heard. (signed by Judge David N. Hurd) (see) (Entered: 09/17/2003)
11 MEMORANDUM OF LAW by Thomas W. Hyland, Esq., for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery in support of the [11-1] motion to Dismiss (jel) (Entered: 09/24/2003)
12 Copy of Case law in support [11-1] motion to dismiss. (jel) Additional attachment(s) added on 11/1/2005 (see, ). (Entered: 09/24/2003)
13 AFFIRMATION along with Exhibit F by Thomas W. Hyland, Esq., for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery Re: in support of the [11-1] motion to Dismiss (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
14 AFFIDAVIT by Jeffrey Smith for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery Re: in support of the [11-1] motion to Dismiss (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
15 AFFIDAVIT along with Exhibits A-E by John F. Pecora for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery Re: in support of the [11-1] motion to Dismiss (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
16 MEMORANDUM OF LAW by Jason J. Rozger, Esq., for Paul Marriott in opposition to the [11-1] motion to Dismiss, in support of the [16-1] cross motion for Preliminary Injunction (jel) Additional attachment(s) added on 11/8/2005

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09/23/2003 09/23/2003 09/23/2003 10/03/2003 10/14/2003
10/16/2003 10/17/2003 10/17/2003
10/21/2003

(see, ). (Entered: 09/24/2003)
17 AFFIRMATION by Theresa B. Marangas, Esq., for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery Re: in opposition to the [16-1] cross motion for Preliminary Injunction, in further support of the [11-1] motion to Dismiss (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
18 MEMORANDUM OF LAW by Theresa B. Marangas, Esq., for Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery in opposition to the [16-1] cross motion for Preliminary Injunction, in further support of the [11-1] motion to Dismiss (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
19 Case law submitted by defendants counsel in regards to the motion to dismiss and motion for preliminary injunction. (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 09/24/2003)
20 REPLY MEMORANDUM OF LAW by Paul Marriott in support of [16-1] cross motion for Preliminary Injunction, and in response to [11-1] motion to Dismiss (wjg) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 10/03/2003)
21 Letter dd 10/9/03 by Joseph Francoeur, Esq for the defts, requesting that the portions of pltfs' reply dated 10/2/03 to the cross-motion for injunctive relief, which address issues raised in opposition to defts' motion be disregarded. Local Rule 7.1(b)(1) states that "the cross-moving party may reply in further support of the cross-motion with a reply brief", non-moving party is NOT permitted to submit opposition to a motion and a reply to the same motion. Specifically, section II (B) 2 is the only portion that should be considered as appropriate for the pltfs' reply. In the event the Court deems the pltfs' entire reply as appropriate, the defts request an opportunity to serve a sur-reply. (see) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 10/15/2003)
22 Scheduling Notice advising counsel that the following Motion Hearings have been reset for 10:30 am on 10/24/03 with Oral Argument before Judge Hurd in Albany, NY: pltf's [16-1] cross motion for Preliminary Injunction and deft's [11-1] motion to Dismiss . (Signed by CRD Craig Minor) (see) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 10/17/2003)
Discovery hearing held (kcl) (Entered: 10/20/2003)
23 Minute entry of Discovery Conference before MJ Peebles; App: Elmer Keach, Bruce menken and Jason Rozger, Esqs. for pltf., Joseph Francoer and Theresa Marangas, Esqs. for deft., Clerk CLM; Pltf. wants to take 30(b)(6) deposition of deft.; Deft. would prefer to meet after 11/5/03 conference has taken place; After further discussion MJ Peebles tells the parties that he is going to issue a short form Order directing the deft. to respond to outstanding discovery by 11/21/03 and also allowing pltf. to take the 30(b)(6) deposition of deft. the week of 12/8/03; the telephone conference set for 12/18/03 remains in effect (kcl) (Entered: 10/20/2003)
24 ORDER that defts are hereby directed to respond in an appropriate fashion either by objecting and/or producing the documents sought to a Rule 34 document discovery request served upon plaintiffs on or about 9/22/03; complaince shall

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10/24/2003 10/27/2003 11/06/2003 11/10/2003 12/01/2003
12/02/2003

occur on or abefore 11/21/03; thereafter at a mutually convenient date, time, and place during the week of 12/8/03, or such othe time as is mutually agreed; defts shall produce one or moe witnesses to testify in accordance with Rule 30(b)(6) deposition notice also served by plaintiff; on or about 9/22/03; and the Clerk is directed to promptly forward copies of this order to counsel for the parties in this action. ( signed by Magistrate Judge David E. Peebles ) Date Entered: 10/21/03 (mnm) (Entered: 10/22/2003)
25 ORDER that pursuant to the oral decision of the Court, entered into the record after hearing oral argument on 10/24/03, in Albany, NY, it is hereby Ordered: denying defts' [11-1] motion to Dismiss; defts' motion to deny class status is DENIED, without prejudice; denying pltf's [16-1] cross motion for Preliminary Injunction; deft shall file and serve an Answer to the complaint on or before 11/7/03 for County of Montgomery, Co/Sherif, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles . (signed by Judge David N. Hurd) Date Entered: 10/24/03 (see) (Entered: 10/24/2003)
26 Minute entry of a Motion Hearing before Judge Hurd on 10/24/03, APPR: Elmer Keach, Esq, Bruce Menken, Esq & Jason Rozger, Esq for the pltf; and Theresa Marangas, Esq & Joseph Fracoeur, Esq for defts. Defts' motion to dismiss (11-1)-DENIED; Pltf's cross motion for injunctive relief (16-1)-DENIED. Summary order to be filed. Defts to file answer by 11/7/03. [10:35-11:00]; Court Clerk: Craig Minor; Court Reporter/ECRO: Theresa Berical (see) (Entered: 10/27/2003)
27 TRANSCRIPT OF PROCEEDINGS (Motion Argument & Decision) filed for the date of 10/24/03 before Judge David N. Hurd in Albany. (jel) (Entered: 11/07/2003)
28 ANSWER to Complaint by Sue Buddles, John Pecora, Kevin Snell, Jeffrey Smith, Michael Amato, Montgomery Co/Sherif, County of Montgomery (Attorney Theresa B. Marangas), (jel) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 11/11/2003)
29 Minute entry: Discovery Telephone Conf. held before Judge Peebles. Defts. are seeking guidance from the court regarding discovery dispute. Pltf. has requested discovery material from April 2000 to the present that contains social security numbers, dates of birth, and criminal charges of certain individuals. Defts. advise that there are approximately 2500 requests all together and are willing to give up the names and addresses of the individuals, but there are privacy issues. Pltf. states that it would be hard to locate these individuals w/out this information if they relocate. Judge sets up briefing schedule. Pltf's. brief is due on 12/5/03 (5 page limit, not including attachments). Defts'. brief is due 12/12/03 (5 page limit, not including attachments). If there is to be a reply, this is due on 12/16/03 (3 page limit). In-person discovery conf. scheduled for 12/18/03 at 10:00 a.m.. Rule 16 Conf. will follow. set Pretrial Conference for 10:00 12/18/03 APP: Bruce Menken, Esq., Jason Rozger, Esq. Joseph Francour, Esq. & Theresa Marangas, Esq.. Clerk: Shelly Lazzaro (sal) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 12/02/2003)
30 Scheduling Notice: an in-person discovery conference has been scheduled for December 18, 2003 at 10:00 a.m. before Judge Peebles. This conference will be held in Courtroom 7 on the 10th floor of the U.S. Courthouse in Syracuse, New

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12/09/2003 12/09/2003 12/10/2003 12/12/2003
12/23/2003 12/23/2003 12/24/2003 12/29/2003 12/29/2003

York. A briefing schedule has been set up as follows: plaintiff's brief is due on 12/5/03 (5 page limit, not including attachments); defendants' brief is due on 12/12/03 (5 page limit, not including attachments); and if there is a reply to be filed, this will be due on 12/16/03 (3 page limit). All of these letter briefs can be submitted by facsimile, however, an original must follow by regular mail. After the discovery conference is held, a Rule 16 conference will be conducted on that same day, December 18, 2003. The parties are directed to file their Civil Case Management Plan with the court at least ten (10) business days in advance of that date. (sal) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 12/02/2003)
31 LETTER BRIEF submitted by Attorney Bruce Menken on behalf of plaintiff regarding outstanding discovery issues discussed during the 12/1/03 telephone conf. before Judge Peebles. (sal) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 12/09/2003)
32 Proposed Civil Case Management Plan Submitted by Theresa Marangas, Esq. on behalf of the defendants. (sal) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 12/09/2003)
33 Proposed Civil Case Management Plan Submitted by Elmer Keach, Esq. on behalf of plaintiff. (sal) Additional attachment(s) added on 11/8/2005 (see, ). (Entered: 12/10/2003)
34 LETTER BRIEF dated 12/12/03; Letter addressed to MJ Peebles from Joseph Francouer, Esq., counsel for defts. Letter is in regard to privacy concerns defts. raised during pltfs demand for individuals' personal information on the 12/1/03 telephone conference; Attached Exhibit A (kcl, ) Additional attachment(s) added on 12/16/2003 (kcl, ). (Entered: 12/16/2003)
35 ORDER: Plaintiff's motion to compel discovery is granted conditionally; w/in 60 days defts. shall produce to pltfs counsel the information set within paragraph 2 of the ordered section herein; So Ordered. Signed by Judge David E. Peebles on 12/23/03. (kcl, ) (Entered: 12/29/2003)
37 LETTER BRIEF dated 12/16/03 by Bruce Menken, Esq. for pltf. Paul Marriott in furhter support of motion to compel; Attached Exhibit A (kcl, ) (Entered: 12/29/2003)
36 ORDER: Any motion by pltf. for class certification in this case shall be filed before District Judge Hurd by 5/14/03; Signed by Judge David E. Peebles on 12/24/03. (kcl, ) (Entered: 12/29/2003)
38 Minute Entry of Discovery Conference held before Judge David E. Peebles; App: Elmer Keach, Esq. for pltf., Joseph Francoer, and Theresa Marangas, Esqs. for defts., Clerk SAL; Discovery Hearing held on 12/29/2003. (Tape #2003-44.) (kcl, ) (Entered: 12/30/2003)
39 Minute Entry of Rule 16 confernece before Judge David E. Peebles; App: Elmer Keach, Esq. for pltf., Joseph Francoeur, Esq. and Theresa Marangas, Esq. for deft.s, clerk SAL; Initial Pretrial Conference held on 12/29/2003. Next telephone confernece set for 3/31/04 at 3:30, defts. atty to initiate (kcl, ) (Entered: 12/30/2003)

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12/29/2003
01/15/2004 01/16/2004 01/20/2004
01/20/2004 01/20/2004 01/20/2004 01/23/2004
01/23/2004 01/30/2004

40 ORDER advising defense counsel to send a letter to each client advising of a potential conflict of interest w/ in 10 days of this order. If deft. wishes to stay w/ current counsel, that client must provide the court with an affidavit stating that he/she has voluntarily chosen to proceed w/ joint representation. Signed by Judge David E. Peebles on 12/29/03. (kcl, ) (Entered: 12/30/2003)
41 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 2weeks. Preferred Trial Location: Albany. Joinder of Parties due by 9/3/2004. Amended Pleadings due by 9/3/2004. Discovery due by 12/31/2004. Motions to be filed by 2/28/2005. Trial Ready Deadline is 4/29/2005.. Signed by Judge David E. Peebles on 12/29/03. (kcl, ) (Entered: 12/30/2003)
42 TRANSCRIPT of Proceedings held on 12/18/03 before Judge Judge Peebles. (kcl, ) (Entered: 01/15/2004)
43 Minute Entry of Discovery Conference held before Judge David E. Peebles; App: Elmer Keach, Esq. for pltf., Bruce Menken, Esq. for pltf., Joseph Francouer and Theresa Marangas, Esqs. for deft., Clekr CLM; Discovery Hearing held on 1/16/2004. (kcl, ) (Entered: 01/16/2004)
44 LETTER/NOTICE dated 1/6/03 by Theresa Marangas, Esq., counsel for defts. Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell; Counsel requests MJ Peebles' assistance Re: the proposed Confidentiality Agreement (kcl, ) (Entered: 01/20/2004)
45 LETTER/NOTICE dated 1/7/04; Letter addressed to MJ Peebles from Elmer Keach, Esq., counsel for pltf. Paul Marriott; Counsel requests that a Discovery conference be set (kcl, ) (Entered: 01/20/2004)
46 LETTER/NOTICE dated 1/15/04; Letter addressed to MJ Peebles from Joseph Francoeur, Esq.; Counsel requests the Court's input re: Discovery (kcl, ) (Entered: 01/20/2004)
47 LETTER/NOTICE dated 1/15/04; LEtter addressed to MJ Peebles from Elmer Keach, Esq.; Counsel requests that the Court Compel the testimony of Mr. Robinson and deny defts. Protective Order (kcl, ) (Entered: 01/20/2004)
48 LETTER BRIEF 1-23-04 by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell in response to the issue of whether deposition discovery should be limited to individuals who were assiged to booking/admissions. (Marangas, Theresa) Modified on 1/26/2004, description of brief. (see) (Entered: 01/23/2004)
49 First MOTION to Compel Physical Inspection and compliance with Rule 30(b)(6) deposition by Paul Marriott. (Attachments: # 1 Affidavit counsel's affirmation in support of motion to compel discovery)(Keach, Elmer) (Entered: 01/23/2004)
50 LETTER BRIEF by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Affidavit)(Marangas, Theresa) (Entered: 01/30/2004)

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02/04/2004 02/12/2004 02/17/2004
02/23/2004 02/24/2004 02/24/2004 02/24/2004

51 LETTER BRIEF In Opposition to Defendants' Motion for Protective Order and in Support of Application for Sanctions, Costs and Attorneys' Fees by Paul Marriott. (Attachments: # 1 Affidavit Elmer Robert Keach, III# 2 Affidavit Jason Rozger)(Keach, Elmer) (Entered: 01/30/2004)
52 LETTER BRIEF Providing Supplemental Case Authority by Paul Marriott. (Keach, Elmer) (Entered: 01/31/2004)
53 AFFIDAVIT re 50 LETTER BRIEF filed on 1/30/04 by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 02/02/2004)
54 ORDER APPROVING WAIVER OF POTENTIAL CONFLICT; the Affidavits of Douglas Landon, Esq., Montgomery County Attorney, Sheriff Michael Amato, John Pecora, Kevin Snell, Jeffrey Smith, Richard Denton, and Lt. Buddles have provided the Court w/ sufficient notice of potential conflict; the Aforementioned Affidavits, as well as their Counsel's letters to them are to be filed under seal w/ the Court; . Signed by Judge David E. Peebles on 2/4/04. (kcl, ) (Entered: 02/09/2004)
55 SEALED DOCUMENT - maintained in Clerk's Office and not available for electronic viewing; Affidaivts of: D. Landon, M. Amato, J. Pecora, K. Snell, J. Smith, R. Denton, S. Buddles (kcl, ) (Entered: 02/09/2004)
57 Minute Entry for Digitally recorded discovery conference held before Judge David E. Peebles : Discovery Hearing held on 2/12/2004. (Tape #2004-21.) (kcl, ) (Entered: 02/19/2004)
56 ORDER granting 49 Motion to Compel under certain conditions listed within; Pltfs request for an order compelling the production of a further 30(b)(6) deposition of witness on behalf of the County is denied; Pltfs request for a protective order limiting the pltf. in his ability to conduct depositions is denied without prejudice; Pltfs application for award of costs is denied without prejudice. Signed by Judge David E. Peebles on 2/17/04. (kcl, ) (Entered: 02/18/2004)
58 Letter from Elmer Robert Keach, III for Paul Marriott requesting Discovery Conference Scheduling Time for Physical Inspection. (Keach, Elmer) (Entered: 02/23/2004)
59 LETTER BRIEF Judge Peebles letter brief re: inspection time by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Francoeur, Joseph) (Entered: 02/24/2004)
60 LETTER BRIEF Judge Peebles Letter Brief re: inspection time WITH ATTACHMENTS by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Keach letter re: inspection time# 2 Affidavit)(Francoeur, Joseph) (Entered: 02/24/2004)
61 Letter from Elmer Keach for Paul Marriott requesting Confirming Conferernce with Court on March 4, 2004. (Keach, Elmer) (Entered: 02/24/2004)

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03/11/2004 03/23/2004
03/29/2004 03/31/2004
03/31/2004 04/19/2004

62 Minute Entry for proceedings held before Judge David E. Peebles : Discovery Hearing held on 3/3/2004. (kcl, ) (Entered: 03/04/2004)
63 Minute Entry for proceedings held before Judge David E. Peebles : Discovery Hearing held on 3/4/2004. (Tape #2004-28.) (kcl, ) (Entered: 03/08/2004)
64 ORDER: It is ordered that the inspection that is to be conducted pursuant to MJ Peeble's 2/17/04 Order, shall occur 3/10/04 between the Hours of 12:00 noonand 1:00pm. Signed by Judge David E. Peebles on 3/5/04. (kcl, ) (Entered: 03/09/2004)
65 STIPULATION executed by all parties submitted by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Enclosure letter of Stipulation and Protective Order to be So Ordered)(Marangas, Theresa) (Entered: 03/10/2004)
66 PROTECTIVE ORDER. Signed by Judge David E. Peebles on 3/11/04. (kcl, ) (Entered: 03/11/2004)
67 STIPULATION for Site Inspection to be So Ordered by Magistrate Peebles by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Enclosure letter of Stipulation for Site Inspection)(Marangas, Theresa) (Entered: 03/23/2004)
68 STIPULATION AND ORDER FOR SITE INSPECTION. Signed by Judge David E. Peebles on 3/28/04. (kcl, ) (Entered: 03/29/2004)
69 Minute Entry of Telephone Conference held before Judge David E. Peebles on 3/31/2004. Case status discussed, parties are making progress with discovery, deft raised an issue regarding lead counsel being unavailable from 4/23/04 to 7/8/04 and requests a moratorium on discovery for that period, plaintiff opposes request, MJ Peebles provided guidance on this issue but did not make a ruling concerning it, next telephone conference set for 7/20/04 at 4:00 PM, plaintiff to initiate. App: Elmer R. Keach, III, Esq., Jason Rozger, Esq., Joseph L. Francoeur, Esq., Theresa Marangas, Esq., Court Clerk: Cindy McNulty; Time: 3:30-3:45 PM (jmb) (Entered: 04/01/2004)
70 SCHEDULING ORDER: setting the next Telephone Conference set for 7/20/2004 at 4:00 PM before Magistrate Judge Peebles. (Atty for plaintiff shall initiate the call.) Signed by Judge David E. Peebles on 3/31/04. (jmb) (Entered: 04/01/2004)
72 Minute Entry for telephone discovery conference held before Judge David E. Peebles on 4/19/04: APP: Bob Keach, Esq., Theresa Marangas, Esq., & Joseph Francour, Esq.. Defendants would like to stay discovery pending the return of Attorney Franceour who will be out of the country until July. MJ Peebles told the parties that he would not stay discovery at least in part to preclude depositions be taken and dispositive motions being filed. Defendants request discovery responses from plaintiffs prior to the deposition of Mr. Marriott whose deposition will be scheduled the beginning of May. Atty. Keach stated that he would produce those responses to defendants. Defendants stated that they would like to amend their answer. They will provide a copy of the amended answer to plaintiffs

