U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:16-cv-03577

Hernandez et al v City Of Houston Assigned to: Judge Kenneth M Hoyt Referred to: Magistrate Judge Dena Hanovice Palermo (Settlement) Cause: 42:1983 Civil Rights Act

Date Filed: 12/05/2016 Date Terminated: 08/13/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Juan Hernandez on behalf of themselves and all other similarly situated

represented by Anna Rotman Kirkland and Ellis 609 Main Street Suite 4500 Houston, TX 77002 713-836-3748 Email: anna.rotman@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick King Quinn Emanuel Urquhart & Sullivan, LLP 711 Louisiana Street Ste 500 Houston, TX 77002 713-221-7000 Email: pking@kirkland.com TERMINATED: 07/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Bernhardt Texas Fair Defense Project 314 E Highland Mall Blvd Ste 108 Austin, TX 78752 512-637-5220 Email: rbernhardt@fairdefense.org TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan C Downer Civil Rights Corps 910 17th Street, N.W. #200 Washington, DC 20006 202 656-9691 Email: ryan@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanne Ashley Pringle Texas Fair Defense Project 314 E Highland Mall Ave No. 108 Austin, TX 78752 512-367-5220 ext. 103 Email: springle@fairdefense.org TERMINATED: 05/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex S. Zuckerman Kirkland Ellis LLP 601 Lexington Ave. New York, NY 10022 212-909-3394 Fax: 212-446-4900 Email: alex.zuckerman@kirkland.com TERMINATED: 08/02/2019 ATTORNEY TO BE NOTICED
Amanda Beth Elbogen Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 212-446-4864 ATTORNEY TO BE NOTICED
Andrew M. Genser Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 212-446-4809 TERMINATED: 06/08/2018

Plaintiff
James Dossett on behalf of themselves and all other similarly situated TERMINATED: 03/03/2017

ATTORNEY TO BE NOTICED
Charles Lewis Gerstein Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Washington, DC 20009 202-894-6142 Email: charlie@civilrightscorps.org ATTORNEY TO BE NOTICED
Christine P Payne Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 312-862-2000 Email: cpayne@kirkland.com TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Leonora Cohen Kirkland and Ellis LLP 2049 Century Park East Suite 3700 Los Angeles, CA 90071 310-552-4200 ATTORNEY TO BE NOTICED
Stephanie M Shimada Kirkland & Ellis LLP 601 Lexington Ave New York, NY 10022 212-390-4515 Email: stephanie.shimada@kirkland.com ATTORNEY TO BE NOTICED
represented by Patrick King (See above for address) TERMINATED: 07/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Bernhardt (See above for address)

Plaintiff DeQuan Kirkwood

TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan C Downer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Beth Elbogen (See above for address) TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Andrew M. Genser (See above for address) TERMINATED: 06/08/2018 ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
Christine P Payne (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Susanne Ashley Pringle (See above for address) TERMINATED: 05/29/2019 ATTORNEY TO BE NOTICED
represented by Anna Rotman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick King (See above for address) TERMINATED: 07/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanne Ashley Pringle

Plaintiff Manuel Trevino

(See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex S. Zuckerman (See above for address) TERMINATED: 08/02/2019 ATTORNEY TO BE NOTICED
Amanda Beth Elbogen (See above for address) TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Christine P Payne (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Rotman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick King (See above for address) TERMINATED: 07/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanne Ashley Pringle (See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex S. Zuckerman (See above for address) TERMINATED: 08/02/2019 ATTORNEY TO BE NOTICED

Plaintiff Kent Wheatfall

Amanda Beth Elbogen (See above for address) TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Christine P Payne (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Rotman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick King (See above for address) TERMINATED: 07/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanne Ashley Pringle (See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex S. Zuckerman (See above for address) TERMINATED: 08/02/2019 ATTORNEY TO BE NOTICED
Amanda Beth Elbogen (See above for address) TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Christine P Payne (See above for address) TERMINATED: 04/11/2019

Plaintiff Eric Aguirre
V. Defendant City Of Houston

ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Rotman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex S. Zuckerman (See above for address) TERMINATED: 08/02/2019 ATTORNEY TO BE NOTICED
Amanda Beth Elbogen (See above for address) TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
Patrick King (See above for address) TERMINATED: 07/02/2019 ATTORNEY TO BE NOTICED
represented by Connica M Lemond Litchfield Cavo One Riverway Suite 1000 Houston, TX 77056 713-418-2098 Fax: 713-418-2001 Email: lemond@litchfieldcavo.com TERMINATED: 07/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean R D Gorman Bracewell LLP 711 Louisiana, Suite 2300 Houston, TX 77002 713-221-1221 Email: sean.gorman@bracewell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeff B Vaden Bracewell LLP 711 Louisiana St Ste 2300 Houston, TX 77002 713-221-1501 Fax: 800-404-3970 Email: jeff.vaden@bracewell.com ATTORNEY TO BE NOTICED
Jennifer F Callan City of Houston Legal Department Tort/Civil Rights Section 900 Bagby, 3rd Floor Houston, TX 77002 (832) 393-6286 Fax: (832) 393-6259 Email: Jennifer.Callan@houstontx.gov ATTORNEY TO BE NOTICED
Jeremy W Dunbar Bracewell LLP 711 Louisiana St Ste 2300 Houston, TX 77002 713-221-1343 Email: jeremy.dunbar@bracewell.com TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Nancy McEvily Davis Bracewell LLP 711 Louisiana St Ste 2300

Houston, TX 77002 713-221-1323 Email: nancy.davis@bracewell.com ATTORNEY TO BE NOTICED

Date Filed 12/05/2016
12/05/2016 12/05/2016 12/05/2016 12/05/2016 12/06/2016 12/06/2016 12/06/2016 12/06/2016 12/06/2016

# Docket Text
1 COMPLAINT against City Of Houston (Filing fee $ 400 receipt number 0541-17608440) filed by Juan Hernandez, James Dossett. (Attachments: # 1 Civil Cover Sheet)(King, Patrick) (Entered: 12/05/2016)
2 Request for Issuance of Summons as to City Of Houston, filed.(King, Patrick) (Entered: 12/05/2016)
3 MOTION for Charles Lewis Gerstein to Appear Pro Hac Vice by James Dossett, Juan Hernandez, filed. Motion Docket Date 12/27/2016. (King, Patrick) (Entered: 12/05/2016)
4 MOTION for Andrew M. Genser to Appear Pro Hac Vice by James Dossett, Juan Hernandez, filed. Motion Docket Date 12/27/2016. (King, Patrick) (Entered: 12/05/2016)
5 MOTION for Amanda B. Elbogen to Appear Pro Hac Vice by James Dossett, Juan Hernandez, filed. Motion Docket Date 12/27/2016. (King, Patrick) (Entered: 12/05/2016)
Summons Issued as to City Of Houston. Issued summons returned to plaintiff by: First-class mail, filed.(hler, 4) (Entered: 12/06/2016)
Summons Issued as to City Of Houston. Issued summons returned to plaintiff by: In person, filed.(bdaniel, 4) (Entered: 12/06/2016)
6 ORDER granting 4 Motion for Andrew M. Genser to Appear Pro Hac Vice. (Signed by Judge Kenneth M Hoyt) Parties notified. (rosaldana, 4) (Entered: 12/07/2016)
8 ORDER granting 3 Motion for Charles Lewis Gerstein to Appear Pro Hac Vice. (Signed by Judge Kenneth M Hoyt) Parties notified.(rosaldana, 4) (Entered: 12/07/2016)
9 ORDER granting 5 Motion for Amanda B. Elbogen to Appear Pro Hac Vice. (Signed by Judge Kenneth M Hoyt) Parties notified. (rosaldana, 4) (Entered: 12/07/2016)

12/07/2016
12/08/2016 01/13/2017 01/19/2017 01/23/2017 01/23/2017 01/27/2017 02/09/2017
02/24/2017 03/01/2017 03/01/2017

7 ORDER for Initial Pretrial and Scheduling Conference by Telephone and Order to Disclose Interested Persons. Counsel who filed or removed the action is responsible for placing the conference call and insuring that all parties are on the line. The call shall be placed to (713)250-5613. Telephone Conference set for 2/6/2017 at 08:45 AM by telephone before Judge Kenneth M Hoyt (Signed by Judge Kenneth M Hoyt) Parties notified.(hcarradi, 4) (Entered: 12/07/2016)
10 NOTICE of Appearance by Susanne Pringle on behalf of James Dossett, Juan Hernandez, filed. (King, Patrick) (Entered: 12/08/2016)
11 CERTIFICATE OF INTERESTED PARTIES by James Dossett, Juan Hernandez, filed.(Bernhardt, Rebecca) (Entered: 01/13/2017)
Summons Issued as to City Of Houston, U.S. Attorney and U.S. Attorney General. Issued summons returned to plaintiff by: In person, filed.(mmapps, 4) (Entered: 01/19/2017)
12 RETURN of Service of SUMMONS Executed as to City Of Houston served on 1/19/2016, answer due 2/9/2016, filed.(King, Patrick) (Entered: 01/23/2017)
13 Unopposed MOTION for Continuance of Conference by James Dossett, Juan Hernandez, filed. Motion Docket Date 2/13/2017. (King, Patrick) (Entered: 01/23/2017)
14 ORDER granting 13 Unopposed MOTION for Continuance of Conference ( Telephone Conference set for 3/6/2017 at 09:00 AM before Judge Kenneth M Hoyt)(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 01/27/2017)
15 MOTION to Dismiss by City Of Houston, filed. Motion Docket Date 3/2/2017. (Attachments: # 1 Proposed Order, # 2 Exhibit 1 - Affidavit Steven Spears, # 3 Exhibit 2 - Search and Arrest Warrant, # 4 Exhibit 3 - Affidavit - Glen Tabor, # 5 Exhibit 4 - Business Records Affidavit Jail Release)(Lemond, Connica) (Entered: 02/09/2017)
16 JOINT DISCOVERY/CASE MANAGEMENT PLAN by James Dossett, Juan Hernandez, filed.(King, Patrick) (Entered: 02/24/2017)
17 Opposed MOTION to Stay Discovery by City Of Houston, filed. Motion Docket Date 3/22/2017. (Attachments: # 1 Proposed Order)(Lemond, Connica) (Entered: 03/01/2017)
18 NOTICE of Dismissal as to James Dossett by James Dossett, filed. (Gerstein, Charles) (Entered: 03/01/2017)

03/01/2017 03/02/2017 03/03/2017 03/03/2017 03/06/2017
03/06/2017 03/15/2017 04/05/2017

19 AMENDED COMPLAINT with Jury Demand against City Of Houston filed by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall.(Gerstein, Charles) (Entered: 03/01/2017)
20 RESPONSE to 15 MOTION to Dismiss filed by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Proposed Order)(Gerstein, Charles) (Entered: 03/02/2017)
21 ORDER granting 17 Motion to Stay Discovery. The Discovery in this matter is STAYED until the Court has ruled on the merits of the defendant's Motion to Dismiss.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/03/2017)
22 ORDER granting 18 Notice of Dismissal as to James Dossett. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/03/2017)
23 ORDER FOLLOWING TELEPHONE SCHEDULING CONFERENCE held on March 6, 2017 at 9:00 a.m. Appearances: Amanda Beth Elbogen, Charles Lewis Gerstein, Suzanne Pringle, Connica Mou Lemond. ETT: 5-7 days. Jury trial. Initial Disclosures due by 3/30/2017. Pltf Expert Witness List due by 10/1/2017. Pltf Expert Report due by 10/1/2017. Deft Expert Witness List due by 11/1/2017. Deft Expert Report due by 11/1/2017. Discovery due by 12/30/2017. Dispositive Motion Filing due by 1/15/2018. Docket Call set for 4/2/2018 at 11:30 AM in Courtroom 11A before Judge Kenneth M Hoyt. Discovery may be extended by agreement of the parties without Court intervention. The dispositive motion deadline and docket call dates, however, may not be extended without leave of Court. Attorney's fee applications are handled on the papers of the parties after notice. Expedited responses are required on all pretrial motions save dispositive motions.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/07/2017)
24 ORDER denying 15 Motion to Dismiss.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/07/2017)
25 Amended MOTION to Dismiss or, in the Alternative, Amended Motion for Summary Judgment by City Of Houston, filed. Motion Docket Date 4/5/2017. (Attachments: # 1 Exhibit A - Affidavit - Amanda Zimmerman, # 2 Exhibit B - Affidavit - Eric Henry, # 3 Exhibit C Affidavit - Steven Spears)(Lemond, Connica) (Entered: 03/15/2017)
26 RESPONSE in Opposition to 25 Amended MOTION to Dismiss or, in the Alternative, Amended Motion for Summary Judgment, filed by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Gerstein, Charles) (Entered: 04/05/2017)

06/06/2017 06/21/2017 07/13/2017 07/14/2017 07/14/2017
07/18/2017 07/20/2017 08/25/2017

27 MEMORANDUM AND ORDER denying 25 Defendant's Amended MOTION to Dismiss or, in the Alternative, Amended Motion for Summary Judgment. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 06/07/2017)
28 STIPULATION re: Scheduling, and Proposed Order re: Scheduling by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed.(Gerstein, Charles) (Entered: 06/21/2017)
29 Agreed MOTION for Protective Order by City Of Houston, filed. Motion Docket Date 8/3/2017. (Attachments: # 1 Proposed Order)(Lemond, Connica) (Entered: 07/13/2017)
30 PROTECTIVE ORDER Granting 29 Agreed MOTION for Protective Order (Signed by Judge Kenneth M Hoyt) Parties notified.(jguajardo, 4) (Entered: 07/14/2017)
31 AMENDED SCHEDULING ORDER. Initial Disclosures due by 3/30/2017. Parties Certify that production of documents responsive to requests for production of documents is complete 7/14/2017. Privilege Logs Exchanged 7/21/2017. Fact depositions begin 7/24/2017. Plaintiffs move for class certification and serve any supporting expert reports 8/25/2017. Defendant files opposition to class certification and serves any opposing expert reports 9/8/2017. Fact discovery closes 9/15/2017. Deadline for deposing class certification experts 9/22/2017. Plaintiffs file reply brief in support of class certification and serve any supporting expert reports 9/29/2017. Pltf Expert Witness List & Report due by 10/1/2017. Deft Expert Witness List & Report due by 11/1/2017. Deadline for Plaintiffs to submit reply expert reports, if any 11/15/2017. Discovery due by 12/30/2017. Dispositive Motion Filing due by 1/15/2018. Docket Call set for 4/2/2018 at 11:30 AM in Courtroom 11A before Judge Kenneth M Hoyt. Jury Trial (To Be Determined). (Signed by Judge Kenneth M Hoyt) Parties notified.(jguajardo, 4) (Entered: 07/14/2017)
32 MOTION for Alex S. Zuckerman to Appear Pro Hac Vice by James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 8/8/2017. (King, Patrick) (Entered: 07/18/2017)
33 ORDER Granting 32 Motion for Alex S. Zuckerman to Appear Pro Hac Vice.(Signed by Judge Kenneth M Hoyt) Parties notified.(jguajardo, 4) (Entered: 07/20/2017)
34 STIPULATION re: Scheduling by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Attachments: # 1 Proposed Order)(Gerstein, Charles) (Entered: 08/25/2017)

09/20/2017
10/17/2017
10/23/2017 11/03/2017 11/03/2017 11/08/2017

35 SCHEDULING ORDER granting 34 STIPULATION. Certification that Production of Documents responsive to Requests are complete by 12/15/2017. Privilege logs exchanged by 12/22/2017. Fact Depositions begin by 1/16/2018. Pltf Move for Class Certification by 2/23/2018. Deft Opposition to Class Certification by 3/9/2018. Fact Discovery closes by 3/16/2018. Deadline for Deposing Class Certification Experts 3/23/2018. Reply Brief in support of class certification due by 3/30/2018. Pltf Expert Report due by 4/13/2018. Deft Expert Report due by 5/14/2018. Reply Expert Reports due by 5/29/2018. Discovery due by 6/8/2018. Dispositive Motion Filing due by 6/29/2018. Docket Call TBD. Jury Trial TBD.(Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4) (Entered: 09/20/2017)
36 WITHDRAWN per Notice #39 MOTION for Entry of Order re: PLAINTIFFS' MOTION FOR ENTRY OF ESI PROTOCOL AND TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT THERETO by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 11/7/2017. (Attachments: # 1 Exhibit A Proposed ESI Protocol, # 2 Exhibit B COH0000506, # 3 Exhibit C September 27, 2017 Letter to C. Lemond, # 4 Exhibit D COH0000003, # 5 Exhibit E COH0000957, # 6 Exhibit F October 12, 2017 Letter to C. Lemond)(King, Patrick) Modified on 11/7/2017 (chorace). (Entered: 10/17/2017)
37 ORDER for Expedited Response; Motion-related deadline set re: 36 MOTION for Entry of Order re: Plaintiffs' Motion for Entry of ESI PROTOCOL and to Compel Production of Documents Pursuant thereto. Response to Motion due by 11/2/2017.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 10/23/2017)
38 Agreed MOTION for Entry of Order re: Production of Electronically Stored Information by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 11/24/2017. (Attachments: # 1 Exhibit A. Proposed Order)(King, Patrick) (Entered: 11/03/2017)
39 NOTICE OF WITHDRAWAL re: 36 MOTION for Entry of Order re: PLAINTIFFS' MOTION FOR ENTRY OF ESI PROTOCOL AND TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT THERETO by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (King, Patrick) (Entered: 11/03/2017)
40 STIPULATION AND ORDER CONCERNING PRODUCTION OF ELECTRONICALLY STORED INFORMATION 38 Agreed MOTION for Entry of Order re: Production of Electronically Stored

11/15/2017 11/20/2017 02/13/2018 02/23/2018 02/23/2018 02/26/2018 02/28/2018
02/28/2018 03/01/2018

Information. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 11/08/2017)
41 MOTION for Rebecca Bernhardt to Withdraw as Attorney by James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 12/6/2017. (Attachments: # 1 Proposed Order)(Pringle, Susanne) (Entered: 11/15/2017)
42 ORDER granting 41 Motion to Withdraw as Attorney. Attorney Rebecca Bernhardt terminated. (Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4) (Entered: 11/20/2017)
43 NOTICE of Change in Bar Status by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Gerstein, Charles) (Entered: 02/13/2018)
44 Agreed MOTION for Extension of Time Class Certification Deadline by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 3/16/2018. (Gerstein, Charles) (Entered: 02/23/2018)
45 PROPOSED ORDER re: 44 Agreed MOTION for Extension of Time Class Certification Deadline, filed.(Gerstein, Charles) (Entered: 02/23/2018)
46 ORDER granting 44 Agreed MOTION for Extension of Time Class Certification Deadline. It is ORDERED that the class certification briefing deadline is extended until 21 days after the City certifies its document production is complete. (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4) (Entered: 02/26/2018)
47 MOTION to Compel Production and For Discovery Sanctions by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 3/21/2018. (Attachments: # 1 Exhibit A Plaintiffs' First Set of Requests for Production, # 2 Exhibit B Plaintiffs' First Set of Interrogatories, # 3 Exhibit C July 31 2017 Letter, # 4 Exhibit D September 27 2017 Letter, # 5 Exhibit E October 12 2017 Letter, # 6 Exhibit F November 17 2017 Letter, # 7 Exhibit G November 30 2017 Letter, # 8 Exhibit H December 14 2017 Letter, # 9 Exhibit I January 18 2017 Letter, # 10 Exhibit J January 25 2018 Letter)(King, Patrick) (Entered: 02/28/2018)
48 PROPOSED ORDER re: 47 MOTION to Compel Production and For Discovery Sanctions, filed.(King, Patrick) (Entered: 02/28/2018)
49 ORDER for Expedited Response; Motion-related deadline set re: 47 MOTION to Compel Production and For Discovery Sanctions;

03/09/2018 03/09/2018 03/14/2018 03/20/2018 04/03/2018
04/04/2018
04/06/2018 04/09/2018 04/10/2018

Response to Motion due by 3/12/2018.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/01/2018)
50 NOTICE of Appearance by Jennifer F. Callan on behalf of City Of Houston, filed. (Callan, Jennifer) (Entered: 03/09/2018)
51 RESPONSE to 47 MOTION to Compel Production and For Discovery Sanctions filed by City Of Houston. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Callan, Jennifer) (Entered: 03/09/2018)
52 REPLY in Support of 47 MOTION to Compel Production and For Discovery Sanctions, filed by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (King, Patrick) (Entered: 03/14/2018)
53 NOTICE of Setting as to 47 MOTION to Compel Production and For Discovery Sanctions. Parties notified. Motion Hearing set for 4/3/2018 at 09:00 AM in Courtroom 11A before Judge Kenneth M Hoyt, filed. (chorace) (Entered: 03/20/2018)
54 Minute Entry for proceedings held before Judge Kenneth M Hoyt. MOTION HEARING held on 4/3/2018. The Court takes this matter under advisement. Appearances: Jennifer F Callan, Connica Mou Lemond, Charles Lewis Gerstein, Amanda Beth Elbogen, Patrick King, Alex S. Zuckerman.(Court Reporter: G. Dye), filed.(chorace) (Entered: 04/03/2018)
55 AO 435 TRANSCRIPT REQUEST by Patrick J. King; Alex S. Zuckerman for Transcript of Motion Hearing on 4/3/18 before Judge Kenneth M. Hoyt. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Gayle Dye, filed. (King, Patrick) (Entered: 04/04/2018)
56 TRANSCRIPT re: Motion Hearing held on April 3, 2018, before Judge Kenneth M Hoyt. Court Reporter/Transcriber Dye. Ordering Party Alex Zuckerman Release of Transcript Restriction set for 7/5/2018., filed. (gdye, ) (Entered: 04/06/2018)
57 Notice of Filing of Official Transcript as to 56 Transcript. Party notified, filed. (hcarr, 4) (Entered: 04/09/2018)
58 MEMORANDUM AND ORDER granting 47 MOTION to Compel Production and For Discovery Sanctions. Within twenty (20) days of the entry of this Order, the defendant shall produce all non-privileged documents responsive to the plaintiffs requests for production nos. 1-4, 8 and 9 in accordance with the Courts November 8, 2017, ESI Order 40 . Any claim of privilege must be accompanied by a privilege

05/16/2018
05/25/2018 06/07/2018 06/07/2018 06/08/2018 06/08/2018 06/09/2018

log.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 04/10/2018)
59 MOTION to Enforce The Court's April 10, 2018 Order as to 58 Memorandum and Order, by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 6/6/2018. (Attachments: # 1 Exhibit A - 2018-04-03 Motion to Compel Transcript, # 2 Exhibit B - 2018-04-27 C. Lemond Response to Letter, # 3 Exhibit C - 2018-04-11 A. Elbogen Email, # 4 Exhibit D - 2018-0430 City Hit Report, # 5 Exhibit E - 2018-04-26 C. Lemond Email, # 6 Exhibit F - 2018-04-26 Letter to C. Lemond, # 7 Exhibit G - 201805-02 A. Elbogen Email, # 8 Exhibit H - Contact List Verify Documents, # 9 Exhibit I - COH0000028, # 10 Exhibit J COH0000246, # 11 Exhibit K - COH0000602, # 12 Exhibit L COH0000914)(King, Patrick) (Entered: 05/16/2018)
60 NOTICE of Setting as to 59 MOTION to Enforce The Court's April 10, 2018 Order as to 58 Memorandum and Order, Parties notified. Motion Hearing set for 6/11/2018 at 11:00 AM in Courtroom 11A before Judge Kenneth M Hoyt, filed. (chorace) (Entered: 05/25/2018)
61 NOTICE of Resetting as to 59 MOTION to Enforce The Court's April 10, 2018 Order as to 58 Memorandum and Order. Parties notified. Motion Hearing set for 6/13/2018 at 01:30 PM in Courtroom 11A before Judge Kenneth M Hoyt, filed. (chorace) (Entered: 06/07/2018)
62 RESPONSE to 59 MOTION to Enforce The Court's April 10, 2018 Order as to 58 Memorandum and Order, filed by City Of Houston. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lemond, Connica) (Entered: 06/07/2018)
63 WITHDRWAN per Order 74 MOTION to Strike 62 Response to Motion by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 6/29/2018. (Attachments: # 1 Proposed Order Proposed Order on Motion to Strike)(King, Patrick) Modified on 6/21/2018 (chorace). (Entered: 06/08/2018)
64 NOTICE OF WITHDRAWAL OF APPEARANCE OF ANDREW M. GENSER by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (King, Patrick) (Entered: 06/08/2018)
65 NOTICE of Appearance by Christine P. Payne on behalf of Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (King, Patrick) (Entered: 06/09/2018)

