Case 4:04-cv-00448-SBA Document 48-1 Filed 07/18/2006 Page 1 of 13

1 Andrew C. Schwartz (State Bar No. 64578) Thom Seaton (State Bar No. 62713)
2 CASPER, MEADOWS, SCHWARTZ & COOK A Professional Corporation
3 California Plaza 2121 North California Blvd., Suite 1020
4 Walnut Creek, California 94596 Telephone: (925) 947-1147
5 Facsimile: (925) 947-1131

6 Mark E. Merin (State Bar No. 043849) LAW OFFICES OF MARK E. MERIN
7 2001 P Street, Suite 100 Sacramento, California 95814
8 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
9 Attorneys for Plaintiff
10 SHANNON GALLAGHER

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 SHANNON GALLAGHER, ROBERTA BAUCCIO, GRACE CARLAND, and all
16 others similarly situated,

17

Plaintiffs,

18

vs.

Case No. 04-0448 SBA
AMENDED CLASS ACTION COMPLAINT
42 U.S.C. § 1983 Supplemental State Claims

19 COUNTY OF SAN MATEO; SAN MATEO DEMAND FOR JURY TRIAL COUNTY SHERIFF’S DEPARTMENT;
20 SAN MATEO COUNTY SHERIFF DON HORSLEY, in his individual and official
21 capacity; SAN MATEO COUNTY SHERIFF’S DEPUTIES DOES 1
22 THROUGH 100; and DOES 1 THROUGH, 150 INCLUSIVE, et al.,
23 Defendants.
24

25 PLAINTIFFS ALLEGE:

26

INTRODUCTION

27

This is an action for declaratory and injunctive relief, damages, and punitive

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

damages against the COUNTY OF SAN MATEO, its SHERIFF, DON HORSLEY,

Amended Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

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1 SHERIFF’S DEPARTMENT, and SHERIFF DEPUTIES sued herein by their fictitious

2 names for violations of plaintiffs’ constitutional rights resulting from application of the

3 County of San Mateo’s and the Sheriff’s policies, practices, and customs concerning

4 the use of strip searches and visual body cavity searches in the San Mateo County

5 Jails. Plaintiffs seek an order declaring illegal defendants’ policy of subjecting

6 detainees in their custody to strip and visual body cavity searches before they are

7 arraigned and without having any reasonable suspicion that the searches will be

8 productive of contraband.

9

Defendants’ strip search and visual body cavity search policies, practices, and

10 customs violate plaintiffs’ rights secured to them by the Fourth and Fourteenth

11 Amendments to the U.S. Constitution and entitle plaintiffs to recover damages under

12 the Federal Civil Rights Act (42 U.S.C. sec 1983).

13

Additionally, plaintiffs include supplemental claims under California state law

14 against defendants: 1) for violation of California Penal Code sec 4030 which prohibits

15 pre-arraignment strip searches of most misdemeanents and provides for minimum

16 damages of $1,000 for each illegal search; and 2) for violation of the Unruh Civil Rights

17 Act (California Civil Code sec 52 and 52.1(b)) pursuant to which each plaintiff denied a

18 statutory or state or federal Constitutional right is entitled to recover a minimum of

19 $4,000 for each violation.

20

JURISDICTION

21

1. This action is brought pursuant to 42 USC sec 1983 and 1988, and the

22 Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is

23 founded upon 28 USC sec 1331 and 1341(3) and (4) and the aforementioned statutory

24 and constitutional provisions.

25

2. The court has supplemental jurisdiction over plaintiffs’ state claims under

26 28 USC sec 1367(a).

27

3. The amount in controversy exceeds $10,000, excluding interest and

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

costs.
Amended Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

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1

PARTIES

2

4. Plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO, GRACE

3 CARLAND, and all those similarly situated, are, and at all material times herein, were

4 citizens of the United States and residents of the state of California who were arrested

5 within the period beginning three (3) years before July 10, 2003, and continuing to this

6 date, and who were subjected to strip and/or visual body cavity searches at any and all

7 San Mateo County Jails (hereinafter referred to as the “San Mateo Jail”), prior to being

8 arraigned and/or without the defendants first having, and recording in writing, a

9 reasonable suspicion that the searches would be productive of contraband or

10 weapons.

11

5. Defendant COUNTY OF SAN MATEO SHERIFF DON HORSLEY is, and

12 at all material times referred to herein, was the duly elected Sheriff of the county of

13 San Mateo, responsible for administering the Jail facilities and for making, overseeing,

14 and implementing the policies, practices, and customs challenged herein relating to

15 the operation of the San Mateo Jail. He is sued in his individual and official capacities.

16

6. Defendants SAN MATEO COUNTY SHERIFF DEPUTIES sued herein

17 by their fictitious names (Does 1 through 150) are all deputies who, as part of their

18 duties at the San Mateo Jails, subjected plaintiff to pre-arraignment strip and/or visual

19 body cavity searches without first having, and recording in writing, a reasonable

20 suspicion that the searches would be productive of contraband or weapons.

21

7. At all material times mentioned herein, each of the defendants was

22 acting under the color of law, to wit, under color of statutes, ordinances, regulations,

23 policies, customs and usages of the State of California, the COUNTY OF SAN MATEO

24 and/or the SAN MATEO COUNTY SHERIFF.

25

8. Defendant COUNTY OF SAN MATEO is, and at all material times

26 referred to herein, was, a division of the state of California, that maintained or

27 permitted an official policy or custom or practice causing or permitting the occurrence

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

of the types of wrongs complained of herein, which wrongs damaged plaintiffs as

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1 herein alleged. Plaintiffs’ allegations against the COUNTY are based on acts and

2 omissions of the SHERIFF and his deputies and on acts and omissions of persons

3 who are COUNTY employees, and on the COUNTY’s breach of its duty to protect

4 plaintiffs from the wrongful conduct of said persons and employees.

5

9. Defendants SAN MATEO COUNTY SHERIFF’S DEPARTMENT and

6 SAN MATEO COUNTY SHERIFF DON HORSLEY, in his individual and official

7 capacity, also maintained or permitted an official policy or custom or practice causing

8 or permitting the occurrence of the types of wrongs complained of herein, which

9 wrongs damaged plaintiffs as herein alleged.

10

10. Class action plaintiffs are those similarly situated who, during the period

11 beginning three (3) years before July 10, 2003, and continuing to this date, were

12 subjected by defendants to pre-arraignment strip and/or visual body cavity searches

13 without defendants having, and recording in writing, a reasonable suspicion that the

14 searches would be productive of contraband or weapons.

15

FACTS

16

11. On July 10, 2003 at approximately 1:00 p.m., in the City of Pacifica,

17 plaintiff, SHANNON GALLAGHER was arrested by a member of the Pacifica Police

18 Department on a three year old San Francisco County traffic warrant for driving on a

19 suspended license.

20

12. Despite the fact that Shannon Gallagher had a valid driver’s license in

21 her possession that had been issued nine months earlier, she was arrested and taken

22 to Pacifica Police Department and placed in a holding cell.

23

13. Shannon Gallagher remained at Pacifica Police Department for a short

24 period of time, and was then taken to the San Mateo County Jail at Redwood City

25 where she remained for three hours and was subjected to a strip search and a visual

26 body cavity search.

27

14. Shannon Gallagher remained at the San Mateo County Jail in Redwood

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

City for approximately three hours when she was then handcuffed and placed in a van

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1 and transported to the San Mateo County Women’s Correctional Center.

2

15. Upon entry to the correctional facility, Shannon Gallagher was strip

3 searched for a second time and once again subjected to a visual body cavity search.

4

16. During both of these visual body cavity searches, Shannon Gallagher

5 was compelled to expose her genitalia and other private parts and was left standing

6 naked for a significant period of time. She remained in San Mateo County Women’s

7 Correctional Center for several more hours prior to bailing out.

8

17. Plaintiff was given a court date of August 18, 2003 in San Francisco

9 County when the charges against her were dropped.

10

18. Within six months of her arrest, plaintiff SHANNON GALLAGHER filed a

11 group government tort claim for herself and for all persons similarly situated (a copy of

12 said claim is attached hereto as Exhibit A, and incorporated herein to the extent

13 relevant by this reference). Plaintiff GALLAGHER’s group claim was denied on or

14 about January 15, 2004 allowing the filing of this Complaint.

15

19. ROBERTA BAUCCIO is a 74 year old retired secretary, who, on August

16 13, 2002, was arrested for driving while under the influence and taken to the San

17 Mateo County Jail where, prior to her arraignment, she was subjected to a visual body

18 cavity search where she was compelled to expose her genitalia and other private

19 parts.

20

20. On September 3, 2002, she was arrested again for driving on a

21 suspended license in violation of California Vehicle Code Section 14601, and was

22 once again subjected to an identical visual body cavity search.

23

21. Grace Carland is 64 years old and was arrested in San Mateo County on

24 April 16, 2002 for violations of California Penal Code Sections 487 and 459. She was

25 taken to the Maguire detention facility at 7:30 in the morning and was subjected to a

26 visual body cavity search where she was compelled to expose her genitalia and other

27 private parts prior to her arraignment later that day. She was never taken to the San

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

Mateo County Women’s Correctional Center and bailed out later that afternoon.

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1

22. Plaintiffs are informed and believe, and thereon allege, that defendants

2 routinely follow their policy, practice, and custom of subjection pre-arraignment

3 detainees, including, plaintiffs, to strip and visual body cavity searches without having,

4 and recording in writing, a reasonable suspicion that the search will be productive of

5 contraband or weapons.

6

23. Plaintiffs are informed and believe, and thereon allege, that defendants

7 have the ability to identify all such similarly situated plaintiffs, specifically those who,

8 while in defendants’ custody, at the San Mateo Jail since July 10, 2000, were

9 subjected to strip searches and/or visual body cavity searches prior to arraignment

10 without defendants first having, and recording, a reasonable suspicion that the

11 searches would be productive of contraband or weapons.

12

24. Defendant SHERIFF DON HORSLEY is personally responsible for the

13 promulgation and continuation of the strip search policy, practice, and custom

14 pursuant to which some of the plaintiffs herein were subjected to searches complained

15 of herein.

16

25. As a result of being subjected to the searches complained of herein,

17 each of the plaintiffs suffered physical, mental, and emotional distress, invasion of

18 privacy, and violation of due process of law and state and federal statutory and

19 constitutional rights, and are entitled to recover damages according to proof, but, at a

20 minimum, $1,000 as specified in California Penal Code § 4030 (p) and $4,000 as

21 specified in California Civil Code § 52 and § 52.1(b).

22

CLASS CLAIMS

23

26. The strip and visual body cavity searches to which plaintiffs were

24 subjected were performed pursuant to policies, practices, and customs of defendants

25 SHERIFF HORSLEY, COUNTY OF SAN MATEO SHERIFF’S DEPARTMENT,

26 COUNTY OF SAN MATEO, and the individual deputies sued herein by the fictitious

27 names 1 through 150. The searches complained of herein were performed without

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

regard to the nature of the alleged offenses for which plaintiffs had been arrested,

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1 without regard to whether or not plaintiffs were eligible for cite and release under Penal

2 Code sec 853.6, without regard to whether or not plaintiffs were eligible for and/or

3 were released on their own recognizance. Furthermore, the searches complained of

4 herein were performed without defendants having a reasonable belief that the plaintiffs

5 so searched possessed weapons or contraband, or that there existed facts supporting

6 a reasonable belief that the searches would produce contraband, and those facts

7 being articulated and recorded in a supervisor-approved document.

8

27. Plaintiffs bring this action on her own behalf and on behalf of all persons

9 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure and California

10 Code of Civil Procedure sec 382.

11

28. The class is defined to include all persons who, in the period from and

12 including July 10, 2003, to the present and continuing until this matter is adjudicated

13 and the practices complained of herein cease, were arrested and subjected to a pre-

14 arraignment strip and/or visual body cavity search at the San Mateo Jail without

15 defendants having, and recording, a reasonable suspicion that the search would be

16 productive of contraband or weapons.

17

29. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

18 members of the class are so numerous that joinder of all members is impractical.

19 Plaintiffs do not know the exact number of class members. Plaintiffs are informed and

20 believe, and thereupon allege, that there are more than 100 persons per day who are

21 arrested by defendants and/or in the custody of defendants and subjected to the

22 searches complained of herein as a result of defendants’ policy, practice, and custom

23 relating to said searches. Plaintiffs are informed and believe, and therefore allege,

24 that there are tens of thousands of persons in the proposed class.

25

30. In accordance with Federal Rules of Civil Procedure, Rule 23(a),

26 plaintiffs are informed and believe, and thereupon allege, that there are many

27 questions of fact common to the class including, but not limited to: (1) whether

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

defendants routinely subject all persons arrested to visual body cavity searches prior

Amended Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

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1 to arraignment if they intend such persons to be housed in a San Mateo County Jail;

2 (2) whether persons are subjected to visual body cavity searches prior to arraignment

3 without there being any reasonable suspicion, based on specific or articulable facts, to

4 believe any particular arrestee has concealed drugs, weapons, and/or contraband in

5 bodily cavities which could be detected by means of a visual body cavity search; (3)

6 whether the visual body cavity searches are conducted in an area of privacy so that

7 the searches cannot be observed by persons not participating in the searches, or

8 whether the visual body cavity searches are conducted in groups and/or in open areas

9 where they may be observed by persons not participating in the searches; and, (4)

10 whether the visual body cavity searches are reasonably related to defendants’

11 penological interest to maintain the security of the jail and whether or not there are

12 less intrusive methods for protecting any such interest.

13

31. In accordance with Federal Rules of Civil Procedure, Rule 23(a),

14 plaintiffs are informed and believe, and thereupon allege, that there are many

15 questions of law common to the class including, but are not limited to: (1) whether

16 defendants may perform visual body cavity searches on persons prior to their

17 arraignment without reasonable suspicion, based on specific or articulable facts, to

18 believe any particular inmate has concealed drugs, weapons and/or contraband which

19 would likely be discovered by a visual body cavity search; (2) whether defendants may

20 perform visual body cavity searches on persons without first reasonably relating the

21 use of the visual body cavity search to defendants’ penological interest to maintain the

22 security of the jail and determining if there is a less intrusive method to protect that

23 interest; (3) whether visual body cavity searches may be conducted in areas where the

24 search can be observed by people not participating in the search without violating

25 plaintiffs’ State and Federal constitutional rights and the protections afforded to

26 plaintiffs under California Penal Code section 4030; and, (4) whether or not

27 defendants’ strip search policy and procedure is in accordance with the State and/or

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

Federal Constitution.
Amended Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

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1

32. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

2 claims of the representative plaintiffs are typical of the class. Plaintiffs were searched,

3 prior to arraignment, without reasonable suspicion that a strip or visual body cavity

4 search would produce drugs, weapons or contraband (and without the facts supporting

5 any such suspicion being articulated in a supervisor-approved writing). Representative

6 plaintiffs have the same interests and suffered the same type of injuries as all of the

7 class members. Plaintiffs’ claims arose because of defendants’ policy, practice, and

8 custom of subjecting arrestees to strip and/or visual body cavity searches before

9 arraignment without having, and recording in writing, a reasonable suspicion that the

10 search would be productive of contraband or weapons. Plaintiffs’ claims are based

11 upon the same legal theories as the claims of the class members. Each class member

12 suffered actual damages as a result of being subjected to a visual body cavity search.

13 The actual damages suffered by the representative plaintiffs are similar in type and

14 amount to the actual damages suffered by each class member.

15

33. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

16 representative plaintiffs will fairly and adequately protect the class interests. Plaintiffs’

17 interests are consistent with and not antagonistic to the interests of the class.

18

34. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A),

19 prosecutions of separate actions by individual members of the class would create a

20 risk that inconsistent or varying adjudications with respect to individual members of the

21 class would establish incompatible standards of conduct for the parties opposing the

22 class.

23

35. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B),

24 prosecutions of separate actions by individual members of the class would create a

25 risk of inconsistent adjudications with respect to individual members of the class which

26 would, as a practical matter, substantially impair or impede the interests of the other

27 members of the class to protect their interests.

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
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TEL: (925) 947-1147 FAX (925) 947-1131

36. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2),

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1 plaintiffs are informed and believe, and thereupon allege, that defendants have acted

2 on grounds generally applicable to the class, thereby making appropriate the final

3 injunctive or declaratory relief with respect to the class as a whole.

4

37. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this

5 class action is superior to other available methods for the fair and equitable

6 adjudication of the controversy between the parties. Plaintiffs are informed and

7 believe, and thereupon allege, that the interests of members of the class in individually

8 controlling the prosecution of a separate action is low, in that most class members

9 would be unable individually to prosecute any action at all. Plaintiffs are informed and

10 believe, and thereupon allege, that the amounts at stake for individuals are so small

11 that separate suits would be impracticable. Plaintiffs are informed and believe, and

12 thereupon allege, that most members of the class will not be able to find counsel to

13 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is

14 desirable to concentrate all litigation in one forum because all of the claims arise in the

15 same location; i.e., the COUNTY OF SAN MATEO. It will promote judicial efficiency to

16 resolve the common questions of law and fact in one forum, rather than in multiple

17 courts.

18

38. Plaintiffs do not know the identities of all of the class members. Plaintiffs

19 are informed and believe, and thereupon allege, that the identities of the class

20 members may be ascertained from records maintained by the COUNTY OF SAN

21 MATEO and defendant SHERIFF DON HORSLEY and defendant COUNTY OF SAN

22 MATEO SHERIFF’S DEPARTMENT. Plaintiffs are informed and believe, and

23 thereupon allege, that defendants’ records reflect the identities, including addresses

24 and telephone numbers, of the persons who have been held in custody in the San

25 Mateo Jails. Plaintiffs are informed and believe, and thereupon allege, that records of,

26 and maintained by defendants reflect who was subject to a strip and/or visual body

27 cavity search, when the search occurred, where the search occurred, whether any

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

reasonable suspicion for the search existed and was recorded in a supervisor-

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1 approved writing, when persons searched were arraigned, the charges on which such

2 persons were arrested, and what treatment they received while so confined. Plaintiffs

3 are informed and believe, and thereupon allege, that all of the foregoing information is

4 contained in defendants’ computer system and that the information necessary to

5 identify the class members, by last known addresses, and the dates and reasons for

6 their arrests and/or release from custody, is readily available from said computer

7 system.

8

39. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class

9 members must be furnished with the best notice practicable under the circumstances,

10 including individual notice to all members who can be identified through reasonable

11 effort. Plaintiffs are informed and believe, and thereupon allege, that defendants’

12 computer records contain a last known address for class members. Plaintiffs

13 contemplate that individual notice will be given to class members at such last known

14 address by first class mail. Plaintiffs contemplate that the notice will inform class

15 members of the following:

16

1. The pendency of the class action and the issues common to the

17

class;

18

2. The nature of the action;

19

3. Their right to “opt out” of the action within a given time, in which

20

event they will not be bound by a decision rendered in the class

21

action;

22

4. Their right, if they do not “opt out,” to be represented by their own

23

counsel and to enter an appearance in the case; otherwise they

24

will be represented by the named class plaintiff and their counsel;

25

and

26

5. Their right, if they do not “opt out,” to share in any recovery in

27

favor of the class, and conversely to be bound by any judgment

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on the common issues adverse to the class.

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1

COUNT ONE

2

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

3

on behalf of Plaintiff and all persons similarly situated)

4

40. Defendants’ policies, practices, and customs regarding the strip and

5 visual body cavity searches complained of herein violated plaintiffs’ rights under the

6 Fourth Amendment to be free from unreasonable searches and seizures, violated said

7 plaintiffs’ rights to due process and privacy under the Fourteenth Amendment, and

8 directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to

9 recover damages for said constitutional violations pursuant to 42 U.S.C. sec 1983.

10 WHEREFORE, plaintiffs pray for relief as hereunder appears.

11

COUNT TWO

12

(California State Unruh Civil Rights Act, Civil Code sec 52 and 52.1,

13

on behalf of Plaintiffs and all persons similarly situated)

14

41. Defendants’ policies, practices, and customs regarding the strip and

15 visual body cavity searches complained of herein violated plaintiffs’ rights to privacy as

16 secured by Article I, Section 1 of the California Constitution and directly and

17 proximately damaged plaintiffs as herein alleged, entitling said plaintiffs to recover a

18 minimum of $4,000 each pursuant to California Civil Code sec 52.1 and sec 52, in

19 addition to other damages.

20 WHEREFORE, plaintiffs pray for relief as hereunder appears.

21

COUNT THREE

22 (Violation of California Penal Code sec 4030, California State Unruh Civil Rights Act,

23 Civil Code sec 52 and 52.1, on behalf of Plaintiffs and all persons similarly situated)

24

42. Defendants’ policies, practices, and customs regarding the strip and

25 visual body cavity searches complained of herein violated rights secured to plaintiffs

26 under California Penal Code sec 4030 and directly and proximately damaged plaintiffs

27 as herein alleged, entitling said plaintiffs to recover a minimum of $1,000 each

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
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TEL: (925) 947-1147 FAX (925) 947-1131

pursuant to California Penal Code sec 4030(p), and to further minimum damages of

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1 $4,000 each pursuant to California Civil Code sec 52.1 and sec 52, in addition to other

2 damages.

3 WHEREFORE, plaintiffs pray for relief as hereunder appears.

4

PRAYER FOR RELIEF

5 WHEREFORE, plaintiffs seek judgment as follows:

6

1. For declaratory and injunctive relief declaring illegal and enjoining,

7 preliminarily and permanently, defendants’ policies, practices, and customs of

8 subjecting pre-arraignment detainees to strip and visual body cavity searches without

9 having a reasonable suspicion that such searches would be productive of contraband

10 or weapons.

11

2. Certification of the action as a class action;

12

3. For compensatory, general, and special damages for each

13 representative and for each member of the class of plaintiffs, as against all

14 defendants;

15

4. Exemplary damages as against each of the individual defendants in an

16 amount sufficient to deter and to make an example of those defendants;

17

5. In addition to compensatory and statutory damages as allowed by law, at

18 least $4,000 for each plaintiff pursuant to California Civil Code sec 52.1 and sec 52;

19

6. Attorneys’ fees and costs under 42 U.S.C. sec 1988, California Civil

20 Code sec 52(b)(3), California Civil Code sec 52.1(h), and California Code of Civil

21 Procedure sec 1021.5; and

22

7. The cost of this suit and such other relief as the court finds just and

23 proper.

24 A JURY TRIAL IS HEREBY DEMANDED.

25

26 Dated: July 17, 2006 27

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Amended Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

/s/ Andrew C. Schwartz CASPER, MEADOWS, SCHWARTZ & COOK Attorneys for Plaintiffs
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 Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 1 of 14

1 LAW OFFICE OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 2001 P Street, Suite 100 Sacramento, California 95814
3 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
4

5

CASPER, MEADOWS, SCHWARTZ & COOK Andrew Charles Schwartz, SBN 064578

6

2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596

7

Telephone: (925) 947-1147 Facsimile: (925) 947-1131

8 Attorneys for Plaintiffs

9 THOMAS F. CASEY III, COUNTY COUNSEL, SBN 47562
10 Carol L. Woodward, Deputy, SBN 084197 Hall of Justice and Records
11 400 County Center, 6th Floor
Redwood City, CA 94063 12 Telephone: (650) 363-4746
Facsimile: (650) 363-4034 13

PORTER, SCOTT, WEIBERG & DELEHANT 14 Terence J. Cassidy, SBN 99180

15

P.O. Box 255428 Sacramento, CA 95865

16

Telephone: (916) 929-1481 Facsimile: (916) 927-3706

17 Attorneys for Defendants
18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21

SHANNON GALLAGHER, ROBERTA BAUCCIO, GRACE CARLAND, and all others

CASE NO: C 04-0448 SBA

22 similarly situated,

Plaintiffs,

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF

23 vs.

PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF

24 COUNTY OF SAN MATEO, SAN MATEO

CLASS ACTION

25 COUNTY SHERIFF’S DEPARTMENT; SAN

DATE:

MATEO COUNTY SHERIFF DON HORSLEY, in TIME:

26 his individual and official capacity; SAN MATEO CTRM:

COUNTY SHERIFF’S DEPUTIES DOES 1 27 THROUGH 100; and DOES 1 THROUGH 150,

JUDGE:

April 3, 2007 1:00 p.m. 3 Hon. Saundra Brown Armstrong

INCLUSIVE, et al., 28

Defendants.

PAGE 1 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 2 of 14

1

I. INTRODUCTION

2

Plaintiffs herein, three individuals representing themselves and all others similarly situated

3 in an action filed as a class action and certified as such by this Court, by and through their counsel,

4 Mark E. Merin of the Law Office of Mark E. Merin, and Andrew C. Schwartz of the firm Casper,

5 Meadows, Schwartz & Cook, jointly move with defendants herein, County of San Mateo, San Mateo

6 County Sheriff’s Department, and San Mateo County Sheriff Don Horsley, by and through their

7 counsel, Thomas F. Casey, III, County Counsel, Carol L. Woodward, Deputy County Counsel and

8 Terence J. Cassidy of the law firm Porter, Scott, Weiberg & Delehant, for this Court’s preliminary

9 approval of the class action settlement and issuance of an Order for preliminary approval of

10 settlement of class action (a proposed form of the Order is filed concurrently herewith) so that notice

11 may be given to the class and a Fairness Hearing on the proposed settlement scheduled with

12 distribution of the settlement funds if the Court approves the settlement at that Fairness Hearing.

13

II. STATEMENT OF FACTS/HISTORY OF LITIGATION

14

On or about February 3, 2004, plaintiff, SHANNON GALLAGHER, filed a class action

15 complaint against defendants, amended on July 18, 2006, to add plaintiffs ROBERTA BAUCCIO

16 and GRACE CARLAND as additional representative plaintiffs, challenging the defendants’ policy

17 of strip searching persons, prior to arraignment, who were arrested on charges not involving

18 violence, drugs, or weapons.

19

The parties engaged in extensive discovery which included exchange of documents,

20 preparation of and responses to request for production of documents, interrogatories and depositions

21 of policy makers and line officers, as well as depositions of the parties.

