Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 1 of 14
CASREF,CMP,CLOSED
U.S. District Court Southern District of Indiana (New Albany) CIVIL DOCKET FOR CASE #: 4:14−cv−00054−TAB−RLY

GENTRY et al v. FLOYD COUNTY, INDIANA et al Assigned to: Magistrate Judge Tim A. Baker Referred to: Judge Richard L. Young Related Case: 4:16−cv−00025−RLY−TAB Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/12/2014 Date Terminated: 09/29/2017 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

TABITHA GENTRY

represented by Daniel J. Canon CLAY DANIEL WALTON & ADAMS 462 S. Fourth Street Louisville, KY 40202 (502) 561−2005 Fax: (502) 589−5500 Email: dan@justiceky.com ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich CLAY DANIEL WALTON & ADAMS PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561−2005 Fax: (502) 415−7505 Email: laura@justiceky.com ATTORNEY TO BE NOTICED

Theodore Wendover Walton CLAY FREDERICK ADAMS PLLC 462 South Fourth Street Meidinger Tower, Suite 101 Louisville, KY 40202 (502) 583−1000 Email: ted@justiceky.com ATTORNEY TO BE NOTICED

Plaintiff VINCENT MINTON

represented by Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

Theodore Wendover Walton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MICHAEL HERRON

represented by Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff ADAM WALKER
Plaintiff ANNA CHASTAIN
Plaintiff JANELLE SOUTH

Theodore Wendover Walton (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED
Theodore Wendover Walton (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED
Theodore Wendover Walton (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED
Theodore Wendover Walton (See above for address) ATTORNEY TO BE NOTICED

V. Defendant FLOYD COUNTY, INDIANA

represented by R. Jeffrey Lowe KIGHTLINGER & GRAY, LLP−New Albany Bonterra Building 3620 Blackiston Boulevard, Suite 200 New Albany, IN 47150 (812) 949−2300 Fax: (812) 949−8556 Email: jlowe@k−glaw.com ATTORNEY TO BE NOTICED
Richard R. Fox LAW OFFICES OF RICHARD R. FOX 409 Bank Street New Albany, IN 47150

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 3 of 14

(812) 944−2500 Fax: (812) 944−7707 Email: rfox@aye.net ATTORNEY TO BE NOTICED

Richard T. Mullineaux KIGHTLINGER & GRAY, LLP−New Albany Bonterra Building 3620 Blackiston Boulevard, Suite 200 New Albany, IN 47150 (812) 949−2300 Fax: (812) 949−8556 Email: rmullineaux@k−glaw.com ATTORNEY TO BE NOTICED

Defendant
DARRELL MILLS Individually, and in his capacity as Floyd County Sheriff

represented by R. Jeffrey Lowe (See above for address) ATTORNEY TO BE NOTICED

Richard T. Mullineaux (See above for address) ATTORNEY TO BE NOTICED

Defendant
TIFFANY FRANS Individually

represented by R. Jeffrey Lowe (See above for address) ATTORNEY TO BE NOTICED

Richard T. Mullineaux (See above for address) ATTORNEY TO BE NOTICED

Defendant
OFFICER ATHERTON Individualy

represented by R. Jeffrey Lowe (See above for address) ATTORNEY TO BE NOTICED

Richard T. Mullineaux (See above for address) ATTORNEY TO BE NOTICED

Defendant
RYAN RAINEY Individually

represented by R. Jeffrey Lowe (See above for address) ATTORNEY TO BE NOTICED

Richard T. Mullineaux (See above for address) ATTORNEY TO BE NOTICED

Defendant
JOHN/JANE DOE Individually

represented by R. Jeffrey Lowe (See above for address) ATTORNEY TO BE NOTICED

Richard T. Mullineaux (See above for address) ATTORNEY TO BE NOTICED

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 4 of 14

Date Filed 06/12/2014
06/12/2014 06/13/2014 06/13/2014 06/18/2014 06/20/2014 06/24/2014 06/25/2014 07/14/2014 08/01/2014 09/10/2014
09/16/2014 09/19/2014
10/13/2014 10/14/2014 11/05/2014

# Docket Text
1 COMPLAINT against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756−3089310) (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Proposed Summons)(Landenwich, Laura) (Entered: 06/12/2014)
2 NOTICE of Appearance by Laura Elizabeth Landenwich on behalf of Plaintiffs TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, ADAM WALKER. (Landenwich, Laura) (Entered: 06/12/2014)
3 Summons Issued as to OFFICER ATHERTON, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (JLM) (Entered: 06/13/2014)
4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (JLM) (Entered: 06/13/2014)
5 NOTICE of Appearance by R. Jeffrey Lowe on behalf of Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 06/18/2014)
6 NOTICE of Appearance by Daniel J. Canon on behalf of Plaintiffs TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, ADAM WALKER. (Canon, Daniel) (Entered: 06/20/2014)
7 NOTICE of Parties' First Extension of Time, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 06/24/2014)
8 RETURN of Service by CMRRR, filed by All Plaintiffs. FLOYD COUNTY, INDIANA served on 6/24/2014. (Landenwich, Laura) (Entered: 06/25/2014)
9 NOTICE of Appearance by Richard R. Fox on behalf of Defendant FLOYD COUNTY, INDIANA. (Fox, Richard) (Entered: 07/14/2014)
10 Defendants' ANSWER to 1 Complaint , filed by OFFICER ATHERTON, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY.(Lowe, R.) (Entered: 08/01/2014)
11 MOTION for Leave to File First Amended Complaint, filed by Plaintiffs TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, ADAM WALKER. (Attachments: # 1 Exhibit First Amended Complaint, # 2 Text of Proposed Order)(Landenwich, Laura) (Entered: 09/10/2014)
12 CASE MANAGEMENT PLAN TENDERED, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY . (Lowe, R.) (Entered: 09/16/2014)
13 ORDER: CASE MANAGEMENT PLAN APPROVED AS SUBMITTED. Jury Trial set for 12/7/2015, at 9:00 AM, New Albany time (EST), in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Judge Richard L. Young. The Court has allotted 10 days. Dispositive Motions due by 6/12/2015. Telephonic Status Conference set for 12/23/2014, at 11:00 AM, New Albany time (EST), before Magistrate Judge William G. Hussmann Jr. See attachment for particulars, including description of which client(s) must attend. Signed by Magistrate Judge William G. Hussmann, Jr on 9/19/2014.(JLM) (Entered: 09/19/2014)
14 NOTICE of Service of Initial Disclosures , filed by Plaintiffs TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, ADAM WALKER. (Landenwich, Laura) (Entered: 10/13/2014)
15 NOTICE of Service of Initial Disclosures , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 10/14/2014)
16 ORDER granting 11 Motion for Leave to File First Amended Complaint. The First Amended Complaint shall be filed of record in this case within 5 business days. Signed by Judge Richard L. Young on 11/5/2014. (LBT) (Entered: 11/05/2014)

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11/12/2014 11/18/2014 11/26/2014
01/08/2015 01/26/2015 01/29/2015 02/04/2015 02/06/2015 02/18/2015 03/04/2015

17 AMENDED COMPLAINT against All Defendants, filed by All Plaintiffs.(Landenwich, Laura) (Entered: 11/12/2014)
18 DEFENDANTS' ANSWER to 17 Amended Complaint , filed by OFFICER ATHERTON, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY.(Lowe, R.) (Entered: 11/18/2014)
19 MINUTE ORDER for proceedings held before Magistrate Judge William G. Hussmann, Jr: Attorney Conference Call held on 11/12/2014. The Magistrate Judge concludes that a determination of whether this claim should be brought as a class action and an appropriate definition of the classes and issues requires that the deadlines in the Case Management Plan be and hereby are VACATED at this time. The case is not stayed, but certain other deadlines need not be complied with until further order of the Court. Plaintiffs are to file any motions for class action certification on or before February 2, 2015. Defendants' response is to be filed on or before March 4, 2015. The parties disagree concerning the extent of a protective order proposed by the Defendants' counsel. The parties will promptly file briefs with respect to that issue. A further TELEPHONIC STATUS CONFERENCE is set for 6/24/2015,at 9:30 AM, New Albany time (EDT) before the Magistrate Judge. The information needed to participate in this telephonic concerence will be provided by a separate notification. Signed by Magistrate Judge William G. Hussmann, Jr. (JLM) (Entered: 11/26/2014)
21 NOTICE of Issuance of Subpoena Duces Tecum, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER (Attachments: # 1 Exhibit Subpoena Duces Tecum to Indiana State Police) (Landenwich, Laura) (Entered: 01/08/2015)
22 NOTICE of Appearance by Theodore Wendover Walton on behalf of Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Walton, Theodore) (Entered: 01/26/2015)
23 MOTION to Extend Deadline for Moving to Certify Class re 19 and Request for Status Conference, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit October 22, 2014 email chain, # 2 Exhibit November 5, 2014 email chain, # 3 Exhibit January 26, 2015 email chain, # 4 Text of Proposed Order)(Landenwich, Laura) Modified on 1/30/2015 to reflect accurate description of filing (JLM). (Entered: 01/29/2015)
24 ORDER granting 23 Plaintiffs' Motion to Extend Deadline for Moving to Certify Class − A Telephonic Status Conference is hereby set for 2/12/2015, at 11:00 AM, before Magistrate Judge William G. Hussmann Jr. The deadline for Plaintiffs' motion for class certification will be set at the status conference. Signed by Magistrate Judge William G. Hussmann, Jr on 2/4/2015.(JLM) (Entered: 02/05/2015)
25 NOTICE AND ORDER: On the Court's own motion, due to a conflict on the Magistrate Judge's calendar, the start time of the Telephonic Status Conference set for 2/12/2015 at 11:00 AM is hereby CHANGED to 10:00 AM, New Albany time (EST), before Magistrate Judge William G. Hussmann Jr. The information needed to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge William G. Hussmann, Jr on 2/6/2015.(LBT) (Entered: 02/06/2015)
27 MOTION for Protective Order , filed by Defendants OFFICER ATHERTON, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Exhibit 1 − Defendants' Answers to Plaintiffs' Interrogatories, # 2 Exhibit 2 − Defendants' Responses to Plaintiffs' Request for Production of Documents, # 3 Exhibit 3 − Defendants' Letter to Plaintiffs' Counsel dated 11/25/14, # 4 Exhibit 4 − Parties' Agreed Protective Order, # 5 Text of Proposed Order Granting Motion for Entry of Protective Order)(Lowe, R.) (Entered: 02/18/2015)
28 RESPONSE in Opposition re 27 MOTION for Protective Order , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Text of Proposed Order)(Canon, Daniel) (Entered: 03/04/2015)

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03/12/2015 03/16/2015
03/25/2015
05/06/2015
06/15/2015 06/15/2015 06/15/2015 06/15/2015 06/15/2015 06/15/2015 06/15/2015

29 ORDER Setting Hearing on 27 MOTION for Protective Order:Telephonic Motion Hearing set for 3/16/2015 at 2:30 PM, New Albany time (EDT), before Magistrate Judge William G. Hussmann Jr. The information needed for counsel to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge William G. Hussmann, Jr on 3/12/2015.(LBT) (Entered: 03/12/2015)
31 MINUTE ORDER for proceedings held before Magistrate Judge William G. Hussmann, Jr. Telephonic Status Conference held on 2/18/2015, in lieu of the status conference originally set for 2/12/2015. Defendants have agreed to produce certain items previously requested in discovery on or before 3/6/2015. Plaintiffs discussed an ongoing disagreement concerning the production of grievance files. In the event the parties are unable to agree to resolve this matter, Plaintiff should file a prompt motion to compel shortly after 3/6/2015. Telephonic Status Conference set for 4/30/2015 at 2:30 PM, New Albany time (EDT), before Magistrate Judge William G. Hussmann Jr. The information needed to participate in this telephonic conference will be provided by a separate notification. The presumptive date for filing motions to certify this matter as a class action is set for 5/30/2015. Signed by Magistrate Judge William G. Hussmann, Jr. (LBT) (Entered: 03/16/2015)
33 MINUTE ORDER for proceedings held before Magistrate Judge William G. Hussmann, Jr. Motion Hearing held on 3/16/2015 re 27 MOTION for Protective Order. 27 Motion for Protective Order is TAKEN UNDER ADVISEMENT. Defendants were directed to specify which particular Standard Operating Procedures they believe must remain confidential by no later than 3/19/2015. The parties will commence the deposition of a particular person on 3/19/2015. The Magistrate will conduct an in camera review of the need to maintain as confidential any policies which the Plaintiffs cannot agree to allow to remain confidential. In the event the Magistrate concludes that those policies may not remain confidential, the Magistrate will establish additional deposition time for the witness well in advance of the 5/30/2015 deadline for filing motions to certify the class. Signed by Magistrate Judge William G. Hussmann, Jr. (LBT) (Entered: 03/25/2015)
34 MINUTE ORDER for proceedings held before Magistrate Judge William G. Hussmann, Jr: Telephonic Status Conference held on 4/30/2015. The parties reported they have resolved the outstanding discovery disputes. Therefore, the remainder of the Motion for Protective Order 27 is DENIED, as moot. Plaintiffs will file any petition for class certification on or before June 15, 2015. Any response shall be filed on or before July 15, 2015, and any reply shall be filed on or before August 1, 2015. Telephonic Status Conference set for 8/20/2015 at 08:30 AM, New Albany time (EDT) before Magistrate Judge William G. Hussmann Jr. Signed by Magistrate Judge William G. Hussmann, Jr. (TMB) (Entered: 05/06/2015)
36 NOTICE of Filing of Filing of Deposition of Tabitha Gentry by All Plaintiffs (Attachments: # 1 Exhibit Deposition of Tabitha Gentry) (Landenwich, Laura) Modified on 6/16/2015 (LBT). (Entered: 06/15/2015)
37 NOTICE of Filing of Deposition of Michael Herron by All Plaintiffs (Attachments: # 1 Exhibit Deposition of Michael Herron) (Landenwich, Laura) (Entered: 06/15/2015)
38 NOTICE of Filing of Deposition of Adam Walker by All Plaintiffs (Attachments: # 1 Exhibit Deposition of Adam Walker) (Landenwich, Laura) (Entered: 06/15/2015)
39 NOTICE of Filing of Deposition of Vincent Minton by All Plaintiffs (Attachments: # 1 Exhibit Deposition of Vincent Minton) (Landenwich, Laura) (Entered: 06/15/2015)
40 NOTICE of Filing of Depsition of Anna Chasten by All Plaintiffs (Attachments: # 1 Exhibit Deposition of Anna Chasten) (Landenwich, Laura) (Entered: 06/15/2015)
41 NOTICE of Filing of Plaintiffs' Cumulative Deposition Exhibits re 36 , 37 , 38 , 39 and 40 Depositions by All Plaintiffs (Attachments: # 1 Exhibit Plaintiffs' Deposition Exhibits 1−3, # 2 Exhibit Plaintiffs' Deposition Exhibit 4, # 3 Exhibit Plaintiffs' Deposition Exhibits 5−7, # 4 Exhibit Plaintiffs' Deposition Exhibits 8−9, # 5 Exhibit Plaintiffs' Deposition Exhibits 10−13) (Landenwich, Laura) Modified on 6/16/2015 to create link to related documents (LBT). (Entered: 06/15/2015)
42 NOTICE of Filing of Deposition of Tiffany Frans by All Plaintiffs (Attachments: # 1 Deposition of Tiffany Frans, # 2 Exhibit Exhibit 1−Incident Report, # 3 Exhibit Exhibit 2−Incident Report, # 4 Exhibit Exhibit 3−Incident Report, # 5 Exhibit Exhibit

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 7 of 14

06/15/2015 06/15/2015
06/15/2015 06/15/2015 06/15/2015
06/15/2015 06/15/2015
06/16/2015

4−Incident Report) (Landenwich, Laura) (Entered: 06/15/2015)
43 NOTICE of Filing of Deposition of Meghan Atherton by All Plaintiffs (Attachments: # 1 Deposition of Meghan Atherton, # 2 Exhibit Exhibit 1−Combative Practices, # 3 Exhibit Exhibit 2−Inmate Rights, # 4 Exhibit Exhibit 3−Incident Report, # 5 Exhibit Exhibit 4−Incident Report) (Landenwich, Laura) (Entered: 06/15/2015)
44 NOTICE of Filing of Deposition of Andrew Sands by All Plaintiffs (Attachments: # 1 Deposition of Andrew Sands V. I, # 2 Deposition of Andrew Sands V. II, # 3 Exhibit Exhibit 1 − Combative Practices, # 4 Exhibit Exhibit 2 − Minton, # 5 Exhibit Exhibit 3 − PD Cell Rpt, # 6 Exhibit Exhibit 4 − Watch Log, # 7 Exhibit Exhibit 5 − Property Rect, # 8 Exhibit Exhibit 6 − Inmate File, # 9 Exhibit Exhibit 7 − Shower LIst, # 10 Exhibit Exhibit 8 − Walker, # 11 Exhibit Exhibit 9 − Strip Sch, # 12 Exhibit Exhibit 10 − Command, # 13 Exhibit Exhibit 11 − Searches, # 14 Exhibit Exhibit 12 − Reports, # 15 Exhibit Exhibit 13 − Force, # 16 Exhibit Exhibit 14 − Discipline, # 17 Exhibit Exhibit 15 − Rights, # 18 Exhibit Exhibit 16 − Inc Rpt, # 19 Exhibit Exhibit 17 − Inc Rpt, # 20 Exhibit Exhibit 18 − Inc Rpt, # 21 Exhibit Exhibit 19 − Inc Rpt, # 22 Exhibit Exhibit 20 − Inc Rpt, # 23 Exhibit Exhibit 21 − Photo, # 24 Exhibit Exhibit 22 − Photo, # 25 Exhibit Exhibit 23 − Photo, # 26 Exhibit Exhibit 24 − Photo, # 27 Exhibit Exhibit 25 − Watch Log, # 28 Exhibit Exhibit 26 − Watch spdst, # 29 Exhibit Exhibit 27 − Property Rect, # 30 Exhibit Exhibit 28 − Watch Log, # 31 Exhibit Exhibit 29 − Rpt, # 32 Exhibit Exhibit 30 Part 1 − Restraint, # 33 Exhibit Exhibit 30 Part 2 − Restraint, # 34 Exhibit Exhibit 30 Part 3 − Restraint, # 35 Exhibit Exhibit 30 Part 4 − Restraint) (Landenwich, Laura) (Entered: 06/15/2015)
45 MOTION to Sever Claims, filed by Plaintiff BRIAN BURGESS. (Attachments: # 1 Memo Supporting Plaintiff Burgess's Motion to Sever, # 2 Text of Proposed Order)(Landenwich, Laura) (Entered: 06/15/2015)
46 NOTICE of Filing of Deposition of Ryan Rainey by All Plaintiffs (Attachments: # 1 Deposition of Ryan Raineyo) (Landenwich, Laura) (Entered: 06/15/2015)
47 NOTICE of Filing of Exhibits for 46 Deposition of Ryan Rainey by All Plaintiffs (Attachments: # 1 Exhibit Rainey Depo Exhibit 1, # 2 Exhibit Rainey Depo Exhibit 2, # 3 Exhibit Rainey Depo Exhibit 3, # 4 Exhibit Rainey Depo Exhibit 4, # 5 Exhibit Rainey Depo Exhibit 5, # 6 Exhibit Rainey Depo Exhibit 6, # 7 Exhibit Rainey Depo Exhibit 7, # 8 Exhibit Rainey Depo Exhibit 8, # 9 Exhibit Rainey Depo Exhibit 9, # 10 Exhibit Rainey Depo Exhibit 10, # 11 Exhibit Rainey Depo Exhibit 11, # 12 Exhibit Rainey Depo Exhibit 12, # 13 Exhibit Rainey Depo Exhibit 13, # 14 Exhibit Rainey Depo Exhibit 14, # 15 Exhibit Rainey Depo Exhibit 15, # 16 Exhibit Rainey Depo Exhibit 16, # 17 Exhibit Rainey Depo Exhibit 17, # 18 Exhibit Rainey Depo Exhibit 18, # 19 Exhibit Rainey Depo Exhibit 19, # 20 Exhibit Rainey Depo Exhibit 20, # 21 Exhibit Rainey Depo Exhibit 21) (Landenwich, Laura) Modified on 6/16/2015 to link to related document (MAG). (Entered: 06/15/2015)
48 MOTION for Leave to File Excess Pages re Memorandum in Support of Motion for Class Certification, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Text of Proposed Order)(Landenwich, Laura) (Entered: 06/15/2015)
49 MOTION to Certify Class , filed by Plaintiffs ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Dept. Corrections Report, # 3 Exhibit Combative Subjects Policy, # 4 Exhibit Chastain Incident Report, # 5 Exhibit Chastain Behavior Log, # 6 Cover Sheet for Sealed Document Video Conventionally filed, # 7 Exhibit Herron Incident Report, # 8 Exhibit Herron Watch Log, # 9 Exhibit Minton Incident Rpt, # 10 Exhibit Minton Behavior Watch, # 11 Exhibit Walker Behavior Watch, # 12 Exhibit Incident Report Hayens, # 13 Exhibit Incident Report Mellen, # 14 Exhibit Incident Rpt Wolfe, # 15 Exhibit Incident Rpt Scrogham, # 16 Exhibit Incident Rpt Hawkins, # 17 Exhibit Incident Rpt Kokinda, # 18 Exhibit Incident Rpt Kaufman, # 19 Exhibit Incident rpt Brooks, # 20 Text of Proposed Order)(Landenwich, Laura) (Entered: 06/16/2015)
50 MOTION to Seal Document 49 MOTION to Certify Class Exhibit 5, DN 49−6, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER.

