Case 3:07-cv-05665-FLW-TJB Document 1 Filed 11/28/2007 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Jose Garcia, Wesley K. Bell, Edward Bizzarro and Richard Wright individually and on behalf of a Class of others similarly situated
Plaintiffs, v.
OCEAN COUNTY, THEODORE J. HUTLER JR. both individually and in his official capacity as the Warden of the Ocean County Correctional Facility SANDRA MUELLER both individually and in her /': official capacity as Chief of Corrections of the Ocean County Correctional Facility,
Defendants.

Civil Action
CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

Plaintiffs, for their Complaint herein, allege the following on information and belief except as to the allegations concerning individual claims, which are asserted upon personal knowledge.
NATURE OF ACTION 1. Plaintiffs Jose Garcia, Wesley K. Bell, Edward Bizzarro and Richard Wright bring this class action individually, and on behalf of, as more particularly defined in paragraph 13 below, a class of all persons who were strip-searched at the Ocean County Correctional Facility (hereinafter OCCF) after being held on child support warrants or charged with non indictable offenses or traffic violations in contravention of their rights against unreasonable searches under the Fourth Amendment of the United States Constitution. 2. Plaintiffs seek monetary damages individually and for each member of the proposed class who have suffered from the wrongful actions of the Defendants described herein; a declaration that the Defendants' policies are unconstitutional; and, an injunction
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precluding the Defendants from continuing to violate the rights of those placed in their custody or detention.
PARTIES 1. Plaintiff, Jose Garcia ("Garcia" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Toms River New Jersey. On or about August 2007 Mr. Garcia was frisked and hand cuffed in his home for a child support warrant. Plaintiff was transported to the Ocean County Correctional Facility. Plaintiff was illegally strip searched upon his admission to OCCF. 2. Plaintiff, Wesley K. Bell ("Bell" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Manahawkin New Jersey. On or about August 10, 2007 Mr. Bell was arrested in court for failing to execute an environmental protection agreement. Plaintiff was illegally strip searched upon his admission to OCCF. 3. Plaintiff, Edward Bizzarro ("Bizzarro" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Manahawkin New Jersey. In or about September 2007 Mr. Bizzarro was arrested for failing to pay child support. Plaintiff was transported to the Ocean County Correctional Facility. Plaintiff was illegally strip searched upon his admission to OCCF. 4. Plaintiff, Richard Wright ("Wright" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Toms River New Jersey. On or about October 1, 2007 Mr. Wright turned himself in on a warrant for child support. Plaintiff was illegally strip searched upon his admission to OCCF. 5. Defendant Ocean County (the "County") is a county government organized and existing under the laws of New Jersey. At all times relevant hereto, the County,
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acting through its Correctional Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Ocean County Correctional Department and was responsible for the appointment, training, supervision and conduct of all Ocean County Correctional Department's personnel, including those working in the Ocean County Correctional Facility. In addition, at all relevant times, the County was responsible for enforcing the rules of the Ocean County Correctional Department and for ensuring that Ocean County Correctional Department's employees obey the Constitution and the laws of the United States and New Jersey.
6. Defendant Theodore J. Hutler Jr. ("Warden Hutler") is the Warden of the Correctional Department and, as such, is a policy maker with respect to the treatment of pretrial and other detainees over which the Correctional Department exercises custodial or other control. Warden Hutler is made a Defendant in this action in both his individual and official capacities.
7. Defendant Sandra Mueller ("Chief Mueller") is the Chief of Corrections of Ocean County and, as such, is a policy maker with respect to the treatment of pretrial and other detainees over which the Correctional Department exercises custodial or other control. Chief Mueller is made a Defendant in this action in both her individual and official capacities.
8. Ocean County will be referred to as the "County Defendant". 9. Both Warden Hutler and Chief Mueller will be referred to as the "Policy Making Defendants".
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action under the provisions of 28
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U.S.C. §§ 1331, 1341 and 1343 because it was 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 United States Constitution and by federal law pursuant to 42 U.S .C. §§1981 and 1983. This Court also has jurisdiction over this action under the provisions of28 U.S.C. §220I, as it was filed to obtain declaratory
relief relative to the Constitutionality of the policies of a local government. 11. Venue is proper under 28 U.S.C. §1391(e)(2) because the events
giving rise to the Plaintiffs' claims and those of proposed class members occurred in this
judicial district.
CLASS ACTION ALLEGATIONS 12. Plaintiffs bring this action pursuant to Rules 23(b)(I), 23(b)(2) and 23(b)(3)
of the Federal Rules of Civil Procedure on behalf of Plaintiffs and a class of similarly
situated individuals who were arrested for misdemeanors or other petty crimes or minor
violations and who were unlawfully strip-searched upon their entry into the Correctional Department.
13. The Class that Plaintiffs seek to represent is defined as:
All persons who have been be placed into custody of the Ocean County Correctional Facility after being charged with non-indictable offenses (such as disorderly persons offenses, traffic infractions and/or civil commitments) and were strip-searched upon their transfer and entry into the Ocean County Correctional Department. The Class period commences on or about November 28, 2005 and extends to the date on which the County Defendant is enjoined from, or otherwise ceases from, enforcing its 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.
14. This action may be 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).
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15. The members ofthe Class are so numerous as to render joinder impracticable. There are, and have been, hundreds and probably thousands of people who have been arrested for misdemeanors, violations, traffic infractions, failing to make payment on outstanding traffic violations, failing to make payment on outstanding fines or other minor non-indictable crimes who were strip-searched under the circumstances described herein.
16. Joinder of all these individuals is impracticable because of the large number of Class members and the fact that Class members are likely dispersed over a large geographic area, with some members, residing outside of Ocean County and this Judicial District. Furthermore, many members of the Class are low-income persons, may not speak English, may not know of their rights and likely would have great difficulty in pursuing their rights individually.
17. Common questions of law and fact exist as to all members of the Class that predominate over any questions that affect only individual members of the Class. The predominant common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants' written and/or de facto policies of strip-searching individuals who were charged with non-indictable charges or violations when transferred to and placed into the custody of the Correctional Department violate the Fourth and Fourteenth Amendments to the United States Constitution and whether such a written and/or de facto policy existed during the Class period.
18. Plaintiffs' claims are typical ofthe claims of the members of the Class. Plaintiffs and all members of the Class have sustained damages arising out of Defendants' course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the Class.
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19. The representative Plaintiffs have the requisite personal interest in the outcome ofthis action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.
20. 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 geographic area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress these constitutional violations. 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.
21. The named Plaintiffs have retained counsel with substantial experience and success in the prosecution of class action and civil rights litigation. Plaintiffs are being represented by Jonathan W. Cuneo, Charles J. LaDuca and Alexandra Warren of Cuneo Gilbert & LaDuca, LLP; Elmer Robert Keach, III, Esquire; Seth Lesser and Fran Rudich of the Locks Law Firm, PLLC and William Riback, Esquire. Plaintiffs counsel have the resources, expertise and experience to successfully prosecute this action against the Defendants. No conflict exists between the Plaintiffs and members of the Class, or between counsel and members of the Class.
22. Upon information and belief, there are no other actions pending to address the
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Defendants' flagrant violation of the civil rights of detainees, even though the Defendants have maintained their illegal strip-search regimen for at least the past several years.
23. This action, in part, seeks declaratory and injunctive relief. As such, 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 non-indictable offenses that were transported to and placed into the custody of the Correctional Department. In short, the County Defendant and the Policy Making Defendant acted on grounds generally applicable to all Class members.
24. In addition to, and in the alternative, Plaintiffs seek certification under Rule 23(b)(3) or seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 25. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Policy Making Defendants in this action and the employees they supervise, from performing strip searches of pre-trial detainees who have been charged with non-indictable offenses and civil commitments unless there is reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 26. Ocean County and the Policy Making Defendants have, nonetheless, instituted a written and/or de facto policy, custom or practice of strip-searching all individuals who enter the custody of the Correctional Facility 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. 27. Further, Ocean County, and the Policy Making Defendants have also instituted a written and/or de facto policy, custom or practice of conducting visual
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inspection of detainees in a state of undress on all individuals who enter the custody of the Correctional Facility, regardless of the individual characteristics or the nature of their charged crime. For purposes of this Complaint, this practice is collectively referred to as "strip-searches. "
28. Ocean County and the Policy Making Defendants know or should know, that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip-searches without particularized, reasonable suspicion
29. The Defendants' written and/or de facto policy, practice and custom mandating blanket strip-searches of pre-trial non-indictable detainees and civil commitment has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
30. Reasonable suspicion to conduct a strip-search may only emanate from the particular circumstances incident to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest. Ocean County and the Policy Making Defendant have promulgated, implemented, enforced, and/or failed to rectify a written and/or defacto policy, practice or custom of strip-searching all individuals placed into the custody of the Ocean County Correction Department without any requirement of reasonable suspicion in violation of the Fourth Amendment to the United States Constitution. This written and/or de facto policy made the strip-searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip-searches.
31. Pursuant to this written and/or de facto policy, each member of the Class,
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including the named Plaintiffs were the victim of a routine strip-search upon their entry into the OCCF. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Stripsearches are conducted for individuals arrested for, among other innocuous offenses such as, unpaid parking tickets, traffic violations, outstanding traffic fines and other nonindictable offenses.
32. As a direct and proximate result of the unlawful strip-search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip-searches - each member of the Class, including the named Plaintiff - has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs 33. Plaintiffs' experiences are representative of the Class. 34. Plaintiff, Jose Garcia ("Garcia" or "Plaintiff") is, and at all times relevant hereto has been, a resident ofthe State of New Jersey domiciled in Toms River New Jersey. On or about August 2007 Mr. Garcia was frisked and hand cuffed in his home for a child support warrant. Plaintiff was transported to the Ocean County Correctional Facility through the Sally Port elevator. Plaintiff was then patted down by another officer and taken to a shower room accompanied by a correctional officer. Mr. Garcia was directed to take his clothes off and turn his socks inside out. The correctional office turned his clothes inside out and directed Plaintiff to lift his testicles. Mr. Garcia was made to turn around, bend over and spread his buttocks. 35. Plaintiff, Wesley K. Bell ("Bell" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Manahawkin New Jersey. On or about August 10,2007 Mr. Bell was brought to the correctional facility for
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civil contempt. Plaintiff was similarly illegally strip searched upon his admission to OCCF.
36. Plaintiff, Edward Bizzarro ("Bizzarro" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Manahawkin New Jersey. In or about September 2007 Mr. Bizzarro was arrested for failing to pay child support. Plaintiff was transported to the Ocean County Correctional Facility. Plaintiff was similarly illegally strip searched upon his admission to OCCF.
37. Plaintiff, Richard Wright ("Wright" or "Plaintiff') is, and at all times relevant hereto has been, a resident of the State of New Jersey domiciled in Toms River New Jersey. On or about October 1,2007 Mr. Wright turned himself in on a warrant for child support. Plaintiff was similarly illegally strip searched upon his admission to OCCF.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION Violation of Constitutional Rights Under Color of State Law --Unreasonable Search and Failure to Implement Municipal Policies To Avoid Constitutional Deprivations Under Color of State Law-38. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 37. 39. 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 pre-trial detainees arrested for non-indictable offenses or violations absent some particularized suspicion that the individual in question has either contraband or weapons.
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40. The actions of all Defendants as detailed above, violated Plaintiffs' and the Class' rights under the United States Constitution. Simply put, it was not objectively reasonable for Correctional Facility personnel to strip-search Plaintiffs and the members of the Class based on their arrests for non-indictable offenses. It was also not objectively reasonable for the Policy Making Defendants to order/direct Correctional Department personnel to conduct such searches or to have a policy or practice permitting such searches.
41. These strip-searches were conducted pursuant to the policy, custom or practice of Ocean County and the Policy Making Defendant. As such, these Defendants are directly liable for the damages of the Class.
42. Upon information and belief, Ocean County and the Policy Making Defendants are responsible for establishing the policies and procedures to be utilized in the operation of the Correctional Department and are responsible for the implementation of the strip-search policy questioned in this lawsuit.
43. Ocean County and the Policy Making Defendants knew that the abovedescribed strip-search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and the members of the Class oftheir Constitutional rights.
44. 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.
45. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs and the Class have been irreparably injured and seek damages, as well as the declaratory and injunctive and relief set out immediately below in the Prayer for Relief.
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DEMAND FOR PUNITIVE DAMAGES 46. The actions of the 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. 47. It is clear that the Policy Making Defendants have no, or little, 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 Ocean County.
DEMAND FOR TRIAL BY JURY 48. The Plaintiffs hereby demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs individually 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 with Plaintiff as Class representative. B. A judgment against all Defendants, jointly and severally on Plaintiff s Cause of Action detailed herein, awarding Compensatory Damages to named Plaintiffs and each member of the proposed Class in an amount to be determined by a Jury and/or the Court on both an individual and a class wide basis. C. A judgment against the Policy Making Defendants, Theodore J. Hutler Jr. and Sandra Mueller on Plaintiffs' Cause of Action for punitive damages in an amount to be determined by a properly charged jury.
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D. A declaratory judgment against Ocean County and the policy making Defendants declaring their policy, practice and custom of strip searching all detainees entering the Correctional Department, regardless of the offense charged or suspicion of contraband, to be unconstitutional and improper. E. A preliminary and permanent injunction enjoining Defendant Ocean County and the Corrections Officers they supervise from continuing to strip search individuals charged with pre-trial non-indictable offenses absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband. F. A monetary award for attorney's fees and the costs of this action, pursuant to 42 U.S.c. § 1988, Fed. R. Civ. P. 23 and the Court's inherent powers. G. Such other and further relief as the Court may deem just and proper.

Respectfully submitted by:

Dated: November 28, 2007 Camden, New Jersey

/s/ William Riback William Riback, Esquire 527 Cooper Street, 2nd Floor Camden, N.J. 08102 856/342-9700
Jonathan W. Cuneo, Esquire Charles J. LaDuca, Esquire Alexandra Warren, Esquire CUNEO GILBERT & LaDUCA, LLP 507 C. Street, N.E. Washington, D.C. 20002 202/789-3960
Elmer Robert Keach, III, Esquire USDC, DNJ Bar Roll Number EK7579 LAW OFFICES OF ELMER ROBERT KEACH, III, PC 1040 Riverfront Center
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Case 3:07-cv-05665-FLW-TJB Document 1 Filed 11/28/2007 Page 14 of 14 P. O. Box 70 Amsterdam, NY 12010 518/434-1718 Seth R. Lesser, Esquire Fran L. Rudich, Esquire
(Motion for Admission To Be Filed)
LOCKS LAW FIRM 457 Haddenfield Road, Suite 500 Cherry Hill, N.J. 08002 856/663-8200
-and110 E. 55th Street, 12th Floor New York, NY 10022 212/838-3333 ATTORNEYS FOR PLAINTIFF AND PROPOSED CLASS
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 [Not for Publication]

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

___________________________________

:

EDWARD BIZZARRO, RICHARD,

:

WRIGHT, and APRIL WEDDING,

:

Individually and on Behalf of a Class of :

Others Similarly Situated,

:

:

Plaintiffs,

:

:

v.

