UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------)(
KADIAN MCBEAN, et aI., Plaintiffs,
-against-
THE CITY OF NEW YORK, et al. Defendants.
------------------------------------..---------------------------------)(
JOEL RAMOS, et a1., Intervenor-Plaintiffs,
-against-
THE CITY OF NEW YORK, et a1.,
Defendants.
-----------------------------------------------------------------------)(

02 Civ. 05426 (GEL)(THK)

STIPULATION AND ORDER OF DISMISSAL

IT IS HEREBY STIPULATED AND AGREED, pursuant to Fed. R. Civ. P. 4](a),

by and between defendants and intervenor-plaintiffs to these cases and it is so ordered by the

Court, that all individual claims asserted with respect to the New York City's Department of

Correction's (DOC) new admission or post-admission strip searches experienced after

arraignment on felony charges by intervenor-plaintiffs Doris Edwards, Chareama Bolds, Samuel

Figueroa, and Alan Olson are hereby dismissed with prejudice.

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IT IS ALSO HEREBY STIPULATED AND AGREED, pursuant to Fed. R. Civ. P. 41(a), by and between defendants and intervenor-plaintiffs to these cases and it is so ordered by the Court, that all individual claims asserted by intervenor-plaintiffs Foster Thomas, Daniel

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Velazquez, Kenneth Williams, Arthur Wallace, Julio Phitts, Chareama Bolds, David Sanchez,

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Doris Edwards, Samuel Figueroa, and Alan Olson concerning DOC's post-admission strip search

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policy, practice, and/or custom, except those post-admission strip searches conducted: (a) whenever the detainee is leaving the confines of a DOC facility (the "Exit Policy"), and (b) whenever the detainee's living quarters is searched (the "Housing Policy"), are hereby dismissed with prejudice.
IT IS ALSO HEREBY STIPULATED AND AGREED, pursuant to Fed. R. Civ. P. 4] (a), by and between all parties to these cases and it is so ordered by the Court, that a]] claims against Michael M. Bloomberg, Mayor of New York; the New York City Department of Correction (DOC); and the New York City Department of Health and Mental Hygiene are hereby dismissed with prejudice.

Dated:

Auc) v sf- ~ 9 ,2007
New YorK, New York

MICHAEL A. CARDOZO

Corporation Counsel of the City

of New York

Attorney for Defendants

100 Church Street

New Yor , New York ]0007

(212)7

6

By: ~~~~----------------n vieve Nelson (GN5939) Ass tant Corporation Counsel

EMERY CELLI BRINCKERHOFF &ABADYLLP Attorneys for Intervenor-Plaintiffs 75 Rockefeller Plaza, 20th Floor New York, New York 10019
k ! L J (2l2)763-50~0 /
By: Elizabeth S. Saylor (ES809l)

SO ORDERED:

HON. GERARD E. LYNCH
UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRlCT COURT SOUTHERN DISTRlCT OF NEW YORK
-..--.---------------------.-.------------------------------·-·x

KADIAN MCBEAN, et al.,

Plaintiffs,
-v-
THE CITY OF NEW YORK, et aI.,

02 Civ. 5426 (GEL) ORDER

Defendants.

---------------------------------------------------------------x

GERARD E. LYNCH, District Judge:

The Court has received a series of letters from thc parties concerning defendants' recent production of voluminous documents, and related issues. In a letter dated August 17,2007, plaintiffs seek (I) an order directing defendants to answer certain interrogatories and requests for admissions relating to the number of disposable hospital gowns ordered by the City for purposes of maintaining the privacy of persons being searched; (2) an order precluding defendants from making use of newly produced documents in their summary judgment motions or at the preliminary injunction hearing scheduled to begin on September 24,2007; (3) an order directing the immediate production of all documents listed in defendants' privilege log dated July 19, 2007, or withheld or redacted after July 19,2007. (Letter from Elizabeth S. Saylor, Esq., to the Court, dated Aug. 17,2007, at 1 (the "8/17 Saylor Letter").)

Because the privilege issues implicate prior rulings by Judge Katz made in the course of his management of discovery in this case, and because the reference to Judge Katz remains open, the parties will be directed to take their dispute concerning privilege to Judge Katz. The applications for preclusion of new evidence and for discovery relating to that evidence, however, concern the issues addressed in this Court's Order of July 6, 2007, and accordingly will be dealt with in this Order.

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1. Plaintiffs' Request to Preclude Newly Produced Evidence
On July 6, 2007, the Court issued an Order ("the July 6 Order") addressing an earlier request by plaintiffs to preclude evidence regarding disposable hospital gowns that was not disclosed prior to the end of the discovery period. Acknowledging that defendants were

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extremely late in producing the required information, the Court expressed strong distaste for the

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idea of preclusion as a discovery sanction, noting that "[w]hether or not plaintiffs are entitled to injunctive relief will be determined, so far as this Court can manage it, based on accurate fact- finding."

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The July 6 Order went on to state:
There is a point where preclusion may be appropriate for example, where late production jeopardizes an adversary's ability to fairly prepare a response to new evidence, and thus undermines the reliability of that new evidence. An injunction precluding strip searches will not be imposed, however, as a sanction for belated discovery.
The July 6 Order went on to direct defendants in no uncertain terms to "produce any supplemental production on this issue on or before August 1,2007," noting that H[i]t should not be beyond the collective wit of the Corporation Counsel and the Department of Corrections to manage to determine how many hospital gowns they purchase in a year, given twelve months to do it." Apparently it was. Defendants have continued to produce documents relating to their purchases of hospital gowns well past the August 1 deadline, and indeed have continued producing such documents even while opposing plaintiffs' current request for relief.
Plaintiffs, noting the July 6 Order's warning that "[i]fplaintiffs' preclusion request is premature now, the time is fast approaching when a similar request will meet with greater favor," seek preclusion of the recently produced documents. While the Court is willing to consider any application for relief that may directly address the prejUdice suffered by plaintiffs, plaintiffs have not made the kind of showing that would require excluding the newly produced documents.
As the July 6 order made very clear, newly produced documents will not be excluded as a discovery sanction. Newly produced documents will, however, be excluded if they are unreliable due to plaintiffs' inability to fairly investigate and prepare their case with respect to those documents due to their belated disclosure. As the September 24 preliminary injunction hearing draws closer, defendants' failure to comply with discovery orders presents an increasingly serious threat to the Court's ability to discern the true facts at issue in this case. Plaintiffs' submissions note, rightly, that they have been prejudiced by defendants' late production, which carne after plaintiffs' summary judgment motion had been filed, but plaintiffs do not contend that the true facts regarding the new documents cannot be established because of the late production. Instead, plaintiffs argue that defendants' belated and incomplete production strongly suggests that defendants have not been ordering hospital gowns in the numbers they claim. Perhaps so; plaintiffs may make this argument when the Court takes up the merits of the case. Meanwhile, absent an argument that defendants' discovery violations undermine the reliability of the evidence, plaintiffs' request for preclusion of the new documents is denied.
2. Discovery Sought In Response To Defendants' Late Production
Although at this time the newly produced documents will not be precluded, the late disclosures present serious challenges to the factfinding process. These challenges can be addressed only if the defendants fully respond to the plaintiffs' reasonable demands for supplementary discovery in connection with the belated production.
2

Plaintiffs seek an order directing defendants to answer certain interrogatories and requests for admissions relating to the number of disposable hospital gowns ordered by the City for purposes of maintaining the privacy of persons being searched. (See 8117 Saylor Letter, Ex. 1.) In response, defendants argue that plaintiffs "have made no showing that the [documents produced] are in any way inadequate for the purpose of arriving at the truth" of whether the gowns were used in the manner defendants claim. (Letter from Karl J. Ashanti, Esq., and Genevieve Nelson, Esq., to the Court, dated Aug. 24,2007 (the "8/24 Ashanti Letter"), at 2.) Plaintiffs, understandably, seek to compel defendants to answer simple factual questions that will be at the heart of the upcoming hearing: whether the gown information produced represents all the gowns ordered by defendants, how many gowns DOC ordered, and the number of detainees accused of misdemeanors admitted to DOC custody who should have been searched with a disposable gown. (See 8117 Saylor Letter, Ex. 1.)
Defendants argue that plaintiffs "have been able to analyze the documents produced" themselves. (8/24 Ashanti Letter, at 3.) This argument is unconvincing enough on its face, but three days later, defendants the same defendants who objected that it was unnecessary for them to answer plaintiffs' questions, including a question about whether the gown-related infomlation already produced represented all the gown information there was - produced approximately 900 more pages of documents to plaintiffs. (Second Letter from Elizabeth S. Saylor, Esq., to the Court, dated Aug. 27, 2007 (the "Second 8/27 Saylor Letter"), at 1; Letter from Genevieve Nelson, Esq., to the Court, dated Aug. 28, 2007 ("8/28 Nelson Letter").) Apparently failing to see the irony in arguing first that plaintiffs can figure out for themselves whether all gown-related information has been produced and then producing more gown-related information, defendants have not withdrawn their objection to the interrogatories.
Defendants have little of relevance to say in regards to their refusal to answer the interrogatories. They complain that the plaintiffs' document requests were overly broad, but of course the time for objections to the scope of discovery requests is long past. At this point defendants' only choices are compliance or contempt, and it is becoming increasingly clear that defendants have chosen the latter.
Defendants also state that "[uJpon information and belief, most of these documents were only recently located by DOC." (8/28 Nelson Letter, at 1.) DOC was ordered to locate them much, much sooner. In the same letter, defendants contend that the documents were produced "two business days after receiving the documents" (id.), apparently meaning that defense counsel produced them shortly after DOC located them. The fact that defendants appear to regard DOC's lateness in locating the documents as some sort of an excuse for the late production suggests that defense counsel understand their role in this process as little more than passing documents along to plaintiffs whenever the client feels like producing them. It should not be necessary to explain why this is wrong. Discovery requirements are imposed on the parties themselves, not simply on defense counsel. In eilect, defendants' counsel do not deny that defendants have failed to comply with this Court's order directing them to locate and produce all relevant documents by August 1; they simply argue it was their client's failure, not theirs. This does not help the City's case.
3

Finally, and somewhat astonishingly, defendants contend that "it is disingenuous" for plaintiffs to eomplain that this latest late production was a surprise, because plaintiffs "were well aware that the Defendants intended to produce additional documents to them on a rolling basis." (8/28 Nelson Letter, at 2.) Perhaps it is true that long ago, when discovery was still open, there was an understanding that production would be "on a rolling basis." But plaintiffs and the Court have long since had an understanding that discovery was closed, and defendants have done nothing to disabuse the rest of us of this understanding. Even if defendants had stated explicitly that discovery would continue "rolling" in at such a late date, it would amount to little more than an announcement that they intended to violate this Court's July 6 order. In short, defendants by their actions have demonstrated that plaintiffs' need for answers to their interrogatories is highly legitimate. Defendants will be given until Thursday, September 6, 2007, to answer the interrogatories in full.
Plaintiffs seek additional discovery on another issue. In a letter dated August 27,2007, plaintiffs advise the Court that defendant on August 13, 2007, issued a revised policy document pertaining to searches conducted by the DOC. (First Letter from Elizabeth S. Saylor, Esq., to the Court, dated Aug. 27, 2007 (the "First 8/27 Saylor Letter"), at 1 n.l.) This policy appears to have been issued after the August I, 2007, deadline, and so of course defendants have not violated this Court's July 6 order in producing it. Plaintiffs indicate, not surprisingly, that if defendants rely on this new policy in their motion papers, plaintiffs will seek a Rule 30(b)(6) deposition on matters relating to the policy, in particular why the policy was revised and how it is being implemented. See Fed. R. Civ. P. 30(b)(6).
Defendants contend, bizarrely, that plaintiffs' demand for new discovery regarding the new policy is "yet another attempt to divert defendants' attention from the preparation of the motions that are due this Wednesday." (Letter from Genevieve Nelson, Esq., to the Court, dated Aug. 27, 2007, at 1.) In other words, defendants, having produced significant new evidence on the eve of trial, see it as an attempt to sabotage their work when plaintiffs attempt to discover what that new evidence means.
Defendant also argue, irrelevantly, that their conduct in failing to disclose this new policy earlier was not "willful or in bad faith." (Id.) That matters not at all. Once again: the point is to find the truth about defendants' policies. The Court cannot find the truth if defendants continue to obstruct its factfinding process by making irrelevant objections to reasonable discovery requests. If defendants have claims of privilege to make relating to the new policy, they may present them to Judge Katz. Except for those matters as to which Judge Katz sustains a claim of privilege, a Rule 30(b)(6) witness must be made available and prepared to testify regarding the new policy.
Defendants seem not to understand what is at stake here. If they did, they would be rushing to offer plaintiffs answers to interrogatories, a 30(b)(6) witness, and any other form of discovery that may ensure that the reliability of the new documents is thoroughly tested by a fair adversarial process. Ifby the time of the hearing the Court cannot be sure that the plaintiffs have had ample opportunity to prepare their case with respect to the new documents, then it will have
4

no choice but to exclude those documents as unreliable evidence. In other words, when defendants produce documents beyond the close of discovery, the alternative to offering plaintiffs full supplementary discovery is for defendants not to be able to use the new evidence at all.
As was clearly stated in the Court's July 6, 2007 order, preclusion will not be imposed as a sanction for belated discovery. If the Court cannot be assured of new evidence's reliability, however, it cannot be admitted. Defendants will provide to plaintiffs all of the discovery they seek, and any other discovery that may reasonably aid in assessing the reliability and significance of the newly disclosed evidence.
Accordingly, it is hereby ORDERED that:
1. Plaintiffs' request for preclusion of newly produced evidence is denied.
2. Defendants are directed to respond by 5:00 p.m. on Thursday, September 6,2007, to all interrogatories and requests for admissions contained in Exhibit 1 to the August 17,2007, letter from Elizabeth S. Saylor, Esq., to the Court.
3. Defendants are directed to make available a witness pursuant to Rule 3O(b)(6) to discuss the new policy, as discussed above.
4. Plaintiffs' applications with respect to defendants' claims of privilege should be directed to Judge Katz.
5. As chambers staff informed the parties by phone on August 28, 2007, the defendants' request for an extension of time to serve plaintiffs with defendants' motion for summary judgment and opposition to plaintiffs' motion (see 8/27 Nelson Letter, at 2-3) is granted. Defendants' time to serve those papers on plaintiffs is extended to 6:00 p.m. on Friday, August 31,2007.

SO ORDERED.
Dated: New York, New York August 31, 2007

Lli~
GERARD E. LY?'I(ffi--
United States District Judge

5

 
 Case 1:02-cv-05426-JGK-THK Document 237 Filed 03/22/2010 Page 1 of 5 Case ~:92 cv G5426-IGK-lliK [Jee"ffieA~2aa 6 Filed 031~912010 Page 2 al6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KADIAN MCBEAN, et aI. , Plaintiffs,
v.
THE CITY OF NEW YORK, el aI., Defendants.

02 Civ. 05426 (JGK)
If. 0pGdulJ Order
Approving the March 16,2010 Stipulation of Settlement

JOEL RAMOS, el aI., Intervenor-Plaintiffs,
v.
THE CITY OF NEW YORK, el aI. , Defendants.

USDSSDNY

/'

I DOC U;\1ENT
ELECTRONICALLY FILED

DOC #:

DATE FiLED: ,51.)..;;'//0

HONORABLE JOHN G. KOELTL UNITED STATES DISTRlCT JUDGE
WHEREAS, the Intervenor-Plaintiffs and Defendant City of New York ("City") entered into a Stipulation and Order, dated October 4, 2007 (hereinafter "2007 Stipulation"), which provided for injunctive relief and for the certification of an Injunctive Class pursuant to Fed. R. Civ. P. 23(b)(2), as well as certification of two damages classes pursuant to Fed. R. Civ. P.23(b)(3);
WHEREAS, the District Court preliminarily approved the 2007 Stipulation, including the certification of these three classes, on October 5, 2007;

Case 1:02-cv-05426-JGK-THK Document 237 Filed 03/22/2010 Page 2 of 5 Case 1:02-cv-05426-JGK-THK Document 233-6 Filed 0311912010 Page 3 of 6
WHEREAS, the District Court ordered final approval and certification of the 2007 Stipulation and the Injunctive C lass pursuant to Fed. R. eiv. P 23(b)(2) class after a fairness hearing on February 5, 2010;
WHEREAS, certification of the two damages classes pursuant to Fed. R. eiv. P 23(b)(3) which were agreed to by the parties under the 2007 Stipulation for the period between July 23, 2002 and October 4, 2007, were not at issue at the February 5, 20 I0 fairness hearing, and that certification has not been finally approved;
WHEREAS, by an Opinion and Orde r dated August 14,2009, the District Court certified another class for the period between July 23,1999 and July 22, 2002 and appointed Emery Ce lli Brinckerhoff & Abady LLP as C lass Counsel;
WHEREAS, the Intervenor·Pl aintiffs and the City entered into a Stipulation of Settlement, dated March 16, 20 I0 (hereinafter " Damages Settle ment") to reso lve the remaining claims in the above referenced matters pending in th is Cou rt;
WHEREAS, before the Court is Intervenor·P laintiffs· March 19,2010 notice of motion, memorandum of law, and declarations in support of preliminary approval of this settlement;
WHEREAS, the Sti pulation of Settlement dated March 16, 20 I0, sets fort h the terms and cond itions for a proposed settlement and dismissal of this action;
WHEREAS, the Damages Sett lement provides for. inter alia, monetary re lief for members of the cl asses, which is defined as a ll pretria l detainees arraigned so lely on non· fe lony charges:
(a) who were admitted to DOC custody after arraignment between July 23, 2002 and October 4, 2007 but were not also s imultaneously admitted on (i) any felony charges; (ii) a parole violation; (i ii) an outstanding warrant for a felony offense; (iv) a violation of felony probation; (v) a Ci ty
2

Case 1:02-cv-05426-JGK-THK Document 237 Filed 03/22/2010 Page 3 of 5
Case 1:02-cv-05426-JGK-THK Document 233-6 Filed 03/19/2010 Page 4 of 6
sentence of less than one year; or (vi) who were not already serving a State sentence at the time of their admission ("2002-2007 Subclass"); or, (b) who were admitted to DOC custody after arraignment between July 15. 1999, and July 22, 2002 on a Drug or Weapon Non-Felony Charge as defined in paragraph 23 oflhe Damages Settlement, but did not receive a monetary settlement as part of the 2005 Settlement, as defined in paragraph 22 of the Damages Settlement. and were not also simultaneously admitted on (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) a violation of felony probation; (v) a City sentence of less than one year; or (vi) who were not already serving a State sentence at the time of their admission (" 19992002 Subclass"); WHEREAS, the 1999-2002 Subclass set forth above in paragraph (b) is the class
that the District Court certified on August 14,2009, and the 2002-2007 Subclass set forth above
in paragraph (a) comprises the two damages classes that was part of the 2007 Stipulation that the
District Court preliminarily approved on October 4,2007;
WHEREAS, the Damages Settlement provides for the creation of a Class Fund in the amount of$33 Million ($33,000,000), unless it is reduced as set forth in paragraphs 32-34 of
the Damages Settlement because less than 10% of the persons in the Settlement Class submit valid Claim Forms;
WHEREAS, $29 Million ($29,000,000) of that Class Fund shall be paid to
members of the Settlement Class who timely file a signed valid Claim Form, according to the
formula set forth in paragraphs 42-43 of the Damages Settlement, unless the $29 Million is
reduced as set forth in paragraphs 32-34 of the Damages Settlement if less than 10% of the
persons in the Settlement Class submit valid Claim Forms; WHEREAS, $4 Million ($4,000,000) of that Class Fund shall be paid to Class
Counsel to make the following payments: incentive payments of $8,000 each to the eight representatives of the Settlement Class (total $64,000), as defined in paragraph 3 of the Damages
Settlement; payments of $20,000 each to twO persons who asserted claims regarding purported
3

Case 1:02-cv-05426-JGK-THK Document 237 Filed 03/22/2010 Page 4 of 5 Case 1:02-cv-05426-JGK-THK Document 233-6 Filed 0311912010 Page 5 of 6
forced gy necological exams (total $40.000); all payments to an Administrator to administer the Damages Settlement; and payments to Class Counsel fo r its own past, present, and future fees and costs in the above-captioned acti on;
WHEREAS, the Damages Settlement also provides fo r add iti onal payments to 18 persons who alleged that, after October 4, 2007, they were strip searched in violati on of the Injunction Settl ement. This amount wi ll be paid directly by the City and not from the Class Fund ;
WHEREAS, the Damages Settlement prov ides that an Adm ini strator will send a Claim Form and noti ce (together "Claim Packet"), in a form approved by the Court, to all members of the Settleme nt Class, and that Class Members will be prov ided with an opportunity to opt-out and/or object to the Damages Settlement;
WHEREAS, the Damages Settlement provides that a one-page Engl ish and onepage Spanish summary of the Damages Settlement ("S ummary Notices"), in a form approved by the Court , wi ll be posted in locations throughout the State in locations where members of the Settlement Class are like ly to see them;
WHEREAS, Rust Consu lting, Inc. is an experienced adm in istrator of class action settl ements, including strip search settleme nts, and Intervenor-Plaintiffs request that the Court authorize Class Counsel to retain Rust Consu lting, Inc., as Admi ni strator of the Damages Settl ement;
WHEREAS, the Damages Settlement was negoti ated with the assistance of the Court-appointed Special Master Richard J. Davis, a partner at We il, Gotshal & Manges LLP, and was the product of serious, informed, non-collusive negotiati ons, has no obvi ous deficiencies,
4

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does not im properly grant preferential treatment to class representat ives or segments of the class and falls with in the range of possible approval;
WHEREAS, a hearing to pre liminari ly determine whether the Damages Settlement was fair, just, and reasonab le was held on March 22, 20 10; and
WHEREAS. upon readin g the papers submitted in suppo rt of the mot ion fo r a pprova l of the Damages Settlement, and after hearing argument.
NOW, it is HEREBY ORD ERED that: (a) the Damages Settlement is preliminarily approved, subject to fu rther
consideration thereof at a Fairness Hearing; (b) Class Counsel is authorized to retain Rust Consulting, Inc. to ad min ister this
sett lement in accordance with the terms of the St ipulation of Settlemen t dated March 16,2010; and (c) on or before Apri l 13, 20 I0, the parties sha ll provide the Court with the proposed Claim Packet, Sum mary Not ices, and plan for notify in g the Settlement Class and a proposed order rega rdin g di ssemi nation of the Summary Notices and C laim Packets and requests to opt-out or for exclu sion.

Dated: New York, New York Ma rc h ; E - - , 2 0 1 0

ORDERED:
~C
B ~ JOHN G. KOELTL STATES DISTRICT JUDGE

5

 
 McBean v. City of New York, 233 F.R.D. 377 (2006)
233 F.R.D. 377 United States District Court,
S.D. New York.
Kadian MCBEAN, et al., individually and on behalf of a class of all others similarly situated, Plaintiffs,
v. The CITY OF NEW YORK et al., Defendants. David Cence, et al., individually and on behalf of a class of all others similarly situated, Plaintiffs,
v. The City of New York, et al., Defendants. Joel Ramos, et al., individually and on behalf of all others similarly situated, Intervenor–Plaintiffs,
v. The City of New York, et al., Defendants.
No. 02 Civ. 5426(GEL), 03 Civ. 4114(GEL). | Feb. 7, 2006.
Attorneys and Law Firms
*380 Richard J. Cardinale, Cardinale, Hueston & Marinelli, Brooklyn, NY, Robert N. Isskes, Middletown, NY, for Plaintiffs.
Richard D. Emery, Matthew D. Brinckerhoff, Marian Meier Wang, Emery, Celli, Brinckerhoff & Abady LLP, New York City, for Intervenor–Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York (by Genevieve Nelson and Muriel Goode– Trufant, Assistant Corporation Counsel), New York City, for Defendants.
Opinion
OPINION AND ORDER
LYNCH, District Judge.
A settlement agreement between plaintiffs and defendants in the above-captioned class action was preliminarily approved by this Court on June 21, 2005. Plaintiffs now move for final approval of the settlement pursuant to Fed.R.Civ.P. 23(e)(1)(A). Intervenor-plaintiffs object to the proposed settlement and request that it be rejected. For the reasons below, plaintiffs’ motion for approval will be granted and intervenors’ objections will be overruled.
BACKGROUND

This case has a long history, much of which is laid out in this Court’s opinion certifying the plaintiff class, McBean v. City of New York (McBean I), 228 F.R.D. 487 (S.D.N.Y.2005). In that opinion, this Court defined the plaintiff class as “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails pursuant to the standard new admission strip search procedure.” Id. at 496 (emphasis omitted). Plaintiffs claim that because the searches were conducted without *381 individualized reasonable suspicion, the defendants violated their federal civil rights.
On May 13, 2005, after several settlement conferences under the close supervision of Magistrate Judge Theodore E. Katz, plaintiffs and defendants entered into a stipulation of settlement. The proposed settlement incorporates this Court’s definition of the class, and explicitly excludes “pre-trial detainees who, at the time they were admitted ..., were charged with [various specified drug-related or weapon-related crimes].” (Settlement ¶¶ 1, 2.) Under the proposed settlement, class members are eligible to receive $750 if they were subjected to one qualifying strip search, and $1000 if they were subjected to two or more qualifying strip searches. (Id. ¶¶ 28, 29, 30.) In exchange for this payment eligibility, class members agree to release all claims arising from defendants’ “new admission” strip search policy, including claims made in this action, and agree not to pursue any new action against defendants arising from the policy. (Id. ¶¶ 18, 20.) To receive a payment under the settlement, class members must have completed and returned a claim form before the court-ordered deadline. (Id. ¶ 32.) However, even if a class member did not return a claim form, he is still bound by the provisions of the settlement releasing claims against the defendants unless the class member filed an opt-out form excluding himself from the class. (Id. ¶¶ 33, 41, 42.) Individuals who opt out of the class will receive no payments under the proposed settlement, but are free to pursue individual claims against the defendants. (Id. ¶ 22.)
The proposed settlement also provides for “bonus or incentive” awards of $25,000 to the class representatives in this action, with additional awards of $5,000 or $10,000 to the female class representatives. (Id. ¶ 46.) The parties stipulate that the Court can approve the proposed settlement while at the same time adjusting these awards. See McBean I, 228 F.R.D. at 495.
Harkening back to the origins of this litigation, the proposed settlement includes various terms relating to defendants’ policy of offering gynecological examinations to female pre-trial detainees. Under the
1

McBean v. City of New York, 233 F.R.D. 377 (2006)
proposed settlement, defendants pledge to continue offering “gynecological services” to female pre-trial detainees for the next three years. (Settlement ¶¶ 49, 53.) Defendants will inform female detainees of the purposes and benefits of the services, that they have the right to refuse the services, and that no retaliatory actions will be taken against them if they refuse. (Id. ¶ 50.) Of course, in connection with this promise to refrain from retaliation, defendants are required not to retaliate if a female detainee refuses the gynecological services. (Id. ¶ 51.) The proposed settlement explicitly allows for future claims by class members against defendants based on alleged non-consensual gynecological examinations, with the exception that female class representatives receiving bonus awards under the proposed settlement release such claims for themselves alone. (Id. ¶ 52.)
Finally, the proposed settlement sets out an agreed upon payment of attorneys’ fees and costs for class counsel in the amount of $500,000. (Id. ¶ 43.) Defendants agree to pay this amount in fees and costs, and also agree to pay for the prior and ongoing administration of the proposed settlement, including mailing and publishing the class notice, distributing the awards to class members, and paying class counsel ongoing administration fees. (Id. ¶¶ 44, 45.)
On June 21, 2005, this Court preliminarily approved the settlement, ordered notices to be mailed to potential class members, set deadlines for the filing of claims, opt-outs, and objections, and scheduled a fairness hearing to determine, after all claims, opt-outs, and objections had been received, whether the settlement was “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(1)(c). Between the preliminary approval on June 21, 2005, and the fairness hearing on December 2, 2005, plaintiffs and defendants administered the proposed settlement. A search of defendants’ records determined that 40,352 individuals were members of the class. (Letter from Genevieve Nelson, Assistant Corporation Counsel, Dec. 1, 2005, at 1.) Notices were mailed to 33,756 class members—those for whom address information was available—and efforts were made to contact the *382 remaining class members by publishing notices in newspapers, posting notices in prison facilities, and contacting the Department of Homeless Services. (Id. at 2–3.) These 40,352 class members were determined to have been subjected to qualifying strip searches on 63,575 separate occasions, the difference in number resulting from the fact that some members of the class were subjected to the strip searches multiple times. (Id. at 1.) As of November 23, 2005, class members had returned 4,319 claim forms, 3,402 of which were determined to qualify for payment under the proposed settlement.1 (Id. at 3–4.) Of those 3,402 claimants who qualified for payment, 2,392 will receive the $750 payment while the remaining 1,010 will receive the $1000 payment, for a total payout to the class of $2,804,000. (Id. at 4.) This

amount does not include, and is not limited by, attorneys fees, administration costs, or payments to class representatives. Thirty-six class members requested to be excluded from the class, and therefore will receive no payment under the settlement and will not be bound by the terms of the settlement. (Id. at 3.) In addition to the objection to the proposed settlement filed by intervenorplaintiffs, only one objection to the settlement has been received, that of Timothy Dean Best, which was the subject of this Court’s order dated November 21, 2005.2

1

On December 1, when defendants submitted the letter

detailing the administration of the settlement, there

were 46 claim forms that had been received but not yet

reviewed (Nelson Letter, Dec. 1, 2005, at 1), and it is

likely that additional claim forms have been received

since that time. Therefore, the statistics regarding the

number of payments and the total payment amount are

not likely to be final, but given that the deadline for the

submission of claim forms was November 21, 2005, the

data at hand are accurate enough for the present

purposes.

2

Best requested that the Court enter judgment in his

favor in the amount of $100,000. The Court declined

Best’s request to enter judgment, but interpreted his

request as an objection that the amount he would

receive under the settlement was too low.

DISCUSSION
[1] [2] “A class action cannot be settled without the approval of the District Court. The District Court must carefully scrutinize the settlement to ensure fairness, adequacy, and reasonableness.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001). Rule 23 requires the Court to hold a hearing and to make a determination that a settlement is “fair, reasonable, and adequate” before approving the settlement. Fed.R.Civ.P. 23(e)(1)(C). This scrutiny is necessary because in the context of class action settlement negotiations there are factors that can cause parties, even parties with the best motives and intentions, to “give insufficient weight to the interest of at least some class members.” Manual for Complex Litigation, Third § 30.42 (1995). In this regard, the Court must serve as a “fiduciary” to protect the interests of absent class members affected by the settlement. Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir.1987). However, in this fiduciary role, it is not the Court’s prerogative to pick and choose terms of the settlement, redact portions of the agreement, or substitute terms more to the Court’s liking. Rather, the Court’s duty is to evaluate the settlement as a whole, and determine if the settlement as a whole is fair,
2

McBean v. City of New York, 233 F.R.D. 377 (2006)
reasonable, and adequate. Manual for Complex Litigation, Fourth § 21.61 (2004).
[3] In a case such as the instant action, where the settlement was negotiated between the parties prior to class certification, “it is subject to a higher degree of scrutiny in assessing its fairness.” D’Amato, 236 F.3d at 85. Indeed, because the settlement agreement existed at the time of certification, and because the intervenorplaintiffs argued against certification based in part on the terms of the settlement, this Court discussed the settlement terms in the opinion certifying the class. See McBean I, 228 F.R.D. at 493–96. However, as was stated in McBean I, the Court’s comments at that time were provisional, and were made solely in so far as necessary to decide the issue of class certification. At the present time, the Court must and will undertake an independent “full examination of the fairness of the settlement.” Id. at 494.
[4] In evaluating the fairness of the settlement, this Court must examine both the *383 procedural aspects of the settlement—that is, the process of negotiation that produced the settlement—and the substantive aspects of the settlement—that is, the terms themselves. D’Amato, 236 F.3d at 85.
I. Procedural Fairness [5] [6] “A court reviewing a proposed settlement must pay close attention to the negotiating process, to ensure that the settlement resulted from arm’s-length negotiations and that plaintiffs’ counsel have possessed the experience and ability, and have engaged in the discovery, necessary to effective representation of the class’s interests.” Id. (quotation marks omitted). Of course, this Court was not present while settlement negotiations were taking place, and neither were intervenors, so information regarding the process that led to the settlement is not as plentiful as information regarding the substance of the settlement itself. However, after reviewing the available information relating to the negotiating process, the Court finds that the process was fair.
As an initial matter, this settlement was the product of actual and honest negotiations under the supervision of Magistrate Judge Theodore H. Katz. See McBean I, 228 F.R.D. at 494. “All settlement negotiations were done in front of ... Judge Katz” (Fairness Hearing Tr. 62–63), and this supervision goes a long way toward assuring that the process was “free of collusion or undue pressure.” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323 (2d Cir.1990).
In spite of this assurance that the settlement was the result of arm’s-length negotiations, objections have been raised to procedural aspects of the settlement. First, intervenors

question the role of the named plaintiffs in the negotiations. (Intervenor–Pl. Supplemental Mem. Supp. Obj. 3–4.) Over the course of this litigation, individual named plaintiffs have come and gone from the caption, with little explanation. Now, at the case’s conclusion, particular plaintiffs remain as named plaintiffs seeking to represent the class as a whole, and are therefore entitled to a bonus award of at least $25,000 under the settlement, pending the approval of the Court. This raises two separate procedural issues. First, it is important to the integrity of the settlement that those individual named plaintiffs who approved the settlement were actually involved in its negotiation. The shuffling of named plaintiffs raises doubts about that process. Second, even if the named plaintiffs negotiated the settlement, it is important that the incentives of the named plaintiffs were aligned with those of the rest of the class to ensure that the process was fair to absent class members. The named plaintiffs were approving a settlement under which they believed they would receive $25,000 or more, while other class members would receive $750 or $1000. Therefore, those incentives appear to be misaligned. This is so regardless of whether the Court can now lower those amounts. What matters, from a process perspective, is not the award to named plaintiffs that this Court might now approve, but rather the incentives of the named plaintiffs at the time of the negotiation and how, if at all, those incentives diverged from the class as a whole.
[7] Concerns about the role of the named plaintiffs in the process of negotiating the settlement were assuaged at the fairness hearing. With respect to the question of which named plaintiffs participated in the settlement negotiations, class counsel represented to the Court that “[f]rom the beginning, the people who remain named plaintiffs now have been with the case since the beginning of the case.” (Fairness Hearing Tr. 61–62.) Additionally, in their response to intervenors’ objections, plaintiffs asserted that various former named plaintiffs, who have since been excluded from the class, did not control the settlement process, and that in fact “[n]o single named plaintiff or group of named plaintiffs drove this litigation or controlled the settlement process.” (Pl.Mem.Opp.Obj.12–13.) Intervenors respond that this statement amounts to an admission that the current named plaintiffs did not control the settlement process, because it shows that previous named plaintiffs were involved to some degree. (Intervenor–Pl. Supplemental Mem. Supp. Obj. 4.) However, procedural fairness does not require that only the named plaintiffs, to the exclusion of all others, have *384 any role in the settlement process. It is enough that the named plaintiffs were involved with the negotiations from their inception, thereby making their approval of the settlement an approval of the process from the beginning.
With respect to the $25,000 awards to named plaintiffs, class counsel allayed fears of divergent incentives by
3

McBean v. City of New York, 233 F.R.D. 377 (2006)
explaining the process by which the settlement was approved by the parties. First, the parties negotiated the main awards for the class—the awards of $750 and $1000—and then discussed those awards with the representative plaintiffs and obtained their approval. (Fairness Hearing Tr. 62–63.) Then, and only then, after the base awards had been agreed upon, did the parties negotiate the individual awards for the named plaintiffs, with the entire process conducted under the supervision of Judge Katz. (Id. 63.) Intervenors are indeed wise to raise a red flag in response to these individual awards, because when named plaintiffs receive “special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at the expense of class members whose interests they are appointed to guard.” (Intervenor–Pl. Mem. Supp. Obj. 22, quoting Sheppard v. Consolidated Edison Co., No. 94 Civ. 403, 2000 WL 33313540 (E.D.N.Y. Dec. 21, 2000).) However, that temptation was eliminated here by a careful structuring of negotiations. Because the general awards to the class were negotiated and agreed upon before the individual awards to named plaintiffs, the incentives of the class and the named plaintiffs were in line throughout the negotiation process. Additionally, this is not a case where payments to the class come from a limited fund, such that every dollar awarded to the named plaintiffs is a dollar taken away from the class as a whole. Compare Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877 (7th Cir.2000) (rejecting settlement where named plaintiff received $2000, all other class members received nothing, and there was a statutory cap on damages). Therefore, the negotiation of payments to named plaintiffs did not affect the amount of money available to the rest of the class, and no conflicting incentives infected the process in that regard.
[8] [9] [10] Intervenors further object that class counsel, as part of the settlement negotiations, excluded from the class individuals who were arraigned on offenses related to drugs or weapons, and assert that this evinces “an inadequate adversarial relationship in this proceeding.” (Fairness Hearing Tr. 25; Intervenor–Pl. Mem. Supp. Obj. 27–28.) However, for the reasons explained in McBean I, this Court rejects that argument. See 228 F.R.D. at 496– 98. The decision of plaintiffs’ counsel to narrow the class definition does, in some sense, show that class counsel were not absolutely antagonistic to defendants, in that it was not plaintiffs’ counsel’s goal to bring the largest possible case or seek the largest possible recovery as a general matter. However, a desire by lawyers to extract the greatest amount of money from defendants is not the sort of adversarial motivation that fairness requires. Rather, fairness requires that class counsel act in the best interests of their clients, the class. It was perfectly reasonable—and not at all unfair or un-adversarial—for class counsel to define the class in a way that, in their opinion, would lead to the best recovery for the class. Fairness does not require class counsel to act on behalf of

individuals not in the class, even if at one time those individuals were included in a pretrial class definition. See In re Holocaust Victim Assets Litig., 225 F.3d 191, 202 (2d Cir.2000).
[11] Lastly, intervenors object that “[t]here appears to have been little discovery actually pursued by class counsel.” (Intervenor–Pl.Mem.Supp.Obj.5.) In evaluating the procedural fairness of the settlement, this Court must ensure that “plaintiffs’ counsel ... have engaged in the discovery[ ] necessary to effective representation of the class’s interests.” D’Amato, 236 F.3d at 85. However, the question that this Court must answer is not how much or how little discovery was completed by the parties before they agreed to the settlement, but rather whether the discovery that was completed was sufficient for “effective representation.” At the request of the parties, this Court stayed discovery pending the outcome of settlement negotiations on August 25, 2003. See McBean *385 I, 228 F.R.D. at 490. Intervenors, while objecting to the amount of discovery that took place before settlement, have not explained how additional discovery would have been in the interest of the class. Discovery has costs, and further discovery would have taken additional time and resulted in the expenditure of additional funds on both sides, neither of which is in the plaintiffs’ interest. On the benefit side, it is difficult to see what new information beneficial to the class would have been obtained through a prolonged discovery process. All parties, including intervenors, seem to agree upon the basic facts as they relate to the plaintiff class—members of the class were subjected to unconstitutional strip searches pursuant to an established policy of the Department of Corrections. (Fairness Hearing Tr. 9.) Given that common understanding, class counsel’s decision to forgo additional discovery in the hopes of minimizing costs and achieving a quick recovery for their clients appears to be both fair and reasonable, and falls within the bounds of “effective representation.”
II. Substantive Fairness [12] In evaluating the substantive fairness, adequacy, and reasonableness of a settlement, this Court is required to consider the following nine factors, often referred to as the Grinnell factors:
(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the risks of establishing liability;
4

McBean v. City of New York, 233 F.R.D. 377 (2006)
(5) the risks of establishing damages;
(6) the risks of maintaining the class action through the trial;
(7) the ability of the defendants to withstand a greater judgment;
(8) the range of reasonableness of the settlement fund in light of the best possible recovery;
(9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
Wal–Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 117 (2d Cir.2005), citing City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974).
A. Complexity, Expense, and Likely Duration of the Litigation [13] The possible complexity of this litigation going forward is difficult to evaluate, since, to the extent that any party has discussed this factor, the parties have taken somewhat counterproductive positions. As a general matter, the more complex, expensive, and time consuming the future litigation, the more beneficial settlement becomes as a matter of efficiency to the parties and to the Court. See, e.g., In re Indep. Energy Holdings PLC Secs. Litig., No. 00 Civ. 6689, 2003 WL 22244676, at *3 (S.D.N.Y. Sept. 29, 2003) (stating the possibility of continued litigation involving expert discovery, summary judgment motions, pre-trial orders, and a long trial “weighs heavily in favor of ... [s]ettlement”). However, neither the plaintiffs nor the defendants have argued that taking this case to trial would be an extremely burdensome affair. As mentioned above, the parties seem to agree that the main issue of liability is a simple one, and that it is in the area of damages that the litigation could become complicated. However, the necessity of awarding damages to individual plaintiffs exists in both the settlement context and the trial context, and in either instance the parties and the Court have the options of individuation, which requires more process, or uniform payments, which require less process and which the parties have opted for in the settlement. Throughout this litigation, it has been the intervenors who have argued for more complexity, more expense, and more time. (See, e.g., Intervenor–Pl. Mem. Supp. Obj. 25–26, Fairness Hearing Tr. 26 (stating that the settlement should be rejected and there “should be depositions, there should be motions, there should be arguments, and there should be a determination of what is and what is not right, ultimately, if it has to go that way”).) Under this factor, however, the prospect of complexity, expense, and duration counsels for the settlement, not against it.

