Case 2:08-cv-00467-JD Document 16 Filed 03/28/08 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON AND ZORAN HOCEVAR,:

individually and on behalf of a class of others :

similarly situated,

: COMPLAINT -- CLASS ACTION

:

Plaintiffs,

:

:

v.

: No. 2:08-cv-00467-JD

:

THE GEO GROUP, INC, in its official and :

individual capacities, and JOHN DOES

:

1 — 100, in their official and individual

: JURY TRIAL DEMANDED

capacities,

:

Defendants.

:

AMENDED COMPLAINT INTRODUCTION
1. This is a class action brought against Defendants The GEO Group, Inc. (“GEO”) and John Doe Defendants 1 — 100 (collectively with GEO, “Defendants”) in their individual capacities and in their official capacities as administrators, managers, and/or operators of the “Facilities,” as that phrase is defined herein. Defendant GEO has been hired by various governmental entities across the country to manage, oversee, and operate their prisons, jails, correctional facilities, residential, detention, treatment, and medical facilities. This action seeks to redress and prevent the deprivation of rights secured to Plaintiffs Penny Allison and Zoran Hocevar (collectively, “Plaintiffs’) and the proposed Class under the United States Constitution, the laws of the United States and of various states. The Defendants, while serving as government actors, have employed a uniform practice and

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procedure of strip searching all pre-trial detainees who enter the Facilities, regardless of the crime or violation for which they are detained, and without making the legally required determination of whether reasonable suspicion exists to justify a strip search (the “Illegal Strip Search Practice or Policy”). Upon information and belief, this uniform practice and procedure is, in part, derived from the written policies and procedures of the Defendants, and is implemented, employed and/or overseen by Defendants at numerous jails across the United States.
2. Individuals charged with non-violent, non-weapon, and non-drug related offenses cannot be lawfully strip searched upon entry or transfer to jail absent particularized suspicion that those detainees possess or are concealing weapons, drugs or other contraband. Thus, a blanket policy of conducting strip searches on all arrestees, including pre-trial detainees, on the ground that they are to be placed into the jail’s general population is a violation of the detainee’s constitutional rights.
3. The Illegal Strip Search Practice or Policy implemented, overseen, and/or employed by Defendants compels and/or compelled all new inmates, including pre-trial detainees, regardless of the charges or circumstances, to undergo the indignities, humiliation and embarrassment of a strip search upon admission to the Facilities.
4. Plaintiffs bring this action on behalf of themselves and a Class of thousands of others who were unconstitutionally strip searched pursuant to
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Defendants’ Illegal Strip Search Practice of Policy in various Facilities across the United States to vindicate their rights under the Fourth and Fourteenth Amendments and under state law.
5. GEO is a government actor and operates under color of state law in carrying out the function of operating a jail under contracts with various counties. The operation of jails is traditionally the exclusive prerogative of the government. When private organizations, such as Defendant GEO, contract to perform such governmental functions, those entities and its agents are liable for violations of federal and state created rights under 42 U.S.C. § 1983, the United States Constitution, and under state tort law. For the purposes of this action, Defendant GEO stands in the shoes of the counties on whose behalf it has been hired to operate, manage, and oversee the Facilities.
JURISDICTION 6. This Court has jurisdiction over this action under the provisions of 28 U.S.C. § 1331, 1341 and 1343 and 42 U.S.C. § 1983. Plaintiffs seek to obtain compensatory damages, punitive damages, and declaratory relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1981 and 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of local government entities.
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7. Jurisdiction is also conferred upon this Court pursuant to 28 U.S.C. § 1332(d)(2) because: (i) there are 100 or more class members, (ii) there is an aggregate amount in controversy of at least $5,000,000, exclusive of interest and costs, and (iii) there is minimal diversity because at least one plaintiff and one defendant are citizens of different states. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
8. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of many of the proposed Class members occurred in substantial part in this judicial district. Defendant GEO operates at least one Jail facility that employs the Illegal Strip Search Practice or Policy that is located within the geographic region covered by this Court.
DEFINITIONS 9. As used herein, the phrase “Facilities” shall refer to any and all jail(s), prison(s), correctional, detention facility, residential, detention, treatment, and/or medical facilities: (i) where arrestees and/or pre-trial detainees are held, (ii) which Defendant GEO manages, administers, runs, and/or oversees, and (iii) that employs the Illegal Strip Search Practice of Policy. The phrase “Facilities” is limited to jail(s), prison(s), correctional, detention facility, residential, detention, treatment, and/or medical facilities that Defendant GEO manages, administers, and/or oversees – in whole or in part – on behalf of any local government, municipality, or county in the United States.
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10. The “Illegal Strip Search Practice or Policy” refers to the Defendants’ written, unwritten, and/or de facto policy or practice of strip searching all individuals detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments and/or other similar non-violent, non-drug, and non-weapons related possession offenses upon their commitment to one or more of the Facilities.
11. For purposes of this Amended Complaint, strip and visual cavity searches are collectively referred to as “Strip Searches.”
PARTIES 12. Plaintiff Allison is an adult female who lives at 412 West Jefferson Street in Media, Pennsylvania. After being placed into the custody of Defendants, and as described in more detail infra, Allison was subjected to an unconstitutional strip search at one of the Facilities. 13. Plaintiff Hocevar is an adult male who resides in Upper Darby, Pennsylvania. Hocevar was arrested in or around March of 2005, and was detained at one of Defendant’s Facilities in or around August 2007. After being placed into the custody of Defendants, and as described in more detail infra, Hocevar was subjected to an unconstitutional strip search at one of the Facilities. 14. Defendant GEO is a Florida corporation whose common stock is publicly traded on the New York Stock Exchange (NYSE:GEO). According to its most recent Form 10-K filed with the Securities and Exchange Commission (“SEC”), GEO recorded revenues in excess of $860 million in 2006. As of December 31, 2006,
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Defendant GEO had over 10,000 full-time employees. GEO can be served at its headquarters at One Park Place, Suite 700, 621 Northwest 53 Street in Boca Raton, Florida. GEO has previously operated under the name “Wackenhut Corrections Corp.”
15. In its SEC filings, Defendant GEO describes itself as “a leading provider of government-outsourced services specializing in the management of correctional, detention and mental health and residential treatment facilities in the United States, Australia, South Africa, the United Kingdom and Canada. We operate a broad range of correctional and detention facilities including maximum, medium and minimum security prisons, immigration detention centers, minimum security detention centers and mental health and residential treatment facilities. Our correctional and detention management services involve the provision of security, administrative, rehabilitation, education, health and food services, primarily at adult male correctional and detention facilities.”
16. As of December 31, 2006, Defendant GEO operated a total of sixty-two (62) correctional, detention, and mental health residential treatment facilities. Upon information and belief, GEO operates and/or manages jails, prisons, and correctional facilities in sixteen (16) different states.
17. Various other individual persons (including without limitation, law enforcement and corrections officers), the identities of whom are presently unknown to Plaintiff and his counsel, have participated as co-conspirators with GEO and other actors in the violations alleged herein, and have performed acts in furtherance
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thereof. Collectively, these defendants shall be referred to herein as the “John Doe Defendants,” and they include, without limitation, the various local government, municipal, and county entities with which Defendant GEO contracted regarding the maintenance and management of their prisons. The acts charged in this Complaint have been done by Defendants and their co-conspirators, and/or were authorized, ordered or done by their respective officers, agents, employees or representatives.
18. At all times relevant hereto, Defendant GEO has acted as the agent of the respective local government, municipal, and county entities with which GEO contracted to manage/oversee the Facilities.
19. This Amended Complaint seeks monetary damages and other relief from the Defendants in their respective individual, official, and personal capacities.
FACTS FACTS APPLICABLE TO THE CLASS GENERALLY 20. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits local government and county officials, including the Defendants in this action, from performing strip searches of arrestees who have been detained for non-violent, non-drug and nonweapons possession offenses unless the corrections officer has reasonable suspicion to believe that the detainee is concealing weapons, drugs, or other contraband. 21. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the violation or crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
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22. Upon information and belief, the Defendants have promulgated, implemented, enforced, carried out, and/or failed to rectify a written and/or de facto policy, practice or custom of uniformly strip searching all individuals placed into the custody of the Facilities without any demonstration or finding of reasonable suspicion. This written and/or de facto policy made the strip searching of arrestees and pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
23. Pursuant to this written and/or de facto policy, each member of the Class, including the named Plaintiffs, was the victim of a routine strip search upon their transfer and/or entry into one or more of the Facilities. These strip searches were conducted without any inquiry into or establishment of reasonable suspicion, and in fact were not supported by any suspicion at all. Strip searches are conducted for offenses which are non-violent and non-drug related in nature, and, taken alone, do not objectively give rise to a particularized reasonable suspicion that the detainee is concealing weapons, drugs, or other contraband.
24. As a direct and proximate result of the unlawful strip searches conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches have suffered and in the future will suffer psychological pain, humiliation, and mental anguish.
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FACTS APPLICABLE TO THE NAMED PLAINTIFFS AND TO DEFENDANT GEO’S HILL FACILITY
A. NAMED PLAINTIFF ALLISON. 25. In or around November of 2005, Plaintiff Allison was arrested for DUI,
and was ultimately placed on the Accelerated Rehabilitative Disposition program (“ARD”). As a condition of her ARD, Allison was required to pay fines and court costs. In or around July of 2006, Allison paid a fine at the courthouse, but inadvertently failed to appear for a court hearing to finalize her ARD.
26. On July 25, 2006, Allison was stopped by the Springfield Township Police for having an expired registration. The police ran her name through the system and determined that Allison had an outstanding bench warrant for her failure to appear at the court hearing in connection with her ARD proceedings. Allison was arrested, transferred to the Springfield Police Department, and was subsequently transferred to the George W. Hill Correctional Facility (the “Hill Facility”) located at 500 Cheyney Road in Thornton, Pennsylvania.
27. Upon arrival at the Hill Facility, Allison was placed in a holding cell for a few hours, and was then placed in a booking room. Allison then spent approximately 30 minutes answering questions, and was subsequently escorted to another room by a female corrections officer. The female corrections officer instructed Allison to remove all of her clothes, squat and cough. The female correction officer looked at Allison’s bra and remarked that it was a “nice bra.” When Ms. Allison was ultimately released from the Hill Facility eight days later her bra was not returned.
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28. When she later appeared in court, Allison’s attorney explained the misunderstanding, and Allison was released from the Hill Facility. Due to a clerical error at the prison, however, Allison was not released from the Hill Facility until the following day.
29. In or around December of 2007 Allison was arrested for and plead guilty to a second DUI. As part of her sentence, Allison has been and continues to go to the Delaware County Prison for a total of 15 weekends. Allison has been strip searched every time that she enters the Hill Facility. During these strip searches, the corrections officer brings all of the weekend females into a classroom size room and strip searches them one by one in front of all the other females.
30. On one occasion while Allison was being strip searched, a male corrections officer entered the room.
31. As a direct and proximate result of the unlawful strip-searches conducted pursuant to Defendants’ policy, practice and custom, Plaintiff Allison has suffered injuries. B. NAMED PLAINTIFF ZORAN HOCEVAR.
32. Plaintiff Hocevar was arrested in or around March of 2005 for charges stemming from a domestic dispute involving his wife. In August of 2007, all of these charges – with the exception of harassment – were dismissed.
33. Plaintiff Hocevar mistakenly believed that these charges had been resolved, and inadvertently failed to appear at a scheduled court date. A bench warrant was issued for his arrest in or around June of 2006.
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34. In July 2007, Hocevar was stopped in his car in Montgomery County. After police discovered the outstanding warrant, Hocevar was taken to the Hill Facility. Upon entry to the Hill Facility, Hocevar was subject to a strip search in a room with a number of other individuals.
35. As a direct and proximate result of the unlawful strip-searches conducted pursuant to Defendants’ policy, practice and custom, Hocevar has suffered injuries. C. THE HILL FACILITY.
36. The Hill Facility is managed by Defendant GEO pursuant to a contract with Delaware County. Upon information and belief, Defendant GEO has operated the Hill Facility since 1995. In November of 2007, it was reported that Delaware County and Defendant GEO agreed to a contract extension that calls for Defendant GEO to continue to operate the Hill Facility through 2009 under for $80 million. According to an article published in the November 28, 2007 edition of the Philadelphia Daily News, the annual cost of outsourcing the Hill Facility is the single largest expenditure of Delaware County tax dollars. Indeed, it has been reported that the County pays in excess of $3 million per month to Defendant GEO in exchange for operating the Hill Facility.
37. According to Delaware County’s website, the Hill Facility is “responsible for the incarceration of pretrial detainees and persons serving a county sentence of two years less one day or a state sentence of five years less one day.” The County’s website further provides that “[un 2005, the [Hill Facility] maintained
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a daily average population of 1817 residents.” According to GEO’s most recent Form 10-K, the “Design Capacity” for the Hill Facility provides for 1,883 inmates.
38. Defendants had no valid reason for conducting a strip search of Plaintiffs. Rather, Defendants’ strip search of Plaintiffs — and of all members of the Class — was conducted pursuant to a blanket and indiscriminate policy of strip searching each and every detainee processed at the Hill Facility and at the Facilities.
THE DEFENDANTS’ WIDESPREAD ILLEGAL STRIP SEARCH PRACTICE OR POLICY AT THE FACILITIES 39. Upon information and belief, GEO and the John Doe Defendants operate the Facilities pursuant to a contract entered into with a state or local government. According to its SEC filings, GEO claims that it “operate[s] each facility in accordance with our company-wide policies and procedures and with the standards and guidelines required under the relevant management contract.” 40. In carrying out its contractual arrangements with various government entities to maintain, supervise, manage and oversee the Facilities, Defendant GEO has served as a governmental actor for purposes of, among other things, liability under 42 U.S.C. § 1983 and the United States Constitution. The administration of a jail is an activity that is traditionally the exclusive prerogative of the government. The Facilities that are operated by Defendant GEO have all of the attributes of other jails that are publicly run by the government. Furthermore, by entering into agreements that call for Defendant GEO to operate and manage the Facilities (which has resulted in the imposition of the Illegal Strip Search Practice or Policy
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by Defendants), the various governmental entities with which GEO has contracted have affirmatively facilitated, encouraged, or authorized unlawful acts against its citizens. For purposes of this action, Defendants are governmental actors who stand in the shoes of the government(s) on whose behalf it was operating the Facilities. Indeed, Defendant GEO’s most recent Form 10-K filed with the SEC provides that “we are required under our contracts to indemnify the contracting governmental agency for all claims and costs arising out of our management of facilities and, in some instances, we are required to maintain performance bonds relating to the construction, development, and operation of the facilities.”
41. The named Plaintiffs’ experiences at the Hill Facility were not isolated events. As part of their pre-suit investigation, Plaintiffs Counsel has interviewed other pretrial detainees who were charged with relatively minor offenses, and who were also indiscriminately strip searched at the Hill Facility. Furthermore, in an article published in the Philadelphia Inquirer on December 17, 2007, three current and former guards at the Hill Facility acknowledged that Defendant GEO Group employs a blanket strip search policy that calls for the strip search of all detainees regardless of the crime with which they were charged, and without any showing of reasonable suspicion:
The Delaware County jail, now run by a private firm, stripsearches thousands of inmates annually, regardless of charge, according to three current and former guards. County officials would not talk about the strip searches; neither would executives from the company, the Geo Group of Boca Raton, Fla.
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42. Upon information and belief, Defendant’s Illegal Strip Search Practice or Policy is implemented not only at the Hill Facility, but at all jails that Defendants are responsible for overseeing and managing all across the United States. Upon information and belief, for example, Defendants’ have employed a broad strip search policy in its Lawrenceville Correctional Center in Lawrenceville, Virginia. The fact that the Illegal Strip Search Practice or Policy is part of a uniform, company-wide policy at GEO is further demonstrated by GEO’s Form 10-K for the year ended 2006, where it claimed that it “operate[s] each facility in accordance with our company-wide policies and procedures and with the standards and guidelines required under the relevant management contract.”
43. Upon information and belief, Defendants are responsible for the screening, hiring, training, monitoring, and supervision of its corrections officers and other employees at the Facilities. Defendants were directly responsible for the policy making activities at the Facilities, and implemented, enforced, and carried out the Illegal Strip Search Practice of Policy.
CLASS ACTION ALLEGATIONS 44. Plaintiffs bring this action pursuant to Rules 23(a), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals who were strip searched upon admission into one or more of the Facilities (the “Class”). 45. Specifically, the Class that Plaintiffs seek to represent is defined as follows:
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All persons who have been or will be placed into the custody of one or more of the Facilities after being detained for misdemeanors, summary offenses, or other crimes that do not involve the possession or distribution of drugs, possession of weapons, or violent felonies, and who were or will be strip searched upon their admission into one or more of the Facilities pursuant to Defendants’ Illegal Strip Search Policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 46. This action has been brought and may properly be maintained as a class action pursuant to the Federal Rules of Civil Procedure, as Plaintiffs and the Class satisfy the numerosity, commonality, typicality and adequacy requirements for maintaining a class action under FED. R. CIV. P. 23(a). 47. The number of members in the Class is so numerous as to render joinder impracticable. Upon information and belief, there are hundreds of persons who are placed into the Facilities every month - all of whom are members of the proposed Class. Indeed, in Defendant’s Hill Facility alone the average daily inmate population was in excess of 1,800 detainees. In GEO’s 2006 Form 10-K, it claimed that it has “over 54,000 beds under management or for which we had been awarded contracts.” Upon information and belief, the precise size of the Class can be readily determined from documents and records maintained by Defendants. 48. Joinder of all of these individuals is impracticable because of the large number of Class members and the fact that Class members are likely dispersed over a large geographical area, with some members presently residing outside of the geographic area served by this Judicial District. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak
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English, and likely would have great difficulty in pursuing their rights on an individual basis.
49. Common questions of law and fact exist as to all members of the Class, in that they each possessed the right to be free from unreasonable searches, and each were victims of the blanket policy of Defendants that calls for strip searches absent individualized particularized suspicion, as required by law. All members of the Class were detained for non-violent and non-drug related offenses when placed into the custody of the Facilities, and all were illegally strip searched in violation of clearly established law.
50. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs, like all members of the Class, possess (and, at all relevant times, possessed) a constitutional right to be free from strip searches conducted without reasonable suspicion. Plaintiffs and all Class members had their constitutional rights violated as a result of being subjected to the blanket strip search policy of Defendants. As a result, Plaintiffs and all members of the Class were injured due to Defendants’ illegal conduct.
51. Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to, or in conflict with, the interests of the members of the Class.
52. Plaintiffs have retained counsel who have substantial experience and success in the prosecution of class actions and in civil rights litigation. In short,
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Plaintiffs’ counsel has the resources, expertise and experience to successfully prosecute this action against Defendants, and intends to prosecute this action vigorously. Counsel for the Plaintiffs know of no conflicts among members of the Class or between counsel and members of the Class.
53. This action, in part, seeks declaratory and injunctive relief. As such, Plaintiffs seek class certification under FED. R. CIV. P. 23(b)(2), in that all Class members were subject to the same policy which required the illegal strip search of all individuals who are detained and placed into the Facilities. Defendants acted on grounds generally applicable to all class members, thereby making final equitable relief with respect to the Class as a whole appropriate with respect to the Defendants.
54. In addition to certification under FED. R. CIV. P. 23(b)(2), Plaintiffs seek certification under FED. R. CIV. P. 23(b)(3).
55. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy of strip searching all individuals who were committed to the Facilities constitutes a violation of, inter alia, the Fourth and Fourteenth Amendments to the United States Constitution; whether Plaintiffs and members of the Class are entitled to damages and/or equitable relief and, if so, the measure and nature of this relief.
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56. A class action is the superior method for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the Class is impracticable given the large number of Class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the maintenance of this action as a class action in this Court presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
57. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violations of the civil rights of members of the Class.
58. In the alternative to certification under FED. R. CIV. P. 23(b)(3), Plaintiffs also seek partial certification under FED. R. CIV. P. 23(c)(4), if appropriate.
CAUSES OF ACTION COUNT I
MONETARY DAMAGES FOR VIOLATIONS OF 42 U.S.C. § 1983 Against All Defendants
59. Plaintiffs incorporate by reference and re-allege each and every allegation stated in the preceding paragraphs.
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60. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals detained for non-violent, non drug, and non-weapons possession related offenses absent particularized reasonable suspicion that the individual in question has weapons, drugs, or other contraband.
61. The actions of Defendants detailed above violated the Fourth and Fourteenth Amendment rights of Plaintiffs and Class members.
62. The Defendants’ administration and enforcement of the Illegal Strip Search Policy was the direct causal link between Defendants and the constitutional injuries complained of herein. As such, the Defendants are directly liable for the damages of Plaintiffs and members of the Class.
63. Upon information and belief, Defendants are responsible for establishing the policies and procedures to be utilized in the operation of the County Facilities, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, Defendants are responsible for the damages of the Plaintiffs and members of the Class.
64. Upon information and belief, Defendants knew of the strip search policies of the Facilities, and acquiesced in strip searches conducted pursuant to these policies. Defendants’ failure to take action with respect to these policies was the moving force behind the violations of the constitutional rights of Plaintiffs and members of the Class. By maintaining and/or acquiescing in the Illegal Strip Search
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Practice or Policy, Defendants were deliberately indifferent to the risk of constitutional injury to the Plaintiffs and member of the Class.
65. This conduct on the part of the Defendants represents a violation of 42 U.S.C. § 1983, given that their unlawful actions were undertaken under color of state law.
COUNT II DEMAND FOR DECLARATORY JUDGMENT
Against All Defendants 66. Plaintiffs incorporate by reference and re-allege each and every allegation stated in the preceding paragraphs. 67. The policy, custom and practice of the Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Facilities based solely on Defendants’ blanket strip search policy and without any particularized reasonable suspicion that the individuals in question have either weapons, drugs, or other contraband. 68. There exists a present case or controversy between Defendants on the one hand, and Plaintiffs and Class members on the other. Without limitation, these live issues include whether Defendants’ strip search policy, custom and practice is unconstitutional, and whether Plaintiffs and members of the Class have been injured as a result of this policy, custom and practice.
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69. Plaintiffs and members of the Class respectfully request that this Court issue a declaratory judgment against Defendants that declares the Illegal Strip Search Practice or Policy of Defendants to be unconstitutional.
70. In the alternative, Plaintiffs and members of the Class would be irreparably injured absent an order from this Court declaring these practices unlawful and unconstitutional, as Plaintiffs and Class members lack an adequate remedy at law to stop and remedy this illegal conduct.
COUNT III DEMAND FOR PRELIMINARY AND PERMANENT INJUNCTION
Against All Defendants 71. Plaintiffs incorporate by reference and re-allege each and every allegation stated in the preceding paragraphs. 72. The policy, custom and practice of the Defendants is unconstitutional, in that it authorizes the strip searches of all individuals placed into the Facilities without any particularized suspicion that the individuals in question have either contraband or weapons. 73. Upon information and belief, this policy was, until shortly after the filing of this complaint, in place at the Facilities, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the Plaintiffs. An injunction is necessary to ensure that, inter alia, any new policies are lawful, to ensure that the practices at all of the Facilities are in compliance with the law, and to prevent Defendants from reverting to the prior unconstitutional blanket strip search policy.
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74. The continuing pattern of unconstitutionally strip searching individuals has caused and will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
75. Plaintiffs and members of the Class would be irreparably injured absent an order from this Court declaring these practices unlawful and unconstitutional.
76. Plaintiffs and members of the Class are reasonably likely to succeed the on merits of their underlying claim, thereby making the issuance of a preliminary injunction appropriate.
COUNT IV BATTERY Against All Defendants 77. This count is being plead in the alternative to Counts I through III, and only to the extent that Defendant GEO and/or its agents are considered to be afforded any sovereign immunity defenses. 78. Defendants acted intending to cause a harmful or offensive contact with Plaintiff and members of the Class. 79. A harmful contact with the Plaintiffs and Class members directly or indirectly resulted. 80. Plaintiffs have suffered injuries as a result of Defendants’ conduct.
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COUNT V NEGLIGENCE Against All Defendants 81. This count is being plead in the alternative to Counts I through III, and only to the extent that Defendant GEO and/or its agents are considered to be afforded any sovereign immunity defenses. 82. Defendants had a duty to act reasonably under the circumstances. 83. Defendants breached this duty by, inter alia, subjecting Plaintiffs and Class members to its Illegal Strip Search Practice or Policy. 84. Plaintiffs and Class members were injured as a direct and proximate cause of Defendants’ negligence, and as a result of being subjected to Defendants’ Illegal Strip Search Practice or Policy. 85. The injuries suffered by Plaintiffs and Class members were reasonably foreseeable.
COUNT VI INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Against All Defendants 86. This count is being plead in the alternative to Counts I through III, and only to the extent that Defendant GEO and/or its agents are considered to be afforded any sovereign immunity defenses. 87. Defendants’ conduct as described herein is extreme and outrageous. 88. Defendants’ extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to Plaintiff and Class members.
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COUNT VII NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Against All Defendants 89. This count is being plead in the alternative to Counts I through III, and only to the extent that Defendant GEO and/or its agents are considered to be afforded any sovereign immunity defenses. 90. While in their custody and control, Defendant had a contractual or fiduciary duty toward Plaintiff and Class members. 91. Plaintiff suffered a physical impact as a result of Defendants’ conduct described herein. 92. Plaintiffs were in a “zone of danger” and at risk of an immediate physical injury as a result of Defendants’ conduct described herein. 93. Defendants owed a duty of care to the Plaintiffs and Class members. 94. Defendant breached that duty. 95. The breach resulted in injury to Plaintiffs and Class members. 96. Plaintiffs and Class members have suffered an actual loss or damage
DEMAND FOR PUNITIVE DAMAGES 97. The actions of the Defendants detailed herein are outrageous, in that they constitute an illegal strip search policy in the face of numerous court decisions declaring such practices unlawful. The actions of the Defendants were undertaken with reckless disregard and callous indifference to the Fourth and Fourteenth rights of Plaintiffs and Class members.
DEMAND FOR TRIAL BY JURY
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98. Plaintiffs and members of the Class hereby demand a trial by jury. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs on behalf of themselves and on behalf of a Class of others similarly situated, respectfully request that this Court grant them the following relief:
A. An order certifying this action as a class action pursuant to FED. R. CIV. P. 23(a), 23(b)(2) and 23(b)(3);
B. An order against Defendants on Plaintiffs causes of action detailed herein, awarding compensatory damages to Plaintiffs and each member of the proposed class in an amount to be determined at trial;
C. A declaratory judgment against Defendants declaring Defendants’ policy, practice and custom of strip and visual cavity searching all pretrial detainees entering the Facilities, regardless of the crime charged or suspicion of weapons, drugs, or other contraband, to be unconstitutional and improper. Further, Plaintiffs respectfully request that this Court issue a declaratory judgment declaring that Plaintiff and Class members have been injured as a result of the unconstitutional actions of Defendants
D. The issuance of a preliminary and permanent injunction to prevent Defendants from continuing to violate the constitutional rights of Plaintiffs and Class members. An injunction is necessary in order to ensure that, inter alia, any changes to the Defendants’ policies are lawful, to ensure that the actual practices at the Facilities are in compliance with the law and the policies, and to prevent
25

Case 2:08-cv-00467-JD Document 16 Filed 03/28/08 Page 26 of 27
Defendants from reverting back to the prior unconstitutional blanket strip search
policy.; and
E. A monetary award for attorney’s fees and the costs of this action,
pursuant to 42 U.S.C. § 1988 and other applicable fee shifting statutes and
principals.
Dated: March 28, 2008
//s// David Rudovsky ______ David Rudovsky (PA ID 15168) Jonathan H. Feinberg KAIRYS, RUDOVSKY, MESSING
& FEINBERG LLP The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 Office: 215-925-4400 Fax: 215-925-5365 E - mail: drudovsky@krlawphila.com
Joseph G. Sauder (PA ID 82467) Benjamin F. Johns (PA ID 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: JosephSauder@chimicles.com
Christopher G. Hayes (PA ID No. 57253) LAW OFFICE OF
CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610-431-9505 (phone) 610-431-1269 (fax) Electronic Mail: chris@chayeslaw.com
26

Case 2:08-cv-00467-JD Document 16 Filed 03/28/08 Page 27 of 27 Daniel C. Levin (PA ID No. 80013) Charles Schaffer (PA ID No. 76259) LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Lancaster, PA 19106 Telephone: 215-592-1500 Telecopier: 215-592-4663 Electronic Mail: dlevin@lfsb law.com ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS
27

 
 Case 2:08-cv-00467-JD Document 24 Filed 05/02/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR,

:

individually and on behalf of a class of others

:

similarly situated,

:

: 2:08-cv-00467-JD

Plaintiffs,

:

: Judge Jan E. DuBois

v.

:

: Electronically filed

THE GEO GROUP, INC, in its official and individual :

capacities, and JOHN DOES 1 – 100, in their official :

and individual capacities,

:

:

Defendants.

:

:

ORDER

NOW, this

day of ______________, 2008, upon consideration of the

Motion of Defendant The GEO Group, Inc, to Dismiss Counts IV, VI, and VII of Plaintiffs’

Amended Complaint, and upon consideration of the briefs of the parties,

IT IS ORDERED that the motion is GRANTED and Counts IV, VI and VII of Plaintiffs’ Amended Compliant are DISMISSED WITH PREJUDICE.

BY THE COURT:

JAN E. DUBOIS, J.

Case 2:08-cv-00467-JD Document 24 Filed 05/02/08 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR,

:

individually and on behalf of a class of others

:

similarly situated,

:

: 2:08-cv-00467-JD

Plaintiffs,

:

: Judge Jan E. DuBois

v.

:

: Electronically filed

THE GEO GROUP, INC, in its official and individual :

capacities, and JOHN DOES 1 – 100, in their official :

and individual capacities,

:

:

Defendants.

:

:

MOTION OF DEFENDANT THE GEO GROUP, INC. TO DISMISS THE COMPLAINT

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant The GEO

Group, Inc. (“GEO”) moves this Court to dismiss Counts IV, VI, and VII against it contained in

the Plaintiffs’ Complaint. In support of this motion, GEO incorporates herein by reference its

accompanying Memorandum of Law.

Dated: May 2, 2008

Respectfully submitted,

“s”/ Carolyn P. Short

__

Carolyn P. Short, Esq., Id. No. 38199

cshort@reedsmith.com

Sara A. Begley, Esq., Id. No. 49120

sbegley@reedsmith.com

Shannon E. McClure, Esq., Id. No. 164502

smcclure@reedsmith.com

Miriam S. Edelstein, Esq., Id. No. 204557

medelstein@reedsmith.com

REED SMITH LLP

2500 One Liberty Place

1650 Market Street

Philadelphia, PA 19103-7301

Phone: (215) 851-8100

Fax: (215) 851-1420

Attorneys for Defendant,

The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 24 Filed 05/02/08 Page 3 of 3
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Motion of Defendant GEO
Group, Inc. to Dismiss Counts IV, VI, and VII of Plaintiffs’ Amended Complaint has been filed
electronically this 2nd day of May, 2008, and is available for viewing and downloading from the
federal court’s Electronic Case Files system. A copy of the foregoing has been served today
upon the following via electronic mail:
DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING & FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106
BENJAMIN F. JOHNS CHIMICLES & TIKELLIS LLP 361 W. LANCASTER AVE HAVERFORD, PA 19041
CHRISTOPHER G HAYES LAW OFFICES OF CHRISTOPHER G. HAYES 225 SOUTH CHURCH STREET WEST CHESTER, PA 19382
DANIEL C. LEVIN LEVIN, FISHBEIN, SEDRAN & BERMAN 510 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19106
JOSEPH G. SAUDER CHIMICLES & TIKELLIS LLP ONE HAVERFORD CENTRE 361 WEST LANCASTER AVENUE HAVERFORD, PA 19041
“s” /Miriam S. Edelstein Miriam S. Edelstein

 
 Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR,

:

individually and on behalf of a class of others

:

similarly situated,

:

: 2:08-cv-00467-JD

Plaintiffs,

:

: Judge Jan E. DuBois

v.

:

: Electronically filed

THE GEO GROUP, INC, in its official and individual :

capacities, and JOHN DOES 1 – 100, in their official :

and individual capacities,

:

:

Defendants.

:

:

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF DEFENDANT THE GEO GROUP, INC. TO DISMISS
COUNTS IV, VI, AND VII OF PLAINTIFFS’ COMPLAINT

Dated: May 2, 2008

Carolyn P. Short Sara A. Begley Shannon E. McClure Miriam S. Edelstein REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Phone: (215) 851-8100 Fax: (215) 851-1420
Attorneys for Defendant, The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 2 of 11
I. INTRODUCTION Defendant, The GEO Group, Inc. (“GEO”), moves this Court to examine the lack of
factual foundation for several counts of Plaintiffs’ Amended Complaint, and, under the recent clarification in the standard required for withstanding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismiss Counts IV, VI, and VII of Plaintiffs’ Amended Complaint. Plaintiffs Penny Allison and Zoran Hocevar (collectively, “Plaintiffs”) purport to bring this lawsuit against Defendant GEO and as yet unnamed other defendants on behalf of himself as an individual, and those similarly situated to him, as alleged in the Complaint.
As shown below, Plaintiffs’ Amended Complaint fails to allege the necessary facts to state claims under three counts of their Complaint: Battery (Count IV), Intentional Infliction of Emotional Distress (Count VI), and Negligent Infliction of Emotional Distress (Count VII). Because Plaintiffs’ Amended Complaint fails to allege these essential elements, these counts should be dismissed. II. FACTS AS ALLEGED BY PLAINTIFF
A. The Allegations Regarding GEO’s Conduct 1. Penny Allison
Plaintiff Allison (“Allison”) contends that she was arrested for driving under the influence (“DUI”) in November 2005. Amended Complaint ¶ 25. She contends that she was placed into Pennsylvania’s Accelerated Rehabilitative Disposition program (“ARD”). Amended Complaint ¶ 25. Allison paid court costs in July 2006, but contends that she failed to appear for the required ARD hearing. Amended Complaint ¶ 25; Pa. R. Crim. P. 312, 313. The missed court hearing resulted in a bench warrant being issued for Allison’s arrest. Amended Complaint ¶ 26.

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 3 of 11
During a traffic stop for expired registration by Springfield Township Police on July 25, 2006, Allison was arrested for the failure-to-appear outstanding bench warrant. Amended Complaint ¶ 26. Upon her arrest, she was ultimately brought to George W. Hill Correctional Facility in Delaware County (“GWH”). Amended Complaint ¶ 26. Allison contends that she was strip-searched visually by a female corrections officer, despite the lack of a reasonable suspicion that she was carrying any contraband. Amended Complaint ¶ 27. Alison was released approximately eight days later. Amended Complaint ¶ 28.
Allison further contends that she was later arrested again for another unrelated DUI, to which she pled guilty. Amended Complaint ¶ 29. She entered into a DUI weekend program at GWH in November 2007, serving her conviction over approximately fifteen weekends. Amended Complaint ¶ 29. She contends that upon each entry into the weekend facility, she was strip searched visually. Amended Complaint ¶ 29.
2. Zoran Hocevar Zoran Hocevar (“Hocevar”) was arrested in March 2005 after a domestic dispute with his wife. Amended Complaint ¶ 32. In August 2007, he contends that all of his charges were dismissed except the charge for harassment. Amended Complaint ¶ 32. On June 26, 2006, a bench warrant was issued for his arrest after he failed to appear for a required court hearing. Amended Complaint ¶ 33. In July 2007, Hocevar was stopped “in his car” – apparently for a routine traffic violation – and was arrested pursuant to the outstanding bench warrant. Amended Complaint ¶ 34. He was brought to GWH, where he contends that he was visually strip searched. Amended Complaint ¶ 34.
- 2 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 4 of 11
B. Plaintiffs’ Claims Against GEO Plaintiffs’ Amended Complaint purports to assert seven counts against GEO: 1) Monetary Damages for Violation of § 1983; 2) Declaratory Judgment [under § 1983]; 3) Preliminary and Permanent Injunction [under § 1983]; 4) battery; 5) negligence; 6) intentional infliction of emotional distress; and 7) negligent infliction of emotional distress. The first three counts are essentially all a single § 1983 count, broken out by the type of relief sought. Plaintiffs demand compensatory and punitive damages, as well as a judgment declaring the strip search policy unconstitutional and an injunction against enforcement of the policy. Plaintiffs also seek attorneys’ fees and costs. Plaintiffs demand monetary damages from Defendants in their individual, official, and personal capacities – although to date, only GEO has been named as a defendant in this case. C. Lack of Factual Allegations Regarding Multiple Counts of Plaintiffs’
Complaint Plaintiffs’ Amended Complaint lacks the essential factual allegations to properly state claims for battery (Count IV), intentional infliction of emotional distress (Count VI), and negligent infliction of emotional distress (Count VII) under Pennsylvania law. Plaintiffs allege, at most, that they were subjected to visual strip searches. Allison contends that after disrobing in front of a female corrections officer, she was instructed to squat and cough. Amended Complaint ¶ 27. Hocevar contends he was “subject to a strip search in a room with a number of other individuals.” Amended Complaint ¶ 34. Nowhere in Plaintiffs’ Amended Complaint do they allege that they, or any other potential plaintiff, were ever subject to more invasive searching than that described above. Furthermore, Plaintiffs’ Amended Complaint fails to allege that either named Plaintiff, or any other potential plaintiff here, suffered any physical injury, harm or illness caused by any alleged
- 3 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 5 of 11
act by Defendant GEO. Nor does Plaintiffs’ Amended Complaint allege that either named Plaintiff, or any other potential plaintiff here, witnessed any family member subjected to any wrongful and/or traumatizing act by Defendant GEO.
As set forth below, the dearth of factual allegations in Plaintiffs’ Amended Complaint necessitates that, under Pennsylvania law, this Court dismiss their purported claims for Battery (Count IV), Intentional Infliction of Emotional Distress (Count VI), and Negligent Infliction of Emotional Distress (Count VII). III. ARGUMENT
The factual allegations in Plaintiffs’ Amended Complaint are insufficient to state claims for the torts of battery, intentional infliction of emotional distress, and negligent infliction of emotional distress under Pennsylvania law. The legal sufficiency of a complaint is tested by a motion to dismiss. Whitehead v. Craftmatic Organization, No. Civ. A. 94-7770, 1995 WL 327987, at *3 (E.D. Pa. May 30, 1995) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994)); see also ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Lee v. Maleski, Civ. A. No. 94-6331, 1995 WL 3669, at *1 (E.D. Pa. Jan. 4, 1995) (citing Pennsylvania ex. rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir. 1988)).
A. A Complaint Must Allege “More Than Labels And Conclusions” But Must Plead Enough Facts To Raise A Right To Relief Above “Speculative”
In Bell Atlantic Corp. v. Twombly, 550 U.S. ---, 127 S. Ct. 1955 (May 21, 2007), the Supreme Court expressly “retired” the 50-year old statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” As stated by the Supreme Court, “after puzzling the profession for
- 4 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 6 of 11
50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127 S.Ct. at 1969.
Instead, “Rule 8(a)(2) . . . requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Twombly, 127 S. Ct. at 1965 n.3. “Rule 8(a) ‘contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented’ and does not authorize a pleader’s ‘bare averment that he wants relief and is entitled to it.’” Twombly, 127 S. Ct. at 1965 n.3 (quoting 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1202, at 94, 95 (3d ed. 2004)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 127 S. Ct. at 1964-65 (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level,” and “‘the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.’” Twombly, 127 S. Ct. at 1965 (quoting 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, at. 235-236).
“Labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient to withstand a motion to dismiss; rather, the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 127 S. Ct. at
- 5 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 7 of 11
1964-65; see Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (§ 1983 suit) (“After Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead, ‘a complaint must allege facts suggestive of [the proscribed] conduct.’”) (quoting Twombly, 127 S. Ct. at 1969 n.8). As the Third Circuit has recently held, “without some factual allegation[s] in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” Phillips, 515 F.3d at 232 (emphasis added) (construing 12(b)(6) standard pursuant to Twombly).
Further, on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). In deciding whether a claim for relief is supported, a court must consider only the facts that are alleged, and not un-alleged facts that a plaintiff might later prove. Assoc. Contractors of California, Inc. v. California State Counsel of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 902, 74 L.Ed.2d 723 (1983); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (on a motion to dismiss, a court need not assume that the plaintiff can prove facts that were not alleged in the complaint or credit a complaint’s “bald assertions” or “legal conclusions”). A complaint must be dismissed where a plaintiff fails to make “some showing sufficient to justify moving the case beyond the pleadings to the next stage of litigation.” Phillips, 515 F.3d at 235.
B. Plaintiffs’ Battery Claim Must Be Dismissed Under Pennsylvania law, to state a claim for the tort of battery, a plaintiff must allege in the Amended Complaint “a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.” Levenson v. Souser, 557 A.2d 1081, 1088 (Pa. Super. 1989) (quoting Prosser and Keeton, Law of Torts, at 39 (5th ed. 1984)).
- 6 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 8 of 11
Plaintiffs’ Amended Complaint contains only bald assertions that recite these familiar legal elements – but in no way specifies any factual allegations that support these legal elements. See Amended Compl. ¶¶ 78-80. As noted above, there is no allegation that any person touched Plaintiffs Allison or Hocevar during the alleged strip searches, and there is no allegation that Plaintiffs Allison or Hocevar ever had an apprehension that any physical contact was imminent. Furthermore, there are no allegations that any other potential plaintiffs here were touched or had apprehension that physical contact was imminent.
Accordingly, under the standard testing the sufficiency of allegations as stated in Twombly, and in consideration of the essential elements in a claim of battery, Defendant GEO respectfully requests that this Court dismiss Plaintiffs’ purported claim for Battery in Count IV of their Amended Complaint.
C. Plaintiffs’ Intentional Infliction of Emotional Distress Claim Must Be Dismissed
Intentional infliction of emotional distress arises when “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.” Corbett v. Morgenstern, 934 F. Supp. 680 (E.D. Pa. 1996) (citing Restatement (Second) of Torts § 46(1)). Even if the allegations in Plaintiffs’ Amended Complaint rise to the level of “outrageous” conduct as required under Pennsylvania law, to state a claim for intentional infliction of emotional distress, a plaintiff must allege some physical injury, harm or illness caused by the defendant’s conduct. Corbett, 934 F. Supp. at 684.
Here, Plaintiffs do not allege any facts sufficient to establish the requisite physical injury, harm or illness necessary to state a claim for intentional infliction of emotional distress under Pennsylvania law. Rather, Plaintiffs at most aver empty recitations of the legal requirements as follows:
- 7 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 9 of 11

¶ 24:

As a direct and proximate result of the unlawful strip searches conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches have suffered and in the future will suffer psychological pain, humiliation, and mental anguish.