06/11/2018 06/12/2018 06/13/2018
06/13/2018 06/14/2018 06/14/2018 06/14/2018 06/14/2018 06/15/2018

66 RESPONSE in Opposition to 63 MOTION to Strike 62 Response to Motion , filed by City Of Houston. (Attachments: # 1 Proposed Order)(Lemond, Connica) (Entered: 06/11/2018)
67 REPLY in Support of 59 MOTION to Enforce The Court's April 10, 2018 Order as to 58 Memorandum and Order,, filed by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Exhibit A - 4/3/18 Hearing Transcript Excerpts)(King, Patrick) (Entered: 06/12/2018)
68 Minute Entry for proceedings held before Judge Kenneth M Hoyt. MOTION HEARING held on 6/13/2018. The pltfs' oral motion to withdraw its motion to strike the defendant's response is Granted. The Court determines that the City has failed to comply with the Court's Order. Within 10 days of the date of this hearing, the pltfs' shall file under seal their proposed findings and proposed remedy. The City may file under seal, its response to the pltfs' findings w/i 10 days of the pltfs' filings. The Court takes this matter under advisement. Appearances: Jennifer F Callan, Connica Mou Lemond, Christine P Payne, Charles Lewis Gerstein, Amanda Beth Elbogen, Alex S. Zuckerman.(Court Reporter: H. Alcaraz), filed.(chorace) (Entered: 06/13/2018)
74 ORDER withdrawing 63 MOTION to Strike 62 Response to Motion .(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 06/21/2018)
69 ADMINISTRATIVE TRANSCRIPT/RECORD from Kirkland and Ellis LLP by Juan Hernandez, filed.(King, Patrick) (Entered: 06/14/2018)
70 AO 435 TRANSCRIPT REQUEST by City of Houston for Transcript of 04.03.2018 Hearing Transcript. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Contract Court Reporter, filed. (Callan, Jennifer) (Entered: 06/14/2018)
71 TRANSCRIPT re: Motion Hearing held on 6/13/18 before Judge Kenneth M Hoyt. Court Reporter Heather Alcaraz. Ordering Party Kasia Olkowski. Release of Transcript Restriction set for 9/12/2018, filed. (halcaraz, ) (Entered: 06/14/2018)
72 AO 435 TRANSCRIPT REQUEST by City of Houston for Transcript of 06.13.2018 Hearing Transcript. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Contract Court Reporter, filed. (Callan, Jennifer) (Entered: 06/14/2018)
73 Notice of Filing of Official Transcript as to 71 Transcript. Party notified, filed. (dhansen, 4) (Entered: 06/15/2018)

06/22/2018 06/22/2018 07/03/2018 07/03/2018
07/05/2018
08/30/2018 10/08/2018 10/08/2018 10/18/2018 12/10/2018
12/11/2018 12/11/2018

75 Sealed Event, filed. (Entered: 06/22/2018)
76 Sealed Event, filed. (With attachments) (Entered: 06/22/2018)
77 Sealed Event, filed. (With attachments) (Entered: 07/03/2018)
78 Unopposed MOTION for Connica Lemond to Withdraw as Attorney( Motion Docket Date 7/24/2018.), Unopposed MOTION to Substitute Attorney Jennifer Callan in place of Connica Lemond by City Of Houston, filed. (Attachments: # 1 Proposed Order)(Lemond, Connica) (Entered: 07/03/2018)
79 ORDER granting 78 Unopposed MOTION for Connica Lemond to Withdraw as Attorney; granting 78 Unopposed MOTION to Substitute Attorney Jennifer Callan in place of Connica Lemond for City Of Houston...*** Attorney Connica Mou Lemond terminated. (Signed by Judge Kenneth M Hoyt)( Motion Docket Date 7/24/2018.), Parties notified.(sanderson, 4) (Entered: 07/05/2018)
80 ORDER AND FINDINGS ON SANCTIONS AND MOTIONS 59 Motion to Enforce.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 08/30/2018)
81 NOTICE of attorney substitution by City Of Houston. Attorney Sean Gorman added, filed. (Gorman, Sean) (Entered: 10/08/2018)
82 NOTICE of Appearance by Nancy McEvily Davis on behalf of City Of Houston, filed. (Davis, Nancy) (Entered: 10/08/2018)
83 NOTICE of Appearance by Jeremy W. Dunbar on behalf of City Of Houston, filed. (Dunbar, Jeremy) (Entered: 10/18/2018)
84 Unopposed MOTION to Amend by James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 12/31/2018. (Attachments: # 1 Exhibit Exhibit 1 Proposed Order, # 2 Exhibit Exhibit 2 - Proposed Second Amended Complaint, # 3 Exhibit Exhibit 3 - Redline of Amended Complaints)(King, Patrick) (Entered: 12/10/2018)
85 Amended PROPOSED ORDER re: 84 Unopposed MOTION to Amend, filed.(King, Patrick) (Entered: 12/11/2018)
86 MOTION to Certify Class by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 1/2/2019. (Attachments: # 1 Proposed Order, # 2 Exhibit 1 - COH0020250, # 3 Exhibit 2 - Affidavit of Steven Spears, # 4 Exhibit 3 COH0001043, # 5 Exhibit 4 - COH0000721, # 6 Exhibit 5 -

12/13/2018
12/13/2018 12/13/2018
12/14/2018 12/17/2018 12/19/2018 12/20/2018 12/20/2018

COH0000471, # 7 Exhibit 6 - COH0000246, # 8 Exhibit 7 COH0000383, # 9 Exhibit 8 - COH0000506, # 10 Exhibit 9 COH0000597, # 11 Affidavit Declaration of Alex Zuckerman, # 12 Exhibit A - Kirkwood HC Records, # 13 Exhibit B - Trevino HC Records, # 14 Exhibit C - Wheatfall HC Records, # 15 Exhibit D Hernandez HC Records, # 16 Exhibit E - Aguirre HC Records, # 17 Affidavit Declaration of Amanda Elbogen, # 18 Affidavit Declaration of Charles Gerstein, # 19 Affidavit Declaration of Susanne Pringle)(King, Patrick) (Entered: 12/11/2018)
88 ORDER granting 84 Unopposed Motion for Leave to File an Amended Complaint. It is FURTHER ORDERED that the clerk is directed to file the plaintiffs Second Amended Complaint, attached as Exhibit 2 to their motion for leave, as of the date of this Order. (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4) (Entered: 12/18/2018)
89 Second AMENDED COMPLAINT against City Of Houston filed by DeQuan Kirkwood, Juan Hernandez, Kent Wheatfall, Manuel Trevino, Eric Aguirre.(sanderson, 4) (Entered: 12/18/2018)
90 ORDER granting 84 Motion to Amend Complaint. Pursuant to the parties agreement, the defendants motion or answer in response to the Second Amended Complaint 89 is due forty-five days after this Order.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 12/18/2018)
87 MOTION for Stephanie M. Shimada to Appear Pro Hac Vice by Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 1/4/2019. (King, Patrick) (Entered: 12/14/2018)
91 ORDER granting 87 Motion for Stephanie M Shimada to Appear Pro Hac Vice. (Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4) (Entered: 12/18/2018)
92 MOTION for Ryan C. Downer to Appear Pro Hac Vice by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 1/9/2019. (Gerstein, Charles) (Entered: 12/19/2018)
93 STIPULATION re: Extension of Time for Response and Reply to Plaintiffs' Motion for Class Certification by City Of Houston, filed.(Gorman, Sean) (Entered: 12/20/2018)
***Set/Reset Deadlines as to 86 MOTION to Certify Class : Responses due by 2/1/2019; Replies due by 2/15/2019. (chorace) (Entered: 12/20/2018)

12/20/2018

94 Opposed MOTION for Reconsideration of 80 Order on Motion to Enforce by City Of Houston, filed. Motion Docket Date 1/10/2019. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Proposed Order)(Gorman, Sean) (Entered: 12/20/2018)

12/20/2018

95 Opposed MOTION for Leave to Depose Incarcerated Persons by City Of Houston, filed. Motion Docket Date 1/10/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 12/20/2018)

12/21/2018

96 ORDER for Expedited Response re: 94 Opposed MOTION for Reconsideration of 80 Order on Motion to Enforce. Response to Motion due by 12/31/2018.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 12/21/2018)

12/21/2018

97 ORDER for Expedited Response re: 95 Opposed MOTION for Leave to Depose Incarcerated Persons. Response to Motion due by 12/31/2018.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 12/21/2018)

12/31/2018

98 RESPONSE in Opposition to 94 Opposed MOTION for Reconsideration of 80 Order on Motion to Enforce, filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Affidavit Declaration of Amanda Elbogen, # 2 Exhibit A - Oct. 9, 2018 Letter from A. Elbogen, # 3 Exhibit B - Dec. 4, 2018 Email from A. Elbogen, # 4 Exhibit C Apr. 3, 2018 Hearing Transcript Excerpt, # 5 Exhibit D - Dec. 21, 2018 Rogers Deposition Transcript Excerpts, # 6 Exhibit E - Dec. 20, 2018 Zimmerman Deposition Transcript Excerpts, # 7 Exhibit F - Dec. 19, 2018 Follis Deposition Transcript Excerpts, # 8 Exhibit G - Dec. 13, 2018 Spears Deposition Transcript Excerpts)(King, Patrick) (Entered: 12/31/2018)

12/31/2018

99 RESPONSE to 95 Opposed MOTION for Leave to Depose Incarcerated Persons filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Affidavit Declaration of Amanda Elbogen, # 2 Exhibit A - 12-26-18 Email from S. Wilkinson, # 3 Exhibit B - 9-13-18 Email and Letter from A. Elbogen, # 4 Exhibit C - 9-19-18 Email from J. Callan, # 5 Exhibit D - 10-9-18 Letter from J. Callan, # 6 Exhibit E - 12-4-18 Email from A. Elbogen)(King, Patrick) (Entered: 12/31/2018)

01/03/2019

100 REPLY in Support of 94 Opposed MOTION for Reconsideration of 80 Order on Motion to Enforce, filed by City Of Houston. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Gorman, Sean) (Entered: 01/03/2019)

01/03/2019 101 REPLY in Support of 95 Opposed MOTION for Leave to Depose Incarcerated Persons, filed by City Of Houston. (Gorman, Sean) (Entered: 01/03/2019)

01/07/2019

102 MOTION for Leonora Cohen to Appear Pro Hac Vice by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 1/28/2019. (King, Patrick) (Entered: 01/07/2019)

01/09/2019

103 ORDER granting 102 Motion for Leonora Cohen to Appear Pro Hac Vice.(Signed by Judge Kenneth M Hoyt) Parties notified.(jdav, 4) (Entered: 01/10/2019)

01/10/2019 104 ORDER denying 94 Defendant's Motion for Reconsideration of the Courts August 30, 2018 Sanctions Order.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 01/10/2019)

01/14/2019 105 ORDER Granting 92 Motion for Ryan C. Downer to Appear Pro Hac Vice.(Signed by Judge Kenneth M Hoyt) Parties notified.(jguajardo, 4) (Entered: 01/14/2019)

01/30/2019

106 STIPULATION re: Extension of Time for Response and Reply to Plaintiffs' Motion for Class Certification by City Of Houston, filed.(Gorman, Sean) (Entered: 01/30/2019)

01/30/2019

***Per Stipulation 106 Set/Reset Deadlines as to 86 MOTION to Certify Class : Responses due by 2/8/2019. Replies due by 3/1/2019. (chorace) (Entered: 01/31/2019)

01/31/2019

107 ORDER granting 95 Motion for Leave to Depose Incarcerated Persons. ORDERED that the deposition of DeQuan Kirkwood, TDCJ No. 02116094, shall occur on January 22, 2019, or as soon thereafter as agreeable, beginning at 9:30 a.m., at the Ferguson Unit, located at 12120 Savage Drive, Midway, Texas 75852. Mr. Kirkwood shall be made available for deposition for no less than two hours on the relevant subject matter; ORDERED that the deposition of Manuel Trevino, TDCJ No. 02229378, shall occur on January 23, 2019, or as soon thereafter as agreeable, beginning at 9:30 a.m., at the East Texas Treatment Facility located at 900 Industrial Drive, Henderson, Texas 75652. Mr. Trevino shall be made available for deposition for no less than two hours on the relevant subject matter; ORDERED that the deposition of Kent Wheatfall, SPN 00550480, shall occur on January 24, 2019, or as soon thereafter as agreeable, beginning at 9:30 a.m., at jail number JA09/5D1A01SH, located at 1200 Baker Street, Houston, Texas 77002. Mr. Wheatfall shall be available for deposition for no less than two hours on the relevant subject matter.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 01/31/2019)

02/01/2019 108 ANSWER to 89 Amended Complaint/Counterclaim/Crossclaim etc. by City Of Houston, filed.(Gorman, Sean) (Entered: 02/01/2019)

02/04/2019

109 MOTION Partially Unopposed Motion for Entry of a Scheduling Order by City Of Houston, filed. Motion Docket Date 2/25/2019. (Gorman, Sean) (Entered: 02/04/2019)

02/04/2019

110 PROPOSED ORDER /Order Granting The City of Houston's Partially Unopposed Motion for Entry of a Scheduling Order re: 109 MOTION Partially Unopposed Motion for Entry of a Scheduling Order, filed.(Gorman, Sean) (Entered: 02/04/2019)

02/06/2019

111 Order Granting 109 MOTION Partially Unopposed Motion for Entry of a Scheduling Order. ETT: 5-7 days of Evidence. Jury Trial. Opposition to class certification due 2/8/2019. Plaintiff's reply brief in support of class certification due 3/1/2019. Pltf Expert Witness List due by 3/15/2019. Pltf Expert Report due by 3/15/2019. Deft Expert Witness List due by 4/19/2019. Deft Expert Report due by 4/19/2019. Discovery due by 5/17/2019. Mediation due by 5/24/2019. Agreed Mediator due by 6/17/2019 Docket Call set for 7/8/2019 at 11:30 AM in Courtroom 11A before Judge Kenneth M Hoyt(Signed by Judge Kenneth M Hoyt) Parties notified.(kpicota, 4) (Entered: 02/07/2019)

02/08/2019

112 RESPONSE in Opposition to 86 MOTION to Certify Class, filed by City Of Houston. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Proposed Order)(Gorman, Sean) (Entered: 02/08/2019)

02/17/2019

113 MOTION For In Camera Review by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 3/11/2019. (Attachments: # 1 Exhibit A - Overview of Privilege Dispute, # 2 Exhibit B - Chart of the City's Privilege Claims, # 3 Exhibit C - 12-18-2018 Letter from N. Davis, # 4 Exhibit D - 1219-2018 Email from A. Elbogen, # 5 Exhibit E - 12-19-2018 Email from J. Dunbar, # 6 Exhibit F - 07-27-2017 Email from A. Elbogen, # 7 Exhibit G - 01-02-2019 Letter from A. Elbogen, # 8 Exhibit H - 0107-2019 Letter from N. Davis, # 9 Exhibit I - 01-14-2019 Email from J. Dunbar, # 10 Exhibit J - 01-22-2019 Email from A. Zuckerman, # 11 Exhibit K - 01-23-2019 Email from A. Zuckerman, # 12 Exhibit L - 01-25-2019 Letter from A. Zuckerman, # 13 Exhibit M - 01-30-2019 Email from A. Zuckerman, # 14 Exhibit N - 02-04-2019 Letter from N. Davis, # 15 Exhibit O - 02-13-2019 Letter from A. Zuckerman, # 16 Exhibit P - 02-13-2019 Email from N. Davis, # 17 Exhibit Q - 0213-2019 Email from L. Cohen, # 18 Exhibit R - 02-14-2019 Email from N. Davis, # 19 Exhibit S - COH Responses to Plaintiff's First Set of

RFPs, # 20 Exhibit T - COH Responses to Plaintiff's First Set of Roggs, # 21 Exhibit U - COH 1st Supp Responses to Plaintiffs' First Set of RFPs, # 22 Exhibit V - Excerpts of Weatherly Deposition Transcript, # 23 Exhibit W - Excerpts of Montalvo Depostion Transcript, # 24 Exhibit X - 2017-10-12 Letter from A. Elbogen, # 25 Proposed Order)(King, Patrick) (Entered: 02/17/2019)

02/20/2019

114 ORDER granting 113 Defendant's Motion for in camera review. Within ten (10) days of the entry of this Order, [Defendant must produce to the Court all disputed documents that have never been produced to Plaintiffs (Ex. B, Entry Nos. 32-51, 54, 71-73) for in camera review. All remaining documents may immediately be released from quarantine.].(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 02/20/2019)

03/01/2019

115 REPLY in Support of 86 MOTION to Certify Class, filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Exhibit A - Excerpts of Weatherly Deposition Transcript, # 2 Exhibit B - Excerpts of Montalvo Deposition Transcript, # 3 Exhibit C - Excerpts of Dougherty Deposition Transcript, # 4 Exhibit D - 10-20-2016 Email from R. Lewis, # 5 Exhibit E - 02-01-2018 Email from C. Lemond, # 6 Exhibit F Excerpts of Aguirre Deposition Transcript, # 7 Exhibit G - Excerpts of Hernandez Deposition Transcript, # 8 Exhibit H - Excerpts of Spears Deposition Transcript, # 9 Exhibit I - 09-30-2016 Email from P. Dougherty, # 10 Exhibit J - Excerpts of Follis Deposition Transcript, # 11 Exhibit K - Excerpts of Rogers Deposition Transcript, # 12 Exhibit L - Excerpts of Zimmerman Deposition Transcript)(King, Patrick) (Entered: 03/01/2019)

03/08/2019

116 MOTION for Leave to File Sur-Reply in Support of Response in Opposition to Motion for Class Certification by City Of Houston, filed. Motion Docket Date 3/29/2019. (Attachments: # 1 Exhibit A - SurReply, # 2 Exhibit 1 - Hernandez Transcript, # 3 Exhibit 2 - Aguirre Transcript, # 4 Proposed Order)(Gorman, Sean) (Entered: 03/08/2019)

03/08/2019

117 RESPONSE to 116 MOTION for Leave to File Sur-Reply in Support of Response in Opposition to Motion for Class Certification , filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Proposed Order)(King, Patrick) (Entered: 03/08/2019)

03/11/2019

118 ORDER granting 116 Motion for Leave to File Sur-Reply in Support of Response in Opposition to Motion for Class Certification. (Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4) (Entered: 03/11/2019)

03/11/2019 119 SURREPLY in Support of Its 112 Response in Opposition to 86 MOTION to Certify Class filed by City Of Houston. (gclair, 4) (Entered: 03/11/2019)

03/13/2019

120 STIPULATION re: Amending Scheduling Order by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Attachments: # 1 Proposed Order)(King, Patrick) (Entered: 03/13/2019)

03/14/2019

121 AMENDED SCHEDULING ORDER On 120 Stipulation ( Pltf Reply Expert Report due by 5/6/2019.)(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 03/14/2019)

04/11/2019 122 NOTICE of Withdrawal of Appearance of Christine P. Payne by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (King, Patrick) (Entered: 04/11/2019)

04/12/2019 123 STIPULATION re: Stipulation of Extension of Time to Designate Experts and Submit Expert Reports by City Of Houston, filed.(Gorman, Sean) (Entered: 04/12/2019)

04/12/2019

***Set/Reset Deadlines per Stipulation 123 : Deft Expert Report due by 4/23/2019. Deft Expert Witness List due by 4/23/2019. Pltf Expert Report due by 5/10/2019. Pltf Expert Witness List due by 5/10/2019. (chorace) (Entered: 04/15/2019)

04/24/2019

124 ORDER. The Court has reviewed the documents submitted by the City for in camera review and finds that the documents are not privileged because there is no showing that the documents are privileged either as confidential communication or under the doctrine of attorney work product. The record, concerning the handling of the documents, also show that any privilege now claimed was waived and that the waiver was not inadvertent in that the City did nothing to prevent the disclosure or, once discovery, rectify, its error.Therefore, the Citys claim that the documents are privileged is Overruled.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 04/24/2019)

04/26/2019 125 MOTION for Reconsideration by City Of Houston, filed. Motion Docket Date 5/17/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 04/26/2019)

04/26/2019

126 MOTION to Stay /the Court's April 24, 2019 Order pending the Court's Ruling on the City's April 26, 2019 Motion for Reconsideration by City Of Houston, filed. Motion Docket Date 5/17/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 04/26/2019)

04/26/2019

127 MOTION to Compel by Eric Aguirre, James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 5/17/2019. (Attachments: # 1 Exhibit Ex A, # 2 Exhibit Ex B, # 3 Exhibit Ex C, # 4 Exhibit Ex D, # 5 Exhibit Ex E, # 6 Exhibit Ex F, # 7 Exhibit Ex G, # 8 Exhibit Ex H, # 9 Exhibit Ex I, # 10 Exhibit Ex J, # 11 Exhibit Ex K, # 12 Exhibit Ex L, # 13 Exhibit Ex M, # 14 Exhibit Ex N, # 15 Exhibit Ex O, # 16 Exhibit Ex P, # 17 Exhibit Ex Q, # 18 Exhibit Ex R, # 19 Exhibit Ex S, # 20 Exhibit Ex T, # 21 Proposed Order Proposed Order)(King, Patrick) (Entered: 04/26/2019)

04/29/2019

128 ORDER for Expedited Response re: 125 City of Houston's MOTION for Reconsideration of the Court's April 24, 2019 Order. Response to Motion due by 5/9/2019.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 04/29/2019)

04/29/2019 129 ORDER for Expedited Response re: 127 Plaintiffs MOTION to Compel. Response to Motion due by 5/9/2019.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 04/29/2019)

05/01/2019

130 MOTION for Susanne A Pringle to Withdraw as Attorney by Eric Aguirre, James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 5/22/2019. (Attachments: # 1 Proposed Order)(Pringle, Susanne) (Entered: 05/01/2019)

05/08/2019

131 RESPONSE to 126 MOTION to Stay /the Court's April 24, 2019 Order pending the Court's Ruling on the City's April 26, 2019 Motion for Reconsideration, 125 MOTION for Reconsideration filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Proposed Order)(King, Patrick) (Entered: 05/08/2019)

05/09/2019

132 ORDER granting 126 Motion to Stay the Court's April 24, 2019 Order pending the Courts Ruling on the Citys April 26, 2019 Motion for Reconsideration (Dkt. No. 126).(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 05/09/2019)

05/09/2019

133 RESPONSE in Opposition to 127 MOTION to Compel, filed by City Of Houston. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Gorman, Sean) (Entered: 05/09/2019)

05/13/2019 134 REPLY in Support of 125 MOTION for Reconsideration, filed by City Of Houston. (Gorman, Sean) (Entered: 05/13/2019)

05/14/2019

135 REPLY in Support of 127 MOTION to Compel, filed by Eric Aguirre, James Dossett, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(King, Patrick) (Entered: 05/14/2019)

05/21/2019

136 STIPULATION re: Joint Request to Amend Scheduling Order by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Attachments: # 1 Proposed Order)(King, Patrick) (Entered: 05/21/2019)

05/23/2019

137 STIPULATION AND AMENDED SCHEDULING ORDER. ETT: 5-7 days. Jury trial. Mediation due by 7/19/2019; Dispositive Motion Filing due by 6/28/2019; Docket Call set for 9/9/2019 at 11:30 AM in Courtroom 11A before Judge Kenneth M Hoyt.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 05/23/2019)

05/24/2019

138 ORDER denying 125 Defendant's Motion for Reconsideration of the Court's April 24, 2019 Order and Ordering Defendant to Produce Documents.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 05/24/2019)

05/24/2019

139 EMERGENCY MOTION by City Of Houston, filed. Motion Docket Date 6/14/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 05/24/2019)

05/24/2019

140 ORDER granting 139 The City's Emergency Stay the Courts May 24, 2019 Order Pending Resolution of the Citys Petition for Writ of Mandamus.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 05/24/2019)

