UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

__________________________________________

:

JOHN KELSEY and TIMOTHY WRIGHT,

:

both individually and on behalf of a class of others :

similarly situated,

:

:

Plaintiffs,

: Index No. 04-CV-

-against-

:

:

THE COUNTY OF SCHOHARIE,

:

JOHN S. BATES, JR., both individually and in his :

official capacity as Sheriff of the County of

:

Schoharie, and JIM HAZZARD, both individually :CLASS ACTION COMPLAINT

and in his capacity as Administrator of the

:JURY TRIAL DEMANDED

Schoharie County Jail,

:

:

Defendants.

:

__________________________________________:

INTRODUCTION 1. This is a class action brought to redress the Defendants’ violation of the Plaintiffs’ and proposed Class members’ Constitutional rights. The Schoharie County Sheriff’s Department has a policy and/or practice of strip searching all individuals who enter the Schoharie County Jail, regardless of the crime upon which they are charged. Upon information and belief, this policy is part of the written procedures of the Schoharie County Sheriff’s Department, and was promulgated by senior Department officials; specifically, Defendants Sheriff John S. Bates and

Schoharie County Jail Administrator Jim Hazzard. It is clearly established law in this judicial

circuit that individuals charged with misdemeanors, violations, or held on civil matters cannot be

strip searched absent individual, reasonable suspicion that they possess weapons or contraband.

Thus, the Defendants have maintained and implemented an unconstitutional strip search policy at

the Schoharie County Jail.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331 and 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 United States Constitution and Federal law pursuant to 42 U.S.C. § 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. 3. Venue in this district 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 4. Plaintiff John Kelsey (“Kelsey”) is 33 years old and resides in Cohoes, NY. On or about October 16, 2002, Kelsey, after appearing in Albany County Family Court on a child support matter, was arrested for a civil violation of the New York Family Court Act. Kelsey was held in the Schoharie County Jail because he worked, and continues to work, as a corrections officer in the Albany County Jail. 5. Plaintiff Timothy Wright (“Wright”) resides in Bennington, Vermont. On or about September 16, 2003, Wright was arrested for misdemeanor Driving While Intoxicated and held
2

overnight at the Schoharie County Jail. 6. Defendant County of Schoharie (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 the Schoharie County Jail and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the Schoharie County Jail (“SCJ”). In addition, at all relevant times, the County was responsible for enforcing the rules of the SCJ, and for ensuring that Sheriff’s Department personnel employed in the Jail obeyed the Constitution and laws of the United States and of the State of New York. 7. Defendant John F. Bates Jr. (“Bates”) is the duly elected Sheriff of Schoharie County, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees held at the SCJ. Sheriff Bates’ principal place of business is 157 Depot Lane, Schoharie, New York, and he is made a Defendant in this action in both his individual and official capacities. 8. Defendant Jim Hazzard (“Hazzard”) is a Lieutenant in the Schoharie County Sheriff’s Department and is the Administrator of the Schoharie County Jail. As such, Hazzard is a policy maker with respect to the treatment of pre-trial and other detainees over which the SCJ exercises custodial or other control. Bates’ principal place of business is 157 Depot Lane, Schoharie, New York, and he is made a Defendant in this action in both his individual and official capacities.
CLASS ACTION ALLEGATIONS 9. Plaintiffs bring this action pursuant to Rules 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
3

charged with misdemeanors, violations, or held on civil matters and were strip searched upon
their entry into the Schoharie County Jail.
The class that Plaintiffs seek to represent is defined as follows:
All persons in the United States who have been or will be placed into the custody of the Schoharie County Jail after being charged with misdemeanors, violations or held on civil matters and were or will be strip searched upon their entry into the Schoharie County Jail pursuant to the policy, custom and practice of the Schoharie County Sheriff’s Department and the County of Schoharie. The class period commences on March 19, 2001, and extends to the date on which the Schoharie County Sheriff’s Department and/or the County of Schoharie are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion.
Specifically excluded from the proposed class are Defendants, and all of their respective affiliates,
legal representatives, heirs, successors, employees or assignees.
10. 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).
11. 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, violations, and
on civil matters who are placed into the custody of the Schoharie County Jail every year, all
whom are members of the proposed class. Upon information and belief, the size of the proposed
class totals at least 750 individuals, some of whom have had their civil rights violated on
multiple occasions.
12. Joinder of all of these individuals is impracticable because of the large number of class
members and the fact that class members are likely to be dispersed over a large geographical
4

area, with some members presently residing outside of Schoharie 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. 13. 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, violations, or were held on civil matters when placed into the custody of the Schoharie County Jail, and all were illegally strip searched in violation of the clearly established law in this judicial circuit. 14. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and all members of the class sustained damages arising out of Defendants’ course of conduct. 15. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members. 16. The representative Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. 17. Plaintiffs have no interests that are adverse to the interests of the members of the Class. 18. Plaintiffs have retained counsel who has substantial experience and success in the prosecution of class action and civil rights litigation. 19. The named Plaintiffs are being represented by Elmer Robert Keach, III, along with Bruce Menken and Jason Rozger of Berenbaum Menken & Ben-Asher LLP. Mr. Keach is an experienced civil rights and class action attorney who has litigated a wide variety of civil rights
5

actions before this Court, and has litigated class action lawsuits in state and federal courts in five states. Mr. Keach has successfully litigated a strip search case against the Troy City Police Department, and has previously litigated two other cases against the Schoharie County Sheriff’s Department, including one on behalf of a sixteen year old girl raped by a Corrections Officer. 20. 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 two who opted out of the recent class action litigation against the City of New York. In addition, all of Plaintiff’s attorneys represent proposed class actions against two other local jails over their strip search policies that are pending in this district. On one of those cases, a settlement in principle has been reached, subject to approval by the court. 21. Counsel for Plaintiffs know of no conflicts among members of the class, or between counsel and members of the class. 22. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs’ seek 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 Schoharie County Jail. In short, the Defendants acted on grounds generally applicable to all class members. 23. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3). 24. Common questions of law and fact exist as to all members of the Class, and predominate
6

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’ policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the Schoharie County Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution. 25. 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 hundreds 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. 26. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals. 27. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Individual Defendants in this action, from performing strip searches of arrestees who have been charged with misdemeanors, violations, or are held on civil matters unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 28. Upon information and belief, the Defendants maintain a policy, custom or practice of
7

strip searching all individuals who enter the custody of the Schoharie County Jail, 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. 29. The 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 in Weber v. Dell, 804 F.2d 796 (2d Cir. 1986). 30. The Defendants’ 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. 31. Upon information and belief, not only is the policy of strip searching illegal, but the manner in which individuals are searched is also impermissible. For example, upon information and belief, individuals are strip searched in a public area and in the presence of multiple corrections officers, jail employees and other arrestees, including arrestees of the opposite gender.
FACTS APPLICABLE TO NAMED PLAINTIFFS 32. Kelsey’s experience is representative of the class members’. On or about October 16, 2002, Kelsey was in Albany Family Court on a child support matter. After appearing in Family Court, Kelsey was charged with a civil violation of the Family Court Act, and arrested. 33. Because Kelsey works as a corrections officer in the Albany County Jail, he was taken to the Schoharie County Jail.
8

34. Upon arrival at the SCJ, Kelsey was taken to the booking area, which is in full view of all of the SCJ’s holding cells. 35. Once in the booking area, Kelsey was ordered by a SCJ corrections officer to remove all of his clothing and hand those clothes to the officer. Kelsey complied. 36. Once Kelsey had stripped naked, the corrections officer inspected Kelsey’s naked body and searched the clothing that Kelsey was wearing. 37. The corrections officer then gave Kelsey a jail uniform to put on. 38. On this particular occasion, there was no reasonable suspicion to believe that Mr. Kelsey was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Kelsey that could have given rise to the requisite reasonable suspicion. 39. Moreover, because Kelsey had already been in the custody of police officers from the City of Albany, the corrections officer in question knew or should have known that Kelsey had already been subjected to a search incident to arrest that would have revealed any weapons or contraband. 40. Timothy Wright’s experience is representative as well. On or about September 16, 2003, Wright was arrested for Driving While Intoxicated, a misdemeanor under New York’s Vehicle and Traffic Law, and taken to the Schoharie County Jail. 41. Upon arrival at the SCJ, Wright was taken to the booking area, which is in full view of all of the SCJ’s holding cells. 42. Once in the booking area, Wright was ordered by a SCJ corrections officer to remove all of his clothing and hand those clothes to the officer. Wright complied. 43. Once Wright had stripped naked, the corrections officer inspected Wright’s naked body
9

and searched the clothing that Wright was wearing. 44. The corrections officer then gave Wright a jail uniform to put on. 45. On this particular occasion, there was no reasonable suspicion to believe that Mr. Wright was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Wright that could have given rise to the requisite reasonable suspicion, and nothing of the circumstances of the arrest or the nature of the crime charged gave rise to such reasonable suspicion.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS: VIOLATION
OF CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW 46. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 45. 47. 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, violations, or on civil matters absent some individual, particular suspicion that the individual in question has either contraband or weapons. 48. The actions of Defendants detailed above violated Plaintiffs’ rights under the United States Constitution. 49. It was not objectively reasonable for the Defendants to maintain a policy of strip searching Plaintiffs and class members. 50. These strip searches were conducted pursuant to the policy, custom or practice of the Defendants. As such, the Defedants are directly liable for the damages of the named Plaintiffs and members of the Class.
10

51. Upon information and belief, Defendants Bates and Hazzard are responsible for establishing the policies and procedures to be utilized in the operation of the Schoharie County Jail, and are responsible for the implementation of the unconstitutional strip search policy and/or practice. As such, Bates and Hazzard are each individually responsible for the damages of the named Plaintiffs and members of the Class. 52. Bates and Hazzard knew that the SCJ’s strip search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and members of the Class of their Constitutional rights. 53. 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. 54. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs have been irreparably injured.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS: DEMAND FOR DECLARATORY JUDGEMENT
55. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 54. 56. The policy, custom and practice of the Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Schoharie County Jail without any particularized suspicion that the individuals in question have either contraband or weapons. 57. Plaintiffs 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 Schoharie and the Schoharie County
11

Sheriff’s Department to be unconstitutional. AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS: DEMAND FOR A PRELIMINARY AND PERMANENT INJUNCTION
58. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 57. 59. The policy, custom and practice of the Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Schoharie County Jail without any particularized suspicion that the individuals in question have either contraband or weapons. 60. Upon information and belief, this policy is currently in place at the Schoharie County Jail, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs. 61. 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, as well as the named Plaintiffs should they ever be arrested again, for which an adequate remedy does not exist at law. 62. Plaintiffs demand that the Defendants immediately desist from strip searching individuals placed into the custody of the Schoharie 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.
AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS JOHN S. BATES JR. and JIM HAZZARD: DELIBERATE INDIFFERENCE TO
TRAINING AND SUPERVISION
12

63. Plaintiffs incorporate by reference and reallege each and every allegation stated in

paragraphs 1 through 62.

64. The above Defendants were deliberately indifferent in the training and supervision of the

individual officers employed at the Schoharie County Jail, in that Defendants were deliberately

indifferent in discharging their duty to make sure that any strip searches conducted at the

Schoharie County Jail were performed only in circumstances permitted by the United States

Constitution.

65. The above Defendants knew, or should have known, that unconstitutional strip searches

were, or were likely to be, taking place in the Schoharie County Jail.

66. Despite this knowledge the above Defendants did not act to stop these unconstitutional

practices from occurring.

67. 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.

68. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs have

been irreparably injured.

DEMAND FOR TRIAL BY JURY

69. The Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs John Kelsey and Timothy Wright, on behalf of themselves and on behalf of a class of others similarly situated, request that this Honorable Court grant them the following relief:
13

An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23. A judgment against all Defendants, jointly and severally on Plaintiffs’ First Cause of Action detailed herein, awarding Compensatory Damages to each named Plaintiff and each member of the proposed class. A judgment against Defendants John S. Bates Jr. and Jim Hazzard for punitive damages. A declaratory judgment against all Defendants declaring the County of Schoharie and the Schoharie County Sheriff’s Department’s policy, practice and custom of strip and visual cavity searching all detainees entering the Schoharie County Jail, regardless of the crime charged or suspicion of contraband, to be unconstitutional and improper. A preliminary and permanent injunction enjoining Defendants from continuing to strip search individuals charged with misdemeanors, violations or arrested on civil matters absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband. A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988, and Such other relief as the Court finds just and proper.
Dated: March 17, 2004 Albany, New York
/S/ Jason J. Rozger USDC, NDNY Bar Roll Number 105874 Bruce E. Menken USDC, NDNY Bar Roll Number 104942 14

BERANBAUM MENKEN & BEN-ASHER

LLP

Three New York Plaza

New York, NY 10004

Telephone:

212.509.1616

Telecopier:

212.509.8088

Electronic Mail:

jrozger@bmbf.com

Elmer Robert Keach, III

USDC, NDNY Bar Roll Number 601537

One Steuben Place

Albany, NY 12207

Telephone:

518.434.1718

Telecopier:

877.471.3092

Electronic Mail: bobkeach@keachlaw.com

ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

15

 
 U.S. DISTRICT COURT
N.D. OF N.Y. FILED
SEP 07 2004
LAWRENCE K. 8AERMAN, CLERK
ALBANY
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

JOHN KELSEY et aI., v.
COUNTY OF SCHOHARIE et aI.,

Plaintiffs, Defendants.

No.04-CV-299 (LEKlDRH)

DAVID R. HOMER U.S. MAGISTRATE JUDGE
ORDER APPROVING DEFENDANT'S WAIVER OF POTENTIAL CONFLICT
On July 27,2004, an order was filed directing defendants John S. Bates and Jim Hazzard ("individual defendants") to take certain steps calculated to allow for a determination whether their counsel has fulfilled the ethical obligation to inform them of the potential adverse consequences of being jointly represented by the same counsel representing defendant County of Schoharie ("County"), and whether they understand the nature of the potential conflict and have knowingly and voluntarily waived it. In response, as directed, counsel for the individual defendants and the County has submitted the

affidavit of Bates and Hazzard, with attachment, stating that each has been apprised of the nature of the potential for conflict arising from such joint representation and that each has chosen, notwithstanding that potential conflict, to continue being jointly represented by the same counsel.
Based upon the foregoing, the Court having reviewed the affidavits of the individual defendants and attachments, it is hereby
ORDERED as follows: 1) Based upon the circumstances of which this Court is presently aware, including the information set forth in the affidavits of the individual defendants and attachments, I find that the individual defendants have each been provided with sufficient written notice by counsel of the potential for conflict inherent in being jointly represented by the same attorney representing the County, and that each has knowingly and voluntarily chosen to waive that potential for conflict and proceed with that joint representation. 2) The affidavits of Bates and Hazzard and their attachments, which were submitted pursuant to the Court's order filed July 27, 2004 and contain sensitive and attorney-client privileged matters, shall be filed by the Court under seal. 3) Copies of this order shall promptly be served by the Clerk to all counsel of record in this action.
2

DATED: September 7, 2004 Albany, New York

UNITED STATES MAGISTRATE JUDGE

3

 
 UNITED STATE DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,

Plaintiffs,

ELECTRONICALLY I<'IJ"ED

-against-

Civil Case No,:

THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,

04-CV-0299 LEKlDRH

Defendants.

PROTECTIVE ORDER ON STIPULATION WHEREAS, the Plaintiffs, 101m Kelsey and Timothy Wright, through their counsel, have made discovery demands which seek to inspect a portion oflhe Schoharie County Jail facility; and WHEREAS, the portion of the Schoharie County Jail faei lily which Plaintiffs seck to inspect is part of a secured facility and Defendants and the public have a legitimate interest in maintaining the security of said facility and preventing the public disclosure of the physical layout and details of said facility; and

WHEREAS, the Plaintiffs, through their counsel, have also made discovery demands seekin

copies of computer-based data t1Ies regarding certain nou-party inmates admitted to the Schohari

County Jail since March 19,2001, which files (hereinafter "inmate intake files") conlain cerlai

confidential information regarding non-parties (e.g., social security numbers); and

WHEREAS, during a Court mandated conference on July27, 2004, Unilcd States Magistrat

Judge David R. Homer directed Defendant Schoharie County to disclose copies of certain inmat,

intake files to Plaintiffs' counsel ror Ule limited purposes of this litigation; and

WHEREAS, the parties desire to facilitate discovery in this matter while maintaining th,

confidentiality of such infonnation; .IT IS HEREBY STIPULATED by and betwecn the parties, snbject to the approval of lh,

Court, that:

CONFIDENTIAL INl<'ORMATION

1. This Protective Order on Stipulation ("Protective Order") shall govern the usc ane

dissemination of the following categories of documents and information which arc created.

disclosed, or otherwise used in this action (hereinafter "Confidential records"): a. any and all photographs, drawings, videos, or other tapes of the holding are"

where inmates are processed (inclusive of holding cells, shower facility,

lavatOlyfacility, interview area, and area where inmates arc fingerprinted and

photographed) created during, or as a result of, any inspection by Plaintiffs,

Plaintiffs' counsel, or Plaintiffs' agenls (excluding confidential notes,

diagrams, or documents crealed after the inspection that are covered by an

attorney-client or attorney work product privilege); and

2

b. any and all inmate intake files which contain information about non-partie. 2. To the exlenllhat Confidential records which fall within the scope of paragraph" I above. or copies thereof. arc created as a result of an inspection of any portion of the Schoharie Ja facility, are otherwise produced for inspection in this action, otherwise become the subject 0 discovery in this action, or are otherwise submitted to the Court in this action, each page and/or cop: of such matelials shall be marked as "CONFlDENTIAL" by the individual producing such recon or information or herfhis/their/ils counsel. Moreover, Plaintiffs' counsel shall promptly provid, Defendants' counsel with a copy of any and all photographs, drawings, videos, or other tapes or othe: records that fall within the scope of subparagraph "I(a)" above.
PROTECTION OF CONJ;'IDENTIAL INFORMATION 3. All Confidential records and information which fall within the scope ofparagraph "I' above and copies thereof, absent an order of the Court to the contrary, shall only be disclosed to parties to this litigation, counsel, expelt witnesses, or consultants employed by the parties. In addition, Plaintiffs' counsel may disclose to individuals who have consented to become parties to this litigation (hereinafter "potential plaintiffs"), portions of the inmate iutake files that refer to such individuals. Disclosure to expert witnesses, consultants, employees of the pmties, or potential plaintiffs shall only be made after the recipient has read and signed the attached "Undertaking." Counsel for all parties shall keep such Undertakings on file, to be produced upon Order of the Cow1. 4. Confidential records and information shall be used only by persons pennitted access pursuant to paragraph "3" above and shall be used only for a purpose directly related to the prosecution or defense of this action, including the settlement thereof, and shall not be used for any other purposc whatsoever nor shall it be disclosed to persons other than those specified herein.
3

5. Except as set forth herein, confidential records or confidential information shall 0( be disclosed by any person or otherwise disseminated, unless such materials shall become public i, a manner not in violation of this Protective Order.
6. All documents or tangible things tendered under a designation of confidentialit, and/or privilege and all deposition testimony or responses to discovery given under a designation o. confidentialiry and/or privilege, if filed before the COUlt, shall be tiled pursuant to General Order 21
1f 12.2, with the Clerk of the Court in a sealed opaque envelope marked with the caption of the case,
a schedule listing the contents, a 3.5" disk containing the documents in .pdf format, and the following notation:
"SEALED PURSUANT TO PROTECTIVE ORDER; CONTAINS CONFIDENTIAL INFORMATION;
TO BE OPENED ONLY BY OR AS DIRECTED BY THE COURT," The Clerk of the Court is directed to maintain under seal all documents and tangible things so filed in this litigation. 7. Should the need arise for any ofthe parties to disclose contidential information during any hearing or trial before the Court, including disclosures through argument or the presentation of testimonial, documentary, or physical evidence, such pimy may do so only aner taking such sleps as the Court shall deem necessmy to preserve the confidentiality of such information. 8. This Protective Order shall not preclude any person from moving this Court for aJ1 order that Contldential information is not, in fact, within thc scope of prolection afforded by Rule 26(c)(7) of the Federal Rules of Civil Procedure or for an order modifying lhis Protective Order. During the pendency of such motion, and until determination on the merits has been made by the
4

~T-I4-04 THU 09:43 AM

FAX NO.

P. 07

Com!, lile doclIment or Information asserted to be confidentiQl inf'Jnllalion shall continuo to he Ircill~tl '" slIch under Ihe teml~ oflhis Protective Order.
9. Nothing contained in this Protective O)'dcrshall constillite nil ildmissionlJy nny party
lhat imy tlOl"lllllCnl or information dcsigrl:Jtc,d a~ confidential is relevanl Uf .l:H.lrnis::;ibl.),
In. Upon linallcrmi nation of tilis litigation, inc.luding any l1ppeab, cach COllilscl, expert,
COn'lIIL~lIt, auel other person subject to tile term.s ofthis Protecliw Order SllUll be under ml obligation to ""l'./Hille Ilod to promptly retllrn 10 the originating SOUl'CC, all dOclIlllcnts and tiling" including or embodying Confidenti"l informntion, inc1u<ling without limitation all copies, excerpt<. <uIllI118ric:;, flote.l, (] i2."'I.,. abstracts nnd indices thCl\'!of, and all docliments anclll) ings which have bCGIl prcp"r0d rclnlillg lliereto, except thal legal counsel [or each pnny may retain one set of pleadings nod QLlwr po i")/" fi Ic:d with Ihe Conft, including [ran scripts ofhc.orings and Iri'll, h"aring and Il'inl eXhibits. :md

<IqlOsitiDll (rnnscrip!s IUld deposition cxhitJits, II. This Proteciive Order shall surviye the termination of this action.

_Ct. DATE!): Oclober

2004

DATED: Octohcr 4, 2004 GIRVIN & FERLAZZO, P.C.

I: \ler R hert ,1 JIl, Esq. B~r Roll No.: 04942 !\ttofilCYS for Plaintiff, and Proposed Class
156 Madison i\venue i\IIHlny, New York 12202 '1'01.: (518) 463~7962 IInx: (518) 463·7028

Atlomeys for Defc,n<lants 20 Corporalc Woods Boulcvdrcl Albany, New York )2211 Tel.: (518) 462~03()0 Fax: (518) 462-5037

5

SO ORDERED: Dated:

David R. Homer United Slales Magistrate Judge

6

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JOHN KELSEY and TIMOTHY WRIGHT,
Plaintiffs,
-against-
COUNTY OF SCHOHARIE; JOHN S. BATES, JR.; and JIM HAZZARD,
Defendants.

