UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

:

NICHOLE MARIE McDANIEL, and

:

LESSIE LEE DAVIES,

:

both individually and on behalf of a class of :

others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF SCHENECTADY, :

HARRY BUFFARDI,

:

both individually and in his

:

official capacity as Sheriff of the County of :

Schenectady, GORDON POLLARD, both :

individually and as Undersheriff of the :

County of Schenectady, and ROBERT :

ELWELL, both individually and as

:

Major in the Schenectady County Sheriff’s :

Department,

:

:

Defendants.

:

____________________________________:

Civil Action Number CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendants of rights

secured to the Plaintiffs and proposed Class by the United States Constitution and the

laws of the United States of America. For at least the past twenty years, the Schenectady

County Sheriff’s Department has had a policy of strip-searching all individuals who enter

the Schenectady County Jail and are placed in jail clothing, regardless of the crime upon

which they are charged. Upon information and belief, this policy is, in part, derived from

the written procedures of the Schenectady County Sheriff’s Department, and was

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promulgated by senior Department officials; specifically, Defendants Harry Buffardi, Gordon Pollard and Robert Elwell.
It has been well established in this judicial circuit for many years that individuals charged with misdemeanors or violations cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In fact, a judge in this Judicial District has recently held that the blanket strip search policy of the Schenectady City Police Department was unconstitutional – a policy based, in large part, upon that promulgated by the Schenectady County Sheriff’s Department. In short, the policy of Schenectady County and the Schenectady County Sheriff’s Department to force those charged with minor crimes to undergo the indignities of a strip search upon entry into the Schenectady County Jail is not only clearly illegal, but is insensitive and unnecessary.
Nichole McDaniel and Lessie Davies bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. Both of these individuals were charged with misdemeanor and/or violation offenses, and both were subject to strip searches, in violation of their right against unreasonable searches under the Fourth Amendment of the United States Constitution. They seek monetary damages for themselves and each member of the proposed class, a declaration that the Sheriff’s Department’s policies are unconstitutional, and an injunction precluding Schenectady County and the Schenectady County Sheriff’s Department from continuing to violate the rights of those placed into their custody. With this as a background, Plaintiffs Nichole McDaniel and Lessie Davis complain as follows:
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JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. 2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES 3. Plaintiff Nichole McDaniel (“McDaniel”) is 19 years old and resides in Schenectady County, New York. On or about June 11, 2004, McDaniel was arrested and placed in the Schenectady County Jail on charges of two counts of Petty Larceny and one county of Endangering the Welfare of a Child (both class A misdemeanors). 4. Plaintiff Lessie Davies (“Davies”) is 18 years old and resides in Schenectady County, New York. Davies was arrested on or about June 11, 2004 and transported to the Schenectady County Jail on charges of one count of petty larceny and one count of endangering the welfare of the child (both class A misdemeanors).
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5. Defendant County of Schenectady (the “County”) is a county government organized and existing under the laws of the State of New York. At all times relevant hereto, the County, acting through its Sheriff’s Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Schenectady County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the Schenectady County Jail. In addition, at all relevant times, the County was responsible for enforcing the rules of the Schenectady County Jail, and for ensuring that Sheriff’s Department personnel employed in the Jail obey the Constitution and laws of the United States and of the State of New York.
6. The Schenectady County Sheriff’s Department (the “Sheriff’s Department”) is a County Sheriff’s Department organized and existing under the laws of the State of New York. Although not a legal entity for the purposes of litigation, the Department is listed as a party for the purposes of identification. At all times relevant hereto, the Sheriff’s Department was responsible for operating, organizing, overseeing and administering the Schenectady County Jail (“SCJ”). At all times relevant hereto, Defendant Sheriff’s Department, together with the County of Schenectady, was responsible for the polices, practices, supervision, implementation and conduct of all matters pertaining to the SCJ, and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the SCJ. In addition, at all times relevant hereto, Defendant Sheriff’s Department, together with the County of Schenectady, was responsible for enforcing the rules of the Schenectady County Jail, and
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for ensuring that Sheriff’s Department personnel employed in the SCJ obeyed the Constitution and laws of the United States and of the State of New York.
7. Defendant Harry Buffardi (“Sheriff Buffardi”) is the duly elected Sheriff of Schenectady County, and, as such, is a policy maker with respect to the treatment of pretrial and other detainees over which the SCJ exercises custodial or other control. Sheriff Buffardi’s principal place of business is 320 Veeder Avenue, Schenectady, NY 12305. Sheriff Buffardi is made a Defendant in this action in both his individual and official capacities.
8. Defendant Gordon Pollard (“Undersheriff Pollard”) is the duly appointed Undersheriff of Schenectady County, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the SCJ exercises custodial or other control. Undersheriff Pollard’s principal place of business is 320 Veeder Avenue, Schenectady, NY 12305. Undersheriff Pollard is made a Defendant in this action in both his individual and official capacities.
9. Defendant Robert Elwell (“Major Elwell”) is the duly appointed Major of the Schenectady County Sheriff’s Department and is the officer in charge of the operation of the Schenectady County Jail. As such, Major Elwell is a policy maker with respect to the treatment of pre-trial and other detainees over which the SCJ exercises custodial or other control. Major Elwell’s principal place of business is 320 Veeder Avenue, Schenectady, NY 12035. Major Elwell is made a Defendant in this action in both his individual and official capacities.
10. Collectively, Sheriff Buffardi, Undersheriff Pollard, and Major Elwell will be referred to as the “Policy Making Defendants.”
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CLASS ACTION ALLEGATIONS
11. Plaintiffs bring this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of
the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly
situated individuals who were charged with misdemeanors or minor crimes and were strip
searched upon their entry into the Schenectady County Jail.
12. The class that Plaintiffs seek to represent is defined as follows:
All persons who have been or will be placed into the custody of the Schenectady County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon their entry into the Schenectady County Jail pursuant to the policy, custom and practice of the Schenectady County Sheriff’s Department and the County of Schenectady. The class period commences on June 29, 2001 and extends to the date on which the Schenectady County Sheriff’s Department and/or the County of Schenectady are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
13. This action has been brought and may properly be maintained as a class action
under Federal law and satisfies the numerosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
14. The members of the class are so numerous as to render joinder impracticable.
Upon information and belief, there are hundreds of people arrested for misdemeanors and
violations who are placed into the custody of the Schenectady County Jail every month –
all of whom are members of the proposed class. Upon information and belief, the size of
the proposed class totals at least 5,000 individuals, some of whom have had their civil
rights violated on multiple occasions.
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15. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of class members and the fact that class members are likely dispersed over a large geographical area, with some members presently residing outside of Schenectady County and this Judicial District. Furthermore, upon information and belief, many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
16. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches violated by Defendants’ conducting strip searches absent particularized suspicion. All members of the class were charged with misdemeanors or violations when placed into the custody of the Schenectady County Jail, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
17. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members.
18. The representative Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.
19. Plaintiffs have retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. The named Plaintiffs are being represented by Elmer Robert Keach, III; Bruce Menken and Jason Rozger of Berenbaum
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Menken & Ben-Asher, LLP; Gary E. Mason and Charles Schneider of The Mason Law Firm, PLLC; and Jonathan Cuneo and Charles LaDuca of Cuneo, Waldman and Gilbert, LLP. Mr. Keach is an experienced civil rights and class action attorney who has litigated a wide variety of civil rights actions before this Court, and has litigated class action lawsuits in state and federal courts in five states. Mr. Keach has successfully litigated strip search cases against the Troy City Police Department and the Schenectady City School District, and was lead counsel in the Rensselaer County Jail strip search class action that recently settled before this Court.
20. Bruce Menken and Jason Rozger are both experienced civil rights attorneys from New York City, having litigated scores of civil rights cases against a number of Defendants, including one prison brutality case presently pending in this District. Mr. Menken and Mr. Rozger have successfully represented many victims of illegal strip searches, including several who opted out of the recent class action litigation against the City of New York. Mr. Menken and Mr. Rozger were also co-counsel in the Rensselaer County Jail class action.
21. Gary E. Mason is one of this country’s premier class action attorneys, with offices in Washington, DC. Mr. Mason has successfully litigated class actions against Fortune 500 companies in both state and federal court in over a dozen jurisdictions, including gaining a settlement for a class of purchasers of defective polybutylene pipe of $ 950 million dollars. Mr. Mason has served as lead or co-counsel in numerous high profile class actions, including In Re The Exxon Valdez, In Re Diet Drugs Product Liability Litigation and In Re Synthetic Stucco (EIFS) Product Liability Litigation. In addition to his extensive experience as a class action and environmental lawyer, Charles
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Schneider is a former trial attorney with the U.S. Department of Justice’s Civil Rights Division and has successfully litigated a series of cases involving corrections misconduct. Mr. Mason and Mr. Schneider were also co-counsel in the Rensselaer County Jail class action.
22. Jonathan Cuneo and Charles LaDuca of Cuneo Waldman & Gilbert, have extensive experience in state and federal trial and appellate courts, before law enforcement authorities and in proceedings before the United States Congress. Cuneo and LaDuca have successfully prosecuted several complex class actions, including cases involving securities fraud, antitrust violations, consumer protection and products liability in state and federal courts throughout the United States.
23. In short, Plaintiffs’ counsel has the resources, expertise and experience to successfully prosecute this action against Schenectady County, the Schenectady County Sheriff’s Department and the Policy Making Defendants. Counsel for Plaintiffs knows of no conflicts among members of the class, or between counsel and members of the class.
24. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs’ seek class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to the same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and placed into the custody of the Schenectady County Jail. In short, the County of Schenectady, the Schenectady County Sheriff’s Department, the Policy Making Defendants and Schenectady County Corrections Officers acted on grounds generally applicable to all class members.
25. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
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26. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the Schenectady County Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
27. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
28. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for at least the past
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twelve years, with the practice being declared unconstitutional in this judicial circuit in 1986.
29. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
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FACTS Facts Applicable to the Class Generally 30. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 31. Upon information and belief, the County of Schenectady, the Schenectady County Sheriff’s Department and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Schenectady County Jail and are placed into jail clothing, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. 32. Upon information and belief, the County of Schenectady, the Schenectady County Sheriff’s Department and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) on all individuals who enter the custody of the Schenectady County Jail, regardless of the individual characteristics or the nature of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as “strip searches.” 33. The County of Schenectady, the Schenectady County Sheriff’s Department, and the Policy Making Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized,
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reasonable suspicion. This judicial circuit has stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion, with this principle being clearly established in 1986 by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986) and recently affirmed by Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), cert. denied sub. nom, Nassau Co. v. Shain, 537 U.S. 1083 (2002). This Court has also recently held that the blanket strip search policy of the Schenectady City Police Department was unconstitutional. See, Gonzalez v. City of Schenectady, 141 F. Supp.2d 304 (N.D.N.Y. 2001). Upon information and belief, the Schenectady Police’s written policy was based on the policy promulgated by the Schenectady County Sheriff’s Department.
34. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
35. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
36. Upon information and belief, the County of Schenectady, the Schenectady County Sheriff’s Department and Policy Making Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching all individuals placed into the custody of the Schenectady County Jail and placed into jail clothing without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip
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searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
37. Pursuant to this written and/or de facto policy, each member of the Class, including every named Plaintiff, was the victim of a routine strip search upon their entry into the Schenectady County Jail. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
38. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches – each member of the class, including every named Plaintiff – has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs A. Nichole McDaniel
39. Ms. McDaniel’s experience is representative. On or about June 11, 2004, Ms. McDaniel was arrested and charged with two counts of petty larceny and one count of endangering the welfare of a child (both Class A misdemeanors). Ms. McDaniel subsequently spent 7 days in the Schenectady County Jail, and was released to probation and discharged from the Jail on June 18, 2004. Ms. McDaniel is presently 19 years old. She was taken into custody by the Town of Rotterdam Police Department. The circumstances of her criminal charges are that she is alleged to have shoplifted clothing at
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the Rotterdam Square Mall, and that the act of shoplifting “endangered” her two year old daughter.
40. At approximately 9:00 PM on or about June 11, 2004, Ms. McDaniel was transported to the Schenectady County Jail on $1,000.00 bail. Approximately thirty minutes later, Ms. McDaniel was moved into a room in the booking area of the Schenectady County Jail and ordered to remove her clothing one item at a time. As a Corrections Officer watched, Ms. McDaniel removed all of her clothing except her underpants and brassiere. When she hesitated to remove her underclothes, she was told that she could pick the item of underclothing she wanted to take off first. Ms. McDaniel complied, and removed both her underpants and brassiere.
41. A Corrections Officer then instructed Ms. McDaniel to squat and cough. Ms. McDaniel initially performed this maneuver while facing the Corrections Officer, and was instructed to turn around to do it again because she had performed this action improperly. Ms. McDaniel complied, with the Corrections Officer conducting a visual inspection of Ms. McDaniel’s vaginal and rectal area. Ms. McDaniel was also required to submit to a search of her mouth as part of this procedure. McDaniel was then provided with a jail uniform.
42. On this particular occasion, there was no reasonable suspicion to believe that Ms. McDaniel was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. McDaniel that could have given rise to the requisite reasonable suspicion.
43. Without stating or implying that Ms. McDaniel is a habitual criminal, Ms. McDaniel has been arrested on a number of occasions in the past. Consequently, there is
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a possibility beyond mere speculation that she will be rearrested in the future, making it likely that she will again be subjected to the same illegal search procedure.
44. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Ms. McDaniel has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish. B. Lessie Davies
45. Ms. Davies’ experience is representative as well. On or about June 11, 2004, Ms. Davis was arrested on charges of petty larceny and endangering the welfare of a child (both Class A Misdemeanors). Ms. Davies subsequently spent 6 days in the Schenectady County Jail, and was released to probation and discharged from the Jail on June 17, 2004. Ms. Davies is presently 18 years old. Ms. Davies was taken into custody by the Town of Rotterdam Police Department. The circumstances of her criminal charges are that she is alleged to have shoplifted clothing at the Rotterdam Square Mall, and, upon information and belief, that the act of shoplifting “endangered” her two month old daughter who was with her at the time.
46. At approximately 9:00 PM on or about June 11, 2004, Ms. Davies was transported to the Schenectady County Jail on $1,000.00 bail. Approximately five minutes later, Ms. Davies was moved into a room (upon information and belief, where jail uniforms are stored) in the booking area of the Schenectady County Jail and ordered to remove her clothing one item at a time. As a Corrections Officer watched, Ms. Davies removed all of her clothing except her underpants and brassiere. When she hesitated to
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remove her underclothes, she was told that “those have to come off too.” Ms. Davies complied, and removed both her underpants and brassiere.
47. A Corrections Officer then instructed Ms. Davies to face the wall, squat and cough. Ms. Davies complied, with the Corrections Officer conducting a visual inspection of Ms. Davies’ vaginal and rectal area. Ms. Davies was also required to submit to a search of her hair as part of this procedure. Davies was then provided with a jail uniform.
48. On this particular occasion, there was no reasonable suspicion to believe that Ms. Davies was concealing a weapon or other contraband. Indeed, no inquiry was made of Ms. Davies that could have given rise to the requisite reasonable suspicion. In fact, this was the first time that Ms. Davies was arrested for anything.
49. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Ms. Davies has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
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CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivations Under of Color of State Law -50. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 49. 51. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 52. The actions of Defendants detailed above violated Plaintiffs’ rights under the United States Constitution. Simply put, it was not objectively reasonable for Schenectady County Corrections Officers to strip search Plaintiffs and class members based on their arrests for misdemeanor/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct Schenectady County Corrections Officers to conduct such searches. 53. These strip searches were conducted pursuant to the policy, custom or practice of the County of Schenectady and the Schenectady County Sheriff’s Department. As such, the County of Schenectady is directly liable for the damages of the named Plaintiffs and members of the Class. 54. Upon information and belief, Sheriff Buffardi, Undersheriff Pollard and Major Elwell are responsible for establishing the policies and procedures to be utilized in the
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operation of the Schenectady County Jail, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, Buffardi, Pollard and Elwell are each individually responsible for the damages of the named Plaintiffs and members of the Class.
55. Sheriff Buffardi, Undersheriff Pollard and Major Elwell knew that the SCJ’s strip search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and members of the Class of their Constitutional rights.
56. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
57. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs have been irreparably injured.
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AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
58. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 57.
59. The policy, custom and practice of the Schenectady County Sheriff’s Department, the County of Schenectady and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Schenectady County Jail without any particularized suspicion that the individuals in question have either contraband or weapons.
60. Plaintiffs and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Schenectady and the Schenectady County Sheriff’s Department to be unconstitutional.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
61. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 60.
62. The policy, custom and practice of the Schenectady County Sheriff’s Department, the County of Schenectady and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Schenectady County Jail without any
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particularized suspicion that the individuals in question have either contraband or weapons.
63. Upon information and belief, this policy is currently in place at the Schenectady County Jail, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs.
64. The continuing pattern of strip searching individuals charged with minor crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
65. Plaintiffs demand that the County of Schenectady, the Schenectady County Sheriff’s Department, the Policy Making Defendants and Schenectady County Corrections Officers immediately desist from strip searching individuals placed into the custody of the Schenectady County Jail absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much.
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DEMAND FOR PUNITIVE DAMAGES 66. The actions of the Individual Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search policy even though they know for a fact that their actions are unconstitutional. 67. It is clear that the Policy Making Defendants, the County of Schenectady and the Schenectady County Sheriff’s Department have no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish the Policy Making Defendants, and to send a message to them that the requirements of the United States Constitution also apply to government officials in Schenectady County.

DEMAND FOR TRIAL BY JURY 68. The Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Nichole McDaniel and Lessie Davies, on behalf of

themselves and on behalf of a class of others similarly situated, request that this

Honorable Court grant them the following relief:

A.

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

B.

A judgment against all Defendants, jointly and severally on Plaintiffs’ First

Cause of Action detailed herein, awarding Compensatory Damages to each named

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

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

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Bruce E. Menken, Esquire

USDC, NDNY Bar Roll Number 104942

Jason J. Rozger, Esquire

BERANBAUM, MENKEN, &

BEN-ASHER, LLP 80 Pine Street, 32nd Floor

New York, NY 10004

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail: jrozger@bmbf.com

Gary E. Mason, Esquire

Charles Schneider, Esquire

(Motion for Permanent Admission Pending)

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

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Jonathan W. Cuneo, Esquire

USDC, NDNY Bar Roll Number 511605

Charles LaDuca, Esquire

USDC, NDNY Bar Roll Number 511604

CUNEO WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E.

Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________

NICOLE MARIE MCDANIELS, individually and on behalf of a class of others similarly situated, et al.
Plaintiffs

- v -
THE COUNTY OF SCHENECTADY, et al., Defendants
_______________________________________

1:04-CV-757 (GLS/RFT)

APPEARANCES: ELMER ROBERT KEACH, III Attorney for the Plaintiffs One Steuben Place Albany, New York 12207

OF COUNSEL: ELMER ROBERT KEACH, III, ESQ.

GOLDBERG SEGALLA LLP Attorneys for the Defendants 7 Southwoods Boulevard Suite 204 Albany, New York 12211

WILLIAM J. GREAGAN, ESQ.

RANDOLPH F. TREECE U.S. MAGISTRATE JUDGE

PROTECTIVE ORDER

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WHEREAS, on January 7, 2005, this Court rendered a Ruling, on the record, which was memorialized in an Order dated January 10, 2005. By both the Ruling and the subsequent Order, this Court granted Plaintiffs permission to inspect and videotape specific portions of the Schenectady County Jail Facility and further ordered that the Facility Booking Sheets (Slips) for the relevant period as set forth in the Complaint shall be disclosed but pursuant to a protective order. Both the inspection and the videotaping and the disclosure of the Booking Slips contain either personal or otherwise confidential information or raise a significant security concern that may be the subject of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Based upon further deliberation it is hereby Ordered:
BOOKING SLIPS By an Order, dated January 10, 2005, the Defendants are required to disclose to the Plaintiffs the Booking Slips for Non-felony, Pretrial Detainees during the relevant period set forth in the Complaint. The Booking Slips shall be redacted to the extent that they exclude disclosure of medical conditions, illness, medications, special diet, and any other information related to these areas of inquiry. Further, the third page of the Booking Slips, a suicide assessment form, shall be redacted as well. Notwithstanding that certain confidential information has been redacted, the other
2

information contained therein shall be deemed confidential as well and subject to this Protective Order. To the extent necessary, this information shall be used for this litigation only.
That information within the Booking Slips which shall be considered confidential information and subject to this Protective Order shall include the name, address, date of birth, date of arrival at the Schenectady County Jail Facility, social security number, name of next of kin, phone number of next of kin and offense charged, miscellaneous information and the remainder of the “inmate booking information,” exclusive of that information directed to be redacted, for all non-felony, pretrial detainees. 1
Prior to the Defendants’ actual disclosure to Plaintiffs of the Booking Slips and information contained therein, these documents shall be marked “CONFIDENTIAL” in a manner that will not interfere with the legibility thereof.
Except with the prior written consent of the individual pretrial detainee(s), the individual pretrial detainee(s) stamped confidential Booking Slip(s), or the information contained therein, may NOT be disclosed to any person (including the named Plaintiffs), except for the attorneys for the parties and those employees and
1 A non-felony, pretrial detainee shall include those charged with misdemeanors, violations, violation of parole, violation of probation, or held in civil or family court matters.
3

agents working directly with the attorneys, for use only in connection with this action. Should a non-felony, pretrial detainee becomes a plaintiff to this action or is interviewed by either party, that detainee may be shown his or her personal Booking Slip(s) only.
Any person to whom information provided under this order is disclosed must sign a statement agreeing to be bound by this Protective Order. The signed statement, as annexed hereto as Exhibit “A” shall contain:
(1) a recital that the signatory has read and understands this Order; (2) a recital that the signatory understands that unauthorized disclosures of the stamped confidential documents constitutes contempt of court. Plaintiffs’ counsel must maintain a list of all persons to whom the Booking Slips and the information contained therein, has been disclosed. The Defendants may make an application to the Court for the Court to conduct an in camera inspection of the Plaintiffs’ list of all persons who may have inspected the Booking Slips and the information contained therein. Upon such an application by the Defendants, the Plaintiffs shall make the list available to the Court within five (5) business days of the application. To the extent that these Booking Slips may be used at any one witness or party’s deposition as it may relate to this litigation, said Booking Slips remain subject to this Protective Order. The attorneys for the parties must, within fifteen (15) days
4

after receiving any deposition transcript, designate pages of the transcript and/or exhibits thereto as confidential, if related to disclosure of the Booking Slips or the information contained therein. Until the expiration of the fifteen (15) day period, the entire deposition will be treated as subject to this Protective Order. If the attorneys for the parties do not timely designate the confidential information in a deposition relating to the Booking Slips or the information contained therein, then the entire transcript or its exhibits will be treated as confidential until such time this Court may lift the protection provided by this Order. However, the parties need not re-designate as confidential a document previously so designated.
The Booking Slips or information contained therein, that has been marked confidential pursuant to this Order, shall continue to be treated as confidential information at trial. The trial court may determine how this information and/or documents shall be kept confidential at trial.
The stamped confidential Booking slips or information contained therein, or corresponding pages of depositions deemed confidential, shall not be filed with the Clerk, except when required in connection with motions under Rule 56 or other matters pending before the Court. If required to be filed, said documents shall be filed under seal and shall remain sealed while in the office of the Clerk so long as they retain their status as stamped confidential documents.
5

Nothing in this Order shall prevent or otherwise restrict counsel from rendering advice to their actual client(s), in the course thereof, relying generally on examination of stamped confidential Booking Slips and information provided therein, provided, however, that in rendering such advice and otherwise communicating with such client(s), counsel shall not make specific disclosure of any item so designated, except to have the client adhere to the procedures set forth above.
Anyone who is permitted access to stamped confidential Booking Slips or information contained therein pursuant this Order shall use the information only for preparation and the trial (itself) of this litigation and shall not use such information for any other purpose.
INSPECTION AND VIDEOTAPING By an Order, date January 10, 2005, this Court granted Plaintiffs permission to inspect and videotape certain aspects or rooms of the Schenectady County Jail Facility, which shall occur on either January 11 or 12, 2005, at a time that is not disruptive to the operation of the Facility. The rooms identified to be inspected and/or videotaped shall be the booking area, the sally port, and the jail control room. The jail control room video shall be on a separate and independent tape from the videotape of the sally prot and booking area. The videotapes of the inspection shall be subject to this Protective Order and shall not be used for any other purpose other
6

than this litigation. The videotape of the booking area and the sally port may not be disclosed to
any person, except for the attorneys for the parties and those employees and agents working directly with the attorneys, for use only in connection with this action. To the extent said videotape needs to be disclosed to the Plaintiffs or anyone who may become a named plaintiff to this action, said videotape may be disclosed consistent with the conditions set forth in this Protective Order.
The videotape of the jail control room is for the attorneys for the parties and those employees and agents working directly with the attorneys only. Said videotape shall not be disclosed to the Plaintiffs and anyone who may be named as a plaintiff in this action, without prior court order.
A copy of all videotapes taken during the inspections shall be shared with the Defendants. All other copies of the videotapes shall remain in the exclusive custody and control of the attorneys.
Any person to whom the videotapes have been shown or provided under this order must sign a statement agreeing to be bound by this Protective Order. The signed statement, as annexed hereto as Exhibit “A” shall contain:
(1) a recital that the signatory has read and understands this Order; (2) a recital that the signatory understands that unauthorized disclosures of the stamped confidential documents constitutes contempt of court.
7

Plaintiffs’ counsel must maintain a list of all persons to whom the videotapes have been shown, disclosed or reviewed.
The Defendants may make an application to the Court for the Court to conduct an in camera inspection of the Plaintiffs’ list of all persons who may have reviewed the videotapes. Upon such an application by the Defendants, the Plaintiffs shall make the list available to the Court within five (5) business days of the application.
To the extent that these videotapes may be used at any one witness or party’s deposition as it may relate to this litigation, said videotapes remain subject to this Protective Order.
The videotapes shall continue to be treated as confidential information at trial. The trial court may determine how this information and/or documents shall be kept confidential at trial. Further, the videotapes shall not be filed with the Clerk, except when required in connection with motions under Rule 56 or other matters pending before the Court. If required to be filed, said videotapes shall be filed under seal and shall remain sealed while in the office of the Clerk.
Nothing in this Order shall prevent or otherwise restrict counsel from rendering advice to their actual client(s), in the course thereof, relying generally on examination of the videotapes, provided, however, that in rendering such advice and otherwise communicating with such client(s), counsel shall not make specific
8

disclosure of any depictions of the jail control room. Anyone who is permitted access to videotapes shall use the information only
for preparation and the trial (itself) of this litigation and shall not use such information for any other purpose.
The provisions of this Order shall not terminate at the conclusion of this action. Within thirty (30) days after final conclusion of all aspects of this litigation, which may include an appeal, stamped confidential Booking Slips and all copies of same (other than unsealed exhibits of records) and the videotapes shall be returned to the Defendants or, at the option of Defendants, destroyed. All counsel of record shall make certification of compliance herewith and shall deliver the same to counsel for the Defendants not more than sixty (60) days after final termination of this litigation.
All attorneys of record are responsible for employing reasonable measures to control, consistent with this Order, duplication of, access to, and distribution of copies of stamped confidential documents and the videotapes.
SO ORDERED. January 11, 2005 Albany, New York
9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________
NICOLE MARIE MCDANIELS, individually and on behalf of a class of others similarly situated, et al.
Plaintiffs
- v -
THE COUNTY OF SCHENECTADY, et al., Defendants
_______________________________________

1:04-CV-757 (GLS/RFT)

I, __________________________________, being 18 years of age or older, have read and

understands the PROTECTIVE ORDER ON BOOKING SLIPS, RELATED INFORMATION

THEREIN, AND REVIEWING THE VIDEOTAPES, attached hereto as Exhibit “A”.

I, _________________________________, understand that the unauthorized disclosure of

the stamped confidential document(s), known as the booking slips, the information contained

therein, and the videotapes constitutes contempt of court.

Dated:

, 200 .

Sworn to before me

this day of

, 200 .

_______________________________ Signature

__________________________
Notary Public

10

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________

NICOLE MARIE MCDANIELS, individually and on behalf of a class of others similarly situated, et al.
Plaintiffs

- v -
THE COUNTY OF SCHENECTADY, et al., Defendants
_______________________________________

1:04-CV-757 (GLS/RFT)

APPEARANCES: ELMER ROBERT KEACH, III Attorney for the Plaintiffs One Steuben Place Albany, New York 12207

OF COUNSEL: ELMER ROBERT KEACH, III, ESQ.

GOLDBERG SEGALLA LLP Attorneys for the Defendants 7 Southwoods Boulevard Suite 204 Albany, New York 12211

WILLIAM J. GREAGAN, ESQ.

RANDOLPH F. TREECE U.S. MAGISTRATE JUDGE

ORDER

Presently before this Court are several discovery disagreements. The parties have served and filed, respectively, letter-memoranda framing and discussing their relative positions on the

issues at hand. On February 9, 2005, a telephonic conference, on the record, was held. During the telephonic hearing, this Court made rulings, which are incorporated by reference into this Order. The Court will, nonetheless, summarize those rulings within this Order: McDaniels’ Deposition
The deposition of Nicole McDaniels shall occur on or before February 22, 2005 in Albany, New York. The Plaintiffs shall bear all expenses related to conducting this deposition, exclusive of attorney fees. In the event Ms. McDaniels is not deposed on or before February 22, 2005, the Defendants may file a motion for sanction without seeking further court approval. Application for Rule 11 Sanctions
The Plaintiffs’ application for permission to pursue a Rule 11 motion is DENIED. Plaintiffs’ Noticed Witnesses
The Plaintiffs has served notice to depose four rank and file employees of the Defendant County. These rank and file employees are represented by counsel provided by their union, Council 82. These four witnesses shall be deposed on or before March 15, 2005. The parties and Council 82 counsel should decide on an appropriate deposition schedule for these four witnesses. Defendants’ Noticed Witnesses
The Defendants have served subpoenas on eight to eleven witnesses to be deposed. It is possible that all eleven may not be deposed. At this juncture, the Court will not set a deadline to depose these witnesses. The Court will permit the parties an opportunity to agree upon a schedule to conduct these witnesses’ depositions. If the parties cannot come to an agreement, they may seek further court intervention and a deadline will be set by the Court.

Class Certification On January 10, 2005, this Court extended the date for serving and filing a motion to
certify the class. Dkt. No. 25, Order, dated Jan. 10, 2005. Within that Order, the Court also directed the Defendants to disclose the misdemeanor booking sheets. Id. However, the Defendants have filed objections to the Court’s ruling on this issue with the District Court. District Judge Gary L. Sharpe has set a return date on this appeal of June 23, 2005. Since the disclosure of the booking sheets are relevant to identifying the class, among other things, this Court will stay the filing of the motion for class certification for a date after the District Judge has ruled on the discovery appeal. The Plaintiffs shall notify this Court of the District Judge’s ruling on the appeal. At that point and time, this Court will set a new date for the filing of the motion for class certification. Plaintiffs’ undisclosed witness
Plaintiffs’ counsel identified a client of his who may have relevant information regarding this litigation. However, the lucidity of this relevance is now an issue for this Court to address. There are several vagaries regarding what she may know and how she may have gleaned this knowledge. Therefore, the Court directs Plaintiffs’ counsel to advise this Court what information and how she came to acquire this information to determine if it is relevant to this case, said disclosure to be made on or before February 18, 2005. If this information requires disclosure of attorney-client privileged communication, the attorney can provide such information in an affidavit for an in camera review. If the client does not have a concern about her identity being disclosed to the Defendants, then counsel is directed to share such identification information with the Defendants on or before February 18, 2005.

Plaintiffs’ Supplemental Responses to Defendants’ Interrogatories The identification of a witness is neither protected by the attorney-client privilege nor the
work product doctrine. The request for the names and addresses of witnesses in Interrogatories number 3-9 shall be provided. FED. R. CIV. P. 26(a)(1)(A), 26(b); MOORE’S ON FEDERAL PRACTICE at ¶ 33.70; Doe v. Mercy Health, 1993 WL 377064, at *7: Colorado v. Schmidt-Tiago, 108 F.R.D. 731, 735. Further, the Plaintiffs shall identify the relevant documents requested in Interrogatories 3-9. The Plaintiffs shall supplement their answers in Interrogatories 5, 6, 7, 9 and 10, consistent with the Court’s rulings. Supplemental responses, consistent with the Court’s rulings and this Order, shall be served upon the Defendants on or before February 28, 2005.
SO ORDERED. Albany, New York February 9, 2005

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,
-againstIndex No. 1:04-CV-0757(GLS)(RFT)
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff’s Department,
Defendants. -----------------------------------------------------------
ORDER PRELIMINARILY APPROVING SETTLEMENT
WHEREAS, the Plaintiffs and Defendants have entered into a
Settlement Agreement intended to resolve the litigation pending in this
Court; and
WHEREAS, the Settlement Agreement, together with supporting
materials, sets forth the terms and conditions for a proposed settlement
and dismissal with prejudice of these actions against the Defendants; and
WHEREAS, the Court has before it the parties’ Motion for Preliminary

Approval of Settlement and Memorandum in Support of Motion for Preliminary Approval of Settlement, together with the Settlement Agreement and supporting materials; and
WHEREAS, the Court is satisfied that the terms and conditions set forth in the Settlement Agreement were the result of good faith, arm’s length settlement negotiations between competent and experienced counsel for both Plaintiffs and Defendants, IT IS HEREBY ORDERED AS FOLLOWS: 1. Capitalized terms used in this Order have the meanings assigned to them in the Settlement Agreement and this Order. 2. The terms of the parties’ Settlement Agreement are hereby conditionally approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that said settlement is sufficiently within the range of reasonableness and that notice of the proposed settlement should be given as provided in this Order. 3. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the following settlement class:
All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip

searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 4. The Court further conditionally finds that Plaintiff Lessie Davies is an adequate class representative for the Settlement Class. 5. The Court further finds that Plaintiffs’ Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Paragraph IV of the Settlement Agreement. 7. If the Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendants shall have reserved all their rights to oppose any and all class certification motions, to contest the adequacy of Plaintiffs as representatives of any putative class, and to contest the adequacy of Class Counsel as adequate Class Counsel. Additionally, Plaintiffs have reserved all of their rights, including their right to continue with the litigation pending at the time of the settlement. Notice to Settlement Class and Appointment of Settlement Administrator

8. Counsel for the Class (“Class Counsel”) are as follows:
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32nd Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
Charles LaDuca, Esquire CUNEO WALDMAN & GILBERT, LLP 507 C Street NE Washington, DC 20002
9. Beginning no later than November 27, 2006, Class Counsel shall
cause to be disseminated the notices, substantially in the form attached as
Exhibits A and B hereto, in the manner set forth in Paragraph IV of the
Settlement Agreement. Such Notice Program will be completed expedi-
tiously pursuant to the terms of the Settlement Agreement. Class members

will have until February 26, 2007 to opt out and March 28, 2007 to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement attesting to compliance with the provisions of this paragraph. 10. The notice to be provided as set forth in the Settlement Agreement is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in full compliance with the notice requirements of Fed R. Civ. P. 23, due process, the Constitution of the Untied States, the laws of New York and all other applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness. 11. Class Counsel are authorized to retain Rust Consulting, Inc., 625 Marquette Avenue, Suite 880, Minneapolis, MN 55402 in accordance with the terms of the Settlement Agreement and this Order. Requests for Exclusion from the Settlement Class 12. Any member of the Settlement Class that wishes to be excluded (“opt

out”) from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on final settlement approval (the “Final Approval Hearing”) is hereby scheduled to be held before this Court on May 1, 2007, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to

the Released Parties that are Defendants herein, and the entry of final judgment in this class action. Class Counsel’s application for award of attorney’s fees and costs shall be heard at the time of the fairness hearing. 15. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the settlement class of any scheduling issues by way of the settlement website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the settlement, and Class Counsel’s application for fees and expenses by serving a written objection. 18. Any Class member making the objection (an “objector”) must sign the objection personally. An objection must state why the objector objects to

the proposed Settlement and provide the basis to support such position. If
an objector intends to appear personally at the Fairness Hearing, the
objector must include with the objection a notice of the objector’s intent to
appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed
no later than February 26, 2007. If counsel is appearing on behalf of more
than one Class Member, counsel must identify each such Class Member
and each Class Member must have complied with the requirements of this
Order. These documents must be field with the Clerk of the Court at the
following address:
Clerk of the Court U.S. District Court for the Northern District of New York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
20. Objections, along with any notices of intent to appear, must also be
mailed to Class Counsel and counsel for Defendant at the address listed
below:
CLASS COUNSEL
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010

DEFENSE COUNSEL William J. Greagan, Esq. Goldberg Segalla LLP 8 Southwoods Boulevard Suite 204 Albany, NY 12211
21. Only Class Members who have filed and served valid and timely
notices of objection shall be entitled to be heard at the Fairness Hearing.
Any Class Member who does not timely file and serve an objection in
writing to the Settlement, entry of Final Judgment, or to Class Counsel’s
application for fees, costs, and expenses, in accordance with the procedure
set forth in the Class Notice and mandated in this Order, shall be deemed
to have waived any such objection by appeal, collateral attack, or other-
wise.
22. Persons wishing to be heard at the Fairness Hearing are required to
file written comments or objections and indicate in their written comments
or objections their intention to appear at the Fairness Hearing. Settlement
Class members need not appear at the hearing or take any other action to
indicate their approval.
23. All members of the Settlement Class who do not personally and
timely request to be excluded from the Class are enjoined from proceeding
against the Defendants for the claims made in the Complaint.

Other Provisions 24. Upon approval of the settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Albany, New York Dated: October 25, 2006

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,

-against-
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff’s Department,

Index No. 04-CV-0757(GLS)(RFT)

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

AMENDED ORDER PRELIMINARILY APPROVING SETTLEMENT

WHEREAS, the Plaintiffs and Defendants have entered into a Settlement Agreement

intended to resolve the litigation pending in this Court; and

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

terms and conditions for a proposed settlement and dismissal with prejudice of these actions against

the Defendants; and

WHEREAS, the Court has before it the parties’ Motion for Preliminary Approval of

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

together with the Settlement Agreement and supporting materials; and

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

Agreement were the result of good faith, arm’s length settlement negotiations between competent

and experienced counsel for both Plaintiffs and Defendants, IT IS HEREBY ORDERED AS FOLLOWS: 1. Capitalized terms used in this Order have the meanings assigned to them in the Settlement Agreement and this Order. 2. The terms of the parties’ Settlement Agreement are hereby conditionally approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that said settlement is sufficiently within the range of reasonableness and that notice of the proposed settlement should be given as provided in this Order. 3. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the following settlement class:
All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
4. The Court further conditionally finds that Plaintiff Lessie Davies is an adequate class representative for the Settlement Class. 5. The Court further finds that Plaintiffs’ Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Paragraph IV of the Settlement Agreement. 7. If the Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendants shall have reserved all their rights to oppose any and all class certification motions, to contest the adequacy of Plaintiffs as representatives of any putative class, and to contest the adequacy of Class Counsel as adequate

Class Counsel. Additionally, Plaintiffs have reserved all of their rights, including their right to
continue with the litigation pending at the time of the settlement.
Notice to Settlement Class and Appointment of Settlement Administrator
8. Counsel for the Class (“Class Counsel”) are as follows:
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32nd Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
Charles LaDuca, Esquire CUNEO WALDMAN & GILBERT, LLP 507 C Street NE Washington, DC 20002
9. Beginning no later than December 11, 2006, Class Counsel shall cause to be disseminated
the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth
in Paragraph IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class members will have until
March 12, 2007 to opt out and April 11, 2007 to file claims. Prior to the Final Approval Hearing,

Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement attesting to compliance with the provisions of this paragraph. 10. The notice to be provided as set forth in the Settlement Agreement is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in full compliance with the notice requirements of Fed R. Civ. P. 23, due process, the Constitution of the Untied States, the laws of New York and all other applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness. 11. Class Counsel are authorized to retain Rust Consulting, Inc., 625 Marquette Avenue, Suite 880, Minneapolis, MN 55402 in accordance with the terms of the Settlement Agreement and this Order. Requests for Exclusion from the Settlement Class 12. Any member of the Settlement Class that wishes to be excluded (“opt out”) from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement

Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on final settlement approval (the “Final Approval Hearing”) is hereby scheduled to be held before this Court on May 15, 2007 at 9:00 a.m., to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are Defendants herein, and the entry of final judgment in this class action. Class Counsel’s application for award of attorney’s fees and costs shall be heard at the time of the fairness hearing. 15. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the settlement class of any scheduling issues by way of the settlement website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the settlement, and Class Counsel’s application for fees and expenses by serving a written objection. 18. Any Class member making the objection (an “objector”) must sign the objection personally. An objection must state why the objector objects to the proposed Settlement and provide the basis to support such position. If an objector intends to appear personally at the Fairness Hearing, the

objector must include with the objection a notice of the objector’s intent to appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed no later than 90 days
from the Notice Date. If counsel is appearing on behalf of more than one Class Member, counsel
must identify each such Class Member and each Class Member must have complied with the
requirements of this Order. These documents must be field with the Clerk of the Court at the
following address:
Clerk of the Court U.S. District Court for the Northern District of New York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
20. Objections, along with any notices of intent to appear, must also be mailed to Class Counsel
and counsel for Defendant at the address listed below:
CLASS COUNSEL
Elmer R. Keach, III, Esq. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL William J. Greagan, Esq. Goldberg Segalla LLP 8 Southwoods Boulevard Albany, NY 12211
21. Only Class Members who have filed and served valid and timely notices of objection shall
be entitled to be heard at the Fairness Hearing. Any Class Member who does not timely file and
serve an objection in writing to the Settlement, entry of Final Judgment, or to Class Counsel’s
application for fees, costs, and expenses, in accordance with the procedure set forth in the Class
Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal,

collateral attack, or otherwise. 22. Persons wishing to be heard at the Fairness Hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the Defendants for the claims made in the Complaint. Other Provisions 24. Upon approval of the settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Dated: November 29, 2006
Albany, New York

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

:

NICHOLE MARIE McDANIEL and

:

LESSIE DAVIS, on behalf of themselves :

and a Settlement Class of Others Similarly :

Situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF SCHENECTADY, :

et. al.,

:

:

Defendants.

:

____________________________________:

No. 04-CV-757 (GLS/RFT)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, FOR AN AWARD OF ATTORNEYS’ FEES AND FOR APPROVAL OF INCENTIVE AWARDS TO THE CLASS REPRESENTATIVE AND A PROSPECTIVE INTERVENOR

Respectf

ully Submitted By:

Elmer Robert Keach, III, Esquire

USDC, NDNY Bar Roll Number 601537

LAW OFFICES OF ELMER ROBERT

KEACH, III, PC

1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

T

Telephone:

518.434.1718

Telecopier:

518.770.1558

Electronic Mail: bobkeach@nycap.rr.com

Gary E. Mason, Esquire

Alexander Barnett, Esquire

THE MASON LAW FIRM, PLLC

1225 19th Street, NW

USDC

Suite 600

CUNEO

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Electronic

Dated: July 23, 2007 AND

T Elect

Bruce E. Menken, Esquire

USDC, NDNY Bar Roll Number 10494

Jason J. Rozger, Esquire

BERANBAUM, MENKEN, BEN-ASHER & BIERMAN, LLP

80 Pine Street, 32nd Floor

New York, NY 10004

elephone:

212.509.1616

elecopier:

212.509.8088

ronic Mail: jrozger@bmbb.com

Jonathan W. Cuneo, Esquire

USDC,

NDNY Bar Roll Number 511605

Charles LaDuca, Esquire

, NDNY Bar Roll Number 511604

WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E.