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05/05/2004 05/14/2004 05/20/2004

and if the parties cannot stipulate then MJ Peebles gave defendants permission to file a motion to amend. (sal, ) (Entered: 04/20/2004)
71 Letter from Elmer Keach for Paul Marriott requesting Leave to File a Brief in Excess of 25 Pages. (Keach, Elmer) (Entered: 04/20/2004)
73 LETTER BRIEF in response to plaintiff's request to file an overlength brief by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 04/20/2004)
74 ORDER that Defts. request made during a conf. held on 4/19/04 for a partial stay in this action be DENIED, w/out prejudice to Defts. right to request that any dispositive motion filed in counsel's absence be adjourned by District Judge David N. Hurd until his return, in which case it will be the decision of Judge Hurd as to whether or not such a request, if made, will be granted. Signed by Judge David E. Peebles on 4/21/04. (sal, ) (Entered: 04/21/2004)
75 Letter request dd 4/19/2004 by Elmer Keach, III, Esq for the pltf, requesting leave of Court to file an overlength brief not to exceed 40 pages to its combined motion for class certification, partial summary judgment, and prelimiary injunction; So ORDERED. Signed by Judge David N. Hurd on 4/23/2004. (see) (Entered: 04/27/2004)
76 Letter request and in response to document 75 dd 4/20/2004 by Theresa Marangas, Esq for the defts, requesting leave of Court to file an overlength brief, not to exceed 40 pages in length; So ORDERED. Signed by Judge David N. Hurd on 4/23/2004. (see) (Entered: 04/27/2004)
77 Minute Entry for proceedings held before Judge David E. Peebles : Telephone Conference held on 5/4/2004. APP: Elmer Keach, III, Esq., Jason Rozger, Esq. & Bruce Menken, Esq. for Pltf. & Theresa Marangas, Esq. & Richard Porter, Esq. for Defts.. Deposition is scheduled for a non-party witness on May 6th. After arguments are heard from counsel, Judge sets up a briefing schedule. Defts. letter brief is due by 5/14/04. Pltfs. letter brief is due by 5/21/04. Both letter briefs are limited to 5 pages excluding attachments. Judge gives parties permission to submit documents for in camera review if necessary. Judge will review these submissions once submitted to see if further argument is necessary. Parties would like an extension of the ddl. to file motion for class certification. Judge extends this ddl. to May 28th. (sal, ) (Entered: 05/05/2004)
78 ORDER that the request made by plaintiff's counsel during a telephone conf. held on 5/4/04 before Magistrate Judge Peebles for an extension of the deadline to file a motion for class certification is granted. The deadline to file a motion for class certification is extended to May 28, 2004. Signed by Judge David E. Peebles on 5/5/04. (sal, ) (Entered: 05/05/2004)
79 LETTER BRIEF by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1)(Marangas, Theresa) (Entered: 05/14/2004)
80 CERTIFICATE OF SERVICE by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell re 79 LETTER BRIEF (Marangas, Theresa) (Entered:

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06/01/2004
06/01/2004 06/01/2004

05/20/2004)
81 LETTER BRIEF Letter brief in response to Defendants' letter brief of May 14, 2004 by Paul Marriott. (Attachments: # 1 Exhibit Exhibit A)(Rozger, Jason) (Entered: 05/21/2004)
82 Letter from Elmer R. Keach, III for Paul Marriott requesting Enlargement of Time for One Business Day to File Class Certification and Preliminary Injunction Motion Papers , On Consent. (Keach, Elmer) (Entered: 05/27/2004)
**[83] MOTION to Amend/Correct Complaint was STRICKEN FROM THE COURT'S RECORD PER ORDER 95 OF MJ PEEBLES DATED 6/9/04** Modified on 10/13/2004 to remove document (cbm, ). (Entered: 06/01/2004)
84 MOTION to Certify Class Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. by Paul Marriott. (Attachments: # 1 Affidavit Affirmation of Jason Rozger# 2 Exhibit Ex. A Proposed amended complaint# 3 Exhibit Ex. B - Search Policies)(Rozger, Jason) (Entered: 06/01/2004)
85 MOTION to Certify Class Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. by Paul Marriott. (Attachments: # 1 Exhibit Ex. D - Admissions Policies# 2 Exhibit Ex. E - Pecora affidavit# 3 Exhibit Ex. F - 30(b)(6) deposition notice# 4 Exhibit Ex. G - Order of 2 17 04# 5 Exhibit Ex. H - 30(b)(6) Transcript Day 1# 6 Exhibit Ex. I 30(b)(6) Transcript Day 2# 7 Exhibit Ex. J - Sue Buddles Transcript)(Rozger, Jason) (Entered: 06/01/2004)
86 LETTER BRIEF Memorandum of Law in Support of Class Certification by Paul Marriott. (Keach, Elmer) (Entered: 06/01/2004)
87 MOTION to Certify Class Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. by Paul Marriott. (Attachments: # 1 Exhibit Ex M - Dora Hurd deposition# 2 Exhibit Ex. O - Table of SS Offenses# 3 Exhibit Ex. P - Booking Officer Post Order# 4 Exhibit Ex. Q Kahler order on prelim. app.# 5 Exhibit Ex. R - Calvin v. Sheriff# 6 Exhibit Ex. S - Bynum v. DC# 7 Exhibit Ex. T - Gary v. Sheahan# 8 Exhibit Ex. U - Tyson v. City of NY# 9 Exhibit Ex. V - Eddleman v. Jefferson# 10 Exhibit Ex. W Marriott Affidavit# 11 Exhibit Ex. X - Davis Affidavit# 12 Exhibit Ex. Y Ashline Affidavit# 13 Exhibit Ex. Z - Owens v. Delaware# 14 Exhibit Ex. AA Lewis v. Gagne# 15 Exhibit Ex. EE - Def. letter brief 12 17 03)(Rozger, Jason) (Entered: 06/01/2004)

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06/02/2004 06/02/2004 06/02/2004

88 MOTION to Certify Class Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. Motion Hearing set for 7/23/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/6/2004 Reply to Response to Motion due by 7/12/2004. by Paul Marriott. (Attachments: # 1 Exhibit Ex. N, Robinson Transcript pt. 1 of 8# 2 Exhibit Ex. N, Robinson transcript pt. 2 of 8# 3 Exhibit Ex N, Robinson transcript pt. 3 of 8# 4 Exhibit Ex. N, Robinson Transcript pt. 4 of 8# 5 Exhibit Ex. N, Robinson Transcript pt. 5 of 8# 6 Exhibit Ex. N, Robinson Transcript pt. 6 of 8# 7 Exhibit Ex. N, Robinson Transcript pt. 7 of 8# 8 Exhibit Ex. N, Robinson Transcript pt. 8 of 8# 9 Exhibit Ex. C - Sheriff's Annual Reports# 10 Exhibit Ex. K - Denton Transcript pt. 1# 11 Exhibit Ex. K - Denton Transcript pt. 2# 12 Exhibit Ex. L Gardner Transcript pt. 1# 13 Exhibit Ex. L - Gardner Transcript pt. 2# 14 Exhibit Ex. BB - Grassian affidavit# 15 Exhibit Ex. CC - Ierardi v. Lorillard# 16 Exhibit Ex. DD - Wilton v. Gallagher)(Rozger, Jason) (Entered: 06/02/2004)
89 Letter request dd 6/1/2004 by Theresa Marangas, Esq for the defts, jointly requesting to extend the motion dates to the 88 MOTION to Certify Class as follows: 1) return date of 8/27/2004 at 10:00 am in Albany, 2) defts' opposition/cross motion to be filed by 8/6/2004, and 3) pltf's reply to be filed by 8/20/2004; So Ordered.Signed by Judge David N. Hurd on 6/2/2004. (see) (Entered: 06/02/2004)
Set/Reset Deadlines as to 87 MOTION to Certify Class. Response to Motion due by 8/6/2004 Reply to Response to Motion due by 8/20/2004. Motion Hearing set for 8/27/2004 10:00 AM in Albany before Judge David N. Hurd. (see) (Entered: 06/02/2004)
90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88 Motion Hearing set for 8/27/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 8/10/2004 Reply to Response to Motion due by 8/16/2004. Motion Hearing set for 8/27/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 8/10/2004 Reply to Response to Motion due by 8/16/2004. by Paul Marriott. (Attachments: # 1 Memorandum of Law # 2 Affidavit of Jason Rozger In Support of Class Certification# 3 Proposed Amended Complaint (Ex. A)# 4 MCJ Search Policies (Ex. B)# 5 Sheriff's Annual Reports (Ex. C)# 6 MCJ Admissions Policies (Ex. D)# 7 Affidavit of John Pecora (Ex. E)# 8 Plaintiff's 30(b)(6) Notice (Ex. F)# 9 Order of USMJ Peebles, Feb. 17, 2004 (Ex. G)# 10 Deposition of John Pecora, Day One (Ex. H)# 11 Deposition of John Pecora, Day Two (Ex. I)# 12 Deposition of Sue Buddles (Ex. J)# 13 Deposition of Richard Denton (Ex. K)# 14 Deposition of Donald Gardner (Ex. L)# 15 Deposition of Dora Hurd (Ex. M)# 16 Deposition of Aaron Robinson (Ex. N)# 17 Table of Strip Searchable Offenses (Ex. O)# 18 Booking Area Post Order (Ex. P)# 19 Prelininary Approval Order, Kahler v. County of Rensselaer (Ex. Q)# 20 Unreported Decision -- Calvin v. Sheriff of Will County (Ex. R)# 21 Unreported Decision -- Bynum v. District of Columbia (Ex. S)# 22 Unreported Decision -- Gary v. Sheahan (Ex. T)# 23 Bench Decision on Class Certification -- Tyson v. City of New York (Ex. U)# 24 Unreported decision -- Eddleman v. Jefferson Co. (Ex. V)# 25 Marriott Affidavit (Ex. W)# 26 Davis Aff. (Ex. X)# 27 Ashline Aff. (Ex. Y)# 28 Unreported Decision -- Owens v. County of Delaware (Ex. Z)# 29 Unreported Decision -Lewis v. Gagne (Ex. AA)# 30 Aff. of Stuart Grassian, Ph.D. (Ex. BB)# 31

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06/11/2004 06/24/2004 06/24/2004
06/25/2004

Unreported Decision -- Ierardi v. lorillard (Ex. CC)# 32 Unreported Decision -Wilton Partners v. Gallagher (Ex. DD)# 33 Letter Brief of Defendants, Dec. 17, 2003 (Ex. EE))(Keach, Elmer) (Entered: 06/02/2004)
91 ORDER Granting the 82 Letter Request filed by Paul Marriottto file the class certificationand preliminary injunction papers on 6/1/04. Signed by Judge David E. Peebles on 6/2/04. (jlm) (Entered: 06/03/2004)
92 LETTER REQUEST to Amend/Correct Docket entries 84 through 88. by Paul Marriott.(Rozger, Jason) Modified on 6/4/2004 (sal, ). (Entered: 06/03/2004)
CLERK'S CORRECTION OF DOCKET ENTRY : Docket number 92 was corrected due to Attorney Rozger filing it as a motion when in fact it is a letter request. (sal, ) (Entered: 06/04/2004)
93 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting rejection of plaintiffs' motion papers electronically filed as Document Number 83, or in the alternative, a court conference. (Marangas, Theresa) (Entered: 06/04/2004)
94 Letter from Elmer Keach for Paul Marriott requesting Motion Conference with the Court Regarding Request for Permissive Intervention. (Keach, Elmer) (Entered: 06/09/2004)
95 DOCUMENT REJECTION ORDER as to Plaintiff returning Motion to Amend Complaint; Document rejected due to non-compliance with with LR 7.1(b); Document [83] is stricken without prejudice from the record and will not be considered. Signed by Judge David E. Peebles on 6/9/04. (kcl, ) (Entered: 06/10/2004)
96 Letter from Elmer Keach for Paul Marriott requesting Confirming Conference on Thursday, June 17, 2004 at 12:00 PM.. (Keach, Elmer) (Entered: 06/11/2004)
97 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting permission to file an additonal 15 pages in the defendants' opposition brief. (Marangas, Theresa) (Entered: 06/24/2004)
99 Minute Entry for Discovery Hearing held on 6/24/2004 before Judge David E. Peebles, APPR: Elmer Keach, Esq for pltf; Jason Rozger, Esq for pltf; Theresa Marangas, Esq for defts. Judge gives a ruling regarding discovery of the four disputed letters, directing that the two letters dated March 26, 2004 and the retainer letter dated April 20, 2004 be disclosed but that the 4/2/04 letter could be withheld. An order is to be issued. Telephone Pretrial Conference set for 9/24/2004 at 2:00 PM before Magistrate Judge David E. Peebles. (CD#: 2004-077) (jlm) (Entered: 06/30/2004)
98 Endorsement ORDER granting the 97 Letter Request, filed by Theresa Marangas, Esq for County of Montgomery, Michael Amato, Montogomery County Sheriff's Department, Jeffrey Smith, Kevin Snell, John Pecora, and Sue BuddlesSigned by Judge David N. Hurd on 6/25/2004. (see, ) Modified on 6/25/2004, sent non-participating CM/ECF counsel a copy of order. (see, ). (Entered: 06/25/2004)

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07/06/2004 07/07/2004 07/07/2004 07/07/2004 07/07/2004 07/07/2004 07/09/2004 07/09/2004 07/15/2004
07/16/2004

103 SEALED DOCUMENT - per 7/7/04 order of MJ Peebles, maintained in Clerk's Office and not available for electronic viewing (lmp) (Entered: 07/08/2004)
100 **VACATED pursuant to the 151 MDO of Judge Hurd** ORDER: it is ordered that defts. shall produce to pltfs. counsel the two disputed letters dated 3/26/04, 5/14/04 and 4/20/04; Defts. motion for a protective order with regard to the letter dated 4/21/04 is granted . Signed by Judge David E. Peebles on 7/7/04. (kcl, ) Modified on 3/25/2005 (see, ). (Entered: 07/08/2004)
101 ORDER APPROVING DEFENDANT'S WAIVER OF POTENTIAL CONFLICT. Signed by Judge David E. Peebles on 7/7/04. (kcl, ) (Entered: 07/08/2004)
102 ORDER directing Defts. to produce to Pltf's counsel within 10 days 2 disputed letters described herein; Defts' 4/21/04 letter motion for protective order is GRANTED; sealing 5/14/04 letter from Theresa B. Marangas, Esq. with attachments. Signed by Judge David E. Peebles on 7/7/04. (lmp) (Entered: 07/08/2004)
104 ORDER finding non-party witnesses have knowingly & voluntarily chosen to waive potential for conflict and proceed w/joint representation; sealing non-party witnesses' affidavits and attorney letters. Signed by Judge David E. Peebles on 7/7/04. (lmp) (Entered: 07/08/2004)
105 SEALED DOCUMENT - per 7/7/04 Order of MJ Peebles (#104) maintained in Clerk's Office and not available for electronic viewing (lmp) (Entered: 07/08/2004)
106 ORDER approving defendants' waiver of potential conflict . Signed by Judge David E. Peebles on 7/9/04. (kcl, ) (Entered: 07/12/2004)
107 SEALED DOCUMENT - maintained in Clerk's Office and not available for electronic viewing; Affidavit of Erik Schnackenberg and Michael Franko, as well as counsel's letters to them; sealed per: 106 Order (kcl, ) (Entered: 07/12/2004)
108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters Motion Hearing set for 8/27/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 8/10/2004 Reply to Response to Motion due by 8/16/2004. by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Order to Show Cause# 2 Memorandum of Law # 3 Affirmation in Support of Order to Show Cause# 4 Affirmation is Support of Objections# 5 Magistrate's Order (Ex. A)# 6 Conference Transcript (Ex. B)# 7 Plaintiff's Letter Brief (Ex. C)# 8 Dora Hurd's Deposition Transcript (Ex. D)# 9 Defendants' Letter Brief (Ex. E)# 10 Dora Hurd Privilege Log (Ex. F)# 11 Unreported Decision - NY City v. Coastal Oil (Ex. G)# 12 Unreported Decision - Coleman v. City of NY (Ex. H)# 13 December 29, 2003 Order (Ex. I))(Marangas, Theresa) (Entered: 07/15/2004)
ORDER The July 7, 2004, Magistrate Judge's Order compelling production of documents is STAYED pending resolution of the appeal (Docket No. 108). In all other respects the County of Montgomery's proposed Order to Show Cause is denied. The foregoing is pursuant to the oral order of Judge Hurd. (djc, ) Modified on 7/16/2004, served non-CM/ECF participant a copy of the Receipt of

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07/16/2004 08/06/2004
08/11/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/14/2004