1:04-CV-299 (LEK/DRH)

MEMORANDUM-DECISION AND ORDER1 I. Background
Plaintiffs John Kelsey and Timothy Wright (“Plaintiffs”) filed this lawsuit on behalf of “themselves and a class of similarly situated individuals who were charged with misdemeanors, violations, or held on civil matters and were strip searched upon their entry into the Schoharie County Jail.” Complaint (Dkt. No. 1) at 3-4. Plaintiffs are claiming violations of their constitutional rights and the Fourth and Fourteenth Amendments to the United States Constitution, at the hands of the Defendants.2 Id. at 1, 7. The case was assigned to the undersigned, and to the Honorable David R. Homer, United States Magistrate Judge, for pre-trial matters.
On July 27, 2004, Magistrate Judge Homer issued a Uniform Pretrial Scheduling Order, which was amended March 4, 2005, setting, inter alia, the deadline for applications for amendments

1 For printed publication in the Federal Reporter.
2 But, note that Plaintiffs have stated that they are not seeking punitive damages from the County of Schoharie. Mem. of Law in Opp. to Defts’ Motion for Leave to Amend Answer (“Plntfs’ Mem. in Opp.”) (Dkt. No. 38) at 3 (citing Complaint (Dkt. No. 1) at 13).
1

of pleadings at November 1, 2004, and the deadline for completion of discovery at July 1, 2005. Dkt. Nos. 12 & 33. On June 1, 2005, Defendants moved before Judge Homer for leave to file an Amended Answer, pursuant to Federal Rule of Civil Procedure 15, to set forth an Eighth Affirmative Defense at paragraph 39 of said pleading. Dkt. No. 37. The Amended Answer would read, at the relevant paragraph 39: “Plaintiffs’ claim for compensatory damages is barred by the Prisoner [sic] Litigation Reform Act (“PRLA”) [sic], 42 USC §1997 et. seq.” Proposed Amended Answer (Dkt. No. 37) at 8. Defendants also moved for sanctions under Federal Rule of Civil Procedure 11, requesting attorneys fees and costs associated with the motion to amend their Answer.3 Dkt. No. 37. Plaintiffs opposed Defendants’ motion to amend the Answer. Plntfs’ Mem. in Opp. (Dkt. No. 38).
On August 5, 2005, Judge Homer issued a Memorandum-Decision and Order, pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72, and Local Rules 72.1 & 72.2 of the Northern District of New York, in which he denied Defendants’ Motion. Decision & Order (Dkt. No. 40). Judge Homer determined, among other things, that § 1997e(e) is inapplicable to this case, and therefore the proposed amendment containing the affirmative defense would be futile.
Defendants have objected to Judge Homer’s Decision and Order pursuant to Local Rule 72.1(b) (Dkt. No. 41), and Plaintiffs have submitted papers in opposition to Defendants’ objections (Dkt. No. 59). The matter having been fully briefed, this Court now decides the appeal. For the
3 Although Defendants made a motion for Rule 11 sanctions in their Motion to Amend (Dkt. No. 37), and Plaintiffs addressed the issue in their opposition papers (Dkt. No. 38), Judge Homer did not address the Rule 11 sanctions issue in his Memorandum-Decision and Order (Dkt. No. 40). Although Plaintiffs mention that Judge Homer denied Defendants’ Rule 11 sanctions motion sub silentio (Dkt. No. 59 at 1 n.1), Defendants do not raise an objection. Therefore, this Court will not address the issue of Rule 11 sanctions on this appeal.
2

following reasons, Defendants’ objections are overruled. Judge Homer’s Memorandum-Decision and Order is affirmed in its entirety. Defendants will not be permitted to amend their Answer.
II. Discussion A. Standards of Law Judge Homer’s Memorandum-Decision and Order concerned a non-dispositive, pre-trial motion, and as such this Court reviews the magistrate judge’s findings to determine if they are clearly erroneous or contrary to law. 28 U.S.C. § 636(b); FED. R. CIV. P. 72(a); Cauley v. Ingram Micro, Inc., 216 F.R.D. 245 (W.D.N.Y. 2003); World Wrestling Fed’n Entm’t, Inc. v. William Morris Agency, Inc., 204 F.R.D. 263 (S.D.N.Y. 2001) (“An order is ‘clearly erroneous’ only when ‘“the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”’...An order is ‘contrary to law’ when it ‘fails to apply or misapplies relevant statutes, case law or rules of procedure.’”) (citations omitted); Precisionflow Tech., Inc. v. CVD Equip. Corp., 140 F. Supp. 2d 195, 197-198 (N.D.N.Y. 2001) (Mordue, D.J.; Homer, M.J.) (“this Court must review [the Magistrate Judge’s] Memorandum-Decision and Order under the ‘clearly erroneous or contrary to law’ standard of review....This standard affords magistrate judges broad discretion in resolving non-dispositive disputes, thus reversal is appropriate only if the discretion is abused.”) (citing, inter alia, Thomas E. Hoar Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)). Under Federal Rule of Civil Procedure 15 - Amended and Supplemental Pleadings - the Second Circuit has stated that the Rule “provides that ‘a party may amend the party’s pleading...by leave of court...and leave shall be freely given when justice so requires.’ A district court has broad
3

discretion to decide whether to grant leave to amend, a decision that we review for an abuse of discretion....Furthermore, where amendment would be futile, denial of leave to amend is proper.” In re Tamoxifen Citrate Antitrust Litig., No. 03-7641, 2005 WL 2864654, at *28 (2d Cir. Nov. 2, 2005) (citing, inter alia, Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 91-92 (2d Cir. 2003)). In addition, “Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires’; this mandate is to be heeded....In the absence of any apparent or declared reason--such as undue delay, bad faith...on the part of the movant,...futility of amendment, etc.--the leave sought should, as the rules require, be ‘freely given.’ Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion”. Foman v. Davis, 371 U.S. 178, 181-182 (1962). See also Local 802, Assoc. Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998). Thus, both the magistrate judge and the undersigned have broad discretion to grant or deny a motion to amend the pleadings.
Separately, the relevant portion of the Prison Litigation Reform Act (“PLRA”) states as follows: “(e) Limitation on recovery[.] No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” PLRA, 42 U.S.C. § 1997e(e) (emphasis added). And, the term “prisoner” has been defined as: “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
4

diversionary program.” PLRA, 42 U.S.C. § 1997e(h). See also Greig v. Goord, 169 F.3d 165, 166 (2d Cir. 1999) (per curiam).
B. Amendment of the Pleadings First, it should be noted that the motion to amend the pleadings was not made until June 1, 2005 - a full seven months after the November 1, 2004, deadline set by the Court in the Scheduling Order. However, Judge Homer rejected Plaintiffs’ untimeliness arguments for the reasons presented by the Defendants in Defendants’ Memorandum of Law (Dkt. No. 37) at pages 2-6. Therefore, that issue aside, Judge Homer evaluated the merits of the motion to amend. At issue is the futility of the proposed amendment, and the applicability, or lack thereof, of § 1997e(e) of the PLRA to this case. The PLRA was passed by Congress, with the purpose of “curtail[ing] what Congress perceived to be inmate abuses of the judicial process.” Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir. 2004) (with citations); Greig, 169 F.3d at 167. As Judge Homer observed, if a litigant is no longer incarcerated at the time the action is brought, they do not fall within the category of litigant with which Congress was concerned - incarcerated plaintiffs who bring civil actions for recreation. As support for finding § 1997e(e) inapplicable to the case at bar, Judge Homer cites case law from around the country that has found § 1997e(e) to apply only to those litigants who are still incarcerated when filing their claims. See, inter alia, Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc); Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) (Easterbrook, J.) (plaintiff avoided application of § 1997e(e) by waiting until after release to file suit; there is no “wiggle room”, and “prisoner” and “ex-prisoner” are not interchangeable); Smith v. Franklin County, 227 F. Supp. 2d 667 (E.D. Ky. 2002); Doan v. Watson, 168 F. Supp. 2d 932 (S.D. Ind. 2001); Lee v. State of New
5

York Dep’t of Correctional Servs., No. 97 Civ. 7112(DAB), 1999 WL 673339 (S.D.N.Y. Aug. 30, 1999). In fact, both the Second and Eighth Circuits have expressly found that the PLRA does not apply to cases where a plaintiff is no longer incarcerated or detained. See Greig, 169 F.3d at 167 (addressing exhaustion requirement of § 1997e(a), which uses language like that of § 1997e(e) “litigants--like Greig--who file prison condition actions after release from confinement are no longer ‘prisoners’ for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision.”); Doe By and Through Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998) (“When he filed this complaint, [Plaintiff/Appellee] was neither incarcerated nor detained in any jail, prison, or correctional facility. The PLRA unambiguously applies to only those suits filed by prisoners. [Plaintiff/Appellee] was not a prisoner, and the PLRA therefore does not apply to his case....Congress...fully intended to distinguish between those who are ‘prisoners’ when they decide whether to file a complaint and those who are not.”). If a litigant, by a fortuitous turn of events, is released from jail or prison prior to commencing an action, § 1997e(e) does not apply to the claims.
Additionally, decisions of other districts, like the Southern District of New York (Cox v. Malone, 199 F. Supp. 2d 135 (S.D.N.Y. 2002), and Lipton v. County of Orange, 315 F. Supp. 2d 434 (S.D.N.Y. 2004)), or split decisions of other districts, like the Southern District of Indiana (compare Doan v. Watson, 168 F. Supp. 2d 932 (S.D. Ind. 2001), with Zehner v. Trigg, 952 F. Supp. 1318 (S.D. Ind. 1997)) are not binding upon a judge in the Northern District of New York. The District Court in Cox advanced the following reasoning:
Section 1997e(a) is a procedural requirement requiring prisoners to fully exhaust their claims within the prison system before bringing a federal action. It makes no sense to apply this procedural requirement to former inmates who can no longer avail themselves of prison grievance procedures. Section 1997e(e), on the other hand, is a substantive limitation on the type of actions that can be brought by prisoners. Its purpose is to weed out frivolous claims
6

where only emotional injuries are alleged. This purpose is accomplished whether section 1997e(e) is applied to suits brought by inmates incarcerated at the time of filing or by former inmates incarcerated at the time of the alleged injury but subsequently released. The fortuity of release on parole does not affect the kind of damages that must be alleged in order to survive the gate-keeping function of section 1997e(e). Because plaintiff’s suit alleges only emotional injuries, it is barred by the PLRA irrespective of his status as a parolee at the time of filing.
Cox, 199 F. Supp. 2d at 140 (emphasis by the Court). However, when the same language is used in
different sections of the same statute, there can be a presumption that the language has the same
meaning.
Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning....But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. Where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.
Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932) (Sutherland, J.) (citations
omitted). Furthermore, aside from the PLRA itself not seeming to draw distinctions between the
language concerning “prisoner[s] confined” in its various sections - as Plaintiffs rightly argue (see
Dkt. No. 59 at 9) - the language of the statute appears to be clear, as has been addressed by other
courts cited by the parties and Judge Homer. If the language of a statute is unambiguous, courts
generally should not look beyond that language to interpret the application of the provisions. See
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992) (Thomas, J.) (“In any event,
canons of construction are no more than rules of thumb that help courts determine the meaning of
legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before
7

all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there....When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”) (citations omitted). The exceptions enumerated by the Atlantic Cleaners Court, supra, are not, in this Court’s opinion, present in the case at bar.
In light of the similarity of the statutory language of § 1997e(a) and § 1997e(e) and the congressional authority, in light of the statutory language and Congressional intent addressed by the many other courts that have decided this issue, and in the face of opposing case law from around the country, this Court rejects the reasoning presented by Cox. And, the decision of the Second Circuit in Cox v. Malone, 56 Fed. Appx. 43, 2003 WL 366724 (2d Cir. 2003), is also not binding precedent upon a judge in this District since the following is explicitly printed at the top of the opinion: “THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT....” . Cox, 56 Fed. Appx. 43, 2003 WL 366724. Although those decisions are persuasive, so is the wealth of case law from the rest of the nation, discussed by the parties and Judge Homer, finding that § 1997e(e) does not act to bar claims made by former prisoners who are no longer incarcerated at the time they bring/file their federal claims. Therefore, Judge Homer, not being bound by the limited persuasive authority within this Circuit, correctly evaluated the issues presented by way of considering the opinions of courts from around the country that are on-point.
Defendants have argued that leave to amend should be freely given if they have raised “at least colorable grounds for relief”, and that given the Cox decision and the fact that the Second Circuit has not ruled on § 1997e(e) in the context of non-incarcerated plaintiffs in a published
8

opinion, Defendants’ arguments address an “open question” and are therefore “colorable”. Defts’ Obj. (Dkt. No. 41) at 3 (citing, inter alia, Dow Corning Corp. v. Chem. Design, Inc., 3 F. Supp. 2d 361, 364 (W.D.N.Y. 1998); S.S. Silberlatt, Inc. v. E. Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979)). “Colorable”, when used as a description of a claim or defense, has two general meanings, the more common of which in the present context is: “appearing to be true, valid, or right”. The other meaning, from legal tradition, is: “[i]ntended to deceive; counterfeit”. BLACK’S LAW DICTIONARY 282 (8th ed. 2004). See also BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 832 n.4 (1st Cir. 1997); State of Missouri ex rel. Pemiscot County v. W. Sur. Co., 51 F.3d 170, 173 n.2 (8th Cir. 1995). In this case, if PLRA § 1997e(e) would not be applicable to bar the claims of the Plaintiffs, then it would appear, without having to reach the actual merits of Defendants’ defense under PLRA § 1997e(e), that Defendants’ proposed affirmative defense would not be colorable - not “appearing...valid”. It would be like claiming self-defense to a robbery charge - the defense is inapplicable in the given context, however “colorable” it might be in another context. Considering the Second Circuit’s decision in Greig, and given the wealth of settled case law on the PLRA from other parts of the nation, it does not appear that Defendants’ arguments are valid. Thus, Defendants’ arguments fail on this point.
Furthermore, Defendants argue that their amendment adding an affirmative defense under § 1997e(e) of the PLRA would not be futile because it is possible that the class, if and when certified, could include individuals who are incarcerated - thus making § 1997e(e) applicable to those plaintiffs. See Defts’ Obj. (Dkt. No. 41) at 3-4. But, Defendants’ argument fails. True, this class action has not yet been certified by the Court. But, “prior to class certification pursuant to
9

Fed.R.Civ.P. 23, the only plaintiff before the court is the representative party.” Macro v. Indep. Health Assoc., Inc., 180 F. Supp. 2d 427, 437 (W.D.N.Y. 2001) (citing Berthelot v. Stallworth, No. Civ.A. 99-3618, 2000 WL 222155 (E.D. La. Feb. 8, 2000) (concerning exercise of federal jurisdiction over claims)). Indeed, the general claims of the representative parties are of primary importance, as well. For example, the Second Circuit has held that if the claims of the named plaintiffs are found to be moot prior to class certification, the entire action is mooted. See Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994). The claims and/or positions of the named/representative plaintiffs are evaluated prior to class certification. In this case, the representative plaintiffs - those currently before the Court - are John Kelsey and Timothy Wright. Neither man was “confined in a jail, prison, or other correctional facility” at the time of filing. See Plntfs’ Mem. in Opp. to Defts’ Obj. (Dkt. No. 59) at 1.
Thus, in evaluating the claims and status of only those Plaintiffs in this proposed class action, in addition to the submissions of the parties and Judge Homer’s Order, this Court finds that Judge Homer’s determination that an amendment concerning an Affirmative Defense under PLRA § 1997e(e) would be futile was neither clearly erroneous nor contrary to law. Furthermore, Judge Homer did not abuse his discretion in denying leave to amend the pleadings.
III. Conclusion Based on the foregoing discussion, it is hereby ORDERED, that Defendants’ Objections (Dkt. No. 41) to Judge Homer’s August 5, 2005 Memorandum-Decision and Order are OVERRULED, and said Memorandum-Decision and Order (Dkt. No. 40) is AFFIRMED in its ENTIRETY; and it is further
10

ORDERED, that Defendants WILL NOT be permitted to amend their Answer to assert an Eighth Affirmative Defense at paragraph 39 of the pleading; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. DATED: November 16, 2005
Albany, New York
11

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
-against-
THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants.

1:04-CV-299 (LEK/DRH)

MEMORANDUM-DECISION AND ORDER Presently before the Court is a Motion by Defendants John S. Bates, Jr., Schoharie County Sheriff, Lieutenant Jim Hazzard, Schoharie County Jail Administrator, and Schoharie County (collectively “Defendants”) to certify for immediate appeal pursuant to 28 U.S.C. § 1292(b) this Court’s Memorandum-Decision and Order of February 21, 2007 (“February 2007 Order”). Defts’ Motion for Appellate Cert. (Dkt. No. 84). The February 2007 Order granted Plaintiffs’ Motion to certify this action as a class action, and denied Defendants’ Motion for summary judgment. See February 2007 Order (Dkt. No. 82). For the following reasons, the Court denies Defendants’ Motion to certify the February 2007 Order for interlocutory appeal.

1

I. Background Plaintiffs John Kelsey (“Kelsey”) and Timothy Wright (“Wright”) (collectively
“Plaintiffs”) filed suit, individually and on behalf of others similarly situated, alleging that the Schoharie County Sheriff’s Department (“SCSD”) has an unconstitutional policy and/or practice of strip searching all individuals, including those charged with misdemeanors or held on civil matters, who enter the Schoharie County Jail (“SCJ”) regardless of the crime with which they are charged. Compl. (Dkt. No. 1) at ¶ 1. The Court presumes familiarity with the facts of this action, which are contained in the February 2007 Order.
II. Discussion Section 1292(b) “allows permissive appeals of non-final interlocutory orders that involve:
(1) a controlling question of law over which there is (2) a substantial ground for difference of opinion and which (3) will likely materially advance the ultimate termination of the litigation.” Nat’l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 161 (E.D.N.Y. 1999) (citing 28 U.S.C. § 1292(b)). Even if the moving party satisfies these criteria, a district court retains “unfettered discretion” to deny certification for appeal. Id. at 162. If a district court certifies the order for appeal, however, the court of appeals must also agree to hear the case before an interlocutory appeal can proceed. Id. at 161. The Second Circuit “has repeatedly advised [that] section 1292(b) was designed to be a rarely used exception to the final judgment rule.” Id.; see also Ryan v. Fakih, 275 F. Supp. 2d 393, 395 (E.D.N.Y. 2003) (collecting cases).
2

To determine whether there is a controlling question of law for purposes of section 1292(b), courts consider whether: “reversal of the district court’s opinion could result in dismissal of the action; reversal of the district court’s opinion, even though not resulting in dismissal, could significantly affect the conduct of the action; or, the certified issue has precedential value for a large number of cases.” Oxygenated Fuels Ass’n v. Pataki, 204 F. Supp. 2d 337, 340 (N.D.N.Y. 2002) (Mordue, D.J.). Defendants note that if the Second Circuit reversed this Court’s decision sustaining Kelsey’s and Wright’s individual claims, this action would be terminated. See Defts’ Mem. of Law (Dkt. No. 84, Attach. 4) at 3. The fact that a reversal of the Court’s decision would terminate the case strengthens Defendants’ argument for certification. The “question of law” at issue should refer to “a ‘pure’ question of law that the reviewing court ‘could decide quickly and cleanly without having to study the record.’” Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams., 426 F. Supp. 2d 125, 128 (S.D.N.Y. 2005) (quoting Ahrenholz v. Bd. of Trs. of the Univ. of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000). While the resolution of certain factual disputes are key to disposing of the instant case, Defendants do raise a legal issue as to whether a corrections officer observing an inmate in a state of undress is a “strip search” that must be supported by reasonable suspicion; this issue could be determined without factual development and would dispose of the case. See Defts’ Mem. of Law (Dkt. No. 84, Attach. 4) at 4.
However, Plaintiffs argue that there is no substantial ground for difference of opinion with regard to the Court’s holding that observing an inmate newly admitted on a non-felony charge in a state of undress is a “strip search” that must be supported by reasonable suspicion. Plntfs’ Mem. in Response (Dkt. No. 86, Attach. 4) at 3. In order to determine whether there is
3

“substantial ground for difference,” the Court “must analyze the strength of the arguments in opposition to the challenged ruling, and determine whether there is ‘substantial doubt’ that the district court’s order was correct.” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 399 F. Supp. 2d 320, 322-323 (S.D.N.Y. 2005) (internal citations and quotations omitted). As explained in the February 2007 Order, the Court’s holding is consistent with Circuit precedent and Judge Hurd’s decision in Marriot v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005), aff’d No. 05-1590-cv, 2005 U.S. App. LEXIS 25428 (2d Cir. Nov.22, 2005). See February 2007 Order (Dkt. No. 82) at 13-15.
However, Defendants, as they did in their Motion for summary judgment, argue that the oral decision in Steinberg v. County of Rockland, No. 04-CV-4889 (S.D.N.Y. May 20, 2005), Dkt. No. 84, Attach. 3, and decisions by the U.S. Courts of Appeal for the First and Seventh Circuits reach different conclusions than the Court’s Order and represent substantial ground for difference with that Order. See Defts’ Reply (Dkt. No. 87, Attach. 1) at 2. However, the Court does not believe that the cases relied on by Defendants support their contention; nor would the existence of a limited number of dissenting and non-binding decisions “present ‘the exceptional circumstances’ justifying an interlocutory appeal.” Richards v. FleetBoston Fin. Corp., No. 3:04cv-1638 (JCH), 2006 U.S. Dist. LEXIS 77150, at *6 (D. Conn. Oct. 16, 2006) (quoting Flor v. Bot Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996) (finding that circumstances did not justify certifying an interlocutory appeal despite recent Seventh Circuit and Southern District of New York decisions conflicting with the court’s previous ruling). Therefore, the Court finds that there is not “substantial doubt” that its Order was correct, and judicial resources would be conserved by avoiding an interlocutory appeal before the facts of the case are fully settled. Accordingly, the
4

Court declines to certify its February 2007 Order for interlocutory appeal.

III. Conclusion

Accordingly, it is hereby

ORDERED, that Defendants’ Motion to certify the February 2007 Order for

interlocutory appeal (Dkt. No. 84) is DENIED; and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

DATED:

May 24, 2007 Albany, New York

5

 
 Case 1:04-cv-00299-LEK-DRH Document 118 Filed 10/15/09 Page 1 of 1

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UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

KAH

. .
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day of May, two thousand and nine.

PRESENT:

HON. DENNIS JACOBS, Chief Judge HON. ROGER MINER, HON. SONIA SOTOMAYOR,
Circuit Judges.

JOHN KELSEY and TIMOTHY WRIGHT, both individually, and on behalf of a class ofothers similarly situated,
Plaintiffs-Appellees,
V.
THE COUNTY OF SCHOHARIE, JOHNS. BATES JR., both individually and his official capacity as Sheriff of-the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants-Appellants.

JUDGMENT 07-0893-cv:

The appeal in the above-captioned case from a decision and order of the United States District Court for the Northern District ofNew York having been argued on the district court record and the parties' briefs. On consideration whereof,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the decision and order of
the District Court is REVERSED and REMANDED with instructions to dismiss the action in accordance with the opinion of this Court.
FOR THE COURT, Catherine O'Hagan Wolfe, Clerk
By: Judy

fSSUED AS MANDATE:

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OCT 1 4 2009

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Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 1 of 24

No. 07-0893-cv Kelsey v. County of Schoharie

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

August Term 2008

4

5

Docket No. 07-0893-cv

6

(Argued: October 3, 2008

Decided: May 22, 2009)

7

JOHN KELSEY and TIMOTHY WRIGHT, both individually

8

and on behalf of a class of others similarly

9

situated,

10

Plaintiffs-Appellees,

MAY 222009

11

12

THE COUNTY OF SCHOHARIE, JOHNS. BATES JR., both individually

13

and his official capacity as Sheriff of the County

14

of Schoharie, and JIM HAZZARD, both individually and in

15

his capacity as Administrator of the Schoharie County

16

Jail,

17

Defendants-Appellants.

18

Before: JACOBS, Chief Judge, and MINER and SOTOMAYOR, Circuit

19

Judges.

20

Appeal by defendants-appellants Bates and Hazzard,

21

respectively the Sheriff of Schoharie County, New York, and the

22

Administrator of the Schoharie County Jail, from a Decision and

23

Order of the United States District Court for the Northern

24

District of New York (Kahn, ~.) denying their motion for summary

25

judgment in an action for injunction and damages challenging a

26

clothing exchange procedure for newly admitted jail inmates as a

27

strip search violative of the Fourth Amendment when executed

28

without reasonable suspicion, the appellants having asserted,

29

inter alia, the defense of qualified immunity.

30

Decision and Order reversed and remanded with instructions

31

to dismiss the action.

32

Judge Sotomayor dissents in a separate opinion.

1

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 2 of 24

1

Bruce Menken, Jason Rozger,

2

Beranbaum Menken Ben-Asher &

3

Bierman, LLP, New York, New York,

4

for Plaintiffs-Appellees.

5

E. Robert Keach III, Law Offices of

6

Elmer Robert Keach III, P.C.,

7

Amsterdam, New York, for

8

Plaintiffs-Appellees.

9

Gregg Johnson, Girvin & Ferlazzo,

10

P.C., Albany, New York, for

11

Defendants-Appellants.

2

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 3 of 24

1 MINER, Circuit Judge:

2

INTRODUCTION

3

Defendants-appellants JohnS. Bates Jr., Sheriff of

4 Schoharie County, New York, and Lt. Jim Hazzard, Administrator of

5 the Schoharie County Jail (together, the ''defendants") appeal

6 from a Decision and Order entered in the United States District

7

Court for the Northern District of New York (Kahn, ~.) denying

8 their motion for summary judgment in an action brought against

9 them by plaintiffs-appellees John Kelsey and Timothy Wright

10

(together, the ''plaintiffs"). Kelsey v. County of Schoharie, No.

11

1:04-CV-299, 2007 WL 603406 (N.D.N.Y. Feb. 21, 2007). The County

12

of Schoharie is also named as a defendant in the action and

13

joined in the motion. The plaintiffs seek an injunction and

14

damages, claiming that the clothing exchange procedure for newly

15 admitted inmates at the Schoharie County Jail constitutes a strip

16 search violative of the Fourth Amendment when executed without

17

reasonable suspicion. The defendants, sued in their official and

18

individual capacities, base their motion for summary judgment,

19 inter alia, on the defense of qualified immunity. The learned

20

District Court, identifying a possible constitutional violation,

21

found "material facts" in dispute and therefore rejected the

22

defense of qualified immunity, with leave to reassert the defense

23

''at the proper time." Kelsey, 2007 WL 603406, at *8. For the

24

reasons that follow, we reverse the Decision and Order of the

25

District Court and remand with instructions to dismiss the

26

action.

3

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 4 of 24

1

BACKGROUND

2 I. The Clothing Exchange According To Defendants

3

The Schoharie County Jail is operated by the Schoharie

4 County Sheriff's Department under the direction of Sheriff Bates.

5

Day-to-day responsibility for the facility is vested in Lt.

6 Hazzard as jail administrator. Bates and Hazzard have

7

established and implemented procedures for the admission of male

8

inmates to the facility and state that they have familiarized and

9 trained all subordinate personnel at the facility in these

10 procedures. Included in the intake procedure is a clothing

11

exchange, whereby newly admitted inmates are issued distinctive

12

facility clothing in exchange for their street clothes. This

13

clothing exchange requirement is applied only to those male

14

inmates who are not expected to make bail and therefore are to be

15

confined in a housing unit at the jail. According to Sheriff

16 Bates,

17

[t]he purposes of the clothing issue include, ensuring

18

that each inmate has clean clothing free of infestation

19

and to make sure that inmates are clearly identifiable

20

and can be readily distinguished from visitors, members

21

of the public and staff. For some inmates, the

22

facility-issued clothing is better than the clothing

23

and personal care items they have outside the facility

24

and thus may positively impact their state of mind

25

while being housed at the [jail]. The issuance of

26

clothing is commonly referred to as the clothing

27

exchange process.

28

Before the clothing exchange, a new inmate undergoes a

29

booking procedure. He is first transported from a sally port to

30

a holding area containing two holding cells next to a control

31 room and booking room. In the holding area, the inmate is

4

. ----------------------------------Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 5 of 24

1 required to remove his coat (if any) and empty his pockets.

2 Thereafter, he is subjected to a ''pat frisk" and sometimes to a

3 search by a hand-held metal detector, all while the inmate is

4 fully clothed. According to the Sheriff, no other type of search

5 is authorized during the intake period. The inmate then is

6 placed in a holding cell within the holding area until the

7 admitting corrections officer is ready to proceed with the

8 booking process.