Suite

300

W

ashington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Mail: CharlesL@cuneolaw.com

ATTORNEYS FOR PLAINTIFFS THE SETTLEMENT CLASS

TABLE OF CONTENTS

Table of Authorities

ii

Introduction

1

Procedural Background

1

Terms of the Settlement and Settlement Administration

2

Argument

6

POINT I: THE COURT SHOULD APPROVE THE CLASS ACTION

SETTLEMENT, AS THE SETTLEMENT IS FAR, REASONABLE AND

ADEQUATE, AND IS NOT THE PRODUCT OF COLLUSION

6

A. The Settlement is Procedurally Fair

7

B. The Settlement is Substantively Fair.

8

1. Complexity, Expense and Likely Duration of Litigation

8

2. Reaction of the Class to the Settlement

9

3. Stage of Proceedings and Amount of Discovery Completed 11

4. The Risks of Establishing Liability and Damages,

and Risk of Maintaining Class Action Through Trial

12

5. Ability of the Defendants to Withstand a Greater Judgment 14

6. The Range of Reasonableness of the Settlement Fund

14

POINT II: CLASS COUNSEL’S REQUEST FOR ATTORNEYS’ FEES

AND EXPENSES IS REASONABLE AND SHOULD BE APPROVED

BY THE COURT

15

POINT III:THE INCENTIVE AWARDS TO LESSIE DAVIES

AND WILLIAM SMITH SHOULD BE APPROVED

22

Conclusion

23

i

TABLE OF AUTHORITIES

FEDERAL CASES

In re American Bank Note, 127 F.Supp.2d 418 ............................................ 21

Baffa v. Donaldson Lufkin & Jenrette Sec. Co., 2002 WL 1315603 ............ 20

Carlson v. American Brands, Inc., 450 U.S. 79 ........................................... 13

City of Detroit v. Grinnell Corp., 356 F.Supp. 1380 ............................ 6, 7, 19

Class. Slomovics v. All For A Dollar, 906 F.Supp. 146 ................................. 9

Cox v. Malone, 199 F.Supp.2d 235 ............................................................... 12

DAmato v. Deutsche Bank, 296 F.3d 78 ....................................................... 10

Genden v. Merrill Lynch, 700 F.Supp. 208 .................................................. 23

Goldberger v. Integrated Resources, 209 F.3d 43 .................................. 15, 16

In Re Holocaust Victim Asset Litigation, 105 F.Supp.2d 139 ........................ 6

Joel A. v. Guiliani, 218 F.3d 132. .................................................................... 6

Kelsey v. County of Schoharie, 2005 WL 1972557 ...................................... 17

In re Lloyds American Trust Fund Litig., 2002 WL 31663577 ..................... 20

Malachman v. Davis, 706 F.2d 426 ................................................................ 6

Maley v. Del Global Technologies Corp., 186 F.Supp.2d 358

..... passim

Marisol A. v. Giulani, 185 F.R.D. 152 .......................................................... 13

Marriott v. County of Montgomery, 227 F.R.D. 159 ..................................... 11

Mary Beth G. v. City of Chicago, 723 F.2d 1263 ......................................... 19

McBean v. City of New York, 233 F.R.D. 337 .............................................. 12

McBean v. City of New York, 233 F.R.D. 377 ............................ 10, 12, 13-14

McKenzie Construction Inc. v. Maynard, 758 F.2d 97 ................................. 15

In Re NASDAQ Market-Makers Antitrust Litigation, 187 F.R.D. 465 ......... 21

Nilsen v. York County, 400 F.Supp.2d 266 ................................. 16, 17, 20, 24

ii

Roberts v. Texaco, 979 F.Supp. 185 ............................................................. 22 Shain v. Ellison, 356 F.3d 211 ...................................................................... 12 Walmart Stores v. Visa U.S.A., 396 F.3d 96 ........................................... 15, 21 In Re Warner Communications Security Litigation, 798 F.2d 35 .................. 7
DOCKETED CASES Eddleman v. Jefferson County, No. 91-CV 144-J ......................................... 11 Moser v. Anderson, No. 93-634-B ................................................................ 14
FEDERAL STATUTES 28 U.S.C. Sec. 1292(b) ................................................................................... 9
iii

I. Introduction On behalf of the Settlem ent Class certifi ed by the Court on October 25, 2006, Plaintiff Lessie Davies and Class Counsel hereby m ove for final approval of the cl ass action settlement, including an award of counsel fees, expenses and incentive payments to the Class Representative and a proposed intervenor. Class Counsel respectfully suggests to the Court that the $2.5 million settlement of the Class’ cla ims against Sc henectady County provides Class Mem bers with exceptional relief when com pared with other rece nt settlements in similar cases, and should be approved by the Court. II. Procedural Background This action was filed on June 29, 2004 as a proposed class action seeking to address the conduct of illegal strip searches at th e Schenectady County Jail. The Nam ed Plaintiffs, Nichole McDaniel and Lessie Davies, alleged that th e Schenectady County Sheriff’s Departm ent employed a unif orm policy and /or practice of strip se arching all de tainees admitted to th e Schenectady County Jail on m isdemeanor or other minor charges. This action was the subject of intense litigation from the da te of the Court’s Rule 16 conference until the parties reached the within settlement. The Plaint iffs took eight depositions, in cluding the deposition of Major Robert Elwell (the SCJ Jail Superintendant) and several Corrections Officers, the Defendants deposed Class Repres entative Lessie Davies, and the pa rties filed a multitude of discovery disputes for decision by Magistrate Judge Ra ndolph F. Treece. (Docket entries 8, 13-16, 18-24, 27-28, 62-63). The De fendants unsuccessfully moved for summary judgm ent on the bases of personal jurisdiction and the damages limitations of the Prisoner Litigation Reform Act (PLRA) (docket entries 33, 58), and both parties appealed some of Judge Treece’s ruling s to the District Court (docket entries 29, 43). The Defendants also moved to d ismiss the claim s of Class
1

Representative Nichole McDaniel, who failed to appear for her deposition despite a Court Order that she do so.
The efforts to settle this action begin in early 2005, and the partie s participated in a settlement conference with Judge Treece on May 17, 2005. W hile this settlem ent conference was unsuccessful, Judge Treece laid the groundwork for the ultimate resolution of this action, as it was his suggestion regarding the m onetary amount of the settlement that was ultim ately incorporated into th e Settlement Agreement. Se ttlement discussions began in earnest after the District Court denied the De fendants’ Motions for Summary Judgm ent in September 2005, with those negotiations las ting for over nine m onths. W hile the parties agreed on the m onetary amount of the settlement early in the process, several months passed as they negotiated the actual terms of the settlem ent, including extensive injunctive relief. The negotiations leading to the culmination of the Settlement Agreement were as contentious as the litigation, with several drafts of the agreem ents being exchanged and the p arties ultimately seeking intervention from the Court when reaching a stalem ate on one very contentious issue. ( See, Docket Entries 91-96). The parties finally reached a settlement on July 31, 2006, and moved for preliminary approval on August 18, 2006. The Court provided prelim inary approval of the Settl ement on October 25, 2006, after which notice was m ailed to the class members and published in accordance with the settlement agreement, and class mem bers filed claims. Plaintiff Le ssie Davies and Class Counsel now move for final approval of the Settlement.
III. Terms of the Settlement and Settlement Administration The case was settled by the Defendants agreeing to consent to the certification of the case as a class action for settlem ent purposes, and agreeing to set up a comm on fund of $2.5 m illion to pay claims to class mem bers. Schenectady County also agreed to extensive injunctive relief,
2

including implementing a new strip search po licy and training all of its officers on the requirements of the new policy. See, Settlement Agreement, p. 10, part III(A) (exhibit A to Keach affirmation). The settlem ent was stru ctured to p rovide $1.75 million for pro rata payments to class members who made claims on the settlement, with the remaining funds to pay administrative costs, in centive awards to th e class representative and a prospective intervenor, and attorneys’ fees and costs.
As the Court is aware, the a dversarial nature of this proceeding con tinued even after a settlement was reached. In an effort to facilita te notice to the Settlem ent Class, Class Counse l attempted to com pel production of the com puterized booking records from the County. The Court denied this request, and the Defendants produced the paper booking sheets for members of the class. ( See, Docket Entry 106). Those booking sheets, however, were in som e cases incomplete in that they did not contain proper contact inform ation for m any class m embers. Additionally, the Defendants provided Cla ss Counsel several thousand booking sheets for individuals who were not members of the class because they were charged with felonies or were already convicted when they entered the custody of the Schenectady County Jail. Class Counsel accordingly sought, an d received, leave of Co urt to delay the comm encement of the claim s period, and then went through all 6,500 booking sh eets by hand to determ ine who was, and was not, a m ember of the Class. Aft er this revi ew, Class Counsel determ ined that there were approximately 3,245 class members, and commenced the Notice Program.
Starting in early January, 2007, the Settlem ent Administrator mailed notice of the settlement (the “long f orm” notice”) (exhib it B to Keach affidavit) to all m embers of the Settlement Class. Addition ally, Class Counsel placed a su mmary of the long-form notice (th e “short-form notice”) in the Al bany Times-Union and Schenectady Gazette (exhibit C to Keach
3

affidavit), and also set up a settlem ent website, www.scjsettlement.com, which contained copies of the notices and other court documents. The Se ttlement Administrator also maintained a toll free telephone number for individuals to call in and re ceive copies the s ettlement notice or ask questions.
A sizable majority of the in itial mailing of the long -form notices were re turned as undeliverable. The Settlem ent Administrator then forwarded the notice to altern ative addresses contained on Schenectady County’s booking records. For instance, detainees would often have multiple bookings, with m ultiple addresses listed. Deta inees would also som etimes have alternative contact information, such as attorneys or next of ki n, on their booking sheets. W hen notices were returned as being undeliverable, the Settlement Administrator then sent notices to these alternative addresses. Many of those noti ces were also returned as being undeliverable, and the Settlement Administrator then used a nationa l locator database, as well as Schenectady Department of Social Services re cords, to continue their locatio n efforts. Lead C lass Counsel also fielded a range of questions on the Settle ment, both over the phone and in writing, and als o supplied class notices and claim forms to many individuals.
As the initial claims period came to an end, counsel for both parties was concerned about the rate of participation in the Settlement, and sought leave of Court to extend the claims period for 30 days. During that tim e, Lead Class Counse l began, or continued, supplem ental efforts to locate absent class members. A phone bank was set up, and all members of the Settlement Class who listed a telephone number on their booking sheets, either for themselves or a contact person, were contacted by either Attorney Keach, his paralegal, or an intern in his office. Clas s Counsel also supervised efforts to locate Class Mem bers who were incarcerated by attem pting to locate them on the New York State Departm ent of Correctional Services website. Finally, during the
4

final days of the Notice cam paign, Attorney Keach spent two days in the Ham ilton Hill area of Schenectady attempting to facilitate additional claims on the Settlement. The first day Attorney Keach spent walking on foot through Ha milton Hill, handing out class notices, claim for ms and handbills, and assisting individuals that he spoke with to determ ine whether or not they were members of the Settlement Class.1 The second day, Attorney Keach made himself available at a community organization in Schene ctady (Jobs, Etc.) to ans wer questions from class m embers and assist individuals with filing claims.
The claims period concluded on June 5, 2007. As of that date, 861 claims had been filed on the Settlement Fund from individuals for whom there is a Schenectady County Jail booking sheet showing that individual is a class m ember. Fourteen late claim s have been filed on the Settlement as of July 5, 2007. Addition ally, 146 claims were receiv ed from individuals who were initially determined not to be m embers of the Settlement Class. E ach of those individuals received a letter informing them that their claim was invalid, and that they would have to subm it additional information to be considered a class me mber. (Exhibit D). Class Counsel has, and is presently, contacting these indivi duals to seek more inform ation about their situation; som e individuals who were initially b elieved to not be class members submitted information showing that they w ere. In add ition, the Defendants submitted provided additional documentation for these individuals, with m any, as th e result of that add itional information, added to the list of valid claims.2 These efforts will continue up until the time of final approval.
1 During this first day, Attorney Keach was accompanied by Plummer Bradley, a community activist who also wrote to the Court in support of Class Counsel’s efforts to prosecute this action. During the course of his time on Hamilton Hill, Attorney Keach spoke to several individuals who were unaware of their membership in the Class, including one gentleman who could not read, and assisted them in filing claims. 2 Class Counsel will file affidavits from the Settlement Administrator and Website Administrator as part of their supplemental submission on Friday, July 27, 2007.
5

Only two individuals have opt ed out of the settlem ent, and one untimely objection was filed by Class Mem ber Keith Harris. Mr. Harris’ le tter to the Court did not reflect the basis for his objection, only the he “objects ” and “intends to appear” at the Final Approval Hearing. 3 Currently, 26.5% of the class filed claim s on th e settlement. W hile Class Counsel plans to provide the Court with a final class list at the time of the Fi nal Approval Hearing, they believe, based on current claims, that class members will receive between $1,900 and $2,000 as their pro rata share of the Settlement Fund. IV. Argument
POINT I THE COURT SHOULD APPROVE THE CLASS ACTION SETTLEMENT, AS THE
SETTLEMENT IS FAR, REASONABLE AND ADEQUATE, AND IS NOT THE PRODUCT OF COLLUSION
A court must approve the settlem ent of a cla ss action before it can take effect. “Before such a settlem ent may be approved, the distri ct court must deter mine that a class ac tion settlement is fair, adequate, and reasonable, and not a product of collusion.” Joel A. v. Guiliani, 218 F.3d 132, 138 (2d Cir. 2000). The fairness, ade quacy, and reasonableness of the settlem ent is often called “substantive fairness,” and the issue of possible collusion is known as “procedural fairness.” In Re Holocaust Vic tim Asset Litig., 105 F.Supp.2d 139, 145 (E.D.N.Y. 2000). In evaluating procedural fairness, courts consider “the negotiating pro cess, examined in light of the experience of counsel, the vigor with which th e case was prosecuted, and the coercion or collusion that m ay have m arred the negotiations them selves.” Malachman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983). In evaluating substantive fairness, courts consid er the nine factors enumerated in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974):
3 Mr. Harris is presently incarcerated in the Five Points Correctional Facility on Robbery charges, and is not eligible for parole until next year. Exhibit G.
6

1) the complexity, expense and likely duration of the litigation; 2) the reaction of the class to the settlement; 3) the stag e of the proceed ings and the amount of discovery completed; 4) the risks of establishing liability; 5) th e risks of establishing damages; 6) the risks of maintaining the class action through trial; 7) the ability of the defendants to w ithstand a greater judgm ent; 8) the range of reasonableness of the settlement fund in light of the best possible recovery; 9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
Id., at 463 (citations om itted). Finally, “it is not a district judge’s job to dictate the terms of a
class settlement; he should appr ove or disapprove a proposed ag reement as it is placed before
him and should not take it upon himself to m odify the terms.” In Re Warner Communications
Sec. Litig., 798 F.2d 35, 37 (2d Cir. 1986).
A. The Settlement is Procedurally Fair
The conduct of counsel in this litigation, and during settlement ne gotiations, leaves no
doubt that the settlem ent was achieved as th e result of lengthy, adversarial and difficult
negotiations. These negotiations were conducted both during and after substantial discovery had
been completed by the parties. The parties enga ged in settlement negotiations, on and off, for
approximately eighteen months, and participated in some of these negotiations before Magistrate
Judge Treece. Despite agreeing on the m onetary terms of the Settlement in November 2006, the
parties spent several months arguing about the language of the Settlement Agreement, injunctive
relief provisions, notice provisions, the timing of the settlement and the provision of attorneys’ fees to Class Counsel. 4 On one occasion, the D istrict Court became directly involved in these
issues.
4 As will be detailed later, the percentage agreed upon for attorneys’ fees was based on the percentage discussed, and awarded, in Nilsen v. York County, 400 F. Supp.2d 266 (D. Me. 2005). Specifically, the District of Maine provided a 25% attorneys’ fee in a common fund strip search settlement, utilizing a “market-mimicking analysis.” Id., at 283. The parties in this action agreed to pay 26% of the fund as an award of attorneys’ fees, with the additional percentage being intended to compensate for pre-settlement litigation costs.
7

These negotiations were conducted by “experi enced counsel” who engaged in “the discovery necessary to effective repres entation of the class’s in terests.” Maley v. Del Global Technologies Corp., 186 F.Supp.2d 358, 366 (S.D.N.Y. 2002). They w ere also “extensive, hard fought and took place at arm ’s length between e xperienced and skilled attorneys,” as they occurred over a period of several months, involve d many meetings and tele conferences with all counsel, and involved the Defenda nts’ insurance carriers. Id. “In this context, courts routinely add the voice of experienced counsel to the m ix of considered factors.” Id. Here, counsel for both parties recommend to the Court that it finally approve the pr oposed class action settlement. Class Counsel also co nfirms for the Cour t that the m anner in which this settlement was negotiated was highly adversarial; so adversarial that Class C ounsel was concerned that the Settlement Agreement would not be finali zed and approved by the Schenectady County Legislature.5
Accordingly, the parties at all times were acting in a procedurally fair, arm s-length manner, and there is no hint of collusion to the Settlement. The Settle ment is thus procedurally fair.
B. The Settlement is Substantively Fair. The Plaintiffs respectfully suggest to the Court that, when applying the Grinnell factors to
the Settlement, the overw helming majority of those factor s strongly f avor a finding that the Settlement is substantively fair to the Class and should be approved.
1. Complexity, Expense and Likely Duration of Litigation
5 As the Court is aware, there was a very serious disagreement over the timing of the Settlement that almost derailed negotiations. Additionally, the Settlement was vociferously opposed by several members of the Schenectady County Legislature who were quoted in the Schenectady Gazette as referring to Class Counsel as being “gangsters in three piece suits” and being “shaken down.”
8

The Plaintiffs respectfully suggest that this factor strongly favors the final approval of the Settlement. While this action was s ettled prior to the Plaintiffs’ moving for class certification, the underlying litigation was complex, and would likely become more complex as it progressed. The parties had rou tinely applied to Judg e Treece for intervention in d iscovery disputes, including disputes over the costs of docum ent production, the application of the attorney-client privilege and work product doctr ine, the failure of Nichole McDaniel to app ear for her deposition and the consequences of that failure, and discovery of the nam es of class m embers. Some of these disputes led to appeals to the Di strict Court, and the Defe ndants also moved for Summary Judgment on service issues and the PLRA . The Defendants’ request for perm ission to apply to the Second Circuit for an interlocutor y appeal, pursuant to 28 U.S.C. Sec. 1292(b), was pending at the time settlement negotiations began in earnest.
Going forward, th e Plaintiffs faced the addi tional burden and expens e of additio nal discovery, filing a m otion for class certification, trying the case as to liability, if summary judgment was not available. In all likelihood, the Defendants would have appealed, or attempted to appeal, any num ber of disput ed issues, including taking an interlocutory appeal of any qualified immunity issues as to the individual Defendants.
Even after the liability issues would have been resolved, the parties would have then had to address the damages phase of the case, which may have required determinations of individual damages for each class member. Accordingly, “[t]he potential for this litigation to result in great expense and to continue for a l ong time suggest that settlem ent is in the best interests of the Class.” Slomovics v. All For A Dollar, 906 F. Supp. 146 (S.D.N.Y. 1995), and the first Grinnell factor favors final approval of the Settlement.
2. Reaction of the Class to the Settlement
9

The Class’s reaction to the Settle ment also favors final approval. Only one class member, out of 3,200, has objected to the Settlem ent, and his objection was not timely filed and does not state the basis for his objection. Only two individuals filed a request for exclusion. One class member, Plummer Bradley, wrote to the Court to praise the Settlem ent and the efforts of Class Counsel. (Exhibit F). “It is well settled that the reaction of the class to the settlem ent is perhaps the most significant factor to be weighed in considering its adequacy. In fact, the lack of objections may well e vidence the fairness of the se ttlement” Maley, 186 F. Supp.2d at 362 (citations omitted). Other cases have held that relatively low numbers of objectors are indicative of the adequacy of the settlem ent. See, D’Amato v. Deutsche Bank, 296 F.3d 78, 86 (2d Cir. 2001) (18 objectors of 27,883 class no tices weighed in favor of s ettlement). The lack of objectors and opt-outs in this case, therefore, shows that the reaction of the class to the settlement is extremely favorable.
Additionally, the num ber of claims filed on the Settlement is comm ensurate with, or greater, than claim s rates in other strip se arch cases. Here, approxim ately 26.5% of the Settlement Class has filed a claim . This percenta ge will likely rise slightly as class counsel continues to investigate claims that initially appear invalid. This claims rate is comparable to the claims rates achieved by Class Cou nsel in other st rip search cases in this District, including a 28% claims rate in the Rensselaer County Ja il case and 29% in the Montgomery County Jail case. (Keach Aff., ¶ 5). This claims rate is also far higher th an other recent strip search settlements in New York, and slightly higher th an others from other judicial districts. See, McBean v. City of New York, 233 F.R.D. 377, 381-2 (S.D.N.Y. 2006) (3,402 of 40,352, or 8.4%, of class members made valid claims); Doan v. Watson, 2002 WL 31730917 (S.D. Ind. December 4, 2002) (619 of 2,591 class members, or 24%); Eddleman v. Jefferson County, No. 91-CV 144-J
10

(W.D. Ky.) (Exhibit H, p. 7) (50,000 class no tices, yielding approximately 12,000 claims; 24% claims rate). Class Counsel respectfully suggests to the Court that the claims rate in this case has been achieved because of counsel’s extensive notice efforts that go well beyond the m ailing of a written notice and newspaper publication. The fact that the class m embers responded and made claims at a high rate, co upled with the lim ited number of opt-outs and objectors, shows that the reaction of the class to the proposed settlement has been overwhelmingly positive.
3. Stage of Proceedings and Amount of Discovery Completed The third Grinnell factor also favors approval of the Settlement. This action was the subject of extensive discovery at th e time it was resolv ed, with the Pla intiffs taking extensive deposition testimony of the Jail co mmanders and corrections officers. Addition ally, Class Counsel compelled production of all class m ember booking sheets, and also received a decision from the Court allowing them to talk to current SCJ Corrections Officers outside of the presence of Defendants’ counsel. The P laintiffs also successfully defended th e Defendants’ summ ary judgment motion regarding the Prisoners’ Litigation Reform Act. “The stage of the p roceedings and the amount of discovery com pleted is another factor that may be considered in determ ining the fairness, reasonableness and adequacy of a settlement. To approve a settlement, however, the Court need not find that the parties ha ve engaged in extensive discovery.” Maley, 186 F. Supp.2d at 363. Final approval of a class action settlem ent is appropriate where “Plaintiffs’ Counsel possessed a record sufficient to perm it evaluation of Plaintiffs’ cl aims, the strengths of the defenses asserted by Defendants, and the value of Plaintiffs’ causes of action for purposes of settlement.” Id., at 364. Class Counsel respectfully sugg ests that they have taken sufficient discovery to substantiate their request for Fina l Approval, and that application of the third Grinnell factors favors the approval of the settlement.
11

4. The Risks of Establishing Liability a nd Damages, and Risk of Maintaining Class Action Through Trial
Class Counsel admits that the fourth Grinnell factor, risk establishing liability, does not significantly favor Final Approval. 6 In the afterm ath of this Court’s decision in Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) (certif ication of strip search class action where Judge Hurd held that a so-called “change out” sim ilar to that descri bed in Robert Elwell’s testimony was unconstitutional absent reasonable suspicion) and In Re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006 (overruling denial of class certification in strip search class action), Class Counsel does not believe that establishing liability and receiving class certification were significant obstacles in this litigation. They also do not believe that the PLRA would preclude class members from receiving compensation for violation of their c onstitutional rights by the County, s ee, Kelsey v. County of Schoharie, 2005 WL 1972557 (N.D.N.Y. Augus t 5, 2005), despite the existen ce of a District C ourt case to the contrary ( Cox v. Malone, 199 F.Supp.2d 235 (S.D.N.Y 2002)). The only possible defense the Defendants could have raised was that they relied upon their former written policies, which were revised at least twice during the class period, and that those policies were a ppropriate. Class Counsel does not believe this would have been a successful defense, but “it is enough to observe, howeve r, that there are no guaranties in life, and while it app ears likely that plaintiffs would be able to establish liability at trial, things change.” McBean v. City of New York, 233 F.R.D. 337, 387 (S.D.N.Y. 2006).
The risk of estab lishing damages for each individual class member, however, is another story entirely. The possibility that some members of the Settlement Class, especially individuals with extensive criminal histories and/or a history of incarceration, would receive nom inal damages from a jury or special m aster. See, Shain v. E llison, 356 F.3d 211 (2d Cir. 2004)
6 Class Counsel believes that the risks associated with this action were much higher at the time it was filed, June 2004, and discusses this fact in their arguments about attorneys’ fees.
12

(awarding nominal damages to an attorney who was strip searched at the Nassau County Jail); McBean, 233 F.R.D. 377 at 387 (discussing this factor in a strip search class action). Certainly, for many class members, receiving $2,000 from a jury for being illegally strip searched is not a certainty, and would be subjected to a vigorous defense by the Defendants. If the case were not to settle, each class m ember would, in all li kelihood, be required to prove their own e motional distress at trial. This would be an inhere ntly subjective and inex act undertaking, and woul d expose each class member to substantial uncerta inty, the risk of gettin g only a nom inal award, and the addition al distress of having testif y. This assumes, of course, that the Court would certify this action for damages, and that a class wide damages trial, or individual inquests, would be manageable.
The Court h ere need not “decid e the merits of the case, ” Carlson v. A merican Brands, Inc., 450 U.S. 79, 88, n. 14 (1981), rath er, the Court must only “weigh the likelihood of success by the plain tiff class ag ainst the re lief offered by the settlem ent.” Marisol A. v. Giulani, 185 F.R.D. 152, 164 (S.D.N.Y. 1999). The relief provid ed to Class Members is a paym ent that will likely exceed $1,900.00, which is a significant and substantial damages award for a class member who need do nothing m ore than fill out a nd mail a claim form. It is also well in excess of other strip search settlements that have recently been settled in New York State, including one negotiated by Class Counsel in this action. See, Kahler v. County of Rensselaer, 03CV1324 (N.D.N.Y.) ($1,000.00 per claim) (Keach aff. para. 5); McBean v. City of New York, 233 F.R.D. at 381 ($750 per claim ant; $1,000 for claimants strip searched more than once); Maneely v. City of Newburgh, 01CV2600(CLB) (S.D.N.Y.) (cited in McBean at 390-91; $1,000 per claim ant); Dodge v. County of Orange, 02CV769 (S.D.N.Y.) ($600,000 shar ed by 18,000 class m embers) (exhibit I). Other settlements from outside this Judicial Circuit also paid $1,000 per claim . See,
13

Doan v. Watson, 2002 WL31730917, 99-4-C-B/S (S.D. Ind. Dec. 4, 2002) ($1,000 per claim); Moser v. A nderson, No. 93-634-B (D.N.H.) ($1,000 per class member) (Keach Aff., Ex. 5). Therefore, the relatively low risks of proving liability in this case, when considered together with the substantial relief offered to the class and the inherent risk and uncertainty of having to prove emotional distress dam ages, show that the fourth, fifth and sixth Grinnell factors favor the approval of the settlement here.
5. Ability of the Defendants to Withstand a Greater Judgment Class Counsel acknowledges that Schenectady County can withstand a greater judgment. While this settlem ent has larg ely exhausted the County’s insura nce policy lim its, the County, upon information and belief, agreed to pay som e public m oney (less th an 10% of the total settlement) into the Settlem ent Fund. Having the County sustain a larger judgm ent could, of course, take money away from its other important governmental responsibilities, or require a tax increase. “[F]airness does not require that the [municipal defendant] empty its coffers before this Court will approve a settlem ent….[T]he ability of the defendan ts to pay m ore, on its own, does not render the settlem ent unfair, especially where the other Grinnell factors favor approval.” McBean, 233 F.R.D. at 388.
6. The Range of Reasonableness of the Settlement Fund The eighth Grinnell factor, the range of reasonableness of the settlement fund in light of the best possible recovery, taken together with the ninth factor, the range of reasonableness of the settlement fund in light of all of the attendant risk of litigation, favors approval of the settlement. As detailed previously in this memorandum, the anticipated payout to class members ($1,900 to $2,000) exceeds the payouts in other similar class action s. It also far exceeds th e possible recovery that some class members would receive in the event they are awarded nominal
14

damages. While some percentage of class m embers could achieve verdicts well in excess of the settlement payment, “the settlement allows individuals to opt out and pursue their own claim s.” McBean, 233 F.R.D. at 388. Class Couns el respectfully suggests that the Proposed Settlement is within the range of reasonableness, and should be finally approved by the Court.
POINT II CLASS COUNSEL’S REQUEST FOR ATTORNEYS’ FEES AND EXPENSES IS
REASONABLE AND SHOULD BE APPROVED BY THE COURT Class counsel seeks an award of attorneys’ fees and costs in the am ount of $650,000, or 26% of the common fund created by the Settlem ent. Aft er extensive negotiation, defendants agreed to pay this am ount of the fund as at torneys’ fees and not oppose class counsel’s application. See, Parties’ Settlement Agreement. Th e Court, at this ju ncture, must ascertain what a fair and reasonable fee would be to compensate class counsel. Where class counsel create a common fund, courts use either the ‘lodestar’ m ethod’ or the ‘percentage of the fund’ m ethod.” Walmart Stores v. Visa U.S.A., 396 F.3d 96, 121 (2d Cir. 2005). See also, Goldberger v. Integrated Resources, 209 F.3d 43 (2d Cir. 2000). “The trend in this Circuit is toward the percentage m ethod, which “directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation.” Walmart, 396 F.3d at 121. “In contrast, the lodestar create[s] an unanticipated disincentive to early settlem ents, tempt[s] lawyers to run up their hours, and com pel[s] district courts to engage in gim let-eyed review of line-ite m fee audits. ”” Id. (quoting, Baffa v. Donaldson Lufkin & Jenrette Secs. Corp., 2002 WL 1315603, at *1 (S.D.N.Y. June 17, 2002). Judicial economy and efficiency is fostered by reasonable settlem ents, and a “prom pt and efficient attorney who achieve s a f air settlement without extensive litigation serves both his client and the interests of justice.” McKenzie Construction Inc. v. Maynard, 758 F.2d 97, 101-2
15

(3d Cir. 1985). “In th e context of a com plex class actio n, early s ettlement has far reaching benefits in the judicial system.” Maley, 186 F. Supp.2d at 373.
Here, class counsel requests that the Court ev aluate the requested fees and expenses as a reasonable percentage of the $2.5 million common fund it successfully created. Not only is it the overwhelming trend in the district courts of this Ci rcuit to follow the pe rcentage of the fund approach, but judges in two of th e more recent, settled strip sear ch cases followed this approach as well. Marriott v. County of Montgomery, 03 Civ. 0531 (DNH)(D EP) (N.D.N.Y.); Nilsen v. York County, 400 F.Supp.2d 266 (D. Me. 2005).
A. Application of the “Goldberger” Factors Support the Requested Award of Attorneys’ Fees.
In evaluating the reasonableness of the pr oposed attorneys’ fees in a comm on fund settlement, a District Court should look to the following factors:
(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation …; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations
Goldberger, 209 F.3d at 50. Class Counsel respectfully suggests that these “Goldberger factors” support the reasonableness of Class Counsel’s fee application. A(1) The Time and Labor expended by Counsel
Counsel has spent hundreds of hours of attorn ey time litigating this action, and several hundred more in lengthy settlem ent negotiations. See attached Fee Affirmations. Plaintiffs’ Class Counsel developed, litigated and successf ully negotiated this action by them selves,
16

expending substantial time and effort.” Maley, 186 F. Supp.2d at 371. Class counsel will also continue to resolve the claims of self-identifiers seeking to obtain an award, ad minister the conclusion of the settlem ent and locate tho se class members who do not in itially receive their settlement checks. They also faced a com petent and determ ined adversary who aggressiv ely litigated this action f or over a y ear, and continued to aggressively represent his clients during lengthy and protracted settlement negotiations that went for nearly a year and one-half. In fact, it was Defendants’ couns el who in itially conceived of the Prisoners Litigation Reform Act (PLRA) as a partial defense to a strip search case. Although Mr. Greagan’s idea was later coopted by defense counsel in anot her case and presented to Judge Homer before being raised in this action, ( See, Kelsey v. County of Schoharie, 04 Civ. 299 (LEK)(DRH) (N.D.N.Y)), it was this type of creative and smart litigation that caused class counsel to spend much time and labor prosecuting this case. A(2) The Magnitude and Complexities of the Litigation
This litigation lasted over three y ears and involved extensive discovery. See Docket Sheet. Like the Nilsen case, this case involved significant factual disput es as to whether the corrections officers actually viewed the arrest ees’ naked bodies while they changed into jail clothing. Nilsen, 400 F.Supp.2d at 285. Also, there was addition al complexity due to the individualized nature of the dam ages suffered by the plaintiffs and various insurance coverage issues that cropped up. Id. Finally, it is always ch allenging to represent a class of thousands of relatively disenfranchised, transient individuals with which it is often very difficult to reach and communicate. A(3) The Risk of the Litigation
17

At the time this action started, Class Counsel also took considerable risk in prosecuting this action. Judge Hurd had not rendered his decision on cla ss certification and the legality of “change outs” in Marriott, this District had not decided the a pplication of the PLRA to a strip search class action, and the Second Circuit had not yet rectified the E astern District of New York’s denial of class certification in Augustin v. Jablonsky¸ 99-CV-3126, 2001 W L 770839, at *13 (E.D.N.Y. Mar.8, 2001) For a good portion of the class period, S chenectady County had changed its blanket strip search policy to on e that, at f irst blush, arguably could have been considered constitutional (e.g. the “change out”). In fact, in a recent cas e, these “change outs” were found not to be in viol ation of the Constitution. See, Steinberg v. County of Rockland, 04 Civ. 4889 (CLB) (S.D.N.Y. May 20, 2005) (bench deci sion) (Keach Aff., Ex. K). However, one of the determinative factors here was that the County’s 30(b)(6) witness admitted that the policy for a part of the class period was to strip search all admittees and then detailed the use of “change outs” during the remainder of the class period.
Considering the credibility ju rors often give to law enforcem ent testimony and the fact that it would have been difficult for the plainti ffs to “prove and recover dam ages for harms that were often dignitary rather than pecuniary,” class counsel faced a substantial risk of nonpayment. Id.
As noted by the Southern District of New York in a recent class action settlement: Plaintiffs’ Class Counsel have received no compensation during the course of this litigation despite having m ade a significant time commitment and incurred significant expenses to bring this matter to a successful conclusion for the benefit of the Class. Any fe e award or expense reim bursement to Plaintiffs’ Class Counsel has always been contingent on the result achieved a nd on this Court’s exercise of its discretion in m aking any awa rd. Class Counsel undertook a substantial risk of absolute non-payment in prosecuting this action, for which they should be adequately compensated.
18

Maley, 186 F. Supp.2d at 372 (quotations omitted). See also, City of Detr oit v. Grinnell Corp., 356 F. Supp. 1380 (S.D.N.Y. 1972), aff’d in part and rev’d in part on other grounds, 495 F.2d 448 (2d Cir. 1974) (“No one expects a lawyer whose compensation is contingent upon his success to charge, when successful, as little as he would charge a client who in advance has agreed to pay for his services, regardless of success”). In short, Class Counsel maintains that the risks associated with difficult civil rights litigation, and the complexities of this action, support their request for attorneys’ fees, as agreed to in the Settlement Agreement. A(4) The Quality of Representation
Additionally, Class Counsel resp ectfully suggests that the qual ity of their representation of the class supports their request as well. “The criti cal element in determining the appropriate fee to be awarded class counsel out of a common fund is the result obtained for the Class through the efforts of such counsel.” Maley, 186 F. Supp.2d at 374. Here, the monetary results achieved for the class exceed those paid out in other recent strip search class actions, including McBean, where class m embers received $75 0 or $1,000 per claim , and especially Dodge v. County of Orange, where Class Counsel took over half of $1.2 m illion settlement fund as attorneys’ fees and left 18,000 class mem bers with very little recovery. The public policy of enforcing the nation’s civil rights laws and protecting som e of the poorest members of our community from a practice described by one Circuit Court as being “dem eaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, s ignifying degradation and submission,” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983), also strongly favors the requested award of attorneys’ fees. See, Maley, 186 F. Supp.2d at 373-74.
Finally, the reaction of the clas s to the Sett lement also deserves con sideration by the Court. Despite the Notice Program and healthy claims rate, not one single claim ant filed an
19

objection to Class Counsel’s request for attorn eys’ fees. “As was tr ue with the underlying settlement, this overwhe lmingly positive response by the Class a ttests to the appr oval of the Class with respect to the Settlem ent and the fee and expense application.” Maley, 186 F. Supp.2d at 374.
A(5) The Requested Percentage of the Settlement Fund is Fa ir and Reasonable, and is also Commensurate with Other Settlements. The Court, in considering the reasonable percentage of the Settlem ent Fund to award as attorneys’ fees, must look to both the percentage of the fund sought and the collective lodestar of Class Counsel. As m entioned above, the twenty-six percent attorneys’ fee negotiated as part of the Settlement Agreement was bas ed on the recent Dis trict Court ru ling in Nilsen.. 400 F. Supp.2d at 266. In Nilsen, District Judge Hornby did what appe ars to be the m ost extensive, published analysis of other strip search settlements and attorneys’ fees, and concluded that, based on a “m arket-oriented approach” an appropriate at torneys’ fee in a s trip search class action is 25%. Id. at 283. Ack nowledging that a “m ultifactor approach…offers little p redictability to either the awarding court, or the lawyers w ho seek fee awards,” Judge Hornby applied the “market mimicking approach” ado pted by the U.S. Court of Appeals for the Seventh Circuit because it is “most amenable to predictability” and it “minimizes the difficulty and arbitrariness of assessing the reasonableness of a given fee.” Id., at 276, 278-79.
Judge Hornby’s analysis is in accord with case preceden t in this judicial circu it, where courts “have awarded fees ranging from 15% to 50% of the settlem ent fund.” Maley, 186 F. Supp.2d at 370 (awarding 33 1/ 3 % of common fund). See also, In re Lloyd’s American Trust Fund Litig., 2002 WL 31663577 (S.D.N.Y. November 26, 2002) (awarding 28% of a $20 million common fund); Baffa v. Donaldson Lufkin & Jenrette Sec. Co., 2002 WL 1315603 (S.D.N.Y.
20

November 26, 2002) (awarding 30 % of a $3 m illion common fund) ( exhibit N) In re Araki s,
supra, (25% of a $24 million common fund); In re American Bank Note, 127 F.Supp.2d 418
S.D.N.Y. 2001) (awarding 25% of $ 14.85 million fund). In another strip search class action case
also handled by class counsel, Marriott v. County of Montgomery, District Judge Hurd awarded an attorneys’ fee of 30% of the $2.0 m illion settlement fund.7 The Court should also consider,
when awarding an app ropriate percentage, the extens ive injunctive relief achieved by Class
Counsel in the Settlement Agreement. E.g. Wal-Mart Stores, 396 F.3d at 121.
As the Court is undoubtedly aware, the provi sion of attorneys’ fees in the settlem ent
agreement, just like ev ery other issue in this case, was hotly contested and aggressively
negotiated. The parties finally agreed on the percentage fee based on a discussion of the Nilsen
decision, with an additional percentage added to compensate for litigation costs. The Defendants
agreed to the payment of this fee, and also agreed not to oppos e Class Counsel’s application for
attorneys’ fees. See, Settlement Agreement.
In considering a percentage at torney fee in a cla ss action, the Court m ust also consider a
“’cross-check’ to a percentage award,” which involves taking Class Counsel’s collective lodestar
and dividing it into the proposed fund, which yields the “mulitipier.” Wal-Mart Stores, 396 F.3d
at 123, n. 27. Here, considering the approxim ate hourly attorneys’ fees to date, class counsel
seeks a modest multiplier of approximately 2.3, depending on the total size of counsel’s lodes tar
at the time of final approval. This is well w ithin the range of reasonableness for a class action
7 Class Counsel acknowledges that Judge McAvoy awarded a much smaller percentage of the Settlement Fund in Kahler v. County of Rensselaer than that requested here. The Kahler Settlement Fund was $2.7 million, with a reversionary interest to the County in the event the Fund was not exhausted after class members were awarded $1,000 per claim. Judge McAvoy awarded class counsel their lodestar at prevailing rates for each attorney’s home jurisdiction, $370,000, or approximately 13.7% of the Settlement Fund. The Nilsen case mistakenly evaluates the settlement in Kahler, and presents the percentage of attorneys’ fees paid as much higher than it actually was because it mistakenly included $73,000 in reimbursed expenses and administrative costs, allowed under Judge McAvoy’s Final Approval Order, in its report on the total attorneys’ fees paid in the Kahler settlement.
Judge McAvoy did not award any multiplier in the Kahler action. Class counsel did not appeal Judge McAvoy’s attorneys’ fees ruling because it would have delayed distribution of settlement payments to class members.
21

settlement. In Wal-Mart, the Second Circuit ap proved a multiplier of 3.5. Other Courts have approved multipliers far in excess of the one sought here by class couns el. See, In Re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1998) (court awarded m ultiplier of 3.97, noting that “[i]n recent years multipliers of between 3 and 4.5 have becom e common); Maley, 186 F. Supp.2d at 371 (awarding a “m odest” multiplier of 4.65). Judge Hurd’s final approval of $600,000 in attorneys’ fees and costs (like here, the am ount agreed to by the parties) amounted to a multiplier of 1.4 in Marriott v. County of Montgomery.
Class Counsel respectf ully suggests to the Court that the counsel fee requested is reasonable in light of the extensive tim e and labor expended by counsel, the m agnitude of the litigation, the risks ta ken in the litigation, the monetary results achieved for the class, and the amount of the fee in proportion to the m onetary settlement and injunctive relief achieved. Class Counsel now requests that the Court approve the requested fee.
POINT III THE INCENTIVE AWARDS TO LESSIE DAVIES AND WILLIAM SMITH
SHOULD BE APPROVED The Settlement Agreement provides for incentive awards for Class Representative Lessie Davies of $12,000, and an additional payment for William Smith of $1,500 above his pro rata share of the Settlement Fund. Class Counsel maintains that Lessie Davies provided substantial support to this litigation by serving as the Class Representative, and fulfilling her commitments in that regard. This action initially had two Class Representatives, one of whom, Nichole McDaniel, abdicated her responsibilities to the Class and failed, repeatedly, to appear for her deposition. While Lessie Davies left the area to live in the Bronx, she took her responsibilities to the Class seriously, stayed in touch with Class Counsel and, despite living in a homeless shelter in New York City at the time, appeared as scheduled to be deposed by the Defendants. Had Miss
22

Davies not fulfilled her responsibilities to the Class, this action may well have had a different outcome. Additionally, William Smith agreed to serve as a class representative in 2005, and provided Class Counsel with assistance in locating and speaking to members of the Class. While Mr. Smith’s intervention was eventually unnecessary because of the efforts to resolve this action, Class Counsel maintains that he is entitled to a modest incentive payment for his assistance.
The awards to these individuals are reasonable and should be approved. The law recognizes that it is appropriate to make modest awards in the range of $1,000 to $20,000 in recognition of the services that such plaintiffs perform in a successful class action. See, Roberts v. Texaco, 979 F. Supp. 185, 205 (S.D.N.Y. 1997); Genden v. Merrill Lynch, 700 F. Supp. 208, 210 (S.D.N.Y. 1998) (granting incentive awards of $20,085 for each class representative). Class Counsel respectfully requests that these incentive awards be approved. V. Conclusion
For the foregoing reasons, Plaintiff’s motion for final approval of the class action settlement should be granted in its entirety.

By:
Bar Bruce Bar 80 New (212)
Bar 1040 P.O. Am (518)

Beranbaum Menken Ben-Asher & Bierman LLP __________/s/_____________________ Jason J. Rozger
Roll # 105874 E. Menken
Roll # 104942 Pine Street, 32nd Fl.
York, NY 10005 509-1616
Elmer R. Keach, III, Esq. Roll # 601537 Riverfront Center Box 70 sterdam, NY 12010 434-1718
23

ATTORNE

YS FOR PLAINTIFFS AND PROPOSED CLASS

24

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others silnilarly situated,

-against-

Plaintiffs,

COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff's Department,

Defendants.

CA No. 04-CV-0757

MEMORANDUM OF LAW

WILLIAM J. GREAGAN, ESQ.
GOLDBERG SEGALLA LLP
Attorneys for Defendants 7 Southwoods Boulevard, Suite 204 Albany, New York 12211 (518) 463-5400

TABLE OF CONTENTS

Page No.

PRELIMINARY STATEMENT ................................................................

2

STATEMENT OF FACTS..........................................................................

3

ARGUMENT

I. Standard for summary judgment...................................................

3

II. Plaintiffs failed to personally serve Defendants Buffardi

and Elwell. ........................................................................................

4

III. Defendants Buffardi, Pollard and Elwell are not liable

in their individual capacities. ..........................................................

8

IV. Plaintiffs claims against Buffardi, Pollard and Elwell in

their official capacity must be dismissed because the

plaintiffs have alleged a Monell type claim against the

County...............................................................................................

9

CONCLUSION ............................................................................................

12

WestLaw Cases Attached:

Azzam v. The Travelers Insurance Company, 2000 WL 151906 (NDNY 2000)

Corona v. Lunn, 2002 WL 550963 (SDNY 2000)

Fox v. City of New York, 2004 WL 856299 (SDNY 2002)

LaCorte v. Hudacs, et aI, 1996 WL 590735 (NDNY 1996)

SnaIl v. The City of New York, 1998 WL 960296 (EDNY 1998)

Preliminary Statement 1. Defendants Harry Buffardi and Robert Elwell move for partial summary judgment to dismiss all claims in the plaintiffs' Complaint alleging individual and personal liability against these defendants, as opposed to the claims contained in the Complaint alleging wrongdoing in their professional capacities, upon the grounds that defendants Hany Buffardi and Robert Elwell were never personally served with the SUlnmons and COlnplaint and therefore jurisdiction has not been obtained over them in their individual capacities. 2. Because the Complaint makes no allegations of wrongdoing on the part of these defendants in their individual capacities and there is no evidence that these individual defendants played any role in the activities which give rise to the plaintiff's Con1plaint; the defendants are entitled to dismissal of the Complaint against them in their individual capacities.
2

Statelnent of facts. The Court is respectfully referred to the Affidavits of William J. Greagan, Esq., Hany Buffardi, Gordon Pollard, and Robert Elwell, and the Statement of Material Facts.
Argument I. Standard for summary judgment. Summary judgment is appropriate where "there is no genuine issue as to any material facts ... the moving party is entitled to a judgment as a matter of law" (Fed.R.Civ.P. 56(c)). The moving party bears the initial responsibility of informing the Court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to intenogatories, and adlnissions on file together with any affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact" Celotex Corp. v. Catrett, 477 U.S. 317, 323 106 S. Ct. 2548 (1986). "If the moving party meets the initial burden of showing the absence of the material and triable issue of facts, the burden then Inoves to the opposing party, who Inust present significant probative evidence to support its claim or defense". Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2nd 1551, 1558 (9th Cir. 1991), quoting Richards v. Nielsen Freight Lines, 810 F.2nd 898, 902 (9th Cir. 1987). The non-moving party must go beyond the pleadings and designate facts showing an issue of material fact for trial. Celotex Corp., supra, 477 U.S. at 322-323. Whether a fact is material is governed by the substantive law governing a claim. Burt Rigid Box v. Travelers Prop. Cas. Corp., 302 F.3d 83,90 (2nd Cir. 2002). The "mere
3

existence of a scintilla is evidence" in support of the non-moving party's claim is
insufficient to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 106 S. Ct. 2505 (1986). The party opposing a motion for summary judgment
cannot stand on mere allegations in its pleadings, or simply assert that it will be able to
discredit the moving party's evidence at trial. Fed.R.Civ.P. 56(e); see also T.W. Elec. Servo Inc. V. Pacific Elec. Contractor's Ass'n, 809 F.2nd 626,630 (9th Cir. 1987).
The party opposing the motion must do more than show that there is some
metaphysical doubt as to the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986). Thus, to avoid summary judglTIent, the
non-moving party must come forward with specific facts and significant probative
evidence demonstrating the existence of a genuine issue of facts for trial. Celotex Corp.,
supra, 477 U.S. at 327.
II. Plaintiffs failed to personally serve Defendants Buffardi and Elwell.
The Federal Rules of Civil Procedure directs how service is to be made.
The 4(c)( 1) requires that:
"A SUmlTIOnS shall be served together with a Complaint; the plaintiff is responsible for service of the Summons and Complaint within the time allowed under subdivision (m) and shall furnish the person affecting service with the necessary copies of the Summons and Complaint."
Rule 4(e) provides that:
"Unless otherwise provided by Federal Law, service upon an individual from whom a waiver has not been obtained and filed, other than an instant and incompetent person, may
4

be affected in any judicial district of the United States:
(1) Pursuant to the law of the state in which the District Court is located or in which service is effected, for the service of the Summons upon the defendant upon an action brought in the Court of general jurisdiction of the State; or
(2) By delivering a copy of the Sumlnons and Complaint to the person individually or by leaving copies thereof at the individual's dwelling, house or usual place of abode with some person of suitable age or discretion then residing therein or by delivering a copy of the Summons and COlnplaint to an agent authorized by appointment or by law to receive service of process".
Rule 4(m) provides that:
"If service of the Summons and COlnplaint is not made upon the defendant within 120 days of filing of the Complaint, the Court can on Inotion or on its own initiative after notice to the plaintiffs, shall disiniss the action without prejudice as to the defendant or direct that service be effected within a specific period time; provided that the plaintiff shows good cause for the failure, the Court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)( 1).
New York Civil Practice Law and Rules Section 308
prescribes methods by which person service may be made upon a natural
person:
5

"1. By delivering the Summons within the State of the person to be served; or

2. By delivering the Summons within the State to a person of suitable age and discretion at the actual place of business, dwelling or usual place of abode of the person to be served and by either mailing the Summons to the person to be served at his or her last lmown residence or by mailing the Summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "Personal and Confidential" and not indicating on the outside thereof by return address or otherwise that the communication is froin an attoD1ey or concerns an action against the person to be served, such delivery and mailing to be effected within 20 days of each other; proof of service shall be filed with the clerk of the Court designated in the Summons within 20 days from either such delivery or mailing, whichever is effected later; service shall be complete 10 days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, tiine and place of service, except in Inatriinonial actions for service hereunder may be made in accordance with the provisions of subdivision (a) of Section Two Hundred Thirty Two of the Domestic Relations Law; or

3.

By delivering the Suminons within the State to an

agent for service of the person to be served as

designated under Rule 318, except in matrimonial

actions where service hereunder may be Inade

pursuant to an Order made in accordance with the

provision of subdivision (a) of Section Two

Hundred Thirty Two of the Domestic Relations

Law;

4.

If service under paragraphs one and two cannot be

made with due diligence by affixing the Summons

to the door of either the actual place of business,

dwel1 ing place or usual place of abode within the

State of the person to be served and by either

mailing the summons to such person at his or her

last known address or by mailing the Summons by

6

first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "Personal and Confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within 20 days of each other; proof of such service shall be filed with the Clerk of the Court designated in the Summons within 20 days of either such affixing or mailing, whichever is effected later; service shall be complete 10 days after such filing except in matrimonial actions for service thereunder may be made pursuant to an Order in accordance with the provisions of subdivision (a) of Section Two Hundred Thirty Two of Domestic Relations Law;
5. In such manner as the Court, upon motion without notice, directs, that service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this Section, "actual place of business shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business". "
Review of the Affidavits of Harry Buffardi and Robert Elwell and the Docket in
this action show that there is no evidence that the plaintiffs personally served Harry
Buffardi or Robert Elwell in accordance with either Rule 4 of the Federal Rules of Civil
Procedure or Section 308 of the New York Civil Practice Law and Rules.
According to the Docket, the plaintiff commenced this action by the filing of a
Summons and Complaint on July 19, 2004. Pursuant to Rule 4(m), the time in which to
effect service under the Federal Rules expired on November 16, 2004. Also, as set forth
in the Affidavits of Robert Elwell and Harry Buffardi, no service has been made upon
7

them by substituted service in accord with CPLR §30S. The tilne in which to do so has expired. On this basis alone, defendants Harry Buffardi and Robert Elwell are entitled to a dismissal of all claims held against them in this action in their individual capacities.
Review of the Complaint delnonstrates that it is devoid of any factual basis for the ilnposition of liability against defendants Hany Buffardi, Gordon Pollard and Robert Elwell in their individual capacities. There is no factual allegation of any act on the parts
of defendants Hany Buffardi, Gordon Pollard or Robert Elwell in their individual capacities against the plaintiffs, contained in the Complaint.
III. Defendants Buffardi, Pollard and Elwell are not liable in their individual capacities.
The plaintiffs' Complaint broadly alleges that the individual plaintiffs were illegally strip searched in the course of the booking process at the Schenectady County Jail. On December 7, 2004 defendants served Notices to Admit pursuant to Rule 36 of the Federal Rules of Civil Procedure. Rule 36(a) provides in relevant part that:
"Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer tilne as the Court may allow, or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the parties attorney. Neither party has objected to the admissions sought herein. The time to do so has passed." Review of the admissions of Lessie Davies, the Affidavits of Hany Buffardi, Gordon Pollard and Robert Elwell and a review of the Complaint, shows that none of these individual defendants had anything to do with booking or alleged searches
involving plaintiffs Nichole Marie McDaniel or Lessie Lee Davies.
S

Since there is no genuine issue of material fact relating to liability on the part of Hany Buffardi, Gordon Pollard, or Robert Elwell in their individual capacities, and because Defendant Hany Buffardi and Robert Elwell were never personally served with the Sunlmons and Complaint in this action, these defendants are entitled to a dismissal of the Complaint against thelTI in their individual, as opposed to their official capacities.
IV. Plaintiffs claims against Buffardi, Pollard and Elwell in their official capacity must be dismissed because the plaintiffs have alleged a Monell type claim against the County.
Because the claims here against the individual defendants in their official capacities are functionally equivalent to the plaintiffs' clailTIS against the County, the clailTIs asserted against Mssrs. Buffardi, Pollard, and Elwell in their official capacities should be dismissed. Citing the Supreme Court in Kentucky v. Graham, 473 U.S. 159 (1985), the Northern District has stated:
A claim against a municipal officer acting in his official capacity is, in reality, a claim against the municipal entity itself. Thus, plaintiff's claims against the various police officers in their official capacities are to be treated as a suit against the [municipality]. In that regard, plaintiff's claims against the defendants in their official capacities are dislTIissed. Pritzker v. City of Hudson, 26 F.Supp.2d 433 (NDNY 1998) (internal citation omitted). Based upon the distinction between official and personal capacity claims, "district courts have dislTIissed official-capacity claims against individuals as redundant or unnecessary where Monell claims were also asserted against the entity." SnaIl v. The City of New York, 1998 WL 960296, *4 (EDNY 1998). See also Fox v. City of New York, 2004 WL 856299, *13 (SDNY 2004) (citing Kentucky v. Graham, supra); Corona v. Lunn, 2002
9

WL 550963, *5 (SDNY 2002) ("[S]ince clail11s against state officers acting in their official capacities' generally represent only another way of pleading an action against an entity of which an officer is an agent, summary judgment also will be granted in favor of Lunn on the official capacity claims asserted against her." [internal citations omitted]); Azzan1 v. The Travelers Insurance Company, 2000 WL 151906, *2 (NDNY 2000) ("Plaintiff's official-capacity claims against Hopkins and Foody effectively nan1e City as the real party in interest. Consequently, an official-capacity suit is, in all respects other than nat11e, to be treated as suit against the entity." [internal citation and quotation omitted]); Wallikas v. Harder, 67 F.Supp.2d 82, 83 (NDNY 1999) ("In general, claims against l11unicipal officials in their official capacities are really claims against the municipality and, thus, are redundant when the municipality is also named as a defendant."); Riley v. Town of Bethlehem, 44 F.Supp.2d 451,466-467 (NDNY 1999) ("It is apodictic that clail11s against an individual in his official capacity are to be treated as clail11s against the municipality."); LaCorte v. Hudacs, et al., 1996 WL 590735, *4-5 (NDNY 1996) ("A suit against a municipal officer in her official capacity is functionally equivalent to a suit against the entity of which the officer is an agent. ... Consequently, it would be redundant to allow this suit to proceed against Rensselaer County and the individuals in their official capacities.").
Here, plaintiffs' attorneys left little doubt regarding the nature of plaintiffs' clail11s. At a telephone conference held November 30,2004 before Magistrate Judge Randolph F. Treece, plaintiffs' attorney, Elmer R. Keach, III represented on the record that this claim is not against individuals in any capacity, with the possible
10

exception of the cOlTections officer that strip searched the plaintiffs in the event class
certification is denied, but against the n1unicipality:
That's not how this case is pled, it's not how it's going to be pled, and, you know, I can affinnatively n1ake that representation to the Court, that we're not gonna go out and n1ake individual cOlTections officers defendants in this case. It's a class action against the County for a practice; it's an overarching Monell clailn.
Transcript 11130/04 at 11.
Magistrate Treece restated the plaintiffs' assertions without objection froln
plaintiffs' attoll1eys: "Mr. Greagan, you've heard from Mr. Keach that this is a Monell
claim, it is against the County, it's not against any individual, and he's making this
affirmative representation that he intends not to hold any individual responsible."
Transcript 11130/04 at 12. Later in the conference, Mr. Keach and Magistrate Treece
engaged in the following exchange:
Mr. Keach: I will state on the record with regards to any individual corrections officers that are contacted in an ex parte sense, we will not do so. We will not sue those cOlTections officers.
We have no interest to sue individual cOlTections officers. The only interest that my colleagues and I have is to stop the practice which still continues, by the way - and hold Schenectady County, Schenectady County as compared to individuals, financially responsible for what - for violating the rights of thousands of individuals. That's the goal of this litigation, that's the goal that's communicated in the complaint, and we have no interest to sue individual cOlTections officers here.
11

* * *
The Court: So, Mr. Keach, if I understand this, we go forward to determine class certification. Let's presulne that you do not get it. Then you will proceed to prosecute this on behalf of the named plaintiffs and that there is a possibility with regards to those two of maybe including other parties. But if you get your class certification, this is a Monell claim going right after the County? Mr. Keach: That sums up the plaintiffs' position perfectly, your Honor. Transcript 11130/04 at 19 - 20. Because the plaintiffs have affinnatively represented on the record and to the Court that their claims, insofar as asserted against individuals are, in effect, claims against the County, and because of case law establishing the redundancy of such claims, the claims against Mssrs. Buffardi, Pollard, and Elwell in their official capacities should be dislnissed. Because the plaintiffs have affirmatively represented to the Court they have no intention of pursing claims against Mssrs Buffardi, Pollard, and Elwell personally, claims against these individuals in their personal capacity should also be dismissed.
Conclusion. Since Harry Buffardi and Robert Elwell were never personally served in this action, the Court has no jurisdiction over these defendants in their individual capacities. With respect to the defendants Buffardi, Pollard and Elwell, the plaintiffs' admissions and the defendants' Affidavits show that there is no basis for the imposition of liability on the part of these defendants in their individual capacities or official
12

capacities and, therefore, the Complaint against them should be dismissed on the merits

and with prejudice.