¶ 31: As a direct and proximate result of the unlawful strip-searches conducted pursuant to Defendants’ policy, practice and custom, Plaintiff Allison has suffered injuries.

¶ 35: As a direct and proximate result of the unlawful strip-searches conducted pursuant to Defendants’ policy, practice and custom, Hocevar has suffered injuries.

¶ 88: Defendants’ extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to Plaintiff and Class members.

Under the Twombly standard of pleading discussed supra, Plaintiffs have failed to plead factual

assertions sufficient to establish the injury element of this purported claim. Because Plaintiffs’

Amended Complaint fails to plead this essential element of intentional infliction of emotional

distress, Count IV purporting to allege intentional infliction of emotional distress must be

dismissed.

D. Plaintiffs’ Negligent Infliction of Emotional Distress Claim Must Be Dismissed

Under Pennsylvania law, negligent infliction of emotional distress is a narrow tort, which

generally requires the plaintiff to have witnessed an accident or traumatic injury to a close

relative, caused by the defendant. See, e.g., Love v. Cramer, 606 A.2d 1175 (Pa. Super. 1992).

If a person “does not experience a sensory and contemporaneous observance of the injury,” then

they cannot state a claim. Id. The person seeking the damages must suffer physical injury as a

result of actually witnessing the harm to a close relative. Id. (citing Mazzagatti v. Everingham by

Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Plaintiffs’ Complaint clearly lacks the essential elements to state a claim of negligent

infliction of emotional distress. See Amended Compl., Count VII. Plaintiffs merely allege that

- 8 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 10 of 11

they himself were subject to an unconstitutional visual strip search, and that others similarly situated to him were subject to the same alleged searches. They do not even allege that they witnessed any strip searches of any close relative. See id. Nor does Plaintiffs’ Amended Complaint that they, or any potential plaintiff, witnessed a close relative come to harm by any act of Defendant GEO. See id.
Thus, once again, Plaintiffs’ bald assertions that merely recite the requisite elements of the purported claim are insufficient to survive Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(6). Accordingly, this Court should dismiss Count VII of Plaintiffs’ Amended Complaint. IV. CONCLUSION
For the foregoing reasons, Defendant GEO respectfully requests that this Court dismiss Count IV (Battery), Count VI (Intentional Infliction of Emotional Distress), and Count VII (Negligent Infliction of Emotional Distress) of Plaintiffs’ Amended Complaint, with prejudice.
Respectfully submitted,

Dated: May 2, 2008

“s”/ Carolyn P. Short

__

Carolyn P. Short, Esq., Id. No. 38199

cshort@reedsmith.com

Sara A. Begley, Esq., Id. No. 49120

sbegley@reedsmith.com

Shannon E. McClure, Esq., Id. No. 164502

smcclure@reedsmith.com

Miriam S. Edelstein, Esq., Id. No. 204557

medelstein@reedsmith.com

REED SMITH LLP

2500 One Liberty Place

1650 Market Street

Philadelphia, PA 19103-7301

Phone: (215) 851-8100

Fax: (215) 851-1420

Attorneys for Defendant, The GEO Group, Inc.

- 9 -

Case 2:08-cv-00467-JD Document 24-1 Filed 05/02/08 Page 11 of 11
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Memorandum of Law in
Support of the Motion of Defendant GEO Group, Inc. to Dismiss Counts IV, VI, and VII of
Plaintiffs’ Amended Complaint has been filed electronically this 2nd day of May, 2008, and is
available for viewing and downloading from the federal court’s Electronic Case Files system. A
copy of the foregoing has been served today upon the following via electronic mail:
DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING & FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106
BENJAMIN F. JOHNS CHIMICLES & TIKELLIS LLP 361 W. LANCASTER AVE HAVERFORD, PA 19041
CHRISTOPHER G HAYES LAW OFFICES OF CHRISTOPHER G. HAYES 225 SOUTH CHURCH STREET WEST CHESTER, PA 19382
DANIEL C. LEVIN LEVIN, FISHBEIN, SEDRAN & BERMAN 510 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19106
JOSEPH G. SAUDER CHIMICLES & TIKELLIS LLP ONE HAVERFORD CENTRE 361 WEST LANCASTER AVENUE HAVERFORD, PA 19041
“s” /Miriam S. Edelstein Miriam S. Edelstein

 
 Case 2:08-cv-00467-JD Document 29 Filed 09/18/08 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR,

:

individually and on behalf of a class of others

:

similarly situated,

:

: 2:08-cv-00467-JD

Plaintiffs,

:

: Judge Jan E. DuBois

v.

:

:

THE GEO GROUP, INC, in its official and individual :

capacities, and JOHN DOES 1 – 100, in their official :

and individual capacities,

:

:

Defendants.

:

:

ORDER

NOW, this

day of ______________, 2008, upon consideration of the

Motion of Defendant The GEO Group, Inc. for Judgment on the Pleadings, and upon

consideration of the briefs of the parties,

IT IS ORDERED that the motion is GRANTED and this action is DISMISSED WITH PREJUDICE.

BY THE COURT:

JAN E. DUBOIS, J.

Case 2:08-cv-00467-JD Document 29 Filed 09/18/08 Page 2 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. DuBois : : Electronically filed : : : : Oral Argument Requested : :

MOTION OF DEFENDANT THE GEO GROUP, INC. FOR JUDGMENT ON THE PLEADINGS

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendant The GEO

Group, Inc. (“GEO”) moves this Court for judgment on the pleadings. In support of this motion,

GEO incorporates herein by reference its accompanying Memorandum of Law.

Respectfully submitted,

Dated: September 18, 2008

“s”/ Carolyn P. Short

__

Carolyn P. Short, Esq., Id. No. 38199

Sara A. Begley, Esq., Id. No. 49120

Shannon E. McClure, Esq., Id. No. 164502

Miriam S. Edelstein, Esq., Id. No. 204557

REED SMITH LLP

2500 One Liberty Place

1650 Market Street

Philadelphia, PA 19103-7301

Phone: (215) 851-8100

Fax: (215) 851-1420

Attorneys for Defendant, The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 29 Filed 09/18/08 Page 3 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. DuBois : : Electronically filed : : : Oral Argument Requested : : :

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF DEFENDANT THE GEO GROUP, INC.
FOR JUDGMENT ON THE PLEADINGS

Dated: September 18, 2008

Carolyn P. Short Sara A. Begley Shannon E. McClure Miriam S. Edelstein REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Phone: (215) 851-8100 Fax: (215) 851-1420
Attorneys for Defendant, The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 29 Filed 09/18/08 Page 4 of 18
I. INTRODUCTION Defendant, The GEO Group, Inc. (“GEO”), moves this Court to dismiss Plaintiff’s
Amended Complaint for failing to state any claims upon which relief may be granted for the reasons set forth in the recent Eleventh Circuit en banc decision of Powell v. Barrett, No. 0516734, __ F.3d __, 2008 WL 4072800 (11th Cir. Sept. 4, 2008) (en banc).
Plaintiffs Penny Allison and Zoran Hocevar (collectively “Plaintiffs”) in their Complaint allege that GEO had a “blanket” search policy, whereby all pre-trial detainees arriving at various jails across the country were strip searched without regard to the nature of the offense with which they were charged, and without any individualized suspicion that the detainee was secreting contraband. Many United States Circuit Courts have incorrectly interpreted the United States Supreme Court’s decision in Bell v. Wolfish, finding that Bell requires a particularized showing of reasonable suspicion to justify any strip search of a detainee by a correctional officer.1 Under this reasoning, a blanket policy of strip searching all arriving pre-trial detainees would be unconstitutional.
This individualized suspicion “rule” developed in the lower courts, however, directly contravenes the Bell Court’s holding. In Bell, the Supreme Court upheld a “blanket” strip-search policy that did not require any individualized showing of reasonable suspicion. The analysis dictated by Bell focuses on the reasonableness of strip search policies in the correctional setting, not on the individual circumstances of each search. Under Bell, GEO’s policy is constitutional.
1 The Third Circuit has never ruled on the constitutionality of a blanket strip search policy for incoming pretrial detainees. District courts within the Third Cicuit have held that blanket strip search policies were unconstitutional. See, e.g., Newkirk v. Sheers, 834 F. Supp. 772, 778 (E.D. Pa. 1993).

Case 2:08-cv-00467-JD Document 29 Filed 09/18/08 Page 5 of 18
Since Bell, other Supreme Court decisions set forth a less stringent standard than Bell, mandating that correctional policies affecting pretrial detainees’ constitutionally protected interests may be upheld if found “reasonably related to a legitimate penological goal.”
Plaintiffs’ entire Complaint is wholly derived from the lower courts’ incorrect interpretation of Bell. As the GEO policy is constitutional under the correct interpretation of Bell, as expressed in Powell, all of Plaintiffs’ claims must be dismissed. II. ALLEGATIONS OF PLAINTIFFS’ COMPLAINT
A. Factual Allegations of the Named Plaintiffs. 1. Penny Allison
Plaintiff Allison (“Allison”) contends that she was arrested for driving under the influence (“DUI”) in November 2005. Amended Complaint ¶ 25. She contends that she was placed into Pennsylvania’s Accelerated Rehabilitative Disposition program (“ARD”). Amended Complaint ¶ 25. Allison paid court costs in July 2006, but contends that she failed to appear for the required ARD hearing. Amended Complaint ¶ 25; Pa. R. Crim. P. 312, 313. The missed court hearing resulted in a bench warrant being issued for Allison’s arrest. Amended Complaint ¶ 26.
During a traffic stop for expired registration by Springfield Township Police on July 25, 2006, Allison was arrested for the failure-to-appear outstanding bench warrant. Amended Complaint ¶ 26. Upon her arrest, she was ultimately brought to George W. Hill Correctional Facility in Delaware County (“GWH”). Amended Complaint ¶ 26. Alison was released approximately eight days later. Amended Complaint ¶ 28.
Allison further contends that she was later arrested again for another unrelated DUI, to which she pled guilty. Amended Complaint ¶ 29. She entered into a DUI weekend program at
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GWH in November 2007, serving her conviction over approximately fifteen weekends. Amended Complaint ¶ 29.
2. Zoran Hocevar Zoran Hocevar (“Hocevar”) was arrested in March 2005 after a domestic dispute with his wife. Amended Complaint ¶ 32. In August 2007, he contends that all of his charges were dismissed except the charge for harassment. Amended Complaint ¶ 32. On June 26, 2006, a bench warrant was issued for his arrest after he failed to appear for a required court hearing. Amended Complaint ¶ 33. In July 2007, Hocevar was stopped “in his car” – apparently for a routine traffic violation – and was arrested pursuant to the outstanding bench warrant. Amended Complaint ¶ 34. B. Allegations Regarding GEO’s Strip Search Policy. Plaintiffs contend that GEO has employed a “uniform practice and procedure of strip searching all pre-trial detainees who enter the Facilities, regardless of the crime or violation for which they are detained, and without making the legally required determination of whether reasonable suspicion exists to justify a strip search (‘the Illegal Strip Search Practice or Policy’).” Amended Complaint (“Am. Compl.”) ¶ 1. Plaintiffs contend that the Fourth Amendment prohibits such strip searches, and that “reasonable suspicion to conduct a strip search can only emanate from the particular circumstances attendant to the search.” Am. Compl. ¶¶ 20-21. Plaintiffs contend that GEO had a “company-wide” policy, practice or custom of “uniformly strip searching all individuals placed into the custody of the Facilities without any demonstration or finding of reasonable suspicion.” Am. Compl. ¶¶ 22, 42. Named Plaintiff Penny Allison contends that as a part of the intake process, she answered questions for about 30 minutes, and was then taken into another room by a female corrections
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officer. Am. Compl. ¶ 27. She was instructed to remove all of her clothes, and squat and cough. Am. Compl. ¶ 27.2 Hocevar alleges that he was “subject to a strip search” in a room with other men. Am. Compl. ¶ 34. The Amended Complaint provides no more detail on the manner of the strip searches. III. ARGUMENT
A. Federal Rule Of Civil Procedure 12(c) Mandates Dismissal if Plaintiffs Cannot Succeed on Their Claims.
Rule 12(c) of the Federal Rules of Civil Procedure provides that “after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed. R. C. P. 12(c). This motion is timely since the pleadings are closed, and trial is not scheduled.
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is treated under the identical standard for motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Stocktrans, Inc. v. Rostolder, No. 07-1339, 2007 U.S. Dist. LEXIS 57323, at *7 (E.D. Pa. Aug. 7, 2007) (citing Shelly v. Johns-Manville Corp., 798 F.2d 93, 97, n.4 (3d Cir. 1986); Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 376 (E.D. Pa. 1995)). A 12(c) motion may be granted where the moving party establishes that no material issue of fact remains to be resolved, and that the movant is entitled to judgment as a matter of law. Id. at *7-8 (citing Institute for Scientific Info., Inc. v. Gordon and Breach, Science Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir. 1991)). The court must view the facts and inferences to be drawn from the
2 Plaintiff Allison also alleges that she pled guilty to a later DUI, and served at least part of her sentence on the weekends at GWHCF. Am. Compl. ¶ 29. She contends that female weekender inmates are strip searched as a group, and that one time a male officer walked in during one of these strip searches. Am. Compl. ¶ 29-30. Plaintiffs do not, however, bring any Eighth Amendment claims in this case, and the factual allegations of these paragraphs are not relevant to this Motion.
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pleadings in the light most favorable to the non-moving party. Id. at *8 (citing Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 406 (3d Cir. 1993)).
B. The Supreme Court’s Bell v. Wolfish Decision Approved Routine, Blanket Strip Searches For Pretrial Detainees, Regardless Of The Inmate’s Charges And Without Any Particular Suspicion That The Detainees Were Harboring Contraband.
Many lower courts have misinterpreted the Supreme Court case of Bell v. Wolfish as “requiring … reasonable suspicion as a condition for detention facility strip searches, especially those that involve body cavity inspections.” Powell v. Barrett, __ F.3d __, 2008 U.S. App. LEXIS 18907, at *21-22 (11th Cir. Sept. 4, 2008) (en banc). At least eight courts of appeals, relying on Bell, have disapproved “blanket,” uniform strip search policies, holding that “in order to strip search such detainees, the arresting officers must have reasonable individualized suspicion that a detainee is carrying or concealing contraband.” Newkirk v. Sheers, 834 F. Supp. 772, 778 (E.D. Pa. 1993) (relying on other circuit court cases discussing Bell).
As recently succinctly stated by the Eleventh Circuit, all of “[t]hose decisions misread Bell,” and “the Bell decision, correctly read, is inconsistent with the conclusion that the Fourth Amendment requires reasonable suspicion before an inmate entering … a detention facility may be subjected to a strip search that includes a body cavity inspection.” Powell, 2008 U.S. App. LEXIS at *23. Because Bell plays such a vital role in GEO’s demonstration that its blanket strip search policy is constitutional, the case is summarized here in some detail.3
Bell was a putative class action filed on behalf of all persons detained in the Metropolitan Correctional Center (“MCC”), a federal detention facility located next to the United States
3 As this is a 12(c) motion, the Court must assume that the facts stated in Plaintiffs’ Complaint are true. Thus, GEO has so assumed for the purposes of this motion. Nothing in this motion or memorandum should be construed as admitting, in fact, that a blanket strip search policy or practice exists at any of the facilities involved in this suit; the facts are admitted for the purposes of this procedural context only.
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Courthouse for the Southern District of New York. United States of America ex rel. Louis Wolfish v. Levi, 439 F. Supp. 114, 119 (S.D.N.Y. 1977) (note that when this case eventually reached the Supreme Court, it was captioned Bell v. Wolfish). Plaintiffs included all pre-trial detainees, as well as witnesses in protective custody, prisoners transferred to MCC for trial, persons incarcerated for contempt of court, and sentenced prisoners awaiting permanent prison assignment or serving terms at MCC. Id. The Plaintiffs challenged a wide array of prison conditions, among them the fact that strip searches of MCC inmates were routine following visits, contending that this violated their Fourth Amendment rights. Id. at 146.
Plaintiffs alleged that MCC searched every inmate upon returning to his or her quarters after a visit. During the visits, “the inmates and their visitors [we]re in full view [of guards] during the visits and fully clad. The secreting of objects in rectal or genital areas [would have been] an imposing challenge to nerves and agility.” Id. at 147.
Nevertheless, all inmates, regardless of their charges (and even witnesses in protective custody who were not charged with any crime), were searched after every visit. “In the presence of a corrections officer, the male inmate must remove his clothes, display his armpits, open his mouth, raise his genitals, display the bottoms of his feet, and spread his buttocks for visual anal inspection. Female inmates must follow a similar procedure, including a visual vaginal inspection.” Id. at 146. The district court ordered the prison officials to “cease the routine requirements of anal and genital inspections after visits,” but “left [open] the possibility of visually inspecting anal or genital areas upon a specific and particular demonstration of probable cause for doing so.” Id. at 148. The court held that there were other means of satisfying the MCC’s security concerns, stating that “[i]n all the circumstances, the demands of security are amply satisfied if inmates [as a routine matter] are required to disrobe, to have their clothing
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subjected to inspection, and to present open hands and arms to demonstrate the absence of concealed objects.” Id.
Noting that the United States had “proved only one instance . . . in the several years of [MCC’s] existence when contraband was found during a body cavity inspection,” the Second Circuit Court of Appeals affirmed the district court’s order halting the routine use of visual body cavity searches. Wolfish v. Levi, 573 F.3d 118, 131 (2nd Cir. 1978). Relying on Circuit precedent imposing a heightened “compelling necessity” standard to conditions of confinement imposed upon pretrial detainees, the Second Circuit found that this standard could not be satisfied by reference to the “fiscal necessity . . . [or] administrative convenience” of the correctional institution. Id. at 124.
The United States Supreme Court reversed, upholding the routine post-visit anal and genital inspections under both the Fourth Amendment and Fourteenth Amendment. The Bell Court assumed “for present purposes” that the Fourth Amendment applied to the strip searches, meaning that a “reasonableness test” governed. Id. at 558. This reasonableness test “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id. at 559. In applying the test, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id.
The Court recognized the scope of the intrusion, finding the searches involved exposing body cavities for visual inspection, including lifting genitalia, spreading buttocks, and inspection of vaginal and anal cavities. Id. at 558 & n.39. It noted that the Second Circuit had found that the searches amounted to a “‘gross violation of personal privacy.’” Id. at 558 (quoting Levi, 573 F.3d at 131). As for the manner, the Court “did not doubt” that the visual body cavity searches
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had, on occasion, been conducted in an abusive manner, but found that the MCC general manner – absent abuse – was reasonable. Id. at 560; see also Powell, 2008 U.S. App. LEXIS 18907, at *18-21 (explaining the Supreme Court’s analysis as justifying uniform visual body cavity inspections of pretrial detainees without cause or suspicion).
Nevertheless, and despite stating that the strip search practice “gives us the most pause,” the Court found that the intrusiveness of the search was justified in light of the third and fourth factors – the justification for the searches and the place they were conducted. Bell, 441 U.S. at 558-59. Finding that “[a] detention facility is a unique place fraught with serious security dangers,” the Court noted that the “[s]muggling of money, drugs, weapons and contraband is all to common an occurrence.” Id. at 559. Such body cavity searches were necessary to discover and deter smuggling of weapons, drugs, and contraband. Id. at 558. That only one instance existed in the record where any strip search yielded contraband – an MCC inmate was found to be secreting a balloon of heroin in her vaginal cavity after a visit – “may be more a testament to the effectiveness of the search technique as a deterrent than to any lack of interest on the part of inmates to secrete and import such items.” Id. at 559.4
Viewing the ultimate issue as “whether visual body-cavity inspections as conducted by the MCC rules can ever be conducted on less than probable cause,” the court answered in the affirmative: “Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.” Id. at 560 (emphasis added). Thus, MCC could continue to conduct body cavity inspections on all inmates after each visit, without any cause to suspect contraband. Id. at 558.
4 The Court rejected the district court’s position that less intrusive alternatives existed (such as metal detectors), noting first that the existence of less intrusive alternatives was not a part of the applicable test, and second that the metal detectors would not address the problem of non-metallic contraband. Id. at 559 n.40.
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Justice Powell took issue with the Court’s holding that such searches could be conducted without any individualized showing of cause whatsoever, issuing a three-sentence dissent:
I join in the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue. 441 U.S. at 563 (Powell, J., dissenting) (emphasis added); see also Powell, 2008 U.S. App. LEXIS 18907, at *25-27 (discussing Justice Powell’s dissent). Thus, it is clear that Justice Powell understood that the Bell Court’s majority had just authorized routine, uniform strip searches – without any showing of cause. Justice Marshall understood that too, as evidenced by his dissenting opinion, which stated that “[h]ere, the searches are employed absent any suspicion of wrongdoing,” and disagreeing with the majority’s decision to “uphold these indiscriminate searches.” Id. at 578-78 (Marshall, J., dissenting) (emphasis added).5 Bell therefore establishes that the Fourth Amendment does not require an individualized showing of cause prior to application of a security-related strip-search policy in a correctional facility. Because Plaintiffs’ entire theory of constitutional injury is wholly dependent upon such a Fourth Amendment requirement, Plaintiffs’ strip-search claims must fail as a matter of law on their face.
5 The Powell en banc court also noted that in the thirty years since Bell, the federal Bureau of Prisons continued to employ a blanket visual body cavity inspection policy for pretrial detainees, and no court had attempted to enjoin it. 2008 U.S. App. LEXIS 18907, at *27-30. The Powell court called on “[a]ll other courts” to recognize that Bell does not require reasonable suspicion to justify visual body cavity searches. Id. at *29.
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C. An En Banc Eleventh Circuit Recently Applied Bell At The Motion to Dismiss Stage, Finding that Bell Compelled Dismissal Of A Fourth Amendment Claim Challenging A Blanket Strip Search Policy.
As a recent Eleventh Circuit en banc opinion clearly demonstrates, a uniform policy of strip searching all pretrial detainees as a part of the booking process does not offend the constitution, and claims alleging so are subject to dismissal at the Rule 12 stage. In Powell, eleven former pretrial detainees challenged a blanket strip search policy maintained by a county jail in Georgia. 2008 U.S. App. LEXIS 18907, at *2-3. Eight of those detainees were strip searched as a part of the intake process, and five of those eight were arrested on charges that would not provide reasonable suspicion for such a search. Id. at *3. The district court denied a motion to dismiss, finding that the Plaintiffs’ allegations of a blanket strip search policy were sufficient to state a claim. Id. at *4. Defendants filed a petition for review under 28 U.S.C. § 1292(b), which the district court approved and the Eleventh Circuit accepted. Order (N.D. Ga. Aug. 15, 2005) (attached as Exhibit 1); Order (11th Cir. Dec. 8, 2005) (attached as Exhibit 2). The 3-judge Eleventh Circuit panel affirmed the district court’s denial of the motion to dismiss. 496 F.3d 1288 (11th Cir. 2007). The entire Eleventh Circuit voted for rehearing en banc sua sponte, vacating the panel opinion. Powell v. Barrett, 05-16734-EE Docket at 11 (11th Cir.) (attached as Exhibit 3).
The en banc court reversed, finding that a policy or practice of strip searching all incoming pretrial detainees – without cause or suspicion – was constitutional under Bell v. Wolfish, requiring dismissal of plaintiffs’ Fourth Amendment claims. 2008 U.S. App. LEXIS 18907, at *1. In reversing, the en banc court overruled its own precedent, finding that it was based on a misinterpretation of Bell. Id. at *6-7. After extensively reviewing the Bell decision’s background and its language, the en banc panel came to the inescapable conclusion that Bell,
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“correctly read, is inconsistent with the conclusion that the Fourth Amendment requires reasonable suspicion before an inmate entering or reeentering a detention facility may be subject to a strip search that includes a body cavity inspection.” Id. at *23. In holding that the courts (including itself) had been misinterpreting Bell, the Powell court (1) relied on the fact that the Bell Court had “categorically upheld” a visual body cavity inspection policy under the Fourth Amendment, rejecting a case-by-case analysis, id. at *23-24; (2) found that Justice Powell’s terse dissent would have been addressed by the majority if the dissent had incorrectly summarized the majority’s holding, id. at *25-27; and (3) noted that the Bureau of Prisons still to this day maintains a blanket strip search policy, id. at *27-28.
The Powell court focused on Bell’s consideration of the third and fourth factors in the analysis – the justification for the searches and the place they were conducted. Id. at *19. Finding that “[t]hose two factors merged into one heavy consideration because the searches took place in a detention facility, and the justification for them was the critically important security needs of the facility,” the Eleventh Circuit was convinced that Bell approved blanket strip search policies, provided they were no more intrusive than those in Bell. Id. at *1, *19.
In reaching its conclusion, the en banc court noted that “[t]he need for strip searches at all detention facilities, including county jails, is not exaggerated. Employees, visitors, and (not least of all) the detained inmates themselves face a real threat of violence, and administrators must be concerned on a daily basis with the smuggling of contraband by inmates accused of misdemeanors as well as those accused of felonies.” Id. at *34. The court noted that county jails faced serious gang violence problems, and that where reasonable suspicion has been required, there are instances of contraband being smuggled into jails by those facing less serious charges. Id. at *35. Following the Supreme Court’s mandate that “jailers and corrections officials ‘should
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be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain instructional security,” the Powell court “recognize[d] Bell as authoritative precedent and reach[ed] the result it dictates in this case.” Id. at *39.
D. Plaintiffs’ Claims Should Be Dismissed, As They Are Wholly Based On The Same Misinterpretation Of Bell That Was Rejected In Powell By The En Banc Eleventh Circuit’s Compelling Decision.
Here, Plaintiffs assert that they were subject to an “unconstitutional” blanket strip search policy, made unconstitutional by the sole fact that it was conducted without a reasonable suspicion that they were harboring contraband. Am. Compl. ¶¶ 21-22. Plaintiff Allison contends that she had to “squat and cough,” and Plaintiff Hocevar alleges that he was “subject to a strip search.” Am. Compl. ¶¶ 27, 34. At most, the searches here are no more intrusive than those in Bell – indeed, it appears the searches here may have been less intrusive. Levi, 439 F. Supp. at 146 (district court decision in Bell) (“In the presence of a corrections officer, the male inmate must remove his clothes, display his armpits, open his mouth, raise his genitals, display the bottoms of his feet, and spread his buttocks for visual anal inspection. Female inmates must follow a similar procedure, including a visual vaginal inspection.”). Moreover, the searches here are conducted upon the pretrial detainees’ initial entry into the facility, as opposed to the searches in Bell which were post-visit. Incoming inmates have not been under any supervision whatsoever, and obviously presents a greater security hazard than someone who has just come from an observed visit within the institution, as the MCC inmates in Levi had done. Id. at 146. The well-known dangers of all detention facilities, combined with due deference to correctional officials, dictate that a strip-search is a reasonable security measure upon placement of inmates in the general jail population. Evans, 407 F.3d at 1288-90.
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Because Plaintiffs’ claims are based upon the same fundamental misinterpretation of Bell as has pervaded the lower courts for years, they must be dismissed. The en banc Eleventh Circuit’s compelling decision corrects the lower courts’ repeated misinterpretation of Bell, and this Court should follow its lead.
E. Subsequent Supreme Court Decisions Make Clear That An Even More Deferential Standard Applies To Plaintiffs’ Claims Here, Further Supporting Dismissal.
In Bell, the Supreme Court assumed, without deciding, that the Fourth Amendment applied to pretrial detainee claims based on correctional-setting strip searches. Bell, 441 U.S. at 558-60. Since Bell, however, the Court has decided that the Fourth Amendment does not apply in the correctional setting. Hudson v. Palmer, 468 U.S. 517, 527-28 (1984) (“A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.”); Samson v. California, 547 U.S. 843, 862 (2006) (Stevens, J., dissenting) (admitting that “Hudson v. Palmer does stand for the proposition that ‘[a] right of privacy in traditional Fourth Amendment terms’ is denied individuals who are incarcerated”); see also Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (“Wolfish assumed without deciding that prisoners retain some right of privacy under the fourth amendment. Five years later [in Hudson] the Court held that they do not.”).
Because the Fourth Amendment does not apply, Plaintiffs’ claims must be adjudicated under the general standard applicable to regulatory measures in correctional institutions, where the court asks whether the restriction or condition is “reasonably related to legitimate penological
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interests.” Washington v. Harper, 494 U.S. 210, 223 (1990);6 see also Turner v. Safley, 482 U.S. 78, 89 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). This test applies “even when the constitutional right claimed to have been infringed is fundamental, and the State under other circumstances would have been required to satisfy a more rigorous standard of review.” Harper, 494 U.S. at 223.
Here, as the blanket strip search policy satisfies the more rigorous Bell test, it clearly also satisfies the less stringent test articulated in Harper. This precedent further supports dismissal of Plaintiffs’ claims here. IV. CONCLUSION
This Court should grant The GEO Group, Inc.’s Motion for Judgment on the Pleadings, dismiss Plaintiffs’ claims as failing to state any claim upon which relief can be granted, and dismiss this action in its entirety with prejudice.

Dated: September 18, 2008

Respectfully Submitted,
“s”/Carolyn P. Short Carolyn P. Short, Esq., Id. No. 38199 Sara A. Begley, Esq., Id. No. 49120 Shannon E. McClure, Esq., Id. No. 164502 Miriam S. Edelstein, Esq., Id. No. 204557 REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Attorneys for Defendant The GEO Group, Inc.

6 The Harper test is functionally equivalent to the analysis applied by the Bell Court to the MCC plaintiffs’ other non-strip-search claims. See Bell, 441 U.S. at 539 (holding that if a regulatory measure in a detention facility is “reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment’” and must therefore be upheld).

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CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2008, I served the attached Motion for Judgment
on the Pleadings on behalf of The GEO Group, Inc. on counsel listed below via the Court’s
Electronic Case Filing system:
David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING & FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106
215.925.4400
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041
610.642.8500
Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES
225 South Church Street West Chester, PA 19382
610.431.9505
Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106
215.592.1500
Attorneys for Plaintiffs and Proposed Class
“s”/Shannon E. McClure___ Shannon E. McClure

 
 Case 2:08-cv-00467-JD Document 41 Filed 03/25/09 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, :

individually and on behalf of a class of others :

similarly situated,

:

Plaintiffs,

:

:

v.

:

:

THE GEO GROUP, INC., in its official and :

individual capacities, and JOHN DOES

:

1 – 100, in their official and individual

:

capacities,

:

Defendants.

:

CIVIL ACTION NO. 08-467

DuBOIS, J.