Notice of Electronic Filing. (see, ). (Entered: 07/16/2004)
IN CAMERA exhibits J,K,L,M submitted in support of 108 motion, maintained in clerk's office in sealed folder. (cbm, ) (Entered: 04/15/2005)
109 Cross MOTION for Summary Judgment Motion Hearing set for 8/27/2004 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 8/10/2004 Reply to Response to Motion due by 8/16/2004. by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Statement of Material Facts # 2 Memorandum of Law # 3 Affidavit # 4 Franko Deposition Transcript (Exhibit A)# 5 Smith Deposition Transcript (Exhibit B)# 6 Schnackenberg Deposition Transcript (Exhibit C)# 7 April 23, 2004 Order (Exhibit D)# 8 October 24, 2003 Hearing Transcript (Exhibit E)# 9 August 19, 1999 Chairman's Memorandum (Exhibit F)# 10 MCCF Evaluations (Exhibit G)# 11 Unreported Dodge v. Co. of Orange Decision (Exhibit H)# 12 Davis Deposition Transcript (Exhibit I)# 13 Ashline Deposition Transcript (Exhibit J)# 14 Marriott Deposition - Part 1 (p. 1-81) (Exhibit K)# 15 Marriott Deposition Part 2 (p. 82-161) (Exhibit K)# 16 Marriott Deposition - Part 3 (p. 162-243) (Exhibit K)# 17 June 9, 2004 Order (Exhibit L)# 18 December 23, 2003 Order (Exhibit M)# 19 Plaintiff's Class Action Complaint (Exhibit N)# 20 Red-Line Version of Proposed Amended Complaint (Exhibit O)# 21 October 24, 2003 Order (Exhibit P))(Marangas, Theresa) (Entered: 08/06/2004)
110 Letter from Theresa Marangas for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting adjournment of the August 27, 2004 return date for oral argument of plaintiff's motion for class certification and renewed motion for preliminary injunction and defendants' cross motion for summary judgment.. (Marangas, Theresa) (Entered: 08/11/2004)
113 Endorsement ORDER granting the 110 Letter Request, filed by Theresa Marangas, Esq for the County of Montgomery, Michael Amato, Montogomery County Sheriff's Department, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles.Signed by Judge David N. Hurd on 8/13/2004. (see) Modified on 8/16/2004, served non-CM/ECF participants via U.S. Mail on 8/16/2004. (see, ). (Entered: 08/16/2004)
Set/Reset Deadlines as to 109 Cross MOTION for Summary Judgment, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88. Motion Hearing set for 9/24/2004 10:00 AM in Albany before Judge David N. Hurd. (see) (Entered: 08/16/2004)
Set/Reset Deadlines as to 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88. Reply to Response/Opposition papers to Motion due by 9/13/2004. (see) (Entered: 08/16/2004)
Set/Reset Deadlines as to 109 Cross MOTION for Summary Judgment. Reply to Response to Motion due by 9/20/2004. (see, ) (Entered: 08/16/2004)
111 MEMORANDUM OF LAW Opposing Defendants' Objections to Magistrate Peebles' July 7, 2004 Order filed by Paul Marriott. (Rozger, Jason) (Entered: 08/14/2004)

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08/14/2004 08/19/2004 08/19/2004 08/24/2004 08/26/2004 09/01/2004 09/02/2004 09/10/2004
09/13/2004 09/13/2004

112 AFFIDAVIT in Opposition re 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters filed by Paul Marriott. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Rozger, Jason) (Entered: 08/14/2004)
NOTICE of Hearing on Motion 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters, 109 Cross MOTION for Summary Judgment: Motion Hearing set for 9/24/2004 10:00 AM in Albany before Judge David N. Hurd. Please adjust your records to reflect this change.(cmr, ) (Entered: 08/19/2004)
Set/Reset Deadlines as to 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters, 109 Cross MOTION for Summary Judgment, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88. Motion Hearing set for 9/24/2004 10:00 AM in Albany before Judge David N. Hurd. (cmr, ) (Entered: 08/19/2004)
114 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting permission to submit a Reply Brief in support of Defendants' Motion to Set Aside the Magistrate's Order directing the production of letters. (Marangas, Theresa) (Entered: 08/24/2004)
115 Endorsement ORDER granting the 114 Letter Request, filed by County of Montgomery, Michael Amato, Montogomery County Sheriff's Department, Jeffrey Smith, Kevin Snell, John Pecora, and Sue Buddles.Signed by Judge David N. Hurd on 8/26/2004. (see) Modified on 8/26/2004, served non-CM/ECF participants by U.S. Mail on 8/26/2004. (see, ). (Entered: 08/26/2004)
116 Letter for Paul Marriott requesting On consent, extension of time to join parties and amend complaint to September 10, 2004. (Rozger, Jason) (Entered: 09/01/2004)
117 ORDER granting 116 Letter Request filed by Paul Marriott Joinder of Parties due by 9/10/2004. Signed by Judge David E. Peebles on 9/2/04. (lmp) (Entered: 09/03/2004)
118 MOTION to Amend/Correct Complaint Motion Hearing set for 10/13/2004 09:30 AM in Syracuse before Magistrate Judge David E. Peebles. Response to Motion due by 9/27/2004 Reply to Response to Motion due by 10/4/2004. by Paul Marriott. (Attachments: # 1 Affidavit Affirmation of Jason Rozger# 2 Proposed Amended Pleading Proposed amended complaint - Exhibit A to Rozger affirmation# 3 Exhibit Exhibit B to Rozger affirmation# 4 Memorandum of Law)(Rozger, Jason) (Entered: 09/10/2004)
119 REPLY to Response to Motion re 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters filed by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 09/13/2004)
120 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting confirmation of conversation regarding motion schedule. (Marangas, Theresa)

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09/14/2004
09/15/2004 09/17/2004 09/20/2004 09/22/2004 09/22/2004
09/27/2004 09/27/2004 09/27/2004
10/04/2004 10/04/2004

(Entered: 09/13/2004)
122 Letter request dd 8/13/2004 by Jason Rozger, Esq for the pltf requesting that the Court extend the time for the pltf to file their reply papers to 9/14/2004 and also extend defts' sur-reply to 9/21/2004; So ORDERED. Signed by Judge David N. Hurd on 9/13/2004. (see) Modified on 9/16/2004, served non-CM/ECF participants via US Mail on 9/16/2004. (see, ). (Entered: 09/16/2004)
121 REPLY to Response to Motion re 109 Cross MOTION for Summary Judgment filed by Paul Marriott. (Attachments: # 1 Affidavit # 2 Statement of Material Facts # 3 Exhibit Exhibit A to Rozger affidavit)(Rozger, Jason) (Entered: 09/15/2004)
NOTICE of Hearing: Settlement Conference set for 9/24/2004 11:45 AM in Albany before Judge David N. Hurd. (cmr, ) (Entered: 09/17/2004)
123 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting confirmation of briefing schedule for pending motions. (Marangas, Theresa) (Entered: 09/20/2004)
The telephone conference scheduled for 9/24/04 at 2:00 pm in this matter has been cancelled in lieu of a settlement conference before Judge Hurd on 9/24/04 at 11:45 am. (cam, ) (Entered: 09/22/2004)
124 REPLY to Response to Motion re 109 Cross MOTION for Summary Judgment filed by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Attachments: # 1 Amended Statement of Material Facts (Exhibit A))(Marangas, Theresa) (Entered: 09/22/2004)
125 LETTER BRIEF providing supplemental authority from USCA, 2d Cir. by Paul Marriott. (Attachments: # 1 N.G. v. State of Connecticut decision)(Keach, Elmer) (Entered: 09/27/2004)
126 Minute Entry for proceedings held before Judge David N. Hurd : Settlement Conference held on 9/24/2004 in Albany, NY. (Court Reporter None) (cmr, ) (Entered: 09/27/2004)
Set/Reset Deadlines as to 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters, 109 Cross MOTION for Summary Judgment, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88. Motion Hearing set for 10/22/2004 10:30 AM in Albany before Judge David N. Hurd. (cmr, ) (Entered: 09/27/2004)
127 RESPONSE to Motion re 118 MOTION to Amend/Correct Complaint filed by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 10/04/2004)
128 LETTER/REQUEST AND ORDER re 118 MOTION to Amend/Correct Complaint terminated . Signed by Judge David E. Peebles on 10/4/04. (kcl, ) (Entered: 10/04/2004)

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10/04/2004 10/05/2004 10/06/2004 10/06/2004 10/06/2004 10/13/2004
10/14/2004 10/25/2004
11/13/2004 11/30/2004

129 AMENDED COMPLAINT filed with consent of all parties against all defendants, filed by Paul Marriott.(Rozger, Jason) (Entered: 10/04/2004)
Test message: Updated counsel of record's primary email address--this entry is just a test to see if the change processed correctly. (wjg, ) (Entered: 10/05/2004)
130 RESPONSE in Support re 109 Cross MOTION for Summary Judgment filed by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 10/06/2004)
131 RESPONSE in Support re 109 Cross MOTION for Summary Judgment (signed ) filed by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell. (Marangas, Theresa) (Entered: 10/06/2004)
Clerk's note: Documents 130 and 131 are the same, the only difference is the inclusion of an "s/" on document 131, which was counsel's reason for re-filing the document (kcl, ) (Entered: 10/06/2004)
Set/Reset Deadlines as to 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters, 109 Cross MOTION for Summary Judgment, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88. Motion Hearing set for 10/22/2004 10:30 AM in Albany before Judge David N. Hurd. Appearance required. (cmr, ) (Entered: 10/13/2004)
132 ANSWER to Amended Complaint by Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell.(Marangas, Theresa) (Entered: 10/14/2004)
133 Minute Entry for proceedings held before Judge David N. Hurd : Motion Hearing held on 10/22/2004 in Albany, NY. re 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters filed by County of Montgomery, Michael Amato, Montogomery County Sheriff's Department, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88 filed by Paul Marriott, 109 Cross MOTION for Summary Judgment filed by County of Montgomery, Michael Amato, Montogomery County Sheriff's Department, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles, Motions Taken Under Advisement: 108 MOTION to Set Aside Magistrate's Order Directing the Production of the Dora Hurd Letters, 90 Amended MOTION to Certify Class Refiled to Substitute for Docket Entries 84 through 88, 109 Cross MOTION for Summary Judgment. (Court Reporter Bonnie Buckley) (cmr, ) (Entered: 10/25/2004)
134 Letter from Elmer Keach for Paul Marriott requesting Ninety Day Enlargment of Discovery Deadline, On Consent. (Keach, Elmer) (Entered: 11/13/2004)
135 Minute Entry for proceedings held before Judge David E. Peebles : Telephone Conference held on 11/30/2004. Parties request extension of Discovery deadline, order to be issued re: the same (kcl, ) (Entered: 11/30/2004)

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11/30/2004 12/06/2004
12/07/2004 12/07/2004 12/09/2004 12/10/2004 12/22/2004
12/23/2004

136 SCHEDULING ORDER: Discovery due by 5/31/2005. Motions to be filed by 7/29/2005.. Signed by Judge David E. Peebles on 11/30/04. (kcl, ) (Entered: 11/30/2004)
137 Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 12/6/2004. : Defendants' counsel requested this conference call and are asking the Court for a protective order re: the video taped deposition of Deft. Sheriff Amato, which is to take place tomorrow morning. Defendants' counsel requests that the video tape and/or transcript of the deposition not be released to the public and that it is to be used just for litigation purposes. Plaintiff's counsel will not consent to this request. Judge sets up a briefing schedule. Defendants' letter brief is due by 12/10/04 and plaintiff's letter brief is due by 12/16/04 (5 page limit). Judge will then give a ruling as to this issue during a digitally recorded telephone conf. to be held on 1/4/05 at 2:30 p.m.. Defendants' counsel is to place the call. Until this ruling is rendered, Judge Peebles stays public dissemination of the video and/or transcript of Deft. Sheriff Amato's deposition. (sal, ) (Entered: 12/07/2004)
TEXT NOTICE of Hearing: Status Telephone Conference set for 1/4/2005 at 2:30 PM before Magistrate Judge David E. Peebles. Counsel for the parties are instructed to confer with each other at least one (1) week prior to the date of the conference to confirm their availability, and defendants' attorney is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620.(sal, ) (Entered: 12/07/2004)
CLERK'S CORRECTION OF DOCKET ENTRY re 138 Document Rejection Order. This document was docketed in the wrong case and is being deleted from the docket. (sal, ) (Entered: 12/07/2004)
138 Letter for Michael Amato, Sue Buddles, County of Montgomery, Montogomery County Sheriff's Department, John Pecora, Jeffrey Smith, Kevin Snell requesting that Defendants' application for a protective order regarding the Sheriff's videotaped deposition be withdrawn. (Marangas, Theresa) (Entered: 12/09/2004)
139 LETTER/REQUEST AND ORDER re 138 Letter Request, filed by County of Montgomery, et al. Counsel for County advises that they withdraw the request for a protective order within document 138. Signed by Judge David E. Peebles on 12/10/04. (kcl, ) (Entered: 12/13/2004)
140 MOTION to Intervene on Behalf of Clarendon Insurance Company Motion Hearing set for 1/28/2005 09:30 AM in Albany before Judge David N. Hurd. Response to Motion due by 1/11/2005 Reply to Response to Motion due by 1/18/2005. by Clarendon Insurance Company. (Attachments: # 1 Affidavit Affidavit of Latha Raghavan in Support of Motion to Intervene# 2 Memorandum of Law in Support of Motion to Intervene# 3 Exhibit Exhibit A# 4 Exhibit Exhibit B# 5 Exhibit Exhibit C# 6 Exhibit Exhibit D# 7 Westlaw Cites# 8 Certificate of Service)(Raghavan, Latha) (Entered: 12/22/2004)
CLERK'S CORRECTION OF DOCKET ENTRY Clerk changes party designation of Clarendon Insurance Company; Filer of document 140 added Clarendon Insurance Co. as an Intervenor Defendant, however party would not become such until the point that the 140 motion to intervene was granted; Clerk changed party designateion of Clarendon Insurance Company to Movant. Upon

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12/23/2004 01/12/2005
01/12/2005 01/13/2005 01/13/2005
01/14/2005 01/20/2005 01/20/2005
01/27/2005 01/28/2005 01/28/2005

granting of motion, party designation to be changed to Intervenor Defendant (kcl, ) (Entered: 12/23/2004)
141 CERTIFICATE OF SERVICE by Clarendon Insurance Company re 140 MOTION to Intervene on Behalf of Clarendon Insurance Company (Raghavan, Latha) (Entered: 12/23/2004)
142 Letter from Elmer Keach for Paul Marriott requesting That Motion Papers of Clarendon Insurance Company be Stricken from the Docket for Failure to Comply with Local Rule 7.1(b)(2) or, in the Alternative, For Adjournment of Return Date and Enlargement of Time to Respond. (Keach, Elmer) (Entered: 01/12/2005)
143 RESPONSE TO LETTER BRIEF filed by Clarendon Insurance Company as to 142 Letter Request, filed by Paul Marriott,. (Raghavan, Latha) (Entered: 01/12/2005)
144 Letter from Elmer Keach for Paul Marriott requesting Responding to Proposed Intervenor Clarendon Insurance Company's Letter from Yesterday and Requesting Adjournment of Return Date, as Previously Agreed to by all Parties. (Keach, Elmer) (Entered: 01/13/2005)
ORDER re 142 Letter Request, filed by Paul Marriott, Granted in part and denied in part. Plaintiffs' reponse due by January 20, 2005, at 5:00 p.m. Movant's reply due by January 27, 2005, at 5:00 p.m. Motion to intervene is returnable on January 28, 2005, on submission of the papers. Pursuant to the oral order of Hon. David N. Hurd. (djc, ) (Entered: 01/13/2005)
Copy of 1/13/05 text order was mailed to non-ECF filers. (cbm, ) (Entered: 01/14/2005)
145 RESPONSE to Motion re 140 MOTION to Intervene on Behalf of Clarendon Insurance Company filed by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 01/20/2005)
146 RESPONSE in Opposition re 140 MOTION to Intervene on Behalf of Clarendon Insurance Company filed by Paul Marriott. (Attachments: # 1 Affirmation of Elmer Keach in Opposition to Motion for Leave to Intervene# 2 Exhibit A to Keach Aff. -- Docket Entries, Marriott v. County of Montgomery# 3 Exhibit B to Keach Aff. -- Deposition of Jeffrey Smith)(Keach, Elmer) (Entered: 01/20/2005)
147 REPLY to Response to Motion re 140 MOTION to Intervene on Behalf of Clarendon Insurance Company filed by Clarendon Insurance Company. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Memorandum of Law # 3 Certificate of Service)(Raghavan, Latha) (Entered: 01/27/2005)
148 REPLY to Response to Motion re 140 MOTION to Intervene on Behalf of Clarendon Insurance Company filed by Clarendon Insurance Company. (Attachments: # 1 Cover Letter to Judge# 2 Certificate of Service)(Raghavan, Latha) (Entered: 01/28/2005)
149 LETTER BRIEF Providing Supplemental Authority to Court by Paul Marriott. (Attachments: # 1 unreported Gary v. Sheahan decision)(Keach, Elmer) (Entered: 01/28/2005)

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03/09/2005 03/25/2005
03/25/2005
03/25/2005 03/28/2005 03/29/2005 03/29/2005 03/29/2005