DATED:

Albany, New York January 31, 2005

Bar Roll No. 101847 Goldberg Segalla LLP Attorneys for Defendants 7 Southwoods Boulevard, Suite 204 Albany, New York 12211 Tel: (518) 463-5400 Fax: (518) 463-5420 Email: wgreagan@ goldbergsegalla.colTI

13

 
 CASE NAME:

MOTION HEARING MINUTES

Nichole Marie McDaniel

VS The County of Schenectady, et al.

CAUSE: 42:1983 Civil Rights Act

DATE: September 29, 2005

PROCEEDING: LAW CLERKS:

Motion Hearing

CASE NUMBER: 1:04-cv-757 (GLS/RFT)

TRIAL DATE: **/**/** STENO: Theresa Casal

Note:

None

PRINT NAME Bob Keach Jason Rozger
William J. Greagan

FIRM NAME
Office of Elmer R. Keach
Beranbaum, Menken Law Firm
Goldberg, Segalla Law Firm

PHONE # (518)434-1718 (212)509-1616
(518)463-5400

PARTY: Plaintiff Plaintiff
Defendants

BEGINNING TIME: 10:50 A.M.

END TIME: 11:57 A.M,

APPEARANCES:. All attorney’s are present.

10:50 a.m. 10:54 a.m. 10:59 a.m. 11:01 a.m.
11:08 a.m.

Court states the motions and issues pending before the court. Court turns to the sua sponte issue. Courtturns to warning on the record regardingauthority. Discipline is governed by Local Rule 83.4(j and k). General Order 25 has been amended on civility of litigation. Court turns to the unobjected report-ercommendation. Court adopts report-recommendation in its entirety. Court turns to the defendants’ motion for summary judgment. Court adopts decision brought by Judge Homer’s decision. Atty. Greagan states Judge Homer’s decision is unconstitutional. Due process and equal protection. Gives an example to the court. Creates disparate treatm ent on the proposed class. Those out of jail recover and those in jail can’t recover. Creates m ischief on both sides if apply standard that you have to wait until you get out of jail. All things create an unconstitutional result. Southern District d ecision is Affirm ed. Difference in rights in upstate inmates and downstate inmates. Addresses point 23 rule. Court states point is not without merit. Court understands argument on constitutionality but disagree.

11:13 a.m. 11:14 a.m.
11:17 a.m. 11:18 a.m. 11:19 a.m.
11:22 a.m. 11:22 a.m. 11:23 a.m. 11:23 a.m.
11:32 a.m. 11:35 a.m. 11:36 a.m. 11:38 a.m. 11:46 a.m.

Atty. Greagan states 5 laws uits in NDNY currently pending. 1 st one to raise issue before District Court Judge. Would like the court to certify to the court of appeals. Court states will give defendant to submit to the court that gives this court theempowerment to do and whether the court should and give the plaintiff a chance to respond. Until definitively resolved by this circuit at odds on how to resolve it. Judge Homer represents that how courts resolved it is adverse to th e decision. Court gives the defendants 3 weeks and the plaintiff receive 3 more weeks. Submissions by defts. due on or before October 20 and the plaintiff’s subm issions due on or before November 10th. Court asks exercise discretion under 4m. Atty. Greagan states court has authority. Next issue is claim against them on Monell claim. Frivolous to serve them courts decision not Frivolous. Court denies motion as premature. Court gives examples to counsel. Denying aspect ofthat motion with leave to renew. Does not have full record to proceed on this issue. Atty. Greagan states plaintiff offered no evidence. No proof of what happened to plaintiff and that any of these people had participated in the booking orcreated policy on this record. No affidavit from the plaintiff. No proof of policy the plaintiff was subjected to. In plaintiff’s power to address. In m/s/j under these circumstances and could not survive. Court states issues are in outstanding discovery. Court states ruling is motion is denied as premature with right to renew. Need to proceed with further discovery then will rule on it. Court turns to the two magistrate appeals. Atty. Keach states plaintiff’s opportunity toserve the two plaintiffs. Court gives theplaintiff 30 days. Atty. Greagan states will notify plaintiff if can accept service. Court turns back to civilityissue. Court turns to the magistrates standard of review. Context in which these appeals arise.Court declines to adopt Hainesstandard. Court adopts standard in this district. Court lists citations. Cour t cites the local rule that governs appeal of magistrate judge’s decision. Court states test adopted is there reasonable view of law that justifies decision he made and that decision is not clearly erroneous. Court turns to McDaniel appeal. Court states obligation to disclose those witnesses. Atty. Keach states some disagreement states withdraws this appeal. Atty. Keach states interviewed witness. Defendants have possession of book. Court affirms order of the m agistrate judge. Certain tim ing components. Refer back to magistrate. Date has gone by. Understand points plaintiff is m aking. Leave that to the discretion of the magistrate. Not regulate the actual disclosure. Court turns to the 2nd appeal. Court states takes as collateral issues. Court discusses change of call to m agistrate judge for conference pr ior to filing a non-dispositive m otion. State privileges do not apply in federal court. In federal court, federal privileges apply. Atty. Greagan states federal rules allow litigants make discovery motion. Moves to theissue of relevancy. One remedy would to be filed all under seal. Rule23 states get discovery after class certification. Even under seal, still aninvasion here. Action has been going on since June 2004. Record contains plaint iff had other people. Only reason to obtain these individuals is for a fishing trip. No rationa l explanation. Burden being placed upon the defendant.

11:49 a.m.
11:51 a.m. 11:53 a.m. 11:54 a.m.
11:54 a.m.
11:55 a.m. 11:56 a.m.

Court gives an exam ple to defense counsel. 2 nd circuit has ruled a strip search policy is unconstitutional. Court states decisions are summarized. Atty. Greagan states plaintiff have obligation to have good faith basis. Court states issue is magistrate judge had good faith basis on order appealing. Atty. Greagan states he was wrong on the law. Unholy burden on defendants just because it is called a class action. Still before the proof stage. Unfair to the defense. Court denies the appeal. Order is not clearand erroneously. Refer back to magistrate judge. Court asks what else leaves us. Counsel state all issues before court. Transcript constitutes the decision of the record. No written order forthcoming.

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

:

NICHOLE McDANIEL and

:

LESSIE DAVIES, both individually and :

on behalf of class of individuals

:

similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF SCHENECTADY, :

et. al.,

:

:

Defendants.

:

____________________________________:

No. 04-CV-0757 (GLS/RFT)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Respectfully Submitted By:

Elmer Robert Keach, III, Esq.

USDC, NDNY Bar Roll Number 601537

LAW OFFICES OF ELMER ROBERT

KEACH, III, PC

1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

Telephone:

518.434.1718

Telecopier:

518.770.1558

Electronic Mail: bobkeach@nycap.rr.com

Gary E. Mason, Esq.

Charles Schneider, Esq.

THE MASON LAW FIRM, PLLC

1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

Dated: August 18, 2006

Bruce E. Menken, Esq.

USDC, NDNY Bar Roll Number 10494

Jason J. Rozger, Esq.

BERANBAUM, MENKEN, BEN-ASHER & BIERMAN, LLP

80 Pine Street, 32nd Floor

New York, NY 10004

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail: jrozger@bmbf.com

Jonathan W. Cuneo, Esq.

USDC, NDNY Bar Roll Number 511605

Charles LaDuca, Esq.

USDC, NDNY Bar Roll Number 511604

CUNEO WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E.

Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ii

I. INTRODUCTION

1

II. PROCEDURAL HISTORY

1

III. THE SETTLEMENT AGREEMENT

2

IV. ARGUMENT

5

A. THE CERTIFICATION OF THE PROPOSED SETTLEMENT

CLASS UNDER FED. R. CIV. P. 23 IS APPROPRIATE

5

1. The Elements of Rule 23(a) are Satisfied in the Present Case

6

a. The Class Members are Sufficiently Numerous

7

b. The Class Members Share Common Questions of Law and Fact

8

c. The Plaintiff’s Claims are Typical of the Class

9

d. The Plaintiff and Her Counsel Will Fairly and Adequately

Represent the Class

10

2. The Elements of Rule 23(b)(3) Are Also Satisfied

11

a. Common Questions of Law and Fact Predominate

11

b. A Class Action is the Superior Method of Adjudicating This Case

12

B. THE SETTLEMENT AGREEMENT SHOULD BE GRANTED

PRELIMINARILY APPROVAL BY THE COURT

13

C. THE COURT SHOULD DIRECT NOTICE TO THE CLASS

18

D. A FINAL FAIRNESS HEARING SHOULD BE SCHEDULED

20

V. CONCLUSION

20

TABLE OF AUTHORITIES FEDERAL CASES
In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718 ............ 10 In re Agent Orange Product Liability Litigation, 818 F.2d 145 ..................... 8 Amchem Products Inc. v. Windsor, 521 U.S. 591 ..................................... 5, 11 Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305 ................................................................................................. 14 In re Baldwin-United Corporation, 105 F.R.D. 475 .................................... 14 Boggs v. Divested Atomic Corp., 141 F.R.D. 58 ............................................ 7 Bronson v. Board of Education of the City School District of the City of Cincinnati, 604 F. Supp. 68 .......................................................................... 13 Bynum v. District of Columbia, 214 F.R.D. 27 ............................................... 6 Cayuga Indian Nation v. Carey, 89 F.R.D. 627 ........................................... 19 In re Corrugated Container Antitrust Litigation, 643 F.2d 195 ................... 14 Dietrich v. Bauer, 192 F.R.D. 119 .......................................................... 10, 11 Doan v. Watson, 2002 WL 31730917, 2002 U.S.Dist. LEXIS 23333 .......... 16 Dodge v. County of Orange, 226 F.R.D. 177 ......................................... 17, 18 In re: Drexel Burnham Lambert Group, Inc., 960 F.2d 285 ........................ 14 Dura-Built Corp. v. Chase Manhattan Corp., 89 F.R.D. 87 .......................... 8 Eddleman v. Jefferson Co., Kentucky, 96 F.3d 1448 ...................................... 9 In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litig., 55 F.3d 768 .......................................................................... 14 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 ....................... 9 Hanlon v. Chrysler Corp., 150 F.3d 1011 ...................................................... 5 Haywood v. Barnes, 109 F.R.D. 568 .............................................................. 8 Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339 ......................................... 9
ii

Holden v. Burlington Northern, Inc., 655 F.Supp. 1398 .............................. 15 Jenkins v. Raymark Industrial, 782 F.2d 468 ............................................... 11 Smith v. Montgomery Co., 573 F.Supp. 604 ................................................. 10 M. Berenson Co. v. Faneuil Hall Market Place, Inc., 671 F.Supp. 819 ....... 15 Mack v. Suffolk Cty., 191 F.R.D. 16 ........................................................... 6, 8 Maneely v. City of Newburgh, 208 F.R.D. 69 ................................................. 6 Marisol A. v. Giuliani, 126 F.3d 372. ............................................................. 8 Marriott v. County of Montgomery, 228 F.R.D. 133; .................................. 11 Marriott v. County of Montgomery, 227 F.R.D. 159 ...................................... 6 McBean v. City of New York, 233 F.R.D. 377 .............................................. 16 In Re NASDAQ Market Makers, 169 F.R.D. 473 ......................................... 11 In re NASDAQ Market Makers, 1997 U.S. District LEXIS 20835 ............... 14 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 ............................................ 19 In re Prudential Insurance Co. Of America Sales Practices Litig., 148 F.3d 283, .................................................................................................. 5 In re Prudential Securities Inc., 163 F.R.D. 200 ...................................... 5, 13 Robideaux v. Celani, 987 F.2d 931 ................................................................. 7 Trief v. Dun & Bradstreet Corp., 840 F.Supp. 277 ...................................... 14 Visa Check, 280 F.3d 136 ............................................................................. 11 In re Warner Communications Security Lit., 798 F.2d 35 ............................ 15 Weinberger v. Kendrick, 698 F.2d 61 ........................................................ 5, 14 Zimmer Paper Products Inc. v. Berger & Montague, P.C., 758 F.2d 86 ..... 19
FEDERAL STATUTES F.R.C.P. 30(b)(6) ............................................................................................ 2 F.R.C.P. 72 ...................................................................................................... 2 Fed. R. Civ. P. 23(a). ...................................................................................... 7
iii

Fed. R. Civ. P. 23(b)(3) ............................................................................ 1, 20 MISCELLANEOUS
Manual for Complex Litigation Third (1995) ................................... 14, 18, 19 Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels, § 3.05, at 141-42) ................................................................ 7
iv

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT I. INTRODUCTION
Plaintiff Lessie Davies filed the above-captioned class action lawsuits against Defendants Harry Bufardi, Gordon Pollard, and Robert Elwell, alleging that Defendants had violated her Constitutional rights under color of state law by illegally strip searching her, and others similarly situated, upon admission into the Schenectady County Jail, and that Defendants maintained an unconstitutional policy of strip searching all pre-trial detainees who were admitted into the Schenectady County Jail absent any particularized suspicion that they possessed weapons or other contraband.
Substantial settlement negotiations have taken place between the Parties, including a mediation conducted by Magistrate Judge Treece, and, as a result, the parties have reached a Settlement Agreement, which was executed on July 31, 2006. Plaintiffs now move for preliminary approval of the settlement. Accordingly, at this preliminary stage of the settlement process, Plaintiffs respectfully request that the Court: (i) grant preliminary approval of the proposed settlement; (ii) certify the Settlement Class pursuant to the provisions of Fed. R. Civ. P. 23(b)(3); (iii) schedule a fairness hearing to consider final approval of the settlement; (iv) direct that notice of the proposed settlement and final approval hearing be provided to absent class members in a manner consistent with the Settlement Agreement and the Notice Plan, and in the form and content substantially as set forth in the Settlement Agreement; and (v) enter the proposed Order for Preliminary Approval filed contemporaneously herewith, a copy of which is also Exhibit D to the Settlement Agreement.
II. PROCEDURAL HISTORY Plaintiff filed this lawsuit on June 29, 2004. Discovery commenced, with the Plaintiffs
1

taking the depositions of Defendant County of Schenectady, pursuant to F.R.C.P. 30(b)(6), and Schenectady County correction officers Jerry Carlos, Michele Bergeron, Sherri Crandall, Judith Eldred, and Dean Harper. Defendants deposed Ms. Davies. The Plaintiffs also obtained hundreds of pages of documentary discovery, including numerous internal policies and procedures of the Schenectady County Jail. Discovery in the case was extremely contentious, with several disputes requiring the intervention of Magistrate Treece. Those included the Plaintiff’s right to informally speak with individual corrections officers (docket entries 9-10, 13), the Plaintiff’s access to the SCJ for an inspection and the right to obtain production of the SCJ booking sheets (docket entries 18-24), and the applicability of the work-product privilege to the conversations between Plaintiff’s counsel and non-party witnesses (docket entries 28, 30). These disputes and others required numerous discovery conferences before Magistrate Treece, with several disputes being appealed to this Court pursuant to F.R.C.P. 72. Defendants moved for partial summary judgment, based on the applicability of the Prison Litigation Reform Act (PLRA) to this case. That motion was denied. (Docket entry 77). Defendants’ application for permission to file an immediate appeal of that decision to the Second Circuit was pending at the time the parties reached an agreement in principle to settle the case on a class-wide basis. The negotiation process was facilitated by a settlement conference before Magistrate Treece on May 17, 2005 that led to the parties ultimately reaching an agreement.
III. THE SETTLEMENT AGREEMENT The settlement agreement, signed on July 31, 2006, (exhibit 1 to Rozger affirmation) provides that the Defendants will create a fund to compensate the settlement class members for the violation of their Constitutional rights. The Settlement Class is defined as follows: All persons who were placed into the custody of the Schenectady County Jail during
2

the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The size of the Settlement Class is approximately 5,500 persons1. The Settlement Agreement calls for the creation of a Settlement Fund totaling two million, five hundred thousand dollars ($2,500,000.) That amount is allocated as follows: approximately $1,750,000 for distribution to class members, $650,000 in attorney’s fees, $13,500 in incentive awards for the named and proposed named Plaintiffs, and approximately $86,500 in notice and administration costs. Each Settlement Class member who makes a claim will receive a pro rata share of the $1,750,000 distribution amount, with the entire distribution amount to be distributed to the class. In addition, the settlement agreement provides that the Defendants will change their strip search policy so that individuals being booked into the Schenectady County Jail will not be stripsearched absent reasonable suspicion that such individual is secreting weapons or contraband. This represents a clear victory for the class, and will benefit any other individual who will enter the SCJ in the future. The revised policy, which is annexed as Exhibit G to the proposed Settlement Agreement, is a detailed, workable policy that provides ample guidance for SCJ correction officers. It provides, inter alia, that a strip search upon admission will only take place if there is reasonable, individual suspicion that the arresstee is concealing contraband, and that the officer performing the search must first obtain authorization for the search from the Unit Supervisor, and must document the reasons for, and results of, the strip search on a standardized form. The implementation of this
1This estimate is based on the Sheriff’s Annual Report of the population of the SCJ for the years 2001 - 2004. (Exhibit 2). This number may overstate the class size, since it may include individuals who were admitted into the SCJ more than once.
3

policy will ensure that the admissions process at the SCJ will comport with Constitutional standards, and is the fulfillment of a major purpose of this lawsuit.
Plaintiffs’ Class Counsel respectfully submit that the terms of this settlement are fair, adequate, and reasonable for the Settlement Class and that the requirements for final approval will be satisfied. In considering preliminary approval, however, the only issue before the Court is whether the proposed settlement is within the range of what may be found to be fair, adequate, and reasonable, so that class members can be notified of the proposed settlement and a fairness hearing can be scheduled. Only after class members and others have had an opportunity to receive notice and present supporting or opposing evidence at a formal fairness hearing will the Court be called upon to render a final judgment regarding the fairness of the proposed settlement.
Once the Court has ruled on the motion for preliminary approval, the deadlines for providing notice, opting out of the Settlement Class, and submitting claims will begin to run. The schedule set forth below, which is subject to the timing of actions to be taken by the parties and the Court in this case, provides the Court with an approximate time line of the various steps in the settlement approval process under the Settlement Agreement.
Notice Date: not later than 30 days after Preliminary Settlement Approval date Deadline for filing Objections: 90 days after Notice Date Deadline for filing an Opt-out notice: 90 days after Notice Date Deadline for filing a Claim: 120 days after Notice Date Final Fairness Hearing: As determined by the Court.
4

IV. ARGUMENT A. THE CERTIFICATION OF THE PROPOSED SETTLEMENT CLASS UNDER FED.
R. CIV. P. 23 IS APPROPRIATE The benefits of the proposed Settlement can be realized only through the certification of a settlement class. The Supreme Court of the United States has emphatically confirmed the viability of such settlement classes. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997). So, too, have the federal appeals courts. See e.g., In re Prudential Ins. Co. Of Am. Sales Practices Litig., 148 F.3d 283 (3d Cir. 1998), cert. denied, 119 S. Ct. 890 (1999) (“Prudential II”); Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998). The use of such settlement classes, where the parties have engaged in and concluded settlement negotiations prior to class certification and notice, has been clearly approved by this Circuit, Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982), cert denied, 464 U.S. 818, 78 L.Ed.2d 89, 104 S.Ct. 77 (1983), so long as “district judges who decide to employ such a procedure... scrutinize the fairness of the settlement with even more than the usual care.” Id., at 73. See also In re Prudential Securities Inc., 163 F.R.D. 200, 205 (S.D.N.Y. 1995) (“tentative or temporary settlement classes are favored when there is little likelihood of abuse, and the settlement is fair and reasonable and under the scrutiny of the trial judge,”) (quoting In re Beef Indust. Antitrust Lit. 607 F.2d 167, 174 (5th Cir. 1979), cert denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981)). The proposed Settlement in this case readily meets the Rule 23(a) criteria of numerosity, commonality, typicality, and adequacy. Certification under Rule 23(b)(3) is appropriate for settlement of the class members’ compensatory damages claims because all plaintiff’s claims for compensatory relief are premised on the predominating common issues of the existence of a blanket strip search policy at the SCJ, and whether the County of Schenectady was responsible for that
5

policy. There is no danger that individual variations in the type or magnitude of damage suffered by individual class members will affect predominance, as the class representative as the same type of damages and seeks the same type of relief as the members of the proposed class. Moreover, resolution of this litigation by a class settlement is superior to individual adjudication of the class members’ claims for compensatory relief. In particular, the proposed settlement provides the class members with an ability to obtain predictable, certain and defined compensatory relief promptly, and it contains well defined administrative procedures to assure due process of law to each individual class member, including the right to “opt out” of the settlement agreement. By contrast, individual litigation carries with it great uncertainty and costs, and is doubtful that many of the proposed class members would be able to vindicate their rights in an individual action, because of the risk of a minimal damage award and the costs of pursuing an individual case. A class-wide settlement would also relieve the judicial burden that would result from the repeated adjudication of the same issues in thousands of individual damages trials against Schenectady County. Indeed, for all of the above reasons, numerous other district courts have certified such class actions where the allegations were the same as in this case. See, e.g., Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005); Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003); Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y 2002); Mack v. Suffolk Cty. 191 F.R.D. 16 (D. Mass. 2000); Kahler v. County of Rensselaer, 03 CV 1324 (N.D.N.Y. Sept. 23, 2004).
1. The Elements of Rule 23(a) are Satisfied in the Present Case Approval of the settlement class, at lease for purposes of notice, is appropriate, since the Plaintiffs can establish each of the four threshold requirements of Subsection (a) of the Rule, which provides: One or more members of a class may sue or be sued as representative parties on
6

behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). See, e.g., Prudential, supra. Here, all four elements easily are satisfied. a. The Class Members are Sufficiently Numerous
Rule 23(a)(1) requires that the proponent of a class action demonstrate that "the class is so numerous that joinder of all members is impracticable." This rule does not impose a burden of demonstrating that joinder of all class members is "impossible." Robideaux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“[i]mpracticable does not mean impossible”), see also Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 63 (S.D. Ohio 1991) (“satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.”) There is no fixed minimum number of class members that will satisfy this requirement, but “[a] leading treatise concludes, based on an examination of prevailing precedent, that the difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable.” Robideaux, at 937 (citing 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels, § 3.05, at 141-42).
In the present case, Defendants produced in the course of discovery documents detailing that during the proposed class period, approximately 5,500 non-felony detainees were booked into the SCJ. (Exhibit 2 to Rozger affirmation). Moreover, the proposed class here is likely to be chiefly comprised of economically and socially marginalized persons whose access to legal counsel and the court system is extremely limited. For these reasons, it is clear that joinder is impracticable, and it
7

is clear that the proposed class meets the numerosity requirement. b. The Class Members Share Common Questions of Law and Fact
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” The “commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). “Rule 23 does not require that all questions of law or fact be common, it only requires that the common questions predominate over the individual questions.” Dura-Built Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 93 (S.D.N.Y.1981) Plaintiffs are not required to show that all class members claims are identical to each other, and any differences between the proposed class members, “while arguably relevant as defenses to liability, do not change the fact that this class action raises the same basic claim and shares common questions of law.” Mack v. Suffolk County, 191 F.R.D. 16, 23 (D.Mass. 2000) (allowing certification of strip search class action despite “varying defenses to liability which may be raised regarding particular individuals”). Indeed, a single common question is sufficient to satisfy the requirements of Rule 23(a)(2). In re Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987). Plaintiffs are entitled to class certification where the class claims arise “from a common nucleus of operative fact regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants,” Haywood v. Barnes, 109 F.R.D. 568, 577 (E.D.N.C. 1986).
Here, Plaintiffs have satisfied the requirement of commonality. They claim that they were illegally strip searched at the Schenectady County Jail pursuant to the Defendants’ practice of stripsearching all individuals booked into the SCJ. Defendants deny such a practice, and maintain that all strip searches were conducted on a finding of reasonable suspicion. As such, this class action has two common issues that are of central importance to the claims of all class members: whether
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the Schenectady County Jail employed a blanket strip search policy and/or practice during the class period, and whether Defendants Schenectady County are responsible for such Constitutional violations. These questions are the centerpiece of this litigation, and would be the focus of any trial in this matter. They have been the subject of extensive discovery already, and has, Plaintiffs contend, been confirmed by the 30(b)(6) deposition of Defendant County of Schenectady and the Schenectady County Jail’s written policies. Class certification here is appropriate given these questions, even if there are some variations in circumstances amongst individual class members. See Eddleman v. Jefferson Co., Kentucky, 96 F.3d 1448 (Table), 1996 WL 495013, *4 1996 U.S. App. LEXIS 25298 (6th Cir. 1996) (commonality is present even where some class members “subject to a full strip search instead of a partial one, or the fact that some individuals may fail to meet the qualifications for the class because it can be shown that there was reasonable suspicion to search them … These isolated instances of non-commonality are not grounds for denying class certification”) (Exhibit 3).
c. The Plaintiff’s Claims are Typical of the Class Rule 23(a)(3) requires that the claims of the class representatives be "typical of the claims . . . . of the class." The requirement of this subdivision of the rule, along with the adequacy of representation requirement set forth in subsection (a)(4), is designed to assure that the interests of unnamed class members will be protected adequately by the named class representative. See, e.g., General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed. 2d 740 (1982). The measure of whether a plaintiff's claims are typical is whether the nature of the plaintiff's claims, judged from both a factual and a legal perspective, are such that in litigating his or her personal claims he or she reasonably can be expected to advance the interests of absent class members. Id. Common questions must predominate over individual questions. The Court must find
9

that "the group for which certification is sought seeks to remedy a common legal grievance." Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339 (N.D. Ill. 1978). Rule 23(b)(3) does not require that all questions of law or fact be common. “Thus, when common questions represent a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is a clear justification for handling the dispute on a representative rather than on an individual basis.” In re “Agent Orange” Product Liability Litigation, 100 F.R.D. 718, 723 (2nd Cir. 1983) (quoting 7A Wright & Miller, Federal Practice and Procedure § 1777 (1972)).
Here, Plaintiff raises common issues of fact and law that predominate over any individual issues that might arise. All of the proposed class members’ legal claims revolve around one legal issue: is a policy of strip searching every pretrial detainee admitted to a county jail, without regard to the crime charged or circumstances of arrest, constitutional? Plaintiffs’ claims also share a common factual issue - did such a practice exist, and was the defendant County responsible? These legal and factual issues predominate over any of the Plaintiffs’ individual issues.
d. The Plaintiff and Her Counsel Will Fairly and Adequately Represent the Class Rule 23(a)(4) requires that the class representative “fairly and adequately protect the class.”
In this judicial circuit, “gauging the adequacy of representation requires an assessment whether the class representatives have interests antagonistic to those of the class they seek to represent, as well as an evaluation of the capabilities and qualifications of the class representative’s counsel.” Dietrich v. Bauer, 192 F.R.D. 119, 126 (S.D.N.Y. 2000). Both prerequisites of adequacy of representation are met in this case.
Plaintiff and the proposed class members have a uniform interest in ending illegal strip searches at the SCJ, and to obtaining appropriate compensation from Defendants. In nearly identical circumstances, and given the common legal and factual issues, courts have deemed plaintiffs in
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similar cases to be adequate class representatives. See, e.g., Kahler, supra; Marriot, supra; Eddleman, supra; Smith v. Montgomery Co., 573 F.Supp. 604 (D. Md. 1983) appeal dism., 740 F.2d 963 (4th Cir. 1984).
The class is also represented by competent counsel who are have extensive experience in both class action and civil rights litigation, including several other strip search class actions in this District. See Marriott, 228 F.R.D. 133, 172 (N.D.N.Y. 2005); Kahler, supra; Kelsey v. County of Schoharie, 04 CV 0299. The firm resumes for each class counsel also attest to their experience and ability to represent the class. See exhibits 4-7 to Rozger affirmation. In short, the Plaintiffs are adequate representatives, and have retained experienced class counsel that have aggressively litigated this action. They have satisfied this requirement for certification.
2. The Elements of Rule 23(b)(3) Are Also Satisfied a. Common Questions of Law and Fact Predominate A class action may be maintained under Rule 23 (b)(3) if “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other methods for the fair end efficient adjudication of the controversy.” Id. “The Rule 23 predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prod. v. Windsor, 521 U.S. 591, 623 (1997). In order to meet the predominance requirement of Rule 23(b)(2), a plaintiff must establish that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, … predominate over those issues that are subject to only individualized proof.” Visa Check, 280 F.3d 136 (citation omitted). The most pragmatic way for the Court to make this determination is to evaluate whether “common proof will predominate at trial.” In Re NASDAQ Market Makers, 169 F.R.D. 473, 517 (S.D.N.Y. 1996). See also, Jenkins v. Raymark Indus., 782
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F.2d 468, 472 (5th Cir. 1986) (the “significant aspect” requirement is met if “jury findings on the class questions … will … significantly advance the resolution of the underlying … cases”); Dietrich, 192 F.R.D. at 127 (in determining whether common issues of fact predominate, “a court’s inquiry is directed primarily toward whether the issue of liability is common to members of the class”).
Here, all of the Plaintiff’s legal claims revolve around one legal issue: is a policy of strip searching every pretrial detainee admitted to a county jail, without regard to the crime charged or circumstances of arrest, constitutional? Plaintiff’s claims also share a common factual issue - did such a practice exist, and was the defendant County responsible? These issues, and not any of the Plaintiff’s individual issues, were the subject of the long and contentious discovery process in this case, and surely would have been the subject of equally contentious motion practice had the case not resolved. These legal and factual issues accordingly predominate over all of the class members’ individual issues.
b. A Class Action is the Superior Method of Adjudicating This Case Finally, Rule 23(b)(3) requires that a class action suit provide the best way of managing and adjudicating the claims at issue. In this case, settlement on a class basis also is superior to individual litigation and adjudication because settlement provides class members with prompt compensation for their damages, whether those damages exist now or manifest themselves sometime in the future. By contrast, compensation resulting from litigation is highly uncertain and may not be received before lengthy trial and appellate proceedings are complete. In addition, the Settlement obviously removes the overwhelming and redundant costs of individual trials. Accordingly, the Settlement Agreement renders a class action superior to other potential avenues of recovery for Plaintiffs and the Class. Therefore, this case presents the paradigmatic example of a dispute which can be resolved to effectuate the fundamental goals of Rule 23: (1) to
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promote judicial economy through the efficient resolution of multiple claims in a single action; and (2) to provide persons with smaller claims, who might otherwise be economically precluded from doing so, the opportunity to assert their rights. Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1754. At the same time, the Settlement fully preserves the due process rights of each individual plaintiff seeking compensatory damages. In sum, the requirements of Rule 23(b)(3) are satisfied and certification of a the proposed class is appropriate. B. THE SETTLEMENT AGREEMENT SHOULD BE GRANTED PRELIMINARILY
APPROVAL BY THE COURT At this stage, the Court is charged with determining whether the proposed Class Settlement is possibly fair, reasonable and adequate. The Court’s function is “to ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing.” Prudential, 163 F.R.D. at 209 (quoting Amstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980)). The procedure of providing notice to the class followed by a hearing to consider approving a class settlement has been accepted by numerous courts and is now standard practice. Prudential, supra; see also Bronson v. Board of Education of the City School District of the City of Cincinnati, 604 F. Supp 68 (S.D. Ohio 1984).2 The Manual for Complex Litigation, Third (Federal Judicial Center 1995) §30.41, summarizes the recommended procedure that courts have articulated for the class action settlement approval process:
A two step process is followed when considering class settlements. First, that court makes a preliminary evaluation of the fairness of the
2The Court in Bronson outlined the following procedure for preliminary approval of a settlement. “The court must preliminary approve the proposed settlement; then, members of the class must be given notice of the proposed settlement and after a hearing, the court must decide whether the proposed settlement is fair, reasonable and adequate.” Id. at 71.
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settlement…If the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that notice be given to the class members of a formal fairness hearing, at which evidence may be presented in support of and in opposition to the settlement. Authorizations to disseminate notice reflects a recognition by the Court that the settlement is in the range of possible approval; the ultimate Rule 23(e) determination is reserved pending the completion of the notice and initial opt-out process, so the Court can consider input from the class members who will be bound by the final approval Order. See In re Baldwin-United Corporation, 105 F.R.D. 475, 485 (S.D.N.Y. 1984) (court authorized provisional class certification and notice “without prejudice to the findings the Court will make after conducting the fairness hearing, at which time all objections or arguments in opposition to the proposed settlements will be heard and considered and proponents must discharge their burden to prove that the proposed settlement agreements are fair and reasonable”); see also In re NASDAQ Market Makers Antitrust Litigation, 1997 U.S. District LEXIS 20835, 94 Civ. 3996 (S.D.N.Y. December 31, 1997) (exhibit 8); In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995); In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981); Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305 (7th Cir. 1980). Whether the settlement falls within the range of possible approval under Rule 23 turns upon whether there is a conceivable basis for presuming that the more rigorous standard applied for final approval will be satisfied. The standard for final approval of a settlement consists of showing that the settlement is “fair, reasonable and adequate,” Weinberger, 698 F.2d at 73, considering “the complexity of the litigation, comparison of the proposed settlement with the likely result of litigation, experience of class counsel, scope of discovery preceding settlement, and the ability of
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the defendant to satisfy a greater judgement,” In re: Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 293 (2d Cir. 1992). In the absence of fraud, collusion or the like, the Court should not substitute its own judgment for that of counsel. Weinberger, supra; see also Trief v. Dun & Bradstreet Corp., 840 F. Supp. 277, 281 (S.D.N.Y. 1993) ("absent evidence of fraud or overreaching [courts] consistently have refused to act as Monday morning quarterbacks in evaluating the judgment of counsel"); In re Warner Communications Sec. Lit., 798 F.2d 35, 37 (2d Cir. 1986) (“it is not a district judge's job to dictate the terms of a class settlement"); M. Berenson Co. v. Faneuil Hall Market Place, Inc., 671 F. Supp. 819, 822 (D. Mass 1987) ("[w]here, as here, a proposed settlement has been reached after meaningful discovery, after arm’s length negotiation, conducted by capable counsel, it is presumptively fair.") Preliminary approval is not a definitive final finding on the fairness of the proposed settlement, and permitting notice to members of the class does not mean that the Court has found the settlement to be fair, reasonable, and adequate for purposes of final approval. See Holden v. Burlington Northern, Inc., 655 F.Supp. 1398 (D.Minn. 1987).
An initial analysis of the terms and features of the proposed class settlement of this case should give the Court confidence that it merits serious consideration by the class members, and that it will likely serve as the fair and comprehensive resolution of class members’ claims. Preliminary approval requires a finding that the Settlement falls within the range of possible approval, meaning, primarily, that Settlement was reached as a result of arms-length negotiations and after sufficient discovery was conducted. Here, both those requirements are satisfied. Settlement negotiations, which included Class counsel, were extensive, adversarial, and were carried on for over a year starting just before Magistrate Treece’s May 17, 2005 settlement conference and continuing up until the agreement was executed by both parties on July 31, 2006. These negotiations were conducted by experienced and knowledgeable counsel, who had the benefit of extensive fact discovery from
15

both Plaintiffs and Defendants. Moreover, the Settlement was achieved only after over two years of intense adversarial litigation, with counsel for the Plaintiffs vigorously pursuing fact discovery and often obtaining the intervention of Magistrate Treece. The settlement was reached after extensive discovery revealed evidence which, Plaintiffs believe, would fully support the granting of preliminary injunction and class certification. Thus, the settlement was reached in a procedurally fair, arms-length manner.
It is also clear that the settlement is substantively fair. First of all, the settlement provides substantial injunctive relief to the class, in that the Defendants have agreed to implement a revised strip search policy at the SCJ that provides that such searches will only occur upon reasonable suspicion that the detainee is secreting contraband, and to train their correction officers about that revised policy. (Exhibit 1, p. 10-11). This will help insure that any class member who should enter the SCJ again will not have their Constitutional rights violated by an unlawful strip search.
In addition, it is clear that the monetary compensation to the class members here for the indignity of an unlawful strip search is fair and reasonable, given the inherent risks of litigation and given awards in similar cases. Since each class member who files a claim will receive a pro rata share of the settlement proceeds, what each claimant receives will depend on how many class members make claims. In similar strip search class action settlements, both in this District and nationwide, class members have filed claims at rates between 11 and 32%. See Doan v. Watson, 2002 WL 31730917, 2002 U.S. Dist. LEXIS 23333, No. 99-4-C-B/S (S.D.Ind. December 4, 2002) (619 of 2591 class members made claims, or 24%) (exhibit 9); Eddleman v. Jefferson County, 3:91 CV 144-J (W.D.KY.) (approximately 24% of class made claims) (exhibit 10); McBean v. City of New York, 233 F.R.D. 377, 381-82 (S.D.N.Y 2006) (4319 of 40,352 class members filed claims, or 11%); Kahler v. County of Rensselaer, 03CV1324 (32% of class members filed claims) (Rozger
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affidavit, ¶ 11). If this case achieves the same 32% claims rate as in the Kahler case, approximately 1,760 individuals will share the $1,750,000 of the settlement allocated to paying claims, or about $994 each. If the rate of return is closer to the 24% rate achieved in the Eddleman or Doan cases, each class member filing a claim will receive approximately $1,326. Of course, it is not necessary at this time for the Court to determine what the ultimate claims rate in this case will be; all that is required is to determine whether the proposed settlement is fair enough to warrant going forward and notifying the proposed class. Since it is likely that class members here will receive at least $1,000 each, the proposed settlement is well within the range of fairness required to tentatively certify the class and send the class notice.
Indeed, numerous courts have approved, on motions for final approval, strip search class settlements for per-claimant amounts of the same or less than what is likely here. In the case of Tyson, et. al. v. City of New York, et. al., 97 Civ. 3762 (S.D.N.Y.), a class action filed to address a blanket strip search policy in New York City jails, settling class members who did no more than file a claim (which is all class members are asked to do here) received a $250 payment. See McBean, supra at 389. In McBean, the court approved a strip search class settlement providing payments of approximately $825 per person. (Id.) In addition, claimants in Doan v. Watson, supra, received payments of $1,000, as did the claimants in Kahler.
Finally, in the case of Dodge v. County of Orange, 02 CV 769 (CM) (MDF) (S.D.N.Y.), the parties reached a strip search class settlement that provided for far less monetary relief, with more onerous prerequisites for class members receiving such relief, than what the class would receive in this case. In Dodge, the class, which consisted of up to 19,280 individuals (Dodge v. County of Orange, 226 F.R.D. 177, 180 (S.D.N.Y. 2005)) shared a total of $624,800, (exhibit 11 to Rozger
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affirmation, p. 13)3, subject to the defendants’ right to exclude class members from receiving a payment if such class members were alleged gang members; had ever been charged with escape; were the subject of a drugs or weapons charge; displayed “assaultive or dangerous” behavior; had a “prior or current contraband charge;” had activated the metal detector and were found to have contraband; or were charged with a violation of probation or parole. (Id., p. 5-6). Each class member charged with a misdemeanor, or less, would receive a maximum of $1,000 (id., p. 9), and that any remaining money in the fund would revert back to the defendants (id., p. 14). That settlement was approved by the court. (Exhibit 12 to Rozger affirmation, docket entry # 112).
Here, the proposed class settlement gives class members the benefit of a significant amount of compensation without having to prove particular emotional distress or the particular circumstances of their search, and without the added obstacle of allowing Defendants a chance to disallow their claims. In addition, class members share in the entire portion of the settlement fund devoted to claims, without the prospect of any excess amount being returned to the Defendants at the close of the process. This simple structure allows for more of the settlement amount to be paid as claims, rather than taken up by administrative costs, and greatly reduces the incentive for the parties to engage in post-settlement litigation. Thus, all in all, the amount offered to class members pursuant to the settlement here is fair, and on par with other settlements in similar cases. Accordingly, at this stage of preliminary approval, there is clear evidence that the Settlement is within the range of possible approval and thus should be preliminarily approved.
C. THE COURT SHOULD DIRECT NOTICE TO THE CLASS Under Fed. R. Civ. P. 23(e), class members are entitled to notice of any proposed settlement
3For their efforts, class counsel in Dodge received $600,000 in counsel fees pursuant to the settlement. Id., p. 15.
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before it is finally approved by the Court. Manual for Complex Litigation Third (1995) §30.212. The Settlement Agreement proposes notice of the Settlement be provided to all class members and a mailing to the known address, as determined by the Schenectady County Jail’s booking sheets and/or the records of the Schenectady County Department of Probation and the Department of Social Services. The settlement administrator will also make a follow-up mailing for any notice that is returned by utilizing national address and credit databases, and by publication in local newspapers.
Under Rule 23(e) and Constitutional notions of due process, adequate notice must be given to all potential class members to enable them to make an intelligent choice as to whether to opt-out of the class. The Supreme Court has held that Rule 23 and due process do not require delivery of actual notice to every class member. Rather "notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). In addition, “[i]t is well-settled that in the usual situation first class mail and publication fully satisfy the notice requirements of Fed. R. Civ. P. 23 and the due process clause.” Zimmer Paper Products Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3rd Cir. 1985); see also Cayuga Indian Nation v. Carey, 89 F.R.D. 627, 633 (N.D.N.Y. 1981) (“individual notice by first class mail, coupled with notice by publication satisfies the requirements of due process and Rule 23.”) In this case, counsel for the Settlement Class has a last known address and date of birth, obtained from the Jail’s booking sheets, for each Settlement Class member. If the mailing to the last known address is returned, the personal information on each class member will be used to obtain a new address, and another mailing will be sent. In addition, class counsel will also obtain corrected class member addresses from other Schenectady County databases. (Exhibit 1, p. 13-14). This procedure, combined with publication, fully satisfies the requirements of due process and Rule 23, and should be approved by the Court.
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D. A FINAL FAIRNESS HEARING SHOULD BE SCHEDULED The Court should schedule a final fairness hearing to obtain all required information to determine that class certification is proper and the settlement should be approved. See Manual for Complex Litigation, Third §30.44 (1995). The fairness hearing will provide a forum for proponents and opponents to explain, describe or challenge the terms and conditions of the class certification and settlement, including the fairness, adequacy and reasonableness of the settlement. Accordingly, plaintiffs request that the Court schedule the time, date, and place of the final fairness hearing.
V. CONCLUSION For the foregoing reasons, plaintiff respectfully requests that this Court enter an Order: (1) conditionally certifying a class action with respect to the claims against Defendants pursuant to Fed. R. Civ. P. 23(b)(3) for the purpose of effectuating a class action settlement of Plaintiff’s strip search claims; (2) preliminarily approving a class settlement with Defendants; (3) directing notice to class members regarding the proposed Class Settlement; (4) scheduling a final approval hearing, and (5) entering the proposed Order for Preliminary Approval.

Dated: August 18, 2006

Respectfully submitted,
Beranbaum Menken Ben-Asher & Bierman LLP By: __________/s/_____________________
Jason J. Rozger Bar Roll # 105874 Bruce E. Menken Bar Roll # 104942 80 Pine Street, 32nd Fl. New York, NY 10005 (212) 509-1616
Elmer R. Keach, III, Esq.
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Bar Roll # 601537 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 (518) 434-1718 ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS
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 CASE NAME:

IN-COURT CONFERENCE MINUTES

Nichole Marie McDaniel

VS The County of Schenectady, et al.

CAUSE: 42:1983 Civil Rights Act

DATE: November 22, 2006

PROCEEDING: LAW CLERKS:

In-Court Conference CASE NUMBER: 1:04-cv-757 (GLS/RFT)

TRIAL DATE: **/**/** STENO: Bonnie Buckley

Note: None

PRINT NAME Bob Keach William J. Greagan

FIRM NAME
Office of Elmer R. Keach
Goldberg, Segalla Law Firm

PHONE # (518)434-1718 (518)463-5400

PARTY: Plaintiff Defendants

BEGINNING TIME: 11:00 A.M.

END TIME: 11:35 a.m.

APPEARANCES:. All attorney’s are present.

11:00 a.m. 11:01 a.m.
11:10 a.m.
11:14 a.m.

Court turns to nature of problem Atty. Keach states integrated settlement agreement. Agreement states if defendants have electronic records they need to provide and refused to provide. Asks court to compel. Class counsel is fiduciary amount of $10,000-$30,000 for records to spend on administration. Claim raised by defendants to filter felony and misdemeanors. Skilled data person can segment out the criminal charge, alternative, get electronic records and compare to physical booking sheets. If have electronic records pursuant to the agreement they need to provide them. 2nd issue, provision in settlement agreements regarding social service databases and probation records on addresses. 3rd issue, requests additional amount of time to get the notices out. Perhaps would need 1 week if receive electronic records. Atty. Greagan states this is integrated agreement; this is a contract; disclosure was the booking sheets; negotiated and agreed to provide the booking sheets; if notices come back then bring those names to social services and probation with order from the court to search names; concerned about privacy of welfare recipients. Argument was before Judge Treece over 1 year ago. The booking sheets have been in our office since the motion. Booking sheets incorporated into the agreement. County entitled to enforce the terms of the agreement. Court inquires litigate and to the database; why is resistance?

11:15 a.m. 11:16 a.m. 11:19 a.m. 11:20 a.m. 11:20 a.m.
11:22 a.m.
11:24 a.m.
11:25 a.m. 11:26 a.m. 11:27 a.m. 11:28 a.m. 11:29 a.m. 11:29 a.m. 11:29 a.m. 11:33 a.m.

Atty. Greagan states database can’t be searched by pretrial detainees, it had to be sorted by hand. Atty. Keach states verified there was a database, has data fields and go to computer to extract the data or put into an excel spreadsheet which has the charge. Court states Judge Treece issued an order. Atty. Keach states has been asking Attorney Greagan for the records for the month. Court wanted just an assessment of address or identify on the class and we are identifying on the class; court turns to 2nd issue of other county agencies databases. Discusses Judge Homer’s crafted order in the Rensselaer County case; adverse to do it up front. Atty. Greagan states only thing about order was to protect the people providing the information. Illogical to provide that information up-front. Discusses November 6th regarding notification of the records. Court declines to order the defendants to produce records; decline to address any issue County agency records; if inital efforts results in return notices; groups will be presented with order to those agencies to search database for addresses of the class; extension of time. Atty. Keach requesting 14 day adjournment of all dates in the order. Atty. Greagan discusses two step process. Notice period. Atty. Keach states going beyond to provide notice to the class. Provide mail notice then resend notice and newspaper advertising. Court states within 90 days will have returns and submit names and proposed order and any discussion what takes to run names through the database. Atty. Greagan states will input each name. Court states should be done in computer format. Atty. Keach states all documents will be placed on a website. Have more than enough time to do what need to do. Atty. Greagan discusses initial payment.

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------){
NICOLE MARIE MCDANIEL, individually and on behalf of a class of others similarly situated, et al., aaa
Plaintiffs,
-against-

04 Civ. 757 (GLS)(RFT) ORDER

THE COUNTY OF SCHENECTADY, et al.,
Defendants.
-------------------------------------------------------){
By letter dated April 4, 2007, counsel for the plaintiffs in the above captioned case requested leave of Court for an Order directing the Schenectady County Department of Social Services to provide last known addresses for all persons for whom the previously produced booking record addresses proved to be inaccurate.
Having considered plaintiffs' counsel's letter and defendants' response, it is hereby ORDERED that:

1. The Schenectady County Department of Social Services shall provide the last known addresses in its possession for all persons for whom the parties agree the booking records previously produced are inaccurate;
2. Plaintiffs will provide defendants a list of all those persons for whom they believe the previously produced booking records are inaccurate within seven (7) days of this Order and, if not rejected by defendants within seven (7) days thereafter, will be considered accurate and

immediately forwarded by defense counsel to the Schenectady County Department of Social SeIVices;
3. Consistent with the parties' July 31, 2006 settlement agreement, plaintiffs' Settlement Administrator shall pay the reasonable hourly rate for all Schenectady County staffrequired to produce the agreed upon last known addresses, the disclosure of the last known addresses shall be limited to Class Counsel and the Settlement Administrator and used solely for effecting notice to those class members of the preliminary settlement of this case, and the record of these last known addresses will be returned to defendants or destroyed, with the consent of the defendants, within sixty (60) days after the Court grants [mal approval or when any appeals are exhausted, whichever date is later.

