UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

:

PHYLLIS A. MITCHELL,

:

both individually and on behalf of a class of :

others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF CLINTON,

:

DAVID FAVRO,

:

both individually and in his

:

official capacity as Sheriff of the County of :

Clinton, JERRY MAGGY, both

:

individually and as Undersheriff of the :

County of Clinton, and MICHAEL

:

SMITH, both individually and as

:

Major in the Clinton County Sheriff’s

:

Department,

:

:

Defendants.

:

____________________________________:

Civil Action Number CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendants of rights

secured to the Plaintiffs and proposed Class by the United States Constitution and the

laws of the United States of America. For at least the past several years, the Clinton

County Sheriff’s Department has had a policy of strip-searching all individuals who enter

the Clinton County Jail and are placed in jail clothing, regardless of the crime upon which

they are charged. Upon information and belief, this policy is, in part, derived from the

written procedures of the Clinton County Sheriff’s Department, and was promulgated by

senior Department officials; specifically, Defendants David Favro, Jerry Maggy and

Michael Smith.

1

It has been well established in this judicial circuit for many years that individuals charged with misdemeanors or violations cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In fact, several judges in this Judicial District, as well as the United States Court of Appeals for the Second Circuit, have recently held that blanket strip search policies/practices like those in dispute in this case are unconstitutional. In short, the policy of Clinton County and the Clinton County Sheriff’s Department to forcing those charged with minor crimes to undergo the indignities of a strip search upon entry into the Clinton County Jail is not only clearly illegal, but is degrading, insensitive and unnecessary.
Phyllis Mitchell brings this action on behalf of herself, and on behalf of a class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of her civil rights and those of the class members she proposes to represent. Ms. Mitchell was charged with several unclassified Agricultural & Markets Law misdemeanors for not feeding her dogs, and was subjected to a strip search, in violation of their right against unreasonable searches under the Fourth Amendment of the United States Constitution. She seeks monetary damages for herself and each member of the proposed class, a declaration that the Sheriff’s Department’s policies/practices are unconstitutional, and an injunction precluding Clinton County and the Clinton County Sheriff’s Department from continuing to violate the rights of those placed into their custody. With this as a background, Plaintiff Phyllis Mitchell, through counsel, hereby complains as follows:
2

JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. 2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES 3. Plaintiff Phyllis A. Mitchell (“Mitchell”) is 47 years old and resides in Clinton County, New York. On or about March 27, 2003, Mitchell was arrested and placed in the Clinton County Jail on charges of Abandonment of Animals, Failure to Provide Proper Sustenance (two counts), and Failure to Provide Proper Food and Drink, all misdemeanors under New York’s Agricultural and Markets Law. Ms. Mitchell was also charged with the violation of having an unlicensed dog. 4. Defendant County of Clinton (the “County”) is a county government organized and existing under the laws of the State of New York. At all times relevant hereto, the County, acting through its Sheriff’s Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to
3

the Clinton County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the Clinton County Jail. In addition, at all relevant times, the County was responsible for enforcing the rules of the Clinton County Jail, and for ensuring that Sheriff’s Department personnel employed in the Jail obey the Constitution and laws of the United States and of the State of New York.
5. The Clinton County Sheriff’s Department (the “Sheriff’s Department”) is a County Sheriff’s Department organized and existing under the laws of the State of New York. Although not a legal entity for the purposes of litigation, the Department is listed as a party for the purposes of identification. At all times relevant hereto, the Sheriff’s Department was responsible for operating, organizing, overseeing and administering the Clinton County Jail (“CCJ”). At all times relevant hereto, Defendant Sheriff’s Department, together with the County of Clinton, was responsible for the polices, practices, supervision, implementation and conduct of all matters pertaining to the CCJ, and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the CCJ. In addition, at all times relevant hereto, Defendant Sheriff’s Department, together with the County of Clinton, was responsible for enforcing the rules of the Clinton County Jail, and for ensuring that Sheriff’s Department personnel employed in the CCJ obeyed the Constitution and laws of the United States and of the State of New York.
6. Defendant David Favro (“Sheriff Favro”) is the duly elected Sheriff of Clinton County, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the CCJ exercises custodial or other control. Sheriff Favro’s
4

principal place of business is 25 McCarthy Drive, Plattsburgh, NY 12901. Sheriff Favro is made a Defendant in this action in both his individual and official capacities.
7. Defendant Jerry Maggy (“Undersheriff Maggy”) is the duly appointed Undersheriff of Clinton County and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the CCJ exercises custodial or other control. Undersheriff Maggy’s principal place of business is 25 McCarthy Drive, Plattsburgh, NY 12901. Undersheriff Maggy is made a Defendant in this action in both his individual and official capacities.
8. Defendant Michael Smith (“Major Smith”) is the duly appointed Major of the Clinton County Sheriff’s Department and is the officer in charge of the operation of the Clinton County Jail. As such, Major Smith is a policy maker with respect to the treatment of pre-trial and other detainees over which the CCJ exercises custodial or other control. Major Smith’s principal place of business is 25 McCarthy Drive, Plattsburgh, NY 12901. Major Smith is made a Defendant in this action in both his individual and official capacities.
9. Collectively, Sheriff Favro, Undersheriff Maggy, and Major Smith will be referred to as the “Policy Making Defendants.”
5

CLASS ACTION ALLEGATIONS
10. Plaintiff brings this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of
the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly
situated individuals who were charged with misdemeanors or minor crimes and were strip
searched upon their entry into the Clinton County Jail.
11. The class that Plaintiff seeks to represent is defined as follows:
All persons who have been or will be placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton. The class period commences on February 28, 2003 and extends to the date on which the Clinton County Sheriff’s Department and/or the County of Clinton are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
12. This action has been brought and may properly be maintained as a class action
under Federal law and satisfies the numerosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
13. The members of the class are so numerous as to render joinder impracticable.
Upon information and belief, there are hundreds of people arrested for misdemeanors and
violations who are placed into the custody of the Clinton County Jail every month – all of
whom are members of the proposed class. Upon information and belief, the size of the
proposed class totals at least 2,000 individuals, some of whom have had their civil rights
violated on multiple occasions.
6

14. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of class members and the fact that class members are likely dispersed over a large geographical area, with some members presently residing outside of Clinton County and this Judicial District. Furthermore, upon information and belief, many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
15. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches violated by Defendants’ conducting strip searches absent particularized suspicion. All members of the class were charged with misdemeanors or violations when placed into the custody of the Clinton County Jail, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
16. Plaintiff’s claims are typical of the claims of the members of the Class. Plaintiff and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the class members.
17. The representative Plaintiff has the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are adverse to the interests of the members of the Class.
18. Plaintiff has retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. The named Plaintiff is being represented by Elmer Robert Keach, III; Bruce Menken and Jason Rozger of Berenbaum
7

Menken & Ben-Asher, LLP; Gary E. Mason and Charles Schneider of The Mason Law Firm, PLLC; and Jonathan Cuneo and Charles LaDuca of Cuneo Gilbert & LaDuca, LLP. Mr. Keach is an experienced civil rights and class action attorney who has litigated a wide variety of civil rights actions before this Court, and has litigated class action lawsuits in state and federal courts in five states. Mr. Keach has successfully litigated a series of strip search class actions before this Court, including cases against Rensselaer, Schenectady and Montgomery County.
19. Bruce Menken and Jason Rozger are both experienced civil rights attorneys from New York City, having litigated scores of civil rights cases against a number of Defendants, including one prison brutality case presently pending in this District. Mr. Menken and Mr. Rozger have successfully represented many victims of illegal strip searches, including several who opted out of the recent class action litigation against the City of New York. Mr. Menken and Mr. Rozger were also co-counsel in the Rensselaer, Schenectady, Montgomery and Schoharie County class actions.
20. Gary E. Mason is one of this country’s premier class action attorneys, with offices in Washington, DC. Mr. Mason has successfully litigated class actions against Fortune 500 companies in both state and federal court in over a dozen jurisdictions, including gaining a settlement for a class of purchasers of defective polybutylene pipe of $ 950 million dollars. Mr. Mason has served as lead or co-counsel in numerous high profile class actions, including In Re The Exxon Valdez, In Re Diet Drugs Product Liability Litigation and In Re Synthetic Stucco (EIFS) Product Liability Litigation. In addition to his extensive experience as a class action and environmental lawyer, Charles Schneider is a former trial attorney with the U.S. Department of Justice’s Civil Rights
8

Division and has successfully litigated a series of cases involving corrections misconduct. Mr. Mason and Mr. Schneider were also co-counsel in the Rensselaer, Schenectady and Montgomery County class actions.
21. Jonathan Cuneo and Charles LaDuca of Cuneo Waldman & Gilbert, have extensive experience in state and federal trial and appellate courts, before law enforcement authorities and in proceedings before the United States Congress. Cuneo and LaDuca have successfully prosecuted several complex class actions, including cases involving securities fraud, antitrust violations, consumer protection and products liability in state and federal courts throughout the United States. Mr. Cuneo and Mr. LaDuca were also co-counsel in the Schenectady County class action.
22. In short, Plaintiff’s counsel has the resources, expertise and experience to successfully prosecute this action against Clinton County, the Clinton County Sheriff’s Department and the Policy Making Defendants. Counsel for Plaintiff knows of no conflicts among members of the class, or between counsel and members of the class.
23. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to the same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and placed into the custody of the Clinton County Jail. In short, the County of Clinton, the Clinton County Sheriff’s Department, the Policy Making Defendants and Clinton County Corrections Officers acted on grounds generally applicable to all class members.
24. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiff seeks certification under Rule 23(b)(3).
9

25. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy/practice of strip searching all individuals charged with misdemeanors or minor crimes and committed to the Clinton County Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
26. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
27. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for the past several years.
10

28. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff also seeks partial certification under Fed. R. Civ. P. 23(c)(4).
11

FACTS Facts Applicable to the Class Generally 29. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 30. Upon information and belief, the County of Clinton, the Clinton County Sheriff’s Department and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Clinton County Jail (by forcing them to remove their clothing for a visual inspection of their bodies and/or forcing them to submit to a visual inspection of their body cavities) and are placed into jail clothing, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as “strip searches.” 31. The County of Clinton, the Clinton County Sheriff’s Department, and the Policy Making Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. This judicial circuit has stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion, with this principle being clearly established in 1986 by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986) and recently affirmed by Shain v. Ellison,
12

273 F.3d 56 (2d Cir. 2001), cert. denied sub. nom, Nassau Co. v. Shain, 537 U.S. 1083 (2002).
32. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
33. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
34. Upon information and belief, the County of Clinton, the Clinton County Sheriff’s Department and Policy Making Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching all individuals placed into the custody of the Clinton County Jail and placed into jail clothing without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pretrial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
35. Pursuant to this written and/or de facto policy, each member of the Class, including the named Plaintiff, was the victim of a routine strip search upon their entry into the Clinton County Jail. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable
13

suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
36. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches – each member of the class, including the named Plaintiff – has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiff 37. Phyllis Mitchell’s experience is representative of the class at large. On or about March 27, 2003, Ms. Mitchell was arrested and placed in the Clinton County Jail on charges of Abandonment of Animals, Failure to Provide Proper Sustenance (two counts), and Failure to Provide Proper Food and Drink (to animals), all misdemeanors under New York’s Agricultural and Markets Law. Ms. Mitchell subsequently spent one night in the Clinton County Jail before posting $7,000.00 bail, and was released from the Clinton County Jail on March 28, 2003. Ms. Mitchell is presently 47 years old, and has no prior criminal history. She was taken into custody by the New York State Police. The circumstances of her criminal charges are that she is alleged to have failed to feed several animals at her former home in Ellenberg, New York. Upon information and belief, these charges were eventually resolved with Ms. Mitchell agreeing to an Adjournment in Contemplation of Dismissal. 38. At approximately 7:00 PM on or about March 27, 2003, Ms. Mitchell was transported to the Clinton County Jail on $7,000.00 bail. Approximately thirty minutes later, Ms. Mitchell was moved into a room with lockers on the wall in the booking area of
14

the Clinton County Jail and was forced to remove her clothing. As a Corrections Officer watched, Ms. Mitchell removed all of her clothing, including her underpants and brassiere.
39. A Corrections Officer then instructed Ms. Mitchell to lift her breasts, and then to squat and cough. Ms. Mitchell complied, with the Corrections Officer conducting a visual inspection of Ms. Mitchell’s vaginal and rectal area. Mitchell was then provided with a jail uniform.
40. On this particular occasion, there was no reasonable suspicion to believe that Ms. Mitchell was concealing a weapon or other contraband. Indeed, no inquiry was made of Ms. Mitchell that could have given rise to the requisite reasonable suspicion.
41. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Ms. Mitchell has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
15

CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivations Under of Color of State Law -42. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 41. 43. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 44. The actions of Defendants detailed above violated Plaintiff’s rights under the United States Constitution. Simply put, it was not objectively reasonable for Clinton County Corrections Officers to strip search Plaintiff and class members based on their arrests for misdemeanor/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct Clinton County Corrections Officers to conduct such searches. 45. These strip searches were conducted pursuant to the policy, custom or practice of the County of Clinton and the Clinton County Sheriff’s Department. As such, the County of Clinton is directly liable for the damages of the named Plaintiff and members of the Class. 46. Upon information and belief, Sheriff Favro, Undersheriff Maggy and Major Smith are responsible for establishing the policies and procedures to be utilized in the
16

operation of the Clinton County Jail, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, Favro, Maggy and Smith are each individually responsible for the damages of the named Plaintiff and members of the Class.
47. Sheriff Favro, Undersheriff Maggy and Major Smith knew that the CCJ’s strip search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and members of the Class of their Constitutional rights.
48. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
49. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and members of the proposed class have been irreparably injured.
17

AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
50. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 49.
51. The policy, custom and practice of the Clinton County Sheriff’s Department, the County of Clinton and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Clinton County Jail without any particularized suspicion that the individuals in question have either contraband or weapons.
52. Plaintiff and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Clinton and the Clinton County Sheriff’s Department to be unconstitutional.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
53. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 52.
54. The policy, custom and practice of the Clinton County Sheriff’s Department, the County of Clinton and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Clinton County Jail without any particularized suspicion that the individuals in question have either contraband or weapons.
18

55. Upon information and belief, this policy is currently in place at the Clinton County Jail, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiff.
56. The continuing pattern of strip searching individuals charged with minor crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
57. Plaintiff demands that the County of Clinton, the Clinton County Sheriff’s Department, the Policy Making Defendants and Clinton County Corrections Officers immediately desist from strip searching individuals placed into the custody of the Clinton County Jail absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much.
19

DEMAND FOR PUNITIVE DAMAGES 58. The actions of the Individual Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search policy even though they know for a fact that their actions are unconstitutional. 59. It is clear that the Policy Making Defendants, the County of Clinton and the Clinton County Sheriff’s Department have no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish the Policy Making Defendants, and to send a message to them that the requirements of the United States Constitution also apply to government officials in Clinton County.

DEMAND FOR TRIAL BY JURY 60. The Plaintiff hereby demands a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Phyllis Mitchell, on behalf of herself and on behalf of a

class of others similarly situated, request that this Honorable Court grant her the

following relief:

A.

An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23.

B.

A judgment against all Defendants, jointly and severally on Plaintiff’s First

Cause of Action detailed herein, awarding Compensatory Damages to each named

Plaintiff and each member of the proposed class in an amount to be determined by a Jury

and/or the Court on both an individual and a class wide basis.

20

C.

A judgment against Defendant David Favro on Plaintiff’s First Cause of

Action for $1,000,000.00 in punitive damages.

D.

A judgment against Defendant Jerry Maggy on Plaintiff’s First Cause of

Action for $1,000,000.00 in punitive damages.

E.

A judgment against Defendant Michael Smith on Plaintiff’s First Cause of

Action for $1,000,000.00 in punitive damages.

F.

A declaratory judgment against all Defendants declaring the County of

Clinton and the Clinton County Sheriff’s Department’s policy, practice and custom of

strip and visual cavity searching all detainees entering the Clinton County Jail, regardless

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

G.

A preliminary and permanent injunction enjoining Defendants from

continuing to strip and visual cavity search individuals charged with misdemeanors or

minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the

search is concealing weapons or other contraband.

H.

A monetary award for attorney’s fees and the costs of this action, pursuant to

42 U.S.C. § 1988 and Fed. R. Civ. P. 23;

21

Dated: February 27, 2006 Amsterdam, NY

Respectfully submitted by:

/s Elmer Robert Keach, III

_______________________________

Elmer Robert Keach, III, Esquire

USDC, NDNY Bar Roll Number 601537

LAW OFFICES OF ELMER ROBERT

KEACH, III, PC

1040 Riverfront Center

Post Office Box 70

Amsterdam, NY 12010

Telephone:

518.434.1718

Telecopier:

518.770.1558

Electronic Mail:

bobkeach@keachlawfirm.com

Bruce E. Menken, Esquire

USDC, NDNY Bar Roll Number 104942

Jason J. Rozger, Esquire

BERANBAUM, MENKEN, &

BEN-ASHER, LLP 80 Pine Street, 32nd Floor

New York, NY 10004

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail: jrozger@bmbf.com

Gary E. Mason, Esquire

Charles Schneider, Esquire

THE MASON LAW FIRM, PLLC 1225 19th Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.com

22

Jonathan W. Cuneo, Esquire

USDC, NDNY Bar Roll Number 511605

Charles LaDuca, Esquire

USDC, NDNY Bar Roll Number 511604

CUNEO GILBERT & LaDUCA, LLP

317 Massachusetts Avenue, N.E.

Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: CharlesL@cuneolaw.com

ATTORNEYS FOR PLAINTIFF AND THE PROPOSED CLASS

23

 
 UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

:

PHYLLIS A. MITCHELL,

:

both individually and on behalf of a class of :

others similarly situated,

:

:

Plaintiffs,

:

:

Civil Action No. 8:06-CV-00254

v.

:

(NAM) (DRH)

:

THE COUNTY OF CLINTON,

:

DAVID FAVRO,

:

both individually and in his

:

official capacity as Sheriff of the County of :

Clinton, JERRY MAGGY, both

:

individually and as Undersheriff of the :

County of Clinton, and MICHAEL

:

SMITH, both individually and as

:

Major in the Clinton County Sheriff’s

:

Department,

:

Defendants.

:

____________________________________:

MEMORANDUM OF LAW IN SUPPORT OF THE PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

Beranbaum Menken Ben-Asher & Bierman LLP Jason J. Rozger Bar Roll # 105874 Bruce E. Menken Bar Roll # 104942 80 Pine Street, 32nd Fl. New York, NY 10005 (212) 509-1616

Elmer R. Keach, III Bar Roll # 601537 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 (518) 434-1718

Alexandra C. Warren Charles LaDuca Bar Roll # 511604 Cuneo, Waldman & Gilbert LLP 317 Massachusetts Ave, N.E. Suite 300 Washington, DC 20002 (202) 789-3960

TABLE OF AUTHORITIES

iv

I. INTRODUCTION

1

II. STATEMENT OF FACTS

2

A. Phyllis Mitchell’s Arrest and Strip Search

2

B. The County’s Blanket Strip Search Policy

3

1. Three CCJ Corrections Officers Testified There Was Such

A Policy

3

2. The CCJ Written Intake Policy Was Also Unconstitutional

4

C. The Alleged October 2003 Change in Policy

6

III. ARGUMENT

THIS COURT SHOULD CERTIFY THIS ACTION, ON EITHER A

FULL OR PARTIAL BASIS, AS A CLASS ACTION

8

A. The Proposed Class Satisfies the Numerosity Requirement

of Rule 23(a)(1).

10

B. There are Numerous Questions of Law and Fact Common

to the Class.

11

C. The Claims of the Representative Plaintiff are Typical of

the Claims of the Class at Large.

15

D. Plaintiff and Her Counsel Will Fairly and Adequately

16

Represent the Class.

E. Plaintiff Has Satisfied the Requirements for a Money Damages

Class Under Rule 23(b)(3), as the Common Issues Shared by

Class Members Predominate Over Individual Issues and A

Class Action is the Superior Method by Which to

Prosecute this Case.

19

F. Plaintiff Has Also Satisfied the Requirements of Rule 23(b)(2).

24

G. Clinton County Should Be Required to Assist Class Counsel

in Providing Notice to Absent Class Members.