22

Effective December 2, 2003, defendants revised their strip search policies to eliminate

23 automatic, blanket strip searches of women housed in the Women’s Correctional Center prior to

24 arraignment. They also revised their practice to ensure that women arrested on felony charges were 25 not subject to blanket strip searches at the Maguire Correctional Facilityunless there was individual,

26 reasonable suspicion for such strip searches based upon the arrest charges or other factors. A copy 27 of defendants’ revised policies is attached hereto as Exhibit A. 28 \\\

PAGE 2 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 3 of 14

1

Plaintiffs moved for class certification and, on October 28, 2005, the honorable Saundra

2 Brown Armstrong issued her Order certifying the action to proceed as a class action with the classes

3 defined as follows:

4

a. For the federal claim (“Class One”):

5

All women who, from February 3, 2002 to December 2, 2003, were arrested on any

6

charge (including felonies) not involving weapons, controlled substances, or

7

violence, and not involving a violation of parole or a violation of probation (where

8

consent to search is a condition of such probation), and who were subjected to a

9

uniform and indiscriminate (blanket) strip/visual body cavity search by defendants

10

before arraignment at the San Mateo County Jail without any individualized

11

reasonable suspicions that they were concealing contraband. This class also includes

12

all female arrestees who were subjected to subsequent blanket strip search before

13

arraignment after the initial strip/visual body cavity search without any reasonable

14

individualized suspicion that they had subsequently acquired and hidden contraband

15

on their persons.

16

b. For the state law claim ("Class Two"):

17

All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on

18

an infraction or misdemeanor charge and brought to the San Mateo County Jail and

19

who were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity

20

search before arraignment without written supervisorial authorization, as required

21

under California Penal Code § 4030(f).

22

On December 16, 2005, and again on April 5, 2006, the parties met with Chief Magistrate

23 Judge James Larson in an attempt to mediate resolution of their dispute. That attempt was

24 unsuccessful and the parties continued to litigate the matter until August 15 and 16, 2006, when they

25 participated in further mediation sessions presided over by the Honorable Raul A. Ramirez (Ret.).

26 Thereafter, the parties continued their negotiations and, finally, agreed to a Stipulation of Settlement,

27 a copy of which is attached hereto as Exhibit B, which, subject to the approval of the Court, settles

28 this action in the manner and upon the terms set forth in the Stipulation of Settlement. The

PAGE 3 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 4 of 14

1 settlement provides for methods to notify the members of the class of the proposed settlement and

2 their entitlement to receive compensation upon the settlement, and to appear and object to the

3 settlement at a Fairness Hearing to be scheduled before this Court.

4

III. SUMMARY OF APPLICABLE LAW

5 A. Federal Law

6

In 1979 the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 449

7 (1979), held that custodial strip searches are subject to a balancing test which weighs the privacy

8 interest of the person to be searched against the legitimate security interests of the institution.

9 Following Bell v. Wolfish, courts considering the issue have applied objective standards to determine

10 the reasonableness of strip searches of pre-trial detainees.

11

In 1984, In Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir. 1984), the Ninth Circuit applied

12 the test of reasonableness to a strip search of a pre-arraignment detainee at a county jail and held that

13 a pre-arraignment strip search of a person arrested for a minor offense is unconstitutional absent an

14 individualized suspicion that such arrestee is carrying or concealing contraband or suffering from

15 a communicable disease. The fact that an arrestee might ultimately be intermingled with the general

16 population did not, by itself, justify a strip search as such intermingling at the pre-arraignment stage

17 was found to be “both limited and avoidable.” (Id., 745 F.2d at 618.)

18

In 1988, the Ninth Circuit decided Kennedy v. Los Angeles Police Department, 901 F.2d 702

19 (9th Cir. 1990). There, plaintiff was arrested and charged with grand theft, a felony, after a dispute

20 with a roommate concerning ownership of a T.V. She was stripped and subjected to a visual body

21 cavity search after she was booked and before she was placed in the general population. In that case

22 the court found that a blanket policy that subjected all felony arrestees to a visual body cavity search

23 upon booking in the county jail was a violation of the Fourth Amendment, in that the

24 felony/misdemeanor classification was not “reasonably related to the institution’s objective of

25 maintaining security.” (901 F.2d at 714.)

26

In 1992, the Ninth Circuit decided ActUp!/Portland v. Bagley, 971 F2d. 298 (9th Cir. 1992).

27 There, the court summarized the rule regarding strip searches as follows:

28

At the time appellees were searched, it was clearly established in this

circuit that it is unlawful to strip search an arrestee brought to a jail

PAGE 4 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 5 of 14

1

facility on charges of committing a minor offense, unless the officer

directing the search possesses a reasonable suspicion that the

2

individual arrestee is carrying or concealing contraband. Giles v.

Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), cert. denied, 471 U.S.

3

1053, 105 S.Ct. 2114. Reasonable suspicion may be based on “such

factors as the nature of the offense, the arrestee’s appearance and

4

conduct, and the prior arrest record.” Id. Adhering to the Supreme

Court’s direction in Bell v. Wolfish, 441 U.S. 520, 529, 99 S.Ct. 1861,

5

1884 (1979), the Giles test accounts for the fact that local jail

facilities frequently confront difficult security problems, and balances

6

those facility’s interests in controlling such problems against the

privacy interests of arrestees. See, 746 F.2d at 617.

7

8 (917 F.2d at 301.)

9 B. State Law

10

1. Penal Code § 4030:

11

Penal Code § 4030 was enacted with the express intent to protect the state and federal

12 constitutional rights of pre-arraignment adult arrestees and pre-detention hearing juvenile arrestees

13 detained for minor offenses. (Penal Code § 4030(a).) Penal Code § 4030(f) prohibits visual body

14 cavity searches and strip searches of prearraignment detainees “held in custody on a misdemeanor

15 or infraction offense, except those involving weapons, controlled substances, or violence,” unless

16 “a peace officer has determined there is reasonable suspicion based on specific and articulable facts

17 to believe that such person is concealing a weapon or contraband, and the strip search will result in

18 the discovery of the weapon or contraband.” The subsection further provides that no strip search

19 may be conducted without the prior written authorization of a supervising officer on duty and that

20 the authorization “shall include the specific and articulable facts and circumstances upon which the

21 reasonable suspicion determination was made by the supervisor.”

22

Penal Code § 4030(m) provides that all strip searches “shall be conducted in an area of

23 privacy so that the search cannot be observed by persons not participating in the search.”

24

Penal Code § 4030(p) provides that any person who suffers damages as a result of a violation

25 of 4030 may recover actual damages or $1,000, which ever is greater, in addition to other relief the

26 court may award, including reasonable attorney’s fees.

27 \\\

28 \\\

PAGE 5 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 6 of 14

1

2. California Constitution:

2

Article I, § 1 of the California Constitution states that privacy is an inalienable right. In Hill

3 v. National Collegiate Athletic Association, 7 Cal.4th 1, 26 Cal.Rptr. 834 (1994), the California

4 Supreme Court set out clear and detailed guidelines for courts to follow in addressing alleged

5 violations of California States Right to Privacy.

6

Persons who are strip searched in violation of Penal Code § 4030 are, ipso facto, deprived

7 of a specific statutory protection in violation of privacy protected, as well, by the California State

8 Constitution.

9

3. Federal Class Action Law:

10

Class action certification under Federal Rule 23 has been the preferred method for dealing

11 with cases challenging blanket jail pre-arraignment (pre-detention hearing) strip search policies.

12 (See Smith v. Montgomery County, 573 F.Supp 604 (Dist. MD 1983); Mack v. Suffolk County, 191

13 F.R.D. 16 (Dist. Mass 2000); Nielson v. York County, 219 F.R.D. 19 (Dist. MA 2003); Tardiff v.

14 Knox County, 218 F.R.D. 332 (Dist. MA 2003); Doe v. Calumet City, Illinois, 128 F.R.D. 93 (N.D.

15 Ill. 1989); Marybeth G. v. City of Chicago, 723 F.2d 1263, 1267, fn.2 (7th Cir. 1983); Maneely v.

16 City of Newburg, 208 F.R.D. 69 (S.D. NY 2002); and Bull, et al. v. San Francisco, et al., WL

17 449148 (2006).)

18

On April 9, 2004, the First Circuit Court of Appeal in Tardiff v. Knox County, et al.,

19 consolidated with Nielson v. York County, et al., upheld the certification of two blanket strip search 20 cases under Federal Rule 23(b)(3). (365 F.3d 1 (1st Cir. 2004).)

21

The advantages of certification in blanket strip search cases is manifest where the common

22 issues of law or fact predominate over individual issues. In this class action case before this Court

23 for preliminary approval of the proposed class settlement, the benefits to the parties include, for

24 defendants, a complete settlement of all claims of persons in the class with claims for damages

25 arising during the period from February 3, 2002, to December 2, 2003, and obtaining res judicata

26 effect of the settlement. For plaintiffs, the settlement of the class action provides a fund adequate

27 to pay claims of all those persons submitting the requisite Claim Form who were strip searched in

28 violation of federal law or state statute at or above the minimum payment to which they would be

PAGE 6 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 7 of 14

1 otherwise entitled if they had established their individual entitlement to damages under the relevant

2 law, without the consumption of time and uncertainty continued litigation entails.

3

IV. OUTLINE OF PROPOSED SETTLEMENT

4 A. Purpose

5

The purpose of the proposed settlement is fully and finally to resolve all claims for damages

6 which any female strip searched in violation of state or federal law at the San Mateo County Maguire

7 Correctional Facility or the Women’s Correctional Center, prior to arraignment, during the period

8 from February 3, 2002, to and including December 2, 2003, might have; to provide adequate

9 compensation for each such person; to ensure that defendants, once the settlement funds have been

10 distributed, shall be fully and finally relieved of all further liability to any persons in the class and

11 bound by the Court’s final judgment; and to provide a mechanism by which persons challenging the

12 fairness of the proposed settlement may do so.

13

To accomplish the above-stated purposes, the parties entered into negotiations, facilitated by

14 first Chief Magistrate Judge James Larson and thereafter by the Honorable Raul Ramirez (Ret.),

15 acting as mediators, and negotiated the Stipulation of Settlement, a copy of which is attached hereto

16 as Exhibit B.

17

The principle provisions of the attached settlement are the following:

18 B. Description of Class Members

19

The settlement class is, as the Honorable Saundra Brown Armstrong stated in her Order

20 certifying the action to proceed as a class action:

21

a. For the federal claim ("Class One"):

22

All women who, from February 3, 2002 to December 2, 2003, were arrested on any

23

charge (including felonies) not involving weapons, controlled substances, or

24

violence, and not involving a violation of parole or a violation of probation (where

25

consent to search is a condition of such probation), and who were subjected to a

26

uniform and indiscriminate (blanket) strip/visual body cavity search by defendants

27

before arraignment at the San Mateo County Jail without any individualized

28

reasonable suspicions that they were concealing contraband. This class also includes

PAGE 7 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 8 of 14

1

all female arrestees who were subjected to subsequent blanket strip search before

2

arraignment after the initial strip/visual body cavity search without any reasonable

3

individualized suspicion that they had subsequently acquired and hidden contraband

4

on their persons.

5

b. For the state law claim ("Class Two"):

6

All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on

7

an infraction or misdemeanor charge and brought to the San Mateo County Jail and

8

who were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity

9

search before arraignment without written supervisorial authorization, as required

10

under California Penal Code § 4030(f).

11

The Class Period extends from February 3, 2002, to December 2, 2003, the date on which

12 new strip search policies, in compliance with state and federal law, were promulgated by defendants.

13 C. Compensation Provided By Settlement

14

The Stipulation of Settlement provides for the payment of up to One Million, One Hundred

15 Fifty Thousand Dollars ($1,150,000) to satisfy all claims of the Settlement Class Members

16 (“SCMs”). All SCMs who submit qualifying verified Claim Forms will be compensated as follows:

17 for each booking up to a maximum of three (3) bookings, SCMs will receive the following payments.

18 The Administrator will determine the amount of each Tier 1 payment based on the SCM’s responses

19 to the Claim Form and the database provided by the County.

20

Tier 1 Payments

21

(a) If they were booked and transferred to the Women’s Correctional Center, prior to

22

arraignment, a base sum of $2,500;

23

(b) If they were booked and released, without being transferred to the Women’s

24

Correctional Center, a base payment of $1,250.

25

SCMs who seek more than the basic payments provided pursuant to Tier 1 shall have their

26 claims determined in accordance with the criteria set forth below relating to Tiers 2 and 3.

27 \\\

28 \\\

PAGE 8 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 9 of 14

1

Requirements for Being Considered for Tier 2 Payments

2

In order to be considered for a Tier 2 payment, the SCM must answer applicable questions

3 1 through 5 in the Claim Form and provide substantiating detail in accordance with the instructions

4 in the Claim Form. Questions 1 through 5 are designed to determine if circumstances existed at the

5 time of the strip search which merit, in all fairness, additional compensation for the SCM. Those

6 factors include the following: age (under 21 or over 60); the existence of a physical disability or

7 disfigurement (such as an embarrassing scar condition in a private area); a mental disability; a

8 condition of pregnancy (more than 3 months); piercings in a private area which had to be removed

9 or hair extensions or religious garments which had to be removed; a female who was menstruating

10 at the time of the strip search. The SCMs must also provide substianting detail in accordance with

11 the instructions when they submit their Claim Forms to qualify for Tier 2 payments. The Claims

12 Administrator will assign points to the SCMs based on responses to the questions and the

13 substantiating detail provided which may permit SCMs to receive up to an additional $3,000 over

14 the base payment.

15

Requirements for Obtaining Tier 3 Payments

16

SCMs may also qualify for Tier 3 payments of up to $25,000 if they received counseling or

17 therapy as a result of the strip search, were diagnosed with a psychological condition resulting from

18 the strip search, or suffered other significant ill effects from the strip search and provided

19 substantiating documentation in support of their request for Tier 3 payments.

20

The stipulated settlement provides a method by which the Claims Administrator makes a

21 preliminary determination of the value of payments to be made to the SCMs and the parties may

22 review the Administrator’s determination subject to appeal to the Special Master which shall be

23 binding.

24 D. Reduction Categories

25

Amounts payable to SCMs who qualify for payments under Tiers 2 and 3 shall be subject to

26 reduction if the claimant falls into any of the following categories:

27

1. If the SCM owes debt to the County which could be collected by the San Mateo

28

County Tax Collector-Treasurer-Revenue Services for unpaid work furlough fees

PAGE 9 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 10 of 14

1

and/or owed debts to the county of San Mateo or to the state of California for unpaid

2

child support, Tier 2 and 3 payments will be reduced by up to 50% to recover the

3

SCMs’ obligations;

4

2. Awards otherwise payable to an SCM under Tiers 2 and 3 will be reduced by 75%

5

if, within five (5) years preceding the strip search, the SCM was sentenced to and

6

incarcerated in county jail or state prison.

7 E. Proportionate Reduction/Revision

8

If the total value of all SCM claims which are submitted before the Bar Date to be established

9 by the Court exceeds the total amount allocated for payment of class claims, payout for the claims

10 will be reduced proportionately so that the entire amount available is disbursed. If the total value

11 of claims submitted is less than One Million, One Hundred Fifty Thousand Dollars ($1,150,000),

12 the amount remaining in the Payment Fund will revert to defendants.

13 F. Payment to Representative Plaintiffs

14

The named plaintiffs, SHANNON GALLAGHER, ROBERTA BAUCCIO and GRACE

15 CARLAND shall be entitled to a distribution of One Hundred Twenty Thousand Dollars ($120,000)

16 from the Payment Fund of up to One Million, One Hundred Fifty Thousand Dollars ($1,150,000).

17 The distribution to the named plaintiffs shall not be reduced proportionately if the total of all valid

18 claims, including the distribution to the named plaintiffs, exceeds One Million, One Hundred Fifty

19 Thousand Dollars ($1,150,000).

20 G. Process for Claims Submission

21

Following preliminary approval of the proposed settlement by this Court, the parties, through

22 a retained firm1 specializing in class action claim administration, will notify each of the class

23 members of the terms of the proposed settlement and provide each claimant with a claim form to be

24 completed and returned within the specified 90 day period. The Notice and Claim Form, copies of

25 which are attached hereto as Exhibits C and D, direct the SCMs to answer questions on the form 26 which, together with information contained in defendants’ database and substantiating detail

27

28

1 The parties have agreed that Gilardi and Co., LLC will act as Claims Administrators and are requesting the

Court appoint them for that purpose.

PAGE 10 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 11 of 14

1 provided by the SCMs, will determine the level of payment the claimants will receive. The SCMs’

2 responses are supplemental to information contained in the database which will be used to determine

3 eligibility for payment and entitlement to certain additional payments for reasons such as: multiple

4 bookings, age of claimant at time of strip search, and severity of charges.

5

The Claims Administrator will not only mail the Notice and Claim Form to the last known

6 address of each claimant, but will publish a summary form of the Notice in mass media and will

7 make specific attempts to locate persons whose Claim Forms are returned as undeliverable or who

8 are incarcerated, as shown on the database of persons in institutions, jails or prisons within the state

9 of California.

10

Claim Forms will also be available to be downloaded from a website established by the Class

11 Claims Administrator and will be provided by the Claims Administrator or by Class Counsel in

12 response to specific requests for such forms, and furnished to institutions to be distributed to

13 prospective claimants.

14

The Claim Form informs the claimants that Class Counsel will provide assistance to those

15 class claimants who require it if they contact the offices of Class Counsel.

16

Claim Forms received by the Claims Administrator by the cut off date for submission of

17 claims will be examined. Based on the answers provided by the claimant and following comparison

18 with database information, the Claims Administrator will determine the number of points to be

19 assigned to the claim and the value of each claim.

20

Any award to SCMs shall be subject to reduction as stated above. The defendants will

21 provide to the Claims Administrator, with a copy to Class Counsel, a list of all qualified SCMs who

22 have debts owed to the County or to the State in specific identified categories and who submit valid

23 claims, with the amount of the debt owed to the County and/or State specified. The Claims

24 Administrator will then deduct from each SCM’s award the amount of the specified debt owed to

25 the County or to the state, up to the maximums provided in the Stipulation of Settlement. SCMs may

26 submit written objections to reduction for the debts owed to the County or State within 30 days of

27 the date that settlement checks are distributed. Written objections shall specify the grounds for

28 objection and copies shall be sent to Class Counsel and defendants’ counsel. In the event that the

PAGE 11 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 12 of 14

1 SCM, Class Counsel and defense counsel cannot informally resolve the objection, then the objection

2 will be submitted to the Special Master for binding determination.

3 H. Opt Outs

4

In the Notice to the class of the Court’s ruling certifying the Class, SCMs were informed that

5 they could exclude themselves (opt out) of the class by mailing a letter to Class Counsel, postmarked

6 on or before March 31, 2006, requesting exclusion from the class. A copy of the published Notice

7 is attached hereto as Exhibit E. As of March 31, 2006, no persons requested exclusion from the

8 class.

9 I. Settlement Funds for Claimants

10

The total settlement amount for distribution to claimants is One Million, One Hundred Fifty

11 Thousand Dollars ($1,150,000) which shall be allocated to pay verified claims, including One

12 Hundred Twenty Thousand Dollars ($120,000) for the representative plaintiffs who are named

13 plaintiffs in this action who have participated actively in the litigation.

14

If less than the total amount of funds available for payout to SCMs exceeds the value of the

15 verified claims submitted by the Bar Date, the balance of the funds shall revert to defendants.

16 J. Claims Administration Fund

17

Defendants will allocate up to One Hundred Fifty Thousand Dollars ($150,000) to cover the

18 cost of processing and administering the settlement. If the total cost of the claims administration is

19 less than One Hundred Fifty Thousand Dollars ($150,000), the balance of any funds allocated for

20 this purpose will revert to defendants. In addition to Claims Administration costs and expenses, the

21 expenses of the Special Master will be charged to the Claims Administration Fund as expenses 22 relating to Claims Administration.

23 K. Attorneys’ Fees

24

Defendants will allocate Six Hundred Thousand Dollars ($600,000) to pay attorneys fees and

25 costs incurred by Class Counsel for representation of representative plaintiffs and class members.

26 This amount is 31.5% of the total settlement which is within the range of attorney’s fees awarded 27 in similar cases and less than the 33 1/3% specified in Class Counsel’s contingency fee agreements 28 with representative plaintiffs. Payment will be made as follows: Three Hundred Thousand Dollars

PAGE 12 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 13 of 14

1 ($300,000) within 20 days of the Effective Date, and Three Hundred Thousand Dollars ($300,000)

2 upon distribution of settlement funds to claimants. This award is subject to approval of the Court.

3 L. The Settlement is Fair and an Appropriate Method to Resolve this Litigation

4

As a result of the discovery in this action, the parties agree that there were approximately

5 1,000 bookings of SCMs during the Class Period and that all females booked on charges not

6 involving violence, drugs or weapons, or otherwise subject to strip search on reasonable suspicion,

7 who were strip searched prior to arraignment, are entitled to participate in this settlement.

8 Experience from settlement of other class action strip search cases indicates that it is probable that

9 25% of the class or fewer will submit completed Claim Forms. Efforts will be made to locate SCMs

10 whose Claim Forms are returned from the last known address to which they will be mailed.

11

The settlement is structured to compensate persons strip searched at San Mateo County jails

12 at or above the minimum statutory compensation specified in Penal Code § 4030. Persons strip

13 searched multiple times by virtue of multiple bookings during the Class Period, or strip searched at

14 both the Maguire Correctional Facility and Women’s Correction Center during any one booking, will

15 receive additional compensation for up to the first three (3) booking strip searches and may qualify

16 for additional Tier 2 or Tier 3 payments depending upon responses to questions on the Claim Form.

17

The settlement amounts specified herein are in-line with settlements typically paid in class

18 action cases.

19 M. Advantages of Settlement

20

Many of the persons entitled to compensation under this settlement agreement would have

21 difficulty establishing that the damages they suffered exceeded the amounts they will receive under 22 this settlement. Because the value of each claim is minimal, in the absence of this class action

23 settlement, few persons would be expected to come forward to file their own challenges to

24 defendants’ strip search policies and procedures and would receive no compensation.

25

On the other hand, if the matter is not settled and were to proceed through litigation to trial,

26 multiple trials could take years to complete and appeals thereafter would delay ultimate satisfaction 27 of any judgments for several more years making settlement and resolution, as provided in the 28 accompanying documents, desirable, appropriate and just.

PAGE 13 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

Case 4:04-cv-00448-SBA Document 56-1 Filed 02/05/2007 Page 14 of 14

1

V. CONCLUSION

2

For all of the reasons stated herein, represented in the attached documents, and presented at

3 the hearing on this request for preliminary approval of the settlement, the parties jointly request the

4 court to sign the accompanying order to give preliminary approval to the Stipulation of Settlement,

5 to appoint the Honorable Raul Ramirez as Special Master, and to designate Gilardi and Company

6 as the Claims Administrator, so that the process of notifying the class members, receiving and

7 reviewing the submitted Claim Forms, finally approving the settlement and effectuating the

8 settlement can proceed.

9 DATED: February 5, 2007

Respectfully submitted,

10

LAW OFFICE OF MARK E. MERIN and

CASPER, MEADOWS, SCHWARTZ & COOK 11

12 13 14 15 DATED: February 5, 2007 16 17

/s/ - “Mark E. Merin” _________________________________________ Mark E. Merin Attorneys for Plaintiffs
Respectfully submitted,
PORTER, SCOTT, WEIBERG & DELEHANT and THOMAS F. CASEY III, County Counsel

18

/s/ - Terence J. Cassidy”

_________________________________________

19

Terence J. Cassidy

Attorneys for Defendants

20

21

22

23

24

25

26

27

28

PAGE 14 OF 14

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

STIPULATED MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT CLASS AND SETTLEMENT OF CLASS ACTION

 
 Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 1 of 8

1 LAW OFFICE OF MARK E. MERIN
Mark E. Merin, SBN. 043849 2 2001 P Street, Suite 100
Sacramento, California 95814 3 Telephone: (916) 443-6911
Facsimile: (916) 447-8336 4

CASPER, MEADOWS, SCHWARTZ & COOK 5 Andrew Charles Schwartz, SBN 064578

6

2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596

7 Telephone: (925) 947-1147 Facsimile: (925) 947-1131

8 Attorneys for Plaintiffs
9 THOMAS F. CASEY III, COUNTY COUNSEL, SBN 47562
10 Carol L. Woodward, Deputy, SBN 084197 Hall of Justice and Records
11 400 County Center, 6th Floor Redwood City, CA 94063
12 Telephone: (650) 363-4746 Facsimile: (650) 363-4034
13
PORTER, SCOTT, WEIBERG & DELEHANT 14 Terence J. Cassidy, SBN 99180
P.O. Box 255428 15 Sacramento, CA 95865 16 Telephone: (916) 929-1481
Facsimile: (916) 927-3706

17 Attorneys for Defendants
18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21 SHANNON GALLAGHER, ROBERTA BAUCCIO, GRACE CARLAND, and all others

CASE NO: C 04-0448 SBA

22 similarly situated,

Plaintiffs,

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF

23 vs.

CLASS ACTION [PROPOSED]

24

DATE:

April 3, 2007

COUNTY OF SAN MATEO, SAN MATEO

TIME:

1:00 p.m.

25 COUNTY SHERIFF’S DEPARTMENT; SAN

CTRM: 3

MATEO COUNTY SHERIFF DON HORSLEY, in JUDGE: Hon. Saundra Brown

26 his individual and official capacity; SAN MATEO

Armstrong

COUNTY SHERIFF’S DEPUTIES DOES 1 27 THROUGH 100; and DOES 1 THROUGH 150,

INCLUSIVE, et al., 28

Defendants.

