SCANNED

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LAURIE TARDIFF
V
KNOX COUNTY,
And
DANIEL DAVEY, in His individual capacity and In his official capacity as Knox County Sheriff
And
JANE DOE, in her individual Capacity,
And
JOHN DOE, in his individual Capacity

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FIRST AMENDED

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COMPLAINT AND DEMAND

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FOR JURY TRIAL

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INTRODUCTION
1. This is a civil rights action for money damages against Knox County, Knox County Sheriff, Daniel Davey, and Correctional Officers Jane Doe and John Doe for injuries caused by the unconstitutional strip search of the Plaintiffs.
2. The named Plaintiff, Laurie Tardiff, seeks to represent a class of men and women who were admitted to the Knox County Jail while waiting for b~il to be set, or for an initial court appearance, or were arrested on arrest warrants, or charged with

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misdemeanors, or charged with felonies which would not give rise to a reasonable suspicion of hiding contraband, drugs, or weapons on their bodies. Included in this class are men and women who have been taken into custody by the Knox County Sheriffs Department, the Maine State Police, and the various police departments of Knox County. All the men and women of the class were incarcerated and housed at the Knox County Jail in Rockland, Maine. 3. Plaintiff and these other men and women have all been unlawfully subjected to strip searches and visual body cavity searches due to custom and practice adopted by Knox County and the Knox County Sheriff and implemented by the Knox County Sheriffs Department. The custom and practice of Knox County and the Sheriff requires that every person committed to the custody of the Knox County .Jail be strip searched and subjected to a visual body cavity search without any reason to believe a strip search or visual body cavity search is necessary or -constitutionally permissible. 4. Plaintiff seeks to have this Court declare that these strip searches are unconstitutional and to enjoin the Defendants from conducting strip searches and visual body cavity searches of women and men who are held awaiting bail, held for initial court appearance, held on arrest warrants, on minor misdemeanor charges, or on felony charges not raising a reasonable suspicion of the existence of contraband or dangerous weapons on the grounds that such searches violate Plaintiffs' constitutional rights to be free from unreasonable searches under both the Maine and United States Constitution.
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JURISDICTION
5. This action is brought pursuant to 42 U.S.c. §§ 1983 and 1988 and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343.
PARTIES
6. The named Plaintiff, Laurie Tardiff, was at all times relevant to this Complaint, a resident of the State of Maine. ,
7. The Defendant, Knox County, is a duly designated County in the State of Maine under the Laws of the State of Maine.
8. The Defendant, Daniel Davey, was at all times relevant to this Complaint, the Sheriff of Knox County. He is sued in his individual capacity and in his official capacity as Knox County Sheriff. The actions of Defendant Davey alleged in this Complaint were taken under color of law.
9. The Defendant, Jane Doe, is a correctional officer employed by Knox County. She is'sued in her individual capacity.
10. The Defendant, John Doe, is a correctional officer employed by Knox County. He is sued in his individual capacity.
11. The actions of Defendants Jane Doe and John Doe alleged in this Complaint were taken under color oflaw of the State of Maine.
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FACTS
12. On February 7,2001, at approximately 5:05 p.m., Plaintiff, Laurie Tardiff, was arrested at her residence, 53 Granite Street, Rockland, Maine by Rockland Police Officer Patrick Allen. She was allegedly arrested for tampering with a witness.
13. According to said Officer Allen, Ms. Tardiffwas arrested pursuant to an arrest warrant.
14. Prior to leaving home, Ms. Tardiff was required to empty her pockets in front of Officer Patrick Allen.
15. Ms. Tardiff, while under arrest, was taken to the Knox County Jail. 16. After arriving at the jail, Ms. Tardiff was booked in the intake area. 17. An unidentified officer of the Knox County Corrections Department asked that
Ms. Tardiff remove her overcoat and took it from her. 18. At that time, Ms. Tardiffwas only wearing a lingerie see-through shirt under her
overcoat. She had on no brassiere. 19. She asked Corrections Officer, Edward Colson, if she could have a men's
sweatshirt to put on to cover up her chest. He refused. 20. Also present at the time were Officers Kenny Hooper and Jay Costigan. Ms.
Tardiff asked them for something to cover up with. Officer Costigan refused saying, "He didn't have time for that." 21. Ms. Tardiffwas left standing there in a partially clad state for approximately ten minutes. During this time, five or more members of the Knox County Corrections
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Department and several inmates were able to observe Ms. Tardiff in her partially clad state. 22. After this, Ms. Tardiffwas removed to a shower area. 23. A female correction officer strip searched her. 24. She was told to remove her clothing. 25. She was told to squat and cough, exposing her vagina and anal cavity to the corrections officer. 26. She was required to repeat the squat and cough procedure three times. 27. The search ofthe Plaintiff conformed to the custom and practice of the Knox County Sheriffs Department. 28. After this, she was held for approximately 23 Yz hours without bail. 29. Plaintiff suffered extreme emotional distress as a result of the strip search and visual body cavity search conducted at the Knox County Jail. 30. Plaintiff, Laurie Tardiff, was shocked by the incident. Plaintiff, Laurie Tardiff, felt humiliated, degraded and violated. 31. The strip search of the Plaintiff by Defendant Jane Doe did not conform to the written strip search policy of the Defendant, Knox County, and specifically, Sheriff Department Policy Number C-120. 32. The strip search policy of Knox County and the custom and practice of the .sheriffs Department are unconstitutional. 33. The custom and practice of the Knox County Sheriff's Department is not in keeping with the Knox County Sheriff Department's own vlritten policy regarding strip searches and visual body cavity searches.
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34. It is the custom and practice of the Knox County Sheriffs Department to strip search every person taken into custody regardless of the length of time the person is to be held or the charges against the person.
35. It is the custom and practice of the Knox County Sheriffs Department to strip search each individual whether the individual is housed in a holding cell for a short period of time or mixed with the general population of the jail.
36. It is the custom and practice of the Knox County Sheriffs DepaJ.ime~t to strip search each individual whether the individual is charged with a misdemeanor or a felony.
37. It is the custom and practice of the Knox County Sheriffs Department to strip searchCevery woman and man taken into custody by the Knox County Corrections Department.
38. The Knox County Sheriffs Department conducts strip searches and body cavity searches of all women and men who are admitted to the jail whether they are charged with a misdemeanor or a felony, whether they are waiting for a bail bondsman or an initial court appearance, whether they are arrested on warrants, and whether they are held in a holding cell temporarily or mixed with the general popUlation.
39. In accb'rdance with the authority and provisions contained in 34-A M.R.S.A. §1208, the Department of Corrections is authorized and required to conduct biennial reviews of each jail in the State of Maine. The Knox County Jail was cited as deficient in at least two recent biennial inspection reports, 1994 and 2000 for strip searching all women and men taken into custody:
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40. The case involving Plaintiff, Laurie Tardiff, will not alone resolve the issue. In a recent case, Knox County was sued by Cannen Miller, a resident of Rockport, Maine. In 1996, Ms. Miller was stopped for an invalid inspection sticker. She was arrested when a license check erroneously detennined that she had an outstanding arrest warrant. She was j ailed over Patriots Day Weekend and subj ected to four separate strip searches during her period of incarceration. This was two years after the 1994 Biennial Inspection Report cited the Knox County Jail as deficient for wrongfully strip searching men and women. In February of2001, after jury selection, Ms. Miller settled her claim against Knox County in Federal Court. One week prior to settlement, on the day Ms. Miller picked her jury, Ms. Tardiffwas unconstitutionally strip searched at the Knox County Jail.
CLASS ACTION ALLEGATIONS
41. This action is brought pursuant to Rule 23(a)(b)(I),(2) and (3) ofthe Federal Rules of Civil Procedure by Plaintiff as a class action on behalf of all women and men ,*ho were or will in the future be: a) Taken into custody at the Knox County Jail before arraignment, or after ~m arrest, whether or not pursuant to a warrant; and b) Subjected to a strip search and visual body cavity search at the Knox County Jail in violation of its own policy but pursuant to the de facto policy practice or custom of conducting strip searches and visual body cavity searches of every person admitted to the jail.
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42. The named Plaintiff, Laurie Tardiff, is a member of the class. The class represented by the Plaintiff is so numerous that joinder of all such persons is impractical. On information and belief, the number of class members is more than five thousand people. The custom and practice of strip searching all men and women who came into the jail has existed for more than 10 years.
43. There are questions oflaw and fact that are common to the class of Plaintiffs. Central to all the claims is the constitutionality of the policy andlor practice of the Knox County Sheriff to routinely conduct strip searches and visual body cavity searches.
44. Plaintiff's claims or defenses are typical of the claims or defenses of the class of Plaintiffs.
45. Plaintiffwill fairly and accurately represent and protect the interests of the members of the class. The attorneys for the Plaintiff are experienced and capable in civilrights litigation and have successfully represented Plaintiffs in other civil rights litigation, including cases alleging unlawful strip searches, and in particular the case of Carmen Miller v. Knox County. Counsels have the resources and expertise to prosecute this action.
46. TIllS a.ction is properly maintainable as a class action because the prosecution of separate actions by the individual members of the class would create inconsistent and varying adjUdications with respect to individual members .of the class, which would establish incompatible standards of conduct for the Defendants.
47. This action is properly maintainable as a class action because the prosecution of separate actions would create a risk of adjudication with respect to individual
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members ofthe class, which would, as a practical matter, be dispositive of the interests of the other members who are not parties or substantially impair or impede their ability to protect their interests. 48. The Defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief or declaratory relief with respect to the class as a whole. 49. As a direct result of the errant policy and/or custom and practice, class members have been subject to unlawful strip searches and visual body cavity searches, which has caused each member of the class to endure pain and suffering and mental anguish.
COUNT 1: 42 U.S.C. §1983 DEFENDANT, KNOX COUNTY 50. The Plaintiff repeats and realleges Paragraphs 1 through 49 of the Complaint as if
more fully set forth herein. 51. The errant policy and/or custom and practice of the Knox County Sheriffs
Department of strip searching and conducting visual body cavity searches of all men and women taken into custody violates the United States Constitution, the Constitution of the State of Maine, and State Law. 52. By the actions described above, the Defendant has deprived the Plaintiff and members of the Plaintiff Class of their clearly established right guaranteed by the Constitution of the United States to be free from an unreasonable search and seIzure. 53. The Defendant, Knox County, by and through its agents, servants, and/or employees, knowingly and in deliberate indifference to the Constitutional Rights
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of the citizens of Knox County and the State of Maine, maintained and permitted official policies and customs ofpermitting the occurrence of the types of wrongs set forth herein above. These policies and customs include, but are not limited to, the deliberately indifferent training of their employees in matters pertaining to strip searches and visual body cavity searches. 54. Plaintiff, on information and belief, alleges that such errant policies and/or customs and practices of the Defendants were the moving force behind the violation of Plaintiff, Laurie Tardiffs rights and the Defendants, each ofthem, are liable for all of the injuries sustained by the Plaintiff as set forth herein above. 55. As a direct and proximate result of this conduct, Plaintiff suffered injuries including, but not limited to: assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and depravation of constitutional rights.
WHEREFORE, Plaintiffs request that this Court: A. Certify the class and appoint Laurie Tardiff, Plaintiff, to serve as the
named Plaintiff representing the entire class of people subjected to unconstitutional strip searches by Knox County. B. Declare the policy or practice of conducting strip searches and visual body cavity searches of detainees illegal and unconstitutional and enjoin enforcement of that policy as practiced in Knox County;
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C. Award compensatory damages to the individual Plaintiff and to members of the Plaintiff Class;
D. Award punitive damages against the Defendant, Daniel Davey. E. Award the Plaintiffs the cost of this action including reasonable attorney's
fees; and F. Award whatever additional relief this Court deems necessary and just.
COUNT II: 42 U.S.C. §1983 DEFENDANT, SHERIFF DANIEL DAVEY
56. The Plaintiffs repeat and reallege Paragraphs 1 through 55 of this Complaint as if more fully set forth herein.
57. Defendant, Daniel Davey, is the Sheriff and is the policy maker for the Knox County Jail.
58. Defendant Davey implemented and maintained a policy and practice of conducting strip searches and visual body cavity searches of all persons who were admitted to the.Knox County Jail, regardless of the nature of charges or the circumstances of the individual.
59. Defendant Davey !mew or should have !mown that the strip search policy and practice at the Knox County Jail, and as implemented by its personnel, would directly result in correctional officers conducting unconstitutional searches of every man and woman who was held in the jail.
60. Defendant Davey !mew or should have !mown that it was clearly established law as of 1986 that ... "no law enforcement officer reasonably could have believed

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that it was permissible to perform such a search absent indIvidualized reasonable suspicion" Shain v. Ellison, 273 F.3Td 56, {2nd Cir. 2001.}. 61. Defendant Davey established and enforced the policy and practice of conducting routine strip searches and body cavity searches, without legal authority or any reason to believe the men and women so searched had anything concealed on his or her person. 62. Defendant Davey implemented and maintained this strip search policy and practice. 63. As a result of Defendant Davey's conduct, Plaintiff was subjected to the strip search described above. 64. Even after Defendant Davey had actual notice that the policy and practice of strip . searching women and men was unconstitutional, he continued to enforce that unconstitutional policy and practice. 65. . Defendant Davey acted with reckless indifference to the Constitutional Rights of the men and women detained by the Knox County Jail. 66. As a direct and proximate result of this conduct, Plaintiff suffered injuries including, but not limited to: assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish,
embaJ~ssment, invasion of privacy, violation of constitutional rights, and
depravation of constitutional rights. WHEREFORE, Plaintiffs request that this Court:
A. Certify the class and appoint Laurie Tardiff, Plaintiff, to serve as the named Plaintiffrepresenting the entire class ofpeople subjected to
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unconstitutional strip searches by Knox County and Defendant Daniel Davey. B. Declare the policy or practice of conducting strip searches and visual body cavity searches of detainees illegal and unconstitutional and enjoin enforcement of that policy as practiced in Knox County; C. Award compensatory damages to the individual Plaintiff and to members of the Plaintiff Class; D. Award punitive damages against the Defendant, Daniel Davey in his individual capacity. E. Award the Plaintiffs the cost of this action including reasonable attorney's fees; and F. Award whatever additional relief this Court deems necessary and just.
COUNT III: PUNITIVE DAMAGES
67. The Plaintiff repeats and realleges Paragraphs 1 through 66 of the Complaint as.if more fully set forth herein.
68. The conduct of the Defendant, Daniel Davey, was intentional and malicious, or said conduct was so reckless, deliberate, and outrageous, as to be beyond all bounds of decency and to imply malice toward the Plaintiff.
-69. Asa direct and proximate result of said intentional, reckless, deliberate, malicious, and/or outrageous conduct ofthe Defendant, the Plaintiff was caused to suffer severe emotional and physical distress, humiliation and mental anguish, all as more p~icularly set forth herein above.
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WHEREFORE, the Plaintiffs request that this Court award punitive damages against the Defendant, Daniel Davey, in his individual capacity, and award whatever additional relief this Court deems necessary and just.
COUNT IV: 42cU.S.C. §1983 DEFENDANT, JANE DOE
70. Plaintiff repeats and realleges Paragraphs 1 through 69 of the Complaint as if more fully set forth herein.
71. At all times relevant to this Complaint, Defendant, Jane Doe, was acting under color of the Laws of the State of Maine and Knox County.
72. Defendant Jane Doe conducted an illegal and unconstitutional strip search and visual body cavity search on Plaintiff, Laurie Tardiff.
73. Defendant Doe had no legal justification for conducting a strip search or a visual body cavity search of the Plaintiffs person.
74. By the actions described in the preceding paragraphs, the Defendant deprived the Plaintiff of clearly established rights guaranteed by the Constitution of the United States and by th~ State of Maine, which includes freedom from an unreasonable search and seizure.
75. As a direct and proximate result ofthe acts of the Defendant, the Plaintiff suffered the injuries described above.
WHEREFORE, Plaintiffs request that this Court:
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A. Certify the class and appoint Laurie Tardiff, Plaintiff, to serve as the named Plaintiff representing the entire class of people subjected to unconstitutional strip searches by Knox County and Defendant Jane Doe.
B. Declare the policy or practice of conducting strip searches and visual body cavity searches of detainees illegal and unconstitutional and enjoin enforcement of that policy as practiced in Knox County;
C. Award compensatory damages to the individual Plaintiff and to members of the Plaintiff Class;
D. Award punitive damages against the Defenda~t, Jane Doe to the individual Plaintiff, Laurie Tardiff, and all members of the Plaintiff class.
E. Award the Plaintiffs the cost of this action including reasonable attorney's fees; and
F. Award whatever additional relief this Court deems necessary and just. COUNT V: PUNITNE DAMAGES
76. The Plaintiff repeats and realleges Paragraphs I through 75 of the Complaint as if more fully set forth herein.
77. The conduct of the Defendant, Jane Doe, was intentional and malicious, or said conduct was so reckless, deliberate, and outrageous, as to be beyond all bounds of decency and to imply malice toward the Plaintiff
78. As a direct and proximate result of said intentional, reckless, deliberate, malicious, and/or outrageous conduct ofthe Defendant, the Plaintiff was caused
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to suffer severe emotional and physical distress, humiliation and mental anguish, all as more particularly set forth herein above. WHEREFORE, the Plaintiffs request that this Couri award punitive damages against the Defendant, Jane Doe, and award whatever additional relief this Court deems necessary and just.
COUNT VI: 42 U.S.C. §1983 DEFENDANT, JOHN DOE
79. Plaintiff repeats and realleges Paragraphs 1 through 78 of the Complaint as if more fully set forth herein.
80. At all times relevant to this Complaint, Defendant, John Doe, was acting under color of the Laws of the State of Maine and Knox County.
81. Defendant John Doe conducted an illegal and unconstitutional strip search and visual body cavity search on Plaintiff, Laurie Tardiff.
82. Defendant Doe had no legal justification for conducting a strip search or a visual body cavity search ofthe Plaintiffs person.
83. By the actions described in the preceding paragraphs, the Defendant deprived the Plaintiff of clearly established rights guaranteed by the( Constitution of the United States and by the State of Maine, which includes freedom from an unreasonable search and seizure.
84. As a direct and proximate result ofthe acts of the Defendant, the Plaintiff suffered the injuries described above.
WHEREFORE, Plaintiffs request that this Court:
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A. Certify the class and appoint Laurie Tardiff, Plaintiff, to serve as the named Plaintiff representing the entire class of people subjected to unconstitutional strip searches by Knox County and Defendant John Doe.
B. Declare the policy or practice of conducting strip searches and visual body cavity searches of detainees illegal and unconstitutional and enjoin enforcement of that policy as practiced in Knox County;
C. Award compensatory damages to the individual Plaintiff and to members of the Plaintiff Class;
D. Award punitive damages against the Defendant, John Doe to the individual Plaintiff, Laurie Tardiff, and all members of the Plaintiff class.
E. Award the Plaintiffs the cost of this action including reasonable attorney's ; fees; and
F. Award whatever additional relief this Court deems necessary and just. COUNT V: PUNITIVE DAMAGES
85. The Plaintiff repeats andrealleges Paragraphs 1 through 84 of the Complaint as if more fully set forth herein.
86. The conduct of the Defendant, John Doe, was intentional and malicious, or said conduct was so reckless, deliberate, and outrageous, as to be beyond all bounds of decency and to imply malice toward the Plaintiff
87. As a direct and proximate result of said intentional, reckless, deliberate, malicious, andlor outrageous conduct of the Defendant, the Plaintiffwas caused
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to suffer severe emotional and physical distress, humiliat:lon and mental anguish, all as more particularly set forth herein above. WHEREFORE, the Plaintiffs request that this Court award punitive damages against the Defendant, John Doe, and award whatever additional relief this Court deems necessary and just.

DEMAND FOR JURY TruAL

Plaintiffs hereby demand a jUrycai ; : : : : U l e s of Civil Procedure,
RUle38._~

Dated IVJ.!fv

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Sumner H. Lipman, Esq., Bar No. 300

LIPMAN, KATZ & MCKEE, P.A.

227 Water Street, P.O. Box 1051

Augusta, ME 04332..1051

207/622-3711

Dated /2-,.:;"1,.. () "2> I

103. Main Street, P.O. Box 160 Newport, ME 04953 207/368-7755 Email: dthistle@midmaine.com
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 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

LAURIE TARDIFF, individually and on behalf of others similarly situated,
Plaintiffs

v.

Civil No. 02-251-P-C

KNOX COUNTY, DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff, and JANE DOE and JOHN DOE, in their individual capacities,
Defendants
Gene Carter, Senior District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION PARTIAL FOR SUMMARY JUDGMENT Plaintiffs bring this action against Defendants Knox County, Knox County Sheriff Daniel Davey, and individual corrections officers Jane Doe and John Doe for violations of their civil rights pursuant to 42 U.S.C. § 1983. See Amended Complaint (Docket Item No. 2). Specifically, Plaintiffs’ Amended Complaint alleges that as a result of being strip searched without reasonable suspicion their constitutional rights were violated by Knox County (Count I), Sheriff Daniel Davey (Count II), Corrections Officer Jane Doe (Count IV) and Corrections Officer John Doe (Count VI).1 The class previously certified in this case is as follows:

1 Counts III, V, and VII request punitive damages based on the alleged constitutional violations.

All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or
(3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.
Plaintiffs now move for Summary Judgment with respect to all liability claims.
I. FACTS
A. State Standards Applicable to the Knox County Jail
In Maine, the specific standards pursuant to which strip searches may be
undertaken in correctional facilities come from the Attorney General. See 5 M.R.S.A.
§200-G(1)(2002) (directs the Attorney General to develop rules governing strip searches
and body cavity searches). The Attorney General’s Rules for Strip Searches define a
strip search as “a search during which the arrestee’s body surface, including an arrestee’s
anal cavity and a female arrestee’s vaginal cavity and breasts, is visually inspected.” Plaintiffs’ Ex. 10; Defendants’ Ex. 58.2 The Attorney General’s “Rules for Strip
Searches, Mouth Searches and Body Cavity Searches of Arrestees” provides, in relevant
part:
2 There have been no substantive changes to the Attorney General's Rules since they were created in 1986. Hinckley Depo. at 42.
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1. Strip searches and mouth search. An arrestee may be subjected to a strip search and mouth search if any one of the following preconditions for such searches exists:
A. Probable cause and warrant. ….
B. Contact with inmates of a detention facility-arrestee for murder or a Class A, B, or C crime. An arrestee for murder or a Class A, B, or C crime, or a corresponding juvenile offense, may be subjected to a strip search and mouth search if such arrestee is about to come into contact with any inmate of a detention facility.
C. Contact with inmates of a detention facility – all other arrestees. An arrestee for other than murder or a Class A, B, or C crime, or corresponding juvenile offense, may be subjected to a strip search and mouth search if
1) the law enforcement officer authorizing such search has reasonable suspicion to believe that the arrestee is concealing on or inside his body a weapon, contraband, or evidence of a crime, and
2) the arrestee is about to come into contact with any inmates of a detention facility. Reasonable suspicion may be based on such factors as the nature of the offense for which the arrestee is arrested, the nature of offenses for which the arrestee has previously been arrested, the arrestee’s appearance, and the arrestee’s conduct.
Defendants’ Ex. 58. The Standard, which the Department of Corrections applies for strip searches, provides:
D.22. Strip searches shall be conducted in compliance with the rules promulgated by the Maine Attorney General under 5 MRSA, Section 200G. At a minimum, strip searches shall:
a. Be conducted only by, and in the presence of, staff of the same sex as the inmate;
b. Be conducted in private and in a manner that preserves the dignity of the inmate;
c. At the time of arrest or admission to the facility, may conduct a strip search when a pre-trial inmate charged or held for murder, or a Class A, B, or C offense;
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d. At the time of arrest or admission to a facility, not conduct a strip search of a pre-trial inmate charged with a Class D, E or other misdemeanor offense unless the officer has reasonable suspicion to believe that an inmate is concealing contraband and is about to come into contact with inmates of the facility;
e. In the case of an inmate taken into custody for execution of a sentence or already an inmate of a detention facility, be subject to strip search at any time, to include when the inmate enters or leaves a security perimeter;
f. All strip searches conducted at the time of arrest or admission shall be recorded and include at a minimum:
1. Name of the inmate and the staff person conducting the strip search and other persons present;
2. In the case where required under 5 MRSA, Section 200G, justification for the strip search.
Defendants’ Ex. 57.
Maine law requires that “Each strip search or body cavity search shall be recorded
in a log kept by the Department of Public Safety, sheriff's department or police
department indicating the person who ordered the search, the name of the arrestee and the
parts of the body searched.” 5 M.R.S.A. § 200-G(2)(D). With respect to record keeping
the Attorney General’s Rules provide:
Each strip search, mouth search, and body cavity search of an arrestee shall be recorded in a log kept by the law enforcement agency whose officers were involved in the search.
The log shall indicate the name of the officer who ordered the search, the name of the officer or medically trained personnel who conducted the search, the names of the officers present at the search, the name of the arrestee, the parts of the body searched, and the justification or justifications for the search, e.g., (1) search warrant, (2) exigent circumstances and probable cause, (3) consent, (4) contact of arrestee for murder, a Class A, B, or C crime, or corresponding juvenile offense, with inmates of a detention facility, or (5) reasonable suspicion combined with contact of arrestee for other than murder, a Class A, B, or C crime, or corresponding juvenile offense, with inmates of a detention facility.
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Where the justification for a warrantless search is based on the existence of probable cause or reasonable suspicion, such probable cause or reasonable suspicion shall be summarized in the log. Defendants’ Ex. 58.
B. Knox County Jail and Sheriff Davey’s Policies on Strip Searches Daniel Davey is the elected Sheriff of Knox County in 1985 and has served as Sheriff continually since then. Davey Aff. ¶ 1. As Sheriff of Knox County, Mr. Davey has final decision-making authority with respect to all policy and operational matters at the Knox County Jail. Davey Aff. ¶ 2. Officially established jail policies and procedures are generally drafted by the Jail Administrator, and then provided to Sheriff Davey for approval. Davey Aff. ¶ 2. All jail policies are also provided to the Department of Corrections for approval. Id. Sheriff Davey is the only individual at the Knox County Jail with the ability to make final decisions regarding the implementation of a jail policy or procedure. Id. Knox County Jail Policy D-220 entitled “Search Procedures” was revised in January 1994, and provided in relevant part: Procedure A Search Procedures – General
Body searches will be performed on inmates in the least degrading manner by corrections officers prior to beginning the admission process. The officer performing the search will:
Strip search all incoming inmates prior to placement in the general population; …. …. Procedure C Inmate Strip Search
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Definition: A strip search is any unclothed search during which the inmate’s body surface and cavities are visually inspected, with lifting or moving of body parts done by the individual being searched. The intake Officer will conduct a strip search and mouth search on any inmate admitted to the facility who is:
Unable to bail on charges. Charged with murder, or Class A, B or C crimes whether the individual is an adult or juvenile. Allowed contact with any other inmate in the jail. Exceptions: If an officer has reasonable suspicion to believe an inmate is concealing on or inside his/her body a weapon, contraband or evidence of a crime. Defendants’ Ex. 52. 1. 1994 Department of Corrections Policy Review and Jail Inspection In May of 1994, the Department of Corrections conducted a review of Section D of the Knox County Jail Policy and Procedure Manual. The review was conducted by Maine Jail Inspector John Hinckley. Davey Aff. ¶ 7; Affidavit of Raymond Voyer ¶ 2. The policy review informed Sheriff Davey that Policy D-220, pertaining to body searches, needed to be revised to comply with the Attorney General’s Rules for searches. Davey Aff. ¶ 7; Voyer Aff. ¶¶ 3, 4; Defendants’ Ex. 55. In September, October, and November of 1994, the Department of Corrections undertook an inspection of the Knox County Jail. Mr. Hinckley, conducted that inspection and, during that inspection, Lt. Cathy Wyman indicated to Mr. Hinckley that Knox County strip searched all the detainees. Hinckley Depo. at 80, 124; Defendants’ Ex. 59 (“While it appears that this facility is in partial compliance, based on policy and staff statements, all inmates are being strip searched if they are to be housed. This is in violation of D.22.d.”).
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A revised Knox County Policy D-220 was approved by the Department of Corrections and went into effect in October of 1994. Defendants’ Ex. 53. In relevant part, the new search procedure provided:
Procedure A Search Procedures – General Body searches will be performed in the least degrading manner by corrections officers prior to the admission process. The officer performing the search will ensure that: …. Strip searches will be conducted only on inmates brought in on a felony charge (A, B or C crime) or if the officer(s) have reasonable suspicion that contraband, i.e., a weapon, drugs or evidence of a crime may be concealed under their clothing. ….
…. Procedure C Inmate Strip Search
Definition: A strip search is any unclothed search during which the inmate’s body surfaces and cavities are visually inspected, with the lifting or moving of body parts done by the individual being searched; all clothing items of said individual will also be searched thoroughly in the process. Strip searches will be performed inside the Booking area in the shower stall after a pat search has first been done before admitting the detainee beyond the 110E door. 1. The intake (Booking) Officer will conduct a strip search of any inmate admitted to the facility who is:
a. Charged with murder, or a Class A, B or C crime and, b. unable to bail on charges, and, c. before coming in contact with any other inmate.
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Defendants’ Ex. 53. Jail Administrator Raymond Voyer3 was instructed that the new policy be included in the Policy and Procedure Manual, and that all corrections staff be trained in the policy and requirement to implement it. Davey Aff. ¶ 10; Voyer Aff. ¶ 13.
In December of 1994, the Department of Corrections issued a report which Sheriff Davey and Mr. Voyer received. Defendants’ Ex. 59; Davey Aff. ¶ 11; Voyer Aff. ¶ 6. The report identified certain areas of non-compliance with the Department of Corrections Standards.4 Relevant to the issues raised in this case, the report found that Department of Corrections Standards and Attorney General’s Rules for strip searches were being violated because “based on policy and staff statements, all inmates are being strip searched if they are housed.” Defendants’ Ex. 59 at 31; Davey Aff. ¶ 11; Voyer Aff. ¶ 6; Hinckley Depo. at 77, 79; Plaintiffs’ Ex.10, Attorney General's Rules and Regulations. As a result of the 1994 policy review and the jail inspection, Sheriff Davey instructed Mr. Voyer to revise Policy D-220 to comply with Department of Corrections Standards and the Attorney General’s Rules. Davey Aff. ¶ 9; Voyer Aff. ¶ 5. Mr. Voyer made revisions and Sheriff Davey approved them. Id.
A few months later, Mr. Voyer made further revisions to both Policy C-120 and D-220, and in January 1995 Sheriff Davey approved them. Defendants’ Exs. 48, 54; Voyer Aff. ¶ 12; Davey Aff. ¶ 15. Policy C-120 –“Admission Procedures - Inmates Not Bailed” provides in relevant part:
The following admissions procedures are not required to be completed on inmates being admitted and immediately released. Procedures, as outlined
3 Mr. Voyer held the position of Knox County Jail Administrator from sometime in 1989 until May of 1996. Voyer Aff. ¶ 1. 4 Since inspection of the jail began in September 1994, some of the information included in the 1994 Jail Inspection Report may have occurred before Knox County Policy D-220 was revised in October 1994.
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below, are necessary to safely admit inmates who are not going to make bail, while protecting their rights.
PROCEDURE A Strip Search/Decontamination
1. Strip searches will be conducted on pre-trial inmates at the time of arrest or admission to the facility if they are charged or held for murder or a class A, B or C crime[]; they will be conducted only under the following conditions:
a. They shall be conducted only by, and in the presence of, staff of the same sex as the inmate.
b. They shall be recorded and include at a minimum:
(1) Name of inmate. (2) Name of staff person doing the search. (3) Name of any other persons present. (4) Justification for search if required under 5 MRSA,
Section 200G.
2. Strip searches will also be conducted on inmates taken into custody for execution of a sentence or already an inmate of a detention facility, to include when the inmate(s) enter or leave a security perimeter.
3. Strip searches will NOT be conducted at the time of arrest or admission on pre-trial inmates charged with a class D, E, or other misdemeanor offense unless the officer has REASONABLE SUSPICION to believe that an inmate is concealing contraband and is about to come in contact with other inmates of the facility.
Defendants’ Ex. 48. Policy D-220 –“Search Procedures” became effective January 1995
and provides, in relevant part:
Contraband in a correctional facility creates a danger to staff, visitors and residents. In an effort to stem the flow of contraband, facility shakedowns, searches of common and living areas will be performed, in addition to body searches of inmates in accordance with the Maine State Attorney General’s Rules for Searches and the Maine Jail Standards.
Officers must act in a professional manner while performing pat and strip searches and do them in the least degrading manner possible.
PROCEDURE A Search Procedures, General
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1. Body searches will be performed in the least degrading manner by corrections officers prior to the admission process. The officer performing the search will ensure that:

a. Pat search all detainees brought into the jail between the 105E and 110E doors before the 110E door is opened and they are brought in to Booking.

b. Strip searches will be conducted only on inmates brought in on felony charge (A, B, or C crime) or if the officer(s) have reasonable suspicion that contraband, i.e., a weapon, drugs, or evidence of a crime may be concealed under their clothing.

c. All inmates being transported will be pat searched; they may be strip searched if probable cause exists to believe that the safety of the officers, the inmates and/or the public could be in jeopardy.

d. The following information is recorded in the Daily Log (Shift Activity Log).

(1) Date, time and location of search. (2) Name of the inmate(s). (3) Any items seized. (4) Name(s) of Officer(s) performing the search.

e. Incident reports are prepared and submitted if any contraband is found.

f. Searches are performed by persons of the same gender as the person(s) being searched.

….

PROCEDURE C Inmate Strip Search

DEFINITION:

A strip search is any unclothed search during which the inmate’s body surfaces and cavities are visually inspected, with the lifting or moving of body parts done by the individual being searched; all clothing items of said individual will also be searched thoroughly in the process. Strip searches will be performed inside the Booking area in the shower stall after a pat search has first been done before admitting the detainee beyond the 110E door.

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1. The Intake (Booking) Officer will conduct a strip search of any inmate admitted to the facility who is:
a. Charged with murder, or a Class A, B, or C crime and,
b. Unable to bail on charges, and,
c. Before coming in contact with any other inmate.
d. A strip search may also be performed for the safety of the staff and inmate population and security of the facility when probable cause exists to believe that the Inmate in question may be concealing contraband and/or weapons on his/her person and a pat search has not turned up anything.
2. The strip search must be conducted by an officer of the same sex as the inmate, with the following rules observed:
a. Allowing only those officer personnel of the same gender who are necessary to be present during the search for the following reasons:
(1) Protection. (2) Witnessing removal of contraband or evidence of a crime. (3) Other legitimate law enforcement purpose.
Defendants’ Ex. 54. When Policy C-120 and D-220 were made effective in January of 1995 they were placed in the Policy and Procedure Manual.5 Davey Aff. ¶ 16. These
policies clearly prohibit strip searches of misdemeanor detainees without reasonable
suspicion. Jail Administrator Voyer was instructed to ensure that correctional officers
were provided with the revised policy and were given training in the implementation of
the policies. Id. In describing the corrective action planned or taken, Sheriff Davey,
together with Mr. Voyer, responded to the Department of Corrections Statement of
Deficiencies for Standard D-22 stating: “The search policy has been clarified for all
5 Both the January 1995 revisions of Policy C-120 and Policy D-220 were again reviewed in January of 1996. Davey Aff. ¶ 16. It does not appear that any further changes were made to the policies in 1996.
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correctional staffers: strip searches are no longer conducted except as specified in the standards.” Defendants’ Ex. 60; Hinckley Depo. at 94; Davey Aff. ¶12; Voyer Aff. ¶ 7.
2. 2000 Department of Corrections Jail Inspection In August and September of 2000, the Department of Corrections conducted another inspection of the Knox County Jail. Davey Aff. ¶ 17. When he inspected the Knox County Jail again in 2000, Mr. Hinckley found that the jail was not in compliance with Department of Correction Standard on strip searches. Plaintiffs’ Ex. 14, 2000 Biennial Inspection Report of Knox County Jail; Hinckley Depo. at 95, 119-120. During the 2000 Jail Inspection, two different Knox County Jail employees interviewed by Mr. Hinckley verified that Knox County was strip searching every detainee.6 Hinckley Depo. at 97. Moreover, although in some instances Knox County may have relied on the charge itself as the basis for the strip search, the report finds that the specific justification for strip searches required by the Attorney General's Rules, was not being documented by Knox County. Plaintiffs’ Ex. 14, 2000, Biennial Inspection Report of Knox County Jail; Hinckley Depo. at 99, 100. In October of 2000, the Department of Corrections issued a report identifying areas of non-compliance regarding its inspection of the Knox County Jail. Defendants’ Ex. 61; Davey Aff. ¶ 17. According to the report and relevant to this case, the jail was not in compliance with the Department of Corrections Standard on strip searches
6 In argument, and without any evidentiary support, Defendants suggest that when interviewed by Inspector Hinckley, the corrections officers may have understood the term “strip search” to be a detainee disrobing but not viewed by the corrections officer. Under Maine law, the Attorney General’s Rules, and Knox County policies and procedures, the definition of the term “strip search” is clear and includes viewing the detainee’s unclothed body and inspecting body cavities. The record indicates that corrections officers at the Knox County Jail are trained in the definition as well as the procedure for conducting a strip search when initially hired. Defendants’ Ex. 47. In the absence of any evidentiary indication by a corrections officer that they understood the term “strip search” to be other than as it is defined in Maine law, the Court will disregard this suggestion.
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because, “based on statements from staff, all inmates were being strip searched regardless of the crime if they are to be housed.” Defendants’ Ex. 61; Davey Aff. ¶ 17. In February 2001, Sheriff Davey prepared a response to the finding of non-compliance with Standard D.22.d and stated that “strip searches of Class D and E will NOT take place except in those instances described in the standard.” Defendants’ Ex. 62 (emphasis in original); Davey Aff. ¶ 18.
After the 2000 Jail inspection, Jail Administrator Richard Robbins7 developed a procedure for implementing Policy C-120 with respect to detainees charged with Class D and E crimes. The procedure for implementing Policy C-120 was approved by Sheriff Davey and became effective in May 2001, providing that detainees charged with misdemeanors “will be pat searched.” Defendants’ Ex. 49 (emphasis in original); Davey Aff. ¶ 20. The only mention of strip search is in a section dealing with metal detector alerts where the procedure states “[a]rticulable suspicion is justification for strip search.” Defendants’ Ex. 49. At the same time, Jail Administrator Robbins also developed a specific and detailed “Daily Activity Schedule for Designated Housing for PreArraignment Detainees Class D and E Section 128/cells 130, 131, and 132.” Defendants’ Ex. 50. This procedural memorandum indicated that “[a]ll detainees held in this section HAVE NOT been strip searched; they will not have contact with each other for security reasons.” Defendants’ Ex. 50 (emphasis in original); Davey Aff. ¶ 22.
7 Mr. Robbins’ affidavit states that he began his tenure as Jail Administrator on December 11, 2001, and was the Jail Administrator of the Knox County Jail until at least March 2003. Affidavit of Richard Robbins (March 28, 2003) ¶ 1. However, it appears that Mr. Robbins was serving as Jail Administrator when he approved the memorandum entitled “Procedure for Policy D-120 Pre-Arraingment D & E Detainees” in May 2001.
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In May 2001, after Knox County settled a law suit alleging unconstitutional strip
searches, Mr. Robbins wrote a memorandum to the chiefs of the local police departments
stating:
1. As you, no doubt, know, the County recently settled a law suit, which charged that Jail staff conducting [sic] an inappropriate strip search in 1994.
2. As a consequence of the suit, an extensive and in-depth review of policy and procedure regarding strip searches was conducted by the administration of the Knox County Jail. You may, also, recall that in the past staff at the Jail were occasionally requested to conduct a strip search of an arrestee at the request of the arresting agency. On such occasions a written authorization/request was executed by the arresting officer.
3. Please be advised that given the resolution of the law suit (Miller v. Knox County et al), the Jail will no longer conduct a strip search of those arrested and charged with Class D and/or Class E offenses at the request of the arresting officers (for the purpose of discovering evidence). If an arresting officer desires to have an arrestee strip searched for the purpose of discovering evidence, the search must take place prior to admission to the Jail.
Plaintiffs’ Ex. 23 (emphasis added). In March of 2002, Jail Administrator Robbins issued
a memorandum to all staff entitled “Management of Non-Searched Inmates,” which
states:
[t]he purpose of the P&P re: non-search inmates is to minimize, as much as possible, the opportunities for such inmates to mix among themselves or the general population. The goal is intended to reduce liability for the County since we cannot be assured that contraband is not in possession of such inmates absent a strip search, which the First Circuit Court has prohibited without articulable suspicion.
Defendants’ Ex. 51; Davey Aff. ¶ 23.
Later, in connection with the investigation of this law suit, Mr. Robbins wrote an
intradepartmental memorandum which provides:
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1. Based on the notation in the Lynette ROBINSON inmate file [12/22/00 @ 0702] that C/O M. Kenney had strip searched inmate ROBINSON, I interviewed C/O Kenney this date.
2. In response to my inquiry C/O Kenney explained her understanding of the current strip search policy, identifying felony PT inmates, sentenced inmates (regardless of class) and misdemeanor PT inmates based upon articulable suspicion were subject to strip search.
3. C/O Kenney advised that she had been employed at the facility for approximately 5 years and that prior to the procedural changes adopted in February 2001, it was her understanding that anyone, regardless of crime class was to be stripped searched if they were admitted to the general population. She further advised that it was her recollection that she was trained to conduct strip searches of any inmate admitted to general population during her classroom training and job shadowing, albeit she did not recall who presented that segment of her training. She stated that she had no recollection of the strip search policy developed and written by (then) jail administrator Raymond Voyer.
4. I spoke with Sgt. Jay Costigan and R/O Cheryl Daniello this date regarding the strip search policy and practice. Both indicated that they recalled a discussion several years ago in which the Voyer and D.O.C. policies were mentioned and that the decision was made by someone (unidentified) to disregard the applicable policy and standard and continue to search all inmates, regardless of crime class, if they were to be admitted to the general population. The justification, as they recalled, was safety and security of the facility. Sgt. Costigan stated that he doesn’t recall ever seeing or receiving a copy of the Voyer strip search policy.
5. Since the policy was written by Mr. Voyer in his capacity as jail administrator, and both Sgt. Costigan and R/O Daniello suggested that a conscious decision was made to disregard the policy, it is reasonable to believe that the ONLY person that could have issued such an advisory to disregard the policy that would have had a compulsory effect on staff would have been Lt. Wyman. As program officer, Lt. Gardner would have lacked such authority.
Plaintiffs’ Ex. 20 (emphasis added). A few days later, Mr. Robbins penned another memorandum stating:
1. Based on the notation in the Lynette ROBINSON inmate file [12/22/00 @0702] that C/O M. Kenney had strip searched Inmate ROBINSON, I interviewed C/O Kenney on 2/14/03.
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2. During the course of the interview C/O Kenney mentioned that she was trained to strip search everyone that was not going to be admitted to bail. She mentioned that C/O Dane Winslow was in her training class and would, therefore, advise that he was trained in the same way.
3. I interviewed C/O Winslow in my office on 2/14/03 at approximately 1615 hours. I asked C/O Winslow what his understanding of the current strip search policy was. He explained his understanding, which appeared to be correct except that he did not believe that any misdemeanor PT inmate could be strip searched.
4. I asked C/O Winslow what his training had been when he first joined the agency. He confirmed the representation of C/O Kenney, viz., that he had been trained to strip search any inmate that was not admitted to bail regardless of crime class. He could not recall who taught the unit, nor was he aware that Maj. Raymond Voyer, former jail administrator, had written an agency policy that prohibited strip searches of misdemeanor PT arrestees. In response to my request C/O Winslow indicated that he would attempt to locate his training materials in order to identify who taught the strip search unit.
Plaintiffs’ Ex. 20 (emphasis added).
C. Evidence of Strip Searches Conducted at the Knox County Jail
On February 7, 2001, at approximately 5:05 p.m., Plaintiff Laurie Tardiff was
arrested at her residence in Rockland, Maine, by a Rockland Police Officer. Ms. Tardiff
was arrested pursuant to a warrant for tampering with a witness – a Class C felony
charge. See 17-A § 454(1)(A)(2); Simmons Aff. ¶ 6; Middaugh Aff. ¶¶ 2, 3; Defendants’
Exs. 63-65; Affidavit of Laurie Tardiff at ¶ 3. Prior to leaving home, she was required to
empty her pockets in front of the arresting officer. Tardiff Aff. ¶ 5. Ms. Tardiff was
taken to the Knox County Jail, and on her arrival, was booked in the intake area. Tardiff
Aff. ¶ 6. After being booked, Ms. Tardiff was taken to a shower area and Correction
Officer Linda Simmons ordered her to remove her clothing for inspection.8 Tardiff Aff. ¶
8 The shower room in the booking area of the Knox County jail is used exclusively for conducting strip searches. Robbins Depo. at 57. The shower room where the strip searches take place is L-shaped and
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15. After her clothing was removed, Ms. Tardiff was strip searched.9 Tardiff Aff. ¶ 22-
23. Once this process was completed, Ms. Tardiff was given jail clothing and allowed to
dress. Simmons Aff. ¶¶ 6-12; Defendants’ Ex. 28. Ms. Tardiff was then placed in a cell.
The Intake/Release Log for February 7, 2001, omits reference to Ms. Tardiff's strip
search. Plaintiff’s Exhibit 2.
Over the relevant class period, six separate months of the Knox County Jail’s Intake/Release Logs and Inmate Daily Logs,10 were randomly selected to create a sample
of potential class members: January 1997, February 1998, November 1999, October
2000, July 2001, and August 2002. Ward Aff. ¶¶ 1-8. During these six sample months at
least seventeen persons charged with various Class E crimes were strip searched without reasonable suspicion.11 Ex. A of Ward Aff.; Defendants’ Ex. 67. During these six
sample months at least nine persons charged with Class D OUI were strip searched without reasonable suspicion.12 Ward Aff. ¶¶ 21, 22; Ex. B of Ward Aff.; Defendants’
adjacent to the small property room in the booking area. Robbins Depo. at 57. It is not clear from the record whether there is a curtain over the shower stall or over the entry into the shower room or both. In any case, the record presents an issue of fact as to whether other persons passing the shower room can view the individual being strip searched. Colson Affidavit ¶ 12; Tardiff Aff. ¶¶ 19-20; Pratt Aff. ¶ 13. 9 Although Officer Simmons states that she performed the strip search of Ms. Tardiff as she had been trained, Simmons Aff. ¶ 7, and the Knox County Jail standard procedures require a visual body cavity inspection be performed by the corrections officer when conducting a strip search, Defendants’ Ex. 54, Officer Simmons disputes Ms. Tardiff’s claim that she completed a visual body cavity inspection of Ms. Tardiff, Simmons Aff. ¶ 11; Tardiff Aff. ¶ 22. Officer Simmons does admit that she had Ms. Tardiff squat and cough. Simmons Aff. ¶ 11; Robbins Depo. at 150; 10 If a notation that a detainee was strip searched was made, it was made in the Intake/Release Log or the Daily Log. 11 During these six sample months Plaintiffs contend that thirty-four persons charged with various Class E crimes were strip searched without reasonable suspicion. Exhibit A of Ward Aff. Defendants respond that thirteen of the Class E misdemeanants were “searched” but not “strip searched” and four were sentenced inmates not part of the class. Affidavit of Donna Campbell ¶¶ 7-9. For purposes of summary judgment, the Court will consider only the seventeen arrestees that the parties agree upon as having been strip searched.
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Ex. 68. In addition, during these six sample months at least six persons charged with miscellaneous Class D misdemeanors were strip searched without reasonable suspicion.13
Ward Aff. ¶ 16; Ex. C of Ward Aff.; Defendants’ Ex. 69.
II. DISCUSSION
Summary judgment is appropriate only if the record shows “that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(c); United States Steel v. M. DeMatteo Constr. Co.,
315 F.3d 43, 48 (1st Cir.2002). “In this regard, ‘material’ means that a contested fact has
the potential to change the outcome of the suit under the governing law if the dispute over
it is resolved favorably to the nonmovant. By like token, ‘genuine’ means that ‘the
evidence about the fact is such that a reasonable jury could resolve the point in favor of
the nonmoving party.’” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001)
(quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). The
party moving for summary judgment must demonstrate an absence of evidence to support
the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view
the record in the light most favorable to the nonmoving party and give that party the
benefit of all reasonable inferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d
12 During the six sample months Plaintiffs contend that twenty-four Class "D" OUI's were strip searched without articulable suspicion. Ward Aff. ¶¶ 21, 22 and Exhibit B of Ward Aff. Defendants respond that six of the Class D OUI misdemeanants were “searched” but not “strip searched” and ten were sentenced inmates not part of the class. Campbell Aff. ¶¶ 3-6. For purposes of summary judgment, the Court will consider only the nine arrestees that the parties agree upon as having been strip searched. 13 During the six sample months Plaintiffs contend that twenty-one Class "D" misdemeanants were strip searched without reasonable suspicion. Ward Aff. ¶ 16 and Exhibit C of Ward Aff. Defendants respond that six of the Class D misdemeanants from this list were “searched” but not “strip searched,” seven were sentenced inmates not part of the class, and two were not searched. Campbell Aff. ¶¶ 10-13. For purposes of summary judgment, the Court will consider only the six arrestees that the parties agree upon as having been strip searched.
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29, 33 (1st Cir. 2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
A. MUNICIPAL LIABILITY A claim under section 1983 requires the plaintiff to show the deprivation of a federally secured right by a person acting under color of state law. See 42 U.S.C. § 1983; see also Camilo-Robles v. Hoyos, 151 F.3d 1, 5 (1st Cir.1998). A municipality cannot be held liable under 42 U.S.C. § 1983 for constitutional deprivations unless the unconstitutional conduct occurred as a result of the implementation or execution of a municipal policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As with any other tort claim, there must be a showing in a section 1983 action of “a direct causal link” between the municipal policy or custom and the alleged constitutional deprivation. Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). In applying Monell, courts have struggled to determine just which sorts of municipal wrongdoing may properly be said to have caused constitutional violations. See id. (noting that this inquiry has left the Supreme Court "deeply divided"). A clear basis
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for municipal liability is, however, the municipality’s enforcement of an unconstitutional regulation, ordinance, or written policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). A “policy” may be established by either a policy or decision adopted by the municipality or a single act of a municipal official with final policymaking authority. See St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). Another basis for municipal liability arises out of an unconstitutional “custom or practice” if it is “so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice.” Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). Unlike a “policy,” which comes into existence because of the top down affirmative decision of a policymaker, a “custom or practice” develops from the bottom up. Thus, the liability of the municipality for custom-based constitutional violations derives not from its creation of the custom, but from its tolerance of or acquiescence in it. Id.
1. The Constitutionality of the Policy of Strip Searching All Detainees Charged with a Non-Violent, Non-Weapon, or Non-Drug Felony
Plaintiffs contend that Knox County’s written policy of strip searching all felony detainees without reasonable suspicion is unconstitutional. Defendants respond that the felony charge itself provides the justification to perform a strip search. Because the class of Plaintiffs certified in this case include only those detainees charged with a non-violent, non-weapon, non-drug felony, it is not necessary for the Court to decide the issue of whether any felony charge alone provides a constitutional basis upon which to strip search a detainee. Rather the Court will consider the narrower question of whether a
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detainee charged with a non-violent, non-weapon, non-drug felony can be constitutionally strip searched based on the charge alone.
Almost twenty-five years ago the Supreme Court laid out a balancing test under the Fourth Amendment to determine the reasonableness of a search which requires the weighing of the “need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Specifically, this balancing test requires courts to “consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. In applying the Bell test in the context of misdemeanor detainees, the First Circuit concluded that strip and visual body cavity searches “must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons.” Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). See also Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996)(reasonable suspicion standard is the appropriate one for justifying strip searches of prison visitors); United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)(reasonable suspicion standard is the appropriate one for justifying strip searches non-routine border searches). In the years following Swain, the First Circuit has reaffirmed that strip searches of persons arrested on a misdemeanor charge and brought to a local jail for booking must be justified by individualized reasonable suspicion of concealed weapons or contraband. See Wood v. Hancock County, 354 F.3d 57, 62 (1st Cir. 2003); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001); Miller v. Kennebec County, 219 F.3d 8, 12-13 (1st Cir. 2000); see also Savard v. Rhode Island, 338 F.3d 23, 37 (1st Cir. 2003)(en banc)(equally divided court affirmed district court’s grant of qualified immunity to defendants based on
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conclusion that unlawfulness of strip search of misdemeanants housed at a state’s maximum security prison without particularized suspicion was not clearly established).
The record in this case establishes that pursuant to Knox County’s written policy corrections officers at the Knox County Jail routinely strip search newly-arrived felony arrestees regardless of the charge. The jail policies do not differentiate between violent felonies and other non-violent, non-weapon, or non-drug Class “C” crimes. Robbins Depo. at 12. Under Maine law, there are some felony crimes that do not involve violence, weapons, or drugs. For example, Maine’s “Operating Under the Influence” statute provides a Class C felony. See 29-A M.R.S.A. § 2411. It cannot be understood that being accused of operating under the influence would automatically provide reasonable suspicion to believe that the detainee was concealing contraband on or in their body.
While the goal of preventing the entry of contraband into a local jail is justifiable from the standpoint of safety and security, such justification alone can not sustain a policy or practice of strip searching individuals without reasonable suspicion. See Wood, 89 F.3d at 928 (“[A] strip search can hardly be characterized as a routine procedure or as a minimally intrusive means of maintaining prison security. Indeed, ‘a strip search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.’”)(internal quotations omitted). Defendants offer no evidence or precedent that would justify a policy for searching all detainees charged with non-violent, non-weapon, or non-drug felonies. Although Defendants assert that the reason for the policy is to prevent the entry of contraband into the facility, they do not argue that the Knox County Jail is frequently confronted with contraband smuggled into
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the Knox County Jail. There is no evidence that detainees have typically concealed contraband or weapons in their bodies in the past, let alone that the felony detainees are responsible for a greater amount of contraband than misdemeanor detainees. Defendants’ rely on three incident reports from the Knox County Jail all arising out of the August 2002 two-day detainment of a single felony arrestee named Jodi Young. Defendants’ Exs. 71, 72, 73. Each report indicates that contraband was discovered either in her cell or on her person. Id. However, it is not determinable from the record whether she was charged with a felony involving violence, a weapon or drugs. Since it is not known on what type of felony charge she was detained, evidence of her possession of contraband while at the Knox County Jail is not necessarily probative of the justification for strip searching all felony detainees. The evidentiary record, contrary to Defendants’ assertion, does not support a conclusion that a non-violent, non-weapon, non-drug felony charge automatically provides reasonable suspicion to conduct a strip search.
Defendants assert that in developing their policy they relied on the Attorney General’s Rules and Department of Corrections Standards, which permit the strip search of all felony arrestees without reasonable suspicion. This argument, however, goes only to the question of Knox County’s good faith in adopting those non-mandatory rules and standards.14 Since the County is not entitled to the benefit of a qualified immunity defense, Knox County’s reliance on them does not excuse the application of an otherwise unlawful policy. See Owen v. City of Independence, 445 U.S. 622, 639, 100 S. Ct. 1398,
14 Defendants assert that the Department of Corrections Standards are mandatory for all county jails. While Department of Corrections Standards may be mandatory, the relevant provisions governing strip search policy and procedure in those standards, like the Attorney General’s Regulations, merely authorize, but do not require, felony detainees to be strip searched. Defendants’ Exs. 57 and 58.
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63 L. Ed. 2d 673 (1980) (municipality may not assert the good faith of its officers as a defense to section 1983 liability).
While the First Circuit has not directly addressed the appropriate test for the validity of a strip search during the booking process at a local jail and incident to a felony arrest, this Court concludes that, with respect to detainees charged with a non-violent, non-weapon, non-drug felony, the particularized reasonable suspicion test is applicable, rather than strip searches of all felony arrestees being authorized based solely on the fact that they had been arrested on a charge categorized under state law as a felony. Swain, 117 F.3d at 7 (“[I]t is clear that at least the reasonable suspicion standard governs strip and visual body cavity searches in the arrestee context….”). This conclusion is based in part on the First Circuit's clear statements about constitutional protections applicable to individuals who are the subject of a governmentally initiated strip search. The law in this Circuit does not countenance a policy permitting strip searches of all non-violent, nonweapon, non-drug felony detainees upon arrival at a local correctional facility simply because they stand accused of a felony. The distinction between felony and misdemeanor detainees alone fails to address the likelihood that a detainee would be concealing drugs, weapons, or other contraband. See Tennessee v. Garner, 471 U.S. 1, 14, 105 S. Ct. 1694, 85 L. Ed. 2d 1, (1985) (“[T]he assumption that a ‘felon’ is more dangerous than a misdemeanant [is] untenable.”). Moreover, a non-violent, non-weapon, non-drug felony charge fails to create a presumption of reasonable suspicion required to perform a strip search.
Though the crime for which a detainee is charged is an important factor for consideration, it does not independently establish reasonable suspicion necessary under
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the Fourth Amendment. Officers should evaluate whether the crime charged involves violence, drugs, or some other feature from which an officer could reasonably suspect that an arrestee was hiding weapons or contraband as well as other factors like the circumstances of the arrest and the particular characteristics of the arrestee. When these factors are considered, it is possible that the strip search of many accused felons may be legitimate. Nevertheless, strip searching all individuals charged with felony crimes that do not involve violence, weapons, or drugs as part of the booking process at a local jail is unconstitutional. Plaintiffs have established that corrections officers were following the unconstitutional policy of strip searching all felony detainees when their rights were violated. Because Knox County’s written policy of strip searching all felony detainees charged with non-violent, non-weapon, or non-drug offenses is unconstitutional and that policy caused the violation of the constitutional rights of Plaintiffs arrested on felony charges, the Court will grant Plaintiffs’ Motion for Partial Summary Judgment against Knox County on that part of Count I as to the existence of liability.
2. The Constitutionality of Knox County’s Alleged Custom and Practice of Strip Searching Detainees Charged with Misdemeanors Plaintiff must meet two requirements to maintain this type of section 1983 claim. First, the custom or practice must be attributable to the municipality; i.e., it must be “so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice.” Bordanaro, 871 F.2d at 1156. Second, the custom must have been the cause of and “the moving force” behind the deprivation of constitutional rights. Id. at 1157. Under the law regarding strip searches of persons arrested on a misdemeanor charge it is well established that the Fourth Amendment requires that strip and visual body cavity
25

searches “must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons.” Swain, 117 F.3d at 7. Plaintiffs contend that Knox County has a custom and practice of routinely strip searching persons charged with minor offenses without articulable suspicion that they harbor contraband or weapons. While Defendants deny unlawfully strip searching four proposed Plaintiffs charged with misdemeanors,15 Defendants admit to strip searching a significant number of misdemeanor detainees without reasonable suspicion during the relevant class period.
a. Existence of Widespread Practice Prior to October 1994, Knox County Jail policy required corrections officers to strip search all detainees brought to the facility. Defendants’ Ex. 52. With respect to misdemeanor detainees, the revisions made to Policy D-220 in October 1994 and Policy C-120 in January 1995 brought those written policies in line with constitutional standards. Defendants’ Exs. 53, 48. While Knox County Policies C-120 and D-220 have clearly stated, since October 1994, that misdemeanor detainees are not to be strip searched without reasonable suspicion, the record presents undisputed evidence that substantial numbers of persons arrested for misdemeanor offenses were routinely strip searched without reasonable suspicion at the Knox County Jail. The reports generated by the Department of Corrections following the 1994 Jail Inspection and the 2000 Jail Inspection find, based on staff statements made at those times, that corrections officers at the jail were strip searching all detainees charged with misdemeanors. Defendants’ Exs. 59, 61. Even before the 2000 Jail Inspection was conducted, Jail Administrator Robbins admits that as a result of the lawsuit Miller v.
15 The four proposed Plaintiffs – Susan Winchenbach, Andrew Pratt, Lynette Dean, and Judy Carter – are discussed in section B(1)(b) of this opinion.
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Kennebec County, 219 F.3d 8 (1st Cir. 2000), which was filed in this Court in April 1998, he “became aware that the jail staff were not always following the policy and were, at least on some occasions, conducting strip searches in violation of policy [C-120].”16 Robbins Aff. ¶ 6. In 2001, Jail Administrator Robbins wrote to local police chiefs notifying them that the Knox County Jail would no longer provide the service of strip searching misdemeanor arrestees on “the request of arresting officers (for the purpose of discovering evidence).” Plaintiffs’ Ex. 23.
Further confirmation of the existence of a widespread practice is gleaned from Knox County Jail’s own intradepartmental memoranda. Two intradepartmental memoranda, the subjects of each described as “Strip Search Practice Interview” written after this case was filed in 2003, indicate that at least some corrections officers at the Knox County Jail believed that strip searching all detainees was the jail’s practice. Plaintiffs’ Ex. 20. Perhaps the most strongly corroborative evidence of the existence of this practice are the statements contained in the memoranda that were made by two corrections officers that they were told that, for security reasons, the policy that there must be reasonable suspicion to search misdemeanor detainees should be ignored. Plaintiffs’ Ex. 20. Those intradepartmental memoranda establish that in 2003 Corrections Officers Costigan and Daniello believed that they were to search all misdemeanor detainees. Plaintiffs’ Ex. 20. The record shows that from sometime in 1998 when she was hired, until the procedural changes adopted in February 2001, Corrections Officer Kenney understood that anyone, regardless of crime class was to be stripped searched if they were admitted to the general population. Plaintiffs’ Ex. 20.
16 The Court notes that Knox County was one of the named defendants in the Miller lawsuit.
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Finally, evidence of this unconstitutional practice can be easily verified from a review of the daily Intake/Release Log entries. That log establishes that based on a sixmonth sample during the relevant class period, Defendants strip searched at least seventeen persons charged with various Class E crimes without reasonable suspicion. Exhibit A of Ward Affidavit; Defendants’ Ex. 67. With respect to detainees charged with Class D OUI, Defendants admit that during these six sample months at least nine persons were strip searched without reasonable suspicion. Affidavit of Michelle Ward ¶¶ 21, 22; Exhibit B of Ward Affidavit; Defendants’ Ex. 68. With respect to miscellaneous Class D misdemeanor detainees, Defendants admit that during these six sample months at least six persons were strip searched without reasonable suspicion.17 Ward Aff. ¶ 16; Ex. C of Ward Aff.; Defendants’ Ex. 69. Based on the undisputed evidence presented in the summary judgment record, the record shows, without cavil, that the practice by corrections officers of strip searching misdemeanor detainees was so widespread that the policymaking officials of the municipality had constructive knowledge of it. Moreover, the Court concludes that Knox County personnel with policy-making authority had actual notice that the corrections officers were unlawfully strip searching misdemeanor detainees without reasonable suspicion.
b. Defendants’ Failure to Take Corrective Action The Court is struck by the fact that even after the 2000 Jail Inspection Report clearly found that misdemeanor detainees were being routinely strip searched, there is no
17 Although it is not known from the record exactly how many individuals charged with misdemeanors were brought into the Knox County Jail over the six month sample in order to determine the percent of misdemeanor detainees Defendants admit were strip searched, the record is convincing that, based on the sample, that misdemeanants were routinely strip searched without reasonable suspicion. Ward Aff. ¶¶ 18,19 and Exhibit A of Ward Affidavit.
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evidence that any official at Knox County made a clear or plain statement that this
practice was to stop. Defendants assert that new procedures, created after the 2000 Jail
Inspection Report was released, were intended to address the noted area of noncompliance regarding misdemeanor detainees.18 Those new procedures, however, are
directed at misdemeanor detainees who had not been strip searched. The foundational
information that apparently spawned the new procedures – no misdemeanor detainees
shall be strip searched without reasonable suspicion – was omitted from the procedures.
For example, the procedure for implementing Policy C-120 that became effective in May
2001, provided that detainees charged with misdemeanors “will be pat searched.” Defendants’ Ex. 49 (emphasis in original).19 The only mention of strip search is in a
section dealing with metal detector alerts where the procedure states “[a]rticulable
suspicion is justification for strip search.” Defendants’ Ex. 49. That overall procedure,
however, does not make it clear to the corrections officers who had been strip searching
all detainees, that the prior practice of strip searching misdemeanor detainees without reasonable suspicion must be stopped.20
18 Sheriff Davey’s February 2001 response to the Department of Corrections with respect to the finding of non-compliance with Standard D.22.d on strip searches states that “strip searches of Class D and E will NOT take place except in those instances described in the standard.” Defendants’ Ex. 62. Defendants make the point that they have never admitted or denied the findings in the Jail Inspection Reports that all misdemeanor detainees were being strip searched. 19 The 2000 Jail Inspection Report finding that all detainees were still being strip searched was issued in October of 2000. The Court notes that the new procedure apparently aimed at addressing this issue did not become effective until six months after issuance of the Jail Inspection Report finding non-compliance with Department of Corrections Standards. 20 While that is the most significant information missing, it is not the only information that was omitted in the new procedure for implementing Policy C-120. Sheriff Davey states that “although not specifically stated in the procedure for implementing Policy C-120, misdemeanor detainees who were not strip searched were given yellow-colored jail uniforms to specifically distinguish them as non-searched inmates.” Davey Aff. ¶ 21A.
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Likewise, the Court finds that the “Daily Activity Schedule for Designated Housing for Pre-Arraignment Detainees Class D and E Section 128/cells 130, 131, and 132” and the “Management of Non-Search Inmates” provided direction to corrections officers regarding the treatment of detainees who had not been strip searched. The “Daily Activity Schedule for Designated Housing for Pre-Arraignment Detainees Class D and E Section 128/cells 130, 131, and 132,” like the procedure for implementing Policy C-120, specifically identifies cell assignments to be used for unsearched misdemeanor detainees. It states “Procedure for daily activities for all pre-arraignment detainees held in section 128, cells 130, 131 an 132. All detainees held in this section HAVE NOT been strip-searched; they will NOT have contact with each other for security reasons.” Defendants’ Ex. 50. From this statement it can be understood that if a detainee is housed in section 128 the detainee has not been searched. But it does not provide that, except if an officer has reasonable suspicion that the detainee is in possession of contraband and conducts a strip search of that detainee, all misdemeanor detainees shall be housed in section 128. The memorandum on “Management of Non-Search Inmates,” issued one year later, bears the same defect. Defendants’ Ex. 51. Neither memorandum provides a clear statement directing corrections officers not to strip search misdemeanor detainees without reasonable suspicion. Defendants’ Exs. 50, 51.
While Defendants provided corrections officers copies of revisions to policies and all newly promulgated procedures, the most basic statement, which Defendants assert motivated the creation of the new procedures for misdemeanor detainees, is curiously absent from all the documents establishing new procedures. As previously discussed, those procedures are directed at misdemeanor detainees who have not been searched and
30