MARCH 24, 2009

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. Penny Allison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Zoran Hocevar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Plaintiff Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Legal Standard for Assessing the Constitutionality of Custodial Strip Searches Under the Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. Fourth Amendment Rights Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. Fourth Amendment Rights in Custodial Facilities . . . . . . . . . . . . . . . . . . 12 3. Bell Standard for Custodial Strip Searches . . . . . . . . . . . . . . . . . . . . . . . 13 B. Defendant’s Arguments that Bell No Longer Applies . . . . . . . . . . . . . . . . . . . . . 14 1. Inmates’ Fourth Amendment Rights in Custodial Facilities Under Hudson v. Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. The Turner v. Safley Standard of Review for Prison Regulations . . . . . . 18 C. The Constitutionality of Suspicionless Arrestee Strip Searches in Custodial Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 1. The Constitutionality of Contact Visit Strip Searches Under Bell v. Wolfish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. Circuit Court Rulings on Arrestee Strip Searches in Custodial Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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a. The Invasion of Rights that the Search Entails . . . . . . . . . . . . . . 29 b. The Need for the Particular Search . . . . . . . . . . . . . . . . . . . . . . . 31 c. Reasonableness and Reasonable Suspicion Standard . . . . . . . . . 34 3. Powell v. Barrett and Defendant’s Powell-Based Arguments . . . . . . . . 35 a. The Source of the Reasonable Suspicion Standard Identified by
Powell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 b. Powell’s Rejection of the Misdemeanor-Felony Distinction and the
Distinction between Contact Visit Strip Searches and Arrestee Strip Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 c. Fourth Amendment Analysis Absent a Factual Record . . . . . . . . 44 D. Plaintiffs’ Fourth Amendment Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
M E M O R A N D U M
I. INTRODUCTION
In this litigation, plaintiffs, detained arrestees at custodial facilities operated by defendant
The GEO Group, Inc. (“GEO”), challenge the legality of strip searches conducted by defendants, GEO and John Does 1 – 100.1 Plaintiffs allege that the searches were performed pursuant to a
blanket policy of strip searching all arrestees and that such a policy violates the Fourth
Amendment to the Constitution of the United States. This Memorandum addresses the issues
presented by defendant GEO’s Motion for Judgment on the Pleadings which seeks to dismiss
Counts I, II, and III of plaintiffs’ Amended Complaint, those that allege Fourth Amendment violations, for failure to state a claim upon which relief may be granted.2
Plaintiffs’ cause of action is based on Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme
1 The Court will use the singular term “defendant” when discussing the alleged strip search policy promulgated by defendant GEO or the Motion for Judgment on the Pleadings filed by defendant GEO. The Court will use the plural term “defendants” when discussing individual strip searches conducted by John Doe defendants pursuant to GEO’s alleged strip search policy.
2 Defendant’s motion does not address Count V of plaintiffs’ Amended Complaint which asserts a state law negligence claim. Counts IV, VI, and VII of the Amended Complaint were previously dismissed by agreement of the parties. (Order of May 30, 2008.)
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Court’s seminal case on the rights of pretrial detainees. Among other rulings, Bell established the Fourth Amendment standard for determining the constitutionality of strip search policies in custodial facilities.3 Applying that standard to a blanket policy which mandated strip searches for all inmates returning from contact visits, the Supreme Court upheld the policy as reasonable under the Fourth Amendment. Following Bell, other courts have used the Bell standard to assess the constitutionality of custodial strip search policies in various contexts. Plaintiffs’ claims rely on those cases which, in assessing custodial strip searches in the arrestee context, strike down blanket polices and the suspicionless searches conducted under those blanket polices as unreasonable and, therefore, unconstitutional.
Defendant’s Motion for Judgment on the Pleadings advances three alternative grounds for dismissal. First, defendant argues that plaintiffs’ Fourth Amendment claims must fail because, under Hudson v. Palmer, 468 U.S. 517 (1984), inmates in custodial facilities do not possess Fourth Amendment rights. Second, in the event that the Court rejects defendant’s Hudson argument, defendant argues that the Court should adjudicate and dismiss plaintiffs’ claims according to the standard of review articulated in Turner v. Safley, 482 U.S. 78 (1987), for prison regulations which impinge on inmates’ constitutional rights, and not according to Bell’s Fourth Amendment standard. Finally, defendant asserts that, even if the Court rejects both of the foregoing arguments and, instead, applies the Bell standard, the outcome in this case is governed by the outcome in Bell, in which the Supreme Court upheld the constitutionality of a blanket strip search policy. In arguing for this application of Bell, defendant relies almost exclusively on
3 For purposes of this Memorandum, the Court uses the term “custodial facility” to refer collectively to jails, prisons, and other detention facilities. The Court uses the term “custodial strip search” to mean a strip search conducted in a custodial facility for non-investigatory purposes.
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Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), a recently issued en banc opinion by the Eleventh Circuit which runs directly counter to the holdings of nine other circuits on this issue.
Although the issues before the court have been addressed by many circuit courts, the Third Circuit has never ruled on the constitutionality of strip searches in detention facilities. This Court must, therefore, look to other circuits for persuasive authority. For the reasons stated in this Memorandum, the Court rejects defendant’s Hudson and Turner arguments and declines to adopt the Eleventh Circuit’s holding in Powell. This Court concludes that under the persuasive authority of nine courts of appeals, plaintiffs have stated a claim for relief. Accordingly, defendant’s Motion for Judgment on the Pleadings must be denied. II. BACKGROUND
A. Procedural History Plaintiffs commenced this action by filing a Complaint against GEO and John Does 1 – 100 in their official and individual capacities on January 30, 2008. On March 28, 2008, plaintiffs filed an Amended Complaint against the same defendants. The Amended Complaint asserts the following causes of action against all defendants: Count I: Monetary damages for Fourth Amendment violations pursuant to 42 U.S.C.
§ 1983 Count II: Demand for declaratory judgment as to Fourth Amendment violations Count III: Demand for preliminary and permanent injunction as to Fourth Amendment
violations Count IV: Battery Count V: Negligence Count VI: Intentional Infliction of Emotional Distress Count VII: Negligent Infliction of Emotional Distress On May 2, 2008, GEO filed an unopposed Motion to Dismiss Counts IV, VI, and VII of
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Plaintiffs’ Amended Complaint. By Order dated May 30, 2008, the Court dismissed those Counts with prejudice. Defendant’s motion to dismiss did not challenge any of plaintiffs’ federal claims (Counts I-III) or plaintiffs’ state law negligence claim (Count V). On June 19, 2008, GEO filed an Answer to the remaining Counts of plaintiffs’ Amended Complaint, and the parties proceeded to conduct discovery.
On September 18, 2008, soon after the issuance of Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) on September 4, 2008, GEO filed the instant motion for judgment on the pleadings. In conjunction with the motion for judgment on the pleadings, defendant filed a Motion for a Protective Order and Stay of Discovery. By Order dated October 10, 2008, the Court granted in part and denied in part defendant’s Motion for a Protective Order and Stay of Discovery, partially staying discovery pending the Court’s ruling on the Motion for Judgment on the Pleadings.
B. Factual Background4 GEO, a Florida corporation, manages numerous correctional, detention, mental health, and residential treatment facilities in the United States (“Facilities”), including the George W. Hill Correctional Facility in Thornton, Pennsylvania (“Hill Facility”). (Am. Compl. ¶¶ 15-16, 26, 36.) Plaintiffs aver that in operating its Facilities, defendant has a written or de facto policy of strip searching “all individuals placed into the custody of the Facilities” including recently arrested individuals and pretrial detainees. (Id. ¶ 22.) The searches are allegedly conducted regardless of the existence of reasonable suspicion or probable cause that any particular individual is carrying weapons or contraband on his person. (Id. ¶¶ 22-23.)
4 This Memorandum recites only those factual allegations contained in the Amended Complaint that are necessary for the determination of the instant motion. All facts are presented in the light most favorable to plaintiffs, the non-moving party.
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Plaintiffs Penny Allison (“Allison”) and Zoran Hocevar (“Hocevar”) each allege that they were subjected to strip searches that were not based on reasonable suspicion. Plaintiffs further allege that a class of similarly situated individuals were subjected to strip searches under similar circumstances, in accordance with the blanket policy and without reasonable suspicion. (Id. ¶¶ 23, 45.) The facts, as they pertain to each named plaintiff and the putative plaintiff class, are as follows.
1. Penny Allison Plaintiff Allison was arrested and charged with driving under the influence (“DUI”) in November 2005. (Am. Compl. ¶ 25.) In lieu of formal prosecution, Allison was placed in a pretrial diversion program known as Accelerated Rehabilitative Disposition (“ARD”). (Id.) In or around July 2006, Allison failed to appear for one of her ARD-related court dates, and a bench warrant issued. (Id. ¶¶ 25-26.) On July 25, 2006, police officers in Springfield, Pennsylvania stopped Allison for driving with an expired registration sticker and arrested her on the outstanding bench warrant. (Id. ¶ 26.) Following arrest, Allison was transferred to the Hill Facility. (Id.) As part of the intake process, a female officer escorted Allison to a private room and instructed her to remove her clothing, squat, and cough. (Id. ¶ 27.) Allison remained in custody for eight days. (Id. ¶¶ 27-28.) At Allison’s next court date, her attorney explained her failure to appear at the earlier court date, and the court ordered that she be released from detention at the Hill Facility. (Id. ¶ 28.) In or around December 2007, Allison pled guilty to a second DUI charge and was sentenced to fifteen weekends of incarceration. At the time the Amended Complaint was filed, Allison had begun serving her sentence by reporting each weekend to the Hill Facility. On each occasion, Allison was ushered into a room along with all of the other female weekend inmates.
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One by one, a corrections officer strip searched each inmate in front of the others. (Id. ¶ 29.) 2. Zoran Hocevar
In or around March 2005, Plaintiff Hocevar was arrested on charges arising out of a domestic dispute. All but one of the related charges were dismissed some time between March 2005 and June 2006.5 Thinking that all of the charges had been resolved, Hocevar mistakenly failed to appear for a scheduled court date in June 2006. A bench warrant issued. (Am. Compl. ¶ 33.)
Police officers in Montgomery County stopped Hocevar’s vehicle in July 2007. (Id. ¶ 34.) Upon discovering the outstanding bench warrant, the officers took Hocevar into custody and transported him to the Hill Facility. (Id.) During his admission to the Hill Facility, Hocevar was strip searched in the presence of other individuals. (Id.)
3. Plaintiff Class Plaintiffs define the proposed class as: All persons who have been or will be placed into the custody of one or more of the Facilities after being detained for misdemeanors, summary offenses, or other crimes that do not involve the possession or distribution of drugs, possession of weapons, or violent felonies, and who were or will be strip searched upon their admission into one or more of the Facilities pursuant to Defendants’ . . . uniform practice and procedure of strip searching all pre-trial detainees who enter the Facilities, regardless of the crime or violation for which they are detained, and without making the legally required determination of whether reasonable suspicion exists to justify a strip search. (Am. Compl. ¶¶ 1, 45.) The salient features of the putative class, for the purposes of ruling on the instant motion are as follows. First, class plaintiffs are minor offenders and/or non-violent, nondrug offenders. Second, class plaintiffs are detained arrestees or pretrial detainees. Finally, class
5 The Amended Complaint states that the charges were dropped in “August of 2007,” but this date appears to be erroneous in that it does not match Hocevar’s chronology of events.
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plaintiffs are subjected to strip searches which are conducted pursuant to a blanket policy and lack individualized reasonable suspicion. (Id. ¶¶ 22-23.) The Court also notes that plaintiffs do not describe the nature of the strip searches mandated by the blanket policy or specify whether the policy requires the inspection of body cavities. III. STANDARD OF REVIEW
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is analyzed under the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Shelly v. Johns-Manville Corp., 798 F.2d 93, 97 n.4 (3d Cir. 1986); Regalbuto v. City of Phila., 937 F. Supp. 374, 376 (E.D. Pa. 1995). A motion for judgment on the pleadings will only be granted where “the plaintiffs would not be entitled to relief under any set of facts that could be proved.” Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001). In determining whether a plaintiff has stated a claim for relief, the court must view the facts and inferences to be drawn from the pleadings in the light most favorable to the non-moving party. Inst. for Scientific Info., Inc. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir. 1991).
A motion for judgment on the pleadings, like a motion to dismiss, tests the legal sufficiency of a claim in light of the facts pled in the complaint. To survive such a motion, “a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level . . . .’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)). In other words, a claim must contain “‘enough factual matter (taken as true) to suggest’” the elements of the claims asserted. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 127 S. Ct. at 1965); accord 5 Wright & Miller, Federal Practice and Procedure § 1216, at 236 (3d ed. 2004) (“[T]he pleading must
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contain something more [than] a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”), quoted in Twombly, 127 S. Ct. at 1965. IV. DISCUSSION
Defendant’s three grounds for dismissal implicate the legal standard to be applied to plaintiffs’ claims and the application of that standard. The Court begins by providing a brief summary of relevant Fourth Amendment principles and then addresses each of defendant’s arguments in turn.
A. Legal Standard for Assessing the Constitutionality of Custodial Strip Searches Under the Fourth Amendment 1. Fourth Amendment Rights Generally
The fundamental purpose of the Fourth Amendment is to “safeguard the privacy and security of individuals against arbitrary invasions” at the hands of the government. Camara v. Mun. Ct. of S.F., 387 U.S. 523, 528 (1967). To differentiate between unconstitutional invasions and constitutionally permissible searches, the Fourth Amendment “impose[s] a standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). Reasonableness, an inherently flexible standard, generally requires balancing the “intrusion on the individual’s Fourth Amendment interests” against the “promotion of legitimate government interests.” Id. at 654. The standard “is not capable of precise definition or mechanical application.” Bell, 441 U.S. at 559. In each case, the court must determine whether the challenged search is reasonable under the particular facts and circumstances before the court. Id.; Terry v. Ohio, 392 U.S. 1, 21 (1968).
In broad terms, the Fourth Amendment has two areas of application. The first, and more common, context involves the individualized search of a person or his belongings, typically in relation to a criminal investigation. In such cases, “the reasonableness standard usually requires,
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at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.” Prouse, 440 U.S. at 654; accord City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). In a later opinion, the Court ruled that there are only two objective standards for the purposes of the Fourth Amendment—probable cause and reasonable suspicion. United States v. Montoya de Hernandez, 473 U.S. 523, 540-41 (1985).
The second context involves suspicionless searches conducted pursuant to search policies. “In [some] situations . . . the balance of interests precludes insistence upon ‘some quantum of individualized suspicion.’” Prouse, 440 U.S. at 654-55; accord Hudson v. Palmer, 468 U.S. 517, 537-38 (O’Connor, J., concurring) (“In some contexts, . . . the Court has rejected the case-by-case approach to the ‘reasonableness’ inquiry in favor of an approach that determines the reasonableness of contested practices in a categorical fashion.”). These searches are often referred to as “special needs” searches because they serve interests “other than the ordinary needs of law enforcement.” Chandler v. Miller, 520 U.S. 305, 313 (1997); Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). The instant case requires this Court to rule on whether the strip searches alleged by plaintiffs belong to “the closely guarded category of constitutionally permissible suspicionless searches.” Chandler v. Miller, 520 U.S. 305, 309 (1997).
By virtue of plaintiffs’ status as detained arrestees, there are two categories under which the challenged strip searches might fall—searches incident to arrest or searches in detention facilities. The parties, by pleading and motion, have only disputed the law governing the latter category. The scope of searches incident to arrest remains relevant, however, for determining what is reasonable in the arrestee context.
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In a quartet of cases, the Supreme Court discussed the extent of searches incident to lawful arrest. In United States v. Robinson, 414 U.S. 218 (1973), the Court held that a search incident to arrest would not be limited to a frisk for weapons but could include a “full search” of the person for both weapons and evidence. Id. at 227-30. The Robinson Court described the full search as a “relatively extensive exploration of the person.” Id. at 227 (quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)); see also id. at 221-23 (describing the search at issue in Robinson). In two subsequent cases, the Court clarified that clothing and possessions could also be searched incident to arrest. Illinois v. Lafayette, 462 U.S. 640, 646-47 (1983) (upholding an inventory search of an arrestee’s personal property at the stationhouse); United States v. Edwards, 415 U.S. 800, 802-04 (1974) (upholding the confiscation of an arrestee’s clothing as evidence at the stationhouse). In Lafayette, the Court clarified Edwards, stating “[w]e were not addressing in Edwards, and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.” Lafayette, 462 U.S. at 645-46 & n.2. Finally, in Schmerber v. California, 384 U.S. 853 (1966), a case decided several years before Robinson, the Court ruled that the Fourth Amendment does not permit searches incident to arrest which involve “intrusions beyond the body’s surface,” such as the drawing of blood. Id. at 769. Instead, such searches must be based on probable cause and, absent exigent circumstances, a warrant. Id. at 770-71; see also Montoya de Hernandez, 473 U.S. at 540-41.
No Supreme Court case discusses the constitutionality of strip searches incident to arrest, which appear to fall between the “full searches” considered by Robinson and the “intrusions beyond the body’s surface” considered by Schmerber. Nevertheless, several circuit courts have ruled that strip searches are not included in the category of permissible searches incident to arrest. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1447-50 (9th Cir. 1991); Mary Beth G. v. City of
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Chicago, 723 F.2d 1263, 1268-71 (7th Cir. 1984); cf Burns v. Loranger, 907 F.2d 233, 236 (1st Cir. 1990). As this precedent demonstrates, plaintiffs’ status as arrestees, standing alone, did not provide a constitutional basis for the suspicionless strip searches alleged in the Amended Complaint. Defendants argue, however, that plaintiffs’ status as arrestees who were detained in a custodial facility did provide such a basis.
2. Fourth Amendment Rights in Custodial Facilities Detention and incarceration necessarily require certain limitations on otherwise protected civil liberties. Hudson v. Palmer, 468 U.S. 517, 524 (1984); Bell v. Wolfish, 441 U.S. 520, 54546 (1979). In custodial facilities, “[t]he curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of ‘institutional needs and objectives.’” Hudson, 468 U.S. at 524. For this reason, the Fourth Amendment rights of inmates are measured differently from those enjoyed by persons who have not been lawfully detained or incarcerated. In fact, because custodial facilities necessarily provide little in the way of personal privacy, Fourth Amendment rights, which only exist where a person has a reasonable expectation of privacy that society is willing to recognize, are significantly diminished in custodial settings. See Hudson, 468 U.S. at 525-28; Bell, 441 U.S. at 557. Courts necessarily play a “limited role” in the administration of detention facilities. Block v. Rutherford, 468 U.S. 576, 584-85 (1984). As the Bell Court recognized, a “detention facility is a unique place fraught with serious security dangers.” Bell, 441 U.S. at 559. Crafting policies which both address the complex issues of a secure residential institution and resolve the day-today problems of a high-risk population is a difficult managerial task and one to which courts are ill-suited. Lewis v. Casey, 518 U.S. 343, 387 n.8 (1996); Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989) (“[T]he judiciary is ‘ill equipped’ to deal with the difficult and delicate problems
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of prison management . . . .”). For this reason, “[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547-48 (noting not only that prison administrators have “a better grasp of [this] domain” than reviewing judges but also that “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches”).
In affording due deference to prison administrators, courts must not, however, abdicate their duty to protect individuals from government overreaching. “[P]risons are not beyond the reach of the Constitution,” Hudson, 468 U.S. at 523, and courts must ensure that the actions and policies of prison officials do not deprive inmates of those constitutional rights that have been recognized to exist in custodial facilities. One such right is the Fourth Amendment protection from unreasonable custodial strip searches.
3. Bell Standard for Custodial Strip Searches In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court addressed the constitutionality of two types of searches conducted in custodial facilities: cell searches which inmates were not permitted to observe and strip searches following contact visits. For both searches, the Court assumed without deciding that “inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility.” Id. at 557, 558. The Court upheld both searches as reasonable under the Fourth Amendment. Id. In reviewing the strip search policy, the Court provided the following Fourth Amendment standard. Noting that the Fourth Amendment prohibits “unreasonable searches” and that the “test of reasonableness . . . requires a balancing of the need for the particular search against the invasion of personal rights that the search entails,” the Court proceeded to state four factors which courts
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must consider: “[1] the scope of the particular intrusion, [2] the manner in which it is conducted, [3] the justification for initiating it, and [4] the place in which it is conducted.” Id. at 559.
The Fourth Amendment standard that Bell articulated for custodial strip searches is not unique to Bell. The Court affirmed the same balancing approach that it had applied in other Fourth Amendment contexts. Delaware v. Prouse, 440 U.S. 648, 654 (1979). Further, the Court identified the relevant factors by reference to other cases which questioned the validity of routine, non-investigatory searches and seizures. See, e.g., Prouse, 440 U.S. 648 (striking down random, suspicionless car stops); United States v. Ramsey, 431 U.S. 606 (1977) (upholding suspicionless border searches generally and for international mail); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (upholding suspicionless car stops made at reasonably located, permanent checkpoints near the border); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (striking down suspicionless car stops made by roving patrols near the border); Camara v. Mun. Ct. of S.F., 387 U.S. 523 (1967) (requiring “area” warrants for building code inspections, but upholding suspicionless searches of individual residences located within the area covered by warrant); Terry v. Ohio, 392 U.S. 1 (1968) (upholding limited “stop and frisk” procedure on less than probable cause, but requiring reasonable suspicion).
B. Defendant’s Arguments that Bell No Longer Applies Since Bell, most courts faced with challenges to the constitutionality of custodial strip searches have relied on the standard articulated in Bell. See, e.g., Powell v. Barrett, 541 F.3d 1298, 1302-03 (11th Cir. 2008) (en banc); Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997); Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989); Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985); Hill v. Bogans, 735 F.2d 391, 393 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 (7th
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Cir. 1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981). Nevertheless, defendant now argues that two Supreme Court cases following Bell, Hudson v. Palmer, 468 U.S. 517 (1984), and Turner v. Safley, 482 U.S. 78 (1987), have so undermined Bell’s Fourth Amendment approach to custodial strip searches that Bell no longer controls the adjudication of plaintiffs’ claims. For the reasons that follow, this Court rejects both of defendant’s arguments.
1. Inmates’ Fourth Amendment Rights in Custodial Facilities Under Hudson v. Palmer
The first question before the Court is whether persons who are detained or incarcerated in custodial facilities enjoy the protection of the Fourth Amendment at all. For the contact visit strip searches of pretrial detainees in Bell, the Supreme Court “assume[d without deciding] that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility.” Bell, 441 U.S. at 558. Five years later, in Hudson v. Palmer, 468 U.S. 517, 526 (1984), the Court revisited the issue of inmates’ Fourth Amendment rights in the context of a cell search challenged by a convicted prisoner. The Hudson Court held that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson, 468 U.S. at 526. Defendant relies on Hudson’s broadest language to argue that the Hudson holding effectively overrules Bell by rendering all Fourth Amendment claims by inmates non-cognizable. Plaintiffs argue that Hudson is limited to cell searches and does not, therefore, disturb Bell. The parties’ arguments bring into focus the distinction between cell searches and strip searches in custodial facilities.
In Hudson, the Court considered a cell search challenged by a convicted inmate and questioned whether the inmate had a reasonable expectation of privacy in his cell which would
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entitle him to Fourth Amendment rights. Hudson, 468 U.S. at 522. The Court concluded that the “recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Id. at 526 (emphasis added). In reaching this conclusion, the Hudson Court cited Bell with approval and at no point overruled Bell’s holding or analysis. Moreover, Hudson does not stand alone. It is one of a pair of opinions issued the same day on the constitutionality of cell searches. In the other case, Block v. Rutherford, 468 U.S. 576 (1984), the Court considered a cell search challenged by a pretrial detainee. While Hudson does not mention Bell’s Fourth Amendment assumption, Block specifically affirms it with regard to pretrial detainee cell searches. Block, 468 U.S. at 586 (upholding Bell’s conclusion that prison cell searches do not violate pretrial detainees’ presumed Fourth Amendment rights).
The majority of circuit courts that have considered the relationship between Hudson and Bell have limited Hudson to cell searches and have held, either explicitly or implicitly, that Hudson did not disturb Bell’s Fourth Amendment approach to analyzing the constitutionality of strip searches conducted in custodial settings. See Elliot v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir. 1994) (holding that inmates’ Fourth Amendment protection from unreasonable strip searches survives Hudson); Watsy v. Ames, No. 87-1660, 1988 WL 24978, at *2 (6th Cir. 1988) (ruling Hudson inapplicable in a strip search case because it “dealt with the search of a cell as opposed to the search of an individual”); Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir. 1992) (stating that “prison inmates retain protected privacy rights in their bodies, although these rights do not extend to their surroundings” and citing Hudson and Bell); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (holding that incarcerated prisoners have Fourth Amendment-protected privacy interests after Hudson and despite Hudson’s broad language); Dunn v. White, 880 F.2d 1188,
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1191 (10th Cir. 1989) (holding that even after Hudson, “the prisoner’s privacy interest in the integrity of his own person is still preserved under [Bell]”); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (“While we acknowledge the clear teaching of the Supreme Court’s holding in Hudson with respect to prison spaces, we believe that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy.”); see also Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987) (limiting the Hudson holding to prison cells and assessing whether plaintiff prisoner had a reasonable expectation of privacy with regard to her person entitling her to Fourth Amendment protection); Bonitz v. Fair, 804 F.2d 164, 170 & n.6 (1st Cir. 1986), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124 (1st Cir. 1988) (applying Bell’s Fourth Amendment analysis to a strip search but denying plaintiff’s cell search claim under Hudson); Nicholas v. Goord, 430 F.3d 652, 675-76 (2d Cir. 2005) (recognizing the distinction between Hudson which denied the availability of Fourth Amendment rights as applied to cell searches and Bell which held that the strip searches after contact visits in that case did not violate the Fourth Amendment). But see Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (holding that Hudson overruled Bell’s assumption and abrogated convicted prisoners’ Fourth Amendment rights);6 Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992) (erroneously attributing to Bell the holding that “persons lawfully arrested on probable cause and detained lose a right of privacy from routine searches of the cavities of their bodies”).7
6 Eight years after Phelan, the Seventh Circuit applied Bell’s Fourth Amendment analysis to a custodial search during which an arrestee was required to strip down to her undergarments while under the observation of an officer. Stanley v. Henson, 337 F.3d 961, 964-67 (7th Cir. 2003). Stanley cited Phelan for the principle that “[o]bservation is a form of search,” but did not reference Phelan’s Hudson-Bell holding. Stanley, 337 F.3d at 694 (citing Phelan, 69 F.3d at 145).
7 The Eighth, Third, and D.C. Circuits have not addressed the relationship between Bell and Hudson.
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Although none of the cases cited above explain the Bell-Hudson relationship in much detail, the vast majority clearly distinguish Hudson from Bell and support the continuing validity of Bell with regard to the constitutionality of custodial strip searches. This Court agrees with that distinction. Strip searches of the body, such as those at issue in Bell, inflict a much greater invasion of privacy than searches of prison cells. This fact suggests that the Hudson Court would not overrule, sub silentio, Bell’s implied assumption that pretrial detainees have a reasonable expectation of privacy with regard to their own bodies. Although the Supreme Court’s Bell holding is based on an assumption that the Fourth Amendment governs strip searches in custodial facilities, that assumption survives Hudson and controls the Court’s review of plaintiffs’ claims.
In reaching this conclusion, the Court is particularly mindful of the Supreme Court’s caution in approaching claims that the Fourth Amendment is inapplicable in a given context, Hudson, 468 U.S. at 525, and of the Supreme Court’s admonition that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson / Am. Express, Inc., 490 U.S. 477, 484 (1989); accord Hohn v. United States, 524 U.S. 236, 252-53 (1998); Agostini v. Felton, 521 U.S. 203, 237 (1997). In light of the foregoing, this Court rejects defendant’s argument that plaintiffs’ claims should be dismissed on the ground that Hudson deprives inmates of Fourth Amendment rights.
2. The Turner v. Safley Standard of Review for Prison Regulations Defendant next argues that this Court should employ the standard articulated in Turner v. Safely, 482 U.S. 78, 89-91 (1987), for assessing the constitutionality of prison regulations generally, instead of the more specific Fourth Amendment test that Bell applied to strip searches.
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According to the Turner standard, defendant’s strip search policy would be constitutional as long as “it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. The Supreme Court elaborated on the standard by enumerating four relevant factors: “whether the regulation has a valid, rational connection to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are ready alternatives to the regulation.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (citing Turner, 482 U.S. at 89-91) (internal quotations omitted).
The Turner plaintiffs, inmates of a correctional institution in Missouri, challenged certain prison regulations under the First and Fourteenth Amendments of the United States Constitution. Turner, 482 U.S. at 81. The district court and the court of appeals applied a strict scrutiny standard to plaintiffs’ claims and held the regulations unconstitutional. Id. at 83. The “task” facing the Supreme Court was “to formulate a standard of review for prisoners’ constitutional claims.” Id. at 85. The Supreme Court, rejecting the appropriateness of strict scrutiny for reviewing the constitutionality of prison regulations, reversed the lower court holdings and substituted the modified rational basis standard quoted above. Id. at 81, 89-91.
Turner, and the Supreme Court cases which apply Turner, concern First and Fourteenth Amendment challenges to prison regulations, not Fourth Amendment challenges. Overton v. Bazzetta, 539 U.S. 126 (2003); O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Washington v. Harper, 494 U.S. 210 (1990); Turner, 482 U.S. 78. Indeed, the standards of review discussed in Turner have never had any application in the Fourth Amendment context because the Fourth
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Amendment mandates a different standard—reasonableness.8 Although a number of courts, including most courts of appeals, have ruled on the
constitutionality of strip searches in custodial facilities, defendant has cited no case which applies the Turner test instead of the Bell test in circumstances similar to those at bar involving arrestees. In fact, only two courts of appeals, the Second and Ninth Circuits, have even addressed Turner’s applicability to custodial strip search cases. This Court is not persuaded by the analysis of those circuits.
The Ninth Circuit, in Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988), stated that Turner “set forth the standard for reviewing alleged infringements of prisoners’ constitutional rights,” id. at 331, and purportedly applied that standard to the plaintiff’s claim that he was unconstitutionally strip searched at the Nevada state prison. The Michenfelder court’s analysis, however, relied almost exclusively on the balancing test set forth in Bell. Id. at 331-33. After evaluating the reasonableness of the prison’s strip search policy with regard to each of Bell’s four factors, the court concluded by invoking the language of the Turner test. Id. at 333 (affirming the district court’s finding that the prison’s “strip search policy was reasonably related to legitimate penological interests”). Subsequent Ninth Circuit cases have continued Michenfelder’s practice of applying Bell through Turner to strip searches in prisons. See Thompson v. Souza, 111 F.3d 694 (9th Cir. 1997); Cuffle v. Agnos, No. 93-16842, 1994 WL 245935 (9th Cir. 1994); Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989). The Michenfelder approach has not been adopted by other courts of appeals and, in any case, does not support the more deferential review that defendant seeks by arguing for the application of Turner in this case.
8 This Court is not aware of any Supreme Court opinions which even mention standards of review, such as strict scrutiny or rational basis, when ruling on Fourth Amendment challenges, much less any cases which actually apply such a standard to a Fourth Amendment challenge.
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The Second Circuit applies both Bell and Turner to claims involving custodial strip searches but differentiates based on the type of facility. It restricts Turner to cases involving prison regulations, Iqbal v. Hasty, 490 F.3d 143, 171-72 (2d Cir. 2007), and analyzes strip search policies in jails using the Bell balancing test, Shain v. Ellison, 273 F.3d 56, 65-66 (2d Cir. 2001).9 The Second Circuit developed the distinction between “prisons” and “jails” to reconcile its own prior treatment of custodial strip search cases, and it provides little support for defendant’s argument that this Court should apply Turner in the instant case. See Iqbal, 490 F.3d at 172; Shain v. Ellison, 273 F.3d at 65-66. Indeed, other Second Circuit cases express doubt as to the appropriateness of the Turner test for evaluating Fourth Amendment claims and claims by pretrial detainees, regardless of the type of facility. N.G. v. Connecticut, 382 F3d 225, 235 (2d Cir. 2004) (“[T]here is some basis for doubting that the Turner standard applies to a claim of constitutional protection from state action such as a strip search. Turner concerned prisoners’ assertion of affirmative rights [under the First and Fourteenth Amendments].”); Benjamin v. Frazer, 264 F.3d 175, 187 n.10 (2d Cir. 2001) (questioning whether Turner’s focus on “penological interests” provides an “appropriate guide” for assessing constitutional claims by pretrial detainees). The Second Circuit decisions on this issue do not persuade this Court to apply Turner to the facts at bar.
Ultimately, defendant’s Turner argument fails for the same reason that defendant’s Hudson argument failed. Like Hudson, Turner cited Bell with approval and did not at any point
9 The Second Circuit uses Black’s Law Dictionary to define “prisons” and “jails”: “A prison is ‘[a] state or federal facility of confinement for convicted criminals, esp[ecially] felons.’ A jail, on the other hand, is ‘[a] place where persons awaiting trial or those convicted of misdemeanors are confined.’” Shain v. Ellison, 273 F.3d at 65 (internal citations omitted); see also Iqbal v. Hasty, 490 F.3d at 172 (concluding that the Metropolitan Detention Center in Brooklyn, NY was “most like a prison” because the plaintiff “was confined for an extended period of time in a prison-like environment” and was apparently “charged with felonies”).
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suggest that Bell’s approach to Fourth Amendment claims should no longer be controlling law. Turner, 482 U.S. at 87 (citing to the portions of Bell which discussed petitioners’ First Amendment claims). This Court will not disregard controlling Supreme Court precedent that has not been specifically overruled by subsequent Supreme Court cases. See Powell, 541 F.3d at 1302 (declining to apply the Turner test to custodial strip searches on this ground); cf Johnson v. California, 543 U.S. 499, 509-10 (2005) (holding that Turner did not “cast doubt on” the Court’s previous holding that strict scrutiny applies to racial classifications in prisons). Like the many courts that have addressed the constitutionality of custodial strip searches, this Court is guided by Bell and its progeny.
C. The Constitutionality of Suspicionless Arrestee Strip Searches in Custodial Facilities
Having determined that Bell’s Fourth Amendment standard is the appropriate test by which to measure the viability of plaintiffs’ claims, the Court now turns to the constitutionality of suspicionless arrestee strip searches under that standard. Prior to the issuance of Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), the numerous opinions of nine other circuit courts clearly established that the Fourth Amendment prohibits suspicionless arrestee strip searches. See, e.g., Chapman v. Nichols, 989 F.2d 393, 397-99 (10th Cir. 1993) (rejecting defendant’s qualified immunity claim); Masters v. Couch, 872 F.2d 1248, 1257 (6th Cir. 1989) (same); Weber v. Dell, 804 F.2d 796, 803-04 (2d Cir. 1986) (same); Jones v. Edwards, 770 F.2d 739, 742 n.4 (8th Cir. 1985) (same). The consensus was that arrestee strip searches in custodial facilities must be based on reasonable suspicion. See, e.g., Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Dismissing the virtually unanimous circuit precedent on this issue, the Eleventh Circuit, in Powell, ruled that
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suspicionless arrestee strip searches do not violate the Fourth Amendment and that all opinions to the contrary misread Bell. Powell, 541 F.3d at 1302, 1306-1307. Defendant now argues that this Court should “join Powell in standing against [the] litany of incorrectly[ ]decided cases.” (Def. Reply at 10.)
After conducting a thorough review of Bell, the circuit court cases following Bell, and Powell, this Court is unconvinced by the reasoning of the Eleventh Circuit and rejects defendant’s argument that plaintiffs have failed to state a claim under Bell and its progeny. To fully explain its rejection of the Powell opinion, this Court must describe, at some length, the Supreme Court’s holding in Bell and the reasoning of the circuit opinions which followed Bell.
1. The Constitutionality of Contact Visit Strip Searches Under Bell v. Wolfish
The Bell opinion primarily concerns the Due Process right “to be free from punishment” during pretrial detention and the Supreme Court’s assessment of whether particular prison practices constitute punishment. Bell, 441 U.S. at 534. In addition, however, the Supreme Court ruled on practices that were alleged to violate various express guarantees of the Constitution, including the practice of strip searching all pretrial detainees after contact visits which was alleged to violate the Fourth Amendment. The Supreme Court’s analysis of the challenged strip search policy, a subject of significant controversy after Powell, is outlined below. The important questions, for present purposes, are (1) whether the Court approved suspicionless searches or required some level of individualized suspicion and (2) whether the Court’s holding applies to all custodial strip search policies and not just the contact visit strip search policy at issue in Bell.
Bell began as a class action petition10 which challenged certain conditions of confinement
10 The petitioners filed a petition for a writ for habeas corpus that was later certified as a class action. Despite this unusual procedural posture, the Supreme Court addressed petitioners’
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at the Metropolitan Correctional Center (MCC), a custodial facility in New York City. Bell, 441 U.S. at 523. The Bell petitioners were federal pretrial detainees who had been detained pursuant to a determination by a federal judge that no less drastic means could reasonably ensure their presence at trial. Id. at 524 (citing the Bail Reform Act of 1966, Pub. L. No. 89-465, § 3, 80 Stat. 214, 214). The MCC also housed convicted prisoners, persons in protective custody, and persons incarcerated for contempt, but they were not parties to the Supreme Court proceeding. Id. at 524, 529-30. The petition “served up a veritable potpourri of complaints that implicated virtually every facet of the institution’s conditions and practices,” including the MCC’s policy and practice of strip searching inmates after each contact visit. Id. at 527-28, 558. These searches involved both the removal of all clothing and the visual inspection of body cavities. Id. at 558 & n.39
At trial on the constitutionality of the MCC’s contact visit strip searches, the district court approved the blanket policy with regard to the observation of inmates’ naked bodies but held that it was unconstitutional to the extent that it authorized visual body cavity searches absent probable cause to believe that the inmate was concealing contraband. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 148 (S.D.N.Y. 1977). The Second Circuit affirmed. Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978). Consequently, the question before the Supreme Court was “whether visual body-cavity inspections as contemplated by the MCC rules [for contact visit strip searches] can ever be conducted on less than probable cause.” Bell, 441 at 560 (emphasis in original). The Court answered that question in the affirmative, holding that the MCC’s blanket policy of searching all inmates after contact visits was reasonable.
claims on the merits. Bell, 441 U.S. at 526 & nn.5-6 (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement . . . .”).
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The Court began its analysis of the strip search issue by admitting that “this practice instinctively gives us the most pause.” Bell, 441 U.S. at 558. The Court then proceeded to assess the reasonableness of the challenged search policy by balancing “the need for the particular search against the invasion of personal rights that the search entail[ed].” Id. at 559. The Court considered “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. As discussed in Part IV.A of this Memorandum, the above standard is a version of the test that the Supreme Court has developed for assessing the reasonableness of “special needs” searches—those which can be conducted without the Fourth Amendment’s default requirement of individualized suspicion.
With regard to the scope of the intrusion, the Bell Court described the searches as follows: “If the inmate is a male, he must lift his genitals and bend over to spread his buttocks for visual inspection. The vaginal and anal cavities of female inmates also are visually inspected. The inmate is not touched by security personnel at any time during the visual search procedure.” Bell, 441 U.S. at 558 n.39 (emphasis in original). The Court stated that it did “not underestimate the degree to which these searches may invade the personal privacy of inmates” and quoted the Second Circuit’s view that such searches represent a “‘gross violation of personal privacy.’” Id. at 558, 560 (quoting Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978)). With regard to the manner of the searches, the Court observed that the district court had found some evidence of abuse. Id. at 560. Declaring that “[s]uch an abuse cannot be condoned,” the Court restricted its review to searches conducted in an appropriate manner pursuant to the MCC policy. Id.
On the other side of the equation were the needs of the institution. The Court characterized detention facilities as “unique place[s] fraught with serious security dangers” and described the risks posed by the smuggling of money, drugs, and weapons. Bell, 441 U.S. at 559.
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Corrections officials justified the searches by stating that they were necessary both to detect contraband exchanged and concealed during contact visits and to deter the smuggling of contraband during contact visits. Id. at 558. At trial, the evidence showed that the MCC strip searches had successfully detected contraband only once, but the Court found this evidence inconclusive because it could “be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.” Id. at 559.
Despite the highly intrusive nature of the searches, the Court found that the inmates’ privacy interests were outweighed by the “significant and legitimate security interests of the institution” and upheld the MCC’s contact visit strip search policy as reasonable. Bell, 441 U.S. at 558, 560. In upholding a blanket policy, the Court concluded that custodial strip searches could “be conducted on less than probable cause” and, indeed, that they could be conducted without any individualized assessment of cause. Id. at 560. Essentially, the Court placed the MCC’s contact visit strip searches in the “closely guarded category of constitutionally permissible suspicionless searches,” Chandler, 520 U.S. at 309, which are reasonable based on the government needs at stake and not because the government has cause for each individual search. Because the Court determined that the blanket policy was reasonable on the facts before it, it had no occasion to rule on what factual circumstances might make a custodial strip search policy unreasonable. It also had no reason to require a particular level of individualized suspicion—reasonable suspicion or probable cause—in order to uphold custodial strip searches that would be unreasonable if suspicionless.
2. Circuit Court Rulings on Arrestee Strip Searches in Custodial Facilities
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standard in cases involving recently arrested persons who were subjected to suspicionless strip searches upon admission to a custodial facility and ruled that such searches were unconstitutional. Powell correctly notes that while these decisions “vary in detail around the edges, the picture they paint is essentially the same.” Powell, 541 F.3d at 1309. In each case, a person is arrested on charges which do not involve narcotics or violence. In some cases, the charges were relatively minor. See, e.g., Walsh v. Franco, 849 F.2d 66, 67 (2d Cir. 1988) (failure to pay parking tickets); Stewart v. Lubbock County, 767 F.2d 153, 154 n.1 (5th Cir. 1985) (public intoxication and issuance of a bad check); Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985) (leash law violation). In other cases, the charges were more serious. See, e.g., Logan v. Shealy, 660 F.2d 1007, 1009 (4th Cir. 1981) (DUI); Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 704 (9th Cir. 1990), overruled on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (grand theft). After arrest, the person is taken to a police station, jail, or other detention facility. At that facility, the person is strip searched as part of the intake or admission process. The scope of the strip searches varied. See, e.g., Hill v. Bogans, 735 F.2d 391, 393 (10th Cir. 1984) (arrestee instructed to drop pants and shorts); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (visual observation of arrestee’s naked body); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1266-67 (7th Cir. 1984) (visual body cavity inspection). Soon thereafter, the person is released.
Although it is difficult to precisely characterize the collective holdings of these cases, especially considering the fact-sensitive nature of reasonableness analysis, suffice it to say that all nine circuits found suspicionless strip searches of recently arrested persons unreasonable and therefore unconstitutional. Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters v. Crouch,
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872 F.2d 1248, 1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Jones v.
Edwards, 770 F.2d at 741-42; Stewart, 767 F.2d at 156-57; Giles v. Ackerman, 746 F.2d at 617;
Hill v. Bogans, 735 F.2d at 394-95; Mary Beth G., 723 F.2d at 1273; Logan v. Shealy, 660 F.2d at 1013.11 These courts held that, to be reasonable, custodial strip searches of detained arrestees
must be predicated on reasonable suspicion. The “[r]easonable suspicion may be based on such
factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest
record.” Giles v. Ackerman, 746 F.2d at 617.
In none of the cases cited above did the court determine that Bell’s reasonableness ruling
with regard to the MCC’s contact visit strip searches controlled the reasonableness of custodial
strip searches in other contexts. Rather, each court recited Bell’s Fourth Amendment standard
and then proceeded to apply that standard to the facts before it. In balancing “the need for the
particular search against the invasion of rights that the search entails,” courts considered the
factors identified by Bell (“the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted”) and
considered the Bell Court’s analysis of those factors. Bell, 441 U.S. at 559. From the ample
11 Most circuits have also affirmed the holdings of the above-cited cases in subsequent opinions. As the Court noted in the Introduction, the Third Circuit has not ruled on the constitutionality of custodial arrestee strip searches. Several district courts in the Third Circuit have ruled on this issue, however. Those opinions also hold that suspicionless custodial strip searches of detained arrestees violate the Fourth Amendment. Florence v. Bd. of Chosen Freeholders of Burlington, No. 05-3619, 2009 WL 252174, at *16 (D.N.J. Feb. 4, 2009); Martinez v. Warner, No. 07-3213, 2008 WL 2331957, at *14-15 (E.D. Pa. June 5, 2008); Newkirk v. Sheers, 834 F. Supp. 772, 789-90 (E.D. Pa. 1993); Ernst v. Borough of Fort Lee, 739 F. Supp. 220, 224 (D.N.J. 1990); O’Brien v. Borough of Woodbury Heights, 679 F. Supp. 429, 434 (D.N.J. 1988); Davis v. City of Camden, 657 F. Supp. 396, 401 (D.N.J. 1987). In addition, this Court has previously ruled, based on then-prevailing precedent, that blanket strip search policies violate detained arrestees’ Fourth Amendment rights. Flythe v. Darby Borough, No. 055715, 2006 WL 2504023, at *9 (E.D. Pa. Aug. 25, 2006) (citing Weber v. Dell, 804 F.2d 796, 803 (2d Cir. 1986), Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1986); Mary Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)).
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authority provided by numerous circuit courts, this Court draws the following conclusions.
a. The Invasion of Rights that the Search Entails
In Bell, the contact visit strip searches involved visual body cavity inspection. Subsequent cases have noted that strip searches, regardless of the particular procedures used,12 constitute
extremely invasive government action. Giles v. Ackerman, 746 F.2d at 617 (stating that a skin
search invaded plaintiff’s privacy “in a frightening and humiliating manner”); Logan v. Shealy,
660 F.2d at 1013 (describing a visual strip search as “the ultimate invasion of personal rights”);
Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989) (“The feelings of
humiliation and degradation associated with forcibly exposing one’s nude body to strangers for
visual inspection is beyond dispute.”). Because a more invasive strip search can be “demeaning,
dehumanizing, undignified, humiliating, [and] repulsive,” it constitutes “one of the most grievous
offenses against personal dignity and common decency.” Bell, 441 U.S. at 576-77 (Marshall, J.,
dissenting); accord Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).
Strip searches are more intrusive than searches of arrestees incident to arrest. See Mary
Beth G., 723 F.2d at 1268-71; Swain v. Spinney, 117 F.3d 1, 5-6 (1st Cir. 1997); Giles v.
Ackerman, 746 F.2d at 616. Strip searches are also considerably more intrusive than “the limited
12 The term “strip search” generically refers to a variety of searches and search techniques which vary in scope. See N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2004) (“‘Strip search’ is often used as an umbrella term that applies to all inspections of naked individuals.”); see, e.g., Giles v. Ackerman, 746 F.2d at 615-16 (describing a “skin search” which involved the removal of clothes and visual inspection of the naked body); Mary Beth G., 723 F.2d at 1267 (describing a “visual body cavity inspection” similar to the one at issue in Bell); Spear v. Sowders, 71 F.3d 626, 629 (6th Cir. 1995) (describing a “manual body cavity search,” during which officers probed the subject’s vagina and anus). Some practices, such as observing a subject during a clothing exchange procedure, instructing a subject to squat and cough while naked, or instructing a subject to insert his or her own fingers into a body cavity, do not fit neatly into one category or another. In general, however, the precise category of the search is less important than the invasiveness of the techniques employed during the search. Stanley v. Henson, 337 F.3d 961, 964 & n.2 (7th Cir. 2003).
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search of the outer clothing for weapons” authorized by Terry v. Ohio on an officer’s reasonable suspicion, which the Supreme Court described as “a severe, though brief, intrusion upon cherished personal security, [which] must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. 1, 24-25 (1968).
Strip searches differ qualitatively from other intake procedures which entail some incidental nudity but do not involve visual inspection of the naked body. Cf Stanley v. Henson, 337 F.3d 961, 967 (7th Cir. 2003) (upholding a clothing exchange procedure and distinguishing the “relatively narrow intrusion” of the procedure from the more intrusive strip searches described in the cases following Bell); Wood v. Hancock County Sheriff’s Dep’t, 354 F.3d 57, 62-64 (1st Cir. 2003) (defining a strip search as involving “visual inspection” of the naked body for the purpose of determining whether the jail’s clothing exchange and shower procedure amounted to a strip search). The exposure of the naked body to scrutiny by government officers is what makes strip searches more invasive than other admission procedures at a custodial facility.
The intrusiveness of the search must also be considered in light of the circumstances and context of the search. For offenses that are relatively minor, a strip search represents a grossly disproportionate consequence of arrest. Few people would think that their right of privacy in their own body, a “cherished value of our society,” Schmerber, 384 U.S. at 772, could be jeopardized by the failure to pay parking tickets, shoplifting, or driving without a license. Police officers arrest and temporarily detain individuals for offenses that carry minimal statutory penalties. See, e.g., Stewart, 767 F.2d at 154-55; Hill v. Bogans, 735 F.2d 391, 392-93 (10th Cir. 1984). Under a blanket policy, custodial facilities search all of these arrestees without regard to the severity of
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their offenses or likelihood of conviction.13 For minor offenders unfamiliar with the incidents of detention, strip searches add shock and unexpected humiliation to the already frightening experience of arrest.
b. The Need for the Particular Search In Bell, the Court identified two reasons why the contact visit strip search policy at issue in that case which involved visual body cavity inspection advanced the defendants’ institutional security interests. First, the policy enabled prison officers to discover contraband smuggled during contact visits, and second, the blanket policy deterred the smuggling of contraband during contact visits. Bell, 441 U.S. at 559. Courts that strike down blanket strip search policies for detained arrestees conclude that the two justifications which supported the constitutionality of the MCC policy for contact visit strip searches are lacking in the arrestee context. See Giles v. Ackerman, 746 F.2d at 617 (“In contrast [to Bell], the County has not demonstrated that its security interests warrant the serious invasion of privacy inflicted by its policy.”). Because arrest and detention are generally “unplanned events,” most arrestees have little opportunity to plan or carry out smuggling activities. See Giles v. Ackerman, 746 F.2d at 617; accord Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001). Moreover, any possession of contraband
13 This concept of disproportionality is not foreign to Fourth Amendment analysis. “The logic of distinguishing between minor and serious offenses in evaluating the reasonableness of . . . searches is almost too clear for argument.” New Jersey v. T.L.O., 469 U.S. 325, 380 (1985) (Stevens, J., concurring & dissenting) (discussing the scope of school searches); cf Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (“[A] finding of exigent circumstances to justify a warantless home entry should be severely restricted when only a minor offense has been committed . . . .”); McDonald v. United States, 335 U.S. 451, 459 (1948) (Jackson, J., concurring) (“It is to me a shocking proposition that private homes . . . may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.”); but cf. United States v. Robinson, 414 U.S. 218, 234-35 (1973) (finding an arrestee’s charges to be irrelevant to the blanket constitutionality of searches incident to arrest).
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would, in all likelihood, be discovered during a valid search incident to arrest or a less intrusive custodial search. See Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001) (“[L]ess invasive (and less constitutionally problematic) searches would have been equally effective in revealing contraband [possessed by detained arrestees].”); Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir. 1993) (“[J]ails can meet the minimal security concerns they may have with minor offenders by means of a less intrusive pat-down search.” (internal quotation marks and citations omitted)).
For offenses that are not commonly associated with the possession of weapons, drugs, or other contraband, the risk that an arrestee has secreted contraband in such a way that it could only be detected by a strip search shrinks further. Shain v. Ellison, 273 F.3d at 64 (“Bell authorized strip searches after contact visits, where contraband is often passed. It is far less obvious that misdemeanor arrestees frequently or even occasionally hide contraband in their bodily orifices.” (internal citation omitted)); Jones v. Edwards, 770 F.2d at 741. For this reason, conducting routine strip searches on persons who are not arrested for offenses associated with contraband, have never been arrested on any such charges, and who are not carrying any contraband at the time of the arrest bears “no . . . discernible relationship to security needs” of custodial facilities. Logan v. Shealy, 660 F.2d at 1013; accord Mary Beth G., 723 F.2d at 1273 (“While the need to assure jail security is a legitimate and substantial concern, we believe that, [in the absence of evidence that the plaintiffs posed a security risk], the strip searches bore an insubstantial relationship to security needs . . . .”). Strip searching arrestees who are unlikely to possess, much less conceal, contraband does not serve the institutional security needs of a custodial facility.
The second Bell justification—deterrence—figured prominently in the Supreme Court’s determination that the MCC’s blanket policy was reasonable. The district court struck down the
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MCC policy with regard to visual body cavity searches because it concluded that “giving full weight to [the deterrence] factor, . . . it cannot justify the more extreme and offensive aspects of the strip search.” United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977). The circuit court upheld the district court’s decision because “only one instance in the MCC’s several years of existence when contraband was found during a body cavity inspection.” Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978). The validity of deterrence as a justification for the strip search policy was, therefore, squarely before the Supreme Court. In upholding the MCC policy in its entirety, the Supreme Court relied on the government’s claim that the policy served as a deterrent and used that argument to explain the fact that the MCC strip searches after contact visits had uncovered only one incident of attempted smuggling. Bell, 441 U.S. at 559.
In the arrestee context, a blanket strip search policy serves little deterrent function. “[T]he deterrent rationale for the Bell [contact visit] search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.” Roberts, 239 F.3d at 111. The inmates in Bell planned their contact visits and were aware that under the MCC’s policy they would be strip searched after their contact visits. Arrest and detention, on the other hand, generally offer little opportunity for the kind of advance planning that might be influenced by deterrent measures. Giles v. Ackerman, 746 F.2d at 617. Further, for those arrestees who have no advance notice of a custodial facility’s strip search policy, the deterrent effect shrinks to zero. Mary Beth G., 723 F.2d at 1272 n.8 (“No deterrence effect could have resulted from the strip search policy . . . because none of the [arrestees] were aware that such a policy even existed.”). These considerations significantly weaken the effectiveness of a blanket arrestee strip search policy and, therefore, a custodial facility’s justification for enforcing it.
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c. Reasonableness and Reasonable Suspicion Standard Balancing the justifications advanced by custodial facilities against the intrusion on privacy interests inherent in strip searches, the courts cited above concluded that suspicionless arrestee strip searches, either pursuant to a blanket policy or conducted individually, violate the Fourth Amendment. In reaching this conclusion, these courts did not underestimate the significant institutional security concerns of custodial facilities or overstep the deference owed to prison officials. Even with those weighty considerations, the courts found that blanket policies which allow indiscriminate searches of arrestees simply do not satisfy the basic Fourth Amendment requirement of reasonableness because they subject too many people to highly invasive, humiliating searches that do not actually promote the institutional security interests of the custodial facility. The individualized standard that courts have imposed after striking down blanket policies or suspicionless searches—reasonable suspicion which can be based on “the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest”—is a relatively low burden in the Fourth Amendment context. Weber v. Dell, 804 F.2d at 802; see Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 714-15 (9th Cir. 1990), overruled on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991). Because custodial facilities do face serious security risks and officials’ efforts to manage such facilities deserve deference, courts have not required that custodial strip searches of detained arrestees be based on probable cause. The standard developed in this context thus represents a “‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’” Bell, 441 U.S. at 546 (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). Because a search may be justified by an arrestee’s current or prior charges, the reasonable
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suspicion standard developed in this context allows officials to take a more categorical approach to custodial strip searches. Roberts, 239 F.3d at 112 (“[C]ourts have given prisons latitude to premise searches on the type of crime for which an inmate is convicted or arrested.”); see Dobrowolskyj v. Jefferson County, 823 F.2d 955, 958-58 (6th Cir. 1987) (upholding custodial strip search for person arrested on menacing charge); but see Watt v. Richardson Police Dep’t, 849 F.2d 195, 198-99 (5th Cir. 1988) (concluding that even a charge-specific strip search policy cannot be applied mechanically). And, in reviewing custodial strip searches of detained arrestees on a case-by-case basis, courts continue to give officials the deference that Bell requires. Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989) (“[O]n balance, [grand theft auto] is sufficiently associated with violence to justify a visual strip search.”); Wachtler v. County of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994) (granting qualified immunity because “we cannot say on the somewhat unique facts before us[—arrest based on plaintiff’s failure to produce ID when stopped for speeding—]that it is clearly established that no ‘reasonable suspicion’ justified a strip-search in this case”).
Defendant does not argue that plaintiffs have failed to state a claim under this precedent. Instead, defendant argues that the Court should follow Powell and disregard the foregoing authority in its entirety. On this front, defendant’s arguments fail.
3. Powell v. Barrett and Defendant’s Powell-Based Arguments Powell began as a putative class action by eleven former inmates of the Fulton County Jail in Georgia (“FCJ”), all of whom were strip searched pursuant to the FCJ’s blanket policy of strip searching inmates entering or reentering the general prison population. Powell v. Barrett,
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541 F.3d 1298, 1300 (11th Cir. 2008) (en banc).14 The proposed class was divided into three groups, only one of which was before the en banc court. This group consisted of recent arrestees who were strip searched upon admission to the FCJ and before placement in the FCJ’s general population.15 Id. At the motion to dismiss stage, the district court ruled that defendants were entitled to qualified immunity. Powell v. Barrett, 376 F. Supp. 2d 1340, 1350 (N.D. Ga. 2005). Assuming that the plaintiffs had sufficiently alleged a Fourth Amendment cause of action, the district court nevertheless found that the unconstitutionality of the blanket strip search policy was not clearly established. Id. at 1346 n.3, 1349-50. Noting that “defendants’ motions [to dismiss] involve[d] several controlling questions of law with respect to which there is substantial ground for difference of opinion,” the district court certified the issues raised in defendants’ motions for immediate interlocutory appeal. Order, Powell v. Barrett, No. 04-cv-1100 (N.D. Ga. Aug. 15, 2005).
On interlocutory appeal, the Eleventh Circuit panel reversed the district court’s qualified immunity ruling. Following the binding precedent of earlier Eleventh Circuit opinions, the panel concluded both that “the Jail’s alleged policy of conducting blanket strip searches on all arrestees at booking, on the single ground that they are to be placed in the Jail’s general population, must be deemed unconstitutional” and that the unconstitutionality of the policy was clearly
14 Citations to “Powell” in this Part of the Memorandum, as in other Parts, refer to the Eleventh Circuit’s en banc opinion, and not to the lower court opinion or the Eleventh Circuit’s panel opinion.
15 The other two groups included detainees who were strip searched before being released from the FCJ, either after initial bail hearings or after court appearances. After ruling on the constitutionality of the point-of-entry strip searches conducted on arrestees being placed in the general population, the Eleventh Circuit remanded the case to the panel to apply the principles discussed in the en banc opinion to the other two groups. Powell, 541 F.3d at 1314. The panel remanded the case to the district court for further factual development. Powell v. Barrett, No. 0516734, 2009 WL 117586, at *2 (11th Cir. Jan. 20, 2009).
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established. Powell v. Barrett, 496 F.3d 1288, 1310-13, 1315-17 (11th Cir. 2007). Before so ruling, however, the panel pointed out “that a majority of our Court has expressed uncertainty about our precedent holding that strip searches of arrestees to be placed in the jail’s general population, absent reasonable suspicion, violate the Fourth Amendment.” Id. at 1312 (citing Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc)). Sua sponte, the Eleventh Circuit granted rehearing en banc to resolve this uncertainty. Order, Powell v. Barrett, No. 0516734 (11th Cir. Feb. 1, 2008).
Sitting en banc, the Eleventh Circuit overruled its own precedent with regard to the constitutionality of blanket arrestee strip search policies and affirmed the dismissal of plaintiffs’ claims. Powell, 541 F.3d at 1306-07, 1314. The Powell opinion now stands alone for the holding that arrestees’ Fourth Amendment rights “are not violated by a policy or practice of strip searching each one of them as part of the booking process, provided that the searches are no more intrusive on privacy interests than those upheld in the Bell case.” Id. at 1314. In reaching this holding, the Eleventh Circuit departed from the twenty-five years of contrary circuit precedent discussed in Part IV.C.2 of this Memorandum.
The Eleventh Circuit forcefully criticizes that precedent as “thinly disguised defiance” of the Supreme Court’s decision in Bell. Powell, 541 F.3d 1312. Focusing on two main issues—(1) the validity of the reasonable suspicion standard in the custodial strip search context and (2) the appropriateness of differentiating between minor offenders and serious offenders in the arrestee context—Powell refutes the line that other circuits have drawn between contact visit strip searches and arrestee strip searches in custodial facilities. Contrary to those courts’ rulings, Powell holds that “the security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify
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searching an arrestee when he is being booked into the general population for the first time.” Id. at 1302. For the reasons that follow, this Court disagrees with both the reasoning and holding of the Eleventh Circuit in Powell.
a. The Source of the Reasonable Suspicion Standard Identified by Powell
The Eleventh Circuit summarized circuit precedent on the constitutionality of arrestee strip searches by stating “[w]e are aware that some courts have interpreted the Bell decision as requiring, or at least permitting lower courts to require, reasonable suspicion as a condition for detention facility searches, especially those that involve visual body cavity inspections. . . . Those decisions misread Bell as requiring reasonable suspicion.” Powell, 541 F.3d at 1306-07 (internal citations omitted). This Court disagrees with the Eleventh Circuit’s premise and conclusion.
Powell attributes the reasonable suspicion standard to the following sentence in Bell: “We deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause.” Bell, 441 U.S. at 560 (emphasis in original); Powell, 541 F.3d at 1309. The Eleventh Circuit assumes that this sentence is the source of the circuit court holdings requiring reasonable suspicion and then states that “neither the question nor the answer compels the conclusion that ‘less than probable cause’ means ‘reasonable suspicion.’” Powell, 541 F.3d at 1309. This Court agrees with Powell’s interpretation of that sentence in Bell but disagrees with Powell’s reading of the cases requiring reasonable suspicion. Those courts, even the courts cited in Powell, did not rely on the untenable premise that, by holding that the contact visit strip searches could be conducted on less than probable cause, Bell affirmatively required reasonable suspicion. See, e.g., Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997); Weber v. Dell, 804 F.2d 796, 800 (2d Cir. 1986); Mary Beth G. v. City of
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Chicago, 723 F.2d 1263, 1273 (7th Cir. 1984).16 Circuits other than the Eleventh Circuit relied on the Fourth Amendment’s
reasonableness requirement and the balancing test articulated in Bell to strike down suspicionless custodial strip searches of detained arrestees. Applying that test, circuit courts have ruled that policies requiring strip searches for all arrestees, regardless of the charges or circumstances, are unreasonable and therefore unconstitutional. See Part IV.C.2 supra. In the wake of such rulings, courts had to determine under what circumstances officials would be constitutionally permitted to search a detained arrestee in accordance with the Fourth Amendment. The reasonable suspicion standard resulted from that inquiry and not because it was required by Bell. See, e.g., Mary Beth G., 723 F.2d at 1273; see also Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 714-15 (9th Cir. 1990), overruled on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (describing the provenance of the reasonable suspicion standard in the arrestee strip search context).
In contesting the premise that Bell requires custodial strip searches to be predicated on reasonable suspicion, Powell focuses on three features of the Bell opinion. First, Bell, in approving a blanket policy, upheld suspicionless strip searches and rejected a case-by-case approach to the reasonableness inquiry.17 Second, the Eleventh Circuit points to Justice Powell’s
16 The only cases which state that Bell, itself, “requires” an objective standard, such as probable cause or reasonable suspicion, are the Eleventh Circuit decisions which preceded Powell. Justice v. City of Peachtree, 961 F.2d 188, 192 (11th Cir. 1992) (“The Bell balancing test for reasonableness requires at ‘a minimum, that the facts upon which the intrusion is based be capable of measurement against an objective standard, whether this be probable cause or a less stringent test.’”(citations and internal quotation marks omitted)); see also Wilson v. Jones, 251 F.3d 1340, 1342-43 (11th Cir. 2001) (quoting Justice); Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000) (reiterating, without quoting, the same statement in Justice).
17 At least one court questions this conclusion. “[J]ust because the searches in Bell were conducted pursuant to a blanket policy does not mean that reasonable suspicion was lacking. . . .
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dissenting opinion in Bell which reads, in its entirety: I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue.
Bell, 441 U.S. at 563 (Powell, J., dissenting); Powell, 541 F.3d at 1308. Although the Eleventh Circuit acknowledges the risks inherent in using dissenting opinions to interpret majority holdings, Powell, 541 F.3d at 1308, the court nevertheless relies on Justice Powell’s statement as convincing evidence that the majority opinion approved suspicionless strip searches. Id. Finally, the Eleventh Circuit unveils what it considers to be “one momentous fact of Franciscan simplicity”: the Bureau of Prisons continues to enforce a blanket policy of strip searching all inmates after contact visits, a policy that has not been challenged since Bell. Id.
At most, these three considerations prove that the Supreme Court, on the facts before it, approved a blanket policy requiring strip searches for all inmates following contact visits as reasonable and did not require searches conducted pursuant to that policy to be based on individualized reasonable suspicion. The Court did not have occasion to rule on the reasonableness of custodial strip searches in other circumstances or under what circumstances reasonable suspicion might be required. See Powell, 541 F.3d at 1316 (Barkett, J., dissenting) (pointing out that “Bell did not validate strip searches in detention settings per se”). The Bell Court did hold that, assuming the Fourth Amendment applies, the Fourth Amendment requires all strip searches or strip search policies in custodial settings to be reasonable. Bell, 441 U.S. at
[Contact] visits, by their very nature, may . . . provide the requisite reasonable suspicion for jail officers to justify the blanket search policy.” Florence v. Bd. of Chosen Freeholders of Burlington, No. 05-3619, 2009 WL 252174, at *13 (D.N.J. Feb. 4, 2009); accord Powell, 541 F.3d at 1316-17 (Barkett, J., dissenting).
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558-59. This is one of many situations where linguistic precision matters a great deal. Other
courts did not hold that Bell “requires” reasonable suspicion; they held that Bell requires reasonableness and that reasonableness, in certain circumstances, requires that searches be based on individualized suspicion of wrongdoing measured against some objective standard such as reasonable suspicion. For this reason, this Court concludes that the Powell opinion does not, in fact, demonstrate that other circuit opinions were wrongly decided or that they misapplied Bell.
b. Powell’s Rejection of the Misdemeanor-Felony Distinction and the Distinction between Contact Visit Strip Searches and Arrestee Strip Searches
Although the Eleventh Circuit describes the misdemeanor-felony distinction as simply “[o]ne other point . . . worth discussing,” it is one of the reasons for the Eleventh Circuit’s rejection of circuit precedent and subsequent conclusion that blanket policies are equally justified for contact visit strip searches and arrestee strip searches. Powell, 541 F.3d 1309-14. For this reason, the Court combines its discussion of these issues.
Powell states that “[t]he difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches” because it “finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities.” Powell, 541 F.3d at 1310. The Eleventh Circuit is correct that the Bell Court did not discuss the distinction between misdemeanors and felonies or, for that matter, the distinction between minor offenders and serious offenders, in relation to the reasonableness of the MCC’s contact visit strip search policy.18 The fact that these distinctions were not
18 To demonstrate that the Supreme Court had occasion to consider this issue, the Eleventh Circuit points out that the MCC housed “detainees facing only lesser charges, people incarcerated for contempt of court, and witnesses in protective custody.” Powell, 541 F.3d at
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discussed in the contact visit context does not mean, however, that they are never relevant to Fourth Amendment reasonableness balancing.
The distinction between felonies and misdemeanors is relevant in the arrest context because it serves as a rough proxy for whether or not an arrestee will be detained pending trial. For persons arrested on misdemeanors or other minor offenses, detention is usually temporary. The strip searches at issue in this case and in the cases discussed in this Memorandum generally occurred during the intermediary period after arrest and before arraignment, before a bench warrant hearing, or before the posting of bail. For serious offenders who will be detained pending trial and subject to the regular and constitutional incidents of detention, such as contact visit strip searches, an intake strip search represents one of several strip searches to which such pretrial detainees will be subjected. The same cannot be said for minor offenders who will not be detained pending trial. Further, the distinction between minor offenders and serious offenders, which tracks the misdemeanor-felony distinction, impacts the balance between the need for the search and the invasion of rights that the search entails, as discussed in Part IV.C.2.
Powell states that plaintiffs’ “best hope for distinguishing Bell lies in the fact that they were strip searched as part of the booking process instead of after contact visits.” Powell, 541 F.3d at 1313. The Eleventh Circuit denies the validity of this distinction because “an inmate’s initial entry into a detention facility might be viewed as coming after one big and prolonged contact visit with the outside world.” Id. Defendant agrees and further argues that “[i]ncoming
1310. However, of these three categories of inmates, only the pretrial detainees were before the Supreme Court. Bell, 441 U.S. at 523-24, 528-30. Further, the Supreme Court did not mention what charges the MCC’s pretrial detainees faced. It did, however, note that “[u]nder the Bail Reform Act, a person in the federal system is committed to a detention facility only because no other less drastic means can reasonably ensure his presence at trial.” Id. at 524 (internal citation omitted).
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inmates have not been under any supervision whatsoever, and obviously present[] a greater security hazard than someone who has just come from an observed visit within the institution.” (Def. Mot. at 12.) This Court is not persuaded by these attempts to place arrestee strip searches under the umbrella of the Bell holding with regard to contact visits. Although recent arrestees might have more opportunity to possess contraband than inmates, opportunity alone does not change the likelihood that a person arrested on non-violent, non-drug offenses actually possesses contraband. It also does not increase the chance that the contraband will be secreted in such a way that it will not be discovered by less invasive searches.
Similarly, in ruling on the pending motion, the Court is not influenced by the fact that some persons do anticipate their own arrests and might have the opportunity to conceal contraband. See Powell, 541 F.3d at 1313 (“Some people surrender when they are notified that a warrant for them is outstanding. . . . [Others] deliberately get themselves arrested.”) Such circumstances do not justify an otherwise unreasonable blanket policy. See Newkirk v. Sheers, 834 F. Supp. 772, 789-90 (E.D. Pa. 1993) (rejecting defendants’ argument that the strip searches of non-violent protestors pursuant to a blanket policy was reasonable because persons “‘who commit actions intending or expecting to go to prison’” threaten institutional security). In cases where arrestees self surrender or deliberately subject themselves to arrest, officials may well have reasonable suspicion to conduct an intake strip search. Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001).
This Court disagrees with Powell’s conclusion that the holding in Bell invalidates the analysis of other courts with respect to the reasonableness of blanket strip search policies in the arrestee context. Reasonableness is a flexible standard which allows for consideration of different factors in different contexts. In the arrestee context, a person’s charges and the
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circumstances of his arrest are relevant for the determination of whether a blanket intake strip search policy is reasonable. The fact that Bell did not discuss those factors in the contact visit context, where they were less relevant, is of no moment.
c. Fourth Amendment Analysis Absent a Factual Record The Eleventh Circuit affirmed the dismissal of the Powell plaintiffs’ complaint because “the security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time.” Powell, 541 F.3d at 1302. Defendant strongly supports this conclusion, arguing that Bell bars plaintiffs’ claims because GEO’s need for the search policy is “no different” from the need for the policy in Bell. (Def. Reply at 5-6, 8.) This Court disagrees with this position two reasons. First, it oversimplifies the “need for the particular search” prong of Bell. Second, it ignores the fact-intensive nature of Fourth Amendment inquiry. Maintaining institutional security within custodial facilities obviously qualifies as a legitimate governmental interest. Bell recognized that “[a] detention facility is a unique place fraught with serious security dangers.” Bell, 441 U.S. at 559. Hudson described “the paramount interest in institutional security” as “‘central to all other corrections goals.’” Hudson v. Palmer, 468 U.S. 517, 527 (1984) (quoting Pell v. Procunier, 417 U.S. 817, 823 (1974)). The Supreme Court’s decision to uphold the strip search policy at issue in Bell was strongly influenced by such considerations. Bell, 441 U.S. at 560; Powell, 541 F.3d at 1306 (describing the weight the Supreme Court placed on the security interests of the institution). Nevertheless, the invocation of “institutional security concerns” does not give defendant carte blanche to implement constitutionally suspect policies. See Block v. Rutherford, 468 U.S. 576, 593 (1984) (Blackmun,
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J., concurring) (“The fact that particular measures advance prison security . . . does not make them ipso facto constitutional.”) Sufficient justification only exists when the search policy is reasonably calculated to achieve the government’s stated goals.
As summarized above in Part IV.C.2.b, courts have consistently concluded that the interests which justified the implementation of a blanket policy in the contact visit context in Bell—discovery and deterrence—did not justify the implementation of a blanket policy in the arrestee context. Powell does not address this reasoning. Instead, Powell relies on generalizations and the factual findings in other cases to demonstrate that arrestee strip searches might be warranted under certain circumstances. Powell, 541 F.3d at 1310-11, 1313-14. The hypothetical existence of reasonable arrestee strip searches does not, however, automatically justify an overinclusive blanket policy. Further, the fact that a blanket policy might be reasonable in one facility does not mean that a blanket policy will be reasonable in all facilities. Where, as with strip searches, the government action intrudes on an individual’s constitutionally protected right to bodily privacy, the search policy must be based on the actual, not hypothetical, needs of the institution. Defendant’s claim that institutional security concerns justify all search policies in custodial facilities will not suffice.
The Eleventh Circuit’s decision to uphold a blanket strip search policy on appeal from a motion to dismiss does not take into consideration the fact-intensive nature of Fourth Amendment analysis generally and under Bell. Powell, 541 F.3d at 1302. In Bell, the Supreme Court observed that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell, 441 U.S. at 559 (emphasis added). “Absent precedent that is clearly controlling, it is incumbent on
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[courts] to examine independently [the facts of the challenged searches] in light of the requirement of the [F]ourth [A]mendment that they not be ‘unreasonable.’” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 (7th Cir. 1983). The courts of appeals that have assessed the constitutionality of custodial strip searches have all evaluated the reasonableness of those searches in light of the facts of each case and by reference to the Fourth Amendment standard laid out in Bell. This Court is aware of no circuit court other than the Eleventh Circuit in Powell which has upheld the constitutionality of an arrestee strip search without a factual record. Accord Powell, 541 F.3d at 1316 (Barkett, J., dissenting).
Because this Court concludes that the Supreme Court ruling in Bell with regard to contact visit strip searches does not control the constitutionality of custodial strip search policies involving detained arrestees, such as the one alleged by plaintiffs, the Court must independently rule on the reasonableness of such a policy. Without a factual record, however, this Court is unable to balance “the need for the particular search [policy] against the invasion of personal rights that the search [policy] entails” as Bell requires. Bell, 441 U.S. at 559. At this stage in the litigation, the Court can only evaluate whether the allegations in plaintiffs’ Amended Complaint state claims upon which relief can be granted.
D. Plaintiffs’ Fourth Amendment Claims Having found Powell’s criticisms of circuit precedent unpersuasive, this Court will continue to follow the authority of other circuits, as described in Part IV.C.2 of this Memorandum. That authority holds that suspicionless strip searches of detained arrestees upon admission to a custodial facility violate the Fourth Amendment and requires that custodial strip searches of detained arrestees be based on reasonable suspicion that the arrestee has concealed weapons or contraband. In this case, plaintiffs allege that defendant has a policy or practice of
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strip searching all arrestees without any individualized suspicion that those arrestees have secreted contraband. The named plaintiffs further allege that they were strip searched upon admission to defendant’s Hill Facility and that their strip searches were not based on reasonable suspicion.
The strip searches described in plaintiffs’ Amended Complaint involved the visual inspection of the named plaintiffs’ naked bodies. Plaintiff Allison was required to squat and cough while naked. Plaintiff Hocevar was required to remove his clothes in the presence of other detainees. While not as invasive as the strip searches in Bell, which involved visual body cavity inspection, plaintiffs’ searches were similar to, or more invasive than, the strip searches that have been scrutinized and struck down by other courts. Masters v. Crouch, 872 F.2d 1248, 1253, 1255 (6th Cir. 1989) (skin search in the presence of other people); Hill v. Bogans, 735 F.2d 391, 393, 394-95 (10th Cir. 1984) (same); Giles v. Ackerman, 746 F.2d 614, 615, 617-18 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (skin search).
Also, at least two cases suggest that the named plaintiffs’ charges, DUI and domestic dispute charges, do not give rise to reasonable suspicion for the purposes of conducting a custodial strip search on an arrestee. Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (“[DUI], though not a minor traffic offense, [is] nevertheless [an offense] not commonly associated by its very nature with the possession of weapons or contraband.”); Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001) (holding that the custodial strip search of plaintiff, who had been arrested for first degree harassment arising from a domestic dispute, was unconstitutional).
More importantly, however, all courts confronted with the issue have ruled that blanket arrestee strip search policies, such as the one alleged by plaintiffs, are unreasonable and therefore
47