150 NOTICE of Change of Address by Elmer R. Keach, III Effective Date March 9, 2005 Old Address: Albany, New York New Address: Amsterdam, New York (Keach, Elmer) (Entered: 03/09/2005)
151 MEMORANDUM-DECISION & ORDER, that Clarendon's motion to intervene is DENIED; that defts' cross motion for summary judgment is DENIED; that the Magistrate Judge's oral order of 6/24/2004, exemplified by a written order on 7/7/2004 is VACATED; that pltfs' motion for class certification is GRANTED; definition of pltfs' certified class defined w/in order; that pltfs' motion for a preliminary injunction is GRANTED; that defts are PRELIMINARY ENJOINED from conducting a strip search, as set forth in the Jail's change-out procedure, w/regard to all persons being placed into the custody of the Montgomery County Jail after being charge w/misdemeanors, violations, violations of probation or parole, traffic infractions, or other minor crimes, or held on civil matters, w/o reasonable suspicion that such persons are secreting contraband and/or weapons. Signed by Judge David N. Hurd on 3/25/2005. (see) (Entered: 03/25/2005)
152 ORDER, that defts elect, on or before 4/8/2005, whether to provide notice to the prospective class or provide the information necessary to pltfs so they can provide such notice; that the parties confer on or before 4/18/2005. At such conference, the party providing the notice to the prospective class inform the other party of whether the notice to the prospective class will be individual or general. The parties attempt to agree upon the contents of a proposed notice; that on or before 4/28/2005, the parties submit for approval a proposed joint order setting forth the contents of the proposed notice, or, if an agreement as to content cannot be reached, the parties submit separate proposed notices. Signed by Judge David N. Hurd on 3/25/2005. (see) (Entered: 03/25/2005)
Served Atty Mason w/file stamped copies of the 151 MDO & 152 Order by regular mail on 3/25/2005. (see) (Entered: 03/25/2005)
153 NOTICE OF APPEAL as to 151 Order on Motion to Certify Class,,,, Order on Motion to Set Aside,,,, Order on Motion for Summary Judgment,,,, Order on Motion to Intervene,,, by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 03/28/2005)
154 ELECTRONIC NOTICE sent to US Court of Appeals re 153 Notice of Appeal, (kcl, ) (Entered: 03/29/2005)
CLERK'S CORRECTION OF DOCKET ENTRY re 154 Motion for Preliminary Injunction: Deleted Exhibit A and Exhibit D after speaking with the attorney because they were filed incorrectly. The Attorney (Theresa Marangas) will electronically file Exhibits A and D, as well as additional exhibits later today. (ban) (Entered: 03/29/2005)
CLERK'S CORRECTION OF DOCKET ENTRY. Clerk deleted originally-filed document #154 (Order to Show Cause) and renumbered 154 Electronic Notice to USCA of Appeal from #153. Corrected Order to Show Cause with complete supporting documentation to be re-filed by counsel. Counsel to notify chambers of re-filing of Order to Show Cause. (wjg, ) (Entered: 03/29/2005)

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03/29/2005
03/29/2005
03/30/2005 03/31/2005 04/01/2005 04/07/2005
04/07/2005 04/07/2005 04/07/2005 04/12/2005

155 MOTION for Preliminary Injunction to be Stayed Pending Appeal by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Exhibit A - March 25, 2005 Decision and Order# 2 Exhibit B - New MCCF Protocols# 3 Exhibit C - Pecora Affidavit# 4 Exhibit D - Transcript of October 24, 2003 Proceedings# 5 Exhibit E - Notice of Appeal)(Marangas, Theresa) (Entered: 03/29/2005)
156 ORDER TO SHOW CAUSE why an order should not be entered staying the 3/25/05 order to the extent that it granted a preliminary injunction, pending decision on appeal and / or court ordering security to be posted. Show Cause Hearing set for 4/12/2005 at 2:00 PM in Utica before Judge David N. Hurd. Service deadline is 3/31/05, responsive papers due 4/6/05, reply papers due 4/8/05. Signed by Judge David N. Hurd on 3/29/05. (cbm, ) (Entered: 03/29/2005)
Appeal Filing fee Received: $ 255.00, receipt number ALB000645 (ban) (Entered: 03/30/2005)
157 CERTIFICATE OF SERVICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles re 155 MOTION for Preliminary Injunction to be Stayed Pending Appeal, 156 Order,, Set Deadlines/Hearings, (Marangas, Theresa) (Entered: 03/31/2005)
158 AMENDED ELECTRONIC NOTICE sent to US Court of Appeals re 153 Notice of Appeal. Appeal Filing fee of $255.00 paid 3/30/05. (ban) (Entered: 04/01/2005)
159 RESPONSE TO ORDER TO SHOW CAUSE filed by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Exhibit(s) Exhibit A to Keach Affirmation -- Schnackenberg Memorandum# 2 Exhibit(s) Exhibit B to Keach Affirmation -- Erik Schnackenberg Deposition# 3 Exhibit(s) Exhibit C to Keach Affirmation -- Sheriff Michael Amato Deposition# 4 Exhibit(s) Exhibit D to Keach Affirmation -- Memoranda regarding change out policy# 5 Exhibit(s) Exhibit E to Keach Affirmation -- herpes diagnosis information# 6 Exhibit(s) Exhibit F to Keach Affirmation -- National Herpes Resource Center fact sheet# 7 Exhibit(s) Exhibit G to Keach Affirmation -- Undersheriff Jeffrey Smith Deposition# 8 Memorandum of Law)(Keach, Elmer) (Entered: 04/07/2005)
160 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Enlargement of Time to File Response Papers. (Keach, Elmer) (Entered: 04/07/2005)
161 Endorsement ORDER granting the 160 Letter Request filed by Elmer Keach, Esq for Barbara Davis, Paul Marriott, & Andy Rivera. Signed by Judge David N. Hurd on 4/7/2005. (see) (Entered: 04/07/2005)
Faxed & mailed a copy of the 161 Endorsement Order to Atty Mason on 4/7/2005. (see) (Entered: 04/07/2005)
162 ORDER : pltfs shall not be required to post supersedeas bond; defts' 155 Motion for supersedeas bond and / or to stay Preliminary Injunction ending appeal is DENIED in all respects. Signed by Judge David N. Hurd on 4/12/05. (cbm, )

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04/14/2005
04/18/2005 04/19/2005
04/29/2005
04/29/2005 04/30/2005 05/02/2005 05/03/2005 05/11/2005 05/11/2005

(Entered: 04/12/2005)
163 Minute Entry for proceedings held before Judge David N. Hurd : Motion Hearing held on 4/12/2005 in Utica, NY. re 155 MOTION for Preliminary Injunction to be Stayed Pending Appeal filed by County of Montgomery,, Michael Amato,, Montogomery County Sheriff's Department,, Jeffrey Smith,, Kevin Snell,, John Pecora,, Sue Buddles,--DENIED. Ct. to issue summary order. (Court Reporter Nancy Freddoso) (cmr, ) (Entered: 04/14/2005)
164 Letter for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting a telephone conference with Magistrate Peebles. (Marangas, Theresa) (Entered: 04/18/2005)
TEXT NOTICE of Hearing: Status Telephone Conference set for 4/29/2005 at 3:00 PM before Magistrate Judge David E. Peebles. Counsel for the parties are instructed to confer with each other at least one (1) week prior to the date of the conference to confirm their availability, and Attorney Theresa Marangas is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620.(sal, ) (Entered: 04/19/2005)
TEXT NOTICE of Hearing: Due to a conflict w/ Judge Peebles' schedule that has arisen today, and a trial starting the week of 5/2/05, the Status Telephone Conference set for today at 3:00 PM has been adjourned until 5/13/2005 at 3:30 PM before Magistrate Judge David E. Peebles. PLEASE MARK YOUR CALENDARS ACCORDINGLY RE: THIS DATE AND TIME CHANGE. CRD for Judge Peebles has also notified the parties of this change by phone. (sal, ) (Entered: 04/29/2005)
166 TRANSCRIPT of a Return on Order to Show Cause held on 4/12/2005 before Judge Hurd. Court Reporter: Nancy Freddoso. (see) (Entered: 05/02/2005)
165 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Joint Enlargement of Time to Submit Proposed Class Notices to Court until May 6, 2005. (Keach, Elmer) (Entered: 04/30/2005)
167 Endorsement ORDER granting the 165 Letter Request filed by Barbara Davis, Paul Marriott, & Andy Rivera. Signed by Judge David N. Hurd on 5/2/2005. (see) (Entered: 05/03/2005)
Served a copy of the 167 Order upon Atty Mason by regular mail on 5/3/2005. (see) (Entered: 05/03/2005)
168 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles to Class members as proposed by Defendants (Attachments: # 1 Proposed Notice of Class Action# 2 Proposed Short Notice)(Marangas, Theresa) (Entered: 05/11/2005)
169 LETTER BRIEF providing Plaintiffs' Proposed Class Notices to the Court by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Supplement Plaintiffs' Proposed Long Form Notice# 2 Supplement Plaintiffs' Proposed Short Form Notice# 3 Supplement Defendants' Proposed Short Form Notice, May 6,

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05/12/2005 05/12/2005 05/13/2005 05/13/2005
05/16/2005 05/16/2005 05/17/2005

2005# 4 Supplement Defendants' Proposed Short Form Notice--05.09.05# 5 Supplement Defendants' Proposed Long Form Notice -- 05.06.09# 6 Supplement Defendants' Proposed Long Form Notice -- 05.09.05)(Keach, Elmer) (Entered: 05/11/2005)
170 CERTIFICATE OF SERVICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles of letter to Hon. David N. Hurd with Proposed Class Notices (Marangas, Theresa) (Entered: 05/12/2005)
171 TRANSCRIPT of Proceedings (Motion - Oral Argument) held on October 22, 2004 before Judge David N. Hurd. Court Reporter: Bonnie J. Buckley, RPR. (ban) (Entered: 05/12/2005)
172 MOTION for Preliminary Injunction by Order to Show Cause Seeking certification for immediate appellate review pursuant to 28 U.S.C. 1292(b) by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Declaration # 2 Exhibit A# 3 Memorandum of Law)(Marangas, Theresa) (Entered: 05/13/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 5/13/2005. Defendant's counsel states that they are appealing Judge Hurd's order re: class certification and a preliminary injunction. Parties have been advised by the Second Circuit that oral argument regarding the pending appeal will be heard no sooner than 8/22/05. Plaintiff's counsel states that the County Defts. haven't timely filed the appeal re: the class certification, but have done so w/ respect to the preliminary injunction. Plaintiff's oppose any effort to stay case pending decision on the appeal or any request to extend the discovery deadline. Judge stays all discovery on the question of damages. Defendant's time to disclose expert reports re: liability is extended until 6/17/05. Plaintiff's time to disclose expert reports re: liability is extended until 7/15/05. Expert depositions must be completed by 8/19/05. Motion filing deadline is extended until 9/30/05. Case will be tracked for ninety days to see if there is a decision from the Second Circuit. Judge may schedule another telephone conference in early fall. APP: Charlie Schneider, Esq, Bob Keach, Esq. for Pltf. and Joseph Francour, Esq., Theresa Marangas, Esq. for Defts.. (sal, ) (Entered: 05/16/2005)
TEXT SCHEDULING ORDER: Defendant's expert reports re: liability are to be disclosed by 6/17/05. Plaintiff's expert reports re: liability are to be disclosed by 7/15/05. Expert depositions must be completed by 8/19/05. Motions to be filed deadline is extended until 9/30/2005. Endorsed by Judge David E. Peebles on 5/16/05. (sal, ). (Entered: 05/16/2005)
173 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting That Request for Order to Show Cause Be Denied, or, in the Alternative, that Order Provide Dates for Plaintiffs to Serve Rule 11 Letter and to Cross-Move for Sanctions. (Keach, Elmer) (Entered: 05/16/2005)
174 ORDER denying the 172 Application for an Order to Show Cause. Signed by Judge David N. Hurd on 5/17/2005. (see) (Entered: 05/17/2005)

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05/17/2005 05/18/2005 05/20/2005 05/20/2005 06/01/2005
06/02/2005 06/03/2005
06/03/2005 06/21/2005 06/24/2005 06/29/2005

Served a copy of the 174 Order on Motion for Preliminary Injunction upon Gary Mason by regular mail on 5/17/2005. (see) (Entered: 05/17/2005)
175 LETTER BRIEF in response to plaintiffs' letter of May 11, 2005 by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 05/18/2005)
176 USCA Scheduling Order as to 153 Notice of AppealUSCA Case No. 05-1590. Appealed to: 2nd circuit. Appeal Record due by 6/7/2005. (kcl, ) (Entered: 05/20/2005)
177 ELECTRONIC CERTIFICATION to US Court of Appeals of Record on Appeal re 153 Notice of Appeal, (kcl, ) (Entered: 05/20/2005)
178 MOTION for Certificate of Appealability Pursuant to 28 U.S.C 1292(b) Motion Hearing set for 7/22/2005 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/5/2005 Reply to Response to Motion due by 7/11/2005. Motion Hearing set for 7/22/2005 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 7/5/2005 Reply to Response to Motion due by 7/11/2005. by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Memorandum of Law # 2 Affidavit # 3 Exhibit A)(Marangas, Theresa) (Entered: 06/01/2005)
179 CERTIFICATE OF SERVICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles of Notice of Motion for 28 U.S.C. 1292(b) Certification to Allow an Application for Immediate Appeal (Marangas, Theresa) (Entered: 06/02/2005)
180 ORDER, that Class counsel send the Notice of Class Action in the form issued by the Clerk of the Court by First Class Mail to all class members at the address provided in Montgomery County's booking records on or before 8/31/2005; that Class counsel publish the short form Notice of Class Action as issued by the Clerk of the Court on at least three occasions in the Amsterdam Recorder on or before 9/30/2005; No website will be permitted. Signed by Judge David N. Hurd on 6/3/2005. (Attachments: # 1 Class Notice# 2 Short Class Notice)(see) (Entered: 06/03/2005)
Served a file stamped copy of the 180 Order upon Atty Mason (non-ECF filer) by regular mail on 6/3/2005. (see) (Entered: 06/03/2005)
181 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Discovery Conference submitted to Judge David E. Peebles. (Keach, Elmer) (Entered: 06/21/2005)
At the consent of all parties, a telephone conference has been scheduled in this matter for 6/29/05 at 3:00 pm (Atty. Keach is to initiate the call. (cam, ) (Entered: 06/24/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 6/29/2005. APP: Bob Keach, Esq., Theresa Marangas, Esq. & Joseph Francour, Esq.. Defendant's counsel consents to have the deposition of Mr. Savoy taken. Judge directs that this deposition is to be completed w/in 30

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06/30/2005
07/01/2005 07/12/2005 07/12/2005 07/13/2005 07/19/2005 07/20/2005

days from today's date. Defendant's counsel requests an extension of the amended expert report filing deadline. Judge DENIES this request and states that defendant's counsel has not established good cause as to why this deadline should be extended. Judge schedules a settlement conference for 7/20/05 at 1:00 PM in Albany. Ex parte settlement statements are due 10 days prior to this conference date. (sal, ) (Entered: 06/30/2005)
TEXT NOTICE of Hearing: In-Person Settlement Conference set for 7/20/2005 at 1:00 PM in Albany before Magistrate Judge David E. Peebles. At that conference the parties are directed to appear in person, through counsel and, unless specifically excused by the court prior to the time of the conference, by a representative of the party with full authority to enter into binding agreements on behalf of that party in connection with this litigation. In preparation for the scheduled settlement conference, not later than July 11, 2005, the parties shall submit directly to my chambers a short, concise statement setting forth the material facts of the case, together with an indication of which if any are disputed; providing a synopsis of the parties' respective legal positions concerning any issues presented in the case; and outlining any settlement discussions which have occurred. That confidential statement, which shall not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position.(sal, ) (Entered: 06/30/2005)
182 RESPONSE to Motion re 178 MOTION for Certificate of Appealability Pursuant to 28 U.S.C 1292(b) withdrawing the motion filed by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 07/01/2005)
183 Letter from Theresa Marangas for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting an extension of the deadline for the non-party deposition of the Commission of Correction submitted to Judge Peebles on behalf of all parties. (Marangas, Theresa) (Entered: 07/12/2005)
184 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Responding to Defendants' Withdrawal of Request for Certificate of Appealability submitted to Judge David N. Hurd. (Attachments: # 1 Exhibit(s) Rule 11 Demand Letter to Defendants)(Keach, Elmer) (Entered: 07/12/2005)
185 LETTER REQUEST AND ORDER; Letter addressed to MJ Peebles requesting that Mr. Savoy's deposition be postponed to 8/1/05; So Ordered. Signed by Judge David E. Peebles on 7/13/05. (kcl, ) (Entered: 07/13/2005)
186 Letter from Theresa B. Marangas for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge David N. Hurd. (Marangas, Theresa) (Entered: 07/19/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Settlement Conference held on 7/20/2005 in Albany. After lengthy settlement discussions, case does not settle. However, parties are going to continue their

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08/03/2005 08/15/2005 08/17/2005
08/31/2005 09/02/2005 09/02/2005 09/08/2005

settlement discussions and will report back to the court in a couple of weeks as to the status. Judge will schedule a telephone conference in a couple of weeks to discuss status of settlement discussions. APP: Bruce Menken, Esq., Elmer Keach, III, Esq., Joseph Francour, Esq., Theresa Marangas, Esq., Dave Barrocas, Scott Bertschi, Rona Platt, Terry Gilroy, & Jonathan Bernstein. (sal, ) (Entered: 07/22/2005)
TEXT NOTICE of Hearing: A Telephone Conference has been set for 8/16/2005 at 2:00 PM before Magistrate Judge David E. Peebles. Atty. Marangas will initiate the call to Chambers. She has confirmed w/ all of the parties re: this time and date for the conference. (sal, ) (Entered: 08/03/2005)
187 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Providing Additional Authority to the Court In Preparation for Telephone Conference submitted to Judge David E. Peebles. (Attachments: # 1 Exhibit(s) Decision of the Court in Kelsey v. County of Schoharie)(Keach, Elmer) (Entered: 08/15/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 8/17/2005. Judge discusses settlement w/ the parties. Plaintiff's counsel will be moving for summary judgment by the end of the month. If both parties believe that another settlement conference would be beneficial, then they are to contact Chambers and one will be scheduled for Albany. No further telephone conference is scheduled w/ Judge Peebles. (sal, ) (Entered: 08/17/2005)
188 Letter from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Enlargement of Time to Mail Long Form Class Notice Until September 9, 2005 submitted to Judge David N. Hurd On Consent. (Keach, Elmer) (Entered: 08/31/2005)
189 Endorsement ORDER granting the 188 Letter Request filed by Barbara Davis, Paul Marriott, & Andy Rivera. Signed by Judge David N. Hurd on 9/2/2005. (see) (Entered: 09/02/2005)
Served a copy of the 189 Order upon Attorney Gary Mason by regular mail on 9/2/2005. (see) (Entered: 09/02/2005)
190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County Motion Hearing set for 10/14/2005 10:00 AM in Utica before Judge David N. Hurd. Response to Motion due by 9/27/2005 Reply to Response to Motion due by 10/3/2005. by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Memorandum of Law # 2 Attorney Affidavit in Support# 3 Exhibit A - Class Action Complaint# 4 Exhibit B - Amended Complaint# 5 Exhibit C - Kelsey Decision# 6 Exhibit D Steinberg v. County of Rockland# 7 Exhibit E - Schnackenberg Deposition# 8 Exhibit F - Denton Deposition# 9 Exhibit G - Gardner Deposition# 10 Exhibit H - Snall v. City of New York# 11 Exhibit I - Corona v. Lunn# 12 Exhibit J Azzam v. Travelers Ins. Co.# 13 Exhibit K - LaCorte v. Hudacs# 14 Exhibit L Petty v. Goord# 15 Exhibit M - Porter v. Coombe# 16 Exhibit N - Thompkins v. Wayne# 17 Exhibit O - Lawrence Deposition# 18 Exhibit P - Affidavit of George

