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1 Mark E. Merin (State Bar No. 043849) Joshua Kaizuka (State Bar No. 212195)
2 LAW OFFICES OF MARK E. MERIN 2001 P Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 E-Mail: mark@markmerin.com
5 Andrew C. Schwartz (State Bar No. 064578)
6 CASPER, MEADOWS, SCHWARTZ & COOK A Professional Corporation
7 California Plaza 2121 North California Blvd., Suite 1020
8 Walnut Creek, California 94596 Telephone: (925) 947-1147
9 Facsimile: (925) 947-1131 E-Mail: Schwartz@cmslaw.com
10 Karen L. Snell (State Bar No. 100266)
11 Attorney at Law 102 Buena Vista Terrace
12 San Francisco, CA 94117 Telephone: (415) 225-7592
13 Facsimile: (415) 487-0748 E-Mail: ksnell@clarencedyer.com
14 Attorneys for Plaintiff
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16

IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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19 KEVIN M. SCHILLING, on behalf of himself Case No.

and all those similarly situated,

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Plaintiffs, 21

CLASS ACTION COMPLAINT

vs.

DEMAND FOR JURY TRIAL

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TRANSCOR AMERICA, LLC, SGT. JOHN

23 SMITH, OFFICER BLANDEN, and DOES

1 through 100,

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Defendants.

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26 PLAINTIFF COMES BEFORE THIS HONORABLE COURT AND ALLEGES:

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

\ \ \
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1

INTRODUCTION

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1. This is an action for declarato ry and injunctive relief, damages, and

3 punitive damages against TRANSCOR AM ERICA, LLC, SGT. JOHN SMITH,
4 OFFICER BLANDEN and DOES 1 THROUGH 100 (persons sued herein by their 5 fictitious names) for violations of plainti ff’s constitutional rights and those of other
similarly situated persons. 6
2. In this complaint, plaintiff all eges that TRANSCOR AMERICA, LLC’s 7
official policy, practice, or custom of transporting pretri al detainees and prisoners in 8
conditions that amount to cruel and unusual punishment violated and violates the 9 rights of plaintiff, and each of those persons similarly situated, secured by the Fourth,
10 Eighth and Fourteenth Amendments to the U.S. Constitution and entitles plaintiff, and

11 each of those similarly situated, to reco ver damages and attorneys’ fees under the

12 Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988). TRANSCOR AMERICA, LLC’s

13 policies, practices or customs include but are not limited to transporting pretrial

14 detainees and prisoners in small metal cages in which a person can neither stand up

15 nor lie down for more than 24 hours at a time while the person is handcuffed, chained,

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and in shackles, and failing to provide pretrial detainees and prisoners with adequate food, fluids, exercise, hygiene, and medical care.
3. Because TRANSCOR AMERICA, LLC’s official policy, practice, or custom is to transport pretrial detainees and prisoners in conditions that amount to unlawful detention, excessive force, and cruel and unusual punishment, there is a likelihood of future injuries to pretrial detainees and prisoners including members of the plaintiff class. Accordingl y, plaintiff seeks an order declaring unlawful TRANSCOR AMERICA, LLC’s policy, practice or custom of transporting pretrial detainees under the conditions described above and enjoining TRAN SCOR AMERICA, LLC from engaging in this conduct in the future.
4. Plaintiff includes claims for damages and attorneys’ fees under California state law against TRANSCOR AMERICA, LLC for violation of the Unruh Civil Rights Act (California Civil Code § 52.1(b)) pursuant to which plaintiff is, and each of those persons similarly situated in the subc lass of pretrial detainees and prisoners

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1 transported by defendants in Calif ornia is, entitled to recover a minimum of $4,000 for

2 each violation of rights secur ed to them by the constituti on or laws of the state of

3 California and the constitution or laws of the United States and attorneys’ fees

4 (California Civil Code § 52.1(h)).

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5. Plaintiff includes claims for dam ages and attorneys’ fees under the

6 Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988) against all defendants for their violation of his Fourth and Fourteenth Amendment right to be free from the use of
7 excessive force, and the right to be provided with adequate medical care.
8 6. Finally, plaintiff includes a clai m for damages and attorneys’ fees under
9 the Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988) against TRANSCOR
10 AMERICA, LLC and DOES 1-10 fo r its failure to adequately supervise SGT. SMITH,
11 OFFICER BLANDEN, and DOES 11 through 100.

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JURISDICTION

6. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the 14
Fourth, Eighth and Fourteenth Amendments to the United States Constitution. 15
Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the

16 aforementioned statutory and constitutional provisions.

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7. The court has supplemental jurisdic tion over plaintiff’s state claims under

18 28 U.S.C. § 1367(a).

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8. The amount in controversy exc eeds $10,000, excluding interest and

20 costs.

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PARTIES

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9. Plaintiff KEVIN M. SCHILLING is a resident of Vallejo, California. Like all

23 those similarly situated, plaintiff is and at a ll material times herein was a citizen of the

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United States who was arrested in one juri sdiction for an offense allegedly committed in another jurisdiction and was transport ed from one detention facility to another detention facility by defendants.
10. Defendant TRANSCOR AMERICA, LLC is and at all material times referred to herein was a for-profit Tenness ee corporation licensed to do business in

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1 California whose business entails the transportation of pretrial detainees and prisoners

2 throughout the United States on behalf of federal, state, and local governments.

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11. Defendant SGT. JOHN SMITH is an agent and/or employee of defendant

4 TRANSCOR AMERICA, LLC.

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12. Defendant OFFICER BLANDEN is an agent and/or employee of

6 Defendant TRANSCOR AMERICA, LLC.
13. Plaintiff is informed and belie ves and thereon alleges that defendants 7
sued herein by their fict itious names, DOES 1 through 100, are agents and/or 8
employees of defendant TRANSCOR AMERICA, LLC. Plaintiff is not currently aware 9
of the true names and identit ies of those sued herein as DOES 1 through 100, but will
10 amend his complaint to include such persons ’ real names once said names are made

11 available to him.

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14. At all material times menti oned herein, each of the defendants was

13 acting under the color of law, to wit, under co lor of statutes, ordinances, regulations,

14 policies, customs and usages of the United States and its States, including but not

15 limited to the State of California.

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15. Class action plaintiffs are all those similarly situated pretrial detainees

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and prisoners who were transported by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to remain in the tr ansport van for more than 24 hours, within the two years preceding the filing of this Complaint and the date this matter is resolved.
16. For purposes of the California Unruh Act Claim, class action plaintiffs are all those similarly situated pretrial detainees and prisoners who were transported in the State of California by TRAN SCOR AMERICA, LLC, its agent s and/or employees, and forced to remain in the transport van fo r more than 24 hours, within the two years preceding the filing of this Complaint and the date this matter is resolved.
FACTS 18. In or about early September, 2006, plaintiff KEVIN M. SCHILLING was arrested at his home in Vallejo, California on a no-bail warrant issued by a court in Las Vegas, Nevada. Plaintiff was booked into a det ention facility in Fair field, California,

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1 where he remained for several days.

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19. On or about September 22, 2006, plaintiff was picked up at the Fairfield

3 Detention facility by agents and/or employees of defend ant TRANSCOR AMERICA,

4 LLC. Before boarding the transport van, plai ntiff was strip searched. He was then
5 handcuffed, a restraint was applied that se cured his hands to his waist, and he was
6 shackled. After boarding the transport van, pl aintiff was seated on a metal bench in a small, locked metal cage in which it was impossible for him to stand up or lie down.
7 20. For the next several days, plaint iff remained in the transport van,
8 restrained as described above, while t he van meandered around California -- from
9 Fairfield through counties within the Northern District of the United States District
10 Court, to Fresno and then back, once agai n through counties within the Northern
11 District of the United States District Cour t, to Fairfield – picking up and dropping off
12 pretrial detainees and/or prisoners.

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21. During his time in the transport v an, plaintiff was provided with only two

14 meals a day, which consisted of a fast food sandwich or hambur ger and a cup of

15 water. Plaintiff was not permitted to lie dow n or stand up or shower or shave or brush

16 his teeth or change his clot hes. He was forced to use the on-board toilet at the

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defendants’ convenience. Eventually, it backed up and smelled bad. But for the steps from his cage to the toilet and back, he was allowed no physical activity.
22. When, after approximately four da ys of traveling in these conditions, plaintiff realized that t he TRANSCOR AMERICA, LLC transport van was headed back to Fairfield, he demanded to talk to the wa rden. In response, and while he was still detained as described above, defendant s SGT. JOHN SMITH and OFFICER BLANDEN grabbed him and sprayed pepper spray in his face. While plaintiff was still unable to see, SGT. JOHN SMITH purposely walked him into poles and, along with an unknown TRANSCOR AMERICA, LLC employ ee, proceeded to punch him. Although this occurred at approximately 3:00 a.m. out side the Fresno County Jail, plaintiff was not allowed to shower or change clothes or see a nurse or a doctor until approximately two days later when, after making numerous stops along the way, the transport van reached Imperial County Jail.

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23. Plaintiff remained in the Imper ial County Jail for approximately three

2 days, after which time he was transported to Las Vegas.

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24. Defendants TRANSCOR AMER ICA, LLC and SGT. SMITH and

4 OFFICER BLANDEN and DOES 1 through 100 ar e jointly and severally personally

5 responsible for the unlawful conduct of which plaintiff complains.

6

25. As a result of being subjected to the harsh transportation policies,

practices, or customs descri bed herein, plaintiff, and all those similarly situated, have 7

suffered physical, mental, and em otional distress, invasion of privacy, and violation of 8
due process of law and federal and state stat utory and constitutional rights, and are

9 entitled to recover damages according to proof, including exemplary damages.

10 CLASS CLAIMS

11

26. The unlawful detention and transporta tion, use of excessive force, and

12 cruel and unusual punishment to which plainti ff and all those similarly situated were

13 subjected was performed pursuant to policies, practices, or customs of TRANSCOR

14 AMERICA, LLC and DOES 1-10. The unlawfu l detention and transpo rtation, use of

15 excessive force, and cruel and unusual puni shment complained of herein was

16 engaged in without regard to the nature of the alleged offens e for which plaintiff, and

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each of those similarly sit uated, had been arrested, without regard to whether or not plaintiff, and each of those similarly sit uated, had been convicted of any crime, and without regard to whether plaintiff, and each of those similarly situated, had any history of violence.
27. Plaintiff brings this action on hi s own behalf and on behalf of all persons similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.
28. The class is defined to include a ll pretrial detainees and prisoners who were transported by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to remain in the transport van for more than 24 hours, from two years preceding the filing of this Complaint to the date this matter is resolved.
29. The subclass for purposes of the Unruh Act claims is all pretrial detainees and prisoners transport ed in California by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to remain in the transport van for more than 24

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1 hours, from two years preceding the filing of this Compliant to the date this matter is

2 resolved.

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

4 members of the class are so numerous that joinder of all members is impractical.
5 Plaintiff does not know the exact number of class members. Plaintiff is informed and
6 believes, and thereupon alleges, that mo re than 30,000 persons per year are transported by defendants, and that most of the trips last more than 24 hours. Plaintiff
7 is informed and believes, and therefore alleges, that there are thousands of persons in
8 the proposed class.
9 31. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff
10 is informed and believes, and thereupon alleges, that there are many facts common to
11 the class including but not lim ited to: (a) whether defendants have a policy, practice,
12 or custom of transporting pretrial detai nees and prisoners in small metal cages,

13 wearing handcuffs, shackles, and wrist restrain ts, for more than 24 hours at a time; (b)

14 whether defendants have a policy, practice or custom of pr oviding pretrial detainees

15 and prisoners with inadequate food; (c) whether defendants have a policy, practice or

16 custom of providing pretrial detainees and prisoners with inadequate fluids; (d)

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whether defendants have a policy, practice or custom of pr oviding pretrial detainees and prisoners with inadequate hygiene; (e) whet her defendants have a policy, practice or custom of providing pretrial detainees and prisoner s with inadequate exercise; and (f) whether defendants have a policy, practi ce or custom of providing pretrial detainees and prisoners with inadequate medical care.
32. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff is informed and believes, and thereupon alleges, that there are many questions of law common to the class including but are not limit ed to: (a) whether transporting pretrial detainees and prisoners in metal cages, w earing handcuffs, shackles, and wrist restraints, unable to lie down or stand up for more than 24 hours at a time, violates the Fourth, Eighth, and Fourteenth Amendments; (b) whether defendants’ policy, practice or custom of providing pr etrial detainees and prisoners with inadequate food violates pretrial detainees’ right to be free fr om unreasonable seizure and detention and

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1 prisoners’ right to be free from cruel and unusual punishment; (c) whether defendants’

2 policy, practice or custom of providing pretrial detainees and prisoners with inadequate

3 fluids violates pretrial detainees’ right to be free from unreasonable seizure and

4 detention and prisoners’ right to be free from cruel and unusual punishment; (d)
5 whether defendants’ policy, practice or cust om of providing pretrial detainees and
6 prisoners with inadequate hygiene violates pret rial detainees’ right to be free from unreasonable seizure and detention and prisoners ’ right to be free from cruel and
7 unusual punishment; (e) whether defendants’ poli cy, practice or custom of providing
8 pretrial detainees with inadequate ex ercise violates pretrial detainees’ right to be free
9 from unreasonable seizure and detention; and (f ) whether defendants’ policy, practice
10 or custom of providing pr etrial detainees and prisoners with inadequate medical care
11 violates pretrial detainees’ right to be free from unreasonable seizure and detention
12 and prisoners’ right to be free from cruel and unusual punishment.

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

14 claims of the representative plaintiff are typi cal of the class. R epresentative plaintiff

15 has the same interests and suffered the same type of injuries as all of the class

16 members. Plaintiff’s claims arose because of defendants’ official policy, practice, or

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custom of subjecting detainees to unlawfu l transportation and detention, excessive

force, and cruel and unusual punishment. Plai ntiff’s claims are based upon the same

legal theories as the claims of the class members. Each class member suffered actual

damages as a result of being transpor

ted under the conditions imposed by

TRANSCOR AMERICA, LLC.

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

representative plaintiff will fair ly and adequately protect the class interests. Plaintiff’s

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

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

prosecutions of separate actions by indivi dual members of the class would create a

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

class would establish incom patible standards of conduct for the parties opposing the

class.

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

2 prosecutions of separate actions by indi vidual members of the class would create a

3 risk of inconsistent adjudications with respec t to individual members of the class which

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

5 members of the class to protect their interests.

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37. In accordance with Federal Rule s of Civil Procedure, Rule 23(b)(2),

plaintiff is informed and believes, and ther eupon alleges, that defendants have acted 7

on grounds generally applicable to the class, thereby making appropriate the final 8
injunctive or declaratory relief with respect to the class as a whole.

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

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

11 adjudication of the controversy between the parties. Plaint iff is informed and believes,

12 and thereupon alleges, that the interests of members of the class in individually

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

14 would be unable individually to prosecute any ac tion at all. Plaintiff is informed and

15 believes, and thereupon alleges, that the amount s at stake for individuals are so small

16 that separate suits would be impracticable. Plaintiff is informed and believes, and

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thereupon alleges, that most members of t he class will not be able to find counsel to represent them. Plaintiff is informed and believes, and thereupon alleges, that it is desirable to concentrate all litigation in one forum because it will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts.
39. Plaintiff does not know the identities of all of the class members. Plaintiff is informed and believes, and thereupon alleges , that the identities of the class members may be ascertained from reco rds maintained by defendant TRANSCOR AMERICA, LLC. Plaintiff is informed and believes, and thereupon alleges, that records maintained by defendants reflect who was subj ected to transportation, from where to where, when, and for how l ong. Plaintiff is informed and believes, and thereupon alleges, that all of the foregoing informa tion is contained in defendants’ records and that the information necessary to identif y the class members, by last known

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1 addresses, and the dates, pick-up and drop -off points, and duration of their

2 transportation, is readily available from said records.

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

4 members must be furnished with the best not ice practicable under the circumstances,

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

6 effort. Plaintiff is informed and belie ves, and thereupon alleges, that defendants’

computer records contain a last known 7

address for class members. Plaintiff

contemplates that individual notice will be given to class members at such last known 8
address by first class mail. Plaintiff c ontemplates that the notice will inform class

9 members of the following:

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i. The pendency of the class ac tion and the issues common to

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the class;

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ii. The nature of the action;

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

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which event they will not be bound by a decision rendered in

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the class action;

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

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own counsel and to enter an appearance in the case;

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otherwise they will be repres ented by the named class

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plaintiff(s) and their counsel; and

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

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favor of the class, and c onversely to be bound by any

judgment on the common issues adverse to the class. 22

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
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FIRST CLAIM FOR RELIEF
(Violation Of Fourth, Eighth And Fourteenth Amendments To The U.S. Constitution On Behalf Of Plaintiff And All Persons Similarly Situated Against Defendants TRANSCOR AMERICA, LLC And DOES 1 through
100, And Each Of Them)
41. Plaintiff hereby incorporates herein the preceding paragraphs of this
complaint, to the extent relevant, as if fully set forth.

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1

42. Defendants’ policies, practices, or customs regarding the transportation

2 of pretrial detainees and prisoner s violated the rights of plaintiff, and the rights of each

3 of those similarly situated, under the Fourth and Eighth Am endments to be free from

4 unlawful detention, the use of excessive force, and cruel and unusual punishment, and

5 violated the rights of plainti ff, and the rights of each of t hose similarly situated, under

6 the Fourteenth Amendment to due process and privacy, and directly and proximately

damaged plaintiff, and each of those similarly situated, as herein alleged, entitling 7

plaintiff, and each of those similarly si

tuated, to recover damages for said

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constitutional violations pursuant to 42 U.S.C. § 1983.

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WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

10 similarly situated, prays for relief as hereunder appears.

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12

SECOND CLAIM FOR RELIEF

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(Violation Of The California State Unruh Civil Rights Act, Civil Code

Section 52.1, On Behalf Of Plaintiff And All Persons Similarly Situated

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And Against All Defendants, And Each Of Them)

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43. Plaintiff hereby incorporates herein the preceding paragraphs of this

16 complaint, to the extent relevant, as if fully set forth.

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44. By subjecting plaintiff, and all those similarly situated, to unlawful seizure

18 and detention, the use of excessive force, and cruel and unusual punishment,

19 defendants, and each of them, have interfered by threats, intimidation, or coercion with

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plaintiff’s rights, and the rights of all t

hose similarly situat ed, secured by the

Constitution of the United St ates and the rights secured by the Constitution of

California.

45. Plaintiff, and each of the persons plaintiff seeks to represent, was

harmed by defendants’ interference with t heir aforementioned constitutional and

statutory rights.

46. By using threats, intimidation and coercion to interfere with plaintiff’s, and

each of the persons’ plaintiff seeks to represent, aforementioned constitutional and

statutory rights, defendants, and each of them, have violated California Civil Code §

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1 52.1.

2

47. Defendants’ violations of Califor nia Civil Code § 52.1 makes them liable

3 to each plaintiff for damages up to a maxi mum of three times the amount of each

4 plaintiff’s actual damages, but in no event less than four thousand dollars ($4,000),

5 together with any attorney’s fees and costs that may be determined by the court.

6

WHEREFORE, plaintiff, on behalf of hi mself and on behalf of all those

7 similarly situated, prays for relief as hereunder appears.

8

THIRD CLAIM FOR RELIEF

9 (Violation Of Fourth And Fourteenth Amendments To The U.S.

10

Constitution On Behalf Of Plaintiff Against All Defendants, And Each Of

Them) 11
48. Plaintiff hereby incorporates herein the preceding paragraphs of this

12 complaint, to the extent relevant, as if fully set forth.

13

49. Defendants TRANSCOR AMERIC A, LLC, SGT. SM ITH, OFFICER

14 BLANDEN, and DOES 1 through 100 acted under color of law in detaining and

15 transporting plaintiff in conditions that am ounted to punishment, subj ecting plaintiff to

16 excessive force, and depriving plaintiff of adequate food, fluids, hygiene, exercise and

17 medical care, thereby violating plainti ff’s rights under the Fourth and Fourteenth

18 Amendments, and directly and prox imately injuring plaintiff, as herein alleged, entitling

19 plaintiff to recover damages fo r said constitutional violations pursuant to 42 U.S.C. §

20 1983.

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50. As a proximate result of the conduct of defendants, plaintiff suffered

22 physical pain and emotional distress and incu rred general damages for the deprivation

23 of his constitutional rights.

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51. Defendants acted in reckless and ca llous disregard for the constitutional

25 rights of plaintiff, and with willf ul oppression and malice. Plaintiff therefore seeks an

26 award of punitive damages against the individual Defendants.

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WHEREFORE, plaintiff prays for relief as hereunder appears.

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

FOURTH CLAIM FOR RELIEF
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(Violation Of Fourth And Fourteenth Amendments To The U.S.

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Constitution On Behalf Of Plaintiff Against Defendants TRANSCOR

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AMERICA, LLC And DOES 1 through 10, And Each Of Them, For Failure To Supervise)

4

5

52. Plaintiff hereby incorporates her ein the preceding paragraphs of this

6 complaint, to the extent relevant, as if fully set forth. Plaintiff is informed and believes

7 that defendants TRANSCOR AMERICA, LLC and DOES 1 through 10 participated in

8 the violation of plaintiff’s rights by fa iling to provide adequate training, supervision,

9 discipline, and control of their agents and employees, including defendants SGT.