Case 2:08-cv-00467-JD Document 41 Filed 03/25/09 Page 48 of 49 unconstitutional. See, e.g., Weber v. Dell, 804 F.2d 796, 803 (2d Cir. 1986); Stewart v. Lubbock County, 767 F.2d 153, 156-157 (5th Cir. 1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Under these cases and the other authority cited in this Memorandum, plaintiffs have pled viable Fourth Amendment claims. VI. CONCLUSION
For all of the foregoing reasons, the Court denies the Motion of Defendant The GEO Group, Inc. for Judgment on the Pleadings. Plaintiffs’ claims for relief will be judged against the Fourth Amendment standards summarized in this Memorandum and not the Eleventh Circuit decision in Powell. This ruling is without prejudice to defendant’s right to argue the constitutionality of its actions at the summary judgment stage and/or at trial.
An appropriate Order follows.
48

Case 2:08-cv-00467-JD Document 41 Filed 03/25/09 Page 49 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, :

individually and on behalf of a class of others :

similarly situated,

:

Plaintiffs,

:

:

v.

:

:

THE GEO GROUP, INC., in its official and :

individual capacities, and JOHN DOES

:

1 – 100, in their official and individual

:

capacities,

:

Defendants.

:

CIVIL ACTION NO. 08-467

O R D E R

AND NOW, this 24th day of March, 2009, upon consideration of the Motion of Defendant

The GEO Group, Inc. for Judgment on the Pleadings (Document No. 29, filed September 18, 2008),

Plaintiffs’ Memorandum of Law in Opposition to Defendant The GEO Group, Inc.’s Motion for

Judgment on the Pleadings (Document No. 35, filed October 21, 2008), the Reply Memorandum of

Law in Support of the Motion of Defendant The GEO Group, Inc. for Judgment on the Pleadings

(Document No. 37, filed November 5, 2008), and the related submissions of the parties, for the

reasons set forth in the attached Memorandum, IT IS ORDERED that the Motion of Defendant

The GEO Group, Inc. for Judgment on the Pleadings is DENIED.

IT IS FURTHER ORDERED that defendant’s request for oral argument is DENIED AS

MOOT.

IT IS FURTHER ORDERED that the partial stay on discovery imposed by Order dated

October 10, 2008 is VACATED. The Court will convene a scheduling conference in due course.

BY THE COURT:

/s/ Honorable Jan E. DuBois JAN E. DUBOIS, J.

 
 Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

[PROPOSED] ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND JUDGMENT THIS CASE coming on for hearing before the Honorable Jan E. Dubois pursuant to this Court’s Order of March 2, 2010 in order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the Parties is fair, reasonable and adequate, and to address Class Counsel’s application for an award of attorney’s fees and costs; and the Settlement Class Members being represented by Class Counsel and Defendant being represented by their attorney; AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendant, and having considered the submissions by Class Members, now makes the following:

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 2 of 48

1. action.

FINDINGS OF FACT This action was commenced on January 30, 2008, as a putative class

2. After over a year of intensive litigation, including extensive discovery and motion practice, and as a result of intensive, arm’s length negotiations between Class Counsel and Defendant, including a settlement conference before former Magistrate Judge James K. Melinson, the Parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendant (“Settlement Agreement”). The resulting Settlement Agreement was preliminarily approved by the Court on March 2, 2010. See Docket Entry No. 61.

3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed Settlement. The Notice Plan provided an opportunity for Class Members to file objections to the Settlement, and an opportunity to opt-out of the Settlement.

4. As of the July 1, 2010 deadline for the filing of objections, none were filed. Given the size of this Settlement, and the Notice Plan described above, this Court finds that the non-existence of any objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendant.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 3 of 48
5. The settling Parties have filed with the Court an affidavit from Ryanne Cozzi of Gilardi & Co. (the Settlement Administrator), declaring that the mailing and publication of the Court-approved notice, consistent with the Notice Plan, has been completed.
6. The Court finds that the published radio notice, the mailed notices, the posted notices at the Jails GEO operates and appropriate probation and parole offices, and the website notice constitute the best practicable notice of the Fairness Hearing, proposed Settlement, Class Counsel’s application for fees and expenses, such notice constituted valid, due and sufficient notice to all members of the Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of Pennsylvania and any other applicable law.
7. Any persons who wished to be excluded from this action were provided an opportunity to “opt-out” pursuant to the Notice. As of the deadline to do so, July 1, 2010, only one person, Timothy Montgomery, has elected to opt out of the Settlement. Mr. Montgomery shall not be bound by the Settlement Agreement or the final judgment herein.
8. Settlement Class Members are bound by the: Settlement, Settlement Agreement, Release contained within the Settlement Agreement, and the Final Order and Judgment. Settlement Class Members do not have a further opportunity to opt-out of this Action.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 4 of 48
9. Any Class Member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Class Counsel’s application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
a. The liability issues in this case have been vigorously contested. b. This Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the Parties to this litigation. This Settlement provides Class Members with a substantial monetary benefit and equitable relief.
c. This Settlement is clearly a product of hard-fought litigation between the Parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendant.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 5 of 48
11. Class Counsel submitted to the Court and served on the Defendant their application for reasonable attorneys’ fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel’s request and hereby _______________ the request.
12. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems.
13. The parties agree that an injunction is appropriate to ensure that Defendant complies with its revised written strip search policies at the Jails, as set forth in the Settlement Agreement.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW:
14. This Court has jurisdiction over the Parties and the subject matter of this proceeding.
15. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Class is certified for purposes of final settlement:
All persons who were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, but were strip searched upon their admission into one or more of the Jails pursuant to Defendants’ then-

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 6 of 48
existing strip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The Class Period is from January 30, 2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center, and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
16. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a class action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for class certification under Rule 23 are present. The Class Members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class Members predominate over individual issues and should be determined in one proceeding with respect to all Class members. The Class Representatives claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action.
17. The Class Representatives, Penny Allison and Zoran Hocevar, are entitled to and are hereby awarded a payment of $2,500.00 each, in recognition of the efforts they undertook in connection with this lawsuit. All Class Members who have made claims on the settlement are entitled to receive their pro rata share of the Settlement fund, not to exceed $400.00, after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 7 of 48
18. Any unused monies will revert to The GEO Group, Inc. 19. Class Counsel are qualified, experienced, and have aggressively litigated this case, thereby demonstrating their adequacy as counsel for the Class. Joseph G. Sauder and Benjamin F. Johns of Chimicles & Tikellis LLP are hereby appointed as counsel for the Class.
20. The Court grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
21. The Courts finds that the request for attorneys’ fees is reasonable.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
22. The Parties’ Joint Motion for Final Approval of the Proposed Settlement is GRANTED.
23. The Plaintiffs’ Motion for fees of $899,700.00 and expenses of $7,500.00 and the payment of incentive awards to each of the named plaintiffs in the amount of $2,500.00 each is _______________. Plaintiffs’ counsel are hereby awarded $ __________________ in fees and $ _____________________ in expenses.
23. The Settlement Class Representatives, Penny Allison and Zoran Hocevar, are entitled to and are hereby awarded a payment of $2,500.00 each in recognition of the efforts they undertook in connection with this lawsuit, All Class Members who have made claims on the Settlement are entitled to receive their pro

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 8 of 48
rata share of the Settlement Fund, not to exceed $400.00, after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.
24. This Action and all claims against the settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement.
25. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant, and any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.
26. Pursuant to 23 Pa. Cons. Stat. § 4305(b)(10) – and upon application by any domestic relations agent within thirty (30) days of this Order – any monies due to class members under the terms of this settlement shall be offset by any arrearages for child support obligations.
IT IS SO ORDERED.
Dated: __________________
_____________________________ The Honorable Jan E. Dubois United States District Judge

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 9 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION Plaintiffs Penny Allison and Zoran Hocevar, on behalf of themselves and all others similarly situated, and Defendant, The GEO Group, Inc., respectfully submit this joint motion for final approval of settlement and class certification. Pursuant to Rule 23 of the Federal Rules of Civil Procedure – and for the reasons set forth in the accompanying memorandum of law – Plaintiffs and Defendant respectfully request that this Court grant final approval to the settlement and certify the settlement class pursuant to Rule 23.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 10 of 48

Dated: September 27, 2010
FOR PLAINTIFFS AND THE CLASS:
/s/ David Rudovsky David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500
Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 215.592.1500
Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610.431.9505
Jennifer R. Clarke THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 S. Ninth Street, Suite 700 Philadelphia, PA 19107 215.627.7100

FOR DEFENDANT:
/s/ Carolyn P. Short Carolyn P. Short Shannon E. McClure REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 11 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL
APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION

David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500
Counsel for Plaintiffs [Additional Counsel on Signature Page]

Carolyn P. Short Shannon E. McClure Roberts REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100
Counsel for Defendant The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 12 of 48
Plaintiffs Penny Allison and Zoran Hocevar (together, “Plaintiffs”), on behalf of themselves and all others similarly situated, and Defendant The GEO Group, Inc. (“GEO”),1 respectfully submit this Memorandum of Law in Support of Plaintiffs’ and Defendants’ Motion for Final Approval of Settlement and Class Certification. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Parties respectfully request that this Court grant final approval to the Settlement, certify the action as a class action for purposes of settlement, and dismiss this action with prejudice as set forth in the Settlement.2
I. INTRODUCTION The Settlement, which represents the culmination of over eighteen months of highly contested litigation between the Parties, provides substantial benefits to certain individuals who were strip searched upon admission to the six GEO Jails at issue in this case: the George W. Hill Correctional Facility; the Guadalupe County Correctional Facility; the Frio County Detention Center; the Dickens County Detention Center; the Tri-County Detention Center; and the Newton County Correctional Center (the “Jails”).3 See Amended Settlement Agreement dated
[1] Plaintiffs and Defendants shall be collectively referred to herein as the “Parties.” [2] Separately, Plaintiffs’ Counsel will be filing a motion and supporting memorandum of law in support of their request for attorneys’ fees, expenses, and incentive payments for the two named plaintiffs. The parties agreed that GEO has the right to contest Plaintiffs’ counsel’s application for attorney fees and costs. Amended Settlement Agreement (ECF No. 60-3) § III(D) at 11. GEO will contest Plaintiffs’ counsel’s application for attorney fees. [3] Of the six Jails covered by the Settlement, GEO no longer operates the following four: the George W. Hill Correctional Facility; the Dickens County Detention

