Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

GREGORY GARVEY, Sr. on behalf of himself )

and on behalf of others similarly situated,

)

Plaintiffs

)

)

v.

)

)

FREDERICK B. MACDONALD, and FORBES )

BYRON in their individual capacities,

)

Defendants

)

__________________________________________)

Civil Action No. 07-30049

COMPLAINT

INTRODUCTION 1. This is a civil rights class action for money damages against Franklin County Sheriff Frederick B. Macdonald and Special Sheriff Superintendent Forbes Byron in their individual capacities for routine unconstitutional strip searches on intake of pre-arraignment detainees at the Franklin County Jail and House of Correction (“Franklin County Jail”). On November 29, 2006, named plaintiff Gregory Garvey Sr. was involved in a car accident in Whately, Massachusetts. An officer who responded to the scene notified Mr. Garvey that his right to drive in Massachusetts had been suspended for failure to pay excise taxes. The officer told Mr. Garvey that he would receive a notice of the date to appear in court by mail. 2. Mr. Garvey paid the outstanding excise tax. He never received a notice from the court. At approximately 11:00 pm on January 30, 2007, Sunderland police officers arrived at Mr. Garvey’s home and arrested him on a default warrant for failure to appear in court earlier that day on the charge of operating on a suspended driver’s license. The officers brought Mr. Garvey to the Franklin County Jail where he was held until he could appear in court the next morning.

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 2 of 8
3. At the jail, correctional officers strip searched Mr. Garvey based on a written policy of the Sheriff that required a strip search on admission to the facility. The officers ordered Mr. Garvey to strip naked, bend over and spread his buttocks, to allow a corrections officer to visually inspect his nude body, including his genitals. Before the jail officers took Mr. Garvey to court, they strip searched him a second time. When Mr. Garvey appeared in court the next morning, the court dismissed the charges against him. Mr. Garvey felt humiliated, degraded and violated as a result of the strip searches.
4. The named plaintiff Gregory Garvey Sr., seeks to represent a class of all people strip searched after March 28, 2004, without individualized reasonable suspicion at the Franklin County Jail due to the policies or practices of the defendant Franklin County Sheriff.
5. On information and belief, hundreds of people have been subjected to unconstitutional strip searches upon admission to the Franklin County Jail.
JURISDICTION 6. This action is brought pursuant to 42 U.S.C. §§1983 and 1988 and the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. §§1331 and 1343.
PARTIES 7. Named plaintiff Gregory Garvey Sr. was at all times relevant to this complaint a resident of the Commonwealth of Massachusetts. 8. Defendant Frederick B. Macdonald was at all times relevant to this complaint, a resident of the Commonwealth of Massachusetts. He has been the Sheriff of Franklin County since January 6, 1993. He is sued in his individual capacity for actions he took under color of law.
-2-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 3 of 8
9. Defendant Forbes Byron was at all times relevant to this complaint a resident of the Commonwealth of Massachusetts and the Special Sheriff Superintendent responsible for operation of the Franklin County. He is sued in his individual capacity for actions he took under color of law.
FACTS 10. When their home in Mississippi was destroyed by Hurricane Katrina, Gregory Garvey, his wife Diana Garvey, and his daughter relocated to Massachusetts. 11. In late November 2006, Mr. Garvey was involved in a motor vehicle accident in Whately, Massachusetts. 12. A Whately police officer arrived at the scene of the accident. The officer ran Mr. Garvey’s Mississippi driver’s license through his computer. He discovered that Mr. Garvey’s right to operate a motor vehicle in Massachusetts had been suspended because he had not paid a Massachusetts excise tax years earlier when he had previously lived in Massachusetts. 13. The officer gave Mr. Garvey a motor vehicle citation and told him that he would receive a notice of a court date in the mail. Mr. Garvey did not receive notice of a court date. 14. On Tuesday, January 30, 2007, at approximately 11:00 p.m., Sunderland police officers arrived at Mr. Garvey’s home and placed him under arrest for failure to appear in court earlier that day. 15. After the arrest, the police officers took Mr. Garvey to the Sunderland Police Station where he was fingerprinted and processed. Then Sunderland police officers took him to the Franklin County Jail in Greenfield, Massachusetts to be held until he could appear in court the next morning. 16. It was the practice of police officers in Sunderland and other police departments in Franklin County to bring pre-arraignment detainees to the Franklin County Jail to be held before their first court appearance.
-3-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 4 of 8
17. As Sheriff, Frederick B. Macdonald was responsible for all of the policies of the Franklin County Sheriff’s Department, including the strip search policies of the Franklin County Jail. His job responsibilities included assuring that the polices and practices of the jail complied with the Constitution.
18. As the Special Sheriff and Superintendent of the Franklin County Jail, Forbes Byron was responsible for the policies of the Jail including the strip search policies. His job responsibilities included assuring that the polices and practices of the jail complied with the Constitution.
19. Sheriff Macdonald issued and Special Sheriff Byron implemented General Order 506 which, up until February 25, 2007, mandated that all detainees except those in protective custody be strip searched on admission to the jail and again before leaving the jail to go to court.
20. During the admission procedure at the Franklin County Jail, a correctional officer ordered Mr. Garvey to remove all of his clothing and submit to a strip search.
21. Mr. Garvey complied with the request. He removed his clothing and followed the orders of the correctional officer to bend and spread the cheeks of his buttocks. The corrections officer told Mr. Garvey, “We have to watch you do it. Bend over. Spread your cheeks.”
22. The officer visually inspected the plaintiff’s nude body including his genitals. 23. The officer had no reason to suspect that Mr. Garvey had any weapons or contraband hidden on his person. The officer did not find anything as a result of the strip search. After the search, Mr. Garvey was required to put on a jail uniform. 24. The next morning, Mr. Garvey was strip searched again before he was allowed to put on his clothing to go to court. 25. Once at the courthouse, all charges were dropped against Mr. Garvey and he was informed that he was free to leave.
-4-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 5 of 8
26. Mr. Garvey suffered emotional distress as a result of the strip search. He was surprised and shocked. He felt humiliated, degraded, and violated.
27. General Order 506 of the Office of the Franklin County Sheriff was a policy established
and/or maintained by Sheriff Macdonald and implemented by Special Sheriff Byron that required Franklin County Jail officers to view, without evaluating for individualized reasonable suspicion, the naked body of every person at the time of admission to the Franklin County Jail and before leaving for a first court appearance. This policy applied regardless of the person’s charges or anticipated duration of detention. The policy directed employees of the Sheriff’s Department to conduct unconstitutional strip searches of the plaintiff and members of the plaintiff class.
CLASS ACTION ALLEGATIONS 28. This action is brought pursuant to Rule 23(a) and (b) (1) and (3) of the Federal Rules of Civil Procedure by the named plaintiff as a class action on behalf of all people strip searched after March 28, 2004, and before February 25, 2007, without individualized reasonable suspicion at the Franklin County Jail due to the a policy or practice of Sheriff Macdonald: (a) while waiting for bail to be set or for a first court appearance after being arrested on
charges that did not involve a weapon, drugs, contraband or a violent felony, or (b) while waiting for a first court appearance after being arrested on a default or other
warrant for charges that did not involve a weapon, drugs, contraband or a violent felony. 29. The named plaintiff, Gregory Garvey, is a member of the class. The class represented by the plaintiff is so numerous that joinder of all such persons is impractical. On information and belief, the policy or practice described above has existed for more than three years before this complaint was filed, affecting hundreds of potential class members.
-5-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 6 of 8
30. There are questions of law and fact common to the class of plaintiffs. Central to all the claims is the nature and constitutionality of the policy or practice of Sheriff Macdonald regarding intake strip searches without individualized reasonable suspicion of pre-arraignment detainees.
31. The named plaintiff’s claims or defenses are typical of the claims or defenses of the class of plaintiffs.
32. The named plaintiff will fairly and adequately represent and protect the interests of the members of the class. Counsel for the plaintiff is experienced and capable in civil rights litigation. Class counsel has successfully represented plaintiffs in other class actions alleging unlawful strip searches. Counsel has the resources and expertise to prosecute this action.
33. This action is properly maintainable as a class action because the prosecutions of separate actions by the individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class, which would establish incompatible standards of conduct for the defendant.
34. This action is properly maintainable as a class action because the prosecution of separate actions would create a risk of adjudications with respect to individual members of the class that would, as a practical matter, be dispositive of the interests of the other members who are not parties or would substantially impair or impede their ability to protect their interests.
35. As a direct result of the policy or practice as described above, class members have been subjected to unlawful strip searches, which has caused each member of the class to endure emotional distress, humiliation, and degradation.
-6-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 7 of 8
CLAIM: 42 U.S.C. § 1983 36. The above paragraphs are incorporated herein. 37. Sheriff Macdonald was the chief executive officer of the Franklin County Sheriff’s Department. He promulgated the strip search policy at the Franklin County Jail. 38. Sheriff Macdonald knew, or should have known, that there was a policy of conducting strip searches, without individualized reasonable suspicion, of pre-arraignment prisoners at intake and again before court in violation of the United States Constitution. He had an obligation to correct this practice so that it would conform to the Constitution. 39. Special Sheriff Superintendent Byron was responsible for supervision and daily operations of the Franklin County Jail. He implemented the strip search policy at the Jail. 40. Special Sheriff Superintendent Byron knew, or should have known, that there was a policy or practice of conducting strip searches, without individualized reasonable suspicion, of prearraignment prisoners at intake and again before court in violation of the United States Constitution. He had an obligation to correct this practice so that it would conform to the Constitution. 41. By allowing the policy or practice of routine strip searches to continue during the class period, defendants Macdonald and Byron acted with reckless indifference to the constitutional rights of individuals who were detained at the Franklin County Jail as described above. 42. Ten years before January 30, 2007, the law was clearly established that routine intake strip searches of pre-arraignment detainees like the plaintiff and members of the plaintiff class without evaluating for cause were unconstitutional. A decision granting summary judgment to plaintiffs for a similar policy implemented by the Sheriff of Suffolk County Massachusetts was issued on July 31, 2001. Ford v. City of Boston, 154 F. Supp.2d 131 (D.Mass. 2001) (holding the
-7-

Case 3:07-cv-30049-KPN Document 1 Filed 03/28/2007 Page 8 of 8

law regarding strip searches of pre-arraignment detainees without individualized suspicion was clearly established in 1997).
43. By the actions described above, the defendants deprived the named plaintiff and members of the plaintiff class of their clearly established right, guaranteed by the Constitution of the United States, to be free from unreasonable searches.
44. As a direct and proximate result of this conduct, the plaintiff and the plaintiff class have suffered injuries as described above.
WHEREFORE the plaintiffs request that this Court: 1. Award compensatory damages and punitive damages to the named plaintiff and to
members of the plaintiff class; 2. Award the plaintiffs the costs of this action including reasonable attorney’s fees; and 3. Award whatever additional relief this Court deems necessary and appropriate.
JURY DEMAND A jury trial is hereby demanded.
RESPECTFULLY SUBMITTED,

Date: March 28, 2007

/s/ Howard Friedman ____________________________ Howard Friedman BBO #180080 Jennifer L. Bills BBO #652223 Law Offices of Howard Friedman, P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 Tel: (617) 742-4100 Fax: (617) 742-5858
-8-

Page 1 of 1

Neal Alpert

From: ECFnotice@mad.uscourts.gov

Sent: Wednesday, March 28, 2007 12:36 PM

To:

CourtCopy@mad.uscourts.gov

Subject: Activity in Case 3:07-cv-30049 Garvey v. MacDonald et al "Complaint"

***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing.

United States District Court

District of Massachusetts

Notice of Electronic Filing

The following transaction was received from Friedman, Howard entered on 3/28/2007 at 12:35 PM EDT

and filed on 3/28/2007

Case Name:

Garvey v. MacDonald et al

Case Number: 3:07-cv-30049

Filer:

Gregory Garvey, Sr

Document Number: 1

Docket Text: COMPLAINT against all defendants Filing fee: $ 350, receipt number 1462511, filed by Gregory Garvey, Sr.(Friedman, Howard)

The following document(s) are associated with this transaction:

Document description:Main Document Original filename:yes Electronic document Stamp: [STAMP dcecfStamp_ID=1029851931 [Date=3/28/2007] [FileNumber=1821261-0 ] [99278c8f0d8a68345c79665ec33cbbeaa756e05fe8ac80478892a98a75ee8c403db 7b73703d49ea8edd6efdd0b974248de3b84b18f2efacf582e6aec4596c6cb]]

3:07-cv-30049 Notice will be electronically mailed to:
Howard Friedman hfriedman@civil-rights-law.com, nalpert@civil-rights-law.com; hfriedman@rcn.com

3:07-cv-30049 Notice will not be electronically mailed to:

3/28/2007

 
 Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 1 of 19

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

GREGORY GARVEY, ET AL., Plaintiffs
v.
FREDERICK MACDONALD and FORBES BYRON,
Defendants

)

)

)

)

)

)

Civil Action No. 07-30049-KPN

)

)

)

)

)

)

MEMORANDUM AND ORDER WITH REGARD TO CROSS-MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 31 and 37) October 22, 2009
NEIMAN, U.S.M.J.
Presently before the court are cross-motions for summary judgment in this class
action “strip search” case brought by Gregory Garvey (“Garvey”) and other similarly-
situated pre-arraignment detainees (“Plaintiffs”) at the now-closed Franklin County Jail
(“FCJ”) in Greenfield, Massachusetts. The class this court certified on April 15, 2008,
consists of the following:
All people strip searched without individualized suspicion on or after March 28, 2004, and before February 25, 2007, at the [FCJ] (a) while waiting for bail to be set or for a first court appearance after being arrested on charges that did not involve a weapon, drugs, contraband or a violent felony, or (b) while waiting for a first court appearance after being arrested on a default or other warrant for charges that did not involve a weapon, drugs, contraband or a violent felony.
(Docket No. 18 and Electronic Order dated Apr. 15, 2008.) Plaintiffs and Defendants --
Sheriff Frederick Macdonald and Special Sheriff Forbes Byron, both of whom have

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 2 of 19
been sued in their individual capacities -- have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c).
For the reasons that follow, Plaintiffs’ motion for summary judgment will be allowed and Defendants’ cross-motion will be denied. There are two questions at issue in the cross-motions: (1) whether the strip-search policy in place at the FCJ during the class period was unconstitutional; and (2) even if the policy was unconstitutional, whether qualified immunity bars this action against Defendants. In the court’s opinion, the answer to the first question is “yes” while the answer to the second is “no.”
I. BACKGROUND In presenting this background, the court has focused solely on the undisputed facts submitted by the parties. See Littlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004) (“Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.”) (citation and internal quotation marks omitted). The court begins with Plaintiffs’ facts, turns to Defendants’ facts and then describes the procedural history. A. Plaintiffs’ Facts At around 11:00 p.m. on January 30, 2007, police officers from Sunderland, Massachusetts, came to Garvey’s home and arrested him on a default warrant for failure to appear in court on the charge of operating on a suspended driver’s license. (Pls.’ Local Rule 56.1 Statement (hereinafter “Pls.’ Facts”) ¶ 25.) The officers took Garvey to the FCJ to be held until he could appear in court the next morning. (Id. ¶ 26.)
2

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 3 of 19
At the time of Garvey’s arrest, police departments throughout Franklin County regularly brought arrestees and individuals arrested on default or other warrants (collectively, “pre-arraignment detainees”) to the FCJ to be held before their first court appearance. (Id. ¶ 5.) The facility, however, also housed detainees being held pending trial (“pretrial detainees”) as well as prisoners serving committed sentences. (Id. ¶ 6.)
When Garvey arrived at the FCJ, a correctional officer placed him in a cell by himself in the booking area. (Id. ¶ 26.) Next, another officer entered the cell and ordered him to take off all his clothes. (Id. ¶ 27.) When Garvey was completely naked, the officer said: “We have to watch you do it. Bend over. Spread your cheeks.” (Id.) Garvey did as he was told and the officer looked at his naked body, including his genitals. (Id.) There was no reason for the officer to believe Garvey had hidden contraband, and none was found during the strip-search. (Id. ¶ 33.)1
After the search, the officer ordered Garvey to dress in a jail jump suit and leave the cell for booking. (Id. ¶¶ 28, 29.) The booking officer then asked Garvey questions and took his photograph, after which another officer put him back in the same cell in the booking area. (Id. ¶ 29.) Garvey remained in that cell by himself until morning. (Id.)
At around 7:00 a.m., an officer came into Garvey’s cell and ordered him to
1 The First Circuit defines a “strip-search” as a visual inspection of an inmate’s naked body, and a “visual body cavity search” as a strip-search that includes the visual inspection of an inmate’s anal and genital areas. See Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985). Here, the parties use only the term “strip-search” to describe the searches at issue and, accordingly, the court does likewise, even though the searches were more akin to the more intrusive visual body cavity searches.
3

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 4 of 19
remove the jump suit and his underwear. (Id. ¶ 31.) Once again, when Garvey was completely naked, the officer ordered him to bend over and spread his buttocks and then the officer looked at his naked body, including his genitals. (Id.) As before, there was no reason to believe Garvey had hidden contraband and none was found. (Id. ¶ 33.) After the strip-search, Garvey was allowed to put on his clothing. (Id. ¶ 31.)
Soon thereafter, Garvey was chained to other prisoners and taken to the Greenfield District Court. (Id. ¶ 32.) This was the first time he came in contact with any other prisoner. (Id.) When Garvey appeared in court, the judge dismissed the charges and released him from custody. (Id. ¶ 34.)
Garvey’s experience was typical of other pre-arraignment detainees at the FCJ during the class period, as well as in conformance with the FCJ’s policy and practice. (Id. ¶¶ 11, 35.) Defendants’ policy and practice at the time -- specifically section .05 of “General Order 506,” which was adopted on October 5, 2001, and reissued on October 18, 2005 -- required that correctional officers strip-search all pre-arraignment detainees both at the time of admission to the jail (prior to booking) and then again before leaving for a first court appearance, with the sole exception of those people who were held in protective custody. (Id. ¶¶ 4, 10.)2
2 In full, section .05 of General Order 506 provided as follows: 1. Inmates shall be strip searched in the following instances:
a. prior to and at the conclusion of a transportation trip; b. return from escape or attempted escape; c. after visitation;
4

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 5 of 19
Pursuant to Defendants’ policy and practice, all pre-arraignment detainees were
strip-searched without regard to where in the facility they would be housed or whether
they would come into contact with other inmates. (Id. ¶ 14.) In addition, all pre-
d. after return to the facility from temporary release; and
e. prior to placement in a segregation or other maximumsecurity unit.
2. All admissions to the facility (with the exception of Protective Custody detainees) shall be strip searched at the time of admission.
3. Protective Custody detainees, under an Officer’s supervision, shall be required to remove all outer garments and change into the standard issued uniform. The Officer supervising this procedure shall be of the same gender as the detainee.
4. Officers may, at any time, order the strip search of an inmate. The Office of Sheriff may, through General Orders, Directives and Post Orders, require strip searches in other situations.
5. Strip searches shall be conducted in relative privacy by Officers of the same gender as the inmate.
6. The Officer conducting the search shall direct the inmate to remove all articles of clothing and to stand clear of the clothing. The Officer shall conduct a thorough visual examination of the unclothed inmate in accordance with his/her training and experience. Examination shall be made of casts, bandages, false teeth and artificial prostheses. The Officer shall issue verbal instructions to facilitate the search. The Officer shall examine the inmate’s clothing by turning the articles inside out, checking linings, cuffs, waistbands, seams, patches and collars. The soles, heels and interior of footwear shall be checked.
When more than one inmate is being strip searched (e.g. at the end of a visiting period or return from outside transportation) the supervising Officer shall ensure that those inmates who have been searched do not come in contact with those inmates who have not yet been searched.
(Document no. 34 (“Milton Decl.”), Exs. G and H.)
5

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 6 of 19
arraignment detainees were strip-searched without regard to the crimes for which they
were being held or whether they were individually suspected of carrying weapons, drugs or other contraband. (Id. ¶ 13.3)
Approximately 927 people were held as pre-arraignment detainees during the
class period. (Id. ¶ 15.) In only one instance were drugs found as a result of a strip-
search; that individual, however, had been brought in for possession of drugs with
intent to distribute and is not part of the class in this case. (Id. ¶ 17.) In another
instance, a strip-search revealed “contraband,” namely, pierced nipple rings fused
together such that they could not be removed by hand. (Id.) In no other instance
during the class period was a strip-search necessary to reveal drugs or contraband.
(Id. ¶ 18.) On three occasions drugs were found in a pre-arraignment detainee’s
clothing or backpack during the booking process; these drugs would have been found
without subjecting the individual to a strip-search. (Id.)
Macdonald has been the Franklin County Sheriff since 1993. (Id. ¶ 1.) As the
top official in the Sheriff’s Office, he has statutory control and responsibility, and is the
final policymaker, for the FCJ. (Id.) He is also responsible for ensuring that the
3 This particular practice is purportedly “disputed” by Defendants, who claim that the documents Plaintiffs reference in this regard do not explicitly state that this was the policy of the FCJ. (See Defs.’ Facts at 6, ¶ 13.) As Plaintiffs point out, however, Defendants never deny the allegation, i.e., that the strip-search policy applied to all pre-arraignment detainees without regard to the crimes for which they were being held or whether they were individually suspected of carrying weapons, drugs or other contraband. (See Pls.’ Reply Mem. in Further Support of Pls.’ Motion for Summ. J. (“Pls.’ Reply”) at 2.) Moreover, the practice described by Plaintiffs comports with Defendants’ other admissions, e.g., that they maintained a policy throughout the class period of subjecting all pre-arraignment detainees to a strip-search and that all prearraignment detainees were strip-searched pursuant to this policy. (See id.)
6