*386 In any event, it appears that this first Grinnell factor weighs in favor of the settlement. Taking this case to trial would not be as complicated as a large securities class action. See, e.g., In re WorldCom, Inc. Secs. Litig., 388 F.Supp.2d 319, 337 (S.D.N.Y.2005) (noting the “extraordinarily” complex and expensive nature of the litigation). However, the defendants have denied liability (Settlement pmbl., at 2), and continuing the case on the march toward trial would no doubt result in summary judgment motions, pre-trial motions, additional discovery (which, as previously mentioned, would be of dubious value), and additional delays before a final judgment could be obtained. While those processes would not be terribly complex, they are much more complex than the simple and efficient settlement currently before the Court.
B. The Reaction of the Class to the Settlement [14] “If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.” Wal–Mart, 396 F.3d at 118, quoting 4 Newberg on Class Actions § 11:41 (4th ed.2005). Of the 40,352 members of the class, only four have objected: the three intervenor class members and Timothy Best. That percentage is slightly higher than the eighteen objections out of five million in Wal–Mart, which was evidence of “overwhelming[ ]” approval, id., but it is lower than the eighteen objections out of 27,883 in D’Amato, where the district court “properly concluded that this small number of objections weighed in favor of the settlement,” 236 F.3d at 87. The small number of objections, together with the fact that only thirty-six class members have opted-out of the settlement, indicates the overall approval of the settlement by the class, and favors the approval of the settlement by this Court.
C. Stage of Proceedings and Amount of Discovery Completed [15] As discussed above, discovery in this case was stayed at a somewhat early stage in the litigation. However, in accord with this Court’s analysis of the discovery necessary for procedural fairness, the inquiry into the amount of discovery necessary for substantive fairness is not a matter of attaining some rigid number of pages or depositions. Rather, what is important is whether the parties have “a thorough understanding of their case” and the extent to which there are remaining factual “unknowns” prior to trial. Wal–Mart, 396 F.3d at 118. Discovery must be completed so that class members “have sufficient information to make an informed judgment on the reasonableness of the settlement proposal.” In re Elan Secs. Litig., 385 F.Supp.2d 363, 370 (S.D.N.Y.2005).
5

McBean v. City of New York, 233 F.R.D. 377 (2006)
[16] The class members in this case possessed the information necessary to evaluate the settlement, and therefore this factor also favors approval. “Blanket policies mandating the strip search of every postarraignment misdemeanor detainee upon admission, regardless of the existence of individualized reasonable suspicion that the detainee is concealing weapons or other contraband, are thus clearly unconstitutional under the law of this Circuit.” McBean I, 228 F.R.D. at 489. There is little doubt that the class members were subjected to such a policy. The issue then becomes one of damages, but information regarding damages awarded to different individual plaintiffs or classes of plaintiffs in various strip-search cases is publicly available. By knowing what happened to them, and knowing the possible worth of their claims, members of the class had “sufficient information to make an informed judgment” regarding the proposed settlement.
D. The Risks of Establishing Liability, Establishing Damages, and Maintaining the Class Action Through Trial [17] The next three Grinnell factors—the risks of establishing liability, the risks of establishing damages, and the risks of maintaining the class action through trial—are usefully discussed together as a general analysis of the obstacles plaintiffs would face should the case go to trial. See Wal–Mart, 396 F.3d at 118–19. As discussed above, under the law of this Circuit a blanket strip-search policy such as the one to which plaintiffs were subjected is clearly unconstitutional. Therefore, the risks of establishing *387 liability at this time are minimal, if not nonexistent. However, the duty of this Court is not merely to determine the risks of establishing liability at this time. Rather, the Court must determine the risks of establishing liability should the settlement be rejected and the case go to trial at some future date. As discussed in McBean I, the case law in this area is far from stable. 228 F.R.D. at 498. Shain v. Ellison, the case invalidating a policy similar to the one at issue here, was decided by a divided panel of our Court of Appeals, compare 273 F.3d 56 (2d Cir.2001), with id. at 70 (Cabranes, J., dissenting), with id. at 69–70 (Katzmann, J., concurring), and it may well be in the interests of the class to obtain “a quick resolution[ ] while the law is in their favor.” McBean I, 228 F.R.D. at 498. The question of whether an en banc Court of Appeals, or, for that matter, the Supreme Court, will upset the holding of Shain takes this Court into the realm of speculation. It is enough to observe, however, that there are no guaranties in life, and while it appears likely that plaintiffs would be able to establish liability at trial, things change.
In any event, “it is certainly fair to conclude that even if the plaintiffs ... prevail[ ] in establishing their ... claim, they would ... face [ ] significant challenges in proving

damages.” Wal–Mart, 396 F.3d at 119. The parties have provided the Court with numerous examples of individual plaintiffs who have, at trial, proven liability on a stripsearch claim, only to be awarded nominal damages. See, e.g., Shain, 273 F.3d at 67 (no compensatory or punitive damages, one dollar in nominal damages); Sorensen v. City of New York, No. 98 Civ. 3356, 2000 WL 1528282, at *13 (S.D.N.Y. Oct. 16, 2000) (one dollar in nominal damages to two plaintiffs); Kaufman v. Rivera, 95 Civ. 5667, 1998 WL 314744, at *1 (S.D.N.Y. June 12, 1998) (nominal damages). The difficulty of proving damages in the instant matter is all the greater because the strip searches at issue here occurred after arraignment. Regardless of the defendants’ strip-search policy, class members would have been required to disrobe and be examined for legitimate medical reasons after arraignment but before entering the jail. (Fairness Hr’g Tr. 55–56.) Intervenors concede that class members being subjected to a post-arraignment strip search can “view it as kind of legal ... and standard operating procedure.” (Id. 23.)
Not surprisingly, intervenors point to individual stripsearch cases where plaintiffs have received tens of thousands of dollars after trial. See, e.g., Ciraolo v. City of New York, 216 F.3d 236 (2d Cir.2000) ($19,645 in compensatory damages); Kelleher v. Fearon, 90 F.Supp.2d 354 (S.D.N.Y.2000) ($125,000, remitted to $25,000). However, in both cases cited by intervenors, specific factors existed that do not exist generally with respect to this class. In Ciraolo, plaintiff offered proof at trial that the strip search resulted in post-traumatic stress disorder, which required therapy and medication. 216 F.3d at 237. In Kelleher, plaintiff was the passenger in a car pulled over for a traffic stop. Plaintiff was then placed in handcuffs, taken to a police station, and strip searched by an officer in the police station bathroom before being released without any charges being filed. 90 F.Supp.2d at 356–57. These examples, with their aggravating circumstances not present in the instant matter, are of little comfort to a class hoping to receive more than a nominal award.
Finally, with respect to maintaining the class action through trial, there is nothing to suggest that the class would be decertified at some point in the future. However, apart from maintaining certification, maintaining the class itself is a more difficult matter. Since the beginning of this action class counsel estimates that seven to ten percent of the class has passed away. (Fairness Hr’g Tr. 58.) This class is “truly transient,” and class counsel asserts that as each day passes “[p]eople are disappearing.” (Id.) The transience of the class is confirmed by the fact that 6,596 of the 40,352 class members identified from defendants’ records had no address, and of those for whom addresses did exist, 12,438 notices were returned to sender. (Nelson Letter, Dec. 1, 2005, at 2.) If this case were to go to trial, it is likely that the class would continue to be maintained
6

McBean v. City of New York, 233 F.R.D. 377 (2006)
under Fed.R.Civ.P. 23; however, if class members continue to leave the class or become unavailable *388 as time passes, the class may not be maintained in a more important sense.
Taken together, the risks of establishing liability, establishing damages, and maintaining the class through trial strongly favor settlement in this case. While there appears to be little risk in the way of proving liability, damages are a much more tenuous matter. The prospect of a trial in this case, with the risk of receiving only nominal damages, and the risk that during protracted litigation class members or become unreachable to collect even a nominal amount, strongly favors settlement.
E. The Ability of the Defendants to Withstand a Greater Judgment [18] [19] There is no doubt that defendant, the City of New York, could withstand a judgment greater than the nearly three million dollars in damages it will pay to the class under the settlement. However, fairness does not require that the City of New York empty its coffers before this Court will approve a settlement. Where there is a risk that an insolvent defendant could not withstand a greater judgment, this factor will strongly favor settlement. That is not the case here. However, the ability of defendants to pay more, on its own, does not render the settlement unfair, especially where the other Grinnell factors favor approval. D’Amato, 236 F.3d at 86.
F. The Range of Reasonableness of the Settlement Fund [20] “There is a range of reasonableness with respect to a settlement—a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in ... any litigation.” Wal–Mart, 396 F.3d at 96, quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir.1972). The final two Grinnell factors require that this Court determine whether the instant settlement falls within this “range of reasonableness.” The various uncertainties, risks, and costs associated with this litigation have been discussed at length above. However, simply discussing these uncertainties, risks, and costs does little to determine whether the terms of the settlement itself are reasonable in light of those factors. Of course uncertainty exists, but from the mere existence of uncertainty it does not follow that $750 or $1000 per class member is a reasonable settlement amount. Instead, reasonableness is best gauged by taking a broader view, examining the settlement as a whole, and comparing it to other settlements negotiated and approved in similar circumstances.
All parties have provided the Court with examples of various awards in individual strip-search cases—with

plaintiffs and defendants providing examples of nominal awards, and intervenors providing examples of awards of tens of thousands of dollars. In light of this variance, the settlement’s terms appear quite reasonable. Individual class members can decide on their own where on the scale of damages they fall, from nominal to substantial. If on the nominal side, the settlement’s award of $750 or $1000 is quite attractive; if on the substantial side, the settlement allows individuals to opt out and pursue their own claims, as thirty-six former class members have.
Intervenors object that the ability to opt out is not valuable to the class, because “[i]ndividual strip search claims, alone, are rarely pursued, even when a powerful claim exists.” (Intervenor–Pl. Mem. Supp. Obj. 27; see also Fairness Hr’g Tr. 21–23.) If true, however, this assertion supports approval of the settlement. If future individual claims barred by the settlement are claims that never would have been bought, and that therefore would have cost defendants nothing, then whatever payment defendants offer to extinguish those claims is a bonus. The three million dollars defendants stand to pay pursuant to the settlement may not seem like a large sum of money when compared to the over forty thousand members of the class who were subjected to strip searches. However, if virtually none of those individuals would have obtained any money from defendants if not for the settlement, defendants’ total payout appears much more reasonable. From the perspective of the class, individuals with stripsearch claims that no attorney would take (Intervenor– Pl.Mem.Supp.Obj.27), or that were too traumatizing to *389 pursue in court (Fairness Hr’g 21–23), now have the opportunity to receive $750 or $1000 without needing to obtain an attorney or suffer through a difficult legal proceeding.
The reasonableness of the settlement is further supported when compared to other settlements approved in similar cases. Intervenors point to the settlement in Tyson v. City of New York, No. 97 Civ. 3762(JSM), where a class of pre-arraignment detainees received individual awards ranging from $250 to $22,500, depending on whether the class member agreed to submit to an examination of his individual claim, and the results of that examination.3 See McBean I, 228 F.R.D. at 494. Under the Tyson settlement, class members who submitted claim forms and who were determined to be eligible for payment received an average of approximately $3,800 per person.4 Under the settlement before this Court, approved claimants are scheduled to receive an average of approximately $825 per person.5 Intervenors point to this discrepancy of $3000 per person as evidence of the settlement’s unfairness.

3

At the fairness hearing, the Court was advised that

approximately 500 members of the Tyson class

received no money, because outstanding debts to the

city were deducted from their payment under the

7

McBean v. City of New York, 233 F.R.D. 377 (2006)
settlement. (Fairness Hr’g Tr. 53–54.) Of course, in exchange for receiving no money, debts owed to the city were extinguished, so those individuals did receive a benefit from the Tyson settlement. This settlement, however, contains no such provision, which is a significant practical advantage to class members, many of whom are otherwise judgment proof and are unlikely to have to pay their debts from sources other than the settlement award.

4

This number is based on a total payout in Tyson of

approximately $22 million divided among 5,784

approved claimants. (Fairness Hr’g Tr. 30–31.)

5

This number is based on a total payout of $2,804,000

divided among 3,402 approved claimants.

To the extent that the Tyson settlement, with its different procedures and different class definition, is a useful comparison, it is one which supports approval of the instant settlement. First, the particularized awards based on individual examinations in Tyson created different incentives for class members to opt out, thus creating a difference in the composition of class members submitting claims under the two settlements. Under Tyson, an individual with a high-value claim was unlikely to opt-out, because his individual examination was likely to lead to a high payout, possibly near $20,000. Under the proposed settlement here, individuals with high-value claims should have opted out of the settlement, and therefore whatever individual award they may receive in separate litigation is not included in the total payout under the settlement, and does not raise the average payment.6 This addition of high-value claims to the top end of the Tyson class accounts for some of the discrepancy between the average awards.

6

For the sake of illustration, assume that the thirty-six

individuals who opted out of the settlement had high-

value individual claims, pursued those to trial, and were

awarded $25,000 each. If those awards, totaling

$900,000, are added to the settlement fund, the average

payout increases from $825 to almost $1100.

This difference in structure, however, only partially explains the difference between the payments in Tyson and the payments under the settlement here. The class members themselves were different in Tyson, and were bringing a different claim. In Tyson, the strip searches at issue occurred before individuals were arraigned, which means at the time of the strip search it had yet to be determined whether the individuals were going to be released, or whether bail was going to be set and they

were going to be remanded. Here, the strip searches occurred after arraignment, which means the individuals had already been remanded and were about to enter a city jail, since individuals released after arraignment were not subjected to such processing. Therefore, as discussed above, because class members in this case were entering the jail, they were required to disrobe and be examined for legitimate reasons, regardless of defendant’s stripsearch policy. The same cannot be said for the Tyson class. Prior to arraignment, the only reason Tyson class members were required to disrobe and be examined was the strip-search policy itself, and therefore the claimed dignitary harm in Tyson flowed directly from defendant’s *390 unconstitutional conduct, making proof of damages much easier for the Tyson class.
Furthermore, the fact that one search occurred before arraignment, and the other after, means that the individuals who were subjected to the different searches are themselves necessarily different, and different in important ways that affect settlement value. Because Tyson involved pre-arraignment searches, many members of the Tyson class were released after arraignment, without bail being set, based a judge’s determination that those individuals were responsible enough to return to court. The class at issue here, however, is composed completely of people who were remanded, meaning that a judge determined bail was necessary to assure future court attendance. In making this decision, the individual’s character, employment status, community ties, and criminal record were all considered. See N.Y.Crim. Proc. Law § 510.30(2)(a). As a whole, therefore, members of the Tyson class faired better on this evaluation than members of the class here, making the Tyson class more sympathetic plaintiffs, and more likely to be responsible enough to bring an action to trial. (See Fairness Hr’g Tr. 56–57.) Both of those factors increase the settlement value of Tyson.
The comparison with Tyson, and its $3800 average award, while on the surface appearing to make the settlement look somewhat unfair and unreasonable, actually favors approval of the settlement when all the relevant factors are considered. After factoring in the additional highvalue claims that were a part of the Tyson settlement, the more direct connection between conduct and damages that existed in Tyson, and the different composition of the Tyson class, the variance between the average award in this settlement and that in Tyson appears quite reasonable. If Tyson was a reasonable settlement—and all parties agree that it was at a minimum reasonable—then a settlement that awarded less money to a class of individuals whose claims had a settlement value less than those in Tyson would also be reasonable.
It is, of course, impossible to determine exactly how much of the difference between Tyson’ s $3800 average award this settlement’s $825 average award is due to the
8

McBean v. City of New York, 233 F.R.D. 377 (2006)

factors discussed above, and how much could be due to Tyson’s settlement being “more fair” to the class, as intervenors argue. However, to the extent that Tyson’s settlement was more beneficial to the Tyson class, the benefits did not come without a price. Attorneys’ fees in Tyson were over $3.5 million. (Fairness Hr’g Tr. 30.) Administration fees were over $10.5 million. (Id.) By way of comparison, the parties estimate that the total attorneys’ and administration fees associated with this settlement will be $750,000. (Letter from Genevieve Nelson, Assistant Corporation Counsel Dec. 7, 2005, at 2.) The Tyson settlement, therefore, while awarding average payments approximately 4.6 times higher than the settlement at issue here, achieved that result only by expending administration and attorneys’ fees at a rate 11 times higher per claimant.7 It is not surprising then, given this relative inefficiency, that plaintiffs and defendants both sought to achieve a settlement unlike that in Tyson. See McBean I, 228 F.R.D. at 495 (noting that Tyson had “significant administrative expenses” and that defendants “would not agree to a similar settlement in this case”).

7

The average award in Tyson was $3800, compared with

an average of $825 here, leading to a difference of

approximately 4.6 times. The total attorneys’ fees and

administration fees in Tyson was approximately $14

million, and 5,784 individuals received awards pursuant

to the Tyson settlement. That averages to $2420 in fees

per claimant. In this settlement, it is estimated that the

total fees will be $750,000, and approximately 3,400

individuals will receive settlement awards. That

averages to $220 in fees per claimant. The $2420 in

fees per claimant in Tyson is 11 times greater than the

$220 in fees per claimant here.

The reasonableness and fairness of this settlement is made all the more evident when it is compared to the settlement approved in Maneely v. City of Newbrugh, 01 Civ. 2600(CLB). The Maneely class consisted of “non-felony arrestees who ... were arrested on charges unrelated to the use or possession of drugs or weapons, and were strip searched prior to being placed in a holding cell.” (Maneely Fairness Hr’g Tr. 11, July 21, 2005.) Each class member who submitted a valid claim form received $1000. (Id.) The Maneely *391 award is only slightly higher than the award here at issue, and yet the class members in Maneely were subjected to a pre-arraignment strip search similar to the class in Tyson.
The settlement here at issue does indeed fall within the range of reasonableness. The terms of the settlement are fair and reasonable when considered in isolation, and they appear even more so when compared to other reasonable settlements approved by other courts in similar situations. The final two Grinnell factors strongly favor the settlement.

G. The Settlement is Substantively Fair [21] Each of the Grinnell factors, with the exception of the defendants’ ability to withstand greater judgment, favors the settlement. Prolonged litigation is not in the interests of the class, as evidenced by the fact that the class strongly favors the settlement. There would be great risk and uncertainty of recovery should the case go to trial, and when evaluated and compared to other settlements in similar cases, the settlement negotiated here is eminently reasonable. For all these reasons, the settlement is substantively fair.

III. Awards to Named Plaintiffs The settlement provides “bonus or incentive” awards to class representatives in the following amounts: David Cence, $25,000; Wanda Harvey, $35,000; Margarita Plyassounova, $30,000; Marcel Sarfati, $25,000; and Federico Tenorio, $25,000.8 (Settlement ¶ 46.) This Court can, it its discretion, adjust the settlement’s incentive awards to named plaintiffs while approving the remaining terms of the settlement. McBean I, 228 F.R.D. at 494–95. Intervenors claim that the incentive awards are too high, with the gravamen of this argument being that the high awards for named plaintiffs shed doubt on the fairness of the settlement to absent class members. (See Intervenor– Pl. Mem. Supp. Obj. 20–24.) However, this Court has already rejected that argument, and determined that by negotiating the general terms of the settlement before negotiating the awards to the named plaintiffs, the incentives of the named plaintiffs were never counter to those of the class as a whole. In any event, lowering the awards now would not alter the incentives that existed at the time the settlement was negotiated. Therefore, intervenors present no argument for lowering the incentive awards at this time, after it has already been determined that the settlement is both procedurally and substantively fair.

8

The settlement also provides for an award of $35,000 to

Toby Cohen, but Ms. Cohen was removed as a class

representative by this Court’s order of August 10, 2005,

and therefore will receive no bonus award under the

settlement.

[22] Despite the settlement’s fairness, class counsel has done little to justify the compensation to named plaintiffs under the settlement. While counsel themselves assert that “named plaintiffs ... are genuinely interested in remedying the harm that has been inflicted on others ... [and that they] assumed this responsibility even after being told that serving as class representative would delay resolution of their individual claims” (Pl.Mem.Opp.Obj. 12), counsel has provided nothing to establish exactly what these
9

McBean v. City of New York, 233 F.R.D. 377 (2006)
representatives have done in furtherance of the settlement. The complete lack of evidence in the record to support these awards, such as affidavits or time sheets, could justify a reduction of the amounts set forth in the settlement. However, for the reasons stated below, the awards will be approved.
First, the awards, along with the rest of the settlement, were negotiated under the supervision of Judge Katz, and so there is a presumption that they are the reasonable result of arm’s-length negotiations. Second, the amount of the awards—ranging from $25,000 to $35,000—appears to be in line with the amount of damages awarded in highvalue strip-search claims, based on the examples provided by intervenors. Third, when compared to incentive awards given generally to named plaintiffs across a variety of class actions, the awards given to the class representatives under the settlement here fall solidly in the middle of the range. See *392 Fears v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2005 WL 1041134, at *3 (S.D.N.Y. May 5, 2005) (collecting cases illustrating a range of incentive awards and approving an award of $25,000). Finally, to the extent that class counsel should have provided this Court with affidavits or time sheets supporting the awards to class representatives, the class representatives themselves should not be held responsible for their attorneys’ dereliction. Class counsel will not receive any percentage of the awards given to the class representatives under the settlement (Nelson Letter, Dec. 7, 2005, at 2), and therefore a reduction of the awards would penalize only the named plaintiffs. Therefore, this Court finds no reason to lower the awards to named plaintiffs that were negotiated under the supervision of Judge Katz, and the awards will be approved.
IV. Attorneys’ Fees [23] The settlement provides for class counsel to receive $500,000 in attorneys’ fees for work performed to this point in the litigation, and additional fees for the ongoing administration of the settlement. The attorneys’ fees provision of the settlement will be approved.
[24] The attorneys’ fees received by class counsel in this case will not be awarded from a “common fund” created for the class as a whole. Regardless of the amount class counsel receives, every class member who submitted a valid claim form will receive either $750 or $1000. This case is therefore different from other class action settlements, where the incentives of the class members and the attorneys diverge on the issue of attorneys’ fees. If money paid to the attorneys comes from a common fund, and is therefore money taken from the class, then the Court must carefully review the award to protect the interests of the absent class members. See, e.g., Wal– Mart, 396 F.3d at 123–24 (stating that in setting the amount of attorneys’ fees, “settlement payments to

approximately five million absent class members are at stake”); Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir.2000) (articulating factors to examine when determining “reasonable” attorneys’ fees in “common fund cases”). If, however, money paid to the attorneys is entirely independent of money awarded to the class, the Court’s fiduciary role in overseeing the award is greatly reduced, because there is no conflict of interest between attorneys and class members.9

9

One could imagine a situation where exorbitant

attorneys’ fees awarded as part of a settlement, even if

separate from money paid to the class, would give rise

to a suspicion that the attorneys had persuaded named

plaintiffs to agree to a settlement that was not in the

class’s interests, because it was in the attorneys’

interests that the settlement, and therefore the fee

award, be approved. That is not the case here, however,

because the Court has already determined that the

settlement itself is fair and reasonable.

In any event, the attorneys’ fees agreed to under the settlement are reasonable. While the Court is not bound by the agreement between the parties, the fact that the award was the product of arm’s-length negotiations under the supervision of Judge Katz weighs strongly in favor of approval. Furthermore, while the fee award was set before either party knew the total number of hours that would eventually be worked by class counsel, or the total amount of money that would eventually be paid to the class, a second look at the fee award, with knowledge of both the hours worked and money paid, supports its reasonableness.
Class counsel performed over 1400 hours of work on behalf of the class as of November 1, 2005 (Cardinale Decl. Ex. 1), and have no doubt worked numerous additional hours since.10 Using an hourly rate of $300 per hour, the total hours worked support an award of approximately $420,000, a figure that is reasonably related to the $500,000 in the settlement, especially considering that two months of additional work has been done that is not included in that figure.11

10

After November 1, 2005, class counsel prepared for the

fairness hearing on December 2, 2005, and submitted a

supplemental “Plaintiffs’ Memorandum of Law” after

the hearing on December 19, 2005.

11

This is not an attempt to rigorously calculate a lodestar

figure. The attorneys’ fees will be awarded pursuant to

the settlement, not an independent lodestar calculated

by the Court. However, this rough calculation is useful

to illustrate the reasonableness of the fee award

negotiated in the settlement.

10

McBean v. City of New York, 233 F.R.D. 377 (2006)
*393 The total payout to the class will be approximately $2,800,000. Attorneys’ fees of $500,000 represent an award of approximately 18% of the “fund” awarded to class members. In common fund cases, awards in the range of 25% are common, see Goldberger, 209 F.3d at 51–52 (rejecting a 25% “benchmark” but acknowledging that “district courts across the nation have apparently eased into the practice of ‘systematically’ awarding fees in the 25% range”), and while this is not a common fund case, the fact that the award here is lower than many awards actually taken from a common fund, at the expense of absent class members, is further evidence of its reasonableness.

CONCLUSION
The settlement negotiated between the parties is fair, reasonable, and adequate. Therefore, plaintiffs’ motion to approve the settlement and award attorneys’ fees (Doc. # 71) is granted. The Court approves the settlement, the payments to class representatives, and the attorneys’ fees.
SO ORDERED.
	  

11

 
 McBean v. City of New York, Not Reported in F.Supp.2d (2003)

2003 WL 21277115 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kadian MCBEAN, et al. Plaintiffs, v.
THE CITY OF NEW YORK, et al. Defendants.
No. 02 Civ. 5426(GEL). | June 3, 2003.
City moved to disqualify attorney representing claimants challenging alleged policy of strip searching misdemeanor arrestees without reasonable suspicion of weapons or contraband concealment. The District Court, Lynch, J., held that: (1) counsel would not be disqualified for representing city in case in which he lacked substantial involvement, and (2) counsel would not be disqualified due to involvement in case differing from present case.
Motion denied.
Attorneys and Law Firms
Michael A. Cardozo, Corporation Counsel of the City of New York (Deborah I. Meyer), New York, NY, for defendant City of New York, of counsel.
Richard J. Cardinale, Cardinale Hueston & Marinelli, Brooklyn, NY, and Robert N. Isseks, Middletown, NY, for plaintiffs Kadian McBean, et al.
Opinion
OPINION AND ORDER
LYNCH, J.
*1 In this putative class action for federal civil rights violations arising from two alleged policies or practices of the New York City Deparment of Corrections (“DOC”) applied at New York City jails, defendant New York City has moved to disqualify plaintiffs’ counsel on the ground that one of them previously represented the City in similar litigation and had access to confidential materials. The motion will be denied.

violation of the First, Fourth, and Fourteenth Amendments and the clear mandate of the Second Circuit in Shain v. Ellison, 273 F.3d 56 (2d Cir.2001), misdemeanor arrestees brought to New York City jails have been subject to strip searches in the absence of any “reasonable suspicion that the detainees [were] concealing weapons or contraband,” (Second Am. Compl. ¶¶ 1(i), 12), and (2) that, in violation of the right of detainees “to refuse medical care” under the First, Fourth, and Fourteenth Amendments, female misdemeanor detainees at New York City jails are subject to “nonconsensual gynecological examinations.” (Id. ¶ ¶ 1(ii), 21.)

The City has moved to disqualify plaintiffs’ counsel Michael Hueston based upon Hueston’s work for the City as an Assistant Corporation Counsel (“ACC”) on two earlier actions filed in this District on behalf of detainees who had been strip-searched while in DOC custody: Tyson v. City of New York, Dkt. No. 97 Civ. 3762(KMW), and Kellner v. City of New York, Dkt. No. 99 Civ. 4082(JSM). Tyson, brought in 1997 and settled on July 5, 2001, was a class action on behalf of “all persons who have been or will be arrested for misdemeanor or noncriminal offenses in New York and Queens Counties and then were or will be strip searched pursuant to City, DOC, and NYPD policy, practice and custom.” (Meyer Decl. Ex. E ¶ 27.) Kellner was an individual action by a felony arrestee who was stripped searched while in DOC custody on January 3, 1997; it was brought in 1999 and settled on February 9, 2001. The City also moves to disqualify Hueston’s co-counsel Richard J. Cardinale and Robert N. Isseks -Cardinale because he is Hueston’s law partner, and Isseks because of his “close working relationship[ ]” with Hueston in this and other civil rights class actions. (D. Mem. at 3.)

The City made a similar motion to disqualify these attorneys in a pending Eastern District of New York class action, Spinner v. City of New York, Dkt. No. 01 Civ. 2715(CPS), in which plaintiffs allege similarly illegal strip searches by the New York Police Department and DOC in Brooklyn precincts and jails. That motion was referred to Magistrate Judge Cheryl L. Pollack, who denied it on May 20, 2000. Spinner v. City of New York, slip op. at 44 (E.D.N.Y. May 20, 2002) (“Spinner I” ). Judge Pollak later denied the City’s motion for reconsideration based on “newly-discovered evidence.” Spinner v. City of New York,, slip. op. at 2 (E.D.N.Y. Jan. 28, 2003) (“Spinner II” ).1

1

Those rulings are now on appeal before Judge Sifton.

BACKGROUND The complaint in this action alleges principally (1) that, in

*2 The parties have stipulated that this Court may consider the factual record presented before Judge Pollak in Spinner. Having reviewed that record and Judge
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McBean v. City of New York, Not Reported in F.Supp.2d (2003)

Pollak’s thorough and well-reasoned opinions, the Court agrees with her findings of fact (Spinner I, slip op. at 32-41; Spinner II, slip op. at 19-22), which, to the extent relevant to the instant motion, will be adopted here. Similarly, Judge Pollak extensively and accurately states the relevant case law on the issues raised in this motion (Spinner I, slip op. at 14-27), so there is no need to repeat her scholarly recitation of the underlying law of disqualification. Rather, it will be sufficient to state and apply the appropriate tests for disqualification under these circumstances.
DISCUSSION
The City bases its motion for disqualification on Canons 4 and 9 of the Code of Professional Responsibility. Canon 4 provides that “A lawyer should preserve the confidences and secrets of a client.” In reviewing disqualification motions under Canon 4, the Second Circuit has held that counsel should be disqualified if:
(1) the moving party is a former client of the adverse party’s counsel;
(2) there is a substantial relationship between the subject matter of the counsel’s prior representation of the moving party and the issues in the present lawsuit; and
(3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.
Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir.1983). Canon 9 provides that lawyers “should avoid even the appearance of impropriety,” and, in furtherance of that goal, Disciplinary Rule (“DR”) 9-101(B) prohibits a lawyer from “accept[ing] employment in a matter in which he had substantial responsibility while he was a public employee.” A “matter,” for the purposes of this Rule, is “a discrete and isolatable transaction or set of transactions between identifiable parties.” Int’l Union. United Auto. Aerospace and Agric. Implement Workers of Am. v. Nat’l Caucus of Labor Committees, 466 F.Supp. 564, 568 (S.D.N.Y.1979) (quoting ABA Formal Op. No. 342 (Nov. 24, 1975), in 62 A.B.A.J. 517 (1975)). Thus, a lawyer should be disqualified only if (1) the pending matter involves the same transaction or set of transactions between identifiable parties and (2) he previously had substantial responsibility for the same matter as a public employee. Laker Airways Ltd. v. Pan Am. World Airways, 103 F.R.D. 22, 29 (D.D.C.1984).