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06/16/2015
06/17/2015 06/17/2015 06/17/2015 06/19/2015 06/19/2015 07/01/2015
07/31/2015
08/03/2015 08/03/2015 08/05/2015 08/05/2015

(Attachments: # 1 Text of Proposed Order)(Landenwich, Laura) (Entered: 06/16/2015)
51 MOTION for Leave to File Corrected Memorandum in Support of Motion to Certify Class, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit Corrected Memorandum in Support of Motion to Certify Class, # 2 Text of Proposed Order)(Landenwich, Laura) (Entered: 06/16/2015)
52 ORDER granting 48 Motion for Leave to File Excess Pages. Signed by Magistrate Judge William G. Hussmann, Jr on 6/17/2015. (LBT) (Entered: 06/17/2015)
53 ORDER granting 50 Motion to Seal Exhibit 5 re 49 MOTION to Certify Class. Signed by Magistrate Judge William G. Hussmann, Jr on 6/17/2015. (LBT) (Entered: 06/17/2015)
54 SEALED manual filing of CD containing exhibit 5 re 49 Motion to Certify Class, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (LBT) (Entered: 06/17/2015)
55 ORDER granting 51 Plaintiffs' Motion for Leave to File Corrected Memorandum in Support of Motion for Class Certification. The Corrected Memorandum in Support shall be filed within (5) days of the date of this order. Signed by Magistrate Judge William G. Hussmann, Jr on 6/19/2015. (MAG) (Entered: 06/19/2015)
56 BRIEF/MEMORANDUM in Support re 49 MOTION to Certify Class , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Landenwich, Laura) (Entered: 06/19/2015)
57 MINUTE ORDER for proceedings held before Magistrate Judge William G. Hussmann, Jr: Telephonic Status Conference held on 6/24/2015. Telephonic Status Conference set for 11/16/2015 at 09:30 AM before Magistrate Judge William G. Hussmann Jr. The response to the currently pending Motion for Class Certification (Dkt. 49) must be filed and served on or before July 31, 2015. Any reply brief is to be filed and served no later than August 14, 2015. Discovery remains open by agreement of the parties. Final deadlines for completion of discovery and the scheduling of a trial date will be discussed at the November 16th status conference. Signed by Magistrate Judge William G. Hussmann, Jr. (TMB) (Entered: 07/02/2015)
59 Joint MOTION for Extension of Time to File Response re 49 MOTION to Certify Class submitted by Plaintiffs, filed by Defendants OFFICER ATHERTON, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order Granting Joint Motion to Extend Deadline by which Defendants must Respond to Plaintiffs' Motion for Class Certification and Deadline by which Plaintiffs must Reply to Defendants' Resposne to Plaintiffs' Motion for Class Certification)(Lowe, R.) (Entered: 07/31/2015)
60 MOTION for Leave to File Excess Pages , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order on Defendants' Motion to Exceed Page Limit)(Lowe, R.) (Entered: 08/03/2015)
61 RESPONSE in Opposition re 49 MOTION to Certify Class , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 08/03/2015)
62 NOTICE of Manual Filing re 61 Response in Opposition to 49 Motion for Class Certification, filed by Defendants FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (LBT) (Entered: 08/05/2015)
63 ORDER granting 59 Motion for Extension of Time to File Response − It is therefore Ordered, Adjudged and Decreed the Defendants shall have until August 3, 2015, to file a responsive pleading to the Plaintiffs' 49 Motion for Class Certification and the Plaintiffs shall have until August 17, 2015 to file a Reply to Defendants' Response to Plaintiffs' Motion for Class Certification. Signed by Magistrate Judge William G.

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 9 of 14

08/05/2015 08/05/2015 08/17/2015
08/31/2015 11/18/2015 01/28/2016 01/28/2016 01/29/2016
02/16/2016
02/16/2016 02/17/2016 02/17/2016

Hussmann, Jr on 8/5/2015. (MAG) (Entered: 08/05/2015)
64 Receipt of 6 CDs re 62 NOTICE of Manual Filing re 61 Response in Opposition to 49 Motion for Class Certification, filed by Defendants FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (LBT), (LBT) (Entered: 08/05/2015)
65 ORDER granting 60 Motion for Leave to File Excess Pages − It is therefore ordered the Defendants shall have approximately 50 pages in which to respond to the Plaintiff's Motion for Class Certification. Signed by Magistrate Judge William G. Hussmann, Jr on 8/5/2015. (MAG) (Entered: 08/05/2015)
66 REPLY in Support of Motion re 49 MOTION to Certify Class , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit 1 Incident Reports, # 2 Exhibit 2 Walton Declaration, # 3 Exhibit 3 Landenwich Declaration, # 4 Exhibit 4 Canon Declaration)(Landenwich, Laura) (Entered: 08/17/2015)
67 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr: Telephone Conference held on 8/20/2015. There are no additional matters at issue at this time. The conference set for November 16, 2015, at 9:30 a.m. (EST) remains on the Magistrate Judge's calendar. (TMB) (Entered: 08/31/2015)
68 Minute Entry for proceedings held before Magistrate Judge William G. Hussmann, Jr: Status Conference held on 11/16/2015. The current trial setting of December 7, 2015, is VACATED. Status Conference set for 2/4/2016 at 09:30 AM in Telephonic before Magistrate Judge William G. Hussmann, Jr. (NRN) (Entered: 11/18/2015)
70 ORDER REASSIGNING CASE. Clerk is directed to randomly reassign case and notify parties of newly assigned Magistrate Judge. Signed by Judge Richard L. Young on 1/28/2016. (JD) (Entered: 01/28/2016)
71 NOTICE of Reassignment of Case to Magistrate Judge Tim A. Baker. Magistrate Judge William G. Hussmann, Jr., is no longer assigned to the case. Please include the new case number, 4:14−cv−00054−RLY−TAB, on all future filings in this matter. (JD) Corrected case number on 1/28/2016 (JD). (Entered: 01/28/2016)
72 ORDER − This matter has been reassigned from the docket of Magistrate Judge William G. Hussmann to that of Magistrate Judge Tim A. Baker. Please note the revised cause number, which is to be used on all future filings. The telephonic status conference set for February 4, 2016, is vacated and reset before Magistrate Judge Tim A. Baker at 10:30 a.m. on February 12, 2016. Parties shall appear by counsel, who shall contact the Court at 317−229−3660. Signed by Magistrate Judge Tim A. Baker on 1/29/2016.(MGG) (Entered: 01/29/2016)
74 ORDER ON FEBRUARY 12, 2016 TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel February 12, 2016, for a telephonic status conference. Discussion held regarding discovery, settlement and related matters. Given the parties' settlement positions, it does not appear that a court−supervised settlement conference would be productive at this time. The parties shall notify the Magistrate Judge after the District Judge rules on the pending motion to certify class to set a telephonic status conference to address case management and settlement. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 02/16/2016)
75 ORDER granting 49 Motion to Certify Class. See Order for details. Signed by Judge Richard L. Young on 2/16/2016. (LBT) (Entered: 02/16/2016)
76 ORDER ON BRIAN BURGESS'S MOTION TO SEVER − 45 Motion to Sever is GRANTED. The Clerk is directed to open a new case with Mr. Burgess as the sole plaintiff. See Case No. 4:16−cv−25−RLY−TAB. Signed by Judge Richard L. Young on 2/17/2016. (LBT) Modified on 2/17/2016 (LBT). (Entered: 02/17/2016)
77 MOTION to Amend/Correct 75 Order on Motion to Certify Class , filed by Plaintiffs ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Text of Proposed Order)(Landenwich, Laura) (Entered: 02/17/2016)

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 10 of 14

03/01/2016 03/01/2016 03/18/2016 03/29/2016 04/11/2016 06/15/2016 07/05/2016 07/06/2016 07/25/2016
07/25/2016 07/29/2016

78 MOTION for Reconsideration re 75 Order on Motion to Certify Class , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order Granting Reconsideration)(Lowe, R.) (Entered: 03/01/2016)
79 BRIEF/MEMORANDUM in Support re 78 MOTION for Reconsideration re 75 Order on Motion to Certify Class , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Exhibit One − Hoffman et al v. Jacobi et al Order)(Lowe, R.) (Entered: 03/01/2016)
80 RESPONSE in Opposition re 78 MOTION for Reconsideration re 75 Order on Motion to Certify Class , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Canon, Daniel) (Entered: 03/18/2016)
81 REPLY in Support of Motion re 78 MOTION for Reconsideration re 75 Order on Motion to Certify Class and Reply to Plaintiffs' Response, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 03/29/2016)
82 ORDER ON PLAINTIFFS' MOTION TO AMEND CLASS DEFINITION − 77 Motion to Amend Class Definition is GRANTED. The class definition is hereby modified to reflect the class consists of all people held in the Floyd County Jail's strip cell from June 12, 2012 to present. Signed by Judge Richard L. Young on 4/11/2016. (LBT) (Entered: 04/11/2016)
83 ORDER SETTING TELEPHONIC STATUS CONFERENCE − This cause is set for a telephonic status conference at 10:30 a.m. on July 5, 2016. Parties shall participate in this conference by counsel, who shall call the Court at 317−229−3660. The purpose of this conference is to discuss case management and settlement. Signed by Magistrate Judge Tim A. Baker on 6/15/2016.(MGG) (Entered: 06/15/2016)
85 ORDER ON JULY 5, 2016, TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel, July 5, 2016, for a telephonic status conference. Discussion held regarding settlement, and related matters. Defendants' counsel shall contact the Magistrate Judge by July 15, 2016, to advise the Court whether Defendant wants to set this matter for a settlement conference. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 07/05/2016)
86 SCHEDULING ORDER: Final Pretrial Conference set for 2/2/2017 at 2:30 PM, in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Judge Richard L. Young. Jury Trial set for 2/13/2017 at 9:00 AM, in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Judge Richard L. Young. The court has allotted ten days for this trial. Signed by Judge Richard L. Young on 7/6/2016. (MAG) (Entered: 07/06/2016)
87 ENTRY ON DEFENDANTS' MOTION FOR RECONSIDERATION OF COURT'S ENTRY ON PLAINTIFF'S MOTION TO CERTIFY CLASS − The court finds it did not err with respect to the certification of the main class, but did err with respect to certification of the subclass. Therefore, the court GRANTS in part and DENIES in part 78 Defendants' Motion for Reconsideration of Court's Entry on Plaintiffs' Motion to Certify Class. See Entry for details. Signed by Judge Richard L. Young on 7/25/2016. (LBT) (Entered: 07/25/2016)
88 SCHEDULING ORDER: Telephonic Status Conference set for 7/29/2016 at 2:30 PM before Magistrate Judge Tim A. Baker. Parties shall appear by counsel who shall contact the Court at 317−229−3660. Signed by Magistrate Judge Tim A. Baker on 7/25/2016. (ADH) (Entered: 07/25/2016)
89 MOTION for Reconsideration of De−Certification of Sub−Class, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit Exhibit 1 − Class members identified in this case, # 2 Text of Proposed Order)(Landenwich, Laura) (Entered: 07/29/2016)

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 11 of 14

07/29/2016
08/02/2016
08/05/2016 08/08/2016 08/08/2016 08/08/2016 08/09/2016 08/15/2016 08/22/2016 08/22/2016 08/24/2016 08/24/2016

90 MOTION to Approve Class Certification Notice, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit Exhibit 1 − Notice of Class Certification and Opt Out Form, # 2 Exhibit Exhibit 2 − Identified Class Members, # 3 Text of Proposed Order)(Landenwich, Laura) (Entered: 07/29/2016)
91 ORDER ON JULY 29, 2016, TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel, July 29, 2016, for a telephonic status conference. Discussion held regarding discovery, settlement, and related matters. The dispositive motions deadline is August 29, 2016, and counsel shall expect the briefing schedule to be strictly enforced due to the February 13, 2017, trial date. The parties shall submit a proposed Case Management Plan by August 5, 2016, incorporating this deadline. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 08/02/2016)
92 Proposed Revised CASE MANAGEMENT PLAN TENDERED, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY . (Lowe, R.) (Entered: 08/05/2016)
93 MOTION to Stay Proceedings pending resolution of Federal Rule of Civil Procedure 23(f) appeal to the Seventh Circuit Court of Appeals, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order Granting Defendants' Motion for Stay)(Lowe, R.) (Entered: 08/08/2016)
94 BRIEF/MEMORANDUM in Support re 93 MOTION to Stay Proceedings pending resolution of Federal Rule of Civil Procedure 23(f) appeal to the Seventh Circuit Court of Appeals , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 08/08/2016)
95 MOTION for Continuance of Trial Date and Dispositive Motion Deadline, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order Granting Motion to Continue Dispositive Motion Deadline and Trial Date)(Lowe, R.) (Entered: 08/08/2016)
96 ORDER: REVISED CASE MANAGEMENT PLAN APPROVED AS SUBMITTED − Dispositive Motions due by 8/29/2016. Discovery due by 9/29/2016. See Order for details. Signed by Magistrate Judge Tim A. Baker on 8/9/2016. (MAG) (Entered: 08/09/2016)
97 RESPONSE in Opposition re 89 MOTION for Reconsideration of De−Certification of Sub−Class , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Lowe, R.) (Entered: 08/15/2016)
98 RESPONSE in Opposition re 95 MOTION for Continuance of Trial Date and Dispositive Motion Deadline , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Landenwich, Laura) (Entered: 08/22/2016)
99 RESPONSE in Opposition re 93 MOTION to Stay Proceedings pending resolution of Federal Rule of Civil Procedure 23(f) appeal to the Seventh Circuit Court of Appeals , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Canon, Daniel) (Entered: 08/22/2016)
100 USCA Order (Certified Copy) (USCA # 16−8014) − IT IS ORDERED that the Petition for Leave to Appeal, filed by FLOYD COUNTY, INDIANA, et al, is DENIED. (LBT) (Entered: 08/24/2016)
101 REPLY in Support of Motion re 95 MOTION for Continuance of Trial Date and Dispositive Motion Deadline , filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order − Alternate Proposed Order with More Specific Dates)(Lowe, R.) (Entered: 08/24/2016)

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 12 of 14

08/25/2016 08/26/2016 08/26/2016 08/29/2016 09/19/2016 09/21/2016
09/23/2016 09/27/2016 10/24/2016 10/26/2016 10/27/2016 10/31/2016
12/09/2016

102 REPLY in Support of Motion re 89 MOTION for Reconsideration of De−Certification of Sub−Class , filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Landenwich, Laura) (Entered: 08/25/2016)
103 MARGINAL ENTRY − 93 Motion to Stay is DENIED, though the Court will by separate order extend certain deadlines as well as vacate the trial date. Signed by Magistrate Judge Tim A. Baker on 8/26/2016. (LBT) (Entered: 08/26/2016)
104 ORDER granting 95 Motion to Continue Trial Date. The dispositive motion deadline currently set for August 29, 2016 and trial set for February 13, 2017 be, and are hereby vacated. A telephonic status conference will be set by separate order. Signed by Magistrate Judge Tim A. Baker on 8/26/2016.(LBT) (Entered: 08/26/2016)
105 SCHEDULING ORDER: Telephonic Status Conference set for 9/15/2016 at 9:30 AM before Magistrate Judge Tim A. Baker. The purpose of this conference is to address case status and scheduling. Signed by Magistrate Judge Tim A. Baker on 8/29/2016.(LBT) (Entered: 08/29/2016)
106 Second Revised Agreed CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER ,and Defendants. (Landenwich, Laura) (Entered: 09/19/2016)
107 ORDER ON SEPTEMBER 15, 2016, TELEPHONIC STATUS CONFERENCE AND ORDER SETTING SETTLEMENT CONFERENCE AND RELATED DEADLINES − Parties appeared in person and by counsel September 15, 2016, for a telephonic status conference. Discussion held regarding discovery, settlement and related matters. The parties shall file a proposed, revised Case Management Plan within seven days consistent with the deadlines discussed with the Court. This matter is set for a settlement conference at noon on December 20, 2016, in Room 224, United States Courthouse, 121 W. Spring Street, New Albany, Indiana, before Magistrate Judge Tim A. Baker. **SEE ORDER** Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 09/21/2016)
108 NOTICE of Filing Expert Disclosure by All Plaintiffs (Attachments: # 1 Exhibit Expert Report and Exhibits) (Landenwich, Laura) (Entered: 09/23/2016)
109 ORDER: 2ND REVISED CASE MANAGEMENT PLAN APPROVED AS SUBMITTED. Dispositive Motions due by 12/9/2016. Discovery due by 11/24/2016. Signed by Magistrate Judge Tim A. Baker on 9/27/2016.(LBT) (Entered: 09/27/2016)
110 NOTICE of Service of Expert Witness Disclosure, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY, re 109 Order: Case ManagementScheduling Order. (Lowe, R.) (Entered: 10/24/2016)
112 ORDER granting Plaintiffs' 90 Motion TO APPROVE CLASS CERTIFICATION NOTICE. Signed by Judge Richard L. Young on 10/27/2016. (TMD) (Entered: 10/27/2016)
111 ORDER denying Plaintiff's 89 Motion for Reconsideration of De−Certification of Sub−Class. Signed by Judge Richard L. Young on 10/26/2016. (TMD) (Entered: 10/27/2016)
113 SCHEDULING ORDER: Final Pretrial Conference set for 7/13/2017 at 2:30 PM, in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Judge Richard L. Young. Jury Trial set for 7/24/2017 at 9:00 AM, in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Judge Richard L. Young. The court has allotted ten days for this trial. Signed by Judge Richard L. Young on 10/31/2016. (MAT) (Entered: 10/31/2016)
114 Joint MOTION for Extension of Time to 12/23/16 in which to 106 Case Management Plan Tendered by, 109 Order: Case ManagementScheduling Order re: Dispositive Motion Deadline and Deadline to File Motions re: Experts, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Attachments: # 1 Text of Proposed Order)(Lowe, R.) (Entered: 12/09/2016)

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 13 of 14

12/12/2016 12/30/2016
12/30/2016 02/06/2017
05/23/2017
06/05/2017 06/09/2017 06/09/2017 06/12/2017 07/19/2017 07/20/2017 07/23/2017 07/24/2017

115 ORDER granting 114 Motion to Extend Dispositive Motion Deadline and Expert Witness Motion Deadline − Dispositive Motion due by 12/23/2016. Motions to Limit or Exclude Expert Witness Testimony due 12/23/2016. Signed by Magistrate Judge Tim A. Baker on 12/12/2016. (MAT) (Entered: 12/12/2016)
116 ORDER ON DECEMBER 20, 2016, SETTLEMENT CONFERENCE − Parties appeared in person and by counsel December 20, 2016, for a settlement conference. The parties shall continue their settlement discussions and contact the Magistrate Judge by December 28, 2016, with an update. The summary judgment deadline is enlarged to December 30, 2016. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 12/30/2016)
Dispositive Motions due by 12/30/2016 per No. 116. (LBT) (Entered: 01/03/2017)
117 Joint MOTION to Approve Settlement, Direct Dissemination of Notice, and Schedule Final Hearing, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit 1 Settlement Agreement, # 2 Exhibit A Claim Form, # 3 Exhibit B Class List, # 4 Exhibit C Class Notice, # 5 Exhibit D Policy, # 6 Exhibit E Preliminary Approval, # 7 Text of Proposed Order)(Landenwich, Laura) (Entered: 02/06/2017)
118 ORDER granting 117 Motion for Preliminary Approval of Class Action Settlement, Directing the Dissemination of Notice and Scheduling a Final Settlement Hearing. Fairness Hearing set for 7/24/2017 at 1:00 PM in room #200, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Magistrate Judge Tim A. Baker. See Order for details. Signed by Magistrate Judge Tim A. Baker on 5/24/2017.(LBT) (Entered: 05/24/2017)
119 SCHEDULING ORDER: Telephonic Status Conference set for 6/7/2017 at 3:00 PM before Magistrate Judge Tim A. Baker. The purpose of this conference is to address rescheduling the fairness hearing. Signed by Magistrate Judge Tim A. Baker on 6/5/2017.(LBT) (Entered: 06/05/2017)
120 ORDER ON JUNE 7, 2017, TELEPHONIC STATUS CONFERENCE − Parties appeared by counsel June 7, 2017, for a telephonic status conference. Discussion held regarding the July 24, 2017, fairness hearing. The hearing remains set as scheduled. Signed by Magistrate Judge Tim A. Baker. (MGG) (Entered: 06/09/2017)
121 NOTICE Consent, and Reference of a Civil Action to a Magistrate Judge, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER (Landenwich, Laura) (Entered: 06/09/2017)
122 ORDER REFERRING CASE to Magistrate Judge Tim A. Baker. COUNSEL PLEASE NOTE THAT ALL FUTURE PLEADINGS SHALL BEAR THE ALTERED CASE NUMBER 4:14−cv−54−TAB−RLY. Signed by Judge Richard L. Young on 6/12/2017. (MAT) (Entered: 06/12/2017)
123 NOTICE Respecting Class Action Fairness Act Notification, filed by Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY (Attachments: # 1 Exhibit Ex A − Notices) (Lowe, R.) (Entered: 07/19/2017)
124 NOTICE of Appearance by Richard T. Mullineaux on behalf of Defendants OFFICER ATHERTON, JOHN/JANE DOE, FLOYD COUNTY, INDIANA, TIFFANY FRANS, DARRELL MILLS, RYAN RAINEY. (Mullineaux, Richard) (Entered: 07/20/2017)
125 MOTION for Final Approval, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Settlement Agreement, # 3 Exhibit Affidavit, # 4 Text of Proposed Order)(Landenwich, Laura) (Entered: 07/23/2017)
126 BRIEF/MEMORANDUM in Support re 125 MOTION for Final Approval of Class Action Settlement, filed by Plaintiffs BRIAN BURGESS, ANNA CHASTAIN, TABITHA GENTRY, MICHAEL HERRON, VINCENT MINTON, JANELLE

Case: 4:14-cv-54 As of: 02/01/2018 02:48 PM EST 14 of 14

07/25/2017 07/27/2017
08/02/2017 09/29/2017

SOUTH, ADAM WALKER. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Affidavit Dahl Affidavit, # 3 Text of Proposed Order Proposed Order)(Walton, Theodore) (Entered: 07/24/2017)
127 Submission of Signature Requirement re 126 Brief/Memorandum in Support by All Plaintiffs. (Attachments: # 1 Exhibit 1 Settlement Agreement, # 2 Exhibit 2. Dahl Affidavit, # 3 Text of Proposed Order)(Landenwich, Laura) (Entered: 07/25/2017)
128 MINUTE ORDER for proceedings held before Magistrate Judge Tim A. Baker: Motion Hearing held on 7/24/2017 re 125 MOTION for Final Approval filed by MICHAEL HERRON, TABITHA GENTRY, VINCENT MINTON, JANELLE SOUTH, ADAM WALKER, ANNA CHASTAIN, BRIAN BURGESS. Signed by Magistrate Judge Tim A. Baker. (ADH) (Entered: 07/27/2017)
129 ORDER granting 125 Motion for Final Approval. **SEE ORDER FOR DETAILS**. Signed by Magistrate Judge Tim A. Baker on 8/2/2017. (MGG) (Entered: 08/02/2017)
130 CLOSED ORDER OF ADMINISTRATIVE CLOSING − On August 2, 2017, the Court granted final approval of the class action settlement. (Filing No. 129 .) Therefore, the Court, upon its own motion, now closes this action administratively without prejudice to the right of any party to move to restore the action to the Court's active docket. Counsel shall promptly notify the Court when all terms of settlement have been finalized so this case may be dismissed with prejudice. Signed by Magistrate Judge Tim A. Baker on 9/29/2017.(LBT) (Entered: 09/29/2017)

Case #: 4:14−cv−00054−TAB−RLY

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

TABITHA GENTRY,

)

VINCENT MINTON,

)

MICHAEL HERRON,

)

ADAM WALKER,

)

BRIAN BURGESS,

)

ANNA CHASTAIN, and

)

JANELLE SOUTH, on their own behalf )

and on behalf of those similarly situated, )

)

)

Plaintiffs,

)

)

vs.

