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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DEBRA BAGGETT, ET AL., Plaintiffs,
v.
MICHAEL J. ASHE, JR., ET AL., Defendants.

) ) ) ) C.A. No. 11-30223-MAP ) ) )

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT (Dkt. Nos. 156 & 171) August 26, 2014
PONSOR, U.S.D.J. I. INTRODUCTION
Plaintiff Debra Baggett represents a class of 178 former and current inmates of the Western Regional Women’s Correctional Center, who have brought suit under 42 U.S.C. § 1983 against Defendants Michael Ashe, Jr., Hampden County Sheriff, and Patricia Murphy, Assistant Superintendent.1 Plaintiff claims that Defendants’ policy of permitting male officers to videotape female inmates being strip-searched upon transfer to the segregation unit violated the Fourth Amendment.

1 Though this case is a class action, the court, for simplicity’s sake, refers to Plaintiff in the singular throughout this memorandum.

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Defendants have moved for summary judgment, (Dkt. No. 156), and Plaintiff has cross-moved for summary judgment or, in the alternative, for partial summary judgment on the legal issue of whether any legitimate, penological interest justified assigning males officers to videotape the strip searches, (Dkt. No. 171). Plaintiff presents two theories in support of judgment in her favor. First, she contends that the policy of permitting male guards to be present to videotape the strip searches –- even if they somehow refrained from actually viewing the inmates while performing the videotaping –- violated the Constitution. The court agrees that this policy violated the class members’ constitutional rights and that no legitimate, penological interest justified it. Moreover, Defendants are not entitled to the protection of qualified immunity for this violation.
Given this, it will be unnecessary for the court to address in detail Plaintiff’s second contention, that the policy foreseeably resulted in male officers actually viewing strip searches of female inmates and that such viewing constituted a violation Plaintiff’s constitutional rights under clearly established law. Plaintiff is correct that at the relevant time period, clear authority established that, if such viewing did
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occur in a manner that was more than incidental or inadvertent, it violated the Constitution and Defendants would not be shielded by qualified immunity. If the court needed to address this second theory of recovery, however, a trial would be necessary in order to determine whether actual viewing, as opposed to videotaping without looking, occurred. It would also be necessary to determine whether Defendants were legally responsible for the actual viewing.
In sum, because Plaintiff will prevail on her predominant claim, the court will deny Defendants’ motion for summary judgment and allow Plaintiff’s motion on the issue of liability. Further proceedings will be necessary to determine the appropriate potential equitable relief and monetary damages.
II. FACTUAL BACKGROUND2 Plaintiff, Debra Baggett, was a prisoner at the Western Massachusetts Regional Women’s Correctional Center (“WCC”) from September 5, 2008, through September 12, 2008, and again from October 2, 2008, through January 28, 2010. She represents a class of
2 Unless otherwise noted, the facts are drawn from Defendants’ Statement of Material Facts (Dkt. No. 160), Plaintiff’s Statement of Material Facts (Dkt. No. 173), Plaintiff’s Counter Statement of Material Facts (Dkt. No. 174), and Defendants’ Counter Statement of Material Facts (Dkt. No. 195), along with the documents referenced therein.
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approximately 178 former and current inmates of the WCC who, upon transfer to the segregation unit, were subjected to a strip search videotaped by male correctional officers. As noted, Defendants are Michael J. Ashe, Jr., the Sheriff of Hampden County, and Patricia Murphy, Assistant Superintendent in charge of the WCC.
The WCC is an all-female facility that houses detainees and sentenced prisoners from the four western counties of Massachusetts. If a prisoner presented as a suicide risk, committed certain disciplinary infractions, or needed to be in protective custody, she was transferred to the segregation unit to separate her from the general population.
The WCC maintained a set of policies that governed the transfer of prisoners into that unit, specifically Policy and Procedure (“P&P”) 3.1.7. A transition team headed by Defendant Murphy wrote the policies, though Defendants Ashe and Murphy discussed them while they were being drafted. There is no dispute that Ashe and Murphy were responsible for the policy. During the process, the team also relied on an expert consultant, John Milosovich. The policy was updated nearly every year, though its central tenants remained the same. (Murphy Aff. (Defs.’ Ex. D), Dkt. No 164, Exs. 1-6.)
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The policy adopted by Defendants required, at a minimum, four officers to move an inmate to segregation. The officers effectuated the move by cuffing the inmate’s wrists, shackling her ankles, conducting a pat search, and leading her into the unit. If an inmate were not compliant, additional officers would assist. Any inmate transferred into the unit was subject to a strip and body cavity search. This required the inmate to run her fingers through her hair, remove dentures if she wore them, raise both arms, lift her breasts, lift her stomach for visual inspection if she had a large mid-section, and remove any tampon or pad if she were menstruating. She was then required to turn around, bend over, spread her buttocks, and cough.
The policy also specified the location of the strip searches. They would occur either in the individual segregation unit itself or in the segregation intake room. If the search occurred in the individual cell, at least two female officers would remain with the prisoner during the search. If the supervisor were female, she would also remain in the cell. However, if the supervisor were male, the policy dictated that he “remain[] in the cell but stand[] in the doorway.” (Murphy Aff. (Defs.’ Ex. D), Dkt. No 164, Ex. 1.)
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Alternatively, if the search occurred in the intake room, the entire transfer team would remain in the room.
One officer was responsible for videotaping the transfer from the beginning of the move through, and including, the strip search. The filming officer was expected to stand just outside of the cell and point the camera in the direction of the inmate. From 2007 to 2010, the policy stated that if a male officer held the camera, he was to “stand[] outside the cell facing the Dayroom [away from the cell] with the camera pointing inside the cell and record[ing] the prisoner from the neck up.” (Murphy Aff. (Defs.’ Ex. D), Dkt. No 164, Exs. 1 & 2.) From 2010 to 2012, the policy required “the officer operating the video camera, if male, [to] stand[] outside the cell with the camera pointing inside the cell and record[ing] the prisoner.” (Murphy Aff. (Defs.’ Ex. D), Dkt. No 164, Exs. 3-4.) Since March 2012, the policy mandated that male officers operating the camera stand “outside the cell and position[] the camera on the prisoner from the neck up . . . then turn[] his head to the side to afford the prisoner as much privacy as possible.” (Murphy Aff. (Defs.’ Ex. D), Dkt. No 164, Ex. 5.)
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In other words, male officers filming the strip search were required under the policy to conduct the filming while attempting to avoid looking at the subject being filmed and, at the same time, taking care to film the unseen inmate only from the neck up. According to Plaintiff, when this section of the policy was being drafted, Mr. Milosovich questioned the need for the videotaping at all and expressed doubts that male guards, as a practical matter, could consistently follow the very awkward procedure as it was prescribed. (Dkt. No. 175, Ex. 28 at 15 (stating “how can you be sure that [the camera] will stay from the neck up . . . Suggest someone check to make sure a strip search can be video taped at all”).)
Since September 15, 2008, a male guard has held the camera during 274 strip searches. For 90% of these searches, two or more female guards were in the cell, and during 58%, three or more females were present. During that period, Defendants employed on the security staff roughly 31 female officers and 49 to 54 male officers. According to Plaintiff, several women complained to WCC staff about the cross-sex videotaping policy.
In May 2010, Plaintiff’s counsel sent a letter to Defendants, informing them that he believed this policy
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was unconstitutional. Around the same time, Defendants altered P&P 3.1.7 to restrict the circumstances under which male officers could operate the camera. Female officers were required to do the videotaping unless “impracticable.” (Murphy Aff. ¶ 110 (Defs.’ Ex. D), Dkt. No. 164, Ex. 3.) Between May 2010 and September 2011, male officers held the camera 26% of the time. Since September 2011, when this suit was filed, males have held the camera only 2.5% of the time. From January 1, 2013 to July 31, 2013, a male held the camera only one time out of 96 total transfers.
Though it is undisputed that male officers operated the cameras, the parties vigorously dispute whether males actually viewed the female inmates during the searches and, if they did, whether such viewing was more than incidental or inadvertent. Plaintiff relies on the testimony of five members of the class who discussed their experiences. They described their observations of male officers viewing them during strip searches. As Plaintiff herself testified, “Sometimes I could see their eyes and . . . sometimes the camera was obscuring the face but I almost always could see their face.” (Baggett Dep. 279:13-19, Dkt. No. 175, Ex. 13 at 2.) She further said, “They were looking at me, at my direction, their faces were pointed and their
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postures and everything were pointed directly at me.” (Id. 281:17-22.) Plaintiff also provides testimony from a former WCC corrections officer who claimed that male officers would simply “stand off to the side and just watch the viewfinder.” (Matlasz Dep. 53:11-15, Dkt. No. 175, Ex. 5 at 4.)
Moreover, Plaintiff points to the videos themselves, 68% of which show some or all of the women’s genitals, buttocks, or breasts, and 82% of which show some portion of the women below the neck. Based upon the steadiness of the camera and the footage of the inmates’ bodies, she believes that a male officer had to be facing the inmates (or watching through the viewfinder) to keep the camera as still as it was and trained on the correct area in the cell.
Defendants, meanwhile, provide testimony from 11 former and current officers who state that they never witnessed a camera operator actually viewing a search. More broadly, Defendants believe that Plaintiff’s evidence is insufficient to establish anything more than incidental viewing.
On September 15, 2011, Plaintiff filed this onecount complaint against Defendants alleging a violation of 42 U.S.C. § 1983. This court, on May 23, 2013, certified a class of “approximately 178 former and
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current WCC inmates who were videotaped by male correctional officers during strip searches.” (Dkt. No. 86.)
On February 21, 2014, Defendants filed their Motion for Summary Judgment (Dkt. No. 156), and Plaintiff cross-filed on March 19, 2014 (Dkt. No. 171). As noted, Plaintiff also moved, in the alternative, for partial summary judgment on the issue of whether any true emergency or other legitimate, penological interest justified assigning male officers to videotape the strip searches. On April 22, 2014, the court heard argument on the motions and took the matter under advisement.
III. DISCUSSION On summary judgment, the facts and all reasonable inferences that might be drawn from them are viewed in the light most favorable to the non-moving party. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 396 F.3d 584, 588 (1st Cir. 2004). When addressing cross-motions for summary judgment, “the court must consider each motion separately, drawing inferences against each movant in turn.” Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997). Summary judgment is appropriate if no
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genuine dispute of fact exists and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
Plaintiff only offers one count in this lawsuit –a violation of § 1983. To succeed on this claim, “the challenged conduct must be attributable to a person acting under color of state law . . . [and] the conduct must have worked a denial of rights secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997). The law also “requires the plaintiff to prove not only a deprivation of federal right, but also that the defendant’s conduct was a cause in fact of the alleged deprivation.” Id. at 1062.
The first element is undisputedly satisfied in this case. Defendants were acting in their official capacities when they created the challenged policy. Nor is causation in doubt; they were directly responsible for the policy’s enactment. Plaintiff’s claim thus turns on whether Defendants’ policy violated the Constitution.
Plaintiff, as noted in the introduction, presents two theories. First, she contends that the policy of permitting cross-sex videotaping of strip searches --
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irrespective of whether any viewing of the inmate actually occurred during the taping –- violated the Constitution. Alternatively, Plaintiff says, the videotaping violated the Fourth Amendment because it in fact did -- regularly and over extended periods of time -- result in male guards viewing female inmates during the strip searches. Each theory will be addressed below. A. Was the Policy of Permitting Cross-Sex Videotaping,
Regardless of Viewing, Unconstitutional? Plaintiff’s initial theory is that the searches required by the policy permitting cross-sex videotaping violated the class members’ Fourth Amendment rights, even if the male officer doing the videotaping was able somehow to avert his eyes while using the camera. It must be conceded that the fact scenario posited by this theory is difficult to conjure up. Nevertheless, this (Defendants say) is what occurred, and a fair analysis of this first, broader theory of recovery must assume, in the light most favorable to Defendants, that any videotaping by male guards occurred without the male actually looking at the female inmate he was filming. To tackle the argument, two questions must be addressed: first, did the policy generate unconstitutional searches of the class members, and
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second, if it did, are Defendants entitled to the
protection of qualified immunity?3
1. Was there a constitutional violation?
The Fourth Amendment broadly protects “against
unreasonable searches and seizures.” U.S. Const.
amend. IV. In the narrow context of searches in prison
facilities, two interwoven strands of cases are
relevant. The first, Bell v. Wolfish, 441 U.S. 520
(1978), provides guidance for courts tasked with
determining the reasonableness of a custodial search.
The second, Turner v. Safley, 482 U.S. 78 (1978),
balances an inmate’s rights against the legitimate
needs of prison facilities. Though the analyses
overlap to some degree, the cases will be discussed
separately for the sake of clarity.
3 Defendants believe that Plaintiff’s case is a “facial” challenge to the constitutionality of the policy and, thus, Plaintiff can only succeed if she shows that the policy is unconstitutional in every conceivable application. See U.S. v. Salerno, 481 U.S. 739 (1987)(noting that a facial challenge must establish “that no set of circumstances exists under which the Act would be valid”). Though difficult to apply at times, a distinction has emerged between “facial” challenges –- which broadly attack a law or policy regardless of the way it is enacted –- and “as applied” challenges –- those that arise from a specific dispute about a particular way in which a law is implemented. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). Plaintiff’s challenge here is brought on behalf of a class of inmates who believe their rights were violated by the specific manner in which Defendants applied the policy to them. It thus arises from a concrete dispute and fits neatly into the “as applied” category.
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a. Bell v. Wolfish In Bell, the Supreme Court considered the reasonableness of strip searches conducted on pre-trial detainees in state custody. Bell, 441 U.S. at 558. The Court upheld the policy over a Fourth Amendment challenge and, in doing so, identified a number of factors to consider when assessing the reasonableness of these searches. The elements were: (1) the scope of the search; (2) the manner in which it was conducted; (3) the justification for it; and (4) the place where it was conducted. Id. at 559. To evaluate the policy here, the court must weigh the Bell factors. The first consideration -- the actual scope of the search -- is not the subject of any substantial dispute in the circumstances of this case. The parties agree that a strip search during a transfer to a segregation unit is permissible. See Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983). Moreover, the actual strip searches were completed within a reasonable period of time and were no more intrusive than other, constitutionally permissible searches. Id. The crux of the challenge is the manner in which the searches were conducted -- that is, with male officers present during the strip searches to videotape the female inmates. In Cookish v. Powell, the First
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Circuit considered whether a strip search of a male inmate “conducted within the visual vantage point of female correctional officers” violated the Fourth Amendment. 945 F.2d 441, 442 n.1 (1st Cir. 1991). The search in that case occurred in the immediate aftermath of a prison riot. Id. at 444-45. Though the court ultimately found that the defendants in Cookish were protected by qualified immunity, it described the state of the law as follows:
(1) inadvertent, occasional, casual, and/or restricted observations of an inmate's naked body by a guard of the opposite sex did not violate the Fourth Amendment and (2) if the observation was other than inadvertent, occasional, casual, and/or restricted, such observation would (in all likelihood) violate the Fourth Amendment, except in an emergency condition. Id. at 447. Cookish recognized that, despite their confinement, inmates have some limited expectation of privacy. That right “is violated when guards of the opposite sex regularly observe him/her engaged in personal activities, such as undressing, showering, and using the toilet.” Id. at 446; see also Burns v. Loranger, 907 F.2d 233 (1st Cir. 1990); Bonitz v. Fair, 804 F.2d 164 (1st Cir. 1986), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124 (1st Cir. 1988).
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Since Cookish, the First Circuit has addressed a number of challenges to custodial strip searches. The Court of Appeals, when considering the reasonableness of such searches, has consistently recognized the risk of a constitutional violation posed by the presence of custodial staff of the opposite sex. For example, in Roberts v. State of Rhode Island, the First Circuit upheld a strip search policy, in part because “the policy requires the search to be conducted by officers of the same sex as the inmate.” 239 F.3d 107, 112 (1st Cir. 2001). Two years later, the First Circuit again upheld a similar policy because “[i]t was done in a private area, by a single officer of the same gender, and without physical contact.” Wood v. Hanock Cnty. Sheriff’s Dep’t, 354 F.3d 57, 69 (1st Cir. 2003).
In 2004, the court expanded its analysis by not merely referencing the gender of the individual conducting the search, but broadening the focus to include the environment of the search itself. In approving the constitutional legitimacy of the search in United States v. Cofield, the court noted that “the officers did not require [the plaintiff] to assume humiliating poses, [or to] expose himself in an unnecessarily public place or to members of the opposite sex.” 391 F.3d 334, 337 (1st Cir. 2004).
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Defendants’ central contention is that these cases only proscribe actual viewing by a guard of the opposite sex. The Constitution, in Defendants’ view, does not restrict the mere nearby presence of a male officer during a strip search of a female inmate, even if he is operating a video camera, so long as his eyes are averted.
Defendants read the First Circuit case law too narrowly. Underpinning these authorities is the understandable implication that even the nearby presence of an individual of the opposite sex during a strip search can be, in itself, a deeply humiliating experience. No inmate placed in such a vulnerable and exposed position should have to rely, or comfortably would rely, on the scrupulousness of an officer of the opposite sex turning his or her head as a safeguard to the inmate’s privacy and basic dignity.
Any other conclusion would defy human nature. Even if an officer, standing a few feet away and pointing a video camera at an inmate of the opposite sex, did in fact avert his or her eyes from the scene entirely (as perhaps many, or -– as Defendants contend -- all do), the humiliating sense of exposure arising in this situation would be virtually as extreme, from the viewpoint of the inmate, as it would be if the inmate
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knew the officer were actually looking. It is possible some inmates might not care, but for the vast majority of inmates the scene would reasonably be experienced as painfully degrading. To suggest otherwise is to ignore the inborn sense of privacy most human beings harbor from childhood through the end of life.
Moreover, in this case -- as Defendant Ashe himself noted -- utilizing a female officer rather than a male unquestionably would add “to the dignity and worth and privacy” of the individual inmate. (Ashe Dep. 110:20111:4, Dkt. No. 175 at 44-45, Ex. 6.)
Admittedly, the explicit holding of Cookish is that it is a violation of the Constitution, except in very limited circumstances, when an officer of the opposite sex actually views a strip search. The case does not suggest, however, that the nearby presence of an officer of the opposite sex pointing a video camera at an inmate during a strip search, and the forced reliance of that inmate on the officer’s strict compliance with a procedure requiring him or her to look away during the filming, would satisfy the Constitution. Cofield’s use of the word “exposure” reveals the core value being protected, which is the inmate’s privacy and basic dignity, experienced from the inmate’s point of view. The constitutionality of
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the search does not hinge solely on what the officer of the opposite sex happens to see but, instead, on the degradingly vulnerable position the inmate is forcibly placed in.