:

:

OCEAN COUNTY, et al.,

:

:

Defendants.

:

___________________________________ :

Civil Action No. 07-5665 (FLW) OPINION

WOLFSON, United States District Judge:

Plaintiffs April Wedding, Richard Wright, and Edward Bizzarro (collectively “Plaintiffs”)

initiated this putative class action to seek redress for allegedly being subjected to unlawful strip

searches as pretrial detainees charged with non-indictable offenses while in the custody of the

Ocean County Correctional Facility (“Ocean County Jail”). The Defendants are Ocean County

Sheriff’s Department, Ocean County Department of Corrections, Theodore J. Hutler, Jr., both

individually and in his official capacity as the Warden of the Ocean County Correctional Facility,

and Sandra Mueller, Chief of Corrections of the Ocean County Jail (collectively “Defendants”).

Essentially, Plaintiffs allege that the members of the proposed class, arrested for non-indictable

offenses, such as failure to pay child support and traffic fines, were illegally and

unconstitutionally required to undress for inspection in violation of their right to privacy under

the United States and New Jersey Constitutions. Presently before the Court is Plaintiffs' Motion

to Certify the Class pursuant to Fed.R.Civ.P. 23(b)(3), or alternatively, 23(b)(2). The parties

appeared before the Court on June 2, 2009 for oral argument and in a conference in chambers reached agreement on several issues. Further, the parties participated in a conference call with the Court on June 9, 2009. Based on the representations and agreements of the parties and for the reasons stated herein, the Court grants Plaintiffs’ Motion, as modified herein.
I. Procedural History On November 28, 2007, Plaintiffs Jose Garcia, Wesley K. Bell, Edward Bizzarro, and
Richard Wright (collectively “Original Plaintiffs”) filed this action against Defendants. On January 11, 2008, Original Plaintiffs filed an Amended Complaint against Defendants. On January 14, 2008, April Wedding was added as a plaintiff. By Order, dated June 5, 2008, Plaintiffs Jose Garcia and Wesley Bell (deceased) were dismissed from the action. Plaintiffs filed their Second Amended Complaint (“Complaint”) against Defendants on September 15, 2008. On October 18, 2008, Plaintiffs filed the instant motion to Certify Class. This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. For the reasons stated herein, the Court grants the motion and certifies the class, as limited by the parties, under 23(b)(3); the Plaintiffs concede that their request for injunctive relief is moot, as Defendants have adopted a written policy with respect to the changing of inmates, that they no longer seek injunctive relief at this juncture, and have agreed to narrow the class period, to beginning on November 28, 2005 and extending to December 28, 2007. The Court directs Plaintiffs to file a Third Amended Complaint consistent with the Court’s ruling, i.e. the class as defined within the time period and reflecting the modified request for relief, within twenty (20) days.
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II. Background A. Facts Relating to Plaintiffs’ Arrests, Detentions, and Alleged Strip Searches 1. April Wedding’s Testimony In August 2007, while driving her car, April Wedding was pulled over for a moving
violation by a Little Egg Harbor police officer. Elmer Robert Keach, III, Aff. (Keach Aff.), Ex. E, April Wedding Dep. (“Wedding Dep.”), July 25, 2008, 5:21-22, 6:14-18. Although Ms. Wedding did not recall why the officer pulled her over, after she provided her licence, registration and insurance card, the officer told her that she had an outstanding warrant for failure to pay a traffic fine of $431. Id. 8:4-20, 12:18-23. The officer arrested Ms. Wedding because she was delinquent in paying a ticket she received for careless driving, N.J.S.A. 39:4-97, which is not an indictable offense. Id. 5:14-6:13. When Ms. Wedding was transported to the Ocean County Jail, she was escorted to the booking desk and gave personal information to the booking officer. After she told the officer that she could not make bail, she was allegedly strip searched.1 Compl. ¶ 8; Wedding Dep. 22:12-14.
A female officer took Ms. Wedding to the shower room located adjacent to the booking desk and semi-closed the curtain – separating this room from the booking area – behind the two of them. Wedding Dep. 16:25-17:11, 18:9-10. The officer directed Ms. Wedding to take off her jewelry, including her earrings, lip ring, and tongue ring. Id. 18:17-19:10. Then, the officer
1New Jersey law defines a strip search as “the removal or rearrangement of clothing for the purpose of visual inspection of the person's undergarments, buttocks, anus, genitals or breasts.” N.J.S.A. § 2A:161A-3. However, this definition is not binding on the Court for the purpose of determining the constitutionality of an alleged strip search. See Florence v. Bd. of Chosen Freeholders of the County of Burlington, No. 05-3619, 2008 WL 800970, at *1, n. 2 (D.N.J. Mar. 20, 2008).
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instructed Ms. Wedding to take off all of her clothes, including her undergarments. Id. 19:6-16. From about three feet away, the officer inspected Ms. Wedding’s clothes and gave her back her underwear, but not her bra, which had a wire in it, and thus, was not permitted inside the facility. Id. 19:17-14. While nude, the officer told Ms. Wedding to turn around, bend over, then squat and cough, and she was also asked to lift her breasts. Id. 19:15-18, 21:1-2. At some point during this search, the officer also checked Ms. Wedding’s mouth. Id. 19:19-25. After Plaintiff complied with all of the officer’s requests, she was permitted to put on her underwear and the prison uniform. Id. 23:17-24:1. The officer never physically touched Ms. Wedding during this changing process, which lasted about five minutes. Id. 21:3-12, 23:12-16.2 Ms. Wedding was held at the Ocean Jail for two days and was released when her mother posted bail for her. Id. 27:21-28:9, 29:9-22, 30:13-31:2. Ms. Wedding also testified that although she had never previously been in a jail cell, she thought she had been detained in a holding room in Little Egg Harbor, Tuckerton, Stafford, and Barnegat based on other traffic violations. Id. 34:7-36:10.
2. Richard Wright’s Testimony On October 1, 2007, Richard Wright (“Mr. Wright”) turned himself in to “detectives” in Toms River for failure to pay child support. Keach Aff., Ex. F, Richard Wright Dep. (“Wright Dep.”), July 25, 2008, 6:18-19, 7:8-11. Mr. Wright testified that the warrant for his arrest, issued on September 12, 2007, stated that he owed $5,129.58. Id. 8:4-10. Mr. Wright was taken to the Ocean County Jail, where he was escorted through the basement sally-port entrance to the booking area. Id. 8:21-23, 9:23-10:12. There he provided information to the booking officer
2Ms. Wedding testified that she was not given or does not remember receiving a delousing agent; it is unclear if she understood the question, but she did state that she “didn’t get any lice stuff or anything else.” Id. 21:7-12, 22:20-23:11.
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and told him that he was planning on posting the $100 bail. Id. 10:24-11:14. Mr. Wright testified that he was not permitted to make a phone call until after he was changed. Id. 12:20-25.
A male officer brought Mr. Wright to “the changing room,” which was adjacent to the booking area and consisted of a shower and a sink area. Id. 13:3-20, 16:12-14. Mr. Wright testified that although the doorway to the changing room had a curtain on it, the curtain remained open during his entire changing process. Id. 13:21-14:3. The officer directed Mr. Wright to remove all of his clothes, including his underwear, id. 14:6-15, and the officer checked his clothes. As directed, Mr. Wright opened his mouth, and lifted his tongue. Id. 14:16-18, 15:1720. The officer instructed Mr. Wright to “lift [his] scrotum sacs,” then “turn around, put [his] hands on the wall and then [he] was told to lift [his] feet in the air, one at a time and then [he] was told to spread his buttocks.” Id. 16:2-3, 15-20. As Mr. Wright complied with all of the officer’s instructions, the officer remained in close proximity, observing him. Id. 15:21-16:1. Thereafter, Mr. Wright was permitted to put on the prison uniform and slippers. Id. 17:14-22.
Then, Mr. Wright was permitted to call his girlfriend, who brought the money to the child support collection office in Toms River the same day. Id. 11:15-12:10, 19:18-20:4. Approximately twelve hours after Mr. Wright’s arrest, he made bail and was released. Id. 20:2221:8. Prior to this arrest, Mr. Wright estimated that he had been in the Ocean County Jail times for offenses, such as failure to pay child support and resisting arrest. Id. 23:21-24:18. Mr. Wright served eleven months in jail in 2005 or 2006 for resisting arrest. Id. 25:17-22, 26:5-6.
3. Edward Bizzarro’s Testimony After work on September 6, 2007, Edward Bizzarro (“Mr. Bizzarro”) was arrested at his home by several Ocean County sheriffs for failure to pay child support. Affirmation of Elmer
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Robert Keach, III, Ex. G, Edward Bizzarro Dep. (“Bizzarro Dep.”), September 23, 2008, 10:2011:7, 29:2-12, 30:8-10. Mr. Bizzarro was taken to the booking area at the Ocean County Jail , id. 16:13-17:6, where he waited on a bench for about a half hour before he was taken to the changing room. Id. 18:11-23. Mr. Bizzarro testified that he was taken to change before he provided his personal information to the booking officer. Id. 18:24-19:11.
Mr. Bizzarro described the changing room as an area separate from the booking area with a shower stall and a curtain. Id. 18:24-19:17. Mr. Bizzarro was directed to stand against the wall, remove all of his clothes, including his underwear, lift his genitals so his “private area” could be checked, then bend over, spread his cheeks, and cough so the officer could check his “anal area” and look up his rectum. Id. 20:21-21:11, 22:6-10, 23:9-12. As Mr. Bizzarro complied with the all of the officer’s requests, the officer inspected him from about four feet away. Id. 21:25-22:5. The officer also instructed Mr. Bizzarro to lift his feet, id. 23:6-7, and open his mouth and the officer stepped closer to look inside. Id. 22:11-19. After the officer checked his clothes, id. 21:12-19, and finished the visual inspection, the officer gave Mr. Bizzarro back his underwear and provided him with a prison uniform to put on as well as a pair of flip-flops. Id. 24:2-12. After he put on the uniform, Mr. Bizzarro was given a property sheet to record the list of items the Ocean County Jail retained. Id. 25:11-15.
Mr. Bizzarro again waited on the bench to be photographed before he was taken to a crowded holding cell. Id. 26:18-28:2. Mr. Bizzarro testified that he was held for a week on that offense before he was released, id. 32:7-16,3 and may have been incarcerated in the Ocean
3Although there is some indication that Judge Francis R. Hodgson signed an Ocean County Superior Court, Probation Division, Child Support, Release Amount Order for Mr. Bizzarro on September 7, 2007 stating the Mr. Bizzarro needed to pay $300 to probation by
6

County Jail 100 times for failure to pay child support. Id. 8:5-13.
B. Evidence in the Record: Ocean County Jail’s Procedures The parties attached several documents and deposition transcripts relating to Defendants’ intake policies and procedures to their moving papers. The Court will briefly summarize some of this evidence as it relates directly to Plaintiffs’ class action allegations. The Ocean County Department of Corrections Policy 9.03 titled “Physical Searches” contains Ocean County’s inmate searching procedures. Affirmation of Elmer Robert Keach, III, Ex. D. Section 9.03-.04 states that “[a] person who has been detained or arrested for commission of an offense other than a crime and who is confined in this facility shall not be subject to a strip search unless there is reasonable suspicion that a weapon, controlled dangerous substance, or contraband will be found.” Further, this section states that “[i]f there is reasonable suspicion, this suspicion must be documented prior to the strip search taking place.” Policy Searches, Section 9.03A. In addition, before the search is conducted, it must be “approved by the Officerin-Charge.” Id. If these criteria are not met, the prisoner should only be visually observed in their undergarments. Id. Similarly, the New Jersey Administrative Code 10A:31-8.4 states that “[a] person who has been detained or arrested for commission of an offense other than a crime and who is confined in an adult correctional facility shall not be subject to a strip search unless there is reasonable suspicion that a weapon, controlled dangerous substance or contraband will be
Monday, September 10, 2007, Bizzarro Dep. 32:19-25, 37:1-10, 38:6-10, there is no such evidence in the current record before the Court. Moreover, even if true, it is not relevant on this motion.
7

found.” In addition, N.J.A.C. 10A:31-8.5(b)(6) states that strip searches may be conducted “whenever the person admitted for a minor offense(s) is known to have a history of violent or assaultive conduct or a previous conviction(s) for a crime.”4
Lieutenant Anthony Spina (“Lt. Spina”), who oversees booking and classification of inmates entering the Ocean County Jail, testified as a representative of Ocean County in accordance with Fed. R. Civ. P. 30(b)(6) in this case. At the time he testified to the Ocean County Jail’s procedures for newly admitted inmates, Lt. Spina had worked for Ocean County in the Department of Corrections for 23 years and 11 months. Lieutenant Anthony Spina Dep. (“Lt. Spina Dep.”), July 18, 2008, 101:16-19. Lt. Spina explained that a newly admitted “prisoner is escorted up to the booking desk by a police officer and their paperwork is presented to one of the booking officers.” Id. 76:15-18. The booking officer makes sure that the prisoner is mentally fit for incarceration, pats down the inmate, removes the restraints, and begins to process that person. Id. 76:20-77:2. According to Lt. Spina, at that point, the prisoner is asked if he or she can post bail and are given an opportunity to do so before the inmate is required to change into the prison uniform, a process known as “changing the inmate”. Id. 77:3-17, 150:24-151:17.
Lt. Spina described the place where inmates change or strip as a changing area with a bench seat on the wall to the left and two showers on the right. Id. 97:2-21. This area is separated from the property room and the booking desk by a curtain. Id. Lt. Spina acknowledged that all pretrial detainees, irrespective of whether the arrestee was charged with an indictable or non-indictable offense, who are changed into the prison uniform, were required to
4According to Defendants, the Ocean County Jail policies mirror the New Jersey Administrative Code.
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completely remove all of their clothing, including undergarments, while an officer had an opportunity to visually observe them. Id. 152:1-153:1. These inmates, regardless of whether reasonable suspicion existed, were brought into the changing area and instructed to remove all of their clothing for inspection. Id. 136:1-12, 139:24-140:20. According to Lt. Spina, an officer directs the inmate to first strip down to his or her undergarments, and then remove his underwear so that the officer may inspect the waistband for concealed objects. Id. 139:7-141:1. Similarly, a female inmate’s brassiere is also inspected. Id. This disrobing procedure was conducted on all detainees without regard to any individual factors, id. 149:20-150:23, such as the inmate’s charge, prior institutional history or criminal history, or whether there was any reason to believe that the inmate was concealing contraband. Id. 152:11-153:1.
Lt. Spina drew a distinction between this visual observation conducted while changing the inmate, which is used for inmates arrested for non-indictable offenses, and more thorough strip searches, which are used when the charge is an indictable offense. Lt. Spina stated that when changing the inmate, the officers were “not instructed to observe them or do an inspection of them, they are instructed to remove their clothing and issue them jail garb. They are not instructed to do any kind of search of their naked body or anything like that.” Id. 144:1-17.5 On the other hand, inmates who are charged with indictable offenses are subjected to a full strip search, including a thorough search and visual inspection of body cavities, namely detainees must open their mouths, lift their arms, and manipulate their genitalia, bend down, squat, and cough for inspection of the genital and anal areas. Id. 98:16-100:5. Some inmates are even asked “to
5Defendants concede that “the corrections officer stays in the room and makes visual observations of the inmate’s body, looking for scars, tattoos, signs of infection or infestation, etc.” while the prisoner stands in his or her undergarments. Df. Opp. at 9.
9