I. Tyson [1] The City does not argue that Hueston’s involvement with Tyson should disqualify him under DR 9-101(B); the parties apparently agree that he did not participate substantially in that case within the meaning of the rule. (D. Mem. at 20; P. Mem. at 23.)
With respect to Canon 4, the first element of the Evans test is satisfied; the City was indisputably a “former client of the adverse party’s counsel,” Hueston. The parties dispute whether Tyson and the instant case bear a “substantial relationship” to each other, and whether Hueston “had access to, or was likely to have had access to, relevant privileged information.”
*3 There is some basis for the City’s claim that the Tyson litigation is substantially related to the instant litigation, since it too was a class action aimed at the same defendant’s alleged blanket policy or practice of strip-searching misdemeanor arrestees.2 But this Court need not address the relationship between the instant matter and the Tyson case because it agrees with Judge Pollak’s key findings on the remaining element of the Canon 4 inquiry: access or likely access to relevant privileged information. First, there is no presumption that Hueston “had access” to confidential materials, since he did not have “substantial responsibility” for Tyson. Spinner I, slip op. at 41. Second, Hueston did not actually obtain confidential information relevant to Tyson. Spinner I, slip op. at 36; Spinner II, slip op. at 19. Therefore, Hueston’s role in the Tyson litigation does not call for disqualification here.

2

Judge Pollak, of course, did not address any similarity

between the instant case and Tyson. Her conclusion that

Spinner and Tyson were not “substantially identical or

... clearly connected” is of limited relevance here, since

it was based primarily on her findings that “separate

and independent agencies [were] involved” in the two

cases, and that Tyson, in contrast to Spinner, involved a

written directive. Spinner I, slip. op. at 34. Here, in

contrast, the challenged policy was adopted by the

same agency (DOC) as in Tyson, and the policy

arguably is derived from some of the same written

pronouncements as those challenged in that case. (See

D. Reply Mem. at 6-7.)

II. Kellner [2] In contrast to Tyson, the parties do not dispute that Hueston, while an ACC, “had substantial responsibility” for the Kellner case. This Court finds, however, that the Kellner action was sufficiently distinct from the instant action that it is neither “substantially related” to it, nor “the same matter,” such that disqualification is called for. True, both Kellner and the complaint here involve the

2

McBean v. City of New York, Not Reported in F.Supp.2d (2003)

same agency, DOC, operating, arguably, under the same underlying policy. But the very fact that multiple individual and class action lawsuits have been filed and litigated, all attacking that “policy” in different circumstances or as applied to different types of arrestees and detainees, indicates that not all injuries traceable to that policy are the same “matter”; certainly they are not all the result of a single transaction or set of transactions. The various documents relating to DOC’s policies are no longer confidential, if they ever were, and their application to different groups of arrestees at different institutions at different times has resulted in multiple litigations raising different factual and legal issues. Kellner, in particular, involved a felony arrestee, and this case expressly involves only misdemeanor arrestees, since Shain applies only to them. See Shain, 273 F.3d at 59. Kellner was an individual action that dealt only with the legality of the strip search of one particular plaintiff in 1997; this case, in contrast, involves a class of arrestees who have been detained “since 1999” (Compl.¶ 5), and challenges policies relating both to strip searches and to gynecological examinations. The strip search alleged in Kellner was conducted by a DOC officer at Manhattan Central Booking (Meyer Decl. Ex. F ¶ 13), whereas the complaint here alleges strip searches at six New York City jails (Compl.¶ 5). Thus, the cases are clearly not the “same matter,” and DR 9-101 does not prohibit Hueston from handling this case after having represented the City in Kellner.
*4 In arguing that DR 9-101 applies here, the City’s relies heavily on General Motors v. City of New York, 501 F.2d 639 (2d Cir.1974), in which the Court of Appeals disqualified a former Justice Department lawyer who had handled government antitrust litigation against General Motors from later representing New York City in its own antitrust suit against that company. That reliance is misplaced. While the City accurately cites broad dicta in General Motors that “there lurks great potential for lucrative returns in following into private practice the course already charted with government resources” (D. Mem. at 20, quoting General Motors, 501 F.2d at 650), courts considering disqualification motions under DR 9-101 have been primarily concerned with the confidential information an attorney obtains through government employment. See, e.g., Twin Laboratories, Inc. v. Weider Health & Fitness, Dkt. No. 89 Civ. 949(MBM), 1989 WL 49368, at *3 (S.D.N.Y. May 4, 1989) (citing potential for “exploitation of secrets” gained from the “broad power of the government to obtain discovery”). The General Motors court itself placed great emphasis on the information the attorney obtained during his government service. In distinguishing that case from United States v. Standard Oil Co., 136 F.Supp. 345 (S.D.N.Y.1955), the court emphasized the “likelihood that information pertaining to the pending matter reached the attorney” during his government employment, General Motors, 501 F.2d at 651 (quoting Kaufman, The Former

Government Attorney and the Canons of Professional Ethics, 70 Harv. L.Rev. 657, 665 (1957)), and found the two cases at issue to be the same “matter” largely because “virtually every overt act of attempted monopolization in the City’s complaint is lifted in haec verba from the Justice Department complaint.” Id. at 650. It deemed relevant the past history of alleged “predatory practices,” which the attorney had been familiar with from his work at the Justice Department, only because that pattern was central to an “essential element in proving ... intent to monopolize or an abuse of monopoly power,” as well as to the possible defense that “GM is a passive recipient of monopoly power.” Id. Here, DOC’s practices at the time of Kellner in 1997 are irrelevant to the principal issue here: whether or not the members of this plaintiff class, which consists only of persons detained “since 1999,” were in fact strip searched in violation of Shain. If General Motors required disqualification here, then any ACC who personally handled any of the large variety of civil rights issues that come up in the City’s Law Department would effectively be “sterilize[d] ... in too large an area of law for too long a time,” and “prevent[ed] ... from engaging in practice of the very specialty for which the government sought his service.” Standard Oil, 136 F.Supp. at 363.
Nor are the instant case and Kellner “substantially related” under the Evans Canon 4 test. “The fact that both matters share a common area of law” - the constitutionality of strip searching arrestees - “or that the cases involve ... the same agency are not a sufficient basis upon which to find substantial relationship.” Spinner I, at 23 (citing Laker, 103 F.R.D. at 40.) To the extent that a “substantial relationship” exists here, it is among the legal issues, not the defendants or the facts. See Twin Laboratories, Inc. v. Weider Health & Fitness, Dkt. No. 89 Civ. 949(MBM), 1989 WL 49368, at *5 (S.D.N.Y. May 4, 1989) (citing absence of overlap of “factual matters”). Kellner was settled after minimal discovery, and what facts there were (most notably, the fact that plaintiff in Kellner was a felony arrestee) distinguish, rather than replicate, the facts alleged here.
*5 The City argues that Kellner nevertheless became, from June 1999 through January or February 2000, substantially related to the instant case because Hueston, unaware at first that the plaintiff had been charged with a felony when he was searched, treated the case as an opt-out from the Tyson class action. (D. Mem. at 7.) However, Hueston’s subjective belief that his plaintiff was a misdemeanor arrestee is not relevant to the objective reality of whether the two actions are substantially related. Hueston’s understanding of the nature of the Kellner case is relevant only to the extent that it affected his actions, and specifically, to whether he, as a result of this (mis)understanding, actually obtained confidential information about misdemeanor arrestee cases such as Tyson and the instant case. But this Court
3

McBean v. City of New York, Not Reported in F.Supp.2d (2003)

and Judge Pollak have both found that he did not receive any such information. Since Kellner is not itself substantially related to this litigation, whatever confidential information he acquired about the factual particulars of that case is of no consequence under the Evans standard.
CONCLUSION

For the reasons stated above, defendant’s motion to disqualify Michael Hueston is denied. Since the motion to disqualify Richard Cardinale and Robert N. Isseks is based on imputing Hueston’s alleged conflict to his associates, that motion is also denied.
SO ORDERED.
	  

4

 
 McBean v. City of New York, Not Reported in F.Supp.2d (2007)

2007 WL 473711 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kadian MCBEAN, et al., Plaintiffs, v.
CITY OF NEW YORK, et al., Defendants.
No. 02Civ.5426(GEL)(THK). | Feb. 13, 2007.
Opinion
MEMORANDUM OPINION AND ORDER
KATZ, Magistrate J.
*1 In this prisoners’ civil rights action, the Intervenor-Plaintiffs, representing a putative class, challenge certain policies and practices of the New York City Department of Correction (“DOC”) with respect to strip searches of pretrial detainees who have been arrested on misdemeanor charges and compulsory gynecological examinations of female detainees. Pretrial discovery has been ongoing under this Court’s supervision, and it is anticipated that a motion by Plaintiffs for class certification, and a motion by Defendants for summary judgment, will be filed when fact discovery is completed. Presently before the Court is a motion brought by Arthur Wallace, David Sanchez, Julio Phitts, and Chareama Bolds (hereinafter “the Proposed Intervenors”), pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, to intervene as additional plaintiffs. Defendants oppose the motion.
DISCUSSION
Federal Rule of Civil Procedure 24(b) provides, in pertinent part, that intervention is permissible “[u]pon timely application ... (2) when an applicant’s claim or defense and the main action have a question of law and fact in common.” Fed.R.Civ.P. 24(b). That the motion be timely is a prerequisite for intervention. See Mastercard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 391 (2d Cir.2006).
The determination of the timeliness of a motion to intervene is within the discretion of the district court,

evaluated against the totality of the circumstances before the court. Circumstances considered in this determination include: (1) how long the applicant had notice of the interest before [he] made the motion to intervene; (2) prejudice to existing parties from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.
D’Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir.2001) (internal citations and quotation marks omitted); accord Holocaust Victim Assets Litig., 225 F.3d 191, 198 (2d Cir.2000). “[T]he length of an applicant’s delay ... is among the most important factors to consider in a timeliness decision.” Hnot v. Willis Group Holdings Ltd., NO. 01 Civ. 6558(GEL), 2006 WL 3476746, at *2 (S.D.N.Y. Nov. 30, 2006) (internal citation and quotation marks omitted).
There is no apparent dispute that the Proposed Intervenors’ claims are essentially identical to the claims raised by the current Plaintiffs. Each of the Proposed Intervenors contends that he/she was subjected to illegal strip searches, without reasonable suspicion, while he/she was in the custody of DOC.1 (See Affirmation of Elizabeth S. Saylor, Esq., dated Dec. 19, 2006, ¶ ¶ 3-5, 11.) Moreover, the Proposed Intervenors are represented by the same counsel as Plaintiffs, so there is no risk of inconsistent or duplicative litigation strategies. Further, as Plaintiffs argue, permitting the Proposed Intervention will assist in developing and resolving the factual and legal disputes in the litigation, including the class certification determination, because the claims of the Proposed Intervenors, which are typical of those of the proposed class, will further elucidate DOC’s practices, most particularly its practices in recent months.
*2 Defendants oppose the motion to intervene, arguing, primarily, that it is untimely. They point out that the original intervenor action was filed on April 7, 2005, and thus the litigation has been proceeding for almost two years. There has been very extensive pretrial discovery, and a February 28, 2007 deadline for the completion of fact discovery has been set by the Court. Finally, Defendants observe that none of the Proposed Intervenors has submitted an affidavit or other admissible evidence which indicates when he/she first became aware of the litigation-a critical fact in determining whether there has been undue delay. (See Defendants’ Opposition to Intervenors’ Motion to Add Additional Intervenors (“Defs.’ Mem.”), at 4.)
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McBean v. City of New York, Not Reported in F.Supp.2d (2007)

The Proposed Intervenors respond that they did not learn that there was an ongoing lawsuit concerning strip searches until November 2006, and they filed their motion to intervene within three weeks of acquiring that knowledge. In fact, two of the Proposed Intervenors filed their motion within just a few days of learning about the lawsuit. (See Declaration of Elizabeth S. Saylor, Esq. in Reply to Defendants’ Opposition to Motion to Intervene, dated Jan. 12, 2007, ¶¶ 4-5.)2 Moreover, according to the Proposed Intervenors’ counsel, they could not have brought many of their claims at an earlier time, since they were strip searched in October and November of 2006. (See Intervenor-Plaintiffs’ Reply Memorandum in Support of Motions to Intervene, dated Jan. 12, 2007 (“Pls.’ Reply Mem.”), at 3-4.) Accepting these contentions as true, the motion was brought expeditiously.3
With respect to the second factor in assessing timeliness-prejudice to the adversary-Defendants argue that there is now a February 28, 2007 deadline for the completion of pretrial discovery and permitting the intervention would inevitably lead to further burdensome discovery and an inability to meet the deadline. (See Defs.’ Mem. at 5.) The need to conduct additional discovery, standing alone, does not give rise to such prejudice as to favor Defendants on this factor. The Court appreciates that the pretrial discovery has been prolonged and burdensome to Defendants. Nevertheless, the addition of four Plaintiffs will not substantially add to that burden. The only additional discovery that will be required pertains to the specific experiences of the Proposed Intervenors, and should be quite discrete. Since they are represented by the same counsel as the present Intervenor-Plaintiffs, additional discovery relating to DOC policies and practices, which has placed the greatest burden on Defendants, will not be needed or authorized. Moreover, discovery is ongoing, and the parties are still engaged in efforts to obtain records pertaining to the present Intervenor-Plaintiffs. Thus, the addition of four Intervenor-Plaintiffs is not likely to lead to substantial delay in completing discovery or resolving the claims in the litigation. This case is, therefore, easily distinguishable from other actions in which courts have found that the untimely addition of intervenors would lead to substantial prejudice to the existing parties because, for example, discovery had been completed, a lengthy settlement process had resulted in a settlement that would need to be reconsidered if intervention was permitted, and dispositive motions had been decided prior to the

proposed intervention. See, e.g., D’Amato, 236 F.3d at 84 (“late intervention would potentially derail the settlement and prejudice the existing parties”); Holocaust Victims Assets Litig., 225 F.3d at 199 (“intervention at this late stage would prejudice the existing parties by destroying their Settlement and sending them back to the drawing board”); Hnot, 2006 WL 3476746, at *5 (“The original complaint was filed over five years ago, fact discovery has been complete for over two and [a] half years, and the class has been certified for over a year and a half. The Court has resolved over seven motions, including several summary judgment motions, a motion to amend the complaint, a motion for sanctions, a motion to compel nationwide discovery, and motions to certify and modify the class. Granting [the] motion would effectively require the Court to start from square one....”).
*3 As for any prejudice to the Proposed Intervenors if their motion is denied, they argue, and the Court agrees, that, as individuals with limited resources, it would be burdensome, as well as inefficient and a waste of judicial resources, to require them to file a separate, but related case. (See Pls.’ Reply Mem. at 6.)
Finally, the Proposed Intervenors suggest that permitting the intervention would assist in the development of the record, and may prove to be necessary if the Court determines that subclasses are required, because the Proposed Intervenors, in contrast to the original Intervenor-Plaintiffs, all claim to have been subjected to illegal strip searches in recent months, after Defendants settled the original class claims in this action and claimed to have remedied other challenged practices. (See Pls.’ Reply Mem. at 6-7.) The Court cannot speculate on future developments in the litigation, but, in the absence of any meaningful prejudice to the present parties, the wiser practice would be to err on the side of inclusiveness, by permitting intervention.
For the above reasons, the Court concludes that the motion to intervene is timely, will not result in any significant prejudice to the present parties, and satisfies the requirements of Federal Rule of Civil Procedure Rule 24(b). Accordingly, Arthur Wallace, David Sanchez, Julio Phitts, and Chareama Bolds’s motion to intervene as plaintiffs in this action is granted.
So Ordered.
	  

Footnotes

1

Chareama Bolds, like current Plaintiffs Afifa Hudspeth and Doris Eswards, also contends that she was subjected to a forced

gynecological examination while in DOC custody.

2

Apparently, some of the Proposed Intervenors were aware of the earlier class action settlement in this action, but were not aware

2

McBean v. City of New York, Not Reported in F.Supp.2d (2007)

that the case had continued with respect to the additional claims of the Intervenor-Plaintiffs. (See id. ¶ 6.)

3

As Defendants point out, the assertions about when the Proposed Intervenors learned about the litigation comes from Plaintiffs’

counsel, rather than the Proposed Intervenors themselves. The Court attributes this deficiency to the fact that the motion was

streamlined-with the general imprimatur of the Court-in order to expedite its filing and resolution. If discovery reveals that the

Proposed Intervenors’ actual knowledge of the litigation is not what their counsel has represented, appropriate relief can be sought,

including revisiting the intervention determination.

	  

3

 
 SDNY CM/ECF Version 3.0.5 - Docket Report

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CASREF, ECF, LEAD, REOPEN
U.S. District Court United States District Court for the Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:02-cv-05426-GEL-THK

Mcbean, et al v. The City of New York, et al Assigned to: Judge Gerard E. Lynch Referred to: Magistrate Judge Theodore H. Katz Demand: $0 Member case: (View Member Case) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 07/15/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Kadian Mcbean

represented by Richard Cardinale Cardinale & Marinelli 26 Court Street Suite 1815 Brooklyn, NY 11242 718-624-9391 Fax: 718-624-4748 Email: rcardinaleesq@gmail.com

Plaintiff Cindia Cruz

Robert Nathan Isseks Robert N. Isseks 6 North Street Middletown, NY 10940 (845) 344-4322 Fax: (845) 341-1760 Email: isseks@frontiernet.net
represented by Richard Cardinale (See above for address)

Robert Nathan Isseks (See above for address)

Plaintiff Wanda Harvey

represented by Richard Cardinale (See above for address)

Robert Nathan Isseks (See above for address)

Plaintiff

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Margarita Plyassounova individually and on behalf of a class of all others similarly situated
Plaintiff Toby Cohen
Plaintiff Brenda Hopkins
Plaintiff Rhonda Jones
Plaintiff Marcel Sarfati individually and on behalf of a class of all others similarly situated
Plaintiff Lisa Gregorio individually
V. Defendant The City of New York
2 of 37

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represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)

represented by Brett Harris Klein Leventhal & Klein, LLP 60 Bay Street, 7th Floor Staten Island, NY 10301

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Defendant William J. Fraser (Commissioner of the New York City Department of Corrections)
Defendant Gary Lanigan (First Deputy Commissioner of the New YOrk city Department of Corrections)
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718)-556-9600 Fax: 718)-448-8685 Email: bklein@leventhalklein.com TERMINATED: 01/06/2006 LEAD ATTORNEY
Deborah I. Meyer Michael D. Hess Corporation Counsel, City of New York 100 Church Street Room 6-119 New York, NY 10007 (212) 788-0963 TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212) 788-8714 Fax: (212) 788-0367 Email: GNELSON@LAW.NYC.GOV LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Deborah I. Meyer (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Deborah I. Meyer (See above for address)
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SDNY CM/ECF Version 3.0.5 - Docket Report
Defendant Robert N. Davoren (Chief of Department of the New York City Department of Corrections)
Defendant Bernard Kerik (former Commissioner of the New York City Department of Corrctions)
Defendant Doe 1 (a fictitiousname fo the Warden or Chief Executive Officer of Fikers Island Correctional Facility) Defendant John/Jane Doe no. 1 (a fictitious name for the Warden of the Rose M. Singer women's jail at Rikers Island) Defendant
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TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Deborah I. Meyer (See above for address) LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Deborah I. Meyer (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
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John/Jane Doe no. 2 (a fictitious name for the Chief Medical Officer of Rikers Island)
Defendant John/Jane Doe no. 3 (a fictitious name for the Chief Medical Officer of the Rose M. Singer women's jail at Rikers Island)
Defendant John/Jane Correction Officers Jane Does 1-500 (a fictitious name for the correction officer who strip searched the plaintiffs at Rikers Island)
Defendant John/Jane Doctor/Nurse John/Jane Does 1-50 (a fictitious name for the health care professionals who perofrmed nonconsensual gynecological procedures on the plaintiffs at the Rose M. Singer women's jail at Rikers Island), the individual defendants being sued both
Defendant Michael Bloomberg Mayor of the City of New York TERMINATED: 09/05/2007
Defendant James Capoziello Deputy Commissioner of DHMH
Defendant Robert N. Davoren Chief of of Department of DOC
Defendant Martin F. Horn Commissioner of DOC
Defendant

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represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY

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New York City Department of Correction (DOC) TERMINATED: 09/05/2007 Defendant P.H.S. Medical Services, P.C. Defendant Dr. Trevor Parks Defendant Thomas R. Frieden Commissioner of DHMH Movant Foster Thomas
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represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Mariann Meier Wang Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212-763-5000 Fax: 212-763-5001 Email: mwang@ecbalaw.com LEAD ATTORNEY
Matthew D. Brinckerhoff Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212-763-5000 Fax: 212-763-5001 Email: mbrinckerhoff@ecbalaw.com LEAD ATTORNEY
Richard D. Emery Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212-763-5000 Fax: 212-763-5001 Email: remery@ecbalaw.com LEAD ATTORNEY
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Intervenor Plaintiff Kenneth Williams
Intervenor Plaintiff Daniel Velazquez
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Elizabeth Sykes Saylor Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212-763-5065 Fax: 212-763-5001 Email: esaylor@ecbalaw.com ATTORNEY TO BE NOTICED
represented by Mariann Meier Wang (See above for address) LEAD ATTORNEY
Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 (212) 763-5000 x5054 Fax: (212)763-5001 Email: emukherjee@ecbalaw.com ATTORNEY TO BE NOTICED
represented by Mariann Meier Wang (See above for address) LEAD ATTORNEY
Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY
Richard D. Emery
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Intervenor Plaintiff Joel Ramos
Intervenor Plaintiff Doris Edwards
Intervenor Plaintiff Samuel Figueroa
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(See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Mariann Meier Wang (See above for address) LEAD ATTORNEY
Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY
represented by Richard D. Emery (See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY
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Intervenor Plaintiff David Gonzalez
Intervenor Plaintiff Afifa Hudspeth
Intervenor Plaintiff Alan S. Olson
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Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Richard D. Emery
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Intervenor Plaintiff Foster Thomas
Intervenor Plaintiff Chareama Bolds
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(See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) LEAD ATTORNEY
Richard D. Emery (See above for address) LEAD ATTORNEY
Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
Mariann Meier Wang (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Richard D. Emery (See above for address) ATTORNEY TO BE NOTICED
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Intervenor Plaintiff Julio Phitts
Intervenor Plaintiff David Sanchez
Intervenor Plaintiff Intervenor-Plaintiff Arthur Wallace
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represented by Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
Mariann Meier Wang (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Richard D. Emery (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
Mariann Meier Wang (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Richard D. Emery (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Sykes Saylor (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address)
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Defendant New York City Health & Hosp's Corp. TERMINATED: 09/05/2007 Defendant The Wardens of Rikers Island Correctional Facility Defendant Warden Jacqueline Thomas-Andrews Warden of the Rose M. Singer Facility for Women at Rikers Island in 2001
Defendant Carolyn Thomas Warden of the Rose M. Singer Facility for Women
Defendant Prison Health Services, Inc.
Defendant America Services Group, Inc.

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?893757229255246-L_3...
ATTORNEY TO BE NOTICED
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY

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Defendant M.D. Trevor Parks Prison Health Service Medical Director
Defendant Dr. Brown Medical Director of Correctional Health Services
Consolidated Plaintiff Federico Tenorio
Consolidated Plaintiff Chanta Nixon
Consolidated Plaintiff Keysha Lee Morris
Consolidated Plaintiff Diedre Hendricks
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Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Brett Harris Klein (See above for address) TERMINATED: 01/06/2006 LEAD ATTORNEY
Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Richard Cardinale (See above for address)
Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address)
Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address)
Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address)
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Consolidated Plaintiff David Cence
V. Consolidated Defendant Doctor/Nurse 1-50
Consolidated Defendant Correction Officers
Consolidated Defendant Patrick Brown
Consolidated Defendant The Wardens of the New York City Department of Correction Consolidated Defendant Health and Hospitals Corporation
Consolidated Defendant Kim Wallace
Consolidated Defendant Chante Westhook
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Robert Nathan Isseks (See above for address)
represented by Richard Cardinale (See above for address) Robert Nathan Isseks (See above for address)

represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY

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Date Filed 07/15/2002 07/15/2002 07/15/2002 08/06/2002
08/06/2002
08/06/2002 08/06/2002 08/06/2002 08/19/2002 09/05/2002 10/17/2002 10/17/2002 10/17/2002

#

Docket Text

1 CLASS ACTION COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 444979. (rmo) (Entered: 07/22/2002)
CASE REFERRED TO Judge Naomi R. Buchwald as possibly related to 1:02cv465. (rmo) (Entered: 07/22/2002)
2 NOTICE of by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova requesting that this actin be filed as related to case 02cv465 (NRB). (rmo) (Entered: 07/22/2002)
3 Memo-Endorsement on letter addressed to Judge Buchwald from Deborah I. Meyer, dated 7/24/02: Granting defendants request for extension of time to answe or otherwise respond to the complaint until 8/23/02 . ( signed by Judge Barbara S. Jones ); Copies mailed. (tp) (Entered: 08/08/2002)
4 NOTICE OF INITIAL PRETRIAL CONFERENCE: That if such a consent order is not filed within the time provided, a pretrial conference will be held for 3:00 p.m. on 9/20/02, in Courtroom 1105, 40 Centre Street, New York, NY 10007. ( signed by Judge Barbara S. Jones ) (tp) (Entered: 08/09/2002)
Case referred as related to 1:02cv465 and declined by Judge Naomi R. Buchwald and returned to wheel for assignment. (jol) (Entered: 08/14/2002)
5 Notice of Case Assignment to Judge Gerard E. Lynch . Copy of notice and judge's rules mailed to Attorney(s) of record: Richard J. Cardinale . (jol) (Entered: 08/14/2002)
Magistrate Judge Theodore H. Katz is so designated. (jol) (Entered: 08/14/2002)
6 Memo-Endorsement on letter addressed to Judge Jones from Richard J. Cardinale, dated 8/16/02: The 9/20/02 conference is cancelled . ( signed by Judge Barbara S. Jones ); Copies mailed. (tp) (Entered: 08/21/2002)
7 ANSWER by The City of New York, William J. Fraser, Gary Lanigan, Robert N. Davoren, Bernard Kerik to Amended Complaint. (Attorney Deborah I. Meyer from the Firm: Corp Counsel City of NY). (cd) (Entered: 09/11/2002)
8 NOTICE OF MOTION by Kadian Mcbean, Cindia Cruz, Wanda Harvey, and Margarita Plyassounova, to certify class action ; for preliminary injunction . No Return Date. (kw) (Entered: 10/23/2002)
9 DECLARATION of Micheal Hueston by Kadian Mcbean, Cindia Cruz, Wanda Harvey, and Margarita Plyassounova in support Re: [8-1] motion to certify class action, [8-2] motion for preliminary injunction. (kw) (Entered: 10/23/2002)
10 DECLARATION of Robert N. Isseks by Kadian Mcbean, Cindia Cruz, Wanda Harvey, and Margarita Plyassounova in support Re: [8-1] motion to certify class action, [8-2] motion for preliminary injunction. (kw) (Entered: 10/23/2002)

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10/17/2002 10/17/2002 10/23/2002 11/04/2002 11/07/2002
11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/27/2002 11/27/2002

11 MEMORANDUM OF LAW by Kadian Mcbean, Cindia Cruz, Wanda Harvey, and Margarita Plyassounova in support of [8-1] motion to certify class action, [8-2] motion for preliminary injunction. (kw) (Entered: 10/23/2002)
12 DECLARATION of Richard J. Cardinale by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova in support Re: [8-1] motion to certify class action, [8-2] motion for preliminary injunction. (kw) (Entered: 10/23/2002)
13 SCHEDULING ORDER: Deft's Response to motion deadline set for 11/25/02; Pltff's Reply to response to motion deadline set for 12/9/02. ( signed Judge Gerard E. Lynch ); (kg) (Entered: 10/25/2002)
14 Memo-Endorsement on letter addressed to Judge Lynch from Richard J. Cardinale, dated 10/29/02; granting plaintiffs requests for leave to file a second amended complaint . ( signed by Judge Gerard E. Lynch ); (pl) (Entered: 11/06/2002)
15 SECOND AMENDED COMPLAINT by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova, Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Lisa Gregorio (Answer due 11/18/02 for John/Jane Does 1-50, for John/Jane Does 1-500, for Bernard Kerik, for Robert N. Davoren, for Gary Lanigan, for William J. Fraser, for The City of New York ) amending [1-1] complaint against New York City Health, Wardens of Rikers, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health, Inc., America Services, Trevor Parks, Brown. Summons issued. (yv) (Entered: 11/13/2002)
16 AFFIDAVIT OF SERVICE of 2nd Amended Complaint as to Prison Health, Inc. by Paula Kash, Ct. Corp on 11/12/02 . Answer due on 12/2/02 for Prison Health, Inc. . (cd) (Entered: 11/14/2002)
17 AFFIDAVIT OF SERVICE of 2nd Amended Complaint as to The City of New York by unknown white female on 11/7/02 . Answer due on 11/27/02 for The City of New York . (cd) (Entered: 11/14/2002)
18 AFFIDAVIT OF SERVICE of 2nd Amended Complaint as to New York City Health by unknown white female on 11/7/02 . Answer due on 11/27/02 for New York City Health . (cd) (Entered: 11/14/2002)
19 AFFIDAVIT OF SERVICE of S/C as to Brown by unknown white female on 11/7/02. Answer due on 11/27/02 for Brown . (cd) (Entered: 11/14/2002)
20 AFFIDAVIT OF SERVICE of 2nd Amended Complaint as to Carolyn Thomas by Officer Jenkins on 11/7/02 . Answer due on 11/27/02 for Carolyn Thomas . (cd) (Entered: 11/14/2002)
21 AFFIDAVIT OF SERVICE of 2nd Amended Complaint as to Jacqueline Thomas-Andrews by Officer Jenkins on 11/7/02 . Answer due on 11/27/02 for Jacqueline Thomas-Andrews . (cd) (Entered: 11/14/2002)
22 MEMORANDUM OF LAW by defendants in support of their motion to disqualify plaintiffs' counsel. (kw) (Entered: 12/03/2002)
23 NOTICE OF MOTION by The City of New York to disqualify plntf's counsel from further representation of plntfs ; Return Date not indicated; attached are

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12/03/2002
12/04/2002 12/10/2002
12/10/2002
12/11/2002 12/19/2002 01/16/2003 01/16/2003

papers in support (cd) (Entered: 12/04/2002)
24 Memo-Endorsement on letter addressed to Judge Gerard E. Lynch from Deborah I. Meyer, dated 11/21/02. Re:, counsel for dfts requests that discovery and the motion for class certification be stayed pending a decision by the U.S. Supreme Court until approximately between February and April 2003 , or in the alternative counsel for dfts requests a sixty day extension to respond to plaintiffs' class certification motion. The motions for a stay pending decision of the Certiorari petition in Shain and/or of the disqualification motion are denied. The motion for an extension of time to respond to the class certification motion is also denied since (1) it is untimely, defendants having submitted it so late that it only reached chambers on the date the response was due and (2) the motion is entirely unspecific about what addition at discovery is allegedly necessitated by the amendment of the complaint and this provides no rational basis for the Court to assess the need for an extension . ( signed by Judge Gerard E. Lynch ); (dle) (Entered: 12/06/2002)
25 AFFIDAVIT OF SERVICE of summons and complaint as to Trevor Parks by certified mail on 11/20/02. Answer due on 12/10/02 for Trevor Parks. (jco) (Entered: 12/10/2002)
26 MEMORANDUM OF LAW by The City of New York, William J. Fraser, Gary Lanigan, Robert N. Davoren, Bernard Kerik, Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Does 1-500, John/Jane Does 1-50, New York City Health, Wardens of Rikers, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health, Inc., America Services, Trevor Parks, Brown in opposition to [8-1] motion to certify class action, [8-2] motion for preliminary injunction . (db) (Entered: 12/13/2002)
27 DECLARATION of Brett H. Klein by The City of New York, William J. Fraser, Gary Lanigan, Robert N. Davoren, Bernard Kerik, Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Does 1-500, John/Jane Does 1-50, New York City Health, Wardens of Rikers, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health, Inc., America Services, Trevor Parks, Brown in support of dft's memorandum in opposition to pltff's motion for preliminary injunction. (db) (Entered: 12/13/2002)
28 REPLY MEMORANDUM by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova in support re: [8-1] motion to certify class action, [8-2] motion for preliminary injunction . (dle) (Entered: 12/23/2002)
29 ORDER, denying [8-1] motion to certify class action, denying [8-2] motion for preliminary injunction. ( signed by Judge Gerard E. Lynch ); (kw) (Entered: 12/23/2002)
30 RULE 1.9 CERTIFICATE filed by America Services, Prison Health, Inc. . (ae) (Entered: 01/21/2003)
31 ANSWER by The City of New York, William J. Fraser, Gary Lanigan, Robert N. Davoren, Bernard Kerik, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health, Inc., America Services, Trevor Parks, Brown to [15-1] second amended complaint . (Attorney Brett H. Klein from the Firm: Michael A. Cardozo); jury demand. (ae) (Entered: 01/21/2003)

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32 City Defendants' REPLY MEMORANDUM in Further support re: [23-1] motion to disqualify plntf's counsel from further representation of plntfs . (djc) (Entered: 01/24/2003)
33 DECLARATION of Brett H. Klein in support of [23-1] motion to disqualify plntf's counsel from further representation of plntfs; and to place relevant and documetns on the record; (djc) (Entered: 01/24/2003)
34 MEMORANDUM OF LAW by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova, Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Lisa Gregorio in opposition to [23-1] motion to disqualify plntf's counsel from further representation of plntfs. (sb) (Entered: 01/24/2003)
35 DECLARATION of Robert N. Isseks by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova, Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Lisa Gregorio in opposition to [23-1] motion to disqualify plntf's counsel from further representation of plntfs . (sb) (Entered: 01/24/2003)
36 DECLARATION of Michael Hueston by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova, Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Lisa Gregorio in opposition to [23-1] motion to disqualify plntf's counsel from further representation of plntfs. (sb) (Entered: 01/24/2003)
37 DECLARATION of Richard J. Cardinale by Kadian Mcbean, Cindia Cruz, Wanda Harvey, Margarita Plyassounova, Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Lisa Gregorio in opposition to [23-1] motion to disqualify plntf's counsel from further representation of plntfs . (sb) (Entered: 01/24/2003)
38 Transcript of record of proceedings before Judge Gerard E. Lynch for the date(s) of 12/18/02. (dt) (Entered: 02/03/2003)
39 Transcript of record of proceedings before Judge Gerard E. Lynch for the date(s) of 12/9/02. (dt) (Entered: 02/03/2003)
40 ORDER, Defendant's request for an order staying or limiting discovery is denied. ( signed by Judge Gerard E. Lynch ) (sb) (Entered: 05/23/2003)
41 OPINION AND ORDER #88589, denying [23-1] motion to disqualify plntf's counsel from further representation of plntfs. ( signed by Judge Gerard E. Lynch ); (kw) (Entered: 06/05/2003)
42 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for settlement. Referred to Magistrate Judge Theodore H. Katz. ( signed by Judge Gerard E. Lynch ) (kw) (Entered: 06/13/2003)
43 STIPULATION and ORDER, defendants will serve their papers in opposition to plaintiffs' motion for class certification by 8/29/03; plaintiffs will submit their reply by 9/12/03; the parties will conduct discovery in the interim . ( signed by Judge Gerard E. Lynch ) (yv) (Entered: 06/23/2003)
Deadline(s) updated: scheduling order deadlines: Reply to response to motion deadline 9/12/03 ; . (yv) (Entered: 06/23/2003)
44 Memo-Endorsement on letter addressed to Mag. Judge Katz from Brett H. Klein, dated 7/16/03. Counsel for defendants request a one week adjournment of the