25

ii

IV. CONCLUSION

25

iii

TABLE OF AUTHORITIES FEDERAL CASES
In Re Agent Orange Product Liability Litig., 818 F.2d 145 ......................... 11 Amchem Product v. Windsor, 521 U.S. 591 ........................................... 19, 23 Baby Neal, 43 F.3d 48 ................................................................................... 24 Bynum v. District of Columbia, 384 F.Supp.2d 342 ..................................... 10 Califano v. Yamaski, 42 U.S. 682 ................................................................. 23 In re Cigna Corp. Securities Litigation, 2006 U.S.Dist. LEXIS 58560 ....... 23 Blihovde v. St. Croix County, 219 F.R.D. 607; ................................. 10, 14, 16 Dodge v. County of Orange, 226 F.R.D. 177 ................................... 10, 21, 23 Smith v. Montgomery County, 643 F.Supp. 435 ........................................... 10 Tardiff v. Knox County, 365 F.3d 1 .................................................. 10, 14, 23 Civic Association of Deaf v. Giuliani, 915 F.Supp. 622 ............................... 10 Coley v. Clinton, 635 F.2d 1364 ................................................................... 24 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 ...................... 10 Curry v. City of Syracuse, 316 F.3d 324 ....................................................... 17 D'Alauro v. GC Services Ltd., 168 F.R.D. 451 ............................................. 23 Daniel v. America Board of Emergency Med., 269 F.Supp.2d 159 .............. 11 In re Diet Drugs Product Liability Litig., 282 F.3d 220, .............................. 18 Dietrich v. Bauer, 192 F.R.D. 119 ................................................................ 16 Doan v. Watson, 168 F.Supp.2d 932 ............................................................ 10 Doe v. Calumet City, 754 F.Supp. 1211 ....................................................... 10 Eddleman v. Jefferson County, 1996 U.S.App. LEXIS 25298 ......... 10, 14, 22 General Telegraph Co. of the Southwest v. Falcon, 457 U.S. 147 ............... 15 Gonzalez v. City of Schenectady, 141 F.Supp.2d 304 ................................... 12
iv

Green v. Wolf Corp., 406 F.2d 291 ............................................................... 15 Haney v. Miami Dade County, 2005 U.S.Dist. LEXIS 27739 ...................... 10 Haywood, 109 F.R.D. 568 ............................................................................ 11 In re IPO Litigation, 471 F.3d 24 ................................................................... 9 In re Joint Eastern and Southern District Asbestos Litigation, 78 F.3d 764 16 LaFlamme, 212 F.R.D. 448 .............................................................. 11, 16, 25 Langley v. Coughlin, 715 F.Supp. 522 ......................................................... 22 Lee v. Perez, 175 F.Supp.2d 673 .................................................................. 21 Mack v. Suffolk County, 191 F.R.D. 16; ........................................... 10, 11, 23 Maneely, 208 F.R.D. at 78 ...................................................................... 22, 25 Maneely v. City of Newburgh, 256 F.Supp.2d 204 ....................................... 10 Marisol A. v. Giuliani, 126 F.3d 372 .................................................. 9, 11, 15 Marriott v. County of Montgomery, 227 F.R.D. 159 ........................ 10, 13, 24 McLean v. Merrifield, 2002 U.S.Dist. LEXIS 12753 ................................... 10 In Re NASDAQ Market Makers, 169 F.R.D. 473 ......................................... 19 In Re: Nassau County Strip Search Cases, 461 F.3d 219 ............................. 20 Owens v. County of Del., 1996 U.S.Dist. LEXIS 17098 .............................. 13 Pyke v. Cuomo, 209 F.R.D. 33 ...................................................................... 15 Robideaux v. Celani, 987 F.2d 931 ............................................................... 10 Robinson v. Metropolitan-North Commuter R.R. Co., 267 F.3d 147 ........... 24 Selah v. Goord, 255 F.Supp.2d 42 ................................................................ 17 Spinner v. City of New York, 2003 U.S.Dist. LEXIS 19298 ......................... 10 Visa Check, 280 F.3d at 41 ..................................................................... 19, 22 Wood v. Hancock County Sheriff's Department, 354 F.3d 57 ...................... 12
v

FEDERAL STATUTES FRCP 23 ........................................................................................................ 15 FRCP 23(b)(3) ........................................................................................ 19, 20
FRCP 23(b)(3) ........................................................................................ 20 Fed. R. Civ. P. 23(a) ........................................................................................ 9 Fed. R. Civ. P. 23(b) ....................................................................................... 9 Fed.R.Civ.P. 23(b)(2) ................................................................................... 24 Fed. R. Civ. P 23(b)(3) ................................................................................... 9
vi

I. INTRODUCTION Arrested on minor charges and under circumstances not suggestive of reasonable suspicion, the plaintiff, Phyllis A. Mitchell (“Mitchell” or “Plaintiff”), was nonetheless strip searched upon her entry to the Clinton County Jail (“CCJ”), in violation of the Fourth Amendment of the United States Constitution and the clearly-established caselaw in this judicial circuit. Plaintiff alleges, and testimony from the Defendants and their employees confirms, that she endured this unconstitutional search because of Defendant Clinton County’s policy and practice of strip searching every pre-trial detainee who entered the CCJ, without regard to the presence or absence of reasonable suspicion that such detainees were secreting contraband. Accordingly, numerous other similarly situated Clinton County pre-trial detainees suffered the same constitutional breach and traumatic experience. To put a stop to this unconstitutional practice and to obtain compensation for herself and all others similarly situated, the Plaintiff filed the within lawsuit on February 28, 2006 seeking declaratory and injunctive relief, class certification, monetary damages, and counsel fees. (Exhibit A). The class action device, as provided under the Federal Rules of Civil Procedure, was designated for the exact situation presented to this Court – it provides a means of redress for many who would not have otherwise come forward to address the violation of their rights because of the expense and difficulties of individual litigation. Plaintiff satisfies the general requirements for certification of a class action, and furthermore will demonstrate to this Court the entitlement to certification of a damages class. Other federal courts, considering the exact situation presented to the Court in this motion, have not hesitated to certify class actions where police departments and local correctional facilities have applied a blanket strip search policy to pre-trial detainees. Plaintiff respectfully suggests that certification of this action as a class action is appropriate given case precedent, and given the facts underlying this lawsuit.
1

II. STATEMENT OF FACTS A. Phyllis Mitchell’s Arrest and Strip Search Phyllis Mitchell is a 47 year old mother of six children, and has worked as a radiographer for the past fourteen years. (Exhibit B, 8:11-17)1. On March 27, 2003, Ms. Mitchell was arrested and placed in the Clinton County Jail on charges of Abandonment of Animals, Failure to Provide Proper Sustenance (two counts), and Failure to Provide Proper Food and Drink (to animals), all misdemeanors under New York’s Agricultural and Markets law. (Exhibit B, 14:6-24; exhibit C). Ms. Mitchell testified that, shortly after her arrival at the CCJ, she was moved into a room with lockers on the wall and directed to remove all of her clothing, including her brassiere and underpants. (Exhibit B, 48:5-11, 56:18-20, 58:16-21). The correction officer who performed the strip search, Stephanie LaTulipe, testified and confirmed Ms. Mitchell’s account. (Exhibit D, 38:1517, 39:5-9). Ms. Mitchell was also directed to remove the adult diaper she wore as a result of a bladder control condition (exhibit B, 53:14-17, 59 5-7), an occurrence unusual enough to give Officer LaTulipe a specific, unrefreshed recollection of Ms. Mitchell’s strip search. (Exhibit D, 35:24-37:20, 39:12-22). While naked, Ms. Mitchell was instructed to “lift her breasts [and] completely strip naked and squat” to allow for a visual inspection of her vaginal and anal cavities. Exhibit B, 58:16-21; exhibit D, 41:8-17. Officer LaTulipe strip searched Ms. Mitchell, just as she strip searched every arriving pretrial detainee, in order to ensure that she did not possess any contraband. (Id., 31:22-24). However, Latulipe acknowledged that she had no reason to believe that Ms. Mitchell was concealing weapons or contraband (id., 45:5-16), and no such contraband was found on Ms. Mitchell. (Id., 42:23-24). The reason Ms. Mitchell was subjected to this humiliating procedure is undisputed, since the County
1 All citations to deposition testimony herein will be in the format page number:line number. 2

of Clinton and its correctional officers testified that at the time of Ms. Mitchell’s booking, Defendants had an unconstitutional policy of strip searching every pre-trial detainee who entered the CCJ.
B. The County’s Blanket Strip Search Policy 1. Three CCJ Corrections Officers Testified There Was Such A Policy Three correctional officers who were responsible for booking new detainees into the CCJ testified that there was indeed policy of strip searching each arriving detainee. Latulipe testified that she began working at the CCJ in 1992 (exhibit D, 16:8-12) and was assigned to booking within 6 to 12 months of her arrival. (Id., 16:23–17:1). At that time, arriving detainees were brought into the intake office, where booking paperwork was completed, and the detainee was permitted a telephone call. The inmate would be pat-searched during this part of the procedure. (Id., 28:1929:4). The detainee was then brought to a room known as the inmate locker room. (Id., 26:827:10). There, the detainee would be directed to remove all of her clothing, and while naked, lift her breasts and feet for inspection, open her mouth for inspection, and squat down and cough. (Id., 31:4-14). The officer would be standing in front of the detainee, observing her throughout the entire strip search (id., 31:15-21), and would search the detainee’s clothing once it was removed. (Id., 32:15-16). Officer Latulipe followed this procedure for every detainee she booked into the facility during the 2002-2003 time period. (Id., 33:6-9). The purpose of this strip search was to prevent the introduction of contraband into the facility. (Id., 31:22-24). However, she never found contraband on an arriving inmate during the time she admitted using this procedure. (Id., 43:1-4). Michael Galarneau testified that he has been a CCJ correction officer since approximately 2001. (Exhibit E, 6:9-11). He was first assigned to booking prior to 2003, and during that time period worked booking as a fill in between once a week and once a month. (Id., 10:10-11:4).
3

Galarneau testified, just as Latulipe did, that arriving detainees are pat frisked, and then asked questions in order to fill out booking paperwork. (Id., 12:3-24). The booking officer then takes a photograph of the detainee (Id, 13:2-4). Following the photograph, the detainee would be taken into the inmate locker room, where the correction officer would direct the detainee to remove all of his clothing, and while naked bend over and spread the lobes of his buttocks, lift his arms, open his mouth, and run his fingers through his hair. (Id., 13:18-15:14).
Michael Clukey testimony was consistent with Latulipe’s and Galarneau’s. Clukey first started work in the intake area prior to 2003 (exhibit F, 10:3-19). He testified that, prior to October of 2003, each arriving pre-trial detainee was taken into the locker room, after the booking paperwork was filled out, and strip searched. (Id., 14:11-15:3). Each detainee was required, while naked, to raise his hands, run his fingers through his hair, lift his testicles, raise the bottoms of his feet, and bend over. (Id., 15:4-10). The clothing that the detainee removed was also searched by the officer. (Id., 57:9-11). This procedure was followed for each detainee, regardless of the criminal charge and regardless of whether Officer Clukey believed the detainee was hiding contraband. (Id., 15:1116:1). Clukey was taught to follow this procedure when he was hired in 1996. (Id., 16:8-17). The purpose of the strip search was to prevent the introduction of contraband into the facility (id., 57:46), but Clukey testified that he had never found contraband on a detainee as the result of performing a strip search. (Id., 56:22-24).
2. The CCJ Written Intake Policy Was Also Unconstitutional Before October 2003, the intake searches at the CCJ were governed by two written policies: Policy No. C-102, “Implementing and Maintaining the Admissions Process” (exhibit G), (“admissions policy”) and Policy No. D-221, “Strip Search Procedures” (exhibit H) (“strip search policy”). The admissions policy provides that a “miscellaneous officer” is responsible for strip
4

searching and issuing jail clothing to inmates, but does not provide instruction on how the search is to be done, nor does the policy state that a strip search on intake may only be done if supported by reasonable suspicion. (Exhibit G at 6).
The strip search policy states that only “certain inmates” will be searched at the time of admission, based on reasonable suspicion. (Exhibit H, p. 1). However, the policy goes on to define “reasonable suspicion” in a rigid way that both removes all discretion from the search officer as to who to strip search, and prevents consideration of the particular, individual circumstances of each detainee. A “reasonable suspicion” chart lists fifteen factors, the presence of any one of which will lead to a strip search. The chart provides, among other things, that any detainee charged (either in the present or the past) with any offense involving violence or illegal drugs will be strip searched upon admission. Any detainee who was intoxicated upon arrival would also be strip searched. (Id., p. 1-2). The strip search policy also contains a “Table of Strip Searchable Penal Law Offenses,” which provides that arriving detainees charged with certain offenses will be automatically strip searched. Included in that table are the misdemeanor charges of third-degree assault; third degree menacing, second degree unlawful imprisonment, criminal possession of a controlled substance in the seventh degree, and the violations of unlawful possession of marijuana and disorderly conduct. (Id., p. 5). Michael Smith, the CCJ Administrator and the County of Clinton’s deponent pursuant to F.R.C.P. 30(b)(6), testified that the list of reasonable suspicion factors provided “the reasoning to conduct some strip searches at that time.” (Exhibit I, 82:17-20).
Given the breadth of the written policy, and the large percentage of arriving detainees who would be automatically strip searched under its terms, it is perhaps not surprising that the correction officers testified that they were completely unfamiliar with the written policy, and did not refer to it in conducting the blanket strip search policy. Officer Galarneau testified that he had only
5

skimmed the written policies when he was first hired (exhibit E, 34:1-8) and could not recall having
seen the strip search policy before it was shown to him at his deposition. (Id., 37:14-19). Officer
Clukey had not looked at the policy manual since the time he was hired approximately 10 years ago
(exhibit F, 18:4-7, 7:7-8) and was not familiar with the “Table of Strip Searchable Offenses” (id.,
19:3-17). Latulipe also had never seen the strip search policy prior to her deposition. (Exhibit D,
25:16-23).
C. The Alleged October 2003 Change in Policy
On October 24, 2003, Major Smith wrote a memorandum purporting to revise the inmate
strip search policy. (Exhibit J). This memo stated in part as follows:
Due to a recent Court decision… regarding inmate strip searches the following is effective immediately. The Clinton County jail shall not maintain a “blanket” strip search policy regarding newly admitted inmates. All newly-arrived pre-trial (unsentenced) detainees upon their initial admission to the jail shall not be strip searched unless the officer has a “reasonable suspicion” that the inmate is concealing weapons or other contraband. The decision to strip search shall not be based upon any one factor such as crime committed or degree. Officers shall base their decision on several factors such as crime charged, particular characteristics of the arrestee, and/or the circumstances of the arrest… This memorandum supersedes current Department Policy regarding any provisions defining when newly admitted inmates may be strip searched.
See also exhibit I, 72:18-74:16.2 Major Smith testified that corrections officers were not provided
with copies of the memorandum, but that it was read aloud at pre-shift briefings. (Id., 74:20-75:6).
No follow-up training or instruction was given. (Id., 75:18-22). Officer Clukey confirmed that he
did not receive a copy of this memorandum, but only heard about it from his sergeants (exhibit F,
37:5-10).
However, it is clear from the testimony of the corrections officers that the October 23, 2003
2 Major Smith testified that the memo merely confirmed old Jail policy inasmuch as blanket strip searches were impermissible. The testimony of Clinton County Jail correctional officers supra, severely discredits this testimony.
6

memorandum did not mark the end of the CCJ’s unconstitutional strip search policy. First of all, the memo was not effective at changing the attitudes of the CCJ correction officers. Latulipe testified that fellow officers disagreed with the memo, and that “it’s hard for people to take change.” (Exhibit D, 77:6-14). This change was undoubtedly made more difficult by the lack of any followup instruction. In addition, little about the booking process seemed to change immediately after the memo. Arriving detainees were still changed into their jail uniform in the inmate locker room. There was no curtain or other provision for inmate privacy in place at that time. (Exhibit E, 21:1-2; exhibit F, 24:18-22, 22:11-16). Officer Galarneau testified that at that time he would stand in the doorway and observe the detainee as they changed into their jail uniform, in order to prevent the introduction of contraband into the facility. (Exhibit E, 20:22-21:16, 24:17-25:3, 26:10-18).3 For her part, LaTulipe testified that the intake officer could observe the detainees while they were changing if they chose to. (Exhibit D, 93:22-24).4 Clothing changes were later done in a hallway near the sallyport (exhibit E, 23:15-24) and in an officer’s bathroom (id., 25:4-24, exhibit F, 30:2123). Neither of those locations contained a curtain for privacy during the clothing change. (Id., 22:11-16, 30:24-31:2; exhibit E, 21:1-2, 26:1-4; exhibit D, 103:17-21).
Significantly, the written policies governing admissions and strip searches were not revised until several years later, and were not made available to correctional officers until January of 2006. (Exhibit I, 113:23-25). Until that time, the prior, unconstitutional policies remained in effect. (Id., 114:1-10). The revised policies, on their face, appear to be constitutional. (Exhibits K and L).
According to Major Smith, from February 28, 2003 through the present, inmates were permitted to change from their street clothing into a jail uniform in private. Exhibit I, 116:4-8.
3 Clukey did not admit observing the detainees changing, but testified he would stand in the doorway and not observe the detainee. (Exhibit F, 25:5-11). 4 Officer LaTulipe stated that she did not chose to watch inmates change because the October 24, 2003 memo stated that probable cause was required to strip search a newly admitted inmate. (Exhibit D, 94:6-11).
7

However, as shown supra this testimony is discredited by the testimony of Officers Latulipe,
Galarneau and Clukey, who confirm that before Major Smith’s October 24, 2003 memo, the County
of Clinton conducted blanket strip and visual cavity searches on all new detainees admitted to the
CCJ. In short, at least for eight months of the class period, even the County’s employees agree that
each and every individual admitted to the Clinton County Jail was forced to undergo a strip search,
including a visual examination of their body cavities.
III. ARGUMENT
THIS COURT SHOULD CERTIFY THIS ACTION, ON EITHER A FULL OR PARTIAL BASIS, AS A CLASS ACTION
Phyllis Mitchell seeks to represent a class of thousands of individuals, many of whom are
poor and disenfranchised, who had (and who will have) their civil rights unnecessarily violated by
the uniform strip search practices of Clinton County. Having obtained compelling documentary and
testimonial proof, Plaintiff now moves for certification of the following two subclasses:
Class (a)
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from February 28, 2003 until October 24, 2003. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Class (b)
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the
8

Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from October 24, 2003 through the date on which the Clinton County Sheriff’s Department and/or the County of Clinton cease or ceased, or are enjoined from, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
For the ease of manageability, each of the two subclasses should be certified, for different
factual disputes exist as to each of the time periods set forth above. The evidence is clear that from
February 28, 2003 until October 24, 2003, before Major Smith’s memo, the County engaged in a
policy of strip searching all inmates. A separate class should be certified for the period after
October 24, 2003.
The Court may certify a case for class action treatment where the plaintiff can demonstrate
that the threshold requirements of Fed. R. Civ. P. 23(a) (numerosity, commonality, typicality and
adequacy of representation) are satisfied, and that the class satisfies one of the three criteria set forth
in Fed. R. Civ. P. 23(b)5. Marisol A. v. Giuliani, 126 F.3d 372, 375-76 (2d Cir. 1997). Here,
Plaintiff easily satisfies each these threshold requirements and requests that the Court certify this
action as a money damages class under Fed. R. Civ. P 23(b)(3), or, in the alternative, as an
injunctive relief class action under 23(b)(2). Should the Court find that full certification is not
appropriate, Plaintiff requests partial certification relative to the issues common to the class: the
existence of a blanket strip search policy at the Clinton County Correctional Facility and the liability
of Clinton County for that policy.
As will be outlined more thoroughly below, numerous federal courts in at least seven
5 The Second Circuit in In re IPO Litig., 471 F.3d 24 (2d Cir. 2006) clarified the standards for certifying a class action, holding that a court must be satisfied that the factual basis for each of the Rule 23 factors has been met. Given that the Plaintiff has developed compelling evidence not just in support of the Rule 23 factors, but the merits of her claim, In re IPO is no impediment to class certification in this case.
9

circuits, when considering situations where municipalities employ blanket strip search policies, have not hesitated to certify those actions as class actions.12
A. The Proposed Class Satisfies the Numerosity Requirement of Rule 23(a)(1).
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
impracticable.” Plaintiff is not required to detail, to the person, the exact size of the class or
demonstrate that joinder of all class members is impossible. Robideaux v. Celani, 987 F.2d 931, 935
(2d Cir. 1993) (“[i]mpracticable does not mean impossible”); Civic Ass’n of Deaf v. Giuliani, 915
F. Supp. 622, 632 (S.D.N.Y. 1996) (“precise quantification of the class members is not necessary
because the court may make ‘common sense assumptions’ to support a finding of numerosity”)
(internal citations omitted). Instead, Plaintiff need only provide the Court with a reasonable estimate
as to the size of the class. McLean v. Merrifield, 2002 U.S. Dist. LEXIS 12753, *17 (W.D.N.Y.
June 28, 2002).
Here, Smith testified that there were approximately 1300-1400 bookings a year into the CCJ,
of which about half were misdemeanors. (Exhibit I, 12:9-20, 19:8-10). This would give a class size
of approximately 900 individuals for the first subclass, and many times that number for the second,
depending upon what date was found after trial to be the date the unconstitutional policy ceased.
Numerosity is therefore satisfied. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2nd Cir. 1995) (“Where the proposed class consists of at least forty members … the numerosity
12 First Circuit: Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004); Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000); Second Circuit: Dodge v. County of Orange, 226 F.R.D. 177 (S.D. N.Y. 2005); Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D. N.Y. 2005); Maneely v. City of Newburgh, 256 F. Supp. 2d 204 (S.D.N.Y. 2003); Spinner v. City of New York, 2003 U.S. Dist. LEXIS 19298 (E.D.N.Y. Oct. 6, 2003); Fourth Circuit: Smith v. Montgomery County, 643 F. Supp. 435 (D. Md. 1986); Sixth Circuit: Eddleman v. Jefferson County, 1996 U.S. App. LEXIS 25298 (6th Cir. Aug. 29, 1996) (unpublished); Seventh Circuit: Blihovde v. St. Croix County, 219 F.R.D. 607 (W.D. Wis. 2003); Doan v. Watson, 168 F. Supp. 2d 932 (S. D. Ind. 2001); Doe v. Calumet City, 754 F. Supp. 1211 (N. D. Ill. 1990); Eleventh Circuit: Haney v. Miami Dade County, 2005 U.S. Dist. LEXIS 27739 (S.D. Fla. Oct. 6, 2005); D.C. Circuit: Bynum v. District of Columbia, 384 F. Supp. 2d. 342 (D. D.C. 2005).
10

requirement is presumed to be satisfied”). B. There are Numerous Questions of Law and Fact Common to the Class. Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” “The
commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact.” Marisol A., 126 F.3d at 376. Plaintiff is not required to show that all class members’ claims are identical to each other, and any differences between the proposed class members, “while arguably relevant as defenses to liability, do not change the fact that this class action raises the same basic claim and shares common questions of law.” Mack, 191 F.R.D. at 22-23 (allowing certification of strip search class action despite “varying defenses to liability which may be raised regarding particular individuals”); Daniel v. Am. Bd. of Emergency Med., 269 F. Supp. 2d 159, 189 (W.D.N.Y. 2003) (noting that Rule 23, “does not require that every issue in the case be similar to every other issue presented by each class member’s case … the court’s inquiry is directed primarily to class wide questions of liability”); LaFlamme, 212 F.R.D. 448, 453 (N.D.N.Y. 2003) (“commonality is not precluded by the possibility that the proof required to demonstrate injury might be highly individualized”) (internal quotation marks omitted). Indeed, a single common question is sufficient to satisfy the requirements of Rule 23(a)(2). See generally In Re Agent Orange Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987). A party is entitled to certification where the class claims arise “from a common nucleus of operative facts regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants.” Haywood, 109 F.R.D. 568, 577 (internal quotation marks omitted).
Here, Plaintiff has satisfied the requirements of commonality. The central focus of Ms. Mitchell’s claims against Clinton County are that both she and all members of the proposed classes were illegally strip searched upon their entry into the CCJ, in violation of the Fourth Amendment.
11