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 13 of 48
March 1, 2010 (the “Settlement”) (Docket Entry No. 60-3). Plaintiffs allege that
GEO violated the constitutional rights of Plaintiffs and Class members by illegally
strip searching them in the absence of reasonable suspicion. The Class is defined
as:
All persons who were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, but were strip searched upon their admission into one or more of the Jails pursuant to Defendants’ thenexisting strip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The Class Period is from January 30, 2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center, and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
Settlement at 2.4
The Settlement creates a fund valued up to $2,999,000.00 for the benefit of
Class members who were committed to one of the Jails during the class period. See
Settlement at §(I)(OO) (defining the “Settlement Amount” to be $2,999,000.00). See
also, id. at § (I)(NN) (providing that the entire Settlement Amount is to be
“earmarked for the sole purpose of this case, and will not be utilized for any other
payments or purposes.”).
Center; the Newton County Correctional Center; and the Tri-County Detention Center.
[4] The Class Period is longer at Guadalupe County Correction Facility because the applicable New Mexico Statute of limitations is longer (three years instead of two).
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 14 of 48
There is a tiered-structure to GEO’s obligation to pays into the Settlement Fund. The first $500,000 was paid into the fund to cover the costs of administration and claims. Settlement at § III(B)(1). The second contribution of $1,000,000 is to be paid after the close of the claims period. Id. at § III(B)(2).1 The Third Contribution is isto be paid into the settlement fund if the amount of claims received exceeds the amount of the Second Contribution; if the amount of the Second Contribution is exceeded by the amount of money necessary to pay the number of claims received, only the amount of money necessary to pay those claims need be paid (not the entire Third Contribution). Id. at § III(B)(3) (“In the event the amount of claims received: (a) do not exceed the amount of Second Contribution, GEO does not have to pay the Third Contribution into the Settlement Fund until it receives notice, if any, from the Settlement Administrator that such contribution is needed to satisfy any claims; or (b) exceeds the amount of the Second Contribution but does not rise to the level of the Third Contribution amount, GEO shall pay into the Settlement Fund an amount of the Third Contribution identified by the Settlement Administrator as necessary to satisfy the claims received.”). However, the entire amounts of the Second and Third Contributions were to be “set aside by GEO and earmarked for
[1] The parties have mutually agreed to keep the Claims Period open longer than the September 14, 2010 original claims date; all claims postmarked on or before September 30, 2010 will be considered timely.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 15 of 48
the sole purpose of funding the Settlement Fund, as needed.” Id. at (III)(B)(2)-(3). Any money that is unused reverts to GEO. Id. at § III(C)(1).5
As set forth in the Settlement, Class members who timely submitted a claim form will be entitled to a check in the amount of $400.00. Id. at § (III)(C)(1). Hundreds of class members elected to participate in this aspect of the settlement and sent in timely claim forms. Only one class member opt-ed out. None objected.
In addition to this benefit, the Settlement also provided substantial nonmonetary benefits to the Class. Specifically, the settlement agreement expressly provides that upon the filing of (and as a result of) this lawsuit, GEO “stopped strip searching detainees admitted to the Jails without reasonable suspicion ….” See Settlement at § (III)(A)(1). This commitment to stop conducting blanket strip searches remained in effect from the filing of this lawsuit in January of 2008 until around the time that the Third Circuit recently issued its decision in Florence, discussed infra.
In short, the Parties respectfully submit that this Settlement is fair, adequate, and reasonable for the Class (particularly given the current state of the law after Florence), and that the requirements for final approval are satisfied.
[5] The reverter and the $400 per claim cap are material settlement terms. Settlement Agreement § III(C)(1) (“Both the reverter and the $400 per claim cap are critical, essential and nonnegotiable terms of the settlement, and that nonacceptance of theses terms makes this agreement null and void, unless both parties agree to any changes in a signed writing.”).
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 16 of 48
II. BACKGROUND A. Plaintiffs’ Allegations and GEO’s Defenses. On January 30, 2008, Plaintiffs filed this putative class action lawsuit against GEO challenging its alleged practice of strip searching all arrestees regardless of crime, and regardless of whether the officers at intake had reasonable suspicion justifying a search. Plaintiffs allege that GEO maintained an unconstitutional strip search policy and practice throughout the class period by maintaining a strip-search policy whereby it conducted visual strip searches on all pretrial detainees upon their admission to the Jails in the absence of reasonable suspicion, including those charged with misdemeanor offenses or other minor crimes (referred to as a “blanket” strip search). GEO denies that it had a blanket strip search policy, and contends that pretrial detainees were only strip searched when reasonable suspicion existed. GEO further contends that it only conducted strip searches where appropriate, and that to the extent that any practice of strip searching all pretrial detainees existed, it was a result of the decision-making of the county or governmental units for which GEO operated Jails, and was contrary to GEO’s own written Corporate Policy. All pretrial detainees who entered the jails were going to inter-mingle with the general population. GEO’s sole purpose in strip searching any detainee was to prevent contraband from entering the general population (including drugs, weapons and money). GEO contends to have had a long history of recovering contraband in the jails via intake strip searches.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 17 of 48
In response to Plaintiffs’ lawsuit, to the extent any jail had a strip search practice of permitting strip searches with less than reasonable suspicion, GEO immediately took steps to effectively implement all of the injunctive relief Plaintiffs sought in the Complaint. Specifically, GEO, through its outside counsel Reed Smith, LLP, immediately launched an extensive investigation into what strip search practices were employed at each of the potentially affected Jails. As a result of this investigation, GEO took steps to recommit to its Corporate Policy to ensure that all Jails employed a policy that no person detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, was strip searched upon their admission to the Jails. GEO also implemented a strip search checklist (or “log”) for use at each Jail, which is now completed by intake personnel for each detainee. Detainees are only strip searched after that checklist or log is filled out, and only if the checklist or log permits a strip search under Plaintiffs’ understanding of the law – i.e., only if the checklist or log provides reasonable suspicion. GEO ensured that all intake personnel and all supervisory employees were affirmatively made aware of these requirements, and ensured that new employees would be trained on these procedures before working at intake.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 18 of 48
B. History of the Litigation. After the Amended Complaint in this action was filed on March 28, 2008, a new en banc decision was issued by the Eleventh Circuit Court of Appeals, Powell v. Barrett, 541 F.3d 1298, 1310 (11th Cir. 2008) (en banc), which GEO contends markedly changed the landscape of strip search litigation by calling into question decades of appellate interpretation of the seminal case of Bell v. Wolfish, 441 U.S. 520, 559 (1979). As a result of Powell, GEO filed a Motion for Judgment on the Pleadings, which required extensive briefing by the Parties. See Docket Entry Nos. 29, 35, 37, 39, and 40. On March 25, 2009, this Court issued a memorandum and order that denied GEO’s Motion for Judgment on the Pleadings. See Docket Entry No. 41. Shortly thereafter, GEO moved for certification for immediate appellate review pursuant to 28 U.S.C. §1292(b) (the “1292(b) Motion”), which was opposed by Plaintiffs and also required extensive and complicated briefing. See id. at Nos. 43, 44, 48, 49. While the § 1292(b) Motion was pending, the parties entered into settlement negotiations. In addition to this and other motion practice before the Court, the Parties have engaged in discovery over the course of this litigation.6 This included serving and responding to interrogatories and document requests. The parties also exchanged initial disclosures pursuant to FED. R. CIV. P. 26(a). GEO gathered and produced over 1,200 pages of documents to Plaintiffs, which were reviewed and analyzed by their counsel. Plaintiffs’ counsel also provided counsel for GEO with
[6] On October 7, 2008, the Court issued an order that, inter alia, granted in part and denied in part GEO’s motion for a stay of discovery. See Docket Entry No. 33.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 19 of 48
responsive documents. In addition, Plaintiffs’ counsel contend that they engaged in a substantial amount of informal discovery and fact gathering.
C. Settlement Negotiations. While GEO’s 1292(b) Motion was pending before this Court, the Parties entered into settlement negotiations in the late spring of 2009, with the help of retired Magistrate Judge James R. Melinson. The Parties met for a day-long mediation session conducted by Judge Melinson and continued negotiations afterwards, conferring by telephone on an almost daily basis. After continuing to negotiate for over a month, the Parties ultimately reached a preliminary agreement to settle on July 17, 2009. The Parties then spent several months memorializing the terms of the Settlement Agreement, preparing for the administration of the Settlement, and drafting the Class Notice that is attached to the Settlement Agreement. Although these lengthy and complex negotiations have been difficult and time consuming, the Parties’ good-faith efforts to resolve this Litigation ultimately resulted in an arm’s-length Settlement representing a thoughtful compromise. The Settlement takes into consideration the Plaintiffs’ concerns regarding their alleged constitutional violations, the Defendant’s prison security concerns, as well as the Parties’ respective positions regarding the viability of Plaintiffs’ claims. D. Recent Developments in the State of the Law on Blanket Strip
Searches. As noted above, during the pendency of this case, the Eleventh Circuit issued its en banc decision in Powell, 541 F.3d at 1298. At the time of the settlement
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 20 of 48
negotiations, the parties were also aware that the Ninth Circuit Court of Appeals had ordered en banc consideration of Bull v. City and County of San Francisco, a strip search case presenting similar issues. On February 9, 2010, the Ninth Circuit, 7-4, upheld San Francisco’s strip search policy, permitting strip searches of all pretrial detainees without individualized reasonable suspicion. Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).
On September 21, 2010, the Third Circuit Court of Appeals (which had not previously addressed the issue) issued a precedential opinion which held that the constitution does not forbid jails from conducting blanket strip searches, in the absence of reasonable suspicion, of all newly admitted pretrial detainees, including those arrested only for minor offenses. Florence v. Board of Chosen Freeholders of the County of Burlington, ___ F.3d ___, No. 09-3661, 2010 WL 3633178 at *13 (3d Cir. Sept. 21, 2010).7 The Third Circuit “rejected Plaintiffs’ argument that blanket strip searches are unreasonable because jails have little interest in strip-searching arrestees charges with non-indictable offenses.” Id. at *10. Indeed, the majority opinion reached this conclusion notwithstanding the plaintiffs’ argument that the jails did not put forth any evidence of a past smuggling problem or of a single new pretrial detainee who attempted to conceal contraband. See Florence, 2010 WL 3633178 at 30 (“[O]ur interpretation of the Supreme Court’s decision in Bell leads
[7] Even before the issuance of Florence, infra, both Judge McLoughlin and Judge Diamond recognized this uncertainty in the law on the state of strip searches in recent decisions granting final approval to class action settlements challenging blanket searches. Boone v. City of Philadelphia, 668 F. Supp. 2d 693, 704-05, 710 (E.D. Pa. 2009) (McLaughlin, J.); Kurian v. County of Lancaster, E.D. Pa. No. 07-cv03482, at 9-10, 12 (E.D. Pa Apr. 9, 2010) (unpublished) (ECF No. 68).
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us to conclude that the Jails are not required to produce such a record.”). Judge Pollak filed a dissenting opinion.
Thus, the legal landscape has changed dramatically since the settlement in this case was reached. Were litigation still proceeding, GEO would file, and this Court would likely grant, a motion for judgment on the pleadings to dismiss Plaintiffs’ claims based on Florence. In light of the sea change occurring in this area, this settlement could, then, represent for the near future one of the last strip search settlements negotiated within at least the Third, Ninth, and Eleventh Circuits.
E. Benefits Created by the Settlement. The Settlement Agreement provides for the creation of a Settlement Fund to compensate the Class for these alleged constitutional violations, and provides class members with certain non-monetary benefits.
1. The Monetary Benefit Created. The Settlement creates a Settlement Fund valued up to $2,999,000.00, tiered in three contributions. See Settlement at §§ (I)(OO) and (III)(B). Class members were eligible to receive a pro rata share of the Settlement Fund, up to a maximum recovery of $400.00 each.8 Id. at § (III)(C)(1). These payments to Class members, as well as administrative expenses (including the costs of settlement administration, website administration and the provision of notice to class
[8] Based on the number of timely claims submitted by Class members, each eligible Class member will receive $400.00, the maximum amount permissible under the Settlement.
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members), and the amount awarded by the Court for attorneys’ fees and costs and incentive awards to the Class Representatives, will be deducted from the Settlement Fund. In the event that there is any money remaining in the Settlement Fund after these deductions, the unused portion of the Settlement Fund will revert to GEO. Id. In the event that the number of claims received does not require payment of all of part of the Third Contribution, GEO does not need to make the Third Contribution.9 Id. at § III(B)(3). Both the reverter and the $400 per claim cap are critical and essential terms of the settlement, and are non-negotiable terms by GEO.10
2. The Non-Monetary Benefits. GEO agreed to all of the class injunctive relief sought by plaintiffs. Specifically – and as a result of this lawsuit – GEO agreed to ensure that all Jails subject to the Settlement Agreement did not conduct blanket strip searches of people detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion, be strip searched upon intake at the Jails. And while the prospective injunctive relief in the
[9] However, as noted above the Settlement provides that the entire amount of the Third Contribution ”shall be set aside by GEO and earmarked for the sole purpose of funding the Settlement Fund, as needed.” See Settlement at § (III)(B)(3).
[10] The creation of this Settlement Fund – and extent to which its proceeds will be distributed to Class members who timely submitted valid claim forms – is not affected by the recently issued Florence decision.
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settlement will not be enforceable so long as Florence remains the controlling law in the Third Circuit,11 the settlement created value for a thirty-two (32) month period by virtue of GEO’s commitment to cease blanket strip searches during this period.
F. Implementation and Administration of the Settlement. Promptly after the Court’s March 2, 2010 order granting preliminary approval to the Settlement, the parties began providing the Class Members with notice, as set forth in the Settlement Agreement. In response, 594 class members submitted timely claim forms to the settlement administrator.
1. Class Notice and Settlement Administration. Pursuant to the Settlement Agreement, the Court-approved notice was mailed to the last known or readily ascertainable mailing addresses for the 6,551 potential Class Members where address information could reasonably be obtained.12 The notice was also provided to the Class by posting notices at each of the Jails GEO currently operates, and the probation and parole offices in the relevant geographic areas. In addition, the Settlement Administrator, Gilardi & Co., LLC, caused an announcement of the Settlement on the radio stations KLEY in San
[11] Should the Third Circuit’s 2-1 Florence decision be reversed by an en banc panel and/or by the Supreme Court of the United States, the prospective injunction in the settlement will be reinstated by operation of law. Plaintiffs note that the en banc panels of both the Eleventh and Ninth Circuits have granted reviews of Powell and Bull, respectively. [12] Of the 6,551 addresses of potential Class Members on the Mailing List to whom notice was mailed, 2,211 notices were returned as undeliverable from the initial mailing. See Cozzi Declaration at ¶ 6. Through a third party locator service, Gilardi has performed address searches for these potential class members and was able to find updated addresses for 1,048 class members. Id. A total of 4,076 Notice Packets that were mailed were not returned as undeliverable. Id. at ¶ 7.
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Antonio Texas, KISS in San Antonio Texas, KTCX in Beaumont Texas, KIKR in Beaumont Texas, KAIQ in Lubbock Texas, KFMX in Lubbock Texas, KSSR in Santa Rosa New Mexico, WPHI in Philadelphia Pennsylvania, ESPN 950.in Philadelphia Pennsylvania, ESPN 97.50 in Philadelphia Pennsylvania, and KGMO in Ullin Illinois. See Declaration of Ryanne Cozzi at ¶ 8 (Ex. 1). The radio notice was broadcasted a total of 454 times throughout these 11 markets. Id.
The Settlement Administrator established a website where Settlement Class Members could (and still can) obtain information and Claim Forms,13 and maintain a toll-free number for use by Class Members. The Settlement Website made claim forms and notice available in both Spanish and English. The Settlement Website was visited by 3,110 unique visitors. See Cozzi Decl. at ¶ 4. The Settlement Administrator has also received 222 calls from potential Class Members inquiring about the settlement. Id. at ¶ 3. In addition to the mass mailing that occurred on May 17, 2010, the Settlement Administrator has sent 213 claim forms to class members that called to request one. Id. at ¶ 9.
News of the settlement also received media coverage in several regional markets, including the greater Philadelphia, San Antonio, Southern Illinois, and Albuquerque, New Mexico areas. See Exhibits A-F of the Declaration of Benjamin F. Johns in Support of Final Approval of Settlement (Ex. 2). While this third-party news coverage was not expressly contemplated in the Settlement or preliminary approval order, it is additional evidence that that Class members were provided
[13] See http://www.multistatestripsearchsettlement.com/casedocs.html. - 13 -

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with constitutionally adequate notice of the Settlement. See Krell v. Prudential Ins. Co. of Am. (In Re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions), 148 F.3d 283, 327 (3d Cir. 1998); Wilson v. Airborne, Inc., No. 07-770, 2008 U.S. Dist. LEXIS 110411, at *13 (C.D. Cal. Aug. 13, 2008) (“[T]hough it was not part of the plan for disseminating notice, initial media coverage of the settlement agreement provided additional opportunities for class members to learn about the settlement.”).
2. Response by Class Members. Not a single class member has objected to the Settlement, and only one class member elected to opt-out. The correspondence received by this class member who opted-out does not express any displeasure about the merits, substance, or fairness of the Settlement. See Exhibit B of the Cozzi Decl. Indeed, it does not set forth any reason why this particular person wishes to be excluded. As of September 21, 2010, a total of 594 class members have filed timely claim forms, and 4 late claim forms have been filed.1314 The participation rate of the class members who received the 4,076 notices that were returned as undeliverable) was 14.5%.15 According to the claims administrator’s experience from work on other class action settlements, these figures are comparable to that seen in similar cases. See Cozzi Decl. at ¶ 12.
[14] The parties have agreed that these and any late claims received which are post marked by September 30, 2010 will be included, and any claims post marked after that date will not be.
[15] There were 6,551 notices in total sent to potential Class members. Of those, 2475 were returned as undeliverable.
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III. ARGUMENT The Third Circuit requires that before a class action settlement agreement is approved, the district court must find that the settlement is fair, reasonable and adequate under FED. R. CIV. P. 23(e). See Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975). The district court must also find that the class meets the requirements for certification set forth in FED. R. CIV. P. 23(a) and 23(b). See Boone, 668 F. Supp. 2d at 705. A district court’s determination of whether the Rule 23(a) and 23(b) requirements are met is subject to its discretion. See Sullivan v. DB Investments, Inc., No. 08-2784, 2010 U.S. App. LEXIS 14375, at *18 (3d Cir. Jul. 13, 2010) (citing In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 595 (3d Cir. 2009)). Where – as here – the Court has already preliminarily approved the settlement, “an initial presumption of fairness” is established.1416 In re Linerboard Antitrust Litig., 321 F. Supp. 2d 619, 628 (E.D.Pa. 2004) (DuBois, J.) (quoting In re Gen. Motors Corp., 55 F.3d at 768, 785 (3d Cir. 1995)). As set forth below, the Parties’ Settlement Agreement meets the requisite criteria for final approval. It should therefore be granted, the Settlement Class should be certified, and this case should be dismissed with prejudice. A. Certification of the Proposed Settlement Class is Appropriate to
Resolve All Strip-Search Claims Against Defendants. To certify a class under Rule 23, the Court must find that all of the requirements of Rule 23(a) are met, as well as at least one part of Rule 23(b). See
[16] On March 2, 2010, the Court in this case issued an order granting preliminary approval to the Settlement. See Docket Entry No. 61.
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Boone, 668 F. Supp. 2d at 705 (citing Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994)). The Settlement Class readily satisfy these requirements.17 It consists of thousands of individuals, hundreds of whom have elected to receive the monetary benefits of the Settlement. The claims of the class representatives and the settlement class are typical because they are based on the same challenges to the same conduct by the Defendants, and both the named plaintiffs and their counsel are adequate representatives. There are several factual and legal questions that are common to the Class, which predominate over any questions affecting only individual members. Finally, a class action is the superior method for fairly and efficiently adjudicating this controversy. Other courts that have addressed blanket strip search policies or practices have consistently recognized the propriety of certifying such cases as class actions, and granting approval to class action settlements. See e.g., Boone, 668 F. Supp. 2d at 708. See also, Florence v. Board of Chosen Freeholders, 05-3619, 2008 U.S. Dist. LEXIS 22152, at *48 (D.N.J., Mar. 20, 2008).
1. Numerosity Under Rule 23(a)(1). Rule 23(a)(1) requires that the Class be “so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). The numerosity requirement will generally be satisfied if the named plaintiff demonstrates that the potential
[17] Defendant agrees to certification of a class for settlement purposes only; if this settlement is not approved, Defendant retains all rights to challenge certification of a litigation class.
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number of Plaintiffs exceeds forty (40). See Stewart v. Abraham, 275 F.3d 220, 22627 (3d Cir. 2001).
The Class here consists of thousands of geographically dispersed Class members, hundreds of whom have submitted claim forms. Thus, numerosity is readily satisfied in this case. See, e.g., Boone, 668 F. Supp. 2d at 705 (numerosity met in strip search class action against City of Philadelphia involving thousands of class members).
2. Commonality Under Rule 23(a)(2). Rule 23(a)(2) requires that there be “questions of law or fact common to the Class.” FED. R. CIV. P. 23(a)(2). The commonality requirement is met if Plaintiffs’ grievances share a common question of law or of fact. See Baby Neal, 43 F.3d at 56. “It is well-established in the Third Circuit that commonality does not require all claims and facts among class members be identical, rather a single common issue of law or fact shared by the named plaintiffs and the prospective class will suffice.” Clarke v. Lane, 267 F.R.D. 180, 196 (E.D. Pa. 2010) (citations omitted). A party is entitled to certification where the Class claims arise “from a common nucleus of operative fact’ regardless of whether the underlying facts fluctuate over the Class period and vary as to individual claimants.” In re Asbestos Sch. Litig., 104 F.R.D. 422, 429 (E.D. Pa. 1984) (citations omitted). Applying these principles, it is clear that the commonality requirement of Rule 23(a)(2) is easily met here. The central issues posed by this litigation are whether the GEO-run Jails had a blanket strip-search policy and/or practice during
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the Class period, and whether such a practice or policy is constitutional. See Kurian, E.D. Pa. No. 07-CV-03482 at 5 (ECF No. 68) (finding commonality satisfied based on similar constitutional challenges to a prison’s strip search practices). The Plaintiffs both assert a common claim pursuant to 42 U.S.C. § 1983 for GEO’s alleged violation of the constitution. Given these common questions central to the litigation, Rule 23(a)(2)’s requirement for the existence of common questions of fact or law has been met here. See id. See also, Boone, 668 F. Supp. 2d at 706; Florence, 2008 U.S. Dist. LEXIS 22152, at *21.
3. Typicality Under Rule 23(a)(3). Rule 23(a)(3) requires that a representative plaintiff’s claims be “typical” of those of other Class members. The commonality and typicality requirements of Rule 23(a) “tend to merge.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). The requirement of typicality, along with the adequacy of representation requirement set forth in Rule 23(a)(4), are designed to assure that the interests of unnamed Class members will be protected adequately by the named Class representative. Id. The typicality requirement “is satisfied when each Class member’s claim arises from the same course of events, and each Class member makes similar legal arguments to prove the Defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997). Here, the claims of named Plaintiffs Penny Alison and Zoran Hocevar are typical of the claims of the Settlement Class. Their claims arise from the same course of events, and both would have to make the same arguments as the Class in
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challenging the constitutionality of Defendants’ strip search practices. As such, typicality as readily satisfied here. See Florence, 2008 U.S. Dist. LEXIS 22152, at *25.
4. Adequacy Under Rule 23(a)(4). The final requirement of Rule 23(a) is set forth in subsection 23(a)(4), which requires that “the representative parties will fairly and adequately protect the interests of the Class.” FED. R. CIV. P. 23(a)(4). The Third Circuit has consistently ruled that:
Adequate representation depends on two factors: (a) the Plaintiff’s attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the Plaintiff must not have interests antagonistic to those of the Class. Weiss v. York Hosp., 745 F.2d 786, 811 (3d Cir. 1984) (quoting Wetzel v.Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975)). These two components are designed to ensure that absentee Class members’ interests are fully and adequately pursued. The existence of the elements of adequate representation are presumed, and “the burden is on the Defendant to demonstrate that the representation will be inadequate.” Asbestos School Litigation, 104 F.R.D. at 430 (citing Lewis v. Curtis, 671 F.2d 779 (3d Cir. 1982)). Representative Plaintiffs and Class Counsel have fairly and adequately represented the Settlement Class here, especially judging by the excellent settlement achieved in this litigation. With respect to the issue of adequacy of counsel, the Class is represented by competent and experienced counsel who are
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experienced in civil rights and class action litigation, and who have invested time and resources into the prosecution of this action. See Kurian, E.D. Pa. No. 07-cv03482, at 6 (ECF No. 68) (describing class counsel in that case – many of whom are the same plaintiffs’ lawyers in this case – as “especially talented lawyers” who are “vastly experienced in class action litigation” and “are more than capable of representing the Class.”).
As to the second issue, there is nothing to suggest that the named Plaintiffs have interests antagonistic to those of the absent Class members. See Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006) (adequacy “assures that the named Plaintiffs’ claims are not antagonistic to the Class”). See also, Florence, 2008 U.S. Dist. LEXIS 22152, at *31. The named Plaintiffs sought to bring an end to allegedly illegal strip-searches at the Jails, and are committed to obtaining appropriate compensation from Defendants for themselves and for the members of the proposed Class. The named Plaintiffs have come forward to represent the Settlement Class under great personal pressure – being subject to an event that some consider humiliating and would be difficult to recall on a regular basis for litigation purposes. Adequacy is therefore met in this case.
5. The Requirements of Rule 23(b)(3) Are Met. The proposed Class also satisfies the requirements of Rule 23(b)(3) of the Federal Rules of Civil Procedure. Under this rule, a class action may be maintained if:
the court finds that the questions of law or fact common to the members of the Class predominate over any questions affecting only
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individual members, and that a Class action is superior to other available methods for the fair and efficient adjudication of the controversy. FED. R. CIV. P. 23(b)(3). The Rule 23(b)(3) analysis is commonly broken down into a “predominance” part and a “superiority” part. See Boone, 668 F. Supp. 2d at 707 (citing In re Ins. Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009)). As discussed below, both parts of the test are met here.
a. Predominance. “The Rule 23(b)(3) predominance inquiry tests whether proposed Classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U. S. at 623. Although Rule 23(b)(3) requires that common issues of law and fact predominate, it does not require that there be an absence of any individual issues. See In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 344 (E.D. Pa. 1976). The Court must find that “the group for which certification is sought seeks to remedy a common legal grievance.” Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339, 348-49 (N.D. Ill. 1978); Dietrich, 192 F.R.D. at 119 (in determining whether common issues of fact predominate, “a court’s inquiry is directed primarily toward whether the issue of liability is common to members of the Class”). Rule 23(b)(3) does not require that all questions of law or fact be common. See In re Telectronics Pacing Systems, 172 F.R.D. 271, 287-88 (S.D. Ohio 1997). Here, the proposed Settlement Classes’ claims involve one central question: was GEO’s alleged practice of strip-searching every pretrial detainee admitted to the Jails constitutional when conducted without regard to the crime charged or the
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circumstances of arrest? Proof of this issue would have been the undoubted focus of any trial,18 and would predominate over any of the Plaintiffs’ individual issues. See Florence, 2008 U.S. Dist. LEXIS 22152 at *36.19 As a result, “[n]umerous courts have found Rule 23(b)’s predominance requirement satisfied in actions similar to the instant matter, reasoning that the issues respecting the existance and constitutionality of strip searching policies or practices are common to the class and subject to generalized proof.” Kurian, E.D. Pa. No. 07-CV-03482 at 6 (ECF No. 68) (citations omitted). General evidence of the Defendants’ policy and its blanket application to Class members will be required to prove their claims. See Boone, 668 F. Supp. 2d at 708. Accordingly, predominance is met.
b. Superiority. The relevant inquiry for the superiority determination is whether a class action, rather than individual litigation, is the best method for achieving a fair and efficient adjudication. See Boone, 668 F. Supp. 2d at 708 (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001)). FED. R. CIV. P. 23(b)(3) sets forth a non-exhaustive list of factors to aid the Court in determining whether a class action is the superior method of adjudication:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of
[18] Defendant agrees to certification of a class for settlement purposes only; if this settlement is not approved, Defendant retains all rights to challenge certification of a litigation class.
[19] The Third Circuit recently ruled that this single question has a single answer— an unqualified yes, GEO’s practices (to the extent any blanket strip search practice existed) were, in fact, constitutional.
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any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.20
Given the nature of this action and the fact that a substantial proportion of
the Class membership is comprised of economically disenfranchised individuals, a
class action is also the superior method by which to adjudicate claims of individual
Class members. See Florence, 2008 U.S. Dist. LEXIS 22152 at *41 (superiority
found in strip search class action). In the absence of this class action settlement,
Class members may not have even been aware that the Defendants allegedly
violated their constitutional rights, much less actually pursue those claims. See In re Nassau County Strip Search Cases, 461 F.3d 219, 229 (2d Cir. 2006). Indeed,
poor and marginalized Class members are unlikely to be able to litigate their cases
individually, particularly given the relatively small amounts of their potential
individual recovery in such a case. See Mack, 191 F.R.D. at 25; D’Alauro v. GC Services Ltd, 168 F.R.D. 451, 458 (E.D.N.Y. 1996). As Judge McLaughlin explained
in finding that superiority was met with respect to the class action settlement of the
Philadelphia strip search case,
[a] class action in this case saves the time, effort and expense of litigating the claims of as many as 37,000 class members individually and guarantees uniform treatment of individual class members within
[20] Courts have recognized that, in the context of certifying a settlement-only class, the “(D)” factor in Fed. R. Civ. P. 23(b)(3)(D) is not relevant. See Boone, 2009 U.S. Dist. LEXIS 103277, at *25. See also, In re Insurance Brokerage Antitrust Litig., 579 F.3d at 257 (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.”) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)).
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their respective subclasses… Because it is generally desirable to concentrate many smaller claims into a single forum, a class action is appropriate in this case. A class action is the superior method for adjudicating this particular matter. See Boone, 668 F. Supp. 2d at 708. Accord, Kurian, E.D. Pa. 07-cv-03482 at 7-8 (ECF No. 68) (superiority satisfied in the context of a strip search class settlement). Similarly, the superiority requirement is met here. B. The Settlement Agreement Should Be Approved By the Court. The Parties also respectfully request that the Court grant final approval to the Settlement Agreement. “Compromises of disputed claims are favored by the courts.” Williams v. First Nat’l Bank, 216 U.S. 582, 595 (1910); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 317 (3d Cir. 1998) (“Prudential II”). The Settlement Agreement spares the litigants the uncertainty, delay and expense of a trial, while simultaneously reducing the burden on judicial resources. The Court has broad discretion in deciding whether to approve a settlement. See Kurian, E.D. Pa. 07-cv-03482 at at 8 (ECF No. 68) (citing Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975)). Rule 23(e) of the Federal Rules of Civil Procedure provides that a district court must determine whether to grant approval to any settlement of a class action. FED. R. CIV. P. 23(e). In a class action, the “court plays the important role of protector of the [absent members’] interests, in a sort of fiduciary capacity.” In re Gen. Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3rd Cir. 1995) (“GM Trucks”). As discussed below, the Court should grant final approval to the settlement because Class members received notice in the best
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manner practicable under the circumstances, and because the substance of the Settlement is more than fair, reasonable and adequate, especially in light of the Third Circuit’s ruling in Florence means that GEO’s practice of strip searching all pretrial detainees entering the jail was constitutional.
1. The Notice Satisfied Rule 23(c)(2)(B). Members of a class that is settled pursuant to FED. R. CIV. P. 23(b)(3) must be provided with “the best notice that is practicable under the circumstances.” FED. R. CIV. P. 23(c)(2)(B). This includes individual notice to all potential class members that can be identified through reasonable effort. Boone, 668 F. Supp. 2d at 709. The substance of the notice must contain, in clear language, a description of the nature of the action, settlement class(es), the claims, issues and defenses, the class member’s right to enter an appearance by an attorney and to be excluded from the class, the time and manner of requesting exclusion, and the binding effect of the settlement on class members. Id. (citing FED. R. CIV. P. 23(c)(2)(B)). In this case, the notice of the settlement that was provided satisfied FED. R. CIV. P. 23(c)(2)(B). The notice, which was preliminarily approved by the Court before its dissemination, contained all of the criteria required under Rule 23(c)(2)(B). It was mailed to an over-inclusive list of Settlement Class members for whom mailing addresses were available, and then re-mailed to those who had undeliverable addresses (and for whom a forwarding address could be obtained). See §(I)(d), supra. The notice was posted at the Jails GEO currently operates and at regional probation and parole offices. The notice was publicized via frequent radio
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advertisements. And the notice was published on a website dedicated to the settlement, and was also picked up be several news sources. As such, the notice readily meets the requirements of Rule 23(c)(2)(B). See, e.g., Boone, 668 F. Supp. 2d at 709.
2. The Settlement Satisfies the Girsh Factors. The substance of the settlement should also be approved. A class settlement should be approved when the court finds it is fair, reasonable and adequate, and is in the best interest of class members. See Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 470 (E.D. Pa. 2000). In Girsh, the Third Circuit adopted the following ninefactor test for district courts to use in determining whether a class action settlement is fair, reasonable and adequate:
(1) the complexity, expense and likely duration of the litigation…; (2) the reaction of the Class to the Settlement…; (3) the stage of the proceedings and the amount of discovery completed…; (4) the risks of establishing liability…’ (5) the risks of establishing damages…(6) the risks of maintaining the Class action through trial…; (7) the ability of the Defendants to withstand a greater judgment; (8) the range of reasonableness of the Settlement fund in light of the best possible recovery…; (9) the range of reasonableness of the Settlement fund to a possible recovery in light of all the attendant risks of litigation. Girsh, 521 F.2d at 157.21 As set forth below, the Settlement satisfies the Girsh factors.
[21] This nine factor test from Girsh was recently re-affirmed and used by the Third Circuit in In re Insurance Brokerage Antitrust Litig., 579 F.3d at 258.
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a. The Complexity, Expenses and Likely Duration of the Litigation Support Final Approval.
This Girsh factor is intended to capture ‘the probable costs, in both time and money, of continued litigation.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (citations omitted). In this case, the litigation began in January of 2008. Class Counsel have reviewed over a thousand of pages of documents, served discovery requests, interviewed witnesses, and successfully opposed GEO’s motion for judgment on the pleadings. In all, Plaintiffs’ counsel contends that they have expended in excess of 1,188 hours on this case. Further, Class Counsel have collectively incurred out of pocket costs of $8,466.51. Plaintiffs have not compensated for any of their work on the case, nor have they been reimbursed for any of these expenses.
If Plaintiffs were to continue to trial, the trial would be complex and expensive. Moreover, the outcome of trial would be uncertain. To prosecute this as a class action, Plaintiffs would ultimately have to prove that the Defendant’s stripsearch policy was unconstitutional. Clearly, this is more difficult—indeed, impossible—in light of the recent Precedential Third Circuit opinion in Florence.
Moreover, even if Plaintiffs were successful on the merits of their claims (and that holding was not disturbed by the Third Circuit and/or Supreme Court), Defendants may argue that Class Members would still be required to prove
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damages individually, or in group mini-trials.22 This may have led to unsuccessful results with respect to class certification.
In sum, Class Counsel in this case weighed the risks of pursuing further litigation against the benefit of receiving the proposed settlement in this case, and concluded it was in the Class members’ best interest to resolve this matter at this juncture. Similarly, the Defendants weighed their risks in proceeding to trial, and determined that the settlement was in its best interests as well. In light of the current legal landscape, the Settlement is therefore more than fair, reasonable and adequate. See Boone, 668 F. Supp. 2d at 712-713.
b. The Reaction of the Class Justifies Final Approval. Under the second Girsh factor, the reaction of the Class is relevant to assessing whether the settlement should be approved. See Prudential II, 148 F.3d at 318. This factor is “attempts to gauge whether members of the class support the settlement…” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (citations omitted). In this case, the low number of exclusions (one) and objection requests (zero) create a strong presumption in favor of approving the Settlement. See In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (“No class members objected to either settlement. This fact strongly militates a finding that the settlement is fair and reasonable.”); Boone v. City of Phila., 668 F. Supp. 2d 693, 712 (E.D. Pa. 2009)
[22] There is recent authority where courts have refused to certify a class in a strip search class action. See Rattray v. Woodbury County, No. 07-4032, 2008 U.S. Dist. LEXIS 66922 (N.D. Iowa Sept. 2, 2008), aff’d., No. 09-2314, 2010 U.S. App. LEXIS 16207 (8th Cir. Aug. 5, 2010).
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(“The fact that so few potential class members objected to or opted out of the settlement supports a finding of general acceptance of the settlement in the class.”).23 See also, Austin v. Pa. Dept. of Corrections, 876 F. Supp. 1437, 1458 (E.D.Pa. 1995) (approving class action settlement of civil rights claims brought by prisoners, notwithstanding the receipt of 457 written objections by class members) (DuBois, J.). This is particularly true where, as here, the settlement notification mailed to Class members for whom addresses were ascertainable (and the notice posted in the prisons and parole/probation offices and on the Settlement Website) contained clear instructions for the procedures to opt-out from or object to the Settlement.
In response to the Court-approved notice, nearly 600 Class members have sent in claim forms to the Claims Administrator. Id. Depending on how this participation is measured, this represents a claims rate as high as 14.5% whereby hundreds of Class members will be entitled to the maximum payment under the Settlement ($400.00 each). This positive response rate, coupled with the fact that there were no objections and only one opt-out, supports a finding that this Girsh factor is met. Indeed, courts have granted final approval to class action settlements with comparable participation rates. See Boone, 668 F. Supp. 2d at 702-03 (approving strip search class action settlement with 15% participation); (McLaughlin, J.); Kurian, E.D. Pa. No. 07-cv-03482 (ECF No. 68) (approving
[23] The fact that the Settlement Agreement allows dissatisfied class members to opt-out of the settlement further supports a finding, in and of itself, that the Settlement is fair and reasonable. See In re Insurance Brokerage Antitrust Litig., 579 F.3d at 259, n.17. See also, id. at 274, n.29.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 41 of 48
settlement of strip search class action with 10.8% participation) (Diamond, J.); Van Horn v. Nationwide Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 42357 (N.D. Ohio Apr. 30, 2010) (“It is not unusual for only 10 or 15% of the class members to bother filing claims.”) (quoting In re TJX Companies Retail Sec. Breach Litig., 584 F. Supp. 2d 395, 404 (D. Mass. 2008)); Hughes v. Microsoft Corp., No. C98-1646C, 2001 U.S. Dist. LEXIS 5976, at *23-24 (W.D. Wash. Mar. 21, 2001) (approving settlement where approximately 7.4% of the potential class members that received a mailed notice “wrote to class counsel wanting the benefits of the settlement.”); Weber v. Government Employees Insurance Co., 262 F.R.D. 431, 440-41 (D.N.J. 2009) (granting approval to a settlement with a 15.1% claims rate reached after two rounds of notice); McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006) (approving strip search settlement with 8.5% participation rate). See also, Zimmer Paper Products Inc. v. Berger & Montague, P.C., 758 F.2d 86, 92-93 (3d Cir. 1985) (affirming district court’s dismissal of a challenge by a class member to the notice associated with a court-approved settlement that had a 12% response rate). Furthermore, the Settlement Administrator has affirmed that the response rate in this case is comparable to that obtained in similar strip search class action settlements. See Cozzi Decl. at ¶ 12.
c. The Stage of the Proceeding and Amount of Discovery Favor Final Approval.
It has been generally recognized by the Third Circuit that settlements that are made after discovery reflect the true value of the claim. See Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993). The parties in this case exchanged
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discovery requests and disclosures, and reviewed thousands of pages of documents regarding the admittance of pretrial detainees at the Jails. This weighs heavily in favor of approving the Settlement as fair, reasonable and adequate. Boone, 2009 U.S. Dist. LEXIS 103277, at *38 (“The discovery and other investigations that the parties have undertaken render them sufficiently informed to make a determination about the fairness of a settlement.”).
Moreover, as discussed above, the Settlement was a product of extensive negotiations between the parties, including a mediation before Retired Judge Melinson. “A presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 630 (quoting Hanrahan v. Britt, 174 F.R.D. 356, 366 (E.D. Pa. 1997)). That presumption should likewise apply here.
d. The Risks of Establishing Liability and Damages Weigh in Favor of Approving Settlement.
The risks of establishing liability and damages are the fourth and fifth factors to be weighed when evaluating a Settlement. See In Re Automotive Refinishing Paint Antitrust Litig., 617 F. Supp. 2d at 343. “Although the Court must weigh the relative strengths and weaknesses of each side to determine the risks of establishing liability, it should ‘not decide the merits of the case or resolve unsettled legal questions.’” Austin v. Pennsylvania Dep’t of Corrections, 876 F. Supp. at 1471 (quoting Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981)).
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This factor in and of itself weighs heavily in favor of this Settlement being approved. Clearly, the recent precedential opinion issued by the Third Circuit in Florence illustrates the risks associated with establishing liability and damages in this case. Indeed, given the current state of the law in this Circuit, class members would be entitled to no recovery as a matter of law were this case to be filed or litigated today.
In addition, this putative class action had inherent risks merely by virtue that the GEO represented by the experienced and highly-skilled defense counsel at Reed Smith LLP. If this case were to proceed to trial, Plaintiffs would have faced a number of challenges in order to succeed before a jury. Specifically, Defendants may have argued that Plaintiffs would have been required to try the individual actions for damages, which may have led to unsuccessful results. Further, there is a real likelihood that Plaintiffs may have undergone years of litigation in the appellate courts. See In Re Michael Milken & Associates Securities Litigation, 150 F.R.D. 57, 65 (S.D.N.Y. 1993). And even before Florence was resolved by the Third Circuit, two en banc circuit court decisions had found that blanket strip-searches are not unconstitutional regardless whether reasonable suspicion exists. See § (II)(B)(2)(a), supra. See Boone, 668 F. Supp. 2d at 713 (citing to “the risk that the class members might not recover at all…”). Thus, based on the above risks, Plaintiffs obtained a more than favorable result for the Class.
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e. The Risks of Maintaining a Class Action Through Trial Weigh in Favor of Approving this Settlement.
The risks of maintaining a Class through trial support approval of the Settlement. See Prudential II, 148 F.3d at 321. In light of the fact that the Third Circuit has found that a district court always possesses the authority to decertify an action, this factor in and of itself weighs in favor of settlement. “Consistent with this reality, we are satisfied that the inherent difficulties of bringing a Class action to trial weighs in favor of approving the Settlements.” In Re Automotive Refinishing Paint Antitrust Litigation, 617 F.Supp. 2d at 344. As discussed above, the risk of establishing any liability in light of Florence supports this factor. This Court should find that this factor weighs in favor of approving the Settlement.
f. The Ability of Defendants to Withstand Greater Judgment.
Under the seventh Girsh factor, it must be considered whether the defendant could withstand an “amount significantly greater than the Settlement.” In re Cendant Corp. Litig., 264 F.3d 201, 240 (3d Cir. 2001) (emphasis supplied). Due to the realities of the current macro-economic environment, this factor weighs heavily in favor of finding that a settlement valued at up to nearly $3 million is fair, reasonable and adequate. See Boone, 668 F. Supp. 2d at 712 (taking into consideration the current financial situation of the city-defendant in assessing fairness of settlement). And even if it were theoretically possible that GEO could withstand a “significantly” larger judgment after a trial, this Girsh factor should be balanced against “the risk that the plaintiffs would not be able to achieve any
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greater recovery at trial.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 632 (citing Lazy Oil Co. v. Witco Corp., 95 F. Supp. 2d 290, 318 (W.D. Pa. 1997)). Indeed, any further litigation on these claims at this time is entirely doomed by the Florence opinion, which held strip searches similar to those employed here are facially legal and constitutional. When viewed through this spectrum under the circumstances here, it is readily apparent that this Girsh factor is satisfied.
g. The Reasonableness of the Settlement in Light of the Best Possible Recovery Weighs in Favor of Approving this Settlement.
The final two Girsh factors require the court to determine whether Plaintiffs settled for appropriate value in light of the Class members’ damages. See In Re Automotive Refinishing Paint Antitrust Litigation, 617 F. Supp. 2d at 344. This matter settled for $2.99 million, and each Class member that timely submitted a claim form will receive $400. This is a fair value for the settlement, and is comparable to settlement awards in other strip search cases—the large majority of which were reached prior to the recent split among the circuits. See McBean v. City of New York, 233 F.R.D. 377, 388 (S.D.N.Y. 2006) (awarding either $750 or $1,000 per claimant, depending on the number of times the class member was searched); Kurian, E.D. Pa. No. 07-cv-03482 at 13 (ECF No. 68) (describing the allocation of payments ranging from $50 to $900 to class members in a strip search class action settlement as “fair, reasonable, and adequate.”). As is demonstrated by the above analysis of the Girsh factors, Plaintiffs’ and Defendant’s Settlement is clearly an
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excellent result and is fair, reasonable and adequate under Girsh. See Boone, 668 F. Supp. 2d at 713.
h. The Recommendation of Class Counsel. Finally, in addition to the Girsh factors discussed above, “several courts have accorded significant weight to the view of experienced counsel who have engaged in arm’s-length negotiations.” Austin, 876 F. Supp. at 1457 (citing In re Unisys Corp. Retiree Medical Benefits ERISA Litig., MDL No. 969, 1994 U.S. Dist. LEXIS 17877 (E.D. Pa. Nov. 3, 1994)). The recommendation of Class counsel in this case that the Settlement be approved should, accordingly, be considered by the Court. See id. at 1472-73 (citing to the experience of Mr. Rudovsky and others, and finding that their recommendation that the settlement be approved “is entitled to great weight.”).
IV. CONCLUSION For the foregoing reasons, Plaintiffs and Defendant respectfully request that this Court enter an Order that: (1) provides final approval to the Settlement as fair, reasonable and adequate, and (2) certifies the Class action with respect to the claims against Defendant pursuant to FED. R. CIV. P. 23(a) and FED. R. CIV. P. 23(b)(3) for the purpose of effectuating a class action settlement of the claims against the Defendants.
/ / /
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Dated: September 27, 2010

Respectfully submitted,

FOR PLAINTIFFS AND THE CLASS:

FOR DEFENDANT:

/s/ David Rudovsky David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400

/s/ Carolyn P. Short Carolyn P. Short Shannon E. McClure REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100

Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500

Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 215.592.1500

Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610.431.9505

Jennifer R. Clarke THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 S. Ninth Street, Suite 700 Philadelphia, PA 19107

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CERTIFICATE OF SERVICE I, Shannon E. McClure certify that on this 27th day of September, 2010, I caused the foregoing MOTION AND MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION, and related motion, proposed order, and exhibits thereto, to be filed electronically using the Court’s CM/ECF system, and thereby served it upon all registered ECF users in this case.
By: /s/Shannon E. McClure Shannon E. McClure

 
 Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

[PROPOSED] ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND JUDGMENT THIS CASE coming on for hearing before the Honorable Jan E. Dubois pursuant to this Court’s Order of March 2, 2010 in order for this Court to conduct a final fairness hearing to determine whether the proposed Settlement Agreement between the Parties is fair, reasonable and adequate, and to address Class Counsel’s application for an award of attorney’s fees and costs; and the Settlement Class Members being represented by Class Counsel and Defendant being represented by their attorney; AND THE COURT having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendant, and having considered the submissions by Class Members, now makes the following:

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 2 of 48

1. action.