Here, the male official is present during the entire transition to segregation and the subsequent strip search. It is undisputed that the female inmate is fully aware that a male guard is videotaping her. Indeed, if she looks, she can see him holding the camera in her direct line of sight from a few feet away. The applicable procedure then requires the female inmate to strip naked and manipulate her body while in the direct presence of the male guard videotaping her. The inmate will be ordered to lift her breasts, spread her legs, bend over, and spread her buttocks. For the female inmate, the knowledge that the nearby male is obliged to look away (if, indeed, she is aware of this restriction) cannot, to any significant degree, minimize the extreme level of exposure she experiences. The fact that the male officer, while operating the video camera, may be turned to one side or have his back turned will do little, for most female inmates, to diminish the sense of embarrassment, humiliation, and vulnerability that she must inevitably feel.
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Ultimately then, the constitutional violation here arises from the male video operator’s close presence while the female inmate is required “not only to strip naked in front of a stranger, but also to expose the most private areas of her body.” Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997). For the reasons stated, the conduct of these searches breached the constitutional boundary to such a degree that, even if the remaining two Bell factors did not favor Plaintiff’s position, the policy would still be a violation of the Fourth Amendment.4 A review of these factors, however, reveals that, for the most part, they favor Plaintiff.
The next factor identified by the Supreme Court is Defendants’ justification for the policy. In their initial memorandum (Dkt. No. 159), Defendants noted that 103 C.M.R. § 924.06(3)(f) authorized strip searches upon an inmate’s transfer into segregation. Based on this, they argued, the policy was justified.
The problem with this initial argument is that the identified regulation only supports the policy insofar as it calls for the strip searches. No one, not even
4 It is well established that an emergency situation may justify a search that would otherwise be unconstitutional. As Cookish makes clear, extenuating circumstances may require a male to videotape the search. 945 F.2d at 447. Here however, with only one exception, Defendants do not contend that an emergency ever justified the male presence.
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Plaintiff, disputes the propriety of strip searches during transfers to segregation, per se. As invasive as they necessarily are, these searches do not violate the Constitution and, indeed, constitute an appropriate safeguard in the custodial environment. The regulation, however, is silent as to the practice of videotaping these searches and, more importantly, as to the permissibility of an individual of the opposite sex holding the camera.
In their reply memorandum, (Dkt. No. 193), Defendants offer a number of practical justifications for the videotaping policy. Again, however, while videotaping strip searches may, to some extent, be controversial, Plaintiff does not take the position that videotaping itself violates the Constitution. The procedure undoubtedly has advantages. It provides an objective record of the transition into segregation, enhances professionalism, and deters both misconduct and false accusations of misconduct. None of these purported justifications, however, covers the use of male staff to videotape female inmates.
Only one asserted justification bears directly on the issue of the officer’s gender. The ability to utilize a male officer to videotape females during strip searches, Defendants contend, provides
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flexibility during potentially urgent situations. A transfer to segregation can be fraught with risk; serious problems can arise quickly and unpredictably. The possible use of a male guard to handle videotaping -- a male instructed to look away while conducting the taping -- helps to ensure the safety and security of staff and inmates.
To buttress this point, Defendants point to one event in 2013 where an immediate need arose to transfer an inmate to segregation, but no female officer was available to handle the videotaping. The flexibility of the policy permitted a male officer to hold the camera and complete the transfer promptly. This prevented a potentially dangerous situation from spinning out of control.5
The shortcoming in this legal argument is that Plaintiff does not dispute the constitutional legitimacy of cross-sex videotaping in a true emergency. All the case law recognizes this regrettable but necessary contingency. Moreover, as a factual matter, the record provides no support for the suggestion that, at least prior to 2013, videotaping of strip searches by male officers was limited to urgent
5 Defendants offer additional justifications under the Supreme Court’s Turner decision, which are addressed below.
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situations. In fact, the record confirms that female officers were not only available but actually present during the vast majority of strip searches. The evidence also demonstrates that Defendants employed female officers at a roughly similar rate as male officers. Critically, no evidence in this record suggests that the lack of a female officer would have required postponement of a transfer, or generated any risk, in any but the rarest of circumstances.
Moreover, if male guards were potentially needed in emergency situations to effectuate swift moves –- a situation Plaintiff concedes might require cross-sex videotaping –- this contingency still would not justify the challenged policy.6 The 2013 event described by Defendants, one that occurred well after Defendants altered their policy, illustrated the feasibility of a narrowly crafted exception covering a truly urgent situation. It does not, however, provide support for a carte blanche license to use male guards regularly to videotape strip searches of female inmates.
6 Defendants take issue with Plaintiff’s narrow definition of an emergency. The court need not address this disagreement since it is undisputed that no emergency, however defined, precipitated the searches at issue in this case.
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In sum, Defendants’ attempt to offer justifications for their policy is flatly inadequate to provide a bandage for its constitutional deficiencies.
The final Bell factor is the location of the searches. The policy, as noted, provides two different locations where the searches can occur, the segregation unit itself and the intake area. Plaintiff contends that both areas are too public; Defendants disagree. The importance of this issue may be secondary compared to the gender issue and, in any event, the parties’ disagreement raises an issue of fact. Notably, even assuming Defendants are correct, it would still not save the policy given the unreasonableness of the manner of the searches, and thus the disagreement does not implicate any material fact precluding entry of summary judgment.
To summarize, examination of the Bell factors establishes that the strip searches of class members in this case, to the extent they occurred with male officers in the immediate vicinity conducting videotaping, were unreasonable regardless of whether the officers actually viewed the inmates. Plaintiff’s Fourth Amendment rights were violated by the mere presence of a male officer nearby conducting the videotaping during her strip search. Since Plaintiff’s
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rights were violated, the analysis shifts to the Turner case.
b. Turner v. Safley Although the policy violates Plaintiff’s Fourth Amendment rights, that finding must still survive the Turner analysis. At issue in that case was, inter alia, the permissibility of restricting an inmate’s right to marry. The Court’s holding, broad in nature, is relevant here. In determining the permissibility of a prison regulation, the Court said, “[W]hen a prison regulation impinges on an inmates’ constitutional rights, the regulation is valid if reasonably related to legitimate penological interests.” Turner, 42 U.S. at 89. Turner provided four factors to be weighed in making that determination: (1) whether there exists a valid, rational connection between the regulation and the governmental interest; (2) whether “there are alternative means of exercising the right that remain open to prison inmates”; (3) the impact the demanded accommodation would have on the facility, staff, and inmates; and (4) the availability or absence of ready alternatives to the complained of policy. Id. Defendants believe that each factor illuminates a reasonable relationship between their policy and a
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valid, penological interest. Plaintiff, meanwhile, contends that Defendants have the weaker argument on each factor and that she is, at a minimum, entitled to partial summary judgment on the question of whether any emergency or legitimate interest justified the searches.
As to the first factor -- the connection between the policy and the goal -- Defendants reiterate their argument that videotaping the searches is justified and that male guards are a critical component to carrying out that policy. Moreover, they assert that the use of males permits flexibility in staffing and ensures that the WCC can provide equal employment opportunities.
These arguments are unpersuasive. Though videotaping itself may be appropriate, nothing supports the conclusion that male guards need to be utilized to conduct the videotaping outside of emergency situations. Indeed, since this litigation began, Defendants have essentially adopted a policy requiring only female guards to videotape the searches and have not encountered any problems.
Defendants’ employment-related arguments rely solely on speculation. The record offers no examples of employees complaining about their assignments; no data evidences staffing problems. Nothing in the
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record suggests that permitting males routinely to videotape strip searches enhanced employment opportunities for anyone. Therefore, Defendants have failed to establish a valid connection between the policy and their purported goals.
The second Turner factor, the existence of an alternative to exercise the identified constitutional right -- in this case, the right to be free from an unreasonable search -- favors Plaintiff. Defendants have conceded that their policy left no room for an alternative method to exercise this right. Bull v. San Francisco, 595 F.3d 964, 973 n.9 (9th Cir. 2010)(stating that the right to be free from an unreasonable search “is not a right susceptible to exercise by alternative means”).
With respect to the third Turner factor –- the impact the demanded accommodation would have on the facility, staff, and inmates –- Defendants repeat their argument that, in order to avoid compromising the operation of their facility, their only feasible option was to restrict male guards from viewing female inmates during strip searches, not from videotaping them. This rule, they point out, was already in place at the time this lawsuit was filed and was sufficient. Any other accommodation, such as excluding males entirely from
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videotaping strip searches (except in an emergency or otherwise urgent situation), would, Defendants argue, have reduced Defendants’ flexibility and undermined security.
The flaw in this argument, as this memorandum has already noted, is that the record offers no support for Defendants’ contention that utilizing female guards for videotaping strip searches decreased Defendants’ ability to effectuate transfers to segregation in nonurgent situations. On the contrary, Defendants’ current policy of strictly limiting the presence of males during strip searches has shown that the overwhelming majority of transfers to segregation can be managed easily within constitutional boundaries. Plaintiff’s proffered alternative to the policy as it existed at the time this lawsuit was filed was clearly a feasible accommodation that minimally burdened the facility, staff, and inmates.
On the final Turner factor -- the availability and benefits of ready alternatives –- Defendants argue that no available alternative would have provided the same benefits as the challenged policy. Defendants itemize a number of options they consider inferior to videotaping: an audio recording, not utilizing a camera, using a tripod, or using a ceiling camera.
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They believe that each alternative would present serious problems. An inmate could say something false on an audio recording; an emergency might arise that would need to be documented on camera; the tripod could be used as a weapon; a ceiling camera would actually be more invasive. In sum, a video camera held by a person, Defendants say, was the only option that, as a practical matter, accomplished Defendants’ goals.
Defendants’ contentions may all very well be true, but they miss the point. At the risk of repetition, this dispute is not about the propriety of videotaping the searches per se. It is about who should be holding the camera. Since the only real alternative is to require female guards to hold the camera except in cases of emergencies, and Defendants have failed to show why this would not be feasible –- indeed, such a policy appears to have effectively been adopted at this point –- the court must conclude that the final Turner factor manifestly favors Plaintiff.
As a final plea, Defendants suggest that deference under Turner is particularly appropriate here for a number of reasons. First, Defendants utilized an expert when drafting the regulations to ensure that they were legally permissible. Second the WCC has applied for and received accreditation from the
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American Correctional Association, which did a complete review of every policy and procedure, including the policy governing videotaping. Finally, the Massachusetts Department of Corrections audited the WCC twice a year, and no issues respecting the policy were ever flagged.
None of these reasons justifies deference to the particular policy at issue. First, use of an expert, though prudent, cannot innoculate an unconstitutional policy. Here, in any event, a particular irony adheres to this argument since Defendants’ expert explicitly warned that the policy presented both practical and legal problems. (Dkt. No. 175, Ex. 28 at 15.)
Defendants’ other arguments essentially assert that since no one who reviewed the policy found a problem with it, no problem existed. Again, while the use of review by outside entities reflected prudence and professionalism on the part of Defendants, the fact that these entities did not condemn the videotaping policy obviously cannot, ipso facto, render it constitutional.
In sum, no legitimate penological interest justified the regular practice of using male officers to videotape female inmates while they were being strip searched, even assuming the officers respected the
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policy requirement to avert their eyes while operating the camera. Moreover, nothing in the record indicates that any emergency situation ever required the use of male officers to handle videotaping. Since the policy violated the Fourth Amendment rights of the class members, and since Turner does not save Defendants, the policy as applied to class members was unconstitutional.
2. Qualified Immunity Qualified immunity protects officials performing discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable officer should have known. Wilson v. Layne, 526 U.S. 603, 609 (1999). Qualified immunity is not appropriate where (1) an official violated a constitutional or statutory right, and (2) the right was “clearly established” at the time the impermissible conduct occurred. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011), citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Defendants contend that qualified immunity is appropriate here for two reasons. First, the legal question at the heart of this case is obscure, and no
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clearly established law existed at the time of the violation. If anything, Defendants say, the law supported their approach since courts have consistently upheld the use of video cameras to record searches. See, e.g., Powell v. Cusimano, 326 F. Supp. 2d 322, 335 (D. Conn. 2004). Second, Defendants say, they strived to ensure that the policy complied with the Constitution –- for example, they hired an expert and had the procedures audited –- and therefore acted reasonably in concluding that it was permissible.
Though Defendants’ argument has some traction, it is ultimately unpersuasive. They essentially concede that, at the relevant time period, the Constitution clearly prohibited males from conducting strip searches of female inmates, or from viewing the strip searches, except where such viewing was inadvertent or in emergency situations. These cases, they argue, were insufficient to put them on notice that the practice of having a male officer videotape a strip search of a female inmate without looking at the inmate violated the inmate’s rights.
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On the question of when a constitutional right is clearly established, the Supreme Court has emphasized that “a case directly on point” is not required. Ashcroft, 131 S.Ct. at 2083. Instead, the inquiry is whether the law “placed the statutory or constitutional question beyond debate.”
At the time of this constitutional violation, clearly established law prohibited a male officer from viewing a female inmate during a strip search. Cookish, 945 F.2d at 447. It was also plainly unconstitutional to require a female inmate to expose herself, particularly to the extreme degree required during a strip search, in the presence of a male officer. Cofield, 391 F.3d at 337. Given these cases, any reasonable official would have recognized the unreasonableness of requiring a female inmate to strip in the presence of a male officer holding a video camera and pointing it at her. The unconstitutionality of such a policy was, quite simply, “a foregone conclusion.” Bonitz, 804 F.2d at 173 n.10. Given the clarity of the law at the time the policy was put in place, a reasonable official would have been properly
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on notice that the policy would inevitably result in an unconstitutional search.
Moreover, even if the state of the law were ambiguous –- which it was not –- this policy was so clearly “antithetical to human dignity” that qualified immunity would still be inappropriate. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Any reasonable official viewing the policy would have concluded that it had the potential to humiliate and demean the female inmates. However sincere Defendants’ attempts to comply with the law may have been, it was unreasonable for them to neglect the obvious ramifications of their policy.
Ultimately, a reasonable individual in Defendants’ position could not have concluded that permitting male officers to videotape female inmates during strip searches –- even if the officers looked away –- was constitutional. Therefore, Defendants are not entitled to the protections of qualified immunity, and Plaintiff is entitled to judgment as a matter of law. B. Was the Policy Unconstitutional Because It
Foreseeably Led to Cross-Sex Viewing of Strip Searches?
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The court’s ruling on Plaintiff’s first theory makes extended discussion of her second theory unnecessary. Plaintiff asserts that the videotaping policy was also unconstitutional because it in fact inevitably led to male officers actually viewing, in a manner that was not merely incidental or inadvertent, strip searches of female inmates in non-emergency situations.
As a legal matter, if Plaintiff’s assertions were shown to be true –- i.e., male officers regularly viewed female inmates during strip searches –- she would be entitled to judgment in her favor. Cookish and its progeny, as discussed, undisputedly hold that in non-emergency situations cross-sex viewing that is more than incidental or inadvertent violates the Constitution. Cookish, 945 F.2d at 447. Qualified immunity would certainly not protect Defendants given this case law.
Summary judgment, however, would not be available on this alternate theory on the current record of this case, based on two disputed issues of fact: did the policy result in actual viewing that was more than
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Case 3:11-cv-30223-MAP Document 219 Filed 08/26/14 Page 36 of 38
incidental or inadvertent, and, if so, were these specific Defendants legally responsible for the viewing? Plaintiff relies on the testimony of five class members, the videos themselves, and testimony by a former WCC officer to support her position. Defendants, in turn, provide testimony from eleven officers to the effect that male guards handling videotaping did not routinely view female inmates during searches. Moreover, Defendants argue, any viewing that did occur was incidental and therefore insufficient to create a pattern or practice of unconstitutional conduct for which these Defendants would be liable.
On Plaintiff’s second theory, if this case went to trial, Defendants might have their work cut out for them. The notion that a male officer could successfully perform the job of videotaping a female inmate’s strip search (and keep the camera focused on the neck up as the policy required) without actually observing the search seems, to put it mildly, dubious. The practical demands of the task, keeping the camera steady and trained on the correct location in the cell,
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would make this argument a hard sell to a jury. Of course, as the court has already noted, the degrading exposure of the female inmate placed in this position should have made the constitutional violation inherent in this practice manifest to Defendants. Nevertheless, to the extent that Plaintiff offers actual viewing as a basis for her claim of a violation of § 1983, the record contains sufficiently documented disputed issues of fact to render summary judgment inappropriate on this alternate theory.
IV. CONCLUSION Managing a correctional facility is a uniquely difficult task, and Defendant Sheriff Michael J. Ashe Jr., has a well deserved reputation not only for highly competent administration but for sensitivity to the rights and the welfare of the inmates he is responsible for. The hallmark of his long tenure as Sheriff has been scrupulous attention to the dignity of every inmate, consistent with the operational requirements of the particular facility. Unfortunately, in this case a misjudgment occurred resulting in a policy that clearly transgressed the
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Constitution and injured the plaintiff class. For this reason, Defendants’ Motion for Summary Judgment (Dkt. No. 156) is hereby DENIED, and Plaintiffs’ Motion for Summary Judgment (Dkt. No. 171) is hereby ALLOWED on the issue of liability.
By September 9, 2014, Plaintiff shall submit a proposed schedule to address the questions of potential equitable relief and monetary damages. If Plaintiff’s proposal is not assented to, Defendants may submit their counter-proposal by September 23, 2014.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