Plaintiff has offered compelling evidence, including correction officer testimony, that all individuals admitted to the Jail were, subjected to the visual inspection of their naked bodies upon admission. Ms. Mitchell for her part testified that she was subjected to this procedure upon admission to the CCJ.
There is some evidence, from the correction officer’s testimony, that at some time after October 24, 2003, the intake strip search of pre-trial detainees evolved from a full-blown strip search with inspection of the body’s cavities to the observation of the detainee while changing clothes. Such a procedure is nevertheless unconstitutional. The visual inspection by a corrections officer of a naked, pre-trial detainee is a strip search which must be supported by individualized, reasonable suspicion:
Although strip searches often may involve additional steps, we decline to draw the line so narrowly that standing naked for inspection by officers falls short of being a strip search if unaccompanied by a demand to open one’s mouth or lift one’s arms. Unquestionably, the serious intrusion stems from exposing one’s naked body to officer scrutiny; the impact of that forced nudity is undervalued if focused attention on the mouth and underarms is also required to reach the threshold of a strip search. Wood v. Hancock County Sheriff’s Department, 354 F.3d 57, 63 (1st Cir. 2003); see also Owens v. County of Del., Civ. A. No. 95-4282, 1996 U.S. Dist. LEXIS 17098, *58, n. 22 (E.D. Pa. Aug. 15, 1996) (“The [Tenth Circuit] held that because plaintiff was thus ‘forced to disrobe, we consider this to be a strip search. We do not think it necessary to distinguish between searches of this type and visual body cavity searches. The standard adopted is applicable to all strip searches.’ Similarly, here, [where plaintiff was allowed to remain in underwear], I regard the search performed on plaintiff as a strip search.”); Gonzalez v. City of Schenectady, 141 F. Supp.2d 304, 308 (N.D. N.Y. 2001) (requiring reasonable suspicion for search of a woman who claimed officers “required
12

her to lower her pants (but not her underwear) and raise her shirt (but not take off her bra)); Lopez v. City of New York, 901 F. Supp. 684 (S.D.N.Y. 1995) (rejecting defendants’ argument “that searches that stop short of complete nakedness are reasonable per se,” court applied Fourth Amendment reasonableness test to allegations that plaintiffs were asked to remove clothing and were touched by officers, but were not naked at any point); Mason v. Village of Babylon, 124 F. Supp. 2d 807, 811 (E.D.N.Y. 2000) (court found that search where plaintiff was “asked to lift her shirt, lower her pants and, as put by the County ‘rearrange her undergarments’” violated the Fourth Amendment); Huck v. City of Newburgh, 275 A.D. 2d 343, 712 N.Y.S. 2d 149 (App. Div. 2000) (applying Weber reasonable suspicion analysis where plaintiff “asked to remove all her outer garments, and while her underwear was still on, she was asked to lift her bra and expose her breasts”); Marriott v. County of Montgomery, 227 F.R.D. 159, 169 (N.D.N.Y. 2005) (“admitees are required to strip naked in front of a CO and submit to the observation of their body by the CO. This procedure squarely fits both the common and legal definitions of strip search.”)
As such, this class action has two common issues that are of central importance to members of each of the proposed subclasses: a) did the Clinton County Jail employ a suspicionless strip search policy and/or practice during the class period; and b) are Clinton County and the remaining defendants responsible for these constitutional violations. Class members in the post-October 2003 subclass also share the common question of when and if the unconstitutional policy came to an end. Moreover, the evidence illustrates that Defendants had a policy – either written or a de facto practice – of strip searching (including a visual cavity search) everyone admitted to the Jail at least as of February 28, 2003, and that Plaintiff and the putative class members were in fact strip searched by Defendants during this time frame. Commonality is, accordingly, satisfied. Marriot, 227 F.R.D. at 172.
13

Class certification is appropriate given these common questions, regardless of whether subtle variations in circumstances amongst individual class members exist. Eddleman v. Jefferson County, 1996 U.S. App. LEXIS 25298, *12-13 (6th Cir. Aug. 29, 1996) (commonality is present even where some class members were “subject to a full strip search instead of a partial one, or the fact that some individuals may fail to meet the qualifications for the class because it can be shown that there was reasonable suspicion to search them[;] ... isolated instances of non-commonality are not grounds for denying class certification”); Blihovde, 219 F.R.D. at 616 (certifying strip search class action where “department policy suggests that some arrestees were visually inspected while others were searched more intrusively”).
Defendants may claim that factual disputes (for at least part of the proposed class period) about whether there was in fact a blanket strip search policy at the CCJ precludes class certification because of the IPO decision. However, IPO does not require the Court to resolve this factual dispute (if it exists) at this time. What the IPO decision requires before a class may be certified, rather, is that the Plaintiff show that the proposed class shares a common question of law or fact, not that the common question must be resolved in favor of the class. Adjudicating this issue would be to go beyond that which is necessary to the Rule 23 analysis, which is not to be done at the class certification stage. See IPO, supra at 41 (“in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement.”) What matters is the existence of the common issue, not its resolution. The First Circuit held as much in a similar case:
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-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. Tardiff v. Knox County, 365 F.3d 1, 5 (1st Cir. 2004). Thus, because the disputed question of the
14

existence of a blanket strip search policy (de facto or otherwise) is nothing more than a common predicate to liability for all putative class members and not a requirement of FRCP 23, under IPO the Court cannot and should not resolve any merits dispute on this issue.
Plaintiffs have submitted ample evidence to support a reasonable jury’s conclusion that the defendants had a de facto policy to strip search everyone admitted to the CCJ. The totality of the evidence clearly permits a rational fact-finder to conclude that the defendants had a de facto policy indeed, an actual practice - of strip searching every new admittee to the Holding Center. The evidence submitted to the Court thus illustrates that all of the requirements of FRCP 23 are satisfied in accordance with IPO. Should the Court have doubts about who to believe and which testimony to credit among the documentary evidence submitted, it bears noting that IPO did nothing to alter the long-existing practice and precedent that courts “should resolve all doubts about whether a class should be created in favor of certification.” Pyke v. Cuomo, 209 F.R.D. 33, 41 (N.D.N.Y. 2002); see also Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968).
Under circumstances such as these, where all class members raise common questions of law and assert the same claims as a result of the same unlawful strip search policy, the element of commonality has clearly been established.
C. The Claims of the Representative Plaintiff are Typical of the Claims of the Class at Large.
Rule 23(a)(3) requires that the representative plaintiff’s claims be “typical” of those of the other class members. “The commonality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, n. 13 (1982). The typicality requirement “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol
15

A., 126 F.3d at 376. “Factual differences will not prevent class certification where the claims arise from a common legal theory,” and the fact that class members may have differing defenses is of no import; – “the position that typicality is not satisfied with respect to defenses faced by class members is untenable.” LaFlamme, 212 F.R.D. at 454 (internal quotations and citations omitted); see also Blihovde, 219 F.R.D. at 617 (applying this principle to a strip search class action). A class representative should “have the incentive to prove all of the elements of the cause of action which would be presented by the individual members of the class were they initiating individual actions.” Dietrich v. Bauer, 192 F.R.D. 119, 124 (S.D.N.Y. 2000) (internal quotations marks and citations omitted).
Here, Mitchell’s claims are typical of members of the proposed class. They arise from the same course of events and Mitchell must make similar arguments to prosecute her claims as would be made by members of the proposed class. Typicality is satisfied because the class representative alleges similar circumstances regarding her wrongful strip searches.
D. Plaintiff and Her Counsel Will Fairly and Adequately Represent the Class. Rule 23(a)(4) requires that the class representative “fairly and adequately protect the interests of the class.” Adequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the class members, and especially the representative party, must not have interests antagonistic to one another. In re Joint Eastern and Southern Dist. Asbestos Litigation, 78 F.3d 764, 778 (2d. Cir. 1996). Both prerequisites of adequacy of representation are met in the instant case. Ms. Mitchell seeks to bring an end to the illegal strip searches at the CCJ and is further committed to obtaining appropriate compensation from Defendants for both herself and members of the proposed class. Ms. Mitchell has come forward to represent the class despite great personal
16

pressure and pain – being subjected to a situation as humiliating as a strip search and then being forced to relive it would be difficult for anyone. Her interest in stopping the Defendants’ unconstitutional practice, and in obtaining compensation, is identical to that of the putative class members. Accordingly, there is no antagonism or conflict presented in appointing Phyllis Mitchell as the class representative. Indeed, in nearly identical circumstances, and given the common legal and factual issues, courts have deemed plaintiffs in similar cases to be adequate class representatives. See, e.g., Marriott, supra at 172.
The class is also represented by competent and experienced counsel who have invested considerable time and resources into the prosecution of this action, and have gathered compelling evidence regarding the systematic strip search practices carried our over a period of time in Erie County. Attorney Bob Keach has litigated a number of federal civil rights cases before the U.S. District Court for the Northern District of New York,6 and has also served as lead, local or cocounsel in several class actions including: Hytten v. Volkswagen of America (Sup. Ct., Otsego Co.) (National settlement of warranty fraud litigation); Kelsey v. County of Schoharie, No. 04-CV-1324 (LEK/DRH) (strip search class action regarding Schoharie County Correctional Facility, co-counsel with present Class Counsel); Wies v. Bridgestone/Firestone, Inc., No. 00-CV-1242 (TJM/DRH) (defective firestone tires, later transferred by the Judicial Panel on Multi-district Litigation to the Southern District of Indiana); and Frank v. Goodyear Tire Rubber Co., No. 02-CV 0985 (LEK/RFT) (transferred by Judge Kahn to the District of New Jersey to facilitate settlement).
Jonathan W. Cuneo and Charles J. LaDuca of Cuneo Gilbert & LaDuca, LLP, have extensive experience in state and federal trial and appellate courts, before law enforcement authorities and in
6 See Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003); Lewis v. Gagne, No. 02-CV-0219, 2003 WL 22006403 (N.D.N.Y. August 20, 2003); Selah v. Goord, 255 F. Supp.2d 42 (N.D.N.Y. 2003); Flaherty v. Seroussi, 209 F.R.D. 295 (N.D.N.Y. 2001).
17

proceedings before the United States Congress. Cuneo and LaDuca have successfully prosecuted complex class actions, including cases involving securities fraud, antitrust violations, consumer protection and products liability in state and federal courts throughout the United States. Specifically, Cuneo and LaDuca were sole co-lead counsel in the Entran II product liability litigation, which yielded a settlement of $324 million and covered all 50 states and Canada. Also, Cuneo was lead counsel in the Hungarian Gold Train case, which in September 2005 resulted in the creation of a settlement fund of $25.5 million for Hungarian Holocaust survivors. In addition to this experience, Cuneo and LaDuca are co-counsel in several strip search class actions with Mr. Keach, one of which was recently certified in the United States District Court for the Northern District of New York against the County of Schenectady and other related Defendants.
Jason Rozger and Bruce Menken of Bernbaum Menken Ben-Asher & Bierman, LLP have extensive experience with civil rights and civil liberties litigation, and have been found to be adequate class counsel in several similar class actions in this district. See Marriott, supra; Kahler v. County of Rensselaer, 03 CV. 1324 (TJM)(DRH); McDaniel v. County of Schenectady, 04 CV. 0757 (GLS)(RFT) (preliminary approval of settlement).
Gary E. Mason and Alexander E. Barnett of the Mason Law Firm, P.C. have extensive experience in scores of class action lawsuits and complex litigation such as this. Mr. Mason has served as either lead or co-counsel in scores of class action lawsuits, including In Re Diet Drugs Prod. Liab. Litig., In Re the Exxon Valdez, In Re Synthetic Stucco (EIFS) Prod Liab. Litig. and In Re Swanson Creek Oil Spill, and the Entran II product liability litigation (Galanti v. Goodyear Tire & Rubber Co., No. 03-CV-209, D.N.J.). Mr. Barnett of The Mason Law Firm has litigated numerous class actions, including In re Diet Drugs Prod. Liab. Litig., 282 F. 3d 220 (3rd Cir. 2002), the Entran II litigation, In re Bridgestone/Firestone Inc., ATX, ATX II and Wilderness Tires Products
18

Liability Litig., MDL No. 1371 (S.D. In.); Turner v. General Electric Company., No. 2:05-CV-186FtM-33DNF (M.D. Fla.); and Staton, et al. v. Irving Materials, Inc., et al., No. 03-CI-588 (Ky. Cir. Ct., 4th Judicial Cir., Hopkins City 2005).
In short, the Phyllis Mitchell is an adequate class representative and has retained experienced class counsel that has and will continue to aggressively litigate this action. Plaintiff has satisfied this requirement for certification.
E. Plaintiff Has Satisfied the Requirements for a Money Damages Class Under Rule 23(b)(3), as the Common Issues Shared by Class Members Predominate Over Individual Issues and A Class Action is the Superior Method by Which to Prosecute this Case. Rule 23(b)(3) permits certification when “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 party proposing a class action must establish that issues common to the class predominate over the individual issues of particular class members. Amchem Prod. v. Windsor, 521 U.S. 591, 623 (1997). The predominance requirement of Rule 23(b)(3) is satisfied once the plaintiff establishes that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole ... predominate over those issues that are subject to only individualized proof.” Visa Check, 280 F.3d at 136. The most pragmatic way for the Court to make this determination is to evaluate whether “common proof will predominate at trial.” In Re NASDAQ Market Makers, 169 F.R.D. 473, 517 (S.D.N.Y. 1996); see also In re Plastics Additives Antitrust Litig., Civ. Act. No. 03-2038, 2006 U.S. Dist. Lexis 69105, *18 (E.D.Pa. Sept. 1, 2006) (“satisfaction of the predominance prong of the class certification standard does not require plaintiffs
19

to prove evidence establishing each element of their cause of action at the class certification stage, but, instead, requires plaintiffs to make a threshold showing that each element of their claim may be proven through common, class-wide evidence, rather than through evidence particular to each member of the class.”).
Here, all of the proposed class members’ claims revolve around one central legal issue: did the CCJ maintain an unconstitutional policy of strip searching every pretrial detainee admitted to the CCJ, without regard to reasonable suspicion that the detainee was concealing contraband? The proposed class members’ claims also share common factual issues – did such a practice exist during the two class periods, how long did the practice exist, and is the County of Clinton responsible for this practice? Clearly, legal and factual issues in this litigation predominate over any individual issues. The Second Circuit has concluded that the predominance and superiority requirements of Rule 23 are satisfied in this kind of strip search case. Specifically, in In Re: Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. Aug. 24, 2006), the court reversed the district court’s denial of class certification in a similar strip search case and ordered the district court to certify a class – at least for liability purposes – because the issue of whether the county’s blanket strip search policy violated the law predominated all individual issues in the case and adjudication of liability in a single proceeding was the superior method of managing the case. Id. at 230-31. The determination in In Re Nassau County that cases concerning policies of strip searching everyone brought to correctional facilities satisfy the requirements of FRCP 23(b)(3) is not impacted by IPO. Accordingly, Plaintiffs satisfy FRCP 23(b)(3).
Defendants may claim that the need to analyze the existence of reasonable suspicion for each class member is an issue that predominates over any other common issues. This argument fails for two reasons. First, the metaphysical possibility that some of the class members may, at the time of
20

their arrests, have had characteristics that might add up to reasonable suspicion to conduct a strip search is irrelevant to the events that routinely occurred at the CCJ: the complaint alleges and the evidence shows that the County’s practice did not (and does not) consider the presence or absence of reasonable suspicion when conducting strip searches at admission. Similarly, the deposition testimony cited herein confirms that for at least part of the class period, corrections officers did not make any inquiry as to reasonable suspicion before strip searching an arrestee – all detainees were strip searched. It would be disingenuous at best for correction officials to claim the possibility of facts supporting reasonable suspicion to conduct a strip search if they did not, in the first instance, make an inquiry as to this point. See Dodge v. County of Orange, 226 F.R.D. 177, 182 (S.D.N.Y. 2005) (“If individualized assessments were in fact not made, then all the searches were illegal, because each new arrival was constitutionally entitled to an individualized assessment of his or her circumstances… [T]he fact that a particular class member could have been lawfully strip searched if [the correctional facility] had made the constitutionally required assessment is a defense to a particular class member’s claim for damages, not a defense to the class-wide claim that the County searched everyone without making any assessment at all.”); Lee v. Perez, 175 F. Supp.2d 673 (S.D.N.Y. 2001) (directed verdict entered for strip search plaintiff where search officer could not state reasons for search and the fact that there could be post hoc factors that might support reasonable suspicion was irrelevant).
Second, even if issues of reasonable suspicion do exist, they do not predominate over the common issues of law and fact. As noted by the United States Court of Appeals for the Sixth Circuit:
Defendants argue that because the reasonableness of any search must be examined on a case by case basis, the constitutionality of strip searches cannot be properly evaluated in a class action. The basis for the complaint, however, arises precisely
21

because the Defendants did not conduct an individualized assessment of the need for each search. Plaintiffs allege ... their constitutional rights were violated by a policy or custom, written or unwritten, to search every arrestee who entered the Correctional Facility, regardless of the individual circumstances. Due to the single legal theory and the similar facts for each Plaintiff, a class action would be superior to individual actions.
Eddleman v. Jefferson County, 1996 U.S. App. LEXIS 25298, *15 (6th Cir. Aug.27, 1996) (emphasis
added); Langley v. Coughlin, 715 F. Supp. 522, 557-58 (S.D.N.Y. 1989). Thus, common issues
predominate over any individual issues. See also Marriott, supra at 173:
While there are as many as 2,000 class members, there is one central issue of law – whether the change out strip search violates the Fourth Amendment. Piece meal litigation by multiple plaintiffs in multiple law suits would not promoted efficiency and would be inferior to litigation of the issue in one suit.
Accordingly, any post hoc argument that reasonable suspicion might have existed for any particular
class member is of no import, and should not prevent class certification.
Defendant may also claim that the instant case requires a determination of damages for each
individual, and that this predominates over other common issues. That damages may have to be
calculated individually does not preclude class certification. As the Second Circuit held in Visa
Check:
There are a number of management tools available to a district court to address any individualized damages issues that might arise in a class action, including (1) bifurcating liability and damages trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.
Visa Check, 280 F.3d at 41; see also Maneely, 208 F.R.D. at 78 (“it would be improper to let
manageability concerns overwhelm the predominance decision. There is a common issue at the core
of this case – whether defendants maintained an unconstitutional blanket strip search policy during
the class ... I find these common issues represent a sufficient constellation of common issues binding
22

the class member together.”) (quotations omitted). Given the nature of this action, and in light of the fact that a substantial proportion of the
class membership is comprised of economically disenfranchised individuals, a class action is also the superior method by which to adjudicate claims of individual class members. Poor and marginalized class members are unlikely to be able to litigate their cases individually. Mack, 191 F.R.D. at 25; D'Alauro v. GC Services Ltd., 168 F.R.D. 451, 458 (E.D.N.Y. 1996) (It is appropriate for the court to consider the "inability of the poor or uninformed to enforce their rights and the improbability that large numbers of class members would possess the initiative to litigate individually."); Tardifff, 365 F.3d at 7 (“class status here is not only the superior means, but probably the only feasible one ... to establish liability and perhaps damages”). The class action device is designed for the situation where an individual seeks to vindicate "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Amchem Prods., 521 U.S. at 617. "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.” Mack, 191 F.R.D. at 25 (citations omitted).
Here, the prosecution of this litigation as a class action is superior to having thousands of individual cases being filed in this Court, each of which would be repetitious and possibly yield inconsistent adjudications. See Califano v. Yamaski, 42 U.S. 682, 700-701 (1979); see also In re Cigna Corp. Securities Litig., 2006 U.S. Dist. Lexis 58560, *16-17; Dodge, 226 F.R.D. at 183 (“Where a single issue (such as the existence of a uniform policy) is guaranteed to come up time and time again, issues of judicial economy strongly militate in favor of resolving that issue via a
23

techniques that will bind as many persons as possible.”). Assuming arguendo that summary judgment is not eventually granted against the County, the trial in this action could last for many weeks, with scores of Jail employees being examined about the practices of Clinton County in an effort to establish municipal liability on behalf of the County. Allowing for a even a small proportion of class members to have duplicative trials on this issue would be an enormous waste of judicial time and resources, and would not be the superior or appropriate way to resolve this controversy. For these reasons, Plaintiff respectfully urges this Court to grant the motion for class certification.
F. Plaintiff Has Also Satisfied the Requirements of Rule 23(b)(2). Rule 23(b)(2) permits certification when “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.” Fed.R.Civ.P. 23(b)(2). A (b)(2) class will be certified where “class wide injunctive or declaratory relief is necessary to redress a group-wide injury,” Robinson v. Metro-North Commuter R.R. Co. 267 F.3d 147, 162 (2d Cir. 2001), and certification under (b)(3) is appropriate where the class member’s entitlement to damages flows directly from the claims for class-wide declaratory or injunctive relief. Id., at 165; see also Marriot, supra at 172. Rule 23(b)(2) is “almost automatically satisfied in actions primarily seeking injunctive relief,” Baby Neal, 43 F.3d 48, 58 (3rd Cir. 1994). Courts have noted that Rule 23(b)(2) is "an especially appropriate vehicle for civil rights actions seeking... declaratory relief 'for prison and hospital reform.'" Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (quoting 3B J. Moore & J. Kennedy, Moore's Federal Practice P 23.40(1) (1980)). Where proposed class representatives seek both monetary and injunctive relief, the District Court should allow (b)(2) certification where (1) the positive weight or value to the plaintiffs of the injunctive or declaratory
24

relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy. Dodge, 208 F.R.D. at 90.
Here, the Plaintiff has satisfied the requirements of (b)(2). The questions of whether the Defendants maintained an unconstitutional strip search policy, and the duration of that policy, are clearly issues that are appropriate for class-wide declaratory and/or injunctive relief. Proving the existence of such an unconstitutional policy is in the interest of each and every class member. In addition, class treatment would be efficient and manageable, as the adjudication of these issues could happen once, with the attendant judicial economy. Accordingly, Plaintiffs have satisfied the requirements of a (b)(2) class as well.
G. Clinton County Should Be Required to Assist Class Counsel in Providing Notice to Absent Class Members.
“[I]f a defendant can undertake the tasks associated [with class notice] with less expenses and difficulty than could a plaintiff, the defendant may be ordered to provide notice.” LaFlamme, 212 F.R.D. at 459. Class counsel is fully prepared and able to provide notice to all class members. The County of Clinton, however, which is in possession of all the addresses and social security numbers for the prospective class members, could assemble them into a readily accessible electronic database for a mass mailing. As such, Plaintiff respectfully suggests that the County should reasonably be required to “provide the notice or ... cooperate with plaintiff by giving him the information necessary to provide the notice.” Id. at 460.
IV. CONCLUSION For the foregoing reasons, Plaintiff’s Motion for Class Certification should be granted.
25

Dated: January 29, 2007 New York, New York

Respectfully submitted by:
Beranbaum Menken Ben-Asher & Bierman LLP
By: __________/s/_____________________ Jason J. Rozger Bar Roll # 105874 Bruce E. Menken Bar Roll # 104942 80 Pine Street, 32nd Fl. New York, NY 10005 (212) 509-1616
Alexandra C. Warren Charles LaDuca Bar Roll # 511604 Cuneo, Waldman & Gilbert LLP 317 Massachusetts Ave, N.E. Suite 300 Washington, DC 20002 (202) 789-3960
Elmer R. Keach, III Bar Roll # 601537 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 (518) 434-1718

ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

26

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

PHYLLIS A. MITCHELL, v.