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 7 of 19
policies of the FCJ comply with the Constitution. (Id.) As for Byron, he has been Superintendent of the FCJ since 1997. (Id. ¶ 2.) He is the chief administrative officer of the Sheriff’s Office and is in charge of operations at the FCJ. (Id.)
It is undisputed that Macdonald issued and Byron implemented General Order 506 which, as indicated, contained the written version of the strip-search policy that was in place throughout the class period. (Id. ¶ 3.) It is also undisputed that Byron reviewed and supported the policy before it took effect. (Id.) B. Defendants’ Facts
For their part, Defendants point out that the FCJ was constructed in 1886 and was originally built to house 66 prisoners, but, together with a 60-prisoner modular addition, eventually had a rated capacity of 126 prisoners. (Defs.’ Local Rule 56.1 Statement (hereinafter “Defs.’ Facts”) ¶ 1; Pls.’ Response to Defs.’ Local Rule 56.1 Statement (hereinafter “Pls.’ Response”) ¶ 1.) Defendants also aver that, during the class period, the FCJ served as the sole jail and house of correction in Franklin County. (Defs.’ Facts ¶ 2; Pls.’ Response ¶ 2.) In addition, Defendants state that the FCJ was used by most of the police departments in rural Franklin County to hold prearraignment detainees pursuant to Mass. Gen. L. ch. 126, § 4 (“section 4”), as most local departments had no specific holding facilities of their own. (Defs.’ Facts ¶ 13.)4
4 Section 4, as Defendants point out, permits jails to hold pre-arraignment detainees where local lockups are unavailable:
Jails shall be used for the detention of persons charged with crime and committed for trial, committed to secure their attendance as witnesses upon the trial of criminal causes, committed pursuant to a sentence upon conviction of crime or for any cause authorized by law, or detained or
7

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 8 of 19
On February 26, 2007, the new Franklin County House of Correction (“FCHOC”) opened and replaced the FCJ. (Id. ¶ 3.) While the new FCHOC was built in the modern “pod” style (two tiers of cells positioned within the perimeter of a common dayroom, which allows direct supervision of all cells), the FJC had been built in the “linear” style (cells lining corridors offering only indirect surveillance). (Id. ¶ 5.) In addition, the cells in the FCJ were 48 square feet, compared to 80 square feet at the new FCHOC. (Id. ¶ 6.)
As noted, Macdonald adopted the blanket strip-search policy for all prearraignment detainees well prior to the class-period. (Id. ¶ 14.) Defendants claim, however, that this was as a result of “institutional security issues” caused by the “archaic nature” of the FCJ and, moreover, that the policy was “intended to protect the safety of both the inmates and the correctional officers.” (Id.) For example, Defendants point out that three cells were used to handle pre-arraignment detainees within the “extremely tight” booking area (constructed in 1994), which also included a booking desk. (Id. ¶¶ 7, 9; Pls.’ Response ¶ 9.) Defendants also indicate that, occasionally, pre-arraignment detainees were held in the booking area “overnight.” (Defs.’ Facts ¶ 11.) Defendants state as well that most of the cells in the FCJ had bars -- instead of
committed by the courts of the United States. Jails may also be used for the detention of persons arrested without a warrant and not admitted to bail pending appearance before the district court, provided that no adequately equipped lock-up established in accordance with the provisions of section thirty-four of chapter forty is available for the detention of such person. Mass. Gen. L. ch. 126, § 4.
8

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 9 of 19
metal doors with windows as in the new facility -- and, as a result, prisoners could reach out from the cells and, perhaps, pass around contraband. (Id. ¶ 6.) Although Defendants admit that the record does not indicate a major contraband problem, they refer to the handful of instances -- noted above in Plaintiffs’ Facts -- of contraband being confiscated from pre-arraignment detainees during the class period. (Id. ¶¶ 2428.) Defendants also claim that contraband confiscated from detainees was not always documented or reported by correctional officers as required by policy. (Id. ¶¶ 25-27.)
While Plaintiffs take issue with Defendants’ characterizations of some of the facts, they assume them true for purposes of their motion. Plaintiffs note, however, that the blanket strip-search policy was changed to a “reasonable suspicion” standard when the new FCHOC opened in 2007. (Id. ¶ 20; Pls.’ Response ¶¶ 14, 20.) Plaintiffs also note that as early as November 29,1999 -- i.e., nearly five years prior to the class period -- the FCJ policy was temporarily changed from the blanket strip-search policy to a “reasonable suspicion” standard. (Defs.’ Facts ¶ 15; Pls.’ Response ¶ 20.)5 However, this altered policy was short-lived; on December 3, 1999, Macdonald changed the policy back to require strip-searches of all pre-arraignment detainees, and that was the policy in place during the class period. (Defs.’ Facts ¶ 17.) C. Procedural History
The instant case was filed on March 28, 2007, and proceeded in two stages. First, the parties engaged in class certification discovery and filed memoranda of law
5 At his deposition, Macdonald testified that he adopted the temporary policy change to avoid getting sued and because he thought it might be required by law. (Pls.’ Response ¶ 15.)
9

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 10 of 19
with regard to Plaintiffs’ motion for class certification. As indicated, that motion was allowed on April 15, 2008. Second, the parties engaged in discovery on the merits and filed the cross-motions for summary judgment presently before the court.
II. STANDARD OF REVIEW “Summary judgment is warranted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Uncle Henry’s, Inc. v. Plaut Consulting Co., 399 F.3d 33, 41 (1st Cir. 2005) (quoting Fed. R. Civ. Pro. 56(c). “An issue is ‘genuine’ for purposes of summary judgment if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a ‘material fact’ is one which might affect the outcome of the suit under the governing law.” Carcieri v. Norton, 398 F.3d 22, 29 (1st Cir. 2005) (citations and further internal quotation marks omitted). The mere fact that both parties move for summary judgment does not affect this standard, see Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005) (citation omitted)), particularly where, as here, most of the facts are undisputed, Littlefield, 392 F.3d at 6.
III. DISCUSSION As indicated, two questions are at the core of the parties’ motions: (1) whether the strip-search policy was unconstitutional and (2) even if the policy was unconstitutional, whether qualified immunity bars this action against Defendants. In the court’s opinion, the answer to the first question is “yes,” the policy was unconstitutional, and the answer to the second question is “no,” Defendants are not protected by
10

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 11 of 19
qualified immunity. A. Whether the Policy is Unconstitutional
The general rule in this circuit appears to now be that strip-searches of all misdemeanor arrestees require reasonable suspicion that the individual is armed or concealing contraband. See United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007) (citing cases). See also Wood v. Hancock County Sheriff’s Dep’t, 354 F.3d 57, 62 (1st Cir. 2003) (“Our case law holds that an individual detained on a misdemeanor charge may be strip searched as part of the booking process only if officers have reasonable suspicion that he is either armed or carrying contraband.”); Roberts v. Rhode Island, 239 F.3d 107, 110-11 (1st Cir. 2001) (“at least in the context of prisoners held in local jails for minor offenses,” officers must “have a reasonable suspicion that a particular detainee harbors contraband prior to conducting a strip or visual body cavity search”) (citing Bell v. Wolfish, 441 U.S. 520 (1979), and Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997)). The need for reasonable suspicion stems from the recognition by the First Circuit that strip-searches “impinge seriously upon Fourth Amendment values,” are “a severe if not gross interference with a person’s privacy,” and are “an offense to the dignity of the individual” as well as “an extreme intrusion on personal privacy.” Roberts, 239 F.3d at 110 (citations and internal quotation marks omitted).
Defendants do not claim, nor is there any evidence, that the strip-searches of the class members were conducted based on any reasonable, individualized suspicion. Nor is there any claim or evidence that any class member was armed or suspected of concealing contraband. As noted, the class has been narrowly defined to include only
11

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 12 of 19
pre-arraignment detainees arrested on charges that did not involve a weapon, drugs, contraband or a violent felony.
In the court’s view, the handful of “problem” detainees identified through discovery have no bearing on the legal issues presented by the parties. These detainees consist of only (1) three individuals upon whom drugs were found without the need for a strip-search, (2) one individual with exceptionally unique, and minor, “contraband,” i.e., fused nipple rings, and (3) one other individual who had smuggled drugs on his body but who is not a member of the class. Even assuming that there may have been other “undocumented” problems with contraband, as Defendants suggest, Defendants admit that there were no major reported contraband problems. Accordingly, the searches seem to be clearly unconstitutional under established First Circuit precedent.
To be sure, it appears that blanket strip-search policies may be deemed constitutional in this circuit if there are “compelling” institutional concerns. See Roberts, 239 F.3d at 110-11. Defendants make that assertion here, pointing to the following concerns: institutional security issues; the condition of the booking area; the contraband issues; intermingling; overcapacity issues; the multipurpose FCJ facility; the unavailability of alternatives for housing pre-arraignment detainees; and the interplay between section 4 and the lack of local lockups in rural Franklin County. As Plaintiffs point out, however, Defendants “concerns,” in fact, are far weaker than those the First Circuit itself rejected in Roberts. Id. at 112 (finding unconstitutional the stripsearching of all pre-arraignment detainees charged with misdemeanors not associated
12

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 13 of 19
with weapons or contraband, even though detainees were held in a maximum security facility -- with a lengthy, documented history of contraband -- and freely intermingled with the general prison population). Moreover, as Roberts explained, “[a]n indiscriminate strip search policy routinely applied . . . can not be justified simply on the basis of administrative ease in attending to security concerns.” Id. at 113 (citation and internal quotation marks omitted).
It should also be noted that several of Defendants’ concerns have little or no factual support or are simply irrelevant. For example, the so-called “contraband” problems, as indicated, are exceedingly small in number and easily distinguishable. Similarly, although Defendants consistently refer to the booking area as being “extremely tight,” Defendants have not offered evidence of a single incident between 1994, when the booking area was constructed, and 2007, when the FCHOC opened, in which an inmate ever “reach[ed] over to the booking desk and grab[bed] whatever items were placed on the desk.” (Defs.’ Facts ¶ 9.) Thus, it is of no moment that there were occasional instances of pre-arraignment detainees being held in the booking area “overnight.”6 It is also immaterial that section 4 permitted the FCJ to house prearraignment detainees alongside other inmates; as noted, such intermingling concerns, standing alone, have not caused the First Circuit to condone a blanket strip-search policy. See, e.g., Roberts, 239 F.3d at 110-11.
6 In any event, as Plaintiffs point out, on only about one percent of the class period days were there more than five pre-arraignment detainees. (Pls.’ Response ¶ 11.) To be sure, Defendants note that two of the five booking area cells were used to store records. (Defs.’ Facts ¶¶ 7, 8.) But there is no evidence that these records could not have been stored elsewhere. (See Pls.’ Response ¶ 8.)
13

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 14 of 19
Finally, Defendants’ argument that Gilanian v. City of Boston, 431 F. Supp. 2d 172 (D. Mass. 2006), represented a “sharp turn” in this district’s strip-search law is misplaced. First, Defendants’ argument to the contrary, Gilanian explicitly relied on Roberts in describing the framework for analyzing blanket strip-search policies (id. at 176); thus, Defendants’ reference to “Gilanian factors” is puzzling. Second, Gilanian involved the denial of summary judgment to a plaintiff who was strip-searched while being detained on charges of assault with a dangerous weapon, a violent felony. The instant class excludes those charged with violent felonies or any crimes associated with weapons or contraband.
As a result, the first question raised by the parties is easy to answer in the affirmative given the undisputed fact that all pre-arraignment detainees were stripsearched without regard to: where in the facility they would be housed; whether they would come into contact with other inmates; the crimes for which they were being held; or whether they were individually suspected of carrying weapons, drugs, or other contraband. In short, the FCJ strip-searches were unconstitutional when applied to the class. Accordingly, the court turns to the second question addressed by the parties, qualified immunity. B. Whether Defendants are Entitled to Qualified Immunity
The answer to the qualified immunity question also favors Plaintiffs. To set the stage, the court first quotes liberally from District Judge Richard G. Stearns’ opinion in DeToledo v. County of Suffolk, 379 F. Supp. 2d 138 (D. Mass. 2005), itself a stripsearch case:
14

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 15 of 19
Qualified immunity attaches to discretionary conduct of government officials that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he qualified immunity inquiry . . . allows . . . for the inevitable reality that ‘law enforcement officials will in some cases reasonably but mistakenly conclude that [their conduct] is [constitutional], and . . . that . . . those officials like other officials who act in ways they reasonably believe to be lawful -- should not be held personally liable.’” Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st Cir. 1995), quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987). “The qualified immunity standard ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992), quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam).
In deciding whether qualified immunity attaches, “a court must first determine whether the plaintiff has alleged [the] deprivation of an actual constitutional right at all.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). Stated more formally, the “threshold” question is this: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if a violation of a right is found does the court proceed to answer the two remaining questions: was the right clearly established when the plaintiff suffered the constitutional injury; and if so, “whether a reasonable prison official, situated similarly to the defendants, would have understood at the time that the policy in place . . . transgressed the Constitution.”[7] Savard
7 As Judge Stearns pointed out:
“The right in question, . . . cannot be simply a generalized right, like the right to due process. . . . It must be clearly established in a ‘particularized’ sense, so that ‘the contours of the right’ are clear enough for any reasonable official in the defendant's position to know that what
15

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 16 of 19
v. Rhode Island, 338 F.3d 23, 27 (1st Cir. 2003).
DeToledo, 379 F. Supp. 2d at 146-47. To summarize, courts in strip-search cases
follow the familiar three-part qualified immunity inquiry: (1) have the plaintiffs alleged a
deprivation of an actual constitutional right; (2) was the right clearly established when
the plaintiffs suffered the constitutional injury; and (3) if so, would a reasonable prison
official, situated similarly to the defendants, have understood at the time that the policy
in place transgressed the Constitution. Id. at 147 (citing, inter alia, Saucier, 533 U.S. at
210). See also Pearson v. Callahan, 129 S. Ct. 808, 818 (Jan. 21, 2009) (affirming the
“beneficial” and “appropriate” Saucier sequential analysis for most qualified immunity
cases).
Here, Plaintiffs have satisfied the first step in the sequential analysis. Not only
have they alleged but they have shown that Defendants’ blanket strip-search policy at
the FCJ during the class period, implemented without individualized, reasonable
suspicion, was unconstitutional, i.e., it deprived Plaintiffs of their Fourth Amendment
right to be free from unreasonable searches. See also id. (“Courts share the
the official is doing violates that right.” Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989). As a rule, a right is “clearly established” when it is enunciated by a court of controlling authority in the defendant's jurisdiction in a case sufficiently similar in its facts “that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999). See also Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 144-145 (1st Cir. 2001) (relevant state, as well as federal decisions should be considered). While “general statements of the law are not inherently incapable of giving fair and clear warning,” they do so only if their application to a specific set of facts is clear. United States v. Lanier, 520 U.S. 259, 271 (1997).
DeToledo, 379 F. Supp. 2d at 147 n.14. 16

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 17 of 19
consensus view that a strip and visual body cavity search is a severe and degrading intrusion into personal privacy and bodily integrity, and if conducted without some reasonable basis, violates the Fourth Amendment.”) (citing Roberts, 239 F.3d at 110, 113).
Plaintiffs have also satisfied the second question in the sequential analysis, namely, that their rights to be free of a suspicionless strip-search were clearly established on March 28, 2004. See id. In fact, in Ford v. Suffolk County, 154 F. Supp. 2d 131 (D. Mass. 2001), a case challenging a similar strip-search policy, District Judge Nancy Gertner concluded that the right to be free of such searches was clearly established on June 25, 1997, when the First Circuit in Swain held that a strip-search of an arrestee “ordinarily” requires a reasonable suspicion that the arrestee is concealing contraband, weapons, or evidence on her person. See DeToledo, 379 F. Supp. 2d at 147. To be sure, the question of whether “Swain settled the strip search issue in this Circuit with respect to pretrial detainees, as Judge Gertner thought in Ford, [was] thrown into doubt by subsequent First Circuit cases.” Id. at 148. But, for the reasons which follow, that question appears to have been resolved, at least with regard to the instant class.
In DeToledo, upon which Defendants rely, the issue was whether, as of July of 1998, a reasonable corrections officer would have known that conducting a strip search of a nonviolent felony arrestee pursuant to a longstanding institutional policy would violate the Constitution. Id. at 149. Although Judge Stearns observed that a reasonable corrections officer would not then have had such knowledge, he suggested
17

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 18 of 19
that the result would have been different if the defendants were higher-ranking officials responsible for setting policy. See id. at 149 & n.16. Thus, Defendants’ argument to the contrary, DeToledo actually strengthens Plaintiffs’ position here. Since the law was likely clearly established in 1998 with respect to policy-setting officials, Defendants, being the very type officials cited by Judge Stearns, have no grounds upon which to argue that, based on DeToledo, they were qualifiedly immune in 2004, six years later.
Nor can Defendants rely on District Judge George O’Toole’s decision in Doe v. Preston, 472 F. Supp. 2d 16 (D. Mass. 2007), which granted qualified immunity to officials of a juvenile youth facility. That case was admittedly unique; it involved the novel “question of routine, suspiciousless strip searches of juveniles committed to state custody,” for whom the state acts in loco parentis, not the more common strip-searches of adults “recently arrested for relatively minor offenses who are held in temporary detention facilities housing persons unlikely to have any incentive or opportunity to smuggle contraband into the facility, see Roberts, 239 F.3d at 107, and Swain, 117 F.3d 1.” Doe, 472 F. Supp. 2d at 25, 27. Further, the time period at issue in Doe was “late 2002 and the first quarter of 2003,” id. at 25, a full year prior to the beginning of the class period here.
True, in Savard, which was decided on August 4, 2003, the en banc First Circuit, by a split 4-4 vote, allowed certain prison officials to receive qualified immunity for similar blanket strip-searches prior to March 17, 2000 (the last date the policy there was in effect). But even those judges who invoked the immunity clearly stated that such a strip-search policy “is now dead and buried.” Id., 338 F.3d at 33 (emphasis
18

Case 3:07-cv-30049-KPN Document 49 Filed 10/22/2009 Page 19 of 19
added). Accordingly, the measuring date of August 4, 2003, is firmly established for qualified immunity purposes here.
In sum, the court agrees with Plaintiffs that the third question in the sequential analysis has been satisfied, i.e., that any reasonable corrections official similarly situated to Defendants by March 28, 2004, the beginning of the class period here, should have known that a policy of strip-searching all pre-arraignment detainees such as those in the instant class, was unconstitutional. As a result, Defendants are not entitled to qualified immunity.
IV. CONCLUSION This case has brought to light an unfortunate policy at the now-retired FCJ, that of unconstitutionally strip-searching all pre-arraignment detainees charged with minor offenses not involving weapons or contraband between March 28, 2004, and February 25, 2007, a policy for which Defendants are not entitled to qualified immunity. For the reasons stated, Plaintiffs’ motion for summary judgment is ALLOWED and Defendants’ cross-motion for summary judgment is DENIED. The clerk is instructed to set this matter down for a case management conference so as to discuss further proceedings. IT IS SO ORDERED. DATED: October 22, 2009
/s/ Kenneth P. Neiman KENNETH P. NEIMAN U.S. Magistrate Judge
19

 
 Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

GREGORY GARVEY, Sr. on behalf of himself )

and on behalf of others similarly situated,

)

Plaintiffs

)

)

Civil Action No. 07-30049-KPN

v.

)

)

FREDERICK B. MACDONALD and FORBES )

BYRON in their individual capacities,

)

Defendants

)

__________________________________________)

MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION

Plaintiff, Gregory Garvey, seeks to represent a class of approximately 400 people who

were illegally strip searched at the Franklin County Jail and House of Correction (“Jail”). The

proposed class consists of all people strip searched without individualized reasonable suspicion on

or after March 28, 2004, and before February 25, 2007, at the Franklin County Jail

(a) while waiting for bail to be set or for a first court appearance after being arrested

on charges that did not involve a weapon, drugs, contraband or a violent felony, or

(b) while waiting for a first court appearance after being arrested on a default or other

warrant for charges that did not involve a weapon, drugs, contraband or a violent

felony.

The illegal searches were conducted pursuant to a policy or practice of Sheriff Frederick

Macdonald’s that was implemented by Special Sheriff Forbes Byron, the jail superintendent.

Plaintiff moves the Court to certify this case as a class action under Fed. R. Civ. P. 23(b)(3).