DEBRA BAGGETT and

)

APRIL MARLBOROUGH on behalf of themselves )

and others similarly situated,

)

Plaintiffs,

)

)

v.

)

)

MICHAEL J. ASHE, JR., and

)

PATRICIA MURPHY, in their individual capacities, )

Defendants

)

__________________________________________)

Civil Action No. 11-

COMPLAINT

I. INTRODUCTION

1. This is a civil rights class action for money damages against Hampden County Sheriff

Michael J. Ashe, Jr., and Assistant Superintendent Patricia Murphy for permitting male guards at the

Western Massachusetts Regional Women’s Correctional Center (“WCC”) to view and videotape

strip-searches of women inmates. Women at the WCC who cannot remain in the general prison

population for mental health or disciplinary reasons are taken to the Segregation Unit. With four or

more officers present, the inmate must take off all her clothes and perform a series of actions: she

must lean forward, lift her arms, lift her breasts and, if large, her stomach, turn around, bend over,

spread her buttocks with her hands and cough, and stand up and face the wall. An officer with a

video camera stands a few feet away and records the entire strip search. This officer is almost always

male, in violation of the federal Constitution, Massachusetts law, national correctional standards, and

the basic human dignity that these authorities are supposed to protect.

2. Defendants Ashe and Murphy are responsible for this unconstitutional practice.

They have created and maintained written strip search policies that permit male guards to record

Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 2 of 11
naked women. They know of and condone the fact that in practice, the guard recording the women is almost always male.
3. Debra Baggett, a former an inmate at WCC, suffers from mental illness, which resulted in her being taken to the Segregation Unit numerous times. April Marlborough, another former inmate, was also taken to the Segregation Unit; like many other inmates at WCC, Ms. Marlborough is a survivor of sexual abuse. Ms. Baggett and Ms. Marlborough seek to represent a class of women inmates at WCC who, like them, were strip searched while a male guard watched and took video. On information and belief, hundreds of women have been subjected to this humiliating and unconstitutional practice. II. JURISDICTION
4. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343. III. PARTIES
5. Named plaintiff Debra Baggett was at all times relevant to this complaint a resident of Massachusetts. Ms. Baggett was an inmate at the WCC from September 2008 to January 2010.
6. Named plaintiff April Marlborough was at all times relevant to this complaint a resident of Massachusetts. Ms. Marlborough was an inmate at the WCC from May 2008 to April 2011.
7. Defendant Michael J. Ashe, Jr. was at all times relevant to this complaint a resident of Massachusetts. He has been the Sheriff of Hampden County since 1974. He is sued in his individual capacity for actions taken under color of law.
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8. Defendant Patricia Murphy was at all times relevant to this complaint a resident of Massachusetts. She has been the assistant superintendent in charge of the WCC since it opened in 2007. She is sued in her individual capacity for actions taken under color of law. IV. FACTS
9. The Western Massachusetts Regional Women’s Correctional Center in Chicopee opened in October 2007. It is operated by the Hampden County Sheriff’s Department. It houses women detainees and convicted offenders from the four western counties in Massachusetts.
10. The WCC houses approximately 230 women inmates. Most of the women have been convicted of, or are being detained for, nonviolent offenses. More than a third have mental health problems. Many have been victims of sexual assault or abuse.
11. Inmates at the WCC who cannot remain in general population because they have mental health issues or need to be held in protective custody, or who commit certain disciplinary infractions, are taken to the Segregation Unit.
12. Multiple officers conduct the move. The Shift Commander leads the team, which includes at least three other officers. If the inmate is initially noncompliant, the team includes at least four officers, wearing riot gear.
13. To begin the move, the officers cuff the inmate’s wrists and shackle her ankles. A female officer puts on gloves and conducts a thorough “pat search” of the inmate’s full body.
14. After leading the inmate into a cell in the Segregation Unit, the officers remove the inmate’s cuffs and shackles.
15. All inmates taken to segregation are strip searched, regardless of whether there is any reason to believe they may be concealing a weapon or other contraband.
3

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16. An officer tells the inmate to take off all of her clothes. If the inmate is menstruating, she must remove any tampon or pad she is using and hand it to a guard.
17. Once naked, the inmate is ordered to lean forward and run her fingers through her hair, to remove her dentures if she wears them, to raise both arms, and then to lift her breasts. If she has a large midsection, she must “lift her stomach for visual inspection.”
18. A guard tells the inmate to turn around so that she is facing away from the officers. She is ordered to bend over, spread her buttocks apart with her hands, and cough. She must bend over far enough for guards to be able to see inside her anus and vagina.
19. The inmate is ordered to stand up and face the wall, and to remain facing the wall until the officers exit the cell.
20. During this entire process, an officer with a handheld video camera stands just outside the cell, a few feet away.
21. The officer faces the inmate and records her naked body. 22. This officer is almost always a male. 23. The Shift Commander remains inside the cell throughout the strip search. About half the time, the Shift Commander is a male. 24. Twenty years ago, the United States Court of Appeals for the First Circuit ruled that unless there is an emergency, cross-gender viewing of an inmate’s naked body during a strip search “would (in all likelihood) violate the Fourth Amendment.” Cookish v. Powell, 945 F.2d 441, 447 (1st Cir. 1991) (per curiam). Courts around the country have agreed. See, e.g., Byrd v. Maricopa County Sheriff’s Dep’t, 629 F.3d 1135, 1147 (9th Cir. 2011) (en banc) (describing the “litany of cases over the
4

Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 5 of 11
last thirty years” finding that cross-gender strip searches in the absence of an emergency are unconstitutional).
25. Massachusetts regulations governing county correctional facilities require that stripsearches be conducted “in relative privacy with as much dignity as possible … by staff the same sex as the inmate.” 103 C.M.R. 924.06(3).
26. American Correctional Association standards state that “[o]nly staff of the same sex as the offender participate in strip searches.” ACA Adult Community Residential Services (4th ed.) 2C-06.
27. The Prison Rape Elimination Act of 2003 called for the creation of a national commission to study the causes of prison sexual abuse and to develop standards designed to eradicate it. These standards, issued in June 2009, prohibit cross-gender strip searches and viewing of inmates’ naked bodies except in an emergency. See National Prison Rape Elimination Commission Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Adult Prisons and Jails, PP-4.
28. Longstanding United Nations standards prohibit men from supervising women prisoners at all. See United Nations Standard Minimum Rules for the Treatment of Prisoners ¶ 53.
29. Defendants’ written procedures pay lip service to the well-established prohibition on male guards’ viewing of female strip searches. In practice, however, guards do not follow the written procedures.
30. WCC Policy and Procedure 3.1.7, titled “Inmate Movement,” sets forth the procedures for moving an inmate to the Segregation Unit, including the requirement that the inmate be strip searched and that the entire process be videotaped.
5

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31. Until early 2010, the written procedure for videotaping the strip search stated, “The Response Officer operating the video camera, if male, stands outside the cell facing the Dayroom with the camera pointing inside the cell and records the inmate from the neck up.”
32. This written procedure was illogical and unworkable. The officer was to face away from the cell while recording activity behind his back inside the cell. It would be impossible to record the inmate from the neck up without looking through the camera lens or viewfinder. This is particularly so since the inmate moves during the procedure, bending over, twice, during the strip search. If the inmate moved or was moved to another part of the cell, the guard would not know this, and would not be able to continue recording her at all, unless he was looking at her.
33. Because the written policy required guards to do the impossible, they disregarded it as a matter of course. Male guards faced inside the cell as they recorded the female inmates’ naked bodies during the strip search.
34. After receiving inquiries about the policy, Defendants changed the written policy in early 2010.
35. The new policy states that the officer videotaping should be a female “unless impracticable to do so.” In practice, male guards still almost always do the videotaping.
36. The new written policy contains instructions on how male officers should videotape women. These instructions reflect what had been and remains the practice: male officers do not face away from the naked inmates and do not limit their recording to the neck up. The new written policy states simply that the “officer operating the video camera, if male, stands outside the cell with the camera pointing inside the cell and records the inmate.”
6

Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 7 of 11
37. As Sheriff, Defendant Ashe is the final policymaker for the Hampden County Sheriff’s Department. He is responsible for all of the policies of the department, including the movement and strip search policies of the WCC. His job responsibilities include ensuring that the policies and practices of the WCC comply with the Constitution.
38. Defendant Murphy is in charge of overall operations at the WCC. She is responsible for creating and implementing the policies and practices of the facility. Her job responsibilities include ensuring that the policies and practices of the WCC comply with the Constitution.
39. Defendants Ashe and Murphy created and implemented the written strip search and movement procedures for the WCC.
40. They created and maintained these written policies with knowledge that male guards would routinely view naked female inmates as they were being strip searched, or with reckless disregard of this fact.
41. Defendants Ashe and Murphy were aware that male staff were routinely viewing female inmates during these strip searches because women complained about this, formally and informally. However, Defendants permitted the practice to continue.
42. Debra Baggett was taken to the Segregation Unit multiple times while she was an inmate at the WCC, mostly for mental health reasons. On one occasion, she asked to be taken into protective custody because she was too afraid to remain in general population after witnessing a fight. On this occasion, like every other time she was taken to segregation, she was strip searched in the manner described above, with a male officer directly viewing and videotaping her naked body from a few feet away. She felt humiliated and degraded.
7

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43. April Marlborough was taken to the Segregation Unit on one or more occasions for disciplinary reasons. She was strip searched in the manner described above, with a male officer directly viewing and videotaping her naked body from a few feet away. As a victim of sexual abuse as a child, she felt violated and dehumanized by this experience. V. CLASS ACTION ALLEGATIONS
44. This action is brought pursuant to Rule 23(a) and (b) (1) and (3) of the Federal Rules of Civil Procedure by the named Plaintiffs as a class action on behalf of all women taken to the Segregation Unit at WCC whose strip searches were videotaped by a male officer.
45. The named plaintiffs, Debra Baggett and April Marlborough, are members of the class. The class represented by Plaintiffs is so numerous that joinder of all such persons is impractical. The practice described above has existed for a period going back more than three years before this complaint was filed. On information and belief, it has affected several hundred class members.
46. There are questions of law and fact common to the class of plaintiffs. Central to all the claims is the nature and constitutionality of the practice at the WCC of having male guards view and film female inmates being strip searched upon being brought to the Segregation Unit.
47. The named plaintiffs’ claims or defenses are typical of the claims or defenses of the class of plaintiffs.
48. The named plaintiffs will fairly and adequately represent and protect the interests of the members of the class. Counsel for the plaintiffs is experienced and capable in civil rights litigation. Class counsel has successfully represented plaintiffs in other class actions alleging unlawful strip searches. Counsel has the resources and expertise to prosecute this action.
8

Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 9 of 11
49. This action is properly maintainable as a class action because the prosecutions of separate actions by the individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class, which would establish incompatible standards of conduct for the defendants.
50. This action is properly maintainable as a class action because the prosecution of separate actions would create a risk of adjudications with respect to individual members of the class that would, as a practical matter, be dispositive of the interests of the other members who are not parties or would substantially impair or impede their ability to protect their interests.
51. This action is properly maintainable as a class action because the questions of law and fact common to the class predominate over any questions affecting only individual class members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
52. As a direct result of the policy or practice as described above, class members have been subjected to unlawful strip searches, which have caused each member of the class to endure emotional distress, humiliation, and degradation. VI. CLAIM Count One: 42 U.S.C. § 1983, Fourth and Fourteenth Amendments
53. The above paragraphs are incorporated herein. 54. Sheriff Ashe was the chief executive officer of the Hampden County Sheriff’s Department. He created and implemented the movement and strip search policies at the WCC. 55. Sheriff Ashe knew or recklessly disregarded that male guards were routinely viewing and videotaping female inmates being strip searched, in non-emergency situations, in violation of
9

Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 10 of 11
the Fourth Amendment to the United States Constitution. He had an obligation to correct this practice so that it would conform to the Constitution.
56. Assistant Superintendent Murphy was responsible for supervision and overall operations of the WCC. She created and implemented the movement and strip search policies at the WCC.
57. Assistant Superintendent Murphy knew or recklessly disregarded that male guards were routinely viewing and videotaping female inmates being strip searched, in non-emergency situations, in violation of the Fourth Amendment to the United States Constitution. She had an obligation to correct this practice so that it would conform to the Constitution.
58. By allowing the practice of routine male viewing and filming of naked women being strip searched to continue during the class period, Defendants Ashe and Murphy acted with reckless indifference to the constitutional rights of individuals who were held at the WCC as described above.
59. Well before the class period, the law was clearly established that routine male viewing of naked female prisoners, in the absence of an emergency, violates the Constitution. By the actions described above, Defendants deprived the named plaintiffs and members of the plaintiff class of their clearly established right, guaranteed by the Constitution of the United States, to be free from unreasonable searches.
60. As a direct and proximate result of this conduct, plaintiffs and the plaintiff class have suffered injuries as described above.
WHEREFORE, plaintiffs request that this Court: (a) Award compensatory damages and punitive damages to the named plaintiffs and to
members of the plaintiff class; (b) Award plaintiffs the costs of this action including reasonable attorney’s fees; and
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Case 3:11-cv-30223-MAP Document 1 Filed 09/15/11 Page 11 of 11
(c) Award whatever additional relief this Court deems necessary and appropriate. VII. JURY DEMAND
A jury trial is hereby demanded.
RESPECTFULLY SUBMITTED, /s/Howard Friedman Howard Friedman, BBO #180080 Law Offices of Howard Friedman, P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 617-742-4100 hfriedman@civil-rights-law.com /s/ David Milton_____________ David Milton, BBO #668908 Law Offices of Howard Friedman, P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 617-742-4100 dmilton@civil-rights-law.com
Date: September 15, 2011
11

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DEBRA BAGGETT, ET AL., Plaintiffs
v.
MICHAEL J. ASHE, JR., ET AL., Defendants

) ) ) ) C.A. No. 11-cv-30223-MAP ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
(Dkt. No. 41) May 23, 2013 PONSOR, U.S.D.J. Plaintiff Debra Baggett was a prisoner at the Western Massachusetts Regional Women’s Correctional Center (“WCC”) from September 5 through 12, 2008, and again from October 2, 2008, through January 28, 2010. While in custody, Plaintiff was taken to the Segregation Unit and strip searched during the transfer, a process which, pursuant to WCC policy, is videotaped by a corrections officer. Plaintiff has brought this putative class action pursuant to 42 U.S.C. §§ 1983 and 1988 and the Fourth and Fourteenth Amendments to the United States Constitution, contending that Defendants’ policy of permitting male correctional officers to videotape strip searches of the female inmates in non-emergency situations violated her constitutional rights.

Before the court now is Plaintiffs’ Motion for Class Certification, seeking to certify a class of approximately 178 former and current WCC inmates who were videotaped by male correctional officers during strip searches.
The 178 potential class members satisfy the numerosity requirement of Fed. R. Civ. P. 23(a)(1). Plaintiff’s claims raise questions of both law and fact common to the class, specifically (1) whether Defendants maintained a policy or custom of authorizing males to videotape strip searches of female prisoners in non-emergency situations and, if this occurred, (2) whether this policy violated the Fourth Amendment. Rule 23(a)(2). Plaintiff’s claims and defenses, since she contends that she herself was a subject of the policy, are obviously typical of the claims and defenses of the class, as required by Rule 23(a)(3). Furthermore, Plaintiff as the representative party, along with her very well qualified attorneys, will adequately protect the interests of the class. Rule 23(a)(4).
Finally, as required by Rule 23(b)(3), a class action in this case is the superior method for resolving the common questions of law and fact that exist. Differences in the specific circumstances of individual class members may affect entitlement to damages, but do not affect the analysis of the propriety of as class action. See Tyler v.
2

Suffolk County, 253 F.R.D. 8, 11 (D. Mass. 2008) (certifying a class because the existence of divergent damages among class members is not an obstacle where a “‘sufficient constellation’ of common questions predominates”).
Defendants’ opposition raises several arguments that may be pertinent to the ultimate resolution of the case on the merits, but are unpersuasive on the issue of class certification. Defendants assert that Plaintiff has failed to meet her burden under Rule 23(a), as established by the Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), of affirmatively demonstrating the existence of the four elements for class certification. However, the Affidavit of David Milton (Dkt. No. 43) in support of Plaintiffs’ motion offers sufficient proof of the fact that the four elements are met to satisfy the standard as articulated in Wal-Mart. Also, Defendants refute the existence of a commonality of issues because Defendants allege that they had several different policies in place for the transfer of prisoners into the Segregation Unit during the class period. However, the minor variations in the applicable policies do not make certification improper. According to Plaintiff, none of the polices limited videotaping of strip searches by male correctional officers to emergency situations alone; this is what she challenges.
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For the foregoing reasons, Plaintiffs’ Motion for Class Certification (Dkt. No. 41) is hereby ALLOWED. The pretrial phase of the case will continue to unfold, under the supervision of Magistrate Judge Kenneth P. Neiman, in accordance with the revised scheduled order entered on January 9, 2013 (Dkt. No. 36), as modified by the parties’ joint motion (Dkt. No. 72), adopted by the court on April 30, 2013.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 Case 3:11-cv-30223-MAP Document 242-1 Filed 03/31/15 Page 1 of 20

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

DEBRA BAGGETT, et al.,

)

Plaintiffs,

)

)

Civil Action No. 11-30223-MAP

v.

)

)

MICHAEL J. ASHE, JR., et al., and

)

Defendants

)

__________________________________________)

SETTLEMENT AGREEMENT

I. SUMMARY 1. The parties to this action, class representative Debra Baggett, individually and on
behalf of the Class (“Plaintiffs”), and Michael J. Ashe, Jr., and Patricia Murphy, in their individual capacities (“Defendants”), by counsel, have entered into this Settlement Agreement, which they submit to the Court for approval. The Agreement requires Defendants to change their policy to prohibit male correctional officers from holding the camera during the strip searches of female inmates except in exigent circumstances. The Agreement provides that Defendants will settle Plaintiffs’ claims for $675,000, to be allocated as follows, subject to the approval of the Court: Class Members will receive a total of $178,000 (the “Class Member Pool”), which will be divided equally among participating class members after payment of a $20,000 bonus to the class representative and $2,000 bonuses to each of the four class members who had their depositions taken. Under this Agreement, participating class members will receive one payment each no matter how many times they were videotaped by a male officer during the class period. Plaintiffs’ counsel will receive a total of $497,000, of which $475,000 represents attorney’s fees and $22,000 represents costs. This is a settlement of a disputed claim. Defendants deny any wrongdoing on their own parts or on the part of their staff.