)

)

FLOYD COUNTY, INDIANA,

)

DARRELL MILLS, Individually and in )

his capacity as Floyd County Sheriff,

)

TIFFANY FRANS, Individually,

)

OFFICER ATHERTON, Individually,

)

RYAN RAINEY, Individually, and

)

OFFICERS JOHN/JANE DOE,

)

Individually,

)

)

Defendants. )

4:14-cv-00054-RLY-TAB

ENTRY ON PLAINTIFFS’ MOTION TO CERTIFY CLASS Plaintiffs, Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Brian

Burgess, Anna Chastain, and Janelle South, are a group of detainees who were housed in

padded isolation cells of the Floyd County Jail in conditions they claim were

unconstitutional. Before the court is Plaintiffs’ Motion for Class Certification. For the

reasons that follow, Plaintiffs’ Motion for Class Certification is GRANTED.

1

I. Background In 2010, the Floyd County Sheriff’s Department issued a policy statement entitled
“Combative Subjects Practices.” (Filing No. 49-3, Combative Subjects Policy). As the
name of the Policy suggests, the Policy covers the best practices for Floyd County Jail
Personnel to deal with “combative and potentially suicidal subjects” entering the Jail.
(Id.). The Policy leaves the determination of who falls within the Policy to the discretion
of Jail Personnel, and grants them the authority to take unruly detainees to a padded cell,
strip them of their clothes, and replace their clothes with a “protective smock.” (Id.). In
determining whether a subject is unruly, the Policy instructs staff to use a “temperature
test”:
Supervisors or medical staff that deem a subject unstable by means of intoxications [sic], general threating [sic] behavior, have the ability to take each incident and conduct a “temperature” test to decided [sic] what the best course of action is to protect all parties. This “temperature” test to decided [sic] what the best course of action is to protect all parties. This “temperature” test includes the subject’s demeanor, attitude, actions, intoxication, and a number of other officer observations that would allow him to make this determination. (Id.).
Subjects who fail the temperature test are placed into one of two padded isolation
cells, referred to as “PD-1” and “PD-2.” (Filing No. 44-1, Deposition of Lt. Andrew Sands1 at 90-92). These cells consist of four walls; there is no bench on which to sit.
(See Filing No. 52, Plaintiffs’ Ex. 5 (videotape of Plaintiffs in one of the cells)). Once
1 The deposition of Lt. Sands is uploaded on the docket at Filing Nos. 44-1 and -2. Hereinafter, his deposition will be cited as “Sands Dep. at [page no.].”
2

inside a padded cell, detainees are stripped of their clothing (sometimes forcibly) and given a one-size-fits-all protective (i.e., suicide prevention) smock. In addition, they are deprived of mattresses, blankets, and personal hygiene products because, according to Lt. Andrew Sands, such items can be used as weapons. (Sands Dep. at 125-29; see also id. at 230 (“Q: So anytime someone refuses orders, you view them as a threat to use their clothing as a weapon against officers? A: Among other reasons, yes.”)). Detainees remain in the padded cell until Jail Personnel determine, in their judgment, that the detainees will behave. (Id. at 103-04 (testifying that “if an inmate was a behavioral problem, we may tell them, “Okay. Let’s reevaluate this in a couple hours [until] you can prove to us that you’re going to follow our rules and be respectful . . . .”)).
The Plaintiffs herein were not placed in a padded cell because of a risk of suicide. Instead, Plaintiffs were placed (sometimes forcibly carried) in a padded cell because they failed the temperature test by engaging in bad behavior during the booking process, such as engaging in verbal arguments with Jail Personnel. (See, e.g., Filing No. 1, Compl. ¶ 47). In addition to being stripped of their clothing, Plaintiffs allege they were treated without dignity or respect. Some had to urinate in a floor drain (Id. ¶¶ 62, 75, 84, 106, 122, 136); some were denied their medications (id. ¶¶ 110, 132); some were pepper sprayed (id. ¶¶ 56, 115); and some were hit with a taser (id. ¶¶ 72, 101).
Plaintiffs allege that the Jail’s Policy and unwritten practice of “stripping out”2 unruly subjects violates the Fourth Amendment’s right to privacy and prohibition against
2 Sgt. Ryan Rainey testified that the term “stripping out” is “just a short form of saying they went to a padded cell.” (Filing No. 46, Deposition of Ryan Rainey at 26).
3

excessive force; the Eighth Amendment’s prohibition against cruel and unusual punishment; and the Fourteenth Amendment’s right to substantive and procedural due process. Plaintiffs seek to certify the following class for liability issues only pursuant to Rule 23(c)(4):
All inmates confined from June 12, 2013 to present in the Floyd County Jail who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products. In addition, Plaintiff’s propose the following subclass: Those class members who were subjected to weapons deployment while confined and secured in the padded cells. II. Rule 23 Requirements Class action suits are governed by Federal Rule of Civil Procedure 23. A party seeking class certification bears the burden of establishing that certification is appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). The decision whether to grant or deny a motion for class certification lies within the broad discretion of the trial court. Id. Rule 23 prescribes a two-step analysis to determine whether class certification is appropriate. First, a plaintiff must satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Clark v. Experian Info. Sols., Inc., 256 Fed. Appx. 818, 821 (7th Cir. 2007); Williams v. Chartwell Fin. Serv., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). The failure to meet any one of these requirements precludes certification of a class. Retired Chicago Police Ass’n, 7 F.3d at 596. Second, the action must also satisfy one of the conditions of Rule 23(b). Clark, 256
4

Fed. Appx. at 821; Williams, 204 F.3d at 760. Plaintiffs seek certification under Rule 23(b)(3), which permits class certification if “questions of law or fact common to class members predominate over any questions affecting only individual members” and class resolution is “superior to other available methods for failure and efficiently adjudicating the controversy.”
Defendants oppose Plaintiffs’ motion on several grounds. First, Defendants argue the class is not readily identifiable because determining whether one is a member of the class requires an individualized factual inquiry. Second, Defendants argue Plaintiffs cannot establish any of the factors listed in Rule 23(a) or (b). The court will address each of these arguments in turn below.
A. Identifiable Class Before reaching the Rule 23 requirements, the court must first determine whether “the class is indeed identifiable.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A class is identifiable if class membership can be readily obtained by reference to objective criteria. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 496 (7th Cir. 2012). If class membership can only be determined by individualized fact-finding or “mini-trials,” then a class action is inappropriate. In re Skelaxin (Metaxalone) Antitrust Lit., 299 F.R.D. 555, 567 (E.D. Tenn. 2014); see also Bledsoe v. Combs, No. NA 99-153C H/G, 2000 WL 681094, at *4 (S.D. Ind. March 14, 2000) (finding proposed class action unmanageable where court could not determine whether one was a member of the class “without hearing evidence on what would amount to the merits of each person’s claim”). Defendants argue the class is not readily identifiable because class membership
5

depends on whether each class member was (1) not on suicide watch and (2) housed in a padded cell where he/she was deprived of bedding, clothing, and hygiene products. Thus, a class member who was housed in a padded cell but received bedding would not be a member of the class.
As Plaintiffs note, the Behavior Watch Forms maintained by the Jail for those taken to the padded cells clearly indicate who was on suicide watch and who was on “behavior watch.” (See Filing Nos. 49-5, 49-8, 49-10, 49-11). Plaintiffs were not on suicide watch during their time in the padded cells. (Sands Dep. at 270-80). Furthermore, Lt. Sands testified that those inmates who were stripped of their clothing were never given bedding and hygiene products as a matter of course. (Id. at 125 (“Q: Do the inmates there being held naked except for a smock receive any mattress or bedding of any type? A: No.”)). Class members are determined simply from their presence in the cell for reasons other than suicide prevention. The court therefore finds the class is sufficiently definite to permit class certification.
B. Rule 23(a) Factors 1. Numerosity
To meet the numerosity requirement, the class must be so large “that joinder of all members is impracticable.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (citing Fed. R. Civ. P. 23(a)). “Generally, where the membership of the proposed class is at least 40, joinder is impracticable and the numerosity requirement is met.” Morris v. Risk Mgmt. Alts., Inc., 203 F.R.D. 336, 342 (N.D. Ill. 2001).
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Plaintiffs represent that they have identified 162 inmates, in addition to class representatives, who were deprived of their clothing, bedding, and hygiene products while held in the padded cells for “behavioral reasons.” (Sands Dep. at 279-80 and Dep. Ex. 26). In addition, Plaintiffs received 25 additional Behavioral Watch Forms from Defendants since Lt. Sands’ deposition. Although Plaintiffs’ proposed class easily exceeds 40, Defendants argue the Plaintiffs failed to establish that joinder of the 162-plus inmates would be impracticable. The court is not persuaded; the sheer number of potential class members leads the court to conclude that joinder would be impracticable.
As for the subclass of inmates subjected to weapons deployment, Defendants argue Plaintiffs have offered no evidence to prove that a subclass is necessary. Plaintiffs represent that over 25 inmates have been identified as having been pepper sprayed while confined in one of the two padded cells. (See Filing No. 66-1, sampling of four Incident Reports). As discovery continues, Plaintiffs believe additional members of the subclass will be found.
Although numerosity is an important consideration in the Rule 23 analysis, the court may look to other factors when determining whether joinder is impracticable, including, inter alia: judicial economy arising from the avoidance of a multiplicity of lawsuits, the financial resources of the class members, the inconvenience of trying individual suits, the size of each plaintiff’s claim, and factors relevant to the practicability of joining all class members. Donovan v. St. Joseph Co. Sheriff, No. 3:11-cv-133-TLS, 2012 U.S. Dist. Lexis 63847, at *6-7 (N.D. Ind. May 3, 2012) (citing 32B Am. Jur. 2d Federal Courts § 1608; 5 Moore’s Fed. Practice – Civil § 23.22[1][a] (3d ed. 2011)).
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These factors persuade the court that joinder of the 25-plus claims in the subclass would be impracticable. See, e.g., EEOC v. Printing Indus. of Metro. Wash., D.C., Inc., 92 F.R.D. 51, 53 (D.C. Cir. 1981) (“[A]s few as 25-30 class members should raise a presumption that joinder would be impracticable, and thus the class should be certified.”). From the court’s standpoint, resolving the subclass members’ claims on an individual basis would strain the court’s resources. Furthermore, the class members are generally disadvantaged financially and thus, do not have the means to prosecute individual lawsuits. And finally, damages are limited; consequently, there would be little incentive to file individual claims. For these reasons, the court finds the subclass meets the numerosity requirement.
2. Commonality To meet the commonality requirement, there must be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(b). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). A common nucleus of operative fact exists where “defendants have engaged in standardized conduct towards members of the proposed class.” Id. In Wal-Mart v. Dukes, the Supreme Court explained: [The plaintiffs’] claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.
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131 S.Ct. 2541, 2551 (2011). Plaintiffs liken their case to Flood v. Dominguez, 270 F.R.D. 413 (N.D. Ind.
2010). There, the plaintiffs challenged the Lake County Jail’s policy and practice of holding pretrial detainees who were just booked into the Jail in holding cells for more than 24 hours as violative of the Due Process Clause of the Fourteenth Amendment. Id. at 415. The purpose of the holding cells was to detain arrestees while the Jail determined where they would be housed. Id. Each cell had a concrete floor, concrete benches around the perimeter, and a single toilet, but no mattress or bed. Id.
Plaintiffs sought to certify a class of detainees housed in the holding cells for more than 24 hours. Id. In granting the motion, the district court found the Plaintiffs established the commonality requirement. Id. at 418. It reasoned: “Plaintiffs’ core complaint—that the Jail’s policy of keeping detainees in holding cells for over 24 hours without a mattress or bed is unconstitutional—is common to the entire class.” Id. The court rejected the defendant’s argument that the potential variation in damages defeated commonality. “[T]he Seventh Circuit has been clear that variations in damages will not defeat class certification.” Id. (citing Arreola v. Godinez, 546 F.3d 788, 800-01 (7th Cir. 2008)).
Plaintiffs argue Flood is directly on point because “this case is marked by common constitutional violations caused by institution-wide practices officially condoned by the jail administration.” (Filing No. 56, Plaintiffs’ Memorandum at 40). Defendants distinguish Flood because, unlike the policy or practice in Flood, “this case is all about individual circumstances.” To drive their point home, Defendants rely upon
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Secreti v. PTS of Am., LLC, No. 3-13-1065, 2015 WL 3505146 (M.D. Tenn. June 3, 2015). The complaint in Secreti alleged PTS of America used excessive force against the plaintiff and other similarly situated inmates by placing them in full restraints for more than 48 continuous hours. Id. at *1. The plaintiff also asserted PTS failed to provide private or adequate access to toilet facilities, failed to provide personal hygiene items, failed to provide proper food and drink, deprived him of access to prescribed medication and medical staff, and deprived him of adequate sleep and exercise during transport, in violation of the plaintiff’s and the class’s Fourth, Eighth, and Fourteenth Amendment rights. Id. The plaintiff moved for class certification, defining the class as follows:
[A]ll inmates including, without limitation, adults and juveniles, males and females, pretrial detainees, sentenced prisoners, state mental hospital inmates, and immigration detainees who were transported by PTS of America, LLC and/or its agents or employees on behalf of local or state governments, or the federal government, since September 30, 2012 restrained for more than 48 continuous hours. Id. In analyzing plaintiff’s claim the district court observed, “Before the Court can determine whether a class member’s constitutional rights have been violated by such a policy, practice or custom, it must balance any alleged policy, custom or practice of Defendant against legitimate penological justification for such policy and must uphold any such policy if it is reasonably related to legitimate penological interests.” Id. at *3 (citing Florence v. Bd. of Chosen Freeholders, 132 S.Ct. 1510, 1515 (2012)). Applying the Florence balancing test to the plaintiff’s proposed class, the court denied the plaintiff’s motion. Specifically with regard to the commonality requirement, the court
10

found that the balance of interests would differ based on the status of the inmates—i.e., the difference between a pre-trial detainee and a convicted prisoner—and would require the court to balance the interests as to each individual and not the class as a whole. Id. The court further found that the defendant could also assert different defenses as to each inmate, based upon the inmate’s particular circumstances. Id. Accordingly, because the court could not resolve the issue central to the validity of each one of the class claims in one stroke, the court found the plaintiff failed to satisfy the commonality requirement of Rule 23. Id. at *4.
Defendants argue Plaintiffs cannot establish commonality for the same reasons the plaintiff in Secreti could not establish commonality. They explain: “The balancing nature of the inquiry of whether the Defendants’ actions served a legitimate penological interest would depend on the facts and circumstances of each Plaintiffs’ interaction with the Defendants’ officers.” (Filing No. 61, Defendants’ Response at 44). They further point out the proposed class contains both pre-trial detainees and convicted prisoners. They maintain this difference in inmate status is enough to defeat the commonality requirement.
The court finds Plaintiffs’ case is more akin to Flood than Secreti. Plaintiffs do not challenge the reasons for their placement in a padded cell. Rather, they challenge the conditions of their confinement in the padded cell—no clothing (but a smock), no bedding or hygiene products—as punitive and out of balance with any legitimate penological interest. See Bell v. Wolfish, 441 U.S. 520, 537 (1979) (“[P]unitive measures . . . may not constitutionally be imposed prior to a determination of guilt.”). This inquiry
11

does not depend on any individualized determination. In sum, Plaintiffs’ core complaint—where Defendants’ “stripped out” policy or practice is unconstitutionally punitive—is common to the entire class. Blihovde v. St. Croix Co., Wis., 219 F.R.D. 607, 616 (W.D. Wis. 2003) (“[A] single common issue is sufficient to satisfy [the commonality] requirement.”).
The court further finds that the proposed class may consist of both pre-trial detainees and convicted prisoners. Although conditions of confinement claims are brought under the Fourteenth Amendment’s Due Process Clause, and convicted prisoner’s claims are brought under the Eighth Amendment’s Cruel and Unusual Punishment Clause, the Seventh Circuit “appl[ies] the same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth Amendment (convicted prisoners) ‘without differentiation.’” Board v. Farnham, Jr., 394 F.3d 469, 478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)); see also Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009) (“[A]nything that would violate the Eighth Amendment would also violate the Fourteenth Amendment.”). Thus, the fact that the class contains both pre-trial detainees and convicted prisoners is not an impediment to certification, as each member of the putative class will have to prove the same facts and the same legal theories to prevail on his or her claim. Furthermore, Plaintiffs seek certification for liability purposes only, leaving the class members’ individual damages determination for another day. Flood, 270 F.R.D. at 418 (“Each class member must prove that the Jail’s policies and widespread practices caused the unconstitutional
12

conditions of confinement in the holding cells.” (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978))).
3. Typicality The next issue concerns whether the claims of the class representative are typical of the class as a whole. See Fed. R. Civ. P. 23(a)(3). A claim is typical of the class if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” Keele, 149 F.3d at 595 (citation and internal quotation omitted). Typicality and commonality are closely related; typicality, however, focuses on the relationship between the class representative and the class as a whole. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Typicality is important because the class representative, in pursuing his or her own claims, is also advancing the interests of the class. In re General Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, 312 (7th Cir. 2007). Defendants argue the Plaintiffs’ claims are not typical of the class because each claim depends upon the individualized interaction each plaintiff or proposed class member had with Jail Personnel. In other words, they argue, Plaintiffs’ pursuit of their own individual claims will not advance the interests of the proposed class. The court does not agree. “[S]imilarity in legal theory may control even in the face of differences of fact.” Id. Here, Plaintiffs challenge the same jail policy and practice and will rely on the same legal theories to prove their claim as the proposed class. Plaintiffs have met the typicality requirement.
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4. Adequacy of Representation The final requirement of Rule 23 is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To be an adequate representative of a class, a plaintiff (1) must have a sufficient stake in the outcome to ensure zealous advocacy; (2) must not have antagonistic or conflicting claims with other class members; and (3) must have counsel who are experienced, qualified, and generally able to conduct the litigation. Harris v. Circuit City Stores, Inc., No. 2008 WL 400862, at *7 (N.D. Ill. 2008) (citing Retired Chicago Police Ass’n, 7 F.3d at 594). Defendants do not challenge the qualification of Plaintiffs’ counsel. Instead, they argue there is the potential for conflicts among the Plaintiffs proposed as class representatives. They cite as an example class representative Adam Walker, who, according to the Complaint, was tased seven times. (Compl. ¶ 101). They argue: “Walker’s presentation of that claim, among other claims, could make the pursuit of all elements of his claim antagonistic to the claim of the inmate who spent two hours in the padded cell.” (Defendants’ Response at 51). The court fails to see the conflict here. Walker’s damages may be more, but both Walker and the class member would be subject to the same “stripped out” policy. C. Rule 23(b) Factors In addition to meeting the class certification requirements under Rule 23(a), Plaintiffs’ proposed class must also satisfy the requirements of one of the three subsections of Rule 23(b). Here, Plaintiffs propose that certification is appropriate under
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Rule 23(b)(3), which requires that: (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3).
1. Predominance Under the predominance requirement of Rule 23(b)(3), common questions of law or fact must predominate; in other words, “there must be a common nucleus of operative facts applicable to the entire class.” Ziemack v. Centel Corp., 163 F.R.D. 530, 535-36 (N.D. Ill. 1995). Defendants argue the issues in this case are too individualized and fact-sensitive to allow class certification, particularly where, as here, multiple Defendants are sued in their individual and official capacities. Plaintiffs reiterate that they seek certification on the issue of liability— i.e., whether Defendants’ “stripped out” policy or practice violates the Plaintiffs’ constitutional rights by depriving them of basic human necessities. Thus, the issues of concern to Defendants, such as individual damages and the defense of qualified immunity, will be considered (assuming liability is found) in separate and individualized proceedings. The court agrees with the Plaintiffs. “‘Courts routinely address conditions of confinement claims in class actions.’” Flood, 270 F.R.D. at 420 (quoting Dunn v. City of Chicago, 231 F.R.D. 367, 377 (N.D. Ill. 2005)). This is especially true where, as here, the conditions stem from jail policies or practices that are uniformly applied to all inmates. Id. The court therefore finds that, notwithstanding any individual damages
15

determinations, the constitutionality of the Defendants’ “stripped out” policy and practice will be the predominate factor in determining liability. Flood v. Dominguez, No. 2:08 CV 153 PPS PRC, 2011 WL 238265, at *3 (N.D. Ind. Jan. 21, 2011) (certifying the class despite individualized nature of the injuries).
2. Superiority Under Rule 23(b)(3), a class action must also be superior to other available methods for the fair and efficient adjudication of the controversy. Considerations relevant to the superiority of a class action over individual lawsuits include: (A) the class members’ interest 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 members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). Defendants argue a class action lacks practical utility because the court will have to conduct separate hearings to determine each class member’s damages. The court is not persuaded by this argument. Because common issues do predominate, resolution of those common claims is more efficient than multiple individual actions dealing with those claims. Also, because many potential class members would likely recover little damages, they are unlikely to prosecute individual claims absent the cost-sharing efficiencies offered by a class action. The court therefore finds that a class action is a superior method of litigating this case.
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III. Conclusion The court finds the proposed class meets the requirements of Federal Rule of Civil
Procedure 23(a) and 23(b)(3). Therefore, Plaintiffs’ Motion for Class Certification (Filing No. 49) is GRANTED. SO ORDERED this 16th day of February 2016.
__________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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 Case 4:14-cv-00054-TAB-RLY Document 1 Filed 06/12/14 Page 1 of 19 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

ELECTRONICALLY FILED

TABITHA GENTRY

)

1429 Locust St.

)

New Albany, IN 47150

)

)

and

)

)

VINCENT MINTON

)

11302 Nabb New Washington Rd

)

Nabb, IN 47147

)

)

and

)

)

MICHAEL HERRON

)

418 Howser Rd

)

Henryville, IN 47126

)

)

and

)

)

ADAM WALKER

)

6090 State Rd. 62

)

Apt. 25

)

Georgetown, IN 47122

)

)

PLAINTIFFS

)

)

vs.