10 SMITH and OFFICER BLANDEN, wit h respect to the constitutional prohibition against

11 unreasonable searches and seizur es and the appropriate use of force and by ratifying

12 the conduct of the Defendants described in th is complaint, thereby acquiescing in the

deprivation of plaintiff’s rights. 13

WHEREFORE, plaintiff prays for relief as hereunder appears. 14
PRAYER FOR RELIEF 15
WHEREFORE, plaintiff, on behalf of himself and on behalf of all those 16 similarly situated, seeks judgment as follows:

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

18 preliminarily and permanently, defendants’ policy, practice, or custom of transporting

19 pretrial detainees and prisoners under the conditions described herein;

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2. Certification of the action as a class action;

21

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

22 representative and for each me mber of the class of pl aintiffs, as against all

23
24
25
26
27
28
CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

defendants; 4. Exemplary damages as against each of the individual defendants
in an amount sufficient to deter and to make an example of those defendants; 5. Attorneys’ fees and costs under 42 U.S.C. § 1988, and California
Civil Code §§ 52 et seq.; and, 6. The cost of this suit and such other relief as the court finds just

Schilling v. TransCor America, LLC, et al. CLASS ACTION COMPLAINT

Page 13

Case3:08-cv-00941-SI Document1 Filed02/14/08 Page14 of 14

1 and proper.

2

3

1.

DEMAND FOR A JURY TRIAL Pursuant to F.R.Civ.P. 38(b), a jury trial is hereby demanded.

4

5 DATED: February 14, 2008 6 7 Respectfully submitted,

8

Andrew C. Schwartz

9

CASPER, MEADOWS, SCHWARTZ & COOK

10

Attorneys for Plaintiff

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

Schilling v. TransCor America, LLC, et al. CLASS ACTION COMPLAINT

Page 14

 
 Case3:08-cv-00941-SI Document4 Filed03/10/08 Page1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Justus C. Spillner, # 067638 McCormick, Barstow, Sheppard, Wayte & Carruth LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300 Attorneys for Defendants TRANSCOR AMERICA, LLC

(SPACE BELOW FOR FILING STAMP ONLY)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

KEVIN M. SCHILLING, on behalf of himself and all those similarly situated,
Plaintiff, v. TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER BLANDEN, and DOES 1 through 100,
Defendants.

Case No. 3:08-cv-00941 JL

NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

Date:

April 16, 2008

Time:

9:30 a.m.

Courtroom: F

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant TRANSCOR AMERICA, LLC, will and hereby does move for an Order dismissing Plaintiff KEVIN M. SCHILLING’S “Class Action Complaint” pursuant to Rules 12(1) & (6) of the Federal Rules of Civil Procedure for lack of standing to assert class claims for violations of the Fourth and Eighth Amendment, for lack of standing to seek declaratory and/or injunctive relief, and for failure to state a legally cognizable claim for relief under California’s Unruh Civil Rights Act. Defendant additionally moves for an Order requiring a more definite statement as to the basis for Plaintiff’s state law claims. /// /// ///
NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

Case3:08-cv-00941-SI Document4 Filed03/10/08 Page2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

The Motion is based on this Notice of Motion, the Memorandum of Points and Authorities filed concurrently herewith, any Reply submitted to an opposition of the same, Defendant’s Request for Judicial Notice, on the records and files on this matter, and upon such oral and documentary evidence which may be presented at any hearing on the Motion.

Dated: March 10, 2008
00003/00010-1200346.v1

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

By:

/s/ Justus C. Spillner

Justus C. Spillner

Attorneys for Defendants

TRANSCOR AMERICA, LLC

2
NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

Case3:08-cv-00941-SI Document4 Filed03/10/08 Page3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is McCormick, Barstow, Sheppard, Wayte & Carruth LLP, 5 River Park Place East, Fresno, California 93720-1501. On March 10, 2008, I served the within documents: NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

¨

BY FAX: by transmitting via facsimile the document(s) listed above to the fax

number(s) set forth below on this date before 5:00 p.m.

¨

BY PERSONAL DELIVERY: by personally delivering the document(s) listed

above to the person(s) at the address(es) set forth below.

¨

BY MAIL: by placing the document(s) listed above in a sealed envelope with

postage thereon fully prepaid, in the United States mail at Fresno, California

addressed as set forth below.

¨

BY OVERNIGHT MAIL: by causing document(s) to be picked up by an

overnight delivery service company for delivery to the addressee(s) on the next

business day.

ý

BY ELECTRONIC SUBMISSION: per court order, submitted electronically by

Verilaw to be posted to the website and notice given to all parties that the

document has been served.

Andrew C. Schwartz CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd., Suite 1020 Walnut Creek, CA 94596 Fax: (925) 947-1131 Email: Schwartz@cmslaw.com

Mark Merin Joshua Kaizuka LAW OFFICES OF MARK E. MERIN 2001 P Street, Suite 100 Sacramento, CA 95814 Fax: (916) 447-8336 Email: mark@markmerin.com

Karen L. Snell Attorney at Law 102 Buena Vista Terrace San Francisco, CA 94117 Fax: (415) 487-0748 Email: ksnell@clarencedyer.com

I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
3
NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

Case3:08-cv-00941-SI Document4 Filed03/10/08 Page4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.
Executed on March 10, 2008, at Fresno, California. /s/ Anne E. Jennings Anne E. Jennings
4
NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT AND FOR A MORE DEFINITE STATEMENT

 
 Case3:08-cv-00941-SI Document26 Filed08/21/08 Page1 of 15

1 Mark E. Merin (State Bar No. 043849) Joshua Kaizuka (State Bar No. 212195)
2 LAW OFFICE OF MARK E. MERIN 2001 P Street, Suite 100
3 Sacramento, California 95811 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 E-Mail: mark@markmerin.com
5 Andrew C. Schwartz (State Bar No. 064578)
6 CASPER, MEADOWS, SCHWARTZ & COOK A Professional Corporation
7 California Plaza 2121 North California Blvd., Suite 1020
8 Walnut Creek, California 94596 Telephone: (925) 947-1147
9 Facsimile: (925) 947-1131 E-Mail: Schwartz@cmslaw.com
10 Karen L. Snell (State Bar No. 100266)
11 Attorney at Law 102 Buena Vista Terrace
12 San Francisco, CA 94117 Telephone: (415) 225-7592
13 Facsimile: (415) 487-0748 E-Mail: ksnell@clarencedyer.com
14 Attorneys for Plaintiffs
15

16

IN THE UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

19 KEVIN M. SCHILLING, JOHN PINEDO, WILLIAM TELLEZ, on behalf of themselves
20 and all those similarly situated,

21

Pl

aintiffs,

22 vs.

Case No. 3:08-cv-00941-SI
FIRST AMENDED CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL

23 TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER BLANDEN, and DOES 1
24 through 100,

25

Defendants.

26 \\\

27 \\\

28 \\\

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 1

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page2 of 15

1 PLAINTIFFS COME BEFORE THIS HONORABLE COURT AND ALLEGE:

2

INTRODUCTION

3

1. This is an action f or declaratory and injunctive relief, damages, and punitive

4 damages against TRANSCOR AMERICA, LLC , SGT. JOHN SMITH, OFFICER BLANDEN

5 and DOES 1 THROUGH 100 (persons sued herein by their fictitious names) for violations of

6 plaintiff’s constitutional rights and those of other similarly situated persons.

7

2. In this complaint, plaintiff alleges that TRANSCOR AMERICA, LLC’s official

8 policy, practice, or custom of transporting pretri al detainees and prisoners in conditions that

9 amount to cruel and unusual punishm ent violated and violates the rights of plaintiff, and each

10 of those persons similarly situated, secured by the Fourth, Eighth and Fourteenth Am endments

11 to the U.S. Constitution and entitles plaintiff, and each of those sim ilarly situated, to recover

12 damages and attorneys’ fees under the Fede ral Civil Rights Act (42 U.S.C. §§ 1983, 1988).

13 TRANSCOR AMERICA, LLC’s policies, practices or customs include but are not lim ited to

14 transporting pretrial detainees and prisoners in small metal cages in which a person can neither

15 stand up nor lie down for more than 24 hours at a time while the person is handcuffed, chained,

16 and in shackles, and failing to provide pretrial detainees and prisoners with adequate food,

17 fluids, exercise, hygiene, and medical care.

18

3. Because TRANSCOR AMERICA, LLC’s offici al policy, practice, or custom is

19 to transport pretrial detainees and prisoners in conditions that am ount to unlawful detention,

20 excessive force, and cruel and unusual punishm ent, there is a likelihood of future injuries to

21 pretrial detainees and prisoners including members of the plaintiff class. Accordingly, plaintiff

22 seeks an order declaring unlawful TRANSCOR AMERICA, LLC’s policy, practice or custom

23 of transporting pretrial detainees under the conditions described above and enjoining

24 TRANSCOR AMERICA, LLC from engaging in this conduct in the future.

25

4. Plaintiff includes claims for damages and attorneys’ fees under California state

26 law against TRANSCOR AMERICA, LLC for vi olation of the Bane Civil Rights Act

27 (California Civil Code § 52.1(b)) pursuant to wh ich plaintiff is, and each of those persons

28 similarly situated in the subclass of pretrial detainees and prisoners transported by defendants

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 2

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page3 of 15

1 in California is, entitled to recover a m inimum of $4,000 for each violation of rights secured to

2 them by the constitution or laws of the state of California and the constitution or laws of the

3 United States and attorneys’ fees (California Civil Code § 52.1(h)).

4

5. Plaintiff includes claims for damages and attorneys’ fees under the Federal Civil

5 Rights Act (42 U.S.C. §§ 1983, 1988) against all de fendants for their violation of his Fourth

6 and Fourteenth Amendment right to be free from the use of excessive force, and the right to be

7 provided with adequate medical care.

8

6. Finally, plaintiff includes a claim for damages and attorneys’ fees under the

9 Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988) against TRANSCOR AMERICA, LLC and

10 DOES 1-10 for its failure to adequately s upervise SGT. SMITH, OFFICER BLANDEN, and

11 DOES 11 through 100.

12

JURISDICTION

13

7. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth,

14 Eighth and Fourteenth Am endments to the Unite d States Constitution. Jurisdiction is founded

15 upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the aforem

entioned statutory and

16 constitutional provisions.

17

8. The court has supplem ental jurisdiction over plaintiff’s state claim s under 28

18 U.S.C. § 1367(a).

19

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

20 PARTIES
21 10. Plaintiff KEVIN M. SCHILLING is a reside nt of Vallejo, California. Like all
22 those similarly situated, plaintiff is and at all m aterial times herein was a citizen of the United
23 States who was arrested in one jurisdiction f or an of fense allegedly com mitted in another
24 jurisdiction and was transported f rom one dete ntion facility to another detention f acility by
25 defendants.
26 11. Plaintiff JOHN PINEDO is a resident of Delano, California. Like all those
27 similarly situated, plaintiff is and at all m aterial times herein was a citizen of the United States
28

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 3

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page4 of 15

1 who was a sentenced prisoner serving tim e in one jurisdiction when he was picked up by

2 defendant TRANSCOR AMERICA, LLC and trans ported to another jurisdiction for a court

3 appearance.

4

12. Plaintiff WILLIAM TELLEZ is a citizen of the United States who was serving a

5 sentence in the Federal Penitentiary in Atwa ter, California, when he was picked up and

6 transported to and from Clark County Deten tion Center in Nevada by defendant TRANSCOR

7 AMERICA, LLC.

8

13. Defendant TRANSCOR AMERICA, LLC is and at all material times referred to

9 herein was a for-profit Tennessee corporation licensed to do business in California whose

10 business entails the transportation of pretrial detainees and prisoners throughout the United

11 States on behalf of federal, state, and local governments.

12

14. Defendant SGT. JOHN SMITH is an ag ent and/or em ployee of defendant

13 TRANSCOR AMERICA, LLC.

14

15. Defendant OFFICER BLANDEN is an ag ent and/or em ployee of Defendant

15 TRANSCOR AMERICA, LLC.

16

16. Plaintiffs are inform ed and believe a nd thereon allege that defendants sued

17 herein by their fictitious nam es, DOES 1 th rough 100, are agents and/or em ployees of

18 defendant TRANSCOR AMERICA, LLC. Plaintiffs are not currently aware of the true nam es

19 and identities of those sued herein as DOES 1 through 100, but will am end their complaint to

20 include such persons’ real names once said names are made available to them.

21

17. At all material times mentioned herein, each of the defendants was acting under

22 the color of law, to wit, under color of statut es, ordinances, regulations, policies, custom s and

23 usages of the United States and its States, including but not limited to the State of California.

24

18. Class action plaintiffs are all those sim ilarly situated pretrial detainees and

25 prisoners who were transported by TRANS COR AMERICA, LLC, its agents and/or

26 employees, and forced to rem ain in the trans port van for m ore than 24 hours, within the two

27 years preceding the filing of this Complaint and the date this matter is resolved.

28 \\\

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page5 of 15

1

19. For purposes of the California Bane Act Claim, class action plaintiffs are all

2 those similarly situated pretrial detainees and prisoners who were transported in the State of

3 California by TRANSCOR AMERICA, LLC, its ag ents and/or em ployees, and forced to

4 remain in the transport van for m ore than 24 hours, within the two years preceding the filing of

5 this Complaint and the date this matter is resolved.

6

FACTS

7

20. In or about early Septem ber, 2006, plaintiff KEVIN M. SCHILLING was

8 arrested at his home in Vallejo, California on a no-bail warrant issued by a court in Las Vegas,

9 Nevada. Plaintiff was booked into a detention facility in Fairfield, California, where he

10 remained for several days.

11

21. On or about Septem ber 22, 2006, plainti ff was picked up at the Fairfield

12 Detention facility by agents and/or em ployees of defendant TRANSCOR AMERICA, LLC.

13 Before boarding the transport va n, plaintiff was strip searched. He was then handcuffed, a

14 restraint was applied that secured his hands to his waist, and he was shackled. After boarding

15 the transport van, plaintiff was seated on a m etal bench in a small, locked metal cage in which

16 it was impossible for him to stand up or lie down.

17

22. For the next several days, plaintiff rem ained in the transport van, restrained as

18 described above, while the van meandered around California -- from Fairfield through counties

19 within the Northern District of the United States District Court, to Fresno and then back, once

20 again through counties within the Northern Distri ct of the United States District Court, to

21 Fairfield – picking up and dropping off pretrial detainees and/or prisoners.

22

23. During his time in the transport van, plai ntiff was provided with only two m eals

23 a day, which consisted of a fast food sandwich or hamburger and a cup of water. Plaintiff was

24 not permitted to lie down or stand up or shower or shave or brush his teeth or change his

25 clothes. He was forced to use the on-board to ilet at the defendants’ convenience. Eventually,

26 it backed up and sm elled bad. But for the steps from his cage to the toilet and back, he was

27 allowed no physical activity.

28 \\\

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page6 of 15

1

24. When, after approxim ately four days of traveling in these conditions, plaintiff

2 realized that the TRANSCOR AMERICA, LLC tran sport van was headed back to Fairfield, he

3 demanded to talk to the warden. In response, and while he was still detained as described

4 above, defendants SGT. JOHN SMITH and OFFICER BLANDEN grabbed him and sprayed

5 pepper spray in his face. While plaintiff was still unable to see, SGT. JOHN SMITH purposely

6 walked him into poles and, along with an unknown TRANSCOR AMERICA, LLC em ployee,

7 and proceeded to punch him . Although this occu rred at approximately 3:00 a.m. outside the

8 Fresno County Jail, plaintiff was not allowed to s hower or change clothe s or see a nurse or a

9 doctor until approximately two days later when, after m aking numerous stops along the way,

10 the transport van reached Imperial County Jail.

11

25. Plaintiff remained in the Imperial County Jail for approximately three days, after

12 which time he was transported to Las Vegas.

13

26. On or about June 29, 2006, at approximately 9:00 a.m., plaintiff JOHN PINEDO

14 was picked up by defendant TRANSCRO AMERIC A, LLC, at Kern Valley State Prison in

15 Delano, California where he was serving a sentence for possession and sale of m arijuana, and

16 transported to Santa Barbara County Jail wh ere he arrived on June 30, 2005, m ore than 27

17 hours later for a child custody hearing.

18

27. The entire tim e plaintiff PINEDO was on defendant TRANSCOR’s transport

19 vehicle, he was handcuffed, shackled, and restrain ed with a belly chain and chained to other

20 inmates in a metal cage, unable to lie down, or to sleep during the entire time of his transport.

21

28. During his time in the transport van, plaintiff PINEDO was perm itted only two

22 opportunities to urinate but could not sit to use the toilet to defecate because the TRANSCOR

23 personnel would not remove any of the restraints.

24

29. During the entire tim e of his transport, plaintiff PINEDO was fed only three

25 “fast food” m eals, not perm itted to wash, to show er, or to change his clothes, before being

26 delivered to Santa Barbara County Jail.

27

30. In or about August 2005, plaintiff TELLEZ was serving a sentence at the

28 Federal Penitentiary in Atwater, Calif ornia, when he was first picked up for transport to Clark

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 6

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page7 of 15

1 County Detention Center. The trip on the TR ANSCOR transport van took six (6) days, during

2 which time several stops were made to pick up and discharge prisoners along the way.

3

31. Plaintiff TELLEZ was m anacled, shackled and handcuffed during the entire

4 time of his transport. He had lim ited access to toilet facilities, was not perm itted to shower at

5 any time during the six (6) day transport, and had only a restricted diet of “fast food” during the

6 entire time on the transport van.

7

32. Transported in a cage, m anacled, shackled, and waist chained, he was unable to

8 lie down and deprived of sleep during the entire time of the transport.

9

33. Transported by TRANSCOR back to Atwa ter in late February 2006, plaintiff

10 TELLEZ was again subjected to the sam e abominable conditions he experienced on the initial

11 trip from Atwater: six (6) day transport while handcuffed, shackled and waist chained the

12 entire time in a small metal cage in which he was unable to lie down and deprived of sleep.

13

34. Again, he was fed only a rest ricted diet of “fast food”, denied bathroom breaks,

14 and never unshackled in order to use the toilet to defecate.

15

35. Defendants TRANSCOR AMERICA, LLC and SGT. SMITH and OFFICER

16 BLANDEN and DOES 1 through 100 are jointly and severally personally responsible for the

17 unlawful conduct of which plaintiffs complain.

18

36. As a result of being subjected to the ha rsh transportation policies, practices, or

19 customs described herein, plaintiffs, and all t hose similarly situated, have suffered physical,

20 mental, and em otional distress, invasion of priv acy, and violation of due process of law and

21 federal and state statutory and constitutional rights, and are entitled to recover dam

ages

22 according to proof, including exemplary damages.

23

CLASS CLAIMS

24

37. The unlawful detention and transportation, use of excessive force, and cruel and

25 unusual punishment to which plaintiffs and all those similarly situated were subjected was

26 performed pursuant to policies, practices, or customs of TRANSCOR AMERICA, LLC and

27 DOES 1-10. The unlawful detention and transporta tion, use of excessive force, and cruel and

28 unusual punishment complained of herein was enga ged in without regard to the nature of the

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 7

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page8 of 15

1 alleged offense for which plaintiffs, and each of those sim ilarly situated, had been arrested,

2 without regard to whether or not plaintiffs, and each of those sim ilarly situated, had been

3 convicted of any crim e, and without regard to whether plaintiffs, and each of those sim ilarly

4 situated, had any history of violence.

5

38. Plaintiffs bring this action on their ow n behalf and on behalf of all persons

6 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.

7

39. The class is defined to include all pret rial detainees and prisoners who were

8 transported by TRANSCOR AMERICA, LLC, its ag ents and/or em ployees, and forced to

9 remain in the transport van for m ore than 24 hours, from two years preceding the filing of this

10 Complaint to the date this matter is resolved.

11

40. The subclass for purposes of the Bane Act claims is all pretrial detainees and

12 prisoners transported in California by TR ANSCOR AMERICA, LLC, its agents and/or

13 employees, and forced to rem ain in the trans port van for m ore than 24 hours, from two years

14 preceding the filing of this Compliant to the date this matter is resolved.

15

41. In accordance with Federal Rules of Civ il Procedure, Rule 23(a), the m embers

16 of the class are so num erous that joinder of a ll members is impractical. Plaintiffs do not know

17 the exact number of class members. Plaintiffs are informed and believe, and thereupon allege,

18 that more than 30,000 persons per year are transported by defendants, and that most of the trips

19 last more than 24 hours. Plaintiffs are informed and believe, and therefore allege, that there are

20 thousands of persons in the proposed class.

21

42. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

22 informed and believe, and thereupon allege, th at there are m any facts com mon to the class

23 including but not lim ited to: (a) whether defe ndants have a policy, practice, or custom of

24 transporting pretrial detainees and prisoners in small metal cages, wearing handcuffs, shackles,

25 and wrist restraints, for m ore than 24 hours at a time; (b) whether defendants have a policy,

26 practice or custom of providing pretrial detain ees and prisoners with inadequate food; (c)

27 whether defendants have a policy, practice or custom of providing pretrial detainees and

28 prisoners with inadequate fluids; (d) whether defendants have a policy, practice or custom of

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page9 of 15

1 providing pretrial detainees and prisoners with inadequate hygiene; (e) whether defendants

2 have a policy, practice or custom of providing pretrial detainees and prisoners with inadequate

3 exercise; and (f) whether defendants have a po licy, practice or custom of providing pretrial

4 detainees and prisoners with inadequate medical care.

5

43. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

6 informed and believe, and thereupon allege, that there are m any questions of law com mon to

7 the class including but are not lim ited to: (a) whether transporting pretrial detainees and

8 prisoners in metal cages, wearing handcuffs, shack les, and wrist restraints, unable to lie down

9 or stand up for m ore than 24 hours at a tim e, violates the Fourth, Eighth, and Fourteenth

10 Amendments; (b) whether defendants’ policy, practice or custom of providing pretrial

11 detainees and prisoners with inadequate food violat es pretrial detainees’ right to be free from

12 unreasonable seizure and detention and prisoners ’ right to be free from cruel and unusual

13 punishment; (c) whether defendants’ policy, practi ce or custom of providing pretrial detainees

14 and prisoners with inadequate fluids violates pretrial detainees’ right to be free from

15 unreasonable seizure and detention and prisoners ’ right to be free from cruel and unusual

16 punishment; (d) whether defendants’ policy, practi ce or custom of providing pretrial detainees

17 and prisoners with inadequate hygiene violates pretrial detainees’ right to be free from

18 unreasonable seizure and detention and prisoners ’ right to be free from cruel and unusual

19 punishment; (e) whether defendants’ policy, practi ce or custom of providing pretrial detainees

20 with inadequate exercise violates pretrial de tainees’ right to be free from unreasonable seizure

21 and detention; and (f) whether defendants’ po licy, practice or custom of providing pretrial

22 detainees and prisoners with inadequate medical care violates pretrial detainees’ right to be free

23 from unreasonable seizure and detention and pris oners’ right to be free from cruel and unusual

24 punishment.