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II. BACKGROUND 2. Class representative Debra Baggett is a former inmate at the Western Massachusetts
Regional Women’s Correctional Center (“WCC”) in Chicopee, Massachusetts. The WCC is part of the Hampden County Sheriff’s Department (“HCSD”).
3. Defendant Michael J. Ashe, Jr., is the Sheriff of Hampden County. 4. Defendant Patricia Murphy is the Assistant Superintendent in charge of the WCC. 5. Plaintiff filed this class action lawsuit for damages on September 15, 2011, alleging, inter alia, that Defendants’ policy permitting male correctional officers at the WCC to videotape female inmates being strip searched in non-emergency situations violated the Fourth Amendment. 6. On May 23, 2013, the Court certified this case as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The class is defined as “All women strip searched at the Western Massachusetts Regional Women’s Correctional Center while a male officer videotaped the strip search, since September 15, 2008.” The parties have identified 176 women who meet this definition (“Class Members”). Class membership was determined by reviewing incident reports about moves to the Segregation Unit at the WCC and videotapes of these moves and attendant strip searches. 7. By Memorandum and Order dated August 26, 2014, the Court granted Plaintiffs’ Motion for Summary Judgment. The Court ruled that Defendants’ policy permitting male correctional officers to videotape female inmates during strip searches in non-emergency situations violated Class Members’ constitutional rights, and that Defendants were liable to class members for these violations. 8. Defendants deny any wrongdoing or unlawful conduct on their own part or on the part of their employees or staff. Defendants deny that any male officers ever watched any portion of the strip search of a female inmate. They reassert that any cross-gender viewing was expressly forbidden by policy, procedure, and training, that there was a Supervisor present at every strip search
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to ensure compliance with policy, procedure, and training, and that neither Defendants nor their staff ever received a written grievance about the challenged practice. Plaintiffs dispute these assertions. On September 17, 2014, Defendants filed a notice of appeal of the Court’s decision to the First Circuit Court of Appeals.
9. The parties reached this Agreement before any briefs were filed in the First Circuit. 10. The parties reached this Agreement after engaging in arm’s-length settlement negotiations, including a mediation session and multiple follow-up discussions with the Honorable Patrick King, Settlement Counsel at the First Circuit Court of Appeals. Following an in-person session with Judge King on November 4, 2014, the parties continued negotiations for more than a month via telephone and email with Judge King serving as an intermediary. Judge King recommended the Total Settlement Amount to the parties and he endorsed the manner in which this amount is divided among Class Members, the named Plaintiff, the Class Member deponents, and attorney’s fees and costs. 11. Plaintiffs’ counsel conducted a thorough examination and investigation of the facts and law relating to this litigation. The parties engaged in comprehensive discovery for almost two years. Discovery included 23 depositions including those of the named Plaintiff and the Defendants; Class Members and other former WCC inmates who are not class members; numerous Hampden County Sheriff’s Department correctional officers, supervisors, and administrators; and an outside consultant to the Sheriff’s Department. The parties engaged in extensive document discovery, including the production by Defendants of more than 15,000 pages of documents. Pursuant to subpoena, nonparties the Massachusetts Department of Correction (“DOC”) and the Middlesex County Sheriff’s Department produced more than 1,000 pages in total. Defendants produced more than 800 videos of moves to Segregation and accompanying strip searches, including 274 videos of moves and strip searches in which a male correctional officer held the video camera during the strip search. Plaintiffs and Defendants both served expert reports from correctional professionals.
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12. The parties have concluded that settlement is desirable in order to avoid the time, expense, and inherent risks and uncertainties of continuing this litigation, and in order to finally and completely resolve all pending claims of the Plaintiff and Class Members relating to the alleged conduct involved in this lawsuit. This Settlement Agreement represents a compromise of a disputed claim. Defendants deny any liability, wrongdoing, and/or malfeasance on the part of the Defendants, the Commonwealth, and/or their employees or staff..
13. The parties believe that this Settlement Agreement is fair, reasonable and adequate. Plaintiffs’ counsel believes it is in the best interests of Plaintiff and Class Members.
14. This Settlement Agreement is made and entered into, through counsel, by Defendants Michael J. Ashe, Jr., and Patricia Murphy, in their individual capacities, and Plaintiff Debra Baggett, individually and on behalf of all Class Members. As described below, the Commonwealth of Massachusetts, through counsel, also assumes obligations under this Agreement and intends to be bound by this Agreement.
15. All parties and Class Members are bound by this Settlement Agreement .III. REQUIRED PAYMENTS AND POLICY CHANGES
16. On behalf of both Defendants, the Commonwealth of Massachusetts will pay the sum of Six Hundred Seventy-Five Thousand Dollars ($675,000.00) to settle all claims brought by Plaintiffs in this action, including claims for attorney’s fees and costs. The $675,000 is referred to as the “Total Settlement Amount.” The Total Settlement Amount represents the sum of the amount paid to Class Members, which is $178,000, and the amount paid to Plaintiffs’ counsel as attorneys’ fees and reimbursement for costs (“Attorney’s Fees and Costs”), which is $497,000.
17. All payments hereunder will be made by the Commonwealth of Massachusetts as detailed in this Agreement.
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18. All parties understand that this agreement will require the approval of the Court. All parties will ask the Court to approve the terms of this Settlement Agreement.
19. Defendants will amend the WCC policy on inmate movement to prohibit male officers from holding the video camera during strip searches except in exigent circumstances. The restriction on male officers’ videotaping strip searches shall be the same restriction as applies in Defendants’ policies to male officers’ conducting strip searches. The restriction in both cases shall mirror the restriction on cross-gender strip searches and cross-gender visual body cavity searches in the final standards of the Prison Rape Elimination Act (“PREA”), which prohibit such searches except in exigent circumstances. PREA Standards § 115.15. Defendants’ policies shall adopt the PREA standards’ definition of “exigent circumstances,” which are “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” PREA Standards § 115.5. Within thirty (30) days of the Court’s granting preliminary approval of the settlement, Defendants shall provide Plaintiffs’ counsel with an unsigned final draft of all amended policy documents containing the changes required under this Agreement. Defendants shall make the amended policies effective no later than thirty (30) days after the Court’s final approval of the settlement, by which time they shall provide Plaintiffs’ counsel with copies of the signed, effective version of all amended policy documents.
20. The above restrictions shall be included in the following places in Defendants’ written policies and procedures (“P&P’s”).
(a) In P&P 3.1.7 (“Inmate Movement”), the paragraph of the Background section currently requiring female officers to videotape strip searches “unless impracticable to do so” shall be amended to read: “The videotaping of the strip search portion of a compliant or noncompliant security escort is assigned to female staff except in exigent circumstances. The term ‘exigent circumstances’ is defined below, and is intended to prohibit supervisors from
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assigning male officers to videotape the strip search portion of a security escort except in circumstances that would warrant assigning male staff to be one of the primary staff conducting a strip search. (See 3.1.11 Strip Searches).”
(b) In P&P 3.1.7, the Definitions section shall include the following definition of exigent circumstances: “Exigent circumstances: Any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.”
(c) In P&P 3.1.7, Section D, “Compliant Security Escorts,” ¶ 2(c) shall be amended to read: “Assigned staff video records the entire escort. Except in exigent circumstances, the assigned staff who videotapes the strip search portion of the escort shall be a female.”
(d) In P&P 3.1.7, Section D, ¶ 34 shall be amended to read: “A female staff informs the inmate and the other staff that she will conduct a strip search. (See 3.1.11 Inmate Searches.) At this time, the camera operator, if male, shall hand the camera to a female staff or stop videotaping, except in exigent circumstances.” 21. Defendants shall provide statistics to Plaintiffs’ counsel regarding (a) the total number of moves to higher security and (b) total number of moves in which a male officer videotaped during the strip search, as follows: (1) By January 30, 2016, Defendants shall provide such statistics for the period from January 1, 2015, to December 31, 2015; (2) by July 30, 2016, Defendants shall provide such statistics for the period from January 1, 2016, to June 30, 2016. For any male-on-camera moves that occur during a reporting period, Defendants shall provide, along with the statistics, a copy of the video of the full move and strip search and any reports or materials documenting the need for the male videotaping. 22. The parties will request that the Court hold a hearing to determine whether to grant preliminary approval to the settlement. Before the hearing the parties will file a Joint Motion for
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Preliminary Approval of the Settlement Agreement. If preliminary approval is granted, the parties will begin to implement the settlement.
23. The parties will request that the Court hold the Final Fairness Hearing to decide whether to grant final approval of the settlement on a date approximately 90 days after the Court grants preliminary approval to the settlement.
24. Before the date of the Final Fairness Hearing, the parties will file a Joint Motion for Final Approval of the Settlement Agreement. Plaintiffs’ counsel will file a separate motion asking the Court to approve the attorneys’ fees and costs contemplated under this Agreement. Defendants agree not to oppose this motion provided that the total amount of fees and costs requested do not exceed $497,000.
25. If the Court grants final approval of the settlement, the Total Settlement Amount will then be distributed pursuant to this Agreement and the orders of the Court.
26. Defendants shall inform Plaintiffs’ counsel when the Total Settlement Amount is available for distribution. Counsel recognize that the timing of funding for the Settlements and Judgments account is entirely at the discretion of the Legislature and is not necessarily predictable before the Legislature takes action.
27. All parties represent that they are authorized to enter into this Settlement Agreement and that they are able to perform each of its terms. Defendants specifically represent that the Commonwealth of Massachusetts has agreed to pay the Total Settlement Amount and is bound to do so under the terms of this Settlement Agreement and in accordance with this Settlement Agreement.
28. The parties will cooperate with each other in good faith and will promptly take all necessary steps to carry out and effectuate this Settlement Agreement. Defendants and their counsel agree to provide reasonable assistance to facilitate the administration of this settlement including
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providing access to Class Member information in their possession necessary to send notice and to process claims. Defendants and their counsel further agree to provide access to all data and documents, in their possession including any videos, necessary to resolve any appeals from individuals who file claims (“Claimants”) who dispute Plaintiffs’ counsel’s determination that they are not Class Members. IV. CLASS NOTICE AND CLAIMS ADMINISTRATION
29. Plaintiffs’ counsel’s law firm, the Law Offices of Howard Friedman, P.C. (“LOHF”), will serve as Claims Administrator for this case. Plaintiffs’ counsel and LOHF will not receive additional fees or other compensation (including reimbursement for additional costs) for this work apart from the fees and costs provided for in ¶¶ 1 and 16, above. Plaintiffs’ counsel may include the time spent and costs incurred performing this work in its application to the Court for attorney’s fees and costs. LOHF has settled numerous prisoner class actions, and has worked closely with thirdparty claims administration services. LOHF prepared and sent the initial Class Notice in this case. LOHF is knowledgeable about the systems and procedures necessary to ensure adequate notice to Class Members and processing of claims. LOHF is aware of the time and effort that claims administration of the settlement will entail; LOHF has the resources to administer this settlement. Upon preliminary approval by the Court, LOHF will provide the claims administration services described in this Agreement. The Commonwealth of Massachusetts will distribute settlement checks to Class Members and provide the other services described below.
30. LOHF will administer notice to Class Members in the manner prescribed by the Court; shall accept and record all claim forms; shall send each denied Claimant notice that her claim has been denied; shall resolve any appeals of claim denials and shall calculate the payment to Class Members in accordance with this agreement. Plaintiffs’ counsel will provide Defendants and the
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Commonwealth with the class distribution list after final approval of the settlement, as described in ¶ 51, below.
31. As soon as practicable, but in no case later than the date the Court holds a hearing on preliminary approval of the Settlement Agreement, Defendants’ counsel will provide Plaintiffs’ counsel with the following information for all Class Members: (a) full name; (b) known aliases; (c) Social Security Number, (d) date of birth; (e) last known address(es), and, if known, phone number(s); and (f) the date of the Class Member’s release from HCSD custody. The information described in (a) through (f) of this paragraph, which shall be known as the “Class Member Information,” shall be provided electronically in Microsoft Excel format. The “last known address(es)” shall mean the most recent address(es) known to the Hampden County Sheriff’s Department. “Known to the Hamden County Sheriff’s Department” means known to any division of the HCSD, including but not limited to the WCC, the Western Massachusetts Correctional Alcohol Center (“WMCAC”), and the Community Safety Center. If any individual is in the custody of any Hampden County Sheriff’s Department or Massachusetts Department of Correction facility at the time the Class Member Information is provided, Defendants shall provide the name and address of the facility in addition to such individual’s last known outside address(es).
32. LOHF will send a Notice of Class Action and Proposed Settlement (“Notice”), and a Settlement Claim Form (collectively, the “Notice Packet”), by first-class mail postage prepaid to all Class Members at their last known addresses within ten (10) days of receipt of the Class Member Information from Defendants, or the date the Court preliminarily approves the settlement, whichever is later. For any Class Members who have contacted LOHF directly to provide an address, LOHF will also send the Notice Packet to this address, if it is known to be more recent than the address provided by Defendants; if it is unknown which address is more recent, LOHF will send the Notice Packet to both addresses. If any mail is returned by the post office with notice of a
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more current address, LOHF will resend the Notice Packet to the newer address. If any mail is returned by the post office as undeliverable without notice of a more current address, LOHF will use an online skip trace service to identify potentially current addresses of Class Members. LOHF will also attempt to reach class members via social media and email. LOHF may, but is not required to, make any further efforts to send mail directly to Class Members or otherwise contact Class Members individually.
If any Class Member contacts Defendants or their representatives with updated contact information, Defendants will, to the best of their ability, provide this information to LOHF and will tell the Class Member to contact LOHF. Specifically, to comply with the terms of this paragraph, Defendants will provide a notice to the switchboard at every HCSD facility that handles female inmates (i.e. the WCC, WMCAC, the Day Reporting Center, After-Incarceration Support Services, and the HCSD’s main switchboard), which notice will include a log sheet and instructions for fielding such calls.
33. The Notice will include the terms of the settlement including the Class Member’s rights to contest the settlement. The Notice will explain the settlement terms and answer anticipated questions. The Notice will provide the date and time of the Final Fairness Hearing. The proposed Notice mailed to Class Members is attached as Exhibit A.
34. The Claim Form requests the Class Member’s contact information and instructions for check delivery, and requires completion of a substitute W-9 Form. The proposed Claim Form is attached as Exhibit B.
35. At the time they provide Plaintiffs’ counsel with Class Member Information, Defendants shall identify each Class Member who is then in the custody of the Hampden County Sheriff’s Department, whether in the WCC, WMCAC, or another HCSD facility, and shall hand deliver to each such Class Member a Notice Packet. Approximately 30 days before the deadline for
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submitting claims, Defendants shall again identify all Class Members in HCSD custody at that time, and shall hand deliver a Notice Packet to any Class Member not identified the first time.
36. Defendants shall provide a copy of a “Generic Notice” and “Generic Claim Form” – designed for individuals whom the parties have not already determined to be Class Members – to any female inmate at either facility upon request. The Generic Notice and Generic Claim Form are attached as Exhibit C and Exhibit D, respectively. Defendants and their employees shall provide the name, address, and phone number of the LOHF in response to any inquiries about the settlement or the claims procedure, but Defendants shall have no further obligation to respond to any such inquiries.
37. The parties shall issue a joint press release informing the public of the settlement. The press release shall be sent to local news organizations, including the Springfield Republican, Valley Advocate, Daily Hampshire Gazette, Greenfield Recorder, the Associated Press, and several Western Massachusetts radio and TV stations within 10 days of preliminary approval. The press release is attached as Exhibit E. The Commonwealth of Massachusetts will not join in this press release. Class counsel shall place legal notice by publication for two days in the Springfield Republican within 10 days of preliminary approval. The legal notice is attached as Exhibit F. The Notice, Claim Form and other information about the lawsuit will also be available on LOHF’s website, www.civil-rightslaw.com. Notice as set forth in this paragraph shall be deemed sufficient legal notice to Class Members who did not receive individual notice.
38. To claim a share of the settlement, a Class Member must submit a valid and complete Claim Form and substitute W-9 form that are received no later than sixty (60) days after the date that Notice is first mailed to Class Members, or as allowed by the Court. This deadline is the “Claims Deadline.”
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39. Claim Forms received by LOHF after the Claims Deadline will be denied as untimely, except as allowed by the Court.
40. To object to the proposed settlement, a Class Member must submit a written notice of the objection to LOHF that is received no later than sixty (60) days after the date that Notice is first mailed to Class Members. An objector who has submitted a timely written notice of objection may also appear in person or through counsel at the Final Fairness Hearing. Plaintiffs’ counsel will file all written objections with the Court no less than ten (10) days before the Final Fairness Hearing. The objecting Class Member must also submit a Claim Form if she wishes to be eligible to share in the settlement should it be approved despite her objection or any other objections.
41. LOHF will review each Claim Form to determine that a Class Member Claimant qualifies to be a Participating Class Member by confirming (a) that the completed Claim Form is timely and valid, (b) that the information on the Claim Form is consistent with the Class Member Information provided by Defendants, and (c) that the form is completely filled out and signed and is accompanied by a completed substitute W-9 form. If LOHF determines that an individual not on the Class List and who submits a Claim Form is a Class Member, LOHF will send her a notice of approval, provided that the Claim Form meets requirements (a) and (c). LOHF will provide a copy of the notice of approval to Defendants’ counsel.
42. LOHF may, in its discretion, waive a technical defect in a completed Claim Form to achieve substantial justice.
43. If the Claimant is determined not to be a Participating Class Member, LOHF will send a Notice of Claim Denial to the Claimant. Where possible, LOHF shall provide the reason for the denial. LOHF will provide a copy of the notice of denial to Defendants’ counsel.
44. To object to LOHF’s determination that she is not a Class Member, a Claimant must send a written appeal to LOHF received no later than fourteen (14) days after the date of the mailing
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of the Notice of Claim Denial. The Claimant must include a written statement of the basis for assertion that she is a Class Member. LOHF will investigate the claim and, after consulting with defense counsel, make a determination on each appeal within seven (7) days. LOHF will inform the Claimant in writing of its determination, and provide a copy to defense counsel.
45. A Claimant may appeal to the Court LOHF’s final decision denying a claim. In order to do so, a Claimant must write a letter addressed to LOHF indicating her wish to appeal to the Court that is received no more than fourteen (14) days after the date of the mailing of the final decision denying her Claim. Plaintiffs’ counsel will present all such appeals, along with supporting materials and other materials relevant to the determination, to the Court when they are received. V. SUBMISSION FOR PAYMENT
46. Within ten (10) days after approval of the settlement at the Final Fairness Hearing, or receipt of the Distribution List and W-9 Forms from LOHF, whichever is later, defense counsel will submit to the Comptroller’s Office for payment an executed Settlement and Judgment Payment Authorization Form, along with all required documentation. Thereafter, Defendants’ monetary obligation will be processed by the Commonwealth in accordance with the procedures set forth in 815 CMR 5.00. In the next available appropriations vehicle following submission of the aforesaid documentation to the Comptroller’s Office, the Commonwealth will seek all necessary appropriations from the Massachusetts Legislature to meet its monetary obligation under this Settlement Agreement. VI. EXPENSES AND ATTORNEY’S FEES
47. Plaintiffs’ counsel will ask the Court to approve payment of Plaintiffs’ attorney’s fees in an amount of $475,000. In addition to attorney’s fees, Plaintiffs will ask that the Court award litigation expenses and class action administrative costs, which combined shall not exceed $22,000.
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made payable to Plaintiffs’ counsel. Such check shall be mailed at the same time that distribution payments are first made to Participating Class Members under this Agreement.
The parties have engaged in exceptionally hard fought litigation for more than three years. Plaintiffs’ counsel represents that their attorney’s fees as of the date of this Agreement exceed $475,000, and that Plaintiffs’ litigation costs as of the date of this Agreement exceed $22,000. Plaintiffs’ counsel significantly reduced the amount of fees and costs to which they would be entitled as a prevailing party under 42 U.S.C. § 1988 and under the contingent fee agreement with the class representative (which provided for reimbursement of all costs), in order to facilitate settlement. Plaintiffs’ counsel agreed to administer the settlement through their law firm as an additional measure to facilitate settlement by saving costs. Defendants acknowledge that Plaintiffs’ counsel reduced their demand for fees and costs during settlement negotiations. VII. DISTRIBUTION TO CLASS MEMBERS
48. In addition to her share as a Participating Class Member, class representative Debra Baggett will receive $20,000, subject to approval of the Court, to be paid from the Class Member Pool to compensate her for bringing this case, the time she spent on this case and her loss of privacy as a result of serving as the named Plaintiff. Ms. Baggett has worked closely with Plaintiffs’ counsel since late 2009 to change the policy at issue. Since the lawsuit was filed in September 2011, she has regularly provided counsel with information and has informed numerous Class Members and other witnesses about the lawsuit. She attended pretrial hearings including the summary judgment hearing, and she attended a mediation in Worcester with then-Magistrate Judge Timothy S. Hillman. She answered interrogatories and document requests, many of which were of a highly personal nature, in painstaking detail. She spent many hours preparing for her deposition, which lasted for the full seven hours permitted under the Federal Rules. Although she was released from the WCC in 2011, the lawsuit has required her to continue to focus on painful memories of her time in jail. This
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payment will be issued at the same time as the distribution payments to Class Members. 49. In addition to their respective shares as Participating Class Members, the four Class
Members who gave depositions, will each receive $2,000 from the Class Member Pool, subject to approval by the Court, to compensate them for their service to the Class and their time and effort in being deposed by defense counsel. Their work in this regard included meeting with Plaintiffs’ counsel to prepare for the deposition and reviewing the transcript of the deposition afterwards.
50. Participating Class Members will each receive an equal share of $150,000, which is the amount of the Class Member Pool remaining after payment of the above service bonuses to the class representative and the deponents. LOHF will calculate the amount of money due each Class Member by dividing $150,000 by the number of Participating Class Members. Each Participating Class Member will receive the same amount regardless of how many times she was strip searched while a male officer operated the video camera.
51. LOHF will prepare a settlement distribution list in the form of a spreadsheet which will contain the legal names, current addresses, mailing addresses (if different), and Social Security Number or Taxpayer ID number of the Participating Class Members as well as the Distribution Amount for each Participating Class Member (“Distribution Spreadsheet”). LOHF shall send the Distribution Spreadsheet, along with all of the Substitute W-9 forms submitted by Participating Class Members, to Defendants’ counsel after the time for any appeals to LOHF of denied claims has expired.
Any subsequent changes of address requests must be made in writing and must be signed by the Participating Class Member and must include an amended W-9 Form. The Defendants will give notice when the funds are appropriated and when the Comptroller’s Office is no longer accepting address changes (which should be no more than 30 days before the checks are distributed).At this time, LOHF will send a final Distribution Spreadsheet that reflects all changes of address.
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52. The Commonwealth will directly pay each Participating Class Member and Plaintiffs’ Counsel. The Commonwealth may deduct any outstanding child support or tax obligations or other delinquent debts owed to the Commonwealth pursuant to M.G.L. Ch. 7A § 3, from a Participating Class Member’s Distribution Amount if that Class Member owes any such obligations. The check stub or payment advice shall indicate the amount of any such deduction(s), the department for which the deduction(s) is (are) being made, and the contact information of such department(s). If a Participating Class Member receives no money from the settlement as a result of such deduction(s), then she shall receive a check stub or payment advice with the foregoing information concerning the deductions.
53. The Commonwealth will be responsible for all tax withholding and reporting as required by law. Participating Class Members are responsible for payment of any additional taxes and other withholdings for which they are legally responsible that may become due on settlement proceeds, and hold Defendants, and their counsel harmless from any and all claims for said taxes and withholdings thereon.
54. Each Participating Class Member’s check will be made payable only in her name or in the name of a deceased Class Member’s estate, provided the duly appointed estate representative has complied with ¶ 61 and completed a W-9 Form, and subject to the provisions of Paragraph 52. If the Class Member’s address is listed on the Distribution List as “Class Member c/o [another individual]”, the Commonwealth shall ensure that the Class Member’s check is not made payable to the “Class Member c/o [such individual].” The check will contain a memo or other indication that it is payment for the “Hampden County class action settlement,” to help Class Members identify the purpose of the check. The check will be mailed to the Participating Class Member at the legal address indicated on the Claim Form or as updated as provided in Paragraph 51, above. The Commonwealth shall not make changes to the addresses or other information on the Distribution
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List without prior approval from Plaintiffs’ counsel. If any Class Member contacts the Commonwealth with new contact information, the Commonwealth will provide this information to LOHF and tell the Class Member to contact LOHF.
55. If a Participating Class Member is confined in a prison, hospital, or other institution and has provided the address of such institution for payment, the settlement check will be sent to that address unless the Participating Class Member makes other acceptable arrangements in writing with LOHF. VIII. POST-DISTRIBUTION ADMINISTRATION
56. The Commonwealth will prepare all 1099s, and any other tax forms relating to the settlement that are required by law, for all Participating Class Members during the next regular taxform processing period following the distribution.
57. Within 60 days of mailing settlement checks to Class Members, the Commonwealth will provide to LOHF a settlement distribution report accounting for the distribution of the Settlement Proceeds, including attorney’s fees and expenses. The report shall contain the following information for each Participating Class Member: full name; taxpayer identification number; vendor customer code; check number; check issue date; check clear date; amount of payment; amount of interception by the Commonwealth, if any; and address to which the check was sent.
58. One year after the original date of the first distribution, the Commonwealth will provide a final report accounting for the distribution of the Settlement Proceeds, upon written request, which shall include the information described in ¶ 57.
59. Class Members will be informed in the Claim Form that all settlement checks must be cashed within sixty days.
60. Checks not presented for payment within one year from the original date of issue will be subject to M.G.L. c. 29, § 32.
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IX. DECEASED CLASS MEMBERS 61. If a Class Member is deceased, an authorized representative may file a Settlement
Claim Form on behalf of the estate. However, the representative must provide to LOHF documentation that an estate has been established in accordance with the law and that he or she is the duly appointed representative. X. RELEASE AND DISMISSAL
62. In consideration of payment of the Settlement Proceeds, and the Defendants’ other undertakings hereunder, and for other good and sufficient consideration, the receipt and sufficiency of which is hereby acknowledged, Plaintiffs, including those Class Members who do not file claims, hereby remise, release, acquit, satisfy, and forever discharge Defendants Michael J. Ashe, Jr., and Patricia Murphy, in their individual and official capacities, the Commonwealth of Massachusetts and all of their present and former agents, servants, independent contractors, officers, officials, employees and insurers as well as each of their estates, heirs, executors, personal representatives, successors in interest, and assigns (the “Released Parties”), of and from any and all manner of action and actions, cause or causes of action, suits, debts, dues, claims, rights, compensation, attorneys’ fees, costs, expenses, compensation, damages and demands, including all known and unknown, foreseen and unforeseen, developed and undeveloped damages and the consequences thereof, and any and all claims of every kind, nature, and description whatsoever, in law (be it constitutional, statutory, or common law) or in equity, which Plaintiffs now have or ever had arising out of or in any way related to the allegations in the Complaint in the action entitled Baggett, et al. v. Ashe, et al., United States District Court Civil Action No. 11-30223-MAP (D. Mass.), including any claims related to any of the inmate moves and/or strip searches at issue in the above action.
63. It is the express intent of the Plaintiffs to enter into and be bound by this full and final Settlement Agreement to settle and compromise all claims against the Defendants by the
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Plaintiffs. Plaintiffs agree to the entry of a dismissal with prejudice of United States District Court Civil Action No. 11-30223-MAP (D. Mass.) upon Defendants’ and the Commonwealth’s performance in full of the terms of this Settlement Agreement, and upon Plaintiffs’ receipt of the final distribution report as described in ¶ 58, except that Plaintiffs agree that any required statistical reporting set forth in Paragraph 21 above that is not yet required at the time that Defendants and the Commonwealth have performed all other terms of this Agreement will not delay the entry of dismissal with prejudice.
64. The Plaintiffs agree and acknowledge that no promise, inducement, or agreement, not expressly contained in this agreement, has been made to them. This Settlement Agreement supersedes any and all previous agreements or understandings, whether written or oral and contains the entire agreement by and among the Plaintiffs and the Released Parties with respect to the allegations in the Complaint in the action of Baggett, et al. v. Ashe, et al., United States District Court Civil Action No. 11-30223-MAP (D. Mass.), including any claims related to any of the inmate moves and/or strip searches at issue in the above action.
65. It is the express intent of Defendants and of the Commonwealth of Massachusetts to be bound by this Settlement Agreement. XI. COURT SUPERVISION
66. Until the aforesaid action has been dismissed pursuant to Paragraph 63 above, but not thereafter, the Court will retain jurisdiction over the settlement and may enter orders as appropriate to enforce it, to adjudicate the rights and responsibilities of the parties, and to effect fair and orderly administration.
67. Any deadlines, dates, or other details in this Settlement Agreement may be changed by the Court on a showing of good cause.
19

