U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:14-cv-00820-YY

Dillon et al v. Clackamas County et al Assigned to: Magistrate Judge Youlee Yim You Case in other court: 9th Circuit Court of Appeals, 19-
36084
9th Circuit Court of Appeals, 2035544 Cause: 42:1983 Civil Rights Act

Date Filed: 05/18/2014 Date Terminated: 05/19/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
William Dillon Individually, on behalf of a class of others similarly situated

represented by Leonard Randolph Berman Law Office of Leonard R. Berman 9220 SW Barbur Blvd. Suite 119, Box 180 Portland, OR 97219 503-516-3715 Fax: 815-642-9117 Email: easyrabbi@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Meiselas Geragos & Geragos 644 South Figueroa Street Los Angeles, CA 90017 213-625-3900 Fax: 213-232-3255 Email: geragos@geragos.com TERMINATED: 12/05/2017 PRO HAC VICE

Mark J. Geragos Geragos & Geragos 644 South Figueroa Street Los Angeles, CA 90017 213-625-3900 Fax: 213-232-3255 Email: geragos@geragos.com TERMINATED: 12/05/2017 PRO HAC VICE

Plaintiff Scott Vincent Graue Individually, on behalf of a class of others similarly situated
Plaintiff David Michael Hodges Individually, on behalf of a class of others similarly situated

Tonna K. Farrar Bonnett Fairbourn Friedman & Balint, P.C. 2325 E. Camelback Suite 300 Phoenix, AZ 85016 503-487-6352 Fax: 602-274-1199 Email: tfarrar@bffb.com TERMINATED: 10/12/2016
represented by Leonard Randolph Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Meiselas (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Mark J. Geragos (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Tonna K. Farrar (See above for address) TERMINATED: 10/12/2016
represented by Leonard Randolph Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Meiselas (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Mark J. Geragos (See above for address) TERMINATED: 12/05/2017

Plaintiff Jayson Saylor
Plaintiff Albert Love

PRO HAC VICE
Tonna K. Farrar (See above for address) TERMINATED: 10/12/2016
represented by Benjamin J. Meiselas (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Leonard Randolph Berman (See above for address) ATTORNEY TO BE NOTICED
Mark J. Geragos (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Tonna K. Farrar (See above for address) TERMINATED: 10/12/2016
represented by Benjamin J. Meiselas (See above for address) TERMINATED: 12/05/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leonard Randolph Berman (See above for address) ATTORNEY TO BE NOTICED
Mark J. Geragos (See above for address) TERMINATED: 12/05/2017 PRO HAC VICE
Tonna K. Farrar (See above for address) TERMINATED: 10/12/2016

V. Defendant Clackamas County
Defendant Craig Roberts both individually and in his official capacity as Sheriff

represented by Stephen Lewis Madkour Clackamas County Counsel 2051 Kaen Road Oregon City, OR 97045 503-655-8362 Fax: 503-742-5397 Email: smadkour@co.clackamas.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Gordon Clackamas County Counsel 2051 Kaen Road 4th Floor Oregon City, OR 97045 503-742-5392 Fax: 503-742-5397 TERMINATED: 10/03/2018 ATTORNEY TO BE NOTICED
Shawn A. Lillegren Offices of Clackamas County Counsel 2051 Kaen Rd Oregon City, OR 97045 503-655-8362 Fax: 503-742-5397 Email: slillegren@clackamas.us ATTORNEY TO BE NOTICED
represented by Stephen Lewis Madkour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Gordon (See above for address) TERMINATED: 10/03/2018 ATTORNEY TO BE NOTICED

Shawn A. Lillegren (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/18/2014 05/18/2014 05/19/2014 05/19/2014 05/20/2014
05/27/2014
06/23/2014 06/24/2014 07/07/2014

# Docket Text

Complaint. (In forma pauperis status selected) Jury Trial

1

Requested: Yes. Filed by William Dillon against All Plaintiffs

(Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons).

(Berman, Leonard) (Entered: 05/18/2014)

2 Application for Leave to Proceed IFP . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/18/2014)

3 Notice of Case Assignment: This case is assigned to Magistrate Judge Janice M. Stewart. (ecp) (Entered: 05/19/2014)

4 ORDER: Granting Application for Leave to Proceed in Forma Pauperis 2 . Signed on 5/19/14 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 05/19/2014)

5 Summons Issued Electronically as to Clackamas County. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (ecp) (Entered: 05/20/2014)

6 Notice of Case Assignment to Magistrate Judge Janice M. Stewart and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 9/24/2014. Joint Alternate Dispute Resolution Report is due by 10/24/2014. Pretrial Order is due by 10/24/2014. Ordered by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 05/27/2014)

7 Amended Complaint . Filed by William Dillon, David Michael Hodges, Scott Vincent Graue against All Defendants. (Berman, Leonard) (Entered: 06/23/2014)

8 Waiver of Service of Summons Returned Executed by Clackamas County waiver sent on 6/9/2014. Filed by Clackamas County; Craig Roberts. (Gordon, Alexander) (Entered: 06/24/2014)

9 Motion to Dismiss Pursuant to FRCP 8 and 12(b)(6) and Memorandum in Support, Motion to Dismiss for Failure to State a

07/15/2014
07/15/2014
07/17/2014 07/23/2014 07/23/2014 07/23/2014 07/29/2014

Claim . Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Gordon, Alexander) (Entered: 07/07/2014)
10 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Rule 16 Conference for Monday, 8/25/2014 at 09:30AM before Magistrate Judge Janice M. Stewart. Court staff will initiate the call to counsel. Local Rules 16-2 and 26-1 require that counsel confer prior to the conference. At the conference, counsel should be prepared to discuss the status of the case, relevant dates and deadlines, and any other significant issues. Plaintiff shall advise the court at the conference whether or not there will be full consent from all parties to proceed before the magistrate judge in the case. Until full consents are filed, no trial date will be set. (jlr) (Entered: 07/15/2014)
11 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Dismiss Pursuant to FRCP 8 and 12(b)(6) and Memorandum in Support Motion to Dismiss for Failure to State a Claim 9 for Oral Argument on Monday, 9/22/2014 at 09:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. See attached Notice Regarding Civil Case Procedures in cases assigned to Judge Stewart. (jlr) (Entered: 07/15/2014)
12 Scheduling Order by Magistrate Judge Janice M. Stewart: RESETTING the TELEPHONE Rule 16 Conference from 8/25/14 to Thursday, 8/21/2014 at 4:00PM before Magistrate Judge Janice M. Stewart. Court staff will initiate the call to counsel. (jlr) (Entered: 07/17/2014)
13 Notice of Appearance of Tonna K. Farrar appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs (Farrar, Tonna) (Entered: 07/23/2014)
14 Motion for Extension of Time to File a Response/Reply to Motion to Dismiss Pursuant to FRCP 8 and 12(b)(6) and Memorandum in Support Motion to Dismiss for Failure to State a Claim 9 . Filed by All Plaintiffs. (Farrar, Tonna) (Entered: 07/23/2014)
15 Declaration of TONNA K. FARRAR . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion, 14 .) (Attachments: # 1 Exhibit A-C) (Farrar, Tonna) (Entered: 07/23/2014)
16 ORDER: Granting Plaintiffs' Motion for Extension of Time to File Response/Reply to Motion to Dismiss 9 . Oral argument

08/21/2014
08/29/2014 09/18/2014 09/19/2014 09/21/2014 09/22/2014
09/23/2014

remains as set on Monday, 9/22/2014 at 09:30AM. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 07/29/2014)
17 MINUTES of Proceedings: Telephone Rule 16 Conference held before Magistrate Judge Janice M. Stewart. Order SETTING a further TELEPHONE Rule 16 Conference for Wednesday, 11/5/14 at 9:30 AM before Magistrate Judge Janice M. Stewart. Court staff will initiate the call to counsel. Order STRIKING the current schedule, to be reset at the next Rule 16 conference. Tonna Farrar present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: none. Tape No: none. (jlr) (Entered: 08/21/2014)
18 Response in Opposition to Motion to Dismiss Pursuant to FRCP 8 and 12(b)(6) and Memorandum in Support Motion to Dismiss for Failure to State a Claim 9 . Filed by All Plaintiffs. (Farrar, Tonna) (Entered: 08/29/2014)
19 Motion for Leave to File Amended Complaint/Petition . Filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Farrar, Tonna) (Entered: 09/18/2014)
20 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion for Leave to File Amended Complaint/Petition 19 . Motion will be discussed at Oral Argument currently set on Motion To Dismiss 9/22/2014 at 09:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. (jlr) (Entered: 09/19/2014)
21 Response in Opposition to Motion for Leave to File Amended Complaint/Petition 19 . Filed by All Defendants. (Gordon, Alexander) (Entered: 09/21/2014)
22 MINUTES of Proceedings: before Magistrate Judge Janice M. Stewart. Motion Hearing Held regarding Motion for Leave to File Amended Complaint/Petition 19 , and Motion to Dismiss, Motion to Dismiss for Failure to State a Claim, 9 . Order motions 9 and 19 are taken under advisement as of 9/22/2014. Tonna Farrar, Leonard Berman present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant. Court Reporter: Jill Erwin. (jlr) (Entered: 09/22/2014)
23 Declaration of Lt Eby in Support of Response in Opposition to Motion for Leave to File Amended Complaint. Filed by Clackamas County, Craig Roberts. (Related document(s): Response in Opposition to Motion 21 .) (Gordon, Alexander) (Entered: 09/23/2014)

10/23/2014 10/23/2014 11/05/2014
12/02/2014

Findings & Recommendations: Defendants' Motion to

24

Dismiss Pursuant to FRCP 8 and 12(b)(6) 9 ) should be

GRANTED in part and DENIED in part, with leave granted to

plaintiffs to file an amended complaint. In addition, Plaintiffs'

Motion for Leave to File Amended Complaint/Petition 19 should

be GRANTED, but plaintiffs should be ordered to file an amended

complaint which complies with the courts rulings on defendants

Motion to Dismiss. Objections to the Findings and

Recommendations are due by 11/10/2014. Signed on 10/23/14 by

Magistrate Judge Janice M. Stewart. (ST) (Entered: 10/23/2014)

25 Order by Magistrate Judge Janice M. Stewart referring Defendants' Motion to Dismiss 9 , Plaintiffs' Motion for Leave to File Amended Complaint/Petition 19 , and Findings &

Recommendation 24 to Judge Michael H. Simon for his consideration. (jlr) (Entered: 10/23/2014)

26 MINUTES of Proceedings: Telephone Rule 16 Conference held. ORDER: Setting another TELEPHONE Rule 16 Conference for Tuesday, 12/2/2014 at 09:30AM. The court will initiate the call to counsel. Counsel shall confirm the telephone number(s) where they may be reached with Judge Stewart's courtroom deputy, Jenny Raun, and shall confer regarding the case schedule and deadlines prior to the next scheduled telephone conference. No appearance by counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) Modified on 11/6/2014 to reflect this was a telephone conference(jlr). (Entered: 11/05/2014)

27 MINUTES of Proceedings: TELEPHONE Rule 16 Conference and Notice Regarding Civil Case Procedures. Order: setting the following new case schedule and deadlines: The Joint ADR Report is WAIVED. Discovery is to be completed by 5/15/2015. Dispositive Motions are due by 6/1/2015. Exchange of Expert Witness Statements must be completed and the Pretrial Order is due by 6/30/2015, unless dispositive motions are filed, in which case the due date for both is extended to 30 days after a final ruling on dispositive motions. Please see the attached Notice regarding additional procedures applicable in cases assigned to Judge Stewart. TonnaFarrar and Leonard Berman present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) Modified on 12/3/2014 to reflect this was a TELEPHONE hearing (jlr). (Entered: 12/02/2014)

12/02/2014
04/20/2015 04/20/2015 05/04/2015 05/11/2015 05/18/2015

ORDER - As no party has made objections, this Court follows the

28

recommendation of the Advisory Committee and reviews Judge

Stewart's Findings and Recommendation for clear error on the face

of the record. No such error is apparent. Accordingly, the Court

ADOPTS Judge Stewart's Findings and Recommendation, Dkt. 24

. Defendants' motion to dismiss (Dkt. 9 ) is GRANTED in part and DENIED in part. Plaintiffs' motion for leave to file a second amended complaint (Dkt. 19 ) is GRANTED, but Plaintiffs are ordered to file an amended complaint which complies with Judge Stewart's rulings on Defendants' motion to dismiss. Signed on 12/2/2014 by Judge Michael H. Simon. (mja) (Entered: 12/02/2014)

29 Scheduling Order: Plaintiff's Second Amended Complaint shall be filed on or before May 4, 2015. Related document: Order on

Findings & Recommendation 28 .Ordered by Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 04/20/2015)

30 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Status Conference for Monday, 5/11/2015 at 01:30PM before Magistrate Judge Janice M. Stewart. Court staff will initiate the call to counsel. (jlr) (Entered: 04/20/2015)

31 Second Amended Complaint . Filed by William Dillon, David Michael Hodges, Scott Vincent Graue, Jayson Saylor, Albert Love against All Defendants. (Farrar, Tonna) Modified on 5/5/2015 to remove duplicate plaintiff David Hodges(ecp). (Entered: 05/04/2015)

32 MINUTES of Proceedings: Telephone Scheduling Conference held. ORDER: Striking the case schedule and deadlines, to be reset. ORDER: Setting another telephone Status and Scheduling Conference for Thursday, 5/21/2015, at 03:00PM before Magistrate Judge Janice M. Stewart. The court will initiate the call to counsel. Tonna Farrar and Leonard Berman present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (st1) (Entered: 05/11/2015)

33 Answer to 31 Amended Complaint with Jury Demand and Affirmative Defenses. Filed by Clackamas County, Craig Roberts. (Attachments: # 1 Exhibit 1) (Gordon, Alexander) (Entered: 05/18/2015)

05/21/2015
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12/08/2015 12/08/2015 12/09/2015

34 MINUTES of Proceedings: Telephone Scheduling Conference held. ORDER: Setting the following case schedule. Discovery is to be completed by 9/30/2015. Motion for Class Certification to be filed by 10/30/2015. Expert Witness Statements are to be exchanged 45 days after a final ruling on the Motion for Class Certification and Dispositive motions are due within 90 days after a final ruling on the Motion for Class Certification. Tonna Farrar present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (st1) (Entered: 05/21/2015)
35 Unopposed Motion for Extension of Time for Discovery & Dispositive Motions. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 08/26/2015)
36 Declaration of Alexander Gordon in Support of Motion to Extend Discovery and Dispositive Motions. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Time 35 .) (Gordon, Alexander) (Entered: 08/26/2015)
37 ORDER: by Magistrate Judge Janice M. Stewart GRANTING Motion for Extension of Time 35 . Discovery is to be completed by 1/28/2016. Motion for Class Certification to be filed by 2/29/2016. Expert Witness Statements are to be exchanged 45 days after a final ruling on the Motion for Class Certification and dispositive motions are due within 90 days after a final ruling on the Motion for Class Certification. (jlr) (Entered: 08/27/2015)
38 Joint Motion for Extension of Discovery & PTO Deadlines . Filed by Clackamas County. (Gordon, Alexander) (Entered: 12/08/2015)
39 Declaration of Alexander Gordon in Support of Motion for Extension. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 38 .) (Gordon, Alexander) (Entered: 12/08/2015)
40 ORDER: Granting Joint Motion for Extension of Discovery & PTO Deadlines 38 . Discovery is to be completed by 5/27/2016. Motion for Class Certification to be filed by 6/28/2016. The due dates for the exchange of expert witness statements and for the filing of dispositive motions remain unchanged. Ordered by Magistrate Judge Janice M. Stewart. (pg) Modified on 12/11/2015 (pg). (Entered: 12/09/2015)

03/02/2016 05/25/2016 05/25/2016
06/01/2016
09/12/2016 09/14/2016 10/06/2016 10/06/2016 10/06/2016 10/06/2016