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09/27/2005
09/29/2005 09/30/2005
09/30/2005 09/30/2005 10/03/2005 10/04/2005 10/04/2005 10/04/2005

M. Camp)(Marangas, Theresa) (Entered: 09/08/2005)
191 RESPONSE in Opposition re 190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County filed by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Exhibit(s) Canady decision# 2 Exhibit(s) Chairman's Memorandum# 3 Exhibit(s) Gary Decision# 4 Exhibit(s) Gibson Decision# 5 Exhibit(s) Rivera Decision# 6 Exhibit(s) Thomas Decision)(Keach, Elmer) (Entered: 09/27/2005)
192 Letter Motion for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting permission to submit a late Statement of Material Facts submitted to Judge Hurd. (Marangas, Theresa) (Entered: 09/29/2005)
193 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles re 192 Letter Motion for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting permission to submit a late Statement of Material Facts submitted to Judge Hurd has been consented to by plaintiffs (Marangas, Theresa) (Entered: 09/30/2005)
194 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Enlargement of Motion Deadline to October 14, 2005, on consent submitted to Judge David N. Hurd. (Keach, Elmer) (Entered: 09/30/2005)
195 STATUS REPORT Regarding Provision of Class Notice by Barbara Davis, Andy Rivera, Paul Marriott. (Keach, Elmer) (Entered: 09/30/2005)
196 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles that plaintiffs have granted defendants a one-day extension to submit Reply Brief and Material Statement of Facts (Marangas, Theresa) (Entered: 10/03/2005)
197 Endorsement ORDER granting the 194 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, & Paul Marriott requesting Enlargement of Motion Deadline to October 14, 2005, on consent submitted to Judge David N. Hurd. Motions to be filed by 10/14/2005.Signed by Judge David N. Hurd on 10/3/2005. (see) (Entered: 10/04/2005)
Served a copy of the 197 Order upon Atty Mason by regular mail on 10/4/2005. (see) (Entered: 10/04/2005)
198 REPLY to Response to Motion re 190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County filed by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Statement of Material Facts)(Marangas, Theresa) (Entered: 10/04/2005)

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10/04/2005 10/05/2005 10/05/2005 10/05/2005 10/14/2005 10/14/2005
10/14/2005 10/14/2005
10/14/2005

199 Endorsement ORDER granting the 192 Letter Motion from Theresa Marangas, Esq for defts. Signed by Judge David N. Hurd on 10/3/2005. (see) (Entered: 10/05/2005)
Served a copy of the 199 Order upon Atty Mason by regular mail on 10/5/2005. (see) (Entered: 10/05/2005)
NOTICE of Hearing on Motion 190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County: Motion Hearing set for 10/14/2005 10:30 AM in Utica before Judge David N. Hurd. Appearance required. Please adjust your records to reflect this change.(cmr, ) (Entered: 10/05/2005)
Set/Reset Deadlines as to 190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County. Motion Hearing set for 10/14/2005 10:30 AM in Utica before Judge David N. Hurd. (cmr, ) (Entered: 10/05/2005)
200 LETTER BRIEF providing supplemental authority to Court on PLRA issue by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Supplement Transcript of Proceedings in McDaniel v. County of Schenectady, 9.29.05)(Keach, Elmer) (Entered: 10/14/2005)
201 ORDER, that defts' motion to limit the type of compensation under the Prison Litigation Reform Act, 42 U.S.C. 1997e(e) is DENIED; that defts' motion to dismiss the claim for punitive damages is DENIED without prejudice; & that defts' motion to dismiss the complaint against the deft Montgomery County Sheriff's Department & defts Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora & Sue Buddles in their official capacities is GRANTED as the deft County of Montgomery is liable for the acts of the Montgomery County Sheriff's Dept, which is not a legal entity, & for the acts of the remaining defts in their official capacities as employees of the County of Montgomery. Signed by Judge David N. Hurd on 10/14/2005. (see) (Entered: 10/14/2005)
Served a copy of the 201 Order upon Atty Mason by regular mail on 10/14/2005. (see) (Entered: 10/14/2005)
202 (terminated) MOTION for Partial Summary Judgment , Provision of Permanent Injunction, Preclusion of Expert Testimony, and for Interim Award of Attorneys' Fees Motion Hearing set for 11/25/2005 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 11/8/2005 Reply to Response to Motion due by 11/14/2005. by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Memorandum of Law # 2 Statement of Material Facts # 3 Affirmation Affirmation of Elmer Keach# 4 Exhibit(s) Exhibit A to Keach Affirmation -- Affidavit of John Pecora# 5 Exhibit(s) Exhibit B -- 30b6 deposition, day one# 6 Exhibit(s) Exhibit C -- 30b6 deposition, day 2)(Keach, Elmer) Modified on 10/17/2005 (kcl, ). (Entered: 10/14/2005)
203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits) Motion Hearing set for 11/25/2005 10:00 AM in Albany

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10/17/2005 10/17/2005
10/31/2005 11/08/2005 11/08/2005

before Judge David N. Hurd. Response to Motion due by 11/8/2005 Reply to Response to Motion due by 11/14/2005. by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Memorandum of Law # 2 Statement of Material Facts # 3 Affirmation Affirmation of Elmer Keach in Support of Motion# 4 Exhibit(s) Exhibit A -- Affirmation of John Pecora# 5 Exhibit(s) Exhibit B to Keach Affirmation -- Rule 30(b)(6) deposition of Montgomery County, Day One# 6 Exhibit(s) Exhibit C to Keach Affirmation -- Rule 30(b)(6) deposition of Montgomery County, Day Two# 7 Exhibit(s) Exhibit D to Keach Affirmation -Deposition of Sheriff Michael Amato# 8 Exhibit(s) Exhibit E to Keach Affirmation -- Letter from Francoeur to Judge David Peebles, dated December 27, 2003# 9 Exhibit(s) Exhibit E & F to Keach Affirmation -- Montgomery County Search Policies, 1996, 2003# 10 Exhibit(s) Exhibit H & I to Keach Affirmation -- Montgomery County Admission Policies, 1996, 2003# 11 Exhibit(s) Exhibit J to Keach Affirmation -- Memoranda on possible change in strip search policies# 12 Exhibit(s) Exhibit K -- Memorandum by Michael Franko, March 25, 2005# 13 Exhibit(s) Exhibit L to Keach Affirmation -Transcript of Oral Argument, October 22, 2004# 14 Exhibit(s) Exhibit M to Keach Affirmation -- Decision and Order of Court, March 25, 2003# 15 Exhibit(s) Exhibit N to Keach Affirmation -- Defendants' Supplemental Expert Disclosure for George Camp# 16 Exhibit(s) Exhibit O to Keach Affirmation -Defendants' Second Supplemental Expert Disclosure for George Camp)(Keach, Elmer) (Entered: 10/14/2005)
CLERK'S CORRECTION OF DOCKET ENTRY; Clerk terminated pending status of 202 motion as it was amended by the filing of the 203 motion (kcl, ) (Entered: 10/17/2005)
204 Minute Entry for proceedings held before Judge David N. Hurd : Motion Hearing held on 10/14/2005 in Utica, NY. re 190 MOTION Limit Damages pursuant to the PLRA and to Dismiss the Official Capacity Claims and the Claim against the Sheriff's Department as Redundant to the Claim against Montgomery County filed by County of Montgomery,, Michael Amato,, Montogomery County Sheriff's Department,, Jeffrey Smith,, Kevin Snell,, John Pecora,, Sue Buddles,--GRANTED IN PART/DENIED IN PART. Summary order to be filed. (Court Reporter Nancy Freddoso) (cmr, ) (Entered: 10/17/2005)
205 TRANSCRIPT of a Motion held on 10/14/2005 before Judge Hurd, Court Reporter: Nancy Freddoso - maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 11/01/2005)
NOTICE of Hearing on Motion 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits): Video Motion Hearing set for 11/29/2005 11:15 AM, 1st Floor Video Conference Room in Albany before Judge David N. Hurd. Appearance required. Please adjust your calendars to reflect this change.(cmr, ) (Entered: 11/08/2005)
Set/Reset Deadlines as to 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits). Video Motion Hearing set for 11/29/2005 11:15 AM, 1st Floor Video Conference Room in Albany before Judge David N. Hurd. (cmr, ) (Entered: 11/08/2005)

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11/08/2005 11/08/2005
11/10/2005 11/10/2005 11/21/2005 11/22/2005

206 Letter Motion from Theresa B. Marangas for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting Adjournment of plaintiffs' Motion for Summary Judgment submitted to Judge David N. Hurd. (Marangas, Theresa) (Entered: 11/08/2005)
207 MOTION for Certificate of Appealability of Order denying Defendants' Motion for Partial Summary Judgment Motion Hearing set for 12/9/2005 10:00 AM in Utica before Judge David N. Hurd. Response to Motion due by 11/22/2005 Reply to Response to Motion due by 11/28/2005. Motion Hearing set for 12/9/2005 10:00 AM in Utica before Judge David N. Hurd. Response to Motion due by 11/22/2005 Reply to Response to Motion due by 11/28/2005. by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Memorandum of Law # 2 Affidavit # 3 Exhibit(s) A# 4 Exhibit(s) B# 5 Exhibit(s) C# 6 Exhibit(s) D# 7 Exhibit(s) E)(Marangas, Theresa) (Entered: 11/08/2005)
Set/Reset Deadlines as to 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits), 207 MOTION for Certificate of Appealability of Order denying Defendants' Motion for Partial Summary Judgment. Response to Motion due by 11/22/2005 Reply to Response to Motion due by 11/28/2005. Motion Hearing set for 12/15/2005 10:00 AM in Utica before Judge David N. Hurd. Appearance required. Please adjust your records to reflect this change. (cmr, ) (Entered: 11/10/2005)
208 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles re 206 Letter Motion from Theresa B. Marangas for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting Adjournment of plaintiffs' Motion for Summary Judgment su is being withdrawn in light of Court's resetting of briefing deadlines and hearing dates (Marangas, Theresa) (Entered: 11/10/2005)
209 RESPONSE in Opposition re 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits) filed by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Attachments: # 1 Statement of Material Facts # 2 Affidavit # 3 Exhibit(s) A# 4 Exhibit(s) B# 5 Exhibit(s) C# 6 Exhibit(s) D# 7 Exhibit(s) E# 8 Affidavit of George Camp)(Marangas, Theresa) (Entered: 11/21/2005)
210 AFFIDAVIT in Opposition re 207 MOTION for Certificate of Appealability of Order denying Defendants' Motion for Partial Summary Judgment filed by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Exhibit(s) A, District Judge decision in Kelsey v. County of Schoharie# 2 Exhibit(s) B, transcript in McDaniel v. County of Schenectady# 3 Memorandum of Law)(Rozger, Jason) (Entered: 11/22/2005)

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11/28/2005 11/28/2005 11/29/2005
11/29/2005 11/29/2005 11/30/2005 11/30/2005 11/30/2005

Set/Reset Deadlines as to 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits), 207 MOTION for Certificate of Appealability of Order denying Defendants' Motion for Partial Summary Judgment. Motion Hearing reset for 12/15/2005 02:00 PM in Utica before Judge David N. Hurd. Appearance required. Please adjust your calendars to reflect this change. (cmr, ) (Entered: 11/28/2005)
211 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Enlargement of Time to File Reply Papers submitted to Judge David N. Hurd Joint Request, on Consent. (Keach, Elmer) (Entered: 11/28/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Telephone Conference held on 11/29/2005. In light of the recent decision/summary order from the Second Circuit Court of Appeals, Judge Peebles believes that maybe the parties can discuss settlement options further. Parties report that they may set up a mediation session through an independent mediator from NYC. Plaintiff's counsel is not opposed to having an independent mediator, but has concerns w/ bringing someone up to speed w/ this case, which may be costly and time consuming. Judge believes that having an independent mediator might be beneficial to the parties and will leave it up to them to request a settlement conference w/ the court, if consented to. Parties will continue to explore this further. Plaintiff's counsel has issued a written demand. Defendants' counsel has issued a counter-proposal with two options proposed. Plaintiff's counsel has issued another settlement proposal on 11/22/05 and would like some clarification re: some of the issues contained w/in defendants' counter-proposal. Parties will continue this dialogue and will report on the status at the next telephone conference. Next telephone conference is scheduled for 12/7/05 at 3:00 PM. Defendants' counsel is to initiate the call. APP: Jason Rozger, Esq., Bruce Menken, Esq., Bob Keach, Esq., Joseph Francour, Esq., & Theresa Marangas, Esq.. (sal, ) (Entered: 11/29/2005)
TEXT NOTICE of Hearing: Status Telephone Conference set for 12/7/2005 at 3:00 PM before Magistrate Judge David E. Peebles. Defendants' attorney is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620.(sal, ) (Entered: 11/29/2005)
212 Endorsement ORDER granting 211 Letter Request. Signed by Judge David N. Hurd on 11/28/2005. (see) (Entered: 11/30/2005)
Served a copy of the 212 Order on non-CM/ECF participant Atty Mason by regular mail on 11/30/2005. (see) (Entered: 11/30/2005)
213 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting One day enlargment of time to file Reply Brief submitted to Judge David N. Hurd. (Keach, Elmer) (Entered: 11/30/2005)
214 REPLY to Response to Motion re 207 MOTION for Certificate of Appealability of Order denying Defendants' Motion for Partial Summary Judgment filed by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 11/30/2005)

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12/01/2005
12/05/2005 12/05/2005 12/07/2005 12/13/2005
12/16/2005 12/19/2005 04/12/2006

215 REPLY to Response to Motion re 203 Amended MOTION for Partial Summary Judgment , Permanent Injunction, Preclusion of Expert Testimony and Interim Award of Attorneys' Fees (Corrected to Include All Exhibits) filed by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Exhibit(s) Exhibit A to Keach Affirmation -- Defendants' Statement of Material Fact, August 5, 2004# 2 Exhibit(s) Exhibit B to Keach Affirmation -- Plaintiffs' Notice of Deposition of Defendant Montgomery County, dated September 22, 2003# 3 Exhibit(s) Exhibit C to Keach Affirmation -- Order of USMJ David E. Peebles, dated February 17, 2003# 4 Exhibit(s) Exhibit D to Keach Affirmation -- Deposition of Michael Franko, dated March 8, 2004# 5 Exhibit(s) Exhibit E to Keach Affirmation -Decision of USCA, Second Circuit, dated November 23, 2005# 6 Memorandum of Law)(Keach, Elmer) (Entered: 12/01/2005)
216 Endorsement ORDER granting the 213 Letter Request. Signed by Judge David N. Hurd on 12/5/2005. (see) (Entered: 12/05/2005)
Served a copy of the 216 Order on Letter Request on Atty Mason by regular mail on 12/5/2005. (see) (Entered: 12/05/2005)
At the request of Atty. Marangas the telephone conference scheduled for today at 3:00 pm has been rescheduled to 12/13/05 at 4:30 pm (Atty. Marangas is to initiate the call). Chambers has spoken with plaintiffs' counsel and they consent to this date and time. (cam, ) (Entered: 12/07/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Telephone Conference held on 12/13/2005. Defendants have made an offer on 11/7/05. Plaintiff has responded to that offer w/ an option A and B for their review. Defendants have now raised other issues regarding this settlement, however, plaintiff is willing to discuss these issues w/ them. Judge directs the parties to continue with settlement negotiations. Oral argument on the pending motion is going forward as scheduled before Judge Hurd. (sal, ) (Entered: 12/14/2005)
217 Minute Entry for proceedings held before Judge David N. Hurd : Motion Hearing held on 12/16/2005 in Utica, New York. (Court Reporter Nancy Freddoso) (cmr, ) (Entered: 12/16/2005)
218 MANDATE of USCA as to 153 Notice of Appeal, Judgment of District Court is affirmed(kcl, ) (Entered: 12/29/2005)
219 MEMORANDUM-DECISION & ORDER & PERMANENT INJUNCTION: that pltfs' motion for partial summary judgment as to the liability of the County is GRANTED; pltfs' motion to preclude the testimony of George M. Camp is GRANTED; pltfs' motion for a permanent injunction is GRANTED; defts are PERMANENTLY ENJOINED from conducting a strip search, as set forth in the Jail's "change out" procedure, w/regard to all persons being placed into the custody of the Montgomery County Jail after being charged w/misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, w/o reasonable suspicion that such persons are secreting contraband and/or weapons; pltfs' motion for an interim award of attys' fees & expenses against the County is GRANTED; pltfs shall file & serve, on or before 4/26/2006, an appropriate application for interim attys' fees & expenses for work performed up to 4/26/2006; defts may file & serve a response on or