never clarify that, except if an officer has reasonable suspicion, no misdemeanor detainees shall be strip searched. Although there is evidence that after the new procedural changes regarding misdemeanor detainees were implemented one corrections officer may then have understood that they were not to strip search all misdemeanor detainees, Plaintiffs’ Ex. 20 (statement by Corrections Officer Kenney), this evidence alone is insufficient to refute the overwhelming evidence that the procedural changes were not effectively tailored and that the practice continued on a widespread basis. Plaintiffs’ Ex. 20 (Corrections Officers Costigan and Daniello “both indicated that they recalled a discussion several years ago in which the Voyer and D.O.C. policies were mentioned and that the decision was made by someone (unidentified) to disregard the applicable policy and standard and continue to search all inmates, regardless of crime class, if they were to be admitted to the general population.”).21 The record is not persuasive that the procedural memoranda, issued after the 2000 Jail Inspection and settlement of the Miller lawsuit, were directed at stopping the unconstitutional practice.
Even though it failed to promulgate new written procedures to eliminate the unconstitutional practice, Knox County could have employed a training regime directed at correcting the unconstitutional practice. The record indicates that a “Entry Level Training” procedure, which was in place since 1995, requires that all new full-time corrections officers receive a copy of the Knox County Jail Policy and Procedure Manual and that a reference copy of the same be maintained in the booking area for all part-time employees. Defendants’ Ex. 47 (Policy A-131). Pursuant to that policy pre-assignment
21 Although in 2003, Corrections Officers Costigan and Daniello had been employed for a few years, the evidence in the record does not show when their employment with the Knox County Jail began.
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training shall be conducted for all new corrections officers.22 There is no separate category of training in Policy A-131 that specifically addresses strip searches. Sheriff Davey asserts, however, that the training conducted in the areas of “Knox County Jail Policies and Procedures, control of contraband, principles of body searches, and constitutional law” all “deal with, and provide training in, the area of strip searches.” Davey Aff. ¶ 6. There is evidence that around 1998 at least two corrections officers’ entry level training included, contrary to Knox County written policy, the direction to strip search all misdemeanor detainees admitted to the jail. Plaintiffs’ Ex. 20 (Corrections Officer Kenney and Corrections Officer Winslow). However, even if new officers’ initial training on strip searches was conducted in accord with the written policy, such training was not aimed at stopping the corrections officers who were engaged in institutionally entrenched unconstitutional practice of strip searching all misdemeanor detainees brought to the Knox County Jail. The result was an ongoing practice that was far removed from the written policy.
Other than the entry level training, there is meager evidence in the record that Knox County employed training to bring an end to this practice. A training session was conducted on May 1, 2, and 3, 2001, by Lieutenant Cathy Wyman the subject of which was “Procedures for Pre-Arraignment Class D and E Detainees.” Plaintiffs’ Ex. 22. The “Training Roster” provides the names of the corrections officers who attended the training sessions and their quiz scores, but does not indicate what subjects were covered or how long the training session lasted. The record also includes a memorandum from Lt. Wyman to the staff of the Knox County Jail dated the day after the final training
22 The entry level training policy also requires that the jail administrator schedule training for all new fulltime corrections officers at the Maine Criminal Justice Academy within the first year of the individual’s employment. Defendants’ Ex. 47.
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session was completed, the subject of which is “Helpful hints on D and E detainee procedures” and detailing “some of the issues that were brought forth during the training of the procedures.” Plaintiffs’ Ex. 22. Although the “hints” never explicitly state that misdemeanor detainees shall not be strip searched, the memorandum states that “[r]equest by other law enforcement agencies for us to do a strip search because they feel they have probable cause is a simple NO.” Plaintiffs’ Ex. 22. Lt. Wyman’s training sessions were conducted just days before Jail Administrator Robbins new “Procedure for Policy C-120 Pre-Arraignment D & E Detainees” became effective and there is no evidence to suggest that it included any more information than the new written procedure. Defendants’ Ex. 49 (effective May 4, 2001). The memorandum by Lt. Wyman, like the new procedure for Policy C-120 Pre-Arraignment D & E Detainees, fails to clarify for the corrections staff that no misdemeanor detainee shall be strip searched without reasonable suspicion.
There is also evidence in the record that a two-hour training session was conducted for corrections officers at the Knox County Jail in February and March of 2002 on “Liability Issues in Corrections.” Plaintiffs’ Ex. 21. In addition to the names of the corrections officers who attended the training, the record contains a document which appears to be authored by the attorney who conducted the training. Plaintiffs’ Ex. 21. It is not known whether all the topics addressed in the document were actually discussed at the training sessions or if the document was distributed to corrections officers during the training sessions. For purposes of Plaintiffs’ Motion for Partial Summary Judgment, however, the Court will assume all topics in the document were discussed. One of those topics is “strip searches” and, the strongest guidance the document provides is “[a]lthough the use of the balancing test creates some uncertainty as to defining what the
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law is, it does appear that the general trend is that courts are identifying that it is unreasonable to conduct a strip search of a person arrested for traffic offenses or other minor offenses unless authorities have a reasonable suspicion that the arrestee is concealing weapons or contraband on their person.” Plaintiffs’ Ex. 21. This qualified statement leaves room to conclude that the practice of strip searching misdemeanor detainees may be lawful. It cannot, therefore, be understood as guidance directed at putting an end to a long-standing unconstitutional practice by Knox County.
The record before the Court contains no evidence that any official from Knox County directed, by way of written policy or procedure, training, or other means, that the unconstitutional practice stop. It could be argued that the direction to stop strip searching all misdemeanor detainees was implicit in the new procedures and training. Given the strong evidence of the persistence of the unconstitutional practice even after the 2001 procedural changes, no reasonable person could conclude that the actions of Knox County were directed at stopping the practice. At some point, it must have been evident to Knox County officials that the corrections staff had not gotten the message. Yet, there is no evidence that, even after the 2000 Jail Inspection Report indicated that the practice of strip searching all misdemeanor detainees who were housed continued, Sheriff Davey or any other official from Knox County promulgated any procedures, conducted any training, or engaged in any closer oversight, directed at eliminating the unconstitutional misdemeanor search practices of the corrections officers at the Knox County Jail.
c. Cause of the Constitutional Deprivations Plaintiffs have established that the practice of strip searching misdemeanor detainees without reasonable suspicion that they were concealing contraband was the
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moving force behind constitutional deprivation of class members. This practice was widespread and not the result of the actions of a few uninformed corrections officers. Defendants have failed to put forth any evidence to the contrary that may have created a genuine issue of material fact. Plaintiffs’ have established that corrections officers were following the unconstitutional practice of strip searching misdemeanor detainees when their rights were violated. An affirmative link between Knox County’s failure to take action to stop the unconstitutional practice of its corrections officers’and the violation of the constitutional rights of Plaintiffs arrested on misdemeanor charges has been established. The Court will, therefore, grant Plaintiffs’ Motion for Partial Summary Judgment against Knox County on that part of Count I as to liability alleging that Plaintiffs’ constitutional rights were violated as a result of the custom and practice of strip searching all misdemeanor detainees without reasonable suspicion.
3. Failure to Train Corrections’ Officers Another category of section 1983 cases which results in municipal liability arises in the so-called “failure to train” context. Plaintiffs’ Amended Complaint alleges that Knox County is liable for its officers' unlawful actions because it had failed to properly train and supervise them. The indefinite nature of judgments about the proper level of training for municipal employees has led the Supreme Court to express concern that failure-to-train actions “would open municipalities to unprecedented liability under § 1983,” Harris, 489 U.S. at 391, and has limited failure-to-train liability to the most egregious cases. Accordingly, “inadequacy of [correction officer] training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at 388.
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Although some facts are presented in the summary judgment record regarding the training given to Knox County corrections officers, Plaintiffs present no specific argumentation on their failure to train claim. Accordingly, the Court will deny Plaintiffs’ Motion for Partial Summary Judgment against Knox County on that part of Count I alleging a failure to train corrections officers.
B. INDIVIDUAL LIABILITY The Court will start by determining whether Ms. Tardiff’s federal constitutional right to be free from unreasonable searches has been violated. The Court will next determine Sheriff Davey’s responsibility for the Knox County Jail policy of strip searching all non-violent, non-weapon, non-drug felony detainees without reasonable suspicion. Finally, the Court will address Sheriff Davey’s liability for the Knox County Jail’s custom and practice of strip searching all misdemeanor detainees without reasonable suspicion.
1. Liability of Corrections Officers a. Laurie Tardiff
It is undisputed in the record that on February 7, 2001, Ms. Tardiff was strip searched at the Knox County Jail after being arrested on a warrant. Defendants contend that Ms. Tardiff was arrested on a violent felony charge and, therefore, her strip search was reasonable. Plaintiffs respond that despite being charged with a Class C crime, the charge was of a non-violent nature. While the parties agree that she was charged with tampering with a witness – a Class C felony, the summary judgment record presents issues of material fact as to the specific fact-based nature of the charge under which Ms. Tardiff was arrested.
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Maine criminal code section 454 – tampering with a witness – has both a nonthreatening and a threatening provision. See 17-A § 454(1)(A) and 17-A § 454(1)(B). While Defendants suggest that the Court should consider statements in the affidavits from the victim that support the police officer’s affidavit to obtain an arrest warrant and conclude that the charge was of a threatening nature pursuant to 17-A § 454(1)(B)(1), Defendants’ Exs. 64, 65, Plaintiffs contend that the Court should simply rely on the affidavit submitted by the police officer in the application for the arrest warrant charging 17-A § 454(1)(A)(2) – non-threatening witness tampering. Defendants’ Exs. 63; Middaugh Aff. ¶¶ 2, 3. Although the police officer’s affidavit submitted to obtain the arrest warrant for Ms. Tardiff clearly charges the non-threatening type of the offense, the actual arrest warrant for Ms. Tardiff is not provided in the record. For that reason, the Court is unable to determine the exact nature of the charge for which Ms. Tardiff was arrested.
While the Court has already determined that it is unconstitutional to, as part of the booking process, strip search a felony detainee not charged with a crime involving violence, weapons or drugs without reasonable suspicion, there are issues of material fact regarding the charge upon which Ms. Tardiff was arrested that prevent the Court from determining if she qualifies as a member of the certified class. Therefore, the Court will deny Plaintiffs’ Motion for Partial Summary Judgment with respect to Ms. Tardiff on the claims against the individual corrections officers raised in Counts IV and VI of the Amended Complaint.23
23 The Court notes that Defendants do not raise the qualified immunity defense with respect to the claims brought against the individual corrections officers.
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b. Evidence of Other Individual Plaintiffs
The Court notes that Plaintiffs also present facts with respect to four individuals
who they allege were strip searched after being brought to the Knox County Jail on
misdemeanor charges. Relying on the absence of a log entry noting a strip search,
Defendants deny that those individuals were indeed strip searched. Although additional
support for the existence of an unconstitutional practice can certainly be inferred from
specific instances of such conduct, the summary judgment record with respect to three of
these individuals – Susan Winchenbach, Andrew Pratt, and Lynette Dean – presents
genuine issues of material fact that prevent the Court from considering whether their
constitutional rights were violated.24 Because the Intake/Release Log does not confirm
24 Susan Winchenbach was stopped by a Knox County Deputy on March 13, 2000, for having a light out on her car and taken to the Knox County Jail on the charge of Operating After Suspension at approximately 11:28 p.m. Plaintiffs’ Ex. 5, Affidavit of Susan Winchenbach ¶ 3. The parties dispute whether she was strip searched at this time. Winchenbach Aff. ¶ 4; Defendants’ Exs. 3-4. A short time later, she returned to her vehicle by way of taxi cab. Winchenbach Aff. ¶ 5. With apparently no other way to get home, she got in her car and began to drive. She was immediately pulled over, arrested, and returned to the jail. Winchenbach Aff. ¶ 5. The parties dispute whether she was strip searched at this time. Winchenbach Affidavit ¶ 6 and Defendants’ Exs. 5-11. During her sixty-hour stay at the Knox County Jail, she was seen by the jail physician in the company of a Correction Officer. Winchenbach Affidavit ¶ 6. After seeing the physician, she asserts that she was strip searched for a third time. Winchenbach Affidavit ¶ 6. The parties dispute whether she was strip searched at this time.
Ms. Winchenbach remained at the jail until she was taken to court at 2:05 p.m. on March 16, 2000, when she was brought before a judge and sentenced to time served. See Defendants’ Ex. 11. She was returned from court at 3:08 p.m. as a sentenced inmate and strip searched at 3:23 p.m. Defendants’ Ex. 11. After being placed in a holding cell, she was released from jail at 3:44 p.m. Defendants’ Ex. 11. Being a sentenced inmate, this search is outside the class definition. However, there are issues of fact as to whether Ms. Winchenbach was strip searched on any of the three other occasions as she alleges.
Andrew Pratt was arrested on December 12, 2002, on a violation of a protection from abuse order a Class D crime. The parties dispute whether he was strip searched. Plaintiffs’ Ex. 7, Affidavit of Andrew Pratt ¶ 6; Defendants’ Ex. 32.
With respect to Lynette Dean, there are issues of material fact regarding the justification for her strip search. Lynette Dean was arrested for operating under the influence on November 10, 2000. Plaintiffs’ Ex. 3, Affidavit of Lynette Dean ¶ 3. She was taken to the Knox County Jail, bailed, and released. Dean Aff. ¶ 3. Intake records indicate that at approximately 11:00 p.m. on December 21, 2000, she was arrested for violating her conditions of release, a class E crime, see 15 M.R.S.A. § 1092, and she was taken again to the Knox County Jail where she was held in a holding cell. Dean Aff. ¶ 4; Defendants’ Ex. 13. Dean was strip searched at 7:02 a.m. on December 22, 2000. Dean Affidavit ¶ 5; Defendants’ Ex. 14. Defendants contend that she was strip searched because she exhibited hostile and assaultive behavior. Defendants’ Exs. 13, 14. Although the Intake/Release Log indicates that Ms. Dean was taken to a “detox”
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that those individuals were strip searched, the Court may be required at some later date to
undertake a more in depth inquiry into the reliability of Defendants’ record keeping.25
The other proposed individual Plaintiff – Judy Carter – was a sentenced inmate at the
time she was strip searched and as such she does not fall within the previously certified
class.26 Therefore, the Court will deny Plaintiffs’ Motion for Partial Summary Judgment
with respect to Ms. Winchenbach, Mr. Pratt, Ms. Dean, and Ms. Carter on their claims
against the individual corrections officers raised in Counts IV and VI of the Amended
Complaint.
cell “due to abusive language, hostile and assaultive behavior” it does not indicate why approximately 8 hours later she was strip searched. Defendants’ Exs. 13, 14.
25 The Court understands Plaintiffs to assert that these deficiencies in Defendants’ record keeping support a separate section 1983 violation. As Defendants point out, the violation of an internal policy or procedure or even rules promulgated by the Attorney General, does not per se amount to a constitutional violation. See Beltran v. City of El Paso, 367 F.3d 299, 302 (5th Cir. 2004); Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001); Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir. 1998); White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995); Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985). However, the ultimate reliability of Defendants’ record keeping may be significant in resolving other issues in this case.
The Attorney General's Rules, the Department of Corrections Standards, and Defendants own policies require the articulation of reasonable suspicion in the record to justify any strip search. Defendants’ Exs. 48, 57 and 58. Defendants’ record keeping on strip searches performed at the Knox County Jail appears to be deficient. In both the 1994 and 2000 Jail Inspection Reports, State Inspector Hinckley noted that the Jail was not keeping the required strip search log and was not articulating in their record any reasonable suspicion they had to justify a strip search of a detainee. Hinckley Depo. at 140-41. Indeed, except where the charge itself may provide reasonable suspicion upon which to conduct a search, the Intake/Release Log does not contain the reason that any detainee was strip searched. Robbins Depo. at 135; Hinckley Depo. at 142; Affidavit of Michelle Ward ¶ 20 and Exhibits A through D of Ward Aff. There is insufficient evidence in this record for the Court to make a wholesale determination regarding the accuracy of Defendants’ record keeping regarding when strip searches were conducted. Specifically, the Court cannot conclude from the noted deficiencies in the record keeping and the log book entries proffered on summary judgment that every misdemeanor detainee was strip searched.
26 Judy Carter was arrested for OUI on November 19, 1998. Affidavit of Judy Carter, Exhibit 5, ¶ 3. At the time she was arrested she was not strip searched. However, after she was sentenced to 24 hours in jail but before she began to serve her sentence on December 9, 1999, she was strip searched at the Knox County Jail. Carter Affidavit ¶ 5. Thereafter, she was placed in a holding cell. Carter Affidavit ¶ 5. As she was sentenced inmate, Judy Carter’s strip search does not fall within the class definition. See Order Granting Plaintiff’s Motion for Class Certification (Docket Item No. 21) at 5.
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2. Supervisory Liability of Sheriff Davey Plaintiffs have also sued Sheriff Davey in both his official and his personal capacity. Official capacity suits “’generally represent only another way of pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (quoting Monell, 436 U.S. at 690 n. 55). Accordingly, Plaintiffs’ suit against Sheriff Davey in his official capacity shall be treated as an action against Knox County. Discussed supra. Personal capacity suits, however, seek to impose personal liability upon a government official and damages are recoverable from the official’s personal assets. Graham, 105 S.Ct. at 3105. The undisputed facts establish that Sheriff Davey has final decision making authority with respect to all policy and operational matters at the Knox County Jail. Davey Aff. ¶ 2. Since Sheriff Davey was elected Sheriff of Knox County in 1985 and has remained in that position for the entire class period, he may be responsible for unconstitutional strip search policies and practices during the class period. Davey Aff. ¶ 1. When a plaintiff asserts claims against an individual in his supervisory capacity, liability cannot be established on a basis of respondeat superior. Rather, “[a] supervisor may be found liable only on the basis of his own acts or omissions. Moreover, a supervisor cannot be liable for merely negligent acts. A supervisor's acts or omissions must amount to a reckless or callous indifference to the constitutional rights of others.” Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994) (internal citations omitted).
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a. Detainees Charged with Non-Violent, Non-Weapon, and Non-Drug Felony Plaintiffs have shown that Sheriff Davey’s written policy permitted, as part of the booking process, the strip searching all detainees charged with non-violent, non-weapon, non-drug felonies without reasonable suspicion of concealing contraband or weapons caused the deprivation of their rights under the Fourth Amendment. Defendant Davey has raised the defense of qualified immunity. Whether an official may prevail in a qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). A government official making a policy decision is entitled to qualified immunity if the law was not clearly established at the time the determination was made. If the law is unclear, “an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id.
The Court does not think it a great leap from prior cases for a reasonable law enforcement officer to conclude that invasive strip searches of all detainees who arrive at a local correctional facility, like Knox County Jail, who are charged with non-violent, non-weapon or non-drug felonies, must be supported by reasonable particularized suspicion. Fourth Amendment jurisprudence concerning the standard for determining the reasonableness of a strip search has been rather consistent for many years. See, e.g., Bell, 441 U.S. at 559; Swain, 117 F.3d at 7; Justice v. City of Peachtree, 961 F.2d 188, 192 (11th Cir. 1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984); Mary Beth G. v. City of
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Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Although it has been clearly established in the law for some time that a blanket policy of strip searching all misdemeanor detainees is unlawful, the constitutionality of a policy of strip searching detainees charged with non-violent, non-weapon, and non-drug felonies without reasonable suspicion has not been previously established in this Circuit. The fact that neither the Supreme Court nor the United States Court of Appeals for the First Circuit has specifically ruled on the constitutionality of blanket strip search policies for detainees charged with non-violent, non-weapon or non-drug felonies, inclines the Court to find that Sheriff Davey is entitled to the benefit of the doubt on this point. Although conduct could potentially violate clearly established law even if the allegedly unconstitutional conduct had not been the subject of a prior court case, see Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), the right allegedly violated must be defined at an appropriate level of specificity before a court can conclude that it was clearly established, see Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)(citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
The Department of Corrections Standards and the Attorney General’s Rules permit strip searches of all felony detainees. Sheriff Davey’s reliance on those standards and rules, led to the development and implementation of Knox County’s policy authorizing strip searches of all felony detainees. While the Fourth Amendment rights of those individuals charged with felonies of a non-violent, non-weapon, and non-drug nature who were automatically strip searched were indeed violated, the Court concludes that those rights were not clearly established in the law during the relevant class period.
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The Court concludes that Sheriff Davey is, therefore, entitled to qualified immunity for the Knox County Jail Policy permitting the strip search of all persons charged with nonviolent, non-weapon, and non-drug felonies without reasonable suspicion.
Because he prevails on his defense of qualified immunity, the Court will deny Plaintiffs’ Motion for Partial Summary Judgment with respect that part of Count II alleging that Sheriff Davey is responsible, in his personal capacity, for the Knox County Jail’s unlawful policy of strip searching detainees charged with non-violent, non-weapon, and non-drug felonies. The Court will, therefore, grant Summary Judgment to Sheriff Davey establishing that he is entitled to qualified immunity for Plaintiffs’ claim in Count II of an unconstitutional policy with respect to strip searching detainees charged with non-violent, non-weapon, non-drug felonies without reasonable suspicion.
b. Detainees Charged with Misdemeanors Although the written policies conformed to constitutional standards applicable to misdemeanants, Plaintiffs have shown that the Knox County Jail, under the leadership of Sheriff Davey, had a widespread custom and practice of strip searching all detainees charged with misdemeanors without reasonable suspicion that they were concealing contraband and that this practice caused the deprivation of their rights under the Fourth Amendment. “If the right the government allegedly violated was clearly established at the time of the challenged conduct, ‘the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.’” Lynch v. City of Boston, 180 F.3d 1, 13 (1st Cir. 1999)(quoting Harlow, 457 U.S. at 81819). During the relevant class period, the Knox County Jail’s practice of strip searching all new detainees charged with misdemeanors without reasonable suspicion, was clearly
43

unconstitutional. See Swain, 117 F.3d at 5 (“[I]t was clearly established at the time of the search [in 1993] that the Fourth Amendment requires at least a reasonable suspicion to conduct a [strip search].”)(emphasis in original). Maintenance of the practice after the operative class date – November 19, 1996 – insofar as it applied to misdemeanants, cannot be shielded by qualified immunity.
Unlike individual officer liability, the liability of supervisory officials does not depend on their personal participation in the acts of their subordinates which immediately brought about the violation of the plaintiff's constitutional rights. See Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985). Liability can result from Sheriff Davey’s acquiescence to Knox County Jail’s ongoing practice of strip searching all detainees charged with misdemeanors. See Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989) (A municipal policymaker may be found to have caused subordinate officials’ conduct by reason of the policymaker’s “acquiescence in a long standing practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.”).
Some evidence in the record points to Sheriff Davey’s actual knowledge of this ongoing practice. For example, the 1994 and 2000 Jail Inspection Reports and the statements made by two corrections officers that they “recalled a discussion several years ago in which the Voyer and D.O.C. policies were mentioned and that the decision was made by someone (unidentified) to disregard the applicable policy and standard and continue to search all inmates, regardless of crime class, if they were admitted to the general population.” Plaintiffs’ Ex. 20. However, Sheriff Davey disputes that he had actual knowledge of the unlawful custom and practice of strip searching detainees
44

charged with misdemeanors without reasonable suspicion of concealing contraband or weapons. Davey Aff. ¶ 14. Regardless of his actual knowledge, the Court concludes that based on the undisputed evidence in the record he should have known that the practice was ongoing, and that, despite the change to the written policy in 1994 and the institution of new procedures in 2001, the practice had not been eliminated. The issue then becomes whether Plaintiffs have established that Sheriff Davey’s conduct amounts to deliberate indifference or willful blindness to an unconstitutional practice of his subordinates. See Camilo-Robles, 151 F.3d at 7. Finally, Plaintiffs must establish a causal connection between Sheriff Davey’s conduct and the corrections officers’ unconstitutional actions. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
Both Jail Inspection Reports noted that, based on staff statements made at the time, the practice by corrections officers of strip searching all detainees charged with misdemeanors was ongoing and that it needed to stop. It is telling that even after the 2000 Jail Inspection Report clearly found that misdemeanor detainees were being routinely strip searched, there was no clear and plain statement by Sheriff Davey that this practice was to stop. Sheriff Davey put in place new procedures for misdemeanor detainees after the 2000 Jail Inspection, yet, as discussed in the section on municipal liability, none of those new procedures clearly stated that misdemeanor detainees were not to be strip searched absent reasonable suspicion. Defendants’ Exs. 49, 50. As discussed in detail in the prior section on municipal liability, although it appears that Sheriff Davey directed the jail administrator to clarify the procedures for detainees who had not been strip searched, he never plainly directed that the corrections officers not
45

search misdemeanor detainees without reasonable suspicion. Moreover, he failed to provide remedial training aimed at correcting the unlawful practice.
Sheriff Davey’s assent to this ongoing unconstitutional practice is evident by reviewing his corrections department’s daily log entries. Examination of the Intake/Release Log, maintained in the booking area of the jail, indicates that corrections officers were strip searching misdemeanor detainees without reasonable suspicion. For example, as recently as July 13, 2001, Corrections Officer Springer strip searched a detainee charged with driving to endanger – a Class E crime, Defendants’ Ex. 67; Ex. A to Ward Aff., and on July 6, 2001, Corrections Officer Waterman strip searched a detainee charged with OUI – a Class D crime, Defendants’ Ex. 68; Ex. B to Ward Affidavit. Indeed, the record indicates that Sheriff Davey was a named defendant in the Miller lawsuit, which alleged that after being arrested and brought to the Knox County Jail on a misdemeanor charge plaintiff was strip searched.
Further confirmation of Sheriff Davey’s acquiescence to the practice is highlighted in intradepartmental memoranda. In 2001, Jail Administrator Robbins wrote to local police chiefs notifying them that the Knox County Jail would no longer provide the service of strip searching misdemeanor arrestees on “the request of arresting officers (for the purpose of discovering evidence).” Plaintiffs’ Ex. 23. Obviously, before the local police departments received these memoranda, corrections officers conducted strip searches of misdemeanor arrestees on the request of the arresting police officer. In addition, statements by corrections officers in 2003, during an interview with Jail Administrator Robbins, support the conclusion that corrections officers believed that they should ignore the policy directing that misdemeanor detainees shall not be strip searched
46

without reasonable suspicion and continue to strip search all detainees admitted to the jail. Plaintiffs’ Ex. 20. The widespread practice was sufficient to alert Sheriff Davey that the unlawful strip search practice persisted. On the evidence presented in the summary judgment record, the Court concludes that Sheriff Davey’s failure to take any corrective action directed at eradicating this pervasive practice – even in the face of official Department of Corrections’ reports and the incontrovertible record evidence that the practice persisted – amounts to a reckless indifference of the constitutional rights of class members arrested on misdemeanor charges. Sheriff Davey’s reckless indifference allowed the practice to persist for years and caused the violation of the constitutional rights of Plaintiffs arrested on misdemeanor charges.
For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Partial Summary Judgment with respect to that part of Count II alleging that Sheriff Davey is responsible, in his personal capacity, for the Knox County Jail’s unconstitutional custom and practice of strip searching detainees charged with misdemeanors.
III. CONCLUSION
Accordingly, it is ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, be and it is hereby, GRANTED in respect to:
Count I against Knox County on Plaintiffs’ claim of an unconstitutional policy with respect to strip searching all felony detainees and an unconstitutional custom or practice of strip searching all misdemeanor detainees; and Count II against Sheriff Davey on Plaintiffs’ claim of an unconstitutional custom or practice of strip searching all misdemeanor detainees. It is further ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, be and it is hereby, DENIED in respect to:
47

Count I against Knox County on Plaintiffs’ claim of failure to train corrections officers;
Count II against Sheriff Davey on Plaintiffs’ claim of an unconstitutional policy with respect to strip searching all felony detainees; and
Count IV and VI against individual corrections officers for the strip searches of Laurie Tardiff, Susan Winchenbach, Andrew Pratt, Lynette Dean, and Judy Carter.
Finally, it is ORDERED that summary judgment be, and it is hereby, GRANTED to
Sheriff Davey establishing that he is entitled to qualified immunity for Plaintiffs’ claim in
Count II of an unconstitutional policy with respect to strip searching detainees charged
with non-violent, non-weapon, non-drug felonies without reasonable suspicion.

Dated this 2nd day of November, 2005.

/s/ Gene Carter Gene Carter Senior United States District Judge

48

 
 SCANNED :"'-~.)~:~~i;:~icr (''''I",

UNITED

STATES D. Ist.nct

DISTRICT of Mam. e

COtJ~/t~;i( . ~"'."

hL/-n.'tlfi,;I;'t")1~t,1-~'!:~L!- LPJI

lUiJJ JAN ..,

)

Dock""

LAURIE TARDIF,

)

cy

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

JANE DOE and JOHN DOE,

)

Defendants

)

)

DEFENDANTS' FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

NOW COME Defendants, by and through undersigned counsel, and consistent with and pursuant to the provisions of F.R.Civ.P. 15(a), hereby amend their answer to Plaintiffs First Amended Complaint as follows:
AFFIRMATIVE DEFENSES 1. One or more counts ofPlaintiff s Amended Complaint fail to state a cause of action upon which relief may be granted. 2. This Court does not have personal jurisdiction over fictitious Defendants Jane Doe and John Doe. 3. Plaintiff s Amended Complaint is barred due to insufficiency of service of process as to fictitious Defendants Doe. 4. Any individual defendants are entitled to qualified immunity. 5. The claims of one or more members of the proposed class are barred by the applicable statute of limitations.

ANSWER INTRODUCTION
1. Defendant admits that Plaintiff brings a civil rights action against defendants identified therein, but denies that any unconstitutional searches of Plaintiff occurred and denies that Plaintiff sustained any damages as a result of any searches.
2. Defendant admits that the named Plaintiff seeks to represent a class of plaintiffs, but denies that any members of the potential class sought to be certified by Plaintiff were improperly searched.
3. Defendants deny the allegations contained in Paragraph 3 of Plaintiffs Amended Complaint.
4. Defendants admit that Plaintiff seeks to obtain a declaratory judgment and injunction relative to searches conducted by Defendants, but further and specifically denies that any search conducted by Defendants were unconstitutional or otherwise unlawful. JURISDICTION
5. The allegations contained in Paragraph 5 ofPlaintiffs Amended Complaint do not require a response. PARTIES
6. Upon information and belief, Defendants admit the allegations contained in Paragraph 6 of Plaintiffs Amended Complaint.
7. Defendants admit the allegations contained in Paragraph 7 of Plaintiffs Amended Complaint.
2
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"'" 1 1
8. Defendants admit that Daniel Davey is currently and has been the duly-elected Sheriffof Knox County, but are without sufficient knowledge or information so as to form a belief as to whether he was said Sheriff at "all times relevant to this Amended Complaint", as the Amended Complaint does not identify those times. Defendants have insufficient knowledge or information so as to form a belief as to whether each and every action of Defendant Davey, as alleged in the Amended Complaint, was taken under color of law and therefore deny that allegation.
9. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 9 of Plaintiffs Amended Complaint and therefore deny same.
10. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 10 of Plaintiffs Amended Complaint and therefore deny same.
11. Defendants have insufficient knowledge or information so as to form a belief as to the truth ofthe allegations contained in Paragraph 11 of Plaintiffs Amended Complaint and therefore deny same. FACTS
12. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the specific allegations contained in Paragraph 12 of Plaintiffs Amended Complaint and therefore deny same. Upon information and belief, Defendants believe these allegations to be generally correct.
13. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the specific allegations contained in Paragraph 13 of Plaintiffs Amended Complaint and
3
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therefore deny same. Upon information and belief, Defendants believe these allegations to be generally correct.
14. Defendants are without sufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 14 of Plaintiffs Amended Complaint and therefore deny same.
15. Defendants admit the allegations contained in Paragraph 15 of Plaintiffs Amended Complaint.
16. Defendants admit the allegations contained in Paragraph 16 of Plaintiff s Amended Complaint.
17. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 17 of Plaintiffs Amended Complaint and therefore deny same.
18. Defendants have insufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 18 of Plaintiffs Amended Complaint and therefore deny same.
19. Defendants deny the allegations contained in Paragraph 19 of Plaintiffs Amended Complaint.
20. Defendants deny the allegations contained in Paragraph 20 of Plaintiffs Amended Complaint.
21. Defendants deny the allegations contained in Paragraph 21 of Plaintiff s Amended Complaint.
4
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22. Defendants are without sufficient knowledge or information so as to form a beliefto the truth ofthe allegations contained in Paragraph 22 ofPlaintiffs Amended Complaint and therefore deny same.
23. Defendants are without sufficient knowledge or information so as to form a beliefto the truth ofthe allegations contained in Paragraph 23 of Plaintiffs Amended Complaint and therefore deny same.
24. Defendants are without sufficient knowledge or information so as to form a beliefto the truth of the allegations contained in Paragraph 24 of Plaintiff s Amended Complaint and therefore deny same.
25. Defendants are without sufficient knowledge or information so as to form a beliefto the truth of the allegations contained in Paragraph 25 of Plaintiff's Amended Complaint and therefore deny same.
26. Defendants are without sufficient knowledge or information so as to form a beliefto the truth ofthe allegations contained in Paragraph 26 of Plaintiff s Amended Complaint and therefore deny same.
27. Defendants are without sufficient knowledge or information so as to form a beliefto the truth ofthe allegations contained in Paragraph 27 of Plaintiffs Amended Complaint and therefore deny same.
28. Defendants are without sufficient knowledge or information so as to form a belief as to the truth ofthe specific allegations contained in Paragraph 28 ofPlaintiffs Amended Complaint, but upon general information and belief, do believe that the Plaintiff would have been held and/or released on bail as per the instructions of an officer of the court with authority to make bail
5
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determinations. 29. Defendants deny the allegations contained in Paragraph 29 of Plaintiff's Amended
Complaint. 30. Defendants deny the allegations contained in Paragraph 30 of Plaintiff's Amended
Complaint. 31. Defendants are without sufficient knowledge or information so as to form a belief as to
the truth of the allegations contained in Paragraph 31 of Plaintiff's Amended Complaint and therefore deny same.
32. Defendants deny the allegations contained in Paragraph 32 of Plaintiff's Amended Complaint.
33. Defendants deny the allegations contained in Paragraph 33 of Plaintiff's Amended Complaint.
34. Defendants deny the allegations contained in Paragraph 34 of Plaintiff's Amended Complaint.
35. Defendants deny the allegations contained in Paragraph 35 of Plaintiff's Amended Complaint.
36. Defendants deny the allegations contained in Paragraph 36 of Plaintiff's Amended Complaint.
37. Defendants deny the allegations contained in Paragraph 37 of Plaintiff's Amended Complaint.
38. Defendants deny the allegations contained in Paragraph 38 of Plaintiff's Amended Complaint.
6
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39. The allegations contained in the first sentence of Paragraph 39 of Plaintiffs Amended Complaint state a legal conclusion to which no response is required. With regard to the allegations contained in the second sentence ofParagraph 39 ofPlaintiff s Amended Complaint, the documents referred to therein speak for themselves. To the extent that the allegations contained in Paragraph 39 ofPlaintiffs Amended Complaint differ in any way from the content of the documents referred to therein, the Defendants deny those allegations.
40. Defendants deny the allegations contained in the first sentence of Paragraph 40 of Plaintiff s Amended Complaint. Defendants admit the allegations contained in the second sentence of Paragraph 40 of Plaintiffs Amended Complaint. Defendants admit the allegations contained in the third sentence of Paragraph 40 of Plaintiffs Amended Complaint. Defendants further and specifically aver that they played no role in the referenced motor vehicle stop. Defendants admit the allegations contained in the fourth sentence ofParagraph 40 ofPlaintiffs Amended Complaint but further and specifically aver that they played no role in the license check or the outstanding warrant and also further and specifically aver that Miller had been charged with and convicted ofoperating under the influence of intoxicating liquor, had failed to pay her fine in a timely fashion, and had valid warrants issued for her arrest in connection with her failure to pay her fine and/or to appear in court as required. Defendants admit the allegations contained in the fifth sentence of Paragraph 40 of Plaintiffs Amended Complaint insofar as they assert that she wa~ jailed over the Patriot's Day weekend, and the Defendants admit that Miller was subjected to certain searched procedures during her period ofincarceration, but are without sufficient knowledge or information so as to form a belief as to the precise nature and number of such searches and therefore deny those allegations. Defendants are without sufficient knowledge or information so as to form a belief as to the truth of
7
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the allegations contained in the sixth sentence of Paragraph 40 of Plaintiff's Amended Complaint and therefore deny same. Defendants admit that Knox County settled Carmen Miller's claim in early 2001, but deny that such settlement was made after a jury was selected. Defendants are without sufficient knowledge or information so as to form a belief as to the truth ofthe allegations contained in the last sentence of Paragraph 40 of Plaintiff's Amended Complaint with respect to the chronology of events and therefore deny same. Defendants deny that Plaintiff Tardiff was unconstitutionally strip searched at any time at the Knox County Jail. CLASS ACTION ALLEGATIONS
41. Defendants admit that Plaintiff seeks to have a class certified of the nature alleged in Paragraph 41 of Plaintiff's Amended Complaint, but further and specifically deny that this case and/or the proposed class is appropriate for certification under governing law.
42. Defendants deny the allegations contained in Paragraph 42 of Plaintiff's Amended Complaint.
43. Defendants deny the allegations contained in Paragraph 43 of Plaintiff's Amended Complaint.
44. Defendants deny the allegations contained in Paragraph 44 of Plaintiff's Amended Complaint.
45. Defendants deny the allegations contained in Paragraph 45 of Plaintiff's Amended Complaint.
46. Defendants deny the allegations contained in Paragraph 46 of Plaintiff's Amended Complaint.
8
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47. Defendants deny the allegations contained in Paragraph 47 of Plaintiffs Amended Complaint.
48. Defendants deny the allegations contained in Paragraph 48 of Plaintiffs Amended Complaint.
49. Defendants deny the allegations contained in Paragraph 49 of Plaintiffs Amended Complaint.
COUNT I: 42 U.S.C. § 1983 DEFENDANT. KNOX COUNTY 50. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 49 of Plaintiffs Amended Complaint as iffully set forth herein. 51. Defendants deny the allegations contained in Paragraph 51 of Plaintiff s Amended Complaint. 52. Defendants deny the allegations contained in Paragraph 52 of Plaintiffs Amended Complaint. 53. Defendants deny the allegations contained in Paragraph 53 of Plaintiffs Amended Complaint. 54. Defendants deny the allegations contained in Paragraph 54 of Plaintiffs Amended Complaint. 55. Defendants deny the allegations contained in Paragraph 55 of Plaintiffs Amended Complaint. WHEREFORE, Defendants pray for judgment in their favor on Count I of Plaintiff s Amended Complaint in all respects, including a denial of Plaintiffs request that the proposed class be certified.
9
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COUNT II: 42 U.S.C. § 1983 DEFENDANT, SHERIFF DANIEL DAVEY 56. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 55 of Plaintiff's Amended Complaint as if fully set forth herein. 57. Defendants admit that Defendant Daniel Davey is currently the SheriffofKnox County and has the authority to make certain decisions with respect to operation of the Knox County Jail. 58. Defendants deny the allegations contained in Paragraph 58 of Plaintiff's Amended Complaint. 59. Defendants deny the allegations contained in Paragraph 59 of Plaintiff's Amended Complaint. 60. Defendants deny the allegations contained in Paragraph 60 of Plaintiff's Amended Complaint. 61. Defendants deny the allegations contained in Paragraph 61 of Plaintiff's Amended Complaint. 62. Defendants deny the allegations contained in Paragraph 62 of Plaintiff's Amended Complaint. 63. Defendants deny the allegations contained in Paragraph 63 of Plaintiff's Amended Complaint. 64. Defendants deny the allegations contained in Paragraph 64 of Plaintiff's Amended Complaint. 65. Defendants deny the allegations contained in Paragraph 65 of Plaintiff's Amended Complaint.
10
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66. Defendants deny the allegations contained in Paragraph 66 of Plaintiff s Amended Complaint.
WHEREFORE, Defendants pray for judgment in their favor on Count II of Plaintiffs Amended Complaint in all respects, including a denial of Plaintiffs request that the proposed class be certified.
COUNT III: PUNITIVE DAMAGES 67. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 66 of Plaintiffs Amended Complaint as iffully set forth herein. 68. Defendants deny the allegations contained in Paragraph 68 of Plaintiffs Amended Complaint. 69. Defendants deny the allegations contained in Paragraph 69 of Plaintiffs Amended Complaint. WHEREFORE, Defendants pray for judgment in their favor on Count III of Plaintiffs Amended Complaint, plus their costs.
COUNT IV: 42 U.S.C. § 1983 DEFENDANT, JANE DOE 70. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 69 of Plaintiffs Amended Complaint as iffully set forth herein. 71. Defendants are without sufficient knowledge or information so as to form a belief as to the truth of the allegations contained in Paragraph 71 of Plaintiffs Amended Complaint and therefore deny same. 72. Defendants deny the allegations contained in Paragraph 72 of Plaintiff s Amended Complaint.
11
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73. Defendants deny the allegations contained in Paragraph 73 of Plaintiff's Amended Complaint.
74. Defendants deny the allegations contained in Paragraph 74 of Plaintiff's Amended Complaint.
75. Defendants deny the allegations contained in Paragraph 75 of Plaintiff's Amended Complaint.
WHEREFORE, Defendants pray for judgment in their favor on Count IV of Plaintiff's Amended Complaint in all respects, including a denial ofPlaintiff's request that the proposed class be certified.
COUNT V: PUNITIVE DAMAGES 77. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 75 of Plaintiff's Amended Complaint as iffully set forth herein. 77. Defendants deny the allegations contained in Paragraph 77 of Plaintiff's Amended Complaint. 78. Defendants deny the allegations contained in Paragraph 78 of Plaintiff's Amended Complaint. WHEREFORE, Defendants pray for judgment in their favor on Count V of Plaintiff's Amended Complaint, plus their costs.
COUNT VI: 42 U.S.C. § 1983 DEFENDANT, JOHN DOE 79. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 78 of Plaintiff's Amended Complaint as iffully set forth herein. 80. Defendants are without sufficient knowledge or information so as to form a belief as to
12
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the truth of the allegations contained in Paragraph 80 of Plaintiff s Amended Complaint and therefore deny same.
81. Defendants deny the allegations contained in Paragraph 81 of Plaintiff s Amended Complaint.
82. Defendants deny the allegations contained in Paragraph 82 of Plaintiffs Amended Complaint.
83. Defendants deny the allegations contained in Paragraph 83 of Plaintiffs Amended Complaint.
84. Defendants deny the allegations contained in Paragraph 84 of Plaintiff s Amended Complaint.
WHEREFORE, Defendants pray for judgment in their favor on Count VI of Plaintiffs Amended Complaint in all respects, including a denial ofPlaintiffs request that the proposed class be certified.
COUNT V(sic): PUNITIVE DAMAGES 85. Defendants repeat and reassert each and every response provided to the allegations contained in Paragraphs 1 through 84 of Plaintiffs Amended Complaint as if fully set forth herein. 86. Defendants deny the allegations contained in Paragraph 86 of Plaintiffs Amended Complaint. 87. Defendants deny the allegations contained in Paragraph 87 of Plaintiffs Amended Complaint.
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.. ,

WHEREFORE, Defendants pray for judgment in their favor on Count V(sic) of Plaintiff's Amended Complaint, plus their costs.

Dated: January 29, 2003

Peter 11. Marchesi, Esq. Wheeler & Arey, P.A. Attorney for Defendants 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

14 I

 
 UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

THIRD FINAL SETTLEMENT AGREEMENT I. SUMMARY
The parties agreed to settle this case on Friday, September 29, 2006 at the Judicial Settlement Conference with Chief Judge Singal. (Docket Item No. 328). The general terms of the agreement are set forth in a Settlement Agreement signed by all parties on September 29, 2006. Additionally, the Court will issue an injunctive Order designed to prevent unconstitutional strip searches in the future. Under the Settlement Agreement, the parties are required to submit, using the Second Amended Settlement Agreement approved in Nilsen v. York County, (02-CV-212-P-H) their final written agreement, along with a Motion to Recertify the Class on or before Tuesday, November 14, 2006. (Docket Item No. 368, supra).

1

Pursuant to the Court’s October 4, 2006 “Remark” (Docket Item No. 334), the parties will either jointly agree on language to be included in the injunctive Order, or will separately submit proposed orders to the Court.
The Agreement also settles all claims of the class, including, without limitation on the generality of the foregoing, claims of the class representatives and absent class members who do not opt out as provided, herein, for compensatory damages, punitive damages, attorneys fees and costs, and interest by establishing a common fund of Three Million Dollars ($3,000,000.00), to be shared among participating class members after payment of attorneys fees, costs, claims administration expenses, and class representative bonuses. Under this Agreement, class members will receive one payment regardless of the number of times that they were booked into the jail and searched during the class period. II. TERMS A. Procedural History
1. Plaintiff filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted Plaintiff’s motion for class certification and certified this case as a class action under Fed.R.Civ.P. 23(b)(3). The class was defined as follows: All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
2

(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or (2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or (3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or (4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony. The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit. 2. Plaintiffs alleged that all arrestees or pre-trial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of the booking procedure. The Defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements. B. Agreement 1. The parties agree that the class period begins on November 19, 1996, and ends December 31, 2004. 2. The Parties understand that the Court will issue an injunction the purpose of which will be to ensure the Defendants’ compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in the Court’s Amended Permanent Injunction Pursuant to Settlement
3

Agreement (Docket Item No. 364), and all parties waive their rights to appeal the entry of, and the terms of this Injunctive Order.
3. An approved class action notice was sent to potential class members at their last known addresses and notices were published as required by the Court after class certification. No class members asked to be excluded by the opt out deadline.
4. The Defendants will pay Three Million Dollars ($3,000,000.00) to settle all claims brought by Plaintiff and class in this action including claims for attorneys’ fees, costs, administrative costs, and interest by check made out to the “Knox Settlement Fund” and delivered to class counsel no later than February 15, 2007.
5. The parties agree and acknowledge that the Defendants have denied liability in whole and that the payment was made and other agreements contained herein were given without admission of liability, which is expressly denied, and which payment was made and other agreements were given by the Defendants solely for the purpose of buying their peace and freedom from litigation. No language contained in this Settlement Agreement or any language contained in any motions for approval of settlement filed by Plaintiffs or in any orders by the Court approving or denying either preliminary or final approval to the Settlement Agreement shall in any way be construed as acknowledgments or admissions of liability, all of which are expressly denied by the Defendants.
6. The Defendants and their counsel agree to provide reasonable assistance to facilitate the administration of this settlement including providing access to data and documents necessary to determine class membership if a person disputes denial of a
4

claim by the claims administrator. 7. The Defendants understand that this agreement will require approval of the
Court. The Defendants will ask the Court to approve the terms of the settlement. 8. If Plaintiff has to incur any additional attorney time or costs to seek collection
of the settlement fund because of a default by the Defendants in the timely performance of its obligations to pay under this Agreement, the Defendants may be responsible for payment of reasonable attorneys fees and costs under 42 U.S.C. § 1988 and only upon approval of the Court. Any request for such additional fees and costs shall be by application to the Court with opportunity for objection by the Defendants.
9. Class counsel will establish the “Knox Settlement Fund” as a qualified settlement fund. Once the Court grants final approval of the settlement, the entire fund and all interest or income resulting from the investment of the fund shall be part of the fund. If the Defendants do not pay all or part of their obligation on time, the amount owed by that Defendant will accrue interest at the rate of twelve percent (12%) per year, compounded daily. Interest will only apply to the unpaid portion of the Defendant’s obligation.
10. The Settlement Fund and any money earned by the fund will be invested in the Marshall Money Market fund which is AAA rated by Fitch, unless and until otherwise ordered by the Court. Class Counsel, Class Representatives, Defendants and Defense Counsel shall not have any responsibility or liability for the investment of the Settlement Fund. If the Court does not give final approval to the settlement, the Plaintiffs
5

will return the amount paid to the Defendants. III. COURT SUPERVISION
1. The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.
2. Any deadlines, dates, or other details in this Settlement Agreement may be changed by the Court on a showing of good cause. IV. HEARING
1. The Court will schedule a hearing to decide whether to grant preliminary approval to the settlement, recertify the class for settlement purposes and to issue a permanent Injunctive Order. If approval is granted, the parties will begin to implement the settlement. The Defendants will make their payment as specified hereinabove, and the Plaintiffs will send the approved notice to the class.
2. The Court will hold a final fairness hearing to decide whether to grant final approval of settlement on April 23, 2007 at 10:00 a.m..
3. If the Court grants final approval of the settlement, the Knox Settlement Fund will belong to the Plaintiff and the class, and the Defendants will no longer have any right to, title to, or interest in the funds. The funds will then be distributed pursuant to orders of the Court.
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V. CLAIMS ADMINISTRATOR 1. Class counsel requests that the firm of Analytics, Inc. of Chanhassen, Minnesota
be approved by the Court as Claims Administrator. The Declaration of Richard Simmons and the qualifications of Analytics, Inc. are attached hereto as Exhibit E.
2. Class counsel recommends that the Claims Administrator be permitted to designate an attorney as agent in Knox County to distribute checks to any claimants who wish to pick up their check. This agent will be paid by the Claims Administrator for performing this service.
3. The Claims Administrator will administer notice to class members in the manner prescribed by the Court; shall accept and docket all claims; shall send all notices that a claim has been accepted or rejected to class members; shall resolve any appeals of claim denials; shall calculate the amount of each claim pursuant to the formula set out in this Agreement; and shall report to the Court as necessary, including providing a final report.
4. Class counsel will oversee settlement administration and will provide direction to the Claims Administrator as needed. VI. NOTICE, OBJECTIONS, CLAIMS AND OPT OUT
1. Class counsel will send a Notice of Class Action Settlement and of the Hearing to Approve the Settlement (“Notice of Settlement”), a Settlement Claim Form, a Frequently Asked Questions sheet and an Opt Out Form, by first class mail postage prepaid to all potential class members, whose addresses are known to class counsel, at
7

their last known address within three weeks after the Court’s order granting preliminary approval. If any mail is returned by the post office with notice of a more current address, class counsel will resend the notice to that address. Class counsel is not required to make any further efforts to send mail directly to class members. A Notice of Settlement and Settlement Claim Form and/or an Opt Out Form will be made available to anyone who requests such information. Claim Forms and Opt Out forms will be available to be downloaded from the web site or on request to the Claims Administrator including through a toll free number.
2. The Notice of Settlement will include the terms of the settlement (attached as Exhibit A) and the class member’s right to contest the settlement. This Notice includes Frequently Asked Questions which explain the settlement terms and answer anticipated questions. Attached as Exhibit F is the envelope to be used for mailing the proposed Notice of Settlement.
3. The Settlement Claim Form requests the class member’s contact information, affirmation that he or she meets the class definition, instructions for check delivery, and a Form W-9. The proposed settlement claim form is attached as Exhibit B.
4. The proposed Opt Out/Exclusion Form requests the class members’ contact information, affirmation that he or she meets the class definition and a statement by the class member that he or she wishes to opt out and be excluded from participating in the class action settlement. The proposed Opt Out/Exclusion form is attached at Exhibit G.
5. Class counsel will also publish notice of the settlement twice in the Portland
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Press Herald, Rockland Courier Gazette and the Bangor Daily News. This notice is attached as Exhibit C. The Defendant agrees to post the notice for publication attached as Exhibit C in the intake/booking area as well as in one area frequented by inmates in each of the separate pods at the jail. The notices will be posted as soon as the Court approves the mailing of a class wide notice of proposed settlement attached as Exhibit A, and will remain up until the last day that the settlement claim forms can be filed. In addition, the Defendant has agreed to make available during the same timeframe defined in the prior sentence, to inmates (or anyone else) who requests it, a copy of the Notice of the Settlement attached as Exhibit A and counsel for the class will provide the County with 500 copies.
6. In addition to the legal notices, class counsel will issue a press release informing the public of the settlement. The press release is attached as Exhibit D.
7. Class counsel, through the Claims Administrator, will establish a website (www.knoxcountyjailclass.com) which will include the Notice of Settlement (Exhibit A) and the Settlement Claim Form (Exhibit B).
8. The Claims Administrator will send a claim form and/or opt out/exclusion form to anyone who requests one before the time for filing claim forms has expired. In addition, the Claims Administrator will maintain updated documents regarding this settlement on the website including a claim form which can be printed and mailed. The Claims Administrator will also establish, within three weeks after the Court grants preliminary approval of this settlement, and maintain a toll-free number for claimants to
9

call with questions about the claim form. This number will be operational for at least five (5) months.
9. In order for a class member to claim a share of the settlement, he or she must submit a valid and complete Settlement Claim Form postmarked no later than February 12, 2007. This deadline is called the “Claims Deadline”.
10. Class members have the right to be excluded from the settlement class pursuant to Rule 23 (c) (2) of the Federal Rules of Civil Procedure and as provided herein. To do so, a class member must mail a written request to the claims administrator at Dare Claims Administrator, P.O. Box 2006 Chanhassen, MN 55317-2006. In order for a class member to opt out and be excluded from participation in the proposed settlement, he or she must submit an opt out/exclusion form to the claims administrator postmarked no later than February 12, 2007. This deadline is called the “Opt Out Deadline”.
11. In order for a class member to object to the proposed settlement, he or she must submit written notice of the objection to the Claims Administrator. In addition, an objector may also appear in person or through counsel at the final fairness hearing when the objection will be considered by the Court. The Claims Administrator will forward all letters of objection to the Court and to counsel for all parties. (The class member must also submit a Settlement Claim Form if he or she wishes to be eligible to share in the settlement should it be approved despite his or her objection.)
12. Settlement Claim Forms received by the Claims Administrator within two weeks after the Claims Deadline will be treated as if postmarked by the Claims Deadline.
10

This two-week grace is the Amnesty Period. 13. Notwithstanding paragraph 12 above, claim forms will be treated as filed in a
timely manner if either (1) the form is received by the Claims Administrator by no later than February 12, 2007, or (2) if a request to permit additional time to file a claim form is received by the Court by no later than February 12, 2007 and the related claim form is received by the Claims Administrator by no later than February 26, 2007. Claim forms received after February 26, 2007 will be denied as untimely.
14. Opt Out Forms received by the Claims Administrator within two weeks after the Opt Out Deadline will be treated as if postmarked by the Opt Out Deadline. This two-week grace period is the Amnesty Period.
15. Notwithstanding paragraph 14 above, Opt Out Forms will be treated as filed in a timely manner if either (1) the form is received by the Claims Administrator by no later than February 12, 2007, or (2) if a request to permit additional time to file an Opt Out Form is received by the Court by no later than February 12, 2007 and the related Opt Out Form is received by the Claims Administrator by no later than February 26, 2007. Opt Out Forms received after February 26, 2007 will be denied as untimely. VII. APPROVALS AND APPEALS
1. The Claims Administrator will review each claim form to determine that the claimant is a class member by confirming (a) that the Settlement Claim Form is timely and valid, (b) that the information on the form is consistent with available booking data previously provided by the Defendants, and (c) that the Form is completely filled out and
11

signed. 2. The Claims Administrator may, in its discretion, waive a technical defect in the
Claim Form to achieve substantial justice. 3. If the booking data indicates that the person does not meet the class definition,
the Claims Administrator will send a Notice of Claim Denial to the claimant. The denial notice will indicate the reason or reasons for the denial. These would include (a) not at the jail during the class period, (b) no booking for an offense within the class definition, or (c) that the person was not strip searched while being held awaiting bail or a first court appearance. The denial notice also will indicate how to appeal the denial and the time deadline for filing a written notice of appeal to the Claims Administrator and the Court. Because the booking data is sometimes inaccurate or non-descriptive as to whether a person was strip searched, the Claims Administrator may accept the Claimant’s affirmation of strip search.
4. In order to object to the Claims Administrator’s determination that he or she is not a class member, a claimant must file a written notice of appeal to the Claims Administrator postmarked no later than two (2) weeks after the date of the mailing on the Notice of Claim Denial. He or she may include written documentation that shows that he or she is a class member, and he or she may also include a written statement. Those objections claiming that a person who otherwise met the class definition was strip searched will be reviewed against available records of the Defendants to determine if the person was strip searched. The Claims Administrator will make a determination on each
12

appeal no later than eight (8) weeks after the deadline for class members to file such appeals. The Claims Administrator will inform the class member in writing of their determination and will provide copies to all counsel. Rulings by the Claims Administrator will be final and binding, except that a Claimant is allowed to appeal a denial of a claim directly to the Court.
5. The Claims Administrator will send a Notice of Claim Approval (“Notice of Claim Approval”) to each approved claimant promptly but in no event later than one week after the Court grants final approval of the settlement.
6. A claimant who used a different name at booking must present documentation establishing that he or she is the person referred to in the booking records.
7. The Claims Administrator will review each opt out/exclusion form and notify the class member in writing that the form was received timely and that the class member has been excluded from participating in the class action settlement and the claims administrator will provide copies to all counsel.
VIII. EXPENSES AND ATTORNEYS FEES 1. Administrative costs, including the Claims Administrator’s fees and expenses,
will be paid from the Settlement Fund. 2. Class counsel will ask the Court to approve payment of Plaintiff’s attorneys
fees and out-of-pocket costs in the amount of thirty percent (30%) of the settlement fund. These fees and costs shall be paid at the same time as the distribution of the Settlement
13

Fund to class members. In addition, class counsel will ask the Court to deduct from the settlement funds an amount sufficient to pay the costs of further litigation and the expenses of claims administration. The parties understand that the Court shall have the discretion to award whatever fees and costs it deems justified based upon the submissions by the class counsel in support of those fees and costs. IX. DISTRIBUTION TO CLASS MEMBERS
1. Class counsel recommends to the Court that the Claims Administrator pay bonuses from the Settlement Fund to compensate the class representative for the time that he spent on this case and his loss of privacy as a result of serving as a Class Representative. Class counsel also recommends a bonus to compensate the 19 class members whose depositions were taken by defense counsel for the time they spent. Class counsel recommends a bonus of $5,000.00 to the class representative of record as of the date of the final approval of this settlement. Class counsel recommends a bonus of $500.00 to each of the 19 class members who were deposed by the Defendants. These checks will be issued at the same time as payments to class members.
2. Class members will receive payment from the common fund after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants.
3. The Claims Administrator will calculate the amount of money due each class member by providing one share for every class member with an approved claim. The Claims Administrator will total the number of approved shares and then divide the
14

amount remaining in the Settlement Fund (after the payments made as provided in Paragraph 2 above) by the number of shares to determine the amount each approved participating class member will receive.
4. Class members will receive one payment even if they were booked into the jail and strip searched more than one time during the class period.
5. Each class member’s check will be made payable only in his or her name or, upon the death of a class member, to the personal representative of the deceased class member’s estate or the person filing an affidavit in compliance with the Maine Procedure for Collection of Personal Property by Affidavit of the Rightful Heir under 18-A M.R.S.A. § 3-1201, or the equivalent procedure of the law of another state that governs the estate of the deceased class member. A check will be mailed to the class member at their mailing address or it may be picked up. Any change of address request must be made in writing and must be signed by the claimant.
6. If a participating class member is confined in a prison, hospital or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the class member makes other acceptable arrangements in writing with the Claims Administrator. X. POST-DISTRIBUTION ADMINISTRATION
1. Marshall and Ilsley Bank, a nationally chartered bank, will prepare all Forms 1099 for class members who receive a settlement check during the bank’s next regular tax-form processing following distribution. The Claims Administrator will prepare all
15

other necessary tax forms relating to the Settlement Fund account. 2. The Claims Administrator will provide a report to the Court and to counsel for
all parties accounting for the distribution of settlement funds, including attorneys fees and expenses, once the distribution is complete.
3. Any balance in the settlement fund after all settlement checks have been distributed and all bonuses, expenses, and attorneys fees have been paid and will be distributed under the Cy Pres doctrine on order of the Court. The parties understand that the Court shall have the discretion to order Cy Pres distribution based upon the submissions by the class counsel in support of such distribution. XI. DECEASED CLASS MEMBERS
1. If a class member is deceased, an authorized representative may file a Settlement Claim Form on behalf of the estate within the Claims Deadline, i.e. postmarked no later than February 12, 2007. However, the representative must provide to the Claims Administrator within the Claims Deadline documentation that an estate has been established in accordance with the law and with Paragraph IX (5), above. XII. RELEASE AND AGREEMENT TO DEFEND, INDEMNIFY AND HOLD HARMLESS
1. In consideration of the settlement amount, all Defendants, including individual defendants in both their official and individual capacities, and the Maine County Commissioners Association Self-Funded Risk Management Pool will be released from all liability for the class members’ claims for unlawful strip searches that were part of this
16

lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed an individual lawsuit within the applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that this release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross-gender searches, or searches which were observed by persons other than the correctional officer performing the search. The parties further agree that their settlement does not release any other claims, such as wrongful arrest, excessive force, or searches that were not part of the admission process (such as strip searches after a lockdown).
2. In further consideration of payment of the settlement amount, each class member shall be obligated to satisfy all liens, subrogation interests or claims of any doctor, hospital, insurance carrier, state or governmental agency, or any other person, firm, or corporation, which have been made or may in the future be made against the payment to that class member described herein, or against any Defendant, arising out of the claims, demands, actions or causes of action set forth in the First Amended Complaint and released as part of this Settlement Agreement. Each class member further agrees to hold harmless and to defend and indemnify the Defendants, including their officers, officials, employees, attorneys, agents, or any of them, to the fullest extent possible, from
17

and for any claims, demands, actions, causes of action, suits, judgments, costs or expenses of any kind, brought by that class member as a result of any search within the scope of this class action as certified by the Court in any orders approving this Settlement Agreement, whether or not the class member actually made a claim, except any class member who opted out of the settlement. XIII. EXHIBITS
The following exhibits are attached to this Agreement and Exhibits A, B and G will be mailed to Claimants and posted on the website (www.knoxcountyjailclass.com) as part of the notice process:
Exhibit A - Notice of Settlement Exhibit B - Settlement Claim Form; Exhibit C - Notice of Settlement to be published in newspaper; Exhibit D - Press release; and Exhibit E - documents regarding Analytics, Inc., the proposed Claims Administrator Exhibit F – Postage Paid envelope Exhibit G – Opt Out/Exclusion Form

Dated: December 15, 2006

/s/ Sumner Lipman Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051
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Dated: December 15, 2006 Dated: December 15, 2006 Dated: December 15, 2006 Dated: December 15, 2006 Dated: December 15, 2006

Augusta, ME 04332-1051
/s/ Robert Stolt Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051
/s/ Dale Thistle Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953
/s/ Peter Marchesi Peter T. Marchesi, Esq. Attorney for Defendants Wheeler & Arey, P.A. 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376
/s/ John J. Wall, III John J. Wall, III, Esq. Attorney for Defendants Monaghan Leahy LLP P.O. Box 7046 Portland, Maine 04112-7046
/s/ George Dilworth George Dilworth, Esq. Attorney for Defendant Davey McCloskey Mina & Cunniff LLC 12 City Center
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Portland, ME 04101-4006
20

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

CERTIFICATE OF SERVICE

I hereby certify that on December 15, 2006 I electronically filed the Final

Settlement Agreement With the Clerk of Court using the CM/ECF System, which will

send notification of such filing(s) to the following:

Peter Marchesi, Esq.- pbear@wheelerlegal.com;

George Dilworth, Esq.–tdilworth@lawmmc.com;

John Wall - jwall@monaghanleahy.com

Dale F. Thistle-dthistle@verizon.net;

Sumner H. Lipman – slipman@lipmankatzmckee.com

William Robitzek – wrobitzek@bermansimmons.com

and all other counsel of record.

I hereby certify that on December 15, 2006, I mailed the above-mentioned

documents by U.S. Postal Service to the following non-registered participant(s):

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None. Dated: December 15, 2006

/s/ John J. Wall, III Robert J. Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee, P.A. P.O. Box 1051 Augusta, ME 04330 Bar No. 1406 (207) 622-7415

22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Dare v. Knox County Civil Action No. 02-251-PC
You could get a payment from a $3 million dollar class action settlement if you meet all of the following conditions:
1. You were held at the Knox County Jail during the period November 19, 1996 to December 31, 2004.
2. You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs, weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to Suspect possession of hidden contraband.
A strip search process is one in which you were required to remove all of your clothes while a corrections officer inspected and viewed your naked body. In some cases, the officer may have required you to either squat cough and open your mouth or expose your body cavity while a corrections officer inspected and viewed your naked body.
A federal Court authorized this notice. This is not a solicitation from a lawyer.
• A $3 million settlement has been proposed in a class action lawsuit about alleged illegal strip searches that took place when people were strip searched at the Knox County Jail while being held prior to trial.
• The settlement fund will pay cash to those who submit valid claims after deducting attorney’s fees, and the costs and expenses for this case.
• The settlement prohibits the Knox County Jail from continuing the policy, custom and practice of strip searching people held prior to trial, charged with crimes not involving drugs, weapons or a violent felony.
Your legal rights are affected if you act or do not act. Please Read this Notice Carefully
You are receiving this notice because records show that you may be a class member. To see if you qualify, you must submit a complete Settlement Claim Form, postmarked by February 12, 2007, to:
Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006
If you submit a claim form and qualify as a class member, you will share in this settlement. The amount of money you will receive depends on how many people submit claim forms. The money will be divided by the number of claims. Lawyers for the plaintiffs believe that over seven thousand people are eligible members of the Class.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
1

You have the right to opt out or request to be excluded from the settlement class. To do so, you must mail a written request to the Claims Administrator at Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006. Use the Opt Out/Exclusion form attached to this notice. To be valid your exclusion request must be received on or before February 12, 2007. Read the remaining paragraphs of this notice so that you fully understand what it means to opt out or exclude yourself from this settlement and what you have to do to be excluded.

THESE ARE YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

Submit a Claim Form This is the only way to get a payment. Remember: Claim Forms postmarked after February 12, 2007 will not be considered for payment.

Object

You must write to the Court explaining why you believe the settlement is not fair by February 12, 2007. Second, you must appear in Court at the Fairness Hearing on April 23, 2007. Third, you must also submit a claim form.

Do Nothing

You get no payment. You will still be bound by the settlement and you give up your right to sue the defendant on these claims later.

Opt Out/Exclusion

You get no payment. You will not be bound by the settlement and you will keep your right to sue the Defendant on these claims, if the statute of limitations has not run on your claim.

THE SETTLEMENT BENEFITS – WHAT YOU GET AND HOW TO GET IT
How much will my payment be?
We do not know the amount of the payments. If you are eligible you will get a payment for only one strip search. The amount will depend on how many people submit claim forms. The amount per person will decrease as the number of forms submitted increases. Each participating person will receive an equal amount.
The settlement money will be distributed after payment of attorneys’ fees, expenses and bonuses. Counsel requests a 30% attorney’s fee, which includes all costs, expenses and disbursements. Class counsel requests payment of a bonus to the class representative and class members who were deposed to compensate them for the time they spent helping to bring about this settlement and for the loss of privacy to the class representative. The requested bonuses range from $500.00 for participating in a deposition to $5,000.00 for serving as class representative. The total amount of the requested bonuses is $14,500.00, less than 1% of the total settlement.
How can I get a payment?
You must fill out the Settlement Claim Form completely and mail it to the Claims Administrator. A Claim Form is included with this notice. You can also obtain a Claim Form from the Settlement Website at www.knoxcountyjailclass.com. The envelope must be postmarked no later than February 12, 2007; if it is not, your claim will be denied.

Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
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The settlement check will be written in your name with your social security number. Your check will be sent to your mailing address. If you move, you must notify the Claims Administrator in writing of your new address or the check will be sent to your old address.
When will I get my payment?
You cannot be paid until the settlement is approved by the Court and any appeals are over. The Court will hold a hearing on April 23, 2007, to decide whether to approve the settlement. If the Court approves the settlement and all appeals are completed promptly, you should receive your settlement check by June 1, 2007, unless there are any unforeseen delays.
Will I have to pay taxes on my payment?
You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Claims Administrator will send you a 1099 Form. (If you have questions about backup withholding, Form W-9 or Form 1099, call your tax preparer or the IRS Information Reporting Program Customer Service Section, toll free at (866) 455-7438, 8:30 am to 4:30 p.m., Monday through Friday.)
What should I do if I do not want to participate in the class action?
If you do not wish to participate in the class action, do nothing. If you do not send in a claim form you will not be a participating Class Member and you will not receive a payment. You will also be barred from filing a case on these claims in the future.
WHO IS IN THE SETTLEMENT
What is a Class Action and who are Class Members?
In a class action, one or more people, called Class Representatives (in this case, Dale Dare), sued on behalf of all people who have similar claims. All of the people who were similarly treated are known as the Class or Class Members. One court resolves the issues for all Class Members.
How do I know if I am a Class Member and part of the settlement?
The Court has ruled that you are a Class Member if you meet all four factors below:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004. 2. You were held at Knox County Jail after an arrest but before a bail hearing or first court
appearance. This includes arrests on default and other warrants. 3. You were not charged with a crime involving drugs or weapons or a violent felony. 4. You were strip searched before a first court appearance or while awaiting bail.
NOTE: You are not a class member if you were either (1) strip searched while you were serving a sentence, (2) you were strip searched after an evaluation which determined there was reason to suspect possession of hidden contraband., or (3) you were arrested for and/or charged with a crime involving drugs, weapons or a violent felony.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

What crimes are considered to be violent felonies?
The following crimes are violent felonies: aggravated assault, arson, assault on an officer, criminal restraint, elevated aggravated assault, gross sexual assault, kidnapping, manslaughter, murder, rape, and robbery. This list is non-exclusive, and other felony level crimes may be determined to be “violent”.
What if I was arrested for more than one crime?
The most serious charge for an arrest will determine your class membership. If any one of the charges was a crime involving weapons or drugs or was a violent felony, you are not a class member for that arrest. You might be eligible for another arrest.
What if I was arrested on a default warrant of violation of probation or parole?
You are a class member if you were arrested on a default or other warrant or for violating the terms of probation or parole so long as the crime for which you were on probation did not involve weapons, or rugs, or a violent felony.
Who makes the final decision about who qualifies as a Class Member?
The Class Administrator makes the final decision about who qualifies as a Class Member subject to Court review. The booking records kept by the Knox County Jail will help determine if you are a class member. You can help by listing the date or dates when you feel you met the class definition. If the records do not show that you fit the class definition, your claim will be denied. You can appeal your denial to the claims administrator by sending documentation and information regarding the dates you believe you were held and strip searched. A decision by the Claims Administrator can be appealed to the Judge. (If you are not a class member, you are not bound by this settlement. You can take action as an individual if you wish.)
What if I was arrested and strip searched more than once, can I still participate?
Yes. If you were arrested and brought to the Jail more than once during the class period you are a member of the class and can recover money. You can only recover one payment, however, as you will not be provided with extra payments if you were arrested and strip searched at the jail more than one time.
What if I was at the jail on or before November 18, 1996 or after December 31, 2004?
The time period for being a class member is based on the legal requirement that a case must be filed within a certain time period; this is called the statute of limitations. The law in Maine only allows a person to bring a claim within six years after his or her rights were violated. Because this case was filed on or about November 19, 2002, class members include anyone strip-searched in the six years before that date. If you were strip-searched on or before November 18, 1996, it may be too late to bring a lawsuit. The time period for the class ends on December 31, 2004. If you were strip-searched after this date, that search is not a part of this lawsuit; you must file your own lawsuit.
What if I was found not guilty of the crime for which I was arrested?
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
4

You are entitled to the same settlement amount whether you were found guilty or not guilty of the crime.
What if I am still unsure about whether I am part of the settlement?
If you are still unsure as to whether you are a member of the class, you may fill out and return the Settlement Claim Form. If the settlement is approved, you will be notified if you do not qualify. If you qualify you will receive a check. You may also visit the settlement website on the Internet at www.knoxcountyjailclass.com or call (877) 797-5732 to speak to a Settlement Administrator or Class Counsel to answer your questions.
How did the lawyers in this case find me and how can I protect my privacy?
After you were arrested, you gave your name and address at the Knox County Jail during booking. This information was given to the lawyers for the plaintiffs by Knox County pursuant to a court order. The lawyers for the plaintiffs will do everything they can to protect your privacy. Only the lawyers in the case and the Court appointed Claims Administrator will know your name and, in most cases, only the Claims Administrator will see your Claim Form.
THE COURT’S FAIRNESS HEARING
What is a Fairness Hearing?
The Court will hold a hearing to decide whether to approve the settlement. The Court will consider whether the settlement is fair, reasonable and adequate. The Court will also decide whether to approve the request for attorney’s fees, costs, expenses and the bonuses to class representatives. If the Court approves the proposed settlement, it will affect all class members.
When and where is the hearing?
The Hearing will be held on April 23, 2007 at 10:00 a.m. in the U.S. District Court of Maine, 156 Federal Street, Portland, ME.
Do I have to come to the hearing?
Class counsel will answer any questions the Court may have. You are welcome to come at your own expense. If you object to the settlement and you want to explain the objection to the Court you can attend the hearing or hire your own lawyer to attend for you.
May I or my lawyer speak at the hearing?
Yes, but only if you or your lawyer filed a written objection before the hearing.
OBJECTING TO THE SETTLEMENT
What if I think the proposed settlement is not fair? What can I do?
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

If you wish to object to the proposed settlement, you must state your objections to the Court in a letter sent to the Dare Settlement Claims Administrator, postmarked by February 12, 2007. The Claims Administrator will forward your objection to the Court and to the lawyers for the plaintiffs and for Knox County. If you want to explain the written objection to the court you, or a lawyer on your behalf, can appear in the U.S. District Court of Maine, 156 Federal Street, Portland, ME on April 23, 2007 to present your objections.
You may object to the proposed settlement and still be eligible to receive a payment. You must submit a valid Settlement Claim Form even if you object to the settlement, if you wish to claim money should the settlement be approved.
THE LAWYERS IN THIS CASE
Who are the lawyers in this case?
The lawyers for the plaintiffs are Robert Stolt, Esq., and Sumner Lipman, Esq., Lipman, Katz & McKee, 227 Water Street, P.O. Box 1051, Augusta, ME 04332-1051, and Dale Thistle, Esq., 103 Main Street, P.O. Box 160, Newport, ME 04953.
Defendant Knox County is represented by attorney Peter Marchesi, Wheeler and Arey, P.A., 27 Temple Street, PO Box 376, Waterville, ME 04901, and John J. Wall, III, Monaghan Leahy LLP, 95 Exchange Street, PO Box 7046, Portland, ME 04112-7046.
How will the plaintiffs’ lawyers be paid?
The lawyers for the plaintiffs will request that the Court award an attorney’s fee of 30% of the settlement fund, which will include out-of-pocket costs.
OPTING OUT
How do I opt out if I don’t want to be a member of the class, but want to pursue my claims in my own lawsuit?
If you wish to opt out of this class action to pursue your own claim against Knox County, you may do so by completing an “OPT OUT/EXCLUSION FORM” and submitting it on or before February 12, 2007 to the Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006. You can obtain an Opt Out/ Exclusion form from the Claims Administrator at the above address, by calling the Claims Administrator toll free at 1-877-797-5732 or by downloading an Opt Out/Exclusion form at the internet website at www. Knoxcountyjailclass.com. To be valid, the form must be postmarked by February 12, 2007.
OTHER INFORMATION
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
6

If you wish to view the Court file or a copy of the proposed settlement agreement, you may go to the Clerk of the U.S. District Court of Maine, 156 Federal Street, Portland, ME during regular business hours. You can also view the settlement papers on the web at www.knoxcountyjailclass.com. To obtain more information or ask questions about the settlement, you can call the Claims Administrator toll-free at (877) 797-5732 ; write to the Claims Administrator at Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006; or visit the Internet website at www.knoxcountyjailclass.com. On the website you will find answers to frequently asked questions, a downloadable claim form, plus additional information that may help you determine if you are a Class Member.
Important – Please do not call the Court directly with questions about the settlement.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Dare v. Knox County Civil Action No. 02-251-PC
You could get a payment from a $3 million dollar class action settlement if you meet all of the following conditions:
1. You were held at the Knox County Jail during the period November 19, 1996 to December 31, 2004.
2. You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs, weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to Suspect possession of hidden contraband.
A strip search process is one in which you were required to remove all of your clothes while a corrections officer inspected and viewed your naked body. In some cases, the officer may have required you to either squat cough and open your mouth or expose your body cavity while a corrections officer inspected and viewed your naked body.
A federal Court authorized this notice. This is not a solicitation from a lawyer.
• A $3 million settlement has been proposed in a class action lawsuit about alleged illegal strip searches that took place when people were strip searched at the Knox County Jail while being held prior to trial.
• The settlement fund will pay cash to those who submit valid claims after deducting attorney’s fees, and the costs and expenses for this case.
• The settlement prohibits the Knox County Jail from continuing the policy, custom and practice of strip searching people held prior to trial, charged with crimes not involving drugs, weapons or a violent felony.
Your legal rights are affected if you act or do not act. Please Read this Notice Carefully
You are receiving this notice because records show that you may be a class member. To see if you qualify, you must submit a complete Settlement Claim Form, postmarked by February 12, 2007, to:
Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006
If you submit a claim form and qualify as a class member, you will share in this settlement. The amount of money you will receive depends on how many people submit claim forms. The money will be divided by the number of claims. Lawyers for the plaintiffs believe that over seven thousand people are eligible members of the Class.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
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You have the right to opt out or request to be excluded from the settlement class. To do so, you must mail a written request to the Claims Administrator at Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006. Use the Opt Out/Exclusion form attached to this notice. To be valid your exclusion request must be received on or before February 12, 2007. Read the remaining paragraphs of this notice so that you fully understand what it means to opt out or exclude yourself from this settlement and what you have to do to be excluded.

THESE ARE YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

Submit a Claim Form This is the only way to get a payment. Remember: Claim Forms postmarked after February 12, 2007 will not be considered for payment.

Object

You must write to the Court explaining why you believe the settlement is not fair by February 12, 2007. Second, you must appear in Court at the Fairness Hearing on April 23, 2007. Third, you must also submit a claim form.

Do Nothing

You get no payment. You will still be bound by the settlement and you give up your right to sue the defendant on these claims later.

Opt Out/Exclusion

You get no payment. You will not be bound by the settlement and you will keep your right to sue the Defendant on these claims, if the statute of limitations has not run on your claim.

THE SETTLEMENT BENEFITS – WHAT YOU GET AND HOW TO GET IT
How much will my payment be?
We do not know the amount of the payments. If you are eligible you will get a payment for only one strip search. The amount will depend on how many people submit claim forms. The amount per person will decrease as the number of forms submitted increases. Each participating person will receive an equal amount.
The settlement money will be distributed after payment of attorneys’ fees, expenses and bonuses. Counsel requests a 30% attorney’s fee, which includes all costs, expenses and disbursements. Class counsel requests payment of a bonus to the class representative and class members who were deposed to compensate them for the time they spent helping to bring about this settlement and for the loss of privacy to the class representative. The requested bonuses range from $500.00 for participating in a deposition to $5,000.00 for serving as class representative. The total amount of the requested bonuses is $14,500.00, less than 1% of the total settlement.
How can I get a payment?
You must fill out the Settlement Claim Form completely and mail it to the Claims Administrator. A Claim Form is included with this notice. You can also obtain a Claim Form from the Settlement Website at www.knoxcountyjailclass.com. The envelope must be postmarked no later than February 12, 2007; if it is not, your claim will be denied.

Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
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The settlement check will be written in your name with your social security number. Your check will be sent to your mailing address. If you move, you must notify the Claims Administrator in writing of your new address or the check will be sent to your old address.
When will I get my payment?
You cannot be paid until the settlement is approved by the Court and any appeals are over. The Court will hold a hearing on April 23, 2007, to decide whether to approve the settlement. If the Court approves the settlement and all appeals are completed promptly, you should receive your settlement check by June 1, 2007, unless there are any unforeseen delays.
Will I have to pay taxes on my payment?
You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Claims Administrator will send you a 1099 Form. (If you have questions about backup withholding, Form W-9 or Form 1099, call your tax preparer or the IRS Information Reporting Program Customer Service Section, toll free at (866) 455-7438, 8:30 am to 4:30 p.m., Monday through Friday.)
What should I do if I do not want to participate in the class action?
If you do not wish to participate in the class action, do nothing. If you do not send in a claim form you will not be a participating Class Member and you will not receive a payment. You will also be barred from filing a case on these claims in the future.
WHO IS IN THE SETTLEMENT
What is a Class Action and who are Class Members?
In a class action, one or more people, called Class Representatives (in this case, Dale Dare), sued on behalf of all people who have similar claims. All of the people who were similarly treated are known as the Class or Class Members. One court resolves the issues for all Class Members.
How do I know if I am a Class Member and part of the settlement?
The Court has ruled that you are a Class Member if you meet all four factors below:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004. 2. You were held at Knox County Jail after an arrest but before a bail hearing or first court
appearance. This includes arrests on default and other warrants. 3. You were not charged with a crime involving drugs or weapons or a violent felony. 4. You were strip searched before a first court appearance or while awaiting bail.
NOTE: You are not a class member if you were either (1) strip searched while you were serving a sentence, (2) you were strip searched after an evaluation which determined there was reason to suspect possession of hidden contraband., or (3) you were arrested for and/or charged with a crime involving drugs, weapons or a violent felony.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

What crimes are considered to be violent felonies?
The following crimes are violent felonies: aggravated assault, arson, assault on an officer, criminal restraint, elevated aggravated assault, gross sexual assault, kidnapping, manslaughter, murder, rape, and robbery. This list is non-exclusive, and other felony level crimes may be determined to be “violent”.
What if I was arrested for more than one crime?
The most serious charge for an arrest will determine your class membership. If any one of the charges was a crime involving weapons or drugs or was a violent felony, you are not a class member for that arrest. You might be eligible for another arrest.
What if I was arrested on a default warrant of violation of probation or parole?
You are a class member if you were arrested on a default or other warrant or for violating the terms of probation or parole so long as the crime for which you were on probation did not involve weapons, or rugs, or a violent felony.
Who makes the final decision about who qualifies as a Class Member?
The Class Administrator makes the final decision about who qualifies as a Class Member subject to Court review. The booking records kept by the Knox County Jail will help determine if you are a class member. You can help by listing the date or dates when you feel you met the class definition. If the records do not show that you fit the class definition, your claim will be denied. You can appeal your denial to the claims administrator by sending documentation and information regarding the dates you believe you were held and strip searched. A decision by the Claims Administrator can be appealed to the Judge. (If you are not a class member, you are not bound by this settlement. You can take action as an individual if you wish.)
What if I was arrested and strip searched more than once, can I still participate?
Yes. If you were arrested and brought to the Jail more than once during the class period you are a member of the class and can recover money. You can only recover one payment, however, as you will not be provided with extra payments if you were arrested and strip searched at the jail more than one time.
What if I was at the jail on or before November 18, 1996 or after December 31, 2004?
The time period for being a class member is based on the legal requirement that a case must be filed within a certain time period; this is called the statute of limitations. The law in Maine only allows a person to bring a claim within six years after his or her rights were violated. Because this case was filed on or about November 19, 2002, class members include anyone strip-searched in the six years before that date. If you were strip-searched on or before November 18, 1996, it may be too late to bring a lawsuit. The time period for the class ends on December 31, 2004. If you were strip-searched after this date, that search is not a part of this lawsuit; you must file your own lawsuit.
What if I was found not guilty of the crime for which I was arrested?
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
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You are entitled to the same settlement amount whether you were found guilty or not guilty of the crime.
What if I am still unsure about whether I am part of the settlement?
If you are still unsure as to whether you are a member of the class, you may fill out and return the Settlement Claim Form. If the settlement is approved, you will be notified if you do not qualify. If you qualify you will receive a check. You may also visit the settlement website on the Internet at www.knoxcountyjailclass.com or call (877) 797-5732 to speak to a Settlement Administrator or Class Counsel to answer your questions.
How did the lawyers in this case find me and how can I protect my privacy?
After you were arrested, you gave your name and address at the Knox County Jail during booking. This information was given to the lawyers for the plaintiffs by Knox County pursuant to a court order. The lawyers for the plaintiffs will do everything they can to protect your privacy. Only the lawyers in the case and the Court appointed Claims Administrator will know your name and, in most cases, only the Claims Administrator will see your Claim Form.
THE COURT’S FAIRNESS HEARING
What is a Fairness Hearing?
The Court will hold a hearing to decide whether to approve the settlement. The Court will consider whether the settlement is fair, reasonable and adequate. The Court will also decide whether to approve the request for attorney’s fees, costs, expenses and the bonuses to class representatives. If the Court approves the proposed settlement, it will affect all class members.
When and where is the hearing?
The Hearing will be held on April 23, 2007 at 10:00 a.m. in the U.S. District Court of Maine, 156 Federal Street, Portland, ME.
Do I have to come to the hearing?
Class counsel will answer any questions the Court may have. You are welcome to come at your own expense. If you object to the settlement and you want to explain the objection to the Court you can attend the hearing or hire your own lawyer to attend for you.
May I or my lawyer speak at the hearing?
Yes, but only if you or your lawyer filed a written objection before the hearing.
OBJECTING TO THE SETTLEMENT
What if I think the proposed settlement is not fair? What can I do?
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

If you wish to object to the proposed settlement, you must state your objections to the Court in a letter sent to the Dare Settlement Claims Administrator, postmarked by February 12, 2007. The Claims Administrator will forward your objection to the Court and to the lawyers for the plaintiffs and for Knox County. If you want to explain the written objection to the court you, or a lawyer on your behalf, can appear in the U.S. District Court of Maine, 156 Federal Street, Portland, ME on April 23, 2007 to present your objections.
You may object to the proposed settlement and still be eligible to receive a payment. You must submit a valid Settlement Claim Form even if you object to the settlement, if you wish to claim money should the settlement be approved.
THE LAWYERS IN THIS CASE
Who are the lawyers in this case?
The lawyers for the plaintiffs are Robert Stolt, Esq., and Sumner Lipman, Esq., Lipman, Katz & McKee, 227 Water Street, P.O. Box 1051, Augusta, ME 04332-1051, and Dale Thistle, Esq., 103 Main Street, P.O. Box 160, Newport, ME 04953.
Defendant Knox County is represented by attorney Peter Marchesi, Wheeler and Arey, P.A., 27 Temple Street, PO Box 376, Waterville, ME 04901, and John J. Wall, III, Monaghan Leahy LLP, 95 Exchange Street, PO Box 7046, Portland, ME 04112-7046.
How will the plaintiffs’ lawyers be paid?
The lawyers for the plaintiffs will request that the Court award an attorney’s fee of 30% of the settlement fund, which will include out-of-pocket costs.
OPTING OUT
How do I opt out if I don’t want to be a member of the class, but want to pursue my claims in my own lawsuit?
If you wish to opt out of this class action to pursue your own claim against Knox County, you may do so by completing an “OPT OUT/EXCLUSION FORM” and submitting it on or before February 12, 2007 to the Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006. You can obtain an Opt Out/ Exclusion form from the Claims Administrator at the above address, by calling the Claims Administrator toll free at 1-877-797-5732 or by downloading an Opt Out/Exclusion form at the internet website at www. Knoxcountyjailclass.com. To be valid, the form must be postmarked by February 12, 2007.
OTHER INFORMATION
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
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If you wish to view the Court file or a copy of the proposed settlement agreement, you may go to the Clerk of the U.S. District Court of Maine, 156 Federal Street, Portland, ME during regular business hours. You can also view the settlement papers on the web at www.knoxcountyjailclass.com. To obtain more information or ask questions about the settlement, you can call the Claims Administrator toll-free at (877) 797-5732 ; write to the Claims Administrator at Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006; or visit the Internet website at www.knoxcountyjailclass.com. On the website you will find answers to frequently asked questions, a downloadable claim form, plus additional information that may help you determine if you are a Class Member.
Important – Please do not call the Court directly with questions about the settlement.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

 
 UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES, COST OF LITIGATION AND EXPENSES OF SETTLEMENT ADMINISTRATION
NOW COME counsel for Plaintiffs to move the Court to award attorney’s fees of 30% of the Three Million Dollar ($3,000,000.00) settlement fund, reimbursement of $178,561.41 in litigation expenses and all claims administrative expenses, presently estimated at $35,000.00, incurred in administering the settlement. I. Procedural History
Plaintiffs filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted Plaintiffs’ motion for class certification and certified this case as a class action under Fed.R. Civ. P 23 (b) (3). The class was defined as follows:

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All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) After having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) While waiting for bail to be set up on charges that did not involve a weapon, drugs, or a violent felony; or
(3) While waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) After having been arrested on a warrant at that did not involve a weapon, drugs, or a violent felony. (See Docket Item No. 21)
The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit, Tardiff vs. Knox County, 365 F.3d 1 (1st Cir. 2004).
Plaintiffs alleged that all arrestees or pretrial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of a booking procedure. The defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements.
This case has been in litigation since November, 2002. Partial Summary Judgment was granted to the plaintiffs on November 2, 2005. The Court ordered a small rollback of the Partial Summary Judgment in April of 2006 requiring Plaintiffs to prove
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an unconstitutional custom and practice for class members strip-searched between September 2002 and December 2004. A trial, originally scheduled to begin April 1, 2006, was postponed until May 1, 2006 and then to October 3, 2006. The parties, like the famed the light brigade, charged into summer with no thought to what September would bring. The parties interviewed, deposed, motioned and strategized fiercely aiming for the killer strike that would put them a leg up and demoralize the other side. On September 5, 2006 court decertified the class with respect to damages, disqualified all witnesses, shredded all exhibits and denied all motions. The parties retreated, seeking shelter in the chambers of Chief Judge Singal. On September 29 Chief Judge Singal brought the battle to a close through an all day Judicial Settlement Conference.1 Following instructions of Chief Judge Singal to prepare a final written agreement using the Second Amended Agreement approved in Nilsen v. York County, (02-CV-212-P.-H.), the parties began the process while hammering out that final agreement. On December 18, 2006 the Court rewarded the parties' efforts by approving preliminarily the Third Final Settlement Agreement. (Docket Item No.: 378). II. SUMMARY OF SETTLEMENT TERMS
The Settlement reached by the parties secures a remarkable recovery for class members. Under the settlement, the Defendants have created a settlement fund of $3 million dollars from which payments to class members, class representatives, class counsel, and the Claims Administrator will be made. This is an extraordinary outcome
1 The parties had previously attempted to mediate the dispute with the assistance of former Maine Supreme Judicial Court Chief Justice Daniel Wathen. The two days spent with the Chief Justice Wathen brought focus to the parties' perceptions but did not resolve the case.
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for the Class because approximately 366 class members will share in a fund which will pay them significantly more than they might have received had they gone individually to trial.
Under the terms of the settlement agreement, each class member who timely submits a completed and signed claim form postmarked no later than February 12, 2007, will, if his claim is approved, receive a payment from the common fund (after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants) calculated on the basis of one share for every class member with an approved claim. Class members wishing to opt out of the settlement are required to file a properly executed to opt-out form on or before February 12, 2007.
In the terms of the settlement agreement, a portion of the settlement fund shall be used, subject to Court approval, to pay the cost of administering the settlement as well as a plaintiffs attorneys fees and expenses. Class counsel hereby apply to the Court for an award of attorney's fees in the amount of $900,000.00 (which represents 30% of the settlement fund of 3 million), for reimbursement of $178,561.41in expenses, and for $35,0002 to cover the estimated Cost of Administering the Settlement.
The settlement agreement also provides for an incentive award in the amount of $5,000 for the class representative of record as of the date of the Final Approval of the
2 Analytics initial estimate of claims administrative expenses was $35,000.00 (see Exhibit B, Motion for Attorney’s Fees , Cost Of Litigation And Expenses Of Settlement Administration), class counsel had paid Analytics $8,684.33 and have another invoice in transit in the amount of $21,933.37, for a total to date of $30,617.70 in claims administration expenses. Analytics will provide an updated estimate of the expenses expected to be necessary to close out the claims administration phase of this case.
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settlement and a $500 bonus for each of the 20 class members who were deposed by the defendants.
The Settlement Agreement will completely settle and resolve this class action. Unless a class member opted out by the timely submission of a valid opt-out form, the settlement will fully bind all members of the class. As the settlement agreement provides: "in consideration of the settlement amount, all defendants,... will be released from all liability for the class members’ claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed an individual lawsuit within the applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that this release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross- gender searches, or searches which were observed by persons other than the correctional officer performing the search. The parties further agree that their settlement does not release any other claims, such as wrongful arrest, excessive force, or searches that were not part of the admissions process (such as strip searches after a lockdown).”
Class members have been notified of the settlement pursuant to the Notice Plan approved by the Court in its Order granting preliminary approval of the settlement
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(Docket item No. 376-2). First, a Notice Package consisting of a Notice of Class Action Settlement and of the Hearing to Approve the Settlement ("Notice of Settlement"), a Settlement Claim Form, a Frequently Asked Questions sheet and an Opt-Out Form, by first-class mail postage prepaid to all potential class members, whose addresses are known to Class Counsel at their last known address within three weeks after the Court Order granting preliminary approval. Second, creation of a website, www knoxcountyjailclass.com, where Notice of Settlement and the Settlement Claim Form and the Opt-Out Form are available for downloading from the website or on request to the Claims Administrator including through a toll-free number. Third, publication of the Notice of Settlement twice in the Portland Press Herald, Rockland Courier Gazette and the Bangor Daily News. Fourth, posting the Notice of Settlement in the Knox County Jail. Fifth, the issuance of a press release detailing preliminary approval of the settlement, how to obtain the appropriate Claims and Opt-Out Forms, the dead-line for filing and Notice of the date and time of the Final Fairness Hearing. Sixth, by letter dated March 30, 2007, sent by first class mail, postage prepaid to all 366 approved class members, class counsel again notified all class members of the Fairness Hearing scheduled before the Court on April 23, 2007 at 10:00 a.m. and conveyed to all class members complete copies of Plaintiffs Motions for Final Settlement Approval and for Award of Attorney’s Fees, Litigation Expenses and Administrative Costs. III. ATTORNEY’S FEES
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Class counsel respectively request the Court award attorney’s fees in the amount of $900,000.00, an amount equal to 30% of the principal amount of the settlement fund of $3,000,000.00 (Three Million Dollars).
A. Legal Standards An attorney’s fees award in a class action from a common settlement fund is authorized by F.R. Civ. P. 23(h) and Rule 54(d)(2). “A litigant with a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Company v. Van Gemert, 444 U.S. 472, 478 (1980). Class counsel have pursued the Defendants in this case on behalf of the Plaintiff class to assert and recover for the violation of certain rights and privileges guaranteed under the United States Constitution and Section 1983 of Title 42 of the United States Code. It is well established that common fund principles may be applied when actions instituted under statutes containing fee-shifting provisions are resolved by settlement. See In Re: Compact Disc Minimum Advertised Price AntiTrust Litigation, 216 F.R.D. 197, 216 (D. Me. 2003). It is also well established that the common fund doctrine is founded on the equitable principle that those who have profited from the litigation should share in its cost. See In Re: Thirteen Appeals Arising Out of The San Juan Dupont Plaza Hotel Fire Litigation, 56 Fed.3d 295, 305 N.6 (1st Cir. 1995). In this case class counsel ask the Court to apply the percentage of fund method to calculate reasonable attorney’s fees in this case. The percentage of fund method is the method preferred in this District and in this Circuit. See In Re: Compact Disc and San
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Juan Dupont Plaza Hotel, supra. See also the Settlement Agreement between the parties dated September 29, 2006. (Docket Item No.: 366).
In that agreement: “The parties … agree[d] to settle this case in exchange for Defendants establishing a common fund of Three Million Dollard ($3,000,000.00), said amount to include all attorney’s fees and costs incurred, as well as all claims administration expenses. The parties agree that counsel for Plaintiff will seek to recover 30% of this fund to cover their fees and costs.”
“Plaintiffs’ counsel is certainly free to ask for 30% of the common fund for its own attorney’s fee and costs and separately seek to have the claims administration fees paid from the fund. The Court indicated that the ultimate decision on fees and expenses would be made by Judge Carter.” See Docket Item No. 333.
Another approach is the Loadstar method, which multiplies the number of hours the attorneys have expended by their hourly rates to create a “Loadstar” figure. Class counsel does not request a Loadstar calculation because (1) the First Circuit uses the percentage of fund method; and (2) fair application of the Loadstar method would result in an attorney’s fee award which would take a significantly larger bite out of the common fund and thus dilute the individual shares each class member can be expected to receive under the percentage of fund calculation advocated.
Federal Courts have increased hourly rates (“Loadstar Fees”) by multiples of three or four (or more) to account for considerations such as the risk undertaken, the quality of the services rendered, the results achieved, and the delay in receipt of payment. See, for
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example, In Re: Rite Aid Corp. Securities Litigation, 146 Fed. Supp. 706, 736 N. 44 (E. D. Pa. 2001) (Finding “a Loadstar multiple in the range of 4.5 to 8.5” to be “unquestionably reasonable”); Vranken v. Altantic Richfield Company, 901 Fed. Supp. 294, 298-299 (N.D. Cal. 1995) (applying a multiple of 3.6 and noting that “multiples in the 3-4 range are common in Loadstar awards for lengthy and complex class action litigation”); Beahrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988), Aff’d. 899 Fed.2d 21 (11th Cir. 1990) (“The range of Loadstar multiples in large and complicated class actions runs from a low of 2.26 to a high of 4.5”). This Court has endorsed the Loadstar multiplier concept, see In Re: Compact Disc, 216 F.R.D. at 216, as has the First Circuit. See Weinberger v. Great Northern Nekossa Corp., 925 Fed.2d 518, 529 (1st Cir. 1991) (“[T]he Loadstar calculation … will be subject to possible enhancement … by the Court if it determines that a multiplier … should be applied.”). The fee requested here by contrast, is less than class counsel’s actual Loadstar figure.
Class counsel submits that the hours expended on this case, while substantial, are entirely reasonable and reflect the challenging nature of the lawsuit and the unwaivering commitment to achieving a successful result . Every reasonable effort was made to avoid unnecessary duplication or repetition of task, and where appropriate, work was assigned to paralegals.3 Given the complexity of the claims and defenses, the real risk of non-
3 Paralegal time is included in the Loadstar calculation at market billing rates and should be adjusted using the risk multiplier, since such time is subject to the same contingent risk as attorney time. See Missouri v. Jenkins, 491 U.S. 274, 287 (1989) “[I]f a prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the Court refused to compensate hours billed by paralegals and did so only at ‘cost’”. Sula v. National R. Passenger Corp, 128 F.R.D. 210, 216 (E.D. PA 1989).
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recovery, a substantial delay in receipt of payment, the exceptional result achieved and the experience and skill of class counsel, class counsel submit that a fee of $900,000.00 is (30% of the gross common fund) fair and reasonable compensation for their work. If the Court used a Loadstar method and applied a low multiplier such as 2.26 referenced in Behrens, supra at 549, It would reverse the economic positions of class counsel and class members. Class counsel advocate that the Court preserve $2,000,000.00 (Two Million Dollars) of the common fund of to pay the class representative incentive award of $5,000.00, the 20 class member bonus awards of $500.00 and distribute the remaining $1,985,000.00 equally to class members who have filed approved claims.
Class counsel advocates that the Court fashion a reasonable fee and pay class counsels’ litigation expenses and the claims administration fees out of the third million dollars of the common fund plus accrued interest on the fund.
There are a number of factors that are generally considered when determining that a fee award is fair, adequate and reasonable. Class Counsel have discussed several of those factors in their Motion for Final Settlement Approval, to wit: reaction of the class; stage of litigation, quality of class counsel, conduct of negotiations, and fairness adequacy and reasonableness of the notice plan. Also to be considered are the results achieved, the nature and complexity of the litigation; the size of the settlement fund; the risk of non-recovery; and the use of the Loadstar method as a cross check. And while there are many factors to consider, “… [t]he ultimate goal to be achieved by the reviewing Court is to award fees which are adequate to attract competent counsel and yet
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not so large that they result in a windfall. Wells v. Dartmouth Bancorp, Inc., 813 Fed.
Supp. 126, 127-28 (D. New Hampshire, 1993).
Judge Hornby echoes these sentiments in his analysis of the application of the
percent of fund approach in Nilsen v. York County, _____ F.Supp. ____ Civil No. 02-
212-P-H, November 10, 2005, at Pages 5 and 6:
Making a fair fee award from a common fund in a class action settlement is a difficult determination for a Judge. There are no adversarial presentations to test the fee claim, and our legal system does not ordinarily expect Judge’s to behave as inquisitors, gathering testimony and collecting information on their own. Presented with an unopposed request, therefore, I depend upon my own analysis and secondary research – against a backdrop of popular dissatisfaction with large and highly publicized fees. Third Circuit Task Force Report, selection of class counsel, 208 F.R.D. 340, 343-44 (2002) (“2002 Task Force Report”) (“[T]here is a perception among a significant part of the non-lawyer population … that class action Plaintiffs’ lawyers are overcompensated for the work that they do.”). But the lawyers here are highly skilled and experienced civil rights attorneys. Their professional performance was exemplary; they represented the class members’ interest zealously, achieving an excellent result for the class under the circumstances. For these reasons they deserve a reasonable fee that duly recognizes their professional excellence and performance and provides an appropriate incentive for lawyers to take on future meritorious cases on behalf of the client class. f.n. 10. At the same time, they do not deserve a windfall at the expense of the class and I do not want the size of the award to encourage frivolous litigation that benefits primarily lawyers.”
f.n. 10. “[T]he Court must also be careful to sustain the incentive for attorneys to continue to represent such clients on an ‘inescapably contingent’ basis.” Florin v. Nations Bank of Georgia, (Florin 2), 60 F3d 1245, 1247 (7th Cir. 1995).
B. Multi-factor Analysis
1. Extraordinary result achieved.
11

Class counsel have achieved a remarkable recovery for class members. The creation of a settlement fund of Three Million Dollars ($3,000,000.00) constitutes an extraordinary outcome for the class because each class member (366 in all) stand to recover in excess of $5,000.00 for their “dignity” injuries. The amount of the Settlement Fund is also extraordinary given the complicated insurance issues, the complexity of the case and the aggressive defense and attorney time necessary to bring the case to conclusion. Defendants had a combination of self-pay, risk pool and residual coverage. Each dollar that the Defendants consumed in paying their attorneys to defend the case or to pay other liability claims against Knox County was one dollar less that the Defendants had available to fund the settlement in this case. The defense left no stone unturned, no issue unexplored and no argument left for later use. They were steadfast in their denial and persistent in their argument. Every issue that they lost, they raised in reconsideration and through their persistence achieved some success in rolling back the scope of custom and practice liability on Summary Judgment. Had the parties gone to trial on individual damages, the economics alone would have been a disaster. Under the circumstances the Three Million Dollar ($3,000,000.00) fund was an extraordinary outcome for the class.
2. Modest Absolute Size of the Fund Although a typical fee award in a class action settlement is in the neighborhood of 30%, see In Re: Rite Aid Corp. Securities Litigation, 146 F.Supp. 2nd at 745, this figure masks an unmistakable pattern of fee awards getting smaller (in percentage terms) as settlement amounts get larger. See In Re: NASDAQ Market-Makers Anti-Trust
12

Litigation, 187 F.R.D. 465 (486 S.D. New York 1998). See also Nilsen, supra at Pages 25 to 26.
The number of class members benefited here is smaller in comparison to the number of people benefited in the York County case. There are several explanations for this disparity. First, the parties estimates were that between 400 and 1,500 class members would actually file claims; These estimates were based upon national statistics for class action participation and strip search class action participation in particular; Second, the claimants in Nilsen, (about 1,000 class claimants) are said to have received about $1,200.00 per person; Third, the newspapers widely published the Department of Health and Human Services efforts to capture many of those claims through their Child Support Enforcement Unit; Fourth, the desire to remain anonymous both with respect to acknowledging an arrest and to avoid exposure of being strip searched; and Fifth, concern that filing a claim and recovering would rile the police and expose the claimant to further harassment. While none of these issues is scientific, many class members have raised them at one or more points in the litigation and during the claims process. Many scoffed at the amount of money that they might receive based on what they had read and heard following the York County settlement. Others were embarrassed that they might be exposed and anxious over the thought that there might be some police retribution.
3. Quality of Representation Class Counsel have over 80 years of combined trial experience in all of the trial courts in the State of Maine and in the Federal Appellate Courts, First Circuit Court of
13

Appeals and the United States Supreme Court. Class Counsel have tried civil and criminal cases, including complex civil matters ranging through Federal Civil Rights, employment law, product liability, financial and medical malpractice.
4. The complexity and duration of the litigation. This case has been going on for almost five (5) years. There has been extensive discovery, extensive Motion practice, and appeal to the First Circuit Court of Appeals where the Court affirmed this Court’s class action certification. The case was also prepared for trial and scheduled for trial beginning October 3, 2006. Had the case not settled on September 29, 2006, counsel would have appeared before the Court on October 3rd, prepared and ready to try the remaining issues of liability and then to move onto individual issues of damages. Despite having narrowly defined the issues for trial, there were significant factual disputes as to custom and practice liability as to class members detained at the jail between September, 2002 and December 31, 2004 and as to whether some claimants detained within that time period, were, in fact, strip searched. Decertification of the class added additional complexity to the individualized damages, the nature and scope of the emotional harm caused by the affront to dignity, including inappropriate exposure to members of the opposite sex, impermissible touching and strip search of minors. Even though the class was certified and the certification affirmed by the First Circuit Court of Appeals in Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004), Knox County repeatedly challenged the certification and avowed that it would challenge
14

the class certification on future appeals and also challenge the underlying the premises that any individual has a constitutional right of privacy in the jail setting.
5. Risk of Non-Payment Class Counsel’s fees in this case were totally contingent. There were substantial risks to non-payment ranging from the County’s inability to pay through its factual and legal challenges to the constitutional claims of the class members. There was also a serious risk that a jury would have no sympathy for a person arrested on any charge, no matter how trivial, and strip searched when brought to the jail. There was also a serious risk that a jury would believe the testimony of corrections officers over the detainees, especially where the detainees frequented the jail. Even assuming liability, there were serious risks that a jury would not award damages to individuals offended by the strip search but who suffered no physical or economic harm. Class Counsel devoted more than 5,0004 hours of legal effort over the span of the case and expended more than $169,000.00, exclusive of settlement claims administration costs, to prosecute the case and to obtain the Three Million Dollar ($3,000,000.00) Settlement Fund. The individual claims of class members could not have been pursued except through the class action mechanism. The individual claims were too small and the individual parties financial resources too limited to warrant the substantial out-of-pocket expenditures on attorney’s fees and costs to obtain legal representation. For a contingent fee representation to make economic sense for an attorney, the risk of receiving no fee
4 Plaintiffs’ Counsel expended more than 4,000 hours over two years in the York County case which is some evidence that class counsel here were efficient in their work on behalf of class members expending slightly over 5,000 hours in more than a four-year period.
15

whatsoever if the litigation is unsuccessful, must be offset by the possibility of earning a sufficient fee in the event of a favorable outcome to justify the time, effort and expense necessary to pursue the claim to the end. Even then, especially in the class action setting, the Court must determine that the award requested is reasonable under the circumstances of the case. Loadstar provides a method of cross checking and even though the Loadstar cross check is easy to apply in this case because class counsels’ Loadstar fee exceeds the percentage of fund request made by class counsel, application of Loadstar under the circumstances of this case would result in an unfair fee award.
IV. LITIGATION COSTS Class counsel respectfully requests reimbursement of their litigation costs and expenses in the amount of $178,561.41 ($8,684.33 of this amount represents payment to the Settlement Claims Administrator for claims administration expenses). A table of disbursements is attached to this Motion as Exhibit B to Class Counsels’ Affidavit filed in support of this Motion. The large amounts expended for experts were especially critical to evaluating the computerized data produced by the Defendants, identifying potential claimants, verifying the unconstitutional policies, customs and practices of the jail, determining the scope of potential damages and verifying the blanket strip search behavior of the guards through individual contact with the class claimants. While expensive, the database proved invaluable. Class Counsel continue to use the database to verify the validity of claims. Other significant costs were fees paid to other attorneys to brief the class certification issues on the First Circuit Appeal. Those services were
16

instrumental in gaining the Appellate Court’s affirmation of this Court’s class

certification decision.

V. CONCLUSION

For the foregoing reasons, class counsel respectfully request that the Court award

them $900,000.00 as reasonable attorney’s fees and $178,561.41 in litigation expenses in

the prosecution of this litigation and further award sufficient sums to pay the cost of

settlement claims administration.

Dated: March 30, 2007

/s/ Sumner Lipman Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: March 30, 2007

/s/ Robert Stolt Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: March 30, 2007

/s/ Dale Thistle Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953

17

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

AFFIDAVIT OF LIPMAN, KATZ & MCKEE, P.A. AND DALE F. THISTLE, ESQ. IN SUPPORT OF CLASS COUNSELS’ MOTION FOR ATTORNEY’S
FEES, COST OF LITIGATION AND EXPENSES OF SETTLEMENT ADMINISTRATION
I, Robert J. Stolt, first being duly sworn, do hereby depose and say: 1. I have personal knowledge of the facts set forth in this Affidavit. I am a member of the law firm of Lipman, Katz & McKee, P.A. and co-class counsel with Sumner H. Lipman, Esq. of my firm and Dale F. Thistle, Esq., Law Office Dale F. Thistle, in the above-captioned class action. 2. I make this Affidavit in support of Class Counsel’s Motion for Award of Attorney’s Fees, Cost of Litigation and Expenses of Settlement of Administration. The time expended in preparing the Motion and this Affidavit is not included.

3. Class Counsels’ compensation for the services rendered is fully contingent. Any fees and reimbursement expenses will be limited to such amounts as may be awarded by the Court. The original class representative agreed to a fee not to exceed 40% of the gross recovery.
4. During the period from the inception of the case on September 4, 2002 through February 26, 2007, class counsel performed 5,237.2 hours of work in connection with the prosecution of this class action. Based upon hourly rates charged in similar matters, the Loadstar value of the time is $936,236.00. Attached hereto as Exhibit A is a chart which indicates the attorneys and paralegals who worked on this case, their total hours by category, their hourly rates and their respective Loadstar values.
5. A detail itemization of the services rendered by Class Counsel, during the period for which fees are sought is available for the Court’s review upon request.
6. During the period from the inception of the case through March 30, 2007 Class Counsel incurred expenses in the sum of $169,885.08 in connection with this litigation and $8,684.33 in connection with Claims Administration of the Settlement for a total to date of $178,569.41. These expenses were reasonable and necessarily incurred in connection with this litigation and settlement claims administration and are set forth in Exhibit B. The expenses incurred are reflected on the books and records of Class Counsel. These books and records are prepared from checks, expense vouchers and invoices which are regularly kept and maintained by both firms and accurately reflect the expenses incurred.

7. The role of Class Counsel in this litigation has been as follows: We served as counsel for the class, and in that capacity participated in all aspects of the litigation and the settlement process. Our duties as class counsel included the following:
1. Investigated facts, research legal issues and prepared pleadings, discovery requests, responses and pre-trial motions and responses.
2. Worked on Motion for Class Certification, defended the Certification of the Class on appeal, filed for and obtained partial summary judgment on issues of the liability; prepared the case for trial, prepared and responded to appropriate Motions in Limine, Witness List, Exhibit List, Voir Dire, Jury Instructions and other documents filed with the Court.
3. Planned and organized the computerized discovery process and worked to resolve discovery disputes.
4. Coordinated and executed document review. 5. Prepared for and participated in the mediation conducted by former Maine Supreme Judicial Court Chief Justice Daniel Wathen, Esq. 6. Prepared for and participated in the Judicial Settlement Conference conducted by Chief Judge George Z. Singal. 7. Prepared for and participated in hearings and conferences with the Court. 8. Prepared and filed Motions for Preliminary Approval of the Settlement. 9. Prepared and filed Notice documents, claims forms and, opt out forms and other documents necessary to inform and notify potential class members of the settlement, their options in participating in or opting out of the settlement and notification

of class members of the date of the Fairness hearing by the Court for April 23, 2007 at

10:00 a.m.

10. Responded to inquires from class members and the public regarding the

settlement.

11. As Counsel for the class, we also performed other tasks too numerous and

varied to set forth here. This work entailed extensive communication with the Court,

among co-counsel, appellate counsel and attorney’s representing the Defendants.

12. Class Counsel in conjunction with filing their Motion for Attorney’s Fees,

Cost of Litigation and Expenses of Settlement Administration and Plaintiffs’ Motion for

Final Settlement Approval have served 366 approved class members with Notice of the

Fairness Hearing scheduled for April 23, 2007 together with individual copies of

Plaintiffs’ Motion for Final Settlement Approval and Class Counsel’s Motion for

Attorney’s Fees, Cost of Litigation and Expenses of Settlement Administration, attached

hereto as Exhibit C.

13. Attached hereto as Exhibit D is information taken from the Lipman, Katz &

McKee, P.A. website and Martindale Hubble regarding co-class counsel Sumner H.

Lipman and Robert J. Stolt; information regarding co-counsel Dale F. Thistle and that

portion of the Lipman, Katz & McKee, P.A. website relating to the Knox County Class

Action.

Dated: March 30, 2007

__s/Robert J. Stolt_____ Robert J. Stolt

State of Maine Kennebec, ss.

Dated: March 30, 2007

Personally appeared before me the above-named Robert J. Stolt and stated that the facts set forth in the Affidavit are based upon his own personal knowledge swore to the truth of the foregoing statements.

Dated: March 30, 2007

___s/Jan N. Bellfleur Name: Jan N. Bellfleur Title: Notary Public My Comm. Exp. 8/29/13

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

AFFIDAVIT OF LIPMAN, KATZ & MCKEE, P.A. AND DALE F. THISTLE, ESQ. IN SUPPORT OF CLASS COUNSELS’ MOTION FOR ATTORNEY’S
FEES, COST OF LITIGATION AND EXPENSES OF SETTLEMENT ADMINISTRATION
I, Robert J. Stolt, first being duly sworn, do hereby depose and say: 1. I have personal knowledge of the facts set forth in this Affidavit. I am a member of the law firm of Lipman, Katz & McKee, P.A. and co-class counsel with Sumner H. Lipman, Esq. of my firm and Dale F. Thistle, Esq., Law Office Dale F. Thistle, in the above-captioned class action. 2. I make this Affidavit in support of Class Counsel’s Motion for Award of Attorney’s Fees, Cost of Litigation and Expenses of Settlement of Administration. The time expended in preparing the Motion and this Affidavit is not included.

3. Class Counsels’ compensation for the services rendered is fully contingent. Any fees and reimbursement expenses will be limited to such amounts as may be awarded by the Court. The original class representative agreed to a fee not to exceed 40% of the gross recovery.
4. During the period from the inception of the case on September 4, 2002 through February 26, 2007, class counsel performed 5,237.2 hours of work in connection with the prosecution of this class action. Based upon hourly rates charged in similar matters, the Loadstar value of the time is $936,236.00. Attached hereto as Exhibit A is a chart which indicates the attorneys and paralegals who worked on this case, their total hours by category, their hourly rates and their respective Loadstar values.
5. A detail itemization of the services rendered by Class Counsel, during the period for which fees are sought is available for the Court’s review upon request.
6. During the period from the inception of the case through March 30, 2007 Class Counsel incurred expenses in the sum of $169,885.08 in connection with this litigation and $8,684.33 in connection with Claims Administration of the Settlement for a total to date of $178,569.41. These expenses were reasonable and necessarily incurred in connection with this litigation and settlement claims administration and are set forth in Exhibit B. The expenses incurred are reflected on the books and records of Class Counsel. These books and records are prepared from checks, expense vouchers and invoices which are regularly kept and maintained by both firms and accurately reflect the expenses incurred.

7. The role of Class Counsel in this litigation has been as follows: We served as counsel for the class, and in that capacity participated in all aspects of the litigation and the settlement process. Our duties as class counsel included the following:
1. Investigated facts, research legal issues and prepared pleadings, discovery requests, responses and pre-trial motions and responses.
2. Worked on Motion for Class Certification, defended the Certification of the Class on appeal, filed for and obtained partial summary judgment on issues of the liability; prepared the case for trial, prepared and responded to appropriate Motions in Limine, Witness List, Exhibit List, Voir Dire, Jury Instructions and other documents filed with the Court.
3. Planned and organized the computerized discovery process and worked to resolve discovery disputes.
4. Coordinated and executed document review. 5. Prepared for and participated in the mediation conducted by former Maine Supreme Judicial Court Chief Justice Daniel Wathen, Esq. 6. Prepared for and participated in the Judicial Settlement Conference conducted by Chief Judge George Z. Singal. 7. Prepared for and participated in hearings and conferences with the Court. 8. Prepared and filed Motions for Preliminary Approval of the Settlement. 9. Prepared and filed Notice documents, claims forms and, opt out forms and other documents necessary to inform and notify potential class members of the settlement, their options in participating in or opting out of the settlement and notification

of class members of the date of the Fairness hearing by the Court for April 23, 2007 at

10:00 a.m.

10. Responded to inquires from class members and the public regarding the

settlement.

11. As Counsel for the class, we also performed other tasks too numerous and

varied to set forth here. This work entailed extensive communication with the Court,

among co-counsel, appellate counsel and attorney’s representing the Defendants.

12. Class Counsel in conjunction with filing their Motion for Attorney’s Fees,

Cost of Litigation and Expenses of Settlement Administration and Plaintiffs’ Motion for

Final Settlement Approval have served 366 approved class members with Notice of the

Fairness Hearing scheduled for April 23, 2007 together with individual copies of

Plaintiffs’ Motion for Final Settlement Approval and Class Counsel’s Motion for

Attorney’s Fees, Cost of Litigation and Expenses of Settlement Administration, attached

hereto as Exhibit C.

13. Attached hereto as Exhibit D is information taken from the Lipman, Katz &

McKee, P.A. website and Martindale Hubble regarding co-class counsel Sumner H.

Lipman and Robert J. Stolt; information regarding co-counsel Dale F. Thistle and that

portion of the Lipman, Katz & McKee, P.A. website relating to the Knox County Class

Action.

Dated: March 30, 2007

__s/Robert J. Stolt_____ Robert J. Stolt

State of Maine Kennebec, ss.

Dated: March 30, 2007

Personally appeared before me the above-named Robert J. Stolt and stated that the facts set forth in the Affidavit are based upon his own personal knowledge swore to the truth of the foregoing statements.

Dated: March 30, 2007

___s/Jan N. Bellfleur Name: Jan N. Bellfleur Title: Notary Public My Comm. Exp. 8/29/13

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, individually, and )

on behalf of others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

KNOX COUNTY, et al.,

)

)

Defendants.

)

Civil No. 02-251-P-C

PLAINTIFF'S MOTION FOR APPROVAL OF NOTICE TO THE CLASS

Plaintiffs move this Court to approve notice of class certification under Fed.R.Civ.P. 23(b)(3) as required by Rule 23(c)(2)(B). Plaintiffs propose that individual notice be mailed to identified potential class members, if and when, Plaintiffs are able to generate a list of potential class members for the time period from November 19, 1996 forward. Further, in order to increase the likelihood of reaching the maximum possible number of potential class members, and because development of a mailing list seems unlikely, Plaintiffs propose additional notice by publication in three (3) newspapers, by radio, by local cable and off-air television, by press release and publicity, and by notice posted at the booking desk of the Knox County Jail. As grounds for this motion, Plaintiffs state the following:
1. Plaintiffs obtained available computerized booking data from the Knox County Sheriff's Department for a portion of the time period of November, 1996 through June, 2004. See Affidavit of Robert J. Stolt at Paragraphs 2 and 8. Plaintiffs are working to construct this data into a Microsoft Access database. Id at Paragraph 4.

2. The raw data retrieved from the jail was produced to the Defendant. Id at Paragraph 3. This data is a complete copy of the data obtained at the Jail by Plaintiff's computer experts and the "Excel files" previously provided to Plaintiffs by Defendants.
3. Since obtaining the electronic data, my office, including Keith Varner, Esq., Spencer Tracy, other members of the firm's staff and me, in conjunction with our computer consultants, has worked diligently to organize, sort and transfer the data obtained into a Microsoft Access Database. In organizing and transferring the data all of the original data fields and data tables have been preserved.
4. My office staff has had great difficulty in sorting and organizing the data because many of the database fields were either not completed or completed inaccurately by jail data entry employees. The information we retrieved from the jail had been entered initially in an extremely incomplete and haphazard manner.
5. Staff members of my office are currently working to validate and verify the electronic records by cross-checking each record of arrest, booking, housing, release, intake and identity in the data sets. This includes comparing the Spillman data with data obtained earlier in discovery. This earlier discovery consists of Microsoft Excel apparently randomly saved by Corrections Sergeant Costigan. The databases we are working with contain more than 300,000 lines of data. Each line must be individually examined to be either attached to the appropriate detainee or removed from the data set.
6. The data and records maintained by the jail have several significant time period gaps. As an example, there are no paper or electronic records for March, June and July, 1997 or for August, September, October, November and December 1998. There are no electronic records for the periods May through November 2001 and May through August 2002. There are few records for the period August 2002 to March 2003. The gaps in the electronic records may be able to be filled by paper records, but search of the paper records is an arduous process.
2

7. The data screening and organizing process has been made more difficult because of the poor quality of the data. The initial databases created at the Knox County Jail are incomplete, inaccurate, inconsistent, incoherent and, in many cases, incomprehensible. My office staff members have spent many hours trying to match and validate entries. We have reached the limit of our ability to refine the data electronically. We are now manually "scrubbing" the data to produce a reasonable list of class members.
8. All of my office staff members, to some degree, have been engaged in this scrubbing process. I anticipate that the production of a partially complete, useable database of some class members with reasonably correct identifiers and reasonably accurate arrest, booking, housing and release data will take many weeks if it can be produced at all.
9. After the data has been scrubbed, Plaintiffs propose to send individual notice by mail to all identifiable potential class members at the addresses recorded in the booking data provided by the Jail. Plaintiff is uncertain that booking data provided by the Jail will result in a usable mailing list of potential class members. A copy of the proposed notice designed to be sent by mail to potential class members, if any, identified by the electronic booking data, is attached to this motion as Exhibit A. Class counsel drafted the Notice to include "plain English" answers to likely questions of class members as required by the 2003 amendment to Rule 23. The website address on the notice will be changed to provide the correct address once the domain name is secured by class counsel. See Exhibit A at Paragraph 16. Plaintiffs propose to make the deadline for potential class members to file notices of exclusion 90 days from the date the individual notices are mailed. See id at 12.
10. Additional notice is necessary to reach the maximum possible number of potential class members and because development of a mailing list seems unlikely.
3

11. Plaintiffs propose posting a notice at the booking desk of the Knox County Jail. The proposed notice is attached as Exhibit B. Plaintiffs will provide the Defendants with an 11 x 14 version of this notice to be posted in a location that is visible to detainees during the booking process. Plaintiffs will also provide 500 copies on standard 8 ½ x 11 paper, which can be given out on request. Plaintiffs will replenish this supply on request. The 11 x 14 notice should remain posted for at least six months unless the Court orders a different time period.
12. Plaintiffs propose publishing a notice in three local newspapers. The proposed notice by publication is attached as Exhibit C. Plaintiffs propose that this notice be published three times each in the Times Record; The Courier Gazette; and The Camden Herald.
13. Plaintiffs further propose publishing a notice by advertising, press releases and publicity over local radio and television via local cable and off-air broadcast.
14. This case has received some publicity in local newspaper articles and on local radio and television broadcasts. These media publicity reports have generated some direct contact between some potential class members and class counsel. The individual notice will be mailed to those people and to any others who contact class counsel in the future, if they appear to meet the class definition.
15. This notice is filed in conjunction with Plaintiffs' motion, contemporaneously filed, for an "order in aid of identification of class members". Here, Plaintiffs ask the court to approve the concept of Plaintiffs proposal for class notification subject to identification of class members pursuant to Plaintiffs proposed order on its motion for "order in aid of identification of class members".
WHERFORE, Plaintiffs move this Court to approve the notice plan and the attached notices of the Court's class certification decision pursuant to Fed.R.Civ.P. 23(c)(2)(B).
4

Dated: September 15, 2004
RESPECTFULLY SUBMITTED, the Plaintiffs, individually and on behalf of all others similarly situated, By their attorneys,

!"

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/ 3 dthistle@midmaine.com

David M. Hoffman, Esq. 15A New England Avenue, PO Box 554 Summit, NJ 07901 (908) 608-0333 E-Mail: dhoffman@david-hoffman-esq.com

Frank Diprima, Esq. 41 Constitution Way Morristown, NJ 07960 (973) 656-0251 E-Mail: Diprimalaw@aol.com

5

UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, individually, and

)

on behalf of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

Civil No. 02-251-P-C

)

KNOX COUNTY, et al.,

)

)

Defendants.

)

AFFIDAVIT OF ROBERT J. STOLT I, Robert J. Stolt, first being duly sworn, do hereby depose and say as follows: 1. I am an attorney in good standing in the State of Maine and in the Commonwealth of Massachusetts and a principal in the law firm of Lipman, Katz and McKee, P.A., 227 Water Street, Augusta, Maine 04330. I am one of the attorneys for the Plaintiff above named and I am duly authorized to execute this Affidavit. 2. On July 8, 9 and 14, 2004, computer consultants retained by my firm, accompanied by Keith R. Varner, Esq. and Spencer Tracy, Legal Assistant, of my firm, obtained arrest, booking, housing, release and other data for all detainees booked into the Knox County Jail from November 19, 1996 through June, 2004 from computerized records maintained by the Knox County Sheriff's Department. Included in the electronic records obtained were databases used by the Knox County Jail and Knox County Sheriff in conjunction with proprietary law enforcement software manufactured by Spillman Technologies, Inc. (hereinafter "Spillman"). Also obtained were Microsoft Excel records and numerous other computer files and records. 3. A complete copy of all records obtained has been provided by my office to Defendants' attorney, Peter T. Marchesi.

6

4. Since obtaining the electronic data, my office, including Keith Varner, Esq., Spencer Tracy, other members of the firm's staff and me, in conjunction with our computer consultants, has worked diligently to organize, sort and transfer the data obtained into a Microsoft Access Database. In organizing and transferring the data all of the original data fields and data tables have been preserved.
5. My office staff has had great difficulty in sorting and organizing the data because many of the database fields were either not completed or completed inaccurately by jail data entry employees. The information we retrieved from the jail had been entered in an extremely incomplete and haphazard manner.
6. Staff members of my office are currently working to validate and verify the electronic records by cross-checking each record of arrest, booking, housing, release, intake and identity in the data sets. This includes comparing the Spillman data with data obtained earlier in discovery. This earlier discovery consists of Microsoft Excel apparently randomly saved by Corrections Sergeant Costigan. The databases we are working with contain more than 300,000 lines of data. Each line must be individually examined to be either attached to the appropriate detainee or removed from the data set.
7. To date we have incurred expenses in excess of $63,000 in our effort to organize the data into a coherent and useable form. This amount does not include attorney and staff time.
8. The data and records maintained by the jail have several significant time period gaps. As an example, there are no paper or electronic records for March, June and July, 1997 or for August, September, October, November and December 1998. There are no electronic records for the periods May through November 2001 and May through August 2002. There are few records for the period of August 2002 to March 2003. The gaps in the electronic records may be able to be filled by paper records, but search of the paper records is an arduous process.
9. The data screening and organizing process has been made more difficult because of the poor quality of the data. The initial databases created at the Knox County Jail are incomplete,
7

inaccurate, inconsistent, incoherent and, in many cases, incomprehensible. My office staff members have spent many hours trying to match and validate entries. We have reached the limit of our ability to refine the data electronically. We are now manually "scrubbing" the date to produce a reasonable list of class members.

Dated: September 15, 2004

/S/ Robert J. Stolt Robert J. Stolt, Esq.

State of Maine Kennebec, ss.

Dated: September 15, 2004

Personally appeared before me the above-named Robert J. Stolt and swore to the truth of the foregoing statements.

Dated: September 15, 2004

/S/ Kris A. Barron Notary Public
My Commission Expires:12/17/2008

8

Exh A to Mot4App

YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT

DO NOTHING UNTIL FURTHER NOTICE

Stay in this lawsuit. Await the outcome. Give up certain rights. By doing nothing, you keep the possibility of getting money or benefits from a trial or a settlement of this case. But, you give up any right to sue

Knox County separately about the legal claims in this

case. If this case settled, you will need to submit a timely

claim form. You must keep class counsel informed if you

change your mailing address.

ASK TO BE EXCLUDED

Get out of this lawsuit. Get no benefits from it. Keep rights. If you ask to be excluded and money or benefits are later awarded, you won't share in those. But, you keep

your rights to sue Knox County separately about the same

legal claims in this lawsuit. To be excluded, your Notice

of Exclusion must be received by the Claims

Administrator by ____________________, 20___.

BASIC INFORMATION

1. Why did I get this notice?

After you were arrested, you gave your name and address during booking at the jail. As part of the lawsuit, the County gave this booking information to the lawyers for the plaintiffs. From this information, it appears that you may be a class member. This is not an assurance that you are a class member.

2. What is this case about?

The plaintiffs claim that the Knox County Jail's strip search process is an illegal strip-search of people in the class. A strip-search is a visual inspection or focused look at a person's naked body. Plaintiffs say that during the strip search, people being admitted to the Jail are routinely strip searched by officers during the intake process. The officers require people to expose their body cavities and to squat and cough to expel items hidden in the body. Plaintiffs are seeking money damages for every person who was strip searched and a new policy providing people with privacy while they change into a jail uniform.

3. What is Knox County's defense?

Knox County defends the suit by denying any liability, and asserting that all searches that are the subject of the suit were constitutionally conducted, and that no persons searched were damaged by any such search.

4. What is a class action?

Exh A to Mot4App

In a class action, one or more people, called "class representatives", sue on behalf of other people who have similar claims. All of the people with claims are called plaintiffs. Knox County, which is being sued, is the Defendant. The court will resolve the common issues for everyone in the class. The lawyers representing the class are called "class counsel.".
5. What are the requirements to be in the class?

The Court has allowed the lawsuit to be on behalf of all those people who, between November 19, 1996 and December 31, 2004, were strip-searched at the Knox County Jail while waiting for bail to be set or for a first court appearance after being arrested on charges that did not involve a weapon or drugs or a violent felony.

6. What is a "violent felony"?

The term "violent felony" is a Class A or B crime involving the use, attempted use, or threatened use of force, or a substantial risk that use of force may be used, to cause injury to another person or property. Examples of violent felonies include murder, manslaughter, rape, sexual assault, aggravated assault, kidnapping, burglary, robbery and arson.

7. Are all strip-searches in jail illegal?

There are times when correctional officers can legally strip-search a prisoner. This case does not claim that all strip-searches at the jail were illegal. Plaintiffs claim that the intake searches of people who were held before a first court appearance were illegal. This case does not concern strip-searches for cause or on return from work release. This case does not challenge any strip-searches of convicted prisoners.

8. Is there any money available now?

No. This case has not settled. The Court has not decided whether the County did anything wrong.

9. How many people are there in this class action?

Lawyers for the plaintiffs estimate that there are several thousand persons eligible for class membership.

10. Do I have a lawyer in this case?

Exh A to Mot4App The Court has decided that attorneys Sumner Lipman and Robert Stolt of Lipman, Katz & McKee, P.A., Post Office Box 1051, 227 Water Street, 2nd Floor, Augusta, Maine 04330, and Dale Thistle of The Law Offices of Dale F. Thistle, 103 Main Street, Post Office Box 160, Newport, Maine 04953-0160, may represent all of the class members. They are referred to as "class counsel". They are experienced in handling civil rights cases.
For more information on these lawyers, you can view their firm web site at: www.lipmankatzmckee.com.
11. Should I get my own lawyer?
You do not need to hire your own lawyer because class counsel is working on your behalf. If you want your own lawyer, you can hire one. If you want to bring your own case, you must ask to be excluded from the class action and file your own case. To file a case, you should hire your own lawyer.
12. Why would I ask to be excluded?
If you want to bring your own case, you must ask to be excluded, also called "opting out" of the class action. Then you will not receive any money or other benefits from this case. However, you will not be legally bound by any judgment in this case. If you plan to file your own lawsuit for the illegal strip-search, you should exclude yourself. You will then need to retain a lawyer or enter a pro se appearance if you wish to assert your rights. You should consult a lawyer soon because once you are excluded, the statute of limitations will start to run. Your Notice of Exclusion should be sent to the Claims Administrator at Knox County Class Action, _____________________________. It must be received by __________________, 200____.
13. How will the lawyers be paid?
If Class Counsel wins money or benefits for the class, they will ask the Court to approve payment of attorney's fees and expenses. If the Court grants this request, the fees and expenses will either be deducted from the settlement fund or paid separately by Knox County.
14. What happens next?
The plaintiffs will seek information from the County and the County will seek information about the plaintiffs. There could be a trial. It is not known how long this will take. Counsel will need to contact you if there is a settlement or a trial. It is important that you send a written notice of any change of address to Knox County Class Action,

Exh A to Mot4App ________________________________. Please do not write to the Court directly. You should also inform the Post Office of your forwarding address.
15. What do I need to do in order to be part of this case?
To participate in this lawsuit, you do not have to do anything at this point except regularly receive and read your mail. If this case settles or a judgment is returned against the County, class counsel will need to contact you and you will have to return a form within a set time period.
In order to ensure that you are able to participate in any settlement or judgment, you must make sure that class counsel can reach you when it becomes necessary. If your address or telephone number changes, you must let the Class Administrator know this by sending written notice to: Knox County Class Action, _______________________________. Please do not write to the Court directly.
16. How can I get more information?
Visit the website at ___________________________.

Exh A to Mot4App
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Laurie Tardiff v. Knox County, et al. Civil Action No. 02-251-P-C
NOTICE OF CLASS ACTION
A court authorized this notice. This is not a solicitation from a lawyer.
• You may be a member of a class action against Knox County. The fact that you received this notice is not a guarantee that you are a member of the class. This notice is to inform you of the case and your legal rights.
• To be a class member you must meet all of the following requirements:
• Time: You were arrested between November 19, 1996 and December 31, 2004.
• Type of custody: You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
• Offense: The underlying offense for which you were arrested did not involve a weapon or drugs, and was not a violent felony.
• Search: You were required to go through a strip search process which took place before you were placed into a housing area or into a holding cell. A strip search process is one in which you were required to remove your clothes and either squat, cough, open your mouth and expose your body cavity while a corrections officer inspected and viewed your naked body.
• Without cause: If you were strip searched for cause, you are not in the class. An example of a stripsearch for cause is a strip-search after a corrections officer finds drugs or a weapon in a person's clothing or has a reason to expect to find hidden contraband.
• Plaintiffs claim that the strip search process at the Knox County Jail is an unconstitutional stripsearch. Plaintiffs claim that corrections officers routinely viewed and inspected people's naked bodies without having a valid reason to do so. A strip search process is one in which you were required to remove your clothes, and either squat, cough, open your mouth and expose your body cavity while a corrections officer inspected and viewed your naked body.
• Plaintiffs seek money damages from Defendant Knox County for the harm the strip searches caused to class members and a change in the practice.
• Knox County defends this suit by denying any liability, and asserting that all searches that are the subject of the suit were constitutionally conducted, and that no persons searched were damaged by any such search.
• The Court has not yet decided whether Knox County did anything wrong.
Any questions? Read on for more information.

ExhB2Mot4App
KNOX COUNTY JAIL STRIP-SEARCH LAWSUIT
Laurie Tardiff v. Knox County, et al. Civil Action No. 02-251-P-C
You may be a class member in a class action lawsuit which was certified by the Federal District
Court of Maine on behalf of current and former detainees at the Knox County Jail who:
(1) After November 19, 1996; (2) Were held in custody at the Knox County Jail before a bail hearing or a first court
appearance; and (3) Were not arrested for crimes involving drugs or weapons, or a violent felony; and (4) Were strip searched, without an evaluation to determine if there was a reason to suspect
possession of hidden contraband.
You must meet ALL of the above conditions to be a class member. You are not a class member if you were a convicted prisoner serving a sentence, or if you were strip-searched for cause, for example after an officer discovered drugs or contraband in your possession.
The plaintiffs say that the jail's strips search procedure is an illegal strip-search because jail officers did not have a valid reason for the search. The case seeks money damages for the plaintiffs and new policies to protect a detainee's privacy during intake.
Knox County denies the allegations. Knox County says that its officers did strip search detainees as a routine matter. The County says its officers were searching detainees' bodies for contraband. The County claims the officer had cause to do so.
The Court certified this case as a class action but the Court has not yet decided whether Knox County did anything wrong.
If you believe you are a class member, write to: Sumner H. Lipman, Lipman, Katz & McKee, P.A., P.O. Box 1051, 227 Water Street, 2nd Floor, Augusta, Maine 04332-1051. Explain why you believe you are a class member. Include your full name, an address and telephone number where you can be reached when you are released from the jail, and, if possible, the date you expect to be released. You will receive the full notice of the lawsuit.
To keep counsel informed of your address, write to: Knox County Class Action, ________________________________. Please include your name, date of birth, and social security number. Be sure to include an address where you can be reached when you are released from the jail.
ASK FOR A COPY OF THIS NOTICE – You are entitled to one!

ExhC2Mot4App
KNOX COUNTY JAIL STRIP-SEARCH LAWSUIT
Laurie Tardiff v. Knox County, et al. Civil Action No. 02-251-P-C
You may be a class member in a class action lawsuit which was certified by the Federal District Court of Maine on behalf of current and former detainees at the Knox County Jail if you meet ALL of the following conditions:
(1) You were held at the Knox County Jail between November 19, 1996 and December 31, 2004; and
(2) You were held in custody at the jail before a bail hearing or a first court appearance;
(3) You were not arrested for crimes involving drugs or weapons, or a violent felony; and
(4) You were strip-searched without an evaluation to determine if there was a reason to suspect possession of hidden contraband.
A strip search process is one in which you were required to remove all of your clothes, and either squat, cough, open your mouth and expose your body cavity while a corrections officer inspected and viewed your naked body.
You are not a class member if you were a convicted prisoner serving a sentence, or if you were strip-searched for cause, for example after an officer discovered drugs or contraband in your
possession.
If you believe you are a class member, write to:
Explain why you believe you are a class member. Include your full name, current address

ExhC2Mot4App
Knox County Jail Strip-Search Lawsuit
Laurie Tardiff v. Knox County, et al. Civil Action No. 02-251-P-C
You may be a member of this class action lawsuit if you meet ALL of the following conditions:
(1) You were held at the Knox County Jail after October 14, 1996; (2) You were held in custody at the jail before a bail hearing or a first court
appearance; (3) You were not arrested for crimes involving drugs or weapons, or a violent
felony; and (4) You were strip-searched without an evaluation to determine if there was a reason
to suspect possession of hidden contraband. You are not a class member if you were a convicted prisoner serving a sentence, or if you were strip-searched for cause, for example after an officer discovered drugs or contraband in your
possession.
If you believe you are a class member, write to:
Explain why you believe you are a class member. Include your full name, current address
`

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

LAURIE TARDIFF, Plaintiff
v.
KNOX COUNTY, DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff, and JANE DOE and JOHN DOE, in their individual capacities,
Defendants

Civil No. 02-251-P-C

Gene Carter, Senior District Judge ORDER APPROVING NOTICE TO CLASS
After considering the positions of the parties, the Court APPROVES that notice be given to the class as proposed by Plaintiffs in their amended Proposed Notice to Class Members (Docket Item No. 129) filed on August 16, 2005, except the language of the notice be amended as described in the paragraphs below.
With respect to the document entitled “Your Legal Rights and Options in this Lawsuit,” and designated as Exh A to Mot4App, the Court ORDERS that it state as follows:
2. What is this case about? The plaintiffs claim that the Knox County Jail's strip search process is an illegal strip-search of people in the class. A strip-search is a visual inspection of a person's naked body. Plaintiffs say that during the strip search, people being admitted to the Jail are routinely strip searched by officers during the intake

process. In some cases, the officers may have required people to expose their body cavities or to squat and cough to expel items hidden in the body. Plaintiffs are seeking money damages for every person who was strip searched and a new policy providing people with privacy while they change into a jail uniform.
6. What is a "violent felony"?
The term "violent felony" is a Class A, B or C crime involving the use, attempted use, or threatened use, of force, or a substantial risk that use of force may be used, to cause injury to another person or property. Examples of violent felonies include murder, manslaughter, rape, sexual assault, aggravated assault, kidnapping, burglary, robbery and arson.
7. Are all strip-searches in jail illegal?
There are times when correctional officers can legally strip-search a prisoner. This case does not claim that all strip-searches at the jail were illegal. Plaintiffs claim that the intake searches of people who were held before a first court appearance were illegal. This case does not concern strip searches for any inmate who is a convicted prisoner, or any inmate who has had the opportunity for contact with a person outside of the jail facility after having been admitted to the jail facility, or for any inmate who is returned to the jail from outside of the jail.
14. What happens next?
There could be a settlement or there could be a trial in the case. It is not known how long this will take. Counsel will need to contact you if there is a settlement or a trial. It is important that you send a written notice of any change of address to Knox County Class Action, ________________________________. Please do not write to the Court directly. You should also inform the Post Office of your forwarding address.
With respect to the document entitled “Notice of Class Action,” and designated as Exh A
to Mot4App, the Court ORDERS that the sixth bullet state as follows:
Search: You were required to go through a strip search process which took place before you were placed into a housing area or into a holding cell. A strip search process is one in which you were required to remove your clothes while a corrections officer inspected and viewed your naked body. In some cases, the officer may have required you to either squat, cough, and open your mouth or expose your body cavity while a corrections officer inspected and viewed your naked body.

With respect to the document entitled “Knox County Jail Strip-Search Lawsuit” and
designated as ExhC2Mot4App, the Court ORDERS that it state as follows:
You may be a class member in a class action lawsuit which was certified by the Federal District Court of Maine on behalf of current and former detainees at the Knox County Jail if you meet ALL of the following conditions:
(1) You were held at the Knox County Jail between November 19, 1996 and December 31, 2004; and (2) You were held in custody at the jail before a bail hearing or a first court appearance; (3) You were not arrested for crimes involving drugs or weapons, or a violent felony; and (4) You were strip-searched without an evaluation to determine if there was a reason to suspect possession of hidden contraband.
A strip search process is one in which you were required to remove all of your clothes while a corrections officer inspected and viewed your naked body. In some cases, the officer may have required you to either squat, cough, and open your mouth or expose your body cavity while a corrections officer inspected and viewed your naked body.
You are not a class member if you were a convicted prisoner serving a sentence, or if you were strip-searched for cause, for example after an officer discovered drugs or contraband in your possession.
If you believe you are a class member, write to:
Explain why you believe you are a class member. Include your full name, current address.
All other paragraphs in the proposed notices, not specifically discussed above, shall
remain as stated in Plaintiffs’ amended Proposed Notice to Class Members (Docket Item
No. 129) filed on August 16, 2005.
/s/ Gene Carter Gene Carter Senior United States District Judge
Dated this 2nd day of November, 2005.

 
 UNITED STATES DISTRICT COURT District of Maine

)

LAURIE TARDIFF,

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Docket No. 02-251-PC

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF PROPOSED INJUNCTIVE ORDER
I. INTRODUCTION The Defendants have filed, of even date, a proposed injunction.1 The Defendants have
presented the Plaintiff with a detailed injunctive order, and have explained in separate

1 The issue of circumstances under which the Defendants would conduct strip searches in the future was discussed during a judicial settlement conference. At the conclusion of the conference the parties signed a Settlement Agreement drafted by the judicial officer conducting the settlement. The Agreement set forth certain specific terms of the agreement, and then referred to the Amended Settlement Agreement in Nilsen v. York County with respect to “provision and procedures” contained therein. This Settlement Agreement, drafted by the judicial officer, and signed by counsel for the parties, contained no reference to an injunction. Subsequent to the settlement conference, however, Plaintiff insisted that an injunction had been agreed to. Defense counsel for the County and the Sheriff (Peter Marchesi, Esq. and John Wall, Esq.), independent counsel for the Sheriff (Toby Dilworth, Esq.), and independent counsel for the County (Timothy Woodcock, Esq.) all concur that there was no agreement that an injunction would issue. To the contrary, consistent with the Settlement Agreement in Nilsen v. York County, the Defendants would agree to conduct strip searches in conformity with applicable law from the United States Supreme Court, the First Circuit and this Judicial District. Notwithstanding their serious reservations about adding a term to the settlement not previously contemplated specifically, and recognizing that an agreement to conform their conduct in a certain respect would likely be as enforceable as a formal injunction, see generally Rufo v. Inmates of the Suffolk County Jail, et al., 502 U.S. 367 (1992), the Defendants agreed to the
1

communication to Plaintiff’s counsel the reasoning underlying the content of their proposed order.2
The Defendants request that the injunctive Order embody two simple and straight
forward provisions: (1) that the Order accurately reflect current law in the First Circuit with
respect to strip searches of pretrial detainees, and (2) that the injunction be flexible so that it is
coterminous with Fourth Amendment law from the United States Supreme Court, the First
Circuit Court of Appeals and this Court with respect to strip searches of pretrial detainees, as that
law may evolve in the future. Stated simply, Defendants agree to conform their conduct to the
law in this area as it exists not only at the present time, but as that law may evolve. Because the
Order proposed to the Defendants by the Plaintiff is overly restrictive with respect to the
circumstances under which strip searches may be conducted, and because, by its very terms, it prohibits future modifications, the Defendants cannot agree to that proposed Order.3
II. MEMORANDUM OF LAW
A. THE CURRENT STATE OF THE LAW IN THE FIRST CIRCUIT PERMITS STRIP SEARCHES ON ANY PERSON CHARGED WITH A CRIME INVOLVING WEAPONS, DRUGS OR CONTRABAND, OR VIOLENT FELONIES, AND ON ANY PERSON FOR WHOM THE CIRCUMSTANCES PROVIDE INDIVIDUALIZED REASONABLE SUSPICION THAT SUCH PERSON IS CONCEALING DRUGS, WEAPONS OR OTHER CONTRABAND.
At the present time, First Circuit law prohibits strip searches of individuals charged with
minor offenses in the absence of individualized reasonable suspicion. Roberts v. Rhode Island, 239 F.3d 107, 110 (1st Cir. 2001) (citing Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997).
issuance of an injunction without agreeing to the content thereof. Letter from Peter T. Marchesi, Esq. to Judge Gene Carter dated October 3, 2006. 2 The order proposed to Plaintiff is the same order filed of even date. The communication to Plaintiff’s counsel is marked as Exhibit 1 and annexed hereto. 3 The Order proposed by the Plaintiff to the Defendant is marked as Exhibit 2 and annexed hereto.
2

Reasonable suspicion may arise either from individual circumstances, or from the nature of the crime that an individual is charged with. Roberts at 112. Whether the reasonable suspicion is based upon the specific facts or circumstances of an individual’s arrest and incarceration, or upon the nature of the crime charged, the concept of contraband, apart from weapons and drugs, is significant. Plaintiff’s proposed injuction fails to take this into account.
It is unquestioned that strip searches may be justified by the belief, whether individualized or based upon the nature of the crime charged, that an individual is concealing contraband other than weapons or drugs. Wood v. Hancock County, 354 F.3d 57 (1st Cir. 2003) (contact visits are a significant source of contraband in jails and . . . seemingly harmless items – such as pens and paper clips – can be transferred innocently and used in harmful ways). The Wood court cited two other cases for the proposition that contraband, other than weapons and drugs, may pose serious security risks in the correctional setting. Block v. Rutherford, 468 U.S. 576, 586 (1994) ([v]isitors can easily conceal guns, knives, drugs, or other contraband . . .); Goff v. Nix, 803 F.3d 358, 364-65 (8th Cir. 1986) (. . . weapons, drugs, and other items of contraband are serious problems in our nation’s prisons).
The Defendants submit that the following is a correct statement of current First Circuit law with respect to strip searches of pretrial detainees: “strip searches may be conducted on any person charged with a crime involving weapons, drugs or other contraband, or violent felonies, and on any person for whom circumstances provide individualized reasonable suspicion that the person is concealing drugs, weapons or other contraband”. Stated in the negative, and in the form proposed by the Defendants’ proposed injunction: “strip searches may not be conducted on any person who is not charged with a crime involving weapons, drugs, or contraband, or with a violent felony, unless there is a reasonable belief that that person is concealing drugs, weapons or
3

other contraband”. The Defendants submit that the language in their proposed injunctive Order
accurately reflects the current state of the law in this circuit, and further submit that the language
contained in Plaintiff’s proposed Order is too restrictive in that it prohibits strip searches under
circumstances that are presently recognized as providing a constitutional basis for such searches.
B. THE DEFENDANTS REQUEST THAT ANY INJUNCTIVE ORDER NOT ONLY ACCURATELY REFLECT THE CURRENT STATE OF THE LAW WITH RESPECT TO STRIP SEARCHES OF PRETRIAL DETAINEES, BUT THAT THE INJUNCTION BE FLEXIBLE SO THAT ITS TERMS ARE MODIFIED TO REFLECT THE EVOLUTION OF THE LAW WITH RESPECT TO THESE SEARCHES. The Defendants agree to conduct themselves within the bounds of the law4, but no more.
The Defendants respectfully insist that any injunction be flexible, so as to evolve with
developments in the law, and to be coterminous with the law.
There is substantial support for the proposition that, if a party to litigation agrees to
refrain from conduct that is, or is believed to be, unconstitutional, and if it is subsequently
determined that such conduct is in fact constitutional, the party may be nevertheless be held to
that agreement:
If it is clear that a party anticipated changing conditions that would make performance of the decree more onerous but nevertheless agreed to the decree, the party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking . . . .
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 385 (1992). Here, as the Court and the
Plaintiff are aware, the Defendants have long argued that both this Court and the First Circuit
Court of Appeals (beginning with its decision in Swain v. Spinney in 1997) have failed to adhere
4 The Defendants have repeatedly asserted that their conduct has, at all times, both in policy and practice, conformed with constitutional requirements.
4

to the analytical paradigm established by the United States Supreme Court in cases where
arrestees assert a violation of Fourth Amendment rights. See, e.g., Defendants’ Motion for
Reconsideration, Docket Item No. 150 ; Defendants’ Motion for Certification of Immediate
Appeal, Docket Item No. 258. If the Defendants were to agree to an Order requiring them to
conduct themselves consistent with the state of the law as it exists today, and if that law were to
change in the future, the Defendants could be foreclosed from seeking modification of the injunctive Order.5 The Plaintiff’s proposed injunctive Order, particularly if agreed to by the
Defendants, would essentially foreclose the ability for modifications based upon changes in the
law. Specifically, the words “are forever enjoined and restrained” appear to be intended to foreclose future modifications.6 The Defendants’ proposed injunctive Order does two things: (1)
it specifically provides, by its terms, that the Order shall be deemed modified so that it remains
consistent with the law as the law may evolve, and (2) to the extent there is disagreement in the
future over whether and to what extent controlling Fourth Amendment law may have changed,
such question shall be considered without regard to the standards of review set forth in Rufo.
5 Ironically, this eventuality would be a one way street. If the law were to become less restrictive with respect to strip searches, it is possible that the Defendants would nevertheless be required to hew to the terms of the more restrictive state of the law that exists at the present time. Contrariwise, if the law were to become more restrictive with respect to strip searches, Defendants would find no safe harbor in the terms of the injunctive Order, and would be obligated to conform their conduct to be consistent with the change in the law. Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 388. 6 It is noteworthy that the Defendants provided their proposed Order, and their explanation for the terms of that Order, before Plaintiff presented her proposed Order. It is apparent that the Plaintiff recognized the Defendants’ desire to seek future modifications of the Order based upon changes in the law, and then specifically included language in their proposed Order that would foreclose such modifications.
5

III. CONCLUSION

The Defendants do not agree that they consented, as part of the Settlement Agreement

signed on September 29, 2006, to be bound to an injunctive Order. However, the Defendants

will agree to the issuance of such an Oder, and have proposed an Order that they believe

accurately states the substance of law in the First Circuit regarding strip searches of pretrial

detainees at the present, and that permits for modifications of the Order in the future based upon

changes in that law. The Defendants will only agree to the entry of an Order that meets both of

those premises, and objects to the issuance of any Order that does not. The Defendants reserve

the right to take an appeal from the issuance of an injunctive Order that does not meet both of

those conditions, while at the same time complying with all agreed upon terms of the settlement

reached in this case.

Dated: October 10, 2006

WHEELER & AREY, P.A.

By____/s/ Peter T. Marchesi ____ Peter T. Marchesi, Esq. Attorney for Knox County Defendants P.O. Box 376 Waterville, Maine 04903-0376

6

UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Docket No. 02-251-PC

CERTIFICATE OF SERVICE
I hereby certify that on October 10, 2006, I electronically filed with the Clerk of Court using the CM/ECF system Defendants’ Memorandum of Law in Support of Proposed Injunctive Order. The Court will send notification of such filing(s) to the following:
SUMNER LIPMAN, ESQ.- slipman@lipmankatzmckee.com DALE THISTLE, ESQ.- dthistle@verizon.net ROBERT STOLT, ESQ.- rstolt@lipmankatzmckee.com JOHN WALL, ESQ. - jwall@monaghanleahy.com TOBY DILWORTH, ESQ. - tdilworth@lawmmc.com

Dated: October 10, 2006
cc: Malcolm Ulmer Timothy Woodcock, Esq.

___/s/ Peter T. Marchesi ______ Peter T. Marchesi, Esq. Wheeler & Arey, P.A. Attorney for Defendants 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

LAURIE TARDIFF, Plaintiff
vs.
KNOX COUNTY, et al., Defendants

)

)

)

)

)

)

Civil No. 02-251-P-C

)

)

)

)

)

)

ORDER OF INJUNCTION

This Order of Injunction is entered by this Court as part of and in furtherance of the

claims raised in Laurie Tardiff vs. Knox County, et al., Civil No. 02-251-P-C. This injunction

incorporates the Final Settlement Agreement signed by the Parties and approved by this Court as

of October , 2006, all documents incorporated therein.

1. This Injunction is premised on the understanding that the Parties have agreed that the

settlement of the claims raised in Laurie Tardiff v. Knox County embodies a

compromise by all Parties in their respective positions; specifically, this Injunction is

premised on the understanding that the Defendants have denied and continue to deny

liability and that Defendants’ denial is based, in part, on their view of the applicability vel non of Fourth Amendment1 to strip searches as they may be conducted at various points in the “continuum from arrest to incarceration”2, and, in part, on their view of

the particular policies, practices pertaining to strip searches of individuals at issue in

1 IV Amend., U.S. Const. 2 Illinois v. Lafayette, 462 U.S. 640, 644 (1983).
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the instant case, as well as specific strip searches of specific individuals at issue in this case violated Fourth Amendment privacy rights of those searched.; this Injunction recognizes that Defendants’ denial of liability on these issues and all others comprehended by Tardiff v. Knox County, et al., was and remains an essential term for settlement of this case; 2. This injunction is further premised on the understanding that the Fourth Amendment claims raised in Tardiff v. Knox County, et al. are based on court interpretations of the Fourth Amendment and that, as such, Fourth Amendment may evolve and change based on court decisions issued after the effective date of this Injunction. It is the intent of the Parties and an essential premise of this Injunction that Defendants’ obligations herein shall be coterminous with controlling authority on Fourth Amendment law governing as that authority may evolve and change after the effective date of this Injunction irrespective whether that authority is more or less restrictive of such searches than the authority in effect as of the date of this Injunction. 3. In the event that the Parties disagree over whether and to what extent controlling authority on Fourth Amendment law may have changed at any time after the effective date of this Injunction, such question shall be considered without regard to the standards of review set forth in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992) or any other standard for the review of Injunctions, Consent Decrees or similar orders or agreements and the sole question shall be whether and to what extent controlling authority governing Fourth Amendment law has changed. Such determination shall be appealable by either party de novo as a matter of law.
{EP - 00038385 - v1 - 15894.14 - 10/5/2006 08:30 AM}

WHEREFORE, IT IS HEREBY ORDERED THAT, 1. Arrestees being held on misdemeanor charges may be strip searched as part of the booking process only if officers have reasonable suspicion that the arrestee possesses weapon or weapons, controlled substances, or contraband. 2. Arrestees being held on felony charges may be strip searched as part of the booking process only if (a) the charge involves violence, weapons or controlled substances or (b) the officers have reasonable suspicion that the arrestee possesses a weapon or weapons, controlled substances or contraband. 3. The Parties, individually and collectively, retain the right to seek a modification of this Injunction to conform with any changes in controlling authority governing the circumstances under which strip searches may or may not be conducted and the standards applicable to such determinations.

Dated:______________________

______________________________ Gene Carter, Senior United States District Court Judge

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 UNITED STATES DISTRICT COURT District of Maine

)

DALE DARE,

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Docket No. 02-251-PC

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR FINAL SETTLEMENT APPROVAL

NOW COME Defendants, through counsel, and hereby respond to Pl aintiffs’ Motion for Final Settlement Approval.
The Defendants join with Plaintiffs in seeking approval of the sett lement on the terms set forth in the agreement reached between the parties on September 29, 2006. The Defendants submit this filing for two principal reas ons: (1) to alert the Court to the f act that the Def endants have brought claims against Laurie Tardiff seeking to enforce the settlement as to her and to therefore request that t he Court take account of the po ssibility of such enforcem ent and reserve funds sufficient to pay Tardif f one share of the settlement fund, plus an appropriate bonus, and (2) to address certain statements made by Plaintiff in the Motion for Final Settlement Approval. A. THE DEFENDANTS HAVE FILED CLAIMSAGAINST LAURIE TARDIFF ARISING OUT OF HER ATTEMPT TO OPT OUT OF THIS SETTLEMENT.
The Court is well aware of the Defendants’ contention that Laurie Tardiff is bound to the settlement agreement and does not have the right toopt out ofthe agreement. The Defendants have repeatedly reserved their right to en force the settlem ent as to Tardif f. Transcript of 10/11/06 Hearing, pp. 47-49; Transcript of 10/24/06 Hearing, pp. 5-6; Transcript of 11/27/06 Hearing, pp.

6-9, 11-12, 15-17; Transcript of 12/18/06 Hearing, p. 11. The Court has acknowl edged that the Defendants may challenge Tardiff’s attempt to opt out of the settlement. Transcript of 11/27/06 Hearing, p. 8.
Ms. Tardiff has attempted to opt out by filing an Opt Out/Exclusion Form with the Dare Claims Administrator. Tardiff subsequently filed a civil action against Knox County and Jane Doe (Laurie Tardiff v. Knox County and Jane Doe, Docket No. 07-cv-10). The Defendants have filed a counterclaim against Ms. Tardiff alleging breach of contract and equitable estoppel. (Tardiff v. Knox County, et al, Docket No. 07-cv-10, Docket Item No. 7). In the event that the Defendants are successful on either count of their counterclaim , Ms. Tardiff will be bound to the settlement agreement in the instant action and will only be entitled to recover from the settlement fund.
The Defendants are ame nable to the Court reserving a portion of the settlem ent fund to compensate Ms. Tardiff for her share in the litigation, plus an appropriate bonus for her efforts as the class representative. In the event that Tardiff is ultimately found to be bound to the settlement, she would be able to recover from the reserved portion of the fund. In the event that she is not bound to the settlement, then the reserve proceeds could be distributed by thecy pres doctrine.1 Of course, the Defendants urge the Court to approve the settlement even if it declines to set aside funds specifically for Ms. Tardiff.
1Reservation of a small portion of the total settlement fund would only marginally reduce the amount being paid to the other approved claimants. Class counsel has repeatedly referred to the total settlement as “extraordinary”, Plaintiff’s Motion for Approval of Settlement, p. 4; Plaintiff’s Motion for Attorney’s Fees, pp. 3-4, 12, and have observed that individual class members will receive a cash payment “in the neighborhood of $5,000". Motion for Approval of Settlement, p. 10. Class counsel has also observed that this payment far exceeds the payments to individual class members in the matter of Nilsen v. York County, Docket No. 02-212. Plaintiff’s Motion for Attorney’s Fees, p. 13.
2

B. CORRECTIONS TO PLAINTIFFS’ MOTION FOR FINAL SETTLEMENT APPROVAL Plaintiffs’ Motion for Final Settlement Approval contain a number of inaccuracies, including
attributions of motive to the Defendants, which require correction, as theyare now a matter of public record.
1. The Defendants dispute class counsel’s description of the course of litigation. Page 3 of class counsel’s memorandum contains a description of the course of litigation in this case from April 1, 2006, to the settlement conference of September 29, 2006, which can best be described as an exercise i n rhetorical excess. Defendants do not agree with m any of the characterizations in that part of the memorandum but believe that this Court is sufficiently familiar with this litigation to separate the wheat from the chaff. 2. Discovery and Electronic Data Plaintiffs assert that “comprehensive interrogatories and document request(sic) were made . . .”. Plaintiff’s Motion for Final Settlement Approval, p. 8. In point of fact, neither side served interrogatories on the other. Plaintiffs also assert that “extensi ve information was obtained electronically by on-site inspection of the jails(sic) electronic records, and that thousands of lines of electronic data were analyzed by experts on both sides”. Plaintiff’s Motion for Final Settlement Approval, pp. 8, 13. These statements are factually inaccurate. Alt hough Plaintiffs engaged experts in an attem pt to extract electronic information from the jail’s computers, the Defendants informed Plaintiffs’ counsel – before, during and af ter this exercise – that the jail did not maintain inmate information electronically and that any electronic inform ation which existed was entered after the fact as a training exercise on computer software that was never used as it had been intended when it was
3

purchased. Indeed, after spending many tens of thousands of dollars, Plaintiffs reported to the Court exactly what the Defendants had been representni g all along: the information on the computers was of no use, and the only source of the information which Plaintiffs desired was contained in paper records. Plaintiff’s Motion for Aid in Identification of Class Members, Sept. 15, 2004, Docket Item No. 49.
3. The paper records maintained by the Jail were ofsufficient quality for the Plaintiffs to recommend that the Court allow the claims administrator to use those records for purposes of acting upon claims by class members.
In Plaintiffs’ motion, Plaintiffs refer to “the poor quality of the records”. Plaintiff’s Motion for Final Settlement Approval, p. 9. The records m aintained by the jail were presented chronologically for an eight-year period (four months, believed to be contained in a single banker’s box, were m issing). These records were organized shift- by-shift, day-by-day, week-by-week, month-by-month, and year-by-year. The records identified all of the activity in the intake/release area of the jail, which is the area where the strip searches that are the subject of this action wer e alleged to have occurred. The records documented the activity of each inmate and the correctional officers, including when the inmates came into the jail, what crimes they were charged with, whether or not they were strip searched, and if so, by whom.
While perhaps not ideally suited as a source of data for a § 1983 class action lawsuit, the records allowed counsel to identify all possible class members.
Indeed, in the settlem ent agreement, Plaintiffs recommend that the adm inistrator review claim forms submitted by class m embers and compare the claims with “available booking data previously provided by the Defendants”, and use that data to act on the individual claims. Third Final Settlement Agreement, § VII(1) and (3) , Docket Item No. 376. The “booking data” is
4

information obtained exclusively from the records. Pl aintiffs’ recommendation that the claim s administrator use data fromthe Defendant’s records as the exclusive source of accepting or rejecting a class member’s claim demonstrate that the records were sufficient.
4. Defendants deny that it was their practice to strip search all inmates. In their motion, Plaintiffs state that “Defendants have not denied that the challenged strip search practice occurred . . .”. Plaintiff’s Motion for Final Settlement Approval, p. 11. In fact, to the contrary, the Defendants have always denied th at such a practice existed. In addition to the denials contained in the answers to Plaintiffs’ complaint and amended complaint, the Defendants vigorously opposed Plaintiffs’ Motion for Summary Judgment, arguing, in part, that there was no custom or practice sufficient to impose liability on Knox County. To this day, the Defendants deny that there was a customor practice of strip searching all detainees at the Knox County Jail. The jail records conclusively demonstrate that there was no such custom or practice. 5. The Court’s order on Plaintiffs’ Motion for Sum mary Judgment was and is
interlocutory in nature and does not cont ain findings t hat may be used by class members who have opted out in subsequent litigation. Plaintiffs argue that class members who have opted out ofthe settlement may use “the Partial Summary Judgment and the Injunctive Order to their advantage”. Plaintiff’s Motion for Final Settlement Approval, p. 12. The summary judgment order was andis interlocutory in nature. A final judgment never ensued. The order cannot be used against the Defendants in subsequent litigation brought by class members who have opted out.
CONCLUSION
5

The Defendants join Plaintiffs in requesting that the settlem ent be approved. Defendants reiterate their position that Laurie Tardiff is bound to the settlement. Defendants also correct the record with respect to inaccuracies contained in Plaintiffs’ Motion for Final Settlement Approval as set forth hereinbove.