05/29/2019 141 ORDER granting 130 Motion to Withdraw as Attorney. Attorney Susanne Ashley Pringle is withdrawn as counsel. (Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4) (Entered: 05/29/2019)

06/17/2019

142 ORDER staying Plaintiffs' Motion to Compel pending appeal 127 .(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 06/17/2019)

06/18/2019

143 Fifth Circuit Court ORDER - PER CURIAM Advising We GRANT the City's petition and VACATE the district court's 4/24/2019 and 5/24/2019 orders as theypertain to the documents contained in TAb 3 of Exhibit A. The City's Petition is DENIED in all other respects. We further REMAND this matter to the district court for further proceedings consistent with this opinion. (USCA No. 19-20377), filed.(dnoriega, 1) (Entered: 06/18/2019)

06/20/2019

144 NOTICE of Setting as to 143 USCA Letter,. Parties notified. Telephone Conference set for 6/27/2019 at 09:00 AM Courtroom 11A before Judge Kenneth M Hoyt, filed. ()n "Meet-Me" Line) (chorace) (Entered: 06/20/2019)

06/26/2019

145 MOTION for Summary Judgment by City Of Houston, filed. Motion Docket Date 7/17/2019. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K)(Gorman, Sean) (Entered: 06/26/2019)

06/27/2019

146 ORDER FOLLOWING TELEPHONE CONFERENCE held on June 27, 2019 at 9:00 a.m. Appearances: Martin Boles, Jeffrey Vaden, Charles Lewis Gerstein, Alex S. Zuckerman, Jennifer F Callan, Sean R D Gorman, Nancy McEvily Davis, Jeremy W Dunbar, Ryan C Downer, Leonora Cohen. (Court Reporter: M. Malone) Pursuant to phone conference, the defendant and plaintiffs have completed the discovery exchange addressed in the Fifth Circuit recent opinion. The plaintiffs' motion for additional discovery (Dkt. No. 127) is under advisement. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 06/27/2019)

06/27/2019

147 ORDER granting in part 127 The Plaintiffs' Motion to Compel. Within ten (10) days from the Courts Order, defendant shall produce, for two (2) hours, an adequately prepared 30(b)(6) representative to testify unimpeded by improper instructions about the following: Please refer to the Order.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 06/27/2019)

06/28/2019 148 NOTICE of Appearance by Jeffery B. Vaden on behalf of City Of Houston, filed. (Vaden, Jeff) (Entered: 06/28/2019)

06/28/2019

149 MOTION to Exclude The Expert Report and Testimony of Karen Albert by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 7/19/2019. (Attachments: # 1 Exhibit 1 - Karen Albert Expert Report, # 2 Exhibit 2 - Excerpts of the Deposition Transcript of Karen Albert, # 3 Exhibit 3 Practical Solutions for Public Safety - Projects, # 4 Exhibit 4 - Houston Police Dept. Circular, # 5 Exhibit 5 - Mayor Turner's Report, # 6 Exhibit 6 - Excerpts of the Deposition of Colin Weatherly, # 7 Exhibit 7 - Article re Delayed Inmate Transfers, # 8 Proposed Order)(King, Patrick) (Entered: 06/28/2019)

06/28/2019

150 MOTION for Summary Judgment by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 7/19/2019. (Attachments: # 1 Appendix, # 2 Errata 1,

# 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39)(King, Patrick) (Entered: 06/29/2019)

07/02/2019 151 NOTICE of Appearance by Anna G. Rotman on behalf of Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Rotman, Anna) (Entered: 07/02/2019)

07/02/2019

152 NOTICE of attorney substitution by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. Attorney Anna G. Rotman added. Attorney Patrick King terminated, filed. (King, Patrick) (Entered: 07/02/2019)

07/03/2019

153 ORDER for Expedited Response re: 149 MOTION to Exclude The Expert Report and Testimony of Karen Albert. Response to Motion due by 7/15/2019.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 07/03/2019)

07/03/2019 154 MEMORANDUM OPINION AND ORDER granting 86 Plaintiffs' MOTION to Certify Class. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 07/03/2019)

07/10/2019 155 Opposed MOTION to Stay Pending Interlocutory Appeal by City Of Houston, filed. Motion Docket Date 7/31/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 07/10/2019)

07/11/2019

156 ORDER for Expedited Response re: 155 Opposed MOTION to Stay Pending Interlocutory Appeal. Response to Motion due by 7/22/2019.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 07/11/2019)

07/15/2019

157 Unopposed MOTION for Extension of Time to Extend the Mandatory Mediation Deadline by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 8/5/2019. (Attachments: # 1 Proposed Order)(Rotman, Anna) (Entered: 07/15/2019)

07/15/2019 158 RESPONSE in Opposition to 149 MOTION to Exclude The Expert Report and Testimony of Karen Albert, filed by City Of Houston.

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Gorman, Sean) (Entered: 07/15/2019)

07/16/2019

159 RESPONSE in Opposition to 145 MOTION for Summary Judgment , filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Rotman, Anna) (Entered: 07/16/2019)

07/19/2019

160 ORDER granting 157 Motion to Extend the Mandatory Mediation Deadline. The mandatory mediation deadline of July 19, 2019 is vacated. The parties are to present this referral of mediation to Judge Palermo and to conduct that mediation at such date in August 2019 to be proposed by Judge Palermo and agreed to by the parties.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 07/19/2019)

07/19/2019 161 ORDER REFERRING CASE to Magistrate Magistrate Judge Dena Hanovice Palermo to conduct mediation in the case.(Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4) (Entered: 07/19/2019)

07/19/2019

162 RESPONSE in Opposition to 150 MOTION for Summary Judgment , filed by City Of Houston. (Attachments: # 1 Exhibit A, # 2 Exhibit AA, # 3 Exhibit B, # 4 Exhibit BB, # 5 Exhibit C, # 6 Exhibit CC, # 7 Exhibit D, # 8 Exhibit DD, # 9 Exhibit E, # 10 Exhibit EE, # 11 Exhibit F, # 12 Exhibit FF, # 13 Exhibit G, # 14 Exhibit GG, # 15 Exhibit H, # 16 Exhibit HH, # 17 Exhibit I, # 18 Exhibit J, # 19 Exhibit K, # 20 Exhibit L, # 21 Exhibit M, # 22 Exhibit N, # 23 Exhibit O, # 24 Exhibit P, # 25 Exhibit Q, # 26 Exhibit R, # 27 Exhibit S, # 28 Exhibit T, # 29 Exhibit U, # 30 Exhibit V, # 31 Exhibit W, # 32 Exhibit X, # 33 Exhibit Y, # 34 Exhibit Z)(Gorman, Sean) (Entered: 07/19/2019)

07/22/2019

163 ORDER MEDIATION set for 7/29/2019 at 10:00 AM in Courtroom 702 before Magistrate Judge Dena Hanovice Palermo. Pre Mediation Telephone Conference set for 7/26/2019 at 03:00 PM by telephone before Magistrate Judge Dena Hanovice Palermo. Confidential Mediation Statements due by noon, 7/25/2019.(Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified.(cfelchak, 4) (Entered: 07/22/2019)

07/22/2019

164 RESPONSE in Opposition to 155 Opposed MOTION to Stay Pending Interlocutory Appeal, filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Proposed Order)(Rotman, Anna) (Entered: 07/22/2019)

07/22/2019

165 REPLY in Support of 149 MOTION to Exclude The Expert Report and Testimony of Karen Albert, filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Rotman, Anna) (Entered: 07/22/2019)

07/23/2019 166 REPLY in Support of 145 MOTION for Summary Judgment , filed by City Of Houston. (Gorman, Sean) (Entered: 07/23/2019)

07/23/2019

167 Unopposed MOTION for Extension of Time Mediation by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 8/13/2019. (Attachments: # 1 Proposed Order)(Rotman, Anna) (Entered: 07/23/2019)

07/25/2019

168 ORDER denying 167 Motion for Extension of Time.(Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified.(cfelchak, 4) (Entered: 07/25/2019)

07/26/2019

169 ORDER granting in part 149 Plaintiffs Motion to Exclude the Expert Report and Testimony of Karen Albert. The report will not be admitted into the evidence. Any testimony concerning the reasonableness of a detention must be fact and subject specific. The Court will not permit expert opinions concerning general conditions that may give rise to a question of reasonableness for a delay, unless those conditions were not man-made.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 07/26/2019)

07/26/2019

Minute Entry for proceedings held before Magistrate Judge Dena Hanovice Palermo. TELEPHONE CONFERENCE held on 7/26/2019. Appearances:(ERO:No), filed.(cfelchak, 4) (Entered: 07/26/2019)

07/26/2019 170 REPLY in Support of 150 MOTION for Summary Judgment , filed by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall. (Rotman, Anna) (Entered: 07/26/2019)

07/29/2019

171 REPLY in Support of 155 Opposed MOTION to Stay Pending Interlocutory Appeal, filed by City Of Houston. (Gorman, Sean) (Entered: 07/29/2019)

07/29/2019

Minute Entry for proceedings held before Magistrate Judge Dena Hanovice Palermo. MEDIATION held on 7/29/2019. Negotiations will continue. Appearances: Amanda Beth Elbogen, Alex S. Zuckerman, Jennifer F Callan, Sean R D Gorman, Nancy McEvily Davis, Jeremy W Dunbar, Ryan C Downer.(ERO:No), filed.(cfelchak, 4) (Entered: 07/30/2019)

07/31/2019

Minute Entry for proceedings held before Magistrate Judge Dena Hanovice Palermo. TELEPHONE CONFERENCE held on 7/31/2019. Mediation negotiations continued via phone. Appearances: Amanda Beth Elbogen, Alex S. Zuckerman, Jennifer F Callan, Nancy McEvily Davis, Jeremy W Dunbar, Ryan C Downer.(ERO:No), filed.(cfelchak, 4) (Entered: 07/31/2019)

07/31/2019

172 ORDER Telephone Conference set for 8/1/2019 at 03:00 PM by telephone before Magistrate Judge Dena Hanovice Palermo (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified. (cfelchak, 4) (Entered: 07/31/2019)

07/31/2019

173 ORDER granting Plaintiff's request for Counsel Communications with Class Representative Dequan Kirkwood. (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified. (cfelchak, 4) (Entered: 07/31/2019)

08/02/2019 174 NOTICE of Withdrawal of Appearance of Alex Stone Zuckerman by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Rotman, Anna) (Entered: 08/02/2019)

08/02/2019

175 ORDER Telephone Conference set for 8/5/2019 at 04:00 PM by telephone before Magistrate Judge Dena Hanovice Palermo (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified. (cfelchak, 4) (Entered: 08/02/2019)

08/05/2019

Minute Entry for proceedings held before Magistrate Judge Dena Hanovice Palermo. Mediation negotiations continued by phone on 8/5/2019. Appearances:(ERO:No), filed.(cfelchak, 4) (Entered: 08/05/2019)

08/05/2019 176 ORDER denying 155 Motion to Stay.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 08/05/2019)

08/05/2019

177 AMENDED ORDER Telephone Conference set for 8/6/2019 at 04:00 PM by telephone before Magistrate Judge Dena Hanovice Palermo (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified. (cfelchak, 4) (Entered: 08/05/2019)

08/06/2019

Minute Entry for proceedings held before Magistrate Judge Dena Hanovice Palermo. TELEPHONE CONFERENCE held on 8/6/2019. Settlement reached in Mediation. Terms of agreement under seal in the Clerk's office. Appearances: Jennifer F Callan, Jeremy W Dunbar, Ryan C Downer.(ERO:L. Howard), filed.(cfelchak, 4) (Entered: 08/07/2019)

08/08/2019 178 Joint MOTION to Stay Proceedings by City Of Houston, filed. Motion Docket Date 8/29/2019. (Attachments: # 1 Proposed Order)(Gorman, Sean) (Entered: 08/08/2019)

08/08/2019

179 Order of USCA Per Curiam; Judgment issued as mandate 8/8/19. IT IS ORDERED that the motion for leave to appeal under Fed. R. Civ. P. 23(f) is DENIED (USCA No. 19-90019), filed.(EdnitaPonce, 1) (Entered: 08/08/2019)

08/09/2019

180 NOTICE /Notice of Withdrawal of Appearance of Jeremy W. Dunbar by City Of Houston, filed. (Gorman, Sean) (Entered: 08/09/2019)

08/13/2019

181 ORDER STAYING CASE granting 178 Joint MOTION to Stay Proceedings pending the finalization of Settlement. Case terminated on August 13, 2019. Docket call scheduled for 9/9/2019 is terminated.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 08/13/2019)

01/28/2020

182 NOTICE of Change of Address by Leonora Cohen of Kirkland & Ellis LLP, counsel for Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Rotman, Anna) (Entered: 01/28/2020)

01/28/2020

183 NOTICE of Change of Address by Amanda B. Elbogen of Kirkland & Ellis LLP, counsel for Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Rotman, Anna) (Entered: 01/28/2020)

02/14/2020

184 NOTICE of Withdrawal of Appearance of Amanda Elbogen by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. (Rotman, Anna) (Entered: 02/14/2020)

10/16/2020

185 Joint MOTION Preliminary approval of class-action settlement by Eric Aguirre, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent Wheatfall, filed. Motion Docket Date 11/6/2020. (Attachments: # 1 Proposed Order, # 2 Exhibit 1 Settlement Agreement, # 3 Exhibit 2 Notice of Class Action and Proposed Settlement, # 4 Exhibit 3 Notice of Hearing on Settlement, # 5 Exhibit 4 Class Action Claim Form, # 6 Exhibit 5 Probable Cause Claim Form)(Gerstein, Charles) (Entered: 10/16/2020)

10/22/2020

186 ORDER granting 185 Joint MOTION for Preliminary approval of class-action settlement ( Preliminary Approval/Fairness Hearing set for 12/10/2020 at 09:00 AM in Courtroom 11A before Judge Kenneth M Hoyt)(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace) (Entered: 10/22/2020)

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 Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JUAN HERNANDEZ and JAMES DOSSETT, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
CITY OF HOUSTON, TEXAS,
Defendant.

)

)

)

)

) ) )

Case No. (Class Action)

) )

Jury Trial Demand

)

)

CLASS ACTION COMPLAINT I. INTRODUCTION
Houston police make hundreds of warrantless arrests every week. The Fourth Amendment to the United States Constitution and Texas state law require that anyone arrested without a warrant be released promptly—after 48 hours at the longest—unless a neutral magistrate has concluded that there was probable cause for her arrest and continued detention. Houston has a policy and practice of disregarding this simple obligation. Whenever the Harris County Jail (where Houston sends all warrantless arrestees for probable cause hearings) refuses to accept custody of an arrestee, or whenever Houston’s own arrest procedures are delayed, Houston continues to detain arrestees in its jail cells without probable cause rather than release them after 48 hours as the Constitution requires. In July and August 2016 alone, there were hundreds of people arrested without a warrant who did not receive a probable cause determination within 48 hours but were still kept in City custody.

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 2 of 14
II. NATURE OF THE ACTION1 1. The City of Houston arrests hundreds of people each week without a warrant.
Misdemeanor and felony arrestees in City custody who do not post bail are eventually transferred to the Harris County Jail, where they receive probable cause hearings conducted by video. As a matter of policy and practice, the City of Houston does not provide probable cause determinations for warrantless arrestees in its custody. Probable cause determinations are provided only after an arrestee has been transferred to the Harris County Jail. When it takes longer than 48 hours to transfer an arrestee—and it often does—Houston, as a matter of policy and practice, simply continues to detain the arrestee rather than provide a prompt probable cause hearing or release. Plaintiffs, on behalf of themselves and all others similarly situated, seek compensatory damages for Houston’s policy of detaining warrantless arrestees in violation of the United States Constitution and state law. III. JURISDICTION AND VENUE
2. This is a civil rights action arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
3. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 4. This Court has supplemental jurisdiction over the state law causes of action asserted in this Complaint pursuant to 28 U.S.C. § 1367 because the state law claims form part of the same case or controversy as the federal law claim. IV. PARTIES 5. Named Plaintiff Juan Hernandez is a resident of Houston, Texas.
1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they had personal involvement and on information and belief as to all other matters.
2

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 3 of 14
6. Named Plaintiff James Dossett is a resident of Baytown, Texas. 7. Defendant City of Houston is a municipal corporation organized under the laws of the State of Texas. It is the most populous city in Texas and is located in Harris County, the most populous county in the state. The City operates the Houston Police Department and the Houston Municipal Jail (“Houston Jail”). V. THE CITY OF HOUSTON’S PRACTICES 8. Approximately 80,000 people were arrested by the City of Houston in 2014 and 2015. Almost 90 percent of those people were arrested without a warrant. 9. As a matter of policy and practice, the City transfers felony and misdemeanor arrestees to the Harris County Jail for booking if they are unable to immediately pay a money bail amount set by a predetermined schedule. Harris County then assembles groups of arrestees to appear before a Harris County Hearing Officer for a probable cause hearing. These hearings occur by video link: the arrestees remain in the jail and a hearing officer and an assistant district attorney participate in the hearing from a room in the courthouse. The assistant district attorney reads the alleged facts supporting the charges against the arrestee, and the hearing officer determines whether there was probable cause for the arrest. 10. As a matter of policy and practice, judicial determinations of probable cause for warrantless arrests are not conducted while an individual is in the City of Houston’s custody. They take place only after an arrestee has been transferred to the Harris County Jail. 11. Therefore, any individual arrested without a warrant who remains in the City of Houston’s custody has not had a judicial determination of probable cause.
3

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 4 of 14
12. As a matter of policy and practice, the City does not release people who do not pay bail even if 48 hours or more have passed since their arrest.2
13. The Harris County Jail is notoriously overcrowded.3 In July and August 2016, the
overcrowding was so dire that the County told the Houston Police Department to stop
transferring inmates to the County Jail, and refused to accept busloads of inmates from the Houston Jail. 4 A spokesman for the Harris County Sheriff’s Office told the City that there was
“no room at the inn.”
14. As a result, many individuals arrested by the City without a warrant were kept in
the Houston Jail longer than 48 hours without a judicial determination of probable cause.
Booking records for 2016 show that in July and August alone, Houston held hundreds of inmates
in its jail for longer than three days before transferring them to Harris County.
15. The large number of illegal detentions in July and August of 2016 reflects
Houston’s broad, longstanding, and consistent policy of refusing to release warrantless arrestees
even if more than 48 hours have passed since their warrantless arrest. For example, booking
2 Houston releases all arrestees who can pay predetermined financial conditions of release immediately. It keeps in detention only those who are unable to afford release. At no point do City officials conduct any inquiry into whether arrestees have the ability to pay the predetermined amount of money required for release.
3 See, e.g., St. John Barned-Smith, Inmates transferred, jails overcrowded, Houston Chronicle (Apr. 17, 2016), available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Inmates-transferred-jailsovercrowded-7251977.php; Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015), available at http://www.houstonpress.com/news/why-the-harris-county-jailis-overcrowded-with-legally-innocent-people-7555627; Meagan Flynn, Harris County Sheriff May Hand Over 17Year-Olds to Private Prison Contractor, Houston Press (Sept. 29, 2016), available at http://www.houstonpress.com/news/harris-county-sheriff-may-hand-over-17-year-olds-to-private-prison-contractor8812196; Meagan Flynn, Nearly 200 People Have Died in Harris County Sheriff’s Office Custody in 10 Years, Houston Press (Aug. 1, 2016), available at http://www.houstonpress.com/news/nearly-200-people-have-died-inharris-county-sheriffs-office-custody-in-10-years-8616676.
4 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (Sept. 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowded-thesheriff-delayed-inmate-transfers-8745391 (quoting Sheriff’s Office Spokesman Ryan Sullivan as saying, “We couldn’t keep up with the rate of people we had coming here. . . . We are limited to a certain number of people, and that’s that.”).
4

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 5 of 14
records show that one person arrested on July 25 did not receive a probable cause determination until July 31 (more than 144 hours after arrest); another person, arrested on July 23, did not receive a probable cause determination until July 30 (more than 168 hours after arrest); and at least 35 other people in the months of July and August waited more than four days (96 hours) between arrest and a probable cause determination.
16. The City of Houston “operates under a permanent injunction preventing it from detaining persons without a warrant for more than twenty-four hours without taking the person before a magistrate.” Lockett v. State, 2006 WL 940648 at *1 (Tex. App. Apr. 13, 2006) (citing Sanders v. City of Houston, 543 F. Supp. 694 (S.D. Tex. 1982), aff’d 741 F.2d 1379 (5th Cir. 1984)).
17. As a practical matter, there is no reason to delay probable cause determinations beyond 24 hours, which is the time limit provided by local court rule for such hearings for misdemeanor defendants. See Harris Cnty. Crim. Ct. Rule 4.2. And, within counties that have more than three million residents—Harris County has approximately 4.1 million residents— Texas state law requires the detaining agency to release warrantless misdemeanor arrestees from jail without secured bail if probable cause has not been determined within 36 hours. Tex. Code Crim. Proc. Ann. art. 17.033 (West 2015). Harris County does not combine the probable cause hearing with other pretrial proceedings or the appointment of counsel, and it has robust technological resources to provide judicial probable cause findings well in advance of the 48hour limit, even if an arrestee is not physically brought to the Harris County jail. The County conducts probable cause hearings by video link many times per day, throughout the day, every day of the year.
5

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 6 of 14
Juan Hernandez 18. On January 7, 2016, at about 4:30 PM, Houston police officers arrested Juan Hernandez, without a warrant, for misdemeanor assault. 19. Mr. Hernandez’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 4:53 PM on January 7, 2016. 20. When Mr. Hernandez was brought to the Houston City Jail, a jail employee there told him that the Harris County Jail was full and that his transfer to Harris County would be delayed. She told Mr. Hernandez to “be patient.” 21. Mr. Hernandez was not brought before a judge until January 9, 2016, at 6:00 PM. He had been held over 49 hours without receiving a judicial determination of probable cause. 22. Five days after his hearing—after a week in custody—Mr. Hernandez pled guilty. He was released and given community supervision without jail time.
James Dossett 23. On January 7, 2016, at approximately 8:00 PM, Houston police officers arrested James Dossett, without a warrant, for possession of a controlled substance. 24. His arrest was entered into the City’s computerized records at 8:10 PM that day. 25. Mr. Dossett was held in the Houston Jail until January 10, 2016, when he was transferred to the Harris County Jail and received a probable cause hearing by video link at 4:00 AM. He had been held for 56 hours without receiving a probable cause hearing. 26. While Mr. Dossett was held in City custody, his friends attempted to find him to bail him out. But they could not locate him until the fifth day of his detention, after he had already been transferred to County custody.
6

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 7 of 14
27. Two days after his probable cause hearing, on January 12, 2016, Mr. Dossett posted bond through a surety and was released.
28. On April 22, 2016, Harris County dropped the charges against Mr. Dossett. Court records indicate that no controlled substance was found in the evidence against him. VI. CLASS ACTION
29. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis.
30. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class Members can challenge the City’s unlawful detention policy.
31. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(3) of the Federal Rules of Civil Procedure.
32. This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those provisions.
33. The named Plaintiff proposes a single Class seeking compensatory relief. The Class is defined as: All persons who were arrested without a warrant and who were detained by the City of Houston without the provision of a prompt judicial determination of probable cause— 48 hours at the longest—at any time within two years before the filing of this Complaint until the date of the order granting class certification.5
5 The statute of limitations for both claims is two years. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Plaintiffs reserve the right to argue that under the circumstances of this case detaining warrantless arrestees for periods less than 48 hours may be unreasonable. See Sanders v. City of Houston, 543 F. Supp. 694 (S.D. Tex. 1982), aff’d 741 F.2d 1379 (5th Cir. 1984) (issuing a permanent injunction against the City of Houston enjoining it from detaining warrantless arrestees for more than 24 hours without a proper determination of probable cause); see also Lockett v. State, 2006 WL 940648 at *1 (Tex. App. Apr. 13, 2006) (“the Houston police department
7