)

CIVIL ACTION NO.

)

FLOYD COUNTY, INDIANA

)

4:14-CV-00054

SERVE: Mark Seabrook

)

County Commissioner

)

City-County Building

)

311 West First Street

)

New Albany, IN 47150 )

)

and

)

)

Case 4:14-cv-00054-TAB-RLY Document 1 Filed 06/12/14 Page 2 of 19 PageID #: 2

DARRELL MILLS,

)

Individually, and in his capacity as

)

Floyd County Sheriff

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

)

)

TIFFANY FRANS, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

OFFICER ATHERTON, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

RYAN RAINEY, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

OFFICERS JOHN/JANE DOE, individually )

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

DEFENDANTS

)

* * * * * * *

	  

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Case 4:14-cv-00054-TAB-RLY Document 1 Filed 06/12/14 Page 3 of 19 PageID #: 3
COMPLAINT INTRODUCTION 1. Plaintiffs Tabitha Gentry, Vincent Minton, Michael Herron, and Adam Walker file this action in their individual capacities and on behalf of all persons stripped, held naked, tortured, humiliated, and abused by Defendants as a regular part of Defendants' policies, procedures, and protocol. 2. This class of people includes all individuals who were so treated from June 12, 2012, to the present. 3. Such treatment has been regularly perpetrated by Defendants and there are potentially hundreds of members of this class. 4. There are questions of law and fact in this case that are common to all members of this class. 5. Plaintiffs' claims are typical of those of the class, and they will fairly and adequately protect the interests of this class.
JURISDICTION AND VENUE 6. Plaintiffs, and all other similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. §1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States. 7. This Court has jurisdiction of this case pursuant to the provisions of 28 U.S.C. §1331 and §1343.

	  

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Case 4:14-cv-00054-TAB-RLY Document 1 Filed 06/12/14 Page 4 of 19 PageID #: 4
8. Plaintiffs and the other members of the class also seek declaratory and injunctive relief.
9. As Floyd County, Indiana is the location of all acts on which Plaintiff's claims are based, venue is proper in this Court.
CLASS ACTION 10. Plaintiffs bring this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. 11. The class consists of all individuals who, since June 12, 2013, were forcibly stripped of their clothing, and kept in a state of undress for prolonged periods of time, whether as a punitive measure, or as a torture method, or under the pretext of a search and seizure, or any other reason. 12. This class also consists of individuals who were subjected to the use of pepper spray, taser, or other unnecessary and unwarranted means of excessive force while being held under these conditions. 13. Plaintiffs and other members of the class were subjected to such treatment despite the absence of any reasonable, individualized suspicion or probable cause required by law. 14. Plaintiffs will fairly and adequately protect the interests of all class members. They are members of the class and their claims are typical of the claims of all class members. 15. Plaintiffs were harmed and offended by the treatment accorded them and will aggressively pursue the interests of the entire class.

	  

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Case 4:14-cv-00054-TAB-RLY Document 1 Filed 06/12/14 Page 5 of 19 PageID #: 5
16. Plaintiffs’ interest in obtaining injunctive relief and actual and punitive damages for the violations of their constitutional rights and privileges are consistent with and not antagonistic of those of any other person within the class.
17. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly forcibly remove the clothing of arrestees/detainees, and leave them without clothing for prolonged periods of time, despite the absence of any reasonable, individualized suspicion, probable cause, threat, security interest, or provocation that would justify such an extreme sanction.
18. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly expose such detainees’ naked bodies to officers of the opposite sex either through conducting the forcible removal of clothing, through the subsequent withholding of clothing while in view of Jail employees, or through video surveillance of detainees’ naked bodies.
19. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly expose such detainees’ naked bodies to harmful and extremely offensive touching.
20. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly subject detainees to unnecessary, unwarranted, and excessive uses of force during and following the removal of their clothing despite the absence of any provocation, legitimate security or law enforcement interest, probable cause, or articulable individualized suspicion.

	  

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21. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly deprive such detainees of access to bathroom facilities, and force detainees to void into a floor drain.
22. In addition, upon information and belief, video footage was taken of the above abuses. This video footage, which includes clear and graphic depictions of Plaintiffs' naked bodies, is available to other members of Floyd County government, and to the general public.1
23. Such abuses violate the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. §1983, and clearly established law.
24. Plaintiffs and the members of the class are entitled to declaratory and injunctive relief and an award of compensatory and punitive damages.
25. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It would be virtually impossible for all class members to intervene as parties-plaintiffs in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.

NATURE OF DEFENDANTS' CONDUCT
26. The conduct of the Defendants constitutes torture, and violates well-
established, longstanding national and international norms.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
1	   Video footage of Plaintiff Tabitha Gentry was obtained through a request pursuant to the Indiana Access to Public Records Act, IC § 5-14-3.

	  

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27. Defendants' treatment of Plaintiffs and other class members is intolerable in a civilized society, and presents a marked departure from the standard to which the Western world adheres for the treatment of prisoners of war during wartime, let alone the standard of acceptable treatment for American citizens on American soil.
28. Defendants engaged in the conduct described below under color of the law of the State of Indiana and Floyd County.
29. The offenses described below resulted from the failure of Defendants Floyd County and Darrell Mills to employ qualified persons for positions of authority, to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of American citizens.
30. Defendants’ conduct was intentional or grossly negligent, or indicated active malice toward Plaintiffs and the class, or constitutes a total and reckless disregard for and indifference to Plaintiffs’ constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiffs and the class are entitled to recover.
PARTIES 31. Plaintiff Tabitha Gentry (“Gentry”) is, and at all times relevant herein was, a resident of Floyd County, Indiana. 32. Plaintiff Vincent Minton (“Minton”) is, and at all times relevant herein was, a resident of Scott County, Indiana. 33. Plaintiff Michael Herron (“Herron”) is, and at all times relevant herein was, a resident of Clark County, Indiana.

	  

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34. Plaintiff Adam Walker (“Walker”) is, and at all times relevant herein was, a resident of Floyd County, Indiana.
35. Defendant Floyd County, Indiana is responsible for the conditions in the Floyd County Jail, for the establishment of policies either formally or by custom and practice, and for the employment, training, supervision and conduct of the officers and employees of the Jail.
36. At all times relevant herein, Defendant Darrell Mills (“Mills”), Sheriff of Floyd County, was responsible for the conditions in the Floyd County Jail, for the establishment of policies either formally or by custom and practice, and for the employment, training, supervision and conduct of the officers and employees of the Jail. Mills is named in his individual capacity and his official capacity as Floyd County Sheriff.
37. At all times relevant herein, Defendants Atherton, Frans, and Rainey were employed as corrections officers in the Floyd County Jail.
38. Defendant Officers John and Jane Does, are individuals who were employed by the Floyd County Sheriff’s Department and participated in depriving the class members of constitutional guarantees, or were present for and otherwise failed to intervene in order to protect Plaintiffs’ constitutional rights.
FACTUAL ALLEGATIONS Plaintiff Tabitha Gentry
39. Plaintiff Tabitha Gentry is a thirty-two-year-old mother of four. 40. On March 30, 2014 at approximately 4:00 a.m., Gentry was arrested on suspicion of public intoxication, disorderly conduct, and resisting law enforcement, all misdemeanor offenses.

	  

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41. Indiana State Police transported Gentry to the Floyd County Jail. 42. Upon arriving at the Floyd County Jail, Gentry was escorted, in handcuffs, to the “remand room.” 43. While waiting to be booked, Gentry had a verbal altercation with three Defendant officers. 44. During this verbal exchange, Gentry was seated on a bench and her hands were cuffed behind her back. 45. Defendants Frans, Atherton, and Rainey then ceased booking Gentry into the Jail and grabbed Gentry by the neck, arms, and head, and forcibly escorted her into a “padded cell,” identified on surveillance video as “PD-2.” 46. Defendants then forced Gentry to the floor, held her down, and began to forcibly remove her shoes, pants and underwear. 47. After stripping her from the waist down, officers removed Gentry’s handcuffs and began to remove her shirt and bra. 48. While removing Gentry’s shirt and bra, Defendant Rainey pressed a taser to her back and threatened to tase her. 49. Male officers, including Defendant Rainey, were present for and participated in stripping Gentry. 50. At approximately 4:15 a.m. officers left the cell, and Gentry was kept naked and alone with only a small blanket (referred to by Jail staff as a “smock”) to cover herself. 51. After approximately 20 minutes, Gentry began to bang on the cell door and ask officers for clothing.

	  

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52. An unknown Defendant officer responded that if Gentry did not “shut up,” he was going to pepper spray her.
53. At approximately 5:12 a.m., an unknown Defendant officer sprayed pepper spray into the cell.
54. Gentry’s naked body was exposed to the chemical spray in the closed cell for approximately forty (40) minutes.
55. At approximately 6:00 a.m., Gentry was handcuffed behind her back and taken to a washing station to wash the pepper spray off her face.
56. Because she was handcuffed, Gentry was unable to hold the smock so that her body was adequately covered. While walking to and from the wash station, Gentry’s breasts and genitals were exposed to male officers and, upon information and belief, male inmates.
57. At 6:20 a.m., Gentry was returned to her cell, still naked with a wet “smock.” 58. Gentry remained in the cell, naked, for approximately five (5) hours. 59. During the time Gentry was in the cell she was deprived of toilet facilities and forced to urinated into a floor drain. 60. At approximately 11:00 a.m. officers provided Gentry with a standard-issue jumpsuit and she was booked into the Jail.
Plaintiff Vincent Minton 61. Plaintiff Vincent Minton is a twenty-three year old resident of the State of Indiana and employee of a local music store. 62. On February 28, 2013, Minton was arrested by New Albany police officers on suspicion of public intoxication, intimidation, and disorderly conduct, all misdemeanors. 63. Minton was brought to the Floyd County Jail at approximately 2:45 a.m.

	  

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64. Minton exercised his right against self-incrimination, and refused to respond to questions posed by Jail officers.
65. Minton was subsequently put into a “padded cell.” 66. After some time alone in the cell, Minton began banging on the door and requesting a phone call or access to a lawyer. 67. In response, two unidentified Defendant officers came into the cell, pushed Minton against the wall, and then to the ground. 68. The two Defendant officers proceeded to forcibly remove Minton’s shoes, socks, pants, underwear, and shirt. 69. One Defendant officer then deployed his taser, striking Plaintiff in the buttocks. 70. The officers then left the cell without providing Minton with anything with which to cover his naked body. 71. Approximately thirty (30) minutes later, officers provided Minton with a “smock” with which to cover himself. 72. The cell did not contain a toilet, and Minton was forced to urinate into a drain in the floor. 73. Minton was held for several hours before officers provided him with any clothing.
Plaintiff Michael Herron 74. Plaintiff Michael Herron is a thirty-six-year-old Army veteran, truck driver, and father of two.

	  

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75. On January 5, 2014, Herron was arrested by New Albany police officers on suspicion of public intoxication and disorderly conduct.
76. Herron was taken to the Floyd County Jail in handcuffs at approximately 1:30 a.m.
77. While being booked into the Jail, Herron questioned unidentified Defendant officers about their processes and procedures.
78. Defendant officers then interrupted the booking process and instructed Herron to get up. They walked him to the “padded cell.”
79. After some time in the cell, Herron began to knock on the door and asked to make a phone call.
80. Officers told Herron to “go to sleep,” although there was no mat or cot in the cell.
81. Herron was forced to urinate in a drain in the floor. 82. Following an additional passage of time, Herron began banging on the door and wall of the cell. 83. Unknown Defendant officers then entered the cell and directed Herron to face the wall and then get on the ground. 84. Herron complied with officers’ orders and was then held down by three male and one female officer by his legs, neck, and arms. 85. Defendant officers then removed his shoes, socks, pants, underwear, and shirt. 86. Defendants left the cell and gave Herron a “smock” which was too small to adequately cover himself.

	  

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87. One unidentified officer instructed Herron “go to sleep or I’ll pepper spray you.”
88. Herron attempted to cover himself with the smock while laying on the floor of the cell, however the smock did not adequately cover his body.
89. At approximately 8:00 a.m., Herron was given his street clothes, and was later booked and released.
Plaintiff Adam Walker 90. Plaintiff Adam Walker is a thirty-one-year-old Army veteran, small business owner, and a resident of the State of Indiana. 91. On May 24, 2014, at approximately 1:00 a.m., Walker was arrested by Floyd County Sheriff Deputies on suspicion of operating a vehicle while intoxicated, a misdemeanor. 92. Walker disputed the charge and agreed to voluntarily accompany the Deputy to the Floyd County Jail to take a breathalyzer test. 93. Walker blew into the breathalyzer three times over the course of one hour. Each time the machine gave an error message. 94. Walker was cooperative and was not handcuffed during this time. 95. While sitting on a bench, three unidentified Defendant officers approached Walker and one officer winked at him. 96. Walker asked the officer why he winked at him, and the officer denied winking at him. 97. The two argued briefly over whether the officer winked at him, when the three deputies descended on Walker, threw him to the ground, and handcuffed him.

	  

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98. While handcuffed, officers tased Walker seven times and choked him until he lost consciousness.
99. Walker regained consciousness while being dragged into the “padded cell.” 100. Defendants then forcibly removed Walker’s shoes, socks, and jeans. Then, they removed his handcuffs and removed his shirt. 101. Defendants left Walker alone in the cell with nothing to cover himself. 102. After a period of time, Walker began to beat on the door and complain that the room had no heat and he was cold. In response, officers provided Walker with a “smock.” 103. After the next shift of officers arrived at the Jail, Walker asked to use a bathroom. He was told that the drain in the floor was his bathroom. 104. After approximately 18 hours in the cell, the officer who winked at Walker the night before came to the door and asked, “Are you docile?” Walker was then given a prison jumpsuit to wear and a mat to lay on. 105. While in the Jail, Walker also witnessed another detainee get forcibly stripped by officers and put into another padded cell. During the course of this detainee’s forcible striping, Walker witnessed the officers pull the detainee’s feet out from under him so that the detainee fell to the floor headfirst and knocked out his teeth. 106. Walker suffers from a variety of combat injuries, including a gunshot wound, spinal compression fracture, traumatic brain injury, and post-traumatic stress. 107. Walker was held in the booking area for four (4) days. During this time, Jail staff refused to provide him with medications, including anti-seizure medication and antibiotics. When Walker advised officers that he needed seizure medication, an officer told him, “Well, you’d better not have a seizure.”

	  

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LEGAL CLAIMS 42 U.S.C. §1983 108. Defendants were acting under the color of state law when they undertook the actions described above. 109. Defendants deprived Plaintiffs of their rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. 110. The abuses to which Plaintiffs and the class were subjected, as described above, were part of a continuing pattern of misconduct and were the result of Defendant's written policies or procedures and/or unwritten customs and practices that are systematically applied to arrestees/detainees. 111. As a state actor, Defendant's practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for the constitutional and common law rights of the citizens of Indiana, including Plaintiffs and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such practices. 112. As a result of the foregoing, Plaintiffs and the class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following non-exhaustive list of rights and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983: a. Their right to be secure in their person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments; b. Their right to privacy in their person against unreasonable intrusions under the Fourth, Fifth, Ninth and Fourteenth Amendments;

	  

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c. Their right to the equal protection of the law, procedural due process, and substantive due process secured by the Fifth and Fourteenth Amendment;
d. The right to be free of cruel and unusual punishment secured by the Eighth Amendment; and
e. The right to be free of excessive force.
113. Defendant's conduct also violated concomitant rights guaranteed by the Constitution and common laws of Indiana.
114. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' abuse of Plaintiffs and the members of the class was intentional, wanton and malicious, and indicative of Defendants’ total and reckless disregard of/deliberate indifference to the rights of Plaintiffs and the class.
Failure to Train 115. In addition, Defendants were negligent and/or deliberately indifferent to Defendant officers’ need for training regarding unlawful searches and seizures, the reasonable use of force, and the rights of pre-trial arrestees/detainees. 116. As a result of Defendants’ failure to train the officers, the officers violated Plaintiffs’ constitutional rights. 117. As a direct and proximate result of the aforementioned conduct, Plaintiffs have suffered physical harm, emotional distress, embarrassment, humiliation, and mental anguish.
Damages 118. Plaintiffs and the members of the class were unjustifiably and unconstitutionally treated in a manner that generated tremendous and overwhelming

	  

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embarrassment, humiliation, and mental and emotional distress. As a result, they have suffered, and are entitled to recover, actual damages.
119. Furthermore, Defendants' violations of the constitutional and common law rights of the Plaintiffs and the class were cruel, malicious and evinced a total and reckless disregard for and indifference to those rights, entitling Plaintiffs and the class to recover punitive damages from Defendant in order to deter such conduct in the future.
Declaratory Judgment and Permanent Injunction 120. In addition to the foregoing, Plaintiffs and the class request that this Court issue a declaratory judgment deeming unconstitutional any and all written policies or procedures, and/or unwritten customs or practices under which they were forced to be submitted to Defendants' humiliating and/or torturous practices, and further request that this Court permanently enjoin Defendants from following or enforcing such written policies or procedures, and/or unwritten customs or practices subjecting detainees to gratuitous, unnecessary humiliation, excessive punishment, torture, and/or unreasonable search and seizures. WHEREFORE, Plaintiffs and the class they represent request: A. That this action proceed as a class action under Fed. R. Civ. P. 23; B. a trial by jury; C. an award of actual and punitive damages to Plaintiffs and all members of the class; D. the declaratory and injunctive relief requested herein; and E. an award of their costs and attorney fees and all other relief to which they are entitled under law or in equity.

	  

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Respectfully submitted,
/s/ Laura E. Landenwich Laura E. Landenwich, # 27709-22 Daniel J. Canon CLAY DANIEL WALTON & ADAMS PLC 101 Meidinger Tower 462 South Fourth Street Louisville, KY 40202 (502) 561-2005 Counsel for Plaintiff

	  

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 Case 4:14-cv-00054-TAB-RLY Document 125-2 Filed 07/23/17 Page 1 of 25 PageID #: 1698

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
ELECTRONICALLY FILED

TABITHA GENTRY, ET AL.

)

)

PLAINTIFFS

)

)

vs.

)

)

FLOYD COUNTY, INDIANA, ET AL. )

)

DEFENDANTS

)

CIVIL ACTION NO. 4:14-CV-00054-RLY-TAB

* * * * * * *

SETTLEMENT AGREEMENT

Plaintiffs, by and through their counsel, and Defendants Floyd County, Indiana, Darrell Mills, Tiffany Frans, Megan Atherton, Ryan Rainey, and Officers John/Jane Doe, by and through their counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for the Settlement of the claims herein described;
WHEREAS, Plaintiffs filed the above-captioned class action lawsuit ("Litigation") against Defendants alleging that Defendants violated Plaintiffs' constitutional rights under color of state law by incarcerating them and others similarly situated in the padded cells of the Floyd County Jail, where they claim to have been subjected to inhumane conditions of confinement;

WHEREAS, Defendants have denied and continue to deny Plaintiffs' claims, and Defendants deny any wrongdoing or liability of any kind to Plaintiffs or to any member of the class (as defined hereinafter).