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04/12/2006 04/12/2006 04/13/2006 04/13/2006 04/14/2006 04/17/2006 04/20/2006
04/24/2006 04/25/2006

before 5/10/2006; the application will be taken on submit; & defts' motion for a COA is DENIED. Signed by Judge David N. Hurd on 4/12/2006. (see) (Entered: 04/12/2006)
220 ORDER: that the case is referred to the Magistrate Judge to make a final effort at settlement & to clarify & finalize the status of the pltf class. The Magistrate Judge's report, shall be due on or before 5/31/2006. If there is no settlement, a trial date will be set immediately thereafter. Signed by Judge David N. Hurd on 4/10/2006. (see) (Entered: 04/12/2006)
Mailed copies of the 219 Memorandum-Decision & Order & Permanent Injunction & 220 Order on Atty Mason by regular mail on 4/12/2006. (see) (Entered: 04/12/2006)
TEXT NOTICE of Hearing: Due to the most recent decision issued by Judge Hurd in this case, a Status Telephone Conference is set for 4/20/2006 at 4:30 PM before Magistrate Judge David E. Peebles. Plaintiff's counsel is to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620. (sal, ) (Entered: 04/13/2006)
221 NOTICE OF APPEAL by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles. (Marangas, Theresa) (Entered: 04/13/2006)
USCA Appeal Fees received $ 455 receipt number ALB002236 re 221 Notice of Appeal filed by County of Montgomery,, Michael Amato,, Montogomery County Sheriff's Department,, Jeffrey Smith,, Kevin Snell,, John Pecora,, Sue Buddles, (ban) (Entered: 04/14/2006)
222 ELECTRONIC NOTICE sent to US Court of Appeals re 221 Notice of Appeal.Appeal Filing fee paid, Rct. No. ALB002236.(ban) (Entered: 04/17/2006)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 4/20/2006. Parties report that there are 2141 potential class members, however, double booking may have occurred and this number may be somewhat less. It is unknown to the parties how many potential class members will actually participate as they have not formally opted in or out. This will be discussed at the next conference. Parties agree to schedule a settlement conferene before an independent mediator shortly. Judge directs the parties to submit a joint or separate statement to the court by 5/15/06 indicating what progress was made during this mediation session. Judge schedules an in-person conference for 5/17/06 at 11:00 AM in Albany, NY. APP: Jason Rozger, Esq., Bruce Menken, Esq., Elmer Keach, Esq., Joseph Francour, Esq., and Theresa Marangas, Esq.. (sal, ) (Entered: 04/21/2006)
223 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Enlargement of Time to File Motion for Interim Attorneys' Fees Until May 1, 2006 submitted to Judge David N. Hurd On Consent. (Keach, Elmer) (Entered: 04/24/2006)
224 Endorsement ORDER granting 223 Letter requesting Enlargement of Time to File Motion for Interim Attorneys' Fees Until May 1, 2006. Signed by Judge David N. Hurd on 4/25/2006. (see) (Entered: 04/25/2006)

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04/25/2006 05/01/2006
05/01/2006 05/15/2006 05/17/2006 06/21/2006 06/29/2006
06/29/2006
06/30/2006

Set Deadlines/Hearings: Motion for Interim Attorneys' Fees to be filed by 5/1/2006. Response due 5/15/2006. (see) (Entered: 04/25/2006)
225 NOTICE by Barbara Davis, Andy Rivera, Paul Marriott re 219 Order on Motion for Partial Summary Judgment,,,,, Order on Motion for Certificate of Appealability,,,, Notice of Application for Interim Award of Attorneys' Fees (Attachments: # 1 Exhibit(s) Dunn Affidavit# 2 Exhibit(s) Arbor Hill Unreported Decision# 3 Exhibit(s) Rozger Affirmation# 4 Exhibit(s) Rozger Time Records# 5 Exhibit(s) Menken Affirmation# 6 Exhibit(s) Menken Time Records# 7 Exhibit(s) Expense Records, Berenbaum, Menken, Ben-Asher & Bierman# 8 Exhibit(s) Martindale Hubbell Listing, Bruce Menken, Jason Rozger# 9 Exhibit(s) Keach Affirmation# 10 Exhibit(s) Keach Time Records)(Keach, Elmer) (Entered: 05/01/2006)
*NOTE: this entry is being made so that the Application shows up as a pending motion. The motion w/supporting documents is attached to document number 225. MOTION for Interim Award of Attorneys' Fees by Barbara Davis, Andy Rivera, Paul Marriott. Motion Hearing on Submit before Judge David N. Hurd. Response to Motion due by 5/15/2006. (see) (Entered: 05/03/2006)
Atty. Bob Keach phoned chambers to inform us that this matter has settled. He will be filing a letter electronically stating this. The settlement documents will take some time to finalize so this matter will be tracked for 90 days. The In-Person Conference scheduled in Albany for 5/17/06 has been CANCELED. (sal, ) (Entered: 05/15/2006)
226 NOTICE of Settlement Letter Informing Court of Settlement In Principal of Class Action by Barbara Davis, Andy Rivera, Paul Marriott (Keach, Elmer) (Entered: 05/17/2006)
USCA Case Number is 06-1822-cv for defts' 221 Notice of Appeal. (cbm, ) (Entered: 06/21/2006)
NOTICE TO COUNSEL: A letter was recently filed w/ this court advising that this case has settled and the parties are in the process of finalizing the settlement agreement. According to the docket, an appeal 221 is still pending, as well as Plaintiffs' 225 Motion for Interim Attorneys' Fees. Plaintiff's counsel is directed to contact Judge Peebles CRD (315) 234-8623 regarding the status of settlement and indicate if Judge Peebles assistance is requested by the parties. (sal, ) (Entered: 06/29/2006)
Atty. Keach and Marangas have contacted the court regarding the status of settlement. Atty. Keach will be electronically filing shortly a letter to Judge Hurd re: impasse on the "opt out issue." CRD advised Atty. Keach that if Judge Peebles assistance is needed in the future, he is to contact Chambers and request a conference. Otherwise, this case will be tracked for the finalized settlement documents. As to Atty. Marangas, she has advised that a stipulation will be submitted to the 2nd Circuit Court of Appeals, w/ a copy to this court, to hold the appeal in abeyance while the parties continue to negotiate settlement terms. (sal, ) (Entered: 06/29/2006)
227 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Confirming Conference with the Court on July 6, 2006 and Detailing

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07/07/2006 08/01/2006
08/01/2006 08/02/2006 08/02/2006 08/03/2006 08/03/2006 08/09/2006 08/10/2006 08/10/2006

Basis for Conference submitted to Judge David N. Hurd. (Keach, Elmer) (Entered: 06/30/2006)
228 Minute Entry for proceedings held before Judge David N. Hurd : Telephone Conference held on 7/6/2006 (Court Reporter None) (cmr, ) (Entered: 07/07/2006)
229 RECORD of Proceedings: Motion held on December 15, 2005 before Judge David N. Hurd, Court Reporter: Nancy L. Freddoso. IMPORTANT NOTICE REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Redact with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal data identifiers is not necessary and the transcript will be made available on the web. Notice of Intent to Redact due by 8/8/2006 (nlf, ) (Entered: 08/01/2006)
230 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles of a joint request via letter for an additional one day extension of time for submission of a joint proposed settlement agreement (Marangas, Theresa) (Entered: 08/01/2006)
231 Endorsement ORDER granting the 230 joint request for an additional one day extension of time for submission of a joint proposed settlement agreement. Signed by Judge David N. Hurd on 8/2/2006. (see) (Entered: 08/02/2006)
232 Letter Motion from defendants for County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles requesting an additional one-day extension to submit a joint proposed settlement agreement submitted to Judge Hurd. (Marangas, Theresa) (Entered: 08/02/2006)
233 Endosement ORDER granting 232 Letter Request for an extension of time to submit a joint proposed settlement agreement; SO ORDERED. Parties are granted a one week extension. Signed by Judge David N. Hurd on 8/3/2006. (see) (Entered: 08/03/2006)
Mailed a copy of the 233 Order on Letter Request to Atty Mason by regular mail on 8/3/2006. (see) (Entered: 08/03/2006)
234 NOTICE by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles of letter request for a one-week extension of time to submit a joint proposed settlement agreement (Marangas, Theresa) (Entered: 08/09/2006)
235 Endorsement ORDER granting the 234 letter request for a one-week extension of time to submit a joint proposed settlement agreement. Signed by Judge David N. Hurd on 8/10/2006. (see) (Entered: 08/10/2006)
Mailed a copy of the 235 Order to Atty Mason by regular mail on 8/10/2006. (see) (Entered: 08/10/2006)

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08/16/2006 08/17/2006 08/17/2006 08/17/2006 08/23/2006
08/31/2006
09/01/2006
09/06/2006 09/12/2006 09/20/2006 09/22/2006 09/22/2006 12/18/2006

236 NOTICE by Barbara Davis, Andy Rivera, Paul Marriott of a joint request via letter for an additional one day extension of time for submission of a joint proposed settlement agreement (Rozger, Jason) (Entered: 08/16/2006)
237 Endorsement ORDER granting the 236 Letter requesting an additional one day extension of time to sumbit the completed settlement agreement. Signed by Judge David N. Hurd on 8/17/2006. (see) (Entered: 08/17/2006)
Mailed a copy of the 237 Order to Atty Mason on 8/17/2006 by regular mail. (see) (Entered: 08/17/2006)
238 NOTICE by Barbara Davis, Andy Rivera, Paul Marriott that the parties have reached agreement on all terms of the settlement (Attachments: # 1 Exhibit(s) A., Settlement Agreement)(Rozger, Jason) (Entered: 08/17/2006)
239 NOTICE of Settlement Agreement signed by County of Montgomery by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles (Marangas, Theresa) Exhibits A-F added on 9/11/2006 (Exhibit B is sealed pursuant to # 242 order ) (cbm, ). (Entered: 08/23/2006)
240 Letter Motion from Plaintiffs for Barbara Davis, Andy Rivera, Paul Marriott requesting Preliminary Approval of Settlement submitted to Judge Hurd. (Attachments: # 1 Exhibit(s) Executed Settlement Agreement# 2 Proposed Order/Judgment Proposed Preliminary Approval Order)(Rozger, Jason) (Entered: 08/31/2006)
241 SUBSTITUTE FOR DOC. 240: CORRECTED Letter Motion from Plaintiffs; Substitute for letter brief filed on August 31, 2006. (Attachments: # 1 Exhibit(s) Corrected letter brief)(Rozger, Jason) Modified on 9/11/2006 to indicate that this document replaces doc. 240 (cbm, ). (Entered: 09/01/2006)
242 SEALED Request & Order to seal Appendix B to the settlement agreement maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/06/2006)
243 MANDATE of USCA withdrawing appeal from active consideration, without prejudice, with leave to reactivate by 12/1/06. (dmf) (Entered: 09/12/2006)
244 TRANSCRIPT of Proceedings (Unredacted): Motion held on December 15, 2005 before Judge David N. Hurd, Court Reporter: Nancy L. Freddoso. (nlf, ) (Entered: 09/20/2006)
245 ORDER PRELIMINARILY APPROVING SETTLEMENT. Signed by Judge David N. Hurd on 9/22/2006. (Attachments: # 1 Exhibit(s) A & B)(see) (Entered: 09/22/2006)
Mailed a copy of the 245 Order to Atty Mason by regular mail on 9/22/2006. (see) (Entered: 09/22/2006)
246 Certified copy of Stip and order of USCA, issued 12/15/06, withdrawing appeal w/o prejudice, subject to reactivation on written notice by 6/1/07. (cbm, ) (Entered: 12/18/2006)

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12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/20/2006 12/20/2006 12/20/2006 12/20/2006 12/20/2006 12/26/2006 01/03/2007 02/27/2007

247 STIPULATION of Dismissal As Against Defendant, Jeffrey Smith by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge Hurd. (Marangas, Theresa) (Entered: 12/19/2006)
248 STIPULATION of Dismissal As Against Defendant, John Pecora by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge Hurd. (Marangas, Theresa) (Entered: 12/19/2006)
249 STIPULATION of Dismissal As Against Defendant, Kevin Snell by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge Hurd. (Marangas, Theresa) (Entered: 12/19/2006)
250 STIPULATION of Dismissal As Against Defendant, Michael Amato by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge Hurd. (Marangas, Theresa) (Entered: 12/19/2006)
251 STIPULATION of Dismissal As Against Defendant, Sue Buddles by County of Montgomery, Montogomery County Sheriff's Department, Michael Amato, Jeffrey Smith, Kevin Snell, John Pecora, Sue Buddles submitted to Judge Hurd. (Marangas, Theresa) (Entered: 12/19/2006)
252 Endorsement ORDER granting the 248 Stipulation of Dismissal as Against John Pecora. Signed by Judge David N. Hurd on 12/20/2006. (see) (Entered: 12/20/2006)
253 Endorsement ORDER granting the 247 Stipulation of Dismissal as Against deft Jeffrey Smith with prejudice. Signed by Judge David N. Hurd on 12/20/2006. (see) (Entered: 12/20/2006)
254 Endorsement ORDER granting the 249 Stipulation of Dismissal as Against deft Kevin Snell with prejudice. Signed by Judge David N. Hurd on 12/20/2006. (see) (Entered: 12/20/2006)
255 Endorsment ORDER granting the 250 Stipulation of Dismissal as Against deft Michael Amato with prejudice. Signed by Judge David N. Hurd on 12/20/2006. (see) (Entered: 12/20/2006)
256 Endorsement ORDER granting the 251 Stipulation of Dismissal as Against Sue Buddles with prejudice. Signed by Judge David N. Hurd on 12/20/2006. (see) (Entered: 12/20/2006)
257 STIPULATION/ORDER of USCA as to 221 Notice of Appeal filed by Jeffrey Smith, John Pecora, Kevin Snell, Montogomery County Sheriff's Department, Michael Amato, Sue Buddles, County of Montgomery Withdrawing Appeal without prejudice (filed w/2nd Circuit on 12/13/06). (lmp) (Entered: 12/26/2006)
258 NOTICE OF OBJECTION to the Proposed Class Action Settlement by Class Member David Porter. (see) (Entered: 01/04/2007)
259 Letter Motion from Jason Rozger for Barbara Davis, Andy Rivera, Paul Marriott requesting that the Plaintiff and the class' motion for final approval of the

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03/06/2007 03/08/2007 03/09/2007 03/09/2007 03/23/2007 04/13/2007 04/17/2007 04/27/2007
04/28/2007

settlement may be filed by March 9, 2007. submitted to Judge Hurd. (Rozger, Jason) (Entered: 02/27/2007)
260 ORDER granting 259 Letter Requesting that their written application for final approval of the settlement be due on 3/9/2007. Signed by Judge David N. Hurd on 3/6/2007. (see) (Entered: 03/06/2007)
261 Letter Motion from Jason Rozger for Barbara Davis, Andy Rivera, Paul Marriott requesting adjournment of final approval hearing and permission to execute certain documents on behalf of the class submitted to Judge Hurd. (Attachments: # 1 Proposed Order/Judgment)(Rozger, Jason) (Entered: 03/08/2007)
262 ORDER granting 261 Letter Request to adjourn Final Approval Hearing date; adjourning hearing date from 3/23/07 to 4/27/07 at 10:00 AM. The date on which class counsel must file their final approval memo and supporting documentation has been extended from 3/9/07 to 4/13/07. Signed by Judge David N. Hurd on 3/9/07. (cbm, ) (Entered: 03/09/2007)
263 ORDER: Elmer Robert Keach, III may execute a release for each of pltfs' class representatives to effectuate the release of monies from the NY Liquidation Bureau. Signed by Judge David N. Hurd on 3/9/07. (cbm, ) (Entered: 03/09/2007)
264 NOTICE by Barbara Davis, Andy Rivera, Paul Marriott of Change of Address and Firm Name for Alexander Barnett and Change of Firm Name for Gary E. Mason (Barnett, Alexander) (Entered: 03/23/2007)
265 MOTION to Approve Consent Judgment Motion Hearing set for 4/27/2007 10:00 AM in Albany before Judge David N. Hurd. by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Affirmation Of Bruce Menken# 2 Affidavit of Settlement Administrator# 3 Memorandum of Law # 4 Exhibit(s) A, settlement agreement) (Rozger, Jason) (Entered: 04/13/2007)
NOTICE of Hearing on Motion 265 MOTION to Approve Consent Judgment : Motion Hearing set for 4/27/2007 on submit. No need to appear. Ct. to issue written decision. (cmr, ) (Entered: 04/17/2007)
266 AFFIDAVIT in Support re 265 MOTION to Approve Consent Judgment without Exhibits E & F, which will be filed under separate cover filed by Barbara Davis, Andy Rivera, Paul Marriott. (Attachments: # 1 Exhibit(s) Exhibit A -- Rust Consulting Affidavit# 2 Exhibit(s) Exhibit B -- long form notice# 3 Exhibit(s) C --- Spanish Notice# 4 Exhibit(s) D -- Claim Form# 5 Exhibit(s) G--Website Affidavit# 6 Exhibit(s) H -- Objection# 7 Exhibit(s) I -- Keach Fee Affidavit# 8 Exhibit(s) J -- BMBB Fee Affidavit# 9 Exhibit(s) K -- Mason Fee Affidavit)(Keach, Elmer) (Entered: 04/27/2007)
267 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Providing the Court with Exhibits Omitted from Final Approval Affidavit and Proposed Order Regarding Late Claimants submitted to Judge David N. Hurd. (Attachments: # 1 Exhibit E to Final Approval Affidavit -- Initial short Form Notice# 2 Exhibit F to Final Approval Affidavit -- Later Short Form Notice# 3 Proposed Order Regarding Late Claimants)(Keach, Elmer) (Entered: 04/28/2007)

43 of 44

7/30/2007 11:20 AM

CM/ECF LIVE - U.S. District Court - NYND - Docket Report

https://ecf.nynd.uscourts.gov/cgi-bin/DktRpt.pl?387562417956426-L_3...

05/01/2007 05/03/2007 05/15/2007 07/19/2007

268 ORDER granting pltf's 267 letter request to allow late claimants, identified in exhibit D of the affidavit of the settlement administrator, to participate in class action settlement. Signed by Judge David N. Hurd on 5/1/2007. (see) (Entered: 05/02/2007)
269 Letter Motion from Elmer Keach for Barbara Davis, Andy Rivera, Paul Marriott requesting Providing Proposed Order for Final Approval To Court submitted to Judge David N. Hurd. (Attachments: # 1 Proposed Order/Judgment)(Keach, Elmer) (Entered: 05/03/2007)
270 ORDER granting 269 Letter Request: granting final approval of class action settlement and judgment. Signed by Judge David N. Hurd on 5/14/07. (cbm, ) (Entered: 05/15/2007)
271 MANDATE of USCA, issued 7/17/07: appeal was not reactivated, now considered withdrawn w/prejudice.(cbm, ) (Entered: 07/19/2007)

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44 of 44

7/30/2007 11:20 AM

 
 •

MONTGOMERY COUNTY SHERIFF'S OFFICE
CORRECTIONS DIVISION
INMATE MANAGEMENT
POUCYANDPROCEDURES
SUBJECT' ADMISSIONS
AUTHORITY R. R. EMERY, SHERIFF

NUMBER: CD 04·07·00
SUPERSEDESNUMBE~
EFFECTIVE DATE: 07/01/96
PAGE: 1 OF 7 PAGES DISTRIBUTION ALL AUTHORIZED MANUALS ISSUED BY LT. R.J. EMERY

REFERENCES: ACA# 3·1F·07, 3·1F·08, 3·2C·10, 3·3C·03, 3-4A·01 THRU 3-4A·04, 3-4D·08, 3-:4D·12, 3-4D·13 SCOC# 7002, 7005.6 SAS# 151

•

POUCY:
THE ADMISSION PROCESS IN A LOCAL CORRECTIONAL FACILITY IS AVERY COMPLEX YET ESSENTIAL FACTOR OF THE FACILITIES OPERATION. THE MONTGOMERY CORRECTIONAL FACILITY HAS A LEGAL OBLIGATION TO PROVIDE THE SAFE AND SECURE DETENTION OF ALL INDIVIDUAL LAWFULLY COMMITTED TO THE CUSTODY OF THE SHERIFF. IN AN EFFO,RTTO FULFILL THIS LEGAL OBLIGATION, EACH NEWLY ADMITTED INMATE WILL BE SUBJECT TO THE PRESCRIBED ADMISSION PROGRAM UPON THEIR ARRIVAL TO THE FACILITY.