9

The inmate is next required to sit beside a window in the

10 holding area. The booking room is on the other side of the

11 window, through which the inmate is interviewed by the

12 corrections officer. The officer enters the answers to his

13 questions into a computer. The questions pertain to such matters

14 as pedigree, medical information, scars and tattoos. Next, the

15 corrections officer in charge of the booking procedure returns to

16 the holding area, where he photographs and fingerprints the

17

inmate. The inmate remains in his street clothes throughout the

18

booking process.

19

It is only after the booking process is completed that the

20 clothing exchange takes place for those inmates who are to be

21 confined in one of the housing units. Although there is no

22 written policy for the clothing exchange itself, the defendants

23 insist that they have established a protocol for the clothing

24 exchange and have instructed all jail personnel in the protocol

25 as follows: A corrections officer produces in the holding area a

26 mesh property bag into which the inmate is to place his clothes.

5

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 6 of 24

--

1 The officer instructs the inmate to stand on one side of a 42" x

2 48" masonry half-wall with the officer on the other side. The

3 officer then lays out on the half-wall the jail uniform, a 48"

4 long white towel, soap and other personal items. The inmate is

5 then instructed to disrobe and place his street clothes into the

6 mesh bag, which is held open by the officer on the other side of

7 the half-wall. The inmate may use the towel for privacy as he

8 disrobes preparatory to taking a required shower and dressing in

9 the jail uniform.

10

While the inmate is showering, the officer takes the

11

inmate's street clothes to a property room across the hallway

12

from the holding area. There, the officer inspects the clothing

13

for contraband, tags it, and sends it to the laundry room for

14 washing. When he returns to the holding area, he escorts the

15 newly clothed inmate to the appropriate housing unit. The

16 protocol does not call for the officer to conduct a personal

17

search or body inspection or to observe the inmate taking a

18

shower or getting dressed. Although there is no written policy

19 specifically addressed to the clothing exchange procedure, there

20 is a written policy entitled ''Inmate Processing." Within that

21 policy is a provision for medical screening which provides: ''A

22

visual analysis of the inmate will be conducted throughout the

23 admission process."

24

A written policy for strip searches and body cavity searches

25 has been established at the jail under the title "Control of and

26 Search for Contraband." It provides that "[a] 'strip/strip frisk

6

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 7 of 24

1 search' shall not be routinely conducted." Such a search is

2 allowed only "[w]here an officer has made a determination that

3 there is reasonable suspicion to believe that the inmate should

4 be searched" or "[w]here an officer has reasonable suspicion to

5 believe an inmate is hiding contraband on his person and/or the

6 inmate is in possession of contraband." The policy provides that

7 "[w]hen inmates cooperate in the conduct of a strip/strip frisk

8 search, the inmate's body will not be touched." Body cavity

9 searches in the jail "[m]ay be authorized only in circumstances

10 where there are compelling reasons to believe that the inmate(s)

11

to be searched have secreted in a rectal/vaginal cavity

12 contraband, the nature of which constitutes a clear threat to the

13 safety and security of the facility and/or a threat to the safety

14

and well being of any person." Sheriff Bates "do[es] not recall

15 a single occasion when a [b]ody cavity search was conducted on an

16

inmate during [his] tenure as Sheriff."

17

Sheriff Bates has put forth the proposition that ''the

18

clothing exchange procedure is not intended as a personal search

19 of the inmate but rather a brief administrative process that

20 precedes newly-admitted inmates['] transport to a housing unit."

21 He has represented, "[u]pon information and belief," that

22

"inmates are never instructed to squat, bend, turn, open their

23 mouth, manipulate their body, or in any other manner expose

24 themselves for a personal search or inspection" during the

25 clothing exchange. Jail Administrator Hazzard avers that

26 corrections officers at the jail have been trained to perform the

7

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 8 of 24

1 prescribed clothing exchange procedure and that "[t]he clothing

2 exchange is simply intended to get inmates into the jail uniform

3 and secure their street clothing on their way to housing."

4 However, he is aware of three occasions when the prescribed

5 procedure was not followed: On one occasion, the corrections

6 officer left the holding area and left the inmate alone to change

7 out of his street clothes and into his prison clothes and to

8 shower. On the other two occasions, the corrections officer

9 caused the clothing exchange to take place in the holding cell

10 instead of allowing the inmate the benefit of the privacy

11 afforded by the masonry half-wall .

.

12

II. The Clothing Exchange According To Plaintiffs

13

Plaintiff Kelsey arrived at the Schoharie County Jail on

14 October 16, 2002, having been transported there from the Albany
'
15 County Jail, where he worked as a corrections officer. He had

16 been arrested for a civil violation of the Family Court Act in

17 connection with a child support matter. He underwent the booking

18 procedure, including photographing and fingerprinting, before the

19 required clothing exchange. He testified at his deposition that

20 a corrections officer laid out the jail uniform on a bench in

21 front of the half-wall. He proceeded to take off his street

22 clothes in the open booking area, as directed, in order to put on

23 the jail uniform. Kelsey asked the officer if he had to remove

24 his underwear, and the officer replied: ''Yes. Everything." The

25 officer stood directly in front of Kelsey during the clothing

26 exchange, and Kelsey placed his street clothes into a clear

8

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 9 of 24

1 garbage bag at the request of the officer.

2

In his deposition, Kelsey stated that he asked the officer

3 during the clothing exchange: "Do I have to do this here?" and

4 that the officer answered: ''Yes, you do." Kelsey testified that

5 the officer's "eyes were looking up and down my body, so I assume

6 he saw my genitals." Kelsey found the entire process

7 ''embarrassing" and ''[h]umiliating." Kelsey testified that during

8 the clothing exchange he was not prevented from turning around,

9 from going behind the half-wall or from using the towel or the

10 bag to obscure the officer's view of his body. He also stated

11

that he was not required to lift his arms, to open his mouth, to

12 expose his buttocks or to manipulate any part of his body. He

13 did not indicate that he was touched by the officer in any way.

14

The Cobleskill Police Department brought plaintiff Wright to

15 the Schoharie County Jail at about 3:30 a.m. on September 5,

16 2003, after Wright's arrest for driving while intoxicated. In
.
17 his deposition, Wright testified that, following his interview at

18 the jail, he was placed in a holding cell with the cell door

19 open. An officer then brought him a jail uniform, a white towel,

20 and a mesh bag for his street clothes. Wright sat on a bench in

21

the cell and removed his street clothing, which he placed in the

22

bag. He then proceeded to take a shower as directed, taking the

23

towel with him. He returned to the holding cell with the towel,

24

got dressed in the jail uniform and was escorted to a housing

25

unit. According to Wright, a corrections officer stood in front

26 of him as he removed his street clothes (a process that took one

9

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - ..

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 10 of 24

1 minute) and placed them in the mesh bag provided. When asked in

2 what direction he was facing as he undressed, Wright testified:

3 "At somewhat of an angle to [the officer], but I can't recall 100

4 percent which way I was facing. It was like sort of facing

5 towards the officer." Wright also testified that when he dressed

6 in the holding cell after the shower, no one was present in the

7 holding area. In response to a question relating to the mental

8 and emotional stress allegedly suffered, Wright described his

9 experience as ''rather unpleasant" and stated: "[I]t was, you

10

know, just a rather humiliating kind of - shameful kind of, just

11 being naked in front of at least one other individual and

12

possibly in the view of others."

13

Plaintiff Wright's description of the deviations from the

14

clothing exchange protocol is consistent with the deposition

15

testimony of Joseph Kenyon, a corrections officer employed at the

16

Schoharie County Jail. According to Officer Kenyon, inmates are

17

required to stand in front of him and face him during the entire

18

clothing exchange. He watches the inmates as they remove their

19 clothing, the disrobing takes place in the "holding cell where

20

the inmate is at," and there is no option to disrobe in private.

21

III. The Motion for Summary Judgment and the Decision of the

22

District Court

23

Relying upon affidavits as well as depositions and other

24

materials obtained during discovery, the defendants moved for

25

summary judgment in the District Court. They contended that the

26

clothing exchange procedure did not entail a strip search, that

10

- - - - - - - - - - - - - - - - - - - - - - - . -··-

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 11 of 24

1

inmates were allowed to preserve their privacy in various ways

2

during the exchange, and that established Jail policy permits a

3

strip search only on reasonable suspicion. Defendants also

4

raised the defense of qualified immunity in the motion.

5

Plaintiffs responded that the clothing exchange process requires

6

a visual examination of each inmate during disrobing and that

7

such examination constitutes an unreasonable search for Fourth

8

Amendment purposes when conducted without reasonable suspicion.

9

In a written opinion denying the motion for summary

10

judgment, 1 the District Court stated as follows:

11

Defendants have not met their burden to prove that

12

there is no issue of material fact as to whether [the

13

jail's] policies and practices require COs to observe

14

inmates as they remove their street clothes. However,

15

a question remains: if a CO w[ere] required to observe

16

an inmate undress, would this procedure constitute an

17

unreasonable search under the Fourth Amendment to the

18

United States Constitution?

19

Kelsey, 2007 WL 603406, at *5.

20

Consistently characterizing the clothing exchange as the

21

''Exchange/Strip Search Process" throughout its opinion, the

22

District Court examined the record and concluded that the

23

observation of a newly admitted inmate in the process of

24

disrobing is a search for contraband. Id. at *6. The District

25

Court also noted the defendants' contention that the presence of

26

a corrections officer serves as a deterrent to the transfer or

27

destruction of contraband. Id. at *6. The District Court

1

1 In the same opinion, the District Court granted

2

plaintiff's motion for class certification. Kelsey, 2007 WL

3

603406, at *14.

11

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 12 of 24

1

concluded: "If this admission is accurate, it can mean only one

2

thing: that the exchange/strip search process is meant to serve

3

as a search for contraband - even when there is no reasonable

4

suspicion to do so." Id. at *7. As the District Court correctly

5

noted, a strip search without reasonable suspicion is prohibited

6

by our precedent. However, the court made no final pronouncement

7

on the constitutionality of the search it had identified:

8

"[T]his Court cannot grant summary judgment to the Defendants

9

while there is credible conflicting evidence in the record

10

regarding the nature of the CO's observation of inmates as they

11

disrobe." Id. The District Court thus did not find that the

12

challenged searches were unreasonable. The court did find,

13

however, that the defendants were amenable to suit individually

14

"[a]s a consequence of their involvement in the maintenance of

15

[the jail's] policies and practices." Id. Finally, the court

16

briefly addressed the qualified immunity defense as follows:

17

There remains a dispute regarding material facts

18

related to the constitutionality of the exchange/strip

19

search process. As a result, it would be premature to

20

determine whether Defendants Bates and Hazzard are

21

responsible for violating clearly established

22

constitutional law or are immune from suit under the

23

qualified immunity doctrine. Defendants Bates and

24

Hazzard may renew their defense at the proper time.

25

Id. at *8.

26

ANALYSIS

27

I. Of Appealability and Qualified Immunity

28

It is the District Court's denial of qualified immunity that

29

permits the defendants to bring this appeal to us as an exception

30

to the rule of finality. See Mitchell v. Forsyth, 472 U.S. 511,

12

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 13 of 24

1

530 (1985) ("[A] district court's denial of a claim of qualified

2

immunity, to the extent that it turns on an issue of law, is an

3

appealable 'final decision' within the meaning of 28 U.S.C.

4

§ 1291 notwithstanding the absence of a final judgment.")

5

Interlocutory appeal in this sort of case "is not permitted if

6 the district court's denial of summary judgment for qualified

7

immunity rests on a finding that there were material facts in

8 dispute." Genas v. N.Y. Dep't of Corr. Servs., 75 F.3d 825, 830

9

(2d Cir. 1996). The Supreme Court teaches that "a district

10

court's summary judgment order that, though entered in a

11

'qualified immunity' case, determines only a question of

12

'evidence sufficiency,' i.e., which facts a party may, or may

13

not, be able to prove at trial . • . is not appealable.'' Johnson

14

v. Jones, 515 U.S. 304, 313 (1995).

15

Despite the bar to appealability that factual issues may

16 provide in the qualified immunity context, we have observed that

17

as long as the defendant can support an immunity

18

defense on stipulated facts, facts accepted for

19

purposes of the appeal, or the plaintiff's version of

20

the facts that the district court deemed available for

21

jury resolution, an interlocutory appeal is available

22

to assert that an immunity defense is established as a

23

matter of law.

24

Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). We accept the

25

plaintiffs' version of the facts in making our determination

26

herein, as will be seen. Accordingly, we take jurisdiction over

27

the district court's denial of defendants' motion for summary

28

judgment to the extent that the motion is grounded in qualified

29

immunity, and our review is de novo. See Jones v. Parmley, 465

13

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 14 of 24

1

F.3d 46, 55 (2d Cir. 2006).

2

Under the doctrine of qualified immunity, "government

3

officials performing discretionary functions generally are

4

shielded from liability for civil damages insofar as their

5

conduct does not violate clearly established statutory or

6

constitutional rights of which a reasonable person would have

7

known." Harlow y. Fitzgerald, 457 U.S. 800, 818 (1982). In

8 assessing an officer's eligibility for the shield, ''the

9 appropriate question is the objective inquiry whether a

10

reasonable officer could have believed that [his actions were]

11

lawful, in light of clearly established law and the information

12

the officer[] possessed." Wilson v. Layne, 526 U.S. 603, 615

13

(1999). Qualified immunity is also said to protect the

14

government officer "if it was 'objectively reasonable' for him to

15

believe that his actions were lawful at the time of the

16

challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.

17

1995) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987));

18

see also Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir.

19

2000).

20

II. Of the Threshold Inquiry

21

Until the issuance of the Supreme Court's opinion in Pearson

22

v. Callahan, 129 S. Ct. 808 (2009), the following threshold

23

inquiry was mandatory:

24

A court required to rule.upon the qualified

25

immunity issue must consider, then, this threshold

26

question: Taken in the light most favorable to the

27

party asserting the inquiry, do the facts alleged show

28

the officers' conduct violated a constitutional right.

29

This must be the initial inquiry.

14

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 15 of 24

1

• • • •

2

If no constitutional right would have been

3

violated were the allegations established, there is no

•

4

necessity for further inquiries concerning qualified

5

immunity.

6 Saucier v. Katz, 533 U.S. 194, 201 (2001). While it is now true

7

"that the Saucier protocol should not be regarded as mandatory in

8

all cases, [the Supreme Court] continue[s] to recognize that it

9 is often beneficial." Pearson, 129 S. Ct. at 818. Accordingly,

10

we are no longer required to make a "threshold inquiry" as to the

11

violation of a constitutional right in a qualified immunity

12

context, but we are free to do so. Id. at 821. The inquiry is

13

said to be appropriate in those cases where "discussion of why

14

the relevant facts do not violate clearly established law may

15 make it apparent that in fact the relevant facts do not make out

16 a constitutional violation at all." Id. at 818. This is such a

17

case. The Supreme Court's current teaching is that "the Saucier

18

Court was certainly correct in noting that the two-step procedure

19 promotes the development of constitutional precedent and is

20

especially valuable with respect to questions that do not

21

frequently arise in cases in which a qualified immunity defense

22

is unavailable." Id.

23

The development of constitutional precedent is especially

24

important here, where (1) this Court has not spoken on the issue

25

of the constitutionality of clothing exchange procedures in jails

26

although the issue has been presented in district courts in this

27

circuit, see, e.g., Marriott v. County of Montgomery, 227 F.R.D.

15

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 16 of 24

1 159, 169-70 (N.D.N.Y. 2005) (holding that a jail facility's

2 "change-out" procedure was a ''strip search" and in violation of

3 the Fourth Amendment to the Constitution); see also Williams v.

4 County of Niagara, No. 06-CV-291A, 2008 WL 4501918, at *2

5

(W.D.N.Y. Sept. 29, 2008) (involving a class action certification

6 question where the defendants argued, inter alia, that a

7 '''clothing change-out'" procedure in a jail ''does not constitute

8 a strip search and is constitutional"); and (2) the

9 constitutionality of clothing exchange procedures in jails may

10

never be developed if this Court were to dispose of all

11 challenges relating to the procedures simply because the

12 procedure is not "clearly established" as a ''strip search"

13 violative of the Fourth Amendment.

14

It is also said that addressing the constitutional issue

15

first may not only avoid the possibility of drawn-out litigation

16 and the imposition of unwarranted liability, but may also serve

17

to clarify official conduct standards. See Sound Aircraft

18

Servs., Inc. v. Town of E. Hampton, 192 F.3d 329, 334 (2d Cir.

19 1999). We think that all these purposes are served by

20 undertaking the constitutional inquiry first in this case. When

21 the facts, viewed in light most favorable to the plaintiff, do

22 not demonstrate that an officer's conduct violated a

23 constitutional right, the court need not further pursue the

24

qualified immunity inquiry, "and the officer is entitled to

25 summary judgment." Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir.

26 2007).

16

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 17 of 24

1

III. Of Strip Searches and the Fourth Amendment

2

In undertaking our threshold constitutional inquiry, we

3

first take note of our long-standing precedent covering strip

4

searches of those arrested for misdemeanors:

5

The Fourth Amendment requires an individualized

6

"reasonable suspicion that [a misdemeanor] arrestee is

7

concealing weapons or other contraband based on the

8

crime charged, the particular characteristics of the

9

arrestee and/or the circumstances of the arrest" before

10

[he] may be lawfully subjected to a strip search.

11

Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (citing Weber

12

v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)) (first alteration in

13

original); see also Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir.

14

1988). The written policy of the Schoharie County Jail tracks

15

the language of our precedent by providing that a strip search

16 may be conducted only ''[w]here an officer has made a

17

determination that there is reasonable suspicion to believe that

18

the inmate should be searched" or "[w]here an officer has

19

reasonable suspicion to believe an inmate is hiding contraband on

20

his person and/or the inmate is in possession of contraband.''

21

There is to be no touching of the body unless the inmate fails to

22

"cooperate" in the search. A much higher standard is required

23

for body cavity searches: "[c]ompelling reasons to believe that .

24

• . contraband . • . constitut[ing] a clear threat to the safety

25

and security of the facility" is concealed in a body cavity. The

26

version of events at the Schoharie County Jail described by the

27

plaintiffs do not describe a body cavity search, and Sheriff

28

Bates has indicated that no such searches have been conducted at

29

the jail during his tenure as Sheriff.

17

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 18 of 24

1

Various terms are used to describe the inspection of a naked

2

body, and the terms are distinguished by the degrees of intrusion

3

involved in the search for contraband. The term "strip search"

4

is used generally to describe any inspection of the naked body.

5

See N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2007).

6 An individual being strip searched may be required to move his

7

body in various ways to permit a more complete inspection. Id.

8 A ''visual body-cavity search" is a strip search that entails the

9

specific examination of the genitals and anus, without any bodily

10

contact by the inspector. Id. Finally, a ''manual body-cavity

11

search" is a strip search that involves a naked body examination,

12

including a viewing of the genitals and anus, by touching or

13

probing with an instrument. Id.

14

IV. Of the Clothing Exchange at the Schoharie County Jail

15

For purposes of this appeal, we accept the plaintiffs'

16

description of the clothing exchange procedure, although the

17

procedure they describe appears to deviate in certain respects

18

from the protocol purportedly established by the defendants. 2

19

See Salim, 93 F.3d at 90. We therefore proceed, taking the facts

2 Although the dissent, in several places, accuses us of having accepted the defendants' version of the facts, that is not so. Most of the half dozen plaintiffs' ''facts" that the dissent claims we ignore are expressly considered in this opinion, as the reader can confirm. Moreover, the third "fact" identified by the dissent - that Kelsey had to walk naked to obtain his prison uniform - is a distortion of the record. Kelsey testified that he ''reached over" and ''grabbed the . . . uniform," not that he "walk[ed] while naked to obtain the uniform." It is undisputed that the plaintiffs were not entirely deprived of the means for protecting their modesty.
18

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 19 of 24

1

in the light most favorable to plaintiffs, to exam•lne the

2

constitutional question presented. See Pearson, 129 S. Ct. at

3

818.

4

We first observe that the plaintiffs make no claim that they

5

were subjected to visual or manual body cavity searches.

6

Plaintiff Kelsey testified that a corrections officer stood in

7

front of him during the brief period when he removed his street

8

clothes and put on the jail uniform. Kelsey testified that he

9

''assume[d]" that the officer ''saw [his] genitals" during that

10

time. Kelsey was not asked to manipulate his body in any way or

11

to assume any particular position. Nor was he prevented from

12

protecting his privacy by turning away from the officer as he

13

undressed, by concealing the lower half of his body behind the

14

half-wall in front of which he was standing, or by using the

15

towel that was available to him during the clothing exchange. In

16

any event, briefly "seeing" a man's genitals during a clothing

17

exchange does not amount to a strip search. 3

18

Plaintiff Wright's characterization of the clothing exchange

19

as a search is even more attenuated. According to Wright, the

3 The dissent argues that "any statement by the majority about the constitutionality of forcing arrestees to strip is dicta." This ignores the entire basis of this lawsuit, which attacks a policy that (on plaintiffs' version of the facts) compels arrestees to remove all of their clothing in the presence of a watchful officer in preparation for showering and changing into prison attire. We assume, as we must, that inmates are required to remove their clothing in the presence of an officer. We nonetheless hold that the clothing exchange process, as described by plaintiffs, was not an unreasonable search under the Fourth Amendment.
19

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 20 of 24

1

clothing exchange took place in a holding cell, where he disrobed

2

in one minute as a corrections officer stood in front of him.

3 Wright testified that he undressed "[a]t somewhat of an angle" to

4

the officer but could not "recall 100 percent which way [he] was

5

facing." As best he could describe it, "[it] was like sort of

6 facing toward the officer." Apparently, a towel was available to

7 him as he disrobed, and he took the towel with him as he went to

8 take a shower before returning to the holding cell with the

9

towel. Back in the cell, he dressed in the jail uniform.

10 According to Wright's version of events, no officer was present

11 when he put on the jail uniform. Also, as with Kelsey, Wright

12

was not required to move or display his body in any particular

13 way.

14

Corrections Officer Kenyon, who supported the testimony of

15 plaintiff Wright, at least to the extent of indicating that the

16

clothing exchange took place in a holding cell (rather than

17 behind the half-wall), declared that "the purpose of the clothing

18

exchange process, as far as I know, is simply to get inmates into

19

the jail uniform and secure their street clothing.''4

.

20

Nevertheless, a necessary function of any corrections officer is

21

to observe inmates at all times, whether the inmate is eating,

22

sleeping, showering, undertaking recreational activity or

4 Contrary to the dissent's reading of our opinion, this does not suggest that the subjective intent of the corrections officers is to be considered. It supports only the fact that the corrections officers were charged with effectuating a clothing exchange.
20

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 21 of 24

1

engaging in any other activity within the confines of any jail.

2

We conclude that the incidental observation of the body of

3

an arrestee during a required clothing exchange, in the manner

4

described by plaintiffs, is not an unreasonable search under the

5

Fourth Amendment. Moreover, it seems to us that a clothing

6

exchange observed by corrections officers under the circumstances

7

described by plaintiffs is related to "maintaining institutional

8

security and preserving internal order and discipline[,]

9 essential goals that may require limitation or retraction of the

10

retained constitutional rights of both convicted prisoners and

11

pretrial detainees." Bell v. Wolfish, 441 U.S. 520, 546 (1979).

12

The objectives served by a clothing exchange, according to

13

Sheriff Bates, include assurance that each inmate has clothing

14

that is clean and free of infestation; that inmates are clearly

15

identifiable and distinguishable from visitors, staff and members

16 of the public; and that a positive state of mind be instilled in

17

each inmate.

18

In assessing the need to promote the foregoing interests, we

19

recognize that we owe "substantial deference to the professional

20

judgment of prison administrators" such as Sheriff Bates. See

21

Overton v. Bazzetta, 539 U.S. 126, 132 (2003). A clothing

22

exchange is a common practice in jails and prisons as is the need

23

for corrections officers to be vigilant at all times. See, e.g.,

24

Marriott, 227 F.R.D. at 169-70; Williams, 2008 WL 4501918, at *2;

25

see also Barber v. Overton, 496 F.3d 449, 463 (6th Cir. 2007)

26

(Cook, J., concurring) (''Corrections officers must be ever

21

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 22 of 24

1

vigilant of constant, and often innovative, threats to their

2

safety .

•

•

,,
•

(citation omitted)).

''Legitimate goals and

3

policies of the penal institution" support clothing exchanges at

4

jail intakes as well as the watchful gaze of corrections officers

5

over inmates, whether they are clothed or not. 5 Bell, 441 U.S.

6 at 546.

7

The dissent points out that inmates are afforded privacy

8 when they shower and change into prison attire during the

9

clothing exchange process. From this the dissent infers that

10

defendants have "rejected" the idea that the presence of officers

11

when inmates remove their street clothes furthers security,

12

order, and discipline in the jail. This inference is strained at

13

best; and in any event, it is not for us to decide when officers

14

should be permitted to observe inmates as they go about

15

activities of daily life in jail, or specify (under the

16

Constitution) times when inmates may not be watched. As the

17

dissent observes, the Schoharie County Jail is a "controlled

18

environment," in which inmates have a limited expectation of

19 privacy and freedom of movement. While we have an obligation to

20

set a floor of constitutionality permissible conduct, we are ill-

21

equipped to define the contours of life in jail.

22

The District Court framed the issue thus: ''[I]f a CO w[ere]

5 The dissent contends that our consideration of penological interests is inconsistent with our holding that the clothing exchange procedure did not constitute a Fourth Amendment search. However, that a court must examine penological interests if a constitutional right is implicated does not mean that a court is precluded from considering them in other circumstances.
22

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 23 of 24

1

required to observe an inmate undress, would this procedure

2

constitute an unreasonable search under the Fourth Amendment to

3

the United States Constitution?" Kelsey, 2007 WL 603406, at *5.