WHEREAS, the Parties to this Settlement Agreement have conducted and continue to conduct a thorough examination and investigation of the facts and law relating to the matters in this Litigation;
WHEREAS, Plaintiffs and Defendants have concluded that Settlement is desirable in order to avoid the time, expense, and inherent uncertainties of prolonged litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to the alleged conduct involved in this Litigation;

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WHEREAS, Plaintiffs and Class Counsel (as defined hereinafter) recognize the costs and risks of prosecuting this Litigation, and believe that it is in their interest, and the interest of all Class Members, to resolve this Litigation, and any and all claims against Defendants, as well as all county employees or officials who may have devised, promulgated or enforced the policy (as defined hereinafter) or participated in the conduct that is the subject of this Settlement Agreement;
WHEREAS, substantial, adversarial settlement negotiations have taken place between the Parties, including mediation conducted by United States Magistrate Judge Tim A. Baker, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein;
WHEREAS, the Parties believe that this Settlement Agreement offers significant benefits to Class Members and is fair, reasonable, adequate and in the best interest of Class Members;
WHEREAS, this Settlement Agreement is made and entered into by and among Defendants Floyd County, Indiana, Darrell Mills, Tiffany Frans, Megan Atherton, Ryan Rainey, and Officers John/Jane Doe and Plaintiffs Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Anna Chastain, and Janelle South, individually and on behalf of a class of similarly situated persons (the "Class") for purposes of settlement. The Class Members are defined as:
All inmates confined from June 12, 2012, to present in the Floyd County Jail who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa.
A. Class Counsel. "Class Counsel" shall mean: Laura E. Landenwich, Theodore W. Walton, and Daniel J. Canon of Clay Daniel Walton & Adams PLC, 462 South Fourth Street, Suite 101, Louisville, Kentucky 40202.
B. Claim Form. "Claim Form" shall mean a form in substantially the same form as that attached hereto as Exhibit A.
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C. Class Members. "Class Members" refers to all persons who, during the Class Period, who were not identified as suicidal, but who were confined in a padded cell and deprived of clothing, bedding and hygiene products in the Floyd County Jail pursuant to the “Combative Subjects” policy, as identified in the summary attached as Exhibit B. Individuals not identified in Exhibit B, but who, during the Claims Period, are identified through Jail records as individuals held pursuant to the Combative Subjects policy are also Class Members.
D. Claims Period. "Claims Period" shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date (defined below) until the date 45 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal Holiday.
E. Class Period. "Class Period" refers to the period between June 12, 2012 and the date this Settlement Agreement is approved by the Court.
F. Class List. "Class List" shall be a list of the names and last known mailing addresses of all members of the Settlement Class as identified in the summary attached as Exhibit B.
G. Class Notice. "Class Notice" shall mean the Court-approved form of notice in substantially the same form as Exhibit C.
H. Class Representatives. "Class Representatives" shall mean Plaintiffs Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Anna Chastain, and Janelle South.
I. Class Settlement. "Class Settlement" shall mean the terms provided in this Settlement Agreement.
J. Court. "Court" shall mean the United States District Court for the Southern District of Indiana, New Albany Division, The Honorable Richard L. Young, or his duly appointed or designated successor.
K. Defendants. "Defendants" shall mean Floyd County, Indiana, Darrell Mills, Tiffany Frans, Megan Atherton, Ryan Rainey, and Officers John/Jane Doe, as well as all county employees or officials who may have devised, promulgated or enforced the Combative Subjects Policy (as defined hereinafter) or participated in the conduct that is the subject of this Settlement Agreement.
L. Defendants’ Counsel. "Defendants’ Counsel" shall mean R. Jeffrey Lowe, Kightlinger & Gray, LLP, Bonterra Building, Suite 200, 3620 Blackiston
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Blvd., New Albany, IN 47150.
M. Distribution Amount. "Distribution Amount" shall mean the amount available from the Settlement Fund after payment of attorneys' fees and expenses and incentive awards to Class Representatives.
N. Effective Date. "Effective Date" shall mean thirty (30) days from the date on which the settlement has finally been approved by the Court, and/or the date on which any appeals from final approval are resolved, whichever is later.
O. Final Approval Hearing. "Final Approval Hearing" shall mean the hearing at which the Court will consider and finally decide whether to enter the Final Judgment.
P. Final Judgment. "Final Judgment" shall mean the Court order that ultimately certifies the Class, approves this Settlement Agreement, approves payment of attorneys' fees and expenses, approves incentive awards to Class Representatives and the distribution amount, and makes such other final rulings as are contemplated by this Settlement Agreement.
Q. Jail. “Jail” shall mean the Floyd County Jail in New Albany, Indiana.
R. Litigation. "Litigation" shall mean the above captioned lawsuit pending in the United States District Court for the Southern District of Indiana, New Albany Division as No. 4:14-CV-00054-RLY-TAB.
S. Magistrate Judge. The "Magistrate Judge" shall mean United States Magistrate Judge for the Southern District of Indiana Tim A. Baker.
T. Medicare. “Medicare” means the Centers for Medicare and Medicaid Program, the Medicare Program, and any Medicare Advantage Program
U. Medicare Secondary Payer Act. “Medicare Secondary Payer Act” means the terms and conditions set forth in 42 U.S.C. S. 1395y(b) et seq.
V. Notice Program. "Notice Program" shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
W. Notice Date. Notice Date shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the terms herein.
X. Objection Date. "Objection Date" shall mean the date agreed upon by the Parties or otherwise ordered by the Court by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any
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require statements, proof, or other materials and/or argument.
Y. Opt-Out Deadline. "Opt-Out Deadline" shall mean the date agreed upon by the Plaintiffs and Defendant or otherwise ordered by the Court by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the Settlement must complete the acts necessary to properly effect such election to optout.
Z. Opt-Out List. "Opt-Out List" shall mean a written list prepared by the Settlement Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
AA. Opt-Out Notice. Opt-Out Notice or an Opt-Out Form shall mean a Request for Exclusion from the Settlement Class by a Settlement Class Member.
BB. Parties. "Parties" shall mean the Plaintiffs and Defendants in this case.
CC. Plaintiffs. "Plaintiffs" shall mean Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Anna Chastain, and Janelle South, individually and on behalf of the Class Members.
DD. Policy. “Policy” shall mean the Combative Subjects policy attached as Exhibit D.
EE. Preliminary Approval Order. "Preliminary Approval Order" shall mean the Order of the Court initially approving this Settlement Agreement and conditionally certifying a provisional Settlement Class in notably the same form as Exhibit F.
FF. Release. "Release" shall mean the release described in Section VII herein.
GG. Released Claims. "Released Claims" shall mean and include any and all claims or causes of action by or on behalf of any and all Plaintiffs and Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assignees) that are released from bringing any claim or cause of action by the Release described in Section VII herein.
HH. Released Parties. "Released Parties" shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein.
II. Request for Exclusion. "Request for Exclusion" shall mean any request by any Settlement Class Member for exclusion from or to opt-out from the Class in compliance with Section V herein.
JJ. Settlement. "Settlement" shall mean the agreement by the Plaintiffs, individually and on behalf of the Class and Defendants to resolve the Litigation, the terms
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of which have been memorialized and agreed upon in this Settlement Agreement.
KK. Settlement Administrator. "Settlement Administrator" shall mean the qualified person or entity selected by the Parties and designated in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiffs nor Defendants shall have any responsibility for any acts of omissions of the Settlement Administrator. The Parties have agreed to select Dahl Administration as the Settlement Administrator.
LL. Settlement Agreement. "Settlement Agreement" shall mean this Settlement Agreement, including any amendment hereto pursuant to Section X.D hereof, and all the exhibits attached hereto.
MM. Settlement Class Members. "Settlement Class Members" shall mean all persons in the Class who do not exclude themselves pursuant to Section V herein and who make a claim to receive a portion of the Distribution Amount.
NN. Settlement Fund. "Settlement Fund" shall mean a fund or funds, governed by terms to be agreed to between Class Counsel and Defendant's Counsel which shall be reserved specifically for this case and be deposited in an account at a bank opened by the Settlement Administrator within seven (7) days from entry of the Final Judgment. Defendant shall provide documentation verifying that the Settlement Amount is available for distribution to the Settlement Class Members, has been specifically reserved for the sole purpose of this case, and will not be utilized for any other payments or purposes.
OO. Settlement Amount. "Settlement Amount" shall mean the amount of One Million Two Hundred Thirty Thousand and 00/100 Dollars ($1,230,000.00) to be paid by or on behalf of Defendants.
II. REQUIRED EVENTS
Promptly after execution of this Settlement Agreement by all Parties:
1. Class Counsel and Defendants’ Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment.
2. The Parties to the this Settlement Agreement shall jointly move for entry of a Preliminary Approval order in substantially the same form as Exhibit F, attached hereto, which by its terms shall:
(a) Preliminarily approve the terms of the Settlement Agreement as within the range of fair, reasonable, and adequate Settlement for purposes of issuing notice;
(b) Approve the contents of the Class Notice and Methods in the Notice Plan;
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(c) Schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for acceptance of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment approving the Class Settlement, granting Class Counsel's request for fees and expenses, granting the incentive awards application by the Class Representatives, and dismissing the Litigation with prejudice;
and
(d) Make the proper distribution to all Class members by means of delivering payment in the form of checks.
3. Class Counsel and Defendants’ Counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment.
4. In the event that the court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel and Defendant's Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court.
5. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement and shall promptly perform their respective obligations set forth herein. Any disputes regarding the Parties' obligations under this paragraph shall be submitted for decision by Judge Richard Young or his designated representative and his decision shall be binding on the Parties.
6. Neither this Settlement Agreement nor any negotiations shall be construed, offered, received as, or deemed to be, evidence of an admission or concession by Plaintiffs or the Class of lack of merit, or by Defendants of any liability or wrongdoing.
7. In the event that the Court does not approve any part of this Settlement Agreement and settlement, then this entire Settlement Agreement and settlement shall become null and void except that Plaintiffs, Class Counsel, and Defendant may agree in writing to proceed with a modified settlement and apply for Court approval of that modified settlement. In the event the Settlement Agreement shall become null and void for any reason, the provisions of Rule 408 of the Federal Rules of Evidence will apply to it and all negotiations surrounding it. No admission of law or fact, or combination thereof, will be found to exist as a result of this Settlement Agreement. If this Settlement Agreement fails to be approved or otherwise fails to be consummated in accordance with its terms:
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(a) Plaintiffs shall be entitled to continue this action on behalf of themselves and the Class in accordance with the rulings, circumstances, and procedural posture that existed in this case on December 30, 2016, the date on which Plaintiffs, Class Counsel, and Defendants agreed to the terms of this settlement.
(b) Defendants shall retain all rights to continue its defense to this case in accordance with the rulings, circumstances, and procedural posture that existed in this case on December 30, 2016, the date on which Plaintiffs, Class Counsel, and Defendants agreed to the terms of this settlement.
III. SETTLEMENT TERMS
A. Settlement Fund
1. Upon entry of the Final Judgment Order, the Settlement creates a Settlement Fund of One Million Two Hundred Thirty Thousand and 00/100 Dollars ($1,230,000.00). Before distribution to the individual Class Members, 37% of the Settlement Fund will be utilized to pay any and all attorneys' fees, plus costs (currently estimated to be $45,000), subject to Court approval. After attorneys' fees and costs have been paid by the Settlement Fund, subject to Court approval, an additional Fifteen Thousand and 00/100 Dollars ($15,000.00) will be distributed to each of the six (6) Class Representatives as incentive awards for being the faces of this Litigation and for the time and energy spent in assisting with the investigation, drafting, and negotiation of this litigation.
2. The Settlement Fund shall only be used to pay any and all attorneys' fees and costs, to pay each of the six (6) Class Representatives their earned incentive, and distributed to the remaining class members utilizing the method set out below.
B. Payments to Class Members
1. The Settlement Fund will be distributed as follows: Following the distribution of attorney fees, costs, and incentive awards, the remaining amount will be paid to the Class Members who submit a valid claim based on the following calculations:
(a) Class Members who are not Medicare eligible and who submit a valid claim and were subjected to the deployment of tasers or pepper spray while held under the Combative Subjects Policy shall receive Three Thousand Dollars ($3,000.00) plus the amount they receive as a class member as identified in subparagraph (d) below. The Parties agree to use the records maintained by the Floyd County Jail to determine those individuals, as summarized in Exhibit B.
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(b) Class Members who are Medicare eligible but for whom it is determined Medicare does not have a lien, and who submit a valid claim and were subjected to the deployment of tasers or pepper spray while held under the Combative Subjects Policy shall receive Three Thousand Dollars ($3,000.00) plus the amount they receive as a class member as identified in subparagraph (d) below. Payment will be released after the Defendants have confirmed that Medicare has no lien and have so informed the Settlement Administrator. The Parties agree to use the records maintained by the Floyd County Jail to determine those individuals, as summarized in Exhibit B.
(c) Class Members who are Medicare eligible and for whom it is determined Medicare has a lien, and who submit a valid claim and were subjected to the deployment of tasers or pepper spray while held under the Combative Subjects Policy shall receive Three Thousand Dollars ($3,000.00) plus the amount they receive as a class member as identified in subparagraph (d) below minus any amount due Medicare. Payment will be released after the Defendants have confirmed the amount of the lien and have so informed the Settlement Administrator of the amount due the Class Member and the amount due Medicare. The Parties agree to use the records maintained by the Floyd County Jail to determine those individuals, as summarized in Exhibit B.
(d) The total amount remaining in the Settlement Fund after deduction of attorneys' fees, costs, incentive awards, and payments pursuant to Paragraph 1(a) will be divided by the total number of Class Members who submit a valid claim.
(e) If the award described in Paragraph 1(d) exceeds Twenty Five Thousand Dollars ($25,000.00) per Class Member, the amount in excess of such award shall be refunded to Defendants.
(f) If any checks are not cashed within three (3) months of the distribution, the Settlement Administrator will notify the Parties of the identities of those Claimants who failed to cash their check. If there is money remaining in the Settlement Fund three (3) months after the payment to the Class Members who make valid claims, then that money will be redistributed pursuant to Paragraphs 1(d) and (e) above. However, if money is to be redistributed because there are unclaimed funds, no class member shall be entitled to more than $25,000.00 (excluding incentive awards and payments made under paragraph 1(a) above) and if all class members receive that amount and unclaimed funds still exist, the unclaimed funds will revert to the Defendants.
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2. Records have been provided by Defendants in order to acquire the name and address of each Class Member. The Parties will cause to be mailed to each Class Member the Class Notice and Claim Form with return envelopes for Class Members to mail back. Upon completion of their Claim Form, the Class Members will insert their completed Claim Form into the provided return envelope to mail to the Settlement Administrator.
3. The Settlement Administrator shall compile a list of class members submitting claims to be provided to all Parties.
4. The Parties recognize the possibility that Class Members may attempt to file late claims subsequent to the end of the claims period. Late claims may be allowed, if submitted on or before 30 days after the end of the claims period, for good cause shown as agreed by the Parties. However any claims submitted more than thirty (30) days after the end of the claim period shall not be allowed. To the extent that the Parties cannot agree that good cause is shown, the Settlement Administrator shall make the final decision regarding whether to allow a late claim. All late claims will be approved by the Court prior to being paid as part of the distribution of the Settlement.
5. After the Final Approval Hearing described below, the Settlement Administrator shall send checks to each Claimant who submits a valid claim pursuant to the distribution calculated in Section III(B) within fourteen (14) days of the Effective Date. If after three (3) months a check remains uncashed and money remains in what is left of the Settlement Fund, the remainder shall be redistributed among Claimants as provided under Section III(B) with no Class Member receiving more than $25,000.00.
6. The Parties expressly agree that the funds paid herein are not intended to be payment for economic damages or for punitive damages, but are intended to be payment for damages on account of alleged personal injuries, including, but not limited to, bodily injury, mental and emotional distress, and pain and suffering, arising from an occurrence, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. Despite the Parties' intentions, the Plaintiffs, Class Counsel, Defendants’ Counsel, and Defendants make no representations regarding the taxability or non-taxability of any payments made hereunder, and the Parties agree that Defendants, the Settlement Administrator, and Defendants’ insurers shall not be responsible for payment of any taxes on the amounts paid hereunder to Plaintiffs, Class Representatives, Class Members, or Class Counsel. All payment of taxes or other assessments to the state or federal authorities on the amounts paid under this Settlement Agreement, if any, shall be the sole responsibility of Plaintiffs, Class Representatives, Class Members, and Class Counsel with respect to their portion of the Settlement Funds.
C. Attorneys' Fees and Expenses
Class Counsel will petition the Court for an award of attorneys' fees in the amount of 37% of the entire Settlement Amount. The Plaintiffs and Class Counsel assert such an amount is reasonable in light of the effort expended in litigating this case, the
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significance of the relief obtained for the Class Members, and the efficiency with which negotiation of equitable and compensatory relief was obtained. Class Counsel also will request reimbursement from the Settlement Fund for out-of-pocket expenses incurred in litigating these claims and administering the settlement distribution. Class Counsel estimates this amount to be approximately $45,000.00. Defendants and Defendants’ counsel do not object to these requests. In the event that the Court does not approve the requested amount of attorneys' fees and costs, and approves some lesser amount, that fact will not void this Settlement Agreement; provided, however, that Class Counsel reserves the right to appeal any such decision. The Parties agree the Settlement will proceed as specified in this Agreement regardless of the amount of attorneys' fees and costs approved and awarded by the Court. Class Counsel will be paid from the Settlement Fund for their attorneys' fees and costs approved by the Court within ten (10) days of the Effective Date.
D. Policy and Training.
1. As part of the consideration for this Settlement Agreement, Defendants affirmatively represent that the Combative Subjects policy, as described in Exhibit D is no longer in effect at the Floyd County Jail, and will not be reinstated.
2. In addition to the payments described above, Defendants agree to the following:
(a) Field Training Officers employed by the Floyd County Sheriff’s Department will be independently certified;
(b) All new jail employees with responsibility for inmate supervision will undergo employee orientation and receive training for handling inmates before working with inmates;
(c) The Jail’s Facility Supervisor, Security Supervisor, and Classifications Officer will attend Inmate Behavior Management Training conducted by the National Institute of Corrections in May or July, 2017.
IV. NOTIFICATION TO CLASS MEMBERS
A. Responsibilities of the Settlement Administrator
1. The Parties shall appoint Dahl Administration to serve as the Settlement Administrator who will fulfill various duties described more in detail below including implementing the terms set out in this Settlement Agreement and the Notice Program.
2. The Settlement Administrator shall be responsible for: mailing Class Notice to every Class Member, mailing a Claim Form to every Class Member, publishing the Class Notice in appropriate public forums, distributing payments to the Settlement Class Members, and otherwise administering the Notice Program. The
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Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of its fiduciary duty to the Court, Class Members, Class Counsel, and Defendants’ Counsel. The Notice Program shall comply with all requirements of applicable law.
B. Notice
1. Beginning no later than fourteen (14) days from the date of the Preliminary Order Approving Settlement ("Notice Date"), the Settlement Administrator shall initiate the Notice Program. Such Notice Program will be completed with immediacy in accordance with the terms of the Settlement Agreement. Prior to the Final Approval Hearing, Class Counsel and/or the Settlement Administrator shall serve and file a sworn statement attesting to compliance with the provisions of this section.
2. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all potential Class Members at their last known or readily ascertainable address.
3. Additional notice shall also be posted by Class Counsel on a website dedicated to providing information to Class Members.
4. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to any person who inquires through means of written communication, by way of the toll-free telephone number established by the Settlement Administrator, and by way of e-mail communication also established by the Settlement Administrator.
5. Class Counsel will further upload downloadable and printable copies of notices, Claim Forms, court decisions, the Settlement Agreement, and information to Class Members through the Settlement Website.
6. If, after the initial mailing, any Class Notices are returned as undeliverable, the Settlement Administrator will make reasonable efforts to attempt to locate the relevant Settlement Class Members by way of national locator database. In the event a new address is located, the Settlement Administrator will ensure another Class Notice and Claim Form is mailed to the new address.
7. Prior to the Final Approval Hearing, the Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendants’ Counsel, recounting all actions taken to provide Notice of the Settlement. The Settlement Administrator will further provide an affidavit recounting any and all activity on the Settlement Website, including number of visitors and number of documents downloaded, and any and all activity through correspondence of e-mail or the toll-free telephone number between the Settlement Administrator and the potential Class Members.
8. The Settlement Administrator (and any person retained by the Settlement
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Administrator) shall sign a confidentiality agreement in a form agreed upon by the Parties, which shall provide that the names, addresses and other information about specific Class Members and/or specific Class Members that is provided to it by Defendant, Class Counsel, or by individual Class Members, shall be treated as confidential and shall be used only the Settlement Administrator as required by this Settlement Agreement.
9. Claim Forms must be postmarked on or before the 45th day from the Notice Date in order to be considered timely submitted, however, Claim Forms postmarked after this date shall be accepted by the Parties if received before the Final Approval Hearing and submitted in good faith within thirty (30) days after the 45th day from the Notice Date and the Settlement Administrator finds good cause exists to accept the late Claim Form.
10. The Settlement Administrator will advise Class Counsel and Defendants’ Counsel with information regarding who has filed Claim Forms within five (5) business days after the end of the Claim Period. If information on a submitted Claim Form is insufficient, unreadable, incomplete, or left blank, the Settlement Administrator shall contact the person who submitted the Claim Form and aid the person in completing the information.
11. The Settlement Administrator shall have final authority to determine whether individuals who have submitted Claims Forms qualify as Settlement Class Members. The Parties shall have the right to challenge the Settlement Administrator’s determination of class eligibility at the Final Fairness Hearing.

