Case 1:07-cv-00474-DLB Document 92 Filed 04/01/2009 Page 1 of 9

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 MARSIAL LOPEZ, et al.,

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Plaintiffs,

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v.

14 DONNY YOUNGBLOOD, et al.,
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Defendants.

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) 1:07cv474 DLB

)

) ORDER GRANTING PLAINTIFFS’

) MOTION FOR CLASS CERTIFICATION

) (Document 33)

)

) ORDER DENYING AS MOOT PLAINTIFFS’

) MOTION TO STRIKE

) (Document 47)

)

) ORDER SETTING STATUS CONFERENCE

)

May 4, 2009

)

9:00 a.m.

)

Courtroom 9

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On June 17, 2008, Plaintiffs Marsial Lopez, Sandra Chavez and Theodore Medina

19 (“Plaintiffs”) filed the present motion for class certification. Plaintiffs also filed a motion to

20 strike on July 28, 2008. Both motions were heard on December 19, 2008, before the Honorable

21 Dennis L. Beck, United States Magistrate Judge. Barrett Litt and Donald Cook appeared on

22 behalf of Plaintiffs. Jennifer Thurston and Terence Cassidy appeared on behalf of Defendants

23 Kern County, the Kern County Sheriff’s Office, Sheriff Donny Youngblood (individually and in

24 his official capacity) and Former Sheriff Mack Wimbish (individually) (“Defendants”).

25

BACKGROUND

26

Plaintiff Marsial Lopez, individually and as class representative, filed the instant civil

27 rights action on March 27, 2007. On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez

28 and Theodore Medina, individually and as class representatives, filed a First Amended

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1 Complaint (“FAC”) against Kern County, the Kern County Sheriff’s Office, Sheriff Donny

2 Youngblood (individually and in his official capacity) and Former Sheriff Mack Wimbish

3 (individually). The action concerns the manner in which prisoners are searched in Kern County’s

4 jails and alleges violations of the Fourth, Eighth and Fourteenth Amendments, as well as

5 violations of the California Constitution.

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On June 17, 2008, Plaintiffs filed a motion for class certification, seeking certification of

7 two classes- the Post-Release Class and the Group Strip Search Class. Defendants opposed the

8 motion on July 17, 2008. Plaintiffs filed their reply on July 28, 2008, along with a motion to

9 strike the declaration of Ian Silva in support of Defendants’ opposition. Defendants’ opposed the

10 motion to strike on October 3, 2008.

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FACTUAL BACKGROUND

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The FAC sets forth the claims of the class representatives as follows:

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1. Plaintiff Marsial Lopez: After surrendering himself to out-of-state officers, Lopez

was incarcerated in Kern County Jails from June 2005 through November 2006.

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When he was transferred between jail facilities and when he was returned to jail

from court, he was subjected to intrusive strip/visual body cavity (“vbc”) searches,

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in the presence of others not necessary for the searches, without privacy and in

unsanitary conditions. On November 6, 2006, he was taken to court and all

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charges against him were dismissed based on DNA evidence. He was ordered

released, though when he returned to jail for the sole purpose of processing his

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release, he was subject to an illegal an intrusive strip/vbc search, in unsanitary

conditions, without privacy and without reasonable suspicion that he possessed

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contraband or weapons.

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2. Plaintiff Sandra Chavez: On February 17, 2007, Chavez was arrested and upon

her arrival at the jail, Kern County Sheriff’s Department (“KCSD”) personnel

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subjected her to an intrusive strip/vbc search. She was searched in a room with

four or five other women and male officer within view. At the time of the search,

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KCSD had no probable cause or reasonable suspicion that Chavez or the other

prisoners were in possession of contraband. She was eventually released from

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custody and given a fine and probation.

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3. Plaintiff Theodore Medina: On June 7, 2006, Medina was arrested by KCSD

personnel and transported to jail. Upon arrival, he was subjected to an intrusive

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strip and vbc search in a room with four or five other arrestees. At the time of the

search, KCSD had no probable cause or reasonable suspicion that Medina or the

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other arrestees were in possession of contraband.

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Within two years from the filing of the FAC, Medina was also arrested on

a charge of spousal abuse. While being booked, KCSD personnel subjected him

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to an intrusive strip and visual body cavity search (“vbc”), in the presence of

others not involved in the search and in unsanitary conditions. He was eventually

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ordered released, and as a routine part of out-processing, he was subjected to an

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intrusive strip search, in the presence of others not involved and in unsanitary

conditions, in the absence of probable cause.

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Plaintiffs allege that the searches were conducted pursuant to Defendants’ policy and

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practice to indiscriminately search all, or a large number of, persons being processed into jail

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without regard to the nature of their offense, whether they are under an order of release, whether

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there was probable cause, etc. They further allege that Defendants have a policy of not limiting

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the persons who can see, hear or observe the searches, meaning that other inmates, members of

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the opposite sex, disposable jail personnel and others are able to see the searches and the class

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members’ naked bodies.

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Based on these allegations, Plaintiffs allege (1) violation of 42 U.S.C. § 1983 (Fourth

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Amendment protection against unreasonable search and seizures); (2) violation of Equal

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Protection; (3) violation of California Constitution, Article I, sections 7 and 13; (4) violation of

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California Civil Code section 52.1(b) (civil action for protection of rights); (5) violation of

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statutory duties, Penal Code section 4030 (policies and practices for strip and body cavity

14 searches)1; and (6) violation of mandatory duties to protect against specific injuries under

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California Government Code section 815.6.

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Plaintiffs seek injunctive relief, as well as general, special, statutory and punitive

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damages.

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DISCUSSION

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I. MOTION FOR CLASS CERTIFICATION

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Plaintiffs seek to certify the following classes:

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Post-Release Class (Medina and Lopez): persons who, from March 27, 2005, up to

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October 1, 2007,2 or the time of judgment or settlement of the case: (a) were in KCSD

custody; (b) were taken from jail to court; (c) became entitled to release after going to

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court; and (d) were strip and/or vbc searched before release pursuant to KCSD’s blanket

policy, practice and/or custom to strip/vbc search all court returns, including those

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entitled to release.

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1 Although section 4030 specifically states that it is applicable only to “prearraignment detainees arrested

for infraction or misdemeanor offenses,” Plaintiffs believe that the section applies to felony arrestees, as well.
27 Defendants dispute this point.

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2 Plaintiffs contend that the policies at issue were in effect until October 2007.

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Group Strip Search Class (Lopez, Chavez and Sanchez): persons who, from March 27,

2005, up to October 1, 2007, or the time of judgment or settlement of the case: (a) were in

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KCSD custody; (b) were subjected to a strip and/or vbc search in a group with other

inmates also being strip/vbc searched, which search did not afford privacy from others;

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and (c) whose strip searches were conducted pursuant to KCSD’s blanket policy, practice

and/or custom to regularly conduct strip/vbc searches in a group setting.

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To qualify for class certification, Plaintiffs must satisfy all of the requirements of Rule

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23(a) of the Rules of Civil Procedure and any one of the requirements of Rule 23(b). Rule 23(a)

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requires (1) impracticability of joinder due to numerosity; (2) commonality of questions of law or

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fact; (3) typicality of claims; and (4) adequacy of representation.

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The burden is on the party seeking to maintain the class action. In this case, Plaintiff

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must establish a prima facie showing of each of the elements of Rule 23(a) prerequisites and the

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appropriate 23(b) ground for a class action. Taylor v. Safeway Stores, Inc., 524 F.2d 263, 270

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(10th Cir. 1975), overruled on other grounds by Ruckelshaus v. Sierra Club, 463 U.S. 680

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(1983). The burden, however, is slight. Plaintiff need only present sufficient proof to allow the

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court to come to a “reasonable judgment” on each requirement. Blackie v. Barrack, 524 F.2d

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891, 901 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976).

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A. 23(a) Requirements

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1. Numerosity

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The class must be so numerous that joinder of all members individually is

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“impracticable.” Fed.R.Civ.P. 23(a)(1). No specific numerical threshold is required; each case

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must be examined. General Tel.C. v. E.E.O.C., 446 U.S. 318, 330, 100 S.Ct. 1698 (1980).

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Generally, 40 or more members will satisfy the numerosity requirement. Consolidated Rail

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Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2nd Cir. 1995).

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To establish numerosity, Plaintiffs point to the sheer number of individuals who are

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processed, transported and returned under the authority of the KCSD. For example, there is an

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average daily population of 2,500 inmates, and 40,000 new arrests are received a year. Assuming

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that the practice ceased as of October 2007, and given the class period of 30 months, Plaintiffs

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calculate that approximately 100,000 individuals were processed. Sgt. Gonzales, the

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classification supervisor, calculated that in 2006 alone, 51,882 inmates were transported to and

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1 from court and 44,797 inmates were released by the jails. Declaration of Barrett S. Litt (“Litt

2 Dec.”), Ex. 9. Plaintiffs have not yet identified a precise number because they have not received

3 Sgt. Gonzales’ computer database.

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Defendants do not dispute numerosity. In any event, the numbers provided by Plaintiffs

5 satisfy the numerosity requirement.

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2. Commonality

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There must be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). A

8 “common nucleus of operative facts” is usually enough to satisfy the commonality requirement.

9 Rosario v. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir. 1992).

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Plaintiffs contend, and the Court agrees, that class certification in this action would not

11 turn on the individual circumstances of each search. Rather, common issues exist where there is

12 a blanket policy of (1) conducting strip/vbc searches of those returning from court and entitled to

13 release; and (2) conducting strip/vbc searches in groups where inmates could view each other.

14 These blanket policies obviate the need to conduct individualized liability determinations.

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Defendants take issue with the class definitions, arguing that individuals who were not

16 searched would be allowed into the class. However, each definition clearly states that the class

17 includes, among other things, individuals who “were strip and/or vbc searched before release”

18 and those who “were subjected to a strip and/or vbc search in a group with other inmates also

19 being strip/vbc searched, which search did not afford privacy from others.” A basic requirement

20 of each class is the necessity of the individual to have been actually searched. The Court

21 therefore finds no problem with the definitions.

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3. Typicality

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Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be]

24 typical of the claims or defenses of the class.” In General Tele. Co. of the Southwest v. Falcon,

25 457 U.S. 147, 102 S.Ct. 2364 (1982), the Court noted “[t]he commonality and typicality

26 requirements of Rule 23(a) tend to merge.” 457 U.S. at 157 n. 13, 102 S.Ct. 2364. A named

27 plaintiffs’ claim is “typical” under Rule 23 if it arises “from the same event or practice or course

28 of conduct that gives rise to the claims of the other class members and his or her claims are based

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1 on the same legal theory.” Ballard v. Equifax Check Services, 186 F.R.D. 589, 595 (E.D.Cal.

2 1999).

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The typicality requirement is satisfied for the same reasons Plaintiffs have demonstrated

4 commonality. The Plaintiffs’ allegations arise from the same practice or course of conduct of

5 Defendants, and certainly, their claims are based on the same legal theory.

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4. Adequacy of Representation

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The person representing the class must be able “fairly and adequately to protect the

8 interests” of all members in the class. Fed.R.Civ.P. 23(a)(4). The representation is “adequate” if

9 the attorney representing the class is qualified and competent and the class representatives are not

10 disqualified by interests antagonistic to the remainder of the class. Lerwill v. Inflight Motion

11 Pictures, Inc., 582 F.2d 597, 512 (9th Cir. 1978).

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Although Defendants suggest that Plaintiffs do not fall into the categories they propose to

13 represent, the interests of the class members are aligned because they were all subject to the same

14 blanket policy.

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As to Class Counsel, there does not appear to be any dispute as to the qualifications of

16 either Mr. Litt or Mr. Ester.

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B. 23(b) Requirements

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Although Plaintiffs seek certification under all three sections of Rule 23(b), they do not

19 address 23(b)(2). As discussed below, the Court finds the class suitable for certification under

20 23(b)(3) and will therefore not analyze 23(b)(1).

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Rule 23(b)(3) provides for certification when:

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(3) the court finds that the questions of law or fact common to the members of the class

predominate over any questions affecting only individual members, and that a class action

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is superior to other available methods for the fair and efficient adjudication of the

controversy. The matters pertinent to the findings include: (A) the interest of members of

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the class in individually controlling the prosecution or defense of separate actions; (B) the

extent and nature of any litigation concerning the controversy already commenced by or

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against members of the class; (C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; (D) the difficulties likely to be

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encountered in the management of a class action.

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The satisfaction of the typicality requirement of Rule 23(a) goes a long way towards

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1 satisfying the Rule 23(b)(3) requirement of commonality. Gen. Tel. Co. of the Southwest v.

2 Falcon, 457 U.S. 147, 157 n. 13 (1982).

3

It appears that only commonality/predominance and management are at issue. As to

4 commonality, the Court again finds because this action involves a challenge to Defendants’

5 blanket strip/vbc search policy, the question of law and fact common to the class members

6 predominate over any questions affecting only individual members. Plaintiffs identify two key

7 questions common to all members: (1) whether the County has a particular strip search policy;

8 and (2) whether the policy violates the constitution. In other words, proof of liability will not

9 vary among members of the class.

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Insofar as Defendants rely on the “vastly different” experience of each Plaintiff to defeat

11 predominance, they unpersuasively attempt to turn the Court’s attention away from the actual

12 issue- the constitutionality of the blanket strip/vbc search policy. In fact, a majority of

13 Defendants’ opposition and supporting declarations focus mainly on factual issues in an attempt

14 to justify their policy. Such inquiries are not relevant at the class certification stage. In any

15 event, the individualized experiences Defendants point to, such as whether Plaintiffs were

16 consistently subject to searches and the circumstances under which each Plaintiff was transported

17 to and from court, have little relevance to the constitutionality of the blanket policy.

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Defendants’ reliance on Klein v. DuPage County, 119 F.R.D. 29, 31 (N.D.Ill. 1988), is

19 also misplaced. Klein involved a group of inmates who alleged that routine strip and cavity

20 searches before and after court appearances and visitation violated the Fourth Amendment.

21 There, the court denied class certification, explaining:

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Here, where there are special institutional security concerns and where each plaintiff may

have been arrested for different reasons, may have had full or no contact with those

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outside the prison, may pose little or great threats to prison safety, and may have been

searched in a variety of ways at numerous different times, it is questionable that there is a

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narrow issue suitable for one constitutional determination in the context of a class action.

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The court also explained that whether the searches were reasonable or unconstitutional “is

26 a fact-specific inquiry that depends upon the way each plaintiff was searched and the security

27 risks presented by each plaintiff.” Klein, 119 F.R.D at 30. Here, however, such issues are not

28 relevant. There is no dispute that the Kern County Jail has “special institutional security

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1 concerns,” nor is there any issue as to why each Plaintiff was arrested. Moreover, while the

2 prisoners in Klein may have been searched “in a variety of ways at numerous different times,”

3 the variability of Plaintiffs’ searches is not relevant to the central issue- whether the blanket

4 policy, to which all Plaintiffs were subject, was constitutional. In fact, Klein noted that

5 certification may be proper in cases involving the “narrow question” of whether a “blanket

6 policy” was constitutional. Klein, 119 F.RD. at 30. Put simply, Klein denied class certification 7 for reasons that are either not disputed here, or are not relevant to the ultimate issue.3 See also

8 Blihovde v. St. Croix County, 219 F.R.D 607, 621 (W.D. Wis. 2003) (distinguishing Klein

9 because plaintiffs did not allege that they were searched in accordance with a uniform policy).

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While the Court finds that commonality exists, it recognizes Defendants’ concern over

11 individualized damages. Individual damage issues do not defeat a finding that common

12 questions of law or fact predominate, though it may warrant a method for handling damages.

13 Based on Plaintiffs’ representations in their briefing and discussions at oral argument, the Court

14 is satisfied that any individualized damage issues can be properly managed. The Court can re-

15 visit this issue if and when it becomes necessary.

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Accordingly, based on the above analysis, the Court GRANTS Plaintiffs’ motion for class

17 certification and CERTIFIES the following classes under Rule 23(b)(3):

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Post-Release Class: Persons who, from March 27, 2005, up to October 1, 2007,4 or the

time of judgment or settlement of the case: (a) were in KCSD custody; (b) were taken

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from jail to court; (c) became entitled to release after going to court; and (d) were strip

and/or vbc searched before release pursuant to KCSD’s blanket policy, practice and/or

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custom to strip/vbc search all court returns, including those entitled to release.

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Group Strip Search Class: Persons who, from March 27, 2005, up to October 1, 2007, or

the time of judgment or settlement of the case: (a) were in KCSD custody; (b) were

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subjected to a strip and/or vbc search in a group with other inmates also being strip/vbc

searched, which search did not afford privacy from others; and (c) whose strip searches

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were conducted pursuant to KCSD’s blanket policy, practice and/or custom to regularly

conduct strip/vbc searches in a group setting.

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3 The Court also notes that later courts refused to follow the reasoning of Klein. See eg. Gary v. Sheahan,

1999 WL 281347, *3 (N.D. Ill. 1999).

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4 Plaintiffs contend that the policies at issue were in effect until October 2007.

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1 II. MOTION TO STRIKE

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In conjunction with their reply, Plaintiffs moved to strike all but four paragraphs of Ian

3 Silva’s Declaration, filed in support of Defendants’ opposition. As Mr. Silva’s Declaration did

4 not factor into this Court’s analysis, Plaintiff’s motion is DENIED AS MOOT.

5 III. STATUS CONFERENCE

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The parties SHALL appear at a status conference on May 4, 2009, at 9:00 a.m., in

7 Courtroom 9.

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IT IS SO ORDERED.

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Dated: April 1, 2009

3b142a

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/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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 Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 1 of 32

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 MARSIAL LOPEZ, et al.,

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Plaintiffs,

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v.

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16 DONNY YOUNGBLOOD, et al.,
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18 Defendants.
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) 1:07cv0474 DLB ) ) ORDER RE: PLAINTIFFS’ ) MOTION FOR PARTIAL SUMMARY ) JUDGMENT AND/OR SUMMARY ) ADJUDICATION ) (Document 67) ) ) ORDER RE: DEFENDANTS’ JOINT MOTION ) FOR SUMMARY ADJUDICATION ) (Document 36) ) ) ORDER RE: DEFENDANTS’ JOINT MOTION ) FOR SUMMARY ADJUDICATION ) REGARDING COURT RETURNEES, ) QUALIFIED IMMUNITY AND ELEVENTH ) AMENDMENT IMMUNITY ) (Document 63) )

20 On July 17, 2008, Defendants County of Kern, the Kern County Sheriff’s Office
21 (“KCSO”), Donny Younglood and Mack Wimbish (“Defendants”) filed a joint motion for
22 summary adjudication. On November 7, 2008, Defendants filed a second joint motion for
23 summary adjudication regarding court returnees, qualified immunity and Eleventh Amendment
24 immunity. On November 7, 2008, Plaintiffs Marsial Lopez, Sandra Chavez, and Theodore
25 Medina filed their cross-motion for partial summary judgment and/or summary adjudication. All
26 three motions were heard on December 19, 2008, before the Honorable Dennis L. Beck, United
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1 States Magistrate Judge.1 Barrett Litt and Donald Cook appeared on behalf of Plaintiffs.

2 Jennifer Thurston and Terence Cassidy appeared on behalf of Defendants.

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BACKGROUND

4

Plaintiff Marsial Lopez, individually and as class representative, filed the instant civil

5 rights action on March 27, 2007. On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez,

6 and Theodore Medina, individually and as class representatives, filed a First Amended

7 Complaint (“FAC”) against Defendants. Plaintiffs seek injunctive relief and damages resulting

8 from the strip and/or visual body cavity searches of prisoners by the Kern County Sheriff’s

9 Department.

10

The FAC pursues causes of action for violation of the Fourth, Eighth and Fourteenth

11 Amendments to the U.S. Constitution, violation of Article I, §§ 1, 7, 13 and 17 of the California

12 Constitution and state law violations. Plaintiffs allege that Defendants maintained a policy of

13 indiscriminately strip/body cavity searching all or a large number of persons being processed into

14 the jail without limitation on the number of persons who can see, hear or observe the searches.

15 Plaintiffs also allege that Defendants improperly strip searched detainees who had been ordered

16 released.

17

On July 17, 2008, Defendants filed a joint motion for summary adjudication regarding

18 group strip searches. Defendants contend that the group strip searches at issue do not violate the

19 Fourth and Fourteenth Amendments. In addition, Defendants argue that Plaintiffs’ equal

20 protection claim state law claims fail as a matter of law.

21

Pursuant to a briefing schedule, Plaintiffs filed an opposition to the motion on September

22 16, 2008, along with a statement of disputed and undisputed facts and objections to the

23 declaration of Ian Silva. On October 3, 2008, Defendants filed a reply and objections to the

24 Declaration of Paul J. Estuar filed in support of Plaintiffs’ motion.

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On November 7, 2008, Defendants filed their second joint motion for summary

26 adjudication regarding court returnees, qualified immunity and Eleventh Amendment immunity.

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1Plaintiffs’ motion to certify the class, Plaintiffs’ motion to strike and Plaintiffs’ motion to amend the FAC
28 also are pending before the Court.

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1 Defendants contend that (1) the searches of certain Plaintiffs who assert that their constitutional

2 rights were violated when they were subjected to strip searches after returning to the jail

3 following a court appearance in which they were ordered released were reasonable; (2)

4 Defendants Yougblood and Wimbish are immune from liability because the law was not clearly

5 established that searching post-arraignment detainees in small groups violates Plaintiffs’ rights

6 under the Fourth and Fourteenth Amendments and violates the Equal Protection Clause; (3) the

7 Sheriff is a state actor and immune from a § 1983 suit; and (4) the County should be dismissed

8 from this action.

9

Plaintiffs filed an opposition to Defendants’ second motion on November 21, 2008, along

10 with a statement of disputed and undisputed facts and the Declaration of Barrett S. Litt and

11 Donald W. Cook. Defendants filed a reply and objections to Plaintiffs’ statement of facts on

12 December 5, 2008.

13

On November 7, 2008, Plaintiffs also filed their cross-motion for partial summary

14 judgment and/or summary adjudication. Plaintiffs seek a determination that (1) KCSO’s policy

15 of strip searching persons ordered released from custody violated the Fourth Amendment; (2)

16 KCSO’s policy of group strip searching prisoners violated the Fourth Amendment; (3) the strip

17 search policies violated Plaintiffs’ state constitutional rights pursuant to Cal. Const. Art. I, § 1

18 (privacy), Cal. Const. Art. I, § 13 (unreasonable searches) and Cal. Const. Art. I, § 7 (equal

19 protection); and (4) the entity defendants are liable under federal and state law.

20

Defendants filed an opposition to Plaintiffs’ cross-motion for summary adjudication on

21 November 21, 2008, along with a statement of undisputed facts and objections to the declaration

22 of Donald W. Cook. Plaintiffs filed a reply on December 6, 2008.

23

FACTUAL BACKGROUND

24

A. Jail Facilities

25

Defendant KCSO operates four different jail facilities. These facilities include Central

26 Receiving Facility (“CRF”), Ridgecrest, Mojave, and Lerdo. The main function of the CRF

27 facility is booking and receiving arrestees coming straight off the street. Since at least 2003, pre-

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1 arraignment misdemeanor arrestees at CRF were not subject to strip searches on a routine basis,

2 either before or after their first court appearance.

3

If not released from CRF, arrestees are transported to the Kern County Superior Court

4 (“Superior Court”) for their initial court appearance. After their initial court appearance,

5 arrestees are transported back to CRF for either (a) housing in the Lerdo jail if remanded to

6 custody or (b) to be released from custody at CRF. Post-arraignment prisoners, including those

7 serving sentences, are housed at Lerdo. Lerdo is divided into four different divisions: pretrial,

8 maximum-medium (“max-med”), female minimum and male minimum.

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B. KCSO Inmate Searches

10

Procedure D of KCSO Policy C-500 specifies that persons in the general inmate

11 population (not pre-arraignment detainees):

12

may be subjected to a strip search or visual body cavity search in the following

situations:

13

• After an inmate has left the facility and returned (i.e., medical appointment, court,

14

etc.)

• After an inmate laborer has completed their assigned duties inside or outside the

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facility and is returning to their housing area.

• After any contact visit.

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• If an officer has a reasonable suspicion that an inmate is concealing a weapon or

contraband and that a strip search or visual body cavity search will result in

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discovery of the weapon or contraband.

18 KCSO, Detentions Bureau Policies and Procedures, Search Procedures C-500, p. 5; Exhibit E to

19 the Declaration of Terrence Cassidy.

20

Per KCSO Search Procedure, a strip search involves a “visual inspection of the

21 underclothing, female breasts, buttocks, or genitalia of such person.” KCSO, Detentions Bureau

22 Policies and Procedures, Search Procedures C-500, p. 2. A strip search includes a visual body

23 cavity search. A visual body cavity search includes a “visual inspection of the anus and/or

24 vaginal area; generally requiring the subject to bend over and spread the cheeks of the buttocks,

25 to squat, and/or otherwise expose body cavity orifices.” Id. From 2003 to present, the manner of

26 strip searching prisoners has not changed.

27

From January 2005 to October 2007, the Kern County Sheriff’s Department conducted a

28 strip/visual body cavity (“strip/vbc”) of all inmates who were moved from Lerdo to court and

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1 back. Upon arrival at Lerdo, prisoners were routinely subjected to a strip/visual body cavity

2 search without regard to the reasonable suspicion standard. This search policy included both

3 prisoners housed for the first time at Lerdo following an initial court appearance and prisoners

4 who were previously housed at Lerdo but who had been ordered released following a court

5 appearance.

6

Prior to October 2007, all such strip/visual body cavity searches were group searches

7 conducted in view of other inmates. Each prisoner could observe the searches of other prisoners

8 in the group. There were no partitions or other barriers to prevent such observation.

9

In October 2007, Defendants stopped “group strip searches,” adopting an updated policy.

10 KCSO, Detentions Bureau Policies and Procedures, Strip and Body Cavity Searches C-550, p. 2;

11 Exhibit 1 to Declaration of Paul Estuar in Support of Plaintiffs’ Opposition to Motion for

12 Summary Adjudication. Defendants now employ privacy partitions or booths when conducting

13 strip searches at Lerdo facilities.

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C. Individual Plaintiffs

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1. Marsial Lopez

16

From about July 2005 to November 2006, Plaintiff Marsial Lopez was a prisoner in the

17 Kern County Jail, awaiting trial and resolution of criminal charges filed against him. Between

18 July 2005 and November 2006, Plaintiff Lopez made numerous appearances in Superior Court

19 regarding pending criminal charges. After each appearance, he was returned to Lerdo. Upon his

20 arrival at Lerdo, Plaintiff Lopez was subjected to a strip/vbc search. On November 6, 2006,

21 Plaintiff Lopez appeared in Superior Court. At that time, the court dismissed all charges against

22 him and ordered his release. Plaintiff Lopez returned to Lerdo and was subjected to a strip/vbc

23 search.

24

2. Sandra Chavez

25

On February 17, 2007, KCSO deputies arrested Plaintiff Sandra Chavez. She was housed

26 at CRF where she was subjected to a strip/vbc search

27 ///

28 ///

5

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 6 of 32

1

3. Theodore Medina

2

On or about May 10, 2006, KCSO deputies arrested Plaintiff Theodore Medina. He was

3 housed at Lerdo. On May 26, 2006, he appeared in Superior Court at which time the court

4 sentenced him to time served. Plaintiff Medina returned to Lerdo and was subjected to a

5 strip/vbc search.

6

D. Court Returnees

7

Between January 2005 and October 2007, the Kern County Sheriff’s Department

8 subjected all inmates who were returning from court to a strip/vbc search . Inmates housed at the

9 Lerdo facility of the Kern County Jail are required to be transported to one of the Kern County

10 Superior Court locations to appear regarding the criminal charges against them. Hundreds of

11 inmates are transported to court each day from the Lerdo facility. Sometimes at a court

12 appearance, the court orders that the inmate should be released. Reasons for release may include

13 release on the inmate’s own recognizance, posting bail or complete dismissal of the criminal

14 charges.

15

When the court issues an order of release, the clerk of the court enters the court’s order

16 into the local computerized Criminal Justice Information System (“CJIS”), as well as the reason

17 for the order of release. After the clerk enters the information, CJIS creates a “flag” on the

18 inmate’s CJIS record. For jail staff to locate the flag, they must run a CJIS search to pull the

19 records with the specific, court entered flag. Once jail staff runs the CJIS search for the inmates

20 ordered released, each of these inmate records must be checked to determine whether there are

21 other reasons for the inmate to remain in jail. Reasons for holding the inmates after a court-

22 ordered release on a particular criminal case may include the existence of other ongoing criminal

23 cases, holds or warrants. To conduct this check, the local CJIS system must be searched, along

24 with the statewide California Law Enforcement Telecommunications System (“CLETS”). If it is

25 determined that there is no other basis for the inmate to be retained in the jail, then the inmate is

26 released.

27 ///

28 ///

6

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 7 of 32

1

DISCUSSION

2 A. Summary Judgment Standard

3

Summary judgment is appropriate when no genuine issue of material fact exists and the

4 moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317

5 (1986). “If the party moving for summary judgment meets its initial burden of identifying for the

6 court the portions of the materials on file that it believes demonstrate the absence of any genuine

7 issues of material fact,” the burden of production shifts and “the non moving party must set forth,

8 by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine

9 issue for trial.’” T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630

10 (9th Cir. 1987) (quoting Fed.R.Civ.P. 56(e)). As to the specific facts offered by the nonmoving

11 party, the court does not weigh conflicting evidence, but draws all inferences in the light most

12 favorable to the nonmoving party. Id. at 630-31.

13

If the moving party meets its initial responsibility, the burden then shifts to the opposing

14 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

16

In attempting to establish the existence of this factual dispute, the opposing party may not

17 rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the

18 form of affidavits, and/or admissible discovery material, in support of its contention that the

19 dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must

20 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

21 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W.

22 Elec. Serv.,809 F.2d at 630, and that the dispute is genuine, i.e., the evidence is such that a

23 reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc.,

24 818 F.2d 1433, 1436 (9th Cir. 1987).

25

In the endeavor to establish the existence of a factual dispute, the opposing party need not

26 establish a material issue of fact conclusively in its favor. It is sufficient that the claimed factual

27 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

28 trial. T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

7

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 8 of 32

1 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

2 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

3 amendments).

4

In resolving the summary judgment motion, the court examines the pleadings,

5 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

6 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477

7 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the

8 court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United

9 States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Nevertheless, inferences are not

10 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from

11 which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-

12 45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

13

Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

14 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken

15 as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

16 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 17 B. Discussion2

18

1. Fourth Amendment

19

In Count One, Plaintiffs contend that Defendants violated Plaintiffs’ rights to be secure in

20 their persons against unreasonable searches and seizures as guaranteed by the Fourth and

21 Fourteenth Amendments to the United States Constitution. FAC, at ¶ 46. Plaintiffs seek

22 recovery of damages pursuant to 42 U.S.C. § 1983. FAC, at ¶ 46.

23

The Fourth Amendment protects prisoners from unreasonable searches and seizures.

24 Strip searches that are excessive, vindictive, harassing, or unrelated to any legitimate penological

25

26
2The Court has reviewed Plaintiffs’ amended complaint, the cross-motions for summary judgment, the
27 oppositions, and the replies. The Court declines to exhaustively list every argument forwarded, every fact recited,
and every piece of evidence submitted by the parties. Omission in this order of reference to various arguments, facts,
28 or evidence should not be interpreted by the parties as an indication that the Court overlooked that argument, fact, or
piece of evidence.

8

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 9 of 32

1 interest are not reasonable. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). Neither

2 the United States Supreme Court nor the Ninth Circuit has yet held that prisoners retain no

3 privacy rights under the Fourth Amendment. Hudson v. Palmer, 468 U.S. 517, 526 (1984)

4 (“Fourth Amendment proscription against unreasonable searches does not apply within the

5 confines of the prison cell.”) (emphasis added); Bell v. Wolfish, 441 U.S. 520, 558 (1979)

6 (“assuming [without deciding] that inmates, both convicted prisoners and pretrial detainees,

7 retain some Fourth Amendment rights upon commitment to a corrections facility . . . .”); Somers

8 v. Thurman, 109 F.3d 614 (9th Cir. 1997). The Ninth Circuit has found that prisoners retain a

9 limited right to bodily privacy. Michenfelder, 860 F.2d at 333.

10

In analyzing whether searches of detainees violate the Fourth Amendment, the Supreme

11 Court set forth a balancing test in Bell, 441 U.S. at 559. In Bell, the Supreme Court held that

12 visual body cavity searches of pre-trial detainees conducted after every contact visit with a person

13 from outside the institution did not violate the Fourth Amendment. Id. at 558.

14

The Bell court explained:

15

The test of reasonableness under the Fourth Amendment is not capable of precise

definition or mechanical application. In each case it requires a balancing of the

16

need for the particular search against the invasion of personal rights that the

search entails. Courts must consider the scope of the particular intrusion, the

17

manner in which it is conducted, the justification for initiating it, and the place in

which it is conducted.

18

Id. at 559.

19

The Ninth Circuit applied the Bell factors in Way v. County of Ventura, 445 F.3d 1157,

20

1179 (9th Cir. 2006). In so doing, the Ninth Circuit found unconstitutional a strip search/visual

21

body cavity inspection of an arrestee booked on a misdemeanor drug charge, which was

22

conducted pursuant to a blanket policy of strip searching all arrestees on all drug offenses before

23

placement in the general population.

24

Group Strip Searches

25

In this case, Plaintiffs are not contesting the practice of conducting strip searches on in-

26

custody inmates. Instead, they are contesting the practice of group strip searches. There is a

27

paucity of case law in this circuit limited to the specific issue before the Court, i.e., the

28

9

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 10 of 32

1 constitutionality of strip searches conducted in groups. As such, the Court looks to the Bell

2 factors and considers the scope, place, manner and justification to assess KCSO’s group strip

3 searches.

4

The scope of intrusion associated with strip and/or visual body cavity searches has been

5 described as a “‘frightening and humiliating’ invasion, even when conducted ‘with all due

6 courtesy.’” Way, 445 F.3d at 1160 (quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 7 1984). The place of search at issue is primarily the Lerdo facility.3 The searches are conducted

8 in view of other inmates in small groups.

9

In connection with the manner of the search, Defendants argue that the searches were not

10 “excessive in their performance or ... calculated harassment,” pointing to severe personnel

11 limitations and security concerns to justify searches in small groups. (Defendants’ Memorandum

12 of Points and Authorities in Support of Motion for Summary Adjudication (“Defs.’ Mem. Supp.

13 Summ. J.”) 9.) Defendants’ assertion that the searches were not excessive or conducted in a

14 harassing manner is conclusory and does not counter the undisputed fact that strip/vbc searches

15 were conducted in a group setting.

16

To support their argument regarding the reasonable nature of the searches, Defendants

17 direct the court to Fernandez v. Rapone, 926 F.Supp. 255 (D. Mass. 1996) and Zunker v.

18 Bertrand, 798 F.Supp. 1365 (E.D. Wis. 1992), which involved group strip searches of inmates.

19 The Court initially notes that neither case is binding authority, but considers Defendants’

20 arguments in reliance on these cases. In Fernandez, the Massachusetts district court was

21 confronted with a policy of strip/vbc searching prisoners who have received visitors to ensure,

22 among other things, that no contraband is introduced into the facility. Inmates challenged the

23 strip searches, which were often conducted in the presence of other inmates who also were being

24

25

3Defendants explain that the point of entry for any inmate transported to the Lerdo Minimum facility for

housing for the first time or after attending court is a room known as “Gate 1.” Declaration of Ian Silva in Support

26 of Defendants’ Joint Motion for Summary Adjudication (“Silva Dec.”) ¶ 12; Doc. 39. Defendants report that, from
March 2005 through October 2007, no more than about 20 to 25 inmates were searched at one time at Gate 1. Silva

27 Dec. ¶ 12. From March 2005 through October 2007, when inmates were returned to their housing assignment at the
pretrial facility no more than about 10 to 15 inmates were searched at one time. Silva Dec. ¶ 13. From March 2005

28 through October 2007, when inmates were returned to their housing assignment at the Max-Med facility generally no
more than about 5 to 7 inmates were searched at one time. Silva Dec. ¶ 14.

10

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 11 of 32

1 searched. After determining that reasonable post-visit strip searches were constitutional, the

2 court then considered whether conducting searches in the vicinity of other inmates who also were

3 being searched rendered the practice unconstitutional. Fernandez, 926 F.Supp. at 261. In

4 analyzing the group searches, the court employed the Bell test and concluded that “the fact that

5 plaintiffs were often searched in the presence of other inmates being searched does not render the

6 searches unreasonable.” Id. at 262. The court noted that the searches were performed by

7 correction officers of the same sex, out of the view of visitors and/or other staff, and there were

8 no allegations of physical abuse or touching by the officers. Id. In addition, the court observed

9 that inmates shared cells, showered together and were observed throughout the day by fellow

10 inmates and male and female correction officers while dressing, bathing or even defecating. Id.

11 The court supported its conclusion that the group searches were not unreasonable by recognizing

12 that it was the policy and practice at the institution for an officer to comply with an inmate’s

13 request to be searched alone. Id.

14

Although Fernandez employed the Bell test, it is distinguishable from the instant matter.

15 In Fernandez, it was the policy and practice for an officer to comply with an inmate’s request to

16 be searched alone. Here, there is no evidence of such a policy and/or practice.

17

In Zunker v. Bertrand, the Wisconsin district court considered a correctional institution

18 policy of strip searching all inmates leaving the visiting areas. The policy was adopted in

19 response to concerns that money and drugs were being brought into the institution during

20 visitation. After concluding that the constitutionality of visual body cavity searches conducted

21 pursuant to security concerns had been established, the court considered whether the manner in

22 which the searches were conducted, i.e., within the view of other inmates, was unreasonable.

23 798 F.Supp. at 1369. In Zunker, the defendant believed that booths in a shake down room, where

24 the searches primarily were conducted, provided privacy because the officer stood in front of the

25 inmate during the strip search and obstructed the view of inmates waiting to be searched. Id. at

26 1367-68. The defendant initially did not install privacy curtains because of a belief that they

27 would impede the officer’s view and allow inmates to hide contraband. Id. at 1369-70. The

28 court determined that defendant took additional steps to try to protect the privacy of inmates who

11

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 12 of 32

1 were subjected to strip searches. Id. at 1369. That the defendant later decided to provide inmates

2 with the privacy curtains did not render the initial decision or the initial searches unreasonable.

3 Id. at 1370. The court concluded that the privacy interest in not having other inmates view the

4 strip searches did not outweigh the security interests of the prison. Id.

5

Zunker is readily distinguishable.4 In Zunker, the searches at issue were conducted in

6 booths and inmates were blocked from the view of other inmates by the officer conducting the

7 search. Here, however, there is no evidence of booths or any other efforts undertaken to protect

8 privacy rights. As the Zunker court acknowledged, “it is preferable to conduct strip searches in a

9 way that protects the privacy of the inmates as much as possible.” Zunker, 798 F.Supp. at 1370.

10

Defendants next argue that the Ninth Circuit has rejected the argument that strip searches

11 must be conducted in a private place outside of view of other inmates. Defendants cite

12 Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) and Michenfelder, supra., 860 F.2d at

13 333-34, to support their argument. Plaintiffs counter that it is incorrect to suggest that Ninth

14 Circuit precedent permits group strip searching. Plaintiffs distinguish Thompson and

15 Michenfelder as not addressing group strip searches.

16

In Thompson, prison officials developed a plan to detect illicit drugs in the prison. The

17 plan called for prison staff to remove pre-selected inmates, and their cellmates, from their cells,

18 while the cells were searched for drugs and urine samples were collected. The inmates were

19 chosen because of their prior involvement with illicit drugs. Prison officials subjected 129 of

20 3,400 inmates to the plan. Strip searches were not discussed in the search plan. In carrying out

21 the plan, guards removed inmate Thompson and his cellmate from their cell and visually

22 inspected their genitals and rectal areas as part of a strip search. The search took place within

23 view of other prisoners on the tier outside their cell. Thompson, 111 F.3d at 697.

24

25

26

4Insofar as Plaintiffs seek to further distinguish Fernandez and Zunker because the matters involved

27 convicted inmates and not pretrial detainees, there is no indication that the searches were imposed as punishment and
Bell recognized no distinction between pretrial detainees and convicted inmates regarding regulations governing

28 prison security. See Bell, 441 U.S. at 546-47 & n. 28.

12

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 13 of 32

1

Inmate Thompson argued in part that the strip searches should have been conducted in a

2 more private location, out of view of the other prisoners. The court rejected this argument,

3 indicating that it would not question the prison officials’ judgment that the conditions required

4 searches outside the prisoners’ cells in order to protect the safety of the officers conducting them.

5 Id. at 701. In addition, the court determined that having the searches in an entirely separate area

6 would potentially allow prisoners to discard contraband on the way to the separate area. Id. The

7 court found that Thompson failed to meet his burden of showing that the strip search violated a

8 clearly established right protected by the Fourth Amendment. Id.

9

In Michenfelder, the Ninth Circuit considered the strip search policy at the Nevada State

10 Prison’s Unit 7, the maximum security unit for the state’s 40 most dangerous prisoners.

11 Strip/vbc searches were conducted every time a Unit 7 inmate left or returned to the unit. The

12 searches occurred at the end of the hallway, visible to other prisoners whose cell doors opened

13 onto the corridor and visible to some officers. The prisoner in Michenfelder argued that strip

14 searches should be conducted within the privacy of prisoners’ cells rather than out in the hallway.

15 Although the Ninth Circuit stated that the prisoner’s argument was not meritless, the court went

16 on to conclude that the unit’s layout presented only two alternative locations–the hallway or the

17 prisoner’s cell–and it would not question the prison’s judgment that conditions in the unit

18 reasonably required searches outside the prisoners’ cells to protect the safety of officers

19 conducting them. Michenfelder, 860 F.2d at 333. However, the court did “encourage [the

20 prison] to opt for less public searches when security considerations allow[ed].” Id.

21

Thompson and Michenfelder involve unique circumstances. In Thompson, the court

22 confronted a plan to detect contraband targeted to specific inmates, not a blanket policy

23 permitting group strip searches. Similarly, the policy in Michenfelder limited searches to the

24 state’s most dangerous prisoners, which were housed in the maximum security unit, not a blanket

25 strip search policy. Further, when considering the visible nature of the strip searches, the

26 Michenfelder court focused its analysis on officer safety and the lack of available alternatives.

27 860 F.2d at 333. Nonetheless, the court encouraged less public searches when security

28 considerations allowed.

13

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 14 of 32

1

Although Defendants have made general assertions regarding limited space and limited

2 staffing as precluding individualized searches, Defendants made no apparent efforts to conduct

3 individualized searches or to preserve the privacy of the individuals during searches.

4 Michenfelder, 860 F.2d at 333 (encouraging prison to opt for less public searches when security

5 considerations allow); Craft v. County of San Bernardino, 468 F.Supp.2d 1172, 1176 (C.D.Cal.

6 2006) (factor regarding manner of searches strongly favored inmates where searches were

7 conducted “en masse without any attempt to limit the humiliation occasioned by conducting the

8 searches in full view of dozens of other individuals”). Defendants’ arguments regarding lack of

9 adequate resources and limited space fall within the category of administrative burden and

10 inconvenience. Plaintiffs properly discount these arguments as not providing a basis to permit

11 constitutional violations. Cf. Craft, 468 F.Supp.2d at 1178 (lack of funds does not justify a

12 constitutional violation); Stone v. City and County of San Francisco, 968 F.2d 850, 858

13 (financial constraints do not allow states to deprive persons of their constitutional rights).

14 Defendants proffered no evidence of lack of available alternatives or the preclusion of officer

15 safety, and, while not determinative, the subsequent policy change belies any assertion that there

16 were a lack of alternatives or that safety considerations would not permit individualized searches.

17

Defendants’ additional arguments regarding security concerns relate to the justification

18 for the searches at issue. As the Supreme Court recognized in Bell,

19

maintaining institutional security and preserving internal order and discipline are

essential goals that may require limitation or retraction of the retained

20

constitutional rights of convicted prisoners and pretrial detainees. Central to all

other corrections goals is the institutional consideration of internal security within

21

the corrections facilities themselves.

22 Bell, 441 U.S. at 546-47 (citations and internal quotations omitted). Accordingly, “when an

23 institutional restriction infringes on a specific constitutional guarantee ... the practice must be

24 evaluated in the light of the central objective of prison administration, safeguarding institutional

25 security.” Id. at 547.

26

To demonstrate “legitimate, identifiable security reasons,” Defendants contend that the

27 “facts clearly establish that in the last five years, approximately 1,900 inmates in KCSO custody

28 have been found guilty of having some type of prohibited contraband.” (Defs.’ Mem. Supp.

14

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 15 of 32

1 Summ. Adj. 9; Silva Dec. ¶ 19). Since September 2007, KCSO discovered contraband possessed

2 by 22 inmates as a result of strip searches. (Defs.’ Mem. Supp. Summ. Adj. 9; Silva Dec. ¶ 19).

3 Defendants’ asserted justification for the policy–the prevention of contraband being introduced

4 into the jail–is “an extremely weighty government interest.” Thompson v. City of Los Angeles,

5 885 F.2d 1439, 1446 (9th Cir. 1989) (prevention of the introduction of weapons or other

6 contraband); Way, 445 F.3d at 1161 (recognizing the difficulty of operating a detention facility

7 safely, the seriousness of the risk of smuggled weapons and contraband, and the deference owed

8 to jail officials' exercise of judgment in adopting and executing policies necessary to maintain

9 institutional security); Michenfelder, 860 F.2d at 332 (acknowledging “[v]isual body cavity

10 searches conducted after contact visits as a means of preventing prisoners' possession of weapons

11 and contraband, even absent probable cause, have been found reasonable by the Supreme Court”)

12 (citing Bell, 441 U.S. at 558-60, 99 S.Ct. at 1884-85).

13

However, the evidence presented by Defendants’ declaration does not reveal whether the

14 contraband discoveries were made pursuant to the group strip searches at issue or whether they

15 were the result of searches conducted based on a tip, reasonable suspicion or cell search. See,

16 e.g., Way, 445 F.3d at 1161 (requiring link between blanket strip search policy and legitimate

17 security concerns); Giles, 746 F.2d at 618 (requiring demonstration that security interests

18 warranted the serious invasion of privacy inflicted by strip searching of arrestee and concluding

19 the evidence of smuggling activity was minimal), overruled on other grounds by Hodgers-Durgin

20 v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Craft, 468 F.Supp.2d at 1178 (“evidence

21 does not reveal whether [contraband] discoveries were made pursuant to a search of a

22 pre-arraignment transferee (such as the ones at issue in the present case), to say nothing of the

23 fact that defendants make no attempt to demonstrate that any particular pre-arraignment

24 transferee had been identified as likely or potentially likely to smuggle contraband in a manner

25 likely to be detected by a strip and/or visual body search). Defendants have not provided

26 evidence suggesting that group strip searches (versus individualized searches) increase the

27 likelihood of contraband finds. Insofar as Defendants have provided examples of specific

28 inmates who were found with contraband when strip searched, these examples are not

15

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 16 of 32

1 instructive.5 The policy of strip searching individuals for purposes of discovering contraband is

2 not being challenged. The issue is group strip searches. Defendants have provided no evidence

3 to suggest that the contraband was more likely to be found during a group strip search than a

4 search which afforded the individual being searched some privacy.

5

Defendants fault Plaintiffs for their failure to cite Powell v. Barrett, 541 F.3d 1298 (11th

6 Cir. 2008) in which the Eleventh Circuit, en banc, concluded that a policy or practice of strip

7 searching all arrestees at the time of booking was constitutionally permissible. The Powell

8 decision is of no precedential value in this circuit and it is unpersuasive. In addition, although

9 the Powell court was willing to uphold searches so long as they were no more intrusive than the

10 visual body cavity searches in Bell, the strip search at issue in Powell did not include a visual

11 body cavity search. Instead, the search occurred immediately after each plaintiff had taken a

12 group shower with other incoming detainees of the same sex and before they put on their jail

13 jumpsuits. The strip searches consisted of one or more guards viewing the front and back sides

14 of the plaintiffs’ naked bodies. The exposure of flesh was no greater than what occurred in the

15 shower. Id. at 1313 n. 6. The Powell court did not think it was open to “serious dispute that

16 inmates of the same sex may be required to shower together and that guards of that sex may

17 watch them while they are showering to prevent any misconduct.” Id. (internal citations omitted).

18 The court concluded that it “necessarily follows that [a] visual strip search is not

19 unconstitutional.” Id. In the instant case, however, a visual body cavity is not the apparent

20 equivalent to viewing a detainee in the shower.

21

Under the guidance of Michenfelder, which encouraged less public searches when

22 security considerations allow, the Court finds that the blanket policy of strip searching detainees

23 in groups violates the Fourth Amendment. Accordingly, Plaintiffs’ motion for summary

24

25

5The Declaration of Ian Silva provides: “In a widely publicized incident in 2007, convicted mass-murderer

Vincent Brothers managed to secret a fabricated handcuff key in his hair during a visit to court. This key was

26 discovered during a strip search of his person....In another incident, murder suspect Andrew Hernandez was strip
searched prior to a court appointment in May of 2007. A razor blade was discovered in his shoe. In May of 2008,

27 after strip searches had been restricted by Sheriff’s Office policy, Hernandez was transported to a hospital without
being strip searched. He produced a stolen handcuff key, removed his restraints, and fled. He was recaptured by

28 Deputies, but not before he broke into an occupied apartment in an attempt to evade the pursuit.” Silva Dec. ¶¶ 17-
18.

16

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 17 of 32

1 adjudication limited to KCSO’s policy of group strip searching prisoners in violation of the

2 Fourth Amendment is GRANTED. Defendants’ motion for summary adjudication as to this

3 claim is DENIED.

4

Court Returnees Ordered Released

5

As to the prisoners ordered released, Plaintiffs argue that Defendants cannot justify their

6 former policy of subjecting all prisoners who have been ordered released to a strip search.

7 Defendants contend it is well established that where exposure to the general public presents a

8 very real danger of contraband being passed to a detainee, a policy of strip searching the

9 detainees upon their return from the courthouse and prior to their being placed back in the

10 general population of the detention center is both justified and reasonable.

11

Defendants cite Richerson v. Lexington Fayette Urban County Govt., 958 F.Supp. 299,

12 307 (E.D. Ky. 1996) to support strip searching of a post-arraignment, pre-trial detainee returning

13 from court to general population. Defendants’ reliance on Richerson overlooks a key distinction.

14 Richerson addressed a policy regarding strip searching a detainee returned to the general

15 population following his arraignment, not a detainee who is ordered released, but subsequently

16 returned to the general population for administrative reasons pending actual release. Richerson,

17 958 F.Supp. at 306 n. 4. Defendants provide no authority to support the propriety of strip

18 searching detainees who have been ordered released.

19

In justification of the policy of searching court returnees who have been ordered released,

20 Defendants argue that neither the corrections officers escorting the detainees to and from the

21 courthouse nor the officers stationed in the jail facility know whether a detainee has been ordered

22 released at the time the detainee returns to the jail. Defendants assert that when the court issues

23 an order of release, the clerk of the court enters the court’s order into the local computerized

24 Criminal Justice Information System (“CJIS”). Defendants further assert that due to the time

25 delay between the return from court and the entry of release orders, there is no way for custodial

26 staff to know which of the inmates are going to be released following their court appearances

27 and, hence, inmates returning from court must be re-housed in the jail until further information is

28 received later in the day regarding their release. In support of this argument, Defendants provide

17

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 18 of 32

1 only the conclusory declaration of Ian Silva, stating that the clerk may enter the order at any time

2 before the end of the clerk’s work day and, almost always, the inmate has returned to the Lerdo

3 facility before the clerk has entered the order in CJIS. (Declaration of Ian Silva in Support of

4 Defendants’ Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified

5 Immunity and Eleventh Amendment Immunity (“Second Silva Dec.”) ¶¶ 5-9; Doc. 66).

6 Defendants provide no evidence to support the assertions as to the Superior Court’s practice, the

7 actual timing of release orders or, more importantly, evidence to suggest Defendants make any

8 effort to determine whether a detainee has been ordered released before the detainee is strip

9 searched and returned to the general population. Additionally, Defendants offer no evidence to

10 suggest that the percentage of persons ordered released is high or that there is no means to

11 identify or segregate them from other court returnees to prevent their return to the general

12 population. As the Craft court reasoned:

13

As to the court returnees entitled to release, although defendants conduct the searches

in order to maintain institutional security, they create the security concerns they seek

14

to address by failing to segregate individuals entitled to release from those who are

and/or who will be returned to the general population. This category of plaintiffs are,

15

by definition, those who became entitled to release as a result of their court

appearances. A blanket policy of subjecting these individuals to strip and/or visual

16

body cavity searches cannot be reconciled with the Fourth Amendment. Cf. Ward v.

San Diego County, 791 F.2d 1329, 1333 (9th Cir. 1986) (“In most instances the

17

unreasonableness of a strip search conducted prior to an [own recognizance] release

determination is plain.”), cert. denied sub nom., 483 U.S. 1020, 107 S.Ct. 3263, 97

18

L.ED.2d 762 (1987).

19 Craft, 468 F.Supp.2d at 1179. That Craft may have been limited to arrestees entitled to release as

20 opposed to detainees entitled to release is distinction without a difference here as both the

21 arrestees and the detainees are entitled to release as a result of court appearances.

22

Accordingly, Plaintiffs’ motion for summary adjudication limited to KCSO’s policy of

23 strip searching persons ordered released from custody in violation of the Fourth Amendment is

24 GRANTED.

25

Defendants contend that the County of Kern cannot be liable for any violation of the

26 constitutional rights fo detainees ordered released because it is the Superior Court’s policy

27 procedure which prevents jail staff from being able to determine the inmates’ status upon return

28 to the jail rather than County’s. This argument is simply without merit or factual support.

18

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 19 of 32

1 Generally, a claim against a local government unit for municipal or county liability requires an

2 allegation that “a deliberate policy, custom, or practice . . . was the ‘moving force’ behind the

3 constitutional violation . . . suffered.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th

4 Cir. 2007); City of Canton, Ohio, v. Harris, 489 U.S. 378, 385 (1989). Contrary to Defendants’

5 assertion, it is not the Superior Court’s policy, but rather the jail policy and practice of strip

6 searching persons ordered released and returning to them to general population. The County of

7 Kern is not entitled to judgment as a matter of law and Defendants’ summary adjudication

8 motion regarding the court-returnee class is DENIED.

9

2. Due Process Clause of the Fourteenth Amendment

10

In Count One of the FAC, Plaintiffs allege that Defendants violated their rights under the

11 Fourteenth Amendment to be free from unreasonable searches and seizures. FAC, at ¶ 46.

12 Defendants argue that the group searches at issue do not violate Plaintiffs’ rights under the Due

13 Process Clause of the Fourteenth Amendment and seek summary adjudication.

14

In evaluating the constitutionality of conditions or restrictions of pretrial detention which

15 implicate only the deprivation of liberty without due process of law, the United States Supreme

16 Court has indicated that the proper inquiry is whether the conditions amount to punishment of the

17 detainee. Bell, 441 U.S. at 535-37. A court must decide whether the disability is imposed for the

18 purpose of punishment or whether it is but an incident of some other legitimate governmental

19 purpose. Bell, 441 U.S. at 538. Plaintiffs did not expressly oppose Defendants’ due process

20 arguments and count one of the FAC does not expressly allege a due process violation premised

21 on the Fourteenth Amendment. As Defendants contend, however, there are no facts to suggest

22 that any of the Plaintiffs were strip searched as a means for punishment. Plaintiffs have failed to

23 demonstrate that the practice of searching inmates in small groups violates due process rights

24 under the Fourteenth Amendment. Accordingly, to the extent that Plaintiffs have alleged a

25 Fourteenth Amendment due process violation regarding group strip searches, Defendants’ motion

26 for summary adjudication as to this claim is GRANTED.

27 ///

28 ///

19

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 20 of 32

1

3. Equal Protection of the Fourteenth Amendment

2

In Count Two, Plaintiffs allege that the strip and/or vbc searches “deprived plaintiffs and

3 class members of the protections afforded by provisions of the 14th Amendment Equal Protection

4 guarantees.” FAC, at ¶ 47. Defendants seek summary adjudication on Plaintiffs’ equal

5 protection claim.

6

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall

7 deny any person equal protection of the laws. City of Cleburne v. Cleburne Living Center, 473

8 U.S. 432, 439 (1985). Thus, all persons similarly situated should be treated alike. Id.; Plyler v.

9 Doe, 457 U.S. 202, 216 (1982). Dissimilar treatment of dissimilarly situated persons does not

10 violate Equal Protection. See Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) (treatment of

11 dissimilarly situated persons in a dissimilar manner does not violate the Equal Protection

12 Clause); Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir.

13 1994).

14

Plaintiffs challenge the unequal practice of providing privacy for pre-arraignment strip

15 searches, but not other strip searches conducted by Defendants. Plaintiffs have offered no

16 authority to support their contention that pre-arraignment arrestees and post-arraignment persons

17 are similarly situated. Plaintiffs’ attempt to equate the two by arguing that a person’s interest in

18 maintaining the privacy of his or her body cavities is the same for both arrestees and pre-trial

19 detainees is unpersuasive. The Court agrees with Defendants that, in this context, pre-

20 arraignment arrestees are not similarly situated to post-arraignment detainees. Compare Giles,

21 746 F.2d at 615 (“arrestees for minor offenses may be subjected to a strip search only if jail

22 officials have a reasonable suspicion that the particular arrestee is carrying or concealing

23 contraband or suffering from a communicable disease”), with Bell, 441 U.S. at 546-47 & n. 28

24 (finding no basis to conclude that pretrial detainees pose any lesser security risk than convicted

25 inmates and applying constitutional rights enjoyed by convicted prisoners to pretrial detainees;

26 determining visual body cavity searches following contact visits did not violate Fourth

27 Amendment and could be conducted on less than probable cause).

28

20

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 21 of 32

1

Insofar as Plaintiffs fault Defendants for not applying California Penal Code section

2 4030(m) to post-arraignment detainees in their Equal Protection claim, their argument is without

3 merit. California Penal Code § 4030 applies “only to pre-arraignment detainees arrested for

4 infraction or misdemeanor offenses.” Cal. Pen. Code § 4030 (b). Subsection (m) requires all

5 strip, visual and physical body cavity searches of pre-arraignment detainees to “be conducted in

6 an area of privacy so that the search cannot be observed by persons not participating in the

7 search.” Cal. Pen. Code § 4030(m). Plaintiffs do not contend that Defendants violated section

8 4030. (Plaintiffs’ Opp. to Defs.’ Mot. Summ. Adj. 16-17 (“Since the County already conducts all

9 pre-arraignment strip searches in private...the focus of this motion is group post-arraignment strip

10 searches....). Plaintiffs essentially argue that Defendants should have extended the protections of

11 section 4030 to all detainees. However, by its terms, section 4030 is limited to pre-arraignment

12 detainees arrested on infraction or misdemeanor offenses.

13

Based on the above, Defendants’ motion for summary adjudication as to Plaintiffs’ Equal

14 Protection Clause claim as to persons alleging group strip searches is GRANTED.

15

4. State Law Claims

16

a. Right to Privacy Claim

17

Plaintiffs argue that the group strip search policy violated their right to privacy

18 guaranteed by Cal. Const. Art. 1, § 1. See Cal. Const. Art. I, § 1 (“All people are by nature free

19 and independent and have inalienable rights. Among these are enjoying and defending life and

20 liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety,

21 happiness, and privacy.”). Plaintiffs complaint does not include a separate cause of action for

22 violation of section 1, but Plaintiffs have filed a motion to amend their complaint to allege a

23 separate cause of action. Concurrently with this order, Plaintiffs have been granted leave to file

24 a second amended complaint alleging a section 1 cause of action and the parties arguments in

25 connection with the section 1 claim are addressed.

26

Several courts have indicated that in the search and seizure context, the Article I, § 1

27 privacy clause of the California Constitution has not been held to establish a broader protection

28 than that provided by the Fourth Amendment of the United States Constitution. See, e.g., Quon

21

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 22 of 32

1 v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 903 (9th Cir. 2008) (the privacy protected

2 by Article I, Section 1 of the California Constitution is no broader in the area of search and

3 seizure than the privacy protected by the Fourth Amendment) (quoting Hill v. Nat’l Collegiate

4 Ath. Ass’n, 7 Cal.4th 1, 30 n.9 (1994)), reh’g denied, 554 F.3d 769 (2009); Sanchez v. County

5 of San Diego, 464 F.3d 916, 943 (9th Cir. 2006) (in search and seizure context, the Article I,

6 Section 1, privacy clause of the California Constitution has never been held to establish a

7 broader protection than that provided by the Fourth Amendment), reh’g denied, 483 F.3d 965

8 (9th Cir. 2007), cert. denied, 128 S.Ct. 649 (2007). Accordingly, the discussion of Plaintiffs’

9 federal constitutional claim resolves both the federal and state constitutional privacy claims.

10 Plaintiffs’ motion for summary adjudication regarding this claim is GRANTED.

11

b. California Constitution § 7 and § 13

12

In Count Three, Plaintiffs claim that the strip and/or visual body cavity searches violated

13 California Constitution, Art. 1, § 7 (equal protection) and § 13 (unreasonable search and

14 seizure). FAC, at ¶ 48. Plaintiffs seek summary judgment regarding these claims. Defendants

15 argue that there is no private cause of action for damages for an alleged violation of § 13.

16

Plaintiffs may not bring damages claims directly under Article I, Section 13 or Section 7.

17 See Brown v. County of Kern, 2008 WL 544565, *17 (E.D.Cal. February 26, 2008) (plaintiff in

18 an excessive force case could not bring a damages claim directly under Article 1, Sections 7 or

19 13 of the California Constitution in part because alternative statutory and/or common law causes

20 of action were available). As Plaintiffs cannot assert an independent cause of action for

21 violation of sections 7 and 13, Plaintiffs are not entitled to summary judgment as to their third

22 cause of action.

23

c. California Civil Code § 52.1(b)

24

As to the group strip searches, Defendants seek summary adjudication regarding

25 Plaintiffs’ claims for damages in count four pursuant to California Civil Code § 52.1(b). FAC,

26 at ¶ 50. California Civil Code § 52.1(b) authorizes a civil cause of action by an individual

27 whose federal or state constitutional rights are interfered with in a manner prohibited by Cal.

28 Civ. Code § 52.1(a). Section 52.1(a), in turn, prohibits “threats, intimidation, or coercion, or

22

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 23 of 32

1 attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any

2 individual or individuals of rights” guaranteed by the United States and California

3 Constitutions. Plaintiffs base their § 52.1(b) claim, in part, on violations of the Fourth, Eighth

4 and Fourteenth Amendments to the United States Constitution and Article I, § § 1, 7, 13 and 17

5 of the California Constitution. FAC, at ¶ 50.

6

In their motion for summary adjudication, Defendants contend that Plaintiffs cannot

7 demonstrate an underlying violation of state or federal law in order to prevail on their claims for

8 violation of California Civil Code section 52.1. (Defs.’ Mem. Supp. Summ. Adj. 16; Doc. 37).

9 Plaintiffs did not respond expressly to Defendants’ contention in their opposition. (Doc. 54).

10 Plaintiffs also did not seek partial summary judgment regarding their claim for damages

11 pursuant to California Civil Code § 52.1(b). (Doc. 69). Although Plaintiffs’ cross-motion seeks

12 partial summary judgment regarding their Fourth and Fourteenth Amendment claims and their

13 California Constitutional claims under Article I, § § 1, 7 and 13, there is no discussion of

14 California Civil Code section 52.1. As indicated throughout this order, however, Plaintiffs have

15 demonstrated underlying violation(s) of state and/or federal law. As Defendants premised their

16 section 52.1 arguments on the ground that Plaintiffs could not demonstrate an underlying

17 constitutional violation, neither party has fully briefed their arguments regarding California

18 Civil Code section 52.1. Accordingly, Defendants’ motion for summary adjudication regarding

19 Plaintiffs’ state law claims is DENIED without prejudice.

20

5. Qualified Immunity

21

Defendants contend that the individual defendants, Youngblood and Wimbish, are

22 entitled to qualified immunity as to Plaintiffs’ constitutional claims. “Qualified immunity is ‘an

23 entitlement not to stand trial or face the other burdens of litigation.’” Saucier v. Katz, 533 U.S.

24 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Court evaluates a

25 defendant's qualified immunity defense using a two-step inquiry. Id. However, the Supreme

26 Court recently held that this two-step inquiry is no longer an inflexible requirement. Pearson v.

27 Callahan, --- U.S. ----, ----, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (explaining “that, while

28 the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as

23

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 24 of 32

1 mandatory”). It is within our “sound discretion in deciding which of the two prongs of the

2 qualified immunity analysis should be addressed first in light of the circumstances in the

3 particular case at hand.” Id.

4

Under Saucier's first prong, the court must determine whether, viewing the facts in the

5 light most favorable to the plaintiff, the government employees violated the plaintiff's

6 constitutional rights. Saucier, 533 U.S. at 201. If the court determines that a constitutional

7 violation has occurred, under Saucier’s second prong, it must determine whether the rights were

8 clearly established at the time of the violation. Id. For a right to be clearly established, its

9 contours “ ‘must be sufficiently clear that a reasonable official would understand that what he is

10 doing violates the right.’ ” Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640

11 (1987)). The protection afforded by qualified immunity “safeguards ‘all but the plainly

12 incompetent or those who knowingly violate the law.’” Brewster v. Bd. of Educ. of the

13 Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir.1998) (quoting Malley v. Briggs, 475

14 U.S. 335, 341 (1986)).

15

a. Group Searches

16

Fourth Amendment Claims

17

Defendants argue that Defendants Youngblood and Wimbish are entitled to qualified

18 immunity regarding the Fourth Amendment claims specific to group searches because there is

19 no clearly established case law.

20

At a minimum, it is established that the Fourth Amendment protects prisoners from

21 unreasonable searches and seizures. Michenfelder, 860 F.2d at 332 (strip searches that are

22 excessive, vindictive, harassing, or unrelated to any legitimate penological interest are not

23 reasonable). It is also clear that prisoners retain a limited right to bodily privacy. Michenfelder,

24 860 F.2d at 333. However, under the second prong of Saucier, the inquiry is more

25 particularized. The issue before the Court is whether the contours of the limited right to privacy

26 and the protection against unreasonable searches were sufficiently clear such that the individual

27 defendants could believe that group strip searches violated the Fourth Amendment rights of

28 post-arraignment detainees.

24

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 25 of 32

1

Plaintiffs contend that the law has been clearly established for many years prior to 2006

2 that absent some compelling reason the prisoner must be afforded privacy. Plaintiffs direct the

3 court to Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001), Logan v. Shealy, 660 F.2d 1007,

4 1014 (4th Cir. 1981) and Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir. 1982)

5 in support of their contentions. In Amaechi, the plaintiff was not searched in a private holding 6 cell, but rather on the street in front of the plaintiff’s home, subject to viewing by her family, the 7 public, and the other officers. Id. at 361-362. In disavowing the public search at issue, the

8 Fourth Circuit noted that it had “repeatedly emphasized the necessity of conducting a strip 9 search in private.” Id. at 364.

10

In Logan, the Fourth Circuit considered a strip search of a female arrested on a DWI

11 charge. A magistrate judge directed she be held for four hours or until a person took custody of

12 her. She was taken to a holding cell and a visual strip search was conducted. There was a

13 factual dispute over whether the window blinds in the holding cell were either open or broken 14 and permitted anyone in the booking area to observe the strip search. Id. at 1010. In

15 considering the issue of qualified immunity, the court reasoned:

16

We think that, as a matter of law, no police officer in this day and time could

reasonably believe that conducting a strip search in an area exposed to the

17

general view of persons known to be in the vicinity whether or not any actually

viewed the search is a constitutionally valid governmental “invasion of (the)

18

personal rights that (such a) search entails.”

19 Id. at 1014 (citation omitted).

20

In Iskander, the court ruled that evidence regarding a strip search of the plaintiff

21 warranted submission to the jury. With regard to the strip search claim, the plaintiff presented

22 evidence that the police department customarily conducted strip searches in a room with a

23 window facing a corridor through which numerous individuals might be passing at any given

24 time. In discussing the strip search claim, the Seventh Circuit indicated that “Defendant

25 naturally does not maintain that routine strip searches may be conducted in a room open to the

26 prying eyes of passing strangers consistent with the reasonableness requirement imposed on all

27 searches under the Fourth Amendment, nor would such a contention be entertained.” Iskander,

28 690 F.2d at 129.

25

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 26 of 32

1

Plaintiffs’ citations are not instructive as they addressed searches conducted in potential

2 view of the public. Plaintiffs have not identified cases that specifically proscribed the use of

3 group strip searches of post-arraignment detainees. Based the previous discussion regarding the

4 Fourth Amendment, the Court finds that at the time of the policies at issue, the law was not

5 clearly established that group strip searches of post-arraignment detainees were unconstitutional.

6 See, e.g., Bell, 441 U.S. at 558 (visual body cavity searches of pre-trial detainees conducted

7 after every contact visit with a person from outside the institution did not violate Fourth

8 Amendment; court did not consider blanket policy of group strip searching detainees);

9 Thompson, 111 F.3d at 701 (upholding searches outside of prisoners’ cells within view of other

10 inmates; court did not consider generalized strip search policy permitting group searches of

11 detainees); Michenfelder, 860 F.2d at 333 (upholding strip searches of prisoners conducted at

12 end of hallway visible to other prisoners and some officers; court did not consider strip search

13 policy permitting group strip searches of detainees); Craft, 468 F.Supp.2d at 1179 (policy of

14 group strip searching arrestees returning from court entitled to release determined unreasonable;

15 court did not expressly consider strip search policy permitting group strip searches of detainees).

16

Defendants’ motion for summary adjudication that Defendants Youngblood and

17 Wimbish are entitled to qualified immunity regarding Plaintiffs’ Fourth Amendment claims

18 specific to group strip searches is GRANTED.

19

Fourteenth Amendment and Equal Protection Claims

20

It is not necessary to address Defendants arguments that qualified immunity should be

21 applied to Plaintiffs’ Fourteenth Amendment and Equal Protection claims specific to the group

22 searches, because there has been no determination of an underlying violation of the Fourteenth

23 Amendment or an Equal Protection violation. Accordingly, Defendants’ motion for summary

24 adjudication that Defendants Youngblood and Wimbish are entitled to qualified immunity

25 regarding Plaintiffs’ Fourteenth Amendment and Equal Protection claims is GRANTED.