I. INTRODUCTION

Plaintiff seeks to represent a class of approximately 400 class members who were injured

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 2 of 14
by the unconstitutional strip searches at the Jail pursuant to a formal written policy established by Sheriff Macdonald, which was implemented by Special Sheriff Byron. On February 25, 2007, the Defendants ended the challenged policy.
Courts in numerous jurisdictions around the country have certified similar class actions because they serve the interests of justice and easily satisfy the requirements of Rule 23.1 In the District of Massachusetts, three very similar class actions have been certified for pre-arraignment detainees who were strip searched at a jail based on a blanket strip search policy like the one at issue in this case: Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000); Connor v. Plymouth County, Civil Action No. 00-10835-RBC (D. Mass.); and Ryan v. Garvey, Civil Action No. 0530017-MAP (D. Mass.). The First Circuit approved class certification in two similar cases in Maine. Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004). If this Court certifies this action, it will preside over a manageable case that – like many such cases before it – will provide a uniform and efficient resolution of the claims arising from Defendants’ strip search practices. II. FACTS
A. The Named Plaintiff Was Strip Searched Pursuant to the Jail’s Policy The named Plaintiff was subjected to Defendants’ uniform strip search policy.2 On Tuesday, January 30, 2007, at approximately 11:00 p.m., Sunderland police officers arrived at Mr. Garvey’s home and placed him under arrest for failure to appear in court earlier that day for a motor vehicle case. Mr. Garvey had not received notice of the court date. After the arrest, the
1 See, e.g., Johnson v. District of Columbia, -- F. Supp. 2d --, 2008 WL 344739, at *2 (D.D.C. 2008) (“Courts routinely certify strip search class actions.”) (collecting cases)
2 Except as noted, the facts in this section are taken from the Complaint.
2

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 3 of 14
police officers took Mr. Garvey to the Sunderland Police Station, where he was fingerprinted and processed. Then Sunderland police officers took him to the Franklin County Jail in Greenfield, Massachusetts, to be held until he could appear in court the next morning. It was the practice of police officers in Sunderland and other police departments in Franklin County to bring prearraignment detainees to the Franklin County Jail to be held before their first court appearance. This practice was mandated by General Order 506, which Sheriff Macdonald issued and Special Sheriff Byron implemented, and which was in effect throughout the proposed class period. Until February 25, 2007, when it was modified, the order mandated that all detainees except those in protective custody were to be strip searched on admission to the Jail and again before leaving the Jail to go to court.3
During the admission procedure at the Franklin County Jail, a correctional officer ordered Mr. Garvey to remove all of his clothing, and he had to submit to a strip search. The next morning, Mr. Garvey was strip searched again before he was allowed to put on his clothing to go to court. There was no reason at any time to suspect that Mr. Garvey had contraband on his body. No contraband was found during either strip search. When Mr. Garvey appeared in court, all of the charges were dropped against Mr. Garvey, and he was informed that he was free to leave.
B. Defendants Had a Policy of Strip Searching Arrestees without Individualized Reasonable Suspicion
General Order 506 of the Office of the Franklin County Sheriff required Franklin County Jail officers to conduct a strip search, without evaluating for individualized reasonable suspicion, of every person both at the time of admission to the Franklin County Jail and before leaving for a
3 See Affidavit of Howard Friedman (“Friedman Aff.”) ¶ 10 & Exhibit A, § .05. 3

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 4 of 14
first court appearance, with the sole exception of those people who were held pursuant to the protective custody statute. The policy applied regardless of the person’s charges or anticipated duration of detention. The policy directed employees of the Sheriff’s Department to conduct illegal strip searches of the Plaintiff and of every member of the Plaintiff class. From March 28, 2004, until February 25, 2007, approximately 400 individuals were strip-searched pursuant to this policy.4
Defendants Macdonald and Byron knew, or should have known, that the policy or practice of conducting strip searches at intake of pre-arraignment prisoners, without individualized reasonable suspicion, violated the United States Constitution. On July 31, 2001, a Massachusetts district court issued a decision granting summary judgment to plaintiffs for a similar policy implemented by the Sheriff of Suffolk County, holding that the law was clearly established in 1997 that routine intake strip searches of pre-arraignment detainees without evaluating for cause were unconstitutional.5 Although Defendants Macdonald and Bryon had an obligation to correct their policy so that it would conform to the Constitution, they allowed it to continue until February 25, 2007.
4 Affidavit of David Milton (“Milton Aff.”) ¶¶ 6-8.
5 Ford v. City of Boston, 154 F.Supp.2d 131, 147 (D.Mass. 2001) (citing Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997)). The First Circuit defines a “strip search” as a visual inspection of an inmate’s naked body and a “visual body cavity search” as a strip search that includes the visual inspection of an inmate’s anal and genital areas. Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir. 1985). Reasonable suspicion is required before a detainee may be subjected to either a strip search or a visual body cavity search. Swain v. Spinney, 117 F.3d 1,7 (1st Cir. 1997). Blanket strip search policies implemented regardless of reasonable suspicion violate the Fourth Amendment. Roberts v. State of Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001). Searches conducted pursuant to Defendants’ policy fall within Blackburn’s definition, lack the reasonable suspicion required by Swain, and violate Roberts. The Jail’s policy was illegal.
4

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 5 of 14
III. ARGUMENT A. STANDARD OF REVIEW The named Plaintiff moves this Court to certify this action as a class action pursuant to
Federal Rules of Civil Procedure 23(a) and (b)(3). Rule 23 provides that any action may be maintained as a class action when it meets the four prerequisite of subsection (a) and fits within any of the classifications set out in subsection (b).
Class certification, like most issues arising under Rule 23, is committed in the first instance to the discretion of the district court.6 The requirements of the rule are to be given “a liberal rather than a restrictive construction, and courts are to adopt a standard of flexibility.”7 In close cases, courts should err in favor of certification.8 “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 are met.”9
B. THIS CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a) The proposed class easily satisfies the four criteria of Rule 23(a). Each of these requirements – numerosity, commonality, typicality, and adequacy of representation – is discussed
6 Califano v. Yamasaki, 442 U.S. 682, 703 (1979); see also Lamphere v. Brown Univ., 553 F.2d 714, 719 (1st Cir. 1977); John Hancock Life Ins. Co. v. Goldman, Sachs & Co., 2004 WL 438790, at *2 (D. Mass. Mar. 9, 2004)
7 In re Eaton Vance Corp. Sec. Litig., 220 F.R.D. 162, 170 (D. Mass. 2004) (citation and quotation marks omittted).
8 Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985); Payne v. Goodyear Tire, Inc., 216 F.R.D. 21, 25 (D. Mass. 2004).
9 Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)); see also In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 6 (1st Cir. 2005)(district court may not inquire whether plaintiffs will prevail on the merits but may “look beyond the pleadings” to determine whether requirements for class certification are met).
5

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 6 of 14
in turn below. 1. The Class Is So Numerous That Joinder of All Members Is Impracticable The proposed class includes approximately 400 class members who have had their rights
violated by Defendants’ strip search policy. Joinder of all these people as individual plaintiffs would be impractical. As a leading treatise on class actions notes, “the difficulty inherent in joining as few as 40 class members should raise a presumption that joinder is impracticable.”10 This is especially true in this case, which alleges a violation of privacy and which arises out of class members’ arrests, since many class members whose constitutional rights were violated might be reluctant to be publicly identified as a plaintiff. The numerosity prerequisite has been satisfied.
2. There Are Questions of Law or Fact Common to the Class Plaintiffs easily clear the “low hurdle” for showing commonality under Rule 23(a), “which requires only a basic demonstration that there are common questions of law or fact in the case.”11 This requirement is met by even a single issue of law or fact common to the putative class.12 Where, as here, the “claims of the proposed class stem from the same alleged unconstitutional conduct of the defendants,”13 commonality is satisfied notwithstanding whatever individualized
10 1 Herbert Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) §3:5 (4th ed. 1992); see also, e.g., In re Relafen Antitrust Litig., 218 F.R.D. 337, 342 (D. Mass. 2003) (“forty individuals generally found to establish numerosity”); Fraser v. Major League Soccer, L.L.C., 180 F.R.D. 178, 180 (D. Mass. 1998) (joinder of approximately 200 individual class members impracticable).
11 Southern States Police Benevolent Assoc., Inc. v. First Choice Armor & Equip., Inc., 241 F.R.D. 85, 87 (D. Mass. 2007).
12 Yaffee v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (denial of class certification appropriate only if “there are no questions of law or of fact common to the class) (emphasis added); see also, e.g., Southern States, 241 F.R.D. at 87; Swack v. Credit Suisse First Boston, 230 F.R.D. 250, 259 (D. Mass. 2005).
13 Daniels v. City of New York, 198 F.R.D. 409, 417 (S.D.N.Y. 2001); see also, e.g., Mack v. Suffolk County, 191 F.R.D. 16, 23 (D. Mass. 2000).
6

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 7 of 14
variations may exist among the claims of class members.14
In this case, the most salient common issue raised by Plaintiff and all class members is that
the searches to which they were subjected violated the Constitution because they were not based
on reasonable suspicion, but were instead conducted pursuant to a blanket strip search policy. In
certifying strip search class actions, courts have routinely found commonality satisfied where, as
in this case, the searches were conducted (or alleged to be conducted) pursuant to a uniform strip search policy or custom.15
3. The Claims of the Representative Party Are Typical of Those of the Class
A class representative’s claims are “typical” when “named plaintiffs’ claims arise from the same course of conduct that gave rise to the claims of the absent [class] members.”16 The named
Plaintiff’s claims here arise from the same policy as the claims of the unnamed Plaintiffs. Pursuant
to Defendants’ uniform policy, Plaintiff and all class members were subjected to strip searches
14 See Mack,191 F.R.D. at 23; Risinger ex rel. Risinger v. Concannon, 201 F.R.D. 16, 19 (D. Me. 2001) (“[V]arying fact patterns may underlie individual claims as long as a common pattern of unlawful conduct by the defendant is directed at class members.”) (citations and quotation marks omitted); see also Newberg § 3.10 (“When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.”).
15 See, e.g., Mack, 191 F.R.D. at 23 (“[Class representatives and class members] share a common legal theory, that these searches were unconstitutional because, conducted pursuant to a blanket strip-search policy, they were not based on a reasonable suspicion that the individuals searched were concealing weapons or contraband.”); Engeseth v. County of Isanti, Minn., 2007 WL 3102074, at *7 (D. Minn. Oct. 23, 2007); Bildhove v. St. Croix County, Wis., 219 F.R.D. 607, 617 (W.D. Wis. 2003).
16 In re Relafen Sec. Litig., 218 F.R.D. at 343 (citations and quotation marks omitted; alteration in original); see also Curtis v. Comm’r Maine Dep’t of Human Servs., 159 F.R.D. at 341 (typicality met where named plaintiff “subject to the same statute and policy as the class members”); see also Newberg § 3:13 (“[A] plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.”).
7

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 8 of 14
without individualized reasonable suspicion. There was nothing atypical about the circumstances of Mr. Garvey’s search, and there is nothing atypical about Mr. Garvey’s legal claims. In any event, it is well established that any factual differences that exist among the claims “will not preclude class certification when the claims arise from the same course of conduct and give rise to the same legal or remedial theories.”17
4. The Representative Party Will Fairly and Adequately Protect the Interests of the Class
Rule 23(a)(4) requires that the named plaintiffs will “fairly and adequately protect the interests of the class.” Specifically, the named plaintiff must show that “there exists no conflict between the interests of the Named Plaintiffs and the class members.”18 Only a “fundamental” conflict will defeat adequacy under the rule.19
Here, there is little if any potential for conflict, given that the claims of the named Plaintiff and those of absent class members “state common injuries and legal theories.”20 Because all class members were strip searched pursuant to the same policy as the named Plaintiff, all will benefit from a showing that such policy was unconstitutional.21
17 Engeseth, 2007 WL 3102074, at *7; see also, e.g, Baby Neal for and by Kantor v. Casey, 43 F.3d 48,
58 (3d Cir. 1994) (“[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims.”) (citing Newberg § 3:13); Payne, 216 F.R.D. at 26 (quoting 5 Moore's Federal Practice § 23.24[4]).
18 Southern States, 241 F.R.D. at 88. 19 In re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001) (citing Newberg §3.26). 20 Mack, 191 F.R.D. at 23. 21 See Hirschfeld v. Stone, 193 F.R.D. 175, 183 (S.D.N.Y. 2000) (“The interests of the named plaintiffs appear to be identical to those of the class because all are subject to the same allegedly unconstitutional actions by defendants. If the named plaintiffs prevail, all class members will benefit.”).
8

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 9 of 14
5. Attorneys for the Named Plaintiff Will Fairly and Adequately Protect the Interests of the Class
When certifying a class, the court must appoint class counsel who will fairly and adequately represent the class’s interests.22 In making such an appointment, the court must consider counsel’s work in identifying or investigating potential claims; counsel’s experience in handling class actions, complex litigation, and claims similar to those asserted in the action; counsel’s knowledge of the applicable law; the resources counsel will commit to representing the class; and any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.23
Plaintiffs’ counsel, the Law Offices of Howard Friedman, P.C., easily meet this standard. As the attached affidavits show, the firm’s attorneys bring a wealth of relevant experience to this litigation and are well-acquainted with complex federal litigation. Attorney Friedman has extensive experience in §1983 litigation in state and federal courts and has successfully represented plaintiffs in other class action suits, including four that, like this case, alleged an unconstitutional policy or custom of strip searching pre-arraignment detainees.24 Attorney David Milton, an associate at the firm, also has significant experience bringing civil rights cases under §1983 on both an individual and class-wide basis.25 The firm has identified and investigated the
22 Fed. R. Civ. P. 23(g)(1)(A)-(B). 23 Fed. R. Civ. P. 23(g)(1)(C)(i)-(ii).
24 Friedman Aff. ¶¶ 3-4. 25 Milton Aff. ¶¶ 4-5.
9

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 10 of 14
claim and is willing to commit the resources necessary to take this case to trial.26 No other applicant seeks appointment as class counsel.27 C. THIS CLASS ACTION IS PROPERLY MAINTAINABLE UNDER RULE 23(b)(3)
OF THE FEDERAL RULES OF CIVIL PROCEDURE “Certification pursuant to Rule 23(b)(3) is ‘intended to be a less stringent requirement’ than certification pursuant to either Rule 23(b)(1) or (b)(2).”28 A Rule 23(b)(3) class is appropriate where the court finds that common questions of law or fact predominate over individual ones and that a class action is superior to other methods of adjudicating the controversy.29 Both of these prongs are met in this case. 1. Common Legal and Factual Questions Predominate A finding of predominance is warranted where “common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.”30 Predominance does not require uniformity among the claims of class members, but merely “a sufficient constellation of common issues [that] binds class members together.”31 In light of this standard, courts have routinely certified (b)(3) classes in civil rights cases on behalf of detainees
26 Friedman Aff. ¶ 12. 27 Friedman Aff. ¶ 13.
28 Southern States, 241 F.R.D. at 88-89 (citing Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 41 (1st Cir. 2003)).
29 Fed. R. Civ. P. 23(b)(3); see Tardiff, 365 F.3d at 4. 30 Thomas v. Baca, 231 F.R.D. 397, 402 (C. D. Cal. 2005) (citing Wright, Miller & Kane, 7AA Federal Practice & Procedure § 1778). 31 Southern States, 241 F.R.D. at 89 (citing Mowbray, 208 F.3d at 296); accord, Smilow, 323 F.3d at 39 (“After all, Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.”).
10

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 11 of 14
and prisoners asserting a common legal grievance based on the same strip search policy or practice.32
Defendants may note that damages could vary from individual to individual, but the First
Circuit has rejected this argument. In affirming class certification decisions in two cases alleging
unlawful strip searches of detainees in Maine, the Court held that where common questions
regarding liability predominate, the existence of individualized damages issues does not defeat class certification.33 Further, as the First Circuit has explained, district courts have a number of procedural devices for dealing with individualized damages issues that may arise.34
In Mack, the plaintiffs were, as here, all arrestees subjected to strip searches without
individualized reasonable suspicion. The court held that “given the uniform and indiscriminate
nature of the strip search policy . . . liability can be determined on a class-wide, rather than individual basis.”35 After the case was certified, summary judgment established the defendants’
32 See, e.g., Tardiff, 365 F.3d at 6 (affirming certification of two class actions where class members were all subject to the same strip search policy); In re Nassau County Strip Search Cases, 461 F.3d 219, 230-31 (2d Cir. 2006) (reversing denial of certification of class action arising out of blanket strip search policy); Mack, 191 F.R.D. at 24 (certifying class of women detainees subjected to same strip search policy); Johnson, 2008 WL 344739, at *2 (certifying class of arrestees subject to blanket strip search policy); see also Dodge v. County of Orange, 226 F.R.D. 177, 182 (S.D.N.Y. 2005) (“In similar circumstances involving facility-wide strip search policies, courts have not hesitated to certify classes.”)(collecting cases).
33 Tardiff, 365 F.3d at 6; see also Smilow, 323 F.3d at 40 (collecting cases and other authorities); Mack, 191 F.R.D. at 25 (despite the possibility of individualized damages, class certification was appropriate because the plaintiffs, who were subjected to the same strip search policy, shared sufficient common legal claims)
34 See Tardiff, 365 F.3d at 6; Smilow, 323 F.3d at 40; see also In re Visa Check/Master Money Antitrust Litig., 280 F.3d at 141 (district court may, inter alia, bifurcate liability and damages trials, appoint magistrate judge or special master to oversee damages determinations, create subclasses or alter class definition, or enter judgment on liability only), cited in Smilow, 323 F.3d at 40.
35 Mack, 191 F.R.D. at 25.
11

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 12 of 14
liability to all class members; the issue of damages was resolved by settlement.36 As in Mack, all proposed class members here have been subjected to an unconstitutional
strip search. The injuries to all class members arise out of a single course of conduct. All class members share a single legal theory arising under similar factual circumstances. Because common factual and legal issues far outweigh the individual issues in this case, this court should grant certification under Rule 23(b)(3).
2. Class Action Is Superior to Other Methods of Adjudication Rule 23(b)(3) also requires that the court determine that a class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” The rule lists four nonexclusive factors for courts to consider, each of which, as discussed below, supports certification. The first factor – the interest of members of the class in individually controlling the prosecution of separate actions – weighs in favor of class certification. This case presents a classic example of one where few class members are likely to bring individual lawsuits in light of the relatively small amount of damages that one would likely recover.37 If class certification is denied, then the constitutional harm suffered by hundreds of individuals will go unredressed. The second and third factors also support certification. Plaintiffs’ counsel is unaware of
36 The undersigned represented the plaintiff and plaintiff class in Mack.
37 See Tardiff, 365 F.3d at 7 (finding superiority because “[t] vast majority of claims would never be brought because provable actual damages are too small”); Smilow, 323 F.3d at 41 (noting that “policy goals underlying Rule 23(b)(3)” support certification as a means of vindicating rights of “groups of people whose individual claims would be too small to warrant litigation”); see also In Nassau County Strip Search Cases, 461 F.3d 230 (“[W]ithout class notification, most putative class members will not even know that they suffered a violation of their constitutional rights.”).
12

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 13 of 14
any litigation already commenced (or even contemplated) by members of the class, and this forum, where class members were all housed and where the majority of the class members presumably reside, is the most appropriate.
Finally, no great difficulties will arise in managing this case as a class action. The identity of every class member is known to the Defendants, who also possess a last-known address for all class members. Class membership can be determined from Defendants’ computerized booking records.38 V. CONCLUSION
Plaintiffs have met all of the requirements of Federal Rule of Civil Procedure 23 for certification of the class. Plaintiffs therefore respectfully request that this Court certify the Plaintiff class as described in their motion for Class Certification.
RESPECTFULLY SUBMITTED, /s/ Howard Friedman
Howard Friedman, BBO #180080 David Milton, BBO #668908 Law Offices of Howard Friedman P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 T (617) 742-4100 F (617) 742-5858 hfriedman@civil-rights-law.com dmilton@civil-rights-law.com
Date: March 14, 2008
38 In any event, “failure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.” Newberg §4.25. As discussed above, the court has a number of procedural options, such as limiting certification to liability or establishing sub-classes, should issues of manageability later arise.
13

Case 3:07-cv-30049-KPN Document 21 Filed 03/14/08 Page 14 of 14

CERTIFICATE OF SERVICE
I certify that on this day I caused a true copy of the above document to be served upon the attorney of record for all parties via ECF.

Date: 3/14/08

/s/ Howard Friedman Howard Friedman

14

 
 Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

GREGORY GARVEY, Sr. on behalf of himself )

and on behalf of others similarly situated,

) Civil Action No. 07-30049-KPN

Plaintiffs

)

)

v.

)

FREDERICK B. MACDONALD and FORBES ) PLAINTIFFS’ MEMORANDUM

BYRON in their individual capacities,

) IN SUPPORT OF

Defendants

) SUMMARY JUDGMENT

__________________________________________)

INTRODUCTION

Plaintiff Gregory Garvey and the plaintiff class submit this memorandum in support of

their motion for summary judgment. This is a civil rights class action for Fourth Amendment

violations under 42 U.S.C. § 1983 against Franklin County Sheriff Frederick Macdonald and

Special Sheriff Forbes Bryon. Plaintiffs seek money damages. Plaintiffs challenge defendants’

policy of requiring employees under their supervision to strip search all prearraignment detainees

at the Franklin County Jail without individualized reasonable suspicion. This policy, which was

in place throughout the class period (March 28, 2004 to February 24, 2007, inclusive), affected

hundreds of individuals and violated clearly established law. Defendants admit that they

maintained the blanket strip-search policy and that employees followed the policy. Because

neither these nor any other material facts are in dispute, summary judgment is appropriate.

STATEMENT OF FACTS

At approximately 11:00 pm on January 30, 2007, Sunderland police officers came to

Plaintiff Gregory Garvey’s home and arrested him on a default warrant for failure to appear in

court on the charge of operating on a suspended driver’s license. Plaintiffs’ Local Rule 56.1

Statement (“Pl. 56.1 Statement”) ¶ 25. Mr. Garvey had not received notice of the court date. Id.