FINDINGS OF FACT This action was commenced on January 30, 2008, as a putative class

2. After over a year of intensive litigation, including extensive discovery and motion practice, and as a result of intensive, arm’s length negotiations between Class Counsel and Defendant, including a settlement conference before former Magistrate Judge James K. Melinson, the Parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendant (“Settlement Agreement”). The resulting Settlement Agreement was preliminarily approved by the Court on March 2, 2010. See Docket Entry No. 61.

3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed Settlement. The Notice Plan provided an opportunity for Class Members to file objections to the Settlement, and an opportunity to opt-out of the Settlement.

4. As of the July 1, 2010 deadline for the filing of objections, none were filed. Given the size of this Settlement, and the Notice Plan described above, this Court finds that the non-existence of any objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendant.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 3 of 48
5. The settling Parties have filed with the Court an affidavit from Ryanne Cozzi of Gilardi & Co. (the Settlement Administrator), declaring that the mailing and publication of the Court-approved notice, consistent with the Notice Plan, has been completed.
6. The Court finds that the published radio notice, the mailed notices, the posted notices at the Jails GEO operates and appropriate probation and parole offices, and the website notice constitute the best practicable notice of the Fairness Hearing, proposed Settlement, Class Counsel’s application for fees and expenses, such notice constituted valid, due and sufficient notice to all members of the Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of Pennsylvania and any other applicable law.
7. Any persons who wished to be excluded from this action were provided an opportunity to “opt-out” pursuant to the Notice. As of the deadline to do so, July 1, 2010, only one person, Timothy Montgomery, has elected to opt out of the Settlement. Mr. Montgomery shall not be bound by the Settlement Agreement or the final judgment herein.
8. Settlement Class Members are bound by the: Settlement, Settlement Agreement, Release contained within the Settlement Agreement, and the Final Order and Judgment. Settlement Class Members do not have a further opportunity to opt-out of this Action.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 4 of 48
9. Any Class Member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Class Counsel’s application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
10. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
a. The liability issues in this case have been vigorously contested. b. This Settlement has the benefit of providing relief to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the Parties to this litigation. This Settlement provides Class Members with a substantial monetary benefit and equitable relief.
c. This Settlement is clearly a product of hard-fought litigation between the Parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendant.

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11. Class Counsel submitted to the Court and served on the Defendant their application for reasonable attorneys’ fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel’s request and hereby _______________ the request.
12. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems.
13. The parties agree that an injunction is appropriate to ensure that Defendant complies with its revised written strip search policies at the Jails, as set forth in the Settlement Agreement.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW:
14. This Court has jurisdiction over the Parties and the subject matter of this proceeding.
15. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Class is certified for purposes of final settlement:
All persons who were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, but were strip searched upon their admission into one or more of the Jails pursuant to Defendants’ then-

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 6 of 48
existing strip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The Class Period is from January 30, 2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center, and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
16. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a class action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for class certification under Rule 23 are present. The Class Members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class Members predominate over individual issues and should be determined in one proceeding with respect to all Class members. The Class Representatives claims are typical of those of the Class. The Class action mechanism is superior to alternative means for adjudicating and resolving this action.
17. The Class Representatives, Penny Allison and Zoran Hocevar, are entitled to and are hereby awarded a payment of $2,500.00 each, in recognition of the efforts they undertook in connection with this lawsuit. All Class Members who have made claims on the settlement are entitled to receive their pro rata share of the Settlement fund, not to exceed $400.00, after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 7 of 48
18. Any unused monies will revert to The GEO Group, Inc. 19. Class Counsel are qualified, experienced, and have aggressively litigated this case, thereby demonstrating their adequacy as counsel for the Class. Joseph G. Sauder and Benjamin F. Johns of Chimicles & Tikellis LLP are hereby appointed as counsel for the Class.
20. The Court grants final approval of the Settlement Agreement, as being fair, reasonable and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
21. The Courts finds that the request for attorneys’ fees is reasonable.
NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
22. The Parties’ Joint Motion for Final Approval of the Proposed Settlement is GRANTED.
23. The Plaintiffs’ Motion for fees of $899,700.00 and expenses of $7,500.00 and the payment of incentive awards to each of the named plaintiffs in the amount of $2,500.00 each is _______________. Plaintiffs’ counsel are hereby awarded $ __________________ in fees and $ _____________________ in expenses.
23. The Settlement Class Representatives, Penny Allison and Zoran Hocevar, are entitled to and are hereby awarded a payment of $2,500.00 each in recognition of the efforts they undertook in connection with this lawsuit, All Class Members who have made claims on the Settlement are entitled to receive their pro

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 8 of 48
rata share of the Settlement Fund, not to exceed $400.00, after administrative expenses, attorneys’ fees and expenses, and incentive awards are deducted from the fund.
24. This Action and all claims against the settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement.
25. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant, and any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.
26. Pursuant to 23 Pa. Cons. Stat. § 4305(b)(10) – and upon application by any domestic relations agent within thirty (30) days of this Order – any monies due to class members under the terms of this settlement shall be offset by any arrearages for child support obligations.
IT IS SO ORDERED.
Dated: __________________
_____________________________ The Honorable Jan E. Dubois United States District Judge

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 9 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION Plaintiffs Penny Allison and Zoran Hocevar, on behalf of themselves and all others similarly situated, and Defendant, The GEO Group, Inc., respectfully submit this joint motion for final approval of settlement and class certification. Pursuant to Rule 23 of the Federal Rules of Civil Procedure – and for the reasons set forth in the accompanying memorandum of law – Plaintiffs and Defendant respectfully request that this Court grant final approval to the settlement and certify the settlement class pursuant to Rule 23.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 10 of 48

Dated: September 27, 2010
FOR PLAINTIFFS AND THE CLASS:
/s/ David Rudovsky David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500
Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 215.592.1500
Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610.431.9505
Jennifer R. Clarke THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 S. Ninth Street, Suite 700 Philadelphia, PA 19107 215.627.7100

FOR DEFENDANT:
/s/ Carolyn P. Short Carolyn P. Short Shannon E. McClure REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 11 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1 – 100, in their official and individual capacities,
Defendants.

: : : : 2:08-cv-00467-JD : : Judge Jan E. Dubois : : CLASS ACTION : : : : : : :

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL
APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION

David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500
Counsel for Plaintiffs [Additional Counsel on Signature Page]

Carolyn P. Short Shannon E. McClure Roberts REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100
Counsel for Defendant The GEO Group, Inc.

Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 12 of 48
Plaintiffs Penny Allison and Zoran Hocevar (together, “Plaintiffs”), on behalf of themselves and all others similarly situated, and Defendant The GEO Group, Inc. (“GEO”),1 respectfully submit this Memorandum of Law in Support of Plaintiffs’ and Defendants’ Motion for Final Approval of Settlement and Class Certification. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Parties respectfully request that this Court grant final approval to the Settlement, certify the action as a class action for purposes of settlement, and dismiss this action with prejudice as set forth in the Settlement.2
I. INTRODUCTION The Settlement, which represents the culmination of over eighteen months of highly contested litigation between the Parties, provides substantial benefits to certain individuals who were strip searched upon admission to the six GEO Jails at issue in this case: the George W. Hill Correctional Facility; the Guadalupe County Correctional Facility; the Frio County Detention Center; the Dickens County Detention Center; the Tri-County Detention Center; and the Newton County Correctional Center (the “Jails”).3 See Amended Settlement Agreement dated
[1] Plaintiffs and Defendants shall be collectively referred to herein as the “Parties.” [2] Separately, Plaintiffs’ Counsel will be filing a motion and supporting memorandum of law in support of their request for attorneys’ fees, expenses, and incentive payments for the two named plaintiffs. The parties agreed that GEO has the right to contest Plaintiffs’ counsel’s application for attorney fees and costs. Amended Settlement Agreement (ECF No. 60-3) § III(D) at 11. GEO will contest Plaintiffs’ counsel’s application for attorney fees. [3] Of the six Jails covered by the Settlement, GEO no longer operates the following four: the George W. Hill Correctional Facility; the Dickens County Detention

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March 1, 2010 (the “Settlement”) (Docket Entry No. 60-3). Plaintiffs allege that
GEO violated the constitutional rights of Plaintiffs and Class members by illegally
strip searching them in the absence of reasonable suspicion. The Class is defined
as:
All persons who were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, but were strip searched upon their admission into one or more of the Jails pursuant to Defendants’ thenexisting strip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The Class Period is from January 30, 2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center, and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
Settlement at 2.4
The Settlement creates a fund valued up to $2,999,000.00 for the benefit of
Class members who were committed to one of the Jails during the class period. See
Settlement at §(I)(OO) (defining the “Settlement Amount” to be $2,999,000.00). See
also, id. at § (I)(NN) (providing that the entire Settlement Amount is to be
“earmarked for the sole purpose of this case, and will not be utilized for any other
payments or purposes.”).
Center; the Newton County Correctional Center; and the Tri-County Detention Center.
[4] The Class Period is longer at Guadalupe County Correction Facility because the applicable New Mexico Statute of limitations is longer (three years instead of two).
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There is a tiered-structure to GEO’s obligation to pays into the Settlement Fund. The first $500,000 was paid into the fund to cover the costs of administration and claims. Settlement at § III(B)(1). The second contribution of $1,000,000 is to be paid after the close of the claims period. Id. at § III(B)(2).1 The Third Contribution is isto be paid into the settlement fund if the amount of claims received exceeds the amount of the Second Contribution; if the amount of the Second Contribution is exceeded by the amount of money necessary to pay the number of claims received, only the amount of money necessary to pay those claims need be paid (not the entire Third Contribution). Id. at § III(B)(3) (“In the event the amount of claims received: (a) do not exceed the amount of Second Contribution, GEO does not have to pay the Third Contribution into the Settlement Fund until it receives notice, if any, from the Settlement Administrator that such contribution is needed to satisfy any claims; or (b) exceeds the amount of the Second Contribution but does not rise to the level of the Third Contribution amount, GEO shall pay into the Settlement Fund an amount of the Third Contribution identified by the Settlement Administrator as necessary to satisfy the claims received.”). However, the entire amounts of the Second and Third Contributions were to be “set aside by GEO and earmarked for
[1] The parties have mutually agreed to keep the Claims Period open longer than the September 14, 2010 original claims date; all claims postmarked on or before September 30, 2010 will be considered timely.
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the sole purpose of funding the Settlement Fund, as needed.” Id. at (III)(B)(2)-(3). Any money that is unused reverts to GEO. Id. at § III(C)(1).5
As set forth in the Settlement, Class members who timely submitted a claim form will be entitled to a check in the amount of $400.00. Id. at § (III)(C)(1). Hundreds of class members elected to participate in this aspect of the settlement and sent in timely claim forms. Only one class member opt-ed out. None objected.
In addition to this benefit, the Settlement also provided substantial nonmonetary benefits to the Class. Specifically, the settlement agreement expressly provides that upon the filing of (and as a result of) this lawsuit, GEO “stopped strip searching detainees admitted to the Jails without reasonable suspicion ….” See Settlement at § (III)(A)(1). This commitment to stop conducting blanket strip searches remained in effect from the filing of this lawsuit in January of 2008 until around the time that the Third Circuit recently issued its decision in Florence, discussed infra.
In short, the Parties respectfully submit that this Settlement is fair, adequate, and reasonable for the Class (particularly given the current state of the law after Florence), and that the requirements for final approval are satisfied.
[5] The reverter and the $400 per claim cap are material settlement terms. Settlement Agreement § III(C)(1) (“Both the reverter and the $400 per claim cap are critical, essential and nonnegotiable terms of the settlement, and that nonacceptance of theses terms makes this agreement null and void, unless both parties agree to any changes in a signed writing.”).
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II. BACKGROUND A. Plaintiffs’ Allegations and GEO’s Defenses. On January 30, 2008, Plaintiffs filed this putative class action lawsuit against GEO challenging its alleged practice of strip searching all arrestees regardless of crime, and regardless of whether the officers at intake had reasonable suspicion justifying a search. Plaintiffs allege that GEO maintained an unconstitutional strip search policy and practice throughout the class period by maintaining a strip-search policy whereby it conducted visual strip searches on all pretrial detainees upon their admission to the Jails in the absence of reasonable suspicion, including those charged with misdemeanor offenses or other minor crimes (referred to as a “blanket” strip search). GEO denies that it had a blanket strip search policy, and contends that pretrial detainees were only strip searched when reasonable suspicion existed. GEO further contends that it only conducted strip searches where appropriate, and that to the extent that any practice of strip searching all pretrial detainees existed, it was a result of the decision-making of the county or governmental units for which GEO operated Jails, and was contrary to GEO’s own written Corporate Policy. All pretrial detainees who entered the jails were going to inter-mingle with the general population. GEO’s sole purpose in strip searching any detainee was to prevent contraband from entering the general population (including drugs, weapons and money). GEO contends to have had a long history of recovering contraband in the jails via intake strip searches.
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In response to Plaintiffs’ lawsuit, to the extent any jail had a strip search practice of permitting strip searches with less than reasonable suspicion, GEO immediately took steps to effectively implement all of the injunctive relief Plaintiffs sought in the Complaint. Specifically, GEO, through its outside counsel Reed Smith, LLP, immediately launched an extensive investigation into what strip search practices were employed at each of the potentially affected Jails. As a result of this investigation, GEO took steps to recommit to its Corporate Policy to ensure that all Jails employed a policy that no person detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the inmate was carrying or concealing contraband, was strip searched upon their admission to the Jails. GEO also implemented a strip search checklist (or “log”) for use at each Jail, which is now completed by intake personnel for each detainee. Detainees are only strip searched after that checklist or log is filled out, and only if the checklist or log permits a strip search under Plaintiffs’ understanding of the law – i.e., only if the checklist or log provides reasonable suspicion. GEO ensured that all intake personnel and all supervisory employees were affirmatively made aware of these requirements, and ensured that new employees would be trained on these procedures before working at intake.
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B. History of the Litigation. After the Amended Complaint in this action was filed on March 28, 2008, a new en banc decision was issued by the Eleventh Circuit Court of Appeals, Powell v. Barrett, 541 F.3d 1298, 1310 (11th Cir. 2008) (en banc), which GEO contends markedly changed the landscape of strip search litigation by calling into question decades of appellate interpretation of the seminal case of Bell v. Wolfish, 441 U.S. 520, 559 (1979). As a result of Powell, GEO filed a Motion for Judgment on the Pleadings, which required extensive briefing by the Parties. See Docket Entry Nos. 29, 35, 37, 39, and 40. On March 25, 2009, this Court issued a memorandum and order that denied GEO’s Motion for Judgment on the Pleadings. See Docket Entry No. 41. Shortly thereafter, GEO moved for certification for immediate appellate review pursuant to 28 U.S.C. §1292(b) (the “1292(b) Motion”), which was opposed by Plaintiffs and also required extensive and complicated briefing. See id. at Nos. 43, 44, 48, 49. While the § 1292(b) Motion was pending, the parties entered into settlement negotiations. In addition to this and other motion practice before the Court, the Parties have engaged in discovery over the course of this litigation.6 This included serving and responding to interrogatories and document requests. The parties also exchanged initial disclosures pursuant to FED. R. CIV. P. 26(a). GEO gathered and produced over 1,200 pages of documents to Plaintiffs, which were reviewed and analyzed by their counsel. Plaintiffs’ counsel also provided counsel for GEO with
[6] On October 7, 2008, the Court issued an order that, inter alia, granted in part and denied in part GEO’s motion for a stay of discovery. See Docket Entry No. 33.
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responsive documents. In addition, Plaintiffs’ counsel contend that they engaged in a substantial amount of informal discovery and fact gathering.
C. Settlement Negotiations. While GEO’s 1292(b) Motion was pending before this Court, the Parties entered into settlement negotiations in the late spring of 2009, with the help of retired Magistrate Judge James R. Melinson. The Parties met for a day-long mediation session conducted by Judge Melinson and continued negotiations afterwards, conferring by telephone on an almost daily basis. After continuing to negotiate for over a month, the Parties ultimately reached a preliminary agreement to settle on July 17, 2009. The Parties then spent several months memorializing the terms of the Settlement Agreement, preparing for the administration of the Settlement, and drafting the Class Notice that is attached to the Settlement Agreement. Although these lengthy and complex negotiations have been difficult and time consuming, the Parties’ good-faith efforts to resolve this Litigation ultimately resulted in an arm’s-length Settlement representing a thoughtful compromise. The Settlement takes into consideration the Plaintiffs’ concerns regarding their alleged constitutional violations, the Defendant’s prison security concerns, as well as the Parties’ respective positions regarding the viability of Plaintiffs’ claims. D. Recent Developments in the State of the Law on Blanket Strip
Searches. As noted above, during the pendency of this case, the Eleventh Circuit issued its en banc decision in Powell, 541 F.3d at 1298. At the time of the settlement
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negotiations, the parties were also aware that the Ninth Circuit Court of Appeals had ordered en banc consideration of Bull v. City and County of San Francisco, a strip search case presenting similar issues. On February 9, 2010, the Ninth Circuit, 7-4, upheld San Francisco’s strip search policy, permitting strip searches of all pretrial detainees without individualized reasonable suspicion. Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).
On September 21, 2010, the Third Circuit Court of Appeals (which had not previously addressed the issue) issued a precedential opinion which held that the constitution does not forbid jails from conducting blanket strip searches, in the absence of reasonable suspicion, of all newly admitted pretrial detainees, including those arrested only for minor offenses. Florence v. Board of Chosen Freeholders of the County of Burlington, ___ F.3d ___, No. 09-3661, 2010 WL 3633178 at *13 (3d Cir. Sept. 21, 2010).7 The Third Circuit “rejected Plaintiffs’ argument that blanket strip searches are unreasonable because jails have little interest in strip-searching arrestees charges with non-indictable offenses.” Id. at *10. Indeed, the majority opinion reached this conclusion notwithstanding the plaintiffs’ argument that the jails did not put forth any evidence of a past smuggling problem or of a single new pretrial detainee who attempted to conceal contraband. See Florence, 2010 WL 3633178 at 30 (“[O]ur interpretation of the Supreme Court’s decision in Bell leads
[7] Even before the issuance of Florence, infra, both Judge McLoughlin and Judge Diamond recognized this uncertainty in the law on the state of strip searches in recent decisions granting final approval to class action settlements challenging blanket searches. Boone v. City of Philadelphia, 668 F. Supp. 2d 693, 704-05, 710 (E.D. Pa. 2009) (McLaughlin, J.); Kurian v. County of Lancaster, E.D. Pa. No. 07-cv03482, at 9-10, 12 (E.D. Pa Apr. 9, 2010) (unpublished) (ECF No. 68).
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us to conclude that the Jails are not required to produce such a record.”). Judge Pollak filed a dissenting opinion.
Thus, the legal landscape has changed dramatically since the settlement in this case was reached. Were litigation still proceeding, GEO would file, and this Court would likely grant, a motion for judgment on the pleadings to dismiss Plaintiffs’ claims based on Florence. In light of the sea change occurring in this area, this settlement could, then, represent for the near future one of the last strip search settlements negotiated within at least the Third, Ninth, and Eleventh Circuits.
E. Benefits Created by the Settlement. The Settlement Agreement provides for the creation of a Settlement Fund to compensate the Class for these alleged constitutional violations, and provides class members with certain non-monetary benefits.
1. The Monetary Benefit Created. The Settlement creates a Settlement Fund valued up to $2,999,000.00, tiered in three contributions. See Settlement at §§ (I)(OO) and (III)(B). Class members were eligible to receive a pro rata share of the Settlement Fund, up to a maximum recovery of $400.00 each.8 Id. at § (III)(C)(1). These payments to Class members, as well as administrative expenses (including the costs of settlement administration, website administration and the provision of notice to class
[8] Based on the number of timely claims submitted by Class members, each eligible Class member will receive $400.00, the maximum amount permissible under the Settlement.
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members), and the amount awarded by the Court for attorneys’ fees and costs and incentive awards to the Class Representatives, will be deducted from the Settlement Fund. In the event that there is any money remaining in the Settlement Fund after these deductions, the unused portion of the Settlement Fund will revert to GEO. Id. In the event that the number of claims received does not require payment of all of part of the Third Contribution, GEO does not need to make the Third Contribution.9 Id. at § III(B)(3). Both the reverter and the $400 per claim cap are critical and essential terms of the settlement, and are non-negotiable terms by GEO.10
2. The Non-Monetary Benefits. GEO agreed to all of the class injunctive relief sought by plaintiffs. Specifically – and as a result of this lawsuit – GEO agreed to ensure that all Jails subject to the Settlement Agreement did not conduct blanket strip searches of people detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion, be strip searched upon intake at the Jails. And while the prospective injunctive relief in the
[9] However, as noted above the Settlement provides that the entire amount of the Third Contribution ”shall be set aside by GEO and earmarked for the sole purpose of funding the Settlement Fund, as needed.” See Settlement at § (III)(B)(3).
[10] The creation of this Settlement Fund – and extent to which its proceeds will be distributed to Class members who timely submitted valid claim forms – is not affected by the recently issued Florence decision.
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settlement will not be enforceable so long as Florence remains the controlling law in the Third Circuit,11 the settlement created value for a thirty-two (32) month period by virtue of GEO’s commitment to cease blanket strip searches during this period.
F. Implementation and Administration of the Settlement. Promptly after the Court’s March 2, 2010 order granting preliminary approval to the Settlement, the parties began providing the Class Members with notice, as set forth in the Settlement Agreement. In response, 594 class members submitted timely claim forms to the settlement administrator.
1. Class Notice and Settlement Administration. Pursuant to the Settlement Agreement, the Court-approved notice was mailed to the last known or readily ascertainable mailing addresses for the 6,551 potential Class Members where address information could reasonably be obtained.12 The notice was also provided to the Class by posting notices at each of the Jails GEO currently operates, and the probation and parole offices in the relevant geographic areas. In addition, the Settlement Administrator, Gilardi & Co., LLC, caused an announcement of the Settlement on the radio stations KLEY in San
[11] Should the Third Circuit’s 2-1 Florence decision be reversed by an en banc panel and/or by the Supreme Court of the United States, the prospective injunction in the settlement will be reinstated by operation of law. Plaintiffs note that the en banc panels of both the Eleventh and Ninth Circuits have granted reviews of Powell and Bull, respectively. [12] Of the 6,551 addresses of potential Class Members on the Mailing List to whom notice was mailed, 2,211 notices were returned as undeliverable from the initial mailing. See Cozzi Declaration at ¶ 6. Through a third party locator service, Gilardi has performed address searches for these potential class members and was able to find updated addresses for 1,048 class members. Id. A total of 4,076 Notice Packets that were mailed were not returned as undeliverable. Id. at ¶ 7.
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Antonio Texas, KISS in San Antonio Texas, KTCX in Beaumont Texas, KIKR in Beaumont Texas, KAIQ in Lubbock Texas, KFMX in Lubbock Texas, KSSR in Santa Rosa New Mexico, WPHI in Philadelphia Pennsylvania, ESPN 950.in Philadelphia Pennsylvania, ESPN 97.50 in Philadelphia Pennsylvania, and KGMO in Ullin Illinois. See Declaration of Ryanne Cozzi at ¶ 8 (Ex. 1). The radio notice was broadcasted a total of 454 times throughout these 11 markets. Id.
The Settlement Administrator established a website where Settlement Class Members could (and still can) obtain information and Claim Forms,13 and maintain a toll-free number for use by Class Members. The Settlement Website made claim forms and notice available in both Spanish and English. The Settlement Website was visited by 3,110 unique visitors. See Cozzi Decl. at ¶ 4. The Settlement Administrator has also received 222 calls from potential Class Members inquiring about the settlement. Id. at ¶ 3. In addition to the mass mailing that occurred on May 17, 2010, the Settlement Administrator has sent 213 claim forms to class members that called to request one. Id. at ¶ 9.
News of the settlement also received media coverage in several regional markets, including the greater Philadelphia, San Antonio, Southern Illinois, and Albuquerque, New Mexico areas. See Exhibits A-F of the Declaration of Benjamin F. Johns in Support of Final Approval of Settlement (Ex. 2). While this third-party news coverage was not expressly contemplated in the Settlement or preliminary approval order, it is additional evidence that that Class members were provided
[13] See http://www.multistatestripsearchsettlement.com/casedocs.html. - 13 -

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with constitutionally adequate notice of the Settlement. See Krell v. Prudential Ins. Co. of Am. (In Re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions), 148 F.3d 283, 327 (3d Cir. 1998); Wilson v. Airborne, Inc., No. 07-770, 2008 U.S. Dist. LEXIS 110411, at *13 (C.D. Cal. Aug. 13, 2008) (“[T]hough it was not part of the plan for disseminating notice, initial media coverage of the settlement agreement provided additional opportunities for class members to learn about the settlement.”).
2. Response by Class Members. Not a single class member has objected to the Settlement, and only one class member elected to opt-out. The correspondence received by this class member who opted-out does not express any displeasure about the merits, substance, or fairness of the Settlement. See Exhibit B of the Cozzi Decl. Indeed, it does not set forth any reason why this particular person wishes to be excluded. As of September 21, 2010, a total of 594 class members have filed timely claim forms, and 4 late claim forms have been filed.1314 The participation rate of the class members who received the 4,076 notices that were returned as undeliverable) was 14.5%.15 According to the claims administrator’s experience from work on other class action settlements, these figures are comparable to that seen in similar cases. See Cozzi Decl. at ¶ 12.
[14] The parties have agreed that these and any late claims received which are post marked by September 30, 2010 will be included, and any claims post marked after that date will not be.
[15] There were 6,551 notices in total sent to potential Class members. Of those, 2475 were returned as undeliverable.
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III. ARGUMENT The Third Circuit requires that before a class action settlement agreement is approved, the district court must find that the settlement is fair, reasonable and adequate under FED. R. CIV. P. 23(e). See Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975). The district court must also find that the class meets the requirements for certification set forth in FED. R. CIV. P. 23(a) and 23(b). See Boone, 668 F. Supp. 2d at 705. A district court’s determination of whether the Rule 23(a) and 23(b) requirements are met is subject to its discretion. See Sullivan v. DB Investments, Inc., No. 08-2784, 2010 U.S. App. LEXIS 14375, at *18 (3d Cir. Jul. 13, 2010) (citing In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 595 (3d Cir. 2009)). Where – as here – the Court has already preliminarily approved the settlement, “an initial presumption of fairness” is established.1416 In re Linerboard Antitrust Litig., 321 F. Supp. 2d 619, 628 (E.D.Pa. 2004) (DuBois, J.) (quoting In re Gen. Motors Corp., 55 F.3d at 768, 785 (3d Cir. 1995)). As set forth below, the Parties’ Settlement Agreement meets the requisite criteria for final approval. It should therefore be granted, the Settlement Class should be certified, and this case should be dismissed with prejudice. A. Certification of the Proposed Settlement Class is Appropriate to
Resolve All Strip-Search Claims Against Defendants. To certify a class under Rule 23, the Court must find that all of the requirements of Rule 23(a) are met, as well as at least one part of Rule 23(b). See
[16] On March 2, 2010, the Court in this case issued an order granting preliminary approval to the Settlement. See Docket Entry No. 61.
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Boone, 668 F. Supp. 2d at 705 (citing Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994)). The Settlement Class readily satisfy these requirements.17 It consists of thousands of individuals, hundreds of whom have elected to receive the monetary benefits of the Settlement. The claims of the class representatives and the settlement class are typical because they are based on the same challenges to the same conduct by the Defendants, and both the named plaintiffs and their counsel are adequate representatives. There are several factual and legal questions that are common to the Class, which predominate over any questions affecting only individual members. Finally, a class action is the superior method for fairly and efficiently adjudicating this controversy. Other courts that have addressed blanket strip search policies or practices have consistently recognized the propriety of certifying such cases as class actions, and granting approval to class action settlements. See e.g., Boone, 668 F. Supp. 2d at 708. See also, Florence v. Board of Chosen Freeholders, 05-3619, 2008 U.S. Dist. LEXIS 22152, at *48 (D.N.J., Mar. 20, 2008).
1. Numerosity Under Rule 23(a)(1). Rule 23(a)(1) requires that the Class be “so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). The numerosity requirement will generally be satisfied if the named plaintiff demonstrates that the potential
[17] Defendant agrees to certification of a class for settlement purposes only; if this settlement is not approved, Defendant retains all rights to challenge certification of a litigation class.
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number of Plaintiffs exceeds forty (40). See Stewart v. Abraham, 275 F.3d 220, 22627 (3d Cir. 2001).
The Class here consists of thousands of geographically dispersed Class members, hundreds of whom have submitted claim forms. Thus, numerosity is readily satisfied in this case. See, e.g., Boone, 668 F. Supp. 2d at 705 (numerosity met in strip search class action against City of Philadelphia involving thousands of class members).
2. Commonality Under Rule 23(a)(2). Rule 23(a)(2) requires that there be “questions of law or fact common to the Class.” FED. R. CIV. P. 23(a)(2). The commonality requirement is met if Plaintiffs’ grievances share a common question of law or of fact. See Baby Neal, 43 F.3d at 56. “It is well-established in the Third Circuit that commonality does not require all claims and facts among class members be identical, rather a single common issue of law or fact shared by the named plaintiffs and the prospective class will suffice.” Clarke v. Lane, 267 F.R.D. 180, 196 (E.D. Pa. 2010) (citations omitted). A party is entitled to certification where the Class claims arise “from a common nucleus of operative fact’ regardless of whether the underlying facts fluctuate over the Class period and vary as to individual claimants.” In re Asbestos Sch. Litig., 104 F.R.D. 422, 429 (E.D. Pa. 1984) (citations omitted). Applying these principles, it is clear that the commonality requirement of Rule 23(a)(2) is easily met here. The central issues posed by this litigation are whether the GEO-run Jails had a blanket strip-search policy and/or practice during
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the Class period, and whether such a practice or policy is constitutional. See Kurian, E.D. Pa. No. 07-CV-03482 at 5 (ECF No. 68) (finding commonality satisfied based on similar constitutional challenges to a prison’s strip search practices). The Plaintiffs both assert a common claim pursuant to 42 U.S.C. § 1983 for GEO’s alleged violation of the constitution. Given these common questions central to the litigation, Rule 23(a)(2)’s requirement for the existence of common questions of fact or law has been met here. See id. See also, Boone, 668 F. Supp. 2d at 706; Florence, 2008 U.S. Dist. LEXIS 22152, at *21.
3. Typicality Under Rule 23(a)(3). Rule 23(a)(3) requires that a representative plaintiff’s claims be “typical” of those of other Class members. The commonality and typicality requirements of Rule 23(a) “tend to merge.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). The requirement of typicality, along with the adequacy of representation requirement set forth in Rule 23(a)(4), are designed to assure that the interests of unnamed Class members will be protected adequately by the named Class representative. Id. The typicality requirement “is satisfied when each Class member’s claim arises from the same course of events, and each Class member makes similar legal arguments to prove the Defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997). Here, the claims of named Plaintiffs Penny Alison and Zoran Hocevar are typical of the claims of the Settlement Class. Their claims arise from the same course of events, and both would have to make the same arguments as the Class in
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challenging the constitutionality of Defendants’ strip search practices. As such, typicality as readily satisfied here. See Florence, 2008 U.S. Dist. LEXIS 22152, at *25.
4. Adequacy Under Rule 23(a)(4). The final requirement of Rule 23(a) is set forth in subsection 23(a)(4), which requires that “the representative parties will fairly and adequately protect the interests of the Class.” FED. R. CIV. P. 23(a)(4). The Third Circuit has consistently ruled that:
Adequate representation depends on two factors: (a) the Plaintiff’s attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the Plaintiff must not have interests antagonistic to those of the Class. Weiss v. York Hosp., 745 F.2d 786, 811 (3d Cir. 1984) (quoting Wetzel v.Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975)). These two components are designed to ensure that absentee Class members’ interests are fully and adequately pursued. The existence of the elements of adequate representation are presumed, and “the burden is on the Defendant to demonstrate that the representation will be inadequate.” Asbestos School Litigation, 104 F.R.D. at 430 (citing Lewis v. Curtis, 671 F.2d 779 (3d Cir. 1982)). Representative Plaintiffs and Class Counsel have fairly and adequately represented the Settlement Class here, especially judging by the excellent settlement achieved in this litigation. With respect to the issue of adequacy of counsel, the Class is represented by competent and experienced counsel who are
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experienced in civil rights and class action litigation, and who have invested time and resources into the prosecution of this action. See Kurian, E.D. Pa. No. 07-cv03482, at 6 (ECF No. 68) (describing class counsel in that case – many of whom are the same plaintiffs’ lawyers in this case – as “especially talented lawyers” who are “vastly experienced in class action litigation” and “are more than capable of representing the Class.”).
As to the second issue, there is nothing to suggest that the named Plaintiffs have interests antagonistic to those of the absent Class members. See Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006) (adequacy “assures that the named Plaintiffs’ claims are not antagonistic to the Class”). See also, Florence, 2008 U.S. Dist. LEXIS 22152, at *31. The named Plaintiffs sought to bring an end to allegedly illegal strip-searches at the Jails, and are committed to obtaining appropriate compensation from Defendants for themselves and for the members of the proposed Class. The named Plaintiffs have come forward to represent the Settlement Class under great personal pressure – being subject to an event that some consider humiliating and would be difficult to recall on a regular basis for litigation purposes. Adequacy is therefore met in this case.
5. The Requirements of Rule 23(b)(3) Are Met. The proposed Class also satisfies the requirements of Rule 23(b)(3) of the Federal Rules of Civil Procedure. Under this rule, a class action may be maintained if:
the court finds that the questions of law or fact common to the members of the Class predominate over any questions affecting only
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individual members, and that a Class action is superior to other available methods for the fair and efficient adjudication of the controversy. FED. R. CIV. P. 23(b)(3). The Rule 23(b)(3) analysis is commonly broken down into a “predominance” part and a “superiority” part. See Boone, 668 F. Supp. 2d at 707 (citing In re Ins. Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009)). As discussed below, both parts of the test are met here.
a. Predominance. “The Rule 23(b)(3) predominance inquiry tests whether proposed Classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U. S. at 623. Although Rule 23(b)(3) requires that common issues of law and fact predominate, it does not require that there be an absence of any individual issues. See In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 344 (E.D. Pa. 1976). The Court must find that “the group for which certification is sought seeks to remedy a common legal grievance.” Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339, 348-49 (N.D. Ill. 1978); Dietrich, 192 F.R.D. at 119 (in determining whether common issues of fact predominate, “a court’s inquiry is directed primarily toward whether the issue of liability is common to members of the Class”). Rule 23(b)(3) does not require that all questions of law or fact be common. See In re Telectronics Pacing Systems, 172 F.R.D. 271, 287-88 (S.D. Ohio 1997). Here, the proposed Settlement Classes’ claims involve one central question: was GEO’s alleged practice of strip-searching every pretrial detainee admitted to the Jails constitutional when conducted without regard to the crime charged or the
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circumstances of arrest? Proof of this issue would have been the undoubted focus of any trial,18 and would predominate over any of the Plaintiffs’ individual issues. See Florence, 2008 U.S. Dist. LEXIS 22152 at *36.19 As a result, “[n]umerous courts have found Rule 23(b)’s predominance requirement satisfied in actions similar to the instant matter, reasoning that the issues respecting the existance and constitutionality of strip searching policies or practices are common to the class and subject to generalized proof.” Kurian, E.D. Pa. No. 07-CV-03482 at 6 (ECF No. 68) (citations omitted). General evidence of the Defendants’ policy and its blanket application to Class members will be required to prove their claims. See Boone, 668 F. Supp. 2d at 708. Accordingly, predominance is met.
b. Superiority. The relevant inquiry for the superiority determination is whether a class action, rather than individual litigation, is the best method for achieving a fair and efficient adjudication. See Boone, 668 F. Supp. 2d at 708 (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001)). FED. R. CIV. P. 23(b)(3) sets forth a non-exhaustive list of factors to aid the Court in determining whether a class action is the superior method of adjudication:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of
[18] Defendant agrees to certification of a class for settlement purposes only; if this settlement is not approved, Defendant retains all rights to challenge certification of a litigation class.
[19] The Third Circuit recently ruled that this single question has a single answer— an unqualified yes, GEO’s practices (to the extent any blanket strip search practice existed) were, in fact, constitutional.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 34 of 48
any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.20
Given the nature of this action and the fact that a substantial proportion of
the Class membership is comprised of economically disenfranchised individuals, a
class action is also the superior method by which to adjudicate claims of individual
Class members. See Florence, 2008 U.S. Dist. LEXIS 22152 at *41 (superiority
found in strip search class action). In the absence of this class action settlement,
Class members may not have even been aware that the Defendants allegedly
violated their constitutional rights, much less actually pursue those claims. See In re Nassau County Strip Search Cases, 461 F.3d 219, 229 (2d Cir. 2006). Indeed,
poor and marginalized Class members are unlikely to be able to litigate their cases
individually, particularly given the relatively small amounts of their potential
individual recovery in such a case. See Mack, 191 F.R.D. at 25; D’Alauro v. GC Services Ltd, 168 F.R.D. 451, 458 (E.D.N.Y. 1996). As Judge McLaughlin explained
in finding that superiority was met with respect to the class action settlement of the
Philadelphia strip search case,
[a] class action in this case saves the time, effort and expense of litigating the claims of as many as 37,000 class members individually and guarantees uniform treatment of individual class members within
[20] Courts have recognized that, in the context of certifying a settlement-only class, the “(D)” factor in Fed. R. Civ. P. 23(b)(3)(D) is not relevant. See Boone, 2009 U.S. Dist. LEXIS 103277, at *25. See also, In re Insurance Brokerage Antitrust Litig., 579 F.3d at 257 (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.”) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)).
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 35 of 48
their respective subclasses… Because it is generally desirable to concentrate many smaller claims into a single forum, a class action is appropriate in this case. A class action is the superior method for adjudicating this particular matter. See Boone, 668 F. Supp. 2d at 708. Accord, Kurian, E.D. Pa. 07-cv-03482 at 7-8 (ECF No. 68) (superiority satisfied in the context of a strip search class settlement). Similarly, the superiority requirement is met here. B. The Settlement Agreement Should Be Approved By the Court. The Parties also respectfully request that the Court grant final approval to the Settlement Agreement. “Compromises of disputed claims are favored by the courts.” Williams v. First Nat’l Bank, 216 U.S. 582, 595 (1910); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 317 (3d Cir. 1998) (“Prudential II”). The Settlement Agreement spares the litigants the uncertainty, delay and expense of a trial, while simultaneously reducing the burden on judicial resources. The Court has broad discretion in deciding whether to approve a settlement. See Kurian, E.D. Pa. 07-cv-03482 at at 8 (ECF No. 68) (citing Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975)). Rule 23(e) of the Federal Rules of Civil Procedure provides that a district court must determine whether to grant approval to any settlement of a class action. FED. R. CIV. P. 23(e). In a class action, the “court plays the important role of protector of the [absent members’] interests, in a sort of fiduciary capacity.” In re Gen. Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3rd Cir. 1995) (“GM Trucks”). As discussed below, the Court should grant final approval to the settlement because Class members received notice in the best
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 36 of 48
manner practicable under the circumstances, and because the substance of the Settlement is more than fair, reasonable and adequate, especially in light of the Third Circuit’s ruling in Florence means that GEO’s practice of strip searching all pretrial detainees entering the jail was constitutional.
1. The Notice Satisfied Rule 23(c)(2)(B). Members of a class that is settled pursuant to FED. R. CIV. P. 23(b)(3) must be provided with “the best notice that is practicable under the circumstances.” FED. R. CIV. P. 23(c)(2)(B). This includes individual notice to all potential class members that can be identified through reasonable effort. Boone, 668 F. Supp. 2d at 709. The substance of the notice must contain, in clear language, a description of the nature of the action, settlement class(es), the claims, issues and defenses, the class member’s right to enter an appearance by an attorney and to be excluded from the class, the time and manner of requesting exclusion, and the binding effect of the settlement on class members. Id. (citing FED. R. CIV. P. 23(c)(2)(B)). In this case, the notice of the settlement that was provided satisfied FED. R. CIV. P. 23(c)(2)(B). The notice, which was preliminarily approved by the Court before its dissemination, contained all of the criteria required under Rule 23(c)(2)(B). It was mailed to an over-inclusive list of Settlement Class members for whom mailing addresses were available, and then re-mailed to those who had undeliverable addresses (and for whom a forwarding address could be obtained). See §(I)(d), supra. The notice was posted at the Jails GEO currently operates and at regional probation and parole offices. The notice was publicized via frequent radio
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 37 of 48
advertisements. And the notice was published on a website dedicated to the settlement, and was also picked up be several news sources. As such, the notice readily meets the requirements of Rule 23(c)(2)(B). See, e.g., Boone, 668 F. Supp. 2d at 709.
2. The Settlement Satisfies the Girsh Factors. The substance of the settlement should also be approved. A class settlement should be approved when the court finds it is fair, reasonable and adequate, and is in the best interest of class members. See Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 470 (E.D. Pa. 2000). In Girsh, the Third Circuit adopted the following ninefactor test for district courts to use in determining whether a class action settlement is fair, reasonable and adequate:
(1) the complexity, expense and likely duration of the litigation…; (2) the reaction of the Class to the Settlement…; (3) the stage of the proceedings and the amount of discovery completed…; (4) the risks of establishing liability…’ (5) the risks of establishing damages…(6) the risks of maintaining the Class action through trial…; (7) the ability of the Defendants to withstand a greater judgment; (8) the range of reasonableness of the Settlement fund in light of the best possible recovery…; (9) the range of reasonableness of the Settlement fund to a possible recovery in light of all the attendant risks of litigation. Girsh, 521 F.2d at 157.21 As set forth below, the Settlement satisfies the Girsh factors.
[21] This nine factor test from Girsh was recently re-affirmed and used by the Third Circuit in In re Insurance Brokerage Antitrust Litig., 579 F.3d at 258.
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a. The Complexity, Expenses and Likely Duration of the Litigation Support Final Approval.
This Girsh factor is intended to capture ‘the probable costs, in both time and money, of continued litigation.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (citations omitted). In this case, the litigation began in January of 2008. Class Counsel have reviewed over a thousand of pages of documents, served discovery requests, interviewed witnesses, and successfully opposed GEO’s motion for judgment on the pleadings. In all, Plaintiffs’ counsel contends that they have expended in excess of 1,188 hours on this case. Further, Class Counsel have collectively incurred out of pocket costs of $8,466.51. Plaintiffs have not compensated for any of their work on the case, nor have they been reimbursed for any of these expenses.
If Plaintiffs were to continue to trial, the trial would be complex and expensive. Moreover, the outcome of trial would be uncertain. To prosecute this as a class action, Plaintiffs would ultimately have to prove that the Defendant’s stripsearch policy was unconstitutional. Clearly, this is more difficult—indeed, impossible—in light of the recent Precedential Third Circuit opinion in Florence.
Moreover, even if Plaintiffs were successful on the merits of their claims (and that holding was not disturbed by the Third Circuit and/or Supreme Court), Defendants may argue that Class Members would still be required to prove
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 39 of 48
damages individually, or in group mini-trials.22 This may have led to unsuccessful results with respect to class certification.
In sum, Class Counsel in this case weighed the risks of pursuing further litigation against the benefit of receiving the proposed settlement in this case, and concluded it was in the Class members’ best interest to resolve this matter at this juncture. Similarly, the Defendants weighed their risks in proceeding to trial, and determined that the settlement was in its best interests as well. In light of the current legal landscape, the Settlement is therefore more than fair, reasonable and adequate. See Boone, 668 F. Supp. 2d at 712-713.
b. The Reaction of the Class Justifies Final Approval. Under the second Girsh factor, the reaction of the Class is relevant to assessing whether the settlement should be approved. See Prudential II, 148 F.3d at 318. This factor is “attempts to gauge whether members of the class support the settlement…” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (citations omitted). In this case, the low number of exclusions (one) and objection requests (zero) create a strong presumption in favor of approving the Settlement. See In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 629 (“No class members objected to either settlement. This fact strongly militates a finding that the settlement is fair and reasonable.”); Boone v. City of Phila., 668 F. Supp. 2d 693, 712 (E.D. Pa. 2009)
[22] There is recent authority where courts have refused to certify a class in a strip search class action. See Rattray v. Woodbury County, No. 07-4032, 2008 U.S. Dist. LEXIS 66922 (N.D. Iowa Sept. 2, 2008), aff’d., No. 09-2314, 2010 U.S. App. LEXIS 16207 (8th Cir. Aug. 5, 2010).
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 40 of 48
(“The fact that so few potential class members objected to or opted out of the settlement supports a finding of general acceptance of the settlement in the class.”).23 See also, Austin v. Pa. Dept. of Corrections, 876 F. Supp. 1437, 1458 (E.D.Pa. 1995) (approving class action settlement of civil rights claims brought by prisoners, notwithstanding the receipt of 457 written objections by class members) (DuBois, J.). This is particularly true where, as here, the settlement notification mailed to Class members for whom addresses were ascertainable (and the notice posted in the prisons and parole/probation offices and on the Settlement Website) contained clear instructions for the procedures to opt-out from or object to the Settlement.
In response to the Court-approved notice, nearly 600 Class members have sent in claim forms to the Claims Administrator. Id. Depending on how this participation is measured, this represents a claims rate as high as 14.5% whereby hundreds of Class members will be entitled to the maximum payment under the Settlement ($400.00 each). This positive response rate, coupled with the fact that there were no objections and only one opt-out, supports a finding that this Girsh factor is met. Indeed, courts have granted final approval to class action settlements with comparable participation rates. See Boone, 668 F. Supp. 2d at 702-03 (approving strip search class action settlement with 15% participation); (McLaughlin, J.); Kurian, E.D. Pa. No. 07-cv-03482 (ECF No. 68) (approving
[23] The fact that the Settlement Agreement allows dissatisfied class members to opt-out of the settlement further supports a finding, in and of itself, that the Settlement is fair and reasonable. See In re Insurance Brokerage Antitrust Litig., 579 F.3d at 259, n.17. See also, id. at 274, n.29.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 41 of 48
settlement of strip search class action with 10.8% participation) (Diamond, J.); Van Horn v. Nationwide Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 42357 (N.D. Ohio Apr. 30, 2010) (“It is not unusual for only 10 or 15% of the class members to bother filing claims.”) (quoting In re TJX Companies Retail Sec. Breach Litig., 584 F. Supp. 2d 395, 404 (D. Mass. 2008)); Hughes v. Microsoft Corp., No. C98-1646C, 2001 U.S. Dist. LEXIS 5976, at *23-24 (W.D. Wash. Mar. 21, 2001) (approving settlement where approximately 7.4% of the potential class members that received a mailed notice “wrote to class counsel wanting the benefits of the settlement.”); Weber v. Government Employees Insurance Co., 262 F.R.D. 431, 440-41 (D.N.J. 2009) (granting approval to a settlement with a 15.1% claims rate reached after two rounds of notice); McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006) (approving strip search settlement with 8.5% participation rate). See also, Zimmer Paper Products Inc. v. Berger & Montague, P.C., 758 F.2d 86, 92-93 (3d Cir. 1985) (affirming district court’s dismissal of a challenge by a class member to the notice associated with a court-approved settlement that had a 12% response rate). Furthermore, the Settlement Administrator has affirmed that the response rate in this case is comparable to that obtained in similar strip search class action settlements. See Cozzi Decl. at ¶ 12.
c. The Stage of the Proceeding and Amount of Discovery Favor Final Approval.
It has been generally recognized by the Third Circuit that settlements that are made after discovery reflect the true value of the claim. See Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993). The parties in this case exchanged
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 42 of 48
discovery requests and disclosures, and reviewed thousands of pages of documents regarding the admittance of pretrial detainees at the Jails. This weighs heavily in favor of approving the Settlement as fair, reasonable and adequate. Boone, 2009 U.S. Dist. LEXIS 103277, at *38 (“The discovery and other investigations that the parties have undertaken render them sufficiently informed to make a determination about the fairness of a settlement.”).
Moreover, as discussed above, the Settlement was a product of extensive negotiations between the parties, including a mediation before Retired Judge Melinson. “A presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 630 (quoting Hanrahan v. Britt, 174 F.R.D. 356, 366 (E.D. Pa. 1997)). That presumption should likewise apply here.
d. The Risks of Establishing Liability and Damages Weigh in Favor of Approving Settlement.
The risks of establishing liability and damages are the fourth and fifth factors to be weighed when evaluating a Settlement. See In Re Automotive Refinishing Paint Antitrust Litig., 617 F. Supp. 2d at 343. “Although the Court must weigh the relative strengths and weaknesses of each side to determine the risks of establishing liability, it should ‘not decide the merits of the case or resolve unsettled legal questions.’” Austin v. Pennsylvania Dep’t of Corrections, 876 F. Supp. at 1471 (quoting Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981)).
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 43 of 48
This factor in and of itself weighs heavily in favor of this Settlement being approved. Clearly, the recent precedential opinion issued by the Third Circuit in Florence illustrates the risks associated with establishing liability and damages in this case. Indeed, given the current state of the law in this Circuit, class members would be entitled to no recovery as a matter of law were this case to be filed or litigated today.
In addition, this putative class action had inherent risks merely by virtue that the GEO represented by the experienced and highly-skilled defense counsel at Reed Smith LLP. If this case were to proceed to trial, Plaintiffs would have faced a number of challenges in order to succeed before a jury. Specifically, Defendants may have argued that Plaintiffs would have been required to try the individual actions for damages, which may have led to unsuccessful results. Further, there is a real likelihood that Plaintiffs may have undergone years of litigation in the appellate courts. See In Re Michael Milken & Associates Securities Litigation, 150 F.R.D. 57, 65 (S.D.N.Y. 1993). And even before Florence was resolved by the Third Circuit, two en banc circuit court decisions had found that blanket strip-searches are not unconstitutional regardless whether reasonable suspicion exists. See § (II)(B)(2)(a), supra. See Boone, 668 F. Supp. 2d at 713 (citing to “the risk that the class members might not recover at all…”). Thus, based on the above risks, Plaintiffs obtained a more than favorable result for the Class.
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 44 of 48
e. The Risks of Maintaining a Class Action Through Trial Weigh in Favor of Approving this Settlement.
The risks of maintaining a Class through trial support approval of the Settlement. See Prudential II, 148 F.3d at 321. In light of the fact that the Third Circuit has found that a district court always possesses the authority to decertify an action, this factor in and of itself weighs in favor of settlement. “Consistent with this reality, we are satisfied that the inherent difficulties of bringing a Class action to trial weighs in favor of approving the Settlements.” In Re Automotive Refinishing Paint Antitrust Litigation, 617 F.Supp. 2d at 344. As discussed above, the risk of establishing any liability in light of Florence supports this factor. This Court should find that this factor weighs in favor of approving the Settlement.
f. The Ability of Defendants to Withstand Greater Judgment.
Under the seventh Girsh factor, it must be considered whether the defendant could withstand an “amount significantly greater than the Settlement.” In re Cendant Corp. Litig., 264 F.3d 201, 240 (3d Cir. 2001) (emphasis supplied). Due to the realities of the current macro-economic environment, this factor weighs heavily in favor of finding that a settlement valued at up to nearly $3 million is fair, reasonable and adequate. See Boone, 668 F. Supp. 2d at 712 (taking into consideration the current financial situation of the city-defendant in assessing fairness of settlement). And even if it were theoretically possible that GEO could withstand a “significantly” larger judgment after a trial, this Girsh factor should be balanced against “the risk that the plaintiffs would not be able to achieve any
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 45 of 48
greater recovery at trial.” In re Linerboard Antitrust Litig., 321 F. Supp. 2d at 632 (citing Lazy Oil Co. v. Witco Corp., 95 F. Supp. 2d 290, 318 (W.D. Pa. 1997)). Indeed, any further litigation on these claims at this time is entirely doomed by the Florence opinion, which held strip searches similar to those employed here are facially legal and constitutional. When viewed through this spectrum under the circumstances here, it is readily apparent that this Girsh factor is satisfied.
g. The Reasonableness of the Settlement in Light of the Best Possible Recovery Weighs in Favor of Approving this Settlement.
The final two Girsh factors require the court to determine whether Plaintiffs settled for appropriate value in light of the Class members’ damages. See In Re Automotive Refinishing Paint Antitrust Litigation, 617 F. Supp. 2d at 344. This matter settled for $2.99 million, and each Class member that timely submitted a claim form will receive $400. This is a fair value for the settlement, and is comparable to settlement awards in other strip search cases—the large majority of which were reached prior to the recent split among the circuits. See McBean v. City of New York, 233 F.R.D. 377, 388 (S.D.N.Y. 2006) (awarding either $750 or $1,000 per claimant, depending on the number of times the class member was searched); Kurian, E.D. Pa. No. 07-cv-03482 at 13 (ECF No. 68) (describing the allocation of payments ranging from $50 to $900 to class members in a strip search class action settlement as “fair, reasonable, and adequate.”). As is demonstrated by the above analysis of the Girsh factors, Plaintiffs’ and Defendant’s Settlement is clearly an
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 46 of 48
excellent result and is fair, reasonable and adequate under Girsh. See Boone, 668 F. Supp. 2d at 713.
h. The Recommendation of Class Counsel. Finally, in addition to the Girsh factors discussed above, “several courts have accorded significant weight to the view of experienced counsel who have engaged in arm’s-length negotiations.” Austin, 876 F. Supp. at 1457 (citing In re Unisys Corp. Retiree Medical Benefits ERISA Litig., MDL No. 969, 1994 U.S. Dist. LEXIS 17877 (E.D. Pa. Nov. 3, 1994)). The recommendation of Class counsel in this case that the Settlement be approved should, accordingly, be considered by the Court. See id. at 1472-73 (citing to the experience of Mr. Rudovsky and others, and finding that their recommendation that the settlement be approved “is entitled to great weight.”).
IV. CONCLUSION For the foregoing reasons, Plaintiffs and Defendant respectfully request that this Court enter an Order that: (1) provides final approval to the Settlement as fair, reasonable and adequate, and (2) certifies the Class action with respect to the claims against Defendant pursuant to FED. R. CIV. P. 23(a) and FED. R. CIV. P. 23(b)(3) for the purpose of effectuating a class action settlement of the claims against the Defendants.
/ / /
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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 47 of 48