26

b. Court Ordered Releases

27

Defendants argue that individual defendants Youngblood and Wimbish should be

28 granted qualified immunity regarding searches of detainees upon return from court appearances

26

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 27 of 32

1 after they were ordered released. In support, Defendants contend that there is no clearly

2 established case law that would have placed Youngblood and/or Wimbish on notice that this

3 protocol was in any way unconstitutional. Insofar as Defendants argue that there is no clearly

4 established case law requiring a detention facility to know the status of detainees returning from

5 court or requiring they be segregated and held indefinitely until their status is conclusively

6 determined, this is not the appropriate inquiry. Instead, the inquiry is whether the law at the

7 time of the violation(s) was clearly established such that Defendants Youngblood and Wimbish

8 would understand that strip searches of detainees ordered release were unconstitutional.

9

Plaintiffs argue that appellate decisions as early as 1981 have held that strip searching

10 prisoners who have been ordered released violates the constitution. Plaintiffs partially rely on

11 Young v. City of Little Rock, 249 F.3d 730, 735-36 (8th Cir. 2001). Young involved a female

12 mistakenly arrested. Although the arresting officer realized the mistake, the arrestee remained

13 in jail during the weekend until she appeared in front of a judge on Monday. During this

14 detention, she was strip searched. After appearing in court, the judge determined that the wrong

15 person had been arrested and ordered her released. Instead of being released, she was

16 transported back to the county jail. While there, she was again strip searched. The strip search

17 took place in front of five or six other people. In reviewing the events after the ordered release,

18 the appellate court reasoned, in part, that she could have been transported back to the jail

19 without chaining and that “certainly there was no necessity whatever to strip search a person

20 who was wholly innocent of any charge.” Id. at 736. The court characterized the “whole

21 incident” as “shocking.” Id.

22

Unlike Young, there is no evidence regarding the innocence of the class of court

23 returnees. However, this factual distinction is not determinative. During the time period at

24 issue, the law was sufficiently clear that strip searches of persons entitled to release were

25 unreasonable. In Ward v. San Diego County, supra., the Ninth Circuit considered a policy of

26 strip searching minor arrestees even before an own recognizance release determination was

27 made and absent reasonable suspicion that the arrestee possessed a weapon or contraband.

28 Ward, 791 F.2d at 1333, cert. denied, 483 U.S. 1020 (1987). The court commented that the

27

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 28 of 32

1 facts before it suggested “the easiest possible case” and reasoned that “[i]n most instances the

2 unreasonableness of a strip search conducted prior to an [own recognizance] release

3 determination is plain.” Id. Here, a court has issued an express determination that a detainee is

4 entitled to release. Following Ward, the facts presented here make plain the unreasonableness

5 of strip searches conducted on court returnees. Accordingly, Defendants’ motion for summary

6 adjudication that Defendants Youngblood and Wimbish are entitled to qualified immunity

7 regarding the searches of detainees upon return from court appearances after they were ordered

8 released is DENIED.

9

3. Eleventh Amendment Immunity

10

Defendants argue that Sheriff Donny Youngblood, in his official capacity, is a

11 policymaker for the State of California and is immune from § 1983 liability pursuant to the

12 Eleventh Amendment. The Eleventh Amendment bars damages actions against state officials in

13 their official capacity. See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.

14 1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996); Pena v. Gardner, 976 F.2d 469,

15 472 (9th Cir. 1992).

16

Defendants rely on McMillian v. Monroe County, 520 U.S. 781 (1997) and Venegas v.

17 County of Los Angeles, 32 Cal.4th 820 (2004) to support their contention that the Sheriff is an

18 actor representing the state and cannot be sued under 42 U.S.C. § 1983. In McMillian, the

19 County was sued for allegedly unconstitutional actions undertaken by the Monroe County

20 Sheriff. The McMillian court indicated that in cases involving the liability of local governments

21 under § 1983, the court must ask whether governmental officials are final policymakers for the

22 local government in a particular area. Id. at 785-86. In deferring to state law in the context of

23 section 1983, the Supreme Court closely examined the Alabama Constitution, Code and case

24 law. After so doing, the Court concluded that “Alabama sheriffs, when executing their law

25 enforcement duties, represent the State of Alabama, not their counties.” Id. at 793. The court

26 affirmed dismissal of the claims against the county and the sheriffs in their official capacities

27 because the sheriff was not the final policymaker for the county.

28

28

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 29 of 32

1

Defendants contend that, like Alabama, the California Constitution and state laws

2 support the conclusion that the Sheriff is an actor representing the state. Defendants further

3 contend that examination of California law enforcement hierarchy reveals that California

4 Sheriffs and District Attorneys are subject to the California Attorney General in regard to the

5 official functions of their job in investigating and fighting crime and must be deemed state

6 actors. Defendants essentially argue that “the Sheriff promulgates and maintains policies to

7 ensure that violators of California law are held to answer the charges filed against them by the

8 district attorney, who acts on behalf of the State, in the Superior Court, which is a division of

9 the State.” (Defs.’ Mot. Sum. Adjud. Re: Court Returnees, Qualified Immunity and Eleventh

10 Amendment Immunity 20-21 Defendants’ Joint Motion for Summary Adjudication 15). Per

11 Defendants, the policy regarding strip searches was “established on behalf of the State of

12 California to maintain prisoners’ safety while charges were pending against them or to

13 incarcerate them on behalf of the State after they were convicted.” (Defs.’ Mot. Sum. Adjud.

14 Re: Court Returnees, Qualified Immunity and Eleventh Amendment Immunity 16).

15

Plaintiffs counter that Defendants are judicially estopped from claiming they are “arms

16 of the State” based on the Ninth Circuit’s decision in Streit v. County of Los Angeles, 236 F.3d

17 552, 565 (9th Cir. 2001). Streit involved a policy whereby prisoners were not released until

18 after all recent warrants and holds were checked. In Streit, the Ninth Circuit concluded that the

19 Sheriff acts for the County in its oversight and management of the local jail based on its

20 independent analysis of California’s constitution, statutes and case law. Id. at 561. The court

21 observed that Article XI, section 1(b) of the California Constitution designates sheriffs as county

22 officers and there was no provision in the constitution which states that the sheriff’s department

23 acts for the state when managing the local jails. The Ninth Circuit further noted that although

24 the California Attorney General has statutory control over the sheriffs in a law enforcement

25 capacity, in California, the counties hold the ultimate power over the jails. Id. In so doing, the

26 Ninth Circuit compared Cal. Gov. Code § 12560 (granting attorney general powers over

27 sheriffs’ activities relevant to the “investigation or detection of crime”), with Cal. Gov. Code §

28 25303 (granting the county boards of supervisors broad fiscal and administrative powers for the

29

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 30 of 32

1 management of the individual county jails), and also examined California Government Code

2 provisions supporting the county’s liability, including Cal. Gov. Code §§ 815.2 (monetary

3 damages paid by county), 24000(b) (sheriff included as county officer).

4

Defendants argue that at the time of the Streit ruling, the California Supreme Court had

5 not issued its ruling in Venegas, 32 Cal.4th 820. In Venegas, the court considered the issue of

6 whether a sheriff acts on behalf of the state or county when conducting a criminal investigation,

7 including detaining suspects and searching their home and vehicle. The defendants, a county

8 acting on behalf of its sheriff’s department and sheriff, claimed they were immune from liability

9 under the Eleventh Amendment because the sheriff acts on behalf of the state rather than the

10 county when engaged in investigating crime. Id. at 829. The court concluded that sheriffs act

11 on behalf of the state when performing law enforcement activities. Id. at 839. In so concluding,

12 the court relied on two other state decisions that were confined to situations in which district

13 attorneys and sheriffs were actually engaged in performing law enforcement duties, such as

14 investigating and prosecuting crime, or training staff and developing policy involving such

15 matters. Id. at 838.

16

The Venegas decision does not overturn Ninth Circuit precedent on this issue regarding

17 a federal statute and does not control on issues of federal law. See Brown, 2008 WL 544565, at

18 * 12 (declining to conclude that county sheriffs act on behalf of the state when conducting law

19 enforcement activities). This Court is bound by Ninth Circuit precedent and declines to hold

20 that the Kern County Sheriffs were acting on behalf of the State of California.

21

Defendants’ motion for summary adjudication against Plaintiffs’ causes of action for §

22 1983 claims on that ground that the Sheriffs are state actors is DENIED.

23

4. County of Kern

24

Defendants’ contend that the County of Kern is an improper party to this action and

25 request that their motion for summary adjudication as to any claims asserted against the County

26 be granted. To support this contention, Defendants argue:

27

the Kern County Sheriff in his official capacity, in addressing and fighting crime

within the confines of the jail, acts on behalf of the State of California.

28

Therefore, in that capacity he did not act on behalf of the County of Kern. Thus,

30

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 31 of 32

1

because he was acting for the State and not the County of Kern, no liability can

be imputed to the County of Kern under Monell for any actions related to the

2

strip search of detainees returning to the jail from the Kern County Superior

Court for appearances related to the criminal charges against them. Accordingly,

3

the County of Kern is an improper party to this action....

4 (Defs.’ Mot. Sum. Adjud. Re: Court Returnees, Qualified Immunity and Eleventh Amendment

5 Immunity 20-21). As the Court has rejected Defendants’ argument that the Kern County Sheriff

6 is acting on behalf of the State, the Court also rejects Defendants’ related argument that the

7 County cannot be liable. Defendants’ motion for summary adjudication as to section 1983

8 claims asserted against the County is DENIED.

9

CONCLUSION AND ORDER

10

For the reasons set forth above,

11

1. Plaintiffs’ motion for partial summary judgment/summary adjudication limited to

12 KCSO’s policy of group strip searching prisoners in violation of the Fourth Amendment is

13 GRANTED. Defendants’ motion for summary adjudication as to this claim is DENIED.

14

2. Plaintiffs’ motion for partial summary judgment/summary adjudication limited to

15 KCSO’s policy of strip searching persons ordered released from custody in violation of the

16 Fourth Amendment is GRANTED. Defendants’ summary adjudication motion regarding the

17 court-returnee class is DENIED.

18

3. Defendants’ motion for summary adjudication limited to the extent that Plaintiffs

19 have alleged a Fourteenth Amendment due process violation regarding group strip searches is

20 GRANTED.

21

4. Defendants’ motion for summary adjudication as to Plaintiffs’ Equal Protection

22 Clause claim as to persons alleging group strip searches is GRANTED.

23

5. Plaintiffs’ motion for partial summary judgment/summary adjudication regarding

24 violation of California Constitution, Article I, Section 1 is GRANTED.

25

6. Plaintiffs’ motion for partial summary judgment regarding their third cause of action

26 for violation of California Constitution Article 1, section 13 is DENIED.

27

7. Defendants’ motion for summary adjudication regarding Plaintiffs’ state law claims

28 pursuant to California Civil Code section 52.1 is DENIED without prejudice.

31

Case 1:07-cv-00474-DLB Document 91 Filed 03/31/2009 Page 32 of 32

1

8. Defendants’ motion for summary adjudication that Defendants Youngblood and

2 Wimbish are entitled to qualified immunity regarding Plaintiffs’ Fourth Amendment claims

3 specific to group strip searches is GRANTED.

4

9. Defendants’ motion for summary adjudication that Defendants Youngblood and

5 Wimbish are entitled to qualified immunity regarding Plaintiffs’ Fourteenth Amendment and

6 Equal Protection claims is GRANTED.

7

10. Defendants’ motion for summary adjudication that Defendants Youngblood and

8 Wimbish are entitled to qualified immunity regarding the searches of detainees upon return from

9 court appearances after they were ordered released is DENIED.

10

11. Defendants’ motion for summary adjudication against Plaintiffs’ causes of action for

11 § 1983 claims on that ground that the Sheriffs are state actors and are entitled to Eleventh

12 Amendment immunity is DENIED.

13

12. Defendants’ motion for summary adjudication as to section 1983 claims asserted

14 against the County is DENIED.

15

16

IT IS SO ORDERED.

17

Dated: March 31, 2009

3b142a

18

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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 Case 1:07-cv-00474-DLB Document 90 Filed 03/31/2009 Page 1 of 5

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

MARSIAL LOPEZ, et al.,

) 1:07cv0474 DLB

9

)

)

10

) ORDER GRANTING PLAINTIFF’S MOTION

) FOR LEAVE TO FILE SECOND AMENDED

11

Plaintiffs,

) COMPLAINT

) (Document 71)

12

v.

)

)

13 DONNY YOUNGBLOOD, et al.,

)

)

14

)

)

15

Defendants.

)

)

16

17

On November 12, 2008, Plaintiffs filed the instant joint motion for leave to file a second

18 amended complaint. The matter was heard on December 19, 2008, before the Honorable Dennis

19 L. Beck, United States Magistrate Judge. Barrett Litt and Donald Cook appeared on behalf of

20 Plaintiffs. Jennifer Thurston and Terence Cassidy appeared on behalf of Defendants Kern

21 County, the Kern County Sheriff’s Office, Sheriff Donny Youngblood (individually and in his

22 official capacity) and Former Sheriff Mack Wimbish (individually) (“Defendants”).

23

BACKGROUND

24

Plaintiff Marsial Lopez, individually and as class representative, filed the instant civil

25 rights action on March 27, 2007. On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez,

26 and Theodore Medina, individually and as class representatives, filed a First Amended

27 Complaint (“FAC”) against Kern County, the Kern County Sheriff’s Department, Kern County

28 Sheriff Donny Youngblood (officially and individually) and former Kern County Sheriff Mack

1

Case 1:07-cv-00474-DLB Document 90 Filed 03/31/2009 Page 2 of 5

1 Wimbish (individually). Plaintiffs seek injunctive relief and damages resulting from the strip

2 and/or visual body cavity searches of prisoners by the Kern County Sheriff’s Department.

3

The FAC contains six causes of action: (1) damages pursuant to 42 U.S.C. § 1983

4 premised on unreasonable searches and seizures in violation of the Fourth and Fourteenth

5 Amendments of the U.S. Constitution; (2) damages pursuant to 42 U.S.C. § 1983 premised on

6 violation Fourteenth Amendment equal protection guarantees; (3) violation of their equal

7 protection rights pursuant to Article I, § 7 of the California Constitution and unreasonable search

8 and seizure in violation of Article I, § 13 of the California Constitution; (4) damages pursuant to

9 California Civil Code § 52.1(b) and § 52(b) premised on violations of their rights under the

10 Fourth, Eighth and Fourteenth Amendments, Article I, §§ 1, 7, 13 and 17 of the California

11 Constitution, and California Penal Code § 4030; (5) violation of California Penal Code § 4030;

12 and (6) violation of mandatory duties under California Government Code § 815.6.

13

On November 12, 2008, Plaintiffs filed the instant motion for leave to file a second

14 amended complaint.1 Plaintiffs seek to add a seventh cause of action under Article I, §1 of the

15 California Constitution for violations of their privacy rights. Plaintiffs argue that the proposed

16 cause of action was “mistakenly omitted” from the original complaint.

17

Defendants filed a joint opposition on December 2, 2008. Plaintiffs filed a reply on

18 December 5, 2008.

19

DISCUSSION

20

Federal Rule of Civil Procedure Rule 15(a) provides that the court “should freely give

21 leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has

22 stated:

23

[i]n the absence of any apparent or declared reason – such as undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

24

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc. – the leave sought should, as the

25

rules require, be “freely given.”

26

27

28

1Plaintiffs’ motion for partial summary judgment, Defendants’ two joint motions for summary adjudication,

Plaintiffs’ motion to certify the class and Plaintiffs’ motion to strike also are pending before the Court.

2

Case 1:07-cv-00474-DLB Document 90 Filed 03/31/2009 Page 3 of 5

1 Foman v. Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has summarized these factors to

2 include the following: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; and (4)

3 futility of amendment. Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir.

4 1984). Leave to amend rests in the sound discretion of the trial court. Swanson v. United States

5 Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Despite the policy favoring amendment under

6 Rule 15, leave to amend may be denied if the proposed amendment is futile or would be subject

7 to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).

8

Defendants object to the proposed amendment on two grounds: (1) prejudice and (2)

9 futility. To demonstrate prejudice, Defendants point out that the instant motion follows the filing

10 of dispositive motions. Defendants contend that Plaintiffs attempted to assert this new claim in

11 their Opposition to Defendants first motion for summary adjudication regarding strip searches.

12 Defendants noted this impropriety in their reply of October 3, 2008. Defendants then filed a

13 second summary adjudication motion on November 7, 2008, regarding qualified immunity,

14 Eleventh Amendment immunity and court returnees. Defendants argue that Plaintiffs did not

15 seek to amend their complaint until November 12, 2008, “some six weeks after Defendants first

16 called attention to their omission and after two dispositive motions were filed.” (Defs.’ Joint

17 Opp. to Plaintiffs’ Mot. to Amend Complaint 2).

18

Defendants argue that the delay and related expense constitute prejudice, citing Ansam

19 Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) and Campbell v. Emory

20 Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999). Defendants citations are not instructive. In

21 Ansam, the court upheld the denial of leave to amend due to prejudice associated with the close

22 of discovery and the filing of a motion for summary judgment. However, the proposed claims in

23 Ansam involved an entirely new set of operative facts, a different period of time and a different

24 statute from the operative pleading. Id. at 446. Here, Plaintiffs propose to add a claim regarding

25 the right to privacy under the California Constitution. This claim does not involve a new set of

26 facts, a different time period or even a different statute from the operative pleading. For instance,

27 Plaintiffs partially base their fourth cause of action under Civil Code § 52.1(b) on an underlying

28 violation of Article I, § 1 of the California Constitution. FAC, at ¶ 50.

3

Case 1:07-cv-00474-DLB Document 90 Filed 03/31/2009 Page 4 of 5

1

The instant case also differs from Campbell. In that case, the court found prejudice and

2 undue delay inherent in an amendment asserted after the close of discovery and after dispositive

3 motions were filed, briefed, and decided. Campbell, 166 F.3d at 1162. The motions for leave to

4 amend in Campbell were filed more than one year after discovery had ended, after dispositive

5 motions had been filed, between five-and-six years after the lawsuits had begun and after the

6 plaintiff had been twice granted leave to amend. In this case, the dispositive motions have not

7 been decided, this case has been pending for two years and Plaintiffs have not requested leave to

8 amend at any other time.

9

Defendants further contend that the original complaint did not “reasonably” place them

10 on notice that Plaintiffs intended to assert an independent § 1 claim. Although Defendants

11 objected to the assertion of the section 1 claim in Plaintiffs’ cross-motion for summary judgment,

12 Defendants responded to it in their opposition to Plaintiffs’ cross-motion. (Doc. 75). Defendants

13 argued, in part, that just as Plaintiffs’ Fourth Amendment claim must fail, their Section 1 claim

14 must fail because the right of privacy established by Section 1 is not a broader protection than

15 that provided under the Fourth Amendment. (Defs.’ Opp. Cross-Mot. Sum. Adjud. 18.)

16

Several courts have indicated that in the search and seizure context, the Article I, § 1

17 privacy clause of the California Constitution has not been held to establish a broader protection

18 than that provided by the Fourth Amendment of the United States Constitution. See, e.g., Quon

19 v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 903 (9th Cir. 2008) (the privacy protected by

20 Article I, Section 1 of the California Constitution is no broader in the area of search and seizure

21 than the privacy protected by the Fourth Amendment) (quoting Hill v. Nat’l Collegiate Ath.

22 Ass’n, 7 Cal.4th 1, 30 n.9 (1994)), reh’g denied, 554 F.3d 769 (2009); Sanchez v. County of San

23 Diego, 464 F.3d 916, 943 (9th Cir. 2006) (in search and seizure context, the Article I, Section 1,

24 privacy clause of the California Constitution has never been held to establish a broader protection

25 than that provided by the Fourth Amendment). Accordingly, the Court finds no prejudice to the

26 proposed amendment as Defendants fully briefed their contentions under the Fourth Amendment.

27

28

4

Case 1:07-cv-00474-DLB Document 90 Filed 03/31/2009 Page 5 of 5

1

Insofar as Defendants argue that the proposed amendment is futile because of the

2 reasonable nature of the searches at issue, the Court defers such determination until resolution of

3 the pending summary judgment motions.

4

Based on the above, Plaintiffs’ motion for leave to file a second amended complaint is

5 GRANTED.

6

7

IT IS SO ORDERED.

8

Dated: March 31, 2009

3b142a

9

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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 Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 1 of 14

1 BARRETT S. LITT SBN 45527 PAUL J. ESTUAR SBN 167764
2 LITT, ESTUAR, HARRISON AND KITSON LLP 1055 Wilshire Blvd., Suite 1880
3 Los Angeles, CA 90017 (213) 386-3114; (213) 380-4585 facsimile
4 pestuar@littlaw.com

5 ROBERT MANN SBN 48293

6

DONALD W. COOK SBN 116666 ATTORNEYS AT LAW

7

3435 Wilshire Blvd., Suite 2900 Los Angeles, California 90010

8

(213) 252-9444; (213) 252-0091 facsimile
doncook@earthlink.net

9 Attorneys for Plaintiff

10

11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA

13 MARSIAL LOPEZ, individually, and as 14 class representative,

15

Plaintiff,

16 vs.

17 SHERIFF DONNY YOUNGBLOOD, individually and in his official capacity;
18 FORMER SHERIFF MACK WIMBISH, in his individual capacity, COUNTY OF
19 KERN, a governmental entity; KERN COUNTY SHERIFF’S DEPARTMENT,
20 a California public entity; and DOES 1 through 100,
21
Defendants.
22

Case No.
CLASS ACTION COMPLAINT FOR DAMAGES
1. 42 U.S.C. § 1983 2. Equal Protection 3. Cal. Const. Art. I, §§ 7, 13 4. Cal. Civ. Code § 52.1 5. Statutory Duties 6. Mandatory Duties
DEMAND FOR JURY TRIAL

23

24

25

26

27

28

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 2 of 14

1 I. INTRODUCTION

2

1.This action concerns the manner in which prisoners are searched in Kern County’s

3 jails, alleging, inter alia, violations of the Fourth, Eighth and Fourteenth Amendments of

4 the United States Constitution and their corollaries under the California Constitution.

5

2. The gravamen of this complaint concerns the privacy rights of prisoners, who are

6 routinely subjected to strip searches in violation of the Constitutions and laws of the United

7 States and the State of California.

8 II. JURISDICTION AND VENUE

9

3. Plaintiff presents federal claims for relief under 42 U.S.C. § 1983. Accordingly,

10 federal jurisdiction in conferred upon this Court by 28 U.S.C. §§ 1331 and 1343.

11
Plaintiff’s state law claims are so related to the federal law claims that they form part of the
12
same case or controversy. Accordingly, supplemental jurisdiction over the state law claims
13
is conferred upon this Court by 28 U.S.C. § 1367.
14
4. Plaintiff’s claims arise out of acts of the Kern County Sheriff’s Department in the
15
County of Kern, State of California, in and about Bakersfield, California. Accordingly,
16
venue is proper within the Eastern District of California.
17
III. PARTIES
18

19

Plaintiff

20

5. Plaintiff Marsial Lopez, a male, is and was at all times relevant hereto, a resident

21 of the County of Kern.

22

Defendants

23

6. Defendant County of Kern (“County”) is a public entity organized and existing

24 under the laws of the State of California. Defendant Kern County Sheriff’s Department

25 (“KCSD”) is a public entity within the meaning of California law, and is a County agency.

26 These defendants are sued in their own right for a County and/or KCSD policy, practice

27 or custom which caused plaintiff’s injuries in violation of one or more federal constitutional

28 guarantees, and on plaintiff’s state law claims based on respondeat superior, under

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 3 of 14

1 California Government Code § 815.2 and mandatory duties under California Government

2 Code § 815.6.

3

7. Defendant Donny Youngblood (“Youngblood”) is the Sheriff of Kern County, and

4 is the policy maker for the KCSD. He is sued in his official and individual capacities.

5

8. Defendant Mack Wimbish (“Wimbish”) is the former sheriff for Kern County, and

6 is Youngblood’s predecessor. Plaintiff sues Wimbish in his individual capacity only.

7

9. Plaintiff is ignorant of the true names and capacities of defendants sued herein as

8 DOES 1 through 100, inclusive, and therefore sues these defendants by such fictitious

9 names. Plaintiff will give notice of this complaint, and of one of more DOES’true names

10 and capacities, when ascertained. Plaintiff is informed and believe and based thereon

11
alleges, that defendants DOES 1 through 100 are responsible in some manner for the
12
damages and injuries hereinafter complained of.
13
10. DOES 1-50 (hereinafter collectively referred to as “KCSD Supervisory
14
defendants”) were and are now responsible for the KCSD jails and, among other things, are
15
responsible for the training, supervision, control, assignment and discipline of the sworn
16
and civilian personnel of the KCSD and County who work in, operate, administer and
17
manage the jails, and for the formulation, promulgation, adoption, application,
18

19 administration and enforcement of the policies, rules, regulations and practices of the

20 KCSD jails.

21

11. Upon information and belief, plaintiff further alleges that, at all times relevant

22 herein, the KCSD Supervisory defendants participated in, approved, and/or ratified the

23 unconstitutional or illegal acts complained of herein that occurred within KCSD jails.

24

12. Plaintiff is informed and believes, and thereupon alleges that, at all times relevant

25 herein, the individual defendants, and each of them, were the agents, servants and

26 employees of their respective employers (defendants KCSD, County) and were acting at

27 all times within the scope of their agency and employment, and with the knowledge and

28 consent of their principals and employers. At all times herein, defendants, and each of them,

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 4 of 14

1 were acting under the color of state law.

2 IV. CLAIMS OF CLASS REPRESENTATIVE

3

13. On or about late June 2005, plaintiff surrendered himself to out-of-state law

4 enforcement officers upon learning that there was a Kern County felony warrant for his

5 arrest, for charges filed in the Kern County Superior Court. Thereafter, plaintiff was

6 incarcerated in the Kern County jails, commencing late June 2005 and continuing until the

7 first week of November, 2007.

8

14. During his incarceration in the Kern County jails, KCSD deputies transported

9 plaintiff to and from the Kern County Superior Court for appearances on plaintiff’s then

10 pending criminal case. Whenever plaintiff was transported between jail facilities, and when

11
he was returned to jail from superior court, plaintiff was subjected to intrusive visual body
12
cavity/strip searches. That is, in the presence of others not necessary for the searches and
13
without any privacy, plaintiff was forced to remove all his clothing, expose his body
14
cavities in the presence of other persons, in unsanitary conditions.
15
15. On or about November 6, 2007, plaintiff, still incarcerated in the Kern County
16
jail and awaiting a retrial (in his first trial the jury deadlocked 11-1, in favor of acquittal)
17
was taken before the Kern County Superior Court. At that time the prosecuting authority
18

19 dismissed all criminal charges against plaintiff. The prosecutor dismissed the charges

20 because the prosecutor’s office finally decided to test DNA found on clothing recovered

21 from the crime scene. The DNA test results excluded plaintiff as the perpetrator of the

22 charged crimes.

23

16. After the charges were dismissed, the superior court ordered plaintiff’s release.

24 At that point KCSD deputies returned plaintiff to the Kern County jail for the sole purpose

25 of processing his release from custody. Upon arrival at the jail, plaintiff was subjected to

26 an illegal and intrusive visual body cavity/strip search, in unsanitary conditions, without

27 privacy, and without reasonable suspicion that plaintiff possessed contraband or weapon(s).

28 The search took place in the presence of persons not necessary for the search, forcing

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 5 of 14

1 plaintiff to expose his body cavities in the presence of other persons, without privacy, and

2 in unsanitary conditions.

3

17. Plaintiff has timely filed a claim under Government Code § 910 with the County

4 of Kern, both on behalf of himself and other persons similarly situated.

5 V. CLASS ACTION ALLEGATIONS

6

18. Plaintiff brings this action on his own behalf, and on behalf of a class of all other

7 persons similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure. The
8 class is defined as those persons who, in the two years preceding the filing of this action,
9 and up until the date of class certification, or such other date as the Court may set, were
10 forced to undergo unlawful strip and/or visual body cavity searches in Kern County’s jails
11
which are operated, maintained and under the control of the County, the KCSD and the
12
Supervisory defendants.
13
19. On information and belief, plaintiff alleges the strip and/or visual body cavity
14
searches to which he and class members were subjected, were done pursuant to defendants’
15
policy and practice to indiscriminately search all or a large number of persons being
16
processed into the jail without regard to: a) The nature of their offense or criminal history;
17
b) Whether they are under an order of release or not; c) Whether they have had contact
18
19 with any persons from outside the County jail system who could reasonably be believed to
20 be a potential source of contraband or weapons; d) Whether there is cause of any kind to
21 believe they are a potential source of contraband or weapons; e) Whether there is any other

22 articulable justification for defendants’indiscriminate strip and body search policy; or f)

23 Whether they are “prearraignment detainees,”as that term is used in California Penal Code

24 § 4030(b).

25

20. On information and belief, plaintiff alleges that defendants have a policy of not

26 limiting the persons who can see or hear or observe all or part of the strip and body cavity

27 searches to those who are necessary to the procedure. Thus, other inmates, members of the

28 opposite six, dispensable jail personnel and possibly others are able to see or hear some or

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 6 of 14

1 all of the searches described below. Specifically, class members are required to submit to

2 strip searches during which other people, who are not participating in the search and

3 possibly are of the opposite sex, including jail staff and other inmates, are able to observe

4 the search and the class members’naked bodies. In many instances, class members are

5 forced to touch each other’s bodies during the searches.

6 VI. RULE 23 PREREQUISITES

7

A. Numerosity

8

21. In accordance with F.R.Civ. P. Rule 23(a), the members of the class are so

9 numerous that joinder of all members is impracticable. Plaintiff does not know the exact

10 number of class members. Plaintiff is informed and believes and thereon alleges that there

11
are more than 50 prisoners per day who are subjected to strip and/or body cavity searches
12
as a result of defendants’policy and practice of indiscriminately subjecting prisoners to
13
strip and body cavity searches. Plaintiff is informed and believes and thereon alleges that
14
the number of persons in the proposed class is in the thousands.
15
B. Common Issues of Fact or Law
16
22. In accordance with F.R. Civ. P. Rule 23(a), there are questions of fact common
17
to the class. Plaintiff is informed and believes and thereon alleges that the common
18

19 questions of fact include, but are not limited to the following: (1) Whether the KCSD

20 routinely subjects all prisoners to strip and/or body cavity searches without there being any

21 reasonable suspicion, based on specific or articulable facts, to believe any particular inmate

22 has concealed drug(s), weapon(s) and/or any contraband on their persons or in their body

23 cavities; (2) Whether the strip and/or body cavity searches are conducted in an area of

24 privacy so that the search cannot be observed by persons not participating in the search, or

25 whether the strip and body cavity searches are conducted in areas where they may be

26 observed by persons not participating in the searches; and (3) Whether the strip and/or

27 body cavity searches are conducted in an unsanitary area, infested with bacteria such as

28 MRSA and other communicable diseases.

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 7 of 14

1

23. In accordance with F.R. Civ. P. Rule 23(a), there are questions of law common

2 to the class. Plaintiff is informed and believes and thereon alleges that the common

3 questions of law include but are not limited to the following: (1) Whether the KCSD may

4 indiscriminately conduct strip and/or body cavity searches of inmates without there being

5 any reasonable suspicion, based on specific or articulable facts, to believe any particular

6 inmate has concealed drug(s), weapon(s) and/or any contraband on their persons or in their

7 body cavities; (2) Whether the KCSD may conduct strip and/or body cavity searches of

8 inmates in open areas where they may be observed by persons not participating in the

9 searches; (3) Whether KCSD’s policy of subjecting persons to strip and/or body cavity

10 searches violates California Penal Code § 4030; (4) Whether KCSD’s policy of subjecting

11
persons to strip and/or body cavity searches in an area which is not an “area of privacy”
12
violates California Penal Code § 4030(m); (5) Whether the conduct described above
13
violates the Fourth and/or Fourteenth Amendments, and/or California Constitution Article
14
I, sections 1, 7, and/or 13; (6) Whether the conduct described above constitutes a policy
15
or custom of the defendants; (7) Whether any individual defendant is entitled to qualified
16
immunity on the federal claims, or state law immunity on the state law claims, for the
17
practices complained of herein; and (8) Whether determination of damages suffered by a
18

19 statistically representative sample of the class provides the basis for determination of all

20 class members’damages except those who opt out.

21

C. Typicality

22

24. In accordance with F.R. Civ. P. Rule 23(a), the claims of the representative

23 Plaintiff are typical of the class. Plaintiff was in KCSD custody when he was subjected to

24 at least one strip and/or visual body cavity searches without there being any reasonable

25 suspicion, based on specific or articulable facts, to believe that plaintiff and class members

26 had concealed drug(s), weapon(s) and/or any contraband in their body cavities; plaintiff

27 was subjected to searches in open areas where they were observed by other prisoners and

28 persons not involved in the search, possibly including sometimes members of the opposite

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 8 of 14

1 sex; plaintiff was searched and forced to stand naked in unsanitary and bacteria infested

2 areas.

3

25. Thus, plaintiff has the same interests and have suffered the same type of damages

4 as the class members. Plaintiff’s claims are based upon the same or similar legal theories

5 as the claims of the class members. Each class member suffered actual damages as a result

6 of being subjected to a strip and/or body cavity search. The actual damages suffered by

7 plaintiff are similar in type and amount to the actual damages suffered by each class

8 member.

9

26. In accordance with F.R. Civ. P. Rule 23(a), the representative plaintiff will fairly

10 and adequately protect the interests of the class. The interests of the representative plaintiff

11
are consistent with and not antagonistic to the interests of the class.
12
D. Maintenance and Superiority
13
27. In accordance with Fed.R.Civ.P. Rule 23(b)(1)(A), prosecutions of separate
14
actions by individual members of the class would create a risk that inconsistent or varying
15
adjudications with respect to individual members of the class would establish incompatible
16
standards of conduct for the parties opposing the class.
17
28. In accordance with Fed.R.Civ.P. Rule 23(b)(1)(B), prosecutions of separate
18

19 actions by individual members of the class would create a risk of adjudications with respect

20 to individual members of the class which would, as a practical matter, substantially impair

21 or impede the interests of the other members of the class to protect their interests.

22

29. In accordance with Fed.R.Civ.P. Rule 23(b)(2), plaintiff is informed and believes

23 and thereon alleges that the defendants have acted on grounds generally applicable to the

24 class.

25

30. In accordance with Fed.R.Civ.P. Rule 23(b)(3), the questions of law or fact

26 common to the members of the class predominate over any questions affecting only

27 individual members, and this class action is superior to other available methods for the fair

28 and efficient adjudication of the controversy between the parties. Plaintiff is informed and

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 9 of 14

1 believes and thereon alleges that the interest of class members in individually controlling

2 the prosecution of a separate action is low, in that most class members would be unable to

3 individually prosecute any action at all. Plaintiff is informed and believes and thereon

4 alleges that the amounts at stake for individuals are such that separate suits would be

5 impracticable in that most members of the class will not be able to find counsel to represent

6 them. Plaintiff is informed and believes and thereon alleges that it is desirable to

7 concentrate all litigation in one forum because all of the claims arise in the same location,

8 i.e., the County of Kern, and it will promote judicial efficiency to resolve the common

9 questions of law and fact in one forum, rather than in multiple courts.

10

31. Plaintiff does not know the identities of the class members. Plaintiff is informed

11
and believe and thereon allege that the identities of the class members are ascertainable
12
from KCSD records, in particular the KCSD computer system used to track and identify
13
KCSD inmates. Plaintiff is informed and believes and thereon alleges that the computer
14
system reflects the identities, including addresses and telephone numbers, of the persons
15
who have been held in custody by KCSD; when inmates were arrested and booked, taken
16
to court, returned from court; why inmates were released; and when inmates were released.
17
32. Plaintiff knows of no difficulty that will be encountered in the management of
18

19 this litigation that would preclude its maintenance as a class action. The class action is

20 superior to any other available means to resolve the issues raised on behalf of the class.

21 The class action will be manageable because so many different records systems exist from

22 which to ascertain the members of the class. Liability can be determined on a class-wide

23 basis. Damages can be determined on a class-wide basis using a damages matrix set by a

24 jury, or by trying the damages of a statistically valid sample of the class to a jury and

25 extrapolating those damages to the class as a whole.

26

33. In accordance with Fed.R.Civ.P. Rule 23(b)(3), class members must be furnished

27 with the best notice practicable under the circumstances, including individual notice to all

28 members who can be identified through reasonable effort. Plaintiff is informed and believes

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 10 of 14

1 that KCSD computer records contain a last known address for class members. Plaintiff

2 contemplates that individual notice be given to class members at such last known address

3 by first class mail. Plaintiff contemplates that the notice inform class members of the

4 following:

5

A. The pendency of the class action, and the issues common to the class;

6

B. The nature of the action;

7

C. Their right to ‘opt out’of the action within a given time, in which event

8

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

9

D. Their right, if they do not ‘opt out,’to be represented by their own counsel

10

and enter an appearance in the case; otherwise, they will be represented by the

11
named plaintiff and his counsel; and
12
E. Their right, if they do not ‘opt out,’to share in any recovery in favor of the
13
class, and conversely to be bound by any judgment on the common issues, adverse
14
to the class.
15
34. Plaintiff restates and incorporates by reference each of the forgoing paragraphs
16
in each of the following causes of action as if each paragraph was fully set forth therein.
17
COUNT ONE - 42 U.S.C. § 1983
18

19

(All Defendants)

20

35. In subjecting plaintiff and class members to the unnecessary, demeaning, and

21 outrageous intrusive strip and body cavity search, defendants, and each of them, violated

22 plaintiff’s and class members’ rights to be secure in their persons against unreasonable

23 searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the

24 United States Constitution. Therefore, plaintiff and class members are entitled to bring suit

25 and recover damages pursuant to 42 U.S.C. § 1983.

26

COUNT TWO - EQUAL PROTECTION

27

(All Defendants)

28

36. The unnecessary, demeaning, and outrageous intrusive strip and body cavity

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 11 of 14

1 search deprived plaintiff and class members of the protections afforded by provisions of the

2 14th Amendment Equal Protection guarantees. Therefore, plaintiff and class members are

3 entitled to bring suit and recover damages pursuant to 42 U.S.C. § 1983.

4

COUNT THREE - Cal. Const., Art. I §§ 7, 13

5

(All Defendants)

6

37. The unnecessary, demeaning, outrageous, and intrusive strip and body cavity

7 search to which plaintiff and class members were subjected violated plaintiff’s rights not
8 to be denied equal protection of the law, as guaranteed by Article I, § 7 of the California
9 Constitution; and to be secure in their persons against unreasonable searches and seizures,
10 as guaranteed by Article I, § 13 of the California Constitution.
11
COUNT FOUR - Cal. Civ. Code § 52.1
12
(All Defendants)
13
38. The unnecessary, demeaning, and outrageous intrusive strip and/or visual body
14
cavities were accomplished via coercion and/or threats of coercion.
15
39. The unnecessary, demeaning, and outrageous intrusive strip and visual body
16
cavity searches deprived plaintiff and the class he represent of the protections afforded by
17
provisions of federal constitutional and state constitutional and statutory law, including but
18
19 not limited to rights protected under the Fourth, Eighth and Fourteenth Amendments to the
20 United States Constitution; Article I, §§ 1, 7, 13, and 17, of the California state
21 constitution, and California Penal Code § 4030. Therefore, plaintiff and the class are

22 entitled to bring suit and recover damages pursuant to Cal. Civ. Code § 52.1(b).

23

40. As a direct and proximate cause of the aforementioned acts, plaintiff and class

24 members were damaged in an amount to be proven at trial but in any event not less than

25 $4,000 per violation pursuant to the provisions of Civil Code § 52(b).

26

41. The aforementioned acts of defendants directly and proximately caused plaintiff

27 to be deprived of her California constitutional rights as stated above, thereby entitling

28 plaintiff and class members to recover damages proximately caused by defendants’

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 12 of 14

1 wrongful acts.

2

COUNT FIVE Violation of Statutory Duties

3

(Penal Code § 4030)

4

(Against Defendants County and KCSD Only)

5

42.The unnecessary, demeaning, outrageous, and intrusive strip and body cavity

6 searches, to which plaintiff and the claim members were subjected by defendants, violated

7 plaintiff’s and the class members’ state-law protections guaranteed by California Penal

8 Code § 4030.

9

43. Any violation of a California statute is mandatory and prohibitory.

10

44. The aforementioned acts of defendants directly and proximately caused the

11
plaintiff and the class members to be deprived of their rights as stated above, thereby
12
entitling plaintiff and class members to recover damages proximately caused by defendants’
13
wrongful acts, including statutory damages under Penal Code § 4030.
14
COUNT SIX- Violation of Mandatory Duties
15
(Against Defendants County and KCSD)
16
45. The Fourth, Eighth and Fourteenth Amendments to the United States
17
Constitution; Article I, §§ 1, 7, 13, and 17, of the California state constitution; California
18

19 Penal Code § 4030; and California Civil Code §52.1 are enactments. Enactments form the

20 basis of a mandatory duty under California Government Code §815.6.

21

46. These constitutional provisions and statutes apply to all members of the general

22 public, including Plaintiff, and were all designed to prevent the kind of injuries alleged

23 herein.

24

47. Defendants did not exercise reasonable diligence in discharging their duty to

25 refrain from violating the constitutional rights of plaintiff and class members.

26

48. As a direct and proximate cause of the aforementioned acts of defendants,

27 plaintiff and class members were damaged in amounts to be determined at trial.

28 ///

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 13 of 14

1 VII. PRAYER

2

WHEREFORE, plaintiff, on behalf of himself and class members he represents,

3 request damages against each defendant as follows:

4

49. General and special damages according to proof;

5

50. As against the individual defendants only, punitive damages according to proof;

6

51. In addition to actual damages, statutory damages as allowed by law, including

7 Penal Code § 4030 and treble damages under California Civil Code §§ 52 and 52.1;

8

52. Attorneys’ fees and costs under 42 U.S.C. § 1988; California Civil Code §§

9 52(b)(3), 52.1(h); California Code of Civil Procedure § 1021.5, and whatever other statute

10 or law may be applicable;

11
53. The costs of this suit and such other relief as is just and proper.

12
DATED: March 27, 2007

13

ROBERT MANN

14

DONALD W. COOK

Attorneys for Plaintiff

15

16

By______________________________

17

Donald W. Cook

18

19

20

21

22

23

24

25

26

27

28

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Case 1:07-cv-00474-DLB Document 1 Filed 03/27/07 Page 14 of 14

1

DEMAND FOR JURY TRIAL

2

Plaintiff, on behalf of himself individually and on behalf of the class he represents,

3 demands a jury trial.

4 DATED: March 27, 2007
5 6 7

ROBERT MANN DONALD W. COOK Attorneys for Plaintiff

8

9

By______________________________

10

Donald W. Cook

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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00019046.WPD

 
 Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 1 of 17

1 Barrett S. Litt, SBN 45527

Paul J. Estuar, SBN 167764

2 pestuar@littlaw.com

Litt, Estuar, Harrison & Kitson LLP

3 1055 Wilshire Boulevard, Suite 1880

4

Los Angeles, California 90017 Telephone: (213) 386-3114

5 Facsimile: (213) 380-4585

6

Robert Mann, SBN 48293 Donald W. Cook, SBN 116666

7 doncook@earthlink.net

Attorneys at Law

8 3435 Wilshire Boulevard, Suite 2900

Los Angeles, California 90010

9 Telephone: (213) 252-9444

Facsimile: (213) 252-0091

10

11 Attorneys for Plaintiffs

12
UNITED STATES DISTRICT COURT
13

14

EASTERN DISTRICT OF CALIFORNIA

15 MARSIAL LOPEZ, SANDRA

Case No. 1:07 CV-00474 LJO-DLB

CHAVEZ, THEODORE MEDINA, 16 each individually, and as class

FIRST AMENDED CLASS

17 representatives,

ACTION COMPLAINT FOR DAMAGES

18

Plaintiffs,

1. 42 U.S.C. §1983

19 vs.

2. Equal Protection

3. Cal. Const. Art. I, §§7, 13

20 SHERIFF DONNY YOUNGBLOOD,

4. Cal. Civ. Code §52.1

individually and in his official capacity;

5. Statutory Duties

21 FORMER SHERIFF MACK

6. Mandatory Duties

WIMBISH, in his individual capacity; 22 COUNTY OF KERN, a governmental

23

entity; KERN COUNTY SHERIFF’S DEPARTMENT, a California public

DEMAND FOR JURY TRIAL

24 entity; and DOES 1 through 100,

25

Defendants.

26

27

28

1

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 2 of 17

1 I. INTRODUCTION

2 1. This action concerns the manner in which prisoners are searched in Kern

3 County’s jails, alleging, inter alia, violations of the Fourth, Eighth and Fourteenth

4 Amendments of the United States Constitution, and their corollaries under the

5 California Constitution.
6 2. The gravamen of this complaint concerns the privacy rights of prisoners
7 who are routinely subjected to strip and/or visual body cavity searches in violation
8 of the constitutions and laws of the United States and the State of California.
9
II. JURISDICTION AND VENUE
10
3. Plaintiffs present federal claims for relief under 42 U.S.C. §1983.
11
Accordingly, federal jurisdiction is conferred upon this Court by 28 U.S.C.
12
§§1331 and 1343. Plaintiffs’ state law claims are so related to the federal law
13
claims that they form part of the same case or controversy. Accordingly,
14
supplemental jurisdiction over the state law claims is conferred upon this Court by
15
28 U.S.C. §1367.
16
17 4. Plaintiffs’ claims arise out of acts of the Kern County Sheriff’s Department
18 in the County of Kern, State of California, in and about Bakersfield, California.
19 Accordingly, venue is proper within the Eastern District of California.

20 III. PARTIES

21

Plaintiffs

22 5. Plaintiff Marsial Lopez, a male, is and was at all times relevant hereto, a

23 resident of the County of Kern, State of California.

24 6. Plaintiff Sandra Chavez, a female, is and was at all times relevant hereto, a

25 resident of the County of Kern, State of California.

26 7. Plaintiff Theodore Medina, a male, is and was at all times relevant hereto, a

27 resident of the County of Kern, State of California.
28

2

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 3 of 17

1

Defendants

2 8. Defendant County of Kern (“County”) is a public entity organized and

3 existing under the laws of the State of California. Defendant Kern County
4 Sheriff’s Department (“KCSD”) is a public entity within the meaning of California
5 law, and is a County agency. These defendants are sued in their own right for a
6 County and/or KCSD policy, practice or custom which caused plaintiffs’ injuries 7 in violation of one or more federal constitutional guarantees, and on plaintiffs’ 8 state law claims based on respondeat superior, under California Government Code
9
§815.2 and mandatory duties under California Government Code §815.6.
10
9. Defendant Donny Youngblood (“Youngblood”) is the Sheriff of Kern
11
County, and is the policy maker for the KCSD. He is sued in his official and
12
individual capacities.
13
10. Defendant Mack Wimbish (“Wimbish”) is the former sheriff for Kern
14
County, and is Youngblood’s predecessor. Plaintiffs sue Wimbish in his individual
15
capacity only.
16
17 11. Plaintiffs are ignorant of the true names and capacities of defendants sued 18 herein as DOES 1 through 100, inclusive, and therefore sues these defendants by
19 such fictitious names. Plaintiffs will give notice of this complaint, and of one of
20 more DOES’ true names and capacities, when ascertained. Plaintiffs are informed
21 and believe and based thereon allege, that defendants DOES 1 through 100 are
22 responsible in some manner for the damages and injuries hereinafter complained

23 of.

24 12. DOES 1-50 (hereinafter collectively referred to as “KCSD Supervisory

25 defendants”) were and are now responsible for the KCSD jails and, among other

26 things, are responsible for the training, supervision, control, assignment and

27 discipline of the sworn and civilian personnel of the KCSD and County who work 28 in, operate, administer and manage the jails, and for the formulation, promulgation,

3

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 4 of 17

1 adoption, application, administration and enforcement of the policies, rules,

2 regulations and practices of the KCSD jails.

3 13. Upon information and belief, plaintiffs further allege that, at all times

4 relevant herein, the KCSD Supervisory defendants participated in, approved,

5 and/or ratified the unconstitutional or illegal acts complained of herein that

6 occurred within KCSD jails.

7 14. DOES 51-100 were and are now KCSD employees and/or agents

8 responsible for the implementation of the policies, rules, regulations and practices

9
of the KCSD jails, and include KCSD employees who actually implemented and
10
enforced the unlawful policies and practices complained of herein.
11
15. Plaintiffs are informed and believe, and thereupon allege that, at all times
12
relevant herein, the individual defendants, and each of them, were the agents,
13
servants and employees of their respective employers (defendants KCSD, County)
14
and were acting at all times within the scope of their agency and employment, and
15
with the knowledge and consent of their principals and employers. At all times
16

17 herein, defendants, and each of them, were acting under the color of state law.

18 IV. CLAIMS OF CLASS REPRESENTATIVES

19

Plaintiff Marsial Lopez

20 16. On or about late June 2005, plaintiff Lopez surrendered himself to out-of-

21 state law enforcement officers upon learning that there was a Kern County felony

22 warrant for his arrest for charges filed in the Kern County Superior Court.

23 Thereafter, Lopez was incarcerated in the Kern County jails, commencing late June

24 2005 and continuing until the first week of November, 2006.

25 17. During his incarceration in the Kern County jails, KCSD deputies

26 transported Lopez to and from the Kern County Superior Court for appearances on

27 plaintiffs’ then pending criminal case. Whenever Lopez was transported between 28 jail facilities, and when he was returned to jail from superior court, he was

4

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 5 of 17

1 subjected to intrusive visual body cavity/strip searches. That is, in the presence of

2 others not necessary for the searches and without any privacy, Lopez was forced to

3 remove all of his clothing, expose his body cavities in the presence of other
4 persons, in unsanitary conditions.
5 18. On or about November 6, 2006, Lopez, still incarcerated in the Kern County
6 jail and awaiting a retrial (in his first trial the jury deadlocked 11-1, in favor of 7 acquittal) was taken before the Kern County Superior Court. At that time the 8 prosecuting authority dismissed all criminal charges against him. The prosecutor
9
dismissed the charges because the prosecutor’s office finally decided to test DNA
10
found on clothing recovered from the crime scene. The DNA test results excluded
11
him as the perpetrator of the charged crimes.
12
19. After the charges were dismissed, the superior court ordered Lopez’ release.
13
At that point KCSD deputies returned Lopez to the Kern County jail for the sole
14
purpose of processing his release from custody. Upon arrival at the jail, Lopez was
15
subjected to an illegal and intrusive visual body cavity/strip search, in unsanitary
16
17 conditions, without privacy, and without reasonable suspicion that he possessed 18 contraband or weapon(s). The search took place in the presence of persons not
19 necessary for the search, forcing Lopez to expose his body cavities in the presence
20 of other persons, without privacy, and in unsanitary conditions.
21 20. Lopez has timely filed a claim under Government Code §910 with the
22 County of Kern, both on behalf of himself and other persons similarly situated.

23

Plaintiff Sandra Chavez

24 21. On or about February 17, 2007, plaintiff Chavez was arrested by KCSD

25 personnel, placed in KCSD custody after arrest, and transported to a Kern County

26 jail facility. Chavez was arrested on a charge related to fighting in public.

27 22. Upon her arrival at the jail, KCSD personnel subjected Chavez to an 28 intrusive strip and visual body cavity search. During the search KCSD employees

5

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 6 of 17
1 required Chavez to remove all of her clothing, and to bend and squat, exposing her
2 anus and vagina. Chavez was searched in a room along with approximately four or 3 five other women. At the time of the search, KCSD personnel did not have 4 probable cause or reasonable suspicion that Chavez or the other prisoners were in 5 the possession of contraband, or any other substance that would justify or 6 necessitate the strip and/or body cavity search. A male officer, though not 7 participating in the strip search, was within view of Chavez during the search. 8 23. After being booked and strip searched, Chavez was given a court date and
9
released from custody. She was not arraigned until two weeks later, where she was
10
sentenced to probation and a fine.
11
24. Chavez has timely filed a claim under Government Code §910 with the
12
County of Kern, both on behalf of herself and other persons similarly situated.
13
Plaintiff Theodore Medina
14
25. On or about June 7, 2006, plaintiff Medina was arrested by KCSD
15
personnel, placed in KCSD custody after arrest, and transported to a Kern County
16
17 jail facility. Medina was arrested on a charge of public intoxication. 18 26. Upon arrival at the jail, KCSD personnel subjected Medina to an intrusive 19 strip and visual body cavity search. During the search KCSD employees required 20 Medina to remove all of his clothing, and to bend and squat, exposing his anus. 21 Medina was searched in a room along with approximately four or five other 22 arrestees. At the time of the search, KCSD personnel did not have probable cause
23 or reasonable suspicion that Medina or the other arrestees were in the possession of
24 contraband, or any other substance that would justify or necessitate the strip and/or
25 body cavity search. The strip and visual body cavity search described herein
26 occurred before Medina was arraigned. 27 27. Within two years from the filing of this complaint, Medina was also arrested 28 on a charge of spousal abuse, placed in KCSD custody after arrest, and transported
6

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 7 of 17
1 to a Kern County jail facility. While being booked KCSD personnel subjected
2 Medina to an intrusive strip and visual body cavity search, in the presence of others 3 not involved in his search, and in unsanitary conditions. After spending 17 days in 4 a Kern County jail facility, Medina appeared in court, was sentenced to time served 5 and ordered released by the judge. After the order of release, Medina was 6 transferred from court to jail and, as a routine part of out-processing, was subjected 7 to an intrusive strip search, in the presence of others not involved in his search, and 8 in unsanitary conditions. At the time of the aforementioned searches, KCSD
9
personnel did not have probable cause or reasonable suspicion that Medina was in
10
possession of contraband, or any other substance that would justify or necessitate
11
the strip and/or visual body cavity search.
12
V. CLASS ACTION ALLEGATIONS
13
28. Plaintiffs bring this action on their own behalf, and on behalf of a class of all
14
other persons similarly situated, pursuant to Rule 23 of the Federal Rules of Civil
15
Procedure. The class is defined as those persons who, in the two years preceding
16
17 the filing of this action, and up until the date of class certification, or such other 18 date as the Court may set, were forced to undergo unlawful strip and/or visual body 19 cavity searches in Kern County’s jails which are operated, maintained and under 20 the control of the County, the KCSD and the Supervisory defendants. 21 29. On information and belief, plaintiffs allege the strip and/or visual body 22 cavity searches to which they and class members were subjected, were done
23 pursuant to defendants’ policy and practice to indiscriminately search all or a large
24 number of persons being processed into the jail without regard to: a) The nature of
25 their offense or criminal history; b) Whether they are under an order of release or
26 not; c) Whether they have had contact with any persons from outside the County 27 jail system who could reasonably be believed to be a potential source of 28 contraband or weapons; d) Whether there is cause of any kind to believe they are a
7

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 8 of 17

1 potential source of contraband or weapons; e) Whether there is any other

2 articulable justification for defendants’ indiscriminate strip and body search policy;

3 or f) Whether they are “prearraignment detainees,” as that term is used in
4 California Penal Code §4030(b).
5 30. On information and belief, plaintiffs allege that defendants have a policy of
6 not limiting the persons who can see or hear or observe all or part of the strip and 7 body cavity searches to those who are necessary to the procedure. Thus, other 8 inmates, members of the opposite six, dispensable jail personnel and possibly
9
others are able to see and/or hear some or all of the searches described below.
10
Specifically, class members are required to submit to strip and/or body cavity
11
searches during which other people, who are not participating in the search and
12
possibly are of the opposite sex, including jail staff and other inmates, are able to
13
observe the search and the class members’ naked bodies. In many instances, class
14
members are forced to touch each other’s bodies during the searches.
15
31. On information and belief, plaintiffs allege that defendants will continue
16
17 their aforementioned policy and practice of unlawful strip and/or visual body 18 cavity searches unless enjoined and restrained by the court. Without injunctive
19 relief applicable to the class as a whole, the class members will suffer irreparable
20 harm for which there is no adequate remedy at law in that their constitutional and
21 statutory rights will be systematically violated.
22 VI. RULE 23 PREREQUISITES

23

A. Numerosity

24 32. In accordance with F.R.Civ. P. Rule 23(a), the members of the class are so

25 numerous that joinder of all members is impracticable. Plaintiffs do not know the

26 exact number of class members. Plaintiffs are informed and believe and thereon

27 allege that there are more than 50 prisoners per day who are subjected to strip 28 and/or body cavity searches as a result of defendants’ policies and practices of

8

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 9 of 17

1 indiscriminately subjecting prisoners to strip and body cavity searches. Plaintiffs

2 are informed and believe and thereon allege that the number of persons in the

3 proposed class is in the thousands.

4

B. Common Issues of Fact or Law

5 33. In accordance with F.R. Civ. P. Rule 23(a), there are questions of fact
6 common to the class. Plaintiffs are informed and believe and thereon allege that the
7 common questions of fact include, but are not limited to the following: (1)
8 Whether the KCSD routinely subjects all prisoners to strip and/or body cavity
9
searches without there being any reasonable suspicion, based on specific or
10
articulable facts, to believe any particular inmate has concealed drug(s), weapon(s)
11
and/or any contraband on their persons or in their body cavities; (2) Whether the
12
strip and/or body cavity searches are conducted in an area of privacy so that the
13
search cannot be observed by persons not participating in the search, or whether
14
the strip and body cavity searches are conducted in areas where they may be
15
observed by persons not participating in the searches; and (3) Whether the strip
16
17 and/or body cavity searches are conducted in an unsanitary area, infested with
18 bacteria such as MRSA and other communicable diseases.
19 34. In accordance with F.R. Civ. P. Rule 23(a), there are questions of law

20 common to the class. Plaintiffs are informed and believe and thereon allege that

21 the common questions of law include but are not limited to the following: (1)

22 Whether the KCSD may indiscriminately conduct strip and/or body cavity searches

23 of inmates without there being any reasonable suspicion, based on specific or

24 articulable facts, to believe any particular inmate has concealed drug(s), weapon(s)

25 and/or any contraband on their persons or in their body cavities; (2) Whether the

26 KCSD may conduct strip and/or body cavity searches of inmates in open areas

27 where they may be observed by persons not participating in the searches; (3) 28 Whether KCSD’s policy of subjecting persons to strip and/or body cavity searches

9

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 10 of 17
1 violates California Penal Code §4030; (4) Whether KCSD’s policy of subjecting
2 persons to strip and/or body cavity searches in an area which is not an “area of 3 privacy” violates California Penal Code §4030(m); (5) Whether the conduct 4 described above violates the Fourth and/or Fourteenth Amendments, and/or 5 California Constitution Article I, §§1, 7, and/or 13; (6) Whether the conduct 6 described above constitutes a policy or custom of the defendants; (7) Whether any 7 individual defendant is entitled to qualified immunity on the federal claims, or state 8 law immunity on the state law claims, for the practices complained of herein; and
9
(8) Whether determination of damages suffered by a statistically representative
10
sample of the class provides the basis for determination of all class members’
11
damages except those who opt out.
12
C. Typicality
13
35. In accordance with F.R. Civ. P. Rule 23(a), the claims of the representative
14
Plaintiffs are typical of the class. Plaintiffs were in KCSD custody when he was
15
subjected to at least one strip and/or visual body cavity searches without there
16
17 being any reasonable suspicion, based on specific or articulable facts, to believe 18 that plaintiffs and class members had concealed drug(s), weapon(s) and/or any 19 contraband in their body cavities; plaintiffs were subjected to searches in open 20 areas where they were observed by other prisoners and persons not involved in the 21 search, possibly including sometimes members of the opposite sex; plaintiffs were 22 searched and forced to stand naked in unsanitary and bacteria infested areas.
23 36. Thus, plaintiffs have the same interests and have suffered the same type of
24 damages as the class members. Plaintiffs’ claims are based upon the same or
25 similar legal theories as the claims of the class members. Each class member
26 suffered actual damages as a result of being subjected to a strip and/or body cavity 27 search. The actual damages suffered by plaintiffs are similar in type and amount to 28 the actual damages suffered by each class member.
10

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 11 of 17

1 37. In accordance with F.R. Civ. P. Rule 23(a), the representative plaintiffs will

2 fairly and adequately protect the interests of the class. The interests of the

3 representative plaintiffs are consistent with and not antagonistic to the interests of

4 the class.

5

D. Maintenance and Superiority

6 38. In accordance with Fed.R.Civ.P. Rule 23(b)(1)(A), prosecutions of separate

7 actions by individual members of the class would create a risk that inconsistent or

8 varying adjudications with respect to individual members of the class would

9
establish incompatible standards of conduct for the parties opposing the class.
10
39. In accordance with Fed.R.Civ.P. Rule 23(b)(1)(B), prosecutions of separate
11
actions by individual members of the class would create a risk of adjudications
12
with respect to individual members of the class which would, as a practical matter,
13
substantially impair or impede the interests of the other members of the class to
14
protect their interests.
15
40. In accordance with Fed.R.Civ.P. Rule 23(b)(2), plaintiffs are informed and
16

17 believe and thereon allege that the defendants have acted on grounds generally

18 applicable to the class.

19 41. In accordance with Fed.R.Civ.P. Rule 23(b)(3), the questions of law or fact

20 common to the members of the class predominate over any questions affecting

21 only individual members, and this class action is superior to other available

22 methods for the fair and efficient adjudication of the controversy between the

23 parties. Plaintiffs are informed and believe and thereon allege that the interest of

24 class members in individually controlling the prosecution of a separate action is

25 low, in that most class members would be unable to individually prosecute any

26 action at all. Plaintiffs are informed and believe and thereon allege that the

27 amounts at stake for individuals are such that separate suits would be impracticable 28 in that most members of the class will not be able to find counsel to represent

11

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 12 of 17
1 them. Plaintiffs are informed and believe and thereon allege that it is desirable to
2 concentrate all litigation in one forum because all of the claims arise in the same 3 location, i.e., the County of Kern, and it will promote judicial efficiency to resolve 4 the common questions of law and fact in one forum, rather than in multiple courts. 5 42. Plaintiffs do not know the identities of the class members. Plaintiffs are 6 informed and believe and thereon allege that the identities of the class members are 7 ascertainable from KCSD records, in particular the KCSD computer system used 8 to track and identify KCSD inmates. Plaintiffs are informed and believe and
9
thereon allege that the computer system reflects the identities, including addresses
10
and telephone numbers, of the persons who have been held in custody by KCSD;
11
when inmates were arrested and booked, taken to court, returned from court; why
12
inmates were released; and when inmates were released.
13
43. Plaintiffs know of no difficulty that will be encountered in the management
14
of this litigation that would preclude its maintenance as a class action. The class
15
action is superior to any other available means to resolve the issues raised on
16
17 behalf of the class. The class action will be manageable because so many different 18 records systems exist from which to ascertain the members of the class. Liability 19 can be determined on a class-wide basis. Damages can be determined on a class20 wide basis using a damages matrix set by a jury, or by trying the damages of a 21 statistically valid sample of the class to a jury and extrapolating those damages to 22 the class as a whole.
23 44. In accordance with Fed.R.Civ.P. Rule 23(b)(3), class members must be
24 furnished with the best notice practicable under the circumstances, including
25 individual notice to all members who can be identified through reasonable effort.
26 Plaintiffs are informed and believe that KCSD computer records contain a last 27 known address for class members. Plaintiffs contemplate that individual notice be 28 given to class members at such last known address by first class mail. Plaintiffs
12

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 13 of 17

1 contemplate that the notice inform class members of the following:

2

a. The pendency of the class action, and the issues common to the class;

3

b. The nature of the action;

4

c. Their right to ‘opt out’ of the action within a given time, in which

5

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

action;

6

7

d. Their right, if they do not ‘opt out,’ to be represented by their own

8

counsel and enter an appearance in the case; otherwise, they will be represented by the named plaintiffs and his counsel; and

9

10

e. Their right, if they do not ‘opt out,’ to share in any recovery in favor

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

11

common issues, adverse to the class.

12
45. Plaintiffs restate and incorporate by reference each of the foregoing
13
paragraphs in each of the following causes of action as if each paragraph was fully
14
set forth therein.
15

16

COUNT ONE - 42 U.S.C. §1983

17

(All Defendants)

18 46. In subjecting plaintiffs and class members to the unnecessary, demeaning,

19 outrageous and intrusive strip and/or body cavity searches, defendants, and each of

20 them, violated plaintiffs’ and class members’ rights to be secure in their persons

21 against unreasonable searches and seizures as guaranteed by the Fourth and

22 Fourteenth Amendments to the United States Constitution. Therefore, plaintiffs

23 and class members are entitled to bring suit and recover damages pursuant to 42

24 U.S.C. §1983.

25

COUNT TWO - EQUAL PROTECTION

26

(All Defendants)

27 47. The unnecessary, demeaning, outrageous and intrusive strip and/or body 28 cavity searches deprived plaintiffs and class members of the protections afforded

13

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 14 of 17

1 by provisions of the 14th Amendment Equal Protection guarantees. Therefore,

2 plaintiffs and class members are entitled to bring suit and recover damages

3 pursuant to 42 U.S.C. §1983.

4

COUNT THREE - Cal. Const., Art. I §§7, 13

5

(All Defendants)

6 48. The unnecessary, demeaning, outrageous and intrusive strip and/or body
7 cavity searches to which plaintiffs and class members were subjected violated
8 plaintiffs’ rights not to be denied equal protection of the law, as guaranteed by
9
Article I, § 7 of the California Constitution; and to be secure in their persons
10
against unreasonable searches and seizures, as guaranteed by Article I, § 13 of the
11
California Constitution.
12
COUNT FOUR - Cal. Civ. Code §52.1
13
(All Defendants)
14
49. The unnecessary, demeaning, outrageous and intrusive strip and/or visual
15
body cavity searches were accomplished via threats, intimidation and/or coercion.
16
17 50. The unnecessary, demeaning, outrageous and intrusive strip and/or visual
18 body cavity searches deprived plaintiffs and the class they represent of the
19 protections afforded by provisions of federal constitutional and state constitutional

20 and statutory law, including but not limited to rights protected under the Fourth,

21 Eighth and Fourteenth Amendments to the United States Constitution; Article I,

22 §§1, 7, 13, and 17, of the California state constitution, and California Penal Code

23 §4030. Therefore, plaintiffs and the class are entitled to bring suit and recover

24 damages pursuant to Cal. Civ. Code §52.1(b).

25 51. As a direct and proximate cause of the aforementioned acts, plaintiffs and

26 class members were damaged in an amount to be proven at trial but in any event

27 not less than $4,000 per violation pursuant to the provisions of Civil Code §52(b).

28

14

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 15 of 17

1 52. The aforementioned acts of defendants directly and proximately caused

2 plaintiffs to be deprived of their California constitutional rights as stated above,

3 thereby entitling plaintiffs and class members to recover damages proximately

4 caused by defendants’ wrongful acts.

5

COUNT FIVE - Violation of Statutory Duties, Penal Code §4030

6

(Against All Defendants)

7 53. The unnecessary, demeaning, outrageous, and intrusive strip and/or body

8 cavity searches to which plaintiffs and the class members were subjected by

9
defendants, violated plaintiffs’ and the class members’ state-law protections
10
guaranteed by California Penal Code §4030 and equal protection guarantees.
11
54. Although by its terms Penal Code §4030 only applies to misdemeanor
12
arrests, there is no reason to establish different standards for how a strip is
13
conducted in order to maintain the arrestee’s privacy while allowing the strip
14
search based on whether arrestee is charged with a misdemeanor or a felony.
15
Accordingly, equal protection and due process of law under the Federal and
16

17 California Constitutions require that the manner of strip search protections

18 contained in Penal Code §4030 apply to felony arrestees as well as misdemeanor

19 arrestees.

20 55. Any violation of a California statute is mandatory and prohibitory.

21 56. The aforementioned acts of defendants directly and proximately caused the

22 plaintiffs and the class members to be deprived of their rights as stated above,

23 thereby entitling plaintiffs and class members to recover damages proximately

24 caused by defendants’ wrongful acts, including statutory damages under Penal

25 Code § 4030.

26

COUNT SIX- Violation of Mandatory Duties

27

(Against All Defendants)

28 57. The Fourth, Eighth and Fourteenth Amendments to the United States

15

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 16 of 17

1 Constitution; Article I, §§1, 7, 13, and 17, of the California state constitution;

2 California Penal Code §4030; and California Civil Code §52.1 are enactments.

3 Enactments form the basis of a mandatory duty under California Government Code

4 §815.6.

5 58. These constitutional provisions and statutes apply to all members of the

6 general public, including plaintiffs, and were all designed to prevent the kind of

7 injuries alleged herein.

8 59. Defendants did not exercise reasonable diligence in discharging their duty to

9
refrain from violating the constitutional rights of plaintiffs and class members.
10
60. As a direct and proximate cause of the aforementioned acts of defendants,
11
plaintiffs and class members were damaged in amounts to be determined at trial.
12
VII. PRAYER
13
WHEREFORE, plaintiffs, on behalf of themselves and the class members
14
they represent, request the following against each defendant as follows:
15
61. General and special damages according to proof;
16

17 62. Temporary, preliminary and permanent injunctive relief prohibiting

18

defendants from continuing to engage in the unlawful practices complained

19

of herein;

20 63. As against the individual defendants only, punitive damages according to

21

proof;

22 64. In addition to actual damages, statutory damages as allowed by law,

23

including Penal Code §4030 and Civil Code §§52 and 52.1;

24

25

26

27

28

16

Case 1:07-cv-00474-DLB Document 10 Filed 06/21/07 Page 17 of 17

1 65. Attorneys’ fees and costs under 42 U.S.C. §1988; California Civil Code

2

§§52(b)(3), 52.1(h); California Code of Civil Procedure §1021.5, and

3
4 66.
5

whatever other statute or law may be applicable; The costs of this suit and such other relief as is just and proper.

6 DATED: June 20, 2007
7

Litt, Estuar, Harrison & Kitson, LLP

8

9

By:_____/s/__________________

10

Paul J. Estuar

Attorneys for Plaintiffs

11

12

13

DEMAND FOR JURY TRIAL

14
Plaintiffs, on behalf of themselves individually and on behalf of the class
15

16 they represent, demand a jury trial.