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7/18/03 status conference. The parties shall call chambers on 7/29/03 at 4:30 p.m. ( signed by Magistrate Judge Theodore H. Katz ); Copies mailed by Chambers. (sb) (Entered: 07/22/2003)
45 STIPULATION and ORDER, The actions, 02cv5426 and 03cv4114, are consolidated for all purposes . ( signed by Judge Gerard E. Lynch ) (sb) (Entered: 07/29/2003)
Consolidated Lead Case. (sb) (Entered: 07/29/2003)
Settlement Conference held before Magistrate Judge Theodore H. Katz . (ja) (Entered: 08/12/2003)
46 RULE 1.9 CERTIFICATE filed by The City of New York . (db) (Entered: 08/27/2003)
47 Memo-Endorsement on letter addressed to Hon. Gerard E. Lynch from Brett H. Klein, dated 8/22/03. counsel for defendants request a stay of discovery and the briefing of plaintiffs' motion for class certification pending the outcome of settlement negotiations. So Ordered . ( signed by Judge Gerard E. Lynch ); (yv) (Entered: 08/28/2003)
Settlement Conference held before Magistrate Judge Theodore H. Katz. (ja) (Entered: 09/19/2003)
Telephone settlement Conference held before Magistrate Judge Theodore H. Katz . (cd) (Entered: 10/07/2003)
Telephone Conference held on 10/9/03 before Magistrate Judge Theodore H. Katz . (dle) (Entered: 10/14/2003)
Telephone Settlement Conference held on 10/9/03 before Magistrate Judge Theodore H. Katz. (sb) Modified on 10/17/2003 (Entered: 10/17/2003)
Telephone Settlement Conference held on 10/9/03 before Magistrate Judge Theodore H. Katz. (sb) (Entered: 10/17/2003)
48 Minute Entry for proceedings held before Judge Theodore H. Katz : Settlement Conference (telephonic) held on 12/1/2003. (dle, ) (Entered: 12/11/2003)
Minute Entry for proceedings held before Judge Theodore H. Katz : Settlement Conference held on 1/21/2004. (jco, ) (Entered: 02/09/2004)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz : Settlement Conference held on 2/17/2004. (sb, ) (Entered: 02/23/2004)
49 MOTION for an order, granting Joel Ramos, Foster Thomas, Daniel Velazquez and Kenneth Williams, pursuant to Fed. R. Civ. P. 24(a)(2), to intervene-plaintiffs. Return Date set for 3/18/2004 12:00 PM before Judge Gerard E. Lynch. (sac, ) (Entered: 02/23/2004)
50 MEMORANDUM OF LAW in Support re: [49] MOTION to Intervene. (sac, ) (Entered: 02/23/2004)
Minute Entry for proceedings held before Judge Theodore H. Katz : Telephone Conference (Settlement) held on 3/8/2004. 5:20-5:45 PM. (jeh, ) (Entered:

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03/11/2004)
51 MEMORANDUM OF LAW in Opposition re: [49] MOTION to Intervene. Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Marcel Sarfati. (jco, ) (Entered: 03/12/2004)
52 MEMORANDUM OF LAW Of Plaintiffs in Support Of Approval Of Class Action Settlement. Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Keysha Lee Morris, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati, Federico Tenorio. (jmi, ) (Entered: 03/19/2004)
53 DECLARATION of Richard J. Cardinale in Support Of Approval Of Class Action Settlement. Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Keysha Lee Morris, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati, Federico Tenorio. (jmi, ) (Entered: 03/19/2004)
54 ENDORSED LETTER addressed to Judge Lynch from Richard D. Emery dated 03/24/04 re: Parties are directed to provide counsel with copies of the court filing regarding the final Settlement no later than Wednesday, March 24, 2004, and allow them to serve reply memorandum of law within five business days after those documents are provided to them, by March 31 2004; (Signed by Judge Gerard E. Lynch on 03/24/04) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 04/01/2004)
55 Intervenor-Plaintiffs' MEMORANDUM OF LAW in Opposition to Plaintiffs' Request for Approval of Class Action Settlement; (djc, ) (Entered: 04/20/2004)
56 REPLY MEMORANDUM OF LAW in Support of Approval of Class Action Settlement. Document filed by Patrick Brown, David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Keysha Lee Morris, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati, Federico Tenorio. (pl, ) (Entered: 04/30/2004)
57 MEMORANDUM OF LAW in Support of approval of class action settlement. Document filed by The City of New York. (kw, ) (Entered: 05/18/2004)
58 SCHEDULING ORDER: The parties having appeared for a pretrial conference on 5/20/2004: The motion for class certification filed on 10/17/2004 is withdrawn. Motions due by 6/4/2004. Cross Motions due by 6/25/2004. Responses due by 7/16/2004 Replies due 7/30/2004. (Signed by Judge Gerard E. Lynch on 5/20/2004) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(jsa, ) (Entered: 05/25/2004) Presiding Judge: Lynch, Gerard E. Referral Judge : Katz, Theodore H. (Entered: 05/25/2004)
59 [49] Motion to Intervene pursuant to the conference held with the parties and the Court on 5/20/2004. It is ordered that the motion to intervene by plaintiffs Joel Ramos,Foster Thomas, Daniel Valequez and Kenneth Williams is granted.. (Signed by Judge Gerard E. Lynch on 5/20/2004) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(jsa, ) (Entered: 05/25/2004)

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60 AMENDED MOTION for an Order Certifying this Class Action pursuant to FRCP 23(b)(2) and (3). Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Keysha Lee Morris, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati, Federico Tenorio. (tp, ) (Entered: 06/07/2004)
61 MEMORANDUM OF LAW in Support re: [60] MOTION to Certify Class. Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Keysha Lee Morris, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati, Federico Tenorio. (tp, ) (Entered: 06/07/2004)
62 MOTION to Appointing Emery Cell Brinckerhoff & Abady LLP as class counsel, purs to FRCP 23(g)., MOTION to Certify Class., MOTION designating Intervenor Plainitffs as represenatives of the class. Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Joel Ramos. Return Date set for 8/6/2004 12:00 PM. Attached are declarations in support(djc, ) (Entered: 07/09/2004)
63 MEMORANDUM OF LAW in Opposition re: [60] MOTION to Certify Class.. Document filed by Joel Ramos, Foster Thomas, Daniel Velazquez, Kenneth Williams; and in support of Intervenor-Plaintiffs' Motion for Class Certification; (djc, ) (Entered: 07/09/2004)
64 MEMORANDUM OF LAW in Opposition to: [62] MOTION to Appoint Counsel. MOTION to Certify Class. MOTION designating Intervenor Plainitffs as represenatives of the class. Document filed by America Services Group, Inc., Brown, Patrick Brown, Correction Officers, Robert N. Davoren, William J. Fraser, Health and Hospitals Corporation, Bernard Kerik, Gary Lanigan, New York City Health & Hosp's Corp., Trevor Parks, Prison Health Services, Inc., The City of New York, The Wardens of Rikers Island Correctional Facility, The Wardens of the New York City Department of Correction, Carolyn Thomas, Jacqueline Thomas-Andrews, Kim Wallace, Chante Westhook. (db, ) (Entered: 07/29/2004)
65 Reply Memorandum of Law in support of plaitniffs' amended motion for class certification. Document filed by David Cence, Toby Cohen, Cindia Cruz, Lisa Gregorio, Wanda Harvey, Diedre Hendricks, Brenda Hopkins, Rhonda Jones, Kadian Mcbean, Chanta Nixon, Margarita Plyassounova, Marcel Sarfati. (dle, ) (Entered: 08/02/2004)
66 Intervenor plaintiffs' reply memorandum in furhter support of intervenors' motion for class certification. Document filed by Joel Ramos, Foster Thomas, Daniel Velazquez, Kenneth Williams. (dle, ) (Entered: 08/04/2004)
67 FIRST AMENDED INTERVENOR COMPLAINT amending [1] Complaint against Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor Parks, Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, New York City Health & Hosp's Corp., Prison Health Services, Inc., William J. Fraser, Gary Lanigan, Bernard Kerik.Document filed by Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa

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Hudspeth, Alan S. Olson, Foster Thomas, Kenneth Williams, Daniel Velazquez, Joel Ramos. Related document: [1] Complaint.(cd, ) (Entered: 04/15/2005)
68 OPINION and ORDER # 91541 re: granting [60] MOTION to Certify Class. filed by Toby Cohen,, Kadian Mcbean,, Cindia Cruz,, Wanda Harvey,, Margarita Plyassounova,, Brenda Hopkins,, Rhonda Jones,, Marcel Sarfati,, Lisa Gregorio,, David Cence,, Diedre Hendricks,, Chanta Nixon,, Federico Tenorio,, Keysha Lee Morris; denying [62] MOTION to Appoint Counsel. MOTION to Certify Class. MOTION designating Intervenor Plainitffs as represenatives of teh class. MOTION to Appoint Counsel. MOTION to Certify Class. MOTION designating Intervenor Plainitffs as represenatives of teh class. filed by Joel Ramos,, Kenneth Williams,, Foster Thomas,, Daniel Velazquez;.. in the event no applciatonf or preliminary approval is made by that date, thr Court will direct immediate notice in accordance with RUle 2 3(c)(2). (Signed by Judge Gerard E. Lynch on 4/26/05) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 04/29/2005)
69 ORDER that the Clerk of Court is respectfully requested to close out docket #60 and 62 on all internal reports. (Signed by Judge Gerard E. Lynch on 4/26/05) (cd, ) (Entered: 05/02/2005)
70 PLAINTIFFS' MEMORANDUM OF LAW in Support of Approval of Class Action Settlement. (djc, ) (Entered: 05/17/2005)
71 MOTION to Approve approval of proposed settlement set forth in the stip and order of Class Actioin Settlement., MOTION for Attorney Fees.. (djc, ) (Entered: 05/17/2005)
72 AFFIDAVIT OF SERVICE of Summons and Amended Complaint upon Department of Health and Mental Hygiene. Service was accepted by Edna Gonzalez. Document filed by Kadian Mcbean. (kw, ) (Entered: 06/07/2005)
73 AFFIDAVIT OF SERVICE of Summons and Amended Complaint. James Capoziello served on 5/27/2005, answer due 6/16/2005. Service was accepted by Edna Gonzalez. Document filed by Kadian Mcbean. (kw, ) (Entered: 06/07/2005)
74 AFFIDAVIT OF SERVICE of Summons and Amended Complaint. Thomas R. Frieden served on 5/27/2005, answer due 6/16/2005. Service was accepted by Edna Gonzalez. Document filed by Kadian Mcbean. (kw, ) (Entered: 06/07/2005)
75 STIPULATION AND ORDER of Class Action Settlement, as further set forth in this document. (Signed by Judge Gerard E. Lynch on 6/21/05) (cd, ) (Entered: 07/13/2005)
Transmission to Judgments and Orders Clerk. Transmitted re: [75] Stipulation and Order, to the Judgments and Orders Clerk for preparation of Judgment. (cd, ) (Entered: 07/13/2005)
76 REQUEST FOR EXCLUSION FROM CLASS. Filed by Keith Jones.(ae, ) (Entered: 07/29/2005)
77 NOTICE of Class Action and Proposed Class Settlement. (tb, ) (Entered: 08/01/2005)

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Request by Ismael Jacques to be excluded from Class Action. (tb, ) (Entered: 08/01/2005)
78 Request by Rafael R. Nunez to be excluded from Class Action. (tb, ) (Entered: 08/01/2005)
Minute Entry for proceedings held before Judge Theodore H. Katz : Discovery Hearing held on 7/19/2005. (pl, ) (Entered: 08/05/2005)
80 REQUEST TO BE EXCLUDED FROM CLASS ACTION. Filed by Derek C. Slates. (db, ) (Entered: 08/02/2005)
79 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute. Referred to Magistrate Judge Theodore H. Katz. (Signed by Judge Gerard E. Lynch on 7/25/05) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(yv, ) (Entered: 08/01/2005)
81 ORDER: It is hereby ordered that Tobey Cohen is withdrawn as class representative in this matter. (Signed by Judge Gerard E. Lynch on 8/10/2005) (lb, ) (Entered: 08/25/2005)
82 TRANSCRIPT of proceedings held on May 31, 2005, 2:23 p.m. before Judge Gerard E. Lynch. (dt, ) (Entered: 09/08/2005)
83 TRANSCRIPT of proceedings held on 5/31/2005 before Judge Gerard E. Lynch. (jar, ) (Entered: 09/26/2005)
84 MEMORANDUM OF LAW in Support of Objections to the Settlement. Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Joel Ramos, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson. Received in the night deposit box on 10/5/05 at 8:02 p.m.. (sac, ) (Entered: 10/06/2005)
85 DECLARATION of R. Emery and M. Wang and EXHIBITS in Support of Objections to the Settlement. Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Joel Ramos, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson. Received in the night deposit box on 10/5/05 at 8:02 p.m... (sac, ) (Entered: 10/06/2005)
86 ORDER: The fairness hearing is not a forum for members of the plaintiff class to provide details regarding their individual claims. Rather, its purpose is to hear arguments regarding the fairness of the proposed settlement. Since Marin has stated no objection to the proposed settlement, there is no reason for this Court to direct that he be produced, and his request is DENIED. (Signed by Judge Gerard E. Lynch on 10/3/05) (js, ) (Entered: 10/11/2005)
92 REQUEST TO BE EXCLUDED FROM CLASS ACTION. Filed by Anthony Pratt. (jco, ) (Entered: 11/09/2005)
87 ORDER that intervenor-plntfs' request for an extension of the 10/5, deadline for objections is denied and intervenor-plntfs' reqest for leave to file a supplemental brief concerning objections relating to the application for attys fees is granted, as further set forth in this document. (Signed by Judge Gerard E. Lynch on 9/30/05)

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(cd, ) (Entered: 10/20/2005)
88 MEMORANDUM OF LAW in Opposition re: Intervenor-Plaintiffs' Objections to the Settlement. Document filed by Kadian Mcbean. (cd, ) (Entered: 10/26/2005)
89 MEMORANDUM OF LAW in Support re: [71] MOTION to Approve approval of proposed settlement set for the stip and order of Class Actioin Settlement. MOTION for Attorney Fees. Document filed by Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Kadian Mcbean, Lisa Gregorio, Cindia Cruz, Wanda Harvey, Margarita Plyassounova. (jco, ) (Entered: 11/02/2005)
90 DECLARATION of Richard J. Cardinale in Support re: [71] MOTION to Approve approval of proposed settlement set forth in the stip and order of Class Actioin Settlement. MOTION for Attorney Fees. (jco, ) (Entered: 11/02/2005)
91 DECLARATION of Robert N. Isseks in Support re: [71] MOTION to Approve approval of proposed settlelment set for th in teh stip and order of Class Actioin Settlement. MOTION for Attorney Fees.. Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(dle, ) (Entered: 11/04/2005)
95 MEMORANDUM OF LAW in partial Opposition re: [71] MOTION to Approve approval of proposed settlelment set for th in the stip and order of Class Actioin Settlement. MOTION for Attorney Fees. Document filed by Daniel Velazquez, Foster Thomas, Joel Ramos. (cd, ) (Entered: 11/18/2005)
93 ORDER; plaintiff's request that the Court reject intervenor-plaintiffs' memo of law is DENIED. Pltf and deft's request that Dr. Stuart Grassian be precluded from testifying at the fairness hearing are GRANTED. Intervenor-plaintiff's request for the Court to order disclosure of certain information before the fairness hearing is DENIED. Intervenor-plaintiffs have until 11/18/05 to submit a written declaration by Dr. Grassian in connection with their objections to the proposed settlement. (Signed by Judge Gerard E. Lynch on 10/26/05) (kco, ) (Entered: 11/18/2005)
94 ORDER; Defendant's request for a stay of discovery is denied. The parties shall meet and confer regarding their outstanding discovery disagreements no later than November 15, 2005. Any disputes that cannot be resolved shall be submitted to the Court by a joint letter on or before December 1, 2005, in accordance with the Court's Individual Rule 2.F. Any such submission shall identify with precision the relief requested with respect to each issue and the parties' positions with respect to each request. (Signed by Judge Gerard E. Lynch on 11/2/05) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 11/18/2005)
96 ORDER; Best's objection to the proposed settlement contains two additional requests to the Court, both of which are denied. The class action being certified on 4/26/05 and the proposed settlement entered on 6/21/05, the time to join additional defendants is long passed, therefore Best's first request must be denied. Best requests that the Court consider approving a settlement on his behalf in the amount of $100,000, this request is denied. (Signed by Judge Gerard E. Lynch on 11/21/05) (kco, ) (Entered: 11/23/2005)
97 DECLARATION of Dr. Stuart Grassian in Support re: [95] Memorandum of Law in Oppisition to Motion,. (cd, ) (Entered: 12/07/2005)

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98 MEMORANDUM OF LAW in Support of objections to the settlement. Document filed by Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Foster Thomas. (jco, ) (Entered: 12/19/2005)
99 TRANSCRIPT of proceedings held on 12/2/2005 before Judge Gerard E. Lynch. (tve, ) (Entered: 12/21/2005)
100 MEMORANDUM OF LAW in Support of Objection re: [71] MOTION to Approve approval of proposed settlelment set for th in teh stip and order of Class Actioin Settlement. MOTION for Attorney Fees.. Document filed by Toby Cohen, Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Cindia Cruz, Federico Tenorio, Chanta Nixon, Keysha Lee Morris, Diedre Hendricks, David Cence, Margarita Plyassounova. (jmi, ) (Entered: 12/27/2005)
101 MEMORANDUM OF LAW in Opposition to Intervenor-Plaintiffs' Objectio nto the Class Settlement and in Opposition to the Declaration of Stuart Grassian. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 12/30/2005)
102 MEMORANDUM OF LAW in Support re: [71] MOTION to Approve approval of proposed settlelment set for th in teh stip and order of Class Actioin Settlement. MOTION for Attorney Fees. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (jco, ) (Entered: 01/03/2006)
103 ENDORSED LETTER addressed to Judge Gerard E. Lynch from Mariann Meier Wang dated 12/1/05 re: a request for permission to submit a letter regarding outstanding disputes on 12/19/2005. ENDORSEMENT: SO ORDERED. (Signed

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by Judge Gerard E. Lynch on 12/12/05) (kco, ) (Entered: 01/05/2006)
104 ENDORSED LETTER addressed to Judge Gerard E. Lynch from Genevieve Nelson dated 12/7/2005 re: to request that Brett Klein and Deborah Meyer be removed from the docket sheet as counsel in the above referenced matters.., Attorney Brett Harris Klein and Deborah I. Meyer terminated. (Signed by Judge Gerard E. Lynch on 12/12/2005) (jmi, ) (Entered: 01/09/2006)
105 MEMORANDUM AND OPINION 92710 re: [71] MOTION to Approve approval of proposed settlement set forth in the stip and order of Class Action Settlement. MOTION for Attorney Fees. The settlement negotiated between the parties is fair, reasonable, and adequate. Therefore, plaintiffs' motion to approve the settlement and award attorneys' fees (Doc. #71) is granted. The Court approves the settlement, the payments to class representatives, and the attorneys' fees. So Ordered. (Signed by Judge Gerard E. Lynch on 2/7/06) (jco, ) Modified on 2/9/2006 (ew, ). (Entered: 02/08/2006)
106 ORDER that discovery regarding dfts' policies and practices with respect to strip searches shall be completed by 9/29/06; the parties shall appear for a conference on 10/6/06 at 12:00 p.m.; the case will be referred by separate order to Magistrate Judge Katz for discovery supervision; dfts' motion to dismiss shall be filed by 8/11/06; plaintiffs' response shall be filed by 9/15/06; dfts' reply shall be filed by 9/29/06. (Signed by Judge Gerard E. Lynch on 7/7/06) (dle, ) (Entered: 07/13/2006)
Set/Reset Deadlines: Motions due by 8/11/2006. Replies due by 9/29/2006. Responses due by 9/15/2006 (dle, ) (Entered: 07/13/2006)
107 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes initial conference, scheduling, discovery, non-dispositive pretrial motions, and settlement). Referred to Magistrate Judge Theodore H. Katz. (Signed by Judge Gerard E. Lynch on 7/7/2006) (lb, ) (Entered: 07/13/2006)
108 ENDORSED LETTER addressed to JUdge Gerard E. Lynch from Genevieve Nelson dated 7/10/06. ENDORSEMENT: DENIED. This schedule was fully discussed and agreed to by defendant at a conference one business day before this request was filed, and these competing obligations were not mentioned. In any event, discovery has been long delayed in this matter, the pending requests themselves have been long pending, and there is no reason why Corporation Counsel cannot assign additional staff if the assistants in charge of this case are overburdened. (Signed by Judge Gerard E. Lynch on 7/24/06) (js, ) (Entered: 07/27/2006)
109 ANSWER to Amended Complaint. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace,

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Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. Related document: [67] Amended Complaint,, filed by Joel Ramos,, David Gonzalez,, Samuel Figueroa,, Kenneth Williams,, Foster Thomas,, Daniel Velazquez,, Doris Edwards,, Afifa Hudspeth,, Alan S. Olson,.(dle, ) (Entered: 08/04/2006)
110 STIPULATION AND ORDER the City and Cardinale, Hueston & Marinelli and Robert Isseks that the Invoice dated 4/7/06 to the City for administration fees and expenses in these class actions to be settled as specified in paragraphs "2", below. The City of New York hereby agrees to pay plaintiffs' class counsel, the sum of $264,950.00 in full satisfaction of cost and expenses of the administration of the settlement in these class actions up to 7/4/06. So Ordered. (Signed by Judge Gerard E. Lynch on 7/27/06) (jco, ) (Entered: 08/09/2006)
111 ENDORSED LETTER addressed to Judge Gerard E. Lynch from Genevieve Nelson dated 8/9/2006 re: defendants motion will be due on 8/17/2006; Intervenors' opposition will be due by 9/21/2006; and defendants' reply will be due by 10/5/2006. ENDORSEMENT: So Ordered. (Signed by Judge Gerard E. Lynch on 8/10/2006) (lb, ) (Entered: 08/17/2006)
112 TRANSCRIPT of proceedings held on 8/9/06 before Judge Theodore H. Katz. (cd, ) (Entered: 08/25/2006)
113 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Gerard E. Lynch on 8/30/06) (kco, ) (Entered: 08/31/2006)
114 TRANSCRIPT of proceedings held on 08/09/06 before Judge Theodore H. Katz. (es, ) (Entered: 09/11/2006)
115 AMENDED SCHEDULING ORDER:pre trial Discovery due by 10/31/2006. (Signed by Judge Theodore H. Katz on 9/6/06) copies sent by chambers.(cd, ) (Entered: 09/12/2006)
116 ENDORSED LETTER addressed to Judge Theodore H. Katz from Genevieve Nelson dated 9/8/06 re: a request for the attached deposition schedule. ENDORSEMENT: The attached deposition schedule is hereby approved and ordered. (Signed by Judge Theodore H. Katz on 9/11/06) Copies Mailed By Chambers on 9/11/06.(kco, ) (Entered: 09/13/2006)
117 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. Martin F. Horn served on 9/8/2006, answer due 9/28/2006. Service was accepted by Ralph Pascale, co-worker. Document filed by Toby Cohen; Brenda Hopkins; Rhonda Jones; Marcel Sarfati; Kadian Mcbean; Lisa Gregorio; Cindia Cruz; Wanda Harvey; Margarita Plyassounova. (djc, ) (Entered: 09/20/2006)
118 ORDER; the warden or other official in chanrge of the Rose M. Singer Center shall produce and make available inmate Doris Edwards, Book & Case No. 241-66-06741, for taking of her deposition, on 09/22/06 commencing at

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10:00a.m. and for so long thereafter, from day to day, as the deposition continues; and that inmate Doris Edwards appear in such place as designated by the warden or other official in charge of Rose M. Singer Center so her deposition may be taken. (Signed by Judge Theodore H. Katz on 9/20/06) (djc, ) (Entered: 09/21/2006)
122 DECLARATION of Genevieve Nelson to place relevant documents on the record in support of defendants' motion for judgment on the pleadings under Rule 12(c) of the FRCP. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 09/27/2006)
123 MOTION for Judgment on the Pleadings in favor of defendants Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(djc, ) (Entered: 09/27/2006)
124 MEMORANDUM OF LAW in Support re: [123] MOTION for Judgment on the Pleadings. (Document filed by Defendants....) (djc, ) (Entered: 09/27/2006)
120 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Genevieve Nelson dated 9/15/2006 re: to defendants respectfully request that their deadline to submit their letter application be extended to September 21, 2005 and for Intervenor's time reason to such an application to be extended to September 28,2006. ENDORSEMENT: Intervenors' time to respond to defendants' September 12th application is extended to Tuesday, September 19, 2006; Defenandts' time to submit their letter application regarding Deliberative Process privilege is extended to September 21,2006;and Intervenors time to respond to defendants' Deliberative Process application is extended to September 28, 2006.

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(Signed by Judge Theodore H. Katz on 9/18/2006) (jmi, ) (Entered: 09/27/2006)
Set/Reset Deadlines: Responses due by 9/28/2006 (jmi, ) (Entered: 09/27/2006)
121 ANSWER to Amended Complaint. Document filed by James Capoziello, Martin F. Horn. Related document: [67] Amended Complaint,, filed by Joel Ramos,, David Gonzalez,, Samuel Figueroa,, Kenneth Williams,, Foster Thomas,, Daniel Velazquez,, Doris Edwards,, Afifa Hudspeth,, Alan S. Olson,.(djc, ) (Entered: 09/27/2006)
Minute Entry for proceedings held before Judge Theodore H. Katz : Telephone Conference held on 9/26/06. (kco, ) (Entered: 10/02/2006)
126 ORDER denying [123] Motion for Judgment on the Pleadings withiout prejudice to renewal in the From of an expanded motion for summary judgment at the conclusion of discovery with respect to any issues that remain outstanding. The parties are encoiraged to reach agreement, in advance of any such motion practice, on any issues regarding the proper parties to the case. The parties are also encouraged to cooperate, in the final stages of discovery, with respect to the scheduling of depositions, and to arrive at a mutually satisfactory schedule, including any modest discovery extension that may be entailed, for the conclusion of discovery and the making and briefing of motions for summary judgment and class certification. So Ordered. (Signed by Judge Gerard E. Lynch on 10/2/2006) (jmi, ) (Entered: 10/11/2006)
125 FILING ERROR - ELECTRONIC FILING FOR NON-ECF CASE - NOTICE OF CHANGE OF ADDRESS by Richard D. Emery on behalf of Kenneth Williams, Daniel Velazquez, Foster Thomas, Joel Ramos, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Foster Thomas. New Address: Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, New York, United States 10019, 212-763-5000. (Emery, Richard) Modified on 10/10/2006 (gf, ). (Entered: 10/06/2006)
127 ENDORSED LETTER addressed to Judge Theodore H. Katz from Elizabeth Saylor dated 10/6/06 re: a request for an extension until 10/18/2006 to respond to the letter. ENDORSEMENT: SO ORDERED (Signed by Judge Theodore H. Katz on 10/6/06) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(kco, ) (Entered: 10/11/2006)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF CASE ERROR. Note to Attorney Richard Emery to MANUALLY RE-FILE Document Notice of Change of Address, Document No. 125. This case is not ECF. (gf, ) (Entered: 10/10/2006)
128 ORDER upon the consent of the State Department of Corrections: (1) that the Superintendent or order official in charge of the Hudson Correctional Facility transport and produce inmate Samuel Figueroa, No. 06-R-2885, from the hudson Correctional Facility, located in Hudson, New York, to the Sing Sing Correctional Facility, located in Ossining, New York, for the taking of his deposition, on October 18, 2006, commencing at 10:00 A.M., and for so long therafter, from day to day, as the deposition continues; and (2) that inmate Samuel Figueroa appear in such place as designated by the Superinterdent or other offical is charge of Sing Sing Correctional Facility so his deposition may be taken. (Signed by Judge

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Theodore H. Katz on 10/11/2006) (jmi, ) (Entered: 10/13/2006)
Minute Entry for proceedings held before Judge Theodore H. Katz : Discovery Hearing held on 10/11/2006. (ae, ) (Entered: 10/17/2006)
129 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Elizabeth Saylor dated 10/18/2006 re: writing to request another extension until 10/23/2006 to respond to the letter. ENDORSEMENT: Granted. So Ordered. (Signed by Magistrate Judge Theodore H. Katz on 10/19/2006) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(lb, ) (Entered: 10/23/2006)
130 ORDER: The Warden or other official in charge of the Rose M. Singer Center produce and make available inmate Doris Edwards, NYSID No. 6964885R, for the taking of her deposition, on 10/25/2006, commencing at 10:00 a.m., and for so long thereafter, from day to day, as the deposition continues; and that inmate Doris Edwards appear in such place as designated by the Warden or other official in charge of Rose M. Singer Center so her deposition may be taken. (Signed by Magistrate Judge Theodore H. Katz on 10/19/2006) (lb, ) (Entered: 10/23/2006)
131 TRANSCRIPT of proceedings held on 9/6/06 before Judge Theodore H. Katz. (tro, ) (Entered: 11/03/2006)
Minute Entry for proceedings held before Judge Theodore H. Katz : Discovery Conference held on 11/9/2006. Rulings issued on the record. (ae, ) (Entered: 11/15/2006)
132 NOTICE OF APPEARANCE by Elizabeth Sykes Saylor on behalf of Kenneth Williams, Daniel Velazquez, Joel Ramos, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Foster Thomas (ae, ) (Entered: 11/16/2006)
133 STIPULATION AND PROTECTIVE ORDER, regarding procedures to be followed that shall govern the handling of "Confidential Materials". (Signed by Judge Theodore H. Katz on 11/13/06) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(ae, ) (Entered: 11/17/2006)
Minute Entry for proceedings held before Judge Theodore H. Katz : Interim Pretrial Conference held on 11/16/2006. (ae, ) (Entered: 11/21/2006)
134 ENDORSED LETTER addressed to Mag. Judge Theodore H. Katz from Mariann Meier Wang dated 11/15/06 re: granting the parties request that the proposed discovery plans be submitted to Your Honor on 12/8/08, a week after the documents are produced. (Signed by Judge Theodore H. Katz on 11/16/06) (pl, ) (Entered: 11/20/2006)
135 MOTION; for an order pursuant to Rule 24(b) of the F.R.C.P. granting proposed plaintiff-intervenor Arthur Wallace permission to Intervene. Document filed by Brenda Hopkins, Rhonda Jones, Marcel Sarfati, Kadian Mcbean, Lisa Gregorio, Federico Tenorio, Chanta Nixon, Keysha Lee Morris, Diedre Hendricks, Wanda Harvey, Margarita Plyassounova, Foster Thomas. Return Date set for 12/21/2006 10:00 AM. (pl, ) (Entered: 11/22/2006)

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136 MOTION Granting poposed intervenor-plaintiffs David Sanchez, Julio Phitts, and Chareama Bolds permission to intervene as plaintiffs in this action....; Document filed by Chareama Bolds, Julio Phitts, David Sanchez. Attached is Addendum #2 to 1st Amended Intervenor Class Action; Return Date set for 12/21/2006 10:00 AM. (djc, ) (Entered: 11/27/2006)
137 TRANSCRIPT of proceedings held on 10/11/06 before Judge Theodore H. Katz. (es, ) (Entered: 12/14/2006)
138 ENDORSED LETTER addressed to Judge Theodore H. Katz from Joseph M. Hiraoka dated 12/11/06 re: a request for guidance regarding intervenors' proposed amendment to the complaint. ENDORSEMENT: Plaintiff's counsel should submit a brief affirmation setting forth the reasons for the proposed intervention, by 12/20/2006. The response to the motion shall be filed by 1/4/2007, assuming there is an objection to the intervention. (Signed by Judge Theodore H. Katz on 12/14/06) (kco, ) (Entered: 12/18/2006)
Set Deadlines: Motions due by 12/20/2006. Responses due by 1/4/2007. (kco, ) (Entered: 12/18/2006)
140 AFFIRMATION of Elizbeth S. Saylor in Support of Motions to Intervene Arthur Wallace, David Sanchez, Julio Phitts & Chareama Bolds. Document filed by Foster Thomas. (djc, ) (Entered: 12/22/2006)
139 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Genevreve Nelson dated 12/8/2007 re: to defednants write in accordance with the Court's instructions to provide a)a status report on outstanding discovery; and b) to submit a proposed discovery plan. Discovery due by 1/31/2007. ENDORSEMENT: All documentary discovery shall be completed by January 31,2007. All fact discovery shall be completed by February 28, 2007. Inerverors shall provide the requested please by January 8,2007. The shall be no further document requests unless the parties agree or good cause is shown to the Court. The parties should continue to confer on the need for additonal depositions. The court will not limit plaintiffs to ten depositions. SO OREDERED. (Signed by Judge Theodore H. Katz on 12/19/2006) (jmi, ) (Entered: 12/21/2006)
141 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Magistrate Judge Theodore H. Katz on 12/19/2006) Copies Mailed By Chambers(lb, ) (Entered: 12/22/2006)
142 MEMORANDUM OF LAW in Opposition re: [136] MOTION to Intervene, [135] MOTION to Intervene. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, New York City Health & Hosp's Corp., The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Michael Bloomberg, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, New York City Department of Correction (DOC), P.H.S. Medical Services, P.C., Trevor

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Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (jco, ) (Entered: 01/05/2007)
143 REPLY MEMORANDUM OF LAW in Support re: [136] MOTION to Intervene.. (cd) (Entered: 01/17/2007)
144 STIPULATION AND ORDER OF SETTLEMENT OF CLASS ACTION ADMINISTRATION FEES: The City of New York hereby agrees to pay plaintiffs' class counsel, the sum of $128,319.00 n full staisfaction of costs and expenses of the administration of the settlement in these actions between 4/8/2006 and 11/28/2006. In consideration for the payment of this sum, plaintiffs' class counsel agrees to dismissal of all claims it has or may have against defendants for the cost and expenses of the administration of the class actions, including attorneys fees and paralegal fees, costs and expenses... (Signed by Judge Gerard E. Lynch on 1/25/2007) (lb) (Entered: 01/31/2007)
145 MEMORANDUM OPINION AND ORDER # 94257: for r4easons further set forth in said Order, Arthur Wallace, David Sanchez, Julio Phitts and Chareama Bold's motion to intervene as plaintiffs in this action is GRANTED. (Signed by Judge Theodore H. Katz on 1/29/07) Copies Mailed by Chambers.(db) (Entered: 02/15/2007)
146 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Genevieve Nelson dated 2/15/2007 re: to defendants respectfully request that the Court extend fact discovery for two weeks from February 28,2007 to March 15, 2007. ENDORSEMENT: The request is granted. SO ORDERED. (Signed by Judge Theodore H. Katz on 2/20/2007) (jmi) (Entered: 02/26/2007)
Set/Reset Deadlines: Discovery due by 3/15/2007. (jmi) (Entered: 02/26/2007)
147 ENDORSED LETTER addressed to Judge Theodore H. Katz from Elizabeth S. Saylor dated 2/23/07 re: Counsel writes in response to the defendants' 2/22/07 letter. The claims of plaintiff-Intervener David Gonzalez are hereby dismissed. So Ordered. (Signed by Judge Theodore H. Katz on 2/27/07) (jco) (Entered: 03/06/2007)
148 ORDER; (1) that the warden or other official in charge of the Rose M. Singer Center shall produce and make available inmate Chameama Bolds, NYSID No. 9770865K, for the taking of her deposition, on 3/8/07, commencing at 10:00 a.m., and for so long thereafter, from day to day, as the deposition continues; and (2) that inmate Chameama Bolds shall appear in such place as designated by the warden or other official in charge of Rose M. Singer Center so her deposition may be taken. (Signed by Judge Theodore H. Katz on 3/2/07) (ae) (Entered: 03/07/2007)
149 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Elizabeth S. Saylor dated 3/12/2007 re: to request a one-day extenstion of discovery. ENDORSEMENT: The request is granted. SO ORDERED. (Signed by Judge Theodore H. Katz on 3/13/2007) (jmi) (Entered: 03/23/2007)
150 ORDER; plaintiff's motion for summary judgment is due 7/16/2007. Defendant's opposition papers and cross-motion for summary judgment are due 8/29/2007. A