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 2 of 10
¶ 24. Sunderland police officers took him to the Franklin County Jail and House of Correction (“Franklin County Jail”) in Greenfield, Massachusetts, to be held until he could appear in court the next morning. Id. ¶ 26. Police officers in Sunderland and other police departments in Franklin County regularly brought arrestees and individuals arrested on default or other warrants (collectively, “prearraignment detainees”) to the Franklin County Jail to be held before their first court appearance. Id. ¶ 5. The facility housed prearraignment detainees, detainees being held pending trial (“pretrial detainees”), and prisoners serving committed sentences. Id. ¶ 6.
When Mr. Garvey arrived at the Franklin County Jail, a correctional officer placed him in a cell by himself in the booking area. Id. ¶ 26. Next, a uniformed correctional officer entered the cell and ordered Mr. Garvey to take off all of his clothes. Id. ¶ 27. When Mr. Garvey was completely naked, the corrections officer said, “We have to watch you do it. Bend over. Spread your cheeks.” Id. Garvey did as he was told. Id. The officer looked at his naked body, including his genitals. Id. There was no reason for the officer to believe Mr. Garvey had hidden contraband, and none was found during the strip search. Id. ¶ 33.
After the strip search, the officer ordered Mr. Garvey to dress in a jail jump suit. Id. ¶ 28. After Mr. Garvey did so, he was ordered to leave the cell for booking. Id. ¶ 29. The booking officer asked him questions and took his photograph. Id. After the booking process, an officer put him back in the same cell in the booking area. Id. Mr. Garvey remained in that cell by himself until morning. Id. Jail records show that Garvey was booked into the jail at 1:19 a.m. on January 31, 2007. Id. ¶ 30. At approximately seven o’clock in the morning, a uniformed corrections officer came into Mr. Garvey’s cell. Id. ¶ 31. He ordered Mr. Garvey to remove the jail uniform and his underwear. Id. Once again when Mr. Garvey was completely naked, the officer ordered
2

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 3 of 10
him to bend over and spread his buttocks. Id. The officer looked at his naked body, including his genitals. Id. There was no reason for the officer to believe Mr. Garvey had hidden contraband, and none was found during the strip search. Id. ¶ 33. After the strip search, Mr. Garvey was allowed to put on his clothing. Id. ¶ 31. Afterwards Mr. Garvey was chained to other prisoners and taken to Greenfield District Court. Id. ¶ 32. This was the first time he had come in contact with any other prisoners. Id. When Garvey appeared in court, the judge dismissed the charges against him. Id. ¶ 34. He was released from custody and allowed to go home. Id.
Mr. Garvey’s experience was typical of other prearraignment detainees at the Franklin County Jail during the class period. Id. ¶ 35. Defendants’ policy and practice required that correctional officers strip-search all prearraignment detainees1 both at the time of admission to the jail and before leaving for a first court appearance, with the sole exception of those people who were held in protective custody. Id. ¶ 4. The strip-search upon admission was conducted before the detainee went through the booking process. Id. ¶ 10. All prearraignment detainees were strip-searched without regard to the crimes for which they were being held, and without regard to whether the searching officer suspected that the particular individual being searched was carrying weapons, drugs, or other contraband. Id. ¶ 13. All detainees were strip-searched without regard to where in the facility they would be housed, and without regard to whether they would come into contact with other inmates. Id. ¶ 14. The manner in which Mr. Garvey was strip-searched was also consistent with jail policy and procedure, and typical of the manner in
1 The memo uses the term “prearraignment detainees” to refer to individuals detained while waiting for bail to be set or for a first court appearance after being arrested, or while waiting for a first court appearance after being arrested on a default or other warrant.
3

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 4 of 10
which other detainees were strip searched. Id. ¶ 11.2 Approximately 927 people were held as prearraignment detainees during the class period.
Id. ¶ 15. In only one instance during the class period were drugs found as a result of a strip search; that individual had been brought in for possession of drugs with intent to distribute and is not part of the class in this case. Id. ¶ 17. In another instance a strip-search revealed that an individual had pierced nipples with rings fused together (such that they could not be removed by hand). Id. In no other instance during the class period was a strip-search necessary to reveal drugs or contraband. Id. ¶ 18. In only three instances (besides the two described above) was contraband found on a prearraignment detainee during the booking process at the Franklin County Jail. Id. In each of these three cases, however, drugs were found in the individual’s clothing or backpack, and thus could have been found without subjecting the individuals to a strip-search. Id.
Defendant Sheriff Frederick Macdonald has been the Franklin County sheriff since 1993. Id. ¶ 1. As the top official in the Franklin County Sheriff’s Office, he has statutory control and responsibility, and is the final policymaker, for the Franklin County Jail. Id. He is responsible for ensuring that the policies of the Jail comply with the Constitution. Id. Since 1997, Defendant Special Sheriff Forbes Byron has been Superintendent of the Jail. Id. ¶ 2. He is the chief administrative officer of the Sheriff’s Office, and is in charge of operations at the Jail. Id. Sheriff Macdonald issued and Superintendent Byron implemented General Order 506, which contained the written strip-search policy that was in place throughout the class period. Id. ¶ 3.
2 One officer described his standard instructions to the naked prisoner as follows: “Put your hands up, open your fingers, open your mouth, lift up your tongue, show me behind your ears, lift up your genitals, turn around, show me the bottoms of each foot, and spread your buttocks with your hands.” Id. (citing
Deposition of Peter Dionne at 8). Other officers’ descriptions are similar. Milton Decl. ¶ 11. 4

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 5 of 10
Superintendent Byron reviewed and supported the policy before it took effect. Id. On April 15, 2008, this Court certified the following class under Rule 23(b)(3) of the
Federal Rules of Civil Procedure: All people strip searched without individualized reasonable suspicion on or after March 28, 2004, and before February 25, 2007, at the Franklin County Jail (a) while waiting for bail to be set or for a first court appearance after being arrested on charges that did not involve a weapon, drugs, contraband or a violent felony, or (b) while waiting for a first court appearance after being arrested on a default or other warrant for charges that did not involve a weapon, drugs, contraband or a violent felony. The class consists of approximately 500 people. Milton Decl. ¶¶ 7-8.
ARGUMENT I. STANDARD OF REVIEW
A district court should enter summary judgment if, viewing the record in the light most favorable to the nonmoving party, “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Mariasch v. Gillette Co., 521 F.3d 68, 71 (1st Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). “Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show that a factual dispute does exist, but summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations, or rank speculation.” Id. (quoting Ingram v. Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)). II. DEFENDANTS’ UNIFORM POLICY VIOLATED CLEAR FIRST CIRCUIT
PRECEDENT REQUIRING REASONABLE SUSPICION BEFORE STRIPSEARCHING PREARRAIGNMENT DETAINEES Well before the beginning of the class period, the law in the First Circuit clearly
5

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 6 of 10
established that a prearraignment detainee may not be subjected to a strip search absent
reasonable suspicion that he or she is concealing contraband or weapons. Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001). A blanket strip-search policy of all pre-arraignment
detainees cannot be justified by mere invocation of security considerations or simply because
pre-arraignment detainees are housed in the general population. Id. at 113. Since it is undisputed
that defendants maintained and enforced a blanket strip-search policy throughout the class period, summary judgment is appropriate.3
“[P]retrial detainees retain constitutional rights despite their incarceration, including basic
Fourth Amendment rights against unreasonable searches and seizures.” Roberts, 239 F.3d at 109. The Fourth Amendment applies to strip searches and visual body cavity searches4 of pretrial detainees. Id.; Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997). Determining whether a particular
search is constitutional “requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails.” Swain, 117 F.3d at 6 (quoting Bell v. Wolfish,
441 U.S. 520, 559 (1979)).
3 As sheriff throughout the class period, Defendant Macdonald had final policy making authority for establishing the strip search policies in question, and thus “clearly bears responsibility” for them. Ford v. City of Boston, 154 F.Supp.2d 131, 146 (D. Mass. 2001). Defendant Byron likewise is liable for the policies, which he knew about, supported, and implemented, and for which he admits responsibility, as chief administrative officer of the Jail. Pl. 56.1 Statement ¶ 2-3. See Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999) (supervisory liability appropriate where defendant was “primary actor involved in, or a prime mover behind, the underlying violation” such that there is “an affirmative link, whether through direct participation or through conduct that amounts to condonation or tacit authorization”).
4 The First Circuit defines a “strip search” as a visual inspection of an inmate’s naked body, and a “visual body cavity search” as a strip search that includes the visual inspection of an inmate’s anal and genital areas. Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir. 1985). As described below, the searches at Franklin County were visual body cavity searches. Because both strip searches and visual body cavity searches require reasonable suspicion, Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997), for ease of reference this memo uses the “strip-search” generically to refer to both.
6

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 7 of 10
Applying this balancing test, the First Circuit has recognized that strip and visual body cavity searches impinge seriously upon the values that the Fourth Amendment was meant to protect. These searches require an arrestee not only to strip naked in front of a stranger, but also to expose the most private areas of her body to others. This is often, as here, done while the person arrested is required to assume degrading and humiliating positions. Our circuit has recognize[d], as have all courts that have considered the issue, the severe if not gross interference with a person's privacy that occurs when guards conduct a visual inspection of body cavities.
Swain, 117 F.3d at 6 (citation and internal quotation marks omitted); accord Roberts, 239 F.3d at 110 (“[W]e consider [visual body cavity] searches an extreme intrusion on personal privacy and an offense to the dignity of the individual.”)(citation and internal quotation marks omitted).
Against this “extreme intrusion on personal privacy” the court must weigh the justification for the search. Roberts, 239 F.3d at 110-11. In this case, Franklin County Jail officials, following the directives of the defendants, did not conduct an evaluation to determine whether individualized reasonable suspicion existed before the officials strip-searched every prearraignment detainee as a matter of routine policy before the detainee was booked into the jail. Sheriff’s department employees strip searched class members without regard to whether there was any cause to believe the person was carrying weapons, drugs, or other contraband.5 Thus, the only possible justification for subjecting all class members to a strip and visual body cavity search would be a finding that institutional security concerns outweighed every individual’s rights to dignity and privacy. Roberts, 239 F.3d at 110-11; Tardiff v. Knox County, 573 F. Supp.
5 Individuals who were arrested for crimes involving a weapon, drugs, contraband or a violent felony are not part of the class. Although these individuals were not in fact strip-searched because of the nature of their charges, they could have been lawfully strip-searched for this reason, and thus have been excluded from the class. See Roberts, 239 F.3d at 112 (“The reasonable suspicion standard may be met simply by the fact that the inmate was charged with a violent felony.”).
7

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 8 of 10
2d 301, 305 (D. Me. 2008); Ford, 154 F. Supp. 2d at 142. Nothing in the record supports such a finding. On the contrary, courts, including the First Circuit in Roberts, have rejected the very security rationales that Defendants here are likely to advance. Roberts, 239 F.3d at 111-13; Tardiff, 573 F.Supp. 2d at 307; Ford, 154 F. Supp. 2d at 142-44.
In Roberts, the Court held that the Rhode Island Department of Correction’s policy of strip-searching all pretrial detainees at the Adult Correctional Institute (“ACI”) was unconstitutional. The Court did so even though Rhode Island did not have separate facilities to house pretrial detainees, who were held in the ACI along with prisoners serving committed state sentences. Roberts, 239 F.3d at 109, 113. That the ACI intake area was “considered a maximum security prison,” id. at 109, did not justify the blanket search policy, nor did the fact that detainees intermingled with the general prison population, id. at 112-13. Nor did the “lengthy history of contraband problems” at the ACI save the blanket policy from being held unconstitutional. Id. at 112. The record in Roberts revealed that in virtually all instances where contraband was found on an incoming inmate, a strip-search was unnecessary to discover the contraband, which was retrieved from the detainees’ clothes or effects. Id. The same is true here, as is discussed below.
Roberts dictates the outcome in this case. The fact that prearraignment detainees were housed in the same building as inmates being held pending trial and serving sentences does not justify defendants’ blanket strip-search policy, nor does the fact that on occasion some prearraignment detainees may have been housed in general population. In Roberts, even routine intermingling did not justify strip-searching everyone. Roberts, 239 F.3d at 112-13; see also Ford, 154 F. Supp. 2d at 140.
8

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 9 of 10
Moreover, while defendants may invoke a “history of contraband problems” in support of the policy, scrutiny of the record belies any claim that strip-searching all detainees was necessary to combat these supposed problems. In response to discovery requests seeking information on all contraband or weapons found “as a result of strip searches” of detainees during the class period, defendants produced only seven reports from this nearly three-year period during which there were approximately 927 prearraignment intakes. Of the seven incidents, a strip-search was necessary to reveal the contraband in only one – a strip-search during which drugs fell from the detainee’s buttocks. However, that detainee was being held on a drug distribution charge and could have been lawfully strip searched because the offense supplied the needed individualized suspicion. He is therefore not a class member.
All but one of the remaining six reports of contraband either did not involve prearraignment detainees or strip-searches, or involved drugs found in the individual’s clothing or personal property.6 “The lack of specific instances where a body cavity search was necessary to discover contraband supports a finding that the policy of searching all inmates is an unreasonable one.” Roberts, 239 F.3d at 112; see also Tardiff, 573 F. Supp. 2d at 307 n.7 (incidents where contraband found during cell shakedowns or in inmates’ clothing “are irrelevant to the question of whether a strip and visual body cavity search was necessary”). The lack of contraband found concealed on or in the naked bodies of prearraignment detainees is not surprising, “given the essentially unplanned nature of an arrest and subsequent incarceration.” Roberts, 239 F.3d at 111; see also Ford, 154 F.Supp.2d at 142 (“It defies belief to suppose that
6 The only other report of “contraband” involved an individual who had permanently attached nipple rings, which presumably could have been detected by a far less invasive pat-search.
9

Case 3:07-cv-30049-KPN Document 32 Filed 11/17/08 Page 10 of 10

any of the plaintiffs deliberately sought arrest in order to smuggle contraband or weapons into the

Jail.”).

In short, and as a matter of law, Defendants’ institutional concerns do not justify the

“severe if not gross interference with a person’s privacy” that their policy of strip-searching all

prearraignment detainees entailed. Roberts, 239 F.3d at 110. “[A]n indiscriminate strip search

policy routinely applied ... can not be justified simply on the basis of administrative ease in

attending to security considerations.” Id. at 113. Accordingly, summary judgment on liability is

appropriate.

CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs’ motion for summary

judgment.

RESPECTFULLY SUBMITTED,

/s/ Howard Friedman Howard Friedman, BBO #180080 David Milton, BBO #668908 Law Offices of Howard Friedman P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 T (617) 742-4100 F (617) 742-5858 hfriedman@civil-rights-law.com dmilton@civil-rights-law.com

Date: November 17, 2008

CERTIFICATE OF SERVICE

I certify that on this day I caused a true copy of the above document to be served upon the attorney of record for all parties via ECF.

Date: 11/17/08

/s/ Howard Friedman Howard Friedman

10

 
 Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

GREGORY GARVEY, SR., on behalf of himself )

and on behalf of others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

)

FREDERICK B. MACDONALD and

)

FORBES BYRON, in their individual capacities, )

)

Defendants.

)

____________________________________________ )

Civil Action No. 07-30049

MEMORANDUM IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

NOW COME the Defendants, Frederick B. Macdonald and Forbes Byron, and submit

their Memorandum in Support of Defendants’ Cross-Motion for Summary Judgment and

Opposition to Plaintiff’s Motion for Summary Judgment.

PRELIMINARY STATEMENT

Defendants are seeking Summary Judgment to enter in their favor pursuant to

Fed.R.Civ.P. 56, and request that the Plaintiff’s Motion for Summary Judgment be

denied. Defendants claim that the archaic conditions in existence at the Franklin County

Jail (“Jail”) during the class action period, including its layout and age along with other

factors, made it legal to strip-search class members, and argue:

1. The strip search policy was reasonable under Bell v. Wolfish and its

1

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 2 of 27
progeny. 2. The factors enunciated in Gilanian v. City of Boston provide a compelling
reason for a blanket strip search policy. 3. The absolute defense of qualified immunity bars an action against the
Defendants due to the archaic nature of the Franklin County Jail. The Plaintiff claims that the Defendants’ blanket strip search policy at the Jail from
March 28, 2004, through February 24, 2007, which was changed to a “reasonable suspicion” standard when the new Franklin County House of Corrections (“HOC”) opened, violates the Fourth Amendment. The Defendants argue that the archaic nature of the Jail, which was built in 1886 and was replaced by the HOC in 2007, presented unusual institutional security issues and facilitated the entry of contraband into the facility, and therefore the policy of strip searching all pre-arraignment detainees upon admission was necessary and constitutionally permissible. These unique security concerns at the old Jail created a compelling reason for the adoption of a policy which allowed for strip searches without the need for reasonable suspicion.
FACTS The Franklin County Jail was built in 1866. Defendants’ Local Rule 56.1 Statement (“Defendants’ Statement”), ¶ 1. It was originally built to house 66 prisoners but, together with a modular addition, eventually housed up to 188. Id., ¶ 1. The Jail was built in the older “linear” style (cells lining corridors offering only indirect surveillance); the new HOC was built in the modern “pod” style (two tiers of cells positioned within the perimeter of a
2

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 3 of 27
common dayroom, which allows direct supervision of all cells). Id., ¶ 5. The cells in the Jail were 48 square feet, compared to 80 square feet at the new HOC. Id., ¶ 6. The Jail was used by most of the police departments in Franklin County to hold pre-arraignment detainees pursuant to G.L. c. 126, s. 4, as most local police departments in this rural county had no specific facilities for holding these individuals. Id., ¶ 13. The Jail held a wide variety of prisoners, including those who were already sentenced (including convicted felons), federal prisoners, those awaiting trial, pre-arraignment detainees, and those held in protective custody. Id., ¶ 4. The Jail also served as a house of correction, and thus housed convicted felons serving their sentences. Id., ¶ 4. As a result of institutional security issues caused by the archaic nature of the Jail, the sheriff adopted a blanket strip search policy for all prearraignment detainees. Id., ¶ 14. The policy was intended to protect the safety of both the inmates and the correctional officers. Id., ¶ 14. The strip search policy was changed to a “reasonable suspicion” standard when the new HOC opened, as the new facility solved the institutional security issues that existed at the old Jail. Id., ¶ 20.
In 1999, the policy was changed from a blanket strip search policy to a “reasonable suspicion” standard. Id., ¶ 15. The policy was changed after the sheriff attended a monthly Massachusetts sheriffs’ meeting, and the concern regarding the policy was due to general strip search issues, and not due to any constitutional issues. Id., ¶ 15. Several individuals, including Superintendent Byron and a transportation officer, protested to the sheriff that the new policy was compromising institutional security. Id., ¶ 16. The policy was then changed back to a blanket strip search policy. Id., ¶ 17.
3

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 4 of 27
There were institutional security concerns due to the Jail’s design, its age, and its lack of space. Id., ¶ 14. Three small cells were used to handle pre-arraignment detainees within a crowded “booking area” or “intake area,” which consisted of a desk area and a computer located within a few feet of the cells. Id., ¶ 7. All cells in the Jail had bars, instead of metal doors with windows as in the new facility, and as a result, prisoners could reach out from the cells, leading to security and contraband problems. Id., ¶ 6. There was the potential for prearraignment detainee contact with the general prison population if space was not available in the holding cells. Id., ¶ 9, 23. Contraband could easily be passed around by inmates. Id., ¶ 6. Although the record does not indicate a major contraband problem, there are some documented instances of contraband being confiscated from pre-arraignment detainees during the class period. Id., ¶ 24-28. In addition, contraband confiscated from detainees was not always documented or reported by correctional officers as required by policy. Id., ¶ 2527.
STRIP SEARCH FACTORS The Defendants state that the following factors required the imposition of a blanket strip search policy for all pre-arraignment detainees at the Jail during the class period:
Institutional Security Issues The Jail was built in 1886. As a result, it was not comparable to a modern facility. The Jail was built in the older “linear” style (cells lining corridors offering only indirect surveillance); the new HOC was built in the modern “pod” style (two tiers of cells positioned within the perimeter of a common dayroom, which allows direct supervision of
4

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 5 of 27
all cells). The archaic condition of the Jail resulted in various security and contraband issues. The linear style of the jail also created security issues for both inmates and Jail personnel.
Booking Area The Jail did not have cells designed specifically for pre-arraignment detainees. After Sheriff Macdonald took office, a booking area was constructed in the Jail in order to hold people who had been arrested by the local police departments and brought to the Jail. The space in the booking area was extremely tight, as someone in a jail cell could reach over to the booking desk and grab whatever items were placed on the desk.
Contraband A review of the files of the approximately 900 pre-arraignment detainees that were brought into the Jail during the class period shows five instances of contraband being found on pre-arraignment detainees during strip searches. Although when contraband was found it was to be reported to the shift commander, in practice contraband was not always reported. Therefore, the contraband problem was larger than indicated by the reports.
Intermingling Pre-arraignment detainees would be kept overnight at the Jail, and there was a potential for pre-arraignment detainee contact with the general Jail population. Once a pre-arraignment detainee was booked, he or she would be placed into one of the three cells in the booking area until being taken upstairs to the jail block, to be housed with the
5

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 6 of 27
general population. The three cells in the booking area were used for housing prearraignment detainees overnight when there were no empty cells in the main block; otherwise, they would be kept open for new intakes. It was therefore impossible to separate the pre-arraignment detainees from the other inmates.
Overcapacity The Jail was built in 1866. It was originally built to house 66 prisoners but, together with a modular addition that was built to house approximately 60, the Jail eventually housed up to 188. As a result, the Jail was well over design capacity. The design capacity for the new HOC is 288. The cells in the Jail were 48 square feet, compared to 80 square feet at the new HOC.
Multipurpose Jail The Jail served as a multipurpose facility, in that it housed a wide variety of individuals, from those held in protective custody to felons serving their sentences, and also held both male and female inmates. Multipurpose facilities are more volatile than are regular county jails.
Unavailability of Alternatives The three cells in the booking area were only used for housing pre-arraignment detainees overnight when there were no empty cells in the main block; otherwise, they would be kept open for new intakes. Due to space limitations in the Jail, there was no place to keep the records other than in one of the jail cells next to the records office. As a result, these cells could not be used for pre-arraignment detainees. Pre-arraignment
6

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 7 of 27
detainees could not be housed in the DDU (disciplinary unit) either, since the two cells were frequently occupied.
G.L. c. 126, s. 4 G.L. c. 126, s. 4 provides: Jails shall be used for the detention of persons charged with crime and committed for trial, committed to secure their attendance as witnesses upon the trial of criminal causes, committed pursuant to a sentence upon conviction of crime or for any cause authorized by law, or detained or committed by the courts of the United States. Jails may also be used for the detention of persons arrested without a warrant and not admitted to bail pending appearance before the district court, provided that no adequately equipped lock-up established in accordance with the provisions of section thirty-four of chapter forty is available for the detention of such person. G.L. c. 126, s. 4. Under this statute, the FCSO housed pre-arraignment detainees brought to the Jail during the evening and overnight by local police departments. The Jail was used by approximately 22 of the 26 city and town police departments in Franklin County to hold pre-arraignment detainees, as most local police departments in this rural county had no available facilities for holding these individuals overnight. The FCSO was not reimbursed by local towns for keeping detainees. As a result of the statute permitting jails to hold detainees where local lockups are unavailable, the Jail accepted numerous pre-arraignment detainees.
DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT ARGUMENT 7