17
DATED: June 20, 2007
18

Litt, Estuar, Harrison & Kitson, LLP

19

20

By:______/s/_________________

21

Paul J. Estuar

Attorneys for Plaintiffs
22

23

24

25

26

27

28

17

 
 Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 1 of 37

1 BARRETT S. LITT, SBN 45527

PAUL J. ESTUAR, SBN 167764

2 E-Mail: pestuar@littlaw.com

3

LITT, ESTUAR, HARRISON & KITSON, LLP 1055 Wilshire Boulevard, Suite 1880

4

Los Angeles, California 90017 Telephone: (213) 386-3114

5 Facsimile: (213) 380-4585

6 ROBERT MANN, SBN 48293

DONALD W. COOK, SBN 116666 7 E-Mail: doncook@earthlink.net

8

ATTORNEYS AT LAW 3435 Wilshire Blvd., Suite 2900

9 Los Angeles, CA 90010

Telephone: (213) 252-9444

10 Facsimile: (213) 252-0091

11 Attorneys for Plaintiffs

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14 MARSIAL LOPEZ, et al., each

15

individually, and as class representatives,

16

Plaintiffs,

17 vs.

18 SHERIFF DONNY YOUNGBLOOD,
19 et al.,

20

Defendants.

21

Case No. CV-F-07-0474 DLB
[Hon. Dennis L. Beck]
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION [FILED CONCURRENTLY WITH NOTICE OF MOTION, MOTION, DECLARATIONS, EXHIBITS]

22

DATE: AUGUST 29, 2008

TIME: 9:00 A.M.

23

CRTRM: 9

24

25

26

27

28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 2 of 37

1

TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES...........................................1 3 4 I. INTRODUCTION .............................................................................................1

5 II. COUNTY STRIP SEARCH POLICIES AND PRACTICES ...........................2

6

A. KCSD Strip Search Methodology..............................................................2 B. The Policy To Strip Search Those Returning From Court Entitled

7

to Release...................................................................................................2

8

C. The Policy Of Conducting Strip Searches En Masse ................................3

9 III. CLASS REPRESENTATIVES .........................................................................3

10

A. Plaintiff Marsial Lopez ..............................................................................4 B. Plaintiff Sandra Chávez..............................................................................5

11

C. Plaintiff Theodore Medina .........................................................................5

12 IV. CLASS DEFINITIONS .....................................................................................6

13

14

V.

GENERAL CLASS ACTION CONSIDERATIONS. ......................................7 A. Class Actions Are Particularly Suitable in Civil Rights Cases..................7

15

B. Presumptions Applicable to Motion for Class Certification......................7

16

C. Strip Search Damages Class Actions Have Routinely Been Certified by Federal Courts Around the Country .......................................8

17

18

VI. REQUIREMENTS UNDER FRCP 23(A). .....................................................10 A. Numerosity ...............................................................................................11

19

B. Commonality............................................................................................13

20

C. Typicality .................................................................................................14 D. Adequacy of Representation ....................................................................15

21

1. Class Representatives’ Interests Are Not Antagonistic To

22

The Interests Of The Class ...................................................................15 2. Counsel Are Well Qualified To Represent The Class..........................15

23 VII. REQUIREMENTS UNDER RULE 23(B)......................................................16

24

A. Rule 23(b)(1)’s Requirements Are Met. ..................................................16

25

B. Common Questions of Law or Fact Predominate....................................17 1. Common Questions of Law or Fact Predominate ...............................17

26

2. Once a Common Policy Or Law Is Established, the Burden

27

Shifts To The Defendants To Identify Exceptions..............................19

28

i

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 3 of 37

1

3. Predominance on a Single Issue is Enough to Satisfy 23(b)(3) ..............20

2

4. Damages Do Not Defeat Predominance in this Case. .............................21 a) Classifying Damages .....................................................................23

3

b) Bellwether Trials ...........................................................................24

4

c) Statutory Damages .........................................................................24 d) Statistical Methods of Determining Damages ...............................25

5

C. Manageability and the Role of Kern County’s Sheriff’s Database. ........25

6 VIII. CONCLUSION ...........................................................................................26 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 4 of 37

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3

4 Allapattah Services v. Exxon Corp.

5

333 F.3d 1248 (11th Cir. Fla. 2003) ................................................................ 21

6 Allaptatah Services v. Exxon

7

157 F.Supp.2d 1291 (S.D. FLA 2001)............................................................. 23

8 Anderson v. Cornejo

9

199 F.R.D. 228 (N.D.Ill.2000)......................................................................... 20

10 Bertulli v. Independent Association of Cont'l Pilots

11

242 F.3d 290 (5th Cir. 2001) ........................................................................... 21

12 Blackie v. Barrack

13

524 F.2d 891 (9th Cir. 1975) ......................................................................... 7, 8

14 Blake v. City of Los Angeles

15

595 F.2d 1367 (9th Cir. 1979) ........................................................................... 8

16 Blihovde v. St. Croix County, Wis.

17

219 F.R.D. 607 (W.D. Wis. 2003)............................................................... 9, 19

18 Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc.

19

113 F. Supp.2d 345 (E.D.N.Y. 2000) .............................................................. 25

20 Bullock v. Sheahan

21

225 F.R.D.227 (N.D. Ill. 2004).......................................................................... 9

22 Bynum v. District of Columbia

23

214 F.R.D. 27 (D.D.C. 2003)..................................................................... 17, 19

24 Bynum v. District of Columbia

25

217 F.R.D. 43 (D.D.C. 2003)............................................................................. 9

26 Calvin v. Sheriff of Will County

27

2004 WL 1125922 (N.D. Ill. 2004)................................................................ 9, 22

28

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Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 5 of 37

1 Califano v. Yamasaki

2

442 U.S. 682 (1979)......................................................................................... 13

3 Carnegie v. Household International , Inc.

4

376 F.3d 656 (7th Cir.2004) ...................................................................... 21, 22

5 Carroll-McCreary Co., Inc. v. New Jersey Steel Corp.

6

1981 WL 2030 (E.D.N.Y. 1981) ..................................................................... 22

7 Chang v. U.S.

8

217 F.R.D. 262 (D.D.C. 2003)......................................................................... 22

9 In re Chevron

10

109 F.3d 1016 (5th Cir. 1997) ......................................................................... 24

11 Cross v. National Trust Life Insurance Co.

12

553 F.2d 1026 (6th Cir.1977) .......................................................................... 12

13 Crown, Cork, & Seal Co. v. Parker

14

462 US 345 (1983)............................................................................................. 7

15 Cummings v. Connell

16

316 F.3d 886 (9th Cir. 2003) ............................................................................. 8

17 Cypress v. Newport News General & Nonsectarian Hospital Association 18 375 F.2d 648 (4th Cir.1967) ............................................................................... 12

19 Dellums v. Powell

20

566 F.2d 167 (D.C.Cir.1977) ............................................................................. 23

21 Doe v. Calumet City

22

128 F.R.D. 93 (N.D. Ill. 1989) ........................................................................... 10

23 Doe v. Calumet City, Illinois

24

754 F.Supp. 1211 (N.D.Ill. 1990)....................................................................... 19

25 Dornberger v. Metropolitan Life Insurance Company

26

182 F.R.D. 72 (S.D. N.Y. 1998)......................................................................... 18

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 6 of 37

1 Dukes v. Wal-Mart, Inc.

2

474 F.3d 1214 (9th Cir. 2007).............................................................................. 8

3 East Texas Motor Freight, Inc. v. Rodriguez

4

431 U.S. 395 (1977) ............................................................................................. 7

5 Eddleman v. Jefferson County, Ky.

6

96 F.3d 1448 (6th Cir. 1996) .............................................................................. 10

7 Eisen v. Carlisle & Jacquelin

8

417 U.S. 156 (1974) ............................................................................................. 2

9 Esplin v. Hirschi

10

402 F. 2d 94 (10th Cir. 1968) ............................................................................... 8

11 Equal Employment Opportunity Commission v. McDonnell Douglas Corp.

12

960 F.Supp. 203 (E.D.Mo.1996) ....................................................................... 22

13 Ford v. City of Boston

14

154 F. Supp. 2d 131 (D. Mass. 2001)................................................................. 10

15 Gary v. Sheahan

16

1999 WL 281347 (N.D. Ill. 1999)...................................................................... 10

17 General Telephone Co. of Southwest v. Falcon

18

457 U.S. 147 (1982) ....................................................................................... 7, 14

19 Gunnells v. Healthplan Services

20

348 F.3d 417 (4th Cir. 2003) .............................................................................. 21

21 Hanlon v. Chrysler Corp.

22

150 F.3d 1011 (9th Cir. 1998)...................................................................... 13, 15

23 Hanon v. Dataproducts Corp.

24

976 F. 2d 497 (9th Cir. 1992) ............................................................................. 14

25 Hassine v. Jeffes

26

846 F.2d 169 (3rd Cir. 1988).............................................................................. 14

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 7 of 37

1 Hervey v. City of Little Rock

2

787 F.2d 1223 (8th Cir.1986) ............................................................................. 20

3 Hilao v. Estate of Ferdinand Marcos

4

103 F. 3d 767 (9th Cir. 1996) ....................................................................... 14, 25

5 Horn v. Associated Wholesale Grocers, Inc.

6

555 F.2d 270 (10th Cir.1977) ............................................................................. 12

7 Hurley v. Ward

8

1979 U.S. Dist. LEXIS 8630 (S.D.N.Y. 1979) .................................................. 13

9 International Brotherhood of Teamsters v. United States

10

431 U.S. 324 (1977) ........................................................................................... 19

11 International Molders' and Allied Workers' Local Union No. 164 v. Nelson

12

102 F.R.D. 457 (N.D. Cal. 1983) ................................................................. 12, 14

13 Jack v. American Linen Supply Co.

14

498 F.2d 122 (5th Cir.1974) ............................................................................... 12

15 Johns v. DeLeonardis

16

145 F.R.D. 480 (N.D. Ill. 1992) ....................................................................... 12

17 Johnson v. District of Columbia

18

248 F.R.D. 46 (D.D.C. 2008) ......................................................................... 8, 17

19 Jones v. Cochran

20

1994 U.S. Dist. LEXIS 20625 (S.D. Fla. 1994)................................................. 10

21 Jordan v. County of Los Angeles

22

669 F.2d 1311 (9th Cir.) ............................................................................... 12, 14

23 Kelsey v. County of Schoharie

24

2007 WL 603406 (N.D.N.Y. 2007)...................................................................... 9

25 Klay v. Humana, Inc.

26

382 F.3d 1241 (11th Cir. 2004).......................................................................... 21

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 8 of 37

1 Lerwill Inflight Motion Pictures, Inc.

2

582 F. 2d 507 (9th Cir. 1978) ............................................................................. 15

3 Mack v. Suffolk County

4

191 F.R.D. 16 (D. Mass 2000) ..................................................................... 10, 19

5 Maneely v. City of Newburgh

6

208 F.R.D. 69 (S.D.N.Y. 2002)............................................................................ 9

7 Marriott v. County of Montgomery

8

227 F.R.D. 159 (N.D.N.Y. 2005) ......................................................................... 9

9 McBean v. City of New York

10

228 F.R.D. 487 (S.D.N.Y. 2005).......................................................................... 9

11 McElroy v. Arkansas Log Homes, Inc.

12

1989 WL 18755 (D.Kan. 1989).......................................................................... 22

13 Moyle v. County of Contra Costa

14

2007 WL 4287315 (N.D. Cal. 2007).................................................................... 9

15 Mullen v. Treasure Chest Casino, LLC

16

86 F.3d 620 (5th Cir. 1999) ................................................................................ 22

17 Multi-Ethnic Immigrant Workers Organizing Network v. City of Los Angeles

18

246 F.R.D. 621 (C.D.Cal. 2007) ........................................................................ 13

19 In re Methyl Tertiary Butyl Ether (MTBE) Products

20

2007 WL 1791258 (S.D.N.Y. 2007) .................................................................. 24

21 In re Nassau County Strip Search Cases

22

461 F.3d 219 (2nd Cir. 2006) .....................................................10, 13, 19, 20, 21

23 Nilsen v. York County

24

219 F.R.D. 19 (D.Me. 2003) ............................................................................... 9

25 In Re: Northern District Of Cal Dalkon Shield Etc.

26

693 F. 2nd 847 (9th Cir. 1982)........................................................................... 15

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 9 of 37

1 Owner-Operator Independent Drivers Association, Inc. v. Allied Van Lines,

2

Inc. 231 F.R.D. 280 (N.D.Ill. 2005) .......................................................................... 22

3

4

Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce, Fenner & Smith

5 587 F.Supp. 1112 (D.Del.1984) ......................................................................... 22

6 Parker v. Time-Warner Entertainment Corp. 7 331 F. 3d 13 (2nd Cir. 2003) ................................................................................ 8

8 Patrykus v. Gomilla 9 121 F.R.D. 357 (D.C. Ill. 1988) ......................................................................... 12

10 Paxton v. Union National Bank 11 688 F.2d 552 (8th Cir. 1982) .............................................................................. 12

12 Phillips Petroleum Co v. Shutts 13 472 U.S. 797 (1985) ............................................................................................. 7

14 Robinson v. Metropolitan-North Commuter R.R. 15 267 F.3d 147 (2nd Cir. 2001) ............................................................................. 22

16 Rossini v. Olgivy & Mather 17 798 F.2d 590 (2d Cir. 1986) ............................................................................... 18

18 Six (6) Mexican Workers v. Arizona Citrus Growers 19 904 F.2d 1301 (9th Cir. 1990)............................................................................ 24

20 Smith v. Dearborn County, Ind. 21 244 F.R.D. 512 (S.D. Ind. 2007) .......................................................................... 9

22 Smith v. Montgomery Co. 23 573 F. Supp. 604 (D. Md. 1983) ........................................................................ 10

24 Smook v. Minnehaha 25 340 F. Supp. 2d 1037 (D.S.C. 2004) .................................................................... 9

26 Stanton v. Boeing 27 327 F.3d 938 (9th Cir. 2003) .................................................................... 8, 14, 15

28

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Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 10 of 37

1 Sterling v. Velsicol Chemical Corp.

2

855 F.2d 1188 (6th Cir. 1988)............................................................................ 20

3 Tardiff v. Knox County

4

218 F.R.D. 332 (D.Me. 2003) .................................................................. 9, 19, 21

5 Valentino v. Carter- Wallace, Inc.

6

97 F.3d 1227 (9th Cir. 1996) .............................................................................. 20

7 In re Visa Check/MasterMoney Antitrust Litigation

8

280 F.3d 124 (2d Cir. 2001) ............................................................................... 21

9 Walters v. Reno

10

145 F.3d 1032 (9th Cir. 1998)............................................................................ 13

11 Wells v. Allstate Insurance Co.

12

210 F.R.D. 1 (D.D.C. 2002) ............................................................................... 18

13 Windham v. American Brands, Inc.

14

565 F.2d 59 (4th Cir.1977) ................................................................................. 24

15

16

FEDERAL STATUTES

17 FRCP 23(a) (1) ....................................................................................................... 10 18 FRCP 23(a) (2) ....................................................................................................... 10 19 FRCP 23(a) (3) ....................................................................................................... 11 20 FRCP 23(a) (4) ....................................................................................................... 11 21

22 STATE STATUTES
23 California Civil Code §52……………………………………………… ………. 24 24 Cal. Govt. Code §26605…………………………………………………… ...........1 25 Cal. Penal Code §4000.............................................................................................. 1 26

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 11 of 37

1

MISCELLANEOUS

2

3 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and 4 Procedure §1778 (2d ed. 1986)............................................................................... 20

5 Laurens Walker & John Monahan, Sampling Damages, 83 Iowa L.Rev. 545 6 (1998)....................................................................................................................... 25

7 8 Newberg §7.17 ......................................................................................................... 8 9 Newberg, §4:1 ........................................................................................................ 16

10 Michael J. Saks and Peter David Blanck, Justice Improved: THE 11 UNRECOGNIZED BENEFITS OF AGGREGATION AND SAMPLING IN 12 THE TRIAL OF MASS TORTS, 44 Stanford Law Review 815 (1992) ................... 25

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 1:07-cv-00474-DLB Document 33-1 Filed 06/17/08 Page 12 of 37

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Defendant Kern County operates its own jails under the auspices of the Kern

4 County Sheriff’s Department (“KCSD”). Cal. Govt. Code §26605; Cal. Penal

5 Code §4000.1 See, also, Defendants’ Answer to Plaintiffs’ Second Amended

6 Complaint, ¶5 (admitting that the KCSD is an agency of the County).

7

Until October 2007, the policy of the KCSD was 1) to strip/visual body

8 cavity search (hereafter “strip/vbc search”) all persons who appeared in court and

9 became entitled to release. The individual would be taken back to the housing
location in which s/he had been placed and strip searched, or alternatively would 10
be returned to the Central Receiving Facility (“CRF”) and strip searched there. 11
This shall be referred to herein as the “Post-Release Class”. 12
In addition, until that date, strip/vbc searches were routinely conducted any 13
time an inmate was moved out of the facility and returned, including when taken to
14 court and returned. All such strip/vbc searches during that time period occurred in

15 groups where inmates could view each other during the search. Thus, the searches

16 were not conducted in such a manner as to provide privacy to those being searched.

17 This is referred to herein as the “Group Strip Search Class”.2

18

This motion seeks certification of these two classes.

19

20

21

22 1 Kern County Sheriffs website at http://www.co.kern.ca.us/sheriff/index.html states that, “The Sheriff is the chief law enforcement officer in the county. In
23 addition to providing police services to the unincorporated portions of the county,

24 the Sheriff has the responsibility for the jail system….” Ex. “4”. 2 Plaintiffs’ First Amended Complaint also alleges that the KCSD conducts routine
25 strip/vbc searches prior to as part of the booking process prior to arraignment.

26 (“Prearraignment Class”) However, based on the discovery adduced thus far, there does not appear to be any factual basis to make such a claim. Therefore, plaintiffs
27 shall not seek to certify a Prearraignment Class, pending further discovery.

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1 II. COUNTY STRIP SEARCH POLICIES AND PRACTICES

2

The alleged County policies are, for the most part, admitted by the County.

3 In any event, in deciding a motion for class certification, it is axiomatic that the

4 plaintiffs' allegations in the complaint are taken as true. Eisen v. Carlisle &

5 Jacquelin, 417 U.S. 156, 177-78 (1974).

6

Plaintiffs deposed Sgt. Ian Silva on December 7, 2007, as the designated

7 representative of the Kern County Sheriff’s Department on various strip search

8 policy issues. Most of the description below of the Kern County practices in effect

9 during the class period are based on his testimony.

A. KCSD Strip Search Methodology 10

11

A strip search in the Kern County Jail typically entails the following: The

12 inmate removes his/her clothing; after the clothing is removed, deputy searches the

13 clothing articles; the male would lift his penis and scrotum to visually inspect for

14 anything hidden there; the inmate would be told to squat down and stand back up;

15 the inmate would bend over and separate the buttocks. Silva D. Tr. pp.19:14-21;

16 20:1-17. Department Search Procedures definition of strip search includes “visual

17 inspection of the underclothing, female breasts, buttocks, or genitalia of such

person.” The policies further specify that a visual body cavity search entails a 18

“visual inspection of the anus and/or vaginal area” in such a manner as to “expose 19
body cavity orifices.” 3 Exhibit “1”.

20

B. The Policy To Strip Search Those Returning From Court Entitled

21

to Release.

22 Until the policy was changed after filing of this suit, those inmates who were
23 being housed in the jail, appeared in court and became entitled to release were
24

25

26 3 Kern County Sheriff’s Department, Detentions Bureau Policies and Procedures;
27 Search Procedures C-500 revised 5/4/07; Definitions, Bates #05092 Ex. “7”.

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1 returned to their housing location and were subjected to a strip/ visual body cavity

2 search (“strip/vbc search”). The Kern County housing units are known as Lerdo.

3

Sgt. Silva testified that Lerdo inmates who went to court in 2005 and were

4 ordered released would go back to Lerdo via CRF, and would be strip searched at

5 Lerdo. Silva D. Tr. pp. 44:14-45; 45: 1-4. While the testimony was in reference to

6 2005, this was the policy in effect until October 2007. Silva D. Tr. pp.56:14-57;

7 57:1-7.

8

The written policy for inmates going into Lerdo provided that any inmate

9 going into the general population would be strip/vbc searched. Ex. “6”, “Lerdo

Pre-Trial Divison Search Procedure,” pg. 2 (Bates 05070). Thus, the written policy 10
provided for such strip searches because post-release inmates were being returned 11
to the general population for out-processing. Ex. “6”. 12
C. The Policy Of Conducting Strip Searches En Masse 13

14

When strip/vbc searches are conducted by the KCSD, which occurs every

15 time that inmates are moved from Lerdo and back (see Ex. “6”, supra), the
16 searches are routinely conducted en masse, i.e., the searches were group searches
17 where inmates were able to view the other inmates being strip searched. Silva D. Tr. pp.35:3-36; 36:1-2, D. Tr. p.51:2-10. The Sheriff’s Department stopped both
18 of the foregoing policies on or about October 1, 2007. See Policy No. C-550: Strip
19 and Body Cavity Searches, effective date 10-01-07, Ex. “1”.
20 III. CLASS REPRESENTATIVES
21 In the interests of space, the facts supporting each of the named plaintiffs’
22 allegations, including the facts supporting commonality, typicality and their
23 adequacy as class representatives, are contained in the declarations submitted
24 herewith. The facts are summarized here are contained in the declarations of each

25 plaintiff submitted with this motion, but the specific references to the relevant

26 paragraphs of each declaration are omitted.

27

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1

A. Plaintiff Marsial Lopez

2

On or about late June 2005, plaintiff Lopez surrendered himself to out-of-

3 state law enforcement officers upon learning that there was a Kern County felony

4 warrant for his arrest for charges filed in the Kern County Superior Court.

5 Thereafter, Lopez was incarcerated in the Kern County jails, commencing late June

6 2005 and continuing until the first week of November, 2006.

7

During his incarceration in the Kern County jails, Kern County Sheriff’s

8 Department (“KCSD”) deputies transported Lopez to and from the Kern County

9 Superior Court for appearances on plaintiffs’ then pending criminal case.

Whenever Lopez was transported between jail facilities, and when he was returned 10

to jail from superior court, he was subjected to intrusive visual body cavity/strip 11

searches in groups with other inmates being transported, where inmates were able

12 to view each others while being strip/vbc searched. The conditions in which these

13 searches occurred were often unsanitary.

14

On or about November 6, 2006, Lopez, still incarcerated in the Kern County

15 jail and awaiting a retrial (in his first trial, the jury deadlocked 11-1 in favor of

16 acquittal), was taken before the Kern County Superior Court. At that time the

17 prosecuting authority dismissed all criminal charges against him. The prosecutor

18 dismissed the charges because the prosecutor’s office finally decided to test DNA

19 found on clothing recovered from the crime scene. The DNA test results excluded

20 him as the perpetrator of the charged crimes.

21

After the charges were dismissed, the superior court ordered Lopez’ release.

22 At that point KCSD deputies returned Lopez to the Kern County jail for the sole

23 purpose of processing his release from custody. Upon arrival at the jail, Lopez was

24 subjected to an illegal and intrusive visual body cavity/strip search, in unsanitary 25 conditions, without privacy, and without reasonable suspicion that he possessed 26 contraband or weapon(s). The search took place in the presence of persons not

27

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1 necessary for the search, forcing Lopez to expose his body cavities in the presence

2 of other persons, without privacy, and in unsanitary conditions.

3

B. Plaintiff Sandra Chávez

4

On or about February 17, 2007, plaintiff Chavez was arrested by KCSD

5 personnel, placed in KCSD custody after arrest, and transported to a Kern County

6 jail facility. Chavez was arrested on a charge related to fighting in public.

7

Upon her arrival at the jail, KCSD personnel subjected Chavez to an

8 intrusive strip and visual body cavity search. During the search KCSD employees

9 required Chavez to remove all of her clothing, and to bend and squat, exposing her

anus and vagina. Chavez was searched in a room along with approximately four or 10
five other women. At the time of the search, KCSD personnel did not have 11
probable cause or reasonable suspicion that Chavez or the other prisoners were in 12
the possession of contraband, or any other substance that would justify or 13
necessitate the strip and/or body cavity search. A male officer, though not
14 participating in the strip search, was within view of Chavez during the search.

15

After being booked and strip searched, Chavez was given a court date and

16 released from custody. She was not arraigned until two weeks later, where she was

17 sentenced to probation and a fine.

18

C. Plaintiff Theodore Medina

19

On or about June 7, 2006, plaintiff Medina was arrested by KCSD

20 personnel, placed in KCSD custody after arrest, and transported to a Kern County

21 jail facility. Medina was arrested on a charge of public intoxication.

22

Upon arrival at the jail, KCSD personnel subjected Medina to an intrusive

23 strip and visual body cavity search. During the search KCSD employees required

24 Medina to remove all of his clothing, and to bend and squat, exposing his anus.

25 Medina was searched in a room along with approximately four or five other

26 arrestees. At the time of the search, KCSD personnel did not have probable cause

27 or reasonable suspicion that Medina or the other arrestees were in the possession of

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1 contraband, or any other substance that would justify or necessitate the strip and/or

2 body cavity search. The strip and visual body cavity search described herein

3 occurred before Medina was arraigned.

4

Within two years from the filing of this complaint, Medina was also arrested

5 on a charge of spousal abuse, placed in KCSD custody after arrest, and transported

6 to a Kern County jail facility. While being booked KCSD personnel subjected

7 Medina to an intrusive strip and visual body cavity search, in the presence of others

8 not involved in his search, and in unsanitary conditions. After spending 17 days in

9 a Kern County jail facility, Medina appeared in court, was sentenced to time served

and ordered released by the judge. After the order of release, Medina was 10
transferred from court to jail and, as a routine part of out-processing, was subjected 11
to an intrusive strip search, in the presence of others not involved in his search, and 12
in unsanitary conditions. At the time of the aforementioned searches, KCSD 13
personnel did not have probable cause or reasonable suspicion that Medina was in
14 possession of contraband, or any other substance that would justify or necessitate

15 the strip and/or visual body cavity search.

16 IV. CLASS DEFINITIONS

17

Class One (“Post-Release Class”) is defined as persons who, from March 27,

18 2005, up to October 1, 2007, or the time of judgment or settlement of the case: (a)

19 were in KCSD custody; (b) were taken from jail to court; (c) became entitled to

20 release after going to court; and (d) were strip and/or visual body cavity searched

21 before release pursuant to KCSD’s blanket policy, practice and/or custom to

22 strip/vbc search all court returns, including those entitled to release. Plaintiffs

23 Lopez and Medina belong to and represent the Post-Release Class.

24

Class Two (“Group Strip Search Class”) is defined as persons who, from

25 March 27, 2005, up to October 1, 2007, or the time of judgment or settlement of

26 the case: (a) were in KCSD custody; (b) were subjected to a strip and/or visual

27 body cavity search in a group with other inmates also being strip/vbc searched,

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1 which search did not afford privacy from others; and (c) whose strip searches were

2 conducted pursuant to KCSD’s blanket policy, practice and/or custom to regularly

3 conduct strip/vbc searches in a group setting. Plaintiffs Lopez, Chavez and Medina

4 belong to and represent the Group Strip Search Class.

5 V. GENERAL CLASS ACTION CONSIDERATIONS.

6

A. Class Actions Are Particularly Suitable in Civil Rights Cases.

7

The purposes of class actions are to (1) avoid multiplicity of actions and (2)

8 enable persons to assert small claims that could not be litigated individually

9 because the costs would far out-weigh any recovery. E.g., Crown, Cork, & Seal

Co. v. Parker, 462 US 345, 349 (1983). Class actions “conserve” resources by 10
permitting an issue potentially affecting every class member to be litigated in an 11
economical fashion. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 12
155 (1982). Civil rights cases, like this one, “are often by their very nature class 13
suits involving class-wide wrongs.” East Texas Motor Freight, Inc. v. Rodriguez,
14 431 U.S. 395, 405 (1977).

15

The United States Supreme Court and the Ninth Circuit have repeatedly

16 endorsed the class action procedure as the superior method of adjudicating cases

17 where there are numerous claims that are too small to litigate individually. See,

18 e.g., Phillips Petroleum Co v. Shutts, 472 U.S. 797 (1985); Blackie v. Barrack, 524

19 F.2d 891, 899 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976). Further, “certain

20 types of lawsuits, such as those in the criminal justice area, are inherently class

21 actions because individual wrongs can be righted only by institutional reforms

22 affecting an entire class of people.” Herbert B. Newberg & Alba Conte, Newberg

23 on Class Actions (4th ed.2002) (hereafter “Newberg”) §25:25.

24

B. Presumptions Applicable to Motion for Class Certification

25

In a class certification motion, plaintiffs’ allegations in the complaint are

26 taken as true, and inquiry into the merits of the case is improper except to

27 determine whether there is a realistic claim. Eisen v. Carlisle & Jacquelin, supra,

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1 177-78; Stanton v. Boeing, 327 F.3d 938, 954 (9th Cir. 2003) (court’s inquiry

2 “does not extend to whether plaintiff class representatives have successfully stated

3 a cause of action or will prevail on the merits”); Blackie v. Barrack, 524 F.2d 891,

4 901 (9th Cir. 1975).

5

In a close certification case, a court should err on the side of certifying the

6 class, because a class can always be decertified. Rule 23(c) (1); Blake v. City of

7 Los Angeles, 595 F.2d 1367, 1386 (9th Cir. 1979); Cummings v. Connell, 316 F.3d
8 886, 896 (9th Cir. 2003). As a result, “if there is to be an error made, let it be in 9 favor and not against the maintenance of the class action, for it is always subject to
modification should later developments during the course of the trial so require.” 10
Esplin v. Hirschi, 402 F. 2d 94, 99 (10th Cir. 1968). Although class certifications 11
are reviewed for abuse of discretion, “an appellate court…is noticeably less 12
deferential, … when the district court has denied class status than when it has 13
certified a class.” Parker v. Time-Warner Entertainment Corp., 331 F. 3d 13, 18 14 (2nd Cir. 2003). See also Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1223 (9th Cir. 15 2007) (greater deference given where district court certifies class). Hence, the
16 presumption is in favor of certification. Newberg §7.17.

17

C. Strip Search Damages Class Actions Have Routinely Been

18

Certified by Federal Courts Around the Country

19

In recent years, there have been numerous Rule 23(b)(3) strip search class

20 actions certified around the county. See, e.g., Craft v. County of San Bernardino,

21 No. EDCV 05-00359 SGL (OPx) (dated October 11, 2006) (certifying pre-

22 arraignment, post-release, and manner of search (encompassing group strip search)

23 (b)(3) damages classes) 4; Johnson v. District of Columbia, 248 F.R.D. 46 (D.D.C.

24 2008) (certifying Fourth Amendment and equal protection pre-arraignment (b)(3)

25

26 4 Because the Craft opinion is not currently available on-line, a copy is attached as
27 Ex. “8”.

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1 damages classes); Moyle v. County of Contra Costa, 2007 WL 4287315 (N.D. Cal.

2 2007) (certifying juvenile classes for pre-detention hearing strip searches, and

3 those who were strip searched after visits or court appearances before the detention

4 hearing); Smith v. Dearborn County, Ind., 244 F.R.D. 512 (S.D. Ind. 2007)
5 (certifying (b)(3) class of arrestees strip searched solely because they were charged 6 with a felony); Kelsey v. County of Schoharie, 2007 WL 603406 (N.D.N.Y. 2007) 7 (certifying (b)(2) and (b)(3) classes for those subjected to clothing exchange/strip 8 search process on initial admission to be housed in county jail); Marriott v. County 9 of Montgomery, 227 F.R.D. 159, 173 (N.D.N.Y. 2005) (certifying class of arrestees

10 required to completely disrobe in front of an officer while the officer observes the
11 naked body for injury and gang tattoos); McBean v. City of New York, 228 F.R.D.
12 487, 502 (S.D.N.Y. 2005) (inmates subjected to DOC’s blanket policy subjecting
13 all post-arraignment misdemeanor arrestees to intake strip searches); Bullock v.
14 Sheahan, 225 F.R.D.227 (N.D. Ill. 2004) (men returned from court and entitled to 15 release were routinely strip searched and women were not); Smook v. Minnehaha, 16 340 F. Supp. 2d 1037 (D.S.C. 2004) (strip searches of all juveniles admitted to
17 facility regardless of charged offense or reasonable suspicion); Tardiff v. Knox
18 County, 365 F.3d 1 (1st Cir. 2004) (affirming Nilsen v. York County, 219 F.R.D.
19 19 (D.Me. 2003) and Tardiff v. Knox County, 218 F.R.D. 332 (D.Me. 2003), both

20 arrestee strip search classes); Calvin v. Sheriff of Will County, 2004 WL 1125922

21 (N.D. Ill. 2004) (misdemeanor arrestee strip search class and court return strip

22 search class); Bynum v. District of Columbia, 217 F.R.D. 43 (D.D.C. 2003) (23(b)

23 (2) and (b)(3) court return entitled to release strip search classes; accepted

24 statistical sampling proposal for handling of damages claims); Blihovde v. St. Croix

25 County, Wis., 219 F.R.D. 607 (W.D. Wis. 2003) (23(b)(3) certification granted for

26 policy of strip searching arrestees); Maneely v. City of Newburgh, 208 F.R.D. 69, 27 78-79 (S.D.N.Y. 2002) (policy of strip searching all pre-arraignment inmates);

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1 Ford v. City of Boston, 154 F. Supp. 2d 131 (D. Mass. 2001) (strip searches of

2 female arrestees); Mack v. Suffolk County, 191 F.R.D. 16, 17 (D. Mass 2000) (strip

3 search of women arrestees); Doan v. Watson, No. 99-4-C (S.D.Ind. Mar. 2, 2000)

4 (cited in Doan v. Watson, 168 F.Supp.2d 932, 933 n. 1 (S.D.Ind.2001)) (23(b) (3)
5 strip search class certified); Gary v. Sheahan, 1999 WL 281347 (N.D. Ill. 1999),
6 appeal dismissed, 188 F.3d 891 (7th Cir. 1999) (denying motion to decertify
7 (b)(2)and (b)(3) class of persons returned from court and strip searched when 8 entitled to release); Tyson v. City of New York, No. 97 CIV-3762 (S.D.N.Y. Mar. 9 18, 1998) (oral decision) (cited in Augustin v. Jablonsky, No. 99 CV 3126(DRH)
(ARL), 2001 WL 770839, at *11-12 (E.D.N.Y. Mar. 8, 2001)) (arrestee strip 10
searches); Eddleman v. Jefferson County, Ky., 96 F.3d 1448 (6th Cir. 1996) (strip 11
searches of minor arrestees); Jones v. Cochran, 1994 U.S. Dist. LEXIS 20625 12
(S.D. Fla. 1994) (post-acquittal strip searches); Doe v. Calumet City, 128 F.R.D. 93 13
(N.D. Ill. 1989) and 707 F. Supp. 343 (N.D. Ill. 1989); 1993 WL 512788 (N.D. Ill. 14 1993) (policy of strip searching all women misdemeanor arrestees); Smith v. 15 Montgomery Co., 573 F. Supp. 604 (D. Md. 1983) (strip searches of temporary 16 detainees). See, also, In re Nassau County Strip Search Cases, 461 F.3d 219 (2nd 17 Cir. 2006) (abuse of discretion to refuse to certify under 23(b)(3) strip search class
18 for liability pursuant to Rule 23 (c)(4)(A) where there was a blanket strip search
19 policy; on remand, district court should reconsider whether damages component of

20 case should also be certified).

21 VI. REQUIREMENTS UNDER FRCP 23(A).

22

All class actions in federal court must meet the prerequisites of Rule 23(a).

23 There are four prerequisites, each of which are satisfied in this case for all five

24 classes: Numerosity: The class must be so numerous that joinder of all members

25 individually is “impracticable”. FRCP 23(a) (1). Commonality: There must be

26 questions of law or fact common to the class. FRCP 23(a) (2). Typicality: The 27 claims or defenses of the class representative must be typical of the claims or

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1 defenses of the class. FRCP 23(a) (3). Adequacy of representation: The person

2 representing the class must be able fairly and adequately to protect the interests of

3 all members of the class. FRCP 23(a) (4).

4

A. Numerosity

5

According to the Kern County Sheriff’s website (http://www.co.kern.ca.us/

6 sheriff/detentions), Ex. “4” “The Kern County Sheriff's Office, Detentions Bureau

7 has an average daily inmate population of approximately 2,500 inmates. We
8 receive approximately 40,000 new arrests a year.” Thus, assuming that the
9 challenged practices ceased as of October 2007, the class period is approximately 10 30 months, and the total processed over that time was 100,000. KCSD
classification supervisor Sgt. Greg Gonzales, whose job in part was to maintain 11
population counts in the jails, provided ample evidence of numerosity at his 12
deposition.5 Deposition of Greg Gonzales, Ex. “9”, at p. 4:4-20. For example, in 13
2006 alone 51,882 inmates were transported to and from court. Ex. “9”, at B-0002. 14
That same year, 44, 797 were released by the jails. Id. at B-0003. Because all court 15 returnees during the class period were strip searched en masse, and because 16 persons released after court were also strip searched as a matter of policy, Sgt.
17 Gonzales’ numbers are far above what is needed to satisfy the numerosity
18 requirement. Since Plaintiffs have not yet received the Sheriff’s computer

19 database and the information needed to write code to determine the size of

20 different classes, we ourselves have not generated a precise number. The requests

21 for such data are pending, but it will probably be some time before the data has

22

23

24 5In response to a 30(b)(6) notice, Sgt. Gonzales generated population counts for the class period. Gonzales Depo, Ex. "9", at pp. 11:11 to 12:22. Attached hereto as Ex.
25 9, is a copy of the 30(b)(6) notice. Attached hereto as Ex. 9, is a copy of Sgt.
26 Gonzales’ calculations in response to each of the 30(b)(6) areas, which were also attached as an exhibit to his deposition.
27

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1 been obtained, understood and analyzed. See Declaration of Brian Kriegler, Ex.

2 “3”, at ¶12.

3

To satisfy the numerosity requirement, Plaintiffs need only show that the

4 number is sufficiently large that it would be extremely difficult or inconvenient to
5 join all the members of the class. Comparably sized or smaller classes have
6 routinely been certified. Alba Conte and Herbert B. Newberg, Newberg on Class 7 Actions (4th Ed. 2002), §3:5 (hereafter “Newberg”) (“in light of prevailing 8 precedent, the difficulty inherent in joining as few as 40 class members should 9 raise a presumption that joinder is impracticable”); see, e.g., Jordan v. County of
Los Angeles, 669 F.2d 1311, 1319 (9th Cir.), vacated on other grounds, 459 U.S. 10
810 (1982)(class consisting of three groups numbering 39, 64, and 71 respectively 11
probably sufficient to satisfy on numbers alone, although there were “other indicia 12
of impracticability); Gay v. Waiters' and Dairy Lunchmen's Union, 549 F.2d 1330, 13 1332 (9th Cir. 1977) (reversing denial of class certification for lack of numerosity 14 of class of 184 plaintiffs, noting that “[c]ertification of a class under Rule 23 has 15 been granted many times on lesser numbers than in the present case,” and citing as 16 an example Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976)
17 (110 members “clearly a sufficient number”); Paxton v. Union Nat’l Bank, 688
18 F.2d 552 561 (8th Cir. 1982)(citing with approval the decision in Cypress v.
19 Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648, 653 (4th

20 Cir.1967) (18 class members); Jack v. American Linen Supply Co., 498 F.2d 122,

21 124 (5th Cir.1974) (51 class members); Horn v. Associated Wholesale Grocers,

22 Inc., 555 F.2d 270, 275-276 (10th Cir.1977) (41-46 class members sufficient);

23 Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1030 (6th Cir.1977) (7

24 member class); International Molders' and Allied Workers' Local Union No. 164 v.

25 Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983) (456 member Fourth Amendment 26 class); Patrykus v. Gomilla, 121 F.R.D. 357, 363 (D.C. Ill. 1988) (50 member 27 Fourth Amendment class); Johns v. DeLeonardis, 145 F.R.D. 480 (N.D. Ill. 1992)

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1 (25 member strip search class); Multi-Ethnic Immigrant Workers Organizing

2 Network v. City of Los Angeles, 246 F.R.D. 621 (C.D.Cal. 2007) (certifying

3 injunctive relief and damages classes for police breakup of May Day march in Los

4 Angeles; estimated number of people who attended the protest was 6000).

5

B. Commonality

6

Minor factual differences will not defeat a class action. So long as it appears

7 unlikely “that differences in the factual background of each claim will affect the
8 outcome of the legal issue, … the class action device saves the resources of both
9 the courts and the parties permitting an issue potentially affecting [class members] 10 to be litigated in an economical fashion under Rule 23.” Califano v. Yamasaki,
442 U.S. 682, 701 (1979). See, also, Walters v. Reno, 145 F.3d 1032, 1045-45 (9th 11
Cir. 1998) (existence of common legal issue with divergent factual predicates 12
sufficient to meet commonality requirement of Rule 23); Hanlon v. Chrysler 13 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (“existence of shared legal issues with 14
divergent factual predicates is sufficient, as is a common core of salient facts 15 coupled with disparate legal remedies within the class”); Hurley v. Ward, 1979 16 U.S. Dist. LEXIS 8630 (S.D.N.Y. 1979) (fact that New York Department of
17 Corrections Services' strip search policy, applicable to all inmates, included a
18 general authorization for practices challenged as unconstitutional provided the

19 "necessary common questions, even though the specific circumstances in which it

20 may be applied to individual inmates can differ”).

21

Class certification in strip search cases, for example, does not turn on the

22 individual circumstances of each search. See In re Nassau County Strip Search 23 Cases, 461 F.3d 219 (2nd Cir. 2006) (abuse of discretion to refuse to certify under

24 23(b)(3) strip search class for liability pursuant to Rule 23 (c)(4)(A) where there

25 was a blanket strip search policy); see generally strip search cases cited at § V(C) 26 supra.

27

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1

The common issues here include the existence and legality of blanket

2 policies of (1) conducting strip/visual body cavity searches of those returned from

3 court entitled to release before release; and (2) conducting strip/visual body cavity

4 searches in groups where inmates could view each other during the search.

5

The Ninth Circuit, and district courts within it, has allowed the certification

6 of other classes where the class members have far less in common than the class

7 members here. See, Hilao v. Estate of Ferdinand Marcos, 103 F. 3d 767, 774 (9th

8 Cir. 1996) (allowing the certification of a class of “all current civilian citizens of

9 the Republic of the Philippines, their heirs, and beneficiaries, who between 1972

and 1986 were tortured, summarily executed or disappeared while in custody of 10
military or paramilitary groups.”); see, also, International Molders’ and Allied 11
Workers’ Local Union No. 164 v. Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983) 12
(certifying a class of persons of Hispanic or other Latin American ancestry, 13
subjected to the policies, practices and conduct of INS and/or Border Patrol during

14 the course of INS area control operations directed at places of employment).

15

C. Typicality

16

“The commonality and typicality requirements of Rule 23(a) tend to merge.”

17 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982); Stanton

18 v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003) (same). The test of typicality is

19 “whether other members have the same or similar injury, whether the action is

20 based on conduct which is not unique to the named plaintiffs, and whether other

21 class members have been injured by the same course of conduct.” Hanon v.

22 Dataproducts Corp., 976 F. 2d 497, 508 (9th Cir. 1992). If the representative

23 “claim arises from the same event, practice or course of conduct … and is based

24 upon the same legal theory, varying factual differences” will not render the class

25 representative’s claim atypical. Jordan, supra, 669 F.2d at 1321. Commonality and

26 typicality “mandate only that complainants’ claims be common, and not in 27 conflict.” Hassine v. Jeffes, 846 F.2d 169, 177 (3rd Cir. 1988). Thus,

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1 “representative claims are ‘typical’ if they are reasonably co-extensive with those

2 of absent class members; they need not be substantially identical.” Hanlon, supra,

3 150 F.3d at 1020.

4

Here, the main legal theories apply equally to all class representatives and

5 members. As discussed extensively, supra, plaintiffs were subjected to

6 unreasonable searches in violation of their civil rights without a reasonable

7 suspicion to believe they had contraband, or otherwise posed a threat to the

8 security of the prison facility, upon release, and were strip searched in groups.

9 Typicality is satisfied.

D. Adequacy of Representation 10

1. Class Representatives’ Interests Are Not Antagonistic To

11

The Interests Of The Class

12

The class will be adequately represented in this action. Rule 23(a)(4)’s 13
requirement for adequate representation is met when 1) there is no conflict of 14
interest between the legal interests of the named plaintiffs and those of the 15
proposed class; 2) counsel for the plaintiffs is competent to represent the class. 16
Lerwill Inflight Motion Pictures, Inc., 582 F. 2d 507, 512 (9th Cir. 1978); In Re:

17 Northern Dist. Of Cal Dalkon Shield Etc., 693 F. 2nd 847, 855 (9th Cir. 1982);

18 Stanton v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003).

19

The interests of all the members of the class are aligned in this action, and

20 there is no anticipated or actual conflict of interests here. See Class Representative

21 Declarations filed herewith. The Defendants’ policies and practices subjected all

22 of the plaintiff class to the same deprivations, and all of the plaintiffs have suffered

23 substantially similar injuries as a result. Moreover, the named Plaintiffs have

24 suffered injuries that are representative of those of all of the class members.

25

2. Counsel Are Well Qualified To Represent The Class

26

Plaintiffs’ counsel include Barrett Litt and Paul Estuar of the law firm of

27 Litt, Estuar, Harrison & Kitson, LLP; Robert Mann and Donald Cook. Counsel are

28

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1 experienced class action and civil rights practitioners. Mr. Litt has handled

2 numerous civil rights class actions, which are enumerated in his accompanying

3 declaration and CV, including three of the four largest strip search settlements in

4 the country. See Declaration of Barrett Litt, ¶5. Mr. Estuar, Mr. Mann and Mr.

5 Cook have been involved in many to most (in Mr. Estuar’s case) of the class cases

6 in which Mr. Litt has been active. Mr. Mann and Mr. Cook have also been

7 involved in class civil rights cases in which Mr. Litt has not participated. This

8 group of class counsel is among the most experienced in the country in litigation of

9 the type involved here.

All of the criteria set forth in Rule 23 (g) are present here, i.e., (a) counsel 10
have identified and investigated the potential claims in the case, (b) counsel have 11
extensive experience in handling similar cases, (c) counsel are well versed in the 12
applicable law, and indeed have often made the law, and (d) counsel have the 13
resources necessary to prosecute the case.

14 VII. REQUIREMENTS UNDER RULE 23(B)

15

Plaintiffs are seeking certification under all of Rule 23(b)’s provisions –

16 (b)(1), (b)(2), and (b)(3). “In order to be maintained as a class action, a

17 representative suit must comply with the requirements of each of the four

18 subsections of Rule 23(a), and must satisfy the additional requirements of at least

19 one of the three subdivisions of Rule 23(b).” Newberg, §4:1. In addition to meeting

20 all the requirements for 23(a), the plaintiff class easily meets the requirements of

21 23(b), and specifically Rule 23(b)(2) and (3).

22

A. Rule 23(b)(1)’s Requirements Are Met.

23

Rule 23 (b)(1) provides that a class action may be maintained where

24 prosecution by or against individual class members would create a risk of either (a)

25 inconsistent or varying adjudications that could establish incompatible standards,

26 or (b) adjudication with respect to individual class members that would, as a

27 practical matter, dispose of others’ claims or substantially impair or impede their

28

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1 ability to defend their interests. A case of this type readily meets the standard of a

2 risk of inconsistent verdicts, given that the challenge here is to a policy, and there

3 is a risk that different triers of fact could reach different conclusions regarding the

4 lawfulness of the policy.

5

B. Common Questions of Law or Fact Predominate

6

Rule 23(b)(3) provides that class certification should be granted where “the

7 questions of law or fact common to the members of the class predominate over any
8 questions affecting only individual members, and that a class action is superior to
9 other available methods for the fair and efficient adjudication of the controversy.”
10 Determination of the predominance of questions of law or fact common to the class
11 and the superiority of a class action is to be guided by a consideration of four 12 factors, (1) the interest of members of the class in individually controlling the 13 prosecution or defense of separate actions; (2) the extent and nature of any 14 litigation concerning the controversy already commenced by or against members
of the class; (3) the desirability or undesirability of concentrating the litigation of 15
the claims in a particular forum; and (4) the difficulties likely to be encountered in 16
the management of a class action. Rule 23(b)(3). 17
1. Common Questions of Law or Fact Predominate 18
The first requirement is that common factual and legal issues predominate 19
over any such issues that affect only individual class members. There is no magic 20 formula in making this determination. E.g., Bynum v. District of Columbia, 214 21 F.R.D. 27, 41 (D.D.C. 2003) (certifying hybrid (b)(2) and (b)(3) strip search class). 22 The common questions of law or fact “predominate over any questions affecting
23 only individual members” in this case because the allegations of an
24 unconstitutional custom and practice of strip searches relate to the defendant' s
25 conduct, and therefore proof of liability will not vary among the class members.

26 See, e.g., Johnson v. District of Columbia, 2008 WL 344739, 2 (D.D.C. 2008)

27

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1 (“Courts routinely certify strip search class actions similar to this one”); see

2 generally cases cited in §V(C), supra.

3

Where a common nucleus of operative facts forms the central issue in the

4 case, even if individualized issues of proof are present, the predominance hurdle

5 will have been cleared. See, e.g., Dornberger v. Metropolitan Life Insurance

6 Company, 182 F.R.D. 72, 77 (S.D. N.Y. 1998) (Rule 23(b)(3) class where

7 insurance policies sold in nine overseas countries without regulatory approval);

8 Wells v. Allstate Insurance Co., 210 F.R.D. 1, 12 (D.D.C. 2002) (Rule 23(b)(3)

9 class certified where common questions predominated in consumer action

10 involving denial of insurance claims); Rossini v. Olgivy & Mather, 798 F.2d 590,

11 598-599 (2d Cir. 1986) (reversing decertification of Rule 23(b)(3) class as to

12 employee claims of sex discrimination in training and promotion alleging pattern

13 and practice of employer). Here, the common policies described above provide that

14 common nucleus. As mentioned above, (b)(3) certifications are common in strip

15 search cases due to the predominance of a particular policy or approach to a

16 particular demonstration.

17

Generally speaking, if the action complained of on behalf of the putative

18 class members arises out of a single set of operative facts, then the commonality
19 requirement will have been satisfied. If that common nucleus of operative facts
20 forms the central issue in the case, even if individualized issues of proof are
21 present, the predominance hurdle will have been cleared. See, e.g., Rossini v. 22 Olgivy & Mather, 798 F.2d 590, 598-599 (2d Cir. 1986) (reversing decertification 23 of Rule 23(b)(3) class as to employee claims of sex discrimination in training and
promotion alleging pattern and practice of employer); see generally cases cited in 24
Argument V (C), supra. 25

26

27

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1

There are at least two key questions, one of fact and one of law, common to

2 members of each of the proposed classes: (a) whether the County has a particular

3 strip search policy and (b) whether the policy violates the Constitution.

4 The resolution of both these questions would dispose of the liability issue. This

5 suffices to show that common questions of law and fact predominate over any

6 questions affecting individual class members. E.g., Bynum, 214 F.R.D. at 39.

7

2. Once a Common Policy Or Law Is Established, the Burden

Shifts To The Defendants To Identify Exceptions.

8

9

It is well established in strip search cases that, once Plaintiffs establish an

10 unlawful policy, the burden shift to defendants to affirmatively identify individuals
11 who were justifiably strip searched despite the existence of the unlawful policy.
12 See, e.g., Doe v. Calumet City, Illinois, 754 F.Supp. 1211, 1220 (N.D.Ill. 1990) (plaintiffs not required to show that defendants lacked reasonable belief that
13 individual plaintiffs were concealing weapons or contraband where plaintiffs had
14 shown the strip-search policy to be routine and indiscriminate); Mack v. Suffolk
15 County, 191 F.R.D. 16, 24 (D.Mass. 2000) (where a blanket strip search policy
16 existed, defendants had burden to demonstrate that particular searches were
17 reasonable); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607, 621 -
18 622 (W.D.Wis. 2003) (following Mack and Doe, supra); Tardiff v. Knox County,
19 365 F.3d 1, 6 (1st Cir. 2004) (recognizing that several courts have found where 20 there is a blanket policy the burden shifts to the defendants to point out the
21 exceptions to the rule, but not deciding the issue except to say that, whoever had
22 the burden, it would not defeat class certification); In re Nassau County Strip

23 Search Cases, 461 F.3d 219, 230-31 (2nd Cir. 2006) (defense that some plaintiffs

24 were properly strip searched not defeat class certification). See also International

25 Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) (when plaintiffs in

26 discrimination action prove that defendants engaged in pattern or practice of

27 discrimination, burden of persuasion shifts to defendants to prove individual

28

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1 actions were not discriminatory); Hervey v. City of Little Rock, 787 F.2d 1223,

2 1228 (8th Cir.1986) (applying pattern or practice method of proof to claim brought

3 under §1983); Anderson v. Cornejo, 199 F.R.D. 228, 240-41 (N.D.Ill.2000)

4 (assuming that pattern and practice method of proof applies to class actions

5 involving strip search policies).

6

3. Predominance on a Single Issue is Enough to Satisfy 23(b)(3)

7

Rule 23(c)(4) provides that “when appropriate (A) an action may be brought

8 or maintained as a class action with respect to particular issues.” Thus, the court

9 could certify the class for liability purposes only, or for a determination of certain
10 specified liability issues, leaving other liability issues (although here there are
11 none) and damages for individual determination. See, e.g., 7A Charles Alan Wright
12 & Arthur R. Miller, Federal Practice and Procedure §1778 (2d ed. 1986) ("when 13 one or more of the central issues in the action are common to the class and can be
said to predominate, the action will be considered proper under Rule 23(b)(3) even 14
though important matters will have to be tried separately"); Valentino v. Carter15
Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (“even if the common questions 16
do not predominate over the individual questions so that class certification of the 17
entire action is warranted, Rule 23 authorizes the district court in appropriate cases 18
to isolate the common issues under Rule 23(c)(4)(A) and proceed with class 19
treatment of these particular issues.”); In re Nassau County Strip Search Cases, 20 461 F.3d 219, (abuse of discretion to refuse to certify 23(b)(3) strip search class for 21 liability only under Rule 23 (c)(4)(A) where there was a blanket strip search
22 policy; on remand, district court should reconsider whether damages component
23 should be certified) (citing Valentino); Sterling v. Velsicol Chemical Corp., 855

24 F.2d 1188, 1196-97 (6th Cir. 1988) ("no matter how individualized the issue of

25 damages may be . . . the mere fact that questions peculiar to each member of the

26 class remain after the common questions of the defendant's liability have been

27 resolved does not dictate the conclusion that a class action is impermissible").

28

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1

In In Re Nassau County Strip Search Cases, supra, 2006 WL 2441023, the

2 Second Circuit reversed as an abuse of discretion the district court’s denial of class

3 certification in a case involving a blanket strip search policy, indicating that the

4 requirements of Rule 23(b)(3) were met even if damages were not certified due to

5 individual considerations because Rule 23(c)(A)(4) provided for certification of
6 individual issues. In doing so, the Court characterized the issue as “whether a court
7 may employ Rule 23(c)(4)(A) to certify a class as to a specific issue where the
8 entire claim does not satisfy Rule 23(b)(3)'s predominance requirement” In
9 answering the question in the affirmative (and indeed holding it was an abuse of discretion not to do so), the Second Circuit cited Valentino, supra, a Ninth Circuit
10 case. It emphasized that, as here, the class “definition referenced only defendants'
11 ‘blanket policy,’ thus avoiding questions of probable cause.” Id. at p.9. Thus, at a
12 minimum, certification should be granted on the liability issues.
13 4. Damages Do Not Defeat Predominance in this Case.
14 The First, Second, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits, have
15 recently reaffirmed that the mere existence of individual damages issues in a (b)(3)
16 class does not cause individual issues to predominate over common issues on
17 liability or causation so as to justify denying certification of the class when the
18 liability issue is susceptible of class proof. Tardiff, supra, 365 F.3d at 6; In re Visa
19 Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 141 (2d Cir. 2001);
20 Gunnells v. Healthplan Servs., 348 F.3d 417, 426 (4th Cir. 2003); Bertulli v. Indep.
21 Ass'n of Cont'l Pilots, 242 F.3d 290, (5th Cir. 2001); Carnegie v. Household Int'l,
22 Inc., 2004 U.S. App. LEXIS 14635 (7th Cir. July 16, 2004); Allapattah Servs. v.
23 Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. Fla. 2003); Klay v. Humana, Inc.,
24 382 F.3d 1241, 1259 (11th Cir. 2004). See also cases cited in §VI(C)(4), supra.
25 Several Circuits have recognized that, since most class actions settle,
26 manageability (including predominance issues) issues – which generally do not 27

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1 arise until the damages phase – will never arise at all. See, e.g., Carnegie v.

2 Household Int'l , Inc., 376 F.3d 656, 661 (7th Cir.2004) (Posner, J.) (“it may be

3 that if and when the defendants are determined to have violated the law separate

4 proceedings of some character will be required”, but that “prospect need not defeat

5 class treatment”; after a liability determination favorable to the class, “a global

6 settlement … will be a natural and appropriate sequel”; and if not, “Rule 23 allows

7 … imaginative solutions,” including bifurcation of liability and damages,

8 appointing a magistrate judge or special master to preside over individual damages

9 proceedings, decertifying class for subsequent proceedings, and others) 6.

10

Bifurcation of liability and damage determinations is well recognized. See,

11 e.g., Chang v. U.S., 217 F.R.D. 262, 272 (D.D.C. 2003) (“district court, should, of

12 course, ordinarily consider such well-established methods as bifurcating the trial

13 into liability and damages phases before denying certification,” quoting McCarthy
v. Kleindienst, 741 F.2d 1406, 1415 (D.C.Cir. 1984) (citing cases)) (mass protest 14
case); Calvin v. Sheriff of Will County, 2004 WL 1125922, 5 (N.D.Ill. 2004) (strip 15
search class; “fact that damages may vary based on each plaintiff's mental state is 16
not, however, a sufficient reason to deny certification because the court may 17 bifurcate” liability and damages).7 18

19

20 6 Carnegie is a “signal…that the existence of individualized issues regarding damages does not spell doom for class certification (indeed, that is especially true
21 where the individualized claims are small).” Owner-Operator Independent Drivers

22 Ass'n, Inc. v. Allied Van Lines, Inc., 231 F.R.D. 280, 284 -85 (N.D.Ill. 2005). 7 As long as separate juries do not re-examine previously resolved fact
23 determinations, Rule 42(b) and the Seventh Amendment permit trials of individual,

24 discrete issues before separate juries. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 170 (2nd Cir. 2001); Mullen v. Treasure Chest Casino, LLC, 186
25 F.3d 620 (5th Cir. 1999). See also See, e.g., Equal Employment Opportunity

26 Commission v. McDonnell Douglas Corp., 960 F.Supp. 203, 205 (E.D.Mo.1996) (liability and damages issues bifurcated in ADEA case); McElroy v. Arkansas Log
27 Homes, Inc., 1989 WL 18755, 1 (D.Kan. 1989) (bifurcated issue of causation in

28

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1

In this case, there are several readily available approaches to damages

2 should settlement not be possible after a class-wide liability determination.

3

a) Classifying Damages

4

Damages could be tried as a whole, with the jury placing values on certain

5 categories of damages (e.g., the value of a strip search of a 1) first time arrestee, 2)

6 men versus women, 3) those who suffered particular psychological distress, 4)
7 those who were mentally ill, those who were searched under particularly difficult
8 circumstances, such as while menstruating, and the like). A grid could be
9 developed, and the jury could place values on these or other categories of damages.
10 Plaintiffs are not specifically proposing these categories, but use them as
11 illustrations. See, e.g., Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977) (damages 12 set by category: for false arrest based on categories of detention of up to 12 hours, 13 12-24 hours, 24-48 hours, and 48-72 hours; additional fixed amount of damages 14 for violation of First Amendment rights, cruel and unusual punishment, and
categories of malicious prosecution: court did not “think that determination of 15
damages in this case requires individualization”; instead, they “were fixed either 16
for the class as a whole or by subclass”); Allaptatah Services v. Exxon, 157 17
F.Supp.2d 1291, 1313 (S.D. FLA 2001) ("it is appropriate for the class 18
representatives to develop and prove common guidelines or formulae that will 19
apply for each individual proof of claims.") (citing Newberg, §10.01 and Hilao, v. 20
Estate of Marcos, 103 F.3d 767 (9th Cir. 1996)). 21

22

23

24 EPA case); Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, 587 F.Supp. 1112, 1117 (D.Del.1984) (patent infringement
25 bifurcated into liability and damages trials); Carroll-McCreary Co., Inc. v. New

26 Jersey Steel Corp., 1981 WL 2030 (E.D.N.Y. 1981) (no “neat dividing line” between the issues of liability and damages in antitrust case; bifurcation
27 permissible under Seventh Amendment).

28

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1

b) Bellwether Trials

2

Alternatively, the court could hold bellwether or test trials to aid settlement,

3 if the parties cannot agree. See, e.g., MCL, supra, §22.91, p.448 (“parties may

4 agree to use test-case trials to establish a range of value for resolving similar 5 claims”); In re Chevron, 109 F.3d 1016, 1019 (5th Cir. 1997) (notion that

6 bellwether trials may enhance settlement prospects or help resolve common

7 questions “is a sound one”); In re Methyl Tertiary Butyl Ether (MTBE) Products,

8 2007 WL 1791258 (S.D.N.Y. 2007) (ordering bellwether trials on representative

9 claims despite defendants’ objections).

10

c) Statutory Damages

11

In this case, individual damage issues may be obviated by the availability of

12 statutory minimum damages of $4,000 per violation under California’s Unruh Act,

13 Civil Code §52. Section 52 is the remedies section of the Act. Thus, although §52

14 itself only address certain violations of §51 (not including §52.1), §52.1(b)
expressly incorporates the remedy provisions of §52(a) making statutory damages 15
available for a violation of §52.1. When and if the stage of the litigation were 16
reached where a violation of §52.1 were determined, plaintiffs would then propose 17
that class members have the choice of accepting the statutory damages or opting
18 out, which would effectively eliminate the need to determine individual damages at

19 all.

20

The propriety of applying a pre-determined mathematical formula to class

21 compensatory damages is well-established. See, e.g., Six (6) Mexican Workers v.

22 Arizona Citrus Growers, 904 F.2d 1301, 1305-1306 (9th Cir. 1990) (where plaintiff

23 class sought statutory not actual damages, they were intended “to promote

24 enforcement” of the underlying statute [there the FLCRA] and “deter future

25 violations…. Therefore, the district court was not obligated to require individual

26 proof of injury from each class member.”); Windham v. American Brands, Inc.,

27 565 F.2d 59, 68 (4th Cir.1977).

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1

d) Statistical Methods of Determining Damages

2

The Ninth Circuit has endorsed the use of special and innovative methods to

3 allow a damages class to proceed, including specifically statistical sampling. Hilao

4 v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir. 1996) (class action against

5 Fernando Marcos for of torture, "disappearance," or summary execution that

6 occurred over a 14 year period based on randomly selected sample comports with

7 the historical understanding of both procedural and substantive due process). 8 See

8 also, e.g., Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc.,

9 113 F. Supp.2d 345, 372-376 (E.D.N.Y. 2000) and 2001 WL 1304370, p.43

10 (E.D.N.Y. 2001) (Weinstein, D.J.) (health plans could use statistical evidence in

support of their claim for damages due to unlawful conduct of Phillip Morris). 11

C. Manageability and the Role of Kern County’s Sheriff’s Database. 12

Because Kern County maintains a database which contains the essential 13
information in (a) determining class membership and (b) contacting class 14
members, there should be little or no manageability concerns in certifying this case

15 as a class action.

16

Lieutenant Dennis Smithson, the County’s Rule 30(b)(6) designee regarding

17 its inmate management system called the Criminal Justice Information System or

18 “CJIS”, testified that CJIS identifies every person presently in Kern County

19 Sheriff’s custody, identifies what criminal matters are pending against an inmate,

20 identify whether an inmate has any warrants or holds placed on him/her, identify

21 when an inmate is eligible for release. Smithson Depo., Ex. 10, pp.18:19-25 to

22

23

24 8 For an extensive analysis of statistical sampling, see Michael J. Saks and Peter David Blanck, Justice Improved: THE UNRECOGNIZED BENEFITS OF
25 AGGREGATION AND SAMPLING IN THE TRIAL OF MASS TORTS, 44 Stanford

26 Law Review 815 (1992); Laurens Walker & John Monahan, Sampling Damages, 83 Iowa L.Rev. 545 (1998) (“a complete solution of the numbers problem in mass
27 torts can only be achieved by ··· randomly sampling damages without apology.”).

28

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1 19:1-6. Using CJIS, one can generate a list of everyone who was held in custody

2 at a Kern County detention facility for a given period of time, and can further limit

3 that list, for example, to only felony bookings. Smithson Depo., Ex. 10, p.24:15-25

4 to 26:1-10. CJIS also allows to not only extract a record of all releases, but can also

5 identify the reason for a particular release. Smithson Depo., Ex. 10, p.28:13-15.

6

It is clear that all the information necessary to determine class membership

7 is maintained by the County in its computer records. In addition, plaintiffs have

8 retained the services of a statistical expert, Brian Kriegler, who has extensive

9 experience analyzing highly sensitive and confidential inmate data from law

enforcement databases in strip search cases, as he has acted as an expert for 10
Plaintiffs’ counsel in several strip search class actions for purposes of determining 11
class membership and ultimately class damages through statistical means (e.g., 12
using statistical sampling of class members as a basis for drawing conclusions 13
about the whole class). There should be little concern about manageability of this

14 case as a class action. See Declarations of Barrett S. Litt and Brian Kriegler.

15 VIII. CONCLUSION

16

For the foregoing reasons, plaintiffs respectfully request that the Court grant

17 their Motion for Class Certification.

18 Dated: June 16, 2008

Respectfully submitted,

19

LITT, ESTUAR, HARRISON

20

& KITSON, LLP

21

22

__/s/ Barrett S. Litt ________

Barrett S. Litt

23

Paul J. Estuar

24

Attorneys for Plaintiffs

25

26

27

28

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1
A PROFESSIONAL CORPORATION
2 Terence J. Cassidy, SBN 99180
Kristina M. Hall, SBN 196794
3 350 University Ave., Suite 200
Sacramento, California 95825
4 TEL: 916.929.1481
FAX: 916.927.3706
5
Attorneys for Defendant COUNTY OF KERN
6
Jennifer L. Thurston, Deputy SBN 191821
7 Office of the County Counsel
1115 Truxtun Avenue, Fourth Floor
8 Bakersfield, CA 93301
(661) 868-3800
9 (661) 868-3805 (Fax)

10 Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH
11

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14

15 MARSIAL LOPEZ, individually, and as class

representative,

16

Plaintiffs,

17

vs.

18

SHERIFF DONNY YOUNGBLOOD,

19 individually and in his official capacity;

FORMER SHERIFF MACK WIMBISH, in

20 his individual capacity, COUNTY OF KERN,

a governmental entity; KERN COUNTY

21 SHERIFF’S DEPARTMENT, a California

public entity; and DOES 1 through 100,

22

Defendants.

23

/

Case No. 07-0474 LJO DLB
DEFENDANTS JOINT MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Date: Time: Ctrm:

August 29, 2008 9:00 a.m. 9

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SACRAMENTO, CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6
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1

2

TABLE OF CONTENTS

3 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

A. General Description of KCSO Jail Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

B. Contraband in KCSO Facilities and Related Inmate Searches . . . . . . . . . . . . . . . 3

7 III. LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8 IV. PLAINTIFFS HAVE FAILED TO DEMONSTRATE ANY VIOLATION OF

THEIR FOURTH AMENDMENT RIGHTS ARISING OUT OF THE GROUP

9

STRIP SEARCHES BECAUSE THEY FAIL TO ESTABLISH ANY

LEGITIMATE EXPECTATION OF PRIVACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10

V. THE GROUP SEARCHES AT ISSUE DO NOT VIOLATE PLAINTIFFS'

11

RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12

VI. PLAINTIFFS' EQUAL PROTECTION CLAIM FAILS BECAUSE OF THE

13

INHERENT DIFFERENCES BETWEEN POST-ARRAIGNMENT DETAINEES

AND POST-SENTENCING PRISONERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

14

VII. PLAINTIFFS' STATE LAW CLAIMS FAIL AS A MATTER OF LAW . . . . . . . . . . . 16

15

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES

2 Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp.,

21 F.3d 237 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3

Beard v. Banks,

4

126 S. Ct. 2572 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5 Bell v. Wolfish,

441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

6

Celotex Corp. v. Catrett,

7

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

8 Calhoun v. Detella,

319 F.3d 936 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

9

City of Cleburne v. Cleburne Living Center,

10

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

11 Craft v. County of San Bernardino,

468 F.Supp.2d 1172 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

12

Demery v. Arpaio,

13

378 F.3d 1020 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

14 Depoali v. Carlton,

878 F.Supp. 1351 (E.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15

F.S. Royster Guano Co. v. Virginia,

16

253 U.S. 412 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17 Fernandez v. Rapone,

926 F.Supp. 255 (D.Mass 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

18

Franklin v. Lockhart,

19

883 F.2d 654 (8th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

20 Giles v. Ackerman,

746 F.2d 614 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

21

Hodgers-Durgin v. de la Vina,

22

199 F.3d 1037 (9th Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

23 Hoffman v. United States,

767 F.2d 1431 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

24

Hudson v. Palmer,

25

468 U.S. 517 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

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Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Johnson v. California, 543 U.S. 499 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

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1 Kahawaiolaa v. Norton,

386 F.3d 1271 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2

Kasky v. Nike, Inc.,

3

27 Cal. 4th 939 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4 Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5

Klinger v. Department of Corrections,

6

31 F.3d 727 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7 Koger v. Snyder,

252 F.Supp.2d 723 (C.D. Ill. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

9

475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

10 Michenfelder v. Sumner,

860 F.2d 328 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

11

Overton v. Bazzetta,

12

539 U.S. 126 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

13 Peckharn v. Wisc. Dept. of Corr.,

141 F.3d 694 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14

Pierce v. County of Orange,

15

526 F.3d 1190 (9th Cir. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16 Plyler v. Doe,

457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

17

Samaad v. City of Dallas,

18

940 F.2d 925 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

19 Sandin v. Conner,

515 U.S. 472 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

20

Thompson v. Souza,

21

111 F.3d 694 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

22 Turner v. Safley,

482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13

23

United States v. Cofield,

24

391 F.3d 334 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

25 United States v. Dawson,

516 F.2d 796 (9th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

26

United States v. Savage,

27

482 F.2d 1371 (9th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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ATTORNEYS 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
SACRAMENTO, CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6
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1 United States v. Van Poyck,

77 F.3d 285 (9th Cir. Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2

Way v. County of Ventura,

3

445 F.3d 1157 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4 Whitman v. Nesic,

368 F.3d 931 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5

Wynn v. Nat’l Broadcasting Co.,

6

234 F.Supp.2d 1067 (C.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

7 Zunker v. Bertrand, 798 F. Supp. 1365 (E.D.Wis. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8

9 Statutes

10 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

11 Cal. Civil Code § 52.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

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1

Defendants SHERIFF DONNY YOUNGBLOOD, FORMER SHERIFF MACK WIMBISH,

2 COUNTY OF KERN and its agency the KERN COUNTY SHERIFF’S OFFICE (incorrectly named

3 as KERN COUNTY SHERIFF’S DEPARTMENT) hereby jointly move for summary adjudication 4 and submit the following memorandum of points and authorities in support thereof.1

5

I.