lift the penis separate from the testicles in order to inspect that area” during a thorough strip search. Id. 99:15-100:5.
Lt. Spina admitted that there is no description of a strip search in Ocean County Jail’s policy, that its written policy on strip searches is confusing, and that there has been no formal training, nor outlines or programs in place to train the officers about the requirements of these searches. Id. 100:6-23, 235:7-236:16; Ex. D. Further, the Physical Search policy requires that “any person received from any jurisdiction to be remanded to this institution . . . shall be strip searched before being sent to the housing floor or any designated housing.” Ex. D at 21-22; Lt. Spina Dep. 244:9-17. Interestingly, Lt. Spina confirmed that both the strip searches and “clothing exchanges” occur in the same shower area, which is commonly referred to as the “strip search area or strip search room.” Lt. Spina Dep. 136:14-137:24.
Toward the end of 2007, after hearing that class action lawsuits were filed against other counties in New Jersey, id. 130:16-131:4, Lt. Spina recommended that Ocean County Jail install an opaque “privacy” curtain in one of the shower stalls in the changing area. Id. 121:10-124:23, 126:17-24. This curtain was added to one of the shower stalls by removing the full curtain used for showers and replacing it with a shorter curtain that enabled officers to see prisoners’ heads and everything from their thighs down. Id. 127:3-12. Lt. Spina decided to install the curtain to “get away from the perception that the [non-indictable] inmates were being strip searched,” id. 122:19-123:14, when they were not subject to the full strip search process, such as manipulating their genitals, lifting their breasts, bending down, spreading the cheeks of their butt and
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coughing. Id. 121:11-123:11.6 However, he said that he was not aware of any detainees who had
ever made complaints to corrections officers that they were strip searched. Id. 123:12-24. After
the curtain was installed, pretrial detainees, who were arrested for non-indictable offenses, were
no longer required to completely disrobe in front of a corrections officer of the same sex for
visual observation or inspection of his or her undergarments. Rather, the inmate would be
afforded privacy behind the curtain while the officer could still monitor the inmate during the
clothing change.
In their Opposition, Defendants also included partial testimony from Officers Christopher
Larney, Jessica Clayton, and William Thompson to support their position that inmates arrested for non-indictable offenses were not subjected to full strip searches.7 Moreover, Defendants
contend that the Ocean County Jail did not have a policy that officers direct inmates to remove
their undergarments during the changing process prior to the privacy curtain’s installation in
November of 2007. First, Defendants offer the testimony of Officer Chistopher Larney (“Ofc. Larney”).8 Ofc. Larney testified that inmates entering Ocean County Jail are classified based on
6Even though Lt. Spina testified that he was not sure exactly when the curtain was installed, Id. 121:10-122:15, both parties use November 2007 as the time when the curtain was installed. Thus, for the purposes of this motion, the Court does the same. In an effort to include all potential class members, the parties agree that the class should close on December 28, 2007, approximately one month after the curtain was installed.
7At this stage of the litigation, these factual inconsistencies with Plaintiffs’ and Lt. Spina’s testimony need not be addressed; although Defendants appear to dispute how the changing process was carried out through the testimony from these three officers, on the record before the Court, there is evidence of disrobing. See Part III, infra.
8Mr. Bizzarro was unable to name the changing officer in his deposition; Defendants assert that the name of the changing officer – Officer Christopher Larney – is contained on the inmate’s personal property record. Df. Opp. at 6 n. 5. This issue of whether Officer Larney was Mr. Bizzarro’s changing officer need not be addressed on this motion and will not be further
11

their charge as temporarily confined (“TC”) or non-indictable offenses, and lawfully confined or indictable offenses. R. Scott Clayton Cert., Ex. A, Officer Christopher Larney Dep. (“Ofc. Larney Dep.”), Sept. 23, 2008, 23:25-25:9. Ofc. Larney testified that when he changes a TC inmate, he does not require the inmate to remove all of his clothing; instead, he has the inmate strip down to his underwear, and provides the inmate with a prison uniform. Id. 48:3-49:24, 57:5-24. He also testified that the TC inmates were afforded privacy in November 2007 when a partial curtain was installed and these inmates were permitted to stand behind the curtain when they changed into the prison uniforms. Id. 70:3-9.
Second, Defendants offer the testimony from Officer Jessica Clayton (“Ofc. Clayton”). Ofc. Clayton described the changing area as a room – separated from the booking area by a fulllength curtain in a doorway – that consists of two shower stalls, one used for showers and the other used for changing TC inmates. R. Scott Clayton Cert., Ex. B, Officer Jessica Clayton Dep. (“Ofc. Clayton Dep.”), Sept. 23, 2008, 47:2-48:16. According to Officer Clayton, prior to the installation of the privacy curtain, a female prisoner went behind the main curtain with the changing officer and she had the choice to face the wall (away from the changing officer) and could keep her bra and underwear on, so her private areas were not exposed. Id. 48:25-49:25. However, Ofc. Clayton stated that if the brassiere contained an underwire, it would be withheld or the wire would be removed prior to returning it to the inmate. Id. 16:20-17:13.9 Since the curtain was added, the inmates “go behind a curtain, which is next to the one shower stall, and
addressed by the Court here. 9The Court notes that if the female inmate’s bra had an underwire, then according to Ofc.
Clayton’s testimony, prior to the installation of the privacy curtain, the inmate would have to remove at least some of her undergarments.
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they’re instructed to hand out each piece of clothing. It’s inspected. Whatever they are allowed to keep is given back to them along with a uniform and a pair of shower shoes.” Id. 47:2-10.
Last, Defendants offer excerpts from the testimony of Officer William Thompson (“Ofc. Thompson”). Ofc. Thompson testified that prior to the installation of the curtain in November 2007, he would direct a TC inmate to stand in the middle of the changing room and strip down to his underwear. R. Scott Clayton Cert., Ex. C, Officer William Thompson Dep. (“Ofc. Thompson Dep.”), Sept. 23, 2008, 30:4-14. Since the curtain was installed, Ofc. Thompson directs TC inmates to stand behind the curtain when changing into the prison uniform. Id. 38:3-22.
C. Plaintiffs’ Class Action Allegations Plaintiffs claim that the procedures described in the preceding paragraphs, before the installation of the partial curtain in November 2007, amount to strip searches even if the procedures involve a so-called “visual observation” or even if the written policy facially complied with New Jersey’s strip searching rules. Plaintiffs allege that Defendants “have instituted a written and/or de facto policy, custom, or practice of strip searching all individuals who enter the custody of the Ocean County Jail and are placed into jail clothing, regardless of the nature of their charged crime and absent reasonable suspicion to believe that the individual was concealing a weapon or contraband.” Compl. ¶ 32. Thus, according to Plaintiffs, each member of the class was the “victim of a routine strip search upon their entry into the Ocean County Jail.” Id. ¶ 38. Moreover, Plaintiffs assert that these searches were conducted on individuals arrested for non-indictable offenses without any inquiry into or establishment of reasonable suspicion. Id. Thus, Plaintiffs allege that the intake procedures violate the Fourth Amendment of the United
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States Constitution, which is made applicable to the States through the Fourteenth Amendment, and New Jersey law, N.J.S.A. 10:6-2(c). Id. ¶¶ 25, 30, 55
Plaintiffs now move to certify their class action claim. They define their proposed class as follows:
All persons who have been or will be placed into the custody of the Ocean County Jail after being charged with non-indictable offenses such as disorderly persons offenses, traffic infractions, and/or civil commitments and were strip searched upon their entry into the Ocean County Jail. The class period commences on November 28, 2005 and extends to the date on which the Ocean County Sheriff’s Department and/or the County of Ocean 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. Compl. ¶ 16. Plaintiffs allege that there are hundreds of people – approximately 4,000 in the proposed class – arrested for misdemeanors, traffic warrants, failure to pay child support, and other violations, who were all unconstitutionally strip searched due to Defendants’ policies and procedures. Id. ¶¶ 18, 20. Plaintiffs further allege that Defendants conducted these strip searches absent reasonable suspicion. Id. ¶ 20. Thus, Plaintiffs claim that “Defendants’ written and/or de facto policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the Ocean County Jail is a violation of the Fourth and Fourteenth Amendment to the United States Constitution” and the Constitution of New Jersey. Id. ¶¶ 26, 55. In their Complaint, Plaintiffs seek declaratory and injunctive relief as well as money damages, Id. ¶¶ 24, 59; however, by way of a conference call with the Court on June 9, 2009, Plaintiffs conceded that their request for injunctive relief is moot on this motion due to Defendants’ written policy with
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respect to the changing of inmates and no longer seek such relief.10 Defendants oppose the class certification because: “(1) there is a predominance of
individual issues that precludes class certification; (2) the claims of the class representatives are not necessarily typical of the class, generally; (3) due to their atypical claims, the proposed class representatives cannot adequately represent the interests of the class; (4) the proposed class does not satisfy the requirements under Fed. R. Civ. P. 23(b), and (5) the class definition is overly broad under the circumstances presented in this case.” Df. Opp. at 2. Defendants do not oppose the numerosity or commonality requirements. For the reasons stated herein, the Court grants Plaintiffs’ motion and certifies the class under Rule 23(b)(3).
III. DISCUSSION “To obtain class action certification, plaintiffs must establish that all four requisites of
Rule 23(a) and at least one part of Rule 23(b) are met.” Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994). In considering whether certification is proper, courts refrain from inquiring into the merits of the action and accept the substantive allegations in the complaint as true. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1973). However, courts may need “to analyze the elements of the parties’ substantive claims and review facts revealed in discovery in order to evaluate whether the requirements of Rule 23 have been satisfied,” Wilson v. County of Gloucester, — F. Supp. 2d —, 2009 WL 805179, at *3 (D.N.J. Mar. 30, 2009) (citations omitted), because “the class determination generally involves
10The parties, however, agree to continue to work on the language of Defendants’ newly adopted policy going forward, and the necessity, if any, of a consent order being entered.
15

considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff's cause of action.’” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1977) (citation omitted). When certifying a class, a Court must make factual determinations supporting Rule 23 findings by a preponderance of the evidence and resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits – including disputes touching on elements of the cause of action. In re: Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008). “The interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing class certification.” Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985).
Federal Rule of Civil Procedure 23(a) provides a two-step requirement to certify a class action. First, Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. If the Plaintiffs satisfy Rule 23(a)’s prerequisites referred to as numerosity, commonality, typicality, and adequacy of representation, see Gen. Telephone Co. Of the Sw. v. Falcon, 457 U.S. 147, 156 (1982), then the Court must determine if the class action is maintainable under any of the three provisions in Rule 23(b). As previously discussed, Plaintiffs seek certification under Rule 23(b)(3) or, in the alternative, Rule 23(b)(2). A class may be certified under Rule 23(b)(3) if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only
16

individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). In In re: Hydrogen Peroxide Antitrust Litig., the Third Circuit emphasized that “[t]he twin requirements of Rule 23(b)(3) are known as predominance and superiority.” 552 F.3d at 310. A class may be certified under 23(b)(2) if “[t]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In In re: Hydrogen Peroxide Antitrust Litig., the Third Circuit also stated that “[t]he trial court, well-positioned to decide which facts and legal arguments are most important to each Rule 23 requirement, possesses broad discretion to control proceedings and frame issues for consideration under Rule 23.” 552 F.3d at 310.
The Court will first discuss Defendants’ objections to the proposed class as overly broad, it will next consider each of Rule 23(a)’s elements in turn, and then determine whether a class can be maintained under Rule 23(b).
A. Propriety of the Proposed Class As an initial matter, the Court addresses Defendants' three objections to the proposed class definition as overly broad. First, Defendants argue that the proposed class includes members who were lawfully searched pursuant to a finding of reasonable suspicion and/ or pursuant to 10A:31-8.5(b)(6) because the individual had a history of violent criminal behavior, and/or multiple incarcerations. Df. Opp. at 24. This argument mirrors Defendants’ argument against certification under Rule 23(a) because Plaintiffs claims are not typical of the proposed class, and thus, the Court addresses them herein. See Part II.B.3., infra.
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Second, Defendants contend that although the proposed class commences on November 28, 2005 and extends to the date on which the County of Ocean is enjoined from or otherwise ceases enforcing its allegedly unconstitutional policy and practice of conducting unlawful strip searches, the Ocean County Jail “ceased the alleged unconstitutional conduct in November 2007 when it installed the curtain in the clothing exchange room.” Df. Opp. at 24. Based on the parties’ representations, the Court finds that the installation of this curtain narrows the class period to those Plaintiffs, detained for non-indictable offenses, who were allegedly subjected to suspicionless searches pre-curtain installation. Plaintiffs agree to narrow the class definition to:
All persons who had been placed into the custody of the Ocean County Jail after being charged with non-indictable offenses such as disorderly persons offenses, traffic infractions, and/or civil commitments and were strip searched upon their entry into the Ocean County Jail. The class period commences on November 28, 2005 and extends to December 28, 2007. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. In addition, Plaintiffs concede that they do not seek injunctive relief at this time. The Court directs Plaintiffs to file their Third Amended Complaint consistent with these stipulations within twenty (20) days. Further, as discussed herein, see Part II.B. & C., infra., based on the parties’ papers and these representations, Plaintiffs satisfy the requirements of Rule 23, which is the inquiry on this motion. Third, Defendants assert that the proposed class includes individuals who may not have been subjected to a strip search. To support their position that at least some of the inmates arrested for non-indictable offenses were not subjected to full strip searches, Defendants offer the testimony of Ofcs. Larney, Clayton, and Thompson who claim that prior to the installation of the curtain, they did not require all of the non-indictable inmates to remove all of their clothing and
18