25

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

26 the representative plaintiffs are typical of the cl ass. Representative plaintiffs have the sam e

27 interests and suffered the same type of injuries as all of the class m embers. Plaintiffs’ claim s

28 arose because of defendants’ official policy, pr actice, or custom of subjecting detainees to

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page10 of 15

1 unlawful transportation and detention, excessive force, and cruel and unusual punishm ent.

2 Plaintiffs’ claims are based upon the sam e legal theories as the claim s of the class m embers.

3 Each class m ember suffered actual dam ages as a result of being transported under the

4 conditions imposed by TRANSCOR AMERICA, LLC.

5

45. In accordance with Federal Rules of

Civil Procedure, Rule 23(a), the

6 representative plaintiffs will f airly and adequate ly protect the class interests. Plaintif fs’

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

8

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

9 prosecutions of separate actions by individual m embers of the class would create a risk that

10 inconsistent or varying adjudications with re spect to individual m embers of the class would

11 establish incompatible standards of conduct for the parties opposing the class.

12

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

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

14 inconsistent adjudications with respect to i ndividual members of the class which would, as a

15 practical matter, substantially impair or impede the interests of the other m embers of the class

16 to protect their interests.

17

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

18 are informed and believe, and thereupon alle ge, that defendants have acted on grounds

19 generally applicable to the class, thereby m aking appropriate the final injunctive or declaratory

20 relief with respect to the class as a whole.

21

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

22 action is superior to other available m ethods for the fair and equitable adjudication of the

23 controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that

24 the interests of members of the class in indi vidually controlling the prosecution of a separate

25 action is low, in that m ost class members would be unable individually to prosecute any action

26 at all. Plaintiffs are inform ed and believe, and thereupon allege, that the am ounts at stake for

27 individuals are so small that separate suits would be impracticable. Plaintiffs are informed and

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

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page11 of 15

1 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to

2 concentrate all litigation in one forum because it will promote judicial efficiency to resolve the

3 common questions of law and fact in one forum, rather than in multiple courts.

4

50. Plaintiffs do not know the identities of all of the class m embers. Plaintiffs are

5 informed and believe, and thereupon allege, that the identities of the class m embers may be

6 ascertained from records m aintained by defe ndant TRANSCOR AMERICA, LLC. Plaintiffs

7 are informed and believe, and thereupon allege, that records maintained by defendants reflect

8 who was subjected to transportation, from where to where, when, and for how long. Plaintiffs

9 are informed and believe, and thereupon allege , that all of the foregoing inform ation is

10 contained in defendants’ records and that the inform ation necessary to identify the class

11 members, by last known addresses, and the dates, pick-up and drop-off points, and duration of

12 their transportation, is readily available from said records.

13

51. In accordance with Federal Rules of Ci vil Procedure, Rule 23(b)(3), class

14 members must be furnished with the best no tice practicable under the circumstances, including

15 individual notice to all members who can be identified through reasonable effort. Plaintiffs are

16 informed and believe, and thereupon allege, that defendants’ computer records contain a last

17 known address for class members. Plaintiffs contemplate that individual notice will be given to

18 class members at such last known address by first class mail. Plaintiffs contem plate that the

19 notice will inform class members of the following:

20

i. The pendency of the class action and the issues com mon to the

21

class;

22

ii. The nature of the action;

23

iii. Their right to “opt out” of the ac tion within a given tim e, in which

24

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

25

action;

26

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

27

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

28

be represented by the named class plaintiffs and their counsel; and

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page12 of 15

1

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

2

favor of the class, and convers ely to be bound by any judgm ent on

3

the common issues adverse to the class.

4

FIRST CLAIM FOR RELIEF

5 (Violation Of Fourth, Eighth And Fourteenth Amendments To The U.S.

6

Constitution On Behalf Of Plaintiffs And All Persons Similarly Situated Against

Defendants TRANSCOR AMERICA, LLC And DOES 1 through 100, And

7

Each Of Them)

8

52. Plaintiffs hereby incorporate herein the preceding paragraphs of this com plaint,

9 to the extent relevant, as if fully set forth.

10

53. Defendants’ policies, practices, or cu stoms regarding the transportation of

11 pretrial detainees and prisoners violated the right s of plaintiffs, and the rights of each of those

12 similarly situated, under the Fourth and Ei ghth Amendments to be free from unlawful

13 detention, the use of excessive force, and crue l and unusual punishment, and violated the rights

14 of plaintiffs, and the rights of each of t

hose similarly situated, under the Fourteenth

15 Amendment to due process and privacy, and dir ectly and proximately damaged plaintiffs, and

16 each of those sim ilarly situated, as herein alleged, entitling plaintiffs, and each of those

17 similarly situated, to recover damages for said constitutional violations pursuant to 42 U.S.C. §

18 1983.

19

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

20 situated, prays for relief as hereunder appears.

21

SECOND CLAIM FOR RELIEF

22

(Violation Of The California State Bane Civil Rights Act, Civil Code Section

23

52.1, On Behalf Of Plaintiffs And All Persons Similarly Situated And Against

All Defendants, And Each Of Them)

24

25

54. Plaintiffs hereby incorporate herein the preceding paragraphs of this com plaint,

26 to the extent relevant, as if fully set forth.

27

55. By subjecting plaintiffs, and all those sim ilarly situated, to unlawful seizure and

28 detention, the use of excessive force, and cruel and unusual punishm ent, defendants, and each

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 12

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page13 of 15

1 of them, have interfered by threats, intim idation, or coercion with plain tiff’s’ rights, and the

2 rights of all those sim ilarly situated, secured by the Constitution of the United States and the

3 rights secured by the Constitution of California.

4

56. Plaintiffs, and each of the persons plain tiffs seek to represent, was harm ed by

5 defendants’ interference with their aforementioned constitutional and statutory rights.

6

57. By using threats, intimidation and coercion to interfere with plaintiffs’, and each

7 of the persons’ plaintif fs seek to represent, aforementioned constitutional and statutory rights,

8 defendants, and each of them, have violated California Civil Code § 52.1.

9

58. Defendants’ violations of California Civil Code § 52.1 m akes them liable to

10 each plaintiff for damages up to a maximum of three times the amount of each plaintiffs’ actual

11 damages, but in no event less than four thousand dollars ($4,000), together with any attorney’s

12 fees and costs that may be determined by the court.

13

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

14 situated, pray for relief as hereunder appears.

15

THIRD CLAIM FOR RELIEF

16 (Violation Of Fourth And Fourteenth Amendments To The U.S. Constitution On

17

Behalf Of Plaintiffs Against All Defendants, And Each Of Them)

18

59. Plaintiffs hereby incorporate herein the preceding paragraphs of this com plaint,

19 to the extent relevant, as if fully set forth.

20

60. Defendants TRANSCOR AMERICA, LLC, SGT. SMITH, OFFICER

21 BLANDEN, and DOES 1 through 100 acted under color of law in detaining and transporting

22 plaintiffs in conditions that am ounted to punishm ent, subjecting plaintiffs to excessive force,

23 and depriving plaintiffs of adequate food, flui ds, hygiene, exercise and m edical care, thereby

24 violating plaintiffs’ rights under the Fourth a nd Fourteenth Am endments, and directly and

25 proximately injuring plaintiffs, as herein alleged, entitling plaintiffs to recover damages for said

26 constitutional violations pursuant to 42 U.S.C. § 1983.

27 \\\

28 \\\

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

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Case3:08-cv-00941-SI Document26 Filed08/21/08 Page14 of 15

1

61. As a proximate result of the conduct of defendants, plaintiffs suffered physical

2 pain and em otional distress and incurred general dam ages for the deprivation of his

3 constitutional rights.

4

62. Defendants acted in reckless and callous disregard f or the constitutional rights

5 of plaintiffs, and with willful oppression and m alice. Plaintiffs therefore seek an award of

6 punitive damages against the individual Defendants.

7

WHEREFORE, plaintiffs pray for relief as hereunder appears.

8

FOURTH CLAIM FOR RELIEF

9 (Violation Of Fourth And Fourteenth Amendments To The U.S. Constitution On

10

Behalf Of Plaintiffs Against Defendants TRANSCOR AMERICA, LLC And

DOES 1 through 10, And Each Of Them, For Failure To Supervise) 11

12

63. Plaintiffs hereby incorporate herein the preceding paragraphs of this com plaint,

13 to the extent relevant, as if fully set forth.

14

64. Plaintiffs are inform ed and believe, and herein allege, that defendants

15 TRANSCOR AMERICA, LLC and DOES 1 through 10 participated in the violation of

16 plaintiffs’ rights by failing to provide adequate training, supervision, discipline, and control of

17 their agents and em ployees, including defendants SGT. SMITH and OFFICER BLANDEN,

18 with respect to the constitutional prohibition ag ainst unreasonable searches and seizures and

19 the appropriate use of force and by ratifying th e conduct of the Defendants described in this

20 complaint, thereby acquiescing in the deprivation of plaintiffs’ rights.

21

WHEREFORE, plaintiffs pray for relief as hereunder appears.

22

PRAYER FOR RELIEF

23

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

24 situated, seek judgment as follows:

25

1. For declaratory and injunctive relie f declaring illegal and enjoining,

26 preliminarily and permanently, defendants’ policy, practice, or custom of transporting pretrial

27 detainees and prisoners under the conditions described herein;

28

2. Certification of the action as a class action;

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 14

Case3:08-cv-00941-SI Document26 Filed08/21/08 Page15 of 15

1

3. For compensatory, general, and special dam ages for each representative

2 plaintiff and for each member of the class of plaintiffs, as against all defendants;

3

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

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

5

5. Attorneys’ fees and costs under 42 U.S.C. § 1988, and California Civil

6 Code §§ 52 et seq.; and,

7

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

8 proper.

9

DEMAND FOR A JURY TRIAL

10

Pursuant to Federal Rules of Civil Procedure 38(b), a jury trial is hereby demanded.

11 DATED: August 21, 2008 12 13 14 15 16

Respectfully submitted,
LAW OFFICE OF MARK E. MERIN
/s/ - “Mark E. Merin” By:
Mark E. Merin Attorneys for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

Schilling v. TransCor America, LLC, et al. FIRST AMENDED CLASS ACTION COMPLAINT

Page 15

 
 Case3:08-cv-00941-SI Document118 Filed03/16/10 Page1 of 1

1

2

3

4

5

6

7

8 IN THE UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10

11 KEVIN M. SCHILLING, JOHN PINEDO, WILLIAM TELLEZ, on behalf of themselves
12 and all those similarly situated,

13

Plaintiffs,

Case No. 3:08-cv-00941-SI
[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION

14 vs.

15 TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER JEFF BRUMMETT, and
16 DOES 1 through 100,

17

Defendants.

18 The court has received and reviewed the parties Proposed Notice of Pendency of Class

19 Action and the proposed method to provide such notice and approves the language. Notice

20 shall be given within 30 days of the date of this order and published, as proposed, in Prison

21 Legal News for three successive months starting with the first issue in which publication can be

22 arranged following the date of this order.

23

DATED: 24

HON. SUSAN ILLSTON

25

JUDGE, UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

26

27

28

[PROPOSED] ORDER RE: NOTICE OF PENDENCY OF CLASS ACTION
Schilling, et al. v. TransCor, et al., USDC, Northern District, Case No. 3:08-cv-00941-SI

1

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

United States District Court For the Northern District of California

8 KEVIN M. SCHILLING, on behalf of himself

and all others similarly situated, 9

Plaintiff, 10

v. 11

TRANSCOR AMERICA, LLC, et al., 12

Defendants.

13

/

No. C 08-941 SI
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

14 Currently before the Court are the parties’ crsos motions for summary judgment. The Court held
15 argument on the motions on July 27, 2012, and having considered the arguments of the parties and the
16 papers submitted, the Court GRANTS defendants’ motion as to plaintiffs’ class claims and DENIES
17 plaintiffs’ motion.
18

19 BACKGROUND
20 1. Procedural Background
21 Plaintiffs Kevin Schilling, John Pinedo and William Tellez filed this lawsuit against TransCor
22 America, LLC (“TransCor”). TransCor is a Tennesese corporation licensed to do business in California,
23
whose business entails the transportation ofpretrial detainees and prisoners throughout the United States 24
on behalf of federal, state and local governments.1 25
Plaintiffs allege that TransCor transports pr etrial detainees and pr isoners in conditions that 26

27

1 The Second Amended Complaint also names as defendants Sgt. John Smith and Officer John

28

Brummett, employees and/or agents of TransCor who allegedly assaulted Plaintiff Schilling. Second Amended Complaint, ¶ 24.

United States District Court For the Northern District of California

1 amount to cruel and unusual punishment. Each of the named plaintiffs alleges that he was transported

2 by TransCor for more than 24 hours and subjectedto inhumane conditions during his journey, including

3 being shackled and kept sitting upright, thereby bei ng prevented from sleeping, and also deprived of

4 access to toilets and sanitation facilities2. The Second Amended Complaint alleges two class claims for

5 relief: (1) a claimunder 42 U.S.C.§ 1983 for violations of the Eighth and Fourteenth Amendments, and

6 (2) a claim under Cal. Civ. Code § 52.1 (the Bane Act)for violation of civil rights under California law.

7

On February 16, 2010, the Court granted in part plaintiffs’ motion for class certification a nd

8 certified the following classes:

9

1. A class ofall pretrial detainees and prisoners who were transported by TransCor America

LLC, its agents and/or employees between February 14, 2006 and the prese nt, and who were

10

forced to remain in restraints in the trans port vehicle for more than 24 hours without being

allowed to sleep overnight in a bed. The cla ss includes pretrial detainees and prisoners who

11

were removed from one transport vehicle and palced directly onto another, without being housed

overnight, whose com bined trip lasted m ore than 24 hours. The c lass only includes those

12

pretrial detainees and prisoners who were transported by TransCor on behalf of a state agency,

and does not include pretrial detainees and prisonres who were transported on behalf of a federal

13

agency.

14

2. A subclass of all pretrial detainees and prisoner s who were transported by TransCor

America LLC, its agents and/or employees in the State of California between February 14, 2006

15

and the present, and who were forced to remain in restraints in the transport vehicle for more

than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial

16

detainees and prisoners who were removed from one transport vehicle and placed directly onto

another, without being housed overnight, whose combined trip lasted more than 24 hours. The

17

class only includes those pretrial detainees andprisoners who were transported by TransCor on

behalf of a state agency, and does not i nclude pretrial detainees and prisoners who were

18

transported on behalf of a federal agency.

19 February 16, 2010 Order [Docket No. 110] at 18-19.

20

Defendants moved for clarification of the Court’s class certification Order and/or decertification.

21 On July 9, 2012, the Court denied that motion, and affirmed the certification of plaintiffs’ “Eighth and

22 Fourteenth Amendment claims regarding the use of restraints, lack of overnight rest, lack of access to

23 sanitation facilities and inadequate provision of food during transportation.” Docket No. 200 at 2.

24

Plaintiffs now m ove for partial sum mary judgment on plaintiffs’ first claim for relief; for

25 violation of Eight and Fourteenth Amendment rights based on TransCor’s policy and practice of: (1)

26

27

28

2 The Second Amended Complaint also contains allegations regarding inadequate provision of water and food, but plaintiffs do not rely on those allegations in moving for summary judgment.

2

United States District Court For the Northern District of California

1 keeping prisoners3 in transport vehicles for more than 24 hours, without rest overnight; (2) restraining

2 prisoners in handcuffs with black boxes, leg irons, wiast chains, and connector chains; and (3) restricting

3 prisoner’s access to toilet and sanitation facilities. Pal intiffs also move for summary judgment on their

4 second claim for relief under California’s Bane Act.

5

Defendants oppose and also cross-m ove for summary judgment, arguing that the conditions

6 plaintiffs complain of are not sufficiently serious deprivations tosupport an Eight Amendment violation,

7 but even if they were, legitimate security concerns justified those deprivations. Defendants also argue

8 that plaintiffs have failed to prove and cannot satifsy the independent “interference” requirement of the

9 Bane Act.4

10

11 2. Factual Background

12

The following fact s are not in dispute. Between February 14, 2006 to date, 5 thousands of

13 prisoners and pretrial detainees were transported by TransCor for more than 24 continuous hours on at

14 least one leg of their journeys. From 2006 though the end of 2008, TransCor operated a “hub and

15 spoke” system of prisoner transportation, providing both “Extradition Services” (typically or ders to

16 move a single prisoner from one point in the county to anot her distant jurisdiction) and “Special

17 Operations” (moves of a larger number of prisoners from one secured facility to another). Affidavit of

18 Curtiss Sullivan (“C. Sullivan Aff.,” Docket No. 95-1 at 8), ¶¶ 20, 22. Idea lly, the Extradition Trips

19 were designed to last no longer than 108 hours to en sure the crew did not violate the Departm ent of

20 Transportation’s “hours of service” regulations. Third Affidavit of Jam es Crouch (“Crouch Aff.,”

21 Docket No. 95-1 at 18), ¶ 5. Pris oners, however, could be in transit for m ore than five days. 22 Declaration of Jack Atherton (“Atherton Decl.”, Docket No. 144), ¶ 7. The trispwere designed to depart 23 from one hub, follow a circular route, and return to the same hub. Crouch Aff., ¶ 5. TransCor asserts 24

25

3 The class consists of both prisoners and pretrial detainees. However, the Court will refer to

them collectively as “prisoners.” 26

4 Plaintiffs and defendants move for sum mary judgment on all claim s except for plaintiff 27 Schilling’s individual Fourth Amendment excessive force claim.

28

5 The class period is February 14, 2006 to the present.

3

United States District Court For the Northern District of California

1 – and plaintiffs do not dispute – that for Extrad ition Services after February 1, 2006: 19% of “order

2 segments” were less than 30 hours; 39% were lessthan 36 hours; 55% were less than 42 hours; and 68%

3 were less than 48 hours. Crouch Aff., ¶ 106. The median order segment duration was 39.78 hours. Id.

4

In order to facilitate transport to a prisoner’sfinal destination, prisoners are sometimes dropped

5 off – housed or “stashed” – at correctional facilities or TransCor “hubs” overnight. When housed, the

6 facilities are expe cted to provide prisoners with medical examination, food, clothes, laundry and

7 recreation. C. Sullivan Aff., ¶¶ 23, 26. After beinghoused, the prisoners are then loaded onto different

8 transporters for the next stage of their transfer. TransCor’s goal is to “deliver all inmates within 10 days

9 of pickup,” which includes both transit and housing time. Affidavit of W. Ken Katsaris (Katsaris Aff.,

10 Docket No. 145), ¶ 3. TransCor places no limit on theamount of time a prisoner can remain in transport

11 vehicles prior to overnight housing or delivery to the destination. Id.

12

At the end of 2008, TransCor stopped Extradition Services to focus instead on local transports

13 serving correctional facilities near its hubs (Defined Services), but TransCor continues to provide its

14 Special Operations mass-transit services, directly from one location to another. C. Sullivan Af., ¶ 21;

15 Crouch Aff., ¶ 3. Special Operations are providedfor entities, including the State ofVermont and the

16 California Department of Corrections, which “reque st” that their prisoners be m oved directly from

17 origin to destination without stops.Crouch Aff., ¶ 12. Some of theseSpecial Operations trips last under

18 24 hours and some last 31 - 36 hours. Id., ¶¶ 16-18.

19

TransCor’s policy and practice is that restraints, including handcuffs, bell y chains, leg irons,

20 interconnects and black boxes, are applied to all prisoners, with the exception that pregnant women are

21 not required to wear a belly cha in or shackles. C. Sullivan Aff., ¶ 14. An “interconnect” is a chain 22 approximately two feet long that is used to connect two prisoners together. Handcuffs are attached to 23 the belly chain to prevent the prisoner from raising his or her arms. The black boxes are placed over 24 the links connecting a prisoner’s handcuffs and they restrict wrist movement. 25

26

27

28

6 26% lasted between 48 and 72 hours; 6% lasted between 72 and 96 hours and 0.25% lasted longer than 96 hours. Crouch Decl., ¶ 10.

4

United States District Court For the Northern District of California

1

TransCor’s policy and practice is to train and require Transportation Specialists7 to check the

2 prisoners’ restraints at each stop. If an inmate complains about the tightness of his or her restraints and

3 swelling is present, Transportation Specialists wil l report the incident to their supervisors and, if

4 approved, are allowed to modify the restraints, use larger restraints, use flexible Grip restraints, or even

5 remove an entire portion of the restraint system. C. Sullivan Aff., ¶ 14; Expert Report of George Earl

6 Sullivan (G.E. Sullivan Report,Docket No. 195-2 at 2)., ¶ 248. The use of the restrains at issue can lead

7 to swelling of extrem ities and num bness, as well as abrasions and lacerations in som e instances.

8 Katsaris Aff., ¶ 10; Atherton Decl., at 10. Despite TransCor’s policy of having its Transportation

9 Specialists check on prisoners’ restraints during stops, instances of excessive swelling, abrasions, and

10 skin being rubbed raw by the restraints occurred and T ransCor was aware of these instances. See

11 Plaintiffs’ Opposition at 15-16 (citing deposition testimony of former TransCor CEO). TransCor has

12 no written policy or practice stating the maximum number of hours a prisoner can be held in restraints

13 without a break. Katsaris Aff., ¶ 3.