6

INTRODUCTION

7

This is an action for class relief asserted by three Plaintiffs who claim that their constitutional

8 rights have been violated as a result of the conditions of their confinement. Specifically, Plaintiffs

9 allege, inter alia, that their rights under the Fourth and Fourteenth Amendments were violated when

10 they were purportedly subjected to visual body cavity searches at the same time as other prisoners

11 (hereinafter “group search”) while in the custody of the Kern County Sheriff’s Office (“KCSO”).

12 The undisputed evidence in this case establishes that the searches of Plaintiffs were constitutionally

13 sound and the fact that some may have occurred in small groups does not violate Plaintiffs’ rights.

14

Plaintiffs’ First Amended Complaint (“FAC”) asserts various claims for relief against

15 Defendants. In this motion, Defendants move for summary adjudication as to those claims asserted

16 under the Fourth and Fourteenth Amendments and state law specific to group searches. Defendants

17 base their motion on the clear and undisputed evidence establishing that Plaintiffs have not been

18 deprived of any constitutional rights, as well as overwhelming legal precedent establishing that group

19

20

1Defendants file this joint Motion for Summary Adjudication contemporaneous with their Opposition

21 to Plaintiffs’ Motion for Class Certification, pursuant to Eastern District Local Rule 78-230(e), which
provides:

22

Any counter-motion or other motion that a party may

23

desire to make that is related to the general subject matter

of the original motion shall be served and filed with the

24

Clerk in the manner and on the date prescribed for the

filing of opposition. In the event such counter-motion or

25

other related motion is filed, the Court may continue the

26

hearing on the original and all related motions so as to

give all parties reasonable opportunity to serve and file

27

oppositions and replies to all pending motions.

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In this Motion, Defendants seek to eliminate one of the proposed classes that Plaintiffs seek to certify. Thus, this motion is related to the general subject matter of the original motion.

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1 searches are not per se in violation of the Constitution as Plaintiffs contend.

2

II.

3

STATEMENT OF FACTS

4 A. General Description of KCSO Jail Facilities

5

KCSO jails have about 2,500 beds between four different facilities. Defs. Undisputed

6 Material Fact (“UMF”) 1. These facilities include Central Receiving Facility (CRF), Ridgecrest,

7 Mojave, and Lerdo. UMF 2. Lerdo is divided into four different divisions: pretrial, maximum-

8 medium (“max-med”), female minimum and male minimum. UMF 3. The average total inmate

9 population per day is 2,300. UMF 4. Generally the status of the inmate population house at the

10 Lerdo facilities is, at a minimum, post-arraignment. UMF 65.

11

The main function of CRF is booking and receiving arrestees coming straight off the street.

12 UMF 5. Since at least 2003, pre-arraigned misdemeanor arrestees at CRF were not subject to strip

13 searches on a routine basis, either before or after their first court appearance, such as arraignment.

14 UMF 6.

15

In the other KCSO jail facilities, such as Lerdo, inmates are housed based upon their

16 classification. UMF 7. Each inmate’s classification is determined by a multitude of factors

17 including, but not limited to, gang affiliation; mental and medical status; conduct while at the

18 facility; past conduct while incarcerated, whether at Lerdo or at a different facility; and, the nature

19 of the charges that caused them to be in custody. UMF 8.

20

The inmate population housed at Lerdo has exploded in recent years and the facilities cannot

21 be used as originally intended. UMF 9. The various Lerdo facilities were originally intended to

22 function as their names describe. UMF 10. Over time, the Lerdo facilities have been forced to

23 house inmates together according to the security risk that each inmate poses and the other

24 classification factors cited above, rather than merely whether an inmate has not been tried, for

25 example. UMF 11. Thus, the name of the particular Lerdo facility does not determine where the

26 inmate is housed nor does it necessarily accurately describe the security risk or type of inmate housed

27 there. UMF 12. At the Lerdo Max-Med facility, there are two blocks of 17 cells that house one

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inmate per cell. UMF 13. These single cells contain a toilet. UMF 14. The toilet in each cell

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1 does not have any provision for privacy and the view of the cell contents and the toilet is open to

2 anyone passing in the corridor in front of the cells, including other inmates and custodial staff. UMF

3 15. In these cell blocks, there are two shower cells that each allows showering by one inmate at a

4 time. UMF 16. Like the toilet, these showers are open to the view of anyone passing through the

5 corridor outside of the cell. UMF 17.

6

Other than these two blocks of cells at the Max-Med facility, there are two tiers of cells,

7 approximately 14 cells, that house between six and twelve inmates. UMF 18. Each cell has a toilet

8 for use by the inmate assigned to the cell. UMF 19. There is no provision for privacy in these cells

9 and toileting is done within full view of other inmates. UMF 20. The remaining “cells” are

10 dormitory style which house up to 31 inmates. UMF 21. Like the other cells, the toileting

11 provisions are open to view by other inmates and custodial staff. UMF 22. Similarly, the shower

12 facilities are “gym-style” in which there are two walls of shower heads within the shower room

13 which allow multiple inmates to shower at the same time. UMF 23. As a result, showering and

14 undressing/dressing is done within the view of other inmates. UMF 24.

15

At the Lerdo Minimum facilities, inmates are housed “barracks style.” UMF 25. Each of

16 these barracks houses approximately 41 inmates. UMF 26. Although the toilets and showers are

17 situated in separate rooms connected to the barracks, toileting and showering – including dressing

18 and undressing related to showering – occur within the view of the other inmates who are present

19 in the toilet or shower room. UMF 27.

20

Inmates are not permitted to leave their housing assignment for the purpose of using a toilet

21 in a different area unless the inmate had a medical issue that required it and then the inmate’s

22 housing assignment would likely be changed to the medical clinic. UMF 28. However, other than

23 a medical reason, an inmate would not be permitted to leave their housing unit to use a preferred

24 toilet elsewhere. UMF 29.

25 B. Contraband in KCSO Facilities and Related Inmate Searches

26

Inmate possession of contraband is an extreme problem for all of the KCSO jail facilities.

27 Within the last five years, approximately 915 inmates in the Lerdo facility have been found guilty

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of violating the facility rule that prohibits inmates from making or possessing contraband that poses

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1 a hazard to health, safety, or facility security. UMF 30. The contraband located commonly includes

2 drugs, weapons, and escape tools. UMF 31. Additionally, approximately 986 inmates have been

3 found guilty of violating the facility rules prohibiting other types of contraband. UMF 32. These

4 statistics cannot demonstrate the deterrent effect of searches, since inmates were less likely to move

5 or carry contraband when they knew they were going to be strip searched. UMF 33. Since

6 September of 2007, strip searches has discovered inmate possession of contraband in approximately

7 22 incidents. UMF 34.

8

Procedure D of KCSO Policy C-500 specifies that persons in the general inmate population

9 (not pre-arraignment detainees) “may be subjected to a strip search or visual body cavity search in

10 the following situations: after leaving and then returning to the facility (i.e., medical appointment,

11 court, etc.); after completing their assigned duties inside or outside the facility and returning to their

12 housing area; after any contact visit; and, if an officer has a reasonable suspicion that they are

13 concealing a weapon or contraband and that a strip search or visual body cavity search will result in

14 discovery of the weapon or contraband.” UMF 35. Inmates are subject to strip searches when they

15 return from court appearances because they mingled with other inmates from their housing unit,

16 other units and other Lerdo jail facilities on the transport bus and while at court. UMF 36. Given

17 the amount of contraband that was discovered at the jail facilities, KCSO officers believe that

18 inmates frequently obtain this contraband as a result of the court contact. UMF 37. For example,

19 inmates somehow obtain portions of latex gloves, in particular the fingers of the gloves, and use the

20 latex to envelope contraband. UMF 38. The inmates then place the contraband in their rectums for

21 transport back to the Lerdo facility. UMF 39. The reasonable belief regarding the source of

22 contraband in KCSO jails is supported by the sworn testimony of Plaintiff Marsial Lopez, who

23 testified that sometimes when the inmates who were returning from court were strip searched,

24 officers discovered contraband on their person hidden in pieces of a latex gloves. UMF 40. Even

25 then, despite being strip searched, Lopez testified that inmates were still sometimes able to get

26 contraband into the jail facility. UMF 41.

27

Failure to locate contraband possessed by KCSO prisoners has proven to have potentially

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life-threatening consequences. In a widely publicized incident in 2007, convicted mass-murderer

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1 managed to secrete a fabricated handcuff key in his hair during a visit to court. UMF 42. This key

2 was discovered during a strip search of his person. UMF 43. In another incident, a murder suspect

3 was strip searched related to a court appointment in May of 2007. UMF 44. A razor blade was

4 discovered in his shoe. UMF 45. In May of 2008, this same inmate was transported to a hospital

5 without being strip searched. UMF 46. He produced a stolen handcuff key, removed his restraints,

6 and fled. UMF 47. He was recaptured by deputies, but not before he broke into an occupied

7 apartment in an attempt to evade the pursuit. UMF 48.

8

By March 2005, the jail population had grown to such an extent that the available man-power

9 had been outstripped by the size of the population. UMF 49. To meet the other staffing/security

10 needs of the various facilities, frequently as few as one or two detention deputies were available to

11 conduct strip searches at any given time. UMF 50. Other operations could not be scheduled around

12 court returns because the timing and number of inmates returning to a particular Lerdo facility was

13 unpredictable. UMF 51. In addition, the limited space at the Lerdo facilities, dictated that

14 individual searches could not occur in a timely fashion. UMF 52. This would have meant that,

15 while the individual searches were occurring, the rest of the inmates had to wait in holding cells.

16 UMF 53. This problem was complicated further by the fact that inmates of different housing

17 classifications could not be held together to await their search due to the probability of violence that

18 this would incite. UMF 54. Commingling inmates outside of their classifications would have been

19 a safety risk to the inmates and a threat to the internal security of the facility. UMF 55. Even

20 commingling inmates of the same classification in close quarters for the amount of time required to

21 conduct the individual searches would have posed the potential for a violent exchange which was

22 a threat to the security of the jail. UMF 56. Additionally, in most cases, those inmate who had been

23 searched would also have to be placed in separate holding cells, segregated by classification, or staff

24 would have to be assigned to individually escort each searched inmate back to his/her housing unit.

25 UMF 57. Thus, to individually strip search each inmate returning from court would effectively

26 require a doubling of the already limited holding cells or enough staff to individually escort each

27 searched inmate back to his/her housing unit. UMF 58.

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1

Therefore, the sheer number of inmates that were transported to and from various

2 appointments outside of the Lerdo facility on a daily basis, meant there was no way to conduct

3 individual strip searches in a timely fashion. UMF 59. For example, individual searches of inmates

4 returning from court, would have taken hours to complete. UMF 60.

5

Generally, the point of entry at the Lerdo facility for any inmate transported to the Lerdo

6 Minimum facility for housing for the first time or after attending court is a room known as “Gate 1.”

7 UMF 61. From March 2005 through October 2007 generally, no more than about 20 to 25 inmates

8 were searched at Gate 1. UMF 62. From March 2005 through October 2007, when inmates were

9 returned to their housing assignment at the Pretrial facility generally no more than about 10 to 15

10 inmates were searched at one time. UMF 63. From March 2005 through October 2007, when

11 inmates were returned to their housing assignment at the Max-Med facility generally no more than

12 about 5 to 7 inmates were searched at one time. UMF 64.

13

III.

14

LEGAL STANDARD

15

If there are no genuine issues of material fact and the moving party is entitled to judgment

16 as a matter of law, then the court must make an order granting movant’s motion for summary

17 judgment. Fed. R. Civ. P. 56(c).

18

[A] party seeking summary judgment always bears the

initial responsibility of informing the district court of

19

the basis for its motion and identifying those portions

of “the pleadings, depositions, answers to

20

interrogatories and admissions on file, together with

the affidavits, if any,” which it believes demonstrate

21

the absence of a genuine issue of material fact.

22 Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).

23

Once a movant’s initial burden is met, the burden shifts to the opponent, who must then

24 produce specific facts beyond the pleadings and show the existence of genuine disputes of material

25 fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The opposing

26 party cannot establish disputed material facts by relying on allegations in his or her pleadings, but

27 must tender admissible evidence showing the genuineness of the dispute regarding material issues.

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Depoali v. Carlton, 878 F.Supp. 1351, 1357 (E.D. Cal. 1995). Summary judgment should be granted

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1 “so long as whatever is before the district court demonstrates that the standard for entry of summary

2 judgment, set forth in Rule 56(c) is satisfied.” Celotex, 477 U.S. at 323.

3

The moving party need not present any evidence on those matters where the opposing party

4 will have the burden of proof at trial. Id. at 325. With respect to claims for which the opposing party

5 bears the ultimate burden of proof, the moving party’s burden is met by demonstrating the absence

6 of evidence supporting the opposing party’s claim. Id. “[A] complete failure of proof concerning

7 an essential element of the non-moving party’s case necessarily renders all other facts immaterial.”

8 Id. at 322. To demonstrate a genuine issue, the opposing party,

9

must do more than simply show that there is some

metaphysical doubt as to the material fact ... where the

10

record taken as a whole could not lead a rational trier

of fact to find for the non-moving party, there is no

11

“genuine issue for trial.”

12 Matsushita, 475 U.S. at 586.

13

IV.

14

PLAINTIFFS HAVE FAILED TO DEMONSTRATE ANY VIOLATION

OF THEIR FOURTH AMENDMENT RIGHTS ARISING OUT OF THE

15

GROUP STRIP SEARCHES BECAUSE THEY FAIL TO ESTABLISH

ANY LEGITIMATE EXPECTATION OF PRIVACY

16

17

Prisons and detention facilities are “places of involuntary confinement of persons who have

18 a demonstrated proclivity for anti-social criminal, and often violent, conduct. Inmates have

19 necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards

20 of society by the normal impulses of self-restraint; they have shown an inability to regulate their

21 conduct in a way that reflects either a respect for law or an appreciation of the rights of others.”

22 Hudson v. Palmer, 468 U.S. 517, 526 (1984). Indeed, the courts recognize that jails and prisons are

23 places of confinement that necessarily result in a prisoner’s loss of freedom of choice and privacy.

24 Bell v. Wolfish, 441 U.S. 520, 537 (1979); Peckharn v. Wisc. Dept. of Corr., 141 F.3d 694, 696-697

25 (7th Cir. 1998); Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995); Bell v. Wolfish, 441 U.S. 520,

26 559 (1979). In Hudson, the Supreme Court clarified reasonable expectations of privacy in a

27 penological setting, holding that “society is not prepared to recognize as legitimate any subjective

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expectation of privacy[.]” 468 U.S. at 526. An intrusion by jail officials pursuant to a rule or policy

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1 with a justifiable purpose of imprisonment or prison security is not violative of the Fourth

2 Amendment. United States v. Dawson, 516 F.2d 796, 805-806 (9th Cir.), cert. denied, 423 U.S. 855

3 (1975); United States v. Savage, 482 F.2d 1371, 1373 (9th Cir.), cert. denied, 514 U.S. 932 (1973).

4

While the Fourth Amendment prohibits searches which are unreasonable, the Supreme Court

5 has held that the reasonableness of a challenged search in the prison context is dependant upon a

6 balancing between the rights of prisoners against the need for the particular search. Bell, 441 U.S.

7 at 559; see Hudson, at 527 (determining whether an expectation of privacy is “legitimate” or

8 “reasonable” necessarily entails a balancing of interests). Among the factors considered are “the

9 scope of the particular intrusion, the justification for initiating it, and the place in which it is

10 conducted.” Id. Although the Ninth Circuit Court of Appeals has recognized that prisoners retain

11 limited rights to bodily privacy under the Fourth Amendment, those rights must be determined in

12 reference to the prison context. Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (internal

13 quotations omitted) (citing Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988)).

14 Moreover, in achieving an acceptable balance between prison security and rights of prisoners, courts

15 are deferential to the experienced judgment of prison administrators. See, e.g., Sandin v. Conner,

16 515 U.S. 472 (1995); Turner v. Safley, 482 U.S. 78, 85 (1987); Bell, 441 U.S. at 540 n.27, 547.

17 As observed by the Supreme Court in Bell:

18

[M]aintaining institutional security and preserving

internal order and discipline are essential goals that

19

may require limitation or retraction of the retained

constitutional rights of both convicted prisoners and

20

pretrial detainees. “[Central] to all other corrections

goals is the institutional consideration of internal

21

security within the corrections facilities themselves.”

Prison officials must be free to take appropriate action

22

to ensure the safety of inmates and corrections

personnel and to prevent escape or unauthorized entry.

23

Accordingly, we have held that even when an

institutional restriction infringes a specific

24

constitutional guarantee ... the practice must be

evaluated in the light of the central objective of prison

25

administration, safeguarding institutional security.

26 441 at 546-47.

27

Given such security concerns, it is reasonable and not unconstitutional for jail officials to

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conduct regular strip searches of detainees involving visual body-cavity inspections . Bell, 441 U.S.

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1 at 558-560. Thus, a prisoner claiming a constitutional violation arising out of a strip search has a

2 “heavy burden” of proving (1) that a strip search was not rationally related to a legitimate security

3 interest, and (2) that it was conducted in a harassing manner intended to humiliate and inflict

4 psychological pain. Bell, 441 U.S. at 561-62; Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004);

5 Calhoun v. Detella, 319 F.3d 936, 939 (7th Cir. 2003).

6

Here, Plaintiffs cannot satisfy the first element of their burden of proof because the facts

7 establish that there were legitimate, identifiable security reasons to conduct visual body searches in

8 groups. The body searches clearly were done with penological justification and KCSO had and

9 continues have the responsibility of holding inmates and other prisoners in custody pending trial as

10 well as after sentencing. This responsibility includes the need to maintain safety and order for both

11 the inmates and the staff of each facility. Defendants have proffered clear evidence regarding the

12 necessity of security for conducting the searches themselves as well as conducting the searches in

13 small groups. The undisputed facts clearly establish that in the last five years, approximately 1,900

14 inmates in KCSO custody have been found guilty of having some type of prohibited contraband.

15 The undisputed facts also establish that since September 2007, KCSO has discovered contraband

16 possessed by 22 inmates as a result of the strip searches. Indeed, the sworn testimony of Plaintiff

17 Lopez corroborates the fact that prisoners were able to pass contraband after being out of the facility

18 for court appearances. Thus, increased vigilance remains essential in order to discover and deter any

19 activity involving contraband. Defendants have also provided herein specific examples of extremely

20 dangerous inmates who were found with contraband when strip searched, as well as the

21 consequences of what happens when inmates are not strip searched. Thus, because KCSO had

22 legitimate security reasons for the body searches, the searches had penological justification and

23 cannot be found to be unconstitutional. See Bell, 441 U.S. at 558-62; Peckham, 141 F.3d at 695, 697;

24 Koger v. Snyder, 252 F.Supp.2d 723, 725-26 (C.D. Ill. 2003).

25

Plaintiffs also cannot demonstrate that the searches, as conducted in a group, were excessive

26 in their performance or that they amounted to calculated harassment unrelated to jail needs and done

27 with the intent to humiliate and inflict psychological pain. Whitman, 368 F.3d at 934. The

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undisputed facts establish that the severe personnel limitations in conjunction with security concerns

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1 warrant that the best means for officers to conduct the searches and to maintain institutional security

2 were to conduct the searches in small groups. In a matter similar to this case, the plaintiffs in

3 Fernandez v. Rapone, 926 F.Supp. 255 (D.Mass. 1996), also alleged that their constitutional rights

4 had been violated because they had been strip searched in front of other inmates and officers. See

5 id. at 262. There, the court noted that in the prison setting, inmates share cells with other prisoners

6 and shower with fellow inmates. Id. Likewise, the defendants contended, and the court agreed, that

7 “[t]hroughout the day, the inmates, ‘whether dressing, bathing or even defecating,’ are observed by

8 fellow inmates and male and female correction officers.” Id. Accordingly, the “defendants properly

9 maintain that standing naked within the possible view of other inmates for a brief period of time is

10 ‘hardly shocking or unreasonable in light of the vital security interest [the searches seek] to preserve

11 against the backdrop of day to day prison life.’” Id. Therefore, the District Court concluded “that

12 the fact that plaintiffs were often searched in the presence of other inmates being searched [did] not

13 render the searches unreasonable.” Id.

14

Similarly, in Zunker v. Bertrand, 798 F. Supp. 1365 (E.D.Wis. 1992), the district court held

15 that an inmate's “privacy interest in not having other inmates view the strip searches [did not

16 outweigh] the security interests of the prison [and, therefore,] as a matter of law…even if other

17 inmates observed plaintiff being strip searched, his constitutional rights were not violated.” Id. at

18 1370; see also United States v. Cofield, 391 F.3d 334, 337(1st Cir. 2004) (strip search in hallway

19 near booking desk was not unconstitutional); Franklin v. Lockhart, 883 F.2d 654 (8th Cir. 1989)

20 (upholding constitutionality of visual body cavity searches in a hallway within view of inmates in

21 nearby cells and in passageway in groups of four); Thompson, 111 F.3d at 701 (9th Cir. 1997)

22 (rejecting plaintiff’s claim that the strip searches should have been conducted out of the view of other

23 prisoners, in a more private location).

24

Defendants note that the district court in Craft v. County of San Bernardino, 468 F.Supp.2d

25 1172 (C.D. Cal. 2006), took a different view in regard to the group search issue. However, the fact

26 that the searches at issue in Craft occurred in group settings was only one of the factors the court

27 considered in reaching its decision. Id. The decision was limited to those pre-arraignment prisoners

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who were strip searched before being transferred to another unit and arrestees returning from court

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1 who had been found to be entitled to release. Id. at 1180. In Craft, it was the policy of the detention

2 facility to strip and/or visual body cavity search all arrestees (including those booked on non-violent,

3 non-drug related charges) prior to arraignment, regardless of individualized suspicion to conduct the

4 strip and/or visual body cavity search on the arrestee. Id. at 1174. The defendants in Craft contended

5 that the searches were necessary for security reasons, but the court disagreed, stating that evidence

6 the defendants provided showed only two discoveries of contraband in nearly two years. Id. The

7 evidence provided by Defendants also did not specify whether the discoveries were made pursuant

8 to a search of a pre-arraignment transferee (the group at issue in the case), or of some other group.

9 See id.

10

More important, the binding precedent of the Ninth Circuit has rejected the argument that

11 strip searches must be conducted in a private place outside of view of other inmates. Thompson, 111

12 F.3d at 701 (9th Cir. 1997); Michenfelder, 860 F.2d at 333. The Craft court, by comparison, relied

13 almost exclusively on Way v. County of Ventura, 445 F.3d 1157 (9th Cir. 2008), to conclude that

14 the group strip searches in San Bernardino County were improper. However, Way, like Craft, also

15 is distinguishable. The Ninth Circuit in Way recognized the intrusive nature of the strip search, just

16 as it did in Thompson, and also recognized “the difficulty of operating a detention facility safely, the

17 seriousness of the risk of smuggled weapons and contraband, and the deference we owe jail officials’

18 exercise of judgment in adopting and executing policies necessary to maintain institutional security.”

19 Id. at 1161 (citing Wolfish, 441 U.S. at 546-47). However, unlike here, the Defendants in Way

20 “failed to show any link between their blanket strip search policy and legitimate security concerns[.]”

21 Id. Instead, the defendants “made only a conclusory submission that the purpose of the search

22 protocol is ‘to provide facility security and to ensure the inmate's health and safety[.]’” Id. By

23 comparison, the Way court noted that evidence in the record in Wolfish established detainees’

24 attempts to secrete money, drugs, weapons and other contraband in body cavities. Id.; see Wolfish,

25 at 559.

26

This case is easily distinguishable from both Craft and Way. Here, the Court is not asked

27 to consider searches of pre-arraignment detainees; rather, the searches pertain to post-arraignment

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and in some cases post-conviction and sentenced inmates. Moreover, as discussed above, the

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1 undisputed facts clearly establish 1) the need to conduct the searches; and, 2) the need to conduct the

2 searches in small groups. Certainly, the undisputed facts establish the success that has been realized

3 in preventing the introduction of contraband into the KCSO jail facilities through strip searches. The

4 facts also establish that the staffing limitations coupled with the ever-increasing inmate population

5 and their related security risk require that the optimal means for corrections officers to conduct the

6 searches and to maintain institutional security for staff and inmates were to conduct the searches in

7 small groups. Thus, the group strip searches do not violate the Fourth Amendment rights of

8 Plaintiffs or any other inmate incarcerated in KCSO custody and Defendants’ Motion for Summary

9 Adjudication in this regard should be granted.

10

V.

11

THE GROUP SEARCHES AT ISSUE DO NOT VIOLATE

PLAINTIFFS’ RIGHTS UNDER THE DUE PROCESS

12

CLAUSE OF THE FOURTEENTH AMENDMENT

13

In Bell, the Supreme Court enunciated the appropriate legal standard for evaluating the

14 constitutionality of a strip search involving a post-arraignment detainee. 441 U.S. at 535. “[U]nder

15 the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in

16 accordance with due process of law.” Id. The inquiry for purposes of the Fourteenth Amendment

17 protection in Bell requires the court to determine whether there was an express intent to punish, or

18 “whether an alternative purpose to which [the strip search] may rationally be connected is assignable

19 for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Id. at

20 538 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). Absent evidence of

21 express punitive intent, the Ninth Circuit has noted that “to constitute punishment, the harm or

22 disability caused the government’s action must either significantly exceed, or be independent of, the

23 inherent discomforts of confinement.” Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004).

24

Here, as discussed at length above in regard to Plaintiffs’ Fourth Amendment claim, there

25 are no facts to suggest that any of the Plaintiffs were strip searched as a means for punishment –

26 whether they were searched alone or while in a small group. The rational basis for conducting the

27 strip search is permitted for security concerns as a matter of law. The need for these searches to be

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conducted as a group in light of the staff constraints proportionate to inmate population. There are

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1 no facts to indicate that strip searching inmates in front of other inmates was punishment, nor can

2 it be said that the group searches significantly exceed the inherent discomforts of confinement,

3 particularly where inmates regularly observe each other showering and toileting due to the standard

4 conditions of incarceration. Thus, Defendants’ practice of searching of inmates in small groups does

5 not violate Plaintiffs’ constitutional rights under the Fourteenth Amendment and Defendants

6 respectfully request that their Motion for Adjudication should be granted as a matter of law.

7

VI.

8 PLAINTIFFS’ EQUAL PROTECTION CLAIM FAILS BECAUSE OF THE INHERENT

DIFFERENCES BETWEEN POST-ARRAIGNMENT DETAINEES AND POST-

9

SENTENCING PRISONERS

10

Any alleged differential treatment between post-arraignment detainees and pre-arraignment

11 detainees is not unconstitutional. The Equal Protection Clause of the Fourteenth Amendment

12 commands that no state shall deny any person the equal protection of the laws. City of Cleburne v.

13 Cleburne Living Center, 473 U.S. 432 (1985). As a result, “all persons similarly circumstanced shall

14 be treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S. Royster Guano Co. v.

15 Virginia, 253 U.S. 412, 415 (1920)).

16

Generally, when state action is challenged on equal protection grounds, either strict scrutiny

17 or the rational basis analysis is applied. Hoffman v. United States, 767 F.2d 1431, 1434 (9th Cir.

18 1985). Strict scrutiny applies when the state’s classification is alleged to have been made on

19 “suspect” grounds such as race, ancestry, alienage, or categorizations impinging upon fundamental

20 rights such as privacy, marriage, voting, travel, and freedom of association. Id. at 1434-35. When

21 no suspect class is involved and a fundamental right has not been burdened, a rational basis test to

22 determine the legitimacy of the state's classifications is appropriate. Kahawaiolaa v. Norton, 386

23 F.3d 1271, 1277-78 (9th Cir. 2004).

24

While strict scrutiny has been applied to prison classifications based on a suspect class, such

25 as race, the Supreme Court has not concluded that the burdening of prisoners’ fundamental rights

26 in subject to the same. Johnson v. California, 543 U.S. 499 (2005). In Turner, supra, the Supreme

27 Court held that when “a prison regulation impinges on inmates’ constitutional rights, the regulation

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is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89. As discussed

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1 above, the reasonable-relationship test is applicable only to those rights which are “inconsistent with

2 proper incarceration.” Johnson, 543 U.S. at 510 (quoting Overton v. Bazzetta, 539 U.S. 126, 131

3 (2003)). Accordingly, imprisonment permits the greater restriction of constitutional rights than

4 would otherwise be valid and many constitutional rights enjoyed prior to incarceration are curtailed

5 or lost upon imprisonment. Beard v. Banks, 126 S. Ct. 2572, 2577-78 (2006); Overton, 539 U.S. at

6 128.

7

Nevertheless, with respect to the extent of curtailment of privacy rights, the Ninth Circuit has

8 concluded it does not violate the Constitution for such limitations to be same for pretrial detainees

9 as for convicted inmates. United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. Cal. 1996) (citing

10 Bell). The only difference between the two groups for purposes of evaluation under the Constitution

11 is that pretrial detainees are protected by the Fourteenth Amendment’s Due Process Clause, as well

12 as specific substantive guarantees of the federal Constitution, such as the Eighth Amendment. Under

13 the Due Process Clause, detainees have a right against jail conditions or restrictions that “amount

14 to punishment.” Bell, 441 U.S. at 535-37. This standard differs from the standard relevant to

15 convicted prisoners only with respect to that fact that convicted prisoners may be subject to

16 punishment so long as it does not violate the Eighth Amendment’s bar against cruel and unusual

17 punishment. Id. at 535 n.16; see Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. Cal.

18 2008). In other words, under Van Poyck, it is constitutionally acceptable to treat these two groups

19 essentially the same as to infringement on privacy. In contrast, the Ninth Circuit also has specifically

20 addressed the lawfulness of strip searches in cases involving pre-arraignment arrestees: “arrestees

21 for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion

22 that the particular arrestee is carrying or concealing contraband or suffering from a communicable

23 disease.” Giles v. Ackerman, 746 F.2d 614. 615 (9th Cir.1984) (per curiam) (overruled on other

24 grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 (9th Cir.1999) (en banc)). Factors

25 such as “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record”

26 determine reasonable suspicion. Giles, 746 F.2d at 617.

27

Here, Plaintiffs’ claim regarding any type of disparate treatment based on prisoner status fails

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as a matter of law. Plaintiffs overlook the most fundamental aspect of a claim asserted under the

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1 Equal Protection Clause: that the comparison must be between “persons similarly circumstanced.”

2 Plyler, 457 U.S. at 216. Dissimilar treatment of dissimilarly situated persons does not violate equal

3 protection. See Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 242 (8th

4 Cir. 1994). Thus, the first step in an equal protection case is determining whether the plaintiff has

5 demonstrated that he was treated differently than others who were similarly situated to him. See, e.g.,

6 Samaad v. City of Dallas, 940 F.2d 925, 940- 41 (5th Cir. 1991). Absent a threshold showing that

7 he is similarly situated to those who allegedly receive different treatment, the plaintiff does not have

8 a viable equal protection claim. Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.

9 1994).

10

There can be no debate that pre-arraignment arrestees and post-arraignment prisoners are not

11 similarly situated and therefore the long-standing legal distinctions between the two groups do not

12 violate any tenet of Equal Protection. The critical difference lies in the fact that members of the first

13 group are brought in off the street and await a hearing and formal charges; without reasonable

14 suspicion of possession of contraband or violent tendencies that would constitute a security risk to

15 the jail or staff, there is no grounds for which members of this group may be searched. However,

16 as to post-arraignment prisoners, a court of law has found, already probable cause to charge them

17 with a specific crime. They are returned to the custody of the jail pursuant to court order, where the

18 limitations on their privacy are as diminished as they would be for convicted prisoners in light of

19 their ability to commingle with other members of the general jail population. Further, post-

20 arraignment prisoners are often removed from the secure setting of the jail where, unlike pre-

21 arraignment arrestees who are just entering the jail, they are able to obtain contraband. Furthermore,

22 because post-arraignment prisoners will remain in jail, they have a greater incentive to smuggle in

23 contraband from outside the facility. There simply is no way as a fundamental matter of law to

24 equate these two groups of prisoners for purposes of equal protection, nor have the courts seen fit

25 to do so.

26

In addition, Plaintiff’s allegations regarding the inequality of Penal Code section 4030 must

27 fail. Section 4030 applies only “only to prearraignment detainees arrested for infraction or

28
PORTER * SCOTT
ATTORNEYS 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
SACRAMENTO, CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6
www.porterscott.com

misdemeanor offenses.” Pen. Code § 4030. In other words, Section 4030 was enacted to regulate

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1 booking searches – i.e., the searches to which all arrestees are subjected regardless of whether they

2 will be released after booking. Specifically, Penal Code section 4030(f) prohibits strip searching an

3 individual arrested on a misdemeanor offense not involving weapons, controlled substances or

4 violence “prior to placement in the general jail population” unless a peace officer has determined that

5 there is reasonable suspicion that the individual is concealing contraband. Cal.Penal.Code §4030(f).

6 Here, Plaintiffs have abandoned their claims regarding certification of strip searches of pre-

7 arraignment detainees because the evidence clearly demonstrates that such searches simply did not

8 happen. The evidence further establishes that only post-arraignment prisoners were ever subjected

9 to strip searches, whether alone or in a group. Because Section 4030 by its terms applies only to

10 arrestees who are strip searched before arraignment, the claims asserted by Plaintiffs or any party

11 they purport to represent as part of a class who were strip searched in groups fails as a matter of law.

12 Moreover, even if Plaintiffs believe that section 4030 is in some way unfair, it is the clear intent of

13 the California Legislature to limit the protections of the statute to a specific class of people. Unless

14 the State Legislature amends Section 4030, its applicability is limited by its terms only to

15 prearraignment detainees – which were undisputedly never searched in a group setting while in

16 KCSO custody. See Wynn v. Nat’l Broadcasting Co., 234 F.Supp.2d 1067, 1112 n.37 (C.D. Cal.

17 2002) (“In the context of statutory construction, a court’s goal is to discern the apparent legislative

18 intent, not to adopt a judicial construction to give that provision the meaning the court might believe

19 most salutary.”) (citations omitted).

20

Thus, Plaintiffs’ Equal Protection Clause claim as to persons alleging group strip searches

21 must fail and Defendants request that their motion in this regard be granted.

22

VII.

23

PLAINTIFFS’ STATE LAW CLAIMS FAIL AS A MATTER OF LAW

24

Plaintiffs must demonstrate an underlying violation of state or federal law in order to prevail

25 on their claims for violation of California Civil Code section 52.1. See Cal.Civ.Code §52.1. As set

26 forth throughout this Motion, Plaintiffs cannot establish an underlying violation of a constitutional

27 right and/or Penal Code section 4030. Therefore, Defendants respectfully submit that there is no

28
PORTER * SCOTT
ATTORNEYS 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
SACRAMENTO, CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6
www.porterscott.com

evidence to establish a violation of California Civil Code section 52.1 and, therefore, respectfully

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1 request that the court enter judgment as a matter of law on the claims arising out of California Civil

2 Code section 52.1 with respect to the group search putative class.

3

In addition, for the same reasons that Plaintiffs’ group search-related claims fail under the

4 federal constitution, they also fail under the California Constitution. See Kasky v. Nike, Inc., 27 Cal.

5 4th 939, 969 (2002) (in claims asserted under the California Constitution, however, the California

6 Supreme Court often uses the analysis framed by the United States Supreme Court in interpretation

7 of analogous provisions of the federal constitution). Thus, Plaintiffs’ judgment should be granted

8 to Defendants with respect to the group search claims asserted under the California Constitution, as

9 well.

10

VIII.

11

CONCLUSION

12

Based on the foregoing, Defendants SHERIFF DONNY YOUNGBLOOD, FORMER

13 SHERIFF MACK WIMBISH, COUNTY OF KERN and KERN COUNTY SHERIFF’S OFFICE

14 respectfully request that their joint Motion for Summary Adjudication of the federal claims

15 pertaining to persons alleging group strip searches while in KCSO custody be granted.

16

Respectfully submitted,

17 Dated: July 17, 2008 18

PORTER SCOTT A PROFESSIONAL CORPORATION

19

By /s/ Terence J. Cassidy

Terence J. Cassidy

20

Attorney for Defendants

COUNTY OF KERN

21

22 Dated: July 17, 2008

B.C. BARMANN, SR., COUNTY COUNSEL

23

24

By /s/ Jennifer L. Thurston

Jennifer L. Thurston, Deputy County Counsel

25

Attorney for Defendants

COUNTY OF KERN, its agency the

26

KERN COUNTY SHERIFF’S OFFICE,

DONNY YOUNGBLOOD and MACK

27

WIMBISH

28
PORTER * SCOTT
ATTORNEYS 3 5 0 U N IV E R S IT Y A V E ., S U IT E 2 0 0
SACRAMENTO, CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6
www.porterscott.com

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

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 Case 1:07-cv-00474-DLB Document 64 Filed 11/07/08 Page 1 of 27

1 PORTER I SCOTT

A PROFESSIONAL CORPORA nON

2 Terence J. Cassidy, SBN 99180
Kristina M. Hall, SBN 196794

3 350 University Ave., Suite 200
Sacramento, California 95825

4 TEL: 916.929.1481
FAX: 916.927.3706

5
Attorneys for Defendant COUNTY OF KERN

6

Jennifer L. Thurston, Deputy SBN 191821

7 Office of

the County Counsel

1115 Truxtun Avenue, Fourth Floor

8 Bakersfield, CA 93301

(661) 868-3800
9 (661) 868-3805 (Fax)

10 Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF'S

11 " OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH
1211 UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14

15 MARSIAL LOPEZ, individually, and as class representative,
16
Plaintiffs,
17 I
vs.
18
SHERIFF DONNY YOUNGBLOOD, 19 individually and in his official capacity;
FORMR SHERIFF MACK WIMBISH, 20 in his individual capacity, COUNTY OF
KERN, a governmental entity; KERN
21 COUNTY SHERIFF'S DEPARTMENT, a California public entity; and DOES i
22 through 100,

Case No. 07-0474 LJO DLB

DEFENDANTS' JOINT MOTION FOR
SUMl\IARY ADJUDICATION
REGARDING COURT RETURNEES,
QUALIFIED IMMUNITY AND
ELEVENTH AMENDMENT IMMUNITY

Date: Time: Ctrm:

December 19, 2008
9:00 a.m.
9

23

Defendants.

/

24

25

26

27

28
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1

TABLE OF CONTENTS

2 i. 3 II. 4 III.
5 iv.
6
7
V.
8
9
10
11

INTRODUCTION ................................................. 1
FACTS................... . ...... ....... . ........ .... . .. . ........2
LEGAL STANDARD. . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . . . . .4
THE CONSTITUTIONAL CLAIMS OF THE PUTATIVE CLASS OF COURT RETURNEES WHO ARE SEARCHED MUST FAIL BECAUSE PLAINTIFFS CANNOT PROVE THE EXISTENCE OF A CONSTITUTIONAL VIOLATION
UNDER MONELL ................................................. 5
THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY AS TO PLAINTIFFS' CONSTITUTIONAL CLAIMS. . . . . . . . . . 7
A. Defendants Youngblood and Wimbish are Entitled to Qualified Immunity in
Regard to the Issue of Group Searches ............................ 8
1. Qualified immunity should be applied to the Fourth Amendment claims specific to the group searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12

2. Qualified immunity should be applied to Plaintiffs' Fourteenth

Arnendment claims specific to the group searches . . . . . . . . . . . . . . 9

13
3. Defendants Youngblood and Wimbish are entitled to qualified

14

immunity in regard to Plaintiffs' equal protection claims ....... 1 1

15

B. Defendants Youngblood and Wimbish Are Entitled to Qualified Immunity

Regarding the Searches of Detainees upon Return from Court Appearances

16

after They Were Ordered Released .............................. 12

17 VI.
18 19
20
21
22 23 24

THE SHERIFF IN HIS OFFICIAL CAPACITY is A POLICEMAKER FOR THE STATE OF CALIFORNIA, NOT THE COUNTY OF KERN, AND THUS is IMME FROM SECTION i 983 LIABILITY PURSUANT TO THE ELEVENTH
AMENDMENT .................................................. 12

A. The California Constitution, California Law and the Judicial Interpretation
Thereofby California Courts Support the Conclusion That, in this Instance, the
Sheriff in His Official Capacity Acts on Behalf of the State of California 12

B. The Rulings of

the Ninth Circuit Court of Appeals Analyzing McMilian as to

California Sheriffs Fail to Follow McMilian's Requirement of

Deference to

the Rulings of the California Supreme Court Regarding Determination as to

Whether a Defendant Acts on Behalf of the State or the County for Purposes

of Eleventh Amendment Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

25 VII. THE COUNTY OF KERN is AN IMPROPER PARTY TO THIS ACTION .. 20

26 VIII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21

27

28
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11

Case 1:07-cv-00474-DLB Document 64 Filed 11/07/08 Page 3 of 27

1

TABLE OF AUTHORITIES

2 Antoine v. Byers & Anderson, Inc. 408 U.S. 429 (1991) ............................................... 19
3
4 8B8ab4coFck .v2. Tdyl4er97 (9th Cir. 1989) ........................................ 19

5 Bell v. Wolfish
441 U.S. 520, 559 (1979) ..................................... 6, 7, 9, 10
6
Bishop Paiute Tribe v. County ofInyo
7 275 F Jd 893 (9th Cir. 2002) .................................. 17, 18, 19

8 Booker v. Horton
2005 U.S. Dist. LEXIS 15825 (W.D. Ky. 2005) .......................... 9
9
10 B8r4andCt va. BLoAarpd pof.S3udper5vi9so8rs (1978) .......................................... 14

11 Brewster v. Bd. OfEduc. Of

Lynwood Unified Sch. Dist. I

12 " 149 F.3d 971 (9th Cir. 1998) .................,"',................... 8 I
Brewster v. Shasta County
13 275 F.3d 803 (9th Cir. 2001) .................................. 17, 18, 19

14 Ceballos v. Garcetti 361 f.3d 1168 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15
16 C4e7lot7exUCo.rSp v.. 3Ca1tr7ett (1986) ....................,.,.......................4,5

17 City of Canton v. Harris
489 U.S. 378 (1989) .............................................. 5,6
18
City of los Angeles v. Heller 19 475 U.S. 796 (1986) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

20 County of

Los Angeles v. Superior Court (Peters) 68 Cal.AppAth 1166 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . , . , . . . . . . . . . . . . 20

21

22 C5o2un3tyUof.SSac.ra8m3en3to (v1. L9ew9i8s ) ............................................. 7, 10

23 Coverdell v. Dep't of Social & Health Servs.
834 F.2d 758 (9th Cir. 1987) ........................................ 17
24
Demery v. Arpaio
25 378 F.3d 1020 (9th Cir. 2004) ....................................... 10

26 Depoali v. Carlton
878 F.Supp. 1351 (E.D. CaL. 1995) .................................... 5
27
28 F5r7ancFesc.h3idv. S8c2hw8ar(tz9th Cir. 1995) ......................................... 19
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II

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1 Harlow v. Fitzgerald
457 U.S. 800 (1982) ................................................ 7
2
3 5H3op6e vU. P.eSlze.r 730 (2002) ................................................ 8

4 Hughes v. City of

Louisvile

2007 U.S. Dist. LEXIS 23055 (W.D. Ky. 2007) .......................... 9

5
6 1H1yl7anFd .v3. Wdo4n0de5r (9thCir. 1997) ........................................13

7 Jacintoport C0Zt' V. Greater Batton Rouge Port Comm'n
762 F.2 435 (5th Cir. 1985) ........................................ 19
8
9 5K2ali2naUv. .FSlet.ch1er18 (1997) ............................................... 19

10 Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.

11 I 475 U.S. 574 (1986) ................................................ 51
I lvlclvíiHian v. Monroe County i 12 I 520 U.S. 781 (1997) .............................. 6, 13, 14, 15, 18, 19,20 I
13 McNeely v. County of Sacramento 2008 U.S. DIST. LEXIS 12460, 12 (E.D. CaL. 2008) . . . . . . . . . . . . . . . . . . . 16, 17
14
15 M3i3le5r vF. G.3amdm8i8e 9(9thCir.2003) ........................................19

16 Mitchell v. Forsyth
472 U.S. 511 (1985) ................................................ 7
17
18 M4o3n6ellUv..DSep.t.6O5f S(o1ci9al7S8er)vi.c.e.s........,',......................... 5,6,7, 13,20

19 Oviatt v. Pearce
954 F.2d 1470 (9th Cir. 1992) ........................................ 6
20
21 P4em7b5auUr v.. SCi.ty4of6C9inc(in1n9ati86) ................................................ 5

22 Pitts v. County of

Kern

17 Cal.4th 340,358 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18,20

23

24 P5o4w1ellFv..3Badrre1tt298 (1Ith Cir. 2008) ..................................... 6,9

25 Redding v. Safford Unified Sch. Dist. #1
531 F.3d 1071 (9th Cir. 2008) ........................................ 8
26
Richerson v. Lexington Fayette Urban County Govt. 27 958 F.Supp. 299 (E.D. Ky. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 Rivero v. City & County of San Francisco

PORTER SC OTT

316 F .3d 857 (9th Cir. 2002) ......................................... 7

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Case 1:07-cv-00474-DLB Document 64 Filed 11/07/08 Page 5 of 27

1 Saucier v. Katz
533 U.S. 194 (2001) .............................................. 7,8
2
3 5Si0eg0ertUv..GSil.ey226 (1991) ................................................ 7

4 Smith v. County of San Mateo
1999 U.S. DIST. LEXIS 13253 (N.D. CaL. 1999) ........................ 17
5
Sonnier v. Los Angeles County District Attorney's Office
6 33 Fed. Appx. 252 (9th Cir. 2002) .................................... 18

7 Streit v. County of

Los Angeles

236 F.3d 552 (9th Cir. 2001) ............................... 15, 16, 18, 19

8
9 5Sw1in4t vU. C.hSam.b3ers5Co(u1nt9y 9Co5m)m.o.n...............................................7

i Virgil v. GEbert i 10 Venegas v. County of

Los Angeles

11 I 32 Cal.4th 820 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14, 15, 18, 19,20 I

1211 272 F.3d 391 (6th Cir. 2001) ......................................... 9 I

13 Weiner v. County of

San Diego

210 F .3d 1025 (9th Cir. 2000) ....................................... 19

14
Wil v. Michigan Dep't. Of State Police

15

491 U.S. 58 (1989) ................................................ 13

16 Statutes

17 California Const. Art. V, § 13 .......................................... 14, 15

18 CaL. Govt. Code § 12524 ................................................ 14
19 CaL. Govt. Code § 12560 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13 20 CaL. Govt. Code § 26600 ............................................. 14, 15

21 CaL. Govt. Code § 26601 ............................................. 14, 15 22 CaL. Govt. Code § 26602 ............................................. 14, 15

23 CaL. Govt. Code § 26605 ............................................. 14, 15 24 CaL. Govt. Code § 29602 ................................................. 14 25 CaL. Penal Code § 4000 ................................................. 15 26 CaL. Penal Code § 4004 ................................................. 17 27 CaL. Penal Code § 4015 .................................................. 14 28 CaL. Penal Code § 4030 .................................................. 11
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Fed. R. Civ. P. 56(c) ................................................... 4, 5
2 Section 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. passim
3
4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21
22 23 24 25 26 27 28
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Vi

Case 1:07-cv-00474-DLB Document 64 Filed 11/07/08 Page 7 of 27

1 Defendants SHERIFF DONNY YOUNGBLOOD, FORMER SHERIFF MACK WIMBISH,

2 COUNTY OF KERN and its agency

the KERN COUNTY SHERIFF'S OFFICE (incorrectly

named

3 as KERN COUNTY SHERIFF'S DEPARTMENT) hereby jointly move for summary adjudication
5 I. 4 and submit the following memorandum of points and authorities in support thereof.
6 INTRODUCTION

7 In this second Motion for Summary Adjudication, Defendants move for judgment regarding

8 the claims of certain Plaintiffs, who contend that their constitutional rights were violated when they

9 were subjected to strip searches after returning to the jail following a court appearance in which they

10 were ordered bv the court to be released. Similar to the other searches in this case that Plaintiffs have

11 challenged, th~ undisputed evidence relevant to this motion clearly establishes that the searches of I
i
12 these Plaintiffs upon their return to the jail from an outside, unsecure setting was reasonable and

13 appropriate in light of

the security needs related to having to place the detainees back in the jail's

14 general population for holding during the delay between the time the detainees were returned to the

15 jail and when the jail finally received the court order directing their release from custody.

16 Defendants also move for judgment on behalf of individual Defendants Y oungblood and
17 Wimbish. Defendants maintain their position, as stated in their first Motion for Summary

18 Adjudication, that searching post-arraignment detainees in small groups does not violate Plaintiffs' 19 rights under the Fourth and Fourteenth Amendments, nor do these searches violate the Equal

20 Protection Clause simply because California law prohibits similar searches from being conducted

21 as to pre-arraignment arrestees. However, to the extent that any question may exist as to the

22 constitutionality of these security-based practices, Defendants Youngblood and Wimbish are 23 immune from liabilty because the law is not clearly established that such practices violate 24 constitutional rights.

25 Finally, Defendants' motion also pertains to the status of the Sheriff as a State actor with

26 respect to the searches of detainees whom the court has ordered to be released. The actions at issue

27 II in this lawsuit are directly tied to the statutory mandate the State has issued to the Sheriff as to

28 enforce the laws of the State of California. Moreover, in holding these inmates, the Sheriff acts on

PORTER SCOTT
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1
DEFENDANTS' MSA RE: QUALIFIED IMMUNITY AND ELEVENTH AMENDMENT
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1 behalf of the State of California because he is beholden to the Superior Cour in awaiting its
2 disposition of each detainee's case. In so doing, the Sheriff stands in place of the State of California

3 in maintaining custody of these detainees such that he is immune from suit in this matter pursuant
4 to the Eleventh Amendment. Because the Sheriff is a state actor, none of the actions at issue in

5 regard to this particular putative class can be attributed to the County and therefore the County
6 should be dismissed from this action in that regard as an improper party.
7 Based upon the clear evidence and legal precedent discussed herein, Defendants respectfully
190 IFIAC.TS 8 request that their Motion for Summary Adjudication in regard to these enumerated issues be granted.

11 Inmates housed at the Lerdo facility of the Kern County Jail ("jail") are required to be
12 transported to one of the Kern County Superior Court locations to appear regarding the criminal

13 charges against them. See Defendants' Joint Separate Statement of Undisputed Material Facts

14 (UMF), UMF 1. Hundreds of inmates are transported to court each day from the Lerdo facility.

15 UMF 2. Sometimes at a cour appearance, the court orders that the inmate should be released. UMF

16 3. Reasons for the release may include release on the inmate's own recognizance, posting bailor

i 7 complete dismissal of

the criminal charges. UMF 4. However, when the court orders the inmate to

18 be released, it does so only on the matter or matters before it. UMF 5. In other words, the court does

19 not consider other reasons or cases that the inmate may be in custody. UMF 6. Therefore, an order

20 of release does not necessarily mean that the inmate may be released from custody at that time. UMF
21 7.

22 When the court issues an order of

release, the clerk of

the court enters the court's order into

23 the local computerized Criminal Justice Information System ("CJIS"), as well as the reason for the

24 order of

release. UMF 8. The clerk may enter the order at any time before the end of

the clerk's

25 work day. UMF 9. Almost always, the inmate has returned to the Lerdo facility before the clerk has

26 entered the order into CJIS. UMF 10. The Detention Deputies who transport the inmates to and from

27 the court are not aware of

the court's orders regarding release because they do not provide courtroom

28 security. UMF 11. After the clerk enters the information, CJIS creates a "flag" on the inmate's CJIS

PORTER SCOTT 2

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1 record. UMF 12. However, for jail staff

to locate the flag, they must run a C,JIS search to pull the

2 records with the specific, court-entered flag. UMF 13. Generally, jail staff runs the report hourly to

3 determine which of

the inmates have a flag that indicates that the court has ordered the inmate to be

4 released on the charge on which the inmate appeared. UMF 14.
5 Once jail staff runs the CJIS search for the inmates ordered released by the court, each of
6 these inmate records must be checked to determine whether there are other reasons for the inmate 7 to remain in jaiL. UMF 15. Reasons for holding the inmates after a court-ordered release on a

8 particular criminal case may include the existence of other ongoing criminal cases, holds or warrants.
9 UMF 16. To conduct this check, the local CJIS system must be searched, as well as the statewide

10 computer system, the California Law Enforcement Telecommunications System (known as

11 I "CLETS"). UMF 17. Ifit is determined that there is no other basis for the inmate to be retained in
i
1211 the jail, then the inmate is released. UMF 18.

13

Because of the time delay between the inmates' return from court and the court clerk's entries

14 of the release orders, there was no way for the custodial staff to know which of the inmates were

15 going to be released following to their appearances in court. UMF 19. Moreover, there was no way

16

for the j ail custodial staff

to know which of those inmates that were ordered to be released would not,

17 in actuality, be eligible for release. UMF 20. As a result, inmates returning from court had to be re-

18 housed in the jaiL. UMF 21. Inmates had to be re-housed at the jail for numerous reasons. As stated,

19 there was no way to know at the time that the inmates returned to Lerdo from their court appearances

20 who would ultimately be released from custody. UMF 22. In addition, the Lerdo facility has no way

21 to temporarily segregate and house the large number of inmates who are transported to and from

22 court each day. UMF 23. To segregate and temporarily house the inmates returning from court, the

23 Lerdo facility would have to have sufficient holding cells for each classification of prisoner because

24 inmates of different housing classifications cannot be held together; commingling of different

25

classifications poses a safety risk to the inmates and a threat to the internal security of

the facility.

26 UMF 24. For example, members of opposing gangs cannot be housed together due to the likelihood

27 of ensuing violence. UMF 25. Even commingling inmates of the same classification in close

28
PORTER SCOTT
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quarters for the amount of

time that is required to determine whether an inmate may be released from

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1 custody poses the potential for a violent exchange between inmates, which is a serious threat to the

2 jaiL. UMF 26. In addition, as explained in Defendants' first motion, there is insuffcient

jail staffing

3 to provide even the minimum amount of security necessary for any such "temporary" housing unit.

4 UMF 27.

5 When the inmates were transported to and from the court, they had contact with other inmates

6 from their jail unit, other units and other Lerdo facilities on the transport bus and while at the

7 courthouse. i UMF 28. Given the amount of contraband that the jail's custodial offcers find, they

8 have reasonably concluded that the contraband is largely obtained as a result ofthe contact with other

9 inmates during the court transports. UMF 29. For example, inmates somehow obtain portions of

10 latex gloves, in particular the fingers of the gloves, and use the latex to envelop contraband. UMF

11 1130. Inmates commonly place the contraband in their rectums for transport back to the Lerdo facility.

1211 UMF 31. However, inmates also hide contraband in or on other areas of

their bodies while at court.

13 UMF 32. For example, in a widely publicized incident in 2007, convicted mass-murderer Vincent

14 Brothers managed to secret a fabricated handcuff key in his hair during a visit to court. UMF 33.

15 This key was discovered during a strip search of his person. UMF 34. This example serves to

16 ilustrate that because of contact between inmates, it was necessary to strip searched the inmates
18 III. 17 upon their return to the jaií prior to being re-housed. UMF 35.
19 LEGAL STANDARD

20 If there are no genuine issues of material fact and the moving party is entitled to judgment

21 as a matter of law, then the court must make an order granting the movant's motion for summary

22 judgment. Fed. R. Civ. P. 56(c).

23 (AJ party seeking summary judgment always bears the initial responsibility of

informing the district court of

the basis for its motion and identifying those portions

24 of "the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any," which it believes demonstrate the absence of a

25 genuine issue of material fact.

26 Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).

27 28
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i As explained in Defendants' first Motion for Summary Adjudication, the Lerdo jail is divided into four
different facilities. 4
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1 Once a movant's initial burden is met, the burden shifts to the opponent, who must then
2 produce specific facts beyond the pleadings and show the existence of genuine disputes of material

3 fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The opposing

4 part cannot establish disputed material facts by relying on allegations in his or her pleadings, but

5 must tender admissible evidence showing the genuineness of

the dispute regarding material issues.

6 Depoali v. Carlton, 878 F.Supp. 1351, 1357 (E.D. CaL. 1995). Summary judgment should be granted
7 "so long as whatever is before the district court demonstrates that the standard for entry of summary 8 judgment, set forth in Rule 56(c) is satisfied." Celotex, 477 U.S. at 323.

9 The moving part need not present any evidence on those matters where the opposing party

10 wil have the burden of proof at trial. Id, at 325, With respect to claims for which the opposing party

11 bears the ultimate burden of proof, the moving party's burden is met by demonstrating the absence

12 I of evidence supporting the opposing party's claim. Id. "(A J complete failure of proof concerning

13 an essential element of

the non-moving party's case necessarily renders all other facts immateriaL."

14 Id. at 322. To demonstrate a genuine issue, the opposing party,

15 must do more than simply show that there is some metaphysical doubt as to the
material fact... where the record taken as a whole could not lead a rational trier of
16 fact to find for the non-moving party, there is no "genuine issue for triaL."
18 iv. 17 Matsushita, 475 U.S. at 586.

19 THE CONSTITUTIONAL CLAIMS OF THE PUTATIVE CLASS OF COURT

RETURNEES WHO ARE SEARCHED MUST FAIL BECAUSE PLAINTIFFS

20 CANNOT PROVE THE EXISTENCE OF A CONSTITUTIONAL

VIOLATION UNDER

MONELL

21

22 The County of Kern is not liable for the actions of its employees which result in violations

23 of constitutional rights unless the conduct is pursuant to an offcial government policy or custom.

24 Monell v. Dept. of

Social Services 436 U.S. 658 (1978); see Pembaur v. City of

Cincinnati

475 U.S.

25 469 (1986). Municipalliability under § 1983 can only be established where the plaintiff shows that

26 (1) he was deprived of his constitutional rights; (2) the municipality has a policy; (3) the policy

27 II amounts to deliberate indifference to plaintiff s constitutional rights; and (4) the policy is the moving

28 force behind the constitutional violation. City of

Canton v. Harris 489 U.S. 378, 389-91 (1989); see

PORTER SCOTT 5

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1 Oviatt v. Pearce 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting Canton and analyzing Monell

2 liability). However, where the policy relied upon is not itself unconstitutional, considerably more
3 proof than the single incident wil be necessary in every case to establish both the requisite fault on

4 the part of a municipality and the causal connection between the "policy" and the constitutional

5 deprivation. McMilian v. Monroe County 520 U.S. 781, 823-24 (1997).

6 "(WJhere exposure to the general public presents a very real danger of contraband being
7 passed to a detainee, a policy of strip searching the detainees upon their return from the courthouse
8 and prior to their being placed back in the general population ofthe detention center is bothjustified

9 and reasonable." Richerson v. Lexington Fayette Urban County Govt. 958 F.Supp. 299, 307 (E.D.

10 Ky. 1996). "The test of reasonableness under the Fourth Amendment is not capable of precise

11 II definition or mechanical application. In each case, it requires a balancing of the need for the
II
12 II particular search against the invasion of personal rights that the search entails. Courts must consider

13 the scope of the particular intrusion, the manner in which it is conducted, the justification for

14 initiating it, and the place in which it was conducted." Bell v. Wolfish 441 U.S. 520,559 (1979).

15 It is well-established that it is appropriate to search inmates when they retur from anywhere that is

16

outside the secure setting of

the detention facility. See

Powell v. Barett 541 F.3d 1298. 1313 (11 th

17 Cir. 2008) (en banc) (observing that, if a detainee had "been strip searched after contact visits ... their

18 claims would not have a prayer of surviving even the most cursory reading of BelL. ").

19

Plaintiffs cannot establish that they sustained any violation oftheir constitutional rights with

20 respect to Plaintiffs' proposed class regarding those prisoners who appear in court, are ordered

21 released by the court and are returned to the jail, where they are strip searched. Neither the

22 corrections offcers escorting the detainees to and from the courthouse nor the offcers stationed in

23 the jail facility know whether a detainee has been ordered released at the time the detainee returns

24 to the jail, requiring that the returning detainees are placed back into jail general population until

25 further information is received later in the day. As established in Defendants' first motion for

26 summary adjudication, the Kern County jail is full and the inmate-to-staff ratios have become

27 increasingly imbalanced; further, space in the jail is extremely limited. The jail has concluded that

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its best option to maintain immediate security needs is to place all prisoners back into the general
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1 population until proper notification of release is received from the court. Because the prisoners wil

2 be sent back to general population, internal security needs mandate that all inmates be searched so
3 that contraband is not introduced into the facility. Indeed, it is only appropriate and necessary that

4 all inmates returning to the jail be strip searched before they are placed back into the general

5 population. This is the only means by which Defendants can locate any of the contraband that
6 undisputedly exists and which the inmates may have obtained while outside the facility and prevent

7 it from being passed to other detainees within the jaiL. Accordingly, pursuant to Bell, the search is

8 reasonable and does not violate the constitutional rights of

the inmates as a matter oflaw. Whereas

9 Plaintiffs canot establish the existence of a constitutional violation, their claims against the County

10 must fail as a matter oflaw. See City of

Los An~eles v. Heller 475 U.S. 796 (1986) (per curiam).

11 Therefore, Plaintiffs' claim in this regard fail and the City is entitled to judgment as a matter oflaw I

12 " in regard to the § 1983 claims asserted against it. Thus, pursuant to Monell, the County requests that I

13 its motion in regard to the court-returnee class be granted.

14

V.

15 THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY AS TO PLAINTIFFS' CONSTITUTIONAL CLAIMS
16

17

Qualified immunity is not merely a defense to liability but an immunity from suit. Swint v.

18 Chambers County Common 514 U.S. 35,42 (1995); Mitchell v. Forsyth 472 U.S. 511, 526 (1985).

19 Public offcials are entitled to qualified immunity for acts that do not violate "clearly established

20

. . . constitutional rights of

which a reasonable person would have known." Harlow v. Fitzgerald 457

21

U.S. 800, 817-18 (1982); Rivero v. City & County of

San Francisco 316 F.3d 857, 863 (9th Cir.

22 2002). When considering a defendant's motion for summary judgment on the ground of qualified

23 immunity, the court first must determine whether the offcial's conduct violated a constitutional

24 right. Saucier v. Katz 533 U.S. 194,201 (2001).2 If so, the court next must consider whether the

25 right claimed to be violated was clearly established at the time of the allegedly improper act. Id. If

26 27 28
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2" A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is

'clearly established' at the time the defendant acted is the determination of whether the plaintiff

has asserted

a violation of a constitutional right at alL." County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)

(quoting Siegert v. Giley, 500 U.S. 226, 232 (1991)).
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1 the right was clearly established, then the court must then inquire whether, despite this fact, the
2 official's unconstitutional conduct was a reasonable mistake of fact or law. Id. at 199. If so, then
3 summary judgment must be granted on the grounds of qualified immunity.
4 A right is "clearly established" for qualified immunity purposes when the contours of the

5 right are "suffciently clear that a reasonable offcial would understand that what he is doing violates

6 that right." Saucier, 533 U.S. at 202. To determine whether qualified immunity applies, the court

7 must consider the application of

the right in the specific context in question. See Redding v. Safford

8 Unified Sch. Dist. #1, 531 F.3d 1071, 1087 (9th Cir. 2008); Brewster v. Bd. ofEduc. of

Lynwood

9 Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998). In other words, "in the light of

pre-existing

10 law the unlawfulness must be apparent." HOJ2e v.Pelzer, 536 U.S. 730, 739 (2002) (citations

11 I omitted) (emphasis added). Thus, in order to find that the law was clearly established, the court must

12 " "determine whether the preexisting law provided the defendants with 'fair warning' that their

13 conduct was unlawfL." Id. at 741 (citations omitted).

14 A.
15 16

Defendants Youngblood and Wimbish are Entitled to Qualified Immunity in Regard to the Issue of Group Searches
1. Qualified immunity should be applied to the Fourth Amendment claims specific to the group searches.

17 In their first Motion for Summary Adjudication, Defendants moved for judgment with respect

18 to all claims ofthe putative class pertaining to strip searches of post-arraignment detainees in small

19 groups. In that Motion, Defendants noted that there is no clearly established case law that specifically

20 proscribes the use of group strip searches of post-arraignment detainees.3 Indeed, in their Opposition

21 to that Motion, Plaintiffs were unable to identify any case that specifically prohibited group searches

22 of post-arraignment detainees. Thus, there is no basis for finding that Defendants' actions were

23 unconstItutional and Plaintiffs' claims in this regard therefore must fail as a matter of law.
24 III 25 III

26

27 28
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3Defendants incorporate by reference their legal arguments and case law cited in their Motion for Summary
Adjudication as to the group search issue (Docket No. 37), as well as their Reply (Docket No. 58) to the Opposition to the Motion, as though fully restated herein.
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1

Assuming arguendo the court concludes that group strip searches of post-arraignment

2 detainees may violate the constitution, Defendants are nevertheless entitled to qualified immunity.

3 There is no extant legal precedent that "point(s) unmistakably to the unconstitutionality of the

4 conduct complained of and (is) so clearly foreshadowed by applicable direct authority as to leave no

5 doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional groups,

6 would be found wanting." Virgili v. Gilbert 272 F.3d 391,393 (6th Cir. 2001). In fact, a recent \
7 case from the Western District of Kentucky specifically granted qualified immunity to individual

8 officers arising out of claims of groups strip searches, finding that there was no clearly established

9

law that would prohibit the searches. Hughes v. City of

Louisville

2007 U.S. Dist. LEXIS 23055

10 (W.D. Ky. 2007);4 see Bookerv. Horton 2005 U.S. Dist. LEXIS 15825 (W.D. Ky. 2005) (same); see

11 I also Powell v. Barrett supra 541 F .3d 1298 (policy or practice of strip searching, including full body

i

121 visual searches in group settings, of

jail detainees before booking into general population complied

13 with Fourth Amendment as long as search was no more intrusive than the one upheld by the

14

Supreme Court in Bell and did not require a finding of

reasonable suspicion that the detainee might

15 be concealing contraband). It is apparent that there is no clearly established law that would have

16

placed Defendants Youngblood and Wimbish on notice that conducting searches of

post-arraignment

17 detainees in small groups would violate any aspect of the Constitution. Accordingly, Defendants

18 Youngblood and Wimbish are entitled to qualified immunity in regard to this aspect of Plaintiffs'

19 First Amended Complaint and Defendants therefore request that their motion pertaining to this claim

20 be granted.

21

2. Qualified immunity should be applied to Plaintiffs' Fourteenth Amendment

claims specific to the group searches

22

23 As also discussed in Defendants' Motion and Reply, there is no legal support for Plaintiffs'

24 claim that Defendants' practice in search procedures violates the Due Process Clause. As

25 Defendants noted, Bell, 441 U.S. at 535. Bell requires the court to determine whether there was an

26 27 28
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4As sometimes happens when a defense of qualified immunity is raised, the district court in Hughes

apparently failed to consider the threshold issue of

whether the group searches were unconstitutional in the

(Footnote 4 cont'd.) first instance. Instead, the court simply concluded that there was no legal precedent to indicate that such searches were impermissible or improper and therefore granted qualified immunity.

9

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1 express intent to punish, or "whether an alternative purpose to which (the strip search) may rationally

2 be connected is assignable for it, and whether it appears excessive in relation to the alternative

3 purpose assigned (to it)." Bell 441 U.S. at 538. Absent evidence of express punitive intent, the Ninth

4 Circuit has noted that "to constitute punishment, the harm or disability caused the governent's

5 action must either significantly exceed, or be independent of, the inherent discomforts of

6

confinement." Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004). Similar

to Plaintiffs' Fourth

7 Amendment Claim, there simply are no facts to suggest that any ofthe Plaintiffs were strip searched

8 as a means for punishment - whether they were searched alone or while in a small group. The

9 rational basis for conducting the strip search is permitted for security concerns as a matter of law.

10

The need for these searches to be conducted as a group in light of

the staff constraints proportionate

11 I to inmate population. There are no facts to indicate that strip searching inmates in front of other

121 inmates was punishment, nor can it be said that the group searches significantly exceed the inherent

13 discomforts of confinement. Therefore, because there is no constitutional violation of Plaintiffs'

14 rights, no further legal inquiry is necessary for purposes of qualified immunity. See County of

15 Sacramento v. Lewis, supra.

16

Assuming arguendo the Court determines that a question exists as to whether a constitutional

17 violation occurred in conjunction with the group searches, Defendants Youngblood and Wimbish

18 also are entitled to qualified immunity in regard to this claim. Again, as with Plaintiffs' Fourth

19 Amendment claim, there is no clearly established law that would have placed these Defendants on

20 notice that performing the searches in small groups would violate the Fourteenth Amendment rights

21 of their prisoners. There is no clear legal precedent that would have indicated to Youngblood and

22 Wimbish that small-group searches significantly exceeded or were independent of the "inherent

23 discomforts" of confinement. Demery 378 F.3d at 1030. Without such clear legal directives, notice

24 of any wrongdoing cannot be imputed to these Defendants and they therefore are entitled to qualified

25 immunity as a matter of law.