Plaintiff,

THE COUNTY OF CLINTON et al.,

Defendants.

No. 06-CV-254 (NAM/DRH)

DAVID R. HOMER U.S. MAGISTRATE JUDGE
ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE COMPELLED TO OBTAIN SEPARATE COUNSEL
On June 21, 2006, a pretrial conference was held in this action pursuant to Rule 16 of the Federal Rules of Civil Procedure. At that time, the Court was made aware that defendants David Favro, Jerry Maggy, and Michael Smith (collectively referred to herein as the “individual defendants”) are jointly represented by the same attorney who represents defendant County of Clinton (“County”).
In addition to defense counsel’s ethical obligation to inform each client of the potential adverse consequences of joint representation, this Court has a continuing obligation to supervise the bar and assure litigants a fair trial. See Dunton v. County of Suffolk, State of N.Y., 729 F.2d 903, 908-09 (2d Cir. 1984). Accordingly, it is my duty to ensure that the individual defendants fully

appreciate the potential inherent conflict in their joint representation with the County and understand the potential threat a conflict may pose to their individual interests. Id. at 909.
It is therefore hereby ORDERED as follows: 1. If it has not already been accomplished, defense counsel shall within ten (10) days of the date of this order send a copy of this order and a letter to the individual defendants in this action a) outlining the circumstances under which an actual or potential conflict of interest may arise,1 and b) advising whether counsel plans to take a position adverse to the interests of any individual defendant at trial.
Within sixty (60) days of the date of this order, the individual defendants shall proceed in one of the two ways described in subparagraphs A or B:
A. If, after being informed in writing of the potential or actual conflicts, an individual defendant wishes to retain separate counsel, he may do so and new counsel shall file and serve a Notice of Appearance within sixty (60) days of the date of this order;
OR
1The letter shall include, but not be limited to, the circumstances listed in the attachment to this order.
2

B. In the event that an individual defendant wishes to proceed while being represented by his current counsel, I will require additional assurance that any such individual defendant has made an informed decision to do so notwithstanding the potential for conflict. That assurance must be provided in the form of a sworn affidavit from any such individual defendant a) acknowledging that he has been given written notice by counsel of the potential for conflict; b) acknowledging that he understands the potential conflict and its ramifications; and c) stating that he has knowingly and voluntarily chosen to proceed with joint representation. Those affidavits and counsel’s letter to the individual defendants shall be submitted to the chambers of the undersigned within sixty (60) days of the date of this order and, after review, will be filed under seal. At the time of submission to the undersigned, the defendants shall file and serve a Notice of In Camera Submission Regarding Joint Representation.
3. If an individual defendant chooses to exercise the option outlined in paragraph 2(B) above, the Court will review defense counsel’s letter of notification and the individual defendants’ affidavits ex parte and in camera to determine if the individual defendants have knowingly and voluntarily waived their rights to separate counsel.
3

4. If the Court determines that the conflict is of a nature which can be waived and an individual defendant’s waiver of the potential conflict is knowing and voluntary, the Court will allow that defendant to proceed with joint representation.
5. If the Court determines that an individual defendant has not knowingly and voluntarily waived his right to separate counsel, the Court shall order further action as necessary to safeguard the integrity of these proceedings.
6. If an individual defendant consents to joint representation, he will not be deemed to have waived his right to retain separate counsel. However, no extension of deadlines established in the Uniform Pretrial Scheduling Order or of the trial date will be granted because of such substitution of counsel unless such defendant establishes that the substitution resulted from a conflict of interest which reasonably could not have been foreseen when that defendant filed his affidavit agreeing to joint representation and that such defendant promptly proceeded to obtain separate counsel upon learning of the conflict of interest.
DATED: June 22, 2006 Albany, New York
4

Attachment Listed below are some, but not all, of the circumstances in which a conflict of interest may arise when two or more defendants are jointly represented by a single attorney or law firm. The list is not exhaustive but serves only to illustrate examples of types of conflicts which may result from such joint representation. An attorney should also advise a defendant of other possible conflicts specific to the facts of the particular case.
1. It may be in the best interests of the government entity to assert as a defense that a defendant was not acting within the scope of his or her employment at the time of events in issue. However, such a defense would operate to the detriment of an individual defendant and might place his or her defense in conflict with that of the government entity.
2. The attorney may receive information from one defendant which is helpful to one defendant but which undermines the defense of another defendant. Where both defendants are represented by the same attorney or law firm, the attorney-client privilege may prevent the attorney or law firm from using that information in the defense of the defendant for whom the information is favorable.
3. The plaintiff may offer to settle or dismiss claims against one defendant in return for cooperation with the plaintiff’s case. If a defendant receives such an offer, a lawyer or law firm jointly representing defendants may not be able to provide unbiased advice on whether to accept or reject such an offer because the acceptance of such an offer may undermine the case of other defendants whom the attorney or law firm represents.
5

4. During jury selection at trial, a particular potential juror may be perceived as favorable to one defendant but unfavorable to another. Where these defendants are jointly represented by one attorney or law firm, the attorney must choose the interests of one defendant over those of the other in determining whether to select or reject that potential juror.
5. In questioning a defendant during his or her testimony, an attorney who jointly represents other defendants in the same case may be inclined to limit or eliminate certain questions where, although the answers would be helpful to the defense of one defendant, those answers may undermine the defense of another defendant.
6. In questioning non-party witnesses during testimony, an attorney who jointly represents two or more defendants in the same case may be inclined to limit or eliminate certain questions where, although the answers would be helpful to the defense of one defendant, those answers may undermine the defense of another defendant.
7. In determining which witnesses and which exhibits to present at trial, an attorney or law firm jointly representing two or more defendants in the same case may be inclined not to offer certain witnesses or exhibits because, although that evidence may be helpful to the defense of one defendant, it undermines the defense of another defendant.
8. If two or more defendants are found liable for punitive damages and a trial is held on that issue, a lawyer or law firm jointly representing two or more defendants in the same
6

case may be inclined to argue to the fact finder that one defendant was less responsible or less culpable than another. However, while such an argument may benefit the defense of that defendant, it may undermine the defense of another defendant who, the argument would suggest, was more responsible or more culpable.
7

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

__________________________________________

:

PHYLLIS A. MITCHELL, et. al.,

:

:

Plaintiffs,

:

:

-against-

:

:

THE COUNTY OF CLINTON, et. al.,

:

:

Defendants.

:

:

__________________________________________:

Index No. 06-CV-0254(NAM)(DRH)

SETTLEMENT AGREEMENT

Plaintiffs, by and through their counsel, and Defendants, by and through their counsel,

hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for

settlement of the claims herein described against Defendants.

WHEREAS, Plaintiffs filed the above-captioned class action lawsuit against Defendants

alleging that Defendants had violated Plaintiffs’ Constitutional rights under color of state law by

illegally strip searching them and others similarly situated upon entry into the Clinton County Jail,

and the Court certified this case as a class action on July 5, 2007.

WHEREAS, Plaintiffs further allege that, in violation of law and pursuant to the policy of

Clinton County, all persons such as Plaintiffs and the members of the class and subclasses they

represent, who enter the Clinton County Jail charged with misdemeanors, violations of probation

or parole, other violations or minor crimes, or held on civil matters, are strip searched absent any

particularized suspicion that they possess weapons or other contraband.

WHEREAS, Defendants have vigorously denied and continue to deny Plaintiffs’ claims, and

1

Defendants deny any alleged wrongdoing or liability of any kind to Plaintiffs or to any members of the Settlement Class.
WHEREAS, the Parties to this Settlement Agreement have conducted and are continuing to conduct a thorough examination and investigation of the facts and law relating to the matters in this litigation.
WHEREAS, during the course of this litigation, counsel for the Defendants produced to class counsel a spreadsheet of electronic Clinton County Jail inmate data containing, inter alia, contact information for a set of inmates which includes potential class members.
WHEREAS, discovery in this action is complete and has not revealed any benefit to the class members to continue the individual capacity claims against Defendants Favro, Maggy or Smith.
WHEREAS, Defendants have concluded that settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to alleged conduct involved in this Litigation.
WHEREAS, Plaintiffs recognize the costs and risks of prosecution of this litigation, and believe that it is in their interest, and the interest of all Class Members, to resolve this litigation, and any and all claims against Defendants, as well as all employees of the County of Clinton who may have enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
WHEREAS, substantial settlement negotiations have taken place between the Parties, including a mediation conducted by the Honorable David R. Homer, United States Magistrate Judge of the United States District Court for the Northern District of New York, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein.
2

WHEREAS, the undersigned Parties believe that this Settlement Agreement offers
significant benefits to Settlement Class Members and is fair, reasonable, adequate and in the best
interest of Settlement Class Members.
WHEREAS, this Settlement Agreement is made and entered into by and among Defendants
and Plaintiffs, Phyllis Mitchell and Paul Bachmann, individually and on behalf of two subclasses,
respectively, defined as:
Subclass A
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton from February 28, 2003 until October 24, 2003. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Subclass B
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton from October 24, 2003 until July 1, 2007. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned
as follows:
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the meaning set forth
below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice
3

versa. Both Subclass Distribution Amount: “Both Subclass Distribution Amount” shall mean the
Distribution Amount, less the SubSubclass A Supplemental Distribution Amount. Claim Form. “Claim Form” shall mean a form in substantially the same form as that
attached hereto as Exhibit A. Claims Period. “Claims Period” shall mean the time period during which claims may be
made by Settlement Class Members, extending from the Notice Date until the date 120 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday.
Class Counsel. “Class Counsel” shall mean: The Law Offices of Elmer Robert Keach, III, Esquire; Beranbaum, Menken Ben-Asher & Bierman, LLP; Cuneo, Gilbert and LaDuca, LLP; and The Mason Law Firm, PLLC.
Class Notice. “Class Notice” shall mean the Court-approved form of notice in substantially the same form as Exhibit B.
Class Settlement. “Class Settlement” shall mean the terms provided in this Settlement Agreement.
County: “County” shall mean the County of Clinton, New York and/or its Insurer. Court. “Court” shall mean the United States District Court for the Northern District of New York, Magistrate Judge David R. Homer presiding by consent, or his duly appointed or designated successor. Defendants. “Defendants” shall mean the County of Clinton, David Favro, Jerry Maggy, and Michael Smith, and shall include all employees of the County of Clinton who may have devised,
4

promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
Defendants’ Counsel. “Defendants’ Counsel” shall mean Girvin & Ferlazzo, P.C. Effective Date. “Effective Date” shall mean the date on which this Settlement and the Final Judgment (as defined below) have become “Final” in that all of the following conditions have been satisfied: (1) the Final Judgment has been entered; and (2) (a) if an appeal or review is not sought from the Final Judgment, the thirty-first day after of the entry of the Final Judgment, or (b) if an appeal or review is sought from the Final Judgment, the day after the Final Judgment is affirmed and the Final Judgment is no longer subject to judicial review or the day after the appeal or review is dismissed or denied and the Final Judgment is no longer subject to judicial review. Final Approval Hearing. “Final Approval Hearing” shall mean the hearing at which the Court will consider and finally decide whether to enter the Final Judgment. Final Judgment. “Final Judgment” shall mean that Court order that finally certifies the Settlement Class, approves this Settlement Agreement, approves payment of attorneys’ fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement, in substantially the same form as Exhibit C. Gross Distribution Amount. “Gross Distribution Amount” shall mean the amount available from the Settlement Fund after payment of the costs of notice and administration of the Settlement and attorneys’ fees and expenses. Litigation. “Litigation” shall mean the above-captioned lawsuit pending in the United States District Court for the Northern District of New York as No. 06-CV-0254. Mediator. The “Mediator” shall mean The Honorable David R. Homer, United States Magistrate Judge of the United States District Court for the Northern District of New York.
5

Notice Program. “Notice Program” shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
Notice Date. “Notice Date” shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the terms herein.
Objection Date. “Objection Date” shall mean the date agreed upon by the Parties or otherwise ordered by the Court, by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument.
Opt-Out Deadline. “Opt-Out Deadline” shall mean the date agreed upon by the Plaintiffs and Defendants or otherwise ordered by the Court, by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the Settlement must complete the acts necessary to properly effect such election to opt out.
Opt-Out List. “Opt-Out List” shall mean a written list prepared by the Settlement Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
Opt-Out Notice. “Opt-Out Notice” or “Opt-Out” shall mean a Request for Exclusion. Parties. “Parties” shall mean the Plaintiff and Defendants. Plaintiffs. “Plaintiffs” shall mean Phyllis Mitchell and Paul Bachmann. Preliminary Approval Order. “Preliminary Approval Order” shall mean the order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit D. Putative Settlement Class Members. “ Putative Settlement Class Members” shall mean all
6

persons who are within the scope of the definition of the Settlement Class. Release. “Release” shall mean the release described in Section VII herein. Released Claims. “Released Claims” shall mean and include any and all claims or causes
of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein.
Released Parties. “Released Parties” shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein.
Request for Exclusion. “Request for Exclusion” shall mean any request by any Putative Settlement Class Member for exclusion from the Settlement Class in compliance with Section IV herein.
Settlement. “Settlement” shall mean the agreement by the Plaintiffs and Defendants to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement.
Settlement Administrator. “Settlement Administrator” shall mean the qualified party selected by the Plaintiffs and designated and approved by the Court in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiffs nor any other of the Defendants shall have any responsibility for any acts or omissions of the Settlement Administrator.
Settlement Agreement. “Settlement Agreement” shall mean this Settlement Agreement, including any amendment hereto pursuant to Section X.D hereof, and all the exhibits attached hereto.
Settlement Subclass A:. “Settlement Subclass A” shall mean: All persons who were placed into the custody of the Clinton County 7

Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton from February 28, 2003 until October 24, 2003. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Settlement Subclass B: “Settlement Subclass B” shall mean:
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton from October 24, 2003 until July 1, 2007. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Settlement Class Members. “Settlement Class Members” shall mean all
persons in the Settlement Class who do not exclude themselves pursuant to Section IV herein.
Settlement Fund. “Settlement Fund” shall mean a fund used to administer the monetary
requirements of the Settlement. The Settlement Fund will be established by Class Counsel and
entitled the “Clinton County Jail Class Action Settlement Fund” and treated as trust fund monies
under relevant New York ethical standards.
Settlement Amount. “Settlement Amount” shall mean the amount of One Million One
Hundred Fifty Thousand Dollars ($1,150,000) to be paid by the Defendants.
Subclass A Supplemental Distribution Amount: “Subclass A Supplemental Distribution
Amount” shall mean Seventy Thousand Dollars ($70,000) allocated from the Gross Distribution
Amount.
Summary Notice. “Summary Notice” shall mean a notice in substantially the same form
8

as that which appears at Exhibit E. II. REQUIRED EVENTS
A. Promptly after execution of this Settlement Agreement by all Parties: 1. Class counsel shall use their best efforts to cause the Court to enter a
Preliminary Approval Order and the Final Judgment in substantially the forms attached hereto as Exhibits D and C, respectively, and Defendants shall cooperate with Class Counsel in this regard.
2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit D, which by its terms shall:
a. Preliminarily approve the terms of the Settlement Agreement as within the range of fair, reasonable and adequate settlements for purposes of issuing notice;
b. Approve the contents of the Class Notice and methods in the Notice Plan; c. Approve the Settlement Administrator; and d. Schedule a Final Approval Hearing to review comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment (in substantially the same form as Exhibit C) approving the Class Settlement, granting Class Counsel's application for fees and expenses, and dismissing the Litigation with prejudice. 3. Class counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment, and Defendants shall cooperate with Class Counsel in this regard.
9

4. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; and Defendants shall cooperate with Class Counsel in this regard, provided, however, that in no event shall Defendant be required to agree to any such cure that would materially increase the burden, or increase the cost of the Settlement Agreement, to any Defendant.
5. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties’ obligations under this paragraph shall be submitted for decision by the Mediator and his decision shall be binding on the Parties.
III. SETTLEMENT TERMS A. Settlement Fund
1. The County will pay into the Settlement Fund $1,150,000. 2. Not later than ten (10) business days after entry of the Preliminary Approval Order, the County will pay into the Settlement Fund the amount of $50,000 (the “Initial Contribution”) to be used by the Settlement Administrator to cover the initial costs of Notice and administration of the Settlement. If, at any time, whether by order of any court or otherwise, the Settlement does not become final, then any unspent money remaining from the Initial Contribu-
10

tion shall be returned to the County. Any future class-wide settlement or class-wide judgment would be offset by the spent, unreturned amount of the Initial Contribution.
3. The County’s remaining monetary obligation of $1,100,000 will be deposited into the Settlement Fund within five days of the Effective date.
4. Nothing in this Agreement nor any attachments shall obligate any Defendant to pay a cumulative amount in excess of $1,150,000.00. B. Payments to Class Members
1. Each class member who submits a timely Claim Form will be entitled to receive a pro rata share of the Both Subclass Distribution Amount.
2. In addition to the share set forth in part III.B.1, each class member who is a member of Subclass A will be entitled to receive a pro rata share of the SubSubclass A Supplemental Distribution Amount.
3. No Class Member shall be entitled to more than his or her pro rata share of the Both Subclass Distribution Amount and the Subclass A Supplemental Distribution Amount (if applicable) regardless of the number of times he or she has been booked and/or strip searched and regardless of whether he or she is a member of both Subclasses. Class Members who are members of both subclasses may file a Claim Form as a member of Subclass A.
4. The Defendants have represented to Class Counsel that substantial remedial efforts were made regarding Clinton County Jail strip search policies and practices during the time period of July 1, 2006 to July 1, 2007. Class Counsel suspects that some individuals were strip searched during the time period of July 1, 2006 to July 1, 2007. The parties agree that additional verification efforts will be made by Class Counsel to ascertain whether individuals admitted to the Clinton County Jail during this time period were strip searched. The Defendants
11

will cooperate in full with these efforts, including providing access to inmate records, with reasonable notice and without charge to the Class or Class Counsel. The decision about whether or not an individual from this time period will be included in this class will rest in the sole discretion of class counsel. In the event that a class member disputes class counsel's determination, they will have the right to apply to the Mediator to contest this decision. The decision of the Mediator in this regard will be final.
5. The Clinton County Department of Social Services, and any other department or subdivision of the County, agree not to serve any lien notices on Class Counsel, the Settlement Administrator, or any financial institution where the Settlement Fund is deposited. This provision will not, however, limit the Clinton County Department of Social Services’, or any other department or subdivision of the County’s ability to pursue any lawful liens over the funds of individual class members.
6. The Clinton County Department of Social Services, or any other department or subdivision of the County, will take no affirmative steps, except as required by law, to publicize or disseminate the fact that any Class Member has made a claim on the within settlement. The Clinton County Department of Social Services, or any other department or subdivision of the County also agrees not to voluntarily disclose, publicize, or disseminate the list of class members for a period of eighteen (18) months from the date of Final Judgment. C. Release and Discontinuance of Defendants
1. Upon the execution of this settlement agreement, Plaintiffs shall execute full, unconditional releases and partial Stipulation of Discontinuance (without prejudice) for Defendants Favro, Maggy and Smith, regarding all claims arising out of this case. These releases will be held in escrow until final approval of this Settlement Agreement by the Court, at
12

which time said releases will be provided to counsel for the Defendants. The Partial Stipulation of Discontinuance (without prejudice) of the individual capacity claims will be filed with the Court immediately upon the disbursement of the payment prescribed by Section III(A)(2). D. Attorneys Fees and Expenses
1. Class Counsel will petition the Court for an award of attorneys’ fees in an amount not to exceed 30% of the Settlement Fund, as well as for an award for litigation expenses incurred prior to the execution of this agreement, in an amount not to exceed fifteen thousand ($15,000) dollars. Defendants shall not oppose Class Counsel’s application for said award of fees and expenses. Should Class Counsel’s petition for attorney’s fees not be approved by the Court, Defendants shall not oppose an appeal by Class Counsel of such application, and Class Counsel will file all necessary motions and papers to relieve Defendants of the obligation to participate in any appeal. If the Court issues an order granting final approval of the settlement, but without approval of the requested award of attorneys’ fees and expenses, Defendants shall fund the portion of the Distribution Amount, less the disputed part of the application for attorneys’ fees and expenses, and will pay the remainder into an escrow account to be paid in accordance with the outcome of the appeal. E. Additional Discovery
1. The Clinton County Department of Social Services (“DSS”) shall provide a last known address for any Class Member for whom the initial mailing of the Class Notice was returned as undeliverable. DSS will not be responsible for spending more than 30 employee hours complying with this paragraph. If more than 30 employee hours is required, payment for those hours greater than 30 will be made from the Settlement Fund, at the DSS employee performing the work’s regular hourly rate, as well as a supplemental rate of 25% of the em-
13

ployee’s hourly rate to cover benefits to such employee(s). Defendants’ counsel will notify Class Counsel as soon as practicable after the 30 hour threshold is reached.
IV. NOTIFICATION TO CLASS MEMBERS A. Responsibilities of the Settlement Administrator
1. The Settlement Administrator shall implement and administer the Notice Program.
2. The Settlement Administrator shall be responsible for, without limitation: (i) mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; and otherwise administering the Notice Program. The Notice Program shall comply with all requirements of applicable law. B. Notice
1. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all individuals at their last known or readily ascertainable address and by publication in the Plattsburgh Press-Republican on at least one day per week for three consecutive weeks commencing on the Notice date, and on one occasion during the last ten (10) days of the claims period.
2. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, through a dedicated internet website, or through a toll-free telephone number to be established by the Settlement Administrator.
3. If, after the initial mailing, the Notice is returned as undeliverable, the Claims Administrator will attempt to locate the Class Member by way of a national locator database or service and, if another address is found, remail the Notice to that new address.
14