41 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Janice M. Stewart to Magistrate Judge Youlee Yim You. (eo) (Entered: 03/02/2016)
42 Stipulated Motion for Extension of Discovery & PTO Deadlines . Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 05/25/2016)
43 Declaration of Alexander Gordon in Support of Stipulated Motion to Extend Discovery Deadlines. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 42 .) (Gordon, Alexander) (Entered: 05/25/2016)
44 ORDER: Granting Stipulated Motion to Extend Discovery Deadlines 42 . Discovery is to be completed by 10/25/2016. Motion for Class Certification to be filed by 11/25/2016. Expert Witness Statements are to be exchanged within 45 days after the final ruling on the Motion for Class Certification. Dispositive Motions will be due 90 days after the final ruling on the Motion for Class Certification. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 06/01/2016)
45 Stipulated Motion for Protective Order . Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 09/12/2016)
46 Stipulated Protective Order. Signed on 9/14/2016 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 09/14/2016)
47 Motion for Leave to conduct deposition of David Hodges. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 10/06/2016)
48 Declaration of Alexander Gordon in support of motion for leave to conduct deposition of David Hodges. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Leave 47 .) (Gordon, Alexander) (Entered: 10/06/2016)
49 Motion for Leave to conduct deposition of Scott Graue. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 10/06/2016)
50 Declaration of Alexander Gordon in support of motion for leave to conduct deposition of Scott Graue. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Leave 49 .) (Gordon, Alexander) (Entered: 10/06/2016)

10/06/2016 10/06/2016 10/12/2016 10/12/2016 10/12/2016 10/17/2016 10/24/2016
11/02/2016 11/02/2016

51 Motion for Summary Judgment and memo in support of MSJ. Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 10/06/2016)
52 Declaration of Lt. Kevin Thies in support of MSJ. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Summary Judgment 51 .) (Gordon, Alexander) (Entered: 10/06/2016)
53 ORDER: Granting Unopposed Motion for Leave 47 ; Granting Unopposed Motion for Leave 49 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/12/2016)
54 Motion for Extension of Discovery & PTO Deadlines and Abate Filing of Defendants' Motion For Summary Judgment. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 10/12/2016)
55 Notice of Attorney Withdrawal: of Tonna K. Farrar Filed by All Plaintiffs (Farrar, Tonna) Modified on 10/17/2016 (pvh). (Entered: 10/12/2016)
56 ORDER: Granting Alternative Motion to Withdraw or Substitute an Attorney 55 filed as a Notice of Attorney Withdrawal: of Tonna K. Farrar. Attorney Tonna K. Farrar is withdrawn as counsel of record. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/17/2016)
57 ORDER: STRIKING WITH LEAVE TO REFILE Defendants' Motion for Summary Judgment (docket # 51 ) for failure to confer as required by Local Rule 7-1(a)(1)(A). See ECF #54, p. 3. ORDER: GRANTING IN PART Defendants' Unopposed Motion for Extension of Discovery and PTO deadlines (ECF # 54 ) and extending the discovery deadline through January 25, 2017. All remaining previously set deadlines remain in effect, including the November 25, 2016 deadline for filing a Motion for Class Certification. See ECF # 44 . In all other respects, the motion (ECF # 54 ) is DENIED AS MOOT. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/24/2016)
58 Motion for Summary Judgment and supporting memorandum. Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 11/02/2016)
59 Declaration of Lt. Kevin Thies in support Defendants' motion for summary judgment. Filed by Clackamas County, Craig Roberts.

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(Related document(s): Motion for Summary Judgment 58 .) (Gordon, Alexander) (Entered: 11/02/2016)
60 Motion for Extension of Time . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 11/11/2016)
61 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 60 .) (Berman, Leonard) (Entered: 11/11/2016)
62 Response in Opposition to Motion for Extension of Time 60 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 11/14/2016)
63 Declaration of Alexander Gordon in Support of Clackamas Defendants Response in Opposition to Plaintiff's Motion for Extension of Time re Class Certification and Response to MSJ. Filed by Clackamas County, Craig Roberts. (Related document(s): Response in Opposition to Motion 62 .) (Attachments: # 1 Exhibit 1-6) (Gordon, Alexander) (Entered: 11/14/2016)
64 ORDER: DENYING defendants' request for oral argument (ECF # 62 ), and GRANTING Plaintiffs' Motion to Extend Time, (ECF # 60 ). ORDER: The court will entertain no further requests for extension of the case schedule. ORDER: Plaintiffs' motion for class certification, dispositive motion(s), and response to defendants' Motion for Summary Judgment (ECF # 58 ) are due February 27, 2017. Defendants' response to plaintiffs' motions and reply to their motion are due March 27, 2017. Plaintiffs' reply to their motion(s) is due April 17, 2017. ORDER: On or before November 30, 2016, the parties shall email yypropdoc@ord.uscourts.gov advising of their availability for oral argument during the weeks of May 8 and May 15, 2017. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 11/14/2016)
65 Notice of Dismissal of Party Saylor Filed by All Plaintiffs (Berman, Leonard) (Entered: 01/09/2017)
66 Scheduling Order: SETTING a Telephone Conference for Monday, 1/9/2017 at 11:30AM before Magistrate Judge Youlee Yim You. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 01/09/2017)
67 MINUTES of Proceedings: Telephone Discovery Conference held. Parties independently resolved their dispute. Leaonard

01/20/2017
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01/30/2017 01/30/2017

Randolph Berman present as counsel for plaintiffs. Alexander Gordan present as counsel for defendants. Court Reporter: Dennis Apodaca. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 01/09/2017)
68 Scheduling Order: SETTING Oral Argument for Thursday, 5/11/2017 at 10:00AM in Courtroom 12B before Magistrate Judge Youlee Yim You regarding Motion for Summary Judgment 58 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 01/20/2017)
69 Motion for Extension of Discovery & PTO Deadlines . Expedited Hearing requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 01/26/2017)
70 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 69 .) (Berman, Leonard) (Entered: 01/26/2017)
71 Response in Opposition to Motion for Extension of Discovery & PTO Deadlines 69 Oral Argument requested. Filed by All Defendants. (Gordon, Alexander) (Entered: 01/27/2017)
72 Response to Motion for Extension of Discovery & PTO Deadlines 69 oral argument requested. Filed by All Defendants. (Attachments: # 1 Exhibit) (Gordon, Alexander) (Entered: 01/27/2017)
73 Scheduling Order: regarding Plaintiff's Motion for Extension of Discovery & PTO Deadlines 69 . ORDER - SETTING Oral Argument for Monday, 1/30/2017 at 3:00PM by telephone before Magistrate Judge Youlee Yim You. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 01/30/2017)
74 Reply to Motion for Extension of Discovery & PTO Deadlines 69 oral argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 2013 CCSO Screen Documents) (Berman, Leonard) (Entered: 01/30/2017)
75 Minutes of Proceedings: Oral Argument held by phone before Magistrate Judge Youlee Yim You on 1/30/2017. ORDER Granting in Part and Denying in Part Plaintiff's Motion for Extension of Discovery & PTO Deadlines 69 . Plaintiff shall have until 2/21/2017 to depose Sgt. Freeman and Sgt. Thompson. All other deadlines in this matter remain in effect. Leonard Berman present as counsel for plaintiff(s). Alex Gordon present as counsel for defendant(s). Court Reporter: Bonita Shumway (503) 326-

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8188. Magistrate Judge Youlee Yim You presiding. Modified on 1/30/2017 (pvh). Modified on 1/31/2017 (pvh). (Entered: 01/30/2017)
76 ORDER. The court is in receipt of a letter from defendant Clackamas County requesting a telephone conference. No telephone conference is necessary. Although no further clarification should be required, the court clarifies that, on January 30, 2017, the discovery deadline was extended solely to complete the depositions of Sgt. Freeman and Sgt. Thompson in light of inclement weather. Plaintiff's motion 69 was otherwise denied. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 02/02/2017)
77 Motion for Leave to File Amended Complaint/Petition . Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit A- Proposed 3d Am. Complaint) (Berman, Leonard) (Entered: 02/27/2017)
78 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Leave to File Amended Complaint/Petition 77 .) (Berman, Leonard) (Entered: 02/27/2017)
79 Motion to Certify the Class (es). Oral Argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 02/27/2017)
80 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion to certify class 79 .) (Berman, Leonard) (Entered: 02/27/2017)
81 Response in Opposition to Motion for Summary Judgment and supporting memorandum 58 oral argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 02/27/2017)
82 Motion for Partial Summary Judgment . Oral Argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 02/27/2017)
83 Declaration of Scott Graue . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 02/27/2017)
84 Declaration of Albert Love . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 02/27/2017)

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85 Declaration of William Dillon . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 02/28/2017)
86 Declaration of David Hodges . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 02/28/2017)
87 Declaration of Jessica Dove . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 02/28/2017)
88 Declaration of Leonard Berman. Filed by All Plaintiffs. (Attachments: # 1 Exhibit CCJ CCTV 10-10-12, # 2 Exhibit CCJ FLOOR PLAN, # 3 Exhibit OAR Search Rules, # 4 Exhibit CCSO Inamte Searches policy, # 5 Exhibit CCJ Hallway Curtains, # 6 Exhibit CFR regs, # 7 Exhibit Thompson/Freeman Excerpts) (Berman, Leonard) (Entered: 02/28/2017)
89 Amended Declaration of Albert Love . Filed by All Plaintiffs. (Related document(s): Motion for Partial Summary Judgment 82 .) (Berman, Leonard) (Entered: 03/03/2017)
90 Response in Opposition to Motion to Certify the Class (es) 79 , Motion for Leave to File Amended Complaint/Petition 77 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 03/13/2017)
91 Scheduling Order: SETTING Oral Argument for Thursday, 4/6/2017 at 2:00PM by telephone before Magistrate Judge Youlee Yim You regarding Plaintiffs' Motion for Leave to File Amended Complaint 77 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 03/16/2017)
92 Motion to Compel Production of Documents. Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 03/27/2017)
93 Declaration of Alexander Gordon in Support of Motion to Compel. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion to compel 92 .) (Gordon, Alexander) (Entered: 03/27/2017)
94 MINUTES of Proceedings: Oral Argument held on 4/6/2017 by telephone regarding regarding Motion for Leave to File Amended Complaint/Petition 77 . Leonard Berman present as counsel for plaintiffs. Alexander Gordon present as counsel for defendants.

04/06/2017
04/06/2017 04/07/2017 04/07/2017 04/11/2017 04/11/2017 04/13/2017

Court Reporter: Dennis Apodaca (503) 326-8182. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 04/06/2017)
95 Findings & Recommendation: Plaintiffs' Motion for Leave to File Amended Complaint 77 should be denied. This Findings and Recommendation will be referred to a district judge. Objections, if any, are due Thursday, April 20, 2017. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. Signed on 4/6/2017 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/06/2017)
96 ORDER: REFERRING Findings & Recommendation 95 and Motion for Leave to File Amended Complaint 77 to Judge Michael H. Simon for his review and determination. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/06/2017)
97 Scheduling Order: SETTING a Discovery Hearing for Thursday, 4/13/2017 at 2:30PM by telephone before Magistrate Judge Youlee Yim You regarding Motion to Compel Production of Documents 92 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/07/2017)
98 Response to Motion to Compel Production of Documents 92 oral argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 04/07/2017)
99 Reply in Support of Clackamas to Motion to Compel Production of Documents 92 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 04/11/2017)
100 Declaration of Alexander Gordon in Support of Reply re Motion to Compel Production. Filed by Clackamas County, Craig Roberts. (Related document(s): Reply to Motion 99 .) (Attachments: # 1 Exhibit 1 - 7) (Gordon, Alexander) (Entered: 04/11/2017)
101 MINUTES of Proceedings: Discovery Hearing held by telephone regarding Motion to compel 92 . Motion to Compel # 92 is DENIED for reasons stated on the record. Leonard Berman present as counsel for plaintiffs. Alexander Gordon present as counsel for defendants. (Court Reporter Bonita Shumway.) Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 04/13/2017)

04/21/2017 102

ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge You's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge You's Findings and Recommendation, ECF 95 . Plaintiffs' Motion for Leave to File Amended Complaint/Petition (ECF 77 ) is DENIED. Signed on 4/21/2017 by Judge Michael H. Simon. (mja) (Entered: 04/21/2017)

05/08/2017

103 AMENDED Scheduling Order: By Order of the Court, RESETTING the 5/11/2017 Oral Argument BY TELEPHONE for 10:00AM before Magistrate Judge Youlee Yim You regarding Motion for Summary Judgment 58 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/08/2017)

05/09/2017

104 Scheduling Order: STRIKING the 5/11/2017 telephone Oral Argument. ORDER - The Parties are to jointly submit a proposed briefing schedule by Friday, 5/12/2017. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/09/2017)

05/11/2017

105 Proposed Joint Case Management Schedule for briefing schedule. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 05/11/2017)

05/16/2017

106 ORDER: by Magistrate Judge Youlee Yim You - ADOPTING the parties Joint Proposed Briefing Schedule 105 and setting Oral Argument as follows: Defendants' Reply to their Motion for Summary Judgment 58 is due 06/23/2017; Defendants' Response to Plaintiffs' Motion for Summary Judgment 82 is due 6/23/2017; Defendants' Response to Plaintiffs' Motion for Class Certification 79 is due 6/23/2017; Plaintiffs' Reply of their Motion for Partial Summary Judgment 82 is due 8/4/2017; Plaintiff's Reply of their Motion for Class Certification 79 is due 8/4/2017. ORDER - SETTING Oral Argument for Thursday, 8/24/2017 at 1:30 PM on all outstanding motions. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/16/2017)

06/20/2017

107 Motion to File Excess Pages in Defendants' Reply to Motion for Summary Judgment. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 06/20/2017)

06/23/2017

108 Response in Opposition to Motion for Partial Summary Judgment 82 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 06/23/2017)

06/23/2017
06/23/2017 06/23/2017 06/23/2017
06/23/2017 07/05/2017 07/20/2017 07/20/2017 07/20/2017

109 Declaration of Alexander Gordon in Support of Defendants' Response to Plaintiffs' Motion Partial Summary Judgment. Filed by Clackamas County, Craig Roberts. (Related document(s): Response in Opposition to Motion 108 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Gordon, Alexander) (Entered: 06/23/2017)
110 Reply Of Clackamas County and Sheriff Craig Roberts to Motion for Summary Judgment and supporting memorandum 58 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 06/23/2017)
111 Declaration of Lee Eby in Support of Reply to Motion for Summary Judgment. Filed by Clackamas County, Craig Roberts. (Related document(s): Reply to Motion 110 .) (Gordon, Alexander) (Entered: 06/23/2017)
112 Declaration of Alexander Gordon in Support of Reply to Motion for Summary Judgment. Filed by Clackamas County, Craig Roberts. (Related document(s): Reply to Motion 110 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Gordon, Alexander) (Entered: 06/23/2017)
113 Objections , Response in Opposition to Motion to Certify the Class (es) 79 oral argument requested. Filed by All Defendants. (Gordon, Alexander) (Entered: 06/23/2017)
114 ORDER: Granting Motion to File Excess Pages 107 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 07/05/2017)
115 Scheduling Order: RESETTING Oral Argument (LOCATION ONLY) from in-person to by telephone for Thursday, 8/24/2017 at 1:30 PM on all outstanding motions. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 07/20/2017)
116 Notice of Association of Attorney Leonard Randolph Berman,Mark J. Geragos for Albert Love. et al. Filed by All Plaintiffs (Berman, Leonard) (Entered: 07/20/2017)
117 Motion for Leave to Appear Pro Hac Vice for Attorney Mark Geragos . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-5086293. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 07/20/2017)

07/26/2017 07/27/2017 07/27/2017 08/03/2017
08/03/2017
08/04/2017 08/04/2017 08/08/2017 08/24/2017