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 8 of 27
I. The strip search policy was reasonable under Bell and its progeny The searches conducted pursuant to the policy, including those of the Plaintiff,
were reasonable and were, therefore, constitutional. The United States Constitution forbids only unreasonable searches. See U.S. CONST. amend IV. Where searches are not unreasonable, the searches do not violate the United States Constitution. Given that the searches conducted pursuant to the policy were reasonable as a matter of law, judgment should enter for Defendants.
A. Bell v. Wolfish Under the balancing test first enunciated by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979), “[b]oth convicted prisoners and pretrial detainees retain constitutional rights despite their incarceration, including basic Fourth Amendment rights against unreasonable searches and seizures.” Id. at 545. The “Bell balancing test” requires courts to examine the following: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559.
B. Bell’s progeny in the First Circuit and District of Massachusetts The following chronology of strip search cases within the First Circuit and the United States District Court in Massachusetts illustrates how the case law in strip search
8

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 9 of 27
cases has evolved since Bell: 1. Arruda v. Fair In Arruda v. Fair, 710 F.2d 886 (1st Cir.1983), a prison’s policy of strip searching
inmates of a security unit when they were entering or leaving a prison law library or infirmary was upheld. In writing for the court, Judge Breyer found that “Wolfish cautions us to be most hesitant to overturn prison administrators’ good faith judgments.” Id. at 887.
2. Swain v. Spinney The “reasonable suspicion” standard to be applied in strip search cases was first enunciated by the First Circuit in 1997 in Swain v. Spinney, 117 F.3d 1 (1st Cir.1997). This case concerned a female detainee who was strip searched after she was arrested along with her boyfriend, who had been arrested on theft and drug charges. The detainee in this case was arrested for a minor offense, searched at a local jail, and was subsequently held in a cell with no risk of contact with other prisoners. Id. at 8. In applying the Bell test in the context of misdemeanor detainees, the First Circuit concluded that “[s]trip and visual body cavity searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons.” Id. at 7; see also Wood v. Hancock County, 354 F.3d 57, 62 (1st Cir.2003); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.2001); Miller v. Kennebec County, 219 F.3d 8, 12-13 (1st Cir.2000). The application of this standard, however, has gone through numerous permutations since Swain was decided.
9

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 10 of 27
3. Roberts v. Rhode Island The plaintiff in Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001), challenged a policy of the Rhode Island Department of Corrections that required all males committed to state prison to be subjected to a strip search and visual cavity search. The First Circuit found that the institutional concerns in Roberts fell somewhere between Swain (local jail, no risk of prisoner contact) and those enunciated in Arruda (maximum security prison with a history of contraband problems) and Bell, and ultimately held the policy unconstitutional with respect to inmates charged with “only a misdemeanor involving minor offenses or traffic violations.” Id. at 112. The court also held that Fourth Amendment rights must be balanced against the “legitimate goals and policies of the penal institution, and the need of the institution to maintain security.” Id. at 110 (citing Bell, 441 U.S. at 546). To determine whether the government has a compelling reason and, therefore, does not need reasonable suspicion, courts have considered, among other things, the type of individual being searched, the history of contraband problems, the characteristics and dangerousness of the jail or prison population, and questions about commingling. Id. at 111-113; see also Gilanian, 431 F.Supp.3d at 176. 4. Ford v. City of Boston Judge Gertner in Ford v. City of Boston, 154 F.Supp.2d 131 (D.Mass.2001) found that Boston’s policy of performing strip searches without reasonable suspicion on all female city arrestees was unconstitutional as to “all class members charged with felonies or misdemeanors involving neither violence nor drugs, and class members held on default
10

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 11 of 27
warrants for similar offenses.” Id. at 134. Judge Gertner also found that one of the major foundations for the institutional security concerns supporting the city’s strip search policy, to keep contraband out of the city’s jails, was not supported by the evidence, as only 5 of the female arrestees possessed contraband out of 8,000 searched. Ford has not been followed. See also DeToledo v. Suffolk, 379 F.Supp.2d 138, 148 (D.Mass.2005), discussed below.
5. Savard v. Rhode Island Savard v. Rhode Island, 338 F.3d 23 (1st Cir.2003) involved a policy of strip searching individuals arrested for non-violent, non-drug related misdemeanors detained in a single, all-purpose penitentiary which housed “an array of prisoners ranging from newly sentenced felons to convicts under protective custody to pretrial detainees to arrestees. All of these individuals, except for detainees held in protective custody, were commingled while in various parts of the intake facilities.” Id. at 26. The court noted that “[t]here are important differences between detaining an arrestee in virtual isolation [such as in Swain] and introducing an arrestee into the general population of a maximum security prison.” Id. at 29. The First Circuit stated in Savard that “the case law emphasizes that prison regulations may constitutionally impinge upon fundamental rights so long as such regulations are reasonably related to legitimate penological interests. [citations omitted]. Within the walls of a maximum security prison, the need to preserve internal security is compelling. [citations omitted] We think it follows that Rhode Island correctional officials reasonably could have regarded the stark differences between local lockups and maximum security prisons as pivotal in deciding whether a particular securityoriented policy was necessary.”
11

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 12 of 27
Id. at 30-31. The court in Savard noted differences between the facts in this case and the facts in two prior cases in the line of strip search decisions, Swain and Arruda. The plaintiff in Swain was held in virtual isolation after her arrest; therefore, the security concerns were minimal. “There are important differences between detaining an arrestee in virtual isolation and introducing an arrestee into the general population.” Id. at 29. Arruda concerned a blanket strip search policy which was upheld in a case involving strip searches of convicted felons, not detainees arrested for misdemeanors as in Savard. Id. at 30. In holding that qualified immunity applied in Savard, the court stated that “there is a distinction for qualified immunity purposes between an unconstitutional but objectively reasonable act and a blatantly unconstitutional act. Saucier, 533 U.S. at 206, 121 S.Ct. 2151; Anderson, 483 U.S. at 641, 107 S.Ct. 3034. Here, the lack of any direct precedent and the undulating contours of the law during the relevant period combine to persuade us that the constitutional violation was not obvious; the defendants reasonably could have thought, prior to Roberts I, that there was room in the law for the [correctional institution’s] strip search policy.” Id. at 32. In holding for the Defendants, however, the court noted that the claimed violations occurred before the Roberts decisions, by which the blanket strip policy would have been found unconstitutional. However, the court also acknowledged that the Roberts decision was limited to non-violent, non-drug-related misdemeanors. Savard, 338 F.3d at 27. 6. DeToledo v. Suffolk The Plaintiff in DeToledo v. Suffolk, 379 F.Supp.2d 138 (D.Mass.2005), was a
12

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 13 of 27
visitor to a jail who was arrested and strip searched due to a felony warrant which had
been recalled, and which the jail administrators incorrectly believed was still valid. The
court found that whether “Swain settled the strip search issue in this Circuit with respect
to pretrial detainees, as Judge Gertner thought in Ford, is thrown into doubt by subsequent
First Circuit cases.” Id. at 148. “In Roberts, 239 F.3d at 113, the Court of Appeals found
a blanket strip search policy unconstitutional insofar as it applied to minor offenses. The
court defined ‘minor offenses’ as ‘misdemeanors involving minor offenses or traffic
violations.’ Id. at 112 (emphasis added).” Id. at 149, fn. 15.
The court in DeToledo revisited the Swain versus Arruda argument:
“In the end, we recognize that both Swain and Arruda offer valuable insights, but that neither is a very exact match. While Swain makes clear that strip searches ought not lightly to be indulged, the factual context of the case presented rather minimal security concerns. And while Arruda makes clear that institutional security needs may require intrusive measures in a maximum security setting, that case dealt not with persons arrested for relatively innocuous misdemeanors, but, rather, with hardened criminals. So long as the facts in these cases are distinguishable in a fair way from the facts at hand - and we believe that they are then neither of them can be said to have clearly established the law for purposes of a qualified immunity determination in the instant case.”
Id. at 148 (emphasis added).
7. Doe v. Preston
In Doe v. Preston, 472 F.Supp.2d 16 (D.Mass.2007), the Department of Youth
Services was sued for violating a juvenile detainee’s constitutional rights by allegedly
subjecting her to strip searches under a policy allowing such searches without reasonable
suspicion of possession of contraband. The court held that the correctional officials were
entitled to qualified immunity, as the law on the subject was not clearly established in the 13

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 14 of 27
context of a juvenile facility.
Doe is also of note due to the court’s discussion of the application of the Bell
reasonableness test:
The First Circuit has applied this test to uphold strip searches of inmates housed within a security unit in a state correctional institution, Arruda v. Fair, 710 F.2d 886 (1st Cir.1983). The same test was used to find unreasonable under the Fourth Amendment searches that were conducted without reasonable suspicion that contraband was being concealed … by persons arrested for minor, non-violent offenses who were being detained pending arraignment either at a police station, Miller v. Kennebec County, 219 F.3d 8 (1st Cir.2000), and Swain v. Spinney, 117 F.3d 1 (1st Cir.1997), or at a detention facility, Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001). In each case, the court of appeals gave consideration to the various competing interests as they appeared in the particular circumstances of the case at hand, just as the Bell v. Wolfish test requires.
Id. at 22.
C. Applying the Bell test to the searches at issue here result in the conclusion that the searches were reasonable
Unreasonable search and seizure must be balanced against the promotion of
legitimate governmental interests. Bell, 441 U.S. at 545. These interests include the
“legitimate goals and policies of the penal institution, and the need of the institution to
maintain security.” Roberts, 239 F.3d at 110 (citing Bell, 441 U.S. at 546). The
institution “may provide a compelling reason for a warrantless strip search absent
reasonable suspicion” to advance the legitimate need for institutional security. Id. at 110.
This court must examine the components of the Bell balancing test to determine
whether the policy was constitutional. This court must therefore consider the scope of the
particular intrusion, the manner in which it was conducted, the justification for initiating
it, and the place in which it was conducted. Bell, 441 U.S. at 559. 14

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 15 of 27
1. The scope of the particular intrusion A strip search of the type that was allowed by the Jail’s policy “instinctively [gives the Court] … pause.” Bell, 441 U.S. at 558. The court should examine the remaining three components to determine the policy’s constitutionality. 2. The manner in which it was conducted and the place in
which it was conducted There were no issues raised by the Plaintiff as to whether the manner in which the searches were conducted (no allegation that the visual body search itself was conducted unlawfully) or the place in which the searches occurred (in private in one of the holding cells) were unconstitutional. This leaves the court to analyze the justification put forth by the Defendants to implement the policy. 3. The justification for initiating the search The Defendants submit numerous reasons relating to the archaic Jail conditions, as set forth in the Factors section of this Memorandum, as reasons for implementing the blanket strip search policy. These include: institutional security issues; the condition of the booking area; contraband issues; intermingling; overcapacity issues; the multipurpose Jail facility; unavailability of alternatives for housing pre-arraignment detainees; and the interplay of G.L. c. 126, s. 4 and the lack of local lockups in rural Franklin County. These are sufficient justifications to tip the balance of the Bell test in favor of the Defendants. Further, once the HOC opened, it solved many of the institutional security problems that existed at the Jail, and the policy was immediately changed.
15

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 16 of 27
II. The factors enunciated in the Gilanian case provide a “compelling reason” for a blanket strip search policy, and thus a complete defense to the Plaintiff’s claims The “undulating contours” of strip search cases in the First Circuit and Federal
courts in Massachusetts preceding and during the class period took yet another sharp turn in Gilanian, in which Judge Gertner retreated from the rigid analysis that she set forth in Ford, in holding that “[i]f corrections personnel lack particularized, individualized reasonable suspicion, they may nevertheless conduct a strip-search pursuant to a blanket search policy if that policy is properly justified by other considerations.” Id. at 176.
Gilanian enumerated various factors that a court must consider in determining whether the government has a compelling reason to conduct a strip search without the need for reasonable suspicion. In determining whether a blanket strip search is justified, courts may consider, among other things, “the type of crime with which a group of inmates is charged, the institution’s history of contraband and safety problems, the existence or lack of less restrictive alternative policies, the characteristics and dangerousness of the jail or prison population, and the questions of whether the inmates to be searched have mingled with the general jail population or had contact with outside visitors.” Id. at 176. Each Gilanian factor is addressed separately below.
A. Gilanian factors 1. Type of crimes In Roberts, the First Circuit, citing Swain, ruled that detainees held in local jails
16

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 17 of 27
for minor offenses1 cannot be strip searched without reasonable suspicion.2 It seems clear that, in addressing the Gilanian factors, only those detainees charged with certain misdemeanors and strip searched at the Jail would fall within the protected class. The First Circuit has not fully defined what type of misdemeanors are included, aside from “minor offenses and traffic violations” (Roberts) and “non-violent, non-drug related misdemeanors” (Savard). (Ford, a Massachusetts District Court case, additionally includes as a protected class “all class members charged with felonies or misdemeanors involving neither violence nor drugs, and class members held on default warrants for similar offenses,” id. at 134, but, as discussed above, no other court has adopted the holding in Ford.)
2. Contraband and safety problems The second Gilanian factor is “the institution’s history of contraband and safety problems.” The existence of contraband and safety issues were the driving forces behind the implementation of the FCSO’s blanket strip search policy.
a. Contraband Of the approximately 900 pre-arraignment detainee files reviewed at the FCSO, there were five incident reports of contraband found on detainees during strip searches. 3
1 The Court in Roberts defined “minor offenses” merely as “misdemeanors involving minor offenses or traffic violations.” Id. at 112. 2 But note: “The arrestee in Swain was held in isolation in a temporary holding facility where there was no risk of contact with other prisoners. That fact, and the difference in magnitude between security concerns in a holding cell and those in a prison, led an equally divided en banc Court in Savard to conclude that neither Swain (nor Arruda) gave definitive guidance with respect to pretrial detainees.” DeToledo, 379 F.Supp.2d at 148. 3 The Plaintiff makes much of the fact that only one of the instances of contraband was found as a result of a strip search. The issue, however, is whether contraband is being brought into the institution.
17

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 18 of 27
This is only the contraband that was documented during the class period; there was other contraband found during this time period that was not properly documented.
Although the Plaintiff’s argument in its Memorandum relies heavily on the alleged lack of contraband found during strip searches at the Jail, it is a substantially higher ratio than in Ford (5 instances of contraband found on nearly 8,000 detainees) – indeed, almost a tenfold increase.
b. Safety Issues concerning the safety of detainees and Jail personnel also drove the implementation of the Jail’s strip search policy, as set forth in the Factors section of this Memorandum. 3. Characteristics and dangerousness of the jail The First Circuit in Roberts found that a strip search performed on an arrestee for a nonviolent crime was unconstitutional absent particularized suspicion. The defendant Rhode Island argued that the heightened security concerns of the intake facility, a maximum security prison where pretrial detainees were held prior to trial and sentencing, required a strip search of all detainees, an argument that the court rejected. The holding in Roberts was further defined in Savard, where the court held that “the population of a maximum security prison tends to be much more volatile and much less transient than that of a county jail.” Savard, 338 F.3d at 31. The courts have generally held that the higher the security level, the more dangerous the facility, and consequently the greater the institutional security concerns.
18

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 19 of 27
Although the Jail was a county institution, it served as a multipurpose facility, housing a variety of inmates, from those in protective custody to federal prisoners to felons serving sentences in the house block. Therefore, its population was much more volatile than the typical county jail noted in Savard. Further, the antiquated facility significantly raised the level of danger to both inmates and staff.
4. The existence or lack of less restrictive alternative policies The antiquated nature of the Jail and its overcapacity problem did not leave any alternative but to allow intermingling of inmates and pre-arraignment detainees. It also inhibited correctional officers’ capability to oversee the inmates. The ability of inmates to reach out of their cells through the bars posed both a security risk and promoted contraband circulation. The differences between the old and new institutions are remarkable. The linear layout and open bars of the old Jail inhibited officer supervision and allowed contact both between the cells themselves and between the cells and anyone walking through the hallways, which promoted the exchange of contraband and increase security risks to inmates and officers. The linear design inhibited correctional officers’ ability to oversee inmates. Thus, the Jail could be as dangerous as a maximum security prison, and makes the penological interests addressed by a blanket strip search policy more compelling. 5. Intermingling Pre-arraignment detainees were intermingled with the general population in the Jail, which created additional security problems. The court in Roberts held that
19

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 20 of 27
intermingling alone will not justify a strip search without reasonable suspicion, as commingling was “potentially alterable.” Due to the antiquated condition of the Jail, however, the commingling situation was unalterable, as there was no real alternative for separating detainees from inmates, or for housing pre-arraignment detainees elsewhere in the facility.
B. Conclusion Based on the above analysis of the Gilanian factors, the Defendants had a compelling reason to adopt a policy which allowed for strip searches at the Jail without the need for reasonable suspicion.
III. The absolute defense of qualified immunity bars an action against the Defendants due to the archaic nature of the Franklin County Jail “The law does not expect a public official, faced with the need to make an objectively reasonable real-world judgment, to anticipate precisely the legal conclusions that will be reached by a panel of federal appellate judges after briefing, arguments, and full-fledged review.... [T]he lack of any direct precedent and the undulating contours of the law during the relevant period combine to persuade us that the constitutional violation was not obvious; the defendants reasonably could have thought … that there was room in the law for the [defendants'] strip search policy.” Savard, 338 F.3d at 32.
In order to determine whether qualified immunity applies in the instant matter, the court must assess whether the law was clearly established when the strip search policy was in place.
A. Summary of the law 20

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 21 of 27
The doctrine of qualified immunity “protects public officials from the specter of damages liability for judgment calls made in a legally uncertain environment." Ryder v. United States, 515 U.S. 177, 185 (1995). In the line of cases involving strip searches, courts have held that "[t]he doctrine of qualified immunity protects public officials from civil liability 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A plaintiff in a §1983 case must demonstrate that State officials, when sued in their individual capacities, violated the plaintiff's "clearly established rights" in order to overcome qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818-819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 142 (1993).
The First Circuit applies a three step analysis to determine whether qualified immunity applies:
(1) whether the claimant has alleged the deprivation of an actual constitutional right; (2) whether the right was clearly established at the time of the alleged action or inaction; and (3) if both of these questions are answered in the affirmative, whether an objectively reasonable official would have believed that the action taken violated that clearly established constitutional right. Wilson v. City of Boston, 421 F.3d 45, 52 (1st Cir.2005) (quoting Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir.2001)). Marcello v. Maine, 489 F.Supp.2d 70, 80 (D.Me.2007). Of particular interest in this analysis is the second prong, “whether the right was clearly established at the time of the alleged action or inaction”:
21

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 22 of 27
A government official making a policy decision is entitled to qualified immunity if the law was not clearly established at the time the determination was made. If the law is unclear, “an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id. In order to make a determination whether that right was clearly established at the time it was violated, a "court must canvass controlling authority in its own jurisdiction and, if none exists, attempt to fathom whether there is a consensus of persuasive authority elsewhere." Savard v. R.I., 338 F.3d 23, 28 (1st Cir.2003). Accord Wilson v. Layne, 526 U.S. 603, 617 (1999); Brady v. Dill, 187 F.3d 104, 116 (1st Cir.1999). If the case law is sufficiently unsettled, and the Court cannot conclude that there is a consensus of authority as to a prisoner's right, the right is not clearly established and defendants are immune from claims for damages. Id.
Tardiff v. Knox County, 397 F.Supp.2d 115, 140 (D.Me.2005) (emphasis added).4
B. The scope of the right in this case was not clearly established
The presence of a balancing test is a crucial factor indicating that the scope of the
right in this case was not clearly established. Here, a balancing test must be employed in
order to determine if a policy or practice is unreasonable and, therefore, violates the
Fourth Amendment to the United States Constitution. Multiple circuits have recognized
that only in the most unusual circumstances will it be fair to say that the scope of a right
is clearly established where the assessment of that right is subject to a balancing test. The
First Circuit in Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992), stated:
[i]f the existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered “clearly established,” at least in the absence of closely corresponding factual and legal precedent.
Id. at 931, quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987), cert. denied, 484 U.S. 828 (1987).
22

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 23 of 27
As there are no First Circuit decisions (or decisions from any other circuits) concerning blanket strip search policies imposed due to the archaic nature of a jail, the Defendants have qualified immunity as to all of the potential class action plaintiffs due to their reasonable belief that the condition of the jail necessitated a blanket strip search policy. Underlying Sheriff Macdonald’s belief that the strip search policy was specifically related to the conditions at the Jail was his decision to begin working to secure funds to build a new facility after the blanket strip search policy was reinstated in 1999, in part to resolve institutional security issues surrounding pre-arraignment detainees and the statutory obligation imposed by G.L. c. 126, s. 4. In addition, his decision to change the policy to a “reasonable suspicion” standard immediately upon the opening of the new, state-of-the-art HOC evidences that the institutional security problems had been the driving force behind the old policy.
The detainees’ rights were not clearly established during the applicable class period because the antiquated jail presented unusual security concerns. There is no “clearly established” law forbidding a blanket strip search policy in a unique facility like the Jail.
Further, the “undulating contours” of the law with respect to the constitutionality of strip searches in penal institutions prior to and during the class action period, as discussed in Section I of this Memorandum, evidences that there was no “clearly established” law during this time period. “If the case law is sufficiently unsettled, and the
4 Plaintiff’s counsel in the present matter represented the class in Tardiff.
23

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 24 of 27
Court cannot conclude that there is a consensus of authority as to a prisoner's right, the right is not clearly established and defendants are immune from claims for damages.” Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir.2003). Indeed, there are numerous cases holding that, where the defendants did not know that conducting blanket strip searches was unconstitutional due to institutional security concerns, the law was not clearly established and qualified immunity applied. See Savard (Court held defendant could not have known strip search policy (policy of strip searching individuals arrested for nonviolent, non-drug related misdemeanors detained in a penitentiary housing an array of prisoners who were commingled) was unconstitutional); DeToledo (“So long as the facts in these cases are distinguishable in a fair way from the facts at hand - and we believe that they are - then neither of them can be said to have clearly established the law for purposes of a qualified immunity determination in the instant case.”); and Doe (correctional officials were entitled to qualified immunity in lawsuit brought by juvenile detainee allegedly subjected to strip searches under policy allowing such searches without reasonable suspicion of possession of contraband, as the law on the subject was not clearly established in the context of a juvenile facility).
Whether the “reasonable suspicion” standard should be applied with respect to detainees comingled in an archaic jail has not been clearly established. It would have been difficult, given the conditions in existence at the Jail prior to and during the class period, for the Defendants to determine exactly what the Constitution required in the way of a proper strip search policy at the Jail. The Defendants erred on the side of
24