only instructed them to strip down to their undergarments. Thus, Defendants argue that the Court should not have to go through the “grueling process of [determining the manner in which each individual claimant under the proposed class was booked,] deposing each individual, looking up that individual’s records to determine whom the changing officer was, and taking the sworn testimony of that changing officer as a means of checking the veracity of the plaintiff[s’] claims.” Df. Opp. at 25.
When certifying a class, a Court must make factual determinations supporting Rule 23 findings by a preponderance of the evidence and resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits-including disputes touching on elements of the cause of action. In re: Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008). Further, “[t[he interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing class certification.” Eisenberg, 766 F.2d at 785. In this case, notwithstanding the testimony of the named officers, the testimony of Defendants’ Rule 30(b)(6) deponent Lt. Spina states that newly admitted inmates charged with non-indictable offenses were directed to remove all of their clothing during the clothing exchange. Lt. Spina acknowledged that all pretrial detainees, irrespective of whether the arrestee was charged with an indictable or non-indictable offense, were required to completely disrobe while the officer had an opportunity to visually observe them. Lt. Spina Dep. 152:1-153:1. Even though Lt. Spina drew a distinction between this visual observation conducted when changing inmates who were arrested for non-indictable offenses and the more thorough strip searches for inmates charged with an indictable offense, he admitted there is no description of a strip search in Ocean County Jails’s policy, that its written policy on strip searches was confusing, and that there
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was no formal training, nor were there outlines or programs in place to train the officers about the requirements of the searches. Id. 100:6-23, 235:7-236:16; Ex. D.
Furthermore, Defendants admit that Lt. Spina testified that during this changing process, the corrections officer stays in the room and makes visual observations of the inmate’s body, looking for scars, tattoos, signs of infection or infestation, etc. Df. Opp. at 9. In addition, the Physical Search policy requires that “any person received from any jurisdiction to be remanded to this institution . . . shall be strip searched before being sent to the housing floor or any designated housing.” Ex. D at 21-22; Lt. Spina Dep. 244:9-17. Thus, the Court concludes that by a preponderance of the evidence, Plaintiffs have presented evidence that Defendants had a policy or practice of requiring inmates to fully disrobe before receiving their jail garb prior to the installation of the curtain at the end of 2007. Therefore, the Court is not persuaded by Defendants’ objections to the proposed class as overly broad.
B. Rule 23(a) Requirements 1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable[.]” Although no single magic number exists satisfying the numerosity requirement, Florence v. Bd. of Chosen Freeholders of the County of Burlington, No. 05-3619, 2008 WL 800970, at *6 (Mar. 20, 2008), the Third Circuit has previously held that the numerosity requirement will generally be satisfied “if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). In their Complaint, Plaintiffs allege that there are approximately 4,000 people in the
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proposed class. Id. ¶¶ 18, 20. Defendants concede that the number of the potential plaintiffs exceeds forty. Df. Opp. at 11. Even though the size of the class not known at this time, Defendants do not contest the numerosity requirement. Id. Since all non-indictable arrestees are subjected to the same intake processes, which Plaintiffs claim amount to suspicionless strip searches, the proposed class likely includes several hundred if not thousands of individuals. See Florence, 2008 WL 800970, at *7. Because joinder of such a large number of plaintiffs is impracticable, Plaintiffs satisfy the numerosity requirement.
2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class[.]” To satisfy this requirement, the named plaintiffs must show that they “share at least one question of fact or law with the grievances of the prospective class.” Stewart, 275 F.3d at 227 (citation omitted); see also Baby Neal, 43 F.3d at 56 (citation omitted). Commonality does not require that members of the class share identical claims, rather the named plaintiffs’ interests need only be representative of the absent class members. In re Community Bank of N. Va., 418 F.3d 277, 303 (3d Cir. 2005). Further, “an allegation that the defendants’ overall policy injured the plaintiffs satisfies the commonality requirement.” Florence, 2008 WL 800970, at *7 (citation omitted). In this case, Plaintiffs have set forth a legitimate issue involving the same legal questions for all plaintiffs in the proposed class: whether requiring all pretrial detainees to completely disrobe before a same sex corrections officer absent reasonable suspicion upon admittance to the jail constitutes a blanket strip search policy that violates the Fourth Amendment and/or the New Jersey law. Plaintiffs allege that the proposed class members were all subjected to the uniform
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policy of “clothing exchanges,” which they claim involves suspicionless strip searching. Plaintiffs also contend that a common question of law exists as to whether there must be manipulation of the genitals, a spreading fo the buttocks and (for females) nude squatting and coughing for a strip search to be unconstitutional and whether these “clothing exchanges” occurred in lieu of a more intrusive strip search. Defendants do not dispute that the proposed class meets the commonality requirement. All of the proposed class members challenge the constitutionality of these procedures under the United States and New Jersey Constitutions. Thus, all plaintiffs claim that they were injured in substantially the same way by the execution of Defendants’ allegedly unconstitutional policies or practices. Accordingly, commonality is satisfied in this case.
3. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]” “The typicality inquiry centers on whether the interests of the named plaintiffs align with the interests of the absent members.” Stewart, 275 F.3d at 227. It does not mandate that all putative class members share identical claims. See Baby Neal, 43 F.3d at 56. Although the proposed class representative must “possess the same interest and suffer the same injury as the class members,” Falcon, 457 U.S. at 156, “factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.” Barnes v. The Am. Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998). Here, Plaintiffs allege that they were each subjected to the same changing procedures upon admission into the Ocean County Jail, which amounted to an unconstitutional suspicionless
22

strip search. This claim is precisely the same as those of the absent putative class members because all non-indictable arrestees admitted to the facility are subjected to the same intake procedures, which allegedly require arrestees to completely disrobe while Defendants’ officers view their nude bodies – at least prior to the end of 2007. Thus, Plaintiffs’ incentives in relation to this claim therefore seem to align perfectly with those of the rest of the newly defined class beginning November 28, 2005 and extending to December 28, 2007. Accordingly, the Court concludes that the named Plaintiffs satisfy the typicality requirement.
Defendants, however, argue typicality is not satisfied in this case. Defendants do not contend that the named Plaintiffs were not strip searched. Instead, Defendants assert that their defenses against the individual Plaintiffs’ claims are distinct. Defendants note Mr. Wright and Mr. Bizzarro had been incarcerated on several occasions prior to the one that formed the basis of the instant action.11 In addition, Defendants point the Court to N.J.A.C. 10A:31-8.5(b)(6), which states that strip searches may be conducted “whenever the person admitted for a minor offense(s) is known to have a history of violent or assaultive conduct or a previous conviction(s) for a crime.” Thus, Defendants argue that because Mr. Wright and Mr. Bizzarro had both been arrested before, and Mr. Wright testified that he had pled guilty to a resisting arrest charge for which he had been incarcerated for eleven months, their defenses against these defenses may differ from those against Ms. Wedding or other members of the class.12 .
11Mr. Wright had been incarcerated approximately 10 times for misdemeanor offenses, Wright Dep. 23:21-24:4, and Mr. Bizzarro had been incarcerated about 100 times for failure to pay child support. Bizzarro Dep. 8:5-13.
12Although the statute does permit officers to conduct strip searches when the person admitted for a minor offense has previous conviction(s) for a crime, there is no evidence that Defendants knew whether or not either Mr. Wright or Mr. Bizzarro had previous convictions.
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Ms. Wedding, on the other hand, had not been incarcerated in Ocean County Jail prior to the incarceration set forth in this case. Defendants, however, argue that because Ms. Wedding testified that she had lip and tongue piercings when she arrived at the jail, these piercings “may have provided reason to believe that she had other piercings that were hidden by clothing, thus providing reasonable suspicion to perform a strip search.” Df. Opp. at 13 (emphasis added). Defendants also assert that “the issue of whether or not such circumstances provide reasonable suspicion for a search does not affect the issue that the defense to Ms. Wedding’s claims vary [sic] significantly from those of purported class.” Id. The Court disagrees with Defendants’ arguments.
Here, Plaintiffs’ claims clearly arise out of the same practice as the other proposed class members’ claims, specifically, Defendants’ procedures that require non-indictable arrestees to remove all of their clothing in front of an officer. Based upon the totality of the circumstances, the officer must have reasonable suspicion to conduct such searches at the time the search was conducted. See United States v. Whitted, 541 F.3d 480, 489 (3d Cir. 2008) (citing to United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Defendants failed to present any evidence that the officers who conducted each of the named plaintiffs’ searches had reasonable suspicion at the time of the search to conduct a strip search upon changing the inmate.13 Moreover, Defendants cannot create post-hoc rationales to manufacture justifications
Nor has any evidence been presented that either Mr. Wright or Mr. Bizzarro is known to have or have a history of violent or assaultive conduct. These potential defenses are not appropriate to address at this stage of litigation.
13The Court discusses the parties’ arguments regarding whether reasonable suspicion issues predominate over the common issues of law and fact herein. See Part III.C.1., infra.
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for conducting strip searches. The Ocean County Department of Corrections Policy Searches Section 9.03A specifically requires that if there is reasonable suspicion, this suspicion must be documented and approved by the Officer-in-Charge prior to the strip search taking place. In this case, there is no documentation of reasonable suspicion or approval for the strip searches allegedly conducted on the named Plaintiffs, and thus, Defendants’ arguments that Plaintiffs’ claims are not typical of the putative class are unavailing.
Mr. Wright’s, Mr. Bizzarro’s, and Ms. Wedding’s claims are typical of the class as a whole, insofar as each was instructed to completely disrobe and when completely nude was observed by a corrections officer pursuant to the policies and practices pertaining to all newly admitted pretrial detainees at Ocean County Jail. Plaintiffs, and the proposed class members, all suffered the same alleged invasions of privacy, which Plaintiffs claim violate federal and state law. See Wilson, 2009 WL 805179, at *5. Thus, Plaintiffs’ claims are typical of those of the class.
4. Adequacy Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” The Third Circuit had adopted a two-pronged test for determining the adequacy of representation by the named Plaintiffs and their counsel: “(a) the plaintiff's attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975). The burden to prove that the representation is not adequate rests with the party challenging the class’ representation. See Wilson, 2009 WL 805179, at *6 (citations omitted).
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In this case, Defendants do not challenge the adequacy of class counsel. Moreover, after considering the submissions in support of the instant motion, the Court determines that the proposed class counsel is “qualified, experienced, and generally able to conduct the proposed litigation.” Wetzel, 508 F.2d at 247. Defendants, however, do challenge the second-prong: Plaintiffs’ ability to adequately represent the putative class as the named plaintiffs. Defendants argue that “the interests of the class representatives are not necessarily the same as the interests of the class, generally, and may be considered antagonistic to those of the class.” Df. Opp. at 15. Defendants contend that the class representatives’ claims are not typical of the defined class as a whole. Most of Defendants’ arguments are merely recapitulations of those they previously offered in the context of typicality, which the Court previously rejected. For example, Defendants argue that two of the three named Plaintiffs had previously been incarcerated and the remaining named Plaintiff had visible body piercings that were not permitted in the jail. The Court has already determined that these reasons do not warrant denial of class certification.
Defendants, however, contest Plaintiffs’ representation of the putative class with respect to when the class should close. Even though the County denies that any such unconstitutional policy, practice, and custom of conducting strip searches absent reasonable suspicion was ever in effect, Defendants assert that “there is certainly no question today that since November 2007, inmates incarcerated for non-indictable offenses are instructed to stand behind a curtain while changing into the prison uniform.” Df. Mot. at 16. Essentially, Defendants argue the named Plaintiffs do not adequately represent the putative class as defined in the Complaint because at the end of 2007 the jail installed a second curtain behind which the arrestees for non-indictable offenses were directed to change search, and thus, any pretrial detainees after that time were
26