26 1/1

27 /11

28
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III
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1

3. Defendants Youngblood and Wimbish are entitled to qualified immunity in

regard to Plaintiffs' equal protection claims

2

3 In their first Motion for Summary Adjudication, Defendants addressed Plaintiffs' contention

4 that the treatment of post-arraignment detainees as compared to pre-arraignment arrestees with

5 respect to strip searches violated the Equal Protection Clause. In that regard, Plaintiffs never

6 asserted assert that Defendants violated Section 4030, nor can they do so. Indeed, Section 4030

7 applies only "only to prearraignment detainees arrested for infraction or misdemeanor offenses."
8 CaL. Penal Code § 4030. Section 4030 was enacted to regulate booking searches - a fact which

9 Plaintiffs failed to refute or even address in their Opposition to Defendants' Motion. As stated in

10 Defendants' prior Motion, the undisputed evidence establishes that only post-arraignment prisoners

11 were ever subjected to strip searches, whether alone or in a group; because Section 4030 applies only
i
12 II to arrestees who are strip searched prior to arraignment, the claims asserted by Plaintiffs or any party

13 they purport to represent as part of a class in this regard fails as a matter of law. Moreover, as

14 Defendants noted in their first Motion, Plaintiffs have failed to establish the fudamental legal

15 requirements to support an Equal Protection claim: post-arraignment detainees are not similarly

16 situated to pre-arraignment arrestees and any differential treatment was not based on their

17 membership in a legally protected class. Finally, Defendants clearly demonstrated that any group

18 searches survive rational basis review and do not violate the detainees' constitutional rights.

19

However, assuming arguendo the court concludes that a constitutional violation may exist

20 as to any differential treatment, Defendants Youngblood and Wimbish are entitled to qualified

21 immunity with respect to Plaintiffs' Equal Protection Clause claim. It was not and is not clearly

22 established that differentiating search procedures and practices between pre-arraignment arrestees

23 and post-arraignment detainees is unconstitutional or otherwise improper. In fact, the California

24 State Legislature established the basis for any difference in treatment between these two groups when

25 it enacted California Penal Code Section 4030, which, by its plain language applies to and provides

26 protections only to pre-arraignment misdemeanant arrestees. Section 4030 has never been declared

27 unconstitutional and therefore Defendants reasonably and justifiably relied on the distinctions

28
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between prisoner groups provided for therein. Moreover, there is no legal precedent that would have
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1 placed Defendants notice that such differentiation in searches was unconstitutionaL. Without any

2 clear legal guideposts to define these parameters, Defendants Youngblood and Wimbish are entitled
3 to qualified immunity as a matter of law and therefore request that their motion in this regard be

4 granted.

5 B.
6

Defendants Youngblood and Wimbish Are Entitled to Qualified Immunity Regarding the Searches of Detainees upon Return from Court Appearances after They Were
Ordered Released

7 Assuming arguendo the court finds a question of fact as to whether the searches of the

8 returning detainees is constitutional, Defendants Youngblood and Wimbish nevertheless are entitled

9 to qualified immunity. There is no clearly established case law that would have placed Youngblood

10 and/or Wimbish on notice that this protocol was in any way unconstitutionaL. All relevant case law

11 reflects that searches of inmates returning to a detention facility from outside its secure setting are

12 reasonable as a means of

preventing introduction of contraband into the facility. Moreover, there

13 is no clearly established law that requires that a detention facility know the status of detainees

14 returning from court or that they somehow be segregated and held indefinitely until their status is

15 conclusively determined. Without any applicable legal requirements stating that the established

i 6 practices of the KCSO are unconstitutional, Defendants Youngblood and Wimbish had no way to

17 know that their policies would violate clearly established law. Thus, these individual Defendants

18 respectfully submit that they are entitled to qualified immunity as a matter of law and request that

19 their Motion be granted with respect to all claims regarding the searches of detainees returning from
21 VI. 20 court who have been ordered released.

22 THE SHERIFF IN HIS OFFICIAL CAPACITY IS A POLICYMAKER FOR THE STATE OF CALIFORNIA, NOT THE
23 COUNTY OF KERN, AND THUS IS IMMUNE FROM SECTION 1983 LIABILITY PURSUANT TO THE ELEVENTH AMENDMENT
24

25 A. 26

The California Constitution, California Law and the Judicial Interpretation Thereof

by California Courts Support the Conclusion That, in this Instance, the Sheriff

in His

Offcial Capacity Acts on Behalf of the State of California

27 Under federal

law, only persons acting under color of state law are liable fûr civil rights

28 violations under § 1983. A state is not a "person" who may be sued under § 1983; likewise,

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1 individuals in their official capacities and agencies that are considered "arms of the state" are not

2 persons within the meaning of § 1983. Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71

3 (1989). Determining whether an entity is a person for purposes of Section 1983 liability is based

4 upon an examination of

state law. Hyland v. Wonder, 117 F.3d 405,413 (9th Cir. 1997). Here, the

5 5 Sheriff of Kern County, (currently Defendant Donny Youngblood) is sued in his official capacity.

6 In McMilian v. Momoe County, supra, the United States Supreme Court reaffrmed that
7 I state governent actors cannot be liable under § 1983. The essential principals for proper

8 adjudication of this issue are: 1) "whether local governmental offcials are final policy makers for
9 the local government in a particular area or in a particular issue"; and, 2) whether the identified 10 policymakers represent the local governental entity or whether they represent the State when acting

11 II in that area. 520 U.S. at 783. The McMilian Court also reaffirmed that the question of

whether a

12 " particular offcial has that final policymaking authority is dependent upon an analysis of state statute

13 and interpretive legal precedent. Id. at 784.

14 Here, as in the Alabama State Constitution at issue in McMilian, the Constitution and laws

15 of the State of California support the conclusion that in this instance, the Sheriff is an actor

16 representing the State. See Venegas v. County of

Los Angeles , 32 Ca1.4th 820, 839 (2004)

17 ("following the analysis prescribed in McMilian ..., California sheriffs act as state offcers while

18 performing state law enforcement duties(.)"). The California Constitution mandates that the State

19 Attorney General has oversight of

the Sheriff and ultimate power to direct and supervise the Sheriff

20 of each county. Venegas, 32 Ca1.4th at 830-33. In addition, the California Governent Code also

21 warrants that Sheriffs are State actors for purposes of Monell liability evaluation. California

22 Government Code Section 12560 states, in pertinent part:

23 The Attorney General has direct supervision over the Sheriffs of

the several counties

of the State, and may require of them written reports concerning the investigation,

24 detection and punishment of crime in their respective jurisdiction.

25 III

26

27 28
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5Plaintiffs do not sue former Sheriff

Wimbish in his offcial capacity. However, since the contested policies

occurred under both Sheriff Youngblood and Sheriff Wimbish, the cited law would be equally applicable

to both Defendants in their official capacities.

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1 California Governent Code Section 12524 provides:

2 The Attorney General may, from time to time, and as often as the occasion may
require, call into conference the District Attorneys and Sheriffs of the several 3 counties. . . for the purose of discussing the duties oftheir respective offices, with
the view of uniform and adequate enforcement of the laws of this State as
4 contemplated by Section 13 of Article V of the Constitution of this State.

5 See California Const. Art. V, §13; Pitts v. County of

Kern ,17 Cal.4th 340,358 (1998) (quoting

6 same); Venegas, 32 CaL.

4th at 833-34.

7 State law imposes on Sheriffs in California the duty to enforce the criminal

laws ofthe State

8 (see CaL. Govt. Code §§ 26600, 26601, 26602) and, relevant to this matter, to "take charge and be

9 the sole and exclusive authority to keep the county jail and the prisoners in it." CaL. Govt. Code §

10 26605. "Except in rare instances, the (county J board of supervisors has no direct authority over the

11 jail, and even where direct authority is given, its exercise is made discretionary by statute. The only I
i
1211 clear and present duty enjoined by law upon a board of supervisors with regard to a county jail is to I

13 provide the sheriff with food, clothing and bedding for prisoners and to pay as a county charge other

14

expenses incurred in the keeping of

prisoners." Brandt v. Board of

Supervisors, 84 Cal.App.3d 598,

15

601 (1978); see CaL. Penal Code § 4015; CaL. Govt. Code § 29602. Moreover, a board of

supervisors

16 has no legal authority to use its budgetary power to control employment in or operation of the

17 sheriffs office; only the sheriff has control of and responsibilty for distribution and training of I

18 personnel and the specific use ofthe funds allotted to him. Brandt, at 602.

19

Examination of state law enforcement hierarchy reveals that, as in McMilian, California

20 Sheriffs and District Attorneys are subject only to the California Attorney General in regard to the

21 official functions of their job in investigating and fighting crime, and thus must be deemed State

22

actors. Venegas, 32 CaL.

4th at 839. Accordingly, their actions in performing the functions of

their

23 respective positions cannot expose the counties in which they work to liability for alleged violations

24 of § 1983 because a State is not a "person" who is subject to suit under that statute. The California

25 Supreme Court affirmed McMilian in regard to both District Attorneys and Sheriffs in Venegas.

26 The Venegas Court reiied upon McMilian and other related state cases in holding that in all matters

27 related to investigation of crime, training of subordinate officers and staff, and options for crime

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fighting tactics, the County Sheriff acts on behalf of

the State in enforcing its laws and thus is a State

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1 actor. 32 Cal.4th at 830-839. Under McMilian, whether a particular official has policy making 2 authority is dependent upon an analysis of state law; California Constitution, Article V, Section 13, 3 provides that sheriffs and district attorneys are actors of the state, under the supervision of the

4 California Attorney General, which is reinforced by the Venegas Court's decision determining
5 sheriffs to be state actors. 6 The State of California charges Sheriffs with preserving the peace, "participat(ingJ in any

7 project of crime prevention, rehabilitat(ingJ of persons previously convicted of crime" and to

8 "prevent(ingJ and suppress(ingJ any affrays, breaches of the peace, riots and insurrections." CaL.

9 Govt. Code §§ 26600,26602. These are indubitably law enforcement functions and should not lose

10 their status as such because those functions happen to occur within the walls of a jail facility - a

11 facility that the State requires the Sheriff

to operate. See Govt. Code § 26605; Penal Code § 4000.

1211 In establishing policies regarding strip searches of criminal inmates upon returning to the jail from

13 court, the Sheriff of Kern County is preserving the peace and preventing affrays that arise when

14 contraband is smuggled into the Kern County jail - all of which are clearly law enforcement

15 functions. See Govt. Code §§ 26601,26602. In addition, persons detained at the jail have been

16 arested for committing crimes violating state law and are awaiting trial, have already been

17 convicted of and sentenced for violating state law andlor are detained as witnesses or under orders

18 of civil process or contempt. In essence, the Sheriff promulgates and maintains policies to ensure

19 that violators of California law are held to answer the charges fied against them by the district

20 attorney, who acts on behalf of the State, in the Superior Court, which is a division of the State.

21 Because the functions of the Sheriff in this case can only be classified as benefitting and occurring

22 on behalf of

the State ofCalifornia, the Sheriff cannot be classified as being a policymaker for Kern

23 County. Accordingly, he is immune from § 1983 liability pursuant to the Eleventh Amendment as

24 to any policy he makes regarding strip searches.

25 B. 26 27

The Rulings of the Ninth Circuit Court of Appeals Analyzing McMilian as to

California Sheriffs Fail to Follow McMilian's Requirement of

Deference to the Rulings

ofthe California Supreme Court Regarding Determination as to Whether a Defendant

Acts on Behalf of the State or the County for Purposes of Eleventh Amendment

Immunity

28 Decisions of the Court of Appeals for the Ninth Circuit do not preclude finding that the

PORTER SCOTT
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1 Sheriff acted for the State of California in establishing the strip search policy for the jaiL. In Streit

2 v. County of

Los Angeles, 236 F.3d 552 (9th Cir. 2001), the Court

held thatthe Los Angeles Sheriffs

3 Department was subject to § 1983 liability because the sheriff acted for the County as the jail

4 administrator when he set policy for conducting prisoner release record checks. The policy at issue

5 in Streit is distinguishable from the conduct at issue in the instant case. There, the Court found that

6 the sheriff acted for the county when he established a policy whereby prisoners were not released

7 until after all recent warrants and holds were checked - a purely administrative function. In contrast,

8 the instant case concerns the coordination of efforts to maintain the peace and safety of citizens who

9 happen to be detained in the jail, as the Sheriff is mandated to do by California law and under the

10 direction of the California Attorney General. Notably, Streit observed that courts analyzing

11 application of

Eleventh Amendment immunity are to avoid a "categorical all or nothing approach."

12 II Id. An inquiry must be made on a case-by-case basis to determine whether governmental offcials

13 are final policymakers for the local government in a particular area or on a particular issue. Id.

14

Here, to the extent that the Defendant Sheriffs established any type of policy regarding the

15 strip searches, it was a policy established on behalf ofthe State of California to maintain prisoners'

16 safety while charges were pending against them or to incarcerate them on behalf of the State after

17 they were convicted. The anticipated criminal prosecutions for which the detainees are held in the

18 jail do not benefit Kern County, but instead benefit the People of the State of California. The

19 Eastern District of California has already granted Eleventh Amendment immunity to Sheriffs in a

20

custodial setting. See McNeely v. County of

Sacramento, 2008 U.S.Dist.LEXIS 12460 (E.D. CaL.

21 2008).6 In granting summary judgment to Defendants, the district court held: "Here, there can be

22

23 24 25 26 27 28
PORTER SCOTT
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61n McNeely, the plaintiff

was convicted in Placer County for a felony violation and sentenced to five years

probation. Less than three years later, in Sacramento County, he was again charged with the same crime as

well as for failing failure to register as a sex offender in Sacramento County. He was taken into custody in

Sacramento County. Thereafter, the Placer County Probation Department filed a Petition to revoke probation

based on the allegations in the Sacramento case. The Placer County Superior Court summarily revoked the

plaintiffs probation and issued a bench warrant for his arrest. A detainer warrant was issued, noting that the

plaintiff was wanted by Placer County and that "if the subject is to be released by (Sacramento County),

please notify (Placer County L for pick up." That request was reiterated on a subsequent date when the Placer

County Corrections Department again requested that Sacramento County contact them before releasing the

plaintiff. Id. at 2-3. Plaintiff was arraigned on a probation revocation petition. After the Sacramento County

proceedings were repeatedly continued for various reasons, plaintiff fied a writ of

habeas corpus on grounds

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no question that (the J Sheriff... (was J acting in accordance with both facially valid warrants as well

2 as duly authorized criminal proceedings instituted by the District Attorneys of their respective

3 counties and pending before their courts." Id. at 12 In other words, there, as here, the Sheriff

was

4 acting on behalf of the district attorney, whom the Ninth Circuit has unequivocally designated as

5 being a representative of

the state, as well as the court, which also is an arm of

the state. 7 As the

6 court further noted in McNeely: "Under California Penal Code § 4004, a sheriff

is obligated to keep

7 a detainee in county jail 'untillegally discharged.'" Id. at 13. Moreover, the Northern District of

8 California also has recognized that the sheriff is a state actor, and hence not subject to suit, in an

9 action arising from a detainee's arrest and incarceration based upon an outstanding warrant. Smith

10 v. County

of San Mateo, 1999 U.S. Dist. LEXIS 13253 (N.D. CaL. 1999). In sum, the Sheriff

is

11 responsible by California statute to hold and maintain the detainees safety until a court of the State

1211 of California forwards the appropriate order for their release. Thus, there can be no dispute that in

13 this limited scope the Sheriff is acting for and on behalf of the State of California and therefore he

14 is entitled to Eleventh Amendment immunity for his actions as to this particularly group of prisoners.

15

The decisions in Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001) and Bishop Paiute

16 Tribe v. County ofInyo, 275 F.3d 893 (9th Cir. 2002), vacated, do not preclude finding that Sheriff

17 Youngblood is a state actor. In Brewster, the Ninth Court held that the Shasta County Sheriff acted

18 as a final policymaker for the county specifically when he was alleged to have manipulated a witness,

19 failed to test physical evidence and failed to disclose exculpatory evidence. Brewster, 275 F.3d at

20

21
22 23 24 25 26 ,L.,i. 28
PORTER SCOTT
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that right to speedy trial under the Sixth Amendment to the United States Constitution had been violated. The

Ninth Circuit granted the petition and ordered that the Sacramento County criminal charges be dismissed

with prejudice and that the plaintiff

be released on Friday, July 25, 2003. On the next business day, Monday,

July 28, 2003, Sacramento County jail personnel notified Placer County pursuant to the latter's detainer

warrant that plaintiff

was available for pick up. Placer County was not a part to the proceedings which had

resulted in Plaintiffs release from custody in Sacramento County. Placer County retrieved Plaintiff some

days later and incarcerated him there. Plaintiff challenged the detention and asserted that Sacramento County

and Sacramento County Sheriff

Lou Blanas had violated his rights under the Fourth Amendment when he

was held on the detainer warrant at the request of

Placer County. Id. at 3-6.

71n addition, persons who faithfully execute valid court orders and their public entity employers are

absolutely immune from liabilty for damages in civil rights actions challenging conduct authorized by the

order. Coverdell v. Dep't of Social & Health Servs., 834 F.2d 758, 764-65 (9th Cir. 1987). This is

particularly true here, where the Sheriff is beholden to the superior court to engage in any conduct at all and,

in fact, holds the prisoners at the behest of

the court until the necessary release paperwork is received.

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1 812. In Bishop, the court held that the sheriff and the district attorney were county actors when they

2 obtained and executed a search warrant that was alleged to be in excess of

their jurisdiction. Bishop

3 Paiute Tribe, 275 F.3d 909-910. First, the conduct at issue in Brewster and Bishop is entirely

4 distinguishable from the conduct at issue in this case as in the instant case, as Defendant Youngblood

5 is not being sued for conduct he engaged in while fulfilling investigatory duties. Instead, he is being

6 sued solely for his activities in promulgating policy affecting prisoners charged with violation of

7 California law as he is required to do by California statute.

8 Of significant importance, the Ninth Circuit decidecBreit, Brewster and Bishop well before

9 the California Supreme Court considered precisely this same issue in Venegas v. County of Los
10 Angeles, supra. As noted above, in deciding a McMilian issue, a reviewing court is required to 100k 11 to state constitutions, statute and relevant case law. The Venegas Court engaged in a pure McMilian 12 analysis regarding Sheriffs in California acting as State officials in regard to enforcing the Penal 13 Code, concluding that they are shielded by Eleventh Amendment immunity in § 1983 actions. See

14 Id. at 828-30. In so concluding, the Venegas Court analyzed various portions of the California

15 Constitution and Government Code statutes and reviewed and relied upon its own prior ruling in

16 Pitts v. County of Kern, in which the Court held that those very same statutes provided Eleventh

17 Amendment immunity to District Attorneys of the various counties in California, thus warranting

18 extension ofthe immunity to Sheriffs. Id. The Ninth Circuit has repeatedly relied on Pitts in holding

19 that District Attorneys in California are immune from § 1983 liability. See, e.g., Ceballos v. Garcetti,

20 361 F.3d 1168, 1182-83 (9th Cir. 2004) (relying on Pitts and holding that "a district attorney is a

21 state official when he acts as a public prosecutor. . . In the prosecution of criminal cases he acts by

22 the authority and in the name of

the people of

the state."); Sonnier v. Los Angeles County District

23 Attorney's Office, 33 Fed. Appx. 252, 254 (9th Cir. 2002) (relying on Pitts and holding that "the Los

24 Angeles County District Attorney is an agent of the state, not the county, and therefore is not a

25 proper defendant in a § 1983 action"). Those same statutes that led the California Supreme Court

26 to find Eleventh Amendment immunity applicable to District Attorneys are the same statutes that

27 led that same Court to apply the immunity to Sheriffs in California - the same cases now utilized by

28 the Ninth Circuit.

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1 There is plainly an inconsistency and split of authority between the laws and judicial

2 precedent of

the State of California and the rulings ofthe Ninth Circuit Court of Appeals regarding

3 application of Eleventh Amendment immunity to California Sheriffs, particularly since the Ninth

4 Circuit has held that, in fact, the County acts as "an 'arm of

the state.''' Franceschi v. Schwartz, 57

5 F.3d 828,831 (9th Cir. 1995). In

Miler v. Gammie, 335 F.3d 889 (9th Cir. 2003), the Ninth Circuit

6 focused on the issue of

"when, if ever, a district court or a three-judge panel is free to reexamine the

7 holding of a prior panel in light of an inconsistent decision by a court of last resort on a closely

8 related, but not identical issue."g Id. at 899. The Miler panel concluded that "the relevant court of

9 last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such

10 a way that the cases are c1early irreconcilable." Id. at 900. There is no question that the California

11 II Supreme Court is the court of last resort for the interpretation of California law. See Weiner v.
II
1211 County of San Diego, 210 F.3d 1025, 1030 (9th Cir. 2000)("In addition to California's

13 constitutional and statutory law, we also consider its case law, giving due respect to decisions by the

14 California Supreme Court as the ultimate interpreter of California State law") (emphasis added).

15 Here, the Ninth Circuit's prior rulings in Streit, Brewster and Bishop are directly and irreconcilably

16 at odds with the California Supreme Court's ruling in Venegas that California Sheriffs are state

17 offcers while performing law enforcement duties, though even Streit acknowledges that the

18

determination of

Eleventh Amendment immunity must focus on the particular action alleged to have

19 deprived the plaintiff of his civil rights. See Streit, 236 F.3d at 564. This Court should accord

20 deference to the interpretation and application of California law established by the California

21 Supreme Court - the relevant cour oflast resort in the interpretation of California law particularly

22

in light of

McMilian

' s mandate that a reviewing court should defer to any interpretive case law from

23 the state in question. McMillan, at 789; see Jacintoport Corp. v. Greater Baton Rouge Port

24 Comm'n, 762 F.2d 435, 438 (5th Cir. 1985) ("in determining immunity under the Eleventh

25 26 27 28
PORTER S C 0 TT
'H'ww.porrerscoltcom

8In Miler, the Ninth Circuit reversed an absolute immunity rule for social workers that was established in

Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989), in light of a more functional approach to immunity taken

by the United States Supreme Court in two subsequent decisions, Antoine v. Byers & Anderson. Inc., 408

U.S. 429 (1991), and Kalina v. Fletcher, 522 U.S. 118 (1997). The

Miler COült affrmed the distdct court's

deferred ruling on a motion to dismiss and its refusal to apply Babcock until the nature of

the functions that

the defendant in that case performed were outlined to apply Antoine and Kalina.

19

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Case 1:07-cv-00474-DLB Document 64 Filed 11/07/08 Page 26 of 27

1 Amendment, a factor that 'subsumes all others' is the treatment of

the entity in state courts"). It is

2 only common sense to conclude that if the Ninth Circuit recognizes the authority of the California

3 Supreme Court as being the "ultimate interpreter" of state law in regard to District Attorneys under

4 Pitts, then it must afford the same deference to the decision of the California Supreme Court in
5 Venegas that applies Eleventh Amendment immunity to Sheriffs in regard to their law enforcement

6 duties.

7 Defendants respectfully submit that because the Defendant Sheriffs is a state actor in this

8 scope, they cannot be sued under § 1983 pursuant to the Eleventh Amendment. Accordingly,
10 VII. 9 Defendants respectfully request that their motion for summary adjudication be granted in this regard.

11 THE COUNTY OF KERN is AN IMPROPER PARTY TO THIS ACTION

12 As stated above, pursuant to § 1983, local government entities may only be held liable for

13 constitutional injuries that are inflcted by their officials which are pursuant to municipal policy,

14 practice or custome. Monell, supra, 436 U.S. at 654. As discussed in greater detail above, the

15 Supreme Cour in McMilian reaffrmed that state governent actors cannot be liable under § 1983.

16 Further, in accordance with Pitts, County oflos Angeles v. Superior Court (Peters), 68 Cal.App.4th

17 (1998), and Venegas, the counties also sued in each case also were dismissed from each respective

18 matter because the actions taken by the District Attorney or the Sheriff occurred on behalf of the

19 State rather than the County, resulting in the individual Defendants not being subject to suit under

20 § 1983 pursuant to the Eleventh Amendment. Because the conduct at issue in each of these cases

21 occurred on behalf of the State in relation to dealing with crime, these courts concluded that no

22 County involvement existed in the claim which the plaintiffs therein asserted.

23 On this basis, the Kern County Sheriff in his official capacity, in addressing and fighting

24 crime within the confines of the jail, acts on behalf of the State of Califomia. Therefore, in that

25 capacity he did not act on behalf of the County of Kern. Thus, because he was acting for the State

26 and not the County of

Kern, no liability can be imputed to the County of

Kern under Monell for any

27 actions related to the strip search of detainees returning to the jail from the Kern County Superior

28 Court for appearances related to the criminal charges against them. Accordingly, the County of

PORTER SCOTT
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1 is an improper party to this action and Defendants respectfully request that their motion for summary
3 VIII. 2 adjudication as to any claims asserted against the County be granted.
4 CONCLUSION

5 Based on all of

the foregoing, Defendants SHERIFF DONNY YOUNGBLOOD, FORMER

6 SHERIFF MACK WIMBISH, COUNTY OF KERN and its agency the KERN COUNTY

7 SHERIFF'S OFFICE jointly request that their Motion for Summary Adjudication be granted.
8 Respectfully submitted,

9 Dated: November 7,2008
10

PORTER SCOTT A PROFESSIONAL CORPORATION

11

i

By /sl Terence J. Cassidy

1211

Terence J. Cassidy

Kristina M. Hall

13

Attorney for Defendant

COUNTY OF KERN

14

15 Dated: November 5, 2008

B.C. BARMANN, SR., COUNTY COUNSEL

16

17

By lsi Jennifer L. Thurston

Jennifer L. Thurston Deputy County Counsel

18

Attorney for Defendants

COUNTY OF KERN, its agency the

19

KERN COUNTY SHERIFF'S OFFICE,

DONNY YOUNGBLOOD and MACK

20

WIMBISH

21

22

23

24

25

26

27

28
PORTER SC OTT

21 DEFENDANTS' MSA RE: QUALIFIED IMMUNITY AND ELEVENTH AMENDMENT
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 Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 1 of 20

1 BARRETT S. LITT SBN 45527 PAUL J. ESTUAR SBN 167764
2 LITT, ESTUAR, HARRISON AND KITSON LLP 1055 Wilshire Blvd., Suite 1880
3 Los Angeles, CA 90017 (213) 386-3114; (213) 380-4585 facsimile
4 pestuar@littlaw.com

5 ROBERT MANN SBN 48293

DONALD W. COOK SBN 116666 6 ATTORNEYS AT LAW

7

3435 Wilshire Blvd., Suite 2900 Los Angeles, California 90010

8

(213) 252-9444; (213) 252-0091 facsimile doncook@earthlink.net

9 Attorneys for Plaintiffs

10

11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA

13

14

MARSIAL LOPEZ, SANDRA CHAVEZ, THEODORE MEDINA, each

15 individually, and as class representatives,

16

Plaintiffs,

17 vs.

18 SHERIFF DONNY YOUNGBLOOD, individually and in his official capacity;
19 FORMER SHERIFF MACK WIMBISH, in his individual capacity, COUNTY OF
20 KERN, a governmental entity; KERN COUNTY SHERIFF’S DEPARTMENT,
21 a California public entity; and DOES 1 through 100,
22
Defendants.
23

Case No. 1:07CV474 DLB
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
Date: 12/19/08 Time: 9:00 a.m. Ctrm: 9 (Fresno)

24

25

26

27

28 1
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGM0E00N37T909.WPD

Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 2 of 20

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

4 I. 5 II.
6 7 8 9 10 11
III.
12 13 14 15 16 17 18 19 20 21 22
23 IV.

RELIEF REQUESTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The Kern County Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The KCSD Strip Search Policy And Practice. . . . . . . . . . . . . . . . . . . . . . 2
1. Strip/Visual Body Cavity Search – defined . . . . . . . . . . . . . . . . . . . . . 2 2. Who Gets Strip/Visual Body Cavity Searched . . . . . . . . . . . . . . . . . . . 2 3. The Absence Of Privacy For Prisoners Strip Searched At The Lerdo Jail Upon Arrival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. The Strip Searches Were Often Conducted Under Unsanitary And Degrading Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Summary Judgment Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. KCSD’s Policy Of Strip Searching Persons Ordered Released From
Custody, Violated The Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . 4 C. KCSD’s Policy Of Strip Searching Prisoners In Groups Without Privacy
Violated The Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Defendants Cannot Justify Its Former Policies On Grounds Of
Administrative Convenience. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 E. The Strip Search Policies Violated Plaintiffs’ State
Constitutional Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Cal. Const., Art. I § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. Cal. Const. Art. I § 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. The Group Strip Searches Violated California’s Equal Protection Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
F. The Entity Defendants Are Liable For The Constitutional Violations. . 14
1. Federal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2. State Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

24

25

26

27

28 ii
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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 3 of 20

1
2 Cases

TABLE OF AUTHORITIES

Page(s)

3 Amaechi v. West, 237 F.3d 356 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4

American Academy of Pediatrics v. Lungren,

5

16 Cal. 4th 307 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

6 American Airlines, Inc. v. Superior Court,

7

114 Cal. App. 4th 881 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

8

Bell v. Wolfish, 441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9 Central Valley Chap. 7th Step Foundation v. Younger,

10

95 Cal. App. 3d 212 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

11

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

12
Coalition Advocating Legal Housing Options v. City of Santa Monica,

13

88 Cal. App. 4th 451 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

14 Craft v. County of San Bernardino,

468 F. Supp. 2d 1172 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 14

15

Davis v. City of Camden,

16

657 F. Supp. 396 (D. N.J. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

17 Del Monte v. Wilson, 1 Cal.4th 1009 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18

Ford v. City of Boston,

19

154 F. Supp.2d 131 (D. Mass. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

20 Hansen v. California Department of Corrections,

21

920 F. Supp. 1480 (N.D. Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

22

Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

23 Hill v. NCAA,

24

7 Cal.4th 1 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

25 Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26
Jones v. Murphy,

27

470 F. Supp. 2d 537 (D. Md. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 iii
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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 4 of 20

1 Jordan v. Gardner,

986 F.2d 1521, 1524 (9th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2

Logan v. Shealy,

3

660 F.2d 1007 (4th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7

4 Long Beach City Employees Assn, 41 Cal.3d 937 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5

Monell v. New York Dept. Of Soc. Servs.,

6

436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

7 N.G. v. Connecticut,

8

382 F.3d 225 (2d Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9

People v. Guzman, 35 Cal.4th 577 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

10 People v. Hofsheier,

11

37 Cal.4th 1185 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12 People v. McKay, 27 Cal. 4th 601 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

13
Perez v. City of Huntington Park,

14

7 Cal. App. 4th 817 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15 Robbins v. Wong,

27 Cal. App. 4th 261 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16

Polk v. Montgomery County, Maryland,

17

782 F.2d 1196 (4th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
19

20

Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

21 Rufo v. Inmates of Suffolk County Jail,

22

502 U.S. 367 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

23

Smith v. Montgomery County, Md., 547 F. Supp. 592 (D. Md. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

24
Smith v. Montgomery County, Md.,

25

607 F. Supp. 1303 (D.C. Md. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26 Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
27
Thompson v. Souza,
28
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1

111 F.3d 694 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2 Way v. County of Ventura, 445 F.3d 1157 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5
3

White v. Davis,

4

13 Cal. 3d. 757 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

5 Young v. City of Little Rock, 249 F.3d 730 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6
7 Constitution/Statutes/Rules of Court 8 Cal. Const., Art. I § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 12-13 9 Cal. Const., Art. I § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 Cal. Const., Art. I § 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

11 Cal. Gov’t Code § 815.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

12 Cal. Penal Code § 4030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 12-13

13 Eastern District Local Rule 56-260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

14 Federal Rules of Civil Procedure 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S. Const., Amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5, 7, 10-11

16

17

18

19

20

21

22

23

24

25

26

27

28 v
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1 I. RELIEF REQUESTED.

2

Plaintiffs, former prisoners held at the Kern County Jail (“KCJ”) and the putative

3 classes they represent, bring this facial challenge to certain Kern County Sheriff’s

4 Department’s (“KCSD”) strip/visual body cavity search policies and practices. Plaintiffs

5 contend that the KCSD’s former policies of (1) routinely strip searching1 prisoners

6 ordered released from custody pursuant to court order without reasonable suspicion that

7 the prisoner posses weapons or contraband, and (2) routinely searching all prisoners upon
8 their arrival at the Lerdo jail in groups, without privacy and where the strip search was
9 viewed by other inmates and jail personnel not necessary to the search, violated plaintiffs’ 10 rights under the federal and state constitutions. Thus, plaintiffs contend, they are entitled
11
to this Court’s ruling that defendants are liable as a matter of law for violating plaintiffs’
12
rights.
13
II. STATEMENT OF FACTS.
14
A. The Kern County Jail.
15
The KCSD operates the Kern County Jail (KCJ). The KCJ consists of Central
16
Receiving Facility (CRF) in Bakersfield, the Lerdo Detention Complex (Lerdo jail), and
17
pre-arraignment jails at Mojave and Ridgecrest. Most new arrestees are initially housed
18
at CRF. If not released from CRF, arrestees are then housed at the Lerdo jail. (The
19
20 Mojave and Ridgecrest jails are used to hold, pre-arraignment, those arrestees who,
21 because of geographical distance, must be held in custody while awaiting transport to
22 CRF in Bakersfield.) Plaintiffs’ Statement of Undisputed Facts (hereinafter “PSUF”) nos.
23 1-3.

24

Arrestees may remain at CRF anywhere from a few hours to a few days. Arrestees

25 are then either released from custody, or transported to Kern County Superior Court

26

27

1 As used herein to refer to defendants’ policies, a “strip search” means strip/visual body cavity

search. 28

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1 (KCSC) for their initial court appearance. If, following the arrestee’s initial court

2 appearance, the KCSC orders the arrestee’s release, the arrestee is returned to CRF where

3 he is released (assuming no other holds). If KCSC remands the arrestee to custody, the

4 arrestee returns to CRF, then via bus transported to the Lerdo jail where he is housed until

5 either his release or next court appearance. PSUF nos. 4-5.

6

Post-arraignment prisoners, including those serving sentences, are housed at the

7 Lerdo jail. If a prisoner housed at the Lerdo jail has a court appearance, via bus KCSD

8 transports the prisoner to CRF where he is staged for the court appearance. Following that

9 appearance the prisoner is returned to CRF, then to his Lerdo jail housing. At Lerdo, the
10 prisoner is held in custody or released, depending on the court’s order(s). Thus, prisoners
11
who, following a court appearance, are ordered released, are turned to the Lerdo jail so
12
that they may be released from custody. PSUF nos. 5-6.
13
B. The KCSD Strip Search Policy And Practice.
14
1. Strip/Visual Body Cavity Search – defined
15
A strip/visual body cavity search requires the arrestee or prisoner to remove all
16
clothing so as to permit a visual inspection of the breasts, buttocks, and genitalia of the
17
person being searched. A female prisoner must expose her vagina; a male prisoner must
18
lift his penis and scrotum for visual inspection. A prisoner must bend over and separate
19
20 his/her buttocks cheeks, to squat down then stand back up, and to cough three times.
21 From 2003 to present, the manner of strip searching prisoners has not changed. PSUF

22 nos. 10-12.

23

2. Who Gets Strip/Visual Body Cavity Searched

24

Broadly speaking, prisoners subjected to a strip search fall into one of three types:

25 (1) arrestees strip searched pursuant to Cal. Penal Code § 40302; (2) prisoners strip

26

27

2 Section 4030 requires that a misdemeanor or infraction arrestee not be strip searched absence

reasonable suspicion that the arrestee is concealing weapons or contraband. Cal. Penal Code § 4030(f). 28

2

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1 searched because jail officials have reasonable suspicion that the prisoner is concealing

2 weapons or contraband; and (3) prisoners arriving at the Lerdo jail. For this last group

3 there is no requirement of reasonable suspicion. PSUF nos. 9, 12; Exhibit A to Cook

4 decl.3 (pp. 3-4 of KCSD “Search Procedures C-500”). Moreover, this last group includes

5 prisoners like Marsial Lopez and Theodore Medina – the Kern County Superior Court

6 had ordered their release from custody but in the course of processing their releases, KCJ

7 officials strip searched Mr. Lopez and Mr. Medina because jail officials returned to the

8 Lerdo jail to process their releases. PSUF nos. 19 (Lopez), 24 (Medina).

9

3. The Absence Of Privacy For Prisoners Strip Searched At The Lerdo Jail

10

Upon Arrival

11
Before October 2007, KCSD routinely conducted strip searching in a group setting,
12
without providing prisoners privacy. There were no partitions, booths, or curtains.
13
Prisoners were lined up in a group as many as 25, and could observe each other’s
14
searches. For instance, plaintiff Sandra Chavez had to expose her vagina while on her
15
menstrual cycle, in full view of other arrestees. Women were ordered to remove sanitary
16
napkins in view of other prisoners. Prisoners were crowded together so tightly that
17
physical contact was unavoidable. PSUF nos. 13-15, 20.
18
This practice of searching prisoners in groups without privacy stood in stark
19

20 contrast to the jail’s Cal. Penal Code § 4030 searches. For those strip searches KCJ

21 personnel strip searched § 4030(f) arrestees individually, in a booth that prevented other

22 prisoners and non-involved jail personnel from observing the search. PSUF no. 16.

23 ///

24

25 See Way v. County of Ventura, 445 F.3d 1157, 1160 n.2 (9th Cir. 2006) (discussing and quoting § 4030). 26 Moreover – and significantly for purposes of this motion, see Part III(E)(3) infra – if subjected to a strip
search a § 4030(f) arrestee must be provided privacy. Cal. Penal Code § 4030(m). 27
3 Declaration of Donald W. Cook filed November 7, 2008. 28
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1

4. The Strip Searches Were Often Conducted Under Unsanitary And

2

Degrading Conditions

3

During group strip searches, prisoners were exposed to unsanitary conditions. They

4 stood and walked barefoot on dirty floors contaminated with bodily fluids, including

5 blood, with material tracked on shoes from outside and from within other locations of the

6 facility. Detainees were required to throw their clothing on filthy floors and at times, had

7 to re-dress in clothing after it had lain on the dirty floor. PSUF nos. 14, 15, 21.

8

Menstruating women bled on themselves and on the floor. The floor was also the

9 repository for the prisoners’ clothes. Male and female prisoners stood barefoot on the

10 same floor that captured the prisoners’ clothes and bodily fluids. Meanwhile, jail officials

11
would also offer their comments, mocking and/or humiliating prisoners, including
12
disabled prisoners like Mr. Medina. PSUF Nos. 14, 15, 20-23.
13
III. ARGUMENT.
14
A. Summary Judgment Standard.
15
Summary adjudication is mandated where “there is no genuine issue as to any
16
material fact” and “the moving party is entitled to judgment as a matter of law.”
17
Fed.R.Civ.P. 56(c). Summary adjudication or partial summary judgment is permitted by
18
both the Federal and Local Rules. F.R.Civ.P. 56(d); Local Rule 56-260(f).
19

20

B. KCSD’s Policy Of Strip Searching Persons Ordered Released From

21

Custody, Violated The Fourth Amendment.

22

The Fourth Amendment is the governing standard. Way v. County of Ventura, 445

23 F.3d 1157, 1161-62 (9th Cir. 2006) (holding that a county jail’s blanket strip search policy

24 violated the Fourth Amendment);Jordan v.Gardner, 986 F.2d 1521, 1524 (9th Cir.1993)

25 (en banc) (the “Fourth Amendment guarantees the right of the people to be secure against

26 unreasonable searches, and its protections are not extinguished upon incarceration”);

27 Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (same).

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1

As recently reaffirmed by the Ninth Circuit,

2

We assess the constitutionality of a [strip] search by balancing “the need for

3

the particular search against the invasion of personal rights that the search

4

entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447

5

(1979). This requires us to weigh “the scope of the particular intrusion, the

6

manner in which it is conducted, the justification for initiating it, and the

7

place in which it is conducted.” Id.

8 Way v. County of Ventura, 445 F.3d at 1160.

9

Unquestionably, defendants cannot justify its (former) policy of subjecting all

10 prisoners who have been ordered released to a strip search upon their arrival at the Lerdo
11
jail. The persons subjected to the search, e.g., Mr. Lopez and Mr. Medina, were ordered
12
released from custody. At the point the release order issued, defendants’ justification for
13
any search of plaintiffs was necessarily minimized. And when one considers the
14
especially intrusive nature of a strip/visual body cavity search (Way, 445 F.3d at 1160)
15
the policy cannot be justified under the Fourth Amendment. Young v. City of Little Rock,
16
249 F.3d 730, 735-36 (8th Cir. 2001) (strip search of woman mistakenly arrested on a
17
warrant and then ordered released characterized as “shocking”; no legitimate institutional
18
interest justifying strip search based on out-processing administrative convenience);
19

20 Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (law conclusively established by

21 Bell v. Wolfish, and therefore no qualified immunity, that subjecting woman arrested on

22 DUI charge to blanket strip search after magistrate ordered her released on personal

23 recognizance violated Fourth Amendment); Craft v. County of San Bernardino, 468 F.

24 Supp. 2d 1172, 1179 (C.D. Cal. 2006) (“[T]he Court finds . . . that the [strip search ]

25 policies at issue violate the Constitution when conducted on arrestees returning from

26 court who are entitled to release as a result of their court appearance . . .”).

27 ///

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1

C. KCSD’s Policy Of Strip Searching Prisoners In Groups Without

2

Privacy Violated The Fourth Amendment.

3

Even though supported by reasonable suspicion of weapons and/or contraband, a

4 strip search may still violate the Fourth Amendment for the manner in which it is

5 conducted.

6

Here, defendants’former practice of conducing strip searches of prisoners en masse

7 violated clearly established law. Not providing prisoners like plaintiffs privacy when they

8 were strip searched, was impermissible absent compelling justification. Amaechi v. West,

9 237 F.3d 356, 364 (4th Cir. 2001) (“we have repeatedly emphasized the necessity of
10 conducting a strip search in private”); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.
11
1981) (strip search in a detention center cell where others in the booking area could
12
observe strip search; “no police officer in this day and time could reasonably believe that
13
conducting a strip search in an area exposed to the general view of persons known to be
14
in the vicinity, whether or not any actually viewed the search” is constitutional); Iskander
15
v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir. 1982) (contention “that routine strip
16
searches may be conducted in a room open to the prying eyes of passing strangers” would
17
not “be entertained”) (citing Logan, supra); Polk v. Montgomery County, Maryland, 782
18
F.2d 1196, 1201 (4th Cir. 1986) (whether search is conducted in private is “especially
19
20 relevant in determining whether a strip search is reasonable under the circumstances”);
21 Smith v. Montgomery County, Md., 547 F. Supp. 592, 599 (D. Md. 1982) (Smith I)

22 (enjoining, inter alia, any policy that permitted conducting visual searches other than in

23 private; “with respect to conducting a strip search in private, even if all defendants'

24 arguments were accepted, there is no reason why the initial search of incoming detainees

25 cannot be done in private”); Smith v. Montgomery County, Md., 607 F. Supp. 1303 (D.C.

26 Md. 1985) (Smith II) (new judge in the same case affirmed the injunction previously

27 entered; “based on Logan v. Shealy, the Center's indiscriminate strip search policy and

28 6
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1 failure to conduct strip searches in private is unconstitutional”; no qualified immunity);

2 Jones v. Murphy, 470 F. Supp. 2d 537, 548 (D. Md. 2007) (arrestees “being strip searched

3 in a non-private setting also violates what appears to be a clearly established right in the

4 Fourth Circuit”).

5

D. Defendants Cannot Justify Its Former Policies On Grounds Of

6

Administrative Convenience.

7

It is anticipated that defendants will claim they had to strip search all prisoners

8 arriving at the Lerdo jail, including those ordered released, and had to do so without

9 providing the prisoners privacy, because of the jail’s limited resources, the number of
10 prisoners processed daily, and the like. In short, administratively it was too expensive to
11
comply with constitutional guarantees.
12
If made, defendants’ administrative convenience argument will be meritless. Rufo
13
v. Inmates of Suffolk County Jail, 502 U.S. 367, 392 (1992) (“financial constraints may
14
not be used to justify the creation or perpetration of Constitutional violations.”); Stone
15
v. City and County of San Francisco, 968 F.2d 850, 858 (9th Cir.1992) (“federal courts
16
have repeatedly held that financial constraints do not allow states to deprive persons of
17
their constitutional rights”); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001);
18
(“An indiscriminate strip search policy routinely applied ... [cannot] be justified simply
19
20 on the basis of administrative ease in attending to security considerations.”) (ellipsis in
21 original) (quoting Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Hill v. Bogans,
22 735 F.2d 391, 394-95 (10th Cir. 1984)); Craft v. County of San Bernardino, 468 F. Supp.

23 2d 1172, 1178-79 (C.D. Cal. 2006) (defendants’ justification for strip search policies was

24 “in essence…administrative convenience,” thereby undermining defendants’ justification;

25 “lack of funds does not justify what is otherwise a constitutional violation”); see also

26 N.G. v. Connecticut, 382 F.3d 225, 234 (2d Cir.2004) (“[m]ere convenience, however,

27 cannot be a sufficient interest to justify such a serious impairment of privacy”).

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1

Finally, although not necessary for granting the instant motion it is worth noting

2 that defendants changed its policy after they were served with this lawsuit. PSUF nos. 25,

3 26. Furthermore, other jails have for years been doing what defendants only recently got

4 around to doing. PSUF nos. 27, 28, 29, 30. Both factors would belie any claim by

5 defendants that until they changed their policies, they had no choice but to deny plaintiffs

6 and the putative class their full measure of Fourth Amendment rights.

7

E. The Strip Search Policies Violated Plaintiffs’ State Constitutional

8

Rights.

9

1. Cal. Const., Art. I § 1

10

The right to privacy under the California Constitution is a fundamental and

11
inalienable right. White v. Davis, 13 Cal. 3d. 757, 774 (1975); American Airlines, Inc. v.

12
Superior Court, 114 Cal. App. 4th 881, 893 (2003). California’s right of privacy is

13
broader than the federal right to privacy. American Academy of Pediatrics v. Lungren, 16

14
Cal. 4th 307, 326 (1997) (“with respect to the specific constitutional right at issue in this
15
case--the constitutional right of privacy--there is a clear and substantial difference in the
16

applicable language of the federal and state Constitutions. The federal Constitution
17

contains no provision expressly setting forth or guaranteeing a constitutional right of
18

‘privacy’ ”) (emphasis in the original).
19

20

In American Academy of Pediatrics v. Lungren, supra, plaintiffs challenged the

21 constitutionality of a California statute requiring minors to acquire parental consent or

22 judicial authorization before being able to obtain an abortion. 16 Cal. 4th at 313.

23 Construing the state Constitutional provision to be broader than its federal counterpart,

24 the California SupremeCourt held that, although such a statutory scheme was permissible

25 under the federal constitution, it violated minors’ right of privacy under Article I, § 1. 16 26 Cal. 4th at 325.

27

The controlling case in determining the scope of Article I, § 1’s right of privacy is

28 8
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1 Hill v. NCAA, 7 Cal.4th 1, 34 (1994). In Hill, the court articulated a test for a state
2 constitutional right to privacy cause of action. There must be: (1) a legally protected
3 privacy interest involved; (2) a reasonable expectation of privacy on the plaintiff’s part;
4 and (3) a serious invasion of a privacy interest. Id. at 36-37. The plaintiff’s privacy
5 interest must then be balanced against the defendant’s countervailing interest. Id. The 6 defendant must demonstrate either a “compelling interest,” Id. at 34, or a “legitimate 7 interest,” Id. at 56-57, in violating plaintiff’s privacy rights. The standard applied depends 8 upon the nature and severity of the intrusion. In cases where the defendant commits “an 9 obvious invasion of an interest fundamental to personal autonomy,” . . . a ‘compelling 10 interest’ must be present to overcome the vital privacy interest. If, in contrast, the privacy
11
interest is less central, or in bona fide dispute, general balancing tests are employed.” Id.
12
at 34. If the defendant articulates a countervailing interest, the plaintiff has the burden of
13
demonstrating that equally effective alternatives that are less intrusive to plaintiff’s
14
privacy interests are available. Id. at 38. If such alternatives are available, the invasion
15
of privacy is enhanced. Id. The “least intrusive means” is applied when there is a clear
16
invasion of “central, autonomy-based rights,” Id. at 49, or in cases where a state actor has
17
violated a right of privacy.
18
The Hill court made clear that alternatives are a key factor in the privacy analysis,
19
20 noting that, “if defendant's legitimate objectives can be readily accomplished by 21 alternative means having little or no impact on privacy interests, the prospect of 22 actionable invasion of privacy is enhanced.” Id., 7 Cal.4th at 38. Subsequent decisions 23 have established that, at least in a governmental setting such as this one, the least 24 intrusive means test is a weighty factor. See Hansen v. California Department of
25 Corrections, 920 F. Supp. 1480, 1507 (N.D. Cal. 1996) (“challengers must prevail if …
26 (1) it is the state (government), rather than a private entity or party, that is invading the
27 challenger’s privacy interest . . . (2) feasible alternative means to achieving the state’s
28 9
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1 ends are available; (3) if the state used those alternative means, it would achieve its ends

2 as well, or nearly as well, as it does through the challenged procedures; and (4)

3 appreciably less harm would be caused to the challenger’s privacy interests if the

4 alternative means were used”); accord, Coalition Advocating Legal Housing Options v.

5 City of Santa Monica, 88 Cal. App. 4th 451, 450-60 (2001).

6

Under a proper right-of-privacy analysis, then, since strip searches directly

7 implicate an interest “fundamental to personal autonomy,” not only must defendants

8 proffer a “compelling interest” for the searches, they must do so using the “least intrusive

9 means.” Those less intrusive alternatives include (1) releasing the inmates directly from
10 court rather than bringing them back to the jail (2) segregating court-ordered releasees
11
from inmates going back to general population, such as putting them in a separate holding
12
cell, so that releasees would not have to be strip searched, and (3) conducting searches
13
for outstanding wants and holds on inmates before court appearances.
14
Since numerous jails have been faced with similar issues and have successfully
15
modified their behavior to respect the constitutional rights of court returns not to be strip
16
searched after becoming entitled to release (PSUF nos. 27, 28, 30) defendants cannot
17
carry their burden in this case. Given the extreme intrusion on privacy, defendants cannot
18
begin to justify the practice by arguments that it is more convenient for them, and they
19
20 cannot contend that it could not be done, particularly since defendants have discontinued
21 the challenged policies. As the policies cannot be justified under the Fourth Amendment,

22 neither can they be justified under the more restrictive standard of Article I, § 1.

23

2. Cal. Const. Art. I § 13

24

Article I, section 13 is the state constitutional equivalent to the Fourth Amendment.

25 Although nearly word-for-word identical to the Fourth Amendment,4 in civil cases § 13

26 4 Fourth Amendment, United States Constitution:
27 The right of the people to be secure in their persons, houses, papers, and
28
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1 is construed to provide broader protections than its federal counterpart. People v. McKay,

2 27 Cal. 4th 601 618-19 (2002).5

3

Plaintiffs incorporate their previous discussion of the Fourth Amendment in

4 support of this claim. Moreover, since the challenged strip searches directly implicate an

5 interest “fundamental to personal autonomy,” not only must the KCSD proffer a

6 “compelling interest” for the searches, it must do so using the “least intrusive means.”

7 Less intrusive alternatives include (1) strip searching only those arrestees for whom

8 probable cause or reasonable suspicion exists, and (2) conducting strip searches in

9 private.

10

3. The Group Strip Searches Violated California’s Equal Protection

11
Guarantees

12
In relevant part Art. I § 7 of the California Constitution states: “A person may not

13
be deprived of life, liberty, or property without due process of law or denied equal

14
protection of the laws . . .” “Broadly stated, equal protection of the laws means ‘that no
15
person or class of persons shall be denied the same protection of the laws [that] is enjoyed
16

by other persons or other classes in like circumstances in their lives, liberty and property
17

18

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

19

particularly describing the place to be searched, and the persons or things to be seized.

20

Art. I, § 13 of the California Constitution:

21

The right of the people to be secure in their persons, houses, papers and effects,

22

against unreasonable seizures and searches, shall not be violated; and no warrant shall

issue but on probable cause, supported by oath or affirmation, particularly describing

23

the place to be searched, and the persons and things to be seized.

24

5 Should defendants argue that the passage, in 1982, of Proposition 8 (Victims Rights Initiative)

limits state constitutional protections to those afforded under the Federal Constitution, the argument is 25 meritless. By its terms Proposition 8 applies only to criminal proceedings; it has no application to civil

26 actions. Robbins v. Wong, 27 Cal. App. 4th 261, 273 (1994) (holding that “section 28(f) [the state constitutional amendment that limits Art.I § 13 protections to those provided by the Fourth Amendment]

27 ‘is, by its express terms, applicable only to criminal proceedings,’ and has ‘no application to civil

actions.’ ”). 28

11

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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 17 of 20

1 and in their pursuit of happiness.’ ” People v. Guzman, 35 Cal. 4th 577, 591 (2005)

2 (bracket in original).

3

“In resolving equal protection issues, the United States Supreme Court has used

4 three levels of analysis. Distinctions in statutes that involve suspect classifications or

5 touch upon fundamental interests are subject to strict scrutiny, and can be sustained only

6 if they are necessary to achieve a compelling state interest. ” People v. Hofsheier, 37

7 Cal.4th 1185, 1200 (2006) (mandatory lifetime registration requirement violated
8 defendant's equal protection right inasmuch as one convicted of unlawful sexual
9 intercourse with 16-year-old was not subject to mandatory requirement). Where a statute 10 touches on a fundamental interest, “it must be narrowly drawn to use the least intrusive
11
means to achieve a compelling state purpose.” Del Monte v. Wilson, 1 Cal.4th 1009, 1118
12
(1992) (distribution of veterans' benefits conditioned on California residency at a fixed
13
point in the past violates the federal constitutional right to equal protection of the laws).
14
It is clear that the strip searches to which defendants subjected plaintiffs impinged
15
upon “fundamental interests.” Requiring a person to bend over and expose his or her
16
anus and/or vagina for examination, especially in the presence of strangers, obviously
17
implicates traditional expectations of privacy. The conclusion that these highly
18
demeaning and embarrassing searches implicate fundamental interests is considerably
19
20 strengthened in California by Article I, Section 1 of the California Constitution because
21 of its explicit elevation of privacy protections to constitutional dimensions. See Part
22 III(E)(1), supra.

23

Here, plaintiffs contend they were denied equal protection because KCJ provided

24 privacy to prisoners strip searched pursuant to Cal. Penal Code § 4030, but did not

25 provide similar privacy to prisoners like plaintiffs and their putative class. That is,

26 pursuant to § 4030(m) KCJ strip searched misdemeanor and infraction arrestees (for

27 whom a strip search was authorized, see § 4030(f)) in privacy booths, whereas plaintiffs

28 12
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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 18 of 20
1 were strip searched in a group setting, with no privacy. PSUF nos. 13, 16. This unequal
2 treatment of similarly situated prisoners (both groups subjected to strip searches), places
3 the burden on defendants to justify this disparate treatment. In Long Beach City
4 Employees Assn, 41 Cal.3d 937 (1986), the issue was whether a statutory scheme which
5 forbad private employers from requiring employees to take a polygraph examination as 6 a condition of employment, while permitting some public employers to use polygraph 7 examinations, violated the equal protection rights of the employees who could be 8 subjected to polygraph examinations. The California Supreme Court, in ruling that the 9 lie detector tests implicated privacy interests protected by Article I, § 1, held that the “the 10 burden is on the City to demonstrate that the classifications drawn by Labor Code section
11
432.2 and Government Code section 3307 are justified by a compelling governmental
12
interest and that the distinctions drawn are necessary to further that purpose.” 41 Cal.3d
13
at 948 (emphasis added). The “state must establish the unavailability of less offensive
14
alternatives and demonstrate that the statutory intrusion on the cherished right of privacy
15
is drawn with narrow specificity.” 41 Cal.3d at 953.
16
Defendants cannot offer any compelling justification for providing privacy to one
17
group of prisoners strip searched (§ 4030(f) arrestees), but not to prisoners strip searched
18
upon their arrival at the Lerdo jail. An argument of administrative convenience, i.e., it
19
20 was easier and/or less costly to provide privacy to the § 4030(f) prisoners than those like 21 plaintiffs, fails. “It is now well settled that administrative burden does not constitute a 22 compelling state interest which would justify the infringement of a fundamental right.” 23 Central Valley Chap. 7th Step Foundation v. Younger, 95 Cal. App. 3d 212, 238 (1979) 24 (defendants' procedure of sending arrest records to public employers without editing out
25 any arrest which did not result in a conviction is prima facie violation of the state
26 constitutional right of privacy, and administrative burden of screening and editing before
27 complying with the requests for records insufficient justification). An administrative
28 13
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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 19 of 20

1 convenience “justification” is also impeached by the experience of other jails, PSUF nos.

2 27-30, and defendants’ October 2007 policy change – defendants now provide privacy

3 to Lerdo jail arrivals. PSUF no. 26.

4

F. The Entity Defendants Are Liable For The Constitutional Violations.

5

1. Federal Liability

6

When a plaintiff shows that her rights were violated by a municipal policy that

7 caused the constitutional violation, or an established pattern or practice or custom, the

8 entity is liable. Monell v. New York Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978);

9 Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994). The policies challenged here – strip
10 searches of inmates ordered released by a court and routine strip searches of Lerdo jail
11
arrivals in groups – are all policies for which the County of Kern and the Kern County
12
Sheriff’s Department are responsible under Monell. Craft v. County of San Bernardino,
13
468 F. Supp. 2d 1172, 1176 (C.D. Cal. 2006) (County held liable based on its pre-
14
arraignment and post-release strip search policies); Davis v. City of Camden, 657 F. Supp.
15
396, 402-404 (D. N.J. 1987) (same); Ford v. City of Boston, 154 F. Supp.2d 131 (D.
16
Mass. 2001) (same).
17
2. State Liability
18
Because the strip searches were performed by County employees acting within the
19
20 course and scope of their employment, the entity defendants are liable, pursuant to Cal.
21 Gov’t Code § 815.2(a). Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002)

22 (en banc) (California “has rejected the Monell rule and imposes liability on counties

23 under the doctrine of respondeat superior for acts of county employees.”); Perez v. City

24 of Huntington Park, 7 Cal. App. 4th 817, 821 (1992) (A public entity is liable under the

25 doctrine of respondeat superior for the acts of its agents, even if the plaintiff is “unable

26 to identify which employee committed the wrongful act.”).

27 ///

28 14
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Case 1:07-cv-00474-DLB Document 69 Filed 11/07/08 Page 20 of 20

1 IV. CONCLUSION.

2

For the reasons stated above, Plaintiffsrequest that the Court grant partial summary

3 judgment or summary adjudication, finding that defendants’ policies of (1) strip searching

4 inmates in groups without individual privacy, (2) strip searching court-ordered releasees

5 upon return from court, violated plaintiffs’ state and federal constitutional rights.

6 DATED: November 7, 2008

7

LITT, ESTUAR, HARRISON & KITSON, LLP

8

ROBERT MANN & DONALD W. COOK Attorneys for Plaintiffs

9

10

By________________________________________

11

Donald W. Cook

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 15
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGM0E00N37T909.WPD

 
 Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 1 of 12

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF KERN, STATE OF CALIFORNIA
2 By Jennifer L. Thurston, Deputy (Bar # 191821) Administrative Center
3 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301
4 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
5 Attorney for Defendants, DONNY YOUNGBLOOD,
6 MACK WIMBISH, COUNTY OF KERN AND ITS AGENCY KERN COUNTY SHERIFF’S DEPARTMENT
7

8 A PROFESSIONAL CORPORATION Terence J. Cassidy, SBN 99180
9 350 University Ave., Suite 200 Sacramento, California 95825
10 TEL: 916.929.1481 FAX: 916.927.3706
11 Attorneys for Defendant COUNTY OF KERN
12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

15

16 MARSIAL LOPEZ, SANDRA CHAVEZ ) CASE NO. 1:07 CV-00474 DLB

17

THEODORE MEDINA, each individually, and as class

) ) MEMORANDUM OF POINTS AND

18 representatives,

) AUTHORITIES IN SUPPORT OF ) MOTION FOR ENTRY OF JUDGMENT

19

Plaintiffs, ) ON SPECIFIED CLAIMS AND ) CERTIFICATION FOR APPEAL AND

20

vs.

) APPLICATION FOR STAY

)

21 SHERIFF DONNY YOUNGBLOOD,

) ) Fed. R. Civ. P. 54(b)

22

individually and in his official capacity; FORMER SHERIFF MACK

) ) Date:

May 29, 2009

23

WIMBISH, in his individual capacity; COUNTY OF KERN, a governmental

) Time:

9:00 a.m.

) Courtroom: 9

24

entity; KERN COUNTY SHERIFF’S DEPARTMENT, a California public

) ) Judge: Magistrate Judge Dennis L.

25 entity; and DOES 1 through 100,

) Beck )

26

Defendants. ) )

27

28
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1

Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 2 of 12

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Summary

3

The plaintiffs allege that during the period from March 27, 2005 up to October 1,

4 2007, they, and other inmates housed by the Kern County Sheriff’s Office (“KCSO”) were

5 subjected to strip searches that were conducted unlawfully but according to official policy.

6 Thurston Dec ¶ 2. In counter motions for summary adjudication/judgment, the parties

7 addressed the most significant class issues raised by the complaint. Id. at ¶ 3.

8

The plaintiffs challenge two portions of the KCSO “strip search” policy and its customs

9 in implementing it. They assert that the KCSO’ s policy and its custom was unconstitutional

10 because it allowed inmates to be searched in view of other inmates who were also

11 undergoing search. Likewise, they contend that the policy and custom was unlawful

12 because it allowed inmates, who had been ordered “released” at their most recent court

13 appearance, to be strip searched while awaiting confirmation of whether they were, in fact,

14 eligible for release.

15

In ruling on the motions, the Court denied Eleventh Amendment immunity to Sheriff

16 Donny Youngblood and former Sheriff Mack Wimbish as to all federal law issues. Thurston

17 Dec ¶ 4. These defendants are filing notices of appeal as to this final judgment at the same

18 time as the filing of this motion. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy,

19 Inc., 506 U.S. 139, 144 [Denial of Eleventh Amendment immunity is immediately

20 appealable.]. In addition, the Court determined that the County of Kern could be held liable

21 for the strip search policy adopted by the KCSO and determined that searching inmates in

22 groups and after they had been ordered released was unconstitutional. Id. at ¶ 5.

23

In this motion, the defendants (hereafter “County”) seek entry of judgment on the

24 claim that it may be held liable under 42 USC § 1983 for the policies or customs of the

25 KCSO described above. Thurston Dec ¶¶ 5-6. County contends that this issue is

26 inextricably intertwined with the individuals’ entitlement to the protections of Eleventh

27 Amendment immunity and certifying this issue for appeal serves judicial economy and

28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 3 of 12

1 prevents piecemeal appeal. This issue forms the basis for the Court’s determination of

2 County’s liability as to all claims raised under 42 U.S.C § 1983 and, to that extent, County 3 seeks to settle this issue now.1

4

In addition, County seeks entry of judgment on the Court’s determination that

5 searching inmates in groups was unconstitutional. Thurston Dec ¶ 6. County argues here

6 that this is a central issue in the litigation and raises an important issue of law such that

7 appellate review should not be delayed. Therefore, County seeks certification of the order

8 granting plaintiffs’ motion for summary adjudication related to liability under the Fourth

9 Amendment to the United States Constitution and under Article I, section 1of the California

10 Constitution and the denial of County’s motion for summary adjudication on the alleged

11 violation of California Civil Code section 52.1 as it relates to the group strip search issue.

12 Id. at ¶ 5.

13

Finally, County requests the Court stay the remaining and undetermined portions of

14 the matter until completion of the appellate process.

15 II. The Court has the Authority to Certify for Appeal the Specified Claims

16

Federal Rules of Civil Procedure rule 54, subdivision (b) vests the Court with the

17 authority to enter judgment if there is no just reason for delay. This rule provides in pertinent

18 part,

19

When an action presents more than one claim for relief . . . or when multiple

parties are involved, the court may direct entry of a final judgment as to one

20

or more, but fewer than all, claims or parties only if the court expressly

determines that there is no just reason for delay.

21 Id. In Continental Airlines, Inc., v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th

22

Cir. 1987) the Court held,

23

Distinguishing "claims" from theories of recovery for purposes of Rule 54(b)

24

has occasioned a good deal of subtle jurisprudence. A claim, it is true, is less

25

26

1At this time, County does not challenge the substance of the Court’s determination

that strip searching court “releasees” is unconstitutional. Thurston Dec ¶ 5. It does seek to

27 challenge whether the County of Kern can be held liable for this KCSO policy/custom. Id.

at ¶ 5. 28

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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 4 of 12

1

than the central object of a lawsuit and surely more than merely one element

of proof offered in support of a complaint seeking money damages. But the

2

essence eludes the grasp like quicksilver. We agree with Judge Wisdom that

the solution for Rule 54(b) purposes lies in a more pragmatic approach

3

focusing on severability and efficient judicial administration.

4 The Court decided that even though the final rulings below “eliminated none of the parties

5 and left open potentially full recovery in both of Continental's ultimate areas of loss,”

6 certifying the issues for appeal was proper given that it streamlined the action and narrowed

7 the issues. Id.

8

For the reasons set forth below, County contends that there is no just reason to delay

9 entry of judgment on the issues identified which will allow immediate appellate review at the

10 same time as the individuals’ appeal related to denial of Eleventh Amendment immunity.

11

A. A “final” judgment has been issued regarding County’s liability under 42

12

USC § 1983 and as to the lawfulness of searching inmates in groups.

13

In determining a Rule 54 certification motion, the Court must determine first whether

14 a “final” judgment exists. In Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980)

15 the court held that for a judgment to be considered “final” for Rule 54 certification purposes,

16 “It must be a "judgment" in the sense that it is a decision upon a cognizable claim for relief,

17 and it must be "final" in the sense that it is "an ultimate disposition of an individual claim

18 entered in the course of a multiple claims action.”

19

i. Whether the Sheriff is a policymaker for the County of Kern is a

20

“claim” upon which the Court has made a final determination.

21

Whether County is liable for the policies of the KCSO involves analysis of the

22 relationship between the Kern County Board of Supervisors and the Sheriff and the

23 relationship between the Attorney General and the Sheriff as well as other relationships. It

24 requires evaluation of a discrete set of state law and other legal authorities and appears to

25 be a pure question of law. Thurston Dec ¶ 9. Thus, this issue is a “claim” for purposes of

26 Rule 54 certification.

27

Moreover, the Court has determined that County is liable for the policies of the KCSO

28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 5 of 12

1 related to strip searches of inmates. Thurston Dec ¶ 5. Likewise, it has determined that

2 these KCSO policies were unconstitutional. Id. at ¶¶ 5-6. There are no remaining questions

3 related to liability on this topic. Thus, the Court’s ruling is a final disposition of the issue of

4 County’s responsibility for the KCSO policies and is appropriate for Rule 54 certification.

5

This issue is intertwined with the Court’s denial of Eleventh Amendment immunity

6 about which Youngblood and Wimbish are seeking appellate review. Thurston Dec ¶ 7.

7 Judicial economy dictates that the entirety of the issue be decided on appeal now rather

8 than in a piecemeal fashion. For example, County’s intention is to appeal the issue of its

9 liability for the KCSO policies when operating the jail at the entry of judgment, whether this

10 occurs now or in the future. Id. at ¶ 7. On the other hand, addressing this issue on appeal

11 now would assist in the possibility of settlement because, no matter how County’s appeal

12 is decided, it would assist in clarifying the availability of insurance coverage. Id. at ¶ 8.

13

ii. Whether the policy of strip searching inmates in groups was

14

unconstitutional is a “claim” upon which the Court has made a

15

final determination.

16

The set of facts regarding strip searches of inmates in groups is discrete from the

17 issues remaining in the case that have not yet been determined. Thurston Dec ¶ 9. It is

18 discrete also from the determination that strip searching court “releasees” is unconstitutional

19 both legally and factually. Id. Instead, appellate review of the lawfulness of strip searching 20 inmates in groups involves a pure question of law.2 Id. Thus, this issue is a “claim” for

21 purposes of Rule 54 certification.

22

The fact that the plaintiffs relied upon this manner of searching as support for several

23 different causes of action does not militate against finding that the issue is a claim for

24 purposes of Rule 54 certification. Instead, a “claim” “refers to a set of facts giving rise to

25 legal rights in the claimant, not to legal theories of recovery based upon those facts.” CMAX,

26

27

2This is true because the defendants do not deny the content of the policy, how it was

implemented or how and when strip searches were conducted as this relates to this issue. 28

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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 6 of 12

1 Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961) The Court in CMAX Inc.

2 warned, “It does not seem to us to be good judicial administration, or a reasonable

3 construction of Rule 54(b), to have both this court and the district court simultaneously

4 passing upon what is in substance the identical claim, we dealing with one theory, but

5 basically the same facts, under the second count, and the district court dealing with another

6 other theory, but basically the same facts, under the first count.” Id. Thus only where

7 factual questions overlap with issues not on appeal are courts reluctant to grant certification.

8

The Court’s ruling determining that the defendants’ action in strip searching inmates

9 in groups was unlawful, is a final determination which makes the entity liable in this case.3

10 Thurston Dec ¶¶ 5-6. Therefore, this determination is of a “claim” in the lawsuit. As a result,

11 the entity seeks certification of the “group strip search claim” that includes the Court’s ruling

12 that strip searching in groups violated the Fourth Amendment to the United States

13 Constitution. Id. at ¶ 6. As to the individual defendants and the entity, the defendants seek

14 certification of the Court’s ruling that strip searching in groups violated Article I, Section 1 of

15 the California Constitution and that it forms an underlying basis for liability under California

16 Civil Code section 52.1. Id.

17

B. There is no just reason to delay appeal of the identified issues.

18

The second step in determining the Rule 54 certification motion requires the Court

19 to evaluate whether there are just reasons to delay the appeal. Curtiss-Wright Corp. v.

20 General Elec. Co., supra, 446 U.S. at 8. The Court is required to “take into account judicial

21 administrative interests as well as the equities involved” and, in doing so, consider such

22 factors as whether “the claims under review were separable from the others remaining to be

23 adjudicated and whether the nature of the claims already determined was such that no

24 appellate court would have to decide the same issues more than once even if there were

25 subsequent appeals.” Id. One of the most important factors the Court is required to evaluate

26 is the “interrelationship of the claims so as to prevent piecemeal appeals.” Id. at 10.

27 3Youngblood and Wimbish were granted qualified immunity on this topic.
28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 7 of 12

1 However, if the Court finds “a sufficiently important reason for nonetheless granting

2 certification,” that one of the factors mitigates against granting the certification motion is not

3 determinative. Id. at n. 2.