IT IS SO ORDERED. Dated: April_, 2007

United States District Judge

-- - - ----

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,
-against04-CV-0757(GLS)(RFT)
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff’s Department,
Defendants. -----------------------------------------------------------X
Decision and Order I. Introduction
Pending before the court is the final approval of a class action
Settlement Agreement. On September 5, 2007, this court conducted a final
fairness hearing to determine whether the proposed Settlement Agreement
between the parties was fair, reasonable and adequate, and to address
Class Counsel’s application for an award of attorneys’ fees and costs. The
transcript of that hearing along with this Decision and Order constitutes the
1

full decision of this court. For the reasons that follow, this court approves the settlement
agreement in all respects except as to attorneys’ fees. The court will only permit attorneys’ fees for the time spent by the attorneys for the class at the hourly rates traditionally charged in their native jurisdiction.
Previously, the court reserved on whether it would authorize payment of attorneys’ fees to prosecute an appeal. Because it refused to add a “factor” authorizing a fee award beyond the actual hours expended, the court also stated that counsel would be, compensated for work already performed, and to be performed, which was not reflected in the previously submitted fee documentation (i.e. work for the Final fairness hearing through the filing of the proposed order). In light of oral argument and the proposed order submitted, the court now modifies it previous statement for sake of clarity. Subject to court approval upon submission of accurate billing records, the court authorizes additional compensation to class counsel for work done from the final fairness hearing through the submission of the proposed order. See Dkt. No. 141. The court will not authorize counsel fees to prosecute an appeal, or otherwise provide any future compensation beyond the time expended through the preparation of
2

the proposed order currently before the court. See Dkt. No. 141. Class counsel is to submit, within SEVEN days of this order, the amount of attorneys’ fees for the time expended for the final fairness hearing through the preparation of the proposed order currently before the court.
II. Discussion The court, having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having reviewed the Defendants’ response and opposition regarding attorneys’ fees, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendants, and having considered the submissions by Class members, now rules as follows:
FINDINGS OF FACT i. This action was commenced on June 29, 2004, as a class action. ii. After many months of intensive litigation, including extensive discovery and motion practice before this court, and as a result of intensive, arm’s length negotiations between Class Counsel and Defendants, including a daylong settlement conference before Magistrate Judge Randolph F. Treece on May 17, 2005, the parties have reached
3

accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendants ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the court on November 29, 2006.
iii. As part of the Order Granting Preliminary Approval, this court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement.
iv. As of the deadline for the filing of objections, only one objection was filed. This objection, filed by an individual incarcerated in state prison, failed to detail any basis for the objection. Given the size of this Settlement, and the notice plan described above, this court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendants.
v. Class Counsel has filed with the court affidavits from JoAnn Graff, Rust Consulting, and Dong He Chang, I Partners Inc., declaring that the mailing of the court-approved notice and the
4

maintenance of the settlement website, consistent with the Notice Plan, has been completed. Class Counsel has also filed an affidavit reflecting the notice efforts undertaken by them.
vi. The court finds that the published notice, mailed notice, Internet posting and other notices constitute the best practicable notice of the Fairness Hearing, the proposed Settlement, Class Counsel’s application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of New York and any other applicable law.
vii. Any persons who wished to be excluded from this Action were provided an opportunity to “opt out” pursuant to the Notice. All persons who have validly excluded themselves from this Action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein. The individuals who properly excluded themselves from the Settlement are Frederick Longo and Josephine Hancock.
5

viii. Settlement Class Members are bound by the Settlement, the Settlement Agreement and releases contained therein, and the Final Order and Judgment, and do not have any further opportunity to opt-out of the Action.
ix. Any class member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs’ Class Counsel’s application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
x. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendants in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the court has considered in affirming this Settlement, including:
a. The liability issues in this case have been vigorously contested.
6

b. The court notes that for settlement purposes, this Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the parties to this litigation and among the parties to the individual litigation. This Settlement provides Class Members with a substantial monetary benefit.
c. This Settlement is clearly a byproduct of hard-fought litigation between the parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendants.
xi. Class Counsel submitted to the court and served on the Defendants their application for reasonable attorneys’ fees, costs, and expenses consistent with the terms of the Settlement Agreement.
The court declines to provide a multiplier and/or the percentage method on these fees, for reasons detailed in the court’s bench decision of September 5, 2007, the transcript of which is incorporated by reference herein.
Instead attorneys’ fees in the amount of $343,744.50, which represents the time spent by the attorneys for the class at the hourly rates traditionally charged in their native jurisdictions is awarded. The court also
7

awards Class Counsel’s request for reimbursement of pre-settlement litigation expenses in the amount of $10,053.31.1
xii. The court grants Class Counsel’s request for the reimbursement of expenses relative to the administration of the settlement in the amount of $84,233.40. The court also grants Class Counsel’s request to pay the Settlement Administrator $23,000 for future administrative expenses, for a total of $ 107,233.40. In the event that the costs of future administration are larger than this estimate, the court will entertain an application to have those sums deducted from the amounts held in escrow pending the completion of any appeals.
xiii. Class Counsel has stated their intention to appeal the court’s ruling on attorneys’ fees. Pursuant to the Section III(F)(1) of the Settlement Agreement, the proceeds of the settlement may be distributed immediately, consistent with this order, while the sum of $ 296,202.19 (the disputed amount of attorneys’ fees) will be held in escrow by the Settlement Administrator. This amount will be deposited into an insured interest bearing escrow account entitled the “SCJ Settlement Attorneys’ Fees Escrow Account,” which will be maintained by the Settlement
1 The amounts stated for at torneys’ fees and expenses, based on the proffered time records of class counsel, are reflected in Docket Entries 127 & 128.
8

Administrator, Rust Consulting. No attorney in this proceeding will have signature authority on this account. One of the conditions of this account will be that no funds are allowed to be withdrawn from the account absent an order of the court. The Settlement Administrator will maintain the bank records for this account, and provide them to any party or the court on two business days notice.
xiv. The court will not authorize counsel fees to prosecute an appeal, or otherwise provide any future compensation beyond the time expended through the preparation of the proposed order currently before the court, see Dkt. No. 141, subject to court approval after submission of accurate billing records within SEVEN DAYS of this order.
xv. Should the court’s decision be affirmed, all monies remaining in the “SCJ Settlement Attorneys’ Fees Escrow Account,” with accumulated interest, after deducting amounts allowed to be withdrawn pursuant to the Orders of this court, will be distributed to the claimants on the Settlement on a pro rata basis.
xvi. Class Counsel has provided the court with a list of 861 individuals who filed timely claims on the settlement. The court orders that the claims of these individuals be paid by the Settlement Administrator
9

pursuant to the Settlement Agreement.
xvii. Class Counsel has provided the court with the identities
of thirty-five late claimants on the Settlement. Leave of court his hereby
provided for the thirty-five individuals who filed late claims to participate in
the class action settlement and have their claims on the Settlement
honored in full.
xviii. The claims procedure established under the Settlement
Agreement is fair, a simplified process, and workable. In any event, the
court will retain jurisdiction to work out any unanticipated problems.
This court has jurisdiction over the parties and the subject matter of
this proceeding.
xix. Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, the following Settlement Class is certified for purposes of final
settlement:
All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, violations of probation or parole, or held on civil matters, and claim that they were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
10

xx. The court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a Class Action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for Class certification under Rule 23 are present. The Class members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class members predominate over individual issues and should be determined in one proceeding with respect to all Class members. The Class Representatives’ claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action.
xxi. The Settlement Class Representative, Lessie Davies, is entitled to and is hereby awarded a payment of $12,000.00, in recognition of the efforts she undertook in connection with this lawsuit. William Davis, an individual who had planned to intervene in this action to assist class counsel, is hereby awarded an incentive award of $1,500.00 in addition to his pro rata share of the settlement fund. Former Class Representative Nichole McDaniel will receive no incentive award. All class members who
11

have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after administrative expenses, attorneys’ fees and expenses, incentive awards and the amounts to be placed in escrow under Paragraph xiii of this Order are deducted from the fund.
xxii. The court grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
WHEREFORE IT IS HEREBY ORDERED THAT The Motion for Final Approval of the Proposed Settlement is
GRANTED in part and DENIED in part as follows: 1. The Settlement Class Representative, Lessie Davies, is entitled to and is hereby awarded a payment of $12,000.00, in recognition of the efforts she undertook in connection with this lawsuit. William Davis, an individual who had planned to intervene in this action to assist class counsel, is hereby awarded an incentive award of $1,500.00 in addition to his pro rata share of the settlement fund. Former Class Representative Nichole McDaniel will receive no incentive award.
12

2. All class members who have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after administrative expenses, attorneys’ fees and expenses, incentive awards and the amounts to be placed in escrow under Paragraph xiii of this Order are deducted from the fund.
3. Class Counsel’s application for attorneys’ fees is granted in the amount of $343,744.50. Class Counsel’s request for reimbursement of pre-settlement litigation expenses is granted in the amount of $10,053.31. The sum of $296,202.19 (the disputed amount of attorneys’ fees) will be held in escrow by the Settlement Administrator. This amount will be deposited into an insured interest bearing escrow account entitled the “SCJ Settlement Attorneys’ Fees Escrow Account,” which will be maintained by the Settlement Administrator, Rust Consulting. No attorney in this proceeding will have signature this account. One of the conditions of this account will be that no funds are allowed to be withdrawn from the account absent an
13

order of the court. The Settlement Administrator will maintain the bank records for this account, and provide them to any party or the court on two business days notice. 4. Administration expenses and costs is granted in the amount of $107,233.40. In the event that costs of future administration are larger than this estimate, the court will entertain an application to have those sums deducted from the amounts held in escrow pending the completion of any appeals. 5. This Action and all claims against the Settling defendants are dismissed with prejudice, but the court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. 6. All Class members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendants.
14

Any Class member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum. 7. The court will not authorize counsel fees to prosecute an appeal or otherwise provide any future compensation beyond the time expended through the preparation of the proposed order currently before the court. Class counsel shall submit, within SEVEN DAYS of this order, the amount of attorneys’ fees for the time expended for the final fairness hearing through the preparation of the proposed order currently before the court. See Dkt. No. 141. It is so Ordered. Albany, New York November 5, 2007
15

16

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________

NICHOLE MARIE McDANIEL, et. al.,

Plaintiff,
v. THE COUNTY OF SCHENECTADY, et. al.,

1:04-CV-757 (GLS)

Defendant.

_________________________________

APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFFS:

Office of Elmer R. Keach, III 1040 Riverfront Center P.O. Box 70 Amsterdam, New York 12010

ELMER R. KEACH, III, ESQ

FOR ELMER R. KEACH, III:

Hinshaw, Culbertson Law Firm 780 Third Avenue 4th Floor New York, New York 10017

JOHN R. SUPPLE, ESQ

FOR THE DEFENDANTS:

Goldberg, Segalla Law Firm 885 Third Avenue New York, New York 10022-4834

WILLIAM J. GREAGAN, ESQ.

Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER I. Introduction
There are two unresolved questions remaining in this action: (1) should the judge recuse himself; and (2) should the court sanction plaintiffs’ counsel, Elmer Keach, III, Esq. The question of sanctions arises from both the court’s sua sponte motion and the motion of defense counsel, William Greagan, Esq. The recusal question arises from Keach’s response to the court’s motion. For the reasons that follow, the court denies the recusal motion and declines to sanction Keach. II. Background
The question of sanctions arises in the context of a class action litigation consumed by attorney acrimony throughout its four year history. During settlement negotiations in 2006, the attorneys collectively filed eight letters that were purportedly related to their negotiations.1 (See Dkt. Nos. 86, 87, and 91 through 96.) While the letters reflected an apparent intention to keep them free from public disclosure, they were not filed ex parte as would have been authorized if the parties were seeking judicial
1Judicial practices in this district vary regarding the handling of settlement documents. Some judges never file the documents, instead housing them in a chamber’s folder. Others file the documents under seal. These practices are in a state of flux, principally because of new electronic filing procedures that often leave filing decisions in the hands of lawyers.
2

assistance with their settlement efforts. Furthermore, the parties had no separate confidentiality agreement precluding disclosure of the letters. Greagan sent five letters and requested that they be filed under seal. Keach sent three letters together with sealing requests, but also requested that the court refrain from filing one of the three letters.2
Thereafter, the parties stated they had tentatively settled the suit, and the court scheduled a date for the preliminary approval of the class action settlement. After the court entered a preliminary approval order, the attorneys continued their acrimonious relationship which resulted in further judicial intervention and an amended preliminary order. After still further judicial intervention, the final approval hearing was held on September 5, 2007. Thereafter, the court issued a November 5, 2007, decision and order approving the settlement, but class counsels’ attorneys fees were reduced. Judgment was entered on November 21, 2007. On December 4, 2007, class counsel appealed the court’s fee award.
Thereafter, Keach wrote the court on January 4, 2008, and requested the earlier settlement letters be unsealed. (See Dkt. No. 157.) As
2As the court discussed during a later conference, the letters themselves did not disclose subjects classically associated with settlement issues. (See 2/27/08 Conference Transcript at 15-16; Dkt. No. 173 (hereinafter, “C.T.”).)
3

pertinent, his letter stated:
Class Counsel plans to include these documents in their Joint Appendix regarding the pending appeal on attorneys’ fees. Class Counsel does not believe there is any present basis to have these items filed with the Court under seal, nor should they have to be filed under seal with the Second Circuit, given that the settlement was finally approved by the Court and a judgment to that effect has been entered.
(See id.) On January 10, 2008, the court denied his application, stating the
Second Circuit had full access to the district court’s sealed documents.
(Dkt. No. 158.) On the same day, a local newspaper published an article
quoting the court’s order. (See C.T. at 26-27.)
Thereafter, Greagan contacted the clerk’s office requesting guidance
on disciplinary procedures since he apparently intended to seek Keach’s
disbarment. The court’s courtroom deputy referred Greagan to the
District’s Local Rules. Despite those rules, Greagan filed a letter with the
court seeking disciplinary action against Keach, and mailed a copy of the
letter to Keach. Given the sensitivity of Greagan’s allegations, the
longstanding animosity between Greagan and Keach, and the court’s
regard for fundamental fairness, the court elected not to file Greagan’s
letter. Instead, it scheduled a conference to discuss the matter.
In Greagan’s letter, he mentioned his conversation concerning
4

disciplinary procedures. When Keach received his copy, he called chambers on January 23, 2008, and spoke to the court’s courtroom deputy. As reflected in a “chambers only” docket entry on that date, Keach accused the court of engaging in ex parte communications with Greagan, and demanded an explanation. After his telephone conversation, Keach apparently thought better of his accusation, and wrote the court a letter ostensibly addressing the unrelated Greagan disbarment application. In a footnote, he stated: “I want to make clear that by making this request, I am not implying that either the Court or its staff engaged in any impermissible ex parte communications with Mr. Greagan about the substance of his application to have me disbarred.” (See 1/23/08 Keach Ltr. at 2, fn. 1, Dkt. No. 161; see also C.T. at 49-50.)
On February 27, the court held the scheduled conference. The court denied Greagan’s unfiled disbarment motion, again informing him that disciplinary matters must be referred to the Chief Judge. After reciting the history of the settlement letters and the district’s varying filing procedures post-electronic filing, the court addressed two specific issues: first, Keach’s letter to the court seeking to unseal because of the pending appeal; and secondly, Keach’s allegations regarding improper judicial ex parte
5

communications.
As to the first issue and referencing the court’s order denying his
application to unseal, the following exchange occurred:
The Court: So at the same time you requested that I unseal documents for purposes of your appeal before the Second Circuit, did you disclose my order denying that to the Times Union as it related to their newspaper article that day?
Mr. Keach: Relative to Your Honor’s order which was placed on the ECF system, yes.
The Court: Did you lie to me in your letter to me telling me that you wanted the documents unsealed for purposes of your appellate proceedings when, in truth, you wanted them unsealed so you could disclose something to the Times Union?
Mr. Keach: No.
The Court: Was that one of your purposes in requesting unsealing by me?
Mr. Keach: I believe those documents should be subjected to public disclosure, yes...
The Court: Did you disclose that purpose to me in your application to unseal?
Mr. Keach: No, I don’t believe that was reflected in the letter.
The Court: All right. So what you’re telling me is you engaged in subterfuge with an application to the Court to unseal documents when, in fact, you had an ulterior motive for unsealing those documents that had nothing to do with the reason for which you asked me to unseal them; is that what you’re telling me?
6

Mr. Keach: I don’t believe that is – that is accurate, no. I believe - and I wrote in that letter that there was no present reason that those documents should be filed under seal. And so the record is clear -
The Court: Are you telling me you were without knowledge that the Circuit has authority to review unsealed – or sealed documents in connection with any appeal they’re entertaining of materials or issues that are ongoing in the district court?
Mr. Keach: Actually, Your Honor, the Second Circuit had to specifically request that those documents be provided by the clerk’s office....
(See C.T. at 26-28.) During a subsequent colloquy, the court told Keach
that his unsealing letter was disingenuous fueled by his own ulterior
motives, not some Second Circuit protocol. (See id. at 48-49.)
Parenthetically, and consistent with appellate procedure, the court
subsequently transmitted the sealed documents to the Circuit at its request.
(See Dkt. Nos. 163-64 & 2/06/08 Chambers Entry.)
As to the Keach’s allegation of ex parte communications and his
subsequent letter, the court advised Keach as follows:
The Court: ... In my view that is a specific, hang up the phone, oh, my God, what did I just say to the Court. Let me do what I have a history of doing, denying that I meant what I said and I’ll document it in a letter so that later on I’ve got plausible deniability over the fact that I just accused the Court of illegal ex parte communications.
7

(See C.T. at 50.)
After then reciting Keach’s recurring problems with other judges in
the Northern District, the court then admonished:
The Court: ... You have been dancing on a thin wire for a long time in this district, Mr. Keach. And you ought to be mindful of what you said about a half an hour ago that these kinds of proceedings have a dramatic impact on your ability to earn a living in a variety of courts in a variety of jurisdictions. I appreciate that. I’m not sure that you appreciate it. I’m not sure you listen to yourself when you say those things, as is demonstrated by this pattern of behavior that I’ve just recited to you.
(See id. at 51-52.)
At the conclusion of the hearing, the court issued a sua sponte order
directing Keach to show cause as to why he should not be sanctioned. He
responded with a recusal motion and opposition to the imposition of
sanctions. (See Dkt. No. 182.) Greagan also filed a sanctions motion.
(See Dkt. Nos. 176-77.)
III. Discussion
A. Recusal
Keach seeks recusal pursuant to 28 U.S.C. §455. He claims that the
court’s comments during the underlying proceedings reflect a personal
bias, and that the court cannot resolve factual disputes without a hearing
8

pitting his credibility against that of court personnel. Recusal is mandated when a judge’s “impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a). Similarly, § 455(b)(1) provides for recusal when a judge “has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). Furthermore, § 144 requires recusal if a judge harbors a “personal bias or prejudice” against a party. 28 U.S.C. § 144. The decision to recuse rests within the sound discretion of the judge whose recusal is sought. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992) (citation omitted).
Because the statutory language in §§ 144 and 455(b)(1) is similar and the scope of both is identical, courts have concluded that they should be construed together. See Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). Under both, the recusal standard is “whether a reasonable person, knowing all the facts, would conclude that the court’s impartiality might reasonably be questioned.” Id. Significantly, “[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (emphasis
9

added); see also Apple, 829 F.2d at 333 (noting that the analysis “looks to extrajudicial conduct as the basis for making such a determination, not conduct which arises in a judicial context”). Moreover, the Supreme Court has observed that “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality charge.” Liteky v. United States, 510 U.S. 540, 555 (1994).
As evidence of bias, prejudice and impartiality, Keach references: (1) several statements made by the court during the February 27 conference; (2) the court’s consideration of extrajudicial matters concerning past uncivil behavior; and (3) the court’s failure to credit his letter disavowing any intention of accusing the court of engaging in ex parte communication. Specifically, Keach claims that the court showed bias and prejudice when it “forcefully expressed its view that [his] past alleged instances of uncivil conduct make it more likely, if not certain, that he is guilty of the conduct alleged . . .” (Keach Mem. of Law at 23; Dkt. No. 182.)
Keach concedes he has been warned by other Northern District judges over the last six years about his uncivil behavior and discovery abuse. In fact, this court personally warned him earlier in this litigation. He
10

argues, however, that just because a lawyer is discourteous, it does not axiomatically follow that the lawyer is dishonest. While he acknowledges prior warnings about uncivil behavior, he argues that he has often admitted those allegations and his admissions demonstrate honesty, not dishonesty.
Despite his arguments, Keach has failed to identify any evidence of bias or prejudice stemming from an extrajudicial source. Moreover, the court affirmatively disclaims that any exist. In reality, Keach simply speculates about the courts views, and does so because the court has now challenged his conduct twice in this case. Indeed, lawyers are foolhardy if they fail to realize that judges assess their integrity and honesty during all judicial interactions. Judges inevitably make credibility assessments in much of what they do - whether in the context of arguments advanced by counsel, testimony of witnesses, or, for that matter, when assessing mundane matters such as the genuineness of a proffered reason for an extension request. For precisely that reason, the court would have no difficulty in making credibility determinations in this matter if required to do so. When judging credibility, courts use the same tools employed by all rational human beings called upon to do the same. Thus, a person’s reputation for integrity may be critical which is precisely why lawyers must
11

recognize that their integrity is something they alone control. Once relinquished, integrity is extremely difficult to retrieve. Lastly, judges recognize that the burden of proof serves to resolve close credibility issues, and they typically impose a similar burden on themselves when deciding what, if any action, they ought to take. Consequently, the court believes that more often than not, it errs on the side of caution.
In the court’s view, there is no evidence of extrajudicial bias, prejudice, or impartiality in this record. The only possible argument to the contrary is the court’s recitation of Keach’s prior history in other cases. However, the court’s only purpose in identifying that history was to afford Keach a fair opportunity to address it in any post-conference submission discussing the appropriateness of sanctions. The court was not laboring under any predetermined conclusions drawn from allegations in other cases. Accordingly, there is no bias or prejudice, and Keach’s motion for recusal is denied.
B. Sanctions Because the court has recently discussed sanctions authority, a succinct summary is appropriate. An attorney may be sanctioned: (1) pursuant to Fed. Civ. Pro. R. 11 if he files a paper for an improper purpose;
12

or (2) pursuant to the court’s inherent authority if he acts in bad faith, vexatiously, wantonly, or for oppressive reasons; or (3) if he “multiplies the proceedings . . . unreasonably and vexatiously . . . .” See Zlotnick v. Aretakis, 572 F. Supp.2d 258, 271-273 (N.D.N.Y. 2008). In general, sanctions should be reserved for those instances of subjective bad faith on the part of the offending attorney.
As the court clearly intimated during the February 27 conference, the clouded legal issues in this district regarding sealed settlement documents do not warrant the imposition of sanctions. First of all, the court made no independent judgment regarding the propriety of sealing the documents in the first place. See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Without an accompanying application to seal, the parties labeled the documents and the court simply filed them under seal. Furthermore, both parties had copies of the documents and they never executed a confidentiality agreement nor sought a protective order. Thus, it is not at all clear that disclosure of the documents would have violated a court order. Absent such clarity, the imposition of sanctions is not warranted.
The circumstances surrounding Keach’s unsealing letter and his
13

accusations concerning ex parte communications are more troubling. Collectively, they cause the court to question his candor and honesty. Rather than simply apologize for having been less than fully forthcoming in his unsealing letter, his post-conference affidavit again reverts to his “perfecting an appeal” justification to explain his conduct in the first place. (See Keach Affidavit, Dkt. No. 182-1.) As the earlier quoted colloquy demonstrates, Keach admitted that his search for publicity was a motivating factor in seeking to unseal. Again, however, his postconference affidavit is particularly sparse as to those details. (See id. at ¶ 11.) Furthermore, his publicity admission only surfaced during the colloquy after the court was essentially forced to cross-examine him. So too, the genuineness of his position is undercut by the court’s familiarity with routine Circuit procedures for gathering a sealed record. That observation does not foreclose the possibility that a Circuit case manager may have suggested approaching the district court with an application to unseal. Whether that actually occurred is irrelevant. What is relevant is seeking judicial relief without complete candor as to why the relief is being sought in the first place. As an officer of the court, counsel has a continuing duty of candor to the tribunal. Burns v. Windsor Ins. Co., 31 F.3d 1092,1095 (11th
14

Cir. 1994). As for the ex parte accusation, the court will not hold a hearing to get
at the so-called “truth.” Keach should be mindful of two things. First chambers manages pending cases with detailed docket notations reflected in “chambers only entries” that are not otherwise available to the public. Conversations with attorneys are documented in those entries, especially when past experience demonstrates that such conversations should be documented. The court reviewed those entries before the February 27 conference. Secondly, Keach’s same-day letter with its unrelated footnot disclaimer about allegations of misconduct suggests a concern on his part that someone might have construed the allegation in that way.
What has been said bears repeating. Judges routinely make credibility judgments. Lawyers who give away their integrity find it difficult to retrieve. Sanctions are appropriate when an attorney’s representations subjectively reflect bad faith or, worse yet, when a statement is uttered as a baseless allegation of judicial misconduct. Nonetheless, judges tend to err on the side of caution, especially when - as the court observed during the conference colloquy - an attorney’s livelihood is at stake. IV. Conclusion
15

For the foregoing reasons, the court denies Keach’s recusal motion, declines to impose judicial sanctions, and denies Greagan’s motion for sanctions.
Accordingly, it is hereby ORDERED that Keach’s motion for recusal (Dkt. No. 182) is DENIED; and it is further ORDERED that Greagan’s motion for sanctions (Dkt. Nos. 176-77) is DENIED; and it is further ORDERED that the court DECLINES to impose judicial sanctions pursuant to its order to show cause; and it is further ORDERED that the Clerk provide a copy of this Decision and Order to the parties. IT IS SO ORDERED. February 27, 2009 Albany, New York
16

 
 Case 1:04-cv-00757-GLS-RFT Document 213 Filed 05/05/11 Page 1 of 2

ELMER ROBERT KEACH, III bobkeachOkeachlawfirm.com
ALSO ADMilTED IN MD Be NJ

LAWOP:FJCES
ELMER ROBERT KEACH, III
A PROFESSIONAL CORPORATION
1040 RIVERFRONT CENTER POST OFFICE BOX 70
AMSTERDAM, NEW YORK 12010
TELEPHONE 1518-434-1718 TELECOPIER 518·?70 ·15&8
www.keachlawfirm.com
April18, 2011

BRETT A. ENGEL ASSOCIATE brettengelokeachlawfirm.com
HEATHER H. DECKER PARALEGAL hdec:kerokeaehlawfirm.com

The Honorable Gary L. Sharpe United States District Judge United States District Court
for the Northern District of New York James T. Foley United States Courthouse 445 Broadway Albany, NY 12207
Re: McDaniel u. County ofSchenectady, No. 04-CV-757 (GLS/RFT)
Dear Judge Sharpe:
I am lead counsel in the above-captioned action. Currently, the settlement administrator has a limited number of unclaimed and/or uncashed payments in the settlement escrow account. Presently, approximately 270 class members have not received some or all of their settlement payment, and the total amount of these unclaimed funds is $ 179,163.77. Given that the Court has ruled that the administrator cannot be compensated for additional efforts on behalf of the class after class counsel's unsuccessful appeal on attorneys' fees, the settlement administrator has asked my office to take over this account and address any remaining payments to class members. With permission from the Court, I plan to do so. As the Court is aware, many class members are currently expressing dissatisfaction with not being able to receive their supplemental settlement payments, and I hope to address this problem in short order.
I have discussed this issue with the Defendants' counsel, William Greagan, and we have agreed on a plan to address outstanding payments due to class members. Class Counsel requests leave of Court to have the settlement administrator close their bank account, and to have those funds deposited in a bank account with my office entitled the "SCJ Escrow Account." This bank account will be handled in a manner identical to that provided under the Rules of Professional Conduct for attorney escrow accounts. My office will then endeavor to locate and pay all remaining claimants. The County will provide my office with any new booking information for class members admitted to the Schenectady County Jail after the flrSt distribution following an initial effort by my office to locate these individuals. The County's attorney, and the Court, will have access to information about the bank account, and I will provide the Court with a report on December 1, 2011 regarding any funds remaining in the account. Attorney Greagan and I have not reached an agreement about how to address any unclaimed funds, but plan to discuss the matter later in the year. Should the parties not be able to agree on this point, we will seek a conference with the Court in due course.
I respectfully suggest that Your Honor adopt this proposal, and I have provided a proposed form order at the end of this letter. Thank you for your consideration of this letter.

Case 1:04-cv-00757-GLS-RFT Document 213 Filed 05/05/11 Page 2 of 2
The Honorable Gary L. Sharpe Apri118, 2011, Page 2 Re: McDaniel v. County ofSchenectady
Should Your Honor require anything further, please do not hesitate to contact me.

cc:
ByECF
William Greagan, Esquire Class Counsel
THE COURT, HAVING CONSIDERED CLASS COUNSEL'S PROPOSAL, HEREBY ORDERS AS FOLLOWS:
1. THE SE'M'LEMENT ADMINISTRATOR MAY CLOSE ITS BANK ACCOUNT, AND PAY ALL REMAINING MONIES TO ATTORNEY KEACH FOR CONTINUING ADMINISTRATION.
2. ATTORNEY KEACH WILL DEPOSIT THESE FUNDS INTO A SPECIAL ESCROW ACCOUNT, TO BE ENTITLED THE "SCJ ESCROW ACCOUNT," FOR THE PURPOSE OF LOCATING AND PAYING ALL REMAINING CLASS MEMBERS. ATIORNEY KEACH WILL MAKE ANY BANK STATEMENTS AND CANCELLED CHECKS AVAILABLE TO DEFENDANTS' COUNSEL, AND WILL BEAR THE COSTS OF OPENING AND MAINTAINING THIS BANK ACCOUNT. THIS ACCOUNT WILL BE HANDLED IN A COMPARABLE MANNER TO ATTORNEY ESCROW ACCOUNTS UNDER THE NEW YORK RULES OF PROFESSIONAL CONDUCT.
3. SCHENECTADY COUNTY WILL PROVIDE CLASS COUNSEL WITH BOOKING RECORDS FOR ALL INDMDUALS WHO HAVE NOT BEEN FULLY PAID UNDER THE SETTLEMENT WITHIN A REASONABLE TIME AFTER RECEMNG A WRI'M'EN LIST FROM CLASS COUNSEL OF INDMDUALS WHO ARE NOT ABLE TO BE LOCATED.
4. CLASS COUNSEL SHALL MAKE REASONABLE EFFORTS TO LOCATE AND PAY ALL REMAINING CLASS MEMBERS, AND WILL HAVE SIGNATURE AUTHORITY OVER THE "SCJ ESCROW ACCOUNT" TO FACILITATE PAYMENT TO CLASS MEMBERS.
5. CLASS COUNSEL WILL REPORT TO THE COURT ON DECEMBER 1, 2011 REGARDING THE STATUS OF ANY UNCLAIMED FUNDS, AND A PROPOSAL FOR A DISPOSITION OF THOSE FUNDS, ASSUMING THE PARTIES AGREE ON A DISPOSITION. SHOULD THE PARTIES NOT AGREE, THE PARTIES WILL SEEK A CONFERENCE WITH THE COURT ON OR BEFORE NOVEMBER 15, 2011 TO DISCUSS THE MATTER.

DATED:

------' • #w ~

, ....

-----·· .,-"

 
 McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005)

2005 WL 1745566 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Nichole Marie MCDANIEL, individually and on behalf of a class of others similarly situated, et al.
Plaintiffs, v.
THE COUNTY OF SCHENECTADY, et al., Defendants.
No. 1:04 CV 757 GLS/RFT. | July 21, 2005.
Attorneys and Law Firms
Elmer Robert Keach, III, Amsterdam, New York, for the Plaintiffs, Elmer Robert Keach, III, of counsel.
Goldberg Segalla LLP, Albany, New York, for the Defendants, William J. Greagan, of counsel.
Opinion
REPORT-RECOMMENDATION AND ORDER
TREECE, Magistrate J.
*1 This lawsuit is a 42 U.S.C. § 1983 putative class action in which the purported class alleges that the Defendants violated misdemeanor pretrial detainees’ Fourth Amendment rights to be free from illegal strip searches. Dkt. No. 1, Compl. This litigation has been extraordinarily active, notwithstanding the fact that it is currently within the pre-certification stage.1 Currently before this Court is Defendants’ Motion for Sanctions pursuant to FED. R. CIV. P. 26 and 37(c). Dkt. No. 57.2 Because Lead Plaintiff, Nichole McDaniel, failed on three occasions to appear for her deposition, Defendants ask this Court not only to dismiss her as class representative but to remove her from the putative class as well. Precluding McDaniel from the class poses a novel issue, if indeed not a matter of first impression. For the foregoing reasons, we recommend that the Defendants’ Motion be granted in part and denied in part.
I. PROCEDURAL HISTORY ON MCDANIEL’S DEPOSITION
Attempts to hold McDaniel’s deposition have traveled a

long and unproductive route. Because of this Court’s liberality toward McDaniel in extending several opportunities to her in order for her to be deposed and a number of other intervening events, we are now approaching the moment of reckoning of whether her failure to comply with previous Court Orders will be met with dire consequences.
This action was commenced on July 19, 2004, with Nichole McDaniel and Lessie Lee Davies being named as proposed Lead Plaintiffs. Dkt. No. 1, Compl. Issues were joined on August 9, 2005. Dkt. No. 3, Ans. Early in the litigation a Notice to Depose the two proposed class representatives had been served. Then, in January 2005, a host of discovery disputes arose, which this Court resolved by an omnibus Order. Dkt. No. 25, Order, dated Jan. 10, 2005; see also Dkt. No. 51, Discovery Proceeding Transcript. One of those disputes dealt with McDaniel’s deposition. Apparently she did not appear when required and her attorney attempted, both in writing and at a discovery hearing on the record, to derail a motion to compel and create a more convenient forum for her deposition, or, maybe for them. The Court was unpersuaded by their entreaties and denied the Plaintiffs’ request to hold McDaniel’s deposition in Washington, D.C. as opposed to Schenectady, New York. We further wrote that:
[b]ecause of scheduling issues, this Court will extend the time to depose [McDaniel] to a date and time on or before January 28, 2005, but only if the parties can agree. If they cannot agree, then Ms. McDaniel[ ] shall be deposed on or before January 21, 2005.
Dkt. No. 25, Order, dated Jan. 10, 2005 at pp. 5-6 (emphasis in original).
Apparently McDaniel was unable to comply with this Court’s directives and the matter of when to hold her deposition was discussed, once again, with the Court. After a hearing held, on the record, on February 9, 2005, the Court issued another Order graciously extending McDaniel’s time to be deposed to February 22, 2005, however, this time with a stronger admonition: “In the event Ms. McDaniel[ ] is not deposed on or before February 22, 2005, the Defendants may file a motion for sanction without seeking further court approval.” Dkt. No. 40, Order, dated Feb. 9, 2005 at p. 2. Ostensibly, McDaniel, once again, failed to appear for her deposition, provoking the Defendants to seek this Motion for Sanctions; said Motion’s return date was May 6, 2005. Dkt. No. 57, Defs.’ Mot. for Sanctions. Pursuant to our Local Rules, as noted on the docket report, McDaniel was
1

McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005)

required to serve and file her opposition to this Motion on or before April 19, 2005. As of April 19, 2005, Plaintiffs had not timely responded to the Motion for Sanctions and, therefore, were in default.
*2 In the interim, the parties asked this Court to assist them in a settlement conference, which was set for May 17, 2005. Dkt. No. 60, Order, dated Apr. 26, 2005. A settlement conference was held on May 17th but with little success. Surprisingly, on May 27, 2005, Plaintiffs’ counsel wrote this Court wishing to address two issues, but particularly, whether they would have an opportunity to provide opposition to the Defendants’ Motion for Sanctions. Dkt. No. 61, Elmer R. Keach, Esq., Lt., dated May 27, 2005. The request to submit opposition to Defendants’ Motion was framed as follows:
This motion has been held in abeyance by the Court pending the settlement conference held by the Court last week. Plaintiffs’ counsel would like to provide a short response to this motion, and requests that the Court provide a date by which such a response can be filed as well as a return date for the motion.
Id.
The Plaintiffs were clearly mistaken on the facts. On the same day that the Court received Plaintiffs’ request, the Court issued a Text Order clarifying the status of the Defendants’ Motion. Therein, the Court noted that Plaintiffs had defaulted in opposing the Motion prior to any request to this Court to participate in settlement negotiations. If any action was held in abeyance, it was only the issuance of an order on the Motion. Text Order, dated May 27, 2005; see Dkt. No. 62, William J. Greagan, Esq., Lt., dated June 1, 2005 (concurring with the Court’s recollection of the Motion’s status). However, the Court was concerned about the novel issue of whether McDaniel, if dismissed from this action as class representative, could be precluded from joining the class and, therefore, asked the parties to provide letter-memorandums addressing this singular issue. Text Order, dated June 2, 2005. Both parties complied and file letter-memoranda. See Dkt. Nos. 67 & 69.

wish to eliminate McDaniel completely from this litigation inasmuch as she failed to participate in her deposition, which would be a fatal diminution of her claim, and this Court’s invitation to the parties to provide legal precedent for such sanctions, we will address this matter on the merits.3
A. Class Representative One or more members of a putative class may act as class representative on behalf of the class if certain prerequisites are met. FED. R. CIV. P. 23(a). Two essential prerequisites for designation as class representative that a court must ponder are whether the claims of the representative party are typical of the claims of the class and will the representative party “fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(3) & (4). In order to have standing as a class representative, it is essential that she possess the same interest and suffer the same injuries shared by all members of the class. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974) (citations omitted). “Rule 23(a)(3) is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992) (citations omitted). In essence, the class representative is a fiduciary and the promotion of the class’s interests are “dependent upon his diligence, wisdom and integrity.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549 (1949) (quoted in Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.1983)). In order to determine if the class representative will discharge her fiduciary obligations faithfully in fairly and adequately representing the class, a court must examine various factors such as credibility, reliability, and potential conflicts. Koenig v. Benson, 117 F.R.D. 330, 333-34 (E.D.N.Y.1987). Where the credibility of a person seeking to be a class representative is under serious attack, that person can be disqualified as lead plaintiff. Abrams v. Interco Inc., 719 F.2d 23, 33 (2d Cir.1983); see also In re Frontier Ins. Group., Inc. Sec. Litig., 172 F.R.D. 31, 47 (E.D.N.Y.1997) (citing Panzier v. Wolf, 663 F .2d 365 (2d Cir.), vacated on other grounds sub nom, 459 U.S. 1105 (1982), for the proposition that a class representative can be disqualified for lack of credibility).

II. DISCUSSION
As stated above, by failing to timely oppose the Defendants’ Motion for Sanctions, the Plaintiffs’ have defaulted and this Motion could be decided on this procedural faux pas alone, thereby imperiling her status as class representative. However, because of the Defendants

*3 Assuming this fiduciary role, the class representative must vigorously pursue all facets of the litigation in the interest of the class. MANUAL OF COMPLEX LITIG. § 21.26 (4th ed.2004). This vigorous representation includes complying with reasonable discovery obligations and failure to do so strongly intimates that the class representation is inadequate. 6 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 23.25[c][1] (3d ed.2005). Refusing to answer proper
2

McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005)

discovery inquiries inexpugnably suggests that the representative would be less than adequate. Kline v. Wolf, 702 F .2d at 403. “One who will not comply wholeheartedly and fully with the discovery requirements of modern federal practice, is not to be regarded by this Court as one to whom the important fiduciary obligation of acting as a class representative should be entrusted.” Norman v. Arcs Equities Corp., 72 F.R.D. 502, 506 (S.D.N.Y.1976). This is especially true when the class representative refrains from appearing at her deposition. McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir.1981) (failing to appear for deposition); In Re Lloyd’s Am. Trust Fund Litig., 1998 WL 50211, at *11 (S.D.N.Y. Feb. 6, 1998) (disqualifying a class representative who gave “garbled” testimony at a deposition).
Here, on no less than three occasions, this Court directed McDaniel to participate in a deposition. For whatever her reasons, McDaniel neglected to do so. Moreover, Plaintiffs’ counsel now admits that they are unable to locate her. Dkt. No. 61. Not only has she failed to meet her obligations in prosecuting this matter, but she also appears to have questionable judgment and credibility. Abrams v. Interco Inc., 719 F.2d at 33. For this reason, we recommend that Ms. McDaniel be dismissed as class representative.
B. Dismissal of the Complaint The Defendants bring this Motion for Sanctions pursuant to FED. R. CIV. P. 37(d). This statute reads in relevant parts as follows:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a

certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
*4 To be clear, in addition to making such an order that is just for such failures, a court may consider the following possible course of action set forth in FED. R. CIV. P. 37(b)(2): (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
Obviously, sanctions serve several useful purposes: (1) ensure that the offending party will not be able to profit from her failure to comply; (2) provide a strong deterrence to the non-compliant party and to others in the public; and (3) secure compliance with an order. Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979).4
The imposition of sanctions under Rule 37 is within the discretion of the court. Valentine v. Museum of Modern Art, 29 F .3d 47, 49 (2d. Cir.1994); Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 765 (2d. Cir.1990); Scott v. Town of Cicero Police Dep’t, 1999 WL 102750 (N.D.N.Y. Feb. 24, 1999) (Munson, J.). Before imposing sanctions the court may consider: (1) the history of the party’s failure to comply with court orders; (2) whether the party violating the order was given ample time to respond; (3) the effectiveness of alternative sanctions; (4) whether the non-complying party was warned and given an opportunity to argue the impending sanctions; (5) the
3

McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005)

prejudice to the adversary caused by the failure to comply; (6) whether the document at the issue would normally be readily obtainable; and (7) the extent of the party’s personal responsibility. Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 852-54 (2d Cir.1995); Momah v. Messina Mem’l. Hosp. & Bond, 1998 WL 129045, at *5 (N.D.N.Y. Mar. 6, 1998).
The imposition of sanctions is a drastic remedy and should be considered when it has been established that a party’s noncompliance or failure was due to wilfulness, bad faith or a callous disregard of the responsibilities mandated by the Federal Rules of Civil Procedure or a court order. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 639-40 (1976) (citing Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958)); State of New York v. Almy Bros., Inc., 1998 WL 57666, at *9 (N.D.N.Y. Feb. 4, 1998) (McCurn, J); Hinton v. Patnaude, 162 F.R.D. 435, 439 (N .D.N.Y.1995) (McAvoy, J) (flagrant bad faith). Moreover, gross negligence on the part of a non-compliant party can suffice as wilful and flagrant bad faith, and in some instances, ordinary negligence may be sufficient as well. Cine Forty-Second Street Theatre Corp., 602 F.2d at 1062 (deliberate tactical intransigence and/or gross negligence); see also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir.2002) (ordinary negligence); Burks v. Eagan Real Estate Inc., 742 F.Supp. 49, 51-52 (N.D.N.Y.1990) (drastic remedy of a default judgment should not be considered unless the failure to comply was the result of bad faith or gross negligence).
*5 In order for an act to constitute wilfulness, the court’s order must be clear and there is no misunderstanding of the intent of the order, and, further, there is no other factor beyond the party’s control which contributed to the non-compliance. Bambu Sales, 58 F.3d at 852-53. And a party’s “ ‘persistent refusal to comply with a discovery order’ presents sufficient evidence of willfulness or bad faith.” Handwerker v. AT & T Corp., 211 F.R.D. 203, 209 (S.D.N.Y.2002) (quoting Monaghan v. SZS 33 Assoc., L.P., 148 F.R.D. 500, 509 (S.D.N.Y.1993)). However, Rule 37 permits the saving grace of substantial justification or harmlessness to blunt the impact of sanctions. Grdinich v. Bradlees, 187 F.R.D. 77, 79 (S.D.N.Y.1999) (citing Hinton v. Patnaude, 162 F.R.D. at 439). Substantial justification in this context means “justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request.” Jockey Int’l Inc. v. M/V “Leverkusen Express”, 217 F.Supp.2d 447, 452 (S.D.N.Y.2002) (quoting Henrietta D. v. Giuliani, 2001 WL 1602114, at *5 (S.D.N.Y. Dec. 11, 2001)).
There is no exception to honoring and respecting discovery orders. For example, all litigants and litigators, including pro ses, must comply and when they flout their

obligation, they must suffer the consequences of such action. Baker v. Ace Advertisers’ Serv. Inc., 153 F.R.D. 38, 40 (S.D.N.Y.1992); see also Valentine v. Museum of Modern Art, 29 F.3d at 50 (imposing sanctions on pro se plaintiff); Scott v. Town of Cicero, 1999 WL 102750 (providing pro se plaintiff an additional opportunity to be heard before imposing sanctions).
Furthermore, a court may turn to those inherent powers, which are innate to its creation, to impose respect for its lawful mandates. United States v. Seltzer, 227 F.3d 36, 39-42 (2d Cir.2000); DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir.1998). Federal courts have always had the inherent power to manage their own proceedings and to control the conduct of those who may appear before them, and when a party acts “in bad faith, vexatiously, wantonly, or for oppressive reasons,” the courts may exercise their discretion in fashioning a remedy. Chambers v. NABSCO, Inc., 501 U.S. 32, 45-46 (1991) (internal quotation marks and citations omitted). Even in the absence of a discovery order, a court may impose sanctions for misconduct during discovery through this inherent power to manage its affairs. Residential Funding Corp., 306 F.3d at 106-07. However, before a court can exercise this enormous power, it should do so with restraint and upon the finding of bad faith and where abuse of litigation practices are evident. DLC Management Corp., 163 F.3d at 136; see also Sanders v. City of New York, 218 F.Supp.2d 538, 542-43 (S.D.N.Y.2002) (citing Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d Cir.1999), for the proposition that when a court exercises its inherent power to impose sanctions for the discovery abuse of spoilation, neither bad faith nor intentional misconduct is necessary).
*6 From the record before this Court, evidently, the Defendants and the Court graciously gave McDaniel significant opportunities to comply with discovery requests. Although we cannot conclude that she acted entirely with bad faith or with intentional misconduct in mind, she has, nonetheless, failed on at least three occasions, to make an effort to appear for her deposition, without apology or explanation. Persistent refusals to comply with discovery orders, after being forewarned, is tantamount to wilfulness. The Court recalls that her attorneys repeatedly asked for more concessions to accommodate her presence at her deposition, in which most of those importunes were granted. Certainly, considering the number of Orders from this Court addressing McDaniel’s depositions, there could not be any confusion as to what was required of her and what the consequences would be if she failed to oblige not only the notice of deposition but this Court’s orders. McDaniel’s repeated failures to appear, under these circumstances, evidences a flouting of her obligation, and, to an ineluctable extent, she must suffer some consequence. Moreover, no substantial justification for her recalcitrance nor gross negligence has been satisfactorily proffered.
4

McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005)

And now, her present disappearance only exacerbates her non-compliance with the Court’s mandates. Although this is a drastic remedy, we recommend that those allegations set forth within the Complaint which specifically refer to her circumstances be deleted from the Complaint. Dkt. No. 1 at ¶¶ 3 & 39-44.

*7 RECOMMENDED, that Nichole McDaniel not be classified as putative class representative; and it is further
RECOMMENDED, that her cause of action be stricken from the Complaint; and it is further

However, this Court is not prepared to eliminate all of her association with this lawsuit, at least at this moment. As a broad principle of class action litigation, rarely are class members required to submit to discovery. MANUAL OF COMPLEX LITIG. at § 21.41. If we were to assume that McDaniel was not being considered as the class representative in the first instance and was contemplated only as a member of the class, it would be safe to presume that she would not be subject to a deposition, even though she may be required to show that she has a viable claim that could be prosecuted by this class action. Under those circumstances, she would not be a victim of the nuclear option recommended above. McDaniel should still be given one last chance to prove her claim as a class member if the class is certified by the District Court. The moment when a definitive definition of the class is secured so that the District Court can determine whether a particular individual is or is not a member of the proposed class would be the best opportunity to determine if McDaniel should be included within the class. Adames v. Mitsubishi Bank, Ltd., 133 F.R.D. 82, 88 (E.D.N .Y.1989); 6 MOORE’S FEDERAL PRACTICE § 23.32[2]. The juncture where proposed claims are determined to be viable should be the moment when a decision should be made whether she can prevail and participate as a class member.

RECOMMENDED, that Nichole McDaniel be allowed an opportunity to file a proposed claim in this action should this case be certified as a class action pursuant to FED. R. CIV. P. 23, and at the moment she is required, along with all of the other prospective members of the class, to submit her claim to the District Court, the District Judge may determine if she should be permitted to participate as a class member; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order, by regular mail, upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b), 6(a), & 6(e).
IT IS SO ORDERED
	  

WHEREFORE, based on the foregoing, it is hereby

Footnotes

1

Currently pending before the Honorable Gary L. Sharpe, United States District Judge, are several interconnected matters:

(1) Defendants’ Motion for Summary Judgment. See Dkt. Nos. 33, 35, 36, 38, 48, & 55.

(2) Defendants’ Appeal of this Court’s Discovery Order, dated January 10, 2005. See Dkt. No. 25, 29 & 47.

(3) Plaintiffs’ Appeal of this Court’s Discovery Order, dated February 9, 2005. See Dkt. Nos. 40, 43, & 56.

(4) Defendants’ Motion To Amend Answer and for Partial Summary Judgment. See Dkt. Nos. 58, 66, & 68.

All of these Motions have been adjourned several times and the new return date for all is September 29, 2005. See Dkt. No. 72.

2

The Defendants originally noticed this Motion before District Judge. Dkt. No. 57. In accordance with the Local Rules of this

District, Judge Sharpe re-noticed the Motion to the undersigned. N.D .N.Y.L.R. 72.1(a). However, due to the dispositive nature of

the relief sought, it is prudent to recommend a course of action for the District Court.

3

Neither party was able to cite any legal precedent to assist us in the discussion of whether a dismissed class representative can be

permanently removed from all phrases of the class action.

4

There is a spectrum of sanctions ranging from the mildest of reimbursing for expenses to the harshest, order of dismissal or default.

Cine Forty-Second Street Theatre, 602 F.2d at 1066; see also Valentine v. Museum of Modern Art, 29 F.3d 47 (2d Cir.1994).