118 Notice of Appearance of Leonard Randolph Berman appearing on behalf of All Plaintiffs Pro Hac Vice Applications for Meiselas and Geragos Filed by on behalf of All Plaintiffs (Attachments: # 1 Attachment) (Berman, Leonard) (Entered: 07/26/2017)
119 Amended Motion for Leave to Appear Pro Hac Vice for Attorney Mark John Geragos . Filing fee in the amount of $300 collected; Receipt No.: 0979-5086293. Filed by All Plaintiffs. (Geragos, Mark) (Entered: 07/27/2017)
120 Motion for Leave to Appear Pro Hac Vice for Attorney Benjamin Meiselas . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-5093459. Filed by All Plaintiffs. (Meiselas, Benjamin) (Entered: 07/27/2017)
121 ORDER: Granting Application for Special Admission Pro Hac Vice of Mark J. Geragos for William Dillon, Scott Vincent Graue, David Michael Hodges, Albert Love,and Jayson Saylor. Application Fee in amount of $300 collected. Receipt No. 09795086293 issued. Signed on 8/3/2017 by Magistrate Judge Youlee Yim You. (ecp) (Entered: 08/03/2017)
122 ORDER: Granting Application for Special Admission Pro Hac Vice of Benjamin J. Meiselas for William Dillon,Scott Vincent Graue,David Michael Hodges,Albert Love,and Jayson Saylor. Application Fee in amount of $300 collected. Receipt No. 09795093459 issued. Signed on 8/3/2017 by Magistrate Judge Youlee Yim You. (ecp) (Entered: 08/03/2017)
123 Reply to Motion to Certify the Class (es) 79 oral argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 08/04/2017)
124 Reply to Motion for Partial Summary Judgment 82 oral argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 08/04/2017)
125 This filing includes a conventionally filed DVD. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's electronic record in CM/ECF. Exhibit One - CCJ CCTV 10-10-12. Filed by All Plaintiffs. (ecp) (Entered: 08/10/2017)
126 MINUTES of Proceedings: Oral argument held on 8/24/2017 by phone regarding Motion for Summary Judgment 58 , Motion to certify class 79 , and Motion for Partial Summary Judgment 82 . ORDER - Parties shall file a Joint Statement of Undisputed

09/07/2017 09/07/2017 09/14/2017 09/14/2017
09/18/2017 09/19/2017 10/10/2017

Material Facts and respective Statements of Disputed Material Facts by Wednesday, October 11, 2017. Each fact must include a reference to evidence in the record, including corresponding ECF docket numbers and page numbers. Motions will be taken under advisement on 10/11/2017. Benjamin J. Meiselas and Leonard Berman present as counsel for plaintiffs. Alexander Gordon present as counsel for defendants. Court Reporter: Nancy Walker. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 08/25/2017)
127 Motion to Dismiss for Lack of Jurisdiction . Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 09/07/2017)
128 Declaration of Kevin Thies in Support of Motion to Dismiss for want of Subject Matter Jurisdiction. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion to Dismiss/Lack of Jurisdiction 127 .) (Gordon, Alexander) (Entered: 09/07/2017)
129 Scheduling Order: SETTING a Scheduling Conference for Thursday, 9/14/2017 at 10:30AM by telephone before Magistrate Judge Youlee Yim You. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 09/14/2017)
130 MINUTES of Proceedings: Scheduling Conference held on 9/14/2017 by telephone. ORDER: Striking the due dates for filing fact statements relating to the pending Motion for Summary Judgment (ECF # 58 ), Motion to Certify Class (ECF # 79 ), and Motion for Partial Summary Judgment (ECF # 82 ) and staying a ruling on those motions pending a final ruling on defendants Motion to Dismiss (ECF # 127 ). Benjamin J. Meiselas present as counsel for plaintiff(s). Alexander Gordon present as counsel for defendant(s). Court Reporter: None. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 09/15/2017)
131 Joint Motion to Set Briefing Schedule. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) Modified on 9/19/2017 (pvh). (Entered: 09/18/2017)
132 ORDER: Granting Joint Motion to set Briefing Schedule 131 . Plaintiffs' Response to Defendants' Motion to Dismiss for Lack of Jurisdiction 127 is due by 10/11/2017. Defendants' Reply is due by 10/25/2017. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 09/19/2017)
133 Reply to Motion to Dismiss for Lack of Jurisdiction 127 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 10/10/2017)

10/25/2017 10/25/2017 10/31/2017 11/29/2017
12/05/2017 12/05/2017 12/18/2017

134 Reply in Support to Motion to Dismiss for Lack of Jurisdiction 127 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 10/25/2017)
135 Declaration of Kevin Thies in Support of Reply Memorandum to Motion to Dismiss for Want of Subject-Matter Jurisdiction. Filed by Clackamas County, Craig Roberts. (Related document(s): Reply to Motion 134 .) (Gordon, Alexander) (Entered: 10/25/2017)
136 Scheduling Order: SETTING Oral Argument for Wednesday, 11/29/2017 at 1:30PM by telephone before Magistrate Judge Youlee Yim You regarding Defendants' Motion to Dismiss for Lack of Jurisdiction 127 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/31/2017)
137 MINUTES of Proceedings: Oral argument held regarding defendants' Motion to Dismiss (ECF # 127 ). ORDER - The parties shall file a Joint Statement of Undisputed Material Facts, their respective Statements of Disputed Material Facts, and the additional submittals discussed during the August 24, 2017 hearing on or before February 1, 2018. Each fact must include a reference to evidence in the record, including corresponding ECF docket numbers and page numbers. Leondard Berman present as counsel for plaintiffs. Alexander Gordon present as counsel for defendants. Court Reporter: Bonita Shumway (503) 326-8188. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 11/29/2017)
138 Notice of Attorney Withdrawal: Filed by All Plaintiffs. (Meiselas, Benjamin) (Entered: 12/05/2017)
139 Notice of Attorney Withdrawal: Filed by All Plaintiffs. (Geragos, Mark) (Entered: 12/05/2017)
140 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Oral Argument held on 11/29/2017 before Judge Youlee Yim You, Court Reporter Bonita J. Shumway, telephone number 503-326-8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/27/2017. Redaction Request due 1/8/2018. Redacted Transcript Deadline set for 1/18/2018. Release of

01/29/2018
02/01/2018 02/02/2018 02/16/2018 02/17/2018 02/20/2018 02/21/2018 05/02/2018

Transcript Restriction set for 3/19/2018. (Shumway, Bonita) (Entered: 12/18/2017)
141 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic hearing held on August 24, 2017 before Judge Youlee Yim You, Court Reporter Nancy M. Walker, telephone number 503-326-8186 or e-mail nancy_walker@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-3268186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 2/5/2018. Redaction Request due 2/20/2018. Redacted Transcript Deadline set for 3/1/2018. Release of Transcript Restriction set for 4/30/2018. (Walker, Nancy) (Entered: 01/29/2018)
142 Concise Statement of Disputed Material Facts. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 02/01/2018)
143 ORDER REGARDING FACT STATEMENTS. Signed on 2/2/2018 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 02/02/2018)
144 Response to Concise Statement of Material Facts regarding Motion for Partial Summary Judgment 82 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 02/16/2018)
145 Amended Response to Concise Statement of Material Facts regarding Motion for Partial Summary Judgment 82 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 02/17/2018)
146 Motion for Clarification Of Court Order Scheduling, Order 143 . Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 02/20/2018)
147 ORDER: Defendants' motion for clarification (ECF # 146 ) is granted. The court clarifies that the statements of material facts submitted by the parties will assist the court in resolving all pending motions. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 02/21/2018)
148 Findings & Recommendation: (1) Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF # 127 ) should be DENIED; (2) Defendants' Motion for Summary Judgment (ECF # 58 ) should be GRANTED as to plaintiffs' claims for alleged

05/02/2018 05/15/2018 05/16/2018

constitutional violations based on the emergency shakedown search of October 10, 2012 and GRANTED as to all claims under the Eighth Amendment. Otherwise, Defendants' Motion for Summary Judgment (ECF # 58 ) should be DENIED; (3) Plaintiffs' Motion to Certify the Class (ECF # 79 ) should be GRANTED as to Class One, but only as to the Fourth Amendment claims of male inmates at the CCJ who underwent return-from-court visual strip searches between September 25, 2012, and the date in May 2013 on which the County installed privacy panels in CCJs hallway. Plaintiffs William Dillon, Scott Graue, David Hodges, and Albert Love should be appointed as class representatives of Class One. Additionally, Leonard Berman should be appointed as class counsel. In all other respects, the motion to certify should be DENIED; and (4) Plaintiffs' Motion for Partial Summary Judgment (ECF # 82 ) should be DENIED.
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, May 16, 2018. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. Signed on 5/2/2018 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/02/2018)
149 ORDER: referring Findings & Recommendation 148 , Motion for Summary Judgment 58 , Motion to Certify the Class(es) 79 , Motion for Partial Summary Judgment 82 , and Motion to Dismiss for Lack of Jurisdiction 127 , to Judge Simon for his review and determination. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/02/2018)
150 Objections to Findings & Recommendation: Motion for Summary Judgment and supporting memorandum 58 , Motion to Dismiss for Lack of Jurisdiction 127 , Motion to Certify the Class (es) 79 , Motion for Partial Summary Judgment 82 148 Oral Argument requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/15/2018)
151 Unopposed Motion for Extension of Time to File an Objection to Findings and Recommendations to 148 . Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 05/16/2018)

05/16/2018

152 Declaration of Alexander Gordon in Support of Motion For Extension of Time to File Objections to Findings and Recommendations. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Time to File Objection to F & R 151 .) (Gordon, Alexander) (Entered: 05/16/2018)

05/16/2018

153 ORDER: Defendant's Unopposed Motion for Extension of Time 151 to File Objection to F & R is GRANTED. Defendants' Objections to the Findings and Recommendation are due by 5/17/2018. Response is due within 14 days after being served with a copy of the objections. Ordered by Judge Michael H. Simon. (pvh) (Entered: 05/16/2018)

05/17/2018

154 Objections to Findings & Recommendation: Motion for Summary Judgment and supporting memorandum 58 , Motion to Dismiss for Lack of Jurisdiction 127 , Motion to Certify the Class (es) 79 , Motion for Partial Summary Judgment 82 148 . Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 05/17/2018)

05/24/2018

155 Response to Objections to Findings & Recommendation. Related document(s): 148 Findings & Recommendation,,,,,, 150 Objections to Findings & Recommendation, Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 05/24/2018)

05/30/2018

156 Motion for Extension of Time to File Response to Objections. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/30/2018)

05/30/2018

157 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 156 .) (Berman, Leonard) (Entered: 05/30/2018)

05/31/2018

158 ORDER - Plaintiffs' Motion for Extension of Time (ECF 156 ) is GRANTED. Responses to any objections to the Findings and Recommendation are due by 6/6/2018. Ordered by Judge Michael H. Simon. (mja) (Entered: 05/31/2018)

06/06/2018

159 Response to Objections to Findings & Recommendation. Related document(s): 154 Objections to Findings & Recommendation,. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 06/06/2018)

07/23/2018 160

ORDER - The Court ADOPTS Judge You's Findings and Recommendation, ECF 148 -1. Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF 127 ) is DENIED; Defendants' Motion

07/23/2018 07/25/2018 07/31/2018 07/31/2018
08/01/2018
08/06/2018

for Summary Judgment (ECF 58 ) is GRANTED as to plaintiffs' claims for alleged constitutional violations based on the emergency shakedown search of October 10, 2012 and GRANTED as to all claims under the Eighth amendment. Otherwise, Defendants' Motion for Summary Judgment (ECF 58 ) is DENIED. Plaintiffs' Motion to Certify the Class (ECF 79 ) is GRANTED as to Class One, but only as to the Fourth Amendment claims of male inmates at the CCJ who underwent return-fromcourt visual strip searches between September 25, 2012, and the date in May 2013 on which the County installed privacy panels in CCJ's hallway. Plaintiffs William Dillon, Scott Graue, David Hodges, and Albert Love should be appointed as class representatives of Class One. Additionally, Leonard Berman should be appointed as class counsel. In all other respects, the motion to certify is DENIED. Plaintiffs' Motion for Partial Summary Judgment (ECF 82 ) is DENIED. Signed on 7/23/2018 by Judge Michael H. Simon. (mja) (Entered: 07/23/2018)
161 ORDER: By 8/6/2018, the parties shall confer and provide the court with a proposed schedule for the remainder of the case. Ordered by Magistrate Judge Youlee Yim You. (yy1) (Entered: 07/23/2018)
165 Motion to Have a Copy of the Case Register. Filed by David Michael Hodges. (joha) (Entered: 08/06/2018)
162 Motion for Extension of Time to File Proposed Case Schedule. Filed by Clackamas County, Craig Roberts. (Gordon, Alexander) (Entered: 07/31/2018)
163 Declaration of Alexander Gordon in Support of Motion for Extension of Time to File Proposed Case Schedule. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Time 162 .) (Gordon, Alexander) (Entered: 07/31/2018)
164 ORDER: Unopposed Motion for Extension of Time 162 is GRANTED. By 8/15/2018, the parties shall confer and provide the court with a proposed schedule for the remainder of the case. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/01/2018)
166 ORDER: Hodges' Motion to Have a Copy of the Case Register 165 is DENIED based on LR 83-9(b) (party represented by an attorney cannot appear or act except through the attorney). However, as a courtesy, the court is printing a copy of the docket sheet and mailing it to Hodges with a copy of this order. Ordered

08/08/2018 08/14/2018 09/27/2018
10/03/2018
10/03/2018 01/31/2019

by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/06/2018)
167 Clerk's Notice of Mailing to David Michael Hodges regarding Order 166 and Copy of Docket Sheet. (joha) (Entered: 08/08/2018)
168 Proposed Joint Case Management Schedule . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 08/14/2018)
169 ORDER: by Magistrate Judge Youlee Yim You regarding Proposed Joint Case Management Schedule 168 . The Court adopts the schedule proposed by the parties, except for the proposed trial date. Unless the parties consent to Magistrate Judge jurisdiction, the case will be referred to a District Judge for trial after final ruling on any further dispositive motions. Given the age of the case, no extensions will be granted, even if stipulated to by the parties. New case deadlines are as follows: Discovery for the class and Notice to Class Members; Friday, February 1, 2019. Motion discovery deadlines for discovery; Monday, April 1, 2019. Expert Discovery to be completed by Wednesday, 5/1/2019. Close of Discovery; Monday, 6/3/2019. Summary judgment; Monday, 6/17/2019. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 09/27/2018)
170 AMENDED ORDER: by Magistrate Judge Youlee Yim You regarding Proposed Joint Case Management Schedule 168 . The Court adopts the schedule proposed by the parties, except for the proposed trial date. Unless the parties consent to Magistrate Judge jurisdiction, the case will be referred to a District Judge for trial after final ruling on any further dispositive motions. Given the age of the case, no extensions will be granted, even if stipulated to by the parties. New case deadlines are as follows: Discovery for the class and Notice to Class Members shall be completed by Friday, February 1, 2019. Any discovery motions shall be filed by Monday, April 1, 2019. Expert Discovery shall be completed by Wednesday, 5/1/2019. All discovery shall be completed by Monday, 6/3/2019. Summary judgment motions, if any, shall be filed by Monday, 6/17/2019. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/03/2018)
171 Notice of Attorney Substitution:Attorney Shawn Lillegren is substituted as counsel of record in place of Attorney Alexander Gordon Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 10/03/2018)
172 Motion for Extension of Time To Effectuate Notice. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 01/31/2019)

01/31/2019 02/06/2019
02/15/2019 02/19/2019 04/10/2019 04/22/2019 04/22/2019
04/22/2019 04/23/2019

173 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 172 .) (Berman, Leonard) (Entered: 01/31/2019)
174 ORDER: Due to the age of this case, the court previously held that no further extensions would be granted. Since filing the motion for extension 172 , plaintiff's counsel has represented to the court by email that SSI has agreed to effectuate notice and that it can be accomplished by March 31, 2019, if not sooner. Before the court rules on the current request for extension, it needs proof that SSI has agreed to effectuate notice and proof that SSI has provided a date by which notice will be accomplished. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 02/06/2019)
175 Certificate of Compliance Re: Notice Mailing Completed. Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 172 .) (Berman, Leonard) (Entered: 02/15/2019)
176 ORDER: Plaintiff's Motion for Extension of Time To Effectuate Notice 172 is denied as moot. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 02/19/2019)
177 Motion to Decertify Class. Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 04/10/2019)
178 Stipulated Motion for Extension of Discovery & PTO Deadlines . Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 04/22/2019)
179 Declaration of Shawn Lillegren in Support of Stipulated Motion to Extend Case Management Schedule. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 178 .) (Lillegren, Shawn) (Entered: 04/22/2019)
180 Response in Opposition to Motion to Decertify Class 177 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 04/22/2019)
181 ORDER: Stipulated Motion for Extension of Discovery & PTO Deadlines 178 is GRANTED. New case deadlines are as follows: Plaintiffs' Expert Disclosures are due by 5/1/2019. Defendants' Expert Disclosures are due by 5/31/2019. Expert Discovery to be completed by 7/1/2019. Fact Discovery is to be completed by 8/5/2019. Dispositive Motions, if any, are due by 8/19/2019. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/23/2019)