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 25 of 27
institutional safety. As a result, they are entitled to qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818.
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ARGUMENT
In Bell, the primary justification offered by the Supreme Court for initiating strip searches without reasonable suspicion was the need to discover and confiscate contraband. Bell, 441 U.S. at 559. The Supreme Court determined that this justification was sufficient to validate that search policy. The justification offered in Arruda was to preclude or lessen the introduction of contraband into the prison. Arruda, 710 F.2d at 887-888. There, the court determined that the justification was sufficient to make the policy reasonable. In Swain, the justifications put forward were institutional security and ensuring that an arrestee is not concealing contraband or weapons. Swain, 117 F.3d at 7. In Roberts, the justification offered was “a concern for institutional security.” Roberts, 239 F.3d at 110-111. In both Swain and Roberts, while recognizing the legitimacy of the justifications offered, the courts found that there were not sufficient facts to render the policies reasonable.
Addressing the institutional security concern in Roberts, the court recognized that “[i]ntermingling of inmates is a serious concern that weighs in favor of the reasonableness, and constitutionality, of the search,” but was not “in itself, dispositive of
25

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 26 of 27
the reasonableness of the search.” Roberts, 239 F.3d at 112-113. Here, unlike in Roberts, intermingling is one, but not the only, concern justifying the searches at issue. Id. at 112.
Declaring that the searches conducted under the policy at issue in the instant case were reasonable is consistent with the reasoning in Roberts. The court’s holding in that case requiring individualized reasonable suspicion for a strip search relied on the fact that the plaintiffs faced misdemeanor or minor offense charges. Id. at 112. In keeping with this reasoning, routine searches of individuals charged with felonies, or charged with misdemeanors involving weapons, drugs, or violence, are reasonable.
In the instant matter, the Defendants submitted evidence of numerous reasons for the policy, each of which is discussed previously in this Memorandum. Further, the policy was changed once the HOC opened, as the new facility solved many of the serious problems that existed at the Jail. The combination of these factors should result in the conclusion that the strip search policy was reasonable. As set forth above, the justifications for the Policy in this case far exceed any of the justifications offered in Bell, Arruda, Swain or Roberts.
CONCLUSION WHEREFORE, Defendants request this Honorable Court to grant summary judgment in their favor, and deny the Plaintiff’s Motion for Summary Judgment.
Respectfully submitted, FREDERICK B. MACDONALD and FORBES BYRON,
26

Case 3:07-cv-30049-KPN Document 38 Filed 12/22/08 Page 27 of 27
By their attorney, MARTHA COAKLEY, ATTORNEY GENERAL ___/S/ Kerry Strayer__________ Kerry Strayer Assistant Attorney General Western Massachusetts Division 1350 Main Street, 4th Floor Springfield, MA 01103 Tel. No. 413-784-1240, ext. 105 Fax No. 413-784-1244 e-mail: kerry.strayer@state.ma.us BBO No. 549404 DATED: December 22, 2008 CERTIFICATE OF SERVICE I, Kerry Strayer, hereby certify that on December 22, 2008, I served a copy of the foregoing Memorandum in Support of Defendants’ Cross-Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment, by first-class mail, postage prepaid, to Howard Friedman, Esq., and David Milton, Esq., LAW OFFICES OF HOWARD FRIEDMAN, P.C., 90 Canal Street, 5th Floor, Boston, MA 02114, counsel for Plaintiffs.
___/S/ Kerry Strayer______ Kerry Strayer Assistant Attorney General
27

 
 Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 1 of 18

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

GREGORY GARVEY, Sr., on behalf of himself )

and on behalf of others similarly situated,

)

Plaintiffs,

)

)

v.

)

)

FREDERICK B. MACDONALD and

)

FORBES BYRON, in their individual capacities, )

Defendants.

)

Civil Action No. 07-30049-KPN

PLAINTIFFS' MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
1. INTRODUCTION The parties to this civil rights class action have reached a settlement in which Defendants will
pay $1,162,468, subject to reversion, to resolve all claims of a class of 486 individuals. After payment of claims administration expenses, litigation expenses, an incentive award to the class representative, and attorneys' fees, the remaining settlement fund balance will be evenly divided among participating class members up to a cap of$3,500 per person. Ifthere are any remaining funds after distribution to claimants, half of those funds will be given to Prisoners' Legal Services (formerly Massachusetts Correctional Legal Services) under the doctrine of cy pres, and half will revert to the Commonwealth.
The settlement is the product of intensive arm's length negotiations, and it is substantively fair, reasonable, and adequate. The parties have submitted a joint motion requesting that the Court (1) grant preliminary approval to the settlement, (2) appoint Analytics, Inc., as claims administrator, (3) approve the class notice and notice plan, and (4) set a date for a final fairness hearing and a date

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 2 of 18
for tiling motions to approve the settlement and for attorneys' fees. Plaintiffs submit this separate memorandum to give the Court a full account, from Plainti fTs' perspective, of why the settlement is fair and beneficial to the class. II. CASE BACKGROUND
This is a civil rights class action under 42 U.S.C. § 1983 against Franklin County Sheriff Frederick Macdonald and Special Sheriff Forbes Byron. Plaintiff, Gregory Garvey, Sr., tiled suit on March 28, 2007, alleging that Defendants maintained a policy of strip searching all individuals admitted to the Franklin County Jail without individualized suspicion, in violation of the Fourth Amendment. This policy was in place throughout the class period, which runs from March 28,2004, to February 24, 2007, inclusive. On April 15, 2008, the Court certified the following class under Fed. R.Civ. P. 23(b)(3):
All people strip searched without individualized reasonable suspicion on or after March 28, 2004, and before February 25, 2007, at the Franklin County Jail (a) while waiting for bail to be set or for a tlrst court appearance after being
arrested on charges that did not involve a weapon, drugs, contraband or a violent felony, or (b) while waiting for a tlrst court appearance after being arrested on a default or other warrant for charges that did not involve a weapon, drugs, contraband or a violent felony. The parties conducted discovery from July 2007 to November 2008, after which they filed cross motions for summary judgment. On October 22, 2009, the Court granted PlaintifTs' motion for summary judgment and denied Defendants'. Following the Court's ruling, the parties spent several months determining who was in the class, a necessary precursor to negotiating a settlement. After extensive review of individual intake
2

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 3 of 18
files and ofthe applicable law, on or about March 25, 2010, the pmiies reached agreement as to who was in the class and who was not The parties then began settlement discussions in earnest After several months of negotiations, the parties signed the settlement agreement on June 24, 2010, III. SUMMARY OF THE SETTLEMENT
On behalf of Defendants, the Commonwealth has agreed to pay $1,162,468, subject to reversion, to settle all claims brought by Plaintiffs in this action, including attorney's fees m1d costs. The agreement provides for a cash payment of up to $3,500 to every person who meets the class definition and submits a claim form. The parties have determined that there are 486 class members. Only one payment will be made to each class member no matter how many times during the class period he or she was admitted into the jail and strip searched.
Class counsel recommends, and Defendants do not oppose, an incentive payment of$20,000 to the named plaintiff, Gregory Garvey, Sr., to compensate him for his loss of privacy as a result of bringing this case and for the time he spent working with counsel to bring about the favorable result for the class. While the parties have no agreement with regard to attorneys' fees, class counsel will request that the Court award a fee of one-third of the gross settlement amount. Fees and expenses, including the costs of administering the settlement, will be deducted from the settlement amount before calculating the distribution amount to class members.
After the above payments are deducted from the total settlement amount, each class member who has submitted a valid claim form will receive an equal share ofthe remaining amount, up to a cap of$3,500. [fmoney is left over after every participating class member receives a payment, then one-half of this amount will be given to Prisoners' Legal Services under the doctrine of cy pres, and half will revert to the Commonwealth.
3

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 4 of 18
iV. THE COURT SHOULD PRELiMiNARiLY APPROVE THE SETTLEMENT AND NOTICE PLAN AND SET A DATE FOR A FAIRNESS HEARING In deciding whether to approve a proposed settlement of a class action, the Court must hold
a hearing and determine whether the settlement is "fair, reasonable and adequate.'" At this stage, the Court should make a "preliminary determination ofthe fairness, reasonableness and adequacy ofthe settlement terms. ,,2 The Court should also review the reasonableness of the proposed notices, attached to the Settlement Agreement as Exhibits A and C, and notice plan. This provisional approval is subject to a more searching inquiry at the fairness hearing. "If the parties negotiated at arm's length and conducted sutlicient discovery, the district court must presume the settlement is reasonable.'"
A. The Settlement Is Procedurally Fair 1. The negotiations occurred at arm's length.
This settlement is the result of vigorous negotiations. After the Court granted summary judgment in October 2009, the parties began to discuss settlement. As a threshold matter, the parties needed to know the size of the class, which in turn required the parties to agree on who met the class definition. This process alone took several months. After determining class size, the parties negotiated for several months before agreeing on all terms of the written settlement agreement.
I Fed. R. Civ. P. 23(e); Howe v. Townsend, 588 F.3d 24. 32 (1st Cir. 2009). 2 See Hochstadt v. Basion Sci. Corp., 2010 U.S. Dis!. LEXIS 41007, at *32 (D. Mass. Apr. 27, 2010)(citing Manual for Complex Litigation, Fourth § 21.632 (2004». 3 Howe, 588 F.3d at 32-33; see also Hochstadt, 2010 U.S. Dis!. LEXIS 41007, at *32
4

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 5 of 18
2. The parties engaged in full discovery. "[T]he stage of the proceedings at which settlement is reached is important because it indicates how fully the district court and counsel are able to evaluate the merits of PlaintitJs' c1aims.,,4 Plaintiffs in this case had the benefit of a complete discovery period, and a ruling on the merits from the Court, before entering into the settlement. Plaintiffs took extensive discovery both on the merits oftheir claims and on the composition of the class. Plaintiffs took twelve depositions, sent document requests, and propounded two sets of interrogatories to each Defendant. Plaintiffs' counsel reviewed multiple complex spreadsheets and voluminous paper booking records. During discovery, PlaintifJs identified approximately 580 individuals as likely to fit the class definition based on Defendants' records. To anive at the tInal class list, Defendants reviewed the intake files and other materials for nearly all of these individuals. Plaintiffs' connsel, in turn, reviewed the materials Defendants provided from these fjles that allegedly disqualified certain individuals from the class. The parties also conducted legal research to determine, among other things, whether particular crimes should be deemed "violent felonies." As a result of this intensive review process, the paIiies agreed that 486 individuals met the class definition. B. The Settlement Is Substantively Fair and Reasonable Courts recognize a policy in favor ofsettlement of class actions.' Settlement of this ease will prevent expenditure ofsignificant time and resources by the parties and the Court, eliminate the risks to all parties ofproceeding to a trial on damages, and provide a substantial benefit to class members.
4Rollandv. Cellucci, 191 F.R.D. 3,10 (D. Mass. 2000) (citation omitted). , See, e.g., Howe v. Townsend, 588 F.3d 24, 36 (I st Cir. 2009); Durrett v. Housing Auth. of Providence, 896 F.2d 600, 604 (I st Cir. 1990).
5

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 6 of 18
The Court should examine the amount of recovery as well as the plan for distributing the recovery to class members in order to determine whether the proposed monetary settlement is fair, reasonable and adequate. "[I]n any case, there is a range of reasonableness with respect to a settlement.,,6 The settlement in this case is well within that range.
1. The settlement provides a significant benefit to the class. The total value of the settlement is $1,162,468. Unless an exceptionally high propOliion of class members submit claims. each participating class member is likely to receive the maximum individual payment amount of $3,500. By any measure, this is more than a token recovery. Participating class members will receive a significant cash payment for filling out a short form and mailing it to the claims administrator. These class members will obtain money without having to find and hire their own lawyers. pay litigation expenses, endure the anxiety of litigation, respond to interrogatories or requests for documents, testify at depositions, and prepare for trials. Instead of giving up their privacy by filing suit or participating in a damages hearing, they will benefit from the anonymity provided by their membership in the class. Class counsel anticipates that each participating class member will receive the $3,500 maximum payment, or an amount close thereto. If the Court approves the attorneys' fees and costs requested by class counsel, including the costs of claims administration, the estimated minimum amount available for distribution to class members will be $710,000. There are 486 class members. IEup to 202 people, or 41.6% of the class, submit claim forms, then each claimant will receive the $3,500 maximum. Even assuming a 50% participation rate - which would be extraordinary for a civil rights class action like this one - each claimant would receive an estimated $2,920. While class
(, In re Relafen Antitrust Lilig, 231 F.R.D. 52, 73 (D. Mass. 2005) (citing Newman v. Stein, 464 F.2d 689,693 (2d Cir. 1972)).
6

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 7 of 18
counsel will work to secure a high participation rate, a more realistic estimate of the participation rate is 25-30 %. In such a case, each class member would receive the full $3,500. Assuming a 30 percent participation rate (or 146 claimants), $511,000 would be distributed to the class, with approximately $200,000 remaining to be divided between Prisoners' Legal Services and the Commonwealth.
The amount class members will receive under the settlement is well within the range of reasonableness for similar settlements in this state and nationwide. In Ryan v. Garvey, No. 05-30017MAP, a case against the Hampshire Sheriffs Department settled in 2007, Judge Ponsor approved a $205,000 settlement for 89 class members, 30 of whom filed claims. Each participating class member received approximately $3,900.7 In 2009, a district court in Pennsylvania approved a settlement that provided for all participating claimants to be granted a pro rata share of a settlement fund up to cap of$3,000 per class member; each claimant received approximately $1 ,400 8 Tn 2006, a New York district court approved a settlement granting $750 or $ 1,000 per class member; the court cited another strip-search class action in which claimants received $1,000 each and another in which claimants received an average of$ 3,800 per person.'
2. Class members risked getting less, or nothing, if the case went to trial. By reaching a compromise, Plaintiffs avoid the risks they would have faced by proceeding to trial. Although this Court determined liability in Plaintiffs' favor, two recent decisions from other circuits have presented the possibility that the Supreme Court may soon take up the issue of
7 In addition to Ryan, Plaintiffs' counsel has settled two other strip search class actions in Massachusetts, Mack v. Suffolk County. 191 F.R.D. 16 (D. Mass. 2000), and Connor v. Plymouth County, 00-1 0835-RBC. See Affidavit of Howard Friedman ("Friedman Aff.") '\[12.
S Boone v. City ofPhi/a., 668 F. Supp. 2d 693, 702-03 (E.D. Pa. 2009). , McBean v. City ofNew York, 233 F.R.D. 377, 388, 390-91 (S.D.N.Y. 2006).
7

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 8 of 18
prearraignment strip-searches, potentially overruling the First Circuit precedent on which this Court relied. In Bull v. City and County ofSan Francisco, 539 F.3d 1193 (9th Cir. 2010) (en banc), and Powell v. Barrett, 541 F.3d 1298 (l1th Cir. 2008) (en bane), the Ninth and Eleventh Circuits held that blanket strip searches of non-felons at the time of admission to jail are constitutional. By settling, class members avoid any risk of losing on the merits because of future changes in the law.
Moreover, if damages claims were decided individually by ajury, class mcmbers would risk winning less than $3,500, or winning only nominal damages. 'o Particularly in this economic environment, juries may not feel generous to fonner arrestees. Individuals who believe they have strong damages claims can opt out."
Settling now also ensures that class members will receive payment much sooner than if the case proceeded to trial and appeal. Receiving prompt payment is especially important in this case, where a significant portion of the class is poor and transient. Not only do many class members presumably need the money, but as time goes by, it will become increasingly difficult to contact them.'2
10 See, e.g., Foole v. Spiegel, 118 F.3d 1416 (10th Cir. 2(01) (after two appeals, plaintiff awarded $1 for an admittedly illegal strip search); Stewart v. Lubbock County, 767 F.2d 153, 154, n.2. (5th Cir. 1985)(one plaintiff awarded $1 and the other awarded $15,000); Sorenson v. City of New York, 2000 U.S.Dist. LEXIS 15090 (S.D.N.Y. 2000)(two plaintiffs awarded $1 each); Polkv. Montgomery County, 689 F.Supp. 556 (D. Md. 1988) (plaintiff awarded $1 after rejecting a settlement offer of $31,000).
" See McBean, 233 F.R.D. at 388 ("Individual class members ean decide on their own where on the scale of damages they fall, from nominal to substantial. If on the nominal side, the settlement's award of $ 750 or $ 1000 is quite attractive; if on the substantial side, the settlement allows individuals to opt out and pursue their own claims.").
12 See id. ("The prospect of a trial in this case, with the risk of receiving only nominal damages, and the risk that during protracted litigation class members or become unreachable to collect even a nominal amount, strongly favors settlement. ").
8

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 9 of 18
3. The distributiou formula is fair, reasonable and adequate. The distribution formula in this case, which provides that each class member will receive the same amount, is fair and reasonable. This simple, easy-to-administer formula preserves one of the principal benefits of this settlement - avoiding the expenditure of resources required to make hundreds of individual damages determinations. Plaintiffs' counsel has consulted with lawyers from around the country who have settled similar strip search class actions in other states. Experience bas shown that requiring individualized determinations of each class member's subjective experience to determine his or her share of the settlement can be so time consuming and expensive that it harms the class as a whole.]] People who were anested more than once during the class period will not receive additional payments because it is unlikely that a jury would reward a person for being arrested several times. Indeed, ajury could decide that a strip search was less traumatic for a detainee who had been through the search previously.
4. The cy pres distribution to Prisoners' Legal Services is appropriate. The settlement agreement contemplates that halfofany funds remaining after all participating class members are paid will go to Prisoners' Legal Services, a nonprofit that provides direct legal services to prisoners and detainees throughout the Commonwealth. The other halfwill revert to the Commonwealth. This is a fair and reasonable use of the leftover funds. The First Circuit recently endorsed the use of cy pres fund in a class action settlement. In Howe v. Townsend, the Court upheld a settlement agreement that provided that a portion of funds remaining after all class members submitted claims would go to charitable organizations that
" Friedman AfT. 12 i.
9

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 10 of 18
indirectly benefitted the class.'4 Howe was a consumer class action against a pharmaceutical company alleging artificial inflation of the price ofa prostate cancer drug; the cy pres moneys went to "charitable organizations funding cancer research or patient care."" The First Circuit noted that "[t]he cy pres ... distributions serve the objectives of compensation for the class (albeit in an indirect manner), access to jndicial relieffor small claims, and deterrence of illegal behavior."'6
The creation ofthe cy pres fund in this case is consistent not only with federal law and policy, but also with the policy ofthe Commonwealth of Massachusetts, which is paying for the settlement. Massachusetts recently amended its rules of civil procedure to explicitly provide for the donation of residual funds in class actions to charitable organizations. The amended rule states that "residual funds shall be disbursed to one or more nonprofit organizations or foundations ... which support projects that will benefit the class or similarly situated persons consistent with the objectives and purposes of the underlying causes of action on which relief was based, or to the Massachusetts IOLTA Committee.,,'7
In this case, Prisoners' Legal Services will receive payment only after all class members who have submitted claims have been paid the maximum individual compensation under the agreement, $3,500, and all expenses and fees have been paid. The agrecment states that any funds paid to Prisoners' Legal Services are to be used for "provision of additional prisoners' legal services (i.e.: for legal services not presently provided in its budget)."" Tbe funds will thus indirectly benefit class members who did not submit claims.
14Howe v. Townsend, 588 F.3d 24 (I st CiT. 2009). 151d. at 30.
](, Id. at 34 (quoting 3 Conte & Newberg, 4 Newberg on Class Actions § 10: J 5, at 513 (4th ed. 2002)).
17 Mass. R. Civ. P. 23(e)(2) (amendment effective January 1,2009). 18 Agreement ~ 47.
10

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 11 of 18
5. The attorneys' fees and expenses are reasonable. Class counsel will request attorneys' fees of one-third of the total settlement amount. plus litigation and claims administration expenses. This is consistent with the fees awarded to counsel
I" in other similar strip search class action cases.
The fee is justified by the amount of work. skill, and expertise needed to settle this case with the results achieved. Counsel will file a motion for attorney's fees and expenses under Fed. R.Civ.P. 23(h) to be heard at the time of the fairness hearing. Counsel will provide the Court with a lodestar figure for attorney's fees to verify the reasonableness of the percentage of fund method.
6. The proposed incentive award to the class representative is reasonable. Class counsel requests an incentive payment of $20,000 for class representative Gregory Garvey. Sr. The purpose of the award is to compensate him for his loss of privacy as a result of bringing this case and for the time he spent in responding to discovery and working with counsel to benefit the entire class. Mr. Garvey answered individual discovery requests and consulted with counsel throughout the litigation. He filed two affidavits in support of summary judgment and attended the oral argument. Mr. Garvey endured a loss ofhis personal privacy by revealing his name to bring this lawsuit on behalf of the class.
10 See, e.g., Mack, supra (awarding class counsel fees of 30% of a $10 million settlement fund); Connor, supra (awarding class counsel fees of 33% of a $1.35 million settlement fund); Eddleman v. Jefferson County (awarding class counsel 33.3% of a $11.5 million settlement fund); Moser v. Anderson (awarding class counsel 33.3% of the $3 million settlement fund), cited in Friedman Affidavit 11'\114-15, 18-
19.
11