subjected to a different search. Plaintiffs concur; the parties now agree that the class should close on December 28, 2007 and that they will continue to work on the language of the policy now in effect. Therefore, the Court finds that Plaintiffs will adequately represent the class within the defined limited class period.
C. Rule 23(b) Requirements 1. Predominance
In In re: Hydrogen Peroxide Antitrust Litig., The Third Circuit recently discussed predominance:
Predominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, a standard far more demanding than the commonality requirement of Rule 23(a), requiring more than a common claim. Issues common to the class must predominate over individual issues. Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case. If proof of the essential elements of the cause of action requires individual treatment, then class certification is unsuitable. 552 F.3d at 310-11 (internal citations and quotations omitted). The Court must “examine the elements of Plaintiffs’ claim through the prism of Rule 23” to determine whether Plaintiffs satisfy the predominance requirement. Id. at 311. Plaintiffs bear the burden of showing that the elements of their claim are “capable of proof at trial through evidence that is common to the class rather than individual to its members.” Id. at 311-12. “The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish, 441 U.S. 520, 558 (1979). If this case goes to trial, Plaintiffs will have to prove that they were
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searched and that search was unreasonable. See Wilson, 2009 WL 805179, at *7.14 In this case, Plaintiffs assert that the putative class members’ claims involve the same legal question of whether Defendants’ “policy of strip searching every pretrial detainee admitted to [Ocean County Jail is] constitutional where these detainees are made to disrobe in the presence of a correctional officer, without considering the crime charged or the circumstances of arrest.” Pl. Mot. at 15-16. Plaintiffs also state that the proposed class members share the same factual question of whether “such practices exist[ed] during the class period.” This Court, like many others, finds that Plaintiffs’ challenge to Defendants’ alleged policy or practice of using intake procedures for non-indictable arrestees, which are tantamount to suspicionless strip searches, turns on generalized, not individualized, proof and thus, common issues predominate. See, e.g., Wilson, 2009 WL 805179, at *7; Florence, 2008 WL 800970, at *12; Johnson v. District of Columbia, No. 02-2364, 2008 WL 344739, at *25-27 (D.D.C. Feb. 8, 2008).
Here, Defendants admit that the named class representatives were all arrested and charged with non-indictable offenses. At issue in this lawsuit is whether Defendants’ blanket policies and practices of requiring inmates to strip their clothing in front of an officer violate federal and/ or state law. The manner in which the inmates were changed is basically the same in each instance because the observation is done pursuant to the blanket policy and practices implements by Defendants. Thus, “[w]hether those policies and practices violated class members’ state or federal rights is also subject to common determination insofar as the asserted invasion of privacy is the same: the class members’ privacy interest in keeping private their nude body and
14Plaintiffs must also prove that Defendants are state actors for purposes of § 1983 and the New Jersey Civil Rights Act, however, this does not appear to be disputed in this case.
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maintaining their personal dignity.” Wilson, 2009 WL 805179, at *8 (citations omitted).
Defendants, however, argue that individual issues predominate, here because there are
significant differences between each of Plaintiffs’ cases and those of the proposed class. First, as
previously addressed by the Court, Defendants claim that there was reason to strip search both
Mr. Wright and Mr. Bizzarro pursuant to N.J.A.C. 10A:31-8.5(b)(6), and there was reasonable
suspicion to strip search Ms. Wedding based on her piercings. See Part III.B.3., supra.
Defendants argue that the Court would have to investigate the criminal records of each class member to determine whether or not the search was proper under N.J.A.C. 10A:31-8.5(b)(6),15
and also conduct separate inquiries to determine whether reasonable suspicion existed in each
case. These arguments are similar to the ones raised by the defendants and previously rejected by
the courts in Wilson and Florence. Essentially, Defendants, here, argue that liability will turn on
whether particular searches of individual arrestees were constitutionally justified.
Plaintiffs argue that even if reasonable suspicion existed, and Plaintiffs do not concede it
did, these issues do not predominate over the common issues of law and fact. Plaintiffs argue
that if such issues did predominate, then strip search cases could never be certified as class
actions. As discussed herein, based on the record, it appears that all non-indictable arrestees at
the Ocean County Jail are subjected to the same policies and procedures upon admittance to the
15Plaintiffs argue that the New Jersey Administrative Code procedure could itself be unconstitutional. Pl. Reply at 10 n. 6. For support that the statute and code provisions could be unconstitutional, Plaintiffs cite to Ernst v. Fort Lee, 739 F. Supp. 220, 225 (D.N.J. 1990), finding that the “provisions of the Fort Lee operations manual, and those sections of the Strip Search Act upon which it is based, do not pass muster under the Constitution to the extent that they permit the indiscriminate strip search of an arrestee on a minor offense without requiring reasonable suspicion that the arrestee is concealing a weapon or harboring contraband or drugs.” Id. However, although Plaintiffs challenge Ocean County Jail’s generalized policies, they correctly assert that this issue is not before the Court on this motion.
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facility. Like in Florence, the Court “disagrees with the notion that liability will turn on individual questions relating to the justification for strip searches of particular arrestees. Rather, liability will seemingly boil down to whether the intake procedures, which require Defendants’ officers to view the nude bodies of non-indictable arrestees, are tantamount to strip searches.” 2008 WL 800970, at *13. This Court, like others, must reject Defendants’ arguments – that liability turns on whether particular searches of particular arrestees where constitutionally justified – and certify this class action lawsuit involving blanket strip search policies. See Id. at *12; Johnson v. District of Columbia, No. 02-2364, 2008 WL 344739, at *25-27 (D.D.C. Feb. 8, 2008). Only generalized proofs are required to prove Plaintiffs’ claims here. See Florence, 2008 WL 800970, at *13; Johnson, 2008 WL 344739, at *25-27.
“It is not at all clear that individualized reasonable suspicion has any significant role to play in this case, at least with respect to liability, because . . . the policies and practices at issue apply without regard to individualized reasonable suspicion . . . [and] [m]ore importantly . . . Plaintiffs assert a facial attack on the [Defendants’] policies and practices” of blanket strip searches absent reasonable suspicion.” Wilson, 2009 WL 805179, at *8. “Thus, if the policy is unconstitutional as to any member of the class, Plaintiffs will be entitled to at least some form of relief, even if the policies and practices, as applied, are determined not to violate the constitutional rights of some of the class members.” Id.16 Therefore, the Court finds Defendants’ arguments that individual determinations of reasonable suspicion predominate the common issues to be litigated on a class-wide basis unpersuasive. See Id.
16Indeed, it can be determined if any class members were strip searched pursuant to the reasonable suspicion exception by reviewing documentation which must be filed in these circumstances. See Policy Searches, Section 9.03A.
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Second, Defendants assert that individual damage issues predominate because the alleged
individual damages sustained by the named Plaintiffs differ. Defendants argue that the Court
would need to conduct separate inquiries (or mini-trials) regarding damages for each named
Plaintiff and each putative class member because each will have to present his own proof of
damages depending on the scope of the illegal search he allegedly suffered, the number of
previous incarcerations, and the number of times he has been incarcerated during the class
period.17 While some members of the putative class may have suffered more invasive searches,
and would therefore be entitled to greater damages than others, the Court does not find this
argument persuasive. The Third Circuit has held that courts have “commonly recognized that the
necessity for calculation of damages on an individual basis should not preclude class
determination when the common issues which determine liability predominate.” Bogosian v.
Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir. 1977). Moreover, “[c]ourts routinely find
predominance satisfied in class action strip search cases notwithstanding the possibility that an
individualized calculation of damages may be necessary.” Wilson, 2009 WL 805179, at *8
(quoting Florence, 2008 WL 800970, at *13 (citing cases)). Thus, individual damage issues do
17Defendants cite to Barabin v. Aramark Corp., No. 02-8057, 2003 WL 355417 (3d Cir. Jan. 24, 2003) for support that this Court should find that individual damage claims would predominate over the commons issues. In Barabin, however, the district court found and the Third Circuit affirmed that predominance was not satisfied because “it is clear from the complaint that while all of the plaintiffs aver that they were ‘subjected to frequent harassment and unjustified disciplinary sanctions by Caucasian supervisors not imposed on similarly situated Caucasian employees,’ the circumstances under which those acts of discrimination were committed and the resultant injuries are unique to each individual plaintiff. The plaintiffs' individual claims for damages would therefore require individualized evaluations and findings of the facts and defenses.” Id. at *7-8. Barabin differs from the instant case, where Plaintiffs complain of Defendants’ uniform or de facto policy of strip searching inmates, which does provide for common issue predominance. See, e.g., Wilson, 2009 WL 805179, at *8 (citing Florence, 2008 WL 800970, at *13).
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not predominate here. Accordingly, the Court finds that common issues predominate in this case. 2. Superiority
Here, Defendants do not argue that a class action would not be the superior method of adjudicating Plaintiffs’ claims. Rule 23(b)(3) provides a non-exhaustive list of several factors to help determine whether a class action is the superior method of adjudication:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). In this case, all four factors favor class certification. For the following reasons, the Court concludes that a class action is superior than litigation by individual class members. Plaintiffs focus on the first factor to support their position that a class action is the superior method of proceeding with their claims. “It is generally recognized that class certification is preferred where the recovery being sought by each of the plaintiffs is not sufficiently large to render individualized litigation a realistic possibility.’” Florence, 2008 WL 800970, at *14 (internal quotations and citations omitted). Because recovery by each putative class member would likely be small, they have little incentive to pursue their individual claims against Defendants for their alleged unconstitutional practices. Two other courts in this district have reached the same conclusion in similar “strip
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search” cases. See Wilson, 2009 WL 805179, at *9 (“Given the relatively small economic stake that any one class member has in this case, the Court concludes that the first (23(b)(3)) factor favors class treatment.”) (quoting Florence, 2008 WL 800970, at *14). Similarly, the Court finds that due to the nature of Plaintiffs’ claims, most of the proposed class members would not independently assert their claims.
Second, the parties have not identified, nor is the Court aware of, any other strip search litigation involving the Ocean County Jail policies and procedures at issue here. Thus, the second factor also favors class certification. The third factor favors class certification because it is generally “desirable to litigate similar, related claims in one forum.” Florence, 2008 WL 800970, at *14 (citation omitted). Here, the Court has determined that common issues of law and fact predominate this litigation, and therefore, judicial interests of economy and efficiency also weigh in favor of a class action. Moreover, “the class action vehicle is particularly suitable when, as here, Plaintiffs seek institutional reform.” Wilson, 2009 WL 805179, at *10. Lastly, with respect to the fourth superiority factor, the Court determines that there do not appear to be any difficulties in managing this case. However, to the extent that any do exist, the Court has adequately remedied them by certifying the liability and damages issues separately. See Part III.D., infra. Therefore, the fourth factor also supports Plaintiffs’ contention that the class action is the superior method of litigation here. Accordingly, the Court finds that superiority is met in this case, and for the foregoing reasons, the Court will certify the
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damages portion of Plaintiffs’ suit under Rule 23(b)(3).18
D. Appointment of Class Counsel The Court must appoint class counsel pursuant to Rule 23(g)(1). As discussed herein, the Court finds that Plaintiffs’ counsel is “qualified, experienced, and generally able to conduct the proposed litigation.” Wetzel, 508 F.2d at 247. Accordingly, the Court will therefore appoint them as class counsel.
IV. Conclusion For the reasons stated herein, the Court grants the motion and certify the class
now defined as between November 28, 2005 through December 28, 2007 in which Plaintiffs seek compensatory and punitive damages under Rule 23(b)(3). The Court directs Plaintiffs to file a Third Amended Complaint consistent with the Court’s ruling, i.e. reflecting the modified time period of the class and requested relief, within twenty (20) days. The Court will issue an appropriate Order in accordance with Fed. R. Civ. P. 23(c) and (g).
18In the alternative, Plaintiffs seek certification under Rule 23(b)(2), which is usually satisfied in actions where Plaintiffs primarily seek injunctive relief. Although Plaintiffs sought injunctive relief in their Complaint, Plaintiffs concede that this request is not being pursued at this time because Defendants have adopted a written policy with respect to the changing of inmates and they only pursue monetary damages here. Because Plaintiffs no longer seek injunctive relief, the Court need not address the parties’ arguments further in this connection.
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Dated: June 9, 2009

/s/ Freda L. Wolfson The Honorable Freda L. Wolfson United States District Judge

35

 
 Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 1 of 16 PageID: 682

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

______________________________

:

EDWARD BIZZARRO, RICHARD :

Civil Action No. 3:07-CV-05665

WRIGHT, and APRIL WEDDING, :

individually and on behalf of a Class :

of others similarly situated,

:

:

(FLW-TJB)

Plaintiffs,

:

:

THIRD AMENDED

- vs -

:

CLASS ACTION COMPLAINT

:

OCEAN COUNTY, THEODORE J. :

HUTLER, JR., both individually and :

in his official capacity as Warden of :

the Ocean County Jail, and

:

SANDRA MUELLER, both

:

individually and in her official

:

as Chief of Corrections of the Ocean :

County Department of Corrections, :

:

Defendants.

:

_____________________________ :

INTRODUCTION 1. This is a class action lawsuit brought to redress the deprivation by Defendants of rights secured to the Plaintiffs and proposed Class by the United States Constitution, the laws of the United States of America and the laws of the State of New Jersey. For at least the past two years prior to the date of the commencement of this litigation, the Ocean County Sheriff's Department and Ocean County Department of Corrections have had a policy of strip-searching all individuals who enter the Ocean 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 Ocean County Sheriff's Department and Ocean County Department of Corrections, and was promulgated by senior Department officials, specifically. Theodore J.

1

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 2 of 16 PageID: 683
Hutler, Jr., Warden of the Ocean County Correctional Facility, and Sandra Mueller, Chief of Corrections of the Ocean County Correctional Facility
2. It has been well established in this judicial circuit for many years that individuals charged with misdemeanors or minor violations cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In short, the policy of Ocean County and the Ocean County Sheriff's Department to force those charged with minor crimes to undergo the indignities of a strip search upon entry into the Ocean County Jail was clearly illegal.
3. Edward Bizzarro, Richard Wright, and April Wedding (together, “Plaintiffs”) bring this action on behalf of themselves, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. Plaintiffs were charged with misdemeanor and violation offenses, and subjected to strip searches, in violation of their rights against unreasonable searches under the Fourth Amendment of the United States Constitution. Plaintiffs seek monetary damages for themselves and each member of the proposed class, and a declaration that the Sheriff's Department’s and Correction’s Department policies were unconstitutional. With the foregoing as background, Plaintiffs Edward Bizzarro, Richard Wright, and April Wedding complain as follows:1
1 Plaintiffs file this Third Amended Complaint pursuant to the Court’s direction contained in its June 9, 2009 opinion certifying and ordering the certification of the Class in this action under Federal Rule of Civil Procedure 23 and ordering the filing of this complaint deleting claims for injunctive relief. Accordingly, Plaintiffs are also not setting forth a claim for certification under Rule 23(b)(2) but reserve the right to re-amend or seek leave to re-amend to do so should, subsequently, the Court’s June 9, 2009 opinion be reversed or superseded or the factual predicates for that opinion be altered.
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JURISDICTION 4. This Court has jurisdiction over this action under the provisions of 28 U.S.C. § 1331, 1341 & 1343 because it is filed to obtain compensatory damages and punitive damages, 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, inasmuch as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. Supplemental jurisdiction exists over Plaintiffs’ pendent state law claim pursuant to 28 U.S.C. §§ 1367(a) because Plaintiffs’ state law claim is so related to the federal claims within such original jurisdiction that it forms part of the same case or controversy as do the federal claims. 5. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES 6. Plaintiff Edward Bizzarro (“Bizzarro”) resides in Manahawkin, New Jersey. In or about September of 2007, Bizzarro was arrested for failing to pay child support and transported to the Ocean County Jail where he was strip searched upon admission. 7. Plaintiff Richard Wright (“Wright”) resides in Toms River, New Jersey. On or about October 1, 2007, Wright turned himself in on a warrant for child support. Wright was strip searched upon his admission to the Ocean County Jail. 8. Plaintiff April Wedding (“Wedding”) resides in Little Egg Harbor, New Jersey. In or about August of 2007, Wedding was arrested for late payment of a traffic fine and was strip searched upon her admission to the Ocean County Jail.
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9. Defendant County of Ocean (the “County”) is a county governmental entity organized and existing under the laws of the State of New. Jersey. At all times relevant hereto, the County, acting through its Sheriffs Department and Department of Corrections, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Ocean County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the Ocean County Jail. In addition, at all relevant times, the County was responsible for enforcing the rules of the Ocean County Jail, and for ensuring that Sheriff’s Department and Department of Corrections’ personnel employed in the Jail obey the Constitution and laws of the United States and of the State of New Jersey.
10. The Ocean 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 Jersey. Although not a legal entity for the purposes of this 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 Ocean County Jail (“OCJ”). At all times relevant hereto, Defendant Sheriff's Department, together with the County of Ocean, was responsible for the polices, practices, supervision, implementation and conduct of all matters pertaining to the OCJ, and was responsible for the appointment, training, supervision and conduct of all Sheriff's Department personnel, including those working in the OCJ. In addition, at all times relevant hereto, Defendant Sheriff's Department, together with the County of Ocean, was responsible for enforcing the rules of the Ocean County Jail, and for ensuring that Sheriff's Department personnel employed in the OCJ obeyed the Constitution and laws of the United States and of the State of New Jersey.
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11. Defendant Ocean County Department of Corrections (the "Jail" or "OCDOC") is a county governmental organization and exists under the laws of the State of New Jersey. Although not a defendant for purposes of this litigation, the Department is listed as a party for the purposes of identification. At all times relevant hereto, the County, acting through its Warden and the OCDOC, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Ocean County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff's Department personnel, including those working in the Ocean County Jail. In addition, at all relevant times, the County was responsible for enforcing the rules of the Ocean County Jail, and for ensuring that Sheriffs Department and OCDOC personnel employed in the Jail obey the Constitution and laws of the United States and of the State of New Jersey.
12. Defendant Theodore J. Hutler, Jr. ("Warden Hutler") is the duly appointed Warden of the Ocean County Department of Corrections, and, as such, was a policy maker with respect to the treatment of pre-trial and other detainees over which the OCDOC exercises custodial or other control. Warden Tyler is made a Defendant in this action in both his individual and official capacities.
13. Defendant Sandra Mueller (" Chief Mueller") is the Chief of Corrections of Ocean County and, as such, was a policy maker with respect to the treatment of pre-trial and other detainees over which the OCDOC exercises custodial or other control. Chief Mueller is made a Defendant in this action in both her individual and official capacities.
14. Collectively, Warden Hutler and Chief Mueller will be referred to as the “Policy Making Defendants.”
CLASS ACTION ALLEGATIONS
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15. Plaintiffs brings this action as a class action pursuant to Rules 23(a) and (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 (disorderly persons offenses) or other nonindictable offenses and were strip searched upon their entry into the Ocean County Jail.
16. 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 Ocean County Jail after being charged with non-indictable offenses such as disorderly persons offenses, traffic infractions, and/or civil commitments and were strip searched upon their entry into the Ocean County Jail. The class period commences on November 28, 2005 and ends on December 28, 2007.. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
17. 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).
18. The members of the class are so numerous as to render joinder impracticable. There are hundreds of people arrested for misdemeanors, traffic warrants, child support and other violations which do not support probable cause to search, who are placed into the custody of the Ocean 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 4,000 individuals, some of whom have had their civil rights violated on more than one occasion.
19. 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 Ocean County and this Judicial District. Furthermore, many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
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20. 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 Ocean County Jail, and all were illegally strip searched in violation of the established law in this judicial circuit.
21. 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.
22. 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.
23. Plaintiffs have retained counsel who have substantial experience and success in the prosecution of class action and civil rights litigation. Counsel for Plaintiffs know of no conflicts among members of the class, or between counsel and members of the class.
24. Plaintiffs seek certification under Rule 23(b)(3). 25. 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 Ocean 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.
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26. 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.
27. 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 class period.
28. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 29. 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 (disorderly persons offenses) other minor crimes, traffic offenses, warrants for child support, or other nonindictable offenses, unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband.
8