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05/15/2019
05/15/2019 05/20/2019 05/21/2019 05/21/2019
05/21/2019 05/21/2019 05/21/2019 05/21/2019

182 Reply to Plaintiff's Response (180) to Defendants to Motion to Decertify Class 177 Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 04/25/2019)
183 Scheduling Order: SETTING Telephonic Oral Argument for Tuesday, 5/21/2019 at 1:30PM (by telephone) before Magistrate Judge Youlee Yim You regarding Motion to Decertify Class 177 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/02/2019)
184 ORDER: In resolving the pending Motion to Decertify Class 177 , the court would find it helpful to review the substance of the Notice to Class Members. By Friday, 5/17/2019, plaintiff shall file a copy of the Notice to Class Members for the court's review. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/15/2019)
185 Supplement Proposed Class Notice. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/15/2019)
186 Supplement Corrected Notice to Class. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/20/2019)
187 Stipulated Motion for Extension of Discovery & PTO Deadlines . Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 05/21/2019)
188 Declaration of Shawn Lillegren in Support of Stipulated Motion to Extend Case Management Schedule. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 187 .) (Lillegren, Shawn) (Entered: 05/21/2019)
189 Motion for Imposition of Sanctions . Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 05/21/2019)
190 Declaration of Shawn Lillegren in Support of Motion for Sanctions. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Imposition of Sanctions 189 .) (Lillegren, Shawn) (Entered: 05/21/2019)
191 Second Request for Production to Defendant for Class Discovery. Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 05/21/2019)
192 Request Defendant Response to Plaintiff 2nd Request for Production. (DOCUMENT RESTRICTED ACCORDING TO

05/21/2019
05/21/2019
05/29/2019 06/11/2019 08/06/2019 08/06/2019

PROTECTIVE ORDER) Filed by Clackamas County, Craig Roberts. (Attachments: # 1 Volume(s) 0, # 2 Volume(s) 1, # 3 Volume(s) 2, # 4 Volume(s) 3, # 5 Volume(s) 4, # 6 Volume(s) 5, # 7 Volume(s) 6) (Lillegren, Shawn) (Entered: 05/21/2019)
193 ORDER: Stipulated Motion for Extension of Discovery & PTO Deadlines 187 is GRANTED. Defendants' Expert Disclosures are due by 7/1/2019. Expert Discovery to be completed by 8/1/2019. Fact Discovery is to be completed by 9/3/2019. Dispositive Motions, if any, are due by 10/1/2019. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 05/21/2019)
194 MINUTES of Proceedings: Telephone Oral Argument Hearing held on 5/21/2019 regarding Motion to Decertify Class 177 . Motion is taken under advisement as of 5/21/2019. Leonard Berman present as counsel for plaintiffs. Shawn Lillegren present as counsel for defendants. Court Reporter: Bonita Shumway. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 05/23/2019)
195 Response in Opposition to Motion for Imposition of Sanctions 189 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/29/2019)
196 Reply in support of to Motion for Imposition of Sanctions 189 . Filed by All Defendants. (Lillegren, Shawn) (Entered: 06/11/2019)
197 EMAILED CLASS NOTICE. (pvh) (Entered: 08/06/2019)
198 Findings & Recommendations: Defendants' motion to decertify the class (ECF # 177 ) should be GRANTED. If these findings and recommendations are adopted, the court should direct plaintiffs to immediately prepare and provide notice of decertification to all members of the class to whom notice has previously been sent. This notice of decertification should be submitted to the court for approval before it is sent. These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, August 20, 2019. If no objections are filed, then the Findings and recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. Signed on 8/06/2019 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/06/2019)

08/06/2019 08/06/2019 08/14/2019 08/14/2019 08/15/2019 08/15/2019 08/15/2019 08/19/2019
09/09/2019 09/18/2019

199 ORDER: referring Findings & Recommendation 198 and Motion to Decertify Class 177 to Judge Michael H. Simon for his review and determination. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/06/2019)
200 ORDER: Defendants' Motion for Sanctions (ECF # 189 ) is DENIED. Signed on 8/06/2019 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/06/2019)
201 Motion for Extension of Time to File a Response to Objection to Findings & Recommendation: Motion to Decertify Class 177 should be granted 198 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 08/14/2019)
202 Declaration of Leonard Berman . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time to File Response to Objection to F & R 201 .) (Berman, Leonard) (Entered: 08/14/2019)
203 Response to Motion for Extension of Time to File a Response to Objection to Findings & Recommendation: Motion to Decertify Class 177 should be granted 198 201 . Filed by All Defendants. (Lillegren, Shawn) (Entered: 08/15/2019)
204 Declaration of Shawn Lillegren in support of response to MOET. Filed by All Defendants. (Related document(s): Response to Motion 203 .) (Attachments: # 1 Exhibit 1) (Lillegren, Shawn) (Entered: 08/15/2019)
205 ORDER: referring Plaintiffs' Motion for Extension of Time to File a Response to Objection 201 to Judge Michael H. Simon. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 08/15/2019)
206 ORDER - Plaintiff's Motion for Extension of Time to file Objections (ECF 201 ) is granted and the Court does not anticipate granting any further extensions. Plaintiff has until September 10, 2019 to file objections. The deadline for filing dispositive motions remains October 1, 2019. Ordered by Judge Michael H. Simon. (mja) (Entered: 08/19/2019)
207 Objections to Findings & Recommendation: Motion to Decertify Class 177 should be granted 198 Oral requested. Filed by All Plaintiffs. (Berman, Leonard) (Entered: 09/09/2019)
208 Response to Objections to Findings & Recommendation. Related document(s): 207 Objections to Findings &

09/18/2019 10/01/2019 10/01/2019 10/02/2019 10/10/2019
11/11/2019 11/21/2019 11/21/2019

Recommendation, 198 Findings & Recommendation,,,. Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 09/18/2019)
209 Declaration of Shawn Lillegren in Support of Response to Plaintiffs' Objections to Findings and Recommendations. Filed by Clackamas County, Craig Roberts. (Related document(s): Response to Objections to Findings & Recommendation 208 .) (Lillegren, Shawn) (Entered: 09/18/2019)
210 Motion for Summary Judgment and Memorandum of Law. Oral Argument requested. Filed by Clackamas County, Craig Roberts. (Lillegren, Shawn) (Entered: 10/01/2019)
211 Declaration of Lee Eby in Support of Defendants Motion for Summary Judgment. Filed by Clackamas County, Craig Roberts. (Related document(s): Motion for Summary Judgment 210 .) (Attachments: # 1 Exhibit 1-10) (Lillegren, Shawn) (Entered: 10/01/2019)
212 Scheduling Order: SETTING a Telephonic Conference for Thursday, 10/10/2019 at 1:30PM (by telephone) before Magistrate Judge Youlee Yim You to discuss Defendants' Motion for Summary Judgment 210 . Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 10/02/2019)
213 MINUTES of Proceedings: Telephone Status Conference held on 10/10/2019 regarding Motion for Summary Judgment 210 . Plaintiffs' response to Defendants' Motion for Summary Judgment 210 is due by 11/12/2019. Defendants' reply is due by 11/26/2019. Leonard Berman present as counsel for plaintiffs. Shawn Lillegren present as counsel for defendants. Court Reporter: Nancy Walker. Magistrate Judge Youlee Yim You presiding. (pvh) (Entered: 10/17/2019)
214 Response in Opposition to Motion for Summary Judgment and Memorandum of Law 210 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 11/11/2019)
215 Reply in support of to Motion for Summary Judgment and Memorandum of Law 210 . Filed by All Defendants. (Lillegren, Shawn) (Entered: 11/21/2019)
216 Declaration of Shawn Lillegren in support of Reply on motion for summary judgment. Filed by All Defendants. (Related document(s): Motion for Summary Judgment 210 .) (Lillegren, Shawn) (Entered: 11/21/2019)

12/09/2019 217

ORDER - The Court has reviewed de novo Plaintiff's objections (ECF 207 ). For the reasons stated by Judge You, the Court ADOPTS Judge You's Findings and Recommendation (ECF 198 ). Defendants' Motion to Decertify the Class (ECF 177 ) is GRANTED. Within 14 days, Plaintiffs shall prepare a draft notice of decertification and submit that draft to Judge You for her review and approval before sending the final notice to the class. Signed on 12/9/2019 by Judge Michael H. Simon. (mja) (Entered: 12/09/2019)

12/18/2019

218 Notice of Appeal to the 9th Circuit from Order on Motion Miscellaneous,,, Order on Findings & Recommendation,, 217

(fee waiver status selected (IFP)) . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 12/18/2019)

12/19/2019

USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 218 . Case Appealed to 9th Circuit Court of Appeals Case Number 19-36084 assigned. (jtj) (Entered: 12/19/2019)

02/27/2020

219 Order of USCA for the 9th Circuit, USCA # 19-36084, re Notice of Appeal 218 . A review of the record and the responses to this court's December 23, 2019 order demonstrates that this court lacks jurisdiction over this appeal because the order challenged in the appeal is not final or appealable. See 28 U.S.C. § 1291; Fed. R. Civ. P. 23(f); Fed. R. App. P. 5(a); Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) ("When, as here, an appeal falls within the court of appeals' discretion, a party must file a petition for permission to appeal."). To the extent appellants' January 13, 2020 filing seeks permission to appeal the district courts December 9, 2019 order decertifying the class, the request is denied. See Chamberlan, 402 F.3d at 959 (identifying circumstances warranting immediate appeal of class certification decisions); see also Nutraceutical Corp. v Lambert, 139 S. Ct. 710, 714-15 (2019) (14-day deadline for seeking immediate appeal from order granting or denying class certification is mandatory). DISMISSED. (jtj) (Entered: 02/27/2020)

03/19/2020

220 MANDATE Issued regarding ( 219 Order of USCA for the 9th Circuit, USCA # 19-36084, re Notice of Appeal 218 . The appeal is DISMISSED. (jtj) (Entered: 03/19/2020)

04/20/2020

221 Findings & Recommendations. Defendants' Motion for Summary Judgment (ECF # 210 ) should be GRANTED in full, in that: 1) the § 1983 claims against Sheriff Roberts should

dismissed; 2) the Fourth Amendment claim against the County should be dismissed; and 3) the O.R.S. 30.865 claim against defendants should be dismissed. Because no viable claims remain, this case should be dismissed with prejudice. These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, May 04, 2020. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. Signed on 4/20/2020 by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/20/2020)

04/20/2020

222 ORDER: referring Findings & Recommendations 221 and Motion for Summary Judgment 210 , to Judge Michael H. Simon for his review and determination. Ordered by Magistrate Judge Youlee Yim You. (pvh) (Entered: 04/20/2020)

05/03/2020

223 Objections to Findings & Recommendation: Motion for Summary Judgment and Memorandum of Law 210 should be granted 221 . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 05/03/2020)

05/15/2020

224 Response to Objections to Findings & Recommendation. Related document(s): 223 Objections to Findings & Recommendation. Filed by All Defendants. (Lillegren, Shawn) (Entered: 05/15/2020)

05/19/2020 225

ORDER - Plaintiffs timely filed objections (ECF 223 ), to which Defendants responded. ECF 224 . Plaintiffs object to the entirety of Judge You's Findings and Recommendation. The Court has reviewed Judge You's Findings and Recommendation de novo and adopts them. The Court GRANTS Defendants' Motion for Summary Judgment (ECF 210 ) and DISMISSES this case with prejudice. Signed on 5/19/2020 by Judge Michael H. Simon. (mja) (Entered: 05/19/2020)

05/19/2020

226 JUDGMENT - Based on the Court's ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IT IS ADJUDGED that this case is DISMISSED with prejudice. Signed on 5/19/2020 by Judge Michael H. Simon. (mja) (Entered: 05/19/2020)

06/16/2020

227 Notice of Appeal to the 9th Circuit (fee waiver status selected (IFP)) . Filed by All Plaintiffs. (Berman, Leonard) (Entered: 06/16/2020)

06/18/2020

USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 227 . Case Appealed to 9th Circuit

Court of Appeals Case Number 20-35544 assigned. (jtj) (Entered: 06/18/2020)

 
 Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 1 of 20

Leonard R. Berman 4711 SW Huber St., Suite E-3 Portland, OR 97219 (503) 473-8787 OSB # 96040 Easyrabbi@yahoo.com
ATTORNEY FOR PLAINTIFF(S)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Portland Division

____________________________________

:

WILLIAM DILLON, SCOTT GRAUE , :

Case No. 3:14-CV-820

DAVID HODGES, Individually, on behalf :

of a class of others similarly situated,

:

:

CLASS ACTION

:

COMPLAINT

Plaintiff(s),

:

JURY TRIAL DEMANDED

:

:

:

v.

:

:

CLACKAMAS COUNTY,

:

CRAIG ROBERTS,

:

both individually and in his

:

official capacity as Sheriff,

:

:

Defendants.

:

____________________________________:

/ / /

INTRODUCTION This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiff William Dillon and scott Graue and the proposed Class Members

1 COMPLAINT

Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 2 of 20
by the United States Constitution and the laws of the United States of America, the Fourth And Eighth Amendments and the Oregon Constitution, Article 1 Sec. 9 -Unreasonable Search and Seizure and Sec. 16- Cruel and Unusual Punishment. For at least the past two years, Clackamas County (hereinafter, “CC”) has had a policy of stripsearching inmates in public and in public and group settings with closed circuit cameras in view in violation of the ABA Standard 23-7.9 Searches of prisoners’ bodies and OAR 291-041-0020 Inmates (infra) for random searches, after court hearings, and during routine searches as well as one mass search of 160 inmates on or about October 10, 2012.
These group and public strip searches have been conducted in the hallways and open areas in the Clackamas County Jail (hereinafter “CCJ”) on a daily basis since May 21, 2012. No pat-downs occur. Other corrections facilities do pat-down searches and only conduct strip searches when reasonable suspicion arises from a pat-down and in private, individually. On or about October 10, 2012, several dozen inmates up to 160 or more were pulled out of their cells in pairs by deputies in camouflage commando gear and publicly strip searched. Upon information and belief, this strip search practice derived from the custom, practices and/or written procedures of the aforementioned County Departments, and was promulgated by senior Department officials.
With this as a background, Plaintiff William Dillon, Scott Graue, and david Hodges individually, by and through counsel, hereby complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights
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of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government.
2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES
3. Plaintiff Scott Graue resides in Clackamas County, Oregon, Dillon and Hodges live in other counties.
4. Defendant Clackamas County (hereinafter,“CC”) is a county government organized and existing under the laws of the State of Oregon. At all times relevant hereto, the County, acting through its Corrections Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the MCIJ and was responsible for the appointment, training, supervision and conduct of all Department personnel. In addition, at all relevant times, the County was responsible for enforcing the rules of the CCJ, and for ensuring the personnel employed in the CCJ followed the Constitution and laws of the United States and of the State of Oregon.
5. Defendant Craig Roberts is the sheriff and final decision-maker and policy makers with respect to the treatment of pre-trial and other detainees over which the CCJ exercises custodial or other control.
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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 4 of 20

CLASS ACTION ALLEGATIONS

6. Plaintiff bring this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of

the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly

situated individuals who were strip searched in public and group settings.

7. The classes that Plaintiffs seek to represent are defined as follows:

Class One

All persons who have been or will be placed into the custody of the CCJ regardless of charges, while unclothed in a group and public setting in open areas involving one or more deputy who:

A.

Inspects the individual from top to bottom;

B.

Inspects his hair, ears, mouth, hands, armpits, feet,

between toes, nostrils;

C.

Inspects a woman’s breasts or tells a man to separate

his penis and testicles;

D.

Inspects beneath the foreskin of an uncircumcised

male;

E.

Requires the individual to bend and spread buttocks;

F.

Requires the individual to face a wall so staff can

inspect the back of the body;

The class period commences on May 19, 2012 and extends to the date on which Clackamas County (CC) is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting group and public strip searches after court hearings, on routine schedules and/or on a random basis. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.