4

Our answer to this question is that such a procedure is not per

5

se an unreasonable search violative of the Fourth Amendment. In

6 giving this answer, we do not depart from, or erode in anyway,

7

our "clearly established" precedent "that persons charged with a

8

misdemeanor and remanded to a local correctional facility .. •

9

have a right to be free of a strip search absent reasonable

10

suspicion that they are carrying contraband or weapons . . . . "

11

Shain v. Ellison, 273 F. 3d 56, 66 (2d Cir. 2001); see also N.G.

12

v. Connecticut, 382 F.3d 225 (2d Cir. 2004) (stating that this

13

Court has ruled in several decisions that "strip searches may not

14

be performed upon adults confined after arrest for misdemeanors,

15

in the absence of reasonable suspicion concerning possession of

16

contraband" (citing Shain, 272 F.3d at 62-66; Wachtler v. County

17

of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994); Walsh v. Franco, 849

18

F.2d 66, 68-69 (2d Cir. 1988); Weber, 804 F.2d at 802)). Our

19

precedents do not control the allegations in this case.

20

We hold here only that a process for the exchange of

21

personal clothing for prison clothing under the observation of a

22

corrections officer in the manner described by plaintiffs does

23

not implicate the type of privacy protected by the Fourth

24

Amendment nor does it fall within the prohibitions established by

25

our precedents relating to strip searches. Plaintiffs were not

26

required to display or manipulate their body parts in any way.

23

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 24 of 24

1 Moreover, Plaintiffs did not deny that methods were available to

2

them to protect viewing of their private parts in the event they

3 desired to make use of such methods.

4 V. Conclusion

5

Because the plaintiffs have been unable to identify any

6 constitutional violation on the parts of the individual

7

defendants, the Decision and Order of the District Court is

8

reversed, and the case is remanded with instructions to dismiss

9

the action as against the individual defendants. Because the

10

plaintiffs lack any underlying claim of a deprivation of a

11

constitutional right, the claim of municipal liability on the

12

part of defendant County of Schoharie is to be dismissed as well.

13

See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995).

24

Case 1:04-cv-00299-LEK-DRH Document 118-3 Filed 10/15/09 Page 1 of 1
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

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\)to\-\£1<-
A\+D

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the tRlf-H? day of July , two thousand and nine.

PRESENT:

Dennis Jacobs'
ChiefJudge,
Roger J. Miner,
Circuit Judges.

JUL 24 Z009

John Kelsey, both individually and on behalf of a class ofothers similarly situated and Timothy Wright, both individually and on behalf of a class of others similarly situated,

Plaintiffs-Appellees,

ORDER

v.

Docket Number: 07-0893-cv

County of Schoharie, John S. Bates, both individually and his official capacity as Sheriff of the County of Schoharie and Jim Hazzard, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants-Appellants.

IT IS HEREBY ORDERED that the application for costs in the amount of $1,662.60 is
GRANTED.

FOR THE COURT, Catherine O'Hagan Wolfe, Clerk
By: Joy FaUe , aministrative Attorney

/'0"")">')''>~,

OCT 1 4 2009

 
 Case 1:04-cv-00299-LEK-DRH Document 119 Filed 10/16/09 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.

1:04-CV-0299 (LEK/DRH)

THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants.

ORDER This Court has received a Mandate from the Court of Appeals for the Second Circuit in the above captioned matter. Dkt. No. 118. Therein, the Second Circuit reviewed the Court’s February 21, 2007 Order (Dkt. No. 82) which granted Plaintiff’s Motion to certify class and denied Defendants’ Motion for summary judgment. By the Mandate issued January 5, 2009, the Second Circuit vacated the Judgment of this Court and ordered this Court to dismiss the above-captioned action as against both the individual Defendants and the County of Schoharie. See Dkt. No. 118. The Second Circuit also granted Defendants’ Application for costs in the amount of $1,662.60. Id. at 26. Accordingly, it is hereby

1

Case 1:04-cv-00299-LEK-DRH Document 119 Filed 10/16/09 Page 2 of 2 ORDERED, that Defendants Motion for summary judgment (Dkt. No. 47 ) is GRANTED;
and it is further ORDERED, that the above-captioned case is DISMISSED in its entirety; and it is further ORDERED, that Defendant’s Application for attorney’s fees is GRANTED, and
Defendants are awarded $1,662.60; and it is further ORDERED, that the Clerk of the Court shall serve a copies of this Order on all parties. IT IS SO ORDERED.
DATED: October 16, 2009 Albany, New York
2

 
 Case 1:04-cv-00299-LEK-DRH Document 120 Filed 10/16/09 Page 1 of 1 ===============================================================================

* * * * * UNITED STATES DISTRICT COURT * * * * *

NORTHERN

DISTRICT OF

NEW YORK

JUDGMENT IN A CIVIL CASE DOCKET NO. 1:04-CV-0299 (LEK/DRH)

JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his officialcapacity as Sheriff of the County of Schoharie, andJIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants,

JURY VERDICT. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

XX

DECISION by COURT. This action came to trial or hearing before the Court. The issues have been tried

and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that in the above entitled action, the case is DISM ISSED and judgment is entered in favor of the defendants as against the plaintiffs; IT IS FURTHER ORDERED that the plaintiffs shall pay defendants’ attorney’s fees in the amount of: $1662.60 in accordance with the Order of the Honorable Lawrence E. Kahn, United States District Judge, dated October 16, 2009.

DATE: October 16, 2009

LAWRENCE K. BAERMAN
CLERK OF THE COURT

 
 Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2005)

2005 WL 1972557 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
John KELSEY and Timothy Wright, Plaintiffs, v.
COUNTY OF SCHOHARIE; John S. Bates, Jr,; and Jim Hazzard, Defendants.
No. 04-CV-299. | Aug. 5, 2005.
Attorneys and Law Firms
Beranbaum, Menken, Ben-Asher & Bierman, New York, New York, for Plaintiffs, Bruce E. Menken, Jason, J. Rozger, of counsel.
Elmer Robert Keach, Amsterdam, New York, for Plaintiffs.
Girvin & Ferlazzo, P.C., Albany, New York, for Defendants, Gregg T. Johnson, Jacinda H. Conboy, of counsel.
Opinion
MEMORANDUM-DECISION AND ORDER
HOMER, Magistrate J.
*1 Presently pending is the motion of defendants County of Schoharie, John S. Bates, Jr., and Jim Hazzard (collectively referred to herein as the “County”) for leave to file an amended answer. Docket No. 37. Plaintiffs oppose the motion. Docket No. 38. For the reasons which follow, the County’s motion is denied.
I. Background
The two named plaintiffs commenced this action against the County on behalf of a proposed class of individuals alleging that their rights under the Fourth Amendment were violated when the County improperly strip searched them following their arrests for misdemeanor offenses. The County answered and a scheduling order was entered pursuant to Fed.R.Civ.P. 16 requiring that pleadings be amended by November 1, 2004 and discovery be completed by July 1, 2005. Docket Nos. 4, 12, 33.

II. Discussion
On June 1, 2005, the County moved for leave to file and serve an amended answer to add an affirmative defense under the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, -803(d), 110 Stat. 1321-66, -71 (1996). Under the PLRA provision in 42 U.S.C. § 1997e(e), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” The County now seeks to add the affirmative defense that plaintiffs are limited to nominal damages by § 1997e(e) because they cannot prove any physical injury.
Fed.R.Civ.P. 15(a) requires that on a motion for leave to amend a pleading, leave be “freely given when justice so requires.” This “ ‘facilitate[s] a decision on the merits” ’ and identifies the material issues of the case. Torres v. Oakland Scavenger Co., 487 U.S. 312, 320 (1988) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Courts have broad discretion to grant a party leave to amend its pleadings, Local 802, Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir.1998). Amending a pleading is futile where the proposed amendment does not cure the deficiencies in the original pleading, Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir.1995), or would not survive a motion to dismiss. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). Therefore, to determine whether the proposed amendment is futile, a court must apply “the same analysis as that applied on a motion to dismiss” under Fed.R.Civ.P. 12(b)(6). Stetz v. Reeher Enterprises, Inc., 70 F.Supp.2d 119, 121 (N.D.N.Y.1999) (McAvoy, C.J.). Accordingly, the facts alleged by the County here are treated as true and are viewed in the light most favorable to the County. See id.
The issue presented here is whether § 1997e(e) applies where plaintiffs were no longer incarcerated when the action was commenced. The plain language of § 1997e(e), the declared purpose of the PLRA, and case law support the conclusion that the limitation of § 1997e(e) is inapplicable where a plaintiff is no longer incarcerated. The plain language of § 1997e(e) limits its applicability to “a prisoner confined in a jail, prison, or other correctional facility.” That language clearly limits the provision to individuals who are incarcerated when an action is commenced. There is no dispute here that the named plaintiffs and potential class members were not incarcerated when the action was commenced.
*2 This interpretation of that language is supported by the purpose of the PLRA, which was “to curtail what
1

Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2005)

Congress perceived to be inmate abuses of the judicial process.” Ortiz v. McBride, 380 F .3d 649, 658 (2d Cir.2004); see also Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (finding that the Congressional concern motivating the enactment of the PLRA was that lawsuits had become a “recreational activity for long-term residents of our prisons” and presented “a means of gaining a short sabbatical in the nearest Federal courthouse”). Thus, where, as here, the plaintiffs are not inmates when an action is commenced, the purposes of the PLRA would not be served by application of the statute.
Although the Second Circuit has yet to address the issue, it appears that the two courts of appeals which have considered the issue have drawn the same conclusion. See Harris v. Garner, 216 F.3d 970, 976-80 (11th Cir.2000) (en banc) (“Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered while confined, without a prior showing of physical injury.”); Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir.1998) (holding that “by waiting until his release from prison Kerr avoided § 1997e(e).”).
With two exceptions discussed below, district courts have held the same. See, e.g., Smith v. Franklin County, 227 F.Supp.2d 667, 676 (E.D.Ky.2002) (holding that plaintiff who had been released from the county jail before commencing an action concerning the conditions of her incarceration was not bound by the limitations of the PLRA); Doan v. Watson, 168 F.Supp.2d 932, 935 (S.D.Ind.2001) (holding that where former inmates filed suit to recover damages based on strip searches conducted by defendants, “[b]ecause Plaintiffs filed their claims following their detention, the PLRA does not require them to produce evidence of physical injury to pursue their claims.”); Lee v. State of New York Dep’t of Correctional Servs., No. 97 Civ. 7112(DAB), 1999 WL 673339, at *4 & n. 7 (S.D.N.Y. Aug. 30, 1999) (“Moreover, at the time that this suit was filed, Plaintiff’s son was no longer even incarcerated, thereby removing him even further from the definition of ‘prisoner’ under the PLRA.”).
Defendants rely on Cox v. Malone, 199 F.Supp.2d 135 (S.D.N.Y.2002), aff’d, 56 Fed.Appx. 43 (2d Cir.2003). There, a former state prisoner sued state officials alleging the excessive use of force during a search in violation of 42 U.S.C. § 1983. Defendants moved for summary judgment on the ground, inter alia, that the physical injury alleged by plaintiff was de minimis and, therefore, failed to satisfy the physical injury requirement of § 1997e(e). The district court granted the motion, holding that § 1997e(e) applied to plaintiff even though he had been released from custody before commencing the action. The court reasoned that

*3 Section 1997e(e) ... is a substantive limitation on the type of actions that can be brought by prisoners. Its purpose is to weed out frivolous claims where only emotional injuries are alleged. This purpose is accomplished whether section 1997e(e) is applied to suits brought by inmates incarcerated at the time of filing or by former inmates incarcerated at the time of the alleged injury but subsequently released. The fortuity of release on parole does not affect the kind of damages that must be alleged in order to survive the gate-keeping function of section 1997e(e). Because plaintiff’s suit alleges only emotional injuries, it is barred by the PLRA irrespective of his status as a parolee at the time of filing.
Id. at 140. The Second Circuit affirmed the district court’s holding in an unpublished opinion “for substantially the reasons stated in the district court’s thorough and well-reasoned opinion.” 56 Fed.Appx. 43; see also Lipton v. County of Orange, 315 F.Supp.2d 434, 456 & n. 29 (S.D.N.Y.2004) (following Cox ).
Cox does not address the contrary authority discussed above and its rationale appears founded on an analysis not supported by the plain language of § 1997e(e) upon which other courts have relied. Cox correctly notes that limiting § 1997e(e) to those incarcerated at the time an action is commenced leaves to the “fortuity” of a prisoner’s release date whether he or she will fall under or escape § 1997e(e)’s limitations. However, if Congress intended § 1997e(e) to apply to prisoners released from custody when an action is commenced, statutory language to accomplish this end was available. The language chosen by Congress in § 1997e(e) plainly limited its applicability to prisoners incarcerated at the time an action is commenced, was consistent with the purposes of the PLRA, and such Congressional determination and intent are not unreasonable.
The Cox decision, of course, does not constitute binding precedent for this Court. Were it simply a matter of analyzing the Cox decision in light of the Kerr line of cases addressing the scope of § 1997e(e), the Kerr line of cases holding that the plain meaning of the language in § 1997e(e) limits its applicability to prisoners incarcerated at the time an action is commenced is most persuasive. The Second Circuit’s affirmance described that decision as “thorough and well-reasoned.” That affirmance, however, was unpublished and by Second Circuit rule,
2

Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2005)

may not be cited as authority outside the Cox litigation. See 2d Cir. R. 0.23. Thus, the question becomes whether the Second Circuit’s unpublished affirmance of Cox should lead a court in these circumstances to follow Cox.

answer would be futile. Therefore, the County’s motion to file and serve an amended answer is denied.1

For at least two reasons, it does not. First, Second Circuit Rule 0.23, restated on the Cox affirmance, explicitly limits the precedential value of the affirmance to the Cox case itself and bars its use in this and other cases. That rule should be followed unless and until the Second Circuit directs otherwise. Second, neither Cox nor the Second Circuit have directly considered or addressed the Kerr line of cases and their compelling rationale. Accordingly, for the reasons discussed above, the rationale of the Kerr line of cases is adopted. Because plaintiffs were not incarcerated at the time this action was commenced, § 1997e(e) is inapplicable and the defense which the County seeks to add in its proposed amended

III. Conclusion *4 For the reasons stated above, it is hereby ORDERED that the County’s motion to file and serve an amended answer (Docket No. 37) is DENIED. IT IS SO ORDERED.
	  

Footnotes

1

Plaintiffs also oppose the County’s motion on the ground that it is untimely. However, substantially for the reasons set forth in the

County’s Memorandum of Law (Docket No. 37) at pages 2-6, that contention, must be rejected.

	  

3

 
 Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

KeyCite Red Flag - Severe Negative Treatment Reversed and Remanded by Kelsey v. County of Schoharie, 2nd Cir.(N.Y.), May 22, 2009
2007 WL 603406 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
John KELSEY and Timothy Wright, both individually and on behalf of a class of others
similarly situated, Plaintiffs, v.
The COUNTY OF SCHOHARIE, John S. Bates, Jr., both individually and in his official capacity as Sheriff of the County of Schoharie, and Jim Hazzard, both individually and in his capacity as Administrator of the Schoharie County Jail, Defendants.
No. 1:04-CV-299. | Feb. 21, 2007.
Attorneys and Law Firms
Bruce E. Menken, Jason J. Rozger, Beranbaum, Menken Law Firm, New York, NY, Elmer R. Keach, III, Office of Elmer R. Keach, III, Amsterdam, NY, for Plaintiffs.
Gregg T. Johnson, Jacinda Hall Conboy, Girvin, Ferlazzo Law Firm, Albany, NY, for Defendants.
Opinion
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Plaintiffs John Kelsey (“Kelsey”) and Timothy Wright (“Wright”) (collectively “Plaintiffs”) filed suit, individually and on behalf of others similarly situated, alleging that the Schoharie County Sheriff’s Department (“SCSD”) has an unconstitutional policy and/or practice of strip searching all individuals, including those charged with misdemeanors or held on civil matters, who enter the Schoharie County Jail (“SCJ”) regardless of the crime with which they are charged. Compl. (Dkt. No. 1) at ¶ 1. Plaintiffs assert that Defendants John S. Bates, Jr. (“Bates”), Schoharie County Sheriff, and Lieutenant Jim Hazzard (“Hazzard”), SCJ Administrator, (collectively, with Schoharie County, “Defendants”) promulgated the written procedures that govern the complained-of practices. Id.
Presently before the Court are two motions: (1) Plaintiffs’

Motion that the Court certify this action as a class action, Dkt. No. 46, and (2) Defendants’ Motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Dkt. No. 47. For the following reasons, the Court denies Defendants’ Motion for summary judgment and certifies Plaintiffs’ proposed class.
I. Background
A. Facts Related to SCJ’s Policies and Practices SCJ is operated by the SCSD. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶ 1. Plaintiffs and Defendants agree that after all newly-admitted inmates/detainees are transported to SCJ’s holding area, it is the jail’s practice that all personal property and outer garments, belts, and shoes be surrendered and secured. Id. at ¶ 23. Additionally, a SCJ corrections officer (“CO”) conducts an external pat search of the clothed inmate, with, on occasion, the assistance of a hand-held metal detecting wand. Id. A CO also conducts a booking interview of the inmate, including a “pedigree inquiry,” suicide screen, and a tattoo inquiry. A CO also fingerprints and photographs the inmate. Id.
The parties agree that newly-admitted male inmates who are going to be housed in one of SCJ’s housing units are routinely subjected to, what Defendants term, the “clothing exchange process” (hereinafter “exchange/strip search process”). Id. at ¶ 22. However, Defendants claim that SCJ’S Search Policy expressly states that strip searches and strip frisk searches “shall not be routinely conducted” and only authorizes such searches when reasonable suspicion is present. Id. at ¶¶ 7-8. Additionally, Defendants state that the exchange/strip search process “is not an official procedure described or defined by any written Policy or Order at the SCJ.” Id. at ¶ 12. Finally, Defendants assert that “[n]o SCJ Correction Officer has been authorized to conduct any personal searches of newly-admitted inmates during the clothing exchange process in the absence of reasonable suspicion.” Id. at ¶ 13. Nor, Defendants claim, has any CO been trained to conduct searches without reasonable suspicion. Id. at ¶ 14.
*2 Defendants state that the exchange/strip search process begins with the CO providing the inmate with a 4-foot towel1, facility-issued clothing, and other personal care items. Id. at ¶ 24. A CO then instructs the inmate, who is separated from the CO by a 42″ x 48″ masonry half-wall, to undress and place his personal clothes into a mesh bag, which is taken to the SCJ property room. Id. The CO then directs the inmate to shower in the semi-private shower stall located in the holding area and to dress in the facility-issued clothing. Id. The CO will inspect the inmate’s street clothing for potential contraband in the
1

Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

property room, outside of the inmate’s view, before having it laundered. Id . Defendants state that the exchange/strip search process concludes when “after the inmate has dressed himself, a CO returns to the Holding Area and transports the inmate to a housing unit.” Id.
Plaintiffs dispute this characterization of the exchange/strip search process. Plaintiffs assert that SCJ does have a written policy governing what they term “a thorough personal search” and they point to particular sections of SCJ’s “Inmate Management” policy in support. Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach 14) at ¶ 7 (emphasis removed). One section of SCJ’s policies requires inmates to remove all personal clothes and footwear for washing and storage. Id.; see also SCJ Inmate Management Policy (Dkt. No. 72, Attach.4, Ex. C) at ¶ B(4). In a separate section of the policy, listed under the Medical Screening Form section, the SCJ requires that “[a] visual analysis of the inmate will be conducted throughout the admission process.” Id. at ¶ D. Plaintiffs argue that these two sections of the written policy read together cover, though “incompletely,” the “strip search to which Plaintiffs were subjected.” Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach.14) at ¶ 7.
Furthermore, Plaintiffs state that it is Defendants’ practice “to strip search all incoming pre-trial detainees who are not bailed out.” Id. Plaintiffs state that “[a]lthough not completely described in any written SCJ policy or order, the ‘clothing exchange’ process is a common, repeated practice that defendant Hazzard has authorized and approved.” Id. at ¶ 12 (citing Hazzard Deposition (Dkt. No. 72, Attach.5, Ex. D) at 29-30.2). Plaintiffs testified that they were directed to remove their clothes in front of the COs and away from the half-wall. See id. at ¶ 24. Plaintiffs also point to testimony by both current and former SCJ COs that they conducted exchange/strip searches of inmates in front of intake holding cells, also away from the half-wall. Id. Additionally, Plaintiffs note that there is no mention in SCJ’s written policies that the half-wall is to be used at all, even for privacy purposes, during the exchange/strip search process. See id. Plaintiffs also state that their testimony and that of Defendants’ Rule 30(b)(6) witness, Defendant Hazzard, demonstrates that the CO conducting the exchange/strip search “stand[s] in front of the detainee and hold[s] the bag out for the detainee to place his clothing in.” Id. Furthermore, there is testimony in the record that COs do observe inmates removing their underpants as part of the exchange/strip search process.3 See Kenyon Deposition (Dkt. No. 46, Attach.11, Ex. H) at 23-25.
B. Plaintiffs’ Individual Allegations *3 On September 5, 2003 at approximately 1:00 am, an Officer of the Cobleskill Police Department arrested

Plaintiff Wright for driving while intoxicated. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶ 35. The Cobleskill Police subjected Wright to a pat search, but did not conduct any other personal searches. Id. at ¶ 39. The Cobleskill Police transported Wright to SCJ at approximately 3:30 am. Id. at ¶ 40. Wright was taken to the SCJ’s Holding Area, where after completing the booking procedure, he was subjected to the exchange/strip search process. Id. at ¶¶ 42, 46-47.
Defendants state that during the exchange/strip process, Wright did not observe what the CO did while he undressed. Id. at ¶ 48. Plaintiffs deny this and state that Wright did testify that the CO was standing in front of him as he undressed. Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach.14) at ¶ 48. Moreover, when asked what direction he was facing as he got undressed, Wright testified that, as best as he could recall, he was “at somewhat of an angle to [the CO] ... It was like sort of facing towards the officer.” Wright Dep. (Dkt. No. 50, Ex. J) at 79. Defendants state that Wright took a shower and used the facility-issued towel provided to him during and after the shower. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶ 51. Plaintiffs note that Wright did not use the towel during the shower, but did use it while walking to the shower and to dry himself off after he finished showering. Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach .14) at ¶ 51. After finishing the shower, and before being transported to a SCJ housing unit, Wright was alone in the holding area and was allowed to dress himself in a facility-issued uniform. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶¶ 52-53.
The Albany County Sheriff’s Department transported Plaintiff Kelsey from Albany County Jail, where he works as a CO, to SCJ on or about October 16, 2002. Id. at ¶ 71; Plntfs’ Response (Dkt. No. 72, Attach.13) at 2. Kelsey was arrested for a civil violation of the Family Court Act after appearing in Family Court on a child support matter. Plntfs’ Response (Dkt. No. 72, Attach.13) at 2. Upon his arrival at SCJ, Kelsey was escorted to SCJ’s holding area and subjected to a booking interview; after which he was fingerprinted and required to sign various forms. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶¶ 73-74.
Before being transported to one of SCJ’s housing units, Kelsey was subjected to SCJ’s exchange/strip search process. Id. at ¶ 76. Defendants claim that Kelsey was not asked to expose his buttocks or to expose and manipulate his testicles at any time while he was at SCJ. Defts’ Statement of Material Facts (Dkt. No. 48) at ¶¶ 88-89. However, Plaintiffs again dispute this characterization; they note that Kelsey was ordered to undress while standing in front of a CO, and, as a result, Kelsey’s buttocks and testicles were exposed and viewed by the CO. Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach.14) at ¶ 88-89.
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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

II. Discussion
A. Defendants’ Motion for Summary Judgment *4 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must “ ‘resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.’ “ Brown v. Henderson, 257 F.3d 246, 251 (2d Cir.2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001)).
Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The nonmovant “must come forth with evidence sufficient to allow a reasonable jury to find in her favor.” Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990).
1. Defendants’ Official Liability Pursuant to the Existence of a Policy, Custom, or Practice Defendants argue that Plaintiffs’ claims against Schoharie County and Defendants Bates and Hazzard, in their official capacities, fail because SCJ does not have any policy, practice, or custom of conduct that requires personal searches of all newly-admitted inmates. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 10. Pursuant to 42 U.S.C. § 1983, Government defendants are responsible for constitutional violations inflicted by their employees or agents when those injuries are the result of the execution of a policy or custom made by lawmakers or those whose edicts or acts may fairly be said to represent official policy. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). In support of their assertion, Defendants state that the plain language of SCJ’s policy limits body searches to pat searches and to strip/strip frisk searches when there is reasonable suspicion. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 11. Moreover, Defendants assert that “the SCJ Clothing Issuance Policy does not authorize any inmate searches or inspections of inmates’ bodies during clothing

exchanges.” Id. at 12. Additionally, Defendants argue that the evidence in the record demonstrates that SCJ’s actual practices and procedures do not include inspection of inmates’ naked bodies. Id. Defendants specifically state that: (1) no policy maker ever authorized inmate searches/inspections during the exchange/strip search process; and (2) COs were never trained to conduct searches/inspections of inmates during the exchange/strip search process. Id. Furthermore, Defendants state:

*5 [E]ach and every one of the

senior SCJ personnel who

frequently conducted intakes and/or

worked in and around the Holding

Area have consistently testified

that: no inmate searches and

inspections were conducted beyond

the Pat Search upon entry into

Holding; the half-wall was used

during clothing exchanges; inmates

were furnished a four-foot bath

towel prior to removing their street

clothes; and inmates were free to

position

themselves

to

accommodate any level of modesty

they felt, if any.