4

In General Acquisition, Inc. v. Gencorp, Inc., 23 F.3d 1022, 1030 (9th Cir. 1994), the

5 Court held that there is no “precise test” for determining if just cause exists to delay the

6 appeal. However, the Court articulated a “nonexhaustive list of factors which a district court

7 should consider when making a Rule 54(b) determination." Id. The Court identified the

8 suggested factors to consider as,

9

(1) the relationship between the adjudicated and unadjudicated claims; (2) the

possibility that the need for review might or might not be mooted by future

10

developments in the district court; (3) the possibility that the reviewing court

might be obliged to consider the same issue a second time; (4) the presence

11

or absence of a claim or counterclaim which could result in set-off against the

judgment sought to be made final; (5) miscellaneous factors such as delay,

12

economic and solvency considerations, shortening the time of trial, frivolity of

competing claims, expense and the like.

13

14 Id. “Rule 54(b) certification is proper if it will aid ‘expeditious decision’ of the case. [Citation]

15 ‘The Rule 54(b) claims do not have to be separate from and independent of the remaining

16 claims.’ [Citation] However, Rule 54(b) certification is scrutinized to 'prevent piecemeal

17 appeals in cases which should be reviewed only as single units.'" Texaco, Inc. v. Ponsoldt, 18 939 F.2d 794, 797 (9th Cir. 1991).

19

As noted above, there is no factual or legal relationship between the matters not

20 decided by the Court or the issue of strip searching court “releasees” and those issues

21 sought to be appealed. Thurston Dec ¶ 10. Likewise, no development in the trial court,

22 outside of sua sponte reversal of the orders by the Court, will moot the need for appellate

23 review of the identified issues. Id. at ¶ 10. However, decisions on the appealed issues could

24 streamline the trial on the remaining issues. Id. For example, each plaintiff alleges claims

25 against the entity and the individuals. Id. Thus, a determination that the Sheriff acted for the

26 state, rather than the County, would preclude further litigation. Id. Likewise, a determination

27 that strip searching inmates in groups was lawful would effectively cut the lawsuit in half but,

28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 8 of 12

1 in terms of prospective class members, it would reduce the size to a mere fraction of those

2 that would otherwise be class members. Id. at ¶¶ 10-11.

3

The trial, when held, could be greatly shortened by the appeal because if County is

4 successful, the number of plaintiffs would be significantly reduced and there would be fewer

5 issues to determine. Thurston Dec ¶¶ 10-11. This, in turn, would reduce the amount of time

6 the Court would require to spend and the amount of time the parties would spend in

7 discovery and would preserve the economic resources of the Court and the parties. Id.

8 Resources would be preserved also because the need for notifying prospective members

9 of the group strip search class could be rendered unnecessary depending upon the results

10 on appeal. Id.

11

Finally, because the matter is being appealed by Youngblood and Wimbish as of

12 right, there seems little justification for failing to obtain an appellate determination as to all

13 ripe issues at this time. Thurston Dec ¶ 4. Because the issues are distinct from those not

14 appealed or determined, the Court of Appeals would not decide the same issue more than

15 once. Id. at ¶¶ 4, 7-8. Therefore, based upon the factors announced in General Acquisition,

16 Inc. v. Gencorp, County requests the Court certify the following claims:

17

1. The claim that the County of Kern may be held liable under 42 U.S.C. § 1983

18

for the policies of the Sheriff as they relate to operation of the jail;

19

2. The claim that strip searching inmates in groups is unlawful which includes the

20

Court’s ruling that strip searching in groups violated the Fourth Amendment

21

to the United States Constitution and Article I, Section 1 of the California

22

Constitution and that it forms an underlying basis for liability under California

23

Civil Code section 52.1.

24 III. The Claims at Issue are Justiciable

25

A. The Defendants Have Standing to Appeal

26

The defendants here have standing to appeal because they were parties who

27 participated in the proceedings below. Thurston Dec ¶¶ 3-6. They are aggrieved by the

28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 9 of 12

1 decision of the Court which determined that they are liable for conducting strip searches in

2 groups and, in the case of the entity, that it is liable for the policies of the Sheriff when 3 operating the jail. Id.; Hoover v. Switlik Parachute Co., 663 F.2d 964, 966 (9th Cir. 1981)

4 [Determination of an issue of liability unfavorably to the defendant/appellant is sufficient to

5 demonstrate standing to appeal.].

6

B. The Issues Have Not Become Moot

7

County knows of no facts that have made moot the issues sought to be raised on

8 appeal. Thurston Dec ¶ 10.

9

C. The Controversy is Ripe for Appeal

10

The Court has made a final determination that the defendants are liable to classes

11 of plaintiffs. Thurston Dec ¶¶ 5-6. Thus, any opinion issued by the Court of Appeal would

12 not be advisory but would determine an actual case and controversy. (Vieux v. E. Bay Reg'l 13 Park Dist., 906 F.2d 1330, 1344 (9th Cir. 2003) [“The ripeness doctrine prevents courts from

14 deciding abstract issues that have not yet had a concrete impact on the parties.”].

15 IV. Good Cause Exists to Stay the Non-Appealed Portions of the Case

16

The Court has the inherent power to stay the case to allow the appeal to proceed. In

17 CMAX, Inc. v. Drewry Photocolor Corp., supra, 295 F.2d at 268, the Court held,

18

A district court has inherent power to control the disposition of the causes on

its docket in a manner which will promote economy of time and effort for itself,

19

for counsel, and for litigants. The exertion of this power calls for the exercise

of a sound discretion. Where it is proposed that a pending proceeding be

20

stayed, the competing interests which will be affected by the granting or

refusal to grant a stay must be weighed. Among these competing interests are

21

the possible damage which may result from the granting of a stay, the

hardship or inequity which a party may suffer in being required to go forward,

22

and the orderly course of justice measured in terms of the simplifying or

complicating of issues, proof, and questions of law which could be expected

23

to result from a stay.

24

County contends that good cause exists to stay the proceedings as to those issues

25 not subject to appellate review. Thurston Dec ¶¶ 10-12. First, proceeding with the remainder

26 of the case will be extremely costly and these costs could be determined to be unnecessary

27 depending upon the outcome of the appeal. Id. For example, notification of potential class

28
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Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 10 of 12

1 members will be very costly in terms of resources, time and money. Id. However, should

2 County succeed on appeal and it is determined that these defendants cannot be held liable,

3 notification to the group strip search class will be unnecessary. Id.

4

Second, if County does not succeed on appeal but notification to the “Post Release

5 Class” has occurred, re-notice to this class will be necessary because of their potential

6 inclusion in the “Group Strip Search” class also. Thurston Dec ¶¶ 10-12. Not only is this a

7 duplication of cost of resources, it is prejudicial in that it gives these prospective class

8 members more than the one opportunity to join in or opt out of the class although

9 prospective members of the other class will have only one opportunity. Id. Moreover, it will

10 require moving forward on a damage determination either through “mini-trials” of

11 representative plaintiffs’ cases and/or through negotiation without regard for the need for the

12 same effort as to the other defined class. Id.

13

Third, proceeding with the determination of the named plaintiffs’ claims is potentially

14 wasteful of the Court’s time because County’s appeal will challenge the primary bases upon

15 which the plaintiffs rely for their assertions of liability. Thurston Dec ¶¶ 10-12. In the event

16 of success of the appeal, there is a significant probability of inconsistent determinations. Id.

17 Fourth, a stay will allow for the orderly administration of this case, is not sought for any

18 improper purpose and the defendants know of no prejudice that will result thereby. Thurston

19 Dec ¶ 12.

20 V. Conclusion

21

For the reasons set forth, certification of the identified issues for purposes of appeal

22 will serve the interests of judicial economy and will not pose the risk of piecemeal appeals

23 and, in fact, will avoid the probability of piecemeal appeals. Therefore, County requests the

24 Court grant the motion and certify the issues identified above for immediate appeal.

25 ///

26 ///

27 ///

28
Mem orandum of Points & Authorities in Support of Rule 54 Certification Motion and Request for Stay
10

Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 11 of 12

1

Likewise, ordering a stay of the action would avoid waste of resources and duplication

2 of efforts and would allow for the orderly administration of the balance of the case. Thus,

3 County urges the Court to stay the proceedings to allow completion of the appeals.

4

5 Dated: April 28, 2009

OFFICE OF THE COUNTY COUNSEL

6

7

By /s/ Jennifer L. Thurston

Jennifer L. Thurston, Deputy

8

Attorneys for Donny Youngblood, Mack

Wimbish, the County of Kern and its agency the

9

Kern County Sheriff’s Department

10

11 Dated: April 27, 2009 12 13 14 15

PORTER SCOTT A PROFESSIONAL CORPORATION
By /s/ Michael W. Pott Michael W. Pott Terence J. Cassidy Kristina M. Hall Attorney for Defendant COUNTY OF KERN

16 #178302.1

17

18

19

20

21

22

23

24

25

26

27

28
Mem orandum of Points & Authorities in Support of Rule 54 Certification Motion and Request for Stay
11

Case 1:07-cv-00474-DLB Document 94-1 Filed 04/28/09 Page 12 of 12
PROOF OF SERVICE

1

Lopez, et al. v. County of Kern, et al.

USDC(E) Case No. 07-CV-00474-LJO-DLB

2

Page 1 of 1

3

I am over the age of eighteen years and not a party to the within action; my business address

is 1115 Truxtun Avenue, Fourth Floor, Bakersfield, CA 93301.
4

On the date last written below, I served the attached MEMORANDUM OF POINTS AND
5 AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF JUDGMENT ON SPECIFIED CLAIMS

AND CERTIFICATION FOR APPEAL AND APPLICATION FOR STAY on the party(ies) listed below,
6 through their attorneys of record, if any, by facsimile transmission, by personal delivery or by placing

7 true copies/originals thereof in sealed envelope(s) addressed/designated as shown below:

8 A.
9
10
11
12
B.
13

BY MAIL - I enclosed such document in sealed envelope(s) with the name(s) and address(es) of the person(s) served as shown on the envelope(s) and caused such envelope(s) to be deposited in the mail at Bakersfield, California. The envelope(s) was/were mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
BY OVERNIGHT SERVICE - I caused each such envelope to be delivered by overnight service to the addressee(s) noted below.

14 C. 15 16 17

BY FACSIMILE SERVICE - I placed such document in a facsimile machine (pursuant to California Rules of Court, Rule 2003(3)) with the fax number of (661) 868-3805. Upon facsimile transmission of the document, I obtained a report from the transmitting facsimile machine stating that the facsimile transmission was complete and without error. A copy of the transmission report is attached to this Proof of Service pursuant to California Rules of Court, Rule 2008(e).

18 D. 19 20 21 22 23
___
24 25 _X_ 26 27 28

BY PERSONAL SERVICE - I caused such envelope(s) to be delivered by hand to the addressee(s) listed below.

TYPE OF SERVICE

ADDRESSEE

FAX NO.

A

DONALD W COOK ESQ

MANN & COOK

3435 WILSHIRE BLVD #2900

LOS ANGELES CA 90010

(STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

(FEDERAL) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

Executed on April 28, 2009, at Bakersfield, California.

/s/ Dania Moser Dania Moser

#154201

 
 Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 1 of 8

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

MARSIAL LOPEZ, et al.,

) 1:07cv0474 DLB

9

)

)

10

) ORDER REGARDING MOTION FOR ENTRY

) OF JUDGMENT ON SPECIFIED CLAIMS

11

Plaintiffs,

) AND CERTIFICATION OF CLAIMS FOR

) APPEAL

12

v.

)

)

13 DONNY YOUNGBLOOD, et al.,

) (Document 94)

)

14

)

)

15

Defendants.

)

)

16

17

On April 28, 2009, Defendants County of Kern, Kern County Sheriff’s Office, Donny

18 Youngblood and Mack Wimbish filed the instant motion for entry of judgment pursuant to

19 Federal Rule of Civil Procedure 54(b). The matter was heard on June 26, 2009, before the

20 Honorable Dennis L. Beck, United States Magistrate Judge. Barrett Litt and Paul Estuar

21 appeared telephonically on behalf of Plaintiffs. Jennifer Thurston and Terence Cassidy appeared

22 on behalf of Defendants.

23

BACKGROUND

24

Plaintiff Marsial Lopez, individually and as class representative, filed the instant civil

25 rights action on March 27, 2007. On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez,

26 and Theodore Medina, individually and as class representatives, filed a First Amended

27 Complaint (“FAC”) against Kern County, the Kern County Sheriff’s Department, Kern County

28 Sheriff Donny Youngblood (officially and individually) and former Kern County Sheriff Mack

1

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 2 of 8

1 Wimbish (individually). Plaintiffs seek injunctive relief and damages resulting from the strip

2 and/or visual body cavity searches of prisoners by the Kern County Sheriff’s Department.

3

The FAC contains six causes of action: (1) damages pursuant to 42 U.S.C. § 1983

4 premised on unreasonable searches and seizures in violation of the Fourth and Fourteenth

5 Amendments of the U.S. Constitution; (2) damages pursuant to 42 U.S.C. § 1983 premised on

6 violation Fourteenth Amendment equal protection guarantees; (3) violation of their equal

7 protection rights pursuant to Article I, § 7 of the California Constitution and unreasonable search

8 and seizure in violation of Article I, § 13 of the California Constitution; (4) damages pursuant to

9 California Civil Code § 52.1(b) and § 52(b) premised on violations of their rights under the

10 Fourth, Eighth and Fourteenth Amendments, Article I, §§ 1, 7, 13 and 17 of the California

11 Constitution, and California Penal Code § 4030; (5) violation of California Penal Code § 4030;

12 and (6) violation of mandatory duties under California Government Code § 815.6.

13

On March 31, 2009, the Court issued an order on the parties’ cross motions for summary

14 judgment. In its Order, the Court: (1) granted Plaintiffs summary judgment/adjudication as to

15 KCSO’s policy of group strip searching prisoners in violation of the Fourth Amendment; (2)

16 granted Plaintiffs summary judgment/summary adjudication as to KCSO’s policy of strip

17 searching persons ordered released from custody in violation of the Fourth Amendment; (3)

18 granted Plaintiffs’ motion for partial summary judgment/summary adjudication regarding

19 violation of California Constitution, Article I, Section 1; (4) denied without prejudice

20 Defendants’ motion for summary adjudication regarding Plaintiffs’ state law claims pursuant to

21 California Civil Code section 52.1; (5) granted Defendants’ motion for summary adjudication

22 that Defendants Youngblood and Wimbish are entitled to qualified immunity regarding

23 Plaintiffs’ Fourth Amendment claims specific to group strip searches; (6) denied Defendants’

24 motion for summary adjudication that Defendants Youngblood and Wimbish are entitled to

25 qualified immunity regarding the searches of detainees upon return from court appearances after

26 they were ordered released; (7) denied Defendants’ motion for summary adjudication against

27 Plaintiffs’ causes of action for § 1983 claims on the ground that the Sheriffs are state actors and

28

2

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 3 of 8

1 are entitled to Eleventh Amendment immunity; and (8) denied Defendants’ motion for summary

2 adjudication as to § 1983 claims asserted against the County.

3

On April 1, 2009, the Court also granted Plaintiffs’ motion for class certification. The

4 Court certified the following classes:

5

Post-Release Class: Persons who, from March 27, 2005, up to October 1, 2007, or the

time of judgment or settlement of the case: (a) were in KCSD custody; (b) were taken

6

from jail to court; (c) became entitled to release after going to court; and (d) were strip

and/or vbc searched before release pursuant to KCSD’s blanket policy, practice and/or

7

custom to strip/vbc search all court returns, including those entitled to release.

8

Group Strip Search Class: Persons who, from March 27, 2005, up to October 1, 2007, or

the time of judgment or settlement of the case: (a) were in KCSD custody; (b) were

9

subjected to a strip and/or vbc search in a group with other inmates also being strip/vbc

searched, which search did not afford privacy from others; and (c) whose strip searches

10

were conducted pursuant to KCSD’s blanket policy, practice and/or custom to regularly

conduct strip/vbc searches in a group setting.

11

On April 28, 2009, Defendants Sheriff Donny Youngblood and former Sheriff Mack

12

Wimbish filed a notice of appeal as to the Court’s determination that they were not entitled

13

Eleventh Amendment immunity as to Plaintiffs’ section 1983 claims. The appeal was processed

14

to the Ninth Circuit on May 13, 2009, and has been assigned USCA Case Number 09-16006.

15

On April 28, 2009, Defendants County of Kern, Kern County Sheriff’s Office, Donny

16

Youngblood and Mack Wimbish also filed the instant motion for entry of judgment pursuant to

17

Federal Rule of Civil Procedure 54(b). Defendants move the Court to certify the following

18

issues for immediate appeal: (1) whether the County of Kern may be held liable under 42 U.S.C.

19

§ 1983 for the policies of the Sheriff as they relate to operation of the jail; (2) whether strip

20

searching inmates in groups violated the Fourth Amendment to the United States Constitution;

21

(3) whether strip searching inmates in groups violated Section 1 of the California

22

Constitution; and (4) whether strip searching inmates in groups forms an underlying basis for

23

liability under California Civil Code section 52.1. Defendants applied for a stay as to the

24

remaining issues. Defendants supported their motion with the declaration of counsel, Jennifer

25

Thurston.

26

Plaintiffs filed their opposition to the motion on May 15, 2009, along with the declaration

27

of counsel, Barrett Litt.

28

3

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 4 of 8

1

Defendants filed a reply on May 22, 2009. On that same date, Defendants filed a motion

2 for certification of issues for immediate interlocutory review pursuant to 28 U.S.C. § 1292, for

3 amendment of the Court’s March 31, 2008, order and for a stay pending appeal. Similar to the

4 Rule 54(b) motion, the motion for interlocutory review includes, but is not limited to the issue of

5 the constitutionality of group strip searches of post-arraignment detainees and inmates under the

6 Fourth Amendment and the issue of the County’s status as a potentially improper party based on

7 Eleventh Amendment immunity of the Sheriff defendants. The interlocutory review motion was

8 heard on the same day as the instant motion.

9

DISCUSSION

10 A. Legal Standard

11

Rule 54(b) of the Federal Rules of Civil Procedure allows for the entry of final judgment

12 with respect to less than all parties or claims in an action if the court makes “an express

13 determination that there is no just reason for delay” and expressly directs “entry of judgment.” 14 Fed. R. Civ. P. 54(b).1 In making a determination under Rule 54(b), the court must first

15 determine that it is dealing with a final judgment, which means a decision that is “an ultimate

16 disposition of an individual claim entered in the course of a multiple claims action.”

17 Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980); Sears, Roebuck & Co. v.

18 Mackey, 351 U.S. 427, 436 (1956). Second, the court must determine whether there is any just

19 reason for delay. Curtiss-Wright Corp., 446 U.S. at 7. In sum, Rule 54(b) requires the presence

20 of three conditions: (1) multiple claims or multiple parties; (2) at least one claim or the rights and

21 liabilities of one party have been finally decided; and (3) there is no just reason for any delay in

22 entering judgment and allowing an appeal. See 10 Wright, Miller & Kane, Federal Practice and

23 Procedure: Civil 3d § 2656 (1998).

24

25

26

27

1Fed. R. Civ. P. 54(b) states: “W hen an action presents more than one claim for relief–whether as a claim,

counterclaim, crossclaim, or third-party claim–or when multiple parties are involved, the court may direct entry of a

28 final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there
is no just reason for delay.”

4

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 5 of 8

1

B. Analysis

2

1. Final Determination

3

Defendant County requests entry of judgment on the following: (1) the County’s section

4 1983 liability for the policies or customs of KCSO; and (2) the Court’s determination that

5 searching inmates in groups is unconstitutional, including liability under the Fourth Amendment,

6 Article I, Section 1 of the California Constitution and California Civil Code section 52.1.

7 Defendants contend that the Court has made final determinations on these “claims.”

8

Plaintiffs counter that Defendants’ basis for an appeal falls short because, despite a liability

9 determination, there has been no damages determination. As noted by Plaintiffs, the Ninth Circuit

10 has held that “a judgment is not final as to one entire claim under 28 U.S.C. § 1291, or under

11 F.R.Civ.P. 54(b) if it decides only liability and leaves open the question of relief.” Wolf v. Banco

12 Nacional de Mexico, S.A., 721 F.2d 660, 662 (9th Cir. 1983) (an appeal did not lie under Rule

13 54(b) where the judgment addressed liability on one claim but did not address any requested

14 damages or attorney’s fees); cf. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976)

15 (discussing § 1291 and indicating no finality where assessment of damages or awarding of other

16 relief remains to be resolved); Hain Pure Food Co., Inc. v. Sona Food Products Co., 618 F.2d 521,

17 522 (9th Cir. 1980) (discussing § 1292 and concluding that the determination of liability alone is

18 not a final judgment); United States v. Southern Pac. Transp. Co., 543 F.2d 676, 681 n. 5 (9th Cir.

19 1976) (district court decided only the issue of liability, without deciding what relief would be

20 appropriate, and therefore the judgment was not final as to one entire claim and not appealable

21 under § 1291).

22

As to the issues identified by the Defendants for entry of judgment, the Court has ruled on

23 the County’s section 1983 liability and the unconstitutional nature of the group strip searches,

24 without deciding what relief and/or damages would be appropriate. Defendants have not 25 adequately addressed the absence of a damages ruling in their papers.2 At oral argument,

26

27

2Defendant County objected to the lateness of Plaintiffs’ opposition, noting it was due on May 12, 2009, but

was not filed and served electronically until May 15, 2009. Based on the original hearing date of May 29, 2009,

28 Plaintiffs’ opposition was late pursuant to the Local Rules. Local Rule 78-230(c) requires either personal service 14
days before the hearing or electronic service 17 days before the hearing. However, Defendants were able to file a

5

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 6 of 8

1 Defendants acknowledged that entry of judgment would place these issues in an unusual posture on

2 appeal where there has been no ruling on damages. Absent a damage determination or resolution

3 as to relief, the Court finds that judgment is not final as to one entire claim and therefore not

4 appropriate for entry of judgment pursuant to Rule 54(b).

5

2. No Just Reason to Delay Appeal

6

Defendants cite General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030 (6th Cir.

7 1994), which lists factors to consider when making a Rule 54(b) determination regarding a just

8 reason for delay. In that case, the court noted that “[n]o precise test exists for determining whether

9 there is a just reason to delay,” but articulated factors for consideration to include:

10

(1) the relationship between the adjudicated and unadjudicated claims; (2) the

possibility that the need for review might or might not be mooted by future

11

developments in the district court; (3) the possibility that the reviewing court might

be obliged to consider the same issue a second time; (4) the presence or absence of a

12

claim or counterclaim which could result in set-off against the judgment sought to

be made final; (5) miscellaneous factors such as delay, economic and solvency

13

considerations, shortening the time of trial, frivolity of competing claims, expense

and the like.

14

Id. at 1030.

15

Applying the General Acquisition factors, Defendants submit the declaration of counsel and

16

aver that (1) there is no factual or legal relationship between the matters not decided by the Court

17

or the issue of strip searching court “releasees” and those issues sought to be appealed; (2) no

18

development in the trial court (outside of sua sponte reversal by the Court) will moot the need for

19

appellate review of the identified issues; (3) decisions on the appealed issues could streamline the

20

trial on the remaining issues, e.g., an appellate determination that the Sheriff acted for the state, not

21

the County, would preclude further litigation or a determination that group strip searches were

22

lawful would cut the lawsuit in half and reduce prospective class members to a “mere fraction”; (4)

23

the trial could be greatly shortened if the County is successful because of the reduced number of

24

plaintiffs and issues; (5) the Court’s time and the parties’ time would be reduced and economic

25

resources preserved, including the need for notifying prospective class members; (6) the matter is

26

27
reply to the opposition on May 22, 2009, and have not demonstrated any prejudice resulting from the late-filed
28 opposition. On May 26, 2009, the Court rescheduled the original hearing date to coincide with the hearing on
Defendants’ motion pursuant to 28 U.S.C. § 1292(b).

6

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 7 of 8

1 being appealed by Youngblood and Wimbish as of right so there is little justification for failing to

2 obtain appellate review as to all ripe issues; and (7) the issues are distinct from those not appealed

3 and the Court of Appeals would not decide the same issue more than once. Thurston Decl., ¶¶ 4,

4 7-8, 10-11.

5

In their briefing, Defendants miscite General Acquisition as a Ninth Circuit case, and

6 contend that the Court should apply these five factors. General Acquisition is a case from the

7 Sixth Circuit and is not binding. At a minimum, however, the Court “must take into account

8 judicial administrative interests as well as the equities involved,” including such factors “as

9 whether the claims under review [are] separable from the others remaining to be adjudicated and

10 whether the nature of the claims already determined [is] such that no appellate court would have to

11 decide the same issues more than once even if there were subsequent appeals.” Curtiss-Wright

12 Corp., 446 U.S. at 8 (noting that one factor may be offset by another).

13

Plaintiffs counter that if Defendants appeal the post-release liability determination in the

14 future, granting a Rule 54(b) judgment “would result in piecemeal appeals involving the same

15 basic set of facts.” Opposition, p. 7. Plaintiffs contend that the asserted justifications for strip

16 searching persons post-release, which is not the subject of the instant motion, are the same as those

17 asserted for group strip searches and, thus, the Court of Appeals would have to review the same

18 evidence more than once. A similarity of legal or factual issues weigh heavily against entry of

19 judgment under Rule 54(b) and such an order “will be proper only where necessary to avoid a

20 harsh and unjust result.” Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir.

21 1981). Although Defendants argue that there is no factual similarity between the group search

22 class and the post-release strip search class, the Court notes that there is an overlap in asserted

23 justifications for the group searches and the post-release searches, which weighs against entry of

24 judgment.

25

CONCLUSION

26

Based on the above, Defendants’ motion for entry of judgment on specified claims and

27 certification of claims for appeal pursuant to Fed. R. Civ. P. 54(b) is DENIED. As the Court has

28

7

Case 1:07-cv-00474-DLB Document 114 Filed 07/01/09 Page 8 of 8

1 declined to enter judgment pursuant to Fed. R. Civ. P. 54 (b), the corresponding application for

2 stay also is DENIED.

3

4

IT IS SO ORDERED.

5

Dated: June 30, 2009

3b142a

6

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

7

8

9

10

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12

13

14

15

16

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8

 
 Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 1 of 12

1 Barrett S. Litt, SBN 45527

Paul J. Estuar, SBN 167764

2 E-Mail: pestuar@littlaw.com

LITT, ESTUAR & KITSON, LLP

3 1055 Wilshire Boulevard, Suite 1880
Los Angeles, California 90017

4

Telephone: (213) 386-3114 Facsimile: (213) 380-4585

5 Robert Mann, SBN 48293

6

Donald W. Cook, SBN 116666 E-Mail: doncook@earthlink.net

7

Attorneys at Law 3435 Wilshire Boulevard, Suite 2900

8

Los Angeles, California 90010 Telephone: (213) 252-9444

9 Facsimile: (213) 252-0091

10 Attorneys for Plaintiffs

11

PORTER SCOTT A PROFESSIONAL CORPORATION

12 Terence J. Cassidy, SBN 99180
Kristina M. Hall, SBN 196794

13 350 University Avenue, Suite 200

Sacramento, California 95825
14 Telephone: (916) 929-1481

15 Facsimile: (916) 927-3706

16 Attorneys for Def. COUNTY OF KERN

Mark L. Nations,Chief Deputy, SBN 101838 Office of the County Counsel 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH

17

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA

20 MARSIAL LOPEZ, SANDRA

21

CHAVEZ, THEODORE MEDINA, each individually, and as class

22 representatives,

23 vs.

Plaintiffs,

24 SHERIFF DONNY YOUNGBLOOD, 25 et al.,

26

Defendants.

Case No. CV-F-07-0474 DLB [Hon. Dennis L. Beck]
PRELIMINARY APPROVAL ORDER

Date:

August 26, 2011

Time:

9:30 A.M.

Courtroom: 9

27 {00868293.DOC} 1
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 2 of 12

1

Upon review and consideration of the Settlement Agreement (a copy of

2 which is attached to this Order as Exhibit A) and the exhibits attached thereto (the

3 “Settlement Agreement”) made and entered into on January 26, 2011, between the

4 Named Plaintiffs in the above-captioned action (the “Class Representatives”),

5 individually and as representatives of the classes certified in this case, and the

6 Defendants, County of Kern et al.,

7

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

8 I.

PRELIMINARY APPROVAL OF SETTLEMENT

9

1. This Order incorporates by reference the definitions in the Settlement

10 Agreement (Exhibit A), and also incorporates Exhibits B through D, thereto. All

11 terms defined therein shall have the same meaning in this Order. The Court has

12 jurisdiction over this settlement pursuant to the Order of Conditional Dismissal

13 from the Ninth Circuit attached as Exhibit E.

14

2. The Settlement Agreement is hereby preliminarily approved, subject

15 to further consideration thereof, and final approval, at or after the Fairness Hearing

provided for below. The Court finds that Defendants’ proposed payment of the 16

following amounts (each of which is in addition to the other) are within the range 17

of what would constitute a fair, reasonable, and adequate settlement in the best 18

interests of the Class as a whole: 19
(a) A person who was subjected for the first time during the class period 20
(between March 27, 2005, and October 1, 2007) to a Kern County

21 strip search after a Court ordered him or her to be released from all

22 pending charges, and the person was in fact entitled to immediate

23 release based on that order, will receive a payment of $1500 (subject

24

to certain possible adjustments described below in ¶ 2(d)).

25

(b) A person who was subjected for a second time during the class period

26

(between March 27, 2005, and October 1, 2007) to a Kern County

27 {00868293.DOC} 2
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 3 of 12

1

strip search after a Court ordered him or her to be released from all

2

pending charges, and the person was in fact entitled to immediate

3

release based on that order, will receive a payment of $750 in addition

4

to the $1500 for the first strip search (again subject to certain possible

5

adjustments described below in ¶ 2(d)). No additional payments will

6

be made to persons subjected to more than two such searches.

7

(c) A person who was strip searched in a group while in Kern County

8

custody will receive a one time only payment (regardless of the

9

number of times the person was strip searched in a group) of $200

10

(subject to certain possible adjustments described below in ¶ 2(d)).

11

(d) Notwithstanding the amounts set forth above to be paid to each class

12

member, the parties have agreed to a maximum payout for each class,

13

the amount of which was derived from their joint estimate that claims

14

are unlikely to exceed approximately 28% of the class members (and,

15

based on past experience, will likely be meaningfully lower than that).

Accordingly, the amounts to be paid Class Members (not including 16

class representatives) will be adjusted if the amount to be awarded 17

eligible Class Members in either the Post-Release or Group Strip 18

Search who make claims exceeds the total amount to be paid to that 19
Class. In that event, the amount that members of that class receive 20
will be adjusted on a pro-rated basis, which would result in payment

21 to individual Class Members of amounts lower than those set forth

22 above. The total amount paid to Post-Release Class Members is

23 capped at $2,335,830.00, and if claims exceed that, they will be

24

adjusted on a pro-rated basis so that the total payment to such Post-

25

Release Class Members (first and second time combined) will not

26

exceed that total. The amount paid to Group Strip Search Class

27 {00868293.DOC} 3
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 4 of 12

1

Members is capped at $2,016,000.00, and if claims exceed that, they

2

will be adjusted on a pro-rated basis so that the total payment to such

3

Group Strip Search Class Members will not exceed that total.

4

(e) Class administration costs.

5

(f) $2,000,000 in attorneys’ fees and costs, plus class counsel costs not to

6

exceed $65,000.

7

(g) $30,000 damages award to each Named Plaintiff, of whom there are

8

three.

9

3. The Court approves the publication of summary class notice, as set

10 forth in the Settlement Agreement.

11

4. Defendants shall pay the Class Administrator all sums necessary to

12 effectuate the terms of the Settlement Agreement and this Order, as set forth in the

13 Settlement Agreement.

14

5. The Court preliminarily concludes that the terms of the Settlement

15 Agreement satisfy the Federal Rules of Civil Procedure 23(e) and due process

requirements. 16

II. 17

DEADLINES FOR NOTICE, FILING OBJECTIONS AND OPTOUTS, AND DATE OF FAIRNESS HEARING

18

6. The Court has set the following dates for purposes of this class action: 19

(a) Final class identifying information has already been provided to the 20
class administrator in computerized form by the Defendants or will be 21
within ten (10) days of the date of this Order; 22
(b) Mailing Class and Settlement Notice, and Claim Forms, to Class 23
Members, as defined in the Settlement Agreement (Exhibit A), to be

24

completed within two consecutive business days from start to finish.

25

The first such mailing must be postmarked by March 14, 2011, and

26

the last such mailing must be postmarked within one business day

27 {00868293.DOC} 4
28
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29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 5 of 12

1

thereafter;

2

(c) Publication of summary notice as provided in the Settlement

3

Agreement (Exhibit A): effected by April 4, 2011;

4

(d) Filing of Plaintiffs’ Motion for Award of Attorneys’ Fees and Costs:

5

Must be filed by May 9, 2011;

6

(e) Filing of Class Members’ Objections to any aspect of the Settlement

7

(including Plaintiffs’ Motion for Approval of Settlement of

8

Attorneys’ Fees and Costs): Must be filed by June 13, 2011;

9

(f) Deadline to opt-out: Must be postmarked or received by July 13,

10

2011;

11

(g) Deadline for filing class claims: Must be postmarked or received by

12

July 13, 2011;

13

(h) Filing of Opposition or Reply to Objections (including to objections

to award of attorneys’ fees and costs): Must be filed by July 13, 2011; 14

and 15
(i) Final Approval Hearing: August 26, 2011. 16
7. In the event that the class notice is not mailed and initially published 17
within the time specified herein, the subsequent dates contained herein will be 18
deferred for the number of additional days before such notice occurs without the

19 need for additional court approval. However, the Court must approve any change

20 of the date of the Final Approval Hearing.

21 III. CERTIFICATION OF CLASS AND STRIP SEARCH CLASS

22

8. The Court has previously certified Strip Search Classes under Fed. R.

23 Civ. P. 23(b)(3). This is a class action, certified under Fed. R. Civ. P. 23(b)(3) for

24 damages and monetary relief. Class Members have a right to opt out of the

25 settlement. The Court hereby reaffirms the class definition as set forth in the Class

26 Certification Order of April 1, 2009, and reiterated in the Settlement Agreement

27 {00868293.DOC} 5
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 6 of 12

1 attached as Exhibit A, including the class period of March 27, 2005, to October 1,

2 2007.

3

9. The Court reaffirms that all the criteria of Fed. R. Civ. P. 23(a) and

4 (b)(3) are met for all the classes being settled herein. Specifically, the Court finds

5 that all the criteria of Rule 23(a) are met, to wit, 1) that the class is so numerous
6 that joinder of all members individually is impracticable, 2) that there are
7 questions of law or fact common to the class, 3) that Plaintiffs’ claims are typical
8 of the claims of Class Members, and 4) that the persons representing the class
9 must be able fairly and adequately to protect the interests of all members of the
10 class. The Court further finds, pursuant to the provisions of Rule 23(b)(3) that 1) 11 the common factual and legal issues predominate over any such issues that affect 12 only individual Class Members, and 2) that a class action is superior to other 13 available methods for the fair and efficient adjudication of the controversy. The
Court further concludes that nothing in the parties’ settlement alters, but rather, if 14
anything, reinforces, the prior conclusions it reached regarding the desirability of 15
the class action mechanism as a means of resolving the claims in this case. 16
10. Pursuant to the terms of the settlement agreement, if the total number 17
of Opt-Outs exceeds 25, Defendants, in their sole discretion, may rescind their 18
acceptance of the Settlement Agreement. Defendants, in exercising this right of 19
rescission, shall provide the Administrator and Class Counsel with written notice 20
of rescission within 20 days after receipt of the Administrator’s report providing 21 the total number of Opt-Outs. In the event Defendants exercise their right of 22 rescission in accordance with this paragraph, any funds paid or deposited pursuant 23 to this Settlement Agreement shall be returned to Defendants within 10 days of the 24 exercise of the right to rescind, less any expenses, fees and costs incurred by the 25 Administrator.
26

27 {00868293.DOC} 6
28
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29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 7 of 12

1

11. For purposes of settlement, the parties have determined Class

2 Members from the County’s records and reached agreement regarding who

3 belongs in the class for purposes of this settlement. Only persons who have been

4 jointly identified by the parties through this process qualify as Class Members for

5 purposes of this settlement. The process has entailed reaching agreement on the

6 computer programming logic to be applied to the Defendants’ data to determine

7 who fits the class definitions, and who are qualifies as Class Members. Anyone

8 not so identified is not a member of the class. If a person is not so identified, he or

9 she has the right to pursue his or her own claim should s/he so choose. Such

10 persons are not considered opt-outs for they were never members of the classes

11 certified herein.

12

12. Defendants’ stipulations are for purposes of settlement only, and if

13 this Settlement is not finally approved or does not become effective for any

reason, Defendants retain their right to contend that persons agreed on as Class 14

Members for this settlement are not in fact Class Members. 15

IV. 16

NAMED PLAINTIFFS/CLASS REPRESENTATIVES

13. The class representatives are Marsial Lopez, Sandra Chavez, and 17
Theodore Medina.

18 V.

CLASS ADMINISTRATOR

19 14. The Court approves the retention of Gilardi & Co., LLC as Class

20 Administrator to administer the distribution of the Class and Settlement Notice,

21 and publication of the Class and Settlement Notice, and to distribute the proceeds

22 of the settlement to all eligible Class Members pursuant to the terms set forth in

23 the Settlement Agreement (Exhibit A) and the Final Order of Approval and

24 Settlement (Exhibit D) should the Court grant final approval. Gilardi was chosen

25 by defense counsel pursuant to agreement between the parties preliminary to the

26 finalization of the Settlement Agreement, under which Defendants would choose a

27 {00868293.DOC} 7
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 8 of 12

1 reputable, experienced Third Party Administrator who is in the business of class

2 administration. Plaintiffs agree that Gilardi meets this standard.

3

15. The Class Administrator’s responsibilities shall include mailing notice

4 to identified and possible Class Members, publishing notice, processing claims

5 and otherwise engaging in the activities needed to administer the class claims. The

6 specific duties of the Class Administrator between this Preliminary Approval

7 Order and the Final Approval Order are set forth in ¶¶ 31-48 of the Settlement

8 Agreement (Ex. A), the provisions of which are incorporated herein and approved.

9

16. The Class Administrator shall be compensated by Defendants for its

10 services, and any costs associated with them, in connection with notice and

11 administration and for the costs of giving mailed and published notice, pursuant to

12 such orders as the Court may enter from time to time, including this one. Such

13 payment shall be separate from the payment of Named Plaintiffs awards (see ¶

14 2(g) supra), attorneys’ fees and costs (see ¶ 2(f) supra), and payments to Class

15 Members who file claims that are accepted (see ¶¶ 2(a), (b), (c) and (d) supra).

VI. 16

SPECIAL MASTER

17. The Special Master referred to in the Settlement Agreement shall be 17

retired United States District Judge Raul A. Ramirez. 18
VII. CLASS COUNSEL 19
18. Barrett S. Litt and Paul J. Estuar are hereby confirmed as counsel for 20
the Class Representatives and the Class (“Class Counsel”).

21 19. Class Counsel are authorized to act on behalf of the Class with respect

22 to all acts or consents required by or which may be given pursuant to the

23 Settlement, and such other acts reasonably necessary to consummate the

24 Settlement.

25

20. At the Fairness Hearing, Class Counsel shall make an application for

26 approval of Class Fund Attorneys' Fees in the amount of $2,000,000 plus costs not

27 {00868293.DOC} 8
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 9 of 12

1 to exceed $65,000.

2 VIII. CLASS AND SETTLEMENT NOTICE

3

21. The parties shall provide the Class and Settlement Notice, and the

4 Claim Form, to the Class Administrator for distribution according to the schedule

5 set forth above. The Class Administrator shall additionally cause publication in the

6 form of a modified and shortened form of the Class Notice, in the publications set

7 forth in ¶ 35 of the Settlement Agreement (Ex. A) and on the schedule set forth

8 above.

9

22. Defendants will provide the name, address, social security number,

10 date of birth, driver's license information, and any other identifying information,

11 of Class Members to the Class Administrator in computerized form, to facilitate

12 locating them. Such information shall be confidential, and may not be disclosed to

13 anyone except counsel of record, the Class Administrator, and designated

14 representatives of Defendants. Should the Defendants discover at any time any

15 additional information containing relevant class information, they shall promptly

provide it to the Class Administrator. 16

23. Provision of the data specified in ¶ 22 is determined by the Court to be 17

necessary to identify and notify Class Members. Accordingly, the provision of 18

such data is the product of this court order, is absolutely privileged and cannot be 19
the basis of any lawsuit, for privacy breach or otherwise, under any federal or state 20
cause of action, in any federal or state court.

21 24. Defendants shall provide the Class Administrator the electronic data

22 specified in ¶ 22 within ten (10) business days of the signing of this Preliminary

23 Approval Order to the extent it has not already been so provided.

24

25. At least 10 days before the Fairness Hearing, the Class Administrator

25 shall serve and file a sworn statement attesting to compliance with the provisions

26 of this Order governing Class and Settlement Notice. This shall include a list of all

27 {00868293.DOC} 9
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 10 of 12

1 people who have opted out of the class.

2

26. The Court approves the Class and Settlement Notice so long as it is

3 materially similar to the proposed form attached as Exhibit C.

4

27. The Court approves the Claim Form so long as it is materially similar

5 to the proposed form attached as Exhibit B.

6

28. The Court finds that the notice required by the foregoing provisions of

7 this Order is the best notice practicable under the circumstances and shall

8 constitute due and sufficient notice of the Settlement and the Fairness Hearing to

9 all Class Members and other persons affected by and/or entitled to participate in

10 the settlement, in full compliance with the notice requirements of Rule 23 of the

11 Federal Rules of Civil Procedure and due process.

12 IX. THE FAIRNESS HEARING

13

29. A Fairness Hearing shall be held on August 26, 2011, to consider: (a)

14 the fairness, reasonableness, and adequacy of the Settlement; (b) whether the Final
15 Order of Approval and Settlement, attached as Exhibit D, should be entered in its
current or some modified form; and (c) the application by Class Counsel for 16
approval of the settlement of attorneys’ fees and costs (the “Fee Motion”). 17
30. The date and time of the Fairness Hearing shall be set forth in the 18
Class and Settlement Notice, but shall be subject to adjournment by the Court 19
without further notice to the Class Members other than that which may be posted 20
at the Court and on the Court’s web site, and on the Class Administrator’s website. 21
31. Any Class Member who objects to any aspect of the settlement, 22
including any aspect of the attorneys’ fee award, and has filed a timely objection 23
(i.e., by June 13, 2011), may appear at the Fairness Hearing and show cause why
24 the Settlement Agreement, the Fee Settlement, the Named Plaintiffs’ Distribution
25 or the schedule of recovery for the Class Members should not be approved as fair,

26 reasonable, and adequate, and why the Final Order of Approval and Settlement

27 {00868293.DOC} 10
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 11 of 12
1 should not be entered, except that no such Class Member may appear at the
2 Fairness Hearing unless the Class Member, no later than July 27, 2011, (a) has
3 filed with the Clerk of the Court a notice of such person’s intention to appear, a
4 statement that indicates the basis and grounds for such person’s objection, and all
5 documentation, papers, or briefs in support of such objection; and (b) by the same
6 date, has served upon all Counsel to the Parties (as listed in the Notice of Proposed
7 Settlement), either in person or by mail, copies of such notice of intention to
8 appear, statement of objections and all documentation, papers, or briefs that such 9 person files with the Court. The required documentation shall include information 10 demonstrating that the objector is a Class Member, including name, address, date 11 of arrest to the extent known, date of birth, Driver’s License number and Social 12 Security number. Final determination of whether any such objector is a class 13 member who has standing to object shall be determined solely from the 14 Defendants’ records, from which the list of Class Members has been compiled. In 15 the absence of the timely filing and timely service of the notice of intention to
appear and all other materials required by this paragraph, any objection shall be 16
deemed untimely and denied. 17
32. Pending final approval of the Settlement Agreement, no Class 18
Member shall, either directly, representatively, or in any other capacity, 19
commence, prosecute against any Defendant or participate in any action or 20
proceeding in any court or tribunal asserting any of the matters, claims, or causes 21
of action that are to be released by the Settlement Agreement upon final approval. 22
33. In the event of final approval of the Settlement Agreement, all Class 23
Members (except those who have opted out) shall be forever enjoined and barred 24 from asserting any of the matters, claims or causes of action released by the 25 Settlement Agreement, and all such Class Members shall be deemed to have 26 forever released any and all such matters, claims and causes of action as provided 27
{00868293.DOC}
11
28
AMENDED PRELIMINARY APPROVAL ORDER
29
30

Case 1:07-cv-00474-DLB Document 130 Filed 02/23/11 Page 12 of 12

1 for in the Settlement Agreement.

2 X. OTHER PROVISIONS

3

34. In the event the Settlement is not finally approved or is otherwise

4 terminated in accordance with the provisions of the Settlement Agreement, the

5 Settlement and all proceedings had in connection therewith shall be null and void, 6 except insofar as expressly provided to the contrary in the Settlement Agreement, 7 and without prejudice to the status quo ante rights of Plaintiffs, Defendants, and 8 Class Members, including, but not limited to, reinstatement of the appeal as set 9 forth in the Ninth Circuit’s Order granting conditional dismissal.

10

11 12 IT IS SO ORDERED.

13 Dated: February 23, 2011

14

DEAC_Signature-END:

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

15 3b142a

16

17

18

19

20

21

22

23

24

25

26

27 {00868293.DOC} 12
28
AMENDED PRELIMINARY APPROVAL ORDER
29

30

 
 Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 1 of 2604
lwqwm llnu

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 2 of 2604 Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 1 of 19

I Barrett S. Litt, SBN 45527 Paul J. Estuar, SBN 167764
2 E-Mail: pestuar@littlaw.com LITT, ESTUAR & KITSON, LLP
3 1055 Wilshire Boulevard, Suite 1880 Los Angeles, California 90017
4 Telephone: (213)386-3114 Facsimile: (213) 380-4585
5 Robert Mann, SBN 48293
6 Donald W. Cook, SBN 116666 E-Mail: doncook@earthlink,net
7 Attorneys at Law
3435 Wilshire Boulevard, Suite 2900 8 Los Angeles, California 90010
Telephone: (213) 252-9444 Facsimile: (213) 252-0091

10 Attorneys for Plaintiffs
PORTER SCOTT A PROFESSIONAL CORPORATION 12 Terence J. Cassidy, SBN 99180 Kristina M. Hall, SBN 196794 13 350 University Ave., Suite 200 14 Sacramento, California 95825 Telephone: (916) 929-1481 15 Facsimile: (916) 927-3706
Vol Attorneys for Def, COUNTY OF KERN

Mark L. Nations, Chief Deputy, SBN 101838 Office of the County Counsel 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH

LWI

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA

20 MARSIAL LOPEZ, SANDRA
21 CHAVEZ, THEODORE MEDINA, each individually, and as class representatives,

23

Plaintiffs,

24 vs.

Case No. CV-17-07-0474 DLB [Hon. Dennis L. Beck]
CLASS ACTION SETTLEMENT AGREEMENT PRESENTED TO THE COURT FOR PRELIMINARY APPROVAL

O924DOc1 CLASS ACTION SETTLEMENT AGREEMENT
In’

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 3 of 2604
Case 1:07.-cv-00474-DLB Document 1252 Filed 01/22/11 Page 2 of 19

1

21 MEDINA (individually and on behalf of the class defined herein (collectively 3 "Plaintiffs")), and Defendant Donny Youngblood (individually and as the Sheriff 4 for the County of Kern), Defendant County of Kern, and Defendant Mack Wimbish 5 (collectively "Defendants"), by and through their respective counsel, hereby submit
6

7

8

9

10

11

WHEREAS, Plaintiffs asserted they represented a class of persons who were

12 subjected to strip/visual body cavity searches ("strip/vcb searches") by the Kern

13 County Sheriffs Department ("KCSD") after having become entitled to release,

14 and a class of persons who were subjected to strip/vcb searches in groups without

15 any individual privacy; and

16

WHEREAS, Plaintiffs further alleged various violations of the Federal and

17 State Constitutions, of 42 U.S.C. § 11983, and violation of various California

18 I statutes; and

19

WHEREAS, the Dist.let Court certified aciass onAprili, 2009; granted

20 summary judgment on liability issues to the Plaintiff class, and denied qualified

21 immunity to the Defendants, on March 3 1, 2009; and

22

WHEREAS, the matter was on appeal in the Circuit Court of Appeal from

the District Court’s orders; however, the Ninth Circuit has now granted conditional
23
dismissal without prejudice of the appeal to allow the District Court to have
24
jurisdiction over settlement of this class action case; and
25
WHEREAS, the Parties to this Settlement Agreement agree that this action
26
has been extensively litigated for the past nearly four years and have engaged in
27
extensive settlement negotiations over four days before retired United States
28

CLASS ACTION SETTLEMENT AGREEMENT

EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 4 of 2604
Case 1:07-cv00474-DLB Document 1252 Filed 01/22/11 Page 3 of 19

District Judge Raul Ramirez, who acted as the mediator in the case; and

2

WHEREAS, Defendants deny that they have done anything wrong

3 whatsoever, deny all liability to the defined class and do not concede any infirmity

in the defenses that they have asserted or intend to assert in these proceedings, but

:. are cognizant of the time and expense of further litigation; and

6

WHEREAS, the Parties to this Settlement Agreement believe that settlement

7 is in the best interests of the parties and will avoid further lengthy and costly

8 litigation;

9

10

II. DEFINITIONS

11

1. "Administrator" means the Class Administrator Gilardi & Co., LLC,

12 as agreed upon by the parties and as to be appointed by the Court, to review and

13 determine the validity and amount of claims submitted by a Settlement Class

14 Member ("SCM") (as defined herein), according to the procedures set forth herein.

15

2. The "Bar Date" is the date by which any SCM who wishes to receive

16 payment pursuant to the Settlement Agreement must file his/her Proof of Claim and

Release Form (attached as Exhibit B), objections to this Settlement Agreement, or
17

request to be excluded from the class (opt-out). The Bar Date shall be calculated as
18
tieciose of business on the 120’, day after theiastay of mailing Class Notice (the
19
time frame for which mailing is up to two consecutive business days from
20
beginning to end, as is addressed in 134).
21

22

23

24

25
as Exhibit C, and such other summary notice to be published in accordance with the
26

27

28

6. The Settlement Agreement "Database" is the information provided in

CLASS ACTION SETTLEMENT AGREEMENT
it.

t4:IftJv

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 5 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 4 of 19

hard copy and/or electronic form by the Defendants to the Administrator and Class

2 Counsel no later than ten (10) days from the date the Court grants preliminary

3 approval of the terms of this Settlement Agreement (if it has not already occurred).

4 It may include, to the extent available, the name, address at time of booking, date of

II birth, Social Security Number, whether the inmate is a Post-Release Settlement Class Member 1 or 2, and any other computerized data relevant to determining

7 Class Membership or notifying Class. Members.

8

7. The "Effective Date" means the date upon which a judgment entered

9 by the Court approving the Settlement Agreement becomes final, The Judgment

10 will be deemed final only upon expiration of the time to appeal or, if a Notice of

11 Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari,

12 the final resolution of which upholds the settlement.

13

8. An "Opt-Out" is any Class Member who files a timely request for

14 exclusion pursuant to the terms of this Settlement Agreement, as specified in

Paragraph 43.
15

IL
16

Form required to be used to make a claim for pavment under this settlement. The
17

Proof of Claim form utilized will be materially similar to the copy of the proposed
18
Proof of Claim attached as Exhibit B
19
10. "Released Person" means the Defendants and their affiliates,
20
subsidiaries, predecessors, successors, and/or assigns, together with past, present
21
and future officials, employees, representatives, attorneys, and/or agents of the
22
County of Kern, the Kern County Sheriff’s Department, or any of them. "Released
23
Persons" also includes any and all insurance carriers, and/or their representatives

24
and attorneys, for the Released Persons.

25

26

27

28

CLASS ACTION SETTLEMENT AGREEMENT

EXHIBIT A

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Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 5 of 19

practice and/or custom to strip/vbc search all court returns, including those entitled 2 Ito release.

3

12. "Group Strip Search Class" means those persons who, from March 27,

4 2005, up to October 1, 2007, (a) were in KCSD custody; (b) were subjected to a

5 strip and/or visual body cavity search in a group with other inmates also being

6 strip/vbc searched, which search did not afford privacy from others; and (c) whose

7 strip searches were conducted pursuant to KCSD’s blanket policy, practice and/or

8 custom to regularly conduct strip/vbc searches in a group setting.

9

13. A "Class Member" means any member of either Class as defined

10 flai.i’ii

ii

14. A "Settlement Class Member" ("SCM") means any member of either

12 Class as defined above, including representatives, successors and assigns, who does

13 not file a valid and timely Request for Exclusion as provided for in ¶44 of this

14 Settlement Agreement.

15

15. "Strip Search" means a search conducted by Kern County Sheriff’s

16 personnel on a Kern County inmate in which the person was required to remove his

17 or her clothing, including underwear, in the presence of a corrections officer and/or

expose his or her breasts, genitals or body cavities for a visual inspection.
18

19

IIL DISCLAIMER- OF LIABILITY.

16. This Settlement Agreement is for settlement purposes only, and neither
20

the fact of, nor any provision contained in, this Settlement Agreement or its

21

exhibits, nor any action taken hereunder, shall constitute, be construed as, or be

22

admissible in evidence as, any admission of the validity of any claim or any fact

23
alleged by any Plaintiff or Class Member in either this action or in any other

24

pending or future action or of any wrongdoing, fault, violation of law, or liability of

25

26

27

28

CLASS ACTION SETTLEMENT AGREEMENT
IN

EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 7 of 2604 Case 1:07-cv-00474-DLB Document 125-2 Flied 01122/I1 Page 6 of 19

1 litigation, this dispute should be settled pursuant to the terms of this Settlement

2 Agreement, subject to the approval of the Court.

3

IV. TERMS AND EFFECT OF SETTLEMENT AGREEMENT

4

17. The Parties enter into this agreement solely for the purposes of this

S settlement and implementation of the settlement. If the settlement fails to be

6 approved or otherwise fails consummation, then this Settlement Agreement is hereby withdrawn.

8

18. A SCM who complies with the requirements set forth in this

Settlement Agreement will be paid specified sums determined by the settlement

10 distribution process set forth herein, which payment shall be in full satisfaction of all claims of that SCM.

12

19. The Settlement Agreement, as of the Effective Date, resolves in full all

13 claims against the Released Persons by all of the SCMs, including the named

14 Plaintiffs, involving violations of law or constitutional rights, including, without 15 limitation, their Fourth Amendment rights, their Fourteenth Amendment rights, or

16 any other federal, state or local law, regulation, duty, or obligation, or any other
17 legal theory, action or cause of action, which are based upon or could be based upon or arise from the facts alleged in the lawsuit, i.e., claiming damages for strip
18
..searches occurring whilein custody of the KernCounty Sheriffs Department that
19
fit within the definition of either the Post-Release or Group Strip Search Class,
20
When the Settlement Agreement. is final, as of the Effective Date, all SCMs,
21
including the named Plaintiffs, waive all rights to any and all claims relating to
22
Post-Release or Group Strip Searches by Released Parties under any theory or

cause of action whatsoever under California state law and federal law. This waiver

24 and release shall include a full release and waiver of unknown rights that may exist
25
as of the Effective Date, 26
20. As of the Effective Date, the SCMs, including the named Plaintiffs,
27
hereby waive any and all rights to pursue, initiate, prosecute, or commence any

28 action or proceeding before any court, administrative agency or other tribunal, or to

CLASS ACTION SETTLEMENT AGREEMENT
19

EXHIBIT A

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Case 1:07-cv-00474-DLB Document 125-2 Filed 01122/11 Page 7 of 19

file any complaint regarding acts or omissions by the Released Persons with respect 2 to any Strip Search by Defendants that occurred or may have occurred during the 3 Class Period that fit within the definition of either the Post-Release or Group Strip

4 Search Class; and further, as it relates to this waiver or Release, expressly waive the

5 provisions of California Civil Code § 1542, which provides that "a general release

6 does not extend to claims which the creditor does not know or suspect to exist in his

7 or her favor at the time of executing the release, which if known by him or her must

8

9

21. This Settlement Agreement, together with its exhibits, contains all the

10 terms and conditions agreed upon by the Parties hereto regarding the subject matter

11 of the instant proceeding, and no oral agreement entered into at any time nor any

12 written agreement entered into prior to the execution of this Settlement Agreement

13 shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and

14 conditions contained herein, except as expressly provided herein.

15

22. Each SCM shall be deemed to have submitted to the jurisdiction of the

OUT " I

17

23. This Settlement Agreement is subject to and conditioned on a Fairnel

Hearing conducted by the Court and the final approval of this Settlement
18

the issuance of the final order and ..judgment of dismissal by the
19

Court, providing the specified relief as set forth below, which relief shall be
20

pursuant to the terms and conditions of this Settlement Agreement and the Parties’
21
performance of their continuing rights and obligations hereunder, The Order and
22
Judgment shall be deemed final only on expiration of the time to appeal, or if a
23
Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of

24
certiorari or the expiration of the time to file such writ petition (see definition of

25
"Effective Date", supra). Such final Order and Judgment shall:

26
a. Dismiss with prejudice all claims in the action as to the Released Persons

27

28
injunctive relief, each side to bear their own costs and fees except as
.Joo8594Doc7 CLASS ACTION SETTLEMENT AGREEMENT
EXHIBIT A
ME

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 9 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 8 of 19

1

otherwise provided for in this Settlement Agreement;

2

b. Order that all SCMs are enjoined from asserting against any Released

3

Person, any and all claims that any SCM had, has or may have in the

4

future arising out of the facts alleged in the Complaint;

5

c. Release each Released Person from the claims that any SCM has, had or

6

may have in the future, against such Released Person arising out of the

7

facts alleged in the Complaint;

8

d. Determine that this Settlement Agreement is entered into in good faith, is

9

reasonable, fair and adequate, and in the best interest of the Class; and

10

e. Reserve the Court’s continuing and exclusive jurisdiction over the Parties

11

to this Settlement Agreement, including Defendants and SCMs, to

12

administer, supervise, construe and enforce the Settlement Agreement in

13

accordance with its terms for the mutual benefit of all Parties.

14

The Parties will take all necessary and appropriate steps to obtain preliminary

15 and final approvals of the Settlement Agreement, and dismissal of the action with

prejudice, all parties bearing their own fees and costs unless otherwise set forth in
10

this Settlement Agreement, If the Court gives final approval of this Settlement
17

Agreement, and if there is an appeal from such decision, the Defendants will not
18

oppose.Piarntiffs.’ efforts to defend the Settlement Agreement
19

V. RESOLUTION AND PAYMENT OF CLAIMS SETTLEMENT

20

PAYMENTS

21

22

23

24

25

26

27
complete payment of their claims in this case, subject to the approval of the Court.
28
Said payments to the class representatives shall be paid to the Lift, Estuar & Kitson 8 (00850924.DOC)
CLASS ACTION SETTLEMENT AGREEMENT
EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 10 of 2604
Case 1 :07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 9 of 19

1 LLP (hereafter "LEK") Client Trust Account at the same time that the Attorneys’

2 fees and costs are paid. Defendants or their insurers will make a single wire transfer

3 to the LEK Client Trust Account that will include the approved attorneys’ fees and

4 costs, and the funds awarded to the class representatives in a single transfer

s (hereafter the "Class Rep/Fee Transfer") within thirty (30) days of the Effective

6 Date, The Class Representatives and Class Counsel shall provide tax identification

7 information to Defendants within 30 days from the date of preliminary approval of

8 the Settlement Agreement.

26. The Parties agree that this is a claims-made settlement, requiring a

10 SCM to formally submit a valid and completed Proof of Claim Form in order to qualify and receive payment under this Settlement Agreement. In addition to and

12 separate from any other payments called for in this Agreement, the Released Parties 13 agree to pay a SCM who complies with the requirements set forth in this Settlement

14 Agreement according to a tier payment process as follows:

15

a. Post-Release Settlement Class Member 1: A Post-Release Settlement

1 10

Class Member 1 is a SCM who meets the definition of a Post-Release

Settlement Class member provided above and was subjected to a post-

18

release strip/vbc search for the first time during the Class Period.

Defendants

a..SCM.who quaiifiesasaPostR.e.1ease Class

Member! asum of $1500.
20
b. Post-Release Settlement Class Member 2: A Post-Release Settlement
21
Class Member 2 is a SCM who meets the definition of a Post-Release

Settlement Class member provided above and was subjected to a post-
23
release strip/vbc search for a second time during the Class Period,

24
Defendants agree to pay an SCM who qualifies as a Post-Release Class

25
Member 2 a sum of $750 (in addition to the amount such SCM receives as

26
a Post-Release Settlement Class Member 1). No additional payments will

27

be made to persons subjected to more than two such searches,

28

c. Group Strip Search Settlement Class Member: A Group Strip Search

CLASS ACTION SETTLEMENT AGREEMENT
22

EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 11 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22111 Page 10 of 19

1

Settlement Class Member is a SCM who meets the definition of a Group

2

Strip Settlement Class member provided above and was subjected to a

3

group strip/vbc search during the Class Period. Defendants agree to pay a

4

SCM who qualifies as a Post-Release Class Member 1 a sum of $200. No

5

additional sums shall be paid to a Group Strip Search Settlement Class

6

Member who was subjected to a post-release strip/vbc search more than

7

one time (i.e., each Group Strip Search Settlement Class Member shall be

8

paid $200 no matter how many times the individual was subjected to a

9

group strip search).

10

27. A SCM who is a Post-Release Class member is also entitled to

11 payment as a Group Strip Search Class member in addition to the payment s/he

12 receives as a Post-Release Class member.

13

28. Notwithstanding the amounts set forth above to be paid to each class

14 member, the parties have agreed to a maximum payout for each class, the amount
15 of which was derived from their joint estimate that claims are unlikely to exceed
approximately 28% of the class members (and, based on past experience, will likely
16
be meaningfully lower than that). Accordingly, the amounts to be paid Class
17
Members (not including class representatives) will be adjusted if the amount to be
18
awarded.eligible..Class Members in. either the Post-Release. or Group Strip Search
19
who make claims exceeds the total amount to be paid to that class. In that event, the
20
amount that members of that class receive will be adjusted on a pro-rated basis,
21
which would result in payment to individual Class Members of amounts lower than

those set forth above. The total amount paid to Post-Release Class Members is
23
capped at $2,335,830.00, and if claims exceed that, they will be adjusted on a pro-
24
rated basis so that the total payment to such Post-Release Class Members (first and
25
second time combined) will not exceed that total. Similarly, the amount paid to 26 Group Strip Search Class Members is capped at $2,016,000.00, and if claims
27
exceed that, they will be adjusted on a pro-rated basis so that the total payment to
28 such Group Strip Search Class Members will not exceed that total, 10 {00850924.DOC}
CLASS ACTION SETTLEMENT AGREEMENT
EXHIBIT A NN

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 12 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22111 Page 11 of 19

29. The Parties agree that a cypres fund is not necessary or warranted and

2 no cy pres fund will be created under the terms of this settlement.

3

CLASS COUNSEL FEES

4

30. In addition to and separate from any other payments called for in this

s Agreement, the Released Parties shall pay a one-time only lump sump payment of

6 $2,000,000, to be paid to the LEK Client Trust Account, as Class Counsel

7 attorneys’ fees, plus costs not to exceed $65,000. This payment represents a full and

8 final settlement of all past, present and future attorneys’ fees and all past, present

and future ordinary and extraordinary costs. It shall be paid as specified in ¶25,

10 supra.

11

CLASS ADMINISTRATION COSTS

12

31. In addition to and separate from any other payments called for in this

13 Agreement, the Released Parties are responsible for all Class Administration costs,

14 which shall be limited to the costs of Class Administration, costs of class notice and 15 costs for a Special Master as set forth in this Settlement Agreement. They shall
include any charges by Plaintiffs’ data expert, in the event and to the extent that

Defendants wish to utilize him. Defendants and Kern County’s insurers had the
17 1

unilateral right to decline entering into the Settlement Agreement if they

18

determined i.Llcu. UaSS J- wjiflhj,Lja1ujj

WUUIUAt.0 all aicu upun

Defendants and Kern County’s insurers did not exercise that right, and have agreed
20
to retain Gilardi to act as the Class Administrator, to whom Class Counsel have also
21
agreed. Accordingly, Defendants and their insurers, subject to court approval, have
22
contracted with Gilardi to provide class administration services, and they are solely
23
responsible for the costs of class administration, whatever they amount to.

32. The Administrator shall be responsible for providing Class Notice,

This shall comprise mailing Class Notice and a Claim Form by regular mail to all
26
Class Members’ last known address, The Administrator shall also use normal and 27 customary means to search for a Class Member’s last known address, including the 28 use of a postal database, when mail is returned, or whenever else it is appropriate in
O924,DOC}il CLASS ACTION SETTLEMENT AGREEMENT

EXHIBIT A
24

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 13 of 2604 Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 12 of 19

1 order to reasonably notify Class Members. In the event a Notice to a Class

2 Member’s last known address is returned as undeliverable, this will also include 3 making determinations of the location and current mailing address of Class 4 Members who are in state or federal prison, and re-sending notices to them at that 5 address. The Parties believe in good faith that obtaining the location and mailing 6 addresses of Class Members who may be in prison can be accomplished by Gilardi
and Co. and/or in cooperation with the California Department of Corrections and 8 Rehabilitation and the Federal Bureau of Prisons. The Parties will only apply for a
court order to access those records if necessary. Because those records are 10 confidential, the Parties request that the order for preliminary approval permit the
Parties and the claims administrator the right to access and review that data for use 12 in administering this settlement, and that they be provided immunity for any such 13 use.

14

33. The Class Notice shall describe the particulars of the case, provide the

class definition, provide information for claimants to contact the Administrator for

to a claim form, and other usual and customary information. The Class Notice will be materially similar to the proposed Class Notice attached to this Settlement
18 Agreement as Exhibit C.

19 1

Administrator shaiicomplthemaiiing ofCiass Notice within

20 two consecutive business days. The second day of such mailing is the first day of

the period for calculating the "bar date" as provided in ¶2. 21
35. The Administrator shall be responsible for publishing a summary Class zz
Notice as follows: 23
a. The Bakersfield Californian, The notice shall run on four separate days, a
14
week apart, over a four week period and shall be at least … page in size;

and

26 b. To the extent possible, the Kern County Cable TV Community Bulletin

27

Board, Provide a notice announcement for four days.

28

(OO 8

DOc)j

CLASS ACTION SETTLEMENT AGREEMENT

25

EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 14 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 13 of 19

I

CLASS ADMINISTRATION FOR PROOF OF CLAIM FORMS

2

36. The Administrator shalt be responsible for providing and receiving

3 Proof of Claim Forms. The Administrator shall determine eligibility for, and the

4 amount of, payment based on the Database or other available County of Kern

5 documents provided by Defendants to the Administrator.

6

37. A Proof of Claim Form shall be deemed timely submitted when

7 received by the Administrator, or postmarked, on or before the Bar Date. Facsimile

8 or electronic mail filings are not acceptable, will be deemed untimely filed and shall

9 not be considered by the Administrator,

10

38. If a Class Member submits a timely claim form that is deficient in

II some respect, the Administrator shall provide written notice by First Class Mail and

12 a 30-day time limit to provide a proper claim form, which notice shall inform the

13 Class Members of what s/he must do in order to submit a proper claim. Failure to 14 cure the deficiency within the 30 day time limit will bar any further rights for
consideration of eligibility.
15

1 Lu
Administrator and no payment shall be made.
17
40. The Administrator shall be responsible for garnishing from any
18
1 payme11t L0 SCM certain amounts that the SCvi owes Tor any liens or court orders
19
for restitution, child support, debts owed to the County of Kern and any statutory
20
liens, as set forth in ¶43, infra.
21
41. The Administrator shall make payments to SCMs who have filed
22
timely claims in accordance with this Settlement Agreement within a reasonable
23
time, with a goal of within 120 days after the Effective Date. If a check to a SCM is
24
not cashed within three months of its mailing, the Administrator shall hold the
25
funds for six additional months, during which time it shall make reasonable efforts
26
to contact the person to whom the un-cashed check was written to make
27
arranRements for its cashing or reissuance. Any such funds not cashed within one
28 year of its mailing shall revert to Defendants.
100850 924 .DOC I
CLASS ACTION SETTLEMENT AGREEMENT
EXHIBIT A We

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 15 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 14 of 19

1

42. The Administrator shall not make payment to any SCM until all claims

2 have been submitted to the Administrator pursuant to the terms of this Settlement

3 Agreement, all verified claims and payments have been calculated and all disputes

4 relating to claims have been resolved.

5

GARNISHMENT OF PAYMENT FOR LIENS

6

43. The Administrator shall deduct from any claim certain payment

7 amounts owed by a claim participant for any liens or court orders for restitution,

8 child support, debts to county and statutory liens. (Those SCMs filing claims who have liens under this paragraph are referred to as "Claimant with Liens.") The Class

10 Administrator will make payment to Kern County, the proper payee and/or their designee for those payment amounts deducted as set forth in this paragraph. The

12 Defendants shall prepare a list of the liens or orders applicable to each Class 13 Member with Liens (hereafter referred to collectively as "lien" or "liens"). That list 14 will be provided to the Administrator, which will be responsible to confirm the list

of such liens. The following procedures shall apply to the liens,

a. For Claimants with Liens, the payment disbursement letter accompanying

any claim check sent to them shall include a notice of that amount,
117 11
specifying the nature of the lien and the purported amount of the lien. The
18
Notice shall inciude.advising.the..claimant of hisor her right to contest the
I
lien and advise him or her of the procedures to do so. The Notice will
20
advise the Claimant with Liens that they have 30 days from the date of
21
receipt of such notice (based on the postmark of said notice) to file a
22
Notice Contesting Lien, and of the procedure to contest the lien. A form

Notice Contesting Lien shall be provided to each Claimant with Liens, to

24
be prepared by the Administrator subject to approval by the parties, which 25
will be used to contest the lien, The Notice Contesting Lien shall specify

26 the grounds for the objection, and copies shall be sent to Class Counsel,

27

Defendants , counsel and the Claims Administrator,

28

b. First, the SCM, Class Counsel and Defendants’ Counsel will attempt to

924DOc14

CLASS ACTION SETTLEMENT AGREEMENT

EXHIBIT A 27

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 16 of 2604 Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 15 of 19

1

resolve the objection by meet and confer conference. In the event the

2

objection cannot be resolved in that fashion, the Special Master agreed to

3

pursuant to ¶49 will be empowered to resolve any lien disputes under this

4

paragraph. To participate as a class member, any Claimant with Liens will

5

be deemed to have agreed that the Special Master’s determination shall be

6

binding and non-appealable, and that fact shall be included in the letter

7

sent to Claimants with Liens. Such a claimant may present his or her

8

contentions and supporting documents in writing to the Special Master.