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 8 of 14
A. Numerosity. Fed R. Civ. P. 23(a)(1) 34. The individuals in the class are so numerous that joinder of all members would be impractical. 35. In June and July of 2016 alone, the City’s records show that the City of Houston confined hundreds of warrantless arrestees longer than 48 hours without a judicial determination of probable cause. 36. The City’s records show that violations occurred throughout 2016. Thousands of arrestees were likely subjected to this policy during the class period. Because joinder of thousands of plaintiffs would be impracticable, this case satisfies the numerosity requirement. B. Commonality. Fed. R. Civ. P. 23(a)(2) 37. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. The named Plaintiffs seek relief concerning whether the City’s policies, practices, and procedures violated the rights of the Class Members. 38. Common legal and factual questions arise from one central scheme: the City’s policy of detaining warrantless arrestees even beyond 48 hours when there has not been a probable cause determination by a neutral magistrate. The City has operated this policy openly and in materially the same manner every day. The resolution of these legal and factual issues will determine whether all of the Class Members are entitled to the relief that they seek. 39. There are questions of law and fact common to all Class Members. Among these common questions are:
a. Whether it violates the United States Constitution to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
operates under a permanent injunction preventing it from detaining persons without a warrant for more than twentyfour hours without taking the person before a magistrate.”).
8

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 9 of 14
b. Whether it violates state law to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
c. Whether the City of Houston maintained a policy, custom, or widespread practice of detaining warrantless arrestees for unreasonable periods of time, including routinely in excess of 48 hours, without a judicial determination of probable cause for the detention.
C. Typicality. Fed. R. Civ. P. 23(a)(3). 40. The named Plaintiffs’ claims are typical of the claims of the other Class Members, and the named Plaintiffs have the same interests in this case as all other Class Members. Each Class Member was arrested without a warrant and did not receive a probable cause hearing within a reasonable period of time. Each was kept in custody longer than 48 hours without a judicial determination of probable cause. Defendant City of Houston failed to release each of the Class Members after 48 hours had passed without a judicial determination of probable cause. The answer to whether the City maintains an unlawful policy of detaining warrantless arrestees for an unreasonable period, including for longer than 48 hours, in the absence of a judicial determination of probable cause will determine the claims of the named Plaintiffs and every other Class Member. 41. If the named Plaintiffs succeed in their claims that the City’s policies and practices concerning warrantless arrestees violate their rights, that ruling will likewise benefit every other member of the Class. D. Adequacy. Fed. R. Civ. P. 23(a)(4). 42. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class Members, each of whom has the same basic constitutional and statutory claims. The named Plaintiffs are members of the Class, and there are no known conflicts of
9

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 10 of 14
interest among the members of the Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendant’s policy.
43. Plaintiffs are represented by attorneys from Civil Rights Corps, the Texas Fair Defense Project, and Kirkland & Ellis LLP, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendant’s scheme and the relevant constitutional and statutory law. Counsel from Civil Rights Corps has been lead counsel in well over a dozen major federal class actions challenging the constitutionality of post-arrest systems in Alabama, Georgia, Louisiana, Mississippi, Missouri, Texas, and other states.
44. Class counsel have conducted an investigation into the City of Houston’s policy of detaining arrestees for longer than 48 hours without a judicial determination of probable cause and the near constant overcrowding in Harris County Jail. This investigation has included interviews with witnesses, city officials and employees, inmates, attorneys practicing in courts throughout the region, community members, and national experts in constitutional law, postarrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
45. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options available to municipalities who seek to comply with the Constitution.
46. As a result, counsel have devoted significant time and resources to becoming intimately familiar with the City’s scheme and with the relevant state and federal laws and procedures that can and should govern it. The interests of the Class Members will be fairly and adequately protected by the Plaintiffs and their attorneys.
10

Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 11 of 14
E. Rule 23(b)(3) 47. Class treatment under Rule 23(b)(3) is appropriate because common questions of law and fact overwhelmingly predominate over individual ones and a class action is the only practicable way—and, therefore, the superior way—of resolving this case. This case turns, for every Class Member, on what the City’s policies and practices were and whether those policies were lawful. 48. The common questions of law and fact listed above are dispositive questions in the case of every Class Member. The question of liability can therefore be determined on a class-wide basis. Class-wide treatment of liability is a far superior method of determining the content and legality of the City’s policies and practices than individual suits by hundreds or thousands of arrestees. 49. The question of damages will also be driven by class-wide determinations of common questions, such as the policies, practices, and conditions at the Houston Jail. To the extent that individual damages will vary, they will vary depending in large part on the amount of time the individual was unlawfully jailed. Determining damages for individual Class Members can be handled in a ministerial fashion based on easily verifiable records of the length of unlawful incarceration. If need be, damages sub-classes can be formed, and individual damages hearings based on special circumstances can be held, after class-wide liability is determined—a method far more efficient than litigating hundreds or thousands of individual lawsuits on the merits. VII. CLAIMS FOR RELIEF
Count One: Defendant Violated Plaintiffs’ Fourth and Fourteenth Amendment Rights by Failing to Release Them When They Did Not Receive A Timely Judicial Determination of Probable Cause 50. Plaintiffs incorporate by reference the allegations in paragraphs 1-49.
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51. The Fourth Amendment requires a prompt judicial determination of probable cause after a warrantless arrest. Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975). This constitutional provision is presumptively violated after 48 hours absent extraordinary circumstances, which are not present here.6 Defendant violated Plaintiffs’ rights by failing to release them after it failed to provide a prompt judicial determination of probable cause.
Count Two: Defendant Falsely Imprisoned Plaintiffs by Failing to Release Them When They Did Not Receive A Timely Judicial Determination of Probable Cause as Required by Texas State Law 52. Plaintiffs incorporate by reference the allegations in paragraphs 1-51. 53. The City of Houston may not detain someone without the person’s consent and without a legal basis for the detention. Houston falsely imprisoned the named Plaintiffs when it detained them in jail without a prompt judicial determination of probable cause. That detention was unlawful under the Fourth and Fourteenth Amendments to the United States Constitution and Articles 14.06(a), 15.17(a), and 17.033 of the Texas Code of Criminal Procedure, which require the City to bring warrantless arrestees before a neutral magistrate within 48 hours. VIII. REQUESTS FOR RELIEF WHEREFORE, the named Plaintiffs, on behalf of themselves and a class of others similarly situated, request that this Court issue the following relief: a. A judgment compensating named Plaintiffs and the Class Members for the damages they suffered as a result of Defendant’s unconstitutional and unlawful conduct. b. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964, and any other relief this Court deems just and proper.
6 See, e.g., Waganfeald v. Gusman, 674 F.3d 475 (5th Cir. 2012) (finding that the detention of warrantless arrestees in New Orleans during Hurricane Katrina fell within the emergency exception to McLaughlin’s 48-hour rule).
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Dated: December 5, 2016

Respectfully submitted,
/s/ Rebecca Bernhardt Rebecca Bernhardt (TX Bar No. 24001729) Attorney-in-Charge Susanne Pringle (TX Bar No. 24083686) Texas Fair Defense Project 314 E Highland Mall Blvd, Suite 108 Austin, Texas 78752 (512) 637-5220 rbernhardt@fairdefense.org springle@fairdefense.org
/s/ Charles Gerstein Charles Gerstein (Pro hac vice application forthcoming) Alec Karakatsanis Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20001 (202) 681-2409 charlie@civilrightscorp.org alec@civilrightscorps.org
/s/ Patrick King Patrick King Kirkland & Ellis LLP 600 Travis Street, Suite 330 Houston, Texas 77002 (713) 835-3600 Telephone (713) 835-3601 Facsimile patrick.king@kirkland.com
Andrew Genser (Pro hac vice application forthcoming) Amanda Elbogen (Pro hac vice application forthcoming) Kirkland & Ellis LLP 601 Lexington Ave New York, NY 10022 (212) 446-4800 Telephone (212) 446-4900 Facsimile agenser@kirkland.com amanda.elbogen@kirkland.com
Attorneys for Plaintiffs
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Case 4:16-cv-03577 Document 1 Filed in TXSD on 12/05/16 Page 14 of 14 CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of December 2016, a true and correct copy of the foregoing was sent to: Ronald C. Lewis City of Houston Legal Department 900 Bagby St, 4th Floor Houston, TX 77002
/s/ Patrick King Patrick King
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 Case 4:16-cv-03577 Document 19 Filed on 03/01/17 in TXSD Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JUAN HERNANDEZ, DEQUAN KIRKWOOD, MANUEL TREVINO, and KENT WHEATFALL, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
THE CITY OF HOUSTON, TEXAS,
Defendant.

) ) ) ) ) ) Case No. 16-CV-3577 ) (Class Action) ) ) Jury Trial Demand ) ) ) ) )

AMENDED CLASS ACTION COMPLAINT I. INTRODUCTION
1. Houston police make hundreds of warrantless arrests every week. The Fourth

Amendment to the United States Constitution and Texas state law require that anyone arrested

without a warrant be released promptly—after 48 hours at the longest—unless a neutral

magistrate has concluded that there was probable cause for her arrest and continued detention.

Houston has a policy and practice of disregarding this simple obligation. Whenever the Harris

County Jail (where Houston sends warrantless arrestees for probable cause hearings) refuses to

accept custody of an arrestee, or whenever Houston’s own arrest procedures are delayed,

Houston continues to detain arrestees in its jail cells without a neutral finding of probable cause

rather than release them after 48 hours as the Constitution requires. Publicly available arrest

records and booking data show that in 2015 and 2016, the City detained thousands of individuals

beyond the constitutionally permissible time without ensuring that they received prompt

probable cause hearings.

Case 4:16-cv-03577 Document 19 Filed on 03/01/17 in TXSD Page 2 of 24
II. NATURE OF THE ACTION1 2. The City of Houston arrests hundreds of people each week without a warrant.
Misdemeanor and felony arrestees in City custody who do not post bail are eventually transferred to the Harris County Jail, where they receive probable cause hearings conducted by video. As a matter of policy and practice, the City of Houston does not provide probable cause determinations for warrantless arrestees in its custody. Probable cause determinations are provided only after an arrestee has been transferred to the Harris County Jail. When it takes longer than 48 hours to transfer an arrestee to Harris County—and it often does—Houston, as a matter of policy and practice, continues to detain the arrestee unlawfully, rather than release him as the Fourth Amendment requires. Plaintiffs, on behalf of themselves and all others similarly situated, seek compensatory damages for Houston’s policy of detaining warrantless arrestees in violation of the United States Constitution and state law. III. JURISDICTION AND VENUE
3. This is a civil rights action arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
4. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 5. This Court has supplemental jurisdiction over the state law causes of action asserted in this Complaint pursuant to 28 U.S.C. § 1367 because the state law claims form part of the same case or controversy as the federal law claim. IV. PARTIES 6. Named Plaintiff Juan Hernandez is a resident of Houston, Texas.
1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they had personal involvement and on information and belief as to all other matters.
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7. Named Plaintiff DeQuan Kirkwood is a resident of Houston, Texas. 8. Named Plaintiff Manuel Trevino is a resident of Katy, Texas. 9. Named Plaintiff Kent Wheatfall is a resident of Houston, Texas. 10. Defendant City of Houston is a municipal corporation organized under the laws of the State of Texas. It is the most populous city in Texas and is located in Harris County, the most populous county in the state. The City of Houston operates the Houston Police Department (“HPD”) and the City of Houston Jail (“Houston Jail”). V. THE CONSTITUTIONAL AND STATUTORY RIGHT TO A PROMPT PROBABLE CAUSE HEARING 11. The Fourth Amendment “requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991). “[A]s a general matter,” the Supreme Court has explained, “judicial determinations of probable cause within 48 hours of arrest will . . . comply” with the Fourth Amendment. Id. at 56. The United States Court of Appeals for the Fifth Circuit has similarly explained that probable cause determinations made “[b]eyond 48 hours” after arrest” can be justified only by “the existence of a bona fide emergency or other extraordinary circumstance.” Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012). 12. The right to a probable cause determination within at most 48 hours of arrest is not only enshrined in the United States Constitution; it is also guaranteed by numerous other state and local rules. For example, the Texas Code of Criminal Procedure requires that “the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested . . . before a magistrate in any other
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county of this state.” Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). It is the arresting authority’s duty to ensure that a warrantless arrestee receives a probable cause hearing before a magistrate within 48 hours.
13. In the event that a prompt probable cause hearing has not been provided, Texas state law mandates the release of the arrestee, stating, “a person who is arrested without a warrant and who is detained in jail must be released . . . not later than the 48th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(b).
14. With respect to persons arrested for misdemeanors in counties that have over 3 million residents—Harris County has approximately 4.1 million residents—Texas state law imposes an even stricter requirement, providing that “a person . . . arrested without a warrant and who is detained in jail must be released . . . not later than the 36th hour after the person’s arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(a-1).
15. The Rules of the Harris County Criminal Courts also require the arresting authority to ensure a neutral probable cause determination within 48 hours of arrest. In particular, they obligate “[t]he arresting officer, or the person having custody of the arrestee, [to] ensure that every arrestee . . . be brought before a judicial officer without unnecessary delay, but not later than 48 hours after the person is arrested.” Harris Cnty. Crim. Ct. Rule 24.2.1 (2017).
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16. The Harris County local rules expressly permit probable cause hearings to occur remotely, using “high-speed, two-way audio/video transmission technology.” Harris Cnty. Crim. Ct. Rule 4.2.1 (2017).
17. In addition to the numerous state and local provisions requiring a prompt probable cause hearing, the United States District Court for the Southern District of Texas has previously enjoined the City of Houston to ensure that arrestees receive prompt probable cause determinations. This Court, after a trial in 1982, found that Houston’s policy of “detain[ing] arrestees on ‘investigative holds’ violates the Fourth and Fourteenth Amendments to the United States Constitution . . . and Articles 14.06 and 15.17 of the Texas Code of Criminal Procedure.” Sanders v. City of Houston, 543 F. Supp. 694, 696 (S.D. Tex. 1982), aff’d 741 F.2d 1379 (5th Cir. 1984). To remedy the City of Houston’s constitutional and state-law violations, this Court “permanently enjoined” the “City of Houston, its agents and employees . . . from detaining anyone arrested without a warrant for a period of more than twenty-four (24) hours without taking the person before a judicial officer for a determination of probable cause” and further ordered “that routinely every effort should be made to effect such procedures within a lesser period of time.” Id. Twenty-five years later, it is clear that—despite this Court’s order—the City of Houston is not living up to its obligations to comply with the Fourth Amendment. VI. THE CITY OF HOUSTON’S POLICIES AND PRACTICES CAUSE RAMPANT
VIOLATIONS OF THE RIGHT TO A PROMPT PROBABLE CAUSE DETERMINATION BY A NEUTRAL MAGISTRATE 18. Approximately 80,000 people were arrested by the City of Houston in 2014 and 2015; almost 90 percent of those people were arrested without a warrant. 19. As a matter of policy and practice, the City transfers felony and misdemeanor arrestees to the Harris County Jail for booking if they are unable to immediately pay a money bail amount set by a predetermined schedule. Harris County then assembles groups of arrestees
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to appear before a Harris County Hearing Officer for a probable cause hearing. These hearings occur by video link: the arrestees remain in the Harris County Jail, and a hearing officer and an assistant district attorney participate from a room in the courthouse. These probable cause hearings are conducted many times per day, throughout the day, every day of the year. The assistant district attorney reads the alleged facts supporting the charges against the arrestee, and the hearing officer determines whether there was probable cause for the arrest. Harris County does not combine the probable cause hearing with other pretrial proceedings or the appointment of counsel.
20. As a matter of policy and practice, judicial determinations of probable cause for warrantless arrests are not conducted while an individual is in the City of Houston’s custody. They take place only after an arrestee has been transferred to the Harris County Jail.
21. Therefore, any individual arrested without a warrant who remains in the City of Houston’s custody has not had a judicial determination of probable cause.
22. As a matter of policy, custom, or practice, the City does not release people who do not pay bail, even if 48 hours or more have passed since their arrest.2
23. Upon information and belief, Houston Mayor Sylvester Turner and Chief of Police Art Acevedo have long been aware of this policy, custom, or practice, and through their awareness and inaction, have officially adopted and executed it on behalf of the city. Former Mayor Annise Parker (2010–2016) and Former Chiefs of Police Charles McClelland (2010– February 2016) and Martha Montalvo (February–December 2016) were also aware of this policy, custom, or practice, and adopted and executed it as well.
2 Houston releases all arrestees who can pay predetermined financial conditions of release immediately. It keeps in detention only those who are unable to afford release. At no point do City officials conduct any inquiry into whether arrestees have the ability to pay the predetermined amount of money required for release.
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24. The Harris County Jail is notoriously overcrowded.3 Both the Houston Chronicle and the Houston Press reported that the County has experienced extreme overcrowding since at least 2007, when “overcrowding prompted then-Sheriff Tommy Thomas to ship more than 600 inmates to lock-ups in Louisiana.” Two years later, in 2009, “then-Sheriff Adrian Garcia sent buses of inmates to facilities in Texas and Louisiana due to the overcrowding.” Those transfers “continued through 2012,” and spiked again in 2015, when the jail found itself at “95 percent of its 9,400-bed capacity.”4
25. The overcrowding continued through 2016. In July and August 2016, the situation was so dire that Harris County told HPD to stop transferring inmates to the County Jail, and refused to accept busloads of inmates from the Houston Jail. As a spokesman for Harris County explained, “[w]e couldn’t keep up with the rate of people we had coming here.” There was, as he put it, “[n]o room at the inn — that’s literally the phrase that we use.” The Harris County spokesman also stated that, due to the overcrowding and other issues causing delay, at

3 See, e.g., Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston

Press (July 1, 2015), available at http://www.houstonpress.com/news/why-the-harris-county-jail-is-

overcrowded-with-legally-innocent-people-7555627; St. John Barned-Smith, Inmates transferred, jails

overcrowded,

Houston

Chronicle

(Apr.

17,

2016),

available

at

http://www.houstonchronicle.com/news/houston-texas/houston/article/Inmates-transferred-jails-overcrowded-

7251977.php; Meagan Flynn, Nearly 200 People Have Died in Harris County Sheriff’s Office Custody in 10

Years, Houston Press (Aug. 1, 2016), available at http://www.houstonpress.com/news/nearly-200-people-have-

died-in-harris-county-sheriffs-office-custody-in-10-years-8616676; Meagan Flynn, The Harris County Jail Got

So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at

http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowded-the-sheriff-delayed-inmate-transfers-

8745391; Meagan Flynn, Harris County Sheriff May Hand Over 17-Year-Olds to Private Prison Contractor,

Houston Press (Sept. 29, 2016), available at http://www.houstonpress.com/news/harris-county-sheriff-may-

hand-over-17-year-olds-to-private-prison-contractor-8812196.

4 St. John Barned-Smith, Inmates transferred, jails overcrowded, Houston Chronicle (Apr. 17, 2016); Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015).

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one point, the average time for inmates to be transferred from the Houston Police Department Jail to the Harris County Jail was “36 to 72 hours.”5
26. In November 2016, the Houston Chronicle reported that as a result of the persistent overcrowding, the Texas Commission on Jail Standards approved a request from Harris County “to let nearly 200 inmates sleep on plastic cots on the floor” while “warning that the county needs to think ahead about how to reduce its inmate population before its overcrowded jail system worsens.” The Houston Chronicle went on to explain that “Harris County Sheriff Ron Hickman said additional beds are needed because the jail population has ballooned from 8,500 inmates daily to 9,400 last month.” Throughout this period, Harris County continued to send hundreds of detainees to other county jails and to refuse transfers from the Houston Jail.6
27. The City of Houston and its chief policymakers, including the Mayor and Chief of Police at all times relevant to this class action, have long been aware of these delays and the constitutional violations that result.
28. In fact, Mayor Sylvester Turner himself has publicly acknowledged the significant overcrowding at the Harris County Jail. A report published by Mayor Turner in March 2016 stated that “the Harris County Jail is woefully overcrowded,” and that “Harris County is notorious for needlessly jailing Houstonians pretrial.”7
5 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (Sept. 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowded-thesheriff-delayed-inmate-transfers-8745391.
6 Andrea Zelinski, The Houston Chronicle, Jail commission approves COT plan request (Nov. 4, 2016), available at http://www.houstonchronicle.com/news/politics/houston/article/Jail-commission-OKs-countyrequest-for-temporary-10592050.php.
7 Mayor Sylvester Turner, Transition Committee on Criminal Justice (Mar. 1, 2016), available at https://www.houstontx.gov/mayor/transitionreports/criminal_justice.pdf.
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29. Even though the City of Houston and its key policymakers know that the Harris County Jail is over capacity, the HPD still waits to transfer warrantless arrestees to the Harris County Jail for probable cause hearings, rather than release them after 48 hours, or bring them to a different county for a prompt hearing.
30. Due to the ongoing issues in Harris County, the City of Houston and its policymakers are also aware that a transfer to Harris County slightly before the 48-hour mark is unlikely to result in a timely probable cause hearing. But they detain people in these circumstances nonetheless, despite knowing of the constitutional and statutory violations that result.
31. Furthermore, the City of Houston remains under a federal-court injunction requiring it to bring warrantless arrestees before a magistrate within 24 hours of arrest for a neutral determination of probable cause. The City and its chief policymakers are, therefore, on notice that there is a problem with their pre-trial detention system as a matter of law, and act with deliberate indifference to the Plaintiffs’ constitutional rights by allowing these unlawful detentions to continue.
32. This policy, custom, or practice—which has remained unchanged despite the injunction—has the inevitable and foreseeable result that numerous individuals arrested by the HPD without a warrant are denied their constitutional and statutory right to a prompt probable cause hearing.
33. Plaintiffs’ analysis of the County’s public booking records shows that between January 1, 2016, and July 15, 2016, over 1,400 arrestees were held in Houston’s City Jail for over 72 hours, and thousands more were held for over 48 hours. The Houston Press reported that
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in July and August 2016, over 1,000 inmates waited over 72 hours before being transferred to Harris County in those two months alone.8
34. Approximately 90% of arrests in Houston are made without warrants. Harris County’s publicly available data, therefore, indicates that hundreds, if not thousands, of individuals were held unlawfully in 2015 and 2016, and denied their right to a neutral and prompt determination of probable cause.
35. The large number of illegal detentions in 2015 and 2016 reflects the City of Houston’s broad, longstanding, and consistent policy of refusing to release warrantless arrestees even if more than 48 hours have passed since their warrantless arrest. For example, booking records show that one person arrested on July 25, 2016, did not receive a probable cause determination until July 31, 2016 (more than 144 hours after arrest); another person, arrested on July 23, 2016, did not receive a probable cause determination until July 30, 2016 (more than 168 hours after arrest); and at least 35 other people in the months of July and August 2016 waited more than four days (96 hours) between arrest and a probable cause determination.
36. Nor has the City of Houston taken any other steps to ensure that individuals its Police Department arrests without a warrant receive their constitutional and statutory right to a prompt probable cause hearing. The City of Houston has authority, under the Texas Code of Criminal Procedure, to have arrestees taken “before a magistrate in any other county of this state” in order to ensure a prompt probable cause hearing. See Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). According to the Texas Jail Project, there are 273 county jails in Texas. Many are a short drive from the Harris County Jail, including the Montgomery County Jail in
8 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowdedthe-sheriff-delayed-inmate-transfers-8745391.
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Conroe, Texas (1 hour), the Walker County Jail in Huntsville, Texas (1.5 hours), and the Washington County Jail in Brenham, Texas (1.5 hours). But, ignoring widespread deprivations of Fourth Amendment rights, the City of Houston does not utilize this provision and instead transfers all of its warrantless arrestees to the Harris County Jail, exclusively.
37. Knowingly keeping arrestees beyond the constitutionally required time, or in the alternative transferring them to Harris County after a substantial delay with no expectation that they will receive a prompt hearing, demonstrates a deliberate indifference to the arrestees’ constitutional rights.
38. Houston’s policy, custom, or practice of continuing to detain arrestees after they have failed to receive prompt probable cause determinations is the moving force and direct cause of Plaintiffs’ unreasonable detentions, and is the moving force of the deprivation of their constitutional rights.
39. This persistent and widespread practice in the City of Houston continues despite the City of Houston’s awareness that the obvious consequence of this practice is the systematic denial of constitutional rights to individuals in its custody. Specifically, the Mayor and Chief of Police, at all relevant times, were aware of the policy, custom or practice, had actual or constructive knowledge that it was the moving force behind the violation of numerous individuals’ constitutional rights, and executed the policy, custom, or practice nonetheless.
DeQuan Kirkwood9 40. On July 25, 2016, DeQuan Kirkwood drove to visit his probation officer. 41. When he arrived, Houston police officers arrested Mr. Kirkwood for evading arrest with a vehicle.