PAGE 1 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 2 of 8

1

WHEREAS, plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO, and GRACE

2 CARLAND, on behalf of themselves and all persons similarly situated, by and through their

3 attorneys, Mark E. Merin of the Law Office of Mark E. Merin and Andrew C. Schwartz of

4 Casper, Meadows, Schwartz & Cook, and defendants, COUNTY OF SAN MATEO, SAN

5 MATEO COUNTY SHERIFF’S DEPARTMENT and SAN MATEO COUNTY SHERIFF DON

6 HORSLEY, by and through their counsel, Thomas F. Casey, III, County Counsel, Carol L.

7 Woodward, Deputy County Counsel and Terence J. Cassidy of the law firm Porter, Scott,

8 Weiberg & Delehant, have entered into a Stipulation of Settlement intending to resolve all claims

9 raised in this class action pending in this Court;

10

WHEREAS, the Stipulation of Settlement, together with the supporting materials, sets

11 forth the terms and conditions for a proposed settlement and dismissal with prejudice of the

12 pending above-captioned class action against all defendants;

13

WHEREAS, the Court has before it and has reviewed the parties’ Stipulated Motion for

14 Preliminary Approval of Settlement of Class Action together with the Stipulation of Settlement

15 and supporting materials; and

16

WHEREAS, the Court is satisfied that the terms and conditions set forth in the

17 Stipulation of Settlement were the result of good faith, arms’ length settlement negotiations

18 between competent and experienced counsel for both plaintiffs and defendants, after mediation

19 before both Chief Magistrate Judge James Larson and the Honorable Raul Ramirez (Retired);

20

IT IS HEREBY ORDERED AS FOLLOWS:

21 I. PRELIMINARY APPROVAL OF SETTLEMENT

22

1. The terms of the Stipulation of Settlement are hereby preliminarily approved,

23

subject to further consideration thereof at the Fairness Hearing provided for

24

below. The Court finds that the settlement is sufficiently within the range of

25

reasonableness and that notice of the proposed settlement should be given as

26

provided in this Order.

27

2. The Court further finds that plaintiffs SHANNON GALLAGHER, ROBERTA

28

BAUCCIO, and GRACE CARLAND are adequate class representatives for the

PAGE 2 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 II. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

settlement class.
3. The Court further finds that plaintiffs’ counsel Mark E. Merin of the Law Office
of Mark E. Merin and Andrew C. Schwartz of Casper, Meadows, Schwartz and
Cook are adequate class counsel.
4. The Court approves the Notice of Proposed Settlement of Class Action Strip
Search Case attached hereto as Exhibit A and further approves the method by
which notice is proposed to be given.
5. If, pursuant to the terms of the Stipulation of Settlement, the settlement is not
consummated, the preliminary approval of the Stipulation of Settlement shall be
void and the parties shall have reserved all of the rights to continue with any
litigation or further mediation or settlement discussions.
6. The Bar Date, as defined in paragraph 2 of the Stipulation of Settlement shall be
____________________.
NOTICE TO SETTLEMENT CLASS MEMBERS, APPROVAL OF CLASS COUNSEL, AND EMPLOYMENT OF CLASS CLAIM ADMINISTRATOR
7. Counsel for the class (“class counsel”) are as follows:
Mark E. Merin, Esq. Law Office of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443-6911 - Telephone (916) 447-8336 - Facsimile
Andrew Charles Schwartz, Esq. Casper, Meadows, Schwartz & Cook 2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 - Telephone (925) 947-1131 - Facsimile
8. Counsel for defendants are as follows:
Thomas F. Casey, III, County Counsel Carol L. Woodward, Deputy County Counsel Hall of Justice and Records 400 County Center, 6th Floor Redwood City, CA 94063 (650) 363-4746 - Telephone (650) 363-4034 - Facsimile

PAGE 3 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 4 of 8

1

Terence J. Cassidy, Esq.

Porter Scott Weiberg & Delehant

2

P.O. Box 255428

Sacramento, CA 95865

3

(916) 929-1481- Telephone

(916) 927-3706 - Facsimile

4

9. Class Claims Administrator is as follows:

5

Gilardi and Company, LLC

6

3301 Kerner Blvd

San Rafael, CA 94901

7

(415) 461-0410 - Telephone

(800) Toll Free Number to be arranged.

8

(415) 461-0412 - Facsimile

9

10. Beginning no later than 30 days from the date of this Order, counsel for the parties

10

acting with the Class Claims Administrator shall cause to be disseminated the

11

Notice and Claim Form, substantially in the form attached hereto as Exhibits A

12

and B, in the manner set forth in paragraphs 58 through 63 of the Stipulation of

13

Settlement. Such summary notice as the parties agree will be published in

14

accordance with the Stipulation of Settlement and announcements following a

15

script approved by the parties will be made on such radio stations with the

16

frequency provided in the Stipulation of Settlement. Class members will have up

17

to and including [four months from date of Court Order on a date certain to be

18

inserted?], in which to object to this settlement or file claims. Prior to the

19

Fairness Hearing, the Claims Administrator shall file and serve a sworn statement

20

attesting to compliance with the provisions of this paragraph.

21

11. The notice to be provided as set forth in the Stipulation of Settlement is hereby

22

found to be the best means practicable of providing notice under the

23

circumstances and, when completed, shall constitute due and sufficient notice of

24

the proposed settlement and of the Fairness Hearing to all persons and entities

25

affected by and/or entitled to participate in the settlement, in full compliance with

26

applicable statutes and Constitution of the state of California, due process, the

27

Constitution of the United States and all other applicable laws. The notices are

28

accurate, objective, informative and provide class members with all of the

PAGE 4 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 5 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 III. 18 19 20 21 22 23 24 25 26 27 28

necessary information to make an informed decision regarding their participation in the settlement and its fairness. 12. Counsel for the respective parties are authorized to retain Gilardi and Company, LLC, 3301 Kerner Blvd, San Rafael, CA 94901, as Class Claims Administrator in accordance with the Stipulation of Settlement and this Order. 13. Members of the Settlement Class were given an opportunity to be excluded (“opt out”) from the Settlement Class by filing their request to be excluded on or before March 31, 2006. No persons have elected to exclude themselves by filing requests for exclusion. 14. Members of the Settlement Class who did not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of this Stipulation of Settlement, including but not limited to the releases, waivers, and covenants described in the Stipulation of Settlement, whether or not such person object to the settlement and whether or not such person made a claim upon or participated in the Settlement Fund created pursuant to the Stipulation of Settlement. THE FAIRNESS HEARING 15. A hearing on final approval, the “Fairness Hearing,” is hereby scheduled to be held before this Court on ______[seven months from date of Court Order]___________, at _____ a.m., to consider the fairness, reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action complaint with respect to the released parties herein, and the entry of final judgment in the class action. Class counsels’ application for award of attorneys’ fees and costs shall be heard at the time of the Fairness Hearing. 16. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the settlement class other than that which may be issued by the Court.

PAGE 5 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 6 of 8

1

17. Any person who did not elect to be excluded from the settlement class may, but

2

need not, enter an appearance through his or her own attorney. Settlement class

3

members who do not enter an appearance through their own attorneys will be

4

represented by class counsel.

5

18. Any person who did not elect to be excluded from the settlement class may, but

6

need not, submit comments or objections to the proposed settlement. Any class

7

member may object to the proposed settlement, entry of the final order and

8

judgment approving the settlement, and class counsels’ application for fees and

9

expenses by filing and serving a written objection.

10

19. Any class member making the objection (an “objector”) must sign the objection

11

personally. Any objection must state why the objector objects to the proposed

12

settlement and provide the basis to support such position. If an objector intends to

13

appear personally at the Fairness Hearing, the objector must include with the

14

objection a notice of the objector’s intent to appear at the hearing.

15

20. Objections, along with any notice of intent to appear, must be filed with the Court

16

no later than _____________. If counsel is appearing on behalf of more than one

17

class member, counsel must identify each such class member and each class

18

member must have complied with the requirements of this order. The documents

19

must be filed with the clerk of the Court at the following address: United States

20

District Court, Northern District of California, 1301 Clay Street, Courtroom 3,

21

Oakland, California 94612.

22

21. Objections, along with any notice of intent to appear, must also be mailed to class

23

counsel and counsel for defendants at the addresses listed below:

24

Counsel for the class (“class counsel”) are as follows:

25

Mark E. Merin, Esq.

Law Office of Mark E. Merin

26

2001 P Street, Suite 100

Sacramento, CA 95814

27

(916) 443-6911 - Telephone

(916) 447-8336 - Facsimile

28

PAGE 6 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 7 of 8

1

Andrew Charles Schwartz, Esq.

Casper, Meadows, Schwartz & Cook

2

2121 N California Boulevard, Suite 1020

Walnut Creek, CA 94596

3

(925) 947-1147 - Telephone

(925) 947-1131 - Facsimile

4

Counsel for defendants are as follows:

5

Thomas F. Casey, III, County Counsel

6

Carol L. Woodward, Deputy County Counsel

Hall of Justice and Records

7

400 County Center, 6th Floor

Redwood City, CA 94063

8

(650) 363-4746 - Telephone

(650) 363-4034 - Facsimile

9 Terence J. Cassidy, Esq.

10

Porter Scott Weiberg & Delehant

P.O. Box 255428

11

Sacramento, CA 95865

(916) 929-1481- Telephone

12

(916) 927-3706- Facsimile

13

22. Only class members who have filed and served valid and timely notices of

14

objection shall be entitled to be heard at the Fairness Hearing. Any class member

15

who does not timely file and serve an objection in writing to the settlement, entry

16

of final order and judgment, or to class counsels’ application for fees and

17

expenses, in accordance with the procedure set forth in the class notice and

18

mandated in the order, shall be deemed to have waived any such objection by

19

appeal, collateral attack, or otherwise.

20

23. Persons wishing to be heard at the Fairness Hearing are required to file written

21

comments or objections and indicate in their written comments or objections their

22

intention to appear at the Fairness Hearing. Settlement class members need not

23

appear at the hearing or take any other action to indicate their approval.

24

24. All members of the settlement class who did not timely request to be excluded

25

from the class are enjoined from proceeding against the defendants until such time

26

as the Court renders a final decision regarding approval of the settlement and, if

27

the settlement is approved, enters final judgment as provided in the Stipulation of

28

Settlement.

PAGE 7 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 55-2 Filed 02/05/2007 Page 8 of 8

1 V. OTHER PROVISIONS

2

25. Upon approval of the settlement provided for in the Stipulation of Settlement,

3

each and every term and provision thereof shall be deemed incorporated herein as

4

if expressly set forth and shall have the force and effect of an order of this Court.

5

26. The Honorable Raul Ramirez, United States District Court Judge, retired, is

6

hereby appointed to serve as Special Master to review and resolve certain disputes

7

which may arise pursuant to the terms of the Stipulation of Settlement.

8

27. All reasonable costs incurred in notifying members of the settlement class as well

9

as administering the Stipulation of Settlement shall be paid as set forth in the

10

Stipulation of Settlement.

11

IT IS SO ORDERED.

12 DATED: _________________ 13 14

________________________________________________ HON. SAUNDRA BROWN ARMSTRONG JUDGE OF THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PAGE 8 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

 
 Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 1 of 54
EXHIBIT B
Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 2 of 54

1 LAW OFFICE OF MARK E. MERIN
Mark E. Merin, SBN. 043849 2 2001 P Street, Suite 100
Sacramento, California 95814 3 Telephone: (916) 443-6911
Facsimile: (916) 447-8336 4

CASPER, MEADOWS, SCHWARTZ & COOK 5 Andrew Charles Schwartz, SBN 064578

6

2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596

7 Telephone: (925) 947-1147 Facsimile: (925) 947-1131

8 Attorneys for Plaintiffs
9 THOMAS F. CASEY III, COUNTY COUNSEL, SBN 47562
10 Carol L. Woodward, Deputy, SBN 084197 Hall of Justice and Records
11 400 County Center, 6th Floor Redwood City, CA 94063
12 Telephone: (650) 363-4746 Facsimile: (650) 363-4034
13
PORTER, SCOTT, WEIBERG & DELEHANT 14 Terence J. Cassidy, SBN 99180
P.O. Box 255428 15 Sacramento, CA 95865 16 Telephone: (916) 929-1481
Facsimile: (916) 927-3706

17 Attorneys for Defendants
18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21 SHANNON GALLAGHER, ROBERTA

CASE NO: C 04-0448 SBA

BAUCCIO, GRACE CARLAND, and all others

22 similarly situated,

Plaintiffs,

STIPULATION OF SETTLEMENT

23 vs.

24 COUNTY OF SAN MATEO, SAN MATEO
25 COUNTY SHERIFF’S DEPARTMENT; SAN

MATEO COUNTY SHERIFF DON HORSLEY,

26 in his individual and official capacity; SAN

MATEO COUNTY SHERIFF’S DEPUTIES

27 DOES 1 THROUGH 100; and DOES 1

THROUGH 150, INCLUSIVE, et al.,

28

Defendants.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

PAGE 1 OF 18 STIPULATION OF SETTLEMENT

USDC, Northern District, Case No. C 04-0448 SBA

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 3 of 54

1

Plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO, and GRACE CARLAND,

2 individually and on behalf of the settlement class defined herein, and Defendants COUNTY OF SAN

3 MATEO, SAN MATEO COUNTY SHERIFF’S DEPARTMENT, and SAN MATEO COUNTY

4 SHERIFF DON HORSLEY (hereinafter referred to as “Parties”), by and through their respective

5 counsel, hereby submit the following Stipulation of Settlement.

6

I.

7

RECITALS

8

On or about February 3, 2004, plaintiff SHANNON GALLAGHER filed a class action

9 complaint against Defendants, amended on July 18, 2006, to add Plaintiffs ROBERTA BAUCCIO

10 and GRACE CARLAND as additional representative Plaintiffs, challenging the Defendants’ policy

11 of strip searching persons, prior to arraignment, who were arrested on charges not involving

12 violence, drugs or weapons.

13

The Parties entered into extensive discovery which included exchange of documents,

14 preparation of and responses to request for production of documents, interrogatories and depositions.

15

Effective December 2, 2003, Defendants revised their strip search policies to eliminate

16 automatic, blanket strip searches of women housed in the Women’s Correctional Center prior to

17 arraignment. They also revised their practice to ensure that women arrested on felony charges were

18 not subject to blanket strip searches at the Maguire Correctional Facilityunless there was individual,

19 reasonable suspicion for such strip search based upon the arrest charge or other factors. A copy of

20 Defendants’ revised policies is attached hereto as Exhibit 1.

21

Plaintiffs moved for class certification and, on October 28, 2005, the Honorable Saundra

22 Brown Armstrong issued her Order certifying the action to proceed as a class action with the classes

23 defined as follows:

24

a. For the federal claim ("Class One"):

25

All women who, from February 3, 2002 to December 2, 2003, were arrested on any

26

charge (including felonies) not involving weapons, controlled substances, or

27

violence, and not involving a violation of parole or a violation of probation (where

28

consent to search is a condition of such probation), and who were subjected to a

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

PAGE 2 OF 18 STIPULATION OF SETTLEMENT

USDC, Northern District, Case No. C 04-0448 SBA

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 4 of 54

1

uniform and indiscriminate (blanket) strip/visual body cavity search by defendants

2

before arraignment at the San Mateo County Jail without any individualized

3

reasonable suspicions that they were concealing contraband. This class also includes

4

all female arrestees who were subjected to subsequent blanket strip search before

5

arraignment after the initial strip/visual body cavity search without any reasonable

6

individualized suspicion that they had subsequently acquired and hidden contraband

7

on their persons.

8

b. For the state law claim ("Class Two"):

9

All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on

10

an infraction or misdemeanor charge and brought to the San Mateo County Jail and

11

who were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity

12

search before arraignment without written supervisorial authorization, as required

13

under California Penal Code § 4030(f).

14

On December 16, 2005, and again on April 5, 2006, the Parties met with Chief Magistrate

15 Judge James Larson in an attempt to mediate resolution of their dispute. That attempt was

16 unsuccessful and the Parties continued to litigate the matter until August 15 and 16, 2006, when they

17 participated in further mediation sessions presided over by the Honorable Raul A. Ramirez (retired).

18 Thereafter, the Parties continued their negotiations and, finally, agreed to this Stipulation of

19 Settlement which, subject to the approval of the Court, settles this action in the manner and upon the

20 terms set forth below and fully resolves the dispute.

21

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the

22 Parties as follows:

23

II.

24

DEFINITIONS

25 1. “Administrator” means Gilardi and Co., LLC, P.O. Box 1110, Corte Madera, CA 94976-

26

1110, to be appointed by the Court to provide notice to the members of the class and to

27

review and determine the validity and value of claims submitted by Settlement Class

28

Members (“SCMs”), according to the procedures set forth herein.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

PAGE 3 OF 18 STIPULATION OF SETTLEMENT

USDC, Northern District, Case No. C 04-0448 SBA

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1 2. 2 3 4 3. 5 4. 6 7 5. 8 9 10 11 6. 12 13 14 15 7. 16 8. 17 18 19 20 21 9. 22 23 24 25 10. 26 27 28

The “Bar Date” is the date established by the Court by which any SCM who wishes to receive payment pursuant to the Stipulation of Settlement must file her Claim Form(s) or objections to this Stipulation of Settlement. “Charge List” means the list of charges attached hereto as Exhibit 2. The “Claim Form” is the form required to be used to make a claim for payment under this settlement. A copy of the proposed Claim Form is attached hereto as Exhibit 3. “Class Counsel” means The Law Office of Mark E. Merin, and Mark E. Merin, attorney, 2001 P Street, Suite 100, Sacramento, CA 95814, and Casper, Meadows, Schwartz & Cook, and Andrew C. Schwartz, attorney, 2121 North California Blvd., Suite 1020, Walnut Creek, CA 94596. The “Class Notice” means the notice in the form attached hereto as Exhibit 4 (Notice by Mail); such other summary notice(s) to be published in newspapers serving the San Mateo County area and posted in the Maguire Correctional Facility and the Women’s Correctional Center in Redwood City, San Mateo County, California. The “Class Period” is February 3, 2002, through and including December 2, 2003. The “Database” is the information provided in hard copy and/or electronic form by Defendants to the Administrator and to Class Counsel which includes, to the extent practicable, the name, last known addresses, date of birth, social security number, date(s) of booking, charge(s) and information reflecting whether the SCM was on searchable probation at the time of booking of all SCMs arrested during the Class Period. “Debts Owed to the County” shall mean any financial obligation which would be collected by the San Mateo County Tax Collector - Treasurer - Revenue Services, any Debt Owed to the County of San Mateo for unpaid work furlough fees and/or any Debt Owed to the County of San Mateo or State of California for unpaid child support. The “Effective Date” means the date upon which a judgment entered by the Court approving the Stipulation of Settlement becomes final. The judgment shall be deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for Writ of Certiorari.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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“Non-VDW Offense” means a offense not listed on the Charge List. An “Opt-Out” is any potential Settlement Class Member who filed a timely request for exclusion as specified in Paragraph 64. “Released Persons” means the Defendants and their predecessors, successors, and/or assigns, together with past, present, and future officials, employees, representatives, attorneys and/or agents of the County of San Mateo. The “Settlement Class” means all of those persons who are members of the following defined class and/or sub-classes who, were booked at San Mateo County Maguire Correctional Facility and strip searched prior to arraignment. a. For the federal claim ("Class One"):
All women who, from February 3, 2002 to December 2, 2003, were arrested on any charge (including felonies) not involving weapons, controlled substances, or violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and who were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity search by defendants before arraignment at the San Mateo County Jail without any individualized reasonable suspicions that they were concealing contraband. This class also includes all female arrestees who were subjected to subsequent blanket strip search before arraignment after the initial strip/visual body cavity search without any reasonable individualized suspicion that they had subsequently acquired and hidden contraband on their persons. b. For the state law claim ("Class Two"): All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on an infraction or misdemeanor charge and brought to the San Mateo County Jail and who were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity search before arraignment without written supervisorial authorization, as required under California Penal Code § 4030(f).

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

PAGE 5 OF 18 STIPULATION OF SETTLEMENT

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A “Settlement Class Member” (“SCM”) means any member of the Settlement Class, as defined in Paragraph 14, including representatives, successors and assigns, who did not file a valid and timely Request for Exclusion as provided in Paragraph 64 of this Stipulation of Settlement. “Special Master” shall mean the person appointed by the Court to preside over this Stipulation of Settlement. The Special Master shall have power to make decisions in all matters pertaining to administration and enforcement of the Stipulation of Settlement, subject to review by the Court upon request of any party. The Parties have agreed upon the Honorable Raul A. Ramirez (United States District Judge, Ret.) to serve as Special Master. This Stipulation of Settlement is for settlement purposes only, and neither the fact of, nor any provision contained in this Stipulation of Settlement or its exhibits, nor any action taken hereunder shall constitute, be construed as, or be admissible in evidence as any admission of the validity of any claim or any fact alleged by Plaintiffs or SCMs in this action or in any other pending action or of any wrongdoing, fault, violation of law, or liability of any kind on the part of Defendants or admission by Defendants of any claim or allegation made in this action or in any other action, nor as an admission by any of the Plaintiffs, SCMs or Class Counsel of the validity of any fact or defense asserted against them in this action or in any other action. Defendants deny all allegations of wrongdoing and deny any liability to Plaintiffs or to any other Class Members. The Parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the terms of this settlement, subject to the approval of the Court.
III. TERMS AND EFFECT OF STIPULATION OF SETTLEMENT On or about the Effective Date, the parties will submit all appropriate papers to dismiss Case No. C 04-0448 SBA in United States District Court for the Northern District of California. SCMs who comply with the requirements set forth in this Stipulation of Settlement will be paid specified sums determined by the procedures set forth herein in full satisfaction of all claims.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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The Stipulation of Settlement, as of the Effective Date, resolves in full all claims against the Released Persons by all of the SCMs, including the named Plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO and GRACE CARLAND, involving violation of their Fourth Amendment rights or of any other federal, state or local law, regulation, duty, or obligation which are based upon or could be based upon or arise from the facts alleged in Case No. C 04-0448 SBA filed in the United States District Court for the Northern District of California. When this Stipulation of Settlement is final, as of the Effective Date, all SCMs, including the named Plaintiffs, hereby release all such claims. The Parties agree that the Court, following its preliminary approval of this Stipulation of Settlement, shall retain exclusive and continuing jurisdiction of the action, Parties, SCMs, Special Master and the Administrator to interpret and enforce the terms, conditions, and obligations under this agreement. This is a full and final Release applying to all unknown and unanticipated injuries, deaths or damages arising out of the events described in Section I as well as those not known or disclosed, the named Plaintiffs and each SCM waives all rights or benefits which she now has or in the future may have under the terms of California Civil Code section 1542, which reads:
“A general release does not extend to claims which the creditor does not know or suspect to exists in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” As of the Effective Date of this Stipulation of Settlement, the SCMs, including the named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency or other tribunal, or to file any complaint with regard to acts of commission or omission by the Released Persons respecting such SCMs with respect to any strip search by Defendants during their confinement in Maguire Correctional Facility or the Women’s Correctional Center which occurred during the Class Period.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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This Stipulation of Settlement contains all the terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant proceeding, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except as expressly provided herein. Each SCM shall be deemed to have submitted to the jurisdiction of the Court. No Opt-Out shall share in any monetary benefits provided by this Stipulation of Settlement. The agreement is subject to and conditioned upon the final approval of this Stipulation of Settlement and the issuance of the final order and judgment of dismissal, by the United States District Court for the Northern District of California, providing the below specified relief, which relief shall be pursuant to the terms and conditions of this Stipulation of Settlement and the Parties’ performance of their continuing rights and obligations hereunder. The order and judgment will be deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari. Such final order and judgment shall: a. Dismiss with prejudice all complaints in the action as to the Released Persons; b. Order that all SCMs are enjoined from asserting against any Released Person, any
and all claims which the SCMs has, had, or may have in the future arising out of the facts alleged in the related complaints; c. Release each Released Person from the claims which any SCM has, had or may have in the future, against such Released Person arising out of the facts alleged in the related complaints; d. Determine that this Stipulation of Settlement is entered into in good faith, is reasonable, fair and adequate, and is in the best interest of the Class; and e. Reserve the Court’s continuing and exclusive jurisdiction over the Parties to this Stipulation of Settlement, including Defendants and all SCMs, to administer, supervise, construe and enforce the Stipulation of Settlement in accordance with the terms for the mutual benefit of all the Parties.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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1 28. 2 3 4 5 6 7 8 29. 9 10 11 12 13 14 15 16 17 18 19 20 30. 21 22 23 24 25 26 31. 27 28

The Parties will take all necessary and appropriate steps to obtain preliminary approval of the Stipulation of Settlement, final approval of the settlement, and dismissal of the actions with prejudice. If the Court finally approves this Stipulation of Settlement, and if there is an appeal from such decision, the Defendants will actively cooperate with Plaintiffs in joint efforts to defend the Stipulation of Settlement.
IV. RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES The Settlement Fund which shall be used to pay all claims of SCMs, administrative costs and attorneys’ fees shall not be more than $1,900,000 (One Million, Nine Hundred Thousand Dollars). The total settlement amount will be divided into three separate amounts: (1) up to $1,150,000 (One Million, One Hundred Fifty Thousand Dollars) will be allocated to pay verified claims; (2) $600,000 (Six Hundred Thousand Dollars) will be allocated for “attorneys’ fees” for fees and costs incurred by Class Counsel; and (3) up to $150,000 (One Hundred Fifty Thousand Dollars) will be allocated to the “administration fund” to cover the costs of claims administration to process and administer the settlements. If the total amount of all valid claims, including the distribution to the named plaintiffs as set forth in Paragraph 30 exceeds $1,150,000 (One Million, One Hundred Fifty Thousand Dollars), the amount payable to SCMs for each claim shall be reduced proportionately as set forth in Paragraph 63. The named Plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO, and GRACE CARLAND shall be entitled to a distribution of $120,000 (One Hundred Twenty Thousand Dollars) from the payment fund of up to $1,150,000 (One Million, One Hundred Fifty Thousand Dollars) to pay verified claims. The distribution to the named plaintiffs shall not be reduced proportionately if the total of all valid claims, including the distribution to the named plaintiffs, exceeds $1,150,000 (One Million, One Hundred Fifty Thousand Dollars). No payment shall be made to eligible SCMs before the Effective Date. Claims may be processed between the date of preliminary Court approval and the Effective Date. Claims will only be paid after all verified Claims have been calculated and all disputes relating to

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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Claims have been resolved. Once all verified claims have been calculated and all disputes relating to claims have been resolved, then the Claims Administrator will provide Class Counsel and Counsel for Defendants with the calculations and total amount to be paid to SCMs. Thereafter, the County or its designee will cause that amount, up to a total of $1,150,000 (One Million, One Hundred Fifty Thousand Dollars), to be placed in an account designated by the Claims Administrator. The Claims Administrator will then disburse all appropriate amounts to SCMs, including the representative Plaintiffs. No payment shall be paid to Class Counsel for fees and costs before the Effective Date as more fully described in Paragraph 68. The Parties agree to make an application to the Court to appoint the Claims Administrator as an officer of the Court for the purpose of implementing the terms of the Stipulation of Settlement. The Administrator shall be subject to judicial immunity to the fullest extent permitted by law.
V. PROCEDURES FOR RECEIVING PAYMENT UNDER THIS SETTLEMENT AGREEMENT All SCMs upon return of a verified Claim Form shall, for each booking up to a maximum of three (3) bookings, receive the following payments:
Tier 1 Payments The Administrator will determine the amount of each Tier 1 payment based on the SCM’s responses to the Claim Form and the database provided by the County. a. If they were booked into McGuire Correctional Facility and transferred to the
Women’s Correctional Center, prior to arraignment, a base sum of $2,500; b. If they were booked and released from McGuire Correction Facility, without being
transferred to the Women’s Correctional Center, a base payment of $1,250.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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VI.