14

Each of TransCor’s transport vehicles is divide d into compartments or cages. Prisoners are

15 locked inside the compartments and seated in leather chairs. The trnasports have televisions which show

16 movies during the day. C. Sullivan Aff., ¶ 16. Nomovies are shown between the hours of 10:00 pmand

17 6:00 am. Id. The transport vehicles have a chemical toilet on board, and prisoners are permitted to use

18 the toilet only when the vehicle is stopped and theyare escorted to the toilet by a TransCor employee,

19 along with the other prisoner they are chained to. C. Sullivan Aff., ¶ 16. Stops are made every 3.5 to

20 4 hours, and prisoners are also allowed to use thetoilet any time the transporter stops. Supp. Snell Decl.,

21 Ex. 3 at 116. Prisoners remain in restraints and arechained to one another while using the toilet. Other 22 than the toilet, prisoners do not have access to sanitation facilities on the transporters. There is no 23 running water and prisoners are provided with hand sanitizer after using the toilet and before meals. C. 24

25

7 “Transportation Specialists” are TransCor em ployees who are responsible for driving and

26 guarding the prisoners.

27

8 Four of the nine class m embers who were deposed testified that they had their restrai nts altered. See Defendants’ Exhibit 5 at 56, 59-60 (Arno restraints altered after complaint); Ex. 6 at 61

28

(Kincheloe restraints altered after complaint); Ex. 7 at 45-46 (Wright restraints altered after complaint); Ex. 15 at 115, 140 (Pinedo not fitted with a black box).

5

United States District Court For the Northern District of California

1 Sullivan Aff., ¶ 16. TransCor’s policy is not to provide prisoners withsoap, tooth brushes or the ability

2 to shave on the transporters, because of security concerns. C. Sullivan Aff., ¶ 27. During transit, the

3 prisoners are not allowed to change clothes, although if a prisoner is housed during his or her trip, the

4 prisoner’s clothes will be laundered. Id., ¶ 26.

5

TransCor’s policy is to advise prisoners against lying down in the transport vehicle to sleep, due

6 to possibility of injury and the dif ficulty of being chained to another prisone r. Katsaris Af f., ¶ 6.

7 Therefore, if prisoners sleep, they sleep sitting in their seats.Id.; see also Atherton Decl., ¶¶ 14-15. The

8 ability to sleep varies depending on the prisoner, the number of stops the transporter makes and other

9 factors. TransCor’s policy is to allow prisoners to stand up and stretch – within the lim its of their

10 restraints and dependent upon the agreement of the prisoner they are chained to – during stops. Katsaris

11 Aff., ¶ 7. Prisoners are perm itted to walk up and dow n the transporter’s aisle, two at a tim e, during

12 restroom breaks once those inmates who need to use the restroom have done so. Id.

13

The parties dispute why overnight housing was not provided. TransCor asserts that it was not

14 able to house prisoners at local detention facilitiesbecause of jail overcrowding and a lack of facilities

15 that could separately house the TransCor prisoners in appropriate accommodations. C. Sullivan Aff.,

16 ¶¶ 23-24. In particular, TransCor asserts that only onCealifornia facility, in Southern California, agreed

17 to provide housing services for TransCor prisoners. Crouch Aff., ¶ 11. As a result, TransCor secured

18 larger vehicles with “sleeper berths” for the Tranpsortation Specialists, so that TransCor could continue

19 to move the prisoners without vioal ting the Department of Transportation regulations on hours ofservice

20 for drivers. C. Sullivan Aff., ¶ 25. For its ongoing Special Operations trips, some of which last 31-36

21 hours, TransCor contends that its custom ers (State of Verm ont and California Departm ent of

22 Corrections) request and/or require that the prisonersbe delivered without stops overnight. Crouch Aff.,

23 ¶¶ 12, 19.

24

Plaintiffs contend that “contract facilities” would be readily available to house TransCor

25 prisoners overnight. Katsaris Aff., ¶ 25; Brook Decl., ¶¶ 5-6. Plaintiffsalso contend that TransCor did

26 not plan or attempt to secure overnight housing – but instead purchased larger transports with sleeping

27 berths for its own employees – to save time and avoid the need to look for overnight facilities. Snell

28 Decl., Ex. 4 (Rion Depo.) at 71-72. Plaintif fs’ affiants declare that they know of no other agency or

6

United States District Court For the Northern District of California

1 company which transports pri soners for m ore than 24 continuous hours rather than housing them

2 overnight in a contract facility. Katsaris Aff., ¶ 15;Brooks Decl., ¶ 6. Defendanst’ affiants and experts

3 do not address whether any other agencies or com panies transport prisoners for 24 continuous hours

4 without housing them overnight.

5

Plaintiffs’ affiants also contend that depriv ing prisoners of s leep for over 24 hours, keeping

6 prisoners in restraints for 24 hours, and deprivingprisoners of sanitation facilities (running water, free

7 use of a toilet) for 24 hours alone and in cobmination deprive prisoners of basic human needs and violate

8 the custodian’s duty to provide humane treatment to prisoners. Atherton Decl., at7; Katsaris Aff., ¶ 8.

9 Defendants’ expert does not address the use of restra ints and lack of overnight r est for more than 24

10 hours directly. Instead, he states:“I do not read any complaint or condition that does not comport with

11 sound correctional practices or are not within the Standard of Care.” G. E. Sullivan Report, Opinion 4.

12 TransCor’s Vice President and Chief Operating Officeasserts that the practice of transporting prisoners

13 in a vehicle or combination of vehicles in excess of 24 hours is “an acceptable and humane practice.”

14 C. Sullivan Aff., ¶ 31.

15

16

LEGAL STANDARD

17

Summary judgment is proper if the pleadings, thediscovery and disclosure materials on file, and

18 any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled

19 to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movi ng party bears the initial burden of

20 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

21 323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving

22 party will have the burden of proof at trial. The moving party need only demonstrate to the Court that

23 there is an absence of evidence to support the non-moving party's case. Id. at 325.

24

Once the moving party has met its burden, the burden shifts to the non-m oving party to “set

25 out‘specific facts showing a genuine issue for trial.’” Id. at 324 (quoting then Fed. R. Civ. P. 56(e)).

26 To carry this bur den, the non-moving party m ust “do more than sim ply show that there is som e

27 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

28 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there

7

United States District Court For the Northern District of California

1 must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v.

2 Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

3

In deciding a summary judgment motion, the Court must view the evidence in the light m ost

4 favorable to the non-m oving party and draw all justi fiable inferences in its favor. Id. at 255.

5 “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from

6 the facts are jury functions, not those of a judge . . . ruling on a m otion for summary judgment.” Id.

7 However, conclusory, speculative testimony in affidavits and m oving papers is insufficient to raise

8 genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

9 730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)).

10

11

DISCUSSION

12 1. Plaintiffs’ Federal Constitutional Claims

13

A. Legal Standard

14

The Eighth Amendment’s prohibition of cruel and unusual punishm ent requires that prison

15 officials take reasonable measures for the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 834

16 (1994). An official violates the Eighth Am endment only when two requirements are met: (1) the

17 deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately

18 indifferent to the inm ate’s safety. See id. at 834. “[O]nly those de privations denying ‘the m inimal

19 civilized measure of life’s necessities,’ are sufficiently grave to form the basis ofan Eighth Amendment

20 violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation omitted). Neither negligence nor gross

21 negligence is actionable under § 1983 in the prison context. See Farmer, 511 U.S. at 835-36 & n.4.

22

“[W]hile the eighth amendment proscribes cruel and unusual punishment for convicted inmates,

23 the due process clause of the fourteenth amendment proscribes any punishment of pretrial detainees.”

24 Redman v. County of San Diego, 942 F.2d 1435, 1440 at n.7 (9th Cir1. 991). “[E]ven though the pretrial

25 detainees’ rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide

26 a minimum standard of care for determining their rights.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,

27 1120 (9th Cir. 2003).

28

8

United States District Court For the Northern District of California

1

B. Sufficiently Serious

2

As an initial m atter, the Court is required – in light of the class def inition – to conf ine its

3 analysis to determining whether the conditions complained of inflict a constitutional deprivation iftheir

4 duration is “more than 24 hours.” As 24 hours plusone minute is the lowest common denominator for

5 the class, the Court m ust determine whether depriving prisone rs of a bed, and/or holding them in

6 restraints, and/or depriving them of sanitation facilities for 24 hours and one m inute is “sufficiently

7 serious” to amount to a constitutional deprivation. Plaintiffs – in their evidence and argument – do not

8 differentiate between prisoners transported under the challenged conditions for 24 hours plus one minute

9 and prisoners transported for longer periods of tim e. Similarly, plaintiffs’ experts do not address or

10 provide evidence regarding the im pact of the c omplained of conditions on prisoners as the tim e

11 increases above 24 hours. As such, the Court has no evidentiary basis to consider whether prisoners

12 subjected to the com plained of conditions for significantly more time than 24 hours have stated a

13 constitutional claim. But see, Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982) (“in considering

14 whether a prisoner has been deprived of his rights, courts may consider the length of time that the

15 prisoner must go without these benefits. . . . The longer the prisoner iswithout such benefits, the closer

16 it becomes to being an unwarranted infliction of pain.”).

17

Plaintiffs contend that alone or collectiv ely, transporting prisoners over 24 hours without

18 allowing for overnight sleep in a bed, while in f ull restraints and without f ree access to sanitation

19 facilities, deprives the prisoners of the basic life necessities of sleep, freedom from pain and hygiene.

20 Regarding the lack of overnight rest, plaintiffs rely on cases finding that forcing inmates to sleep on the

21 floor is suffi cient to state Eighth and Fourteenth Amendment claims. However, those cases were 22 analyzed in the context of jails and prisons where – either due to an intent to discomfort prisoners or 23 because of overcrowding – inm ates were forced to sleep on m attresses on t he floor, often in 24 inappropriate areas. See, e,g., Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996 (3d Cir. N.J. 25 1983) (forcing detainees to sleep on mattresses placed on the floor adjacent to the toilet). The Courts 26 found that there was no legitimate government justification for forcing inmates to sleep on the floor, 27 simply because there may not be sufficient capacity in the current facilities. See, e.g.,Thompson v. Los 28 Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989) (ofrcing pretrial detainee to sleep on cement floor for two

9

United States District Court For the Northern District of California

1 nights served no legitim ate governmental objective); Thomas v. Baca, 514 F. Supp. 2d 1201, 1217

2 (C.D. Cal. 2007) (“The basic humanity inherent in providing access to a bed highlights the practice of

3 forced floor-sleeping as one of the unconstitutional effects of prison overcrowding.”); see also Lyons

4 v. Powell, 838 F.2d 28, 31 (1st Cir. 1988) (“subjecting pretrial detainees to the use of a floor mattress

5 for anything other than brief emergency circumstances may constitute an impermissible imposition of

6 punishment”).

7

Here, the Court is addressing conditions on a prisonetrransport vehicle, a situation that is starkly

8 different from a brick and mortar prison. The parties do not dispute that transportation of these inmates

9 is necessary, and that some deprivations will occur because the prisoners are being transported outside

10 of secure facilities , e.g., restraints must be used for security purposes. As the Ninth Circuit recognized

11 in Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. Ariz. 2000), “[t]he circumstances, nature, and duration

12 of a deprivation of these necessities m ust be considered in determ ining whether a constitutional

13 violation has occurred.” This case, therefore, does not fall within the generally recognized prohibition

14 against forcing pretrial detainees and inmates to sleep on the floor of jails or prisons.9

15

As defendants point out, in deposition testimony, some inmates testified that they were unable

16 to sleep on the transporter, but otherssaid they were able to sleep or napS. ee Defendants’ Ex. 5 at 65-66

17 (Arno; was not able to get an hour or m ore of sleep, but could nap 20 or 30 minutes); Ex. 6 at 59

18 (Kincheloe; was able to nap); Ex. 8 at 67-68 (Cedillo; was able to nap and others able to sleep).

19 TransCor would not play movies from 10:00 p.m. through 6:00 a.m. in order to allow rest, and there is

20 no evidence that TransCor em ployees tried to prev ent inmates from sleeping during their transport.

21 Significantly, plaintiffs’ affiants do not state, or provide any support for the proposition, that sleep

22 deprivation for a 24-hour period has any significant ill effects that would cause it, alone, to constitute

23

24

9 Nor does this case fall into t he category of cases where, either by intentional conduct or by facility design, prisoners are routinely deprived of sleep. See, e.g., Keenan v. Hall, 83 F.3d 1083, 1090

25

(9th Cir. 1996) (denying motion for summary judgment because there was no “legitimate penological justification” for constant illumination of cell where prisoner was placed for six months). The Court

26

agrees with plaintiffs that defendants’ cases – addressing situations where temporary jail overcrowding forced authorities to make pretrial detainees sl eep on the floor overnight – are largely inapposite.

27

However, those cases underscore the fact that the c ontext in which the Eighth Am endment claim is raised – e.g., in emergency/temporary situations in defendants’ cases versus ongoing overcrowding in

28

plaintiffs’ cases – is important in determining whether a constitutional deprivation has occurred. Here, the Court is addressing transport vehicles during a 24-hour plus one minute time frame.

10

United States District Court For the Northern District of California

1 a significant deprivation of basic human needs.

2

Plaintiffs also argue that the use of the restraitns – leg shackles, handcuffs, belly chains and black

3 boxes to restrict wrist movement – creates an unconstitutional deprivation when used for more than 24

4 hours. Plaintiffs rel y on Hope v. Pelzer, 536 U.S. 730 (2002). There, the Suprem e Court held that

5 attaching an inmate to a hitching post for seven hours in the sun, during which time he was given water

6 only once or twice and given no access to a bathroom, was an unconstitutional deprivation under the

7 Eighth Amendment. The Court held that use of the hitching post clearly constituted an Eight

8 Amendment violation because, “[d]espite the clear lack of an em ergency situation, the respondents

9 knowingly subjected him to a s ubstantial risk of physical harm, to unnecessary pain caused by the

10 handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the

11 heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created

12 a risk of particular discomfort and humiliation,” and was “punitive treatment” amounting “to gratuitous

13 infliction of ‘wanton and unnecessary’ pain.” Id., at 738. Here, there is no evidence that the use of the

14 restraints is punitive or gratuitous. The use of theextensive restraints is a policy TransCor adopted to

15 comply with the requirements of the Jeanna Act, see 42 U.S.C. § 13726,10 and to ensure security while

16 transporting prisoners outside of secure facilities, where accidents and other events that heighten the risk

17 of prisoner escape can occur.

18

Plaintiffs also rely on Myers v. Transcor America, LLC 2010 WL 3824083 (M.D.Tenn. 2010).

19 In Myers, a prisoner brought an Eighth Amendment excessive force claimbased on TransCor’s “custom

20 of placing and leaving inmates in restraints in such a manner that the restraints caused inmates to suffer

21 unnecessary pain and physical injury which were obvious and apparent and for which no relief wa s

22 offered by the transport officers.” Id., *4. The plaintiff and other affiants subm itted evidence that

23 although they each suffered extreme swelling, bleeding and other obvious ill effects fromthe restraints,

24 the TransCor employees ignored the complaints and failed to take any action to provide relief. Here,

25 plaintiffs’ claim is that the use of the restraintsfor 24 hours, by itself, is the constitutional deprivation.

26 Plaintiffs do not allege – or submit any evidence – that use of the restraintsfor 24 hours will necessarily

27

28

10 Jeanna’s Act subjects “private prisoner tranps ort companies” to various regulations “in order to enhance public safety.” 42 U.S.C. § 13726(5).

11

United States District Court For the Northern District of California

1 cause extreme swelling, bleeding, or other injuries on a classwide basis. Additionally, while there is

2 evidence that some of the class members’ restraints were too tight and/or caused swelling, chafing, and

3 abrasions there are no allegations that TransCor had a customor policy of ignoring prisoner complaints

4 about excessive swelling or abrasions from ill-fitting restraints. The Myers analysis of the individual

5 excessive force claim, therefore, is inapposite.

6

In Bain v. Transcor America, LLC , 2009 WL 562586 (M.D.Tenn. 2009), the Court denied a

7 motion to dismiss plaintiff’s Eighth Amendment claims that he “suffered pain for over 50 straight hours

8 while restrained, was denied prescribed medication, and suffered swelling, bruising, and lacerations on

9 his wrists, legs, and ankles which did not abate for nearly two weeks.” Id., *7. The Court noted that

10 plaintiff had alleged that the particular restraints , the tightness of the restraints, and their ref usal to

11 loosen any restraints were mandated by TransCor’s policies. Here, the only policy at issue is the use

12 of restraints. There are no classwide allegations of use of “overly tight” restraints or an alleged policy

13 to refuse to loosen restraints. Bain, therefore, is likewise inapposite.11

14

The Court finds that use of the restraints at issue for a period exceeding 24 hours, by itself and

15 given the context of transporting prisoners outside of secure f acilities, is not an unconstitutional

16 deprivation under the Eighth Amendment. For example, in Key v. McKinney, 176 F.3d 1083, 1085 (8th

17 Cir. 1999) a plaintiff was put in restraints for 24 hours as a disciplinary measure; he complained that

18 restraints made it difficult to sleep and were painful, that it was difficult to take care ofbodily functions,

19 and that his requests to have handcuffs loosened were denied. The Court found that he failed to state

20 an Eighth Amendment claim. The Court noted that he was provided with bedding, food, or bathroom

21 facilities, and he was checked on by a nurse and guard at regular intervals. The Court concluded that, 22 “[w]hile the shackles m ade it more difficult to s leep and relieve himself, he has not shown that he 23 suffered a serious deprivation of ‘the minimal civilized measure of life’s necessities.’” Id., at 1086. 24

25

11 Plaintiffs also rely on Anderson-Bey v. District of Columbia , 466 F. Supp. 2d 51 (D.D.C.

26

2006). In that case, the Court denied sum mary judgment based on plaintiffs’ allegations that “each prisoner’s restraints were applied far too tightly,with the handcuffs cutting off circulation and digging

27

into and sometimes cutting the skin. . . . The restraints remained too tight throughout the trip, despite the prisoners’ complaints.” Id., at 58-59. Here, the complaint is that the restraints were applied, not that

28

they were applied too tightly or otherwise manipulated in order to harm the plaintiffs. Similarly, the allegation that prisoner complaints were ignored, is not made on a class-wide basis here.

12

United States District Court For the Northern District of California

1 Here, while the plaintiffs did not have bedding, they had access to food, drinking water, and the toilet

2 (restricted to stops). The prisoners also had their restraints checked on by TransCor employees during

3 stops and could have asked employees to loosen the restraints if significant problems occurred.

4

As to the claims of inadequate access to sanitation, the Court finds that the allegations do not

5 result in a constitutional deprivation for a period of24 hours plus one minute. Plaintiffs do not dispute

6 that the transports stopped every 3.5 to4 hours. Plaintiffs do not disputethat prisoners were able to use

7 the toilet during any of the stops, except for plaintiff Pinedo’s com plaint that TransCor em ployees

8 refused to remove his restraints so that he could defecate. Snell Decl., Ex. I at 7. 12 There were

9 situations where the chemical toilet on board was dirty and not cleaned. However, the question before

10 the Court is not whether particul ar class members suffered a constitutional deprivation because they

11 were unable to use the toilet at a specific time. Instead, the question is whether TransCor’s policy of

12 not allowing prisoners at-will use of the toilets, instead restricting use to every 3.5 to 4 hours, and

13 TransCor’s failure to provide running water, soap, toothbrushes and a change of clothes over a period

14 of 24 hours plus one m inute imposes a constitutiona l deprivation of m inimal hygiene. The Court

15 concludes it does not.13

16

Plaintiffs’ reliance on Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985) is misplaced. There,

17 the Ninth Circuit found “that various aspects of thepenitentiary’s ‘old, dilapidated, and ill-maintained’

18 physical plant,” including unsatisfactory plumbing, vermin infestation and unavailable or inadequate

19 cell cleaning supplies violated the Eighth Am endment. Id., at 783. Similarly, in Keenan v. Hall, 83

20 F.3d 1083, 1091 (9th Cir. 1996), the Ninth Circuit heldthat requiring an indigent prisoner to purchase

21 his own hygiene supplies created a “sanitation” claim under the Eighth Am endment, precluding 22 summary judgment. These cases are wholly inapposite to the case at hand, which deals with a 24-hour 23

24

12 Pineda’s testimony is ambiguous on why he was not allowed to defecate. The interrogatory

25

responses cited by plaintiffs reference Pineda’s complaints about “noise” and not being let off the transport, in conjunction with his inability to defecate. Id. at 5, 7-10. Another class member testified

26

that because the toilet was locked while the vehiclewas in transit, fellow passengers soiled themselves. Snell Decl., Ex. LL.

27

13 The Court notes that a lack of access to running water and other hygiene measures for longer

28

periods of time raise different questions in terms of deprivation of rights, but the Court cannot reach those questions here in light of the posture of and evidence in this case.

13

United States District Court For the Northern District of California

1 plus one minute deprivation while prisoners are in transit. But see Walker v. Sumner, 14 F.3d 1415,

2 1421 (9th Cir. 1994) (denial of adequate clothing might constitute Eight h Amendment violation);

3 Toussaint v. McCarthy, 597 F. Supp. 1388, 1409 (N.D. Cal. 1984) (l“eaking pipes and fixtures, clogged

4 drains, rotting sewer lines, and other plumbing and sewage deficienciesare a major cause of the serious

5 health hazards”).14

6

Plaintiffs argue that even if none of the three conditions in isolation amounts to a constitutional

7 deprivation, the combination of them creates a “mutually enforcing effect” that deprived plaintiffs of

8 the basic human needs of sleep and adequate shelter. Plaintiffs’ Motion at 18. Plaintiffs rely onWilson

9 v. Seiter, 501 U.S. 294, 304 (1991). There, the Suprem e Court explained that “[s]ome conditions of

10 confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do

11 so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single,

12 identifiable human need such as food, warmth, or exercise – for example, a low cell temperature at night

13 combined with a failure to issue blankets.” Here, however, the sanitation conditions complained of do

14 not combine – either with the lack of sleep or the use of restraints – to cause the deprivation of a single

15 identifiable need over the 24-hour plus one minute period.