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hearing on the plaintiff's request for a preliminary injunction will begin on 9/24/2007 and continue for no more than two weeks. Pre-hearing submissions shall be filed by 9/10/2007. This case is redesignated an ECF case. (Signed by Judge Gerard E. Lynch on 6/1/07) (kco) (Entered: 06/06/2007)
Case Designated ECF. (kco) (Entered: 06/06/2007)
151 NOTICE OF APPEARANCE by Elizabeth Sykes Saylor on behalf of Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Foster Thomas (Saylor, Elizabeth) (Entered: 06/08/2007)
Minute Entry for proceedings held before Judge Theodore H. Katz : Telephone Conference held on 7/24/2007. (Pretrial conference) (jar) (Entered: 07/25/2007)
152 FILING ERROR - WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY - FIRST MOTION for Summary Judgment re Prior Admission, Housing, & Exit Policies, MOTION to Certify Class re Prior Admission, Housing, & Exit Policies(MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND CLASS CERTIFICATION). Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Chareama Bolds, Julio Phitts.Responses due by 8/29/2007 (Attachments: # 1 Certificate of Service)(Saylor, Elizabeth) Modified on 7/31/2007 (KA). (Entered: 07/30/2007)
153 RULE 56.1 STATEMENT. Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Chareama Bolds, Julio Phitts. (Attachments: # 1 Certificate of Service)(Saylor, Elizabeth) (Entered: 07/30/2007)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - PDF ERROR. Note to Attorney Elizabeth Sykes Saylor to RE-FILE Document 152 FIRST MOTION for Summary Judgment re Prior Admission, Housing, & Exit Policies. MOTION to Certify Class re Prior Admission, Housing, & Exit Policies.. (KA) (Entered: 07/31/2007)
154 MEMORANDUM OF LAW in Support re: [150] Order, Set Deadlines/Hearings,, In support of Plaintiffs' Motions for Partial Summary Judgment and Class Certification. Document filed by Kenneth Williams, Daniel Velazquez, Foster Thomas, Chareama Bolds, Julio Phitts. (Attachments: # 1 Certificate of Service)(Saylor, Elizabeth) (Entered: 07/31/2007)
155 DECLARATION of Elizabeth S. Saylor in Support re: [150] Order, Set Deadlines/Hearings,, 154 Memorandum of Law in Support,. Document filed by Arthur Wallace, Kenneth Williams, Daniel Velazquez, Foster Thomas, Chareama Bolds, Julio Phitts. (Attachments: # 1 Certificate of Service# 2 Exhibit Ex. 17 Declaration of Warden of the Brooklyn House of Detention, signed by Valerie Oliver, Dec.9, 2002# 3 Exhibit Ex. 111 Declaration of Brett H. Klein, Assistant Corporation Counsel, Jan. 17, 2003# 4 Exhibit Ex. 112 Declaration of Deputy Warden of Security of Rose M. Singer Facility at Rikers Island, signed by Fidel Gonzalez, Dec. 9, 2002# 5 Exhibit Ex. 113 Declaration of Patrick Walsh, Assistant Chief of Special Operations for DOC, Aug. 17, 2006# 6 Exhibit Ex. 114 Affidavit of William Fraser, May 9, 2000# 7 Exhibit Ex. 121 Part 1 Deposition of Harry Ahl, Jan. 18, 2007# 8 Exhibit Ex. 121 Part 2 Deposition of Harry Ahl, Jan. 18, 2007# 9 Exhibit Ex. 130 Part 1 Deposition of Theresa Joseph, Dec. 28, 2006#

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10 Exhibit Ex. 130 Part 2 Deposition of Theresa Joseph, Dec. 28, 2006# 11 Exhibit Ex. 135 Part 1 Deposition of Richard Pagan, Feb. 28, 2007# 12 Exhibit Ex. 135 Part 2 Deposition of Richard Pagan, Feb. 28, 2007)(Saylor, Elizabeth) (Entered: 08/01/2007)
156 STIPULATION AND ORDER OF DISMISSAL: pursuant to FRCP 41(a) by and between defendants and intervenor plaintiffs to these cases, it is so ordered by the Court that all individual claims asserted with respect to the NYC Department of Correction's new admission or post -admission strip searches experienced after arraignment on felony charges by intervenor plaintiffs are hereby dismissed with prejudice. All individual claims asserted by intervenor-plaintiffs concerning the DOC's post-admission strip search policy, practice and/or custom, except those posy-admission strip searches conducted (a) whenever the detainee is leaving the confines of a DOC facility (the "Exit Policy") and (b) whenever the detainee's living quarters is searched (the "Housing Policy"), are dismissed with prejudice. All claims against Michael M. Bloomberg, NYC Dept. of Correction and NYC Dept. of Health and Mental Hygiene are hereby dismissed with prejudice. (Signed by Judge Gerard E. Lynch on 8/31/07) (kco) Additional attachment(s) added on 9/6/2007 (Cox, Kristin). (Entered: 09/05/2007)
157 ORDER: 1. Plaintiffs' request for preclusion of newly produced evidence is DENIED. 2. Defendants are directed to respond by 5:00 p.m. on Thursday, September 6, 2007, to all interrogatories and requests for admissions contained in Exhibit 1 to the August 17, 2007, letter from Elizabeth S. Saylor, Esq., to the Court. 3. Defendants are directed to make available a witness pursuant to Rule 30(b)(6) to discuss the new policy, as discussed above. 4. Plaintiffs' applications with respect to defendants' claims of privilege should be directed to Judge Katz. 5. As chambers staff informed the parties by phone on August 28, 2007 the defendants' request for an extension of time to serve plaintiffs with defendants' motion for summary judgment and opposition to plaintiffs' motion is GRANTED. Defendants' time to serve those papers on plaintiffs is extended to 6:00 p.m. Friday, August 31, 2007. So Ordered. (Signed by Judge Gerard E. Lynch on 8/31/07) (js) Additional attachment(s) added on 9/6/2007 (Scheib, Juliaann). Additional attachment(s) added on 9/6/2007 (Scheib, Juliaann). (Entered: 09/05/2007)
158 ENDORSED LETTER addressed to Judge Gerard E. Lynch from Genevieve Nelson dated 9/7/2007 re: Defendants request an extension of time for the parties to submit their preliminary injunction moving papers until September 12, 2007. ENDORSEMENT: SO ORDERED. (Signed by Judge Gerard E. Lynch on 9/10/2007) (jmi) (Entered: 09/13/2007)
159 MEMORANDUM OF LAW in Support of their motion for summary judgment and in opposition to the Plaintiff-Intervenors motions for partial summary judgment and class certification. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., Trevor Parks, Doctor/Nurse 1-50, Correction Officers, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook,

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The City of New York, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, William J. Fraser, Gary Lanigan, Robert N. Davoren(Chief of Department of the New York City Department of Corrections), Bernard Kerik. (pl) (Entered: 09/17/2007)
160 RESPONSE re: 153 Rule 56.1 Statement. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, America Services Group, Inc., Brown, Doctor/Nurse 1-50, Patrick Brown, Health and Hospitals Corporation, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (pl) (Entered: 09/17/2007)
161 RULE 56.1 STATEMENT. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, Health and Hospitals Corporation, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (pl) (Entered: 09/17/2007)
162 DECLARATION of Patrick Walsh in Support of Dft's motion for summary judgment. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Doctor/Nurse John/Jane Does 1-50, The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (pl) (Entered: 09/17/2007)
163 DECLARATION of Genevieve Nelson in Support re: [159] Memorandum of Law in Support. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Doctor/Nurse John/Jane Does 1-50, The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., Trevor Parks, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Bernard Kerik. (pl) (Entered: 09/17/2007)
164 DECLARATION of Genevieve Nelson Exhibits Volume IV. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, The Wardens of Rikers Island Correctional Facility, Jacqueline

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Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (pl) (Entered: 09/17/2007)
165 DECLARATION of Genevieve Nelson Exhibits Volume III. Document filed by Doe 1, John/Jane Doe no. 1, John/Jane Doe no. 2, John/Jane Doe no. 3, John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, The Wardens of Rikers Island Correctional Facility, Jacqueline Thomas-Andrews, Carolyn Thomas, Prison Health Services, Inc., America Services Group, Inc., Trevor Parks, Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, The Wardens of the New York City Department of Correction, Health and Hospitals Corporation, Kim Wallace, Chante Westhook, The City of New York, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Martin F. Horn, P.H.S. Medical Services, P.C., Trevor Parks, Thomas R. Frieden, William J. Fraser, Gary Lanigan, Robert N. Davoren((Chief of Department of the New York City Department of Corrections)), Bernard Kerik. (pl) (Entered: 09/17/2007)
166 DECLARATION of Genevieve Nelson Exhibits Volume II. Document filed by John/Jane Correction Officers Jane Does 1-500, John/Jane Doctor/Nurse John/Jane Does 1-50, America Services Group, Inc., Brown, Doctor/Nurse 1-50, Correction Officers, Patrick Brown, James Capoziello, Robert N. Davoren(Chief of of Department of DOC), Robert N. Davoren(Chief of Department of the New York City Department of Corrections) et al. (pl) (Entered: 09/17/2007)
173 ORDER: Defendants' requests to preclude the testimony of plaintiffs' witnesses are DENIED. Plaintiffs' request to preclude evidence regarding whether DOC facilities should be treated as prisons or jails is DENIED as moot. Defendants' requests to preclude evidence relating to class certification and to extend their time to submit briefing on class certification issues, are DENIED. So Ordered (Signed by Judge Gerard E. Lynch on 9/19/07) (js) (Entered: 09/21/2007)
174 FILING ERROR - DEFICIENT DOCKET ENTRY - (WRONG ECF LOGIN) NOTICE OF APPEARANCE by Elizabeth Sykes Saylor on behalf of Kenneth Williams, Daniel Velazquez, Foster Thomas, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Chareama Bolds, Julio Phitts, David Sanchez, Arthur Wallace (Saylor, Elizabeth) Modified on 10/2/2007 (lb). (Entered: 09/26/2007)
175 NOTICE OF APPEARANCE by Elora Mukherjee on behalf of Kenneth Williams, Daniel Velazquez, Doris Edwards, Samuel Figueroa, David Gonzalez, Afifa Hudspeth, Alan S. Olson, Foster Thomas, Chareama Bolds, Julio Phitts, David Sanchez, Arthur Wallace (Mukherjee, Elora) (Entered: 09/26/2007)

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Transaction Receipt

PACER Login:
Description:
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hs0328 Client Code:

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CLOSED, MEMBER, RELATED
U.S. District Court United States District Court for the Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:03-cv-04114-GEL

Cence, et al v. The City of New York, et al Assigned to: Judge Gerard E. Lynch Demand: $0 Lead case: 1:02-cv-05426-GEL-THK Member case: (View Member Case) Cause: 42:1983 Prisoner Civil Rights
Plaintiff David Cence individually and on behalf of a class of all others similarly situated
Plaintiff Diedre Hendricks individually and on behalf of a class of all others similarly situated
Plaintiff Keysha Lee Coreta Morris individually and on behalf of a class of all others similarly situated
Plaintiff Chanta Nixon individually and on behalf of a class of all others similarly situated
Plaintiff Federico Tenorio individually and on behalf of a class of all others similarly situated
Plaintiff Kim Wallace individually and on behalf of a class of all others similarly situated

Date Filed: 06/05/2003 Date Terminated: 07/11/2006 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Richard Cardinale Cardinale & Marinelli 26 Court Street Suite 1815 Brooklyn, NY 11242 718-624-9391 Fax: 718-624-4748 Email: rcardinaleesq@gmail.com LEAD ATTORNEY
represented by Richard Cardinale (See above for address) LEAD ATTORNEY
represented by Richard Cardinale (See above for address) LEAD ATTORNEY
represented by Richard Cardinale (See above for address) LEAD ATTORNEY
represented by Richard Cardinale (See above for address) LEAD ATTORNEY
represented by Richard Cardinale (See above for address) LEAD ATTORNEY

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Plaintiff Chante Westhook individually and on behalf of a class of all others similarly situated
V. Defendant The City of New York
Defendant The New York City Health and Hospitals Corporation
Defendant William J. Fraser (Commissioner of the New York City Department of Correction), individually Defendant William J. Fraser (Commissioner of the New York City Department of Correction), in his official capacities Defendant Gary Lanigan (First Deputy Commissioner of the New York City Department of Correction), individually Defendant Gary Lanigan (First Deputy Commissioner of the New York City Department of Correction), in his official capacity Defendant Robert N. Davoren

represented by Richard Cardinale (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212) 788-8714 Fax: (212) 788-0367 Email: GNELSON@LAW.NYC.GOV LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY

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(Chief of Department of the New York City Department of Correction), individually
Defendant
Robert N. Davoren (Chief of Department of the New York City Department of Correction), in his official capacity
Defendant
Bernard Kerik (former Commissioner of the New York City Department of Correction), individually
Defendant
Bernard Kerik (former Commissioner of the New York City Department of Correction), in his official capacity
Defendant
The Wardens of Rikers Island Correctional Facility
Defendant
The Wardens of the New York City Department of Correction
Defendant
Jacqueline Thomas-Andrews (Warden of the Rose M. Singer Facility for Women at Rikers Island in 2001), individually
Defendant
Jacqueline Thomas-Andrews (Warden of the Rose M. Singer Facility for Women at Rikers Island in 2001), in her official capacity
Defendant
Carolyn Thomas (Wardenof the Rose M. Singer Facility for Women), individually
Defendant
Carolyn Thomas

represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson

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(Warden of the Rose M. Singer Facility for Women), in her official capacity
Defendant Prison Health Services, Inc.
Defendant America Service Group, Inc.
Defendant M.D. Trevor Parks (Prison Health Service Medical Director), individually
Defendant M.D. Trevor Parks (Prison Health Service Medical Director), in his official capacity
Defendant Dr. Patrick Brown (Medical Director of Correctional Health Services), individually
Defendant Dr. Patrick Brown (Medical Director of Correctional Health Services), in his official capacity
Defendant Correction Officers 1-500 (fictitious names for the correction officers who strip searched the plaintiffs)
Defendant Correction Officers 1-500 (fictitious names for the correction officers who strip searched the plaintiffs), in their official capacities
Defendant Doctor/Nurse 1-50 (fictitious names for the health care professionals who perform

(See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY
represented by Genevieve Nelson (See above for address) LEAD ATTORNEY

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gynecological procedures at New York City jails), individually
Defendant
Doctor/Nurse 1-50 (fictitious names for the health care professionals who perform gynecological procedures at New York City jails), in their official capacities

Date Filed 06/05/2003 06/05/2003 06/05/2003 06/25/2003
06/27/2003 06/27/2003 06/27/2003 07/25/2003 07/25/2003

#

Docket Text

1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 475753. (jjm) (Entered: 06/11/2003)

CASE REFERRED TO Judge Gerard E. Lynch as possibly related 1:02cv5426. (jjm) (Entered: 06/11/2003)

2 STATEMENT OF RELATEDNESS by David Cence, Diedre Hendricks, Keysha Lee Coreta Morris, Chanta Nixon, Federico Tenorio, Kim Wallace, Chante Westhook re: that this action be filed as related to 02cv5426 (GEL). (jjm) (Entered: 06/11/2003)

3 Memo-Endorsement on letter addressed to Judge Lynch from Genevieve Nelson, dated 6/19/03; reset answer to the complaint due for 8/23/03 for Doctor/Nurse 1-50, for Doctor/Nurse 1-50, for Correction Officers, for Correction Officers, for Patrick Brown, for Patrick Brown, for Trevor Parks, for Trevor Parks, for America Service, for Prison Health Serv., for Carolyn Thomas, for Carolyn Thomas, for Jacqueline Thomas-Andrews, for Jacqueline Thomas-Andrews, for Wardens of NYC Corr., for Wardens of Rikers, for Bernard Kerik, for Bernard Kerik, for Robert N. Davoren, for Robert N. Davoren, for Gary Lanigan, for Gary Lanigan, for William J. Fraser, for William J. Fraser, for Health and Hospitals, for The City of New York . ( signed by Judge Gerard E. Lynch ); (pl) (Entered: 06/26/2003)

Case accepted as related to 1:02cv5426. Notice of assignment to follow. (jjm) (Entered: 06/27/2003)

4 Notice of Case Assignment to Judge Gerard E. Lynch . Copy of notice and judge's rules mailed to Attorney(s) of record: Richard J. Cardinale . (jjm) (Entered: 06/27/2003)

Magistrate Judge Theodore H. Katz is so designated. (jjm) (Entered: 06/27/2003)

STIPULATION and ORDER, The actions, 02cv5426 and 03cv4114, are consolidated for all purposes . ( signed by Judge Gerard E. Lynch ) Orig. doc. # 45 filed in 02cv5426. (sb) (Entered: 07/29/2003)

Consolidated Member Case. Lead Case Number: 1:02cv5426. (sb)

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07/30/2003 07/30/2003 07/30/2003
08/25/2003 08/25/2003 08/26/2003
10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003

(Entered: 07/29/2003)
Text not available. (Entered: 09/19/2003)
Text not available. (Entered: 09/19/2003)
6 AMENDED COMPLAINT by David Cence, Diedre Hendricks, Keysha Lee Coreta Morris, Chanta Nixon, Federico Tenorio, Kim Wallace, Chante Westhook (Answer due 8/23/03 for Doctor/Nurse 1-50, for Correction Officers, for Patrick Brown, for Trevor Parks, for America Service, for Prison Health Serv., for Carolyn Thomas, for Jacqueline Thomas-Andrews, for Wardens of NYC Corr., for Wardens of Rikers, for Bernard Kerik, for Robert N. Davoren, for Gary Lanigan, for William J. Fraser, for Health and Hospitals, for The City of New York ) amending [1-1] complaint ; Summons issued. (jco) (Entered: 09/19/2003)
RULE 1.9 CERTIFICATE filed by The City of New York. Original document filed in 02cv5426 (GEL), LEAD CASE. (db) (Entered: 08/27/2003)
5 ANSWER to Complaint by The City of New York (Attorney Genevieve Nelson ); jury demand. (jco) (Entered: 08/28/2003)
Memo-Endorsement on letter addressed to Hon. Gerard E. Lynch from Brett H. Klein, dated 8/22/03. counsel for defendants request a stay of discovery and the briefing of plaintiffs' motion for class certification pending the outcome of settlement negotiations. So Ordered . ( signed by Judge Gerard E. Lynch ); Original entry in 02cv5426 document number 47. (yv) (Entered: 08/28/2003)
7 WAIVER OF SERVICE of summons and complaint returned executed as to Robert N. Davoren mailed on 9/28/03. Answer due on 11/27/03 for Robert N. Davoren. (sb) (Entered: 10/07/2003)
8 WAIVER OF SERVICE of summons and complaint returned executed as to America Service mailed on 9/28/03 . Answer due on 11/27/03 for America Service . (sb) (Entered: 10/07/2003)
9 WAIVER OF SERVICE of summons and complaint returned executed as to Patrick Brown mailed on 9/28/03 . Answer due on 11/27/03 for Patrick Brown . (sb) (Entered: 10/07/2003)
10 WAIVER OF SERVICE of summons and complaint returned executed as to Trevor Parks, Trevor Parks mailed on 9/28/03 . Answer due on 11/27/03 for Trevor Parks, for Trevor Parks . (sb) (Entered: 10/07/2003)
11 WAIVER OF SERVICE of summons and complaint returned executed as to Prison Health Serv. mailed on 9/28/03. Answer due on 11/27/03 for Prison Health Serv. (sb) (Entered: 10/07/2003)
12 WAIVER OF SERVICE of summons and complaint returned executed as to Jacqueline Thomas-Andrews, Jacqueline Thomas-Andrews mailed on 9/28/03 . Answer due on 11/27/03 for Jacqueline Thomas-Andrews, for Jacqueline Thomas-Andrews. (sb) (Entered: 10/07/2003)

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10/03/2003 10/03/2003 10/03/2003 10/31/2003 03/09/2004 03/17/2004
04/16/2004 04/29/2004 05/24/2004

13 WAIVER OF SERVICE of summons and complaint returned executed as to Carolyn Thomas, Carolyn Thomas mailed on 9/28/03 . Answer due on 11/27/03 for Carolyn Thomas, for Carolyn Thomas . (sb) (Entered: 10/07/2003)
14 WAIVER OF SERVICE of summons and complaint returned executed as to Gary Lanigan, Gary Lanigan mailed on 9/28/03 . Answer due on 11/27/03 for Gary Lanigan, for Gary Lanigan . (sb) (Entered: 10/07/2003)
15 WAIVER OF SERVICE of summons and complaint returned executed as to William J. Fraser, William J. Fraser mailed on 9/28/03 . Answer due on 11/27/03 for William J. Fraser, for William J. Fraser . (sb) (Entered: 10/07/2003)
16 ANSWER to Complaint by Health and Hospitals, William J. Fraser, Gary Lanigan, Robert N. Davoren, Bernard Kerik, Jacqueline ThomasAndrews, Carolyn Thomas, America Service, Prison Health Serv., Patrick Brown, Trevor Parks (Attorney Genevieve Nelson from the Firm: Corporation counsel); jury demand. (dle) (Entered: 11/04/2003)
Plaintiffs' MEMORANDUM OF LAW in Opposition to the intervenorplaintiffs' moton to intervene. Document filed by David Cence, Diedre Hendricks, Keysha Lee Coreta Morris, Chanta Nixon, Federico Tenorio, Chante Westhook. (jco, ) Original filed in case 02cv5426, doc #51 (Entered: 03/12/2004)
17 ENDORSED LETTER addressed to Judge Gerard E. Lynch from Genevieve Nelson dated 3/11/04 re: granting counsel for dfts' request for an extension of time to respond to motion to intervene and for the court to adopt the following schedule: dfts' responses to be served on or before 3/11/04; Emery, Cuti, et al reply to be served on or before 3/24/04; motion returnable on 3/26/04. (Signed by Judge Gerard E. Lynch on 3/12/04) (dle, ) (Entered: 03/22/2004)
Intervenor-Plaintiffs' MEMORANDUM OF LAW in Opposition to Plaintiffs' Request for approval of Class Action Settlement. (orig. docmt dktd in case no. 02 cv 5426, docmt #55) (djc, ) (Entered: 04/20/2004)
REPLY MEMORANDUM OF LAW in Support of Approval of Class Action Settlement. Document filed by Diedre Hendricks, Keysha Lee Coreta Morris, Chanta Nixon, Federico Tenorio, Kim Wallace, Chante Westhook. (orig. document docketed in 02cv5426 as document #56). (pl, ) (Entered: 04/30/2004)
18 SCHEDULING ORDER: The partied having appeared for a pretrial conference on 5/20/2004: The motion for class certification filed on 10/17/2004 is withdrawn. Motions due by 6/4/2004. Cross Motions due by 6/25/2004. Responses due by 7/16/2004 Replies due by 7/30/2004. (Signed by Judge Gerard E. Lynch on 5/20/2004) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(jsa, ) (Entered: 05/25/2004)

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07/30/2004 07/30/2004 08/02/2004 07/19/2005 08/23/2005 09/08/2005 09/26/2005 11/03/2005 11/18/2005
11/18/2005

Reply Memorandum of Law in support of plaintiffs' amended motion for class certification. Original document filed in case #02cv5426, document #65. (dle, ) (Entered: 08/02/2004)
19 ENDORSED LETTER addressed to Judge Lynch from Genevieve Nelson dated 7/21/04: granting an extension of time to 8/2/04 for plntfs to serve their replies re their motion for class certification. (Signed by Judge Gerard E. Lynch on 7/22/04) (cd, ) (Entered: 08/02/2004)
Intervenor plaintiffs' reply memorandum in further support of intervenors' motion for class certification. (dle, ) Original document filed in case #02cv5426, document #66. (Entered: 08/04/2004)
REQUEST FOR EXCLUSION FROM CLASS. Filed by Keith Jones. (ae, ) (Entered: 07/29/2005)
ORDER: It is hereby ordered that Tobey Cohen is withdrawn as class representative in this matter. (Original filed in 02-cv-5426 as document #81) (Signed by Judge Gerard E. Lynch on 8/10/2005) (lb, ) (Entered: 08/25/2005)
TRANSCRIPT of proceedings held on May 31, 2005, 2:23 p.m. before Judge Gerard E. Lynch. Original Doc. # 82 Filed In 02 Civ. 5426. (dt, ) (Entered: 09/08/2005)
TRANSCRIPT of proceedings held on 5/31/2005 before Judge Gerard E. Lynch. Original in 02cv5426, document #83.(jar, ) (Entered: 09/26/2005)
DECLARATION of Robert N. Isseks in Support of plaintiffs' motion for an order, purs. to FRCP 23(h) awarding class counsel attorneys' fees. Original document filed in case #02cv5426, document #91.(dle, ) Modified on 11/4/2005 (dle, ). (Entered: 11/04/2005)
ORDER; plaintiff's request that the Court reject intervenor-plaintiffs' memo of law is DENIED. Pltf and deft's request that Dr. Stuart Grassian be precluded from testifying at the fairness hearing are GRANTED. Intervenor-plaintiff's request for the Court to order disclosure of certain information before the fairness hearing is DENIED. Intervenor-plaintiffs have until 11/18/05 to submit a written declaration by Dr. Grassian in connection with their objections to the proposed settlement. (original filed in 02cv5426 as doc#93) (Signed by Judge Gerard E. Lynch on 10/26/05) (kco, ) (Entered: 11/18/2005)
ORDER; Defendant's request for a stay of discovery is denied. The parties shall meet and confer regarding their outstanding discovery disagreements no later than November 15, 2005. Any disputes that cannot be resolved shall be submitted to the Court by a joint letter on or before December 1, 2005, in accordance with the Court's Individual Rule 2.F. Any such submission shall identify with precision the relief requested with respect to each issue and the parties' positions with respect to each request (Signed by Judge Gerard E. Lynch on 11/2/05); (orig. docmt dktd in case no. 02 cv 5426, docmt #94) (djc, ) (Entered: 11/18/2005)

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10/06/2006 10/20/2006 11/15/2006 11/20/2006 12/20/2006 01/30/2007

20 ORDER the Court is advised that the above-captioned civil action continues to appear as an open case in certain internal reports prepared by the Clerk's Office. This action was settled pursuant to this Court's approval of the class settlement in Kadian McBean et al. v. The City of New York st al., 2Civ 5426 (Doc.#105), on February 7,2006. Accordingly, the Clerk of the Court is respectfully directed to close the case. So Ordered. (Signed by Judge Gerard E. Lynch on 7/7/2006) (jmi, ) (Entered: 07/11/2006)
ENDORSED LETTER addressed to Judge Theodore H. Katz from Elizabeth Saylor dated 10/6/06 re: a request for an extension until 10/18/2006 to respond to the letter. ENDORSEMENT: SO ORDERED. ( original document filed in 02cv5426 as doc. #127) (Signed by Judge Theodore H. Katz on 10/6/06) (kco, ) (Entered: 10/11/2006)
21 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Elizabeth Saylor dated 10/18/2006 re: writing to request another extension until 10/23/2006 to respond to the letter. ENDORSEMENT: Granted. So Ordered. (Signed by Magistrate Judge Theodore H. Katz on 10/19/2006) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03cv-04114-GEL(lb, ) (Entered: 10/23/2006)
22 STIPULATION AND PROTECTIVE ORDER, regarding procedures to be followed that shall govern the handling of "Confidential Materials". (Signed by Judge Theodore H. Katz on 11/13/06) Filed In Associated Cases: 1:02-cv-05426-GEL-THK,1:03-cv-04114-GEL(ae, ) (Entered: 11/17/2006)
ENDORSED LETTER addressed to Mag. Judge Theodore H. Katz from Mariann Meier Wang dated 11/15/06 re: granting the parties request that the proposed discovery plans be submitted to Your Honor on 12/8/08, a week after the documents are produced. (orig. document docketed in 02cv5426 as document #134). (Signed by Judge Theodore H. Katz on 11/16/06) (pl, ) (Entered: 11/20/2006)
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material....(Original filed in 02-cv5426 as document # 141) (Signed by Magistrate Judge Theodore H. Katz on 12/19/2006) Copies Mailed By Chambers(lb, ) (Entered: 12/22/2006)
STIPULATION AND ORDER OF SETTLEMENT OF CLASS ACTION ADMINISTRATION FEES: The City of New York hereby agrees to pay plaintiffs' class counsel, the sum of $128,319.00 n full staisfaction of costs and expenses of the administration of the settlement in these actions between 4/8/2006 and 11/28/2006. In consideration for the payment of this sum, plaintiffs' class counsel agrees to dismissal of all claims it has or may have against defendants for the cost and expenses of the administration of the class actions, including attorneys fees and paralegal fees, costs and expenses...(Original filed in 02-cv-5426 as document # 144) (Signed by Judge Gerard E. Lynch on 1/25/2007) (lb) (Entered: 01/31/2007)

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------)(
KADIAN MCBEAN, et aI., Plaintiffs,
-against-
THE CITY OF NEW YORK, et aI. Defendants.
-----------------------------------------------------------------------)( JOEL RAMOS, et aI.,
Intervenor-Plaintiffs,
-againstTHE CITY OF NEW YORK, et aI.
Defendants. -----------------------------------------------------------------------)(

02 Civ. 05426 (GEL)(THK)

STIPULATION AND ORDER

STIPULATION AND ORDER This Stipulation and Order is made and entered into this 4th day of October, 2007, by and between the City of New York and its Department of Correction (hereinafter "City Defendant" or "DOC") and Foster Thomas, Daniel Velazquez, Kenneth Williams, Arthur Wallace, Julio Phitts, Chareama Bolds and David Sanchez (hereinafter "plaintiffs") (collectively the "parties"), and is made and entered into with reference to the following facts. WHEREAS, the plaintiffs have a pending action (Kadian McBean, et al. v. City ofNew York; Joel Ramos v. City ofNew York, et al., 02 Civ. 0546 (GEL)(THK)(the "Action")) against City Defendant and others for a variety of individual and class claims relating to strip search practices and two individual claims for forced gynecological exams; WHEREAS, the parties desire to resolve their dispute solely with respect to issues that were to be addressed at a factual hearing and accordingly wish to (1) agree to the certification of three classes; (2) agree to address remedial relief for the "Admission Injunctive Class" as defined below; and (3) to resolve certain matters; and, NOW THEREFORE, in consideration of the covenants and promises contained herein, the Parties, through their attorneys, agree, and the Court orders, as follows: DEFINITIONS For purposes of this injunction, the following terms shall have the following meamng: a. ''New Admission Non Felony Detainees" shall mean all individuals who are members ofthe Settlement Class defined in Section I as the "Admission hljullctive Class." b. "ECBA" shall mean Emery Celli Brinckerhoff & Abady LLP, counsel for plaintiffs.

c. A search shall be considered a "strip search" when there is expo.sure ofthe

genital and/or anal areas, and/or in the case of a female, the breasts, for the purpose of visual

inspection.

d. "Drug or Weapon Charges" shall mean the list of drug- and weapon-

related charges listed in paragraph 2 of the Stipulation and Order of Class Action Settlement,

dated June 21, 2005 in this action and any the following charges: § 205.20, Promoting Prison Contraband (2nd Degree); § 240.40, Appearance in Public Under the Influence of Narcotics or

Drugs, other than Alcohol; § 265.10, Manufacture, Transport, Disposition & Defacement of

Weapon and Dangerous mstrument and Appliances; § 265.35C, Prohibited Use of Weapon; §

270.05, Possession or Sale of Noxious Mater; § 400.00, Firearms License Violations; VTL § 1193, Driving Impaired (3rd Offense); and VTL § 1192(1), Driving Impaired.

e. "Effective Date" shall mean the date that the Court "so orders" this

injunction.

f.

"Class period" shall mean July 23,2002 to October 4,2007.

FINDINGS AND STIPULATIONS

• City Defendant concedes that the record in this Action demonstrates that the members of

the New Admission Non Felony Detainees Without Drugs or Weapons Class and the

New Admission Non-Felony Detainees Drug and Weapons Class were subjected to a

pattern and practice of strip searching upon admission. Class counsel concedes that City

:pefendant may still establish that a particular individual class member was subjected to a

permissible strip search, by bearing the burden of proof and through production of a

Visual Body Cavity Search Report (Form 443) or other reliable documentary evidence

2

for the individual in question that demonstrates that the strip search was based on a determination that reasonable suspicion required the search. • Pursuant to the pattern and practice of strip searching members of the New Admission Non Felony Detainees Without Drugs or Weapons Class and the New Admission NonFelony Detainees Drug and Weapons Class upon admission, DOC officers and supervisory personnel strip searched members of the aforementioned classes without making any determination or knowing whether they had been arraigned on a charge under the New York Penal Code that was related to possession or use of a drug and/or weapon. • The parties agree that the injunction herein conforms to the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626 ("PLRA"), and that the relief herein is narrowly drawn, extends no further than necessary to correct the violation of the federal rights of the class, and is the least intrusive means necessary to correct the violation of their federal rights.
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1.

Class Certification

The Parties hereby agree, subject to the Court's approval, to certify certain classes pursuant to

Fed. R. Civ. P. 23(b)(2) or (b)(3) and to have ECBA appointed as Class Counsel for each. The

Classes shall be:

All pretrial detainees arraigned solely on non-felony charges:

(a) who have been or will be admitted to DOC custody, but were/are not also simultaneously admitted on: (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) a violation of felony probation or (v) a City sentence of less than one year and who are not already serving at State sentence at the time of their admission (the "Admission Injunctive Class" pursuant to Fed. R. Civ. P. 23(b)(2));

(b) who were admitted to DOC custody between July 23,2002 and October 4,2007 but were not also simultaneously admitted on: (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) Drug or Weapon Charges; (v) a violation of felony probation; (vi) a City sentence of less than one year; or (vii) who were not already serving a State sentence at the time of their admission (the ''New Admission Non Felony Detainees Without Drugs or Weapons Class" pursuant to Fed. R. Civ. P. 23(b)(3));

(c) who were arraigned on Drug or Weapon Charges and who were admitted to DOC custody between July 23,2002 and October 4,2007 but were not also simultaneously admitted on: (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) a violation of felony probation; (v) a City sentence of less than one year; or (vi) who were not already serving a State sentence at the time of their admission (the "New Admission Non Felony Detainees Drug and Weapon Class" pursuant to Fed. R. Civ. P. 23(b)(3)).

II. Remedies for the Admission Injunctive Class

1.

City Defendant will not subj ect any member of the Admission Injunctive

Class to a strip search upon admission into DOC custody without reasonable suspicion.

A. Revisions to Written Policies

2.

City Defendant shall incorporate revisions to DOC written policies such

that there is a uniform and plain language message across all relevant policies concerning the

4

prohibition of strip searching New Admission Non Felony Detainees without reasonable suspicion. In particular, Directive 4508R-C, Operations Order 16/89, and Command Level Orders concerning 4508R-C and Operations Order 08/02 and any other relevant written policies ("Relevant Written Policies") concerning the manner and means of processing New Admission Non Felony Detainees and/or the manner and means of searching inmates generally will be revised to reflect in plain language the fact that Operations Order 08/02 governs the search of New Admission Non Felony Detainees and will be revised to ensure that conflicting directions or . instructions shall be eliminated.
3. Within two weeks of October 4, 2007, ECBA will provide City Defendant with the Relevant Written Policies marked up to reflect suggested changes to ensure that paragraph 2 is implemented.
4. City Defendant will work in good faith with ECBA to incorporate such suggested changes as appropriate. Draft revised policies will be provided to ECBA within twenty-:one (21) days of the receipt of suggested changes from ECBA. ECBA will return policies with comments within fourteen days.
5. City Defendant will promulgate revised policies ("Revised Written Policies") within three weeks of receiving ECBA's final comments, and will ensure full and proper dissemination of such policies through all appropriate channels.
6. Within two weeks of the Revised Written Policies being fully disseminated, City Defendant shall provide an affidavit of compliance to the Court and to ECBA setting forth specifically how and when the Revised Written Policies were promulgated and distributed, and attaching copies of all the final Revised Written Policies. Copies of the final Revised Written Policies may be redacted to the extent the policies do not concern search procedures.
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B.

Training

7.

Immediate training of intake personnel at new admission facilities:

Within four months of October 4, 2007, trainings concerning how to conduct searches of New

Admission Non Felony Detainees shall be completed for all personnel whose regular post is the

intake area of any DOC new admission facility, and no officer will work an intake search post in

a new admission facility who has not completed new admission search training ("Intake

Personnel Training").

8.

Training module: Within one month of October 4, 2007, an in-service

training module shall be created and put into use that will be devoted exclusively to instructing

in-service personnel on how to conduct searches of New Admission Non Felony Detainees

("Module").

9.

The Module shall also be included in every round of in-service personnel

training (whether it is of Corrections Officers, Captains, or Assistant Deputy Wardens) that

occurs after the Module is finalized ("In Service Training").

10.

An applicable job knowledge package incorporating all elements of the

Module must also appear in every training packet/disk that is provided to personnel who are

applying for a promotion.

11.

Until two years from the Effective Date, the Module dedicated to this

training shall be included in every round of training at the DOC Academy for new hires (''New

Hire Training").

12.