4. The Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendants’ Counsel, attesting to the measures undertaken to provide Notice of the Settlement to Settlement Class Members.
5. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other information about specific Settlement Class Members and/or specific Settlement Class Members that is provided to it by Defendants, Class Counsel, or by individual Settlement Class Members or individual Settlement Class Members, shall all be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
V. REQUESTS FOR EXCLUSION BY CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement and elects to be excluded from any judgment entered pursuant to this Settlement. B. Any Putative Settlement Class Member who submits a timely Request for Exclusion or Opt-Out Notice may not file an objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement. C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class
15

Counsel and to Defendants’ Counsel together with copies of the Request for Exclusion. Class Counsel and Defendants’ Counsel shall jointly report the names appearing on the Opt-Out List to the Court no less than three (3) business days prior to the Final Approval Hearing.
VI. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing and being heard, together with any documents such person wishes to be considered in support of the objection. B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Class Members' objections to the Settlement Agreement, in accordance with such Class Members’ due process rights. The Preliminary Approval Order and Class Notice will require all Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon Class Counsel and Defendants’ Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above shall not be heard during the Final Approval Hearing, nor shall their objections
16

be considered by the Court. VII. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT A. By this Settlement Agreement and the following Release, Defendants, and all of
their respective affiliates, predecessors, successor and assigns, officers, agents, representatives, and employees are released from any and all claims or causes of action that were, could have been, or should have been asserted by the named Plaintiffs or any member of the Class against the Released Persons, or any of them, based upon or related to all claims of unlawful searches asserted under either State or Federal law, and/or all claims for searches, strip searches, visual inspections, and/or visual observations of a Plaintiff’s or Class Member’s body.
B. This Settlement Agreement and Release does not affect the rights, if any, of Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to, orders enjoining Class Members from prosecuting claims that are released pursuant to the Settlement Agreement.
D. Upon the Effective Date: (I) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Class Members and their successors, predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting
17

any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal.
E. Upon the Effective Date of this Settlement Agreement, this action shall be discontinued with Prejudice as to all Defendants.
VIII. INCENTIVE AWARDS TO CLASS REPRESENTATIVE A. Given the efforts of the named Plaintiffs on behalf of the Settlement Class, Defendants will not oppose total awards by the Court to the Plaintiff and Class Representative as follows: 1. Subject to the Court’s approval, Plaintiff and Class Representative Phyllis Mitchell will be awarded $25,000 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is not disputed by the parties that Ms. Mitchell provided substantial assistance to Class Counsel in their prosecution of this action, and that Ms. Mitchell, as lead plaintiff in this action, was subject to considerable public scrutiny as a result of the filing of his action. Additionally, the parties also recognize that Ms. Mitchell rejected the $24,000 Rule 68 offer in order to continue representing the then proposed class. Subject to the Court’s approval, Plaintiff and Class Representative Paul Bachmann will be awarded $10,000 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is not disputed by the parties that Mr. Bachmann provided substantial assistance to Class Counsel in their prosecution of this action. Subject to the Court’s approval, Peter Decicco will be awarded $2,500 from the Settlement Amount, such amount to be paid before distributions to the general Class. It is not disputed by the parties that Mr. Decicco provided substantial assistance to Class Counsel in their prosecution of this action.
18

IX. MISCELLANEOUS PROVISIONS A. This Settlement Agreement, and the exhibits and related documents hereto, are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any alleged wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Any payment of moneys, or any other action taken, by any of the Defendants pursuant to any provision of this Settlement Agreement, shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any alleged wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Defendants and each of them deny any liability to Plaintiffs and to all members of the Class. This provision shall survive the expiration or voiding of the Settlement Agreement. B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Judgment is not entered, then this Settlement Agreement, including any releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties’ settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
19

C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties.
E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
G. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear his or its own costs of the Litigation.
H. If any clause, provision or paragraph of this Settlement Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this Settlement Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had not been contained herein.
I. The Parties to this Settlement Agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement.
J. All applications for Court approval or Court orders required under this Settlement 20

Agreement shall be made on notice to Plaintiffs and Defendants. K. The determination of the terms of, and the drafting of, this Settlement Agreement,
including its exhibits, has been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of all Parties and their counsel, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the Parties was represented by competent and effective counsel throughout the course of settlement negotiations and in the drafting and execution of this Settlement Agreement, and there was no disparity in bargaining power among the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any other Party or any other Party’s counsel.
L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material and integral
parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitute the entire,
fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the Litigation.
M. Notice: 1. Any notice, request or instruction or other document to be given by any
party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:
If to Defendants to: Gregg T. Johnson, Esq., Girvin & Ferlazzo, P.C., 20 Corporate Woods Blvd., Albany, NY 12211
21

If to Class Counselor Plaintiffs to: Jason Rozger, Esq., Beranbaum Menken Ben-Asher & Bierman LLP, 80 Pine Street, 32nd Floor, New York, NY 10005, or Elmer R. Keach III, Esq., 1040 Riverfront Center, P.O. Box 70, Amsterdam, NY 12010.
N. Dispute Resolution 1. The Parties agree that any disputes regarding the terms and conditions of
this Agreement, the Parties' rights and obligations under this Settlement Agreement, and/or the manner in which any issue or dispute arising under this Settlement Agreement shall be submitted to the Mediator, who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation, shall decide such dispute. The Mediator's decision shall be final and binding. If for any reason the Mediator becomes unable to serve, the Parties shall attempt to agree on a substitute mediator. If they are unable to do so, any issue or dispute covered by this Section shall be resolved by the Court.
IN WITNESS WHEREOF, Plaintiffs and Defendants and their respective counsel have executed this Settlement Agreement as ofthe date(s) indicated 0 Dated: October 8, 2008
Elmer R. Keach, ill, Esq. Class Counsel and Counsel for the Plaintiffs 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010
Rodney Brown Deputy County Administrator County of Clinton
22 


ELMER ROBERT KEACH, III
ADMITTED IN NY, MD & NJ

LAW OFFICES
ELMER ROBERT KEACH, III
A PROFESSIONAL CORPORATION
1040 RIVERFRONT CENTER POST OFFICE BOX 70
AMSTERDAM. NEW YORK 12010
TELEPHONE 51B-434-1718 TELECOPIER 518-770-1558
bobkeachOkeachlawfirm.com www.keachlawfirm.com
October 8, 2008

HEATHER H. DECKER
PARALEGAL

The Honorable David R. Homer United States Magistrate Judge United States DiStrict Court
for the Northern District of New York 
 James T. Foley U.S. Courthouse 
 445 Broadway 
 Albany, NY 12207 

Re: Mitchell v. County ofClinton, No. 06-CV-0254 (GLSIDRH)
Dear Judge Homer:
After much consternation, I am pleased to report to the Court that the above-captioned action has been settled by the parties. A copy of the Class Action Settlement Agreement is attached to this letter. The parties are currently working through the attachments to the Settlement Agreement, including the Plan of Distribution and Oass Notices, to address some late changes to the Settlement Agreement visited during the past ten days, and will file these attachments with their Motion for Preliminary Approval.
In light of the filing of this Agreement with the Court, I respectfully request that the Court rescind all deadlines in the Uniform Pretrial Scheduling Order, and that the Court set November 10, 2008 as the date for the parties to move for Preliminary Approval of the proposed class action settlement.
The parties thank the Court for its extensive efforts to assist the parties in resolving this matter, and for its patience as the parties have concluded the Settlement.

The Honorable David R. Homer October 8, 2008, Page 2 Re: Mitchell v. County ofClinton
Should Your Honor have any additional questions or concerns in this regard, please do not hesitate to contact me.
--
Enclosure
cc:
ByECF
All Counsel of Record

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------------------------X PHYLLIS A. MITCHELL, et. al.,

Plaintiffs,

-againstTHE COUNTY OF CLINTON,

No. 06-CV-0254 (DRH)

Defendant. -----------------------------------------------------X

DAVID R. HOMER U.S. MAGISTRATE JUDGE

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT

This case coming on for hearing before the undersigned Judge on December 4,

2009 to conduct a final fairness hearing to determine whether the proposed

Settlement Agreement between the parties is fair, reasonable and adequate, and to

address Class Counsel's application for an award of attorney's fees and costs; and the

Class Members being represented by Class Counsel and Defendant being represented by

its attorney; the Court having read and considered the Settlement Agreement, the Notice

Plan, Affidavits, and Memoranda of Law submitted by Class Counsel, and having

considered the submissions by Class members, now makes the following:

FINDINGS OF FACT 1. This action was commenced on February 28, 2006, as a class action. 2. After years of intensive litigation, including extensive discovery and motion practice before this Court, and including the granting of the Plaintiffs’ motion for class

certification, and as a result of intensive, arm's length negotiations between Class Counsel and Defendant, as well as two settlement conferences before the Court, the parties have reached accord with respect to a settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendant ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the Court on March 10, 2009.
3. As part of the Order Granting Preliminary Approval, this Court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement.
4. As of the deadline for the filing of objections, no objections were filed. Given the size of this Settlement Class, and the notice plan described above, this Court finds that the absence of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendant.
5. The settling Parties have filed with the Court an affidavit from Jose C. Fraga declaring that the mailing of the Court-approved notice and newspaper advertising, consistent with the Notice Plan, has been completed.
6. The Court finds that the published notice, mailed notice, and Internet posting constitute the best practicable notice of the Fairness Hearing, the proposed Settlement, Class Counsel's application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due, and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the
2

United States, the laws of New York and any other applicable law. 7. Any persons who wished to be excluded from this Action were provided an
opportunity to “opt out” pursuant to the Notice. None have done so. 8. Class Members are bound by the Settlement, the Settlement Agreement and
releases contained therein, and the Final Order and Judgment, and do not have any further opportunity to opt-out of the Action.
9. Any class member who did not timely file and serve an objection in writing to the Settlement Agreement, to the entry of Final Order and Judgment, or to Plaintiffs' Class Counsel's application for fees, costs, and expenses in accordance with the procedure set forth in the Class Notice and mandated in the Order Granting Preliminary Approval of Settlement, is deemed to have waived any such objection by appeal, collateral attack, or otherwise.
10. On the basis of all of the issues in this litigation and the provisions of the Settlement Agreement, the Court finds that the Settlement is a fair, reasonable, and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure. There are a number of factors which the Court has considered in affirming this Settlement, including:
A. The liability issues in this case have been vigorously contested. B. The Court notes that for settlement purposes, this Settlement has the benefit of providing relief to Class Members now without further litigation. This Settlement provides Class Members with a substantial monetary benefit. C. This Settlement is clearly a byproduct of hard-fought litigation between the parties and not a result of any collusion on the part of Class Counsel or Counsel for the
3

Defendant. D. Class Counsel submitted to the Court and served on the Defendant their
application for attorney’s fees, in the amount of $324,730.93 and expenses in the amount of $10,699.10, consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel's request and hereby grants the request.
E. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to resolve any unanticipated problems.
Now, therefore, on the basis of the foregoing Findings of Fact, the Court hereby makes the following:
CONCLUSIONS OF LAW 11. This Court has jurisdiction over the parties and the subject matter of this proceeding. 12. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Settlement Subclasses are certified for purposes of final settlement: Subclass A: All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton from February 28, 2003 until October 24, 2003. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. Subclass B: All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Jail pursuant to the policy, custom and practice of the Clinton County
4

Sheriff’s Department and the County of Clinton from October 24, 2003 until July 1, 2007. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
13. The Settlement Subclass A Representative, Phyllis Mitchell, is entitled to and is hereby awarded a payment of $25,000.00 in recognition of her efforts in connection with this lawsuit, which included declining an offer of judgment of $24,000.00. The Settlement Subclass B representative, Paul Bachmann, is entitled to and is hereby awarded a payment of $10,000.00 in recognition of his efforts in connection with this lawsuit, and Peter Deciccio, who provided substantial assistance to the Class and agreed to serve as class representative, is entitled to and is hereby awarded $2,500.00.
14. The Court grants final approval of the Settlement Agreement as being fair, reasonable, and adequate, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
15. The request for attorney’s fees is reasonable. Now, therefore, on the basis of the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 1. The Motion for Final Approval of the Proposed Settlement (Docket No. 134) is GRANTED. 2. The Settlement Subclass A Representative, Phyllis Mitchell, is awarded $25,000.00; the Settlement Subclass B representative, Paul Bachmann, is awarded $10,000.00; and Peter Deciccio, is awarded $2,500.00. 3. The Class Counsel’s application for attorney’s fees and expenses is GRANTED. 4. This Action and all claims against the Settling Defendant are hereby DISMISSED
5

with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members to interpret and enforce the terms, conditions, and obligations of the Settlement Agreement.
5. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum.
6. The parties will confer regarding any rejected claimant who submits additional information and finalize the list of Class Members filing claims on or before December 14, 2009. After December 14, 2009, the list of valid claims will be final. IT IS SO ORDERED. DATED: December 4, 2009
Albany, New York
6

 
 Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

KeyCite Yellow Flag - Negative Treatment Declined to Follow by Rattray v. Woodbury County, Iowa, N.D.Iowa, September 2, 2008
2007 WL 1988716 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Phyllis A. MITCHELL, both individually and on behalf of a class of others similarly situated, Plaintiff, v.
The COUNTY OF CLINTON; David Favro, both individually and in his official capacity as Sheriff
of the County of Clinton; Jerry Maggy, both individually and as Undersheriff of the County of Clinton; Michael Smith, both individually and as Major in the Clinton County Sheriff’s Department,
Defendants.
No. 8:06-CV-00254. | July 5, 2007.
Attorneys and Law Firms
Cuneo, Gilbert & LaDuca, LLP, Alexandra C. Warren, Esq., of Counsel, Charles J. LaDuca, Esq., of Counsel, Jonathan W. Cuneo, Esq ., of Counsel, Washington, D.C., Beranbaum, Menken & Ben-Asher, LLP, Bruce E. Menken, Esq., of Counsel, Jason J. Rozger, Esq., of Counsel, New York, NY, Charles A. Schneider, Esq., of Counsel, Gary E. Mason, Esq., of Counsel, The Mason Law Firm, PLLC, Washington, D.C., Elmer R. Keach, III, Amsterdam, NY, for Plaintiff and Proposed Class.
Girvin & Ferlazzo, P.C., Gregg T. Johnson, Esq., of Counsel, Jacinda Hall Conboy, Esq., of Counsel, Albany, NY, for Defendants.
Opinion
MEMORANDUM-DECISION AND ORDER
Hon. NORMAN A. MORDUE, Chief U.S. District Judge.
BACKGROUND
*1 Plaintiff moves (Dkt. No. 35) for class certification in this action alleging federal civil rights violations stemming from defendant Clinton County’s practice and policy of strip searching all pretrial detainees admitted to the Clinton County Jail on charges of misdemeanors or

lesser crimes, regardless of whether there was reasonable suspicion that such detainees possessed contraband or weapons. Plaintiff relies on Second Circuit precedent holding that “persons charged with a misdemeanor and remanded to a local correctional facility ... have a right to be free of a strip search absent reasonable suspicion that they are carrying contraband or weapons[.]” Shain v. Ellison, 273 F.3d 56, 66 (2d Cir.2001). The complaint seeks declaratory and injunctive relief, class certification, monetary damages, and counsel fees.
Plaintiff alleges that defendants had a blanket strip search policy and practice prior to October 24, 2003; that on that date defendant Major Michael Smith, administrator of Clinton County Jail, wrote a memo revising the policy; that the memo was read to the corrections officers but not distributed to them; and that thereafter the corrections officers continued to carry out the practice of blanket strip searches.
Plaintiff moves for certification of the following two subclasses:
Class A
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from February 28, 2003 until October 24, 2003. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Class B
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from October 24, 2003 through the date on which the Clinton County Sheriff’s Department and/or the County of Clinton cease or ceased, or are enjoined from, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
1

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

Plaintiff requests that the Court certify this action as a money damages class action under Fed.R.Civ.P. 23(b)(3) and/or an injunctive relief class action under Rule 23(b)(2). In the alternative, plaintiff requests partial certification. The Court grants class certification as set forth below.

Class B, which, as alleged, covers a longer period of time,2 would exceed this number. It is true that plaintiff’s evidence is imprecise; nevertheless, the undisputed evidence before the Court suffices to establish that the members of the entire class number well into the hundreds, very likely over a thousand. Clearly, due to the number of potential class members, joinder of individual members as named defendants is impracticable. The numerosity requirement has been met.

APPLICABLE LAW
*2 A plaintiff seeking class certification has the burden of showing that the class satisfies all the requirements of Federal Rule of Civil Procedure 23(a), i.e., numerosity, commonality, typicality, and adequacy,1 as well as one of the subsections of Rule 23(b). See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir.2001). Courts have also required a showing that the class meets the implicit threshold requirement of ascertainability. See Dunnigan v. Metro. Life Ins. Co., 214 F.R .D. 125, 135 (S.D.N.Y.2003). A district court addressing such a motion must conduct a “rigorous analysis” of the Rule 23 requirements; it should not, however, inquire into the merits of the case. See Heerwagen v. Clear Channel Communications, 435 F.3d 219, 225 (2d Cir.2006).
DISCUSSION
Numerosity The numerosity requirement of Rule 23(a)(1) is satisfied by a showing that, due to the number of potential class members, joinder of individual members as named defendants would be impracticable. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). In the case at bar, the numerosity of plaintiff’s proposed class is supported by the deposition testimony of Major Smith, administrator of the jail since 1996, that the average capacity of the facility is about 230 detainees, that in 2004 approximately 1400 detainees entered the facility, and that roughly half of them, or perhaps 900, were booked on misdemeanor or other minor charges. Defendants-who presumably are in possession of the precise figures-submit no evidence on the question, but argue that plaintiff’s evidence is insufficient to establish numerosity.
The proposed Class A covers the eight-month period from February 28, 2003 until October 24, 2003. Assuming that the number of misdemeanor detainees in each month of 2003 was roughly the same as in 2004, the Court calculates that Class A comprises more than 500 people.

Commonality Under Rule 23(a)(2), plaintiff must also show commonality, that is, that the action raises an issue of law or fact common to the class. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir.2001). Plaintiff has shown the existence of legal and factual issues common to all proposed members of the proposed class, i.e., what strip search policy and practice existed, whether the policy and/or practice were unconstitutional, and whether some or all of the defendants are liable. The requirement of commonality is met.
*3 The Court adopts plaintiff’s proposal to divide the class into two subclasses based on some evidence that defendants’ policy and/or practice changed as a result of a memo by Major Smith dated October 24, 2003. Class A comprises pre-October 24, 2003 misdemeanor detainees who were strip searched pursuant to defendants’ policy and/or practice; Class B comprises post-October 24, 2003 misdemeanor detainees who were strip searched pursuant to defendants’ policy and/or practice. Class A’s issues would differ from Class B’s issues if-and to the extent that-the policy and/or practice prior to October 24, 2003 differed from the policy and/or practice thereafter. There is conflicting record evidence regarding what policy and practice existed prior to the October 24, 2003 memo, whether the memo changed the policy or merely clarified it, and whether the memo effected any alteration in the corrections officers’ practices. Moreover, the differing evidentiary questions may result in different procedural issues. For example, plaintiff’s counsel opines that defendants’ liability with respect to Class A will be the subject of a summary judgment motion and that defendants’ liability with respect to Class B will be determined in a jury trial. Therefore, dividing the class into subclasses will enhance the commonality of the factual issues in each subclass.
Typicality The typicality factor, set forth in Rule 23(a)(3), concerns whether the claim of the class representative is typical of the claims of the class. See Robinson, 267 F.3d at 155. Plaintiff must show that each class member’s claim “arises from the same course of events, and each class
2

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

member makes similar legal arguments to prove the defendant’s liability.” Id. (citation omitted). Here, the named plaintiff, Phyllis A. Mitchell, claims that she was a misdemeanor detainee, that she was strip searched without reasonable suspicion pursuant to defendants’ blanket policy and practice, that the policy and practice were unconstitutional, and that defendants are liable. Her claim thus arises from the same course of events and is based on the same legal arguments as the claim of every other proposed class member. The requirement of typicality is met.
The typicality of the named plaintiff’s claims is increased by the division of the class into Class A and Class B. As noted above in connection with the commonality inquiry, the evidentiary issues arising in Class A’s claims, which accrued prior to the October 24, 2003 memo, may differ in some respects from those arising in Class B’s claims, which accrued after the memo. Ms. Mitchell’s detention occurred on March 27, 2003; as such, her claims are typical of Class A’s claims.
Adequacy With respect to the adequacy of the proposed class representative under Rule 23(a)(4), defendants argue that plaintiff’s interests are antagonistic to the interests of other members of the proposed class due to the effect on some potential class members of the limitation on money damages imposed by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). United States District Judge Lawrence E. Kahn rejected this argument in Kelsey v. County of Schoharie, 2007 WL 603406, *10-11 (2007). This Court agrees that the issue does not impair the adequacy of the named plaintiff as class representative.
*4 With respect to the adequacy of the named plaintiff’s knowledge of the case, a review of her deposition transcript establishes that she has an adequate understanding of the lawsuit and her role as class representative. There is no reason to believe that, during pretrial discovery and at trial, she “will give misleading and contradictory testimony with regard to basic issues in the case that might make [her] claims subject to unique defenses.” Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52, 61 (2d Cir.2000) (citation omitted). The named plaintiff meets the requirement of adequacy for the entire class.
Ascertainability As noted, courts have also required a showing that the class is ascertainable, that is, that it is “defined by objective criteria that are administratively feasible, without a subjective determination.” Dunnigan, 214 F.R.D. at 135. The class must be readily identifiable “so

that the court can determine who is in the class, and thus, who is bound by the ruling.” McBean v. City of New York, 228 F.R.D. 487, 492 (S.D.N.Y.2005). Here, the class members are all those admitted to the facility during specified time periods on specific charges and subjected to strip searches. Presumably, these matters are reflected in defendants’ records. The class is ascertainable.
Rule 23(b)
In addition to meeting all four criteria of Rule 23(a), a plaintiff seeking class certification must satisfy one element of Rule 23(b).3 Plaintiff contends that she has met the requirements of Rule 23(b)(3) because she has shown that common questions predominate over questions affecting individual plaintiffs and that a class action the best method of adjudicating the case.
The predominance requirement tests whether proposed classes are “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623 (1997). A plaintiff must show that the issues in the class action that are subject to generalized proof-and thus applicable to the class as a whole-predominate over those issues that are subject only to individualized proof. See In re Visa Check, 280 F.3d at 136.
The putative class here comprises all persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors or other minor crimes and were strip searched pursuant to the policy and practice of the Clinton County Sheriff’s Department and the County of Clinton. The questions of whether the alleged policy and practice existed, whether they were unconstitutional, and whether defendants are liable are subject to generalized proof and are common to all potential class members.4 These issues predominate over those issues that are subject to individualized proof. See, e.g., Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219, 228 (2d Cir.2006); Kelsey, 2007 WL 603406 at *12. Further, the division of the class into two subclasses heightens the predominance of issues common to the class members.
*5 Further, a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Given the size of the class and the predominance of issues subject to generalized proof, the class action procedure will clearly increase the efficiency of adjudication and the uniformity of outcome of the claims. Also, it is probable that many members of the class would not have the resources to pursue their claims individually, and they are unlikely to wish to pursue their claims in separate actions. Nor is there any reason to believe that the prosecution of separate actions would
3

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

result in better outcomes for the claimants. In light of the nature of the issues and the flexibility accorded to courts in handling class actions, it is unlikely that the management of this case as a class action will present inordinate difficulties. Indeed, in Augustin, in directing certification of a class action as to liability for a blanket strip search policy, the Second Circuit observed that “when plaintiffs are ‘allegedly aggrieved by a single policy of defendants,’ such as the blanket policy at issue here, the case presents ‘precisely the type of situation for which the class action device is suited’ since many nearly identical litigations can be adjudicated in unison.” 461 F.3d at 228 (quoting In re Visa Check, 280 F.3d at 146).
The Court notes that the existence of defenses with respect to individual plaintiffs, such as whether a particular strip search was conducted based on contemporaneously held suspicion, does not foreclose certification; such an inquiry will concern only a limited number of plaintiffs. See id. at 230. Plaintiff has met the requirements of Rule 23(b)(3).
Rule 23(b) (2)
Having determined to certify the class under Rule 23(b)(3), the Court need not consider whether certification under Rule 23(b)(2) would also be appropriate. See Augustin, 461 F.3d at 230, n. 4; In re Visa Check, 280 F.3d at 147.
Complete or partial certification An argument may be made that the class should be certified only on the issue of liability, because the issue of damages is likely to involve individualized evidence. As the Second Circuit states:
There are a number of management tools available to a district court to address any individualized damages issues that might arise in a class action, including: (1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.