Dated: September 27, 2010

Respectfully submitted,

FOR PLAINTIFFS AND THE CLASS:

FOR DEFENDANT:

/s/ David Rudovsky David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING
& FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400

/s/ Carolyn P. Short Carolyn P. Short Shannon E. McClure REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 215.851.8100

Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500

Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN
& BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 215.592.1500

Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610.431.9505

Jennifer R. Clarke THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 S. Ninth Street, Suite 700 Philadelphia, PA 19107

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Case 2:08-cv-00467-JD Document 66 Filed 09/27/10 Page 48 of 48
CERTIFICATE OF SERVICE I, Shannon E. McClure certify that on this 27th day of September, 2010, I caused the foregoing MOTION AND MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ AND DEFENDANT’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION, and related motion, proposed order, and exhibits thereto, to be filed electronically using the Court’s CM/ECF system, and thereby served it upon all registered ECF users in this case.
By: /s/Shannon E. McClure Shannon E. McClure

 
 10/20/2010 18C:0a8se 2:02815-c85v1-014024067-JD Document 7R4EED FSiMleIdTH102/622S/10 Page 1 of 2 PAGE 03/04

IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 


PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1-100, in their official and individual capacities,
Defendants.

2:08-cv-00467-JD Judge Jan E. Dubois
CLASS ACTION

[III r; 175] ORDER GRANTING FINAL APPROVAL
TO CLASS ACTION SETTLEMENT AND JUDGMENT AND NOW, upon consideration of the Plaintiffs' Counsels' Motion Seeking Fees And Expenses, And Incentive Awards To The Named Plaintiffs, and The GEO Group's response thereto, and the Court having previously approved Plaintiffs' counsel's expenses and the awards to the named plaintiffs, and the Court being advised that the parties have agreed that Class Counsel will receive $510,000 in attorneys' fees, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART, and the Court awards Class Counsel $510,000 in attorneys' fees from the Settlement Fund.

REED SMITH 26 S

PAGE €l4/€l4

Case 2:08-cv-00467-JD Document 74 Filed 10/22/10 Page 2 of 2

IT IS SO ORDERED.
Dated: It) I;).' 1'0

e Honorable Jan E. Dubois United States District Judge

. ~.

 
 Casfreo~2-C:H0i8MI-CclvES-0I0'4I6~E7-liJSDllPDocument 26

6F10il-e64d1-101575/30/08

Pa'-g5e041

oPf

0503/006,

f-
.........

'

7!
"'1;.'

Coo ...

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLV:n..L'u'-t'.
!

PENNY ALLISON and ZORAN

HOCEVAR, individually and

I

on behalf of a class of others

CLASS ACTION

similarly situated,

Plaintiffs,

v.

No. 2=OS'cv'00467-JD

THE GEO GROL"P, INC, in its official and individual capacities, and JOHN DOES 1- 100, in their official and individual capacities,
Defendants,

JURYTRlAL DEMANDED

FILED

ORDER AND STIPULATION
OONCERNING DEFENDANT THE GEO
GROUP, INO:S MOTION TO DISMISS CERTAIN
COUNTS OF PLAINTIFFS' AMENDED COMPLAINT

'l"'l;~'. KUNZ, Clerk ~"BI~_Dep. C/8Ilc

WHEREAS, this action was co=enced on January 30, 2008; WHEREAS. Plaintiffs filed an Amended Complaint on March 28 (the "Amended Complaint") (Docket Entry No. 16); WHEREAS, the Parties stipulated and agreed that Defendant The GEO Group Ine.'e time to answer or otherwiee reepond to the Amended
Complaint was up to and including May 2, 200S (see Docket Entry No. 21);
WHEREAS, on May 2, Defendant filed a Motion and accompanying Memorandum of Law requesting that the Court diBmiss Counts IV (Battery), VI (Intentional Infliction of Emotional Distress), and VII (Negligent Infliction

F'c"-CHIMIC,ES L - KE, S lP Case 2:08-cv-00467-JD Document 26

6F1iDle-d640H5m/30/08

Pag-5e042 oPf 504/006

F-1 \

of Emotional Distress) of the Amsnded Oomplaint only (the ''Motion to Dismiss") (Docket Entry No, 24);
WHEREAS. COUD.JlsI for ths Parties have conferred, and have ag:Ieed
that Plaintiffs will Dot oppose ths Motion to Dismiss;
WHEREAS, counsel for ths Partiss have aleo conferred and agreed
that, provided that the Court approves this Proposed Stipulation and Order, Defendant The GEO Group, Inc. shall file an Answer directed to the remaining allegations oIthe Amended Complaint within twenty (20) days of the date ofthia Gourt's Order:

IT lB. this

.~.....-.'k~-

day of m 4'c

,2008,

ORDERED that Defendant The GEO Group, Inc.'s unopposed Motion to
vn Dismiss. directed to Counts IV, VI, and of the Amended Complaint ill vn GRANTED and Counts IV, VI, and of the Amended Complaint are

DISMISSED from this action WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant The GEO Group, Ino.

shall, within twenty (20) days of the enny of this Order, file an Answer

directed to thoss paragraphs of the Amended Complaint that !lIe not
vn contained in Counts IV, VI, and thereof. Defendants need not Answer or

otherwise respond to ths allegations containsd in p!lIagraphs 77-80 and 86-96

of tha Amended Complaint;

.2.

F'o -( ~IClES' - KEl. S l P Case 2:08-cv-00467-JD Document 26

Filed 05/30/08 Pa-g·,e043 oPf 505/006

'·171

IT IS :FURTHER ORDERED that the Amended Complaint Bball. subject to the instant Order, remain the operative complaint in thie action until further Order of the Court or by subsequent agreement ofilie P1llties pursuant to FliID. R. CIV. P. 15;
IT IS FURTHER ORDERED that the Court's Scheduling Order of Apri124 (Docket Entry No. 22) remains in full effect, and is 1!D affected by the instant Order.
IT IS SO ORDERED.

H O L E JAN E. DUBOIS D STATES DISTRICT JUDGE

ENTERED
CLERK OF COURT

.3-

:O-~.~-1~08 09:01

CaFsroe -2CH:0IM8IC-c.EvS-0, 0-4K6E7lL-JSDllP Document 26

6F10il-e64dH01575/30/08

PaTg-5e044

oPf

0506/006 F-1 .~

..1............

-D-a"':'Vl"""R-"U::"'d-OV"';Bky~~(P:l.lA~.u=-:~/;-6JPJ
Jonathan H. Feinberg KAIRYS, RUDOVSKY,
MESSING & FEINBERG LLP The Cast Ixon Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 Office: 215-925-4400 Fax: 215'925'5365 E .mail: drudoveky@krlawphila.com.
Joseph G. Sauder (PAID 1\0.82467) BeI\iamiu F. Johns (PA ill No. 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancastex Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E.mail: JosephSauder@chimicles.com

Caxolyn . SaraA. Beg} Shannon E. McClure Mixiam S. Edelstein REED SMITH LLP 2600 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301
ATTORNEYS FOR DEFENDANT THE GEO GROUP,INC.

CbriBtopher G. Hayee (PA ID No. 5726B) LAW OFFICE OF CHRISTOPHER G. HAYES 225 South Church Street West Cheeter. PA 193B2 610'431-9605 (Phone) 610-431-1269 (fax) ElectroniJ:: Mail: chris@chaYBIllaw.com.

Daniel C. Levin (PAID No. 80013) Charlee SchaHar (PA ill No. 76259) LEVIN, FISHBEIN, SEDRAN & BERMfu~ 510 Walnut Street, Ste. 500 Philade~hia. PA 19106 Telephone: 21Hi92-1600 Telecopier: 215'692-4663 Electronic Mail: dlevin@lfsblaw.com.

ATTORNEYS FOR PLAINTIFFS AND TIm PROPOSED CLASS

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IN TOE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PE 'SYLVMilA
V

DATE:

May 30, 2008

TO:

BenjlUI1lI1 F. Jolms, Esquire 61<l-649-3633

Carol)" P. Short, Esqu"" 215-851·1420

Christopher G. Hal'"'. EsqUl~ 610-431 1269

Daniel C. Levin, Esquin: 215·592-4663

David Rudovsky. EsqUl~ 215·925·5365

Joseph G. Sauders, Esquire 61<l-649-3633

Miriam S. Edelstein, Esquire 215-851·1420

San A. Begley, EsqUlfC 215-851·1420

FROM: PboDeNo.: FuNo.:

Andrew 1. Follmer, Deputy Clerk to Honorable Jan E. DuBois 267·299·7339 215·580·2141

Message:

Tolal Number of Pa:el (lacllldiDa Co"er Sb«.t):

xx

 
 Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 1 of 22
EXHIBITS TO MEMORANDUM OF LAW 1. Settlement Agreement, with following attached Exhibits:
A. Proposed Claim Form B. Proposed Class Notice: Summary Notice (for mailing and posting),
Longer Mailed Notice C. Proposed Order Granting Final Approval of Class Action Settlement and
Judgment D. Proposed Order Preliminarily Approving Settlement E. Gilardi & Co. LLC Notice Plan F. Agreed upon text for radio advertisements G. Injunction Notice 2. Current applicable strip search policies 3. Sample QCP audit report 4. Declaration of Alan Vasquez
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 2 of 22
Exhibit 1

Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 3 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNY ALLISON and ZORAN HOCEVAR, individually and on behalf ofa class of others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC, in its official and individual capacities, and JOHN DOES 1-100, in their official and individual capacities,
Defendants.

2:08-cv-00467-JD Judge Jan E. DuBois

AMENDED SETTLEMENT AGREEMENT
Plaintiffs, by and through their counsel, and Defendant The GEO Group ("GEO" or "Defendant"), by and through its counsel, hereby enter into this Amended Settlement Agreement providing, subject to the approval of the Court, for Settlement of the claims herein described against GEO;
WHEREAS, Plaintiffs filed the above-captioned class action lawsuit ("Litigation") against the Defendant The GED Group, Inc. and John Does 1-100, alleging that Defendants had violated Plaintiffs' constitutional rights under color of state law by illegally strip searching them in the absence of reasonable suspicion and others similarly situated upon entry into the Jails (as defined herein) after being charged with minor offenses;
WHEREAS, GEO, subsequent to the filing of (and as a result of) this action, immediately took substantial remedial steps to address the claims raised in this Litigation on or about January 30, including, but not limited to:
ensuring that all Jails (defined herein) complete a checklist or log documenting the basis for any strip search of new commitments;
ensuring that no person detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion, was strip searched upon intake at the Jails; and
amending its Quality Control Plan ("QCP") internal auditing protocol to ensure compliance with the reasonable suspicion strip search policy.

Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 4 of 22
WHEREAS, GED has denied and continues to deny Plaintiffs' claims, and GED denies any wrongdoing or liability of any kind to Plaintiffs or to any members of the Class (as defined herein);
WHEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation of the facts and law relating to the matters in this Litigation and that such examination included documentary discovery in the course of the Litigation;
WHEREAS, GED has concluded that Settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to alleged conduct involved in this Litigation;
WHEREAS, Plaintiffs and Class Counsel 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 GED, as well as all employees of GED who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement;
WHEREAS, substantial, adversarial settlement negotiations have taken place between the Parties, including mediation conducted by former United States Magistrate Judge James K. Melinson, 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 GED and Plaintiffs Penny Allison and Zoran Hocevar individually and on behalf of a class for purposes of settlement (the "Class") of similarly situated persons defined .as:
All persons who were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion that the . inmate was carrying or concealing contraband, but were strip searched upon their admission into one or more of the Jails pursuant to Defendants' then-existing strip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. The Class Period is from January 30,2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center, and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 5 of 22
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa.
A. Claim Form. "Claim Form" shall mean a form in substantially the same form as that attached hereto as Exhibit A.
B. Claims Period. "Claims Period" shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date until the date 120 days thereafter, including weekends and holidays, provided that ifthe last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
C. Class Counsel. "Class Counsel" shall mean: Joseph G. Sauder and Benjamin F.
Johns ofChimicles & Tikellis LLP, One Haverford Center, 361 W. Lancaster Ave., Haverford, PA 19041.
D. Class Members. "Class Members" refers to all persons who, during the Class Period, were placed into the custody of one or more of the Jails after being detained for misdemeanors, summary offenses, or other crimes that did not involve the possession or distribution of drugs, possession of weapons, crimes of violence, or felonies, who had no history of such charges, and did not behave in a manner at intake that would give intake officers reasonable suspicion justifying a strip search,but were strip searched upon their admission into one or more of the Jails pursuant to Defendants' then~existingstrip search policy. Excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
E. Class Notice. "Class Notice" shall mean the Court-approved form of notice for mailing purposes in substantially the same form as Exhibit B.
F. Class Period. "Class Period" refers to the period between January 30, 2006 to January 30, 2008 for George W. Hill Correctional Facility, Frio County Detention Center, Dickens County Detention Center, Tri-County Detention Center,and Newton County Correctional Center, and from January 30, 2005 to January 30, 2008 for Guadalupe County Correctional Facility.
G. Class Representatives: "Class Representatives" shall mean Plaintiffs Penny Allison and Zoran Hocevar.
H. Class Settlement. "Class Settlement" shall mean the terms provided in this Settlement Agreement.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 6 of 22
I. Court. "Court" shall mean the United States District Court for the Eastern District of Pennsylvania, The Honorable Jan E. DuBois presiding, or his duly appointed or designated successor.
J. Defendant. "Defendant" shall mean the GEO Group, Inc., and shall include all employees of GEO who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
K. Defendant's Counsel. "Defendant's Counsel" shall mean Carolyn P. Short, Esq., Reed Smith LLP, 2500 One Liberty Place, 1650 Market Street, Philadelphia, PA 19103.
L. Distribution Amount. "Distribution Amount" shall mean the amount available from the Settlement Fund after payment of the costs of Class Notice and administration of the Settlement, attorneys' fees and expenses, and incentive awards to Class Representatives.
M. Effective Date. "Effective Date" shall mean thirty (30) days from the date on which the Settlement has been finally approved by the Court, and/or the date on which any appeals from final approval are resolved, whichever is later.
N. 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.
O. Final Judgment. "Final Judgment" shall mean that Court order that finally certifies the Class, approves this Settlement Agreement, approves payment of attorneys' fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement, in substantially the same form as Exhibit C.
P. Initial Contribution. GEO will make available an amount from the Settlement Fund, not to exceed the sum of $500,000.00 to be used by the Settlement Administrator to cover the costs of Notice and administration of the Settlement. Any unused portion of the $500,000.00 by the Settlement Administrator will revert to GEO.
Q. Injunction Notice. The Notice attached hereto as Exhibit G, which advises of the Injunction.
R. Jails. George W. Hill Correctional Facility; Guadalupe County Correctional Facility; Frio County Detention Center; Dickens County Detention Center; Tri-County Detention Center; and Newton County Correctional Center.
S. Litigation. "Litigation" shall mean the above-captioned lawsuit pending in the United States District Court for the Eastern District of Pennsylvania as No. 08-00467.
T. Mediator. The "Mediator" shall mean The Honorable James R. Melinson, former United States Magistrate Judge of the United States District Court for the Eastern District of Pennsylvania.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 7 of 22
U. 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.
V. Notice Date. ''Notice Date" shall mean the date upon which Class Notice is mailed in accordance with the terms herein.
W. Objection Date. "Objection Date" shall mean the date agreed upon by the Parties or otherwise ordered by the Court by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument.
x. Opt-Out Deadline. "Opt-Out Deadline" shall mean the date agreed upon by the
Parties or otherwise ordered by the Court by which any Settlement Class Members who do not wish to be included in the Class and participate in the Settlement must complete the acts necessary to properly effect such election to opt out.
Y. 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.
Z. Opt-Out Notice. "Opt-Out Notice" or "Opt-Out" shall mean a Request for Exclusion.
AA. Parties. "Parties" shall mean the Plaintiffs and Defendant.
BB. Plaintiffs. "Plaintiffs" shall mean Penny Allison and Zoran Hocevar.
CC. Preliminary Approval Order. "Preliminary Approval Order" shall mean the Order of the Court preliminarily approving this Settlement Agreement .and conditionally certifying a provisional Class, in substantially the same form as Exhibit D.
DD. OCP. QCP shall mean Defendant's Quality Control Plan, an intemalaudit protocol.
EE. Release. "Release" shall mean the release described in Section VII herein.
FF. Released Claims. "Released Claims" shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein.
GG. 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.
HH. Request for Exclusion. "Request for Exclusion" shall mean any request by any Settlement Class Member for exclusion from the Class in compliance with Section V herein.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 8 of 22
II. Second Contribution. GEO will make available an amount from the Settlement Fund $1,000,000.00, by check or wire transfer, into the Settlement Fund. Any unused portion of the .$1,000,000.00 will revert to GEO.
JJ. Settlement. "Settlement" shall mean the agreement by the Plaintiffs and Defendant to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement.
KK.. Settlement Administrator. "Settlement Administrator" shall mean the qualified party selected by the Parties and designated in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiffs nor the Defendant shall have any responsibility for any acts or omissions of the Settlement Administrator. The Parties have agreed to select Gilardi & Co. LLC 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.
NN. Settlement Fund. "Settlement Fund" shall rnean a fund or funds, governed by terms to be agreed to between Class Counsel and Defendant's Counsel which shall be earmarked specifically for this case and remain in GEO's operating expenses until such time as to be utilized to administer the monetary requirements of the Settlement. Defendant shall provide documentation verifying that the Settlement Amount is available, has been earmarked for the sole purpose of this case, and will not be utilized for any other payments or purposes.
00. Settlement Amount. "Settlement Amount" shall mean the amount of Two Million Nine Hundred and Ninety-Nine Thousand Dollars ($2,999,000.00) to be paid by or on behalf of the Defendant.
PP. Settlement Website. "Settlement Website" means a website established by the Website Administrator to provide information about the Settlement with a World Wide Web address ofwww.multistatestripsearchsettlement.com or, if unavailable, a mutually agreed upon address.
QQ. Strip Search Policy. "Strip Search Policy" shall mean the written policy, to govern the conduct of all strip searches by Defendant, their agents, and employees upon a person's entry into a Jail in place as of and after January 31,2008.
RR. Third Contribution. GEO will make available an amount from the Settlement Fund $1,499,000.00, by check or wire transfer, into the Settlement Fund pursuant to the terms of this Settlement Agreement. Any unused portion of the $1,499,000.00 will revert to GEO.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 9 of 22
11 REQUIRED EVENTS
Promptly after execution of this Settlement Agreement by all Parties:
1. Class Counsel and Defendant's Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment in substantially the forms
attached hereto as Exhibits D and C, respectively.
2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit D, which by its terms shall:
a. Preliminarily approve the terms of the Settlement Agreement, including the certification of the Class for purposes of this Settlement Agreement only, 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; and
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 an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment (in substantially the same form as Exhibit C) approving the Class Settlement, granting Class Counsel's application for fees and expenses, granting the incentive awards application by the Class Representatives, and dismissing the Litigation with prejudice.
3. Class Counsel and Defendant's 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; provided, however, that in no event shall Defendant be required to agree to any such cure that would increase the cost or burden of the Settlement Agreement to the Defendant.
5.. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties' obligations under this paragraph shall be submitted for decision by Judge Jan E. DuBois or his designated representative and his decision shall be binding on the Parties.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 10 of 22
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 Defendant of any liability or wrongdoing whatsoever, whether as alleged in the Complaint or otherwise. Defendant specifically denies that the conduct alleged in the Complaint gives rise to any such liability .and that any class relating to such allegations properly could be certified as a .class for litigation purposes.
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 that this 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:
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 July 17,2009, the date on which Plaintiffs, Class Counsel, and Defendant agreed to the terms of this settlement.
b. Defendant 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 July 17, 2009, the date on which Plaintiffs, Class Counsel, and Defendant agreed to the terms of this settlement.
IlL SETTLEMENT TERMS
A. Provision of New Policies and Corrections Officer Training
1. Effective January 31, 2008, GEO stopped strip searching detainees admitted to the Jails without reasonable suspicion (to the extent that the Jails had ever strip searched detainees without reasonable suspicion).
2. Defendant's current written Strip Search Policy is constitutional and complies with state and federal law.
3. GEO's Corporate Policies and Procedures Manual will include a copy of the Strip Search Policy, as will the Policies and Procedures Manuals effective at each Jail.
4. All correction officers at the Jails have access to applicable Strip Search Policy and are trained on search policy.
5. Current and new corrections officers who work in the Jails' intake units have been, and will continue to be, trained regarding the Strip Search Policy and when strip searches may and may not be performed.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 11 of 22
6. Defendant will take reasonable steps to ensure that all corrections officers abide by the Strip Search Policy at the Jails.
7. The parties agree that Defendant's commitment to perform only lawful strip searches at intake at the Jails is an essential term to the Settlement Agreement. Accordingly, the parties jointly request an Injunction Order from the Court to ensure GEO's compliance with the revised, lawful Strip Search Policy set forth in its Corporate Policies and Procedures Manual. This Injunction Order shall remain in force for a period of eighteen (18) months from the date that Final Approval is granted to this Settlement. During this eighteen-month period, the Court shall have continuing jurisdiction to ensure compliance with this provision.
a. Every six months, Defendant will report to the Court and Class Counsel the results of the strip search policy compliance portion of its internal QCP audit, including attaching the relevant QCP audit excerpt relating to strip searches.
b. In the event that any of the Jails fail to follow this reasonable suspicion policy (or otherwise perform illegal strip searches of pre-trial detainees upon their admission to the Jail), any persons who are committed to the Jails Defendant operates during the period of time covered by the injunction order and who claim to have been strip searched without reasonable suspicion may seek appropriate relief from this Court to ensure that Defendant only conducts lawful strip searches.
c. Plaintiffs and Class Counsel will not seek Court intervention for an alleged violation of the revised strip search policy, including any request for further reliefor contempt, without first providing Defendants with notice of the relevant information concerning the alleged violation. After such notice, the Parties shall thereafter meet and discuss the allegations of non-compliance and shall see to resolve any differences without Court intervention. If the parties are unable to reach an agreement, Class Counsel may seek relief from the Court.
d. The Injunction Notice, attached as Exhibit G, will be posted in both English and Spanish for the duration of the Injunction.
e. This Injunction remains in effect only so long as the law in the Third Circuit continues to require reasonable suspicion for strip searches of pretrial detainees. Should the applicable law change, Defendant may petition the Court to have the Injunction lifted.
B. Settlement Fund
1. Within five (5) days of entry of the Preliminary Approval Order, GEO will make available the Initial Contribution, not to exceed the sum of $500,000.00 to be used by the Settlement Administrator to cover the costs of Notice and administration of the Settlement. If, at any time, whether by order of any court or because the Defendant is exercising any option to withdraw, the Settlement does not become final, then any unspent money remaining from this sum shall be returned to GEO with no obligation on the part of any party to repay any portion of the money actually spent.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 12 of 22
2. Within five (5) days of the expiration of the Claims Period, GEO will pay into the Settlement Fund the Second Contribution of $1,000,000.00. The entire amount of the Second Contribution shall be set aside by GBO and earmarked for the sole purpose of funding the Settlement Fund, as needed.
3. The remaining monetary obligation of $1,499,000.00, the Third Contribution, will be paid into the Settlement Fund within five (5) days of the Effective Date. In the event the amount of claims received: (a) do not exceed the amount of Second Contribution, GEO does not have to pay the Third Contribution into the Settlement Fund until it receives notice, if any, from the Settlement Administrator that such contribution is needed to satisfy any claims; or (b) exceeds the amount of the Second Contribution but does not rise to the level of the Third Contribution amount, GEO shall pay into the Settlement Fund an amount of the Third Contribution identified by the Settlement Administrator as necessary to satisfy the claims received. Provided, however, that the entire amount ofthe Third Contribution shall be set aside by GEO and earmarked for the sole purpose of funding the Settlement Fund, as needed.
4. All administrative expenses, including the costs of settlement administration, website administration and the provision of notice to Class Members, as well as the amounts awarded by the Court for attorneys' fees and costs, and incentive awards to the Class Representatives, will be deducted from the Settlement Fund prior to determining the Distribution Amount.
C. Payments to Class Members
1. The Settlement Fund will be distributed as follows: each Settlement Class Member who submits a timely Claim Form and is a member of the Class will be entitled to receive apro rata share of that Settlement Fund, not to exceed $400.00 per Settlement Class Member. Any unused portion of the Settlement Fund will revert to GEO. Both the reverter and the $400 per claim cap are critical, essential and nonnegotiable terms ofthe settlement, and that nonacceptance of theses terms makes this agreement null and void, unless both parties agree to any changes in a signed writing.
2. No Class Member shall be entitled to more than his or her individual share of the Settlement Fund regardless of the number of times he or she has been strip searched at a GEO Jail.
3. No portion of the Settlement Fund shall be disbursed before the Effective Date, except as set forth in Section III (B)(l) above and III (E) below.
4. Both parties anticipate that late claims may be filed subsequent to the end of the claims period. Late claims may be allowed, if submitted on or before the date of the Final Approval Hearing, for good cause shown as agreed by the Parties. 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. 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
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 13 of 22

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) ofthe Internal Revenue Code of 1986, as amended. Despite the Parties' intentions, the Parties make no representations regarding the taxability or non-taxability of any payments made hereunder, and the Parties agree that neither Party shall be responsible for payment of any taxes on the amounts paid hereunder to Plaintiffs, Class Representatives, Class Members, or the Settlement Administrator. All payment of taxes or other assessments to 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, the Settlement Administrator and Class Counsel with respect to their portion of the Settlement Funds; Plaintiffs, Class Representatives, Class Members, the Settlement Administrator and Class Counsel hereby agree to indemnify and hold harmless Defendant from any such liability.

D. Attorneys' Fees and Expenses

Class Counsel will petition the Court for an award of attorneys' fees in the amount not to exceed 30% of the entire Settlement Amount, and may also petition the Court for an award of costs, based on documentation, not to exceed $7,500.00. The Parties agree that Defendant has the right to oppose Class Counsel's application for said award of fees and costs and has the right to oppose any appeal filed by Class Counsel relative to their application for an award of attorneys' fees. Any award of attorneys' fees includes any and all applicable taxes. In the event that the Court does not approve the requested amount of attorneys' fees of30% of the Settlement Fund, and costs of up to $7,500.00, 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, and GEO retains the right to contest any such appeal. The Parties agree that 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 for their attorneys' fees and costs within ten (10) days of the Effective Date.

E. Partial Distribution Pending Appeal

In the event that Final Approval of the Settlement is appealed by either party or a third party objector, and if the payment of some portion of the Settlement Fund is not subject to dispute, that undisputed portion ofthe Settlement Fund shall be distributed in accordance with this agreement. In the event that Final Approval of the Settlement is overturned on appeal, all unpaid funds will remain with Defendant, as per the Settlement Fund, with the exception of the initial contribution, detailed in Section III(B)(l).