PROCEDURES GOVERNING CLAIMS OF SETTLEMENT

CLASS MEMBERS WHO SEEK PAYMENT ABOVE TIER 1

SCMs who seek more than the basic payments provided pursuant to Tier 1 shall have their

claims determined in accordance with the criteria set forth below relating to Tiers 2 and 3.

Requirements for Being Considered for Tier 2 Payments

In order to be considered for a Tier 2 payment, the SCM must answer applicable questions

1 through 5 in the Claim Form and provide substantiating detail in accordance with the

instructions in the Claim Form.

The Administrator will determine the amount of each Tier 2 payment based upon a point

allocation resulting from the Administrator’s review of the SCM’s responses to questions 1

through 5 in the Claim Form, and the substantiating detail provided by the SCM, subject to

reduction as set forth in Paragraphs 54-57.

Points, as designated below, will be awarded if information in the database provided to the

Administrator by Defendants, and SCM’s responses to questions and/or substantiating detail

show the following:

C The SCM was under age 21 or over age 60

2 points

C The SCM had a physical or mental disability

at the time of search

2 points

C The SCM was pregnant at the time of search

2 points

C The SCM was required to remove religious garments,

piercings in a private area, or hair extensions during search

2 points

C The SCM was menstruating at time of search

4 points

Each SCM shall be awarded $250 (Two Hundred Fifty Dollars) for each verified point.

However, no SCM may receive an award in Tier 2 of more than $3,000 (Three Thousand

Dollars) regardless of the total number of points awarded in Tier 2.

The Administrator will review the responses to questions 1 through 5 submitted by the SCM

based on a set criteria agreed upon by Class Counsel and counsel for Defendants. The

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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Defendants may challenge the information and/or substantiating detail submitted by an SCM in support of answers to questions 1 through 5 in the Claim Form. In the event Defendants challenge a submission, or the Administrator cannot determine if an SCM has sufficiently met the criteria for a Tier 2 category, the matter will be resolved by a two step process. First, counsel for Defendants and Class Counsel will attempt to resolve the matter by meet and confer conference. Any agreement between counsel shall be binding on the SCM. In the event counsel cannot resolve the matter, the Magistrate Judge/Special Master will review the claim and make the final determination. The Special Master may be present at the meet and confer conference and make a final determination at that time. Tier 2 awards will be in addition to the basic award under Tier 1.
Requirements for Obtaining Tier 3 Payments SCMs participating in Tier 3 must complete and execute the Claim Form. Additionally, an SCM participating in Tier 3 must provide all documentation requested in support of a Tier 3 award including, but not limited to, medical documentation and authorizations for release of all applicable medical and psychiatric records. Tier 3 awards will be determined based upon the agreed upon criteria for evaluating all of the following which are available: (i) Any documentation provided by the SCM, including but not limited to the SCM’s medical and/or psychological records; (ii) Statements submitted under penalty of perjury. The Administrator will review the records and documents submitted, determine if the SCM is entitled to a Tier 3 award and make an appropriate award. In the event Defendants challenge a submission, or the Administrator cannot determine if an SCM has sufficiently met the criteria for a Tier-3 category, the matter will be resolved by a two-step process. First, Counsel for Defendant and Class Counsel will attempt to resolve the matter by meet and confer conference. Any agreement between counsel shall be binding on the SCM. In the event counsel cannot resolve the matter, the Special Master will review the claim and make the final determination. The Special Master may be present at the meet and confer conference and make a final determination at that time.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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If the Defendants challenge any Tier 3 award, which is above the minimum, they may require the Tier 3 claimant to submit to a deposition and/or agreed medical evaluation (“AME”) paid for by the Defendants. Following the deposition and/or AME, the additional information relating to the challenged Tier 3 claims will be submitted to the Special Master for decision. The Special Master shall determine whether the SCM’s certified records, deposition testimony, psychological examination, and other material in the Administrator’s record of the Tier 2 determination show that it is more likely than not that the Tier 3 SCM suffered mental or emotional distress that was proximately caused by the strip search. The demonstrated emotional distress must be greater or last longer than would normally be expected for persons exposed to the factors identified by the SCM in response to Tier 2 questions. If the Special Master’s analysis of the certified medical records, psychological records and/or the deposition show that the SCM has not experienced the requisite injury, the SCM will receive only the minimum Tier 3 payment for which the SCM qualifies. If the Special Master determines that the SCM sought therapy as a result of the strip search, the Tier 3 award may be between $2,500 (Two Thousand, Five Hundred Dollars) and $5,000 (Five Thousand Dollars). In order to qualify for this award, the SCM must have attended the first therapy session within 90 days of the strip search. Additionally, in order to receive more than $2,500 (Two Thousand, Five Hundred Dollars), the SCM must have attended three (3) or more therapy sessions as a result of the strip search. The amount determined shall be in the sole discretion of the Special Master. Neither Party shall have the right to appeal an award under this paragraph to the District Court. If the Special Master determines that the SCM was diagnosed with a psychological injury as a result of the strip search, the Tier 3 award may be between $7,500 (Seven Thousand, Five Hundred Dollars) and $25,000 (Twenty-Five Thousand Dollars). In order to recover under this paragraph, the SCM must have attended the first therapy session or medical appointment within 90 days of the strip search, and have attended a total of no less than 5 (five) therapy sessions or medical appointments. Neither Party shall have the right to appeal an award

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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under this paragraph to the District Court. If the Special Master determines, by a preponderance of evidence, that the SCM has suffered other significant ill effects as a result of the strip search, he may award between $0 (Zero Dollars) and $25,000 (Twenty-Five Thousand Dollars) to the SCM. In order to recover an award under this paragraph, the SCM must show that the strip search has harmed her in a manner not contemplated in Tier 2 or the categories that support other recovery in Tier 3. If the SCM fails, without good cause, to provide all required records and/or authorizations, fails to appear for a scheduled deposition or examination, or otherwise fails to comply with orders of the Special Master, she will receive no Tier 3 payment. The Administrator, upon the request of the Special Master, may communicate with SCMs to obtain all authorizations and records and to schedule examinations and depositions. Tier 3 payments will be in addition to any payments awarded pursuant to Tiers 1 and 2. Tier 1 to 3 awards may be combined for a maximum payment of $30,500 (Thirty Thousand Five Hundred Dollars).
VII. REDUCTION CATEGORIES The amounts payable to an SCM under Tiers 2 and 3 shall be subject to the reduction categories set forth below. The County will exercise right to recover up to 50% of the awards under Tiers 2 and 3 for any Debts Owed to the County as described in Paragraph 9. An award otherwise payable to an SCM under Tiers 2 and 3 will be reduced by 75% (seventy-five percent) if, within 5 (five) years preceding the strip search, the SCM was sentenced to and incarcerated in County Jail or State Prison. This reduction will apply if SCM responds affirmatively to question 6 on the Claim Form or the appropriate database established that a SCM was sentenced and incarcerated as described. The Claims Administrator will provide a database of all SCMs who submit a Claim Form that identifies each SCM and the maximum Tier awards to Defendants in order permit Defendants to determine whether a payment to an SCM is subject to any reduction

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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categories. If Defendants determine that a payment to an SCM is subject to a reduction category, then it will provide the necessary information to the Claims Administrator so that the reduction may be applied. In the event an SCM owes a debt to the County of San Mateo, as defined in Paragraph 9, then the Claims Administrator shall pay that amount on behalf of the SCM to the County of San Mateo at the time of distribution of the settlement funds to Claimants.
VIII. GENERAL CLAIM PROCEDURES To receive payment, an SCM shall be required to submit to the Claims Administrator, an executed Claim Form. In order to receive a Tier-2 payment, the SCM must complete applicable questions 1 through 5 in the Claim Form in accordance with the instructions provided. In order to receive a Tier-3 payment, the SCM must complete applicable questions 7 through 9 in the Claim Form in accordance with the instructions provided. All forms must be submitted by the Bar Date unless such period is extended by order of the Court. The Claim Form and accompanying documentation shall be submitted by first class mail and shall be deemed submitted upon the date of the postmark. If an SCM fails to provide information in the manner required by the Court, this failure may result in the denial of the corresponding part of the claim. SCMs who submit claims will be paid by check mailed to the address on the Claim Form or to the address specified by the SCM to which she wishes the payment mailed. The named Plaintiffs identified in Paragraph 30 shall be deemed fully compensated by the distribution of $120,000 (One Hundred Twenty Thousand Dollars) and shall not be permitted to claim a Tier-1, Tier-2 and/or Tier-3 payment. In the event that the total amount of all claims, including the distribution to the named plaintiffs, exceeds the amount of the Payment Fund allocated for such payment, $1,150,000 (One Million, One Hundred Fifty Thousand Dollars), each claim will be reduced proportionately so that the entire Payment Fund is exhausted by reducing each payment to its pro rata share of the total Payment Fund, payments to Representative Plaintiffs excluded.

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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In the event the total amount of all claims is less that the amount available for payment of claims, no further payment will be required. In the event any amount remains following distribution to the SCMs, it will be returned to the funding entity, save and except as provided in Paragraph 29.
IX. EXCLUSION FROM THE SETTLEMENT CLASS Any potential SCM who wished to be excluded from the Settlement Class must have filed a request to be excluded from the class in accordance with the procedures stated in the Notice of Settlement of Class Action by March 31, 2006. Any potential SCM who did not timely file a Request for Exclusion shall conclusively be deemed to have become an SCM and to be bound by this Stipulation of Settlement and by all subsequent proceedings, orders, and judgments herein. Any SCM who did not elect to be excluded from the Settlement Class may, but need not, enter an appearance through her own attorney. SCMs who do not enter an appearance will be represented by Class Counsel.
X. OBJECTING TO THE PROPOSED SETTLEMENT Any SCM who did not elect to be excluded form the Settlement Class may, but need not, submit comments or objections to the proposed settlement. The Court will enter an appropriate order setting forth the procedure for SCMs to submit comments or objections to the proposed settlement.
XI. ATTORNEYS FEES Class Counsel shall receive a total award of $600,000 (Six Hundred Thousand Dollars) for attorney fees and costs of prosecuting this action, Payment will be made as follows: $300,000 within twenty (20) days of the Effective Date, and $300,000 upon distribution of settlement funds to claimants. This award is subject to the approval of the Court. Payments will be made by check made payable to Mark E. Merin and Andrew C. Schwartz and mailed to the

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

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Law Office of Mark E. Merin, 2001 P Street, Suite 100, Sacramento, California 95814. XII.
NOTICE Notice to SCM shall be by first class mail, postage prepaid, to all individuals whose addresses are on record in the computer database of the San Mateo County Sheriff’s Department. Both Parties and the Administrator will exercise their best efforts to update and to verify addresses, including but not limited to addresses of SCMs who are incarcerated. This paragraph shall not limit further appropriate efforts to provide notice. Follow-up reminder post-cards shall be delivered by first class mail forty-five (45) days after initial notice is given to the last known address of all SCMs who have not returned a Claim Form by that date. The Administrator shall cause to be published in a major newspaper of general distribution in the County of San Mateo and surrounding areas twice a week in each of three consecutive weeks and in the San Mateo Daily News, a local free newspaper publication, once in each of two consecutive weeks, a notice in a form and manner substantially in the form attached hereto as Exhibit “5”.
XIII. ADMINISTRATIVE COSTS All reasonable costs incurred in the administration of this Stipulation of Settlement including, but not limited to, the fees of the Administrator, costs of disseminating notice to class members, by mail, publication, or other means agreed to by the Parties, receiving and evaluating claims, including the cost of distribution of the monetary payments to the class members, and any additional claims administration costs required by this Stipulation of Settlement will be paid from the Administration Fund set forth in Paragraph 29 above. Following preliminary Court approval of the Stipulation of Settlement, the Administrator shall submit monthly invoices to Class Counsel and Counsel for Defendants for services rendered and for expense reimbursement. All invoices will indicate the dates upon which services were performed, the titles of the employees performing the services, the number of

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00468608.WPD

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1

hours of work performed by each title on each date, the hourly rate for each such title, and

2

the total fee for the services performed. The hourly rates shall be in accordance with the

3

agreement between the Parties and Gilardi and Co. All payments made to the Administrator,

4

even if disbursed prior to Final Approval of the Settlement, are chargeable as the cost of

5

Administration described in Paragraph 29 above. Either party may contest the

6

reasonableness of the hours and costs. If a dispute cannot be resolved among the Parties and

7

the Administrator, the Special Master shall make a final determination.

8 74. In the event that the total charges of the Claims Administration does not exceed $150,000

9

(One Hundred Fifty Thousand Dollars) after all claims have been paid, and all administration

10

has been completed, no further payments will be made, all remaining funds will be returned

11

to the funding entity.

12 DATED: ____________, 2007 Respectfully submitted,

13 14 15 16 17 DATED: ____________, 2007 18 19 20 21

LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK
_________________________________________ Mark E. Merin Attorneys for Plaintiffs
Respectfully submitted,
PORTER, SCOTT, WEIBERG & DELEHANT and THOMAS F. CASEY III, COUNTY COUNSEL
_________________________________________ Terence J. Cassidy Attorneys for Defendants

22

23

24

25

26

27

28

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.
00468608.WPD

PAGE 18 OF 18 STIPULATION OF SETTLEMENT

USDC, Northern District, Case No. C 04-0448 SBA

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 20 of 54
EXHIBIT 1
Stipulation of Settlement

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 26 of 54
EXHIBIT 2
Stipulation of Settlement

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 45 of 54
EXHIBIT 3
Stipulation of Settlement

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 46 of 54
SAN MATEO COUNTY STRIP SEARCH LAW SUIT CLASS ACTION CLAIM FORM
(GALLAGHER, ET AL. vs. COUNTY OF SAN MATEO, ET AL) U.S. DISTRICT COURT, NORTHERN DISTRICT, CASE NO. C 04-0448 SBA

FILL OUT THIS FORM IF YOU ARE A FEMALE AND WERE ARRESTED ON CHARGES NOT INVOLVING VIOLENCE, DRUGS OR WEAPONS, AND WERE STRIP SEARCHED, PRIORTO ARRAIGNMENT, AT A SAN MATEO COUNTY JAIL ON OR BETWEEN FEBRUARY 3, 2002, TO AND INCLUDING DECEMBER 2, 2003. ALL MEMBERS
OF THIS CLASS WHO QUALIFY WILL RECEIVE A MINIMUM OF $1,250.
You must complete and submit this claim form no later than __________, to qualify for payment from settlement of the class action strip search case against San Mateo County. If you do not return a completed claim form by the due date you will receive no money from the settlement.

CLASS ACTION CLAIM FORM

________________________(Bar Code) Name Address City, State, Zip Code Phone #: Cal. Driver’s License No.
Social Security Number: Date of Birth:

Claim No._____________________________________ Please enter your correct name, and address here if it does not appear to the left. Name: ______________________________________________ Address:_____________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________

--------  --------  --------  --------  --------  --------  --------
WERE YOU ARRESTED AND STRIP SEARCHED PRIOR TO ARRAIGNMENT AT THE MCGUIRE CORRECTIONAL FACILITY IN SAN MATEO COUNTY AT ANY TIME BETWEEN FEBRUARY 3, 2002, UP TO AND INCLUDING DECEMBER 2, 2003?

Yes No

‘

‘

WERE YOU ARRESTED AND STRIP SEARCHED PRIOR TO ARRAIGNMENT AT THE WOMENS

CORRECTIONAL CENTER IN SAN MATEO COUNTY AT ANY TIME BETWEEN FEBRUARY 3,

2002, UP TO AND INCLUDING DECEMBER 2, 2003?

‘

‘

If you answered “yes” to the either of the above, or if you are unsure of the date or dates, please continue to answer the questions below.

Note: Not all persons strip searched at the San Mateo County Jail during the class period (February 3, 2002, to December 2, 2003) will be entitled to payment. If you were on parole or searchable probation or were arrested on charges involving drugs, weapons, or violence, you are not entitled to payment under this settlement. Eligibility will be based solely on records maintained by the San Mateo County Sheriff’s Department.

Use return envelope and mail or hand deliver the completed claim form and any supporting information to: Class Claim Administrator: Gallagher, et al. Strip Search Class Action, c/o Claims Administrator, P.O. Box 1110, Corte Madera, CA 94976-1110.

Answer each of the following questions by placing a check in the “yes” or “no” box at the end of the question. If you check “yes” as the answer to any question, and it is requested, you MUST submit an explanation, description of the circumstances, medical verification, witness statements, or such other substantiation necessary to support your answer. If you do not provide the requested explanation, description or substantiation, your “yes” answer will be disregarded. CAUTION – THESE ANSWERS ARE GIVEN UNDER PENALTY OF PERJURY.

{00468621.DOC}

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 47 of 54

Question

1.

Did you have a physical disability or disfigurement (such as an embarrassing scar condition in a

private area) at the time of the search? If so, describe the disability, and/or scar condition in detail

and/or submit a photograph. _______________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

2.

Did you have a mental disability? If so, describe/explain the disability. _____________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

3.

If you are female, were you more than 3 months pregnant? If so, give the name and birth date of

the child born or explain how the pregnancy ended._____________________________________

______________________________________________________________________________

______________________________________________________________________________

4.

Did you have piercings in a private area removed, any hair extensions or required to remove

religious garments? If so, describe: _________________________________________

______________________________________________________________________________

______________________________________________________________________________

5.

If you are female, were you having your period? _______________________________________

______________________________________________________________________________

6.

Were you incarcerated in a State Prison or County Jail pursuant to a sentenced conviction within

five years prior to the strip search. If so, please list the date(s) of incarceration and the facility you

were incarcerated in.

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

*7. Did you receive counseling or therapy as a result of the strip search? If so, give the name, address and telephone number(s) of the therapist(s), the dates of the visits and provide documentation to support your claim:______________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________

*8 . Were you diagnosed with a psychological condition resulting from the strip search? If so, give the name, address and telephone number of the person(s) who diagnosed your condition and provide documentation to support your claim:________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________

*9. Did you suffer any other significant ill effects of the strip search? If so, describe those effects, in detail, and provide whatever documents exist to confirm or support your statement. ___________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________________________________________
{00468621.DOC}

Yes No

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

‘

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 48 of 54

List documents attached to support above statement:________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

*

If you answered “yes” to any of these questions you may be contacted and asked to provide further

information. You may also be required to submit to an examination under oath by an attorney or an

agreed medical examiner hired by the County of San Mateo.

CRIMINAL FRAUD WILL RESULT IN DENIAL OF YOUR CLAIM.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE ABOVE IS TRUE AND CORRECT.

DATED: _______________________ SIGNATURE:____________________________________

The information given here is private and will be held in the strictest confidence. If you have any questions about this lawsuit, write to the Claims Administrator at Gallagher, et al., Strip Search Class Action, c/o Claims Administrator, P.O. Box 1110, Corte Madera, CA 94976-1110, or visit our website at ___________________________.

THIS CLAIM FORM MUST BE SIGNED AND RETURNED WITH A POSTMARK NO LATER THAN __________________________.

If you need assistance in completing this form, please feel free to contact plaintiffs’ class counsel, Mark E. Merin at Law Offices of Mark E. Merin, 2001 P Street, Suite 100, Sacramento, California 95814; Telephone (916) 443-6911; Facsimile (916) 447-8336; Email office@markmerin.com.

If you would like your settlement check mailed to an address other than that on the first page of the Claim Form, provide it here: (Address if different) to which settlement check should be mailed:
___________________________________________________________________________________________________ ___________________________________________________________________________________________________ ___________________________________________________________________________________________________

{00468621.DOC}

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 49 of 54
EXHIBIT 4
Stipulation of Settlement

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 50 of 54
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE
If you are female and were booked into a San Mateo County Jail and strip-searched, prior to arraignment, between February 3, 2002, to December 2, 2003,
You may be entitled to monetary compensation under a class action settlement.
There is presently pending a class action lawsuit in the United States District Court, Northern District of California. The Court has certified the case as a class action. If the proposed Settlement receives final approval, people who were subjected to a strip search in a San M ateo County Jail before arraignment on certain charges may be eligible to receive a minimum of $1,250, subject to possible reduction.
If you believe you are a member o f the class and you do not get a Claim Form mailed to you, you may obtain a claim form by writing to the C laims A dministrator, Gallagher, et al. Strip Search Class Action, c/o Claims Administrators, P.O. Box 1110, Corte Madera, CA 94976-1110, by calling the Claims Administrator at (800) ______________, by visiting the website at www._______________, or by contacting the class counsel, Law Office of Mark E. Merin, 2001 P Street, Suite 100, Sacramento, CA 95814, (916) 443-6911, e-mail at office@markmerin.com, or Casper, Meadows, Schwartz & Cook, 2121 N. California Blvd., Suite 1020, Walnut Creek, CA 94596, (925) 947-1147.
Your Claim Form must be completed and postmarked no later than _________________ For more information, please read this notice.
If You Wish to Claim Monetary Compensation, Obtain, Fill out and Mail the Claim Form as Soon as Possible but No Later than ____________.
PLEASE READ THIS ENTIRE NOTICE CAREFULLY. YOU MAY BE ENTITLED TO RECEIVE A PAYMENT.
There is now pending in the United States District Court in and for the Northern District of California a class action lawsuit involving a class of persons defined as those females who were booked at a San M ateo County Jail between February 3, 2002, to and including December 2, 2003, on charges not involving violence, drugs or weapons, not in violation of probation or parole, and subjected to a strip search prior to arraignment.
This Notice is to inform you that a settlement has been proposed in this action and that, as a potential class member, your rights may be affected by the settlement. This Notice also summarizes the terms and effect of the proposed settlement, what you can do to participate in it and how you can obtain money under the settlement.
SU M MA RY OF TH E PR OPO SED TER M S
A Settlement Agreement (“Settlement”) was entered into after negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court Approve the Settlement.
A. Parties to the Settlement.
The parties to the Settlement are the female Plaintiffs named in Gallagher, et al. v. Co unty of San M ateo, et al., United States District Court, Northern District, Case No. C 0 4-0448 SB A on behalf of themselves and the Settlement Class, and various defendants including the County of San Mateo. Counsel for the class is Mark E. Merin, The Law Office of Mark E. Merin, 2001 P Street, Suite 100, Sacramento, CA 95814 and Andrew C. Schwartz, Casper, Meadows, Schwartz & Cook, 2121 N. California Boulevard, Suite 1020, Walnut Creek, CA 94596.
B. M onetary Terms of Settlement
1. Class Fund and Related Expenses.
Defendants shall pay a maximum of $1,900,000 und er the terms of the settlement which will hereafter be referred to as the Settlement Fund .

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 51 of 54
Class Counsel shall seek an award of up to $600,00 0 of the Settlement Fund as attorney’s fees and costs for recovering the Settlement Fund for the Class Members. Up to $150,000 of the Settlement Fund may be used for costs of claims administration. Up to $1,150,000 may be used to pay valid claims.
2. Payments to Class Members Who File Claims.
Money for the class will be paid out based on a distribution formula, subject to payments being proportionately reduced if the total value of verified claims exceeds $1,150,000. Pursuant to that distribution formula each Claimant will receive a minimum Tier-1 payment of $1,250 upon confirmation that the Claimant is a Class Member. In order to receive this payment, the Claimant need not do anything other than submit a valid Claim Form.
Claimants may also receive an additional Tier-2 payment of up to $3,000.00. In order to receive this payment, the Claimant must answer Questions 1-5 included in the Claim form. Also, the Claimant must submit a written description of the circumstances surrounding the strip-search and/or provide substantiation which supports those contentions. Complete instructions regarding the written description and/or type of substantiation which will be required are included in the Claim Form.
Claimants may also receive an additional Tier-3 payment of up to $25,000.00 for physical or psychological injury resulting from the strip-search. In order to receive a Tier-3 payment, the Claimant must answer questions 7-9 in the Claim form, provide medical documentation supporting a Tier-3 payment and agree to submit to an examination under oath by an attorney for the County of Sacramento.
C. Your O ptions as a Class Memb er.
1. Be Bound by, and Participate in the Settlement.
To qualify for a payment, you must send in a completed Claim Form to the Claims Administrator. A Claim Form is included in this notice package. You can also get a Claim Form by: (1) calling this toll free number: [800 Number]; (2) visiting the website, [web site]; (3) req uesting a Claim Form from the offices of Class Counsel at: The Law Office of M ark E. M erin, 2001 P Street #100, Sacramento, CA 95814, telephone (916) 443-6911 or Casper, M eadows, Schwartz & Cook, 2121 N. California Blvd. #1020, Walnut Creek, CA 94596, telephone (925-947-1147; or (4) writing the Claims Administrato r at: Ga llagh er, et a l. Strip Search Class Action, c/o Claims Administrator, P.O. Box 1110, Corte M adera, CA 94976-1110.
You have until ___________, to submit a Claim Form.
Mail your completed Claim Form to: Ga llagh er, et a l. Strip Search C lass Action, c/o Claims Administrator, P.O . Box 111 0, Corte Madera, CA 94976-1110.
If you need assistance in completing the claim form, feel free to contact class counsel, Mark E. Merin at the Law Office of Mark E. Merin, 2001 P Street, Suite 100, Sacramento, CA 95814, (916) 443-6911, or Andrew C. Schwartz at the firm Casper, Meadows, Schwartz & Cook, 2121 N. California Blvd. #1020, W alnut Creek, CA 94596, (925) 947-1147.
Remember, if you do not send a Claim Form, you cannot get a payment. Also, please note that Class Members who have already settled their claims with the County of San Mateo or gone to trial with the County of San Mateo cannot receive a payment under this settlement. If you submit a Claim Form, you will be bound by the Settlement and receive money (if you are a class member). If you do not submit a Claim form but did not exclude yourself from the class, you will be bound by the terms of the Settlement and dismissal entered in this case, but you will not receive any money.
By participating in the Settlement you will be waiving all your rights to all claims up to December 3, 2003, related to strip searches by the San Mateo C ounty Jails, even those of which you are not aware of at present. This waiver will include a waiver of the provisions of California Civil Code §1542, which provides that “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” By participating, you will be giving up unsuspected claims in the areas covered by the litigation.
D. Fairness Hearing and Process for Objections.
A fairness hearing will be held on ___ ___ ___ ___ _, at the U nited S tates D istrict Court, No rthern D istrict of Ca lifornia, 1301 Clay Street, Courtroom 3, Oakland, CA 94612. If you are a class member and did not exclude yourself, you can tell the Court you do not like the Settlement or some part of it at this hearing. This is called objecting to the Settlement. For example, you can say you do not think the Settlement is fair or adequate. The Court will consider your views.