Case 3:11-cv-30223-MAP Document 242-1 Filed 03/31/15 Page 20 of 20

 
 Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 1 of 23
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:11−cv−30223−MAP

CLOSED

Baggett et al v. Ashe et al Assigned to: Judge Michael A. Ponsor Case in other court: USCA, 14−01974 Cause: 42:1983 Civil Rights Act Plaintiff Debra Baggett
Plaintiff April Marlborough On behalf of themselves and others similarly situated TERMINATED: 05/14/2013

Date Filed: 09/15/2011 Date Terminated: 09/16/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David Milton Law Offices of Howard Friedman 90 Canal Street 5th Floor Boston, MA 02114−2022 617−742−4100 Fax: 617−742−5858 Email: dmilton@civil−rights−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Friedman Law Offices of Howard Friedman, P.C. 90 Canal Street 5th Floor Boston, MA 02114−2022 617−742−4100 Fax: 617−742−5858 Email: hfriedman@civil−rights−law.com ATTORNEY TO BE NOTICED
represented by David Milton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Friedman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Michael J. Ashe

represented by Edward J. McDonough , Jr. Egan, Flanagan & Cohen, PC 67 Market Street PO Box 9035 Springfield, MA 01102−9035 413−737−0260 Fax: 413−737−0121 Email: ejm@efclaw.com TERMINATED: 05/16/2013 ATTORNEY TO BE NOTICED
Theresa M.S. Finnegan Hampden County Sheriff's Department 627 Randall Road Ludlow, MA 01056

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 2 of 23

413−858−0988 Fax: N/A Email: theresa.finnegan@sdh.state.ma.us ATTORNEY TO BE NOTICED

Thomas E. Day Egan, Flanagan & Cohen PC 67 Market Street Springfield, MA 01102−9035 413−737−0260 Fax: 413−737−0121 Email: TED@efclaw.com ATTORNEY TO BE NOTICED

Defendant
Patricia Murphy In their individual capacities

represented by Theresa M.S. Finnegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. McDonough , Jr. (See above for address) TERMINATED: 05/16/2013 ATTORNEY TO BE NOTICED

Thomas E. Day (See above for address) ATTORNEY TO BE NOTICED

Mediator
Judge Timothy S. Hillman TERMINATED: 03/30/2012

V. Intervenor Department of Correction for the State of Massachusetts
Intervenor Tanya M Smith TERMINATED: 05/28/2015 Intervenor Monica Vasquez TERMINATED: 05/28/2015 Intervenor Angela McConnell TERMINATED: 05/28/2015 Intervenor

represented by C. Raye Poole Department of Correction Legal Division 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 Fax: 617−727−7403 Email: CRPoole@doc.state.ma.us ATTORNEY TO BE NOTICED

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 3 of 23
Wayne Albright TERMINATED: 05/28/2015
Intervenor Sydney Decapiano TERMINATED: 05/28/2015
Intervenor Amber Lambert TERMINATED: 05/28/2015

Date Filed 09/15/2011
09/15/2011
09/15/2011
10/17/2011 10/17/2011 11/15/2011 11/15/2011 11/23/2011 11/23/2011 11/28/2011 11/29/2011
12/12/2011

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 350, receipt number 0101−3581425 (Fee Status: Filing Fee paid), filed by Debra Baggett, April Marlborough. (Attachments: # 1 Category Form, # 2 Civil Cover Sheet)(Milton, David) (Entered: 09/15/2011)
ELECTRONIC NOTICE of Case Assignment. Judge Michael A. Ponsor assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Kenneth P. Neiman. (Folan, Karen) (Entered: 09/15/2011)
2 Summons Issued as to Michael J. Ashe, Patricia Murphy. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service.. Consent Form mailed to counsel. (Finn, Mary) (Entered: 09/15/2011)
3 WAIVER OF SERVICE Returned Executed by Debra Baggett. Michael J. Ashe waiver sent on 9/16/2011, answer due 11/15/2011. (Friedman, Howard) (Entered: 10/17/2011)
4 WAIVER OF SERVICE Returned Executed by Debra Baggett. Patricia Murphy waiver sent on 9/16/2011, answer due 11/15/2011. (Friedman, Howard) (Entered: 10/17/2011)
5 Assented to MOTION for Extension of Time to November 21, 2011 to File Answer to Complaint by Michael J. Ashe, Patricia Murphy.(McDonough, Edward) (Entered: 11/15/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 5 Motion for Extension of Time to Answer re 1 Complaint Michael J. Ashe answer due 11/21/2011; Patricia Murphy answer due 11/21/2011. (Finn, Mary) (Entered: 11/15/2011)
6 Assented to MOTION for Extension of Time to November 28, 2011 to File Answer by Michael J. Ashe, Patricia Murphy.(McDonough, Edward) (Entered: 11/23/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 6 Motion for Extension of Time to Answer re 1 Complaint Michael J. Ashe answer due 11/28/2011; Patricia Murphy answer due 11/28/2011. (Finn, Mary) (Entered: 11/23/2011)
7 Defendants' ANSWER to 1 Complaint with Jury Demand by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McDonough, Edward) (Entered: 11/28/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: Full Pretrial, No Dispositive Motions (ptn). Further information: for a Rule 16 Scheduling Conf..(Finn, Mary) (Entered: 11/29/2011)
8 NOTICE of Scheduling Conference ISSUED, cc:cl. Scheduling Conference set for 1/26/2012 at 11:30 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. Joint Statement and LR 16.1 certs by 1/23/12. (Healy, Bethaney) (Entered: 12/12/2011)

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01/19/2012 01/23/2012 01/23/2012 01/23/2012 01/24/2012 01/26/2012
02/07/2012 02/07/2012 02/07/2012 02/07/2012 03/06/2012
03/15/2012
03/28/2012 03/28/2012 03/29/2012

9 CERTIFICATION pursuant to Local Rule 16.1 by Michael J. Ashe, Patricia Murphy.(McDonough, Edward) (Entered: 01/19/2012)
10 JOINT STATEMENT re scheduling conference . (Milton, David) (Entered: 01/23/2012)
11 CERTIFICATION pursuant to Local Rule 16.1 for Debra Baggett. (Milton, David) (Entered: 01/23/2012)
12 CERTIFICATION pursuant to Local Rule 16.1 for April Marlborough. (Milton, David) (Entered: 01/23/2012)
13 MOTION for Discovery of CORI by Debra Baggett, April Marlborough.(Milton, David) (Entered: 01/24/2012)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Scheduling Conference held on 1/26/2012. Further Scheduling Conference set for 3/12/12 at 3:00 p.m. Parties are interested in utilizing the court's ADR program. Clerk to make arrangements for mediation date. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Milton, Friedman, McDonough, Day) (Healy, Bethaney) (Entered: 02/06/2012)
Set/Reset Hearings: Further Scheduling Conference set for 3/12/2012 03:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Finn, Mary) (Entered: 02/07/2012)
14 Magistrate Judge Kenneth P. Neiman: ORDER REFERRING CASE to Alternative Dispute Resolution.(Healy, Bethaney) (Entered: 02/07/2012)
ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Scheduling Conference set for 3/29/2012 at 1:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 02/07/2012)
ELECTRONIC NOTICE of assignment to ADR Provider. Magistrate Judge Timothy S. Hillman appointed. The Court will contact counsel with regard to scheduling. (Franklin, Yvonne) (Entered: 02/07/2012)
ELECTRONIC NOTICE of Hearing. Alternative Dispute Resolution Hearing set for 3/20/2012 10:00 AM in Courtroom 1 − Worcester before Magistrate Judge Timothy S. Hillman. Counsel are directed to be present with their respective clients. The Court will hold a telephone conference with Counsel on 3/15/2012 09:30 AM in Courtroom 1 − Worcester. Counsel are to contact my Clerk, Lisa Belpedio, with their contact information in advance of that date. In addition, each party shall submit a brief memorandum addressing the party's position on the merits of the case and on settlement. This should be filed with my Clerk by e−mail at lisa_belpedio@mad.uscourts.gov no later than two (2) days before the Telephone Status Conference. The memorandum should be marked Confidential − Not for Docketing and will be held in confidence by the Court. If any party believes that the case is not ready for mediation at this time, please notify opposing counsel and the court as soon as possible.(Belpedio, Lisa) (Entered: 03/06/2012)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Timothy S. Hillman: Telephone Conference held on 3/15/2012. Case called, Counsel appear by telephone, Counsel discuss logistics of mediation. (Court Reporter: Digital Recording − 9:29 For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Milton, Friedman, McDonough) (Belpedio, Lisa) (Entered: 03/16/2012)
15 JOINT STATEMENT of counsel and proposed discovery schedule. (Milton, David) (Entered: 03/28/2012)
16 Joint MOTION for Protective Order by Michael J. Ashe, Debra Baggett, April Marlborough, Patricia Murphy. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 03/28/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 13 Plaintiffs' Motion to Permit Access to CORI Information, subject to the Protective Order to be entered, and granting as well 16 Joint Motion for Protective Order. Order

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03/29/2012
03/30/2012 03/30/2012 04/03/2012
04/03/2012 05/23/2012
05/23/2012 05/23/2012 05/23/2012 05/23/2012 06/04/2012
08/22/2012 08/22/2012 08/28/2012

to issue. (Neiman, Kenneth) (Entered: 03/29/2012)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Scheduling Conference held on 3/29/2012. Colloquy re: status of settlement. Schedule established with order to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Friedman, Milton, McDonough, Day) (Healy, Bethaney) (Entered: 03/30/2012)
17 REPORT of Alternative Dispute Resolution Provider (Belpedio, Lisa) (Entered: 03/30/2012)
18 Magistrate Judge Kenneth P. Neiman: PROTECTIVE ORDER ENTERED, cc:cl. (Healy, Bethaney) (Entered: 03/30/2012)
19 Magistrate Judge Kenneth P. Neiman: SCHEDULING ORDER ENTERED, cc:cl. Auto discl by 4/12/12; Ps' motion for class cert filed by 1/18/13; Ds' opp by 2/15/13, to which Ps shall reply by 3/1/13; hearing on motion for class cert set for 3/29/13 at 2:00 p.m. before Judge Michael A. Ponsor; all remaining fact disc (incl. 15 depos per side) compl by 5/24/13; Ps' expert discl re: liability experts, if any, by 6/21/13; Ds' expert discl re: liability experts, if any, by 7/19/13; expert depos compl by 8/16/13; Ds' S/J motion, if any, by 9/13/13; Ps' opp to Ds' motion, together with any cross−motion for S/J filed by 10/4/13, to which Ds may reply by 10/11/13; hearing on any motions for S/J set by 10/30/13 at 2:00 p.m. before Judge Michael A. Ponsor. (Healy, Bethaney) (Main Document 19 replaced on 4/4/2012) (Healy, Bethaney). Modified on 4/4/2012 (Healy, Bethaney). (Entered: 04/03/2012)
Set/Reset Hearings: Hearing re: motion for class certification set for 3/29/2013 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/03/2012)
20 MOTION for Extension of Time to June 22, 2012 to Respond to Plaintiffs' Interrogatories and Request for Production of Documents by Michael J. Ashe, Patricia Murphy.(McDonough, Edward) (Main Document 20 replaced on 5/23/2012 with correct signed motion) (Finn, Mary). Modified on 5/23/2012 (Finn, Mary). (Entered: 05/23/2012)
21 NOTICE of Appearance by Thomas E. Day on behalf of Michael J. Ashe, Patricia Murphy (Day, Thomas) (Entered: 05/23/2012)
22 MOTION to Compel by Debra Baggett, April Marlborough.(Milton, David) (Entered: 05/23/2012)
23 MEMORANDUM in Support re 22 MOTION to Compel filed by Debra Baggett, April Marlborough. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Milton, David) (Entered: 05/23/2012)
24 MEMORANDUM in Opposition re 20 MOTION for Extension of Time to June 22, 2012 to Respond to Plaintiffs' Interrogatories and Request for Production of Documents filed by Debra Baggett, April Marlborough. (Milton, David) (Entered: 05/23/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 20 Defendants' Motion for Extension of Time; although Defendants ought to have requested the extension before the time expired within which they were to respond to discovery, the court will nonetheless grant an extension, but to June 15, 2012, only. There shall be no further extensions. As a result, the court denies without prejudice 22 Plaintiffs' Motion to Compel. So ordered. (Neiman, Kenneth) (Entered: 06/04/2012)
25 Second MOTION to Compel by Debra Baggett, April Marlborough.(Milton, David) (Entered: 08/22/2012)
26 MEMORANDUM in Support re 25 Second MOTION to Compel filed by Debra Baggett, April Marlborough. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 08/22/2012)
27 Assented to MOTION for Extension of Time to 09/14/12 to File Response/Reply as to 25 Second MOTION to Compel by Michael J. Ashe, Patricia Murphy.(Day, Thomas)