V.

REQUESTS FOR EXCLUSION BY SETTLEMENT CLASS MEMBERS

A.

The provisions of this paragraph shall apply to any Request for

Exclusion. Any Settlement Class Member may make a Request for Exclusion by

mailing or delivering such request in writing to the Settlement Administrator within

forty-five (45) days from the Notice Date. Any Request for Exclusion must be

postmarked no later than the Opt-Out Deadline. Any Request for Exclusion shall

include the name, address, and telephone number of the person requesting exclusion

and include a clear statement indicating that person chooses to be excluded from the

Settlement, does not wish be a Settlement Class Member and chooses to be excluded

from any judgment entered pursuant to the Settlement.

B.

Any Settlement Class Member who submits a timely Request for

Exclusion may not file an objection to the Settlement and shall be deemed to have

waived any rights or benefits under this Settlement Agreement.

C.

Not later than three (3) business days after the deadline for

submission of Requests for Exclusion, the Settlement Administrator shall provide an

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Opt-Out List to Class Counsel and to Defendants’ Counsel together with copies of each Request for Exclusion. Class Counsel and Defendants’ Counsel shall jointly report the names appearing on the Opt-Out List to the Court at the time of the Final Approval Hearing.

D.

Class Counsel agrees that they will not represent any individual

who opts out from the Settlement in asserting claims against Defendants that are the

subject of this Agreement.

VI.

OBJECTIONS BY SETTLEMENT CLASS MEMBERS

A. After the Settlement Class has been determined and certified, a period of time will be established in order to allow for approved Settlement Class Members to make Objections to the Settlement. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Any Objection must be postmarked no later than the Objection Date. Such objection shall state the name, address and telephone number of the person, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents said person wishes to be considered in support of the objection.

B. No objecting Class Member will be permitted to appear and object at the Final Approval Hearing unless he or she has timely filed and served a written objection and filed a Notice of Intention to Appear with the Court. Class Members or their attorneys intending to make an appearance at the Final Approval Hearing must, no later than fifteen (15) days prior to the Final Approval Hearing, file with the Court and serve Class Counsel and Defendants’ counsel with a Notice of Intention to Appear that (i) states how much time the Class Member and/or his/her attorney anticipates needing to present his or her objection; (ii) identifies by name, address, and telephone number the Class Member making the objection, and a summary of the testimony supporting the objection; (iii) identifies by name, address, and telephone number all witnesses the Class Member and/or his/her attorney intends to present testimony from, including a summary of the testimony; (iv) identifies all exhibits the Class Member and/or his/her attorney intends to offer in support of the objection(s) and attaches complete copies of all exhibits; and (v) contains the signature of the Class Member making the objection and a statement under penalty of perjury that the individual is a member of the Class, i.e. that the individual was placed and/or kept in the custody of the Floyd County Jail pursuant to the Combative Subjects Policy during the relevant time period.
C. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient
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administration of justice and the orderly presentation of any Settlement Class Members' Objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard, with the Clerk of the Court. Upon such filing, the Clerk of the Court shall provide notice of objection or request to be heard, including all papers or evidence in support thereof, upon the Class Counsel and Defendants’ Counsel. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court shall not be heard during the Final Approval Hearing, nor shall the Court consider their Objections.
D. In accordance with law, only Settlement Class Members who have objected to the Settlement pursuant to the terms above may appeal any Final Judgment. The proposed Final Judgment shall provide that any Settlement Class Member who wishes to appeal the Final Judgment, even though appeal will delay the distribution of the Settlement to the Class, shall post a bond with this Court in an amount to be determined by the Court as a condition of prosecuting such an appeal.
VII. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT
A. By this Settlement Agreement and specifically as provided in this Paragraph, Defendants, and all of its respective affiliates, predecessors, operating units, related corporations, successors and assigns, officers, agents, representatives, insurers, and all of their past, present, and future employees, supervisors, officers, directors, agents, elected and appointed officials, county administrators, correction officers, county judges, jailers, attorneys and any person or entity which can be held jointly and severally liable with any of them ("Released Parties"), are released from any and all claims, causes of action, liabilities, demands, and causes of action, fixed or contingent, that were, could have been, or should have been asserted by the Plaintiffs or any member of the Class against the Released Parties based upon or related in any way to the conditions of confinement in the Floyd County Jail that are the subject of the Litigation and for any claim asserted, or that could have been asserted in the Litigation and the Complaint in Case No. 4:14-CV-00054-RLY-TAB arising out of conditions of confinement in the Floyd County Jail ("Released Claims").
B. This Settlement Agreement does not affect the rights of Settlement Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and implementation of the Settlement as exemplified in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to orders enjoining Settlement Class Members from prosecuting claims that have been released pursuant to the Settlement Agreement.
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D. Said Release as explained above shall be in effect upon the Effective Date of this Settlement. Further, Class Counsel shall be paid their Court-approved attorneys' fees and costs from the Settlement Fund within ten (10) days of the Effective Date.

E. Upon the Effective Date and the conclusion of any appeals:

(i) The Settlement Agreement shall be exclusive remedy for any and all Released Claims of Class Members;

(ii) The Released Parties shall not be subject to liability or expense of any kind to any settlement Class Members or their successors, predecessors, or assigns except as set forth herein;

(iii) Class Members and their successors, predecessors, and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal; and

(iv) Plaintiffs and Defendants shall file a Stipulation of Dismissal of the lawsuit with prejudice with each Party to be responsible for and pay their own costs and attorney fees.

F. Medicare. Plaintiffs agree to protect Medicare’s interests as set forth in “Exhibit C”.

G. Tolling of Statute of Limitations. Defendants agrees that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Class who has properly opted out of the Settlement, Defendants shall not assert any statute of Limitations, repose, or laches defense unless such defense (i) existed as of June 12, 2014, the date this class action was filed, or (ii) arose after a Request for Exclusion was effected pursuant to Section V, or (iii) a combination thereof.

VIII.

INCENTIVE AWARDS TO CLASS REPRESENTATIVES

Given the efforts of the named Plaintiffs for being the faces of this Litigation on behalf of the Class, Defendants will not oppose an application for awards of Fifteen Thousand and 00/100 Dollars ($15,000.00) each on behalf of the Class Representatives. It is agreed between the Parties that the Class Representatives provided considerable assistance to Class Counsel in their prosecution of this action. Class Representatives are also eligible for payment through the distribution of the Settlement Fund once attorneys' fees and costs and their incentive awards have been allocated.

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IX. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute deliver, and perform this Settlement Agreement and to perform all of the transactions contemplated hereby. This Settlement Agreement has been validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal, valid, and binding obligation.
B. Defendants, through their undersigned attorney, represent and warrant that they have the authority to execute, deliver, and perform this Settlement Agreement and to perform all of this Settlement Agreement and performance by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on part of Defendants. This Settlement Agreement has been validly executed and delivered by Defendants and constitutes their legal, valid, and binding obligation.
X. MISCELLANEOUS PROVISIONS
A. The heading of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its interpretation.
B. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties or their counsel.
C. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
D. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of Indiana, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
E. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear its own costs of the Litigation.
F. Named Plaintiffs, Tabitha Gentry, Janelle South, Anna Chastain, Adam Walker, Vincent Minton and Michael Herron agree not to publicly disclose the terms of the agreement or comment publicly on the settlement reached in this matter. Class counsel agrees not to solicit media attention to discuss the resolution of this matter. However, if requested to comment by the media, media comments regarding the resolution of this matter will be restricted to information contained in the Class Notice. Class Counsel will not offer opinions in any media comments. If Class Counsel is asked
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questions about matters outside the information contained in the Class Notice, Class Counsel will advise the requesting media they cannot answer that question. Class Counsel will not discuss other past or future litigation against any of the Released Parties. Class Counsel will not advertise or otherwise promote itself during media comments regarding the resolution of this matter. Also, in media comments, Class Counsel will not address the Defendants’ insurance company by name or provide who is providing the settlement funds for the settlement. Nothing in this paragraph shall prohibit Class Counsel or the Settlement Administrator from distributing notices to local media outlets as described in Paragraph IV(A)(2) or providing a link to www.FloydCountyJailClassAction.com for the purpose of advising potential class members of their rights in this matter.
G. If any clause, provision or paragraph of this Settlement Agreement is deemed illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the remaining clauses, provisions, or paragraphs of this Settlement Agreement, and this Settlement Agreement shall be construed and enforced as if such illegality, invalidity, or unenforceability had not been included herein.
H. The Parties to this Settlement Agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable time extensions that may be necessary to fully implement any of the provisions of this Settlement Agreement.
I. All applications for Court approval or Court orders required under this Settlement Agreement shall be made on notice to Plaintiffs and Defendants.
J. The determination of the terms of, and the drafting of, this Settlement Agreement, including its exhibits, has been by mutual agreement after mediation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of both Parties and their counsel, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the Parties was represented by competent and effective counsel throughout the course of Settlement negotiations and in the drafting and execution of this Settlement Agreement, and there was no disparity in bargaining power among the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any outside party or their counsel.
K. All of the exhibits to this Settlement Agreement are material and integral parts hereof, and are fully incorporated This Settlement Agreement and exhibits hereto constitute the entire, fully integrated agreement among the Parties and cancel and supersede prior written and unwritten agreements and understandings pertaining to the Settlement of this Litigation.
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L. Notice:

1. Any notice, request, instruction, or other document to be given by any party to this Settlement Agreement to any other party to this Settlement Agreement (other than Class Notice) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:

If to Defendants:

R. Jeffrey Lowe Kightlinger & Gray, LLP Bonterra Building, Suite 200 3620 Blackiston Blvd. New Albany, IN 47150.

If to Class Counsel: Laura E. Landenwich Theodore W. Walton Daniel J. Canon Clay Daniel Walton & Adams PLC 462 South Fourth Street, Suite 101 Louisville, Kentucky 40202.

Dispute Resolution. The Parties agree that any disputes regarding the terms and conditions of this Settlement Agreement shall be submitted to Hon. Tim A. Baker, who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, the Honorable Richard Young shall decide such dispute.

IN WITNESS WHEREOF, Plaintiffs and Defendant through their respective counsel have executed this Settlement Agreement as of the date(s) indicated on the lines below.

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I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ TABITHA GENTRY
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Tabitha Gentry, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

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I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ JANELLE SOUTH
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Janelle South, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

21

Case 4:14-cv-00054-TAB-RLY Document 125-2 Filed 07/23/17 Page 22 of 25 PageID #: 1719

I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ ADAM WALKER
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Adam Walker, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

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I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ ANNA CHASTAIN
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Anna Chastain, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

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I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ MICHAEL HERRON
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Michael Herron, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

24

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I hereby certify that I have read all of this settlement agreement and fully understand the same, and in witness whereof, I have executed this settlement agreement this ____ day of _______________, 2017 at ____________________________, Kentucky.
__________________________________ VINCENT MINTON
APPROVED BY:
___________________________________ Laura Landenwich Attorney for Plaintiff

STATE OF KENTUCKY

]

:ss

COUNTY OF JEFFERSON

]

BEFORE ME, the undersigned Notary Public, in and for said county and state, personally appeared Vincent Minton, who acknowledged execution of the foregoing Settlement Agreement.

WITNESS my hand and Notarial Seal this ______ day of _______________, 2017.

My Commission Expires: My County of Residence is:

_______________ _______________

__________________________________ Notary Public (Signature)
__________________________________ Notary Public (Printed)

25

 
 Case 4:14-cv-00054-TAB-RLY Document 17 Filed 11/12/14 Page 1 of 22 PageID #: 116

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

ELECTRONICALLY FILED

TABITHA GENTRY 1429 Locust St. New Albany, IN 4715
and
VINCENT MINTON 11302 Nabb New Washington Rd Nabb, IN 47147
and
MICHAEL HERRON 418 Howser Rd Henryville, IN 47126
and
ADAM WALKER 6090 State Rd. 62 Apt. 25 Georgetown, IN 47122
and
BRIAN BURGESS 8240 Rachel Ln. Sellersburg, IN 47172
and
ANNA CHASTAIN 3422 Tabor Ct. Apt. 4 New Albany, IN 47150
and

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.

)

)

4:14-CV-00054-RLY-WGH

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case 4:14-cv-00054-TAB-RLY Document 17 Filed 11/12/14 Page 2 of 22 PageID #: 117

JANELLE SOUTH

)

1104 Ekin Ave

)

New Albany, IN 47150

)

)

PLAINTIFFS

)

)

vs.

)

)

FLOYD COUNTY, INDIANA

)

SERVE: Mark Seabrook

)

County Commissioner

)

City-County Building

)

311 West First Street

)

New Albany, IN 47150

)

)

and

)

)

DARRELL MILLS,

)

Individually, and in his capacity as

)

Floyd County Sheriff

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

TIFFANY FRANS, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

OFFICER ATHERTON, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

)

RYAN RAINEY, individually

)

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

and

)

2

Case 4:14-cv-00054-TAB-RLY Document 17 Filed 11/12/14 Page 3 of 22 PageID #: 118

)

OFFICERS JOHN/JANE DOE, individually )

Floyd County Sheriff’s Department

)

311 Hauss Square

)

New Albany, IN 47150

)

)

DEFENDANTS

)

FIRST AMENDED CLASS-ACTION COMPLAINT INTRODUCTION
1. Plaintiffs Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Brian Burgess, Anna Chastain, and Janelle South file this action in their individual capacities and on behalf of all persons stripped, held naked, tortured, humiliated, and abused by Defendants as a regular part of Defendants' policies, procedures, and protocol.
2. This class of people includes all individuals who were so treated from June 12, 2012, to the present.
3. Such treatment has been regularly perpetrated by Defendants and there are potentially hundreds of members of this class.
4. There are questions of law and fact in this case that are common to all members of this class.
5. Plaintiffs' claims are typical of those of the class, and they will fairly and adequately protect the interests of this class.
JURISDICTION AND VENUE 6. Plaintiffs, and all other similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. §1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the