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 52 of 54
To object, you must sen d a letter to the co urt that co ntains all of the follow ing: (1) T he nam e and title of the lawsuit, Gallagher, et al. v. County of San M ateo, et al., Case No. C 04 -0448 SB A; (2) A statement of each objection you have and the facts that support the objections; (3) A description of any law or case supporting the objections; (4) A statement on whether or not you or your lawyer will ask to appear at the Fairness Hearing to talk about your objections, and, if so, how long you will need to present your objections; and (5) Copies of any documents you or your lawyer will present at the Fairness Hearing.
Individually, or through counsel, any class member has the right to object to the proposed Settlement as a whole, to the amount of attorneys’ fees and costs of Class Counsel, or to any portion of either. ANY SUCH OBJECTIONS MUST BE FILED IN WRITING ON OR BEFORE ___ ___ ___ ___ ___ ___ ___ , IN THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFO RN IA LOC AT ED AT 130 1 CLAY STREET , COUR TR OO M 3, OAK LAN D, CA 94612, ATTN: CLERK, RE: GAL LAG HER , ET AL V. CO UN TY OF SA N M ATE O SE TT LEM ENT , CASE N O. C 04-04 48 SB A. If you wish to appear and present your objections at the fairness hearing, you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address, and explains the reason the appearance is desired. The Notice of Intention to Appear and any objections must be filed with the Court on or before ___ ___ ___ ___ ___ . You may be represented by your own attorney. If you are to be represented by an attorney at the hearing, his or her name, address and telephone number must be included in the Notice of Intention to Appear as well.
A copy of the Statement of Objection and/or Notice of Intention to Appear m ust also be mailed to: The Law O ffice of Mark E . Merin, 2001 P Street, Suite 100, Sacramento, CA 95814 ATTN : Mark E. Merin and Porter, Scott, Weiberg and Delehant, P.O. Box 255428, Sacramento, CA 95865, ATTN Terence Cassidy.
E. How to Obtain Further Information
For additional information regarding the Settlement and Claim Form, or a copy of the Settlement Agreement, Claim Form or Class Counsel’s M otion for Atto rney’s Fe es, you o r your counsel should contact: Ga llagh er, et a l. Strip Search Class Action, c/o Claims Administrator, P.O. Box 1110, Corte M adera, CA 94976-1110. Yo u may a lso che ck the C lass Ad ministrato r’s website at [web addr ess] or call [800 N umber]. You may also obtain detailed information about the case by examining the Court file located in the office of the Clerk of the United States District Court in and for the Northern District of California, 1301 Clay Street, Courtroom 3, Oakland, CA 94612.
F. Court Approval.
Although the C ourt has reviewed the proposed Settlement, no de cision has been, or will be, reached by the Cou rt, until the Fairness Hearing. This Notice doesn’t indicate that the Court has yet approved the Settlement.

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 53 of 54
EXHIBIT 5
Stipulation of Settlement

Case 4:04-cv-00448-SBA Document 56-3 Filed 02/05/2007 Page 54 of 54
CLASS ACTION STRIP SEARCH SETTLEMENT
IF YOU ARE FEMALE AND WERE BOO KED INTO A SAN MATEO COU NTY JAIL AND STRIP SEARCHED, PRIOR TO ARRAIGNMENT, BETWEEN FEBRUARY 3, 2002, TO DECEMBER 2, 2003, YOU
MAY BE ENTITLED TO MONETARY COMPENSATION UNDER A CLASS ACTION SETTLEMENT
There is a proposed Settlement of a Class Action lawsuit, Gallagher, et al. v. San Mateo County, et al., pending in the United States District Court for the Northern District of California. The lawsuit concerns the strip search policy and practices of the San Mateo County Jails.
What is the Litigation About? Female Plaintiffs alleged that Defendants violated various federal and state laws by strip searching females booked at a San Mateo County Jail between February 3, 2002, to December 2, 2003.
Who is Involved? If you are a female and you were strip searched at any San Mateo County Jail in the period from and including February 3, 2002, to and including December 2, 2003, following your arrest on any charge not involving weapons, controlled substances, or violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and/or were subjected to a subsequent strip search(es) before arraignment after the initial strip search, you are a member of this strip search class action.
What are the Terms? If you were a female booked in to the San Mateo County Jail and strip searched during the class period (February 3, 2002, to December 2, 2003), you may be entitled to compensation depending on the number of times you were booked and strip searched, the charges on which you were booked, and your probation status at the time of booking.
Up to $1,150,000 (One Million, One Hundred Fifty Thousand Dollars) will be available to satisfy claims under this settlement. Class Counsel will apply to the Court for an agreed fee of $600,000 (Six Hundred Thousand Dollars) for reimbursement for attorneys’ fees and reimbursement of costs and expenses. Representative plaintiffs will collectively share $120,000 (One Hundred Twenty Thousand Dollars), and $150,000 (One Hundred Fifty Thousand Dollars) will be reserved for Claim Administrator expenses, for a possible total of $1,900,000 (One Million, Nine Hundred Thousand Dollars).
For more information or to receive a claim form, consult the website or call the toll free number below.
What are My Legal Rights? If you wish to share in the Settlement Fund you must file a claim as discussed below. If the Court approves the Proposed Settlement, you will receive a payment if you qualify. You will also be bound by all of the Court’s orders. This means you will drop any claims you may have against the Defendants covered by this Settlement.
If you wish to file a claim you must complete a Claim Form. You can get a Claim Form by contacting the Claims Administrators, in writing, at the address given below, or by calling the toll free number. Claim Forms must be signed and post-marked no later than ___________.
When Will the Settlement be Approved? The United States District Court for the Northern District of California will hold a Fairness Hearing to decide if the proposed settlement is fair, reasonable and adequate at ______ a.m. on ______________, at the United States District Court, 1301 Clay Street, Courtroom 3, Oakland, California 94612. At the hearing the Court will also consider whether Class Counsel’s request for attorneys’ fees and costs are fair, reasonable, and adequate.
If you remain a member of the Settlement Class you or your counsel have the right to appear before the Court and to object to the Settlement. However, in order to object, you must file a written objection, as outlined in the Stipulation of Settlement and long form notice. Objections must be filed with the Court by ____________.
FOR INFORMATION ON THE PROPOSED SETTLEMENT, YOUR RIGHTS, AND A COPY OF THE NOTICE:
VISIT: ___________________ or Call: ________________
or W rite: Gallagher v San Mateo County Strip Search Class Action, c/o Claims Administrator, _________________
PLEASE DO NOT CALL THE COURT

 
 Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 1 of 8

1 LAW OFFICE OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 2001 P Street, Suite 100 Sacramento, California 95814
3 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
4

5

CASPER, MEADOWS, SCHWARTZ & COOK Andrew Charles Schwartz, SBN 064578

6

2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596

7

Telephone: (925) 947-1147 Facsimile: (925) 947-1131

8 Attorneys for Plaintiffs

9 THOMAS F. CASEY III, COUNTY COUNSEL, SBN 47562
10 Carol L. Woodward, Deputy, SBN 084197 Hall of Justice and Records
11 400 County Center, 6th Floor
Redwood City, CA 94063 12 Telephone: (650) 363-4746
Facsimile: (650) 363-4034 13

14

PORTER, SCOTT, WEIBERG & DELEHANT Terence J. Cassidy, SBN 99180

15

P.O. Box 255428 Sacramento, CA 95865

16

Telephone: (916) 929-1481 Facsimile: (916) 927-3706

17 Attorneys for Defendants

18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21

SHANNON GALLAGHER, ROBERTA BAUCCIO, GRACE CARLAND, and all others

CASE NO: C 04-0448 SBA

22 similarly situated,

Plaintiffs,

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF

23 vs.

CLASS ACTION

24

DATE:

April 3, 2007

COUNTY OF SAN MATEO, SAN MATEO

TIME:

1:00 p.m.

25 COUNTY SHERIFF’S DEPARTMENT; SAN

CTRM:

3

MATEO COUNTY SHERIFF DON HORSLEY, in JUDGE: 26 his individual and official capacity; SAN MATEO

Hon. Saundra Brown Armstrong

COUNTY SHERIFF’S DEPUTIES DOES 1 27 THROUGH 100; and DOES 1 THROUGH 150,

INCLUSIVE, et al., 28

Defendants.

PAGE 1 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 2 of 8

1

WHEREAS, plaintiffs SHANNON GALLAGHER, ROBERTA BAUCCIO, and GRACE

2 CARLAND, on behalf of themselves and all persons similarly situated, by and through their

3 attorneys, Mark E. Merin of the Law Office of Mark E. Merin and Andrew C. Schwartz of

4 Casper, Meadows, Schwartz & Cook, and defendants, COUNTY OF SAN MATEO, SAN

5 MATEO COUNTY SHERIFF’S DEPARTMENT and SAN MATEO COUNTY SHERIFF DON

6 HORSLEY, by and through their counsel, Thomas F. Casey, III, County Counsel, Carol L.

7 Woodward, Deputy County Counsel and Terence J. Cassidy of the law firm Porter, Scott,

8 Weiberg & Delehant, have entered into a Stipulation of Settlement intending to resolve all

9 claims raised in this class action pending in this Court;

10

WHEREAS, the Stipulation of Settlement, together with the supporting materials, sets

11 forth the terms and conditions for a proposed settlement and dismissal with prejudice of the

12 pending above-captioned class action against all defendants;

13

WHEREAS, the Court has before it and has reviewed the parties’ Stipulated Motion for

14 Preliminary Approval of Settlement of Class Action together with the Stipulation of Settlement

15 and supporting materials; and

16

WHEREAS, the Court is satisfied that the terms and conditions set forth in the

17 Stipulation of Settlement were the result of good faith, arms’ length settlement negotiations

18 between competent and experienced counsel for both plaintiffs and defendants, after mediation

19 before both Chief Magistrate Judge James Larson and the Honorable Raul Ramirez (Retired);

20

IT IS HEREBY ORDERED AS FOLLOWS:

21 I. PRELIMINARY APPROVAL OF SETTLEMENT

22

1. The terms of the Stipulation of Settlement are hereby preliminarily approved,

23

subject to further consideration thereof at the Fairness Hearing provided for

24

below. The Court finds that the settlement is sufficiently within the range of

25

reasonableness and that notice of the proposed settlement should be given as

26

provided in this Order.

27

2. The Court further finds that plaintiffs SHANNON GALLAGHER, ROBERTA

28

BAUCCIO, and GRACE CARLAND are adequate class representatives for the

PAGE 2 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 II. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

settlement class.
3. The Court further finds that plaintiffs’ counsel Mark E. Merin of the Law Office
of Mark E. Merin and Andrew C. Schwartz of Casper, Meadows, Schwartz and
Cook are adequate class counsel.
4. The Court approves the Notice of Proposed Settlement of Class Action Strip
Search Case attached hereto as Exhibit A and further approves the method by
which notice is proposed to be given.
5. If, pursuant to the terms of the Stipulation of Settlement, the settlement is not
consummated, the preliminary approval of the Stipulation of Settlement shall be
void and the parties shall have reserved all of the rights to continue with any
litigation or further mediation or settlement discussions.
6. The Bar Date, as defined in paragraph 2 of the Stipulation of Settlement shall be
October 5, 2007.
NOTICE TO SETTLEMENT CLASS MEMBERS, APPROVAL OF CLASS COUNSEL, AND EMPLOYMENT OF CLASS CLAIM ADMINISTRATOR
7. Counsel for the class (“class counsel”) are as follows:
Mark E. Merin, Esq. Law Office of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443-6911 - Telephone (916) 447-8336 - Facsimile
Andrew Charles Schwartz, Esq. Casper, Meadows, Schwartz & Cook 2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 - Telephone (925) 947-1131 - Facsimile
8. Counsel for defendants are as follows:
Thomas F. Casey, III, County Counsel Carol L. Woodward, Deputy County Counsel Hall of Justice and Records 400 County Center, 6th Floor Redwood City, CA 94063 (650) 363-4746 - Telephone (650) 363-4034 - Facsimile

PAGE 3 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 4 of 8

1

Terence J. Cassidy, Esq.

Porter Scott Weiberg & Delehant

2

P.O. Box 255428

Sacramento, CA 95865

3

(916) 929-1481- Telephone

(916) 927-3706 - Facsimile

4

9. Class Claims Administrator is as follows:

5

Gilardi and Company, LLC

6

3301 Kerner Blvd

San Rafael, CA 94901

7

(415) 461-0410 - Telephone

(800) Toll Free Number to be arranged.

8

(415) 461-0412 - Facsimile

9

10. Beginning no later than 30 days from the date of this Order, counsel for the

10

parties acting with the Class Claims Administrator shall cause to be disseminated

11

the Notice and Claim Form, substantially in the form attached hereto as Exhibits

12

A and B, in the manner set forth in paragraphs 58 through 63 of the Stipulation of

13

Settlement. Such summary notice as the parties agree will be published in

14

accordance with the Stipulation of Settlement and announcements following a

15

script approved by the parties will be made on such radio stations with the

16

frequency provided in the Stipulation of Settlement. Class members will have up

17

to and including [four months from date of Court Order on a date certain to be

18

inserted?], in which to object to this settlement or file claims. Prior to the

19

Fairness Hearing, the Claims Administrator shall file and serve a sworn statement

20

attesting to compliance with the provisions of this paragraph.

21

11. The notice to be provided as set forth in the Stipulation of Settlement is hereby

22

found to be the best means practicable of providing notice under the

23

circumstances and, when completed, shall constitute due and sufficient notice of

24

the proposed settlement and of the Fairness Hearing to all persons and entities

25

affected by and/or entitled to participate in the settlement, in full compliance with

26

applicable statutes and Constitution of the state of California, due process, the

27

Constitution of the United States and all other applicable laws. The notices are

28

accurate, objective, informative and provide class members with all of the

PAGE 4 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 5 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 III. 18 19 20 21 22 23 24 25 26 27 28

necessary information to make an informed decision regarding their participation in the settlement and its fairness. 12. Counsel for the respective parties are authorized to retain Gilardi and Company, LLC, 3301 Kerner Blvd, San Rafael, CA 94901, as Class Claims Administrator in accordance with the Stipulation of Settlement and this Order. 13. Members of the Settlement Class were given an opportunity to be excluded (“opt out”) from the Settlement Class by filing their request to be excluded on or before March 31, 2006. No persons have elected to exclude themselves by filing requests for exclusion. 14. Members of the Settlement Class who did not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of this Stipulation of Settlement, including but not limited to the releases, waivers, and covenants described in the Stipulation of Settlement, whether or not such person object to the settlement and whether or not such person made a claim upon or participated in the Settlement Fund created pursuant to the Stipulation of Settlement. THE FAIRNESS HEARING 15. A hearing on final approval, the “Fairness Hearing,” is hereby scheduled to be held before this Court on November 6, 2007, at 1:00 p.m., to consider the fairness, reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action complaint with respect to the released parties herein, and the entry of final judgment in the class action. Class counsels’ application for award of attorneys’ fees and costs shall be heard at the time of the Fairness Hearing. 16. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the settlement class other than that which may be issued by the Court.

PAGE 5 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 6 of 8

1

17. Any person who did not elect to be excluded from the settlement class may, but

2

need not, enter an appearance through his or her own attorney. Settlement class

3

members who do not enter an appearance through their own attorneys will be

4

represented by class counsel.

5

18. Any person who did not elect to be excluded from the settlement class may, but

6

need not, submit comments or objections to the proposed settlement. Any class

7

member may object to the proposed settlement, entry of the final order and

8

judgment approving the settlement, and class counsels’ application for fees and

9

expenses by filing and serving a written objection.

10

19. Any class member making the objection (an “objector”) must sign the objection

11

personally. Any objection must state why the objector objects to the proposed

12

settlement and provide the basis to support such position. If an objector intends

13

to appear personally at the Fairness Hearing, the objector must include with the

14

objection a notice of the objector’s intent to appear at the hearing.

15

20. Objections, along with any notice of intent to appear, must be filed with the Court

16

no later than October 5, 2007. If counsel is appearing on behalf of more than one

17

class member, counsel must identify each such class member and each class

18

member must have complied with the requirements of this order. The documents

19

must be filed with the clerk of the Court at the following address: United States

20

District Court, Northern District of California, 1301 Clay Street, Courtroom 3,

21

Oakland, California 94612.

22

21. Objections, along with any notice of intent to appear, must also be mailed to class

23

counsel and counsel for defendants at the addresses listed below:

24

Counsel for the class (“class counsel”) are as follows:

25

Mark E. Merin, Esq.

Law Office of Mark E. Merin

26

2001 P Street, Suite 100

Sacramento, CA 95814

27

(916) 443-6911 - Telephone

(916) 447-8336 - Facsimile

28

PAGE 6 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 7 of 8

1

Andrew Charles Schwartz, Esq.

Casper, Meadows, Schwartz & Cook

2

2121 N California Boulevard, Suite 1020

Walnut Creek, CA 94596

3

(925) 947-1147 - Telephone

(925) 947-1131 - Facsimile

4

Counsel for defendants are as follows:

5

Thomas F. Casey, III, County Counsel

6

Carol L. Woodward, Deputy County Counsel

Hall of Justice and Records

7

400 County Center, 6th Floor

Redwood City, CA 94063

8

(650) 363-4746 - Telephone

(650) 363-4034 - Facsimile

9

Terence J. Cassidy, Esq.

10

Porter Scott Weiberg & Delehant

P.O. Box 255428

11

Sacramento, CA 95865

(916) 929-1481- Telephone

12

(916) 927-3706- Facsimile

13

22. Only class members who have filed and served valid and timely notices of

14

objection shall be entitled to be heard at the Fairness Hearing. Any class member

15

who does not timely file and serve an objection in writing to the settlement, entry

16

of final order and judgment, or to class counsels’ application for fees and

17

expenses, in accordance with the procedure set forth in the class notice and

18

mandated in the order, shall be deemed to have waived any such objection by

19

appeal, collateral attack, or otherwise.

20

23. Persons wishing to be heard at the Fairness Hearing are required to file written

21

comments or objections and indicate in their written comments or objections their

22

intention to appear at the Fairness Hearing. Settlement class members need not

23

appear at the hearing or take any other action to indicate their approval.

24

24. All members of the settlement class who did not timely request to be excluded

25

from the class are enjoined from proceeding against the defendants until such

26

time as the Court renders a final decision regarding approval of the settlement

27

and, if the settlement is approved, enters final judgment as provided in the

28

Stipulation of Settlement.

PAGE 7 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

Case 4:04-cv-00448-SBA Document 58 Filed 04/03/2007 Page 8 of 8

1 V. OTHER PROVISIONS

2

25. Upon approval of the settlement provided for in the Stipulation of Settlement,

3

each and every term and provision thereof shall be deemed incorporated herein as

4

if expressly set forth and shall have the force and effect of an order of this Court.

5

26. The Honorable Raul Ramirez, United States District Court Judge, retired, is

6

hereby appointed to serve as Special Master to review and resolve certain disputes

7

which may arise pursuant to the terms of the Stipulation of Settlement.

8

27. All reasonable costs incurred in notifying members of the settlement class as well

9

as administering the Stipulation of Settlement shall be paid as set forth in the

10

Stipulation of Settlement.

11

IT IS SO ORDERED.

12 DATED: 4/2/07 13 14

________________________________________________ HON. SAUNDRA BROWN ARMSTRONG JUDGE OF THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PAGE 8 OF 8

SHANNON GALLAGHER, et al. v. COUNTY OF SAN MATEO, et al.

USDC, Northern District, Case No. C 04-0448 SBA

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION [PROPOSED]

 
 Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 1 of 13

1 Andrew C. Schwartz (State Bar No. 64578) Thom Seaton (State Bar No. 62713)
2 Micha Star Liberty (State Bar No. 215687) CASPER, MEADOWS & SCHWARTZ
3 A Professional Corporation California Plaza
4 2121 North California Blvd., Suite 1020 Walnut Creek, California 94596
5 Telephone: (925) 947-1147 Facsimile: (925) 947-1131
6 Mark E. Merin (State Bar No. 043849)
7 LAW OFFICES OF MARK E. MERIN 2001 P Street, Suite 100
8 Sacramento, California 95814 Telephone: (916) 443-6911
9 Facsimile: (916) 447-8336

10 Attorneys for Plaintiff SHANNON GALLAGHER
11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 SHANNON GALLAGHER, and all others Case No.

similarly situated,

16

CLASS ACTION COMPLAINT

Plaintiffs,

17

42 U.S.C. § 1983

vs.

Supplemental State Claims

18

COUNTY OF SAN MATEO; SAN MATEO DEMAND FOR JURY TRIAL

19 COUNTY SHERIFF’S DEPARTMENT;

SAN MATEO COUNTY SHERIFF DON

20 HORSLEY, in his individual and official

capacity; SAN MATEO COUNTY

21 SHERIFF’S DEPUTIES DOES 1

THROUGH 100; and DOES 1 THROUGH,

22 150 INCLUSIVE, et al.,

23

Defendants.

24
25
26
27
28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

PLAINTIFFS ALLEGE: INTRODUCTION
This is an action for declaratory and injunctive relief, damages, and punitive damages against the COUNTY OF SAN MATEO, its SHERIFF, DON HORSLEY,

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 1 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 2 of 13

1 SHERIFF’S DEPARTMENT, and SHERIFF DEPUTIES sued herein by their fictitious

2 names for violations of plaintiff’s constitutional rights resulting from application of the

3 county of San Mateo’s and the Sheriff’s policies, practices, and customs concerning

4 the use of strip searches and visual body cavity searches in the San Mateo County

5 Jails. Plaintiff seeks an order declaring illegal defendants’ policy of subjecting

6 detainees in their custody to strip and visual body cavity searches before they are

7 arraigned and without having any reasonable suspicion that the searches will be

8 productive of contraband.

9

Defendants’ strip search and visual body cavity search policies, practices, and

10 customs violate plaintiff’s rights secured to them by the Fourth and Fourteenth

11 Amendments to the U.S. Constitution and entitle plaintiff to recover damages under

12 the Federal Civil Rights Act (42 U.S.C. sec 1983).

13

Additionally, plaintiff includes supplemental claims under California state law

14 against defendants: 1) for violation of California Penal Code sec 4030 which prohibits

15 pre-arraignment strip searches of most misdemeanents and provides for minimum

16 damages of $1,000 for each illegal search; and 2) for violation of the Unruh Civil Rights

17 Act (California Civil Code sec 52 and 52.1(b)) pursuant to which each plaintiff denied a

18 statutory or state or federal Constitutional right is entitled to recover a minimum of

19 $4,000 for each violation.

20

JURISDICTION

21

1. This action is brought pursuant to 42 USC sec 1983 and 1988, and the

22 Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is

23 founded upon 28 USC sec 1331 and 1341(3) and (4) and the aforementioned statutory

24 and constitutional provisions.

25

2. The court has supplemental jurisdiction over plaintiff’s state claims under

26 28 USC sec 1367(a).

27

3. The amount in controversy exceeds $10,000, excluding interest and

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

costs.
Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 2 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 3 of 13

1

PARTIES

2

4. Plaintiff SHANNON GALLAGHER, and all those similarly situated, are,

3 and at all material times herein, were citizens of the United States and residents of the

4 state of California who were arrested within the period beginning three (3) years before

5 July 10, 2000, and continuing to this date, and who were subjected to strip and/or

6 visual body cavity searches at any and all San Mateo County Jails (hereinafter

7 referred to as the “San Mateo Jail”), prior to being arraigned and/or without the

8 defendants first having, and recording in writing, a reasonable suspicion that the

9 searches would be productive of contraband or weapons.

10

5. Defendant COUNTY OF SAN MATEO SHERIFF DON HORSLEY is, and

11 at all material times referred to herein, was the duly elected Sheriff of the county of

12 San Mateo, responsible for administering the Jail facilities and for making, overseeing,

13 and implementing the policies, practices, and customs challenged herein relating to

14 the operation of the San Mateo Jail. He is sued in his individual and official capacities.

15

6. Defendants SAN MATEO COUNTY SHERIFF DEPUTIES sued herein

16 by their fictitious names (Does 1 through 150) are all deputies who, as part of their

17 duties at the San Mateo Jails, subjected plaintiff to pre-arraignment strip and/or visual

18 body cavity searches without first having, and recording in writing, a reasonable

19 suspicion that the searches would be productive of contraband or weapons.