CLASS TWO
All persons who have been or will be placed into the custody of the CCJ regardless of charges, while unclothed in a group and public setting in open areas involving one or more deputy who:

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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 5 of 20

G.

Inspects the individual from top to bottom;

H.

Inspects his hair, ears, mouth, hands, armpits, feet,

between toes, nostrils;

I.

Inspects a woman’s breasts or tells a man to separate

his penis and testicles;

J.

Inspects beneath the foreskin of an uncircumcised

male;

K.

Requires the individual to bend and spread buttocks;

L.

Requires the individual to face a wall so staff can

inspect the back of the body;

The class period pertains to a one-time public search of at least 160 inmates on or about October 10, 2012 and the class commences on May 19, 2012 and extends to the date on which Clackamas County is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice and custom of conducting such strip searches. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.

8. 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).

9. The members of the class are so numerous as to render joinder impracticable.

Upon information and belief, there are hundreds, if not thousands, of people arrested

who are placed into the custody of CC every month – all of whom are members of the

proposed class. Upon information and belief, the size of the proposed class totals at least

2,000 individuals.

10. Upon information and belief, joinder of all of these individuals is

impracticable because of the large number of class members and the fact that class

members are likely dispersed over a large geographical area, with some members

presently residing outside of the County and this Judicial District. Furthermore, upon

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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 6 of 20
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.
11. 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 in an unreasonable fashion. All members of the class were placed into the custody of their CCJ facilities, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
12. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiff and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the class members.
13. The representative Plaintiff (s) have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.
14. Plaintiffs have retained counsel who has substantial experience and success in the prosecution of civil rights litigation and class action litigation.
15. Counsel for Plaintiffs know of no conflicts among members of the class, or between counsel and members of the class.
16. 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 placed into the custody of MC and involved in kitchen duty. In short, the aforementioned
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County Departments, the Policy Making Defendants and County Corrections Officers acted on grounds generally applicable to all class members.
17. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiff (s) seek certification under Rule 23(b)(3).
18. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy/practice of strip searching in an unreasonable fashion, all individuals committed to the MCIJ is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
19. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
7 COMPLAINT

Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 8 of 20 20. Upon information and belief, there are no other actions pending to address the
Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for the past several years.
21. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff(s) also seek partial certification under Fed. R. Civ. P. 23(c)(4).
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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 9 of 20
FACTS Facts Applicable to the Class Generally 22. The Fourth Amendment of the United States Constitution prohibits state and county officials, such as the Policy Making Defendant in this action and the Corrections Officers they supervise, from performing strip searches in an unreasonable fashion on pre-trial detainees. 23. The Eighth Amendment of the United States Constitution prohibits state and county officials, such as the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches in an unreasonable fashion on sentenced inmates, as an example of cruel and unusual punishment. 24. Upon information and belief, CC and the Policy Making Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who participate in kitchen duty in the custody of CC (by forcing them to remove their clothing for a visual inspection of their bodies and/or forcing them to submit to a visual inspection of their body cavities in a public setting in front of fellow inmates and other deputies) and are later allowed to dress back into jail clothing. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as “strip searches.” 25. The aforementioned CC, and the Policy Making Defendant know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches unreasonably.
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26. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale unreasonable strip searches has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
27. Upon information and belief, the aforementioned CC and Policy Making Defendant have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of public, mass strip-searching all in the custody of CCJ in an unreasonable fashion.
28. Pursuant to this written and/or de facto policy, each member of the Classes, including the named Plaintiffs, were the victims of a routine strip group and public strip searches.
29. This policy, custom or practices of group strip searches are in violation of the ABA Standard 23-7.9 Searches of prisoners’ bodies and OAR 291-041-0020 Inmates to wit: ABA Standard 23-7.9 (a) In conducting a search of a prisoner’s body, correctional authorities should strive to
preserve the privacy and dignity of the prisoner. Correctional authorities should use the least intrusive appropriate means to search a prisoner. Searches of prisoners’ bodies should follow a written protocol that implements this Standard. (b) Except in exigent situations, a search of a prisoner’s body, including a pat-down search or a visual search of the prisoner’s private bodily areas, should be conducted by (d) Visual searches of a prisoner’s private bodily areas, whether or not inspection includes the prisoner’s body cavities, should: (i) be conducted only by trained personnel in a private place out of the sight of other prisoners and of staff not involved in the search, (emphasis added) except that a prisoner should be permitted to request that more than one staff member be present; and The relevant OAR states in part:
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291-041-0010 Definitions (c) Skin: A search procedure wherein the person being searched removes all of his/her
clothing and is visually examined and clothing removed is carefully inspected before return and redressing, for the purpose of detecting contraband. 291-041-0020 Inmates (7) Skin Searches: Skin searches conducted by DOC staff will be of the same gender as the inmate, unless there is an emergency. Except in emergencies, inmates undergoing skin searches will be removed to a private area for the search. (Emphasis added)
30. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches – each member of the class, including the named Plaintiff(s) – have suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Plaintiff Scott Graue 31. Scott Graue's experiences are representative of the class at large. On a daily basis, seven days a week from on or about May 19, 2012 until the present CC searched inmates randomly , after hearings and on a routine schedule. Mr. Graue and others sustained multiple public strip searches, and on October 10, 2012 Graue sustained a mass public strip search in open areas of the CCJ likely exceeding 160 inmates, and deputies strip searched him and others in a group and public fashion. A tort claim notice from Graue timely issued on January 21, 2013.
32. As Corrections Officers watched, Mr. Graue and others removed all of their clothing, including underpants.
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33. A Corrections Officer inspected Mr. Graue from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. (Women have to lift breasts ).
34. As a direct and proximate result of the unlawful strip search conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Plaintiff David Hodges 35. David Hodges' experiences are representative of the class at large. On a daily basis, seven days a week from on or about May 19, 2012 until the present CC searched inmates randomly , after hearings and on a routine schedule, and Mr. Hodges and others sustained multiple public strip searches, and on October 10, 2012 Hodges sustained a mass public strip in open areas of the CCJ likely exceeding 160 inmates, and deputies strip searched him and others in a group and public fashion.
36. As Corrections Officers watched, Mr. Hodges and others removed all of their clothing, including underpants.
37. A Corrections Officer inspected Mr. Hodges from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. (Women have to lift breasts ).
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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 13 of 20
Facts Applicable to the Plaintiff William Dillon 38. William Dillon's experiences are representative of the class at large. Mr. Dillon suffered group strip searches on multiple occasions in 2013 including but not limited to on or about February 15, 2013 and February 19, 2013, after court dates. 39. As Corrections Officers watched, Mr. Dillon and others removed all of their clothing, including underpants. 40. A Corrections Officer inspected Mr. Dillon from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. (Women have to lift breasts ). 41. As a direct and proximate result of the unlawful strip search conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement County Policies to Avoid
Constitutional Deprivations Under of Color of State Law -42. Plaintiff(s) incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 41. 43. The Fourth Amendment of the United States Constitution protects citizens and pre-trial detainees from unreasonable searches by law enforcement officers, and prohibits deputies from conducting strip searches of individuals absent some particularized suspicion and in a group and in a public and demeaning fashion.
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44. The Eighth Amendment of the United States Constitution prohibits state and county officials, such as the Policy Making Defendants in this action and the Corrections Officers they supervise, from performing strip searches in an unreasonable fashion on sentenced inmates, as an example of cruel and unusual punishment.
45. The actions of Defendants detailed above violated Plaintiffs' rights under the United States Constitution. Simply put, it was not objectively reasonable for CC Officers to strip search Plaintiff (s) and class members absent probable cause and in a public and group setting. It was also not objectively reasonable for the Policy Making Defendants to order/direct County Corrections Officers to conduct such searches.
46. These strip searches were conducted pursuant to the policy, custom or practice of the County and the County’s Department. As such, the County is directly liable for the damages of the named Plaintiff(s) and members of the Class(es).
47. Upon information and belief, the aforementioned Sheriff Roberts is responsible for establishing the policies, customs, practices, and procedures to be utilized in the operation of their facilities, and is responsible for the implementation of the strip search policy questioned in this lawsuit and/or ratified the policy. As such, each named individual is individually responsible for the damages of the named Plaintiff(s) and members of the Class.
48. Named individuals knew that the 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.
49. 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.
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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 15 of 20 50. As a direct and proximate result of the unconstitutional acts described above,
Plaintiff(s) and members of the proposed class have been irreparably injured. 51. Defendant Roberts is the Clackamas County Sheriff , and final decision-maker
with respect to the treatment of pre-trial and sentenced detainees and inmates over which the CC exercises custodial or other control. He is made a defendant in this action in both his individual and official capacities. Mr. Roberts is referred to as the “Policy Making Defendant.”
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AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
52. Plaintiff(s) incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 51.
53. The policy, custom and practice of the County Departments, the County and the Policy Making Defendants are clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals on kitchen duty in CC custody without any particularized suspicion that the individuals in question have either contraband or weapons, and the searches are unconstitutional in their scope, manner and duration.
54. Plaintiff(s) and members of the Class(es) request that this Court issue a declaratory judgment, and that it declare the strip search policies of the County and the County Departments to be unconstitutional.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
55. Plaintiff incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 54.
56. The policy, custom and practice of the County Departments, the County and the Policy Making Defendants are clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches CC custody in a group and public setting and absent any particularized suspicion that the individuals in question have either contraband or weapons.
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Case 3:14-cv-00820-YY Document 1 Filed 05/18/14 Page 17 of 20 57. Upon information and belief, this policy is currently in place at the CC
facilities, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiff(s).
58. The continuing pattern of strip searching individuals in group and public settings will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
59. Plaintiffs demand that the County, the County Departments, the Policy Making Defendants and County Corrections Officers immediately desist from strip searching individuals placed into their custody whether pre-trial or sentenced, in group and puvlic settings and also 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.
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DEMAND FOR PUNITIVE DAMAGES 60. The actions of the Individual Defendants detailed herein are outrageous, in that they continue to propagate an illegal strip search policy even though they know for a fact that their actions are unconstitutional. 61. It is clear that the Policy Making Defendant Roberts, the County and the County Departments and all other named defendant counties have no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish the Policy Making Defendants, and to send a message to them that the requirements of the United States Constitution also apply to government officials in all named counties.
DEMAND FOR TRIAL BY JURY 62. The Plaintiff(s) hereby demand trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs William Dillon, Scott Graue, David Hodges individually and on behalf of a class of others similarly situated, request that this Honorable Court grants them the following relief: A. An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23. B. A judgment against all Defendants, jointly and severally on Plaintiffs’ First
Cause of Action detailed herein, awarding Compensatory Damages to each named Plaintiff and each member of the proposed class in an amount to be
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determined by a Jury and/or the Court on both an individual and a class wide basis. C. A judgment against each individual Defendant on Plaintiffs’ First Cause of Action for $1,000,000.00 in punitive damages for each. D. A declaratory judgment against all Defendants declaring the aforementioned Counties and County Departments’ policies, practices and customs of group and public strip and visual cavity searching, regardless of suspicion of contraband, to be unconstitutional and improper. E. A preliminary and permanent injunction enjoining Defendants from continuing to strip and visual cavity search individuals in group and public fashion all in custody absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband. F. A monetary award for attorney’s fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23

Dated: May 18, 2014

Respectfully submitted by:
S//S Leonard R. Berman ___________________________ Leonard R. Berman, OSB # 96040 ATTORNEY FOR PLAINTIFF(S) AND THE PROPOSED CLASS

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 Case 3:14-cv-00820-YY Document 31 Filed 05/04/15 Page 1 of 19

Leonard R. Berman, OSB # 96040 4711 SW Huber St., Suite E-3 Portland, OR 97219 (503) 473-8787 Easyrabbi@yahoo.com

BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
Tonna K. Farrar, OSB #120072 2325 East Camelback Road, Suite 300 Phoenix, Arizona 85016 Telephone: (503) 487-6352 – Oregon (602) 274-1100 – Phoenix Facsimile: (602) 274-1199 tfarrar@bffb.com

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Portland Division

WILLIAM DILLON, SCOTT GRAUE,

Case No. 3:14-CV-820

DAVID HODGES, ALBERT LOVE AND

JAYSON SAYLOR individually, and on behalf

of a class of others similarly situated,

CLASS ACTION SECOND AMENDED

COMPLAINT

Plaintiffs,

vs.

JURY TRIAL DEMANDED

CLACKAMAS COUNTY AND CRAIG ROBERTS, both individually and in his official capacity as Sheriff,
Defendants.

INTRODUCTION

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

to the Plaintiffs William Dillon, Scott Graue, David Hodges, Albert Love, Jayson Saylor

(hereinafter collectively referred to as “Plaintiffs”) and the proposed Class Members by the laws

of the United States of America including the Fourth, Eighth and Fourteenth Amendments.

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Plaintiffs individually, and on behalf of the proposed class, by and through counsel, hereby complain as follows:
GENERAL ALLEGATIONS 1. For at least the past two years, Clackamas County (hereinafter, “CC”) has an unconstitutional policy, custom and practice of strip-searching pre-trial detainees and convicted inmates in public and group settings in view of closed circuit cameras in violation of minimal penal standards and codes of conduct as exemplified by ABA Standard 23-7.9 [Searches of prisoners’ bodies] and OAR 291-041-0020 [Inmates (infra)] for random searches, after court hearings, and during routine searches as well as one mass search of 160 inmates on or about October 10, 2012. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as “strip searches.” 2. No pat-downs occur. Other corrections facilities do pat-down searches and only conduct strip searches when reasonable suspicion arises from a pat-down and on a private, individual basis. 3. The complained-of group and public strip searches have been conducted in the hallways and open areas in the Clackamas County Jail (hereinafter “CCJ”) on a daily basis since May 21, 2012. 4. On or about October 10, 2012, several dozen inmates (believed to be up to 160 or more) were pulled out of their cells in pairs by deputies in camouflage commando gear and publicly strip searched on a mass basis. 5. Upon information and belief, this afore-described strip search custom, practice and policy derived from the custom, practices and/or written policies of the aforementioned
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County Departments, and was promulgated by senior Department officials including Defendant

Sheriff Craig Roberts.

6. Defendants have instituted a written policy, custom or practice of strip searching

all individuals in public and group settings in the custody of CC (by forcing them to remove their

clothing for a visual inspection of their bodies and/or forcing them to submit to a visual

inspection of their body cavities in a public setting in front of fellow inmates and other deputies)

and are later allowed to dress back into jail clothing. These written policies include but are not

limited to the following:

25.47.4 C

Searches are done on a “routine and random basis.”

25.47.4 2D (2)(b) Unclothed Searches, are to be viewed by:

1. staff members conducting search

2. staff members working in the area

3. other inmates being searched at the same time.

7. The policies, customs and practices of the Defendants as described herein are

clearly unconstitutional, in that these entities and individuals are directing/conducting the strip

searches of all individuals in public and group settings in CC custody and/or without any

particularized suspicion that the individuals in question have either contraband or weapons, and

the searches are unconstitutional in their scope, manner and duration in violation of the United

States Constitution.

8. Upon information and belief, this policy is currently in place at the CCJ, with new

and/or prospective members of the Class being subjected to the harms that have already been

inflicted upon the named Plaintiff(s).