Id. at 13. Defendants’ recitation of the circumstances surrounding the exchange/strip search implies that inmates are instructed to remove their clothes and may be allowed to use a variety of means to preserve some privacy, possibly from a CO observing the inmate, such as use of the half-wall and the facility-issued towel.

As explained above, Plaintiffs counter that sections of SCJ’s written “Inmate Processing” policy require COs to conduct a visual analysis of newly-admitted inmates throughout the admission process. Plntfs’ Response (Dkt. No. 72, Attach.13) at 9; Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach.14) at ¶ 7. The written policy does in fact require such a visual analysis, and the exchange/strip search process is not explicitly excepted from this mandate. See SCJ Inmate Management Policy (Dkt. No. 72, Attach.4, Ex. C) at 6. Moreover, Plaintiffs have also elicited testimony from Defendant Hazzard suggesting the COs’ practices may in fact result in their observing newly-admitted inmates as they disrobe. See supra, Section I.A, at 4. However, the section of SCJ’s policies requiring inmates to remove all personal clothes is in an entirely separate section of the policy from the visual analysis mandate, which is listed under a distinct section listed as the Medical Screening Form section. SCJ Inmate Management Policy (Dkt. No. 72, Attach.4, Ex. C) at ¶ D.

The parties appear to agree that inmates are required by written policy or common practice to remove their

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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

clothes-both state that SCJ’s policies and practices require newly-admitted inmates to do so before being transferred to the jail’s housing units. Nevertheless, there is a dispute between the parties as to whether SCJ’s policies and practices, as implemented, require a CO to observe a newly-admitted inmate undress. Defendants have not met their burden to prove that there is no issue of material fact as to whether SCJ’s policies and practices require COs to observe inmates as they remove their street clothes. However, a question remains: if a CO was required to observe an inmate undress, would this procedure constitute an unreasonable search under the Fourth Amendment to the United States Constitution?
2. Exchange/Strip Search Process is an Unreasonable Search For Fourth Amendment Purposes
i. Exchange/Strip Search Process is a Search for Fourth Amendment Purposes Defendants argue that the exchange/strip search conducted by SCJ before inmates enter the jail’s housing units does not constitute a “search” and, therefore, does not need to comport with the requirements of the Fourth Amendment. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 13. Moreover, Defendants submit that the possibility that a CO might observe an inmate while he undresses still does not transform the exchange/strip search into a search under the Fourth Amendment. Id. at 14. Defendants argue that a search requires some affirmative act or probing or inspection by public officials and that SCJ’s policy and practice regarding the exchange/strip search process do not include any inspection or search of inmates’ naked bodies. Id.
*6 Plaintiffs respond that the purpose of the exchange/strip search is to examine newly-arrived inmates for contraband before they are moved to the jail’s housing units, and the process must, therefore, be considered a search for Fourth Amendment purposes. Plntfs’ Response (Dkt. No. 72, Attach.13) at 11. Plaintiffs suggest that the totality of the exchange/strip search process demonstrates that the purpose is to search the detainee. Id. at 12. In support, Plaintiffs point out that Defendants admit that after the detainee’s clothing is removed, it is taken into another room and searched for contraband. Id. (citing Defts’ Statement of Material Facts (Dkt. No. 48) at ¶ 24). Additionally, Plaintiffs note that SCJ’s written policies provide that “[c]lothing worn into the jail and all other personal property items will be carefully inspected for contraband.” Id. (citing SCJ Inmate Management Policy (Dkt. No. 72, Attach.4, Ex. C) at ¶ E). Plaintiffs also cite testimony elicited from deposed COs implying that the only reason for the exchange/strip search is to search for contraband.4 Id. As a consequence, Plaintiffs assert that it is not credible for Defendants to argue that the CO conducting the

exchange/strip search process is going to avert his eyes from the detainee at the moment (when the inmate is getting undressed) when the detainee would have to transfer any contraband from his clothes to his naked person and/or to his facility-issued clothing. Id. at 13.
The record strongly suggests that the purpose behind the entire exchange/strip search process is to search inmates for contraband. Notwithstanding this likelihood, whatever the purposes for the exchange/strip search process, the disputed facts reasonably suggest that inmates are most likely required to disrobe in front of a CO, who probably observed the inmates’ bodies. This Court agrees with Judge Hurd who, in a case similar to the one at bar, stated that the purpose of the process at issue and the terminology used to describe it “does not change the observation of a naked admittee to anything other than what it is-a strip search.” Marriott v. County of Montgomery, 227 F.R.D. 159, 169 (N.D.N.Y.2005) (Hurd., D.J.), aff’d, No. 05-1590-cv, 2005 U.S.App. LEXIS 25428 (2d Cir. Nov. 22, 2005).
ii. Defendants Fail to Meet Burden that Exchange/Strip Search Process is Constitutional Absent Reasonable Suspicion Defendants assert that if the exchange/strip search process is subject to the Fourth Amendment, it is a reasonable procedure under the balancing analysis conducted in connection with the review of jail procedures promulgated under Bell v. Wolfish, 441 U.S. 520 (1979). Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 15-16. However, in the Second Circuit, the treatment of misdemeanor arrestees being held in jails is governed by Weber v. Dell, 804 F.2d 796 (2d Cir.1986) and its progeny. See Shain v. Ellison, 273 F.3d 56, 69 (2d Cir.2001) (Katzmann, J., concurring). Consequently, under the relevant Second Circuit precedent, “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.” Id. at 66. Defendants concede that newly-admitted inmates charged with misdemeanors should not be subjected to “highly invasive strip/cavity searches in the absence of reasonable suspicion.” Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 18. However, Defendants assert that there is no evidence that SCJ employed policies and/or practices that have been specifically prohibited by the Circuit. Id.
*7 However, a close reading of Second Circuit precedent suggests that the alleged practices at issue have been considered to be unconstitutional. In Marriott, Judge Hurd considered whether less intrusive inspections rise to the level of unconstitutional conduct and determined that it is unconstitutional for newly-admitted inmates charged with a misdemeanor to be required to remove all of their
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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

clothing in the presence of a CO for a visual inspection, without any reasonable suspicion to do so. See Marriott, 227 F.R.D. at 169-70. Defendants argue that SCJ’s practices are based upon legitimate security interests and that the presence of a CO serves as a deterrent to inmates seeking to destroy or transfer contraband that may be on their person. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 22. If this admission is accurate, it can mean only one thing: that the exchange/strip search process is meant to serve as a search for contraband-even when there is no reasonable suspicion to do so. The Circuit has explicitly held that, without particularized suspicion, the risk that a misdemeanor arrestee will introduce contraband into the general jail population does not warrant a strip search of all arrestees. Walsh v. Franco, 849 F.2d 66, 69 (2d Cir.1988). Accordingly, this Court cannot grant summary judgment to the Defendants while there is credible conflicting evidence in the record regarding the nature of the CO’s observation of inmates as they disrobe.

material facts related to the constitutionality of the exchange/strip search process. As a result, it would be premature to determine whether Defendants Bates and Hazzard are responsible for violating clearly established constitutional law or are immune from suit under the qualified immunity doctrine. Defendants Bates and Hazzard may renew their defense at the proper time.
B. Plaintiffs’ Motion for Class Certification Plaintiffs seek class action certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure as an injunctive relief class action, or in the alternative Rule 23(b)(3) as a money damages class action. Plntfs’ Class Cert. Mem. (Dkt. No. 46, Attach.2) at 5. Before a class can be certified under one of the provisions of Rule 23(b), Plaintiffs must satisfy the prerequisites of Rule 23(a). See FED. R. CIV. P 23(a) & (b).

3. Individual Liability of Defendants Bates and Hazzard Government officials can be sued in their individual capacities under 42 U.S.C. § 1983. Hafer v. Melo, 502 U.S. 21, 31 (1991). Bates and Hazzard must have been personally involved in the alleged constitutional deprivations in order for Plaintiffs to receive damages from them under § 1983. Williams v. Smith, 781. F.2d 319, 323 (2d Cir.1986). Personal involvement can mean that Bates and Hazzard either: (1) directly participated in the infraction; (2) failed to remedy the wrong after learning of the violation; (3) created and/or allowed unconstitutional policies or customs to continue; or (4) were grossly negligent in managing subordinates who caused the violation. Id. at 323-24. Defendant Bates has been Sheriff of Schoharie County since January, 1998. Bates Aff. (Dkt. No. 50) at ¶ 1. In that capacity, Bates reviews and approves all SCSD policies before they are adopted and implemented. Id. at ¶ 3. Defendant Hazzard, as SCJ’s Administrator, oversees written policies and procedures at the jail. Hazzard Aff. (Dkt. No. 50) at ¶¶ 1, 4. Moreover, both Defendants Bates and Hazzard admit to being responsible for developing and implementing training programs at SCJ. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 26 (citing, inter alia, Bates Aff. (Dkt. No. 50) at ¶ 7; Hazzard Aff. (Dkt. No. 50) at ¶¶ 19-24.). As a consequence of their involvement in the maintenance of SCJ’s policies and practices, Defendants Bates and Hazzard are amenable to suit in their individual capacities.
*8 The Court also dismisses Defendants Bates’s and Hazzard’s claims that they are entitled to qualified immunity. Defts’ Summ. Judgment Mem. of Law (Dkt. No. 49) at 27-28. There remains a dispute regarding

1. FRCP 23(a) Prerequisites There are four prerequisites for class certification under Rule 23(a): “(1) numerosity (a ‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common to the class’); (3) typicality (named parties’ claims or defenses ‘are typical ... of the class’); and (4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of the class’).” Amchem Prods. v. Windsor, 521 U.S. 591, 613 (1997) (quoting FED. R. CIV. P 23(a)). Plaintiffs bear the burden of demonstrating that the prerequisites exist in the case. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999) While the Court will undertake a rigorous analysis to determine if the prerequisites have been satisfied, a motion for class certification does not require the Court to consider the merits of the case. Id. As set forth in the Complaint, the proposed class is defined as:
All persons in the United States who have been or will be placed into the custody of the Schoharie County Jail after being charged with misdemeanors, violations or held on civil matters and were or will be strip searched upon their entry into the Schoharie County Jail pursuant to the policy, custom and practice of the Schoharie County Sheriff’s Department and the County of Schoharie. The class period commences on March 19, 2001, and extends to the date on which the Schoharie County Sheriff’s Department and/or the County of Schoharie are enjoined
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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion.
Compl. (Dkt. No. 1) at ¶ 9.
Numerosity: The numerosity requirement found in Rule 23(a)(1) mandates that the prospective class be so large that joinder of all members is “impracticable,” but this does not mean that joinder has to be impossible for a class to be certified. Deflumer v. Overton, 176 F.R.D. 55, 58 (N.D.N.Y.1997) (McAvoy, C.J.) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). Plaintiffs do not have to determine the precise number of potential class members, but to show that joinder is impractical Plaintiffs must show some evidence supporting a reasonable estimate of the number of potential class members. Id.
*9 During discovery, Plaintiffs requested from Defendants all inmate admission records for pre-trial detainees charged with misdemeanors, violations, violations of parole, violations of probation, or held on civil or family court matters. See Rozger Aff. in Support of Class Cert. (Dkt. No. 46, Attach.3) at ¶ 2; Plntfs’ Class Cert. Mem. (Dkt. No. 46, Attach.2) at 7; Plntfs’ Reply Class Cert. Mem. (Dkt. No. 75, Attach.6) at 12. In response to this request, Defendants produced booking sheets for approximately 1,300 individuals. Id. Defendants assert that only forty-five percent (45%) of the inmates reflected in the records disclosed to Plaintiffs were not facing felony charges and likely exchanged clothing.5 Defts’ Response Mem. to Class Cert. (Dkt. No. 71, Attach.7) at 19. Even if the Court assumes that Defendants are correct, that would mean that approximately 585 individuals would be potential class members-a significant number of parties to join in one action without certifying a class. Therefore, Plaintiffs have sufficiently met their burden with respect to the numerosity requirement.
Commonality: The commonality and typicality requirements tend to merge into one another because both seek to ensure that named plaintiffs’ claims and the class’s claims are interrelated. Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997). To sustain the commonality requirement, Plaintiffs must show that each class member’s claim shares a common question of law or fact. Id. Defendants claim that Plaintiffs’ challenge of the exchange/strip search process turns on a fact-intensive evaluation of each inmate’s particular experiences. Defts’ Response Mem. to Class Cert. (Dkt. No. 71, Attach.7) at 10. Defendants explain that Plaintiffs’ exchange/strip search experiences were not done in accordance with SCJ’s policies and practices, which means that there is no

common set of facts or law that can govern their cases and those of any proposed class. See id. at 10-11. Moreover, Defendants distinguish the present case from other cases where courts certified classes of non-felony inmates subjected to some type of strip search. Id. According to Defendants, in the previous cases, the constitutionality of official procedures requiring strip searching all new intakes was at issue, while in the instant case no strip searches were authorized by written policies or practices and no members of the potential class were searched, inspected, or even observed in a state of undress. See id. However, as discussed supra, in Section II.A, the constitutionality of SCJ’s policies and practices remains to be determined and, which Plaintiffs correctly note, is the overriding common issue of both fact and law.
Typicality: The typicality requirement is the other side of the coin: the claims of the class representatives must be typical of those of the class, which is satisfied when each class member’s claim arises from the same course of events, and each class member will make similar arguments to prove a defendant’s liability. Marisol A., 126 F.3d at 376. However, the claims of the named plaintiffs do not need to be identical to that of each class member’s claims. Marriott, 227 F.R.D. at 172 (citing McNeill v. New York City Hous. Auth., 719 F.Supp. 233, 252 (S.D.N.Y.1989)). As explained in the preceding paragraph, Plaintiffs Kelsey and Wright challenge SCJ’s policies and practices and not just the particulars of their individual exchange/strip search at SCJ. Moreover, this suit does not simply challenge the manner of the process and Plaintiffs access to a particular type of towel, but, instead, focuses on the possibility that, pursuant to SCJ’s policies and practices, non-felon inmates were forced to remove their clothes under the gaze of a CO for no good reason. Despite potentially small variations between Plaintiffs Kelsey’s and Wright’s experiences and those of potential class members, all potential class members would essentially argue the same facts and law. As a consequence, the typicality requirement is met.
*10 Adequacy of Representation: Rule 23(a)(4) requires that plaintiffs demonstrate that the proposed action will fairly and adequately protect the interests of the class. FED. R. CIV. P 23(a)(4). In order to determine whether class representatives meet this standard, courts consider several factors, including: (1) the representatives’ understanding and involvement in the lawsuit; (2) their willingness to pursue the litigation; and (3) any conflict of interest between the representatives and other members of the class. See Parker v. Time Warner Entm’t Co., L.P., 98-CV-4265, 2007 U.S. Dist. LEXIS 5838, at *38 (E.D.N.Y. January 25, 2007); Marisol A., 126 F.3d at 378. Defendants argue that Plaintiffs have a conflict of interest and cannot adequately represent members of the proposed class. Defts’ Response Mem. to Class Cert. (Dkt. No. 71, Attach.7) at 16-17. Defendants claim that under this Court’s prior ruling, the statutory limitation on money
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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

damages prescribed under the Prison Litigation Reform Act (“PLRA”) applies to individuals incarcerated on the March 19, 2004 commencement date, but does not bar Plaintiffs’ claims, in which money damages allegedly predominate, because they were not prisoners the date this action was commenced. Id. at 17-18. Defendants also assert that the allegations made by Plaintiffs are different from the experiences of individuals who completed the exchange/strip search process and, therefore, “mini-trials on liability and damages for each class plaintiff” would be required. Id. at 18.
In essence, Defendants argue that Plaintiffs’ claims are not typical of the class because of the nature of the exchange/strip search as they experienced it. However, as discussed above, the facts of SCJ’s practices and policy are disputed and the overwhelming issue is whether the general practices, not simply those as applied to Plaintiffs, are constitutional. Therefore, there is no conflict between Plaintiffs’ claims and those of a potential class. See Marriott, 227 F.R.D. at 172.
The Court finds that Defendants PLRA issue is not relevant to whether Plaintiffs will adequately represent the class. First, § 1997e(e) of the PLRA states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e) (2001). The requirement that a prisoner show physical injury before bringing an action only applies to damages and, as a result, does not apply to requests for declaratory or injunctive relief to end an allegedly unconstitutional condition of confinement. See Khalil Abdur Rahim v. Sheahan, No. 99 C 0395, 2001 U.S. Dist. LEXIS 17214, at *27 (N.D.Ill. Oct. 19, 2001) (quoting Herman v. Holiday, 238 F.3d 660, 665 (5th Cir.2001) (citing Helling v. McKinney, 509 U.S. 25, 34 (1993))). Moreover, § 1997e(e) only precludes recovery of compensatory damages absent a showing of physical injury; when a violation under § 1983 has been found, nominal and punitive damages remain available whether prisoners have met the physical injury requirement or not. Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002) (“Because Section 1997e(e) is a limitation on recovery of damages for mental and emotional injury in the absence of a showing of physical injury, it does not restrict a plaintiff’s ability to recover compensatory damages for actual injury, nominal or punitive damages, or injunctive and declaratory relief.”) At the very least, without the need to show any physical injury, members of the class who were incarcerated when this action was filed are still entitled to injunctive relief and nominal and punitive damages.

of the physical injury requirement to claims filed or commenced by prisoners currently in custody. See Harris v. Garner, 216 F.3d 970, 974-76 (11th Cir.2000). In the case at bar, Plaintiffs commenced the action after their incarceration and a prior Order of this Court found that § 1997e(e) limitations did not apply to them. Mem.-Decision & Order (Dkt. No. 65). It follows that no other potential class members commenced this suit, although they may join the class. The language of § 1997e(e) requires a showing of physical injury only in suits brought, i.e. commenced or filed, by prisoners, not those in which they join as members of a class action.
Prior to the 2003 Amendments to Rule 23, the adequacy of class counsel was also evaluated under Rule 23(a)(4). Parker, 2007 U.S. Dist. LEXIS 5838, at *38. However, evaluation of counsel is now properly considered under Rule 23(g).6 Id. Plaintiffs’ attorneys have demonstrated that they are able to represent the class in this litigation. Defendants argue that Plaintiffs’ counsel cannot represent the class because of the differences between Plaintiffs’ and the class’s claims. Defts’ Response Mem. to Class Cert. (Dkt. No. 71, Attach.7) at 16. The Court has found that Plaintiffs’ claims and the class’s claims are substantially similar, therefore, Plaintiffs counsel can adequately represent the interests of the class under Rule 23(g)(1)(B) because there is no inherent conflict in Plaintiffs’ counsel being named as counsel for the class.
Defendants also suggest that Plaintiffs’ counsel have not displayed the required diligence in prosecuting this action because of their failure to respond to discovery demands in a timely manner. Id. at 15-16. A review of Plaintiffs’ response and the docket reveals that this discovery dispute is no more than normal posturing common in any litigation and there is no suggestion in the record that Plaintiffs’ counsel has not pursued the case at bar with anything but diligence. Moreover, Plaintiffs’ counsel has adequately demonstrated their work in pursuing this claim and their experience for purposes of this Court’s consideration pursuant to Rule 23(g)(C). Plaintiffs’ counsel states that they have taken over ten (10) depositions, filed a timely class certification motion, responded to Defendants’ summary judgment motion, and taken proof to show that SCJ’s policies are unconstitutional. Plntfs’ Reply Class Cert. Mem. (Dkt. No. 75, Attach.6) at 11. This work represents a significant amount of effort and the commitment of a correspondingly significant amount of resources. Plaintiffs’ counsel also have significant experience handling class actions and § 1983 civil rights cases. See Plntfs’ Class Cert. Mem. (Dkt. No. 46, Attach .2) at 9-10. Accordingly, Plaintiffs’ counsel is qualified, experienced, and generally able to conduct the ligation.

*11 Moreover, § 1997e(e) states that no action “may be brought by a prisoner.” 42 U.S.C. § 1997e(e) (2001). Courts have found that this language limits the application

*12 Plaintiffs have met their burden and have demonstrated that Rule 23(a)’s prerequisites exist in this case. However, in order to certify the class, the Court
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Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

must next consider whether Plaintiffs have also met the requirements under Rule 23(b).

SCJ’s liability. See id. Therefore, a class action is the most efficient manner in which to proceed and certification under Rule 23(b)(3) is appropriate.

2. Rule 23(b) Requirements
i. Rule 23(b)(3) Money Damages Class In order to certify a class under Rule 23(b)(3), Plaintiffs must establish that common questions predominate over questions affecting individual plaintiffs and that class resolution is the best means of adjudicating the case. Amchem, 521 U.S. at 615. The predominance requirement is more demanding than the commonality requirement in Rule 23(a): Plaintiffs must show that the case is subject to generalized proof applicable to the class as a whole. Wal-Mart Stores, Inc. v. Visa USA Inc. (In re Visa Check/Mastermoney Antitrust Litig.), 280 F.3d 124, 136 (2d Cir.2001). In order to determine whether general proof predominates, courts must determine that the issues subject to generalized proof outweigh those issues that are subject to individualized proof. See Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219, 227-28 (2d Cir.2006) (quoting Heerwagen v. Clear Channel Commc’ns, 435 F.3d 219, 226 (2d Cir2006)). As in Augustin, the class definition at issue here includes all non-felony inmates who “were or will be strip searched upon their entry into the Schoharie County Jail pursuant to the policy, custom and practice.” Augustin, 461 F.3d at 228. Therefore, the question, as noted above, is whether the policy and practices existed and whether they were unconstitutional-questions common to all potential class members. Moreover, the existence of defenses in connection with individual plaintiffs, such as the conduct of a strip search based on contemporaneously held suspicion, does not foreclose certification because such an inquiry will only be sought against a limited number of plaintiffs. See Augustin, 461 F.3d at 229-30.
Additionally, Plaintiffs meet the second requirement under Rule 23(b)(3) because a class action would be the fairest and most efficient method of resolving the case. Courts consider four nonexclusive factors when analyzing this question: (1) the interest of the class members in maintaining separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Id. at 230. The type of violations that the newly-admitted inmates were accused of and the generally brief nature of their detention creates a reason to believe that prospective members of the class may not know that they suffered a violation of their constitutional rights in the absence of notification of the class action. Moreover, this action has already progressed and offers the possibility that one action can efficiently determine

*13 Questions related to the determination of damages due to the manner in which damages should be calculated for individual plaintiffs should not be the sole reason for denying class certification. See Visa Check, 280 F.3d at 140. The mechanism for determining individual damages does not need to be decided in order for the Court to certify the class.
ii. FRCP 23(b)(2) Injunctive Class Rule 23(b)(2) allows class 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). This type of class action is “intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 162 (2d Cir.2001). When plaintiffs seek certification under Rule 23(b)(2) and money damages, a court must assess the relative importance of the remedies sought and grant certification if the value of the injunctive or declaratory relief is predominant and class treatment is efficient. Id. at 164. To determine if injunctive relief predominates, courts should consider: (1) whether reasonable plaintiffs would bring the suit to obtain injunctive relief only; and (2) injunctive relief would be both reasonably necessary and appropriate if plaintiffs succeed. Id.
Defendants argue that certification under Rule 23(b)(2) is inappropriate because Plaintiffs do not have standing to seek an injunction. Defts’ Response Mem. to Class Cert. (Dkt. No. 71, Attach.7) at 25-26. Defendants additionally argue that injunctive relief does not predominate under the Second Circuit’s ad hoc balancing test, because Plaintiffs would not benefit from seeking an injunction and would not maintain this action if monetary relief were unavailable. Id. However, this Court does not read the language of the rule and that of the ad hoc test to be a subjective analysis of the actions of individual plaintiffs seeking to be named as class representatives. Instead, the ad hoc test seeks to determine whether “reasonable plaintiffs,” not the particular plaintiffs at issue, would bring the action absent monetary recovery. Moreover, the language of the rule does not state that plaintiffs must have standing to seek an injunction. Instead, Rule 23(b)(2) simply seeks to determine whether broad relief is necessary to redress group-wide injury.
In the instant case, SCJ’s alleged policies and practices require all non-felony inmates transferred to housing units
8

Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

to be stripped searched. A reasonable plaintiff, potentially subject to such a policy on a repeated basis, would undoubtedly maintain an action that prevented him from being subjected to a potential humiliating practice-even in the absence of monetary recovery. Broad relief may be necessary to enjoin SCJ, and it is appropriate to certify the class under Rule 23(b)(2).
*14 Additionally, having assessed the nature of the relief sought, the Court certifies a class seeking both equitable relief and damages.
III. Conclusion Accordingly, it is hereby
ORDERED, that Defendants’ Motion for summary judgment (Dkt. No. 47) is DENIED; and it is further

County Jail after being charged with misdemeanors, violations or held on civil matters and were or will be strip searched upon their entry into the Schoharie County Jail pursuant to the policy, custom and practice of the Schoharie County Sheriff’s Department and the County of Schoharie. The class period commences on March 19, 2001, and extends to the date on which the Schoharie County Sheriff’s Department and/or the County of Schoharie are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion;

ORDERED, that Plaintiffs’ Motion for class certification (Dkt. No. 46) is GRANTED; and it is further
ORDERED, that Plaintiffs’ certified class is defined as follows:
All persons in the United States who have been or will be placed into the custody of the Schoharie

and it is futher ORDERED, that the Clerk serve a copy of this Order on all parties by regular mail. IT IS SO ORDERED.
	  