20

7. At all material times mentioned herein, each of the defendants was

21 acting under the color of law, to wit, under color of statutes, ordinances, regulations,

22 policies, customs and usages of the State of California, the COUNTY OF SAN MATEO

23 and/or the SAN MATEO COUNTY SHERIFF.

24

8. Defendant COUNTY OF SAN MATEO is, and at all material times

25 referred to herein, was, a division of the state of California, that maintained or

26 permitted an official policy or custom or practice causing or permitting the occurrence

27 of the types of wrongs complained of herein, which wrongs damaged plaintiff as herein

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

alleged. Plaintiff’s allegations against the COUNTY are based on acts and omissions

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 3 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 4 of 13

1 of the SHERIFF and his deputies and on acts and omissions of persons who are

2 COUNTY employees, and on the COUNTY’s breach of its duty to protect plaintiff from

3 the wrongful conduct of said persons and employees.

4

9. Defendants SAN MATEO COUNTY SHERIFF’S DEPARTMENT and

5 SAN MATEO COUNTY SHERIFF DON HORSLEY, in his individual and official

6 capacity, also maintained or permitted an official policy or custom or practice causing

7 or permitting the occurrence of the types of wrongs complained of herein, which

8 wrongs damaged plaintiff as herein alleged.

9

10. Class action plaintiffs are those similarly situated who, during the period

10 beginning three (3) years before July 10, 2000, and continuing to this date, were

11 subjected by defendants to pre-arraignment strip and/or visual body cavity searches

12 without defendants having, and recording in writing, a reasonable suspicion that the

13 searches would be productive of contraband or weapons.

14

FACTS

15

11. On July 10, 2003 at approximately 1:00 p.m., in the City of Pacifica,

16 plaintiff, SHANNON GALLAGHER was arrested by a member of the Pacifica Police

17 Department on a three year old San Francisco County traffic warrant for driving on a

18 suspended license.

19

12. Despite the fact that plaintiff had a valid driver’s license in her possession

20 that had been issued nine months earlier, she was arrested and taken to Pacifica

21 Police Department and placed in a holding cell.

22

13. Plaintiff remained at Pacifica Police Department for a short period of

23 time, and was then taken to the San Mateo County Jail at Redwood City where she

24 remained for three hours and was subjected to a strip search and a visual body cavity

25 search.

26

14. Plaintiff remained at the San Mateo County Jail in Redwood City for

27 approximately three hours when she was then handcuffed and placed in a van and

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

transported to the San Mateo County Women’s Correctional Center.

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 4 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 5 of 13

1

15. Upon entry to the correctional facility, plaintiff was strip searched for a

2 second time and once again subjected to a visual body cavity search.

3

16. During both of these visual body cavity searches, plaintiff was compelled

4 to expose her genitalia and other private parts and was left standing naked for a

5 significant period of time. She remained in San Mateo County Women’s Correctional

6 Center for several more hours prior to bailing out.

7

17. Plaintiff was given a court date of August 18, 2003 in San Francisco

8 County when the charges against her were dropped.

9

18. Within six months of her arrest, plaintiff SHANNON GALLAGHER filed a

10 group government tort claim for herself and for all persons similarly situated (a copy of

11 said claim is attached hereto as Exhibit A, and incorporated herein to the extent

12 relevant by this reference). Plaintiff GALLAGHER’s group claim was denied on or

13 about January 15, 2004 allowing the filing of this Complaint.

14

19. Plaintiff is informed and believes, and thereon alleges, that defendants

15 routinely follow their policy, practice, and custom of subjection pre-arraignment

16 detainees, including, plaintiffs, to strip and visual body cavity searches without having,

17 and recording in writing, a reasonable suspicion that the search will be productive of

18 contraband or weapons.

19

20. Plaintiff is informed and believes, and thereon alleges, that defendants

20 have the ability to identify all such similarly situated plaintiffs, specifically those who,

21 while in defendants’ custody, at the San Mateo Jail since July 10, 2000, were

22 subjected to strip searches and/or visual body cavity searches prior to arraignment

23 without defendants first having, and recording, a reasonable suspicion that the

24 searches would be productive of contraband or weapons.

25

21. Defendant SHERIFF DON HORSLEY is personally responsible for the

26 promulgation and continuation of the strip search policy, practice, and custom

27 pursuant to which some of the plaintiffs herein were subjected to searches complained

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

of herein.
Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 5 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 6 of 13

1

22. As a result of being subjected to the searches complained of herein,

2 each of the plaintiffs suffered physical, mental, and emotional distress, invasion of

3 privacy, and violation of due process of law and state and federal statutory and

4 constitutional rights, and is entitled to recover damages according to proof, but, at a

5 minimum, $1,000 as specified in California Penal Code § 4030 (p) and $4,000 as

6 specified in California Civil Code § 52 and § 52.1(b).

7

CLASS CLAIMS

8

23. The strip and visual body cavity searches to which plaintiff were

9 subjected were performed pursuant to policies, practices, and customs of defendants

10 SHERIFF HORSLEY, COUNTY OF SAN MATEO SHERIFF’S DEPARTMENT,

11 COUNTY OF SAN MATEO, and the individual deputies sued herein by the fictitious

12 names 1 through 150. The searches complained of herein were performed without

13 regard to the nature of the alleged offense for which plaintiff had been arrested,

14 without regard to whether or not plaintiff were eligible for cite and release under Penal

15 Code sec 853.6, without regard to whether or not plaintiff was eligible for and/or were

16 released on their own recognizance. Furthermore, the searches complained of herein

17 were performed without defendants having a reasonable belief that the plaintiff so

18 searched possessed weapons or contraband, or that there existed facts supporting a

19 reasonable belief that the searches would produce contraband, and those facts being

20 articulated and recorded in a supervisor-approved document.

21

24. Plaintiff brings this action on her own behalf and on behalf of all persons

22 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure and California

23 Code of Civil Procedure sec 382.

24

25. The class is defined to include all persons who, in the period from and

25 including July 10, 2003, to the present and continuing until this matter is adjudicated

26 and the practices complained of herein cease, were arrested and subjected to a pre-

27 arraignment strip and/or visual body cavity search at the San Mateo Jail without

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

defendants having, and recording, a reasonable suspicion that the search would be

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 6 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 7 of 13

1 productive of contraband or weapons.

2

26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

3 members of the class are so numerous that joinder of all members is impractical.

4 Plaintiff does not know the exact number of class members. Plaintiff is informed and

5 believe, and thereupon allege, that there are more than 100 persons per day who are

6 arrested by defendants and/or in the custody of defendants and subjected to the

7 searches complained of herein as a result of defendants’ policy, practice, and custom

8 relating to said searches. Plaintiff is informed and believe, and therefore allege, that

9 there are tens of thousands of persons in the proposed class.

10

27. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff

11 is informed and believes, and thereupon alleges, that there are many questions of fact

12 common to the class including, but not limited to: (1) whether defendants routinely

13 subject all persons arrested to visual body cavity searches prior to arraignment if they

14 intend such persons to be housed in a San Mateo County Jail; (2) whether persons

15 are subjected to visual body cavity searches prior to arraignment without there being

16 any reasonable suspicion, based on specific or articulable facts, to believe any

17 particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities

18 which could be detected by means of a visual body cavity search; (3) whether the

19 visual body cavity searches are conducted in an area of privacy so that the searches

20 cannot be observed by persons not participating in the searches, or whether the visual

21 body cavity searches are conducted in groups and/or in open areas where they may

22 be observed by persons not participating in the searches; and, (4) whether the visual

23 body cavity searches are reasonably related to defendants’ penological interest to

24 maintain the security of the jail and whether or not there are less intrusive methods for

25 protecting any such interest.

26

28. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff

27 is informed and believes, and thereupon alleges, that there are many questions of law

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

common to the class including, but are not limited to: (1) whether defendants may

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 7 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 8 of 13

1 perform visual body cavity searches on persons prior to their arraignment without

2 reasonable suspicion, based on specific or articulable facts, to believe any particular

3 inmate has concealed drugs, weapons and/or contraband which would likely be

4 discovered by a visual body cavity search; (2) whether defendants may perform visual

5 body cavity searches on persons without first reasonably relating the use of the visual

6 body cavity search to defendants’ penological interest to maintain the security of the

7 jail and determining if there is a less intrusive method to protect that interest; (3)

8 whether visual body cavity searches may be conducted in areas where the search can

9 be observed by people not participating in the search without violating plaintiff’s State

10 and Federal constitutional rights and the protections afforded to plaintiff under

11 California Penal Code section 4030; and, (4) whether or not defendants’ strip search

12 policy and procedure is in accordance with the State and/or Federal Constitution.

13

29. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

14 claims of the representative plaintiff are typical of the class. Plaintiff was searched,

15 prior to arraignment, without reasonable suspicion that a strip or visual body cavity

16 search would produce drugs, weapons or contraband (and without the facts supporting

17 any such suspicion being articulated in a supervisor-approved writing). Representative

18 plaintiff has the same interests and suffered the same type of injuries as all of the

19 class members. Plaintiff’s claims arose because of defendants’ policy, practice, and

20 custom of subjecting arrestees to strip and/or visual body cavity searches before

21 arraignment without having, and recording in writing, a reasonable suspicion that the

22 search would be productive of contraband or weapons. Plaintiff’s claims are based

23 upon the same legal theories as the claims of the class members. Each class member

24 suffered actual damages as a result of being subjected to a visual body cavity search.

25 The actual damages suffered by representative plaintiff are similar in type and amount

26 to the actual damages suffered by each class member.

27

30. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

representative plaintiff will fairly and adequately protect the class interests. Plaintiff’s

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 8 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 9 of 13

1 interests are consistent with and not antagonistic to the interests of the class.

2

31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A),

3 prosecutions of separate actions by individual members of the class would create a

4 risk that inconsistent or varying adjudications with respect to individual members of the

5 class would establish incompatible standards of conduct for the parties opposing the

6 class.

7

32. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B),

8 prosecutions of separate actions by individual members of the class would create a

9 risk of inconsistent adjudications with respect to individual members of the class which

10 would, as a practical matter, substantially impair or impede the interests of the other

11 members of the class to protect their interests.

12

33. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2),

13 plaintiff is informed and believes, and thereupon alleges, that defendants have acted

14 on grounds generally applicable to the class, thereby making appropriate the final

15 injunctive or declaratory relief with respect to the class as a whole.

16

34. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this

17 class action is superior to other available methods for the fair and equitable

18 adjudication of the controversy between the parties. Plaintiff is informed and believes,

19 and thereupon alleges, that the interests of members of the class in individually

20 controlling the prosecution of a separate action is low, in that most class members

21 would be unable individually to prosecute any action at all. Plaintiff is informed and

22 believes, and thereupon alleges, that the amounts at stake for individuals are so small

23 that separate suits would be impracticable. Plaintiff is informed and believes, and

24 thereupon alleges, that most members of the class will not be able to find counsel to

25 represent them. Plaintiff is informed and believes, and thereupon alleges, that it is

26 desirable to concentrate all litigation in one forum because all of the claims arise in the

27 same location; i.e., the COUNTY OF SAN MATEO. It will promote judicial efficiency to

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

resolve the common questions of law and fact in one forum, rather than in multiple

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 9 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 10 of 13

1 courts.

2

35. Plaintiff does not know the identities of all of the class members. Plaintiff

3 is informed and believes, and thereupon alleges, that the identities of the class

4 members may be ascertained from records maintained by the COUNTY OF SAN

5 MATEO and defendant SHERIFF DON HORSLEY and defendant COUNTY OF SAN

6 MATEO SHERIFF’S DEPARTMENT. Plaintiff is informed and believes, and thereupon

7 alleges, that defendants’ records reflect the identities, including addresses and

8 telephone numbers, of the persons who have been held in custody in the San Mateo

9 Jails. Plaintiff is informed and believes, and thereupon alleges, that records of, and

10 maintained by defendants reflect who was subject to a strip and/or visual body cavity

11 search, when the search occurred, where the search occurred, whether any

12 reasonable suspicion for the search existed and was recorded in a supervisor-

13 approved writing, when persons searched were arraigned, the charges on which such

14 persons were arrested, and what treatment they received while so confined. Plaintiff is

15 informed and believes, and thereupon alleges, that all of the foregoing information is

16 contained in defendants’ computer system and that the information necessary to

17 identify the class members, by last known addresses, and the dates and reasons for

18 their arrests and/or release from custody, is readily available from said computer

19 system.

20

36. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class

21 members must be furnished with the best notice practicable under the circumstances,

22 including individual notice to all members who can be identified through reasonable

23 effort. Plaintiff is informed and believes, and thereupon alleges, that defendants’

24 computer records contain a last known address for class members. Plaintiff

25 contemplates that individual notice will be given to class members at such last known

26 address by first class mail. Plaintiff contemplates that the notice will inform class

27 members of the following:

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

1. The pendency of the class action and the issues common to the

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 10 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 11 of 13

1

class;

2

2. The nature of the action;

3

3. Their right to “opt out” of the action within a given time, in which

4

event they will not be bound by a decision rendered in the class

5

action;

6

4. Their right, if they do not “opt out,” to be represented by their own

7

counsel and to enter an appearance in the case; otherwise they

8

will be represented by the named class plaintiff and their counsel;

9

and

10

5. Their right, if they do not “opt out,” to share in any recovery in

11

favor of the class, and conversely to be bound by any judgment

12

on the common issues adverse to the class.

13

COUNT ONE

14

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

15

on behalf of Plaintiff and all persons similarly situated)

16

37. Defendants’ policies, practices, and customs regarding the strip and

17 visual body cavity searches complained of herein violated plaintiff’s rights under the

18 Fourth Amendment to be free from unreasonable searches and seizures, violated said

19 plaintiff’s rights to due process and privacy under the Fourteenth Amendment, and

20 directly and proximately damaged plaintiff as herein alleged, entitling plaintiff to

21 recover damages for said constitutional violations pursuant to 42 U.S.C. sec 1983.

22 WHEREFORE, plaintiff prays for relief as hereunder appears.

23

COUNT TWO

24

(California State Unruh Civil Rights Act, Civil Code sec 52 and 52.1,

25

on behalf of Plaintiff and all persons similarly situated)

26

38. Defendants’ policies, practices, and customs regarding the strip and

27 visual body cavity searches complained of herein violated plaintiff’s rights to privacy as

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

secured by Article I, Section 1 of the California Constitution and directly and

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 11 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 12 of 13

1 proximately damaged plaintiff as herein alleged, entitling said plaintiff to recover a

2 minimum of $4,000 each pursuant to California Civil Code sec 52.1 and sec 52, in

3 addition to other damages.

4 WHEREFORE, plaintiff pray for relief as hereunder appears.

5

6

COUNT THREE

7 (Violation of California Penal Code sec 4030, California State Unruh Civil Rights Act,

8 Civil Code sec 52 and 52.1, on behalf of Plaintiff and all persons similarly situated)

9

39. Defendants’ policies, practices, and customs regarding the strip and

10 visual body cavity searches complained of herein violated rights secured to plaintiff

11 under California Penal Code sec 4030 and directly and proximately damaged plaintiff

12 as herein alleged, entitling said plaintiff to recover a minimum of $1,000 each pursuant

13 to California Penal Code sec 4030(p), and to further minimum damages of $4,000

14 each pursuant to California Civil Code sec 52.1 and sec 52, in addition to other

15 damages.

16 WHEREFORE, plaintiff prays for relief as hereunder appears.

17

PRAYER FOR RELIEF

18 WHEREFORE, plaintiff seeks judgment as follows:

19

1. For declaratory and injunctive relief declaring illegal and enjoining,

20 preliminarily and permanently, defendants’ policies, practices, and customs of

21 subjecting pre-arraignment detainees to strip and visual body cavity searches without

22 having a reasonable suspicion that such searches would be productive of contraband

23 or weapons.

24

2. Certification of the action as a class action;

25

3. For compensatory, general, and special damages for each

26 representative and for each member of the class of plaintiff, as against all defendants;

27

4. Exemplary damages as against each of the individual defendants in an

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

amount sufficient to deter and to make an example of those defendants;

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 12 USCD Northern District Case No. ____

Case 4:04-cv-00448-SBA Document 1 Filed 02/03/2004 Page 13 of 13

1

5. In addition to compensatory and statutory damages as allowed by law, at

2 least $4,000 for each plaintiff pursuant to California Civil Code sec 52.1 and sec 52;

3

6. Attorneys’ fees and costs under 42 U.S.C. sec 1988, California Civil

4 Code sec 52(b)(3), California Civil Code sec 52.1(h), and California Code of Civil

5 Procedure sec 1021.5; and

6

7. The cost of this suit and such other relief as the court finds just and

7 proper.

8

9 A JURY TRIAL IS HEREBY DEMANDED.

10

11 Dated: 12 13

Andrew C. Schwartz CASPER, MEADOWS & SCHWARTZ Attorneys for Plaintiff

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Class Action Complaint Gallagher, et al. v. County of San Mateo, et al.

Page 13 USCD Northern District Case No. ____

 
 Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 1 of 16

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
SHANNON GALLAGHER, et. al., 8
Plaintiffs, 9 v.

No. C 04-448 SBA ORDER

10 COUNTY OF SAN MATEO, et. al.,

11

Defendants.

_______________________________________/

12

[Docket No. 14]

This matter comes before the Court on Plaintiff Shannon Gallagher's Motion for Class 13

Certification. Having read and considered the arguments presented by the parties in the papers 14

submitted to the Court, the Court finds this matter appropriate for resolution without a hearing. The 15

16 Court hereby GRANTS Plaintiff Shannon Gallagher's Motion for Class Certification [Docket No. 14].

17

BACKGROUND

18 A. Factual Background

19

1. Parties

20

Plaintiff Shannon Gallagher ("Plaintiff" or "Gallagher"), and all those similarly situated, are

21 California residents who are citizens of the United States and who were allegedly arrested and

22 compelled to comply with strip and/or visual body cavity searches1 at any and all San Mateo County

23 Jails prior to being arraigned, without the County of San Mateo or its employees first having, and

24 recording in writing, a reasonable suspicion that the searches would produce contraband or weapons.

25 Compl. at ¶¶ 2-9.

26

27

1Pursuant to the California Penal Code, a strip search or visual body cavity search is "a search which requires a person to remove or arrange some or all of his or her clothing so as to permit

28

a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person." Cal. Penal Code § 4030(c).

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 2 of 16

United States District Court For the Northern District of California

1

Defendant County of San Mateo Sheriff Don Horsley is the duly elected sheriff of the county

2 of San Mateo responsible for administering the jail facilities and for producing, overseeing, and

3 implementing the policies, practices, and customs relating to the operation of the San Mateo Jail. Id.

4 at ¶¶ 10-14.

5

Defendant County of San Mateo is a division of the state of California that allegedly adopted

6 and maintained an official policy or custom or practice that "authorize[d] by its terms the strip/visual

7 body cavity search of any prisoner . . . being placed into the jail population where inmates are assigned

8 to live for twenty-four hours or longer." Pl's Mot. at 5. Defendant San Mateo County Sheriff's

9 Department also allegedly maintained or permitted this policy or custom or practice. Id. at ¶ 9.2

10

2. Allegations

11

On July 10, 2003, a member of the Pacifica Police Department arrested Gallagher in the city of

12 Pacifica, pursuant to a three-year-old San Francisco County traffic warrant for driving on a suspended

13 license. Compl. at ¶¶ 15-18.

14

At the time of her arrest, however, Gallagher claims that she possessed a valid driver's license,

15 which had been issued to her nine months earlier. Id. at ¶¶ 19-21. Gallagher was nonetheless arrested

16 and transported to the Pacifica Police Department where she remained in a holding cell for a short

17 period of time. Id. at ¶¶ 20-22.

18

Subsequently, pursuant to County of San Mateo policy and practice, Gallagher was transported

19 to the McGuire Correctional Facility ("MCF") in downtown Redwood City. Compl. at ¶ 23; Decl. of

20 Mark E. Merin ("Merin Decl.") at Ex. B (Gallagher Depo. at 23:20-26:5) and Ex. C (Trindle Depo. at

21 20:8-17). While at MCF, Gallagher was allegedly subjected to a strip/visual body cavity search.

22 Compl. at ¶¶ 24-25; Merin Decl. at Ex. B (Gallagher Depo. at 35:14-19).

23

After remaining at MCF for approximately three hours, Gallagher was allegedly handcuffed and

24 placed in a van to be transported to the San Mateo Women's Correctional Facility ("WCF"). Compl.

25 at ¶¶ 27-28; Merin Decl. at Ex. B (Gallagher Depo. at 45:20-46:12). At WCF, any woman who was

26 admitted to the facility and unable to make bail was subjected to a strip/visual body cavity search before

27 2Don Horsley, the County of San Mateo, and the San Mateo County Sheriff's Department are
28 collectively referred to herein as "Defendants."

2

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 3 of 16

United States District Court For the Northern District of California

1 being released to the general population of the facility. See Merin Decl. at Ex. G (Peters Depo. at 12:8-

2 13:1). Accordingly, Gallagher was once again compelled to comply with a strip/visual body cavity

3 search. Compl. at ¶¶ 1-2; Merin Decl. at Ex. B (Gallagher Depo. at 45:20-46:12).

4

During both of the alleged visual body cavity searches, Gallagher was required to expose her

5 genitalia and other private parts of her anatomy and was then left standing naked for a period of time.

6 Id. at ¶¶ 3-5. She remained at WCF for several hours before being released on bail. Id. at ¶¶ 6.

7 Although Gallagher received a court date of August 18, 2003, to take place in San Francisco County,

8 the charges against her were subsequently dropped. Id. at ¶¶ 7-8.

9 B. Procedural Background

10

Gallagher filed an administrative group government tort claim within six months of her arrest,

11 for herself and for all other persons similarly situated. Compl. at ¶¶ 9-13. The group tort claim was

12 denied on or about January 15, 2004. Id. On February 3, 2004, Gallagher filed the instant Class Action

13 Complaint ("Complaint"). The Complaint is brought on behalf of Gallagher and all persons similarly

14 situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure and California Code of Civil

15 Procedure § 382, and is brought against San Mateo County, the San Mateo Sheriff's Department, and

16 San Mateo County Sheriff Don Horsley. The Complaint alleges the following causes of action: (1)

17 violation of the Fourth and Fourteenth Amendments to the United States Constitution, brought pursuant

18 to 42 U.S.C. § 1983; (2) violation of the California Constitution, brought pursuant to California Civil

19 Code §§ 52 and 52.1; (3) violation of California Penal Code § 4030.3

20

Gallagher's Motion for Class Certification was filed on April 22, 2005. Defendants filed an

21 opposition to Gallagher's motion on May 17, 2005.

22

After receiving Gallagher's Motion for Class Certification, Defendants' Opposition, and

23 Gallagher's Reply Brief, the Court ordered the parties to submit supplemental briefing regarding the start

24

25

3The California legislature enacted California Penal Code § 4030 after discovering that

"some present search practices violate state and federal constitutional rights to privacy and freedom 26 from unreasonable searches and seizures." Cal. Penal Code § 4030(a). Accordingly, the statute

provides a civil remedy for individuals who were "arbitrarily subjected to unnecessary strip and 27 body cavity searches after arrests for minor misdemeanor and infraction offenses." Id. An

individual initiating a valid claim alleging violation of Section 4030 may potentially recover actual 28 damages or one thousand dollars, whichever is greater.

3

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 4 of 16

United States District Court For the Northern District of California

1 and end dates for each of Gallagher's proposed classes. See June 6, 2005 Order.

2

LEGAL STANDARD

3

Class certification is governed by Federal Rule of Civil Procedure 23, which sets forth a two-step

4 procedure. First, the Court must determine that the following four requirements of Rule 23(a) have been

5 satisfied: (1) numerosity; (2) common questions of law and fact; (3) typicality; and (4) fair and adequate

6 representation. Fed. R. Civ. P. 23(a). Once these requirements are met, the plaintiff must also show that

7 the lawsuit qualifies for class action status under one of the four possibilities found in Rule 23(b). The

8 plaintiff bears the burden of proving that certification is appropriate. See Hawkins v. Comparet-Cassani,

9 251 F.3d 1230, 1238 (9th Cir. 2001).

10

Of the four criteria set forth in Rule 23(b), in the instant case, Gallagher alleges that Rule

11 23(b)(3) is applicable. Under Rule 23(b), the Court must find that the questions of law or fact common

12 to the members of the class predominate over any questions affecting only individual members, and that

13 a class action is superior to other available methods for the fair and efficient adjudication of the

14 controversy. Fed. R. Civ. P. 23(b). The matters pertinent to a finding under Rule 23(b)(3) include: (a)

15 the interest of members of the class in individually controlling the prosecution or defense of separate

16 actions; (b) the extent and nature of any litigation concerning the controversy already commenced by

17 or against members of the class; (c) the desirability or undesirability of concentrating the litigation of

18 the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a

19 class action. Id.

20

The Court maintains great discretion in certifying a class action. Vizena v. Union Pac. R. R. Co.,

21 360 F.3d 496, 502 (5th Cir. 2004). The Court must rigorously analyze whether the class action

22 allegations meet the requirements of Rule 23. See General Telephone Co. of the Southwest v. Falcon,

23 457 U.S. 147, 161 (1982). However, "[b]ecause the early resolution of the class certification question

24 requires some degree of speculation . . . all that is required is that the Court form a 'reasonable judgment'

25 on each certification requirement." In re Citric Acid Antitrust Litig., 1996 WL 655791 *2 (N.D. Cal.