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9. The continuing policy, practice and custom of strip searching individuals in group and public settings will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
JURISDICTION AND VENUE 10. 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 Constitution and federal law pursuant to 42 U.S.C. § 1983. This Court additionally has supplemental jurisdiction over the state law claim(s) asserted herein under 28 U.S.C. §1367. 11. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES 12. Plaintiffs Graue, Dillon and Hodges reside in jail custody in Oregon. 13. Plaintiff Saylor lives in Clackamas County out of jail custody. 14. Plaintiff Love lives in Multnomah County out of jail custody. 15. The proposed class members currently reside either in jail custody in Clackamas County, Oregon and in other counties, or out of jail custody. 16. Defendant CC is a county government organized and existing under the laws of the State of Oregon. At all times relevant hereto, CC, acting through its Corrections Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the CCJ and was responsible for the appointment, training, supervision and conduct of all Department personnel. In addition, at all relevant times, CC was responsible for
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enforcing the rules of the CCJ, and for ensuring the personnel employed in the CCJ followed the Constitution and laws of the United States and of the State of Oregon.
17. Defendant Craig Roberts is the Sheriff and final decision-maker and policy makers with respect to the treatment of pre-trial and other detainees over which the CC exercises custodial or other control.
18. From time to time, individuals (including certain named Plaintiffs and/or proposed class members) residing in jail custody in Oregon are transferred from one county jail to another, including CCJ.
CLASS ACTION ALLEGATIONS 19. Plaintiff bring this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals who were strip searched in public and group settings in the CCJ. 20. The three classes that Plaintiffs seek to represent are defined as follows:
CLASS ONE – UNLAWFUL GROUP STRIP SEARCHES COMPENSATORY DAMAGES CLASS1
All persons (including pre-trial detainees and convicted inmates) who were or currently are in the custody of the CCJ regardless of charges, who have been or will be searched while unclothed in a group and public setting in open areas involving one or more deputy who:
A. Inspects the individual from top to bottom; B. Inspects his hair, ears, mouth, hands, armpits, feet, between toes,
nostrils; C. Inspects a woman’s breasts or tells a man to separate his penis and
testicles; D. Inspects beneath the foreskin of an uncircumcised male; E. Requires the individual to bend and spread buttocks;
1 All named Plaintiffs are proposed Class Representatives for Class One.
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F. Requires the individual to face a wall so staff can inspect the back of the body;
The class period commences on September 25, 2012 and extends to May 4, 2015. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
CLASS TWO – OCTOBER 10, 2012 STRIP SEARCH COMPENSATORY DAMAGES CLASS2
All persons (including pre-trial detainees and convicted inmates) who were or currently are in the custody of the CCJ regardless of charges, who were searched while unclothed in a group and public setting in open areas involving one or more deputy who:
A. Inspects the individual from top to bottom;
B. Inspects his hair, ears, mouth, hands, armpits, feet, between toes, nostrils;
C. Inspects a woman’s breasts or tells a man to separate his penis and testicles;
D. Inspects beneath the foreskin of an uncircumcised male;
E. Requires the individual to bend and spread buttocks;
F. Requires the individual to face a wall so staff can inspect the back of the body;
The class period pertains to a one-time public search of at least 160 inmates on or about October 10, 2012. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
CLASS THREE – UNLAWFUL GROUP STRIP SEARCHES INJUNCTIVE RELIEF CLASS3
All persons (including pre-trial detainees and convicted inmates) who are or will be placed into the custody of the CCJ regardless of charges, who have been or will be searched while unclothed in a group and public setting in open areas involving one or more deputy who:
A. Inspects the individual from top to bottom;
2 All named Plaintiffs are proposed Class Representatives for Class Two. 3 Plaintiffs Graue, Dillon and Hodges are proposed Class Representatives for Class Three.
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B. Inspects his hair, ears, mouth, hands, armpits, feet, between toes, nostrils;
C. Inspects a woman’s breasts or tells a man to separate his penis and testicles;
D. Inspects beneath the foreskin of an uncircumcised male; E. Requires the individual to bend and spread buttocks; F. Requires the individual to face a wall so staff can inspect the back
of the body; The class period commences on September 25, 2012 and extends to the date on which CC is either enjoined from its policy, practice and custom of unlawful strip searches or ceases to conduct its policy, practice and custom of unlawful strip searches. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 21. 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). 22. The members of the class are so numerous as to render joinder impracticable. Upon information and belief, there are hundreds, if not thousands, of people arrested who are placed into the custody of CC every month – all of whom are members of the proposed class. Upon information and belief, the size of the proposed class totals at least 2,000 individuals. 23. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of class members and the fact that class members are likely dispersed over a large geographical area, with some members presently residing outside of the 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.
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24. 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 in an unreasonable fashion. All members of the class were placed into the custody of their CCJ facilities, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
25. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiff and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the class members.
26. The representative Plaintiff (s) have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.
27. Plaintiffs have retained counsel who have substantial experience and success in the prosecution of civil rights litigation and class action litigation.
28. Counsel for Plaintiffs know of no conflicts among members of the class, or between counsel and members of the class.
29. 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 placed into the custody of CC. In short, the aforementioned County Departments, the Policy Making Defendants and County Corrections Officers acted on grounds generally applicable to all class members.
30. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiff (s) seek certification under Rule 23(b)(3).
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31. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants’ written and/or de facto policy/practice of strip searching in an unreasonable fashion, all individuals committed to the CCJ is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
32. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
33. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for the past several years.
34. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff(s) also seek partial certification under Fed. R. Civ. P. 23(c)(4).
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FACTS Facts Applicable to the Class Generally 35. The Fourth Amendment of the United States Constitution, by means of the substantive due process clause of the Fourteenth Amendment, prohibits state and county officials, such as the Defendants in this action and the Corrections Officers they employ and supervise, from performing strip searches in an unreasonable fashion on pre-trial detainees in a random and/or routine fashion. 36. The Eighth Amendment of the United States Constitution, by means of the substantive due process clause of the Fourteenth Amendment, prohibits state and county officials, such as the Defendants in this action and the Corrections Officers they employ supervise, from performing strip searches in an unreasonable fashion on sentenced inmates, in a random and/or routine fashion, as an example of cruel and unusual punishment. 37. Defendants know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches unreasonably or in violation of the Constitution. 38. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale unreasonable strip searches has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law. 39. Upon information and belief, Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of public, mass strip-searching all in the custody of CCJ in an unreasonable fashion. 40. Pursuant to this written and/or de facto policy, each member of the Classes, including the named Plaintiffs, were the victims of routine group and public strip searches.
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41. This policy, custom or practices of group strip searches blatantly violate the
Constitution and the minimal penal standards and codes as exemplified by ABA Standard 23-7.9
Searches of prisoners’ bodies and OAR 291-041-0020 Inmates to wit:
ABA Standard 23-7.9
(a) In conducting a search of a prisoner’s body, correctional authorities should strive to preserve the privacy and dignity of the prisoner. Correctional authorities should use the least intrusive appropriate means to search a prisoner. Searches of prisoners’ bodies should follow a written protocol that implements this Standard. (b) Except in exigent situations, a search of a prisoner’s body, including a patdown search or a visual search of the prisoner’s private bodily areas, should be conducted by correctional staff of the same gender as the prisoner. … (d) Visual searches of a prisoner’s private bodily areas, whether or not inspection includes the prisoner’s body cavities, should:
(i) be conducted only by trained personnel in a private place out of the sight of other prisoners and of staff not involved in the search, (emphasis added) except that a prisoner should be permitted to request that more than one staff member be present….
The relevant OAR states in part:
291-041-0010 Definitions (c) Skin: A search procedure wherein the person being searched removes all of his/her clothing and is visually examined and clothing removed is carefully inspected before return and redressing, for the purpose of detecting contraband.
291-041-0020 Inmates
(7) Skin Searches: Skin searches conducted by DOC staff will be of the same gender as the inmate, unless there is an emergency. Except in emergencies, inmates undergoing skin searches will be removed to a private area for the search. (Emphasis added)
42. As a direct and proximate result of the unlawful strip searches conducted pursuant
to this written and/or de facto policy, the victims of the unlawful strip searches – each member of
the class, including the named Plaintiff(s) – have suffered or will suffer psychological pain,
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humiliation, suffering and mental anguish and in the alternative, are also entitled to nominal compensatory damages.
Facts Applicable to the Plaintiff Scott Graue 43. Graue's experiences are representative of the class at large. On a daily basis, seven days a week from on or about May 19, 2012 until the present CC searched inmates randomly, after hearings and on a routine schedule. Graue and others sustained multiple public strip searches while housed at CCJ, and on October 10, 2012 Graue sustained a mass public strip search in open areas of the CCJ likely exceeding 160 inmates when deputies strip searched him and others in a group and public fashion. 44. As Corrections Officers watched, Graue and others removed all of their clothing, including underpants. 45. A Corrections Officer inspected Graue from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. 46. As a direct and proximate result of the unlawful strip searches conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer damages. 47. A tort claim notice from Graue including twenty-three other inmates (including Saylor, Hodges and Love) timely issued on January 21, 2013.
Facts Applicable to the Plaintiff David Hodges 48. Hodges' experiences are representative of the class at large. On a daily basis, seven days a week from on or about May 19, 2012 until the present, CC searched inmates randomly, after hearings and on a routine schedule, and Hodges and others sustained multiple public strip searches. On October 10, 2012, Hodges sustained a mass public strip search in open
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areas of the CCJ likely exceeding 160 inmates when deputies strip searched him and others in a group and public fashion.
49. As Corrections Officers watched, Hodges and others removed all of their clothing, including underpants.
50. A Corrections Officer inspected Hodges from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles.
51. As a direct and proximate result of the unlawful strip searches conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer damages.
52. A tort claim notice from Graue including twenty-three other inmates (including Saylor, Hodges and Love) timely issued on January 21, 2013.
Facts Applicable to the Plaintiff William Dillon 53. Dillon's experiences are representative of the class at large. Dillon suffered group strip searches on multiple occasions in 2013 at CCJ including but not limited to on or about February 15, 2013 and February 19, 2013, after court dates. 54. As Corrections Officers watched, Dillon and others removed all of their clothing, including underpants. 55. A Corrections Officer inspected Dillon from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. 56. As a direct and proximate result of the unlawful strip searches conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer damages.
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Facts Applicable to the Plaintiff Albert Love 57. Love's experiences are representative of the class at large. Love suffered group strip searches on multiple occasions in 2012 including but not limited to one or about October 10, 2012 and after court hearings September 25, 2012 and sentencing October 10, 2012, in a group and public setting in the “dressing room” with up to sixteen other detainees. 58. Love and others sustained multiple public strip searches, and on October 10, 2012 Love sustained a mass public strip search in open areas of the CCJ likely exceeding 160 inmates when deputies strip searched him and others in a group and public fashion. 59. As Corrections Officers watched, Love and others removed all of their clothing, including underpants. 60. A Corrections Officer inspected Love from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles. 61. As a direct and proximate result of the unlawful strip searches conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer damages. 62. A tort claim notice from Graue including twenty-three other inmates (including Saylor, Hodges and Love) timely issued on January 21, 2013.
Facts Applicable to the Plaintiff Jayson Saylor 63. Saylor's experiences are representative of the class at large. Saylor suffered group strip searches on multiple occasions in 2012 including but not limited to one or about October 10, 2012 and after court hearings September 27 and 28th, 2012, and after sentencing November 16, 2012, in a group and public setting in the “dressing room” with up to sixteen other detainees.
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64. Saylor and others sustained multiple public strip searches, and on October 10, 2012 Saylor sustained a mass public strip search in open areas of the CCJ likely exceeding 160 inmates when deputies strip searched him and others in a group and public fashion.
65. As Corrections Officers watched, Saylor and others removed all of their clothing, including underpants.
66. A Corrections Officer inspected Saylor from top to bottom while naked. The deputy then instructed him to bend over and spread his buttocks, lift and separate the penis and testicles.
67. As a direct and proximate result of the unlawful strip searches conducted pursuant to CC policy, practice and custom, he has suffered and continues to suffer damages.
68. A tort claim notice from Graue including twenty-three other inmates (including Saylor, Hodges and Love) timely issued on January 21, 2013.
COUNTS COUNT I Violation of Constitutional Rights Under Color of State Law-- Unreasonable Search and Failure to Implement County Policies to Avoid Constitutional Deprivations Under of Color of State Law -69. Plaintiff(s) incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 68. 70. The Fourth Amendment of the United States Constitution, by means of the substantive due process clause of the Fourteenth Amendment, prohibits state and county officials, such as the Defendants in this action and the Corrections Officers they employ and supervise, from performing strip searches in an unreasonable fashion on pre-trial detainees in a random and/or routine fashion.
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71. The Eighth Amendment of the United States Constitution, by means of the substantive due process clause of the Fourteenth Amendment, prohibits state and county officials, such as the Defendants in this action and the Corrections Officers they employ and supervise, from performing strip searches in an unreasonable fashion on sentenced inmates, in a random and/or routine fashion, as an example of cruel and unusual punishment.
72. The actions of Defendants detailed above violated Plaintiffs' rights under the United States Constitution. Simply put, it was not objectively reasonable for CC Officers to strip search Plaintiff (s) and class members absent probable cause and in a public and group setting. It was also not objectively reasonable for the Defendants to order/direct County Corrections Officers to conduct such searches.
73. These strip searches were conducted pursuant to the policy, custom or practice of the County and the County’s Department. As such, the County is directly liable for the damages of the named Plaintiff(s) and members of the Class(es).
74. Upon information and belief, the aforementioned Sheriff Roberts is responsible for establishing the policies, customs, practices, and procedures to be utilized in the operation of their facilities, and is responsible for the implementation of the strip search policy questioned in this lawsuit and/or ratified the policy. As such, each named individual is individually responsible for the damages of the named Plaintiff(s) and members of the Class.
75. Defendants knew that the 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.
76. 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.
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COUNT II Violation of State Law Rights Under Oregon Tort Claims Act – Invasion of Personal
Privacy
77. Plaintiff(s) incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 76.
78. In violation of ORS §30.865, Defendants knowingly made or recorded a photograph(s), motion picture(s), videotape(s) or other visual recording(s) of Plaintiffs and the Class in a state of nudity during the group and public strip searches without the consent of Plaintiffs or the Class, and at the time the visual recording was made or recorded the plaintiff was in a place and circumstances where the plaintiff had a reasonable expectation of personal privacy.
79. Plaintiffs and the Class had a reasonable expectation of personal privacy in not being subjected to unlawful group and public strip searches open to public view of other inmates and/or CC employees.
80. Plaintiffs and the Class suffered damages as a result of Defendants’ invasion of their personal privacy and are therefore entitled to compensatory damages and reasonable attorneys fees.
81. As more fully described above, Defendants were provided with requisite and timely notice under the Oregon Tort Claims Act pursuant to ORS § 30.275.
DEMAND FOR PUNITIVE DAMAGES 82. Plaintiff(s) incorporate by reference and realleges each and every allegation stated in paragraphs 1 through 81.
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83. Sheriff Roberts continues to propagate an illegal strip search policy, custom and practice with complete indifference to the Plaintiffs’ and Class Members’ rights even though he knows for a fact that his actions are unconstitutional.
84. Sheriff Roberts’ development and propagation of an illegal strip search policy, custom and practice is oppressive because it violates the rights of Plaintiffs and the Class Members with unnecessary harshness or severity.
85. It is clear that Sheriff Roberts has no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish Sheriff Roberts, and to send a message to him that the requirements of the United States Constitution also apply to government officials in all named counties.
DEMAND FOR TRIAL BY JURY 86. The Plaintiff(s) hereby demand trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs William Dillon, Scott Graue, David Hodges, Jayson Saylor, Albert Love individually and on behalf of a class of others similarly situated, request that this Honorable Court grant them the following relief: A. An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23. B. A judgment against all Defendants, jointly and severally, awarding Compensatory
Damages to each named Plaintiff and each member of the proposed class in an amount to be determined by a Jury and/or the Court on both an individual and a class wide basis. C. A judgment against Sheriff Roberts in his individual capacity for no less than $1,000,000.00 in punitive damages.
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D. A declaratory judgment against all Defendants under the provisions of 28 U.S.C.

§2201 that the strip search policies, practices and customs of the County and the

County Departments are unconstitutional.

E. A preliminary and permanent injunction enjoining Defendants from continuing to

strip and visual cavity search pre-trial detainees and convicted inmates in group

and public fashion without adequate privacy.

F. A preliminary and permanent injunction enjoining Defendants from continuing to

strip and visual cavity search pre-trial detainees and convicted inmates absent

particularized, reasonable suspicion that the arrestee subjected to the search is

concealing weapons or other contraband.

G. A monetary award for attorney’s fees and the costs of this action, pursuant to 42

U.S.C. § 1988 and ORS §30.865.

Dated: May 4, 2015.

BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.

By: s/Tonna K. Farrar Tonna K. Farrar, OSB No. 120072 2325 East Camelback Road, Suite 300 Phoenix, Arizona 85016 Telephone: (503) 487-6352 – Oregon (602) 274-1100 – Phoenix tfarrar@bffb.com
Leonard R. Berman 4711 SW Huber St., Suite E-3 Portland, OR 97219 (503) 473-8787 OSB # 96040 Easyrabbi@yahoo.com Attorneys for Plaintiffs

19 SECOND AMENDED COMPLAINT

 
 Case 3:14-cv-00820-YY Document 160 Filed 07/23/18 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

WILLIAM DILLON; SCOTT GRAUE; DAVID HODGES; ALBERT LOVE; and JAYSON SAYLOR, individually, and on behalf of a class of others similarly situated,,

Case No. 3:14-cv-820-YY ORDER

Plaintiffs,

v.