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 12 of 18
"Incentive awards are recognized as serving an important fnnction in promoting class action
settlements, particularly where, as here, named plaintiffs actively participated in the litigation.,,20 In
granting incentive awards, courts consider the efforts of plaintiffs in pursuing the claims and "the
important public policy offostering enforcement oflaws and rewarding representative plaintiffs for
being instrumental in obtaining recoveries for persons other than themselves."" The dollar amount
proposed for Mr. Garvey is in line with awards approved by other courts."
An incentive payment is especially appropriate for the named class representative here
because Mr. Garvey sacrificed his privacy and subjected himself to embarrassment by admitting
publicly that he was arrested and forced to strip naked as part ofhis detention injail. 23 IfMr. Garvey
had not come forward, class members would not known that their rights were violated and would
not have sought or received any compensation for their injury. Mr. Garvey deserves compensation
for efforts that helped achieve a substantial benefit for hundreds of people.
C. The Notice to Class Members Satisfies Due Process Requirements and Federal Rule of Civil Procedure 23(e)
20 In re Lupron{R! Mklg & Sales Practices Lilig. 228 F.R.D. 75, 98 (D. Mass. 2005)(citing Denney v. .fenkens & Gilchrist, 230 F.R.D. 317, 2005 U.S. Dis!. LEXIS 2507, 2005 WL 388562, *31 (S.D.N.Y. Feb. 18,2005)); see also In re Relafen Antitrust Litig 231 F.R.D. 52, 82 (D.Mass. 2005).
21 Bussie v. Allmerica Fin. CO/p.. 1999 U.S. Dis!. LEXIS 7793, *12 (D. Mass. May 19, 1999). 22 See. e.g.. Boone, 668 F.Supp. 2d at 715 & n.3 (in strip-search class action, awarding $\5,000 to class representatives, and collecting cases with incentive awards ranging from $15,000 to $35,000); McBean v. City ofNew York, 233 F.R.D. 377, 391-392 (S.D.N.Y. 2006)(approving incentive awards ranging from $25,000 to $35,000 and noting that "when compared to incentive awards given generally to named plaintiffs across a variety of class actions, the awards given to the class representatives under the settlement here fall solidly in the middle ofthe range."); Godshall v. Franklin Mint. Co., 2004 U.S. Dis!. LEXIS 23976, *19-21 (E.D.Pa. Dec. 1, 2004)(approving $20,000 each to two class representatives from a $1.125 million settlement fund). 2J See Boone. 668 F.Supp. 2d at 715 (noting that named plaintiffs in strip search class action subject themselves to "public exposure of the fact that they have been placed into custody and charged with a
crime1').
12

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 13 of 18
Fed.R.Civ.P. 23(e) requires that the Court direct notice "in a reasonable mamler" of the proposed settlement to all members of the class who would be bound by the settlement. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency ofthe action and afford them an 0ppOliunity to present their objections."" Plaintiffs propose a multi-part notice plan composed ofindividual mailed notice, individual and posted notice at the Franklin County Jail, publicity via press release, legal notice by publication, and a website to be created by the claims administrator. The notice plan is designed to reach as many class members as possible, not to simply meet minimum due process requirements.
1. Individual notice "Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort. ,,25 Plaintiffs propose sending individual notice to each class member based on the mailing address provided at booking unless the address has been updated by the class member or obtained by an electronic scmch following the return of the original class notice mailing as undeliverable by the post otrice. In addition to individual notice by mail, the agreement provides that Defendants shall hand deliver notice and a claim form to any class member in custody of the Franklin County Jail during the period for filing claims. Defendants will provide a copy of the notice packet to any inmate upon request. The Notice of Class Action and Proposed Settlement is attached to the Settlement
24 Mullane v. Central Hanover Bank & Trust Co" 339 U.S. 306, 314 (1950). 25 Eisen v. Carlisle & Jacquelin. 417 U.S. 156, 173 (1974).
13

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 14 of 18
Agreement as Exhibit A. The notice summarizes the terms of the settlement, describes the options of each class member, discloses the incentive payment to the class representative, discloses the proposed amount of attorney's fees and expenses and explains that this issue will be decided by the Court at the fairness hearing, gives the date, time and place of the fairness hearing, and provides contact information for any questions about the settlement. The notice is drafted in plain English. This notice will be sent by first class mail, postage-prepaid, to all potential class members at their last known addresses within three weeks of the court's order granting preliminary approval of the settlement. In addition, a "generic notice" - describing in greater detail who is and who is not a class member - will be available along with a claim form on the website, and to anyone who writes the Claims Administrator asking for more information about the case. The generic notice and claim form are attached to the Agreement as Exhibits C andD.
2. Additional notices via media, pnblication, and posting at the jail In order to reach as many class members as possible, the notice plan includes several additional notices. First, because some class members may have moved without leaving a forwarding address, and because the class list may contain errors, the notice plan also includes publication of a settlement notice in two local newspapers. A notice, attached to the Settlement Agreement as Exhibit E, will be published in the Springfield Republican and the Greenfield Recorder. Second, the press will be notified of the settlement through the press release attached as Exhibit G, which is likely to result in news coverage of the settlement. The press release will be sent to the Valley Advocate, the Springfield Republican, the Daily Hampshire Gazette, the Greenfield Recorder, the Associated Press, and several western Massachusetts radio and TV
14

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 15 of 18
stations. Class members are more likely to learn of this settlement through news coverage than through paid notices in newspapers.26 Third, Defendants have agreed to post notices, attached to the Agreement as Exhibit F, in the Booking Room and in the Inmate Library of the Franklin County Jail. Finally, the class website that has already been established will provide information about the settlement.27 The notices, forms and other information about the case will be posted to the website.
Class counsel also proposes to send notice to individuals who were previously identitled as potential class members but who have since been determined not to be class members. Based on the information provided by Defendants at the time class notice was sent after class certitlcation, Plaintiffs identified approximately 582 individuals as potential class members. Notice of the case was sent to these individuals with approval of the Court. Since then, it has been determined that approximately 100 individuals in this group do not meet the class detlnition. 28 Class counsel has prepared a notice explaining to these individuals why they do not meet the class definition and informing them of their right to challenge this decision if they believe it was in error. The proposed notice is attached as Exhibit I to the affidavit of counsel submitted with this memorandum. V. ADMINISTRATION OF THE SETTLEMENT
Class counsel recommends that this Court appoint Analytics, Inc., as the claims administrator. Analytics has more than 35 years' experience in administering class actions 29 lt has experience in processing settlements in strip search class actions, having handled the
26 See 3 Conte & Newberg § 8.38 ("Traditional and expensive published notices ... are not efficient in serving the objectives ofclass notice, iu contrast to radio and television announcements and discussions.").
27 See www.franklincountyjailclass.com. 28 Friedman Aff. ~~ 24-25.
29 Friedman Aff. 1 28.
15

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 16 of 18
administration of cases nationwide. Class counsel has handled three other strip search class actions that were successfully administered by Analytics: the Nilsen strip-search class action in Maine and the Connor and Ryan cases in this District30 Magistrate Judge Collings recently appointed Analytics to be the claims administrator in another prisoners' rights class action handled by class counsel, Tyler v. Sujfi)lk County, 06-113S4-RBC (D. Mass.).
The payment to Analytics in this case is capped at $30,000, based on a detailed estimate that the company provided to Class Counsel and that defense counsel also reviewed. VI. PROPOSED SCHEDULE
Appendix A at the end of this memorandum is a proposed schedule for the settlement process using the time periods in the Settlement Agreement. Based on this schedule, the fairness hearing would take place in January 2011 in order to allow sufficient time for all possible appeals of denied claims to be exhausted. Assuming that there are no unforeseen circumstances and that the Court approves the settlement, distribution could begin shortly after final approval in January 2011. VII. CONCLUSION
For the foregoing reasons, Plaintiffs request that the Court (I) grant preliminary approval to the settlement, (2) appoint Analytics, Inc., as claims administrator, (3) approve the class notice and notice plan, and (4) set a date for a final fairness hearing and a date for filing motions to approve the settlement and for attorneys' fees.
30Id.
]6

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 17 of 18
RESPECTFULLY SUBMITTED, For the Plaintiffs, /s/ Howard Friedman Howard Friedman, BBO #180080 David Milton, BBO #668908 Law Offices of Howard ~Friedman P.c. 90 Canal Street, 5th Floor Boston, MA 02114-2022 T (617) 742-4100 hfriedman@civil-rights-law.com dmilton@civil-rights-law.com Dated: June 24, 2010 CERTIFICATE OF SERVICE I certify that on this day I caused a true copy of the above document to be served upon the attorney of record for all parties via ECF. Date: June 24, 2010 lsi Howard Friedman Howard friedman
17

Case 3:07-cv-30049-KPN Document 59 Filed 06/24/10 Page 18 of 18

APPENDIX A

..< . . Chronology of Anticipated Dates for Completing the Settlement Process

I EV~N:r
Nl1!\1BER

DA.TE ' ,
CALcuiATTf),N '

>. .... .......

>........•.•.... .lJESCIUI'TION. ..

OF EVENT

.. ...•..•......•••

1

Preliminary Hearing held.

2

To be determined Court issues Order granting preliminary approval of settlement.

bv the Court

3

1 dayafter 2 Defendants post notice at Franklin County Jail and House of Correction. Class

counsel issues press release and submits legal notice for publication in

newspapers.

4

1 \vcek atter 2 Defense counsel provides class counsel with last known address(cs), Social

Security Number, and date ofhirth of each class member. Defendants hand

dcliv~r Notice Packets to all class members in cLlstody of Franklin County

Sheriff's Department.

5

3 weeks after 2 Claims Administrator mails Notice Packets.

(,

30 days before 9 Defendants hand deliver Notice Packets to (lilY dass members in custody of

Franklin County Sheriff's Department not identified at 4.

7

90 days after 2 Deadlinc for receipt of class members' wril1cll objections to settlement.

8

90 days after 2 Deadline for receipt of class members' writtcn notices of exclusion.

9

90 days after 2 Deadlinc for receipt of class members' Settlement Claim Forms.

10

10 days after 7 Claims Administrator forwards all letters of objection to Court and to all

counsel.

11

2 weeks after 9 Two-\veek amnesty period for latc Settlement Claim Forms ends.

12

1 week after 11 Last possible date on which Claims Administrator will send notices of claim

denial

13

2 weeks after 12 Last possible date for receipt by Claims Administrator of rejected claimants'

_~lppeals.

14

I week after 13 Claims Administrator decides any remaining appeals regarding class

membership and sends notices to claimants regarding final decisions.

15

10 days after 14 Last possible date for Defendants to file objection and request hearing before

Court regarding Claims Administrator's approval of any appeal.

16

2 weeks after 14 Last possible date for receipt of rejected appclJants' letters by Claims

Administrator indicating intention 10 appeal to Court.

17

2 weeks aiter 16 Last possible date on which Claims Administrator will forward appeals and

supporting documentation to Court and to all counsel.

18 To be determined Final Fairness Hearing held. by the Court

19 To be determined Court issues Order granting final appl"oval of settlement. by the Court

20 To be determined Court decides all appeals. by the Court

21

I \\'-eek after 20 Claims Administrator sends Distribution Spreadsheet and Substitute W-9

forms submitted by participating class members to Defendants.

22

10 days after 21 Defense counsel submits executed Settlement and Judgment Payment

Authorization Form and all required documentation to Comptroller's Office

for payment.

24

60 days after 19 Interest begins to accrue on any unpaid portion of settlement.

*Date adJusted to aVOld weekend OJ to account for Intervenmg holIday.

ESTIMATED dATE ...
7/12/2010 7/12/2010 7/13/2010
7119/201 ()
8/2/2010 9110/2010 10111/2010* 1011112010' 1011112010' 10/2112010 10/25/2010* 111]/2010 11115/2010 11/22/2010 12/312010' 12/6/2010 12/20/2010 111012011 III012011 1110/2011 1117/2011 1/27/2011
311112011

18

 
 Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 1 of 15

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

__________________________________________

)

GREGORY GARVEY, Sr. on behalf of himself )

and on behalf of others similarly situated,

)

Plaintiffs,

)

)

v.

)

)

FREDERICK B. MACDONALD and

)

FORBES BYRON, in their individual capacities, )

Defendants.

)

__________________________________________)

Civil Action No. 07-30049-KPN

AMENDED SETTLEMENT AGREEMENT

I. SUMMARY The parties, by counsel, enter into this Settlement Agreement, which they will submit to
the Court for approval. Defendants agree to settle Plaintiffs’ claims for an amount not to exceed One Million, One Hundred Sixty Two Thousand, Four Hundred Sixty Eight Dollars ($1,162,468.00) (“the Total Amount”). After payment of claims administration expenses, litigation expenses, an incentive award to the class representative, and attorney’s fees (collectively, “non-class member payments”), the difference between the Total Amount and the non-class member payments (“the Class Member Amount”), which the parties estimate will be no less than $710,000, will be evenly divided among Participating Class Members up to a cap of $3,500 per person. Under this agreement, Participating Class Members will receive one payment each no matter how many times they were booked into the jail during the class period. To satisfy the claims of nonparticipating Class Members, one-half of what is left of the Class Member Amount after payments are made to Participating Class Members will be paid to Prisoners’ Legal

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 2 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 3 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 4 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 5 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 6 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 7 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 8 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 9 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 10 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 11 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 12 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 13 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 14 of 15

Case 3:07-cv-30049-KPN Document 61-1 Filed 07/15/10 Page 15 of 15

 
 Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF l\{ASS/}.CHUSETTS

)

GREGORY GARVEY, Sr., on behalf of himself )

and on behalf of others similarly situated,

)

Plaintiffs,

)

)

v.

)

)

FREDERICK B. MACDONALD and

)

FORBES BYRON, in their individual capacities, )

Defendants.

)

----------------------------~)

Civil Action No. 07-30049-KPN

PLAINTIFFS' MEMORANDUM IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

1. INTRODUCTION

Plaintiffs submit this memorandum in support of the parties' joint motion for final approval

of the settlement in this civil rights class action.

The Court granted preliminary approval to the settlement agreement on July 12, 2010. The

agreement provides that the Commonwealth of Massachusetts will pay $1,162,468 on behalf of both

Defendants to resolve all of Plaintiffs' claims, including clairus for costs and attorney's fees. The 487

class members received individual notice of the settlement, along witb a clairu form, whenever

possible; notice was otherwise provided by multiple methods designed to reach as many class

members as possible. To date, 250 class members, or 51 % of the class, have submitted valid claim

forms - an extraordinarily high rate of return for a prisoners' rights class action. No class members

have ftled any objections to the settlement, and only one class member has opted out.'

After payment of clairus administration expenses, litigation expenses, an incentive award to

the class representative, and attorneys' fees, all of the remaining settlement fund balance will be

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 2 of 16
ev-enly divided arn()l1g participating class melnbers, If the Court approves the all10unts requested for costs, fees, and the incentive payment, each participating class member will receive approximately
$2,850. Because of the high participation rate, the reversion and CJI pres provisions of the agreement which provide that funds remaining after distribution to class members will be divided equally between Prisoners' Legal Services and the Commonwealth - do not apply.
The settlement is the product of contested and lengthy negotiations. It is fair, reasonable and adequate. For these reasons, it warrants the Court's final approval, which will permit the Commonwealth to make the required payments under the agreement. II. CASE BACKGROUND
Tbis is a civil rights class action under 42 U.S.c. § 1983 against Franklin County Sheriff Fredcrick Macdonald and Special Sheriff Forbes Byron. Plaintiff, Gregory Garvey, Sr., filed suit on March 28, 2007, alleging that Defendants maintained a policy of strip searching all individuals admitted to the Franklin County Jail without individualized suspicion, in violation of the Fourth Amendment. This policy was in place throughout the class period, which runs from March 28, 2004, to Fehruary 24, 2007, inclusive. On April 15, 2008, the Court certificd the following class under Fed. R.Civ. P. 23 (b) (3):
All people strip searched without individualized reasonable suspicion on or after March 28, 2004, and before February 25, 2007, at the Franklin County Jail (a) while waiting for bail to be set or for a first court appearance after being
arrested on charges that did not involve a weapon, drugs, contraband or a violent felony, or (b) while waiting for a first court appearance after being arrested on a default or other warrant for charges that did not involve a weapon, drugs, contraband or a violent felony.
I See Declaration of David Milton ("Milton Dec!.") ~ 5. 2

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 3 of 16
TIle parties conducted discovery froin July 2007 to N overI1ber 2008, after which they filed cross motions for summary judgment. On October 22, 2009, the Court granted Plaintiffs' motion for summary judgment and denied Defendants'.
Following the Court's ruling, the parties spent several months determining who was in the class, a necessary precursor to negotiating a settlement. After extensive review of individual intake files and of the applicable law, the parties reached agreement as to who was in the class and who was not. The parties then began settlement discussions in earnest. After several months of negotiations, the parties signed the settlement agreement on June 24, 2010.
On July 12, 2010, the Court held a hearing and granted preliminary approval of the settlement agreement; appointed Analytics, Inc., as claims administrator; approved the class notice and notice plan, as altered during the hearing; and setJanuary 14, 2011, as the date for the f1nal fairness hearing. On July 16,2010, the parties f11ed amended settlement documents to conform to the changes discussed at the July 12 hearing. III. SUMMARY OF THE SETTLEMENT
Under the settlement, the Commonwealth agrees to pay on behalf of Defendants $1,162,468 to settle all claims brought by Plaintiffs in this action, including claims for attorney's fees and costs. The agreement provides for a cash payment of up to $3,500 to every person who meets the class def1nition and submits a claim form. Only one payment will be made to each class member no matter how many times during the class period he or she was admitted into the jail and strip searched.
Class counsel recommends and Defendants do not oppose an incentive payment of $20,000 to tile named Plaintiff, Gregory Garvey, Sr., to compensate him for his loss of privacy as a result of bringing this case and for the time he spent working with counsel to bring about the favorable result
3

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 4 of 16
for the class. Attorney's fees and expenses, including the costs of administering the settlement, will be deducted from the settlement amount before calculating the distribution amount to class members. Class counsel have ftled a motion requesting that the Court award a fee of one-third of the gross settlement amount, or $387,489.33. Counsel's total costs will not exceed $42,498, of which $12,498 represents litigation costs2 and up to $30,000 represents the costs of claims administration. 1
After the above payments are deducted from the total settlement amount, each class member who submitted a valid claim form will receive a payment of approximately $2,8504 Because no funds will be left over after every participating class member receives a payment, no money will be given to Prisoners' Legal Services under the doctrine of 'y preJ, and no money will revert to the Commonwealth. IV. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE
A. The Settlement Is Entitled to a Presumption of Reasonableness. Under Fed. R. Civ. P. 23(e), the Court must hold a hearing and determine if tl,e settlement is "fair, reasonable and adequate." See Nat'l AsJ'n of Chain Drl(~ Stores I!. New Eng. Health BenefitJ Fund, 582 F.3d 30, 44 (1st Cir. 2009); Dumtt v. H01lsingAuth. ofProviden,~, 896 F.2d 600, 604 (1st Cir. 1990). "If the parties negotiated at arm's length and conducted sufficient discovery, the district court must presume the settlement is reasonable." Id.; aavrd City Pshp. Co. v. Atlantic Acquisition Ltd. Pshp., 100 F.3d 1041, 1043 (lstCir.1996).
2 Milton Decl. ~ 19. 3 Under the settlement agreement, the payment to the Claims Administrator is capped at $30,000, based on a detailed estimate provided by Analytics at the time of the agreement was made. As of November 24,2010, Analytics estimated its fees to date to be $23,000; this figure will go up as Analytics continues to respond to class member inquiries, processes changes of address and other administrative matters, and, if the settlement is approved, prepares the final distribution list. Milton Decl. 1120. 4 The actual amount will be slightly more if the Claims Administrator's final fee is less than $30,000.
4

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 5 of 16

The setdement in this case warrants the presumption of reasonableness. The parties' claims

and defenses were thorougbly litigated. The parties reached setdement only after vigorous arm's

length negotiations.

1.

The parties conducted extensive discovery.

"The stage of the proceedings at which setdement is reached is important because it

indicates how fully the district court and counsel are able to evaluate the merits of plaintiffs' claims."

Rolland p. Ce!!ud, 191 F.RD. 3, 10 (D. Mass. 2000) (quoting Duhaime 1). John HalltVck Mutua! fflJurance,

177 F.R.D. 54 at 67 (D. Mass. 1997)). Plaintiffs in this case had the benefit of a complete discovery

period, and a ruling on the merits from the Court, before entering into the settlement.

Plaintiffs took extensive discovery both on the merits of their claims and on the composition

of the class. Plaintiffs took eleven depositions, sent document requests, and propounded two sets of

interrogatories to each Defendant. Plaintiffs' counsel reviewed multiple complex electronic

spreadsheets and voluminous paper booking records.