26 1996). "In formulating this judgment, the Court may properly consider both the allegations of the class

27 action complaint and the supplemental evidentiary submissions of the parties." In re Citric Acid, 1996

28 WL 655791 at * 2. The Court may also consider how the plaintiffs' claims will be tried. Castano v. Am.

4

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 5 of 16

United States District Court For the Northern District of California

1 Tabacco Co., 84 F.3d 734, 744 (5th Cir. 1996).

2

ANALYSIS

3

In the instant case, Gallagher seeks an order certifying the following classes pursuant to Rule

4 23(b)(3):

5

1. For the federal claim ("Class One"):

6

All women who, from February 3, 2002 to December 2, 2003, were arrested on any

7

charge (including felonies) not involving weapons, controlled substances, or violence,

8

and not involving a violation of parole or a violation of probation (where consent to

9

search is a condition of such probation), and who were subjected to a uniform and

10

indiscriminate (blanket) strip/visual body cavity search by defendants before arraignment

11

at the San Mateo County Jail without any individualized reasonable suspicions that they

12

were concealing contraband. This class also includes all female arrestees who were

13

subjected to subsequent blanket strip search before arraignment after the initial

14

strip/visual body cavity search without any reasonable individualized suspicion that they

15

had subsequently acquired and hidden contraband on their persons.

16

2. For the state law claim ("Class Two")4:

17

All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on an

18

infraction or misdemeanor charge and brought to the San Mateo County Jail and who

19

were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity search

20

before arraignment without written supervisorial authorization, as required under

21

22

4The Court notes that Gallagher refers to Class One as including both "state" and "federal"

claims. There are two state law claims alleged in Gallagher's complaint: (1) claims relating to 23 violations of the California Constitution brought under California Civil Code §§ 52 and 52.1; and (2)

claims brought under California Penal Code § 4030. However, Defendants contend that California 24 Civil Code §§ 52 and 52.1 do not provide Gallagher with the right to bring a class action on behalf

of other persons. Indeed, Section 52.1 only provides that a plaintiff "may institute and prosecute in 25 his or her own name and on his or her own behalf." Cal. Civ. Code § 52.1. Since Gallagher

provides no response to Defendants' argument even though it is her burden to do so, and since 26 Defendants' argument appears to be correct, the Court concludes that the only state law claim that is

cognizable as part of the class action litigation is Gallagher's California Penal Code § 4030 claim. 27 Since Gallagher concedes that this claim only affects "Class Two," then "Class One" may recover

for Gallagher's federal claim only. The Court's conclusion does not affect Gallagher's right to pursue 28 recovery under California Civil Code §§ 52 and 52.1 individually.

5

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 6 of 16

United States District Court For the Northern District of California

1

California Penal Code § 4030(f).

2

Each of the requirements for class certification are addressed below. See General Telephone Co.

3 of Southwest, 457 U.S. at 161 (A "class action may only be certified if the trial court is satisfied, after

4 a rigorous analysis, that the prerequisites of [Rule 23] have been satisfied.").

5 A. Ascertainability.

6

An implied prerequisite to certification is that the classes must be sufficiently defined. See

7 DeBremaeker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). An identifiable class exists if its members

8 can be ascertained by reference to objective criteria. See, e.g., id. at 734-35 (court declined to certify

9 a class made up of Texas residents "active in the peace movement" because identification of members

10 was dependent on their subjective states of mind). Class members need not be ascertained prior to

11 certification, but "the exact membership of the class must be ascertainable at some point in the case."

12 In re Initial Pub. Offering Sec. Litig., 2004 U.S. Dist. LEXIS 20497, at *65-66 (S.D.N.Y. 2004). It must

13 thus be "administratively feasible for a court to determine whether a particular individual is a member"

14 of the class. Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y. 1983). "The Court must be able to make

15 this determination without having to answer numerous fact-intensive questions." Daniels v. City of New

16 York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001).

17

In the instant matter, Gallagher requests that the Court certify two classes, Class One and Class

18 Two, and contends that both classes are sufficiently ascertainable. Specifically, Gallagher notes that

19 the eligibility of a female arrestee for membership in the proposed classes is objective and can be

20 obtained from records and computer data maintained by Defendant San Mateo County. See Merin.

21 Decl. at Ex. E (Lunny Depo. at 59:21-60:12) (noting that the jail's computer indicates the charges on 22 which the arrestee is booked and whether the arrestee was housed in a facility before arraignment). 23 Gallagher also notes that, since the strip/body cavity search was indiscriminately applied, there would 24 be no need to scrutinize individual files.5 Gallagher's arguments are well-supported. Indeed, in a recent 25 case before Judge Breyer, Bull v. City & County of San Francisco, C 03-1840, a similarly defined class 26

27

5Gallagher further contends that the number of women who were, in fact, searched on the

basis of documented, individualized suspicion will likely be very small and that such women will be 28 excluded from the class.

6

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 7 of 16

United States District Court For the Northern District of California

1 was found to be ascertainable and thus certifiable. Further, as set forth below, since Gallagher has now

2 provided start and end dates for the proposed classes, the Court finds that she has sufficiently satisfied

3 the ascertainability prerequisite to certification.

4

1. Class One

5

Specifically, Gallagher proposes that Class One shall have a start date of February 3, 2002 and

6 an end date of December 2, 2003. Class One consists of individuals asserting claims under the Fourth

7 and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. In Johnson v. State of California, 207 F.3d

8 650, 653 (9th Cir. 2000), the Ninth Circuit determined that the applicable limitations period for federal

9 civil rights actions is borrowed from the forum state's statute of limitations for personal injury actions.

10 California Code of Civil Procedure § 335.1 provides that the applicable period of limitations is two

11 years. Because February 3, 2002 is approximately two years prior to the date Gallagher initiated her

12 action, Gallagher proposes February 3, 2002 as the start date for Class One. Gallagher proposes an end

13 date of December 2, 2003 because, according to Gallagher, this is the date "when the custom of

14 indiscriminately and uniformly strip searching of female pre-arraignment arrestees was corrected." Id.

15 Defendants do not oppose the proposed start or end dates.

16

2. Class Two

17

Class Two consists of individuals asserting claims under California Penal Code § 4030. In

18 California, prior to maintaining a lawsuit against a public entity, a plaintiff is required to comply with

19 the guidelines set forth in the California Tort Claims Act. Pursuant to California Government Code §

20 945.4 "no suit for money or damages may be brought against a public entity on a cause of action for

21 which a claim is required to be presented . . . until a written claim therefor has been presented to the

22 public entity and has been acted upon by the board, or has been deemed to have been rejected by the

23 board[.]" Additionally, California Government Code § 911.2 provides that, "[a] claim relating to a cause

24 of action for death or for injury to person or to personal property . . . shall be presented . . . not later than

25 six months after the accrual of the cause of action." Finally, section 945.6 requires, "any suit brought

26 against a public entity on a cause of action for which a claim is required to be presented . . . be

27 commenced, if written notice [rejecting the claim] is given . . . not later than six months after the date

28 such notice is personally delivered or deposited in the mail." Cal. Gov. Code § 945.6.

7

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 8 of 16

United States District Court For the Northern District of California

1

According to the California Court of Appeals in Schmidt v. Southern California Rapid Transit

2 Dist., 14 Cal. App. 4th 23, 25-26 (1993), "the combined effect of sections 911.2 and 945.6 is that a claim

3 for a personal injury action against a public entity must be presented within six months of the injury;

4 and if the claim is denied, suit must be filed within six months of the date of denial." Id.

5

In her Complaint, Gallagher alleges that she was injured on or about July 10, 2003. She further

6 alleges that she filed a group government tort claim on December 12, 2003. The group tort claim was

7 denied on or about January 4, 2004. Gallagher commenced this class action on February 3, 2004.

8 Gallagher therefore proposes June 12, 2003 as the start date for Class Two, which is six months before

9 her tort claim was filed. Defendants do not oppose June 12, 2003 as the start date. Gallagher also

10 proposes, and Defendants do not oppose, December 2, 2003 as an end date for Class Two.

11 B. Federal Rule 23(a) Requirements.

12

1. Numerosity

13

Rule 23(a)'s first requirement is that the proposed classes must be so numerous that joinder of

14 all members is "impracticable." Fed. R. Civ. P. 23(a)(1). "Impracticable" does not mean "impossible,"

15 and a plaintiff only need establish the difficulty or inconvenience of joining all members of the class to

16 meet the numerosity requirement. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14

17 (9th Cir. 1964). There is no set numerical cutoff; a court must examine the specific facts of each case

18 to determine whether numerosity has been satisfied.6 General Tel. Co. of the Northwest v. EEOC, 446

19 U.S. 318, 329-30 (1980). Moreover, a plaintiff need not allege the exact number of class members, "but

20 may instead [make a reasonable] estimate on the basis of the size of a disputed offering." Brosious v.

21 Children's Place Retail Stores, 189 F.R.D. 138, 145 (D.N.J. 1999).

22

Given the proposed start and end dates for all claims initiated by both Class One and Class Two,

23 Gallagher estimates that Class One may be comprised of at least 2,000 individuals. Defendants, on the

24

25

6 Although neither Rule 23(a) nor the courts have imposed an absolute "magic number,"

some courts have held that numerosity may be presumed at a level of forty members. See, e.g., 26 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). On the other hand,

classes of fifteen or fewer people have frequently been rejected as too small for certification. See, 27 e.g., General Tel. Co., 446 U.S. at 329-30 (fifteen affected employees "would be too small to meet

the numerosity requirement"); Harik v. Cal. Teachers Ass’n, 298 F.3d 863, 872 (9th Cir. 2002) 28 (certification of classes of seven, nine, and ten members vacated on numerosity grounds).

8

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 9 of 16

United States District Court For the Northern District of California

1 other hand, estimate that the number of potential Class One members will not exceed 1,814 women

2 arrestees. For Class Two, Gallagher estimates that membership "is certain to be greater than 200"

3 women. Defendants estimate the number to be approximately 223 women.7

4

Regardless of whether the Court accepts Gallagher's estimates or Defendants' estimates, the

5 number of potential class members for both classes is substantial and the Court therefore finds that the

6 numerosity standard is clearly met in this case.

7

2. Commonality

8

To prevail on her Motion for Certification, Gallagher must also establish that there are "questions

9 of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). As the Ninth Circuit stated in Hanlon v.

10 Chrysler Corporation, 150 F.3d 1011, 1019 (9th Cir. 1998), the commonality requirements of Rule

11 23(a) are less rigorous than the companion requirements of Rule 23(b)(3). All questions of fact and law

12 need not be common to satisfy the rule. Id. The existence of shared legal issues with divergent factual

13 predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within

14 the class. Id. Factual variations or individual differences concerning damages, for example, will

15 generally not defeat commonality. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975)

16 (differences in individual damage calculation insufficient to defeat commonality).

17

Here, according to Gallagher, "the core common question of law is whether it was legal for the

18 defendants to follow a custom and/or policy of conducting blanket strip searches and visual body cavity

19 searches of all female pre-arraignment arrestees arriving at the Women's Correctional Facility to be

20 housed pending arraignment." Gallagher further argues that given the standardized nature of the policy,

21 "each class member's claim hinges upon this single issue." Defendants, on the other hand, claim that 22 "very few of the issues to be adjudicated are common to the entire class." Instead, Defendants argue 23 that certifying Plaintiffs' proposed classes would be inefficient since the Court would be forced to 24

25

7Gallagher has raised numerous factual objections to the evidence Defendants have submitted

regarding numerosity and typicality. However, in a motion for class certification, the Court may 26 consider both the allegations of the complaint and any other "material sufficient to form a reasonable

judgment on each requirement" of Rule 23. See Blackie v. Barrack, 524 F.2d 891, 900-01 & n.17 27 (9th Cir. 1975). The materials submitted by Defendants are being considered for this limited

purpose only and are not being considered as part of a determination of whether Gallagher's claims 28 have merit. Accordingly, Gallagher's factual objections are OVERRULED.

9

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 10 of 16

United States District Court For the Northern District of California

1 examine each claim on a case-by-case basis to determine whether an officer legitimately possessed an

2 individualized suspicion that a strip search of a specific potential class member would produce

3 contraband.

4

Defendants' arguments are without merit. In an analogous case, Tardiff v. Knox County, 365

5 F.3d 1, 4 (1st Cir. 2004), the First Circuit reviewed a district court's grant of class certification for claims

6 challenging the lawfulness of a blanket strip search policy. The defendants in Tardiff similarly resisted

7 certification on the basis of two potential complications. Id. at 4. The first concern was that the strip

8 searches may have been lawful as to some groups of arrestees and not others. Id. The court, however,

9 determined that defendants' concern was alleviated by narrowing the class and excluding individuals

10 who had been arrested for drugs, weapons, or violent felonies, groups for which a strip search would

11 arguably have been appropriately required.8 Id. The second concern noted by the defendants in Tardiff

12 was that, even if the potential class were to be narrowed, there might be individuals within the remaining

13 group of arrestees who were lawfully subjected to a strip search provided it was predicated on the basis

14 of individualized, reasonable suspicion. Id. The First Circuit rejected this concern as unwarranted,

15 given that the plaintiffs had alleged that the county had a policy of strip searching every arrestee. Id.

16 at 5-6.

17

Like the certified class in Tardiff, Gallagher alleges a standardized strip/visual body cavity

18 search procedure that was applicable to all female arrestees to be housed at the correctional facility.

19 Since the policy was allegedly applied "across the board," the need to scrutinize individual claims is

20 obviated. Gallagher has accordingly satisfied the commonality requirement.

21

3. Typicality

22

The third requirement of Rule 23(a) is typicality. The typicality requirement focuses on the

23 similarity between the lead plaintiff's legal theories and those of whom he or she purports to represent.

24 Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1998). As such, "[t]he commonality and

25 typicality requirements of Rule 23(a) tend to merge." Falcon, 457 U.S. at 158 n.13. However,

26 “[t]ypicality refers to the nature of the claim . . . of the class representative, and not to the specific facts

27 8Here, there is no need for further modifications, as Plaintiff has already proposed
28 appropriately narrowed classes.

10

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 11 of 16

United States District Court For the Northern District of California

1 from which it arose or the relief sought.” See, e.g., Hanon v. Dataproducts Corp., 976 F.2d 497, 508

2 (9th Cir. 1992).

3

Here, to prove typicality, Gallagher must only establish that she is "part of the class and

4 possess[es] the same interest and suffer[ed] the same injury as the class members." Id.; accord

5 California Rural Legal Assistance, Inc. v. Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990).

6 A "representative's claims are typical if they are reasonably co-extensive with those of absent class

7 members; they need not be substantially identical." Hanlon, 150 F.3d at 1020.

8

Defendants present three arguments in support of their position that Gallagher's claims are not

9 typical: (1) Gallagher alleges that she was subjected to not just one – but two – strip searches; (2)

10 potentially, Gallagher claims are against different defendants than the other members of the putative

11 class; (3) Gallagher's injury is not typical of the other putative class members' injuries.

12

Defendants' first argument is without merit because the mere fact that Gallagher was searched

13 twice does not necessitate a finding that her claims are not typical. It is Gallagher's second search at the

14 WCF that makes her claim typical of the claims asserted by the rest of the members of the classes. See

15 Hanlon, 150 F.3d at 1020 (claims are typical if they are reasonably co-extensive with those of absent

16 class members and need not be substantially identical); see also Tardiff v. Knox County, 218 F.R.D. 332,

17 337 (D. Me. 2003) ("Although there may be class members who were searched more than once and an

18 individualized examination of the impact of the searches on specific class members may be necessary,

19 the potential for differing amounts of recovery does not automatically preclude class certification.").

20

Defendants' second argument is equally unpersuasive. Relying on La Mar v. H&B Novelty &

21 Loan Company, 489 F.2d 461, 465 (9th Cir. 1973) as authority, Defendants argue that Gallagher, who

22 has asserted causes of action against the County and Sheriff Horsley, cannot satisfy the typicality

23 requirement since she cannot maintain a cause of action against other individual defendant officers who

24 were not directly responsible for her injuries. La Mar is inapposite, however. In La Mar, the plaintiff

25 had filed suit against "all the pawn brokers licensed to conduct business under the laws of Oregon." Id.

26 at 462. Accordingly, the defendants in La Mar were a diverse group of private parties and entities, not

27 employees of the same employer who were acting pursuant to the same policy and practice. Further

28 Defendants overlook the fact that the La Mar court expressly carved out an exception for "situations in

11

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 12 of 16

United States District Court For the Northern District of California

1 which all injuries are the result of a conspiracy or concerted schemes between the defendants at whose

2 hands the class suffered injury" and "instances in which all defendants are juridically related in a manner

3 that suggest a single resolution of the dispute would be expeditious." Id. at 466. Additionally, in the

4 present suit, the named defendants are all currently persons or entities alleged to be directly responsible

5 for Gallagher's purported injuries. Accordingly, La Mar does not support a finding that class

6 certification is inappropriate here.

7

Finally, Defendants' argument regarding the difference between Gallagher's potential injuries

8 and other potential injuries recoverable by the class is misplaced. Significantly, Defendants admit that

9 Plaintiff is seeking emotional distress damages and statutory penalties, which damages are typical for

10 the putative classes, and do not refute that the injuries suffered by Plaintiff giving rise to such damages

11 are also typical of the class. Additionally, "[t]ypicality refers to the nature of the claim . . . of the class

12 representative, and not to the specific facts from which it arose or the relief sought." See, e.g., Hanon,

13 976 F.2d at 508.

14

In sum, none of Defendants' three arguments is availing. Gallagher was allegedly strip searched

15 pursuant to a blanket policy, custom and/or practice of San Mateo County. Like Gallagher's claims, all

16 of the putative class members' claims hinge on the constitutionality of that same policy, custom, and/or

17 practice. Accordingly, Gallagher has satisfied the typicality requirement.

18

4. Adequacy of Representation

19

The final requirement of Rule 23(a) is that Gallagher must be able to "fairly and adequately

20 protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Adequacy of representation assures due

21 process of law to all unnamed class members; if a person is to be conclusively bound by a judgment

22 prosecuted by a representative, he must have received adequate representation. Hansberry v. Lee, 311

23 U.S. 32, 42-43 (1940). To establish adequacy of representation, Gallagher must show: (1) that her

24 interests are common with, and not antagonistic to, the classes' interests; and (2) that she is "able to

25 prosecute the action vigorously through qualified counsel." Lerwill v. Inflight Motion Pictures, Inc.,

26 582 F.2d 507, 512 (9th Cir. 1978).

27

Here, Gallagher has produced ample evidence that she would be an adequate representative of

28 the proposed classes. As set forth above, Gallagher's interests coincide with the classes' interests.

12

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 13 of 16

United States District Court For the Northern District of California

1 Further, the declarations of Gallagher's counsel demonstrate that they have sufficient experience and

2 expertise to represent the proposed classes. See Merin Decl. at ¶¶ 11-16; Decl. of Andy Schwartz

3 ("Schwartz Decl.") at ¶¶ 5-10. Further, Defendants' challenge to the adequacy of Gallagher's

4 representation on the grounds that other members of the class may be subject to an exhaustion of

5 administrative remedies defense under the Prison Litigation Reform Act ("PLRA") is unpersuasive.

6 First, Defendants have not produced any evidence that any potential class member was in custody at the

7 time of the filing of the Complaint. Moreover, as Gallagher points out, the PLRA is not applicable to

8 situations such as the instant proposed class action litigation. See, e.g., Jones 'El v. Berge, 172 F.

9 Supp.2d 1128, 1131-1134 (W.D. Wisc. 2001).

10 C. Rule 23(b)(3) Requirements

11

Finally, before the classes can be certified, Gallagher must also show that at least one of the three

12 requirements of Rule 23(b) is satisfied. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 614-15 (1997).

13 Here, Gallagher requests that the Court certify Class One and Class Two pursuant to Rule 23(b)(3)

14 because common questions predominate and class resolution is superior to other available methods for

15 the fair and efficient adjudication of the controversy.

16

The objective behind the two requirements of Rule 23(b)(3) is the promotion of economy and

17 efficiency in actions that primarily involve monetary damages. See Fed. R. Civ. P. 23(b)(3) (advisory

18 committee notes). When common issues predominate, true economy may be achieved through the class

19 action device, as time, effort and expense can be saved as compared to individual suits, and the

20 confusion over differing outcomes can be avoided. Id.

21

Here, the substantive issue common to the class is Defendants' alleged liability for the County's

22 strip search policy or practice, and the primary question to be resolved is whether Defendants' policy,

23 custom, and/or practice of implementing blanket strip searches on all female arrestees to be housed in

24 Defendants' correctional facilities violated certain federal constitutional rights and state statutory rights.

25 The facts common to all proposed plaintiffs include being arrested for an offense not involving drugs,

26 weapons, or a felony charge of violence or for a misdemeanor, being booked at the McGuire

27 Correctional Facility, being transferred to the San Mateo Women's Correctional Facility for housing,

28 and being subjected to a strip or body cavity search. This combination of facts and law collaboratively

13

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 14 of 16

United States District Court For the Northern District of California

1 operate to determine Defendants' liability for adopting, maintaining and implementing the blanket strip

2 search policies.

3

To resist certification under Federal Rule 12(3)(b), Defendants again raise the argument that the

4 Court would be required to consider particularized facts concerning each search on a case-by-case basis,

5 and that the Court would first need to determine whether a particular officer conducted the strip search

6 based on individualized reasonable suspicion. Defendants' argument, however, is undermined

7 considerably by the fact that Defendants' own witnesses have admitted that no such individualized

8 determinations were made. See Merin Decl. at Ex. G (Peters Depo. at 12:8-25, 12:19-24). Further,

9 Defendants' argument that class certification is not appropriate because the Court would need to analyze

10 "particularized facts concerning each search" has already been considered, and rejected, by other courts

11 as unpersuasive. See Tardiff, 365 F.3d at 13; Doe v. Calumet City, Ill., 754 F.Supp. 1211, 1221 n.23

12 (N.D. Ill. 1990).

13

While Defendants also argue that this Court should not certify this case as a class action because

14 the Court may have to "conduct a particularized assessment of damages for each putative class

15 member," class certification is not defeated merely because individualized damage issues may remain.

16 See Smilo v. South Western Bell Mobil Systems, 323 F.3d 32, 40 (1st Cir. 2003) ("Where . . . common

17 questions predominate regarding liability, then courts generally find the predominance requirement to

18 be satisfied even if individual damages issues remain."). Indeed, once liability issues have been

19 determined, there are various methods available in a class action lawsuit that the Court may effectively

20 use to resolve the various resulting damages issues.

21

In conclusion, it is clear to the Court that, in the instant case, a class action is far superior to

22 multiple individual lawsuits. The needless expenditure of additional time, effort and expense that would

23 be attendant to numerous individual suits is greatly reduced, and the potential for differing outcomes

24 is avoided as well. As such, Gallagher has satisfied the criteria of Rule 23(a) and 23(b)(3), and class

25 certification is appropriate.

26 ///

27 ///

28

CONCLUSION

14

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 15 of 16

United States District Court For the Northern District of California

1

IT IS HEREBY ORDERED THAT Gallagher's Motion for Class Certification [Docket No. 14]

2 is GRANTED. The certified classes are hereby defined as follows:

3

1. For the federal claim ("Class One"):

4

All women who, from February 3, 2002 to December 2, 2003, were arrested on any

5

charge (including felonies) not involving weapons, controlled substances, or violence,

6

and not involving a violation of parole or a violation of probation (where consent to

7

search is a condition of such probation), and who were subjected to a uniform and

8

indiscriminate (blanket) strip/visual body cavity search by defendants before arraignment

9

at the San Mateo County Jail without any individualized reasonable suspicions that they

10

were concealing contraband. This class also includes all female arrestees who were

11

subjected to subsequent blanket strip search before arraignment after the initial

12

strip/visual body cavity search without any reasonable individualized suspicion that they

13

had subsequently acquired and hidden contraband on their persons.

14

2. For the state law claim ("Class Two"):

15

All female arrestees who, from June 12, 2003 to December 2, 2003, were arrested on an

16

infraction or misdemeanor charge and brought to the San Mateo County Jail and who

17

were subjected to a uniform and indiscriminate (blanket) strip/visual body cavity search

18

before arraignment without written supervisorial authorization, as required under

19

California Penal Code § 4030(f).

20

IT IS FURTHER ORDERED THAT notice shall be given to the members of the classes by

21 publication in a newspaper of general circulation, twice weekly for two weeks within sixty (60) days

22 of the date of this Order, with costs of such notice to be paid by Plaintiff. Plaintiff shall file with the

23 Court her proposed notice of pendency of class action for the Court's approval within twenty (20) days

24 of the date of this Order.

25 IT IS FURTHER ORDERED THAT the November 29, 2005 Pretrial Conference and the

26 December 5, 2005 trial date are VACATED.

27 IT IS FURTHER ORDERED THAT the parties shall appear for a telephonic Case Management
28

15

Case 4:04-cv-00448-SBA Document 29 Filed 10/31/2005 Page 16 of 16

United States District Court For the Northern District of California

1 Conference on Wednesday, January 11, 2006 at 3:15 p.m. The parties shall meet and confer prior

2 to the conference and shall prepare a joint Case Management Conference Statement which shall be filed

3 no later than ten (10) days prior to the Case Management Conference. Plaintiff shall be responsible for

4 filing the statement as well as for arranging the conference call. All parties shall be on the line and shall

5 call (510) 637-3559 at the above indicated date and time.

6

IT IS SO ORDERED.