16

The combination of use of restraints and being continuously transported for 24 hours or more

17 has a nexus with respect to a prisoner’s ability torest comfortably during a 24-hour period, as both sides

18 admit that the restraints are uncom fortable. However, as noted above, pl aintiffs do not dispute that

19 TransCor’s policy requires TransCor employees to check on the restraints for fit and for obvious signs

20

21

14 The two class certification cases relied on by plaintiffs are not apposite to the question now before this Court -- that is, the determination on summary judgment whether plaintiffs have shown that

22

the conditions inf licted on them constitute unconstitutional deprivations. Those cases are also distinguishable on their facts. InTyler v. Suffolk County, 253 F.R.D. 8 (D. Mass. 2008), prisoners were

23

housed in cells that were not equipped with toilets orsinks. When the inmates were locked in at night, they could use the toilets only ifthey were permitted to do so by the guards. The inmates alleged “that,

24

due to inattention (and, possibly, malice) of the guards on duty, their bathroom access was unreliable. . . .” Id., at 9. Here, however, the issue is not inattentoin or malice of the guards, but instead the policy

25

of allowing inmates to use the toilet only every 3.5 to4 hours during stops. Moreover, given the context at issue – prisoners being m oved outside secure facilities, transporters in m otion, and prisoners in

26

restraints – the Court does not findTyler persuasive for purposes of determining the merits of plaintiffs’ deprivation claim. Similarly, while the Court in Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill.

27

2005), indicated it would certify a class of pretrial detainees who were held for an “unlawful period of time (greater than 16 hours) in interrogation room s that lacked the m ost basic amenities,” including

28

access to food service and sleepingfacilities, the case does not provide support for plaintiffs’ summary judgment claims here.

14

United States District Court For the Northern District of California

1 of harm every time transporters stop. If a prisoner complains about discomfort and there are signs of

2 swelling or ill-f itting restraints, TransCor em ployees are authorized, with approval f rom their

3 supervisors, to take steps to address that discomfort. The Court finds that even in combination, the lack

4 of sleep overnight and use of full restraints – with periodic checks – does not constitute an

5 unconstitutional deprivation when applied for 24 hours plus one minute. See, e.g., Key v. McKinney,

6 176 F.3d 1083 at 1085.

7

For the foregoing reasons, the Court finds that th e conditions plaintiffs com plain of – in t he

8 context of transportation of prisoners and over a24-hour plus one minute period – do not, without more

9 and on a class-w ide basis, constitute unconstituti onal deprivations under the Eighth or Fourteenth

10 Amendments. To be clear, the Court does not find that the conditions alleged, if imposed for periods

11 exceeding 24 hours or if im posed in different manners or with specific injuries, could not constitute

12 unconstitutional deprivations to individual prisoners . As a class–wide m atter, however, and on the

13 record presented, the Court does not ifnd that plaintiffs have established or can establish a constitutional

14 violation.15

15

16 2. Plaintiffs’ Bane Act Claims

17

California’s Bane Act, California Civil Code§ 52.1, provides a cause of action for interference

18 with constitutional rights. However, as the Court has granted defendants’ motion for summary judgment

19 finding that the plaintif fs have not dem onstrated classwide constitutional deprivations by being

20 subjected to the complained of conditions for 24 hours plus one minute, plaintiffs’ classwide Bane Act

21 claims must likewise fail. 22

23

24

25

26

27

15 In light of the above conclusion, the Court need not reach the issue of defendants’ deliberate

28 indifference or penological necessity.

15

United States District Court For the Northern District of California

1

CONCLUSION

2

For the foregoing reasons and for good cause s hown, the Court hereby DENIES plaintiffs’

3 motion for partial summary judgment and GRANT S defendants cross-m otion for partial sum mary

4 judgment on plaintiffs’ class claims.16

5

6

IT IS SO ORDERED.

7

8 Dated: August 8, 2012

9

SUSAN ILLSTON

10

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

16 Defendants also move for summary judgment as to the claims of named plaintiff William Tellez. Defendants argue that Tellez was a resident of Nevada when he was arrested in 2002, and

26

therefore, even though he was im prisoned in California during early February 2006 – when his last transport by TransCor occurred – he is not entitled totolling under California’s Code of Civil Procedure

27

§ 352.1. Compare Defendants’ Cross-Motion at 1, fn. 1 with Plaintiffs’ Opposition at 23. However, neither side provides the Court with any authority onhow the residence of a prisoner is determined for

28

purposes of applying a statute of limitations defense. Therefore, defendants’ motion as to any individual claim plaintiff Tellez may have is DENIED.

16

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 KEVIN M. SCHILLING, JOHN PINEDA, WILLIAM TELEZ, on behalf of themselves and
9 all others similarly situated,

10

Plaintiffs,

No. C 08-941 SI
ORDER ON PLAINTIFFS’ MOTION TO AMEND

United States District Court For the Northern District of California

11 v.

12 TRANSCOR AMERICA, LLC, et al.,

13

Defendants.

/

14

15

Currently before the Court is plaintiffs’ motion to amend. That motion is currently scheduled

16 for hearing on O ctober 12, 2012. Purs uant to Civil Local Rule 7-1(b), the C ourt finds this matter

17 appropriate for resolution withoutoral argument and hereby VACATESthe hearing. Having considered

18 the papers submitted, and for good cause shown, the Court hereby DENIES plaintiffs’ motion.

19

On August 8, 2012, the Court granted defendants’ motion for partial summary judgment as to

20 the class claims asserted in this case. 1 In that Order, the Court found that as a m atter of law, the

21

22

1 In February, 2010, on plaintiffs’ motion, the Court certified the following classes:

23

1. A class of all pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees between February 14, 2006 and the present, and who were

24

forced to remain in restraints in t he transport vehicle for m ore than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial detainees and prisoners who

25

were removed from one transport vehicle and placed directlyonto another, without being housed overnight, whose combined trip lasted m ore than 24 hours. The class only includes those

26

pretrial detainees and prisoners who were transported by TransCor on behalf of a state agency, and does not include pretrial detainees and prisonres who were transported on behalf of a federal

27

agency.

28

2. A subclass of all pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees in the State of California between February 14, 2006

United States District Court For the Northern District of California

1 conditions of confinement challenged by plaintiffs – in the context of transportation of prisoners, over

2 a period of 24 hours or m ore – did not, on a cl ass-wide basis and w ithout more, constitute

3 unconstitutional deprivations under the Eighth or Fourteenth Amendments. Docket No. 205 at 15.

4

A month later, plaintiffs m oved to am end/correct the Court’s Febr uary 16, 2010 class

5 certification order pursuant to Federal Rule ofCivil Procedure 23(c)(1)(C). Plaintiffs ask the Court to

6 certify subclasses of plaintiffs “based on the number of days an inmate was continuously transported”

7 by defendants and to add four subclass representatives.2 Defendants oppose that motion, arguing that

8 plaintiffs should not – after having sum mary judgment denied based on the class definition they

9 proposed – get a second bite at the apple. Defendants argue that allowing amendment would severely

10 prejudice defendants.

11

The Court has considered the parties’ arguments and DENIES plaintiffs’ motion. As an initial

12 matter, the Court is not convinced that the motion to amend should be considered pursuant to Rule 23.

13 While Rule 23 provides that “[a]n order that grants or denies class certification m ay be altered or

14 amended before final judgment,” the 2003 Advisory Com mittee notes suggest that the Com mittee’s

15 concern in removing “decision on the merits” and substituting “before final judgm ent” was to allow

16 district courts flexibility to amend class definitions following a determination of liability.3 Here, there

17 was a determination of no liability for the class as defined by the Court on plaintiffs’ request. While

18

and the present, and who were forced to remain in restraints in the transport vehicle for more

19

than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial

detainees and prisoners who were removed from one transport vehicle and placed directly onto

20

another, without being housed overnight, whose combined trip lasted more than 24 hours. The

class only includes those pretrial detainees andprisoners who were transported by TransCor on

21

behalf of a sta te agency, and does not include pretrial detainees and prisoners who were

transported on behalf of a federal agency. 22

February 16, 2010 Order [Docket No. 110] at 18-19. 23

2 Plaintiffs did not provide the Court with exact descriptions of their proposed subclasses. In 24 the motion, plaintiffs propose subclasses for class members who were “on a vehicle in restraints for two,

25

three, four and more than four days.” Motion at 6. In Reply, plaintiffs describe their proposed subclasses as follows: “inmates who were transportedfor more than one, two, three and four consecutive

26 days.” Reply at 14.

27

3 See 2003 Advisory Committee Notes (“The authority to amend an order under Rule 23(c)(1) before final judgment does not restore the practice of ‘one-way intervention’ that was rejected by the

28

1966 revision of Rule 23. A determination of liability after certification, however, may show a need to amend the class definition. Decertification may be warranted after further proceedings.”

2

United States District Court For the Northern District of California

1 plaintiffs cite a number of cases in support of theri request to amend under Rule 23, none of those cases

2 addresses the situation at issue here: where the district court had granted defendants’ m otion for

3 summary judgment on plaintiffs’ class claims, and that decision had not been reversed by the appellate

4 court.

5

The Court recognizes its responsibility to continually review the appropriateness of a certified

6 class in light of developm ents subsequent to class certification. Here, however, the only relevant

7 development was the Court’s determ ination that plaintiffs could not dem onstrate a constitutional

8 violation on their claims as a class-wide matter. This was not a situation where the evidence or facts

9 adduced as the litigation progressed demonstrated that the class certified was in need ofredefinition or

10 decertification. But see Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983) (“The definition of

11 a class is reviewable only for abuse of discretion. Under Rule 23 the district court is charged with the

12 duty of monitoring its class decisions in light of the evidentiary development of the case. The district

13 judge must define, redefine, subclass, and decertify asappropriate in response to the progression of the

14 case from assertion to facts.”) (emphasis added). The Court notes that plaintiffs wholly failed to argue

15 or provide evidence on either their motion or defendants’ motion for summary judgment, that subclass

16 differentiation might be appropriate. For example, plaintiffs’ experts stated only that the conditions

17 challenged by plaintiffs violated each class m embers’ rights at the 24 hours plus one m inute period.

18 There was no evidence or expert opinion that the C ourt could rely on t o, for example, find that a

19 constitutional violation had been demonstrated for class members who were subject to the complained

20 of conditions for other periods of time, such as two or more days.

21

In their Reply, pl aintiffs contend that am endment is also appropriate under Rule 15(a). In

22 determining whether to gra nt leave to amend under Rule 15(a), the Court should consider various

23 factors, including undue delay, bad faith or dilatory motive on the part of the movant, repeated failure

24 to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

25 of allowance ofthe amendment, and futility of amendment. See Eminence Capital, LLC v. Aspeon, Inc.,

26 316 F.3d 1048, 1052 (9th Cir. 2003). The “consideratoin of prejudice to the opposing party,” however,

27 carries the greatest weight. Id. Moreover, it is important to recognize that summary judgment has been

28 entered against plaintiffs on their class claim s. As the Ninth Circuit has recognized, in a case relied

3

United States District Court For the Northern District of California

1 heavily on by plaintiffs:

2

‘[A] court ordinarily will be reluctant to allow leave to amend to a party against whomsummary

judgment has bee n entered . . . .’ C. W right, A. Miller & M. Kane, Federal Practice and

3

Procedure § 2712 (2d ed. 1983). We note that

4

much of the value of sum mary judgment procedure in the cases for which it is

appropriate . . . would be dissipated if a pa rty were free to rely on one theory in an

5

attempt to defeat a m otion for summary judgment and then, should that theory prove

unsound, come back long thereafter and fight on the basis of some other theory. 6

Nguyen v. United States, 792 F.2d 1500, 1503 (9th Cir. 1986) (quotingFreeman v. Continental Gin Co., 7
381 F.2d 459, 469-70 (5th Cir. 1967).4 8

The potential need to distinguish among subclasses should have been clear since the inception 9

of this case. The fact that theimpact of the conditions-of-confinement complained of changes over time 10

is obvious; this is likely why plaintiffs suggested a class cons isting of inm ates subjected to these 11

conditions for 24 hours, and not, for example, 18 or 20 hours. As defendants point out, plaintiffs have 12

had discovery in their possession since 2009 showing the duration of the trips for each class member. 13

Plaintiffs made a strategic decision to seek class-wide relief for one class of all inmates transported for 14

24 hours or more. The Court is wary of allowing amendment at this juncture simply because plaintiffs’ 15

strategy did not work. 16

More importantly, the Court finds that defendant will suffer prejudice if the Court were allow 17

plaintiffs to amend the class definition and add four new subclass representatives. Defendants would 18

need to redepose all the individual plaintiffs previously deposed, to delve into how the length of their 19

various transports impacted them and whether a serious deprivation of a basic life necessity occurred 20

at a particular point during each of their transports.Moreover, expert disclosures and reports occurred 21

on April 6, 2012 and rebuttal reports were disclose d May 4, 2012. If am endment were allowed, the 22

23

24

25

26

4 In Nguyen, because the district court did not follow the Ninth Circuit’s i nitial mandate

27

directing entry of summary judgment for defendants – but instead allowed pl aintiffs to amend – the Ninth Circuit remanded the case to district court for a second time, directing that summary judgment

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be entered for defendant and directni g the district court to “reconsider” its prior order granting plaintiffs leave to amend.

4

United States District Court For the Northern District of California

1 parties would have to am end their expert reports, if not the designations of experts them selves.5

2 Plaintiffs, in particular, would have to secure new or additional expert opinions on when the conditions

3 complained of amount – over the course of time – to unconstitutional deprivations, since those opinions

4 were missing from plaintiffs’ m otion for par tial summary judgment and opposition to defendants’

5 motion for partial summary judgment.

6

In these circumstances, in litigation that has been pending since 2008 and is just over four

7 months from trial, it is not appropriate to allowufrther amendment. For the foregoing reasons, the Court

8 hereby DENIES plaintiffs’ motion to amend.6

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IT IS SO ORDERED.

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12 Dated: October 11, 2012 13

SUSAN ILLSTON United States District Judge

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5 While the parties agreed to extend the dead line to depose the parties’ experts until 60 days 25 before trial, that does not obviate the need t o prepare new opinions and reports addressing how the

26 length of time inmates are subject to the challenged conditions impacts those inmates.

27

6 Defendants have admitted that the claims of individuals who were continuously transported for more than 24 hours and one m inute survive the Court’s m otion for sum mary judgment. See

28

Defendants’ Opposition at 14, n. 9. Those individuals, therefore, are presumably free to file an action on their own behalf or on behalf of a class of those similarly situated.

5

 
 Case3:08-cv-00941-SI Document220 Filed12/12/12 Page1 of 2

1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911 Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5

Andrew C. Schwartz (State Bar No. 064578) CASPER, MEADOWS, SCHWARTZ & COOK

6

A Professional Corporation California Plaza

7

2121 North California Blvd., Suite 1020 Walnut Creek, California 94596

8

Telephone: Facsimile:

(925) 947-1147 (925) 947-1131

9 E-Mail:

schwartz@cmslaw.com

10

Karen L. Snell (State Bar No. 100266) Attorney at Law

11

102 Buena Vista Terrace San Francisco, California 94117

12

Telephone: Facsimile:

(415) 225-7592 (415) 487-0748

13 E-Mail:

ksnell@snell-law.com

14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 KEVIN M. SCHILLING, JOHN PINEDO,

18

WILLIAM TELLEZ, on behalf of themselves and all those similarly situated,

19

Pl

aintiffs,

Case No. 3:08-cv-00941-SI
[PROPOSED] ORDER APPROVING PLAN TO PROVIDE CLASS NOTICE

20 vs.

21 TRANSCOR AMERICA, LLC, SGT. JOHN

22

SMITH, OFFICER JEFF BRUMMETT, and DOES 1 through 100,

23

Defendants.

24

On December 3, 2012, the Court presided at a case management conference in the

25 above-captioned matter. At that time, the Court considered and approved, as reasonable and

26 appropriate, the Plaintiffs’ proposal to provide notice to class members by publication in the

27 Prison Legal News.

28

1
[PROPOSED] ORDER APPROVING PLAN TO PROVIDE CLASS NOTICE Schilling, et al. v. TransCor America, LLC, et al.; United States District Court, Northern District of California, Case No. 3:08-cv-00941-SI

Case3:08-cv-00941-SI Document220 Filed12/12/12 Page2 of 2

1

It is hereby ordered that notice, substantially in the form attached to this order as

2 “Exhibit 1,” shall be published prominently in the Prison Legal News, in the first issue of the

3 publication in which such notice may be printed following the issuance of this order.

4

SO ORDERED.

5 Dated: 12/12/2012 6

7

8

_____________________________________

SUSAN ILLSTON

9

UNITED STATES DISTRICT JUDGE

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13

14

15

16

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20

21

22

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24

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27

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2
[PROPOSED] ORDER APPROVING PLAN TO PROVIDE CLASS NOTICE Schilling, et al. v. TransCor America, LLC, et al.; United States District Court, Northern District of California, Case No. 3:08-cv-00941-SI

Case3:08-cv-00941-SI Document220-1 Filed12/12/12 Page1 of 1
NOTICE OF TERMINATION OF CLASS ACTION AGAINST TRANSCOR AMERICA, LLC
TO: ALL INMATES AND DETAINEES WHO WERE TRANSPORTED BY TRANSCOR AMERICA, LLC FOR MORE THAN TWENTY-FOUR (24) HOURS CONTINUOUSLY
If you were transported by TransCor America, LLC from a jail, prison, or state hospital in restraints, remained in the vehicle for more than 24 hours, and were deprived of overnight sleep in a bed between February 14, 2006, and the present, you were a member of a class action that was recently terminated in federal court in San Francisco, California. YOU MUST NOW YOUR OWN ACTION IF YOU WANT TO PRESERVE YOUR RIGHTS. TIME IS OF THE ESSENSE SO YOU MUST PROCEED IMMEDIATELY!
WHAT HAPPENED?
A case was filed in federal court, in the District Court for the Northern District of California, on February 14, 2008, against TransCor America, LLC, by Kevin M. Schilling, John Pinedo, and William Tellez; on behalf of themselves similarly situated, alleging that the conditions of transport violated the Constitutional prohibition of cruel and unusual punishment when inmates were transported for more than 24 hours, fully restrained, and deprived of overnight sleep in a bed. The case was initially certified to proceed as a class action and the statute of limitation was then tolled for all persons in the class.
On August 8, 2012, the Court granted the defendants’ motion for summary judgment, finding that the mere fact that a person was transported, restrained, and denied overnight sleep in a bed for 24 hours did not violated the Eighth Amendment. On October 11, 2012, the Court denied plaintiffs’ motion to amend the class certification order to establish classes of persons transported for two, three, four or more days. The effect of these orders is to restart the clock ticking on the statute of limitations applicable to claims of persons who had been in the originally certified class. Those claims may be barred by the mere passage of time, unless you take immediate action to preserve your rights by filing your own action in court.
HOW DO I DETERMINE IF MY CLAIM IS BARRED?
The statute of limitations is very tricky and varies from state to state. Generally, the statute begins to run when you were injured (the date of your transport). You then have a certain amount of time to pursue your claim by filing an action in court. Sometimes, this period is extended by state statute because of confinement or disability, but these statutes vary from state to state. Sometimes, you must first exhaust administrative remedies by using the prison or jail’s grievance procedures, if available. If this class action was filed before your right to file a claim expired, the time to file was stayed or tolled until the court’s recent actions when the clock started ticking again. That’s why you must immediately consult with attorneys to find out how and when you must act in order to protect your rights.
WHAT HAPPENS IF I DO NOTHING?
If you do nothing, you will lose any right you had to seek relief, in court, for being subjected to unconstitutional treatment during transport on a TransCor America, LLC vehicle.
WHAT DO I DO IF I WANT TO PROCEED?
If you want to pursue your remedies, you must immediately consult with counsel in the state were you presently reside, in Tennessee where TransCor America, LLC has its corporate offices, or in any state through which you were transported, to determine your rights.

 
 1

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

5 KEVIN M. SCHILLING,

No. C 08-00941 SI

6 7 v.

Plaintiff,

ORDER OF DI SMISSAL UPON SETTLEMENT

8 TRANSCOR AMERICA,

9

Defendant.

/

10

United States District Court For the Northern District of California

11

The parties to the action, by their counsel, haveadvised the court that they have agreed

12 to a settlement.

13

IT IS HEREBY ORDERED that this matter is DISMISSED WITH PREJUDICE. However, that

14 if any party hereto certifies to this court, with proof of service of a copy thereon on opposing counsel,

15 within ninety days from the date hereof, that settlement has not in fact occurred, the foregoing order

16 shall be vacated and this cause shall forthwith be restored to the calendar for further proceedings.

17

18 Dated: 1/31/13 19

SUSAN ILLSTON United States District Judge

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21

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24

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26

27

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 Case3:08-cv-00941-SI Document225 Filed04/04/13 Page1 of 2

1 Mark E. Merin (State Bar No. 043849) LAW OFFICE OF MARK E. MERIN
2 1010 F Street, Suite 300 Sacramento, California 95814
3 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
4 E-Mail: mark@markmerin.com
5 Andrew C. Schwartz (State Bar No. 064578) CASPER, MEADOWS, SCHWARTZ & COOK
6 A Professional Corporation California Plaza
7 2121 North California Blvd., Suite 1020 Walnut Creek, California 94596
8 Telephone: (925) 947-1147 Facsimile: (925) 947-1131
9 E-Mail: Schwartz@cmslaw.com
10 Karen L. Snell (State Bar No. 100266) Attorney at Law
11 102 Buena Vista Terrace San Francisco, CA 94117
12 Telephone: (415) 225-7592 Facsimile: (415) 487-0748
13 E-Mail: ksnell@snell-law.com
14 Attorneys for Plaintiffs

15

16

IN THE UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

19 KEVIN M. SCHILLING, JOHN PINEDO, WILLIAM TELLEZ, on behalf of themselves
20 and all those similarly situated,

21

Plaintiffs,

22 vs.