	  
5

McDaniel v. County of Schenectady, Not Reported in F.Supp.2d (2005) 6

 
 CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 5.1.1]
(Albany) CIVIL DOCKET FOR CASE #: 1:04−cv−00757−GLS−RFT

McDaniel et al v. The County of Schenectady et al Assigned to: Chief Judge Gary L. Sharpe Referred to: Magistrate Judge Randolph F. Treece Case in other court: 2nd Circuit, 07−05580−cv
2nd Circuit, 09−01296−cv Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/29/2004 Date Terminated: 11/21/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Nichole Marie McDaniel individually and on behalf of a class of others similarly situated

represented by Charles J. LaDuca Cuneo, Gilbert Law Firm − MD Office 8120 Woodmont Avenue Suite 810 Bethesda, MD 20814 202−789−3960 Fax: 202−789−1813 Email: charlesl@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles A. Schneider Whitfield, Bryson Law Firm − DC Office 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036 202−429−2290 Fax: 202−429−2294 Email: cschneider@masonlawdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gary E. Mason Whitfield, Bryson Law Firm − DC Office 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036 202−429−2290 Fax: 202−429−2294 Email: gmason@wbmllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan W. Cuneo Cuneo, Gilbert Law Firm − DC Office 507 C Street, N.E. Washington, DC 20002

Plaintiff Lessie Lee Davies individually and on behalf of a class of others similarly situated
V. Defendant County of Schenectady

202−789−3960 Fax: 202−789−1813 Email: jonc@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce E. Menken Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: bmenken@bmbblaw.com ATTORNEY TO BE NOTICED
Jason J. Rozger Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: jrozger@bmbblaw.com ATTORNEY TO BE NOTICED
represented by Charles J. LaDuca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles A. Schneider (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan W. Cuneo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce E. Menken (See above for address) ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED
represented by William J. Greagan Goldberg, Segalla Law Firm − Albany

Defendant Harry Buffardi both individually and in his official capacity as Sheriff of the County of Schenectady
Defendant Gordon Pollard both individually and as Undersheriff of the County of Schenectady
Defendant Robert Elwell, Sr. both individually and as Major in the Schenectady County Sheriff's Department
Intervenor Elmer Robert Keach, III

Office 8 Southwoods Boulevard Suite 300 Albany, NY 12211−2526 518−463−5400 Fax: 518−463−5420 Email: WGreagan@goldbergsegalla.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William J. Greagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William J. Greagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William J. Greagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John R. Supple Hinshaw, Culbertson Law Firm − NY Office 780 Third Avenue 4th Floor New York, NY 10017 212−471−6200 Fax: 212−935−1166 Email: rsupple@hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach , III (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/29/2004 06/29/2004 06/29/2004
08/09/2004 08/09/2004

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 150 receipt number 75057.), filed by Lessie Lee Davies, Nichole Marie McDaniel.(wjg, ) (Entered: 06/29/2004)
Summons Issued as to Harry Buffardi, Robert Elwell Sr., Gordon Pollard, The County of Schenectady. (wjg, ) (Entered: 06/29/2004)
2 G.O. 25 FILING ORDER ISSUED Initial Conference set for 11/3/2004 10:30 AM in Albany before Magistrate Judge Randolph F. Treece. Civil Case Management Plan due by 10/25/2004. (wjg, ) (Entered: 06/29/2004)
3 ANSWER to Complaint by Harry Buffardi, Robert Elwell Sr., Gordon Pollard, The County of Schenectady.(Greagan, William) (Entered: 08/09/2004)
CLERK'S CORRECTION OF DOCKET ENTRY Attorney William Greagan added for Defendants pursuant to filing of 3 Answer to Complaint (amt, ) (Entered: 08/09/2004)

09/10/2004 10/25/2004 10/26/2004 10/27/2004
11/03/2004 11/03/2004 11/05/2004 11/08/2004 11/29/2004 11/30/2004

4 CIVIL CASE MANAGEMENT PLAN by Lessie Lee Davies, Nichole Marie McDaniel. (Keach, Elmer) (Entered: 09/10/2004)
5 CIVIL CASE MANAGEMENT PLAN Amended after Conference by Lessie Lee Davies, Nichole Marie McDaniel. (Keach, Elmer) (Entered: 10/25/2004)
6 Letter from Elmer Keach for Lessie Lee Davies, Nichole Marie McDaniel requesting Discovery and Motion Conference on November 3, 2004. (Attachments: # 1 Unreported Wright Decision)(Keach, Elmer) (Entered: 10/26/2004)
7 TEXT ORDER: A Rule 16 Conference is scheduled for November 3, 2004. The parties are required under Fed. R. Civ. P. 26(f) to meet and confer before the Rule 16 Conference and then submit a joint civil case management plan. Rather than comply with that directive and the recommendation from this Court's Chambers, the Court has received separate case management plans with superfluous statements as well as correspondence to the effect of either noncompliance with the Federal Rules or a lack of a consensus in the plan. Then a subsequent case management plan is submitted with no consensus on any point reflected therein. In this respect both parties have failed to comply with the Federal Rules and this Court's expectations. THIS NONSENSE SHALL CEASE IMMEDIATELY. The personal animus between the litigators will not be tolerated by this Court in any form or fashion. There are other provisions of the Federal Rules and the Local Rules which require the parties to confer in good faith before invoking the Court's intervention, and this Court will hold the parties to such requirements. This is a warning: Failure to do so may lead to Sanctions.Further, by a letter dated October 26, 2004, Plaintiffs' Counsel has asked for a discovery conference as a part of the Rule 16 Conference. At this late juncture, there is not enough time allotted for the Conference to address the discovery disputes. A subsequent discovery conference may be required. Nonetheless, the Plaintiffs' Counsel is required to provide to this Court further case law to support Plaintiffs'position on or before November 3, 2004. The Defendants' Counsel is required to provide a written response to the Plaintiffs' letter with case law to support their positions on or before November 3, 2004. SO ORDERED.(Treece, Randolph) (Entered: 10/27/2004)
8 LETTER BRIEF Addressing Pending Disputes over Protective Orders by Lessie Lee Davies, Nichole Marie McDaniel. (Keach, Elmer) (Entered: 11/03/2004)
11 Minute Entry for proceedings held before Judge Randolph F. Treece : Elmer Keach, Esq., William Greagan, Esq., Jason Rozger, Esq.;Initial Pretrial Conference held on 11/3/2004; Parties opt out of ADR Program; deadlines set; Order to be issued. (rzh, ) (Entered: 11/16/2004)
9 LETTER BRIEF by Harry Buffardi, Robert Elwell Sr., Gordon Pollard, The County of Schenectady. (Greagan, William) (Entered: 11/05/2004)
10 LETTER BRIEF In Response to Defendants' 11.05.04 Submission and Addressing Amendment of Complaint by Lessie Lee Davies, Nichole Marie McDaniel. (Keach, Elmer) (Entered: 11/08/2004)
12 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 30. Preferred Trial Location: Albany. Joinder of Parties due by 4/1/2005. Discovery due by 10/15/2004. Motions to be filed by 1/15/2006. Trial Ready Deadline is 1/15/2006. Signed by Judge Randolph F. Treece on 11/29/04. (tab) (Entered: 11/30/2004)
13 TEXT ORDER: Both parties made applications seeking either a protective order or discovery. Both parties filed letter−memoranda with the Court in support of their respective application. On November 30, 2004, a telephonic hearing, on the record, was held, wherein the parties were given further opportunity to supplement their respective arguments. After considering all arguments made, and due deliberation being given, this Court entered Rulings, on the record, addressing both of the discovery issues presently before the Court, and further advising the parties that no written decision will be forthcoming. Therefore, it is hereby ORDERED, that the parties are directed to following the Court's Rulings, as set forth on the record. SO ORDERED.(Treece, Randolph) (Entered: 11/30/2004)

12/01/2004 12/02/2004 12/03/2004 12/09/2004 12/23/2004
12/24/2004
12/28/2004 01/03/2005 01/05/2005
01/05/2005 01/05/2005 01/06/2005

14 Letter from Elmer Keach for Lessie Lee Davies, Nichole Marie McDaniel requesting Discovery Conference. (Keach, Elmer) (Entered: 12/01/2004)
15 Letter for Harry Buffardi, Robert Elwell Sr., Gordon Pollard, The County of Schenectady requesting Denying Plaintiff's Request for Conference. (Greagan, William) (Entered: 12/02/2004)
16 NOTICE &ORDER re: scheduled Hearing: Hearing to address discovery issues and behavior of litigators set for 12/9/2004 09:30 AM in Albany before Magistrate Judge Randolph F. Treece. (wjg, ) (Entered: 12/03/2004)
17 ORDER re: Discovery deadlines . Signed by Judge Randolph F. Treece on 12/9/04. (tab) (Entered: 12/13/2004)
18 Letter from Elmer Keach for Lessie Lee Davies, Nichole Marie McDaniel requesting Discovery Conference. (Attachments: # 1 Stipulation and Protective Order re: Jail Inspection from Marriott Action# 2 Defendants' 12.20.04 letter addressing Jail Inspection# 3 Order from Judge Peebles regarding production of booking sheets in Marriott# 4 Protective Order relative to booking sheets in Marriott)(Keach, Elmer) (Entered: 12/23/2004)
19 Letter for Harry Buffardi, Robert Elwell Sr., Gordon Pollard, The County of Schenectady requesting Denial of plaintiff's request for discovery conference. (Attachments: # 1 Attachment − Plaintiff's Proposed Stipulation for Site Inspection# 2 Attachment − December 16th email correspondence from plaintiff# 3 Attachment − December 20th correspondence from defendants' counsel# 4 Attachment − December 20th Email correspondence from plaintiff's counsel# 5 Attachment − December 20th correspondence from defendants' counsel# 6 Attachment − December 20th correspondence from plaintiff's counsel)(Greagan, William) (Entered: 12/24/2004)
20 NOTICE of Hearing: Telephonic Discovery Conference (on the record) set for 1/7/2005 04:00 PM in Albany before Magistrate Judge Randolph F. Treece. (tab) (Entered: 12/28/2004)
21 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Confirming briefing schedule and requesting consideration of two other issues during 1.6.05 discovery conference. (Keach, Elmer) (Entered: 01/03/2005)
22 LETTER BRIEF Addressing Jail Inspection and Production of Booking Records by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Exhibit A −− Unreported Babbitt Decision# 2 Exhibit B −− Plaintiffs' Initial Submission on Booking Sheets −− Marriott# 3 Exhibit C −− Defendants' Responding Submission on Booking Sheets −− Marriott# 4 Exhibit D −− Plaintiffs' Reply Submission on Booking Sheets −− Marriott# 5 Exhibit E −− Defendants' Surreply Submission on Booking Sheets −− Marriott# 6 Exhibit F −− Lessie Davies Booking Record# 7 Exhibit G −− Unreported Melendez decision# 8 Exhibit H −− Montgomery Co. Sheriff's Department Annual Reports)(Keach, Elmer) (Entered: 01/05/2005)
23 LETTER BRIEF supplementing prior submission with court transcript from Marriott action by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Marriott Transcript −− 12.18.03)(Keach, Elmer) (Entered: 01/05/2005)
24 LETTER BRIEF in response to plaintiff's 12/23/04 and 1/3/05 letters to the Court by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Greagan, William) (Entered: 01/05/2005)
TEXT NOTICE of Hearing: Discovery Hearing set for 1/7/2005 at 03:45 PM before Magistrate Judge Randolph F. Treece. Due to another request to resolve outstanding discovery disputes, this Court previously scheduled a discovery hearing for 1/7/2005 at 4:00 p.m. to be conducted by telephone conference. However, after reviewing the parties' voluminous and often rehased arguments, and further recalling the disagreeable and intemperate nature of previous oral arguments, whether by phone or in person, this Court has decided to rescind the courtesy of a telephonic conference and now requires the parties' respective attorney's PERSONAL APPEARANCE in order to address the discovery issues at hand. Furthermore, the time of the hearing has been changed from 4:00 p.m. to 3:45 p.m. FAILURE TO APPEAR MAY SUBJECT THE ATTORNEYS TO

01/06/2005 01/10/2005 01/11/2005 01/11/2005 01/14/2005 01/20/2005
01/26/2005 01/28/2005 01/28/2005 01/31/2005

SANCTIONS. NO EXCUSES WILL BE CONSIDERED. Treece, Randolph) (Entered: 01/06/2005)
Minute Entry for proceedings held before Judge Randolph F. Treece : Appearances: Elmer Keach, Esq.; William Greagan, Esq.; Discovery Hearing held On the Record 1/6/2005. (rzh, ) (Entered: 01/12/2005)
25 ORDER extending deadline to move for class certification until 4/30/05. Signed by Judge Randolph F. Treece on 1/10/05. (tab) (Entered: 01/10/2005)
26 PROTECTIVE ORDER. Signed by Judge Randolph F. Treece on 1/11/05. (tab) (Entered: 01/11/2005)
27 TRANSCRIPT of Proceedings held on November 30, 2004 before Judge Randolph F. Treece (telephone conference). Court Reporter: Theresa Casal. (tab) (Entered: 01/12/2005)
28 Letter from William J. Greagan for The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting An Order from the Court stating that attorney−client privilege and the work product doctrine are inapplicable to the factual information requested and directing plaintiffs to fully and completely respond to the defendants' interrogatories before depositions of any employee of Schenectady County Jail are conducted.. (Greagan, William) (Entered: 01/14/2005)
29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking records for all misdemeanor arrestees for the period June 29, 2001 through June 29, 2004, or in the alternative, reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking records for all misdemeanor arrestees for the period June 29, 2001 through June 29, 2004 and permitting the defendant to make a formal motion for a protective order regarding the disclosure of the booking records, together with such other and further relief as to the Court seems just and proper re 23 LETTER BRIEF, 24 LETTER BRIEF, Notice of Hearing,,,, 25 Order, 26 Protective Order, 18 Letter Request,, 19 Letter Request,,, 20 Notice of Hearing, 21 Letter Request, 22 LETTER BRIEF,, Motion Hearing set for 3/17/2005 10:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 2/28/2005 Reply to Response to Motion due by 3/7/2005. by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Statement of Record on Appeal# 2 Affirmation in Support of Objection# 3 Memorandum of Law in Support of Objections to Magistrate's Ruling# 4 Westlaw Attachments# 5 Cover Letter to Clerk# 6 Certificate of Service)(Greagan, William) (Entered: 01/20/2005)
30 LETTER BRIEF In Response to Defendants' Request to Compel Production of Identification of Witnesses by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 1.10.05−−email from Defendants' Counsel# 2 mti technologies decision# 3 US v. District Council decision# 4 Williams v. McCausland decision)(Keach, Elmer) (Entered: 01/26/2005)
31 NOTICE of Appearance by Jason J. Rozger on behalf of all plaintiffs (Rozger, Jason) (Entered: 01/28/2005)
32 NOTICE of Appearance by Bruce E. Menken on behalf of all plaintiffs (Menken, Bruce) (Entered: 01/28/2005)
33 MOTION for Summary Judgment Motion Hearing set for 3/3/2005 10:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 2/14/2005 Reply to Response to Motion due by 2/22/2005. by Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Affidavit of William J. Greagan# 2 Exhibit(s) A to Affidavit of William J. Greagan# 3 Exhibit(s) B of Affidavit of William J. Greagan# 4 Exhibit(s) C of Affidavit of William J. Greagan# 5 Exhibit(s) D − Transcript Part 1# 6 Exhibit(s) D − Transcript − Part 2# 7 Affidavit of Harry Buffardi# 8 Affidavit of Gordon Pollard# 9 Affidavit Robert Elwell# 10 Statement of Material Facts # 11 Memorandum of Law # 12 Exhibit(s) Westlaw Citation Part 1# 13 Exhibit(s) Westlaw Citation Part 2# 14 Certificate of Service)(Greagan, William) (Entered: 01/31/2005)

02/01/2005 02/01/2005
02/02/2005 02/04/2005 02/04/2005 02/07/2005 02/07/2005 02/07/2005
02/08/2005

34 Letter from William J. Greagan for The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting leave to make motion for the sanction of dismissing the claims of plaintiff Nichole Marie McDaniel pursuant to Rules 26 and 37 of the Federal Rules of Civil Procedure. (Greagan, William) (Entered: 02/01/2005)
TEXTORDER: Defendants seek permission to serve and file a Motion to Dismiss pursuant to Rules 26 and 37. See re 34 Letter Request, filed by The County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi. Therefore, the Plaintiffs shall serve and file a very brief response to this letter request by Friday, February 4, 2005, at 4:00 p.m. Upon the receipt of the Plaintiffs' letter, the Court may schedule a telephone conference. Signed by Judge Randolph F. Treece on 2/1/05. (Treece, Randolph) (Entered: 02/01/2005)
35 Letter from Plaintiffs for Lessie Lee Davies requesting On consent, extension of Plantiff's time to respond to Defendants' objections to Magistrate Judge Treese's January 10, 2005 order to March 5, 2005. (Rozger, Jason) (Entered: 02/02/2005)
NOTICE of Hearing: Discovery Hearing set for 2/9/2005 04:00 PM in Albany before Magistrate Judge Randolph F. Treece. (lmd, ) (Entered: 02/04/2005)
36 Letter from William J. Greagan for Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting leave to refile Statement of Facts with citations. (Greagan, William) (Entered: 02/04/2005)
37 LETTER BRIEF Responding to Defendants' Submission on Nichole McDaniel and Requesting Motion Conference with the Court by Nichole Marie McDaniel, Lessie Lee Davies. (Keach, Elmer) (Entered: 02/07/2005)
38 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Opposing Defendants' Request for Leave to File Amended Statement of Material Fact on Basis that Underlying Motion is Untimely. (Keach, Elmer) (Entered: 02/07/2005)
39 RESPONSE TO LETTER BRIEF filed by Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 33 Motion for Summary Judgment,,, filed by Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 34 Letter Request, filed by The County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, Order,,, 12 Uniform Pretrial Scheduling Order,, 36 Letter Request filed by Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 37 LETTER BRIEF filed by Nichole Marie McDaniel,, Lessie Lee Davies,, 38 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies,. (Attachments: # 1 Text Order of Magistrate Treece and Mr. Keach's February 6, 2005 letter)(Greagan, William) (Entered: 02/07/2005)
TEXT ONLY ORDER − On January 20, 2005, Defendants filed an appeal of a magistrate's decision with a motion return date of March 17, 2005. See dkt. no. 29. On January 31, 2005, Defendants filed a motion for summary judgment upon the grounds that the court lacks personal jurisdiction with a motion return date of March 3, 2005. See dkt. no. 33. On February 2, 2005, plaintiffs filed a request, with consent of the defendants, to extend the response deadline of the pending appeal of a magistrate's decision until March 5, 2005. See dkt. no. 35. On February 4, 2005, Defendants filed a request to refile their statement of material facts for the facts lacked the citations to the record required by Local Rule 7 of this district. See dkt. no. 36. On February 7, 2005, Plaintiffs filed an opposition to Defendants' request for leave to file an amended statement of material facts. Plaintiffs cite that the motion for summary judgment is untimely and patently frivolous. Plaintiffs further contend that the defendants did not seek their consent to this request and ask the court to strike the pending motion for failure to comply with the local rules. See dkt. no. 38. On February 7, 2005, Defendants filed a reply to plaintiffs' opposition. Defendants claim the motion for summary judgment seeks dismissal of the complaint for many reasons, not just jurisdictional grounds. Defendants further state that the scheduling order was not electronically filed until November 30, 2004, whoich would have given the defendants until January 31, 2005 to file the pending motion for summary judgment. Defendants conclude with a request to the court that it exercise its discretion under Rule 6 of the Federal Rules of Civil Procedure for an enlargement of time to January 31, 2005. In the interest of judicial economy, the appeal of the magistrate's decision and the motion for summary

02/09/2005 02/09/2005 02/22/2005 02/22/2005 02/25/2005
02/25/2005 02/25/2005
02/28/2005

judgment will be placed upon U.S. District Judge Gary L. Sharpe's motion calendar for the same motion return date. IT IS ORDERED, that the motion return dates of March 3, 2005 and March 17, 2005 are hereby ADJOURNED. The appeal of the magistrate's decision and the motion for summary judgment have been schedule for a motion return on June 23, 2005 at 9:00 a.m. before U.S. District Judge Gary L. Sharpe. IT IS FURTHER ORDERED, that Plaintiff's 35 request to extend the response deadline for the appeal of the magistrate's decision until March 5, 2005 is GRANTED. The response deadline to the pending motion for summary judgment is extended until March 5, 2005. The reply deadline for the motion for summary judgment is extended until March 19, 2005. A reply to the response to the appeal of the magistrate's decision will not be allowed without prior written permission of this court. IT IS FURTHER ORDERED, that Plaintiffs are to submit within (7) seven days of this text order, a one (1) page letter indicating their reasons, why the granting of the defendants' request to amend their statement of material facts would be prejudicial. Issued by Judge Gary L. Sharpe on 2/8/2005. (jel, ) (Entered: 02/08/2005)
Minute Entry for proceedings held before Judge Randolph F. Treece : Elmer R. Keach, Esq.; William J. Greagan, Esq.; Discovery Hearing held on the record on 2/9/2005. (rzh, ) (Entered: 02/10/2005)
40 ORDER RE: Discovery issues. Signed by Judge Randolph F. Treece on 2/9/05. (tab) (Entered: 02/10/2005)
41 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Withdrawing Objection To Submission of Amended Statement of Material Fact. (Keach, Elmer) (Entered: 02/22/2005)
42 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Enlargement of Time for Taking of Nichole McDaniel's Deposition On Consent. (Keach, Elmer) (Entered: 02/22/2005)
Reset Deadlines as to 29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking pursuant to the February 8, 2005 text order; Response to Motion due by 3/5/2005; Reply is not permitted. Motion Hearing set for 6/23/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 02/25/2005)
Set/Reset Deadlines as to 33 MOTION for Summary Judgment pursuant to the February 8, 2005 text order. Response to Motion due by 3/5/2005 Reply to Response to Motion due by 3/19/2005. Motion Hearing set for 6/23/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 02/25/2005)
43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues Motion Hearing set for 4/8/2005 09:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 3/22/2005 Reply to Response to Motion due by 3/28/2005. (Attachments: # 1 Affirmation of Elmer Keach# 2 Exhibit A to Keach Affirmation −− 01.15.05 Letter from William Greagan to Court, with enclosures# 3 Exhibit B to Keach Affirmation −− 01.26.05 Letter from Elmer Keach to Court# 4 Exhibit C to Keach Affirmation −− 02.09.05 Discovery Order# 5 Exhibit D to Keach Affirmation −− MTI Technologies Decision# 6 Exhibit E to Keach Affirmation −− Williams Decision# 7 Exhibit F to Keach Affirmation −− US v. District Council Decision# 8 Memorandum of Law)(Keach, Elmer) (Entered: 02/25/2005)
TEXT ORDER ONLY − On January 20, 2005, Schenectady filed an appeal of a Magistrate Judge's decision with a return date of March 17, 2005. See Dkt. No. 29. On January 31, Schenectady also filed a motion for summary judgment with a return date of March 3, 2005. See Dkt. No. 33. To conserve judicial economy, the court issued a February 8, text order rescheduling the foregoing motions to a new return date of June 23, 2005 at 9:00 a.m. and setting a response deadline of March 5, 2005. The reply deadline for the Rule 56 motion was set for March 22, 2005 while no reply papers were allowed for the appeal of a magistrate judge's decision in accordance with Local Rule 7.1(b)(2). On February 25, McDaniel also filed an

03/01/2005 03/01/2005 03/02/2005 03/04/2005
03/05/2005
03/08/2005 03/08/2005

appeal of a Magistrate Judge's Decision setting a return date of April 8, 2005, a response deadline of March 22, 2005 and a reply deadline of March 28, 2005. See Dkt. No. 43. The selected return date of April 8, does not comply with this court's regularly scheduled motion return dates. Therefore, IT IS ORDERED that the return date of April 8 for McDaniel's appeal is adjourned and rescheduled for June 23, 2005 at 9:00 a.m. The response deadline for this appeal remains set for March 22, 2005. The reply deadline of March 28, 2005 is terminated as there is no reply permitted pursuant to Local Rule 7.1(b)(2). Parties are advised to schedule the return dates of their future motions in accordance with this court's motion calendar. Response to Motion due by 3/22/2005 Motion Hearing set for 6/23/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe.. Signed by Judge Gary L. Sharpe on 2/28/2005. (jel, ) (Entered: 02/28/2005)
44 AMENDED DOCUMENT by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. Amendment to 41 Letter Request, 33 MOTION for Summary Judgment, 36 Letter Request Amended Statement of Material Facts. (Attachments: # 1 Certificate of Service)(Greagan, William) (Entered: 03/01/2005)
45 Letter from William J. Greagan for The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting that the plaintiffs' objections dated February 25, 2005 to Magistrate Treece's February 10, 2005 Order be rejected as untimely.. (Greagan, William) (Entered: 03/01/2005)
46 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Responding to Claim by Defendants that Recent Appeal from Judge Treece's Discovery Ruling is Untimely. (Keach, Elmer) (Entered: 03/02/2005)
47 MEMORANDUM OF LAW re Set Motion and RRDeadlines/Hearings,, 29 Motion for Miscellaneous/Other Relief,,,,,, Order,,,,,,,,,,,, filed by Nichole Marie McDaniel. (Attachments: # 1 Affirmation of Jason J. Rozger# 2 Exhibit(s) A, Marriott v. Montgomery County Order# 3 Exhibit(s) B, Bruce v. Rensselaer County Order# 4 Exhibit(s) C, Transcript of Proceedings Before Magistrate Treece# 5 Exhibit(s) D, Hinds v. GE# 6 Exhibit(s) E, In Re Avon Securities Litig.# 7 Exhibit(s) F, Deposition Transcript of County of Schenectady)(Rozger, Jason) (Entered: 03/05/2005)
48 RESPONSE to Motion re 33 MOTION for Summary Judgment filed by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Statement of Material Fact# 2 Affirmation of Elmer Keach# 3 Exhibit A to Keach Affirmation −− Scheduling Order# 4 Exhibit B to Keach Affirmation −− Transcript of Robert Elwell# 5 Exhibit D to Keach Affirmation −− Conkin Decision)(Keach, Elmer) (Entered: 03/05/2005)
49 Letter from William J. Greagan for The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting Order staying further discovery pending resolution of the motions returnable on June 23, 2005. (Attachments: # 1 Exhibit(s) Letter from Maria Morris)(Greagan, William) (Entered: 03/08/2005)
50 TEXT ORDER: Defendants have asked this Court to stay all discovery pending resolution of the discovery appeal and other motions to be heard by the District Court on June 23, 2005. See re 49 Letter Request, filed by The County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi. Within the request, Defendants informed the Court that the Plaintiffs have not abided by any of the direction within this Court's Order, dated February 9, 2005. Particularly, and as an example, the Plaintiffs have not supplemented, within the allotted time frame, their interrogatory responses as directed by the Court on at least two occasions. The Court will not stay discovery but will permit the Defendants the right to file a Motion to Compel and to Seek Sanctions for failing to abide by a Court Order and to comply with discovery. The Motion may also seek a dismissal of Ms. McDaniel's complaint and/or preclusion of her testimony for her failure to appear twice at her deposition. Within the Notice of Motion, the Defendants shall disclose that this Court granted permission to file such a Motion to Compel and/or Sanctions. SO ORDERED. Signed by Judge Randolph F. Treece on 3/8/05. (Treece, Randolph) (Entered: 03/08/2005)

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04/25/2005

51 TRANSCRIPT of Discovery Proceedings held on January 7, 2005 before Judge Randolph F. Treece. (ban) (Entered: 03/14/2005)
52 TRANSCRIPT of Discovery Proceedings held on February 9, 2005 before Judge Randolph F. Treece. (ban) (Entered: 03/14/2005)
53 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Providing Exhibit C to Keach Affirmation in Opposition to Defendants' Motion for Partial Summary Judgment on service issues. (Attachments: # 1 Exhbit C to Keach Affirmation in Opposition to Motion for Summary Judgment −− Sch. Co. Strip Search Policies)(Keach, Elmer) (Entered: 03/15/2005)
54 SUMMONS Returned Executed by Nichole Marie McDaniel, Lessie Lee Davies. The County of Schenectady served on 7/19/2004, answer due 8/8/2004; Harry Buffardi served on 7/19/2004, answer due 8/8/2004; Gordon Pollard served on 7/19/2004, answer due 8/8/2004; Robert Elwell, Sr served on 7/19/2004, answer due 8/8/2004. (Keach, Elmer) (Entered: 03/16/2005)
55 REPLY to Response to Motion re 33 MOTION for Summary Judgment filed by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C# 4 Exhibit(s) Exhibit D# 5 Memorandum of Law # 6 Certificate of Service)(Greagan, William) (Entered: 03/22/2005)
56 AFFIDAVIT in Opposition re 43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues filed by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Memorandum of Law # 2 Certificate of Service)(Greagan, William) (Entered: 03/24/2005)
57 MOTION for Sanctions Pursuant to FRCP 37 Motion Hearing set for 5/6/2005 10:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 4/19/2005 Reply to Response to Motion due by 4/25/2005. by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Affidavit of William J. Greagan# 2 Exhibit(s) A# 3 Exhibit(s) B# 4 Exhibit(s) C# 5 Exhibit(s) D# 6 Certificate of Service)(Greagan, William) (Entered: 04/05/2005)
TEXT MINUTE ORDER − On April 5, 2005, Defendants' filed a Motion for Sanctions Pursuant to FRCP 37. See Dkt. No. 57. This motion was inadvertently made returnable before this court on May 6, 2005 at 10:00 a.m. instead of being made returnable before Magistrate Judge Treece. Therefore, the above pending motion is referred to Judge Treece. Issued by Judge Gary L. Sharpe on 4/6/2005. (jel, ) (Entered: 04/06/2005)
58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment pursuant to Rule 56 dismissing that part of plaintiffs' complaint seeking compensatory damages, together with such other and further relief as to the Court may seem just and proper. Motion Hearing set for 6/23/2005 10:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 6/6/2005 Reply to Response to Motion due by 6/13/2005. by The County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Affidavit # 2 Exhibit(s) A# 3 Exhibit(s) B# 4 Exhibit(s) C# 5 Exhibit(s) D# 6 Exhibit(s) E# 7 Exhibit(s) F−Part 1# 8 Exhibit(s) F−Part 2# 9 Exhibit(s) F−Part 3# 10 Exhibit(s) F−Part 4# 11 Exhibit(s) G−Part 1# 12 Exhibit(s) G−Part 2# 13 Memorandum of Law # 14 Statement of Material Facts # 15 Certificate of Service)(Greagan, William) (Entered: 04/22/2005)
59 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting That Defendants' Motion for Leave to Amend Complaint and for Partial Summary Judgment be Stricken from the Record for Failure to Comply with the Local Rules regarding Non−dispositive Motions. (Attachments: # 1 Supplement Unreported Decision −− United States v. Elliott)(Keach, Elmer) (Entered: 04/25/2005)

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60 ORDER/NOTICE Settlement Conference set for 5/17/2005 09:30 AM in Albany before Magistrate Judge Randolph F. Treece. Signed by Judge Randolph F. Treece on 4/26/05. (tab) (Entered: 04/27/2005)
TEXT ONLY ORDER − On April 22nd, Defendants filed a motion to amend answer/for partial summary judgment dismissing the part of plaintiffs' complaint seeking compensatory damages. See Dkt. No. 58. On April 25th, plaintiffs filed a letter requesting the court to strike defendants' motion for failure to comply with the local rules regarding non−dispositive motions. See Dkt. No. 59. Traditionally, it is common practice of the District Court and especially this court, to handle non−dispositive motions that are coupled with pending dispositive motions. Therefore, plaintiffs' response to the pending motion is to be filed on or before June 6th. Defendants' reply, if any, is to be filed on or before June 13th. Issued by Judge Gary L. Sharpe on 4/28/2005. (jel, ) (Entered: 04/28/2005)
TEXT ONLY NOTICE of Hearing regarding the 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment: Motion Hearing has been reset for 6/23/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 05/11/2005)
61 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Discovery Conference with Court. (Keach, Elmer) (Entered: 05/27/2005)
TEXT NOTICE AND ORDER: The Plaintiffs have asked this Court to convene a conference to discuss discovery matters. See Dkt. No. 61 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies. In order to set up a conference to discuss these matters, the Court directs the parties to advise the Court of their availability for a telephone conference during the week ending June 3, 2005, who will be participating, the telephone number by which they can be reached and, if there are more than four parties participating in the telephonic conference, who has the capability of initiating the conference call. Second, the Plaintiffs raised another issue concerning the pending Motion for Sanctions. This Court does not recall the Motion being held in abeyance for any reason nor can it locate any such notice or order by this Court to that effect. The Court notes however that the Motion was file on April 5, 2005 (Dkt. No. 57) and the Plaintiffs' time to repond was set at April 19, 2005. From the docket and the record, it appears that the Plaintiffs had not responded by April 19, 2005. It is also the Court's recollection that the request to hold a settlement conference did not occur prior to April 19, 2005, but after that date, as this Court issued a notice of a settlement conference on April 26, 2005. By the time the request for a settlement conference was being made, it appears that the Plaintiffs had already defaulted. It is the Court's recollection that only the issuance of an order on the Motion was being held in abeyance until the settlement conference, and not the opportunity for the Plaintiffs to respond. Therefore, it appears that the Plaintiffs are mistaken as to the status of this Motion. Therefore, another issue to be discussed during this conference will be whether the Plaintiffs have a right to serve and file a belated opposition to the Motion for Sanctions. The parties should be prepared to address this. Furthermore, the Court directs the Defendant to provide a written response to Plaintiffs' May 27, 2005 Letter. Upon receiving Defendant's correspondence and being apprised of the parties availability, this Court will set up a telephonic conference. Signed by Judge Randolph F. Treece on 5/27/05. (Treece, Randolph) (Entered: 05/27/2005)
62 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to Order,,,,,,,,,. (Greagan, William) (Entered: 06/01/2005)
63 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Confirming Telephone Conference with Court for Thursday, June 2, 2005 at 3:30 PM. (Keach, Elmer) (Entered: 06/01/2005)
TEXT ORDER A telephonic conference to discuss discovery matters is set for June 2, 2005 at 3:30 p.m. The conference call will be initated by Charles LaDuca. Signed by Judge Randolph F. Treece on 6/1/05. (sn) (Entered: 06/01/2005)

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64 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting One Day Enlargement of Time to File Response and Reply Papers Regarding Defendants' Motion for Leave to Amend and Partial Summary Judgment On Consent. (Keach, Elmer) (Entered: 06/02/2005)
TEXT ORDER: The Plaintiffs ask this Court to intervene to help resolve a discovery issue. Dkt. No. 61 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies. Pursuant to a Text Order, the parties filed letter−memoranda addressing these outstanding issues. See Dkt. Nos. 63 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies, and 62 RESPONSE TO LETTER BRIEF filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi. On June 2, 2005, the Court held a telephonic conference, on the record, and the parties were given further opportunity to be heard. With regard to the discovery issue, the parties have conferred and agreed upon a deposition schedule of the non−party witnesses, and therefore, this issue need not be addressed by the Court. As to the issue of whether the Plaintiff McDaniel may participate in the class in the event that she is dimissed from the action as Lead Plaintiff, the parties shall submit a brief letter−memorandum to address this point of law as follows: (1) Plaintiffs shall serve and file their letter−memorandum on or before June 9, 2005; and, (2) the Defendants shall serve and file their letter−memorandum on or before June 15, 2005. No other letters on this issue shall be authorized. SO ORDERED. Signed by Judge Randolph F. Treece on 6/2/05. (Treece, Randolph) (Entered: 06/02/2005)
65 LETTER REQUEST dated 6/2/2005 and ORDER regarding the 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment Response to Motion due by 6/7/2005 Reply to Response to Motion due by 6/14/2005. Signed by Judge Gary L. Sharpe on 6/3/2005. (jel, ) (Entered: 06/03/2005)
66 RESPONSE in Opposition re 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment filed by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Exhibit(s) Exhibit A to Keach Affirmation −−Plaintiffs' Summons and Complaint# 2 Exhibit(s) Exhibit B −− Unreported Decisions# 3 Statement of Material Facts # 4 Memorandum of Law)(Keach, Elmer) (Entered: 06/07/2005)
TEXT ORDER: Plaintiff's counsel has belatedly asked Chambers for a one−day extension of time to brief the matter previously discussed regarding McDaniel's participation in the class even if not lead. The Court will grant Plaintiff's request. Plaintiff shall electronically file and serve lt−memorandum no later than 5:00 p.m. on June 10, 2005. Defendant shall have an additional day to respond therewith, and accordingly shall electronically file and serve a response no later than 5:00 p.m. on June 16, 2005. So Ordered. Signed by Judge Randolph F. Treece on 06/10/05. (sn) (Entered: 06/10/2005)
67 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Providing Submission to Court Regarding Supplemental Authority Regarding Nichole McDaniel submitted to Judge Randolph F. Treece. (Keach, Elmer) (Entered: 06/10/2005)
68 REPLY to Response to Motion re 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Attachments: # 1 Exhibit(s) A to Reply Affidavit# 2 Exhibit(s) B to Reply Affidavit# 3 Memorandum of Law Reply Memorandum of Law# 4 Exhibit(s) A, Part 1 to Memorandum of Law# 5 Exhibit(s) A, Part 2 to Memorandum of Law# 6 Statement of Material Facts Defendants' Counter Statement of Material Facts# 7 Certificate of Service)(Greagan, William) (Entered: 06/14/2005)

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69 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 67 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies,, Order,,,,,, 57 Motion for Sanctions, filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,. (Attachments: # 1 Exhibit(s) Warrants and Complaints)(Greagan, William) (Entered: 06/14/2005)
TEXT ONLY NOTICE regarding the 43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues, 29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking r, 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment, 33 MOTION for Summary Judgment: Due to a conflict with the court's calendar, the motion return date of June 23, 2005 at 9:00 a.m. has been ADJOURNED. Motion Hearing has been reset for 8/4/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe. Oral argument will be required unless otherwise notified by the court.(jel, ) (Entered: 06/15/2005)
70 Letter from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Adjournment of Oral Argument on Pending Motions Until September 1, 2005 submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 06/21/2005)
71 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 70 Letter Request filed by Nichole Marie McDaniel,, Lessie Lee Davies,. (Greagan, William) (Entered: 06/22/2005)
72 LETTER REQUEST dated 6/21/2005 by Elmer Robert Keach, Esq., and ORDER Hearing regarding the 43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues, 29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking r, 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment, 33 MOTION for Summary Judgment: Motion Hearing has been reset for a special motion calendar of 9/29/2005 at 09:00 AM in Albany before Judge Gary L. Sharpe. Signed by Judge Gary L. Sharpe on 6/22/2005. (jel, ) (Entered: 06/22/2005)
Minute Entry for proceedings held before Judge Randolph F. Treece : Motion Hearing held on the Record on 6/2/2005 re 57 MOTION for Sanctions Pursuant to FRCP 37 filed by County of Schenectady, Gordon Pollard,Robert Elwell, Sr., Harry Buffardi. Appearances: Bob Keach, Esq., Charles DeLuca, Esq., and Bruce Menken, Esq., counsel for Plts.; William Greagan, Esq., counsel for Dfts. Written Order to follow. (Court Reporter None) (rlh) (Entered: 06/23/2005)
Reset Deadlines: Discovery due by 10/15/2005 pursuant to the 12 Uniform Pretrial Scheduling Order. This was incorrectly entered on the docket as 10/15/2004. (jel, ) Modified on 7/8/2005 (jel, ). (Entered: 07/08/2005)
73 NOTICE of Change of Address and Firm name by Charles J. LaDuca, Esq. Effective Date 7/1/05 New Address: 507 C. Street, N.E. Washington DC 20002 (tab) (Entered: 07/25/2005)
74 REPORT AND RECOMMENDATIONS re 57 MOTION for Sanctions Pursuant to FRCP 37 filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi, Objections to RRdue by 8/15/2005. Signed by Judge Randolph F. Treece on 7/21/05. (tab) (Entered: 08/01/2005)
75 RESPONSE to Motion re 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants'

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motion for partial summary judgment to call the Court's attention to the recent decision by Judge Homer in Kelsey v. County of Schoharie, filed by Nichole Marie McDaniel. (Attachments: # 1 Exhibit(s) Kelsey v. County of Schoharie)(Rozger, Jason) (Entered: 09/26/2005)
Upon request of plaintiff's counsel, TEXT NOTICE of Hearing on Motion 43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues, 74 REPORT AND RECOMMENDATIONS re 57 MOTION for Sanctions Pursuant to FRCP 37 filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking r, 57 MOTION for Sanctions Pursuant to FRCP 37, 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment, 33 MOTION for Summary Judgment: Motion Hearing has been resset for 9/29/2005 at 10:30 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 09/28/2005)
76 Letter Motion from William J. Greagan for County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting That the Court not ender an Order with respect to the PLRA decision until all parties have had an opportunity to brief the appealability issue submitted to Judge Gary L. Sharpe. (Greagan, William) (Entered: 09/29/2005)
77 Minute Entry for proceedings held before Judge Gary L. Sharpe : CRD: John Law; Motion Hearing held on 9/29/2005 re 58 MOTION for Partial Summary Judgment An Order Pursuant to Rules 15 of the Federal Rules of Civil Procedure Allowing Defendants to Amend their Answer, and after be granted leave to amend, granting defendants' motion for partial summary judgment filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi, 33 MOTION for Summary Judgment filed by Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 43 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Nichole Marie McDaniel, Lessie Lee Davies re 40 Order On Work Product Issues filed by Nichole Marie McDaniel,, Lessie Lee Davies,, 29 MOTION an Order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of the Northern District of New York reversing so much of the Magistrate's Order dated January 10, 2005, as compels production of booking r filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 74 REPORT AND RECOMMENDATIONS re 57 MOTION for Sanctions Pursuant to FRCP 37 filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi,, 57 MOTION for Sanctions Pursuant to FRCP 37 filed by County of Schenectady,, Gordon Pollard,, Robert Elwell, Sr., Harry Buffardi; Appearances Made: Bob Keach and Jason Rozger, Esqs., for the plaintiff and William J. Greagan, Esq., for the defendants. Court states the motions and issues pending before the court. Court address sua sponte issue on the civility of litigation with the counsel and advises of the warning. Court turns to the unobjected Report−Recommendation. Court adopts the Report−Recommendation in its entirety. Court turns to the defendants' motion for summary judgment. Advises to adopt Judge Homer's decision. Atty. Greagan states that Judge Homer's decision is unconstitutional. Provides example to court. Court states point is not without merit, understands argument on unconstitutionality but disagrees with defense counsel. Atty. Greagan states would like court to certify to the court of appeals. Court directs to submit papers that gives court authority. Defendants submissions due on or before October 20th. Plaintiff's submissions due on or before November 10th. Court discusses issue of Monell claim. Court denies the motion as premature with leave to renew. Atty. Greagan states plaintiff has offered no evidence. Court states issues are in outstanding discovery. Court turns to the two (2) magistrate appeals. Attorney Keach states about service of 2 defendants and the court gives (30) thirty days. Atty. Greagan states will notify plaintiff if can accept service. Court turns back to civility issue. Court turns to magistrate standard review. Court turns to McDaniel appeal and states order is not clearly erroneous. Court AFFIRMS the order of the Magistrate Judge. Court refers matter back to Magistrate Judge since

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time components have expired. Court turns to 2nd appeal. Court discusses collateral issues. Attorney states position. Court DENIES appeal. Court states Order is not clearly erroneous. Court AFFIRMS the order of the Magistrate Judge and refers the matter back to the magistrate judge. Court asks if any outstanding issues. Counsel advises all issues have been addressed. Court states transcript constitutes the decision of the court. No written order forthcoming. (Court Reporter Theresa Casal) (jel, ) Time:10:50−11;57 a.m. (Entered: 09/29/2005)
TEXT ONLY MINUTE ORDER, The Court's decision and order on defendants' summary judgment motion is STAYED pending the parties submissions regarding interlocutory appeal. Signed by Judge Gary L. Sharpe on 9/29/2005. (jel, ) (Entered: 09/29/2005)
78 COURT EXHIBIT 2 Standard of Review − Summary Judgment. (jel, ) (Entered: 09/29/2005)
79 Letter Motion from Elmer Keach for Lessie Lee Davies requesting Discovery Conference with Court submitted to Judge Randolph F. Treece. (Keach, Elmer) (Entered: 10/17/2005)
80 LETTER BRIEF requesting certification of the question to the Second Circuit on whether section 1997(e) of the PLRA bars that part of plaintiff's complaint seeking compensatory damages by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Greagan, William) (Entered: 10/18/2005)
TEXT NOTICE: Order granting 79 Letter Request. A telephone conference is scheduled for October 25, 2005 at 10 a.m. The Court will initiate the conference call. Signed by Judge Randolph F. Treece on 10/20/05. (sn) (Entered: 10/20/2005)
81 TEXT ORDER: The Plaintiffs asked this Court for a telephone conference to resolve several outstanding matters. Dkt. No. 79 Letter Motion from Elmer Keach for Lessie Lee Davies requesting Discovery Conference. On October 25, 2005, a telephonic conference was held to address pending matters. Based upon the discussion had during the telephonic conference, it is hereby Ordered as follows: (1) The Plaintiffs may initate their motion for class certification on or before March 31, 2006; (2)The Plaintiffs may make a motion to amend their complaint and/or join parties. The motion to amend or join schedule is as follows: (a) motion to amend and/or join is due on or before December 15, 2005; (b) Defendants' opposition to the motion to amend and/or join is due on or before January 13, 2006; and (c) Plaintiffs' reply to the Defendants' opposition is due on or before January 18, 2006. This motion is on submit; (3)Defendants' counsel shall accept service on behalf of Defendant Elwell; (4) the Clerk of the Court shall issue a new summons so that Defendant Buffardi may be served. The Court extends the time to serve Defendant Buffardi to November 10, 2005; (5) Defendants shall serve a copy of the Log Sheets on or before November 4, 2005, and a copy of the booking sheets on or before November 18, 2005; (6) Plaintiffs shall serve a reply to the Defendants' Interrogatories seeking the name of witnesses on or before November 18, 2005. SO ORDERED. Signed by Judge Randolph F. Treece on 10/25/05. (Treece, Randolph) (Entered: 10/25/2005)
Minute Entry for proceedings held before Judge Randolph F. Treece : Interim Pretrial Telephone Conference held on 10/25/2005 with appearances by Bob Keach, Jason Rozger, and William Greagan. 1 hr. 15 min. (sn) (Entered: 10/25/2005)
Summons Reissued as to Harry Buffardi. (tab, ) (Entered: 10/26/2005)
82 TRANSCRIPT of Proceedings held on September 29, 2005 before Judge Gary L. Sharpe (Motion), Court Reporter: Theresa Casal − maintained in Clerk's Office and not available for electronic viewing. (tab) (Entered: 11/09/2005)
83 LETTER BRIEF in opposition to Defendants' Application for permission to seek leave for an interlocutory appeal by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Exhibit(s) A, Marriott oral decision on PLRA)(Rozger, Jason) (Entered: 11/10/2005)

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84 ANSWER to Complaint by Harry Buffardi, Robert Elwell, Sr. (Attachments: # 1 Certificate of Service)(Greagan, William) (Entered: 11/18/2005)
85 ORDER STAYING CASE Status Report due by 12/20/2005. Signed by Judge Gary L. Sharpe on 11/22/2005. (jel, ) (Entered: 11/22/2005)
TEXT ONLY ORDER, that the parties request that the court continue the previously ordered stay of this action is GRANTED and parties request for a conference is TAKEN UNDER ADVISEMENT. Issued by Judge Gary L. Sharpe on 1/6/2006. (jel, ) (Entered: 01/06/2006)
TEXT ONLY AMENDED ORDER, that the text only order issued on January 6, 2006, GRANTING the parties request that the court continue the previously ordered stay of this action is amended to reflect that the stay is continued for an additional period of (30) thirty days . Signed by Judge Gary L. Sharpe on 1/9/2006. (jel, ) (Entered: 01/09/2006)
86 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 03/06/2006)
87 SEALED DOCUMENTS (filed 3/30/06) − maintained in Clerk's Office and not available for electronic viewing (tab) (Entered: 04/03/2006)
TEXT ONLY Minute Entry for proceedings held before Judge Gary L. Sharpe : In Chambers Conference held on 4/10/2006; Appearances Made: Bruce Menken, Elmer Keach and Jason Rozger, Esqs., for the plaintiff and Bill Greagan, Esq., for the defendants; Court discusses stay with parties; Court continues stay for 1 additional week; Court advises will refer matter back to magistrate judge for scheduling. (jel, ) (Entered: 04/10/2006)
88 NOTICE by the Clerk of the Court to Attorney Charles LaDuca: You have (15) fifteen days from the date of this notice to complete all of the necessary steps to register and activate your electronic account. Failure to comply with the Court's requirements within (15) fifteen days, will result in the issuance of an Order to Show Cause, directing you to appear before the assigned Magistrate Judge of the case, to explain why you have failed to comply with the Court's General Order #22 and why such failure should not result in an order removing you from the bar of the Northern District of New York. (sal, ) (Entered: 04/12/2006)
89 NOTICE by the Clerk of the Court to Attorney Jonathan Cuneo: You have (15) fifteen days from the date of this notice to complete all of the necessary steps to register and activate your electronic account. Failure to comply with the Court's requirements within (15) fifteen days, will result in the issuance of an Order to Show Cause, directing you to appear before the assigned Magistrate Judge of the case, to explain why you have failed to comply with the Court's General Order #22 and why such failure should not result in an order removing you from the bar of the Northern District of New York. (sal, ) (Entered: 04/12/2006)
90 REQUEST &ORDER Continuing STAY of discovery and pending motions in CASE to 4/26/06. Status Report due by 4/26/06. Signed by Judge Gary L. Sharpe on 4/18/06; parties advised that no further faxes will be accepted for filing. (wjg, ) (Entered: 04/18/2006)
91 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) Modified on 4/27/2006 (jel, ). (Entered: 04/27/2006)
92 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 05/11/2006)
93 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 06/28/2006)
94 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 06/28/2006)
Text Order− The court has reviewed the submitted letters. At this point, it is unclear whether the case has reached a stalemate such that this matter should be restored to the calendar and/or whether it should be forwarded to Magistrate Judge Treece for further proceedings and/or whether this court should continue the stay