9

Mr. Kirkwood’s first name is misspelled as “DeJuan” in some of his records.

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42. Mr. Kirkwood’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 11:15 PM on July 25, 2016.
43. According to Harris County’s publicly available records, on July 28, 2016, at 1:23 AM, more than 50 hours later, Mr. Kirkwood was transferred to Harris County custody.
44. The City’s delay in bringing Mr. Kirkwood to the Harris County Jail was unreasonable and not justified by extraordinary circumstances.
45. At 7:00 AM on July 28, 2016—more than 55 hours after his arrest—Mr. Kirkwood appeared for his probable cause hearing.
46. The judge found there was no probable cause for Mr. Kirkwood’s arrest and continued detention. Mr. Kirkwood was promptly released.
Manuel Trevino 47. On July 27, 2016, Manuel Trevino was visiting a friend’s house when the Houston Police arrived and searched the house without a warrant. The police found narcotics in the home, and arrested Mr. Trevino along with others in the house. 48. Mr. Trevino’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 1:55 PM on July 27, 2016. 49. According to Harris County’s publicly available records, on July 30, 2016, at 10:42 PM, Mr. Trevino was booked into Harris County custody. He had been detained in Houston custody for almost 81 hours without receiving a probable cause hearing. 50. According to the City’s arrest data, Mr. Trevino was released from the City’s custody on July 30, 2016, at 9:39 PM, almost 80 hours after his arrest. 51. The City’s delay in bringing Mr. Trevino to the Harris County Jail was unreasonable and not justified by extraordinary circumstances.
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52. On July 31, 2016, at 10:00 PM, a judge found probable cause for his arrest and continued detention—almost 104 hours after his arrest.
53. On October 28, 2016, Mr. Trevino pleaded guilty and received a deferred adjudication. He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody.
Kent Wheatfall 54. Kent Wheatfall is a retired U.S. Postal Service worker. 55. On January 7, 2016, Mr. Wheatfall was arrested for aggravated assault. Mr. Wheatfall’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 10:30 PM on January 7, 2016. 56. According to Harris County’s publicly available records, on January 10, 2016, at 1:52 AM, Mr. Wheatfall was booked into Harris County custody. He had been in Houston custody for more than 51 hours. At 4:00 AM that day—more than 53 hours after his arrest—Mr. Wheatfall received a probable cause hearing, where a judge found probable cause for his arrest and continued detention. 57. The City’s delay in bringing Mr. Wheatfall to the Harris County Jail was unreasonable and not justified by extraordinary circumstances. 58. On February 4, 2016, Mr. Wheatfall was released on bond. He was indicted on February 18, 2016. 59. On May 17, 2016, Mr. Wheatfall was rearrested, and could not post bond. He was held until he pleaded guilty and received a deferred adjudication on February 10, 2017. He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody.
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Juan Hernandez 60. On January 7, 2016, at about 4:30 PM, Houston police officers arrested Juan Hernandez, without a warrant, for misdemeanor assault. 61. Mr. Hernandez’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 4:53 PM on January 7, 2016. 62. When Mr. Hernandez was brought to the Houston City Jail, a jail employee there told him that the Harris County Jail was full and that his transfer to Harris County would be delayed. She told Mr. Hernandez to “be patient.” 63. Later on, Mr. Hernandez saw a Houston City Jail employee that he knew. The employee said: “You still here? You should’ve been gone by now.” 64. According to Harris County’s publicly available records, on January 10, 2016, at 12:49 AM, Mr. Hernandez was booked into County custody without having received a probable cause hearing—almost 56 hours after his arrest. 65. Mr. Hernandez remembers being held for three days in the Houston City jail. 66. Harris County’s records reflect that Mr. Hernandez received a probable cause hearing before a judge on January 9, 2016, at 6:00 PM—more than 49 hours after his arrest. 67. The City’s delay in bringing Mr. Hernandez to the Harris County Jail was unreasonable and not justified by extraordinary circumstances. 68. Five days after his hearing—after a week in custody—Mr. Hernandez pleaded guilty. He was released and given community supervision without jail time. VII. CLASS ACTION 69. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis.
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70. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class Members can challenge the City’s unlawful detention policy.
71. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(3) of the Federal Rules of Civil Procedure.
72. This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those provisions.
73. The named Plaintiffs propose a single Class seeking compensatory relief. The Class is defined as: All persons who were arrested without a warrant by the City of Houston, and not provided a prompt judicial determination of probable cause—48 hours at the longest—at any time between December 6, 2014 (two years before the filing of this Complaint) and the date of the order granting class certification.10
A. Numerosity. Fed R. Civ. P. 23(a)(1) 74. The individuals in the class are so numerous that joinder of all members would be impractical. 75. Harris County’s public booking records shows that between January 1, 2016, and July 15, 2016, over 1,400 arrestees were held in Houston’s City Jail for over 72 hours, and that thousands more were held over 48 hours. The Houston Press separately concluded that in July
10 The statute of limitations for both claims is two years. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Plaintiffs reserve the right to argue that under the circumstances of this case, detaining warrantless arrestees for periods less than 48 hours may be unreasonable. See Sanders, 543 F. Supp. at 705 (issuing a permanent injunction against the City of Houston enjoining it from detaining warrantless arrestees for more than 24 hours without a proper determination of probable cause); see also Lockett v. State, No. 06-05-00138CR, 2006 WL 940648 at *1 (Tex. App. Apr. 13, 2006) (“the Houston police department operates under a permanent injunction preventing it from detaining persons arrested without a warrant for more than twenty-four hours without taking the person before a magistrate.”).
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and August 2016 alone, over 1,000 inmates waited more than 72 hours before being transferred to Harris County.11
76. Publicly available data show that violations occurred throughout 2016 and have not abated. Thousands of arrestees were likely subjected to this policy during the class period. Because joinder of thousands of plaintiffs would be impracticable, this case satisfies the numerosity requirement.
B. Commonality. Fed. R. Civ. P. 23(a)(2) 77. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. The named Plaintiffs seek relief concerning whether the City of Houston’s policies, practices, and procedures violated the rights of the Class Members. 78. Common legal and factual questions arise from one central scheme: the City’s policy of detaining warrantless arrestees, even beyond 48 hours, when there has not been a probable cause determination by a neutral magistrate. The City of Houston has operated this policy openly and in materially the same manner every day during the class period. The resolution of these legal and factual issues will determine whether all of the Class Members are entitled to the relief that they seek. 79. There are questions of law and fact common to all Class Members. Among these common questions are:
a. Whether it violates the United States Constitution to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
11 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowdedthe-sheriff-delayed-inmate-transfers-8745391.
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b. Whether it violates state law to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
c. Whether the City of Houston maintained a policy, custom, or widespread practice of detaining warrantless arrestees for unreasonable periods of time, including routinely in excess of 48 hours, without a judicial determination of probable cause for the detention.
C. Typicality. Fed. R. Civ. P. 23(a)(3) 80. The named Plaintiffs’ claims are typical of the claims of the other Class Members, and the named Plaintiffs have the same interests in this case as all other Class Members. Each Class Member was arrested without a warrant and did not receive a probable cause hearing within a reasonable period of time. Each waited longer than 48 hours without a judicial determination of probable cause. Defendant City of Houston denied each Plaintiff a prompt judicial determination of probable cause. The answer to whether the City of Houston maintains an unlawful policy of detaining warrantless arrestees for an unreasonable period, including for longer than 48 hours, in the absence of a judicial determination of probable cause will determine the claims of the named Plaintiffs and every other Class Member. 81. If the named Plaintiffs succeed in their claims that the City of Houston’s policies and practices concerning warrantless arrestees violate their rights, that ruling will likewise benefit every other member of the Class. D. Adequacy. Fed. R. Civ. P. 23(a)(4) 82. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class Members, each of whom has the same basic constitutional and statutory claims. The named Plaintiffs are members of the Class, and there are no known conflicts of
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interest among the members of the Class, all of whom have a similar interest in vindicating their constitutional and statutory rights in the face of Defendant’s policy.
83. Plaintiffs are represented by attorneys from Civil Rights Corps, the Texas Fair Defense Project, and Kirkland & Ellis LLP, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendant’s scheme and the relevant constitutional and statutory law. Counsel from Civil Rights Corps has been lead counsel in well over a dozen major federal class actions challenging the constitutionality of post-arrest systems in Alabama, Georgia, Louisiana, Mississippi, Missouri, Texas, and other states.
84. Class counsel have conducted an investigation into the City of Houston’s policy, custom, or practice of detaining arrestees for unreasonable periods of time without a judicial determination of probable cause, and the near constant overcrowding in Harris County Jail. This investigation has included interviews with witnesses, city officials and employees, inmates, attorneys practicing in courts throughout the region, community members, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
85. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options available to municipalities that seek to comply with the Constitution.
86. As a result, counsel have devoted significant time and resources to becoming intimately familiar with the City’s scheme and with the relevant state and federal laws and
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procedures that can and should govern it. The interests of the Class Members will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(3) 87. Class treatment under Rule 23(b)(3) is appropriate because common questions of law and fact overwhelmingly predominate over individual ones and a class action is the only practicable way—and, therefore, the superior way—of resolving this case. This case turns, for every Class Member, on what the City’s policies, customs, or practices were and whether those policies, customs, or practices were lawful. 88. The common questions of law and fact listed above are dispositive questions in the case of every Class Member. The question of liability can therefore be determined on a class-wide basis. Class-wide treatment of liability is a far superior method of determining the content and legality of the City’s policies and practices than individual suits by hundreds or thousands of arrestees. 89. The question of damages will also be driven by class-wide determinations of common questions, such as the policies, practices, and conditions at the Houston Jail. To the extent that individual damages will vary, they will vary depending in large part on the amount of time the individual was unlawfully jailed. Determining damages for individual Class Members can be handled in a ministerial fashion based on easily verifiable records of the length of unlawful incarceration. If need be, damages sub-classes can be formed, and individual damages hearings based on special circumstances can be held, after class-wide liability is determined—a method far more efficient than litigating hundreds or thousands of individual lawsuits on the merits.
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VIII. CLAIMS FOR RELIEF Count One: Defendant Violated Plaintiffs’ Fourth and Fourteenth Amendment Rights by Failing to Release Them When They Did Not Receive A Timely Judicial Determination of Probable Cause
90. Plaintiffs incorporate by reference the allegations in paragraphs 1–89. 91. The Fourth Amendment requires a prompt judicial determination of probable cause after a warrantless arrest. McLaughlin, 500 U.S. at 47; Gerstein v. Pugh, 420 U.S. 103 (1975). This constitutional provision is presumptively violated after 48 hours absent extraordinary circumstances, which are not present here.12 Plaintiffs allege, pursuant to 42 U.S.C. § 1983, that Defendant violated Plaintiffs’ Fourth and Fourteenth Amendment rights by failing to release them after it failed to ensure a prompt judicial determination of probable cause. 92. Defendant’s policy, custom, or practice of continuing to detain individuals arrested without a warrant even after they have not received a prompt probable cause hearing, rather than releasing them, is the moving force of the McLaughlin violations occurring in the City of Houston Jail. 93. This practice of the City is persistent and widespread, and is so common and well settled as to constitute a custom that fairly represents municipal policy. 94. Defendant and its chief policymakers, including the Mayor and Chief of Police at all relevant times, had actual or constructive knowledge of this policy, custom, or practice long enough to recognize and correct it. 95. By doing nothing to correct an ongoing pattern of constitutional deprivations of which it is well aware and has been aware for years, Defendant and its policymakers, including
12 See, e.g., Waganfeald v. Gusman, 674 F.3d 475, 482 (5th Cir. 2012) (finding that the detention of warrantless arrestees in New Orleans during Hurricane Katrina fell within the emergency exception to McLaughlin’s 48hour rule).
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the Mayor and Chief of Police at all relevant times, adopted and executed this policy, custom, or practice on behalf of the City.
96. This policy, custom, or practice continues with the express or implied authority of Houston’s Mayor and Chief of Police.
97. In allowing this widespread policy, custom, or practice to persist, Defendant has demonstrated deliberate indifference to the ongoing and numerous constitutional violations that have affected thousands of individuals in the class period alone.
Count Two: Defendant Violated Plaintiffs’ Rights Under Texas State Law by Refusing to Release Them When They Did Not Receive A Timely Judicial Determination of Probable Cause 98. Plaintiffs incorporate by reference the allegations in paragraphs 1–97. 99. Texas state law requires that, where an individual is arrested without a warrant, “the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested . . . before a magistrate in any other county of this state.” Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). In the event that a prompt probable cause hearing has not been provided, Texas state law mandates that “a person who is arrested without a warrant and who is detained in jail must be released . . . not later than the 48th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(b). 100. With respect to persons arrested for misdemeanors in counties that have over 3 million residents (Harris County has approximately 4.1 million residents), Texas state law requires that warrantless arrestees “must be released . . . not later than the 36th hour after the
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person’s arrest” if a magistrate “has not determined whether probable cause exists.” Tex. Code Crim. Proc. § 17.033(a-1).
101. The City of Houston unlawfully detained Plaintiffs under Texas State law when it failed to release them as required by Articles 14.06(a), 15.17(a), and 17.033(a-1) and (b) of the Texas Code of Criminal Procedure. IX. REQUESTS FOR RELIEF
WHEREFORE, the named Plaintiffs, on behalf of themselves and a class of others similarly situated, request that this Court issue the following relief:
a. A judgment compensating named Plaintiffs and the Class Members for the damages they suffered as a result of Defendant’s unconstitutional and unlawful conduct, in an amount to be determined at trial;
b. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964, and any other relief this Court deems just and proper; and
c. Such other relief as this Court deems equitable, just, and proper.
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Dated: March 1, 2017

Respectfully submitted,
/s/ Rebecca Bernhardt Rebecca Bernhardt (TX Bar No. 24001729) Attorney-in-Charge Susanne Pringle (TX Bar No. 24083686) Texas Fair Defense Project 314 E Highland Mall Blvd, Suite 108 Austin, Texas 78752 (512) 637-5220 rbernhardt@fairdefense.org springle@fairdefense.org
/s/ Charles Gerstein Charles Gerstein (Admitted pro hac vice) Alec Karakatsanis Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20006 (202) 681-2409 charlie@civilrightscorp.org alec@civilrightscorps.org
/s/ Patrick King Patrick King (TX Bar No. 24095186) Kirkland & Ellis LLP 600 Travis Street, Suite 330 Houston, Texas 77002 (713) 835-3600 Telephone (713) 835-3601 Facsimile patrick.king@kirkland.com
Andrew Genser (Admitted pro hac vice) Amanda Elbogen (Admitted pro hac vice) Kirkland & Ellis LLP 601 Lexington Ave New York, NY 10022 (212) 446-4800 Telephone (212) 446-4900 Facsimile agenser@kirkland.com amanda.elbogen@kirkland.com
Attorneys for Plaintiffs

Case 4:16-cv-03577 Document 19 Filed on 03/01/17 in TXSD Page 24 of 24
CERTIFICATE OF SERVICE I hereby certify that on the 1st day of March 2017, I caused a copy of the foregoing document to be served on all counsel by the Electronic Case Filing System for the United States District Court for the Southern District of Texas.
/s/ Charles Gerstein Charles Gerstein

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

United States District Court Southern District of Texas
ENTERED
June 07, 2017
David J. Bradley, Clerk

JUAN HERNANDEZ, et al,
Plaintiffs, VS.
CITY OF HOUSTON,
Defendant.

§ § § § CIVIL ACTION NO. 4:16-CV-3577 § § § §

MEMORANDUM AND ORDER

I. INTRODUCTION

Before the Court is the defendant’s, City of Houston (the City), amended motion to

dismiss or, in the alternative, amended motion for summary judgment [DE# 25] and the

plaintiff’s, Juan Hernandez, Dequan Kirkwood, Kent Wheatfall, and Manuel Trevino, on behalf

of themselves and all others similarly situated, response [DE# 26] to the City’s motion(s). The

Court, having fully considered the motion(s) and response, the memoranda in support and in

opposition and the Memorandum and Opinion – Finding of Fact and Conclusions of Law in a

related case, determines that the City’s motion should be denied. See Maranda Lynn O’Donnell,

et. al. v. Harris County, Texas, et. al., [CA No. H-16-1414 [DE# 302].

II. FACTUAL AND PROCEDURAL BACKGROUND

This suit was filed as an original complaint by plaintiffs, Hernandez and Dossett. The

City filed a motion to dismiss the plaintiff’s complaint pursuant to Federal Rules of Civil

Procedure (“FRCP”), Rule 12(b)(6) and agreed, alternatively, that a summary judgment was

proper under FRCP 56 [DE# 15]. In response, Dossett voluntarily dismissed his claims and

Hernandez amended his suit adding Kirkwood, Wheatfall and Trevino as additional plaintiffs.

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See [DE# 18 and 19]. Thereafter, the City promptly amended its motion seeking the same relief
previously sought [DE# 25].
III. THE CONTENTIONS OF THE PARTIES
A. The Plaintiffs’ Contentions
The plaintiffs assert that the City makes approximately 80,000 arrests persons each year.
Ninety percent, they assert, are warrantless arrests. In the instance where the person arrested
cannot pay a pre-set secured money bail immediately, he or she is held in City jail until the
Harris County [the County] jail officials effect a transfer to its facility. Only after the person
arrested is transferred does he or she receive a probable cause hearing. The plaintiffs assert that
of the 80,000 persons arrested, several hundred, perhaps as many as 1,000, are detained in the
City jail in excess of 48 hours without a probable cause hearing or other judicial authorization.
Both the Mayor and the Chief of Police of the City are aware of this practice and even
acknowledge the truth of the plaintiff’s statements.
In their pleadings each of the plaintiffs contends that he was held in the City’s jail for
more than 48 hours without a judicial determination or a probable cause hearing. In separate
pleadings, Kirwood asserts that:
On July 25, 2016, DeQuan Kirkwood drove to visit his probation officer. (¶ 40.) When he arrived, Houston police officers arrested Mr. Kirkwood for evading arrest with a vehicle. (¶ 41.) Mr. Kirkwood’s arrest was entered into the City’s and the County’s electronic records at 11:15 PM on July 25, 2016. (¶ 42.) According to the County’s publicly available records, on July 28, 2016, at 1:23 AM, more than 50 hours later, Mr. Kirkwood was transferred to Harris County custody. (¶ 43.)
At 7:00 AM on July 28, 2016—more than 55 hours after his arrest— Mr. Kirkwood appeared for his probable cause hearing. (¶ 44.) The judge found that there was no probable cause for Mr. Kirkwood’s arrest and continued detention. (¶ 46.) Mr. Kirkwood was promptly released. (¶ 46.)
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See Kirkwood [DE# 26, at p. 6]. In like manner, Trevino asserts that he was held over 48 hours. He
asserts that:
On July 27, 2016, Manuel Trevino was visiting a friend’s house when the Houston Police arrived and searched the house without a warrant. (¶ 47.) The police found narcotics in the home, and arrested Mr. Trevino, along with others in the house. Mr. Trevino’s arrest was entered into the City’s and the County’s electronic records at 1:55 PM on July 27, 2016. (¶ 48.)
According to the County’s publicly available records, on July 30, 2016, at 10:42 PM, Mr. Trevino was booked into Harris County custody. (¶ 49.) He had been detained in City custody 7 for almost 81 hours without a probable cause hearing. According to the City’s arrest data, Mr. Trevino was released from the City’s custody on July 30, 2016, at 9:39 PM, almost 80 hours after his arrest. (¶ 50.)
On July 31, 2016, at 10:00 PM, a judge found probable cause for his arrest and continued detention, i.e., almost 104 hours after his arrest. (¶ 52.) On October 28, 2016, Mr. Trevino pleaded guilty and received a deferred adjudication. (¶ 53.) He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody.
See Trevino [DE# 26 at pp. 6-7]. Wheatfall, also a plaintiff, asserts that his pleadings render the
City’s motions a nullity. He asserts that he, too, was held in excess of 48 hours before receiving
a probable cause hearing. He pleads the follows:
Kent Wheatfall is a retired U.S. Postal Service worker. (¶ 54.) On January 7, 2016, Mr. Wheatfall was arrested for aggravated assault. (¶ 55.) Mr. Wheatfall’s arrest was entered into the City’s and the County’s electronic records at 10:30 PM on January 7, 2016. According to the County’s publicly available records, on January 10, 2016, at 1:52 AM, Mr. Wheatfall was booked into County custody. (¶ 56.) At that point, he had been in Houston custody for more than 51 hours. At 4:00 AM that day—more than 53 hours after his arrest— Mr. Wheatfall received a probable cause hearing, where a judge found probable cause for his arrest and continued detention.
On February 4, 2016, Mr. Wheatfall was released on a surety bond. (¶ 58.) He was indicted on February 18, 2016. (Id.) On May 17, 2016, Mr. Wheatfall was rearrested, and could not make bail. (¶ 59.) He was held until he pleaded guilty and received a deferred adjudication on
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February 10, 2017. (Id.) He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody. (Id.)
See Wheatfall [DE# 26, p. 7]. Finally, the plaintiff, Hernandez contends that like Wheatfall,
Kirkwood and Trevino, he was detained by the City in violation of the federal Constitution. In
his pleadings, he asserts:
On January 7, 2016, at about 4:30 PM, Houston police officers arrested Juan Hernandez, without a warrant, for misdemeanor assault. (¶ 60.) Mr. Hernandez’s arrest was entered into the City’s and the County’s electronic records at 4:53 PM on January 7, 2016. (¶ 61.)
When Mr. Hernandez was brought to the City Jail, a jail employee there told him that the County Jail was full and that his transfer to Harris County would be delayed. (¶ 62.) She told Mr. Hernandez to “be patient.” (¶ 62.) Later on, Mr. Hernandez saw a City Jail employee that he knew and the employee said: “You still here? You should’ve been gone by now.” (¶ 63.)
According to the County’s publicly available records, on January 10, 2016, at 12:49 AM, Mr. Hernandez was booked into County custody without having received a probable cause hearing—almost 56 hours after his arrest. (¶ 64.) Mr. Hernandez remembers being held for three days in the City jail. (¶ 65.) Although, the County’s records reflect that Mr. Hernandez was booked into County custody about 56 hours after his arrest, the records reflect that he received a probable cause hearing before a judge on January 9, 2016, at 6:00 PM—more than 49 hours after his arrest. (¶ 66.) Five days after his hearing—after a week in custody—Mr. Hernandez pleaded guilty. (¶ 68.) He was released and given community supervision without jail time, and his sentence was not credited with any time he spent in pre-trial custody.
In summary, the plaintiffs contend that the City has established a “policy and practice”
i.e., “do not release arrested until [Harris County] can take them, even though there has been no
neutral finding of probable cause.” Arguing further, the plaintiffs contend that it is the City’s
responsibility to ensure that arrests are promptly brought before a magistrate or release them.
Failing, the City violates both state and federal law by illegally detaining the plaintiffs.
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B. The City’s Contentions The City seeks dismissal of the plaintiffs’ suit or alternatively a summary judgment that terminates the plaintiffs’ suit. In three contentions, the City asserts that: (1) The plaintiffs have failed to state a § 1983 claim against the City because the
plaintiffs “concede that their constitutional deprivations, if any, were caused by the policies if Harris County, which is not the City’s agent or subject to the City’s control.” See 42 U.S.C. § 1983. In this regard, the City points to the “exceptionally high burden” that is imposed on a litigant who seeks to establish municipal liability under Monell. See Monell v. New York Dep’t of Social Services, 436 U.S. 658 (1978). Nevertheless, the City concedes that § 1983 authorizes suits for constitutional deprivations where the government’s conduct either by edits or by custom and practice, even though not formal edits by a governing body operates in such a manner that it may be said represents official policy. Id. at 690-91, 94. In further argument, the City argues that the plaintiffs cannot “aggregate” the City’s alleged policies with those of the County, and to assert that the City’s failure to transfer arrestees to outlying counties where a magistrate judge is available, does not constitute a constitutional violation; (2) The City contends that the plaintiff’s individual claims fail because, as to Hernandez, he was not held by the City more than 48 hours, citing to compliance with state law. See Tex. Code. Crim. Proc. § 15.17(a). With regard to Wheatfall, Kirkwood and Trevino, the City asserts that they were in the City’s custody over 48 hours but due to “extraordinary circumstances.” The City attributes the delay in transferring the arrestees to the lack of availability of a judge because the
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County canceled the “drags [?] for prisoner transport.” Therefore, any delay was due to acts of the County, not the City. In this regard, the City analyzes its circumstance to that in Waganfeald v. Gusman, 674 F.3d 475, 582 (5th Cir. 2012). There, the Circuit Court, allegedly, excused the delay in releasing arrestees due to Hurricane Katrina. See also Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012). [Here, the Circuit Court declared the unavailability of a magistrate judge as an extraordinary circumstance thus excusing delay in releasing arrestees]; (3) Finally, the City asserts that the plaintiff’s do not have standing to assert a cause of action against the City under the Texas Code of Criminal Procedure. The City points to case law authority from the state Supreme Court where, it asserts, the court held that persons claiming injury by the application of the Penal Code or the Code of Criminal Procedure have no common law remedy. See City of Beaumont v. Bouillion, 896 S.W. 2d 143, 150 (Tex. 1995). Therefore, the City urges the Court to dismiss any state common law claim that the plaintiffs allege arises as a result of alleged violations of Texas code of Criminal Procedures, sections 14.06(a); 15.17(a) and 17.033(a-1) and/or (b). IV. STANDARDS OF REVIEW A. Rule 12(b)(6) Motion to Dismiss Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon which relief may be granted.” FED. R. CIV. P. 12(b)(6). Under the demanding strictures of a Rule 12(b)(6) motion, “[t]he plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true.” Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996) (citing Mitchell v.
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McBryde, 944 F.2d 229, 230 (5th Cir. 1991)). Dismissal is appropriate only if, the “[f]actual allegations [are not] enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Moreover, in light of Federal Rule of Civil Procedure 8(a)(2), “[s]pecific facts are not necessary; the [factual allegations] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. Even so, “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, 550 U.S. at 555, 127 S. Ct. at 1964 - 65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986).
Therefore, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1955). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show [n]’-‘that the pleader is entitled to relief.’” Ashcroft, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Nevertheless, when considering a 12(b)(6) motion to dismiss, the Court’s task is limited to deciding whether the plaintiff is entitled to offer evidence in support of his or her claims, not
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whether the plaintiff will eventually prevail. Twombly, 550 U.S. at 563, 1969 n.8 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed.2d 90 (1974)); see also Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
B. Summary Judgment Standard Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A fact is “material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Id. at 249-50; see also Shields v. Twiss, 389 F.3d 142, 149-50 (5th Cir. 2004). Under Rule 56(c) of the Federal Rules of Civil Procedure, the moving party bears the initial burden of “informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue for trial.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 - 87 (1986); Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 163 (5th Cir. 2006). Where the moving party has met its Rule 56(c) burden, the nonmovant must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 586-87 (quoting Fed. R. Civ. P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Adams, 465 F.3d at 164. To sustain the burden, the nonmoving party must produce evidence admissible at trial showing that reasonable minds could differ regarding a genuine issue of material fact.
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Anderson, 477 U.S. at 250-51; 255; Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). In deciding a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
The City asserts that FRCP 12(b)(6) dictates that the plaintiffs’ suit be dismissed because the plaintiffs’ pleading fail to assert factual claim allegations that apply to the City. In this regard, the City asserts that the plaintiffs’ pleadings fail to state facts from which a reasonable inference of wrongdoing or misconduct may be drawn for which the City might be held liable.
The Court accepts the well-pleaded facts stated in the plaintiffs amended complaint and concludes that, on its face, a plausible claim is stated. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On its face, the plaintiff’s complaint asserts that the City’s policymakers have adopted a policy or practice of failing to release arrestees for an unreasonable period of time without providing the arrestees with a probable cause hearing and that that practice is the “moving force” behind the plaintiffs’ allegations of violations of federal Constitutional and state law. The City, all but admits that these facts are true yet argues that extraordinary circumstances or Harris County is the cause.
The Court holds that the City claim of extraordinary circumstances is merely a defense to an otherwise legitimate claim. Whether the City’s defense(s) carry the day, rest on a determination of disputed facts and law. The Court accepts the well-pleaded facts in the plaintiffs’ amended complaint as true and determines that the City’s motion to dismiss should be denied.
The City also seeks summary judgment on the plaintiffs’ § 1983 claims. In order for the plaintiffs to prevail on their § 1983 claim they must establish that a policymaker, by edit or by
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established practice permitted a violation of a constitutional right which violation is the “moving force” of the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). The alleged unconstitutional conduct must be directly attributable to the municipality. Id. at 578. Assuming the plaintiffs’ pleading to be true, the plaintiffs have stated a custom or practice that is directly related to the plaintiffs’ claim for constitutional deprivation. It might be said that the City violates both state and federal law, but places the blame on Harris County. It is of no consequence that state common law does not provide a remedy for the City’s conduct. Assuming a violation of the plaintiffs’ Fourth and/or Eighth Amendment rights to a prompt detention hearing, a state law violation may show deliberate indifference on the part of the City. See Jackler v. Byrne 658 F.3d 225, 236 (2nd Cir. 2011). A disrespect and disregard for a known statute may become a method or means by which a federal Constitutional right is abridged. See Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010).
The City argues that it has no control over the arrestees and that it is not the City’s fault that the arrestees do not receive timely Constitutional probable cause hearings. This argument suggests that the City is at the “mercy” of Harris County. If that is the case, that fact establishes the City’s policy. The City becomes an agent for Harris County and/or an “aider and abetter” in Harris County’s unconstitutional conduct. This is so because the City has consistently participated in Harris County’s alleged conduct with full knowledge of the constitutional implications; yet, over the years has failed to demonstrate governance over its own affairs and the City’s separate duty to comply with federal law. Such knowledge and conduct demonstrates a course of conduct that may be determined as callous to the plaintiffs’ alleged violations. See Zarnow, 614 F.3d at 169 (5th Cir. 2010).
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Therefore, the Court is of the opinion that disputed fact issue also defeats the City’s amended motion for summary judgment. The motion is Denied in the entirety.
It is so Ordered. SIGNED on this 6th day of June, 2017.
___________________________________ Kenneth M. Hoyt United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