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30. In turn, under New Jersey law, specifically N.J.S.A. 10:6-2(c), any person who is deprived of substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States or by the Constitution or laws of the State of New Jersey has a claim under State law.
31. Upon information and belief, the County of Ocean, the Ocean County Sheriffs Department, the Ocean County Department of Corrections, 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 Ocean 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 Ocean, the Ocean County Sheriff's Department, the Ocean County Department of Corrections, 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 Ocean 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 Ocean, the Ocean County Sheriff's Department, the Ocean County Department of Corrections, and the Policy Making Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. Upon information and belief, the Ocean County's written policy was based on the policy promulgated by the Ocean County Sheriffs Department and/or the Ocean County Department of Corrections.
9

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 10 of 16 PageID: 691
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 Ocean, the Ocean County Sheriff's Department, the Ocean County Department of Corrections, 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 Ocean 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 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 Ocean 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 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
10

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 11 of 16 PageID: 692
class including every named Plaintiff — has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs 39. Plaintiff Edward Bizzarro was arrested for failing to pay child support. He was transported to the Ocean County Jail and was strip searched upon admission. 40. Plaintiff Richard Wright turned himself in on a warrant for child support and was similarly strip searched upon his admission to the Ocean County Jail. 41. Plaintiff April Wedding was arrested for late payment of a traffic fine and was similarly strip searched upon her admission to the Ocean County Jail. 42. Bizzarro, Wright and Wedding were strip searched according to the policy and practice of the Ocean County Jail, without reasonable suspicion that they were carrying contraband. 43. As a direct and proximate result of the unlawful strip searches conducted pursuant to County and Sheriff's Department policy, practice and custom, Plaintiffs have suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law —Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivation Under Color of State Law— 44. Plaintiffs incorporate by reference and reallege each and every allegation stated in the preceding paragraphs, as if fully set forth herein. 45. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip
11

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 12 of 16 PageID: 693
searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.
46. The actions of Defendants detailed above violated Plaintiffs’ rights under the United States Constitution. Simply put, it was not objectively reasonable for Ocean County Corrections Officers to strip search Plaintiffs and class members based on their arrests for nonindictable/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct Ocean County Corrections Officers to conduct such searches.
47. These strip searches were conducted pursuant to the policy, custom or practice of the County of Ocean, Ocean County Sheriff's Department, and the Ocean County Department of Corrections. As such, the County of Ocean is directly liable for the damages of the named Plaintiffs and members of the class.
48. Upon information and belief, the Policy Making Defendants are responsible for establishing the policies and procedures to be utilized in the operation of the Ocean County Jail, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, the Policy Making Defendants are each individually responsible for the damages of the named Plaintiffs and members of the class.
49. The Policy Making Defendants knew that the Ocean County Jail’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.
50. 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.
51. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs and the class have been injured and are entitled to the relief set forth below.
12

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 13 of 16 PageID: 694
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS Violation of Statutory Rights Under the New Jersey Civil Rights Act
—Deprivation of Substantive Due Process Rights, Immunities, or Privileges under the New Jersey Constitution—
52. Plaintiffs incorporate by reference and reallege each and every allegation stated in the preceding paragraphs, as though fully set forth herein.
53. N.J.S.A. 10:6-2(c) provides a right of action for any citizen who is deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States or by the Constitution or laws of the State of New Jersey, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law.
54. The actions of the Defendants as detailed above violated Plaintiffs’ and the class’s rights under the United States and New Jersey Constitutions. It was neither objectively reasonable nor constitutional for the Corrections Division personnel to strip-search Plaintiffs and all the members of the class based on their arrests for non-indictable offenses. It was neither objectively reasonable nor constitutional for the Sheriff’s Department personnel to conduct such search or to have a policy or practice permitting such searches.
55. These strip-searches were conducted pursuant to the policy, custom or practice of Ocean County. As such, the Defendants are directly liable for the damages of the class.
56. Upon information and belief, Ocean County is responsible for establishing the policies and procedures to be utilized in the operation of the Corrections Division and are responsible for the implementation of the strip-search policy questioned in this lawsuit.
13

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 14 of 16 PageID: 695
57. Ocean County knew that the above described strip-search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and the members of the class of their Statutory rights.
58. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs and the class have been irreparably injured and seek damages, as well as the declaratory relief set out immediately below in the Prayer for Relief.
DEMAND FOR PUNITIVE DAMAGES 59. The actions of the Policy Making Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search policy even though they know for a fact that their actions are unconstitutional. 60. It is clear that the Policy Making Defendants, the County of Ocean, the Ocean County Sheriff's Department, and the Ocean County Department of Corrections have little or 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 Ocean County.
DEMAND FOR TRIAL BY JURY 61. The Plaintiffs hereby demand a trial by jury.
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Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 15 of 16 PageID: 696

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Edward Bizzarro, Richard Wright, and April Wedding, on behalf of themselves and on behalf of a class of others similarly situated, request that this Honorable Court grant 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’ claims detailed

herein, awarding compensatory damages and punitive damages to Plaintiffs and each

member of the proposed class in an amount to be determined by a jury and/or this Court

on an individual and/or a class wide basis.

C. A judgment against each named Defendant, individually, awarding compensatory

damages and punitive damages to Plaintiffs and each member of the proposed class in

amount to be determined by a jury and/or this court on an individual and/or a class wide

basis.

D. A declaratory judgment against all Defendants declaring the County of Ocean and the

Ocean County Sheriffs Department's policy, practice and custom of strip and visual

cavity searching all detainees entering the Ocean County Jail, regardless of the crime

charged or suspicion of contraband, to be unconstitutional and improper.

E. A monetary award for attorney's fees and the costs of this action, pursuant to 42 U.S.C. §

1988, N.J.S.A. 10:6-2, and Fed. R. Civ. P. 23.

F. Such other and further relief as the Court may deem to be determined proper.

Dated: June 29, 2009

Respectfully submitted,

/s/ Seth R. Lesser ___________________________________

15

Case 3:07-cv-05665-FLW-TJB Document 44 Filed 06/29/09 Page 16 of 16 PageID: 697

Seth R. Lesser Fran Rudich KLAFTER OLSEN & LESSER LLP 132 Haddon Avenue Haddonfield, NJ 08033 Telephone: 856-857-1127 -andTwo International Place Rye Brook, New York 10573 Telephone: 914-934-9200 Telecopier: 914-934-9220

Charles LaDuca

Alexandra C. Warren

CUNEO GILBERT & LADUCA, LLP

507 C Street, NE

Washington, DC 20002

Telephone:

202-789-3960

Telecopier:

202-789-1813

William A. Riback

William Riback, LLC

132 Haddon Avenue

Haddonfield, NJ 08033

Telephone:

856-857-0008

Telecopier:

856-857-0028

Elmer Robert Keach, III

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

ATTORNEYS FOR PLAINTIFFS AND THE CLASS

16

Case 3:07-cv-05665-FLW-TJB Document 44-1 Filed 06/29/09 Page 1 of 1 PageID: 698
CERTIFICATE OF SERVICE I hereby certify that on June 29, 2009, I electronically filed the foregoing Third Amended Class Action Complaint with the Clerk of the District Court using the CM/ECF system on the parties in said action, via ECF by electronically filing, as set forth below:
Robert Scott Clayton Steven M. Horn BERRY, SAHRADNIK, KOTZAS & BENSON, PC 212 Hooper Avenue P.O. Box 757 Toms River, New Jersey 08754-0757 Attorneys for Defendants
____/s/ Seth R. Lesser____ Seth R. Lesser

 
 NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

___________________________________

JOSE GARCIA et al.,

:

Plaintiffs,

:

Civil Action No. 07-5665 (FLW)

v. OCEAN COUNTY, et al.,

: OPINION
: :

Defendants.

:

___________________________________

WOLFSON, United States District Judge:

Presently before the Court is a motion by Plaintiffs April Wedding, Richard Wright, Edward Bizzarro and the Certified Class (collectively “Plaintiffs”) to reopen this case which had been administratively terminated and Lift the Stay of Proceedings in the above-captioned matter. The instant motion arises out of a class action initiated by Plaintiffs to seek redress after allegedly being subjected to unlawful strip searches as pretrial detainees charged with non-indictable offenses while in the custody of the Ocean County Correctional Facility (“Ocean County Jail”). In this motion, Plaintiffs argue that the stay entered by this Court pending the Third Circuit’s decision in the unrelated matter of Florence v. Board of Chosen Freeholders of the County of Burlington, et al., Civ. A. No. 05-3619, should be lifted because: (1) the Third Circuit’s decision in Florence only addressed the constitutionality of strip searches and did not address the constitutionality of visual body cavity searches; and (2) Plaintiffs additionally set forth a claim

1

under the New Jersey Civil Rights Act. For the reasons set forth below, Plaintiff’s Motion is DENIED.1 I. BACKGROUND AND PROCEDURAL HISTORY
Because this matter has a significant procedural history, the Court will only recount facts relevant to the instant motion. As discussed above, Plaintiffs initiated a class action alleging that after being arrested for non-indictable offenses, such as failure to pay child support and traffic fines, the members of the class were illegally and unconstitutionally required to undress for inspection by Defendants in violation of their right to privacy under the United States and New Jersey Constitutions. Specifically and in relevant part, Plaintiffs allege that while being held in Ocean County Jail, they were subjected to the facility’s strip search policy, including being forced to undergo “visual body cavity searches (visual inspection of the vaginal and rectal cavities).” Third Amended Complaint ¶ 32. By Order dated June 9, 2009, this Court certified the Class pursuant to Fed. R. Civ. P. 23(b)(3).
Thereafter, in November 2009, this Court granted a motion by Defendants to Stay the Proceedings pending the outcome of the Third Circuit’s decision in Florence v. Board of Chosen Freeholders of the County of Burlington. Like this case, the Florence case is a class action in which the plaintiffs allege that members of the class were arrested for non-indictable offenses and were subject to strip searches in violation of their federal and State constitutional rights. On September 21, 2010, the Third Circuit issued a decision in Florence upholding, as constitutional, blanket strip searches of non-indictable pretrial detainees. 621 F.3d 296 (3d Cir. 2010). The
1The Court notes that it reaches the same conclusion in Takacs v. Middlesex County, et. al., Civ. No. 08-694, and that a separate opinion is being entered in that case.
2

Florence decision reversed the District Court and controverted decisions in seven sister Circuit Courts.
Following the Third Circuit’s decision, on January 19, 2011, the plaintiff in Florence filed a Petition for A Writ of Certiorari with the United States Supreme Court (“Petition”). The Supreme Court granted the Petition on April 4, 2011. Despite the Supreme Court’s acceptance of the Petition, Plaintiffs ask this Court to lift the stay entered in this matter in 2009. II. DISCUSSION
It is well-established that a District Court maintains “broad power to stay proceedings.” Bechtel Corp., v. Local 215 Laborers’ International Union of North America, 544 F.2d 1207, 1215 (3d Cir. 1976). The Third Circuit has explained that “ the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Id. (quoting Landis v. North American Co., 299 U.S. 248, 254-55 (1936)). Moreover, “in the exercise of its sound discretion, a court may hold one lawsuit in abeyance to abide the outcome of another which may substantially affect it or be dispositive of the issues.” Bechtel, 544 F.2d at 1215.
As discussed above, in the instant matter, Plaintiffs argue that the Court should lift the stay entered in these proceedings. Specifically, Plaintiffs contend that: (1) in Florence, the Third Circuit did not address the constitutionality of a blanket body-cavity search policy on pre-trail non-indictable detainees as is asserted in this matter; and (2) in addition to the federal claims,
3