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Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States.
7. This Court has jurisdiction of this case pursuant to the provisions of 28 U.S.C. §1331 and §1343.
8. Plaintiffs and the other members of the class also seek declaratory and injunctive relief.
9. As Floyd County, Indiana is the location of all acts on which Plaintiff's claims are based, venue is proper in this Court.
CLASS ACTION 10. Plaintiffs bring this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. 11. The class consists of all individuals who, since June 12, 2012, were forcibly stripped of their clothing, and kept in a state of undress for prolonged periods of time, whether as a punitive measure, or as a torture method, or under the pretext of a search and seizure, or any other reason. 12. This class also consists of individuals who were subjected to the use of pepper spray, taser, or other unnecessary and unwarranted means of excessive force while being held under these conditions. 13. Plaintiffs and other members of the class were subjected to such treatment despite the absence of any reasonable, individualized suspicion or probable cause required by law. 14. Plaintiffs will fairly and adequately protect the interests of all class members. They are members of the class and their claims are typical of the claims of all class members.
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15. Plaintiffs were harmed and offended by the treatment accorded them and will aggressively pursue the interests of the entire class.
16. Plaintiffs’ interest in obtaining injunctive relief and actual and punitive damages for the violations of their constitutional rights and privileges are consistent with and not antagonistic of those of any other person within the class.
17. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly forcibly remove the clothing of arrestees/detainees, and leave them without clothing for prolonged periods of time, despite the absence of any reasonable, individualized suspicion, probable cause, threat, security interest, or provocation that would justify such an extreme sanction.
18. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly expose such detainees’ naked bodies to members of the opposite sex either through conducting the forcible removal of clothing, through the subsequent withholding of clothing while in view of Jail employees and inmates, or through video surveillance of detainees’ naked bodies.
19. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly expose such detainees’ naked bodies to harmful and extremely offensive touching.
20. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly subject detainees to unnecessary, unwarranted, and excessive uses of force during and following the removal of their clothing despite the absence of any provocation, legitimate security or law enforcement interest, probable cause, or articulable individualized suspicion.
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21. Given the circumstances of their detention, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly deprive such detainees of access to bathroom facilities, and force detainees to void into a floor drain.
22. In addition, upon information and belief, video footage was taken of the above abuses. This video footage, which includes clear and graphic depictions of Plaintiffs' naked bodies, is available to Floyd County Sheriff employees, other members of Floyd County government, and to the general public.1
23. Such abuses violate the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. §1983, and clearly established law.
24. Plaintiffs and the members of the class are entitled to declaratory and injunctive relief and an award of compensatory and punitive damages.
25. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It would be virtually impossible for all class members to intervene as parties-plaintiffs in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.
1 Video footage of Plaintiff Tabitha Gentry was obtained through a request pursuant to the Indiana Access to Public Records Act, IC § 5-14-3.
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NATURE OF DEFENDANTS' CONDUCT 26. The conduct of the Defendants constitutes torture, and violates clearly established, longstanding national and international norms. 27. Defendants' treatment of Plaintiffs and other class members is intolerable in a civilized society, and presents a marked departure from the standard to which the Western world adheres for the treatment of prisoners of war during wartime, let alone the standard of acceptable treatment for American citizens on American soil. 28. Defendants engaged in the conduct described below under color of the law of the State of Indiana and Floyd County. 29. The offenses described below resulted from the failure of Defendants Floyd County and Darrell Mills to employ qualified persons for positions of authority, to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of American citizens. 30. Defendants’ conduct was intentional or grossly negligent, or indicated active malice toward Plaintiffs and the class, or constitutes a total and reckless disregard for and indifference to Plaintiffs’ constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiffs and the class are entitled to recover.
PARTIES 31. Plaintiff Tabitha Gentry (“Gentry”) is, and at all times relevant herein was, a resident of Floyd County, Indiana. 32. Plaintiff Vincent Minton (“Minton”) is, and at all times relevant herein was, a
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resident of Clark County, Indiana. 33. Plaintiff Michael Herron (“Herron”) is, and at all times relevant herein was, a
resident of Clark County, Indiana. 34. Plaintiff Adam Walker (“Walker”) is, and at all times relevant herein was, a
resident of Floyd County, Indiana. 35. Plaintiff Janelle South (“South”) is, and at all times relevant herein was, a
resident of Floyd County, Indiana. 36. Plaintiff Brian Burgess (“Burgess”) is, and at all times relevant herein was, a
resident of Clark County, Indiana. 37. Plaintiff Anna Chastain (“Chastain”) is, and at all times relevant herein was, a
resident of Floyd County, Indiana. 38. Defendant Floyd County, Indiana is responsible for the conditions in the
Floyd County Jail, for the establishment of policies either formally or by custom and practice, and for the employment, training, supervision and conduct of the officers and employees of the Jail.
39. At all times relevant herein, Defendant Darrell Mills (“Mills”), Sheriff of Floyd County, was responsible for the conditions in the Floyd County Jail, for the establishment of policies either formally or by custom and practice, and for the employment, training, supervision and conduct of the officers and employees of the Jail. Mills is named in his individual capacity and his official capacity as Floyd County Sheriff.
40. At all times relevant herein, Defendants Atherton, Frans, and Rainey were employed as corrections officers in the Floyd County Jail.
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41. Defendant Officers John and Jane Does, are individuals who were employed by the Floyd County Sheriff’s Department and participated in depriving the class members of constitutional guarantees, or were present for and otherwise failed to intervene in order to protect Plaintiffs’ constitutional rights.
FACTUAL ALLEGATIONS Plaintiff Tabitha Gentry
42. Plaintiff Tabitha Gentry is a thirty-two-year-old mother of four. 43. On March 30, 2014 at approximately 4:00 a.m., Gentry was arrested on suspicion of public intoxication, disorderly conduct, and resisting law enforcement, all misdemeanor offenses. 44. Indiana State Police transported Gentry to the Floyd County Jail. 45. Upon arriving at the Floyd County Jail, Gentry was escorted, in handcuffs, to the “remand room.” 46. While waiting to be booked, Gentry had a verbal altercation with three Defendant officers. 47. During this verbal exchange, Gentry was seated on a bench and her hands were cuffed behind her back. 48. Defendants Frans, Atherton, and Rainey then ceased booking Gentry into the Jail and grabbed Gentry by the neck, arms, and head, and forcibly escorted her into a “padded cell,” identified on surveillance video as “PD-2.” 49. Defendants then forced Gentry to the floor, held her down, and began to forcibly remove her shoes, pants and underwear.
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50. After stripping her from the waist down, officers removed Gentry’s handcuffs and began to remove her shirt and bra.
51. While removing Gentry’s shirt and bra, Defendant Rainey pressed a taser to her back and threatened to tase her.
52. Male officers, including Defendant Rainey, were present for and participated in stripping Gentry.
53. At approximately 4:15 a.m. officers left the cell, and Gentry was kept naked and alone with only a small blanket (referred to by Jail staff as a “smock”) to cover herself.
54. After approximately 20 minutes, Gentry began to bang on the cell door and ask officers for clothing.
55. An unknown Defendant officer responded that if Gentry did not “shut up,” he was going to pepper spray her.
56. At approximately 5:12 a.m., an unknown Defendant officer sprayed pepper spray into the cell.
57. Gentry’s naked body was exposed to the chemical spray in the closed cell for approximately forty (40) minutes.
58. At approximately 6:00 a.m., Gentry was handcuffed behind her back and taken to a washing station to wash the pepper spray off her face.
59. Because she was handcuffed, Gentry was unable to hold the smock so that her body was adequately covered. While walking to and from the wash station, Gentry’s breasts and genitals were exposed to male officers and, upon information and belief, male inmates.
60. At 6:20 a.m., Gentry was returned to her cell, still naked with a wet “smock.” 61. Gentry remained in the cell, naked, for approximately five (5) hours.
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62. During the time Gentry was in the cell she was deprived of toilet facilities and forced to urinated into a floor drain.
63. At approximately 11:00 a.m. officers provided Gentry with a standard-issue jumpsuit and she was booked into the Jail.
Plaintiff Vincent Minton 64. Plaintiff Vincent Minton is a twenty-three year old resident of the State of Indiana and employee of a local music store. 65. On February 28, 2013, Minton was arrested by New Albany police officers on suspicion of public intoxication, intimidation, and disorderly conduct, all misdemeanors. 66. Minton was brought to the Floyd County Jail at approximately 2:45 a.m. 67. Minton exercised his right against self-incrimination, and refused to respond to questions posed by Jail officers. 68. Minton was subsequently put into a “padded cell.” 69. After some time alone in the cell, Minton began banging on the door and requesting a phone call or access to a lawyer. 70. In response, two unidentified Defendant officers came into the cell, pushed Minton against the wall, and then to the ground. 71. The two Defendant officers proceeded to forcibly remove Minton’s shoes, socks, pants, underwear, and shirt. 72. One Defendant officer then deployed his taser, striking Plaintiff in the buttocks. 73. The officers then left the cell without providing Minton with anything with which to cover his naked body.
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74. Approximately thirty (30) minutes later, officers provided Minton with a “smock” with which to cover himself.
75. The cell did not contain a toilet, and Minton was forced to urinate into a drain in the floor.
76. Minton was held for several hours before officers provided him with any clothing.
Plaintiff Michael Herron 77. Plaintiff Michael Herron is a thirty-six-year-old Army veteran, truck driver, and father of two. 78. On January 5, 2014, Herron was arrested by New Albany police officers on suspicion of public intoxication and disorderly conduct. 79. Herron was taken to the Floyd County Jail in handcuffs at approximately 1:30 a.m. 80. While being booked into the Jail, Herron questioned unidentified Defendant officers about their processes and procedures. 81. Defendant officers then interrupted the booking process and instructed Herron to get up. They walked him to the “padded cell.” 82. After some time in the cell, Herron began to knock on the door and asked to make a phone call. 83. Officers told Herron to “go to sleep,” although there was no mat or cot in the cell. 84. Herron was forced to urinate in a drain in the floor.
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85. Following an additional passage of time, Herron began banging on the door and wall of the cell.
86. Unknown Defendant officers then entered the cell and directed Herron to face the wall and then get on the ground.
87. Herron complied with officers’ orders and was then held down by three male and one female officer by his legs, neck, and arms.
88. Defendant officers then removed his shoes, socks, pants, underwear, and shirt. 89. Defendants left the cell and gave Herron a “smock” which was too small to adequately cover himself. 90. One unidentified officer instructed Herron “go to sleep or I’ll pepper spray you.” 91. Herron attempted to cover himself with the smock while laying on the floor of the cell, however the smock did not adequately cover his body. 92. At approximately 8:00 a.m., Herron was given his street clothes, and was later booked and released.
Plaintiff Adam Walker 93. Plaintiff Adam Walker is a thirty-one-year-old Army veteran, small business owner, and a resident of the State of Indiana. 94. On May 24, 2014, at approximately 1:00 a.m., Walker was arrested by Floyd County Sheriff Deputies on suspicion of operating a vehicle while intoxicated, a misdemeanor. 95. Walker disputed the charge and agreed to voluntarily accompany the Deputy to the Floyd County Jail to take a breathalyzer test.
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96. Walker blew into the breathalyzer three times over the course of one hour. Each time the machine gave an error message.
97. Walker was cooperative and was not handcuffed during this time. 98. While sitting on a bench, three unidentified Defendant officers approached Walker and one officer winked at him. 99. Walker asked the officer why he winked at him, and the officer denied winking at him. 100. The two argued briefly over whether the officer winked at him, when the three deputies descended on Walker, threw him to the ground, and handcuffed him. 101. While handcuffed, officers tased Walker seven times and choked him until he lost consciousness. 102. Walker regained consciousness while being dragged into the “padded cell.” 103. Defendants then forcibly removed Walker’s shoes, socks, and jeans. Then, they removed his handcuffs and removed his shirt. 104. Defendants left Walker alone in the cell with nothing to cover himself. 105. After a period of time, Walker began to beat on the door and complain that the room had no heat and he was cold. In response, officers provided Walker with a “smock.” 106. After the next shift of officers arrived at the Jail, Walker asked to use a bathroom. He was told that the drain in the floor was his bathroom. 107. After approximately 18 hours in the cell, the officer who winked at Walker the night before came to the door and asked, “Are you docile?” Walker was then given a prison jumpsuit to wear and a mat to lay on.
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108. While in the Jail, Walker also witnessed another detainee get forcibly stripped by officers and put into another padded cell. During the course of this detainee’s forcible striping, Walker witnessed the officers pull the detainee’s feet out from under him so that the detainee fell to the floor headfirst and knocked out his teeth.
109. Walker suffers from a variety of combat injuries, including a gunshot wound, spinal compression fracture, traumatic brain injury, and post-traumatic stress.
110. Walker was held in the booking area for four (4) days. During this time, Jail staff refused to provide him with medications, including anti-seizure medication and antibiotics. When Walker advised officers that he needed seizure medication, an officer told him, “Well, you’d better not have a seizure.”
Plaintiff Janelle South 111. Janelle South is a thirty-four year old cancer survivor. At the time of the incidents described below, South had just completed a three-month radiation treatment regimen. 112. South was arrested by Indiana State Police on February 9, 2014 on her way home from a funeral. She was charged with a misdemeanor alcohol-related offense. 113. Upon entry into the Floyd County Jail, South was almost immediately taken into a padded cell. 114. While South was in the padded cell, the arresting officer, Mike Davis, repeatedly came to the window to taunt South by making faces and inflammatory comments. 115. South repeatedly requested medical attention. After several requests, an unknown female deputy opened the flap in the door and sprayed the cell with pepper spray. 116. Some of the pepper spray blew back on the deputy.
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117. Without warning, the unknown female deputy entered the padded cell and forcibly stripped South of her clothing.
118. South was given a smock to cover herself with, but the Velcro on the smock was too worn to allow South to fasten the smock to cover herself.
119. After approximately thirty minutes, South was taken to the shower to rinse off the pepper spray.
120. Following the shower, South was not given a towel to dry off with or any clothing. She was returned to the padded cell wet and with no clothing, save the smock.
121. South was not given a mat to lay on, and instead lay on the floor and used a roll of toilet paper for a head rest.
122. Deputies refused South’s requests for access to the bathroom and instructed her to use the drain in the floor. The drain in the floor appeared to have been previously used by another inmate.
123. During the twelve hours South was unclothed in the padded cell, male inmates periodically looked through the cell window.
Plaintiff Brian Burgess 124. Brian Burgess is a forty-three-year-old resident of the state of Indiana, and is employed by a roofing and restoration company. He served in the U.S. Air Force during the first gulf war, and was given an honorable discharge in 1993. 125. Burgess was arrested by Indiana State Police on November 29, 2013, for allegedly swapping pricing labels on a pair of jeans at a local retailer. 126. Burgess was thereafter held by Defendants at the Floyd County Jail until December 2, 2013.
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127. Burgess repeatedly requested to be able to make a phone call to secure representation.
128. Burgess was denied access to a phone by Defendants for the entirety of his incarceration.
129. Defendants strip-searched Burgess upon his initial confinement, but did not return his clothes to him or allow him to wear a jumpsuit while he was detained.
130. Defendants gave Burgess a “smock” to wear. This smock did not cover his entire body, and left his genitalia exposed.
131. Despite his exposure, Defendants led him through an area of the jail which left him in full view of other inmates and female officers.
132. Despite his repeated requests, Defendants denied him access to his prescription anti-inflammatory medication during his detention.
133. When he complained about his conditions, Defendants told Burgess “If you don't like being in jail, you shouldn't be a street junkie.”
134. Burgess was not given a jumpsuit to wear until 30 minutes before his arraignment on December 2.
135. After his initial court appearance, Defendants forced Burgess to remove all of his clothing and put on a smock again.
136. During his detention, Burgess was forced to stay in unsanitary conditions and to urinate into a drain in the floor.
Plaintiff Anna Chastain 137. Plaintiff Anna Chastain is a resident of the state of Indiana, a mother, and an employee of a packing and shipping facility.
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138. Chastain was apprehended by police on or about December 31, 2013, on suspicion of public intoxication.
139. At the time of her arrest, police told her she had the option of going to the hospital or going to jail.
140. Chastain had no significant criminal history at the time of her arrest. 141. Chastain did not want or need to be taken to the hospital, and was afraid she would incur charges there that she would not be able to pay. 142. Chastain was transported to the Floyd County Jail, and her personal property was confiscated. 143. When she asked Defendants to see a record of her personal property, she was slammed on the ground by three officers, resulting in a black eye and a laceration on her lip. 144. At all times relevant to this Complaint, Chastain weighed approximately 95 lbs. and stood approximately five feet, two inches in height. 145. Defendants forced Chastain to remove all of her clothing and placed her in an isolation cell. 146. During this time, Ms. Chastain informed Defendants that she was menstruating. Nonetheless, Chastain was forced by Defendants to remove the sanitary pad she was wearing, leaving her to menstruate on the cell floor. 147. Defendants refused to bring Chastain any feminine hygiene products for approximately 4 hours, and refused any clothing for approximately 9 hours.
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LEGAL CLAIMS 42 U.S.C. §1983
148. Defendants were acting under the color of state law when they undertook the actions described above.
149. Defendants deprived Plaintiffs of their rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution.
150. The abuses to which Plaintiffs and the class were subjected, as described above, were part of a continuing pattern of misconduct and were the result of Defendant's written policies or procedures and/or unwritten customs and practices that are systematically applied to arrestees/detainees.
151. As a state actor, Defendant's practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for the constitutional and common law rights of the citizens of Indiana, including Plaintiffs and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such practices.
152. As a result of the foregoing, Plaintiffs and the class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following non-exhaustive list of rights and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983:
a. Their right to freedom of speech without fear of retaliation under the First Amendment;
b. Their right to be secure in their person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments;
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c. Their right to privacy in their person against unreasonable intrusions under the Fourth, Fifth, Ninth and Fourteenth Amendments;
d. Their right to the equal protection of the law, procedural due process, and substantive due process secured by the Fifth and Fourteenth Amendment;
e. The right to be free of cruel and unusual punishment secured by the Eighth Amendment; and
f. The right to be free of excessive force. 153. Defendant's conduct also violated concomitant rights guaranteed by the Constitution and common laws of Indiana. 154. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' abuse of Plaintiffs and the members of the class was intentional, wanton and malicious, and indicative of Defendants’ total and reckless disregard of/deliberate indifference to the rights of Plaintiffs and the class.
Failure to Train 155. In addition, Defendants were negligent and/or deliberately indifferent to Defendant officers’ need for training regarding unlawful searches and seizures, the reasonable use of force, and the rights of pre-trial arrestees/detainees. 156. As a result of Defendants’ failure to train the officers, the officers violated Plaintiffs’ constitutional rights. 157. As a direct and proximate result of the aforementioned conduct, Plaintiffs have suffered physical harm, emotional distress, embarrassment, humiliation, and mental anguish.
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Damages 158. Plaintiffs and the members of the class were unjustifiably and unconstitutionally treated in a manner that generated tremendous and overwhelming embarrassment, humiliation, and mental and emotional distress. As a result, they have suffered, and are entitled to recover, actual damages. 159. Furthermore, Defendants' violations of the constitutional and common law rights of the Plaintiffs and the class were cruel, malicious and evinced a total and reckless disregard for and indifference to those rights, entitling Plaintiffs and the class to recover punitive damages from Defendant in order to deter such conduct in the future.
Declaratory Judgment and Permanent Injunction 160. In addition to the foregoing, Plaintiffs and the class request that this Court issue a declaratory judgment deeming unconstitutional any and all written policies or procedures, and/or unwritten customs or practices under which they were forced to be submitted to Defendants' humiliating and/or torturous practices, and further request that this Court permanently enjoin Defendants from following or enforcing such written policies or procedures, and/or unwritten customs or practices subjecting detainees to gratuitous, unnecessary humiliation, excessive punishment, torture, and/or unreasonable search and seizures. WHEREFORE, Plaintiffs and the class they represent request: A. That this action proceed as a class action under Fed. R. Civ. P. 23(b)(1-3); B. A trial by jury; C. An award of actual and punitive damages to Plaintiffs and all members of the class;
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D. The declaratory and injunctive relief requested herein; and E. An award of their costs and attorney fees and all other relief to which they are entitled under law or in equity.
Respectfully submitted,
/s/ Laura E. Landenwich Laura E. Landenwich, # 27709-22 Daniel J. Canon CLAY DANIEL WALTON & ADAMS PLC 101 Meidinger Tower 462 South Fourth Street Louisville, KY 40202 (502) 561-2005 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 12, 2014, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following: Jeffrey Lowe Kightlinger & Gray LLP Bonterra Building Suite 200 3620 Blackiston Boulevard New Albany IN 47150 jlowe@k-glaw.com Counsel for Defendants
/s/ Laura E. Landenwich
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

TABITHA GENTRY,

)

VINCENT MINTON,

)

MICHAEL HERRON,

)

ADAM WALKER,

)

ANNA CHASTAIN, and

) 4:14-cv-00054-RLY-TAB

JANELLE SOUTH,

)

)

Plaintiffs,

)

)

vs.

)

)

FLOYD COUNTY, INDIANA,

)

DARRELL MILLS,

)

TIFFANY FRANS,

)

OFFICER ATHERTON,

)

RYAN RAINEY, and

)

JOHN/JANE DOE,

)

)

Defendants. )

ENTRY ON DEFENDANTS’ MOTION FOR RECONSIDERATION OF COURT’S ENTRY ON PLAINTIFF’S MOTION TO CERTIFY CLASS On February 16, 2016, the court granted the Plaintiffs’ Motion to Certify Class. Defendants move the court to reconsider its ruling and deny the Plaintiffs’ motion because, they argue, the Plaintiffs do not meet the requirements of Rule 23(a) or (b). For the reasons set forth below, the court GRANTS in part and DENIES in part

Defendants’ motion.

I. Background In this action, Plaintiffs challenge the Floyd County Sheriff’s Department policy
entitled “Combative Subjects Practices.” (Filing No. 49-3, Combative Subjects Policy).

1

As its name suggests, the Policy covers the best practices for Floyd County Jail Personnel
to deal with “combative and potentially suicidal subjects” entering the Jail. (Id.). The
Policy leaves the determination of who falls within the Policy to the discretion of Jail
Personnel, and grants them the authority to take unruly detainees to a padded cell, strip
them of their clothes, and clothe them in a “protective smock.” (Id.). In determining whether a subject is unruly, the Policy instructs staff to use a “temperature test”:
Supervisors or medical staff that deem a subject unstable by means of intoxications [sic], general threating [sic] behavior, have the ability to take each incident and conduct a “temperature” test to decided [sic] what the best course of action is to protect all parties. This “temperature” test to decided [sic] what the best course of action is to protect all parties. This “temperature” test includes the subject’s demeanor, attitude, actions, intoxication, and a number of other officer observations that would allow him to make this determination. (Id.).
Subjects who fail the temperature test are placed into one of two padded isolation
cells, referred to as “PD-1” and “PD-2.” (Filing No. 44-1, Deposition of Lt. Andrew
Sands at 90-92). These cells consist of four walls; there is no bench on which to sit. (See
Filing No. 52, Plaintiffs’ Ex. 5 (videotape of Plaintiffs in one of the cells)). Once inside a
padded cell, detainees are stripped of their clothing and given a one-size-fits-all
protective (i.e., suicide prevention) smock. In addition, they are deprived of mattresses,
blankets, and personal hygiene products because, according to Lt. Andrew Sands, such
items can be used as weapons. (Sands Dep. at 125-29; see also id. at 230 (“Q: So
anytime someone refuses orders, you view them as a threat to use their clothing as a
weapon against officers? A: Among other reasons, yes.”); id. at 127 (“Q: Are the
2

inmates that are being held naked in padded cells except for a smock provided with a blanket? A: No, they are not.”); id. at 128 (“Q: Are the inmates that are being held in the padded cells naked except for a smock provided with a hygiene pack? A: They are not.”)). Detainees remain in the padded cell until Jail Personnel determine, in their judgment, the detainees will behave. (Id. at 103-04 (testifying that “if an inmate was a behavioral problem, we may tell them, “‘Okay. Let’s reevaluate this in a couple hours [until] you can prove to us that you’re going to follow our rules and be respectful . . . .’”)).
The Plaintiffs herein were placed in the padded cell because they failed the temperature test by engaging in bad behavior with Jail Personnel during the booking process. (See, e.g., Filing No. 17, Am. Compl. ¶ 49). In addition to being stripped of their clothing, Plaintiffs allege they were treated without dignity or respect. Some had to urinate in a floor drain (Id. ¶¶ 62, 75, 84, 106, 122, 136); some were denied their medications (id. ¶¶ 110, 132); some were pepper sprayed (id. ¶¶ 56, 115); and some were hit with a taser (id. ¶¶ 72, 101). Plaintiffs allege the Jail’s Policy and/or unwritten practice of “stripping out”1 unruly subjects violates the Fourth Amendment’s right to privacy and prohibition against excessive force; the Eighth Amendment’s prohibition against cruel and unusual punishment; and the Fourteenth Amendment’s right to substantive and procedural due process.
1 Sgt. Ryan Rainey testified that the term “stripping out” is “just a short form of saying they went to a padded cell.” (Filing No. 46, Deposition of Ryan Rainey at 26).
3

After considering the facts, issues, and the applicable law, the court granted Plaintiffs’ request to certify the following class for liability issues only pursuant to Rule 23(c)(4):
All inmates confined from June 12, 2013 to present in the Floyd County Jail who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products. In addition, the court granted Plaintiff’s request to certify the following subclass: Those class members who were subjected to weapons deployment while confined and secured in the padded cells. Defendants’ motion to reconsider followed. II. Discussion The court has the inherent power to reconsider interlocutory orders and reopen any part of a case before entry of final judgment. Fisher v. Nat’l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993). “Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (internal quotation marks and citation omitted). A motion to reconsider is appropriate when “‘the Court has patently misunderstood a party, or has made a decision outside of the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.’” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Whether to grant a motion to reconsider is
4

committed to the sound discretion of the district court. Caisse Nationale, 90 F.3d at 1270.
Defendants raise a number of arguments in support of reconsideration. The court will begin with whether the class is identifiable.
A. Identifiable Class The definition of the main class requires a class member to be: (1) not on suicide watch; (2) housed in a padded cell; (3) deprived of bedding; (4) deprived of clothing; and (5) deprived of hygiene products. According to Defendants, class members cannot be determined based simply on their presence in the padded cell because potential factual disputes exist regarding the last two class requirements—that class members be deprived of clothing and deprived of hygiene products. Therefore, Defendants argue, the court erred in finding the main class identifiable. Citing the testimony of Lt. Sands, the court found that those unruly inmates who were stripped of their clothing and provided a jail-issued smock were never given bedding and hygiene products as a matter of course. Defendants admit this fact in their Response to Plaintiffs’ Motion for Class Certification. (Filing No. 66, Defendants’ Response at 34 (“Blankets, mattresses and hygiene items are not provided to inmates who have been so combative or resistant with the staff that they are placed in the padded cell because it would give the inmate something to use on the officers or themselves.”)). Defendants assert, however, that inmates were not deprived of hygiene products because, as Lt. Sands testified, if an inmate needed a hygiene item to shower or brush his or her
5

teeth, Jail Personnel would provide the hygiene item and require it be returned after use. (Sands Dep. at 129).
The withdrawal of hygiene products as a disciplinary measure can constitute a constitutional violation. See, e.g., Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (confinement without adequate access to life’s necessities, including hygiene items, can violate the Eighth Amendment). Here, inmates subject to the Jail’s stripping out policy were not issued hygiene items in the isolation cell. Whether an inmate later received hygiene items is not at issue and goes only to damages, not liability. See Pella Corp. v Saltzman, 606 F.3d 391, 394 (7th Cir. 2010) (a district court may “certif[y] a class for liability alone where damages or causation may require individualized assessments”).
Defendants also identify a factual issue over whether the smock is the functional equivalent of “clothing.” The key issue of fact—i.e., that class members were forcibly stripped—is undisputed. Just as with hygiene products, that some members suffered the indignity of having their naked bodies exposed for a short period of time goes to the issue of damages, not liability. Accordingly, the court finds it did not err in finding the class sufficiently identifiable.
B. The Main Class Next, Defendants argue that the court erred in finding the Plaintiffs satisfied the commonality and predominance requirements of Rule 23(a)(2) and Rule 23(b)(3) respectively.
6