07/06/2006 07/14/2006 08/18/2006
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until it resolves the request for certification. Accordingly, the parties have fourteen days from the receipt of this text order to inform the court on the above pending issues. Issued by Judge Gary L. Sharpe on 06/29/2006. (cdw, ) (Entered: 06/29/2006)
95 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 07/06/2006)
96 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 07/14/2006)
97 MOTION Preliminary Approval of Class Action Settlement Motion Hearing set for 9/21/2006 09:00 AM in Albany before Judge Gary L. Sharpe. Response to Motion due by 9/5/2006 Reply to Response to Motion due by 9/11/2006. by Lessie Lee Davies. (Attachments: # 1 Affirmation Rozger Affirmation# 2 Exhibit(s) Exhibit 1# 3 Exhibit(s) Exhibit 2# 4 Exhibit(s) Exhibit 3# 5 Exhibit(s) Exhibit 4# 6 Exhibit(s) Exhibit 5# 7 Exhibit(s) Exhibit 6# 8 Exhibit(s) Exhibit 7# 9 Exhibit(s) Exhibit 8# 10 Exhibit(s) Exhibit 9# 11 Exhibit(s) Exhibit 10# 12 Exhibit(s) Exhibit 11# 13 Exhibit(s) Exhibit 12# 14 Proposed Order/Judgment Proposed Form for Preliminary Approval Order# 15 Memorandum of Law Memorandum of Law in Support of Plantiffs' Motion for Preliminary Approval for Class Action Settlement)(Rozger, Jason) (Entered: 08/18/2006)
98 Letter Motion from Defendants for County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr requesting Extension of Time for Defendants to File Responding Papers to Plaintiffs' Motion to Approve Settlement to September 8 but keeping September 21 return date submitted to Judge Hon. Gary L. Sharpe. (Greagan, William) (Entered: 08/30/2006)
99 ORDER granting 98 Letter Request and resetting motion return/response/reply ddls . Signed by Judge Gary L. Sharpe on 8/31/06. (wjg, ) (Entered: 08/31/2006)
Set/Reset Deadlines (per 8/31/06 Request/Order) as to 97 MOTION Preliminary Approval of Class Action Settlement. Response to Motion due by 9/8/2006, Reply to Response to Motion due by 9/14/2006. Motion Hearing reset for 10/5/2006 09:00 AM in Albany before Judge Gary L. Sharpe. (wjg, ) (Entered: 08/31/2006)
TEXT ONLY NOTICE of Hearing: In Chambers Telephonic Conference set for 9/12/2006 03:00 PM in Albany before Judge Gary L. Sharpe. Parties to initiate call. (wjg, ) (Entered: 09/11/2006)
TEXT ONLY ORDER Striking document #100 and removing from record; further Ordered that the conference scheduled for 9/12 is hereby cancelled. (wjg, ) (Entered: 09/12/2006)
100 RESPONSE to Motion re 97 MOTION Preliminary Approval of Class Action Settlement filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Greagan, William) (Entered: 09/12/2006)
TEXT ORDER− The hearing set for 10/5/06 is hereby adjourned. The hearing is now set for 10/12/06 at 9am. Issued by Judge Gary L. Sharpe on 09/14/06. (cdw) (Entered: 09/14/2006)
Set/Reset Deadlines as to 97 MOTION Preliminary Approval of Class Action Settlement. Motion Hearing set for 10/12/2006 09:00 AM in Albany before Judge Gary L. Sharpe.(cdw) (Entered: 09/14/2006)
101 Minute Entry for proceedings held before Judge Gary L. Sharpe : CRD: John Law; Motion Hearing held on 10/12/2006 re 97 MOTION Preliminary Approval of Class Action Settlement filed by Lessie Lee Davies; Appearances Made: Bob Keach and Bruce Menken, Esqs., for the plaintiff and William J. Greagan, Esq., for the defendants; Court discusses pending motion and any objection to proposal of preliminary order; Court gives summary of matter and discusses preliminary settlement. Court states elements of Rule 23(a) and (b) have been satisfied. Court GRANTS each request for preliminary approval. Court directs the plaintiff to resubmit the proposed order in Wordperfect format to NYND_GLS_ECF_NOTICES@nynd.uscourts.gov; Atty. Grogan inquires when notice time starts. Court inquires date of entry of order and fairness hearing would

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be scheduled in about 180 days. Atty. Greagan further inquires regarding the notice date; Atty. Keach inquires of the court to have 45 days instead of 30 days; advises notice date begins the day print in newspaper and notices in the mail; Court states when submitting proposed order alter 30 days to 45 days the the fairness hearing date will be 150 days from the 45 day notice date. (Court Reporter Theresa Casal) Time: 9:00−9:17 a.m. (jel, ) (Entered: 10/12/2006)
102 ORDER PRELIMINARY APPROVING SETTLEMENT. Signed by Judge Gary L. Sharpe on 10/25/2006. (jel, ) (Entered: 10/25/2006)
103 Letter Motion from Elmer Keach for Nichole Marie McDaniel, Lessie Lee Davies requesting Conference with the Court to Discuss Notice Issues submitted to Judge Gary L. Sharpe. (Attachments: # 1 Exhibit(s) Portion of Settlement Agreement Addressing Notice)(Keach, Elmer) (Entered: 11/13/2006)
104 Letter Motion from Bruce E. Menken Esq. for Nichole Marie McDaniel, Lessie Lee Davies requesting Order releasing class members' social service and probation records submitted to Judge Gary L. Sharpe. (Rozger, Jason) (Entered: 11/14/2006)
TEXT ONLY ORDER − Plaintiff's counsel filed a letter request seeking a conference with the court to address notice issues. (See Dkt. No. 103). Defendants are directed to file a letter response by 12:00 p.m. on November 15, 2006. Issued by Judge Gary L. Sharpe on 11/14/2006. (jel, ) (Entered: 11/14/2006)
105 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to Order,, 103 Letter Request/Motion, filed by Nichole Marie McDaniel,, Lessie Lee Davies,, 104 Letter Request/Motion filed by Nichole Marie McDaniel,, Lessie Lee Davies,. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B)(Greagan, William) (Entered: 11/15/2006)
TEXT ONLY NOTICE of Hearing: In Court Conference has been set for 11/17/2006 at 11:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 11/15/2006)
AMENDED NOTICE of Hearing:Due to attorney conflict, the In Court Conference has been reset for 11/22/2006 at 11:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 11/15/2006)
106 Minute Entry for proceedings held before Judge Gary L. Sharpe : CRD: John LawPretrial Conference held on 11/22/2006 ; Appearances Made: Bob Keach, Esq., for the plaintiff and Bill Greagan, Esq., for the defendants. Court turns to the nature of the problems. Atty. Keach discusses issues regarding electronic format; social services and probation databases and requests additional amount of time to get out notices; Atty. Greagan discusses the agreement and booking sheets; discusses the social services and probation databases; booking sheets; entitled to enforce agreeement; Court inquires of database; Atty. Greagan discusses database issues with the court; Atty. Keach discusses his position on the databases; Court declines to order the defendant to produce records; Court declines to address any issue with order to those agencies to search database for address of the class; Court GRANTS to add 14 days to each date listed in the order. Court discusses with counsel regarding the returns of mail and the procedure to follow with proposed order. Parties discuss initial payment. (Court Reporter Bonnie Buckley) Time: 11:00−11:35 a.m. (jel, ) (Entered: 11/22/2006)
107 AMENDED ORDER PRELIMINARILY APPROVING SETTLEMENT. Signed by Judge Gary L. Sharpe on 11/29/2006. (jel, ) (Entered: 11/29/2006)
Set/Reset Hearings: Final Settlement Approval Hearing has been reset for 5/15/2007 at 09:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 11/29/2006)
108 Stipulation, Proposed Order and Letter Motion from Elmer Keach for Lessie Lee Davies requesting Enlargement of Time to Affect Class Notice, Joint Request submitted to Judge Gary L. Sharpe. (Attachments: # 1 Stipulation and Proposed Order)(Keach, Elmer) (Entered: 12/06/2006)
109 STIPULATION AND ORDER extending deadlines.Final Settlement Approval Hearing set for 6/5/2007 at 09:00 AM in Albany before Judge Gary L. Sharpe.

01/05/2007 02/06/2007 03/23/2007 04/04/2007 04/06/2007 04/09/2007
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Signed by Judge Gary L. Sharpe on 12/8/2006. (jel, ) (Entered: 12/08/2006)
110 STATUS REPORT regarding class notice by Lessie Lee Davies. (Keach, Elmer) (Entered: 01/05/2007)
111 Letter from Plummer Bradley dated January 24, 2007 regarding the proposed settlement. (jel, ) (Entered: 02/06/2007)
112 NOTICE by Nichole Marie McDaniel, Lessie Lee Davies of Change of Firm Name and Address for Alexander E. Barnett and Change of Firm Name for Gary E. Mason (Barnett, Alexander) (Entered: 03/23/2007)
113 Letter Motion from Bruce E. Menken for Nichole Marie McDaniel, Lessie Lee Davies requesting Order directing Schenectady County Department of Social Services to provide last known addresses submitted to Judge Sharpe. (Attachments: # 1 Settlement Agreement# 2 Proposed Order/Judgment)(Menken, Bruce) (Entered: 04/04/2007)
114 Letter dated April 6, 2007 from Kevin A. Burke, Esq., objecting to plaintiff's 113 letter motion. (jel, ) (Entered: 04/06/2007)
Text Only Minute Order − On April 4, 2007, plaintiff filed a request that the Court enter an Order directing the SCDSS to provide the last known addresses for all persons for whom the previously produced booking record addresses proved to be inaccurate. (Dkt. No. 113). On April 6, 2007, SCDSS filed an objection, pursuant to 18 NYCCR 357.1, to the application of plaintiffs counsel. (Dkt. No. 114). IT IS ORDERED, that plaintiffs counsel is to file a response to this objection on or before April 11, 2007. Issued by Judge Gary L. Sharpe on 4/9/2007. (jel, ) (Entered: 04/09/2007)
115 Reply Letter Motion from Bruce Menken for Nichole Marie McDaniel, Lessie Lee Davies requesting In support of Plaintiff's 4−4−07 letter motion submitted to Judge Sharpe. (Attachments: # 1 Exhibit(s) 1 − Order Signed 6/22/04# 2 Exhibit(s) 2 − Settlment agreement 7−31−06# 3 Exhibit(s) 3 − Proposed order)(Menken, Bruce) (Entered: 04/11/2007)
116 ORDER, that: 1. The Schenectady County Department of Social Services shall provide the last known addresses in its possession for all persons for whom the parties agree the booking records previously produced are inaccurate; 2. Plaintiffs will provide defendants a list of all those persons for whom they believe the previously produced booking records are inaccurate within seven (7) days of this Order and, if not rejected by defendants within seven (7) days thereafter, will be considered accurate and immediately forwarded by defense counsel to the Schenectady County Department of Social Services; 3. Consistent with the parties' July 31, 2006 settlement agreement, plaintiff's Settlement Administrator shall pay the reasonable hourly rate for all Schenectady County staff required to produce the agreed upon last known addresses, the disclosure of the last known addresses shall be limited to Class Counsel and the Settlement Administrator and used solely for effecting notice to those class members of the preliminary settlement of this case, and the record of these last known addresses will be returned to defendants or destroyed, with the consent of the defendants, within sixty (60) days after the Court grants final approval or when any appeals are exhausted, whichever date is later. Signed by Judge Gary L. Sharpe on 4/12/2007. (jel ) (Entered: 04/12/2007)
117 STIPULATION and Proposed Order Enlarging Claims Period by One Month and Adjourning Final Approval Hearing Until August 14, 2007 by Lessie Lee Davies submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 04/25/2007)
118 STIPULATION AND ORDER; Final Fairness Hearing has been reset for 8/14/2007 at 09:00 AM in Albany before Judge Gary L. Sharpe. Signed by Judge Gary L. Sharpe on 4/27/2007. (jel, ) (Entered: 04/27/2007)
119 NOTICE from Class Member Keith Harris Objecting to the settlement. (ban) (Entered: 05/17/2007)
120 Letter Motion from Elmer Keach for Lessie Lee Davies requesting Leave of Court to File Motion For Final Approval on July 23, 2007 and Court Approval of Stipulated Briefing Schedule submitted to Judge Gary L. Sharpe. (Keach, Elmer)

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08/14/2007 08/17/2007

(Entered: 07/12/2007)
121 Letter dated July 9, 2007 from Randy J. Marshall regarding claim and settlement. (jel, ) (Entered: 07/16/2007)
122 LETTER/ORDER granting 120 Letter Request for proposed briefing schedule. Signed by Judge Gary L. Sharpe on 7/18/2007. (jel, ) (Entered: 07/19/2007)
123 MOTION to Approve Consent Judgment and Class Action Settlement. Motion Hearing set for 8/14/2007 09:00 AM in Albany before Judge Gary L. Sharpe. by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Memorandum of Law # 2 Affirmation of E. Robert Keach# 3 Exhibit(s) A to Keach affirmation# 4 Exhibit(s) B to Keach affirmation# 5 Exhibit(s) C to Keach affirmation# 6 Exhibit(s) D to Keach affirmation# 7 Exhibit(s) E to Keach affirmation# 8 Exhibit(s) F to Keach affirmation# 9 Exhibit(s) G to Keach affirmation# 10 Exhibit(s) H to Keach affirmation# 11 Exhibit(s) I to Keach affirmation# 12 Exhibit(s) J to Keach affirmation# 13 Exhibit(s) K to Keach affirmation# 14 Affirmation of Jason Rozger# 15 Exhibit(s) A to Rozger affirmation (attorney time records)# 16 Affirmation of Bruce Menken# 17 Exhibit(s) A to Menken affirmation (attorney time records)) (Rozger, Jason) (Entered: 07/24/2007)
124 LETTER REQUEST datede July 23, 2007 by Elmer Robert Keach, III, Esq., and ORDER GRANTING request to file the final approval papers on July 24, 2007. Signed by Judge Gary L. Sharpe on 7/24/2007. (jel, ) (Entered: 07/24/2007)
125 Letter dated July 18, 2007 from Elmer Robert Keach, III, Esq., to Randy J. Marshall. (jel, ) (Entered: 07/26/2007)
126 LETTER BRIEF Letter from Elmer Keach to Roy Hall, Class Member by Lessie Lee Davies. (Keach, Elmer) (Entered: 07/26/2007)
127 AFFIDAVIT in Support re 123 MOTION to Approve Consent Judgment and Class Action Settlement. Supplemental Submission on Attorneys' Fees filed by Lessie Lee Davies. (Attachments: # 1 Exhibit(s) Keach Fee Affidavit# 2 Exhibit(s) Mason Fee Affidavit)(Keach, Elmer) (Entered: 07/31/2007)
128 AFFIDAVIT in Support re 123 MOTION to Approve Consent Judgment and Class Action Settlement. Supplemental Affirmation Addressing Notice and Administration filed by Lessie Lee Davies. (Attachments: # 1 Exhibit(s) A −− Rust Consulting Affidavit# 2 Exhibit(s) B −− Long Form Notice# 3 Exhibit(s) C −− Claim Form# 4 Exhibit(s) D −− Short Form Notice# 5 Exhibit(s) E −− Short Form Notice (June 2007)# 6 Exhibit(s) F −− Website Affidavit# 7 Exhibit(s) G −− Handbill# 8 Exhibit(s) H −− Cuneo Gilbert time records)(Keach, Elmer) (Entered: 08/02/2007)
129 RESPONSE to Motion re 123 MOTION to Approve Consent Judgment and Class Action Settlement. filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr. (Greagan, William) (Entered: 08/03/2007)
130 Letter Motion from Elmer Keach for Lessie Lee Davies requesting Leave to File Final Report Regarding Composition of Settlement Class on August 29, 2007 at 3:00 PM submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 08/13/2007)
Text Only Minute Entry − Clerk calls case to make record that the Final Fairness Hearing scheduled for August 14, 2007 at 9:00 a.m. has been adjourned. Parties and counsel were advised on August 13, 2007. There was no appearances made by any individual in regards to this matter. Notice will be sent to counsel to advise of new date and time for hearing. (Court Reporter Theresa Casal) Time: 9:00−9:05 a.m. (jel, ) (Entered: 08/14/2007)
TEXT ONLY NOTICE of Hearing:Final Fairness Hearing has been reset for 9/5/2007 at 02:00 PM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 08/14/2007)
131 LETTER dated August 13, 2007 by Elmer Robert Keach, III, Esq., and Order that the 130 Letter requesting Leave to File Final Report Regarding Composition of Settlement Class on August 29, 2007 at 3:00 PM is GRANTED. Signed by Judge Gary L. Sharpe on 8/17/2007. (jel, ) (Entered: 08/17/2007)

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132 AFFIDAVIT in Support re 123 MOTION to Approve Consent Judgment and Class Action Settlement. Supplemental Affidavit Regarding Class Membership and Prospective Pro Rata Payments, with Exhibits B through F to be filed Under Seal filed by Lessie Lee Davies. (Keach, Elmer) (Entered: 08/29/2007)
133 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (jel, ) (Entered: 08/29/2007)
134 NOTICE/Claim by Linwood Gholson. (ban) (Entered: 09/04/2007)
135 STATUS REPORT regarding pending settlement, with proposed order allowing for late claims by Lessie Lee Davies. (Attachments: # 1 Proposed Order/Judgment)(Keach, Elmer) (Entered: 09/05/2007)
136 Minute Entry for proceedings held before Judge Gary L. Sharpe : CRD: John Law; Final Fairness Hearing held on September 5, 2007; Appearances Made: Elmer Keach and Bruce Menken, Esqs., for the plaintiffs and William Greagan, Esq., for the defendants; Court turns to the proposed order on the late claims. Court will sign proposed order and directs plaintiff to submit the proposed order to the ecf email box. Court states has reviewed the papers submitted by the parties. Court turns to the two collateral issues. Court turns to the incentive awards and the attorney amounts. Court turns to incentive awards. Court turns to the attorneys fees. Court discusses the calculation of attorneys fees. Court discusses the Lodestar method. Court discusses the multiplier. Court discusses the percentage of recovery. Court discusses the Johnson factors. Court states percentage rate is unreasonable for this case. Court will allow customary rates. Court does not feel multiplier for this case is reasonable. Court discusses the Goldberger factors. Court declines percentage method and multiplier. Court declines to adjust the hourly rates. Court awards attorneys fees on hours at customary rates. Court awards attorneys fees in the amount of $344,756.00, $9,001.50 in unreimbursable costs and $107,000.00 in administerial fees. Atty. Keach indicates that he believes the unreimbursable costs are $10,001.50. Court states intends to enter the actual amount incurred by counsel. Court turns to the settlement. Class action is fair and reasonable. Court states one objection filed. Court turns to the history of the case. Court states settlement is procedurally fair. Atty. Menken states disappointed on attorney's fees and satisfied on the final approval. Discusses the Arbor Hill case. Preserved right on appeal of this issue in settlement agreement. Atty. Keach discusses the Goldberger factors with the court. Atty. Greagan states in favor of settlement; discusses the public use policy. Discusses the billing records of counsel. Court discusses the Arbor Hill matter again. Court states multiplier is unwarranted and detrimental to the class; overall settlement remains the same. Court states parties will effectuate their rights under settlement agreement. Advises plaintiffs' counsel to submit proposed order. Court discusses allow of expenditures for disbursing of settlement but not sure on the process of the appeal. Atty. Greagan states have retained administrator. Pay in escrow account in the amount of settlement. Atty. Menken discusses further application for costs. Atty. Greagan states purpose that the whole thing to be paid into the fund. Atty. Keach states court has reduced attorneys fees greatly; the entire amount goes into escrow account. Atty. Greagan states amount of charge. (Court Reporter Bonnie Buckley) Time: 3:00−4:00 p.m. (jel, ) (Entered: 09/07/2007)
137 TRANSCRIPT REQUEST of Final Approval Hearing by Lessie Lee Davies for proceedings held on September 5, 2007 before Judge Gary L. Sharpe.. (Keach, Elmer) (Entered: 09/07/2007)
138 Letter dated September 6, 2007 from James A. Smith requesing status of the litigation. (jel, ) (Entered: 09/14/2007)
139 STATUS REPORT regarding Final Approval Order by Nichole Marie McDaniel, Lessie Lee Davies. (Keach, Elmer) (Entered: 09/14/2007)
140 RECORD of Proceedings: Final Fairness Hearing held on 9/5/07 before Judge Sharpe, Court Reporter: Bonnie Buckley. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Redact with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to

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Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Notice of Intent to Redact due by 9/26/2007,Transcript due by 12/18/2007. (bjb, ) (Entered: 09/19/2007)
141 STATUS REPORT Regarding Final Approval Hearing, with Proposed Order by Lessie Lee Davies. (Attachments: # 1 Proposed Order/Judgment # 2 Transcript Final Approval Hearing)(Keach, Elmer) (Entered: 10/02/2007)
142 Response to Atty Keach's 10/2/07 letter re: proposed final approval order / Letter Motion from William J. Greagan, Esq. for County of Schenectady, Harry Buffardi, Gordon Pollard submitted to Judge Honorable Gary L. Sharpe. (Greagan, William) (Entered: 10/03/2007)
143 RESPONSE TO LETTER BRIEF filed by Lessie Lee Davies as to 141 Status Report filed by Lessie Lee Davies, 142 Letter Request/Motion, filed by Harry Buffardi, County of Schenectady, Gordon Pollard. (Rozger, Jason) (Entered: 10/05/2007)
144 Letter from John Peana dated October 10, 2007 requesting the status of the pending case. (jel, ) (Entered: 10/25/2007)
145 Letter from Marqus Buchanan, dated October 19, 2007, requesting status if he has been included as part of the class. (jel, ) (Entered: 10/25/2007)
146 STATUS REPORT regarding correspondence from Class Members and Final Approval Order by Lessie Lee Davies. (Keach, Elmer) (Entered: 10/29/2007)
147 DECISION and ORDER, The Motion for Final Approval of the Proposed Settlement is GRANTED in part and DENIED in part as follows: 1. The Settlement Class Representative, Lessie Davies, is entitled to and is hereby awarded a payment of $12,000.00, in recognition of the efforts she undertook in connection with this lawsuit. William Davis, an individual who had planned to intervene in this action to assist class counsel, is hereby awarded an incentive award of $1,500.00 in addition to his pro rata share of the settlement fund. Former Class Representative Nichole McDaniel will receive no incentive award. 2. All class members who have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after administrative expenses, attorneys' fees and expenses, incentive awards and the amounts to be placed in escrow under Paragraph xiii of this Order are deducted from the fund. 3. Class Counsel's application for attorneys' fees is granted in the amount of $343,744.50. Class Counsel's request for reinbursement of pre−settlement litigation expenses is granted in the amount of $10,053.31. The sum of $296,202.19 (the disputed amount of attorneys' fees) will be held in escrow by the Settlement Administrator. This amount will be deposited into an insured interest bearing escrow account entitled the "SCJ Settlement Attorneys' Fees Escrow Account," which will be maintained by the Settlement Administrator, Rust Consulting. No attorney in this proceeding will have signature this account. One of the conditions of this account will be that no funds are allowed to be withdrawn from the account absent an order of the court. The Settlement Administrator will maintain the bank records for this account, and provide them to any party or the court on two business days' notice. 4. Administration expenses and costs are granted in the amount of $107,233.40. In the event that costs of future administration are larger than this estimate, the court will entertain an application to have those sums deducted from the amounts held in escrow pending the completion of any appeals. 5. This action and all claims against the Settling defendants are dismissed with prejudice, but the court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. 6. All Class members who have not timely filed an opt−out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendants. Any Class member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum. 7. The court will not authorize counsel fees to prosecute an appeal or otherwise provide any future compensation beyond the time expended throught the preparation of the proposed order currently before the court. Class counsel shall submit, within SEVEN DAYS of this order, the amount of attorneys'

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01/16/2008 01/16/2008

fees for the time expended for the final fairness hearing through the preparation of the proposed order currently before the court. See Dkt. No. 141. Signed by Judge Gary L. Sharpe on 11/5/2007. (jel, ) (Entered: 11/05/2007)
148 AFFIDAVIT re 147 Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,, Order on Motion to Approve Consent Judgment,,,,,,,,,,,,,, Order on Letter Request,,,,,,,,,,,,, Affirmation of Jason J. Rozger on counsel fees by Nichole Marie McDaniel, Lessie Lee Davies. (Attachments: # 1 Exhibit(s) A, Rozger time records)(Rozger, Jason) (Entered: 11/12/2007)
149 AFFIDAVIT re 147 Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,, Order on Motion to Approve Consent Judgment,,,,,,,,,,,,,, Order on Letter Request,,,,,,,,,,,,, Affirmation and time records of Bruce Menken by Nichole Marie McDaniel, Lessie Lee Davies. (Rozger, Jason) (Entered: 11/12/2007)
150 AFFIDAVIT in Support re 123 MOTION to Approve Consent Judgment and Class Action Settlement. Supplemental Affirmation Regarding Attorneys' Fees filed by Lessie Lee Davies. (Attachments: # 1 Exhibit(s) Keach Time Records# 2 Exhibit(s) Decker Time Records)(Keach, Elmer) (Entered: 11/15/2007)
TEXT ONLY ORDER − Pending is a supplemental moton for an award of additional attorneys' fees for the time period of July 30, 2007 to October 2, 2007. Attorney Menken requests $6,024.75, Attorney Rozger requests $775.00 and Attorne Keach requests $18,518.00. These amounts are approved and the motion is granted. The clerk is hereby ordered to enter judgment accordingly. Signed by Judge Gary L. Sharpe on 11/20/2007. (jel, ) (Entered: 11/20/2007)
151 JUDGMENT: That judgment is entered in this case and the case is closed in accordance with the terms set forth in the Decision and Order and the Text Only Order, signed and issued by U.S. District Judge Gary L. Sharpe on November 5, 2007 and November 20, 2007 respectively. (jel, ) (Entered: 11/21/2007)
152 NOTICE OF APPEAL as to 151 Judgment, 147 Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,, Order on Motion to Approve Consent Judgment,,,,,,,,,,,,,, Order on Letter Request,,,,,,,,,,,,, by Lessie Lee Davies. Filing fee $ 455, receipt number 907719. (Keach, Elmer) (Entered: 12/04/2007)
153 ELECTRONIC NOTICE sent to US Court of Appeals re 152 Notice of Appeal. [appeals packet sent to Elmer R. Reach, III, Esq.]. (ban) (Entered: 12/14/2007)
154 Letter dated December 11, 2007 from Gary L. Priddle to the Court. (jel, ) (Entered: 12/18/2007)
155 STATUS REPORT regarding letter to Court by Gary Priddle by Lessie Lee Davies. (Keach, Elmer) (Entered: 12/18/2007)
USCA Case Number is 07−5580−cv for 152 Notice of Appeal, filed by Lessie Lee Davies. (cbm, ) (Entered: 01/02/2008)
156 TRANSCRIPT of Proceedings (Unredacted): Final Fairness hearing held on 9/5/07 before Judge Gary L. Sharpe, Court Reporter: Bonnie Buckley. Tape Number: none (bjb, ) (Entered: 01/02/2008)
157 Letter Motion from Elmer Robert Keach, III for Lessie Lee Davies requesting unsealing of settlement documents for inclusion in Joint Appendix submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 01/04/2008)
158 LETTER dated January 3, 2008 by Elmer Robert Keach, III, Esq., and ORDER that the plaintiff's 157 requesting unsealing of settlement documents for inclusion in Joint Appendix is denied. The 2nd circuit has full access to the District Court's sealed documents. Signed by Judge Gary L. Sharpe on 1/10/2008. (jel, ) (Entered: 01/10/2008)
159 Letter dated January 14,2008 from Jay Carter to the court. (jel, ) (Entered: 01/16/2008)
160 LETTER BRIEF responding to letter from Class Member Jay Carter by Lessie Lee Davies. (Keach, Elmer) (Entered: 01/16/2008)

01/23/2008
01/30/2008 02/01/2008 02/06/2008 02/11/2008 02/12/2008 02/19/2008 02/27/2008

161 Letter Motion from Elmer Keach for Lessie Lee Davies requesting Addressing Filing of Sealed Affidavit by William Greagan seeking that Elmer Keach be disbarred from practice before the Northern District of New York submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 01/23/2008)
162 USCA Scheduling Order as to 152 Notice of Appeal, filed by Lessie Lee Davies. USCA Case No. 07−5580−cv. Appealed to: Second Circuit, USCA.Appeal Record due by 2/20/2008. (dpk) (Entered: 02/01/2008)
163 ELECTRONIC CERTIFICATION to US Court of Appeals of Record on Appeal re 152 Notice of Appeal. (dpk) (Entered: 02/01/2008)
164 ELECTRONIC CERTIFICATION to US Court of Appeals of Record on Appeal re 152 Notice of Appeal (tab) (Entered: 02/06/2008)
165 Letter Motion from Elmer Robert Keach III for Lessie Lee Davies requesting conference with Court submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 02/11/2008)
166 LETTER dated February 11, 2008 by Elmer Rober Keach, III, Esq., and ORDER that the request for a conference is denied. Signed by Judge Gary L. Sharpe on 2/12/2008. (jel, ) (Entered: 02/12/2008)
TEXT ONLY NOTICE of Hearing:An In−Court Conference has been set for 2/27/2008 at 09:00 AM in Albany before Judge Gary L. Sharpe. (jel, ) (Entered: 02/19/2008)
167 Minute Entry for proceedings held before Judge Gary L. Sharpe: CRD: John Law; In−Court Conference held on 2/27/2008; Appearances Made: Elmer Robert Keach, Esq., and William Greagan, Esq.; Court discusses variety of matters; disputes between parties; sealing of documents; telephone communications with the court; clear out the facts; allow parties to digest and respond accordingly; Court discusses application from Attorney Gregan. Court discusses authority of the court. Court discusses local rule 83.4 with counsel. Court turns to disciplinary allegations and indicates the application needs to be filed with the Chief Judge Mordue for his review. Court turns to the secondary matter. Court turns to the imposition of sanctions. Court discusses the authority to act. Court states that currently on appeal and digest of jurisdiction; what gives this court authority to act; Court states not prepared to answer this morning. Court states tangential issues. Court states inclination always retains power to inherent authority over orders of this case. Court turns to confusion. Court turns back to pre electronic filing regarding settlement negotiations. Court turns to confidential communications with the court. Atty. Greagan inquires before getting into the text. Court states not to get into text of those documents. Court inquires of Atty. Keach regarding the settlement documents. Atty. Keach states allegation made violated the courts order; Atty. Keach stated was not sure of the documents that were sealed. There were no orders. Atty. Keach discusses the sealed document issue. Discusses videotape issue with Judge Treece. Advises the court will return the tape. Discusses protective orders with the court. Court discusses issue with Magistrate Judge Peebles. Atty. Keach states does not believe so then indicates an issues 6−7 years ago. Court turns to protective order on communications with one another. Belief not underlying order issued to seal but understood they were sealed. Court turns to the issue of pre electronic settlement conference. Atty. Keach states with Judge Homer a settlement conference order was issued. Not sure if done with Judge Treece. Do not believe that the correspondence should have been sealed. Does not believe it should be filed under seal. Have not give correspondence to anyone. Tried to mark one as exhibit in another action; Atty. Keach discusses issues discussed with Judge Homer; did not mark one of the letters as a deposition exhibit. Indicates the more lengthy letter. The first one in the pile. Court turns to the settlement issues. Court discusses the first document number 86. Letter from Attorney Keach to the court to the state of settlement. Court states the date of the letter. Court discusses language of the statement. Atty. Keach states he does not know that was two years ago. Atty. Greagan states the letter was dated March 27, 2006. Court turns to the courts perspective. Atty. Keach discusses the letter stated after defendants objection he did not mark the document as an exhibit. Have not given the letter. Court turns to discussion to see issues that the court sees. Court to discuss the underlying facts. Atty. Keach states feel compelled regarding accusations; discusses the due process;

02/28/2008

at least follow the rules; did not give letter to anybody; some things that are going at the 2nd circuit that this court is not aware of; feel compelled to bring that to 2nd circuits attention; these documents should not be sealed. Atty. Keach indicates can request the documents be unsealed. Court inquires of the request of unsealing the documents. Court turns to reason of unsealing. Atty. Keach states that is not accurate. Court turns to the 2nd circuits access to the sealed documents. Court turns to Atty. Greagan regarding protective order on exchange. Atty. Greagan states there was not indicating protective order by Judge Treece as to issues regarding the jail and booking slips. Court turns to sealed documents filed by the defendants (dkt. no. 87,91,92,93,94,95 and 96).Court turns to the documents from Attorney Greagan. Court discusses the dates of these letters. Court discusses class action settlement that this court. Court discusses titled Confidential for Settlement Purposes only. Carbon copy letters to be disclosed to the other counsel. Court turns to curious of view that a copy placed in his position. Atty. Greagan states product of an agreement between the parties. Court discusses ethics; discusses electronic filing; court states access simpler today. Atty. Greagan discusses settlement agreements and negotiations. Atty. Greagan discusses believes the court has authority and jurisdiction over issues not on appeal. Application to unseal had to thought it was an order as well. Discusses the telephone conferences and issue of public interest; Atty. Keach discusses the issues that arose before the court; discusses the delay of the settlement; Court discusses pending motion. Atty. Keach states does not recall the motion; discusses Atty. Greagans demands; motion for preliminary approval was made; discusses opposition; discusses conference with the court; Court states delays of the settlement. Court turns to the document of the defendant to take the disciplinary document. Court inquires of the defendant. Atty. Greagan discusses the filing of the application; inquires of the mechanism; inquires of a motion; discusses inherent power to control conduct of counsel appearing before the court; discusses the rules of civility; states the court have jurisdiction. Court inquires to the defendant regarding a motion for sanctions. Atty. Greagan states yes and to be filed under seal. Atty. Keach states vehemently opposes to be filed under seal; wrote him a Rule 11 letter. Court discusses application to unseal. Court states believes letter was in disingenuous. Court turns to January 23, 2008. Court turns to docket entry then the letter filed document number 161. Court states to permit the defendant to supplement for sanctions, authority for sanctions, legal dissertation on the oral presentation; duties arose; disciplinary roles; settlement negotiations; impact; no law cited to the court to the extend as application to take disciplinary it is denied and that can be taken up with the chief judge; an application for sanctions; court grants to file the document under seal; grant Atty. Keach the right to respond; Court give right to refile that document; review document where it may not remain sealed; permit to file under seal but may not stay under seal. Atty. Greagan discusses intentions was to act on ability act on ability to live anywhere. Indicated not where going to pursue this; Court states are you looking for time to think or walk away. Atty. Greagan states to look at bigger picture. Court turns to application; can resubmit motion for sanctions; in regards to discipline should be submitted to Chief Judge Mordue; whether wish to pursue. Atty. Greagan states not ready to say whether or not. Court wants a date. Atty. Greagan wants 30 days to file his motion which would be March 28. Atty. Keach wants 30 days which will be April 27. Court states no reply will be granted. Court states sua sponte issue order to show cause for letter to unseal documents and accusation to the court of ex parte communication. Atty. Keach states requests 3 weeks to respond. Court states granted which will be March 19, 2008. Atty. Keach states position in regards to the allegation of the ex parte communication regarding the application in regards to guidance. States filed a letter to clarify. Court reads the entry of the January 23, 2008 entry. Atty. Keach states he does not recall the conversation that went that way. Atty. Keach discusses issue with Judge DiBianco. Discusses action of issues with Judge Scullin. Indicates that the court should recuse itself since this issue involves a court staff member. Court indicates can include that in writing. Court adjourns. (Court Reporter Diane Martens) Time: 9:00−10:35 a.m. (jel, ) (Entered: 02/27/2008)
168 TRANSCRIPT REQUEST with AO 440 Form by Lessie Lee Davies for proceedings held on 2.27.2008 before Judge Gary L. Sharpe.. (Keach, Elmer) (Entered: 02/28/2008)

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169 Letter Motion from Elmer Keach requesting Enlargement of Time to File Response to Order To Show Cause and File Motion For Recusal submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 03/04/2008)
170 LETTER dated March 4, 2008 by Elmer Robert Keach, III, Esq., and ORDER GRANTING 169 Letter requesting an enlargement of time to file his response and recusal motion until Friday, April 4, 2008. Signed by Judge Gary L. Sharpe on 3/7/2008. (jel, ) (Entered: 03/07/2008)
171 MOTION for Sanctions Response to Motion due by 4/14/2008 Reply to Response to Motion due by 4/21/2008. Motion Hearing set for 5/1/2008 10:00 AM in Albany before Judge Gary L. Sharpe by County of Schenectady, Harry Buffardi, Gordon Pollard. (Attachments: # 1 Letter to Clerk/copy opc serving motion for sanctions against plaintiff's counsel − supporting papers submitted under seal per transcript of minutes of conference held on 2/27/08 wherein Court granted leave to file supporting papers under seal) (Greagan, William) (Entered: 03/27/2008)
172 CERTIFICATE OF SERVICE by County of Schenectady, Harry Buffardi, Gordon Pollard re 171 MOTION for Sanctions (Greagan, William) (Entered: 03/27/2008)
173 RECORD of Proceedings: Status Conference held on 2/27/08 before Judge Gary L. Sharpe, Court Reporter: Diane S. Martens. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Redact with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Notice of Intent to Redact due by 4/3/2008 Transcript due by 6/25/2008. (dm2, ) (Entered: 03/27/2008)
174 Letter Motion from Elmer Keach for Elmer Robert Keach, III requesting Unsealing of all Proceedings Regarding Application by William Greagan for Sanctions and Adjournment of Return Date submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 03/27/2008)
175 CERTIFICATE OF SERVICE by County of Schenectady, Harry Buffardi, Gordon Pollard re 171 MOTION for Sanctions (Greagan, William) (Entered: 03/28/2008)
176 Defendant's MOTION for Sanctions against Plaintiff's counsel Elmer Robert Keach, III filed by William Greagan. (Additional attachments added on 4/2/2009: # 1 Affidavit of William Greagan, # 2 Exhibits A − D, # 3 Exhibits E − G, # 4 Cover Letter) (dpk). Modified on 4/2/2009 (dpk). (Entered: 03/31/2008)
177 MEMORANDUM OF LAW in Support of 176 Motion for Sanctions by William Greagan. (dpk) Modified on 4/2/2009 (dpk) (Entered: 03/31/2008)
178 Letter Motion from Elmer Keach for Elmer Robert Keach, III requesting Renewing Request for Adjournment of Return Date on Pending Motion for Sanctions submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 04/02/2008)
179 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 178 Letter Request/Motion filed by Elmer Robert Keach, III. (Greagan, William) (Entered: 04/02/2008)
180 CERTIFICATE OF SERVICE by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr re 179 RESPONSE TO LETTER BRIEF (Greagan, William) (Entered: 04/02/2008)
Text Only Order − The court is in receipt of the letters filed by plaintiffs counsel on March 27th and April 2nd seeking an extension of the motion filing deadlines. (See Dkt. Nos. 174 and 178 respectively). On April 2nd, defense counsel filed a letter in response to these requests. (See Dkt. No. 179). The court has reviewed these letters and IT IS ORDERED, that the request to extend the motion return to June 19, 2008 at 9:00 a.m. is GRANTED. The following dates are imposed: Response papers and cross−motion to be served upon defense counsel on or before May 1, 2008. Response papers to the Courts Order to Show Cause are to be filed

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on or before May 1, 2008. Response papers and cross−motion to be filed electronically on or before May 22, 2008. Defense counsels response to the cross−motion only, are to be filed on or before June 5, 2008. No reply papers by either counsel will be permitted. The request to unseal the documents is DENIED. The court will revisit this issue at the June 19, 2008 motion return. Issued by Judge Gary L. Sharpe on 4/3/2008q. (jel, ) (Entered: 04/03/2008)
181 NOTICE of Appearance by John R. Supple on behalf of Elmer Robert Keach, III (Supple, John) (Entered: 04/04/2008)
182 MOTION for Recusal and Response to Order to Show Cause Response to Motion due by 4/28/2008 Motion Hearing set for 5/15/2008 09:00 AM in Albany before Judge Gary L. Sharpe by Elmer Robert Keach, III. (Attachments: # 1 Affidavit, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Memorandum of Law, # 6 Affirmation Certificate of Good Faith) Motions referred to Randolph F. Treece. (Supple, John) (Entered: 04/04/2008)
TEXT ONLY NOTICE of Hearing on Motion 182 MOTION for Recusal and Response to Order to Show Cause : The Motion Hearing has been reset for 6/19/2008 at 09:00 AM in Albany before Judge Gary L. Sharpe to be held with the pending motion for sanctions. (jel, ) (Entered: 04/07/2008)
183 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 179 RESPONSE TO LETTER BRIEF filed by Harry Buffardi, County of Schenectady, Robert Elwell, Sr., Gordon Pollard, Order Setting Hearing on Motion,,,,, Terminate Motions,,,, further letter relating to the plaintiff's request for an extension of time. (Attachments: # 1 April 9, 2008 e−mail from E.R. Keach)(Greagan, William) (Entered: 04/10/2008)
184 CERTIFICATE OF SERVICE by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr re 183 RESPONSE TO LETTER BRIEF, (Greagan, William) (Entered: 04/10/2008)
185 Letter Motion from Elmer Keach for Elmer Robert Keach, III requesting Responding to Letter from Defendants' Counsel on Scheduling submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 04/13/2008)
186 Letter Motion from Elmer Keach for Elmer Robert Keach, III requesting Leave to File Response to Motion for Sanctions Under Seal and to Mail Response to Clerk's Office on May 2, 2008 submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 05/01/2008)
187 186 LETTER dated May 1, 2008 by Elmer Robert Keach, III, Esq., and ORDER granting 186 Letter requesting Leave to File Response to Motion for Sanctions Under Seal and to Mail Response to Clerk's Office on May 2, 2008. Signed by Judge Gary L. Sharpe on 5/5/2008. (jel, ) (Entered: 05/05/2008)
188 RESPONSE IN OPPOSITION by Elmer R. Keach. (dpk) (Additional attachment(s) added on 4/2/2009: # 1 Exhibit A, # 2 Exhibit B − J, # 3 Memorandum of Law, # 4 Cover Letter) (dpk, ). Modified on 4/2/2009 (dpk). (Entered: 05/05/2008)
189 Letter Motion from J. Richard Supple for Elmer Robert Keach, III requesting opportunity to inspect document the Court referenced during Feb. 27th conference submitted to Judge Hon. Gary L. Sharpe. (Supple, John) (Entered: 05/29/2008)
190 Letter dated May 29, 2008 by Richard Supple, Esq., and Order that the request for an opportunity to inspect a document the Court reference during the February 27th conference is denied. The motion return scheduled for June 19, 2008 will be on SUBMIT only. No personal appearances are needed. Signed by Judge Gary L. Sharpe on 6/4/2008. (jel, ) Modified on 6/19/2008 (jel, ). (Entered: 06/04/2008)
191 Letter Motion from Richard Supple, Esq. to Hon. Gary L. Sharpe for Elmer Robert Keach, III requesting Conference with Court submitted to Judge Gary L. Sharpe. (Supple, John) (Entered: 01/21/2009)
192 MEMORANDUM−DECISION AND ORDER. ORDERED that Keach's motion for recusal (Dkt. no. 182) is DENIED; and it is further ORDERED that Greagan's

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03/31/2009 08/24/2009 03/04/2010 03/04/2010 03/04/2010 03/26/2010 04/12/2010 06/25/2010

motion for sanctions (Dkt. Nos. 176−77) is DENIED; and it is further ORDERED that the court DECLINES to impose judicial sanctions pursuant to its order to show cause. Signed by Judge Gary L. Sharpe on 02/27/2009. (dpk) (Entered: 02/27/2009)
193 NOTICE OF APPEAL by Elmer Robert Keach, III. Filing fee $ 455, receipt number 02060000000001244488. (Attachments: # 1 Certificate of Service)(Supple, John) (Entered: 03/16/2009)
194 Letter Motion from Elmer Keach for Elmer Robert Keach, III requesting Filing and Unsealing of Documents Relevant to Sanctions Order of February 27, 2009 submitted to Judge Gary L. Sharpe. (Attachments: # 1 Exhibit −− Online Version of New York Law Journal Article)(Keach, Elmer) (Entered: 03/16/2009)
195 RESPONSE TO LETTER BRIEF filed by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr as to 194 Letter Request/Motion, filed by Elmer Robert Keach, III. (Greagan, William) (Entered: 03/18/2009)
196 CERTIFICATE OF SERVICE by County of Schenectady, Harry Buffardi, Gordon Pollard, Robert Elwell, Sr re 195 RESPONSE TO LETTER BRIEF (Greagan, William) (Entered: 03/18/2009)
197 ELECTRONIC NOTICE sent to US Court of Appeals re 193 Notice of Appeal. (ban) (Entered: 03/31/2009)
198 ORDER granting in part and denying in part 194 Letter Request. The court is in receipt of Atty. Keach's letter seeking various relief. See Dkt. No. 194 . Atty. Greagan opposes this request. See Dkt. No. 195 . IT IS HEREBY ORDERED, that Atty. Keach's request to unseal docket numbers 86, 87, 91, 92, 93, 94, 95 and 96 is GRANTED, however the District Court is no longer in possession of these documents for they have been transferred to the 2nd Circuit Court of Appeals. Once those documents have been returned from the 2nd Circuit Court of Appeals the Clerk is directed to upload those documents to the docket. IT IS FURTHER ORDERED that Atty. Keach's request to file Atty. Greagan's January 21, 2008 application is GRANTED. IT IS FURTHER ORDERED that Atty. Keach's request to unseal the court's chamber entry is DENIED. IT IS FURTHER ORDERED that Atty. Keach's request to unseal Attorney Greagan's motion to sanction (Dkt. Nos. 176 , 177 and 188 ) is GRANTED. Signed by Judge Gary L. Sharpe on 3/31/2009. (dpk) (Entered: 04/02/2009)
199 AFFIDAVIT by William Greagan made to the Court on January 21, 2008 and filed by 198 ORDER of District Judge Gary L. Sharpe on 3/31/2009. (Attachments: # 1 Exhibit(s) A − D to Affidavit, # 2 Cover Letter)(dpk) (Entered: 04/02/2009)
200 AMENDED ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of Appeals re 193 Notice of Appeal (dpk) (Entered: 08/24/2009)
USCA Case Number is 07−5580−cv for 152 Appeal filed by Lessie Lee Davies. (cbm ) (Entered: 03/04/2010)
USCA Case Number is 09−1296−cv for 193 Appeal filed by Elmer Robert Keach, III. (cbm ) (Entered: 03/04/2010)
201 MANDATE of USCA, issued 2/19/10, DISMISSING 193 Appeal filed by Elmer Robert Keach, III, in accordance w/attached slip opinion. (Attachments: # 1 slip opinion)(cbm ) (Entered: 03/04/2010)
202 MANDATE of USCA, issued 3/12/10, as to 152 Appeal, filed by Lessie Lee Davies ; AFFIRMING judgment of the district court in accordance w/attached slip opinion. (Attachments: # 1 slip opinion)(cbm ) (Entered: 03/26/2010)
203 BILL OF COSTS re 193 appeal, issued 3/24/10, taxed in USCA in favor of appellees County of Schenectady et al. in amt of $200. (cbm ) (Entered: 04/12/2010)
204 Letter dated June 22, 2010 from Jay Carter to the court. (jel, ) (Entered: 06/25/2010)

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205 STATUS REPORT Letter response to Class Member Jay Carter by Lessie Lee Davies, Nichole Marie McDaniel. (Keach, Elmer) (Entered: 06/25/2010)
206 MOTION for Disbursement of Funds and Supplemental Distribution to Class Members Motion Hearing set for 8/19/2010 09:00 AM in Albany before Judge Gary L. Sharpe Response to Motion due by 8/2/2010 Reply to Response to Motion due by 8/9/2010. filed by Lessie Lee Davies. (Attachments: # 1 Affirmation of Elmer Keach in Support of Motion, # 2 Exhibit(s) A −− Escrow Account Bank Statement, # 3 Exhibit(s) B −− Settlement Administrator Invoices, # 4 Proposed Order/Judgment) (Keach, Elmer) (Entered: 07/14/2010)
207 CERTIFICATE OF SERVICE by Lessie Lee Davies re 206 MOTION for Disbursement of Funds and Supplemental Distribution to Class Members (Keach, Elmer) (Entered: 07/14/2010)
TEXT ONLY NOTICE of Hearing on Motion 206 MOTION for Disbursement of Funds and Supplemental Distribution to Class Members : Motion Hearing set for 8/19/2010 at 09:00 AM in Albany before Judge Gary L. Sharpe will be on SUBMIT only. No personal appearances are needed. (jel, ) (Entered: 08/16/2010)
Text Order Only: This court hereby orders Elmer Robert Keach, III to further explain the administrative cost "accumulated...during the course of the Class Counsel's appeal" and the "additional $20,000 in fees to complete the settlement" requested. Mr. Keach is to provide an affidavit to this court within Fourteen days of this Order. Issued by Judge Gary L. Sharpe on 8/25/2010. (jel, ) (Entered: 08/25/2010)
208 Letter from Jay Carter to Attorney Elmer Robert Keach, III. (mab) (Entered: 08/27/2010)
209 RESPONSE in Support re 206 MOTION for Disbursement of Funds and Supplemental Distribution to Class Members filed by Lessie Lee Davies, Nichole Marie McDaniel. (Attachments: # 1 Exhibit(s) A −− Eisert Affidavit)(Keach, Elmer) (Entered: 09/08/2010)
TEXT ONLY ORDER: Pending is a Motion for Approval of Supplemental Payments to Class Members under the Settlement Agreement. In particular, the motion seeks approval of final payment of administrative expenses and to distribute the remaining funds. The motion is granted in part and denied in part. The court DENIES the payment of $35,000 to the Settlement Administrator, Rust Consulting, for services rendered in administering the settlement fund during the pendency of the appeal. However, the court GRANTS the request to distribute the remaining funds on a pro rata basis to all valid claimants pursuant to the settlement agreement. Issued by Judge Gary L. Sharpe on 10/1/2010. (jel, ) (Entered: 10/01/2010)
210 Letter from Juan McCray. (dpk) (Entered: 03/24/2011)
211 Letter Motion from Elmer Keach for Lessie Lee Davies, Nichole Marie McDaniel requesting Addressing Unclaimed Settlement Funds from Settlement submitted to Judge Gary L. Sharpe. (Keach, Elmer) (Entered: 04/18/2011)
212 Letter dated 4/27/2011 from claimant/class action member Juan McCray requesting the status of the settlement payments. With attached letter dated 10/7/2010 from Attorney Elmer Keach's Office. (jmb) (Entered: 04/28/2011)
213 ORDER granting 211 Letter requesting Addressing Unclaimed Settlement Funds from Settlement. Signed by Judge Gary L. Sharpe on 5/5/2011. (jel, ) (Entered: 05/05/2011)

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

NICHOLE MARIE McDANIEL and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,

04 Civ. 0757 (GLS)(RFT)

-against-

Plaintiffs,

COUNTY OF SCHENECTADY, et. al.,

NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Defendants. -----------------------------------------------------------X

PLEASE TAKE NOTICE, that upon the affirmation of Jason Rozger, Esq., and the

attachments thereto, the Plaintiff’s Memorandum of Law, the parties’ Settlement Agreement, and

all prior papers and proceedings in this action, the Plaintiffs will move this Court at a Motion Term

to be held at the James T. Foley United States Courthouse, 445 Broadway, Albany, NY, on

September 21, 2006 at 9:00 AM, or as soon thereafter as counsel may be heard, for an order:

1. Provisionally certifying this case as a class action, pursuant to Fed. R. Civ. Proc. 23;

2. Approving the settlement of this action as a class action;

3. Approving the class notice plan, deadlines, and other relief as set forth in the accompanying

Proposed Preliminary Approval Order;

4. Setting a date for the Final Approval Hearing; and

5. For such additional relief as the Court finds just and proper.

Responsive papers, if any, should be fled within seventeen days prior to the return date.