Plaintiffs’ Complaint here sets forth a statutory claim under the New Jersey Civil Rights Act which this Court should consider on the basis of this Court’s Supplemental Jurisdiction. Pls’ Reply Br. At 2-3. The Court does not agree. 2
A review of the Florence Petition demonstrates that a stay in the above-captioned matter continues to be warranted and will remain in effect pending the Supreme Court’s decision in Florence.
Initially, the Court notes that the facts set forth in the Florence Petition provide that while being held in Burlington County Jail, Mr. Florence was required “to strip naked for inspection by an officer. . . the officer directed Florence to open his mouth, lift his tongue, and lift his arms. The officer required Florence to turn around so that he could examine Florence’s backside. The officer finally ordered Florence to turn back around and lift his genitals for inspection.” Petition at 5. Similarly, after being transferred to Essex County Correctional Facility, Mr. Florence was strip searched pursuant to the policy of that facility and was required to “open [his] mouth, lift [his] genitals, and then turn around, squat and cough.” Id. at 7.3 Based on these facts, the Florence Petition specifically asks the Supreme Court to resolve the split amongst the Circuit Courts as to: “[w]hether the Fourth Amendment permits a jail to conduct a suspicionless strip
2In addition, Defendants incorrectly assert that the class definition governing this action only refers to strip searches and does not explicitly include body cavity searches. But the Court notes that Plaintiffs’ Third Amended Complaint provides that “strip and visual cavity searches are collectively referred to as ‘strip searches.’” Thus, the Court finds that Plaintiffs’ pleadings refer to both strip searches and body cavity searches.
3As in Florence, the Complaint in this matter alleges that while being held in Ocean County Correctional Facility, Plaintiffs were subjected to the facility’s strip search policy searches including “visual body cavity searches (visual inspection of the vaginal and rectal cavities).” Third Amended Complaint ¶ 32.
4

search of every individual arrested for any minor offense, whatever the circumstances.” Id. at 13.4 Importantly, the Petition cites to the contradictory decisions arising in the Circuit Courts and
demonstrates, based on the various courts’ holdings, that some of the courts that have considered
the issues have, in fact, ruled on the constitutionality of visual body cavity searches, as well as
strip searches. See Petition at 14 n.1 (citing to Weber v. Dell, 804 F.2d 796, 802 (2d Cir.
1986)(“We hold that the Fourth Amendment precludes prision officials from performing
strip/body cavity searches of arrestees charged with misdemeanors or other minor
offenses...”)(emphasis added); Petition at 16 n. 2 (citing to Powell v. Barrett, 541 F.3d 12989, 1307 (11th Cir. 2008)(en banc)(“The Bell decision . . . [i]s inconsistent with the conclusion that
the Fourth Amendment requries reasonable suspicion before an inmate entering or re-entering a
detention facility may be subjected to a strip search that includes a body cavity
inspection.”)(emphasis added)). Moreover, the Petition explains that the Florence “case which
involves two different jails, which apply different policies and conducted somewhat different
searches in distinct circumstances, makes this case particularly well-suited as an opportunity to
thoroughly explore the Fourth Amendment’s application to searches of non-indictable arrestees.”
Petition at 31(emphasis added). Thus, the Court finds that the Florence Petition can be read as
asking the Supreme Court to review the entirety of the issues concerning the constitutionality of
4Plaintiffs contend that Mr. Florence “abandoned” his visual body cavity search claims, Pls’ Br. at 6; a review of the Third Circuit’s opinion in Florence demonstrates that “Florence sought class certification only on his strip search claims; he did not seek certification on his claim that he was subjected to a visual body cavity search.” 621 F.3d at 300 n.1. The Court finds that although Mr. Florence may not have sought class certification on his visual body cavity search claims, the facts alleged in the Petition, discussed supra, make clear that Mr. Florence continues to argue that he was subject to both a strip search and a visual body cavity search in violation of his Fourth Amendment rights and that the Supreme Court may ultimately consider both types of searches.
5

strip searches on pretrial detainees charged with non-indictable offenses which may include the constitutionality of visual body cavity searches.
However, even if the Supreme Court considers only strip searches and not body cavity searches, this Court would reach the same conclusion on this motion. As pointed out in the Third Circuit’s decision in Bechtel, a court “may hold one lawsuit in abeyance to abide the outcome of another which may substantially affect it or be dispositive of the issues.” 544 F.2d at 1215 (emphasis added). Here, there is no doubt that even if the Supreme Court limits its review and discussion to strip searches, the Court’s analysis would substantively impact the claims asserted in this matter. To proceed piecemeal with claims in this case in light of the potential for the Supreme Court to resolve either all or some of the strip search issues would not be a good use of this Court’s or the litigants’ time and resources. As a result, this Court will exercise its discretion and will refrain from entering a debate that is currently pending before the Supreme Court.
Moreover, to the extent that Plaintiffs ask this Court to exercise its supplemental jurisdiction and rule on their claims under the New Jersey Civil Rights Act, the Court has already indicated that if no federal issues remain, it will not exercise supplemental jurisdiction to resolve purely state law issues. Thus, for the reasons set forth above, Plaintiffs’ motion is DENIED. III. CONCLUSION
For the foregoing reasons, Plaintiffs motion is DENIED and the case will remain administratively terminated pending a decision by the Supreme Court in Florence. An appropriate order will issue.
6

Dated: April 12, 2011

/s/ Freda L. Wolfson Freda L. Wolfson, U.S.D.J.

7

 
 Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 1 of 12
ADMCLOSED,RULE16,SCHEDO,STAYED
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:07−cv−05665−FLW−TJB

GARCIA et al v. OCEAN COUNTY et al Assigned to: Judge Freda L. Wolfson Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/28/2007 Date Terminated: 11/16/2009 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

JOSE GARCIA TERMINATED: 06/09/2008

represented by ELMER ROBERT KEACH , III 1040 RIVERFRONT CENTER PO BOX 70 AMSTERDAM, NY 12010 (518) 434−1718 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

SETH R. LESSER KLAFTER OLSEN &LESSER, LLP 2 International Place Suite 350 Rye Brook, NY 10573 914−934−9200 Email: slesser@klafterolsen.com TERMINATED: 08/13/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM A. RIBACK WILLIAM RIBACK, LLC 132 HADDON AVENUE HADDONFIELD, NJ 08033 (856) 857−0008 Fax: (856) 857−0028 Email: ribacklaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
WESLEY K. BELL TERMINATED: 06/09/2008

represented by ELMER ROBERT KEACH , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SETH R. LESSER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM A. RIBACK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EDWARD BIZZARRO

represented by ELMER ROBERT KEACH , III (See above for address) LEAD ATTORNEY

Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 2 of 12

ATTORNEY TO BE NOTICED

SETH R. LESSER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM A. RIBACK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAUREN PLEVINSKY WILLIAM RIBACK LLC 132 HADDON AVE HADDONFIELD, NJ 08033 (856)857−0008 ATTORNEY TO BE NOTICED

Plaintiff
RICHARD WRIGHT Individually and on behalf of a Class of others similarly situated

represented by ELMER ROBERT KEACH , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SETH R. LESSER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM A. RIBACK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAUREN PLEVINSKY (See above for address) ATTORNEY TO BE NOTICED

Plaintiff APRIL WEDDING

represented by ELMER ROBERT KEACH , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SETH R. LESSER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM A. RIBACK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAUREN PLEVINSKY (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 3 of 12

OCEAN COUNTY

represented by ROBERT SCOTT CLAYTON BERRY, SAHRADNIK, KOTZAS &BENSON, PC 212 HOOPER AVENUE PO BOX 757 TOMS RIVER, NJ 08754−0757 (732) 349−4800 TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK BERRY SAHRADNIK KOTZAS &BENSON 212 HOOPER AVENUE P.O. BOX 757 TOMS RIVER, NJ 08754 732−349−4800 Fax: 732−869−2893 Email: gslavick@bskb−law.com ATTORNEY TO BE NOTICED

STEVEN M. HORN REYNOLDS &DRAKE 29 NORTH SHORE ROAD ABSECON, NJ 08201 609−645−7406 Fax: 609−645−0129 Email: noappeal@comcast.net TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Defendant
THEODORE J. HUTLER, JR. both individually and in his official capacity as the Warden of the Ocean County Correctional Facility

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED

STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Defendant
SANDRA MUELLER both individually and in her official capacity as Chief of Corrections of the Ocean County Correctional Facility

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED

STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 4 of 12

Counter Claimant OCEAN COUNTY
Counter Claimant THEODORE J. HUTLER, JR. both individually and in his official capacity as the Warden of the Ocean County Correctional Facility
Counter Claimant SANDRA MUELLER both individually and in her official capacity as Chief of Corrections of the Ocean County Correctional Facility

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED
STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED
STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED
STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

V. Counter Defendant JOSE GARCIA
Counter Defendant APRIL WEDDING
Counter Defendant WESLEY K. BELL
Counter Defendant

Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 5 of 12

EDWARD BIZZARRO

Counter Defendant
RICHARD WRIGHT Individually and on behalf of a Class of others similarly situated

Counter Claimant OCEAN COUNTY

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED

STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Counter Claimant
THEODORE J. HUTLER, JR. both individually and in his official capacity as the Warden of the Ocean County Correctional Facility

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED

STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Counter Claimant
SANDRA MUELLER both individually and in her official capacity as Chief of Corrections of the Ocean County Correctional Facility

represented by ROBERT SCOTT CLAYTON (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

GARRICK RONALD SLAVICK (See above for address) ATTORNEY TO BE NOTICED

STEVEN M. HORN (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

V. Counter Defendant JOSE GARCIA
Counter Defendant

Case: 3:07-cv-05665-FLW-TJB As of: 05/10/2013 10:31 AM EDT 6 of 12
APRIL WEDDING
Counter Defendant WESLEY K. BELL
Counter Defendant EDWARD BIZZARRO
Counter Defendant RICHARD WRIGHT Individually and on behalf of a Class of others similarly situated

Date Filed 11/28/2007 12/05/2007 12/20/2007
12/20/2007
12/21/2007
01/03/2008 01/11/2008 01/16/2008 01/17/2008

# Docket Text
1 COMPLAINT against OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER ( Filing fee $ 350 receipt number 1756423.) JURY DEMAND, filed by JOSE GARCIA, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT.(jh) (Entered: 11/29/2007)
2 Summons Issued as to OCEAN COUNTY. Days Due − 20. (sk) (Entered: 12/05/2007)
3 MOTION for Leave to Appear Pro Hac Vice Alexandra C. Warren by JOSE GARCIA, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT. (Attachments: # 1 Certification William Riback# 2 Certification Alexandra C. Warren# 3 Text of Proposed Order # 4 Certificate of Service)(RIBACK, WILLIAM) (Entered: 12/20/2007)
4 MOTION for Leave to Appear Pro Hac Vice Charles J. LaDuca by JOSE GARCIA, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT. (Attachments: # 1 Certification William Riback# 2 Certification Charles J. LaDuca# 3 Text of Proposed Order # 4 Certificate of Service)(RIBACK, WILLIAM) (Entered: 12/20/2007)
Set Deadlines as to 4 MOTION for Leave to Appear Pro Hac Vice Charles J. LaDuca, 3 MOTION for Leave to Appear Pro Hac Vice Alexandra C. Warren. Motion Hearing set for 1/22/2008 10:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck, ) (Entered: 12/21/2007)
5 SUMMONS Returned Executed by JOSE GARCIA, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT. OCEAN COUNTY served on 12/10/2007, answer due 12/30/2007. (RIBACK, WILLIAM) (Entered: 01/03/2008)
6 AMENDED COMPLAINT against OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER, filed by JOSE GARCIA, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT. (Attachments: # 1 Certificate of Service)(RIBACK, WILLIAM) (Entered: 01/11/2008)
7 ANSWER to Amended Complaint by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER. (Attachments: # 1 Civil Cover Sheet Letter to Clerk with answer# 2 Certificate of Service)(CLAYTON, ROBERT) (Entered: 01/16/2008)
CLERK'S QUALITY CONTROL MESSAGE: The Answer 7 submitted by Robert Scott Clayton on 1/16/08 did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE (s/ Attorneys Name.) This submission will remain on the docket unless otherwise ordered by the court. (lt) (Entered: 01/17/2008)

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01/17/2008
01/17/2008 01/22/2008 01/23/2008 01/31/2008 01/31/2008 02/01/2008
02/20/2008 02/20/2008 03/03/2008 03/04/2008 03/04/2008
03/19/2008 04/07/2008 04/08/2008 05/02/2008 06/04/2008 06/04/2008

8 ORDER Scheduling a rule 16 Conference set for 3/3/2008 2:30 PM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni.Signed by Judge Tonianne J. Bongiovanni on 1/17/08. (Attachments: # 1 ADR MEMO)(mm) (Entered: 01/17/2008)
9 Revised ANSWER to Complaint by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER.(CLAYTON, ROBERT) (Entered: 01/17/2008)
10 NOTICE of Appearance by ELMER ROBERT KEACH, III on behalf of all plaintiffs (KEACH, ELMER) (Entered: 01/22/2008)
11 ORDER granting 3 Motion for Leave to Appear Pro Hac Vice; granting 4 Motion for Leave to Appear Pro Hac Vice Signed by Judge Tonianne J. Bongiovanni on 1/22/2008. (ss, ) (Entered: 01/23/2008)
12 MOTION for Leave to Appear Pro Hac Vice − Fran Rudich by JOSE GARCIA. (LESSER, SETH) (Entered: 01/31/2008)
Pro Hac Vice fee: for attorneys Alexandra C. Warren and Charles J. LaDuca $300, receipt number 200−350285. (lt) (Entered: 01/31/2008)
Set Deadlines as to 12 MOTION for Leave to Appear Pro Hac Vice − Fran Rudich. Motion Hearing set for 3/3/2008 before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (lt) (Entered: 02/01/2008)
13 Notice of Request by Pro Hac Vice Charles J. LaDuca to receive Notices of Electronic Filings. (RIBACK, WILLIAM) (Entered: 02/20/2008)
14 Notice of Request by Pro Hac Vice Alexandra Warren to receive Notices of Electronic Filings. (RIBACK, WILLIAM) (Entered: 02/20/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Initial Pretrial Conference held via conference call on 3/3/2008. (mm) (Entered: 03/04/2008)
15 ORDER granting 12 Motion for Fran L. Rudich, Esq. Leave to Appear Pro Hac Vice. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/4/08. (lk) (Entered: 03/05/2008)
16 SCHEDULING ORDER: Telephone Conference set for 6/9/2008 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Amended Pleadings due by 9/12/2008. Joinder of Parties due by 9/12/2008.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/4/08. (lk) (Entered: 03/05/2008)
17 ORDER re−setting Telephone Conference for 6/4/2008 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni.(Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/19/08.)(ms) (Entered: 03/19/2008)
18 LETTER ORDER: Telephone Conference set for 4/8/2008 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/4/08. (lk) (Entered: 04/07/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 4/8/2008. (mm) (Entered: 04/08/2008)
19 LETTER ORDER setting certain motion deadline. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/1/08. (ij, ) (Entered: 05/02/2008)
20 STIPULATION of Dismissal Without Prejudice by JOSE GARCIA. (LESSER, SETH) (Entered: 06/04/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 6/4/2008. Status Telephone Conference set for 9/12/2008 3:30 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 06/04/2008)

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06/05/2008 07/17/2008 07/30/2008 07/31/2008 08/01/2008 08/26/2008 09/12/2008 09/15/2008 09/15/2008 10/14/2008 10/15/2008 10/18/2008
10/20/2008
10/21/2008 10/30/2008