JUAN HERNANDEZ, DEQUAN

)

KIRKWOOD, MANUEL TREVINO, KENT )

WHEATFALL, and ERIC AGUIRRE on

)

behalf of themselves and all others similarly )

situated,

Plaintiffs,

) ) )

Case No. 16-CV-3577 (Class Action)

v.

) )

Jury Trial Demand

)

THE CITY OF HOUSTON, TEXAS,

)

)

Defendant.

)

[PROPOSED] SECOND AMENDED CLASS ACTION COMPLAINT I. INTRODUCTION
1. Houston police make hundreds of warrantless arrests every week. The Fourth Amendment to the United States Constitution and Texas state law require that anyone arrested without a warrant be released promptly—after 48 hours at the longest—unless a neutral magistrate has concluded that there was probable cause for her arrest and continued detention. Houston has a policy and practice of disregarding this simple obligation. Whenever the Harris County Jail (where Houston sends warrantless arrestees for probable cause hearings) refuses to accept custody of an arrestee, or whenever Houston’s own arrest procedures are delayed, Houston continues to detain arrestees in its jail cells without a neutral finding of probable cause rather than release them after 48 hours as the Constitution requires. Publicly available arrest records and booking data show that in 2015 and 2016 the City detained thousands of individuals beyond the constitutionally permissible time without ensuring that they received prompt probable cause hearings.

II. NATURE OF THE ACTION1 2. The City of Houston arrests hundreds of people each week without a warrant.
Misdemeanor and felony arrestees in City custody who do not post bail are eventually transferred to the Harris County Jail, where they receive probable cause hearings conducted by video. As a matter of policy and practice, the City of Houston does not provide probable cause determinations for warrantless arrestees in its custody. Probable cause determinations are provided only after an arrestee has been transferred to the Harris County Jail. When it takes longer than 48 hours to transfer an arrestee to Harris County—and it often does—Houston, as a matter of policy and practice, continues to detain the arrestee unlawfully rather than release him as the Fourth Amendment requires. Plaintiffs, on behalf of themselves and all others similarly situated, seek compensatory damages for Houston’s policy of detaining warrantless arrestees in violation of the United States Constitution and state law. III. JURISDICTION AND VENUE
3. This is a civil rights action arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
4. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 5. This Court has supplemental jurisdiction over the state law causes of action asserted in this Complaint pursuant to 28 U.S.C. § 1367 because the state law claims form part of the same case or controversy as the federal law claim.
1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they had personal involvement and on information and belief as to all other matters.
2

IV. PARTIES 6. Named Plaintiff Juan Hernandez is a resident of Houston, Texas. 7. Named Plaintiff DeQuan Kirkwood is a resident of Houston, Texas. 8. Named Plaintiff Manuel Trevino is a resident of Katy, Texas. 9. Named Plaintiff Kent Wheatfall is a resident of Houston, Texas. 10. Named Plaintiff Eric Aguirre is a resident of Houston, Texas. 11. Defendant City of Houston is a municipal corporation organized under the laws of
the State of Texas. It is the most populous city in Texas and is located in Harris County, the most populous county in the state. The City of Houston operates the Houston Police Department (“HPD”) and the City of Houston Jail (“Houston Jail”). V. THE CONSTITUTIONAL AND STATUTORY RIGHT TO A PROMPT
PROBABLE CAUSE HEARING 12. The Fourth Amendment “requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991). “[A]s a general matter,” the Supreme Court has explained, “judicial determinations of probable cause within 48 hours of arrest will . . . comply” with the Fourth Amendment. Id. at 56. The United States Court of Appeals for the Fifth Circuit has similarly explained that probable cause determinations made “[b]eyond 48 hours after arrest” can be justified only by “the existence of a bona fide emergency or other extraordinary circumstance.” Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012). 13. The right to a probable cause determination within at most 48 hours of arrest is not only enshrined in the United States Constitution, it is also guaranteed by numerous other state and local rules. For example, the Texas Code of Criminal Procedure requires that “the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but
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not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested . . . before a magistrate in any other county of this state.” Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). It is the arresting authority’s duty to ensure that a warrantless arrestee receives a probable cause hearing before a magistrate within 48 hours.
14. In the event that a prompt probable cause hearing has not been provided, Texas state law mandates the release of the arrestee, stating, “a person who is arrested without a warrant and who is detained in jail must be released . . . not later than the 48th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(b).
15. With respect to persons arrested for misdemeanors in counties that have over 3 million residents—Harris County has approximately 4.1 million residents—Texas state law imposes an even stricter requirement, providing that “a person . . . arrested without a warrant and who is detained in jail must be released . . . not later than the 24th hour after the person’s arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(a).
16. The Rules of the Harris County Criminal Courts also require the arresting authority to ensure a neutral probable cause determination within 48 hours of arrest. In particular, they obligate “[t]he arresting officer, or the person having custody of the arrestee, [to] ensure that every arrestee . . . be brought before a judicial officer without unnecessary delay, but not later than 48 hours after the person is arrested.” Harris Cnty. Crim. Ct. Rule 24.2.1 (2017).
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17. The Harris County local rules expressly permit probable cause hearings to occur remotely, using “high-speed, two-way audio/video transmission technology.” Harris Cnty. Crim. Ct. Rule 4.2.1 (2017).
18. In addition to the numerous state and local provisions requiring a prompt probable cause hearing, the United States District Court for the Southern District of Texas has previously enjoined the City of Houston to ensure that arrestees receive prompt probable cause determinations. This Court, after a trial in 1982, found that Houston’s policy of “detain[ing] arrestees on ‘investigative holds’ violates the Fourth and Fourteenth Amendments to the United States Constitution . . . and Articles 14.06 and 15.17 of the Texas Code of Criminal Procedure.” Sanders v. City of Houston, 543 F. Supp. 694, 696 (S.D. Tex. 1982), aff’d 741 F.2d 1379 (5th Cir. 1984). To remedy the City of Houston’s constitutional and state law violations, this Court “permanently enjoined” the “City of Houston, its agents and employees . . . from detaining anyone arrested without a warrant for a period of more than twenty-four (24) hours without taking the person before a judicial officer for a determination of probable cause” and further ordered “that routinely every effort should be made to effect such procedures within a lesser period of time.” Id. Twenty-five years later, it is clear that—despite this Court’s order—the City of Houston is not living up to its obligations to comply with the Fourth Amendment. VI. THE CITY OF HOUSTON’S POLICIES AND PRACTICES CAUSE RAMPANT
VIOLATIONS OF THE RIGHT TO A PROMPT PROBABLE CAUSE DETERMINATION BY A NEUTRAL MAGISTRATE 19. Approximately 80,000 people were arrested by the City of Houston in 2014 and 2015; almost 90 percent of those people were arrested without a warrant. 20. As a matter of policy and practice, the City transfers felony and misdemeanor arrestees to the Harris County Jail for booking if they are unable to immediately pay a money bail amount set by a predetermined schedule. Harris County then assembles groups of arrestees to
5

appear before a Harris County Hearing Officer for a probable cause hearing. These hearings primarily occur by video link: the arrestees remain in the Harris County Jail, and a hearing officer and an assistant district attorney participate from a room in the courthouse. These probable cause hearings are conducted many times per day, throughout the day, every day of the year. The assistant district attorney reads the alleged facts supporting the charges against the arrestee, and the hearing officer determines whether there was probable cause for the arrest. Harris County does not combine the probable cause hearing with other pretrial proceedings or the appointment of counsel.
21. As a matter of policy and practice, judicial determinations of probable cause for warrantless arrests are not conducted while an individual is in the City of Houston’s custody. They take place only after an arrestee has been transferred to the Harris County Jail.
22. Therefore, any individual arrested without a warrant who remains in the City of Houston’s custody has not had a judicial determination of probable cause.
23. As a matter of policy, custom, or practice, the City does not release people who do not pay bail, even if 48 hours or more have passed since their arrest.2
24. Upon information and belief, Houston Mayor Sylvester Turner and Chief of Police Art Acevedo have long been aware of this policy, custom, or practice, and through their awareness and inaction, have officially adopted and executed it on behalf of the city. Former Mayor Annise Parker (2010–2016) and Former Chiefs of Police Charles McClelland (2010–February 2016) and Martha Montalvo (February–December 2016) were also aware of this policy, custom, or practice, and adopted and executed it as well.
2 Houston releases all arrestees who can pay predetermined financial conditions of release immediately. It keeps in detention only those who are unable to afford release. At no point do City officials conduct any inquiry into whether arrestees have the ability to pay the predetermined amount of money required for release.
6

25. The Harris County Jail is notoriously overcrowded.3 Both the Houston Chronicle
and the Houston Press reported that the County has experienced extreme overcrowding since at
least 2007, when “overcrowding prompted then-Sheriff Tommy Thomas to ship more than 600
inmates to lock-ups in Louisiana.” Two years later, in 2009, “then-Sheriff Adrian Garcia sent buses
of inmates to facilities in Texas and Louisiana due to the overcrowding.” Those transfers
“continued through 2012,” and spiked again in 2015, when the jail found itself at “95 percent of its 9,400-bed capacity.”4
26. The overcrowding continued through 2016. In July and August 2016, the situation
was so dire that Harris County told HPD to stop transferring inmates to the County Jail, and refused
to accept busloads of inmates from the Houston Jail. As a spokesman for Harris County explained,
“[w]e couldn’t keep up with the rate of people we had coming here.” There was, as he put it, “[n]o
room at the inn — that’s literally the phrase that we use.” The Harris County spokesman also
stated that, due to the overcrowding and other issues causing delay, at one point, the average time
3 See, e.g., Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015), available at http://www.houstonpress.com/news/why-the-harris-county-jail-isovercrowded-with-legally-innocent-people-7555627; St. John Barned-Smith, Inmates transferred, jails overcrowded, Houston Chronicle (Apr. 17, 2016), available at http://www.houstonchronicle.com/news/houstontexas/houston/article/Inmates-transferred-jails-overcrowded-7251977.php; Meagan Flynn, Nearly 200 People Have Died in Harris County Sheriff’s Office Custody in 10 Years, Houston Press (Aug. 1, 2016), available at http://www.houstonpress.com/news/nearly-200-people-have-died-in-harris-county-sheriffs-office-custody-in10-years-8616676; Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-gotso-crowded-the-sheriff-delayed-inmate-transfers-8745391; Meagan Flynn, Harris County Sheriff May Hand Over 17-Year-Olds to Private Prison Contractor, Houston Press (Sept. 29, 2016), available at http://www.houstonpress.com/news/harris-county-sheriff-may-hand-over-17-year-olds-to-private-prisoncontractor-8812196.
4 St. John Barned-Smith, Inmates transferred, jails overcrowded, Houston Chronicle (Apr. 17, 2016); Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015).
7

for inmates to be transferred from the Houston Police Department Jail to the Harris County Jail was “36 to 72 hours.”5
27. In November 2016, the Houston Chronicle reported that, as a result of the persistent overcrowding, the Texas Commission on Jail Standards approved a request from Harris County “to let nearly 200 inmates sleep on plastic cots on the floor” while “warning that the county needs to think ahead about how to reduce its inmate population before its over-crowded jail system worsens.” The Houston Chronicle went on to explain that “Harris County Sheriff Ron Hickman said additional beds are needed because the jail population has ballooned from 8,500 inmates daily to 9,400 last month.” Throughout this period, Harris County continued to send hundreds of detainees to other county jails and to refuse transfers from the Houston Jail.6
28. The City of Houston and its chief policymakers, including the Mayor and Chief of Police at all times relevant to this class action, have long been aware of these delays and the constitutional violations that result.
29. In fact, Mayor Sylvester Turner himself has publicly acknowledged the significant overcrowding at the Harris County Jail. A report published by Mayor Turner in March 2016 stated that “the Harris County Jail is woefully overcrowded,” and that “Harris County is notorious for needlessly jailing Houstonians pretrial.”7
5 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (Sept. 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowded-thesheriff-delayed-inmate-transfers-8745391.
6 Andrea Zelinski, The Houston Chronicle, Jail commission approves COT plan request (Nov. 4, 2016), available at http://www.houstonchronicle.com/news/politics/houston/article/Jail-commission-OKs-county-request-fortemporary-10592050.php.
7 Mayor Sylvester Turner, Transition Committee on Criminal Justice (Mar. 1, 2016), available at https://www.houstontx.gov/mayor/transitionreports/criminal_justice.pdf.
8

30. Even though the City of Houston and its key policymakers know that the Harris County Jail is over capacity, the HPD still waits to transfer warrantless arrestees to the Harris County Jail for probable cause hearings rather than release them after 48 hours or bring them to a different county for a prompt hearing.
31. Due to the ongoing issues in Harris County, the City of Houston and its policymakers are also aware that a transfer to Harris County slightly before the 48-hour mark is unlikely to result in a timely probable cause hearing. But they detain people in these circumstances nonetheless, despite knowing of the constitutional and statutory violations that result.
32. Furthermore, the City of Houston remains under a federal court injunction requiring it to bring warrantless arrestees before a magistrate within 24 hours of arrest for a neutral determination of probable cause. The City and its chief policymakers are, therefore, on notice that there is a problem with their pre-trial detention system as a matter of law, and act with deliberate indifference to the Plaintiffs’ constitutional rights by allowing these unlawful detentions to continue.
33. This policy, custom, or practice—which has remained unchanged despite the injunction—has the inevitable and foreseeable result that numerous individuals arrested by the HPD without a warrant are denied their constitutional and statutory right to a prompt probable cause hearing.
34. Plaintiffs’ analysis of the County’s public booking records shows that between January 1, 2016, and July 15, 2016, over 1,400 arrestees were held in Houston’s City Jail for over 72 hours, and thousands more were held for over 48 hours. The Houston Press reported that in
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July and August 2016, over 1,000 inmates waited over 72 hours before being transferred to Harris County in those two months alone.8
35. Approximately 90% of arrests in Houston are made without warrants. Harris County’s publicly available data, therefore, indicates that hundreds, if not thousands, of individuals were held unlawfully in 2015 and 2016, and were denied their right to a neutral and prompt determination of probable cause.
36. The large number of illegal detentions in 2015 and 2016 reflects the City of Houston’s broad, longstanding, and consistent policy of refusing to release warrantless arrestees even if more than 48 hours have passed since their warrantless arrest. For example, booking records show that one person arrested on July 25, 2016, did not receive a probable cause determination until July 31, 2016 (more than 144 hours after arrest); another person, arrested on July 23, 2016, did not receive a probable cause determination until July 30, 2016 (more than 168 hours after arrest); and at least 35 other people in the months of July and August 2016 waited more than four days (96 hours) between arrest and a probable cause determination.
37. Nor has the City of Houston taken any other steps to ensure that individuals its Police Department arrests without a warrant receive their constitutional and statutory right to a prompt probable cause hearing. The City of Houston has authority, under the Texas Code of Criminal Procedure, to have arrestees taken “before a magistrate in any other county of this state” in order to ensure a prompt probable cause hearing. See Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). According to the Texas Jail Project, there are 273 county jails in Texas. Many are a short drive from the Harris County Jail, including the Montgomery County Jail in Conroe, Texas
8 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowdedthe-sheriff-delayed-inmate-transfers-8745391.
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(1 hour), the Walker County Jail in Huntsville, Texas (1.5 hours), and the Washington County Jail in Brenham, Texas (1.5 hours). But, ignoring widespread deprivations of Fourth Amendment rights, the City of Houston does not utilize this provision and instead transfers all of its warrantless arrestees to the Harris County Jail, exclusively.
38. Knowingly keeping arrestees beyond the constitutionally required time, or in the alternative transferring them to Harris County after a substantial delay with no expectation that they will receive a prompt hearing, demonstrates a deliberate indifference to the arrestees’ constitutional rights.
39. Houston’s policy, custom, or practice of continuing to detain arrestees after they have failed to receive prompt probable cause determinations is the moving force and direct cause of Plaintiffs’ unreasonable detentions, and is the moving force of the deprivation of their constitutional rights.
40. This persistent and widespread practice in the City of Houston continues despite the City of Houston’s awareness that the obvious consequence of this practice is the systematic denial of constitutional rights to individuals in its custody. Specifically, the Mayor and Chief of Police at all relevant times were aware of the policy, custom or practice, had actual or constructive knowledge that it was the moving force behind the violation of numerous individuals’ constitutional rights, and executed the policy, custom, or practice nonetheless.
DeQuan Kirkwood9 41. On July 25, 2016, DeQuan Kirkwood drove to visit his probation officer. 42. When he arrived, Houston police officers arrested Mr. Kirkwood for evading arrest with a vehicle.

9

Mr. Kirkwood’s first name is misspelled as “DeJuan” in some of his records.