In re Visa Check, 280 F.3d at 141 (footnote omitted); accord Augustin, 461 F.3d at 231. Clearly, the Court has the flexibility to deal with management issues as they arise. At this point, denial of certification regarding damages or other issues is not warranted. The case in its entirety is certified as a class action.
Appointment of class counsel *6 Plaintiff’s attorneys seek appointment as class counsel pursuant to Rule 23(g). In appointing class counsel, the Court must determine that counsel will “fairly and adequately represent the interests of the class.” Rule 23(g)(1)(B). The Court should consider “the work counsel has done in identifying or investigating potential claims in the action, counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, counsel’s knowledge of the applicable law, and the resources counsel will commit to representing the class.” Rule 23(g)(1)(C)(i). Also, the Court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class” and “may direct potential class counsel to provide information on any subject pertinent to the appointment[.]” Rule 23(g)(1)(C)(ii),(iii).
The Court has reviewed the complaint, the progress of the case, and the lengthy submissions on the instant motion. Elmer Rogert Keach, III, Esq., Beranbaum, Menken & Ben-Asher, LLP, Cuneo, Gilbert & LaDuca, LLP, and The Mason Law Firm, PLLC, have all previously represented other plaintiffs in complex class actions. Indeed, on February 21, 2007, Mr. Keach and counsel from Beranbaum, Menken & Ben-Asher, LLP obtained class certification for the plaintiffs in Kelsey v. County of Schoharie, 2007 WL 603406 (N.D.N.Y.). The evidence establishes that the requirements of Rule 23(g)(1)(B) and (C) are satisfied.5
Intervention As stated, the Court adopts plaintiff’s proposal that the class be divided into Class A and Class B. Plaintiff’s reply memorandum of law states:
In the event that the Court determines that Phyllis Mitchell is not an adequate representative of Class (b), Plaintiff respectfully requests that certification be preliminarily granted and that Plaintiff be provided the opportunity to intervene Paul Bachmann, who has agreed to serve as class representative (Menken affidavit), as a new party to
4

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

represent this subclass.
Included in plaintiff’s reply papers is an affidavit by Paul Bachman, who states that on November 9, 2003, he was strip searched upon admission into Clinton County Jail on a charge of criminal possession of marijuana in the fourth degree, a class A misdemeanor. See New York Penal Law § 221.15. Mr. Bachman’s affidavit is accompanied by an affirmation from one of plaintiff’s attorneys, Bruce E. Menken, Esq., stating that he has been retained by Mr. Bachman and that Mr. Bachman has agreed to undertake the responsibilities and duties of a class representative.
The Court adopts plaintiff’s proposal that the named plaintiff Phyllis A. Mitchell should represent Class A and that a person whose claim arose after October 24, 2003 should intervene as a representative plaintiff for Class B. This is particularly desirable because, in view of the conflicting record evidence regarding defendants’ policy and practice prior to the October 24, 2003 memo and the effect of that memo on subsequent policy and practice, certain evidentiary and procedural issues in the two subclasses may diverge as the case proceeds. Because intervention by Mr. Bachman was proposed in plaintiff’s reply papers, defendants have not had an opportunity to respond. Accordingly, the Court directs plaintiff’s counsel to make a formal motion for intervention by Mr. Bachman or some other proposed representative plaintiff for Class B. Presently, the named plaintiff may properly represent the entire class; accordingly, there is no reason to stay the progress of the action.
CONCLUSION
*7 It is therefore
ORDERED that plaintiff’s motion for class certification (Dkt. No. 35) is granted; and it is further
ORDERED that the following two subclasses are certified:
Class A

minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from February 28, 2003 until October 24, 2003. Specifically excluded from the class are defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Class B
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from October 24, 2003 through the date on which the Clinton County Sheriff’s Department and/or the County of Clinton cease or ceased, or are enjoined from, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
and it is further
ORDERED that Phyllis A. Mitchell is appointed representative plaintiff for the entire class pending intervention by a representative for Class B, whereupon Ms. Mitchell shall become the representative plaintiff for Class A; and it is further
ORDERED that plaintiff’s attorneys of record are appointed as class counsel; and it is further
ORDERED that plaintiff shall move formally within 15 days for intervention by Paul Bachman or some other proposed representative plaintiff for Class B, that defendants shall submit any responding papers within 15 days thereafter, and that plaintiff’s reply, if any, shall be submitted within 7 days thereafter.

All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other

IT IS SO ORDERED.
	  

Footnotes

1

Fed.R.Civ.P. 23(a) provides:

Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all

only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common

to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4)

the representative parties will fairly and adequately protect the interests of the class.

5

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2007)

2

There is evidence that the policy and practice of which plaintiff complains ceased in January 2006.

3

Rule 23(b) provides in part:

Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied,

and in addition:

* * *

(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.

4

The fact that the unconstitutionality of the alleged blanket strip search policy is well established does not eliminate the issue as a

factor in determining predominance. Rather, as the Second Circuit has noted, “resolved issues bear on the key question that the

[predominance] analysis seeks to answer: whether the class is a legally coherent unit of representation by which absent class

members may fairly be bound.” Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219, 228 (2d Cir.2006).

5

The issue raised by defendants concerning the timeliness of plaintiff’s counsel’s handling of an offer under Fed.R.Civ.P. 68 does

not affect the Court’s determination. Even assuming arguendo that counsel’s handling of the offer was not in all respects proper, it

is the type of minor matter that arises occasionally in litigation and does not reflect against counsel’s overall competence.

	  

6

 
 Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2008)

2008 WL 85092 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Phyllis A. MITCHELL, both individually and on behalf of a class of others similarly situated, Plaintiff, v.
The COUNTY OF CLINTON; David Favro, both individually and in his official capacity as Sheriff
of the County of Clinton; Jerry Maggy, both individually and as Undersheriff of the County of Clinton; Michael Smith, both individually and as Major in the Clinton County Sheriff’s Department,
Defendants.
No. 8:06-CV-00254. | Jan. 7, 2008.
Attorneys and Law Firms
Cuneo, Gilbert & LaDuca, LLP, Alexandra C. Warren, Esq., of counsel, Charles J. LaDuca, Esq., of counsel, Jonathan W. Cuneo, Esq ., of counsel, Washington, DC, Beranbaum Menken Ben-Asher & Bierman LLP, Jason J. Rozger, Esq., of counsel, Bruce E. Menken, Esq., of counsel, New York, NY, The Mason Law Firm, PLLC, Charles A. Schneider, Esq., of counsel, Gary E. Mason, Esq., of counsel, Washington, DC, The Mason Law Firm, LLP, Alexander E. Barnett, Esq., of counsel, New York, NY, Elmer R. Keach, III, Amsterdam, NY, for Plaintiffs.
Girvin, Ferlazzo, P.C., Gregg T. Johnson, Esq., of counsel, Jacinda Hall Conboy, Esq., of counsel, Scott P. Quesnel, Esq., of counsel, Albany, NY, for Defendants.
Opinion
MEMORANDUM-DECISION AND ORDER
Hon. NORMAN A. MORDUE, Chief Judge.
*1 In this class action, plaintiff moves (Dkt. No. 64) to allow Paul Bachmann to intervene as a representative plaintiff pursuant to Fed.R.Civ.P. 23(d) and 24(b), and for leave to file an amended complaint accordingly. On July 5, 2007, this Court issued a Memorandum-Decision and Order (Dkt. No. 58) certifying the following two subclasses of plaintiffs:
Class A
All persons who were placed into the custody of the

Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from February 28, 2003 until October 24, 2003. Specifically excluded from the class are defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Class B
All persons who were placed into the custody of the Clinton County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Clinton County Jail pursuant to the policy, custom and practice of the Clinton County Sheriff’s Department and the County of Clinton, from October 24, 2003 through the date on which the Clinton County Sheriff’s Department and/or the County of Clinton cease or ceased, or are enjoined from, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
The Court appointed Phyllis A. Mitchell representative plaintiff for the entire class until a representative for Class B could be appointed, whereupon Ms. Mitchell would become the representative plaintiff for Class A. The Court further directed plaintiff to move for intervention by a proposed representative for Class B. This motion followed.
The proposed amended complaint claims that on or about November 9, 2003, Paul Bachmann was arrested and placed in the Clinton County Jail, and that he was strip-searched pursuant to defendants’ unlawful policy. The Court finds that the motion to allow Bachmann to intervene is not untimely; that Bachmann’s claim shares common questions of law and fact with the existing action; that intervention will not unduly delay or prejudice the adjudication of the parties’ rights; and that Bachmann is an adequate representative of Class B. In the exercise of its discretion in conducting a class action under Fed.R.Civ.P. 23(d), the Court grants Bachmann’s motion to intervene pursuant to Fed.R.Civ.P. 24(b).
The Court rejects defendants’ contention that Bachmann cannot properly be permitted to intervene because the statute of limitations has run on his claim. The filing of a
1

Mitchell v. County of Clinton, Not Reported in F.Supp.2d (2008)

class action tolls the statute of limitations as to all asserted members of the class, see generally American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553-54 (1974); thus, inasmuch as Bachmann’s claim was viable when this action was commenced on February 28, 2006, it is not time-barred. The other objections raised by defendants lack merit.
*2 It is therefore
ORDERED that plaintiff’s motion (Dkt. No. 64) to allow Paul Bachmann to intervene as representative of Class B and for leave to serve an amended complaint is granted; and it is further
ORDERED that hereinafter the caption shall read:
Phyllis A. Mitchell and Paul Bachmann, both individually and on behalf of a class of others similarly situated, Plaintiffs,

-v-
8:06-CV-254
The County of Clinton, David Favro, both individually and in his official capacity as Sheriff of the County of Clinton, Jerry Maggy, both individually and as Undersheriff of the County of Clinton, and Michael Smith, both individually and as Major in the Clinton County Sheriff’s Department, Defendants.
and the Clerk is directed to modify the docket report accordingly.
IT IS SO ORDERED.
	  

2

 
 Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 1 of 16
CLOSED,CONSENT
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 5.1.1]
(Plattsburgh) CIVIL DOCKET FOR CASE #: 8:06−cv−00254−DRH

Mitchell v. The County of Clinton et al Assigned to: Magistrate Judge David R. Homer Cause: 42:1983 Civil Rights Act
Plaintiff Phyllis A. Mitchell both individually and on behalf of a class of others similarly situated

Date Filed: 02/28/2006 Date Terminated: 12/04/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexandra C. Warren Cuneo, Gilbert Law Firm − DC Office 507 C Street, N.E. Washington, DC 20002 202−789−3960 Fax: 202−789−1813 Email: awarren@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bethany Schumann−McGhee Office of Bethany Schumann−McGhee 2465 Riverfront Center Amsterdam, NY 12010 518−842−4228 Fax: 888−842−1286 Email: bethany@bsmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E. Menken Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: bmenken@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. LaDuca Cuneo, Gilbert Law Firm − MD Office 8120 Woodmont Avenue Suite 810 Bethesda, MD 20814 202−789−3960 Fax: 202−789−1813 Email: charlesl@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles A. Schneider Whitfield, Bryson Law Firm − DC Office 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036 202−429−2290 Fax: 202−429−2294 Email: cschneider@masonlawdc.com LEAD ATTORNEY

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 2 of 16
ATTORNEY TO BE NOTICED
Elmer R. Keach , III Office of Elmer R. Keach, III 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 518−434−1718 Fax: 518−770−1558 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Mason Whitfield, Bryson Law Firm − DC Office 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036 202−429−2290 Fax: 202−429−2294 Email: gmason@wbmllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Rozger Beranbaum, Menken Law Firm 80 Pine Street, 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: jrozger@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan W. Cuneo Cuneo, Gilbert Law Firm − DC Office 507 C Street, N.E. Washington, DC 20002 202−789−3960 Fax: 202−789−1813 Email: jonc@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander E. Barnett Parker, Waichman Law Firm − Great Neck Office 111 Great Neck Road Great Neck, NY 11021 212−362−6174 Fax: 917−591−5227 Email: abarnett20@hotmail.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Paul Bachmann

represented by Jason J. Rozger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bethany Schumann−McGhee (See above for address)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 3 of 16
ATTORNEY TO BE NOTICED
Elmer R. Keach , III (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The County of Clinton
Defendant David Favro both individually and in his official capacity as Sheriff of the County of Clinton TERMINATED: 06/12/2009
Defendant Jerry Maggy both individually and as Undersheriff of the County of Clinton TERMINATED: 06/12/2009
Defendant Michael Smith both individually and as Major in the Clinton County Sheriff's Department TERMINATED: 06/12/2009

represented by Gregg T. Johnson Lemire, Johnson Law Firm P.O. Box 2485 2534 Route 9 Malta, NY 12020 518−899−5700 Fax: 518−899−5487 Email: gtj@lemirejohnsonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregg T. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregg T. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregg T. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/28/2006 02/28/2006 02/28/2006 03/14/2006
03/23/2006

# Docket Text
1 COMPLAINT against Jerry Maggy, Michael Smith, The County of Clinton, David Favro ( Filing fee $ 250 receipt number ALB002044) filed by Phyllis A. Mitchell.(ban) (Entered: 02/28/2006)
Summons Issued as to Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (ban) (Entered: 02/28/2006)
2 G.O. 25 FILING ORDER ISSUED Initial Conference set for 6/21/2006 11:00 AM in Albany before Magistrate Judge David R. Homer. Civil Case Management Plan due by 6/12/2006. (ban) (Entered: 02/28/2006)
3 SUMMONS Returned Executed by Phyllis A. Mitchell. Jerry Maggy served on 3/7/2006, answer due 3/27/2006; Michael Smith served on 3/7/2006, answer due 3/27/2006; The County of Clinton served on 3/7/2006, answer due 3/27/2006; David Favro served on 3/7/2006, answer due 3/27/2006. (Keach, Elmer) (Entered: 03/14/2006)
4 STIPULATION Extending Defendants' Time to Respond to Complaint by Jerry Maggy, Michael Smith, The County of Clinton, David Favro submitted to Judge Homer. (Johnson, Gregg) (Entered: 03/23/2006)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 4 of 16

03/24/2006
03/27/2006 04/14/2006 04/14/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 05/10/2006 06/22/2006
06/22/2006 06/22/2006 06/22/2006
08/08/2006 08/09/2006 08/09/2006 08/10/2006 08/11/2006

5 STIPULATION AND ORDER to extend Defts answer deadline; Answer due date updated for Jerry Maggy answer due 4/14/2006; Michael Smith answer due 4/14/2006; The County of Clinton answer due 4/14/2006; David Favro answer due 4/14/2006. Signed by Judge David R. Homer on 3/24/06. (sfp, ) (Entered: 03/27/2006)
Clerk traditionally served 5 Stip/Order upon non−ecf parties. (sfp, ) (Entered: 03/27/2006)
6 ANSWER to Complaint by Jerry Maggy, Michael Smith, The County of Clinton, David Favro.(Johnson, Gregg) (Entered: 04/14/2006)
7 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro re 6 Answer to Complaint (Johnson, Gregg) (Entered: 04/14/2006)
8 NOTICE of Appearance by Gregg T. Johnson on behalf of all defendants (Johnson, Gregg) (Entered: 04/17/2006)
9 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro of Notice of Appearance (Johnson, Gregg) (Entered: 04/17/2006)
10 NOTICE of Appearance by Jacinda Hall Conboy on behalf of all defendants (Conboy, Jacinda) (Entered: 04/17/2006)
11 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro of Notice of Appearance (Conboy, Jacinda) (Entered: 04/17/2006)
12 CIVIL CASE MANAGEMENT PLAN by Phyllis A. Mitchell. (Keach, Elmer) (Entered: 05/10/2006)
Minute Entry for proceedings held before Judge David R. Homer. A Rule 16 Scheduling Conference was held on 6/21/2006. Appearances: Bob Keach for plaintiff; Gregg Johnson for defendants. The deadline for filing a motion for class certification was set for 1/15/07 and the pretrial deadlines were set. A status conference will be held on 11/29/06 to resolve any discovery issues and discuss the possibility of settlement. (lah, ) (Entered: 06/22/2006)
13 ORDER that any motion for class certification by pltf shall be filed and served on or before 1/15/07. Signed by Judge David R. Homer on 6/22/06. (wjg, ) (Entered: 06/22/2006)
14 ORDER TO SHOW CAUSE why defts should not be compelled to obtain separate counsel .(wjg, ) (Entered: 06/22/2006)
15 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 15 days (jury trial; no date specified). Preferred Trial Location: Syracuse. Joinder of Parties due by 8/1/2006. Amended Pleadings due by 8/1/2006. Discovery due by 4/1/2007. Motions to be filed by 6/1/2007. The parties have opted out of the ADR program. Signed by Judge David R. Homer on 6/22/06. (wjg, ) (Entered: 06/22/2006)
Filing fee for Pro Hac Vice Admission of Alexandra Coler, Esq.: $ 30.00, receipt number ALB002663 (wbl, ) (Entered: 08/10/2006)
16 ORDER approving defts' waiver of potential conflict. Signed by Judge David R. Homer on 8/9/06. (wjg, ) (Entered: 08/10/2006)
20 MOTION for Limited Admission Pro Hac Vice of Alexandra Coler, Esq. by Phyllis A. Mitchell.(wbl, ) (Entered: 08/10/2006)
21 ORDER granting 20 Motion for Limited Admission Pro Hac Vice of Alexandra Coler, Esq.. Signed by Judge David R. Homer on 8/10/06. (wbl, ) (Entered: 08/11/2006)
CLERK'S CORRECTION OF DOCKET ENTRY. Docket entry no. 21 has been deleted. Notice was entered in wrong case. (lah, ) (Entered: 08/11/2006)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 5 of 16

08/30/2006 10/02/2006 10/04/2006
10/06/2006
10/11/2006 10/16/2006
10/16/2006 11/28/2006 11/30/2006
11/30/2006 12/07/2006 01/11/2007 01/12/2007 01/26/2007 01/29/2007 01/29/2007

22 NOTICE of Appearance by Alexandra Coler on behalf of Phyllis A. Mitchell (Coler, Alexandra) (Entered: 08/30/2006)
23 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Non−Dispositive Motion Conference submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 10/02/2006)
24 TEXT NOTICE. A pre−motion conference will be held on Thursday, October 12, 2006 at 10:30 a.m. before Hon. David R. Homer, USMJ, pursuant to the letter/request of plaintiff's counsel dated 10/2/06. The conference will be in−person in Judge Homer's chambers. (lah, ) (Entered: 10/04/2006)
25 TEXT NOTICE: Please note the conference on 10/12/06 before Hon. David R. Homer, USMJ, will take place at 11:00 a.m. rather than the previously time set for 10:30 a.m. Please mark your calendars accordingly. Out−of−town counsel may participate by telephone. (lah, ) (Entered: 10/06/2006)
26 LETTER BRIEF in Response to Plaintiff's Request for non−dispositive motion conference by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Johnson, Gregg) (Entered: 10/11/2006)
Minute Entry for proceedings held before Judge David R. Homer. A Pre−Motion Conference was held on 10/12/2006 with counsel for all parties. Plaintiff requested leave to file motion seeking to strike or preclude enforcement of offers made by defendants. Plaintiff's request was granted. A written order will be entered. (lah, ) (Entered: 10/16/2006)
27 ORDER granting 23 Letter Request, giving pltf leave to file non−dispositive motion . Signed by Judge David R. Homer on 10/16/06. (wjg, ) (Entered: 10/17/2006)
28 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Discovery conference submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 11/28/2006)
Minute Entry for proceedings held before Judge David R. Homer. A Status/Discovery Conference was held on 11/29/2006 with Bob Keach for plaintiff and Gregg Johnson for defendants. A written order will be entered directing the parties to respond to outstanding discovery demands. (lah, ) (Entered: 11/30/2006)
29 ORDER that responses of all parties to outstanding discovery demands as well as all FRCP 26(a)(1) disclosures shall be made on or before 12/8/06. Signed by Judge David R. Homer on 11/29/06. (wjg, ) (Entered: 12/01/2006)
30 STATUS REPORT ORDER/NOTICE.Status Report due by 12/21/2006. Signed by Judge David R. Homer on 12/7/06. (ban) (Entered: 12/07/2006)
31 Letter Motion from Elmer Robert Keach for Phyllis A. Mitchell requesting enlargement of time to file motion for class certification submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 01/11/2007)
32 ORDER granting 31 Letter Request, pltf's motion for class certification to be filed on or before 1/29/07. Signed by Judge David R. Homer on 1/12/07. (wjg, ) (Entered: 01/12/2007)
33 Letter Motion from Gregg T. Johnson for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Execute a Protective Order submitted to Judge Homer. (Johnson, Gregg) (Entered: 01/26/2007)
34 PROTECTIVE ORDER on Stipulation. Signed by Judge David R. Homer on 1/29/07. (wjg, ) (Entered: 01/29/2007)
35 MOTION to Certify Class Motion Hearing set for 3/7/2007 10:00 AM in Syracuse before Chief Judge Norman A. Mordue.,Response to Motion due by 2/20/2007,Reply to Response to Motion due by 2/26/2007. by Phyllis A. Mitchell. (Attachments: # 1 Memorandum of Law # 2 Affirmation of Jason Rozger# 3 Exhibit(s) A, Complaint# 4 Exhibit(s) B, Plaintiff deposition transcript# 5 Exhibit(s) C, Plaintiff charging documents# 6 Exhibit(s) D, Latulipe deposition transcript# 7 Exhibit(s) E, Glarneau deposition transcript# 8 Exhibit(s) F, Clukey