Dated : August 18, 2006

Respectfully submitted by: BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP

____/s/_______

Jason J. Rozger NDNY Bar Roll Number 105874

Bruce E. Menken NDNY Bar Roll Number 104942

80 Pine Street, 32nd Floor

New York, NY 10005

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail: jrozger@bmbblaw.com

Elmer Robert Keach, III, Esquire

USDC, NDNY Bar Roll Number 601537

One Steuben Place

Albany, NY 12207

Telephone:

518.434.1718

Telecopier:

518.436.0659

Charles LaDuca, Esquire USDC, NDNY Bar Roll Number 511604 CUNEO WALDMAN & GILBERT, LLP 317 Massachusetts Avenue, N.E. Suite 300 Washington, DC 20002 Telephone: 202.789.3960

Gary E. Mason, Esquire

(Member of the New York Bar, Motion for

Permanent Admission to be Filed)

THE MASON LAW FIRM, PLLC

1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

ATTORNEYS FOR PLAINTIFFS AND CERTIFIED CLASS

2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------){
NICHOLE MARIE McDANIEL and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,
Plaintiffs,

-against-
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff's Department,

Index No. 04-CV-0757(GLS)(RFT)

Defendants. -----------------------------------------------------------){

SETTLEMENT AGREEMENT Plaintiffs, by and through their counsel, and Defendants, by and through their counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for settlement ofthe claims herein described against Defendants. WHEREAS, Plaintiff Lessie Lee Davies filed the above-captioned class action lawsuit against Defendants the County of Schenectady, Harry Buffardi, Gordon Pollard, and Robert Elwell alleging that Defendants had violated Plaintiff's constitutional rights under color of state law by illegally strip searching them and others similarly situated upon entry into the Schenectady County Jail.

1

WHEREAS, Plaintiffs further allege that, in violation of law and pursuant to the policy of Schenectady County, all persons such as Plaintiff and the members of the class she purports to represent, who enter the Schenectady County Jail charged with misdemeanors, violations of probation or parole, other violations or minor crimes, or held on civil matters, are strip searched even absent any particularized suspicion that they possess weapons or other contraband.
WHEREAS, Defendants have vigorously denied and continue to deny Plaintiffs claims, and Defendants deny any wrongdoing or liability of any kind to Plaintiff or to any members of the Settlement Class.
WHEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation of the facts and law relating to the matters in this litigation.
WHEREAS, the Defendants have concluded that settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiff and all Settlement Class Members relating to alleged conduct involved in this Litigation.
WHEREAS, Plaintiff and Class Counsel recognize the costs and risks of prosecution of this litigation, and believe that it is in their interest, and the interest of all Settlement Class Members, to resolve this litigation, and any and all claims against Defendants, as well as all employees of the County of Schenectady who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
WHEREAS, substantial, adversarial settlement negotiations have taken place between the Parties, including a mediation conducted by the Honorable Randolph F. Treece, United States Magistrate Judge ofthe United States District Court for the Northern District ofNew York, and,
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as a result, this Settlement Agreement has been reached, subject to the Court approval process set
forth herein. WHEREAS, the Plaintiff and Class Counsel believes that this Settlement Agreement
offers significant benefits to Settlement Class Members and is fair, reasonable, adequate and in the best interest of Settlement Class Members.
WHEREAS, this Settlement Agreement IS made and entered into by and among Defendants and Plaintiff Lessie Lee Davies, individually and on behalf of a national class of similarly situated persons defined as:
All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
I. DEFINITIONS As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa. A Claim Form. "Claim Form" shall mean a form in substantially the same form as that attached hereto as Exhibit A B. Claims Period. "Claims Period" shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date until the date 120
3

days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
C. Class Counsel. "Class Counsel" shall mean: The Law Offices of Elmer Robert Keach, Ill, Esquire; Beranbaum, Menken Ben-Asher & Bierman, LLP; Cuneo, Gilbert & LaDuca and The Mason Law Firm, PC.
D. Class Notice. "Class Notice" shall mean the Court-approved form of notice in substantially the same form as Exhibit B.
E. Class Settlement. "Class Settlement" shall mean the terms provided in this Settlement Agreement.
F. Court. "Court" shall mean the United States District Court for the Northern District of New York, The Honorable Gary L. Sharpe presiding, or his duly appointed or designated successor.
G. Defendants. "Defendants" shall mean the County of Schenectady, Harry Buffardi, Gordon Pollard, and Robert Elwell, and shall include all employees of the County of Schenectady who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
H. Defendants' Counsel. "Defendants' Counsel" shall mean Goldberg Segalla LLP. I. Distribution Amount. "Distribution Amount" shall mean the amount available from the Settlement Fund after payment of the costs of notice and administration of the Settlement, attorneys' fees and expenses and incentive awards to class representatives. J. Effective Date. "Effective Date" shall mean thirty days from the date on which the settlement has been finally approved by the Court.
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K. Final Approval Hearing. "Final Approval Hearing" shall mean the hearing at which the Court will consider and finally decide whether to enter the Final Judgment.
L. Final Judgment. "Final Judgment" shall mean that Court order that finally certifies the Settlement Class, approves this Settlement Agreement, approves payment of attorneys' fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement, in substantially the same form as Exhibit C.
M. Litigation. "Litigation" shall mean the above-captioned lawsuit pending in the United States District Court for the Northern District ofNew York as No. 04-CV-0757.
N. Mediator. The "Mediator" shall mean The Honorable Randolph F. Treece, United States Magistrate Judge of the United States District Court for the Northern District of New York.
0. Notice Program. "Notice Program" shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
P. Notice Date. "Notice Date" shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the terms herein.
Q. Objection Date. "Objection Date" shall mean the date agreed upon by the Parties
or otherwise ordered by the Court, by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument.
R. Opt-Out Deadline. "Opt-Out Deadline" shall mean the date agreed upon by the Plaintiffs and Defendants or otherwise ordered by the Court, by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the
5

Settlement must complete the acts necessary to properly effect such election to opt out. S. Opt-Out List. "Opt-Out List" shall mean a written list prepared by the Settlement
Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
T. Opt-Out Notice. "Opt-Out Notice" or "Opt-Out" shall mean a Request for Exclusion.
U. Parties. "Parties" shall mean the Plaintiff and Defendants. V. Plaintiff. "Plaintifr' shall mean Lessie Lee Davies. W. Preliminary Approval Order. "Preliminary Approval Order" shall mean the order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit D. X. Putative Settlement Class Members. "Putative Settlement Class Members" shall mean all persons who are within the scope of the definition of the Settlement Class. Y. Release. "Release" shall mean the release described in Section VII herein. Z. Released Claims. "Released Claims" shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein. AA. Released Parties. "Released Parties" shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein. BB. Request for Exclusion. "Request for Exclusion" shall mean any request by any Putative Settlement Class Member for exclusion from the Settlement Class in compliance with Section IV herein.
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CC. Settlement. "Settlement" shall mean the agreement by the Plaintiff and Defendants to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement.
DD. Settlement Administrator. "Settlement Administrator" shall mean the qualified party selected by the Plaintiff and Defendants and designated and approved by the Court in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiff nor any other of the Defendants shall have any responsibility for any acts or omissions of the Settlement Administrator.
EE. Settlement Agreement. "Settlement Agreement" shall mean this Settlement Agreement, including any amendment hereto pursuant to Section X.D hereof, and all the exhibits attached hereto.
FF. Settlement Class. "Settlement Class" shall mean: All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
GG. Settlement Class Members. "Settlement Class Members" shall mean all persons in the Settlement Class who do not exclude themselves pursuant to Section IV herein.
HH. Settlement Fund. "Settlement Fund" shall mean a fund, governed by terms to be agreed to between Class Counsel and Defendants' Counsel which shall be placed in an escrow account and utilized to administer the monetary requirements of the Settlement. The Settlement Fund will be established by Class Counsel and entitled the "Schenectady County Jail Class
7

Action Settlement Fund" and treated as trust fund monies under relevant New York ethical standards.
II. Settlement Amount. "Settlement Amount" shall mean the amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) to be paid by the Defendants.
JJ. Settlement Website: Class Counsel will establish a website to provide information to settlement class members with a world wide web address of w w w .scj settlement. com.
KK. 2006 Strip Search Policy. "2006 Strip Search Policy" shall mean the attached written policy, revised by the Defendants as part of this Agreement, to govern the conduct of all strip searches by Defendants, their agents, and employees upon a person's entry into the Schenectady County Jail.
LL. Summary Notice. "Summary Notice" shall mean a notice in substantially the same form as that which appears at Exhibit E.
MM. Website Administrator: "Website Administrator" shall mean the qualified party selected by the Plaintiff and Defendants and designated and approved by the Court in the Preliminary Approval Order to administer the Settlement Website, including implementing the distribution notice and other settlement documentation via the internet. Neither Plaintiff nor any other of the Defendants shall have any responsibility for any acts or omissions of the Website Administrator. Pending approval of the Court, the parties agree to select I Partners, Amsterdam, New York, as the website administrator.
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II. REQUIRED EVENTS A. Promptly after execution of this Settlement Agreement by all Parties:
l. Class Counsel and Defendants' Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment in substantially the forms attached hereto as Exhibits D and C, respectively.
2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit D, which by its terms shall:
a. Preliminarily approve the terms of the Settlement Agreement, including the certification of the Settlement Class for purposes of this Settlement Agreement only, as within the range of fair, reasonable and adequate settlements for purposes of issuing notice;
b. Approve the contents of the Class Notice and methods in the Notice Plan; c. Approve the Settlement Administrator; and d. Schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment (in substantially the same form as Exhibit C) approving the Class Settlement, granting Class Counsel's application for fees and expenses, and dismissing the Litigation with prejudice. 3. Class Counsel and Defendants' Counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment. 4. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel and Defendants' Counsel agree to use their best
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efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; provided, however, that in no event shall any Defendant be required to agree to any such cure that would materially increase the cost or burden of the Settlement Agreement to such Defendant.
5. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties' obligations under this paragraph shall be submitted for decision by the Mediator and his decision shall be binding on the Parties.
III. SETTLEMENT TERMS A. Provision of Strip Search Policy and Corrections Officer Training 1. The Defendants have agreed to enact a new strip search policy, a copy of which is attached to this Agreement as Exhibit G. 2. The Schenectady County Correctional Facility Employee Manual will include a copy of the new Strip Search Policy. 3. A summary of the Strip Search Policy shall be posted conspicuously in the booking room and the training room and a copy of the full policy will be readily available to all corrections personnel.
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4. Current and new corrections officers will be trained in the new Strip Search Policy and when strip searches may and may not be performed. The training of current officers will be completed within 90 days after preliminary approvaL Defendants will present Class Counsel with copies of all training materials, and will further confirm in writing that all Schenectady County Corrections Officers have received the required training.
5. Defendants will take reasonable steps to ensure that all corrections officers abide by the new Strip Search Policy.
6. The Strip Search Policy shall provide, among other things, that all admission strip searches will be conducted only based on reasonable suspicion, in privacy, and only in the presence of corrections officers of the same sex of the detainee to the extent that gender is a bona fide occupational qualification for such searches.
B. Settlement Fund 1. Defendants will pay into the Settlement Fund the sum of $2,500,000. 2. Not later than ten (1 0) business days after entry of the Preliminary Approval Order, Defendants will pay into the Settlement Fund the amount of $ 50,000 (the "Initial Contribution") to be used by the Settlement and Website Administrators to cover the initial costs of Notice and administration of the Settlement. If, at any time, whether by order of any court or because of any Defendant exercising any option to withdraw, the Settlement does not become final, then any unspent money remaining from the Initial Contribution shall be returned to the Defendants with no obligation on the part of Class Counsel to repay any portion of the money actually spent. 3. Defendants' remaining monetary obligation of $2,450,000 will be provided for deposit into the Settlement Fund within five business days of the Effective Date by either wire
11

transfer or cashier's check. 4. All administrative expenses, including the costs of settlement administration,
website administration and the provision of notice to class members, will be deducted from the Settlement Amount prior to determining the "Distribution Amount," provided above.
C. Payments to Class Members 1. Each Class Member who submits a timely Claim Form will be entitled to receive their proportionate share of the Distribution Amount. This amount will be distributed to the Class based on the Plan of Distribution attached to this agreement as Exhibit F. 2. No Class Member shall be entitled to more than his or her individual share of the Distribution Amount regardless of the number of times he or she has been booked and/or strip searched at the Schenectady County Jail. 3. No portion of the Distribution Amount shall be disbursed before the Effective Date, except as set forth in Section IILD.l., below. 4. Both parties anticipate that late claims may be filed subsequent to the end of the claims period but before the final approval hearing. Late claims may be allowed, if submitted on or before the date of the Final Approval Hearing, under the sole discretion of class counsel for good cause shown. All late claims will be approved by the Court prior to being paid as part of the distribution of the settlement. 5. The County defendants agree not to issue any lien notices pursuant to New York Social Services Law Section 104-b to class counsel, the Settlement Administrator, or any liability insurance carrier insuring or indemnifying any defendant in this action. The County further agrees not to issue any lien notices pursuant to Social Services Law Section 104-b to any class member seeking recovery based upon the settlement in this action. The County expressly
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reserves its right to assert a lien against any class member based upon any cause of action possessed by that class member except for claims made in this litigation. Except as otherwise required by law, Schenectady County also agrees not to distribute or disclose the identities of any individual who is a member of the settlement class or who makes a claim on the settlement fund, including disclosing these identities to other County or State Departments of Social Services. This provision does not preclude the enforcement of any liens held by third parties against class members where enforcement efforts are made independent of the Schenectady County Department of Social Services.
D. Attorneys Fees and Expenses 1. Class Counsel will petition the Court for an award of attorneys' fees and expenses in the amount not to exceed 26% of the Settlement Amount. Defendants shall not oppose Class Counsel's application for said award of fees and expenses, nor will they oppose any appeal filed by Class Counsel relative to their application for an award of attorneys' fees. E. Additional Discovery 1. The parties acknowledge that one of the purposes of the settlement is to give notice to as many class members as possible. The defendants will provide booking records for all nonfelony arrests for the relevant time period, redacting health information, to assist in the notification process. The plaintiffs are concerned that the booking record addresses may not be current and will seek leave of Court for an Order directing the Schenectady County Department of Social Services to provide last known addresses for all persons for whom the booking record addresses prove to be inaccurate. The plaintiffs agree that the Settlement Administrator shall pay the reasonable hourly rate for all County staff required to respond to such requests. The plaintiffs agree that should the Court grant their request for an Order, that any such Order will
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require that the disclosure be limited to the Class Counsel and the Settlement Administrator solely for the purpose of effecting notice to the members of the settlement class and that all such records or information provided by the County will be returned to it, or destroyed with the consent of the County, within 60 days after the Court provides final approval or when the appeals are exhausted, whichever is later. The defendants believe that all information in possession of the County Department of Social Services is confidential and opposes its disclosure upon this ground. The County will, however, obey all Orders of the District Court.
F. Partial Distribution Pending Appeal 1. In the event that final approval of the settlement is appealed by either party or a third party objector, and if the payment of some portion of the settlement fund is not subject to dispute, that undisputed portion of the settlement fund shall be distributed in accordance with this agreement. If the distribution of some or all of the settlement proceeds are in dispute due to a pending appeal, the disputed amount will be placed in an insured interest bearing escrow account and shall not be distributed during the pendency of the appeal. In the event that final approval of the settlement is overturned on appeal, all funds, including interest, will be refunded to the Defendants with the exception of the Initial Contribution, detailed in § III(B)(2), and any additional notice and administration costs incurred above the Initial Contribution.

A 1. Program. 2.

IV. NOTIFICATION TO CLASS MEMBERS Responsibilities of the Settlement Administrator and Website Administrator The Settlement Administrator shall implement and administer the Notice
The Settlement Administrator shall be responsible for, without limitation: (i)

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mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; (iv) distributing payments to class members; and otherwise administering the Notice Program. The Notice Program shall comply with all requirements of applicable law. The Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of their fiduciary duty to the Court, Class Members, or Class Counsel. The Settlement Administrator will provide a copy of this insurance policy to counsel for the Defendants, who will hold it in confidence and return it to the Settlement Administrator upon the successful conclusion of the claims period.
B. Notice 1. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all individuals at their last known or readily ascertainable address and by publication in the Albany Times Union and the Schenectady Daily Gazette on at least one day per week for four consecutive weeks commencing on the Notice date. 2. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. The Website Administrator will also provide downloadable copies of notices, claim forms, court decisions and other information to class members through a dedicated internet website, www.scjsettlement.com. 3. Defendants will cooperate in the Notice Program by providing Schenectady County Jail booking sheet(s) for each person believed to fall within the Class Definition, together with any other information (e.g. Social Security Numbers, Dates of Birth) that a third party administrator may need to facilitate proper notice. The Defendants will also provide addresses
15

for class members that are detailed in Schenectady County Probation Department and/or Department of Social Services records, if this is the last known address, assuming that such information is ordered disclosed by the Court if the booking record information proves to be inaccurate pursuant to Section III E-1. The Defendants will not be responsible to provide these records in an electronic format to the extent that they do not exist in an electronic format. Any expenses associated with converting paper records into an electronic format will be borne by the Plaintiffs as an administrative expense, and these expenses will be paid from the settlement fund.
5. If, after the initial mailing, the Notice is returned as undeliverable, the Claims Administrator will attempt to locate the Class Member by way of a national locator database or service and, if another address is found, remail the Notice to that new address.
6. The Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendants' Counsel, attesting to the measures undertaken to provide Notice of the Settlement to Settlement Class Members. The Website Administrator will also provide an affidavit attesting to activity on the settlement website, including number of visitors and number of documents downloaded.
7. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other information about specific Settlement Class Members and/or specific Settlement Class Members that is provided to it by Defendants, Class Counsel, or by individual Settlement Class Members or individual Settlement Class Members, shall all be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
8. Class Counsel will employ an interpreter on a per diem basis to assist class
16

members whose primary language is Spanish in filing claims under the settlement. The costs of this interpreter will paid as an administrative cost.
IV. REQUESTS FOR EXCLUSION BY CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Settlement Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement Class, does not wish to be a Settlement Class Member and elects to be excluded from any judgment entered pursuant to this Settlement. B. Any Putative Settlement Class Member who submits a timely Request for Exclusion or Opt-Out Notice may not file an objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement. C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class Counsel and to Defendants' Counsel together with copies of the Request for Exclusion. Class Counsel and Defendants' Counsel shall jointly report the names appearing on the Opt-Out List to the Court no less than three (3) business days prior to the Final Approval Hearing. D. If Requests for Exclusion have been filed by more than ten (10) percent of the members of the settlement class, then the Defendants shall have the right to terminate this Agreement within five (5) business days after receipt of the opt-out list from the settlement
17

administrator. The Defendants will be required to notify the Court and Class Counsel in writing in the event they assert their right to terminate the settlement. Any monies expended by Class Counsel, the Settlement Administrator and/or the Website Administrator to provide Notice to Class Members and administer the settlement prior to the Defendants' decision to terminate this Agreement will be paid by the Defendants in the event they exceed the Initial Contribution, or, in the event they do not exceed the Initial Contribution, these costs will not be refunded to the Defendants from the Initial Contribution.
V. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Settlement Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support of the objection. B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration ofjustice and the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard,
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including all papers or evidence in support thereof, upon Class Counsel and Defendants' Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Court.
VII. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT A. By this Settlement Agreement and the following Release, Defendants, and all of
their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, and employees are released from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiff or any member of the Settlement Class against the Released Persons, or any of them, based upon or related to the actions that are the subject of this Settlement Agreement.
B. This Settlement Agreement and Release does not affect the rights, if any, of Settlement Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to, orders enjoining Settlement Class Members from prosecuting claims that are released pursuant to the Settlement
19

Agreement. D. Upon the Effective Date and the conclusion of any appeals: (i) the Settlement
Agreement shall be the exclusive remedy for any and all Released Claims of Settlement Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Settlement Class Members and their successors, predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal.
E. Tolling of Statute of Limitations. Defendants agree that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Settlement Class who has properly opted out of the Settlement, that the calculation of any statute of limitations, repose or laches defense in relation to such action shall not include the period from June 29, 2004 through and including the date of the Opt-Out Deadline. Further, in the event that the Court does not approve this Settlement Agreement, or the Court's approval of this Settlement Agreement is terminated pursuant to the provisions of this Settlement Agreement, Defendants agree that, with respect to any claims asserted in the Litigation that are subsequently asserted or maintained in any existing or subsequently filed class action lawsuit, by any member of the Settlement Class, Defendants shall not assert any statute of limitations, repose or laches defense that is premised upon the time period of June 29,2004 through and including the date of the last of the following events to occur: the entry of the Court's order disapproving this Settlement Agreement, the appellate court's decision reversing the Court's order approving this Settlement Agreement, or the termination of this Settlement Agreement.
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VII. INCENTIVE AWARDS TO CLASS REPRESENTATIVE A. Given the efforts of one named Plaintiff and a proposed intervenor on behalf of the Settlement Class, Defendants will not oppose total awards by the Court to the Plaintiffs and Class Representatives as follows: 1. Subject to the Court's approval, Plaintiff and Class Representative Lessie Lee Davies will be awarded $12,000 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is agreed between the parties that Ms. Davies provided substantial assistance to Class Counsel in their prosecution of this action, and that Ms. Davies, as lead plaintiff in this action, was subject to considerable public scrutiny as a result of the filing of his action. 2. Subject to the Court's approval, Proposed Intervenor and Proposed Class Representative William Smith will be awarded $1,500.00 from the settlement fund, such amount to be paid before distributions to the general Class, in addition to Mr. Smith's receipt of his proportionate share of the distribution amount. It is agreed between the parties that Mr. Smith provided assistance to class counsel by agreeing to intervene in this action and serve as a class representative. 3. Former Class Representative Nichole McDaniel will receive no incentive payment, but is eligible to make a claim on the settlement and receive a proportionate settlement payment.
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IX. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation. B. Defendants, through their undersigned attorneys, represent and warrant that they have the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Defendants of this Settlement Agreement and the consummation by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of Defendants. This Settlement Agreement has been duly and validly executed and delivered by Defendants and constitutes their legal, valid, and binding obligation.
X. MISCELLANEOUS PROVISIONS A. This Settlement Agreement, and the exhibits and related documents hereto, are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Any payment of moneys, or any other action taken, by any of the Defendants pursuant to any provision of this Settlement Agreement, shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by
22

Defendants with respect to any wrongdoing, fault, or om1ss1on of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Defendants and each of them deny any liability to Plaintiffs and to all Members of the Settlement Class. This provision shall survive the expiration or voiding of the Settlement Agreement.
B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Judgment is not entered, then this Settlement Agreement, including any releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties' settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties.
E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
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F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
G. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear his or its own costs of the Litigation.
H. If any clause, provision or paragraph of this Settlement Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this Settlement Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had not been contained herein.
I. The Parties to this Settlement Agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement.
J. All applications for Court approval or Court orders required under this Settlement Agreement shall be made on notice to Plaintiffs and Defendants.
K. The determination of the terms of, and the drafting of, this Settlement Agreement, including its exhibits, has been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of all Parties and their counsel, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the Parties was represented by competent and effective counsel throughout the course of settlement negotiations and in the drafting and execution of this Settlement Agreement, and there was no disparity in bargaining power among
24

the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any other Party or any other Party's counseL
L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material and integral
parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitute the entire,
fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the Litigation.
M. Notice: 1. Any notice, request or instruction or other document to be given by any
party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:
If to Defendants to: William J. Greagan, Esq., Goldberg Segalla LLP, 8 Southwoods Boulevard, Albany, NY 12211.
If to Class Counsel or Plaintiffs to: Elmer Robert Keach, III, Esquire, Law Offices of Elmer Robert Keach, III, PC, 1040 Riverfront Center, P.0. Box 70, Amsterdam, NY 12010.
N. Dispute Resolution The Parties agree that any disputes regarding the terms and conditions of this Agreement, the Parties' rights and obligations under this Settlement Agreement, and/or the manner in which any issue or dispute arising under this Settlement Agreement shall be submitted to the Mediator,
25

who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, shall decide such dispute. The Mediator's decision shall be final and binding. If for any reason the Mediator becomes unable to serve, the Parties shall attempt to agree on a substitute mediator. If they are unable to do so, any issue or dispute covered by this Section shall be resolved by the Court.
IN WITNESS WHEREOF, Plaintiffs and Defendants and their respective counsel have executed this Settlement Agreement as of the date(s) indicated on the lines below.
Dated: July1l,2006
squire LAW OFFICES OF LMER ROBERT KEACH, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 (518) 434-1718 ATTORNEY FOR PLAINTIFFS AND THE SETTLEMENT CLASS
Southwoods Boulevard Albany, NY 12211 (518) 463-5400 ATTORNEY FOR DEFENDANTS
26

Exhibit A

CLAIM FORM AND RELEASE
PLEASE READ THESE INSTRUCTIONS AND CLAIM FORM CAREFULLY
You must fill out and send in the attached Claim Form, postmarked by [INSERT DATE} to share in the settlement fund and receive money under the settlement.
I. GENERAL INSTRUCTIONS
A. To get money from the Settlement Fund in this litigation (McDaniel v. County of Schenectady), members of the Settlement Class must fill out the Claim Form and Release. The Form is attached at the end of these instructions. The completed and signed Claim Form and Release must be postmarked by {insert date]. Ifyou fail to send it in on time, it will be rejected and you will not get any money. You must submit it in the enclosed envelope or another properly addressed, postage prepaid envelope to the following address:
Settlement Administrator [insert address + 800 number]
B. If you have any questions about how the Settlement Fund will be divided up, you should write or call the Settlement Administrator. Their address and phone number is above.
C. All Settlement Class Members who do not exclude themselves are bound by the terms of the judgment. This is true whether you send in a form or not.
D. If you have asked to be excluded, do not submit a Proof of Claim and release Form.
II. DEFINITIONS
A. "Settlement Class" are all the people who satisfy ALL the following four conditions: 1. you entered the Schenectady County Jail; 2. you were charged with a misdemeanor, violation, traffic violation, violation of
probation or parole, or held on a civil matter such as on a Family Court warrant; 3. you were strip searched at the jail upon entry; AND 4. you were strip searched during the period June 29, 2001 through June 29, 2005.
If you have questions about these requirements, you should review the Class Notice.
B. "Defendants" are to the County of Schenectady and certain employees of the Schenectady County Sheriff's Department.
1

C. "Litigation" is the case of McDaniel v. County ofSchenectady, Index No. 04-CV0757(GLS)(RFT) in the United States District Court for the Northern District ofNew York.
III. CLAIM FORM INSTRUCTIONS
A. Please type or neatly print all the information that is asked for.
B. By signing below you are verifying that the information your have included is correct, and that you agree to provide additional information to Class Counsel or the Settlement Administrator to support your claim. They may ask you to do this in the future.
C. By signing below you are also verifying that you have not filed a claim or lawsuit about being strip searched at the jail, and that you did not ask anyone else to file one for you, and you don't know of anyone who might have filed one for you.
D. Please read the instructions carefully. Your claim will be checked and verified by the Settlement Administrator. You should keep copies of all documents that support your claim while this is going on.
E. If you want money from the Settlement Fund you must complete Part 1 ofthe Claim Form and the additional Parts of the Claim Form that apply to you.
F. A Claim Form and Release will be considered submitted to the Settlement Administrator if it is mailed in a first-class envelope that is postmarked by the due date. You may want to send in your claim form by Certified Mail, Return Receipt Requested. If you send the Claim Form and Release to the Settlement Administrator in some way other than first-class mail, the Claim Form and Release will be considered "submitted" when it is received by the Settlement Administrator.
G. The Settlement Administrator will not tell you when they get your form. If you want to make sure the Settlement Administrator gets your form, you should send it by Certified Mail, Return Receipt Requested. It will take some time to process all the forms and send the checks. This work will be done as fast as possible, but each claim must be checked for accuracy and recorded.
H. Please write or call Settlement Administrator if your address changes.
THE CLAIM FORM MUST BE FILLED OUT AND SIGNED IF YOU WANT TO GET MONEY FROM THE SETTLEMENT FUND. THE ENVELOPE MUST BE POSTMARKED NO LATER THAN [INSERT DATE} 2006, AND MUST BE MAILED TO:
SETTLEMENT ADMINISTRATOR [INSERT ADDRESS]
2

IV. CLAIMFORM McDANIEL v. COUNTY OF SCHENECTADY PART 1: CLAIMANT IDENTIFICATION Claimant's Name:
Mailing Address:
City: _ _ _ _ _ _ _ _ _ _, State/Country:_ _ _ _ _ _ _ Zip Code:_ _ _ __
Date of Birth: -------------------
Date of Arrest if known, (Please say so if the date you give is an estimate): Actual Estimate
Criminal charges or other reason for arrest, if known (i.e. violation of probation, Family Court warrant):
(If you do not know what the charges against you were, but believe you are still a Class Member, you should file a claim. We will get your arrest record from the County. You may still be asked to provide more information about your case.)
Social Security Number: 3

Telephones: ( (

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

) _ _ _ _ _ _ _ (day) ( ) _ _ _ _ _ _ _ _ _ (evening)

)

(cell)

Person to contact (next of kin, family member, attorney, etc.) if there are questions regarding this claim (make sure to include telephone number):

4

SUBMISSION TO JURISDICTION OF THE COURT By signing below, I agree that the United States District Court for the Northern District of New York has the power to rule on my claim as a Settlement Class Member, and that the Court has the power to enforce the Release described below.
RELEASE By signing below, you acknowledge the release and discharge of the Defendants, and all of their respective parents, subsidiaries, affiliates, predecessors, successors and assigns, officers, agents, representatives, and employees, from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Settlement Class against the Released Persons, or any of them, based upon or related to strip searches in the Schenectady County Jail.
VERIFICATION I declare under penalty of perjury under the laws of the United States that the foregoing information provided by the undersigned is true and correct. I also declare that I was strip searched when I was admitted into the Schenectady County Jail. I filled out and signed this Proof of Claim and Release form on _ _ _ _ _ _ _ _, 2006, in (City, State, Country)
(Sign your name here)
(Type/Print your name here)
5

Exhibit B

Legal Notice United States District Court for the Northern District of New York
NOTICE OF PROPOSED SETTLEMENT AND HEARING
If You Entered the Schenectady County Jail from June 29, 2001 to June 29, 2005 And Were Strip Searched Upon Arrival, Then Your Rights Could Be Affected By A Proposed Class Action Settlement.
The United States District Court for the Northern District ofNew York authorized this notice. It is not from a lawyer. You are not being sued.
This is a proposed settlement of a class action lawsuit alleging that corrections officers employed at the Schenectady County Jail engaged in the practice of illegally strip searching all individuals charged with only misdemeanors or minor offenses upon their entry into the Schenectady County Jail from June 29, 2001 until June 29, 2005. The proposed settlement does not include individuals who were charged with felony offenses at the time of their admission to the Schenectady County Jail, or who were not strip searched when they entered the jail.
One benefit of the settlement to class members is that each class member will be entitled to an equal share of a $2.5 million settlement fund, after payment of administrative costs, incentive awards to the representative plaintiff, and attorneys' fees. The Defendants have also agreed to enact a new clothing exchange policy as part of the resolution of this litigation.
Visit the Settlement website at www.scjsettlement.com for additional details about the settlement. You may also get additional information by calling 1-800 [insert phone#] or by writing to [insert address].
Your legal rights are affected whether you act or don't act. Read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

Submit a Claim Form

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

Exclude Yourself

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

Object
Go to a Hearing Do Nothing

If you do not exclude yourself, you may write to the Court about why you do not like the Settlement or the request for legal fees and costs. You must send a written objection to the Court postmarked no later than [Insert Date].
You may ask to speak in Court about the fairness of the settlement or the request for fees and costs.
You get !!!!. payment. You give up your right to sue Defendants on these claims later.

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

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

I. WHY DID I GET THIS NOTICE PACKAGE?
You or someone in your family may have been admitted to the Schenectady County Jail on a misdemeanor, violation, traffic violation, violation of probation or parole, or on a family or civil court warrant from June 29, 2001 to June 29, 2005 and been subject to a strip search.
The Court sent you this notice because you have the right to know about a proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the settlement. If the Court approves it and after objections and appeals are resolved, an administrator appointed by the Court will make the monetary payments that the settlement allows. You will be informed of the progress of the settlement.
This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them and how to get them.
The Court in charge of this case is the United States District Court for the Northern District of New York, United States District Judge Gary L. Sharpe presiding. The case is called McDaniel v. County ofSchenectady, Index No. 04-CV-0757 (GLS)(RFT). The people who sued are called Plaintiffs, and the municipality and municipal officials they sued, the County of Schenectady, its correctional employees and elected officials, are called the Defendants.

II. WHAT IS THIS LAWSUIT ABOUT?
Plaintiffs claim in this lawsuit that the County of Schenectady illegally strip searched individuals admitted to the Schenectady County Jail who were charged with minor offenses, in violation of the unreasonable search provisions of the United States Constitution. Defendants deny that they did anything wrong, and contend that even if they did do anything wrong, Plaintiffs are not entitled to any money as a result of being searched.

III. WHY IS THIS A CLASS ACTION?
In a class action, one or more people, called Class Representatives (in this case Nicole McDaniel and Lessie Davies) sue on behalf of all people who have similar claims. All of these people are a Class or Class Members. One Court resolves the issues for all Class Members, except for those who exclude themselves from the Class. United States District Judge Gary L. Sharpe is in charge of this class action.
IV. WHY IS THERE A SETTLEMENT? The Court did not decide in favor of Plaintiffs or Defendants. Instead, both sides agreed
to a settlement. That way, they avoid the costs and risks of a trial, and the people affected will get compensation. The Class Representatives and their attorneys think the settlement is best for everyone who is alleged to have been illegally strip searched.
V. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
Judge Sharpe decided that everyone who fits this description is a Class Member: All persons who admitted into the Schenectady County Jail during the period June 29, 200 l, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
The Settlement does not cover individuals charged with felony offenses at the time of their entry into the Schenectady County Jail, anyone who entered the Jail after being convicted of (as compared to only being charged with) a crime, or anyone who entered the jail but was not strip searched as part of the Schenectady County Jail's booking procedure.
VI. DO I NEED TO PROVE THAT I WAS STRIP-SEARCHED, AND WHAT DOES THAT MEAN?
No, you do not need to prove that you were subjected to such a search. In filling out the Claim Form, you will affirm, under penalty of perjury, that you were strip searched, and Defendants will accept this affirmation. Provided that your name is detailed in booking records maintained by Schenectady County, your affirmation will entitle you to payment. If your name is not contained in Schenectady County's records, you may be asked to provide additional documentation before being allowed to participate in the settlement.
A strip search occurred when you were ordered to take off some or all of your clothes by a Schenectady County employee, with that employee watching you undress. Some members of the Class may also have been forced to bend at the waist or manipulate body parts to allow for a visual inspection. If you were searched in this manner when you were booked into the facility, you are a member of the class and entitled to make a claim. You will need to provide an

affirmation on the Claim Form confirming that one of these searches was conducted on you when you entered the Schenectady County Jail
VII. I WAS STRIP SEARCHED AFTER RECEIVING A VISIT AND ALSO WHEN RETURNING FROM COURT WHEN I WAS IN THE SCHENECTADY COUNTY JAIL. DOES THIS MEAN I CAN ALSO MAKE A CLAIM?
No. Searches of this type are permissible. You can only make a claim if you were subjected to a strip search when you first entered the facility; meaning when your picture and fingerprints were taken and you received the jail uniform.
VIII. HOW DO I KNOW WHETHER THE CRIME FOR WHICH I WAS CHARGED UPON ADMISSION TO THE SCHENECTADY COUNTY JAIL QUALIFIES ME FOR INCLUSION IN THE CLASS?
New York law creates three distinct categories of offenses: Felonies, Misdemeanors and Violations. Felonies are the most serious crimes, and are usually punishable with incarceration in state prison. Felony offenses are usually handled by a County Court Judge, and require indictment by a grand jury. Murder, burglary and rape are examples of felony offenses. Anyone charged with a felony upon admission to the Schenectady County Jail, even if they were also charged with misdemeanors or violations at the same time, is not a member of the class unless they were, on another occasion, admitted to the Schenectady County Jail solely on misdemeanor or violation charges.
Misdemeanors are minor crimes and are, at most, subject to incarceration in a local jail. Misdemeanor offenses are handled by a City, Town or Village Court judge, and do not require indictment. Assault in the Third Degree, Petty Larceny and Unlawful Possession of Fireworks are prostitution are examples of misdemeanor offenses. Anyone charged with a misdemeanor on admission to the Schenectady County Jail is a member of the Class.
Violations are minor infractions, and are not considered criminal conduct. While violations can result in brief incarceration in a local jail, they are generally resolved with a fine. Violations are handled by a City, Town, or Village Court judge, and do not require indictment. Disorderly Conduct, Public Lewdness, Unlawful Possession of Marijuana, traffic violations (Driving While Intoxicated, for example) and city code violations are examples of violations. Anyone charged with a violation on admission to the Schenectady County Jail is a member of the class.
The settlement further allows for individuals to make claims if they were admitted to the Schenectady County Jail for violating the terms of their probation or parole, or if they were subject to a civil commitment. Parole is only assessed if an individual has served time in state prison. If the individual was charged solely with violating parole or probation (for instance, not honoring their conditions of supervision or violating curfew), they are considered to be a member of the class. If an individual is charged with violating probation or parole and is at the

same time charged with a felony, they are not a member of the class. A civil commitment is an order from a non-criminal court, usually the Family Court, committing that individual to the Schenectady County Jail. Individuals admitted to the Schenectady County Jail on a civil commitment, for example, a commitment for failure to pay child support, are members of the Class.
IX. I WAS ADMITTED TO THE SCHENECTADY COUNTY JAIL BUT I CAN'T REMEMBER WHAT MY CRIMINAL CHARGES WERE. HOW CAN I FIND THIS OUT, AND HOW DO I KNOW IF THE CHARGE WAS A MISDEMEANOR OR VIOLATION?
There are several ways for potential class members to determine the nature of their criminal charges. First, you can review your charging documents, which should reflect both your actual charges and whether the charges were a misdemeanor or violation. For instance, the criminal complaint filed against you may state "Assault in the Third Degree," a "Class A Misdemeanor," or something similar for each separate charge. If you do not have your charging document and remember the local court where you were prosecuted, the court clerk will be able to help you find these documents.
If you need additional help determining whether you are a class member, or of you have other questions, you can contact the Settlement Administrator at [insert number).
You can still make a claim if you do not remember your criminal charges if you believe you are a member of the Class, but you may be asked for additional information.
X. I PLED GUILTY TO A CRIME. HOW DOES THIS AFFECT BY RIGHT TO PARTICIPATE IN THE SETTLEMENT?
If you were admitted to the Schenectady County Jail solely on misdemeanor or other minor charges, as defined above, you can participate in the settlement regardless of how you resolved your criminal charges, including if you pled guilty to those charges, provided that you were admitted to the Jail before being sentenced by a court. For most class members, this would mean that they were committed to the Schenectady County Jail after they were arraigned before a Judge. If you were sentenced before admission to the jail, meaning you were committed after pleading guilty or being convicted at trial, you are not a class member.
XI. WHAT IF I WAS ADMITTED TO THE SCHENECTADY COUNTY JAIL ON MORE THAN ONE OCCASION? CAN I STILL PARTICIPATE IN THE SETTLEMENT?
Yes. Individuals who were admitted to the Schenectady County Jail on more than one occasion during the class period can be members of the class and can recover money. They can only recover one payment, however, meaning that you will not be provided with extra payments

if you were admitted to the Schenectady County Jail more than one time.
XII. I AM STILL NOT SURE IF I AM INCLUDED.
If you are still not sure if you are included, you can ask for help. You can call [insert number) and the settlement administrator or class counsel may help answer your questions. For more information, you can also visit the website [insert address] Or you can just fill out the Claim Form and return it to the Settlement Administrator to see if you qualify.
THE SETTLEMENT BENEFITS- WHAT YOU GET
XIII. WHAT DOES THE SETTLEMENT PROVIDE?
Defendants have agreed to pay $2,500,000 to resolve this litigation. That money will be used to: 1) compensate Class Members who have been illegally strip searched; 2) pay for notifying Class Members and administering the settlement; 3) pay incentive awards to the named Plaintiff, Lessie Davies, and a proposed intervenor, William Smith; and 4) pay attorneys' fees and expenses. Defendants have also agreed to alter their search policies for new detainees entering the Schenectady County Jail. A complete description of the settlement is provided in the Settlement Agreement. You can get a copy of the Settlement Agreement by visiting [enter website address) or by calling [enter administrator phone number).
XIV. WHAT CAN I GET FROM THE SETTLEMENT?
The settlement provides that all class members who make claims will receive an equal share of $2,500,000, minus the costs of notice and administration, an incentive award for the named Plaintiff, attorneys' fees, and expenses. Class counsel anticipates, based on claims rates from other settlements, that all individuals who make a claim on the settlement will receive between $750.00 and $1,250.00 as a settlement payments. These amounts are dependent on how many claims are received by the Claims Administrator during the claims period, and are subject to change based the number of claims received.
If you have any liens in place from the Schenectady County Department of Social Services, Schenectady County has agreed not to assert those liens as it relates to payments from this settlement.

HOW YOU GET A PAYMENT- SUBMITTING A CLAIM FORM
XV. HOW CAN I GET A PAYMENT?
To qualify for a payment, you MUST send in a Claim Form. A claim form is attached to this Notice. You can also get a claim form on the Internet at [insert web address]. Read the instructions carefully, fill out the form, sign it, and mail it postmarked no later than [insert date].
You may be asked for additional documents, and will be contacted in writing. You may want to send in your claim form by Certified Mail, Return Receipt Requested, to ensure that it is received by the Settlement Administrator.
XVI. WHEN WOULD I GET MY PAYMENT?
The court will hold a hearing on [insert date] to decide whether to approve the settlement. If Judge Sharpe approves the settlement, there may be appeals. It is always uncertain whether those appeals can be resolved, and resolving them can take time, perhaps more than a year. Everyone who sends in a claim form will be informed of the progress of the settlement. Please be patient.
XVII. WHAT AM I GIVING UP TO GET A PAYMENT OR STAY IN THE CLASS?
Unless you exclude yourself, you are staying in the Class, and that means you can't sue, continue to sue, or be part of any other lawsuit against Schenectady County, its employees, or its elected officials about the legal issues in this case. It also means that all the Court's orders will apply to you and legally bind you. If you sign the claim form, you will agree to release all claims that you have relating to having been strip searched.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you do not want a payment from this settlement, but you want to keep the right to sue or continue to sue Schenectady County on your own about the legal issues in this case, then you must take steps to preserve these rights. This is called excluding yourself- or is sometimes referred to as "opting out" ofthe Settlement Class.
XVIII. HOW DO I GET OUT OF THE SETTLEMENT?
To exclude yourself from the settlement, you must send a letter by mail saying that you want to be excluded from McDaniel v. County ofSchenectady. Be sure to include your name, address, telephone number and your signature. You must mail your exclusion request postmarked no later than [insert date] to [insert address].

You can't exclude yourself on the phone or by email. If you ask to be excluded, you will not get any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Schenectady County in the future.
XIX. IF I DO NOT EXCLUDE MYSELF, CAN I SUE SCHENECTADY COUNTY FOR THE SAME TIDNG LATER?
No. Unless you exclude yourself, you give up the right to sue Schenectady County for the claims that this settlement involves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this class action to continue your own lawsuit. Remember, the exclusion deadline is [insert date].
XX. IF I EXCLUDE MYSELF, CAN I GET MONEY FROM THE SETTLEMENT?
No. If you exclude yourself, do not send in a claim form to ask for money. But, you may sue, continue to sue, or be part of a different lawsuit against Schenectady County.
THE LAWYERS REPRESENTING YOU
XXI. DO I HAVE A LAWYER IN THIS CASE?
The Court approved the Law Offices of Elmer Robert Keach, III PC, Amsterdam, New York, Beranbaum Menken Ben-Asher & Bierman LLP, New York, New York, Cuneo, Gilbert & LaDuca, Washington, DC, and the Mason Law Firm, PLLC, Washington, DC to represent you and other Class Members. Together, the lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
XXII. HOW WILL THE LAWYERS BE PAID?
Class Counsel will ask the Court for attorneys' fees and expenses as a percentage of the $2,500,000 settlement, and a payment of$12,000.00 for Class Representative Lessie Davies, who provided substantial assistance to Class Counsel in the prosecution of this action, and the payment of$1,500.00 to William Smith, a class member who agreed to intervene in this action and provided assistance to class counsel. The Settlement Agreement provides that twenty-six percent of the settlement fund ($650,000.00) will be paid to class counsel as an award of attorneys' fees and for the reimbursement of expenses. These amounts will be deducted from the settlement fund before payments are made to Class Members. The costs of administering the settlement will also be deducted from the settlement fund.

OBJECTING TO THE SETTLEMENT
You can tell the Court that you do not agree with the settlement or some part of it.
XXIII. HOW DO I TELL THE COURT THAT I DO NOT LIKE THE SETTLEMENT?
If you are a Class Member, you can object to the settlement if you don't like any part of it. You can give objections why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to McDaniel v. Schenectady County. Be sure to include your name, address, telephone number, your signature, and the reasons why you object to this settlement. Mail the objection to these three different places postmarked no later than [insert date].
COURT Clerk of the Court U.S. District Court for the Northern District of New York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
CLASS COUNSEL Elmer R. Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL William J. Greagan, Esquire Goldberg Segalla LLP 8 Southwoods Boulevard Albany, NY 12211
XXIV. WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING MYSELF?
Objecting is simply telling the Court that you do not like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be a part of the class. If you exclude yourself, you have no basis to object because the case no longer affects you.

THE COURT'S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you do not have to do so.
XXV. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?
On [insert date] the United States District Court for the Northern District ofNew York will hold a fairness hearing in the James T. Foley United States Court House, 445 Broadway, Albany, New York in courtroom [insert courtroom] to determine whether the Class was properly certified and whether the proposed Settlement is fair, adequate, and reasonable. The Court will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay Class Counsel. This hearing may be continued or rescheduled by the Court without further notice. We do not know how long it will take the Court to give its decision.
XXVI. DO I HAVE TO COME TO THE HEARING?
No. Class Counsel will answer questions Judge Sharpe may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not required.
XXVII. MAY I SPEAK AT THE HEARING?
You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your "Notice oflntention to Appear in McDaniel v. County of Schenectady." Be sure to include your name, address, telephone number and your signature. Your Notice of Intention to Appear must be postmarked no later than [insert date] and be sent to the Clerk of the Court, Class Counsel, and Defense Counsel, at the three addresses in question XXIV. You cannot speak at this hearing if you excluded yourself.
IF YOU DO NOTHING
XXVIII. WHAT HAPPENS IF I DO NOTHING AT ALL?
If you do nothing, you will get no money from the settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Schenectady County about the legal issues in this case, ever again. Unless you exclude yourself, you need to file a claim to receive a monetary payment under the settlement.

GETTING MORE INFORMATION
XXIX. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT?
This Notice summarizes the proposed settlement. More details are in a Settlement Agreement. You can get a copy of the Settlement Agreement by writing to the Settlement Administrator at [insert address] or by visiting [insert web address].
XXX. HOW DO I GET MORE INFORMATION?
You can call [insert number], write to the Settlement Administrator at [insert address], or visit the website at www.scjsettlement.com, where you will find answers to common questions about the settlement, a claim form, plus other information to help you determine whether you are a Class Member and whether you are eligible for payment.