Dated: April 20, 2007

/s/ Peter T. Marchesi Peter T. Marchesi, Esq. Wheeler & Arey, P.A. Attorney for Defendants 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

6

UNITED STATES DISTRICT COURT District of Maine

)

LAURIE TARDIFF

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Docket No. 02-251-PC

CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2007, I electronically filed with the Clerk of Court using the CM/ECF systemDefendants’ Response to Plaintiff’s Motion for Final Settlement Approval. The Court will send notification of such filing(s) to the following:
SUMNER LIPMAN, ESQ.- slipman@lipmankatzmckee.com DALE THISTLE, ESQ.- dthistle@verizon.net ROBERT STOLT, ESQ.- rstolt@lipmankatzmckee.com JOHN WALL, ESQ. - jwalol@monaghanleahy.com GEORGE T. DILWORTH, ESQ. - tdilworth@lawmmc.com

Dated: April 20, 2007

/s/ Peter T. Marchesi Peter T. Marchesi, Esq. Wheeler & Arey, P.A. Attorney for Defendants 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

7

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, on behalf of herself and )

on behalf of others similarly situated,

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, et al.,

)

Defendants

)

Docket No. 02-251-P-C

FINAL SETTLEMENT AGREEMENT1
I. SUMMARY
The parties agreed to settle this case on Friday, September 29, 2006 at the Judicial Settlement Conference with Chief Judge Singal. (Docket Item No. 328). The general terms of the agreement are set forth in a Settlement Agreement signed by all parties on September 29, 2006. Additionally, the Court will issue an injunctive Order designed to prevent unconstitutional strip searches in the future. Under the Settlement Agreement, the parties are required to submit, using the Second Amended Settlement Agreement approved in Nilsen v. York County, (02-CV-212-PH) their final written agreement, along with a Motion to Recertify the Class on or before Tuesday, October 3, 2006. (Docket Item No. 318, supra).
1 The parties continued to exchange communications as recently as the morning of October 10, 2006, in an effort to resolve all remaining issues with respect to the Final Settlement Agreement. However, Plaintiff filed her own version of a Final Settlement Agreement. Although the Defendants would have preferred to continue the dialog with Plaintiff in an effort to reach an agreement acceptable to all parties, the Defendants feel constrained to file the Settlement Agreement that they propose.
1

Pursuant to the Court’s October 4, 2006 “Remark” (Docket Item No. 334), the parties will either jointly agree on language to be included in the injunctive Order, or will separately submit proposed orders to the Court. The Agreement also settles all claims of the class, including, without limitation on the generality of the foregoing, claims of the class representatives and absent class members who have not opted out for compensatory damages, punitive damages, attorneys fees and costs, and interest by establishing a common fund of Three Million Dollars ($3,000,000.00), to be shared among participating class members after payment of attorneys fees, costs, claims administration expenses, and class representative bonuses. Under this Agreement, class members will receive one payment regardless of the number of times that they were booked into the jail and searched during the class period.
II. TERMS A. Procedural History
1. Plaintiff filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted Plaintiff’s motion for class certification and certified this case as a class action under Fed.R.Civ.P. 23(b)(3). The class was defined as follows:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or (2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or
2

(3) while waiting for an initial court appearance on charges that did not involved a weapon, drugs, or a violent felony; or (4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony. The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit. 2. Plaintiffs alleged that all arrestees or pre-trial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of the booking procedure. The Defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements. B. Agreement 1. The parties agree that the class period begins on November 19, 1996, and ends December 31, 2004. 2. Knox County may agree to the issuance of an Injunctive Order issued by the Court, and to any subsequent modifications to that Order. 3. An approved class action notice was sent to potential class members at their last known addresses and notices were published as required by the Court after class certification. No class members asked to be excluded by the opt out deadline. 4. The Defendants will pay Three Million Dollars ($3,000,000.00) to settle all claims brought by Plaintiff and class in this action including claims for attorneys fees,
3

costs, administrative costs, and interest by check made out to the “Tardiff Settlement Fund” and delivered to class counsel no later January 15, 2007.
5. The parties agree and acknowledge that the Defendants have denied liability in whole and that the payment was made and other agreements contained herein were given without admission of liability, which is expressly denied, and which payment was made and other agreements were given by the Defendants solely for the purpose of buying their peace and freedom from litigation. No language contained in this Settlement Agreement or any language contained in any motions for approval of settlement filed by Plaintiffs or in any orders by the Court approving or denying either preliminary or final approval to the Settlement Agreement shall in any way be construed as acknowledgments or admissions of liability, all of which are expressly denied by the Defendants.
6. The Defendants and their counsel agree to provide reasonable assistance to facilitate the administration of this settlement including providing access to data and documents necessary to determine class membership if a person disputes denial of a claim by the claims administrator.
7. The Defendants understand that this agreement will require approval of the Court. The Defendants will ask the Court to approve the terms of the settlement.
8. If Plaintiff has to incur any additional attorney time or costs to seek collection of the settlement fund because of a default by the Defendants in the timely performance of its obligations to pay under this Agreement, the Defendants may be responsible for payment of reasonable attorneys fees and costs under 42 U.S.C. § 1988. Any request for
4

such additional fees and costs shall be by application to the Court with opportunity for objection by the Defendants.
9. Class counsel will establish the “Tardiff Settlement Fund” as a qualified settlement fund. Once the Court grants final approval of the settlement, the entire fund and all interest or income resulting from the investment of the fund shall be part of the fund. If the Defendants do not pay all or part of their obligation on time, the amount owed by that Defendant will accrue interest at the rate of twelve percent (12%) per year, compounded daily. Interest will only apply to the unpaid portion of the Defendant’s obligation.
10. The Settlement Fund and any money earned by the fund will be invested in the Marshall Money Market fund which is AAA rated by Fitch, unless and until otherwise ordered by the Court. Class Counsel, Class Representatives, Defendants and Defense Counsel shall not have any responsibility or liability for the investment of the Settlement Fund. If the Court does not give final approval to the settlement, the Plaintiffs will return the amount paid to the Defendants. III. COURT SUPERVISION
1. The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.
2. Any deadlines, dates, or other details in this Settlement Agreement may be changed by the Court on a showing of good cause.
5

IV. HEARING 1. The Court has scheduled a hearing for 9:30 a.m., October 11, 2006, to decide
whether to grant approval to the settlement, recertify the class for settlement purposes and to issue a permanent Injunctive Order. If approval is granted, the parties will begin to implement the settlement. The Defendants will make their payment as specified hereinabove, and the Plaintiffs will send the approved notice to the class.
2. The Court will hold a final fairness hearing to decide whether to grant final approval of settlement on April 2, 2007.
3. If the Court grants final approval of the settlement, the Tardiff Settlement Fund will belong to the Plaintiff and the class, and the Defendants will no longer have any right to, title to, or interest in the funds. The funds will then be distributed pursuant to orders of the Court. V. CLAIMS ADMINISTRATOR
1. Class counsel requests that the firm of Analytics, Inc. of Chanhassen, Minnesota to be approved by the Court as Claims Administrator. The Declaration of Richard Simmons and the qualifications of Analytics, Inc., are attached hereto as Exhibit E.
2. Class counsel recommends that the Claims Administrator be permitted to designate an attorney as agent in Knox County to distribute checks to any claimants who wish to pick up their check. This agent will be paid by the Claims Administrator for performing this service.
3. The Claims Administrator will administer notice to class members in the
6

manner prescribed by the Court; shall accept and docket all claims; shall send all notices that a claim has been accepted or rejected to class members; shall resolve any appeals of claim denials; shall calculate the amount of each claim pursuant to the formula set out in this Agreement; and shall report to the Court as necessary, including providing a final report.
4. Class counsel will oversee settlement administration and will provide direction to the Claims Administrator as needed. VI. NOTICE, OBJECTIONS, AND CLAIM
1. Class counsel will send a Notice of Class Action Settlement and of the Hearing to Approve the Settlement (“Notice of Settlement”), a Settlement Claim Form, and a Frequently Asked Questions sheet, by first class mail postage prepaid to all potential class members, whose addresses are known to class counsel, at their last known address within three weeks after the Court’s order granting preliminary approval. If any mail is returned by the post office with notice of a more current address, class counsel will resend the notice to that address. Class counsel is not required to make any further efforts to send mail directly to class members. A Notice of Settlement and Settlement Claim Form will be made available to anyone who requests such information. Claim Forms will be available to be downloaded from the web site or on request to the Claims Administrator including through a toll free number.
2. The Notice of Settlement will include the terms of the settlement (attached as Exhibit A) and the class member’s right to contest the settlement. This Notice includes
7

Frequently Asked Questions which explain the settlement terms and answer anticipated questions. Attached as Exhibit F is the envelope to be used for mailing the proposed Notice of Settlement.
3. The Settlement Claim Form requests the class member’s contact information, affirmation that he or she meets the class definition, instructions for check delivery, and a Form W-9. The proposed settlement claim form is attached as Exhibit B.
4. Class counsel will also publish notice of the settlement in the Portland Press Herald, Rockland Courier Gazette and the Bangor Daily News. This notice is attached as Exhibit C.
5. In addition to the legal notices, class counsel will issue a press release informing the public of the settlement. The press release is attached as Exhibit D.
6. Class counsel, through the Claims Administrator, will establish a website (www.knoxcountyjailclass.com) which will include the Notice of Settlement (Exhibit A) and the Settlement Claim Form (Exhibit B).
7. The Claims Administrator will send a claim form to anyone who requests one before the time for filing claim forms has expired. In addition, the Claims Administrator will maintain updated documents regarding this settlement on the website including a claim form which can be printed and mailed. The Claims Administrator will also maintain a toll-free number for claimants to call with questions about the claim form. This number will be operational for at least five (5) months.
8. In order for a class member to claim a share of the settlement, he or she must
8

submit a valid and complete Settlement Claim Form postmarked no later than January 5, 2007. This deadline is called the “Claims Deadline”.
9. In order for a class member to object to the proposed settlement, he or she must submit written notice of the objection to the Claims Administrator. In addition, an objector may also appear in person or through counsel at the final fairness hearing when the objection will be considered by the Court. The Claims Administrator will forward all letters of objection to the Court and to counsel for all parties. (The class member may also submit a Settlement Claim Form if he or she wishes to be eligible to share in the settlement should it be approved despite his or her objection.)
10. Settlement Claim Forms received by the Claims Administrator within two weeks after the Claims Deadline will be treated as if postmarked by the Claims Deadline. This two-week grace is the Amnesty Period.
11. Notwithstanding paragraph 10 above, claim forms will be treated as filed in a timely manner if either (1) the form is received by the Claims Administrator by no later than January 5, 2007, or (2) if a request to permit additional time to file a claim form is received by the Court by no later than January 5, 2007 and the related claim form is received by the Claims Administrator by no later than January 19, 2007. Claim forms received after this date will be denied as untimely. VII. APPROVALS AND APPEALS
1. The Claims Administrator will review each claim form to determine that the claimant is a class member by confirming (a) that the Settlement Claim Form is timely
9

and valid, (b) that the information on the form is consistent with available booking data previously provided by the Defendants, and (c) that the Form is completely filled out and signed.
2. The Claims Administrator may, in its discretion, waive a technical defect in the Claim Form to achieve substantial justice.
3. If the booking data indicates that the person does not meet the class definition, the Claims Administrator will send a Notice of Claim Denial to the claimant. The denial notice will, if possible, indicate the reason or reasons for the denial. These would include (a) not at the jail during the class period, (b) no booking for an offense within the class definition, or (c) that the person was not strip searched while being held awaiting bail or a first court appearance. Because the booking data is sometimes inaccurate or nondescriptive as to whether a person was strip searched, the Claims Administrator may accept the Claimant’s affirmation of strip search.
4. In order to object to the Claims Administrator’s determination that he or she is not a class member, a claimant must file a written notice of appeal to the Claims Administrator postmarked no later than two (2) weeks after the date of the mailing on the Notice of Claim Denial. He or she may include written documentation that shows that he or she is a class member, and he or she may also include a written statement. Those objections claiming that a person who otherwise met the class definition were strip searched will be reviewed against available records of the Defendants to determine if the person was strip searched. The Claims Administrator will make a determination on each
10

appeal no later than eight (8) weeks after the deadline for class members to file such appeals. The Claims Administrator will inform the class member in writing of their determination and will provide copies to all counsel. Rulings by the Claims Administrator will be final and binding, except that a Claimant is allowed to appeal a denial of a claim directly to the Court.
5. The Claims Administrator will send a Notice of Claim Approval (“Notice of Claim Approval”) to each approved claimant promptly but in no event later than one week after the Court grants final approval of the settlement.
6. A claimant who used a different name at booking must present documentation establishing that he or she is the person referred to in the booking records. VIII. EXPENSES AND ATTORNEYS FEES
1. Administrative costs, including the Claims Administrator’s fees and expenses, will be paid from the Settlement Fund.
2. Class counsel ask the Court to approve payment of Plaintiff’s attorneys fees and out-of-pocket costs in the amount of thirty percent (30%) of the settlement fund. These fees and costs shall be paid at the same time as the distribution of the Settlement Fund to class members. In addition, class counsel will ask the Court to deduct from the settlement an amount sufficient to pay the costs of further litigation and the expenses of claims administration. IX. DISTRIBUTION TO CLASS MEMBERS
1. Class counsel recommends to the Court that the Claims Administrator pay
11

bonuses from the Settlement Fund to compensate the class representative for the time that she spent on this case and her loss of privacy as a result of serving as a Class Representative. Class counsel also recommends a bonus to compensate the 19 class members whose depositions were taken by defense counsel for the time they spent. Class counsel recommends a bonus of $50,000.00 to Laurie Tardiff, the class representative. Class counsel recommends a bonus of $500.00 to each of the 19 class members who were deposed by the Defendants. These checks will be issued at the same time as payments to class members.
2. Class members will receive payment from the common fund after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants.
3. The Claims Administrator will calculate the amount of money due each class member by providing one share for every class member with an approved claim. The Claims Administrator will total the number of approved shares and then divide the amount remaining in the Settlement Fund (after the payments made as provided in Paragraph 2 above) by the number of shares to determine the amount each approved participating class member will receive.
4. Class members will receive one payment even if they were booked into the jail and strip searched more than one time during the class period.
5. Each class member’s check will be made payable only in his or her name or, upon the death of a class member, to the personal representative of the deceased class
12

member’s estate or the person filing an affidavit in compliance with the Maine Procedure for Collection of Personal Property by Affidavit of the Rightful Heir under 18-A M.R.S.A. § 3-1201, or the equivalent procedure of the law of another state that governs the estate of the deceased class member. A check will be mailed to the class member at their mailing address or it may be picked up. Any change of address request must be made in writing and must be signed by the claimant.
6. If a participating class member is confined in a prison, hospital or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the class member makes other acceptable arrangements in writing with the Claims Administrator.
7. Payments to class members are subject to attachment, garnishment, levy, or other legal process. X. POST-DISTRIBUTION ADMINISTRATION
1. Marshall and Ilsley Bank, a nationally chartered bank, will prepare all Forms 1099 for class members who receive a settlement check during the bank’s next regular tax-form processing following distribution. The Claims Administrator will prepare all other necessary tax forms relating to the Settlement Fund account.
2. The Claims Administrator will provide a report to the Court and to counsel for all parties accounting for the distribution of settlement funds, including attorneys fees and expenses, once the distribution is complete.
3. Any balance in the settlement fund after all settlement checks have been
13

distributed and all bonuses, expenses, and attorneys fees have been paid and will be distributed under the Cy Pres doctrine on order of the Court. XI. DECEASED CLASS MEMBERS
1. If a class member is deceased, an authorized representative may file a Settlement Claim Form on behalf of the estate. However, the representative must provide to the Claims Administrator documentation that an estate has been established in accordance with the law and with Paragraph IX (5), above. XII. RELEASE AND AGREEMENT TO DEFEND, INDEMNIFY AND HOLD HARMLESS
1. In consideration of the settlement amount, all Defendants, including individual defendants in both their official and individual capacities, and the Maine County Commissioners Association Self-Funded Risk Management Pool will be released from all liability for the class members’ claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed a claim within the applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that this release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross-gender searches, or searches which
14

were observed by persons other than the correctional officer performing the search. The parties further agree that their settlement does not release any other claims, such as those involving physical touching, other than those alleged to have taken place in connection with strip searches as aforesaid, or other types of alleged or wrongful conduct such as wrongful arrest, excessive force, or searches that were not part of the intake procedure (such as strip searches after a lockdown).
2. In further consideration of payment of the settlement amount, each class member shall be obligated to satisfy all liens, subrogation interests or claims of any doctor, hospital, insurance carrier, state or governmental agency, or any other person, firm, or corporation, which have been made or may in the future be made against the payment to that class member described herein, or against any Defendant, arising out of the claims, demands, actions or causes of action set forth in the First Amended Complaint and released as part of this Settlement Agreement. Each class member further agrees to hold harmless and to defend and indemnify the Defendants, including their officers, officials, employees, attorneys, agents, or any of them, to the fullest extent possible, from and for any claims, demands, actions, causes of action, suits, judgments, costs or expenses of any kind, brought by that class member as a result of any search within the scope of this class action as certified by the Court in any orders approving this Settlement Agreement, whether or not the class member actually made a claim, except any class member who opted out of the settlement.
15

XIII. EXHIBITS2

The following exhibits are attached to this Agreement:

Exhibit A - Notice of Settlement

Exhibit B - Settlement Claim Form;

Exhibit C - Notice of Settlement to be published in newspaper;

Exhibit D - Press release; and

Exhibit E - documents regarding Analytics, Inc., the proposed Claims

Administrator

Exhibit F – Postage Paid envelope

Dated:

_____________________________ Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated:

______________________________ Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated:

_____________________________ Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160

2 Exhibits A-F are attached to Plaintiff’s Final Settlement Agreement (Document Number 339).
16

Dated: October 10, 2006 Dated: October 10, 2006 Dated: October 10, 2006

Newport, ME 04953

_____/s/ Peter T. Marchesi______ Peter T. Marchesi, Esq. Attorney for Defendants Wheeler & Arey, P.A. 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

__/s/ John Wall

_________

John Wall, Esq.

Attorney for Defendants

Monaghan Leahy LLP

P.O. Box 7046

Portland, Maine 04112-7046

__/s/ George Dilworth________ George Dilworth, Esq. Attorney for Defendant Davey McCloskey Mina & Cunniff LLC 12 City Center Portland, ME 04101-4006

17

UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Docket No. 02-251-PC

CERTIFICATE OF SERVICE
I hereby certify that on October 10, 2006, I electronically filed with the Clerk of Court using the CM/ECF system Defendants’ Final Settlement Agreement. The Court will send notification of such filing(s) to the following:
SUMNER LIPMAN, ESQ.- slipman@lipmankatzmckee.com DALE THISTLE, ESQ.- dthistle@verizon.net ROBERT STOLT, ESQ.- rstolt@lipmankatzmckee.com JOHN WALL, ESQ. - jwall@monaghanleahy.com TOBY DILWORTH, ESQ. - tdilworth@lawmmc.com

Dated: October 10, 2006
cc: Malcolm Ulmer Timothy Woodcock, Esq.

___/s/ Peter T. Marchesi ______ Peter T. Marchesi, Esq. Wheeler & Arey, P.A. Attorney for Defendants 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376

18

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DALE DARE, on behalf of himself and on behalf of others similar situated,
Plaintiffs
v.
KNOX COUNTY and DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff,
Defendants

Civil No. 02-251-P-C

ORDER ON MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT After conducting the Final Fairness hearing on April 23, 2007, I now make the following findings and orders: 1. Plaintiffs’ counsel has provided notice to the class as ordered by the Court, and the class members have received proper notice of the settlement. 2. The Third Settlement Agreement (Docket Item No. 376) is fair, reasonable, and adequate, and provides notice of opt-out rights. Therefore, final approval of the settlement as herein set forth is hereby GRANTED. 3. It is hereby ORDERED that the distribution plan and opt-out notice, as provided for in the Third Settlement Agreement are hereby APPROVED. 4. I APPROVE and it is hereby ORDERED that the incentive award to compensate the class representative, Dale Dare, in the amount of Five Thousand Dollars

($5,000.00) and the payment of Five Hundred Dollars ($500.00) to each of the 20 members of the class who were deposed during discovery be made. These payments shall be made at the same time as payments to class members.
5. It is FURTHER ORDERED that class members receive payment from the common fund after deducting the designated sum for attorneys’ fees, costs, and expenses of administration, as finally authorized by the Court herein or by subsequent order, and payments to class members authorized in paragraph 4 above, and that the Claims Administrator calculate the amount due each class member by providing one (1) share of the remaining amount of the fund to every class member whose claim is approved.
6. It is FURTHER ORDERED that Defendants’ request that the Court order that a share of the fund be reserved for payment to former class member, Laurie Tardiff, against the possibility that she may be found in separate litigation to be bound by the Third Final Settlement Agreement is DENIED for reasons stated on the record at the Final Hearing on April 23, 2007.
7. I FIND that class counsel and the parties herein agreed in the Third Final Settlement (Docket Item No. 376) at 13 that “the Court . . . approve payment of Plaintiffs’ attorney’s fees and out-of-pocket costs in the amount of thirty percent (30%) of the settlement fund” and I FURTHER FIND that payment of counsel fees of twentyfive percent (25%) of the fund is a fair and reasonable payment for such fees and costs using the percentage of fund basis approved in this Circuit and District in such cases, In Re: Thirteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litigation, 56 F. 3d 295, 305 (1st Cir. 1995); In Re: Compact Disc Minimum Advertised Price Anti-
2

Trust Litigation, 216 F.R.D. 197, 216 (D. Me. 2003), having in mind the scope, difficulty and complexity of the work, the proficiency of counsel in performing it, and the result obtained by their efforts, all of which have been carefully considered by the Court. The resulting fee award is substantially consistent with the fee rationale utilized and the result obtained thereby in respect to the fee award by Judge Hornby in the recent, basically identical, case of Nilsen v. York County, 400 F. Supp. 2d 266 (D. Me. 2005), with which rationale this Court agrees and adopts for this case. The Court notes that the resulting fee award substantially accords with counsel’s agreement in the Third Final Settlement Agreement that the thirty percent (30%) award would include both counsel fees of class counsel and the expenses of litigation.
8. Accordingly, it is FURTHER ORDERED that class counsel receive as counsel fees herein the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00), or Twenty-Five percent (25%) of the amount of the settlement, and in addition thereto such part of the claimed expenses of One Hundred Seventy-Eight Thousand Five Hundred Sixty-One Dollars ($178,561.00) as shall ultimately be approved as reasonable by the Court after further proceedings.
9. The Court takes under ADVISEMENT class counsel’s claim for an award of litigation expenses.
10. It is FURTHER ORDERED that the costs claimed by the Claims Administrator be paid out of the fund after their final approval by the Court.
11. It is FURTHER ORDERED that each class member’s check be made payable only in the class member’s name, or upon the death of a class member, to the personal representative of the deceased class member’s estate or the person filing an
3

affidavit in compliance with the Maine Procedure for Collection of Personal Property by Affidavit of the Rightful Heir under 18-A M.R.S.A. § 3-1201, or the equivalent procedure of the law of another state that governs the estate of the deceased class member, such check to be mailed to the class member or other appropriate designee at their mailing address. Any change of address request will be required to be made in writing and must be signed by the claimant. If a participating class member is confined in a prison, hospital, or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the class member makes other acceptable arrangements in writing with the Claims Administrator.
12. It is FURTHER ORDERED that Marshall & Ilsley Bank, a nationally chartered bank, prepare all Forms 1099 for class members who receive a settlement check during the bank’s next regular form-processing following distribution. The Claims Administrator will prepare all other necessary tax forms relating to the Settlement Fund Account.
13. It is FURTHER ORDERED that any balance in the Settlement Fund after the settlement checks have been distributed, and all bonuses, expenses, and attorneys’ fees have been paid and will be distributed under the Cy Pres doctrine on order of the Court. The parties understand that the Court shall have the discretion to order Cy Pres distribution based upon the submissions by the class counsel in support of such distribution.
14. It is FURTHER ORDERED that, in consideration of the settlement amount, all defendants, including individual defendants in both their official and individual capacities, and the Maine County Commissioner’s Association’s self-funded
4

Risk Management Pool be, and are hereby, RELEASED upon payment of a class member’s approved share of the fund of and from all liability for the class member’s claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed an individual lawsuit within the applicable statute of limitations; that the release of claims arising from this settlement includes all visual inspections, including without limitation, visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case; that the release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross-gender searches, or searches which were observed by persons other than the correctional officer performing the search; and that their settlement does not release any other claims, such as wrongful arrest, excessive force, or searches that were not part of the admission process (such as strip searches after a lockdown).
15. It is FURTHER ORDERED that each class member shall satisfy all liens, subrogation interests or claims of any doctor, hospital, insurance carrier, state or governmental agency, or any other person, firm, or corporation, which have been made or may in the future be made against the payment to that class member described herein, or against any Defendant arising out of the claims, demands, actions, or causes of action set forth in the First Amended Complaint and released as part of this Settlement Agreement, and hold harmless and defend and indemnify the Defendants, including their officers, officials, employees, attorneys, agents, or any of them, to the fullest extent possible, from and for any claims, demands, actions, causes of action, suits, judgments, costs or
5

expenses of any kind brought by that class member as a result of any search within the scope of this class action and certified by the Court in any orders approving this Settlement Agreement, whether or not the class member actually made a claim, except any class member who opted out of the settlement.
16. It is FURTHER ORDERED that the administration of the settlement shall comply with the following deadlines:
a. Claimants who wish to appeal to the Court the Claims Administrator’s final decision shall file a Notice of Appeal with the Claims Administrator and with the Court post-marked no later than fourteen (14) days after the date of the mailing of the appeal denial letter by the Claims Administrator. b. After receiving such notice of appeal, the Claims Administrator shall file a response with the Court within five (5) days after docketing of the notice of appeal to the Court. 17. It is FURTHER ORDERED that after all appeals have been finally decided, the Claims Administrator shall promptly process all settlement claim forms to determine the amount of the share to be awarded to each successful claimant and distribute settlement payments to class members pursuant to the distribution plan no later than fourteen (14) days after the Court resolves all outstanding issues. 18. It is FURTHER ORDERED that the Claims Administrator will provide to the Court and to counsel for all parties a final accounting for the distribution of the Settlement Fund, including attorneys’ fees and expenses, within twenty (20) days from the date of distribution.
6

19. It is FURTHER ORDERED that Plaintiffs’ counsel shall file a final report of the settlement within sixty (60) days from receiving the Claims Administrator’s accounting and which shall seek approval of any disposition of any remaining funds.
SO ORDERED. Gene Carter__________________________ GENE CARTER Senior United States District Judge
Dated at Portland, Maine this 24th day of April, 2007.
7

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

LAURIE TARDIFF, individually and on behalf of others similarly situated,
Plaintiffs

v.

Civil No. 02-251-P-C

KNOX COUNTY, DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff,
Defendants
Gene Carter, Senior District Judge
THE COURT’S PROPOSED PERMANENT INJUNCTION PURSUANT TO SETTLEMENT AGREEMENT
The Court has now approved the Settlement Agreement (Docket Item No. 339-1)
proposed by the parties herein Order Approving Settlement Agreement (Docket Item No.
____). The Agreement, as approved, provides that:
“Knox County agrees that it will adhere to the permanent Injunctive Order issued by the Court, and to subsequent modifications to that Order.” Settlement Agreement (Docket Item No. 339-1), ¶ II.B.2, at 4. Id. at 3.
The Agreement also provides:
“The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.” Id. ¶ III. 1, at 6.

Now, therefore, in the exercise of the enforcement authority conferred on the Court by Paragraph III.1 of the Settlement Agreement and by the All Writs Act, 28 U.S.C. § 1651, it is hereby ORDERED that any individual in the custody of the Defendants, or their Correction Officers, and held on either misdemeanor charges or on felony charges that do not involve weapons, violence or contraband substances shall be strip searched only if the Corrections Officers have reasonable suspicion that the individual does possess a weapon, a controlled substance, or other contraband. See, Wood v. Hancock Counties, 354 F.3d 357 (1st Cir. 2003)(defining “strip search”).
IT IS FURTHER ORDERED that Defendants and Sheriff Davies’ successors in office shall require to be kept at the Knox County Jail a log that shall record every instance in which an individual is found to be subject, for booking purposes at the Knox County Jail, a strip search procedure, the following information:
(1) The date and time of the search procedure, (2) The identity of each officer participating in the search procedure, (3) A brief statement of facts found to constitute “reasonable
suspicion” for a strip search, and (4) The identity of the officer making the determination that
“reasonable suspicion” warranted a strip search and authorizing such search. Such log shall be available for public inspection at reasonable times during the business day.
/s/Gene Carter__________________ GENE CARTER Senior United States District Judge Dated at Portland, Maine this 11th day of October, 2006.
2

 
 UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

PLAINTIFFS’ REPLY TO DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION FOR FINAL SETTLEMENT APPROVAL
NOW COME Plaintiffs, by and through counsel, and hereby reply to Defendants’ Response to Plaintiffs’ Motion for Final Settlement Approval.
A. DEFENDANTS’ CLAIMS AGAINST LAURIE TARDIFF The Defendants efforts to shoehorn Laurie Tardiff back into class membership is a non-starter. The Court heard extensive argument from all parties regarding a second opt out opportunity for all class members and Laurie Tardiff in particular. The Court approved a second opt out opportunity which seven (7) class members in addition to Laurie Tardiff elected to opt out. To carve an exception to the opt out provision and preserve a place for Laurie Tardiff as a class member is unfair to those 366 people who filed timely claims and to take away from those people any of the money that they can

expect to receive from this class settlement is unfair. It is also unfair in its discriminatory impact on Laurie Tardiff as a person who exercised her right to opt out of the class.
B. CORRECTIONS TO PLAINTIFFS’ MOTION FOR FINAL SETTLEMENT APPROVAL
2. Discovery and Electronic Data The Defendant is correct that neither party served interrogatories on the other. Plaintiffs, however, served extensive and repetitive sets of document discovery requests and Requests for Admissions on the Defendants. The discovery efforts in this case were astronomical and when Defendants did not comply, discovery conferences were held with Magistrate Judge Cohen and with the Court. The latest tally on ECF filings stands at 390. The electronic information gathered on site was extensive and served as the sole means of verifying charge information for class members. The five hard-bound books (Plaintiffs’ trial exhibits 3a through 3e) were distilled from the electronic data file. Plaintiffs complained vociferously about the jail’s poor record keeping with respect to identifying individuals detained at the jail because of mistakes in birthdates, spelling, social security numbers and the like, but the database obtained through the recovery of electronic records was priceless in its ability to provide information about crimes committed and to shed light on discrepancies between the respective positions of the parties as to when, how and under what circumstances individuals came to the jail. The electronic files became doubly valuable in sorting out the validity of claims made by class members to the Claims Administrator. 3. The Paper Records

The Defendants are incorrect when they suggest that the paper records were used

by the Claims Administrator for purposes of acting upon the claims by class members. In

fact, the records used were the electronic version of Plaintiffs’ trial exhibits 3a through e

were generated from the electronic database assembled by Plaintiffs’ computer experts

from the on site recovery of electronic records at the jail. No reference was made to the

intake release records for purposes of claims administration.

The Defendants are incorrect when they suggest that available booking data is

obtained exclusively from the paper records. The booking data is not limited to paper

intake and release records. There is extensive booking data in the electronic records

which, cross-checked against Defendants “List of Objections”, made resolution of claims

eligibility decisions relatively easy.

Respectfully, Plaintiffs request that the Court approve settlement in this matter

finally.

Dated: April 20, 2007

/s/ Sumner Lipman Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: April 20, 2007

/s/ Robert Stolt Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: April 20, 2007

/s/ Dale Thistle

Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2007 I electronically filed the Plaintiffs’ Reply

To Defendant’s Response To Plaintiffs’ Motion For Final Settlement Approval With the

Clerk of Court using the CM/ECF System, which will send notification of such filing(s)

to the following:

Peter Marchesi, Esq.- pbear@wheelerlegal.com; George Dilworth, Esq.–tdilworth@lawmmc.com; John Wall - jwall@monaghanleahy.com Dale F. Thistle-dthistle@verizon.net; Sumner H. Lipman – slipman@lipmankatzmckee.com William Robitzek – wrobitzek@bermansimmons.com

and all other counsel of record. I hereby certify that on April 20, 2007, I mailed the above-mentioned documents by U.S. Postal Service to the following non-registered participant(s):

None.

Dated: April 20, 2007

/s/ Robert J. Stolt, III Robert J. Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee, P.A. P.O. Box 1051 Augusta, ME 04330 Bar No. 1406 (207) 622-7415

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF SETTLEMENT AND AWARD OF ATTORNEY’S
FEES NOW COME Plaintiffs, by and through counsel, to offer this supplemental memorandum in support of the pending Motions for Final Approval of the class settlement and award of attorney’s fees. A. Class Membership Claims have been approved for 366 claimants out of a total of 423 timely filed claim forms. An additional 14 claims were filed late and 8 individuals opted out. Of the 423 timely received claims, 366 were approved and 57 were rejected. 15 of the rejected claimants stated on their claim forms that they were neither held nor strip searched. The remainder were rejected because they were either serving a sentence or had been charged with a disqualifying crime.

67 claimants were found to be obligors owing child support arrearages from whom the State will recoup approximately $350,000.00.
B. The Fund The Knox County Settlement Fund has been deposited in the Marshall Money Market Fund as required by the Preliminary Settlement Approval Order. It earns interest at the rate of 4.235% and has earned interest to date in the amount of $20,485.81. The settlement check from Knox County was received and deposited on the 14th day of February, 2007 and the check from the Risk Pool was received and deposited on 16th day of February, 2007. The projected interest to be earned through May 30, 2007 is estimated at $16,350.00 at which time the total estimated amount of the settlement fund available available to be distributed by May 31, 2007 is $3,036,835.81. C. Claims Administrator Attached as Exhibit 1 to this Memorandum is the Affidavit of Becky L. Oelschlager detailing the efforts made by the Claims Administrator getting notice to potential claimants and in approving and denying of claims. Attached to that Affidavit are Exhibits A-G relating to publication of the claims notice and form. Exhibit G identifies the 8 individuals who elected to opt out of the class settlement. Also attached as Exhibit 2 to this Memorandum are bills dated April 13, 2007 from Analytics for services rendered between March 1, 2007 and April 13, 2007. And finally, also attached as Exhibit 3 is Becky Oelschlager’s e-mail of April 12, 2007 estimating additional costs of $30,592.13 to close out the claims process. Class counsel

had previously paid $8,684.33 to the Claims Administrator on its previous invoice (see

Plaintiffs’ Motion for Attorney’s Fees).

D. Class Members

Class counsel have fielded a multitude of phone calls from class claimants asking

questions about the claims process, final approval and payment and expressing their

gratitude for the work done and the benefits obtained for class members. For many it was

the first time they had stood up to the plate.

CONCLUSION

Class counsel respectfully requests the Court approve the pending Motions as

submitted.

Dated: April 20, 2007

/s/ Sumner Lipman Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: April 20, 2007

/s/ Robert Stolt Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated: April 20, 2007

/s/ Dale Thistle Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953

UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defendants

)

Docket No. 02-251-P-C

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2007 I electronically filed Supplemental

Memorandum In Support Of Plaintiffs’ Motions For Final Approval Of Settlement And

Award Of Attorney’s Fees the With the Clerk of Court using the CM/ECF System, which

will send notification of such filing(s) to the following:

Peter Marchesi, Esq.- pbear@wheelerlegal.com; George Dilworth, Esq.–tdilworth@lawmmc.com; John Wall - jwall@monaghanleahy.com Dale F. Thistle-dthistle@verizon.net; Sumner H. Lipman – slipman@lipmankatzmckee.com William Robitzek – wrobitzek@bermansimmons.com

and all other counsel of record. I hereby certify that on April 20, 2007, I mailed the above-mentioned documents by U.S. Postal Service to the following non-registered participant(s):

None.

Dated: April 20, 2007

/s/ Robert J. Stolt, III Robert J. Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee, P.A. P.O. Box 1051 Augusta, ME 04330 Bar No. 1406 (207) 622-7415

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, on behalf of herself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, et al.,

)

)

Defendants

)

Docket No. 02-251-P-C

FINAL SETTLEMENT AGREEMENT I. SUMMARY
The parties agreed to settle this case on Friday, September 29, 2006 at the Judicial Settlement Conference with Chief Judge Singal. (Docket Item No. 328). The general terms of the agreement are set forth in a Settlement Agreement signed by all parties on September 29, 2006. Additionally, the Court will issue an injunctive Order designed to prevent unconstitutional strip searches in the future. Under the Settlement Agreement, the parties are required to submit, using the Second Amended Settlement Agreement approved in Nilsen v. York County, (02-CV-212-P-H) their final written agreement, along with a Motion to Recertify the Class on or before Tuesday, October 3, 2006. (Docket Item No. 318, supra).
Pursuant to the Court’s October 4, 2006 “Remark” (Docket Item No. 334), the

1

parties will either jointly agree on language to be included in the injunctive Order, or will separately submit proposed orders to the Court.
The Agreement also settles all claims of the class, including, without limitation on the generality of the foregoing, claims of the class representatives and absent class members who have not opted out for compensatory damages, punitive damages, attorneys fees and costs, and interest by establishing a common fund of Three Million Dollars ($3,000,000.00), to be shared among participating class members after payment of attorneys fees, costs, claims administration expenses, and class representative bonuses. Under this Agreement, class members will receive one payment regardless of the number of times that they were booked into the jail and searched during the class period. II. TERMS A. Procedural History
1. Plaintiff filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted Plaintiff’s motion for class certification and certified this case as a class action under Fed.R.Civ.P. 23(b)(3). The class was defined as follows:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail: (1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or (2) while waiting for bail to be set on charges that did not involve a weapon,
2

drugs, or a violent felony; or (3) while waiting for an initial court appearance on charges that did not involved a weapon, drugs, or a violent felony; or (4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony. The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit. 2. Plaintiffs alleged that all arrestees or pre-trial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of the booking procedure. The Defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements. B. Agreement 1. The parties agree that the class period begins on November 19, 1996, and ends December 31, 2004. 2. The Parties understand that the Court will issue an injunction the purpose of which will be to ensure the Defendants’ compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in a proposed injunctive Order attached as Exhibit G. If the Court issues the injunctive Order as proposed by the parties, all parties waive their rights to appeal this injunctive Order. In the event that the Court issues an injunctive Order different than that
3

proposed by the parties, the parties expressly reserve the right to appeal the injunctive Order and the Settlement Agreement of which it is an integral part to the U.S. Circuit Court of Appeals for the First Circuit..
3. An approved class action notice was sent to potential class members at their last known addresses and notices were published as required by the Court after class certification. No class members asked to be excluded by the opt out deadline.
4. The Defendants will pay Three Million Dollars ($3,000,000.00) to settle all claims brought by Plaintiff and class in this action including claims for attorneys’ fees, costs, administrative costs, and interest by check made out to the “Knox Settlement Fund” and delivered to class counsel no later than January 15, 2007.
5. The parties agree and acknowledge that the Defendants have denied liability in whole and that the payment was made and other agreements contained herein were given without admission of liability, which is expressly denied, and which payment was made and other agreements were given by the Defendants solely for the purpose of buying their peace and freedom from litigation. No language contained in this Settlement Agreement or any language contained in any motions for approval of settlement filed by Plaintiffs or in any orders by the Court approving or denying either preliminary or final approval to the Settlement Agreement shall in any way be construed as acknowledgments or admissions of liability, all of which are expressly denied by the Defendants.
6. The Defendants and their counsel agree to provide reasonable assistance to facilitate the administration of this settlement including providing access to data and
4

documents necessary to determine class membership if a person disputes denial of a claim by the claims administrator.
7. The Defendants understand that this agreement will require approval of the Court. The Defendants will ask the Court to approve the terms of the settlement.
8. If Plaintiff has to incur any additional attorney time or costs to seek collection of the settlement fund because of a default by the Defendants in the timely performance of its obligations to pay under this Agreement, the Defendants may be responsible for payment of reasonable attorneys fees and costs under 42 U.S.C. § 1988. Any request for such additional fees and costs shall be by application to the Court with opportunity for objection by the Defendants.
9. Class counsel will establish the “Knox Settlement Fund” as a qualified settlement fund. Once the Court grants final approval of the settlement, the entire fund and all interest or income resulting from the investment of the fund shall be part of the fund. If the Defendants do not pay all or part of their obligation on time, the amount owed by that Defendant will accrue interest at the rate of twelve percent (12%) per year, compounded daily. Interest will only apply to the unpaid portion of the Defendant’s obligation.
10. The Settlement Fund and any money earned by the fund will be invested in the Marshall Money Market fund which is AAA rated by Fitch, unless and until otherwise ordered by the Court. Class Counsel, Class Representatives, Defendants and Defense Counsel shall not have any responsibility or liability for the investment of the
5

Settlement Fund. If the Court does not give final approval to the settlement, the Plaintiffs will return the amount paid to the Defendants. III. COURT SUPERVISION
1. The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.
2. Any deadlines, dates, or other details in this Settlement Agreement may be changed by the Court on a showing of good cause. IV. HEARING
1. The Court will schedule a hearing to decide whether to grant approval to the settlement, recertify the class for settlement purposes and to issue a permanent Injunctive Order. If approval is granted, the parties will begin to implement the settlement. The Defendants will make their payment as specified hereinabove, and the Plaintiffs will send the approved notice to the class.
2. The Court will hold a final fairness hearing to decide whether to grant final approval of settlement on April 2, 2007.
3. If the Court grants final approval of the settlement, the Knox Settlement Fund will belong to the Plaintiff and the class, and the Defendants will no longer have any right to, title to, or interest in the funds. The funds will then be distributed pursuant to orders of the Court.
6

V. CLAIMS ADMINISTRATOR 1. Class counsel requests that the firm of Analytics, Inc. of Chanhassen, Minnesota
to be approved by the Court as Claims Administrator. The Declaration of Richard Simmons and the qualifications of Analytics, Inc. are attached hereto as Exhibit E.
2. Class counsel recommends that the Claims Administrator be permitted to designate an attorney as agent in Knox County to distribute checks to any claimants who wish to pick up their check. This agent will be paid by the Claims Administrator for performing this service.
3. The Claims Administrator will administer notice to class members in the manner prescribed by the Court; shall accept and docket all claims; shall send all notices that a claim has been accepted or rejected to class members; shall resolve any appeals of claim denials; shall calculate the amount of each claim pursuant to the formula set out in this Agreement; and shall report to the Court as necessary, including providing a final report.
4. Class counsel will oversee settlement administration and will provide direction to the Claims Administrator as needed. VI. NOTICE, OBJECTIONS, AND CLAIM
1. Class counsel will send a Notice of Class Action Settlement and of the Hearing to Approve the Settlement (“Notice of Settlement”), a Settlement Claim Form, and a Frequently Asked Questions sheet, by first class mail postage prepaid to all potential class members, whose addresses are known to class counsel, at their last known address
7

within three weeks after the Court’s order granting preliminary approval. If any mail is returned by the post office with notice of a more current address, class counsel will resend the notice to that address. Class counsel is not required to make any further efforts to send mail directly to class members. A Notice of Settlement and Settlement Claim Form will be made available to anyone who requests such information. Claim Forms will be available to be downloaded from the web site or on request to the Claims Administrator including through a toll free number.
2. The Notice of Settlement will include the terms of the settlement (attached as Exhibit A) and the class member’s right to contest the settlement. This Notice includes Frequently Asked Questions which explain the settlement terms and answer anticipated questions. Attached as Exhibit F is the envelope to be used for mailing the proposed Notice of Settlement.
3. The Settlement Claim Form requests the class member’s contact information, affirmation that he or she meets the class definition, instructions for check delivery, and a Form W-9. The proposed settlement claim form is attached as Exhibit B.
4. Class counsel will also publish notice of the settlement in the Portland Press Herald, Rockland Courier Gazette and the Bangor Daily News. This notice is attached as Exhibit C. The Defendant agrees to post the notice for publication attached as Exhibit C in the intake/booking area as well as in one area frequented by inmates in each of the separate pods at the jail. The notices will be posted as soon as the Court approves the mailing of a class wide notice of proposed settlement attached as Exhibit A, and will
8

remain up until the last day that the settlement claim forms can be filed. In addition, the Defendant has agreed to make available during the same timeframe defined in the prior sentence, to inmates (or anyone else) who requests it, a copy of the Notice of the Settlement attached as Exhibit A and counsel for the class will provide the County with 500 copies.
5. In addition to the legal notices, class counsel will issue a press release informing the public of the settlement. The press release is attached as Exhibit D.
6. Class counsel, through the Claims Administrator, will establish a website (www.knoxcountyjailclass.com) which will include the Notice of Settlement (Exhibit A) and the Settlement Claim Form (Exhibit B).
7. The Claims Administrator will send a claim form to anyone who requests one before the time for filing claim forms has expired. In addition, the Claims Administrator will maintain updated documents regarding this settlement on the website including a claim form which can be printed and mailed. The Claims Administrator will also establish, within three weeks after the Court grants preliminary approval of this settlement, and maintain a toll-free number for claimants to call with questions about the claim form. This number will be operational for at least five (5) months.
8. In order for a class member to claim a share of the settlement, he or she must submit a valid and complete Settlement Claim Form postmarked no later than January 5, 2007. This deadline is called the “Claims Deadline”.
9. In order for a class member to object to the proposed settlement, he or she must
9

submit written notice of the objection to the Claims Administrator. In addition, an objector may also appear in person or through counsel at the final fairness hearing when the objection will be considered by the Court. The Claims Administrator will forward all letters of objection to the Court and to counsel for all parties. (The class member must also submit a Settlement Claim Form if he or she wishes to be eligible to share in the settlement should it be approved despite his or her objection.)
10. Settlement Claim Forms received by the Claims Administrator within two weeks after the Claims Deadline will be treated as if postmarked by the Claims Deadline. This two-week grace is the Amnesty Period.
11. Notwithstanding paragraph 10 above, claim forms will be treated as filed in a timely manner if either (1) the form is received by the Claims Administrator by no later than January 5, 2007, or (2) if a request to permit additional time to file a claim form is received by the Court by no later than January 5, 2007 and the related claim form is received by the Claims Administrator by no later than January 19, 2007. Claim forms received after this date will be denied as untimely. VII. APPROVALS AND APPEALS
1. The Claims Administrator will review each claim form to determine that the claimant is a class member by confirming (a) that the Settlement Claim Form is timely and valid, (b) that the information on the form is consistent with available booking data previously provided by the Defendants, and (c) that the Form is completely filled out and signed.
10

2. The Claims Administrator may, in its discretion, waive a technical defect in the Claim Form to achieve substantial justice.
3. If the booking data indicates that the person does not meet the class definition, the Claims Administrator will send a Notice of Claim Denial to the claimant. The denial notice will indicate the reason or reasons for the denial. These would include (a) not at the jail during the class period, (b) no booking for an offense within the class definition, or (c) that the person was not strip searched while being held awaiting bail or a first court appearance. Because the booking data is sometimes inaccurate or non-descriptive as to whether a person was strip searched, the Claims Administrator may accept the Claimant’s affirmation of strip search.
4. In order to object to the Claims Administrator’s determination that he or she is not a class member, a claimant must file a written notice of appeal to the Claims Administrator postmarked no later than two (2) weeks after the date of the mailing on the Notice of Claim Denial. He or she may include written documentation that shows that he or she is a class member, and he or she may also include a written statement. Those objections claiming that a person who otherwise met the class definition was strip searched will be reviewed against available records of the Defendants to determine if the person was strip searched. The Claims Administrator will make a determination on each appeal no later than eight (8) weeks after the deadline for class members to file such appeals. The Claims Administrator will inform the class member in writing of their determination and will provide copies to all counsel. Rulings by the Claims
11

Administrator will be final and binding, except that a Claimant is allowed to appeal a denial of a claim directly to the Court.
5. The Claims Administrator will send a Notice of Claim Approval (“Notice of Claim Approval”) to each approved claimant promptly but in no event later than one week after the Court grants final approval of the settlement.
6. A claimant who used a different name at booking must present documentation establishing that he or she is the person referred to in the booking records. VIII. EXPENSES AND ATTORNEYS FEES
1. Administrative costs, including the Claims Administrator’s fees and expenses, will be paid from the Settlement Fund.
2. Class counsel will ask the Court to approve payment of Plaintiff’s attorneys fees and out-of-pocket costs in the amount of thirty percent (30%) of the settlement fund. These fees and costs shall be paid at the same time as the distribution of the Settlement Fund to class members. In addition, class counsel will ask the Court to deduct from the settlement an amount sufficient to pay the costs of further litigation and the expenses of claims administration. The parties understand that the Court shall have the discretion to award whatever fees and costs it deems justified based upon the submissions by the class counsel in support of those fees and costs. IX. DISTRIBUTION TO CLASS MEMBERS
1. Class counsel recommends to the Court that the Claims Administrator pay bonuses from the Settlement Fund to compensate the class representative for the time that
12

she spent on this case and her loss of privacy as a result of serving as a Class Representative. Class counsel also recommends a bonus to compensate the 19 class members whose depositions were taken by defense counsel for the time they spent. Class counsel recommends a bonus of $5,000.00 to the class representative of record as of the date of the final approval of this settlement. Class counsel recommends a bonus of $500.00 to each of the 19 class members who were deposed by the Defendants. These checks will be issued at the same time as payments to class members.
2. Class members will receive payment from the common fund after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants.
3. The Claims Administrator will calculate the amount of money due each class member by providing one share for every class member with an approved claim. The Claims Administrator will total the number of approved shares and then divide the amount remaining in the Settlement Fund (after the payments made as provided in Paragraph 2 above) by the number of shares to determine the amount each approved participating class member will receive.
4. Class members will receive one payment even if they were booked into the jail and strip searched more than one time during the class period.
5. Each class member’s check will be made payable only in his or her name or, upon the death of a class member, to the personal representative of the deceased class member’s estate or the person filing an affidavit in compliance with the Maine Procedure
13

for Collection of Personal Property by Affidavit of the Rightful Heir under 18-A M.R.S.A. § 3-1201, or the equivalent procedure of the law of another state that governs the estate of the deceased class member. A check will be mailed to the class member at their mailing address or it may be picked up. Any change of address request must be made in writing and must be signed by the claimant.
6. If a participating class member is confined in a prison, hospital or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the class member makes other acceptable arrangements in writing with the Claims Administrator. X. POST-DISTRIBUTION ADMINISTRATION
1. Marshall and Ilsley Bank, a nationally chartered bank, will prepare all Forms 1099 for class members who receive a settlement check during the bank’s next regular tax-form processing following distribution. The Claims Administrator will prepare all other necessary tax forms relating to the Settlement Fund account.
2. The Claims Administrator will provide a report to the Court and to counsel for all parties accounting for the distribution of settlement funds, including attorneys fees and expenses, once the distribution is complete.
3. Any balance in the settlement fund after all settlement checks have been distributed and all bonuses, expenses, and attorneys fees have been paid and will be distributed under the Cy Pres doctrine on order of the Court. The parties understand that the Court shall have the discretion to order Cy Pres distribution based upon the
14

submissions by the class counsel in support of such distribution. XI. DECEASED CLASS MEMBERS
1. If a class member is deceased, an authorized representative may file a Settlement Claim Form on behalf of the estate within the Claims Deadline, i.e. postmarked no later than January 5, 2007. However, the representative must provide to the Claims Administrator within the Claims Deadline documentation that an estate has been established in accordance with the law and with Paragraph IX (5), above. XII. RELEASE AND AGREEMENT TO DEFEND, INDEMNIFY AND HOLD HARMLESS
1. In consideration of the settlement amount, all Defendants, including individual defendants in both their official and individual capacities, and the Maine County Commissioners Association Self-Funded Risk Management Pool will be released from all liability for the class members’ claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed a claim within the applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that this release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross-gender searches, or searches which
15

were observed by persons other than the correctional officer performing the search. The parties further agree that their settlement does not release any other claims, such as wrongful arrest, excessive force, or searches that were not part of the admission process (such as strip searches after a lockdown).
2. In further consideration of payment of the settlement amount, each class member shall be obligated to satisfy all liens, subrogation interests or claims of any doctor, hospital, insurance carrier, state or governmental agency, or any other person, firm, or corporation, which have been made or may in the future be made against the payment to that class member described herein, or against any Defendant, arising out of the claims, demands, actions or causes of action set forth in the First Amended Complaint and released as part of this Settlement Agreement. Each class member further agrees to hold harmless and to defend and indemnify the Defendants, including their officers, officials, employees, attorneys, agents, or any of them, to the fullest extent possible, from and for any claims, demands, actions, causes of action, suits, judgments, costs or expenses of any kind, brought by that class member as a result of any search within the scope of this class action as certified by the Court in any orders approving this Settlement Agreement, whether or not the class member actually made a claim, except any class member who opted out of the settlement. XIII. EXHIBITS
The following exhibits are attached to this Agreement: Exhibit A - Notice of Settlement
16

Exhibit B - Settlement Claim Form; Exhibit C - Notice of Settlement to be published in newspaper; Exhibit D - Press release; and Exhibit E - documents regarding Analytics, Inc., the proposed Claims Administrator Exhibit F – Postage Paid envelope Exhibit G – Proposed Injunctive Order

Dated: October 16, 2006 Dated: October 16, 2006 Dated: October 16, 2006

/s/ Sumner Lipman Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051
/s/ Robert Stolt Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051
/s/ Dale Thistle Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953

17

Dated: October 16, 2006 Dated: October 16, 2006 Dated: October 16, 2006

/s/ Peter Marchesi Peter T. Marchesi, Esq. Attorney for Defendants Wheeler & Arey, P.A. 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376
/s/ John J. Wall, III John J. Wall, III, Esq. Attorney for Defendants Monaghan Leahy LLP P.O. Box 7046 Portland, Maine 04112-7046
/s/ George Dilworth George Dilworth, Esq. Attorney for Defendant Davey McCloskey Mina & Cunniff LLC 12 City Center Portland, ME 04101-4006

18

UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, individually, and )

on behalf of others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

KNOX COUNTY, et al.,

)

)

Defendants.

)

Civil No. 02-251-P-C

CERTIFICATE OF SERVICE

I hereby certify that on October 16, 2006 I electronically filed the Final Settlement

Agreement With the Clerk of Court using the CM/ECF System, which will send

notification of such filing(s) to the following: Peter Marchesi, Esq.-

pbear@wheelerlegal.com; George Dilworth, Esq.–tdilworth@lawmmc.com; Robert J.

Stolt-rstolt@lipmankatzmckee.com; Dale F. Thistle-dthistle@verizon.net; Sumner H.

Lipman-slipman@lipmankatzmckee.com; and all other counsel of record.

I hereby certify that on October 16, 2006, I mailed the above-mentioned

documents by U.S. Postal Service to the following non-registered participant(s):

None.

Dated: October 16, 2006

/s/ John J. Wall, III John J. Wall, III, Esq. Attorney for Defendants Monaghan Leahy, LLP P.O. Box 7046 Portland, Maine 04112-7046

19

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Tardiff v. Knox County Civil Action No. 02-251-PH
You could get a payment from a $3 million dollar class action settlement if you meet all of the following conditions:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004
2. You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs, weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to Suspect possession of hidden contraband.
A federal Court authorized this notice. This is not a solicitation from a lawyer.
• A $3 million settlement has been proposed in a class action lawsuit about alleged illegal strip searches that took place when people were strip searched at the Knox County Jail while being held prior to trial.
• The settlement fund will pay cash to those who submit valid claims after deducting attorney’s fees, and the costs and expenses for this case.
• The settlement prohibits the Knox County Jail from continuing the policy, custom and practice of strip searching people held prior to trial, charged with crimes not involving drugs, weapons or a violent felony.
Your legal rights are affected if you act or do not act. Please Read this Notice Carefully
You are receiving this notice because records show that you may be a class member. To see if you qualify, you must submit a complete Settlement Claim Form, postmarked by January 5, 2007, to:
Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006
If you submit a claim form and qualify as a class member, you will share in this settlement. The amount of money you will receive depends on how many people submit claim forms. The money will be divided by the number of claims. Lawyers for the plaintiffs believe that over seven thousand people are eligible members of the Class.
THESE ARE YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: Submit a Claim Form This is the only way to get a payment. Remember: Claim Forms
postmarked after January 5, 2007 will not be considered for payment.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
1

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 2 of 6

Object

You must write to the Court explaining why you believe the settlement is not

fair by January 19, 2007. Second, you must appear in Court at the Fairness

Hearing on April 2, 2007. Third, you must also submit a claim form.

Do Nothing

You get no payment. You will still be bound by the settlement and you give up your right to sue the defendant on these claims later.

THE SETTLEMENT BENEFITS – WHAT YOU GET AND HOW TO GET IT
How much will my payment be?
We do not know the amount of the payments. If you are eligible you will get a payment for only one strip search. The amount will depend on how many people submit claim forms. The amount per person will decrease as the number of forms submitted increases. Each participating person will receive an equal amount.
The settlement money will be distributed after payment of attorneys’ fees, expenses and bonuses. Counsel requests a 30% attorney’s fee, which includes all costs, expenses and disbursements. Class counsel requests payment of a bonus to the class representative and class members who were deposed to compensate them for the time they spent helping to bring about this settlement and for the loss of privacy to the class representative. The requested bonuses range from $500.00 for participating in a deposition to $50,000.00 for serving as class representative. The total amount of the requested bonuses is $59,500.00, less than 2% of the total settlement.
How can I get a payment?
You must fill out the Settlement Claim Form completely and mail it to the Claims Administrator. A Claim Form is included with this notice. You can also obtain a Claim Form from the Settlement Website at www.knoxcountyjailclass.com. The envelope must be postmarked no later than January 5, 2007; if it is not, your claim will be denied.
The settlement check will be written in your name with your social security number. Your check will be sent to your mailing address. If you move, you must notify the Claims Administrator in writing of your new address or the check will be sent to your old address.
When will I get my payment?
You cannot be paid until the settlement is approved by the Court and any appeals are over. The Court will hold a hearing on April 2, 2007, to decide whether to approve the settlement. If the Court approves the settlement and all appeals are completed promptly, you should receive your settlement check by June 1, 2007, unless there are any unforeseen delays.
Will I have to pay taxes on my payment?
You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Claims Administrator will send you a 1099 Form. (If you have questions about backup withholding, Form W-9 or Form 1099, call your tax preparer or the IRS Information Reporting Program Customer Service Section, toll free at (866) 455-7438, 8:30 am to 4:30 p.m., Monday through Friday.)
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
2

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 3 of 6
What should I do if I do not want to participate in the class action?
If you do not wish to participate in the class action, do nothing. If you do not send in a claim form you will not be a participating Class Member and you will not receive a payment. You will also be barred from filing a case on these claims in the future.
WHO IS IN THE SETTLEMENT
What is a Class Action and who are Class Members?
In a class action, one or more people, called Class Representatives (in this case, Laurie Tardiff), sued on behalf of all people who have similar claims. All of the people who were similarly treated are known as the Class or Class Members. One court resolves the issues for all Class Members.
How do I know if I am a Class Member and part of the settlement?
The Court has ruled that you are a Class Member if you meet all four factors below:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004. 2. You were held at Knox County Jail after an arrest but before a bail hearing or first court
appearance. This includes arrests on default and other warrants. 3. You were not charged with a crime involving drugs or weapons or a violent felony. 4. You were strip searched before a first court appearance or while awaiting bail.
NOTE: You are not a class member if you were either (1) strip searched while you were serving a sentence, (2) you were strip searched after an evaluation which determined there was reason to suspect possession of hidden contraband., or (3) you were arrested for and/or charged with a crime involving drugs, weapons or a violent felony.
What crimes are considered to be violent felonies?
The following crimes are violent felonies: aggravated assault, arson, assault on an officer, criminal restraint, elevated aggravated assault, gross sexual assault, kidnapping, manslaughter, murder, rape, and robbery. This list is non-exclusive, and other felony level crimes may be determined to be “violent”.
What if I was arrested for more than one crime?
The most serious charge for an arrest will determine your class membership. If any one of the charges was a crime involving weapons or drugs or was a violent felony, you are not a class member for that arrest. You might be eligible for another arrest.
What if I was arrested on a default warrant of violation of probation or parole?
You are a class member if you were arrested on a default or other warrant or for violating the terms of probation or parole so long as the crime for which you were on probation did not involve weapons, or drugs, or a violent felony.
3
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 4 of 6
Who makes the final decision about who qualifies as a Class Member?
The Class Administrator makes the final decision about who qualifies as a Class Member subject to Court review. The booking records kept by the Knox County Jail will help determine if you are a class member. You can help by listing the date or dates when you feel you met the class definition. If the records do not show that you fit the class definition, your claim will be denied. You can appeal your denial to the claims administrator by sending documentation and information regarding the dates you believe you were held and strip searched. A decision by the Claims Administrator can be appealed to the Judge. (If you are not a class member, you are not bound by this settlement. You can take action as an individual if you wish.)
What if I was arrested and strip searched more than once, can I still participate?
Yes. If you were arrested and brought to the Jail more than once during the class period you are a member of the class and can recover money. You can only recover one payment, however, as you will not be provided with extra payments if you were arrested and strip searched at the jail more than one time.
What if I was at the jail on or before November 18, 1996 or after December 31, 2004?
The time period for being a class member is based on the legal requirement that a case must be filed within a certain time period; this is called the statute of limitations. The law in Maine only allows a person to bring a claim within six years after his or her rights were violated. Because this case was filed by Laurie Tardiff on or about November 19, 2002, class members include anyone strip-searched in the six years before that date. If you were strip-searched on or before November 18, 1996, it may be too late to bring a lawsuit. The time period for the class ends on December 31, 2004. If you were stripsearched after this date, that search is not a part of this lawsuit; you must file your own lawsuit.
What if I was found not guilty of the crime for which I was arrested?
You are entitled to the same settlement amount whether you were found guilty or not guilty of the crime.
What if I am still unsure about whether I am part of the settlement?
If you are still unsure as to whether you are a member of the class, you may fill out and return the Settlement Claim Form. If the settlement is approved, you will be notified if you do not qualify. If you qualify you will receive a check. You may also visit the settlement website on the Internet at www.knoxcountyjailclass.com or call (877) 797-5732 to speak to a Settlement Administrator or Class Counsel to answer your questions.
How did the lawyers in this case find me and how can I protect my privacy?
After you were arrested, you gave your name and address at the Knox County Jail during booking. This information was given to the lawyers for the plaintiffs by Knox County pursuant to a court order. The lawyers for the plaintiffs will do everything they can to protect your privacy. Only the lawyers in the case and the Court appointed Claims Administrator will know your name and, in most cases, only the Claims Administrator will see your Claim Form.
4
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 5 of 6
THE COURT’S FAIRNESS HEARING
What is a Fairness Hearing?
The Court will hold a hearing to decide whether to approve the settlement. The Court will consider whether the settlement is fair, reasonable and adequate. The Court will also decide whether to approve the request for attorney’s fees, costs, expenses and the bonuses to class representatives. If the Court approves the proposed settlement, it will affect all class members.
When and where is the hearing?
The Hearing will be at tba a.m./p.m. on day, April 2, 2007 in the U.S. District Court of Maine, 156 Federal Street, Portland, ME.
Do I have to come to the hearing?
Class counsel will answer any questions the Court may have. You are welcome to come at your own expense. If you object to the settlement and you want to explain the objection to the Court you can attend the hearing or hire your own lawyer to attend for you.
May I or my lawyer speak at the hearing?
Yes, but only if you or your lawyer filed a written objection before the hearing.
OBJECTING TO THE SETTLEMENT
What if I think the proposed settlement is not fair? What can I do?
If you wish to object to the proposed settlement, you must state your objections to the Court in a letter sent to the Tardiff Settlement Claims Administrator, postmarked by January 19, 2007. The Claims Administrator will forward your objection to the Court and to the lawyers for the plaintiffs and for Knox County. If you want to explain the written objection to the court you, or a lawyer on your behalf, can appear in the U.S. District Court of Maine, 156 Federal Street, Portland, ME on April 2, 2007 to present your objections.
You may object to the proposed settlement and still be eligible to receive a payment. You must submit a valid Settlement Claim Form even if you object to the settlement, if you wish to claim money should the settlement be approved.
THE LAWYERS IN THIS CASE
Who are the lawyers in this case?
The lawyers for the plaintiffs are Robert Stolt, Esq., and Sumner Lipman, Esq., Lipman, Katz & McKee, 227 Water Street, P.O. Box 1051, Augusta, ME 04332-1051, and Dale Thistle, Esq., 103 Main Street, P.O. Box 160, Newport, ME 04953.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
5

Case 2:02-cv-00251-GC Document 339-2 Filed 10/10/2006 Page 6 of 6
Defendant Knox County is represented by attorney Peter Marchesi, Wheeler and Arey, P.A., 27 Temple Street, PO Box 376, Waterville, ME 04901, and John J. Wall, III, Monaghan Leahy LLP, 95 Exchange Street, PO Box 7046, Portland, ME 04112-7046. How will the plaintiffs’ lawyers be paid? The lawyers for the plaintiffs will request that the Court award an attorney’s fee of 30% of the settlement fund, which will include out-of-pocket costs.
OTHER INFORMATION If you wish to view the Court file or a copy of the proposed settlement agreement, you may go to the Clerk of the U.S. District Court of Maine, 156 Federal Street, Portland, ME during regular business hours. You can also view the settlement papers on the web at www.knoxcountyjailclass.com. To obtain more information or ask questions about the settlement, you can call the Claims Administrator toll-free at (877) 797-5732 ; write to the Claims Administrator at Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006; or visit the Internet website at www.knoxcountyjailclass.com. On the website you will find answers to frequently asked questions, a downloadable claim form, plus additional information that may help you determine if you are a Class Member.
Important – Please do not call the Court directly with questions about the settlement.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
6

Case 2:02-cv-00251-GC Document 339-3 Filed 10/10/2006
UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Page 1 of 2

LAURIE TARDIFF,

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, et al

)

)

Defendants )

)

Docket No. 02-251-PC
CLAIM FORM Must be postmarked by January 5, 2007

Late claims will be denied. You must complete and mail this Claim Form, postmarked by January 5, 2007 to: Tardiff Claims Administrator
P.O. Box 2006 Chanhassen, MN 55317-2006

Please see below to learn how to file for a deceased class member.

STEP ONE - PROVIDE YOUR BASIC INFORMATION. Please note that it is your responsibility to notify the Claims Administrator in writing at the above address if the address you provide changes.

First Name: ____________________ Middle Initial: ____ Last Name: _________________________________

Address: ______________________________ City: ____________________ State: ______ Zip Code: _______

Home Phone: (__________) ____________________________________ Work Phone: (__________) __________________________________ Cell Phone: (___________) ____________________________________

E-mail: __________________________ SSN: _________________ Date of Birth: ______/_______/________

Provide the following information about someone who will always know how to contact you.

Name: ___________________________ Relation to you: __________________________________________

Address: ______________________________ City: ____________________ State: ______ Zip Code: _______

Home Phone: ( )

Work Phone: ( )

Cell Phone: ( )

FILE FOR A DECEASED CLASS MEMBER:
You may submit a Claim Form on behalf of a deceased class member. To do so, in Step One, give the class member’s name and your own contact information. In Step Three, sign your own name and note your relationship to the class member. A settlement check can only be issued to a deceased class member’s estate. To participate for a deceased class member, you must be appointed administrator or executor of the class member’s estate, and you must send documentation of your appointment to the Claims Administrator by [date], or the claim will be denied.

CONTINUED ON BACK

Case 2:02-cv-00251-GC Document 339-3 Filed 10/10/2006 Page 2 of 2

Please Check One Box To Indicate How Your Check Should Be Handled If Your Claim Is

Approved:

□Mail the check to my □Hold the check for me to pick up in person. □Mail the check to this address:

address above.

Address: _____________________

If you do not select any If you select this option, a letter to the address

_____________________

of these options, the

you entered for yourself above will inform you

City: ________________________

check will be sent to

of when and where to pick up the check.

State: ________ Zip Code: ______

your address.

You will need to provide a reliable photo ID

when you pick up your check.

STEP TWO - PLEASE ANSWER THE FOLLOWING QUESTIONS TRUTHFULLY.

If you do not select Yes or No, then the form will be treated as if you selected No.

(1) I was held at the Knox County Jail between November 19, 1996, and December 31, 2004, waiting for bail to be set or for a first court appearance after I was arrested on charges that did not involve a weapon or drugs or a violent felony; or while waiting for a first court appearance after being arrested on a default or other warrant that did not involve a weapon or drugs or a violent felony.
□ Yes □ No
(a) If you answered Yes above, were you strip searched at that time?
□ Yes □ No
(b) It will help us if you can list the date or dates when the above happened to you and you feel you fit the class definition. (This is optional. Answer to the best of your ability.): ______________________________________________________________________________ (attach an additional sheet if necessary)
STEP THREE – SUBSTITUTE W-9 REQUEST FOR TAXPAYER IDENTIFICATION NUMBER.
(This should be your Social Security Number, unless you have been given a different number by the IRS for this purpose.)
□□□ - □□ - □□□□
(9 digits) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the IRS that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding.

If you have been notified by the IRS that you are subject to backup withholding, you must cross out the word
“not” and check here. □

STEP FOUR - PLEASE SIGN UNDER PENALTY OF PERJURY THAT ALL OF THE INFORMATION YOU PROVIDED IN THIS FORM IS TRUE AND ACCURATE TO THE BEST OF YOUR KNOWLEDGE AND BELIEF.

It is important that your answers are truthful. If you sign this and you know that the statement is not true, you can be charged with perjury pursuant to 18 U.S.C.A. § 1621, 28 U.S.C. § 1746.

Under penalty of perjury, I certify that all of the information provided on this form is true and correct:

___________________________________________ (Signature)

___________________ (Date)

STEP FIVE - MAIL THIS FORM, POSTMARKED BY _________________. TARDIFF CLAIMS ADMINISTRATOR P.O. BOX 2006 CHANHASSEN, MN 55317-2006

Case 2:02-cv-00251-GC Document 339-4 Filed 10/10/2006 Page 1 of 1
KNOX COUNTY JAIL
CLASS ACTION SETTLEMENT
A federal court authorized this notice. This is not an advertisement from a lawyer.
You could get a payment from a $3 million class action settlement if you meet ALL of the following conditions:
1. You were held at the Knox County Jail after November 19, 2006 and December 31, 2004,
2. You were held at Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs or weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to suspect possession of hidden contraband.
To see if you qualify, you must submit a complete Settlement Claim Form, postmarked January 5, 2007. You may obtain the Form by writing to Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006 or downloading the form at www.knoxcountyjailclass.com.

Case 2:02-cv-00251-GC Document 339-5 Filed 10/10/2006 Page 1 of 1

PRESS RELEASE

Date: Contacts:

Attorney Robert Stolt (207) 622-3711 (Plaintiffs’ lawyer) Attorney Dale Thistle (207) 368-7755 (Plaintiffs’ lawyer

Court Approves Notice to Class of Strip Search Settlement

Portland, ME— Today U.S. District Court Judge Gene Carter approved notice to class members of the settlement of a class action on behalf of people who alleged that they were illegally strip searched at the Knox County Jail while being held prior to trial. Knox County has agreed to pay $3 million dollars to settle the case.

As a result of this ruling, the claims administrator will send notice of the settlement and a claim form to class members. The Court has scheduled a final hearing on the fairness of the settlement to take place on April 2, 2007. If the Court grants final approval, money will be sent to those class members who submit claim forms.

The amount of money class members will receive depends on how many people submit claim forms. The money will be divided by the number of claims. The settlement fund will also pay for attorney’s fees and the costs of the case and claims administration. Plaintiffs’ attorney’s will seek a fee of 30% of the settlement fund.

A person is a class member if he or she was arrested only for crimes that did not involve drugs, or weapons, or violent felonies, and was at the Knox County Jail before his or her first court appearance, on or after November 19, 1996 and on or before December 31, 2004. Class members will need to submit a claim form by January 5, 2007 in order to obtain a share of the settlement. A copy of the claim form may be obtained from www.knoxcountyjailclass.com or by writing to Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006.

The case is Tardiff v. York County, Civil Action Number 02-251-PH.

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United States District Court District of Maine
POSTMASTER: IF UNDELIVERABLE, PLEASE RETURN TO: Claims Administrator PO Box 2006 Chanhassen, MN 55317-2006
IMPORTANT:
Notice of Class Action Lawsuit You may be eligible for a Settlement Payment

Time Sensitive Material. Open Immediately.

U.S. Postage Paid

UNITED STATES DISTRICT COURT District of Maine

)

LAURIE TARDIFF,

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, DANIEL DAVEY, )

JANE DOE and JOHN DOE,

)

Defendants

)

)

Civil No. 02-251-P-C

THE PARTIES PROPOSED PERMANENT INJUNCTION PURSUANT TO SETTLEMENT AGREEMENT

The Court has now approved the Settlement Agreement (Docket Item No ___) proposed

by the parties herein. Order Approving Settlement Agreement (Docket Item No.___). The

Agreement, as approved, provides that:

“The Parties understand that the Court will issue an injunction the purpose of which will be to ensure the Defendants’ compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in a proposed injunctive Order attached as Exhibit G. If the Court issues the injunctive Order as proposed by the parties, all parties waive their rights to appeal this injunctive Order. In the event that the Court issues an injunctive Order different than that proposed by the parties, the parties expressly reserve the right to appeal the injunctive Order and the Settlement Agreement of which it is an integral part to the U.S. Circuit Court of Appeals for the First Circuit.”

Settlement Agreement (Docket Item No.___), II(B)(2), at p.____. It is the purpose of this

injunction to ensure that the Defendants comply with Fourth Amendment law governing strip

searches.

The Agreement also provides:

“The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.”