23 TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER JEFF BRUMMETT, and
24 DOES 1 through 100,

Case No. 3:08-cv-00941-SI
STIPULATED REQUEST FOR AMENDMENT OF ORDER OF DISMISSAL UPON SETTLEMENT AND PROPOSED ORDER

25

26

On January 31, 2013, this Court entered an Order of Dismissal Upon Settlement. Doc.

27 223. The Order dismissed this matter with prejudice, based on the parties’ advisement of the

28 Court that they have agreed to a settlement. However, the parties have agreed to dismiss the

Schilling, et al. v. TRANSCOR America, LLC, et al. Stipulation Requesting Voluntary Dismissal of Class Claims

Page 1

Case3:08-cv-00941-SI Document225 Filed04/04/13 Page2 of 2

1 case in its entirety, settle only the individual claims of the three named plaintiffs, and that

2 dismissal of the case should be without prejudice solely with respect to the claims of the other

3 class members. The parties therefore stipulate and request that the Court amend the order to

4 state: (1) the claims of the three named Plaintiffs are dismissed with prejudice; (2) the action

5 itself is dismissed with prejudice, although such dismissal is without prejudice solely to the 6 claims of the other class members;1 and (3) each side is to bear its own fees and costs incurred

7 in the prosecution and defense of the action.

8 9 DATE: April 2, 2013 10

/s/ - “Andrew C. Schwartz”__________ Attorney for Plaintiffs

11 DATE: April 2, 2013 12 13

/s/ - “Dan Struck” Daniel Struck Attorney for Defendants

14

15

PURSUANT TO STIPULATION, IT IS SO ORDERED.

16

17 DATED:
18
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4/3/13

Hon. Susan Illston United States District Court Judge

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27 1 The parties agree that this Stipulation does not constitute a waiver of any argument that the 28 equitable tolling doctrine does not apply to subsequent class actions or that the expiration of
equitable tolling of the individual claims occurred on August 8, 2012.

Schilling, et al. v. TRANSCOR America, LLC, et al. Stipulation Requesting Voluntary Dismissal of Class Claims

Page 2

 
 KEVIN M. SCHILLING, on behalf of himself and all others similarly situated, Plaintiff, v. TRANSCOR AMERICA, LLC, et al., Defendants.
No. C 08-941 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2010 U.S. Dist. LEXIS 20786
February 16, 2010, Decided February 16, 2010, Filed
PRIOR HISTORY: Schilling v. Transcor Am., 2009 U.S. Dist. LEXIS 100447 (N.D. Cal., Oct. 14, 2009)
COUNSEL: [*1] For Kevin M. Schilling, Plaintiff: Andrew Charles Schwartz, LEAD ATTORNEY, Casper Meadows Schwartz & Cook, Walnut Creek, CA; Karen Leigh Snell, LEAD ATTORNEY, Karen L. Snell, Attorney at Law, San Francisco, CA; Mark E. Merin, Esq., LEAD ATTORNEY, Law Office of Mark E. Merin, Sacramento, CA.
For John Pinedo, William Tellez, Plaintiffs: Mark E. Merin, Esq., LEAD ATTORNEY, Law Office of Mark E. Merin, Sacramento, CA; Andrew Charles Schwartz, Casper Meadows Schwartz & Cook, Walnut Creek, CA.
For Transcor America LLC, Defendant: Justus C. Spillner, III, LEAD ATTORNEY, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, CA; Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA; Daniel P. Struck, Lisa S. Wahlin, PRO HAC VICE, Jones Skelton & Hochuli, P.L.C., Phoenix, AZ; Rachel Love, PRO HAC VICE, Jones, Skelton & Hochuli, Phoenix, AZ.
For Sgt. John Smith, Defendant: Daniel P. Struck, Daniel P. Struck, LEAD ATTORNEY, Jones Skelton & Hochuli, P.L.C., Phoenix, AZ; Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA; Justus C. Spillner, III, LEAD ATTORNEY, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, CA.
For Jeff Brummett, Defendant: Daniel P. Struck, [*2] LEAD ATTORNEY, Jones Skelton & Hochuli, P.L.C., Phoenix, AZ.
JUDGES: SUSAN ILLSTON, United States District Judge.
OPINION BY: SUSAN ILLSTON
OPINION
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
On February 12, 2010, the Court held a hearing on plaintiffs' motion for class certification. For the reasons set forth below, plaintiffs' motion will be GRANTED IN PART and DENIED IN PART.
BACKGROUND Plaintiffs Kevin Schilling, John Pinedo and William Tellez filed this lawsuit against TransCor America, LLC
("TransCor"). TransCor is a Tennessee corporation licensed to do business in California, whose business entails the transportation of pretrial detainees and prisoners throughout the United States on behalf of federal, state and local governments. Plaintiffs allege that TransCor transports pretrial detainees and prisoners in conditions that amount to cruel and unusual punishment. Each of the named plaintiffs alleges that he was transported by TransCor for more than 24

hours and subjected to inhumane conditions during his journey, including being shackled and kept in a cage, and deprived of access to regular food, water, and bathrooms. The second amended complaint alleges two class claims [*3] for relief: (1) a claim under 42 U.S.C. § 1983 for violations of the Fourth, Eighth and Fourteenth Amendments, and (2) a claim under Cal. Civ. Code § 52.1, for violation of civil rights under California law.
The evidence shows that between February 14, 2006 and July 21, 2009, 1 thousands of prisoners 2 were transported for more than 24 continuous hours on at least one leg of their journeys. Plaintiffs assert that some of these prisoners were also picked up by a second vehicle, and transported for an additional period of more than 24 continuous hours. According to TransCor, prisoners in transit for more than 24 hours are transported on 19-, 23-, or 30-passenger transporters. 3 The 19- and 23-passenger transporters are staffed with four "transportation specialists," and the 30-passenger transporters are staffed with five specialists. Each crew is assigned to a 5-day transport, which originates from and returns to the same hub location. During a 5 day trip, prisoners are picked up and dropped off at various correctional facilities. Prisoners will sometimes be dropped off at a hub before reaching their final destination, and TransCor states that its goal is to "deliver all inmates within [*4] 10 days of pickup," which includes both transit and housing time. Def's Ex. 8 at 114-15; Ex. 9 at 18-19.
1 The class period is February 14, 2006 to the present. 2 The parties dispute whether TransCor's records can be interpreted as showing how many prisoners were transported, as opposed to the number of "instances of transport." According to TransCor, one prisoner could have multiple "instances of transport." In any event, there is no dispute that TransCor transported thousands of prisoners during the class period. 3 There are also some prisoners transported on vans. That issue is discussed infra.
TransCor's policy and practice is that restraints, including handcuffs, belly chains, leg irons, interconnects and black boxes, are applied to all prisoners, with the exception that pregnant women are not required to wear a belly chain or shackles. An "interconnect" is a chain approximately two feet long that is used to connect two prisoners together. Handcuffs are attached to the belly chain to prevent the prisoner from raising his or her arms. The black boxes are placed over the links connecting a prisoner's handcuffs, and they restrict wrist movement.
Each TransCor transport vehicle is divided [*5] into compartments, or cages. Prisoners are locked inside the cages. Most transport vehicles have a toilet on board, and prisoners are permitted to use the toilets only when the vehicle is stopped and they are let out of their cage and escorted to the toilet by a TransCor employee. TransCor asserts that stops are made for bathroom breaks every 3 to 4 hours, and that prisoners are also allowed to use the restroom any time the transporter stops for a pick up or a drop off. Prisoners remain in restraints and are chained to one another while using the toilet. Prisoners are advised against lying down in the transport vehicle, and if they sleep, they sleep sitting in their seats.
The parties dispute the extent to which prisoners are allowed to exercise. Plaintiffs assert that when the vehicle is stopped, prisoners are sometimes allowed to stand up and stretch, to the extent that they can in their restraints and while chained to one another. TransCor asserts that prisoners are encouraged to stand up and stretch during stops, and that prisoners are permitted to walk up and down the transporter's aisle, two at a time, during restroom breaks once those inmates who need to use the restroom have [*6] done so.
Prisoners are provided with "fast food" meals during a transport. TransCor asserts that water is available to prisoners on all transporters at any time upon request.
TransCor asserts that prisoners are issued TransCor uniforms upon boarding a transporter, while plaintiffs assert that prisoners are not given a change of clothes. 4 It is undisputed that there is no running water on the transporters, and prisoners are not allowed to brush their teeth or shave. TransCor asserts that prisoners are provided hand sanitizers and hand wipes to use after using the bathroom and before eating.
4 TransCor asserts that prisoners who are staying overnight at a hub are permitted to shower, shave, and wash their clothes. However, these prisoners are not members of the proposed class or subclass.
LEGAL STANDARD
The decision as to whether to certify a class is committed to the discretion of the district court within the guidelines of Federal Rule of Civil Procedure 23. See Fed. R. Civ. P. 23; see also Cummings v. Connell, 316 F.3d 886, 895 (9th Cir. 2003). A court may certify a class if a plaintiff demonstrates that all of the prerequisites of Federal Rule of Civil

Procedure 23(a) have been met, and [*7] that at least one of the requirements of Federal Rule of Civil Procedure 23(b) have been met. See Fed. R. Civ. P. 23; see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
Rule 23(a) provides four prerequisites that must be satisfied for class certification: (1) the class must be so numerous that joinder of all members is impracticable, (2) questions of law or fact exist that are common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a).
A plaintiff must also establish that one or more of the grounds for maintaining the suit are met under Rule 23(b), including (1) that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) that common questions of law or fact predominate and the class action is superior to other available methods of adjudication. See Fed. R. Civ. P. 23(b).
In determining the propriety of a class action, the question is not whether the plaintiffs [*8] have stated a cause of action or will prevail on the merits, but, rather, whether the requirements of Rule 23 are met. See Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974). The Court is obliged to accept as true the substantive allegations made in the complaint. See In re Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir. 1982); see also Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Therefore the class order is speculative in one sense because the plaintiff may not be able to later prove the allegations. See Blackie, 524 F.2d at 901 n. 17. However, although the Court may not require preliminary proof of the claim, it "need not blindly rely on conclusory allegations which parrot Rule 23 requirements. Courts may also consider the legal and factual issues presented by plaintiff's complaint." 2 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, 7.26 (4th ed.2005). Sufficient information must be provided to form a reasonably informed judgment on each of the requirements of Rule 23. See Blackie, 524 F.2d at 901 n. 17. In order to safeguard due process interests and the judicial process, [*9] the Court conducts an analysis that is as rigorous as necessary to determine whether class certification is appropriate. See Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 (9th Cir. 2005); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982).
DISCUSSION
Plaintiffs seek to certify a class of "all pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees, and forced to remain in the transport van for more than 24 hours, whose claims are timely under California law, including the tolling provisions of California Code of Civil Procedure sections 352 and 352.1." Second Amended Compl. P 18. Plaintiffs also seek to certify a subclass of pretrial detainees and prisoners who were transported in California. Id. P 19.
Defendants oppose class certification on numerous grounds. First, defendants contend that the proposed class is not objectively ascertainable, and they raise specific objections to the inclusion of particular types of inmates in the proposed class and subclass. Second, defendants contend that the named plaintiffs are not typical or adequate. Third, defendants argue that while there are some common legal and factual issues, [*10] individual issues predominate such that class certification is not appropriate. Fourth, defendants argue that a class action is not a superior method of adjudication because of manageability problems and the interest of class members in pursuing individual actions. Finally, defendants contend that plaintiffs' claims under the California Tom Bane Civil Rights Act cannot be certified because that statute only provides for individual actions.
I. Challenges to scope and definition of class and subclass
A. "Objectively ascertainable" and tolling
Defendants contend that the proposed class and subclass are not objectively ascertainable "to the extent they are defined by prisoners falling within the tolling provision of [California Code of Civil Procedure] § 352." Section 352 tolls the time to file a claim if the claimant was "under the age of majority or insane" at the time the claim accrued. Cal. Code Civ. Proc. § 352. Defendants argue that while a class member's age is objectively ascertainable, the Court would nevertheless be required to conduct individualized determinations about an inmate's length of minority status and release date. Defendants argue that making determinations about a class [*11] member's insanity is even more complicated because it would require an inquiry into each person's medical history and evidence that he or she was "incapable of caring for his or her property or transacting business or understanding the nature or effects of his or her acts" at the time of the transport. Alcott Rehab. Hosp. v. Superior Court, 93 Cal. App. 4th 94, 101, 112 Cal. Rptr. 2d 807 (2001).

Defendants argue that simply because a prisoner was picked up or dropped off at a hospital for the mentally ill does not mean that the prisoner was "insane" under Section 352, because a finding of insanity requires an inquiry into each person's medical history, and evidence that he was "incapable of caring for his or her property or transacting business or understanding the nature of his or her acts" at the time of transport. Alcott Rehab. Hosp. v. Superior Court, 93 Cal. App. 4th 94, 101, 112 Cal. Rptr. 2d 807 (2001). Plaintiffs respond that this standard -- "incapable of caring for his or her property or transacting business or understanding the nature of his or her act" -- is an objective one, and that "while lay opinion may or may not be sufficient to establish the requisite mental disability, the expert reports used to justify the [*12] potential plaintiffs' confinement should be available, and can be obtained during the claims process." Plaintiffs' Reply at 3:7-9.
The Court agrees with defendants that including inmates who were transported prior to the class period but whose claims have been tolled raises significant ascertainability problems. To determine whether a putative class member's claim is timely, the Court would need to evaluate each person's length of insanity or minority status, as well as prison release date. With regard to those persons whose claims are tolled on account of insanity, the tolling analysis would involve the further individualized inquiry about the degree and nature of the person's mental illness. The Court finds it appropriate to define the class to include only those pretrial detainees and prisoners who were transported between February 14, 2006 and the present because this class period will encompass all timely claims and is precise, objective and ascertainable.
B. Federal prisoners
Next, defendants contend that the proposed class and subclass cannot include federal inmates because § 1983 only authorizes claims against state actors, and not against entities acting under color of federal [*13] law. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) ("There is no valid basis for a claim under section 1983, in that DalyMurphy's allegations are against federal officials acting under color of federal law."). However, as plaintiffs correctly note, the issue is not whether a potential class member was a federal or state inmate, but rather whether TransCor was acting on behalf of a state or federal agency when transporting inmates. Plaintiffs provide the example of plaintiff William Tellez, who was transported from the Federal Penitentiary in Atwater, California, to the Las Vegas Metro Police Department pursuant to a writ issued on behalf of the Las Vegas Metro Police Department. TransCor's Order Detail for that transport states that the "customer" was the Las Vegas Metro Police Department. Snell Decl. Ex. S at 1. The Court agrees with plaintiffs that because the "customer" is identified on each prisoner's Order Detail, the determination of whether TransCor was acting on behalf or a state or federal agency can easily be made during the claims process.
C. Administrative remedies
Defendants also argue that the proposed class and subclass cannot include prisoners who failed [*14] to exhaust administrative remedies, as required by the Prison Litigation Reform Act. The PLRA requires that prior to bringing an "action with respect to prison conditions under section 1983," a prisoner confined in any jail or prison must exhaust "such administrative remedies as are available." 42 U.S.C. § 1997e(a). However, administrative exhaustion is not required "when no pertinent relief can be obtained through the internal process." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005); see also Kaemmerling v. Lappin, 553 F.3d 669, 675, 384 U.S. App. D.C. 240 (D.C. Cir. 2008) (the Act's exhaustion requirement does not apply in a case "in which there is no administrative process to exhaust."). Because the failure to exhaust is an affirmative defense, defendants have the burden of raising and proving that an administrative remedy is available. Id. at 936.
Plaintiffs contend that the evidence relied on by defendants fails to prove that an administrative remedy was available to plaintiffs. The Court agrees. Defendants have submitted excerpts from the depositions of Sondra Pedigo, who was designated by TransCor as the person most knowledgeable about prisoner complaints, and Charles Westbrook, TransCor's Director [*15] of Operations. Ms. Pedrigo testified that there is "not a standard form for a prisoner to make a complaint," and that "Normally, if there is a prisoner complaint, they'll wait until they get to their facility they're being dropped off at, and that's where they'll make their complaint. And then once they make that complaint, then that's when we get a phone call in our corporate office from that facility." Snell Supp. Decl. Ex. HH (Pedigo depo. at 171:14-24). Ms. Pedigo did not know whether records were kept of those complaints. Id. at 171:25-172:7. Mr. Westbrook testified that he has never seen any complaints, and that "if [prisoners] have any complaints, what they're told is, once you get to your facility -- once you get to your destination, you can file a grievance at that point." Def's Ex. 11 (Westbrook depo. at 42:12-14). When asked, "Do you know what happens to prisoner grievances that may be filed at the institutions to which they are transported?," Mr. Westbrook answered, "Again, sir, that's not my field." Id. at 42:15-19. Defendants

have also submitted the deposition testimony of Fred Wisdom, who trains TransCor employees, and who testified that he trains employees to record [*16] prisoner complaints on incident reports, which are then sent to headquarters. Def's Ex. 6 (Wisdom depo. at 24:1-25:1). This evidence falls far short of showing that there was an internal TransCor grievance process available to inmates who had complaints about their transports. To the extent defendants assert that prisoners should exhaust their administrative remedies by filing complaints at the institutions to which they are dropped off or picked up, TransCor has made no showing that the institutions would be able to address or remedy the alleged deficiencies in TransCor's policies and procedures. Cf. Malik v. District of Columbia, 574 F.3d 781, 785, 387 U.S. App. D.C. 420 (D.C. Cir. 2009) (examining correctional facility's grievance policy and finding that institutional transfers were not grievable matters).
Defendants also rely on Malik v. District of Columbia, 512 F. Supp. 2d 28 (D.D.C. 2007), rev'd on other grounds, 574 F.3d 781, 387 U.S. App. D.C. 420. In Malik, a pro se prisoner 5 sued the District of Columbia, a correctional services company retained by the District, and TransCor, claiming Eighth Amendment violations during a 40-hour bus ride transferring the inmate between two facilities. The court found that the inmate failed [*17] to exhaust administrative remedies as to the District and the correctional services company, and denied TransCor's motion for summary judgment on the ground that there was a genuine issue of material fact as to whether the plaintiff had exhausted remedies under the company's informal grievance policy. Id. at 32. In Malik the plaintiff claimed that he had filed a complaint, and it did not appear that the then-pro se plaintiff challenged the adequacy of the grievance process itself. Moreover, in Malik TransCor submitted evidence of an informal policy whereby inmates were directed to send complaints to particular departments or people, and TransCor employees were assigned to investigate complaints. Id. at 32. There has been no such factual showing here. Finally, even if TransCor had administrative remedies available to inmates, plaintiff Schilling was not required to exhaust those remedies under the PLRA because he was not an inmate at the time he filed this lawsuit. See Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009).
5 The 2007 district court decision states that the plaintiff was pro se. At the February 12, 2010 hearing, defense counsel, who is also defense counsel in Malik, [*18] stated that the Malik plaintiff is currently represented by counsel.
D. Physical injury
Defendants also argue that the class and subclass cannot include prisoners who suffered no physical injury. The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The Ninth Circuit has held that the injury "need not be significant but must be more than de minimis," and that "[t]his interpretation reflects Congress's intent in passing the PLRA . . . to curtail frivolous prisoner litigation . . . [and] to reduce the burgeoning volume of prisoner litigation in the federal courts." Oliver v. Keller, 289 F.3d 623, 627-28 (9th Cir. 2002).
Plaintiffs contend that the "physical injury" requirement of the PLRA is met because the named plaintiffs allege that they suffered physical injuries as a result of their treatment by TransCor, and it is not necessary for every member of the class to demonstrate "physical injury." See Kelsey v. County of Schoharie, No. 1:04-CV-299, 2007 U.S. Dist. LEXIS 16252, 2007 WL 603406, at *11 (N.D.N.Y. Feb. 21, 2007) [*19] ("The language of § 1997e(e) requires a showing of physical injury only in suits brought, i.e. commenced or filed, by prisoners, not those in which they join as members of a class action."), rev'd on other grounds, 567 F.3d 54 (2d Cir. 2009). Defendants have not cited any authority holding that the physical injury requirement applies to class members. In the absence of any such authority, the Court finds that the physical injury requirement is satisfied because the named plaintiffs allege physical injury. This interpretation is consistent with the intent of the PLRA, because it ensures that the lawsuit is not frivolous, and requiring every class member to meet the physical injury requirement would not reduce prisoner litigation. Moreover, claims for declaratory and injunctive relief are unaffected by § 1997e(e); therefore, the statute "does not nullify the Eighth Amendment by leaving violations of it without a remedy." Zehner v. Trigg, 133 F.3d 459, 464 (7th Cir. 1997); accord Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342, 1346, 332 U.S. App. D.C. 436 (D.C. Cir. 1998).
E. "24 hour" aspect of class definition
Defendants contend that the class and subclass [*20] definition is vague because it does not specify whether it includes only those individuals who were on a transporter for more than 24 continuous hours, or whether it also includes

individuals whose total transport was more than 24 hours, but who were taken off a transporter to switch vehicles or to be housed a hub for some period of time during the transport.
Plaintiffs respond that there is nothing vague about the definition because the total amount of time of each prisoner's journey is objectively measurable, and defendants' computerized data makes it possible to calculate the precise length of each prisoner's transport, including each segment of a transport. Plaintiffs clarify that they are seeking certification of a class of prisoners who were transported continuously for more than 24 hours and who were not allowed to sleep overnight in a bed, even if those prisoners switched vehicles at some point during their journey. To the extent there is any ambiguity in the proposed definition, this order clarifies that the class and subclass include those individuals.
F. Van transports
Defendants contend that individuals who were transported in vans (as opposed to the 19-, 23-, or 30-passenger [*21] "transporters") should not be included in the class and subclass for a number of reasons. First, defendants contend that plaintiffs never requested data on van transports during class discovery. However, plaintiffs state that they requested documents reflecting, inter alia, the types of vehicles in which prisoners were transported.
Second, defendants assert that as a factual matter, prisoners transported in vans do not meet the class definition because van transports are limited to 15 hours, and if a prisoner has not reached his destination within 15 hours, he is housed overnight and picked up the next day. However, defendants acknowledge that "occasionally are they transferred to another van," Opposition at 14:22-23, and thus there could be individuals who were transported for more than 24 hours by van. Defendants also object that TransCor's system does not contain information about whether a van transport included a "Rest Over Night," and therefore TransCor cannot provide a list of van order segments that reflects only those prisoners who were in transit for more than 24 hours. Plaintiffs assert, however, that TransCor has other records, such as Order Detail Reports, Trip Reports, [*22] Activity Logs, and Trip Manifests, from which it can be determined whether prisoners transported by van were housed in a facility long enough to sleep in abed. Based on defendants' admission that, at least on occasion, prisoners transported in vans have been transported for more than 24 hours, and the existence of records by which these prisoners can be identified, the Court finds it appropriate to include these prisoners in the class and subclass.
II. Rule 23(a) requirements: numerosity, commonality, typicality and adequacy
A. Numerosity
Based upon TransCor's records, the estimated total number of members of the proposed class is approximately 16,000, and the total number of members of the proposed subclass of prisoners transported in California is approximately 4,800. Defendants do not contest numerosity, and the Court finds that his requirement is met.
B. Commonality
Defendants concede that there are some common issues of law and fact, and instead contend that plaintiffs cannot demonstrate the Rule 23(b)(3) requirement that common issues predominate over individualized questions. The Court addresses this issue infra.
C. Typicality and adequacy
Rule 23(a) requires that plaintiffs show that [*23] the named plaintiffs' claims are typical of those of the class, and that the named plaintiffs will adequately represent the class. "Under the rule's permissive standards, representative claims are 'typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). "Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id.
Defendants contend that the named plaintiffs are not typical or adequate for a variety of reasons, discussed below. Defendants do not challenge the qualifications of plaintiffs' counsel, and the Court finds that the plaintiffs' counsel is qualified and able to litigate this case.
1. John Pinedo