GENERAL INFORMATION:

1.

INITIAL INTAKE PROCEDURES WILL BE CARRIED OUT FOR ALL INMATES

RECEIVED AT THIS FACILITY, REGARDLESS OF THE LE;NGTH OF TIME THEY MAY

BE DETAINED. INITIAL INTAKE PRACTICES ARE ESSENTIAL FOR DOCUMENTING

EACH INTAKE, GATHERING NECESSARY INFORMATION ASSESSING THE

CONDITION OF EACH INMATE AND EXPLAIN TO THEM THAT POSITIVE BEHAVIOR

IS REWARDED AND THAT NEGATIVE BEHAVIOR WILL NOT BE TOLERATED.

2.

TO ENSURE INMATE RIGHTS ARE NOT VIOLATED, OFFICER'S WILL MAKE AN

EFFORT WHENEVER POSSIBLE TO LESSEN INMATE ANXIETY BY ANSWERING·

ALL QUESTIONS AND BY FAMILIARIZING THE INMATE WITH WHAT WILL BE

EXPECTED OF THEM.

3.

THE INTAKE AND ADMISSIONS PROCESS IS A POTENTIALLY DANGEROUS AND

DIFFICULT TIME FOR ALL STAFF.

MON0000003622

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NO. 5825 P. 11

• •

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07-00 PAGE: 2 OF 7 PAGES

PROCEDURES:

A. ADMISSIONS/BOOkING GENERAL:

1.

AFTER VERIFYING THE IDENTITY OF THE TRANSPORTING OFFICER VIA CAMERA.

THE CENTRAL CONTROL WILL OPEN THE VEHICLE SALLYPORT DOOR AND

SECURE IT ONCE THE VEHICLE IS INSIDE.

2.

THE CENTRAL CONTROL WILL INFORM THE BOOKING OFFICER OF A INCOMING

INMATE.

3.

THE TRANSPORT OFFICER WILL GIVE COMMITMENT PAPERS TO THE BOOKING

OFFICER THRU PASS THRU TO VERIFY THE FOLLOWING:

A

THE PERSON NAMED ON COMMITMENT IS THE PERSON BEING

DETAINED;

B. THE PERSON IS THE PROPER AGE FOR ADMISSION. NO ONE UNDER
THE AGE OF 16 WILL BE INCARCERATED EXCEPT IN ACCORDANCE WITH CPL-51 0.15 OR f=CA 304;

C.

CONFIRM THAT THE COMMITMENT IS INTENDEDhFOR THIS FACLUTY AND

IS NOT INTENDED FOR ANOTHER FACIU1Y:

'

D. CONFIRM THAT THE COMMITMENT DOCUMENT IS NOT OTHERWISE DEFECTIVE SO AS TO RENDER THE ADMIS~ION OF AN 'INMATE UNLAWFl,JL:

1.

IF ANY OF THE COMMIITlNG PAPERWORK IS INACCURATE. WE

WILL REFUSE TO TAKE THE INMATE UNTIl:. SUCH TIME AS ALL

DOCUMENTS ARE LAWFUL

E.

THE COMMITMENT BEARS APPROPRIATE SIGNATURE OF AUTHORITY;

4.

THE TRANSPORT OFFICER{S) WILL SECURE THEIR WEAPONS IN THE LOCKERS

PROVIDED, AND ESCORT THE INMATE TO THE VESTIBULE DOOR.

5.

THE BOOKING OFFICER WILL NOTIFY CENTRAL CONTROL TO OPEN THE OUTER

VESTIBULE DOOR AND SECURE IT ONCE THE INMATE(S) IS/ARE INSIDE.

6.

THE BOOKING OFFICER WILL OPEN THE INNER VESTIBULE DOOR AND PAT

SEARCH THE INMATE. AFTER THE PAT SEARCH IS COMPLETED, THE BOOKING

OFFICER WILL REMOVE ALL RESTRAINTS. IF CONTRABAND IS FOUND REFER TO

CONTRABAND CD 05-03-03.

a

•
• , ~ ~~et;ilff.
•

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

N.UMBER: CD 04-07-00 PAGE: 3 OF 7 PAGES

7.

THE BOOKING OFFICER WILL THEN ESCORT THE INMATE INTO THE WAITING

AREA FOR AN INJTIAL 15 MINUTE PHONE CALL PERIOD.

8.

THE BOOKING OFFICER WILL SECURE THE INNER VESTIBULE DOOR. CENTRAL

CONTROL WILL BE NOTIFIED TO OPEN OUTER DOOR TO LET TRANSPORT

OFFICER(S) BACK TO THEIR VEHICLE AND DEPART THE VEHICLE SALLYPORT.

9.

UPON COMPLETION OF THE INITIAL PHONE CALL PERIOD, THE BOOKING

OFFICER WILL INSTRUCT THE INMATE TO COME TO THE BOOKING COUNTER

TO BEGIN THE BOOKING PROCESS.

10. THE BOOKING OFFICER WILL COMPLETE THE FOLLOWING.

A

BOOKING SHEET;

B.

TUBERCULOSIS SCREENING;

C.

SUICIDE SCREENING FORM;

D.

PERSONAL APPEARANCE FORM;

E .

INTERIM CLASSIFICATION SHEET;

F.

CLASSIFICATION NOTIFICATION FORM;

G.

COpy OF CLASSIFICATION NOTIFICATION FORM TO INMATE;

H.

COMMENT SHEET (INITIAL PHONE CALL);

.

I.

PROPERTY SHEET (PLACE IN PROPERTY BAG);

J.

PROPERTY BAG PLACED IN STORAGE;

K.

COpy OF PERSONAL PROPERTY SHEET TO INMATE;

L.

PRINT CARD (IF REQUIRED);

M.

PICTURE (FRONT/SIDE PROFILE);

N.

MONEY RECEIPT (PLACE AMOUNT ON LEDGER);

O.

INMATE RULES AND REGULATION (#ON PROPERTY SHEET);

P.

FEDERAL INMATE INTAKE FORM (IF NECESSARy)

1.

IF AT ANY TIME AN INMATE REFUSES TO SIGN THE· BOOKING

PAPERWORK. THE BOOKING OFFICER SHALL OBTAIN ANOTHER

OFFICER AS A WITNESS AND BOTH OFFICERS WILL SIGN THE

PAPERWORK.

11. IF THE INMATE IS GOING TO BE BAILED OUT AFTER THE BOOKING PROCESS, THE INMATE WILL BE PLACED IN A HOLDING CELL OR THE WAITING AREA (DEPENDING ON BEHAVIOR) FOR A PERIOD OF UP TO, BUT NOT TO EXCEED TWO HOURS TO WAIT FOR BAIL.

12. IF THE INMATE IS NOT BAILED, THE BOOKING OFFICER WILL ESCORT THE INMATE TOTHE SHOWER AREA WHERE THE INMATE WILL DISROBE AND PLACE ALL CLOTHES IN THE BAG PROVIDED BY THE OFFICER, AND BE REQUIRED TO TAKE A SHOWER.

A.

ALL PERSONS AND PERSONAL PROPERTY SHALL BE SEARCHED IN

ACCORDANCE TO THE LAW. SOLELY TO PREVENT THE INTRODUCTION

OF CONTRABAND TO THE FACILITY. REFER TO (CD 05-03-00) .

MON0000003624

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NO, 5825 p, 13

•

, ......"i......:;:;cs:z...1AiZ_5.. = .. ·~Vln

PROCEDURAL GUIDELINES
, ,
SUBJECT= ADMISSION

NUMBER: CD D4~07·0D PAGE: 4 OF 7 PAGES

B. FOR THE DISPOSAL OF CONTRABAND, REFER TO CD 05-03.03.
13, THE SOOKING OFFICER WILL ISSUE THE FOLLOWING ITEMS TO THE NEW INMATE AT THE COMPLETION OF THE SHOWER.

•

A.

THREE (3) SETS OF FACILllY CLOTHING;'

S.

ONE {1} SATH TOWEl,.;

.

C.

ONE (1) TOOTHBRUSH AND TOOTHPASTE;

D.

ONE (1) SOAP;

E.

ONE (1) DRINKING GLASS;

Lf'. TWQC;27 f\OLLS OF TOILE I PAf9'EoR+

G. TWO(2) SHEETS;

H.

ONE (1) PILLOW CASE;

I.

ONE (1) BLANKET;

,..J

0",,= (1) bV !~!DRY BA.e:

14. AFTER BOOKING AND SHOWERING IS COMPLET-ED, THE INMATE WILL BE
REQUIRED TO VIEW A SHORT ORIENTATION FILM ON THE RULES OF WHAT IS REQUIRED OF HIM/HER WHILE INCARCERATE:D AT THE FACILITY.

15, THE BOOKING OFFICER WILL ESCORT THE INMATE TO THE INTAKE UNIT OF

,THE.FACILITY TO START THE CLASSIFI'~ATION PERIOD.

l~~~

16. 'THE BOOKING OFFICER WILL ENSURE ALL PAPER WORK ,MONEY, AND PERSONAL PROPERTY BAG IS STORED IN THE APPROPRIATE PLACE BEFORE CONTINUING HIS OTHER DUTIES,

B. 'N0r:J-COMPLAINT INMATE:

1.

CENTRAL CONTROL WILL NQTIFY THE SHIFT SUPERVISOR AND THE BOOKING

OFFICER OF A INCOMING NON·~9MPU.INT INMATE.

2.

THE SHIFT SUPERVISOR WILL REQUEST A ESCORT OFFICER TO COME TO THE

BOOKING AREA.

.

3.

THE BOOKING OFFICER AND ESCORT OFFICERS WILL ASSIST THE

TRANSPORTING OFFICER IN ADMITTING THE INMATE' INTO THE FACILITY.

•

4.

IF IT IS DETERMINED THAT THE INMATE MUST BE KEPT IN RESTRAINTS, THE "

SHIFT SUPERVISOR WILL REQUEST THAT THE RESTRAINTS BE LEFT ON UNTIL

THE INMATE IS SECURED IN A HOLDING CELL.

'

.

.

5.

ONCE IN THE HOLDING CELL THE RESTRAINTS WILL BE REMOVED. AT THE

DISCRETION OF THE SHIFT SUPERVISOR THE INMATE MAY OR MAY NOT HAVE

THE RESTRAINTS REAPPLIED BEFORE THE BOOKING PROCESS BEGINS.

e PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07-00 PAGE: 5 OF 7 PAGES

6.

THE TRANSPORT OFFICER(S) WILL THEN EXIT THE FACILITY UNDER THE

NORMAL PROCEDURES STATED ABOVE.

C.

HANDICAPPED AND PROSTHESIS:

1.

FOLLOW NORMAL PROCEDURES 1-16 FOR BOOKING.

2.

INMATES WEARING A PROSTHETIC DEVI'CE WILL BE ASKED TO REMOVE SUCH

A DEVICE FOR THE SOLE PURPOSE OF A CONTRABAND SEARCH OF THE

DEVICE IF THE INMATE REFUSES TO COMPLY;

A.

THE INMATE WILL BE PLACED IN A HOLDING CELL;

B.

MEDICAL PERSONAL AND THE SHIFT SUPERVISOR WILL BE ADVISED OF

SITUATION;

e·

C.

THE PROSTHETIC DEVICE WILL BE REMOVED AT THE DISCRETION OF

THE MEDICAL STAFF;

3.

CRUTCHES, WHEELCHAIRS AND CANES WILL BE SEARCHED FOR

CONTRABAND AND IF AVAILABLE EXCHANGED WITH FACILITY ISSUED DEVICES

(IF AVAILABLE).

4.

INMATES WEARING CASTS WILL BE SEARCHED WITH HAND HELD SCANNERS

AND VISUALLY SEARCHED.

D.

DRUG I ALCOHOL:

1.

FOLLOW BOOKING PROCEDURES 1-6 FOR NORMAL BOOKING.

2.

IF THE BOOKING OFFICER DETERMINES AN INMATE IS TO INTOXICATED TO

COMPLETE THE BOOKING PROCESS, THE OFFICER WILL PLACE THE INMATE IN

A HOLDING CELL UNTIL AN OFFICER DETERMINES THE INMATE IS ABLE TO

CONTINUE THE BOOKING PROCESS.

3.

THE BOOKING OFFICER WILL INSURE ALL PROPERTY, BELT, AND SHOE LACES

ARE REMOVED FROM THE INMATE BEFORE PLACING HIM/HER IN A HOLDING

CELL.

E.

MAJOR INTOXICATION:

1.

IF THE BOOKING OFFICER DETERMINES THAT THE INMATES DEGREE OF

INTOXICATION IS LIFE THREATENING THE OFFICER WILL;

MON0000003626

I~UV. L,). LVVj b:Lb~M

NO. 5825 P. 15

L·"
•

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07..00 PAGE: 6 OF 7 PAGES

A.

NOTIFY A SHIFT SUPERVISOR AND MEDICAL STAFF(lF AVAILABLE);

8. THE SHIFT SUPERVISOR OR MEDICAL STAFF WILL DETERMINE THE APPROPRIATE MEDICAL ATrENTION. NEEDED;

C. IF DEEMED NECESSARY, THE INMATE WILL BE TRANSPORTED.TO THE HOSPITAL FOR TREATMENT. FOtLOWING THE RETURN OF THE INMATE NORMp,.L SOOKING PROCEDURES WILL 8E COMPLETED;

D. IF THE INMATE IS KEPT IN THE HOSPITAL, THE BOOKING OFFICER WILL GO TO THE HOSPITAL TO BOOK INMATE IN;

f.

INJURY (MINOR):

•

1.

WHEN AN INJURY IS DISCOVERED OR THE BOOKING OFFICER IS NOTIFIED OF

AN INJURY THE OFFICER WILL;

A.

DOCUMENT INJURY ON PHYSICAL APPEARANCE FORM AND TAKE

PHOTO FOR INMATE FOLDER:

B.

IF MEDICAL STAFF IS AVAILABLE THE NURSE SHALL mEAT THE INMATE,

OR THE OFFICER WILL ADMINISTER FIRST AID;

C. WHEN FIRST AID IS COMPLETED RETURN TO NORMAL BOOKING PROCEDURES AND SEE NURsE WHEN AVAILABLE;
G. MAJOR I LIFE THREATENING INJURY:

1.

UPON' DISCOVERING AN INJURY THE BOOKING OFFICER WILL DIRECT THE

TRANSPORT OFFICER TO TRANSPORT THE INMATE TO A HOSPITAL.

.

2.

IF THE TRANSPORT OFFICER REFUSES THE BOOKING OFFICER WILL NOTIFY A

SHIFT SUPERVISOR AND MEDICAL STAFF (IF AVAILABLE).

3.

THE SHIfT SUPERVISOR WILL ARRANGE FOR THE INMATE TO BE TAKEN TO

THE HOSPITAL 8Y AMBULANCE WITH AN ESCORT OFFICER TO SUPERVISE.

THE SHIFT SUPERVISOR WILL DETERMINE IF RESTRAINTS ARE DEEMED

NECESSARY.

•

4.

CONTROL WILL SE NOTIFIED TO OPEN GATE AND VEHICLE SALLYPORT TO

EXPEDITE THE AMBULANCES ENTRANCE AND EXIT IN THE FACILITY. ( REFER

TO HOSPITALIZED INMATES.)

.

5

UPON A DOCTORS EXAMINATION THE ESCORT OFFICER WILL NOTIFY THE

SHIFT SUPERVISOR OF THE INMATES CONDITION AND.STATUS AS SOON AS

POSSIBLE.

. .'

•

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07-00 PAGE: 7 OF 7 PAGES

H.
••

6

THE SHIFT SUPERVISOR WILL ARRANGE FOR TRANSPORTATION BACK TO THE

FACILITY IF THE INMATE IS RELEASED OR RELIEF OF A OFFICER IF THE INMATE

IS ADMITTED.

7.

IF ADMITTED, THE BOOKING OFFICER WILL GO TO THE HOSPITAL TO BOOK

THE INMATE IN TO THE FACILITY.

WALK-IN I WEEKENDER:

1.

THE LOBBY OFFICER VERIFIES COMMITMENT / PAPER WORK ON FILE AND

CONTACTS THE sHIFT SUPERVISOR.

2.

THE LOBBY OFFICER WILL NOTIFY THE ESCORT OFFICER TO COME TO LOBBY

AND THE INMATE WILL BE ESCORTED INTO VISITING VESTIBULE AND

THROUGH THE METAL DETECTOR AND PAT SEARCHED.

3.

AFTER A PAT SEARCH, THE OFFICER WILL ESCORT THE INMATE TO THE

BOOKING AREA .

4.

ONCE IN THE BOOKING AREA NORMAL BOOKING PROCEDURES WILL BE

COMPLETED AND THE INMATE WILL BE PLACED IN THE INTAKE UNIT OF THE

FACILITY .

• ') MON0000003628

) ,~

MONTGOMERY COUNTY SHERIFF'S OFFICE
CORRECTIONS DIVISION

NUMBER: CD 04-07-00 SUPERSEDES NUMBER:

INMATE MANAGEMENT

EFFECTIVE DATE: 05/21/03

POLICY AND PROCEDURES

PAGE: 1 OF 7 PAGES

SUBJECT ADMISSIONS

DISTRIBUTION

-_." . _._..