Id. ¶ III (1), at p.__. Now, therefore, in the exercise of the enforcement authority conferred on the Court by
Paragraph III (1) of the Settlement Agreement and by the All Writs Act, 28 U.S.C. § 1651, it is hereby ORDERED that Knox County, its Sheriff, the Sheriff’s appointees and all other jail employees are enjoined from strip searching (see Wood v. Hancock County, 354 F.3d 357 (1st Cir. 2003) (defining “strip search”)) any person charged with a crime that does not involve weapons, violence or controlled or scheduled substances during the admission process – i.e., while that person is being held awaiting bail or a first court appearance, or after being arrested on a default or other warrant – unless the officer or person conducting the strip search has reasonable suspicion to believe the person does possess a weapon, controlled or scheduled substances, or other contraband.
IT IS FURTHER ORDERED that Defendants and Sheriff Davey’s successors in office shall be required to keep at the Knox County Jail a log that shall record every instance in which an individual is determined to be subject, for admission purposes at the Knox County Jail, to a strip search procedure, the following information:
(1) The date and time of the search procedure; (2) The name of the each officer participating in the search procedure; (3) A brief statement of facts found to constitute “reasonable suspicion” for a
strip search, to include the crime which the individual was charged with if the crime provides the basis for the strip search; and (4) The name of the officer who made the determination of that “reasonable suspicion” warranted a strip search and who approved the search.
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Such log shall be available for public inspection at reasonable times during the County’s business day in a manner similar to 1 M.R.S.A. § 408 or some other procedure promulgated by the County.
IT IS FURTHER ORDERED that the obligations of the Defendants under this Injunction are intended to conform to Fourth Amendment law governing strip searches. In the event that future decisions of the U.S. Supreme Court, the U.S. Court of Appeals for the First Circuit, or the U.S. District Court for the District of Maine hold that jails may conduct strip searches that are expressly prohibited by this Injunction, the Defendants shall have the right to petition the Court for a modification of the Injunction consistent with the above-referenced decisions. Such petition shall be decided on a determination as to whether the requested modification is in conformity with the change in law, and it shall not be reviewed under a heightened standard of review. In the event the Plaintiff class opposes such a petition through counsel, the Plaintiff class shall be awarded reasonable attorneys fees if the Plaintiff class is the prevailing party with regard to the petition.

Dated:

Gene Carter Senior United States District Judge

3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DALE DARE, on behalf of himself and on behalf of others similar situated,
Plaintiffs

v.

Civil No. 02-251-P-C

KNOX COUNTY, DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff,
Defendants
Gene Carter, Senior District Judge

ORDER ON MOTION FOR APPROVAL OF CLASS SETTLEMENT This is a class action lawsuit over strip searches of arrestees at the Knox County Jail. The Court previously certified a class and the court of appeals affirmed the certification. Tardiff v. Knox County, 218 F.R.D. 332, (D.Me. 2003), aff’d, 365 F.3d 1, 7 (1st Cir. 2004). The parties have now proposed for approval an agreement settling their dispute (Docket Item No. 351). They request that the Court approve the settlement they have proposed. The Court held a hearing on this motion on October 24, 2006.1 The

1

As a result of prior settlement negotiations of the parties in conference with Chief Judge Singal,

the class counsel filed on October 10, 2006 a proposed Final Settlement Agreement (Docket Item No. 339)

with a Motion Seeking Preliminary Approval of Class Settlement (Docket Item No. 338). The Defendants’

counsel submitted on the same date its own version of a Final Settlement Agreement (Docket Item No.

342). The Court held a conference/hearing with counsel and the parties on October 11, 2006 in open court,

it appearing that there were significant variations in the two proposals. The parties were left to resume

negotiations following the conference/hearing to see if a definitive proposed Settlement Agreement could

Court now indicates the conditions on which the Court will authorize, on subsequent
application of the parties, class-wide notice of a final settlement of the class action.
First, the Court notes that the agreement does not provide for a second
opportunity for putative class members to request exclusion as permitted by Federal Rule
of Civil Procedure 23(e)(3). The decision whether to direct a second opportunity to opt
out “is confided to the court’s discretion…. Many factors may influence the court’s
decision. Among these are changes in the information available to class members since
expiration of the first opportunity to request exclusion, and the nature of the individual
class members’ claims.” Fed. R. Civ. P. 23(e)(3), 2003 advisory committee’s note.
Several elements of the proposed settlement here counsel that putative class members
have a renewed opportunity to request exclusion from the class by opting out of it. These
include the breadth of the type of searches and actors covered by the settlement, thereby
foreclosing further litigation by members of the class; the recent development that Laurie
Tardiff was replaced as class representative; Laurie Tardiff’s objection to the terms of the
Settlement Agreement and contention that she is not bound by it; the Court’s prior
indication that it would not approve a proposed “bonus” of Fifty Thousand Dollars
($50,000.00) to be paid to Laurie Tardiff as provided for by the terms of the first
be arrived at by them. See Transcript (Docket Item No. 357). They subsequently filed the pending Settlement Agreement (Docket Item No. 351).
The situation in respect to settlement was further complicated by the position taken by the named class representative, Laurie Tardiff, at the conference/hearing that she objected to the terms of the Settlement and wished to withdraw as class representative in the action. The Court advised her to promptly consult individual counsel and on October 13, 2006 new counsel entered an appearance on her behalf (Docket Item Nos. 346 and 349). Since then, class counsel has filed a Motion to Strike Laurie Tardiff as Class Representative (Docket Item No. 350), which was subsequently withdrawn (Docket Item No. 354). A Motion is now pending, filed by class counsel, to Substitute a party, Dale Dare, as Class Representative (Docket Item No. 355) and a Motion filed by Ms. Tardiff’s personal counsel to withdraw Ms. Tardiff as Class Representative (Docket Item No. 356).
The Court scheduled all these pending matters for further conference/hearing on October 24, 2006.
2

proposed Settlement Agreements (Docket Item Nos. 339 and 342), see, Transcript, Docket Item No. 357 at 59-60; a controversy over the entry, timing and terms of the Permanent Injunction to be entered; the Parties’ preservation of a right of appeal of the settlement if an injunction at variance with that proposed by the parties is entered; and the settlement’s allocation of a recovery to each individual that does not vary by the number of times that individual was searched.
The Court will therefore refuse to approve the settlement (and will not direct class-wide notice) unless a redrafted settlement agreement affords: (1) a new opportunity for exclusion from the class at the option of all putative class members, as provided for in Rule 23(e)(3), and (2) resolution of the issues respecting the entry of injunctive relief by the parties agreeing to the Court’s entry of its Amended Proposed Permanent Injunction, see Docket Item No. 364. The Court gives notice that it will not approve a settlement agreement that contains the language in the third sentence of ¶ II.B, “In the event that the Court issues an injunctive order different than that proposed by the parties, the parties expressly reserve the right to appeal the injunctive order and the Settlement Agreement of which it is an integral part, to the U.S. [sic] Circuit Court of Appeals for the First Circuit,” (emphasis added), or language of effect equivalent to the emphasized phrase. Rather the Court will require for approval to be granted, that the Third Final Settlement Agreement provide specifically:
“The Parties understand that the Court will issue an injunction, the purpose of which will be to ensure the Defendants’ compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in the Court’s Amended Proposed Permanent Injunction Pursuant to Settlement Agreement (Docket Item No. 364), and all parties waive their rights to appeal the entry of, or terms of, this injunctive Order.”
3

See Court’s Amended Proposed Permanent Injunction Pursuant to Settlement Agreement
at 1 (Docket Item No. 364).
Otherwise, the Court finds that the notice that the parties have proposed amounts
to “notice in a reasonable manner” as required by Rule 23(e)(1)(B). If the parties file a
Third Final Settlement Agreement that suitably addresses the foregoing concerns, the
Court will:
(1) Direct class-wide notice accordingly, provided that the notice is also revised to explicitly include notice of the opportunity for, and the deadline for, requesting exclusion from the class by opting out of it;
(2) Order that any motion for attorney’s fees and nontaxable costs shall be filed by such a time that the Rule 23(h)(1) notice of the fee request can be combined with the Rule 23(e) notice of settlement and be sent to the class at the same time; and
(3) Order that counsel prepare a proposed Order to include other necessary elements or actions necessary to completion and final approval of the class settlement, such as appointment of the class administrator, deadlines for written objections and other interim deadlines.
On filing of a Third Final Settlement Agreement and upon entry of the Court’s
Order Directing Class-Wide Notice, a hearing under Rule 23(e)(1)(c) will be scheduled
by order of Court to take place on April 23, 2007 at 10:00 a.m. on whether the settlement
is fair, reasonable and adequate; whether any requests for attorney fees and nontaxable
costs should be allowed and, if so, the extent of such allowance; and resolution of any
other issues then properly before the Court. The Court will hear appropriate objections
on all those matters at that time. See Rule 23(e)(4)(A), (h)(2),(h)(3).
The Court does not intend this order to be a preliminary fairness determination.
Because a judicial determination of “preliminary fairness” unjustifiably suggests a
4

headwind against objections to the settlement agreement, the Court will, if the Third Final Settlement Agreement is filed, determine whether the then proposed Third Final Settlement Agreement satisfies the Court’s requirements herein for approval of the settlement, deserves consideration by the class and whether the notice is appropriate. The Court reserves all determinations of the proposed settlement’s fairness and reasonableness to its consideration of the relevant facts on the record after the April 23, 2007 hearing.
The Court has this day granted Plaintiff, Laurie Tardiff’s Motion to Withdraw as Class Representative (Docket Item No. 356) and Plaintiff Class’s Motion to Substitute Dale Dare as Class Representative (Docket Item No. 355). Ms. Tardiff remains as a class member. The Court makes no decision and intimates no opinion as to her rights in this litigation, whether she should remain a member of the class, or whether she is subject to being bound by any Settlement Agreement proposed herein or that may be finally approved by the Court. Her rights and the rights of other parties in respect to all such matters in this case are reserved for future determination, as may be sought by the parties. The Court’s ultimate resolution of any such issues so generated shall not be a basis for any party or class member to challenge, inter partes, the viability or enforceability of the Third Final Settlement Agreement of the class action, if it is finally approved by the Court.
It is ORDERED that counsel for the class and for the Defendants advise the Clerk on or before November 3, 2006 if they will pursue the filing of a Third Final Settlement Agreement herein, and if they elect to do so, cause said document to be docketed on or before November 14, 2006, in default of either event the case will be set
5

for jury selection and trial on the remaining two liability issues only by further order of Court.
/s/Gene Carter________________ GENE CARTER Senior United States District Judge Dated at Portland, Maine this 24th day of October, 2006.
6

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, on behalf of herself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, et al.,

)

)

Defendants

)

Docket No. 02-251-P-C

FINAL SETTLEMENT AGREEMENT I. SUMMARY
The parties agreed to settle this case on Friday, September 29, 2006 at the Judicial Settlement Conference with Chief Judge Singal. This case has been in litigation for four years. It has been to the First Circuit Court of Appeals where the Court’s Certification Order of November 5, 2003 was upheld and then through extensive discovery culminating in partial Summary Judgment in favor of the Plaintiff on issues of liability. In April of 2005, the Court rolled back the Summary Judgment Order to leave the issue open with respect to custom and practice allegations relating to strip searches conducted by the County during the period September 1, 2002 through December 31, 2004, inadequate training of guards throughout the entire class period, November 19, 1996 through December 31, 2004 and supervisory responsibility of Sheriff Davey for the

1

period September 1, 2002 through December 31, 2004.
On September 19, 2006, the Court rebifurcated issues of liability and damages and then decertified the class for purposes of determining damages through individual trials. In the light of the complications decertification posed for trial including inordinate expense, time and risk to both parties, the parties agreed to a settlement conference with Chief Judge Singal on Friday, September 29, 2006. That settlement resulted in five point agreement wherein the Defendants will pay three million dollars ($3,000,000.00) to the case settlement fund; Plaintiffs agree to a 30% legal fee including out-of-pocket disbursements to be paid out of the fund; the parties will file a Joint Motion for Class Recertification only for purposes of facilitating settlement and disbursing the balance of the settlement fund to qualifying class members; the Court will issue an injunction and, the parties will submit, using the Second Amended Settlement Agreement approved in Nilsen v. York County, (02-CV-212-P-H) their final written Settlement Agreement. (Docket Item No. 318, supra).
Pursuant to the Court’s October 4, 2006 “Remark” (Docket Item No. 334), the parties will either jointly agree on language to be included in the injunctive Order, or will separately submit proposed orders to the Court.
The Agreement also settles all claims of the class, including, without limitation on the generality of the foregoing, claims of the class representatives and absent class
2

members who have not opted out for compensatory damages, punitive damages, attorneys fees and costs, and interest by establishing a common fund of Three Million Dollars ($3,000,000.00), to be shared among participating class members after payment of attorneys fees, costs, claims administration expenses, and class representative bonuses. Under this Agreement, class members will receive one payment regardless of the number of times that they were booked into the jail and searched during the class period. II. TERMS A. Procedural History
1. Plaintiff filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted Plaintiff’s motion for class certification and certified this case as a class action under Fed.R.Civ.P. 23(b)(3). The class was defined as follows:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or (2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or (3) while waiting for an initial court appearance on charges that did not involved a weapon, drugs, or a violent felony; or (4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.
3

The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit.
2. Plaintiffs alleged that all arrestees or pre-trial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of the booking procedure. The Defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements. B. Agreement
1. The parties agree that the class period begins on November 19, 1996, and ends December 31, 2004.
2. Knox County agrees that it will adhere to the permanent Injunctive Order issued by the Court, and to any subsequent modifications to that Order.
3. An approved class action notice was sent to potential class members at their last known addresses and notices were published as required by the Court after class certification. No class members asked to be excluded by the opt out deadline.
4. The Defendants will pay Three Million Dollars ($3,000,000.00) to settle all claims brought by Plaintiff and class in this action including claims for attorneys’ fees, costs, administrative costs, and interest by check made out to the “Tardiff Settlement Fund” and delivered to class counsel no later than November 15, 2006. Defendants agree to pay interest at the current money market rate of 4.55% compounded daily for each day it fails to make payment after November 15, 2006. If Defendants fail to make payment
4

on or after January 15, 2007, they will pay interest at the rate stated in Paragraph 9, infra. 5. The parties agree and acknowledge that the Defendants have denied liability in
whole and that the payment was made and other agreements contained herein were given without admission of liability, which is expressly denied, and which payment was made and other agreements were given by the Defendants solely for the purpose of buying their peace and freedom from litigation. No language contained in this Settlement Agreement or any language contained in any motions for approval of settlement filed by Plaintiffs or in any orders by the Court approving or denying either preliminary or final approval to the Settlement Agreement shall in any way be construed as acknowledgments or admissions of liability, all of which are expressly denied by the Defendants.
6. The Defendants and their counsel agree to provide reasonable assistance to facilitate the administration of this settlement including providing access to data and documents necessary to determine class membership if a person disputes denial of a claim by the claims administrator.
7. The Defendants understand that this agreement will require approval of the Court. The Defendants will ask the Court to approve the terms of the settlement.
8. If Plaintiff has to incur any additional attorney time or costs to seek collection of the settlement fund because of a default by the Defendants in the timely performance of its obligations to pay under this Agreement, the Defendants may be responsible for payment of reasonable attorneys fees and costs under 42 U.S.C. § 1988. Any request for such additional fees and costs shall be by application to the Court with opportunity for
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objection by the Defendants. 9. Class counsel will establish the “Tardiff Settlement Fund” as a qualified
settlement fund. Once the Court grants final approval of the settlement, the entire fund and all interest or income resulting from the investment of the fund shall be part of the fund. If the Defendants do not pay all or part of their obligation on time, the amount owed by that Defendant will accrue interest at the rate of twelve percent (12%) per year, compounded daily. Interest will only apply to the unpaid portion of the Defendant’s obligation.
10. The Settlement Fund and any money earned by the fund will be invested in the Marshall Money Market fund which is AAA rated by Fitch, unless and until otherwise ordered by the Court. Class Counsel, Class Representatives, Defendants and Defense Counsel shall not have any responsibility or liability for the investment of the Settlement Fund. If the Court does not give final approval to the settlement, the Plaintiffs will return the amount paid to the Defendants. III. COURT SUPERVISION
1. The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.
2. Any deadlines, dates, or other details in this Settlement Agreement may be changed by the Court on a showing of good cause.
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IV. HEARING 1. The Court has scheduled a hearing for 9:30 a.m., October 11, 2006, to decide
whether to grant approval to the settlement, recertify the class for settlement purposes and to issue a permanent Injunctive Order. If approval is granted, the parties will begin to implement the settlement. The Defendants will make their payment as specified hereinabove, and the Plaintiffs will send the approved notice to the class.
2. The Court will hold a final fairness hearing to decide whether to grant final approval of settlement on April 2, 2007.
3. If the Court grants final approval of the settlement, the Tardiff Settlement Fund will belong to the Plaintiff and the class, and the Defendants will no longer have any right to, title to, or interest in the funds. The funds will then be distributed pursuant to orders of the Court. V. CLAIMS ADMINISTRATOR
1. Class counsel requests that the firm of Analytics, Inc. of Chanhassen, Minnesota to be approved by the Court as Claims Administrator. The Declaration of Richard Simmons and the qualifications of Analytics, Inc. are attached hereto as Exhibit E.
2. Class counsel recommends that the Claims Administrator be permitted to designate an attorney as agent in Knox County to distribute checks to any claimants who wish to pick up their check. This agent will be paid by the Claims Administrator for performing this service.
3. The Claims Administrator will administer notice to class members in the
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manner prescribed by the Court; shall accept and docket all claims; shall send all notices that a claim has been accepted or rejected to class members; shall resolve any appeals of claim denials; shall calculate the amount of each claim pursuant to the formula set out in this Agreement; and shall report to the Court as necessary, including providing a final report.
4. Class counsel will oversee settlement administration and will provide direction to the Claims Administrator as needed. VI. NOTICE, OBJECTIONS, AND CLAIM
1. Class counsel will send a Notice of Class Action Settlement and of the Hearing to Approve the Settlement (“Notice of Settlement”), a Settlement Claim Form, and a Frequently Asked Questions sheet, by first class mail postage prepaid to all potential class members, whose addresses are known to class counsel, at their last known address within three weeks after the Court’s order granting preliminary approval. If any mail is returned by the post office with notice of a more current address, class counsel will resend the notice to that address. Class counsel is not required to make any further efforts to send mail directly to class members. A Notice of Settlement and Settlement Claim Form will be made available to anyone who requests such information. Claim Forms will be available to be downloaded from the web site or on request to the Claims Administrator including through a toll free number.
2. The Notice of Settlement will include the terms of the settlement (attached as Exhibit A) and the class member’s right to contest the settlement. This Notice includes
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Frequently Asked Questions which explain the settlement terms and answer anticipated questions. Attached as Exhibit F is the envelope to be used for mailing the proposed Notice of Settlement.
3. The Settlement Claim Form requests the class member’s contact information, affirmation that he or she meets the class definition, instructions for check delivery, and a Form W-9. The proposed settlement claim form is attached as Exhibit B.
4. Class counsel will also publish notice of the settlement in the Portland Press Herald, Rockland Courier Gazette and the Bangor Daily News. This notice is attached as Exhibit C. The Defendant agrees to post the notice for publication attached as Exhibit C in the intake/booking area as well as in one area frequented by inmates in each of the separate pods at the jail. The notices will be posted as soon as the Court approves the mailing of a class wide notice of proposed settlement attached as Exhibit A, and will remain up until the last day that the settlement claim forms can be filed. In addition, the Defendant has agreed to make available during the same timeframe defined in the prior sentence, to inmates (or anyone else) who requests it, a copy of the Notice of the Settlement attached as Exhibit A and counsel for the class will provide the County with 500 copies.
5. In addition to the legal notices, class counsel will issue a press release informing the public of the settlement. The press release is attached as Exhibit D.
6. Class counsel, through the Claims Administrator, will establish a website (www.knoxcountyjailclass.com) which will include the Notice of Settlement (Exhibit A)
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and the Settlement Claim Form (Exhibit B). 7. The Claims Administrator will send a claim form to anyone who requests one
before the time for filing claim forms has expired. In addition, the Claims Administrator will maintain updated documents regarding this settlement on the website including a claim form which can be printed and mailed. The Claims Administrator will also maintain a toll-free number for claimants to call with questions about the claim form. This number will be operational for at least five (5) months.
8. In order for a class member to claim a share of the settlement, he or she must submit a valid and complete Settlement Claim Form postmarked no later than January 5, 2007. This deadline is called the “Claims Deadline”.
9. In order for a class member to object to the proposed settlement, he or she must submit written notice of the objection to the Claims Administrator. In addition, an objector may also appear in person or through counsel at the final fairness hearing when the objection will be considered by the Court. The Claims Administrator will forward all letters of objection to the Court and to counsel for all parties. (The class member may also submit a Settlement Claim Form if he or she wishes to be eligible to share in the settlement should it be approved despite his or her objection.)
10. Settlement Claim Forms received by the Claims Administrator within two weeks after the Claims Deadline will be treated as if postmarked by the Claims Deadline. This two-week grace is the Amnesty Period.
11. Notwithstanding paragraph 10 above, claim forms will be treated as filed in a
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timely manner if either (1) the form is received by the Claims Administrator by no later than January 5, 2007, or (2) if a request to permit additional time to file a claim form is received by the Court by no later than January 5, 2007 and the related claim form is received by the Claims Administrator by no later than January 19, 2007. Claim forms received after this date will be denied as untimely. VII. APPROVALS AND APPEALS
1. The Claims Administrator will review each claim form to determine that the claimant is a class member by confirming (a) that the Settlement Claim Form is timely and valid, (b) that the information on the form is consistent with available booking data previously provided by the Defendants, and (c) that the Form is completely filled out and signed.
2. The Claims Administrator may, in its discretion, waive a technical defect in the Claim Form to achieve substantial justice.
3. If the booking data indicates that the person does not meet the class definition, the Claims Administrator will send a Notice of Claim Denial to the claimant. The denial notice will, if possible, indicate the reason or reasons for the denial. These would include (a) not at the jail during the class period, (b) no booking for an offense within the class definition, or (c) that the person was not strip searched while being held awaiting bail or a first court appearance. Because the booking data is sometimes inaccurate or nondescriptive as to whether a person was strip searched, the Claims Administrator may accept the Claimant’s affirmation of strip search.
11

4. In order to object to the Claims Administrator’s determination that he or she is not a class member, a claimant must file a written notice of appeal to the Claims Administrator postmarked no later than two (2) weeks after the date of the mailing on the Notice of Claim Denial. He or she may include written documentation that shows that he or she is a class member, and he or she may also include a written statement. Those objections claiming that a person who otherwise met the class definition were strip searched will be reviewed against available records of the Defendants to determine if the person was strip searched. The Claims Administrator will make a determination on each appeal no later than eight (8) weeks after the deadline for class members to file such appeals. The Claims Administrator will inform the class member in writing of their determination and will provide copies to all counsel. Rulings by the Claims Administrator will be final and binding, except that a Claimant is allowed to appeal a denial of a claim directly to the Court.
5. The Claims Administrator will send a Notice of Claim Approval (“Notice of Claim Approval”) to each approved claimant promptly but in no event later than one week after the Court grants final approval of the settlement.
6. A claimant who used a different name at booking must present documentation establishing that he or she is the person referred to in the booking records.
VIII. EXPENSES AND ATTORNEYS FEES 1. Administrative costs, including the Claims Administrator’s fees and expenses,
12

will be paid from the Settlement Fund. 2. Class counsel ask the Court to approve payment of Plaintiff’s attorneys fees
and out-of-pocket costs in the amount of thirty percent (30%) of the settlement fund. These fees and costs shall be paid at the same time as the distribution of the Settlement Fund to class members. In addition, class counsel will ask the Court to deduct from the settlement an amount sufficient to pay the costs of further litigation and the expenses of claims administration. IX. DISTRIBUTION TO CLASS MEMBERS
1. Class counsel recommends to the Court that the Claims Administrator pay bonuses from the Settlement Fund to compensate the class representative for the time that she spent on this case and her loss of privacy as a result of serving as a Class Representative. Class counsel also recommends a bonus to compensate the 19 class members whose depositions were taken by defense counsel for the time they spent. Class counsel recommends a bonus of $50,000.00 to Laurie Tardiff, the class representative. Class counsel recommends a bonus of $500.00 to each of the 19 class members who were deposed by the Defendants. These checks will be issued at the same time as payments to class members.
2. Class members will receive payment from the common fund after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants.
3. The Claims Administrator will calculate the amount of money due each class
13

member by providing one share for every class member with an approved claim. The Claims Administrator will total the number of approved shares and then divide the amount remaining in the Settlement Fund (after the payments made as provided in Paragraph 2 above) by the number of shares to determine the amount each approved participating class member will receive.
4. Class members will receive one payment even if they were booked into the jail and strip searched more than one time during the class period.
5. Each class member’s check will be made payable only in his or her name or, upon the death of a class member, to the personal representative of the deceased class member’s estate or the person filing an affidavit in compliance with the Maine Procedure for Collection of Personal Property by Affidavit of the Rightful Heir under 18-A M.R.S.A. § 3-1201, or the equivalent procedure of the law of another state that governs the estate of the deceased class member. A check will be mailed to the class member at their mailing address or it may be picked up. Any change of address request must be made in writing and must be signed by the claimant.
6. If a participating class member is confined in a prison, hospital or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the class member makes other acceptable arrangements in writing with the Claims Administrator. X. POST-DISTRIBUTION ADMINISTRATION
1. Marshall and Ilsley Bank, a nationally chartered bank, will prepare all Forms
14

1099 for class members who receive a settlement check during the bank’s next regular tax-form processing following distribution. The Claims Administrator will prepare all other necessary tax forms relating to the Settlement Fund account.
2. The Claims Administrator will provide a report to the Court and to counsel for all parties accounting for the distribution of settlement funds, including attorneys fees and expenses, once the distribution is complete.
3. Any balance in the settlement fund after all settlement checks have been distributed and all bonuses, expenses, and attorneys fees have been paid and will be distributed under the Cy Pres doctrine on order of the Court. XI. DECEASED CLASS MEMBERS
1. If a class member is deceased, an authorized representative may file a Settlement Claim Form on behalf of the estate. However, the representative must provide to the Claims Administrator documentation that an estate has been established in accordance with the law and with Paragraph IX (5), above. XII. RELEASE AND AGREEMENT TO DEFEND, INDEMNIFY AND HOLD HARMLESS
1. In consideration of the settlement amount, all Defendants, including individual defendants in both their official and individual capacities, and the Maine County Commissioners Association Self-Funded Risk Management Pool will be released from all liability for the class members’ claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members
15

who requested exclusion, opted out, and filed a claim within the applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that their settlement does not release any other claims, such as those involving alleged or wrongful conduct such as wrongful arrest, excessive force, or searches that were not part of the intake procedure (such as strip searches after a lockdown).
2. In further consideration of payment of the settlement amount, each class member shall be obligated to satisfy all liens, subrogation interests or claims of any doctor, hospital, insurance carrier, state or governmental agency, or any other person, firm, or corporation, which have been made or may in the future be made against the payment to that class member described herein, or against any Defendant, arising out of the claims, demands, actions or causes of action set forth in the First Amended Complaint and released as part of this Settlement Agreement. Each class member further agrees to hold harmless and to defend and indemnify the Defendants, including their officers, officials, employees, attorneys, agents, or any of them, to the fullest extent possible, from and for any claims, demands, actions, causes of action, suits, judgments, costs or expenses of any kind, brought by that class member as a result of any search within the scope of this class action as certified by the Court in any orders approving this Settlement Agreement, whether or not the class member actually made a claim, except any class
16

member who opted out of the settlement.

XIII. EXHIBITS

The following exhibits are attached to this Agreement:

Exhibit A - Notice of Settlement

Exhibit B - Settlement Claim Form;

Exhibit C - Notice of Settlement to be published in newspaper;

Exhibit D - Press release; and

Exhibit E - documents regarding Analytics, Inc., the proposed Claims

Administrator

Exhibit F – Postage Paid envelope

Dated:

_____________________________ Sumner Lipman, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated:

______________________________ Robert Stolt, Esq. Attorney for Plaintiffs Lipman, Katz & McKee 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051

Dated:

_____________________________ Dale Thistle, Esq. Attorney for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953
17

Dated: Dated: Dated:

______________________________ Peter T. Marchesi, Esq. Attorney for Defendants Wheeler & Arey, P.A. 27 Temple Street, P.O. Box 376 Waterville, ME 04903-0376
_____________________________ John Wall, Esq. Attorney for Defendants Monaghan Leahy LLP P.O. Box 7046 Portland, Maine 04112-7046
____________________________ George Dilworth, Esq. Attorney for Defendant Davey McCloskey Mina & Cunniff LLC 12 City Center Portland, ME 04101-4006

18

UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, individually, and )

on behalf of others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

KNOX COUNTY, et al.,

)

)

Defendants.

)

Civil No. 02-251-P-C

CERTIFICATE OF SERVICE

I hereby certify that on October 10, 2006 I electronically filed the Final Settlement Agreement With The Clerk Of Court Using The CM/ECF System, Which will send notification of such filing(s) to the following:

Peter Marchesi, Esq.- pbear@wheelerlegal.com

John Wall, Esq. – Jwall@monaghanleahy.com

George Dilworth, Esq. – tdilworth@lawmmc.com

and I hereby certify that on October 10, 2006, I mailed the above-mentioned

documents by U.S. Postal Service to the following non-registered participant(s):

None

Dated: October 10, 2006

____s/Robert J. Stolt____________

Robert J. Stolt, Esq.

19

LIPMAN, KATZ & McKEE, P.A. 227 Water Street, P.O. Box 1051 Augusta, ME 04332-1051 (207) 622-3711
20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Tardiff v. Knox County Civil Action No. 02-251-PH
You could get a payment from a $3 million dollar class action settlement if you meet all of the following conditions:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004
2. You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs, weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to Suspect possession of hidden contraband.
A federal Court authorized this notice. This is not a solicitation from a lawyer.
• A $3 million settlement has been proposed in a class action lawsuit about alleged illegal strip searches that took place when people were strip searched at the Knox County Jail while being held prior to trial.
• The settlement fund will pay cash to those who submit valid claims after deducting attorney’s fees, and the costs and expenses for this case.
• The settlement prohibits the Knox County Jail from continuing the policy, custom and practice of strip searching people held prior to trial, charged with crimes not involving drugs, weapons or a violent felony.
Your legal rights are affected if you act or do not act. Please Read this Notice Carefully
You are receiving this notice because records show that you may be a class member. To see if you qualify, you must submit a complete Settlement Claim Form, postmarked by January 5, 2007, to:
Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006
If you submit a claim form and qualify as a class member, you will share in this settlement. The amount of money you will receive depends on how many people submit claim forms. The money will be divided by the number of claims. Lawyers for the plaintiffs believe that over seven thousand people are eligible members of the Class.
THESE ARE YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: Submit a Claim Form This is the only way to get a payment. Remember: Claim Forms
postmarked after January 5, 2007 will not be considered for payment.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
1

Object Do Nothing

You must write to the Court explaining why you believe the settlement is not fair by January 19, 2007. Second, you must appear in Court at the Fairness Hearing on April 2, 2007. Third, you must also submit a claim form.
You get no payment. You will still be bound by the settlement and you give up your right to sue the defendant on these claims later.

THE SETTLEMENT BENEFITS – WHAT YOU GET AND HOW TO GET IT
How much will my payment be?
We do not know the amount of the payments. If you are eligible you will get a payment for only one strip search. The amount will depend on how many people submit claim forms. The amount per person will decrease as the number of forms submitted increases. Each participating person will receive an equal amount.
The settlement money will be distributed after payment of attorneys’ fees, expenses and bonuses. Counsel requests a 30% attorney’s fee, which includes all costs, expenses and disbursements. Class counsel requests payment of a bonus to the class representative and class members who were deposed to compensate them for the time they spent helping to bring about this settlement and for the loss of privacy to the class representative. The requested bonuses range from $500.00 for participating in a deposition to $50,000.00 for serving as class representative. The total amount of the requested bonuses is $59,500.00, less than 2% of the total settlement.
How can I get a payment?
You must fill out the Settlement Claim Form completely and mail it to the Claims Administrator. A Claim Form is included with this notice. You can also obtain a Claim Form from the Settlement Website at www.knoxcountyjailclass.com. The envelope must be postmarked no later than January 5, 2007; if it is not, your claim will be denied.
The settlement check will be written in your name with your social security number. Your check will be sent to your mailing address. If you move, you must notify the Claims Administrator in writing of your new address or the check will be sent to your old address.
When will I get my payment?
You cannot be paid until the settlement is approved by the Court and any appeals are over. The Court will hold a hearing on April 2, 2007, to decide whether to approve the settlement. If the Court approves the settlement and all appeals are completed promptly, you should receive your settlement check by June 1, 2007, unless there are any unforeseen delays.
Will I have to pay taxes on my payment?
You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Claims Administrator will send you a 1099 Form. (If you have questions about backup withholding, Form W-9 or Form 1099, call your tax preparer or the IRS Information Reporting Program Customer Service Section, toll free at (866) 455-7438, 8:30 am to 4:30 p.m., Monday through Friday.)
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
2

What should I do if I do not want to participate in the class action?
If you do not wish to participate in the class action, do nothing. If you do not send in a claim form you will not be a participating Class Member and you will not receive a payment. You will also be barred from filing a case on these claims in the future.
WHO IS IN THE SETTLEMENT
What is a Class Action and who are Class Members?
In a class action, one or more people, called Class Representatives (in this case, Laurie Tardiff), sued on behalf of all people who have similar claims. All of the people who were similarly treated are known as the Class or Class Members. One court resolves the issues for all Class Members.
How do I know if I am a Class Member and part of the settlement?
The Court has ruled that you are a Class Member if you meet all four factors below:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004. 2. You were held at Knox County Jail after an arrest but before a bail hearing or first court
appearance. This includes arrests on default and other warrants. 3. You were not charged with a crime involving drugs or weapons or a violent felony. 4. You were strip searched before a first court appearance or while awaiting bail.
NOTE: You are not a class member if you were either (1) strip searched while you were serving a sentence, (2) you were strip searched after an evaluation which determined there was reason to suspect possession of hidden contraband., or (3) you were arrested for and/or charged with a crime involving drugs, weapons or a violent felony.
What crimes are considered to be violent felonies?
The following crimes are violent felonies: aggravated assault, arson, assault on an officer, criminal restraint, elevated aggravated assault, gross sexual assault, kidnapping, manslaughter, murder, rape, and robbery. This list is non-exclusive, and other felony level crimes may be determined to be “violent”.
What if I was arrested for more than one crime?
The most serious charge for an arrest will determine your class membership. If any one of the charges was a crime involving weapons or drugs or was a violent felony, you are not a class member for that arrest. You might be eligible for another arrest.
What if I was arrested on a default warrant of violation of probation or parole?
You are a class member if you were arrested on a default or other warrant or for violating the terms of probation or parole so long as the crime for which you were on probation did not involve weapons, or drugs, or a violent felony.
3
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

Who makes the final decision about who qualifies as a Class Member?
The Class Administrator makes the final decision about who qualifies as a Class Member subject to Court review. The booking records kept by the Knox County Jail will help determine if you are a class member. You can help by listing the date or dates when you feel you met the class definition. If the records do not show that you fit the class definition, your claim will be denied. You can appeal your denial to the claims administrator by sending documentation and information regarding the dates you believe you were held and strip searched. A decision by the Claims Administrator can be appealed to the Judge. (If you are not a class member, you are not bound by this settlement. You can take action as an individual if you wish.)
What if I was arrested and strip searched more than once, can I still participate?
Yes. If you were arrested and brought to the Jail more than once during the class period you are a member of the class and can recover money. You can only recover one payment, however, as you will not be provided with extra payments if you were arrested and strip searched at the jail more than one time.
What if I was at the jail on or before November 18, 1996 or after December 31, 2004?
The time period for being a class member is based on the legal requirement that a case must be filed within a certain time period; this is called the statute of limitations. The law in Maine only allows a person to bring a claim within six years after his or her rights were violated. Because this case was filed by Laurie Tardiff on or about November 19, 2002, class members include anyone strip-searched in the six years before that date. If you were strip-searched on or before November 18, 1996, it may be too late to bring a lawsuit. The time period for the class ends on December 31, 2004. If you were stripsearched after this date, that search is not a part of this lawsuit; you must file your own lawsuit.
What if I was found not guilty of the crime for which I was arrested?
You are entitled to the same settlement amount whether you were found guilty or not guilty of the crime.
What if I am still unsure about whether I am part of the settlement?
If you are still unsure as to whether you are a member of the class, you may fill out and return the Settlement Claim Form. If the settlement is approved, you will be notified if you do not qualify. If you qualify you will receive a check. You may also visit the settlement website on the Internet at www.knoxcountyjailclass.com or call (877) 797-5732 to speak to a Settlement Administrator or Class Counsel to answer your questions.
How did the lawyers in this case find me and how can I protect my privacy?
After you were arrested, you gave your name and address at the Knox County Jail during booking. This information was given to the lawyers for the plaintiffs by Knox County pursuant to a court order. The lawyers for the plaintiffs will do everything they can to protect your privacy. Only the lawyers in the case and the Court appointed Claims Administrator will know your name and, in most cases, only the Claims Administrator will see your Claim Form.
4
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.

THE COURT’S FAIRNESS HEARING
What is a Fairness Hearing?
The Court will hold a hearing to decide whether to approve the settlement. The Court will consider whether the settlement is fair, reasonable and adequate. The Court will also decide whether to approve the request for attorney’s fees, costs, expenses and the bonuses to class representatives. If the Court approves the proposed settlement, it will affect all class members.
When and where is the hearing?
The Hearing will be at tba a.m./p.m. on day, April 2, 2007 in the U.S. District Court of Maine, 156 Federal Street, Portland, ME.
Do I have to come to the hearing?
Class counsel will answer any questions the Court may have. You are welcome to come at your own expense. If you object to the settlement and you want to explain the objection to the Court you can attend the hearing or hire your own lawyer to attend for you.
May I or my lawyer speak at the hearing?
Yes, but only if you or your lawyer filed a written objection before the hearing.
OBJECTING TO THE SETTLEMENT
What if I think the proposed settlement is not fair? What can I do?
If you wish to object to the proposed settlement, you must state your objections to the Court in a letter sent to the Tardiff Settlement Claims Administrator, postmarked by January 19, 2007. The Claims Administrator will forward your objection to the Court and to the lawyers for the plaintiffs and for Knox County. If you want to explain the written objection to the court you, or a lawyer on your behalf, can appear in the U.S. District Court of Maine, 156 Federal Street, Portland, ME on April 2, 2007 to present your objections.
You may object to the proposed settlement and still be eligible to receive a payment. You must submit a valid Settlement Claim Form even if you object to the settlement, if you wish to claim money should the settlement be approved.
THE LAWYERS IN THIS CASE
Who are the lawyers in this case?
The lawyers for the plaintiffs are Robert Stolt, Esq., and Sumner Lipman, Esq., Lipman, Katz & McKee, 227 Water Street, P.O. Box 1051, Augusta, ME 04332-1051, and Dale Thistle, Esq., 103 Main Street, P.O. Box 160, Newport, ME 04953.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
5

Defendant Knox County is represented by attorney Peter Marchesi, Wheeler and Arey, P.A., 27 Temple Street, PO Box 376, Waterville, ME 04901, and John J. Wall, III, Monaghan Leahy LLP, 95 Exchange Street, PO Box 7046, Portland, ME 04112-7046. How will the plaintiffs’ lawyers be paid? The lawyers for the plaintiffs will request that the Court award an attorney’s fee of 30% of the settlement fund, which will include out-of-pocket costs.
OTHER INFORMATION If you wish to view the Court file or a copy of the proposed settlement agreement, you may go to the Clerk of the U.S. District Court of Maine, 156 Federal Street, Portland, ME during regular business hours. You can also view the settlement papers on the web at www.knoxcountyjailclass.com. To obtain more information or ask questions about the settlement, you can call the Claims Administrator toll-free at (877) 797-5732 ; write to the Claims Administrator at Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006; or visit the Internet website at www.knoxcountyjailclass.com. On the website you will find answers to frequently asked questions, a downloadable claim form, plus additional information that may help you determine if you are a Class Member.
Important – Please do not call the Court directly with questions about the settlement.
Questions? Call Toll Free (877) 797-5732 or visit www.knoxcountyjailclass.com.
6

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

LAURIE TARDIFF,

)

Plaintiff

)

)

v.

)

)

KNOX COUNTY, et al

)

)

Defendants )

)

Docket No. 02-251-PC
CLAIM FORM Must be postmarked by January 5, 2007

Late claims will be denied. You must complete and mail this Claim Form, postmarked by January 5, 2007 to: Tardiff Claims Administrator
P.O. Box 2006 Chanhassen, MN 55317-2006

Please see below to learn how to file for a deceased class member.

STEP ONE - PROVIDE YOUR BASIC INFORMATION. Please note that it is your responsibility to notify the Claims Administrator in writing at the above address if the address you provide changes.

First Name: ____________________ Middle Initial: ____ Last Name: _________________________________

Address: ______________________________ City: ____________________ State: ______ Zip Code: _______

Home Phone: (__________) ____________________________________ Work Phone: (__________) __________________________________ Cell Phone: (___________) ____________________________________

E-mail: __________________________ SSN: _________________ Date of Birth: ______/_______/________

Provide the following information about someone who will always know how to contact you.

Name: ___________________________ Relation to you: __________________________________________

Address: ______________________________ City: ____________________ State: ______ Zip Code: _______

Home Phone: ( )

Work Phone: ( )

Cell Phone: ( )

FILE FOR A DECEASED CLASS MEMBER:
You may submit a Claim Form on behalf of a deceased class member. To do so, in Step One, give the class member’s name and your own contact information. In Step Three, sign your own name and note your relationship to the class member. A settlement check can only be issued to a deceased class member’s estate. To participate for a deceased class member, you must be appointed administrator or executor of the class member’s estate, and you must send documentation of your appointment to the Claims Administrator by [date], or the claim will be denied.

CONTINUED ON BACK

Please Check One Box To Indicate How Your Check Should Be Handled If Your Claim Is

Approved:

□Mail the check to my □Hold the check for me to pick up in person. □Mail the check to this address:

address above.

Address: _____________________

If you do not select any If you select this option, a letter to the address

_____________________

of these options, the

you entered for yourself above will inform you

City: ________________________

check will be sent to

of when and where to pick up the check.

State: ________ Zip Code: ______

your address.

You will need to provide a reliable photo ID

when you pick up your check.

STEP TWO - PLEASE ANSWER THE FOLLOWING QUESTIONS TRUTHFULLY.

If you do not select Yes or No, then the form will be treated as if you selected No.

(1) I was held at the Knox County Jail between November 19, 1996, and December 31, 2004, waiting for bail to be set or for a first court appearance after I was arrested on charges that did not involve a weapon or drugs or a violent felony; or while waiting for a first court appearance after being arrested on a default or other warrant that did not involve a weapon or drugs or a violent felony.
□ Yes □ No
(a) If you answered Yes above, were you strip searched at that time?
□ Yes □ No
(b) It will help us if you can list the date or dates when the above happened to you and you feel you fit the class definition. (This is optional. Answer to the best of your ability.): ______________________________________________________________________________ (attach an additional sheet if necessary)
STEP THREE – SUBSTITUTE W-9 REQUEST FOR TAXPAYER IDENTIFICATION NUMBER.
(This should be your Social Security Number, unless you have been given a different number by the IRS for this purpose.)
□□□ - □□ - □□□□
(9 digits) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the IRS that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding.

If you have been notified by the IRS that you are subject to backup withholding, you must cross out the word
“not” and check here. □

STEP FOUR - PLEASE SIGN UNDER PENALTY OF PERJURY THAT ALL OF THE INFORMATION YOU PROVIDED IN THIS FORM IS TRUE AND ACCURATE TO THE BEST OF YOUR KNOWLEDGE AND BELIEF.

It is important that your answers are truthful. If you sign this and you know that the statement is not true, you can be charged with perjury pursuant to 18 U.S.C.A. § 1621, 28 U.S.C. § 1746.

Under penalty of perjury, I certify that all of the information provided on this form is true and correct:

___________________________________________ (Signature)

___________________ (Date)

STEP FIVE - MAIL THIS FORM, POSTMARKED BY _________________. TARDIFF CLAIMS ADMINISTRATOR P.O. BOX 2006 CHANHASSEN, MN 55317-2006

KNOX COUNTY JAIL
CLASS ACTION SETTLEMENT
A federal court authorized this notice. This is not an advertisement from a lawyer.
You could get a payment from a $3 million class action settlement if you meet ALL of the following conditions:
1. You were held at the Knox County Jail after November 19, 2006 and December 31, 2004,
2. You were held at Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs or weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to suspect possession of hidden contraband.
To see if you qualify, you must submit a complete Settlement Claim Form, postmarked January 5, 2007. You may obtain the Form by writing to Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006 or downloading the form at www.knoxcountyjailclass.com.

PRESS RELEASE

Date: Contacts:

Attorney Robert Stolt (207) 622-3711 (Plaintiffs’ lawyer) Attorney Dale Thistle (207) 368-7755 (Plaintiffs’ lawyer

Court Approves Notice to Class of Strip Search Settlement

Portland, ME— Today U.S. District Court Judge Gene Carter approved notice to class members of the settlement of a class action on behalf of people who alleged that they were illegally strip searched at the Knox County Jail while being held prior to trial. Knox County has agreed to pay $3 million dollars to settle the case.

As a result of this ruling, the claims administrator will send notice of the settlement and a claim form to class members. The Court has scheduled a final hearing on the fairness of the settlement to take place on April 2, 2007. If the Court grants final approval, money will be sent to those class members who submit claim forms.

The amount of money class members will receive depends on how many people submit claim forms. The money will be divided by the number of claims. The settlement fund will also pay for attorney’s fees and the costs of the case and claims administration. Plaintiffs’ attorney’s will seek a fee of 30% of the settlement fund.

A person is a class member if he or she was arrested only for crimes that did not involve drugs, or weapons, or violent felonies, and was at the Knox County Jail before his or her first court appearance, on or after November 19, 1996 and on or before December 31, 2004. Class members will need to submit a claim form by January 5, 2007 in order to obtain a share of the settlement. A copy of the claim form may be obtained from www.knoxcountyjailclass.com or by writing to Tardiff Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006.

The case is Tardiff v. York County, Civil Action Number 02-251-PH.

United States District Court District of Maine
POSTMASTER: IF UNDELIVERABLE, PLEASE RETURN TO: Claims Administrator PO Box 2006 Chanhassen, MN 55317-2006
IMPORTANT:
Notice of Class Action Lawsuit You may be eligible for a Settlement Payment

Time Sensitive Material. Open Immediately.

Please Place Stamp Here

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, on behalf of herself and )

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, et al.,

)

)

Defenda

nts

)

Docket No. 02-251-P-C

ORDER1 Upon consideration of the Plaintiffs’ Consent Motion for Preliminary Approval of Class Settlement filed on October 3, 2006, the preliminary hearing on that motion on October 11, 2006 and good cause having been shown, this Court issues the following orders: 1. The Settlement Agreement combined with the Court’s Order of September 29, 2006. 2. The Court approves the following exhibits, which were attached to the Settlement Agreement: the notice of class action settlement attached as Exhibit A, the version of the settlement claim form attached as Exhibit B; the notice for publication attached as Exhibit C; the press release attached as Exhibit D; and the envelope attached at Exhibit F.

1 It is noted that the proposed dates for deadlines suggested here have been calculated in anticipation of the Court issuing its Order by December 11, 2006. Should the Court issue an Order after December 11, 2006, all deadline dates in the draft order must be adjusted by the same time period.

3. Analytics, Inc., of 18732 Lake Drive East, Chanhassen, MN 55317, is appointed as the claims administrator for the proposed settlement in this case.
4. Within three (3) weeks from the date of this order, the claims administrator will mail the revised settlement notice and claim form in the envelope described in paragraph 2 above to known class members.
5. The newspaper notice of the settlement will be published twice in both the Portland Press Herald, Bangor Daily News and Rockland Courier Gazette. Counsel for the plaintiffs will also distribute the press release described in paragraph 2 above to various media following the issuance of this court order. Defendants will post copies of the newspaper notice at the jail in accordance with Paragraph 4 of the Settlement Agreement.
6. Plaintiff’s Counsel will maintain the website www.knoxcountyjailclass.com and copies of the notices to class members and the claim form approved by the Court will be available for downloading from this website.
7. The claims administrator will maintain a toll-free telephone number from which potential class members can get information about the case and the settlement during the time period beginning when claim forms are mailed and ending the day after claim forms must be postmarked.
8. On February 16, 2007, counsel for the plaintiffs shall file their motion for final approval of the settlement and their supplemental memorandum on attorneys fees.
9. January 5, 2007 is the deadline for class members to file a written notice of exclusion from this case.

10. January 5, 2007 will be the posted deadline for class members to have postmarked their settlement claim forms, with an additional two week amnesty period until January 19, 2007, during which settlement claim forms will still be accepted as timely.
11. On February 16, 2007 counsel for the plaintiffs may file a supplemental memorandum addressing any objections to the settlement filed after January 19, 2007, or otherwise supporting the approval of the settlement.
12. March 30, 2007, the last business day before the hearing on the Motion for Final Approval of the Settlement, shall be the absolute cutoff deadline for the consideration of settlement claims forms submitted late.
SO ORDERED DATED THIS ___ DAY OF OCTOBER, 2006.
________________________________ GENE CARTER JUDGE, UNITED STATES DISTRICT COURT

 
 UNITED STATES DISTRICT COURT District of Maine

DALE DARE, on behalf of himself and

)

on behalf of others similarly situated,

)

)

Plaintiffs

)

)

vs.

)

)

KNOX COUNTY, DANIEL DAVEY,

)

In his individual capacity and in his official )

Capacity as Knox County Sheriff,

)

)

Defenda

nts

)

Docket No. 02-251-P-C

PLAINTIFFS’ MOTION FOR FINAL SETTLEMENT APPROVAL

I. SUMMARY The parties agreed to settle this case on Friday, September 29, 2006 at the Judicial
Settlement conference with Chief Judge Singal (Docket item No. 328), the general terms of which are set forth in a written settlement agreement signed by all parties on September 29, 2006. Under the summary agreements, the parties were required to submit, using the Second Amended Settlement Agreement approved in Nilsen v. York County, (02 -CV-212-P-H.) their final written agreement, along with a Motion to Recertify the Class.(Docket item No. 368, supra).
On December 18, 2006 the Court entered It's Order approving Plaintiff's Motion For Approval Of Third Final Settlement Agreement, thus giving preliminary approval to the agreement between the parties and authorizing the issuance of a class wide notice "in a reasonable manner" as required by Rule 23 (e) (1) (B). The court also set a hearing

1

under Rule 23 (e) (1) (c) to determine whether the settlement is fair, reasonable and adequate; whether any request for attorneys fees and non-taxable cost should be allowed and, if so, the extent of such allowance; and resolution of any other issues then properly before the Court. The hearing under Rule 23 (e) (1) (c) is scheduled to take place on April 23, 2007 at 10:00 a.m.(Docket item No. 378). Additionally, the Court issued an injunctive Order designed to prevent unconstitutional strip searches in the future (Docket item No. 379). II. Procedural History
Plaintiffs filed this action on or about November 19, 2002. On November 5, 2003, Judge Gene Carter of the United States District Court for the District of Maine granted plaintiff's motion for class certification and certified this case as a class action under Fed.R. Civ. P 23 (b) (3). The class was defined as follows:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) After having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) While waiting for bail to be set up on charges that did not involve a weapon, drugs, or a violent felony; or
(3) While waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
2

(4) After having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony. (See Docket Item No. 21)
The decision to certify the class was affirmed on appeal by the United States Court of Appeals for the First Circuit, Tardiff vs. Knox County, 365 F.3d 1 (1st Cir. 2004).
Plaintiffs alleged that all arrestees or pretrial detainees at the Knox County Jail were subjected to a strip search, sometimes to include a visual body cavity search, as part of a booking procedure. The defendants have denied those allegations and have asserted that both their officially promulgated policies and their actual practices and procedures were at all times consistent with constitutional requirements.
This case has been in litigation since November, 2002. Partial Summary Judgment was granted to the Plaintiffs on November 2, 2005. The Court ordered on a small rollback of the Partial Summary Judgment in April of 2006 requiring Plaintiffs to prove an unconstitutional custom and practice for class members strip-searched between September 2002 and December 2004. A trial, originally scheduled to begin April 1, 2006, was postponed until May 1, 2006 and then to October 3, 2006. The parties, like the famed the light brigade, charged into summer with no thought to what September would bring. The parties interviewed, deposed, motioned and strategized fiercely aiming for the killer strike that would put them a leg up and demoralize the other side. On September 5, 2006 court decertified the class with respect to damages, disqualified all witnesses, shredded all exhibits and denied all motions. The parties retreated, seeking shelter in the chambers of Chief Judge Singal. On September 29 Chief Judge Singal brought the battle
3

to a close through an all day Judicial Settlement Conference.1 Following instructions of Chief Judge Singal to prepare a final written agreement using the Second Amended Agreement approved in Nilsen v. York County, (02-CV-212-P.-H.), the parties began the process while hammering out that final agreement. On December 18, 2006 the Court rewarded the parties' efforts by approving preliminarily the Third Final Settlement Agreement. (Docket Item No.: 378). III. SUMMARY OF SETTLEMENT TERMS
The Settlement reached by the parties secures a remarkable recovery for class members. Under the settlement, the Defendants have created a settlement fund of $3 million dollars from which payments to class members, class representatives, class counsel, and the Claims Administrator will be made. This is an extraordinary outcome for the Class because approximately 366 class members will share in a fund which will pay them significantly more than they might have received had they gone individually to trial.
Under the terms of the settlement agreement, each class member who timely submits a completed and signed claim form postmarked no later than February 12, 2007, will, if his claim is approved, receive a payment from the common fund (after deducting attorneys fees, costs, expenses of administration, and bonuses to the class representative and those class members who were deposed by the Defendants) calculated on the basis of one share for every class member with an approved claim. Class members wishing to opt
1 The parties had previously attempted to mediate the dispute with the assistance of former Maine Supreme Judicial Court Chief Justice Daniel Wathen. The two days spent with the Chief Justice Wathen brought focus to the parties' perceptions but did not resolve the case.
4

out of the settlement are required to file a properly executed to opt-out form on or before February 12, 2007.
In the terms of the settlement agreement, a portion of the settlement fund shall be used, subject to Court approval, to pay the cost of administering the settlement as well as a plaintiffs attorneys fees and expenses. Class counsel have separately applied to the Court for an award of attorney's fees in the amount of $900,000.00 (which represents 30% of the settlement fund of 3 million), for reimbursement of $178,561.41 in expenses, and for $35,0002 to cover the estimated Cost of Administering the Settlement.
The Settlement Agreement also provides for an incentive award in the amount of $5,000 for the class representative of record as of the date of the Final Approval of the settlement and a $500 bonus for each of the 20 class members who were deposed by the defendants.
The Settlement Agreement will completely settle and resolve this class action. Unless a class member opted out by the timely submission of a valid opt-out form, the settlement will fully bind all members of the class. As the settlement agreement provides: "in consideration of the settlement amount, all defendants,... will be released from all liability for the class members’ claims for unlawful strip searches that were part of this lawsuit, including class members who do not file claims, except for any class members who requested exclusion, opted out, and filed an individual lawsuit within the
2 Analytics initial estimate of claims administrative expenses was $35,000.00 (see Exhibit B, Motion for Attorney’s Fees , Cost Of Litigation And Expenses Of Settlement Administration), class counsel had paid Analytics $8,684.33 and have another invoice in transit in the amount of $21,933.37, for a total to date of $30,617.70 in claims administration expenses. Analytics will provide an updated estimate of the expenses expected to be necessary to close out the claims administration phase of this case.
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applicable statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties further agree that this release of claims applies to any claims that the strip searches were conducted in a manner that was unlawful, including without limitation, claims of physical touching, cross- gender searches, or searches which were observed by persons other than the correctional officer performing the search. The parties further agree that their settlement does not release any other claims, such as wrongful arrest, excessive force, or searches that were not part of the admissions process (such as strip searches after a lockdown).”
Class members have been notified of the settlement pursuant to the Notice Plan approved by the Court in its Order granting preliminary approval of the settlement (Docket item No. 376-2). First, a Notice Package consisting of a Notice of Class Action Settlement and of the Hearing to Approve the Settlement ("Notice of Settlement"), a Settlement Claim Form, a Frequently Asked Questions sheet and an Opt-Out Form, by first-class mail postage prepaid to all potential class members, whose addresses are known to Class Counsel at their last known address within three weeks after the Court Order granting preliminary approval. Second, creation of a website, www knoxcountyjailclass.com, where Notice of Settlement and the Settlement Claim Form and the Opt-Out Form are available for downloading from the website or on request to the Claims Administrator including through a toll-free number. Third, publication of the Notice of Settlement twice in the Portland Press Herald, Rockland Courier Gazette and
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the Bangor Daily News. Fourth, posting the Notice of Settlement in the Knox County Jail. Fifth, the issuance of a press release detailing preliminary approval of the settlement, how to obtain the appropriate Claims and Opt-Out Forms, the dead-line for filing and Notice of the date and time of the Final Fairness Hearing. IV. The proposed settlement is fair, reasonable and adequate
A class-action settlement that “...is fair, adequate and reasonable" may be approved by the Court. Fed.R. Civ. P 23 (e)(1)(C), and City Partnership Co. v. Atlantic Acquisition Ltd. Partnership, 100 F.3d 1041, 1043 (1st Cir.1996). The criteria relevant to determination of whether a settlements is fair, reasonable, and adequate are: (1) comparison of the proposed the settlement with the likely results of litigation; (2) reaction of the class to the settlement; (3) stage of the litigation and the amount of discovery completed; (4) quality of counsel; (5) conduct of the negotiations; and(6) prospects of the case, including risk, complexity, expense and duration. In re Compact Disc Minimum Advertised Price Antitrust Litigation, 216 F.R D. 197, 206-07 (D. Me.2003) and Alba Conte & Herbert Newberg, Newberg on Class Actions (4th ed. 2002), section 11.43. In In re Compact Disc, the Court indicated that "a settlement following sufficient discovery and genuine arm's-length negotiation is presumed fair. In re Compact Disc, supra at 207.
A. A Comparison of Settlement Terms with Litigation Prospects.
The first and six factors-comparison of proposed settlement with likely results of litigation, and prospects of the case, including risk, complexity, expense, duration-
7

overlap, and may be analyzed together. "In evaluating the substantive fairness of a classaction settlement, the Court cannot and should not, use as a benchmark the highest award that could be made to the plaintiff after full and successful litigation of the claim." Duhaime v. John Hancock Mutual Life Insurance Co., 177 F.R.D.54,68 (D. Mass. 1997). Rather, the question is "whether the plaintiffs’ likelihood of success on the merits balances appropriately against the amount and form of the relief offered in settlement." Id.. ( "quoting Santana v. Collazo, 714 F.2d 1172, 1175 (1st Cir. 1983); see also Ramirez v. DeCoster, 203 F.R.D.30, 33 (D. Me. 2001) (deferring to "the parties ... assessment of their respective risks ....”).
The parties litigated this case completely through discovery. The case was hard fought with no stone left unturned. Comprehensive interrogatories and document request were made, 25 depositions were taken, a physical inspection of the Knox County Jail booking area and process was conducted and extensive information was obtained electronically by on-site inspection of the jails electronic records. Class counsel contacted numerous potential claimants and the parties interviewed more than a hundred absent class members. The Defendants also produced 25 bankers boxes of intake and release records. From the production of the paper and electronic records, the depositions, interviews and contacts with class members, both parties were able to assemble databases permitting them to narrow the field of eligible class members. While the parties’ estimations of the number of eligible class members narrowed the field to about 7,000 claimants, the parties estimations of how many of those 7,000 were strip searched varied
8

by a wide margin. Because of the poor quality of the records, it was not possible to narrow the gap. Plaintiffs’ included in their count all eligible class members held at the jail without bail as well as those whose intake records clearly indicated the class member were strip searched. The Jail’s estimate included only those individuals which the records identify explicitly as having been strip searched.
The depositions taken by the Plaintiffs of the jail administrator and the State’s Chief Jail Inspector established that Jail policy was to strip search everyone held at the jail. While this threshold issue of liability was strongly defended, Plaintiffs’ won Summary Judgment on the issue both with respect to Knox County’s “policy” and “custom and practice”. The Court later rolled back Summary Judgment on the “custom and practice’ count, granting summary judgment to the Plaintiffs for the period November 19, 1996 through August 31, 2002 and leaving open for trial “custom and practice” liability for those people detained between September 1, 2002 and December 31, 2004.
The parties made two efforts at settlement, both in 2006. First in April of 2006, the parties spent 2 days trying to hammer out a settlement with former Maine Supreme Judicial Court Chief Justice Daniel Wathen as mediator. The parties were unsuccessful in achieving a settlement at that time, but were able to achieve a sharper focus of the strengths and weaknesses of their respective claims and the complexities facing them in trial of the case.
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If the parties did not have sufficient information to make a reasonable assessment of their risk at trial, the Court made those risks crystal clear on September 5, 2006 when it decertified the class for damages, disqualified all witnesses and shredded all exhibits. See Luevano v. Campbell, 93 Frd 68, 86 (D.D.C. 1981); Ressler v. Jacobson, 822 Fed. Supp 1551, 1554-55 (N.D. FLA 1992) and In Re: Marine Midland Motor Vehicle Leasing Litigation, 155 Frd 416, 420 (W.D.N.Y. 1994). Further aided by Chief Judge Singal’s telescopic vision and a full day of discussion, the parties were able to settle the case for Three Million Dollars ($3,000,000.00).
Under the terms of the settlement each class member who timely submits a valid claim should receive from the net settlement fund a cash payment in the neighborhood of $5,000.00. This approximated share of the settlement is calculated by dividing One Million Nine Hundred Eighty-Five Thousand Dollars ($1,985,000.00), [$2,000,000.00 minus $15,000.00 in incentive and bonus awards by 366 (approximate number of claims expected to be approved)]. Each approved class member will receive and equal share of this fund. Class Counsel proposes that the remaining One Million Dollars ($1,000,000.00) of the gross settlement fund, plus accrued interest, be used to pay awarded attorneys’ fees, litigation expenses and the cost of settlement administration with any excess remaining to be cy pres’d.
Plaintiffs ask the Court to order, as part of the requested final approval order, that the payment to each claimant be calculated such that $2,000,000.00 of the settlement fund (net of attorney’s fees and costs, settlement expenses and incentive awards) be
10

divided by all class members submitting valid claims. The language of the settlement agreement permits the Court to Order that the actual payment to claimants be calculated to consume the entire residual corpus of the net settlement amount. Plaintiffs fully expect this number to final out at $2,000,000.00 dollars. Should there be some residual amount left in the fund after all expenses are paid, Plaintiffs respectfully request that the Court apply cy pres rules to that excess.
The $3,000,000.00 settlement was achieved not withstanding Defendants steadfast denial of any liability to the class. Defendants have not denied that the challenged strip search practice occurred but have vigorously asserted that it was neither unlawful nor harmful to the claimants. While the Plaintiffs believe that they were able to prove their claims and defend their verdict and summary judgment on appeal, the Defendants interposed numerous legal and constitutional defenses which they said they would continue to exert vigorously at trial and on appeal. Continuing litigation of these defenses notwithstanding, trial on the remaining issues of liability and then individual trials on issues of damages would have been extraordinarily expensive for both sides exhausting them physically and financially and also exhausting the limited resources of the Court. See Murillo v. Texas A & M University System, 921 F.Supp 443, 447 (S.D. Tex. 1996).
The substantial benefits of the proposed settlement compared to the nightmare ahead would the case were tried is, in and of itself, evidence that the settlement is fair reasonable and adequate. It brings closure to the issues and lays to rest all planned
11

appeals. The Court has issued an Injunctive Order prohibiting future strip searches of the caliber challenged by the Plaintiffs and qualified class members who have filed claims will receive a substantial monetary payment under the settlement. There have been a few opt outs. While one or more of those who chose to opt out and who move forward to litigate their individual claims to conclusion may prevail at trial and may end up with a more substantial recovery than what the settlement agreement provides, that recovery would come at a cost so prohibitive as to dwarf any additional amount recovered by them even though some may be able to use the work of Class Counsel, the Partial Summary Judgment and the Injunctive Order to their advantage.
The Settlement Agreement also provides for an incentive award in the amount of $5,000.00 to the named class representative. The proposed incentive award is fair and reasonable given the substantial benefit the Plaintiffs have secured for the class. See In Re: Mego Financial Corp. Securities Litigation, 213 F3rd 454, 457, 463 (9th Cir. 2000). The bonus of $500.00 to each of the class members who were deposed by the Defendants is also fair and reasonable given the substantial benefit the named Plaintiffs have secured for the class and the singling out that these courageous individuals endured in order to advance the cause of the entire class.
B. Reaction of the Class
The second factor, reaction of the class to the proposed settlement, also weighs in favor of final approval. Four Hundred Twenty-Three (423) people submitted claims
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forms. Eight (8) people opted out. Fifty-Seven (57) claims were denied. Three Hundred Sixty-Six (366) claims were approved. The deadline for filing a claim form or opting out was February 12, 2007. No one asked for an extension of the filing deadlines and no objections to the settlement have been filed.
C. Stage of Litigation
The third factor, the stage of litigation and extent of discovery completed, further supports approval of the proposed settlement. The discovery has been ongoing for four years. It was extended several times. The Plaintiffs deposed the Knox County Jail Administrator and the Chief Jail Inspector of the State of Maine. Defendants deposed 19 named class members and interviewed more than 100 absent class members. Defendants produced thousands of pages of jail records and thousands of lines of electronic data. Experts on both sides reviewed the data extracted electronically and from the paper documents to build and analyze data files. Experts on both sides also were deposed and listed for trial as damage experts. The extensive discovery in this case, extensive settlement discussions and legal challenges to the class certification and the legalities of Plaintiffs theories have given class counsel and counsel for the defense a clear understanding of the scope and strengths of the Plaintiffs claims and the Defendants’ defenses and a firm conviction that the settlement constitutes a fair, reasonable and adequate resolution of those claims.
D. Quality of Class Counsel
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The fourth factor, quality of Class Counsel, also supports final approval. Class counsel had extensive experience in local and national class action litigation as documented in class counsel’s application for award of attorney’s fees and award of litigation expenses and claims administration fees.
E. Conduct of Negotiations
The fifth factor, conduct of negotiations, further buttresses the case for final approval. Hard fought, arms length negotiations extended over a period of about oneyear, during which time the parties were far apart on their positions and ultimately needed the assistance of Magistrate Judge Cohen to pick a mediator. Numerous in person and telephonic conferences were conducted between counsel and among counsel to get settlement discussions going and then to consummate those discussions with the assistance of Chief Judge Singal. The parties were scrupulous in using independent mediators who could diffuse the contentious nature of the negotiations and keep the parties focused on the object of the mediation. Although a two day long session with former Maine Supreme Judicial Court Chief Justice Daniel Wathen proved fruitless, a day long session with Chief Judge Singal on the eve of trial brought the parties to terms.
Settlement negotiations were arms length, hard fought and ultimately successful. Because of those struggles, the proposed settlement is fair and reasonable. It is an excellent recovery for the Class and Plaintiffs respectfully submit that final approval should be granted.
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IV. The notice plan is fair, adequate and reasonable.
Rule 23 requires class members to receive notice of a proposed class action settlement. The notice must be “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Eisen v. Carlisle and Jacqueline, 417 U.S. 156, 173 (1974) quoting Fed. R.C.P. 23(c)(2)(B). The notice must indicate the nature of the class and its claims, and explain that class members have the option of entertaining an appearance through counsel or opting out of the settlement, and make clear the binding effect of a judgment on class members. Id.
The parties, with the persistent assistance of the Court, crafted an efficient and effective plan for notifying class members of the proposed settlement and getting settlement funds into the hands of class members. The notice and claims administration plan (Docket Item No. 382-1, sets out in detail the method by which class members have been notified of their rights. Notice has been sent to each class member at his last known address where the parties had such an address. Notice of the proposed settlement was published pursuant to the Court’s Order, twice in the Portland Press Herald, Rockland Courier Gazette and the Bangor Daily News. Posters were posted in the Knox County Jail throughout the period where claims could be filed and the Claims Administrator established a website: www.knoxcountyjailclass.com enabling potential class members to obtain the notice information and download claims and opt out forms.
15

The notice was designed to make clear to class members the existence and nature of the lawsuit, the terms of the proposed settlement and their options with respect to settlement both in filing a claim or opting out. Plaintiffs therefore believe it is fair, adequate and reasonable and should be approved.
CONCLUSION
For the above reasons, Plaintiffs respectfully request the Court grant final approval of the settlement and the notice plan in this action.

Dated: March 30, 2007 Attorney 227 Augusta,
Dated: March 30, 2007 Attorney 227 Augusta,
Dated: March 30, 2007 Attorney

/s/ Sumner Lipman Sumner Lipman, Esq.
for Plaintiffs Lipman, Katz & McKee
Water Street, P.O. Box 1051 ME 04332-1051
/s/ Robert Stolt Robert Stolt, Esq.
for Plaintiffs Lipman, Katz & McKee
Water Street, P.O. Box 1051 ME 04332-1051
/s/ Dale Thistle Dale Thistle, Esq.
for Plaintiffs 103 Main Street, P.O. Box 160 Newport, ME 04953

16

 
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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

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LAURIE TARDIFF,
Plaintiff v.

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Docket No. 02-CV-251-P~CI~jEPUTY CLER!\

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KNOX COUNTY, et aI.,

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Defendants

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SETTLEMENT AGREEMENT

The parties hereby agree to settle this case in exchange for Defendants establishing a common fund of Three Million Dollars ($3,000,000.00), said amount to include all attorneys' fees and costs incurred, as well as all claims administration expenses. The parties agree that counsel for Plaintiff will seek to recover 30% of this fund to cover their fees and costs. The parties agree that they will jointly move for re-certification of the class only for purposes of facilitating settlement and disbursing the balance of the above common fund to qualifying class members.

This settlement is subject to the approval of both the County and the Risk Pool. It

is understood that Defense counsel will be recommending approval and that the necessary

meetings and votes by both entities will occur before 1 PM on Monday, October 2,2006.

Subject to obtaining this approval, the parties agree that the final settlement agreement

presented to the Court for approval will utilize provisions and procedures found in the

Amended Settlement Agreement approved in Nilsen v. York County (02-CV-212-P-H).

The parties will file their final written agreement along with a motion to re-certify the class

on or before Tuesday, October 3, 2006.

"11 Date:

d-"l( "'{

91 J Date:

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Page 1 of2

Date: j/2. j (20.oL
i Date: 2-11'ZPt!>'

Defendant York County Coun el for Defendant Sheriff Davey

Page 2 of2

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DALE DARE, on behalf of himself and on behalf of others similar situated,
Plaintiffs

v.

Civil No. 02-251-P-C

KNOX COUNTY and DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff,
Defendants
Gene Carter, Senior District Judge
ORDER FOR CLAIMS ADMINISTRATOR TO REEVALUATE CLAIM DENIALS
The Court has discovered an error in the claim denial letter sent out by the Claims
Administrator explaining the reasons for denial of individual claims. The form letter lists
five potential grounds for the denial of an individual’s claim and provides a box
preceding each ground to be marked to indicate to the claimant the reason for the denial.
The first ground for denial of a claim states: “Your strip search followed an arrest on
charges which involved weapons, violence or drugs.” This is an erroneous statement of
the class definition. The class certified by the Court in this case is defined as:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or

(3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.
Docket Item No. 21 at 6 (emphasis added). To exclude only those individuals who fall
outside the definition, the first ground for denial should properly state: “Your strip search
followed an arrest on charges which involved weapons, drugs or a violent felony.”
Application of the erroneously articulated standard may have led the Claims
Administrator to deny class membership to individuals who in fact satisfy the class
definition. Accordingly, the Court ORDERS that on or before June 25, 2007:
(1) the Claims Administrator shall reevaluate, in light of the proper standard for class membership, all the individual claims that were denied on the first ground listed in the claim denial letter and correct any mistakes in the determination of class membership;
(2) the Claims Administrator shall file copies of all letters it sends to claimants reversing, after reevaluation, a claim denial;
(3) the Claims Administrator shall file copies of all the letters it previously sent to individuals, which denied claims based on the first ground listed in the claim denial letter;
(4) Plaintiff’s lead counsel, Robert Stolt Esq., shall file a certification stating that he has personally reevaluated with the Claims Administrator all of the individual claims that were denied on the basis of the erroneous standard;
(5) Attorney Stolt’s certification shall include a listing of, and disposition for, all of the reevaluated claims; and
(6) Attorney Stolt shall file documentation to support the outcome of each reevaluation.
/s/ Gene Carter____________________ GENE CARTER Senior United States District Judge
Dated at Portland, Maine this 18th day of June, 2007.
2

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DALE DARE, on behalf of himself and on behalf of others similar situated,
Plaintiffs

v.

Civil No. 02-251-P-C

KNOX COUNTY and DANIEL DAVEY, in his individual capacity and in his official capacity as Knox County Sheriff,
Defendants
Gene Carter, Senior District Judge JUDGMENT
As directed by the Court, Plaintiffs have filed the following certifications: (1) the number of class members who have had their Proofs of Claim approved; (2) the reasonable cost to cover the work remaining by the Claims Administrator; and (3) a proposed final accounting of the settlement funds.
The Claims Administrator's final accounting of the settlement fund shows the projected balance in the settlement fund as of August 23,2007 to be Three Million Thirty-Five Thousand Four Hundred Eighty and 481100ths Dollars ($3,035,480.48).
The Court APPROVES the following distributions from the settlement fund proposed by the Claims Administrator:

(1) Seven Hundred and Fifty Thousand Dollars ($750,000), previously determined by the Court to be a fair and reasonable fee, to Lipman, Katz & McKee, P.A. for attorneys' fees; (2) Twenty Three Thousand Eight Hundred Twenty-Two and 741100ths Dollars ($23,822.74) to Lipman, Katz & McKee, P.A. for litigation expenses, also previously determined by the Court; (3) Five Thousand Dollars ($5,000) to Dale Dare as an incentive award for his role as class representative; (4) Five Hundred Dollars ($500) to each of the 19 deposed class members who filed an approved Proof of Claim. The Court also APPROVES the following reservations from the settlement fund proposed by the Claims Administrator: (1) Twelve Thousand Five Hundred Ninety-Six and 751100ths Dollars ($12,596.75) for the Claims Administrator for work done from June 1,2007 through the final distribution of the funds in the settlement fund; and (2) Three Thousand Dollars ($3,000) for state and federal income tax liability of the settlement fund. The total amount of money in the settlement fund remaining available for distribution is Two Million Two Hundred Thirty-One Thousand Five Hundred Sixty and 991100ths Dollars ($2,231,560.99). The Claims Administrator has approved Proofs of Claim for 376 class members. Based on these figures, the Court APPROVES the Claims Administrator's proposed distributive share for each class member in the amount of Five Thousand Nine Hundred Thirty-Five Dollars ($5,935.00). The Court ORDERS that the distributions approved above be made out of the settlement funds by the Claims Administrator in accordance with the terms of this Judgment only after the time for filing of any appeal from this Judgment has expired
2

without any appeal or, if an appeal is filed, after final resolution of such appeal is accomplished, and this Order for distribution of funds is hereby STAYED accordingly.
lsi Gene Carter GENE CARTER Senior U.S. District Court Judge Dated at Portland, Maine this 4th day of September, 2007.
3

 
 425 F.Supp.2d 159 (2006)
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, and Jane Doe and John Doe, in their individual capacities, Defendants
No. CIV.02-251-P-C.
United States District Court, D. Maine.
April 4, 2006.
16012 *160 *161 *162 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, Robert J. Stolt, Lipman, Katz & McKee, Augusta, ME, for Laurie Tardiff, Plaintiff.
John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, for Knox County, Daniel Davey In His Individual Capacity, and in his Official Capacity as Sheriff of Knox County, Jane Doe In Her Individual Capacity, John Doe, In His Individual Capacity, Defendants.
ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION
GENE CARTER, Senior District Judge.
Now before the Court is Defendants' Motion for Reconsideration of the Court's Order Granting in Part and Denying in Part Plaintiffs' Motion for Summary Judgment (hereinafter "Summary Judgment Order"). Defendants' arguments have been thoroughly considered and, with the qualification of enunciating the class members to whom the Court's finding of liability applies, the Court will deny the Motion for Reconsideration.
I. Class Members Included in the Summary Judgment Findings
Defendants' motion highlights an ambiguity contained within the Summary Judgment Order. Specifically, Defendants' motion assumes that the Summary Judgment Order's finding of municipal liability for the strip searches of misdemeanor detainees without reasonable suspicion applies to all class members. Defendants assert that the Plaintiff class includes all misdemeanor detainees who were strip searched without reasonable suspicion after November 19, 1996.[1] Consequently, they argue, such an interpretation of the Summary Judgment Order leads to the unusual result of finding municipal liability for strip searches which may occur in the future. While Defendants read the Order broadly to reach such a conclusion, the Court will not follow suit.
Neither party raised, prior to the Motion for Reconsideration, the issue of whether record evidence of the unconstitutional custom found by the Court applied equally to all class members' claims. Rather, the parties briefed, and the Court considered, only the narrower issue of whether, based upon the record evidence, a trialworthy issue existed with regard to any of the elements of Plaintiffs' class claim. Now that Defendants have surfaced the issue of whether the summary judgment finding regarding the existence of an unconstitutional custom at the Knox County Jail should necessarily extend to all members of the class, the Court will address that issue in the context of summary judgment.
As noted in the Summary Judgment Order, Plaintiffs bear the burden of demonstrating that there existed a custom or practice of strip searching misdemeanor detainees without reasonable suspicion, that the custom or practice was attributable to the municipality, and that the custom or practice was the moving force behind the

constitutional violation. Thus, in order for Plaintiffs to establish liability for a particular strip search, they must establish that the custom or practice existed at the time of the constitutional violation.
In finding that the custom existed, the Court considered undisputed evidence of misdemeanor detainees being 163 strip searched without reasonable suspicion from at least 1994 to at least 2003. *163 Central to the Court's
determination that such a custom existed was evidence obtained from booking logs at the jail demonstrating that corrections officers routinely strip searched misdemeanor detainees without reasonable suspicion. The record, however, only contains log evidence from January of 1997 until August of 2002. While there remains some evidence of strip searches occurring after August of 2002, that evidence alone is insufficient to persuade the Court that a reasonable factfinder would be required to conclude that there continued a custom of doing so. As for strip searches occurring after November 19, 1996 but prior to January of 1997, the record contains undisputed evidence that both in 1994 and in 2000 corrections officers at the jail were strip searching all detainees charged with misdemeanors. Based upon this and the other record evidence relied upon by the Court, and in the absence of any other evidence creating a trialworthy issue, any reasonable factfinder would conclude that the custom of doing so continued throughout that time. Accordingly, Plaintiffs have thus far established that a custom of strip searching misdemeanor detainees without reasonable suspicion existed from November 20, 1996 through August of 2002. The Summary Judgment Order's finding of liability, therefore, only applies to searches conducted within this time.[2]
II. Municipal Liability
A. Select Pieces of Evidence
First, Defendants argue that the Court misconstrued individual pieces of evidence contained in the record. They contend that, in some instances, the Court drew inferences unsupported by the record, and in others, the Court failed to draw reasonable inferences favorable to them, as required by the applicable summary judgment standard. Although the Court deems these arguments to be without merit, because many of them are now raised for the first time, the Court will briefly address each of them.
1. Department of Corrections Jail Inspection Reports from 1994 and 2000
With respect to both the 1994 and 2000 jail inspection reports, Defendants assert that "the strongest inference supported by [these] reports is that some unidentified correctional officers (those providing the information in the reports) conducted strip searches in 1994 and 2000." Motion for Reconsideration at 6 (Docket Item No. 150). Defendants, however, mischaracterize the evidence. Both reports conclude that "all inmates are being strip searched regardless of the crime if they are to be housed." These reports are uncontroverted by the record. Instead, Defendants attack the credibility of the evidence, arguing that the reports lack detail. "However, a mere challenge to the credibility of a movant's [evidence] without any supporting evidence does not create a genuine issue of material fact." Moreau v. Local Union No. 247, 851 F.2d 516, 519 (1st Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Without any affirmative evidence creating a genuine issue of material fact, the Court properly relied upon this evidence as proof that in 1994 and 2000 "all inmates [were] being strip searched regardless of the crime if they [were] to be housed."
Defendants further challenge the relevance of this evidence, arguing that the 1994 jail inspection report is not 164 relevant *164 for any purpose because it covers a period of time outside the scope of Plaintiffs' lawsuit. The Court
disagrees. The report provides information about the circumstances surrounding the search practices at the Knox County Jail as well as the knowledge of the county policymakers before the commencement of the class period. Accordingly, the Court's use of the evidence was proper.