The Intake PersOlmel Training, Promotion Training, and New Hire

Training (and any other training conducted pursuant to paragraphs 7-11 of this subsection) shall

be comprised of, at a minimum, the following components. In-Service Training shall include

6

the same components set forth below, except that the information set forth in sub-paragraph (ii) may be conveyed via classroom instruction rather than a walk-through.
(i) a training session of at least one hour devoted exclusively to how to conduct searches of New Admission Non Felony Detainees, including instructions (a) that specifically forbid New Admission Non Felony Detainees from being strip searched unless reasonable suspicion is found, and (b) that gowns are to be provided for a New Admission Non Felony Detainee's privacy;
(ii) a walk-through demonstration inside an intake area, directing personnel specifically during the walk-through: (a) how to identify and separate inmates into pens according to whether or not they are New Admission Non Felony Detainees, (b) when and how New Admission Non Felony Detainees are given a gown, (c) where they ~e permitted to change into the gown, (d) how their clothes are placed on a line scan machine, (e) what procedures are followed while the New Admission Non Felony Detainees are wearing the disposable gown, (f) where and how they are permitted to put their clothes back on, (g) where disposable gowns are kept within the search room or search area, (h) how to re-order or replenish supplies of gowns ifthey are in short supply or not present, (i) who within a command is responsible for ensuring supply of gowns,
7

(j) how to conduct a search that ensures privacy for New Admission Non Felony Detainees, and which does not involve a strip search as defined herein, in the unlikely event no gowns are available during intake, (k) what constitutes reasonable suspicion as a basis for strip searching a New Admission Non Felony Detainee, including specific examples, (1) what fonns and procedures must strictly be followed when reasonable suspicion is detennined, and (m) what logbooks must be filled out and how; (iii) a handout that summarizes in plain language a checklist of all the things that must be done to search a New Admission Non Felony Detainee; and (iv) a simple one-page test that each DOC staff member being trained must fill out and pass concerning the relevant search procedures for New Admission Non Felony Detainees, and which each staff member must sign legibly and on which slhe must print hislher name and shield number. (v) In the event a New Admission Non Felony Detainee refuses the offer of a disposable gown during intake, such refusal shall be documented and DOC shall not be considered to be out of compliance with the provisions of this Stipulation and Order. 13. DOC shall adopt a policy regarding discipline concerning failure to follow the procedures set forth in Operations Order 08/02, and the Module and other relevant training shall also include a clear statement of this policy. The disciplinary procedures shall follow established command discipline procedures, duly negotiated with the applicable labor unions. Such violation will be deemed a schedule "D" violation.
8

14. Within four months of the Effective Date, City Defendant shall provide the Court

and ECBA with an affidavit of compliance with respect to all steps taken to implement the

paragraphs in this subsection and attaching all training, testing, and disciplinary materials created

and being used therefor. Attachments provided to the Court and/or ECBA may be redacted

insofar as they do not relate to the provisions concerning search training, testing, or discipline.

City Defendant shall also retain copies of the one-page test completed by DOC staff until two

years after the Effective Date.

III.

Special Master for the Admission Injunctive Class

15. Within 30 days of October 4, 2007, the parties shall mutually agree upon a

Special Master who shall be appointed to ensure that DOC is not routinely strip searching New

Admission Non Felony Detainees and that the City Defendant is not violating this Stipulation

and Order (the "Special Master"). Non-compliance under this injunction shall not be based on

isolated or sporadic events. Additionally, non-compliance shall not be based on an inmate's

documented refusal of a gown. In the event that the parties cannot agree upon a Special Master

within 30 days of October 4,2007, the parties shall each present five suggested Special Masters

to Judge Lynch, who shall select the Special Master or choose his own. The Special Master

shall serve for two years after the Effective Date, and may hire a reasonable number of staff or

assistants to help himlher, and hislher fees and the fees of his/her staff shall be paid for by City

Defendant on a monthly basis.

16. The Special Master shall provide written reports to the Court and both parties

concerning City Defendant's compliance as the Court directs.

17. City Defendant shall provide the Special Master access to any and all materials for

purposes of making determinations about compliance with this injunction.

9

18. City Defendant shall also freely grant the Special Master access to people and places within DOC for purposes of the Special Master's ensuring DOC's compliance with this injunction, and shall cooperate with the Special Master to ensure the freedom of hislher movement and conversations with DOC staff, within constraints required for security reasons including escorts in the jails, and provisions for the privacy of inmates, as needed. For example, the Special Master shall be permitted to inspect intake areas, to speak with search room or intake area officers, supervisors and inmates leaving a search room area or a DOC facility, to inspect where and how gowns are kept both in intake areas and with respect to DOC's supplies area, and to view logbooks and post-order folders located in intake areas. These are examples only and are not meant to limit in any way areas which the Special Master may choose to inspect or people with whom the Special Master may wish to speak. To the extent City Defendant has security concerns, the Special Master may be required to sign a confidentiality statemept that shall not impede hislher ability to report effectively on City Defendant's compliance.
19. DOC shall within thirty days of October 4, 2007, place permanent signs which are (i) at least two feet by two feet in length and width, (ii) clearly legible and in plain English and Spanish, (iii) placed in a secure manner (through bolts or screws) to a prominent and easily viewed location in the search room (e.g., on the front or side of an x-ray machine which is easily viewable to an inmate entering the room or area) and inside the holding pens in the intake areas and (iv) which state "FOR YOUR SAFETY AND THE SAFETY OF OTHERS, ALL INMATES ARE SUBJECT TO SEARCH UPON ADMISSION. NON-FELONY NEW ADMISSION DETAINEES WILL BE PROVIDED A PAPER GOWN FOR PRIVACY, AND WILL NOT BE SEARCHED FULLY UNDRESSED UNLESS THERE IS REASONABLE SUSPICION TO BELIEVE THAT YOU POSSESS DRUGS, WEAPONS AND/OR OTHER
10

CONTRABAND. IF YOU BELIEVE YOU HAVE BEEN SEARCHED IN VIOLATION OF THIS RULE, PLEASE CALL 1-800 ___." An equivalent alternative form of notice may be agreed upon by the parties or approved by the Court.
20. A toll free number shall be created and paid for by City Defendant, and the Special Master shall administer it, including by leaving a voicemail message requesting that callers clearly state and spell their names, their book and case number or NYSID number, the facility at which they were strip searched and what date, and a means of contacting them again (e.g., a mother or brother's phone number). The Special Master alone shall also be able to access and listen to the recordings on this toll free number and consider such infortnation in writing hislher reports and recommendation. The Special Master or hislher staff shall also keep a log book noting the details of such messages.
21. Both sides may speak with the Special Master freely and without the other party present, and may present the Special Master with evidence concerning DOC's compliance or non-compliance with respect to this Stipulation and Order and with respect to any potential routine strip searching of New Admission Non Felony Detainees. IV. Attorneys' Fees
22. Within sixty (60) days of October 4, 2007, City Defendant shall pay ECBA interim reasonable attorneys' fees and costs of 50% of Class Counsel's lodestar, based on Class Counsel's current rates, for work conducted by ECBA in the Action to date, without prejudice to ECBA to seek the remaining 50% and reasonable attorneys fees and costs that the Court may award pursuant to 42 U.S.C. § 1988 at some later date for the entire Action. For purposes of this interim payment only, Class Counsel shall provide a summary bill and good faith representations and respond to any further reasonable requests for information and documentation by City
11

Defendant. With respect to the consideration of fees for the entire Action, Class Counsel will

submit a detailed bill and City Defendant reserves the right to any and all legal arguments

concerning fees, including good faith challenges to reasonableness of certain entries. The

interim amount paid shall be credited to the City Defendant at the time of any future award.

After Court approval of the Stipulation and Order, Plaintiffs shall also be entitled to an additional

award of fees, costs, and disbursements to be fixed by the Court or agreed to by and between the

parties hereto to monitor and enforce compliance with the Stipulation and Order.

V.

Procedural Matters

23. With respect to each class set forth in Section I, the parties shall work

expeditiously together to create a plain language notice form in English and Spanish, and shall

work in good faith together to seek final approval from the Court through a fairness hearing.

24. Nothing contained herein shall in any way limit the ability of the City

Defendant and DOC to strip search New Admission Non Felony Detainees or any other detainee

or inmate in custody upon reasonable suspicion that the detainee or inmate possesses drugs,

weapons or contraband.

25. None of the obligations other than class certification shall be enforceable

after two years from the Effective Date.

26. This Stipulation may be executed ill counterparts, and exchanged by

facsimile or email.

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Dated:

New York, New York October 4, 2007

Richard D. Emery Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000
Attorney for Plaintiffs

MICHAEL A. CARDOZO Corporation Counsel ofthe
City ofNew York Attorney for City Defendant Muriel Goode-Trufant 100 Church Street, Room 3-164 New York, New York 10007 (212) 788-8681

Richard D. Emery SO ORDERED:

Hon. Gerard Lynch Dated this ------ day of---------, 2007

13

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------------- x

KADIAN MCBEAN, et al.,

Plaintiffs,

02 Civ. 05426 (JGK) (THK)

-against-

THE CITY OF NEW YORK, et al., Defendants.
------------------------------------------------------------------------- x JOEL RAMOS, et al.,
Intervenor-Plaintiffs,

-against-

THE CITY OF NEW YORK, et al., Defendants.
----------------------------------------------------------------------- x

STIPULATION OF SETTLEMENT

This Stipulation and Order is made and entered into on this __ day of March 2010, between the City of New York (hereinafter “the City”) and Intervenor-Plaintiffs (hereinafter “Plaintiffs”) Foster Thomas, Daniel Velazquez, Kenneth Williams, Alan Olson, Arthur Wallace, Julio Phitts, Chareama Bolds, David Sanchez, and Doris Edwards (collectively the “Parties”), and is made and entered into with reference to the following facts.

WHEREAS, on July 15, 2002, a group of plaintiffs filed an action challenging the New York City Department of Correction’s (“DOC”) policy of strip searching pre-trial new admission detainees charged with misdemeanors and lesser offenses;

WHEREAS, on February 18, 2004, Plaintiffs, through their counsel, Emery Celli Brinckerhoff & Abady LLP, intervened, seeking injunctive relief and damages on a variety of individual and class claims relating to strip search practices and individual and class claims for forced gynecological exams;

WHEREAS the Parties, seeking to avoid additional protracted, expensive, and unnecessary litigation, agree to the entry of this Stipulation of Settlement (hereinafter “Stipulation”) to resolve all issues that were raised in this class action by the Plaintiffs individually or as class representatives;
WHEREAS the Parties, seeking to avoid additional protracted, expensive, and unnecessary litigation, also agree to the entry of this Stipulation to resolve the claims of certain individuals who allege that they were strip searched in violation of the Injunction Settlement, as defined below in paragraph 24 (“Post-2007 Persons”);
NOW, THEREFORE, with the agreement of all Parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
DEFINITIONS 1. The “Settlement Class” is defined as all pretrial detainees arraigned solely on nonfelony charges:
a. who were admitted to DOC custody after arraignment between July 23, 2002 and October 4, 2007 but were not also simultaneously admitted on (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) a violation of felony probation; (v) a City sentence of less than one year; or (vi) who were not already serving a State sentence at the time of their admission (“2002-2007 Subclass”); or,
b. who were admitted to DOC custody after arraignment between July 15, 1999, and July 22, 2002 on a Drug or Weapon Non-Felony Charge as defined in paragraph 23, but did not receive a monetary settlement as part of the 2005 Settlement, as
2

defined in paragraph 22, and were not also simultaneously admitted on (i) any felony charges; (ii) a parole violation; (iii) an outstanding warrant for a felony offense; (iv) a violation of felony probation; (v) a City sentence of less than one year; or (vi) who were not already serving a State sentence at the time of their admission (“1999-2002 Subclass”).
2. “Final Class List” means all of the persons in the Settlement Class, as determined by the Administrator after the Administrator performs an analysis to ensure that persons are not listed twice or incorrectly included. The Final Class List includes those persons who ultimately decide to Opt-Out of the Settlement Class. All individuals on the Final Class List will be given notice of this Stipulation.
3. “Named Plaintiffs” means Foster Thomas, Daniel Velazquez, Kenneth Williams, Alan Olson, David Sanchez, Arthur Wallace, Chareama Bolds, and Julio Phitts. These persons represent all or part of the Settlement Class.
4. “GYN Plaintiffs” means Chareama Bolds and Doris Edwards, both of whom asserted claims regarding purported forced gynecological examinations.
5. “Former Class Representatives” means Joel Ramos, Samuel Figueroa, David Gonzalez, and Afifa Hudspeth. The Former Class Representatives are not “Named Plaintiffs” or “GYN Plaintiffs” and their claims were previously dismissed by this Court and/or they settled all of their claims as part of the 2005 Settlement.
6. “Class Counsel” means Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, New York 10019.
7. A “Settlement Class Member” (“SCM”) means any member of the Settlement
3

Class who does not file a valid and timely Request for Exclusion as provided in paragraph 58 of this Stipulation.
8. An “Opt-Out” is any potential SCM who files a timely Request for Exclusion as specified in paragraph 61.
9. The “Bar Date” is the date established by the Court by which any SCM who wishes to receive payments pursuant to the Stipulation must file his/her Claim Form(s). The Parties agree that this date should be 120 days from when the Administrator first mails the Claim Packets to the persons on the Final Class List.
10. The “Claim Form” is a document, in a form approved by the Court, that SCMs must complete and sign in order to be considered for payment pursuant to this Stipulation.
11. A “Claim Packet” means a “Claim Form,” together with a notice in a form approved by the Court. The Claim Packet will be mailed by the Administrator to all persons on the Final Class List.
12. “Summary Notices” means a one-page English and a one-page Spanish summary of this Stipulation in a form approved by the Court.
13. “Administrator” means the person or organization designated by Class Counsel and appointed by the Court to administer the Class Fund, disseminate the Claim Packets, and review and determine the validity and amount of claims submitted by SCMs, according to the procedures set forth herein.
14. “Class Fund” means the amount to be paid by the City for all claims of SCMs, service awards to Named Plaintiffs, payments to GYN Plaintiffs, administrative costs, and attorneys’ fees and costs. That amount shall be $33 Million, unless it is reduced pursuant to
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paragraphs 32-34 because less than 10% of the persons on the Final Class List submit a Claim Form. The Class Fund does not include the amount paid to Post-2007 Persons.
15. “Settlement Costs” means $4 Million of the Class Fund, which shall be paid directly to Class Counsel. From this amount, Class Counsel shall pay service awards to Named Plaintiffs, payments to GYN Plaintiffs, Administrator’s costs, and Class Counsel’s own past, present and future fees and costs. This amount does not include the attorneys’ fees and costs previously paid to Class Counsel.
16. The “Remainder” means that portion of the Class Fund that shall be paid to the Administrator to pay SCMs claims. That amount shall be $29 Million, unless it is reduced pursuant to paragraph 32-34 because less than 10% of the persons on the Final Class List submit a Claim Form, or the Court reduces the Settlement Costs. If the Court reduces the Settlement Costs, that reduction will be added to the Remainder.
17. “Class Settlement Fund Account” (“CSFA”) means a bank account to be established by the Administrator for the benefit of the Settlement Class. The CSFA shall be interest bearing if the costs associated with making it interest bearing (such as tax preparation and bank fees) are less than the likely interest earned. If the CSFA is an interest bearing account, any amount remaining after the costs described in this paragraph will be subject to the conditions of paragraph 73 herein.
18. “Preliminary District Court Approval” means the date, following the submission of this Stipulation, executed, to the District Court by the Parties, but prior to a fairness hearing on this Stipulation, on which the District Court grants preliminary approval of the Stipulation.
19. “Final District Court Approval” means the date, following the submission of this
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Stipulation, executed, to the District Court by the Parties, and after a fairness hearing on this Stipulation, on which the District Court grants final approval of this Stipulation.
20. The “Effective Date for Payment” is the date when the City’s obligation to pay the Class Fund of $33 Million (minus sums advanced for costs of notice pursuant to paragraph 35) becomes effective. It is one day following entry of the Final District Court Approval of the Stipulation by an Order from the District Court.
21. “Released Parties” means any and all of the Defendants, namely the City, William J. Fraser, Gary M. Lanigan, Bernard B. Kerik, Robert N. Davoren, Martin F. Horn, Thomas R. Frieden, Prison Health Services, Inc., P.H.S. Medical Services P.C., Trevor Parks, and James Capoziello,1 as well as their past or present affiliates, subsidiaries, parents, successors and predecessors, officers, directors, agents, employees, attorneys, advisors, insurers and any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any Defendant, and the legal representatives, heirs, successors in interest or assigns of the Defendants.
22. “2005 Settlement” means the court-approved settlement dated June 21, 2005 wherein the Court certified the class as: “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails pursuant to the standard new admission strip search procedure.” The 2005 Settlement provided that each class member would receive $750 if they claim to have been strip searched once during that class period and $1000 if they claim to
1 By Stipulation and Order dated August 29, 2007, the Parties agreed to the dismissal with prejudice of all claims against defendants Michael M. Bloomberg, Mayor of the City of New York, the New York City Department of Health and Mental Hygiene, and the New York City Department of Correction.
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have been strip searched two or more times during that class period. Excluded from the 2005 Settlement class were pre-trial detainees who, at the time they were admitted to one of DOC’s new admission facilities, were charged with a Drug or Weapon Non-Felony Charge as defined in the paragraph below.
23. “Drug or Weapon Non-Felony Charge” means the following drug and weaponsrelated offenses: N.Y. Penal Law Sections: (a) § 220.03 Criminal Possession of a Controlled Substance in the Seventh Degree, a class A misdemeanor; (b) § 220.45, Criminal Possession of a Hypodermic Instrument, a class A misdemeanor; (c) § 220.50, Criminal Possession of Drug Paraphernalia in the Second Degree, a class A misdemeanor; (d) § 221.05, Unlawful Possession of Marijuana, a violation; (e) § 221.10, Criminal Possession of Marijuana in the Fifth Degree, a class B misdemeanor; (f) § 221.15, Criminal Possession of Marijuana in the Fourth Degree, a class A misdemeanor; (g) § 221.35, Criminal Sale of Marijuana in the Fifth Degree, a class B misdemeanor; (h) § 221.40, Criminal Sale of Marijuana in the Fourth Degree, a class A misdemeanor; (i) § 265.01, Criminal Possession of a Weapon in the Fourth Degree, a class A misdemeanor; and (j) § 265.06, Unlawful Possession of a Weapon upon School Grounds, a violation. Also excluded from the class were those who were charged pursuant to the following New York City Administrative Code Sections: (a) § 10-131, Firearms; (b) § 10-133, Possession of Knives or Instruments; and (c) § 10-134, Prohibition on Sale of Certain Knives; and those who were charged pursuant to Vehicle and Traffic Law § 1192(4), Operating a Motor Vehicle while impaired by a drug.
24. “Injunction Settlement” means the Stipulation and Order, signed by the Parties on October 4, 2007 and preliminarily approved by the District Court on October 5, 2007 and finally approved by the District Court at a fairness hearing on February 5, 2010 and by an Order dated
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February 12, 2010.
25. “Post-2007 Persons” means the following persons who have alleged that, after October 4, 2007, he or she was strip searched in violation of the Injunction Settlement and whose claims are being resolved as part of this settlement: John Able, Michael Booker, Chester Brown, Marquis Copeland, David Cruz, Harold Eggleston, Osvaldo Gomez, Michael Gruich, Naquawn Hallback, Susan Longton, Lacy Love, Saeed Mack, Henry Maxwell, Terrence Medlock, Harold Nance, Tyrone Reynolds, Dennis Ryan, and Yunepha Sumpter. The settlement amount for these claims is not part of the Class Fund.
26. “Settled Class Claims” mean any and all claims, debts, demands, rights, or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys’ fees, administration fees, expert or consulting fees, and any other costs, expenses, or liabilities whatsoever), whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, whether fixed or contingent, accrued or un-accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature, that arise out of strip searches of non-felon pre-trial detainees at DOC jails during the initial new admission process from July 15, 1999 until and including October 4, 2007.
27. “Settled Named Plaintiff Claims” mean any and all claims, debts, demands, rights, or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys’ fees, administration fees, expert or consulting fees, and any other costs, expenses, or liabilities whatsoever), whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature, (i) that have been asserted in this action by the Settlement Class, Former
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Class Representatives, GYN Plaintiffs, and/or Named Plaintiffs against any of the Released Parties, or (ii) that arise out of strip searches or gynecological exams at DOC from July 15, 1999 until and including October 4, 2007 and could have been asserted in any forum by the Settlement Class, Former Class Representatives, Named Plaintiffs, GYN Plaintiffs, or any of them against any of the Released Parties.
28. “Settled Post-2007 Claims” mean any and all claims, debts, demands, rights, or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys’ fees, administration fees, expert or consulting fees, and any other costs, expenses, or liabilities whatsoever), whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, whether fixed or contingent, accrued or un-accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature that arise out of alleged strip searches of non-felon pre-trial detainees at DOC jails during the initial new admission process from October 5, 2007 until the date this Stipulation is signed by the Parties.
CLASS CERTIFICATION 29. By an Opinion and Order dated August 14, 2009, the District Court certified the 1999 to 2002 Subclass as defined in paragraph 1(b).
30. As part of the Injunction Settlement, the Parties agreed to the certification of two classes pursuant to Fed. R. Civ. P. 23(b)(3), which together comprise the 2002 to 2007 Subclass that is defined in paragraph 1(a). As part of the Injunction Settlement, the Parties also agreed to the certification of an Admission Injunction Class pursuant to Fed. R. Civ. P. 23(b)(2). The District Court preliminarily approved the certification of these classes on October 5, 2007. The District Court finally approved certification of the injunctive class pursuant to Fed. R. Civ. P
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23(b)(2) class after a fairness hearing on the Injunction Settlement on February 5, 2010. Certification of the Fed. R. Civ. P 23(b)(3) classes that comprise the 2002 to 2007 Subclass was not at issue at the fairness hearing on the Injunction Settlement, and that certification has not been finally approved.
31. The Parties reaffirm their agreement, subject to the District Court’s final approval, to certify the 2002 to 2007 Subclass pursuant to Fed. R. Civ. P. 23(b)(3) and will seek such certification at the fairness hearing on this Stipulation.
FUNDING AND RESOLUTION OF CLAIMS FOR DAMAGES 32. Subject to the terms and conditions of this Stipulation, the City agrees to pay Thirty-Three Million Dollars ($33,000,000.00) which shall be used to pay all claims of SCMs, service awards to Named Plaintiffs, payments to GYN Plaintiffs, administrative costs, and past, present, and future attorneys’ fees and costs. The $33 Million shall be reduced pursuant to paragraphs 33 and 34, if less than 10% of the persons on the Final Class List submit valid Claim Forms. The total amount less any reductions pursuant to paragraphs 33 and 34 is the Class Fund. The Class Fund does not include the $802,308.51 in attorneys’ fees and costs previously paid to Class Counsel pursuant to the Injunction Settlement. The Class Fund also does not include the additional individual payments that will be made to “Post-2007 Persons,” as set forth in paragraph 41.
33. If less than 10% of the persons on the Final Class List submit valid Claim Forms, the $33 Million shall be reduced as follows: After subtracting the Settlement Costs awarded from the $33 Million, the Remainder (“Remainder”) shall be divided by one-tenth of the number of SCMs on the Final Class List, which amount shall constitute the “Paragraph 33 Award Amount.” The Paragraph 33 Award Amount should then be multiplied by the number of SCMs
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on the Final Class List who constitute the difference between (i) 10% of the Final Class List and (ii) the amount equal to the number of SCMs who submitted Claim Forms. The resulting amount will be refunded to the City.
34. For example, if 100,000 individuals are on the Final Class List and $4,000,000 is paid to cover the Settlement Costs, and only 9,000 SCMs submit Claim Forms, then the amount is calculated as follows: The Remainder is $29,000,000. $29,0000/10,000 = $2,900. $2,900 (10,000 – 9,000) = $2,900,000. In this example, the Class Fund would be reduced by $2,900,000 and the maximum award an SCM shall receive would be $2,900. This $2,900,000 would be refunded to the City.
35. Within two weeks after Preliminary District Court Approval, the City shall deposit or cause to be deposited into a bank account designated by the Administrator by wire transfer an amount of same–day-available funds equal to the amount approved by the District Court for payment to the Class Administrator to cover the costs of notice agreed to by the Parties and/or ordered by the Court, and will provide additional funds to the Administrator as approved by the Court, except that the total of said funds shall not exceed $600,000. Any such payment shall be debited against the Settlement Costs. If the Stipulation is not ultimately approved by the Court, then all such funds paid to the Administrator, to the extent they are available after payment of all accrued class administration expenses, shall be returned to the City. The Administrator will submit monthly bills to the Parties and may pay itself from these funds in accordance with its bill if the Parties do not object to the bill within 30 days of receipt of the monthly bill.
36. Subject to the terms and conditions of this Stipulation and the approval of the Court, within thirty (30) calendar days of the Effective Date for Payment, the City shall deposit or cause to be deposited into the Class Settlement Fund Account (“CSFA”) the Class Fund (a) less
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the Settlement Costs, and (b) less deductions due to child support liens as provided for in paragraphs 43(c) and 57. Within thirty (30) calendar days of the Effective Date for Payment, the City shall deposit by wire transfer to the trust account of Class Counsel the Settlement Costs less the amount already advanced under the terms of the immediately proceeding paragraph.
37. In the event that this Stipulation receives Final District Court Approval, but the funds are not immediately paid due to an appeal by a third party (see definition of “Effective Date for Payment”), the City will place the Class Fund in an interest bearing escrow account, and the interest accrued shall be added to the Class Fund for the benefit of the Class in the event that the Stipulation is finally approved and entered as a judgment. Should the settlement not be finally approved after exhaustion of all appellate avenues, all such funds, including interest earned on them, shall be returned to the City (except for class administration costs already expended by the Administrator). Should the settlement not be finally approved, or if for any other reason there is a delay in immediate payment by the City, the City shall have no claim for the funds advanced to the Administrator for notices against the Named Plaintiffs, the GYN Plaintiffs, the Post-2007 Persons, the Settlement Class, Class Counsel, or the Administrator for reimbursement of the advanced funds, except that any advance funds shall be credited towards any subsequent settlement in this action.
38. The City will join Class Counsel in seeking the Court’s approval of the Stipulation, including approval of the Settlement Costs.
39. No payment shall be made to eligible SCMs before the Effective Date for Payment. Claims will be processed between the date of Preliminarily District Court Approval and the Effective Date for Payment. Upon the Effective Date for Payment, processed claims may be paid.
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40. No additional payments shall be paid to Class Counsel for fees and costs before the Effective Date for Payment. After the City deposits or wires Class Counsel the Settlement Costs, as set forth in paragraph 36, Class Counsel may immediately withdraw money from the Settlement Costs to pay its own fees and costs before a final accounting, as long as sufficient money is reserved to pay the Administrator’s costs, GYN Plaintiffs’ payments, and service awards to Named Plaintiffs. If the Administrator’s final bill is less than the amount previously advanced, the Administrator shall refund to Class Counsel the remainder. A copy of the Administrator’s final accounting, as well as monthly bills, shall be provided to the City.

41. Within ninety (90) days of the Effective Date for Payment, the City will pay Post2007 Persons the same Award Amount, as defined in paragraph 42, that SCMs who submit Claim Forms are paid. Such amounts shall be paid from funds other than the Class Fund. If Post-2007 Persons are members of the Settlement Class and submit a valid Claim Form by the Bar Date, they may also recover the Award Amount from the Class Fund. That is, Post-2007 Persons may receive the Award Amount twice if they are also eligible SCMs who submit timely valid Claim Forms.

42. follows:

PAYMENTS TO THE SETTLEMENT CLASS The amount awarded to SCMs who submit Claim Forms shall be calculated as

a. First, the amount paid to the Administrator for costs; to Class Counsel for attorneys’ fees and costs; to Named Plaintiffs for service awards; and to GYN Plaintiffs (collectively “Settlement Costs”) shall be subtracted from the Class Fund. This amount shall be $4 million unless otherwise reduced or altered by the Court.

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b. Second, the amount of money previously paid pursuant to the 2005 Settlement to SCMs who submit Claim Forms pursuant to this Stipulation shall be added to the remaining amount of the Class Fund for calculation purposes. This added amount does not increase the Class Fund but is included for calculation purposes only.
c. This amount shall then be divided by the number of SCMs who submit valid Claim Forms.
d. The resulting amount of (c) shall be the “Award Amount.”
43. SCMs who timely file a completed and signed Claim Form and who are eligible for an award shall each be entitled to receive this Award Amount from the Class Fund in compensation for their claims, subject to the following provisions:
a. In addition to the Award Amount, the Named Plaintiffs in this action shall receive additional service awards as set forth in paragraph 63 below; and the GYN Plaintiffs shall receive payments as set forth below in paragraph 64 below. The additional amounts referred to in this sub-paragraph shall be paid from the Settlement Costs.
b. If a SCM was paid as part of the 2005 Settlement, the previous settlement amount shall be deducted from the Award Amount, so that all SCMs shall be given an equal amount for any new admission strip search claim between July 15, 1999 and October 4, 2007.
c. If an SCM who submitted a Claim Form has a New York child support lien, the amount of that lien shall be deducted from the amount the Administrator pays him
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or her, pursuant to the provisions in paragraph 57. The amount paid by the Administrator to these SCM’s will be their share of the Remainder minus any child support lien already deducted by the City.
44. If the calculation of the Award Amount set forth in paragraph 42 above results in an Award Amount of less than $1,800 and if more than 2000 individuals not on the Final Class List are valid claimants within the Settlement Class, then the City agrees to add an additional amount to the Class Fund above the agreed-upon $33 Million so that the valid claims by those not on the Final Class List do not reduce the amount paid to those on the Final Class List below $1,800. This additional amount will be added to the Remainder and used solely towards payments of the Award Amounts.
45. Class Counsel has the discretion to void checks mailed to SCMs and not cashed within 120 days of issuance. Notice of this procedure will be provided at the time the checks are issued. Class Counsel, on written notice to the City and the Court, shall have the discretion to (a) reissue the checks, or (b) add the amount of the voided checks back to the Class Fund to be divided equally amongst eligible SCMs, or (c) issue checks to persons who make late claims for good cause shown, or (d) seek an award by the Court consistent with cy pres principles. If permission is granted to make late claims for good cause shown, any amount due and owing attributable to New York child support liens shall be deducted and forwarded to the City prior to any payment to an SCM who submitted a late claim.
46. The Administrator is permitted for good cause shown (including proper documentation and proof of authority) to issue checks in the name of a person other than the SCM.
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ADMINISTRATOR 47. The Administrator’s duties shall include administering the Class Fund, including but not limited to the following matters: (1) issuing notice, including information about the right to object or opt out of the settlement; (2) locating class members; (3) distributing Claim Packets to and receiving executed original Claim Forms of same from those on the Final Class List; (4) establishing and administering the Class Fund and upon conclusion of the process, closing the Fund; (5) paying all income taxes, if any, owed by the Class Fund; (6) determining eligibility for awards on the basis of information provided by counsel for the Parties and the SCMs, validating the claims, and providing the Parties a list of those persons found preliminarily eligible every 30 days; (7) calculating the amounts of awards; (8) issuing and mailing checks to eligible SCMs, and issuing and filing all required tax forms and statements; (9) developing procedures and responding to inquires from SCMs and Opt-Outs about this Stipulation and the procedures contained herein, including by the use of a toll-free number; (10) creating a database of SCMs who have filed timely and valid Claim Forms; (11) establishing a toll-free number, which will be included in the Claim Packet and on the Summary Notices; (12) creating a database of Opt-Outs; and (13) providing the Parties with monthly bills and a final accounting.
48. The City agrees to facilitate the work of the Administrator by, among other things, obtaining and providing to the Administrator, information, data, documents, and records in the City’s possession, which is relevant and appropriate to facilitate the administration of the Class Fund, to the extent such information is disclosable to the Administrator under federal, state and/or local laws. Within forty-five (45) days of Preliminary District Court Approval of the Stipulation, the City will provide the Administrator with an Excel spread sheet containing the full names of all the SCMs, along with their aliases, Social Security Number, date of birth,
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NYSID number, address at the time of the last admission that made them part of the Settlement Class (“last relevant admission”), last relevant admission date, last relevant admission charge, and last known address. To determine the SCM’s last known address, the City shall check certain databases to which it has access, including DOC records of more recent admissions, the New York City Department of Probation records, Human Resource Administration records, and Department of Homeless Services records. Where necessary and/or appropriate, the Parties shall cooperatively seek appropriate court orders to obtain the addresses of SCMs. The City’s obligation regarding the information listed in this paragraph only extends to the extent SCMs provided accurate and complete information.
49. To the extent that the Administrator and/or Class Counsel receive inquires that they cannot resolve, the Administrator and/or Class Counsel shall group such inquires and submit them in writing to a designated person at the Office of Corporation Counsel on a recurring basis, but not more often than a weekly basis. Results of the investigations will be provided in writing.
50. Information provided to Class Counsel and the Administrator pursuant to the prior two paragraphs shall be confidential, and may not be disclosed to anyone except Class Counsel, Defendants’ Counsel, certain City agencies (including DOC, Department of Homeless Services, Human Resources Administration, and the Comptroller’s Office), the Administrator, or the Court under seal. Class Counsel and the Administrator shall not disclose the confidential information to any person not a member of their staff. To the extent Class Counsel or the Administrator seek to disclose this information to any other person or entity, they must first seek Defendants’ Counsel’s consent in writing. Defendants’ Counsel shall not unreasonably withhold consent. In addition, after consent is given, but before disclosing the confidential information to anyone else,
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including, any agent, contractor, or expert, the Administrator or Class Counsel shall first have such person or organization sign the confidentiality agreement attached hereto as Exhibit A. A signed copy of Exhibit A shall be provided to Defendants’ Counsel by expedited transmission immediately but no later than two business days after execution. Class Counsel and the Administrator shall take all reasonable steps to insure that the confidential information concerning all proposed class members and SCMs, remain private and confidential. In addition, the information provided to Class Counsel and the Administrator regarding the proposed class members and SCMs will not be used for any other purpose other than in this litigation and for the administration of this Stipulation. Similarly, the City will not use any information concerning SCMs or proposed class members that is provided by the Administrator or Class Counsel for any other purpose other than in this litigation and for the administration of this Stipulation, and the City shall keep such information confidential.
51. The Administrator will apply for a tax ID number, if necessary, and take all necessary steps for the timely creation of the CSFA prior to the forty-fifth day from the Final District Court Approval.
52. The Administrator shall provide the City the Employer Identification Number for the CSFA, and a completed W-9 Form and bank routing information for the trust fund account, within 45 days of the Final District Court Approval.
53. The Administrator will treat income taxes as the first priority for payment, and therefore, shall, on a quarterly basis, set aside an amount sufficient to pay all income taxes, if any, owed by the CSFA on interest earned to date. The Administrator shall pay all income taxes, if any, on a quarterly basis. The City Comptroller shall have the right to inspect and copy all tax forms (and worksheets), and monthly bank statements of the CSFA. The Administrator will
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provide to Class Counsel, Defendants’ Counsel, and the City Comptroller with a monthly statement of expenses paid. The City will not be responsible for taxes, penalties, or interest incurred on the Class Fund. The Administrator shall issue all required IRS forms.
54. Within thirty (30) days of receiving the Final Class List, the Administrator shall mail by first class mail, postage prepaid, to all persons on the Final Class List for whom an address is available a copy of the Claim Packet.
55. Subject to approval from the District Court, the Administrator and Class Counsel shall be responsible for determining a plan to ensure that as many SCMs as reasonably possible receive the Claim Packet and see the Summary Notices. A copy of the plan should be sent to Defendants’ Counsel.
56. The SCM must submit a completed Claim Form to the Administrator by the Bar Date unless such date is extended by order of the Court. The Administrator shall reject claims that are untimely. A Claim Form is deemed submitted upon deposit in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the U.S. Post Office, or when submitted for delivery by a commercial express carrier, or when actually received by the Administrator, whichever date is earlier.
57. Every thirty (30) days, after the Preliminary District Court Approval, the Administrator shall provide the Parties a list of those persons who are preliminarily eligible so that the City may on a rolling basis determine whether that person’s Award Amount will need to be reduced due to New York child support liens. The City will not exercise its right to reduce the payments set forth in this Stipulation by exercising its right to recover any other amounts, including but not limited to amounts due for unpaid City taxes including personal income tax, real estate related taxes, unpaid parking tickets, unpaid Environmental Control Board fines, or
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any medicaid costs correctly paid against bills from the New York City Health and Hospitals Corporation. No benefits currently received by SCMs may be terminated or reduced as a result of Award Amounts unless required by federal or state law or regulation. This does not constitute a waiver of any right to separately recoup overpayments or any amounts owed solely to federal or state governments if such is required by federal or state law or regulation. Within thirty (30) days of receiving the last list of those persons eligible to receive an Award Amount, the City shall provide the Administrator and Class Counsel with a list of those persons who have New York child support liens and the amount that shall be deducted from each persons’ Award Amount to be forwarded to the beneficiary of the child support lien. Prior to providing this list, the City shall send each person owing child support liens a notice describing that they owe these liens and information on how to file a challenge regarding the deduction of the child support liens from the Award Amount. If the City later determines that the amount of the liens was incorrect, the City shall directly pay that person the over-deduction of the amount that was withheld from that person’s Award Amount.
58. Any SCM who fails to submit a Claim Form by the Bar Date or any courtmandated extension, shall be forever barred from receiving payments pursuant to the Stipulation. Such person shall be bound by all of the terms of the Stipulation, and the Judgment entered herein, including but not limited to the release of all Released Persons of all Settled Class Claims, as defined in paragraph 26.
59. The Administrator shall mail letters and/or otherwise contact SCMs who by the Bar Date submit partially completed Claim Forms that are deficient to provide them up to thirty (30) additional days to validate their Claim Forms. The absence of a social security number or other identifying information shall not be a basis for not issuing an award to a SCM if the
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Administrator can otherwise confirm the identity of the SCM.
60. Rights and claims hereunder shall survive the death of SCMs. If a SCM who is eligible to receive monetary relief under this Stipulation is deceased, the amount payable to such deceased SCM shall be paid to the appropriate representative of his/her estate. The representative of the estate shall provide proof of death and appropriate documentation to show that she/he is properly a representative of the estate. If the Administrator determines, after reasonable opportunity has been given, that there is insufficient information or proof regarding the deceased person’s estate to permit such payment, the deceased person’s share shall be distributed in accordance with the terms set forth in paragraph 45 for the distribution of returned checks.
EXCLUSION FROM THE SETTLEMENT CLASS 61. Any potential SCM who wishes to be excluded from the Settlement Class must by the Bar Date mail a request to be excluded from the Settlement Class (“Request for Exclusion”) to the Administrator. Any Request for Exclusion must be in writing and state the name, date of birth, address, and telephone number (if any) of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement Class. Originals of all Requests for Exclusion shall be retained by the Administrator and until such originals are filed with the Court. Named Plaintiffs will not request exclusion pursuant to this paragraph. A list of all exclusions, as well as a copy of the written Requests for Exclusions sent to the Administrator, shall be provided to Class Counsel and Defendants’ Counsel.
62. Any SCM who does not timely file a Request for Exclusion shall conclusively be deemed to have become a SCM and to be bound by this Stipulation and by all subsequent proceedings, orders, and judgments herein.
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SERVICE AWARDS FOR NAMED PLAINTIFFS 63. In addition to the Award Amount, each of the eight Named Plaintiffs will be paid an additional $8,000 each as an award for services provided to the class and for any inconvenience, pain, suffering, and other non-pecuniary loss experienced as a result of having been a named plaintiff in this action. Class Counsel shall pay these service awards from the Settlement Costs. The amount of the service awards was negotiated before it was agreed that the awards would be paid from the Settlement Costs.
PAYMENTS TO GYN PLAINTIFFS 64. The GYN Plaintiffs shall receive $20,000 each for their alleged injury, physical pain, and suffering arising out of purported forced gynecological exams. Class Counsel shall pay the GYN Plaintiffs this amount from the Settlement Costs. The amount of these awards was negotiated before it was agreed that the awards would be paid from the Settlement Costs. If they are eligible SCMs and submit valid and timely Claim Forms, the GYN Plaintiffs will also receive an Award Amount from the Administrator out of the Remainder.
65. While Plaintiffs initially asserted class claims arising out of forced gynecological exams, a class was never certified. All putative class claims arising out of forced gynecological exams are hereby dismissed. All claims by the GYN Plaintiffs arising out of forced gynecological exams from July 15, 1999 until and including October 4, 2007, are hereby dismissed with prejudice.
ADDITIONAL NOTICE 66. To augment the Administrator’s efforts to ensure that as many persons as reasonably possible receive notice, the Parties will work cooperatively together to ensure that the Summary Notices are posted in places where SCMs are likely to see them. The Administrator
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will provide the Parties with the requested number of copies of the Summary Notices, and will email the Parties a pdf version of the Summary Notices.
67. The City agrees to ensure that the Summary Notices are posted in the following locations within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later:
a. NYC Department of Correction: In the intake areas and law libraries of all of its facilities, in the DOC intake areas of the state court houses, and in each DOC housing area, where legal notices regularly appear.
b. Department of Homeless Services: In the entrance areas of all shelter intake areas and in all shelters run by the Department of Homeless Services, in areas where legal notices regularly appear.
c. New York State Department of Correctional Services: DOC will forward copies of the Summary Notices to NYS DOCS and request that NYS DOCS post the Summary Notices as extensively as reasonably possible, in locations where individuals incarcerated in their facilities are likely to see them.
d. New York City Department of Probation (“DOP”): DOC will forward copies of the Summary Notices to DOP and request that DOP post the Summary Notices as extensively as reasonably possible, in the adult supervision office for each borough in New York City in locations where individuals on probation are likely to see them.
68. Within two weeks of the initial mailing of the Claim Packets and approval of the
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Summary Notices, whichever date is later, Class Counsel will forward copies of the Summary Notices to the New York State Office of Court Administration and the New York State Division of Parole and request that they post the Summary Notices as extensively as reasonably possible, throughout offices and/or locations where arrestees, detainees or individuals on probation are likely to see them.
69. Within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later, Class Counsel will mail a letter to the following public defender offices requesting that they post the Summary Notices: The Legal Aid Society (in each borough), The Bronx Defenders, New York County Defenders, Queens Law Association, Brooklyn Defenders, Neighborhood Defender Services, and Staten Island Legal Defense Services.
70. Within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later, Class Counsel will mail a letter to the following nonprofits requesting that they post the Summary Notices: Coalition for the Homeless, Osborne Association, East Harlem Life Plan, Phoenix House, GreenHope, Fortune Society, Center for Employment Opportunities, STRIVE, Doe Fund, Odyssey House, Jericho Project, Exodus Transitional Community, Bowery Residents Committee, Fifth Avenue Committee, Legal Action Center, Women’s Prison Association, Palladia, and Center for Urban Community Services (CUCS).
71. Summary Notices also may be placed by Class Counsel in locations comparable to those set forth in this section in an effort to give notice to as many SCMs as is reasonably practicable.
72. Nothing in this section shall limit further appropriate efforts to provide notice.
24