Exhibit C

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------------)(
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarIy situated,

-against-
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff ofthe County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriff's Department,

Index No. 04-CV-0757(GLS)(RFT)

Defendants.
-----------------------------------------------------------)(

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT

THIS CASE coming on for hearing before the undersigned Judge on

, 2006, pursuant to this Court's Order
------~

- - - - in order for this Court

to conduct a final fairness hearing to determine whether the proposed Settlement Agreement

between the parties is fair, reasonable and adequate, and to address Class Counsel's application

for an award of attorney's fees and costs; and the Settlement Class Members being represented

by Class Counsel and Defendants being represented by their attorney;

AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and

Memoranda of Law submitted by Class Counsel, having received evidence at the hearing, having

heard arguments from Class Counsel and the Defendants, and having considered the submissions

by Class members, now makes the following:

Exhibit C

FINDINGS OF FACT 1. This action was commenced on June 29, 2004, as a class action.
u. After many months of intensive litigation, including extensive discovery and motion practice before this Court, and as a result of intensive, arm's length negotiations between Class Counsel and Defendants, including a daylong settlement conference before Magistrate Judge Randolph F. Treece on May 17, 2005, the parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendants ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the Court on
iii. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement.
IV. As of the deadline for the filing of objections, only _ _ objections were filed. Given the size of this Settlement, and the notice plan described above, this Court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendants.
v. The settling Parties have filed with the Court an affidavit from _ _ _ _ _ _ _ declaring that the mailing of the Court-approved notice, consistent with the Notice Plan, has been completed.
vi. The Court finds that the published notice, mailed notice and Internet posting constitute the best practicable notice of the Fairness Hearing, the proposed Settlement,

Class Counsel's application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of New York and any other applicable law.
vn. Any persons who wished to excluded from this Action were provided an opportunity to "opt out" pursuant to the Notice. All persons who have validly excluded themselves from this Action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein. [List attached]
viii. Settlement Class Members are bound by the Settlement, the Settlement Agreement and releases contained therein, and the Final Order and Judgment, and do not have any further opportunity to opt-out of the Action.
ix. Any class member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs' Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
x. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:

a. The liability issues in this case have been vigorously contested. b. The Court notes that for settlement purposes, this Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the parties to this litigation and among the parties to the individual litigation. This Settlement provides Class Members with a substantial monetary benefit. c. This Settlement is clearly a byproduct of hard-fought litigation between the parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendants. xt. Class Counsel submitted to the Court and served on the Defendants their application for reasonable attorneys' fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel's request and hereby grants the request. xii. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems. NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND THE COURT HEREBY MAKES THE FOLLOWING:
CONCLUSIONS OF LAW xiii. This Court has jurisdiction over the parties and the subject matter of this proceeding.
XIV. Pursuant to Rule 23 ofthe Federal Rules of Civil Procedure, the following Settlement Class is certified for purposes of final settlement:

All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 200 l, through and including June 29, 2005, after being charged with misdemeanors, violations, violations of probation or parole, or held on civil matters, and claim that they were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
xv. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a Class Action is an appropriate
method for resolving the disputes in this litigation. All the prerequisites for Class certification
under Rule 23 are present. The Class members are ascertainable and too numerous to be joined.
Questions of law and fact common to all Class members predominate over individual issues and
should be determined in one proceeding with respect to all Class members. The Class
Representatives' claims are typical of those of the Class. The Class action mechanism is
superior to alternative means for adjudicating and resolving this action.
xvt. The Settlement Class Representative, Lessie Davies, is entitled to and is
hereby awarded a payment of $12,000.00, in recognition of the efforts she undertook in
connection with this lawsuit. William Davis, an individual who had planned to intervene in this action to assist class counsel, is hereby awarded an incentive award of $1,500.00 in addition to
his pro rata share of the settlement fund. Former Class Representative Nichole McDaniel will receive no incentive award. All class members who have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after administrative expenses, attorneys' fees and expenses, and incentive awards are deducted from the fund.
xvii. The Court grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 ofthe Federal Rules of Civil Procedure.

xvm. The Courts finds that the request for attorneys' fees is reasonable. NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
x1x. The Motion for Final Approval of the Proposed Settlement is GRANTED. xx. The Settlement Class Representative, Lessie Davies, is entitled to and is hereby awarded a payment of $12,000.00, in recognition of the efforts she undertook in connection with this lawsuit. William Davis, an individual who had planned to intervene in this action to assist class counsel, is hereby awarded an incentive award of $1,500.00 in addition to his pro rata share of the settlement fund. Former Class Representative Nichole McDaniel will receive no incentive award. All class members who have made claims on the settlement are entitled to receive their pro rata share of the settlement fund after administrative expenses, attorneys' fees and expenses, and incentive awards are deducted from the fund. xx1. The Class Counsels' application for attorneys' fees and expenses is granted. xxn. This Action and all claims against the Settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. xxiii. All Class members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.

IT IS SO ORDERED. Dated:

Hon. Gary L. Sharpe United States District Judge

Exhibit D

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------)(
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,

-against-
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriffs Department,

Index No. 04-CV-0757(GLS)(RFT)

Defendants. -----------------------------------------------------------)(
ORDER PRELIMINARILY APPROVING SETTLEMENT

WHEREAS, the Plaintiffs and Defendants have entered into a Settlement Agreement

intended to resolve the litigation pending in this Court; and

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

terms and conditions for a proposed settlement and dismissal with prejudice of these actions

against the Defendants; and

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

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

together with the Settlement Agreement and supporting materials; and

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

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

competent and experienced counsel for both Plaintiffs and Defendants,
IT IS HEREBY ORDERED AS FOLLOWS: 1. Capitalized terms used in this Order have the meanings assigned to them m the
Settlement Agreement and this Order. 2. The terms of the parties' Settlement Agreement are hereby conditionally approved,
subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that said settlement is sufficiently within the range of reasonableness and that notice
of the proposed settlement should be given as provided in this Order. 3. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the following settlement
class: All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
4. The Court further conditionally finds that Plaintiff Lessie Davies is an adequate class representative for the Settlement Class.
5. The Court further finds that Plaintiffs' Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Paragraph IV of the Settlement Agreement. 7. If the Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendants shall have reserved all their rights to oppose any and all class certification motions, to contest the

adequacy of Plaintiffs as representatives of any putative class, and to contest the adequacy of
Class Counsel as adequate Class Counsel. Additionally, Plaintiffs have reserved all of their
rights, including their right to continue with the litigation pending at the time of the settlement.
Notice to Settlement Class and Appointment o(Settlement Administrator
8. Counsel for the Class ("Class Counsel") are as follows:
Elmer R. Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32"d Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason, Esquire THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
Charles LaDuca, Esquire CUNEO, GILBERT & LaDUCA, LLP 507 C Street NE Washington, DC 20002
9. Beginning no later than [insert date], 2006, Class Counsel shall cause to be disseminated
the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth
in Paragraph IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class members will have sixty

(60) days from the Notice Date to opt out and one-hundred twenty (120) days from the Notice

Date to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims

Administrator shall serve and file a sworn statement attesting to compliance with the provisions

of this paragraph.

10. The notice to be provided as set forth in the Settlement Agreement is hereby found to be

the best practicable means of providing notice under the circumstances and, when completed,

shall constitute due and sufficient notice of the proposed settlement and the Final Approval

Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in

full compliance with the notice requirements of Fed R Civ. P. 23, due process, the Constitution

of the Untied States, the laws of New York and all other applicable laws. The Notices are

accurate, objective, informative and provide Class members with all of the information necessary

to make an informed decision regarding their participation in the Settlement and its fairness.

11. Class Counsel are authorized to retain

In

accordance with the terms of the Settlement Agreement and this Order.

Requests for Exclusion from the Settlement Class

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

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

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

close of the opt out period. The Request for Exclusion shall fully comply with the requirements

set forth in the Settlement Agreement. Members of the Settlement Class may not exclude

themselves by filing Requests for Exclusion as a group or class, but must in each instance

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

Administrator.

13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on final settlement approval (the "Final Approval Hearing") is hereby scheduled to be held before this Court on no later than one hundred fifty (150) days from the Notice Date, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are Defendants herein, and the entry of final judgment in this class action. Class Counsel's application for award of attorney's fees and costs shall be heard at the time of the fairness hearing. 15. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the settlement class of any scheduling issues by way of the settlement website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need

not, submit comments or objections to the proposed Settlement. Any Class member may object
to the proposed Settlement, entry of Final Order and Judgment approving the settlement, and
Class Counsel's application for fees and expenses by serving a written objection.
18. Any Class member making the objection (an "objector") must sign the objection
personally. An objection must state why the objector objects to the proposed Settlement and
provide the basis to support such position. If an objector intends to appear personally at the
Fairness Hearing, the objector must include with the objection a notice of the objector's intent to
appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed no later than sixty
(60) days from the Notice Date. If counsel is appearing on behalf of more than one Class
Member, counsel must identify each such Class Member and each Class Member must have
complied with the requirements of this Order. These documents must be field with the Clerk of
the Court at the following address:
Clerk of the Court U.S. District Court for the Northern District ofNew York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
20. Objections, along with any notices of intent to appear, must also be mailed to Class
Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL
Elmer R. Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL William J. Greagan, Esquire

Goldberg Segalla LLP 8 Southwoods Boulevard Albany, NY 12211 21. Only Class Members who have filed and served valid and timely notices of objection shall be entitled to be heard at the Fairness Hearing. Any Class Member who does not timely file and serve an objection in writing to the Settlement, entry of Final Judgment, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise. 22. Persons wishing to be heard at the Fairness Hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are elljoined from proceeding against the Defendants for the claims made in the Complaint. Other Provisions 24. Upon approval of the settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Dated:

Hon. Gary L. Sharpe United States District Judge

Exhibit E

COURT ORDERED LEGAL NOTICE
If you were admitted into the Schenectady County Jail between June 29, 2001 and June 29, 2005 and were strip searched, you could get a payment from a class action settlement.
A settlement has been proposed in a class action lawsuit about the strip search policies of the Schenectady County Jail ("SCJ"). The settlement will provide $2,500,000 to pay claims to individuals who were admitted into the SCJ and charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail.
The United States District Court for the Northern District of New York authorized this notice. The Court will have a hearing to decide whether to approve the settlement, so that the benefits may be paid.
Who's Included?
You are a Class Member and could get benefits if you were admitted into the SCJ from June 29, 2001, through and including June 29, 2005, and you were charged with a misdemeanor, violation, traffic violation, violation of probation or parole, or held on a civil matter, and you were strip searched upon your entry into the Jail.
What's This About?
The lawsuit claimed that Defendant Schenectady County and its Corrections Officers had an unlawful practice of strip searching everyone who was admitted into the Jail. Defendants deny they did anything wrong. The Court did not decide which side was right, but both sides agreed to the settlement to ensure a resolution and to provide benefits to the Class Members.
What Does the Settlement Provide?
Defendants agreed to pay a total of $2,500,000 to pay claims to Class Members, pay administrative costs of the settlement, pay an incentive award to the named Plaintiff, and pay attorneys' fees and expenses. Each Class Member who makes a claim will receive an equal share of the portion of the Settlement Fund allocated to pay claims to Class Members, which, after deducting administrative costs, incentive awards and attorneys' fees, will be approximately $1,750,000.00. There are believed to be approximately 6,000 Class Members. You can only make one Claim, even if you were strip searched more than once.

How Do You Ask For A Payment?
A detailed Notice and Claim Form package contains everything you need. Just call or visit the settlement website, www.scjsettlement.com, to get one. To qualify for a payment, you must send in a Claim Form. Claim forms are due by [insert date], 2006.
What Are Your Other Options?
If you don't want the settlement benefits or don't want to be legally bound by the settlement, you must exclude yourself by [insert date] 2006 or you won't be able to sue, or continue to sue, the Defendants about the claims in this case. If you exclude yourself, you can't get any benefits from this settlement. If you stay in the settlement, you may object to it by [insert date] 2006. The detailed notice, available by calling or visiting the website below, explains how to exclude yourself or object.
The court will hold a hearing in this case (McDaniel, et. al. v. County ofSchenectady, et. al. case no. 04-CV-0757) on [insert date], to consider whether to approve the settlement and a request by the lawyers representing all Class Members (The Law Offices of Elmer Robert Keach, III, PC Albany, NY, Beranbaum Menken Ben-Asher & Bierman LLP, New York, NY, Cuneo, Gilbert & Laduca, Washington, DC and The Mason Law Firm, Washington, DC) for attorneys' fees and costs. You may ask to appear at the hearing, but you don't have to. For more information, call toll free 1-800-000-0000, visit the settlement website www.scjsettlement.com, or write to Settlement, P.O Box X, City, State, 00000.

Exhibit F

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

NICHOLE MARIE McDANIEL and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,
Plaintiffs,

No. 04-CV-0757 (GLSIRFT)

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

PLAN OF DISTRIBUTION Defendants County of Schenectady, Harry Buffardi, Gordon Pollard and Robert Elwell (the "Defendants") have agreed to settle this class action by, among other things, paying $2.5 million into a Settlement Fund for the benefit of class members and named plaintiffs in this litigation. Subject to Court approval, Class Counsel intend to distribute the Settlement Fund as set forth below. As more fully set forth in the Settlement Agreement and the Class Notices, class members have the right to submit to the Court objections for its consideration to the Settlement and/or this Plan of Distribution. Attorneys' Fees, Costs. Administrative Expenses and Incentive Awards Pursuant to the Settlement Agreement and applicable law, Class Counsel intend to seek from the Settlement Fund reimbursement for the costs advanced in the prosecution of this litigation and an award of attorney's fees. Plaintiffs' counsel will apply to the Court for an award of costs and attorney's fees of no more than twenty-six percent (26 %)

LAW OFFICES OF ELHER HOBERT REACH, III

t-. PROFESSIONAL CORPORATION

1

1040 RIVERFRONT CENTEH • P.O. BOX 70 • AMSTERDAM, ::-iY l20l0 TELEPHONE F>~fl-434-!7!8 • TELt:COP!EB <5!H-770-!5f>B

ELECTRONIC MAIL: i IOilkt'Ht•h({r'l...{'<l<'il1tl\\'l'i 1'111.('0!1)

r

of the settlement fund, or $650,000. Additionally, Class Counsel proposes to allocate up to $13,500 of the settlement fund to pay incentive awards to class representative Lessie Davies ($12,000) and proposed intervenor William Smith ($1 ,500), who Class Counsel maintain provided assistance to them during the prosecution of this litigation. Deducting for estimated administrative expenses of $85,000 and for attorney's fees, costs and incentive awards, class counsel estimates that there will be approximately $1,750,000 in the settlement fund for distribution to class members. Distribution to Class Members
Class Counsel proposes that approximately $1.75 million of the settlement fund be allocated to pay claims by class members, and that each class member who files a valid claim will receive their pro rata share of the settlement fund when the fund is distributed after final approval. Based on data received from Schenectady County, Class Counsel estimates the class size here to be 6,000 individuals. Individuals who were admitted to the Schenectady County Jail on more than one occasion will only be allowed to file one claim against the settlement fund. When considering the claims rates achieved in similar settlements, Class Counsel estimates that each member of the settlement class that files a claim will receive between $750 and $1,250 as a settlement payment. Court Approval
At the time of the final approval hearing, Class Counsel will detail to the Court the final distribution to be made to settlement claimants and the amount to be paid per claim. Subject to the Court's approval, all proceeds to class members will then be paid based on the final distribution amounts provided at the time of the final approval hearing.

LAW OFFICES OF ELMEH ROBERT KEACH, III

A PROFESSIONAL CORFOHATION 1040 HIVERFHONT CENTEH • P. 0. DOX 70 • AHSTEHDAM, NY IZO!O

2

TELEPHONE 5!8-434-1718 • TELECOPTER 518-770-1558

ELECTRONIC MAIL: hohkc-~H'il€ilkc•n<·h i<nYfi 1*11l.von 1

Dated: August 1, 2006 Amsterdam, New York

)
I
Elmer Robe Kea h, III, Esquire LAW OFFICE OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeacb@keachlawfirm.com
LEAD COUNSEL FOR PLAINTIFFS

LAW OFFICES OF ELMEH ROBEHT KEACH, III

A PROFESSIONAL CORPORATION

3

1040 RIVERFRONT CENTEH • P. 0. BOX 70 • AMSTEHDAN. NY 12010

TELEPHONE 5Hl-434-1718 • TELECOPIER 518-770-1558

ELECTRONIC MAIL; hohlH'<--'\('tl(ii)kPu{·hiH\YI'il'fiLcon 1 .

Exhibit G 2006 Strip Search Policy

POLICY: The dee.ldou to mip ~earch 1111 iadlvidualat tft time of admhsioa, .mut be based ou reasoaabJe suplclou
tbat tbc porsoo may be coac:ea.ling 'Weapons ot other eontrabaad. Reasonable su.plc:ioo may be based oo; 1. The nature of tbe offcue (e.g., drag possession, weapon pouet.~~fon etc.); l, Tbe cbaraeterlsdc:s oi tile defulbnt (e..g., bcba~or, appcttaDte. prior teeord, prior custodial i.oformation); 3. Tbe cirnmsta~~ces of tile arrest a11d other rdh':tllti.Dforuuttioll provided by the arrelting or
transporting omccr.
Tbe booldllg otricer ahould aot lilllit themselvtt to one oftbe above facton but sJJouJd coasider all three so tbat an Informed decision can be made baled OD aU ofthe relevant drclllllltloeet aad information.
Additionally, aU Inmates shall be 5trlp sc:arcbed following contact visits; upon beini identified u suicide risks, prior to placement in a mentaJ health observation setting or placement in tbe Re3trictcd Hounng Unit, upon return to the faoility from ouuide court appearances, hospital trips, doctor appoint:nents or other locations outside the fJicility whm the prisoner may have tho opportunity to obtain and secret contraband.
PURPOSE; ro safeguud the Constitutiooa1 Rights oflnmates and a!SUTC the safety ofprisoners, staffand visitors1broogb the
detection and reeove& of contraband that threatens the integrity of facility security.
CASE LAW: The Second Circuit Court ofAppeals, which governs New York State, has detenoined that the 4• Ama~dment
prohibits suipfbody c;svity searches of arrestce3 unless the officials have a reasonable suspicion that the arrestee is COI!cealing weapons or other car:rtraband. The Court stated 'lhatRaSODable su.sploJon may ba based on the crime charged, the particular characteristics ofthc a:rteStee andlortbe circumstances ofthe arrest (Weber v.Dcll-1986), (Siu!in v.Eilison
- 2001).

Therefore, a deeldou to strip-selm:b &D}'ODc: ilthnitied to oar faeUHy mut be bAted DpclD ru1011able ~011, witll dac coJI&ldentlou. gmn to the utare ot the oft'ense inwlved. t:h:araeteristics aad k:anJedgt of tht subject aad tht clrC1UD.stluces of the arrest.

DI;JI'INITIONS:

1, .!lta•oaabk SII!JlieUm;,
"REASONABLE SUSl-ICJON• meao$ a legitimate reason to beJicve that aomt:ODc may be concealing con1nlband,

based upon tbe offil%r's 1raining, expail'lDcc md .specific fi.ctllbl information. "REASONABLE SUSPICION" may be

based on:

the nature oftho eta'Te8t charlJe;

infurmation provided by tbc do.livaring offic;er COJ:Iceming the arrestee;

s.tatcmeuts ofthe arrestee;

prior criminal history ar prior eustDdial infurmation;

observablt/dotectablc drug ilnpairmcnt

violent ortbreateuing beha\'iot (belligcnmt verbal conduct toward a

staff memb41r will not by Itself creata reuonab1e SWlpicio11)!

uncooperative or evasive conduct; failure to ~y clear contraband detection equipment or submit to

a pat search;

r·

suicidal bistoty; or

Ll tt :t· expressioos or other evidenceofsuicidal intent. :fe tJfll.:_ r) ~ Li f f.f' L( (!!(__

The decision to strip search, It etime ofadmisaion, .shall be made by the Property Officer. Authorization to

Strip Search mUBt be obtained ftom '!he .

and must be docummtcd in a repon

which is avbmitted to the,Op•~Re; l.iMe&aat (See: "Strip Search Justificatioa Sheet'").

e._,. f\.(- it IVJ ·

Furtben:nore, obllerwtion md deteetioo ofbruises or other phytical hljurics 111d!or unexplained lcm of

e<mscious.ocss may reqmre a vi5U81 examination oftbo unclothed !Ribjed. !to. Idi:D1if:ying 11J1Uis..lattoos, scars or

birthtnarks should bo docummted '¥Ia phamgrapb and booking sheet. However. a strip sear® may not be pducted

solely to locate or identij}r such marlcings. Markings on the intimato parts oftbe body sbouJd be documented in writing

ooly, hued upao the arrestee's admissioo.s, mponses and dialogue. '!11mspmtation ofmultiple prisoners may, tmder

certain circumstances. give rise to reasonable suspicion Ifthe exchange or transference ofcootmband between :riders in

a common carrier is probable or likely.

:z. Contgbp!d: Any illegal or uoautbmi~ item not issued by Sherift's pmonocl, any itc:m which is in excess ofthe
limits authorized, my itc:m .not sold by tho commissary, or any item that has lleen altered from Jts original state to be used lor some inappropriate purpose that may compromise the safety, security and/or good order oftb~ facility. Una.trthorized
items include, but are not limited to; money,jewclry, cigarettes, tobacco producb, keys, clothing items and clothing of
specific oolors, etc.

3. bt Search: A search ofa subject'a pcrliOll and his/her clothing while the mbject is clothed, except that !be aubject may
be required to remove his/her coat, bat, .fhocs md socli.s and empty the cantcnts oftheir pockets and 1mn them inside ou1.
The process dlall includ& !IC8I'ching the subject's clothing. A pat search is dooe to detcnnblo whether the &llhject Is in p05Session ofconcea1od weapons or ooniraband s.tCI'eted tmder ar 'lll.ithm the subject's clothing or oo tbw person. All w:rcst<:es ahaJ} receive a cursory pat sca:n::b prier to the removal ofrestraints. Once~ ~re removed a. more thorough
pat search shall bo conducted. A staffmember ofthe same ac:nder will COIIduct the $Web. However, a fc:mafe

offie~ may pat search a male prisantt Wh!t! a male officer is not immediately available llld a delay to !lt!ll!ch may
compromise wcty.

4. Coutnbaad Deted!OD Eqmpmeat: Any device llled to d&ect contraband, such as mctal items being under the

clothing. All arrestees shall be required to clear available contra.baud detection eqoiptneot prior to leaving the

admission area ofthe :facility. Exa.mples include; .£:land Held Wand,

-

·

~. Strip Spn;h: The visual inspectir;m ofa s.ubject's body, including the mouth, na:~e llld ears and lhe genital &Dd &Dal areas. After
clothing is removed and inspected. the subject is dirtdod to stand with lcp spread while bending at the waist to provide an unobsiructed visual inspettiolt The st4l'cl1 shall not inclu® touChing ofthe subject's person, except to
check 1be bair. AstB:ffmembc% ofthe same sendtr &ball conduct the search. A strip search shall take place in an area that affords privacy & protects the subject's dignity, h is pcr.furmed u a "ono on 011c" process. unJ~ the priM~er has de:mo.nstnded or created a security riJk and/or !lllfety tbre&t, thereby requiring additional supervision.

6. .Body Cavity Search: Is a search conducted by qualified medical per!!lOilllel pursuant to a Court Order authorizing the inspcdion and physical probing ofa subject's anal and/or vaginal cavity. The need for a Body Cmty Search &:btlllmmcdlamly be brought to the attcatian ofthe Admini$Uatl.(ll'l. The authorization to request a Court Order to eonduet a Cavity Seuch shall be
made by the Facility Superintendmt or his designee.

.PROCEDURAL GVJ»ELINJS:
"Contraband D$Ctian !!!d Elimination js 'the llespon&Utility ofAll Qmctiorusl StaffMemks...
AD Seardus,regardless of the type. shooJd be Systematic. Thorougb. Proft:ssional and Objective.
1. New: Adqt!gions: Admission personnel perform an essential fimctioo of preventing the introdoctioo of contraband i:oto tbe facility. Staff members arc respoosible for ensuring that all subjects are p.ropttly idMtifled, adequately interviewed and thoroughly cleared ofoonnbmd prior to cell Mlignmcnt. Staff llho11ld always make decisions and mke actions that 1!:119111'1'; & safc:guard the well being of io.llllltes, employees and visitors within the COITcet:ional fia4:ilily ind at cbe same time protect ~md respect the rigbb of!hose incarccmtod.
2. Paroltlllld/or frobatiOil VItiators: The same standard of"'reuonable suspicion" applies to Parole nr Probation Viola10rs. The oaturc of the underlyin& cblll'gc(s) whlcb Jead to the original scntcocc, the fact.s and circmnstanccs surrounding the current violation, as well as the eharar;tcristics ofthe llli'elrtee, may bo oonsidcrcd in determining whether, reasonable suspicioo exisu.

l, §.ttiQ Search~ At Admiuioa; A. At the time of intake, the Admissioos!Property Officer $hall: 1. Review the oommitmcnt paperwork; 2. Verify tbe charge;
3. Inquire of arrcstingltnmsport officer re; circumstances ofarrest & identity, rondition, behavior and
known biatory of arrestee; 4. Conduct a cursory pat search; S. Remove ratrain11; 6. Require arrestee to clear C(¥1tnlbimd detection devices; 7. Conduct a lborough pat~;

8. Inspect, inwntory a.nd n::c;eipt peno11aJ property;

9. .Documcut prescribed medications, jfany, and inform medical staff;

10. Interview amstee regarding prior arrests lllld incarcemtions;

11. Review available in:funnation and records relating to prior arrestJ md incarcerations;

12. Dtrtenn.ine if!trip search is appropriate. based upon reasonable suspicion;

a. Ifltrlp sca:n:h is deeme:d appropriate, oomplcte "Strip Search 1ustification Sheer and request

a.uihori:mtioo from

&r. Cooduct strip search,. · ·

·and change ofuniform;

b. Ifreasonable supiei ta CODduet 1 str:lp sarda does JIGt edit. the subjtd mnlt be afforded

prifacy c:ban~:e into a jaiiiiDiform. The Offtur mut eoasdoully avoid

any v:l.m1l iDspectiM fth1subjeet't unclothed genital aDd llll2larea.

t 13. Complete booking process.

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~·qo{ht/175 c/'

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N~
hrl- -to"'., IftheJ>b)ed"

(1'/<oltolo. drugs). "'ft6'ed., .......

. ~ Sc~o~-vt~L
rid; tlw ~~ U.• ll

docu111e1'/led on rhe lnmale's Medical Scrwnbtg Form and, f/ applicabll!, on 1M !ltiiJaJe S~lclde

Form,

with explanaiioJV (e.g;.; ]nmal8 told QI'Tt~ ojfte~r that he ''wtl/ kUl hiiii!IBifinjall''). The

r shall be

notified and the inmate shall be monitored. ifnece:uary, Jmlil seen by medical arrdlol' menral health 1f41! The JfTaleh

Commander may ddermine thar a strip search Lr necessaryfor the prozectlon ofIM mmate.
.&pecially ifthey are thtn.tglrJ to bt in ]J(JIIt!llion ofcoTICealahle comabandand/or l1rB 1teed to Jl# the "Safety Smocl:

Gar~~~t~lll" 13 in order. 'Tht request to use the garment will b!f ~t~ade by contacti11g the Mental Heallh Coordinator,

Linrttnonl or higlsr avthority. Atte'lfl[ltlJ to contact the~ o.fftr;:ia/1 and any crmvernJIIon corrl.ent shall bfJ dOCJimented

lnabUity to contact "'(.1)' 1teceasiiale "Use tJfGt11111ent ''prJor toformJJI authwiJ:alion. (kcordfact.s and actions taken).

2. Striu Ss!n;bet Dllrine Cu@d)!~

A. Contaci Visits: All inmatCil shall be stri)Hiearcbed followmg contact visits: The privi!C)' curtain Jn the conmt visit slrip search room mall be utiliml so that no inmate is strip-swched In tbe view of other inmates or 01her ~ then those Deeded to conduct tho
search.

B. Mental Health Observatloa: All inmates will be strip aearchod prior to placement in any Mcntlil Health Unit or CeU fur the purpose ofobservation. *NO'l'E• Spc<:iiic wit$ mey change, however this component ofthe procedure Is targeted at any homing unit or cell dedicated fur the housing ofpersons who are oo ~aJ status md who lll'C presently or scheduled to be interaetmg with the FaclJJty's
Forensic/Mental Be8lth Coordinator.

C. Supervised Leave: Some inmates may be strip IICII"Cbed prior to tnmsport outside the iitcl1ity fot reuons associated with beigbtcncd aecurity, i.e.: escape risks1 II!IS8ultivc behavior~ prior incidmt! ofeoncealcd contraband. etc. This determination should be made on a cue-by-case basis. Inmates reentering the facility from any court appeamnces, hospital trips, dootol appointments, etc. may be strip searobed ifremaining in
the custody ofthe Sheriff.

D. Unsupervised Leave: Inmates tetu:ming ftom temporary 1elcase, furlough, work relcalle, Intermittent seute:nces (i.e.; weekendm) !!ball be strip·stAli'Cbed.

·----·-----------------

E. Shakcdown&ITacticaJ Area Searchr:s:
A componmt of any tactical opt:taiian or random shukedown may include the search of an inmatc•s
Uvina quantt.!l. Each inmate may undergo a strip search to ensure that the inmate b not coo~ling contraband OD his/her p«SOD.
Inmates. a.uigncd to cells will be searched inside their cells (or other uea that provides privacy) when a housing area ia bcin3 searched.

F. Disciplinaly Segregation: Inmates confined to the Restricted Housing Unit (RHU) shall be strip searched as a component ofthe
inlt.laJ admission process to tbe unit

G. Otber Occasions For Strip Searching During Custody:

I

Any time a statfmember bas nwo:oable sutpicfoo to support a desired strip aearcb, the~ U '' 'G

~II:IMier n~ust be notified. The_ -€ommander wiD base his/her justification on available

criteria. A " tri Search Ji

h shall be required.
s U/1 I\;- clfY'!)lSC'R.._

3. Gmenl Rllltl:

A. All sean:bes must be eoaducted in a place and in a mannl!l' tbat promcts the st~bject's dignity to tbe extent

possible and affords the subject tho maximum amount of privacy available. Staff COI1dnctin& strip searches

should ensure that the area being used Jm)\'ide$ prlva.cy and is sccl.uded from the view ofothers. Searches

shall never be conducted as pllllishment or iDr the pmpo.so ofllan5smCill

B. All searches must be done in a systematic IUid orderly tnAMer. Do not allow for dist:ractioos or intmuptions

wbUe oooducting 11 &e~Jch.

C. Staff shall wcm penonal protective equlpmcni. i.e. g1ovoa when performing liCIIrcbcs. 0\ijX>sa.ble gloves wiD

be discarded In a safe and smritary mmer.

or D. SdshaD conduct 1b(!l;naclves ina profcssiona.l zmd digniljcd manner. The officer conducting a seareh will
explain 1o the subject the purpose and nr.a:ssity fur the search to awid lillY misunderSfatlding

the officer's actiooa by the subject.

E. Only female officeta shal1 pat sean:h ~U~dlor strip smell female subjects. Either malo or female

officers mil)' pat ~ male wbjoots. Only malt officers will strip-~ malo subjects.

F. Otlly during an emergency, will staffofthe oppos.i~ gender be pre:scnt whcn ami~ is conducted.

For example, a suicidal subject refuses to disrobe and suddenly attacks tbe offieer(s) and back up is

called and the olosc5t officers (male or female) respond.

Whenever 811 officer ofthe opposite gender is present,. during a strip 5eai'Cb under emergency circumstances,

the su~sor will be notified md they will make that fact a part ofthe incident report detailing the

situlltlon.

G. Ifforce is necessary to accomplish the search, the :furcC' sball be used acco;rding to sectio.ns J37.S, SOok of the

"f{.Y.S. Correction Law, Article 35 ofthe NYS Pw.ai.Law and other applicable lawa, ru.lm & rcaulatiou The

........,..,.U.wf:'·SL¥Jt'l'\lfs:-cf"..._sbaU also complete a "'Use ofFOI'ce" report

H. When OO!l"lllloand is reoovercd, the cfroumstance& ll.ld fi1cls surrounding its discovery shall be documented

U c ,, in an "''Dcldc:ut Repclf' and/or ..Sirip Search Justification Sheea".The report&: contraband shall be f()!'Wlll"ded

~ the i[J f'l ,.f, ~U.·"-i'Vf.l f)~~ secured in ~c mdeocc ~~et in Visital:ioo Cootrol. . ,.,

~,1 ,

- '·- · sbaU also documcmt .factund CJrcumatanccs mthen- Log.

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4. Selreh Method!; A. ContraJ,and Detc:dion Equipl!l~t- shllll bo used whenever available to assi$t in pcrfurming a thorough seireh. B. Pat Search- Officers will Pat Search all armtee5 entering the: confines oftho Sheriff's taci.litiM and whe:oever it appCBr.l e:videot that the opportunity existed for a subject to ba~ access to contraband. Staff mc:mberl arc Cllooutaged to COllduct frequent pat searches.

··--· -·-----------
Pat-Searcb Techniques:
1. Instrucr tbe subject to remove all items from his/her pockets and tum the pock.crti inside out and remove: outer garments, ie: shoes; socks, hat, jacket, ooat t~n<i JWe&.ter. If applicable, halr curlers, wi~, removable hairpiece or other hair ornaments. should be removed a.s well. These items thould be checked and placed out of
rc:acll of the inma:te; 2. Instruct subject to raise arms above head- examine the area oftheir armpits; J. Show tho pal:ms and hacts oftheir hands· closely examine betwti:ll the fingers;
4. Slowly tum in a eomplcrtc ~le- visually inspect the covered mrfilee of lbe torso and legs;
s. Lean forward and nm his/her :fingers tbrou&h their hair. The officer should then
nm his/her fingErs through the subject's hair, looking fur any hJddeu contraQ&nd; 6. Have the subject open their mollfh, lift ton~ a:nd remove false teeth or bridgework. Look inside
the mouth, r:ars and uose. Usc a1luhlight, ifadditiooal ill11m.inatlon Js needed: 1. Imtruct the subject to stand st.iB, (tactng away from you) with hilllbe.r ti:et apart and arms extended
forward. Have the subject lean forward against liD object, i.e.; wall, desk. oounter; etc., so thiU htlsbc
is mainly supported by the strenath oftbc their own arms. Their hands and feet should be eqaa.!Iy
distanced ap811 (bey(IDd tbc :lhoulders) I!Dd their body should be approximate!)' three feet frOIXI the wal1/object so as to keep tbem offbalance;
8. In&truct the subjcet to raise one foot tbca1he other· so that the soles ofthe feet may be viewed; 9. Blade lho subjoct at a 4.S degree angle, keeping your ltroiqJ side away from 1he •ubject. Begin a pal
search oflbe subject, oee.uiona.Uy squoczing firmly with your :fingers. Dcgi.o ~ducting a symroatic &earch catefully feeling the collar of the !lhirtlblouse/swcater, etc. and tbm move down the slocve$, shoulders, armpits, cheat, back. rib area, waistline, buttocks, crouch, legs. trouser ouffil a:ndlor bema, footwear, Lmd soots. Avoid placing your ha:ndslnto lillY area that ClmiiOt be visulllly inspected.
10. If the subject .has a removable splint, ca&t, prosthesis, ar artificiaJ eye, the foUowiDg steps will be
taken:
a. Rlm!ovable spHnts- Instruct subject to remove tho splint, check tbc area and splint and return spliut to tho subject (Notify tbc Mc:dkal S1D:ft).
b. Cast- use a band beld mell!l detector to IICIIl the cast a:rea. Atongue depreuor may be used to check a short distance down tho cast, ifnecessary. Ifmore than one ti;nger cau be placed between 1hc cast and the skin of the subject, the subject wiU be taken to Medical for evaluation. If110 Item is detected in the cast while conducting the search, tbe subject wiJl be mkeo to Medical .immediately after 1hc aoarc:h is wmpleted. Medical staffwill determine ii the subject sbould be Stmt fot u X-ray ofthe cast 11Ddl01' ranovaJ ofthe item.
c. Prosthesis -have the subject remove the prosthesis, check for ~ntrahaud. and :return prostbesis to the subject. (Notify .Mcdieal Staft).
d. ll'tificial eye- ifthe subject has an artificial eye, the subject will be escorted to Medical where ooly medical smff'wiU examine fur contraband.
11. Upon rompletloo oftbc pat search, direct/esoort tbe subject to an area where hef&he cannot commingle with other subjects who have not been pat searched. Note: AJJy COD1ra\land disooVl:l'ed or confiscated shall be secured as evidence, doownented in a report and turned over to the Operational Lieutenllllt or secured in the evidence container in Viaitatlm CcctroJ. l'hc Watch Commander's Log shall also be used.
C. Strip--Search; Su~ccts will be strip-&earched one at a time to avoid passing or disposing ofcontraband. AU strip-selll'cbes will be conducted in 1111 area dcllignlfed for this plllpOSe or in u ~~rea that provides maximum privacy fur the subject. Prior to the stripMsearch, the area will be cheeked fur contraband. There wi 11 be no physical eonmct with the su!licct durin$ any routine SUi~ c:x:c:ept to check tbe balr. The subject must
not be aDowed to move from place to place during the strip-searrh process.

A Strip Scarcb is divided into 1.'!!.9 major pre!& of conc:trn; 1. The visual inspection ofthe body and
2. The thorougb inspcotion of all clothing items. a. The body seareb rcqu.ires the visual inspcdion of tbe anterior and posterior of the body; including the visual im;pection of the bottom of the foet tmd a visual i.nspeetlon of body cavities. (During a routine ,wip search, there should be no need to make ph)1ical contact
with the subject). b. The clothing jtmns including pants cuffs, waistbands or trousers, underwear, shoes, etc.

Strip-Search Techniques: u

Specific Steps- Male Subject3

1 Wbile standing mete thlll an arm'• lc:ogtb from the officet, the subject will be insll'ueted to rCD:love all

clothing including socks, shoes, etc

2. All clothing will bt Jnspectcd by feeling evtry Item. AD MDtents shall be removed from poc:kets. All

clothing itetna including; shoes., sb06linings, heels, soles, etc.. will be checked for contraband and

placed out ofm.dl ofthe subject.

3. The subject will be insttuetM to bend forward and vigorously run his fingc::rs through his bair, which

should dislodge ~my matter tbal may be hidden 1here. Ifnecessary, officer may cl01ely exami.ne hair.

4. The subject will be instructed fD stand facing tbo oil:i~;:e:r and rai.e bis arms above his head so that 1he

afficc:r tall d\eok the ampltll and palmi ofhis hands.

5. The sulject wiD be inS1rUcted fD open bis mouth, raise his tongue, and tilt his bead back so that his

.oostrils am be checked. He will then be instructed to tum his head from side to side affording the

officer the ability to eheck the subject's cars for the PUIJIOSC ofdetecting contraband. Th~ entire front

sur1il.ce ofthe subject wiD be visually checked for ~my item. Subject will be instructed to lift any

flaps/rolla ofskiD to CJ(fll,lse areas underneath.

IS. The mbject will be iMtructt:d to lift his geoitals in such a way tbat tbe officer can check this area fur

concealed cantnlbaod.
wm 1. The JUbjcct will bo instructed to tum III"OUDd ~md tbe eutfro hack surface ofthe subject be

visually checked :fur llllY itm thlll may be taped to the !;lack.

8. The subject will be instructed to bend fOrward at the waist u far as be C8I1 without WJing over. He

will thCII be tokl to reach behind himself with both hands and separate his buttocks for tbe purpooe of

exposing any items he roay have piKed there.

9. After retu:rnmg to a standing position and whiJe still 18clng away ftom the officer. the subject wiD be

.instructed to lift each fOOt independently to display the soles ofbis feet. He w:ill be instrueted to

spread his toes so tbat a visual check can be made.

l 0. The subject will then be instrucb::d to tum around and fitcc the officer. Ho will then be instructed to

place his hands in such a.mmmer tlw both sides ofthe hands., as well as between the fingers, cau be

inspected.

11. The subject will be inslructed to put his auth<riuld clolhing back on and wiD be escorted out ofthe

s1rip-search area to an area where be Cllilllot commingle with other subject!.

12. If this search is a oomponent of tho admission process, the inmate shall be provided with a uniform.

13. The officer will check the uea fur Blly contraband. whicb Qligllt have bec.n disposed of by the subject.

Strip-Search Teclmlques: •• SpeclB.a Steps- female Subig:
1. While standing more thm an arm's lcnatb fi'om the oftietJr, tbe subject will be inslructed to remove
all clothing ineludini socks, shoes, etc. 2. All clothin-' will bo inspected by f'eelio,t every iu.m. All contents lha]) be removed from pockets. All
clothlni items in.cludin3; !!hoes, sb06linittgs, heels, solos, etc. will be c:b~ked for contraband and placed our ofreacll ofthe subject. 3. The subject will be instructed to band forward and vigoroosly run her .fingers tbroogh her hair, whicb should dislodge any .maltcr that may be bidden tbe.re.
4. The subject will be inslructcd to stand &cing the officer and ralsc her arms above her head so that the officc:r can cheek the annpitll and palms of her hands.

5. The subject will be instructed to open her mouth, raise her tongue, 111d tilt her head back so tbll1 ba: nostrils ean be checked. Sh~ will be instructed to tiD'D hEr bead ft'om side to side affording the officer the ability to check tbe 9ubject•s ears for tbe plll')l'O&e ofdetecting contr.band. The entire front r.utfacc ofthe wbjeet will be checked fur any itt:m. The :subject will be instructed to lift flaps/fold$ of skin to expose tbe area undemeatb.
6. The subject will be inwuttod 1o lift hcr breasts so that the area under hor br~s is exposed. 7. Still facing the officer,lhc subject will sqllBl with her lep aprcad apart so tbm tbc officer (:all visually
cheek tbe area fur my CODimband that the !lllbject may hav., attempted to conceal tbcrc. 8. The subject will be inSinlctcd to turn around and the entire back surface oftbe subject will be
visually checked for any Item that may be taped to the baclr:. 9. The subject will be insttucted to squat with the legs apart. She will be instrUcted to cough several
times to dislodge IDly hidden contraband. When returning to the stmdina position, the subject wlll be
asked to bead .COrward at the waist as mr as she e1111 without fi.ll.iog over, reacb behind herself with
both hmds and separate her buttocks fur the purpose of exposing any Item that abe may have placed tbcro.
10. After returning to a standing posJtion and while stJ1l facing awe.y from the offiw, the subject will be instructed to lift cacb fOOt independently to display tho soles of.ber feet. The subject will be
instructed to spread her toes so that a visual check can be made. 11. The subject will be iulructed 1o tum around and face the officer. She will be instructed to pJace her
hands in sudt a mmnerthat both sides oftbe hands, ewell as between the fing.n. can be in~cd. 12. The subject will be instructed to put her authorized clothing bact on and will be escorted out ofthe
snip-search wca to an area where she canoot commin&Je with alhcr subjects. 13. Ifthia search Ls a comp®ont ofthe admiuioo p.roccss., the inlnato shall be provided with a ooiform.
}4. The officer WJ11 Cheek the area fur COOtraband that Jlli2)lt have been diSposed of by the $Ubjeat.
Remember? ID searches sb.all be conducted In a systematic, thoro~~gb, profes.sion~t• ~tnd objective mamter. An)' questions should be directed to 1 iupenrhor for elarffteatloD IIDdlor explanation.

Strip Search Justification Sheet

INMATE'S

NAME:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _BOO~G#~.--------------

DATE:

_ _ _ _ _ _ _ _ _ _TIME:._ _ _ _ _ _(OF SEARCH)

SEARCH omCER'S

NAME:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _BADGE~-----------

EXPLANATION OF THE GROUNDS OR REASONS FOR CONDUCTING A StRIP
SEARCH:_ _ _ _ _ _ _ _~~-------------

FINDING/RESULT Of SEARCH:

en WJil e6Mli.hid\ftmR'S SIGNATURE
6 -w~u}'\t s;. cif frtA&~<-
co:MMENTs:

BADGE#

DATE

TIME

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------)(
NICHOLE MARIE McDANIEL, and LESSIE LEE DAVIES, both individually and on behalf of a class of others similarly situated,

-against-
COUNTY OF SCHENECTADY, HARRY BUFFARDI, both individually and in His official capacity as Sheriff of the County of Schenectady, GORDON POLLARD, both Individually and as Undersheriff of the County of Schenectady, and ROBERT ELWELL, both individually and as Major In the Schenectady County Sheriffs Department,

Index No. 04-CV-0757(GLS)(RFT)

Defendants. -----------------------------------------------------------)(
ORDER PRELIMINARILY APPROVING SETTLEMENT

WHEREAS, the Plaintiffs and Defendants have entered into a Settlement Agreement

intended to resolve the litigation pending in this Court; and

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

terms and conditions for a proposed settlement and dismissal with prejudice of these actions

against the Defendants; and

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

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

together with the Settlement Agreement and supporting materials; and

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

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

competent and experienced counsel for both Plaintiffs and Defendants,
IT IS HEREBY ORDERED AS FOLLOWS: 1. Capitalized terms used in this Order have the meanings assigned to them m the
Settlement Agreement and this Order. 2. The terms of the parties' Settlement Agreement are hereby conditionally approved,
subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that said settlement is sufficiently within the range of reasonableness and that notice
of the proposed settlement should be given as provided in this Order. 3. Pursuant to Fed R. Civ. P. 34 the Court conditionally certifies the following settlement
class: All persons who were placed into the custody of the Schenectady County Jail during the period June 29, 2001, through and including June 29, 2005, after being charged with misdemeanors, violations, traffic violations, violations of probation or parole, or held on civil matters, and were strip searched upon their entry into the Jail. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
4. The Court further conditionally finds that Plaintiff Lessie Davies is an adequate class representative for the Settlement Class.
5. The Court further finds that Plaintiffs' Counsel are adequate Class Counsel. 6. The Court approves the Class Notice of Settlement attached hereto as Exhibit A and the Summary Notice for Publication attached hereto as Exhibit B. The Court also approves the Notice Program as set forth in Paragraph IV of the Settlement Agreement. 7. If the Settlement Agreement is terminated or not consummated for any reason whatsoever, the conditional certification of the Settlement Class shall be void, the Defendants shall have reserved all their rights to oppose any and all class certification motions, to contest the

adequacy of Plaintiffs as representatives of any putative class, and to contest the adequacy of
Class Counsel as adequate Class Counsel. Additionally, Plaintiffs have reserved all of their
rights, including their right to continue with the litigation pending at the time of the settlement.
Notice to Settlement Class and Appointment o(Settlement Administrator
8. Counsel for the Class ("Class Counsel") are as follows:
Elmer R. Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Telephone (518) 434-1718 Facsimile (518) 770-1558
Bruce E. Menken, Esq. Jason J. Rozger, Esq. BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP 80 Pine Street, 32"d Floor New York, NY 10005 Telephone (212) 509-1616 Facsimile (212) 509-8088
Gary Mason, Esquire THE MASON LAW FIRM, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Telephone (202) 429-2290 Facsimile (202) 429-2294
Charles LaDuca, Esquire CUNEO, GILBERT & LaDUCA, LLP 507 C Street NE Washington, DC 20002
9. Beginning no later than [insert date], 2006, Class Counsel shall cause to be disseminated
the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth
in Paragraph IV of the Settlement Agreement. Such Notice Program will be completed
expeditiously pursuant to the terms of the Settlement Agreement. Class members will have sixty

(60) days from the Notice Date to opt out and one-hundred twenty (120) days from the Notice

Date to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims

Administrator shall serve and file a sworn statement attesting to compliance with the provisions

of this paragraph.

10. The notice to be provided as set forth in the Settlement Agreement is hereby found to be

the best practicable means of providing notice under the circumstances and, when completed,

shall constitute due and sufficient notice of the proposed settlement and the Final Approval

Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in

full compliance with the notice requirements of Fed R Civ. P. 23, due process, the Constitution

of the Untied States, the laws of New York and all other applicable laws. The Notices are

accurate, objective, informative and provide Class members with all of the information necessary

to make an informed decision regarding their participation in the Settlement and its fairness.

11. Class Counsel are authorized to retain

In

accordance with the terms of the Settlement Agreement and this Order.

Requests for Exclusion from the Settlement Class

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

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

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

close of the opt out period. The Request for Exclusion shall fully comply with the requirements

set forth in the Settlement Agreement. Members of the Settlement Class may not exclude

themselves by filing Requests for Exclusion as a group or class, but must in each instance

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

Administrator.

13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on final settlement approval (the "Final Approval Hearing") is hereby scheduled to be held before this Court on no later than one hundred fifty (150) days from the Notice Date, to consider the fairness, the reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are Defendants herein, and the entry of final judgment in this class action. Class Counsel's application for award of attorney's fees and costs shall be heard at the time of the fairness hearing. 15. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the settlement class of any scheduling issues by way of the settlement website. 16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 17. Any person who does not elect to be excluded from the Settlement Class may, but need

not, submit comments or objections to the proposed Settlement. Any Class member may object
to the proposed Settlement, entry of Final Order and Judgment approving the settlement, and
Class Counsel's application for fees and expenses by serving a written objection.
18. Any Class member making the objection (an "objector") must sign the objection
personally. An objection must state why the objector objects to the proposed Settlement and
provide the basis to support such position. If an objector intends to appear personally at the
Fairness Hearing, the objector must include with the objection a notice of the objector's intent to
appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed no later than sixty
(60) days from the Notice Date. If counsel is appearing on behalf of more than one Class
Member, counsel must identify each such Class Member and each Class Member must have
complied with the requirements of this Order. These documents must be field with the Clerk of
the Court at the following address:
Clerk of the Court U.S. District Court for the Northern District ofNew York James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207
20. Objections, along with any notices of intent to appear, must also be mailed to Class
Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL
Elmer R. Keach, III, Esquire Law Offices of Elmer Robert Keach, III, PC 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
DEFENSE COUNSEL William J. Greagan, Esquire

Goldberg Segalla LLP 8 Southwoods Boulevard Albany, NY 12211 21. Only Class Members who have filed and served valid and timely notices of objection shall be entitled to be heard at the Fairness Hearing. Any Class Member who does not timely file and serve an objection in writing to the Settlement, entry of Final Judgment, or to Class Counsel's application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise. 22. Persons wishing to be heard at the Fairness Hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are elljoined from proceeding against the Defendants for the claims made in the Complaint. Other Provisions 24. Upon approval of the settlement provided for in this Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement. IT IS SO ORDERED. Dated:

Hon. Gary L. Sharpe United States District Judge

 
 GOLDBERG SEGALLA LLP
Attorneys at Law

Buffalo Rochester B Syracuse • Albany If Manhattan II \\/hite Plains • Long lslund

William 1. Greagan
Direct dial 518.935.4220 wgreagan@goldbergsegalla.com

8 Southwoods Boulevard, Suite 300 Albany, New York 12211
518.463.5400 FAX 518.463.5420 www.goldbergsegalla.com

September 12, 2006

VIA ELECTRONIC FILING
Hon. Gary L. Sharpe United States District Couli Northern District of New York Jmnes T. Foley U.S. Courthouse 445 Broadway, Room 441 Albany, New York 12207

Re:

McDaniel v. County of Schenectady

Case No.: 04-CV-07S7

Our file no.: 12930.0011

Dear Judge Sharpe:
As discussed with Ms. Webster and Mr. Griffin of your office on SepteInber 11 til, the defendants will not oppose the relief sought in the plaintiffs' pending Inotion for prelilninary approval of the settielnent of this class action lawsuit currently returnable on October 5, 2006.

WJG/cbt
cc: Elmer Robert Keach, III, Esq. Beranbaum, Menken & Ben-Asher, LLP The Mason Law Firm, PLLC Cuneo, Waldman & Gilbert LLP

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