2. Robbins Affidavit
Similarly, Defendants suggest that the Court's reliance on the affidavit submitted by Jail Administrator Robbins was misplaced. In granting summary judgment in favor of Plaintiffs the Court relied, in part, on Robbins' statement that through a lawsuit filed in April of 1998 he "became aware that the jail staff were not always following the policy and were, at least on some occasions, conducting strip searches in violation of policy [C-120]." Summary Judgment Order at 26-27. Defendants now argue that the statement is irrelevant for purposes of the Court's inquiry because it fails to state how many correctional officers were violating the policy or for how long. While Defendants are correct in observing that this single piece of evidence does not completely illuminate the extent of the unconstitutional practice occurring at that time, it does provide some evidence of what was occurring at the jail during the class period. Moreover, the affidavit demonstrates that, even prior to the 2000 jail inspection report, the Jail Administrator had actual knowledge that some officers were still engaging in the unconstitutional practice of strip searching misdemeanor detainees. The Court did not err in considering this evidence.
Defendants also contend that the Court should have inferred from this evidence that "jail personnel were following policy far more often than not." Although on summary judgment the nonmovant is entitled to the benefit of favorable inferences, they must be reasonable ones. The inference now sought by Defendants is in no way supported by the evidence. Robbins' Affidavit does not address the practice of other corrections officers, and, thus, such an inference would be unreasonable.
3. Robbins's Letter to Local Police Chiefs
The record evidence in this case provides that "[i]n 2001, Jail Administrator Robbins wrote to local police chiefs notifying them that the Knox County Jail would no longer provide the service of strip searching misdemeanor arrestees on the request of arresting officers (for the purpose of discovering evidence).'" Order at 27. Defendants argue that this piece of evidence is not probative of whether there was an unconstitutional practice of strip searching misdemeanor detainees without reasonable suspicion because it "allows the inference that the arresting officer had a reasonable basis, recognized by the Fourth Amendment, to believe that such a search was permissible." Motion for Reconsideration at 8. Even crediting this inference, however, Defendants' argument falls short. The Constitution requires that a corrections officer have reasonable suspicion prior to conducting a strip search of a misdemeanor detainee. The request of a police officer to strip search such a person, even for the stated purpose of discovering evidence, does not fulfill that constitutional requirement. Moreover, even assuming that this letter does not provide some evidence of an ongoing unconstitutional practice, it is still highly probative of what municipal policymakers knew about the ongoing strip search practices at the jail. There remains substantial uncontroverted record evidence that there was a practice of strip searching misdemeanor detainees without reasonable suspicion. If this was not evidence of the fire itself, it undoubtedly showed the smoke rising over the trees.
165 *165 4. Intake and Release Logs
Defendants take issue with the Court's conclusion that "evidence of this unconstitutional practice can be easily verified from a review of the daily intake/release log entries." Opinion at 28. First, Defendants argue that the number of misdemeanor arrestees in each category during the sample period is unhelpful because the record does not establish the percentage of arrestees that were unlawfully searched during the sample. Defendants fail to cite any authority for the proposition that, in order to establish a custom or practice, Plaintiffs must provide "at least rough percentages" of the frequency of the constitutional violation. Regardless of whether this practice was the predominant practice among corrections officers, the log evidence provides additional proof that, for at least some corrections officers, it was customary.
In order to create a genuine issue of material fact on this issue, Defendants now attempt to offer some of the percent-type evidence they assert was missing from the summary judgment record. These percentages,

however, are not supported by the record. Specifically, the record does not support the assumptions regarding the average daily arrest rate for each category, the record evidence of the number of strip searches in a given category during the sample months, or Defendants' mathematical computation of the total percentage derived from the assumed average daily arrest rate. Moreover, even if Defendants' assertions were supported by the record, they have failed to timely raise this argument. Defendants did not include such evidence in their initial statement of material facts.[3]See Local Rule 56(f) ("The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.").
Finally, Defendants contend that the Court erred in concluding that the strip searches evidenced by the logs were conducted without reasonable suspicion. Defendants now argue that, although the logs do not indicate that there was reasonable suspicion, they do not require the inference that the officers were without reasonable suspicion. Defendants now attempt to challenge Plaintiffs' statement of facts on a basis that they previously failed to do. In Plaintiffs' statement of material fact they repeatedly assert that these logs demonstrate that the searches were conducted without reasonable suspicion. See PSMF ¶¶ 63, 66, 67. Although in response to these statements Defendants asserted numerous challenges to Plaintiffs' exhibit, Defendant never denied that the searches evidenced by the exhibit were conducted without reasonable suspicion.[4] Instead, Defendants challenged whether the exhibit accurately reflected the logs, and challenged specific entries as having been misinterpreted. Pursuant to Local Rule 56, Defendants' failure to properly respond to these assertions in their response renders them admitted.[5]
166 *166 B. The Evidence as a Whole
Throughout their Motion for Reconsideration, Defendants challenge the Court's finding of municipal liability by isolating select pieces of the record evidence; each rooted in a distinct point in time and representing a selective perspective on the Knox County Jail strip search practice. They argue that each slice of evidence alone is insufficient to establish the existence of an unconstitutional practice which is attributable to the County. While Defendants are correct that there is no one piece of evidence which, alone, suffices to carry Plaintiffs' burden, they overlook the fact that the summary judgment evidence must be viewed as a whole. See Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 276 (3d Cir. 2001) (holding that "while the individual pieces of evidence alone may not suffice to make out the claims asserted, we must view the record as a whole picture"). As catalogued in the Summary Judgment Order, the record consists of a tremendous amount of uncontroverted evidence that there was an unconstitutional practice and that county policymakers knew or should have known about it. While the Court recognizes the generous standard applicable to nonmovants on summary judgment, Defendants have simply failed to generate a record upon which that favorable standard may afford them the benefit they seek. Based upon this record, the Court is firmly convinced that no reasonable finder of fact could reach a contrary conclusion.
C. Failure to Take Corrective Action
Defendants complain that, with respect to their actions taken to correct the unconstitutional practice, the Court focused too narrowly on the responses that occurred from 2000 to 2001 and ultimately judged the County's actions by the wrong legal standard. The Court disagrees with both claims. First, the Court considered and credited all the record evidence that could arguably suggest Defendants had taken some corrective action. However, the only record evidence of alleged corrective action taken by Defendants occurred between 2000 and 2001. Furthermore, while Defendants read First Circuit precedent literally to require only that they do "something" after receiving notice of the unconstitutional practice, the Court notes that the "something" must be directed at stopping the unconstitutional practice. The Summary Judgment Order provided extensive analysis to support the Court's conclusion that "no reasonable person could conclude that the actions of Knox County were directed at stopping the practice." For all the reasons stated in the Summary Judgment Order, the actions taken by the County in response to this unconstitutional practice amounted to acquiescence in it.

III. Sheriff Davey's Liability
As with the claim of municipal liability, Plaintiffs must establish that a custom or practice of strip searching misdemeanor detainees existed at the time of the constitutional violation in order to establish liability on the part of Sheriff Davey. Because the Court has concluded that the Summary Judgment Order's finding of a custom or practice does not extend beyond August of 2002, the Court's finding of liability against Sheriff Davey must be 167 similarly limited. All of Defendants' remaining arguments made in their Motion for *167 Reconsideration regarding Sheriff Davey's individual liability have been previously addressed by the Court in either the Summary Judgment Order or, supra, in this Order. It is, therefore, unnecessary for the Court to address those arguments yet again.
IV. Interpretation of Bell v. Wolfish
Defendants contend that the Court erroneously assumed that the Supreme Court has held that pretrial detainees have a Fourth Amendment right not to be strip searched. Even a casual reading of the Summary Judgment Order makes it clear that no such assumption was a component of the Court's analysis. The First Circuit has applied the Bell Fourth Amendment reasonableness test to determine the constitutionality of strip searches and, therefore, the Court proceeded to apply that reasonableness test to the strip searches in this case.
IV. Conclusion
With the clarification that the Court's finding of liability for strip searches of misdemeanor detainees does not apply to any class member searched after August of 2002, and for the reasons stated above, the Court ORDERS that Defendants Motion for Reconsideration be, and it is hereby, DENIED.
[1] There is some dispute as to whether the Class has been closed or remains open. For purposes of this Order, however, that issue need not be addressed.
[2] This limitation of liability renders moot Defendants' arguments regarding the Summary Judgment Order's discussion of intradepartmental memoranda entitled "strip search practice interview," as that evidence consisted of strip searches occurring after August of 2002 and is not needed to support the Court's finding of liability.
[3] Instead, Defendants asserted only that the record demonstrated that "the Intake/Release Logs reveal that more inmates were not strip searched than were strip searched." DSMF ¶ 170. As noted above, the fact that the unconstitutional practice was not a predominate one, is not sufficient to create a trial worthy issue in this case.
[4] In response to two of these facts, Defendants do ultimately "deny" the statement and, as required by the Local Rule, Defendants cite to numerous exhibits as support for their denial. None of these exhibits, however, cast any light on whether there was reasonable suspicion for these searches. Accordingly, to the extent that Defendants may have attempted to deny that fact, it was ineffective.
[5] This failure is all the more striking when one considers that, although a portion of Defendants' Opposition to Summary Judgment was devoted to contesting the validity of Plaintiffs' sample evidence, even there, Defendants never raised the issue of whether the logs permit the inference that the searches were conducted with reasonable suspicion.
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 451 F.Supp.2d 253 (2006)

Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, and Jane Doe and John Doe, in their individual capacities, Defendants.

Civil No. 02-251-P-C.

United States District Court, D. Maine.

August 30, 2006.

254 *254 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.

Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR CERTIFICATE OF IMMEDIATE APPEAL OF THE DECISION ON THE MOTION FOR SUMMARY JUDGMENT AND DECISION ON THE MOTION FOR RECONSIDERATION

GENE CARTER, Senior District Judge.

Defendants have filed through counsel the Defendants' Motion for Certificate of Immediate Appeal of the Decision on [Plaintiffs'] Motion for Summary Judgment and Decision on [Defendants'] Motion for Reconsideration thereof (Docket Item No. 258). The Motion seeks a certification from this Court of a basis for interlocutory appeal of the Court's Decision on Plaintiffs' Motion for Summary Judgment (Docket Item No. 141) and its Decision on Defendants' Motion for Reconsideration thereof (Docket Item No. 164). The sole basis for the assertion for the existence of interlocutory appeal status is the content of 28 U.S.C. § 1292(b):

(b) When a district judge, in making in a civil action an order not otherwise appealable under this

section, shall be of the opinion that such order involves a controlling question of law as to which

there is substantial ground for difference of opinion and that an immediate appeal from the order

may materially advance the ultimate termination of the litigation, he shall so state in writing in such

255

order. The Court of Appeals which would have jurisdiction of an appeal *255 of such action may

thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to

it within ten days after the entry of the order; Provided, however, That application for an appeal

hereunder shall not stay proceedings in the district court unless the district judge or the Court of

Appeals or a judge thereof shall so order.

Id., (emphasis added).

Based upon even the most cursory examination of the facial meaning of the language of § 1292(b), the orders in question do not provide any basis for an interlocutory appeal. The Motion presently before the Court provides no articulation of the basis for a finding that the statute provides a predicate for interlocutory appeal or any argumentation in support thereof. It states in a single sentence its entirely conclusory invocation of the statute:

This Court's decision both in the summary judgment order and the reconsideration order raise legal issues sufficient to satisfy the standard for an interlocutory appeal under 28 U.S.C. § 1292 (b).

Defendant's Motion for Certification, at 1. The sentence reflects no expenditure of any cognitive thought on understanding the plain meaning of the statutory provision, and Defendant makes no effort to establish the applicability of the statute to this case by any argumentation.
The statute requires, in order for interlocutory appeal status to be created, a certification by the Judge making the decision. § 1292(b). That certification must be that the Judge, "in making in a civil action an order," id., [that is, at the time of making the order sought to be the subject of the appeal] believed three things about the order:
(1) "[T]hat such order involves a controlling question of law [;(2) ] as to which there is substantial ground for difference of opinion [;] and [ (3) ] that an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . ." Id. A fourth and final requirement of the statute is that the Judge, shall state these opinions "in writing in such order." Id., (emphasis added).
It suffices to observe in disposing of the pending Motion that none of these statutory predicates is satisfied in this case, a conclusion that must be transparently clear to any reasonable person attempting a good faith understanding of the meaning of the language of the statute. Neither of the orders here sought to be made the subject of interlocutory appeal contains the required certification and, in fact, no request has ever been made until the present motion by any party herein for such a certification, a fact that by itself arguably renders the 256 present Motion untimely made[1] on the basis of the plain language *256 of the statute. Furthermore, at no time has this Judge in fact entertained any of the requisite opinions that must be certified nor has it been so indicated in writing in either of those orders.
If the Court were now to consider, assuming it was proper for it to do so under the statute, whether these statutory criteria exist in this case, it would conclude without doubt that they do not. Clearly, reversal of the first Order granting partial summary judgment on some liability claims in the Plaintiffs' Complaint would result in nothing more than those liability claims being reinstated anew for resolution by trial by jury. Thus, it cannot be claimed that such a result will materially advance the ultimate termination of the litigation. This is especially true in view of the fact that there remain, aside from the claims determined by the Order of partial summary judgment, a congeries of other claims and defenses to be adjudicated herein. An immediate appeal will not as a matter of legal substance advance in any significant way the ultimate resolution of any aspect of this matter but will rather delay any resolution.
Furthermore, as a practical matter, counsel have been at a constant state of adamant loggerheads about considering any matter by agreement in the preparatory phases of this case, as far as the Court has observed. It is clear to the Court that neither side is prepared to concede on or to or step back from, any factual or legal proposition underlying their respective positions in this case. Both sides have demonstrated, and on inquiry have avowed, the intent to see the case through to trial no matter what may occur. With matters in that posture, there is no basis to indulge the hopeful prospect that early termination of this case by settlement can be occasioned by quick resolution of the issues sought to be immediately appealed. However hard those issues may be taken to be, it is clear that the heads of the parties and counsel are harder still.
I CONCLUDE that an "immediate" appeal is not available under the statute on the present record herein. The motion is hereby DENIED.
SO ORDERED.
[1] It provides context for present purposes to note that the Court's Decision on the Plaintiffs' Motion for Summary Judgment was filed on November 2, 2005 (Docket Item No. 141) and that its Decision on Defendants' Motion for Reconsideration thereof was filed on April 4, 2006 (Docket Item No. 164). A Final Pretrial Conference was held on April 13, 2006. Defense Counsel indicated orally at the conference that he intended to file a motion seeking certification of the issues previously decided by the Court for an interlocutory appeal. The Court admonished him orally at that time to file the motion promptly so as not to occasion any delay of trial. The Court entered its Report of Final Pretrial Conference and Order (Docket Item No. 181) on April 19, 2006. It provides specifically, inter alia,

Defense counsel indicated that he intended to file a Motion seeking this Court's certification of certain legal issues to the First Circuit Court of Appeals in advance of trial. The Court indicated [that] any such motion should be promptly filed so as not to unnecessarily delay trial.
Id., ¶ 3.A., at 5.
The present motion was filed by defense counsel on July 8, 2006, over two and one-half months after the Pretrial Conference and over nine months after the filing of the Court's Decision on the Plaintiffs' Summary Judgment Motion, which is the basal subject of the attempted appeal. The timing of the motion's filing is such that after expiration of the briefing periods thereon under the Local Rules, it does not mature for action by the Court until August 29, 2006, virtually the eve of the trial as previously scheduled for September 11, 2006 and after extremely intensive pretrial preparations and discovery had been completed in preparation for a trial commencing on that date.
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 453 F.Supp.2d 190 (2006)
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C.
United States District Court, D. Maine.
September 21, 2006.
191 *191 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
ORDER STRIKING PREVIOUSLY FILED EXHIBIT LISTS
GENE CARTER, Senior District Judge.
The Court's ongoing review of the Docket in preparation for commencement of trial now scheduled for October 3, 2006, has disclosed another pretrial instance of a clear violation of one of this Court's prior orders in respect to pretrial preparation as specifically articulated in the Court's Pretrial Orders (Docket Items Nos. 181-1 and 187-2). This tactic appears to be in execution of an apparent overarching strategy indulged by counsel to sow confusion in the pretrial record and involves the pretrial filing of a required "Consolidated" Exhibit List.
The Court previously stated in both pretrial orders, as part of its pretrial preparation Order, that:
2. Counsel shall jointly prepare a consolidated and comprehensive list of all exhibits to be offered at trial. As to each listed exhibit, the list shall concisely describe it, identify it by identification marking, note the sponsoring party, and indicate whether the sponsoring party expects to offer it in evidence or may offer it if the need arises and whether objection is anticipated, and, if so, on what basis. The consolidated exhibit list (without the exhibits) shall be provided to the court with the trial briefs.
Counsel were provided with a form exhibit list which must be used at trial.
Reports of Final Pretrial Conference and Orders (Docket Item Nos. 181-1 and 187-2 at 8). That provision of those Orders, which is a provision routinely included in such orders by this Court, was intended to require counsel to meet together and consider the specific, identifiable exhibits each intended to offer at trial, to give opposing counsel timely notice of those exhibits, to discuss and determine if any of the proposed exhibits could be admitted without objection or by stipulation, and, if to be the subject of objection, to so signal to counsel and the Court with an indication of the likely basis of objection. It was intended that these, at least nominally collegial, endeavors would yield a single (e.g. thus the use of the word "consolidated" in the Orders) Exhibit List that reflected, for the convenience and economy of the Court and counsel at trial, the foregoing information. That requirement is also intended by the Court to require counsel to focus on evidentiary determinations and postures before commencement of trial that will expedite the performance of counsel at trial, even perhaps sharpening 192 counsels' understanding of the case and the problems of proof reasonably to be anticipated at trial, *192 as well as to alert the Court to likely evidentiary issues to be resolved at the trial so that their resolution can be

accomplished with a minimum of delay, a maximum of accuracy, and a diminished need for extended rhetorical indulgences of counsel at trial.[1]

Properly performed with a benign, willing and professionally responsible spirit and will, the preparation of a Consolidated Exhibit List will yield, as it is intended to do, positive benefits for the Court's considerations of trial issues and opportunities for sharpened performance and understanding by counsel. Thus, the requirement is not one idly entered by this Court but is the considered result of the lessons derived and crystallized from almost thirty years of judicial trial experience. It is not intended to be ignored by counsel, blown off without comment, in this or any other case.

Far from responding to the requirement with any recognition, much less any zeal or respect, counsel in this case have continued to indulge their counterproductive animadversions to inter-counsel etiquette and professional courtesy and a complete disdain for orderly development of manageable and understandable trial conditions in this case by total disregard of the Court's Orders in respect to the preparation of a Consolidated Exhibit List. There now appears on the docket of this case a total of 30 pages of Exhibit Lists designated as original, "supplemental," "amended," and all repetitive and cumulative in nature. The Court, which has not been pleased for a long time with the conduct of counsel in this case, is even less pleased now after this performance.

The subject filings consist of the following:

1. Defendants' Exhibit List (Docket Item No. 260)-157 exhibits, five pages;

2. Plaintiffs'(?)[2] Exhibit List (Docket Item No. 262)-54 exhibits, five pages;

3. Defendants' Exhibit List (Docket Item No. 267)-157 exhibits, six pages;

193

*193 4. Defendants' Amended Exhibit List (Docket Item No. 269)-157 exhibits, six pages; and

5. Defendants' Second Amended Exhibit List (Docket Item No. 323)-284 exhibits, eight pages[3];

The resulting state of the docket creates the likelihood, if not the certainty, absent the Court's therapeutic intervention, of the need for the Court and counsel to weed through a morass of repetitive, cumulative, and confusing information in respect to pretrial notification of exhibits that will be fraught with great difficulty and which will unnecessarily impede the efficient progress of the trial process. Avoidance of such contretemps is precisely the result the Court's Order was intended to avoid. Counsel have never indicated to the Court that they have even attempted to create a Consolidated Exhibit List, and their filings give no hint that they have done so.

Accordingly, it is hereby ORDERED that all Exhibit Lists filed herein prior to this date be, and they are hereby, STRICKEN, including inter alia Docket Items Nos. 260, 262, 267, 269, and 323. It is hereby FURTHER ORDERED that counsel shall forthwith meet face to face and prepare for filing in accordance with the Court's prior Orders (Docket Items Nos. 181-1 and 187-2 at 8) a Consolidated Exhibit List to contain the information indicated, supra at 2, and that said Consolidated Exhibit List be filed not later than three (3) days prior to the actual commencement of trial herein. In default of such a compliant filing, the Court will not consider any exhibit offered at trial to be timely noticed and will determine in the case of each exhibit tendered at trial the consequences of that fact on the admissibility of the exhibit at trial.

I mean for counsel to comply with this requirement. This Order is intended to be fair warning of that intention.

[1] The need for the defining, regularizing, notice-giving effect of the Court's Order is especially pressing and important in the circumstances of this case. In accordance with standard practice in this Court see, Local Rule 16.4(b), the parties filed Final Pretrial Memoranda and Amended Memoranda (Docket Items Nos. 169, 170, 178, 256, and 257). In each filing, the parties indicated, respectively, as required by the Rule, "[A] list of the documents and things the party intends to offer at trial." Local Rule 16.4(b). In the initial filings, the listings were by expansive and undefined categories of documents, such as all documents produced or listed in discovery, all Knox County jail records for a specific period of years, all documents used in summary judgment proceedings, all documents produced in discovery of either party and "such other exhibits upon reasonable notice which were prepared or

produced in response to discovery and not referenced above." Docket Item # 170 VIII, 8, at 26. These expansive categories proposed by Plaintiffs were adopted by Defendants in their responding Pretrial Memoranda as to identification of exhibits intended to be offered by the Defendants at trial. As the filings went on, the listings of specific documents in addition to these categories grew longer and longer.
The end result of this imaginatively illusory technique was that no party, nor anyone else, could have any idea, much less assurance, as to what was really proposed to be offered as an exhibit at trial in terms of meaningful notice. Hence, there was created a hyper-invigorated compulsion and need in this case for the Court's Pretrial Order to force counsel to come to grips with the specifics of their respective designations of the trial exhibits in order to ensure the fairness and efficiency of the use of all exhibits at trial.
[2] This filing does not identify, by title or other notation, which party has filed it. The ECF automatic filing note does indicate that it was filed by Plaintiffs' counsel.
[3] The successive filings give no indication of what occasioned the need for repetitive filings or of any differences in identity of listed witnesses among the various lists. Both opposing counsel and the Court are left to their own devices to determine if there are, in fact, differences and if so, what they are.
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 Tardiff v. Knox County, 218 F.R.D. 332 (2003)
218 F.R.D. 332 United States District Court,
D. Maine.
Laurie TARDIFF, Plaintiff, v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox
County Sheriff, and Jane Doe and John Doe, in their individual capacities, Defendants.
No. CIV.02–251–P–C. | Nov. 5, 2003.
Attorneys and Law Firms
*333 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Lipman, Katz & McKee, Robert J. Stolt, Lipman, Katz & McKee, Augusta, ME, for Plaintiff.
*334 John J. Wall, III, Monaghan, Leahy, Hochadel & Libby, Portland, ME, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, for Defendants.
Opinion
ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
GENE CARTER, Senior District Judge.
Plaintiff Laurie Tardiff brings this action against Defendants Knox County, Daniel Davey, Knox County Sheriff, and individual corrections officers Jane Doe and John Doe for unlawful search pursuant to 42 U.S.C. § 1983. Ms. Tardiff now moves for certification of a plaintiff class in this action challenging the asserted policy and practice of conducting strip and visual body cavity searches of all individuals admitted to the Knox County Jail. Defendants object to the certification of the class. The Court will certify a class of Plaintiffs pursuant to Rule 23(b)(3) although the class will be defined more narrowly than Plaintiff has requested in her Motion for Class Certification.
I. Facts
The following allegations are found in Plaintiff Laurie Tardiff’s Amended Complaint. See First Amended Complaint (Docket Item No. 2). On February 7, 2001, at approximately 5:05 p.m., Laurie Tardiff was arrested,

pursuant to a warrant, at her residence in Rockland, Maine by Rockland Police Officer Patrick Allen and charged with tampering with a witness after having been charged previously with a violation of a harassment order issued by the Knox County Sheriff’s Department. Prior to leaving her home, Ms. Tardiff was required to empty her pockets in front of the arresting officer. Ms. Tardiff was then taken to the Knox County Jail. After the intake procedure was complete, Ms. Tardiff was taken to a shower area, and a female corrections officer ordered her to disrobe to be searched. Once naked, she was ordered to squat and cough, exposing her vagina and anal cavity to the corrections officer. Ms. Tardiff was required to repeat the squat-and-cough procedure three times. Ms. Tardiff was held at the Knox County Jail for twenty-three hours before being released on bail.
II. Proposed Class
In addition to the facts surrounding her own arrest and admission to the Knox County Jail, Plaintiff alleges the following facts with respect to a proposed class of plaintiffs. It is the custom and practice of the Knox County Sheriff’s Department to strip search all men and women taken into the custody of the Knox County Corrections Department regardless of whether they are charged with a misdemeanor or felony. First Amended Complaint ¶¶ 36, 37. Plaintiff further alleges that she:
seeks to represent a class of men and women who were admitted to the Knox County Jail while awaiting bail to be set, or for an initial court appearance, or were arrested on arrest warrants, or charged with misdemeanors, or charged with felonies which would not give rise to a reasonable suspicion of hiding contraband, drugs or weapons on their bodies. Included in this class are men and women who have been taken into custody by the Knox County Sheriff’s Department, the Maine State Police, and the various police departments of Knox County. All the men and women of the class were incarcerated and housed at the Knox County Jail in Rockland, Maine.
Plaintiff and these other men and women have all been unlawfully subjected to strip searches and visual body cavity searches due to custom and practice adopted by Knox County and the Knox County Sheriff and implemented by the Knox County Sheriff’s Department. The custom and practice of Knox County and the Sheriff require every person committed to the custody of Knox County Jail to be strip searched and subjected to a visual body cavity search without any reason to
1

Tardiff v. Knox County, 218 F.R.D. 332 (2003)
believe a strip search or visual body cavity search is necessary or constitutionally permissible.
First Amended Complaint ¶¶ 2–3. Plaintiff further alleges that the searches violate Knox County’s written policy. First Amended Complaint ¶ 23. Based on these *335 allegations, Plaintiff’s Motion for Class Certification requests that the following class be certified:
All persons who, from November 19, 1996 forward, were or who will in the future be
a. taken into custody by the Knox County Sheriff’s Department; and
b. subjected to a routine strip search and visual body cavity search at the Knox County Jail pursuant to the policy, practice or custom of the Knox County Sheriff’s Department.
Motion for Class Certification (Docket Item No. 9) at 1– 2.
III. Discussion
[1] [2] [3] [4] Courts have considerable discretion in determining whether to certify a class. Dionne v. Bouley, 757 F.2d 1344, 1355 (1st Cir.1985). However, the court must undertake a “rigorous analysis” to determine if the requirements for certification are met. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The burden is on the party seeking certification to establish that class certification is appropriate. Id. at 157–58, 102 S.Ct. 2364. To obtain class certification, Plaintiff must establish the four elements of Federal Rule of Civil Procedure 23(a) and that one of the elements of Rule 23(b) is applicable. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir.2003). The initial inquiry required by Rules 23(a) and (b) does not involve an examination of the merits of the underlying case but, rather, serves the limited purpose of determining whether a class action is the most appropriate mode of adjudicating the plaintiff’s claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Defendants do not challenge Plaintiff’s ability to establish any of the Rule 23(a) elements. Instead, Defendants argue that certification under Rule 23(b) is not appropriate. Plaintiff relies on 23(b)(2) and 23(b)(3), under which a class action may be maintained if:
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(2) and (b)(3).1

1

Defendants contend that the proposed class should not

be certified pursuant to Rule 23(b)(2) because the

primary relief sought by the class is monetary damages

and that Plaintiff lacks standing to seek injunctive

relief. Because the Court concludes that the class is

properly certified pursuant to Rule 23(b)(3), it is not

necessary to address (b)(2) certification.

[5] Rule 23(b)(3) first requires Plaintiff to demonstrate not only that she shares common questions of law or fact with the proposed class but also that these common questions “predominate over any questions affecting only individual members.” The proposed class set forth in Plaintiff’s Motion for Class Certification is significantly broader than the class Plaintiff proposed in the First Amended Complaint in two respects. First, the class proposed in the motion to certify the class appears to include individuals already convicted of crimes and generally housed with the inmate population at the jail.2 The Court believes that strip searches *336 of arrestees temporarily detained in a holding cell and adjudicated inmates who are members of the general jail population present sufficiently different factual and legal issues to prevent Plaintiff from satisfying the common questions requirement. Accordingly, inmates who are members of the general Knox County Jail population will be excluded from the class.

2

The Court’s belief is confirmed by the inclusion of the

affidavit of Judy Carter of Waldoboro, Maine as a

potential member of the class in support of the Motion

for Class Certification. In describing her experience at

the Knox County Jail, Ms. Carter states that she was

arrested for operating a motor vehicle under the

influence of alcohol on November 19, 1998. Affidavit

of Judy Carter, attached as Exhibit 5 to Plaintiff’s

Motion for Class Certification at 1. Ms. Carter was

sentenced to twenty-four hours in jail at the Knox

County Jail and when she returned to the jail to serve

her sentence on December 9, 1999, she asserts that she

2

Tardiff v. Knox County, 218 F.R.D. 332 (2003)
was strip searched. Id. at 2.
[6] [7] Second, the class proposed in the motion to certify appears to include individuals charged with drug or violent offenses. There are individual factual issues regarding whether reasonable suspicion exists to believe that arrestees charged with drug offenses or crimes of violence may be hiding contraband that are generally not presented by arrestees who are charged with offenses that do not involve drugs or violence. Therefore, the Court will exclude those individuals from the class as well. The Court finds that an appropriate class to consider for certification, with Ms. Tardiff serving as representative, is essentially the class that Plaintiff originally proposed in her First Amended Complaint:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or
(3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.
Given the refined class, a common factual question exists as to whether Defendants engaged in a policy or practice under which all members of the class were searched without individualized reasonable suspicion. They claim to have suffered the same type of injuries and are pursuing the same legal theories. The common legal question presented by the members of the abovedescribed class is whether that policy or practice of strip and visual body cavity searching all temporary detainees not charged with drug or violent crimes is unconstitutional and, if so, whether some or all of the Defendants may be held responsible. With the narrowed class definition, the allegations of Ms. Tardiff closely track the claims of the class and share a common legal theory: namely, that these searches were unconstitutional because they were conducted pursuant to a blanket strip and visual body cavity search policy and practice rather than based on a reasonable suspicion that the individuals searched were concealing weapons or contraband.
Defendants contend that class certification is inappropriate under Rule 23(b)(3) because a plethora of

individual factual issues predominate over common questions. Specifically, Defendants assert that in order to determine whether any individual member of the class is entitled to relief, it will be necessary to determine whether the individual was searched, why the individual was searched, the nature of the search itself, the place in which the search was conducted, and the manner in which it was conducted. However, the questions of whether the individual was searched and why the individual was searched are not at issue, because the narrowed class definition includes only those individuals who were strip and visual body cavity searched without reasonable suspicion that they were carrying contraband. From the allegations contained in the Amended Complaint, it does not appear that the place, nature, or manner of the search differed for Plaintiff or members of the proposed class. Given the alleged uniform and indiscriminate nature of the strip and visual body cavity search policy and practice at issue, it appears that liability can be determined on a class-wide rather than an individual basis.
*337 [8] Defendants also assert that individual questions relating to the number of times the person was searched, the place in which the search occurred, the nature of the search, and the manner in which it was conducted, as well as specific damages claimed by individual class members, may result in damage awards that range from nominal damages to substantial compensatory and punitive damages. As discussed above, Defendants’ argument that there will be varied factual scenarios regarding the place, nature, and manner of the searches if the proposed class is certified is not supported by the record at this time. Although there may be class members who were searched more than once and an individualized examination of the impact of the searches on specific class members may be necessary, the potential for differing amounts of recovery does not automatically preclude class certification. See Smilow, 323 F.3d at 40–41; Samuel v. University of Pittsburgh, 538 F.2d 991, 995 (3rd Cir.1976). Should a genuine problem arise due to variability in damage claims, the Court may consider other options, including decertifying the class, at that time.
[9] The second requirement under Rule 23(b)(3) is that Plaintiff must demonstrate that a class action is a fair and efficient method of adjudicating the controversy and would be superior to other methods. With respect to superiority, Defendants argue that because of the availability of attorney’s fees for the prevailing party when a constitutional violation is found, Plaintiff, as well as each potential class member, has a means to make individual suits economically feasible. While Defendants correctly point out that attorney’s fees are permitted by statute for any successful plaintiff in this type of action, the Court finds it unlikely that many class members would pursue these claims on their own. Moreover, resolution of the liability and damages issues within the context of a class action is likely to be a far more efficient
3

Tardiff v. Knox County, 218 F.R.D. 332 (2003)
method of adjudication than the individual assertion of law suits grounded on the same set of facts. Because Plaintiff has satisfied all the requirements of Rule 23, the Court will certify the class as the Court has defined it.

Parallel Citations
57 Fed.R.Serv.3d 308
	  

4

 
 Tardiff v. Knox County, 224 F.R.D. 522 (2004)

224 F.R.D. 522 United States District Court,
D. Maine.
Laurie TARDIFF, Plaintiff, v.
KNOX COUNTY, et al., Defendants.
No. CIV. 02-251-P-C. | Nov. 10, 2004.
Attorneys and Law Firms
*522 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, Robert J. Stolt, Lipman, Katz & McKee, Augusta, ME, for Laurie Tardiff, Plaintiff.
John J. Wall, III, Monaghan, Leahy, Hochadel & Libby, Portland, ME, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, for Knox County, Daniel Davey, In His Individual Capacity, and in his Official Capacity as Sheriff of Knox County, Jane Doe, In Her Individual Capacity, Jane Doe, In His Individual Capacity, Defendants.
Opinion

ORDER DENYING DEFENDANTS’ OBJECTION TO AMENDED REPORT OF SCHEDULING
CONFERENCE AND REVISED SCHEDULING ORDER

CARTER, Senior District Judge.
Defendants in the above captioned action object to a decision of the Magistrate Judge requiring the disclosure of reinsurance agreements under Fed.R.Civ.P. 26(a)(1)(D).1 See Defendants’ Objection to Amended Report of Scheduling Conference and Revised Scheduling Order (Docket Item No. 46). This Court concludes that reinsurance agreements fall under the umbrella of Rule 26(a)(1)(D) and accordingly will affirm the Magistrate Judge’s Order.

1

Defendants also object to the Magistrate Judge’s denial

of Defendants’ request to conduct discovery of absent

class members. The Court finds that the Magistrate

Judge’s decision is not clearly erroneous or contrary to

law and thus will affirm the Magistrate Judge’s

decision.

I. FACTS
This is a class action suit brought under 42 U.S.C. § 1983 (2000) by Plaintiff Laurie Tardiff and others similarly situated. The factual circumstances giving rise to this case are set forth in this Court’s Order Granting Plaintiff’s Motion for Class Certification (Docket Item No. 21). See Tardiff v. Knox *523 County, 218 F.R.D. 332 (D.Me.2003), aff’d 365 F.3d 1 (1st Cir.2004).2

2

In certifying the class, this Court stated:

On February 7, 2001, at approximately 5:05 p.m.,

Laurie Tardiff was arrested, pursuant to a warrant,

at her residence in Rockland, Maine by Rockland

Police Officer Patrick Allen and charged with

tampering with a witness after having been

charged previously with a violation of a

harassment order issued by the Knox County

Sheriff’s Department. Prior to leaving her home,

Ms. Tardiff was required to empty her pockets in

front of the arresting officer. Ms. Tardiff was then

taken to the Knox County Jail. After the intake

procedure was complete, Ms. Tardiff was taken to

a shower area, and a female corrections officer

ordered her to disrobe to be searched. Once naked,

she was ordered to squat and cough, exposing her

vagina and anal cavity to the corrections officer.

Ms. Tardiff was required to repeat the squat-and-

cough procedure three times. Ms. Tardiff was held

at the Knox County Jail for twenty-three hours

before being released on bail.

Id.

The current discovery dispute arises out of Defendant Knox County’s participation in the Maine County Commissioners Association Self-Funded Risk Management Pool pursuant to 30-A M.R.S.A. ch. 117.3 Under the Maine statute, “[a] public[,] self-funded pool shall obtain excess insurance or reinsurance.... The insurance shall limit the exposure of the pool to a defined level both as to ultimate claims values and loss ratio at which recovery from the insurer will be realized.” 30-A M.R.S.A. § 2253(3). The pool in which Knox County participates obtained reinsurance coverage pursuant to the statute.

3

30-A M.R.S.A. § 2253(1) provides the coverage

powers for public self-funded pools:

Any public self-funded pool formed by 10 or more

municipalities or school administrative districts or

an organization representing 10 or more political

subdivisions may provide risk management and

coverage for pool members and employees of pool

1

Tardiff v. Knox County, 224 F.R.D. 522 (2004)
members, for acts or omissions arising out of the scope of their employment, including any of the following:
A. Casualty insurance, including general and professional liabilities coverage, but excluding workers’ compensation insurance provided under Title 39-A; B. Property insurance, including marine insurance and inland navigation, transportation, boiler and machinery insurance coverage; C. Automobile insurance and protection against other liability and loss associated with the ownership of motor vehicles; D. Surety and fidelity insurance coverage; and E. Environmental impairment insurance coverage.
II. DISCUSSION
[1] Fed.R.Civ.P. 72 discusses the responsibilities of magistrate judges in terms of nondispositive and dispositive pretrial matters. A nondispositive matter is one which is not dispositive of a claim or a defense of a party. Fed.R.Civ.P. 72(a). In reviewing a magistrate judge’s determination on a nondispositive pretrial matter, the district court “shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Id.; Allendale Mut. Ins. Co. v. Rutherford, 178 F.R.D. 1, 2 (D.Me.1998); see generally Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984).
[2] Fed.R.Civ.P. 26(a)(1)(D) provides for discovery of “any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Federal courts have held that reinsurance agreements are discoverable under Rule 26. See, e.g., Medmarc Cas. Ins. Co. v. Arrow Int’l, Inc., No. 01-CV-2394, 2002 WL 1870452, at *3 (E.D.Pa. July 29, 2002); Missouri Pac. R.R. Co. v. Aetna Cas. & Surety Co., No. 3:93-CV-1898-D, 1995 WL 861147, at *2 (N.D.Tex. Nov. 6, 1995); Nat’l Union Fire Ins. Co. v. Cont’l Illinois Corp., 116 F.R.D. 78, 84 (N.D.Ill.1987). The National Union Fire Insurance court found that reinsurance agreements were discoverable under Rule 26 for the following reasons:
Reinsurers (“person[s] carrying on an insurance business”) are insurers’ own insurers. If Insurers are held liable under the Policies, they will turn to their reinsurers for partial indemnification, as provided in the reinsurance agreements, for any “payments made to satisfy the judgment.” Insurers contend their

reinsurance agreements are not “insurance agreements” *524 under Rule 26(b)(2).4 True enough, reinsurance agreements are a special breed of insurance policy [actually, a contract of indemnity written by an insurer].... But the English language remains the same: Reinsurers “carry[ ] on an insurance business” and “may be liable ... to indemnify [Insurers] for payments made to satisfy the judgment” that Movants hope to obtain. Rule 26(b)(2) does not require that a party’s insurer be directly liable to the other party. It is totally irrelevant that the reinsurers would pay Insurers and not the defendants and that Movants cannot directly sue the reinsurers.

4

Fed.R.Civ.P. 26(b)(2), prior to its 1993 amendment,

addressed the discovery of insurance agreements.

Nat’l Union Fire Ins., 116 F.R.D. at 84.
Turning to the case at bar, the Magistrate Judge ordered that “[i]n addition to all insurance agreements, reservation-of-rights letters and related documentation which the defendants have either already produced to the plaintiff or agreed to produce, they shall produce all reinsurance agreements and related documents.” Amended Report of Scheduling Conference and Revised Scheduling Order (Docket Item No. 40) at 3. Because Plaintiff seeks monetary damages in the instant action, Fed.R.Civ.P. 26(a)(1)(D) requires Defendants to disclose the reinsurance agreements. Defendants contend that “[b]ecause the insurance purchased by the Risk Pool (the reinsurance) provides no benefit whatsoever to the member counties, and because it does not provide for payments to be made to satisfy part of all of a judgment or to reimburse the Defendants for any payments that they make to satisfy a judgment, the information is not discoverable.” Defendants’ Objection to Amended Report of Scheduling Conference and Revised Scheduling Order at 2. This contention is misplaced. Rule 26(a)(1)(D) requires disclosure when “any person carrying on an insurance business may be liable to satisfy part of all of a judgment” or “reimburse for payments made.” Contrary to Defendants’ contention, the inquiry under Rule 26(a)(1)(D) focuses on whether payments are made at all, not on the identity of the recipient. Under the reinsurance agreements between the Pool and its reinsurers,5 the reinsurers are exposed to potential liability6 for reimbursing the Pool when judgment is entered against the Pool’s member. Accordingly, the reinsurance agreements fall within the scope of Rule 26(a)(1)(D) and must be disclosed to Plaintiff. The Magistrate Judge’s Order is not clearly erroneous or contrary to law.

5

After the parties filed their motions, the Court issued an

Order requiring in camera disclosure of the reinsurance

agreements (Docket Item No. 47). The documents were

2

Tardiff v. Knox County, 224 F.R.D. 522 (2004)
duly produced and the Court has carefully examined their contents.

6

The reinsurers’ liability only commences once a certain

monetary threshold is exceeded.

III. CONCLUSION
The decisions of the Magistrate Judge contained in the Amended Report of Scheduling Conference and Revised Scheduling Order be, and they hereby are, AFFIRMED.
	  

3

 
 Tardiff v. Knox County, 226 F.R.D. 10 (2005)

226 F.R.D. 10 United States District Court,
D. Maine.
Laurie TARDIFF, Plaintiff, v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox
County Sheriff, and Jane Doe and John Doe, in their individual capacities, Defendants.
Civ. No. 02-251-P-C. | Jan. 12, 2005.

Attorneys and Law Firms
*11 Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Robert J. Stolt, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiff.
John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, for Defendants.
Opinion

MEMORANDUM OF DECISION AND ORDER DENYING THE RELIEF REQUESTED BY PLAINTIFF’S MOTION IN AID OF IDENTIFICATION OF CLASS MEMBERS

GENE CARTER, Senior District Judge.
Now before the Court is Plaintiff’s Motion and Supporting Memorandum for Order in Aid of Identification of Class Members (Docket Item No. 53).1 After thoroughly reviewing the Motion, the responsive pleadings, as well as the affidavits and exhibits filed in connection with those pleadings, the Court concludes that Plaintiff should bear the burden of locating the identifying information on the detainees who were strip-searched during the class period. If the records kept by Defendants are inaccurate or incomplete, the Court will address that issue as it becomes relevant as this case proceeds.

1

On September 15, 2004, Plaintiff electronically filed a

Motion for Order in Aid of Identification of Class

Members (Docket Item No. 49) and a Memorandum in

Support of Motion for Order in Aid of Identification of

Class Members (Docket Item No. 50). Those pleadings

are substantively indistinguishable from Plaintiff’s

Motion and Supporting Memorandum for Order in Aid of Identification of Class Members (Docket Item No. 53) filed on September 16, 2004. Although the Court will treat the Motion as having been filed on September 15, 2004, the Court will refer to the Motion with Docket Item No. 53.
[1] [2] This Motion raises the issue of who should bear the burden of identifying class members for purposes of sending notice to those individuals. The general rule is that Plaintiff must bear the burden and initial cost of identifying class members entitled to receive individual notification under Rule 23(c). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The case law has developed two exceptions to this general rule, neither of which is applicable in this case. Plaintiff contends, however, that the Knox County Jail’s failure to obey the law in its record-keeping thwarts the identification of class members and, therefore, asks this Court to order Defendants to produce a comprehensive list of all detainees and to produce copies of booking sheets for each detainee during the class period.
The Maine statute governing strip searches states, in relevant part, “[e]ach strip search or body cavity search shall be recorded in a log kept by the Department of Public Safety, sheriff’s department or police department indicating the person who ordered the search, the name of the arrestee and the parts of the body searched.” 5 M.R.S.A. § 200-G(2)(D). The various sample log sheets submitted by the parties in connection with this motion appear to indicate, at least *12 in some instances, the names and addresses of detainees who were strip searched. If Defendants had maintained a discrete log for strip searches detailing the information required to be kept by Maine statute, Attorney General regulations, and Defendants’ own internal procedures, as Plaintiff suggests, it would have made the identification of class members infinitely simpler. The Court does not, however, understand section 200-G(D) to require, as Plaintiff contends, the maintenance of a “separate log” detailing the information on detainees who are strip searched. Although it appears from the record made on this motion that all of the information required to be included in the log entry for each strip search by section 200-G(D), the Attorney General’s regulations on strip searches, and Defendants’ own internal procedures was not kept, it is not clear how that default will affect the effort to identify class members. It is premature, at this time, to address that issue. Any issue generated regarding the completeness of the records maintained by Defendants necessary to accurately identify members of the class can be raised in a proper motion.
1

Tardiff v. Knox County, 226 F.R.D. 10 (2005)
After full consideration of this matter, the Court finds that Plaintiff is best suited to make the “reasonable effort” required by Rule 23 to identify the class members from the materials that were maintained by Defendants. If substantial inadequacies are noted, Plaintiff shall submit a written report to the Court detailing any deficiencies in the records and what information, if any, required to be maintained by these authorities is unavailable for any detainee proposed to be a member of the class. The Court will reserve ruling on Plaintiff’s Motion for Approval of Notice to the Class (Docket Item No. 48) until the Court can determine whether further steps are necessary to assure that all potential class members have been identified and that they receive “the best notice practicable under the circumstances.” See Fed.R.Civ.P. 23(c)(2)(B).
Accordingly it is ORDERED that:
(1) the relief requested by Plaintiff’s Motion in Aid of Identification of Class Members (Docket Item No. 53) be, and it is hereby, DENIED;
(2) consistent with this Memorandum of Decision and

Order, Plaintiff shall conduct the additional discovery to identify the class members by March 14, 2005, and file, if necessary, a written report with the Court detailing any deficiencies in the records and what information, if any, required to be maintained by these authorities is unavailable for any detainee proposed to be a member of the class by March 30, 2005;
(3) decision on Plaintiffs’ Motion for Approval of Notice to the Class (Docket Item No. 48) be, and it is hereby, RESERVED;
(4) the deadline to file all dispositive motions, and all Daubert and Kumho motions challenging expert witnesses with supporting memoranda shall be extended until May 16, 2005;
(5) if necessary, the Court will place this case on the next available trial list once it has ruled on any dispositive motions.
	  

2

 
 465 F.Supp.2d 14 (2006)
Dale DARE, on behalf of himself and on behalf of others similar situated, Plaintiffs v.
KNOX COUNTY and Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C.
United States District Court, D. Maine.
December 18, 2006.
Benjamin James Smith, Sumner H. Lipman, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, Portland, ME, for Defendants.
ORDER ON MOTION FOR APPROVAL OF THIRD FINAL CLASS SETTLEMENT AGREEMENT
GENE CARTER, Senior District Judge.
This is a class action lawsuit over strip searches of arrestees at the Knox County Jail. The Court previously certified a class and the Court of Appeals affirmed the certification. Tardiff v. Knox County, 218 F.R.D. 332 (D.Me.2003), affd, 365 F.3d 1, 7 (1 st Cir.2004).[1] The parties proposed 15*15 for preliminary approval an agreement settling their dispute (Docket Item No. 351). They requested that the Court preliminarily approve the settlement for issuance of class-wide notice. The Court held a hearing on this motion on October 24, 2006[2] and declined to preliminarily approve that Agreement. See Docket Item No. 368.
The Court notes that the agreement does now provide for a second opportunity for putative class members to request exclusion as permitted by Federal Rule of Civil Procedure 23(e)(3). See Third Final Settlement Agreement (Docket Item No. 376) VI, ¶ 10, at 10; Order on Motion for Approval of Class Settlement (Docket Item No. 368).

The Court further notes that the parties have achieved resolution by agreement of all issues respecting the entry of injunctive relief by the parties agreeing to the Court's entry of its Amended Proposed Permanent Injunction, see Docket Item No. 364. The Third Final Settlement Agreement now provides specifically:
"The Parties understand that the Court will issue an injunction[,] the purpose of which will be to ensure the Defendants' compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in the Court's Amended [Proposed] Permanent Injunction Pursuant to Settlement Agreement (Docket Item No. 364), and all parties waive their rights to appeal the entry of, or terms of, this injunctive Order."
See Third Final Settlement Agreement (Docket Item No. 376) at 3^; Court's Amended Proposed Permanent Injunction Pursuant to Settlement Agreement at 1 (Docket Item No. 364); Order on Motion for Approval of Class Settlement (Docket Item No. 368) at 3.
Otherwise, the Court finds that the notice that the parties have proposed with the revisions made on the record by this 16*16 Court today amounts to "notice in a reasonable manner" as required by Rule 23(e)(1)(B). The Court hereby ORDERS that:
(1) The Third Final Settlement Agreement (Docket Item No. 376-1 to 376-8) be, and it is hereby, PRELIMINARILY APPROVED for purposes of issuance of direct class-wide notice and further proceedings, as revised, and that direct class-wide notice thereof issue forthwith as per Docket Item No. 376-2 as revised;
(2) Any motion for attorney's fees and nontaxable costs shall be filed by such a time that the Rule 23(h)(1) notice of the fee request can be combined with the Rule 23(e) notice of settlement and be sent to the class at the same time and that any such motion be supported in detail.See Weinberger v. Great Northern Nekoosa Corp., 801 F.Supp. 804 (D.Me. 1992);
(3) The exhibits to the Third Final Settlement Agreement (Docket Item No. 376-1) that is, Docket Item Nos. 376-2 through 376-8, be, and are hereby APPROVED as revised;
(4) All putative class members may exercise a right to opt out of the Third Final Settlement Agreement in conformity with the Agreement's terms;
(5) A hearing under Rule 23(e)(1)(c) is hereby scheduled to take place on April 23, 2007 at 10:00 a.m. on whether the settlement is fair, reasonable and adequate; whether any requests for attorney fees and nontaxable costs should be allowed and, if so, the extent of such allowance; and resolution of any other issues then properly before the Court. The

Court will hear appropriate objections on all those matters at that time. See Rule 23(e)(4)(A), (h)(2) and (h)(3);
(6) The Court's Permanent Injunction Pursuant to Third Final Settlement Agreement (Docket Item No. 379) shall issue forthwith.
The Court does not intend this order to be a preliminary fairness determination. Because, as the Court has indicated in its prior Order, a judicial determination of "preliminary fairness" unjustifiably suggests a headwind against objections to the settlement agreement, the Court will only determine at the final approval hearing whether the proposed Third Final Settlement Agreement is fair, reasonable, and adequate to the class action settlement in this case.
The Court NOTES that Ms. Tardiff, the previously designated class representative, presently remains as a putative class member. The Court is not asked to make, and does not make, any decision as to her rights in this litigation and intimates no opinion on any matter bearing on such subject, or whether she is subject to being bound by any Settlement Agreement proposed herein or that may be finally approved by the Court. The Court's ultimate resolution of any such issues, if any, shall not be a basis for any party or class member to challenge, inter partes, the viability or enforceability of the Third Final Settlement Agreement of the class action, if it is finally approved by the Court.
It is FURTHER ORDERED that class counsel proceed with the execution of the orders and instructions provided for herein necessary to the implementation of the settlement preparatory to the final fairness hearing on April 23, 2007.
[1] The original putative class member designated as the named plaintiff, Laurie Tardiff, was permitted to withdraw as a class representative by the Court's Order of October 24, 2006 (Docket Item No. 367) and Dale Dare, another original putative class member, was substituted for her by that Order. The case is now properly styled Dare v. Knox County, et al., Civ. No. 02-251-P-C.
[2] As a result of prior settlement negotiations of the parties in conference with Chief Judge Singal, the class counsel filed on October 10, 2006 a proposed Final Settlement Agreement (Docket Item No. 339) with a Motion Seeking Preliminary Approval of Class Settlement (Docket Item No. 338). The Defendants' counsel submitted on the same date its own version of a Final Settlement Agreement (Docket Item No. 342). The Court held a conference/hearing with counsel and the parties on October 11, 2006 in open court, and it appeared that there were significant variations in the two proposals. The parties were left to resume negotiations following the conference/hearing to see if a definitive proposed Settlement Agreement could be arrived at by them. See Transcript (Docket Item No. 357). They subsequently filed a second Settlement Agreement (Docket Item No. 351).
The situation in respect to settlement was further complicated by the position taken by the named class representative, Laurie Tardiff, at the conference/hearing that she objected to the terms of the Settlement and wished to withdraw as class representative in the action. The Court advised her to promptly consult individual counsel and on October 13, 2006 new counsel entered an appearance on her behalf (Docket Item Nos. 346 and 349). Since then, class counsel has filed a Motion to Strike Laurie Tardiff as Class Representative (Docket Item No. 350), which was later withdrawn (Docket Item No. 354). The Court subsequently granted a Motion, filed by class counsel, to Substitute a Party, Dale Dare, as Class Representative (Docket Item No. 355) and a Motion filed by Ms. Tardiff's personal counsel to withdraw Ms. Tardiff as Class Representative (Docket Item No. 356).

The Court scheduled all these pending matters for further conference/hearing on October 24, 2006. A further conference of the Court and counsel was held on the record (See Docket Item No. 375) on November 27, 2006. As a result of further negotiations of counsel, the presently pending Third Final Settlement Agreement (Docket Item No. 376) has been filed and substituted for Docket Item No. 351. It is this latter agreement on which the Court now acts.

 
 465 F.Supp.2d 17 (2006)
Dale DARE, on behalf of himself and on behalf of others similar situated, Plaintiffs. v.
KNOX COUNTY and Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C.
United States District Court, D. Maine.
December 18, 2006.
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. DiPrima, Law Office of Frank P. DiPrima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Mccloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
THE COURT'S PERMANENT INJUNCTION PURSUANT TO THIRD FINAL SETTLEMENT AGREEMENT
GENE CARTER, Senior District Judge.
The Court has now preliminarily approved the Third Final Settlement Agreement (Docket Item No. 376-1) proposed by the parties herein. Order on Motion for Approval of Third Final Settlement Agreement (Docket Item No. 378). The Agreement, as approved, provides that:
The Parties understand that the Court will issue an injunction the purpose of which will be to ensure the Defendants' compliance with Fourth Amendment law governing strip searches. The parties have agreed on the terms of the injunction which are set forth in the Court's Amended Permanent Injunction Pursuant to Settlement Agreement (Docket Item No. 364), and all parties waive their rights to appeal the entry of, and the terms of this Injunctive Order.

Settlement Agreement (Docket Item No. 376-1), 11(B)(2), at pp. 3-4. It is the purpose of this injunction to ensure that the Defendants comply with Fourth Amendment law governing strip searches.
The Agreement also provides:
"The Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration."
Id. ¶ III(1), at p. 6.
NOW, THEREFORE, in the exercise of the enforcement authority conferred on the Court by Paragraph III(l) of the Settlement Agreement and by the All Writs Act, 28 U.S.C. § 1651, it is hereby ORDERED that Knox County, its Sheriff, the Sheriffs appointees and all other jail employees be, and are hereby ENJOINED from strip searching (see Wood v. Hancock County, 354 F.3d 57 (1st Cir.2003)(defining "strip search")) any persons charged with a crime that does not involve weapons, violence or controlled or scheduled substances during the jail admission process— i.e., while such persons are being held awaiting bail or a first court appearance, or after being arrested on a default or other warrant—unless the officer or person conducting the strip search has reasonable suspicion to believe the person does possess a weapon, controlled or scheduled substances, or other contraband.
IT IS FURTHER ORDERED that Defendants and Sheriff Davey's successors in office shall be required to keep at the Knox County Jail a written log that shall record every instance in which an individual 18*18 is hereafter determined to be subject, for admission purposes at the Knox County Jail, to a strip search procedure, the following information:
(1) The date and time of the search procedure;
(2) The name of each officer participating in the search procedure;
(3) A brief statement of facts found to constitute "reasonable suspicion" for a strip search, to include the crime with which the individual was charged; and
(4) The name of the officer who made the determination that "reasonable suspicion" warranted a strip search and who approved the search.
Such log shall be available for public inspection at reasonable times during the County's business day in a manner similar to 1 M.R.S.A. § 408.

IT IS FURTHER ORDERED that the obligations of the Defendants under this Injunction are intended to conform to Fourth Amendment law governing strip searches. In the event that future decisions of the U.S. Supreme Court, the U.S. Court of Appeals for the First Circuit, or the U.S. District Court for the District of Maine hold that jails may conduct strip searches that are expressly prohibited by this Injunction, the Defendants shall have the right to petition the Court for a modification of the Injunction consistent with the above-referenced decisions. Such petition shall be decided on a determination as to whether the requested modification is in conformity with the change in law, and it shall not be reviewed under a heightened standard of review. In the event the Plaintiff class opposes such a petition through counsel, the Plaintiff class shall be awarded reasonable attorneys fees if the Plaintiff class is the prevailing party with regard to the petition.

 
 Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)

2006 WL 2827604 Only the Westlaw citation is currently available.
United States District Court, D. Maine.
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C. | Sept. 11, 2006.
Attorneys and Law Firms
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.

Opinion
ORDER ON PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY BY DR. ROBINSON BEYOND THE SCOPE OF DISCLOSURE
GENE CARTER, Senior District Judge.
*1 Now before the Court for pretrial consideration is Plaintiffs Motion to Exclude Testimony by Dr. Robinson Beyond the Scope of Disclosure (Docket Item No. 278). After full review of the written submissions on the Motion and despite any “rumblings” by defense counsel to the contrary notwithstanding, Defendant shall be limited at trial to admission of any of those opinions of Dr. Robinson within the scope of his expert witness designation and those fairly disclosed in his deposition (as defendants concede). The Court will rule on any objections to testimony alleged to be beyond the scope of articulated objections timely made at trial on the basis of the Court’s interpretation at the time of trial of the content of the designation and the deposition testimony.
SO ORDERED.
	  

1

 
 Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)

2006 WL 2827600 Only the Westlaw citation is currently available.
United States District Court, D. Maine.
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C. | Sept. 18, 2006.
Attorneys and Law Firms
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy Mccloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION (DOCKET ITEM NO. 294(1))
OF A PRIOR ORDER OF COURT
GENE CARTER, Senior District Judge.
*1 Before the Court for determination is Plaintiffs’ Motion for Reconsideration of a Prior Order of the Court (Docket Item No. 294(1)). Defendants have responded thereto (Docket Item No. 312). After full review of the written submissions of the parties and consideration of the issues properly generated by the Motion, this said Motion is hereby DENIED, the Court FINDING:
1) Said Motion is untimely filed;
2) The said Motion is in effect a Supplemental Motion for Summary Judgment which is not properly supported as required by Fed.R.Civ.P. 56 and Local Rule 56. See, Pew v. Scopino, 161 F.R.D. 1 (D.Me.1995);
3) The said Motion is now predicated by Plaintiffs only on disputed hearsay evidence; and
4) The record reflects numerous genuinely disputed issues of material fact in the present record, resolution of which is necessary to a decision on the Motion.
	  

1

 
 Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)

2006 WL 2827603 Only the Westlaw citation is currently available.
United States District Court, D. Maine.
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C. | Sept. 18, 2006.
Attorneys and Law Firms
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & McKee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
Opinion
ORDER DENYING PLAINTIFFS’ MOTION FOR JUDICIAL DETERMINATION OF THE NUMBER
OF PEOPLE IN THE CLASS

GENE CARTER, Senior District Judge.
*1 Before the Court for determination is Plaintiff’s Motion for Judicial Determination of the Number of People in the Class (Docket Item No. 298). Defendants have responded thereto (Docket Item No. 310). After full review of the written submissions of the parties and consideration of the issues properly generated by the Motion, the said Motion is hereby DENIED, the Court FINDING that:
1) There is no colorable legal basis for the Court to act favorably on the Motion on the basis of Plaintiffs’ assertion, which is disputed by the Defendants, that Defendants failed to keep sufficient records to allow the determination of the identity of the members of the Class, and Plaintiffs do not cite any precedent or authorities for that proposition;
2) There is a genuine dispute of material fact as to whether Defendants did, in fact, keep the records they were required to keep;
3) There is a genuine dispute of material fact as to the accuracy and reliability of such records as it may be shown Defendants did, in fact, keep, if any; and
4) There is no legal basis to shift the burden of proof to establish class membership from Plaintiff to Defendant (as the burden to establish exclusion from the class). The cases relied upon by Plaintiffs in seeking that relief are clearly distinguishable on the facts, unpersuasive, or fail to decide the precise issue here presented.
	  

1

 
 Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)

2006 WL 2827556 Only the Westlaw citation is currently available.
United States District Court, D. Maine.
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C. | Sept. 19, 2006.
Attorneys and Law Firms
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Lipman, Katz & Mckee, Augusta, ME, Frank P. Diprima, Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiff.
Cassandra S. Shaffer, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, JOhn J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
Opinion
ORDER VACATING PRIOR ORDER RE: BIFURCATION FOR TRIAL AND DECERTIFYING CLASS ACTION ON ISSUES OF ELIGIBILITY FOR CLASS MEMBERSHIP AND DETERMINATION OF
INDIVIDUAL DAMAGES
GENE CARTER, Senior District Judge.
*1 Pursuant to the Court’s Procedural Order and Order to Show Cause (Docket Item No. 300) entered on September 9, 2006, the Court now, having reviewed the written responses of the parties to the said Procedural Order and Order to Show Cause, See, Docket Item Nos. 311 and 313, and FINDING that:
1) The questions of law or fact common to the membership of the Class on the issues of liability do not predominate over the multitude of factual questions that affect potential, individual members of the Class for the purposes of determining membership in the Class and the amount of recoverable compensatory, nominal and punitive

damages of individual class members, if any;
2) That a class action is not superior to other available methods for the fair and sufficient adjudication of existing controversies as to class membership and determination of individual amounts of recoverable compensatory and punitive damages;
3) Contrary to the Plaintiffs’ assertion, Plaintiffs’ Response at 2, the alleged “narrow” definition of the Class does not obviate the need for individualized fact-finding on behalf of each member of the Class on the subject issues in view of the presence of individual fact patterns for each class member. Further, there is no basis for the treatment of such fact-findings as “an administrative task” of “culling Plaintiffs’ list of presumed class members,” Plaintiff’s Response at 3, and that to do so would violate Defendants’ due process right to a jury finding on disputed facts bearing on individual class membership and damages computations;
4) Plaintiffs’ assertion that common issues of fact predominate on issues of damages determination, Plaintiffs’ Response at 4, are not supported on the existing record;
5) The cases of Azimi v. Jordan’s Meats, Inc., 456 F.3d 228 (1st Cir.2006) and Carey v. Piphus, 435 U.S. 247 (1978) properly provide the rule for decision on certain aspects of the damages issues in this case;
6) The Plaintiffs’ suggestion of alternative procedures of nonjury determination of the disputed fact and for court-imposed mediation of those issues are not supported by law in the face of the Defendants’ strenuous insistence upon having resolution of these disputed facts by jury trial; and
7) Plaintiffs’ objections are otherwise unfounded and unpersuasive.
WHEREFORE, it is hereby ORDERED that:
1. The case be, and it is hereby, BIFURCATED for trial into resolution by jury trial of the remaining issues as to the liability of Defendants on a class basis as now certified (without consideration of the identity of individual class members), that portion of the case to go forward as now scheduled on October 3, 2006, and subsequent individualized jury determinations of all issues of individual eligibility for class membership and assessment of the damages, if any, of individual class members on a non-class basis; and the case is DECERTIFIED as a class action on the said latter
1

Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)
categories of issues; and
*2 2. The non-class action portion of the proceedings shall proceed as the Court shall subsequently order after completion of the trial of the liability portion of the case.

Such subsequent jury trials will be scheduled by separate order of the Court.
	  

2

 
 Tardiff v. Knox County, Not Reported in F.Supp.2d (2006)

2006 WL 3043223 Only the Westlaw citation is currently available.
United States District Court, D. Maine.
Laurie TARDIFF, individually and on behalf of others similarly situated, Plaintiffs v.
KNOX COUNTY, Daniel Davey, in his individual capacity and in his official capacity as Knox County Sheriff, Defendants.
Civil No. 02-251-P-C. | Oct. 24, 2006.
Attorneys and Law Firms
Dale F. Thistle, Law Office of Dale F. Thistle, Newport, ME, Sumner H. Lipman, Benjamin James Smith, Lipman, Katz & McKee, James A. Billings, Robert J. Stolt, Tracie L. Adamson, Augusta, ME, William D. Robitzek, Berman & Simmons, P.A., Lewiston, ME, Frank P. Diprima Law Office of Frank P. Diprima, Morristown, NJ, for Plaintiffs.
Cassandra S. Shaffer Wheeler & Arey, P.A., Peter T.

Marchesi, Waterville, ME, John J. Wall, III, Monaghan Leahy, LLP, Timothy P. Fadgen, Prescott, Jamieson, Nelson & Murphy, LLC, George T. Dilworth, Kimberly L. Murphy, McCloskey, Mina & Cunniff, LLC, Portland, ME, for Defendants.
Opinion
ORDER ON MOTIONS IN RESPECT TO CHANGE OF CLASS REPRESENTATIVE
GENE CARTER, Senior District Judge.
*1 After hearing counsel this date, and there being no objections to either Motion, the Court hereby GRANTS Plaintiff Laurie Tardiff’s Motion to Withdraw as Class Representative (Docket Item No. 356), and Plaintiff Class’s Motion to Substitute Dale Dare as Class Representative (Docket Item No. 355) and ORDERS that this matter proceed with Mr. Dare acting as the class representative until further order of this Court, if any.
	  