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08/28/2012 09/14/2012 10/04/2012
12/07/2012 12/11/2012 12/14/2012 12/14/2012 01/08/2013 01/09/2013
01/09/2013 01/09/2013

(Entered: 08/28/2012)
28 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 27 Defendants' assented−to Motion for Extension of Time to September 14, 2012, to File Response to 25 Plaintiffs' Second Motion to Compel. So ordered. (Neiman, Kenneth) (Entered: 08/28/2012)
29 Opposition re 25 Second MOTION to Compel filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Affidavit Affidavit of Thomas E. Day in support of Defendants' Opposition to Plaintiff's Second Motion to Compel)(Day, Thomas) (Entered: 09/14/2012)
30 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 25 Plaintiffs' Second Motion to Compel, as follows. Defendants shall fully respond to Request No. 8 with regard to all incident reports requested to the extent not yet produced. With regard to Request No 9, Defendants shall provide, in addition to videos already produced, access to all videos (in which a female corrections officer held the video camera) for every third month beginning September of 2008 through the relevant three−and−one−half tear time period. In so ruling, the court finds that the scope of discovery is broader than what Defendants profess and that, for the various reasons set forth in Plaintiffs' motion, the discovery is potentially relevant to the claims of the putative class. The court also concludes that any privacy interests of the videotaped inmates would be more than adequately protected by the existing protective order. In limiting the discovery to every third month, however, the court recognizes the burdens placed on Defendants while ensuring that an appropriate sample of potential evidence is produced. Defendants shall produce the discovery no later than October 26, 2012. So ordered. (Neiman, Kenneth) (Entered: 10/04/2012)
31 ELECTRONIC NOTICE OF RESCHEDULING Hearing set for 3/28/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Hearing re: motion for class certification set for 3/29/2013 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor has been rescheduled.)(Pelegano, Theresa) (Entered: 12/07/2012)
32 Assented to MOTION for Hearing (to wit, a Status Conference) by Debra Baggett, April Marlborough.(Milton, David) (Entered: 12/11/2012)
33 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 32 Motion for Status Conference, cc:cl. Allowed. Counsel shall appear for a status conference on January 8, 2013, at 2:00 p.m. in Hampshire Courtroom. So ordered. (Healy, Bethaney) (Entered: 12/14/2012)
34 Set/Reset Hearings: Case Management Conference set for 1/8/2013 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 12/14/2012)
35 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Case Management Conference held on 1/8/2013. Colloquy re: status of case. Revised schedule to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Milton, Day) (Healy, Bethaney) (Entered: 01/08/2013)
36 Magistrate Judge Kenneth P. Neiman: REVISED SCHEDULING ORDER ENTERED, cc:cl. Ps' motion for class cert filed by 3/1/2013, with Ds' opp by 4/1/13, and Ps' reply by 4/15/13; a hearing on the motion for class certification is set for 5/2/13 at 2:00 p.m. before Judge Michael A. Ponsor (the 3/29/13 hearing is canceled); the remaining schedule set out in the 3/29/12 Scheduling Order shall stay in effect. (Healy, Bethaney) Modified on 1/9/2013 to correct the motion filing deadline to 3/1/2013. (Finn, Mary). (Entered: 01/09/2013)
37 Set/Reset Hearings: Hearing on Motion for Class Certification set for 5/2/2013 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/09/2013)
38 Set/Reset Deadlines: Ps' motion for classs certification due by 3/1/2013. (Finn, Mary) (Entered: 01/09/2013)

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03/01/2013 03/01/2013
03/01/2013 03/01/2013 03/01/2013
03/01/2013 03/01/2013 03/04/2013
03/04/2013
03/04/2013 03/05/2013 03/08/2013 03/08/2013 03/19/2013 03/20/2013 03/21/2013 03/22/2013

39 Assented to MOTION for Leave to File Under Seal by Debra Baggett, April Marlborough.(Milton, David) (Entered: 03/01/2013)
40 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 39 Motion for Leave to File Under Seal motion for class certification, memorandum in support, exhibits and declaration, Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 03/01/2013)
41 MOTION to Certify Class under Rule 23(b)(3) by Debra Baggett.(Milton, David) (Entered: 03/01/2013)
42 MEMORANDUM in Support re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. (Milton, David) (Entered: 03/01/2013)
43 AFFIDAVIT of David Milton in Support re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (not filed on ECF), # 7 Exhibit 7 (not filed on ECF), # 8 Exhibit 8 (not filed on ECF), # 9 Exhibit 9 (not filed on ECF))(Milton, David) (Entered: 03/01/2013)
44 AFFIDAVIT of Expert Wendy Still in Support re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. (Attachments: # 1 Exhibit A)(Milton, David) (Entered: 03/01/2013)
45 AFFIDAVIT of Howard Friedman in Support re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. (Friedman, Howard) (Entered: 03/01/2013)
46 Set/Reset Deadlines as to 41 MOTION to Certify Class under Rule 23(b)(3). Responses due by 4/1/2013 Replies due by 4/15/2013. Motion Hearing set for 5/2/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 03/04/2013)
ELECTRONIC NOTICE issued requesting courtesy copy for 43 Affidavit in Support of Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by March 8, 2013. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Finn, Mary) (Entered: 03/04/2013)
Remark − #'s 47 − 50 placed in the vault due to being sealed. (Finn, Mary) (Entered: 03/04/2013)
Remark − Courtesy copy of document 43 − UNREDACTED VERSION received and placed in the vault. (Finn, Mary) (Entered: 03/05/2013)
51 Third MOTION to Compel by Debra Baggett, April Marlborough.(Milton, David) (Entered: 03/08/2013)
52 MEMORANDUM in Support re 51 Third MOTION to Compel filed by Debra Baggett, April Marlborough. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Milton, David) (Entered: 03/08/2013)
53 Joint MOTION for Protective Order (Supplement to Existing Protective Order) by Debra Baggett, April Marlborough. (Attachments: # 1 Text of Proposed Order)(Milton, David) (Entered: 03/19/2013)
54 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 53 Joint Motion for Protective Order. Order to enter. (Neiman, Kenneth) (Entered: 03/20/2013)
55 Magistrate Judge Kenneth P. Neiman: PROTECTIVE ORDER ENTERED, cc:cl. (Healy, Bethaney) (Entered: 03/21/2013)
56 RESPONSE to Motion re 51 Third MOTION to Compel filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 03/22/2013)

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03/22/2013
03/25/2013
03/25/2013
04/08/2013
04/10/2013 04/11/2013 04/11/2013 04/11/2013
04/11/2013 04/11/2013 04/17/2013 04/17/2013 04/17/2013 04/24/2013 04/24/2013 04/29/2013

57 MOTION for Extension of Time to April 15, 2013 to File Response/Reply as to 41 MOTION to Certify Class under Rule 23(b)(3) and Plaintiff's Reply Brief to Defendants' Opposition and MOTION to continue the May 2, 2013 Motion Hearing by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Main Document 57 replaced on 3/25/2013 with correct main document and Added an additional relief = MOTION to Continue on 3/25/2013 (Finn, Mary). (Entered: 03/22/2013)
58 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 51 Plaintiffs' Third Motion to Compel in light of Defendants' representation that they have no objection to provide additional information beyond that already provided within seven days. Accordingly, Defendants shall provide the additional discovery by April 1, 2013. So ordered. (Neiman, Kenneth) (Entered: 03/25/2013)
59 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 57 Defendants' Motion for Extension of Time to File Opposition to Motion for Class Certification. The opposition shall be filed by April 10, 2013, with a reply, if any, filed by April 24, 2013. The hearing shall go forward as scheduled on May 2, 2013. So ordered. (Neiman, Kenneth) (Entered: 03/25/2013)
60 MOTION to Quash or MOTION to Modify Subpoena of Plaintiffs and MOTION to Intervene by Department of Correction for the State of Massachusetts. (Attachments: # 1 Exhibit 1,2)(Poole, C.). Added an additional relief MOTION to Intervene on 4/8/2013. Added an additional relief − MOTION to Modify on 4/17/2013 (Finn, Mary). (Entered: 04/08/2013)
61 Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 04/10/2013)
62 MEMORANDUM in Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 04/11/2013)
63 AFFIDAVIT of Vaughan in Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 04/11/2013)
64 AFFIDAVIT of Murphy in Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Day, Thomas) (Entered: 04/11/2013)
65 AFFIDAVIT of Day in Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 04/11/2013)
66 AFFIDAVIT of Burke in Opposition re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 04/11/2013)
67 Assented to MOTION for Protective Order (motion to permit non−party Middlesex Sheriff's Department to produce documents subject to protective order) by Debra Baggett.(Milton, David) (Entered: 04/17/2013)
68 Opposition re 60 MOTION to Quash or Modify Subpoena of Plaintiffs MOTION to Intervene filed by Debra Baggett. (Milton, David) (Entered: 04/17/2013)
69 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 67 assented−to Motion for Protective Order. So ordered. (Neiman, Kenneth) (Entered: 04/17/2013)
70 REPLY to Response to 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. (Milton, David) (Entered: 04/24/2013)
71 DECLARATION re 70 Reply to Response to Motion by Debra Baggett. (Milton, David) (Entered: 04/24/2013)
72 Joint MOTION for Extension of Time to Complete Discovery by Debra Baggett.(Milton, David) (Entered: 04/29/2013)

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04/29/2013 04/29/2013 04/30/2013 04/30/2013 05/02/2013 05/02/2013
05/02/2013 05/13/2013 05/15/2013 05/15/2013 05/15/2013 05/21/2013 05/22/2013

73 MOTION for a View on May 2, 2013 prior to hearing on Plaintiffs' Motion to Certify Class by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/29/2013)
74 Opposition re 73 MOTION for a View on May 2, 2013 prior to hearing on Plaintiffs' Motion to Certify Class filed by Debra Baggett. (Milton, David) (Entered: 04/29/2013)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 72 Joint Motion for Extend Discovery. ALLOWED. The proposed schedule is hereby adopted as an order of the court. So ordered. (Lindsay, Maurice) (Entered: 04/30/2013)
75 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 73 Motion for a View. DENIED without prejudice. The court is not available prior to the hearing. A view may be arranged afterwards, if appropriate. So ordered. (Lindsay, Maurice) (Entered: 04/30/2013)
76 Assented to MOTION To Withdraw April Marlborough as Representative of Putative Class by Debra Baggett.(Milton, David) (Entered: 05/02/2013)
77 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 60 the Massachusetts Department of Correction ("MDOC")'s Motion to Intervene and Motion to Quash or Modify Subpoena of Plaintiffs. As an initial matter, the requests for intervention and to entirely quash the subpoena are DENIED. The request for Modification of the subpoena, however, is GRANTED, but in part only, as follows. First, this order shall apply to all three state correctional institutions which are the subject of the subpoena. Second, Plaintiffs and MDOC shall forthwith enter into a Protective Order substantially if not entirely similar to the protective order which applies to Plaintiffs and Defendants. Third, by May 9, 2013, and subject to the further provisos below, MDOC shall produce the public policies and procedures to Plaintiffs. Fourth, by May 16, 2013, MDOC shall produce to Plaintiffs the private policies, i.e., staff access only policies, and the post orders to Plaintiffs, subject to the further provisos below. Fifth, notwithstanding the protective order, MDOC may redact from the private policies and post orders such material as falls entirely outside the subject matter of Schedule A of the subpoena, on the further condition, however, that the general subject matter of the redacted portions shall be described to Plaintiffs by MDOC; Plaintiffs are free to challenge those redactions at a later date.. Sixth, MDOC need only produce current policies and procedures (whether public or private) and post orders of an institution if those policies, procedures and/or post orders, as applicable, are accompanied by an affidavit which indicates that they have not materially changed since September of 2008. So ordered. (Neiman, Kenneth) (Entered: 05/02/2013)
78 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 5/2/2013 re 41 MOTION to Certify Class under Rule 23(b)(3) filed by Debra Baggett. Argument completed. Court takes matter under advisement. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Milton, Friedman, Day) (Pelegano, Theresa) (Entered: 05/02/2013)
79 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 76 Motion to Withdraw April Marlborough as Representative of Putative Class. ALLOWED. (Lindsay, Maurice) (Entered: 05/13/2013)
80 Fourth MOTION to Compel by Debra Baggett.(Milton, David) (Entered: 05/15/2013)
81 MEMORANDUM in Support re 80 Fourth MOTION to Compel filed by Debra Baggett. (Milton, David) (Entered: 05/15/2013)
82 NOTICE of Withdrawal of Appearance by Edward J. McDonough, Jr (McDonough, Edward) (Entered: 05/15/2013)
83 Joint MOTION for Protective Order by Debra Baggett, Department of Correction for the State of Massachusetts. (Attachments: # 1 Proposed Protective Order)(Milton, David) (Entered: 05/21/2013)
84 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 83 Joint Motion for Protective Order. Order to issue. (Neiman, Kenneth) (Entered: 05/22/2013)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 10 of 23

05/22/2013 05/23/2013
05/23/2013 05/23/2013 05/23/2013 05/29/2013 05/30/2013 05/30/2013
05/30/2013
05/31/2013 05/31/2013

85 Magistrate Judge Kenneth P. Neiman: ORDER entered. PROTECTIVE ORDER Governing Documents Produced by Non−Party Mass. Dept. of Correction. See the attached order for details. (Attachments: # 1 Attachment A)(Lindsay, Maurice) (Entered: 05/22/2013)
86 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memo and order, Plaintiffs Motion for Class Certification (Dkt. No. 41 ) is hereby ALLOWED. The pretrial phase of the case will continue to unfold, under the supervision of Magistrate Judge Kenneth P. Neiman, in accordance with the revised scheduled order entered on January 9, 2013 (Dkt. No. 36), as modified by the parties joint motion (Dkt. No. 72), adopted by the court on April 30, 2013. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 05/23/2013)
87 MOTION for Protective Order Pursuant to Rule 26(c) by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 05/23/2013)
88 MEMORANDUM in Support re 87 MOTION for Protective Order Pursuant to Rule 26(c) filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit 1)(Day, Thomas) (Entered: 05/23/2013)
89 AFFIDAVIT of Thomas E. Day, Esq. in Support re 87 MOTION for Protective Order Pursuant to Rule 26(c) filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Day, Thomas) (Entered: 05/23/2013)
90 Opposition re 87 MOTION for Protective Order Pursuant to Rule 26(c) filed by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 05/29/2013)
91 Opposition re 80 Fourth MOTION to Compel filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Entered: 05/30/2013)
92 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 80 Plaintiffs' Fourth Motion to Compel, as follows. The motion is ALLOWED largely without objection with regard to Paragraphs 1 (although it is somewhat confusing as to how many videos remain to be produced), 2, 3 (as to the video for the one move of Jane Doe to higher security), and 4 (with the understanding that Defendants represent there are no additional responsive documents). The documents, etc. ordered to be produced shall be provided Plaintiffs no later than June 7, 2013, together with a written explanation as to Defendants' efforts to locate further responsive documents. The motion is DENIED with regard to Paragraph 5 for the reasons set forth in 91 Defendants' opposition. So ordered. (Neiman, Kenneth) (Entered: 05/30/2013)
93 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered denying 87 Defendants' Motion for Protective Order. First, the court sees no reason to preclude Plaintiffs from taking video depositions in accord with Fed.R.Civ.P. 30(b)(3). Second, the court has not been persuaded that a protective order of the sort requested is necessary given Plaintiffs' representations that they have no present intention to disseminate the videos publicly. That said, should Plaintiffs change their mind, they are cautioned "that the decision to publicize any recording, on the internet or otherwise, may be regarded as an effort to taint the jury pool in advance of trial." Capitol Records v. Alaujan, 2009 WL 5873130 *2 (D.Mass. June 16, 2009). That caution should be heeded here in particular given Plaintiffs' previous steps to publicize this case. So ordered. (Neiman, Kenneth) (Entered: 05/30/2013)
94 Transcript of Motion Hearing held on May 2, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 6/21/2013. Redacted Transcript Deadline set for 7/1/2013. Release of Transcript Restriction set for 8/29/2013. (Scalfani, Deborah) (Entered: 05/31/2013)
95 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/31/2013)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 11 of 23

07/16/2013 07/30/2013 07/31/2013 08/02/2013 08/06/2013
08/14/2013 08/21/2013 08/22/2013 08/30/2013 09/06/2013 09/09/2013 09/13/2013 09/16/2013

96 JUDGMENT of the USCA (13−8018). The petition for leave to appeal is denied. (Paine, Matthew) (Entered: 07/17/2013)
97 Assented to MOTION to Approve Class Notice by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 07/30/2013)
98 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 97 Plaintiffs' assented−to Motion for Approval of Notice to the Class. The date by which opt−outs must be received shall be seventy−five days from which the notices are mailed. So ordered. (Neiman, Kenneth) (Entered: 07/31/2013)
99 Assented to MOTION for Extension of Time to October 18, 2013 to Complete Discovery in Liability Phase and to November 29, 2013 for Plaintiff and December 31, 2013 for Defendants Expert Disclosure Dates by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 08/02/2013)
100 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 99 Defendants' assented−to Motion for Extension of Time, as follows: (1) all remaining fact discovery shall be completed by October 18, 2013; (2) Plaintiffs shall designate and disclose information regarding their liability experts, if any, as required by FED. R. CIV. P. 26(a)(2), by November 18, 2013; (3) Defendants shall designate and disclose information regarding their liability experts, if any, as required by FED. R. CIV. P. 26(a)(2), by December 18, 2013; (4) all expert depositions shall be completed by January 24, 2014; (5) Defendants shall file their summary judgment motion, if any, by February 21, 2014; (6) Plaintiffs' opposition to Defendants' motion, together with any crossmotion for summary judgment, shall be filed by March 14, 2014, to which Defendants may reply by March 28, 2014; (7) a hearing on any motions for summary judgment shall take place on Appril 16, 2014, at 2:00 p.m. before District Judge Michael A. Ponsor. THERE SHALL BE NO FURTHER EXTENSIONS. So ordered. (Neiman, Kenneth) Modified on 8/6/2013 (Lindsay, Maurice). (Entered: 08/06/2013)
101 Fifth MOTION to Compel and for additional relief by Debra Baggett.(Milton, David) (Entered: 08/14/2013)
102 MOTION by Debra Baggett to Withdraw 101 Fifth MOTION to Compel and for additional relief : Notice of Withdrawal of Motion (Milton, David) Modified on 8/21/2013 to convert this document into a pending motion. (Finn, Mary). (Entered: 08/21/2013)
103 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered withdrawing 101 Plaintiffs' Motion to Compel in light of 102 Plaintiffs' Motion to Withdraw, which the court allows. So ordered. (Neiman, Kenneth) (Entered: 08/22/2013)
104 First MOTION to Amend Answer by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit First Amended Answer, # 2 Affidavit Affidavit of T Day, # 3 Exhibit Exhibit 1 to Affidavit of T Day)(Day, Thomas) (Entered: 08/30/2013)
105 MOTION to Take Deposition from Rebecca Bermudez (a Person Confined in Prison) by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 09/06/2013)
106 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered denying without prejudice 105 Defendants' Motion to Take Deposition, Defendants having failed to comply with Local Rule 7.1(a)(2). So ordered. (Neiman, Kenneth) (Entered: 09/09/2013)
107 MEMORANDUM in Opposition re 104 First MOTION to Amend Answer filed by Debra Baggett. (Milton, David) (Entered: 09/13/2013)
108 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered denying 104 Defendants' Motion to Amend Answer so as to add an affirmative defense regarding the named plaintiff's and/or members of the class's failure to exhaust their administrative remedies. as assertedly required by 42 U.S.C. section 1997e(a), the Prison Litigation Reform Act ("PLRA"). Even putting aside Plaintiffs' argument that the PLRA does not apply here (which argument has merit), the court finds that Defendants' motion −− which comes nearly two years after Defendants filed their original answer to the complaint, almost eighteen months after the commencement of discovery, and a matter of weeks before the expiration of fact discovery on liability (a