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 6 of 16

01/31/2007
02/08/2007 02/09/2007 02/09/2007 02/12/2007 02/14/2007
02/28/2007 03/01/2007 03/05/2007 03/06/2007 03/06/2007
03/06/2007

deposition transcript# 9 Exhibit(s) G, admissions policy# 10 Exhibit(s) H, Strip Search policy# 11 Exhibit(s) I, 30(b)(6) deposition transcript# 12 Exhibit(s) J, October 2003 memo# 13 Exhibit(s) K, revised admissions policy# 14 Exhibit(s) L, revised search policy# 15 Exhibit(s) M, Spinner v. City of New York# 16 Exhibit(s) N, Eddleman v. Jefferson County# 17 Exhibit(s) O, Haney v. Miami Date County# 18 Exhibit(s) P, Mclean v. Merrifield# 19 Exhibit(s) Q, In re Cigna# 20 Exhibit(s) R, In re Plastics Additives) (Rozger, Jason) (Entered: 01/29/2007)
TEXT NOTICE as to the 35 MOTION to Certify Class. The motion is returnable on 3/7/07 before Chief Judge Mordue on submit with NO appearances necessary. Response to Motion due by 2/20/2007. Reply to Response to Motion due by 2/26/2007. Counsel is directed to send a courtesy copy of the motion to Judge Mordue's chambers. (jlr) (Entered: 01/31/2007)
36 Letter Motion from Elmer Robert Keach III for Phyllis A. Mitchell requesting discovery conference with the Court submitted to Judge Homer. (Keach, Elmer) (Entered: 02/08/2007)
37 LETTER BRIEF in response to Plaintiff's request for discovery conference by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Johnson, Gregg) (Entered: 02/09/2007)
38 Letter Motion from Gregg T. Johnson for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Extension of time to respond to Class Certification Motion submitted to Judge Mordue. (Johnson, Gregg) (Entered: 02/09/2007)
39 ORDER denying w/out prejudice 36 Letter Request. Signed by Judge David R. Homer on 2/12/07. (wjg, ) (Entered: 02/12/2007)
TEXT ORDER granting the 38 Letter Motion from Gregg T. Johnson for Jerry Maggy, Michael Smith, The County of Clinton, and David Favro requesting Extension of time to respond to 35 Class Certification Motion submitted to Judge Mordue. Motion Hearing is reset for 3/21/2007 before Chief Judge Norman A. Mordue. The motion will be on submit with no appearances necessary. Response to Motion due by 3/6/2007. Reply to Response to Motion due by 3/13/2007.Endorsed by Judge Norman A. Mordue on 2/14/07. Counsel is directed to submit a courtesy copy of the motion papers to Judge Mordue's chambers. (jlr) (Entered: 02/14/2007)
40 Letter Motion from Jason Rozger for Phyllis A. Mitchell requesting extension of discovery deadline from April 1, 2007 to June 1, 2007 submitted to Judge Homer. (Rozger, Jason) (Entered: 02/28/2007)
41 ORDER granting 40 Letter Request, Discovery ddl reset to 6/1/2007. Signed by Judge David R. Homer on 3/1/07. (wjg, ) (Entered: 03/01/2007)
42 Letter Motion from Gregg T. Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting permission to file a 35−page brief submitted to Judge Norman A. Mordue. (Attachments: # 1 Appendix Certificate of Service)(Johnson, Gregg) (Entered: 03/05/2007)
TEXT ORDER granting the 42 Letter Request to file an oversized memoranda of law (35) pages in reponse to the motion to certify. Endorsed by Judge Norman A. Mordue on 3/6/07. (jlr/am) (Entered: 03/06/2007)
43 AFFIDAVIT in Opposition re 35 MOTION to Certify Class Affidavit of Gregg T. Johnson, Esq. filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) A − Affidavits of 46 Correction Officers# 2 Exhibit(s) B − Relevant pages of Plaintiff's EBT transcript# 3 Exhibit(s) C − Pages 76−77 of Plaintiff's EBT transcript# 4 Exhibit(s) D − Relevant pages from Plaintiff's Response to Defendants' 1st Set of Interrogatories)(Quesnel, Scott) (Entered: 03/06/2007)
44 AFFIDAVIT in Opposition re 35 MOTION to Certify Class Affidavit of Def. David Favro filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) A − CCJ Policy/Procedure No. C−102# 2 Exhibit(s) B − CCC Policy/Procedure D−221# 3 Exhibit(s) C − 10/24/03 Policy Revision# 4 Exhibit(s) D − CCJ Policy/Procedure B−01# 5 Exhibit(s) E − CCJ

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 7 of 16

03/06/2007
03/06/2007
03/06/2007
03/06/2007 03/12/2007 03/13/2007
03/20/2007
03/20/2007 03/21/2007 03/23/2007 05/08/2007 05/10/2007

Policy/Procedure G−50)(Quesnel, Scott) (Entered: 03/06/2007)
45 AFFIDAVIT in Opposition re 35 MOTION to Certify Class Affidavit of Def. Jerry Maggy filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) A − CCJ Policies/Procedures C−102# 2 Exhibit(s) B − CCJ Policies/Procedures D−221# 3 Exhibit(s) C − 10/24/03 Policy Revision Memo# 4 Exhibit(s) D − CCJ Policies/Procedures B−01# 5 Exhibit(s) E − CCJ Policies/Procedures G−50)(Quesnel, Scott) (Entered: 03/06/2007)
46 AFFIDAVIT in Opposition re 35 MOTION to Certify Class Affidavit of Def. Michael Smith filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) A − Photographs# 2 Exhibit(s) B − CCJ Policies/Procedures C102# 3 Exhibit(s) C − CCJ Policies/Procedures D−221# 4 Exhibit(s) D − 10/24/03 Policy Revision Memo# 5 Exhibit(s) E − CCJ Policies/Procedures B−01# 6 Exhibit(s) F − CCJ Policies/Procedures G−50)(Quesnel, Scott) (Entered: 03/06/2007)
47 MEMORANDUM OF LAW re 35 Motion to Certify Class,,,, in Opposition to Motion filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Appendix Unreported Case − Augustin v. Jablonsky# 2 Appendix Unreported Case − Kelsey v. Schoharie# 3 Appendix Unreported Case − Spinner v. New York City# 4 Appendix Unreported Case − Bryant v. Bonded Accounts Services)(Quesnel, Scott) (Entered: 03/06/2007)
48 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro re 43 Affidavit in Opposition to Motion,, 44 Affidavit in Opposition to Motion, 45 Affidavit in Opposition to Motion, 47 Memorandum of Law, 46 Affidavit in Opposition to Motion, with exhibits attached thereto (Quesnel, Scott) (Entered: 03/06/2007)
49 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Enlargement of Time to File Reply Brief and Leave to File Overlength Brief submitted to Judge Norman A. Mordue. (Keach, Elmer) (Entered: 03/12/2007)
TEXT ORDER granting in part and denying in part the 49 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Enlargement of Time to File Reply Brief and Leave to File Overlength Brief. Reply to Response to Motion is extended 1 week and is due by 3/20/2007. The reply shall be no more than 20 pages in length. Endorsed by Judge Norman A. Mordue on 3/13/07. (jlr/am) (Entered: 03/13/2007)
50 REPLY to Response to Motion re 35 MOTION to Certify Class filed by Phyllis A. Mitchell. (Attachments: # 1 Exhibit(s) A to Keach Affirmation −− Defendants' Rule 68 Offer# 2 Exhibit(s) B to Keach Affirmation −− 10.2.06 letter from Elmer Keach to Hon. David R. Homer# 3 Exhibit(s) C to Keach Affirmation −− Sheriff's Department Memorandum# 4 Exhibit(s) D to Keach Affirmation −− Tyson Bench Decision# 5 Affirmation Bruce Menken Afffirmation# 6 Exhibit(s) A to Menken Affirmation −− Paul Bachman Affidavit)(Keach, Elmer) (Entered: 03/20/2007)
51 REPLY to Response to Motion re 35 MOTION to Certify Class Memo of Law filed by Phyllis A. Mitchell. (Keach, Elmer) (Entered: 03/21/2007)
52 AMENDED REPLY to Response to 35 MOTION to Certify Class Memorandum of Law Corrected to Include Cover Pages filed by Phyllis A. Mitchell. (Keach, Elmer). (Entered: 03/21/2007)
53 NOTICE by Phyllis A. Mitchell of Change of Firm Name and Address for Alexander E. Barnett and Change of Firm Name for Gary E. Mason (Barnett, Alexander) (Entered: 03/23/2007)
54 Letter Motion from Gregg T. Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Extension of discovery deadline for deposition purposes submitted to Judge Homer. (Johnson, Gregg) (Entered: 05/08/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Telephone Conference was held on 5/9/2007 pursuant to the letter request of defendants [#54] seeking an extension of the discovery deadline. The court granted the request and

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 8 of 16

05/11/2007 06/20/2007
06/25/2007 06/26/2007 07/05/2007
07/09/2007 07/10/2007
07/10/2007 07/10/2007 07/11/2007 07/11/2007 07/12/2007

the pretrial deadlines were extended. A written order will be entered. (lah, ) (Entered: 05/10/2007)
55 ORDER granting 54 Letter Request and amending UPSO: Discovery due by 8/1/2007.,Dispositive Motions to be filed by 10/1/2007.,Trial Ready Deadline is 11/1/2007. Signed by Judge David R. Homer on 5/10/07. (wjg, ) (Entered: 05/14/2007)
56 Letter Motion from Jason Rozger for Phyllis A. Mitchell requesting Discovery conference submitted to Judge David R. Homer. (Attachments: # 1 Exhibit(s) A, correspondence between counsel# 2 Exhibit(s) B, correspondence between counsel# 3 Exhibit(s) C, affidavit of Paul Bachmann# 4 Exhibit(s) D, affidavit of Brian Bombard# 5 Exhibit(s) E, corrspondence between counsel# 6 Exhibit(s) F, correspondence between counsel# 7 Exhibit(s) G, correspondence between counsel# 8 Exhibit(s) H, correspondence between counsel# 9 Exhibit(s) I, deposition notices# 10 Exhibit(s) J, correspondence between counsel# 11 Exhibit(s) K, corrspondence between counsel)(Rozger, Jason) (Entered: 06/21/2007)
57 RESPONSE TO LETTER BRIEF filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro as to 56 Letter Request/Motion,, filed by Phyllis A. Mitchell. (Johnson, Gregg) (Entered: 06/25/2007)
TEXT NOTICE. A telephone discovery conference will be held on 7/3/2007 at 9:30 a.m. with Hon. David R. Homer, USMJ, pursuant to the letter request of plaintiff's counsel dated 6/20/2007 [#56]. Chambers will initiate the telephone conference call. (lah, ) (Entered: 06/26/2007)
58 MEMORANDUM−DECISION AND ORDER granting 35 Motion to Certify Class; appointing Phyllis Mitchell respresentative plaintiff for the entire class pending intervention by a representative for Class B; appointing Pltf's attorneys of record as class counsel; Pltf shall move w/in 15 days for intervention by Paul Bachman or other respresentative for Class B, Deft shall respond w/in 15 days thereafter, Pltf's reply, if any, shall be filed w/in 7 days thereafter. Signed by Judge Norman A. Mordue on 7/5/07. (amt, ) (Entered: 07/05/2007)
59 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Discovery Conference submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 07/09/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Telephone Conference was held on 7/3/2007 pursuant to plaintiff's letter/request [#56]. The parties reported all issues resolved except for the production of inmate files at defendants' expense. It was agreed that the documents would be made available for inspection at Clinton C.F. and any copying expenses to be paid by defendants. A written order will be entered. (lah, ) (Entered: 07/10/2007)
TEXT NOTICE. A telephone discovery conference will be held on July 11, 2007 at 11:00 a.m. re 59 Letter Motion from plaintiff requesting discovery conference submitted to Judge David R. Homer. Chambers will initiate the telephone conference. (lah, ) (Entered: 07/10/2007)
60 Letter Motion from Gregg Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Response to Plaintiff's Request for Sanctions submitted to Judge Homer. (Johnson, Gregg) (Entered: 07/10/2007)
61 ORDER on 56 Letter Request re: discovery conference &issue of request for copies. Signed by Judge David R. Homer on 7/10/07. (wjg, ) (Entered: 07/11/2007)
62 NOTICE of Appearance by Alexander E. Barnett on behalf of Phyllis A. Mitchell (Barnett, Alexander) (Entered: 07/11/2007)
63 ORDER on 59 Letter Request, that the subpoena for records issued by defts to pltf's employer is modified to require the production of time−and−attendance records of the pltf for the period from 1/1/03 through 12/31/04 and, as so modified and limited, pltf's request for an order quashing the subpoena is denied. Signed by Judge David R. Homer on 7/11/07. (wjg, ) (Entered: 07/12/2007)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 9 of 16

07/12/2007 07/12/2007 07/20/2007 07/23/2007 07/24/2007 07/26/2007 07/26/2007 07/30/2007 08/01/2007 08/02/2007
08/03/2007 08/06/2007
08/14/2007

TEXT NOTICE. A SETTLEMENT CONFERENCE will be held with Hon. David R. Homer, USMJ, on September 10, 2007 at 10:30 a.m. with attorneys only. Clients may attend but personal appearance is not required for this conference. (lah, ) (Entered: 07/12/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Discovery Hearing was held on 7/11/2007 with counsel for all parties pursuant to the letter request from plaintiff seeking order to quash a certain subpoena. Arguments were heard. The court directed the subpoena to be modified and the request to quash the subpoena was denied. A written order issued. (lah, ) (Entered: 07/12/2007)
64 MOTION to Intervene Motion Hearing set for 9/5/2007 10:00 AM in Syracuse before Chief Judge Norman A. Mordue.,Response to Motion due by 8/20/2007 by Phyllis A. Mitchell. (Attachments: # 1 Memorandum of Law # 2 Affirmation of Bruce Menken# 3 Proposed Amended Pleading) Motions referred to David R. Homer. (Rozger, Jason) (Entered: 07/20/2007)
TEXT NOTICE of the 64 MOTION to Intervene. The Response to Motion due by 8/6/2007 (15 days); and any Reply to Response to Motion is due by 8/14/2007. Motion Hearing set for 8/15/2007 on submit with no appearances necessary before Chief Judge Norman A. Mordue. (jlr) (Entered: 07/23/2007)
65 Letter Motion from Jason Rozger for Phyllis A. Mitchell requesting Extension of Discovery Deadline submitted to Judge Homer. (Attachments: # 1 Exhibit(s) A, Plaintiffs' Second Request for the Production of Documents# 2 Exhibit(s) B, Letter from Defendants' Counsel)(Rozger, Jason) (Entered: 07/24/2007)
66 STATUS REPORT by Phyllis A. Mitchell. (Keach, Elmer) (Entered: 07/26/2007)
67 Letter Motion from Gregg Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Consideration of Defendants' Response to Plaintiff's Letter Request submitted to Judge Homer. (Johnson, Gregg) (Entered: 07/26/2007)
NOTICE re 65 Letter Motion from plaintiff requesting Extension of Discovery Deadline. A telephone conference will be held on−the−record on 8/2/2007 at 10:30 a.m. with Hon. David R. Homer, USMJ. Chambers will initiate the conference call. (lah, ) (Entered: 07/30/2007)
Paid 2007 Biennial Fee $30, receipt number 821291. (Barnett, Alexander) (Entered: 08/01/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Telephone Status Conference was held on−the−record on 8/2/2007 with Bruce Menken and Jason Rozger for plaintiffs and Gregg Johnson for defendants. Discovery was extended to September 10. A written order will be entered. A settlement conference with attorneys only remains in place for 9/10/2007. The court directed that the class representatives for the two classes be available by telephone. (lah, ) (Entered: 08/02/2007)
68 ORDER granting 65 Letter Request for deadline extension, ; granting 67 Letter Request for conference, Discovery due by 9/10/2007. Signed by Judge David R. Homer on 8/2/07. (tab) (Entered: 08/03/2007)
69 RESPONSE in Opposition re 64 MOTION to Intervene filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) Exhibit A to Quesnel Affidavit# 2 Exhibit(s) Exhibit B to Quesnel Aff# 3 Exhibit(s) Exhibit C to Quesnel Aff# 4 Exhibit(s) Exhibit D to Quesnel Aff# 5 Memorandum of Law # 6 Supplement Certificate of Service)(Quesnel, Scott) (Entered: 08/06/2007)
70 RESPONSE in Support re 64 MOTION to Intervene Paul Bachmann as class representative filed by Phyllis A. Mitchell. (Attachments: # 1 Affirmation of Jason J. Rozger# 2 Exhibit(s) A, Paul Bachmann deposition transcript excerpts# 3 Exhibit(s) B, Paul Bachmann booking documents)(Rozger, Jason) (Entered: 08/14/2007)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 10 of 16

08/21/2007 08/30/2007 08/31/2007 09/04/2007 09/04/2007 09/04/2007 09/12/2007
09/12/2007 09/24/2007 09/25/2007 10/10/2007 11/13/2007
11/15/2007 11/15/2007

Administrative note: Motions No Longer Referred to magistrate (motion still pending before district judge) re: 64 MOTION to Intervene (wjg, ) (Entered: 08/21/2007)
71 Letter Motion from Jason Rozger for Phyllis A. Mitchell requesting Discovery conference submitted to Judge Homer. (Attachments: # 1 Exhibit(s) A, 8/21/07 letter from Defendants' counsel# 2 Exhibit(s) B, 8/29/ 07 email from Defendants' counsel# 3 Exhibit(s) C, 7/5/07 letter from Defendants' counsel)(Rozger, Jason) (Entered: 08/30/2007)
NOTICE re 71 Letter Motion from Jason Rozger requesting conference submitted to Judge Homer. A telephone discovery conference will be held with Judge Homer on September 4, 2007 at 2:30 p.m. Chambers will initiate the conference call. (lah, ) (Entered: 08/31/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Discovery Conference was held on 9/4/2007 with Jason Rozger for plaintiff and Gregg Johnson for defendants pursuant to the letter request of plaintiff's counsel 71 . Rulings were made and a written order will be entered. (lah, ) (Entered: 09/04/2007)
TEXT NOTICE as to the 64 MOTION to Intervene. The motion is returnable on 9/5/07 before Chief Judge Mordue. The motion is on submit with no appearances necessary. (jlr) (Entered: 09/04/2007)
72 ORDER granting 71 Letter Request and setting terms of disclosure regarding discovery issues. Signed by Judge David R. Homer on 9/4/07. (tab) (Entered: 09/05/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Settlement Conference was held on 9/10/2007 with Bruce Menken, Jason Rozger and Bob Keach for plaintiffs. The individual defendants were present along with their counsel, Gregg Johnson and Scott Quesnew. No settlement was reached. There was further discussion regarding potential conflicts of interest brought upon by the creation of two separate classes. It may become necessary in the near future to address these potential conflicts of interest. (lah, ) (Entered: 09/12/2007)
73 NOTICE of Appearance by Scott P. Quesnel on behalf of all defendants (Attachments: # 1 Supplement Certificate of Service)(Quesnel, Scott) (Entered: 09/12/2007)
74 Letter Motion from Gregg T. Johnson for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Extension of Deadline for Dispositive Motion submitted to Judge Homer. (Johnson, Gregg) (Entered: 09/24/2007)
75 ORDER granting 74 Letter Request, Dispositive Motions to be filed by 12/1/2007. Signed by Judge David R. Homer on 9/25/07. (wjg, ) (Entered: 09/27/2007)
76 MANDATE of USCA: The petition is DENIED because an immediate appeal is unwarranted. (dmf) (Entered: 10/10/2007)
77 Letter Motion from Scott P. Quesnel for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Court intervention on a discovery dispute submitted to Judge Homer. (Attachments: # 1 Exhibit(s) Ex A − Bachmann Affid# 2 Exhibit(s) Ex B − Relevant portions of Bachmann transcript# 3 Exhibit(s) Ex C − Relevant portions of amended complaint# 4 Exhibit(s) Ex D Relevant portion of Pls response# 5 Exhibit(s) Ex E − Defs Exceptions Letter# 6 Exhibit(s) Ex F Pls response# 7 Exhibit(s) Ex G − Relevant portion of Defs Doc Demand)(Quesnel, Scott) (Entered: 11/13/2007)
TEXT NOTICE re 77 Letter Motion from Scott P. Quesnel requesting Court intervention on a discovery dispute submitted to Judge Homer. A Telephone Discovery Conference will be held on NOVEMBER 19, 2007 at 2:30 PM with Magistrate Judge Homer. The court will initiate the conference call. (lah, ) (Entered: 11/15/2007)
78 LETTER BRIEF in Opposition to Defendants' Request for Production by Phyllis A. Mitchell. (Rozger, Jason) (Entered: 11/15/2007)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 11 of 16