1

 
 CLOSED, SETTLED, STANDARD
U.S. District Court District of Maine (Portland) CIVIL DOCKET FOR CASE #: 2:02−cv−00251−GC

DARE v. KNOX COUNTY, et al Assigned to: JUDGE GENE CARTER Referred to: MAGISTRATE JUDGE DAVID M. COHEN Demand: $0 Case in other court: Boston, 04−01065 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/17/2002 Date Terminated: 09/04/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

LAURIE TARDIFF TERMINATED: 10/24/2006

represented by DALE F. THISTLE LAW OFFICE OF DALE F. THISTLE 103 MAIN STREET P.O. BOX 160 NEWPORT , ME 04953 (207) 368−7755 Email: dthistle@myfairpoint.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

SUMNER H. LIPMAN LIPMAN, KATZ &MCKEE P.O. BOX 1051 AUGUSTA , ME 04332−1051 207−622−3711 Email: slipman@lipmankatzmckee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM D. ROBITZEK BERMAN &SIMMONS, P.A. P. O. BOX 961 LEWISTON , ME 04243 784−3576 Email: wrobitzek@bermansimmons.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

BENJAMIN JAMES SMITH LIPMAN, KATZ &MCKEE P.O. BOX 1051 AUGUSTA , ME 04332−1051 (207) 622−3711 Email: bsmith@lipmankatzmckee.com ATTORNEY TO BE NOTICED

FRANK P. DIPRIMA LAW OFFICE OF FRANK P. DIPRIMA 41 CONSTITUTION WAY MORRISTOWN , NJ 07960 (973)656−0251 Email: diprimalaw@aol.com ATTORNEY TO BE NOTICED

JAMES A. BILLINGS LIPMAN, KATZ &MCKEE P.O. BOX 1051 AUGUSTA , ME 04332−1051 207− 622−3711 Email: jbillings@lipmankatzmckee.com

Plaintiff DALE DARE
V. Defendant KNOX COUNTY

ATTORNEY TO BE NOTICED
ROBERT J. STOLT LIPMAN, KATZ &MCKEE P.O. BOX 1051 AUGUSTA , ME 04332−1051 207−622−3711 Email: rstolt@lipmankatzmckee.com ATTORNEY TO BE NOTICED
TRACIE L. ADAMSON LIPMAN, KATZ &MCKEE P.O. BOX 1051 AUGUSTA , ME 04332−1051 (207) 622−3711 Email: tadamson@lipmankatzmckee.com TERMINATED: 01/30/2008 ATTORNEY TO BE NOTICED
represented by BENJAMIN JAMES SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DALE F. THISTLE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
FRANK P. DIPRIMA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES A. BILLINGS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT J. STOLT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUMNER H. LIPMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TRACIE L. ADAMSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CASSANDRA S. SHAFFER WHEELER &AREY, P.A. 27 TEMPLE STREET P. O. BOX 376 WATERVILLE , ME 04901

Defendant
DANIEL DAVEY In His Individual Capacity, and in his Official Capacity as Sheriff of Knox County

207−873−7771 Email: cshaffer@wheelerlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN J. WALL , III MONAGHAN LEAHY, LLP P. O. BOX 7046 DTS PORTLAND , ME 04112−7046 774−3906 Email: jwall@monaghanleahy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
PETER T. MARCHESI WHEELER &AREY, P.A. 27 TEMPLE STREET P. O. BOX 376 WATERVILLE , ME 04901 873−7771 Email: pbear@wheelerlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
TIMOTHY P. FADGEN PRESCOTT, JAMIESON, NELSON &MURPHY, LLC 75 PEARL STREET PORTLAND , ME 04101 207/221−2079 Email: tpfadgen@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CASSANDRA S. SHAFFER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GEORGE T. DILWORTH MCCLOSKEY, MINA, CUNNIFF, &DILWORTH, LLC 12 CITY CENTER PORTLAND , ME 04101 (207) 772−6805 Email: USAME.FormerAusa@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN J. WALL , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PETER T. MARCHESI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KIMBERLY L. MURPHY MCCLOSKEY, MINA, CUNNIFF, &DILWORTH, LLC 12 CITY CENTER

Defendant JANE DOE In Her Individual Capacity TERMINATED: 04/19/2006
Defendant JOHN DOE In His Individual Capacity TERMINATED: 04/19/2006
Interested Party STEVEN CLARKE
Interested Party ADRIAN REED

PORTLAND , ME 04101 (207) 772−6805 Email: kmurphy@lawmmc.com ATTORNEY TO BE NOTICED
represented by JOHN J. WALL , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PETER T. MARCHESI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOHN J. WALL , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PETER T. MARCHESI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STEVEN CLARKE REG NO 4413 MAINE STATE PRISON 807 CUSHING ROAD WARREN, ME 04864 PRO SE
represented by ADRIAN REED PO BOX 734 ROCKPORT, ME 04856 PRO SE

Date Filed 12/17/2002
12/17/2002 12/26/2002
12/26/2002
12/26/2002

#

Docket Text

1 COMPLAINT filed; FILING FEE $ 150.00 RECEIPT # 46871; jury demand (Service of Process Deadline 4/16/03 ) (dw) (Entered: 12/17/2002)

SUMMONS(ES) issued for KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE (dw) (Entered: 12/17/2002)

RETURN of Service Executed (on original complaint) as to DANIEL DAVEY 12/19/02; Answer due on 1/8/03 for DANIEL DAVEY (dw) (Entered: 12/27/2002)

RETURN of Service Executed (on original complaint) as to JANE DOE 12/19/02; Answer due on 1/8/03 for JANE DOE (dw) (Entered: 12/27/2002)

RETURN of Service Executed (on original complaint) as to JOHN DOE 12/19/02 Answer due on 1/8/03 for JOHN DOE (dw) (Entered: 12/27/2002)

12/26/2002 12/26/2002 12/27/2002 01/07/2003 01/07/2003
01/15/2003 01/15/2003 01/15/2003 01/15/2003 01/17/2003 01/22/2003
01/27/2003 01/28/2003 01/30/2003
02/07/2003

RETURN of Service Executed (on original compliant) as to KNOX COUNTY 12/18/02; Answer due on 1/7/03 for KNOX COUNTY (dw) (Entered: 12/27/2002)
2 AMENDED COMPLAINT by LAURIE TARDIFF amending [1−1] complaint jury demand (amending parties' capacities) (dw) Modified on 12/27/2002 Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 12/27/2002)
SUMMONS(ES) issued for KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE on amended complaint (dw) (Entered: 12/27/2002)
3 ANSWER to Complaint by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE (Attorney PETER T. MARCHESI), (mjl) (Entered: 01/07/2003)
4 SCHEDULING ORDER setting Discovery cutoff 5/13/03 ; Deadline for filing of all motions 5/20/03 ; Ready for Trial Date 8/4/03 ; ( signed by MAG. JUDGE DAVID M. COHEN ) cc: cnsl. CONSENT FORM mailed to pltf cnsl. (mnm) (Entered: 01/08/2003)
RETURN of Service Executed as to JANE DOE 1/2/03 Answer due on 1/22/03 for JANE DOE (mjl) (Entered: 01/15/2003)
RETURN of Service Executed as to JOHN DOE 1/2/03 Answer due on 1/22/03 for JOHN DOE (mjl) (Entered: 01/15/2003)
RETURN of Service Executed as to DANIEL DAVEY 1/2/03 Answer due on 1/22/03 for DANIEL DAVEY (mjl) (Entered: 01/15/2003)
RETURN of Service Executed as to KNOX COUNTY 1/2/03 Answer due on 1/22/03 for KNOX COUNTY (mjl) (Entered: 01/15/2003)
5 ANSWER by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE (Attorney Peter Marchesi) to [2−1] amended complaint (mjl) (Entered: 01/17/2003)
6 MOTION by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE to Amend Scheduling Order − Reason: Extend Deadlines &Possibly Put Case On Complex Track ; Response to Motion due 2/12/03 for LAURIE TARDIFF (mjl) (Entered: 01/22/2003)
7 MOTION by LAURIE TARDIFF to Amend Scheduling Order − Reason: Assigned Case To The Complex Track and Extend Deadlines (mjl) (Entered: 01/28/2003)
Motion(s) referred: [7−1] motion to Amend Scheduling Order − Reason: Assigned Case To The Complex Track and Extend Deadlines referred to MAG. JUDGE DAVID M. COHEN (mjl) (Entered: 01/28/2003)
8 FIRST AMENDED ANSWER by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE (Attorney Peter Marchesi ) to [2−1] amended complaint (mjl) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 01/30/2003)
9 MOTION to Certify Class by LAURIE TARDIFF With Memo in Support.Responses due by 2/28/2003. (mjl, ) (Entered: 02/10/2003)

02/13/2003 02/13/2003
02/13/2003 02/13/2003 03/19/2003 03/31/2003 03/31/2003 03/31/2003 04/04/2003 04/04/2003 04/08/2003
04/09/2003 04/09/2003

Oral MOTION to Extend Time 30 Days To Respond To Motion For Class Certification by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 3/6/2003. (mjl, ) (Entered: 02/13/2003)
10 REPORT OF CONFERENCE OF COUNSEL AND ORDER re: Motion to amend scheduling order issued in this case (Docket No. 4) and during the conference, the defendants orally requested an additional 30 days to respond to the plaintiff's motion for class certification (Docket No. 9) ( Signed by Judge DAVID M. COHEN on 2/13/03. (See pleading No. 10 for amended scheduling order deadlines)(mjl, ) Modified on 2/13/2003 (mjl, ). (Entered: 02/13/2003)
ORDER granting Oral MOTION to Extend Time 30 Days To Respond To Motion For Class Certification filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY Signed by Judge DAVID M. COHEN on 2/13/03. (mjl, ) (Entered: 02/13/2003)
Set/Reset Deadlines as to 9 MOTION to Certify Class.Responses due by 3/31/2003.(mjl, ) (Entered: 02/13/2003)
NOTICE of Appearance by JOHN J. WALL III on behalf of DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY (mjl, ) (Entered: 03/19/2003)
11 RESPONSE to Motion re 9 MOTION to Certify Class filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Reply due by 4/11/2003. (mjl, ) (Entered: 03/31/2003)
12 AFFIDAVIT of Richard Robbins re 11 Response to Motion filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. (mjl, ) (Entered: 03/31/2003)
13 MOTION for Leave to File Response to Motion For Class Certifcation In Excess Page Limit by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 4/21/2003. (mjl, ) (Entered: 03/31/2003)
14 MOTION to Extend Time To File Reply To Motion For Class Certification On Or Before April 21, 2003 by LAURIE TARDIFF.Responses due by 4/25/2003. (mjl, ) (Entered: 04/04/2003)
15 MOTION for Leave to File Motion For Class Certification In Excess Of Page Limit by LAURIE TARDIFF.Responses due by 4/25/2003. (mjl, ) (Entered: 04/04/2003)
16 NOTICE of Hearing via t/c &in writing:Discovery Hearing set for 4/18/2003 09:00 AM in Hearing Room, Portland before MAG. JUDGE DAVID M. COHEN re: disputes presented in letter from Atty Stolt. Cnsl to confer in good faith per Local Rules and court's directive in an effort to resolve disputes.(slh, ) (Entered: 04/08/2003)
ENDORSEMENT granting 13 Motion for Leave to File, "4/8/03 Granted," Signed by Magistrate Judge DAVID M. COHEN on 4/8/03. (mo, ) (Entered: 04/09/2003)
ENDORSEMENT granting 14 Motion to Extend Time, "4/8/03 Granted without objection," Signed by Magistrate Judge DAVID M. COHEN on 4/8/03. (mo, ) (Entered: 04/09/2003)

04/09/2003 04/14/2003 04/14/2003 04/21/2003 04/21/2003 04/22/2003 05/13/2003 05/28/2003
08/07/2003 11/05/2003 11/05/2003 11/21/2003
01/14/2004
01/20/2004 01/20/2004 01/29/2004

ENDORSEMENT granting 15 Motion for Leave to File, "4/8/03 Granted without objection," Signed by Magistrate Judge DAVID M. COHEN on 4/8/03. (mo, ) (Entered: 04/09/2003)
Motions Taken Under Advisement: 9 MOTION to Certify Class(mjl, ) (Entered: 04/14/2003)
17 ORDER re: Discovery Dispute Surrounding Plaintiff's First Request For Production Of Documents Signed by Judge DAVID M. COHEN on 4/14/03. (mjl, ) (Entered: 04/14/2003)
18 MOTION for Leave to File Reply Memorandum In Excess Of Page Limits by LAURIE TARDIFF.Responses due by 5/12/2003. (mjl, ) (Entered: 04/22/2003)
19 REPLY to Response to Motion re 9 MOTION to Certify Class filed by LAURIE TARDIFF. (mjl, ) (Entered: 04/22/2003)
Motions Taken Under Advisement: 18 MOTION for Leave to File Reply Memorandum In Excess Of Page Limits, 9 MOTION to Certify Class(mjl, ) (Entered: 04/22/2003)
Motions Taken Under Advisement: 18 MOTION for Leave to File Reply Memorandum In Excess Of Page Limits(mjl, ) (Entered: 05/13/2003)
20 Minute Entry for proceedings held before Judge DAVID M. COHEN : Discovery Hearing held, Oral Order: discovery reopened and extended to 6/27/03 for the limited purpose of allowing the noticed depositions of John Hinkley and Richard Robbins to go forward and to legitimize the plaintiff's outstanding requests for admissions. Counsel to confer/agree on new deposition dates. (Court Reporter None) (mjl, ) (Entered: 05/29/2003)
***Set/Reset Deadlines : Remember to put on a trial list if appropriate, once there has been a ruling on the motion for class action by 10/1/2003.(mjl, ) (Entered: 08/07/2003)
21 ORDER granting 9 Motion to Certify Class By Judge GENE CARTER. (mjl, ) (Entered: 11/05/2003)
22 ORDER granting 18 Motion for Leave to File Motion granted. For the Court, Michelle J. Levasseur,DEPUTY CLERK:. (mjl, ) (Entered: 11/05/2003)
23 NOTICE re: Judge Carter will not be available for trial during January, February or March 2004, the time period during which the case is to be ready for trial, and that this case will therefore be placed on an April 2004 Trial List.(mjl, ) (Entered: 11/21/2003)
24 NOTICE OF APPEAL by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY (ORDER OF USCA granting defendants' petition for leave to appeal under Fed. R. Civ. P. 23(f)). Filing fee $ 255, receipt number 49846. (bfa, ) (Entered: 01/16/2004)
25 CLERK'S CERTIFICATE Re: 24 Notice of Appeal filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. Documents Sent to U.S. Court of Appeals: 1 − 25 (bfa, ) (Entered: 01/20/2004)
Certified and Transmitted Record on Appeal to US Court of Appeals re 24 Notice of Appeal (bfa, ) (Entered: 01/20/2004)
USCA Case Number 04−1065 for 24 Notice of Appeal filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX

04/28/2004 05/05/2004 05/06/2004
05/07/2004 05/13/2004 05/17/2004 05/18/2004
05/21/2004 05/21/2004 05/21/2004 05/26/2004 06/16/2004

COUNTY. (bfa, ) (Entered: 01/29/2004)
26 JUDGMENT of USCA re 24 Notice of Appeal − DECISION IS AFFIRMED Check for Receipt of Mandate on 5/28/2004. (mjl, ) (Entered: 04/29/2004)
27 MANDATE of USCA as to 24 Notice of Appeal filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. Affirmed. Check for Receipt of Appeal Record on 6/21/2004. (bfa, ) (Entered: 05/06/2004)
28 Minute Entry for proceedings held before Mag.Judge DAVID M. COHEN : Discovery Hearing held with Attys' Lipman &Thistle for pltf and Attys' Marchesi &Wall for dfts, Set Deadlines/Hearings for Joint Proposed Discovery and Motion Plan due by 5/17/2004. Parties ORDERED to confer re: their perceived respective further discovery needs and to make a good faith effort at reaching an agreement for alterations to the scheduling order, failing which the joint plan shall so note the parties respective positions on such items counsel are unable to agree on.(Court Reporter NONE) (slh, ) (Entered: 05/06/2004)
Appeal Record Returned: 24 Notice of Appeal (bfa, ) (Entered: 05/07/2004)
29 ORDER of USCA re: taxation of costs in the amount of $82.60 as to 24 Notice of Appeal filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY (bfa, ) (Entered: 05/13/2004)
30 Defendant &Plaintiff's Proposed Discovery and Motion Filing Plan by DANIEL DAVEY, KNOX COUNTY. (mjl, ) (Entered: 05/18/2004)
31 ORDER By Mag.Judge DAVID M. COHEN per t/c w/Attys' Wall &Stolt re 28 Discovery Hearing held 5/6/04, and 30 Proposed Discovery and Motion Filing Plans filed by DANIEL DAVEY, KNOX COUNTY, Set Deadlines: Joint Proposed Discovery and Motion Plan due by 5/21/2004. Per prior order of the court, the parties are ORDERED to confer re: their perceived respective further discovery needs and to make a good faith effort at reaching an agreement for alterations to the scheduling order, failing which the joint plan shall so note the parties respective positions on such items counsel are unable to agree on. (slh, ) (Entered: 05/19/2004)
32 Oral MOTION to Extend Time to File Joint Proposed Discovery &Motion Plan to May 26, 2004, by LAURIE TARDIFF. (slh, ) (Entered: 05/21/2004)
33 Oral ORDER granting 32 Motion to Extend Time to May 26, 2004, to File Joint Proposed Discovery &Motion Plan By Mag.Judge DAVID M. COHEN. (slh, ) (Entered: 05/21/2004)
Reset Deadlines Regarding Order on Motion to Extend Time: Joint Proposed Discovery and Motion Plan now due by 5/26/2004.(slh, ) (Entered: 05/21/2004)
34 JOINT Proposed Discovery and Motion Filing Plan by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY, LAURIE TARDIFF. (mjl, ) (Entered: 05/26/2004)
35 NOTICE of Hearing per tele−call to counsel: Scheduling Conference of Counsel set for 6/18/2004 04:00 PM in Hearing Room, Portland before MAG. JUDGE DAVID M. COHEN. This is a joint conference per the court's directive in this case and the NILSEN case, 02cv212ph. Any parties participating via telephone should arrange for placement of a conference

06/18/2004 06/18/2004
06/24/2004 06/25/2004 06/28/2004
06/28/2004 06/28/2004
06/28/2004

call to Chambers.(slh, ) (Entered: 06/16/2004)
36 Minute Entry for proceedings held before Mag.Judge DAVID M. COHEN : Scheduling Conference of Counsel held. Report &Order to issue. (Court Reporter NONE) (slh, ) (Entered: 06/18/2004)
37 REPORT OF CONFERENCE OF COUNSEL AND ORDER &REVISED SCHEDULING ORDER− Discovery due by 12/31/2004. Motions due by 1/28/2005. Ready for Trial on 4/5/2005. Proposed Notice To Class Plan no later than 9/15/2004. Objections To Proposed Notice To Class Plan no later than 10/6/2004. By Judge DAVID M. COHEN. ORDER OF BIFURCATION OF LIABILITY AND DAMAGES IS VACATED ON 4/19/06 SEE PLEADING NO. 181 ISSUED BY JUDGE CARTER(mjl, ) Modified on 4/19/2006 to indicate the order on bifurcation is vacated(mjlt, ). (Entered: 06/21/2004)
38 MOTION For Clarification Of Report Of Scheduling Conference And Revised Scheduling Order Dated June 18, 2004 by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 7/15/2004. (mjl, ) (Entered: 06/24/2004)
39 NOTICE of Hearing per tele−call from Atty Thistle on Discovery Issue and on Motion 38 MOTION For Clarification Of Report Of Scheduling Conference And Revised Scheduling Order Dated June 18, 2004:Telephone Discovery &Motion Hearing set for 6/28/2004 03:30 PM before MAG. JUDGE DAVID M. COHEN; Atty Thistle to initiate call to Chambers. (slh, ) (Entered: 06/25/2004)
40 AMENDED REPORT OF SCHEDULING CONFERENCE AND REVISED SCHEDULING ORDER− Scheduling Order Deadlines Discovery due by 12/31/2004. Motions due by 1/28/2005. Ready for Trial on 4/5/2005. Proposed Notice Plan To Class(1) due by 9/15/2004. Any objections to Proposed Notice (2) due by 10/6/2004. By Judge DAVID M. COHEN. (mjl, ) Modified on 6/29/2004 to reflect the ready for trial date is 4/5/2005 and not 4/5/1954 as previously indicated. (mjl, ). (Entered: 06/29/2004)
41 REPORT OF HEARING AND ORDER re: Discovery Dispute By Judge DAVID M. COHEN. (mjl, ) (Entered: 06/29/2004)
42 ORDER re 38 MOTION For Clarification Of Report Of Scheduling Conference And Revised Scheduling Order Dated June 18, 2004 filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY "6/28/04− Telephone Conference held this date. For the Plaintiff: Sumner Lipman, Esq., Robert Stolt,Esq., and Dale Thistle, Esq.. For Defendants: Peter Marchesi, Esq., and John Wall, Esq.. After discussion and without objection motion granted and clarification made per Amended Report Of Scheduling Confernce And Revised Scheduling Order Of even date. "By Judge DAVID M. COHEN. (mjl, ) (Entered: 06/29/2004)
43 Minute Entry for proceedings held before Mag.Judge DAVID M. COHEN : Telephone Discovery Hearing held, Telephone Motion Hearing held re 38 MOTION For Clarification Of Report Of Scheduling Conference And Revised Scheduling Order Dated June 18, 2004 filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. (Court Reporter NONE) (slh, ) (Entered: 06/29/2004)

06/28/2004 06/28/2004 06/29/2004 06/29/2004 07/02/2004 07/09/2004 07/30/2004 09/15/2004
09/15/2004 09/15/2004 09/15/2004
09/15/2004 09/16/2004

Set Scheduling Order Deadlines − Pursuant To Amended Order Issued On 6/28/04, Ready For Trial Date is 4/5/05.(mjl, ) (Entered: 06/29/2004)
Reset Scheduling Order Deadlines − Ready For Trial Date 4/5/04docketed in error, the matter will be ready for trial for 4/5/05: Ready for Trial on 4/5/2005.(mjl, ) (Entered: 06/30/2004)
NOTICE of Docket Entry Modification regarding 40 AMENDED Report of Conference of Counsel and Order Modified on 6/29/2004 to reflect the ready for trial date is 4/5/2005 and not 4/5/1954 as previously indicated. (mjl, ). (mjl, ) (Entered: 06/29/2004)
44 MOTION to Extend Time To File Objections To The Revised Scheduling Order by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 7/20/2004. (mjl, ) (Entered: 06/30/2004)
45 ORDER granting 44 Motion to Extend Time By Judge DAVID M. COHEN. (mjl, ) (Entered: 07/02/2004)
46 OBJECTION to 40 AMENDED REPORT OF SCHEDULING CONFERENCE AND REVISED SCHEDULING ORDER, filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 7/26/2004. (mjl, ) (Entered: 07/09/2004)
47 ORDER reserving ruling 46 Objection To Amend The Amended Report Of Scheduling Order By Judge GENE CARTER. (mjl, ) (Entered: 07/30/2004)
48 ORIGINAL PAPER DOCUMENTS &EXHIBITS ARE ON FILE WITH THE CLERK'S OFFICE− MOTION for Approval of Notice to the Class by LAURIE TARDIFF.Responses due by 10/6/2004. (Attachments: # Exhibit A(1) # Exhibit B(2) Exhibit C(3))(STOLT, ROBERT) Modified on 9/16/2004 to add description of exhibits(mjl, ). Modified on 9/16/2004 to reflect document is on file in paper with the clerk's office(mjl, ). (Entered: 09/15/2004)
49 MOTION for Order in Aid of Identification of Class Members by LAURIE TARDIFF.Responses due by 10/6/2004. (STOLT, ROBERT) (Entered: 09/15/2004)
50 MEMORANDUM by LAURIE TARDIFF in support of 49 MOTION for Order in Aid of Identification of Class Members. (STOLT, ROBERT) (Entered: 09/15/2004)
51 **ORIGINAL PAPER DOCUMENTS &EXHIBITS ARE ON FILE WITH THE CLERK'S OFFICE**AFFIDAVIT of Robert J. Stolt filed by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 9/16/2004 To reflect original pleading along with exhibits are on file with the clerk's office (mjl, ). (Entered: 09/15/2004)
Reset Deadlines as to 48 MOTION for Approval of Notice to the Class Pursuant To The Amended Report Of Scheduling Conference And Revised Scheduling Order Issued On 6/29/04, The Objections To The Proposed Notice To The Class Is Due By 10/6/04.(mjl, ) (Entered: 09/16/2004)
52 MOTION for Leave to File Plaintiff's Motion For Order In Aid Of Identification Of Class Members In Excess Page Limit by LAURIE TARDIFF.Responses due by 10/7/2004. (mjl, ) Modified on 9/21/2004 to fix a typographical error (mjl, ). (Entered: 09/16/2004)

09/16/2004 09/16/2004 10/05/2004
10/06/2004 10/06/2004
10/13/2004 10/13/2004 10/14/2004 10/14/2004
10/14/2004 10/14/2004

53 MOTION for Order In Aid Of Identification of Class Members by LAURIE TARDIFF WITH INCORPORATED MEMO.Responses due by 10/7/2004. (mjl, ) (Entered: 09/16/2004)
80 AFFIDAVIT of Duane Degler re 53 MOTION for Order In Aid Of Identification of Class Members, 49 MOTION for Order in Aid of Identification of Class Members filed by LAURIE TARDIFF. (mjl, ) (Entered: 01/12/2005)
54 Unopposed MOTION to Extend Time UNTIL OCTOBER 13, 2004 TO FILE OBJECTION TO PLAINTIFF'S MOTION FOR APPROVAL OF NOTICE TO THE CLASS AND PLAINTIFF'S MOTION FOR ORDER IN AID OF IDENTIFICATION OF CLASS MEMBERS by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. (mnm, ) (Entered: 10/05/2004)
55 ORDER granting without objection 54 Motion to Extend Time Within Which To File Objections To Plaintiff's Motion For Approval Of Notice To The Class And Plaintiff's Motion For Order In Aid Of Identification Of Class Memembers By Judge GENE CARTER. (mjl, ) (Entered: 10/06/2004)
Reset Deadlines as to 48 MOTION for Approval of Notice to the Class, 49 MOTION for Order in Aid of Identification of Class Members, 53 MOTION for Order In Aid Of Identification of Class Members Pursuant To Judge Carter's Order Granting the Defendant's Unopposed Motion (Pleading No. 54)To Extend Time To File Response To Motions: Responses due by 10/13/2004.(mjl, ) (Entered: 10/07/2004)
56 RESPONSE to Motion re 48 MOTION for Approval of Notice to the Class filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Reply due by 10/25/2004. (mjl, ) (Entered: 10/14/2004)
57 MOTION to Extend Time To File Objection To Plaintiff's Motion For Order In Aid Of Identification Of Class Members Until October 14, 2004 by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 11/3/2004. (mjl, ) (Entered: 10/14/2004)
58 ORDER granting without objection 57 Motion to Extend Time No objection by the Plaintiff, the motion is granted.The defendants' are to file their objection to the Plaintiffs' Motion For Order In Aid Of Identification Of Class Members by October 14, 2004. For the Court, Michelle Levasseur, DEPUTY CLERK. (mjl, ) (Entered: 10/14/2004)
Reset Deadlines as to 49 MOTION for Order in Aid of Identification of Class Members, 53 MOTION for Order In Aid Of Identification of Class Members Pursuant To Order Granting The Defendants' Motion To Extend Time To File Objection To Plaintiff's Motion For Order in Aid of Identification of Class Members: Responses due by 10/14/2004.(mjl, ) (Entered: 10/14/2004)
59 MOTION for Leave to File Memorandum In Opposition To Plaintiff's Motion For Order In Aid Of Identification Of Class Members In Excess Page Limit by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 11/4/2004. (mjl, ) (Entered: 10/14/2004)
60 RESPONSE to Motion re 53 MOTION for Order In Aid Of Identification of Class Members, 49 MOTION for Order in Aid of Identification of Class Members filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Reply due by

10/14/2004 10/18/2004
10/19/2004
10/19/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/03/2004 11/08/2004 11/10/2004
11/10/2004

10/25/2004. (mjl, ) (Entered: 10/14/2004)
61 AFFIDAVIT of Peter T. Marchesi, Esq. re 60 Response to Motion, filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. (mjl, ) (Entered: 10/14/2004)
62 Unopposed MOTION to Extend Time UNTIL NOVEMBER 4, 2004 TO REPLY TO PLAINTIFF'S MOTION FOR APPROVAL OF NOTICE TO THE CLASS AND PLAINTIFF'S MOTION FOR ORDER IN AID OF IDENTIFICATION OF CLASS MEMBERS by LAURIE TARDIFF. (mnm, ) (Entered: 10/19/2004)
63 ORDER granting 62 Motion to Extend Time UNTIL NOVEMBER 4, 2004 TO REPLY TO PLAINTIFF'S MOTION FOR APPROVAL OF NOTICE TO THE CLASS AND PLAINTIFF'S MOTION FOR ORDER IN AID OF IDENTIFICATION OF CLASS MEMBERS. "Granted as prayed for" By Judge DAVID M. COHEN. (mnm, ) (Entered: 10/19/2004)
RESET Deadlines as to 48 MOTION for Approval of Notice to the Class, 49 MOTION for Order in Aid of Identification of Class Members − PER ORDER #63: Reply due by 11/4/2004.(mnm, ) (Entered: 10/19/2004)
64 MOTION for Leave to File Reply Memorandum By Plaintiffs In Support Of Motion For Order In Aid Of Indentification Of Class Members And For Approval Of Notice To The Class by LAURIE TARDIFF.Responses due by 11/24/2004. (mjl, ) (Entered: 11/04/2004)
65 REPLY to Response to Motion re 48 MOTION for Approval of Notice to the Class, 53 MOTION for Order In Aid Of Identification of Class Members, 49 MOTION for Order in Aid of Identification of Class Members filed by LAURIE TARDIFF. (mjl, ) (Entered: 11/04/2004)
66 AFFIDAVIT of Robert J. Stolt Dated November 1, 2004 re 65 Reply to Response to Motion, filed by LAURIE TARDIFF. (mjl, ) (Entered: 11/04/2004)
67 NOTICE of Appearance Pro Hac Vice of David M. Hoffman filed by SUMNER H. LIPMAN on behalf of LAURIE TARDIFF (mjl, ) (Entered: 11/04/2004)
68 NOTICE of Appearance Pro Hac Vice of Frank P. DiPrima filed by SUMNER H. LIPMAN on behalf of LAURIE TARDIFF (mjl, ) (Entered: 11/04/2004)
69 NOTICE of Hearing per tele−call w/Atty Lipman's Office: Telephone Conference set for 11/10/2004 10:00 AM before MAG. JUDGE DAVID M. COHEN re: Atty Lipman's recent letter. Atty Lipman to initiate conference call to Chambers.(slh, ) (Entered: 11/08/2004)
70 Minute Entry for proceedings held before Judge DAVID M. COHEN : Telephone Conference was held this date,Attorney Sumner H. Lipman, Dale T. Thistle for the Plaintiffs, and Peter T. Marchesi and John Wall for the Defendants. During the confernece the Court proposed a number of attorneys for the parties to agree upon for a mediator. Parties to notify the Court if they need further assistance in finding an agreed upon mediator. (Court Reporter None) (mjl, ) (Entered: 11/10/2004)
71 ORDER DENYING DEFENDANTS' OBJECTION TO AMENDED REPORT OF SCHEDULING CONFERENCE AND REVISED SCHEDULING ORDER 46 Objection By

11/26/2004 12/06/2004 12/14/2004 12/16/2004 12/20/2004
12/27/2004 01/12/2005 01/12/2005
02/01/2005 02/22/2005 02/23/2005

Judge GENE CARTER. (mjl, ) (Entered: 11/10/2004)
72 MOTION for Order (FOR CONFIDENTIALITY ORDER) by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY.Responses due by 12/17/2004. (mnw, ) (Entered: 11/26/2004)
73 RESPONSE in Opposition re 72 MOTION for Order (FOR CONFIDENTIALITY ORDER) filed by LAURIE TARDIFF.Reply due by 12/17/2004. (mjl, ) (Entered: 12/06/2004)
74 REPLY to Response to Motion re 72 MOTION for Order (FOR CONFIDENTIALITY ORDER) filed by DANIEL DAVEY, JANE DOE, JOHN DOE, KNOX COUNTY. (mjl, ) (Entered: 12/15/2004)
75 NOTICE of Hearing on Motion per tele−call w/Atty Marchesi's office Re: 72 MOTION for Order (FOR CONFIDENTIALITY ORDER):Telephone Motion Hearing set for 12/20/2004 03:00 PM before MAG. JUDGE DAVID M. COHEN. Atty Marchesi to initiate conference call.(slh, ) (Entered: 12/16/2004)
76 Minute Entry for proceedings held before Judge DAVID M. COHEN : Telephone Conference held.For the plaintiff: Sumner Lipman, Esq. and Robert Stolt, Esq. For the Defendant: Peter Marchesi, Esq. and John Wall, Esq. After discussion I ruled that the documents at issue are entitled to confidentiality protection pursuant to Fed. R. Civ.P. 26(c)(7) (Commercial information) and directed the defendants to submit a proposed order to the Court in connection with Local Rule 26(d). (Court Reporter None) (mjl, ) (Entered: 12/21/2004)
77 CONFIDENTIALITY ORDER By Judge DAVID M. COHEN. (mjl, ) (Entered: 12/27/2004)
78 ORDER granting 52 Motion for Leave to File, granting 59 Motion for Leave to File, granting 64 Motion for Leave to File "Motions are hereby GRANTED. So ORDERED." By Judge GENE CARTER. (mjl, ) (Entered: 01/12/2005)
79 MEMORANDUM OF DECISION AND ORDER DENYING THE RELIEF REQUESTED BY PLAINTIFF'S MOTION IN AID OF IDENTIFICATION OF CLASS MEMBERS 53 MOTION for Order In Aid Of Identification of Class Members filed by LAURIE TARDIFF − The following deadlines have been reset pursuant to this order: Discovery due by 3/14/2005. Motions due by 5/16/2005. By Judge GENE CARTER. (mjl, ) Modified on 1/24/2005 to fix typographical error (mjl, ). (Entered: 01/12/2005)
81 MOTION to Extend Time to April 29, 2005 to complete document review and to May 13, 2005 to notify the Court by LAURIE TARDIFF.Responses due by 2/22/2005. (LIPMAN, SUMNER) (Entered: 02/01/2005)
82 RESPONSE to Motion re 81 MOTION to Extend Time to April 29, 2005 to complete document review and to May 13, 2005 to notify the Court filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Reply due by 3/7/2005. (mo, ) (Entered: 02/22/2005)
83 NOTICE of Hearing on Motion per tele−call to counsel Re: 81 MOTION to Extend Time to April 29, 2005 to complete document review and to May 13, 2005 to notify the Court:

02/23/2005
02/23/2005 02/23/2005 03/17/2005 03/17/2005
03/23/2005 05/02/2005 05/09/2005 05/17/2005 05/19/2005 05/19/2005 05/27/2005 05/31/2005

Telephone Motion Hearing (and Discovery Hearing on dispute presented by Atty Stolt) set for 2/23/2005 01:00 PM before MAG. JUDGE DAVID M. COHEN; Pltf to initiate conference call to Chambers. (slh, ) (Entered: 02/23/2005)
84 Minute Entry for proceedings held before Mag.Judge DAVID M. COHEN : Telephone Discovery Hearing and Motion Hearing held re 81 MOTION to Extend Time to April 29, 2005 to complete document review and to May 13, 2005 to notify the Court filed by LAURIE TARDIFF. (Court Reporter NONE) (slh, ) (Entered: 02/23/2005)
85 REPORT OF HEARING AND ORDER RE: DISCOVERY DISPUTE − By Judge DAVID M. COHEN. (mnw, ) (Entered: 02/24/2005)
86 ORDER denying 81 Motion to Extend Time − "After discussion, motion denied without prejudice to its renewal when the current deadline is nearer at hand and if the plaintiffs preceive a need for more time." By Judge DAVID M. COHEN. (mnw, ) (Entered: 02/24/2005)
87 Unopposed MOTION to Amend Scheduling Order by LAURIE TARDIFF.Responses due by 4/7/2005. (mjl, ) (Entered: 03/17/2005)
88 NOTICE of Hearing on Motion per tele−call w/Atty Stolt's office Re: 87 Unopposed MOTION to Amend Scheduling Order: Telephone Motion Hearing set for 3/23/2005 03:00 PM before MAG. JUDGE MARGARET J. KRAVCHUK in Portland; Atty Stolt to initiate conference call to USMJ Cohen's Chambers. (slh, ) (Entered: 03/23/2005)
89 ORDER granting 87 Motion to Amend Scheduling Order Motions due by 6/15/2005. Discovery due by 4/8/2005. "Granted as prayed for." By Judge DAVID M. COHEN. (mjl, ) (Entered: 03/24/2005)
90 PLAINTIFF'S REPORT ON DEFICIENCES IN RECORD MAINTAINED BY DEFENDANT'S NECESSARY TO ACCURATELY IDENTIFY MEMBERS OF THE CLASS by LAURIE TARDIFF. (mjl, ) (Entered: 05/02/2005)
91 ORAL ORDER re 90 Plaintiff's Report On Deficiences In Record Maintained By Defendant's Necessary To Accurately Identify Members Of The Class.Defendant's Responses due by 5/19/2005. By Judge GENE CARTER. (mjl, ) (Entered: 05/09/2005)
92 MOTION to Extend Time To File A Response To Plaintiff's Request On Deficiencies by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 6/7/2005. (mjl, ) (Entered: 05/17/2005)
93 ORDER granting 92 Motion to Extend Time By Judge GENE CARTER. (mjl, ) (Entered: 05/19/2005)
Reset Deadlines Pursuant To Judge Carter's Order Granting Time To File Response To Plaintiff's Report Of Deficiences: Response due by 5/27/2005.(mjl, ) (Entered: 05/19/2005)
94 MOTION to Extend Time Within Which To File Response To Plaintiff's Report On Deficiencies by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 6/17/2005. (mjl, ) (Entered: 05/27/2005)
95 ORAL ORDER by Judge Carter − The Plaintiffs are to file within 10 straight days a written objection to 94 Motion to

06/10/2005 06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/17/2005
06/21/2005 06/22/2005
06/27/2005 06/30/2005 07/01/2005 07/01/2005

Extend Time To File Response To Plaintiff's Report On Deficiencies filed by DANIEL DAVEY,, JANE DOE, JOHN DOE,KNOX COUNTY − Reset Deadlines as to 94 Responses due by 6/10/2005. (mjl, ) (Entered: 05/31/2005)
96 RESPONSE in Opposition re 94 MOTION to Extend Time Within Which To File Response To Plaintiff's Report On Deficiencies filed by LAURIE TARDIFF.Reply due by 6/21/2005. (ckb, ) (Entered: 06/10/2005)
97 MOTION for Leave to File Motion In Excess of Twenty Pages by LAURIE TARDIFF with Incorporated Memorandum.Responses due by 7/6/2005. (ckb, ) (Entered: 06/16/2005)
98 MOTION for Leave to File to File Jail Intake Release Data Under Seal by LAURIE TARDIFF.Responses due by 7/6/2005. (ckb, ) (Entered: 06/16/2005)
99 MOTION for Summary Judgment on the issue of liability against all Defendants by LAURIE TARDIFF with Incorporated Memorandum of Law.Responses due by 7/6/2005. (ckb, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/16/2005)
100 STATEMENT OF UNCONTROVERTED FACT by LAURIE TARDIFF. (ckb, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/16/2005)
101 Defendants' Response To Plaintiff's Report of Deficiences In Record Maintained By Defendant's Necessary To Accurately Identify Members Of The Class − re: Pleading No. 90 by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (mjl, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/20/2005)
102 REPLY to Response to Motion re 94 MOTION to Extend Time Within Which To File Response To Plaintiff's Report On Deficiencies filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/22/2005)
103 OBJECTION TO AUTHENTICITY OF DOCUMENTS IDENTIFIED IN PLAINTIFFS'LOCAL RULE 44 RECORDS DISCLOSURE filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 7/11/2005. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/24/2005)
104 REPLY MEMORANDUM TO DEFENDANT'S RESPONSE 101 TO PLAINTIFFS' REPORT ON DEFICIENCIES 90 (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/29/2005)
105 MOTION to Extend Time To File Response To Motion For Summary Judgment by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 7/21/2005. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 06/30/2005)
106 ORDER granting in part and denying in part 105 Motion to Extend Time: Defendant's response to the Plaintiff's Motion for Summary Judgment is due 7/11/05 By Judge GENE CARTER. (ckb, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 07/01/2005)
Reset Deadlines as to 99 MOTION for Summary Judgment on the issue of liability against all Defendants Pursuant To Judge

07/01/2005 07/07/2005 07/11/2005 07/11/2005
07/11/2005 07/11/2005 07/11/2005
07/22/2005 07/22/2005 07/22/2005 07/26/2005 07/26/2005

Carter's Order Granting In Part The Defendant's Motion To Extend Time To File Response To Motion For Summary Judgment: Responses due by 7/11/2005.(mjlt, ) (Entered: 07/05/2005)
107 RESPONSE in Opposition re 105 MOTION to Extend Time To File Response To Motion For Summary Judgment filed by LAURIE TARDIFF. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/05/2005)
108 NOTICE of Hearing: Conference of Counsel about Pleading No. 90 re: Plaintiff's Of Deficiences In Record Maintained By Defendants' Necessary To Identify Members of The Class set for 7/25/2005 03:00 PM before JUDGE GENE CARTER. (mjlt, ) (Entered: 07/07/2005)
109 MOTION for Leave to File Response To Motion For Summary Judgment In Excess Page Limit by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 8/1/2005. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/11/2005)
110 RESPONSE to Motion re 99 MOTION for Summary Judgment on the issue of liability against all Defendants filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Reply due by 7/22/2005. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/11/2005)
111 MOTION to Strike Affidavit Of Robert Pedreira by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE.Responses due by 8/1/2005. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/11/2005)
112 RESPONSE to Statement of Fact with Statement of Additional Facts filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 07/11/2005)
113 RESPONSE to 103 OBJECTION TO DEFENDANTS' OBJECTION TO AUTHENTICITY OF DOCUMENTS IDENTIFIED IN PLAINTIFF'S LOCAL RULE 44 DISCLOSURE filed by LAURIE TARDIFF. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/13/2005)
114 REPLY to Response to Motion re 99 MOTION for Summary Judgment on the issue of liability against all Defendants filed by LAURIE TARDIFF. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/25/2005)
115 REPLY TO ADDITIONAL Statement of Fact filed by LAURIE TARDIFF. (mjlt, ) Additional attachment(s) added on 8/12/2005 (mjlt, ). (Entered: 07/25/2005)
116 SUPPLEMENTAL AFFIDAVIT of Michelle Ward re 115 Reply to Additional Statement of Fact (Exhibit No. 27) filed by LAURIE TARDIFF. (mjlt, ) Additional attachment(s) added on 8/11/2005 (mjlt, ). (Entered: 07/25/2005)
117 DEPOSITION filed by LAURIE TARDIFF of John Hinkley taken on June 11, 2003. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 07/27/2005)
118 DEPOSITION along with Deposition Exhibits 1−8 filed by LAURIE TARDIFF of Richard J. Robbins taken on June 19, 2003. (mjlt, ) Additional attachment(s) added on 8/15/2005

07/29/2005 08/01/2005 08/01/2005 08/03/2005 08/10/2005 08/10/2005 08/10/2005 08/11/2005
08/11/2005 08/15/2005

(mjlt, ). (Entered: 07/27/2005)
121 RESPONSE to Motion re 111 MOTION to Strike Affidavit Of Robert Pedreira filed by LAURIE TARDIFF.Reply due by 8/9/2005. (mjlt, ) Additional attachment(s) added on 8/15/2005 (mjlt, ). (Entered: 08/01/2005)
119 ORDER granting without objection 94 Motion to Extend Time − By Judge GENE CARTER. (mjlt, ) (Entered: 08/01/2005)
120 ORDER granting without objection 98 Motion for Leave to File Under Seal By Judge GENE CARTER. (mjlt, ) (Entered: 08/01/2005)
122 NOTICE of Hearing: Conference of Counsel to discuss Pleading No. 90 re: Plaintiff's Report of Deficiences In The Record Maintained By Defendants' Necessary To Identify Members of The Class set for 8/10/2005 01:00 PM in Judge Carter's Chambers before JUDGE GENE CARTER. (mjlt, ) (Entered: 08/03/2005)
123 Minute Entry for proceedings held before Judge GENE CARTER : Conference of Counsel held. Transcript of the conference of counsel is to be filed. (Court Reporter Dennis Ford) (mjlt, ) (Entered: 08/10/2005)
124 Oral ORDER denying 90 Plaintiff's Report Of Deficiencies In Records Maintained By Defendant's Necessary To Accurately Identify Members Of The Class filed by LAURIE TARDIFF. The reasons for the order are stated on the record during the confernece of counsel held this date. By Judge GENE CARTER. (mjlt, ) (Entered: 08/10/2005)
125 ORAL ORDER − No Action Necessary on 103 Objection by Defendant's To Authenticity Of Documents Identified In Plaintiff's Local Rule 44 Records Disclosures− The reasons for the order are stated on the record during the conference of counsel held this date. By Judge GENE CARTER. (mjlt, ) (Entered: 08/10/2005)
126 TRANSCRIPT of Proceedings: Chambers Conference held on 8/10/05 before Judge Gene Carter, Senior Judge. Court Reporter: Dennis R. Ford. Phone Number: 2078318056. IMPORTANT NOTICE −− REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Redact with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal information is located on the court website at www.med.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal data identifiers is not necessary and the transcript will be made available on the web.
(Ford, Dennis) (Entered: 08/11/2005)
Set Deadlines/Hearings Regarding Transcript Filed on 8/11/05 : Notice of Redaction (1) due by 8/22/2005.(mjlt, ) (Entered: 08/11/2005)
127 STATUS REPORT by LAURIE TARDIFF. (Attachments: # 1 Exhibit Letter to P. Marchesi, 8/15/05# 2 Exhibit Inmate Number List# 3 Exhibit E−Mail# 4 Exhibit Ltr. from.P.Marchesi)(STOLT, ROBERT) (Entered: 08/15/2005)

08/15/2005
08/16/2005
08/16/2005 08/16/2005 08/16/2005 08/18/2005 08/19/2005 08/22/2005 08/26/2005

NOTICE of Docket Entry Modification regarding 107 Response in Opposition to Motion, 111 MOTION to Strike Affidavit Of Robert Pedreira, 112 Response to Statement of Fact with Statement of Additional Facts, 115 Reply to Additional Statement of Fact, 121 Response to Motion, 116 Affidavit, 113 Response to Objection, 99 MOTION for Summary Judgment on the issue of liability against all Defendants, 100 Statement of Fact, 103 OBJECTION, 104 Remark, 105 MOTION to Extend Time To File Response To Motion For Summary Judgment, 8 Answer to Amended Complaint, 106 Order on Motion to Extend Time, 109 MOTION for Leave to File Response To Motion For Summary Judgment In Excess Page Limit, 2 Amended Complaint, 110 Response to Motion,, 117 Deposition, 101 Brief,, 114 Reply to Response to Motion, 118 Deposition, 102 Reply to Response to Motion: Pursuant to Judge Carter's Oral Order on August 10, 2005 converting the case to electronic case filing, the list documents were scanned and attached to the docket entries.(mjlt, ) (Entered: 08/15/2005)
NOTICE of Docket Entry Modification regarding 127 Status Report: Exhibit 2 "Inmate Number List" to Attorney Stolt's Status Report has been modified by the Clerk's Office to prevent remote/electronic access to the document because the document should have been filed under seal. As of the time of this filing remote access to the document will not be permitted. Counsel are reminded that documents filed under seal must be filed in paper in accordance with this Court's Administrative Procedures Re: Electronic Case Filing and Service. (ckb, ) Modified on 8/16/2005 (ckb, )to correct typographical error. (Entered: 08/16/2005)
128 STATUS REPORT by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) (Entered: 08/16/2005)
129 PROPOSED NOTICE TO CLASS MEMBERS filed by Plaintiff (Attachments: # 1 Exhibit B# 2 Exhibit C) (mjlt, ) (Entered: 08/16/2005)
Set Deadlines Regarding PROPOSED NOTICE TO CLASS MEMBERS filed on 8/16/05 Pursuant To Conference Of Counsel held on 8/10/05− Defendant has 3 days from the filing of the proposed notice to file any objections.: Defendant's objection to Proposed Notice to Class Members is due by 8/19/2005.(mjlt, ) (Entered: 08/16/2005)
130 AFFIDAVIT of Cheryl Daniello filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) (Entered: 08/18/2005)
131 OBJECTION to 129 Remark AND PROPOSED REVISIONS TO PROPOSED CLASS NOTICE DOCUMENTS filed by LAURIE TARDIFF, KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 08/19/2005)
132 REPLY to Response to Motion re 131 OBJECTION to 129 Remark AND PROPOSED REVISIONS TO PROPOSED CLASS NOTICE DOCUMENTS filed by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 08/22/2005)
133 MOTION to Extend Time to Respond to Plaintiff's Rule 44 Records Disclosure by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE WITH INCORPORATED MEMO.Responses due by 9/16/2005. (MARCHESI, PETER) (Entered: 08/26/2005)

08/29/2005 09/01/2005 09/02/2005 09/06/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/03/2005
11/03/2005 12/30/2005 01/04/2006 01/23/2006 01/31/2006
02/09/2006

134 RESPONSE to Motion re 133 MOTION to Extend Time to Respond to Plaintiff's Rule 44 Records Disclosure filed by LAURIE TARDIFF.Reply due by 9/9/2005. (STOLT, ROBERT) (Entered: 08/29/2005)
135 OBJECTION to 134 Response to Motion filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) (Entered: 09/01/2005)
136 REPLY to Response to Motion re 133 MOTION to Extend Time to Respond to Plaintiff's Rule 44 Records Disclosure filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) (Entered: 09/02/2005)
137 ORDER granting 133 Motion to Extend Time By Judge GENE CARTER. (mjlt, ) (Entered: 09/06/2005)
138 ORDER granting 97 . The Motion for Leave to File is hereby GRANTED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 11/02/2005)
139 ORDER granting 109 . The Motion for Leave to File is hereby GRANTED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 11/02/2005)
140 ORDER granting 111 . The Motion to Strike is hereby GRANTED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 11/02/2005)
141 ORDER granting in part and denying in part 99 Motion for Partial Summary Judgment By Judge GENE CARTER. (mjlt, ) (Entered: 11/02/2005)
142 ORDER APPROVING NOTICE TO CLASS re: 48 Motion for Approval Of Notice To The Class &131 Objection to Proposed Revisions To Proposed Class Notice Documents By Judge GENE CARTER. (mjlt, ) (Entered: 11/02/2005)
143 NOTICE− Counsel please be advised Judge Carter will not be publishing a Civil Trial List for the months of January, February, and March of 2006. This case will be the first case listed on Judge Carter's April 2006 Civil Trial List. If counsel should have any questions, please do not hesitate to call the Clerk's Office. (mjlt, ) (Entered: 11/03/2005)
144 ORDER dismissing 135 Objection By Judge GENE CARTER. (mjlt, ) (Entered: 11/03/2005)
145 MOTION for Conference of Counsel by LAURIE TARDIFF.Responses due by 1/20/2006. (STOLT, ROBERT) (Entered: 12/30/2005)
146 ORDER granting 145 Motion for Conference of Counsel By Mag.Judge DAVID M. COHEN. Clerk to schedule a telephone conference. (slh, ) (Entered: 01/05/2006)
147 NOTICE of Hearing: Telephone Conference set for 2/8/2006 03:00 PM before MAG. JUDGE DAVID M. COHEN to discuss trial prep issues per letter of 12/30/05 from Atty Stolt. (slh, ) (Entered: 01/23/2006)
148 NOTICE of Hearing per tele−call w/Atty Stolt's office: Telephone Conference to discuss trial prep issues per letter of 12/30/05 from Atty Stolt reset for 2/22/2006 03:00 PM before MAG. JUDGE DAVID M. COHEN. Pltf to initiate conference call to Chambers.(slh, ) (Entered: 01/31/2006)
149 MOTION for Leave to File Memorandum of Law in Support of Motion for Reconsideration in Excess of Page Limits by

02/09/2006
02/13/2006 02/13/2006 02/15/2006
03/02/2006 03/07/2006 03/10/2006 03/13/2006
03/13/2006
03/14/2006 03/14/2006 03/15/2006 03/29/2006

KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE WITH INCORPORATED MEMO.Responses due by 3/2/2006. (MARCHESI, PETER) (Entered: 02/09/2006)
150 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE WITH INCORPORATED MEMORANDUM OF LAW.Responses due by 3/2/2006. (MARCHESI, PETER) (Entered: 02/09/2006)
151 NOTICE TO COUNSEL− Please be advised this case will not be placed on Judge Carter's April Trial List, due to the pending Motion For Reconsideration. This case will be placed on Judge Carter's May Civil Trial List. (mjlt, ) (Entered: 02/13/2006)
Set Deadlines: Ready for Trial on 5/1/2006.(mjlt, ) (Entered: 02/13/2006)
152 NOTICE of Hearing: Telephone Conference to discuss trial preparation issues per letter of 12/30/05 from Atty Stolt reset for 2/27/2006 03:00 PM before MAG. JUDGE DAVID M. COHEN per telephonic request of Atty Marchesi; Plaintiff to initiate call to Chambers. (slh, ) (Entered: 02/15/2006)
153 RESPONSE in Opposition re 150 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment filed by LAURIE TARDIFF.Reply due by 3/13/2006. (STOLT, ROBERT) (Entered: 03/02/2006)
154 ORDER granting 149 Motion for Leave to File By Judge GENE CARTER. (mjlt, ) (Entered: 03/07/2006)
155 TRIAL LIST:. On Trial List for 5/1/2006. Final Pretrial Conference set for 4/14/2006 09:00 AM before MAG. JUDGE DAVID M. COHEN. Final Pretrial Memo due by 4/6/2006.(mjlt, ) (Entered: 03/10/2006)
156 MOTION for Leave to File Reply Memorandum in Excess of Page Limits by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE WITH INCORPORATED MEMO.Responses due by 4/3/2006. (MARCHESI, PETER) (Entered: 03/13/2006)
157 REPLY to Response to Motion re 150 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment WITH INCORPORATED MEMOANDUM filed by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) (Entered: 03/13/2006)
158 NOTICE of Hearing: Final Pretrial Conference reset for 4/13/2006 02:00 PM before MAG. JUDGE DAVID M. COHEN. Final Pretrial Memo due by 4/6/2006. (slh, ) (Entered: 03/14/2006)
159 MOTION for Conference of Counsel by LAURIE TARDIFF.Responses due by 4/4/2006. (STOLT, ROBERT) (Entered: 03/14/2006)
160 ORDER reserving ruling 159 Motion for Conference of Counsel − Ruling is hereby RESERVED until the Court has ruled on the pending motion for reconsideration. By Judge GENE CARTER. (mjlt, ) (Entered: 03/15/2006)
161 MOTION Motion to Extend Class Period with Incorporated Memorandum of Law by LAURIE TARDIFF.Responses due by 4/19/2006. (Attachments: # 1 Affidavit Affidavit of Jennifer Collins)(THISTLE, DALE) (Entered: 03/29/2006)

03/31/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/06/2006
04/06/2006 04/06/2006 04/07/2006
04/07/2006 04/12/2006 04/12/2006 04/12/2006 04/12/2006

162 RESPONSE to Motion re 156 MOTION for Leave to File Reply Memorandum in Excess of Page Limits filed by LAURIE TARDIFF.Reply due by 4/11/2006. (THISTLE, DALE) (Entered: 03/31/2006)
163 RESPONSE to Motion re 159 MOTION for Conference of Counsel filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 4/17/2006. (MARCHESI, PETER) (Entered: 04/04/2006)
164 ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION re: denying 150 Motion for Reconsideration By Judge GENE CARTER. (mjlt, ) (Entered: 04/04/2006)
165 ORDER denying 161 Motion to Extend Class Period By Judge GENE CARTER. (mjlt, ) (Entered: 04/04/2006)
166 ORDER Final Pretrial Conference set for 4/13/2006 02:00 PM before JUDGE GENE CARTER. By Judge GENE CARTER. (mjlt, ) (Entered: 04/04/2006)
167 ORDER granting 156 Motion for Leave to File By Judge GENE CARTER. (mjlt, ) (Entered: 04/04/2006)
168 ORDER granting 159 Motion for Conference of Counsel − Counsel should refer to pleading no. 166 By Judge GENE CARTER. (mjlt, ) (Entered: 04/04/2006)
169 FINAL PRETRIAL MEMORANDUM by KNOX COUNTY, DANIEL DAVEY, JANE DOE, JOHN DOE. (MARCHESI, PETER) Modified on 4/7/2006 to reflect this is final pretrial memorandum and not a trial brief (mjlt, ). (Entered: 04/06/2006)
170 FINAL PRETRIAL MEMORANDUM by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 04/06/2006)
171 MOTION Participate in Final Pretrial Conference by Telephone by LAURIE TARDIFF.Responses due by 4/27/2006. (STOLT, ROBERT) (Entered: 04/06/2006)
172 Supplemental Written Notice of Class Members by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 4/20/2006 to remove the word Motion and remove the response deadline contained within the docket text. This docket entry should not have been filed as a motion. (mjlt, ). (Entered: 04/07/2006)
173 ORDER denying 171 Motion for Participate in Final Pretrial Conference By Judge GENE CARTER. (mjlt, ) (Entered: 04/07/2006)
174 OBJECTION to Plaintiff's List of Class Members filed by KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibit Exhibits A −L)(MARCHESI, PETER) (Entered: 04/12/2006)
175 TRIAL BRIEF (Statement of Issues for Trial) by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 04/12/2006)
176 NOTICE of Appearance by GEORGE T. DILWORTH on behalf of DANIEL DAVEY (DILWORTH, GEORGE) (Entered: 04/12/2006)
177 MOTION to Continue by LAURIE TARDIFF.Responses due by 5/3/2006. (STOLT, ROBERT) (Entered: 04/12/2006)

04/12/2006 04/12/2006 04/13/2006 04/19/2006
04/19/2006 04/19/2006 04/20/2006
04/27/2006
04/28/2006
04/28/2006 05/01/2006 05/05/2006
05/08/2006

178 FINAL PRETRIAL MEMORANDUM by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 04/12/2006)
179 TRIAL BRIEF (Statement of Issues for Trial) by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 04/12/2006)
180 Minute Entry for proceedings held before Judge GENE CARTER : Final Pretrial Conference held. Report of Final Pretrial Order to issue. (Court Reporter Pauline Terry) (mjlt, ) (Entered: 04/13/2006)
181 REPORT OF FINAL PRETRIAL CONFERENCE AND ORDER Estimated length of trial 10−15 days Jury Selection set for 9/11/2006 09:00AM before JUDGE GENE CARTER.Trial Brief due by 8/21/2006. By Judge GENE CARTER. (Attachments: # 1 Exhibit A)(mjlt, ) (Entered: 04/19/2006)
Reset Scheduling Order Deadlines − Pursuant to Final Pretrial Conference and Order dated April 19, 2006: Discovery due by 7/30/2006.(mjlt, ) (Entered: 04/19/2006)
Reset Deadlines : Ready for Trial on 9/11/2006.(mjlt, ) (Entered: 04/24/2006)
182 TRANSCRIPT of Proceedings Final pretrial conference held on April13, 2006 before Judge Gene Carter. Court Reporter: P. Terry. For a bound copy of this transcript, contact P. Terry at 207−775−4331.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(TERRY, PAULINE) (Entered: 04/20/2006)
183 MEMORANDUM by KNOX COUNTY, DANIEL DAVEY in support of 174 OBJECTION to Plaintiff's List of Class Members WRITTEN STATEMENT OF BASIS AS TO WHY CLASS MEMBERS LISTED IN EXHIBITS A, B, H, AND J OF DEFENDANTS' OBJECTION SHOULD BE REMOVED FROM THE CLASS. (MARCHESI, PETER) (Entered: 04/27/2006)
184 MOTION to Extend Time Within Which to File Written Statements of the Defendants' Objection to Specific Class Members and Statement of All Bases of Objection to Class Membership by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 5/19/2006. (MARCHESI, PETER) (Entered: 04/28/2006)
185 OBJECTION to 181 Report of Final Pretrial Conference and Order filed by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 04/28/2006)
186 OBJECTION to 181 Report of Final Pretrial Conference and Order filed by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 05/01/2006)
187 ORDER RESOLVING OBJECTIONS TO REPORT OF FINAL PRETRIAL CONFERENCE AND ORDER re: 185 Objection &re: 186 Objection By Judge GENE CARTER. (Attachments: # 1 Report of Final Pretrial Conference And Order# 2 Exhibt A− Order Approving Notice To Class) (mjlt, ) (Entered: 05/05/2006)
188 RESPONSE in Opposition re 184 MOTION to Extend Time Within Which to File Written Statements of the Defendants' Objection to Specific Class Members and Statement of All

05/10/2006 05/11/2006 05/11/2006
05/12/2006 05/15/2006 05/15/2006 05/16/2006 05/16/2006
05/17/2006

Bases of Objection to Class Membership filed by LAURIE TARDIFF.Reply due by 5/19/2006. (STOLT, ROBERT) (Entered: 05/08/2006)
189 Letter MOTION for Conference of Counsel re 187 Order on Objection,,, by LAURIE TARDIFF.Responses due by 5/31/2006. (Attachments: # 1 Exhibit Marchesi Letter of 5/9/06)(THISTLE, DALE) (Entered: 05/10/2006)
190 ORDER STAYING PARAGRAPH 2.D OF THE AMENDED REPORT OF FINAL PRETRIAL CONFERENCE AND ORDER By Judge GENE CARTER. (mjlt, ) (Entered: 05/11/2006)
191 ORDER DENYING MOTION FOR ENLARGEMENT OF TIME WITHIN WHICH TO FILE WRITTEN STATEMENTS OF THE DEFENDANT'S OBJECTION TO SPECIFIC CLASS MEMBERS AND STATEMENT OF ALL BASES OF OBJECTIONS TO CLASS MEMBERSHIP WITH INCORPORATED MEMORANDUM OF LAW re: 184 Motion to Extend Time By Judge GENE CARTER. (mjlt, ) (Entered: 05/11/2006)
192 NOTICE of Hearing: Conference of Counsel set for 5/16/2006 02:00 PM in Judge Carter's Chambers in PORTLAND before JUDGE GENE CARTER. All counsel must be present for the conference.(mjlt, ) (Entered: 05/12/2006)
193 ** DUPLICATE FILING SEE− PLEADING NO. 194**MEMORANDUM by KNOX COUNTY in support of 191 Order on Motion to Extend Time, (Statement of Bases for Objections). (MARCHESI, PETER) Modified on 5/16/2006 to reflect this is a duplicate filing(mjlt, ). (Entered: 05/15/2006)
194 DEFENDANTS' STATEMENT OF ALL BASES OF OBJECTIONS TO INDIVIDUALS LISTED ON PLAINTIFF'S CLASS MEMBERSHIP LIST by KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibits 1−43 Are On File In Paper With The Clerk's Office)(mjlt, ) (Entered: 05/15/2006)
195 Minute Entry for proceedings held before Judge GENE CARTER.Conference of Counsel held re: Thistle Letter 189 . Matter taken under advisement, written decision to issue. (Court Reporter PAULINE TERRY) (mnw, ) (Entered: 05/16/2006)
196 ORDER PRESCRIBING THE PERFORMANCE OF FURTHER DISCOVERY BY DEFENDANTS OF THOSE CLASS MEMBERS PLAINTIFF DOES NOT DESIGNATE TO CALL AS WITNESSES AT TRIAL − Set Deadlines: Specific Document Deadline (1) (Defense counsel to add to its July 15, 2006 Witness List class members interviewed pursuant to this Order after July 15, 2006 who Defense counsel intends to call as witnesses at trial) due by 9/4/2006. By Judge GENE CARTER. (mnw, ) (Entered: 05/16/2006)
197 TRANSCRIPT of Proceedings Conference held on 5/16/06 before Judge Gene Carter. Court Reporter: P. Terry. For a bound copy of this transcript, contact P. Terry at 207−775−4331.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(TERRY, PAULINE) (Entered: 05/17/2006)

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198 Witness List by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 05/25/2006)
199 NOTICE/CORRESPONDENCE Re: Defendants' Proposed Plan for Completing Discovery of Absent Class Members Who Will Not Be Called by Plaintiff as Witnesses at Trial by KNOX COUNTY, DANIEL DAVEY (MARCHESI, PETER) (Entered: 05/25/2006)
200 OBJECTION to 199 Notice (Other)/Corresondence filed by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 05/26/2006)
201 ORDER re 199 Notice (Other)/Corresondence filed by DANIEL DAVEY,, KNOX COUNTY− "After full review of the written submission on the defendants' motion it is hereby denied." By Judge GENE CARTER. (mjlt, ) (Entered: 05/30/2006)
202 ORDER sustaining 200 Objection By Judge GENE CARTER. (mjlt, ) (Entered: 05/30/2006)
203 ***STRICKEN PER ORDER OF JUDGE CARTER DATED 9/18/06***Witness List by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 9/18/2006 to Strike this docket entry(mjlt, ). (Entered: 05/30/2006)
204 Witness List by LAURIE TARDIFF Supplemental. (STOLT, ROBERT) (Entered: 06/02/2006)
205 MOTION for Reconsideration re 201 Order on Defendants' Objection to Proposed Discovery of Class Members by KNOX COUNTY, DANIEL DAVEY With Incorporated Memo.Responses due by 6/26/2006. (MARCHESI, PETER) (Entered: 06/05/2006)
206 RESPONSE to Motion re 205 MOTION for Reconsideration re 201 Order on Defendants' Objection to Proposed Discovery of Class Members filed by LAURIE TARDIFF.Reply due by 6/19/2006. (STOLT, ROBERT) (Entered: 06/06/2006)
207 REPLY to Response to Motion re 205 MOTION for Reconsideration re 201 Order on Defendants' Objection to Proposed Discovery of Class Members filed by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 06/07/2006)
208 NOTICE/CORRESPONDENCE Re: REQUEST FOR CONFERENCE by all defendants (MARCHESI, PETER) (Entered: 06/07/2006)
209 NOTICE of Hearing: Conference of Counsel set for 6/12/2006 10:30 AM in Judge Carter's Chambers before JUDGE GENE CARTER. (mjlt, ) (Entered: 06/07/2006)
210 NOTICE/CORRESPONDENCE Re: PLAINTIFF'S WITNESS LIST by KNOX COUNTY, DANIEL DAVEY (MARCHESI, PETER) (Entered: 06/09/2006)
211 NOTICE/CORRESPONDENCE Re: Conference by LAURIE TARDIFF (STOLT, ROBERT) (Entered: 06/09/2006)
212 Minute Entry for proceedings held before Judge GENE CARTER : Conference of Counsel held. Report to follow (Court Reporter Pauline Terry) (mjlt, ) (Entered: 06/12/2006)
213 ORDER denying 205 Motion for Reconsideration By Judge GENE CARTER. (mjlt, ) (Entered: 06/12/2006)

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214 ORDER, Set Deadlines: Plaintiffs' Witness List (1) due by 6/16/2006. Defendants' Witness List (2) due by 7/17/2006. By Judge GENE CARTER. (mjlt, ) (Entered: 06/12/2006)
215 TRANSCRIPT of Proceedings Conference held on June 12, 2006 before Judge Gene Carter. Court Reporter: P. Terry. For a bound copy of this transcript, contact P. Terry at 207−775−4331.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(TERRY, PAULINE) (Entered: 06/13/2006)
216 MOTION for Leave to File to Name Thirty−Three (33) Witnesses for Trial by LAURIE TARDIFF.Responses due by 7/7/2006. (STOLT, ROBERT) (Entered: 06/16/2006)
217 AMENDED Witness List by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 6/19/2006 to add the word "amended" (mjlt, ). (Entered: 06/16/2006)
218 RESPONSE to Motion re 216 MOTION for Leave to File to Name Thirty−Three (33) Witnesses for Trial filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 7/3/2006. (MARCHESI, PETER) (Entered: 06/20/2006)
219 NOTICE of Appearance by CASSANDRA S. SHAFFER on behalf of KNOX COUNTY, DANIEL DAVEY (SHAFFER, CASSANDRA) (Entered: 06/20/2006)
220 ORDER granting 216 Motion for Leave to File − There being no objection, thereto and Defendant's having consented thereto, it is hereby ORDERED that the within motion be, and it is hereby GRANTED and that each side herein be authorized to list thirty−three (33) witnesses for trial. By Judge GENE CARTER. (mjlt, ) (Entered: 06/22/2006)
221 MOTION for Leave to File Statement of Bases of All Objections to Class Membership by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 7/19/2006. (MARCHESI, PETER) (Entered: 06/28/2006)
222 MOTION to Compel by LAURIE TARDIFF.Responses due by 7/20/2006. (STOLT, ROBERT) (Entered: 06/29/2006)
223 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. A. Plfts. Mot. Def.Sup. (STOLT, ROBERT) Modified on 6/30/2006 to reflect filing is stricken (mjlt, ). (Entered: 06/29/2006)
224 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. B. Plfts. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
225 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: ex.c Plfts. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)

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226 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Pltfs. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken(mjlt, ). (Entered: 06/29/2006)
227 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Plts. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
228 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Pltfs. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
229 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Pltfs.Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken(mjlt, ). (Entered: 06/29/2006)
230 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex.C. Plfts.Def. Mot. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken(mjlt, ). (Entered: 06/29/2006)
231 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex.C. Plfts.Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken(mjlt, ). (Entered: 06/29/2006)
232 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel.. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
233 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Plfts. Mot. Det. Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
234 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Pltf. Mot. Det Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken (mjlt, ). (Entered: 06/29/2006)
235 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. C. Plfts. Mot. Det Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect

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document is stricken(mjlt, ). (Entered: 06/29/2006)
236 STRICKEN PER ORDER OF JUDGE CARTER ON 6/30/06 (SEE PLEADING NO. 237)−ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 222 Motion to Compel. Main Document: Ex. D. Plfts. Mot. Det.Suff. (STOLT, ROBERT) Modified on 6/30/2006 to reflect document is stricken(mjlt, ). (Entered: 06/29/2006)
237 ORDER ON 227 Additional Attachments filed by LAURIE TARDIFF, 225 Additional Attachments filed by LAURIE TARDIFF, 224 Additional Attachments filed by LAURIE TARDIFF, 229 Additional Attachments filed by LAURIE TARDIFF, 226 Additional Attachments filed by LAURIE TARDIFF, 236 Additional Attachments filed by LAURIE TARDIFF, 233 Additional Attachments filed by LAURIE TARDIFF, 223 Additional Attachments filed by LAURIE TARDIFF, 234 Additional Attachments filed by LAURIE TARDIFF, 232 Additional Attachments filed by LAURIE TARDIFF, 228 Additional Attachments filed by LAURIE TARDIFF, 235 Additional Attachments filed by LAURIE TARDIFF, 230 Additional Attachments filed by LAURIE TARDIFF, 231 Additional Attachments filed by LAURIE TARDIFF. " THE ATTACHMENTS IN SUPPORT OF THE PLAINTIFFS' MOTION TO COMPEL ARE STRICKEN AS DOCKETED IN ERROR. THESE DOCUMENTS WILL BE ADRESSED AS NECESSARY AS A DISCOVERY MATTER OR AT TRIAL. SO ORDERED." By Judge GENE CARTER. (mjlt, ) (Entered: 06/30/2006)
238 ORAL ORDER EXPEDITING THE PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR LEAVE TO FILE− Reset Deadlines as to 221 MOTION for Leave to File Statement of Bases of All Objections to Class Membership. Responses due by 7/5/2006. By Judge GENE CARTER. (mjlt, ) (Entered: 06/30/2006)
239 RESPONSE to 221 MOTION for Leave to File Statement of Bases of All Objections to Class Membership filed by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 7/6/2006 to reflect this document is a response to motion for leave to file and not an objection to a document other than a motion as previously filed (mjlt, ). (Entered: 07/05/2006)
240 REPLY to Response to Motion re 221 MOTION for Leave to File Statement of Bases of All Objections to Class Membership filed by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 07/06/2006)
241 NOTICE of Appearance by TRACIE L. ADAMSON on behalf of LAURIE TARDIFF (ADAMSON, TRACIE) (Entered: 07/10/2006)
242 TRIAL LIST:. On Trial List for 9/11/2006. Final Pretrial Conference set for 9/5/2006 09:00 AM in Judge Carter's Chambers before JUDGE GENE CARTER. Final Pretrial Memo due by 8/7/2006.(mjlt, ) (Entered: 07/11/2006)
243 NOTICE of Appearance by BENJAMIN JAMES SMITH on behalf of LAURIE TARDIFF (SMITH, BENJAMIN) (Entered: 07/13/2006)
244 **STRICKEN PER ORDER OF JUDGE CARTER DATED 9/18/06**Witness List by KNOX COUNTY. (MARCHESI, PETER) Modified on 9/18/2006 to strike document(mjlt, ). (Entered: 07/17/2006)

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245 ORDER granting 221 , Motion for Leave to File. The said motion is hereby GRANTED, the Court finding no prejudice occasioned by it, that it will assist in the development of the record, serve the convenience of the Court and counsel in further proceedings and that no credible reason is advanced for its denial. So ORDERED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 07/18/2006)
246 ORDER denying 222 , Motion to Compel. Thee said motion is DENIED as not being filed in compliance with Local Rule 26(b). So ORDERED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 07/18/2006)
247 OBJECTION to 244 Witness List filed by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 07/20/2006)
248 MOTION for Conference of Counsel re 247 OBJECTION to 244 Witness List by LAURIE TARDIFF.Responses due by 8/10/2006. (STOLT, ROBERT) (Entered: 07/20/2006)
250 DEFENDANTS' LIST OF OBJECTIONS TO INDIVIDUALS ON PLAINTIFF'S CLASS MEMBERSHIP LIST by KNOX COUNTY, DANIEL DAVEY. (mjlt, ) (Entered: 07/28/2006)
249 MOTION to Amend Scheduling Order and Establish Deadlines for Motions in Limine and Challenges of Expert Testimony by KNOX COUNTY WITH INCORPORATED MEMO.Responses due by 8/17/2006. (MARCHESI, PETER) (Entered: 07/27/2006)
251 RESPONSE in Opposition re 249 MOTION to Amend Scheduling Order and Establish Deadlines for Motions in Limine and Challenges of Expert Testimony filed by LAURIE TARDIFF.Reply due by 8/14/2006. (ADAMSON, TRACIE) (Entered: 08/01/2006)
Reset Deadlines as to 249 MOTION to Amend Scheduling Order and Establish Deadlines for Motions in Limine and Challenges of Expert Testimony: Reply deadline expedited by the Court: Reply due by 8/3/2006.(ckb, ) (Entered: 08/02/2006)
252 REPLY to Response to Motion re 249 MOTION to Amend Scheduling Order and Establish Deadlines for Motions in Limine and Challenges of Expert Testimony filed by KNOX COUNTY. (Attachments: # 1 Exhibit A − E−mail, Marchesi to Stolt# 2 Exhibit B − E−mail, Campbell to Stolt)(MARCHESI, PETER) (Entered: 08/03/2006)
253 NOTICE of Appearance by JAMES A. BILLINGS on behalf of LAURIE TARDIFF (BILLINGS, JAMES) (Entered: 08/03/2006)
254 NOTICE of Appearance by KIMBERLY L. MURPHY on behalf of DANIEL DAVEY (MURPHY, KIMBERLY) (Entered: 08/04/2006)
255 ORDER granting 249 .The Motion to Amend the Scheduling Orderis hereby GRANTED and it is hereby ORDERED that the most recently entered Scheduling Order herein be, and it is hereby, AMENDED to require that all motions in limine herein be filed on or before August 28, 2006, that all objections thereto be filed on or before September 1, 2006 and that all replies thereto be filed on or before September 4, 2006. It is FURTHER ORDERED that all challenges to the testimoney of any proposed expert witness herein on Daubert, Kumho or other grounds be filed on or before August 21, 2006, all responses thereto by Plaintiffs be filed on or before August 30,2006 and all replies thereto be filed on or before September

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3, 2006 By Judge GENE CARTER. (CARTER, GENE) (Entered: 08/07/2006)
256 FINAL PRETRIAL MEMORANDUM by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 08/07/2006)
257 FINAL PRETRIAL MEMORANDUM by KNOX COUNTY and DANIEL DAVEY. (MARCHESI, PETER) Modified on 8/9/2006 to add Daniel Davey as a filer of this document (mjlt, ). (Entered: 08/07/2006)
258 MOTION for Certificate of Appealability by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 8/29/2006. (MARCHESI, PETER) (Entered: 08/08/2006)
259 NOTICE of Appearance by TIMOTHY P. FADGEN on behalf of KNOX COUNTY (FADGEN, TIMOTHY) (Entered: 08/08/2006)
NOTICE of Docket Entry Modification regarding 257 Final Pretrial Memorandum: This docket entry was modified by the Clerk's Office to add Daniel Davey as a filer of this document. (mjlt, ) (Entered: 08/09/2006)
260 ***STRICKEN PER ORDER OF JUDGE CARTER DATED 9/21/06***Exhibit List by KNOX COUNTY, DANIEL DAVEY.. (MARCHESI, PETER) Modified on 9/21/2006 to indicate this exhibit list is stricken(mjlt, ). (Entered: 08/21/2006)
261 Joint MOTION to Continue Trial by KNOX COUNTY WITH INCORPORATED MEMO.Responses due by 9/11/2006. (MARCHESI, PETER) (Entered: 08/21/2006)
262 **STRICKEN PER ORDER OF JUDGE CARTER DATED 9/21/06***Exhibit List by LAURIE TARDIFF.. (STOLT, ROBERT) Modified on 9/21/2006 to reflect this document is stricken (mjlt, ). (Entered: 08/21/2006)
263 MOTION to Exclude Testimony of Brian Rines, Ph.D. by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 9/11/2006. (Attachments: # 1 Exhibit 1 − Report of Rines# 2 Exhibit 2 − Deposition of Rines# 3 Exhibit 3 − 1992 Version of Ethics# 4 Exhibit 4 − 2002 Version of Ethics# 5 Exhibit 5 − Forensic Specialty Guidelines# 6 Exhibit 6 − Robinson Deposition Transcript)(MARCHESI, PETER) (Entered: 08/21/2006)
264 ***DOCUMENT TO BE REFILED AT THE CLERK'S OFFICE REQUEST***TRIAL BRIEF by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) Modified on 8/22/2006 to reflect this document is to be refiled at the Clerk's Office Request(mjlt, ). (Entered: 08/21/2006)
Reset Deadlines as to 263 MOTION to Exclude Testimony of Brian Rines, Ph.D. Pursuant to Judge Carter's Order dated August 7, 2006 (Pleading No. 255): Responses due by 8/30/2006.(mjlt, ) (Entered: 08/22/2006)
NOTICE of Docket Entry Modification regarding 264 Trial Brief: This docket entry was modified by the Clerk's Office to reflect that the Trial Brief is to be refiled at the Clerk's Office request. The Defendants' Trial Brief, Proposed Jury Instructions, Exhibit List and Witness List need to be filed using seperate docket events found under the CM/ECF events category labeled "Trial Documents". (mjlt, ) (Entered: 08/22/2006)

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265 TRIAL BRIEF by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 08/22/2006)
266 Witness List by KNOX COUNTY, DANIEL DAVEY (AMENDED). (MARCHESI, PETER) (Entered: 08/22/2006)
267 ***STRICKEN PER ORDER OF JUDGE CARTER DATED 9/21/06***Exhibit List by KNOX COUNTY, DANIEL DAVEY.. (MARCHESI, PETER) Modified on 9/21/2006 to reflect document is stricken per order of Judge Carter(mjlt, ). (Entered: 08/22/2006)
268 Proposed Jury Instructions by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 08/22/2006)
269 ***STRICKEN PER ORDER OF JUDGM CARTER DATED 9/21/06**Exhibit List (Amended) by KNOX COUNTY, DANIEL DAVEY.. (MARCHESI, PETER) Modified on 9/21/2006 to reflect document is stricken per order of Judge Carter (mjlt, ). (Entered: 08/23/2006)
270 ORDER granting 261 Motion to Continue By Judge GENE CARTER. (mjlt, ) (Entered: 08/24/2006)
Set Deadlines: Plaintiffs are to file their proposal of a systematic procedure for the presentation and determination of damages by the jury by 8/28/2006. Defendants shall file their response to Plaintiffs' proposal by 9/1/2006.(mjlt, ) (Entered: 08/24/2006)
Reset Deadlines Pursuant to Order Granting the Joint Motion To Continue Trial: On Trial List for 10/3/2006.(mjlt, ) (Entered: 08/24/2006)
271 NOTICE of Hearing: Jury Selection set for 10/3/2006 09:00AM before JUDGE GENE CARTER. (mjlt, ) (Entered: 08/24/2006)
272 NOTICE of Hearing: Jury Trial set for 10/4/2006 08:30 AM before JUDGE GENE CARTER. Counsel should note the Court has reserved 15 days for this trial, and that Judge Carter conducts trial from 8:30 a.m. to 2:15 p.m. each day with (2) 15 minute recesses and no luncheon recess. (mjlt, ) (Entered: 08/24/2006)
273 MOTION to Extend Time to File Opposition to Defendants' Motion for Certificate of Appealability by LAURIE TARDIFF.Responses due by 9/15/2006. (BILLINGS, JAMES) (Entered: 08/25/2006)
274 TRIAL BRIEF by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 08/25/2006)
275 ORDER denying 273 Motion to Extend Time By Judge GENE CARTER. (mjlt, ) (Entered: 08/25/2006)
276 Proposed Voir Dire by KNOX COUNTY, DANIEL DAVEY. (WALL, JOHN) (Entered: 08/25/2006)
277 MOTION in Limine To Exclude Evidence of Plaintiff's Witnesses Prior Arrests and Convictions by LAURIE TARDIFF.Responses due by 9/18/2006. (BILLINGS, JAMES) Modified on 8/29/2006 to add the language "To Exclude Evidence of Plaintiff's Witnesses Prior Arrests and Convictions"(mjlt, ). (Entered: 08/28/2006)
278 MOTION in Limine To Exclude Testimony by Dr. Robinson Beyond The Scope of Disclosure by LAURIE TARDIFF.Responses due by 9/18/2006. (Attachments: # 1