7

8 Dated: 10/28/05 9

SAUNDRA BROWN ARMSTRONG United States District Judge

10

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12

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14

15

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16

 
 • Query • Reportsv • Utilitiesv • Logout
ADRMOP, CLOSED, E-Filing, ProSe, REFSET-JL, SM
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:04-cv-00448-SBA

Gallagher v. County of San Mateo et al Assigned to: Hon. Saundra Brown Armstrong Demand: $4,000 Cause: 42:1983 Civil Rights Act

Date Filed: 02/03/2004 Date Terminated: 11/29/2007 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Special Master Raul Ramirez

represented by Raul Ramirez Ramirez Arbitration & Mediation 3600 American River Drive, #145 Sacramento, CA 95864 916-488-4050 Fax: 916-488-3269 PRO SE

Plaintiff
Shannon Gallagher and all others similarly situated

represented by Andrew Charles Schwartz Casper Meadows Schwartz & Cook California Plaza 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925-947-1147 Fax: 925-947-1131 Email: schwartz@cmslaw.com LEAD ATTORNEY

Plaintiff Roberta Bauccio

ATTORNEY TO BE NOTICED
Mark E. Merin, Esq. Law Office of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 916-443-6911 Fax: 916-447-8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micha Star Liberty Andrus Liberty & Anderson 1438 Market Stret San Francisco, CA 94102 415-896-1000 Fax: 415-896.2249 Email: micha@libertylawoffice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Andrew Seaton Casper Meadows Schwartz & Cook 2121 North California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 Fax: (925) 947-1131 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence J. Cassidy Porter Scott 350 University Avenue, Suite 200 Sacramento, CA 95865 916-929-1481 Fax: 916-927-3706 Email: tcassidy@porterscott.com ATTORNEY TO BE NOTICED
represented by Mark E. Merin, Esq.

and all others similarly situtated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence J. Cassidy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Grace Carland and all others similarly situated

represented by Mark E. Merin, Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence J. Cassidy (See above for address) ATTORNEY TO BE NOTICED

V. Defendant County of San Mateo

represented by Terence J. Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aimee B. Armsby San Mateo County Counsel 400 County Center 6th Floor Redwood City, CA 94063 (650) 363-4768 Fax: (650) 363-4034 Email: aarmsby@co.sanmateo.ca.us ATTORNEY TO BE NOTICED
Mark E. Merin, Esq. (See above for address) ATTORNEY TO BE NOTICED
Carol Lynne Woodward County Counsel, County of San

Defendant San Mateo County Sheriff's Department
Defendant Sheriff Don Horsley in his individual and official capacity

Mateo Hall of Justice and Records, 6th Floor 400 County Center Redwood City, CA 94063-1662 650-363-4746 Fax: 650-363-4034 Email: cwoodward@co.sanmateo.ca.us ATTORNEY TO BE NOTICED
represented by Terence J. Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aimee B. Armsby (See above for address) ATTORNEY TO BE NOTICED
Mark E. Merin, Esq. (See above for address) ATTORNEY TO BE NOTICED
Carol Lynne Woodward (See above for address) ATTORNEY TO BE NOTICED
represented by Terence J. Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aimee B. Armsby (See above for address) ATTORNEY TO BE NOTICED
Mark E. Merin, Esq. (See above for address) ATTORNEY TO BE NOTICED
Carol Lynne Woodward

Defendant San Mateo County Sheriff's Deputies
Miscellaneous Gilardi & Co., LLC

(See above for address) ATTORNEY TO BE NOTICED
represented by Terence J. Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin, Esq. (See above for address) ATTORNEY TO BE NOTICED
Carol Lynne Woodward (See above for address) ATTORNEY TO BE NOTICED
represented by Gilardi & Co., LLC Class Claims Administrator 3301 Kerner Blvd. San Rafael, CA 94901 415-461-0410 Fax: 415-461-0412 PRO SE

Date Filed 02/03/2004
02/03/2004 02/03/2004

# Docket Text
1 COMPLAINT with jury demand against County of San Mateo, Don Horsley, San Mateo County Sheriff's Department, San Mateo County Sheriff's Deputies (Filing fee $ 150., receipt no. 4409021). Filed by Shannon Gallagher. (jlm, COURT STAFF) (Filed on 2/3/2004) Additional attachment(s) added on 2/11/2004 (jlm, COURT STAFF). (Entered: 02/04/2004)
CASE DESIGNATED for Electronic Filing. (jlm, COURT STAFF) (Filed on 2/3/2004) (Entered: 02/04/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 5/26/2004. Case Management Conference set for 6/2/2004 03:00 PM. (Attachments: # 1 Standing Order SBA)(jlm, COURT STAFF) (Filed on 2/3/2004) (Entered: 02/04/2004)

02/03/2004 02/05/2004 02/06/2004 02/13/2004 02/25/2004 02/25/2004 05/12/2004 05/20/2004 05/21/2004 05/26/2004 06/01/2004 06/03/2004

Summons Issued as to County of San Mateo, Don Horsley, San Mateo County Sheriff's Department, San Mateo County Sheriff's Deputies. (jlm, COURT STAFF) (Filed on 2/3/2004) (Entered: 02/04/2004)
3 NOTICE of Related Cases: C-03-1840-CRB; C-03-4022-CRB; C-03-3105-CRB; C-03-4692-CRB (Schwartz, Andrew) (Filed on 2/5/2004) Modified on 2/24/2004 (jlm, COURT STAFF). (Entered: 02/05/2004)
4 CLERK'S NOTICE Case Management Conference set for 6/2/2004 03:15 PM.via telephone. (lrc, ) (Filed on 2/6/2004) (Entered: 02/06/2004)
5 ORDER case C04-0448 SBA is not related to C03-1840CRB. Signed by Judge Charles R. Breyer on 02/12/04. (be, COURT STAFF) (Filed on 2/13/2004) (Entered: 02/13/2004)
6 ANSWER to Complaint with Jury Demand by County of San Mateo, Don Horsley, San Mateo County Sheriff's Department, San Mateo County Sheriff's Deputies. (Woodward, Carol) (Filed on 2/25/2004) (Entered: 02/25/2004)
7 RESPONSE to re 3 Notice of Related Cases by County of San Mateo, Don Horsley, San Mateo County Sheriff's Department, San Mateo County Sheriff's Deputies. (Woodward, Carol) (Filed on 2/25/2004) (Entered: 02/25/2004)
8 NOTICE of need of ADR Phone Conference (ADR L.R. 3-5 d) ADR Certification (Schwartz, Andrew) (Filed on 5/12/2004) (Entered: 05/12/2004)
9 ADR Clerks Notice Setting ADR Phone Conference on 5/28/04 at 10:30 a.m. (tjs, COURT STAFF) (Filed on 5/20/2004) (Entered: 05/20/2004)
ADR Clerks Notice ADR Phone Conference rescheduled to 6/1/04 at 11:30 a.m. (tjs, COURT STAFF) (Filed on 5/21/2004) (Entered: 05/21/2004)
10 JOINT CASE MANAGEMENT STATEMENT With Proposed Order filed by Shannon Gallagher. (Schwartz, Andrew) (Filed on 5/26/2004) Modified on 5/27/2004 (jlm, COURT STAFF). (Entered: 05/26/2004)
ADR Phone Conference by HAH (tjs, COURT STAFF) (Filed on 6/1/2004) (Entered: 06/03/2004)
11 CLERK'S NOTICE Case Management Conference set for 7/14/2004 03:45 PM. via telephone. (lrc, ) (Filed on 6/3/2004)

07/20/2004 07/20/2004 07/23/2004 04/22/2005 04/22/2005
04/22/2005 05/17/2005

(Entered: 06/03/2004)
12 Minute Entry: Initial Case Management Conference held on 7/14/2004 before JUDGE ARMSTRONG (Date Filed: 7/20/2004). (Court Reporter NOT REPORTED.) (lrc, ) (Date Filed: 7/20/2004) (Entered: 07/20/2004)
13 CASE MANAGEMENT SCHEDULING ORDER: Discovery due by 9/15/2005. Jury Trial set for 12/5/2005 08:30 AM. Motions due by 11/1/2005. Pretrial Conference set for 11/29/2005 08:30 AM. SEE PRETRIAL PREPARATION ORDER FOR OTHER DATES AND DEADLINES. Signed by Judge ARMSTRONG on 7/20/04. (lrc, ) (Filed on 7/20/2004) (Entered: 07/20/2004)
CASE REFERRED to Magistrate Judge James Larson for Settlement (wh, COURT STAFF) (Filed on 7/23/2004) (Entered: 07/23/2004)
14 MOTION to Certify Class filed by Shannon Gallagher. Motion Hearing set for 6/7/2005 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Points and Authorities in Support of Motion to Certify Class# 2 Proposed Order Granting Motion to Certify Class# 3 Proposed Notice of Pendency of Class Action)(Merin, Mark) (Filed on 4/22/2005) (Entered: 04/22/2005)
15 Declaration of Mark E. Merin in Support of 14 MOTION to Certify Class filed byShannon Gallagher. (Attachments: # 1 Exhibit A to Merin Declaration# 2 Exhibit B to Merin Declaration# 3 Exhibit C to Merin Declaration# 4 Exhibit D to Merin Declaration# 5 Exhibit E to Merin Declaration# 6 Exhibit F to Merin Declaration# 7 Exhibit G to Merin Declaration# 8 Exhibit H to Merin Declaration# 9 Exhibit I to Merin Declaration)(Related document(s) 14 ) (Merin, Mark) (Filed on 4/22/2005) (Entered: 04/22/2005)
16 Declaration of Andrew C. Schwartz in Support of 14 MOTION to Certify Class filed byShannon Gallagher. (Related document(s) 14 ) (Merin, Mark) (Filed on 4/22/2005) (Entered: 04/22/2005)
17 Memorandum in Opposition re 14 MOTION to Certify Class filed byCounty of San Mateo, San Mateo County Sheriff's Department, Don Horsley. (Attachments: # 1 Declaration of Assistant Sheriff Trindle# 2 Declaration of Lieutenant Ray Lunny)(Woodward, Carol) (Filed on 5/17/2005) (Entered: 05/17/2005)

05/20/2005 05/20/2005 05/24/2005 05/27/2005 06/06/2005
06/06/2005 06/15/2005

18 MOTION for Leave to File Excess Pages UP TO A 20 PAGE REPLY BRIEF TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION; DECLARATION OF MARK E. MERIN; [PROPOSED] ORDER filed by Shannon Gallagher. Motion Hearing set for 6/7/2005 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Merin, Mark) (Filed on 5/20/2005) (Entered: 05/20/2005)
19 Declaration of Mark E. Merin 18 MOTION for Leave to File Excess Pages UP TO A 20 PAGE REPLY BRIEF TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION; [PROPOSED] ORDER filed by Shannon Gallagher. (Merin, Mark) (Filed on 5/20/2005) Modified on 5/24/2005 (jlm, COURT STAFF). (Entered: 05/20/2005)
20 Reply to Opposition re 14 MOTION to Certify Class filed byShannon Gallagher. (Attachments: # 1 Declaration of Mark E. Merin in Support of Plaintiff's Reply to Opposition# 2 Plaintiff's Objections to Defendants' Evidence in Declarations Attached to Defendants' Opposition to Plaintiff's Motion for Class Certification)(Merin, Mark) (Filed on 5/24/2005) (Entered: 05/24/2005)
21 MEMORANDUM AND OPINION, ORDER, signed by Judge SAUNDRA BROWN ARMSTRONG on 05/27/2005, granting 18 Plaintiff's Miscellaneous Administrative Request For Leave To File. (sbasec, COURT STAFF) (Filed on 5/27/2005) (Entered: 05/27/2005)
22 ORDER, signed by Judge SAUNDRA BROWN ARMSTRONG on 06/06/2005. Plaintiff's supplemental brief to be filed by 06/15/2005, addressing the issues as described in the aforementioned Order. Defendants' response to Plaintiff's supplemental brief to be filed by 06/24/2005. The hearing on Plaintiff's Motion is CONTINUED TO 07/12/2005 at 1:00 p.m. (sbasec, COURT STAFF) (Filed on 6/6/2005) (Entered: 06/06/2005)
Set/Reset Deadlines as to 14 MOTION to Certify Class. Motion Hearing set for 7/12/2005 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (jlm, COURT STAFF) (Filed on 6/6/2005) (Entered: 06/07/2005)
23 Brief re 14 MOTION to Certify Class [Supplemental] filed byShannon Gallagher. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Related document(s) 14 ) (Merin, Mark) (Filed on 6/15/2005) (Entered:

06/20/2005
06/24/2005
06/29/2005 09/21/2005 09/28/2005
09/28/2005 10/31/2005 10/31/2005 11/17/2005

06/15/2005)
24 STIPULATION -- Stipulated Request to Reset Hearing on Plaintiffs' Motion for Class Certification; [Proposed] Order by Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Merin, Mark) (Filed on 6/20/2005) (Entered: 06/20/2005)
25 Reply Memorandum re 14 MOTION to Certify Class Defendants' Memorandum of Points and Authorities in Response to Plaintiff's Supplemental Brief filed byCounty of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Attachments: # 1 Supplement Declaration of Carol L. Woodward)(Woodward, Carol) (Filed on 6/24/2005) (Entered: 06/24/2005)
26 ORDER: That the hearing on Plaintiff's Motion for Class Certification set for 07/12/05 is VACATED. Signed by Judge Saundra Brown Armstrong on 06/29/05. (jlm, COURT STAFF) (Filed on 6/29/2005) (Entered: 07/05/2005)
27 STIPULATION -Joint Request for Case Management/Status Conference to Reset Pretrial Deadlines and Trial Date by Shannon Gallagher. (Schwartz, Andrew) (Filed on 9/21/2005) (Entered: 09/21/2005)
28 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. Settlement Conference is set for 12/16/05 at 10:00 AM. Signed by Magistrate Judge James Larson on 9/28/05. (jlsec, COURT STAFF) (Filed on 9/28/2005) Modified on 9/29/2005 (jlm, COURT STAFF). (Entered: 09/28/2005)
Set Deadlines/Hearings: re 28 Settlement Conference set for 12/16/2005 at 10:00 AM. (jlm, COURT STAFF) (Filed on 9/28/2005) (Entered: 09/29/2005)
29 ORDER by Judge ARMSTRONG granting 14 Motion to Certify Class (lrc, COURT STAFF) (Filed on 10/31/2005) (Entered: 10/31/2005)
Set Deadlines/Hearings: re 29 Case Management Conference set for 1/11/2006 03:15 PM. (jlm, COURT STAFF) (Filed on 10/31/2005) (Entered: 11/01/2005)
30 NOTICE by Shannon Gallagher re 29 Order on Motion to Certify Class ; Plaintiff's Proposed Notice of Pendency of Class Action (Attachments: # 1 Notice of Pendency of Strip Search

12/05/2005 12/16/2005
12/16/2005 12/22/2005 12/23/2005
02/06/2006 02/09/2006 02/10/2006
02/10/2006 03/13/2006 03/15/2006 03/15/2006

Class Action)(Merin, Mark) (Filed on 11/17/2005) (Entered: 11/17/2005)
31 ORDER APPROVING 30 Notice (Other) filed by Shannon Gallagher,. Signed by Judge ARMSTRONG on 12/5/05. (lrc, COURT STAFF) (Filed on 12/5/2005) (Entered: 12/05/2005)
32 Minute Entry: The case did not settle. A further settlement conference has been scheduled for Thursday, February 2, 2006 @ 10:00 a.m. (Date Filed: 12/16/2005). (jlsec, COURT STAFF) (Date Filed: 12/16/2005) Modified on 12/19/2005 (jlm, COURT STAFF). (Entered: 12/16/2005)
Set Deadlines/Hearings: re 32 Settlement Conference set for 2/2/2006 at 10:00 AM. (jlm, COURT STAFF) (Filed on 12/16/2005) (Entered: 12/19/2005)
33 Letter from Andrew Schwartz. (Schwartz, Andrew) (Filed on 12/22/2005) (Entered: 12/22/2005)
34 CLERK'S NOTICE Case Management Conference set for 2/23/2006 02:30 PM. via telephone. (lrc, COURT STAFF) (Filed on 12/23/2005) Additional attachment(s) added on 12/23/2005 (lrc, COURT STAFF). (Entered: 12/23/2005)
35 Letter from Andrew Schwartz. (Schwartz, Andrew) (Filed on 2/6/2006) (Entered: 02/06/2006)
36 CLERK'S NOTICE Case Management Conference set for 4/20/2006 03:45 PM. via telephone. (lrc, COURT STAFF) (Filed on 2/9/2006) (Entered: 02/09/2006)
37 ORDER CONTINUING FURTHER SETTLEMENT CONFERENCE. Signed by Judge James Larson on 2/10/06. (jlsec, COURT STAFF) (Filed on 2/10/2006) (Entered: 02/10/2006)
Set Deadlines/Hearings: re 37 Settlement Conference set for 3/15/2006 02:00 PM. (jlm, COURT STAFF) (Filed on 2/10/2006) (Entered: 02/13/2006)
38 Letter from Mark E. Merin to Honorable James Larson, Chief Magistrate Judge, re: Mediation. (Merin, Mark) (Filed on 3/13/2006) (Entered: 03/13/2006)
39 Letter from Carol L. Woodward Request for a Continuance re Settlement Conference. (Woodward, Carol) (Filed on 3/15/2006) (Entered: 03/15/2006)
40 FURTHER ORDER CONTINUING SETTLEMENT

03/15/2006 04/05/2006 04/06/2006 04/20/2006 04/20/2006 04/20/2006 04/24/2006 04/27/2006
07/18/2006

CONFERENCE. Signed by Judge James Larson on 3/15/06. (jlsec, COURT STAFF) (Filed on 3/15/2006) (Entered: 03/15/2006)
Set Deadlines/Hearings: re 40 Settlement Conference set for 4/5/2006 at 02:00 PM. (jlm, COURT STAFF) (Filed on 3/15/2006) (Entered: 03/16/2006)
41 Minute Entry: A Further Settlement Conference was held 04/05/2006. (Date Filed: 4/5/2006). Case did not settle (C/R: Not Reported) (jlsec, COURT STAFF) (Date Filed: 4/6/2006) Modified on 4/7/2006 (jlm, COURT STAFF). Modified on 4/7/2006 (jlm, COURT STAFF). (Entered: 04/06/2006)
42 JOINT CASE MANAGEMENT STATEMENT With Proposed Order filed by County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Woodward, Carol) (Filed on 4/6/2006) Modified on 4/7/2006 (jlm, COURT STAFF). (Entered: 04/06/2006)
43 Minute Entry: Further Case Management Conference held on 4/20/2006 before JUDGE ARMSTRONG (Date Filed: 4/20/2006). (C/R: Not Reported) (lrc, COURT STAFF) (Date Filed: 4/20/2006) Modified on 4/25/2006 (jlm, COURT STAFF). (Entered: 04/24/2006)
45 AMENDED Minute Entry: Further Case Management Conference (Date Filed: 4/20/2006). (C/R: Not Reported) (lrc, COURT STAFF) (Date Filed: 4/20/2006) Modified on 4/25/2006 (jlm, COURT STAFF). (Entered: 04/24/2006)
CASE REFERRED to Magistrate Judge for Settlement (jlm, COURT STAFF) (Filed on 4/20/2006) (Entered: 04/25/2006)
44 CASE MANAGEMENT SCHEDULING ORDER: Discovery due by 10/20/2006. Jury Trial set for 2/26/2007 08:30 AM. Motions due by 1/9/2007. Pretrial Conference set for 2/20/2007 01:00 PM.. Signed by Judge ARMSTRONG on 4/24/06. (lrc, COURT STAFF) (Filed on 4/24/2006) (Entered: 04/24/2006)
46 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. A Settlement Conference is set for 1/25/2007, at 9:30 a.m. Settlement Conference Statements shall be LODGED with Chambers (NOT electronically filed) no later than 1/11/2007. Signed by Magistrate Judge Joseph C. Spero on 4/27/2006. (jcssec, COURT STAFF) (Filed on 4/27/2006) (Entered: 04/27/2006)
47 STIPULATION and Proposed Order to File First Amended

07/18/2006 07/31/2006 08/09/2006 11/15/2006 12/19/2006
01/04/2007
01/23/2007 02/05/2007

Complaint by Shannon Gallagher. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Schwartz, Andrew) (Filed on 7/18/2006) Modified on 7/19/2006 (jlm, COURT STAFF). (Entered: 07/18/2006)
48 AMENDED COMPLAINT With Jury Demand against all defendants. Filed byShannon Gallagher. (Attachments: # 1 Exhibit)(Schwartz, Andrew) (Filed on 7/18/2006) Modified on 8/10/2006 (jlm, COURT STAFF). (Entered: 07/18/2006)
49 Answer to Amended Complaint 48 Amended Complaint byCounty of San Mateo, San Mateo County Sheriff's Department, Don Horsley. (Armsby, Aimee) (Filed on 7/31/2006) (Entered: 07/31/2006)
50 STIPULATION AND ORDER. Signed by Judge ARMSTRONG on 8/9/06. (lrc, COURT STAFF) (Filed on 8/9/2006) (Entered: 08/09/2006)
51 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)
52 CLERK'S NOTICE ADVANCING SETTLEMENT CONFERENCE from 1/25/2007 to 1/18/2007, at 9:30 a.m. Settlement Conference Statements are to be LODGED with Chambers (NOT electronically filed) no later than 1/4/2007. The parties shall immediately notify Chambers at (415) 5223691 if this case settles prior to the date set for the Settlement Conference. (jcssec, COURT STAFF) (Filed on 12/19/2006) (Entered: 12/19/2006)
53 Joint NOTICE of Settlement (Non-Confidential) by Roberta Bauccio, Grace Carland, Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies (Merin, Mark) (Filed on 1/4/2007) Modified on 1/5/2007 (jlm, COURT STAFF). (Entered: 01/04/2007)
54 ASSOCIATION of Counsel by County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Cassidy, Terence) (Filed on 1/23/2007) (Entered: 01/23/2007)
55 MOTION for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action, filed by Roberta Bauccio, Grace Carland, Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. Motion Hearing set for 4/3/2007

02/05/2007
02/15/2007 04/03/2007 04/03/2007 10/10/2007
10/10/2007 10/10/2007

01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 2/5/2007) Modified on 2/6/2007 (jlm, COURT STAFF). (Entered: 02/05/2007)
56 Brief re 55 MOTION for Settlement Notice of Stipulated Motion and Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action filed byRoberta Bauccio, Grace Carland, Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 55 ) (Merin, Mark) (Filed on 2/5/2007) (Entered: 02/05/2007)
57 ORDER Cancelling Deadline. Signed by Judge ARMSTRONG on 2/14/07. (lrc, COURT STAFF) (Filed on 2/15/2007) (Entered: 02/15/2007)
58 ORDER by Judge ARMSTRONG granting 55 Motion for Settlement (lrc, COURT STAFF) (Filed on 4/3/2007) (Entered: 04/03/2007)
Set Deadlines/Hearings: Final Approval, the "Fairness Hearing" set for 11/6/2007 at 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (jlm, COURT STAFF) (Filed on 4/3/2007) (Entered: 04/04/2007)
59 MOTION for Attorney Fees : Class Counsels' Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed by Roberta Bauccio, Grace Carland, Shannon Gallagher. Motion Hearing set for 11/6/2007 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Merin, Mark) (Filed on 10/10/2007) (Entered: 10/10/2007)
60 Declaration of Andrew C. Schwartz in Support of 59 MOTION for Attorney Fees : Class Counsels' Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byRoberta Bauccio, Grace Carland, Shannon Gallagher. (Attachments: # 1 Exhibit A)(Related document(s) 59 ) (Merin, Mark) (Filed on 10/10/2007) (Entered: 10/10/2007)
61 Declaration of Mark E. Merin in Support of 59 MOTION for Attorney Fees : Class Counsels' Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byRoberta Bauccio, Grace Carland, Shannon Gallagher. (Attachments: # 1 Exhibit A, B & C)(Related document(s) 59 ) (Merin, Mark) (Filed on 10/10/2007) (Entered: 10/10/2007)

10/19/2007 10/19/2007 10/19/2007 10/19/2007 10/29/2007 11/06/2007 11/07/2007 11/27/2007

62 Joint MOTION for Settlement : The Parties Joint Submission in Support of Final Approval of Stipulated Settlement filed by Roberta Bauccio, Grace Carland, Shannon Gallagher. Motion Hearing set for 11/6/2007 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Exhibit 1)(Merin, Mark) (Filed on 10/19/2007) (Entered: 10/19/2007)
63 Declaration of Ryanne Fitzgerald in Support of 62 Joint MOTION for Settlement : The Parties Joint Submission in Support of Final Approval of Stipulated Settlement filed byRoberta Bauccio, Grace Carland, Shannon Gallagher. (Attachments: # 1 Exhibit A)(Related document(s) 62 ) (Merin, Mark) (Filed on 10/19/2007) (Entered: 10/19/2007)
64 ERRATA re 62 Joint MOTION for Settlement : The Parties Joint Submission in Support of Final Approval of Stipulated Settlement [Correction to Judge's Name] by Roberta Bauccio, Grace Carland, Shannon Gallagher. (Attachments: # 1 Exhibit 1)(Merin, Mark) (Filed on 10/19/2007) (Entered: 10/19/2007)
65 ERRATA re 59 MOTION for Attorney Fees : Class Counsels' Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs [Correction to Judge's Name] by Roberta Bauccio, Grace Carland, Shannon Gallagher. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Merin, Mark) (Filed on 10/19/2007) (Entered: 10/19/2007)
66 Proposed Order and Judgment of Dismissal by Roberta Bauccio, Grace Carland, Shannon Gallagher. (Merin, Mark) (Filed on 10/29/2007) (Entered: 10/29/2007)
68 Minute Entry: Motion Hearing held on 11/6/2007 before JUDGE ARMSTRONG (Date Filed: 11/6/2007). (Court Reporter STARR WILSON.) (lrc, COURT STAFF) (Date Filed: 11/6/2007) (Entered: 11/07/2007)
67 TRANSCRIPT of Proceedings held on 11/06/07 before Judge Saundra Brown Armstrong. Court Reporter: Starr A. Wilson. (jlm, COURT STAFF) (Filed on 11/7/2007) (Entered: 11/07/2007)
69 Proposed Order and Judgment of Dismissal, by Roberta Bauccio, Grace Carland, Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies. (Cassidy, Terence) (Filed on 11/27/2007) Modified on 11/28/2007 (jlm, COURT STAFF). (Entered: 11/27/2007)

11/28/2007 11/29/2007

70 ***DUPLICATE ENTRY, SAME AS DOCUMENT 69 ***
Proposed Order and Judgment of Dismissal, by Roberta Bauccio, Grace Carland, Shannon Gallagher, County of San Mateo, San Mateo County Sheriff's Department, Don Horsley, San Mateo County Sheriff's Deputies (Cassidy, Terence) (Filed on 11/28/2007) Modified on 11/29/2007 (jlm, COURT STAFF). Modified on 11/29/2007 (jlm, COURT STAFF). (Entered: 11/28/2007)
71 ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 11/29/07. (lrc, COURT STAFF) (Filed on 11/29/2007) (Entered: 11/29/2007)

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Description: Docket Report Search Criteria: 4:04-cv-00448-SBA

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