Footnotes

1

Plaintiffs dispute Defendants various representations regarding the size of the towel provided to inmates; they state there is no

measurement of the towels in the record, and that Defendants refer to no testimony about the towels’ size, shape, or

standardization. Plntfs’ Statement of Material Facts (Dkt. No. 72, Attach.14) at ¶ 6.

2

During his deposition, Defendant Hazzard described the exchange/strip search as follows:

The inmate is told to take his clothes off and the officer stands there with the bag and the inmate is told to put the clothes into

the bag and he’s handed the other clothes or he can take the clothes. And the officer tells the inmate to go take a shower and

the officer takes the bag into the property room.

Hazzard Depositon (Dkt. No. 72, Attach.5, Ex. D) at 29-30.

3

Joseph Kenyon, a CO at SCJ since September 8, 2002, has regularly booked new detainees at SCJ. The following exchange from

Officer Kenyon’s deposition suggests the nature of the examination conducted by COs during the exchange/strip search process:

Q: Is the inmate required to remove his underpants in front of you?

A: Yes.

Q: And do you then search the underpants?

A: Not right there, no.

Q: You search the underpants at a later time?

A: Yes.

Kenyon Deposition (Dkt. No. 46, Attach.11, Ex. H) at 23.

Q: When you’re instructing the inmate to remove their clothing, are they given the option of removing their clothing in private

and then giving you the clothes in the bag?

Mr. Johnson: I object to the form of the question.

Go ahead.

A: No.

Q: They are required to stand in front of you and remove their clothing?

Mr. Johnson: I object to the form of the question.

You can answer.

A: Yes.

Q: Are you facing the inmate as they remove their clothes?

9

Kelsey v. County of Schoharie, Not Reported in F.Supp.2d (2007)

A: Yes. Q: Are you watching the inmate as they remove their clothing? A: Yes. Kenyon Deposition (Dkt. No. 46, Attach.11, Ex. H) at 24-25.

4

For example, when asked about the purpose of the exchange/strip search process, Defendant Hazzard stated:

A: The purpose is to-A lot of these people that come off the street are either filthy or-We do it for a health hazard. This way

here, we’re sure that they’re getting clean clothes. And that’s it, really.

Q: Is the purpose also to prevent the introduction of contraband into the facility?

A: Well, yes, anything that’s in their clothes.

Hazzard Deposition (Dkt. No. 72, Attach.5, Ex. D) at 86-87.

5

Defendant Hazzard submitted an affidavit in support of Defendants’ Response to Class Certification in which he explained that

SCJ’s records provided to Plaintiffs do not reflect the criminal charges and do not indicate which inmates completed the

exchange/strip search process. Hazzard Aff. (Dkt. No. 71, Attach.6) at ¶ 6. Instead of assuming that all non-felony admittees

completed the exchange/strip search process, Hazzard’s research indicated that approximately twelve percent (12%) of admittees

were female and twelve percent (12%) were bailed out shortly after intake, and neither group would have been directed to remove

their street clothes. Id. Additionally, approximately another thirty-two percent (32%) of admittees were male felons and, therefore,

not part of the prospective class. Id. Excluding these three categories of inmates, Hazzard determined that forty-five percent (45%)

of the inmates processed at the SCJ probably completed the exchange/strip search process.

6

FRCP 23(g)(1) states in pertinent part:

(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.

(C) In appointing class counsel, the court

(i) must 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,

the resources counsel will commit to representing the class;

FED. R. CIV. P. 23(g)(1)

	  

10

 
 Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 1 of 24

No. 07-0893-cv Kelsey v. County of Schoharie

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

August Term 2008

4

5

Docket No. 07-0893-cv

6

(Argued: October 3, 2008

Decided: May 22, 2009)

7

JOHN KELSEY and TIMOTHY WRIGHT, both individually

8

and on behalf of a class of others similarly

9

situated,

10

Plaintiffs-Appellees,

MAY 222009

11

12

THE COUNTY OF SCHOHARIE, JOHNS. BATES JR., both individually

13

and his official capacity as Sheriff of the County

14

of Schoharie, and JIM HAZZARD, both individually and in

15

his capacity as Administrator of the Schoharie County

16

Jail,

17

Defendants-Appellants.

18

Before: JACOBS, Chief Judge, and MINER and SOTOMAYOR, Circuit

19

Judges.

20

Appeal by defendants-appellants Bates and Hazzard,

21

respectively the Sheriff of Schoharie County, New York, and the

22

Administrator of the Schoharie County Jail, from a Decision and

23

Order of the United States District Court for the Northern

24

District of New York (Kahn, ~.) denying their motion for summary

25

judgment in an action for injunction and damages challenging a

26

clothing exchange procedure for newly admitted jail inmates as a

27

strip search violative of the Fourth Amendment when executed

28

without reasonable suspicion, the appellants having asserted,

29

inter alia, the defense of qualified immunity.

30

Decision and Order reversed and remanded with instructions

31

to dismiss the action.

32

Judge Sotomayor dissents in a separate opinion.

1

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 2 of 24

1

Bruce Menken, Jason Rozger,

2

Beranbaum Menken Ben-Asher &

3

Bierman, LLP, New York, New York,

4

for Plaintiffs-Appellees.

5

E. Robert Keach III, Law Offices of

6

Elmer Robert Keach III, P.C.,

7

Amsterdam, New York, for

8

Plaintiffs-Appellees.

9

Gregg Johnson, Girvin & Ferlazzo,

10

P.C., Albany, New York, for

11

Defendants-Appellants.

2

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 3 of 24

1 MINER, Circuit Judge:

2

INTRODUCTION

3

Defendants-appellants JohnS. Bates Jr., Sheriff of

4

Schoharie County, New York, and Lt. Jim Hazzard, Administrator of

5

the Schoharie County Jail (together, the ''defendants") appeal

6

from a Decision and Order entered in the United States District

7

Court for the Northern District of New York (Kahn, ~.) denying

8

their motion for summary judgment in an action brought against

9

them by plaintiffs-appellees John Kelsey and Timothy Wright

10

(together, the ''plaintiffs"). Kelsey v. County of Schoharie, No.

11

1:04-CV-299, 2007 WL 603406 (N.D.N.Y. Feb. 21, 2007). The County

12

of Schoharie is also named as a defendant in the action and

13

joined in the motion. The plaintiffs seek an injunction and

14

damages, claiming that the clothing exchange procedure for newly

15

admitted inmates at the Schoharie County Jail constitutes a strip

16

search violative of the Fourth Amendment when executed without

17

reasonable suspicion. The defendants, sued in their official and

18

individual capacities, base their motion for summary judgment,

19

inter alia, on the defense of qualified immunity. The learned

20

District Court, identifying a possible constitutional violation,

21

found "material facts" in dispute and therefore rejected the

22

defense of qualified immunity, with leave to reassert the defense

23

''at the proper time." Kelsey, 2007 WL 603406, at *8. For the

24

reasons that follow, we reverse the Decision and Order of the

25

District Court and remand with instructions to dismiss the

26

action.

3

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 4 of 24

1

BACKGROUND

2

I. The Clothing Exchange According To Defendants

3

The Schoharie County Jail is operated by the Schoharie

4

County Sheriff's Department under the direction of Sheriff Bates.

5

Day-to-day responsibility for the facility is vested in Lt.

6 Hazzard as jail administrator. Bates and Hazzard have

7

established and implemented procedures for the admission of male

8

inmates to the facility and state that they have familiarized and

9

trained all subordinate personnel at the facility in these

10

procedures. Included in the intake procedure is a clothing

11

exchange, whereby newly admitted inmates are issued distinctive

12

facility clothing in exchange for their street clothes. This

13

clothing exchange requirement is applied only to those male

14

inmates who are not expected to make bail and therefore are to be

15

confined in a housing unit at the jail. According to Sheriff

16

Bates,

17

[t]he purposes of the clothing issue include, ensuring

18

that each inmate has clean clothing free of infestation

19

and to make sure that inmates are clearly identifiable

20

and can be readily distinguished from visitors, members

21

of the public and staff. For some inmates, the

22

facility-issued clothing is better than the clothing

23

and personal care items they have outside the facility

24

and thus may positively impact their state of mind

25

while being housed at the [jail]. The issuance of

26

clothing is commonly referred to as the clothing

27

exchange process.

28

Before the clothing exchange, a new inmate undergoes a

29

booking procedure. He is first transported from a sally port to

30

a holding area containing two holding cells next to a control

31

room and booking room. In the holding area, the inmate is

4

. ----------------------------------Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 5 of 24

1

required to remove his coat (if any) and empty his pockets.

2 Thereafter, he is subjected to a ''pat frisk" and sometimes to a

3 search by a hand-held metal detector, all while the inmate is

4

fully clothed. According to the Sheriff, no other type of search

5

is authorized during the intake period. The inmate then is

6 placed in a holding cell within the holding area until the

7 admitting corrections officer is ready to proceed with the

8 booking process.

9

The inmate is next required to sit beside a window in the

10

holding area. The booking room is on the other side of the

11

window, through which the inmate is interviewed by the

12

corrections officer. The officer enters the answers to his

13 questions into a computer. The questions pertain to such matters

14

as pedigree, medical information, scars and tattoos. Next, the

15

corrections officer in charge of the booking procedure returns to

16

the holding area, where he photographs and fingerprints the

17

inmate. The inmate remains in his street clothes throughout the

18 booking process.

19

It is only after the booking process is completed that the

20

clothing exchange takes place for those inmates who are to be

21

confined in one of the housing units. Although there is no

22

written policy for the clothing exchange itself, the defendants

23

insist that they have established a protocol for the clothing

24

exchange and have instructed all jail personnel in the protocol

25

as follows: A corrections officer produces in the holding area a

26 mesh property bag into which the inmate is to place his clothes.

5

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 6 of 24

--

1 The officer instructs the inmate to stand on one side of a 42" x

2

48" masonry half-wall with the officer on the other side. The

3 officer then lays out on the half-wall the jail uniform, a 48"

4 long white towel, soap and other personal items. The inmate is

5 then instructed to disrobe and place his street clothes into the

6 mesh bag, which is held open by the officer on the other side of

7

the half-wall. The inmate may use the towel for privacy as he

8 disrobes preparatory to taking a required shower and dressing in

9 the jail uniform.

10

While the inmate is showering, the officer takes the

11

inmate's street clothes to a property room across the hallway

12

from the holding area. There, the officer inspects the clothing

13

for contraband, tags it, and sends it to the laundry room for

14

washing. When he returns to the holding area, he escorts the

15

newly clothed inmate to the appropriate housing unit. The

16

protocol does not call for the officer to conduct a personal

17

search or body inspection or to observe the inmate taking a

18

shower or getting dressed. Although there is no written policy

19

specifically addressed to the clothing exchange procedure, there

20

is a written policy entitled ''Inmate Processing." Within that

21

policy is a provision for medical screening which provides: ''A

22

visual analysis of the inmate will be conducted throughout the

23 admission process."

24

A written policy for strip searches and body cavity searches

25

has been established at the jail under the title "Control of and

26

Search for Contraband." It provides that "[a] 'strip/strip frisk

6

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 7 of 24

1

search' shall not be routinely conducted." Such a search is

2

allowed only "[w]here an officer has made a determination that

3

there is reasonable suspicion to believe that the inmate should

4

be searched" or "[w]here an officer has reasonable suspicion to

5

believe an inmate is hiding contraband on his person and/or the

6

inmate is in possession of contraband." The policy provides that

7

"[w]hen inmates cooperate in the conduct of a strip/strip frisk

8

search, the inmate's body will not be touched." Body cavity

9

searches in the jail "[m]ay be authorized only in circumstances

10 where there are compelling reasons to believe that the inmate(s)

11

to be searched have secreted in a rectal/vaginal cavity

12

contraband, the nature of which constitutes a clear threat to the

13

safety and security of the facility and/or a threat to the safety

14

and well being of any person." Sheriff Bates "do[es] not recall

15

a single occasion when a [b]ody cavity search was conducted on an

16

inmate during [his] tenure as Sheriff."

17

Sheriff Bates has put forth the proposition that ''the

18

clothing exchange procedure is not intended as a personal search

19

of the inmate but rather a brief administrative process that

20

precedes newly-admitted inmates['] transport to a housing unit."

21

He has represented, "[u]pon information and belief," that

22

"inmates are never instructed to squat, bend, turn, open their

23 mouth, manipulate their body, or in any other manner expose

24

themselves for a personal search or inspection" during the

25

clothing exchange. Jail Administrator Hazzard avers that

26

corrections officers at the jail have been trained to perform the

7

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 8 of 24

1 prescribed clothing exchange procedure and that "[t]he clothing

2 exchange is simply intended to get inmates into the jail uniform

3 and secure their street clothing on their way to housing."

4 However, he is aware of three occasions when the prescribed

5 procedure was not followed: On one occasion, the corrections

6 officer left the holding area and left the inmate alone to change

7 out of his street clothes and into his prison clothes and to

8 shower. On the other two occasions, the corrections officer

9 caused the clothing exchange to take place in the holding cell

10 instead of allowing the inmate the benefit of the privacy

11 afforded by the masonry half-wall .

.

12

II. The Clothing Exchange According To Plaintiffs

13

Plaintiff Kelsey arrived at the Schoharie County Jail on

14 October 16, 2002, having been transported there from the Albany
'
15 County Jail, where he worked as a corrections officer. He had

16 been arrested for a civil violation of the Family Court Act in

17 connection with a child support matter. He underwent the booking

18 procedure, including photographing and fingerprinting, before the

19 required clothing exchange. He testified at his deposition that

20 a corrections officer laid out the jail uniform on a bench in

21 front of the half-wall. He proceeded to take off his street

22 clothes in the open booking area, as directed, in order to put on

23 the jail uniform. Kelsey asked the officer if he had to remove

24 his underwear, and the officer replied: ''Yes. Everything." The

25 officer stood directly in front of Kelsey during the clothing

26 exchange, and Kelsey placed his street clothes into a clear

8

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 9 of 24

1 garbage bag at the request of the officer.

2

In his deposition, Kelsey stated that he asked the officer

3 during the clothing exchange: "Do I have to do this here?" and

4 that the officer answered: ''Yes, you do." Kelsey testified that

5 the officer's "eyes were looking up and down my body, so I assume

6 he saw my genitals." Kelsey found the entire process

7 ''embarrassing" and ''[h]umiliating." Kelsey testified that during

8 the clothing exchange he was not prevented from turning around,

9 from going behind the half-wall or from using the towel or the

10 bag to obscure the officer's view of his body. He also stated

11 that he was not required to lift his arms, to open his mouth, to

12 expose his buttocks or to manipulate any part of his body. He

13 did not indicate that he was touched by the officer in any way.

14

The Cobleskill Police Department brought plaintiff Wright to

15 the Schoharie County Jail at about 3:30 a.m. on September 5,

16 2003, after Wright's arrest for driving while intoxicated. In

.

17

his deposition, Wright testified that, following his interview at

18

the jail, he was placed in a holding cell with the cell door

19 open. An officer then brought him a jail uniform, a white towel,

20

and a mesh bag for his street clothes. Wright sat on a bench in

21

the cell and removed his street clothing, which he placed in the

22

bag. He then proceeded to take a shower as directed, taking the

23 towel with him. He returned to the holding cell with the towel,

24

got dressed in the jail uniform and was escorted to a housing

25 unit. According to Wright, a corrections officer stood in front

26 of him as he removed his street clothes (a process that took one

9

.. ----------------------------Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 10 of 24

1 minute) and placed them in the mesh bag provided. When asked in

2

what direction he was facing as he undressed, Wright testified:

3

"At somewhat of an angle to [the officer], but I can't recall 100

4 percent which way I was facing. It was like sort of facing

5

towards the officer." Wright also testified that when he dressed

6

in the holding cell after the shower, no one was present in the

7

holding area. In response to a question relating to the mental

8

and emotional stress allegedly suffered, Wright described his

9

experience as ''rather unpleasant" and stated: "[I]t was, you

10

know, just a rather humiliating kind of - shameful kind of, just

11

being naked in front of at least one other individual and

12

possibly in the view of others."

13

Plaintiff Wright's description of the deviations from the

14

clothing exchange protocol is consistent with the deposition

15

testimony of Joseph Kenyon, a corrections officer employed at the

16

Schoharie County Jail. According to Officer Kenyon, inmates are

17

required to stand in front of him and face him during the entire

18

clothing exchange. He watches the inmates as they remove their

19

clothing, the disrobing takes place in the "holding cell where

20

the inmate is at," and there is no option to disrobe in private.

21

III. The Motion for Summary Judgment and the Decision of the

22

District Court

23

Relying upon affidavits as well as depositions and other

24

materials obtained during discovery, the defendants moved for

25

summary judgment in the District Court. They contended that the

26

clothing exchange procedure did not entail a strip search, that

10

. - -··- - - - - - - - - - - - - - - - - - - - - - Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 11 of 24

1

inmates were allowed to preserve their privacy in various ways

2

during the exchange, and that established Jail policy permits a

3

strip search only on reasonable suspicion. Defendants also

4

raised the defense of qualified immunity in the motion.

5

Plaintiffs responded that the clothing exchange process requires

6

a visual examination of each inmate during disrobing and that

7

such examination constitutes an unreasonable search for Fourth

8

Amendment purposes when conducted without reasonable suspicion.

9

In a written opinion denying the motion for summary

10

judgment, 1 the District Court stated as follows:

11

Defendants have not met their burden to prove that

12

there is no issue of material fact as to whether [the

13

jail's] policies and practices require COs to observe

14

inmates as they remove their street clothes. However,

15

a question remains: if a CO w[ere] required to observe

16

an inmate undress, would this procedure constitute an

17

unreasonable search under the Fourth Amendment to the

18

United States Constitution?

19

Kelsey, 2007 WL 603406, at *5.

20

Consistently characterizing the clothing exchange as the

21

''Exchange/Strip Search Process" throughout its opinion, the

22

District Court examined the record and concluded that the

23

observation of a newly admitted inmate in the process of

24

disrobing is a search for contraband. Id. at *6. The District

25

Court also noted the defendants' contention that the presence of

26

a corrections officer serves as a deterrent to the transfer or

27

destruction of contraband. Id. at *6. The District Court

1

1 In the same opinion, the District Court granted

2

plaintiff's motion for class certification. Kelsey, 2007 WL

3

603406, at *14.

11

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 12 of 24

1

concluded: "If this admission is accurate, it can mean only one

2

thing: that the exchange/strip search process is meant to serve

3

as a search for contraband - even when there is no reasonable

4

suspicion to do so." Id. at *7. As the District Court correctly

5

noted, a strip search without reasonable suspicion is prohibited

6

by our precedent. However, the court made no final pronouncement

7

on the constitutionality of the search it had identified:

8

"[T]his Court cannot grant summary judgment to the Defendants

9

while there is credible conflicting evidence in the record

10

regarding the nature of the CO's observation of inmates as they

11

disrobe." Id. The District Court thus did not find that the

12

challenged searches were unreasonable. The court did find,

13

however, that the defendants were amenable to suit individually

14

"[a]s a consequence of their involvement in the maintenance of

15

[the jail's] policies and practices." Id. Finally, the court

16

briefly addressed the qualified immunity defense as follows:

17

There remains a dispute regarding material facts

18

related to the constitutionality of the exchange/strip

19

search process. As a result, it would be premature to

20

determine whether Defendants Bates and Hazzard are

21

responsible for violating clearly established

22

constitutional law or are immune from suit under the

23

qualified immunity doctrine. Defendants Bates and

24

Hazzard may renew their defense at the proper time.

25

Id. at *8.

26

ANALYSIS

27

I. Of Appealability and Qualified Immunity

28

It is the District Court's denial of qualified immunity that

29

permits the defendants to bring this appeal to us as an exception

30

to the rule of finality. See Mitchell v. Forsyth, 472 U.S. 511,

12

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 13 of 24

1

530 (1985) ("[A] district court's denial of a claim of qualified

2

immunity, to the extent that it turns on an issue of law, is an

3

appealable 'final decision' within the meaning of 28 U.S.C.

4

§ 1291 notwithstanding the absence of a final judgment.")

5

Interlocutory appeal in this sort of case "is not permitted if

6 the district court's denial of summary judgment for qualified

7

immunity rests on a finding that there were material facts in

8 dispute." Genas v. N.Y. Dep't of Corr. Servs., 75 F.3d 825, 830

9

(2d Cir. 1996). The Supreme Court teaches that "a district

10

court's summary judgment order that, though entered in a

11

'qualified immunity' case, determines only a question of

12

'evidence sufficiency,' i.e., which facts a party may, or may

13

not, be able to prove at trial . • . is not appealable.'' Johnson

14

v. Jones, 515 U.S. 304, 313 (1995).

15

Despite the bar to appealability that factual issues may

16 provide in the qualified immunity context, we have observed that

17

as long as the defendant can support an immunity

18

defense on stipulated facts, facts accepted for

19

purposes of the appeal, or the plaintiff's version of

20

the facts that the district court deemed available for

21

jury resolution, an interlocutory appeal is available

22

to assert that an immunity defense is established as a

23

matter of law.

24

Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). We accept the

25

plaintiffs' version of the facts in making our determination

26

herein, as will be seen. Accordingly, we take jurisdiction over

27

the district court's denial of defendants' motion for summary

28

judgment to the extent that the motion is grounded in qualified

29

immunity, and our review is de novo. See Jones v. Parmley, 465

13

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 14 of 24

1

F.3d 46, 55 (2d Cir. 2006).

2

Under the doctrine of qualified immunity, "government

3

officials performing discretionary functions generally are

4

shielded from liability for civil damages insofar as their

5

conduct does not violate clearly established statutory or

6

constitutional rights of which a reasonable person would have

7

known." Harlow y. Fitzgerald, 457 U.S. 800, 818 (1982). In

8 assessing an officer's eligibility for the shield, ''the

9 appropriate question is the objective inquiry whether a

10

reasonable officer could have believed that [his actions were]

11

lawful, in light of clearly established law and the information

12

the officer[] possessed." Wilson v. Layne, 526 U.S. 603, 615

13

(1999). Qualified immunity is also said to protect the

14

government officer "if it was 'objectively reasonable' for him to

15

believe that his actions were lawful at the time of the

16

challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.

17

1995) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987));

18

see also Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir.

19

2000).

20

II. Of the Threshold Inquiry

21

Until the issuance of the Supreme Court's opinion in Pearson

22

v. Callahan, 129 S. Ct. 808 (2009), the following threshold

23

inquiry was mandatory:

24

A court required to rule.upon the qualified

25

immunity issue must consider, then, this threshold

26

question: Taken in the light most favorable to the

27

party asserting the inquiry, do the facts alleged show

28

the officers' conduct violated a constitutional right.

29

This must be the initial inquiry.

14

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 15 of 24

1

• • • •

2

If no constitutional right would have been

3

violated were the allegations established, there is no

•

4

necessity for further inquiries concerning qualified

5

immunity.

6 Saucier v. Katz, 533 U.S. 194, 201 (2001). While it is now true

7

"that the Saucier protocol should not be regarded as mandatory in

8

all cases, [the Supreme Court] continue[s] to recognize that it

9 is often beneficial." Pearson, 129 S. Ct. at 818. Accordingly,

10

we are no longer required to make a "threshold inquiry" as to the

11

violation of a constitutional right in a qualified immunity

12

context, but we are free to do so. Id. at 821. The inquiry is

13

said to be appropriate in those cases where "discussion of why

14

the relevant facts do not violate clearly established law may

15 make it apparent that in fact the relevant facts do not make out

16 a constitutional violation at all." Id. at 818. This is such a

17

case. The Supreme Court's current teaching is that "the Saucier

18

Court was certainly correct in noting that the two-step procedure

19 promotes the development of constitutional precedent and is

20

especially valuable with respect to questions that do not

21

frequently arise in cases in which a qualified immunity defense

22

is unavailable." Id.

23

The development of constitutional precedent is especially

24

important here, where (1) this Court has not spoken on the issue

25

of the constitutionality of clothing exchange procedures in jails

26

although the issue has been presented in district courts in this

27

circuit, see, e.g., Marriott v. County of Montgomery, 227 F.R.D.

15

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 16 of 24

1 159, 169-70 (N.D.N.Y. 2005) (holding that a jail facility's

2 "change-out" procedure was a ''strip search" and in violation of

3 the Fourth Amendment to the Constitution); see also Williams v.

4 County of Niagara, No. 06-CV-291A, 2008 WL 4501918, at *2

5

(W.D.N.Y. Sept. 29, 2008) (involving a class action certification

6 question where the defendants argued, inter alia, that a

7 '''clothing change-out'" procedure in a jail ''does not constitute

8 a strip search and is constitutional"); and (2) the

9 constitutionality of clothing exchange procedures in jails may

10

never be developed if this Court were to dispose of all

11 challenges relating to the procedures simply because the

12 procedure is not "clearly established" as a ''strip search"

13 violative of the Fourth Amendment.

14

It is also said that addressing the constitutional issue

15

first may not only avoid the possibility of drawn-out litigation

16 and the imposition of unwarranted liability, but may also serve

17

to clarify official conduct standards. See Sound Aircraft

18

Servs., Inc. v. Town of E. Hampton, 192 F.3d 329, 334 (2d Cir.

19 1999). We think that all these purposes are served by

20 undertaking the constitutional inquiry first in this case. When

21 the facts, viewed in light most favorable to the plaintiff, do

22 not demonstrate that an officer's conduct violated a

23 constitutional right, the court need not further pursue the

24

qualified immunity inquiry, "and the officer is entitled to

25 summary judgment." Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir.

26 2007).