9

10

recommendations from each side’s counsel before doing so.

11

c, Despite the amount of any lien, no Claimant with Liens shall have to pay

12

more than 50% of his/her class fund payment towards the lien, which

13

ensures that the claimant will receive finds for his/her claim regardless of

14

the amount of any lien.

15

d. The cost of the Special Master shall be borne by the Defendants as part of

the Class Administration costs.
I-

17

EXCLUSION FROM SETTLEMENT CLASSOPT OUTS

44. Any Class Member who wishes to be excluded from the Settlement
18 I

I Class must submit a reqestto be excluded from-the class, defined herein as "Opt-
19

Out". The request for exclusion must be delivered to the Administrator, or
20
postmarked, on or before the Bar Date or as the Court may otherwise direct.
21
45. Each member of the Settlement Class who chooses to Opt-Out from or
22
object to this settlement shall be deemed to have submitted to the jurisdiction of the
23

24

25

26

27

28

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 17 of 2604 Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 16 of 19

1

47. Any Class Member who exercises an Opt-Out, as set forth in ¶44, shall

2 not share in any monetary benefits provided by this Settlement Agreement.

3

48. The Administrator will report to Defendants’ counsel and Class

4 Counsel all Opt-Outs upon receipt, and will determine and report to counsel the
s total number of Opt-Outs no later than 10 days after the Bar Date. If the total

6 number of Opt-Outs exceeds 25, Defendants, in their sole discretion, may rescind

their acceptance of the Settlement Agreement. Defendants, in exercising this right

8 of rescission, shall provide the Administrator and Class Counsel with written notice

of rescission within 10 days after receipt of the Administrator’s report providing the

10 total number of Opt-Outs. In the event Defendants exercise their right of rescission in accordance with this paragraph, any funds paid or deposited pursuant to this

12 Settlement Agreement shall be returned to Defendants within 10 days of the 13 exercise of the right to rescind, less any expenses, fees and costs incurred by the 14 Administrator. Such Administrator costs shall be borne exclusively by Defendants
and shall not be chargeable as a collectible cost even should Defendants ultimately

prevail in this Action.
1 .
I U

17

DISPUTE RESOLUTION

49. The Parties agree to the appointment of the Honorable Raul Ramirez
18

I ’(Ret.) as S.pecialMaster pursuant to Federal Rules of Civil Procedure Rule 53 to

resolve disputes that arise from implementation of the Settlement Agreement as set

forth herein,
21
INTEGRATION
22
50. This Settlement Agreement supersedes all prior communications

regarding the matters contained herein between the signatories hereto or their 24
representatives. This Settlement Agreement is an integrated agreement and contains 2 the entire agreement regarding the matters herein between the signatories hereto 26 and no representations, warranties or promises have been made or relied on by any
27
party hereto other than as set forth herein. This Settlement Agreement was drafted

28 by counsel for the parties hereto, and there shall be no presumption or construction
tonR509-)4r)nq CLASS ACTION SETTLEMENT AGREEMENT
EXHIBIT A 29

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 18 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 17 of 19

1 against any party.

2

1I I 1I *}%I I 3,’I 9 k[WI ii IM SJ 9$) LS1tIA’LI I

3

51. Before this settlement agreement becomes final and binding on the

4 parties, the Court shall hold a Fairness Hearing to determine whether to enter the

5 Final Order of Approval. A proposed Final Order of Approval shall be submitted to

6 the Court substantially in the form set forth in Exhibit D.

7

NO ADMISSION OR WAIVER

8
9 agreements contained in this Settlement Agreement have been agreed to solely for
10 the purpose of finally compromising and resolving all questions, disputes and issues
11 between them relating to the litigation. This Settlement Agreement and any
12 proceedings taken pursuant hereto shall not in any event be construed as,
13 interpreted as, or deemed to be evidence of an admission or concession by either
14 party for any purpose, or deemed to constitute a waiver of any legal position or any 15 defenses or other rights which either of the parties might otherwise assert in any
context. Neither this Settlement Agreement nor any of its provisions nor any other
[0
documents related hereto nor any negotiations, statements or testimony taken in
1
1/
connection herewith may be offered or received in evidence in, or used for any
18
Other purpose, or in any suit, action or legal proceeding which either ..of them may
19
now have or in the future have with any other person, as an admission or
20
concession of liability or wrongdoing or as any admission or concession on the part
21
of either party, except in connection with any action or legal proceeding to enforce
22
this Settlement Agreement. The Parties have reached this Settlement Agreement on
23
a commercial basis .through arms-length negotiations and to avoid the costs and
24
delays of further disputes, litigation and negotiations among them. This Settlement
25
Agreement has been entered into without any concession of liability or non-liability 26 whatsoever and has no precedential or evidentiary value whatsoever. This 27 Settlement Agreement does not and is not intended to create any rights with respect 28 to any third parties, except as otherwise provided herein.

CLASS ACTION SETTLEMENT AGREEMENT

RN

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 19 of 2604
Case 1:07-cv-00474-DLB Document 125-2 Filed 01/22/11 Page 18 of 19

1 2 3 4 5
6 DATED: January 21, 2011
7 8 9 10 11 12 13 14 15

By:
Mark L. Nations, Chief Deputy Office of the County Counsel COUNTY OF KERN
By: /s/ Barrett S. Litt Barrett S. Litt LITT, ESTUAR & KITSON Attorneys for Plaintiffs

I
1’7

18

19

20

21

22

23

24

25

26

27

28

(OO85O9208 CLASS ACTION SETTLEMENT AGREEMENT
KE

EXHIBIT A

Case 1:07-cv-00474-DLB Document 12390-1 Filed 02/223/11 Page 20 of 2604
Case 1 :07-cv-00474-DLB Document 1 25-2 FUed 01/22/11 Page 19 of 19

1

LIST OF EXHIBITS TO SETTLEMENT AGREEMENT

2

3

Exhibit B

4

Exhibit C

5

Exhibit D

6

Proof of Claim and Release Form Class Notice Final Order of Approval and Settlement

7

8

9

10

I12
13 14 15 16
I 7 I’
18 191 20 21 22 23 24 25 26 27 28
19 10ORSOWMnori
CLASS ACTION SETTLEMENT AGREEMENT
I4HI81WA

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Proof of Cl Gas ?,i91Pgt1oP2k0 Btpent 125-3 Filed 01/22/11 Page 1 of 2
CONFIDENTIAL SETTLEMENT COMMUNICATION

WfIXW N (]tSJ WMU I] t1I

If you receive more than one Claim Form, sign and file all Claim Forms you receive.

I I I I III! III I 111111 Claim #: SBO-123456-7
First Last (pre-print) do (pre-print) Address (pre-print City, ST Zip (pre-print)
Please provide the following personal identification information:
Email address:

Name/Address Changes (if any). Please enter below:

First Name

Last Name

Address

City

State

Zip

Area Code

Daytime Telephone Number

Area Code

Evening Telephone Number

Social Security Number: -

-

- - * * Date of Birth: [ML, /[D] /Y]_______

Alias(es):

I understand my entitlement will be determined exclusively by records of the County of Kern.
I wish to make a claim against Kern County because, between March 27, 2005, and October 1, 2007, while in the custody of Kern County Jail, I was subjected to a strip/visual body cavity search in a group with other inmates, and/or strip/visual body cavity searched after going to court and becoming entitled to release from custody as a result. I have reviewed and understand the class notice. To the best of my knowledge, I qualify as a class member. I understand that any liens the County may have against me will be taken from my recovery, up to 50% of the total, l understand that, by filing a Claim Form, I agree to allow the Claims Administrator access to my records regarding my arrest and any potential lien. I understand that, by participating as a class member, I waive all rights I may have, known or unknown, regarding Kern County’s strip searches of me.

You must mail this Claim Form with a postmark, or it must be received, NO LATER THAN in order to receive money.

If your Claim Form is not mailed with a postmark, or received by, no later than

2011, you will not be

entitled to receive money, but you will be bound by the settlement anyway. DO NOT DELAY.

The information given in this Claim Form is private, and will be held in strictest confidence, except as needed by

the Parties and Settlement Administrator, If you have any questions about this lawsuit, write to us at Lopez v. County

of Kern Settlement Administrator,

or contact us by e-mail at

or visit our web

site at www.

.com,

By signing this form below, I am confirming that the above information is correct to the best of my recollection and that I)
I am the person identified above and I am over the age of 18; 2) 1 qualify as a member of the class as defined above, and agree to the terms of the settlement; 3)1 have not already received money or compensation for any of the claims involved in this case; 4) I will abide by, and be limited to, the formula for damages approved by the Court; and 5) 1 will keep the Settlement Administrator informed of my whereabouts at all times.

EXHIBIT B 33

CCaasese11:0:077-c-vc-v0-00447744-D-DLLBB DDoocucummeennt t113209-1-2 FFileiledd0022/2/232/1/11 PPaaggee23 of 364

Proof of CI

p ok,o 5rpeflt 125-3 Filed 01/22/11 Page 2 of 2

CONFIDENTIAL SETTLEMENT COMMUNICATION

I declare under penally of perjury that the information given above is true and correct

Date: (mm/dd/yyyy)

Signature:

If you are signing as a Parent or Guardian please print your first and last names on the lines below:

Print Parent/Guardian First Name: -

Last Name: -

2
EXHIBIT B
34

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--13 FFilieledd0022/2/232/1/111 PPaaggee214ooff1614
V

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--13 FFilieledd0022/2/232/1/111 PPaaggee225ooff1614 Case 1:07-cv-00474-DLB Document 125-4 Filed 01/22/11 Page 1 of 10

Class and Settlement Notice

NOTICE OF CLASS ACTION, PROPOSED CLASS SETTLEMENT AND HEARING
RE: Lopez, et aL v. County of Kern, et at,, United States District Court, Eastern District of California, Case No, CV-F-07-0474 DLB.

This Class and Settlement Notice is available in Spanish. Call toll-

free________ or visit the following website:

com, (in

Spanish)

There is currently pending a class action lawsuit in the United States

District Court En L

c as "’’-- ’.ii ’, a 1tL’u" IIU"a. i"ci-i-’u_u1 ,i-.t...,4u- i,Sd,-, Ciuuu In-Lc as

a class action, and there is a proposed Settlement. If the proposed Settlement

receives final court approval, CLASS MEMBERS are eligible to receive

money.

Kern County records show that you may be a CLASS MEMBER. Therefore, you may be eligible to receive MONEY. To receive any money in this pending Settlement, you must fill out and mail a Claim Form.

Your Claim Form

must be postmarked or received by the Administrator

no later than

2011.

If you wish to "opt out," or be excluded from the Settlement, your opt-out letter must be postmarked or received by the Administrator by
,2011.

I
EXHIBIT C ’lii

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deadline, you will nonetheless be bound by the Settlement, but you will not receive any money.
If You Wish to Claim Money, Fill Out and Mail the Enclosed Claim Form Today. If you receive more than one Claim Form, sign and file all Claim Forms you
receive,
2 EXHIBIT C
Nne

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Case 1:07-cv-00474-DLB Document 125-4 Filed 01/22/11 Page 3 of 10
Below are questions and answers designed to explain to you information about this lawsuit, including how to proceed to file a claim or otherwise participate in the Settlement process.
1. What Is The Class Action Lawsuit About? This lawsuit involves the former policy and/or practice of the Kern County Jail of a) strip searching inmates (i.e., requiring inmates to remove all clothing and submit to a visual inspection, usually including a visual inspection of their breasts, genitals and rectum) in a group with other inmates, and b) strip searching inmates who became entitled to release from custody after going to court. The Class Period covers March 27, 2005, through October 1, 2007 (when the policy was stopped).
2. Who Is A Member Of The Class? You are a member of the class if you meet the definition of either of the classes (summarized above and set forth fully in the judge’s orders), and your claim can be verified from the records of the Kern County Sheriff’s Department, Kern County must have a record of your being in custody so that officials can identify you individually by true name and other methods of identification, and ascertain that you qualify as someone who is a member of the class. Such records are the sole and final way it is determined who is a member of the class.
You have received this Notice either because (a) County of Kern records indicate that you may be in the class, or (b) you contacted the Class Administrator in the belief that you are in the class. Whether or not you qualify as a class member will be based upon records of the County of Kern. If those records do not contain your name and show you to be within the definition of the class, you will not qualify.
3. What Is The Purpose Of This Notice? You have a right to know about a proposed Settlement of this class action lawsuit and about all of your options before the Court decides whether to give final approval to the Settlement. Your rights may be affected by this lawsuit. This information is being sent to every known person who is or may be a member of the class based upon the last known address available from the records of the Kern County Sheriff’s Department, and otherwise publicized to reach class members.
This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are obtained, who is eligible and how to file a claim.
The Court in charge of the case is the United States District Court for the Eastern District of California, located in Fresno, California. The case is known as Lopez v, Youngblood et al., Case No. CV-F-07-0474 DLB. The people who brought the case are called Plaintiffs, and the people they sued are called Defendants.
EXHIBIT C

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4. Why Is This A Class Action?
In a class action, one or more persons, called the Class Representative(s), sue on behalf of a group of people who have similar claims - the Class Members. One court then resolves the issues for all Class Members, except for those who exclude themselves from the class.
5. Why Is There A Settlement?
This case has been going on for a very long time. Instead of continuing with the case, both sides have agreed to a Settlement. That way, both sides are able to avoid the risks and costs of a trial or appeal, the case can be resolved immediately, and the benefits of the Settlement can be made immediately available to the Class Members. The Class Representatives and their attorneys think that the proposed Settlement is fair to the Class Members and the parties in the case, and think that the terms of the Settlement are a fair, reasonable and adequate resolution of this matter. Because this is a settlement, the Defendants do not formally admit liability, but they nonetheless agree to pay money to class members.
6. Are There Lawyers Representing You?
The Court has approved lawyers (called "Class Counsel") to collectively represent you. You will not be asked to pay your own personal money for the services of these attorneys and their associates and staff in litigating this case and negotiating this Settlement. Instead, the lawyers will seek payment from the defendants, subject to final approval of the Court, as is described further below. Only Class Counsel may act on behalf of the class, However, that does not prevent you from hiring your own lawyer to advise you personally about your rights, options or obligations as a Class Member in this lawsuit. If you want to be represented by your own lawyer, you may hire one at your own expense.
7. What Does The Settlement Provide 9
The Settlement provides for the following payments to class members in three tiers:
a. A person who was subjected for the first time during the class period (between March 27, 2005, and October 1, 2007) to a Kern County strip search after a Court ordered him or her to be released from all pending charges, and the person was in fact entitled to immediate release based on that order, will receive a payment of $1500 (subject to certain possible adjustments described below in ¶ 8).
b. A person who was subjected for a second or more time during the class period (between March 27, 2005, and October 1, 2007) to a Kern County strip search after a Court ordered him or her to be released from all pending charges, and the person was in fact entitled to immediate release based on that order, will receive a payment of $750 in addition to the $1500 for the first strip search
ri
EXHIBIT C "43

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Case 1:07-cv-00474-DLB Document 125-4 Filed 01122111 Page 5 of 10
(again subject to certain possible adjustments described below in ¶ 8). If someone was strip searched after being ordered released more than two times during the Class Period, s/he will not receive additional money for those searches.
c. A person who was strip searched in a group while in Kern County custody during the Class Period will receive a one time only payment (regardless of the number of times the person was strip searched in a group) of $200 (subject to certain possible adjustments described below in ¶ 8).
In addition, the Agreement provides for the following other payments:
a) Separate payment by Defendants of settlement administration fees.
b) Separate payment by Defendants of a total of $90,000 to the three individuals ($30,000 each) who were Named Plaintiff and Class Representatives, and whose individual damages could be assessed prior to Settlement. These plaintiffs will receive more under the Settlement than other Class Members because of the role that they played in the litigation, and because of individualized damages determinations made in their cases. The Court will finally approve whether to allow this amount or a different (but not higher) amount.
C) An award of attorneys’ fees, to be separately paid by the Defendants, in the amount of $2,000,000, subject to the final approval of the Court, and costs of litigation not to exceed $65,000.
As a result of this case, Kern County Jail no longer engages in routine strip searches in groups or of those who are ordered by a court to be released, and are entitled to immediate release.
8. What Are The Possible Adjustments To The Amounts Class
Representatives Receive?
As indicated above, class members are to receive a fixed amount of money, which may be adjusted under certain circumstances. An adjustment would only occur if the number of claims substantially exceeds what the parties expect based on past experience in cases of this kind. Specifically, the total amount paid to Post-Release Class Members (first and second time combined) is capped at approximately $2,335,000, and amount paid to Group Strip Search Class Members is capped at approximately $2,015,000 (each rounded to the nearest $5000). If claims exceed those amounts for either class, they will be adjusted on a pro-rated basis so that the total payment for that class will not exceed its maximum.
The reason for this maximum is that the defendants bargained that the settlement would not cost them more than a certain amount, so this adjustment assures them that the total cost of the settlement will not exceed a certain amount.
EXHIBIT C
11

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The parties expect that the amount allocated for each class will be sufficient to pay each class member the amounts set forth previously. However, it is possible that the parties are wrong, and that the amounts to be paid to class members will have to be adjusted. Thus, it is important that you understand that this is possible.
Even if 100% of class members filed claims, and all were paid, post-release strip search class members would receive $420, and group strip search class members would receive $56.

The Class Administrator shall deduct from any claim payment the amount owed by a claim participant for liens or court orders for restitution, child support, debts owed to the County of Kern or any statutory liens. By filing a Claim Form, you agree to allow the Class Administrator access to your records regarding child support or potential statutory liens. However, no more than 50% of the amount due to a claimant may be deducted to pay such restitution, debts or liens, so all qualifying claimants will receive some money even if such deductions occur. A Class Member from whom lien deductions will be taken will have the right to present evidence to a retired judge that s/he does not owe the money on which the lien is based; the retired judge’s decision on that issue will be final.

10. Will I Receive Anything From The Settlement?
If it is verified that you are a Class Member, and you file an approved claim within the time set by the Court, you will be entitled to receive compensation in accordance with the schedule described above.

IL.

Do I Do To Get Money?

If you wish to receive money from the Settlement, you must complete and submit

the accompanying Claim Form. Read the instructions on the Claim Form carefully. All

Claim Forms must be completed -. ’And .stmarked (or received by the

Administrator) no later than

_, 2011, but it is recommended that you complete

and mail your Claim Form as soon as possible. If you do not timely and properly

submit your Claim Form, you will not receive any money from the Settlement. if

you need a copy of a Claim Form, please call

(toll free), or write to the

Lopez v. Youngblood Settlement Administrator,

, CA

or download the Form from the Internet at

12. Can I Exclude Myself From The Settlement?
If you do not want to be a member of the class, then you must take steps to get out of the class. This is called "excluding yourself" from, and sometimes is referred to as "opting out" of, the class.

EXHIBIT C 40

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Case 1:07-cv-00474-DLB Document 125-4 Filed 01/22/11 Page 7 of 10
13. What Do I Do To Exclude Myself From The Lawsuit?
To exclude yourself, you must send a letter by First-Class mail clearly stating that you want to be excluded from Lopez v. Youngblood, et al. Be sure to include your name, address, telephone number and signature. The name and address of your attorney is not sufficient. You must mail your Exclusion Request, postmarked no later than
,2011 to:
Lopez v, Youngblood, et al. Settlement Administrator
____,CA
You cannot exclude yourself on the phone or by email. If you are excluded, you will not be entitled to get any money from the Settlement, and you cannot object to the Settlement. Nor will you be legally bound by anything that happens in this lawsuit.
Unless you exclude yourself from the class, you remain in the class and give up all of your rights against the Defendants except those available to you under this Settlement. That means that, if you don’t exclude yourself and you also don’t file a claim, you will receive no money but still lose your rights against the Defendants. So be sure to file your claim.
14. What Is The Release Of Claims?
If you are a class member and have not excluded yourself from the class as described above, you are waiving all your rights to all claims during the class period related to strip searches by the Kern County Sheriffs Department falling within the Court’s definition of the Classes, even those you are not aware of at present. This waiver includes 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 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." By not excluding yourself, you will be giving up unsuspected claims in these areas related to strip searches by the Kern County Sheriffs Department. However, you will not be giving up any other claim(s) that you may have against Kern County for conduct not covered by this Settlement (for example, a false arrest or battery by a police officer).
15. If! Do Not Like The Settlement Or Object To The Attorneys’ Fees, How Do I Tell The Court?
If you are and remain a Class Member, you can object to the Settlement if you do not like any part of it, or you may object to the request for Attorneys’ Fees. You must give the reason why you think that the Court should not approve the Settlement or the requested Attorneys’ Fees. A mere statement that "I object" will not be sufficient. Do not contact the Court orally to object. Rather, you must send a written statement with the case name and number (Lopez v. Youngblood, et al., Case No. CV-F-07-0474 DLB) at the top of the page. In addition, provide your name, your address (just giving the address of an attorney who represents you is not sufficient), your telephone number, the date of arrest to the extent known, your signature and the reason why you object. If you are
EXHIBIT C
ME

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represented by a lawyer, you should also give the name, address and telephone number of

that lawyer. You must mail your objections and any supporting papers by First-

Class mail, postmarked no later than

2011, to the Court and counsel as

follows:

U.S. District Court 2500 Tulare Street Fresno, CA 93721 Phone: (559) 499-5600

Barrett S. Litt Attn: Julia White Litt, Estuar & Kitson 1055 Wilshire Blvd. #1880 Los Angeles, CA. 90017 213-386-3114

Terence J Cassidy Porter Scott 350 University Ave 9200 P 0 Box 255428 Sacramento, CA 95865 (916) 929-1481

A full set of the settlement documents, including the Proposed Final Order of Approval and Settlement and the Motion For Award of Attorneys’ Fees and Costs either is available (or will be if the motion for attorneys’ fees has not yet been filed) on the case website,

Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the class. If you object and the Court rejects your objection, you remain a member of the class and will be hound by any outcome of the case. Excluding yourself is telling the Court that you do not want to be part of the class. If you exclude yourself, you have no basis to object because the case no longer affects you. If you do object, you should also file a claim form.
17. When And Where Will The Court Decide Whether To Approve The Settlement And Attorneys’ Fees?
The Court has scheduled the Fairness Hearing for 10:00 A.M. on 2011, in the United States District Courthouse for the Eastern District of California, 2500 Tulare Street, Fresno, CA 93721, in the courtroom of Magistrate Judge Dennis Beck, Courtroom No. 9. At this Hearing, Judge Beck will consider whether the Settlement is fair, reasonable and adequate, and will determine the amount of Attorneys’ Fees and costs to be awarded. If there are any objections, the Court will consider and rule on them. We do not know how long this process will take. We do not know if the Hearing will be continued. There will not be a new notice if it is. You may speak at the Hearing with the permission of the Court, but only if you have submitted your comments or objections as described above.
18. Do I Have To Come To The Hearing?
No. You may, but need not, attend the Hearing. Class Counsel will answer any questions the Court may have. However, you may come if you choose, at your own expense. If you sent a written objection, you do not have to come to Court to talk about

Case 1:07-cv-00474-DLB Document 12390-31 Filed 02/223/11 Page 1303 of 1614
Case 1:07-cv-00474-DLB Document 125-4 Filed 01/22/11 Page 9 of 10
it. As long as you properly submitted your written objection, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.
19. May I Speak At The Hearing? You will not be heard unless you have submitted your comments or objections. You cannot speak at the Hearing if you exclude yourself. If you have submitted an objection, the Court will decide whether or not to hear from you verbally as well.
20. What Happens If I Do Nothing At All? If you do nothing, your rights will be affected. You will be bound by the terms of the Settlement and you will be agreeing to a release of the claims that are contained in the Settlement. However, because you did not file a claim, you will not be entitled to any money from the Settlement,
21. When Will I Receive Money From the Settlement? No money will be paid until after the Settlement is approved and all possibilities of appeal are completed. After that, it will likely take two to three months, and quite possibly more, to process all the claims, calculate the amount due to each Class Member and receive the money to send to the Class Members.
If you file a claim and do not receive money within eight months after 2011, which is the last day to mail or file a claim, check the website for this
case about when mailings are expected, or contact the Class Administrator by either calling _________ or writing to:
Lopez v. Youngblood Settlement Administrator
-_, _C ,CA A We strongly recommend that you keep a copy of your Claim Form. You may want to send the Form in by certified mail so it can be verified, but you are not required to do so.
Remember that it is possible that the Court will approve the settlement, but that there could be an appeal that would substantially delay any payment if it were successful.
22. What Happens If There Is Not A Final Settlement?
Under certain circumstances, it is possible the settlement might not go through (for example, if there are too many people who decide not to participate or if the court for some reason does not approve the settlement). In that situation, the case would go forward and go to trial.
23, Are There More Details About The Settlement? This Notice merely summarizes the proposed Settlement. You may go to the website titled ____________ to see the complete Settlement documents in the case, or a copy of the
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Motion for Award of Attorneys’ Fees and Costs when it is filed. In the event that any description in this Notice of the terms in the Settlement documents conflict with the actual terms of the Settlement documents, the terms of the Settlement documents control. You may also contact Class Counsel’s paralegal on this case, Julia White, at 1055 Wilshire Blvd. 41880, Los Angeles, CA. 90017; ph: 213-386-3114, extension 211.
10

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I Barrett S. Litt, SBN 45527 Paul J. Estuar, SBN 167764

2 E-Mail: pestuar@littlaw.com LITT, ESTUAR & KITSON, LLP
3 1055 Wilshire Boulevard, Suite 1 880 Los Angeles, California 90017
4 Telephone: (213) 386-3114 Facsimile: (213) 380-4585

5 Robert Mann, SBN 48293

6 Donald W. Cook, SBN 116666 E-Mail: doncook@earthlinknet

7 Attorneys at Law 3435 Wilshire Boulevard, Suite 2900

8

Los Angeles, California 90010 Telephone: (213) 252-9444

9 Facsimile: (213) 252-0091

10 Attorneys for Plaintiffs

11 PORTER SCOTT A PROFESSIONAL CORPORATION
12 Terence J. Cassidy, SBN 99180
Kristina M. Hall, SBN 196794 13 350 University Avenue, Suite 200
14 Sacramento, California 95825 Telephone: (916) 929-1481
15 Facsimile: (916) 927-3706

I0
17 18 19 20 21 22 23 24

25
26 27 28

Mark L. Nations, Chief Deputy, SBN 101838 Office of the County Counsel 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--14 FFilieledd0022/2/232/1/111 PPaaggee337ooff1684 se 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 2 of 17

1 II

M (thIIIW I 1IJi

2

This Lawsuit having come before this Court for a hearing, pursuant to this

3 Court’s Order Preliminarily Approving Proposed Settlement Between Plaintiffs and

4 Defendant, dated _______, 2011 (the "Preliminary Approval Order") to consider

5 and determine the matters set forth in the Preliminary Approval Order; and due

6 notice of said hearing having been published and given; and all persons that made

7 timely objections to the proposed settlement set forth in the Settlement Agreement

8 made and entered into on _____, 2011, and described in the Class and Settlement

9 Notice, having been given an opportunity to present such objections to the Court;

10 and the Court having considered the matter, including all papers filed in connection

11 therewith, and the oral presentations of counsel at said hearing; and good cause 12 appearing,

13

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

14

1. Each term and phrase used in this Final Order of Approval of

15 Settlement shall have the same definition and meaning as in the Settlement

h1Z) I Agreement, as follows:

17

a. "Administrator" means the Class Administrator Gilardi & Co., LLC, as

18

agreed upon by the parties and as to be appointed by the Court, to review

19

and determine the validity and amount of 4laim ..submitted by a

20

Settlement Class Member ("SCM"), as defined herein, according to the

21

procedures set forth herein.

22

b. The "Bar Date" is the date by which any SCM who wishes to receive

23

payment pursuant to the Settlement Agreement must file his/her Proof of

24

Claim and Release Form (attached as Exhibit B), objections to this

25

Settlement Agreement, or request to be excluded from the class (opt-

26

out). The Bar Date shall be calculated as the close of business on the

27

120th day after the last day of mailing Class Notice (the time frame for

28
1460.DOC}

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1

which mailing is up to two consecutive business days from beginning to

2

end, as is addressed in ¶33).

3

c. "Class Counsel" means Barrett S. Lift and Paul J. Estuar, of Litt, Estuar

41

& Kitson ("LEK"), 1055 Wilshire Blvd., #1880, Los Angeles, CA.

5

90017.

6

d. The "Class Notice" means the notice to the Class regarding settlement,

7

to be sent to Class Members in a form substantially similar to that

8

attached hereto as Exhibit C, and such other summary notice to be

9

published in accordance with the terms of this Settlement Agreement.

10

e. The "Class Period" is March 27, 2005, to October 1, 2007.

11

f. The Settlement Agreement "Database" is the information provided in

12

hard copy and/or electronic form by the Defendants to the Administrator

13

and Class Counsel no later than ten (10) business days from the date the

14

Court grants preliminary approval of the terms of this Settlement

15

Agreement (if it has not already occurred). It includes, to the extent

16

available, the name, address at time of booking, date of birth, Social

Security Number, date(s) of movement to and from court or other places
1-

18

that would subject inmates to searches in groups, dates of court

19

appearances as a result of which an inmate became entitled to release

20

from custody and the date of release from custody of such inmates, and

21

any other computerized data relevant to determining Class Membership

22

or notifying Class Members,

23

g. The "Effective Date" means the date upon which a judgment entered by

24

the Court approving the Settlement Agreement becomes final. The

25

Judgment will be deemed final only upon expiration of the time to

26

appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals

27

and petitions for writs of certiorari, the final resolution of which upholds

28

(0085 1460.DOC)

3

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the settlement.

h. An "Opt-Out" is any Class Member who files a timely request for

exclusion pursuant to the terms of this Settlement Agreement. i. The "Proof of Claim Form" means the Proof of Claim and Release Form

required to be used to make a claim for payment under this settlement. A

copy of the proposed Proof of Claim is attached as Exhibit B.

j. "Released Person" means the Defendants and their affiliates,

8

subsidiaries, predecessors, successors, and/or assigns, together with past,

9

present and future officials, employees, representatives, attorneys, and/or

10

agents of the County of Kern, the Kern County Sheriffs Department, or

11

any of them. "Released Persons" also includes any and all insurance

12

carriers, and/or their representatives and attorneys, for the Released

13

Persons.

14

k. "Post-Release Class" means those persons who, from March 27, 2005,

15

up to October 1, 2007, (a) were in KCSD custody; (b) were taken from

16

jail to court; (c) became entitled to release after going to court; and (d)

17

were strip and/or visual body cavity searched before release pursuant to

18

KCSD’s blanket policy, practice and/or custom to strip/vbc search all

court returns, including those entitled to release,

20

I. "Group Strip Search Class" means those persons who, from March 27,

21

2005, up to October 1, 2007, (a) were in KCSD custody; (b) were

22

subjected to a strip and/or visual body cavity search in a group with

23

other inmates also being strip/vbc searched, which search did not afford

24

privacy from others; and (c) whose strip searches were conducted

pursuant to KCSD’s blanket policy, practice and/or custom to regularly

26

conduct strip/vbc searches in a group setting.

27

m. A "Class Member" means any member of either Class as defined above.

28

{00851460.DOC}

4

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1

n. A "Settlement Class Member" ("SCM") means any member of either

2

Class as defined above, including representatives, successors and

3

assigns, who does not file a valid and timely Request for Exclusion as

4

provided for in this Settlement Agreement.

5

o. "Strip Search" means a search conducted by Kern County Sheriff

6

personnel on a Kern County inmate in which the person was required to

-7

remove his or her clothing, including underwear, in the presence of a

8

corrections officer and/or expose his or her breasts, genitals or body

9
10 11 it. 12 IL

cavities for a visual inspection. 2. This Court has jurisdiction over this Lawsuit and each of the parties to
Objections

13

3. There have been a combined total of____ objections to the settlement

14 and/or the Motion for an award of attorneys’ fees filed. The Court addresses those

15 objections below, and the award of attorney’s fees and costs further on in this

16 Order,

I

4. [Discussion of Objections]

18 III. OPT OUTS

19

S. There have been a total Of____ Opt outs, who filed timely opt out

20 notices. Except for these opt outs, all Class Members are bound by the terms of this

21 Order,

22 IV. Settlement Agreement approved because fair, adequate, and reasonable.

23

6. The settlement of this Lawsuit was not the product of collusion

24 between Plaintiffs and Defendants or their respective counsel, but rather was the

25 result of bona fide and arm’s-length negotiation conducted in good faith by the 26 Parties and their counsel, with the assistance of an independent mediator, who is a

27 retired United States District Judge.

28
(00851460.DOC}

L*i4I1UIt!1

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1

7. The Settlement Agreement and the settlement set forth therein are

2 hereby approved and found to be fair, adequate, reasonable, in the best interest of

3 the Class as a whole, and in satisfaction of Rule 23 of the Federal Rules of Civil

4

5

6

7

8

9

10 settlement.

11 VI. Class-wide Prospective Relief

12

9. As a result of this litigation, Kern County has ceased the practice of

13 strip searching court returns in groups and strip searching people who have gone to

14 court and become entitled to release as a result.

15

lb

10, As required by this Court in its Preliminary Approval Order: (a) Class

17 and Settlement Notice were mailed by first-class mail to all Class Members or their

18 representatives, whose addresses could be obtained with reasonable diligence; and

19 (b) Class and Settlement Notice was published in a summary fashion as set forth in

20 the Settlement Agreement and in the Preliminary Approval Order, all as more fully

21 set forth in the Declaration of the Class Administrator, dated

11. The notice given to the class is hereby determined to be fully in

23 compliance with requirements of Rule 23 of the Federal Rules of Civil Procedure 24 and due process and is found to be the best notice practicable under the 25 circumstances and to constitute due and sufficient notice to all parties entitled

26

27

28
00851460.DOC)

*4II:IuuI
NN

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--14 FFilieledd0022/2/232/1/111 PPaaggee482ooff1684 1:07-cv-00474DLB Document 1255 Filed 01/22/11 Page 7 of 17

1

12. Due and adequate notice of the proceedings having been given to the

2 Class and a full opportunity having been offered to the Class to participate in the

3 hearing, it is hereby determined that all Class Members, except those who have

4 opted out of the settlement (who are listed in Exhibit 1 to this Order) are bound by

5 this Final Order of Approval of Settlement.

6 VIII. Class Counsel

7

13. The Court reaffirms the appointment of Barrett S. Lift and Paul J.

8 Estuar as counsel for the Class Representatives and the Class ("Class Counsel").

9 IX. Payments To The Class By The Defendants

10

14. As set forth in more detail in the Settlement Agreement, the

11 Defendants agreed to pay all Class Members who file claims on the following

12 I terms.

13

14

15

16

17

18

19

20

21

23 24

z

26

27

28

I (00851460.DOC)

7

EXHIBIT D

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--14 FFilieledd0022/2/232/1/111 PPaaggee493ooff1684 ase 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 8 of 17

1

payments will be made to persons subjected to more than two such

2

a1c1I.. 1e.)

3

c. Group Strip Search Settlement Class Member: A Group Strip Search

4

Settlement Class Member is a SCM who meets the definition of a Group

5

Strip Settlement Class Member provided above and was subjected to a

6

group strip/vcb search during the Class Period. Defendants agree to pay a

7

SCM who qualifies as a Post-Release Class Member 1 a sum of $200. No

8

additional sums shall be paid to a Group Strip Search Settlement Class

9

Member who was subjected to a post-release strip/vcb search more than

10

one time (i.e., each Group Strip Search Settlement Class Member shall be

11

paid $200 no matter how many times the individual was subjected to a

12

group strip search).

13

15. A SCM who is a Post-Release Class Member is also entitled to

14 payment as a Group Strip Search Class Member in addition to the payment s/he

15 receives as a Post-Release Class Member,

16

16. Notwithstanding the amounts set forth above to be paid LU caCuL Class

17 Member, the parties have agreed to a maximum payout for each class, the amount 18 of which was derived from their joint estimate that claims are unlikely to exceed

19 approximately 28% of the claSs members (and, based on past experience, will

20 likely be meaningfully lower than that). Accordingly, the amounts to be paid Class

21 Members (not including class representatives) will be adjusted if the amount to be 22 awarded eligible Class Members in either the Post-Release or Group Strip Search 23 make claims that exceed the total amount to be paid to that class. In that event, the 24 amount that members of that class receive will be adjusted on a pro-rated basis, 25 which would result in payment to individual Class Members of amounts lower than 26 those set forth above, Thus, the total amount paid to Post-Release Class Members 27 is capped at $2,335,830.00, and if claims exceed that, they will be adjusted on a

28
(00851460.DOc)

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1404 of 1684 se 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 9 of 17

pro-rated basis so that the total payment to such Post-Release Class Members (first

and second time combined) will not exceed that total. Similarly, the amount paid to

Group Strip Search Class Members is capped at $2,016,000.00, and if claims

exceed that, they will be adjusted on a pro-rated basis so that the total payment to

such Group Strip Search Class Members will not exceed that total.

17. Within thirty (30) calendar days from the date the Claims

Administrator notifies counsel for Defendants of the amount necessary to satisfy

8 all proper claims, the Defendants shall have deposited with the Class Administrator

9 the sums necessary to pay all claims made and approved to date. In the event that,

10 for some reason, there are timely claims not yet resolved, Defendants shall

11 continue to provide on an ongoing basis such sums as may be required to continue

12 to pay approved claims until all such claims are paid or determined not to qualify 13 for payment.

14

18. The Administrator shall make payments to SCMs who have flied

15 timely claims in accordance with this Settlement Agreement within a reasonable

16 time, with a goal of within 120 days after the Effective Date. If a check to a SCM

17 is not cashed within three months of its mailing, the Administrator shall hold the 18 funds for nine additional months, during which time it shall make reasonable 19 efforts to contact the person to whom the un-cashed check was written to make 20 arrangements for its chasing or reissuance. Any such funds not cashed within one 21 year of its mailing shall revert to Defendants,
X Named Plaintiffs’ Distribution

23 24 25 26 27 28
{00851460.Doc}

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1415 of 1684 1:07-cv-00474-DLB Document 125-5 Filed 01/22111 Page 10 of 17

the Lift, Estuar & Kitson Client Trust Account by wire at the same time that the 2 class attorneys’ fees are paid.

3

20. The Court concludes that this award is justified because the Named

4 Plaintiffs made contributions to the class as a whole, justifying awards to them

5 higher than those to the general class. In addition, the Named Plaintiffs’

6 individualized damages claims, including special damages, are a factor in the

7 determination of the sum they receive. Such determinations cannot reasonably be

8 made for Class Members in general without unduly consuming funds for

9 administrative costs that will otherwise be available for distribution to Class

10 Members. Any fees due Class Counsel for their representation of the Named

11 Plaintiffs are encompassed within the Class Fund Attorneys’ Fees referenced

12 herein.

13 XL Class Fund Attorneys Fees

14

21. The Court has reviewed the Plaintiffs’ counsel’s claim for attorneys’

15 fees and finds them well within the accepted range for class fund fees for the

16 reasons contained in the Order Granting Plaintiffs Motion for Attorneys’ Fees and

Costs. In addition to and separate from any other payments called for in this Order,

18 the Released Parties shall pay a one-time only lump sump payment of $2,000,000, 19 to be paid to the LEK Client Trust Account, as Class Counsel attorneys’ fees, plus 20 costs not to exceed $65,000. This payment represents a full and final settlement of 21 all past, present and future attorneys’ fees and all past, present and future ordinary 22 and extraordinary costs. Defendants or their insurers will make a single wire 23 transfer to the LEK Client Trust Account that will include the approved attorneys’ 24 fees and costs, and the funds awarded to the class representatives, in a single
transfer (hereafter the "Class Rep/Fee Transfer") within thirty (30) days of the

I Effective Date.
26

27

28

{00851460.DOC}

EDI

[i4ItI:IaI

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1426 of 1684 so 1:07-cv-00474-DLB Document 125-5 Filed 01/22111 Page 11 of 17

1 XII, CLASS-WIDE PROSPECTIVE RELIEF STRIP SEARCH CLASS

2

22. As a result of this litigation, Defendants have discontinued the

3 practices of strip searching inmates in groups and strip searching inmates returning

4 from court who have become entitled to release as a result of their court

5 appearance

6 XIII. SPECIAL MASTER

7

23. The Court appoints retired United States District Judge Raul A.

8 Ramirez as the Special Master provided for in the Settlement Agreement.

9 XIV. Class Administrator

10

24. The Court reaffirms the appointment of Gilardi & Co., LLC as Class

11 Administrator (hereafter "Gilardi"), Defendants shall pay all past and future costs

12 of class administration as a separate and distinct payment from all other payments

13 set forth in this Order.

14

25. The Class Administrator shall preserve all written communications

15 from Class Members in response to the Class and Settlement Notice for at least

16 three years from the last payment of settlement funds to class members, or

pursuant to further order of the Court. All written communications received by the
-I-
18 Class Administrator from Class Members relating to the Settlement Agreement 19 shall be available at all reasonable times for inspection and copying by Counsel for 20 the Parties, 21 XV. Remaining Class Administration
26. To the extent it has not already occurred, or to the extent financial

23 obligations under this settlement become due in the future, the Class Administrator 24 shall be additionally compensated by Defendants for its services, and any costs 25 associated with them, in connection with notice and administration and for the 26 costs of giving mailed and published notice, pursuant to such orders as the Court 27 may enter from time to time, including this one. Such payment shall be separate

28

(00851460.DOC}

11

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1437 of 1684 se 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 12 of 17

1 from the payment of Named Plaintiffs awards, attorneys’ fees and costs, and 2 payments to Class Members who file claims that are accepted.

3

27. The Administrator shall make payments to SCMs in two payment

4 rounds. The first round payment shall be paid to SCMs who filed timely Proof of

5 Claim and Release Forms and whose claims have been determined to be valid,

6 within a reasonable time, with a goal to be within 120 days after the Effective

7 Date. If for some reason, there are SCMs at that time whose claims remain

8

9

28. If a check to a SCM is not cashed within three months of its mailing,

10 the Administrator shall hold the funds for nine additional months, during which

11 time it shall make reasonable efforts to contact the person to whom the un-cashed

12 check was written to make arrangements for its cashing or reissuance. Any such 13 funds not cashed within one year of its mailing shall revert to Defendants

14

15

29. Under the terms of the settlement agreement, the Administrator is

16 responsible to deduct from any claim certain ayment amounts owed by a claim

1 - participant for any liens or court orders for restitution, child support, debts to Kern

18 County and statutory liens. (Those Class Members filing claims who have liens t n under this paragraph are referred to as "Claimant with Liens.") The Class

20 Administrator will make payment to Kern County, the proper payee and/or their 21 designee for those payment amounts deducted as set forth in this paragraph. The 22 Defendants shall prepare a list of the liens or orders applicable to each Class 23 Member with Liens (hereafter referred to collectively as "lien" or "liens"). That list 24 will be provided to the Administrator, which will be responsible to confirm the list

25 of such liens. The following procedures shall apply to the liens.

26

a. For Claimants with Liens, the payment disbursement letter

27

accompanying any claim check sent to them shall include a notice of that

28

{00851460.DOC}

12

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1448 of 1684 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 13 of 17

1

amount, specifying the nature of the lien and the purported amount of the

2

lien. The notice shall include advising the claimant of his or her right to

3

contest the lien and advise him or her of the procedures to do so. The

4

notice will advise the Claimant with Liens that they have 30 days from

5

the date of receipt of such notice (based on the postmark of said notice)

6

to file a Notice Contesting Lien. A form Notice Contesting Lien shall be

7

provided to each Claimant with Liens, to be prepared by the

8

Administrator subject to approval by the parties, which will be used to

9

contest the lien.

10

b. In the event the parties are unable to resolve a lien dispute as set forth in

11

Paragraph 43(b) of the Class Action Settlement Agreement, the Special

12

Master (see ¶23) will be empowered to finally resolve any lien disputes

13

under this paragraph. To participate as a class member, any Claimant

14

with Liens will be deemed to have agreed that the Special Master’s

15

determination shall be binding and non-appealable, and that fact shall be

16

included in the letter sent to Claimants with Liens. Such a claimant may

1-

present his or her contentions and supporting documents in writing to the

18

Special Master. The Special Master will decide the validity of the lien,

19

and may request recommendations from each side’s counsel before doing

20

RW

21

22

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25

26

27

28

{00851460.DOC}

13

FANIABUff" 10
RTA

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1459 of 1684 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 140117

1

30. The Court approves the use of the liens under the terms set forth

herein, which will reduce the portion of the settlement provided to any SCM to

3 whom these provisions apply. Any government recordation of such liens or debts

4 shall be adjusted to the extent necessary to reflect the reduction resulting from the

5 pay down of the liens or debts effectuated by this provision.

6 XVII. GENERAL PROVISIONS

7

31. Claim forms not received or postmarked by ____, 2011, shall not be

8 paid, although such persons shall nonetheless be bound by this Order.

9

32. All Class Members except those who timely filed opt-out forms shall

10 be bound by this Order.

11

33. Except as otherwise provided in this Order, each party shall bear its

12 own costs, expenses and attorneys’ fees.

13

34. The use of the masculine gender herein is construed to include the

14 feminine and/or the neuter where applicable. The use of the singular herein is to be

15 construed to include the plural where applicable. The use of the plural herein shall

16 be construed to include the singular where applicable.

35. Any disputes regarding the right of a claimant or Class Member to
1/
18 qualify for payment under Order shall be resolved by the Special Master.

19

36. The Court reserves and maintains jurisdiction over this settlement and

20 its provisions, and over the Class Administration and distribution of the funds.

21 Disagreements between the parties on any disputes or unresolved aspects of this

22 Order shall be subject to mediation before the mediator who has mediated this case

23 to date. If mediation is not successful, the matter shall be brought to this Court for

24 resolution.

25 I XVIII.

FINAL RESOLUTION

26

37. The monetary relief provided for in the Settlement Agreement shall

27 compensate for all alleged violations of rights and all claims by the plaintiff Class

28

(00851460.DOC}

El

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1560 of 1684 e 1:07-cv-00474..DLB Document 125-5 Filed 01/22/11 Page 15 of 17

1 Members that were or could have been brought in this civil action under any theory 2 of liability related to allegedly unlawful strip searches of those within the class

3 definitions contained herein, except as to monetary damages for those Class

Mi Members who choose to opt out.

5

38. The Court hereby dismisses the Lawsuit on the merits, with prejudice,

6 and without further costs, with such dismissal subject only to compliance by the

7 Parties with the terms and conditions of the Settlement Agreement and this Final

8 Order of Approval of Settlement. The Court retains jurisdiction for that purpose.

9

39. Plaintiffs, including their agents, attorneys and assigns, are hereby

l0 severally and permanently barred and enjoined, to the fullest extent permitted by

11 law, from filing, commencing, instituting, maintaining, prosecuting or participating

12 in a lawsuit or any other proceeding against the Defendants, including the

13 employees, entities, agents, attorneys and insurers of Defendants, involving or

14 based on any of the claims encompassed by this Settlement and Order, including

15 specifically claims on behalf of any Class Member whose claims are covered by

16 this Settlement and Order,

1/

40. The Named Plaintiffs and each Settlement Class Member waive all

18 rights or benefits which he or she now has or in the future may have under the

19 terms of California Civil Code Section 1542, arising from, alleged in, or pertaining
20 to the claims that were asserted in the Lawsuit, specifically claims for Post-Release 21 and/or Group strip/visual body cavity searches. Section 1542 reads:
41. A general release does not extend to claims which the creditor does 23 not know or suspect to exist in his or her favor at the time of executing the release, 24 which if known by him or her must have materially affected his or her settlement

25 I with the debtor.

26

27

28

(00851 460.DOC)

15

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1571 of 1684 se 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 16 of 17

1

42. Plaintiffs and Class Members have not relied upon the advice of Class

2 Counsel as to the legal and/or tax consequences of this settlement, the payment of

3 any money by the Defendants or the distribution of the Settlement Funds.

4

43. Neither this Final Order of Approval of Settlement, the Settlement

5 Agreement, nor any of its terms or the negotiations or papers related thereto a)

6 shall constitute evidence or an admission by any Defendant that any acts of

-7 wrongdoing have been committed, b) shall be offered or received in evidence or

8 used for any purpose whatsoever, in this or any other matter or proceeding in any

9 court, administrative agency, arbitration, or other tribunal, other than as expressly

10 set forth in the Settlement Agreement, or c) be deemed to create any inference that

11 there is any liability therefore.

12

44. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the

13 Court finds that there is no just reason for delay and therefore directs entry of this 14 Final Order of Approval of Settlement. Inasmuch as this disposes of all claims 15 asserted in the Lawsuit, the Court further directs the Clerk to enter an order of 16 dismissal pursuant to F,R,Civ,P Rule 41(a)(1)(2).

1/

18 T’ A 1JJ1

I

ri.:

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(0085 1460DOC}

UNITED STATES MAGISTRATE JUDGE Hull

Case 1:07-cv-00474-DLB Document 12390-41 Filed 02/223/11 Page 1582 of 1684 ase 1:07-cv-00474-DLB Document 125-5 Filed 01/22/11 Page 17 of 17

2 Submitted jointly by:

3
Barrett S. Lift Counsel for Plaintiffs
5

6

7 By: Barrett S. Litt
8

9 Terrence J. Cassidy 10 Counsel for Defendants

11

12 I1

13

Terrence 3. Cassidy

14

15

18 19 20 21. 22 23 24 25 26 27 28
{00851460,DOC)

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee513ooff1624
a

CCaassCeea1s1e:0::07079--c-c1vv6--000000k447744-3-D1D/L2LB1B/20DD1o1occuuPmmaegenent:t11132o09f--135 IDFF:iliel7ed6d200222/82/23D2/1/k11t1EnPtPrayag:ge2e7524ooff1624
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 21 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MARSIAL LOPEZ; et al.,
Plaintiffs - Appellees,
"a
DONNY YOUNGBLOOD, Sheriff, individually and in his official capacity; et al.,
Defendants - Appellants, TWO
COUNTY OF KERN, a government entity; et al.,
Defendants.

Nos. 09-16006; 09-17331
D.C. No. 1:07-cv-00474-DLB Eastern District of California, Fresno

CCaasCseeas11e:0::0707-9-c1cv6v-0-000004477443--1DD/L2LB1B12DD0o1oc1cuumPmaeegnnett:11232o09f-3-15IDF:Fi7liel6ed2d2002d2/2/D232k/1/t1E11ntPrPya:ag2ge7e535ooff1624

Pursuant to the stipulation of the parties and the supplemental letter filed by counsel on January 21, 2011, these consolidated appeals are voluntarily dismissed pursuant to Fed, R. App. P. 42(b) without prejudice to reinstatement in the event any of the following occurrences take place:
(1) the District Court denies preliminary or final approval of the class action settlement reached by the parties through their mediation before the Honorable Raul Ramirez (see "Recitals" in the parties’ January 19, 2011, joint motion);
(2) the number of opt-outs exceeds 25 and defendants file a notice in the District Court that the are exercising their right to rescind the settlement agreement;
(3) there is an objection from a class member that is granted and materially changes the terms of the settlement agreement such that either plaintiffs or defendants withdraw, via written notice filed in the District Court, from the

(4) there is an overruled class member objection that is timely appealed and therefore has not become final, and either (a) the Court of Appeal issues an order

and mandate that upholds the overruled objection or (b) the United States Supreme

1* uaridifl1I.

a.i1

.MsureIT ii 1riJlff.wL4.1,uPifi1ilhiToIIto1iJ

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee546ooff1624 Case: 09-1600 1/21f2011 Page: 3 of 3 ID: 7622 d DktEntry: 27
In the event of listed items one through three, above, one of the parties shall file a notice of reinstatement within 28 days from the date of filing any such order or notice. In the event of listed item four, above, one of the parties shall file a notice of reinstatement within 28 days (a) after the filing of the mandate from the Court of Appeals that upholds the overruled objection or (b) after the United States Supreme Court upholds the overruled objection, if a petition for a writ of certiorari is filed and granted.
A copy of this order served upon the District Court shall act as and for the mandate of this court.
By: C. Lewis Ross Circuit Mediator

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee557ooff1624 Case 1:07-cv-00474-DLB Document 128 Filed 01/25/11 Page I of 2

1 Barrett S. Litt, SBN 45527 Paul J. Estuar, SBN 167764
2 E-Mail: pestuar@littlaw.com LITT, ESTUAR & KITSON, LLP
3 1055 Wilshire Boulevard, Suite 1880 Los Angeles, California 90017
4 Telephone: (213) 386-3114
Facsimile: (213) 380-4585 5

Robert Mann, SBN 48293 6 Donald W. Cook, SBN 116666

7

E-Mail: doncook@earthljnk.net Attorneys at Law

8

3435 Wilshire Boulevard, Suite 2900 Los Angeles, California 90010

9

Telephone: (213) 252-9444 Facsimile: (213) 252-0091

10 Attorneys for Plaintiffs

11 PORTER SCOTT

12

A PROFESSIONAL CORPORATION Terence J. Cassidy, SBN 99180

13 Kristina M. Hall, SBN 196794
350 University Avenue, Suite 200

14 Sacramento, California 95825

Telephone: (916) 929-1481

15 Facsimile: (916) 927-3706

16

Mark L. Nations, Chief Deputy, SBN 10 183 8 Office of the County Counsel 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
Attorneys for Defendants COUNTY OF KERN, its agency the KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBTSH

17

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA

20

21 22

MARSIAL LOPEZ, SANDRA CHAVEZ, THEODORE MEDINA, each individually, and as class representatives,

Case No. CV-F-07-0474 DLB [Hon. Dennis L. Beck

Plaintiffs, vs

24 SHERIFF

25

26 MM
27 28

Defendants, Defendants,

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee568ooff1624 Case 1:07-cv00474DL8 Document 128 Filed 01/25111 Page 2 of 2

1

Attached hereto is Exhibit B to the Preliminary Approval Order, as well as the

2 signature pages to Exhibit A and Exhibit D to the Preliminary Approval Order, all filed in

3 this matter on January 22, 2011.

4 Dated: January 25, 2011
5

LITT, ESTTJAR & KITS ON, LLP

6

By: Is! Barrett S. Litt

7

Barrett S. Litt

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

If

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee579ooff1624
Case 1 :07-cv-00474-DLB Document 128-1 Filed 01/25/11 Page 1 of 1

2 DATED: January 24, 2011
3 4 5
6 DATED: January 21, 2011
7 8 9 10 11 12 13 14

By: /s/ Mark L. Nations Mark L. Nations, Chief Deputy Office of the County Counsel COUNTY OF KERN
By: /s/ Barrett S. Litt Barrett S. Lift LITT, ESTUAR & KITSON Attorneys for Plaintiffs

16

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18 00850924.DOC)
CLASS ACTION SETTLEMENT AGREEMENT
KE

EXHIBIT A

CCaassee11:0:077--ccvv--0000447744--DDLLBB DDooccuummeenntt113209--15 FFilieledd0022/2/232/1/111 PPaaggee680ooff1624
Case 1:07-cv-00474-DLB Document 128-2 Filed 01/25/11 Page 1 of 1

1
2 Submitted jointly by:
3 4 Barrett S. Litt
Counsel for Plaintiffs 5
6 By: /s/ Barrett S. Litt Barrett S. Litt
8

Terrence J. Cassidy 10 Counsel for Defendants

11

12 By: /s/ Terence J. Cassidy

13

Terrence J. Cassidy

14

15

16

17

18

19 20 21

22

23

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(0085 1460.DOC}

17

61

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1
2 Submitted jointly by:
3 4 Barrett S. Litt
Counsel for Plaintiffs 5
6 By: /s/ Barrett S. Litt Barrett S. Litt
8

Terrence J. Cassidy 10 Counsel for Defendants

11

12 By: /s/ Terence J. Cassidy

13

Terrence J. Cassidy

14

U
16 17 18 19 20

U Li 22

23

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{00851460.DOC}

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Case 1:07-cv-00474-DLB Document 12390-51 Filed 02/223/11 Page 1602 of 1624
2j3 i11! ktr
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 21 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MARSIAL LOPEZ; et al.,
Plaintiffs - Appellees,
V.
DONNY YOUNGBLOOD, Sheriff, individually and in his official capacity; et al.,
Defendants - Appellants, and
COUNTY OF KERN, a government entity; et al.,
Defendants.

Nos. 09-16006; 09-17331 D.C. No. 1:07cv-00474-DLB Eastern District of California, Fresno
ORDER

DONNY YOUNGBLOQD; et al., Petitioners,
V.
MARSIAL LOPEZ; et al,, Respondents.

No. 09-80131
D.C. No. 1 :07-cv-00474-DLB Eastern District of California, Fresno

EXHIBIT E 62

Case 1:07-cv-00474-DLB Document 12390-51 Filed 02/223/11 Page 1613 of 1624
Pursuant to the stipulation of the parties and the supplemental letter filed by counsel on January 21, 2011, these consolidated appeals are voluntarily dismissed pursuant to Fed. R. App. P. 42(b) without prejudice to reinstatement in the event any of the following occurrences take place:
(I) the District Court denies preliminary or final approval of the class action settlement reached by the parties through their mediation before the Honorable Raul Ramirez ( "Recitals" in the parties’ January 19, 2011, joint motion);
(2) the number of opt-outs exceeds 25 and defendants file a notice in the District Court that the are exercising their right to rescind the settlement agreement;
(3) there is an objection from a class member that is granted and materially changes the terms of the settlement agreement such that either plaintiffs or defendants withdraw, via written notice filed in the District Court, from the settlement;
(4) there is an overruled class member objection that is timely appealed and therefore has not become final, and either. (a) the Court of Appeal issues an order and mandate that upholds the overruled objection or (b) the United States Supreme
EXHIBIT E 63

Case 1:07-cv-00474-DLB Document 12390-51 Filed 02/223/11 Page 1624 of 1624

’ WP’&’

o13

In the event of listed items one through three, above, one of the parties shall file a notice of reinstatement within 28 days from the date of filing any such order or notice. In the event of listed item four, above, one of the parties shall file a notice of reinstatement within 28 days (a) after the filing of the mandate from the Court of Appeals that uphQlds the overruled objection or (b) after the United States Supreme Court upholds the overruled objection, if a petition for a writ of certiorari is filed and granted.
A copy of this order served upon the District Court shall act as and for the mandate of this court.
FOR THE COURT
By: C. Lewis Ross Circuit Mediator

EXHIBIT E 64

 
 Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 1 of 23

1 Barrett S. Litt, SBN 45527

2

Paul J. Estuar, SBN 167764 E-Mail: pestuar@littlaw.com

3 LITT, ESTUAR & KITSON, LLP

4

1055 Wilshire Boulevard, Suite 1880 Los Angeles, California 90017

5 Telephone: (213) 386-3114

6 Facsimile: (213) 380-4585

7 Attorneys for Plaintiffs

8 PORTER SCOTT

9 A PROFESSIONAL CORPORATION

10

Terence J. Cassidy, SBN 99180 Kristina M. Hall, SBN 196794

11 350 University Avenue, Suite 200

12

Sacramento, California 95825 Telephone: (916) 929-1481

13 Facsimile: (916) 927-3706

14 Attorneys for Defendant COUNTY OF 15 KERN

16

Mark L. Nations,Chief Deputy, SBN 101838 Office of the County Counsel 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: (661) 868-3800 Facsimile: (661) 868-3805
Attorneys for Defendants COUNTY OF KERN, KERN COUNTY SHERIFF’S OFFICE, DONNY YOUNGBLOOD and MACK WIMBISH

17

18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

19

MARSIAL LOPEZ, SANDRA

20

CHAVEZ, THEODORE MEDINA, each individually, and as class

21 representatives,

22 vs.

Plaintiffs,

23 SHERIFF DONNY YOUNGBLOOD,

24 et al.,

Case No. CV-F-07-0474 DLB [Hon. Dennis L. Beck]
FINAL ORDER OF APPROVAL AND SETTLEMENT

Date:

August 26, 2011

Time:

9:00 A.M.

Courtroom: 9

25

Defendants.

26

27

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 2 of 23

1 I. INTRODUCTION

2

This lawsuit having come before this Court for a hearing, pursuant to this

3 Court’s Preliminary Approval Order, dated February 23, 2011 (the “Preliminary

4 Approval Order”) to consider and determine the matters set forth in the

5 Preliminary Approval Order; and due notice of said hearing having been published

6 and given; and all entities that made timely objections to the proposed settlement

7 set forth in the Settlement Agreement made and entered into on October 26, 2010,

8 and described in the Class and Settlement Notice, having been given an

9 opportunity to present such objections to the Court; and the Court having

10 considered the matter, including all papers filed in connection therewith, and the

11 oral presentations of counsel at said hearing; and good cause appearing,

12

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

13

1. Each term and phrase used in this Final Order of Approval and

14 Settlement shall have the same definition and meaning as in the Settlement

15 Agreement, as follows:

16

a. “Administrator” means the Class Administrator Gilardi & Co.,

17

LLC, as agreed upon by the parties and as to be appointed by

18

the Court, to review and determine the validity and amount of

19

claims submitted by a Settlement Class Member (“SCM”) (as

20

defined herein), according to the procedures set forth herein.

21

b. The “Bar Date” is the date by which any SCM who wishes to

22

receive payment pursuant to the Settlement Agreement must

23

file his/her Proof of Claim and Release Form (attached as

24

Exhibit B to the Declaration of Tricia M. Solorzano,

25

concurrently filed with the Joint Motion for Final Order of

26

Approval and Settlement), objections to this Settlement

27

1

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 3 of 23

1

Agreement, or request to be excluded from the class (opt-out).

2

The Bar Date shall be calculated as the close of business on the

3

120th day after the last day of mailing Class Notice (the time

4

frame for which mailing is up to two consecutive business days

5

from beginning to end, as is addressed in ¶34 of the Settlement

6

Agreement).

7

c. “Class Counsel” means Barrett S. Litt and Paul J. Estuar, of

8

Litt, Estuar & Kitson (“LEK”), 1055 Wilshire Boulevard, Suite

9

1880, Los Angeles CA. 90017.

10

d. The “Class Notice” means the notice to the Class regarding

11

settlement, to be sent to Class Members in a form substantially

12

similar to that attached hereto as Exhibit C, and such other

13

summary notice to be published in accordance with the terms of

this Settlement Agreement. 14

e. The “Class Period” is March 27, 2005, to October 1, 2007. 15

f. The Settlement Agreement “Database” is the information 16
provided in hard copy and/or electronic form by the Defendants

17 to the Administrator and Class Counsel no later than ten (10)

18

days from the date the Court grants preliminary approval of the

19

terms of this Settlement Agreement (if it has not already

20

occurred). It may include, to the extent available, the name,

21

address at time of booking, date of birth, Social Security

22

Number, whether the inmate is a Post-Release Settlement Class

23

Member 1 or 2, and any other computerized data relevant to

24

determining Class Membership or notifying Class Members.

25

g. The “Effective Date” means the date upon which a judgment

26

entered by the Court approving the Settlement Agreement

27

2

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 4 of 23

1

becomes final. The Judgment will be deemed final only upon

2

expiration of the time to appeal or, if a Notice of Appeal is

3

filed, upon exhaustion of all appeals and petitions for writs of

4

certiorari, the final resolution of which upholds the settlement.

5

h. An “Opt-Out” is any Class Member who files a timely request

6

for exclusion pursuant to the terms of the Settlement

7

Agreement, as specified in Paragraph 43.

8

i. The “Proof of Claim Form” means the Proof of Claim and

9

Release Form required to be used to make a claim for payment

10

under this settlement. A copy of the Proof of Claim form is

11

attached as Exhibit B to the Solorzano Declaration.

12

j. “Released Person” means the Defendants and their affiliates,

13

subsidiaries, predecessors, successors, and/or assigns, together

with past, present and future officials, employees, 14

representatives, attorneys, and/or agents of the County of Kern, 15

the Kern County Sheriff’s Department, or any of them. 16
“Released Persons” also includes any and all insurance carriers,

17 and/or their representatives and attorneys, for the Released

18

Persons.

19

k. “Post-Release Class” means those persons who, from March

20

27, 2005, up to October 1, 2007, (a) were in KCSD custody; (b)

21

were taken from jail to court; (c) became entitled to release

22

after going to court; and (d) were strip and/or visual body cavity

23

(“vbc”) searched before release pursuant to KCSD’s blanket

24

policy, practice and/or custom to strip/vbc search all court

25

returns, including those entitled to release.

26

l. “Group Strip Search Class” means those persons who, from

27

3

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 5 of 23

1

March 27, 2005, up to October 1, 2007, (a) were in KCSD

2

custody; (b) were subjected to a strip and/or visual body cavity

3

search in a group with other inmates also being strip/vbc

4

searched, which search did not afford privacy from others; and

5

(c) whose strip searches were conducted pursuant to KCSD’s

6

blanket policy, practice and/or custom to regularly conduct

7

strip/vbc searches in a group setting.

8

m. A “Class Member” means any member of either Class as

9

defined above.

10

n. A “Settlement Class Member” (“SCM”) means any member of

11

either Class as defined above, including representatives,

12

successors and assigns, who does not file a valid and timely

13

Request for Exclusion as provided for in ¶44 of the Settlement

Agreement. 14

o. A “Claimant with Liens” means those SCMs filing claims who 15
owe amounts for any liens or court orders for restitution, child 16
support, debts to county and statutory liens. 17
p. “Strip Search” means a search conducted by Kern County

18

Sheriff’s personnel on a Kern County inmate in which the

19

person was required to remove his or her clothing, including

20

underwear, in the presence of a corrections officer and/or

21

expose his or her breasts, genitals or body cavities for a visual

22

inspection.

23

2. This Court has jurisdiction over this Lawsuit and each of the parties to

24 it.

25

26

27

4

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 6 of 23

1 II. SETTLEMENT AGREEMENT APPROVED BECAUSE FAIR,

2

ADEQUATE AND REASONABLE

3

3. The settlement of this lawsuit was not the product of collusion

4 between Plaintiffs and Defendants or their respective counsel, but rather was the

5 result of arm’s-length negotiations conducted in good faith by the parties and their

6 counsel, with the assistance of an independent mediator.

7

4. The Class’s satisfaction with the settlement is reflected in the claim

8 statistics. There were 36,075 total identified class members in the County’s

9 database, 29,678 of whom had a mailing address. After re-mailing returned

10 mailings, the Class Administrator was able to mail successfully to 22,917 such

11 members. There were 7,961 timely Claim Forms filed, which is over 34% of class

12 members reached through the mail. (See Solórzano Decl., ¶¶3-10.) If the total

13 36,075 class members are counted, this is a claim rate of 22%. According to

14 Plaintiffs’ counsel, who have handled several of these cases, this is on the high end

15 of claim rates. (See Declaration of Barrett S. Litt, ¶5.) There were only two

16 objections (addressed in Section VII, infra) and 15 opt-outs (addressed in Section

17 VI, infra) , which means that, even if opt-outs are considered individuals

18 dissatisfied in some form with the result (a conclusion not borne out by the content

19 of the opt-outs), less than 1/20 of 1% of class members expressed any type of

20 arguable dissatisfaction. Litt Decl., ¶6. This is a highly favorable reaction by the

21 class to the settlement. See, e.g., Hughes v. Microsoft Corp., 2001 WL 34089697, 8

22 (W.D.Wash. 2001) (court found that the “class members overwhelmingly

23 support[ed] the settlement” where there were over 37,000 notices sent out, 2,745

24 class members participated in the settlement, “only nine objections were

25 submitted”, and there were 86 timely opt-outs and over 20 additional defective or

26 untimely opt-outs; “these indicia of the approval of the class of the terms of the

27

5

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 7 of 23

1 settlement support a finding of fairness under Rule 23”), citing Hanlon v. Chrysler

2 Corp., 150 F.3d 1011, 1027 (9th Cir.1998) (despite vigorous objections and appeal

3 by objectors, “fact that the overwhelming majority of the class willingly approved

4 the offer and stayed in the class presents at least some objective positive

5 commentary as to its fairness”; court did not abuse its discretion in approving

6 settlement).

7

5. The Settlement Agreement and the settlement set forth therein –

8 attached to the Preliminary Approval Order in this case – are hereby approved and

9 found to be fair, adequate, reasonable, in the best interest of the Class as a whole,

10 and in satisfaction of Rule 23 of the Federal Rules of Civil Procedure and due

11 process requirements.

12 III. CERTIFICATION OF STRIP SEARCH CLASSES

13

6. The Court has previously certified Strip Search Classes under Fed. R.

14 Civ. P. 23(b)(3) for damages and monetary relief. Class Members have a right to

15 opt out of the settlement. The Court hereby reaffirms the class definitions as set

16 forth in the Class Certification Order of April 1, 2009, and reiterated in the

17 Settlement Agreement, including the class period of March 27, 2005, to October 1,

18 2007.

19

7. The Court reaffirms that all the criteria of Fed. R. Civ. P. 23(a) and

20 (b)(3) are met for all the classes settled herein. Specifically, the Court finds that all

21 the criteria of Rule 23(a) are met, to wit, 1) that the class is so numerous that

22 joinder of all members individually is impracticable, 2) that there are questions of

23 law or fact common to the class, 3) that Plaintiffs’ claims are typical of the claims

24 of Class Members, and 4) that the persons representing the class must be able fairly

25 and adequately to protect the interests of all members of the class. The Court

26 further finds, pursuant to the provisions of Rule 23(b)(3) that 1) the common

27

6

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 8 of 23

1 factual and legal issues predominate over any such issues that affect only

2 individual Class Members, and 2) that a class action is superior to other available

3 methods for the fair and efficient adjudication of the controversy. The Court

4 further concludes that nothing in the parties’ settlement alters, but rather, if

5 anything, reinforces, the prior conclusions it reached regarding the desirability of

6 the class action mechanism as a means of resolving the claims in this case.

7 IV. NOTICE

8

8. As required by this Court in its Preliminary Approval Order: (a) Class

9 and Settlement Notice, and Claim Forms, were mailed by first-class mail to all

10 Class Members for whom addresses could be determined, and to all potential Class

11 Members who requested a copy; and (b) Class and Settlement Notice was

12 published as set forth in the Settlement Agreement and in the Preliminary

13 Approval Order, all as more fully set forth in the Declaration of Tricia M.

14 Solorzano.

15

9. The notice given to the class is hereby determined to be fully in

16 compliance with requirements of Rule 23 of the Federal Rules of Civil Procedure

17 and due process, and is found to be the best notice practicable under the

18 circumstances and to constitute due and sufficient notice to all parties entitled

19 thereto.