During discovery, Plaintiffs identified approximately 580 individuals as likely to fit the class

definition based on Defendants' records. To arrive at the fmal class list, Defendants reviewed the

intake files and other materials for nearly aU of these individuals. Plaintiffs' counsel, in tnm, reviewed

the materials Defendants provided from these files that allegedly disqualified certain individuals

from the class. The parties also conducted legal research to determine, among other things, whether

particular crimes should be deemed "violent felonies." Then counsel discussed the application of

5

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 6 of 16
this research to the class definition. Eventually counsel came to an agreement. As a result of this intensive review process, the parties agreed that 486 individuals met the class definitions
2. The negotiations occurred at arm's length. This settlement is the result of vigorous negotiations. After the Court granted summary judgment in October 2009, the parties began to discuss settlement. As a threshold matter, the parties needed to know the size of the class, which in turn required the parties to agree on who met the class definition. This process alone took several months. After determining class size, the parties negotiated for several months before agreeing on all terms of the written settlement agreement. B. Other Factors Confirm the Reasonableness of the Agreement. The First Circuit has not mandated any single test for determining whether a settlement meets the standard for reasonableness under Rule 23(e). Jee In re Relaftn An/i/rt/J/ Litig., 231 F.R.D. 52,72 (D. Mass. 2005); Rolland v. Cellum; 191 F.R.D. 3, 8 (D. Mass. 2000). "[T]he ultimate decision by the judge involves balancing the advantages and disadvantages of the proposed settlement as against the consequences of going to trial or other possible but perhaps unattainable variations on the proffered settlement." In re Pharm. Indus. Avg. Whole.rale Prite Utig., 588 F.3d 24, 44 (1st Cit. 2009). In Rolland, this Court identified eight factors courts have considered: "(1) Plaintiffs' likelihood of success on the merits; (2) the amount and nature of discovery or evidence; (3) the actual settlement terms and conditions; (4) the recommendation and experience of counsel; (5) the future expense and likely duration of litigation; (6) the recommendation of neutral parties, if any; (7)
5 During tbe claims period, an additional individual was added to tbe class after review of information he submitted to the Claims Administrator, and of Defendants' records, showed that be met the class definition. Twenty-three (23) other individuals not on the class list submitted claims, which were denied after review of Defendants' records confirmed that they did not meet the class definition. Milton Dec!. ~ 5.
6

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 7 of 16
the number and nature of objections; and (8) the presence of good faith and the absence of collnsion." Rolland, 191 F.R.D. at 86
11,ese factors support the settlement agreement in iliis case. 1. Likelihood of success on the merits Each class member will receive approximately $2,850 if the settlement and all attendant requests are approved. Class members risked getting much less, or nothing, if the case went to triaL By reaching a compromise, Plaintiffs avoid the risks they would have faced by proceeding to triaL Although this Court determined liability in Plaintiffs' favor, three recent decisions from other circuits have presented ilie possibility iliat the Supreme Court may soon take up the issue of prearraignmcnt strip-searches, potcntially overtuling the First Circuit precedent on which this Court relied. In Florence IJ. Bd. of Chosen Freeholdm ofBurlington, 621 F.3d 296 (3d Cir. 2(10), Buill). City and County of San Framisco, 539 F.3d 1193 (9th Cir. 2010) (en banc), Powell v. Barrett, 541 F.3d 1298 (11 th Cir. 200S) (en banc), ilie Third, Ninth, and Eleventh Circuits held that blanket strip searches of nonfelons at the time of admission to jail are constitutional; iliere is now a circuit split. By settling, class members avoid any risk of losing on the merits because of future changes in the law. Moreover, if damages claims were decided individually by a jury, class members risked winning less than $2,850, or winning only nominal damages7 Particularly in this economic environment, juries may not feel generous to former arrestees. Any individual who believed he or
"In Rolland, the Court also considered the effect of the settlement, ifany, on third parties. Rolland, 191 F.R.D. at 9. This factor is inapplicable here, which affects only class members and creates no institutional changes like those in Rolland. 7See, e.g., Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 2001) (after two appeals, plaintiff awarded $1 for an admittedly illegal strip search); Stewart v. Lubbock County, 767 F.2d 153, 154, n.2. (5th Cir. 1985)(one plaintiff awarded $ I and the other awarded $15,000); Sorenson v. City olNew York, 2000 U.S.Dist. LEXIS 15090 (S.D.N.Y. 2000)(two plaintiffs awarded $1 each); Polk v. Montgomery County, 689 F.Supp. 556 (D. Md. 1988) (plaintiff awarded $1 after rejecting a settlement offer of$31,000).
7

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 8 of 16
she could have done better at trial because of a particularly strong damages claim had the option to opt outS Only one individual opted out (without giving a reason), as opposed to 250 individuals who chose to participate in the settlement.'
Settling now also ensures that class memhers will receive payment much sooner than if the case proceeded to trial and appeal. Receiving prompt payment is especially important in this case, where a significant portion of the class is poor and transient. Not only do many class members presumably need the money, but as time goes by, it will become increasingly difficult to contact them.,n
2. The amount and nature of discovery or evidence As discussed above, the parties reached settlement only after a full discovery period and extensive review of Defendants' intake records and a summary judgment decision in favor of the plaintiff class. The extensive discovery permitted counsel to carefully assess the value of the case and to reach a principled compromise. 3. The actual settlement terms and conditions The total value of the settlement is $1,162,468. By any measure, this is more than a token recovery. Participating class members will receive nearly $3,000 for filling out a short form and mailing it to the claims administrator. These class members will obtain this money without having to find and hire their own lawyers, pay litigation expenses, endure the anxiety of litigation, respond to
8 See McBean v. City a/New York, 233 F.R.D. 377, 388 (SD.N.Y. 2006) ("Individual class members can decide on their own where on the scale of damages they fall, from nominal to substantial. If on the nominal side, the settlement's award of $ 750 or $ 1000 is quite attractive; if on the substantial side, the settlement allows individuals to opt out and pursue their own claims."). 9 Two other class members submitted claim forms that were defective (one was unsigned, one was signed by someone other than the class member). Milton Decl. ~ 5. Despite being given notice of these deficiencies and an
ofportunity to correct them, they have not done so.
, See McBean, 233 F.R.D. at 388 ("The prospect of a trial in this case, with the risk of receiving only nominal damages, and the risk that during protracted litigation class members or become unreachable to collect even a
8

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 9 of 16
interrogatories or requests for documents, testify at depositions, and prepare for trials. Instead of giving up their privacy by filing suit or participating in a damages hearing, they will benefit from the anonymity provided by their membership in the class.
As discussed, class counsel anticipates that each participating class member will receive approximately $2,850. If the Court approves the attorneys' fees and costs requested by class counsel, including the costs of claims administration, the estimated minimum amount available for distribution to class members will be approximately $712,481. All of this money will be divided
amount participating class members. Because of the excellent participation rate, the reverter and cy pres provisions for undistributed funds do not come into play.
The amount class members will receive wlder the settlement is well within the range of reasonableness for sinillar settlements in this state and nationwide. In Ryall v. Garvey, No. 05-30017MAP, a case against the Hampshire Sheriff's Department settled in 2007, Judge Ponsor approved a $205,000 settlement for 89 class members, 30 of whom filed claims. Each participating class member received approximately $3,900." In 2009, a district court in Pennsylvania approved a settlement that provided for all participating claimants to be granted a pro rata share of a settlement fund up to cap of $3,000 per class member; each claimant received approximately $1,400.12 In 2006, a New York district court approved a settlement granting $750 or $ 1,000 per class member; the court cited another strip-search class action in which claimants received $1,000 each and another in which claimants received an average of $3,800 per person. 13
nominal amount, strongly favors settlement."). 11 In addition to Ryan, Plaintiffs' counsel has settled two other strip search class actions in Massachusetts. Mack v. Suffi)lk County. 191 F.R.D. 16 (D. Mass. 2000), and Connor v. Plymouth County, 00-10835-RBC. See Declaration of Howard Friedman ("Friedman Dec1.") 1112. 12 Boone v. City ofPhila.• 668 F. Supp. 2d 693, 702-03 (E.D. Pa. 2009). 13 McBean v. City ofNew York, 233 F.R.D. 377, 388, 390-91 (S.D.N.Y. 2006).
9

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 10 of 16

4.

The recommendation and experience of counsel

"When the parties' attorneys are experienced and knowledgeable about the facts and claims,

their representations to the court that the settlement provides class relief which is fair, reasonable

and adequate should be given significant weight." Rolland, 191 F.R.D. at 10.

As detailed in the declaration of counsel, Plaintiffs' counse! has extensive experience

litigating claims of illegal strip searches. Howard Friedman has represented the plaintiffs in more

than a dozen strip search cases, including four other class actions and one case that went to trial. He

has spoken on strip search law at conferences, lectured on the subject in law schools, and served as a

consulting expert for the plaintiffs in other cases alleging illegal strip search policies. Attorney

Friedman's opinion that the settlement is advantageous to the class weighs in favor of approval.

5. The future expense and likely duration of litigation

"When comparing the significance of immediate recovery by way of the compromise to the

mere possibility of relief in the future, after protracted and expensive litigation, there are clearly

strong argnments for approving a settlement." Rolland, 191 F.R.D. at 10 (citations and internal

quotation marks omitted). Had the parties not settled, it would have been necessary to determine

damages for 487 class members. The simple, easy-to-administer distribution formula in this case - all

class members receive an equal share of the settlement - avoids the expenditure of resources

required to make hundreds of individual damages determinations. Plaintiffs' counsel has consulted

with lawyers from around the country who have settled similar strip search class actions in other

states. Experience has shown that requiring individualized determinations of each class member's

10

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 11 of 16
subjective experience to determine his or her share of the settlement can be so time consuming and expensive that it harms the class as a whole.!4
Further, as discussed above, many individuals risked getting less money from an individualized determination than they are getting from this settlement, and ail class members faced the prospect that this Court's finding of liability might have been affected if the Supreme Court had taken up the issue of pre-arraignment strip searches before this case had resolved.
6. Recommendation of neutral parties, if any No neutral parties have made any recommendations, for or against, approval of the settlement. The parties based the settlement on other settlements in this District, particularly Ryan lJ. CanJeY, and on the extensive, helpful discussions with the Court. 7. The number and nature of objections As descrihed in more detail below, class members received more than adequate notice of the settlement. Although the settlement notice and the claim form informed class memhers of their right to object to the settlement, not a single class member out of 487 has done so. "The lack of any objections from Class memhers is an extremely strong indication that the Settlement is fair." in re Marsh ERlSA Litig., 265 F.RD. 128, 139 (S.D.N.Y. 2010); Jee aLro 4 Newberg on Class Actions § 11.41 at 108 ("If only a smail number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement."). Further, any class member who felt dissatisfied with the settlement, who felt that he or she suffered atypical hardship as a result of being strip searched, or who, for whatever reason, did not want to participate in the settlement could have opted out of the
14 Friedman Dec!. 1 22. 11

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 12 of 16
settlement. Only 1 of 487 class members did SO.15 When weighed against tbe fact that more than 50% of the class chose to participate in the settlement, tbis factor strongly supports a finding that the settlement is fair.
8. The presence of good faith and the absence of collusion "The storm warnings indicative of collusion are a 'lack of significant discovery and [au] extremely expedited settlement of questionable value accompanied by an enormous legal fee.'" In re Ltlpron Mktg. & Sales Practices Iitlg., 228 F.R.D. 75, 94 (D. Mass. 2005) (citing In In re CMC Pi(k·Up TrNcklc'zlelTank Prods. Iiab. Litig., 55 F.3d 768, 801 (3d Cir. 1995». No such warnings are present here. As discussed above, the parties reached settlement only after three years of litigation and many months of negotiation. The settlement provides a substantial benefit to individual class members. As discussed below, the amounts requested for attorney's fees and for an incentive award to the representative are reasonable and are consistent with a\vards in other cases. C. The Class Received Adequate Notice of Their Rights Rule 23(e) requires that the Court direct notice "in a reasonable manner" of the proposed settlement to all members of the class who would be bound by the settlemcnt. Fed. R. Civ. P. 26(e)(1). OnJuly 12, 2010, this Court approved the parties' notice plan, with certain modifications to the text of the class notice that were incorporated into the final version of the notice. The notice plan was a success. More than 50% of the class submitted valid, timely claims showing that the class received notice. 16
15 Milton Dee!. ~ 5.
16 This is a well above the norm for prisoners' rights class actions, where return rates generally range from 10% to
30%. See, e.g., Boone v. City ofPhila., 668 F. Supp. 2d 693, 703 (E.D. Pa. 2009) (noting 15% of class members had
filed claims); McBean v. City ofNew York, 233 F.R.D. 377, 382 (S.D.N.Y. 2006)(noting that 4,319 of 40,352 class members, II %, had filed claims).
12

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 13 of 16
Beginning in early August 2010, the Claims Administrator mailed the approved notice and claim form by ftrst class mail postage-prepaid to all potential class members at their last known addresses. The last-known addresses were derived from the records of the Franklin County Sheriffs Department and the Massachusetts Department of Correction. Where it was not clear which address was more current, mailings were sent to both addresses. Additionally, approximately 13 class members who were incarcerated at the Franklin County Jail during the notice period received individual notice by hand. Defendants also posted notices in the booking room and in the inmate library of the jail.
Legal notice of the settlement was posted in the Springfteld Republican and Greenfteld Recorder on August 3-4, 2010. On July 13, 2010, the Republican published a front-page article about the preliminary approval of the settlement. Also in July 2010, Associated Press released an article that was published on over ftfteen websites, including masslive.com (the Republican's website), CBS3Springfteld.com, Boston.com, and BostonHerald.com. WFCR radio reported on the settlement and included an interview with attorney Howard Friedman. The case website, www.franklincountyjailclass.com. provided notice and other information about the case as well as a downloadable claim form.
D. The proposed incentive award to the class representative is reasonable. Class counsel requests, and Defendants do not oppose, an incentive payment of $20,000 for class representative Gregory Garvey, Sr. This award is to compensate him for his loss of privacy as a result of bringing this case and for the time he spent in responding to discovery and working with counsel to beneftt the entire class. Mr. Garvey answered individual discovery requests and consulted with counsel throughout the litigation. He ftled two afftdavits in support of summary judgment and
13

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 14 of 16
attended the oral argument and preliminary settlement hearing. Mr. Garvey endured a loss of his
personal privacy by revealing his name to bring this lawsuit on behalf of the class.
"Incentive awards are recognized as serving an important function in promoting class action
settlements, particularly where, as here, named plaintiffs actively participated in the litigation.,,17 In
granting incentive awards, courts consider the efforts of plaintiffs in pursuing the claims and "the
important public policy of fostering enforcement of laws and rewarding representative plaintiffs for
being instrumental in obtaining recoveries for persons other than tl,emselves.,,18 The dollar amonnt
proposed for Mr. Garvey is in line with awards approved by other courts."
An incentive payment is especially appropriate for the named class representative here
because Mr. Garvey sacrificed his privacy and subjected himself to embarrassment by admitting publicly that he was arrested and forced to SUlP naked as part of his detention in jail.2I1 If ?"vir. Garvey
had 110t eome fOlward, class members would not have known that their rights were violated and
would not have sought or received any compensation for their injury. Mr. Garvey deserves
compensation for efforts that helped achieve a substantial benefit for hundreds of people.
17 In re Lupron(R) Mktg. & Sales Practices Litig.• 228 F.R.D. 75, 98 (D. Mass. 2005)(citing Denney v. Jenkens & Gilchrist. 230 F.R.D. 317, 2005 U.S. Dis!. LEX1S 2507, 2005 WL 388562, *31 (S.D.N.Y. Feb. 18,2005)); see also In re Relafen Antitrust Litig. 231 F.R.D. 52, 82 (D.Mass. 2005). 18 Bussie v. Allmerica Fin. Corp.• 1999 U.S. Dis!. LEXIS 7793, *12 (D. Mass. May 19, 1999). 19 See, e.g.. Boone. 668 F.Supp. 2d at 715 & n.3 (in strip-search class action, awarding $15,000 to class representatives, and collecting cases with incentive awards ranging from $15,000 to $35,000); McBean v. City of New York, 233 F.R.D. 377, 391-392 (S.D.N.Y. 2006)(in strip search class action, approving incentive awards ranging from $25,000 to $35,000 and noting that "when compared to incentive awards given generally to named plaintiffs across a variety of class actions, the awards given to the class representatives under the settlement here fall solidly in the middle of the range."); Godshall v. Franklin Mint. Co.. 2004 U.S.Dis!. LEXIS 23976, *19-21 (E.D.Pa. Dec. 1, 2004)(approving $20,000 each to two class representatives from a $1.125 million settlement lund). In another prisoners' rights class action handled by class counsel, Tyler v. Suffolk County. 06-cv-11354-RBC, Magistrate Judge Collings recently approved $20,000 incentive payments to each of the two class representatives out of a $1.5 million settlement fund. Friedman Decl. ~ 23. 20 See Boone. 668 F.Supp. 2d at 715 (noting that named plaintiffs in strip search class action subject themselves to "public exposure of the fact that they have been placed into custody and charged with a crime").
14

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 15 of 16

E. The aitorneys' fees and expenses are reasonabie. Under Fed. R. Civ. P. 230') and 54(d)(2), class counsel is filing a separate motion supporting its request for attorney's fees and costs, along with declarations and a memorandmll in support. Class counsel requests attorneys' fees of one-third of the total settlement amount, plus litigation and claims administration expenses. The fee request is consistent with the fees awarded to counsel in other similar strip search class action cases, and it is justified by tbe amount of work, skill, and expertise needed to settle tbis case with the results achieved.21 The costs are also reasonable. V. CONCLUSION For the foregoing reasons, Plaintiffs request that the Court grant final approval to the settlement and approve an incentive payment of $20,000 to the class representative, Gregory Garvey, Sr.

Dated: December 23,2010

RESPECTFULLY SUBMI1TED, For the Plaintiffs,
Isl David Milton
Howard Friedman, BBO #180080 David Milton, BBO #668908 Law Offices of Howard Friedman P.c. 90 Canal Street, 5th Floor Boston, MA 02114-2022 T (617) 742-4100 hfriedman@civil-rights-law.com dmilton@civil-rights-law.com

21 See. e.g.. Mack. supra (awarding class counsel fees of 30% of a $10 million settlement fund); Connor. supra (awarding class counsel fees of 33% of a $1.35 million settlement fund); Eddleman v. Jefferson County (awarding class counsel 33.3% of a $11.5 million settlement fund); Moser v. Anderson (awarding class counsel 31 % of the $3 million settlement fund), cited in. Friedman Dec!. ~~ 14-15,18-19.
15

Case 3:07-cv-30049-KPN Document 68 Filed 12/23/10 Page 16 of 16
CERTIFICATE OF SERVICE I certify that on this day I caused a true copy of the Above document to be served upon the attorney of record for all parties via ReF.
Date: December 23, 2010 lsi Da1JidMii!on
David ;\1i1ton
16

 
 CM/ECF - USDC Massachusetts - Version 3.0.5 - Docket Report

https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.pl?470042725760512-L_3...

United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:07-cv-30049-KPN

Garvey v. MacDonald et al Assigned to: Magistrate Judge Kenneth P. Neiman Cause: 42:1983 Civil Rights Act

Date Filed: 03/28/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Gregory Garvey, Sr.

represented by Howard Friedman Law Offices of Howard Friedman 90 Canal Street 5th Floor Boston, MA 02114-2022 617-742-4100 Fax: 617-742-5858 Email: hfriedman@civil-rights-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Frederick B. MacDonald
Defendant Forbes Byron

represented by Kerry David Strayer Commonwealth of Massachusetts Office of the Attorney General Western Massachusetts Division 1350 Main St., 4th Floor Springfield, MA 01103-1629 413-784-1240 X105 Fax: 413-784-1244 Email: kerry.strayer@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kerry David Strayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

1 of 3

7/16/2007 2:37 PM

CM/ECF - USDC Massachusetts - Version 3.0.5 - Docket Report

https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.pl?470042725760512-L_3...

03/28/2007 03/28/2007
03/28/2007 03/28/2007 03/28/2007 04/30/2007
04/30/2007 06/04/2007 06/05/2007
06/14/2007 06/18/2007
06/18/2007
06/20/2007 06/29/2007 07/03/2007 07/03/2007

1 COMPLAINT against all defendants Filing fee: $ 350, receipt number 1462511, filed by Gregory Garvey, Sr.(Friedman, Howard) (Entered: 03/28/2007)
2 Civil Cover Sheet & Category Sheet re 1 Complaint by Gregory Garvey, Sr. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet# 2 Civil Cover Sheet Category Form)(Friedman, Howard) (Entered: 03/28/2007)
Case Assigned to Judge Kenneth P. Neiman. (Finn, Mary) (Entered: 03/28/2007)
Summons Issued as to Frederick B. MacDonald, Forbes Byron. (Finn, Mary) (Entered: 03/28/2007)
Remark - Magistrate Judge Consent Form to counsel. (Finn, Mary) (Entered: 03/28/2007)
3 WAIVER OF SERVICE Returned Executed Frederick B. MacDonald waiver sent on 4/5/2007, answer due 6/4/2007. (Friedman, Howard) (Entered: 04/30/2007)
4 WAIVER OF SERVICE Returned Executed Forbes Byron waiver sent on 4/4/2007, answer due 6/4/2007. (Friedman, Howard) (Entered: 04/30/2007)
5 ANSWER to Complaint by Frederick B. MacDonald, Forbes Byron.(Strayer, Kerry) (Entered: 06/04/2007)
6 NOTICE of Scheduling Conference ISSUED, cc:cl. Initial Scheduling Conference set for 7/11/2007 at 10:00 AM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman; joint statement and LR 16.1 certs by 7/5/07. (Healy, Bethaney) (Entered: 06/05/2007)
7 MOTION to Continue Scheduling Conference to Week of July 16, 2007 by Frederick B. MacDonald, Forbes Byron.(Strayer, Kerry) (Entered: 06/14/2007)
Judge Kenneth P. Neiman : Electronic ORDER entered granting 7 Motion to Continue Scheduling Conference set for 7/17/2007 11:30 AM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman. (Stuckenbruck, John) (Entered: 06/18/2007)
8 Consent to Magistrate Judge Neiman's Standing Order. (Lindsay, Maurice) Additional attachment(s) added on 6/20/2007 (Lindsay, Maurice). (Entered: 06/18/2007)
9 CONSENT to Jurisdiction by US Magistrate Judge by Gregory Garvey, Sr.. (Lindsay, Maurice) (Entered: 06/20/2007)
10 CERTIFICATION pursuant to Local Rule 16.1 Executed by Gregory Garvey, Sr.(Friedman, Howard) (Entered: 06/29/2007)
11 CERTIFICATION pursuant to Local Rule 16.1 by Frederick B. MacDonald, Forbes Byron.(Strayer, Kerry) (Entered: 07/03/2007)
12 JOINT STATEMENT re scheduling conference. (Strayer, Kerry) (Entered: 07/03/2007)

2 of 3

7/16/2007 2:37 PM

CM/ECF - USDC Massachusetts - Version 3.0.5 - Docket Report

https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.pl?470042725760512-L_3...

PACER Service Center

Transaction Receipt

07/16/2007 15:37:18

PACER Login:

hs0328

Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 1

Cost:

clearinghouse 3:07-cv-30049-KPN 0.08

3 of 3

7/16/2007 2:37 PM