1. Commonality
To meet the commonality requirement, there must be “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). “A common nucleus of operative fact is
usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v.
Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v. Livaditis, 963 F.2d 1013,
1018 (7th Cir. 1992)). A common nucleus of operative fact exists where “defendants
have engaged in standardized conduct towards members of the proposed class.” Id. In
Wal-Mart v. Dukes, the Supreme Court explained:
[The plaintiffs’] claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.
564 U.S. 338, 350 (2011).
In Flood v. Dominguez, 270 F.R.D. 413 (N.D. Ind. 2010), the district court
certified a class of detainees housed in holding cells for more than 24 hours without a bed
or mattress. The commonality requirement was satisfied, the Flood court reasoned,
because “Plaintiffs’ core complaint—that the Jail’s policy of keeping detainees in holding
cells for over 24 hours without a mattress or bed is unconstitutional—is common to the
entire class.” Id. at 418. In the present case, the court analogized Plaintiffs’ proposed
class to the class certified in Flood, and concluded:
Plaintiffs do not challenge the reasons for their placement in a padded cell. Rather, they challenge the conditions of their confinement in the padded cell—no clothing (but a smock), no bedding or hygiene products—as punitive and out of balance with any legitimate penological interest. This
7

inquiry does not depend on any individualized determination. In sum, Plaintiffs’ core complaint—whether Defendants’ “stripped out” policy or practice is unconstitutionally punitive—is common to the entire class. (Filing No. 75, Entry on Plaintiffs’ Motion for Class Certification at 11-12) (internal citations omitted). Defendants assert that certification is inappropriate because, unlike the inmates in Flood, not every inmate in the Jail is subjected to the stripped out policy. Defendants are correct; not every inmate is subjected to the stripped out policy and placed in isolation. But that fact does not preclude certification, because those that are subject to the policy suffer the same consequences—detainment in an isolation cell with no clothing (but a smock), no bedding, and no hygiene products. See, e.g., Gillis, 468 F.3d at 493 (“A lack of heat, clothing, or sanitation can violate the Eighth Amendment.”); Maxwell v. Mason, 668 F.2d 361, 365 (8th Cir. 1981) (confinement in isolation without adequate clothing or bedding supports an Eighth Amendment claim: “clothing is a ‘basic necessity of human existence’”); Bell v. Wolfish, 441 U.S. 520, 537 (1979) (“[P]unitive measures . . . may not constitutionally be imposed prior to a determination of guilt.”). The conditions of confinement in the isolation cell, therefore, apply equally to the entire class. See Flood v. Dominguez, No. 2:08-cv-153 PPS PRC, 2011 U.S. Dist. LEXIS 6754, at *9 (N.D. Ind. Jan. 21, 2011) (explaining on reconsideration that certification was appropriate because the “alleged conditions common to all detainees—the lack of bedding, cold temperatures, lack of hygiene items, lack of exercise, small meal portions—were the result of the Jail’s uniform policies and practices and were applied to all detainees at the Jail”); Dunn v. City of Chicago, 231 F.R.D. 367, 377 (N.D. Ill. 2005) (finding courts “routinely address
8

conditions of confinement claims in class actions” where the conditions of confinement “common to all . . . are unlawful”).
2. Predominance Under the predominance requirement of Rule 23(b)(3), common questions of law or fact must predominate; in other words, “there must be a common nucleus of operative facts applicable to the entire class.” Ziemack v. Centel Corp., 163 F.R.D. 530, 535-36 (N.D. Ill. 1995). Defendants argue the issues in this case are too individualized and factsensitive to allow class certification, particularly where, as here, multiple Defendants are sued in their individual and official capacities. The certification issue here focuses on Plaintiffs’ Monell claim that Floyd County’s “stripping out” policy and unwritten practice is unconstitutional, and not on any individual capacity claims. “When a class challenges a uniform policy or practice, the validity of that policy or practice tends to be the predominant issue in the ensuing litigation.” Young v. County of Cook, No. 06 C 552, 2007 WL 1238920, at *7 (N.D. Ill. Apr. 25, 2007). This is especially true where, as here, the conditions stem from jail policies or practices that are uniformly applied to all inmates. Flood, 270 F.R.D. at 420. Accordingly, the court finds it did not err in concluding Plaintiffs satisfied the commonality and predominance requirements of Rule 23. Having so found, the court reiterates its stance that a class action is superior to prosecuting individual claims. Defendants’ motion to reconsider certification of the main class is therefore DENIED.
9

C. The Subclass Defendants also argue that certification of the subclass was erroneous because the Plaintiffs have only identified 20 potential subclass members. To meet the numerosity requirement, the class must be so large “that joinder of all members is impracticable.” Keele, 149 F.3d at 594. Although there is not a numerical threshold to establish numerosity, 40 is generally considered sufficiently large to satisfy Rule 23(a). See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 & n.9 (7th Cir. 1969) (even 40 class members “is a sufficiently large group to satisfy Rule 23(a)”). When determining whether joinder is impracticable, the court may also consider other factors including, inter alia, judicial economy arising from the avoidance of a multiplicity of lawsuits, the financial resources of the class members, the inconvenience of trying individual suits, the size of each plaintiff’s claim, and factors relevant to the practicability of joining all class members. Donovan v. St. Joseph Co. Sheriff, No. 3:11-cv-133-TLS, 2012 U.S. Dist. Lexis 63847, at *6-7 (N.D. Ind. May 3, 2012) (citing 32B Am. Jur. 2d Federal Courts § 1608; 5 Moore’s Fed. Practice – Civil § 23.22[1][a] (3d ed. 2011)). At the time the court initially ruled on Plaintiffs’ motion, the court was under the impression that there were over 25 inmates that fit within the subclass. The court was mistaken; Plaintiffs reported then that the potential class was actually estimated to be “over 20.” As of their Response to the present motion, Plaintiffs have not identified any additional potential members. Twenty or so class members is simply not enough to satisfy the numerosity requirement. See Arreola v. Godinez, 546 F.3d 788, 798 (2008) (“We can assume 14 would not be enough . . . .”); Oplchenski v. Parfums Givenchy, Inc.,
10

254 F.R.D. 489, 495 (N.D. Ill. 2008) (“Generally, where class members number at least 40, joinder is considered impracticable and numerosity is satisfied.”); Ansari v. N.Y. Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998) (numerosity satisfied when the class comprises 40 or more members and . . . not . . . satisfied when the class comprises 21 or fewer”). Furthermore, the court finds that joinder would not be impracticable, even considering the additional factors such as the inconvenience of trying individual excessive force cases, given the size of the putative class members. The court therefore reconsiders its prior ruling and GRANTS Defendants’ motion to reconsider certification of the subclass.2 III. Conclusion
The court finds it did not err with respect to the certification of the main class, but did err with respect to certification of the subclass. Therefore, the court GRANTS in part and DENIES in part Defendants’ Motion for Reconsideration of Court’s Entry on Plaintiffs’ Motion to Certify Class (Filing No. 78).
SO ORDERED this 25th day of July 2016.
__________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana
2 Defendants also argue that the subclass pertains to issues regarding the use of force which necessarily requires consideration of individualized circumstances. Because the issue of numerosity is dispositive, the court will not address this argument.
11

Distributed Electronically to Registered Counsel of Record 12

 
 Case 4:14-cv-00054-TAB-RLY Document 111 Filed 10/27/16 Page 1 of 5 PageID #: 1512

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

TABITHA GENTRY,

)

VINCENT MINTON,

)

MICHAEL HERRON,

)

ADAM WALKER,

)

ANNA CHASTAIN, and

) 4:14-cv-00054-RLY-TAB

JANELLE SOUTH,

)

)

Plaintiffs,

)

)

vs.

)

)

FLOYD COUNTY, INDIANA,

)

DARRELL MILLS,

)

TIFFANY FRANS,

)

OFFICER ATHERTON,

)

RYAN RAINEY, and

)

JOHN/JANE DOE,

)

)

Defendants. )

ENTRY ON PLAINTIFFS’ MOTION TO RECONSIDER DE-CERTIFICATION OF SUBCLASS

Plaintiffs are a group of detainees who were housed in padded isolation cells of the

Floyd County Jail in conditions they claim were unconstitutional. Plaintiffs were placed

in isolation because of their behavior during the booking process pursuant to the

Combative Subjects Policy which, they allege, gave Jail officers the authority to strip

them of their clothing (sometimes forcibly) and replace their clothing with a suicide

prevention smock. They were also deprived of a mattress, blanket, or personal hygiene

items.

1

Case 4:14-cv-00054-TAB-RLY Document 111 Filed 10/27/16 Page 2 of 5 PageID #: 1513
On February 16, 2016, the court granted the Plaintiffs’ Motion to Certify the following class for liability issues only pursuant to Rule 23(c)(4):
All inmates confined from June 12, 2013 to present in the Floyd County Jail who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products. In addition, the court granted Plaintiffs’ request to certify the following subclass: Those class members who were subjected to weapons deployment while confined and secured in the padded cells. On July 25, 2016, the court granted Defendants’ motion to reconsider its certification order with respect to the subclass, finding that the Plaintiffs had not satisfied the numerosity requirement. Plaintiffs now move the court to reconsider its decision. For the reasons set forth below, their motion is DENIED. I. Discussion Plaintiffs represent that after a thorough review of the voluminous records produced in this case, they grossly understated the size of the subclass, and now represent the subclass consists of 59 individuals. As support, they filed Exhibit 1, a list of class members identified in this case. The members of the subclass are those with an asterisk by his or her name. (See Filing No. 89-1, Plaintiffs’ Ex. 1, list of class members with asterisks). Fifty-nine members easily surpasses the 40 or so needed to satisfy the numerosity requirement, they argue, and therefore, the court should reconsider its previous order de-certifying the subclass. Defendants oppose Plaintiffs’ motion for several reasons, only one of which need be addressed. They argue that the subclass implicates an officer’s decision to use force,
2

Case 4:14-cv-00054-TAB-RLY Document 111 Filed 10/27/16 Page 3 of 5 PageID #: 1514
which is an inherently fact-sensitive issue and thus, not amenable to class treatment. Plaintiffs respond that the subclass’ claim is not impermissibly fact-dependent. They explain: “The allegation is that the conditions in the padded cell are constitutionally inhumane, and the introduction of weapons into that environment can never be justified.” (Filing No. 102, Plaintiffs’ Reply at 1). This is because “naked people locked in a cell are, as a matter of law, never a threat to jail staff.” (Id.). Thus, unlike the main class, the subclass is not based on the conditions of the class members’ confinement; instead, it is based on the use of force against them. Plaintiffs argue a Jail officer’s decision to use force is “allowed” by the Combative Subjects Policy, which reads in relevant part:
Our staff is trained to maintain control of a subject by both verbal and physical means if necessary. If we fail to maintain order and discipline within the facility then we jeopardize the safety of inmates and staff alike. The staff are to take all threats of an inmate’s [sic] seriously and react according to the use of force policy and practice. (Filing No. 43-2, Combative Subjects Policy). The definition of the subclass begs the question of why weapons were deployed on those class members in the first place. The testimony of Sgt. Ryan Rainey and Officer Meghan Atherton, cited by Plaintiffs, answers this question. They both testified that pepper spray was introduced into the padded cells “to gain compliance.” (Filing No. 461, Deposition of Ryan Rainey (“Rainey Dep.”) at 88; Filing No. 43-1, Deposition of Meghan Atherton (“Atherton Dep.”) at 56). Sgt. Rainey explained: The majority of the time – well, the only time I ever used pepper spray was to deter them from punching, hitting walls because on numerous occasions where we had to take someone to the hospital if they break their hand or hurt their foot. So we would introduce pepper spray to gain their compliance so they don’t do that.
3

Case 4:14-cv-00054-TAB-RLY Document 111 Filed 10/27/16 Page 4 of 5 PageID #: 1515
(Rainey Dep. at 88; see also Atherton Dep. at 55-56 (Q: “For what purpose are they pepper-sprayed while in that cell naked except for the smock?” A: “In attempts to gain compliance. If they’re trying to get other cells, you know, riled up with them, with their outburst, trying to gain compliance. . . . If they’re screaming or kicking and, you know, they won’t stop.”)).
The evidence establishes that Jail officers used pepper spray to subdue unruly inmates who posed a danger to themselves, and not, as Plaintiffs’ theorized, for officer safety. Moreover, the Combative Subjects Policy directs Jail officers to react to the misbehavior of inmates according to the Sheriff’s use of force policy. The determination to use force, then, is left to the discretion of the officers based on their education, training, and experience. Stated differently, the decision to use force on an inmate in isolation is dependent on the facts presented to an officer at a given time, such as the inmate’s behavior, actions, and/or reactions to the attending Jail staff’s requests to, for example, refrain from screaming or kicking the walls. Such individualized determinations of liability would not be benefited by class certification. See Brown v. Sec’y, Dep’t of Corr., No. 2:03-cv-526-FtM-29DNF, 2005 U.S. Dist. LEXIS 48442, at *26-27 (M.D. Fl. Sept. 20, 2005) (denying class certification because the decision to use chemical agents on inmates is dependent on the facts of each individual situation facing a correctional officer).
4

Case 4:14-cv-00054-TAB-RLY Document 111 Filed 10/27/16 Page 5 of 5 PageID #: 1516 II. Conclusion The subclass implicates an officer’s decision to use force, an inherently factsensitive inquiry which is not appropriate for class certification. Therefore, the court DENIES Plaintiffs’ Motion for Reconsideration of De-Certification of Sub-Class (Filing No. 89). SO ORDERED this 26th day of October 2016. __________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
5

 
 Case 4:14-cv-00054-TAB-RLY Document 112 Filed 10/26/16 Page 1 of 3 PageID #: 1517

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

TABITHA GENTRY,

)

VINCENT MINTON,

)

MICHAEL HERRON,

)

ADAM WALKER,

)

BRIAN BURGESS,

)

ANNA CHASTAIN, and

)

JANELLE SOUTH, on their own behalf )

and on behalf of those similarly situated, )

)

)

Plaintiffs,

)

)

vs.

)

)

FLOYD COUNTY, INDIANA,

)

DARRELL MILLS, Individually and in )

his capacity as Floyd County Sheriff,

)

TIFFANY FRANS, Individually,

)

OFFICER ATHERTON, Individually,

)

RYAN RAINEY, Individually, and

)

OFFICERS JOHN/JANE DOE,

)

Individually,

)

)

Defendants. )

4:14-cv-00054-RLY-TAB

ORDER ON PLAINTIFFS’ MOTION TO APPROVE CLASS CERTIFICATION NOTICE
Plaintiffs move for approval of the Notice of Class Certification and Opt-Out

Form submitted by the Plaintiffs as Exhibits 1 and 2. (See Filing Nos. 90-1, 90-2).

Having reviewed the forms and noting no objection filed by Defendants, the court finds

the forms meet the requirements of Federal Rule of Civil Procedure 23(c)(2) and

therefore, the motion (Filing No. 90) is GRANTED.

1

Case 4:14-cv-00054-TAB-RLY Document 112 Filed 10/26/16 Page 2 of 3 PageID #: 1518

IT IS HEREBY ORDERED that the following Notification Procedures will be

used:

1. Defendants shall provide Plaintiffs with the current mailing address on file

with Defendants for each individual identified in Exhibit 2. (See Filing 90-2, Identified

Class Members).

2. Defendants shall consult any regularly available database used to track

incarcerated persons and identify any class member who is presently incarcerated by

facility and inmate number.

3. Defendants shall provide the above information within thirty (30) days of

the entry of this Order.

4. Class Counsel shall corroborate addresses provided by Defendants through

LexisNexis or Westlaw.

5. Within thirty (30) days of receiving the above information from

Defendants, Class Counsel shall send via U.S. Postal Service the Approved Notice and

Opt Out Form to all class members for which addresses are available.

6. Class Counsel shall create a website which contains, at a minimum, a copy

of the Notice of Class Certification, Complaint and Amended Complaint, Defendants’

Answer, the Opt Out Form, and an electronic contact link to allow class members to

update their contact information.

SO ORDERED this 26th day of October 2016.

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana

2

Case 4:14-cv-00054-TAB-RLY Document 112 Filed 10/26/16 Page 3 of 3 PageID #: 1519 Distributed Electronically to Registered Counsel of Record.
3

 
 Case 4:14-cv-00054-TAB-RLY Document 129 Filed 08/02/17 Page 1 of 5 PageID #: 1869

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
ELECTRONICALLY FILED

TABITHA GENTRY, ET AL.

)

)

PLAINTIFFS

)

)

vs.

)

)

)

FLOYD COUNTY, INDIANA, ET AL. )

)

DEFENDANTS

)

CIVIL ACTION NO. 4:14-CV-00054-RLY-TAB

* * * * * * * ORDER GRANTING FINAL APPROVAL OF CLASS ACTION
SETTLEMENT

The Court has considered the Class Action Settlement Agreement and its Exhibits, the Parties’ Joint Motion for Final Approval of Class Action Settlement, the Parties’

Memorandum in Support of Joint Motion for Final Approval of Class Action Settlement,

and all other papers filed in this action. On May 23, 2017, this Court preliminarily approved this settlement.

The matter having been submitted and good cause appearing therefore, the Court

finds as follows:

1. All defined terms contained herein have the same meaning as set forth in the

Class Action Settlement Agreement executed by the Settling Parties and filed with this Court

(“Settlement Agreement”).

Case 4:14-cv-00054-TAB-RLY Document 129 Filed 08/02/17 Page 2 of 5 PageID #: 1870
2. Notice in this case was completed by the administrator, Dahl Inc., a nationally known class-administration firm with significant experience. The Court recognizes and approves content of the Affidavit provided by Dahl, Inc. regarding the notice attached as Exhibit 1 to the Memorandum in Support of the Joint Motion for Final Approval of Class Action Settlement.
3. The Court finds that there were no opt-outs or objections to this settlement. 4. The Court finds that all material aspects of Class Notice were accomplished in accordance with this Court’s preliminary approval of the Settlement. 5. The Class Representatives and Class Counsel have requested 37% of the Settlement fund will be allocated for attorneys’ fees, for a total of $ 455,100.00 and Defendants and Defendants’ counsel do not object to the request. The Court further finds that litigation and administration costs in the amount up to $45,000 shall be reimbursed to Class Counsel from the settlement fund. These amounts are reasonable given the nature of this case and the work of Class Counsel. This case is complex and involves questions of constitutional law and interpretation as well as issues of sovereign immunity and municipal liability. Class Counsel worked diligently on the case and moved it towards settlement as quickly as practicable. This was a result of aggressive, persistent litigation. Further, the benefits to the Class are significant. Finally, attorneys’ fees were approved by both Class Representatives and Counsel and Defendants and Defendants’ Counsel do not object to the Request. There have been no objections by Class Members to the Request for Fees and Costs. Based on the above, the Court finds that the requested attorneys’ fees and costs are fair and reasonable and should be paid from the settlement.
2

Case 4:14-cv-00054-TAB-RLY Document 129 Filed 08/02/17 Page 3 of 5 PageID #: 1871
6. The Court finds that the Class Representative payments of $15,000 each to
Class Representatives Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Anna
Chastain, and Janelle South are fair and reasonable and should be paid from the settlement.
7. Further, this Court hereby:
a. Finds that all things ordered by this Court in its Order Granting Preliminary Approval of Class Action Settlement have been accomplished;
b. Finds that Class Counsel have fairly and adequately protected the interests of the Settlement Class;
c. Finds that all requirements of statutes, rules, and the United States Constitution necessary to effectuate this Agreement have been met and satisfied;
d. Gives final approval to the Settlement Agreement as fair, reasonable, and adequate to the Class Members;
e. Approves the award of Class Counsel’s attorney fees in the amount of $ 455,100.00 and litigation costs and fees of up to $45,000, and approves Class Representative compensation in the amount of $15,000 per Class Representative pursuant to the Settlement Agreement;
f. Recognizes that by entering into the Settlement Agreement, Defendants have not admitted any wrongdoing or liability and deny the same. The Court recognizes that the Settlement Agreement between the Parties is a compromise of disputed claims;
and
g. Recognizes that Class Counsel have done an admirable job of representing the interests of the Class; Class Representatives have represented the Class fairly and adequately, giving up their time to secure relief that will benefit hundreds of people; counsel for the Defendants has provided excellent representation for his client; thus, final approval is in the best interest of the Parties and the Class.
Good cause appearing therefore, IT IS HEREBY ORDERED that:
3

Case 4:14-cv-00054-TAB-RLY Document 129 Filed 08/02/17 Page 4 of 5 PageID #: 1872
1. The Settlement Agreement is given final approval as fair, reasonable, and adequate for the settlement of the claims of the Class Members.
2. The Parties will comply with the terms of the Settlement Agreement with the terms of the Settlement being incorporated in this Order.
3. All members of the Settlement Class, their heirs, executors, administrators, successors, and assigns are bound by this Final Order. The Class is defined as:
All inmates confined from June 12, 2012, to present in the Floyd County Jail who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products 4. Defendants, and all of their respective affiliates, predecessors, operating units, related corporations, successors and assigns, officers, agents, representatives, insurers, and all of their past, present, and future employees, supervisors, officers, directors, agents, elected and appointed officials, county administrators, correction officers, county judges, jailers, attorneys and any person or entity which can be held jointly and severally liable with any of them ("Released Parties"), are released from any and all claims, causes of action, liabilities, demands, and causes of action, fixed or contingent, that were, could have been, or should have been asserted by the Plaintiffs or any member of the Class against the Released Parties based upon or related in any way to the conditions of confinement in the Floyd County Jail that are the subject of the Litigation and for any claim asserted, or that could have been asserted in the Litigation and the Complaint in Case No. 4:14-CV-00054-RLYTAB arising out of conditions of confinement in the Floyd County Jail. 5. In the event that the Effective Date occurs, all Class Members will be deemed to have forever released and discharged the Released Claims described in paragraph
4

Case 4:14-cv-00054-TAB-RLY Document 129 Filed 08/02/17 Page 5 of 5 PageID #: 1873
4. In the event that the Effective Date does not occur for any reason whatsoever, the Settlement Agreement shall be deemed null and void and shall have no effect whatsoever.
6. Attorney fees and Class Representative payments are fair and reasonable and should be paid from the settlement pursuant to the terms of the Settlement Agreement.
7. In the event that the Effective Date occurs, this action will be deemed resolved and shall be dismissed on the merits with prejudice and (except as provided in this Order or in the Settlement Agreement) without costs and attorney fees to any party as against any other.
8. Counsel shall promptly notify the Court when all terms of settlement have been finalized so that this case can be dismissed.
Date: 8/2/2017
_______________________________ Tim A. Baker United States Magistrate Judge Southern District of Indiana
All ECF-registered counsel of record via email
5