CLACKAMAS COUNTY and CRAIG ROBERTS, both individually and in his official capacity as Sheriff,,

Defendants.

Michael H. Simon, District Judge.

United States Magistrate Judge Youlee You issued Findings and Recommendation in this

case on May 2, 2018. ECF 148. Plaintiffs, former inmates at Clackamas County Jail (“CCJ”),

bring this class action against Defendants for alleged violations of Plaintiffs’ state statutory and

federal constitutional rights arising from group strip searches at CCJ. Judge You recommended

that (1) Defendants’ motion to dismiss for lack of jurisdiction be denied; (2) Defendants’ motion

for summary judgment be granted in part and denied in part; (3) Plaintiffs’ motion to certify the

PAGE 1 – ORDER

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class be granted in part and denied in part; and (4) Plaintiffs’ motion for partial summary judgment be denied.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
Plaintiffs timely filed an objection (ECF 150) to which Defendants responded, ECF 155. Plaintiffs object to the portions of Judge You’s recommendation finding that (1) Plaintiffs had not presented a genuine question of material fact as to whether the October 10, 2012 emergency shakedown search was exaggerated or excessive; and (2) the record was insufficient to determine whether the daily return-from-court searches were unreasonable under the Fourth Amendment. Defendants also timely filed an objection (ECF 154) to which Plaintiffs responded, ECF 159. Defendants object to Judge You’s recommendations that (1) the Court should certify the class of plaintiffs whose claims are predicated on the daily return-from-court searches; (2) the Court should deny Defendants’ motion for summary judgment as to the claim that the return-fromcourt searches violate the Fourth Amendment; and (3) the Court should deny Defendants’ motion for summary judgment as to Plaintiffs’ claims for a violation of Or. Rev. Stat. (“ORS”) § 30.865. A. Plaintiffs’ and Defendants’ Objections to Findings on Motions for Summary Judgment
1. October 12, 2010 Emergency Shakedown Plaintiffs object to Judge You’s finding that there was no genuine question of material fact that the October 12, 2010 emergency shakedown search was unreasonable. As Judge You correctly noted, the test for whether a visual strip search of an incarcerated person violates the Fourth Amendment requires consideration of “the scope of the particular intrusion, the manner in PAGE 2 – ORDER

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which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (emphasis in original). When there is a possibility that a prisoner has access to a weapon, strip searches have a legitimate penological purpose, and Plaintiffs bear “the burden of showing that [prison] officials intentionally used exaggerated or excessive means to enforce security . . .” Michenfelder v. Sumner, 860 F.2d 328, 332-333 (9th Cir. 1988). Judge You found that Plaintiffs failed to counter Defendants’ evidence that the emergency search was conducted because a possible weapon, in the form of a piece of metal, was unaccounted for. Judge You also found that Plaintiffs presented no evidence that Defendants’ response to the discovery of the missing metal was exaggerated or excessive. Plaintiffs now argue only that the video evidence showing portions of the emergency search do not show that the search was reasonable and that alternative, more private locations were available. Given the justification for the search, the proffered video evidence—which Judge You also considered, and which shows inmates stripping in groups of up to six in front of their cells— does not raise a reasonable inference that the place, manner or scope of the search was unreasonable, or that the prison officials’ response was exaggerated or excessive.
2. Routine Return-From-Court Strip Searches Both Plaintiffs and Defendants object to Judge You’s finding that, based on the record, it was impossible to determine whether the daily return-from-court visual strip searches were unreasonable under the Fourth Amendment, and her recommendation that the Court deny both motions for summary judgment on this claim. Judge You concluded that, although there was no indication that Defendants had considered measures to restrict the viewing of naked inmates by third parties, Plaintiffs had also not presented evidence of “exactly what could be seen on the CCTV monitors and by whom, how frequently female third parties could and did view them naked, and the like.” For this reason, she recommended denial of both Plaintiffs’ and PAGE 3 – ORDER

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Defendants’ motions for summary judgment on Plaintiffs’ Fourth Amendment claim based on these searches.
Plaintiffs’ objections to this finding are difficult to parse. Plaintiffs appear to argue that the record was sufficient to justify summary judgment for Plaintiffs because (1) Defendants’ strip search practices were inconsistent with their own regulations; and (2) it is uncontested that the opportunity existed for staff members not involved in the searches to observe naked inmates. Local laws and regulations may create privacy requirements for strip searches that are more demanding than those imposed by the Constitution. That an agency fails to follow its own standards, therefore, does not render its actions unconstitutional as a matter of law. Similarly, that the privacy panels allowed for the opportunity for staff members not involved in searches to observe the inmates does not render the search practices unconstitutional as a matter of law. The reasonableness test articulated in Bell and Michenfelder is a highly fact-specific inquiry. Judge You correctly concluded that a further showing regarding to whom and how often the naked inmates were actually exposed to third parties is necessary to demonstrate that the scope, manner, justification and place of the search practices were so unreasonable as to violate the Fourth Amendment.
Defendants’ objections largely reiterate their argument in briefing before Judge You on their motion for summary judgment. Defendants argue that they must be granted summary judgment under Bell because that case held that searches similar to the routine strip searches challenged in this case were constitutional. Defendants’ argument is focused almost entirely on the justification for such routine strip searches. Under Bell, although strip searches may be justified without probable cause, they must nevertheless be conducted in a reasonable manner. 441 U.S. at 560. The decision in Bell did not contemplate whether strip searches conducted in the
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manner described in this case are reasonable, but rather addressed the narrow issue of “whether visual body-cavity inspections . . . can ever be conducted on less than probable cause.” Bell, 441 U.S. at 560. The justification for the searches is not contested here. Rather, Plaintiffs challenge the allegedly unreasonable circumstances of the searches—specifically, that they were exposed to CCTV cameras and female inmates after fully disrobing and presenting their intimate sexual areas and bodily orifices for detailed visual inspection.
The Ninth Circuit has previously held that, depending on the frequency, regularity, and proximity, cross-gender observation of strip searches may be unconstitutional. See, e.g., Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919 (9th Cir. 2017) (holding that male pretrial detainees had stated a claim for a Fourth Amendment violation where they alleged frequent and up-close cross-gender observation of their showering and toilet use); cf. Michenfelder, 860 F.2d at 334 (holding that strip searches were not unconstitutional specifically because female guards were “not routinely present for strip searches” and observation from video monitors was largely obstructed). Given the evidence that Plaintiffs were exposed to female inmates and CCTV cameras while undergoing strip searches and the lack of evidence of exigent circumstances or efforts on behalf of the Defendants to restrict the viewing of naked inmates by third parties, Judge You correctly denied Defendants’ motion for summary judgment.
3. ORS § 30.865 Defendants object to Judge You’s finding that Plaintiffs’ claim for invasion of privacy in violation of ORS § 30.865, which was alleged for the first time in Plaintiffs’ second amended complaint, relates back to Plaintiffs’ original complaint and is thus not barred by the statute of limitation. The Court agrees with Judge You that conduct giving rise to Plaintiffs’ statutory claim arises from the exact same conduct alleged in Plaintiffs’ original complaint. Plaintiffs’
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statutory claim therefore relates back to the filing date of Plaintiffs’ original complaint and is not time-barred. B. Defendants’ Objections to Findings on Motion for Class Certification
Defendants first argue that “not one of the Plaintiffs qualifies as a class representative” for Class One, defined to include those who underwent return-from-court strip searches between September 25, 2012 and May 4, 2013. Defendants argue that Plaintiff Love cannot be a class representative because by the time he was added as a named Plaintiff in the Second Amended Complaint, his claim was time-barred. Plaintiffs Dillon, Graue, and Hodges, Defendants argue, also cannot be class representatives because the PLRA strips the Court of subject matter jurisdiction over their claims.
“The filing of a class action tolls the statute of limitations as to all asserted members of the class” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983). Similarly, when a new class representative is named in an amended complaint, that class representative’s claim typically “relates back” to the filing date of the original class action complaint. See, e.g., Philips v. Ford Motor Co., 435 F.3d 785, 788 (7th Cir. 2006) (“Relation back to add named plaintiffs in a class action suit is of particular importance because of the interests of the unnamed members of the class.”). Plaintiffs’ original complaint, which named Dillon, Graue, and Hodges, but not Love, was styled as a putative class action and sought to represent a class of plaintiffs who Defendants had subjected to routine, invasive, and public group strip searches. When the original complaint was filed, Plaintiff Love was an unnamed member of that class. Plaintiff Love’s claim is thus timely both because his claim relates back to the original filing date, and because the statute of limitations for his claim was tolled as of that filing date.
Plaintiffs Dillon, Graue, and Hodges are also adequate class representatives. Defendants’ challenge to these Plaintiffs’ status as class representatives essentially echoes their argument PAGE 6 – ORDER

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before Judge You that the PLRA’s “physical injury” requirement, 42 U.S.C. § 1997e(e), strips this Court of subject matter jurisdiction over their complaint because they allege only emotional and mental injuries. The Court has reviewed Judge You’s findings and agrees with her reasoning and conclusions. Plaintiffs seek damages premised on the violation of their Fourth Amendment rights—not merely for mental and emotional injury—and the Ninth Circuit has held that constitutional claims for “compensatory, nominal or punitive damages . . . are not barred by § 1997(e)(e).” Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002). Defendants’ attempts to distinguish Oliver are unpersuasive.
Defendants also object that Plaintiffs have offered “no proof” that the class is sufficiently numerous to warrant a class action. Judge You’s analysis in estimating the likely size of the class, however, was appropriate. Even when basing her analysis on estimated numbers that were so conservative as to be highly unlikely, Judge You concluded that Class One contains at least 160 plaintiffs—far more than is necessary to satisfy the numerosity requirement. Finally, Defendants argue that Plaintiffs have not shown that Class One satisfies the predominance requirement of Rule 23(b)(3) because individual damages calculations will “overwhelm” the questions of fact that are common to the class. The Court has reviewed Judge You’s findings and agrees with her conclusions and analysis. The class members were subjected to substantively identical treatment and individual damages calculations are thus unlikely to be burdensome or even necessary.
The Court ADOPTS Judge You’s Findings and Recommendation, ECF 148.1 Defendants’ Motion to Dismiss for Lack of Jurisdiction (ECF 127) is DENIED; Defendants’
1 In neither their response to the Motion for Class Certification before Judge You nor in their objections to Judge You’s Findings and Recommendations before this Court did Defendants PAGE 7 – ORDER

Case 3:14-cv-00820-YY Document 160 Filed 07/23/18 Page 8 of 8
Motion for Summary Judgment (ECF 58) is GRANTED as to plaintiffs’ claims for alleged constitutional violations based on the emergency shakedown search of October 10, 2012 and GRANTED as to all claims under the Eighth amendment. Otherwise, Defendants’ Motion for Summary Judgment (ECF 58) is DENIED. Plaintiffs’ Motion to Certify the Class (ECF 79) is GRANTED as to Class One, but only as to the Fourth Amendment claims of male inmates at the CCJ who underwent return-from-court visual strip searches between September 25, 2012, and the date in May 2013 on which the County installed privacy panels in CCJ’s hallway. Plaintiffs William Dillon, Scott Graue, David Hodges, and Albert Love should be appointed as class representatives of Class One. Additionally, Leonard Berman should be appointed as class counsel. In all other respects, the motion to certify is DENIED. Plaintiffs’ Motion for Partial Summary Judgment (ECF 82) is DENIED.
IT IS SO ORDERED. DATED this 23th day of July, 2018.
/s/ Michael H. Simon Michael H. Simon United States District Judge
object to the adequacy of Leonard Berman as class counsel under Rule 23(g)(1) and (4) of the Federal Rules of Civil Procedure. The Court declines to raise the matter sua sponte. PAGE 8 – ORDER

 
 Case 3:14-cv-00820-YY Document 198 Filed 08/06/19 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

WILLIAM DILLON, SCOTT GRAUE, DAVID HODGES, and ALBERT LOVE individually, and on behalf of a class of others similarly situated,
Plaintiffs,
v.
CLACKAMAS COUNTY, and CRAIG ROBERTS, both individually and in his official capacity as Sheriff,
Defendants.

Case No. 3:14-cv-00820-YY
FINDINGS AND RECOMMENDATIONS

YOU, Magistrate Judge: Plaintiffs are former inmates of the Clackamas County Jail (“CCJ”). In this class action,
plaintiffs allege that their federal constitutional and state statutory rights were violated by visual strip searches they endured during incarceration. This case was originally filed on May 18, 2014, and included as named plaintiffs William Dillon, Scott Graue, and David Hodges. On May 4, 2015, plaintiffs filed a Second Amended Complaint adding two additional named

1 – FINDINGS AND RECOMMENDATIONS

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plaintiffs, Albert Love and Jayson Saylor.1 Second Am. Compl. , ECF #31. Defendants include Clackamas County and the County Sheriff, Craig Roberts.
On July 23, 2018, the court granted plaintiffs’ motion to certify the class “as to the Fourth Amendment claims by male inmates at the CCJ who underwent return-from-court visual strip searches between September 25, 2012, and the date in May 2013 on which the County installed privacy panels in CCJ’s hallway.” Order 8, ECF #160. The court also appointed Leonard Berman as class counsel. Id.
Defendants move the court for an order decertifying the class on the basis that plaintiffs’ counsel Leonard Berman cannot adequately represent the class. ECF #177. For the reasons discussed below, defendants’ motion should be GRANTED.
FINDINGS A district court’s order granting class certification is subject to later modification, including class decertification. See FRCP 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”); see also Sali v. Corona Regional Medical Center, 909 F.3d 996, 1004 (9th Cir. 2018) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 (1978)) (describing a court’s class certification order as “inherently tentative”). A district court’s decision to decertify a class is committed to its sound discretion. Knight v. Kenai Peninsula Borough Sch. Dist., 131 F. 3d 807, 816 (9th Cir. 1997). Plaintiffs, as the party seeking class certification, bear the burden of demonstrating that the requirements of Federal Rule of Civil Procedure 23 are met. See United Steel Workers v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010) (“The party seeking class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met.”).
1 Plaintiffs voluntarily dismissed Saylor as a named plaintiff on January 9, 2017. ECF #65.
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Rule 23(a)(4) provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if . . . the representative parties will fairly and adequately protect the interests of the class.” “To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (citation omitted).
Determining the adequacy of representation requires consideration of two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Id (citation omitted). The latter factor is at issue in this case.
Rule 23(g)(1)(A) directs courts to consider several factors when appointing class counsel: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. FRCP 23(g)(1)(A). Courts also may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” FRCP 23(g)(1)(B). Mr. Berman appears to have sufficient knowledge regarding the applicable law, as evidenced by the fact he has brought other prisoner civil rights actions in this district. However, Mr. Berman’s repeated failure to meet court deadlines in this case and others, the multitude of mistakes that he made in providing class notice in this case, and his history in this district demonstrate his inability to adequately represent the class in this case.
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I. Deficiencies in Class Notice Defendants contend that Mr. Berman failed to properly effectuate notice of class
certification pursuant to Rule 23(c)(2)(B). Def. Reply 3, ECF #182. As the class was certified under Rule 23(b)(3), pursuant to Rule 23(c)(2)(B), “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” “Both the form and content of the notice must be adequate to be approved by the courts.” Fraser v. Wal-Mart Stores, Inc., No. 2:13-cv-00520TLN-DB, 2016 WL 6208367, at *6 (E.D. Cal. Oct. 24, 2016) (citing Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 452 (E.D. Cal. 2013)). Moreover, “[u]nder Rule 23(c)(2)(B), courts must scrutinize the form and content of the proposed notice, as well as the manner in which it is to be disseminated.” Lauber v. Belford High School, No. 09-CV-14345, 2012 WL 12994873, at *1 (E.D. Mich. Apr. 6, 2012). “Typically, the plaintiff prepares the notice for the Court’s review and approval, giving the defendant the opportunity to object or suggest changes. However, the Court is ultimately responsible for directing notice to the class members and protecting their due process rights to remain in the class or be excluded.” Patton v. Dollar Tree Stores, Inc., No. CV-15-03813-MWF, 2017 WL 8233883, at *2 (C.D. Cal. Apr. 5, 2017) (citation omitted).
Here, the notice that was effectuated on February 16, 2019, was not approved by the court. The court did not have the opportunity to scrutinize the form and content of the proposed notice, and defendants had no opportunity to object or suggest changes. The court cannot fulfill its duty under FRCP 23(c)(2)(B) to direct the “best notice that is practicable,” if it has no opportunity to review the notice before it is sent to class members.
4 – FINDINGS AND RECOMMENDATIONS