11

43. Mr. Kirkwood’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 11:15 PM on July 25, 2016.
44. According to Harris County’s publicly available records, on July 28, 2016, at 1:23 AM, more than 50 hours later, Mr. Kirkwood was transferred to Harris County custody.
45. The City’s delay in bringing Mr. Kirkwood to the Harris County Jail was unreasonable and not justified by extraordinary circumstances.
46. At 7:00 AM on July 28, 2016—more than 55 hours after his arrest—Mr. Kirkwood appeared for his probable cause hearing.
47. The judge found there was no probable cause for Mr. Kirkwood’s arrest and continued detention. Mr. Kirkwood was promptly released.
Manuel Trevino 48. On July 27, 2016, Manuel Trevino was visiting a friend’s house when the Houston Police arrived and searched the house without a warrant. The police found narcotics in the home and arrested Mr. Trevino along with others in the house. 49. Mr. Trevino’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 1:55 PM on July 27, 2016. 50. According to Harris County’s publicly available records, on July 30, 2016, at 10:42 PM, Mr. Trevino was booked into Harris County custody. He had been detained in Houston custody for almost 81 hours without receiving a probable cause hearing. 51. According to the City’s arrest data, Mr. Trevino was released from the City’s custody on July 30, 2016, at 9:39 PM, almost 80 hours after his arrest. 52. The City’s delay in bringing Mr. Trevino to the Harris County Jail was unreasonable and not justified by extraordinary circumstances.
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53. On July 31, 2016, at 10:00 PM, a judge found probable cause for his arrest and continued detention—almost 104 hours after his arrest.
54. On October 28, 2016, Mr. Trevino pleaded guilty and received a deferred adjudication. He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody.
Kent Wheatfall 55. Kent Wheatfall is a retired U.S. Postal Service worker. 56. On January 7, 2016, Mr. Wheatfall was arrested for aggravated assault. Mr. Wheatfall’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 10:30 PM on January 7, 2016. 57. According to Harris County’s publicly available records, on January 10, 2016, at 1:52 AM, Mr. Wheatfall was booked into Harris County custody. He had been in Houston custody for more than 51 hours. At 4:00 AM that day—more than 53 hours after his arrest—Mr. Wheatfall received a probable cause hearing, where a judge found probable cause for his arrest and continued detention. 58. The City’s delay in bringing Mr. Wheatfall to the Harris County Jail was unreasonable and not justified by extraordinary circumstances. 59. On February 4, 2016, Mr. Wheatfall was released on bond. He was indicted on February 18, 2016. 60. On May 17, 2016, Mr. Wheatfall was rearrested and could not post bond. He was held until he pleaded guilty and received a deferred adjudication on February 10, 2017. He was not sentenced to any jail time, and his sentence was not credited with any time he spent in pre-trial custody.
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Juan Hernandez 61. On January 7, 2016, at about 4:30 PM, Houston police officers arrested Juan Hernandez, without a warrant, for misdemeanor assault. 62. Mr. Hernandez’s arrest was entered into the City of Houston’s and Harris County’s electronic records at 4:53 PM on January 7, 2016. 63. When Mr. Hernandez was brought to the Houston City Jail, a jail employee there told him that the Harris County Jail was full and that his transfer to Harris County would be delayed. She told Mr. Hernandez to “be patient.” 64. Later on, Mr. Hernandez saw a Houston City Jail employee that he knew. The employee said: “You still here? You should’ve been gone by now.” 65. According to Harris County’s publicly available records, on January 10, 2016, at 12:49 AM, Mr. Hernandez was booked into County custody without having received a probable cause hearing—almost 56 hours after his arrest. 66. Mr. Hernandez remembers being held for three days in the Houston City jail. 67. Harris County’s records reflect that Mr. Hernandez received a probable cause hearing before a judge on January 9, 2016, at 6:00 PM—more than 49 hours after his arrest. 68. The City’s delay in bringing Mr. Hernandez to the Harris County Jail was unreasonable and not justified by extraordinary circumstances. 69. Five days after his hearing—after a week in custody—Mr. Hernandez pleaded guilty. He was released and given community supervision without jail time.
Eric Aguirre 70. On March 10, 2018, at about 12:00 PM or 1:00 PM, Houston police offers arrested Eric Aguirre, without a warrant, for assaulting a family member.
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71. Mr. Aguirre’s arrest was entered into Harris County’s electronic records at 1:15 PM on March 10, 2018.
72. While in Houston custody, Mr. Aguirre was told that the reason that the jail was so crowded was because the Harris County Jail was too full.
73. According to Harris County’s publicly available records, on March 12, 2018, at 4:49 AM, Mr. Aguirre was booked into Harris County custody. He had been in Houston custody for more than 39 hours.
74. Mr. Aguirre remembers being brought to the courthouse around 10:00 AM on March 12, 2018 but having to wait with around nine other arrestees and not appearing before a judge until 8:00 or 9:00 PM that night—approximately 55 hours after his arrest.
75. Harris County’s records reflect that Mr. Aguirre received a probable cause hearing before a judge on March 12, 2018, at 10:00 AM—more than 44 hours after his arrest.
76. The City’s delay in bringing Mr. Aguirre to the Harris County Jail was unreasonable and not justified by extraordinary circumstances.
77. On March 14, 2018, Mr. Aguirre was released on $3,000.00 bond. 78. On July 26, 2018, a judge dismissed the charges. VII. CLASS ACTION 79. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 80. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class Members can challenge the City’s unlawful detention policy. 81. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(3) of the Federal Rules of Civil Procedure.
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82. This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those provisions.
83. The named Plaintiffs propose two classes seeking compensatory relief. 84. The first subclass is defined as: All persons who were arrested without a warrant by the City of Houston and held for 48 hours or more without a prompt judicial determination of probable cause at any time between December 6, 2014 (two years before the filing of this Complaint) and the date of the order granting class certification.10 85. The second subclass is defined as: All persons who were arrested without a warrant by the City of Houston and held for more than 24 hours and less than 48 hours without a prompt judicial determination of probable cause at any time between December 6, 2014 (two years before the filing of this Complaint) and the date of the order granting class certification. A. Numerosity. Fed R. Civ. P. 23(a)(1) 86. The individuals in the class are so numerous that joinder of all members would be impractical. 87. Harris County’s public booking records show that between January 1, 2016, and July 15, 2016, over 1,400 arrestees were held in Houston’s City Jail for over 72 hours, and that thousands more were held over 48 hours. Thousands more were held over 24 hours. The Houston Press separately concluded that in July and August 2016 alone over 1,000 inmates waited more than 72 hours before being transferred to Harris County.11
10 The statute of limitations for both claims is two years. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001).
11 Meagan Flynn, The Harris County Jail Got So Crowded the Sheriff Delayed Inmate Transfers, Houston Press (September 8, 2016), available at http://www.houstonpress.com/news/the-harris-county-jail-got-so-crowded-thesheriff-delayed-inmate-transfers-8745391.
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88. Publicly available data shows that violations occurred throughout 2016 and have
not abated. Thousands of arrestees were likely subjected to this policy during the class period.
Because joinder of thousands of plaintiffs would be impracticable, this case satisfies the
numerosity requirement.
B. Commonality. Fed. R. Civ. P. 23(a)(2) 89. The relief sought is common to all Class Members, and common questions of law
and fact exist as to all Class Members. The named Plaintiffs seek relief concerning whether the
City of Houston’s policies, practices, and procedures violated the rights of the Class Members.
90. Common legal and factual questions arise from one central scheme: the City’s
policy of detaining warrantless arrestees beyond 48 hours when there has not been a probable cause
determination by a neutral magistrate. The City of Houston has operated this policy openly and in
materially the same manner every day during the class period. The resolution of these legal and
factual issues will determine whether all of the Class Members are entitled to the relief that they
seek.
91. There are questions of law and fact common to all Class Members. Among these
common questions are:
a. Whether it violates the United States Constitution to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
b. Whether it violates state law to detain warrantless arrestees for unreasonable periods of time, including in excess of 48 hours, without a judicial determination of probable cause for the detention;
c. Whether the City of Houston maintained a policy, custom, or widespread practice of detaining warrantless arrestees for unreasonable periods of time, including routinely in excess of 48 hours, without a judicial determination of probable cause for the detention.
C. Typicality. Fed. R. Civ. P. 23(a)(3)
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92. The named Plaintiffs’ claims are typical of the claims of the other Class Members, and the named Plaintiffs have the same interests in this case as all other Class Members. Each Class Member was arrested without a warrant and did not receive a probable cause hearing within a reasonable period of time. Each waited longer than 48 hours without a judicial determination of probable cause. Defendant City of Houston denied each Plaintiff a prompt judicial determination of probable cause. The answer to whether the City of Houston maintains an unlawful policy of detaining warrantless arrestees for an unreasonable period, often for longer than 48 hours, in the absence of a judicial determination of probable cause will determine the claims of the named Plaintiffs and every other Class Member.
93. If the named Plaintiffs succeed in their claims that the City of Houston’s policies and practices concerning warrantless arrestees violate their rights, that ruling will likewise benefit every other member of the Class.
D. Adequacy. Fed. R. Civ. P. 23(a)(4) 94. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class Members, each of whom has the same basic constitutional and statutory claims. The named Plaintiffs are members of the Class, and there are no known conflicts of interest among the members of the Class, all of whom have a similar interest in vindicating their constitutional and statutory rights in the face of Defendant’s policy. 95. Plaintiffs are represented by attorneys from Civil Rights Corps, the Texas Fair Defense Project, and Kirkland & Ellis LLP, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendant’s scheme and the relevant constitutional and statutory law. Counsel from Civil Rights Corps have been lead
18

counsel in well over a dozen major federal class actions challenging the constitutionality of postarrest systems in Alabama, Georgia, Louisiana, Mississippi, Missouri, Texas, and other states.
96. Class counsel have conducted an investigation into the City of Houston’s policy, custom, or practice of detaining arrestees for unreasonable periods of time without a judicial determination of probable cause, and the near constant overcrowding in Harris County Jail. This investigation has included interviews with witnesses, city officials and employees, inmates, attorneys practicing in courts throughout the region, community members, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
97. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options available to municipalities that seek to comply with the Constitution.
98. As a result, counsel have devoted significant time and resources to becoming intimately familiar with the City’s scheme and with the relevant state and federal laws and procedures that can and should govern it. The interests of the Class Members will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(3) 99. Class treatment under Rule 23(b)(3) is appropriate because common questions of law and fact overwhelmingly predominate over individual ones and a class action is the only practicable way—and, therefore, the superior way—of resolving this case. This case turns, for every Class Member, on what the City’s policies, customs, or practices were and whether those policies, customs, or practices were lawful.
19

100. The common questions of law and fact listed above are dispositive questions in the case of every Class Member. The question of liability can therefore be determined on a class-wide basis. Class-wide treatment of liability is a far superior method of determining the content and legality of the City’s policies and practices than individual suits by hundreds or thousands of arrestees.
101. The question of damages will also be driven by class-wide determinations of common questions, such as the policies, practices, and conditions at the Houston Jail. To the extent that individual damages will vary, they will vary depending in large part on the amount of time the individual was unlawfully jailed. Determining damages for individual Class Members can be handled in a ministerial fashion based on easily verifiable records of the length of unlawful incarceration. If need be, damages sub-classes can be formed, and individual damages hearings based on special circumstances can be held, after class-wide liability is determined—a method far more efficient than litigating hundreds or thousands of individual lawsuits on the merits. VIII. CLAIMS FOR RELIEF
Count One: Defendant Violated Plaintiffs’ Fourth and Fourteenth Amendment Rights by Failing to Release Them When They Did Not Receive Timely Judicial Determination of Probable Cause 102. Plaintiffs incorporate by reference the allegations in paragraphs 1–89. 103. The Fourth Amendment requires a prompt judicial determination of probable cause after a warrantless arrest. McLaughlin, 500 U.S. at 47; Gerstein v. Pugh, 420 U.S. 103 (1975). This constitutional provision is presumptively violated after 48 hours absent extraordinary circumstances, which are not present here.12 Plaintiffs allege, pursuant to 42 U.S.C. § 1983, that
12 See, e.g., Waganfeald v. Gusman, 674 F.3d 475, 482 (5th Cir. 2012) (finding that the detention of warrantless arrestees in New Orleans during Hurricane Katrina fell within the emergency exception to McLaughlin’s 48-hour rule).
20

Defendant violated Plaintiffs’ Fourth and Fourteenth Amendment rights by failing to release them after it failed to ensure a prompt judicial determination of probable cause.
104. Defendant’s policy, custom, or practice of continuing to detain individuals arrested without a warrant even after they have not received a prompt probable cause hearing, rather than releasing them, is the moving force of the McLaughlin violations occurring in the City of Houston Jail.
105. This practice of the City is persistent and widespread, and is so common and well settled as to constitute a custom that fairly represents municipal policy.
106. Defendant and its chief policymakers, including the Mayor and Chief of Police at all relevant times, had actual or constructive knowledge of this policy, custom, or practice long enough to recognize and correct it.
107. By doing nothing to correct an ongoing pattern of constitutional deprivations of which it is well aware and has been aware for years, Defendant and its policymakers, including the Mayor and Chief of Police at all relevant times, adopted and executed this policy, custom, or practice on behalf of the City.
108. This policy, custom, or practice continues with the express or implied authority of Houston’s Mayor and Chief of Police.
109. In allowing this widespread policy, custom, or practice to persist, Defendant has demonstrated deliberate indifference to the ongoing and numerous constitutional violations that have affected thousands of individuals in the class period alone.
Count Two: Defendant Violated Plaintiffs’ Rights Under Texas State Law by Refusing to Release Them When They Did Not Receive Timely Judicial Determination of Probable Cause 110. Plaintiffs incorporate by reference the allegations in paragraphs 1–97.
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111. Texas state law requires that, where an individual is arrested without a warrant, “the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested . . . before a magistrate in any other county of this state.” Tex. Code Crim. Proc. §§ 14.06(a), 15.17(a). In the event that a prompt probable cause hearing has not been provided, Texas state law mandates that “a person who is arrested without a warrant and who is detained in jail must be released . . . not later than the 48th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.” Tex. Code Crim. Proc. § 17.033(b).
112. With respect to persons arrested for misdemeanors in counties that have over 3 million residents (Harris County has approximately 4.1 million residents), Texas state law requires that warrantless arrestees “must be released . . . not later than the 36th hour after the person’s arrest” if a magistrate “has not determined whether probable cause exists.” Tex. Code Crim. Proc. § 17.033(a-1).
113. The City of Houston unlawfully detained Plaintiffs under Texas State law when it failed to release them as required by Articles 14.06(a), 15.17(a), and 17.033(a-1) and (b) of the Texas Code of Criminal Procedure.
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IX. REQUESTS FOR RELIEF WHEREFORE, the named Plaintiffs, on behalf of themselves and a class of others
similarly situated, request that this Court issue the following relief: a. A judgment compensating named Plaintiffs and the Class Members for the damages they suffered as a result of Defendant’s unconstitutional and unlawful conduct, in an amount to be determined at trial; b. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964, and any other relief this Court deems just and proper; and c. Such other relief as this Court deems equitable, just, and proper.
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Dated: December 10, 2018

Respectfully submitted,
/s/ Patrick King Patrick King (TX Bar No. 24095186) Attorney-in-Charge Kirkland & Ellis LLP 609 Main Street Houston, Texas 77002 (713) 836-3632 Telephone (713) 835-3601 Facsimile patrick.king@kirkland.com
Amanda Elbogen (Admitted pro hac vice) Kirkland & Ellis LLP 333 South Hope Street Los Angeles, California 90071 (213) 680-8400 Telephone (213) 680-8500 Facsimile amanda.elbogen@kirkland.com
Alex S. Zuckerman (Admitted pro hac vice) Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 (212) 446-4800 Telephone (212) 446-4900 Facsimile alex.zuckerman@kirkland.com
/s/ Charles Gerstein Charles Gerstein (Admitted pro hac vice) Alec Karakatsanis Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20001 (202) 681-2409 charlie@civilrightscorp.org alec@civilrightscorps.org
Attorneys for Plaintiffs

 
 Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 12
United States District Court Southern District of Texas
ENTERED
July 03, 2019
David J. Bradley, Clerk

JUAN HERNANDEZ, et al.,
Plaintiffs, vs.
THE CITY OF HOUSTON, TEXAS,
Defendant.

§ § § § CIVIL ACTION NO. 4:16-CV-3577 § § § §

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on the plaintiffs’ motion for class certification. (Dkt.

Nos. 86). The defendant, the City of Houston, has filed a response in opposition to the

motion (Dkt. No. 112), the plaintiffs have filed a reply (Dkt. No. 115), and the City of

Houston has filed a sur-reply. (Dkt. No. 119). After having carefully considered the

plaintiffs’ motion, the opposition and reply briefs filed thereto, and the applicable law, the

Court determines that the plaintiffs’ motion for class certification should be GRANTED.

II. BACKGROUND

The named plaintiffs, Juan Hernandez, DeQuan Kirkwood, Manuel Trevino, Kent

Wheatfall, and Eric Aguirre (collectively, the “plaintiffs”), are five individuals who were

arrested without a warrant after December 5, 2014, and detained by the City of Houston

either for more than 48 hours or for more than 24 hours but less than 48 hours. The

defendant is the City of Houston, Texas (“the City”). The plaintiffs have initiated this

lawsuit against the City, alleging that the City routinely and callously disregards the Fourth

Amendment to the U. S. Constitution and Texas state law by arresting individuals without a

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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 2 of 12
warrant and detaining them in the City of Houston Jail for unreasonable periods of detention, without the requisite judicial probable cause determination.
Specifically, the plaintiffs contend that as a matter of policy and practice, probable cause determinations for warrantless arrestees in the City’s custody, who have not otherwise posted bail, are provided only after the arrestees have been transferred to the Harris County Jail. The plaintiffs maintain that whenever it takes longer than 48 hours to transfer such arrestees to the Harris County Jail, the City, as a matter of practice and custom, continues to detain the arrestees in its jail cells, without a neutral probable cause finding, instead of releasing them after 48 hours as the Fourth Amendment requires.
The plaintiffs have commenced this action pursuant to 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments to the U.S. Constitution and Texas law seeking compensatory damages for the City’s practice and custom of overdetaining warrantless arrestees. They now seek certification of the following classes:
Class A: All people arrested without a warrant after December 5, 2014, and detained by the City of Houston for more than 48 hours. Class B: All people arrested without a warrant after December 5, 2014, and detained by the City of Houston for more than 24 hours and less than 48 hours.
The City, in opposition, disputes the plaintiffs’ allegations and argues that the plaintiffs’ case is fundamentally flawed. It maintains that such delays, if any, are due to extraordinary circumstances, such as overcrowding. Further, the City opposes certification, claiming that the plaintiffs have failed to meet their burden of proof necessary to certify a class under Rule 23 of the Federal Rules of Civil Procedure. Specifically, the City argues that: (1) under Rule 23(a)(1), the plaintiffs’ claims of numerosity are inaccurate; (2) under
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 3 of 12
Rule 23(a)(2), the plaintiffs’ Class A and Class B claims lack commonality and cannot be resolved class-wide; (3) under Rule 23(a)(3), the plaintiffs’ Class A and Class B claims are not typical of the claims of the putative class members; (4) under Rule 23(a)(4), the named plaintiffs would be inadequate class representatives; and (5) under Rule 23(b)(3), individual issues predominate over common questions and a class action is not the superior method for resolving the plaintiffs’ claims. III. LEGAL STANDARD
Rule 23 of the Federal Rules of Civil Procedure governs federal class actions. Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005). “The party seeking [class] certification bears the burden of establishing that all requirements of Rule 23 have been satisfied.” Id. (citing Berger v. Compaq Comput. Corp., 257 F.3d 475, 479 - 80 (5th Cir. 2001) (emphasis in original)). To certify a class, a plaintiff must show that the putative class meets the four prerequisites contained in Rule 23(a),1 which are often referred to as “numerosity, commonality, typicality, and adequacy of representation.” Gene And Gene LLC v. BioPay LLC, 541 F.3d 318, 325 (5th Cir. 2008); see also Fed. R. Civ. P. 23(a). In addition to the aforementioned prerequisites, a plaintiff must establish that the action satisfies at least one of the three enumerated categories contained in Rule 23(b). Gene, 541 F.3d at 325 (citing
1 Rule 23(a) of the Federal Rules of Civil Procedure specifically provides: (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ .P. 23(a).
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Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 - 14, 117 S. Ct. 2231, 138 L. Ed.2d 689 (1997)).
Although a district court has broad discretion when deciding whether to certify a class, a court must, nonetheless, exercise that discretion “within the framework of [R]ule 23.” Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S. Ct. 2193, 2200, 68 L. Ed.2d 693 (1981)). District courts are to “conduct a ‘rigorous analysis of the Rule 23 prerequisites’ before certifying a class.” O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003) (quoting Castano, 84 F.3d at 740). When performing such an analysis, a district court is permitted to “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law’” in order to make a determination as to whether Rule 23’s prerequisites have been satisfied. O’Sullivan, 319 F.3d at 738 (quoting Castano, 84 F.3d at 744). IV. ANALYSIS AND DISCUSSION
A. Prerequisites Under Fed. R. Civ. P. Rule 23(a) 1. Rule 23(a)(1): Numerosity
In order to satisfy the first prerequisite under Rule 23(a), the numerosity requirement, a plaintiff must demonstrate that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A “mere allegation that the class is too numerous to make joinder practicable” will not suffice. Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000) (quoting Fleming v. Travenol Laboratories, Inc., 707 F.2d 829, 833 (5th Cir. 1983)). Instead, “a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Pederson, 213 F.3d at 868 (quoting Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981)). Generally,
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 5 of 12
a class of more than 40 members is presumptively sufficient to satisfy the numerosity requirement. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing 1 Newberg on Class Actions § 3.05, at 3–25 (3d ed. 1992) (“suggesting that any class consisting of more than forty members ‘should raise a presumption that joinder is impracticable’”)).
The plaintiffs have tendered a spreadsheet, produced by the City, reflecting the jail, arrest, and charging information for all individuals arrested during the class period. (See Dkt. No. 86, Ex. 1). Based on the spreadsheet, the plaintiffs contend that the City detained “at least 1,560 people in excess of 48 hours and at least 6,111 people in excess of 24 hours, all without the constitutionally required finding of probable cause.” (Dkt. No. 86 at 3; see also Ex. 1). The members of the proposed classes are ascertainable using objective standards and the data submitted. While the City disputes the accuracy of the plaintiffs’ calculations, asserting that “[e]liminating persons who were the subject of issued warrants at the time of their arrest [would] yield[] a materially smaller number of people,” it, nevertheless, concedes that even a few hundred class members would suffice to satisfy Rule 23(a)’s numerosity requirement. (Dkt. No. 112 at 22). Since the number of individuals who were detained for the requisite timeframes during the class period is quite substantial, and more likely than not greater than 100, the Court concludes that the number of potential class members in this lawsuit satisfies the numerosity requirement. See Mullen, 186 F.3d at 624 – 25.
2. Rule 23(a)(2): Commonality In order to establish the second prerequisite under Rule 23(a), the commonality requirement, a plaintiff must demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The threshold for establishing the commonality
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 6 of 12
requirement is not extraordinary and merely aims, at least partly, at “determining whether there is a need for combined treatment and a benefit to be derived therefrom.” Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) (internal citations omitted). To satisfy the commonality prerequisite, “plaintiff[s] need only show that ‘there is at least one issue whose resolution will affect all or a significant number of the putative class members.’” Doiron v. Conseco Health Ins. Co., No. 07-30357, 2008 WL 2199821, *2 (5th Cir. May 28, 2008) (quoting Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (citation omitted)).
The issue, however, “need not relate specifically to the damages component of the class members’ claims.” In re Deepwater Horizon, 739 F.3d 790, 810 (5th Cir. 2014). Rather, “the legal requirement that class members have all ‘suffered the same injury’ can be satisfied by an instance of the defendant’s injurious conduct, even when the resulting injurious effects—the damages—are diverse.” Id. at 810 – 11. The fact “[t]hat some of the plaintiffs may have different claims, or claims that may require some individualized analysis, is not fatal to [the] commonality” requirement. Doiron, 2008 WL 2199821, at *2 (internal quotations and citation omitted).
The City maintains that the plaintiffs have failed to satisfy the commonality requirements with regard to the proposed classes because neither Class A nor Class B’s claims can be resolved class-wide and the City’s defenses are plaintiff-specific. (See Dkt. No. 112 at 15 – 18). These alleged disparities, without more, are insufficient to defeat the commonality requirement. See Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988) (“Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 7 of 12
the class, and that the named plaintiff demonstrate a personal interest or ‘threat of injury . . . [that] is ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”) (internal citations omitted). In this case, there are questions of law and fact that are common to the class, such as whether the City has a policy or follows an alleged practice or custom of overdetention and whether such overdetention violates the Constitution and/or Texas state law. Despite the factual distinctions that might differentiate one class member from another, all purported class members will share these common questions. Accordingly, the Court determines that the plaintiffs have satisfied the commonality requirement.
3. Rule 23(a)(3): Typicality To satisfy the third prerequisite under Rule 23(a), the typicality requirement, a plaintiff must demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Much like the test for commonality, “the test for typicality is not demanding.” Mullen, 186 F.3d at 625. The typicality test “focuses on the similarity between the named plaintiffs’ legal and remedial theories and the theories of those whom they purport to represent.” Id. (quoting Lightbourn v. Cty. of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). The Supreme Court has explained the test as follows: The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13, 102 S. Ct. 2364, 2371, 72 L. Ed. 2d 740 (1982).
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 8 of 12
The City argues that the named plaintiffs’ damages are not typical of the classes they seek to represent, as each seeks individualized damages. (See Dkt. No. 112 at 15 – 18). This variance, alone, is not fatal to a finding of typicality, as diverse injurious effects, such as damages, are permitted as long as the named plaintiffs’ injuries arise from the same course of conduct that gives rise to the other putative class members’ claims. See In re Deepwater Horizon, 739 F.3d at 810 – 811. Here, the named plaintiffs’ claims are typical of the claims of the putative class members because they arise from an identical factual predicate and/or the same course of conduct and are premised on the same legal theory. The fact that some class members may have been overdetained for varying lengths of time is not determinative. Thus, the Court determines that the plaintiffs have satisfied the typicality requirement.
4. Rule 23(a)(4): Adequacy of Representation To meet the prerequisites of Rule 23(a)(4), the adequacy of representation requirement, the plaintiffs are required to establish that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Stated another way, “the court must find that class representatives, their counsel, and the relationship between the two are adequate to protect the interests of absent class members.” Unger, 401 F.3d at 321 (citing Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002)). “The adequacy inquiry . . . ‘serves to uncover conflicts of interest between the named plaintiffs and the class they seek to represent.’” Berger, 257 F.3d at 479 - 80 (5th Cir. 2001) (quoting Amchem, 521 U.S. at 625). Class representatives are required to have a sufficient level of knowledge and understanding so as to be capable of prosecuting or controlling the litigation. See Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 129 - 30 (5th Cir. 2005). Likewise, class counsel must be competent and zealous; all representatives must possess a willingness and
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ability “to take an active role in and control the litigation and to protect the interests of absentees.” Id. at 130 (internal citations omitted). “Differences between named plaintiffs and class members [will] render the named plaintiffs inadequate representatives only where those differences create conflicts between the named plaintiffs’ and the class members’ interest.” Berger, 257 F.3d at 480 (emphasis added); see also Mullen, 186 F.3d at 626 (acknowledging that while the differences described by the defendant could create variances in the ways that the named plaintiffs and putative class members prove causation and damages, the alignment of their interests will not be affected).
The City challenges the named plaintiffs’ adequacy on various grounds, namely that they lack sufficient knowledge and understanding of this case to adequately serve as class representatives and direct or control the instant litigation. The City does not, however, dispute class counsel’s adequacy and extensive litigation experience. Such adequacy is well established in the records now before the Court. With regard to the named plaintiffs, the City has set forth no evidence supporting a disparity between the interests of the named plaintiffs and those of the absent class members. Nor has it tendered any evidence of any internal class conflicts. The plaintiffs, on the other hand, have demonstrated that no conflicts of interest exist between the named plaintiffs and the putative class members. The plaintiffs have also established that the named plaintiffs share the same interest as the putative class members, in that they have suffered the same harm as that encountered by other putative members, and have a general understanding of their position as plaintiff representatives and knowledge concerning the wrongdoing alleged against the class as a whole. Accordingly, this Court determines that the plaintiffs have satisfied the adequacy of representation requirement.
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B. Prerequisites Under Fed. R. Civ. P. Rule 23(b)(3) After Rule 23(a)’s prerequisites are satisfied, a putative class must demonstrate that it qualifies under one of Rule 23(b)’s categories. See Fed. R. Civ. P. 23(b). In this case, the plaintiffs seek to certify Class A and Class B under Rule 23(b)(3).2 “To gain class certification under Rule 23(b)(3), a proposed class must satisfy Rule 23(a) and ‘[c]ommon questions must ‘predominate over any questions affecting only individual members’[,] and class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 525 (5th Cir. 2007) (quoting Amchem, 521 U.S. at 615, 117 S. Ct. at 2246) (quoting Fed. R. Civ. P. 23(b)(3)). The first prong of Rule 23(b)(3), the predominance inquiry, “is ‘more demanding than the commonality requirement of Rule 23(a)’ and requires courts ‘to consider how a trial on the merits would be conducted if a class were certified.’” Maldonado, 493 F.3d at 525 (quoting Bell Atl. Corp. v. AT & T Corp., 339 F.3d 294, 301 - 02 (5th Cir. 2003) (internal quotation marks omitted).
2 Rule 23(b) of the Federal Rules of Civil Procedure provides, in relevant part, as follows: (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Fed. R. Civ .P. 23(b)(3).
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The City argues that individual issues of law and fact predominate over common ones. This Court does not agree, as the plaintiffs have shown that the factual and legal issues that are common to the class members predominate over any such individualized issues. Indeed, the dominant issues in this case hinge on liability derived from the same course of conduct and premised on the same legal theory. The fact that the damages award for each class member may vary does not preclude a finding that common questions of law and fact predominate over any individualized issues because, here, the plaintiffs seek to litigate only the issue of general damages on a class-wide basis. Specifically, the plaintiffs “propose that the Court ask the jury to determine the appropriate general damages for each hour of unlawful detention but . . . leave any question of specific damages to individual resolution.” (Dkt. No. 86 at 14); see also In re Deepwater Horizon, 739 F.3d at 815 - 16 (quoting Bell Atl., 339 F.3d at 306) (“‘Even wide disparity among class members as to the amount of damages’ does not preclude class certification ‘and courts, therefore, have certified classes even in light of the need for individualized calculations of damages.’”). Under these circumstances, this Court determines that the predominance prerequisite has been satisfied.
The second prong of Rule 23(b)(3) requires that a class action be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The superiority requirement is “fact-specific and will vary depending on the circumstances of any given case.” In re TWL Corp., 712 F.3d 886, 896 (5th Cir. 2013) (quoting Robertson v. Monsanto Co., 287 Fed. Appx. 354, 361 (5th Cir. 2008)). When, as here, the potential individual recovery for extremely similar individual claims is so slight that it would not be economically efficient to maintain individual lawsuits, class treatment is appropriate. See Castano, 84 F.3d at 748 (“The most compelling rationale for finding
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Case 4:16-cv-03577 Document 154 Filed on 07/03/19 in TXSD Page 12 of 12 superiority in a class action [is] the existence of a negative value suit.”). Thus, the Court determines that a class action is superior to other mechanisms for adjudicating the underlying controversy. V. CONCLUSION
Based on the foregoing, the plaintiffs’ motion for class certification is GRANTED. It is so ORDERED. SIGNED on this 3rd day of July, 2019.
___________________________________ Kenneth M. Hoyt United States District Judge
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