EXCESS FUNDS 73. Any amount remaining in the Remainder shall be distributed to the Settlement Class. If funds are not sufficient for distribution, then Class Counsel will petition the Court for an order consistent with cy pres principles.
EFFECT OF STIPULATION 74. Within five (5) business days of when the Class Fund (minus sums advanced for costs of notice) is paid to the Administrator and Class Counsel by the City, all claims in the above-referenced action will be dismissed, with prejudice, and without costs, expenses, or fees in excess of the amount authorized by paragraphs 15, 35 and 36 above.
75. The Stipulation, as of the Effective Date for Payment, resolves in full all claims, with prejudice, against the Released Persons by SCMs, including the Named Plaintiffs arising out of any strip searches of non-felony pre-trial detainees at DOC jails during the initial new admission process from July 15, 1999 until and including October 4, 2007. When the Stipulation is final, as of the Effective Date for Payment, all SCMs, including the Named Plaintiffs, hereby release all such claims.
76. This Stipulation, as of the Effective Date for Payment, also resolves in full and with prejudice all claims by the GYN Plaintiffs for purported forced gynecological examination claims from July 23, 2002 until and including October 4, 2007.
77. This Stipulation, as of the Effective Date for Payment, resolves in full and with prejudice all claims by the Post-2007 Persons for claims arising out of any purported strip searches of non-felony pre-trial detainees at DOC jails during the initial new admission process from October 5, 2007 until the date this Stipulation is signed by the Parties.
78. This Stipulation contains all the terms and conditions agreed upon by the Parties,
25

and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except for the 2007 Injunction Settlement in this matter.
79. As of the Effective Date for Payment, the SCMs, including the Named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency, or other tribunal, or to file any complaint with regard to acts of commission or omission by the Released Persons respecting Settled Class Claims.
80. As of the Effective Date for Payment, the Post-2007 Persons hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency, or other tribunal, or to file any complaint with regard to acts of commission or omission by the Released Persons respecting Settled Post-2007 Claims.
81. As of the Effective Date for Payment, the GYN Plaintiffs hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency, or other tribunal, or to file any complaint with regard to purported forced gynecological exams from July 15, 1999 until and including October 4, 2007.
82. Each SCM shall be deemed to have submitted to the jurisdiction of the Court. 83. No Opt-Out shall share in any monetary benefits provided by this Stipulation. 84. The Parties will take all necessary and appropriate steps to obtain approval of the Stipulation and dismissal of the action with prejudice. If the District Court approves this Stipulation, and if there is an appeal from such decision by a non-party, Defendants will join Class Counsel in defense of this Stipulation on any such appeal or subsequent proceeding.
26

85. The Parties hereby agree not to appeal any aspect of this Stipulation, under any condition or circumstance, or to otherwise collaterally attack or challenge this Stipulation.
86. The District Court shall retain urisdiction over the Parties to enforce and administer the terms of this Stipulation and Order during the period it, or any of its provisions. remain in effect.

Date: March 16, 2010

EMERY CELLI I3RINCKERHOFF & ABADY LLP Counsellor Named Plaintiffs & Class 75 Rockefeller Plaza, 2 th 0 Floor New York, New York 10019
By: Richard D. Emery
SO ORDERED:

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Counselfor Defendants 100 Church Street New York, New York 10007
t BY:%f% M rid Goodè-Trufan

U.S.D.J.

27

EXHIBIT A
The undersigned hereby acknowledges that I have read paragraphs 48-50 of the Stipulation of Settlement, dated March 16, 2010, in McBean v. City of New York, 02 Civ. 05426 (S.D.N.Y) and Joel Ramos v. City of New York, and understands that the information provided to me pursuant to this settlement is confidential, and may not be disclosed to any other person or entity except Class Counsel, Defendants’ Counsel, the Administrator, or the Court under seal. The undersigned agrees not to use this confidential information for any purpose other than in connection with the administration of this settlement in this lawsuit, and will not disclose any of the confidential information in any form to any other person or entity except Class Counsel, Defendants’ Counsel, the Administrator, or the Court under seal.

________________________________ Date

___________________________ Signature

______________________________ Print Name

_____________________________ Occupation

28

 
 About this Settlement

About the Administrator • Contact Information
McBean v. The City of New York
Case No. 02 Civ. 05426 (S.D.N.Y.)

About this Settlement

Making a Claim

More Information FAQs Notice Overview What are your rights

If you were a non-felony pretrial detainee and were strip searched during the intial admission process to a New York City Department of Corrections facility between July 15, 1999 and October 4, 2007, you may be entitled to payment under a Class Action Settlement.

New York City to Pay $33 Million in Damages for Illegal Strip Searches
New York City has agreed to pay $33 Million in money damages to approximately 100,000 pretrial detainees arraigned on misdemeanors and lesser offenses who were illegally strip searched at admission to a City jail between 1999 and 2007, even though there was no reason to believe they were concealing drugs or contraband. These humiliating strip searches required groups of detainees to fully undress in front of each other and in front of multiple guards, lift their genitals or breasts, spread their buttocks, cough while squatting, and allow guards to inspect their private body cavities. Those illegally strip searched were being held on minor offenses – such as jumping turnstiles, failing to pay child support, shoplifting, and trespassing – and there was no reason to believe they were concealing drugs or contraband.
The March 16, 2010 settlement, which the Court preliminarily approved today, provides for monetary awards, with a maximum amount of $2900, for those pretrial detainees strip searched during the initial admission process to a New York City Department of Corrections (“DOC”) facility between July 15, 1999 and October 4, 2007. Richard D. Emery, lead attorney for the class, said: “We are pleased that this serious deprivation of rights has been redressed for the tens of thousands of people who suffered these humiliating strip searches. We hope in some small way these damage awards will stand for some semblance of justice for these victims.”
The Court preliminarily approved the settlement on March 22, 2010. In early to mid June, a notice and a claim form will be sent to all 100,000 persons in the class. Class members must return the claim form to be eligible for payment.
To view the Settlement Agreement and other Court Documents filed for this Settlement, click on the More Information tab.
What are my choices?

Settlement Update - Monday, March 22, 2010
The Settlement Agreement was Preliminarily Approved on March 22, 2010.
Important Settlement Dates: last updated Monday, March 22, 2010
NOTICE AND CLAIM FORM AVAILABLE: IN APPROXIMATELY THREE MONTHS.
CONTINUE TO CHECK THIS SITE FOR MORE INFORMATION.

What is an objection?

How do I file a claim and what is the deadline? Why is this Class Action?

http://nycstripsearch.com/[3/23/2010 10:28:57 AM]

About this Settlement Can I speak at the hearing? more frequently asked questions
Disclaimer
Please do not contact either The City of New York or the court about this settlement. Any and all callers will be directed to this website. If you have questions, please refer to the FAQ’s and the other information posted here or call 1-800-760-5508. This site is not operated by The City of New York. This class action settlement is supervised by the court and is administered by a claims administration firm that handles all aspects of claims processing. View our Privacy Statement
http://nycstripsearch.com/[3/23/2010 10:28:57 AM]

 
 McBean v. City of New York, 228 F.R.D. 487 (2005)

228 F.R.D. 487 United States District Court,
S.D. New York.
Kadian MCBEAN et al., individually and on behalf of a class of all others similarly situated, Plaintiffs,
v. The CITY OF NEW YORK et al., Defendants. David Cence et al., individually and on behalf of a class of all others similarly situated, Plaintiffs,
v. The City of New York et al., Defendants. Joel Ramos, Foster Thomas, Daniel Velazquez, and Kenneth Williams, individually and on behalf of all others similarly situated, Intervenor–
Plaintiffs, v.
The City of New York et al., Defendants.
Nos. 02 Civ. 5426(GEL), 03 Civ. 4114(GEL). | April 27, 2005.
Attorneys and Law Firms
*489 Richard J. Cardinale, Cardinale, Hueston & Marinelli, Brooklyn, New York, Robert N. Isseks, Middletown, New York, for Plaintiffs.
Richard D. Emery, Matthew D. Brinckerhoff, Marian Meier Wang, Emery, Celli, Brinckerhoff & Abady LLP, New York, New York, for Intervenor–Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York (by Genevieve Nelson, Assistant Corporation Counsel), New York, New York, for Defendants.
Opinion
OPINION AND ORDER
LYNCH, District Judge.
In this putative class action for federal civil rights violations arising from policies or practices of the New York City Department of Corrections (“DOC”) applied at New York City jails, plaintiffs move for class certification and appointment of class counsel, while intervenorplaintiffs oppose plaintiffs’ motions and cross-move for class certification and for appointment of intervenorplaintiffs as class representatives and of intervenorplaintiffs’ counsel as class counsel. Plaintiffs’ motions will be granted, and those of intervenor-plaintiffs will be denied.

BACKGROUND
Plaintiffs in this consolidated action, represented by Cardinale, Hueston & Marinelli and Robert N. Isseks, bring suit on behalf of themselves and all others similarly situated, primarily for the allegedly unlawful strip searches to which they were subjected upon their postarraignment admission to jails operated by DOC. It is undisputed that prior to July 22, 2002, DOC had a policy of strip searching every detainee newly admitted to its facilities, including those charged with misdemeanors and lesser offenses. (Cardinale Decl., Ex. 2, ¶ 17 (affidavit of DOC Chief William Fraser submitted with amicus briefing in Shain v. Ellison).) The strip searches consisted of “a search of the inmate [’s] apparel after the inmate has removed his/her clothing [,] accompanied by a visual inspection of the inmate’s mouth, hair, armpits, knees and toes. The inmate is then instructed to squat to ensure that no contraband is being secreted in the area of the buttocks.” (Id. ¶ 25.)
In Shain v. Ellison, 273 F.3d 56 (2d Cir.2001), the Second Circuit held a similar blanket policy in force at the Nassau County Correctional Center unconstitutional, affirming a long line of its decisions dating back to Weber v. Dell, 804 F.2d 796 (2d Cir.1986), in which it had held that “the Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.” Weber, 804 F.2d at 802. In Shain, a divided panel of the Second Circuit declined to apply the lesser standard of “reasonably related to legitimate penological interests,” developed in the context of prison regulations by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (and applied to strip searches in prisons by the Second Circuit in Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992)). Id. at 65–66. The Second Circuit also clarified in Shain that Weber and its progeny, Walsh v. Franco, 849 F.2d 66 (2d Cir.1988) and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994), applied to post-arraignment detainees. Shain, 273 F.3d at 63. Blanket policies mandating the strip search of every post-arraignment misdemeanor detainee upon admission, regardless of the existence of individualized reasonable suspicion that the detainee is concealing weapons or other contraband, are thus clearly unconstitutional under the law of this Circuit.
Plaintiffs in McBean v. City of New York, No. 02 Civ.
1

McBean v. City of New York, 228 F.R.D. 487 (2005)
5426(GEL), female misdemeanor *490 arrestees admitted post-arraignment to DOC facilities, commenced suit on July 15, 2002, alleging that DOC had ignored Shain, and was continuing to implement an unconstitutional intake strip search policy. The complaint in McBean made additional allegations relating to nonconsensual gynecological examinations of female misdemeanor detainees (McBean Compl. ¶ 24–34), and, in fact, the proposed class was defined as “all women who since 1999:(1) have been charged with misdemeanors or noncriminal offenses in the City of New York; (2) who were detained at Rikers Island Correctional Facility; and (3) who were subjected to defendants’ policy, practice, and custom of strip searching pretrial detainees: (a) without reasonable suspicion that the arrestee is concealing a weapon or other contraband, and/or in the presence of onlookers or members of the opposite sex; and (b) subjected to a nonconsensual gynecological examination.” (Id. ¶ 4.) Just one week after the McBean suit was filed, DOC issued a new intake policy, Operations Order 08/02, which provides that “[p]ost-arraignment detainee inmates incarcerated for Misdemeanor and/or Violation Offenses shall not be made the subject of a strip search during the new admission process unless there is reasonable suspicion that the inmate is in possession of contraband.” (Operations Order 08/02, Cardinale Decl., Ex. 14, at Part II.)
Plaintiffs moved for a preliminary injunction and for class certification on October 17, 2002, claiming that in spite of the purported official policy change, DOC had not changed its unlawful practices. (Letter of Richard J. Cardinale to the Court, dated December 9, 2002, at I.) Prior to moving for class certification, plaintiffs amended their complaint on October 11, 2002, to add additional named plaintiffs, at least one of whom was male, and to propose two separate classes: first, a class of all newlyadmitted pretrial detainees, without regard to gender, subjected to DOC’s strip search policy, and second, a class of newly-admitted female detainees subjected to forced gynecological examinations. (Second Am. Compl. ¶¶ 5–6.) On December 18, 2002, the Court denied plaintiffs’ preliminary injunction motion in an oral opinion, and deferred decision on plaintiffs’ class certification motion pending a decision on an intervening motion by defendants to disqualify plaintiffs’ counsel, and the completion of discovery on certain issues material to certification. A related case, Cence v. City of New York, No. 03 Civ. 4114(GEL), was filed on June 5, 2003, and consolidated for all purposes with the McBean case on July 25, 2003. The classes proposed in the Cence complaint were coextensive with those for which the McBean plaintiffs moved for certification in October 2002.
Decision on the certification motion was again deferred when the Court stayed discovery and further briefing on the motion by order dated August 25, 2003, pending the

outcome of settlement negotiations. The parties attended several settlement conferences under the supervision of Magistrate Judge Theodore H. Katz through the end of 2003 and into early 2004. In mid-March 2004, Magistrate Judge Katz informed the Court that the parties had reached a settlement, and the parties submitted briefing requesting the Court’s approval of the proposed settlement in accordance with Federal Rule of Civil Procedure 23(e).
The proposed “settlement class” differed from that defined in the amended McBean and Cence complaints, and consisted of only those “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails.” (Stipulation and Order of Class Action Stlmt. (“Proposed McBean Stlmt.”), D. Cert. Opp. Mem., Ex. A, ¶ 1.) Excluded from the class were pre-trial detainees arraigned on certain narcotics and weapons-related charges.1 Plaintiffs indicated in their briefing in support of *491 the settlement that they were no longer pursuing claims for forced gynecological exams on behalf of the class, but that the settlement would not extinguish the rights of absent class members to pursue such claims in subsequent litigation.2 (P. Stlmt.Mem.3, 14.) The proposed settlement provides absent class members who do not opt out of the settlement with individual awards of $750 (or $1000, if the individual was subject to multiple strip searches), named plaintiffs with incentive awards of $25,000, and the class as a whole with attorneys’ fees and costs in the amount of $500,000. (Proposed McBean Stlmt. ¶¶ 28, 29, 43, 46.)

1

Specifically, plaintiffs’ proposed class shall not include

pre-trial detainees who, at the time they were admitted

to DOC facilities, were charged with the following

Penal Law Sections: (a) § 220.03 Criminal Possession

of a Controlled Substance in the Seventh Degree, a

class A misdemeanor; (b) § 220.45, Criminal

Possession of a Hypodermic Instrument, a class A

misdemeanor; (c) § 220.50, Criminal Possession of

Drug Paraphernalia in the Second Degree, a class A

misdemeanor; (d) § 221.05, Unlawful Possession of

Marijuana, a violation; (e) § 221.10, Criminal

Possession of Marijuana in the Fifth Degree, a class B

misdemeanor; (f) § 221.15, Criminal Possession of

Marijuana in the Fourth Degree, a class A

misdemeanor; (g) § 221.35, Criminal Sale of Marijuana

in the Fifth Degree, a class B misdemeanor; (h) §

221.40, Criminal Sale of Marijuana in the Fourth

Degree, a class A misdemeanor; (i) § 265.01, Criminal

Possession of a Weapon in the Fourth Degree, a class A

misdemeanor; (j) § 265.06, Unlawful Possession of a

Weapon upon School Grounds, a violation; or were

charged pursuant to the following New York City

Administrative Code Sections: (a) § 10–131, Firearms;

2

McBean v. City of New York, 228 F.R.D. 487 (2005)
(b) § 10–133, Possession of Knives or Instruments; and (c) § 10–134 Prohibition on Sale of Certain Knives; or where charged pursuant to Vehicle and Traffic Law § 1192(4), Operating a Motor Vehicle while impaired by the use of a drug. Proposed McBean Stlmt. ¶ 2.

2

The female putative class representatives, however,

have apparently agreed to settle their claims of illegal

forced gynecological exams in exchange for additional

awards of $5,000–$10,000 under the terms of the

proposed settlement. (Proposed McBean Stlmt. ¶¶ 46,

51; P. Stlmt. Mem. 17 n. 2.)

On February 18, 2004, however, just prior to the conclusion of the settlement negotiations, putative class members Joel Ramos, Foster Thomas, Daniel Velazquez, and Kenneth Williams, represented by Emery, Celli, Brinckerhoff & Abady LLP, moved to intervene as of right in the case. The putative intervenor-plaintiffs claimed their interests would be adversely affected by various terms of the proposed settlement, including plaintiffs’ decision to narrow the class to exclude misdemeanor arrestees charged with narcotics or weapons-related offenses. In their Intervenor Class Action Complaint, the putative intervenor-plaintiffs purported to bring suit on behalf of a class of “all persons who have been or will be arraigned on misdemeanor or non-criminal offenses and then were or will be strip searched pursuant to City and DOC policy, practice, and custom” (Intervenor–P.Compl.¶ 21), restoring the broader strip search class proposed by the McBean plaintiffs in their October 2002 motion for class certification. The Intervenor Class Action Complaint did not purport, however, to bring claims on behalf of a class of female detainees subjected to forced gynecological exams, and plaintiffs’ decision not to pursue such class claims was apparently unobjectionable at the time to the intervenorplaintiffs.
Following further briefing on the proposed settlement and the motion to intervene, as well as two conferences with all parties, the Court granted the motion to intervene and directed plaintiffs to file a new, amended motion for certification of the narrower class defined in the proposed settlement. Intervenor-plaintiffs opposed the certification of the narrower class, and cross-moved for certification of the broader class and appointment of intervenor-plaintiffs as class representatives, as well as appointment of their counsel as class counsel. Consequently, the Court is now faced with competing motions for class certification and appointment of class counsel, which must be resolved before any further action can be taken on the proposed settlement. The Court turns first to plaintiffs’ motion for class certification, and concluding that it should be granted, denies intervenor-plaintiffs’ competing motion.

With the adequacy of plaintiffs and their counsel established, and no impairment to the rights of those excluded under the narrower class definition substantiated, intervenor-plaintiffs have provided no rationale for the Court to take the case out of the hands of the individuals and their chosen counsel who have initiated and prosecuted this action for the last three years.
DISCUSSION
I. Standard on Class Certification [1] To obtain class certification, plaintiffs must demonstrate that the class meets the *492 express requirements of Federal Rule of Civil Procedure 23(a), known as numerosity, commonality, typicality, and adequacy, and of one of the subsections of Rule 23(b). In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132–33 (2d Cir.2001). Plaintiffs must also show that the class meets the implicit threshold requirement of ascertainability. Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 135 (S.D.N.Y.2003). Plaintiffs have the burden of establishing that the class satisfies all requirements. Caridad v. Metro–N. Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). District courts must conduct a rigorous analysis of the Rule 23 requirements, which may require the court to probe behind the pleadings. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160–61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). However, courts are not required to make a preliminary inquiry into the merits of a case in order to determine whether it may be maintained as a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Caridad, 191 F.3d at 291 (2d Cir.1999). Where a court certifies a class, it must also appoint class counsel. Fed.R.Civ.P. 23(g)(1)(A).
Here, plaintiffs have moved for certification of their proposed class under Rule 23(b)(2) and (b)(3), while intervenor-plaintiffs seek certification only under Rule 23(b)(3). Although the Court must carefully examine each of the requirements antecedent to certification, intervenorplaintiffs oppose plaintiffs’ motion for class certification solely on their alleged failure to meet the adequacy requirement of Rule 23(a)(4). (Intervenor– P.Cert.Opp.Mem.3.) Not surprisingly, given the settlement posture of the parties, defendants have not opposed plaintiffs’ motions, but they do oppose those of intervenor-plaintiffs, asserting the unworkability of their proposed class definition and the inadequacy of the proposed class representatives and class counsel. (D.Cert.Opp.Mem.3.)
3

McBean v. City of New York, 228 F.R.D. 487 (2005)
II. Rule 23(a) Requirements Plaintiffs have requested that the Court certify a class of all pre-trial detainees who, during the class period of July 15, 1999, through July 22, 2002, were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were stripsearched in DOC jails. The proposed class definition is narrower than plaintiffs originally proposed, primarily in that it excludes from the class individuals arraigned on narcotics and weapons-related charges. This exclusion of putative class members forms the core of intervenorplaintiffs’ opposition to plaintiffs’ adequacy.
A. Ascertainability The requirement of ascertainability, though not expressly mentioned in Rule 23, is fundamental. Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476, 480–81, 2005 WL 659475, at *2 (S.D.N.Y.2005). The class that plaintiffs seek to certify must be readily identifiable so that the court can determine who is in the class, and thus, who is bound by the ruling. See Dunnigan, 214 F.R.D. at 135 (“[P]laintiffs must demonstrate the existence of an ‘aggrieved class’ [and] that the aggrieved class can be readily identified.”); People United for Children, Inc. v. City of New York, 214 F.R.D. 252, 256 (S.D.N.Y.2003) (“[C]ourts should ensure that the class definition is ‘precise, objective, and presently ascertainable.’ ”) (citation omitted). A class is ascertainable when defined by objective criteria that are administratively feasible, without a subjective determination. Dunnigan, 214 F.R.D. at 135; Fears v. Wilhelmina Model Agency, 02 Civ. 4911(HB), 2003 WL 21659373, at *2 (S.D.N.Y. July 15, 2003).
This requirement was not addressed by any of the parties with regard to plaintiffs’ proposed class, perhaps because it is clearly satisfied. The class members are readily identifiable as all those admitted to certain facilities, following arraignment on specific charges, and subjected to strip searches. In other words, the class is defined wholly in regard to objective criteria, and no subjective determination of any sort will be required to determine membership. Indeed, defendants have apparently already been able to identify and count putative class members, see infra Part II.B.
*493 B. Numerosity To satisfy the numerosity requirement of Rule 23(a), plaintiffs must show that joinder is “impracticable.” Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993). Numerosity is generally presumed when a class consists of forty or more members. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995).

Neither intervenor-plaintiffs nor defendants dispute the numerosity of plaintiffs’ proposed class. Defendants have acknowledged that there are 57,634 putative class members falling within the narrowed class proposed by plaintiffs. (Intervenor–P. Cert. Reply Mem. 7 n. 5.)
C. Commonality and Typicality [2] Rule 23(a) also requires that the action raise an issue of law or fact that is common to the class (commonality), see, e.g., Robinson v. Metro–North Commuter Railroad Co., 267 F.3d 147 (2d Cir.2001), and that “each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability” (typicality). Id. (citation omitted); see also In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992). The factual background of each named plaintiff’s claim need not be identical to that of all of the class members, In re Sumitomo Copper Litig., 182 F.R.D. 85, 94 (S.D.N.Y.1998), so long as the claims arise from the same events, and the legal arguments on liability are the same. Drexel, 960 F.2d at 291. Where plaintiffs can make this basic showing, the typicality requirement is generally satisfied, “irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux, 987 F.2d at 936–37.
Neither defendants nor intervenor-plaintiffs have disputed that plaintiffs’ proposed class satisfies the commonality and typicality requirements. Plaintiffs have identified legal and factual issues common to all proposed class members, e.g., whether defendants had a policy of stripsearching all newly-admitted pre-trial detainees charged with misdemeanors and lesser offenses without regard to reasonable suspicion, and whether plaintiffs were stripsearched pursuant to that policy. (P. Cert.Mem.12.) Each class member’s claim arises from the same events—the blanket application of the policy—and the alleged absence of reasonable suspicion at the time the searches were conducted supplies the legal theory of liability for each and every class member. Thus, the requirements of commonality and typicality are met.
D. Adequacy [3] Unlike the other requirements of Rule 23(a), intervenor-plaintiffs do challenge the adequacy of the named plaintiffs as class representatives. To determine whether a named plaintiff will be an adequate class representative, courts inquire whether: “1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000). Intervenor-plaintiffs challenge both the
4

McBean v. City of New York, 228 F.R.D. 487 (2005)
adequacy of the proposed class representatives and the competency of their counsel in a series of intertwined arguments, addressed in turn below.
1. Settlement Terms Intervenor-plaintiffs first challenge the adequacy of the named plaintiffs as class representatives because they allege these plaintiffs and their counsel “have compromised the claims of absent class members for personal gain” by negotiating disproportionate awards for themselves in exchange for less favorable settlement terms for the absent class members. (Intervenor– P.Cert.Opp.Mem.11.) Specifically, intervenor-plaintiffs allege that the award amounts for the class members are inadequate; that because the award amounts to absent class members differ only as to whether the individual was strip-searched more than once, the settlement fails to take into account the full range of damages suffered across the class; and that the named plaintiffs have improperly relinquished the claims of absent class members to pursue claims for unlawful post-intake searches. (Intervenor–P.Cert.Opp.Mem.11–14.) Although the proposed class settlement is not before the Court for *494 approval, given the need to first resolve the competing motions for class certification, intervenorplaintiffs contend that the terms of the negotiated settlement evidence the inability of plaintiffs and their counsel to adequately represent the proposed class’s interests. It is in light of these arguments that the Court examines the challenged provisions of the settlement, keeping in mind that a class action settlement must be “fair, reasonable, and adequate,” Fed.R.Civ.P. 23(e)(1)(C), but not with a view toward making any conclusive, or even conditional, findings about the settlement’s suitability. In other words, to the extent that the Court comments on the reasonableness or otherwise of certain terms of the proposed settlement, it does so only to the extent necessary to address intervenor-plaintiffs’ arguments that those terms on their face demonstrate the inadequacy of plaintiffs and their counsel to represent the class, and any comments made in that context are without prejudice to full examination of the fairness of the settlement at a later date.
[4] The challenged settlement terms do not appear to the Court to evidence antagonism to the interests of absent class members, rather than the reasonable outcomes of what is by definition a two-sided negotiation. First, the awards to absent class members—$750 for a single illegal strip search and $1000 for multiple strip searches—seem consistent with awards for similar class action claims in other cases in this Circuit, particularly taking into account the risk of much lower recoveries if cases were fully litigated. Indeed, in Shain I, the Second Circuit not only confirmed the unconstitutionality of the conduct alleged here, but also upheld the district court’s entry of nominal

damages in the amount of $1.00 after the jury found plaintiff had not suffered a compensable injury. Shain I, 273 F.3d at 67.
The settlement agreement counsel for intervenor-plaintiffs negotiated in Tyson v. City of New York, No. 97 Civ. 3762(JSM), a class action suit involving the rights of prearraignment detainees, provides for awards of $22,500 and higher for class members electing to submit to a detailed, individualized examination of the value of their claims. The base award, however, is just $250 for class members who elect not to pursue individualized damages. (Tyson Stlmt., Intervenor–P. Stlmt. Opp. Mem., Ex. 7.) It is not unreasonable for plaintiffs to negotiate on the assumption that class members might prefer a moderate amount in exchange for procedural ease and expedited payout. Nor are defendants getting off cheap, at least in comparison to the Tyson settlement: The total settlement fund in Tyson was capped at $50,000,000, including administrative costs and attorneys’ fees (Id. ¶ 23), a sum comparable to the liability of defendants here if the estimated tens of thousands of class members file claims. Finally, these award amounts were negotiated under the close supervision of Magistrate Judge Katz. See Co. of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323 (2d Cir.1990) (affirming fairness of settlement and citing with approval district judge’s assertion that presence of court-appointed mediator in the negotiating process “helped ensure that the proceedings were free of collusion or undue pressure”).
But intervenor-plaintiffs additionally object that the proposed $25,000 incentive awards to named plaintiffs are disproportionate, and therefore “demonstrate [p]laintiffs’ willingness to accept large payments for themselves in exchange (presumably) for agreeing to substantially smaller sums for absent class members in derogation of their fiduciary duties.” (Intervenor– P.Cert.Opp.Mem.11.) This argument is substantially undercut, however, to the extent that the awards negotiated for absent class members have been found adequate, thus undermining intervenor-plaintiffs’ argument that plaintiffs conceded too much in the negotiations in exchange for larger payments for themselves. Moreover, if (as intervenor-plaintiffs allege) the named plaintiffs have not demonstrated that they have undertaken sufficient risk or effort in prosecuting this litigation to justify incentive awards (Intervenor–P. Cert. Reply Mem. 9 n. 7), the Court could decline to approve the settlement on this basis. In Sheppard v. Consolidated Edison Co., No. 94 Civ. 0403(JG), 2002 WL 2003206 (E.D.N.Y. Aug.1, 2002), the district court rejected the parties’ first proposed settlement because, in the court’s opinion, the proposed incentive *495 awards for named plaintiffs were excessive. The parties renegotiated this aspect of the settlement, and made a renewed application to the court for approval, this time committing the final amount of incentive awards (within specified maximums)
5

McBean v. City of New York, 228 F.R.D. 487 (2005)
to the discretion of the court. The court, finding incentive awards were merited in the case, approved the settlement, and adjusted the incentive award amounts to what it considered to be appropriate levels. Sheppard, 2002 WL 2003206, at *5–*7. Plaintiffs, citing Sheppard, have indicated in their briefing a willingness to submit to the Court’s discretion in adjusting the amount of the proposed incentive awards. (P. Cert. Reply Mem. 4.) A term of the settlement left to the discretion of the Court by the parties, and which, in any event, may turn out to be perfectly reasonable as proposed, can hardly be characterized as evidence of named plaintiffs’ willingness to look after themselves at the expense of the balance of the class.
Second, intervenor-plaintiffs argue that by providing uniform awards to absent class members, which differ in amount only if the class member was subject to multiple strip searches, named plaintiffs have failed to make “any effort of any kind ... to recognize and compensate the varying level of injury suffered by absent class members.” (Intervenor–P.Stlmt.Opp.Mem.16.) More appropriate, intervenor-plaintiffs contend, would be something like the tiered compensation system of the Tyson settlement, briefly outlined above, under which class members could opt into an individualized determination of their claim, with amounts awarded increased by particular circumstances such as a “non-private search,” “menstruation at time of search,” and “abusive correction officer conduct” (Tyson Stlmt. ¶ 37), and even larger awards for class members demonstrating above average emotional distress. (Id. ¶ 51.) But although Tyson class members electing to engage in individual determination of their claims are potentially eligible for awards far in excess of the $750 or $1000 awards negotiated here, that eligibility comes at a substantial price, including, for the highest awards, releasing all medical, psychiatric, school and employment records, and submitting to a deposition and/or psychological examination by a court-appointed psychologist or psychiatrist. (Tyson Stlmt. ¶ 49.) As already stated above, it is not unreasonable to negotiate a settlement on the assumption that the class and its individual members would be equally well served by moderate but automatic payments requiring nothing more of the class member than submitting a claim. Moreover, a settlement such as that negotiated and approved in Tyson comes with significant administrative expenses, which likely will reduce the amount of money available to compensate class members. (Indeed, defendants have represented to the Court that, based on the City’s experience with the Tyson settlement, they would not agree to a similar settlement in this case.) The Court is inclined to agree that a settlement which is less procedurally complex would be more attractive to all involved, and ultimately more just. At a minimum, the Court does not find this aspect of the settlement in any way suggestive of bad faith on the part of named plaintiffs.