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After defendants filed their motion to decertify the class, the court instructed Mr. Berman to file a copy of the class notice by Friday, May 17, 2019, for the court’s review. Order, ECF #184. On May 15, 2019, plaintiffs filed a copy of a class notice; however, it was a notice of a proposed settlement from a different class action. See Proposed Class Notice, ECF #185. The next day Mr. Berman emailed a copy of the class notice—for this case—to the court, but was unable to upload the notice into ECF. In his email, Mr. Berman claimed to be having “unprecedented computer problems.”
On May 20, 2019, plaintiffs filed a copy of the class notice in the docket; however, there is at least one difference between the class notice that was emailed to the court on May 16, 2019, and the class notice that was filed in ECF four days later.2 Compare Corrected Proposed Notice, ECF #186, with Emailed Class Notice, ECF #197. It is not clear whether Mr. Berman made updates to the class notice in the interim, or whether he had two versions of the class notice, and emailed one and filed the other. In any event, it is unclear which version was mailed to the class members. Indeed, given the fact that Mr. Berman initially provided the court with an incorrect document from a completely different case, and then provided two different versions of the class notice, it is conceivable that an entirely different version—one that the court has not seen—was mailed to the class members. These doubts certainly raise concerns as to the adequacy of representation.
The two notices provided by Mr. Berman also contain typographical and grammatical errors. Moreover, the definition of the class is not “clearly and concisely state[d] in plain, easily
2 The word “FROM” was included in the definition of the class in the version that was emailed to the court on May 16, 2019; however, it was deleted in the version that was filed on May 20, 2019.
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understood language” as required by FRCP 23(c)(2)(B). The class is defined verbatim as follows:
The class includes all male inmates were booked into the Clackamas County Jail and strip-searched in a group, UPON RETURN FROM COURT, OUTSIDE OF PRIVACY PANELS but only as to the Fourth Amendment claims of male inmates at the CCJ who underwent return-from-court group visual strip searches between September 25, 2012, and a date in May 2013 when privacy panels were installed. Corrected Proposed Notice, ECF #186.3 Adding to the confusion is an incomplete sentence that references a “proposed Settlement,” despite the fact that there is no proposed settlement in this case: “If the proposed Settlement receives final approval, people who were subjected to a strip search in the Clackamas County Jail.” Corrected Proposed Notice, ECF #186. In sum, not only was the notice mailed after the deadline and without court approval, but the notice itself fails to meet the requirements of FRCP 23(c)(2)(B). II. Missed Deadlines After the court had already ordered that, due to the age of the case, no further extensions would be granted, Mr. Berman requested a 90-day extension of time to effectuate notice. See Am. Order, ECF #170; Mot. Exten., ECF #172. The motion was filed January 31, 2019, the day
3 Compare the class notice in this case to the clear and concise language approved by a court in another class action in this district:
The Court has certified this case as a class action consisting of all current and former employees of Butler Investments, Inc. and/or Canby Pub & Grill from October 9, 2007, to the present, including a first subclass of all front-of-the-house employees during this time period and a second subclass of all back-of-the-house employees during this time period. This notice constitutes notice to the class members that the above class has been certified, and of their right to opt-out, and the required procedures for doing so. Chastain v. Cam, No. 3:13-cv-1802-SI, ECF #142, at 3; id., ECF #143 (order approving proposed notice).
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before the deadline for completing notice was to expire. Id. Plaintiffs eventually completed notice on February 15, 2019, two weeks after the deadline had passed. Cert. Compl., ECF #175.
Additionally, Mr. Berman failed to meet the deadline for delivering his expert report. On April 23, 2019, the court granted a stipulated motion for extension of discovery, and ordered plaintiffs to provide their expert disclosures to defendants by May 1, 2019. Order, ECF #181. The next day, Mr. Berman emailed defendants informing them that he had to replace his expert and said he expected “to get [them] a report by early to mid-May.” Lillegren Decl. ¶ 5, ECF #190. Mr. Berman delivered the expert report on May 16, 2019, two weeks after the May 1, 2016 deadline. Id. ¶8. However, Mr. Berman failed to obtain permission to extend this deadline, and this failure to comply with the court’s deadline is the subject of a pending motion for sanctions filed by the defense. Mot. Imp. Sanctions, ECF # 189; see Lilligren Decl. ¶¶ 6-7 (contending that by informing defense counsel on April 24, 2019, that he had replaced his expert, Mr. Berman had “no intention of complying with the Court’s” May 1, 2019 deadline).
Mr. Berman’s failure to meet deadlines appears to be in keeping with a pattern. In another case, Lyons v. Peters, Judge Simon recently found that Mr. Berman could not adequately represent a class, relying in part on the fact that Mr. Berman had “repeatedly missed briefing and discovery deadlines. . . .” See Order 3, ECF #67, No. 3:17-cv-720. III. Resources
In Lyons, Judge Simon also expressed concern that Mr. Berman is a solo practitioner, noting that he might not have had the “available resources” to commit to a class action case. Id. at 6. Judge Simon explained that those concerns were “compounded by the fact that [Mr. Berman had] approximately 20 active cases in this district.” Id. Currently, including this case, Mr. Berman has 14 active cases in this district.
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Mr. Berman argues that Lyons would have involved more work than this case because it had 14,000 potential class members whereas this case has only 1,500 class members. Pl. Resp. 3, ECF #180. Whether or not this case will require less work than Lyons, there nevertheless has been a failure to meet deadlines in this case. Moreover, the class notice contained typographical and grammatical errors, was poorly formatted, and included confusing language, which indicates that Mr. Berman does not have the resources to carefully proofread a one-page class notice, despite the importance of the document. IV. Conduct in Other Cases
Additionally, as Judge Simon noted in Lyons, Mr. Berman has demonstrated an “apparent aversion to trial,” calling into question whether he will see this case through to final disposition. Order 6, ECF #67, No. 3:17-cv-730-SI. For example, Mr. Berman has, on multiple occasions, sought to withdraw as counsel shortly before trial. Id.
In one such instance, after his motion to withdraw was denied two weeks before trial, Mr. Berman simply failed to appear in court on the day of trial. See Radilla v. Newberg et al, Case No. 3:15-cv-1019-MO, ECF 66 (D. Or. Sept. 13, 2016) (denying motion to withdraw); Id. ECF 73 (D. Or. Sept. 27, 2016) (granting Mr. Berman’s motion to withdraw on reconsideration after he failed to appear in court on the day of trial). Id. Recently, Mr. Berman completed a jury trial to verdict in this district. Torres v. Snider, No. 3:17-cv-00624-SI. However, given the age of this case and the amount of work remaining for the parties and the court leading up to a potential trial, it remains of concern that Mr. Berman may move to withdraw at the eleventh hour or fail to appear in court on the day of trial. V. Withdrawal of Co-Counsel Mr. Berman was the original counsel of record in this case but was subsequently joined by Tonna Farrar as co-counsel. See Compl., ECF #1; Notice of Appearance, ECF #13. Prior to
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class certification, Ms. Farrar withdrew from the case. See Notice of Attorney Withdrawal, ECF #55; ECF #56. In plaintiffs’ Motion for Class Certification, Mr. Berman alleged that “if granted class certification, former counsel Tonna Farrar will likely rejoin the case.” Mot. Class Cert. 10, ECF #79. Class certification was granted; nevertheless, former counsel Ms. Farrar has not rejoined the case. Indeed, based on the reasons given for her withdrawal, it does not appear that there was ever any realistic possibility that she would return to the case. See Notice of Attorney Withdrawal ¶¶ 2, 4, ECF #55 (explaining that “irreconcilable differences” between Ms. Farrar and Mr. Berman would “render it impossible” for her to provide effective counsel and required her to withdraw under RPC 5.1). VI. Work Completed in the Case
In Sali v. Corona Regional Medical Center, 909 F.3d 996, 1007-08 (9th Cir. 2018), the Ninth Circuit held that a district court abused its discretion in concluding that proposed class counsel was inadequate. The court found that the district court had focused only on the errors made by counsel, but ignored the “evidence in the record demonstrating class counsel’s substantial and competent work on the case.” Id. at 1008. Specifically, the Ninth Circuit relied on the fact that class counsel had:
incurred thousands of dollars in costs and invested significant time in this matter, including preparing dozens of interrogatories and requests for production, taking numerous depositions, retaining experts, defending the named plaintiffs’ depositions and the deposition of the plaintiffs’ expert economist, reviewing and analyzing thousands of documents, interviewing hundreds of class members, obtaining signed declarations, and preparing and filing a motion for class certification. Id. In Lyons, the court distinguished Sali, noting that “Mr. Berman’s investments in this case do not appear to be nearly as significant as those of the proposed class counsel in Sali.” Order 6, ECF #67, No. 3:17-cv-730-SI. Likewise, in this case, while Mr. Berman has certainly made
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Case 3:14-cv-00820-YY Document 198 Filed 08/06/19 Page 10 of 12
investments in the case, they do not rise to the level in Sali. Mr. Berman has taken and defended depositions, filed and responded to a number of motions, retained an expert, and issued a class notice; however, there is no indication that he has interviewed hundreds of class members, reviewed and analyzed thousands of documents, or prepared dozens of interrogatories.
Furthermore, in Sali, there was no evidence that class counsel had a history or pattern of failing to meet deadlines or comply with court orders. There also was no risk that class counsel would withdraw on the eve of trial or fail to show up for trial. Additionally, as noted by Judge Simon in Lyons, “class counsel in Sali consisted of an entire law firm,” whereas Mr. Berman’s “available resources to commit to this case as a solo practitioner are far more modest.” Order 6, ECF #67, No. 3:17-cv-730-SI.
While the Ninth Circuit held in Sali that it was “premature” at such an “early stage of the litigation” to determine that class counsel was inadequate, here the litigation has progressed further. 909 F.3d at 1008. At this point in the case, the court has a good idea of whether Mr. Berman has the ability to handle a class action. Importantly, as detailed above, Mr. Berman failed to meet the court’s deadline for effectuating class notice and the notice itself was deficient. Mr. Berman’s failure to communicate effectively with absent class members cuts to the heart of his adequacy as class counsel.
Finally, plaintiffs have fallen short of meeting their burden of demonstrating that the requirements of Rule 23 are met. United Steel Workers, 593 F.3d at 807. In his four-page response, Mr. Berman did not discuss or cite to Rule or any relevant caselaw. Pl. Resp., ECF #180. Despite asserting that significant effort and expense has been incurred, Mr. Berman provide no evidence documenting the amount of work he has completed or the actual amount of expenses incurred. Indeed, the effectuation of notice to 1,500 potential class members was the
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only example Mr. Berman gave regarding the work he has completed in this case. See Pl. Resp. 1-2, ECF #180. The court must consider counsel’s “competent work on the case,” but Mr. Berman’s improperly effectuated class notice does not qualify as competent work. Sali, 909 F.3d at 1008.
Plaintiffs argue that nearly 1,500 class members have been notified and significant effort and expense would be required to notify the pending class of decertification. Pl. Resp. 1-2, ECF #180. However, the class notice was deficient; therefore, similar effort and expense would be required to cure the deficient notice even if the court denied the motion to decertify. See Day v. Whirlpool Corporation, No. 2:13-CV-02164, 2014 WL 12461378, at *8 (W.D. Ark. Dec. 3, 2014) (holding that the proposed notice did not “clearly and concisely define the class in plain language as required by Rule 23(c)(2)(B)(ii)” and explaining that where the court is viewing a notice “retrospectively” it would have the discretion to determine whether the failure to comply with FRCP 23(c)(2)(B) was harmless).4
Plaintiffs also argue that the court was aware of Mr. Berman’s solo practitioner status, health challenges, and litigation lapses when it initially appointed him as counsel in this case. Pl. Resp. 2, ECF #180. Whether or not the court was aware of those issues, at that point, there were no objections to the adequacy of Mr. Berman as class counsel and the court declined to raise the matter sua sponte. Moreover, subsequent to his appointment, Mr. Berman has missed deadlines and committed a number of missteps in effectuating notice, with the result being that a deficient class notice was mailed to 1,500 potential class members.
4 Because the court is recommending that defendants’ motion to decertify the class be granted, it is not necessary to reach the question of whether or not the deficiency was harmful and corrective notice would have been required. Nevertheless, it appears that the confusing language included in the class definition, taken together with the false assertion that there was a proposed settlement, would not be harmless.
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RECOMMENDATION For the reasons stated above, defendants’ motion to decertify the class (ECF #177) should be GRANTED. If these findings and recommendations are adopted, the court should direct plaintiffs to immediately prepare and provide notice of decertification to all members of the class to whom notice has previously been sent. This notice of decertification should be submitted to the court for approval before it is sent.
SCHEDULING ORDER These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, August 20, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment. DATED August 6, 2019.
/s/ Youlee Yim You Youlee Yim You United States Magistrate Judge
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 Case 3:14-cv-00820-YY Document 217 Filed 12/09/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

WILLIAM DILLON, et al., individually, and on behalf of a class of others similarly situated,

Case No. 3:14-cv-820-YY ORDER

Plaintiffs,

v.

CLACKAMAS COUNTY and CRAIG ROBERTS, both individually and in his official capacity as Sheriff,

Defendant.

Michael H. Simon, District Judge.

United States Magistrate Judge Youlee Yim You issued Findings and Recommendation

in this case on August 6, 2019. ECF 198. Judge You recommended that Defendants’ Motion to

Decertify the Class (ECF 177) be granted. Plaintiffs filed timely objections. ECF 207.

Under the Federal Magistrates Act (“Act”), the court may “accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.

§ 636(b)(1). If a party objects to a magistrate’s findings and recommendations, “the court shall

make a de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). If no party objects,

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Case 3:14-cv-00820-YY Document 217 Filed 12/09/19 Page 2 of 2
the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate’s report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate’s findings and recommendations if objection is made, “but not otherwise”).
The Court has reviewed de novo Plaintiff’s objections (ECF 207). For the reasons stated by Judge You, the Court ADOPTS Judge You’s Findings and Recommendation (ECF 198). Defendants’ Motion to Decertify the Class (ECF 177) is GRANTED. Within 14 days, Plaintiffs shall prepare a draft notice of decertification and submit that draft to Judge You for her review and approval before sending the final notice to the class.
IT IS SO ORDERED. DATED this 9th day of December, 2019.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:14-cv-00820-YY Document 225 Filed 05/19/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

WILLIAM DILLON, SCOTT GRAUE, DAVID HODGES, and ALBERT LOVE,
Plaintiffs,
v.
CLACKAMAS COUNTY and CRAIG ROBERTS,
Defendants.

Case No. 3:14-cv-820-YY
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

Michael H. Simon, District Judge. United States Magistrate Judge Youlee Yim You issued Findings and Recommendations
in this case on April 20, 2020. ECF 221. Judge You recommended that Defendants’ motion for summary judgment (ECF 210) be granted in full and the case be dismissed with prejudice.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge’s findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

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Case 3:14-cv-00820-YY Document 225 Filed 05/19/20 Page 2 of 2
For those portions of a magistrate judge’s findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate’s report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge’s findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate judge’s recommendations for “clear error on the face of the record.”
Plaintiffs timely filed objections (ECF 223), to which Defendants responded. ECF 224. Plaintiffs object to the entirety of Judge You’s Findings and Recommendation. The Court has reviewed Judge You’s Findings and Recommendation de novo and adopts them. The Court GRANTS Defendants’ Motion for Summary Judgment (ECF 210) and DISMISSES this case with prejudice.
IT IS SO ORDERED. DATED this 19th day of May, 2020.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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