21 STIPULATION of Dismissal by JOSE GARCIA, WESLEY K. BELL. (tp ) (Entered: 06/09/2008)
22 LETTER ORDER setting telephone conference for 7/30/2008 at 3:30pm. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/17/2008. (tp ) (Entered: 07/17/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/30/2008. Status Telephone Conference set for 10/21/2008 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 07/30/2008)
23 Notice of Request by Pro Hac Vice Fran L. Rudich to receive Notices of Electronic Filings. (LESSER, SETH) (Entered: 07/31/2008)
24 ORDER confirming status call for 10/21/2008 at 10:30am. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/31/2008. (tp ) (Entered: 08/04/2008)
25 NOTICE of Appearance by STEVEN M. HORN on behalf of OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER (HORN, STEVEN) (Entered: 08/26/2008)
26 STIPULATION of Consent to Second Amended Complaint and Second Amended Complaint by EDWARD BIZZARRO. (Attachments: # 1 Exhibit Second Amended Complaint)(LESSER, SETH) (Entered: 09/12/2008)
27 Consent ORDER granting application for leave to file Amended Complaint. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/15/2008. (mmh) (Entered: 09/15/2008)
29 SECOND AMENDED COMPLAINT against OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER, filed by APRIL WEDDING, EDWARD BIZZARRO, RICHARD WRIGHT.(mmh) (Entered: 10/15/2008)
28 LETTER ORDER granting request of extension to file motion for class certification. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/10/2008. (mmh) (Entered: 10/14/2008)
30 ANSWER to Amended Complaint (Second), COUNTERCLAIM against all plaintiffs by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER.(CLAYTON, ROBERT) (Entered: 10/15/2008)
31 MOTION to Certify Class by APRIL WEDDING, EDWARD BIZZARRO, RICHARD WRIGHT. Responses due by 11/3/2008 (Attachments: # 1 Affirmation of Elmer Keach, # 2 Exhibit A −− Second Amended Class Action Complaint, # 3 Exhibit B −− Ocean County Deponent Deposition, pp. 1−100, # 4 Exhibit B, continued −− Ocean County Deponent Deposition, pp. 101−200, # 5 Exhibit B, continued −− Ocean County Depondent Deposition, pp. 201−end, # 6 Exhibit C −− Spina Diagram of Strip Search Room, # 7 Exhibit D −− Ocean County Strip Search Policy, # 8 Exhibit E −− Wedding Deposition, # 9 Exhibit F −− Wright Deposition Transcript, # 10 Exhibit G −− Bizaro Deposition Transcript, # 11 Exhibit H −− Tyson Decision, # 12 Exhibit I −− Williams Decision, # 13 Exhibit J −− Delandro Decision, # 14 Exhibit K −− Firm Resumes, Proposed Class Counsel, # 15 Memorandum of Law)(KEACH, ELMER) (Entered: 10/18/2008)
Setting Deadlines as to 31 MOTION to Certify Class. Motion set for 11/17/2008 in Trenton − Courtroom 5E before Judge Freda L. Wolfson. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (mmh) (Entered: 10/20/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 10/21/2008. (mm) (Entered: 10/21/2008)
32 LETTER ORDER re: certain briefing schedule. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/30/2008. (mmh) (Entered: 10/30/2008)

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11/10/2008
11/18/2008 11/20/2008 12/04/2008 02/26/2009 03/03/2009 03/03/2009 03/31/2009
06/09/2009 06/09/2009 06/12/2009
06/12/2009 06/29/2009 06/30/2009 07/01/2009 07/02/2009

33 BRIEF in Opposition re 31 MOTION to Certify Class Certification of Counsel filed by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER. (Attachments: # 1 Title Page, # 2 Brief, # 3 Table of Contents and Authorities, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F)(CLAYTON, ROBERT) (Entered: 11/10/2008)
34 Letter from William Riback. (RIBACK, WILLIAM) (Entered: 11/18/2008)
35 LETTER ORDER setting deadline of 12/4/2008 for Pltfs to file papers in further support of Class Certification. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/19/2008. (mmh) (Entered: 11/20/2008)
36 REPLY BRIEF to Opposition to Motion re 31 MOTION to Certify Class filed by EDWARD BIZZARRO. (Attachments: # 1 Certificate of Service)(LESSER, SETH) (Entered: 12/04/2008)
37 NOTICE by APRIL WEDDING, EDWARD BIZZARRO, RICHARD WRIGHT of Supplemental Authority (Attachments: # 1 Exhibit 1 − Copy of decision in Florence v Burlington County, # 2 Exhibit 2 Copy of decision in Young v Cook County, # 3 Certificate of Service)(LESSER, SETH) (Entered: 02/26/2009)
38 Letter from R. Scott Clayton, Esq. in response to plaintiffs' notice of supplemental authority re 37 Notice (Other), Notice (Other). (CLAYTON, ROBERT) (Entered: 03/03/2009)
39 Letter from Plaintiffs Counsel re Letter from Defendants Counsel to Judges Wolfson and Bongiovanni. (LESSER, SETH) (Entered: 03/03/2009)
40 NOTICE by APRIL WEDDING, EDWARD BIZZARRO, RICHARD WRIGHT of Second Notice of Supplemental Authority in Support of Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit A − Class certification decision and order in Wilson v Gloucester County, # 2 Exhibit B − Class certification decision in Jones v Murphy, # 3 Certificate of Service)(LESSER, SETH) (Entered: 03/31/2009)
41 OPINION FILED re 31 MOTION to Certify Class filed by APRIL WEDDING, RICHARD WRIGHT, EDWARD BIZZARRO. Signed by Judge Freda L. Wolfson on 6/9/2009. (mmh) (Entered: 06/09/2009)
42 ORDER granting 31 Motion to Certify Class; directing that Pltf's have 20 days to submit their Third Amended Complaint; appointing class counsel. Signed by Judge Freda L. Wolfson on 6/9/2009. (mmh) (Entered: 06/09/2009)
TEXT ORDER − Status Conference via telephone set for July 9, 2009 at 12:30 PM before Magistrate Judge Tonianne J. Bongiovanni. It shall be plaintiffs counsels responsibility to contact all counsel to set up the conference as well as to initiate the call. Kindly mark your calendar accordingly. Ordered by Magistrate Judge Tonianne J. Bongiovanni.(mm) (Entered: 06/12/2009)
43 Notice of Request by Pro Hac Vice Fran L. Rudich to receive Notices of Electronic Filings. (LESSER, SETH) (Entered: 06/12/2009)
44 AMENDED COMPLAINT (Third) against all defendants all defendants., filed by JOSE GARCIA, APRIL WEDDING, WESLEY K. BELL, EDWARD BIZZARRO, RICHARD WRIGHT. (Attachments: # 1 Certificate of Service)(LESSER, SETH) (Entered: 06/29/2009)
45 ANSWER to Amended Complaint THIRD, COUNTERCLAIM against all plaintiffs by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER.(CLAYTON, ROBERT) (Entered: 06/30/2009)
46 LETTER ORDER confirming the 7/2/2009 11:00 am telephone pretrial status conference. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/1/2009. (mmh) (Entered: 07/01/2009)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/2/2009. (mm) (Entered: 07/02/2009)

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07/02/2009 08/18/2009 08/19/2009 09/01/2009 09/10/2009
09/16/2009 09/17/2009 11/16/2009 11/16/2009
11/16/2009 11/16/2009 12/29/2009

47 LETTER ORDER that the telephone conference previously scheduled to occur on 7/9/2009 is cancelled and a Status Telephone Conference shall be held on 11/6/2009 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni; Pltf shall initiate the call. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/2/2009. (mmh) (Entered: 07/02/2009)
48 MOTION to Stay Proceedings, Attorney Certification and Order by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER. (Attachments: # 1 Civil Cover Sheet, # 2 Index Table of Contents and Authorities, # 3 Brief)(CLAYTON, ROBERT) (Entered: 08/18/2009)
Set Deadlines as to 48 MOTION to Stay Proceedings, Attorney Certification and Order. Motion set for 9/21/2009 before Judge Bongiovanni will be decided on the papers. No appearance required unless notified by the Court. (mmh) (Entered: 08/19/2009)
49 MEMORANDUM in Opposition re 48 MOTION to Stay Proceedings, Attorney Certification and Order filed by EDWARD BIZZARRO. (Attachments: # 1 Certificate of Service)(LESSER, SETH) (Entered: 09/01/2009)
TEXT ORDER − Telephone Conference set for November 6, 2009, is hereby RESCHEDULED to November 17, 2009 at 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni. It shall be plaintiffs counsels responsibility to contact all counsel to set up the conference as well as to initiate the call. Kindly mark your calendar accordingly. Ordered by Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 09/10/2009)
50 RESPONSE in Opposition re 48 MOTION to Stay Proceedings, Attorney Certification and Order filed by OCEAN COUNTY, THEODORE J. HUTLER, JR, SANDRA MUELLER. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(CLAYTON, ROBERT) (Entered: 09/16/2009)
51 Letter from Seth R. Lesser to the Hon. Freda L. Wolfson in response to Defendants' reply in support of motion for a stay. (Attachments: # 1 Certificate of Service)(LESSER, SETH) (Entered: 09/17/2009)
52 OPINION filed re 48 MOTION to Stay Proceedings, Attorney Certification and Order filed by SANDRA MUELLER, THEODORE J. HUTLER, JR., OCEAN COUNTY. Signed by Judge Freda L. Wolfson on 11/16/2009. (mmh) (Entered: 11/16/2009)
53 ORDER that 48 Defendants Motion to Stay Proceedings pending a decision from the Third Circuit Court of Appeals in the Florence case is GRANTED; that in the interests of judicial economy and conservation of the parties resources, the above−captioned case shall be immediately ADMINISTRATIVELY TERMINATED pending a decision from the Third Circuit Court of Appeals in the Florencecase, after which time this Court shall reinstate the matters referenced herein; that during the pendency of the Florence case, either party may make anapplication to this Court to reinstate the matter upon good cause shown. Signed by Judge Freda L. Wolfson on 11/16/2009. (mmh) (Entered: 11/16/2009)
***Civil Case Terminated. (mmh) (Entered: 11/16/2009)
54 LETTER ORDER that the telephone conference scheduled for 11/17/2009 is cancelled pending a decision by the third circuit. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/16/2009. (mmh) (Entered: 11/16/2009)
55 Substitution of Attorney − Attorney GARRICK RONALD SLAVICK for THEODORE J. HUTLER, JR,GARRICK RONALD SLAVICK for THEODORE J. HUTLER, JR,GARRICK RONALD SLAVICK for THEODORE J. HUTLER, JR,GARRICK RONALD SLAVICK for SANDRA MUELLER,GARRICK RONALD SLAVICK for SANDRA MUELLER,GARRICK RONALD SLAVICK for SANDRA MUELLER,GARRICK RONALD SLAVICK for OCEAN COUNTY,GARRICK RONALD SLAVICK for OCEAN COUNTY,GARRICK RONALD SLAVICK for OCEAN COUNTY added. Attorney ROBERT SCOTT CLAYTON and STEVEN M. HORN terminated.. (SLAVICK, GARRICK) (Entered: 12/29/2009)

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03/16/2010 03/17/2010
10/04/2010 11/08/2010
11/10/2010 12/02/2010 12/02/2010 12/10/2010 01/03/2011 02/18/2011 02/23/2011 03/03/2011
03/04/2011 03/21/2011
03/25/2011 03/25/2011 03/28/2011

56 NOTICE of Change of Address by SETH R. LESSER (LESSER, SETH) (Entered: 03/16/2010)
CLERK'S QUALITY CONTROL MESSAGE − The 56 NOTICE of Change of Address submitted by Seth Lesser on 3/16/2010 contains an improper signature. Only the filing user is permitted to sign electronically filed documents with an s/. IN THE FUTURE, PLEASE SUBMIT ALL DOCUMENTS WITH A PROPER SCANNED OR ELECTRONIC SIGNATURE. This submission will remain on the docket unless otherwise ordered by the court. (mmh) (mmh) (Entered: 03/17/2010)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 10/4/2010. (jg, ) (Entered: 10/04/2010)
57 LETTER ORDER that any objection to the application to withdraw as Counsel must be filed by 11/30/2010 otherwise Mr. Keach may file his withdrawal; he is instructed to provide this Order to class representatives within 7 days. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/8/2010. (mmh) (Entered: 11/08/2010)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 11/10/2010. (jg, ) (Entered: 12/01/2010)
58 Letter from Garrick R. Slavick, Esq.. (SLAVICK, GARRICK) (Entered: 12/02/2010)
59 Letter from Garrick R. Slavick, Esq.. (SLAVICK, GARRICK) (Entered: 12/02/2010)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 12/10/2010. (jg, ) (Entered: 12/10/2010)
60 LETTER ORDER granting request that the matter remain administratively stayed until at least 1/19/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/3/2011. (mmh) (Entered: 01/03/2011)
61 Letter from William Riback, Esquire. (RIBACK, WILLIAM) (Entered: 02/18/2011)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 2/23/2011. (jg, ) (Entered: 03/01/2011)
62 MOTION to Vacate /Lift the Stay by EDWARD BIZZARRO, APRIL WEDDING, RICHARD WRIGHT. (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Certification, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Certificate of Service)(RIBACK, WILLIAM) (Entered: 03/03/2011)
Set Deadlines as to 62 MOTION to Vacate /Lift the Stay. Motion set for 4/4/2011 before Judge Freda L. Wolfson. The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 03/04/2011)
63 BRIEF in Opposition re 62 MOTION to Vacate /Lift the Stay filed by THEODORE J. HUTLER, JR, SANDRA MUELLER(both individually and in her official capacity as Chief of Corrections of the Ocean County Correctional Facility), OCEAN COUNTY. (Attachments: # 1 Exhibit 1 − Florence Petition for a Writ of Certiorari)(SLAVICK, GARRICK) (Entered: 03/21/2011)
64 RESPONSE in Support re 62 MOTION to Vacate /Lift the Stay filed by WESLEY K. BELL, EDWARD BIZZARRO, JOSE GARCIA, APRIL WEDDING, RICHARD WRIGHT. (RIBACK, WILLIAM) (Entered: 03/25/2011)
65 NOTICE of Appearance by WILLIAM A. RIBACK on behalf of All Plaintiffs (RIBACK, WILLIAM) (Entered: 03/25/2011)
CLERK'S QUALITY CONTROL MESSAGE − This message is in reference to 65 Notice of Appearance filed on behalf of all Plaintiffs by William Riback. Please be advised that this Notice of Appearance is for Lauren Plivasky, Esq. and not William Riback as the docket text indicates. For future reference, Counsel is advised that when filing an initial document in a case, Counsel should add their name to the docket when prompted to do so. The Clerk's office has added attorney

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04/04/2011 04/12/2011 04/12/2011
08/13/2012 08/15/2012 08/15/2012 08/16/2012

LAUREN PLEVINSKY for all Plaintiffs. (mmh) (Entered: 03/28/2011)
66 Letter from William Riback, Esquire. (RIBACK, WILLIAM) (Entered: 04/04/2011)
67 OPINION filed. Signed by Judge Freda L. Wolfson on 4/12/2011. (mmh) (Entered: 04/12/2011)
68 ORDER denying 62 Motion to Vacate; that this matter shall remain ADMINISTRATIVELY TERMINATED pending the Supreme Courts decision in Florence v. Board of Chosen Freeholders of the County of Burlington, et al., 2011 WL 202772. Signed by Judge Freda L. Wolfson on 4/12/2011. (mmh) (Entered: 04/12/2011)
69 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney SETH R. LESSER terminated. (LESSER, SETH) (Entered: 08/13/2012)
70 NOTICE by FRAN L. RUDICH of Withdrawal of Appearance as Counsel (LESSER, SETH) (Entered: 08/15/2012)
71 NOTICE by CHARLES J. LADUCA of Withdrawal of Appearance as Counsel (LESSER, SETH) (Entered: 08/15/2012)
72 NOTICE by ALEXANDRA COLER WARREN of Withdrawal of Appearance as Counsel (LESSER, SETH) (Entered: 08/16/2012)