--- - - ...--.--.- --- '._'-'-_. '--'.'--_ _.. -'-- ------- _ALL.AUII:I.DRIZED_MAN UALS ________ .. ,---

AUTHORITY MICHAEL J. AMATO, SHERIFF

ISSUED BY JOHN F. PECORA

ADMINISTRATOR

REFERENCES: ACA# 3-1 F-07, 3-1 F-08, 3-2C-10, 3-3C-03, 3-4A-01 THRU 3-4A-04, 3-4D-08,

3-4D-12, 3-4D-13 SCOC# 7002, 7005.6 SAS# 151

POLICY:
THE ADMISSION PROCESS IN A LOCAL CORRECTIONAL FACILITY IS A VERY COMPLEX YET ESSENTIAL FACTOR OF THE FACILITIES OPERATION. THE MONTGOMERY CORRECTIONAL FACILITY HAS A LEGAL OBLIGATION TO PROVIDE THE SAFE AND SECURE DETENTION OF ALL INDIVIDUAL'S LAWFULLY COMMITTED TO THE CUSTODY OF THE SHERIFF. IN AN EFFORT TO FULFILL THIS LEGAL OBLIGATION, EACH NEWLY ADMITTED INMATE WILL BE SUBJECT TO THE PRESCRIBED ADMISSION PROGRAM UPON THEIR ARRIVAL TO THE FACILITY.

GENERAL INFORMATION:

1.

INITIAL INTAKE PROCEDURES WILL BE CARRIED OUT FOR ALL INMATES

RECEIVED AT THIS FACILITY, REGARDLESS OF THE LENGTH OF TIME THEY MAY

BE DETAINED. INITIAL INTAKE PRACTICES ARE ESSENTIAL FOR DOCUMENTING

EACH INTAKE, GATHERING NECESSARY INFORMATION ASSESSING THE

CONDITION OF EACH INMATE AND EXPLAIN TO THEM THAT POSITIVE BEHAVIOR

IS REWARDED AND THAT NEGATIVE BEHAVIOR WILL NOT BE TOLERATED.

2.

TO ENSURE INMATE RIGHTS ARE NOT VIOLATED, OFFICER'S WILL MAKE AN

EFFORT WHENEVER POSSIBLE TO LESSEN INMATE ANXIETY BY ANSWERING-

ALL QUESTIONS AND BY FAMILIARIZING THE INMATE WITH WHAT WILL BE

EXPECTED OF THEM.

3.

THE INTAKE AND ADMISSIONS PROCESS IS A POTENTIALLY DANGEROUS AND

DIFFICULT TIME FOR ALL STAFF.

MON0000003641

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07-00 PAGE: 2 OF 7 PAGES

PROCEDURES:

A.

ADMISSIONS/BOOKING GENERAL:

1.

AFTER VERIFYING THE IDENTITY OF THE TRANSPORTING OFFICER VIA CAMERA.

THE CENTRAL CONTROL WILL OPEN THE VEHICLE SALLYPORT DOOR AND

SECURE IT ONCE THE VEHICLE IS INSIDE.

2.

THE CENTRAL CONTROL WILL INFORM THE BOOKING OFFICER OF AN INCOMING

INMATE.

3.

THE TRANSPORT OFFICER WILL GIVE COMMITMENT PAPERS TO THE BOOKING

OFFICER THRU PASS THRU TO VERIFY THE FOLLOWING:

A.

THE PERSON NAMED ON COMMITMENT IS THE PERSON BEING

DETAINED;

B.

THE PERSON IS THE PROPER AGE FOR ADMISSION. NO ONE UNDER THE

AGE OF 16 WILL BE INCARCERATED EXCEPT IN ACCORDANCE WITH CPL·

510.15 OR FCA 304;

C.

CONFIRM THAT THE COMMITMENT IS INTENDED FOR THIS FACILITY AND

IS NOT INTENDED FOR ANOTHER FACILITY;

D.

CONFIRM THAT THE COMMITMENT DOCUMENT IS NOT OTHERWISE

DEFECTIVE SO AS TO RENDER THE ADMISSION OF AN INMATE

UNLAWFUL;

1.

IF ANY OF THE COMMITTING PAPERWORK IS INACCURATE. WE

WILL REFUSE TO TAKE THE INMATE UNTIL SUCH TIME AS ALL

DOCUMENTS ARE LAWFUL.

E.

THE COMMITMENT BEARS APPROPRIATE SIGNATURE OF AUTHORITY;

4.

THE TRANSPORT OFFICER (S) WILL SECURE THEIR WEAPONS IN THE LOCKERS

PROVIDED, AND ESCORT THE INMATE TO THE VESTIBULE DOOR.

5.

THE BOOKING OFFICER WILL NOTIFY CENTRAL CONTROL TO OPEN THE OUTER

VESTIBULE DOOR AND SECURE IT ONCE THE INMATE (S) IS/ARE INSIDE.

6.

THE BOOKING OFFICER WILL OPEN THE INNER VESTIBULE DOOR AND PAT

SEARCH THE INMATE. AFTER THE PAT SEARCH IS COMPLETED, THE BOOKING

OFFICER WILL REMOVE ALL RESTRAINTS. IF CONTRABAND IS FOUND REFER TO

CONTRABAND CD 05-03-03.

MON0000003642

PROCEDURAL GUIDELINES SUBJECT: ADMISSION

NUMBER: CD 04-07-00 PAGE: 3 OF 7 PAGES

7.

THE BOOKING OFFICER WILL THEN ESCORT THE INMATE INTO THE WAITING

AREA FOR AN INITIAL 15 MINUTE PHONE CALL PERIOD AND GIVE THE

RESTRAINTS TO THE TRANSPORT OFFICER.

A.

A INITIAL PHONE CALL WILL ALSO BE OFFERED AT THE BOOKING DESK.

1.

LOCAL PHONE CALLS AT FACILITY EXPENSE;

2.

LONG DISTANCE CALLS WILL BE MADE COLLECT EXCEPT WHEN

AUTHORIZED BY A SHIFT SUPERVISOR.

8.

THE BOOKING OFFICER WILL SECURE THE INNER VESTIBULE DOOR. CENTRAL

CONTROL WILL BE NOTIFIED TO OPEN OUTER DOOR TO LET TRANSPORT

OFFICER(S) BACK TO THEIR VEHICLE AND DEPART THE VEHICLE SALLYPORT.

9.

UPON COMPLETION OF THE INITIAL PHONE CALL PERIOD, THE BOOKING

OFFICER WILL INSTRUCT THE INMATE TO COME TO THE BOOKING COUNTER TO

BEGIN THE BOOKING PROCESS.

10. THE BOOKING OFFICER WILL COMPLETE THE FOLLOWING.

A

BOOKING SHEET;

B.

TUBERCULOSIS SCREENING;

C.

SUICIDE SCREENING FORM;

D.

PERSONAL APPEARANCE FORM;

E.

INTERIM CLASSIFICATION SHEET;

F.

CLASSIFICATION NOTIFICATION FORM;

G.

COPY OF CLASSIFICATION NOTIFICATION FORM TO INMATE;

H.

COMMENT SHEET (INITIAL PHONE CALL);

I.

PROPERTY SHEET (PLACE IN PROPERTY BAG);

J.

PROPERTY BAG PLACED IN STORAGE;

K.

COPY OF PERSONAL PROPERTY SHEET TO INMATE;

L.

PRINT CARD (IF REQUIRED);

M.

PICTURE (FRONT/SIDE PROFILE);

N.

MONEY RECEIPT (PLACE AMOUNT ON LEDGER);

O.

INMATE RULES AND REGULATION # (ON PROPERTY SHEET);

P.

FEDERAL INMATE INTAKE FORM (IF NECESSARY).

1.

IF AT ANY TIME AN INMATE REFUSES TO SIGN THE BOOKING

PAPERWORK. THE BOOKING OFFICER SHALL OBTAIN ANOTHER

OFFICER AS A WITNESS AND BOTH OFFICERS WILL SIGN THE

PAPERWORK.

11. IF THE INMATE IS GOING TO BE BAILED OUT AFTER THE BOOKING PROCESS, THE INMATE WILL BE PLACED IN A HOLDING CELL OR THE WAITING AREA (DEPENDING ON BEHAVIOR) FOR A PERIOD OF UP TO, BUT NOT TO EXCEED TWO HOURS TO WAIT FOR BAIL.

MON0000003643

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12. IF THE INMATE IS NOT BAILED, THE BOOKING OFFICER WILL ESCORT THE INMATE TO THE SHOWER AREA WHERE THE INMATE WILL DISROBE AND PLACE ALL CLOTHES IN THE BAG PROVIDED BY THE OFFICER, AND BE REQUIRED TO TAKE A SHOWER

A.

ALL PERSONS AND PERSONAL PROPERTY SHALL BE SEARCHED IN

ACCORDANCE TO THE LAW. SOLELY TO PREVENT THE INTRODUCTION

OF CONTRABAND TO THE FACILITY. REFER TO (CD 05-03-00).

B.

FOR THE DISPOSAL OF CONTRABAND, REFER TO CD 05-03-03.

13. THE BOOKING OFFICER WILL ISSUE THE FOLLOWING ITEMS TO THE NEW INMATE AT THE COMPLETION OF THE SHOWER.

A.

THREE (3) SETS OF FACILITY CLOTHING;

B.

ONE (1) BATH TOWEL;

C.

ONE (1) TOOTHBRUSH AND TOOTHPASTE;

D.

ONE (1) SOAP;

E.

ONE (1) DRINKING CUP;

F.

ONE (1) ROLL OF TOILET PAPER;

G.

TWO (2) SHEETS;

H.

ONE (1) PILLOW CASE;

I.

ONE (1) BLANKET;

J.

ONE (1) LAUNDRY BAG;

K.

ONE (1) PROPERTY BOX;

L.

ONE (1) INMATE HANDBOOK;

M.

ONE (1) PAIR OF SHORTS;

N.

ONE (1) MATTRESS;

O.

ONE (1) PILLOW;

R.

ONE (1) PAIR OF FACILITY FOOTWEAR (AS APPLICABLE).

14. AFTER BOOKING AND SHOWERING IS COMPLETED, THE INMATE WILL BE REQUIRED TO VIEW A SHORT ORIENTATION FILM ON THE RULES OF WHAT IS REQUIRED OF HIM/HER WHILE INCARCERATED AT THIS FACILITY.

15. THE BOOKING OFFICER WILL ESCORT THE INMATE TO THE INTAKE UNIT OF THE -fAGIDTYiO-STARTTRFClAS-STF1CATrOKfPERIDD·'-- -.--~------------.-- --.---.- - ... - -------------

16. THE BOOKING OFFICER WILL ENSURE ALL PAPER WORK, MONEY, AND PERSONAL PROPERTY BAG IS STORED IN THE APPROPRIATE PLACE BEFORE CONTINUING HIS OTHER DUTIES.

B.

NON·COMPLAINT INMATE:

1.

CENTRAL CONTROL WILL NOTIFY THE SHIFT SUPERVISOR AND THE BOOKING

OFFICER OF AN INCOMING NON-COMPLAINT INMATE.

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2.

THE SHIFT SUPERVISOR WILL REQUEST AN ESCORT OFFICER TO COME TO THE

BOOKING AREA.

3.

THE BOOKING OFFICER AND ESCORT OFFICERS WILL ASSIST THE

TRANSPORTING OFFICER IN ADMIDING THE INMATE INTO THE FACILITY.

4.

IF IT IS DETERMINED THAT THE INMATE MUST BE KEPT IN RESTRAINTS, THE

SHIFT SUPERVISOR WILL REQUEST THAT THE RESTRAINTS BE LEFT ON UNTIL

THE INMATE IS SECUREb IN A HOLDING CELL.

5.

ONCE IN THE HOLDING CELL THE RESTRAINTS WILL BE REMOVED. AT THE

DISCRETION OF THE SHIFT SUPERVISOR THE INMATE MAY OR MAY NOT HAVE

THE RESTRAINTS REAPPLIED BEFORE THE BOOKING PROCESS BEGINS.

6.

THE TRANSPORT OFFICER (S) WILL THEN EXIT THE FACILITY UNDER THE

NORMAL PROCEDURES STATED ABOVE.

C.

HANDICAPPED AND PROSTHESIS:

·1.

FOLLOW NORMAL PROCEDURES 1-16 FOR BOOKING.

2.

INMATES WEARING A PROSTHETIC DEVICE WILL BE ASKED TO REMOVE SUCH A

DEVICE FOR THE SOLE PURPOSE OF A CONTRABAND SEARCH OF THE DEVICE

IF THE INMATE REFUSES TO COMPLY;

A.

THE INMATE WILL BE PLACED IN A HOLDING CELL;

B.

MEDICAL PERSONAL AND THE SHIFT SUPERVISOR WILL BE ADVISED OF

SITUATION;

C.

THE PROSTHETIC DEVICE WILL BE REMOVED AT THE DISCRETION OF

THE MEDICAL STAFF;

3.

CRUTCHES, WHEELCHAIRS AND CANES WILL BE SEARCHED FOR CONTRABAND

AND IF AVAILABLE EXCHANGED WITH FACILITY ISSUED DEVICES (IF AVAILABLE).

4.

INMATES WEARING CASTS WILL BE SEARCHED WITH HAND HELD SCANNERS

AND VISUALLY SEARCHED.

D.

DRUG I ALCOHOL:

1.

FOLLOW BOOKING PROCEDURES 1-6 FOR NORMAL BOOKING.

2.

IF THE BOOKING OFFICER DETERMINES AN INMATE IS TO INTOXICATED TO

COMPLETE THE BOOKING PROCESS, THE OFFICER WILL PLACE THE INMATE IN

A HOLDING CELL UNTIL AN OFFICER DETERMINES THE INMATE IS ABLE TO

CONTINUE THE BOOKING PROCESS.

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3.

THE BOOKING OFFICER WILL INSURE ALL PROPERTY, BELT, AND SHOE LACES

ARE REMOVED FROM THE INMATE BEFORE PLACING HIM/HER IN A HOLDING

CELL.

E.

MAJOR INTOXICATION:

1.

IF THE BOOKING OFFICER DETERMINES THAT THE INMATES DEGREE OF

INTOXICATION IS LIFE THREATENING THE OFFICER WILL;

A.

NOTIFY A SHIFT SUPERVISOR AND MEDICAL STAFF (IF AVAILABLE);

B.

THE SHIFT SUPERVISOR OR MEDICAL STAFF WILL DETERMINE THE

APPROPRIATE MEDICAL ATTENTION NEEDED;

C.

IF DEEMED NECESSARY, THE INMATE WILL BE TRANSPORTED TO THE

HOSPITAL FOR TREATMENT. FOLLOWING THE RETURN OF THE INMATE

NORMAL BOOKING PROCEDURES WILL BE COMPLETED;

D.

IF THE INMATE IS KEPT IN THE HOSPITAL, THE BOOKING OFFICER WILL

GO TO THE HOSPITAL TO BOOK INMATE IN.

F.

INJURY (MINOR):

1.

WHEN AN INJURY IS DISCOVERED OR THE BOOKING OFFICER IS NOTIFIED OF

AN INJURY THE OFFICER WILL;

A.

DOCUMENT INJURY ON PHYSICAL APPEARANCE FORM AND TAKE PHOTO

FOR THE INMATE CUSTODY FILE;

B.

ADMINISTER BASIC FIRST AID OR IFMEDICAL STAFF IS AVAILABLE. THE

NURSE SHALL TREAT THE INMATE;

C.

WHEN THE INMATE IS ABLE, RETURN TO NORMAL BOOKING

PROCEDURES AND SEE NURSE WHEN AVAILABLE;

G.

MAJOR I LIFE THREATENING INJURY:

1.

UPON DISCOVERING AN INJURY THE BOOKING OFFICER WILL DIRECT THE

TRANSPORT OFFICER TO TRANSPORT THE INMATE TO A HOSPITAL.

2.

IF THE TRANSPORT OFFICER REFUSES THE BOOKING OFFICER WILL NOTIFY A

SHIFT SUPERVISOR AND MEDICAL STAFF (IF AVAILABLE).

3.

THE SHIFT SUPERVISOR WILL ARRANGE FOR THE INMATE TO BE TAKEN TO THE

HOSPITAL BY AMBULANCE WITH AN OFFICER TO SUPERVISE. THE SHIFT

SUPERVISOR WILL DETERMINE IF RESTRAINTS ARE DEEMED NECESSARY.

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4.

CENTRAL CONTROL WILL BE NOTIFIED TO OPEN THE VEHICLE SALLYPORT TO

EXPEDITE THE AMBULANCES ENTRANCE AND EXIT IN THE FACILITY. (REFER TO

HOSPITALIZED INMATES.)

5

UPON A DOCTORS EXAMINATION THE OFFICERWILL NOTIFY THE SHIFT

SUPERVISOR OF THE INMATES CONDITION AND STATUS AS SOON AS POSSIBLE.

6

THE SHIFT SUPERVISOR WILL ARRANGE FOR TRANSPORTATION BACK TO THE

FACILITY IF THE INMATE IS RELEASED OR RELIEF OF THE OFFICER IF THE

INMATE IS ADMITIED.

7.

IF ADMITIED, THE BOOKING OFFICER WILL GO TO THE HOSPITAL TO COMPLETE

THE BOOKING PAPERWORK.

H.

WALK-IN I WEEKENDER:

1.

THE BOOKING OFFICER VERIFIES COMMITMENT / PAPER WORK ON FILE.

2.

THE CENTRAL CONTROL OFFICER WILL NOTIFY THE ESCORT OFFICER TO

COME TO LOBBY AND THE INMATE WILL BE ESCORTED THROUGH THE METAL

DETECTOR AND INTO VISITING VESTIBULE TO BE PAT SEARCHED.

3.

AFTER A PAT SEARCH, THE OFFICER WILL ESCORT THE INMATE TO THE

BOQKING AREA.

4.

ONCE IN THE BOOKING AREA NORMAL BOOKING PROCEDURES WILL BE

COMPLETED AND THE INMATE WILL BE PLACED IN THE INTAKE UNIT OF THE

FACILITY.

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