Third, intervenor-plaintiffs challenge the relinquishment of class members’ claims to post-intake searches, claiming plaintiffs’ counsel misunderstands the applicable law and characterizing the relinquishment of these claims as “forcing [class members] to accept a minimal recovery for unlawful intake searches and abandoning their right to recovery on other unlawful searches, or to attempt to navigate the court system and find a lawyer to investigate and represent them on an individual damages claim for all illegal searches undertaken by defendants.” (Intervenor– P.Stlmt.Opp.Mem.20–21.) The language of the proposed settlement does include a waiver of class members’ rights to “pursue, initiate, prosecute or commence any action or proceeding before any court, administrative agency, or other tribunal or to file any civil complaint with regard to any strip search at a DOC facility during the Class Period.” (Proposed McBean Stlmt. ¶ 20.) But the Court need not consider the propriety of such a waiver: Plaintiffs have explicitly disavowed any intention to relinquish the rights of those subject to post-intake searches. Although plaintiffs have not directly addressed the waiver language in their *496 briefing on these motion, they have stated that “[t]o the extent that the settlement agreement is vague in this area, [they] are willing to clarify the agreement” and that they will “ensure that the claims of individuals who were subject to an illegal strip search post-admission are not foreclosed by the settlement agreement, but rather left open for individual actions, or a class action should objectors’ counsel choose to commence one.” (P. Stlmt. Reply Mem. 16–17.)
Admittedly, plaintiffs represent that the award amounts were negotiated in light of counsel’s understanding that post-intake searches do not need to be justified by reasonable suspicion, and that therefore, plaintiffs would have difficulty convincing a jury that his or her damages “flow solely from the initial intake strip search, and not from subsequent strip searches or from the harshness of long term incarceration.” (P. Stlmt.Mem.13–14.) While intervenor-plaintiffs are certainly correct that limits apply to both pre-and post-admission searches, and that therefore not all post-intake searches are legal, see Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), it does not strike the Court as unreasonable or in way demonstrating plaintiffs’ inadequacy that their view of the proper award amounts has been shaped by the difficulty of proving damages where plaintiffs have been subjected to what may be a co-mingled set of legal and illegal official conduct.
Thus, there is no substance to intervenor-plaintiffs’ claims that plaintiffs have casually abandoned potentially valuable claims at the expense of absent class members, and any settlement in this case purporting to extinguish rights to pursue claims of illegal post-intake searches will not be approved. To prevent confusion, however, the Court will amend plaintiffs’ proposed class definition to
6

McBean v. City of New York, 228 F.R.D. 487 (2005)

“pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails pursuant to the standard new admission strip search procedure.”3

3

This amendment further benefits the ascertainability of

the class definition, discussed in Part II.A, by making it

clear that class members are individuals strip searched

in accordance with an admissions strip search policy,

without regard to subsequent strip searches conducted

pursuant to other policies, not challenged by plaintiffs,

but raised by intervenor-plaintiffs in their Amended

Complaint. See infra note 9.

2. Narrowing the Class Definition [5] Intervenor-plaintiffs next argue that plaintiffs and their counsel have inadequately represented the class’s interests in that they agreed to narrow the original class definition to exclude misdemeanor arrestees charged with weapons or narcotics-related offenses, thus “cut[ing] [those individuals] loose to fend for themselves” in exchange for settlement. (Intervenor–P.Cert.Opp.Mem.13.) Plaintiffs concede that the class for which they now request certification was narrowed because defendants perceive the law as unsettled with regard to individuals charged with narcotics and weapons-related offenses and are unwilling to settle the claims of such individuals. Plaintiffs contend, however, that narrowing the class permitted them to obtain a fair settlement on behalf of the class they now seek to certify, their only obligation. (P. Cert. Reply Mem. 4–5.) Those detained on narcotics or weapons charges remain free to pursue their claims in a separate action, or via the presence in this case of intervenor-plaintiffs charged on narcotics or weaponsrelated offenses.
Indeed, intervenor-plaintiffs cannot make the direct argument that narrowing the class definition shows that plaintiffs have interests antagonistic to interests of other members of the class. By definition, if plaintiffs’ motion is granted, the class as certified will not consist of any individuals charged with narcotics or weapon-related offenses, whose interests may very well differ from those of the named plaintiffs, but to whom plaintiffs will owe no responsibility. And as the Second Circuit has explicitly held, “the broad language of a complaint in a class action lawsuit does not vest in putative class members a right to be part of the class ultimately certified by the District Court.” In re Holocaust *497 Victim Assets Litig., 225 F.3d 191, 202 (2d Cir.2000). Therefore, plaintiffs and their counsel cannot be accused of retrenching on any obligation.

Instead, intervenor-plaintiffs appear to argue that dropping putative class members evidences bad faith on the part of plaintiffs, counsel, or both, and should give the Court pause as to whether plaintiffs and counsel have vigorously litigated this action, or are just interested in taking the easiest way out. This argument would have weight if there were no conceivable justification for plaintiffs’ decision to narrow the class aside from desiring a quick and easy settlement. But defendants are clearly entitled to argue that individuals charged with narcotics or weapons-related offenses are differently situated than other misdemeanor arrestees. The Second Circuit has held that the Fourth Amendment “precludes prison officials from performing ... cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or circumstances of the arrest.” Weber, 804 F.2d at 802 (emphasis added). Defendants would appear to have at least a colorable argument that while a blanket policy subjecting all misdemeanor arrestees to strip searches is constitutionally impermissible under Second Circuit precedent, searches of individuals charged with narcotics or weapons-related offenses performed under the policy were constitutional, because the nature of the charges gave rise to reasonable suspicion. See, e.g., Kennedy v. L.A. Police Dep’t, 901 F.2d 702 (9th Cir.1990) (finding blanket policy of subjecting all felony arrestees to visual body-cavity search unconstitutional, but going on to consider whether the particular circumstances of plaintiff’s arrest gave rise to reasonable suspicion because “a search, although not supportable under an institutional policy, is not per se unconstitutional”).
Intervenor-plaintiffs contend that this argument is foreclosed to defendants as a matter of law. It is indeed well-settled that reasonable suspicion must exist at the time the search is conducted, not supplied post hoc, Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), and intervenor-plaintiffs allege that “most, if not all, of the class members who were searched during intake at DOC facilities were searched by officers who did not know the nature of the charges against them and had already been searched earlier by the police and remained in custody since that search.” (Intervenor–P. Cert. Opp. Mem. 14 n. 8.) Although the facts as alleged in the complaint must be assumed to be true for purposes of class certification, the Court is not bound by this standard in evaluating the vigor with which plaintiffs have conducted this litigation. The facts alleged by intervenorplaintiffs would apparently be controverted. While defendants have conceded in their amicus submissions in the Shain litigation that each arrestee was searched pursuant to a mandatory and indiscriminate policy, they apparently have not conceded that facts (including the
7

McBean v. City of New York, 228 F.R.D. 487 (2005)
underlying charge) giving rise to reasonable suspicion were not known to the searching officers, or to officers on whom the searching officers might be entitled to rely, see United States v. Colon, 250 F.3d 130, 135–37 (2d. Cir.2001) (discussing the limits of the collective knowledge doctrine, under which in certain circumstances facts known to one officer may be imputed to a cooperating officer).
Without defeating commonality or lessening the predominance of the class-wide challenge to the policy itself, both of which are pre-requisites to certification, defendants would be entitled to offer evidence that reasonable suspicion existed at the time of particular searches as to certain individuals, and thus that the claims of those class members would be defeated. See, e.g., Mack v. Suffolk Co., 191 F.R.D. 16, 23 (D.Mass.2000) (“[D]ifferences [including the particular circumstances of arrest and offenses charged] between the proposed class members, while arguably relevant as defenses to liability, do not change the fact that this class action raises the same basic claim and shares common questions of law ... [i.e.,] that these searches were unconstitutional because, conducted pursuant to a blanket strip-search policy, they were not based on a reasonable *498 suspicion that the individuals searched were concealing weapons or contraband. Therefore, Plaintiff has satisfied the [commonality and typicality requirements] despite varying defenses to liability which may be raised regarding particular individuals.”) (emphasis added); Doe v. Calumet City, 754 F.Supp. 1211, 1220 & n. 22 (N.D.Ill.1990) (granting summary judgment in favor of class of female detainees indiscriminately strip-searched pursuant to a blanket policy, and noting that “if [defendant] believed that any specific searches or class of searches had a reasonable antecedent justification, [defendant] could have offered proof that the subjects of those searches should be excluded from the class, but it has failed to do that”).
Intervenor-plaintiffs rightly argue that defendants could object that reasonable suspicion existed as to each and every arrestee: Even where the charge itself did not give rise to reasonable suspicion, there may have been other circumstances particular to the arrestee which would have. But defendants, for whatever reason, have apparently elected not to contest the claims of any individual not arrested on narcotics and weapons-related charges. Whether or not defendants are correct that the claims of individuals charged with narcotics and weapons-related offenses will fail, their willingness to litigate those claims, which they perceive as providing them with unique defenses, provides plaintiffs and their counsel with a legitimate justification for seeking to settle the claims defendants apparently do not wish to litigate.
Indeed, it could as easily be argued that the claims of detainees arrested on narcotics or weapons charges are

sufficiently distinct that the same named plaintiffs or counsel should not represent a class consisting of detainees who were and who were not charged with such offenses. Plaintiffs’ decision to seek a quick and certain recovery on behalf of strip-searched detainees held on non-drug and non-weapons charges is in the interests of members of that class, if not of those charged with such offenses. Intervenor-plaintiffs’ plan for a larger class could be seen to be using the more certain claims of one subclass in an effort to leverage a settlement as to more contestable claims, at risk of greater delay and uncertainty for the non-drug, non-weapons subclass. It is by no means clear that this plan is superior to that of plaintiffs, or even permissible at all.
Moreover, it is not at all clear that the case law in this area is stable, even as to those individuals charged with nonweapons and non-narcotics offenses. The opinion in Shain was written over the dissent of Judge Cabranes, who would have applied the lesser standard of “reasonably related to legitimate penological objectives” from Turner, 482 U.S. at 89–90, 107 S.Ct. 2254, 96 L.Ed.2d 64, Shain, 273 F.3d at 70 (Cabranes, J., dissenting), while Judge Katzmann concurred only because he felt bound by Second Circuit precedents which left “no choice but to apply the ‘reasonable suspicion’ standard.” Id. at 69–70 (Katzmann, J., concurring). A quick resolution, while the law is in their favor, thus may be very much in the interests of plaintiffs’ proposed class. Accordingly, the Court is not persuaded that plaintiffs’ decision to narrow the class in order to obtain relief for a subset of the original plaintiffs, while leaving unimpaired the rights of those excluded to pursue their claims separately, in any way demonstrates their inadequacy or that of counsel.
3. Named Representatives Intervenor-plaintiffs further object that not all of the twenty named plaintiffs are members of the narrowed class, an argument to which plaintiffs make no response in their reply briefing. To be sure, named plaintiffs must be members of the class they seek to represent. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (“[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.”) Between the two consolidated actions, there are a total of twenty named plaintiffs, but only eight submitted declarations in support of the October 2002 motion for class certification. Intervenor-plaintiffs claim that of these eight plaintiffs, only four appear to have been arraigned on charges not related to weapons or narcotics. (Intervenor–P.Cert.Opp.Mem.14–15.) The Court’s examination of these declarations, *499 and the McBean and Cence complaints, indicates that the four identified by intervenor-plaintiffs are indeed the only proposed class representatives for whom information as to the particular
8

McBean v. City of New York, 228 F.R.D. 487 (2005)

nature of the misdemeanor charge has been provided: Kadian McBean (assault), Toby Cohen (civil contempt), Cindia Cruz (assault), and Lisa Gregorio (violation of probation).4 A fifth named plaintiff, Rhonda Jones, alleges the nature of her charge—assault in the third degree—on information and belief only, insufficient to establish her membership in the proposed class. While intervenorplaintiffs’ characterization of the declarations is thus correct, there are four named plaintiffs who are also clearly class members, and whose adequacy is not otherwise challenged on any grounds apart from those already addressed above. If more than these four named plaintiffs seek to be appointed class representatives, they must demonstrate their adequacy as members of the class. But for now it is sufficient that there are at least four named plaintiffs who are members of the class and can thus be appointed as class representatives.5

4

Plaintiffs’ Second Amended Complaint identified Lisa

Gregorio as bringing suit individually, but she is now

listed as a named plaintiff in the proposed settlement.

5

Although the possibility that not all presently-named

representatives are class members does not bar

certification of the class, because there are at least some

named plaintiffs who are class members, it does give

the Court considerable pause in looking ahead to the

potential approval of the proposed class settlement. The

Court will require reassurances that the settlement was

negotiated with the participation and approval of bona

fide class members, and not controlled by individuals

now excluded from the class, who will not be entitled

to the benefits they assumed they were negotiating on

their own behalf, and who indeed would have interests

antagonistic to the absent class members.

4. Procedural Missteps of Plaintiffs’ Counsel [6] Finally, intervenor-plaintiffs argue that plaintiffs’ counsel are inadequate because they have made a series of procedural missteps impairing or undermining the interests of the class, and thus that they are not “qualified, experienced and able to conduct the litigation.”6 First, intervenor-plaintiffs challenge the decision of plaintiffs’ counsel not to have plaintiffs join or intervene in a related case, Wilson v. City of New York, No. 02 Civ. 465(NRB) (S.D.N.Y.), which they filed on behalf of Marsha Wilson in January 2002. Such action would have preserved the claims of putative class members subject to DOC’s policy from January 1999. Instead, because the instant action was not filed until July 2002, claims arising prior to July 1999 are excluded by the statute of limitations and individuals with such claims are not included within the proposed class definition. The Wilson case eventually settled for $70,000. (D.Cert.Opp.Mem.11.)

6

To the extent that intervenor-plaintiffs also challenge

the adequacy of plaintiffs’ counsel as it relates to the

precise terms of the negotiated settlement, these

arguments have been addressed above.

But plaintiffs’ request to have McBean filed as a case related to Wilson was denied by Judge Naomi R. Buchwald (to whom Wilson was assigned), perhaps deterring plaintiffs from seeking to have those cases consolidated. Moreover, while certain of Wilson’s individual claims in that case overlap with the Fourth Amendment claims of the proposed class of plaintiffs here, her complaint as a whole was much more expansive, pressing § 1983 claims for false arrest and excessive force, as well as a host of equivalent state law claims. See Wilson v. City of New York, No. 02 Civ. 465(NRB) (S.D.N.Y.) (Complaint filed Jan. 18, 2002). The Court declines to fault counsel for bringing a separate action primarily challenging the strip-search policy, rather than muddying and prolonging the individual case of another client, to whom they also owed a responsibility. While there is certainly some cost to the would-be members of the class with claims falling between January 1999 and June 1999, the Court cannot see how counsel is obligated to these individuals, or how the so-called “delay” in filing this action demonstrates their inadequacy to vigorously litigate the claims of those on whose behalf they have sued. Intervenor-plaintiffs cite no authority for the proposition that counsel preparing a class action suit are obliged to intervene in *500 any pending action raising a similar individual claim, so as to expand the class they seek to represent to include class members who would otherwise be time-barred. Nor do intervenor-plaintiffs present any evidence that plaintiffs or their counsel unreasonably delayed bringing their action.
[7] Second, intervenor-plaintiffs fault plaintiffs’ counsel for what they claim are a series of procedural missteps made in the instant litigation: (1) improperly seeking approval of their proposed class settlement without providing proper notice to the class, and (2) moving for class certification under both Rule 23(b)(2) and (b)(3), even though, intervenor-plaintiffs allege, injunctive relief is no longer appropriate because DOC changed its stripsearch policy shortly after the filing of the instant case.7 (Intervenor–P.Cert.Opp.Mem.15–16.)

7

But see infra note 9 (noting that intervenor-plaintiffs

have amended their complaint to allege an ongoing

practice of illegal strip searches at intake in DOC

facilities).

These arguments are thoroughly unpersuasive. The present procedural posture of this case is admittedly
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McBean v. City of New York, 228 F.R.D. 487 (2005)
complex, but this owes more to the competing motions for class certification, than to any incompetence on the part of plaintiffs’ counsel. While a settlement negotiated prior to formal class certification is subject to a “higher degree of scrutiny in assessing its fairness,” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001), such settlements are not per se impermissible. Therefore, there is nothing improper about the parties having agreed to a resolution of the case, while plaintiffs’ motion for class certification was sub judice (stayed at the request of both parties while settlement negotiations were under way) and accordingly no notice had yet been provided to the class about the pendency of the action, let alone the specific terms of the settlement agreement. Moreover, approval of a class settlement is generally a multi-step procedure, whereby a preliminary assessment of the settlement’s fairness (and, if formal class certification has not yet occurred, approval of the settlement class) is made, following which the court directs notice to class members, and sets a date for a final fairness hearing on the proposed settlement. Manual for Complex Litigation, Fourth § 21.632. Therefore, plaintiffs have not committed any error as notice was not yet required, either as to certification or settlement. The Court will still have an opportunity to ensure that whatever notice is directed includes all required information.
Nor has plaintiffs’ counsel erred because it continues to seek certification under Rule 23(b)(2) and (b)(3), even though the proposed settlement no longer contains any injunctive relief, and DOC’s policy change in July 2002 shortly after the filing of the instant action arguably renders injunctive relief moot. Plaintiffs’ counsel has not moved for class certification for settlement purposes only. Although the proposed settlement as it currently stands contains no injunctive relief related to the strip search claim, should that settlement fail for any reason, there would be no bar to plaintiffs seeking class-wide declaratory or injunctive relief in the subsequent litigation, whether or not such relief is ultimately merited on the facts as they now stand. Plaintiffs’ briefing in support of their motion for class certification under Rule 23(b)(2) demonstrates a thorough familiarity with the requirements of that rule, and nothing prevents plaintiffs from arguing in the alternative that they meet more than one of the categories of Rule 23(b). Although the Court concludes that certification under Rule 23(b)(3) is more appropriate than under Rule 23(b)(2), see infra Part III, counsel are not to be faulted because they have overreached in the relief they seek. Cf. Spinner v. City of New York, No. 01 Civ. 2715(CPS), 2003 WL 23648356, at *5–*6 (E.D.N.Y. Oct.10, 2003) (putative class counsel’s request for injunctive relief, even after such relief had been substantially granted by another court, was neither a bar to a finding of their adequacy or to certification under Rule 23(b)(2)).

5. Adequacy of Class Representatives and Counsel Having rejected intervenor-plaintiffs’ objections, the Court must nonetheless make an independent assessment of the adequacy of the class representatives and their counsel. Pending an application by the plaintiffs to *501 restore all of the originally named plaintiffs, the Court finds that Kadian McBean, Toby Cohen, Cindia Cruz, and Lisa Gregario are clearly adequate class representatives in that they are members of the proposed class, with claims identical to the remainder of the class, and have no demonstrated interests antagonistic to the interests of absent class members. Moreover, contrary to intervenorplaintiffs’ assertions, the Court’s consideration of plaintiffs’ counsel’s credentials leads to the conclusion that they are qualified, experienced, and able to conduct class action litigation, and in fact have done so on at least three other occasions. Spinner v. City of New York, No. 01 Civ. 2715(CPS) (E.D.N.Y.) (Cardinale, Hueston & Marinelli and Robert Isseks); Dodge v. County of Orange, No. 02 Civ. 769(CM) (S.D.N.Y.) (Robert Isseks); Maneely v. City of Newburgh, 01 Civ. 2600(CLB) (S.D.N.Y.) (Robert Isseks). Although the class in Spinner has now been decertified, and the claims of individual plaintiffs settled (Spinner Stlmt. and Discontinuance, Intervenor–P. Cert. Reply Mem., Ex. 1), a settlement agreement in Maneely has been preliminarily approved by the district court. (Letter from Richard J. Cardinale to the Court, dated April 7, 2005, enclosing Maneely Order for Preliminary Approval of Stlmt.).
Accordingly, the Court finds that plaintiffs have satisfied their burden of establishing that the proposed class and its representatives meet the ascertainability, numerosity, commonality, typicality, and adequacy requirements of Rule 23(a).
III. Rule 23(b) Requirements In addition to meeting the requirements of Rule 23(a), a class action must also satisfy one of the requirements of Rule 23(b). Plaintiffs have moved for certification under both Rule 23(b)(2) and Rule 23(b)(3), but the Court finds that the class is most appropriately certified as a Rule 23(b)(3) class.
A class may be certified under Rule 23(b)(2) where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Plaintiffs’ proposed class would ordinarily fall well within the ambit of Rule 23(b)(2) in that defendants have allegedly applied a blanket strip search policy uniformly across the class, and because their Second Amended Complaint sought “an injunction ceasing all improper strip searches and nonconcensual gynecological examinations at New York City jails.”
10

McBean v. City of New York, 228 F.R.D. 487 (2005)
Second Am. Compl. ¶ 56. Indeed, where plaintiffs seek institutional reform in the form of injunctive relief, certification under Rule 23(b)(2) is usually appropriate. See In re Methy Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 209 F.R.D. 323, 341 (S.D.N.Y.2002).
[8] But where non-incidental damages are sought in addition to injunctive relief, Rule 23(b)(2) certification is only permissible where “the positive weight or value [to the plaintiffs] of the injunctive or declaratory relief sought is predominant.” Robinson, 267 F.3d at 164 (citation omitted). In assessing whether injunctive or declaratory relief predominates, “a district court should, at a minimum, satisfy itself of the following: (1) even in the absence of possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. Clearly, reasonable plaintiffs would still bring this suit even if the possibility of monetary recovery was precluded given the seriousness of the constitutional violations alleged. See Bell, 441 U.S. at 576–77, 99 S.Ct. 1861 (“In my view the [visual] body cavity searches ... represent one of the most grievous offenses against personal dignity and common decency.”) (Marshall, J., dissenting).
However, it does not appear that the injunctive relief sought will be “reasonably necessary and appropriate,” even if plaintiffs do not settle and ultimately succeed at trial on the merits. Plaintiffs’ proposed class is no longer defined in any way to include a subclass of female detainees subjected to forced gynecological exams, and plaintiffs have stated that they no longer plan to pursue class *502 claims related to forced exams. (P. Stlmt.Mem.14.) Although the proposed settlement will require defendants to provide detainees with “written patient information” advising them of the gynecological services offered as part of the intake medical exam and that “they have a right to refuse [such services], and that if they refuse, there will be no retaliation” (Proposed McBean Stlmt. ¶ 50), plaintiffs’ abandonment of class claims related to forced gynecological exams moots this aspect of the requested injunctive relief, at least for plaintiffs’ class.8 As to enjoining defendants from “all improper strip searches,” plaintiffs have clarified that this lawsuit concerns all improper intake strip searches. Since July 22, 2002, shortly after the instant action was filed, DOC’s “new admission search procedures” provide that “post arraignment detainee inmates incarcerated for Misdemeanor and/or Violation Offenses shall not be made the subject of a strip search during the new admission process unless there is reasonable suspicion that the inmate is in possession of contraband.” (Operations Order 08/02, Part II.) It does not appear from the facts now known to the Court that injunctive relief would be “both reasonably necessary and appropriate” to

prevent the alleged constitutional violations from recurring. Therefore, although certification under Rule 23(b)(2) may have been appropriate before DOC policy change, injunctive relief can no longer be said to predominate the relief requested such that certification under Rule 23(b)(2) is merited.9

8

As already noted, the proposed settlement agreement

does settle the individual claims of female class

representatives subjected to gynecological exams, and

extinguishes their rights to pursue these claims. But it

leaves undisturbed the rights of the absent class

members to pursue these claims via other avenues,

including perhaps intervenor-plaintiffs’ Amended

Complaint, see infra note 10.

9

The Amended Complaint filed by intervenor-plaintiffs

on April 7, 2005, renews allegations that defendants are

implementing a blanket strip search policy without

regard to individualized, reasonable suspicion.

Intervenor-plaintiffs make these allegations in regard to

strip searches conducted at intake, as well as those

conducted subsequently. Thus the Amended Complaint

contravenes the facts of the case as presented by all

parties to date, i.e., that a policy change of July 2002

effectively ended the alleged constitutional violations at

least with regard to intake strip searches. To the extent

that these renewed allegations make injunctive relief

once more “appropriate” and possibly even “reasonably

necessary” to address the claims of plaintiffs and their

proposed class, certification under both Rule 23(b)(2)

and (b)(3), see below, might be merited. Nonetheless,

the Court finds that certification under Rule 23(b)(3) is

more appropriate, both in light of the conflicting factual

“record” as it now stands developed, which leaves the

Court at a loss as to evaluating the necessity or

appropriateness of injunctive relief, and because Rule

23(b)(3) provides enhanced protection to class

members by mandating notice and permitting opt-outs,

protections the Court finds particularly important in the

instant case given that class certification is taking place

close in time to an anticipated settlement of the class

claims.

[9] Certification under Rule 23(b)(3), however, is appropriate. Rule 23(b)(3) provides for certification where “the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Plaintiffs in this action are unified by a common legal theory (DOC’s blanket policy subjecting all post-arraignment misdemeanor arrestees to intake strip searches was unconstitutional) and by common facts (each was allegedly subjected to one or more strip searches in accordance with this policy). As discussed above in connection with intervenor-plaintiffs’
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McBean v. City of New York, 228 F.R.D. 487 (2005)
objection to narrowing the class, the claims may be defended against where it can be shown that reasonable suspicion existed at the time particular searches were conducted. But as the cases cited above also demonstrate, these individual defenses do not preclude certification provided they do not predominate. “As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [a defense] will not automatically foreclose class certification under Rule 23(b)(3).” In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d at 136. On occasion courts have declined to certify broad classes of individuals subject to blanket strip search policies because of the role the particular circumstances of each search might play, *503 whether as to liability, class membership, or individual damages claims, see, e.g., Maneely v. City of Newburgh, 208 F.R.D. 69, 78–79 (S.D.N.Y.2002) (collecting cases and ultimately granting only partial class certification as to the issue of the existence of a policy of strip searching without regard to reasonable suspicion, leaving it up to class members to bring individual suits to adjudicate whether their own rights had been violated.) But here, with a class narrowed to only those plaintiffs arrested on non-narcotics and weapons-related offenses, the field of individual defenses as to liability available to defendants is considerably constrained. Nor is class membership defined with respect to the existence of reasonable suspicion, and thus, no evidentiary hearings will be required to determine class membership in the first instance. Thus the predominance of the central legal and factual issues common to all class members is in no way threatened.
A class action is also the most efficient and superior means through which to resolve these claims, where the class size is estimated at over 55,000 individuals. Although the assumed socioeconomic status of the proposed class members—misdemeanor arrestees remanded for detention for inability to post bail—is likely to preclude a significant portion of the class from burdening the courts with individual claims, this, too, argues in favor of class action treatment to protect the rights of class members unable to litigate their individual claims. See Labbate–D’Alauro v. GC Services Ltd. P’ship, 168 F.R.D. 451, 458 (E.D.N.Y.1996) (“It is appropriate for the court [in examining Rule 23(b)(3) superiority] to consider the inability of the poor or uninformed to enforce their rights and the improbability that large numbers of class members would possess the initiative to litigate individually.”) (internal quotation marks omitted). The Court does not understand any party to this litigation to contest the appropriateness of certifying plaintiffs’ proposed class under Rule 23(b)(3) and is, at any event, independently satisfied that certification under this subsection is warranted.
The class as proposed by plaintiffs meets the requirements of Rule 23(a) and satisfies one of the categories of Rule

23(b), and plaintiffs have identified at least four individuals qualified to serve as class representatives. Ordinarily, no more would be required to grant plaintiffs’ motion for certification. Intervenor-plaintiffs, however, have not only objected to plaintiffs’ motion, but have also cross-moved to certify a broader class of plaintiffs (“all pre-trial detainees who were arraigned on non-felony charges and thereafter strip searched pursuant to City and DOC policy, practice, and custom from July 15, 1999 through the date the policy ceased”), represented by intervenor-plaintiffs and their counsel. (Intervenor– P.Cert.Opp.Mem.3, 17.) Given that plaintiffs’ proposed class falls entirely within that proposed by intervenorplaintiffs, the Court cannot grant plaintiffs’ motion without defeating that of intervenor-plaintiffs.
The Court finds this to be the appropriate result. Intervenor-plaintiffs entered the case on the theory that plaintiffs and plaintiffs’ counsel were inadequate representatives, and that intervention was required to protect their interests, which they believed would be adversely affected by a settlement in the case. But as discussed above, intervenor-plaintiffs have failed to substantiate their concerns about plaintiffs’ adequacy to represent the interests of the narrowed class. To the extent that individual intervenor-plaintiffs continue to be concerned about adequacy in spite of the Court’s findings, they may opt out of the class and any proposed settlement, and, even without opting out of the settlement, they may continue to press their individual claims unrelated to intake strip searches and even seek class certification as to those claims.10 Short of that, they are still *504 entitled to object to the terms of the proposed settlement, if and when that settlement again comes before this Court for approval.

10

As noted above, see supra note 9, intervenor-plaintiffs

have filed an Amended Intervenor Complaint. This

complaint renews plaintiffs’ original allegations on

behalf of all misdemeanor detainees as to ongoing

illegal intake strip searches and forced gynecological

exams (the latter of which were never before pursued

by the intervenor-plaintiffs) and makes additional

allegations as to illegal post-intake strip searches.

(Intervenor–P.Am.Compl.¶¶ 59, 69.) The Court’s

disposition of the present certification motions,

certifying a class for purposes of litigating class claims

of illegal searches at the time of admission, in no way

directly affects intervenor-plaintiffs’ ability to pursue

claims of illegal, post-intake strip searches or forced

gynecological exams on behalf of themselves or any

class of misdemeanor arrestees for which they seek

certification at some later date. To the extent that a

proposed settlement would relinquish any such claims

it will be rejected by this Court. But the Court defers

for another day whether claims of illegal, post-intake

strip searches would impermissibly enlarge the scope of

the litigation. See Hartley Pen Co. v. Lindy Pen Co.,

Inc., 16 F.R.D. 141, 153 (S.D.Cal.1954) (“[An

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McBean v. City of New York, 228 F.R.D. 487 (2005)
intervenor] cannot change the issues framed between the original parties, and must join subject to the proceedings that occurred prior to his intervention; he cannot unring the bell.”).

As to the intervenor-plaintiffs who would now fall outside of the narrowed class, they have not demonstrated any way in which certification of the narrower class impairs their rights or interests.11 By virtue of their status as intervenors, they remain litigants before this Court, free to bring claims on behalf of themselves or as proposed class representatives, and to seek class certification as to the classes and claims of their choosing. Intervenor-plaintiffs’ broader class may or may not have met the requirements of Rule 23(a) and (b) for certification. Regardless, the Court is unpersuaded of the need to displace the plaintiffs who initiated this suit, carried it forward for over two years, and participated in extensive settlement negotiations, solely on the basis of a litigation strategy intervenor-plaintiffs find unpalatable, but which they have not demonstrated impairs the rights of the class to adequate representation or the rights of those now excluded from the narrowed class.

11

Of the four original intervenor-plaintiffs, only one,

Daniel Velazquez, would appear to fall outside the

narrowed class based on his arraignment on charges for

the criminal sale of marijuana in the fourth degree (a

class A misdemeanor) and unlawful possession of

marijuana (a violation). (Intervenor–P.Am.Compl.¶

14.) Intervenor-plaintiffs amended complaint, however,

adds five more named plaintiffs, and it appears that

some of these additional named plaintiffs may also fall

outside of the narrowed class.

CONCLUSION
Plaintiffs have demonstrated that their proposed class and four of its proposed representatives satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3). Accordingly, plaintiffs’ motion for class certification is hereby granted, and intervenor-plaintiffs’ motion is denied. Kadian McBean, Toby Cohen, Cindia Cruz, and Lisa Gregario are appointed as class representatives, although other named plaintiffs may apply to the court to be appointed class representatives upon a showing of their class membership. The class certified, as proposed by plaintiffs and amended herein, comprises “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment,

were strip-searched in DOC jails pursuant to the standard new admission strip search procedure.” The “certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants” are defined to exclude those offenses catalogued in note 1 supra.
The Court understands the applications of intervenorplaintiffs for appointment as class representatives and their counsel as class counsel to be contingent on certification of their proposed class, and so those motions are denied as moot. Therefore, Cardinale, Hueston & Marinelli and Robert N. Isseks are the sole applicants for appointment as class counsel of the class now certified. Having already made extensive findings under Rule 23(a)(4) as to their ability to adequately and fairly represent the interests of the class, and noting in accordance with Rule 23(g)(1)(C) their long history with this case and their experience with other class actions, the Court grants their application and appoints Cardinale Hueston & Marinelli and Robert N. Isseks as counsel for the class.
Under Rule 23(c)(2)(B), the Court must “direct to class members the best notice practicable under the circumstances” for any class certified under Rule 23(b)(3), but the timing of that notice is committed to its discretion. Although the plaintiffs have not requested certification of the class for settlement *505 purposes only, it is expected that the parties will shortly renew their application for preliminary approval of the proposed settlement, and assuming approval is forthcoming, notice of the proposed settlement will then be required under Rule 23(e). In the interests of efficiency and providing meaningful notice to class members, the Court defers directing notice until after it makes a preliminary assessment of the settlement, in anticipation that a combined notice of certification and proposed settlement, satisfying the heightened requirements of Rule 23(c)(2), may be possible. See In re General Motors Corp. Pick– Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 786 (3d Cir.1995) (“Since the plaintiff is offered the opportunity to opt-out of the [conditional, settlement] class simultaneously with the opportunity to accept or reject the settlement offer, which is supposed to be accompanied by all information on settlement, the plaintiff knows exactly what result he or she sacrifices when opting out.”).12 In order to avoid undue delay in providing notification, however, the parties are directed to make a renewed application for preliminary approval of the proposed settlement no later than May 15, 2005. In the event no application for preliminary approval is made by that date, the Court will direct immediate notice in accordance with Rule 23(c)(2).

12

Where a court certifies a class narrowed from the one

proposed in the Complaint, it may be appropriate for

the Court to direct notice to those now excluded from

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McBean v. City of New York, 228 F.R.D. 487 (2005)
the class, because the statute of limitations will start to run again for those individuals, and they may have relied on the class complaint. Manual on Complex Litigation, Fourth § 21.311. Here, however, the claims of those excluded from the class now certified are still preserved by the presence of similarly-situated intervenor-plaintiffs in this suit. The Court has not foreclosed the possibility that these intervenor-plaintiffs may bring a class certification motion on behalf of all those excluded by the Court’s certification of the narrower class. Accordingly, no notice is required at this time to protect their rights.

SO ORDERED.
Parallel Citations 62 Fed.R.Serv.3d 62
	  

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