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 12 of 23

09/19/2013 09/19/2013 10/15/2013 10/18/2013 10/22/2013 10/30/2013
10/30/2013
10/30/2013 11/05/2013 11/05/2013 11/05/2013 11/06/2013 11/06/2013 11/06/2013
11/12/2013

deadline extended at Defendants' request without any mention by them of this affirmative defense)−− was unduly delayed and will cause undue prejudice to Plaintiffs. In this regard, Defendants give no persuasive reason for delaying the invocation of such an affirmative defense, one with which they should have been familiar since the commencement of this action, and fail to fully appreciate the extensive additional discovery which would have to be undertaken were the motion allowed. At best, Defendants argue that, because of the relatively recent certification of the class, this defense is "only now applicable to the members of the class." As Plaintiffs assert, this argument has no weight; the complaint was filed as a class action and contained class allegations, affirmative defenses were "applicable" to class members all along, and Defendants understood this when they filed their answer and included other affirmative defenses explicitly directed toward the "alleged class." (Neiman, Kenneth) (Entered: 09/16/2013)
109 Assented to MOTION to Take Deposition from Rebecca Bermudez a Person Confined in Prison by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 09/19/2013)
110 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 109 Defendants' assented−to Motion to Take Deposition. So ordered. (Neiman, Kenneth) (Entered: 09/19/2013)
111 NOTICE of Appearance by Theresa M.S. Finnegan on behalf of Michael J. Ashe (Finnegan, Theresa) (Entered: 10/15/2013)
112 Assented to MOTION for Extension of Time to October 25, 2013 to Complete Discovery by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 10/18/2013)
113 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 112 assented−to Motion for Extension of Time. So ordered. (Neiman, Kenneth) (Entered: 10/22/2013)
114 MOTION to Determine the Sufficiency of Defendants' Answers to Requests for Admission or in the alternative MOTION to Compel Defts' to ans. requests within seven days by Debra Baggett.(Milton, David). Added an additonal relief − MOTION to Compel on 11/12/2013 (Finn, Mary). (Entered: 10/30/2013)
115 AFFIDAVIT of David Milton in Support re 114 MOTION to Determine the Sufficiency of Defendants' Answers to Requests for Admission filed by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Milton, David) (Entered: 10/30/2013)
116 MEMORANDUM in Support re 114 MOTION to Determine the Sufficiency of Defendants' Answers to Requests for Admission filed by Debra Baggett. (Milton, David) (Entered: 10/30/2013)
117 Sixth MOTION to Compel by Debra Baggett.(Milton, David) (Entered: 11/05/2013)
118 MEMORANDUM in Support re 117 Sixth MOTION to Compel filed by Debra Baggett. (Milton, David) (Entered: 11/05/2013)
119 DECLARATION re 117 Sixth MOTION to Compel by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Milton, David) (Entered: 11/05/2013)
120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery by Debra Baggett.(Milton, David) (Entered: 11/06/2013)
121 MEMORANDUM in Support re 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery filed by Debra Baggett. (Milton, David) (Entered: 11/06/2013)
122 DECLARATION re 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Milton, David) (Entered: 11/06/2013)
123 Assented to MOTION for Extension of Time to December 18, 2013 to complete Plaintiffs expert disclosures, and to extend all subsequent deadlines by Debra Baggett.(Milton, David) (Entered: 11/12/2013)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 13 of 23

11/14/2013
11/15/2013 11/15/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013
11/19/2013 11/19/2013 11/27/2013 11/28/2013 12/02/2013 12/04/2013

124 Opposition re 114 MOTION to Determine the Sufficiency of Defendants' Answers to Requests for Admission MOTION to Compel filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Affidavit Thomas E. Day, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Day, Thomas) (Attachment 2 replaced on 11/14/2013 due to containing confidential material and Main Document− 124 replaced on 11/15/2013 due to containing confidential material.) (Finn, Mary). Modified on 11/15/2013 (Finn, Mary). (Entered: 11/14/2013)
125 Assented to MOTION to Seal Document 124 Opposition to Motion, to Determine Sufficiency by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Main Document 125 replaced on 11/15/2013) (Finn, Mary). (Entered: 11/15/2013)
126 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 125 Motion to Seal the opposition and exhibit B to document 124 . Counsel to e−mail redacted versions of these documents to be replaced by the Clerk's Office and will manually file the un−redacted versions of the opposition and exhibit B. (Finn, Mary) (Entered: 11/15/2013)
127 Assented to MOTION for Leave to File a reply to Defendants opposition to Plaintiffs Motion to Determine the Sufficiency of Defendants Responses to Plaintiffs Requests for Admission by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 11/19/2013)
128 Assented to MOTION to Seal (contingent upon the Courts allowance of Plaintiffs Motion for Leave to File a Reply [ECF # 127]) by Debra Baggett.(Milton, David) (Entered: 11/19/2013)
129 Assented to MOTION for Extension of Time to 11/27/2013 to File Response/Reply as to 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery, 117 Sixth MOTION to Compel by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 11/19/2013)
130 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 127 Motion for Leave to File Document. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting 128 Motion to Seal; granting 129 Motion for Extension of Time to File Response/Reply re 117 Sixth MOTION to Compel , 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery. Defts' Responses due by 11/27/2013 re: 117 and 120 . (Finn, Mary) (Entered: 11/19/2013)
131 REPLY to Response to 114 MOTION to Determine the Sufficiency of Defendants' Answers to Requests for Admission MOTION to Compel filed by Debra Baggett. (Milton, David) (Entered: 11/19/2013)
132 DECLARATION re 131 Reply to Response to Motion by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 (under seal), # 4 Exhibit 4 (under seal), # 5 Exhibit 5, # 6 Exhibit 6 (under seal))(Milton, David) (Entered: 11/19/2013)
134 Opposition re 117 Sixth MOTION to Compel filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Affidavit Thomas E. Day, # 2 Affidavit J. John Ashe, # 3 Affidavit John T. Milosovich)(Day, Thomas) (Entered: 11/27/2013)
135 Opposition re 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Affidavit Thomas E. Day, # 2 Exhibit, # 3 Exhibit, # 4 Affidavit Patricia Murphy, # 5 Affidavit Connie Burke, # 6 Affidavit Tony Bryant, # 7 Affidavit Zelia Goncalves)(Day, Thomas) (Entered: 11/28/2013)
136 Assented to MOTION for Leave to File a reply to Defendants' opposition to Plaintiffs' Sixth Motion to Compel by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 12/02/2013)
137 Assented to MOTION for Leave to File a reply to Defendants' opposition to Plaintiffs' Motion to Strike by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 12/04/2013)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 14 of 23

12/06/2013
12/06/2013 12/06/2013 12/06/2013 12/06/2013
12/06/2013
12/06/2013
12/06/2013 12/06/2013 12/09/2013

138 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 136 Plaintiffs' assented−to Motion for Leave to File Reply. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. So ordered. (Neiman, Kenneth) (Entered: 12/06/2013)
139 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered with regard to 117 Plaintiffs' motion to compel. By December 11, 2013, Defendants shall provide for the court's in camera review copies under seal of the seven emails at issue. So ordered. (Neiman, Kenneth) (Entered: 12/06/2013)
140 REPLY to Response to 117 Sixth MOTION to Compel filed by Debra Baggett. (Milton, David) (Entered: 12/06/2013)
141 DECLARATION re 140 Reply to Response to Motion by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 12/06/2013)
142 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 114 Plaintiffs' Motion to Determine the Sufficiency of Defendants' Answers to Requests for Admissions; having undertaken the task, the court concludes that the answers are sufficient in light of the overly burdensome task to which Defendants would be subjected were they required to further determine the accuracy of Plaintiffs' requests. That said, the court denies so much of 114 Plaintiffs' Motion which seeks to compel further answers. So ordered. (Neiman, Kenneth) (Entered: 12/06/2013)
143 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 137 Plaintiffs' assented−to Motion for Leave to File Reply; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. So ordered. (Neiman, Kenneth) (Entered: 12/06/2013)
144 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part only 123 Plaintiffs' assented−to Motion for Extension of Time, as follows: (1) Plaintiffs shall designate and disclose information regarding their liability experts, if any, as required by FED. R. CIV. P. 26(a)(2), by December 18, 2013; (2) Defendants shall designate and disclose information regarding their liability experts, if any, as required by FED. R. CIV. P. 26(a)(2), by January 10, 2014; and (3) all expert depositions shall be completed by January 31, 2014. All the remaining dates set forth in 100 the court's electronic ruling of August 6, 2013, shall remain unaltered. So ordered. (Neiman, Kenneth) (Entered: 12/06/2013)
145 Set/Reset Scheduling Order Deadlines: Ps' designatgion and discl. re: experts, if any, by 12/18/2013. Defts' by 1/10/2014. Discovery re: all expert depos. to be completed by 1/31/2014. (Finn, Mary) Modified on 12/6/2013 to add text to the entry. (Finn, Mary). (Entered: 12/06/2013)
146 REPLY to Response to 120 MOTION to Strike witnesses and documents identified in disclosures made after the close of discovery filed by Debra Baggett. (Milton, David) (Entered: 12/06/2013)
147 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 120 Plaintiffs' Motion to Strike Witnesses and Documents Identified in Disclosures Made After the Close of Discovery, as follows. The motion is ALLOWED without objection with regard to witness DeCou. The motion is also ALLOWED with regard to the following witnesses: Bernardi−Agnes, Connor, Harriman, Lyman, Pfister and Pratt. In so ruling, the court finds first that Defendants' justification for the late disclosure is unconvincing; all of these individuals were known to Defendants for quite some time as having information with regard to this action but nonetheless were not disclosed. Second, the fact that some of their names may have appeared in the thousands of pages of documents does not amount to appropriate disclosures; indeed, Defendants themselves indicate that several of these witnesses' names may have appeared only once or twice, others not at all, and yet others a bit more often but with no explanation of the context of those occasions. (See Opposition (Document No. 135) at pages 3 through 5.) Third, Defendants' assertion that the broad−based disclosures in their October 5, 2012 Supplemental Automatic

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 15 of 23

12/11/2013
12/11/2013 12/12/2013 02/20/2014 02/20/2014
02/20/2014 02/20/2014

Disclosures would suffice is particularly unpersuasive; as Plaintiffs argue, this approach to disclosure would not only violate Rule 26(a)(1) but swallow it whole. Fourth, Defendants' argument to the contrary, these late disclosures would in fact adversely affect not only Plaintiffs' ability to complete appropriate discovery but would inappropriately extend the court's management of this litigation. And fifth, Defendants' argument that most of these witnesses "are likely of only tangential import to this case" (Defendants' Opposition at page 1) actually mitigates against, not for, their being included as witnesses, to wit, there is apparently less need for the precluded evidence than Defendants might otherwise argue. The motion, however, is DENIED with regard to witnesses Blair, Laurens, Morales, but only in their capacities as former inmates at the facility. Given some of Plaintiffs' deposition testimony, Defendants should have the opportunity to present these three individuals as witnesses, subject to Defendants paying the costs of any depositions which Plaintiffs may wish to take of them. The motion is also DENIED with respect to certain HCCC Policies and Procedures, it appearing to the court that these documents are either the same as or closely related to documents previously produced by Defendants. In contrast, the motion is ALLOWED with regard to audits by the American Correctional Association and the Department of Correction prior to 2008, the court concluding that these documents ought to have been revealed earlier insofar as they may have influenced the procedures utilized by Defendants and at issue in this case. In so ruling, the court acknowledges that Plaintiffs have acceded to yet other late disclosures which are not at issue. So ordered. (Neiman, Kenneth) (Entered: 12/09/2013)
148 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 117 Plaintiffs' Motion to Compel. Although Defendants did not waive their right to object to the disclosure, the court concludes, after reviewing the seven emails in question, that the documents are not protected by either an attorney−client privilege or the work−product doctrine and, further, are not evidence related to an expert under Fed. R. Civ. P. 26(b)(4)(D). Mr. Milosovich was identified by Defendants as a fact witness, was deposed in that capacity without objection, and the emails are potentially relevant to that testimony, even though Defendants now assert that the emails are of little import to this case. (See Defendants' Opposition (Document No. 134) at page 1.) The documents will remain under seal by the court (as discovery materials) but shall be forthwith provided to Plaintiffs by Defendants. So ordered. (Neiman, Kenneth) (Entered: 12/11/2013)
149 Assented to MOTION for Reconsideration re 144 Order on Motion for Extension of Time,, to File Liability Expert Disclosures by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 12/11/2013)
150 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 149 Defendants' assented−to Motion for Reconsideration. So ordered. (Neiman, Kenneth) (Entered: 12/12/2013)
152 Assented to MOTION for Leave to File Brief in Excess of 20 Pages by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 02/20/2014)
153 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 152 Motion for Leave to File Memorandum in excess of twenty (20) pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 02/20/2014)
154 Assented to MOTION for Leave to File Under Seal and to Manually File Exhibits to Defendants Statement of Undisputed Material Facts by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 02/20/2014)
155 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 154 Motion for Leave to File Documents under seal and manually with the Court. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 02/20/2014)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 16 of 23

02/21/2014 02/21/2014 02/21/2014 02/21/2014 02/21/2014 02/21/2014 02/21/2014 03/12/2014 03/13/2014
03/18/2014 03/18/2014 03/19/2014
03/19/2014 03/19/2014
03/19/2014 03/19/2014

156 MOTION for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 02/21/2014)
157 Set/Reset Deadlines as to 156 MOTION for Summary Judgment . Pltfs' Responses due by 3/14/2014. Motion Hearing set for 4/16/2014 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 02/21/2014)
158 Set/Reset Deadlines: Pltfs' Cross Motion for S/J due by 3/14/2014. Defts' opposition due by 3/28/2014. (Finn, Mary) (Entered: 02/21/2014)
159 MEMORANDUM in Support re 156 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A)(Day, Thomas) (Main Document 159 replaced on 2/26/2014 with correct memorandum) (Finn, Mary). Modified on 2/26/2014 (Finn, Mary). (Entered: 02/21/2014)
160 Statement of Material Facts L.R. 56.1 re 156 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) (Main Document 160 replaced on 2/24/2014 with correct main document) (Finn, Mary). Modified on 2/24/2014 (Finn, Mary). (Entered: 02/21/2014)
161 NOTICE OF MANUAL FILING by Michael J. Ashe, Patricia Murphy OF EXHIBITS TO STATEMENT OF UNDISPUTED MATERIAL FACTS (Day, Thomas) (Entered: 02/21/2014)
164 EXHIBITS A−D1−15, E−J1−7, K1−3,L−N re 162 Statement of Material Facts L.R. 56.1, 160 Statement of Material Facts L.R. 56.1 by Michael J. Ashe, Patricia Murphy. (Finn, Mary) (Entered: 02/24/2014)
165 Assented to MOTION for Extension of Time to March 19, 2014 to File Summary Judgment Opposition and Cross−Motion by Debra Baggett.(Milton, David) (Entered: 03/12/2014)
166 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 165 Plaintiffs' assented−to Motion for Extension of Time, as follows: Plaintiffs' opposition and cross−motion shall be filed by March 19, 2014, and Defendants' response/reply will be filed by April 2, 2014. THERE SHALL BE NO FURTHER EXTENSIONS. So ordered. (Neiman, Kenneth) (Entered: 03/13/2014)
167 Assented to MOTION for Leave to File Under Seal by Debra Baggett.(Milton, David) (Entered: 03/18/2014)
168 Assented to MOTION for Leave to File Excess Pages by Debra Baggett.(Milton, David) (Entered: 03/18/2014)
169 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 167 Motion for Leave to File Documents under seal. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting 168 Motion for Leave to File Document in excess of twenty (20) pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 03/19/2014)
170 Opposition re 156 MOTION for Summary Judgment filed by Debra Baggett. (Milton, David) (Entered: 03/19/2014)
171 MOTION for Summary Judgment or. in the alternative, MOTION for Partial Summary Judgment on the issue of whether an emergency or any other legitimate penological interest justified assigning males to videotape strip searches by Debra Baggett.(Milton, David). Added an additional relief MOTION for Miscellaneour Relief on 3/20/2014 (Finn, Mary). (Entered: 03/19/2014)
172 MEMORANDUM in Support re 171 MOTION for Summary Judgment filed by Debra Baggett. (Milton, David) (Entered: 03/19/2014)
173 Statement of Material Facts L.R. 56.1 re 171 MOTION for Summary Judgment filed by Debra Baggett. (Milton, David) (Entered: 03/19/2014)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 17 of 23

03/19/2014 03/19/2014
03/19/2014 03/20/2014 03/21/2014 03/21/2014
03/26/2014 03/26/2014 04/01/2014 04/01/2014 04/01/2014 04/02/2014
04/02/2014