United States District Court Southern District of Texas
ENTERED
August 30, 2018
David J. Bradley, Clerk

JUAN HERNANDEZ, et al,
Plaintiffs, VS.
CITY OF HOUSTON,
Defendant.

§ § § § CIVIL ACTION NO. 4:16-CV-3577 § § § §

ORDER AND FINDING ON SANCTIONS AND MOTIONS

I.

Before the Court are the plaintiffs’ proposed statement of undisputed facts and the

defendant’s counter findings of fact and/or objections to the plaintiff’s proposed statement. See

[Des 76, 77 sealed]. The Court has examined the plaintiffs’ proposed findings, in light of their

motion for sanctions and determines them appropriate, and supported by the record of

proceedings. Therefore, the Court adopts the plaintiffs’ statement of finding, as modified, and

rejects the City’s finding that are not incorporated.

II.

A. The November 8, 2017 ESI Order

On November 8, 2017, this Court entered the agreed Stipulation and Order Concerning

Production of Electronically Stored Information, ECF Doc. No. 40 [hereinafter ESI Order],

which was the product of four months of negotiations between the parties. The ESI Order

prescribed a specific process for handling discovery in this case and states that “[t]he Parties

shall conduct discovery in a cooperative manner, including . . . producing ESI in accordance

with Fed R. Civ. P. 34; and by meeting and conferring in good faith on topics such as

identification of custodians of relevant ESI, potentially relevant data sources, search

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methodologies, and such other issues as may arise during the course of discovery.” The ESI Order further provides that “[t]he parties shall apply agreed-upon search terms to custodian email as a mechanism to cull the volume of data subject to manual attorney review.” The parties’ agreed-upon search terms (henceforth the “ESI Order Search Terms”) were attached to the ESI Order as Appendix B.
In addition to the agreed-upon search terms, the ESI Order imposed a continuing obligation on the parties “to disclose additional search terms if manual review or other investigation identifies words, abbreviations, or phrases that are necessary to gather records responsive to document requests.” The ESI Order also defined the scope of discoverable sources of information, including “mainframe computers or local and network computers or drives or servers or any other media or location where ESI can be or is stored.”
Finally, the ESI Order designated specific custodians—i.e., Houston Police Department (“HPD”) officials—whose records the plaintiffs were seeking, attached to the ESI Order as Appendix A. The thirteen custodians listed in Appendix A of the ESI Order were: Chief of Police Art Acevedo, Executive Assistant Chief of Police George Buenik, Assistant Chief of Police John Chen, Lieutenant Patrick Dougherty, Captain Paul Follis, Chief of Police Charles McClelland, Chief of Police Martha Montalvo, Mayor Annise Parker, Captain Stephen Spears, Mayor Sylvester Turner, Captain Colin Weatherly, Assistant Chief of Police Charles Vazquez, and Sergeant Amanda Zimmerman.
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B. The City Violated the ESI Order (November 2017 – April 2018) Weeks after the Court entered an ESI Order, the City had still not supplemented the missing metadata from an earlier production to bring the production into compliance with the Court’s Order. Though counsel engaged in several meet and confers by phone, the City’s counsel repeatedly requested an in-person meeting in Houston. On December 13, 2017, during an in-person meeting in Houston at which the parties discussed the City’s technical issues relating to the production of arrest records, the City represented that (i) it had not interviewed any of the custodians listed in the ESI Order, (ii) it had not collected documents from any of the custodians listed in the ESI Order and (iii) it had “wiped” the hard drives of six custodians listed in Appendix B of the ESI Order who were no longer employed by the City At that meeting, the plaintiffs offered to provide names of vendors to help with document processing and review and offered to pay a substantial portion, if not all, of the costs that might be incurred. The City refused this offer and missed its December 15, 2017 deadline to certify document production was complete. On January 24, 2018, during a meet and confer, the City represented that it had collected 72,000 documents from the HPD database, but had yet to review them, despite the passage of the December 15, 2017 deadline for the completion of document discovery. Between January 24, 2018 and February 28, 2018, when the plaintiffs moved this Court to compel the City’s production of documents, the City’s only production of documents consisted of 126 files from the Mayor’s office on February 2, 2018. Each of the 126 documents was unresponsive to the plaintiffs’ document requests.
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During the April 3, 2018 hearing on the plaintiffs’ Motion to Compel, the City claimed it
had collected 2.6 million documents by running “word searches based on the ESI Protocol,” Ex.
A at 22:9-15, and it would take 17,000 hours to review all of those documents. During the April 3
hearing, the City stated on numerous occasions that it had gathered documents based on
the plaintiffs’ request. W hen this statement was disputed, the City said it could provide
the search parameters that were run, but stated that the protocol was the same ones that are in the
ESI protocol. Based on these representations, the plaintiffs agreed at the hearing to
provide a narrower set of search terms that would encompass only those documents related to
RFPs 1–4, 8 and 9, and agreed to run the narrowed search terms as the plaintiffs requested.
C. The April 10, 2018 Order
The Court’s April 10, 2018 Order compelled the City to “produce all non-privileged
documents responsive to the plaintiffs’ requests for production nos. 1-4, 8 and 9 in accordance
with the Court’s November 8, 2017, ESI Order.”
The Court further notified the City that
[f]ailure to comply with this Order will result in sanctions, including but not limited to monetary sanctions and an adverse inference instruction to a jury that any hard drives not produced of former Chief of Police Charles McLelland, Chief of Police Martha Montalvo, Executive Assistant Chief George T. Buenik, Lieutenant Patrick Dougherty, Assistant Chief John Chen, and Assistant Chief Charles Vazquez, were intentionally destroyed and contained documents and communications establishing that: (a) throughout the class period, the City of Houston had a policy and/or practice of not releasing warrantless arrestees who had not received neutral determinations of probable cause within the constitutionally required period of time; (b) throughout the class period, policymakers were aware of this policy and/or practice; and (c) although aware of the policy and/or practice took no action to correct the unconstitutional conduct through fully aware that such inaction would continue an unconstitutional policy of deliberate indifference to a known constitutional violation.
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Id. at 1–2. The following day, on April 11, 2018, the plaintiffs provided the City with their list of
narrowed search terms (“Plaintiffs’ April 2018 Search Terms”). These search terms were identical to the ESI Order Search Terms except that four of the search terms were removed. The April 2018 Search Terms contained 55 individual terms. The Martinez Affidavit attests that when the City ran the ESI Order Search Terms, it retrieved 78,702 documents from the City’s databases. When the City applied the plaintiffs’ April 2018 Search Terms, it retrieved 48,976 documents. Instead of reviewing this set of documents, the City then asked HPD members to identify their own search terms.
As support for the City’s Response to the plaintiffs’ motion to enforce the April 10, 2018 Order, the City provided an affidavit from Joe Martinez, a systems support analyst at the City of Houston’s Legal Department. ECF Doc. No. 62-1. The Martinez Affidavit attests that the City applied the HPD members’ proposed search terms: the so-called “HPD Terms of Art,” which consisted of 13 additional terms that were not disclosed to the plaintiffs until the filing of the City’s response on June 8, 2018.
The 13 “HPD Terms of Art” were as follows: “holds,” “48 hours,” “afis,” “drags,” “daily stats,” “county rejects,” “cancelled drags,” “daily shift population,” “county transfer se,” “county transfer central,” “shift 2 count,” “shift 1 count,” and “shift 3 count.” The 13 “HPD Terms of Art” retrieved 9,992 documents. It was these 9,992 documents that the City reviewed one by one for responsiveness. The City later admitted it never reviewed the remaining approximately 39,000 documents retrieved by the plaintiffs’ April 11, 2018 Search Terms.
The City’s production of all relevant documents responsive to RFPs 1–4, 8 and 9 was due April 30, 2018. On April 30, 2018, the plaintiffs received the City’s production, containing
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some 368 responsive documents. The City admitted that it only produced 368 responsive documents in response to the April 10, 2018 Order.
None of the 368 documents produced on April 30, 2018 contained documents from the disputed hard drives. Moreover, the April 30, 2018 production did contain several documents from Lieutenant Patrick Dougherty’s “thumb drive”—a removable drive. It is unclear whether any of these documents originated from his computer hard drive. Each of the documents produced on April 30, 2018, and the vast majority of the documents the City has produced to date, are missing crucial metadata that the City is required to provide under the ESI Order.
The plaintiffs requested a meet and confer on May 16, 2018. During that May 16, 2018 meet and confer, the City admitted that it had not actually reviewed all of the documents retrieved by the plaintiffs’ April 2018 Search Terms. Rather, the City represented to the plaintiffs that it had applied a different set of search terms—which it did not disclose to the plaintiffs during that call—in order to ease its production burden.
Upon questioning from the Court at the June 13, 2018 hearing, the City admitted that it had agreed to apply the ESI Order Search Terms, as narrowed by the plaintiffs’ April 2018 Search Terms. Nonetheless, the City admitted that it had applied its own search terms instead— the 13 “HPD Terms of Art” mentioned in the Martinez Affidavit—to unilaterally narrow the scope of their document collection and review. The City also admitted that it applied the new search terms on its own, without conferring with the Court and without proposing a change in the terms to the plaintiffs or informing the plaintiffs of the new terms. The City’s admission that it unilaterally changed the search terms constitutes a violation of the ESI Order.
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E. The City Intentionally Destroyed Evidence On December 13, 2017, during an in-person meeting in Houston to discuss the City’s technical issues relating to the production of arrest records, the City represented that it had wiped the hard drives of several custodians listed in Appendix B of the ESI Order, who were no longer employed by the City. On December 14, 2017, the plaintiffs asked the City to identify “which custodians [listed in the ESI Order] are no longer employed by the City. On December 18, 2017, the City’s counsel, Connica Lemond, identified those six custodians as Chief of Police Charles McClelland, Chief of Police Martha Montalvo, Executive Assistant Chief George T. Buenik, Assistant Chief John Chen, Lieutenant Patrick Dougherty and Assistant Chief Charlie Vazquez. Those hard drives contained ESI that should have been preserved by the City as soon as it anticipated litigation, and definitely after the instant lawsuit was filed. The City acknowledged its “clear obligation” to preserve all responsive documents after the litigation was pending. Yet the City failed to take reasonable steps to preserve the data on the hard drives and intentionally wiped the drives. The Court determines that the information on the hard drives cannot be restored or replaced through additional discovery. In connection with its response to the plaintiffs’ motion to compel and for discovery sanctions, the City provided the affidavit of Gregory Banks, which detailed certain HPD document policies (the “Banks Affidavit”). ECF Doc. No. 51-4. The Banks Affidavit confirmed that HPD employees’ computer hard drives are “re-imaged and re-issued as necessary” when the employee leaves the department. It also stated that documents saved to only a personal hard drive “only reside” on the personal hard drive. The City admitted that any reimaging of hard drives “would have wiped out anything” from the time period relevant to this litigation. The Court concludes that litigation hold was not properly issued in this case.
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On April 26, 2018, the City emailed the plaintiffs’ counsel saying that it was “sending a disk containing everything to you by FedEx/USPS so that you can have everything in hand by 4/30.” When the plaintiffs requested clarification on what the City meant by “everything” and whether that included documents from the hard drives, the City responded on April 27, 2018, saying that “the production we sent you does satisfy the requirement that the responsive, nonprivileged documents that would be on the hard drives of those individuals named in the judge’s order. [sic]”
The City further represented that: No responsive documents were found on the hard drives of the chiefs. Furthermore, in an abundance of caution, we reached out to the chiefs to ensure that we were looking at all of the areas that would have responsive documents. After speaking to each of the chiefs (as suggested by Judge Hoyt), it was clear that they saved documents on the shared drives for HPD and not their individual hard drives. Id. (emphasis added). In response, the plaintiffs’ counsel requested “the date and time of the conversations [the City’s counsel] had with the former City officials in question, as well as the names of all individuals who participated in those conversations.” The City returned with this list of the custodians and the dates and times of its conversations with each custodian:
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At the June 13, 2018 hearing, the Court noted that the City’s counsel’s conversations with HPD officials, unsupported by sworn affidavits, were insufficient to establish the absence of responsive documents on the wiped hard drives. The Court determined that the City has failed to comply with the Court’s orders and directed the plaintiffs’ counsel to prepare proposed findings of fact and a proposed remedy.
F. The City Made Misrepresentations to the Court About Its Flawed Discovery Process 1. The City represented that it needed to review 2.6 million documents
In the City’s Response to the plaintiffs’ motion to compel, the City claimed that the plaintiffs’ discovery requests were disproportionate to the needs of the case, representing that the City had collected 2.6 million documents in response to the requests. Again, during the April 3, 2018 hearing on the plaintiffs’ motion to compel, the City claimed that it had collected 2.6 million documents by running “word searches based on the ESI Protocol,” Ex. A at 22:9–15, and that it would take 17,000 hours to review these documents.
During the April 3, 2018 hearing, the City stated numerous times that it had “collected based on what the plaintiffs told us to collect.” The plaintiffs noted their lack of visibility into the City’s search process, see, e.g., id. at 39:19–21 (“[W]e really don’t understand the 2.6 million number; but we do not expect from our experience that it should be that high.”). To this remark, the Court suggested that the City was “creating a problem and then . . . . taking advantage of the problem . . . [by] creating a vastness of documents and then saying, ‘Ah, proportionality.’ You can’t have it both ways.” Id. at 29:14–17. In response, the City said it could “provide the search parameters that were run . . . to the plaintiffs’ counsel, but it’s the same ones that are in the ESI protocol.” Id. at 44:16–18; see also id. at 55:2–7 (the City again claimed that the search terms that generated 2.6 million documents were those contained in Appendix B
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of the ESI Order). These statements contradict the Martinez Affidavit that shows that when the City actually ran the ESI Order Search Terms, the terms retrieved only 78,702 documents. The City has failed to explain which search terms elicited 2.6 million documents.
In fact , the Martinez Affidavit lists yet another set of search terms run by the City and does not indicate how many documents these terms generated, suggesting these may be those terms. Pursuant to these search terms, the City searched documents for words like “24,” “arrest,” “chief,” “county,” “day,” “mayor,” and “without” with no search delimiters. Id. at 2–3. The search terms listed in Paragraph 5 of the Martinez Affidavit were not the ESI Order Search Terms or the plaintiffs’ April 2018 Search Terms. Compare ECF Doc. No. 62-1, at 2–3, with ECF Doc. No. 40 at app. B, and ECF Doc. No. 59-3.
2. The City did not review the 78,702 documents generated by the plaintiff’s April 2018 search terms.
According to the Martinez Affidavit, it was only after winnowing the document population to 9,992 using the 13 “HPD Terms of Art” that the City reviewed each document for responsiveness. ECF Doc. No. 62-1, at 6. Contrary to the Martinez Affidavit, the City represented to this Court that the City attorneys had reviewed each of the 78,702 documents retrieved by the ESI Order Search Terms. Ex. B at 18:11–12 (“So the 76,000 documents were reviewed one by one by the attorneys in the office.”). Upon being reminded by the plaintiffs’ counsel of the contents of the Martinez Affidavit, the City’s counsel then reversed her position and clarified that the City had only reviewed the 9,992 documents individually for responsiveness. Id. at 23:8–24:9.
3. The City represented that it had issued a litigation hold. The City had previously claimed that it “sent out a litigation hold” when the plaintiffs initially filed suit. Ex. A at 24:2–4; see also ECF Doc. No. 47-10, at 2. However, this appears to
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be contradicted by the Banks Affidavit. The Banks Affidavit indicated that the City had not issued a litigation hold notice to any City employees, stating, “Currently, all HPD email is archived indefinitely, so there has been no need to actually put a hold on any employee’s email.” ECF Doc. No. 51-4 at 2.
4. The City obfuscated the status of the hard drives At the April 3, 2018 hearing on the plaintiffs’ motion to compel, the City informed the Court that it had no reason to believe any relevant documents had been destroyed even though it had not reviewed any documents on the relevant hard drives. Ex. A at 25:19–22. The City went further, informing the Court that it could still search and produce the data on the hard drives it had previously represented were wiped. Id. at 48:24–25 (“We will have our people go through each person’s hard drive.”). Then, on April 26, 2018, the City represented that its last production, produced in response to the Court’s April 10, 2018 Order, contained “everything” responsive to the RFPs listed in the Order. ECF Doc. No. 59-7. When the plaintiffs requested clarification on what the City meant by “everything,” the City responded on April 27, 2018, saying that “the production we sent you does satisfy the requirement that the responsive, non-privileged documents that would be on the hard drives of those individuals named in the judge’s order. [sic]” ECF Doc. No. 59-7. The City further represented that “[n]o responsive documents were found on the hard drives of the chiefs.” ECF Doc. No. 59-7, Apr. 27, 2018 Email from C. Lemond. At the June 13, 2018 hearing, the City admitted that each of the six hard drives was indeed wiped clean after the litigation commenced, Ex. B at 32:11–33:7, contrary to its representations at the prior hearing and to the plaintiffs, see supra, ¶¶ 89–91. The City
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confirmed there were no longer any documents on those hard drives from the relevant time period. Ex. B at 35:17–23.
III. It is clear to the Court and the Court concludes that the City’s representation to the Court that it would “have our people go through each person’s hard drive,” Ex. A at 48:24–25, and that the City’s representation to the plaintiffs that “[n]o responsive documents were found on the hard drives of the chiefs,” ECF Doc. No. 59-7, were deliberate mischaracterizations. The City’s actions as found, heretofore, were intentional or the result of deliberate indifference. The City knew well that the evidence existed, that it was material to this litigation and that spoliation was an affront to discovery rules and the Court’s order. The affirmative acts that caused the spoliation found has not been credibly explained. Federal Rule of Civil Procedure 37(b)(2) provides that an order establishing contested facts as true is an appropriate remedy when a party violates a discovery order. See Rule 37(b)(2)(i)-(ii). This type remedy cures the violation without inflicting additional costs on the parties, and for that reason, the Court determines, in its discretion that entering an adverse inference finding is appropriate. See Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 413 (5th Cir. 2004). Therefore, the Court HOLDS that the following inference is appropriate based on the City’s conduct:
It is established that (a) throughout the class period, the City of Houston had a policy of not releasing warrantless arrestees who had not received neutral determinations of probable cause within the constitutionally required period of time; (b) throughout the class period, the City’s policymakers were aware of this policy; and (c) the City’s policymakers acted with deliberate indifference to the unconstitutional policy and the constitutional violations that resulted.
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It is so Ordered. SIGNED on this 30th day of August, 2018.
___________________________________ Kenneth M. Hoyt United States District Judge
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