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Exhibit 2−Page report of Dr. Robinson)(ADAMSON, TRACIE) Modified on 8/29/2006 to add language "To Exclude Testimony by Dr. Robinson Beyond The Scope of Disclosure"(mjlt, ). (Entered: 08/28/2006)
279 MOTION in Limine to Exclude Defendants' purported Rule 1006 "Summaries" by LAURIE TARDIFF.Responses due by 9/18/2006. (ADAMSON, TRACIE) (Entered: 08/28/2006)
280 BRIEF re: Proposal of Systematic Procedure For The Presentation and Determination of Damages By The Jury by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 8/29/2006 to add the language− "Proposal of Systematic Procedure For The Presentation and Determination of Damages By The Jury" (mjlt, ). (Entered: 08/28/2006)
281 MOTION in Limine by KNOX COUNTY, DANIEL DAVEY with Incorporated Memorandum of Law.Responses due by 9/18/2006. (Attachments: # 1 Exhibit 1 − Affidavit of Daniello 7−8−05# 2 Exhibit 2 − Affidavit of Daniello 8−28−06# 3 Exhibit 3 − Affidavit of Campbell# 4 Exhibit 4 − McCauley Summary# 5 Exhibit 5 − McCauley Logs# 6 Exhibit 6 − Affidavit of Marchesi)(WALL, JOHN) (Entered: 08/28/2006)
282 MOTION for Leave to File Motion and Memo in Excess of Page Limits by KNOX COUNTY, DANIEL DAVEY.Responses due by 9/18/2006. (WALL, JOHN) (Entered: 08/28/2006)
Reset Deadlines as to 281 MOTION in Limine, 277 MOTION in Limine To Exclude Evidence of Plaintiff's Witnesses Prior Arrests and Convictions, 279 MOTION in Limine to Exclude Defendants' purported Rule 1006 "Summaries" Pursuant to Judge Carter's Order dated August 7, 2006: Responses due by 9/1/2006.(mjlt, ) (Entered: 08/29/2006)
283 RESPONSE in Opposition re 258 MOTION for Certificate of Appealability filed by LAURIE TARDIFF.Reply due by 9/11/2006. (THISTLE, DALE) (Entered: 08/29/2006)
284 ORDER denying 258 Motion for Certificate of Appealability By Judge GENE CARTER. (mjlt, ) (Entered: 08/30/2006)
285 RESPONSE in Opposition re 263 MOTION to Exclude Testimony of Brian Rines, Ph.D. with Incorporated Memorandum filed by LAURIE TARDIFF.Reply due by 9/11/2006. (Attachments: # 1 Affidavit Brian Rines, Ph.D.)(ADAMSON, TRACIE) (Entered: 08/30/2006)
Reset Deadlines as to 263 MOTION to Exclude Testimony of Brian Rines, Ph.D. Pursuant to Judge Carter's Order dated 8/7/06: Reply due by 9/3/2006.(mjlt, ) (Entered: 08/31/2006)
286 RESPONSE to Motion re 278 MOTION in Limine To Exclude Testimony by Dr. Robinson Beyond The Scope of Disclosure filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 9/12/2006. (Attachments: # 1 Errata A − Defendant's Expert Designation)(MARCHESI, PETER) (Entered: 09/01/2006)
287 RESPONSE to Motion re 279 MOTION in Limine to Exclude Defendants' purported Rule 1006 "Summaries" filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 9/12/2006. (Attachments: # 1 Affidavit of Donna Campbell# 2 Exhibit A − E−mail of 7/20/06# 3 Affidavit of Peter Marchesi# 4 Exhibit B − 4/10/03 Letter from Marchesi to Stolt)(MARCHESI, PETER) (Entered: 09/01/2006)

09/01/2006 09/01/2006 09/01/2006 09/01/2006 09/01/2006 09/03/2006 09/03/2006 09/03/2006 09/03/2006 09/03/2006 09/03/2006 09/05/2006 09/05/2006

288 **STRICKEN PER ORDER OF JUDGE CARTER DATED 9/18/06***Witness List by LAURIE TARDIFF, DANIEL DAVEY (Second Amended). (MARCHESI, PETER) Modified on 9/18/2006 to indicate document is stricken (mjlt, ). (Entered: 09/01/2006)
289 RESPONSE in Opposition re 277 MOTION in Limine To Exclude Evidence of Plaintiff's Witnesses Prior Arrests and Convictions with Incorporated Memorandum of Law filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 9/12/2006. (WALL, JOHN) (Entered: 09/01/2006)
290 REPLY to Response to Motion re 263 MOTION to Exclude Testimony of Brian Rines, Ph.D. filed by KNOX COUNTY, DANIEL DAVEY. (MARCHESI, PETER) (Entered: 09/01/2006)
291 OBJECTION to 280 Brief, including Response and Objection, with Incorporated Memorandum of Law filed by KNOX COUNTY, DANIEL DAVEY. (WALL, JOHN) (Entered: 09/01/2006)
292 RESPONSE to Motion re 281 MOTION in Limine filed by LAURIE TARDIFF.Reply due by 9/12/2006. (Attachments: # 1 Exhibit Robert J. Stolt, Esq., Affidavit)(BILLINGS, JAMES) (Entered: 09/01/2006)
293 MOTION for Reconsideration re 164 Order on Motion for Reconsideration by LAURIE TARDIFF.Responses due by 9/25/2006. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(STOLT, ROBERT) (Entered: 09/03/2006)
294 ADDITIONAL ATTACHMENTS filed by LAURIE TARDIFF re 293 Motion for Reconsideration. Main Document: Ex. F to Mot. to Reconsider. (Attachments: # 1 Exhibit F# 2 Exhibit G# 3 Exhibit H)(STOLT, ROBERT) (Entered: 09/03/2006)
295 REPLY to Response to Motion re 281 MOTION in Limine with Incorporated Memorandum of Law filed by KNOX COUNTY, DANIEL DAVEY. (WALL, JOHN) (Entered: 09/03/2006)
296 REPLY to Response to Motion re 277 MOTION in Limine To Exclude Evidence of Plaintiff's Witnesses Prior Arrests and Convictions with Incorporated Memorandum of Law filed by LAURIE TARDIFF. (ADAMSON, TRACIE) (Entered: 09/03/2006)
297 REPLY to Response to Motion re 279 MOTION in Limine to Exclude Defendants' purported Rule 1006 "Summaries" filed by LAURIE TARDIFF. (Attachments: # 1 Affidavit Robert J. Stolt, Esq.)(ADAMSON, TRACIE) (Entered: 09/03/2006)
298 First MOTION For Judicial Determination of the Number of People in the Class. by LAURIE TARDIFF With Incorporated Memorandum of Law.Responses due by 9/25/2006. (ADAMSON, TRACIE) (Entered: 09/03/2006)
299 Minute Entry for proceedings held before Judge GENE CARTER : Conference of Counsel held. Procedural Order to issue (Court Reporter Lori Dunbar) (mjlt, ) (Entered: 09/05/2006)
300 PROCEDURAL ORDER &ORDER TO SHOW CAUSE: Objection to Proposed Course of Action due by 9/13/2006. By Judge GENE CARTER. (mjlt, ) (Entered: 09/05/2006)

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301 TRANSCRIPT of Proceedings Status Conference held on 9/5/06 before Judge Gene Carter. Court Reporter: Lori Dunbar. For a bound copy of this transcript, contact Lori Dunbar at (207)749−4072.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(DUNBAR, LORI) (Entered: 09/05/2006)
302 ORDER DENYING PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFFS' WITNESSES PRIOR ARRESTS AND CONVICTIONS − denying 277 Motion in Limine to Exclude Evidence of Plaintiffs' Witnesses Prior Arrests and Convictions. By Judge GENE CARTER. (mnw, ) (Entered: 09/11/2006)
303 ORDER DENYING PLAINTIFFS' MOTION TO EXCLUDE IN LIMINE RULE 1006 SUMMARIES − denying 279 Motion in Limine to Exclude In Limine Rule 1006 Summaries. By Judge GENE CARTER. (mnw, ) (Entered: 09/11/2006)
304 ORDER DENYING DEFENDANTS' MOTION IN LIMINE − denying 281 Motion in Limine seeking pretrial ruling on the admissibility of six specific categories of proposed evidence. By Judge GENE CARTER. (mnw, ) (Entered: 09/11/2006)
305 ORDER granting 282 Motion for Leave to File By Judge GENE CARTER. (mjlt, ) (Entered: 09/11/2006)
306 ORDER ON PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY BY DR. ROBINSON BEYOND THE SCOPE OF DISCLOSURE re: 278 Motion in Limine to Exclude Testimony by Dr. Robinson Beyond the Scope of Disclosure. By Judge GENE CARTER. (mnw, ) (Entered: 09/11/2006)
307 ORDER REJECTING PLAINTIFFS' PROPOSAL OF A SYSTEMATIC PROCEDURE FOR THE PRESENTATION AND DETERMINATION OF DAMAGES BY THE JURY re: 280 Proposal of Systematic Procedure For The Presentation and Determination of Damages By The Jury filed by LAURIE TARDIFF. By Judge GENE CARTER. (mnw, ) (Entered: 09/11/2006)
308 REVISED TRANSCRIPT of Proceedings Status Conference held on September 5, 2006 before Judge Gene Carter. Court Reporter: Lori Dunbar.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
Note to Counsel: This transcript has been revised to make some typographical changes to the transcript filed on September 5, 2006, document number 301 . Any questions regarding changes to the transcript or to obtain a bound copy of the transcript, you may contact Lori Dunbar at (207)749−4072. (ckb, ) (Entered: 09/11/2006)
309 ***STRICKEN PER ORDER OF JUDGE CARTER DATED 9/18/06***Witness List by KNOX COUNTY, DANIEL DAVEY (Third Amended). (MARCHESI, PETER) Modified on 9/18/2006 to indicate this document is stricken (mjlt, ). (Entered: 09/13/2006)
310 RESPONSE in Opposition re 298 First MOTION For Judicial Determination of the Number of People in the Class. filed by KNOX COUNTY, DANIEL DAVEY.Reply due by

09/13/2006
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9/25/2006. (MARCHESI, PETER) (Entered: 09/13/2006)
311 Response to Show Cause Order by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 9/14/2006 to reflect this is a response to Order to Show Cause and not a Motion for Order to Show Cause. The 21 day response deadline has now been removed from this docket entry (mjlt, ). (Entered: 09/13/2006)
Reset Deadlines Pursuant To Judge Carter's Order dated 9/5/06− Defendant's shall file their Reply to Plaintiff's Response to Order to Show Cause by 9/18/2006.(mjlt, ) (Entered: 09/14/2006)
312 RESPONSE in Opposition re 293 MOTION for Reconsideration re 164 Order on Motion for Reconsideration with Incorporated Memorandum of Law filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 9/28/2006. (WALL, JOHN) (Entered: 09/17/2006)
313 RESPONSE to 311 RESPONSE TO ORDER TO SHOW CAUSE filed by KNOX COUNTY, DANIEL DAVEY. (WALL, JOHN) (Entered: 09/18/2006)
314 ORDER denying 298 Motion For Judicial Determination of the Number of People in the Class By Judge GENE CARTER. (mjlt, ) (Entered: 09/18/2006)
315 ORDER denying 293 Motion for Reconsideration By Judge GENE CARTER. (mjlt, ) (Entered: 09/18/2006)
316 ORDER PURGING THE DOCKET OF SUPERFLUOUS AND UNAUTHORIZED WITNESS LISTS OF THE PARTIES By Judge GENE CARTER. (mjlt, ) (Entered: 09/18/2006)
317 MOTION for Reconsideration re 316 Order Purging the Docket on Superfluous and Unauthorized Witness Lists by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 10/10/2006. (MARCHESI, PETER) (Entered: 09/18/2006)
318 ORDER terminating 247 Objection to 244 as resolved by this Court's Orders 316 and 319 . By Judge GENE CARTER. (CARTER, GENE) Modified on 9/19/2006 to reflect the Court's Orders are 316 amd 319 (mjlt, ). (Entered: 09/19/2006)
319 ORDER VACATING PRIOR ORDER RE: BIFURCATION FOR TRIAL AND DECERTIFYING CLASS ACTION ON ISSUES OF ELIGIBILITY FOR CLASS MEMBERSHIP AND DETERMINATION OF INDIVIDUAL DAMAGES By Judge GENE CARTER. (mjlt, ) (Entered: 09/19/2006)
NOTICE of Docket Entry Modification regarding 318 Order on Objection: This docket entry was modified by the Clerk's Office to reflect on 9/19/2006 the objection was resolved by the Court's Orders pleading no. 316 and 319, and not 318.(mjlt, ) (Entered: 09/19/2006)
320 ORDER terminating 311 Motion for Order as resolved by the Court's Order 319 . By Judge GENE CARTER. (CARTER, GENE) (Entered: 09/19/2006)
321 ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION ON ORDER PURGING THE DOCKET ON SUPERFLUOUS AND UNAUTHORIZED WITNESS LISTS re: 317 Motion for Reconsideration By Judge GENE CARTER. (mjlt, ) (Entered: 09/19/2006)

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322 NOTICE of Hearing: Settlement Conference set for 9/29/2006 09:00 AM before JUDGE GEORGE Z. SINGAL. (mjlt, ) (Entered: 09/19/2006)
323 ***STRICKEN PER ORDER OF JUDGE CARTER DATED 9/21/06***Exhibit List (Second Amended) by KNOX COUNTY, DANIEL DAVEY.. (MARCHESI, PETER) Modified on 9/21/2006 to reflect document is stricken per Order of Judge Carter (mjlt, ). (Entered: 09/20/2006)
324 ORDER STRIKING PREVIOUSLY FILED EXHIBIT LISTS By Judge GENE CARTER. (mjlt, ) (Entered: 09/21/2006)
Set Deadlines: CONSOLIDATED EXHIBIT LIST(1) due by 9/29/2006.(mjlt, ) (Entered: 09/21/2006)
325 Exhibit List Consolidated by LAURIE TARDIFF.. (STOLT, ROBERT) (Entered: 09/29/2006)
326 MOTION to Amend 217 Witness List by LAURIE TARDIFF.Responses due by 10/20/2006. (STOLT, ROBERT) (Entered: 09/29/2006)
327 Witness List by LAURIE TARDIFF Amended. (STOLT, ROBERT) (Entered: 09/29/2006)
328 Minute Entry for proceedings held before Judge GEORGE Z. SINGAL : Settlement Conference held. This case settled subject to the votes of approval by Knox County and the Risk Pool which will take place on Monday, October 2, 2006 by 1:00 p.m. Defense counsel are instructed to contact the Clerk's Office, Judge Carter's chambers, and Plaintiff's counsel once both votes have taken place. If approval is not obtained, there is no settlement and jury selection and trial will go forward as scheduled. (mjlt, ) (Entered: 10/02/2006)
329 NOTICE of Settlement by Plaintiff: SETTLEMENT: Counsel having advised the Court on October 2, 2006 that settlement has been effected by mutual agreement of the parties herein. By DEPUTY CLERK:Michelle Thibodeau. (mjlt, ) (Entered: 10/02/2006)
Set Deadlines: Motion For Approval Of Settlement and Recertify the Class due by 10/3/2006.(mjlt, ) (Entered: 10/02/2006)
330 NOTICE of Hearing: Conference of Counsel on the Motion for Approval of Settlement and Motion To Recertify the Class set for 10/11/2006 09:30 AM in Courtroom 3 before JUDGE GENE CARTER. (mjlt, ) (Entered: 10/02/2006)
331 MOTION for Conference of Counsel by LAURIE TARDIFF.Responses due by 10/24/2006. (LIPMAN, SUMNER) (Entered: 10/03/2006)
332 MOTION to Extend Time by LAURIE TARDIFF.Responses due by 10/24/2006. (Attachments: # 1 Letter to Chief Judge Singal)(LIPMAN, SUMNER) (Entered: 10/03/2006)
333 REPORT OF CONFERENCE − granting 331 Motion for Conference of Counsel By Judge GEORGE Z. SINGAL. (mnw, ) (Entered: 10/03/2006)
334 Remark − Counsel were advised by the Clerk's Office this date that Judge Carter wants them to confer and make serious efforts to agree on the language of a proposed injunction. If counsel are unable to reach agreement, counsel shall prepare their own submissions for a proposed injunction. Counsel shall have their submissions ready to submit to the Court for the

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Conference of Counsel scheduled for October 11, 2006. (mnw, ) (Entered: 10/04/2006)
335 Remark − Counsel were advised by the Clerk's Office this date that Judge Carter wants the proposed injunction submissions filed with the Court the morning of Tuesday, October 10, 2006. (mnw, ) (Entered: 10/06/2006)
336 BRIEF MEMORANDUM OF LAW IN SUPPORT OF PROPOSED INJUNCTIVE ORDER by KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibit 1 − e−mail text# 2 Text of Proposed Order Exhibit 2 − Plaintiff's Proposed Order# 3 Text of Proposed Order Defendant's Proposed Order)(MARCHESI, PETER) Modified on 10/10/2006 to clean up docket text (mnw, ). (Entered: 10/10/2006)
337 MOTION Joint Motion to Recertify by LAURIE TARDIFF.Responses due by 10/31/2006. (STOLT, ROBERT) (Entered: 10/10/2006)
338 MOTION Preliminary Approval of Class Settlement by LAURIE TARDIFF.Responses due by 10/31/2006. (STOLT, ROBERT) (Entered: 10/10/2006)
339 Final Settlement Agreement by LAURIE TARDIFF (Attachments: # 1 Exhibit Ex. A. − Notice of Settlement# 2 Exhibit Ex. B. Settlement Claim Form# 3 Exhibit Ex. C − Newspaper release# 4 Exhibit Ex. D − Press Release# 5 Exhibit Ex. E − Analytics information# 6 Exhibit Ex. F − envelope)(STOLT, ROBERT) Modified on 10/10/2006 to clean up docket text (mnw, ). (Entered: 10/10/2006)
340 PROPOSED ORDER ON SETTLEMENT AGREEMENT filed by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 10/10/2006 to reflect that the attached document is a proposed order, not a motion for order (mnw, ). (Entered: 10/10/2006)
341 PROPOSED ORDER OF PERMANENT INJUNCTION filed by LAURIE TARDIFF. (STOLT, ROBERT) Modified on 10/10/2006 to reflect that the attached document is a proposed order, not a motion for order (mnw, ). (Entered: 10/10/2006)
342 DEFENDANTS' FINAL SETTLEMENT AGREEMENT by KNOX COUNTY, DANIEL DAVEY (MARCHESI, PETER) Modified on 10/11/2006 to clean up docket text (mnw, ). (Entered: 10/10/2006)
343 LETTER TO JUDGE CARTER &JUDGE SINGAL FROM LAURIE L. TARDIFF DATED OCTOBER 6, 2006. (Attachments: # 1 EXHIBIT A# 2 EXHIBIT B# 3 EXHIBIT)(mnw, ) (Entered: 10/11/2006)
344 THE COURT'S PROPOSED PERMANENT INJUNCTION PURSUANT TO SETTLEMENT AGREEMENT − By Judge GENE CARTER. (mnw, ) (Entered: 10/11/2006)
345 Minute Entry for proceedings held before Judge GENE CARTER.Conference of Counsel held to determine if there is a settlement agreement. Issues where agreement has not been reached were discussed. Specific Document Deadline (1)(Amended Settlement Agreement, if one can be reached) due by 10/13/2006. (Court Reporter LORI DUNBAR) (mnw, ) (Entered: 10/11/2006)
346 NOTICE/CORRESPONDENCE Re: Entry of Appearance and Request for Conference by LAURIE TARDIFF (ROBITZEK, WILLIAM) (Entered: 10/13/2006)

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347 NOTICE/CORRESPONDENCE Re: Entry of Appearance by LAURIE TARDIFF (ROBITZEK, WILLIAM) (Entered: 10/13/2006)
348 NOTICE of Appearance by WILLIAM D. ROBITZEK on behalf of LAURIE TARDIFF (ROBITZEK, WILLIAM) (Entered: 10/13/2006)
349 NOTICE/CORRESPONDENCE Re: Entry of Appearance and Request for Conference by LAURIE TARDIFF (ROBITZEK, WILLIAM) (Entered: 10/13/2006)
RESET Deadlines − UPON THE ORAL REQUEST OF THE PARTIES TO EXTEND THE DEADLINE FOR FILING THE AMENDED SETTLEMENT AGREEMENT AND THE REQUEST HAVING BEEN GRANTED BY JUDGE CARTER: Specific Document Deadline (1)(Amended Settlement Agreement, if one can be reached) due by 10/16/2006.(mnw, ) (Entered: 10/13/2006)
350 MOTION to Strike Laurie Tardiff as Class Representative by LAURIE TARDIFF.Responses due by 11/6/2006. (STOLT, ROBERT) (Entered: 10/16/2006)
351 Final Settlement Agreement and Exhibits by KNOX COUNTY, DANIEL DAVEY (Attachments: # 1 Exhibit A − Notice# 2 Exhibit B − Claim Form# 3 Exhibit C − Posting# 4 Exhibit D − Press Release# 5 Exhibit E − Simmons Declaration# 6 Exhibit F − Envelope# 7 Exhibit G − Proposed Injunctive Order)(WALL, JOHN) Modified on 10/17/2006 to clean up docket text (mnw, ). (Entered: 10/16/2006)
352 MOTION to Substitute Party (No PDF document is attached to this entry. The Motion to Substitute is included within Motion #350 to Strike, to view Motion to Substitute, see #350) by LAURIE TARDIFF.Responses due by 11/6/2006. (mnw, ) (Entered: 10/17/2006)
353 NOTICE OF HEARING: Conference of Counsel set for 10/24/2006 at 9:00 AM in Courtroom 3 before JUDGE GENE CARTER. (mnw, ) (Entered: 10/17/2006)
RESET Deadlines as to 350 MOTION to Strike Laurie Tardiff as Class Representative and Motion to Substitute Party − AT THE REQUEST OF JUDGE CARTER: Responses due by 10/23/2006. The defendants and William D. Robitzek on behalf of Laurie Tardiff are directed to file their response to Motion #350 to Strike/Substitute Party on Monday, October 23, 2006. William D. Robitzek on behalf of Laurie Tardiff is also directed to file his response to Final Settlement Agreement #351 on Monday, October 23, 2006. (mnw, ) (Entered: 10/17/2006)
354 WITHDRAWAL of : 350 MOTION to Strike Laurie Tardiff as Class Representative by LAURIE TARDIFF. (STOLT, ROBERT) (Entered: 10/17/2006)
355 MOTION to Substitute Party Dale Dare as Class Representative by LAURIE TARDIFF.Responses due by 11/7/2006. (STOLT, ROBERT) (Entered: 10/17/2006)
RESET Deadlines as to 355 MOTION to Substitute Party Dale Dare as Class Representative − AT THE REQUEST OF JUDGE CARTER: Responses due by 10/23/2006.(mnw, ) (Entered: 10/17/2006)
356 MOTION For Leave to Withdraw as Class Representative by LAURIE TARDIFF.Responses due by 11/7/2006.

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(ROBITZEK, WILLIAM) (Entered: 10/17/2006)
RESET Deadlines as to 356 MOTION For Leave to Withdraw as Class Representative − AT THE REQUEST OF JUDGE CARTER: Responses due by 10/23/2006.(mnw, ) (Entered: 10/17/2006)
357 TRANSCRIPT of Proceedings Conference of Counsel held on 10/11/06 before Judge Gene Carter. Court Reporter: Lori Dunbar. For a bound copy of this transcript, contact Lori Dunbar at (207) 749−4072.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(DUNBAR, LORI) (Entered: 10/18/2006)
358 BRIEF PLAINTIFF'S RESPONSE TO FINAL SETTLEMENT AGREEMENT, DOCKET ITEM NO. 351 by LAURIE TARDIFF. (ROBITZEK, WILLIAM) (Entered: 10/23/2006)
359 RESPONSE to Motion re 356 MOTION For Leave to Withdraw as Class Representative filed by LAURIE TARDIFF.Reply due by 11/3/2006. (STOLT, ROBERT) (Entered: 10/23/2006)
360 RESPONSE to Motion re 355 MOTION to Substitute Party Dale Dare as Class Representative (PARTIAL OBJECTION TO MOTION) filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 11/3/2006. (MARCHESI, PETER) (Entered: 10/23/2006)
361 RESPONSE to Motion re 356 MOTION For Leave to Withdraw as Class Representative filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 11/3/2006. (MARCHESI, PETER) (Entered: 10/23/2006)
362 RESPONSE to Motion re 355 MOTION to Substitute Party Dale Dare as Class Representative filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 11/3/2006. (WALL, JOHN) (Entered: 10/23/2006)
363 RESPONSE to Motion re 356 MOTION For Leave to Withdraw as Class Representative filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 11/3/2006. (WALL, JOHN) (Entered: 10/23/2006)
364 THE COURT'S AMENDED PROPOSED PERMANENT INJUNCTION PURSUANT TO SETTLEMENT AGREEMENT (COURT'S REDRAFT) By Judge GENE CARTER. (mnw, ) (Entered: 10/24/2006)
365 Minute Entry for proceedings held before Judge GENE CARTER. Conference of Counsel held re: settlement. Written Decision to issue. (Court Reporter DENNIS FORD) (mnw, ) (Entered: 10/24/2006)
366 SETTLEMENT AGREEMENT − Remark: This document resulted from Chief Judge Singal's Settlement Conference on September 29, 2006 and was inadvertantly not docketed on that date. It is now docketed at the direction of Senior Judge Carter as a material docket entry. (mnw, ) (Entered: 10/24/2006)
367 ORDER ON MOTIONS IN RESPECT TO CHANGE OF CLASS REPRESENTATIVE granting 355 Motion to Substitute Party. DALE DARE rep by TRACIE L. ADAMSON, BENJAMIN JAMES SMITH, DALE F.

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THISTLE, FRANK P. DIPRIMA, ROBERT J. STOLT, SUMNER H. LIPMAN, JAMES A. BILLINGS added. LAURIE TARDIFF terminated as class representative granting 356 Motion to withdraw as class representative. By Judge GENE CARTER. (mnw, ) Modified on 10/24/2006 to add text that Laurie Tardiff has been terminated as class representative (mnw, ). (Entered: 10/24/2006)
NOTICE of Docket Entry Modification regarding 367 ORDER ON MOTIONS IN RESPECT TO CHANGE OF CLASS REPRESENTATIVE: DOCKET ENTRY TEXT MODIFIED BY THE CLERK'S OFFICE TO ADD TEXT TO REFLECT THAT LAURIE TARDIFF WAS TERMINATED "AS CLASS REPRESENTATIVE". (mnw, ) (Entered: 10/24/2006)
368 ORDER ON MOTION FOR APPROVAL OF CLASS SETTLEMENT − reserving ruling on 338 Motion for Preliminary Approval of Class Settlement, 339 Plaintiff's Proposed Final Settlement Agreement, 342 Defendant's Proposed Final Settlement Agreement and 351 Joint Final Settlement Agreement. By Judge GENE CARTER. (mnw, ) (Entered: 10/24/2006)
SET Deadlines − PER ORDER #368 FOR APPROVAL OF CLASS SETTLEMENT: Specific Document Deadline (1)(Parties to advise the Clerk's Office if they will pursue the filing of a Third Final Settlement Agreement) due by 11/3/2006.(mnw, ) (Entered: 10/24/2006)
369 ORDER dismissing 332 ,Motion to Extend Time as MOOT. So ORDERED. By Judge GENE CARTER. (CARTER, GENE) (Entered: 10/26/2006)
370 TRANSCRIPT of Proceedings Motion Hearing held on 10−24−06 before Judge Gene Carter. Court Reporter: Dennis R. Ford. For a bound copy of this transcript, contact Dennis R. Ford at 207−831−8056.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(FORD, DENNIS) (Entered: 11/02/2006)
SET Deadlines − PER ORDER #368: Specific Document Deadline (1)(THIRD FINAL SETTLEMENT AGREEMENT) due by 11/14/2006.(mnw, ) (Entered: 11/03/2006)
371 NOTICE: It is ordered that the parties file an in camera statement setting forth their position with respect to the information contained in the November 13, 2006 letter from Attorney John Wall to Judge Carter which is currently filed in camera.Judge Carter is inclined to file Attorney Wall's letter in the public file. Counsel should indicate in their statement whether or not Attorney Wall's letter should remain in camera.After review of the in camera statements the Court may schedule a further conference of counsel.(ckb, ) (Entered: 11/14/2006)
372 AMENDED NOTICE
It is ordered that the parties file an in camera statement setting forth their position with respect to the information contained in the November 13, 2006 letter from Attorney John Wall to Judge Carter which is currently filed in camera. Judge Carter is inclined to file Attorney Wall's letter in the public file. Counsel should indicate in their statement whether or not Attorney Wall's letter should remain in camera. After review of the in

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camera statements the Court may schedule a further conference of counsel. Statements are due no later than November 20, 2006.
(ckb, ) (Entered: 11/16/2006)
373 NOTICE OF HEARING: Conference of Counsel set for 11/27/2006 at 10:30 AM in Courtroom 3 before JUDGE GENE CARTER. (mnw, ) (Entered: 11/20/2006)
374 Minute Entry for proceedings held before Judge GENE CARTER.Conference of Counsel held re: status of settlement, Set Deadlines: Specific Document Deadline (1)(Settlement Agreement) due by 12/15/2006. (Court Reporter LORI DUNBAR) (mnw, ) (Entered: 11/27/2006)
375 TRANSCRIPT of Proceedings Conference of Counsel held on 11/27/06 before Judge Gene Carter. Court Reporter: Lori Dunbar. For a bound copy of this transcript, contact Lori Dunbar at (207) 749−4072.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(DUNBAR, LORI) (Entered: 12/01/2006)
376 NOTICE of Settlement by DALE DARE (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(STOLT, ROBERT) Modified on 12/18/2006 to clean up exhibit docket text (mnw, ). Modified on 12/18/2006 to correct filer to be Dale Dare and not Laurie Tardiff (mnw, ). (Entered: 12/15/2006)
377 NOTICE OF HEARING: Hearing set for 12/18/2006 at 2:30 PM in Courtroom 3 before JUDGE GENE CARTER. (mnw, ) (Entered: 12/15/2006)
NOTICE of Docket Entry Modification regarding 376 Notice of Settlement: DOCKET ENTRY TEXT MODIFIED BY THE CLERK'S OFFICE TO CORRECT FILER TO BE DALE DARE, NOT LAURIE TARDIFF. (mnw, ) (Entered: 12/18/2006)
378 ORDER ON MOTION FOR APPROVAL OF THIRD FINAL CLASS SETTLEMENT AGREEMENT − By Judge GENE CARTER. (mnw, ) (Entered: 12/18/2006)
379 THE COURT'S PERMANENT INJUNCTION PURSUANT TO THIRD FINAL SETTLEMENT AGREEMENT − By Judge GENE CARTER. (mnw, ) (Entered: 12/18/2006)
380 NOTICE OF HEARING: Final Fairness Hearing set for 4/23/2007 at 10:00 AM in Courtroom 3 before JUDGE GENE CARTER. (mnw, ) (Entered: 12/18/2006)
381 Minute Entry for proceedings held before Judge GENE CARTER.Hearing on Motion for Approval of Third Final Settlement Agreement held on 12/18/2006. (Court Reporter LORI DUNBAR) (mnw, ) (Entered: 12/18/2006)
382 ADDITIONAL ATTACHMENTS (Revised Attachments) filed by DALE DARE re 376 Notice of Settlement,. Main Document: Exhibit A − Notice. (Attachments: # 1 Exhibit A# 2 Exhibit # 3 Exhibit D − Press Release# 4 Exhibit F# 5 Exhibit G)(STOLT, ROBERT) Modified on 12/20/2006 to clean up exhibit docket text (mnw, ). (Entered: 12/19/2006)

12/21/2006
12/29/2006
01/29/2007 03/20/2007 03/22/2007 03/30/2007 03/30/2007
04/20/2007 04/20/2007 04/20/2007
04/20/2007 04/20/2007

383 TRANSCRIPT of Proceedings Conference of Counsel held on 12/18/06 before Judge Gene Carter. Court Reporter: Lori Dunbar. For a bound copy of this transcript, contact Lori Dunbar at (207)749−4072.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(DUNBAR, LORI) (Entered: 12/21/2006)
384 ORDER VACATING PRIOR ORDER DECERTIFYING CLASS ACTION ON ISSUES OF ELIGIBILITY FOR CLASS MEMBERSHIP AND DETERMINATION OF INDIVIDUAL DAMAGES AND RECERTIFYING THE CLASS by Judge GENE CARTER. (ckb, ) (Entered: 12/29/2006)
385 ORDER dismissing 248 Motion for Conference of Counsel, dismissing 263 Motion to Exclude, dismissing 326 Motion to Amend. "MOTIONS DISMISSED WITHOUT PREJUDICE AS NOW APPEARING TO BE MOOT." By Judge GENE CARTER. (mjlt, ) (Entered: 01/29/2007)
386 MOTION for Leave to File TO EXCEED 20 PAGE LIMITATION by KNOX COUNTY, DANIEL DAVEY WITH INCORPORATED MEMO.Responses due by 4/10/2007. (MARCHESI, PETER) (Entered: 03/20/2007)
387 ORDER granting 386 Motion for Leave to File By Judge GENE CARTER. (mjlt, ) (Entered: 03/22/2007)
388 MOTION for Approval of Settlement by DALE DARE.Responses due by 4/20/2007. (STOLT, ROBERT) (Entered: 03/30/2007)
389 MOTION for Attorney Fees by DALE DARE.Responses due by 4/20/2007. (Attachments: # 1 Affidavit to Motion for Fees# 2Exhibit A to Affidavit# 3 Exhibit B to Affidavit# 4 Exhibit C to Affidavit# 5 Exhibit D to Affidavit)(STOLT, ROBERT) Modified on 4/2/2007 to remove duplicate language(mjlt, ). (Entered: 03/30/2007)
390 RESPONSE to Motion re 388 MOTION for Approval of Settlement filed by KNOX COUNTY, DANIEL DAVEY.Reply due by 5/1/2007. (MARCHESI, PETER) (Entered: 04/20/2007)
391 MOTION by DALE DARE.Responses due by 5/11/2007. (STOLT, ROBERT) (Entered: 04/20/2007)
392 MEMORANDUM IN SUPPORT OF 388 MOTION For Final Approval Of Settlement And Award of Attorney Fees by DALE DARE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(STOLT, ROBERT) Modified on 4/23/2007 to reflect this docket entry is a Memorandum in Support of a Motion and Not a Motion For Miscellanous Relief (mjlt, ). (Entered: 04/20/2007)
393 REPLY to Response to Motion re 388 MOTION for Approval of Settlement filed by DALE DARE. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY− TO VIEW REPLY SEE PLEADING NO. 391(mjlt, ) (Entered: 04/23/2007)
NOTICE of Docket Entry Modification regarding 391 MOTION : This docket entry was modified by the Clerk's Office to reflect the incorrect docket entry was used. This pleading is a Reply to Motion for Final Settlement Approval and not a Motion For Miscellaeous Relief. The response

04/23/2007
04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/24/2007 04/24/2007 04/24/2007 04/24/2007 04/25/2007 05/02/2007
05/14/2007

generated within this docket entry was terminated. The Clerk's Office has docketed the Reply To Response To Motion For Approval of Settlement, and is now on the docket as pleading no. 393. (mjlt, ) (Entered: 04/23/2007)
NOTICE of Docket Entry Modification regarding 392 MOTION :This docket entry was modified by the Clerk's Office to reflect this document is a Memorandum in Support of Plaintiffs' Motion For Approval of Settlement and Award of Attorney Fees and not a Motion for Miscellanous Relief. The reponse time generated within this docket entry has been terminated. (mjlt, ) (Entered: 04/23/2007)
394 Minute Entry for proceedings held before Judge GENE CARTER : Motion Hearing held re 388 MOTION for Approval of Settlement filed by DALE DARE. Order to issue (Court Reporter Lori Dunbar) (mjlt, ) (Entered: 04/23/2007)
395 NOTICE/CORRESPONDENCE Re: Disapproved Claims by DALE DARE (STOLT, ROBERT) (Entered: 04/23/2007)
396 NOTICE/CORRESPONDENCE Re: Opt Out List by DALE DARE (STOLT, ROBERT) (Entered: 04/23/2007)
397 NOTICE/CORRESPONDENCE Re: Appeal Deadline Date by DALE DARE (STOLT, ROBERT) (Entered: 04/23/2007)
398 NOTICE/CORRESPONDENCE Re: Generic Denial Notice Letter by DALE DARE (STOLT, ROBERT) (Entered: 04/23/2007)
399 ORDER TO FILE SUPPORT FOR COSTS AND EXPENSES :Material in support of Attorney's Fees (1) due by 5/14/2007. By Judge GENE CARTER. (mjlt, ) (Entered: 04/24/2007)
400 ORDER ON MOTION FOR FINAL APRROVAL OF CLASS SETTLEMENT re: 388 Motion for Approval of Settlement By Judge GENE CARTER. (mjlt, ) (Entered: 04/24/2007)
401 ORDER REQUESTING INFORMATION ON APPEALS OF CLAIM DENIALS By Judge GENE CARTER. (mjlt, ) (Entered: 04/24/2007)
402 NOTICE/CORRESPONDENCE Re: Class Counsel's Response to Order Requesting Information on Appeals of Claim Denials by DALE DARE (STOLT, ROBERT) (Entered: 04/24/2007)
403 ORDER REQUESTING NOTIFICATION OF FINAL DECISION ON APPEALS BY THE CLAIMS ADMINISTRATOR By Judge GENE CARTER. (mjlt, ) (Entered: 04/25/2007)
404 TRANSCRIPT of Proceedings Final Fairness Hearing held on 4/23/07 before Judge Gene Carter. Court Reporter: Lori Dunbar. For a bound copy of this transcript, contact Lori Dunbar at (207) 749−4072.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(DUNBAR, LORI) (Entered: 05/02/2007)
405 SUPPLEMENTAL MEMORANDUM REGARDING SUPPORTING MATERIALS RELATING TO THEIR MOTION FOR ATTORNEY FEES AND COSTS OF LITIGATION AND EXPENSES OF SETTLEMENT ADMINISTRATION 389 by DALE DARE (Attachments: # 1

05/17/2007 05/17/2007
05/18/2007
05/24/2007 05/24/2007 05/25/2007 05/25/2007 05/25/2007 05/30/2007
05/31/2007 06/04/2007
06/05/2007 06/11/2007
06/13/2007 06/15/2007
06/18/2007

Exhibit Attachment to Response)(STOLT, ROBERT) Modified on 5/15/2007 to correct the title of this docket entry (mjlt, ). (Entered: 05/14/2007)
406 BRIEF by DALE DARE. (STOLT, ROBERT) (Entered: 05/17/2007)
407 (Document sealed from public view) SEALED DOCUMENT by DALE DARE, KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibit Dare Claims Administrator letters to claimants)(STOLT, ROBERT) (Entered: 05/17/2007)
408 (Document sealed from public view) SEALED DOCUMENT by DALE DARE, LAURIE TARDIFF, KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibit Revised Denial Letters)(STOLT, ROBERT) (Entered: 05/18/2007)
409 LETTER by Robert J. Stolt to Eloise Vinal (mnw, ) (Entered: 05/25/2007)
410 LETTER by Robert J. Stolt to Steven Clarke (mnw, ) (Entered: 05/25/2007)
411 CUMULATIVE TOTAL OF DISBURSEMENTS FOR LAW OFFICE OF DALE THISTLE (mjlt, ) (Entered: 05/30/2007)
412 LETTER by Steven Clark. (Attachments: # 1 Letter Dated May 14, 2007)(mjlt, ) (Entered: 05/30/2007)
413 LETTER by Elois Vinal. (Attachments: # 1 Letter to Judge Carter# 2 Power of Attorney# 3 Envelope# 4 Letter from Claims Administrator)(mjlt, ) (Entered: 05/30/2007)
414 (Document sealed from public view) SEALED DOCUMENT by DALE DARE, LAURIE TARDIFF, KNOX COUNTY, DANIEL DAVEY. (Attachments: # 1 Exhibit Exhibit A Steven Clarke# 2 Exhibit Exhibit B Adrian Reed)(STOLT, ROBERT) (Entered: 05/30/2007)
415 MOTION For Review by STEVEN CLARKE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(mjlt, ) (Entered: 06/01/2007)
416 (Document sealed from public view) SEALED DOCUMENT by DALE DARE, LAURIE TARDIFF, KNOX COUNTY, DANIEL DAVEY, STEVEN CLARKE. (STOLT, ROBERT) (Entered: 06/04/2007)
417 Rebuttal to the Response of Dare Administrator and Class Counsel over Steven Clarke's Appel by STEVEN CLARKE. (mjlt, ) (Entered: 06/06/2007)
418 NOTICE/CORRESPONDENCE Re: Cy Pres Recommendation by DALE DARE (Attachments: # 1 Exhibit Youth Promise Proposal)(STOLT, ROBERT) (Entered: 06/11/2007)
419 NOTICE/CORRESPONDENCE Re: letter to Judge Carter by DALE DARE (STOLT, ROBERT) (Entered: 06/13/2007)
420 MOTION Permit Dare Claims Administrator to Pay Invoice Out of Settlement Fund by DALE DARE.Responses due by 7/6/2007. (Attachments: # 1 Exhibit Analytics Invoice)(STOLT, ROBERT) (Entered: 06/15/2007)
421 ORDER FOR CLAIMS ADMINISTRATOR TO REEVALUATE CLAIM DENIALS By Judge GENE CARTER. (mjlt, ) (Entered: 06/18/2007)

06/21/2007
06/28/2007 06/29/2007 06/29/2007 07/09/2007 07/09/2007 07/09/2007 07/19/2007 07/19/2007
07/19/2007
07/19/2007

422 (Document sealed from public view) SEALED DOCUMENTre:CLASS COUNSEL'S CERTIFICATION AND REEVALUATION OF DENIED CLAIMS by DALE DARE, LAURIE TARDIFF, KNOX COUNTY, DANIEL DAVEY, STEVEN CLARKE. (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 Exhibit L# 13 Exhibit M# 14 Exhibit N)(STOLT, ROBERT) Modified on 6/22/2007 to remove duplicate language and add the title of the main document(mjlt, ). (Entered: 06/21/2007)
423 LETTER by STEVEN CLARKE. (mjlt, ) (Entered: 06/28/2007)
424 ORDER DENYING APPEAL OF ADRIAN REED re 413 Letter By Judge GENE CARTER. (mjlt, ) (Entered: 06/29/2007)
425 ORDER denying as moot 415 Motion For Review filed by Steven Clarke By Judge GENE CARTER. (mjlt, ) (Entered: 06/29/2007)
426 ORDER ON CLASS COUNSEL'S REQUEST FOR APPROVAL OF REIMBURSEMENT OF EXPENSES OF LITIGATION re: 389 Motion for Attorney Fees By Judge GENE CARTER. (Attachments: # 1 Appendix 1) (mjlt, ) (Entered: 07/09/2007)
427 ORDER granting 420 Motion Permit Dare Claims Administrator to Pay Invoice Out of Settlement Fund By Judge GENE CARTER. (mjlt, ) (Entered: 07/09/2007)
428 ORDER RESERVING RULING on 418 NOTICE/CORRESPONDENCE Re: Cy Pres Recommendation filed by DALE DARE By Judge GENE CARTER. (mjlt, ) (Entered: 07/09/2007)
429 MOTION to Seal by DALE DARE.Responses due by 8/9/2007. (STOLT, ROBERT) Modified on 7/24/2007 to remove the language that the document is not publically available(mjlt, ). (Entered: 07/19/2007)
430 MOTION FOR RECONSIDERATION by DALE DARE.Responses due by 8/9/2007. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4Exhibit D # 5SEALED Exhibit E−1 # 6SEALED Exhibit E−2 )(STOLT, ROBERT) Modified on 7/20/2007 to add description of attachments (mnw, ). Modified on 7/24/2007 to unseal exhibits and reflect Exhibit E−1 and E−2 are sealed (mjlt, ). (Entered: 07/19/2007)
431 ADDITIONAL ATTACHMENTS re 430 Sealed Motion by DALE DARE. (Main Document is Exhibit F) (Attachments: # 1 Exhibit G # 2Exhibit H # 3 Exhibit I # 4 Exhibit J # 5 Exhibit K # 6SEALED Exhibit L)(STOLT, ROBERT) Modified on 7/20/2007 to add description of attachments (mnw, ). Modified on 7/24/2007 to unseal attachments and reflect Exhibit L is sealed(mjlt, ). (Entered: 07/19/2007)
432 ADDITIONAL ATTACHMENTS re 430 Sealed Motion by DALE DARE. (Main Document is SEALED Exhibit M) (Attachments: # 1 Exhibit N # 2 SEALED Exhibit O # 3Exhibit P − notice of photographs on file with the Clerk's Office # 4Exhibit Q # 5Exhibit R − notice of posters on file with the Clerk's Office # 6SEALED Exhibit S − notice of handwritten sheets on file with the Clerk's Office )(STOLT, ROBERT) Modified on 7/20/2007 to add description of attachments (mnw, ). Modified on 7/24/2007to unseal exhibits

07/24/2007 07/24/2007
08/10/2007 08/14/2007 08/17/2007 08/17/2007 08/22/2007
08/23/2007 09/04/2007 10/05/2007 10/05/2007 12/11/2007 12/21/2007 01/02/2008

and to reflect Exhibits M, O and S are sealed (mjlt, ). (Entered: 07/19/2007)
433 ORDER granting in part and denying in part 429 Motion to Seal By Judge GENE CARTER. (mjlt, ) (Entered: 07/24/2007)
434 ORDER DENYING MOTION FOR RECONSIDERATION OF COSTS AND EXPENSES denying 430 Motion for Reconsideration. By Judge GENE CARTER. (mnw, ) Modified on 7/25/2007 to unseal order and make it publicly available (mnw, ). (Entered: 07/24/2007)
435 MOTION for Disbursement of Funds by DALE DARE.Responses due by 8/31/2007. (STOLT, ROBERT) (Entered: 08/10/2007)
436 NOTICE of Hearing: Conference of Counsel set for 8/17/2007 10:00 AM before JUDGE GENE CARTER. (mjlt, ) (Entered: 08/14/2007)
437 Minute Entry for proceedings held before Judge GENE CARTER : Conference of Counsel held. Order to issue (Court Reporter Dennis Ford) (mjlt, ) (Entered: 08/17/2007)
438 ORDER denying 435 MOTION TO AUTHORIZE DARE CLAIMS ADMINISRATOR TO PAY AWARDS OUT OF SETTLEMENT FUNDS By Judge GENE CARTER. (mjlt, ) (Entered: 08/17/2007)
439 TRANSCRIPT of Proceedings Chambers Conference held on 8−17−07 before Judge Gene Carter. Court Reporter: Dennis R. Ford. For a bound copy of this transcript, contact Dennis R. Ford at 207−831−8056.
NOTICE: −− Transcripts are NOT remotely electronically available via PACER at this time.
(FORD, DENNIS) (Entered: 08/22/2007)
440 MOTION for Judgment by DALE DARE.Responses due by 9/13/2007. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(STOLT, ROBERT) (Entered: 08/23/2007)
441 JUDGMENT By Judge GENE CARTER. (mjlt, ) (Entered: 09/04/2007)
442 MOTION Motion to Lift Stay by DALE DARE.Responses due by 10/26/2007. (Attachments: # 1 Settlement Fund Acct. Summary# 2 Proposed Order)(STOLT, ROBERT) (Entered: 10/05/2007)
443 ORDER granting 442 Motion to Lift Stay − "GRANTED. The Claims Administrator shall forthwith make the distributions as approved in the Court's Judgment of 9/4/07." By Judge GENE CARTER. (mnw, ) (Entered: 10/05/2007)
444 ORDER ON FINAL REPORT OF SETTLEMENT :( Accounting by the Claims Administrator(1) due by 12/31/2007.) By JUDGE GENE CARTER. (mjlt) (Entered: 12/11/2007)
445 NOTICE/CORRESPONDENCE Re: Final Report and Accounting by DALE DARE (Attachments: # 1 Exhibit Analytics, Inc. Accounting)(STOLT, ROBERT) (Entered: 12/21/2007)
446 ORDER ON SETTING ACCOUNTING re: Copies of the state and/or federal tax filings made that support the payment of

01/04/2008
01/10/2008 01/17/2008
01/30/2008 05/15/2008

$11,663.00 in taxes due by 1/11/2008. By JUDGE GENE CARTER. (mjlt) (Entered: 01/03/2008)
447 NOTICE/CORRESPONDENCE Re: RESPONSE TO ORDER ON SETTLEMENT ACCOUNTING by DALE DARE (Attachments: # 1 Exhibit Federal Tax Form, # 2 Exhibit State Form)(STOLT, ROBERT) (Entered: 01/04/2008)
448 ORDER FOR DISBURSEMENT OF CY PRES By JUDGE GENE CARTER. (mjlt) (Entered: 01/11/2008)
449 NOTICE/CORRESPONDENCE Re: Cy Pres Report, Accounting and Payment by DALE DARE (Attachments: # 1 Exhibit Campaign for Justice)(STOLT, ROBERT) (Entered: 01/17/2008)
450 Cy Pres Monie received by the 2008 Campaign for Justice (mjlt) (Entered: 01/30/2008)
451 LETTER from Robert Stolt (lrc) (Entered: 05/16/2008)

 
 Ocean 'Way Community, Inc.
78 ~13eec1i1lJ{loc£ Street
fJIiomastctn, :U'E 04861
Oct 6thth 2006
Dear Judge Carter &Judge George Singal: Iam not in agreement with this form being submitted for the lawsuit ( 36 page settlement
dated Oct 3rd. 2006) settlement for Knox County Jail. Civil Action ## 02-251-P-C I have asked Bob to change it and he has said -I will not do this·
My damages far exceed what is being requested for the emotional damages alone in this suit for the last 5.5 years. They not only stripped me, touched my breasts and did a cavity search as well. This took place when there were male guards and inmates walking by during my strip search. Please see exhibit A for more specific damages as well.
I have asked that Bob change this settlement form to $500.000.00 for me. I also have requested that he keep the decertification and I could go individually as well. My damages are endless, not to mention the ongOing therapy I will need for long term emotional healing after this case. The $50,000.00 does not begin to cover it. I do realize the $50.000.00 payout is for being the class rep, but I am unlcear as to me signing off completely when my personal damages far exceed this amount. I am prepared to have ajury trial to determine these damages. Please see a letter attached for my prosposed damages as well. I realize this case is simular to Neilson vs York, however this has been 5.5 years of my life. When I originally signed the contract with attorneys they were all representing me alone, not a class.
I would like to say that I am not in agreement of the settlement letter on Sept 29th when I met with the defense attorneys and plantiffs attorneys with Judge Singal. I initially signed this off but with an assumption that my 19a1 reps would make sure that part of that settlement would cover my damages. At this time I am not signing off in this settlement until there is an agreement in place for my monetary damages individually as well as the class representative. I am asking that I have a conferece with you Judge Carter and Judge Singal in private chambers. Is this possible1 My number is 354-8184 or pager 207-851-5323.
My attorneys in this suit have refused to speak with me since Wed Oct 4th. I have asked for a meeting with them as well and also sent them an e-mail explaining that I want to weigh my options to perhaps opt out of the class and pursue this individually since we have already won summaryjudgement in my time frame. Please see attached e-mail to BOb Stolt and Dale Thistle.
CJ Laurie L Tardiff
C.C. File Federal Court;Judge Carter

Pfione/:ra~ 354-8184

•

Cell: 671-0291

•

X-mail: forifoopa@verizon.net

 
 UNITED STATES DISTRICT COURT District of Maine

LAURIE TARDIFF, individually, and

)

on behalf of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

KNOX COUNTY, et al.,

)

)

Defenda

nts.

)

Civil No. 02-251-P-C

ORDER OF PERMANENT INJUNCTION This Order of Permanent Injunction is entered by this Court as part of and in furtherance of the claims raised in Laurie Tardiff vs. Knox County, et al, Civil No. 02251-P-C. This permanent injunction incorporates the Final Settlement Agreement signed by the parties and approved by this Court on October _____, 2006, all documents incorporated therein. Wherefore, it is hereby ORDERED, that: Knox County, its officials, officers, employees and others working in concert with them are forever enjoined and restrained from conducting or performing a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion on any individual being held at the Knox County Jail: (1) After having been arrested on charges that did not involve a weapon, drugs,
or a violent felony; or

(2) While waiting for bail to be set on charges that did not involve a weapon, drugs or a violent felony; or
(3) While waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) Having been arrested on a default or other warrant that did not involve a weapon, drugs or a violent felony.
SO ORDERED Dated this ______ day of October, 2006.
__________________________ Gene Carter, Judge, United States District Court

 
 W E L C O M E - In re Dare v. Knox County Strip Search Litigation Home Page

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Welcome to the Knox County Litigation Settlement Home Page.
You could get a payment from a $3 million dollar class action settlement if you meet all of the following conditions:
1. You were held at the Knox County Jail during the period November 19, 1996 to December 31, 2004.
2. You were held at the Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs, weapons or a violent felony.
4. You were strip searched without evaluation to determine if there was a reason to suspect possession of hidden contraband.
A strip search process is one in which you were required to remove all of your clothes while a corrections officer inspected and viewed your naked body. In some cases, the officer may have required you to either squat cough and open your mouth or expose your body cavity while a corrections officer inspected and viewed your naked body.
You may obtain additional details by reviewing the Settlement Agreement, the Notice of Hearing and Proposed Class Action Settlement, Claim Form, and Opt Out/Exclusion Form, or by clicking on Case Documents.
Note: This website is provided as a service to potential class members. The information provided is in summary form and is not intended as a complete explanation of your rights. For full and complete information, you are directed to review carefully the Notice of Pendency of Class Action and Proposed Settlement.
Home | Status | Case Documents | FAQ | Contact Us

http://www.knoxcountyjailclass.com/index.html

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In re Dare v. Knox County Strip Search Litigation - FAQ

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> Frequently Asked Questions
This page provides the answers to class members' most frequently asked questions.
The information provided is in summary form and is not intended as a complete explanation of your rights. For full and complete information, you are directed to review carefully the Notice of Pendency of Class Action and Proposed Settlement.
Am I being sued? Why did I get this notice? What is a Class Action and who are Class Members? How do I know if I am a Class Member and part of the Settlement? What if I was at the jail on or before November 18, 1996 or after December 31, 2004? How do I opt out if I don’t want to be a member of the class? How much will my payment be? How can I get a payment? When will I get my payment? Will I have to pay taxes on my payment? What is a Fairness Hearing? When and where is the hearing? Do I have to come to the hearing? May I or my lawyer speak at the hearing? What if I think the proposed settlement is not fair? What can I do? Who are the lawyers in this case? How can I obtain additional information on the case?
Top Q: Am I being sued? A: No, you are not being sued.
Top Q: Why did I get this notice? A: If you received a notice, records show that you may be a class member. To see if you qualify, you must submit a complete Settlement Claim Form, postmarked by February 12, 2007.
Top Q: What is a Class Action and who are Class Members? A: In a class action, one or more people, called Class Representatives (in this case, Dale Dare), sued on behalf of all people who have similar claims. All of the people who were similarly treated are known as the Class or Class Members. One court resolves the issues for all Class Members.
Top Q: How do I know if I am a Class Member and part of the Settlement?

http://www.knoxcountyjailclass.com/faq.html

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In re Dare v. Knox County Strip Search Litigation - FAQ

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A: The Court has ruled that you are a Class Member if you meet all four factors below:
1. You were held at the Knox County Jail after November 19, 1996 and before December 31, 2004.
2. You were held at Knox County Jail after an arrest but before a bail hearing or first court appearance. This includes arrests on default and other warrants.
3. You were not charged with a crime involving drugs or weapons or a violent felony.
4. You were strip searched before a first court appearance or while awaiting bail.
The following crimes are violent felonies: aggravated assault, arson, assault on an officer, criminal restraint, elevated aggravated assault, gross sexual assault, kidnapping, manslaughter, murder, rape, and robbery. This list is nonexclusive, and other felony level crimes may be determined to be “violent”.
NOTE: You are not a class member if you were either (1) strip searched while you were serving a sentence, (2) you were strip searched after an evaluation which determined there was reason to suspect possession of hidden contraband, or (3) you were arrested for and/or charged with a crime involving drugs, weapons or a violent felony.
Top Q: What if I was at the jail on or before November 18, 1996 or after December 31, 2004?
A: The most serious charge for an arrest will determine your class membership. If any one of the charges was a crime involving weapons or drugs or was a violent felony, you are not a class member for that arrest. You might be eligible for another arrest.
Top Q: How do I opt out if I don’t want to be a member of the class?
A: If you wish to opt out of this class action to pursue your own claim against Knox County, you may do so by completing an “OPT OUT/EXCLUSION FORM” and submitting it on or before February 12, 2007 to the Dare Claims Administrator, P.O. Box 2006, Chanhassen, MN 55317-2006. You can obtain an Opt Out/ Exclusion form from the Claims Administrator at the above address, by calling the Claims Administrator toll free at 1-877797-5732 or by downloading an Opt Out/Exclusion form. To be valid, the form must be postmarked by February 12, 2007.
Top Q: How much will my payment be?
A: We do not know the amount of the payments. If you are eligible you will get a payment for only one strip search. The amount will depend on how many people submit claim forms. The amount per person will decrease as the number of forms submitted increases. Each participating person will receive an equal amount.
Top Q: How can I get a payment?
A: You must fill out the Settlement Claim Form completely and mail it to the Claims Administrator. The envelope must be postmarked no later than February 12, 2007; if it is not, your claim will be denied.

http://www.knoxcountyjailclass.com/faq.html

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The settlement check will be written in your name with your social security number. Your check will be sent to your mailing address. If you move, you must notify the Claims Administrator in writing of your new address or the check will be sent to your old address.
Top Q: When will I get my payment?
A: You cannot be paid until the settlement is approved by the Court and any appeals are over. The Court will hold a hearing at 10:00 a.m. on April 23, 2007, to decide whether to approve the settlement. If the Court approves the settlement and all appeals are completed promptly, you should receive your settlement check by June 1, 2007, unless there are any unforeseen delays.
Top Q: Will I have to pay taxes on my payment?
A: You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Claims Administrator will send you a 1099 Form. (If you have questions about backup withholding, Form W-9 or Form 1099, call your tax preparer or the IRS Information Reporting Program Customer Service Section, toll free at (866) 455-7438, 8:30 am to 4:30 p.m., Monday through Friday.)
Top Q: What is a Fairness Hearing?
A: The Court will hold a hearing to decide whether to approve the settlement. The Court will consider whether the settlement is fair, reasonable and adequate. The Court will also decide whether to approve the request for attorney’s fees, costs, expenses and the bonuses to class representatives. If the Court approves the proposed settlement, it will affect all class members.
Top Q: When and where is the hearing?
A: The Hearing will be held on April 23, 2007 at 10:00 a.m. in the U.S. District Court of Maine, 156 Federal Street, Portland, ME.
Top Q: Do I have to come to the hearing?
A: Class counsel will answer any questions the Court may have. You are welcome to come at your own expense. If you object to the settlement and you want to explain the objection to the Court you can attend the hearing or hire your own lawyer to attend for you.
Top Q: May I or my lawyer speak at the hearing?
A: Yes, but only if you or your lawyer filed a written objection before the hearing.
Top Q: What if I think the proposed settlement is not fair? What can I do?
A: If you wish to object to the proposed settlement, you must state your objections to the Court in a letter sent to the Dare Settlement Claims Administrator, postmarked by February 12, 2007. The Claims Administrator will forward your objection to the Court and to the lawyers for the plaintiffs and for Knox County. If you want to explain the written objection to the court you, or a lawyer on your behalf, can appear in the U.S. District Court of Maine, 156 Federal Street, Portland, ME on April 23, 2007 at 10:00 a.m. to present your objections.
You may object to the proposed settlement and still be eligible to

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4/27/2007

In re Dare v. Knox County Strip Search Litigation - FAQ

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receive a payment. You must submit a valid Settlement Claim Form even if you object to the settlement, if you wish to claim money should the settlement be approved.
Top Q: Who are the lawyers in this case?
A: The lawyers for the plaintiffs are:
Lipman, Katz & McKee Robert Stolt, Esq., Sumner Lipman, Esq. 227 Water Street P.O. Box 1051 Augusta, ME 04332-1051
Dale Thistle, Esq. 103 Main Street P.O. Box 160 Newport, ME 04953
Defendant Knox County is represented by:
Wheeler and Arey, P.A. Peter Marchesi 27 Temple Street PO Box 376 Waterville, ME 04901
Monaghan Leahy LLP John J. Wall, III 95 Exchange Street PO Box 7046 Portland, ME 04112-7046
Sheriff Daniel Davey is represented by:
McCloskey, Mina & Cunniff, LLC George T. Dilworth, Esq. 12 City Center Portland, ME 04101
Top Q: How can I obtain additional information on the case?
A: If you wish to view the Court file or a copy of the proposed settlement agreement, you may go to the Clerk of the U.S. District Court of Maine, 156 Federal Street, Portland, ME during regular business hours.

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4/27/2007

 
 365 F.3d 1 (2004)
Laurie TARDIFF, Plaintiff, Appellee, v.
KNOX COUNTY, Daniel Davey, Defendants, Appellants. Michele Nilsen, et al. Plaintiffs, Appellees v. York County, Defendant, Appellant.
Nos. 04-1065, 04-1165.
United States Court of Appeals, First Circuit.
Heard March 1, 2004. Decided April 9, 2004.
Peter T. Marchesi with whom Wheeler & Arey, P.A., John J. Wall, III, and Monaghan Leahy, LLP were on brief for appellants Knox County, Daniel Davey and York County.
Robert J. Stolt with whom Sumner H. Lipman, Lipman, Katz & McKee, P.A., Dale Thistle, Law Office of Dale Thistle and Frank DiPrima were on brief for appellee Laurie Tardiff.
2 *2 Robert J. Stolt for appellees Michele Nilsen, et al.
Howard Friedman, J. Lizette Richards, Law Offices of Howard Friedman, P.C., David G. Webbert and Johnson & Webbert, L.L.P. on brief for appellees Michele Nilsen, et al.
James R. Pingeon, Massachusetts Correctional Legal Services, Inc., Deborah M. Golden, D.C. Prisoners' Legal Services Project, and William Claiborne on brief for Massachusetts Correctional Legal Services, and D.C. Prisoners' Legal Services Project, Amici Curiae.
Christina R.L. Norris, Donna A. Schneiter and Sarah Wunsch, American Civil Liberties Union of Massachusetts, on brief for American Civil Liberties Union of Massachusetts, Amicus Curiae.
Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.
BOUDIN, Chief Judge.
Before us are orders certifying class actions in two jailhouse strip search cases. The two cases, arising before two different judges in the same court (Judges Carter and Hornby), are targeted at two different Maine counties (Knox and York). In each case, a named plaintiff seeks to represent others who (it is alleged) were improperly strip searched. Following certification of the classes, we allowed interlocutory appeals and now affirm.
Over the last few decades, a changed popular sensibility has produced a series of decisions curtailing what was once an apparently routine practice in many jails of strip searching arrestees not yet convicted of any crime.[1] Such cases have included, or brought in their wake, lawsuits by those who were searched seeking damages from officials or governmental entities responsible for the searches. E.g., Miller v. Kennebec County, 219 F.3d 8, 12-13 (1st Cir.2000). These suits are ordinarily framed as Fourth Amendment claims for unconstitutional search and seizure and brought under 42 U.S.C. § 1983 (2000). Id.
Qualified immunity has defeated some of these claims against officials, e.g., Savard v. Rhode Island, 338 F.3d 23, 33 (1st Cir.2003) (en banc), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004), but the doctrine does not protect counties, see Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Though not liable under a respondeat superior theory, Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), counties and like entities may be liable under section 1983 not only for their formal official acts and policies, but also, under some circumstances, for practices

"so permanent and well settled" as to constitute established custom. Monell v. Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
In the first case before us 0907 brought against Knox County, its sheriff, and unidentified officers 0907 Laurie Tardiff filed such a section 1983 claim, asserting that she had been arrested for witness tampering after having been previously charged with violating an anti-harassment order. Tardiff v. Knox County, 218 F.R.D. 332, 334 3 (D.Me.2003). At the jail house, Tardiff *3 alleged that she was taken to a shower area, ordered by a female corrections officer to disrobe, and required to "squat and cough" while the officer could see her vagina and anal area. Id.
Judge Carter, presiding in the case, called this a "strip and visual body cavity search," Tardiff, 218 F.R.D. at 334; Judge Hornby, faced with a similar description by the lead plaintiff in a parallel suit against York County, called the same thing a "strip search," Nilsen v. York County, 219 F.R.D. 19, 22, 25 (D.Me.2003). For simplicity's sake, we use "strip search" in this decision to cover the described conduct, recognizing that the phrase is used variously in different decisions and that there is a spectrum of possible search practices inflicting differing indignities. Just what happened to Tardiff and others may itself be disputed.
Tardiff sought to represent a class of persons similarly situated and in due course Judge Carter certified a class under Fed.R.Civ.P. 23(b)(3). Tardiff, 218 F.R.D. at 336. The class, as defined by the court, covered:
All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:
(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or
(2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or
(3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or
(4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.
Id.
In the second case, brought before Judge Hornby, a substitute lead plaintiff 0907 Michael Goodrich 0907 was arrested for failing to report for probation and (he alleges) was strip searched with the same strip, squat and cough procedure as Tardiff. Nilsen 219 F.R.D. at 22. Like Tardiff, he alleged that this was done in accordance with a policy or custom of the county that was applied widely to arrestees including those charged with unthreatening offenses. Judge Hornby, acting shortly after Judge Carter, entered a comparable order certifying a class under Rule 23(b)(3). Id. at 19-20.[2]
In each case, the defendants sought interlocutory review of the class certification. We have discretion as to whether to entertain such an appeal. See Fed.R.Civ.P. 23(f) and 1998 advisory committee's note to subdivision (f). One reason for review is a threat of liability so large as to place on the defendant an "irresistible pressure to settle." Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir.2000). Although we thought it quite possible that the certification orders would survive review, the financial and similar information provided by the two counties in this case persuaded us to grant interlocutory review, which we expedited.
4 *4 Nominally, review of decisions granting or denying class certification is for "abuse of discretion," Smilow v. S.W. Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir.2003), but this chameleon phrase is misleading. Express standards for certification are contained in Rule 23, so an appeal can pose pure issues of law reviewed de novo

or occasionally raw fact findings that are rarely disturbed. See id. Here, we are concerned with applying general standards to particular facts where the touchstone is "reasonableness" and review is deferential.[3]

All class actions certified under Rule 23 must meet certain prerequisites listed in subsection (a): there must be numerosity of class members, common questions of law or fact, the representative must be typical of the class, and his or her representation of the class must be adequate. Fed.R.Civ.P. 23(a). Here, these preconditions are admittedly satisfied. The defendants' attack is instead on the further requirement, for a(b)(3) class, that the court find that common questions "predominate" over individual ones and that the class action be "superior" to other methods of resolving the controversy. Fed.R.Civ.P. 23(b)(3).

Subsection (b)(3), the cute tiger cub that has grown into something unexpectedly fearsome in civil rights and mass tort litigation, is a joinder device for consolidating separate but similar claims 0907 as opposed, for example, to disputes about a common fund, which is covered by subsection (b)(1)(B). The subsection lists non-exclusive factors for making the determination 0907 the most pertinent here is manageability 0907 but the "predominance" and "superiority" labels turn largely on the particular facts and issues presented. Some courts have allowed strip search class actions and others not.[4]

What here are the issues? The principal ones 0907 and this is our own very rough cut 0907 appear to be these: what rule, policy or custom as to strip searches was in force in each county during the periods in question; was it lawful as applied to groups or individual class members; if unlawful as to some categories of arrestees, were there still facts as to particular arrestees that justified a strip search; and if liability exists, what are the damages to each person injured? There are obviously other issues (e.g., as to individual defendants); but these four are likely the most important.

On the first issue 0907 what rules, policies or customs prevailed 0907 there is already deep disagreement between

plaintiffs and defendants. So the question arises whose version is a court to assume for purposes of deciding

whether a class action is even suitable? It is sometimes taken for granted that the complaint's allegations are

necessarily controlling; but class action machinery is expensive and in our view a court has the power to test

5

disputed premises early on if and when the class action *5 would be proper on one premise but not another.[5]

In this case, whether there was a rule, policy or custom of automatically strip searching all or most categories of arrestees is on its face a common disputed issue 0907 as both sides concede. Nothing here obliged the district courts to do more than view the issue as such and, so viewed, it weighs in favor of class action status. The issue is like any other common predicate to liability for multiple parallel claims 0907 say whether the train engineer was negligent (or acting within the scope of his employment) when the train went off the rails. See, e.g., Am. Trading & Prod. Corp. v. Fischbach & Moore, Inc., 47 F.R.D. 155, 157 (N.D.Ill.1969).

The second issue, whether the strip search policy is unlawful, presents different complications. The first is that it might be lawful as to some groups of arrestees (say, those arrested on firearm felony charges) and not others (say, those seized for non-payment of parking tickets). Both district courts sought to narrow the potential multiplicity of categories 0907 which could in several respects work against class status 0907 by narrowing the class. In both orders, the class definition excluded those arrested for drugs, weapons or violent felonies 0907 categories for which automatic strip searches might seem easier to defend. Nilsen, 219 F.R.D. at 25; Tardiff, 218 F.R.D. at 336.

Of course, the defendants might still persuade the court that some within the remaining group of arrestees (e.g., those arrested for misdemeanors of certain types) could also be strip searched as a matter of course. But the core notion that some classes of arrestees should not be strip searched without particularized suspicion is now embedded in the case law.[6] Just what groups within the class can or cannot be searched without such suspicion appears, like the rule-policy-custom question, to present a common set of issues proper for a class action.

Turning to the third of the issues we listed, defendants say that individualized suspicion may have existed as to anyone within the certified class, so that every class member necessarily presents a different problem even as to liability. True, a class member arrested for the most minor and non-violent of offenses might arguably warrant a

strip search by his individual behavior (violently resisting arrest) or prior record (armed assaults). If such an individual evaluation were necessary in every case, this might doom an efficient class action.
Both district courts sought to finesse the issue by defining the class to include only those who were searched 6 without evaluation for individualized suspicion. Nilsen, 219 F.R.D. at 25 ("without evaluating for *6 individualized
reasonable suspicion"); Tardiff, 218 F.R.D. at 336 ("without evaluation for individualized reasonable suspicion"). This is not a complete answer; for one thing, at some point in the case it could still be necessary to determine individually who among those who were searched were so evaluated.
Further, even if all persons searched based on individual evaluations were readily excluded from the class regardless of the soundness of the evaluation, it might still be necessary 0907 at least in some cases 0907 to consider whether individualized suspicion could have justified a search. Even if overbroad categories were used, the defendants will likely argue that the result would have been the same for some class members even if proper individualized judgments had been made 0907 raising a legal issue as to liability on which we offer no opinion. Compare 42 U.S.C. § 2000e-5(g)(2)(B) (2000) (Title VII's same decision defense as to damages). If the number of such instances was large, the feasibility of a class action might be compromised.
Without prejudging disputable issues, we think that such threats of undue complications as to liability are limited in this case. If there was in fact a rule, custom or policy of strip searching every arrestee or a substantially overlarge category, then it is a fair guess that most arrestees so classed were strip searched on this basis. There might yet be some number as to whom defensible individual judgments to strip search were actually made or could have been made 0907 two different situations with different legal implications; but whoever has the burden of identifying such persons, they may well not be numerous.[7]
Determinations to certify a class depend on initial prediction and are always subject to revision. Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Smilow, 323 F.3d at 39-40; Mowbray, 208 F.3d at 297 n. 6. If a large number of class members turn out to present non-common issues as to liability, the court may have to consider narrowing or de-certifying the class. Mowbray, 208 F.3d at 297 n. 2. But a court can proceed based on its reasonable best guess as to what will happen and we share the district judges' apparent view that the individualized-suspicion issue will arise only in a limited number of cases, assuming always that plaintiffs can establish as a background fact the existence of an improperly broad strip search rule, policy or custom.
By contrast, the presence of damage claims does weigh against class status. In certain cases (e.g., some security frauds), formula damages are generally used. See 3 Conte & Newberg, Newberg on Class Actions § 10:8 (4th ed.2002). Here each class member wrongly strip searched could in principle testify separately as to the circumstances, emotional damage, lost wages, medical treatment, doctor bills, and so on. Indeed, the less potent the available defense on liability, the more the class action might look like a bundle of individualized damage claims wholly unsuited for class resolution.
Yet the need for individualized damage decisions does not ordinarily defeat predominance where there are still disputed common issues as to liability. Smilow, 323 F.3d at 40. If the class action resolved liability even as to 7 some further narrowed *7 class, this would be a legitimate function. At that point, the court would have further options, such as an agreement on modest uniform damages for those not claiming special injury, with masters to determine the (potentially few) serious claims to special injury. E.g., In re Corrugated Container Antitrust Litig., 80 F.R.D. 244 (S.D.Tex.1978).
Failing some practical solution allowing full resolution of all class damage claims in a single case, the court could enter a judgment of liability, leaving class members to pursue damage claims in separate law suits. Smilow, 323 F.3d at 40-41; accord. Blihovde v. St. Croix County, 219 F.R.D. 607, 621 (W.D.Wis.2003); Maneely v. City of Newburgh, 208 F.R.D. 69, 79 (S.D.N.Y.2002) (strip search cases). In addition, if and when liability is established and the remaining dispute is only the amount of damages, it is common experience that a great many claims settle.
It remains to discuss the superiority vel non of the class action. The counties insist that individual law suits are feasible. We think that only the limited number of cases where serious damage ensued would ever be brought

without class status and that the vast majority of claims would never be brought unless aggregated because provable actual damages are too small. This is a conventional argument for a class action, Amchem Prods., Inc., v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and it applies here.
Whether the law should encourage the bringing of very small claims that would otherwise not be brought is a different matter; law suits serve purposes beyond compensation, and the balance of cost and benefit doubtless varies from case to case. It is enough for the superiority determination here that for most strip search claimants, class status here is not only the superior means, but probably the only feasible one (one-way collateral estoppel aside), to establish liability and perhaps damages. E.g., Blihovde, 219 F.R.D. at 622; Mack v. Suffolk County, 191 F.R.D. 16, 25 (D.Mass.2000).
It follows that the orders certifying the class actions must be sustained at this initial stage without prejudice to their further alteration. In further proceedings in the district court, little weight should be given to our own glancing discussion of the merits; although necessary background in reviewing the certification orders, our assessment can only be preliminary, lacking the benefit of a fuller record and analyses yet to come.
Affirmed.
[1] The trend began with the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In this circuit, the leading cases are Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57 (1st Cir.2003); Miller v. Kennebec County, 219 F.3d 8 (1st Cir.2000); Swain v. Spinney, 117 F.3d 1 (1st Cir.1997).
[2] Judge Hornby's order, Nilsen, 219 F.R.D. at 25, defines the class as:
All people strip-searched at the York County Jail after October 14, 1996 under a policy or custom of conducting strip-searches without evaluating for individualized reasonable suspicion: (1) while waiting for bail to be set or for a first court appearance after being arrested on charges that did not involve a weapon or drugs or a violent felony; or (2) while waiting for a first court appearance after being arrested on a default or other warrant.
[3] Cf. Stanton v. Berkshire Reg'l Sch. Dist., 197 F.3d 574, 577 (1st Cir.1999) (attorneys' fees under IDEA); Mass. Food Ass'n v. Mass. Alcoholic Beverages Control Comm'n, 197 F.3d 560, 567 (1st Cir.1999) (adequacy of representation under Fed.R.Civ.P. 24(a)).
[4] Compare Blihovde v. St. Croix County, 219 F.R.D. 607, 622 (W.D.Wis.2003), Bynum v. District of Columbia, 217 F.R.D. 43, 50 (D.D.C.2003), Maneely v. City of Newburgh, 208 F.R.D. 69, 76-79 (S.D.N.Y.2002), Mack v. Suffolk County, 191 F.R.D. 16, 25 (D.Mass.2000), and Smith v. Montgomery County, 573 F.Supp. 604, 613 (D.Md.1983)(all certifying strip search class actions), with Klein v. DuPage County, 119 F.R.D. 29, 31-32 (N.D.Ill.1988)(denying certification for strip search class action). There are also several unpublished opinions coming out both ways.
[5] Compare Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)(discouraging any preliminary inquiry), with Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)(endorsing such an inquiry). The circuits are also divided. Compare Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291-93 (2d Cir.1999), and J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n. 7 (10th Cir.1999), with Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 186-89 (3d Cir.2001), and Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 348, 151 L.Ed.2d 263 (2001).
[6] See Miller, 219 F.3d at 12; Swain, 117 F.3d at 12. If anything, some of the rhetoric might lead the reader to believe, quite wrongly, that every arrestee must be independently evaluated based on his or her own circumstances. In reality, generalizations lie behind most so-called individual decisions and to endorse the generalization is, in substance, to endorse some categorical rules. See Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir.2001).
[7] A number of district courts say that the burden of identification is on the defendant, e.g., Blihovde, 219 F.R.D. at 622; Mack, 191 F.R.D. at 24; see also Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)(Title VII), but the various burden issues have not been briefed in this case, and we do not resolve them.

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