20

10. Due and adequate notice of the proceedings having been given to the

21 Class and a full opportunity having been offered to the Class to participate in the

22 hearing, it is hereby determined that all Class Members, except those who have

23 opted out of the settlement, listed in the Declaration of Julia C. White, are bound

24 by this Final Order of Approval and Settlement.

25 V. CLAIMS FILED

26

11. The claims filing postmark deadline was on July 13, 2011. As of

27

7

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 9 of 23

1 August 12, 2011, the Class Administrator has received 7,961 timely Claim Forms

2 and 111 late Claim Forms. Solorzano Decl., ¶10. Of the 111 late Claim Forms, 21

3 were Post-Release Class members.

4

12. The Court will allow the valid late claims to be considered and paid if

5 received by the Claims Administrator by August 26, 2011.

6 VI. OPT-OUTS

7

13. There were 14 unequivocal opt-outs. Solorzano Decl., ¶11. This

8 figure does not include 1 individual who subsequently retracted [his/her] opt-out.

9

14. As class members have opted out, Plaintiffs’ counsel have attempted

10 to contact opt-outs to see if they had any questions that could be cleared up.

11 Declaration of Julia C. White, ¶2. Counsel was able to find contact information

12 for 12 of the individuals. White Decl., ¶¶2(a), (c), (d), (e). Based on these contacts,

13 Plaintiffs’ counsel have been able to determine the nature of most if not all of the

14 reasons the opt-outs were filed.

15

15. Six individuals indicated that they believed they were never strip

16 searched. White Decl., ¶2(d). One additional individual indicated he was never

17 incarcerated in Kern County Jail. White Decl., ¶2(e). As such, these people should

18 not be considered opt-outs even if they filed an opt-out request, as they do not

19 qualify as class members at all because a condition of membership in each class is

20 that the person was strip searched by Kern County.

21 VII. OBJECTIONS

22

16. There have been two objections to the settlement in this matter.

23

17. The first objection, by Gregory McClellan, was dated March 24, 2011,

24 prior to the deadline for filing objections. A copy of Mr. McClellan’s objection

25 was previously filed with the Court on July 13, 2011. Mr. McClellan also filed a

26 claim form. According to Mr. McClellan, he was strip searched on three occasions

27

8

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 10 of 23

1 (twice on 11-09-2006, and once on 11-16-2006). He objects to the settlement

2 amount due him, which he indicates is $200, and instead is seeking $1,500.00. He

3 cites no case law and gives no particular factual reason why he is entitled to

4 $1,500, as opposed to the amount he is due to receive as a result of this settlement.

5

18. The second objection, by Sean Robbins, was dated June 8, 2011, prior

6 to the deadline for filing objections. A copy of Mr. Robbins’ objection was

7 previously filed with the Court on July 13, 2011. He also filed a claim form, and

8 he is due $200 under the settlement. According to Mr. Robbins, he was strip

9 searched on multiple occasions during the booking process, during inmate transfers

10 and on return from court. Mr. Robbins also claims that he was strip searched by

11 female officers. He objects to the settlement amount due him, but does not provide

12 an amount to which he believes he is due.

13

19. The settlement of this lawsuit was not the product of collusion

14 between Plaintiffs and Defendants or their respective counsel. Rather, it was the

15 result of bona fide and arm’s-length negotiations conducted in good faith by the

16 parties and their counsel with the assistance of an independent mediator, who is a

17 retired United States District Judge.

18

Plaintiffs’ counsels’ efforts prior to settlement were extensive, and involved

19 all that occurs in a case that is litigated up to the eve of trial. The work performed

20 included: 1) extensive investigation of the underlying circumstances, including

21 speaking with scores of class members; 2) discovery including three sets of

22 requests for production of documents, interrogatories and multiple depositions; 4)

23 multiple summary judgment motions by both sides, on all of which Plaintiffs

24 prevailed; 5) a successful contested motion to certify the classes; 6) retention of

25 data consultants and extensive analysis of computerized jail data; 7) contested

26 motions to certify an interlocutory appeal; and 8) attendance and work associated

27

9

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 11 of 23

1 with four day-long mediation sessions.

2

Any settlement requires compromise by both parties and involves the

3 weighing of several considerations. One significant factor in settlement is to take

4 into account the risks associated with proceeding through to trial. The issues

5 involved are complex areas of constitutional law in an arena where considerable

6 deference is given to jail officials. The settlement in this case encompassed two

7 categories of class members. At the time this lawsuit was filed, the law was not

8 settled in either of the areas encompassed by the suit. For the Group Strip Search

9 class, there is very little law stating that a strip search in a group setting is in and of

10 itself a constitutional violation. For the Post-Release class, in the course of the

11 lawsuit, there were developments that can fairly be stated as problematic for

12 Plaintiffs. Those cases, namely Bull v. City & County of San Francisco, 595 F.3d

13 964, 966 (9th Cir. 2010); Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008); and

14 Florence v. Bd. of Chosen Freeholders of County of Burlington, 621 F.3d 296 (3d

15 Cir. 9/21/2010), cert. granted, 2011 WL 202772 (4/4/2011), all demonstrated

16 substantial risk and uncertainty for Plaintiffs in what is now unsettled legal terrain.

17 Further, the authority upon which Plaintiffs were able to rely was relatively scant,

18 and emanated from the body of law whose validity is at least called into question

19 by Bull, Powell and Florence.

20

The financial terms of the settlement are very favorable to class members.

21 Post-release class members receive $1500 for a first time and $750 for a second

22 offense. This is considerably higher than the average recovery in many other strip

23 search class actions. While this is partly explained by the scale of the other cases

24 compared to this one, the fact remains that class members are receiving very

25 favorable payments. In addition, those for whom searches would have otherwise

26 been legal under Plaintiffs’ theories had they been conducted in privacy (i.e., those

27

10

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 12 of 23

1 strip searched in groups), are receiving money, including Messrs. McClellan and

2 Robbins.

3

The reason for the difference in values for the two groups - $1500 for post-

4 release versus $200 for group strip search – is primarily that the very act of strip

5 searching post-release is (Plaintiffs contended) illegal. In contrast, Plaintiffs did

6 not contend that the act of strip searching those searched in groups was illegal,

7 only the manner of the search. Since most jails provide a variety of settings in

8 which inmates are nude in front of each other and in front of guards, the damages

9 for group searches are relatively minimal compared to damages for one illegally

10 strip searched.

11

The results in this case cannot be judged solely by the monetary component

12 of the settlement. The County ceased all strip search practices addressed in this

13 settlement. That is a major accomplishment, particularly in light of the standing

14 limitations imposed on such cases. Tens of thousands of future inmates have been

15 spared the “embarrassing and humiliating experience”, and “extensive intrusion on

16 personal privacy”, that a strip search, “regardless of how professionally and

17 courteously conducted”, necessarily entails. In some cases, they will not be strip

18 searched at all (post-release inmates) and in others, if they are strip searched, it will

19 be done with much greater privacy.

20

Unlike most class actions, Plaintiffs and the classes they represent were

21 persons charged with crimes and, thus, not people generally considered

22 sympathetic or desirable by the public at large. This makes any potential jury

23 verdict speculative at best.

24

With regard to Mr. Robbins’ objection that he was strip searched by female

25 guards, this was not a claim raised in the lawsuit. More importantly, the Ninth

26 Circuit has held that visual body strip searches of male inmates by female guards

27

11

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 13 of 23

1 are not per se unlawful. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th

2 Cir.1985) (pat-down searches of male inmates that included groin area by female

3 guards do not violate Fourth Amendment); Michenfelder v. Sumner, 860 F.2d 328,

4 332, 334 (9th Cir.1988) (occasional visual strip searches of male inmates by

5 female guards do not violate Fourth Amendment; “[o]ur circuit's law respects an

6 incarcerated prisoner's right to bodily privacy, but has found that assigned

7 positions of female guards that require only infrequent and casual observation, or

8 observation at distance, and that are reasonably related to prison needs are not so

9 degrading as to warrant court interference” ); Jordan v. Gardner, 986 F.2d 1521,

10 1524-26 (9th Cir. 1993) (policy that male guards would routinely engage in

11 “clothed body searches” of women inmates, which entailed a search up to several

12 minutes, running the guard’s hands over the female inmate’s clothed body from the

13 neck to the feet, “push[ing] inward and upward when searching the crotch and

14 upper thighs”, and flattening the breast, violated the Eighth Amendment; the record

15 established that that “women experience unwanted intimate touching by men

16 differently from men subject to comparable touching by women”, and that many of

17 the women inmates at WCCW suffered had “histories of sexual or physical abuse

18 by men”). Had Mr. Robbins wished to pursue such a claim for himself, he had that

19 right, but it is not a valid objection to this settlement.

20

20. Based on the foregoing, the Court overrules the objections by Gregory

21 McClellan and Sean Robbins.

22 VIII. ALLOCATION AND DISTRIBUTION OF SETTLEMENT FUND

23

21. The Court hereby approves the Settlement Agreement. The Court

24 finds that Defendants’ proposed payment of the following amounts (each of which

25 is in addition to the other) are within the range of what would constitute a fair,

26 reasonable, and adequate settlement in the best interests of the class as a whole:

27

12

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 14 of 23

1

(a) A person who was subjected for the first time during the class

2

period (between March 27, 2005, and October 1, 2007) to a

3

Kern County strip search after a Court ordered him or her to be

4

released from all pending charges, and the person was in fact

5

entitled to immediate release based on that order, will receive a

6

payment of $1500 (subject to certain possible adjustments

7

described below in ¶2(d)).

8

(b) A person who was subjected for a second time during the class

9

period (between March 27, 2005, and October 1, 2007) to a

10

Kern County strip search after a Court ordered him or her to be

11

released from all pending charges, and the person was in fact

12

entitled to immediate release based on that order, will receive a

13

payment of $750 in addition to the $1500 for the first strip

14

search (again subject to certain possible adjustments described

15

below in ¶2(d)). No additional payments will be made to

16

persons subjected to more than two such searches.

17

(c) A person who was strip searched in a group while in Kern

County custody will receive a one time only payment 18

(regardless of the number of times the person was strip searched 19

in a group) of $200 (subject to certain possible adjustments

20 described below in ¶2(d)).

21 (d) Notwithstanding the amounts set forth above to be paid to each

22 class member, the parties have agreed to a maximum payout for

23

each class, the amount of which was derived from their joint

24

estimate that claims are unlikely to exceed approximately 28%

25

of the class members (and, based on past experience, will likely

26

be meaningfully lower than that). Accordingly, the amounts to

27

13

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 15 of 23

1

be paid Class Members (not including class representatives)

2

will be adjusted if the amount to be awarded eligible Class

3

Members in either the Post-Release or Group Strip Search who

4

make claims exceeds the total amount to be paid to that Class.

5

In that event, the amount that members of that class receive will

6

be adjusted on a pro-rated basis, which would result in payment

7

to individual Class Members of amounts lower than those set

8

forth above. The total amount paid to Post-Release Class

9

Members is capped at $2,335,830.00, and if claims exceed that,

10

they will be adjusted on a pro-rated basis so that the total

11

payment to such Post-Release Class Members (first and second

12

time combined) will not exceed that total. The amount paid to

13

Group Strip Search Class Members is capped at $2,016,000.00,

14

and if claims exceed that, they will be adjusted on a pro-rated

15

basis so that the total payment to such Group Strip Search Class

16

Members will not exceed that total.

17

(e) Class administration costs, as described below at Section X.

(f) $2,000,000 in attorneys’ fees, plus class counsel costs not to 18

exceed $65,000.

19

(g) $30,000 damages award to each Named Plaintiff, of whom

20 there are three, as identified below at Section IX.

21 22. The Administrator shall make payments to SCMs who have filed

22 timely claims in accordance with this Final Approval Order within a reasonable

23 time, with a goal of within 120 days after the Effective Date. If a check to a SCM

24 is not cashed within three months of its mailing, the Administrator shall hold the

25 funds for six additional months, during which time it shall make reasonable efforts

26 to contact the person to whom the un-cashed check was written to make

27

14

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 16 of 23

1 arrangements for its cashing or reissuance. Any such funds not cashed within one

2 year of its mailing shall revert to Defendants.

3 IX. NAMED PLAINTIFFS’ DISTRIBUTION

4

23. The class representatives are Marsial Lopez, Sandra Chavez, and

5 Theodore Medina. The Court awards each of the Named Plaintiffs $30,000. The

6 Named Plaintiffs will not otherwise participate in the claims process involving

7 SCM’s, or receive any other payment under the terms of the Settlement

8 Agreement.

9

24. The Court concludes that this award is justified because the Named

10 Plaintiffs made contributions to the class as a whole, justifying awards to them

11 higher than those to the general class. In addition, the Named Plaintiffs’

12 individualized damages claims, including special damages, are a factor in the

13 determination of the sum they receive. Such determinations cannot reasonably be

14 made for class members in general without unduly consuming funds for

15 administrative costs that will otherwise be available for distribution to Class

16 members. Any fees due Class Counsel for their representation of the Named

17 Plaintiffs are encompassed within the Class Fund Attorneys’ Fees referenced

18 herein.

19 X. CLASS ADMINISTRATION

20

25. The Court reaffirms the retention of Gilardi & Co., LLC (“Gilardi”) as

21 Class Administrator to administer the distribution of the Class and Settlement

22 Notice. The Court authorizes the payment, to be made immediately by the

23 Defendants to cover Gilardi’s expenses to date. The Court also authorizes payment

24 of Gilardi’s further expenses by the Defendants related to class administration,

25 distribution of settlement checks to Class Members, and handling of payments to

26 Claimants with Liens as set forth in the Settlement Agreement.

27

15

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 17 of 23

1

26. As part of the overall costs of Class Administration, the Court

2 authorizes payment by Defendants of any expenses for a Special Master as set

3 forth in the Settlement Agreement, should retention of a Special Master become

4 necessary. No further order of this Court is required to pay Class Administration

5 costs. Such payment shall be separate from the payment of Named Plaintiffs,

6 attorneys’ fees and costs, and payments to class members.

7 XI. LIEN PROVISIONS

8

27. Consistent with the terms of the Settlement Agreement, the Class

9 Administrator shall deduct from any claim certain payment amounts owed by a

10 Claimant with Liens for any liens or court orders for restitution, child support,

11 debts to county and statutory liens. The Class Administrator will make payment to

12 Kern County, the proper payee and/or their designee for those payment amounts

13 deducted as set forth in this paragraph. The Defendants shall prepare a list of the

14 liens or orders applicable to each Claimant with Liens. That list will be provided to

15 the Administrator, which will be responsible to confirm the list of such liens. The

16 following procedures shall apply to the liens.

17

a. For Claimants with Liens, the payment disbursement letter

18

accompanying any claim check sent to them shall include a

19

notice of that amount, specifying the nature of the lien and the

20

purported amount of the lien. The Notice shall include advising

21

the claimant of his or her right to contest the lien and advise

22

him or her of the procedures to do so. The Notice will advise

23

the Claimant with Liens that they have 30 days from the date of

24

receipt of such notice (based on the postmark of said notice) to

25

file a Notice Contesting Lien, and of the procedure to contest

26

the lien. A form Notice Contesting Lien shall be provided to

27

16

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 18 of 23

1

each Claimant with Liens, to be prepared by the Administrator

2

subject to approval by the parties, which will be used to contest

3

the lien. The Notice Contesting Lien shall specify the grounds

4

for the objection, and copies shall be sent to Class Counsel,

5

Defendants’ counsel and the Claims Administrator.

6

b. First, the SCM, Class Counsel and Defendants’ Counsel will

7

attempt to resolve the objection by meet and confer conference.

8

In the event the objection cannot be resolved in that fashion, the

9

Special Master agreed to pursuant to ¶49 of the Settlement

10

Agreement will be empowered to resolve any lien disputes

11

under this paragraph. To participate as a class member, any

12

Claimant with Liens will be deemed to have agreed that the

13

Special Master’s determination shall be binding and non-

14

appealable, and that fact shall be included in the letter sent to

15

Claimants with Liens. Such a claimant may present his or her

16

contentions and supporting documents in writing to the Special

17

Master. The Special Master will decide the validity of the lien,

18

and may request recommendations from each side’s counsel

19

before doing so.

20

c. Despite the amount of any lien, no Claimant with Liens shall

21

have to pay more than 50% of his/her class fund payment

22

towards the lien, which ensures that the claimant will receive

23

funds for his/her claim regardless of the amount of any lien.

24

d. The cost of the Special Master shall be borne by the Defendants

25

as part of the Class Administration costs.

26

28. The Court approves the use of the liens under the terms set forth

27

17

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 19 of 23

1 above, which will reduce the portion of the settlement provided to any SCM to

2 whom these provisions apply. Any government recordation of such liens or debts

3 shall be adjusted to the extent necessary to reflect the reduction resulting from the

4 pay down of the liens or debts effectuated by this provision.

5 XII. SPECIAL MASTER

6

29. The Court reaffirms the appointment of retired United States District

7 Judge Raul A. Ramirez as the Special Master in this case.

8 XIII. CLASS COUNSEL

9

30. The Court reaffirms the appointment of Barrett S. Litt and Paul J.

10 Estuar of Litt, Estuar & Kitson, LLP, as Class Counsel.

11 XIV. CLASS FUND ATTORNEYS’ FEES

12

31. As set forth in the Settlement Agreement, Defendants shall pay a one-

13 time only lump sump payment of $2,000,000 + costs (Two Million Dollars +

14 actual costs) issued to Litt, Estuar & Kitson, LLP, which payment is inclusive of

15 fees and costs. This payment represents a full and final settlement of all past,

16 present and future attorneys’ fees and all past, present and future ordinary and

17 extraordinary costs. It shall be paid as specified in ¶34, infra.

18

32. The Court has reviewed the Plaintiffs’ counsel’s claim for attorneys’

19 fees and finds them well within the accepted range for class fund fees.

20

33. The Court finds the parties’ agreement regarding attorneys’ fees and

21 costs to be reasonable, and awards the requested fees and costs. It addresses the

22 issue in a separate order approving the fees and cost request herein.

23

24

25

26

27

18

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 20 of 23

1 XV. FORM OF PAYMENT OF NAMED PLAINTIFFS’ DISTRIBUTION

2

AND ATTORNEYS’ FEES

3

34. Within 30 days after the Effective Date, Defendants or their insurers

4 will issue a check that will include the approved attorneys’ fees and costs and the

5 funds awarded to the class representatives in a single check. Alternatively

6 Defendants or their insurers may make a single wire transfer to the Litt, Estuar &

7 Kitson, LLP Client Trust Account that will include the approved attorneys’ fees

8 and costs, and the funds awarded to the class representatives in a single transfer

9 (hereafter the “Class Rep/Fee Transfer”) within thirty (30) days of the Effective

10 Date.

11 XVI. GENERAL PROVISIONS

12

35. Claim forms not received by August 26, 2011, shall not be paid,

13 although such persons shall nonetheless be bound by this Order.

14

36. All class members except those who timely filed opt-outs shall be

15 bound by this Order.

16

37. Except as otherwise provided in this Order, each party shall bear its

17 own costs, expenses and attorneys’ fees.

18

38. The use of the masculine gender herein is construed to include the

19 feminine and/or the neuter where applicable. The use of the singular herein is to be

20 construed to include the plural where applicable. The use of the plural herein shall

21 be construed to include the singular where applicable.

22

39. Any disputes regarding the right of a claimant or class member to

23 qualify for payment under Order shall be resolved by the Special Master.

24

40. The Court reserves and maintains jurisdiction over this settlement and

25 its provisions, and over the claims administration and distribution of the funds.

26 Disagreements between the parties on any disputes or unresolved aspects of this

27

19

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 21 of 23

1 Order shall be subject to mediation before the mediator who has mediated this case

2 to date. If mediation is not successful, the matter shall be brought to this Court for

3 resolution.

4

41. At the conclusion of the Class Distribution, the Class Administrator

5 shall submit a report to the Court summarizing the payments made to the Class,

6 and seeking any final administrative costs to be approved.

7 XVII. FINAL RESOLUTION

8

42. The monetary relief provided for in the Settlement Agreement shall

9 compensate for all alleged violations of rights and all claims by the Plaintiff class

10 members that were or could have been brought in this civil action under any theory

11 of liability related to allegedly unlawful strip searches of those within the class

12 definitions contained herein, except as to monetary damages for those class

13 members who choose to opt out.

14

43. The Court hereby dismisses the lawsuit on the merits, with prejudice,

15 and without further costs, with such dismissal subject only to compliance by the

16 Parties with the terms and conditions of the Settlement Agreement and this Final

17 Order of Approval and Settlement.

18

44. Plaintiffs, including their agents, attorneys and assigns, are hereby

19 severally and permanently barred and enjoined, to the fullest extent permitted by

20 law, from filing, commencing, instituting, maintaining, prosecuting or participating

21 in a lawsuit or any other proceeding against the Defendants, including the

22 employees, entities, agents, attorneys and insurers of Defendants, involving or

23 based on any of the claims encompassed by this Settlement and Order, including

24 specifically claims on behalf of any class member whose claims are covered by

25 this Settlement and Order.

26

45. The Named Plaintiffs and each Class Member waive all rights or

27

20

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 22 of 23

1 benefits which he or she now has or in the future may have under the terms of

2 California Civil Code §1542, arising from, alleged in, or pertaining to the claims

3 that were asserted in the Lawsuit, specifically claims for strip searches and/or

4 visual body cavity searches. Section 1542 reads:

5

“A general release does not extend to claims which the creditor does not

6

know or suspect to exist in his or her favor at the time of executing the

7

release, which if known by him or her must have materially affected his or

8

her settlement with the debtor.”

9

46. Plaintiffs have not relied upon the advice of Class Counsel as to the

10 legal and/or tax consequences of this settlement, the payment of any money by the

11 Defendants or the distribution of the Settlement Funds.

12

47. Neither this Final Order of Approval and Settlement, the Settlement

13 Agreement, nor any of its terms or the negotiations or papers related thereto shall

14 constitute evidence or an admission by any Defendant that any acts of wrongdoing

15 have been committed, and they shall not be deemed to create any inference that 16 there is any liability therefore. Neither this Final Order of Approval and 17 Settlement, nor the Settlement Agreement, nor any of its terms or the negotiations 18 or papers related thereto shall be offered or received in evidence or used for any

19 purpose whatsoever, in this or any other matter or proceeding in any court, 20 administrative agency, arbitration, or other tribunal, other than as expressly set 21 forth in the Settlement Agreement. 22 ///

23 /// 24 /// 25 /// 26 ///

27

21

28

Case 1:07-cv-00474-DLB Document 151 Filed 08/31/11 Page 23 of 23

1

48. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the

2 Court finds that there is no just reason for delay and therefore directs entry of this

3 Final Order of Approval and Settlement. Inasmuch as this disposes of all claims

4 asserted in the Lawsuit, the Court further directs the Clerk to enter an order of

5 dismissal pursuant to F.R.Civ.P Rule 41(a)(1)(2).

6

7 DATED: 30 August 2011

8

9

UNITED

/s/ Dennis L. Beck
DENNIS L. BECK STATES MAGISTRATE JUDGE

10

11 Submitted jointly by:

12

13

Barrett S. Litt Counsel for Plaintiffs

14

15

By: __/s/ Barrett S. Litt ____ Barrett S. Litt

16

17 Terence J. Cassidy 18 Counsel for Defendants

19 By: __/s/ Terence J. Cassidy___

20

Terence J. Cassidy

21

22

23

24

25

26

27

22

28

 
 Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 1 of 15
CONSENT, CIVIL, CLOSED
U.S. District Court Eastern District of California − Live System (Fresno)
CIVIL DOCKET FOR CASE #: 1:07−cv−00474−DLB

Lopez et al., v. Youngblood et al., Assigned to: Magistrate Judge Dennis L. Beck Case in other court: U.S.C.A., 09−16006 Cause: 42:1983 Civil Rights Act Plaintiff Marsial Lopez
Plaintiff Sandra Chavez

Date Filed: 03/27/2007 Date Terminated: 08/31/2011 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Barrett S. Litt Litt Estuar and Kitson, LLP 1055 Wilshire Boulevard Suite 1800 Los Angeles, CA 90017 213−386−3114 ext. 217 Fax: 213−380−4585 Email: jwhite@littlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald W. Cook − OPT OUT ATTORNEY Law Office of Robert Mann &Donald Cook 3435 Wilshire Boulevard Suite 2900 Los Angeles, CA 90010 213−252−9444 Fax: 213−252−0091 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J. Estuar Litt Estuar and Kitson, LLP 1055 Wilshire Boulevard Suite 1800 Los Angeles, CA 90017 213−386−3114 xt. 210 Fax: 213−380−4585 Email: pestuar@littlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence John Cassidy Porter Scott, APC 350 University Avenue Suite 200 Sacramento, CA 95825 (916) 929−1481 x316 Fax: (916) 927−3706 Email: tcassidy@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barrett S. Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 2 of 15

Donald W. Cook − OPT OUT ATTORNEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. Estuar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Theodore Medina

represented by Barrett S. Litt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Cook − OPT OUT ATTORNEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. Estuar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Donny Youngblood

represented by Jennifer Leigh Thurston Office of the County Counsel, County of Kern 1115 Truxtun Avenue, 4th Floor Bakersfield, CA 93301 (661) 868−3836 Fax: (661) 868−3805 Email: jthursto@co.kern.ca.us TERMINATED: 12/08/2009 LEAD ATTORNEY
Mark Lloyd Nations Kern County Counsel 1115 Truxtun Avenue 4th Floor Bakersfield, CA 93301 (661) 868−3818 Fax: (661) 868−3805 Email: mnations@co.kern.ca.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 3 of 15

Terence John Cassidy (See above for address)

Defendant County of Kern

represented by Jennifer Leigh Thurston (See above for address) TERMINATED: 12/08/2009 LEAD ATTORNEY

Mark Lloyd Nations (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kern County Sheriff's Department a California public entity

represented by Jennifer Leigh Thurston (See above for address) TERMINATED: 12/08/2009 LEAD ATTORNEY

Mark Lloyd Nations (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address)

Defendant
Mack Wimbish Former Sheriff

represented by Jennifer Leigh Thurston (See above for address) TERMINATED: 12/08/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Lloyd Nations (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/27/2007
03/27/2007 03/27/2007

# Docket Text
1 COMPLAINT /Class Action Complaint for Damages, against all defendants by Marsial Lopez. Attorney Cook − OPT OUT ATTORNEY, Donald W. added.(Cook − OPT OUT ATTORNEY, Donald) (Entered: 03/27/2007)
2 CIVIL COVER SHEET by Marsial Lopez (Cook − OPT OUT ATTORNEY, Donald) (Entered: 03/27/2007)
3 CLERK'S NOTICE: Attn: Barrett S. Litt &Paul J. Estuar ~ You are not admitted to practice in the Eastern District of CA. Please return the attached petition along with the admission fee as soon as possible. (Kusamura, W) (Entered: 03/27/2007)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 4 of 15

03/27/2007 03/27/2007 03/27/2007
04/05/2007 04/05/2007 05/01/2007 05/01/2007 05/02/2007
05/02/2007 06/21/2007 06/22/2007
06/22/2007 06/22/2007
06/22/2007
07/16/2007 07/16/2007 07/17/2007 08/13/2007

RECEIPT number 100 204810 for $350.00 for Civil Filing Fee from Donald W. Cook. (Carter−Ford, R) (Entered: 03/27/2007)
5 PRISONER NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms) (Carter−Ford, R) (Entered: 03/27/2007)
SERVICE BY MAIL: 5 Prisoner New Case Documents for LJO served on Donald W. Cook − OPT OUT ATTORNEY. 3 Clerk's Notice served on Paul J. Estuar − NOT EDCA ADMITTED, Barrett S. Litt − NOT EDCA ADMITTED. (Carter−Ford, R) (Entered: 03/27/2007)
6 CONSENT to JURISDICTION by US MAGISTRATE JUDGE by Marsial Lopez )signed by Attorney Paul Estuar). (Rooney, M) (Entered: 04/09/2007)
7 CONSENT to JURISDICTION by US MAGISTRATE JUDGE by Marsial Lopez (signed by Attorney Barrett S. Litt). (Rooney, M) (Entered: 04/09/2007)
8 ORDER directing Clerk of the Court to Redesignate Case to Reflect that it is a Regular Civil Action, signed by Judge Dennis L. Beck on 4/30/07. (Gil−Garcia, A) (Entered: 05/01/2007)
SERVICE BY MAIL: 8 Order served on Donald W. Cook − OPT OUT ATTORNEY (Gil−Garcia, A) (Entered: 05/01/2007)
9 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 10/23/2007 at 08:15 AM in Courtroom 4(LJO) before District Judge Lawrence J. O'Neill. (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Gil−Garcia, A) (Entered: 05/02/2007)
SERVICE BY MAIL: 9 Civil New Case Documents for LJO served on Donald W. Cook − OPT OUT ATTORNEY (Gil−Garcia, A) (Entered: 05/02/2007)
10 First AMENDED COMPLAINT against all defendants by Marsial Lopez.(Litt, Barrett) (Entered: 06/21/2007)
11 **PLEASE DISREGARD THIS ENTRY**SUMMONS ISSUED as to *Kern County Sheriff's Department* with answer to complaint due within *20* days. Attorney *Paul Estuar* *1055 Wilshire Blvd.* *Ste. 1880* *Los Angeles, CA 90017*. (Kirkpatrick, S) Modified on 6/22/2007 (Matson, R). (Entered: 06/22/2007)
SERVICE BY MAIL: 11 Summons, served on Donald W. Cook − OPT OUT ATTORNEY. (Kirkpatrick, S) (Entered: 06/22/2007)
12 **PLEASE DISREGARD THIS ENTRY**SUMMONS ISSUED as to *Mack Wimbish, Donny Youngblood, County of Kern* with answer to complaint due within *20* days. Attorney *Paul J. Estuar* *Litt Estuar Harrison Miller &Kitson* *1055 Wilshire Blvd., Ste. 1800* *Los Angeles, CA 90017*. (Hellings, J) Modified on 6/22/2007 (Matson, R). (Entered: 06/22/2007)
13 AMENDED SUMMONS ISSUED as to *Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish* with answer to complaint due within *20* days. Attorney *Paul J. Estuar* *1055 Wilshire Blvd.* *Suite 1880* *Los Angeles, Ca 90017*. (Matson, R) Modified on 6/22/2007 (Matson, R). (Entered: 06/22/2007)
14 ANSWER to AMENDED COMPLAINT by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. Attorney Thurston, Jennifer Leigh added.(Thurston, Jennifer) (Entered: 07/16/2007)
15 CERTIFICATE of SERVICE by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish re 14 Answer to Amended Complaint. (Thurston, Jennifer) (Entered: 07/16/2007)
16 NOTICE by all plaintiffs. SERVICE OF JUDGE O'NEILL'S ORDER (Estuar, Paul) (Entered: 07/17/2007)
17 CERTIFICATE of SERVICE by Marsial Lopez. (Attachments: # 1 Certificate Certificates of Service)(Estuar, Paul) (Entered: 08/13/2007)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 5 of 15

10/12/2007 10/23/2007 10/24/2007
10/24/2007 10/25/2007 10/25/2007 10/26/2007 10/26/2007 10/26/2007 10/31/2007 11/15/2007
01/10/2008 01/14/2008 01/15/2008 01/15/2008 03/12/2008 03/12/2008

18 JOINT STATUS REPORT by Marsial Lopez. (Estuar, Paul) (Entered: 10/12/2007)
19 MINUTES (Text Only) for proceedings held before Judge Lawrence J. O'Neill : SCHEDULING CONFERENCE held on 10/23/2007. Order to follow. (Lira, I) (Entered: 10/24/2007)
20 PRELIMINARY SCHEDULING ORDER signed by Judge Lawrence J. O'Neill on 10/23/2007. Discovery cutoff re class certification only due by 1/18/2008; Filing the Motion due by 3/17/2008; Opposition to the Motion due by 4/17/2008; Reply due by 04/28/2008; Motion Hearing set for 5/8/2008 at 08:30 AM in Courtroom 4(LJO) before District Judge Lawrence J. O'Neill. (Flores, E) (Entered: 10/24/2007)
SERVICE BY MAIL: 20 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Flores, E) (Entered: 10/24/2007)
21 CONSENT to JURISDICTION by US MAGISTRATE JUDGE by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. (Thurston, Jennifer) (Entered: 10/25/2007)
22 CERTIFICATE of SERVICE by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish re 21 Consent to Jurisdiction by US Magistrate Judge. (Thurston, Jennifer) (Entered: 10/25/2007)
23 STIPULATION and PROPOSED ORDER Protective Order by Marsial Lopez. (Estuar, Paul) (Entered: 10/26/2007)
24 CONSENT ORDER REASSIGNING CASE for all purposes to Magistrate Judge Dennis L. Beck signed by Judge Lawrence J. O'Neill on 10/26/2007. (Esteves, C) (Entered: 10/26/2007)
SERVICE BY MAIL: 24 Consent Order Reassigning Case to Magistrate Judge served on Donald W. Cook − OPT OUT ATTORNEY. (Esteves, C) (Entered: 10/26/2007)
25 STIPULATED PROTECTIVE ORDER signed by Judge Dennis L. Beck on 10/31/2007. (Lucas, G) (Entered: 10/31/2007)
26 MINUTE ORDER: (TEXT ENTRY ONLY) Due to the Consent to Proceed before Magistrate Judge Beck ORDER issued on 10/24/2007. The Preliminary Scheduling Order remains the same, except for the Motion Hearing date is set for 5/9/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck (MOTION Hearing will not be heard before Judge O'Neill on 5/8/2008). (Hernandez, M) (Entered: 11/15/2007)
27 ASSOCIATION of ATTORNEY: Added attorney Terence John Cassidy and Terence John Cassidy for County of Kern. (Cassidy, Terence) (Entered: 01/10/2008)
28 STIPULATION and PROPOSED ORDER Stipulation to Continue Discovery Cut−Off by Marsial Lopez, Sandra Chavez, Theodore Medina. (Estuar, Paul) (Entered: 01/14/2008)
29 STIPULATION and ORDER Continuing Class Discovery Cut−Off Date to February 15, 2008 signed by Judge Dennis L. Beck on 1/14/08. Discovery due by 2/15/2008. (Verduzco, M) (Entered: 01/15/2008)
SERVICE BY MAIL: 29 Stipulation and Order served on Donald W. Cook − OPT OUT ATTORNEY. (Verduzco, M) (Entered: 01/15/2008)
30 STIPULATION and PROPOSED ORDER STIPULATION TO EXTEND DATES by Marsial Lopez, Sandra Chavez, Theodore Medina. (Attachments: # 1 Proposed Order TO EXTEND DATES)(Litt, Barrett) (Entered: 03/12/2008)
31 PROPOSED ORDER REVISED Proposed Order re 30 Stipulation and Proposed Order by Marsial Lopez, Sandra Chavez, Theodore Medina. (Litt, Barrett) (Entered: 03/12/2008)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 6 of 15

03/14/2008
03/14/2008 06/17/2008
06/17/2008
06/20/2008 07/17/2008
07/17/2008 07/17/2008 07/17/2008 07/17/2008 07/17/2008 07/17/2008 07/17/2008 07/18/2008

32 ORDER re: Class Discovery Cut−off and Briefing Schedule on Plaintiffs' Motion for Class Certification signed by Magistrate Judge Dennis L. Beck on 3/13/08. Class Certification Discovery due by 5/15/2008; Plaintiffs' Opening Brief on Class Certification due by 6/17/2008; Defendants' Opposition due by 7/17/2008; Plaintiffs' Reply Brief due by 7/28/2008; Motion Hearing set for 8/29/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck.(Verduzco, M) (Entered: 03/14/2008)
SERVICE BY MAIL: 32 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Verduzco, M) (Entered: 03/14/2008)
33 MOTION to CERTIFY CLASS and Notice of Motion by Marsial Lopez, Sandra Chavez, Theodore Medina. Motion Hearing set for 8/29/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Attachments: # 1 Points and Authorities for Class Certification Motion)(Litt, Barrett) (Entered: 06/17/2008)
34 DECLARATION of Barrett S. Litt in Support of re 33 MOTION to CERTIFY CLASS and Notice of Motion. (Attachments: # 1 Exhibit 1 to Litt Declaration, # 2 Exhibit 2 to Litt Declaration, # 3 Exhibit 3 to Litt Declaration, # 4 Exhibit 4 to Litt Declaration, # 5 Exhibit 5 to Litt Declaration, # 6 Exhibit 6 to Litt Declaration, # 7 Exhibit 7 to Litt Declaration, # 8 Exhibit 8 to Litt Declaration, # 9 Exhibit 9 to Litt Declaration, # 10 Exhibit 10 to Litt Declaration)(Litt, Barrett) (Entered: 06/17/2008)
35 NOTICE OF ERRATA by all plaintiffs re 34 . (Attachments: # 1 Declaration of Marsial Lopez, Executed)(Litt, Barrett) (Entered: 06/20/2008)
36 MOTION for SUMMARY JUDGMENT DEFENDANTS JOINT NOTICE OF MOTION FOR SUMMARY ADJUDICATION by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. Attorney Cassidy, Terence John added. Motion Hearing set for 8/29/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cassidy, Terence) (Entered: 07/17/2008)
37 MEMORANDUM/RESPONSE in SUPPORT. DEFENDANTS JOINT MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (Cassidy, Terence) (Entered: 07/17/2008)
38 STATEMENT of UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION by Defendants Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. (Cassidy, Terence) (Entered: 07/17/2008)
39 DECLARATION of Ian Silva in Support of. Defendants' Joint Motion for Summary Adjudication (Cassidy, Terence) (Entered: 07/17/2008)
40 DECLARATION of Terence J. Cassidy in Support of. Defendants' Joint Motion for Summary Adjudication (Cassidy, Terence) (Entered: 07/17/2008)
41 MEMORANDUM/RESPONSE in OPPOSITION. DEFENDANTS JOINT OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION (Cassidy, Terence) (Entered: 07/17/2008)
42 DECLARATION of Ian Silva in Support of. DEFENDANTS JOINT OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION (Cassidy, Terence) (Entered: 07/17/2008)
43 DECLARATION of Terence J. Cassidy in Support of. DEFENDANTS JOINT OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION (Cassidy, Terence) (Entered: 07/17/2008)
44 NOTICE DEFENDANTS JOINT NOTICE OF FILING RELATED MOTION IN CONJUNCTION WITH OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION [L.R. 78−230(e)] by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. (Cassidy, Terence) (Entered: 07/18/2008)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 7 of 15

07/21/2008
07/28/2008 07/28/2008
07/28/2008 08/14/2008 08/20/2008
08/20/2008 08/28/2008
09/09/2008 09/15/2008 09/15/2008 09/16/2008 09/16/2008 09/16/2008 09/16/2008

45 MINUTE ORDER: (TEXT ENTRY ONLY) DUE TO THE COURT'S SCHEDULE. The Court has RESET THE FOLLOWING MOTION HEARINGS as to 33 MOTION to CERTIFY CLASS and Notice of Motion, 36 MOTION for SUMMARY JUDGMENT DEFENDANTS JOINT NOTICE OF MOTION FOR SUMMARY ADJUDICATION : Motion Hearing RESET from 8/29/2008 to 9/5/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Hernandez, M) (Entered: 07/21/2008)
46 REPLY to RESPONSE to MOTION. for Class Certification (Estuar, Paul) (Entered: 07/28/2008)
47 MOTION to STRIKE Declaration in Support of Opposition to Class Certification by Marsial Lopez, Sandra Chavez, Theodore Medina. Motion Hearing set for 9/5/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Attachments: # 1 Proposed Order Re Motion to Strike)(Estuar, Paul) (Entered: 07/28/2008)
48 OBJECTIONS by Plaintiffs Marsial Lopez, Sandra Chavez, Theodore Medina. to Declaration in Support of Opposition to Motion for Class Certification (Estuar, Paul) (Entered: 07/28/2008)
49 STIPULATION and PROPOSED ORDER for Continuance by Marsial Lopez, Sandra Chavez, Theodore Medina. (Attachments: # 1 Proposed Order For Continuance)(Estuar, Paul) (Entered: 08/14/2008)
50 ORDER signed by Magistrate Judge Dennis L. Beck on 08/18/2008 re Class Discovery Cut−off and Briefing Schedule on Plaintiffs Motion for Class Certification re 33 MOTION to CERTIFY CLASS, 36 MOTION for SUMMARY JUDGMENT, 45 Minute Order and 47 MOTION to STRIKE. ( Motion Hearings are re−set for 10/17/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck.). (Lundstrom, T) (Entered: 08/20/2008)
SERVICE BY MAIL: 50 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Lundstrom, T) (Entered: 08/20/2008)
51 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: TELEPHONIC STATUS CONFERENCE held on 8/28/2008. The parties shall submit a proposed stipulation and order for the Court to review. Plaintiffs Counsel Barrett Litt. Defendants Counsel Jennifer Thurston, Terence Cassidy. Court Reporter/CD Number: In Chambers. (Hernandez, M) (Entered: 08/28/2008)
52 STIPULATION and PROPOSED ORDER Joint Stipulation to Continue Dates by Marsial Lopez, Sandra Chavez, Theodore Medina. (Attachments: # 1 Proposed Order to Continue Dates)(Estuar, Paul) (Entered: 09/09/2008)
53 ORDER Re: Schedule for Briefing and Hearing Dates, signed by Magistrate Judge Dennis L. Beck on 9/10/2008. (Sondheim, M) (Entered: 09/15/2008)
SERVICE BY MAIL: 53 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Sondheim, M) (Entered: 09/15/2008)
54 OPPOSITION by Marsial Lopez, Sandra Chavez, Theodore Medina. Plaintiffs' Opposition to Defendants' Motion for Summary Adjudication (Estuar, Paul) (Entered: 09/16/2008)
55 STATEMENT of Disputed and Undisputed Facts in Support of Plaintiffs' Opposition by Plaintiffs Marsial Lopez, Sandra Chavez, Theodore Medina re 54 Opposition to Motion. (Estuar, Paul) (Entered: 09/16/2008)
56 OBJECTIONS by Plaintiffs Marsial Lopez, Sandra Chavez, Theodore Medina. Plaintiffs' Objections to the Declaration of Ian Silva (Estuar, Paul) (Entered: 09/16/2008)
57 DECLARATION of Paul J. Estuar re 54 Opposition to Motion. (Attachments: # 1 Exhibit 1 to Estuar Declaration, # 2 Exhibit 2 to Estuar Declaration, # 3 Exhibit 5 to Estuar Declaration, # 4 Exhibit 7 to Estuar Declaration, # 5 Exhibit 11 to Estuar Declaration, # 6 Exhibit 12 to Estuar Declaration, # 7 Exhibit 13 to Estuar Declaration)(Estuar, Paul) (Entered: 09/16/2008)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 8 of 15

10/03/2008 10/03/2008
10/03/2008 10/03/2008 10/15/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008

58 REPLY by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish to RESPONSE. DEFENDANTS JOINT REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION (Cassidy, Terence) (Entered: 10/03/2008)
59 STATEMENT of DEFENDANTS JOINT REPLY TO PLAINTIFFS STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION by Defendants Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. (Cassidy, Terence) (Entered: 10/03/2008)
60 OBJECTIONS by Defendants Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. DEFENDANTS JOINT OBJECTIONS TO DECLARATION OF PAUL J. ESTUAR IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS JOINT MOTION FOR SUMMARY ADJUDICATION (Cassidy, Terence) (Entered: 10/03/2008)
61 OPPOSITION by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. DEFENDANTS JOINT OPPOSITION TO PLAINTIFFS MOTION TO STRIKE DECLARATION OF IAN SILVA (Cassidy, Terence) (Entered: 10/03/2008)
62 STATEMENT of DEFENDANTS' WITHDRAWAL OF CERTAIN EVIDENTIARY OBJECTIONS by Defendants Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish re 36 MOTION for SUMMARY JUDGMENT DEFENDANTS JOINT NOTICE OF MOTION FOR SUMMARY ADJUDICATION. (Thurston, Jennifer) (Entered: 10/15/2008)
63 MOTION for SUMMARY JUDGMENT Defendants' Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity by County of Kern. Motion Hearing set for 12/19/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cassidy, Terence) (Entered: 11/07/2008)
64 MEMORANDUM by County of Kern. Defendants' Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity (Cassidy, Terence) (Entered: 11/07/2008)
65 STATEMENT of Defendants' Joint Separate Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity by Defendant County of Kern. (Cassidy, Terence) (Entered: 11/07/2008)
66 DECLARATION of Ian Silva in Support Of 63 MOTION for SUMMARY JUDGMENT Defendants' Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity. (Cassidy, Terence) (Entered: 11/07/2008)
67 MOTION for SUMMARY JUDGMENT , Plaintiffs Notice of Motion for Partial Summary Judgment And/Or Summary Adjudication, by Marsial Lopez, Sandra Chavez, Theodore Medina. Motion Hearing set for 12/19/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/07/2008)
68 STATEMENT of UNDISPUTED FACTS IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION by Plaintiffs Marsial Lopez, Sandra Chavez, Theodore Medina re 67 MOTION for SUMMARY JUDGMENT , Plaintiffs Notice of Motion for Partial Summary Judgment And/Or Summary Adjudication,. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/07/2008)
69 MEMORANDUM by Marsial Lopez, Sandra Chavez, Theodore Medina in SUPPORT of 67 MOTION for SUMMARY JUDGMENT , Plaintiffs Notice of Motion for Partial Summary Judgment And/Or Summary Adjudication,. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/07/2008)
70 DECLARATION of DONALD W. COOK in SUPPORT OF 67 MOTION for SUMMARY JUDGMENT , Plaintiffs Notice of Motion for Partial Summary

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 9 of 15

11/12/2008 11/12/2008
11/12/2008
11/14/2008
11/14/2008 11/21/2008 11/21/2008 11/21/2008 11/21/2008
11/21/2008 11/21/2008 12/02/2008 12/05/2008

Judgment And/Or Summary Adjudication,. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/07/2008)
71 MOTION to AMEND the COMPLAINT amending 10 Amended Complaint NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT by Marsial Lopez, Sandra Chavez, Theodore Medina. Motion Hearing set for 12/15/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Estuar, Paul) (Entered: 11/12/2008)
72 DECLARATION of Paul J. Estuar in In Support Of 71 MOTION to AMEND the COMPLAINT amending 10 Amended Complaint NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT MOTION to AMEND the COMPLAINT amending 10 Amended Complaint NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT. (Attachments: # 1 Exhibit A &B to Estuar Declaration)(Estuar, Paul) (Entered: 11/12/2008)
73 PROPOSED ORDER Proposed Order re 71 MOTION to AMEND the COMPLAINT amending 10 Amended Complaint NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT MOTION to AMEND the COMPLAINT amending 10 Amended Complaint NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT. (Estuar, Paul) (Entered: 11/12/2008)
74 MINUTE ORDER: (TEXT ENTRY ONLY) THE COURT RESETS THE MOTION HEARING as to 71 NOTICE OF MOTION AND MOTION TO FILE SECOND AMENDED COMPLAINT MOTION to AMEND the COMPLAINT 10 Amended Complaint: Motion Hearing RESET from 12/15/2008 to 12/19/2008 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Hernandez, M) (Entered: 11/14/2008)
SERVICE BY MAIL: 74 Minute Order Reset Motion Hearing served on Donald W. Cook − OPT OUT ATTORNEY (Hernandez, M) (Entered: 11/14/2008)
75 OPPOSITION by County of Kern. Defendants' Joint Opposition to Plaintiffs' Cross−Motion for Summary Adjudication (Cassidy, Terence) (Entered: 11/21/2008)
76 STATEMENT of Defendants' Joint Reply to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Cross−Motion for Summary Adjudication by Defendant County of Kern. (Cassidy, Terence) (Entered: 11/21/2008)
77 OBJECTIONS by Defendant County of Kern. Defendants' Joint Objections to Declaration of Donald W. Cook in Support of Plaintiffs' Cross−Motion for Summary Adjudication (Cassidy, Terence) (Entered: 11/21/2008)
78 OPPOSITION by Marsial Lopez, Sandra Chavez, Theodore Medina to 63 MOTION for SUMMARY JUDGMENT Defendants' Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity. Plaintiffs Memorandum of Law in Opposition to Defendants Second of Motion for Summary Judgment And/Or Summary Adjudication (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/21/2008)
79 STATEMENT of Plaintiffs Response to Defendants Joint Statement of Undisputed Material Facts by Plaintiffs Marsial Lopez, Sandra Chavez, Theodore Medina re 65 Statement − R,. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/21/2008)
80 DECLARATION of Barrett S. Litt &Donald W. Cook in OPPOSITION TO 63 MOTION for SUMMARY JUDGMENT Defendants' Joint Motion for Summary Adjudication Regarding Court Returnees, Qualified Immunity and Eleventh Amendment Immunity. (Cook − OPT OUT ATTORNEY, Donald) (Entered: 11/21/2008)
81 OPPOSITION by County of Kern. Defendants' Joint Opposition to Plaintiffs' Motion to Amend Complaint (Cassidy, Terence) (Entered: 12/02/2008)
82 REPLY by County of Kern to RESPONSE. Defendants' Joint Reply to Opposition to Cross−Motion for Summary Adjudication Regarding Qualified Immunity and

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 10 of 15

12/05/2008 12/05/2008 12/05/2008 12/05/2008 12/06/2008 12/19/2008
03/10/2009 03/31/2009 03/31/2009 03/31/2009
04/01/2009 04/28/2009 04/28/2009

Eleventh Amendment Issues (Cassidy, Terence) (Entered: 12/05/2008)
83 REPLY/RESPONSE to Defendants' Joint Reply to Plaintiffs' Responses to Defendants' Joint Statement of Undisputed Material Facts; Defendants' Joint Objections and Responses to Plaintiffs' Material Facts by County of Kern. (Cassidy, Terence) (Entered: 12/05/2008)
84 OPPOSITION by Marsial Lopez, Sandra Chavez, Theodore Medina. Opposition to Defendants' Motion to Strike Declaration of Donald Cook (Estuar, Paul) (Entered: 12/05/2008)
85 REPLY by Marsial Lopez, Sandra Chavez, Theodore Medina to RESPONSE. RESPONSE to Defendants' reply to Plaintiffs' Separate Statement (Estuar, Paul) (Entered: 12/05/2008)
86 REPLY by Marsial Lopez, Sandra Chavez, Theodore Medina to RESPONSE. REPLY to Defendants' Opposition to Motion to file Second Amended Complaint (Estuar, Paul) (Entered: 12/05/2008)
87 REPLY by Marsial Lopez, Sandra Chavez, Theodore Medina to RESPONSE to 67 MOTION for SUMMARY JUDGMENT , Plaintiffs Notice of Motion for Partial Summary Judgment And/Or Summary Adjudication,. Plaintiffs Reply to Defendants Opposition to Plaintiffs Motion for Summary Adjudication; Reply Declaration of Donald W. Cook (Cook − OPT OUT ATTORNEY, Donald) (Entered: 12/06/2008)
88 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: MOTION HEARING RE MOTION TO CERTIFY CLASS, DEFENDANTS MOTION FOR SUMMARY JUDGMENT, PLAINTIFF'S MOTION TO STRIKE, PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT held on 12/19/2008, MOTIONS SUBMITTED. The Court to Issue Order Plaintiffs Counsel Barrett Litt, Donald Cook present. Defendants Counsel Jennifer Thurston, Terence Cassidy present. Court Reporter/CD Number: ECRO. (Hernandez, M) (Entered: 12/22/2008)
89 SUPPLEMENT by Marsial Lopez, Sandra Chavez, Theodore Medina re 69 Memorandum in Support of Motion. Submission of Supplemental Authority (Attachments: # 1 Exhibit to Supplemental Authority)(Estuar, Paul) (Entered: 03/10/2009)
90 ORDER Granting Plaintiff's Motion for Leave to File Second Amended Complaint 71 , signed by Magistrate Judge Dennis L. Beck on 3/31/09. (Verduzco, M) (Entered: 03/31/2009)
SERVICE BY MAIL: 90 Order served on Donald W. Cook − OPT OUT ATTORNEY (Verduzco, M) (Entered: 03/31/2009)
91 ORDER GRANTING IN PART AND DENYING IN PART 36 Defendant's Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 63 Defendant's Joint Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 67 Plaintiff's Motion for Summary Judgment signed by Magistrate Judge Dennis L. Beck on 3/31/2009. (Hernandez, M) (Entered: 04/01/2009)
92 ORDER GRANTING 33 Plaintiff's Motion to Certify Class and ORDER DENYING AS MOOT 47 Plaintiff's Motion to Strike. The Court sets a Status Conference for 5/4/2009 at 9:00 am before Magistrate Judge Beck signed by Magistrate Judge Dennis L. Beck on 4/1/2009. (Hernandez, M) (Entered: 04/01/2009)
93 NOTICE of APPEAL by Donny Youngblood, Mack Wimbish as to 91 Order on Motion for Summary Judgment,,,,,. (Attachments: # 1 Civil Appeals Docketing Statement, # 2 Representation Statement)(Thurston, Jennifer) (Entered: 04/28/2009)
94 MOTION for JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND, MOTION to STAY ( Motion Hearing set for 5/29/2009 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L.

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 11 of 15

04/28/2009 04/30/2009
04/30/2009 05/12/2009 05/13/2009
05/15/2009
05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009
05/26/2009
05/26/2009 05/26/2009

Beck.) by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish. (Attachments: # 1 Points and Authorities, # 2 Declaration, # 3 Proposed Order)(Thurston, Jennifer) (Entered: 04/28/2009)
RECEIPT number #CAE100006781 $455.00 fbo Donny Youngblood by Karen Kitchen on 4/28/2009. (Jessen, A) (Entered: 04/28/2009)
96 MINUTE ORDER: (TEXT ENTRY ONLY) Pursuant to agreement by all parties. The Telephonic Status Conference IS RESET from 5/4/2009 to 5/26/2009 at 09:15 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Hernandez, M) (Entered: 04/30/2009)
SERVICE BY MAIL: 96 Minute Order, Reset TELEPHONIC Status Conference − served on Donald W. Cook (Hernandez, M) (Entered: 04/30/2009)
97 TRANSCRIPT REQUEST by Donny Youngblood, Mack Wimbish re 93 Notice of Appeal (Thurston, Jennifer) (Entered: 05/12/2009)
98 APPEAL PROCESSED to Ninth Circuit re 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood. Filed dates for Notice of Appeal *4/28/2009*, Complaint *3/27/2007* and Appealed Order / Judgment *3/31/2009*. Court Reporter: *ECRO*. *Fee Status: Paid on 4/28/2009 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice) (Flores, E) (Entered: 05/13/2009)
99 OPPOSITION by Marsial Lopez, Sandra Chavez, Theodore Medina to 94 MOTION for JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND MOTION to STAY. (Attachments: # 1 Declaration In Support of Opposition)(Estuar, Paul) (Entered: 05/15/2009)
100 MOTION to STAY by County of Kern. Motion Hearing set for 6/26/2009 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cassidy, Terence) (Entered: 05/22/2009)
101 MOTION to STAY by County of Kern. Motion Hearing set for 6/26/2009 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cassidy, Terence) (Entered: 05/22/2009)
102 DECLARATION of Terence J. Cassidy in Support of 101 MOTION to STAY. (Cassidy, Terence) (Entered: 05/22/2009)
103 PROPOSED ORDER Proposed Order. (Cassidy, Terence) (Entered: 05/22/2009)
104 DECLARATION of Terence J. Cassidy in Support of 101 MOTION to STAY. (Cassidy, Terence) (Entered: 05/22/2009)
105 MOTION to STAY by County of Kern. Motion Hearing set for 6/26/2009 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Cassidy, Terence) (Entered: 05/22/2009)
106 REPLY by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish to RESPONSE to 94 MOTION for JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND MOTION to STAY. (Thurston, Jennifer) (Entered: 05/22/2009)
107 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: TELEPHONIC STATUS CONFERENCE held on 5/26/2009. The Court RESETS THE MOTION HEARING as to 94 MOTION for JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND MOTION to STAY: Motion Hearing RESET from 5/29/2009 to 6/26/2009 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. The Court will set a Further Status Conference, if needed. Plaintiffs Counsel Barrett Litt by telephone. Defendants Counsel Jennifer Thurston, Terence Cassidy by telephone. Court Reporter/CD Number: In Chambers. (Hernandez, M) (Entered: 05/26/2009)
108 TRANSCRIPT REQUEST by Donny Youngblood, Mack Wimbish re 93 Notice of Appeal (Thurston, Jennifer) (Entered: 05/26/2009)
109 USCA CASE NUMBER 09−16006 assigned to 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood. (TEXT ENTRY ONLY) (Arellano, S.) (Entered:

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 12 of 15

05/26/2009 05/27/2009 06/12/2009 06/19/2009 06/26/2009
07/01/2009
07/01/2009 07/02/2009 07/06/2009
07/06/2009 07/07/2009 07/07/2009 07/15/2009

05/27/2009)
110 USCA CASE NUMBER 09−16006 for 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood. (Sant Agata, S) (Entered: 05/29/2009)
SERVICE BY MAIL: 109 USCA Case Number served on Donald W. Cook − OPT OUT ATTORNEY. (Arellano, S.) (Entered: 05/27/2009)
111 OPPOSITION by Marsial Lopez, Sandra Chavez, Theodore Medina to 105 MOTION to STAY, 100 MOTION to STAY, 94 MOTION for JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND MOTION to STAY, 101 MOTION to STAY. (Attachments: # 1 Exhibit 1 to Opposition)(Estuar, Paul) (Entered: 06/12/2009)
112 REPLY/RESPONSE to Opposition to Joint Motion to Amend Order, for Certification of Issues and for Stay Pending Appeal under 28 U.S.C. § 1292 (b) by Donny Youngblood, Kern County Sheriff's Department, County of Kern, Mack Wimbish re 111 Opposition to Motion,. (Cassidy, Terence) (Entered: 06/19/2009)
113 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: MOTION HEARING RE MOTION FOR JUDGMENT ON SPECIFIED CLAIMS AND CERTIFICATION OF CLAIMS FOR APPEAL AND MOTION TO STAY held on 6/26/2009, MOTIONS SUBMITTED: The Court to Issue Order. Plaintiffs Counsel Barrett Litt, Paul Estuar by telephone. Defendants Counsel Jennifer Thurston, T Cassidy present. Court Reporter/CD Number: ECRO. (Hernandez, M) (Entered: 06/29/2009)
114 ORDER Regarding Motion For Entry Of Judgment On Specified Claims And Certification Of Claims For Appeal (Document 94 ), signed by Magistrate Judge Dennis L. Beck on 6/30/2009. Defendants' motion for entry of judgment on specified claims and certification of claims for appeal pursuant to Fed.R.Civ.P.54(b) is DENIED. As the Court has declined to enter judgment pursuant to Fed.R.Civ.P.54(b), the corresponding application for stay also is DENIED. (Scrivner, E) (Entered: 07/01/2009)
SERVICE BY MAIL: 114 Order on Motion, served on Donald W. Cook − OPT OUT ATTORNEY. (Scrivner, E) (Entered: 07/01/2009)
115 ORDER of USCA as to 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood; Court Recorder Operator Maribel Verduzco's motion for an extension of time to file the transcripts is granted. The transcripts are due July 6, 2009. (Scrivner, E) (Entered: 07/02/2009)
116 TRANSCRIPT of Proceedings held on 12/19/2008− MOTION HEARING before Magistrate Judge Dennis L. Beck, filed by ECRO Maribel Verduzco, Phone number: 559−499−5928, E−mail: mverduzco@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 7/27/2009. Redacted Transcript Deadline set for 8/6/2009. Release of Transcript Restriction set for 10/5/2009. (Verduzco, M) (Entered: 07/06/2009)
117 CERTIFICATE of RECORD transmitted to Ninth Circuit re 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood. (Lundstrom, T) (Entered: 07/07/2009)
SERVICE BY MAIL: 117 Certificate of Record served on Donald W. Cook − OPT OUT ATTORNEY. (Lundstrom, T) (Entered: 07/07/2009)
SERVICE BY MAIL: 117 Certificate of Record served on Donald W. Cook − OPT OUT ATTORNEY. (Martin, S) (Entered: 07/07/2009)
118 ORDER Regarding Defendants' Joint Motion to Amend Order, for Certification of Issues and for Stay Pending Appeal 100 signed by Magistrate Judge Dennis L. Beck on 7/14/2009. (Sant Agata, S) (Entered: 07/15/2009)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 13 of 15

07/15/2009 10/21/2009
10/30/2009 11/02/2009 11/03/2009 11/06/2009
11/06/2009 11/09/2009 12/08/2009 08/27/2010 01/21/2011 01/22/2011 01/22/2011
01/24/2011
01/25/2011

SERVICE BY MAIL: 118 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Sant Agata, S) (Entered: 07/15/2009)
119 ORDER of USCA as to 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood. The Petition for Permission to Appeal is GRANTED. Within 10 Days of this Order, Petitioners shall Perfect the Appeal Pursuant to Federal Rule of Appellate Procedure 5(d) and shall also move for Consolidation of this Appeal with Appeal No. 09−16006. (Sant Agata, S) (Entered: 10/21/2009)
120 NOTICE of INTERLOCUTORY APPEAL by County of Kern as to 118 Order, 91 Order on Motion for Summary Judgment,,,,,. (Attachments: # 1 Attachment to USDA Docketing Statement, # 2 Representation Statement, # 3 Certificate of Service)(Cassidy, Terence) (Entered: 10/30/2009)
RECEIPT number CAE200021159 for $$455.00 for County of Kern et al from Porter Scott on 11/02/2009. (Gaydosh, J) (Entered: 11/03/2009)
**PLEASE DISREGARD**RECEIPT number CAE200021159 for $455.00 for Appeal Fee from Porter Scott. (Matson, R) Modified on 11/3/2009 (Matson, R). (Entered: 11/03/2009)
121 APPEAL PROCESSED to Ninth Circuit re 120 Notice of Interlocutory Appeal, filed by County of Kern. Filed dates for Notice of Appeal *10/30/2009*, Complaint *3/27/2007* and Appealed Order / Judgment *3/31/2009*. Court Reporter: *ECRO*. *Fee Status: Paid on 11/2/2009 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice) (Hellings, J) (Entered: 11/06/2009)
SERVICE BY MAIL: 121 Appeal Processed to USCA, served on Donald W. Cook − OPT OUT ATTORNEY. (Hellings, J) (Entered: 11/06/2009)
RECEIPT number #CAE200021328 $455.00 by Porter Scott on 11/9/2009 for appeal fee. (Carlos, K) (Entered: 11/09/2009)
122 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Mark Lloyd Nations and Mark Lloyd Nations for Donny Youngblood, Kern County Sheriff's Department, County of Kern and Mack Wimbish, attorney Jennifer Leigh Thurston terminated (Nations, Mark) (Entered: 12/08/2009)
123 NOTICE of CHANGE IN FIRM NAME by Sandra Chavez, Marsial Lopez, Theodore Medina. (Estuar, Paul) (Entered: 08/27/2010)
127 ORDER of USCA as to 120 Notice of Interlocutory Appeal, filed by County of Kern, 93 Notice of Appeal filed by Mack Wimbish, Donny Youngblood; ORDER &MANDATE. (Fahrney, E) (Entered: 01/25/2011)
124 MOTION Preliminary Approval of Class Settlement by Sandra Chavez, Marsial Lopez, Theodore Medina. Motion Hearing set for 2/25/2011 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Litt, Barrett) (Entered: 01/22/2011)
125 NOTICE of Lodging of Preliminary Approval Order by Sandra Chavez, Marsial Lopez, Theodore Medina re 124 MOTION Preliminary Approval of Class Settlement. (Attachments: # 1 Proposed Order Preliminary Approval Order, # 2 Exhibit A to Preliminary Approval Order, # 3 Exhibit B to Preliminary Approval Order, # 4 Exhibit C to Preliminary Approval Order, # 5 Exhibit D to Preliminary Approval Order)(Litt, Barrett) (Entered: 01/22/2011)
126 MINUTE ORDER: (TEXT ENTRY ONLY) THE COURT RESETS THE MOTION HEARING as to 124 Plaintiff's MOTION for Preliminary Approval of Class Settlement : Motion Hearing is advanced from 2/25/2011 to 2/23/2011 at 09:30 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Hernandez, M) (Entered: 01/24/2011)
128 EXHIBIT Supplements re 124 MOTION Preliminary Approval of Class Settlement filed by Marsial Lopez, Sandra Chavez, Theodore Medina. (Attachments: # 1 Exhibit A−Signature Page, # 2 Exhibit D−Signature Page, # 3 Exhibit E−Dismissal Order)(Litt, Barrett) (Entered: 01/25/2011)

Case: 1:07-cv-00474-DLB As of: 04/21/2012 06:27 PM PDT 14 of 15

02/22/2011
02/23/2011 02/23/2011 02/23/2011
05/09/2011 05/09/2011 05/09/2011 05/09/2011 05/09/2011 05/09/2011 06/13/2011 07/13/2011 08/08/2011 08/11/2011 08/16/2011
08/16/2011 08/16/2011
08/16/2011

129 PROPOSED ORDER Amend. Preliminary Approval Order re 125 Notice − Other, 124 MOTION Preliminary Approval of Class Settlement. Attorney Cassidy, Terence John added. (Attachments: # 1 Exhibit Exhibit A to Order, # 2 Exhibit Exhibit B to Order, # 3 Exhibit Exhibit C to Order, # 4 Exhibit Exhbit D to Order, # 5 Exhibit Exhibit E to Order)(Cassidy, Terence) (Entered: 02/22/2011)
130 PRELIMINARY APPROVAL ORDER RE 124 Motion signed by Magistrate Judge Dennis L. Beck on 2/23/2011. (Attachments: # 1 Exhibit)(Lundstrom, T) (Entered: 02/23/2011)
SERVICE BY MAIL: 130 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Lundstrom, T) (Entered: 02/23/2011)
131 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: MOTION HEARING RE PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT held on 2/23/2011, MOTIONS SUBMITTED: The Court to Issue Order. Plaintiffs Counsel Barrett Litt by telephone. Defendants Counsel Terence Cassidy by telephone. Court Reporter/CD Number: ECRO. (Hernandez, M) (Entered: 02/24/2011)
132 MOTION for ATTORNEY FEES by Sandra Chavez, Marsial Lopez, Theodore Medina. Motion Hearing set for 8/26/2011 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Litt, Barrett) (Entered: 05/09/2011)
133 DECLARATION of Barrett S. Litt in SUPPORT OF 132 MOTION for ATTORNEY FEES. (Attachments: # 1 Exhibit 1)(Litt, Barrett) (Entered: 05/09/2011)
134 DECLARATION of Julia C. White in SUPPORT OF 132 MOTION for ATTORNEY FEES. (Litt, Barrett) (Entered: 05/09/2011)
135 DECLARATION of Robert Mann in SUPPORT OF 132 MOTION for ATTORNEY FEES. (Litt, Barrett) (Entered: 05/09/2011)
136 DECLARATION of Donald Cook in SUPPORT OF 132 MOTION for ATTORNEY FEES. (Litt, Barrett) (Entered: 05/09/2011)
137 NOTICE of Lodging Proposed Order by Sandra Chavez, Marsial Lopez, Theodore Medina re 132 MOTION for ATTORNEY FEES. (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 05/09/2011)
138 OBJECTIONS by Sean Robbins. (Sant Agata, S) (Entered: 06/15/2011)
139 OPPOSITION by Plaintiffs Sandra Chavez, Marsial Lopez, Theodore Medina. (Attachments: # 1 Exhibit Gregory McClellan Objection, # 2 Exhibit Sean Robbins Objection)(Litt, Barrett) (Entered: 07/13/2011)
146 NOTICE of Settlement Class Member by Henry Cartwright. (Marrujo, C) (Entered: 08/16/2011)
140 Emergency MOTION/Request For Exception to File a Late Claim Due to Lack of Notice file by Charles Fordjour. (Marrujo, C) (Entered: 08/12/2011)
141 MINUTE ORDER ( Text Only): The 140 Emergency MOTION/Request For Exception to File a Late Claim Due to Lack of Notice will be heard on 8/26/2011 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Figueroa, O) (Entered: 08/16/2011)
SERVICE BY MAIL: 141 Minute Order, served on Donald W. Cook − OPT OUT ATTORNEY and Charles Fordjour. (Figueroa, O) (Entered: 08/16/2011)
142 MOTION Final Approval by Sandra Chavez, Marsial Lopez, Theodore Medina. Motion Hearing set for 8/26/2011 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Attachments: # 1 Proposed Order of Final Approval)(Litt, Barrett) (Entered: 08/16/2011)
143 DECLARATION of Barrett S. Litt in SUPPORT OF 142 MOTION Final Approval. (Litt, Barrett) (Entered: 08/16/2011)

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144 DECLARATION of Julia C. White in SUPPORT OF 142 MOTION Final Approval. (Litt, Barrett) (Entered: 08/16/2011)
145 DECLARATION of Tricia M. Solorzano in SUPPORT OF 142 MOTION Final Approval. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Litt, Barrett) (Entered: 08/16/2011)
147 JOINT STATUS REPORT by Sandra Chavez, Marsial Lopez, Theodore Medina. (Litt, Barrett) (Entered: 08/24/2011)
148 MINUTES (Text Only) for proceedings held before Magistrate Judge Dennis L. Beck: MOTION HEARING held on 8/26/2011. Motions were heard, the Court to issue a written order. (Revised Proposed Order Deadline: 8/29/2011). Plaintiffs Counsel Barrett Litt and Paul Estuar telephonically present. Defendants Counsel Terence Cassidy telephonically present. Court Reporter/CD Number: ECRO. (Figueroa, O) (Entered: 08/26/2011)
149 PROPOSED ORDER re Final Approval. (Litt, Barrett) (Entered: 08/26/2011)
150 PROPOSED ORDER re Attorneys' Fees and Costs. (Litt, Barrett) (Entered: 08/26/2011)
151 FINAL ORDER OF APPROVAL AND SETTLEMENT signed by Magistrate Judge Dennis L. Beck on 8/30/2011. CASE CLOSED. (Jessen, A) (Entered: 08/31/2011)
SERVICE BY MAIL: 151 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Jessen, A) (Entered: 08/31/2011)
152 ORDER awarding class counsel attorneys' fees in the amount of $2,000,000.00 and costs in the amount of $44,393.60; order signed by Magistrate Judge Dennis L. Beck on 9/1/2011. (Rooney, M) (Entered: 09/02/2011)
SERVICE BY MAIL: 152 Order served on Donald W. Cook − OPT OUT ATTORNEY. (Rooney, M) (Entered: 09/02/2011)