Defendants assert that plaintiff Pinedo is not typical because his transport was only 23 hours and 28 minutes, and thus he cannot represent a class of prisoners who were transported for more than 24 hours. In so arguing, defendants assert that the TransCor [*24] "PECS" 6 report for Pinedo's transport, which shows that he was in transit for 24 hours and 23 minutes, is inaccurate and overstates the time of the transport. Defendants have submitted the declaration of James Crouch, TransCor's Director of Planning, which states that the time of pick up contained on a report is the time that the vehicle arrived at the facility, not the time that the prisoner is actually restrained and put in TransCor's care. Def's Ex 1 (Crouch Decl. PP 46). Defendants assert that the accurate pick up and drop off times can be determined from the "Activity Logs" kept for each transport.
6 "PECS" stands for TransCor's proprietary Prisoner Extraction and Control System, which is used to track transport orders and plan trips. Def's Ex. 1 (Crouch Decl. P 6).
Plaintiffs respond that defendants are asking the Court to ignore TransCor's business records, which purport to show the "actual time" of inmate pick up and drop off, and to rely instead on Mr. Crouch's "understanding" and "expectation." Plaintiffs also note that notwithstanding defendants' assertions about the inaccuracy of the times reported in the PECS system, defendants use those same PECS records when calculating [*25] the length of transports. See id. PP 3136. The Court finds that Mr. Crouch's testimony does not outweigh TransCor's business records, which TransCor itself relies upon, and thus that Mr. Pinedo may represent the class.
Defendants also contend that Mr. Pinedo is not an adequate representative because he had not read the complaint prior to the time it was filed. However, this fact does not render Mr. Pinedo inadequate to represent the class, and as plaintiffs note, Mr. Pinedo had read the complaint by the time he was deposed, and plaintiffs assert that Mr. Pinedo has taken an active role in the case. Defendants do not contend that Mr. Pinedo has any conflicts of interest with the class, and the Court finds that he is an adequate named plaintiff.
2. Plaintiff William Tellez
Defendants argue that Mr. Tellez is not typical or adequate because he was and is a federal inmate. As explained supra, however, TransCor transported Mr. Tellez to and from the Las Vegas Metro Police Department, and TransCor's Order Detail states that its "customer" was the Las Vegas Metro Police Department. Snell Decl. Ex. S at 1. Thus, absent evidence to the contrary, TransCor was acting on behalf of a state agency [*26] when it transported Mr. Tellez, and thus he can maintain a § 1983 claim against TransCor.
Defendants also challenge Mr. Tellez on the ground that he became involved in this case after reading about it in Prison Legal News. This fact alone does not render Mr. Tellez an inadequate plaintiff, and defendants do not assert that Mr. Tellez has any conflicts with the proposed class. The Court finds that he is an adequate named plaintiff.
3. Plaintiff Kevin Schilling
Defendants challenge plaintiff Schilling's typicality on the ground that he alleges he was assaulted by defendants Smith and Brummett during his transport. Defendants argue that Schilling's individual assault claims are unique to him and thus somehow render him atypical. However, Rule 23 permits actions that include both class and individual claims, and such cases are common. See Fed. R. Civ. Proc. 23(c)(4); Probe v. State Teachers' Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986). Defendants have not identified any particular problems with the concurrent litigation of the class claims and Schilling's individual claims, and the Court finds that Schilling's individual claims do not bar him from acting as a named plaintiff.
III. Rule 23(b)(3) [*27] requirements
A. Common vs. individual issues
Defendants contend that plaintiffs cannot show that "questions of law or fact common to class members predominate over any questions affecting only individual members," as required by Rule 23(b)(3). Defendants contend that although there are common issues as to the nature of TransCor's policies and procedures, whether those policies and procedures violated a prisoner's constitutional rights will involve individualized, fact-specific determinations. For example, defendants argue that a prisoner's Fourth Amendment excessive force claim challenging the use of restraints will depend on the facts and circumstances of his transport, including whether he was convicted of or charged with a violent crime, and whether he had a history of escape attempts. Defendants argue that the Eighth Amendment claims involve even

more individualized inquiries about whether each class member was adequately provided food, fluids, exercise, hygiene, and medical care. Defendants note that the three named plaintiffs had different experiences with regard to how many meals and bathroom breaks they were provided during their transports.
Plaintiffs respond that minor variations [*28] in inmates' experiences during their transports should not defeat certification because the predominant issue in this case is whether defendants' policy of denying prisoners "rest over night" while the prisoners remain in restraints in a vehicle violates the inmates' constitutional rights. Plaintiffs rely on cases in which similar claims were certified, such as Thomas v. Baca, 231 F.R.D. 397 (C.D. Cal. 2005), in which the court certified a class of county jail detainees who alleged that their constitutional rights were violated when the sheriff's department required them to sleep on the floor. See id. at 402 ("The central issue to a claim brought by any potential class member is whether the fact that LASD allegedly required him to sleep on the jail floor permits him to recover under § 1983.").
In Tyler v. Suffolk County, 253 F.R.D. 8 (D. Mass. 2008), the court certified a class of inmates at a state prison who alleged that the conditions of their confinement violated the Eighth Amendment because they were denied free access to toilet facilities. The inmates were housed in "dry" cells that were not equipped with toilets, and when the inmates were locked in their cells from 11:00 pm to [*29] 7:00 am, they could only use the toilets if permitted by the guards on duty. Id. at 9. The plaintiffs alleged that, due to either the guards' inattention or malice, "their bathroom access was unreliable and they were, at times, forced to urinate and defecate into bags or bottles which could not be emptied until the following morning." Id. The defendants argued, as TransCor does here, that individual issues predominated because the court would be required to conduct an individualized inquiry about whether each inmate was actually denied access to the toilet facilities. The court rejected that argument, holding "[t]he government's objections extend beyond the bounds of class certification and address, instead, the merits of the plaintiffs' claims. The plaintiffs' position is that the system of bathroom access under which Building 4 operated is per se a violation of their Eighth Amendment rights. The questions raised by the defendants of whether the system itself was unlawful and how it was modified over time present issues of law and fact, respectively, which are common to all class members." Id. at 10. The court also held that the objections raised by the government "relates to the [*30] divergent damages among class members rather than to differences in liability." Id. at 11.
Similarly, in Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005), the court held that the commonality requirement was satisfied by a class of detainees who were held in interrogation rooms for more than 16 hours and who alleged they were subjected to inhuman conditions. The plaintiffs alleged that they were at the "whim" of officers and detectives for food, water, and access to bathroom facilities, and that they became sleep-deprived because the metal benches in the interrogation rooms were not long enough for an adult to lie down on. Id. at 370-71. The plaintiffs challenged "(1) the maintenance of an unconstitutional, written policy requiring shackling of detainees held in interrogation rooms; (2) the failure to enact policies limiting the amount of time a detainee may be held in an interrogation room; (3) the failure to establish policies for food services and other humane treatment for persons held in the rooms; (4) the failure to provide proper sleeping facilities for persons held in the rooms, including bedding; and (5) the deliberately indifferent failure to correct a repeated pattern [*31] of neglect of the human needs of persons held in interrogation rooms." Id. at 372. The defendants opposed certification by arguing that detainees were not subjected to standardized conduct or conditions, and they submitted evidence showing, inter alia, that some detainees had been provided food, water, and access to bathrooms. Id. The court held that these factual differences did not defeat commonality: "The fact that certain detainees were treated marginally better on an ad hoc basis than others does not alter plaintiffs' allegations that they were subject to the standard practice of prolonged detention in interrogation rooms rather than the lock-up without a legitimate police purpose, and that the interrogation rooms are inherently unfit for human occupancy for more than a few hours." Id. 7
7 The Dunn court did not certify the class because the named plaintiff's claims were time-barred. Id. at 374. The court stated that it would consider allowing a new named plaintiff to represent the class.
Plaintiffs' claims are similar to those advanced in Tyler, Baca, and Dunn, and the Court agrees with the reasoning of those courts that any factual differences in how class members were treated [*32] do not defeat certification. Plaintiffs challenge the conditions to which they were subjected during 24 hour transports, and it is undisputed that all inmates are restrained during such transports and not provided with a "rest over night." As in Baca and Dunn, plaintiffs challenge the failure to enact policies to ensure adequate access to food, water, and bathroom facilities, and they allege that as a result of such failures, they have been subject to the whim of TransCor employees responsible for each transport. In order to establish liability, plaintiffs must objectively show that they were deprived of something "sufficiently

serious." Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). Whether inmates who have been transported for more than 24 hours and who are not allowed to sleep overnight have been deprived of something "sufficiently serious" can be determined on a classwide basis. While there is also a subjective component to the analysis in that inmates must also show that a deprivation occurred with deliberate indifference the inmates' needs, id., that inquiry does not mean that the legality of policies and practices applied to all inmates cannot be litigated on a class [*33] basis.
Defendants' reliance on Pierce v. County of Orange, 519 F.3d 985, 993-94 (9th Cir. 2008), amended and superseded on denial of reh'g, 526 F.3d 1190 (9th Cir. 2008), is unavailing. In Pierce, the Ninth Circuit held that the district court did not abuse its discretion when it decertified a damages class estimated as large as 180,000 pretrial detainees because, inter alia, class membership was "highly fluid and indefinite" and it was undisputed that County records were incomplete and unreliable. Id. However, Pierce did not hold that classes challenging prison conditions could not be certified, and in fact Pierce involved class-wide liability determinations on claims challenging prison conditions. See generally id.
B. Superior method of adjudication
Rule 23(b)(3) also requires that a class action be superior to other methods of adjudication. Defendants contend that the superiority requirement is not met because there are at least two other pending lawsuits against TransCor that raise similar claims. However, as plaintiffs note in their reply, both of these cases (Bagent v. Pierce, CV06-1842 (E.D. Cal.)) and Myers v. TransCor America LLC, CV 08-00656, 2009 U.S. Dist. LEXIS 24125 (M.D. Tenn.)) involve pro se litigants [*34] who are proceeding in forma pauperis. TransCor also cites a number of cases that have been dismissed against TransCor; those cases were also largely litigated by pro se plaintiffs. Rather than suggesting that a class action is not a superior method of adjudicating these claims, these cases indicate that a class action with the class represented by qualified counsel, is superior to numerous individual pro se cases. 8
8 Defendants raise a number of other arguments about why a class action is not superior. These arguments are largely duplicative of arguments addressed supra -- such as defendants' arguments about the ascertainability of the class and the predominance of individual issues -- and thus will not be repeated here.
IV. Tom Bane Civil Rights Act
Defendants contend that plaintiffs' claims under the Tom Bane Civil Rights Act cannot be certified. The Bane Act provides that "[a]ny individual whose exercise or enjoyment of rights secured by the Constitution . . . has been interfered with or attempted to be interfered with [through threats, intimidation or coercion] may institute or prosecute in his or her own name and on his or her own behalf a civil action for damages." Cal. Civil Code § 52.1(b). [*35] Defendants argue that under the plain language of the Bane Act, an individual can only bring a claim "in his or her own name and on his or her own behalf," and that the Bane Act does not authorize a representative action.
There is a split of authority regarding whether a class action can be brought under the Bane Act. Defendants rely on Taggart v. Solano County, CIV-S-05-0783 DFL, 2005 U.S. Dist. LEXIS 31799, 2005 WL 3325752 (E.D. Cal. Dec. 6, 2005), in which the court held that the structure and language of the statute does not authorize individuals to bring representative actions. The Taggart court noted that Section 52.1(a) authorizes the Attorney General, district attorneys, and city attorneys to bring claims "in the name of the people of the State of California against a person who interferes with the exercise or enjoyment of the rights of an individual or individuals," while Section 52.1(b) specifies that an individual may bring a civil action "on his or her own behalf." 2005 U.S. Dist. LEXIS 31799, [WL] at *4. In contrast, plaintiffs rely on Craft v. County of San Bernadino, No. EDCV 05-359-SGL, 2006 U.S. Dist. LEXIS 96979, 2006 WL 4941829 (C.D. Cal. Mar. 23, 2006), which reached the opposite conclusion and found Taggart "less than persuasive." 2006 U.S. Dist. LEXIS 96979, [WL] at *3. The Craft [*36] court found that the term "on his or her own behalf" in subsection (b) "may more simply be read as a means to distinguish itself from subsection (a), which authorized suits by the state Attorney General for statutory violations," rather than a limitation on class actions. Id. The court found significant "the fact that subsection (g) makes clear that any of the remedies available under section 52.1 are in addition to 'any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law.' Such 'other remedy' includes that provided by California Code of Civil Procedure section 382, the class action statute." Id. (quoting Cal. Civ. Code § 52(g)). The Court agrees with the analysis of the Craft court, and finds that the Bane Act permits class claims because there is no language expressly prohibiting class actions, and because of the broad language of § 52(g) providing that the Bane Act remedies are in addition to other available remedies.

Defendants also contend that the Bane Act claim cannot be certified because the Bane Act requires an individualized analysis as to whether each inmate was threatened, intimidated or coerced. See Cal. Civ. Code § 52.1(b). [*37] However, plaintiffs have alleged that all inmates were handcuffed and shackled. These allegations are sufficient to meet the "coercion" element of a Bane Act claim. See Martin v. County of San Diego, 650 F. Supp. 2d 1094, 1108-09 (S.D. Cal. 2009).
CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs' motion for class certification. (Docket No. 90). The Court certifies the following class and subclass:
1. A class of all pretrial detainees and prisoners who were transported by TransCor America LLC, its agents and/or employees between February 14, 2006 and the present, and who were forced to remain in restraints in the transport vehicle for more than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial detainees and prisoners who were removed from one transport vehicle and placed directly onto another, without being housed overnight, whose combined trip lasted more than 24 hours. The class only includes those pretrial detainees and prisoners who were transported by TransCor on behalf of a state agency, and does not include pretrial detainees and prisoners who were transported on behalf of a federal agency.
2. A subclass of all pretrial detainees [*38] and prisoners who were transported by TransCor America LLC, its agents and/or employees in the State of California between February 14, 2006 and the present, and who were forced to remain in restraints in the transport vehicle for more than 24 hours without being allowed to sleep overnight in a bed. The class includes pretrial detainees and prisoners who were removed from one transport vehicle and placed directly onto another, without being housed overnight, whose combined trip lasted more than 24 hours. The class only includes those pretrial detainees and prisoners who were transported by TransCor on behalf of a state agency, and does not include pretrial detainees and prisoners who were transported on behalf of a federal agency.
The Court also appoints attorneys Andrew C. Schwartz, Karen L. Snell, and Mark E. Merin as class counsel.
Counsel for plaintiffs and defendants shall meet and confer and, no later than March 12, 2010, submit a joint form of proposed Notice and plan for class notification.
IT IS SO ORDERED.
Dated: February 16, 2010
/s/ Susan Illston
SUSAN ILLSTON
United States District Judge

 
 KEVIN M. SCHILLING, on behalf of himself and all others similarly situated, Plaintiff, v. TRANSCOR AMERICA, LLC, et al., Defendants.
No. C 08-941 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2009 U.S. Dist. LEXIS 100447
October 14, 2009, Decided October 14, 2009, Filed
SUBSEQUENT HISTORY: Class certification granted by, in part, Class certification denied by, in part Schilling v. Transcor Am., LLC, 2010 U.S. Dist. LEXIS 20786 (N.D. Cal., Feb. 16, 2010)
PRIOR HISTORY: Schilling v. Transcor America, LLC, 2008 U.S. Dist. LEXIS 64016 (N.D. Cal., Aug. 11, 2008)
COUNSEL: [*1] For Kevin M. Schilling, Plaintiff: Andrew Charles Schwartz, LEAD ATTORNEY, Casper Meadows Schwartz & Cook, Walnut Creek, CA; Joshua Kaizuka, Mark E. Merin, Esq., LEAD ATTORNEYS, Law Office of Mark E. Merin, Sacramento, CA; Karen Leigh Snell, LEAD ATTORNEY, Karen L. Snell, Attorney at Law, San Francisco, CA.
For John Pinedo, William Tellez, Plaintiffs: Mark E. Merin, Esq., LEAD ATTORNEY, Law Office of Mark E. Merin, Sacramento, CA; Andrew Charles Schwartz, Casper Meadows Schwartz & Cook, Walnut Creek, CA.
For Transcor America LLC, Defendant: Justus C. Spillner, III, LEAD ATTORNEY, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, CA; Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA; Daniel P. Struck, Lisa S. Wahlin, Rachel Love, PRO HAC VICE, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ.
For Sgt. John Smith, Defendant: Daniel P. Struck, LEAD ATTORNEY, Skelton & Hochuli, P.L.C., Phoenix, AZ; Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA; Justus C. Spillner, III, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, CA.
For Jeff Brummett, Defendant: Daniel P. Struck, LEAD ATTORNEY, Skelton & Hochuli, P.L.C., Phoenix, AZ.
JUDGES: SUSAN ILLSTON, United [*2] States District Judge.
OPINION BY: SUSAN ILLSTON
OPINION
ORDER DENYING DEFENDANTS' MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS' LEAVE TO FILE SECOND AMENDED COMPLAINT
Defendants' motion to transfer venue and plaintiffs' motion to amend the complaint are scheduled for a hearing on October 16, 2009. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matters are appropriate for resolution without oral argument, and VACATES the hearing. For the reasons set forth below, the Court DENIES defendants' motion to transfer venue, and GRANTS plaintiff leave to amend the complaint.
BACKGROUND On February 14, 2008, plaintiff Kevin Schilling filed this lawsuit against TransCor America, LLC ("TransCor"),
Sergeant John Smith, "Officer Blanden," and Does 1-100. 1 On August 21, 2008, plaintiffs filed an amended complaint

adding two additional named plaintiffs, John Pinedo and William Tellez, and correcting a typographical error. The amended complaint alleges that TransCor is a for-profit Tennessee corporation licensed to do business in California whose business entails the transportation of pretrial detainees and prisoners throughout the United States on behalf of federal, state and local governments. First [*3] Amended Complaint ("FAC") P 13. The complaint also alleges that at all material times, each of the defendants was acting under color of state and federal law. Id. P 17.
1 The complaint incorrectly named defendant Jeff Brummett as Officer Blanden. Plaintiffs' motion to amend the complaint seeks to correct this error, and defendants have no objection to this amendment. This order will refer to defendant by his correct name, Brummett.
The FAC alleges that TransCor transports pretrial detainees and prisoners in conditions that amount to cruel and unusual punishment. The FAC alleges that TransCor's policies, practices or customs include but are not limited to transporting pretrial detainees and prisoners in small metal cages in which a person can neither stand up nor lie down, for more than 24 hours at a time, while the person is handcuffed, chained, and in shackles, and failing to provide pretrial detainees and prisoners with adequate food, fluids, exercise, hygiene, and medical care. Id. P 2. According to the FAC, plaintiff Schilling was picked up at a detention facility in Fairfield, California, by agents and/or employees of TransCor. Id. P 21. The complaint alleges that Schilling was strip [*4] searched before boarding the transport van, and that he "was then handcuffed, a restraint was applied that secured his hands to his waist, and he was shackled. After boarding the transport van, plaintiff was seated on a metal bench in a small, locked metal cage in which it was impossible for him to stand up or sit down." Id. The complaint alleges that for the next several days, plaintiff remained in the transport van, restrained and shackled in the metal cage, while the van "meandered around California - from Fairfield through counties within the Northern District of the United States Court and then back, once again through counties within the Northern District of the United States District Court, to Fairfield - picking up and dropping off pretrial detainees and/or prisoners." Id. P 22. Plaintiff Schilling alleges that during the time in the transport van, he was provided with only two meals per day; he was not permitted to lie down, stand up, bathe, shave, brush his teeth or change his clothes; he was forced to use the on-board toilet at defendants' convenience; and aside from the steps from his cage to the toilet and back, he was allowed no physical activity. Id. P 23. The FAC also [*5] alleges that after being in the van for several days, Schilling realized that the van was headed back to Fairfield and he demanded to speak to the warden. Id. P 24. The complaint alleges that in response, and while he was detained as described above, defendants Brummett and Smith grabbed him, sprayed pepper spray in his face, purposely walked him into poles, and along with an unknown TransCor employee, punched him. Id. Plaintiff alleges that he was not allowed to see a doctor or a nurse until the transport van reached Imperial County Jail. Id.
The FAC alleges that plaintiff Pinedo was picked up by TransCor at Kern Valley State Prison in Delano, California, and transported to Santa Barbara County Jail. Id. P 26. The FAC alleges that the trip took more than 27 hours, and that during the entire time Pinedo was in TransCor's vehicle, he was handcuffed, shackled, and restrained with a belly chain and chained to other inmates in a metal cage, unable to lie down or sleep during the entire time of his transport. Id. P 27. The FAC also alleges that Pinedo was permitted only two opportunities to urinate, but could not sit to use the toilet to defecate because TransCor personnel would not remove [*6] any of the restraints. Id. P 28. Pinedo also alleges that he was fed only three "fast food" meals, and not permitted to wash, shower or change his clothes before being delivered to Santa Barbara County Jail. Id. P 29.
The FAC alleges that plaintiff Tellez was picked up by TransCor at the Federal Penitentiary in Atwater, California. Id. P 30. Tellez was transported to Clark County Detention Center in a trip that took six days, and then approximately six months later, TransCor transported Tellez from Clark County Detention Center back to Atwater, California. Id. P 33. The FAC alleges that Tellez experienced conditions similar to those experienced by Schilling and Pinedo. Id. PP 30-33.
Plaintiffs filed this action on behalf of a class consisting of "all pretrial detainees and prisoners who were transported by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to remain in the transport van for more than 24 hours, from two years preceding the filing of this Complaint to the date this case is resolved." Id. P 39. The complaint also alleges a similar subclass of all pretrial detainees and prisoners transported in California. Id. P 40. The complaint alleges claims under 42 U.S.C. § 1983 [*7] for violations of the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution, and the California State Bane Civil Rights Act. Plaintiffs seek declaratory and injunctive relief, as well as monetary damages.
DISCUSSION