174 Counter Statement of Material Facts L.R. 56.1 re 160 Statement or Material Facts L.R. 56.1 re: 156 Motion for Summary Judgment filed by Debra Baggett. (Milton, David) Modified on 3/20/2014 to link to document 160 , not 156 . (Finn, Mary). (Entered: 03/19/2014)
175 DECLARATION re 171 MOTION for Summary Judgment of David Milton by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37)(Milton, David) (Entered: 03/19/2014)
176 DECLARATION re 171 MOTION for Summary Judgment by Carmen Guhn−Knight by Debra Baggett. (Attachments: # 1 Exhibit A)(Milton, David) (Entered: 03/19/2014)
177 Set/Reset Deadlines as to 171 MOTION for Summary Judgment . Defts responses due by 4/2/2014. (Finn, Mary) (Entered: 03/20/2014)
184 Response by Debra Baggett to the Defts' 160 Statement of Material Facts L.R. 56.1 filed. (Finn, Mary) (Entered: 03/21/2014)
185 ELECTRONIC NOTICE Resetting Hearing on Motion 156 MOTION for Summary Judgment , 178 MOTION for Summary Judgment MOTION for Partial Summary Judgment on the issues of whether an emergency or any other legitimate penological interest justified assigning males to videotape strip searches, 171 MOTION for Summary Judgment : Motion Hearing set for 4/22/2014 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. The hearing on 4/16/14 has been rescheduled.(Pelegano, Theresa) (Entered: 03/21/2014)
186 MOTION to Strike 164 Exhibit K paragraphs 37−48 by Debra Baggett.(Milton, David) (Entered: 03/26/2014)
187 MEMORANDUM in Support re 186 MOTION to Strike 164 Exhibit K paragraphs 37−48 filed by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 03/26/2014)
188 Assented to MOTION for Leave to File Excess Pages for Reply Brief to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/01/2014)
189 Assented to MOTION for Leave to File Excess Pages for Opposition to Plaintiffs' Motion for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/01/2014)
190 Assented to MOTION for Leave to File Under Seal Reply Brief to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/01/2014)
191 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 188 Motion for Leave to File Excess Pages − only to 30 pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting in part and denying in part 189 Motion for Leave to File Excess Pages − only to 35 pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 04/02/2014)
192 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 190 Motion for Leave to File Reply Brief Under Seal. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include −

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 18 of 23

04/02/2014
04/02/2014 04/02/2014 04/09/2014 04/10/2014 04/10/2014
04/10/2014 04/10/2014 04/17/2014 04/18/2014 04/21/2014 04/22/2014
04/25/2014

Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 04/02/2014)
193 REPLY to Response to 156 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Day, Thomas) (Entered: 04/02/2014)
194 Opposition re 171 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Day, Thomas) (Entered: 04/02/2014)
195 Counter Statement of Material Facts L.R. 56.1 in response to the Pltf's 173 Statement of Facts in support of their 171 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy. (Day, Thomas) Modified on 4/3/2014 to link to document 173 also. (Finn, Mary). (Entered: 04/02/2014)
201 Opposition re 186 MOTION to Strike 164 Exhibit K paragraphs 37−48 filed by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Affidavit Proposed Revised Affidavit of S. Van Wright)(Day, Thomas) (Entered: 04/09/2014)
202 Assented to MOTION for Leave to File A Reply to Defendants Opposition to Plaintiffs Motion for Summary Judgment by Debra Baggett.(Milton, David) (Entered: 04/10/2014)
203 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 202 assented−to Motion for Leave to File Reply, provided that the document is no more than ten pages in its entirety. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. So ordered. (Neiman, Kenneth) (Entered: 04/10/2014)
204 REPLY to Response to 171 MOTION for Summary Judgment filed by Debra Baggett. (Milton, David) (Entered: 04/10/2014)
205 DECLARATION re 204 Reply to Response to Motion by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Milton, David) (Entered: 04/10/2014)
206 MOTION for a View before or after oral argument on Motion for Summary Judgment re 156 MOTION for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/17/2014)
207 Opposition re 206 MOTION for a View before or after oral argument on Motion for Summary Judgment re 156 MOTION for Summary Judgment filed by Debra Baggett. (Milton, David) (Entered: 04/18/2014)
208 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 206 Motion for a View before or after oral argument on Motion for Summary Judgment. DENIED without prejudice, following oral argument the court may reconsider. So ordered. (Lindsay, Maurice) (Entered: 04/22/2014)
209 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 4/22/2014 re 171 MOTION for Summary Judgment filed by Debra Baggett, 156 MOTION for Summary Judgment filed by Michael J. Ashe, Patricia Murphy, 178 MOTION for Summary Judgment MOTION for Partial Summary Judgment on the issues of whether an emergency or any other legitimate penological interest justified assigning males to videotape strip searches filed by Debra Baggett. Argument completed. Motions taken under advisement. (Court Reporter: Carol Scott at 617−330−1377.)(Attorneys present: Milton, Friedman, Finnegan, Day) (Pelegano, Theresa) (Entered: 04/22/2014)
210 Assented to MOTION for Leave to File Affidavit of Dora B. Schriro in Support of Defendants' Motion for Summary Judgment by Michael J. Ashe, Patricia Murphy. (Attachments: # 1 Exhibit A)(Day, Thomas) (Entered: 04/25/2014)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 19 of 23

04/25/2014 04/25/2014 04/28/2014
04/28/2014 04/29/2014 05/09/2014 08/07/2014 08/26/2014
08/26/2014
08/27/2014 09/08/2014 09/09/2014 09/12/2014 09/17/2014

211 MOTION re 156 MOTION for Summary Judgment Renewed Motion for a View Prior to Decision on Motion for Summary Judgment by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/25/2014)
212 MOTION to Strike 175 Declaration,,, Portions of Expert Testimony of Wendy Still and Portions of Plaintiffs' Documents in Opposition to Defendants' Motion for Summary Judgment that Rely on those Portions of Ms. Still's Testimony by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 04/25/2014)
213 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 210 Defendants' assented−to Motion for Leave to File Affidavit. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. So ordered. (Neiman, Kenneth) (Entered: 04/28/2014)
214 AFFIDAVIT in Support re 156 MOTION for Summary Judgment OF DR. DORA SCHRIRO. (Day, Thomas) (Entered: 04/28/2014)
215 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 211 Defendant's Renewed Motion for a View. DENIED. (Lindsay, Maurice) (Entered: 04/29/2014)
216 Opposition re 212 MOTION to Strike 175 Declaration,,, Portions of Expert Testimony of Wendy Still and Portions of Plaintiffs' Documents in Opposition to Defendants' Motion for Summary Judgment that Rely on those Portions of Ms. Still's Testimon filed by Debra Baggett. (Milton, David) (Entered: 05/09/2014)
217 Judge Michael A. Ponsor: ELECTRONIC ORDER entered finding as moot 178 Motion for Summary Judgment, or in the alternative, for Partial Summary Judgment, as this motion is a duplicate of Plaintiffs' 171 Motion for Summary Judgment, or in the alternative, for Partial Summary Judgment. (Healy, Bethaney) (Entered: 08/07/2014)
219 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered, as follows: The court finds that Defendants' policy of permitting male guards to videotape strip searches, even if no viewing occurred, in non−emergency situations, violated the class members' constitutional rights and that no legitimate, penological interest justified it. Defendants' Motion for Summary Judgment (Dkt. No. 156) is hereby DENIED, and Plaintiffs' Motion for Summary Judgment (Dkt. No. 171) is hereby ALLOWED on the issue of liability. By September 9, 2014, Plaintiff shall submit a proposed schedule to address the questions of potential equitable relief and monetary damages. If Plaintiff's proposal is not assented to, Defendants may submit their counter−proposal by September 23, 2014. It is So Ordered. See the attached memorandum and order for full decision. (Kaplan, Jennifer) (Entered: 08/26/2014)
220 Judge Michael A. Ponsor: ELECTRONIC ORDER entered: The court hereby DENIES Motion to Strike (Dkt. No. 186) and DENIES Motion to Strike (Dkt. No. 212). The court did not rely upon the challenged portions in crafting its decision on the cross−motions for summary judgment. It is So Ordered. (Kaplan, Jennifer) (Entered: 08/26/2014)
221 Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Calderon, Melissa) (Entered: 08/27/2014)
222 MOTION for Extension of Time to 9/12/2014 to File Plaintiffs' Proposed Schedule to Address Equitable Relief and Damages by Debra Baggett.(Milton, David) (Entered: 09/08/2014)
223 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 222 Motion for Extension of Time. ALLOWED. (Lindsay, Maurice) Modified text on 9/10/2014 for clarification (Lindsay, Maurice). (Entered: 09/09/2014)
224 Recommendations for Scheduling Order by Plaintiffs. (Milton, David) (Entered: 09/12/2014)
225 NOTICE OF APPEAL as to 219 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief,,,,,,,,, by Michael J. Ashe, Patricia Murphy Filing fee: $ 505, receipt number 0101−5193581 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 20 of 23

09/18/2014 09/19/2014 09/26/2014 10/01/2014 10/02/2014 10/02/2014 10/03/2014 10/07/2014
10/20/2014 10/22/2014 12/01/2014
12/01/2014

Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 10/7/2014. (Day, Thomas) (Entered: 09/17/2014)
226 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 225 Notice of Appeal (Paine, Matthew) (Main Document 226 replaced on 9/18/2014) (Paine, Matthew). (Main Document 226 replaced on 9/18/2014) (Paine, Matthew). (Entered: 09/18/2014)
227 USCA Case Number 14−1974 for 225 Notice of Appeal filed by Michael J. Ashe, Patricia Murphy. (Paine, Matthew) (Entered: 09/19/2014)
228 Recommendations for Scheduling Order (Defendants' Counter−Proposal). (Day, Thomas) (Entered: 09/26/2014)
229 TRANSCRIPT ORDER FORM by Michael J. Ashe, Patricia Murphy for proceedings held on April 22, 2014 Judge Michael A. Ponsor. (Day, Thomas) (Main Document 229 replaced on 10/1/2014 with Transcript Order Form in the correct PDF format) (Finn, Mary). Modified on 10/1/2014 (Finn, Mary). (Entered: 10/01/2014)
230 TRANSCRIPT ORDER ACKNOWLEDGMENT FORM received from USCA and addressed to Carol Scott re 225 Notice of Appeal,,, Transcript order form filed in USCA on October 2, 2014. Transcript ordered: April 22, 2014 Motion for Summary Judgment. Transcript due by 12/1/2014. (Scalfani, Deborah) (Entered: 10/02/2014)
231 Assented to MOTION to Stay Proceedings on Damages Pending Appeal by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 10/02/2014)
232 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 231 Motion to Stay Proceedings pending Appeal. ALLOWED. The parties have submitted recommendations for further scheduling orders (Dkt. Nos 224 and 228) The court will take no action on these recommendations while the appeal is pending. So ordered. (Lindsay, Maurice) (Entered: 10/03/2014)
233 MOTION for Reconsideration re 219 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief,,,,,,,,, OF HOLDING ON SUMMARY JUDGMENT THAT PLAINTIFFS ARE ENTITLED TO TRIAL ON CLAIM THAT ACTUAL CROSS−GENDER VIEWING OF STRIP SEARCHES OCCURRED FOR WHICH DEFENDANTS WERE LEGALLY RESPONSIBLE by Michael J. Ashe, Patricia Murphy.(Day, Thomas) (Entered: 10/07/2014)
234 Opposition re 233 MOTION for Reconsideration re 219 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief,,,,,,,,, OF HOLDING ON SUMMARY JUDGMENT THAT PLAINTIFFS ARE ENTITLED TO TRIAL ON CLAIM THAT ACTUAL CROSS−GENDER VIEWING OF STRI filed by Debra Baggett. (Milton, David) (Entered: 10/20/2014)
235 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 233 Motion for Reconsideration. DENIED. This is not the extraordinary circumstance contemplated by rule 60(b). Moreover, reconsideration appears jurisdictionally barred in light of Defendant's appeal. So ordered. (Lindsay, Maurice) (Entered: 10/22/2014)
236 Transcript of Motion Hearing held on April 22, 2014, before Judge Michael A. Ponsor. COA Case No. 14−1974. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at 617−330−1377 Redaction Request due 12/22/2014. Redacted Transcript Deadline set for 1/1/2015. Release of Transcript Restriction set for 3/2/2015. (Scalfani, Deborah) (Entered: 12/01/2014)
237 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 21 of 23

03/03/2015 03/05/2015 03/05/2015 03/24/2015 03/31/2015
03/31/2015 03/31/2015 04/02/2015

(Entered: 12/01/2014)
238 Joint MOTION for Hearing re Preliminary Approval of Class Action Settlement by Debra Baggett.(Milton, David) (Entered: 03/03/2015)
239 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 238 Motion for Preliminary Fairness Hearing. A Preliminary Fairness Hearing is scheduled for April 9, 2015, at 10:00 a.m. in the Hampden Courtroom. (Healy, Bethaney) (Entered: 03/05/2015)
240 Set/Reset Hearings: Preliminary Fairness Hearing set for 4/9/2015 at 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 03/05/2015)
241 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. The Preliminary Settlement Hearing is moved to 4/9/2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. PLEASE NOTE CHANGE IN TIME ONLY. (Healy, Bethaney) (Entered: 03/24/2015)
242 Joint MOTION for Settlement Preliminary Approval by Debra Baggett. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit A to Settlement Agreement, # 3 Exhibit B to Settlement Agreement, # 4 Exhibit C to Settlement Agreement, # 5 Exhibit D to Settlement Agreement, # 6 Exhibit E to Settlement Agreement, # 7 Exhibit F to Settlement Agreement)(Milton, David) (Entered: 03/31/2015)
243 MEMORANDUM in Support re 242 Joint MOTION for Settlement Preliminary Approval submitted by Plaintiffs filed by Debra Baggett. (Attachments: # 1 Appendix Timeline)(Milton, David) (Entered: 03/31/2015)
244 AFFIDAVIT in Support re 242 Joint MOTION for Settlement Preliminary Approval −− Declaration of Howard Friedman filed by Debra Baggett. (Milton, David) (Entered: 03/31/2015)
245 ORDER of USCA as to 225 Notice of Appeal filed by Michael J. Ashe, Patricia Murphy.

ORDER entered by Juan R. Torruella, Appellate Judge: On March 3, 2015, the parties filed a Joint Motion for a Preliminary Fairness Hearing in the district court. On March 5, 2015, the district court granted the motion and scheduled a preliminary fairness hearing for April 9, 2015. On March 16, the parties filed a joint motion to remand this case to the district court for the purpose of holding preliminary and final settlement fairness hearings. We regard the district court's intention to schedule a fairness hearing as a sufficient statement that it believes that the parties' Joint Motion for a Preliminary Fairness Hearing "raises a substantial issue." Fed. R. Civ. P. 62.1(a)(3); see also Fed. R. App. P. 12.1(b). In view of the district court's March 5, 2015, order embodying that view, the case is remanded to the district court for proceedings consistent with that order. Jurisdiction is retained. Once the district court concludes its proceedings, then the parties should proceed in accordance with Fed. R. App. P. 42(b) or propose some other disposition. Appellants shall file a status report every 60 days.

04/09/2015
04/09/2015 04/10/2015 05/20/2015

(Paine, Matthew) (Entered: 04/02/2015)
246 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Hearing re Preliminary Settlement Approval held on 4/9/2015. Final Settlement Approval set for 9/10/15 at 11:00 a.m. (Court Reporter: James Gibbons at jmsgibbons@yahoo.com.)(Attorneys present: Milton, Friedman, Day, Finnegan) (Healy, Bethaney) (Entered: 04/10/2015)
266 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 242 Motion for Preliminary Approval of Class Action Settlement. Allowed in open court on April 9, 2015. (Healy, Bethaney) (Entered: 09/15/2015)
247 Set/Reset Hearings: Final Settlement Approval Hearing set for 9/10/2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/10/2015)
248 MOTION to Intervene As Plaintiff's by Tanya M Smith, Monica Vasquez, Angela McConnell, Wayne Albright, Sydney Decapiano, Amber Lambert.(Lindsay, Maurice)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 22 of 23

05/27/2015 05/28/2015 08/13/2015 08/14/2015
08/18/2015 08/18/2015 08/18/2015 08/18/2015 08/18/2015 08/18/2015 08/24/2015 08/27/2015 08/28/2015
08/28/2015
09/10/2015 09/10/2015

(Entered: 05/20/2015)
249 Opposition re 248 MOTION to Intervene filed by Debra Baggett. (Milton, David) (Entered: 05/27/2015)
250 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 248 Motion to Intervene. DENIED. A much more specific showing is required to satisfy rule 24. Moreover, records apparently suggest that the proposed intervenors are not proper plaintiffs. So ordered. (Lindsay, Maurice) (Entered: 05/28/2015)
251 Joint MOTION for Leave to File Three Class Members Objections Under Seal by Debra Baggett.(Milton, David) (Entered: 08/13/2015)
252 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 251 Joint Motion to File Three Class Members' Objections Under Seal; ALLOWED. Counsel should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Note: Counsel should mail the sealed hard copy to the clerks office and include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 08/14/2015)
253 Joint MOTION For Final Approval of Class Action Settlement by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Milton, David) (Entered: 08/18/2015)
254 MEMORANDUM in Support re 253 Joint MOTION For Final Approval of Class Action Settlement filed by Debra Baggett. (Milton, David) (Entered: 08/18/2015)
255 MOTION for Attorney Fees and Costs by Debra Baggett.(Milton, David) (Entered: 08/18/2015)
256 MEMORANDUM in Support re 255 MOTION for Attorney Fees and Costs filed by Debra Baggett. (Milton, David) (Entered: 08/18/2015)
257 DECLARATION re 253 Joint MOTION For Final Approval of Class Action Settlement , 255 MOTION for Attorney Fees and Costs by Debra Baggett. (Friedman, Howard) (Entered: 08/18/2015)
258 DECLARATION re 253 Joint MOTION For Final Approval of Class Action Settlement , 255 MOTION for Attorney Fees and Costs by Debra Baggett. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Milton, David) (Entered: 08/18/2015)
259 Joint MOTION for Final Approval of Class Action Settlement; NOTE: This is a duplicate filing of Dkt. No. 253 with Exhibits 3−5 Under SEAL. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Lindsay, Maurice) (Entered: 08/24/2015)
260 Joint MOTION for Leave to File Letter From Late Claimant Under Seal by Debra Baggett. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 08/27/2015)
261 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 260 Motion for Leave to File Letter From Late Claimant Under Seal; ALLOWED. Counsel should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures, by mailing said document to the clerks office to be placed under seal. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 08/28/2015)
262 EXHIBIT re 253 Joint MOTION For Final Approval of Class Action Settlement (Supplemental Exhibit: Letter From Claimant Re: Late Claim) by Debra Baggett. (Milton, David) (Additional attachment(s) added on 8/31/2015: # 1 Correct Main Document, # 2 Exhibit Letter) (Finn, Mary). Modified on 8/31/2015 to separate the exhibit from the main document and to add it as an attachment. (Finn, Mary). (Entered: 08/28/2015)
264 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 255 Motion for Attorney Fees and Costs. ALLOWED. (Lindsay, Maurice) (Entered: 09/10/2015)
265 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 253 Joint MOTION For Final Approval of Class Action Settlement. ALLOWED. (Lindsay, Maurice)

Case: 3:11-cv-30223 As of: 01/18/2018 06:56 PM EST 23 of 23

09/10/2015
09/16/2015 09/16/2015

(Entered: 09/10/2015)
267 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Motion Hearing held on 9/10/2015 re 253 Joint MOTION For Final Approval of Class Action Settlement filed by Debra Baggett. Court finds settlement fair and reasonable, and approves the settlement agreement. Motion for attorneys' fees allowed. Court hears from two class members. Court adjourned. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Milton, Friedman, Finnegan, Day) (Healy, Bethaney) (Entered: 09/16/2015)
268 USCA Judgment as to 225 Notice of Appeal filed by Michael J. Ashe, Patricia Murphy (Paine, Matthew) (Entered: 09/17/2015)
269 MANDATE of USCA as to 225 Notice of Appeal filed by Michael J. Ashe, Patricia Murphy. Appeal 225 Terminated (Paine, Matthew) (Entered: 09/17/2015)