IV. NOTIFICATION TO CLASS MEMBERS

A. Responsibilities of the Settlement Administrator

1. Program.

The Settlement Administrator shall implement and administer the Notice

2. The parties will request that the Court appoint the Settlement Administrator as an officer of the Court for the purpose of implementing the terms of this Settlement Agreement. The Settlement Administrator shall be subject to judicial immunity to the fullest extent permitted

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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 14 of 22
by law. The Settlement Administrator shall be subject to the jurisdiction of the Court with respect to any dispute arising between the Settlement Administrator and the Parties regarding the implementation of the terms and conditions of the administration agreement.
3. The Settlement Administrator shall be responsible for, without limitation: (i) responding to requests for Claim Forms; (ii) mailing the Class Notices; (iii) arranging for the publication ofthe Summary Notice; (iv) responding to requests for a copy of the Class Notice and other settlement documents; (v) communicating with Class and Defendant Counsel regarding Claim Forms, Objections, and Requests for Exclusion; (vi) otherwise administering the Notice Program; (vii) providing Spanish language services to assist Spanish-speaking persons with completion of Claim Forms; (viii) distributing payments to the Settlement Class Members; and (ix) maintain the Settlement Website at www.multistatestripsearchsettlement.com. or, if unavailable, a mutually agreed upon address by the Parties. The Notice Program shall comply with all requirements of applicable law. The Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of its fiduciary duty to the Court, Class Members, Defendant or Class Counsel.
4. The Settlement Administrator will provide information about the Settlement to Class Members, including notice and claims documents, court documents, and a copy of the Settlement Agreement.
B. Notice
1.. Beginning no later than sixty (60) days from the date of this Order Preliminarily Approving Settlement ("Notice Date"), the Settlement Administrator shall cause to be disseminated the notices. Such Notice Program will be completed expeditiously pursuant to the terms ofthe Settlement Agreement. Prior to the Final Approval Hearing, Plaintiffs 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. GEO has advised Class Counsel that it does not have readily ascertainable address information for the majority of potential Class Members at Frio County Detention Center; Dickens County Detention Center; Tri-County Detention Center; and Newton County Correctional Center; for these Jails, notice will be mailed to all readily ascertainable Class Member addresses. GEO has advised Class Counsel that it does have readily ascertainable address information for the vast majority of potential Class Members at George W. Hill Correctional Jail; for this Jail, notice will be mailed to all readily ascertainable Class Member addresses. GEO has advised Class Counsel that it has readily ascertainable address information for all incoming inmates at the Guadalupe County Correctional Jail; notice will be mailed to all addresses for incoming inmates at this Jail. For all Jails, the mailed notice will be provided in English, and the Summary Notice will be in both English and Spanish. Address information will be updated through the National Change of Address Database prior to mailing.
3. Notice will also be provided to the Class by way of radio advertisements as agreed by the parties pursuant to the Gilardi & Co. LLC Notice Plan (attached as Exhibit F). The
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parties have agreed on the content of the radio advertisements (attached as Exhibit G). For the geographic areas where Frio County Detention Center, Dickens County Detention Center, Guadalupe County Correctional Facility, and Newton County Correctional Center are located, ten (10) of the radio advertisements will be broadcast in Spanish.
4. Additional notice will be provided to the Class by way ofposting of the Summary Notice and Claim Form at the Jails GED currently operates, and at appropriate probation and parole offices for the duration of the notice period. The posted Summary Notice will be in English and-Spanish.
5. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. Notices will be available in both English and Spanish. The Settlement Administrator will also provide downloadable copies of notices, Claim Forms, court decisions and other information to Class members through The Settlement Website at www.multistatestripsearchsettlement.com.or.ifunavailable.amutuallyagreeduponaddress.in both English and Spanish.
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 a national locator database or service and, if another address is found, re-mail the Notice to that 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 Defendant's Counsel, attesting to the measures undertaken to provide Notice of the Settlement. The Settlement Administrator will also provide an Affidavit attesting to activity on the Settlement Website, including number of visitors and number of documents downloaded.
8. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other information about specific 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 by the Settlement Administrator as required by this Settlement Agreement.
9. Claim Forms must be postmarked on or before the 120th day from the Notice Date in order to be considered timely submitted.
10. The Settlement Administrator will advise Class and Defendant Counsel with information regarding who has filed Claim Forms within three (3) business days of receipt ofa Claim Form. If information on a submitted Claim Form is insufficient, unreadable, or left blank, the Settlement Administrator shall contact the person who submitted the Claim Form and work to complete the information. Class Members will be required to submit a copy of a governmentissued form of photo identification along with the Claim Forms. To the extent that a Class Member does not have government-issued photo identification, the Class Member can indicate
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so on the Claim Form, and the Settlement Administrator will contact the Class Member to obtain additional identification from the Class Member. The Parties will jointly determine whether to approve Claim Forms from Class Members who do not have a government-issued form of photo identification. To the extent that the Parties cannot agree, the Settlement Administrator shall make the final decision regarding whether to allow a claim from a person without appropriate photo identification.
11. Defendant shall have the right to challenge submitted Claims Forms as not meeting the Class definition.
12. Settlement Administrator employees who are fluent in oral and written Spanish will assist Settlement Class Members whose primary language is Spanish in completing Claim Forms.
13. The Settlement Administrator shall have final authority to determine whether individuals who have submitted Claim Forms qualify as Settlement Class Members.
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 not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement, does not wish to be a Settlement Class Member and elects 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 Opt-Out List to Class Counsel and to Defendant's Counsel together with copies of each Request for Exclusion. Class Counsel and Defendant' Counsel shall jointly report the names appearing on the Opt-Out List to the Court at the time ofthe Final Approval Hearing.
D. Class Counsel agrees that they will not represent any individuals who opt out from the Settlement in asserting claims against the Defendant that are the subject of this Agreement.
VI. OBJECTIONS BYSETTLEMENT CLASS MEMBERS
A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Any Objection must be postmarked not later than the Objection Date. Such objection shall state the name, address and telephone number of the person and
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provide proof of membership in the Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support ofthe objection.
B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration ofjustice and the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members' due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon one of the Class Counsel and Defendant's Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above, shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Court.
C. In accordance with law, only Settlement Class Members who have objected to the Settlement pursuant to the terms immediately above may appeal any Final Judgment. The proposed Final Judgment shall provide that any Settlement Class Member who wishes to appeal the Final Judgment, which 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 appeal.
VII. RELEASE, DISMISSAL OFACTION, AND JURISDICTION OF COURT
A. By this Settlement Agreement and specifically as provided in this Paragraph, Defendant, and all ofits respective affiliates, parent corporations, subsidiaries, predecessors, operating units, related corporations, affiliates, successors and assigns, officers, agents, representatives, insurers, and all of their employees, supervisors, officers, directors, and agents, officials, insurers, attorneys and any person or entity which can be held jointly and severally liable with any of them, are released from any and all claims,causes of action, liabilities, demands, and causes of action, fixed or contingent, that were or could have been asserted by the named Plaintiffs or any member of the Class against the Released Parties, or any of them, based upon or related in any way to the strip searches that are the subject of this Litigation, including all laws (whether statutory or common law), and including but not limited to claims under any federal, state, or other governmental statute, regulation or ordinance.
B. This Settlement Agreement does not affect the rights, if any, of Settlement Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 18 of 22
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.
D. Upon the Effective Date: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Settlement Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Settlement Class Members and their successors, predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal. As set forth above, Class Counsel shall be paid their Court-approved attorneys' fees and costs within ten (10) days of the Effective Date.
E. Tolling of Statute of Limitations. Defendant 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, Defendant shall not assert any statute of limitations, repose, or lathes defense unless such defense (i) existed as of January 30, 2008, 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. Further, in the event that the Court does not approve this Settlement Agreement, or an appellate court reverses the Court's order approving this Settlement Agreement, Defendant agrees that, with respect to any claims asserted in the Litigation that are subsequently asserted or maintained in any existing or subsequently filed class action lawsuit, or by any member of the Class, Defendant shall not assert any statute of limitations, repose or laches defense that is premised upon the time period of January 31, 2008 through and including the date of the latter of either: the entry of the Court's order disapproving this Settlement Agreement or the appellate court's decision reversing the Court's order approving this Settlement Agreement. This tolling will cease thirty (30) days after one of the events detailed in the preceding sentence comes to pass.
VIIL INCENTIVE AWARDS TO CLASS REPRESENTATIVES
Given the efforts of the named Plaintiffs on behalf of the Class, Defendant will not oppose an application for awards of$2,500.00 each on behalf of the Class Representatives Penny Allison and Zoran Hocevar. It is agreed between the Parties that the Class Representatives provided substantial assistance to Class Counsel in their prosecution of this action. Class Representatives are also eligible for payment of the maximum $400.00 awards to be paid to Settlement Class Members.
IX. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation.
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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 19 of 22
B. Defendant, through their undersigned attorneys, represent and warrant that they have the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Defendant of this Settlement Agreement and the consummation by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of Defendant. This Settlement Agreement has been duly and validly executed and delivered by Defendant and constitutes their legal, valid, and binding obligation.
X. MISCELLANEOUS PROVISIONS
A. This Settlement Agreement,and the exhibits and related documents hereto as well as any payment of moneys, or any other action taken, by the Defendant pursuant to any provision of this Settlement Agreement are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendant with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Defendant denies any liability to Plaintiffs and to all Members of the Class. This provision shall survive the expiration or voiding ofthe Settlement Agreement.
B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Judgment is not entered, then this Settlement Agreement, including any Releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties' settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties or their counsel.
E. This Settlement Agreement may be executed in one or more counterparts,each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
G. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear his or its own costs of the Litigation.
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H. If any clause, provision or paragraph of this Settlement Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this Settlement Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had not been contained herein.

I.

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

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

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

J.

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

Agreement shall be made on notice to Plaintiffs and Defendant.

K. The determination of the terms of, and the drafting of, this Settlement Agreement, including its exhibits, has been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of all Parties .and their counsel, the presumption that ambiguities shall be construed against the drafter does notapply. Each of the Parties was represented by competent and effective counsel throughout the course of Settlement negotiations and in the drafting and execution of this Settlement Agreement, and there was no disparity in bargaining power among the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any other Party or any other Party's counsel.

L. Integrated Agreement

1. All of the exhibits to this Settlement Agreement are material and integral parts hereof, and are fully incorporated herein by reference.

2. This Settlement Agreement and the exhibits thereto constitute the entire, fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the Settlement of the Litigation.

M. Notice:

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

If to Defendant to: Carolyn P. Short, Reed Smith LLP, 2500 One Liberty Place, 1650 Market Street, Philadelphia PA 19103.

If to Class Counselor Plaintiffs to: Joseph G. Sauder and Benjamin F. Johns of Chimicles & Tikellis LLP, One Haverford Center, 361 W. Lancaster Ave., Haverford, PA 19041

N. Dispute Resolution. The Parties agree that any disputes regarding the terms and conditions of this Settlement Agreement shall be submitted to the Retired Magistrate Judge

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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 21 of 22

Melinson, who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, shall decide such dispute. Judge Melinson's decision shall be fmal and binding.

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

Dated:

David Rudovsky Jonathan H. Feinberg KAIRYS RUDOVSKY MESSING & FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 215.925.4400

Daniel C. Levin Charles Schaffer LEVIN, FISHBEIN, SEDRAN & BERMAN 510WaInut Street, Ste. 500 Philadelphia, PA 19106 215.592.1500

Jennifer R. Clarke THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 S. Ninth Street, Suite 700 Philadelphia, PA 19107 215.627.7100

Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford, PA 19041 610.642.8500
Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610.431.9505

ATTORNEYS FOR PLAINTIFFS

Dated:
3/1110

THE GEO GROUP, INC.

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Case 2:08-cv-00467-JD Document 60-3 Filed 03/01/10 Page 22 of 22

Melinson. who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, shall decide such dispute. Judge MeIinson's decision shall be final and binding.

IN WITNESS WHEREOF. Plaintiffs and Defendant and their respective counsel have

~"~~"'::::'-- executed this Sett ement Agreement as ofthe date s indi eo e Ii s elow.

Dated:

b

{1f---f-_?J::......:.....6·

David Rudovsky

Jonathan H. Feinberg

KAIRYS RUDOVSKY MESS

FEINBERG

The Cast Iron Building

718 Arch Street. Suite 501

Philadelphia, PA 19106

215.925.4400

Daniel C. Levin Charles Schaffer LEVIN. FISHBEIN. SEDRAN & BERMAN 510 Walnut Street. Ste. 500 Philadelphia. PA 19106 215.592.1500
Jennifer R. Clarke
THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 $. Ninth Street. Suite 700 Philadelphia.PA 19107 215.627.7100
Joseph G. Sauder Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Center 361 W. Lancaster Ave Haverford. PA 19041 610.642.8500

Christopher G. Hayes LAW OFFICES OF CHRISTOPHER G. HAYES 225 South Church Street WestChester. PA 19382 610.431.9505

ATTORNEYS FOR PLAINTIFFS

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 Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 1 of 9
CLOSED, SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:08−cv−00467−JD

BUSSY v. THE GEO GROUP, INC. et al Assigned to: HONORABLE JAN E. DUBOIS Cause: 42:1983 Prisoner Civil Rights Plaintiff STEPHEN DIMITRI BUSSY INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED TERMINATED: 03/28/2008
Plaintiff

Date Filed: 01/30/2008 Date Terminated: 10/13/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING &FEINBERG LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215−925−4400 Fax: 215−925−5365 Email: drudovsky@krlawphila.com TERMINATED: 03/28/2008 LEAD ATTORNEY
BENJAMIN F. JOHNS CHIMICLES &TIKELLIS LLP 361 W. LANCASTER AVE HAVERFORD, PA 19041 610−642−8200 Email: bfj@chimicles.com TERMINATED: 03/28/2008
CHRISTOPHER G HAYES LAW OFFICES OF CHRISTOPHER G. HAYES 225 SOUTH CHURCH STREET WEST CHESTER, PA 19382 610−431−9505 Fax: 610−431−1269 Email: chris@chayeslaw.com TERMINATED: 03/28/2008
DANIEL C. LEVIN LEVIN, FISHBEIN, SEDRAN &BERMAN 510 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19106 Email: dlevin@lfsblaw.com TERMINATED: 03/28/2008
JOSEPH G. SAUDER CHIMICLES &TIKELLIS LLP ONE HAVERFORD CENTRE 361 WEST LANCASTER AVENUE HAVERFORD, PA 19041 610−642−8500 Email: jgs@chimicles.com TERMINATED: 03/28/2008
represented by

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 2 of 9

PENNY ALLISON individually and on behalf of a class of others similarly situated

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

BENJAMIN F. JOHNS (See above for address) ATTORNEY TO BE NOTICED

CHRISTOPHER G HAYES (See above for address) ATTORNEY TO BE NOTICED

DANIEL C. LEVIN (See above for address) ATTORNEY TO BE NOTICED

JENNIFER R. CLARKE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 1709 BENJAMIN FRANKLIN PARKWAY SECOND FLOOR PHILADELPHIA, PA 19103 215−627−7100 Email: jclarke@pilcop.org ATTORNEY TO BE NOTICED

JOSEPH G. SAUDER (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ZORAN HOCEVAR

represented by DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

BENJAMIN F. JOHNS (See above for address) ATTORNEY TO BE NOTICED

CHRISTOPHER G HAYES (See above for address) ATTORNEY TO BE NOTICED

DANIEL C. LEVIN (See above for address) ATTORNEY TO BE NOTICED

JENNIFER R. CLARKE (See above for address) ATTORNEY TO BE NOTICED

JOSEPH G. SAUDER (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
THE GEO GROUP, INC. IN ITS OFFICIAL AND INDIVIDUAL

represented by CAROLYN P. SHORT REED SMITH LLP

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 3 of 9

CAPACITIES

2500 ONE LIBERTY PL 1650 MARKET ST PHILADELPHIA, PA 19103 215−851−8241 Fax: 215−851−1420 Email: cshort@reedsmith.com ATTORNEY TO BE NOTICED

MIRIAM S. EDELSTEIN REED SMITH LLP 2500 ONE LIBERTY PLACE 1650 MARKET ST. PHILADELPHIA, PA 19103 215−851−8224 Fax: 215−851−1420 Email: medelstein@reedsmith.com ATTORNEY TO BE NOTICED

SARA A. BEGLEY REED SMITH LLP 2500 ONE LIBERTY PL 1650 MARKET ST PHILA, PA 19103 215−851−8100 Fax: 215−851−1420 Email: sbegley@reedsmith.com ATTORNEY TO BE NOTICED

SHANNON ELISE MCCLURE REED SMITH LLP 2500 ONE LIBERTY PLACE 1650 MARKET ST. PHILADELPHIA, PA 19103 215−851−8226 Email: smcclure@reedsmith.com ATTORNEY TO BE NOTICED

Defendant
JOHN DOES 1 − 100 IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES

Date Filed 01/30/2008
01/30/2008 01/30/2008 01/30/2008 01/30/2008 01/30/2008

# Docket Text
1 COMPLAINT against THE GEO GROUP, INC., JOHN DOES 1 − 100 ( Filing fee $ 350 receipt number 945473), filed by STEPHEN DIMITRI BUSSY. (Attachments: # 1 Case Management Track, # 2 Civil Cover Sheet, # 3 Design Form)(jmv, ) (Entered: 01/30/2008)
DEMAND for Trial by Jury by STEPHEN DIMITRI BUSSY. (jmv, ) (Entered: 01/30/2008)
Summons Issued as to THE GEO GROUP, INC.. Forwarded To: 1 Orig mailed to counsel on 1/30/08 (jmv, ) (Entered: 01/30/2008)
2 Disclosure Statement Form pursuant to FRCP 7.1 by STEPHEN DIMITRI BUSSY.(jmv, ) (Entered: 01/30/2008)
3 NOTICE of Appearance by JOSEPH G. SAUDER on behalf of STEPHEN DIMITRI BUSSY (SAUDER, JOSEPH) (Entered: 01/30/2008)
4 NOTICE of Appearance by BENJAMIN F. JOHNS on behalf of STEPHEN DIMITRI BUSSY (JOHNS, BENJAMIN) (Entered: 01/30/2008)

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 4 of 9

01/30/2008 02/01/2008 02/06/2008 02/06/2008
02/13/2008 02/13/2008 02/13/2008 02/13/2008
02/20/2008
03/04/2008 03/10/2008 03/28/2008 04/03/2008 04/03/2008 04/03/2008 04/03/2008 04/09/2008
04/24/2008

5 Disclosure Statement Form pursuant to FRCP 7.1 by STEPHEN DIMITRI BUSSY.(jl, ) (Entered: 01/31/2008)
6 NOTICE of Appearance by CHRISTOPHER G HAYES on behalf of STEPHEN DIMITRI BUSSY (HAYES, CHRISTOPHER) (Entered: 02/01/2008)
7 NOTICE of Appearance by DANIEL C. LEVIN on behalf of STEPHEN DIMITRI BUSSY with Jury Demand(LEVIN, DANIEL) (Entered: 02/06/2008)
8 AFFIDAVIT of Service by WAYNE Z. POLLICK re: served COMPLAINT, SUMMONS, AND NOTICE OF RIGHT TO CONSENT TO EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE upon JOHN BULSIN, SENIOR VICE PRESIDENT OF THE GEO GROUP, INC. on 2/1/08 (JOHNS, BENJAMIN) (Entered: 02/06/2008)
9 NOTICE of Appearance by MIRIAM S. EDELSTEIN on behalf of THE GEO GROUP, INC. with Certificate of Service(EDELSTEIN, MIRIAM) (Entered: 02/13/2008)
10 NOTICE of Appearance by CAROLYN P. SHORT on behalf of THE GEO GROUP, INC. with Certificate of Service(SHORT, CAROLYN) (Entered: 02/13/2008)
11 NOTICE of Appearance by SARA A. BEGLEY on behalf of THE GEO GROUP, INC. with Certificate of Service(BEGLEY, SARA) (Entered: 02/13/2008)
12 Stipulation for Extension of Time to File Answer re 1 Complaint filed by THE GEO GROUP, INC..Certificate of Service.(SHORT, CAROLYN) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO CLERK/JUDGE FOR APPROVAL) Modified on 2/14/2008 (nd). (Entered: 02/13/2008)
13 STIPULATION AND ORDER THAT THE DEFENDANT GEO GROUP, INC. HAS UNTIL 4/2/08 TO ANSWER THE COMPLAINT; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 2/15/08. 2/20/08 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 02/20/2008)
14 NOTICE of Appearance by SHANNON ELISE MCCLURE on behalf of THE GEO GROUP, INC. with Certificate of Service(MCCLURE, SHANNON) (Entered: 03/04/2008)
15 NOTICE of Hearing: PRELIMINARY PRETRIAL CONFERENCE IS SET FOR 4/22/2008 AT 5:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE JAN E. DUBOIS.(ajf, ) (Entered: 03/10/2008)
16 AMENDED COMPLAINT against THE GEO GROUP, INC., filed by PENNY ALLISON, ZORAN HOCEVAR, JURY DEMAND.(jl, ) (Entered: 03/31/2008)
17 NOTICE of Appearance by JOSEPH G. SAUDER on behalf of PENNY ALLISON, ZORAN HOCEVAR (SAUDER, JOSEPH) (Entered: 04/03/2008)
18 NOTICE of Appearance by BENJAMIN F. JOHNS on behalf of PENNY ALLISON, ZORAN HOCEVAR (JOHNS, BENJAMIN) (Entered: 04/03/2008)
19 NOTICE of Appearance by DANIEL C. LEVIN on behalf of PENNY ALLISON, ZORAN HOCEVAR (LEVIN, DANIEL) (Entered: 04/03/2008)
20 NOTICE of Appearance by CHRISTOPHER G HAYES on behalf of PENNY ALLISON, ZORAN HOCEVAR (HAYES, CHRISTOPHER) (Entered: 04/03/2008)
21 STIPULATION AND ORDER THAT DEFT, THE GEO GROUP, INC.'S TIME TO ANSWER OR OTHERWISE RESPOND TO THE AMENDED COMPLAINT IN THE ABOVE−CAPTIONED ACTION SHALL BE EXTENDED UP TO &INCLUDING 5/2/2008. SIGNED BY HONORABLE JAN E. DUBOIS ON 4/8/08. 4/10/08 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 04/10/2008)
22 SCHEDULING ORDER THAT DISCOVERY WILL BE SERVED, NOTICED AND COMPLETED BY 1/16/09. PLAINTIFFS SHALL FILE AND SERVE A MOTION FOR CLASS CERTIFICATION ON OR BEFORE 2/13/09; ETC..

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 5 of 9

04/29/2008 05/02/2008 05/07/2008 05/07/2008 05/30/2008
06/19/2008 09/08/2008 09/18/2008 09/19/2008 09/26/2008
09/30/2008 10/08/2008
10/10/2008

SIGNED BY HONORABLE JAN E. DUBOIS ON 4/22/08. 4/24/08 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 04/24/2008)
23 Minute Entry for proceedings held before HONORABLE JAN E. DUBOIS: Pretrial Conference held on 4/22/08 (jl, ) (Entered: 04/29/2008)
24 MOTION to Dismiss Counts IV, VI, and VII of Plaintiffs' Amended Complaint filed by THE GEO GROUP, INC..Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law in Support)(SHORT, CAROLYN) (Entered: 05/02/2008)
25 Statement Disclosure Statement Form with Certificate of Service by THE GEO GROUP, INC.. (MCCLURE, SHANNON) (Entered: 05/07/2008)
Disclosure Statement Form pursuant to FRCP 7.1 by THE GEO GROUP, INC.. (SEE PAPER #25 FOR ATTACHMENT) (nd) (Entered: 05/08/2008)
26 ORDER THAT DEFENDANT THE GEO GROUP, INC.'S UNOPPOSED MOTION TO DISMISS DIRECTED TO COUNTS IV,VI, AND VII OF THE AMENDED COMPLAINT IS GRANTED AND COUNTS IV, VI AND VII OF THE AMENDED COMPLAINT ARE DISMISSED FROM THIS ACTION WITH PREJUDICE; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/30/08. 6/2/08 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 06/02/2008)
27 ANSWER to 16 Amended Complaint and Affirmative Defenses by THE GEO GROUP, INC..(SHORT, CAROLYN) (Entered: 06/19/2008)
28 STIPULATION AND PROTECTIVE ORDER WITH COURT APPROVAL RE: CERTAIN STATEMENTS; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 9/5/08. 9/8/08 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 09/08/2008)
29 MOTION for Judgment on the Pleadings filed by THE GEO GROUP, INC..Memorandum, Certificate of Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(SHORT, CAROLYN) (Entered: 09/18/2008)
30 MOTION to Stay Discovery, MOTION for Protective Order filed by THE GEO GROUP, INC..Memorandum, Certificate of Counsel, Certificate of Service.(SHORT, CAROLYN) (Entered: 09/19/2008)
31 STIPULATION AND ORDER THAT THE TIME FOR PLAINTIFFS' RESPONSE TO MOTION FOR JUDGMENT ON THE PLEADINGS IN THE ABOVE−CAPTIONED ACTION SHALL BE EXTENDED UP TO AND INCLUDING 10/21/08; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 9/25/08. 9/26/08 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 09/26/2008)
32 RESPONSE in Opposition re 30 MOTION to Stay Discovery MOTION for Protective Order filed by PENNY ALLISON, ZORAN HOCEVAR. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order, # 4 Certificate of Service)(JOHNS, BENJAMIN) (Entered: 09/30/2008)
33 ORDER THAT THE MOTION OF DEFENDANT THE GEO GROUP, INC. FOR A PROTECTIVE ORDER AND STAY OF DISCOVERY IS GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED THAT, BY REASON OF THE PARTIAL GRANTING OF THE MOTION FOR PROTECTIVE ORDER AND STAY OF DISCOVERY, THE SCHEDULING ORDER OF 4/22/08 IS VACATED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/7/08. 10/9/08 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 10/09/2008)
34 ORDER THAT THE ORDER OF 10/7/08 IS VACATED. IT IS FURTHER ORDERED THAT THE MOTION OF DEFENDANT THE GEO GROUP, INC. FOR A PROTECTIVE ORDER AND STAY OF DISCOVERY IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/10/08. 10/10/08 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 10/10/2008)

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 6 of 9

10/21/2008 10/27/2008 11/05/2008 11/07/2008 02/11/2009
02/23/2009 03/25/2009
03/27/2009 04/02/2009 04/07/2009
04/09/2009
04/13/2009

35 RESPONSE in Opposition re 29 MOTION for Judgment on the Pleadings filed by PENNY ALLISON, ZORAN HOCEVAR. (Attachments: # 1 Certificate of Service, # 2 Text of Proposed Order)(JOHNS, BENJAMIN) (Entered: 10/21/2008)
36 NOTICE of Appearance by JENNIFER R. CLARKE on behalf of PENNY ALLISON, ZORAN HOCEVAR (CLARKE, JENNIFER) (Entered: 10/27/2008)
37 REPLY to Response to Motion re 29 MOTION for Judgment on the Pleadings Certificate of Service filed by THE GEO GROUP, INC.. (SHORT, CAROLYN) (Entered: 11/05/2008)
38 Minute Entry for proceedings held before HONORABLE JAN E. DUBOIS: Telephone STATUS Conference held on 10/7/08 (jl, ) (Entered: 11/07/2008)
39 NOTICE by PENNY ALLISON, ZORAN HOCEVAR re 35 Response in Opposition to Motion NOTICE OF SUPPLEMENTAL AUTHORITY IN FURTHER SUPPORT OF PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO GEO'S MOTION FOR JUDGMENT ON THE PLEADINGS (Attachments: # 1 EXHIBIT A, # 2 CERTIFICATE OF SERVICE)(JOHNS, BENJAMIN) (Entered: 02/11/2009)
40 NOTICE by THE GEO GROUP, INC. re 39 Notice (Other), Notice (Other) Defendant The GEO Group, Inc.'s Response to Plaintiffs' Notice of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(SHORT, CAROLYN) (Entered: 02/23/2009)
41 MEMORANDUM AND ORDER THAT THE MOTION OF DEFENDANT THE GEO GROUP, INC. FOR JUDGMENT ON THE PLEADINGS IS DENIED. IT IS FURTHER ORDERED THAT DEFENDANT'S REQUEST FOR ORAL ARGUMENT IS DENIED AS MOOT. IT IS FURTHER ORDERED THAT THE PARTIAL STAY ON DISCOVERY IMPOSED BY THE COURT DATED 10/10/08 IS VACATED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 3/24/09. 3/25/09 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 03/25/2009)
42 NOTICE of SCHEDULING CONFERENCE: SCHEDULING CONFERENCE IS SET FOR 4/13/2009 AT 4:45 PM BY TELEPHONE BEFORE HONORABLE JAN E. DUBOIS.(ajf, ) (Entered: 03/27/2009)
43 MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) filed by THE GEO GROUP, INC..Memorandum, Certificate of Service.(SHORT, CAROLYN) (Entered: 04/02/2009)
44 RESPONSE in Opposition re 43 MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) filed by PENNY ALLISON, Certificate of Service. (RUDOVSKY, DAVID) Modified on 4/8/2009 (nd, ). (Entered: 04/07/2009)
45 REPLY to Response to Motion re 43 MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) filed by THE GEO GROUP, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(SHORT, CAROLYN) (Entered: 04/09/2009)
47 Minute Entry for proceedings held before HONORABLE JAN E. DUBOIS: Telephone Status Conference held on 04/13/2009. (jfc, ) Modified on 4/16/2009 (afm, ). (Entered: 04/16/2009)

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 7 of 9

04/14/2009
04/23/2009
05/01/2009
05/07/2009 05/19/2009 05/19/2009
11/19/2009 12/21/2009 12/23/2009 01/05/2010

46 ORDER THAT ON OR BEFORE 4/23/09, DEFENDANT SHALL FILE AND SERVE A SUPPLEMENTAL MEMORANDUM OF LAW ON THE NEED FOR A MORE COMPLETE RECORD WITH RESPECT TO THE MOTION FOR CERTIFICATION. PLAINTIFF SHALL FILE AND SERVE A RESPONSIVE MEMORANDUM OF LAW ON OR BEFORE 5/5/09. ON OR BEFORE 5/5/09, THE PARTIES, THROUGH COUNSEL, SHALL JOINTLY REPORT TO THE COURT WITH RESPECT TO WHETHER THE CASE IS SETTLED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 4/14/09. 4/15/09 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 04/15/2009)
48 Memorandum of Law in Support (Supplemental) re 43 MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) with Certificate of Service filed by THE GEO GROUP, INC.. (SHORT, CAROLYN) (Entered: 04/23/2009)
49 Memorandum in Opposition re 43 MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) MOTION to Amend/Correct 41 Memorandum &Opinion, Motion Of Defendant The GEO Group, Inc. To Amend This Courts March 24, 2009 Order To Certify An Issue For Interlocutory Appeal Pursuant To 28 U.S.C. § 1292(b) filed by PENNY ALLISON. (RUDOVSKY, DAVID) (Entered: 05/01/2009)
50 ORDER THAT THE JOINT REQUEST OF THE PARTIES FOR A TEN DAY EXTENSION FROM MAY 5 TO 5/15/09, FOR SUBMISSIONS OF THE JOINT REPORT ON SETTLEMENT TO WHICH REFERENCE IS MADE IN PARAGRAPH 2 OF THE ORDER OF 4/14/09 IS GRANTED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/7/09. 5/7/09 ENTERED AND E−MAILED.(jl, ) (Entered: 05/07/2009)
51 Letter from DAVID RUDOVSKY AND CAROLYN SHORT TO JUDGE DUBOIS RE: CERTAIN STATEMENTS. (jl, ) (Entered: 05/20/2009)
52 ORDER THAT THE PARTIES, THROUGH COUNSEL, SHALL JOINTLY REPORT TO THE COURT ON OR BEFORE 6/15/09, WITH RESPECT TO THE STATUS OF THEIR SETTLEMENT DISCUSSIONS AND MEDIATION BEFORE RETIRED UNITED STATES MAGISTRATE JUDGE JAMES MELINSON; AND THE COURT DEFERS RULING ON THE MOTION OF DEFENDANT THE GEO GROUP, INC. TO AMEND THIS COURT'S 3/24/09 ORDER TO CERTIFY AN ISSUE FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. (b) UNTIL THE ISSUE OF SETTLEMENT IS FULLY EXPLORED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/19/09. 5/20/09 ENTERED AND E−MAILED.(jl, ) (Entered: 05/20/2009)
53 NOTICE of Change of Address by JENNIFER R. CLARKE(CLARKE, JENNIFER) (Entered: 11/19/2009)
54 Joint MOTION for Approval Preliminary Approval of Settlement and Provisional Class Certification filed by STEPHEN DIMITRI BUSSY, THE GEO GROUP, INC., PENNY ALLISON, ZORAN HOCEVAR.Memorandum of Law in Support and Certificate of Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1A, # 3 Exhibit 1B, # 4 Exhibit 2)(SHORT, CAROLYN) (Entered: 12/21/2009)
55 NOTICE of Hearing: CONFERENCE SET FOR 1/29/2010 03:30 PM IN JUDGE'S CHAMBERS, ROOM 12613, BEFORE HONORABLE JAN E. DUBOIS.(gvw, ) (Entered: 12/23/2009)
56 NOTICE of Hearing: CONFERENCE SET FOR 2/5/2010 03:30 PM IN JUDGE'S CHAMBERS (ROOM 12613)BEFORE HONORABLE JAN E. DUBOIS.(gvw, ) (Entered: 01/05/2010)

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 8 of 9

01/20/2010 01/22/2010 02/12/2010 03/01/2010
03/02/2010
03/10/2010 04/23/2010 04/23/2010
09/27/2010 09/27/2010 09/29/2010

57 ORDERED THAT A CHAMBERS CONFERENCE FOR THE PURPOSES OF REVIEWING THE SETTLEMENT AGREEMENT, THE PROPOSED CLAIM FORM, THE PROPOSED NOTICES IS SCHEDULED FOR 2/12/10 AT 2:00 P.M.; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 1/19/10. 1/21/10 ENTERED AND E−MAILED.(jl, ) (Entered: 01/21/2010)
58 Minute Entry for proceedings held before HONORABLE JAN E. DUBOIS: Telephone STATUS CONFERENCE held on 1/19/10 (jl, ) (Entered: 01/25/2010)
59 NOTICE of Hearing: CONFERENCE SET FOR 2/23/2010 02:00 PM IN JUDGE'S CHAMBERS (RM. 12613) BEFORE HONORABLE JAN E. DUBOIS.(gvw, ) (Entered: 02/12/2010)
60 Joint MOTION for Approval (Preliminary) of Amended Settlement and Provisional Class Certification filed by PENNY ALLISON, ZORAN HOCEVAR, THE GEO GROUP, INC..Memorandum of Law and Certificate of Service. (Attachments: # 1 Supplement Memorandum of Law in Support (Part 1), # 2 Supplement Memorandum of Law in Support (Part 2), # 3 Exhibit Exhibit Sheet and Exhibit 1 (Settlement Agreement) to Memorandum of Law, # 4 Exhibit Exhibits A−C of Settlement Agreement, # 5 Exhibit Exhibits D−E of Settlement Agreement, # 6 Exhibit Exhibit F−G of Settlement Agreement, # 7 Exhibit Exhibit 2 to Memorandum of Law, # 8 Exhibit Exhibit 3 to Memorandum of Law, # 9 Exhibit Exhibit 4 to Memorandum of Law)(MCCLURE, SHANNON) (Entered: 03/01/2010)
61 ORDERED THAT TERMS OF THE PARTIES SETTLEMENT AGREEMENT ARE HEREBY CONDITIONALLY APPROVED, SUBJECT TO FURTHER CONSIDERATION THEREOF AT THE FINAL APPROVAL HEARING. A HEARING ON THE SETTLEMENT IS HEREBY SCHEDULED TO BE HELD BEFORE THIS COURT ON 10/1/10 AT 2:30 P.M. TO CONSIDER THE FAIRNESS, THE REASONABLENESS AND ADEQUACY OF THE PROPOSED SETTLEMENT; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 3/2/10. 3/2/10 ENTERED AND E−MAILED.(jl, ) (Entered: 03/02/2010)
62 ORDER THAT THE MOTION OF DEFENDANT THE GEO GROUP, INC. TO AMEND THIS COURT'S 3/24/09 ORDER TO CERTIFY AN ISSUE FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. (b) IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 3/10/10. 3/11/10 ENTERED AND E−MAILED.(jl, ) (Entered: 03/11/2010)
63 Letter from CAROLYN SHORT TO JUDGE DUBOIS RE: CERTAIN STATEMENTS. (jl, ) (Entered: 04/23/2010)
64 AMENDED ORDER THAT BEGINNING BY 5/17/10, CLASS COUNSEL SHALL CAUSE TO BE DISSEMINATED THE NOTICES IN THE MANNER SET FORTH IN SECTION IV OF THE SETTLEMENT AGREEMENT. SUCH NOTICE PROGRAM WILL BE COMPLETED EXPEDITIOUSLY PURSUANT TO THE TERMS OF THE SETTLEMENT AGREEMENT. CLASS MEMBERS WILL HAVE FORTY FIVE DAYS FROM THE NOTICE DATE, UNTIL 7/1/10, TO OPT OUT OR TO OBJECT, AND ONE−HUNDRED TWENTY DAYS FROM THE NOTICE TO FILE CLAIMS, UNTIL 9/14/10; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 4/23/10. 4/26/10 ENTERED AND E−MAILED.(jl, ) (Entered: 04/26/2010)
65 MOTION for Attorney Fees EXPENSES AND INCENTIVE AWARDS filed by PENNY ALLISON, ZORAN HOCEVAR.Memorandum. (Attachments: # 1 Memorandum of Law, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(JOHNS, BENJAMIN) (Entered: 09/27/2010)
66 Final MOTION for Approval of Settlement and Class Certification filed by THE GEO GROUP, INC..Memorandum, Certificate of Service. (Attachments: # 1 Exhibit Declaration of Ryanne Cozzi, # 2 Exhibit Declaration of Benjamin Johns)(SHORT, CAROLYN) (Entered: 09/27/2010)
67 RESPONSE in Opposition re 65 MOTION for Attorney Fees EXPENSES AND INCENTIVE AWARDS filed by THE GEO GROUP, INC.. (SHORT, CAROLYN) (Entered: 09/29/2010)

Case: 2:08-cv-467 As of: 04/06/2011 11:01 PM EDT 9 of 9

10/01/2010 10/04/2010
10/05/2010 10/06/2010 10/13/2010
10/22/2010 10/22/2010 11/01/2010 11/01/2010

68 REPLY to Response to Motion re 65 MOTION for Attorney Fees EXPENSES AND INCENTIVE AWARDS filed by PENNY ALLISON, ZORAN HOCEVAR. (JOHNS, BENJAMIN) (Entered: 10/01/2010)
69 ORDER THAT A MOTION HEARING ON MOTION FOR ATTORNEY FEES, EXPENSES AND INCENTIVE AWARDS (DOC. NO. 66) IS SET FOR 11/1/2010 AT 2:00 PM IN COURTROOM 12−B BEFORE HONORABLE JAN E. DUBOIS. A TELEPHONE CONFERENCE IS SET FOR 10/5/2010 AT 2:30 PM TO ADDRESS ISSUES RELATED TO THE PREPARATION AND FILING OF AN ORDER GRANTING THE MOTION FOR FINAL APPROVAL OF SETTLEMENT AND CLASS CERTIFICATION BEFORE HONORABLE JAN E. DUBOIS. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/1/2010. 10/4/2010 ENTERED AND COPIES E−MAILED.(jcab) (Entered: 10/04/2010)
70 Minute Entry for proceedings held before HONORABLE JAN E. DUBOIS: FAIRNESS HEARING held on 10/1/10. (jl, ) (Entered: 10/05/2010)
71 ORDER THAT COUNSEL SHALL JOINTLY REPORT TO THE COURT ON OR BEFORE 10/12/10, WITH RESPECT TO A RESOLUTION OF THE ISSUES PRESENTED BY PLAINTIFFS MOTION FOR ATTORNEY FEES, EXPENSES AND INCENTIVE AWARDS; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/5/10. 10/6/10 ENTERED AND E−MAILED.(jl, ) (Entered: 10/06/2010)
72 ORDER THAT THE SETTLEMENT CLASS MEMBERS ARE BOUND BY THE: SETTLEMENT, SETTLEMENT AGREEMENT, RELEASE CONTAINED WITHIN THE SETTLEMENT AGREEMENT, AND THE FINAL ORDER AND JUDGMENT. SETTLEMENT CLASS MEMBERS DO NOT HAVE A FURTHER OPPORTUNITY TO OPT−OUT OF THIS ACTION. THE LIABILITY ISSUES IN THIS CASE HAVE BEEN VIGOROUSLY CONTESTED. THE CLASS REPRESENTATIVE, PENNY ALLISON AND ZORAN HOCEVAR, ARE ENTITLED TO AND ARE HEREBY AWARDED A PAYMENT OF $2,500.00 EACH. THE PARTIES JOINT MOTION FOR FINAL APPROVAL OF THE PROPOSED SETTLEMENT IS GRANTED. THIS ACTION AND ALL CLAIMS AGAINST THE SETTLING DEFENDANT ARE HEREBY DISMISSED WITH PREJUDICE. THE COURT RESERVES JURISDICTION OVER ALL MATTERS ARISING OUT OF THE SETTLEMENT AGREEMENT; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/13/10. 10/14/10 ENTERED AND E−MAILED.(jl, ) (Entered: 10/14/2010)
73 ORDER DISMISSING ACTION WITH PREJUDICE PURSUANT TO LOCAL RULE 41.1(b), BY AGREEMENT OF COUNSEL, WITHOUT COSTS. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/22/2010. 10/22/2010 ENTERED AND COPIES MAILED, E−MAILED.(kk, ) (Entered: 10/22/2010)
74 ORDER THAT THE MOTION IS GRANTED IN PART AND DENIED IN PART, AND THE COURT AWARDS CLASS COUNSEL $510,000 IN ATTORNEYS' FEES FROM THE SETTLEMENT FUND. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/21/2010. 10/25/2010 ENTERED AND COPIES MAILED, E−MAILED.(kk, ) (Entered: 10/25/2010)
75 TRANSCRIPT of held on 10/1/2010, before Judge DUBOIS. Court Reporter/Transcriber ANDREA MACK. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/19/2010. Redacted Transcript Deadline set for 11/29/2010. Release of Transcript Restriction set for 1/27/2011. (kk, ) (Entered: 11/01/2010)
76 Notice of Filing of Official Transcript with Certificate of Service re 75 Transcript − PDF, 11/1/2010 Entered and Copies Emailed and Mailed.. (kk, ) (Entered: 11/01/2010)