16

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 17 of 24

1

III. Of Strip Searches and the Fourth Amendment

2

In undertaking our threshold constitutional inquiry, we

3

first take note of our long-standing precedent covering strip

4

searches of those arrested for misdemeanors:

5

The Fourth Amendment requires an individualized

6

"reasonable suspicion that [a misdemeanor] arrestee is

7

concealing weapons or other contraband based on the

8

crime charged, the particular characteristics of the

9

arrestee and/or the circumstances of the arrest" before

10

[he] may be lawfully subjected to a strip search.

11

Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (citing Weber

12

v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)) (first alteration in

13

original); see also Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir.

14

1988). The written policy of the Schoharie County Jail tracks

15

the language of our precedent by providing that a strip search

16 may be conducted only ''[w]here an officer has made a

17

determination that there is reasonable suspicion to believe that

18

the inmate should be searched" or "[w]here an officer has

19

reasonable suspicion to believe an inmate is hiding contraband on

20

his person and/or the inmate is in possession of contraband.''

21

There is to be no touching of the body unless the inmate fails to

22

"cooperate" in the search. A much higher standard is required

23

for body cavity searches: "[c]ompelling reasons to believe that .

24

• . contraband . • . constitut[ing] a clear threat to the safety

25

and security of the facility" is concealed in a body cavity. The

26

version of events at the Schoharie County Jail described by the

27

plaintiffs do not describe a body cavity search, and Sheriff

28

Bates has indicated that no such searches have been conducted at

29

the jail during his tenure as Sheriff.

17

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 18 of 24

1

Various terms are used to describe the inspection of a naked

2

body, and the terms are distinguished by the degrees of intrusion

3

involved in the search for contraband. The term "strip search"

4

is used generally to describe any inspection of the naked body.

5

See N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2007).

6

An individual being strip searched may be required to move his

7

body in various ways to permit a more complete inspection. Id.

8

A ''visual body-cavity search" is a strip search that entails the

9

specific examination of the genitals and anus, without any bodily

10

contact by the inspector. Id. Finally, a ''manual body-cavity

11

search" is a strip search that involves a naked body examination,

12

including a viewing of the genitals and anus, by touching or

13

probing with an instrument. Id.

14

IV. Of the Clothing Exchange at the Schoharie County Jail

15

For purposes of this appeal, we accept the plaintiffs'

16

description of the clothing exchange procedure, although the

17

procedure they describe appears to deviate in certain respects

18

from the protocol purportedly established by the defendants. 2

19

See Salim, 93 F.3d at 90. We therefore proceed, taking the facts

2 Although the dissent, in several places, accuses us of having accepted the defendants' version of the facts, that is not so. Most of the half dozen plaintiffs' ''facts" that the dissent claims we ignore are expressly considered in this opinion, as the reader can confirm. Moreover, the third "fact" identified by the dissent - that Kelsey had to walk naked to obtain his prison uniform - is a distortion of the record. Kelsey testified that he ''reached over" and ''grabbed the . . . uniform," not that he "walk[ed] while naked to obtain the uniform." It is undisputed that the plaintiffs were not entirely deprived of the means for protecting their modesty.
18

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 19 of 24

1

in the light most favorable to plaintiffs, to exam•lne the

2

constitutional question presented. See Pearson, 129 S. Ct. at

3

818.

4

We first observe that the plaintiffs make no claim that they

5

were subjected to visual or manual body cavity searches.

6

Plaintiff Kelsey testified that a corrections officer stood in

7

front of him during the brief period when he removed his street

8

clothes and put on the jail uniform. Kelsey testified that he

9

''assume[d]" that the officer ''saw [his] genitals" during that

10

time. Kelsey was not asked to manipulate his body in any way or

11

to assume any particular position. Nor was he prevented from

12

protecting his privacy by turning away from the officer as he

13

undressed, by concealing the lower half of his body behind the

14

half-wall in front of which he was standing, or by using the

15

towel that was available to him during the clothing exchange. In

16

any event, briefly "seeing" a man's genitals during a clothing

17

exchange does not amount to a strip search. 3

18

Plaintiff Wright's characterization of the clothing exchange

19

as a search is even more attenuated. According to Wright, the

3 The dissent argues that "any statement by the majority
about the constitutionality of forcing arrestees to strip is dicta." This ignores the entire basis of this lawsuit, which attacks a policy that (on plaintiffs' version of the facts) compels arrestees to remove all of their clothing in the presence of a watchful officer in preparation for showering and changing into prison attire. We assume, as we must, that inmates are required to remove their clothing in the presence of an officer. We nonetheless hold that the clothing exchange process, as described by plaintiffs, was not an unreasonable search under the Fourth Amendment.
19

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 20 of 24

1

clothing exchange took place in a holding cell, where he disrobed

2

in one minute as a corrections officer stood in front of him.

3 Wright testified that he undressed "[a]t somewhat of an angle" to

4

the officer but could not "recall 100 percent which way [he] was

5

facing." As best he could describe it, "[it] was like sort of

6 facing toward the officer." Apparently, a towel was available to

7 him as he disrobed, and he took the towel with him as he went to

8 take a shower before returning to the holding cell with the

9

towel. Back in the cell, he dressed in the jail uniform.

10 According to Wright's version of events, no officer was present

11 when he put on the jail uniform. Also, as with Kelsey, Wright

12

was not required to move or display his body in any particular

13 way.

14

Corrections Officer Kenyon, who supported the testimony of

15 plaintiff Wright, at least to the extent of indicating that the

16

clothing exchange took place in a holding cell (rather than

17 behind the half-wall), declared that "the purpose of the clothing

18

exchange process, as far as I know, is simply to get inmates into

19

the jail uniform and secure their street clothing.''4

.

20

Nevertheless, a necessary function of any corrections officer is

21

to observe inmates at all times, whether the inmate is eating,

22

sleeping, showering, undertaking recreational activity or

4 Contrary to the dissent's reading of our opinion, this does not suggest that the subjective intent of the corrections officers is to be considered. It supports only the fact that the corrections officers were charged with effectuating a clothing exchange.
20

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 21 of 24

1

engaging in any other activity within the confines of any jail.

2

We conclude that the incidental observation of the body of

3

an arrestee during a required clothing exchange, in the manner

4

described by plaintiffs, is not an unreasonable search under the

5

Fourth Amendment. Moreover, it seems to us that a clothing

6

exchange observed by corrections officers under the circumstances

7

described by plaintiffs is related to "maintaining institutional

8

security and preserving internal order and discipline[,]

9

essential goals that may require limitation or retraction of the

10

retained constitutional rights of both convicted prisoners and

11

pretrial detainees." Bell v. Wolfish, 441 U.S. 520, 546 (1979).

12

The objectives served by a clothing exchange, according to

13

Sheriff Bates, include assurance that each inmate has clothing

14

that is clean and free of infestation; that inmates are clearly

15

identifiable and distinguishable from visitors, staff and members

16

of the public; and that a positive state of mind be instilled in

17

each inmate.

18

In assessing the need to promote the foregoing interests, we

19

recognize that we owe "substantial deference to the professional

20

judgment of prison administrators" such as Sheriff Bates. See

21

Overton v. Bazzetta, 539 U.S. 126, 132 (2003). A clothing

22

exchange is a common practice in jails and prisons as is the need

23

for corrections officers to be vigilant at all times. See, e.g.,

24

Marriott, 227 F.R.D. at 169-70; Williams, 2008 WL 4501918, at *2;

25

see also Barber v. Overton, 496 F.3d 449, 463 (6th Cir. 2007)

26

(Cook, J., concurring) (''Corrections officers must be ever

21

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 22 of 24

1

vigilant of constant, and often innovative, threats to their

2

safety .

•

•

,,
•

(citation omitted)).

''Legitimate goals and

3

policies of the penal institution" support clothing exchanges at

4

jail intakes as well as the watchful gaze of corrections officers

5

over inmates, whether they are clothed or not. 5 Bell, 441 U.S.

6 at 546.

7

The dissent points out that inmates are afforded privacy

8 when they shower and change into prison attire during the

9

clothing exchange process. From this the dissent infers that

10

defendants have "rejected" the idea that the presence of officers

11

when inmates remove their street clothes furthers security,

12

order, and discipline in the jail. This inference is strained at

13

best; and in any event, it is not for us to decide when officers

14

should be permitted to observe inmates as they go about

15

activities of daily life in jail, or specify (under the

16

Constitution) times when inmates may not be watched. As the

17

dissent observes, the Schoharie County Jail is a "controlled

18

environment," in which inmates have a limited expectation of

19 privacy and freedom of movement. While we have an obligation to

20

set a floor of constitutionality permissible conduct, we are ill-

21

equipped to define the contours of life in jail.

22

The District Court framed the issue thus: ''[I]f a CO w[ere]

5 The dissent contends that our consideration of penological interests is inconsistent with our holding that the clothing exchange procedure did not constitute a Fourth Amendment search. However, that a court must examine penological interests if a constitutional right is implicated does not mean that a court is precluded from considering them in other circumstances.
22

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 23 of 24

1

required to observe an inmate undress, would this procedure

2

constitute an unreasonable search under the Fourth Amendment to

3

the United States Constitution?" Kelsey, 2007 WL 603406, at *5.

4

Our answer to this question is that such a procedure is not per

5

se an unreasonable search violative of the Fourth Amendment. In

6

giving this answer, we do not depart from, or erode in anyway,

7

our "clearly established" precedent "that persons charged with a

8

misdemeanor and remanded to a local correctional facility .. •

9 have a right to be free of a strip search absent reasonable

10

suspicion that they are carrying contraband or weapons . . . . "

11

Shain v. Ellison, 273 F. 3d 56, 66 (2d Cir. 2001); see also N.G.

12

v. Connecticut, 382 F.3d 225 (2d Cir. 2004) (stating that this

13

Court has ruled in several decisions that "strip searches may not

14

be performed upon adults confined after arrest for misdemeanors,

15

in the absence of reasonable suspicion concerning possession of

16

contraband" (citing Shain, 272 F.3d at 62-66; Wachtler v. County

17

of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994); Walsh v. Franco, 849

18

F.2d 66, 68-69 (2d Cir. 1988); Weber, 804 F.2d at 802)). Our

19

precedents do not control the allegations in this case.

20

We hold here only that a process for the exchange of

21

personal clothing for prison clothing under the observation of a

22

corrections officer in the manner described by plaintiffs does

23

not implicate the type of privacy protected by the Fourth

24

Amendment nor does it fall within the prohibitions established by

25

our precedents relating to strip searches. Plaintiffs were not

26

required to display or manipulate their body parts in any way.

23

Case 1:04-cv-00299-LEK-DRH Document 118-2 Filed 10/15/09 Page 24 of 24

1 Moreover, Plaintiffs did not deny that methods were available to

2

them to protect viewing of their private parts in the event they

3 desired to make use of such methods.

4 V. Conclusion

5

Because the plaintiffs have been unable to identify any

6 constitutional violation on the parts of the individual

7

defendants, the Decision and Order of the District Court is

8

reversed, and the case is remanded with instructions to dismiss

9

the action as against the individual defendants. Because the

10

plaintiffs lack any underlying claim of a deprivation of a

11

constitutional right, the claim of municipal liability on the

12

part of defendant County of Schoharie is to be dismissed as well.

13

See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995).

24

 
 Case 1:04-cv-00299-LEK-DRH Document 119 Filed 10/16/09 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.

1:04-CV-0299 (LEK/DRH)

THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants.

ORDER This Court has received a Mandate from the Court of Appeals for the Second Circuit in the above captioned matter. Dkt. No. 118. Therein, the Second Circuit reviewed the Court’s February 21, 2007 Order (Dkt. No. 82) which granted Plaintiff’s Motion to certify class and denied Defendants’ Motion for summary judgment. By the Mandate issued January 5, 2009, the Second Circuit vacated the Judgment of this Court and ordered this Court to dismiss the above-captioned action as against both the individual Defendants and the County of Schoharie. See Dkt. No. 118. The Second Circuit also granted Defendants’ Application for costs in the amount of $1,662.60. Id. at 26. Accordingly, it is hereby

1

Case 1:04-cv-00299-LEK-DRH Document 119 Filed 10/16/09 Page 2 of 2 ORDERED, that Defendants Motion for summary judgment (Dkt. No. 47 ) is GRANTED;
and it is further ORDERED, that the above-captioned case is DISMISSED in its entirety; and it is further ORDERED, that Defendant’s Application for attorney’s fees is GRANTED, and
Defendants are awarded $1,662.60; and it is further ORDERED, that the Clerk of the Court shall serve a copies of this Order on all parties. IT IS SO ORDERED.
DATED: October 16, 2009 Albany, New York
2

 
 Case 1:04-cv-00299-LEK-DRH Document 123 Filed 02/23/10 Page 1 of 1 ===============================================================================

* * * * * UNITED STATES DISTRICT COURT * * * * *

NORTHERN

DISTRICT OF

NEW YORK

JUDGMENT IN A CIVIL CASE DOCKET NO. 1:04-CV-0299 (LEK/DRH)

JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF SCHOHARIE, JOHN S. BATES, JR., both individually and in his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail,
Defendants,

JURY VERDICT. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

XX

DECISION by COURT. This action came to trial or hearing before the Court. The issues have been tried

and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that in the above entitled action, costs in the amount of Three Thousand, Four Hundred and Eighty Seven US Dollars and 20 cents ($3,487.20) be entered against the above listed plaintiffs, in accordance with the Bill of Cost Order, dated January 05, 2010.

DATE: February 23, 2010

LAWRENCE K. BAERMAN
CLERK OF THE COURT

 
 CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 5.1.1]
(Albany) CIVIL DOCKET FOR CASE #: 1:04−cv−00299−LEK−DRH

Kelsey et al v. County of Schoharie et al Assigned to: Senior Judge Lawrence E. Kahn Referred to: Magistrate Judge David R. Homer Case in other court: Second Circuit USCA, 07−00893−cv Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/19/2004 Date Terminated: 10/16/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

John Kelsey both individually and on behalf of a class of others similarly situated

represented by 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

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

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

Plaintiff
Timothy Wright both individually and on behalf of a class of others similarly situated

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

Bruce E. Menken (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant County of Schoharie
Defendant John S. Bates, Jr. both individually and in his official capacity as Sheriff of the County of Schoharie Defendant Jim Hazzard both individually and in his capacity as Administrator of the Schoharie County Jail

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 ATTORNEY TO BE NOTICED
represented by Gregg T. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Gregg T. Johnson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/19/2004
03/19/2004 03/19/2004
04/19/2004 04/26/2004 04/26/2004 05/12/2004

# Docket Text
1 COMPLAINT against John S. Bates Jr., County of Schoharie, Jim Hazzard ( Filing fee $ 150 receipt number 72705.), filed by John Kelsey, Timothy Wright.(wbl, ) (Entered: 03/22/2004)
Summons Issued as to John S. Bates Jr., County of Schoharie, Jim Hazzard. (wbl, ) (Entered: 03/22/2004)
2 G.O. 25 FILING ORDER ISSUED Initial Conference set for 7/27/2004 10:30 AM in Albany before Magistrate Judge David R. Homer. Civil Case Management Plan due by 7/19/2004. (wbl, ) (Entered: 03/22/2004)
3 SUMMONS Returned Executed by John Kelsey, Timothy Wright. John S. Bates Jr. served on 4/5/2004, answer due 4/26/2004. (tab, ) (Entered: 04/19/2004)
4 ANSWER to Complaint by John S. Bates Jr., County of Schoharie, Jim Hazzard.(Yatsco, Tanya) (Entered: 04/26/2004)
5 CERTIFICATE OF SERVICE by John S. Bates Jr., County of Schoharie, Jim Hazzard of Answer to Complaint (Yatsco, Tanya) (Entered: 04/26/2004)
6 CIVIL CASE MANAGEMENT PLAN by John Kelsey, Timothy Wright. (Attachments: # 1 Letter to Court Regarding Filing of Case Management Plan)(Keach, Elmer) (Entered: 05/12/2004)

06/01/2004 06/01/2004 06/01/2004 07/25/2004
07/27/2004 07/27/2004
07/28/2004 07/28/2004 08/27/2004
09/07/2004 09/07/2004 09/07/2004 09/30/2004 09/30/2004 10/07/2004 10/15/2004 10/16/2004
11/12/2004 11/23/2004 12/06/2004 02/14/2005

7 AFFIDAVIT of Service for Affidavit of Service served on County of Schoharie on April 5, 2004, filed by John Kelsey. (Rozger, Jason) (Entered: 06/01/2004)
8 AFFIDAVIT of Service for Affidavit of Service served on Jim Hazzard on April 5, 2004, filed by John Kelsey. (Rozger, Jason) (Entered: 06/01/2004)
9 AFFIDAVIT of Service for Affidavit of Service served on John S. Bates, Jr. on April 5, 2004, filed by John Kelsey. (Rozger, Jason) (Entered: 06/01/2004)
10 Letter from Tanya A. Yatsco for John S. Bates Jr., County of Schoharie, Jim Hazzard requesting Consideration of Defendants' CCMP. (Yatsco, Tanya) (Entered: 07/25/2004)
11 ORDER TO SHOW CAUSE/MOTION to show why defendants should not be Compelled to obtain seperate counsel .(tab) (Entered: 07/27/2004)
12 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 10 days. Preferred Trial Location: Albany, NY. Joinder of Parties due by 11/1/2004. Amended Pleadings due by 11/1/2004. Discovery due by 4/1/2005. Motions to be filed by 6/1/2005. Trial Ready Deadline is 6/1/2005. Jury Trial set for 9/27/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Parties opt out of ADR. Signed by Judge David R. Homer on 7/27/04. (tab) (Entered: 07/27/2004)
13 Minute Entry for proceedings held before Judge David R. Homer : Initial Pretrial Conference held on 7/27/2004. (tab) (Entered: 07/28/2004)
14 NOTICE of Hearing: Status Conference set for 11/10/2004 10:00 AM in Albany before Magistrate Judge David R. Homer. (tab) (Entered: 07/28/2004)
15 NOTICE by John S. Bates Jr., County of Schoharie, Jim Hazzard of In Camera Submission Regarding Joint Representation (Attachments: # 1 Certificate of Service)(Johnson, Gregg) (Entered: 08/27/2004)
16 ORDER re 11 MOTION to Compel. Signed by Judge David R. Homer on 9/7/04. (tab) (Entered: 09/13/2004)
17 ORDER APPROVING DEFENDANT'S WAIVER OF POTENTIAL CONFLICT . Signed by Judge David R. Homer on 9/7/04. (ban) (Entered: 09/14/2004)
18 SEALED DOCUMENT (Attorney Affidavits)− maintained in Clerk's Office and not available for electronic viewing (tab) (Entered: 09/16/2004)
19 Letter for John Kelsey requesting discovery conference. (Attachments: # 1 Exhibit A)(Rozger, Jason) (Entered: 09/30/2004)
20 LETTER BRIEF REGARDING DISCOVERY DISPUTE by John S. Bates Jr., County of Schoharie, Jim Hazzard. (Yatsco, Tanya) (Entered: 09/30/2004)
21 Minute Entry for proceedings held before Judge David R. Homer : Status Conference held on 10/4/2004. (tab) (Entered: 10/07/2004)
22 STIPULATION Protective Order by John S. Bates Jr., County of Schoharie, Jim Hazzard. (Johnson, Gregg) (Entered: 10/15/2004)
23 NOTICE of Appearance by Gregg T. Johnson on behalf of John S. Bates Jr., County of Schoharie, Jim Hazzard (Attachments: # 1 Certificate of Service)(Johnson, Gregg) (Entered: 10/16/2004)
24 Minute Entry for proceedings held before Judge David R. Homer : Status Conference held on 11/10/2004. (tab) (Entered: 11/15/2004)
25 NOTICE of Appearance by Jacinda N. Hall on behalf of all defendants (Attachments: # 1 Certificate of Service)(Hall, Jacinda) (Entered: 11/23/2004)
26 STATUS REPORT LETTER/ORDER Status Report due by 12/20/2004. Signed by Judge David R. Homer on 12/6/04. (tab) (Entered: 12/06/2004)
27 Letter from Plaintiffs for John Kelsey, Timothy Wright requesting 60 day extension of discovery and other deadlines. (Rozger, Jason) (Entered: 02/14/2005)

02/15/2005 02/25/2005 02/28/2005 02/28/2005 03/04/2005 03/04/2005
05/19/2005 05/24/2005 05/24/2005 06/01/2005
07/05/2005 08/03/2005 08/05/2005 08/17/2005
09/01/2005 09/01/2005 09/01/2005

28 REQUEST &ORDER denying request for extension of discovery and other ddls. Signed by Judge David R. Homer on 2/15/05. (wjg, ) (Entered: 02/16/2005)
29 Second Letter from Elmer Keach for John Kelsey, Timothy Wright requesting Sixty Day Enlargement of Discovery Deadline On Consent. (Keach, Elmer) (Entered: 02/25/2005)
30 Letter from Gregg T. Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting Court conference regarding discovery disputes. (Attachments: # 1 Certificate of Service)(Johnson, Gregg) (Entered: 02/28/2005)
31 NOTICE of Hearing: Discovery Conference set for 3/2/2005 03:45 PM in Albany before Magistrate Judge David R. Homer. (tab) (Entered: 02/28/2005)
32 Minute Entry for proceedings held before Judge David R. Homer : Discovery Conference held on 3/2/2005 (tab) (Entered: 03/07/2005)
33 SCHEDULING ORDER: Discovery due by 7/1/2005. Motions to be filed by 9/1/2005. Trial Ready Deadline is 9/1/2005. Jury Trial set for 11/14/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Signed by Judge David R. Homer on 3/4/05. (tab) (Entered: 03/07/2005)
34 Letter from Gregg T. Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting a conference to request leave to amend Defendants' Answer. (Johnson, Gregg) (Entered: 05/19/2005)
35 Minute Entry for proceedings held before Judge David R. Homer : Status Conference held on 5/24/2005 (tab) (Entered: 05/24/2005)
36 ORDER granting leave to file amended answer (to be filed by 6/1/05). Signed by Judge David R. Homer on 5/24/05. (tab) (Entered: 05/24/2005)
37 MOTION for Leave to File Amended Answer Motion Hearing set for 7/21/2005 09:30 AM in Albany before Magistrate Judge David R. Homer. Response to Motion due by 7/5/2005 Reply to Response to Motion due by 7/11/2005. by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Affidavit in Support of Motion for Leave to Amend# 2 Exhibit(s) Exhibit A# 3 Proposed Amended Pleading Exhibit B# 4 Memorandum of Law in Support of Defendants' Motion for Leave to Amend their Answer# 5 Supplement West Law Case − Cox# 6 Supplement West Law Case − Royal Insurance# 7 Supplement Certificate of Service)(Conboy, Jacinda) (Entered: 06/01/2005)
38 RESPONSE in Opposition re 37 MOTION for Leave to File Amended Answer filed by John Kelsey, Timothy Wright. (Attachments: # 1 Memorandum of Law)(Keach, Elmer) (Entered: 07/05/2005)
39 Letter from Gregg T. Johnson, Esq. advising the court of case status. (tab) (Entered: 08/04/2005)
40 MEMORANDUM−DECISION AND ORDER denying 37 Motion for Leave to File . Signed by Judge David R. Homer on 8/5/05. (tab) (Entered: 08/08/2005)
41 First APPEAL OF MAGISTRATE JUDGE DECISION to District Court by County of Schoharie, John S. Bates, Jr, Jim Hazzard re 38 Response in Opposition to Motion, 40 Order on Motion for Leave to File Motion Hearing set for 10/7/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Response to Motion due by 9/20/2005 Reply to Response to Motion due by 9/26/2005. (Attachments: # 1 Memorandum of Law in Support of Notice of Objections# 2 Supplement West Law Case − Cox# 3 Supplement Certificate of Service)(Conboy, Jacinda) (Entered: 08/17/2005)
42 PROTECTIVE STIPULATION/ORDER. Signed by Judge David R. Homer on 9/1/05. (tab) (Entered: 09/01/2005)
43 LETTER REQUEST AND ORDER allowing 30 page Memorandum of Law. Signed by Judge Lawrence E. Kahn on 9/1/05. (tab) (Entered: 09/01/2005)
44 STATUS REPORT re Defendants' Motion for Summary Judgment by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Memorandum of Law