11/19/2007 11/19/2007
11/21/2007 11/26/2007 11/27/2007 11/28/2007 11/29/2007
11/29/2007 11/30/2007 12/03/2007 12/20/2007 12/20/2007
12/21/2007 01/03/2008 01/04/2008

79 Letter Motion from Gregg T. Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Permission to file oversize brief submitted to Judge Mordue. (Johnson, Gregg) (Entered: 11/19/2007)
ORDER granting the 79 Letter Motion from Gregg T. Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Permission to file oversize memorandum of law (no more than 40 pages) in support of the motion for summary judgment to be filed on or before December 1, 2007. Endorsed by Judge Norman A. Mordue on 11/19/07. (jlr/am) (Entered: 11/19/2007)
80 ORDER GRANTING 77 Letter Request; PLAINTIFFS SHALL SERVE DEFENDANTS WITH THEIR PORTION OF RECORDS OF TREATMENT ON OR BEFORE DECEMBER 14, 2007. Signed by Judge David R. Homer on 11/21/2007. (tm) (Entered: 11/21/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Discovery Conference was held on−the−record on 11/19/2007 with counsel for all parties. The plaintiffs were seeking certain medical records. The court directed production of certain records. A written order was entered. (lah, ) (Entered: 11/26/2007)
81 Letter Motion from Elmer Keach for Phyllis A. Mitchell requesting Discovery Conference submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 11/27/2007)
82 RESPONSE TO LETTER BRIEF filed by Jerry Maggy, Michael Smith, The County of Clinton, David Favro as to 81 Letter Request/Motion filed by Phyllis A. Mitchell. (Quesnel, Scott) (Entered: 11/28/2007)
Minute Entry for proceedings held before Judge David R. Homer. A Discovery Conference was held on−the−record on 11/29/2007 with Bob Keach for plaintiffs and Scott Quesnel for defendants. Plaintiff requested production of certain records from Clinton County C.F. in electronic form 81 . From the conference, the court directed defendants to contact Renss. Co. C.F. regarding its computer process for extracting booking records in electronic form and to permit plaintiffs' counsel to work together with Clinton Co. C.F. to explore possible methods of extracting booking records in electronic format. A written order with deadlines will be entered. (lah, ) (Entered: 11/29/2007)
84 ORDER re Discovery Hearing. Signed by Judge David R. Homer on 11/29/07. (tab) (Entered: 11/30/2007)
83 Letter Motion from Gregg T. Johnson for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting An extension of the impending motion deadline submitted to Judge Homer. (Johnson, Gregg) (Entered: 11/30/2007)
85 ORDER GRANTING 83 Letter Request, Motion Filing Deadline Reset for 2/1/2008. Signed by Judge David R. Homer on 12/3/2007. (tm) (Entered: 12/03/2007)
86 STATUS REPORT as to electronic data/information/records by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Appendix Certificate of Service)(Johnson, Gregg) (Entered: 12/20/2007)
87 Letter Motion from Scott P. Quesnel, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Court's consideration of proposed Protective Order on Stipulation submitted to Judge David R. Homer. (Attachments: # 1 Proposed Order/Judgment Proposed Protective Order on Stipulation# 2 Appendix Certificate of Service)(Quesnel, Scott) (Entered: 12/20/2007)
88 ORDER granting 87 STIPULATION for Protective Order. Signed by Judge David R. Homer on 12/21/07. (tab) (Entered: 12/26/2007)
89 STATUS REPORT regarding electronic inmate data by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Johnson, Gregg) (Entered: 01/03/2008)
90 Letter Motion from Elmer Robert Keach, III for Phyllis A. Mitchell requesting regarding Electronic Booking Records submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 01/04/2008)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 12 of 16

01/07/2008 01/09/2008 01/09/2008 01/11/2008 01/11/2008 01/14/2008 01/14/2008 01/22/2008 01/22/2008 01/23/2008
01/23/2008 01/23/2008 01/31/2008 01/31/2008

91 ORDER granting the 64 Motion to Intervene and leave to serve an amended complaint is granted. Signed by Judge Norman A. Mordue on 1/7/08. (jlr) (Entered: 01/07/2008)
92 Letter Motion from Elmer Keach for Phyllis A. Mitchell, Paul Bachmann requesting Discovery Conference with the Court Regarding Defendants' Failure to Comply with Court Order submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 01/09/2008)
TEXT NOTICE re 92 Letter Motion from Elmer Keach for Phyllis A. Mitchell, Paul Bachmann requesting Discovery Conference with the Court Regarding Defendants' Failure to Comply with Court Order submitted to Judge David R. Homer. A discovery conference will be held on−the−record with Judge Homer on JANUARY 14, 2008 at 9:30 AM. (lah, ) (Entered: 01/09/2008)
93 LETTER BRIEF in response to Plaintiffs' request for discovery conference by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Appendix 1/8/08 letter to Plaintiffs' counsel# 2 Appendix Attachment to 1/8/08 letter to Plaintiffs' counsel# 3 Appendix Plaintiff's 1/8/08 email response)(Johnson, Gregg) (Entered: 01/11/2008)
94 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro re 93 LETTER BRIEF, (Johnson, Gregg) (Entered: 01/11/2008)
Minute Entry for proceedings held before Judge David R. Homer. A Discovery Conference was held on−the−record on 1/14/2008 with Bob Keach for plaintiffs and Gregg Johnson for defendants. The court set certain directives regarding determining if certain records can be retrieved electronically from Clinton Correctional Facility. A written order will be entered. (lah, ) (Entered: 01/14/2008)
95 ORDER referencing document # 84 Order regarding discovery issues. Signed by Judge David R. Homer on 1/14/08. (tab) (Entered: 01/14/2008)
96 Letter Motion from Elmer Robert Keach, III for Phyllis A. Mitchell requesting Evidentiary Hearing regarding computerized booking records or, in the alternative, Discovery Conference with the Court submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 01/22/2008)
97 TRANSCRIPT REQUEST for several discovery conferences by Phyllis A. Mitchell, Paul Bachmann for proceedings held on July 3, 2007; July 11, 2007; August 2, 2007; September 4, 2007; November 19, 2007; November 29, 2007; January 14, 2008 before Judge David R. Homer.. (Keach, Elmer) (Entered: 01/22/2008)
98 LETTER BRIEF in Response to Plaintiffs' Request for Hearing/Conference by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Attachments: # 1 Exhibit(s) Attachment A Jan 18 2008 ltr# 2 Exhibit(s) Att B Email Jan 18, 2008# 3 Exhibit(s) Att C Jan 21, 2008 ltr# 4 Exhibit(s) Att D Jan 21, 2008 ltr to Black Creek# 5 Exhibit(s) Email Jan 22, 2008)(Johnson, Gregg) (Entered: 01/23/2008)
TEXT NOTICE re 96 Letter Motion from Elmer Robert Keach, III for Phyllis A. Mitchell. A Discovery Conference will be held on−the−record on JANUARY 30, 2008 at 10:00 AM with Magistrate Judge Homer. Please mark your calendars accordingly. (lah, ) (Entered: 01/23/2008)
99 AMENDED TEXT NOTICE re 96 Letter Motion from Elmer Robert Keach, III for Phyllis A. Mitchell. The discovery conference previously set for 1/30/2008 at 10:00 AM is RESCHEDULED to JANUARY 31, 2008 at 2:00 PM with Magistrate Judge Homer. Please adjust your calendars. (lah, ) (Entered: 01/23/2008)
100 STATUS REPORT Regarding on−going discovery issues by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Quesnel, Scott) (Entered: 01/31/2008)
101 SCHEDULING ORDER resetting deadlines;Motions to be filed by 3/15/2008, Trial Ready Deadline is 4/15/2008. Signed by Judge David R. Homer on 1/31/08.

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 13 of 16

02/04/2008 02/06/2008
02/06/2008 02/07/2008 02/07/2008 02/07/2008 03/03/2008 03/04/2008 03/05/2008 03/07/2008 03/07/2008 03/21/2008
04/03/2008
04/03/2008

(tab) (Entered: 02/01/2008)
102 AMENDED COMPLAINT against all defendants filed by Phyllis A. Mitchell, Paul Bachmann.(Rozger, Jason) (Entered: 02/04/2008)
Minute Entry for proceedings held before Magistrate Judge David R. Homer. A Discovery Conference was held on 1/28/2008. The motion filing deadline was extended by written order. It was agreed that a settlement conference would be held. The parties are to arrange a date among themselves and contact Judge Homer's chambers with the agreed−upon date. (lah, ) (Entered: 02/06/2008)
103 CERTIFICATE OF SERVICE by Phyllis A. Mitchell, Paul Bachmann re 102 Amended Complaint (Rozger, Jason) (Entered: 02/06/2008)
104 ANSWER to 102 Amended Complaint by Jerry Maggy, Michael Smith, The County of Clinton, David Favro.(Johnson, Gregg) (Entered: 02/07/2008)
105 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro re 104 Answer to Amended Complaint (Johnson, Gregg) (Entered: 02/07/2008)
106 ORDER SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 2/22/2008 02:00 PM in Albany before Magistrate Judge David R. Homer. Signed by Judge David R. Homer on 2/7/2008. (dpk) (Entered: 02/08/2008)
TEXT NOTICE. A Telephone Status Conference will be held on MARCH 7, 2008 at 1:00 PM with Magistrate Judge Homer. Chambers will initiate the conference call. (lah, ) (Entered: 03/03/2008)
107 Letter Motion from Scott P. Quesnel, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Extension of dispositive motion deadlline submitted to Judge David R. Homer. (Attachments: # 1 Appendix Certificate of Service)(Quesnel, Scott) (Entered: 03/04/2008)
108 ORDER granting 107 Letter Request, Motions to be filed by 6/1/2008.. Signed by Magistrate Judge David R. Homer on 3/5/08. (tab) (Entered: 03/05/2008)
Minute Entry for proceedings held before Magistrate Judge David R. Homer. A Telephone Status Conference was held on 3/7/2008 with Bob Keach for plaintiffs and Gregg Johnson for defendants. (lah, ) (Entered: 03/07/2008)
TEXT NOTICE. A telephone status conference will be held on MARCH 19, 2008 at 4:30 PM with Magistrate Judge David R. Homer. Chambers will initiate the conference call. Please mark your calendars. (lah, ) (Entered: 03/07/2008)
Minute Entry for proceedings held before Magistrate Judge David R. Homer. A telephone Status Conference was held on 3/19/2008 with Bob Keach for plaintiffs and Scott Quesnel for defendants. The parties advised that they have reachd a tentative agreement on the allocation of settlement proceeds. The attorneys advised that they will begin to prepare the settlement documents in anticipation of an application to the district court to approve the class settlement. The attorneys were cautioned to keep eye on the dispositive motion filing deadline of 6/1/2008. (lah, ) (Entered: 03/21/2008)
109 RECORD of Proceedings: Conference held on January 14, 2008 before Judge David R. Homer, Court Reporter: Theresa J. Casal. 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.nynd.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 identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Notice of Intent to Redact due by 4/10/2008 Transcript due by 7/2/2008. (tjc, ) (Entered: 04/03/2008)
110 RECORD of Proceedings: Telephone Conference held on August 2, 2007 before Judge David R. Homer, Court Reporter: Theresa J. Casal. IMPORTANT NOTICE

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 14 of 16

04/03/2008
05/28/2008 05/29/2008 08/07/2008 08/28/2008 08/29/2008 10/01/2008 10/01/2008 10/08/2008 10/08/2008 10/15/2008 01/09/2009 01/12/2009

− 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.nynd.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 identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Notice of Intent to Redact due by 4/10/2008 Transcript due by 7/2/2008. (tjc, ) (Entered: 04/03/2008)
111 ,RECORD of Proceedings: Telephone Conference held on July 11, 2007 before Judge David R. Homer, Court Reporter: Theresa J. Casal. 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.nynd.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 identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Notice of Intent to Redact due by 4/10/2008 Transcript due by 7/2/2008. (tjc, ) (Entered: 04/03/2008)
112 Letter Motion from Scott P. Quesnel, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting Extension of Dispositive Motion Deadline submitted to Judge David R. Homer with Certificate of Service. (Quesnel, Scott) (Entered: 05/28/2008)
113 ORDER granting 112 Letter Request. Dispositive Motions to be filed by 8/29/2008. Signed by Magistrate Judge David R. Homer on 5/29/08. (ban) (Entered: 05/29/2008)
TEXT NOTICE − Counsel is reminded Discovery is Closed. All Dispositive Motions shall be filed on or before 8/29/2008. (jlr) (Entered: 08/07/2008)
114 Letter Motion from Gregg Johnson for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting adjournment of dispositive motion date submitted to Judge Homer. (Johnson, Gregg) (Entered: 08/28/2008)
115 ORDER granting 114 Letter Request adjourning deadline for filing dispositive motions. Signed by Magistrate Judge David R. Homer on 8/29/08. (tab) (Entered: 08/29/2008)
116 Letter Motion from Gregg Johnson, Esq. for Jerry Maggy, Michael Smith, The County of Clinton, David Favro requesting One week extension to file dispositive motions submitted to Judge Homer. (Johnson, Gregg) (Entered: 10/01/2008)
117 ORDER granting 116 Letter Request, Motions to be filed by 10/8/2008. Signed by Magistrate Judge David R. Homer on 10/1/08. (tab) (Entered: 10/01/2008)
118 STATUS REPORT regarding settlement by Jerry Maggy, Michael Smith, The County of Clinton, David Favro. (Johnson, Gregg) (Entered: 10/08/2008)
119 SETTLEMENT AGREEMENT by Phyllis A. Mitchell, Paul Bachmann. (Attachments: # 1 Letter to Court Re: Settlement Agreement)(Keach, Elmer) (Entered: 10/08/2008)
120 NOTICE of Appearance by Bethany Schumann−McGhee on behalf of all plaintiffs (Schumann−McGhee, Bethany) (Entered: 10/15/2008)
TEXT NOTICE − Counsel is directed to file a status report on the progress of the completion of the Settlement Agreement to Chief Judge Mordue on or before 1/16/09. (jlr/am) (Entered: 01/09/2009)
121 NOTICE of Change of Address by Gregg T. Johnson Effective Date January 9, 2009 Old Address: Girvin &Ferlazzo, PC, 20 Corporate Woods Blvd, Albany, NY 12211 New Address: Lemire Johnson, LLC, 2534 Rte 9, PO Box 2485, Malta, NY 12020 (Johnson, Gregg) (Entered: 01/12/2009)

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 15 of 16

01/12/2009 01/16/2009 02/06/2009 02/10/2009
02/11/2009 02/12/2009 03/10/2009 04/24/2009 04/28/2009 04/28/2009 06/11/2009 06/12/2009 07/22/2009 09/23/2009 09/25/2009

122 CERTIFICATE OF SERVICE by Jerry Maggy, Michael Smith, The County of Clinton, David Favro re 121 Notice of Change of Address (Johnson, Gregg) (Entered: 01/12/2009)
123 STATUS REPORT by Phyllis A. Mitchell, Paul Bachmann. (Rozger, Jason) (Entered: 01/16/2009)
TEXT NOTICE − Counsel is directed to file an updated status report on the progress of the completion of the Settlement Agreement to Chief Judge Mordue on or before 2/10/09. (jlr/am) (Entered: 02/06/2009)
124 MOTION Preliminary approval of class action settlement Motion Hearing set for 2/19/2009 09:30 AM in Albany before Magistrate Judge David R. Homer Response to Motion due by 2/2/2009 filed by Phyllis A. Mitchell, Paul Bachmann. (Attachments: # 1 Memorandum of Law, # 2 Affirmation of Jason Rozger, # 3 Exhibit(s) 1, settlement agreement, # 4 Exhibit(s) 2, claim form, # 5 Exhibit(s) 3, Long Form Notice, # 6 Exhibit(s) 4, short form notice, # 7 Exhibit(s) 5, plan of distribution, # 8 Exhibit(s) 6, preliminary approval order, # 9 Exhibit(s) 7, final approval order) Motions referred to David R. Homer. (Rozger, Jason) (Entered: 02/10/2009)
125 CONSENT to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Judge David R. Homer. (Signed by Chief Judge Norman A. Mordue on 2/11/08) (amt) (Entered: 02/11/2009)
126 AFFIDAVIT re 124 MOTION Preliminary approval of class action settlement certificate of service by Phyllis A. Mitchell, Paul Bachmann. (Rozger, Jason) (Entered: 02/12/2009)
127 ORDER granting 124 Motion for approval of preliminary settlement. Signed by Magistrate Judge David R. Homer on 3/10/09. (tab) (Entered: 03/11/2009)
128 Letter Motion from class counsel requesting setting of deadlines, by consent for Phyllis A. Mitchell, Paul Bachmann submitted to Judge Homer. (Rozger, Jason) (Entered: 04/24/2009)
TEXT NOTICE. The Class Action Final Approval Hearing will be held on SEPTEMBER 30,2009 at 10:00 AM before Hon. David R. Homer, U.S. Magistrate Judge, at the James Foley U.S. Courthouse, 445 Broadway, Room 443, Albany, New York. (lah, ) (Entered: 04/28/2009)
129 ORDER granting 128 Letter Request to change Class Action Notice Date to May 11, 2009. Signed by Magistrate Judge David R. Homer on 4/28/09. (tab) (Entered: 04/29/2009)
130 STIPULATION of Dismissal as to the Individual Defendants by Jerry Maggy, Michael Smith, David Favro submitted to Judge David R. Homer. (Johnson, Gregg) (Entered: 06/11/2009)
131 STIPULATION AND ORDER, to dismiss individual defendants. Michael Smith; David Favro and Jerry Maggy terminated. Signed by Magistrate Judge David R. Homer on 6/12/09. (tab) (Entered: 06/12/2009)
TEXT NOTICE The Class Action Final Approval Hearing previously set for 9/30/2009 at 10:00 AM with Magistrate Judge David R. Homer is RESCHEDULED to 10/8/2009 at 10:00 AM, Room 443, James Foley U.S. Courthouse, 445 Broadway, Albany, NY. (lah, ) (Entered: 07/22/2009)
132 Letter Motion from Jason Rozger, on consent of all parties for Phyllis A. Mitchell, Paul Bachmann requesting Limited re−opeining of claims period submitted to Judge Homer. (Attachments: # 1 Proposed Order/Judgment)(Rozger, Jason) (Entered: 09/23/2009)
TEXT ORDER re 132 Letter Motion from plaintiff's counsel requesting limited re−opening of claims period. The Request is GRANTED and the additional claims period is extended to NOVEMBER 9, 2009. The Final Approval Hearing is reset to NOVEMBER 13, 2009 at 10:00 AM. A STATUS TELEPHONE CONFERENCE will be held on the previously scheduled hearing date of 10/8/2009 at 10:00 AM. Chambers will initiate the conference call. Signed by Magistrate Judge David R.

Case: 8:06-cv-254 As of: 07/26/2013 05:02 PM EDT 16 of 16

10/08/2009 10/08/2009
11/21/2009
12/03/2009 12/04/2009 12/04/2009 01/12/2010

Homer on 09/25/2009. (lah, ) (Entered: 09/25/2009)
Minute Entry for proceedings held before Magistrate Judge David R. Homer. A Telephone Conference was held on 10/8/2009 with Jason Rozger for plaintiffs and Gregg Johnson for the defendants. The time period for certain class members to file claims was extended to 11/9/09. The final approval hearing is adjourned to 12/4/09. A written order will be entered. (lah, ) (Entered: 10/08/2009)
133 ORDER For Limited Re−Opening of the Time to File a Claim on the Class Action Settlement. The time for class members who where booked into Clinton County Jail from 6/2/06 through 7/1/07 to file claims on the settlement is extended until 11/9/09 and claims filed by such class members and postmarked by that date shall be considered timely filed. Final Approval Hearing set for 12/4/2009 10:00 AM in Albany before Magistrate Judge David R. Homer. Plaintiff's shall file all pleadings related to the final approval hearing on or before 11/20/09. Signed by Magistrate Judge David R. Homer on 10/8/09. (ban) (Entered: 10/08/2009)
134 MOTION Final Approval of Class Action Settlement Motion Hearing set for 12/4/2009 10:00 AM in Albany before Magistrate Judge David R. Homer Response to Motion due by 11/17/2009 filed by Phyllis A. Mitchell, Paul Bachmann. (Attachments: # 1 Memorandum of Law, # 2 Affidavit of Jose C. Fraga with exhibits, # 3 Affirmation of Jason Rozger, Esq., # 4 Exhibit(s) A, Settlement Agreement, # 5 Exhibit(s) 2, In Re Independent Energy Holdings, # 6 Exhibit(s) 3, Eddleman final approval, # 7 Exhibit(s) Eddleman decision, # 8 Exhibit(s) 6, Belzley affirmation, # 9 Exhibit(s) 7, Sorenson article, # 10 Exhibit(s) 8, Jason Rozger time records, # 11 Exhibit(s) 9, Duncan v. Unity Life, # 12 Exhibit(s) In re Arakis, # 13 Exhibit(s) 11, In re Dreyfus, # 14 Exhibit(s) Baffa v. Donaldson, # 15 Exhibit(s) Bruce Menken time records, # 16 Exhibit(s) 14, Paralegal time records, # 17 Exhibit(s) Martindale Hubbel bios) (Rozger, Jason) (Entered: 11/21/2009)
135 AFFIDAVIT in Support re 134 MOTION Final Approval of Class Action Settlement filed by Paul Bachmann, Phyllis A. Mitchell. (Attachments: # 1 Exhibit(s) E. Robert Keach fee affirmation, # 2 Exhibit(s) Cuneo, Gilbert &LaDuca fee affirmation, # 3 Exhibit(s) Mason fee affirmation, # 4 Proposed Order/Judgment)(Rozger, Jason) (Entered: 12/03/2009)
Minute Entry for proceedings held before Magistrate Judge David R. Homer re 134 MOTION Final Approval of Class Action Settlement. Appearances: Jason Rozger and Bruce Menken for plaintiffs; Gregg Johnson for defendants. The Court approves the proposed settlement. A written order will enter. (lah, ) (Entered: 12/04/2009)
136 ORDER granting 134 Motion for final approval of class action settlement and judgment. Signed by Magistrate Judge David R. Homer on 12/4/09. (tab) (Entered: 12/04/2009)
137 NOTICE by Phyllis A. Mitchell of Withdrawal of Appearance and Removal from ECF Notification for Attorney Bethany Schumann−McGhee (Keach, Elmer) (Entered: 01/12/2010)