09/01/2005 09/01/2005
09/01/2005 09/01/2005 09/01/2005 09/01/2005 09/02/2005
09/09/2005 09/13/2005 09/13/2005 09/13/2005 09/15/2005 09/15/2005

in Support of Defendants' Motion for Summary Judgment# 2 Supplement West Law Case − Cox# 3 Supplement West Law Case − Royal Ins.# 4 Supplement Letter to USDC Clerk re Motion Submissions# 5 Affidavit Affidavit of Service for SJ Motion)(Johnson, Gregg) (Entered: 09/01/2005)
45 CERTIFICATE OF SERVICE by County of Schoharie, John S. Bates, Jr, Jim Hazzard re 44 Status Report, (Johnson, Gregg) (Entered: 09/01/2005)
46 MOTION to Certify Class Motion Hearing set for 10/7/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Response to Motion due by 9/20/2005 Reply to Response to Motion due by 9/26/2005. by John Kelsey, Timothy Wright. (Attachments: # 1 Memorandum of Law In Support of Motion for Class Certification# 2 Affirmation of Jason J. Rozger# 3 Exhibit(s) A, Kelsey transcript# 4 Exhibit(s) B, Wright transcript# 5 Exhibit(s) C, Wright securing order# 6 Exhibit(s) D, Wright admission report# 7 Exhibit(s) E, Admissions policy# 8 Exhibit(s) F, 30(b)(6) notice# 9 Exhibit(s) G, 30(b)(6) transcript# 10 Exhibit(s) H, Kenyon transcript# 11 Exhibit(s) I, Bynum v. D.C.# 12 Exhibit(s) J, Gary v. Sheahan# 13 Exhibit(s) K, Tyson v. City of New York# 14 Exhibit(s) L, Eddelman v. Jefferson County# 15 Exhibit(s) M, Kahler v. County of Rennselaer)(Rozger, Jason) (Entered: 09/01/2005)
47 SEALED NOTICE OF MOTION for Summary Judgment Motion Hearing set for 10/7/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Response to Motion due by 9/20/2005 Reply to Response to Motion due by 9/26/2005. by County of Schoharie, John S. Bates, Jr, Jim Hazzard.(tab) (Entered: 09/06/2005)
48 SEALED STATEMENT OF MATERIAL FACTS re 47 MOTION for Summary Judgment filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (tab) (Entered: 09/06/2005)
49 SEALED MEMORANDUM OF LAW re 47 Motion for Summary Judgment, filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (tab, ) (Entered: 09/06/2005)
50 SEALED AFFIDAVIT in Support re 47 MOTION for Summary Judgment filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (tab) (Entered: 09/06/2005)
51 SEALING ORDER re 50 Affidavit in Support of Motion filed by County of Schoharie,, John S. Bates, Jr., Jim Hazzard, 47 MOTION for Summary Judgment filed by County of Schoharie, John S. Bates, Jr., Jim Hazzard, 48 Statement of Material Facts filed by County of Schoharie, John S. Bates, Jr., Jim Hazzard, 49 Memorandum of Law filed by County of Schoharie, John S. Bates, Jr., Jim Hazzard . Signed by Judge Lawrence E. Kahn on 9/2/05. (tab) (Entered: 09/06/2005)
52 Letter from Elmer R. Keach, III for John Kelsey, Timothy Wright requesting Discovery Conference submitted to Judge David R. Homer. (Keach, Elmer) (Entered: 09/09/2005)
53 RESPONSE TO LETTER BRIEF filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard as to 52 Letter Request filed by John Kelsey,, Timothy Wright,. (Conboy, Jacinda) (Entered: 09/13/2005)
54 CERTIFICATE OF SERVICE by County of Schoharie, John S. Bates, Jr, Jim Hazzard re 53 RESPONSE TO LETTER BRIEF (Conboy, Jacinda) (Entered: 09/13/2005)
55 NOTICE of Hearing: Discovery Hearing set for 9/15/2005 10:00 AM in Albany before Magistrate Judge David R. Homer. (tab) (Entered: 09/13/2005)
56 ORDER on 9/15/05 telephone conference re: deposition issue. (wjg, ) (Entered: 09/15/2005)
57 Letter from Elmer Keach for John Kelsey, Timothy Wright requesting Adjournment of Return Date on Pending Motions until November 18, 2005 submitted to Judge Lawrence E. Kahn Filed on Consent. (Keach, Elmer) (Entered: 09/15/2005)

09/16/2005 09/20/2005
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58 LETTER REQUEST AND ORDER Setting Hearing on Motion 46 MOTION to Certify Class: Response to Motion due by 11/1/2005 Reply to Response to Motion due by 11/8/2005. Motion Hearing set for 11/18/2005 09:30 AM in Albany before Judge Lawrence E. Kahn. Signed by Judge Lawrence E. Kahn on 9/16/05. (tab) (Entered: 09/20/2005)
59 MEMORANDUM OF LAW re 41 Appeal of Magistrate Judge Decision to District Court,, In Opposition to Defendants' Objections, filed by John Kelsey. (Attachments: # 1 Exhibit(s) A, J.G. Peta v. Club Protection# 2 Exhibit(s) B, Gibson v. Kendrick# 3 Exhibit(s) C, Gary v. Sheahan# 4 Exhibit(s) D, Thomas v. Baca# 5 Exhibit(s) E, Rivera v. Periera# 6 Exhibit(s) F, Canady v. Werholtz)(Rozger, Jason) (Entered: 09/20/2005)
This is a reminder to the attorneys of record that Judge Kahn considers motions on the submission of the motion papers, only. No oral arguments will be entertained. (sas) (Entered: 10/05/2005)
60 Letter Motion from Elmer Keach for John Kelsey, Timothy Wright requesting Discovery Conference submitted to Judge David R. Homer Regarding Conference on October 25, 2005 at 2:30 PM. (Attachments: # 1 Exhibit(s) Defendants' Initial Disclosures)(Keach, Elmer) (Entered: 10/24/2005)
61 Letter Motion from Jason Rozger, Esq. for John Kelsey, Timothy Wright requesting On consent, extension of time to file responses to pending motions submitted to Judge Lawrence E. Kahn. (Rozger, Jason) (Entered: 10/26/2005)
62 Minute Entry for a Discovery Conference held before Judge David R. Homer on 10/27/2005. (see) (Entered: 10/28/2005)
63 ORDER, that pltfs are granted leave to depose Glenn Packard at a date &time to be arranged among the parties; that pltfs are granted leave to take the depositions of any other individuals included in defts' disclosure of witnesses following the district court's decision on defts' pending motion for summary judgment; that pltfs shall notify the chambers of the undersigned when a decision is received on defts' pending motion for summary judgment &a conference will be scheduled to establish ddls for completion of remaining discovery. Signed by Judge David R. Homer on 10/27/2005. (see) (Entered: 10/28/2005)
64 REQUEST &ORDER resetting Hearing on Motions re: 46 MOTION to Certify Class, 47 MOTION for Summary Judgment: Motion Hearings reset to 1/20/2006 09:30 AM in Albany before Judge Lawrence E. Kahn (on submit). Signed by Judge Lawrence E. Kahn on 10/27/05. (wjg, ) (Entered: 10/31/2005)
65 MEMORANDUM−DECISION AND ORDER affirming 41 Magistrate Judge Decision appealed to District Court, and denying permission to amend answer. Signed by Judge Lawrence E. Kahn on 11/16/05. (tab) Modified on 1/10/2006 (tab). (Entered: 11/16/2005)
66 REQUEST &ORDER granting leave for defts to file 15 page brief in opposition to pltfs' motion. Signed by Judge Lawrence E. Kahn on 12/6/05. (wjg, ) (Entered: 12/07/2005)
67 Letter Motion from Elmer Keach for John Kelsey, Timothy Wright requesting Enlargement of Time to File Responding Motion Papers submitted to Judge Lawrence E. Kahn On Consent. (Keach, Elmer) (Entered: 12/07/2005)
68 ORDER granting 67 Letter Request, 46 MOTION to Certify Class, 47 MOTION for Summary Judgment: Motion Hearing set for 1/20/2006 09:30 AM in Albany before Judge Lawrence E. Kahn. Response to Motion due by 1/6/2006 Reply to Response to Motion due by 1/13/2006. Signed by Judge Lawrence E. Kahn on 12/8/05. (tab) (Entered: 12/08/2005)
69 LETTER REQUEST AND ORDER granting defendants permission to file a 30 page brief. Signed by Judge Lawrence E. Kahn on 12/8/05. (tab) (Entered: 12/08/2005)
70 AFFIDAVIT in Opposition re 46 MOTION to Certify Class filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Exhibit(s) A# 2

01/06/2006
01/06/2006
01/10/2006 01/13/2006 01/13/2006
01/20/2006 01/25/2006 01/27/2006 04/13/2006 04/17/2006 09/25/2006 02/21/2007 03/05/2007 03/05/2007

Exhibit(s) B# 3 Exhibit(s) C)(Johnson, Gregg) (Entered: 01/06/2006)
71 RESPONSE in Opposition re 46 MOTION to Certify Class filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Affidavit of Gregg T. Johnson# 2 Exhibit(s) A# 3 Exhibit(s) B# 4 Exhibit(s) C# 5 Affidavit of James Hazzard# 6 Memorandum of Law # 7 Supplement Augustin v. Jablonsky# 8 Supplement Kelsey v. Schoharie# 9 Supplement LeGrand v. NYC Transit# 10 Supplement Spinner v. City of NY# 11 Supplement Correspondence to Court# 12 Supplement Certificate of Service)(Johnson, Gregg) (Entered: 01/06/2006)
72 AFFIDAVIT in Opposition re 47 MOTION for Summary Judgment filed by John Kelsey, Timothy Wright. (Attachments: # 1 Exhibit(s) A, Kelsey transcript# 2 Exhibit(s) B, Wright transcript# 3 Exhibit(s) C, Inmate Processing Policy# 4 Exhibit(s) D, 30(b)(6) deposition# 5 Exhibit(s) E, Kenyon Deposition# 6 Exhibit(s) F, Packard transcript# 7 Exhibit(s) G, Schaffer deposition# 8 Exhibit(s) Huber transcript# 9 Exhibit(s) I, Hatala transcript# 10 Exhibit(s) K, Van Wormer Affidaivt# 11 Exhibit(s) L, Marsh deposition# 12 Memorandum of Law # 13 Statement of Material Facts)(Rozger, Jason) (Entered: 01/06/2006)
73 SEALED EXHIBIT J to Rozger Affirmation − maintained in Clerk's Office and not available for electronic viewing (ban) (Entered: 01/10/2006)
74 REPLY to Response to Motion re 47 MOTION for Summary Judgment Filed under seal filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Conboy, Jacinda) (Entered: 01/13/2006)
75 REPLY to Response to Motion re 46 MOTION to Certify Class filed by John Kelsey, Timothy Wright. (Attachments: # 1 Exhibit(s) Exhibit M to Keach Affirmation −− Deposition transcript, Donald Mace# 2 Exhibit(s) Exhibit N −− Discovery Responses of John Kelsey# 3 Exhibit(s) Exhibit o −− Discovery Response of Timothy Wright# 4 Exhibit(s) Exhibit Q to Keach Affirmation −− Letter from Johnson to Keach, 10.13.04# 5 Memorandum of Law)(Keach, Elmer) (Entered: 01/13/2006)
76 SEALED DOCUMENT (Attachments to Document #74)− maintained in Clerk's Office and not available for electronic viewing. (ban) (Entered: 01/25/2006)
77 RESPONSE to Motion re 46 MOTION to Certify Class, 47 MOTION for Summary Judgment filed by John Kelsey, Timothy Wright. (Rozger, Jason) (Entered: 01/25/2006)
78 LETTER BRIEF by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Conboy, Jacinda) (Entered: 01/27/2006)
79 LETTER BRIEF Providing Supplemental Authority to the Court by John Kelsey, Timothy Wright. (Attachments: # 1 Exhibit(s) Marriott Summary Judgment Decision)(Keach, Elmer) (Entered: 04/13/2006)
80 RESPONSE TO LETTER BRIEF filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard as to 79 LETTER BRIEF filed by John Kelsey,, Timothy Wright,. (Johnson, Gregg) (Entered: 04/17/2006)
81 LETTER BRIEF Providing the Court with Supplemental Case Authority by John Kelsey, Timothy Wright. (Attachments: # 1 Exhibit(s) In Re Nassau County Strip Search Cases Decision)(Keach, Elmer) (Entered: 09/25/2006)
82 MEMORANDUM−DECISION AND ORDER granting 46 Motion to Certify Class; denying 47 Motion for Summary Judgment. Signed by Judge Lawrence E. Kahn on 2/21/07. (tab) (Entered: 02/22/2007)
83 NOTICE OF APPEAL as to 82 Order on Motion to Certify Class, Order on Motion for Summary Judgment by County of Schoharie, John S. Bates, Jr, Jim Hazzard. No fee paid. (Attachments: # 1 Appendix Certificate of Service)(Johnson, Gregg) (Entered: 03/05/2007)
84 MOTION for Certificate of Appealability Motion Hearing set for 4/6/2007 09:30 AM in Albany before Judge Lawrence E. Kahn. by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Affidavit supporting Affidavit of Gregg

03/06/2007 03/07/2007 03/07/2007 03/20/2007 03/26/2007 04/24/2007 04/24/2007 04/24/2007 05/24/2007 05/25/2007 05/25/2007 06/29/2007 08/16/2007 11/13/2007
11/26/2007

T. Johnson# 2 Exhibit(s) A − Steinberg v. Rockland County transcript# 3 Memorandum of Law supporting Memorandum of Law# 4 Appendix Certificate of Service) (Johnson, Gregg) (Entered: 03/05/2007)
USCA Appeal Fees received $ 455 receipt number ALB003329 re 83 Notice of Appeal filed by Jim Hazzard, John S. Bates, Jr., County of Schoharie (Appeals packet sent to Attorney).(ban) (Entered: 03/06/2007)
Set Deadlines as to 84 MOTION for Certificate of Appealability. Response to Motion due by 3/20/2007. Reply to Response to Motion due by 3/26/2007. (sas) (Entered: 03/07/2007)
85 ELECTRONIC NOTICE sent to US Court of Appeals re 83 Notice of Appeal (Appeals packet sent to Attorney).(ban) (Entered: 03/07/2007)
86 RESPONSE to Motion re 84 MOTION for Certificate of Appealability filed by John Kelsey, Timothy Wright. (Attachments: # 1 Exhibit(s) A, Moll v. U.S. Life# 2 Exhibit(s) B, Ralph v. GMC# 3 Memorandum of Law)(Rozger, Jason) (Entered: 03/20/2007)
87 REPLY to Response to Motion re 84 MOTION for Certificate of Appealability filed by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Supplement Certificate of Service)(Johnson, Gregg) (Entered: 03/26/2007)
88 USCA Scheduling Order #1 as to 83 Notice of Appeal filed by Jim Hazzard, John S. Bates, Jr., County of Schoharie. USCA Case No. 07−0893−cv. Appealed to: Second Circuit USCA.Appeal Record due by 4/25/2007. (ban) (Entered: 04/24/2007)
89 USCA Scheduling Order #2 as to 83 Notice of Appeal filed by Jim Hazzard, John S. Bates, Jr., County of Schoharie. USCA Case No. 07−0893−cv. Appealed to: Second Circuit USCA. (ban) (Entered: 04/24/2007)
90 ELECTRONIC CERTIFICATION to US Court of Appeals of Record on Appeal re 83 Notice of Appeal (ban) (Entered: 04/24/2007)
91 MEMORANDUM DECISION AND ORDER denying 84 Motion for Certificate of Appealability. Signed by Judge Lawrence E. Kahn on 5/24/07. (ban) (Entered: 05/24/2007)
92 AMENDED ELECTRONIC NOTICE sent to US Court of Appeals re 83 Notice of Appeal. Certificate of Appealability DENIED (pursuant to Dkt #91). (ban) (Entered: 05/25/2007)
93 AMENDED ELECTRONIC CERTIFICATION to US Court of Appeals of Record on Appeal re 83 Notice of Appeal. (ban) (Entered: 05/25/2007)
94 MANDATE of USCA as to 83 Notice of Appeal filed by Jim Hazzard, John S. Bates, Jr., County of Schoharie: DENYING Rule 23(f) petition as to class certification because an immediate appeal is not warranted. Appeal #07−0826−mv, issued as mandate 6/25/07. (lmp) (Entered: 06/29/2007)
Appeal Record Returned: Sealed Documents 47 − 50. (lmp) (Entered: 08/16/2007)
Set Deadlines/Hearings: Pretrial Conference is set for 11/28/2007 at 10:30 AM in Albany before Senior Judge Lawrence E. Kahn. At the time of the conference, counsel will report on the status of the above−entitled action. Parties with full settlement authority are to be readily available during the conference. If settlement cannot be reached, counsel are to be prepared to discuss issues which may be raised at the time of trial. The attorneys of record are directed to discuss trial deadlines with each other (preconference) &will be prepared to stipulate to a trial date at the time of the conference. Several agreed upon proposed trial deadlines shall be made available to the Court for Judge Kahns consideration. (sas) (Entered: 11/13/2007)
95 Letter Motion from Elmer Robert Keach III for John Kelsey, Timothy Wright requesting adjournment of pretrial conference submitted to Judge Lawrence E. Kahn. (Keach, Elmer) (Entered: 11/26/2007)

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03/27/2008 04/02/2008 04/03/2008 04/07/2008 04/10/2008 04/14/2008
07/18/2008 07/22/2008 07/25/2008 07/25/2008 07/28/2008

Set/Reset Hearings: Pretrial Conference reset for 12/13/2007 10:30 AM in Albany before Senior Judge Lawrence E. Kahn. (ban) (Entered: 11/27/2007)
96 ORDER granting 95 Letter Request. It is hereby Ordered that the Pre−trial Conference scheduled for 11/30/07 is adjourned until 12/13/07 at 10:30AM. The conditions relative to the conduct of this conference, as detailed in the Courts' prior order, remain in effect. Signed by Judge Lawrence E. Kahn on 11/26/07. (ban) (Entered: 11/27/2007)
Reset Deadlines/Hearings: Final Pretrial Conference is reset for 12/19/2007 at 01:30 PM in Albany before Senior Judge Lawrence E. Kahn. Proceeding is adjourned at the request of the Court. (sas) (Entered: 11/29/2007)
97 Minute Entry for proceedings held before Judge Lawrence E. Kahn: Settlement is discussed. The matter does not settle. Jury Trial set for 6/16/2008 09:30 AM in Albany before Senior Judge Lawrence E. Kahn. Pretrial submission (Stipulation of facts, Witness list, Exhibit list, Proposed voir dir, jury charge &verdict sheet) are due by 6/2/2008. Decision on whether this will be a bench trial due by 4/1/08. (Court Reporter None. CRD S. Snyder) (sas) Additional attachment(s) added on 12/19/2007 (sas, ). (Entered: 12/19/2007)
98 Letter Motion from Bruce Menken, Esq. for John Kelsey, Timothy Wright requesting waiver of jury trial submitted to Judge Khan. (Rozger, Jason) (Entered: 03/27/2008)
99 ORDER granting 98 Letter Request by attorneys for Plaintiffs, that plaintiffs waive their previously−demanded trial by jury. Signed by Senior Judge Lawrence E. Kahn on 3/31/08. (sg) (Entered: 04/02/2008)
100 Letter Motion from Gregg Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting trial by Jury submitted to Judge Kahn. (Johnson, Gregg) (Entered: 04/03/2008)
101 LETTER BRIEF responding to Defendants' letter regarding bench trial by John Kelsey, Timothy Wright. (Rozger, Jason) (Entered: 04/07/2008)
102 LETTER BRIEF regarding the issue of a jury trial by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Attachments: # 1 Affirmation Affirmation of Gregg Johnson)(Johnson, Gregg) (Entered: 04/10/2008)
103 ORDER re: 100 Letter Motion from Gregg Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting trial by Jury. IT IS ORDERED that this case will go forward as a jury trial; that the letter request and Order filed on 4/2/08 (Dkt. 99) are hereby SUPERSEDED; and the June 16, 2008 trial date is ADJOURNED until September 16, 2008, and pretrial submissions will be due September 8, 2008. Signed by Senior Judge Lawrence E. Kahn on 4/14/08. (sg) (Entered: 04/14/2008)
104 Letter Motion from Plaintiffs for John Kelsey, Timothy Wright requesting authorization to send class notice submitted to Judge Lawrence E. Khan. (Attachments: # 1 Proposed class notice)(Rozger, Jason) (Entered: 07/18/2008)
105 ORDER granting 104 Letter Request/Motion permitting plaintiffs' attorneys/class counsel to disseminate a class notice. Signed by Senior Judge Lawrence E. Kahn on 7/22/08. (sg) (Entered: 07/22/2008)
106 Letter Motion from Gregg T. Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting postponement of commencement of trial submitted to Judge Kahn. (Johnson, Gregg) (Entered: 07/25/2008)
107 Letter Motion from class counsel for John Kelsey, Timothy Wright requesting November 2008 trial date submitted to Judge Lawrence E. Kahn. (Rozger, Jason) (Entered: 07/25/2008)
108 ORDER granting 107 Letter Request/Motion: IT IS SO ORDERED, that the new jury trial deadline is 11/12/08 at 10:00 a.m. in Albany; Pretrial submissions shall be due on 11/3/08; A final Pretrial Settlement Conference shall be held on 10/29/08 at 10:00 a.m. before Senior Judge Lawrence E. Kahn. Signed by Senior Judge Lawrence E. Kahn on 7/28/08. (sg) (Entered: 07/28/2008)

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10/16/2009
11/05/2009 01/05/2010

109 Letter Motion from Gregg T. Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting Postponement of trial until after qualified immunity appeal has been decided submitted to Judge Kahn. (Johnson, Gregg) (Entered: 10/06/2008)
110 ORDER on 109 Letter Motion : Trial reset for 2/3/2009 at 10:00 AM in Albany. Pretrial submissions will be due on 1/26/09. Signed by Senior Judge Lawrence E. Kahn on 10/7/08. (sg) (Entered: 10/07/2008)
111 NOTICE of Appearance by Bethany Schumann−McGhee on behalf of all plaintiffs (Schumann−McGhee, Bethany) (Entered: 10/15/2008)
112 Letter Motion from Gregg T. Johnson, Esq. for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting adjournment of the trial date submitted to Judge Kahn. (Johnson, Gregg) (Entered: 12/31/2008)
113 ORDER granting 112 Letter Request: Jury Trial adjourned to 6/9/2009 at 9:30 AM in Albany before Senior Judge Lawrence E. Kahn. Pretrial submissions will be due 6/2/09. Signed by Senior Judge Lawrence E. Kahn on 1/5/09. (sg) (Entered: 01/05/2009)
114 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)
115 CERTIFICATE OF SERVICE by County of Schoharie, John S. Bates, Jr, Jim Hazzard re 114 Notice of Change of Address (Johnson, Gregg) (Entered: 01/12/2009)
116 Letter Motion from Gregg T. Johnson for County of Schoharie, John S. Bates, Jr, Jim Hazzard requesting Adjournment of trial until a decision is received from the Court of Appeals submitted to Judge Kahn. (Johnson, Gregg) (Entered: 04/10/2009)
117 ORDER granting 116 Letter Request. IT IS SO ORDERED, that the Jury Trial has been adjourned until 10/20/2009 at 9:30 AM in Albany before Senior Judge Lawrence E. Kahn. Signed by Senior Judge Lawrence E. Kahn on 4/13/09. (sg ) (Entered: 04/13/2009)
118 MANDATE of USCA, issued 10/14/09, as to defts' 83 Appeal : reversing and remanding w/instructions to dismiss the action in accordance w/the attached slip opinion; w/attached order awarding costs to deft−appellants in amt of $1662.60. (Attachments: # 1 slip opinion, # 2 USCA Order awarding costs)(cbm ) (Entered: 10/15/2009)
119 ORDERED, that Defendants Motion for summary judgment (Dkt. No. 47 ) is GRANTED; and it is further ORDERED, that the above−captioned case is DISMISSED in its entirety; and it is further ORDERED, that Defendants Application for attorneys fees is GRANTED, and Defendants are awarded $1,662.60. Signed by Senior Judge Lawrence E. Kahn on October 16, 2009. (sas) (Entered: 10/16/2009)
120 JUDGMENT IN A CIVIL CASE: IT IS ORDERED AND ADJUDGED that the case is dismissed and judgment is entered in favor of the defendants and against the plaintiffs; and it is further ORDERED, that the plaintiffs shall pay defendants' attorneys fees in the amount of $1,662.60 in accordance with the Order of the Honorable Lawrence E. Kahn, U.S. District Judge, dated 10/16/09. (sg ) (Entered: 10/16/2009)
121 BILL OF COSTS by County of Schoharie, John S. Bates, Jr, Jim Hazzard. (Johnson, Gregg) (Entered: 11/05/2009)
122 BILL OF COSTS. Costs are taxed in the amount of $3,487.20 and included in the judgment. Signed by Scott A. Snyder, CRD to the Honorable Lawrence E. Kahn. (sg ) (Entered: 01/06/2010)

02/23/2010

123 JUDGMENT: IT IS ORDERED AND ADJUDGED that the costs in the amount of Three Thousand, Four Hundred and Eighty Seven US Dollars and 20 cents ($3,487.20) be entered against the above listed plaintiffs, in accordance with the Bill of Cost Order, dated January 05, 2010. (mgh) (Entered: 02/26/2010)

 
 United States Court of Appeals
FOR THE
SECOND CIRCUIT

AT

Q'CLOCK,;.,-'_ _

Law~Baerman, Clerk - Syracuse

At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Daniel Patrick Moynihan United States Courthouse,,'500 rearl Street, in the City of New York, on the ~ fr- day of J.bo1 , two thousand sev¢n,

Present:

Hon. Dennis Jacobs, ChiefJudge,
Hon. Amalya L. Kearse, Hon. Rosemary S. Pooler,
Circuit Judges.

John Kelsey and Timothy Wright, both individually and on behalf of a class of others similarly situated,

Plaintiffs-Respondents,

v.

07-0826-mv

The County of Schoharie, Jo1m S. Bates, Jr., both individually and in his official capacity as Sheriff of the County of Schoharie, and Jim Hazzard, both individually and in his official capacity as Administrator of the Schoharie County Jail,

Defendants-Petitioners.

~. 23(~, Defendants-Petitioners seek petmission to appeal,pursuant to Fed. R. Civ.

the

district court's order granting the Plaintiffs' motion for class certification. Upon due consideration,

it is ORDERED that the Rule 23(f) petition is DENIED because an immediate appeal is not

warranted. See Sumitomo Copper Litigation v. Credit LyonnaisRouse, Ltd., 262 F.3d 134, 139-40

(2d Cir. 2001).

.

.FOR THEcoifRT: .,.-.-"'-'-"'''.--.--''''----,.,-'-".

Thomas W. Asreen, Acting Clerk
By: ~add!c~ Richard Alcantara, Deputy Clerk

D1 ISSUED AS A MANDATE:~. 26"'