I. Defendants' motion to transfer venue
Defendants move to transfer venue to the Middle District of Tennessee, or alternatively to the Eastern District of California. Defendants contend that transfer is appropriate pursuant to 28 U.S.C. § 1406(a) because a substantial part of the events giving rise to this lawsuit occurred in Tennessee, where TransCor is headquartered and thus where the TransCor policies and procedures were developed, or the Eastern District of California, because a large portion of the route that plaintiff Schilling traveled on when he was transported from Fairfield, California to Las Vegas, Nevada, is in the Eastern District. Alternatively, defendants contend that venue should be transferred to Tennessee pursuant to 28 U.S.C. § 1404(a) because it is more convenient for the parties and witnesses.
A. 28 U.S.C. § 1406(a)
In general, venue is covered by 28 U.S.C. § 1391. Under 29 U.S.C. 1391(b), where federal subject matter jurisdiction is not based [*8] solely on diversity of citizenship, venue is proper in the following districts: (1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a "substantial part of the events or omissions" giving rise to the claim occurred, or a "substantial part of the property" that is the subject of the action is situated; or (3) if there is no district in which the action may otherwise be brought, a judicial district in which any defendant may be found. 28 U.S.C. § 1391(b). Here, the defendants do not all reside in the same state, 2 and there are districts in which the action may be brought, and thus the question is whether a "substantial part of the events or omissions" giving rise to plaintiffs' claims occurred in this district.
2 Defendants Brummett and Smith reside in Oklahoma.
As an initial matter, plaintiffs contend that defendants have waived an improper venue defense because Federal Rule of Civil Procedure 12(b)(3) provides that any motion asserting the defense of improper venue must be made before pleading if a responsive pleading is allowed. Plaintiffs note that TransCor filed a motion to dismiss pursuant to Rule 12(b) [*9] in 2008, and that it has since appeared at three different case management conferences and has represented in case management conference statements that "there are no issues regarding personal jurisdiction or venue." TransCor argues that it has not waived a venue challenge because it was only recently that TransCor's counsel learned that plaintiff Schilling's transport only traveled into the Northern District momentarily. Defendants also argue that defendants Smith and Brummett were only recently served with the complaint, and that these defendants preserved their venue objection by asserting it in their answer and by filing the instant motion.
The Court finds that defendants Smith and Brummett have not waived their venue objection since these defendants were only recently served and have raised improper venue in their answer. Given the procedural history of this case and the fact that this action has been pending since February 2008, it is a much closer call as to whether TransCor has waived its right to challenge venue. However, because all defendants raise identical arguments regarding venue, the Court will consider the motion as to all defendants.
The events or omissions on which [*10] plaintiffs' claims are based occurred in several judicial districts, including the Northern and Eastern Districts of California, Nevada, and Tennessee. Section 1391(b) "do[es] not require that a majority of the 'events or omissions' occur in the district where suit is filed; nor that the events there predominate. It is sufficient that a 'substantial part' occur there." Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, P 4:316 (2009). The "substantiality" requirement is "intended to preserve the element of fairness so that a defendant is not haled into a remote district having no real relationship to the dispute." Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994).
The parties dispute how much of plaintiff Schilling's transport route went through the Northern District versus the Eastern District. 3 The Court finds it unnecessary to resolve this factual question -- which in any event cannot be conclusively determined upon this record -- because it is undisputed that at least some portion of Schilling's route was in the Northern District. In addition, plaintiffs assert, and defendants do not deny, that discovery has revealed that during the [*11] class period TransCor had contracts with seven law enforcement agencies in the Northern District to transport prisoners and pretrial detainees. In contrast, TransCor has closed the Fresno "hub," and TransCor did not have any contracts to transport prisoner and pretrial detainees in the Middle District of Tennessee. Thus, it is likely that putative class members were transported throughout the Northern District of California. The Court concludes that based upon these facts, venue is proper in this District. Moreover, any suggestion by defendants that litigating in this District is unfair or burdensome is undercut by their willingness to litigate in the Eastern District, which is equally remote from either Oklahoma, where the individual defendants reside, or Tennessee, where TransCor is headquartered.

3 The parties do not discuss the other named plaintiffs' transport routes.
B. 28 U.S.C. § 1404(a)
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil matter to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The purpose of § 1404(a) is to "prevent the waste of time, energy, and money and to [*12] protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) (internal citations and quotation omitted). A motion for transfer lies within the broad discretion of the district court, and must be determined on an individualized basis. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).
To support a motion for transfer, the moving party must establish: (1) that venue is proper in the transferor district; (2) that the transferee district is one where the action might have been brought; and (3) that the transfer will serve the convenience of the parties and witnesses, and will promote the interests of justice. See Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal. 1992). A motion for transfer lies within the broad discretion of the district court, and must be determined on an individualized basis. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).
Defendants contend that the Middle District of Tennessee is more convenient because TransCor witnesses and documents are located there. However, given the procedural posture of this case, the [*13] Court finds that transfer would be both inefficient and not in the interest of justice. This case has been pending since February 2008, the parties have engaged in motion practice, and the Court has held three case management conferences. Under the current pretrial schedule, plaintiffs are scheduled to file a motion for class certification in December 2009, and the Court will hold a hearing on the motion in February 2010. According to plaintiffs' counsel, document discovery is virtually complete, and the parties have cooperated to schedule depositions at convenient times and places, including in Tennessee and Oklahoma. Thus, the only inconvenience to non-California witnesses will be if they are required to testify at trial. Given defendants' willingness to litigate in the Eastern District of California, any incremental inconvenience caused by traveling to the Northern District is marginal at best.
Accordingly, the Court DENIES defendants' motion to transfer venue.
II. Plaintiffs' motion to file second amended complaint
Plaintiffs seek to amend the complaint in several ways. Plaintiffs seek to correct the name of defendant Brummett, and to change the place of plaintiff Schilling's residence [*14] as well as the date of his transport. Plaintiffs also wish to amend the definition of the class to include pretrial detainees and prisoners whose claims were timely as of February 14, 2006, despite having accrued more than two years before plaintiffs filed their original complaint, based on the tolling provisions of California Code of Civil Procedure section 352 (limitations period tolled due to the disability of minority or insanity) or 352.1 (limitations period tolled for a maximum of two years due to the disability of imprisonment). Finally, plaintiffs wish to allege with additional particularity the facts showing that the tolling provisions of California Code of Civil Procedure section 352.1 apply to plaintiff Tellez. Defendants only oppose the proposed amendment to the class definition.
Plaintiffs state that through pre-class certification discovery they have learned that a substantial number of the prisoners and detainees transported by TransCor were juveniles and state hospital inmates. Plaintiffs state that in preparing to move for class certification, it has come to their attention that the complaint unintentionally excludes potential class members with timely claims. Plaintiffs [*15] argue that there is no prejudice to defendants because the additional class members have the same claims as the original class, and that the proposed amendment does not affect the schedule for filing and hearing the motion for class certification.
Defendants oppose amending the class definition on several grounds. First, defendants argue that plaintiffs have unreasonably delayed in seeking the current amendment, and they emphasize that plaintiffs have long known through discovery that TransCor transported juveniles and state hospital inmates. However, delay alone is not a basis for denying leave to amend. See Owens v. Kaiser Foundation Health Plan Inc., 244 F.3d 708, 712-713 (9th Cir. 2001) ("Assuming arguendo that Kaiser had unreasonably delayed the filing of the motion to amend its answer, undue delay by itself is insufficient to justify denying a motion to amend.") (internal citation and quotation omitted). Moreover, while defendants assert that the delay is unjustified, there is no suggestion of bad faith on the part of plaintiffs.

Defendants also contend that the revised class definition will cause them prejudice because discovery has been limited to the class period alleged in [*16] the complaint -- February 14, 2006 to February 14, 2008 -- and extending the class period may require that eight witnesses will have to be re-deposed to ascertain if TransCor's policies and procedures were different prior to February 14, 2006. Defendants also assert that they will be required to "scour" through literally thousands of pages of documents a second time if the class period is expanded. However, as plaintiffs note, defendants have not offered any evidence in support of their speculation that the witnesses identified by defendants -all of whom are TransCor employees - would need to be re-deposed. Plaintiffs argue that if any witness needs to be redeposed, that burden falls on plaintiffs, not defendants. Moreover, plaintiffs state that they believe there will be little if any additional discovery required. Plaintiffs have submitted the deposition testimony of Sondra Pedrigo, who was designated by defendants as the "person most knowledgeable about any and all policies and procedures of TransCor relating to transportation of prisoners," "the nutrition provided to prisoners during transportation," "prisoner complaints," etc., and who has worked for TransCor for eleven years. [*17] See Snell Reply Decl. Ex. A. During her testimony, Ms. Pedrigo testified about certain practices that have been in place since at least 2001 (such as use of black boxes over handcuffs), and she gave no indication that TransCor's policies and practices had changed in material ways over the years. If, in fact, there are material differences pre- and post- February 2006 with regard to TransCor's policies and procedures, defendants can easily ascertain that fact because Ms. Pedrigo is a TransCor employee. With regard to document discovery, plaintiffs state that in August 2008, plaintiffs requested transport records from TransCor's computer system dating back to February 2004, and that plaintiffs do not anticipate requiring any discovery other than that already served or noticed prior to filing the class certification motion.
Defendants also argue that the proposed amendment would be futile because the additional class members will be difficult to identify, and individual tolling-issue inquiries will predominate over common questions. However, as defendants recognize in their opposition, those are questions for class certification, and the Court finds it premature to resolve those questions [*18] at this stage. Defendants may renew those arguments in opposition to class certification.
Finally, the parties dispute whether the proposed amended class definition should relate back to the original complaint. Defendants argue that the amendment should not relate back because the claims of the additional class members arise out of different transports in a different time period. Defendants also assert that the original complaint only gave them notice that plaintiffs were challenging TransCor's policies and procedures from February 2006 to February 2008. These arguments are not persuasive. While the additional class members' claims would arise from an earlier time period, the claims are substantively similar to those of the existing putative class, and defendants have not identified any meaningful difference between the pre- and post- February 2006 class members. See Immigrant Assistance Project of the Los Angeles County Federation of Labor v. INS, 306 F.3d 842, 858 (9th Cir. 2002) (addition of new plaintiffs who were similarly situated to original plaintiffs did not prejudice defendants, claims related back). In addition, since the filing of the FAC in August 2008, defendants have [*19] been aware that plaintiff Tellez's claims arose in August 2005, prior to the asserted class period. See FAC PP 30-34 (alleging that Tellez was incarcerated at Federal Penitentiary in Atwater, California, and that transports occurred in August 2005 and February 2006).
CONCLUSION
For the foregoing reasons, the Court DENIES defendants' motion to transfer venue and GRANTS plaintiffs' motion to file a second amended complaint. (Docket Nos. 69, 70). Plaintiff shall file an amended complaint no later than October 19, 2009
IT IS SO ORDERED.
Dated: October 14, 2009
/s/ Susan Illston
SUSAN ILLSTON
United States District Judge

 
 KEVIN M. SCHILLING, on behalf of himself and all others similarly situated, Plaintiff, v. TRANSCOR AMERICA, LLC, et al., Defendants.
No. C 08-941 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2008 U.S. Dist. LEXIS 64016
August 11, 2008, Decided August 11, 2008, Filed
SUBSEQUENT HISTORY: Motion denied by, Motion granted by Schilling v. Transcor Am., 2009 U.S. Dist. LEXIS 100447 (N.D. Cal., Oct. 14, 2009)
COUNSEL: [*1] For Kevin M. Schilling, Plaintiff: Andrew Charles Schwartz, LEAD ATTORNEY, Casper Meadows Schwartz & Cook, Walnut Creek, CA; Joshua Kaizuka, Mark E. Merin, Esq., LEAD ATTORNEYS, Law Office of Mark E. Merin, Sacramento, CA; Karen Leigh Snell, LEAD ATTORNEY, Karen L. Snell, Attorney at Law, San Francisco, CA.
For Transcor America LLC, Defendant: Justus C. Spillner, III, LEAD ATTORNEY, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, CA; Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA.
For Sgt. John Smith, Officer Blanden, Defendants: Matthew Edward Fletcher, LEAD ATTORNEY, Attorney at Law, Fresno, CA.
JUDGES: SUSAN ILLSTON, United States District Judge.
OPINION BY: SUSAN ILLSTON
OPINION
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND
Defendants' motion to dismiss and for a more definite statement is scheduled for a hearing on August 15, 2008. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument, and VACATES the hearing. For the reasons set forth below, the Court GRANTS in part and DENIES in part defendants' motion, and GRANTS plaintiff leave to amend the complaint.
BACKGROUND On [*2] February 14, 2008, plaintiff Kevin Schilling filed this lawsuit against Transcor America, LLC
("Transcor"), Sergeant John Smith, Officer Blanden, and Does 1-100. The complaint alleges that Transcor is a for-profit Tennessee corporation licensed to do business in California whose business entails the transportation of pretrial detainees and prisoners throughout the United States on behalf of federal, state and local governments. Complaint P 10. The complaint also alleges that at all material times, each of the defendants was acting under color of state and federal law. Id. P 14.
Plaintiff alleges that in or about early September 2006, he was arrested at his home in Vallejo, California on a nobail warrant issued by a court in Las Vegas. Id. P 18. After being detained for several days at a detention facility in Fairfield, California, plaintiff was picked up at the detention facility by agents and/or employees of Transcor. Id. P 19. The complaint alleges that plaintiff was strip searched before boarding the transport van, and that he "was then handcuffed, a restraint was applied that secured his hands to his waist, and he was shackled. After boarding the transport van,

plaintiff was seated [*3] on a metal bench in a small, locked metal cage in which it was impossible for him to stand up or sit down." Id. The complaint alleges that for the next several days, plaintiff remained in the transport van, restrained and shackled in the metal cage, while the van meandered around California picking up and dropping off pretrial detainees and/or prisoners. Id. P 20. Plaintiff alleges that during approximately 6 days total in the transport van, he was provided with only two meals per day; he was not permitted to lie down, stand up, bathe, shave, brush his teeth or change his clothes; he was forced to use the on-board toilet at defendants' convenience; and aside from the steps from his cage to the toilet and back, he was allowed no physical activity. Id. PP 21-22. Plaintiff also alleges that after being in the van for several days, he realized that the van was headed back to Fairfield and he demanded to speak to the warden. Id. P 22. The complaint alleges that in response, and while he was detained as described above, defendants Blanden and Smith grabbed him, sprayed pepper spray in his face, purposely walked him into poles, and along with an unknown Transcor employee, punched him. Id. [*4] Plaintiff alleges that he was not allowed to see a doctor or a nurse until the transport van reached Imperial County Jail. Id.
Plaintiff filed this action on behalf of class consisting of all pretrial detainees and prisoners who were transported by Transcor and forced to remain in the transport van for more than 24 hours, from two years preceding the filing of the complaint to the date this case is resolved. Id. P 28. The complaint also alleges a similar subclass of all pretrial detainees and prisoners transported in California. Id. P 29. The complaint alleges claims under 42 U.S.C. § 1983 for violations of the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution, and the California State Unruh Act. Plaintiff seeks declaratory and injunctive relief, as well as monetary damages.
DISCUSSION
Defendants contend that plaintiff Schilling, who was a pretrial detainee when he was transported by Transcor, lacks standing to assert any claims under the Eighth Amendment, which defendants assert only applies to claims by convicted prisoners. Defendants also contend that Schilling lacks standing to seek injunctive and declaratory relief because the complaint does not - and could not - [*5] allege the likelihood that he would suffer a future injury, namely being arrested, charged with a crime, transported to a correctional facility by Transcor, and that he would be subjected to the same constitutional deprivations as alleged in the complaint.
Plaintiff responds, and the Court agrees, that defendants' arguments are premature and can be renewed in the context of a motion for class certification. At the time of class certification and upon a fuller factual record, the Court will consider whether Schilling could adequately represent convicted prisoners. Plaintiff also states that he will consider amending the complaint to define subclasses prior to moving for class certification. Similarly, the Court cannot determine solely on the basis of the complaint and in the absence of any discovery that plaintiff cannot maintain a claim for declaratory and injunctive relief.
Defendants also move for a more definite statement related to plaintiff's claim under the California Unruh Act. Plaintiff concedes that the complaint cites to a different California statute, the Tom Bane Act, and not the Unruh Act, and seeks leave to correct this error. The Court GRANTS plaintiff leave to so amend [*6] the complaint.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part defendants' motion to dismiss the complaint and for a more definite statement. (Docket No. 4). Plaintiff shall file an amended complaint no later than August 22, 2008.
IT IS SO ORDERED.
Dated: August 11, 2008
/s/ Susan Illston
SUSAN ILLSTON
United States District Judge

 
 Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 1 of 15

1 Mark E. Merin (State Bar No. 043849) Joshua Kaizuka (State Bar No. 212195)
2 LAW OFFICE OF MARK E. MERIN 2001 P Street, Suite 100
3 Sacramento, California 95811 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 E-Mail: mark@markmerin.com
5 Andrew C. Schwartz (State Bar No. 064578)
6 CASPER, MEADOWS, SCHWARTZ & COOK A Professional Corporation
7 California Plaza 2121 North California Blvd., Suite 1020
8 Walnut Creek, California 94596 Telephone: (925) 947-1147
9 Facsimile: (925) 947-1131 E-Mail: Schwartz@cmslaw.com
10 Karen L. Snell (State Bar No. 100266)
11 Attorney at Law 102 Buena Vista Terrace
12 San Francisco, CA 94117 Telephone: (415) 225-7592
13 Facsimile: (415) 487-0748 E-Mail: ksnell@clarencedyer.com
14 Attorneys for Plaintiffs
15

16

IN THE UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

19 KEVIN M. SCHILLING, JOHN PINEDO, WILLIAM TELLEZ, on behalf of themselves
20 and all those similarly situated,

21

Plaintiffs,

22 vs.

Case No. 3:08-cv-00941-SI
SECOND AMENDED CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL

23 TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER JEFF BRUMMETT, and
24 DOES 1 through 100,

25

Defendants.

26 \\\

27 \\\

28 \\\

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

1

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 2 of 15

1 PLAINTIFFS COME BEFORE THIS HONORABLE COURT AND ALLEGE:

2

INTRODUCTION

3

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

4 damages against TRANSCOR AMERICA, LLC, SGT. JOHN SMITH, OFFICER JEFF

5 BRUMMETT and DOES 1 THROUGH 100 (persons sued herein by their fictitious names) for

6 violations of plaintiffs’ constitutional rights and those of other similarly situated persons.

7

2. In this complaint, plaintiffs allege that TRANSCOR AMERICA, LLC’s official

8 policy, practice, or custom of transporting pretrial detainees and prisoners in conditions that

9 amount to cruel and unusual punishment violated and violates the rights of plaintiffs, and each

10 of those persons similarly situated, secured by the Fourth, Eighth and Fourteenth Amendments

11 to the U.S. Constitution and entitles plaintiffs, and each of those similarly situated, to recover

12 damages and attorneys’ fees under the Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988).

13 TRANSCOR AMERICA, LLC’s policies, practices or customs include but are not limited to

14 transporting pretrial detainees and prisoners in small metal cages in which a person can neither

15 stand up nor lie down for more than 24 hours at a time while the person is handcuffed, chained,

16 and in shackles, and failing to provide pretrial detainees and prisoners with adequate food,

17 fluids, exercise, hygiene, and medical care.

18

3. Because TRANSCOR AMERICA, LLC’s official policy, practice, or custom is

19 to transport pretrial detainees and prisoners in conditions that amount to unlawful detention,

20 excessive force, and cruel and unusual punishment, there is a likelihood of future injuries to

21 pretrial detainees and prisoners including members of the plaintiff class. Accordingly,

22 plaintiffs seek an order declaring unlawful TRANSCOR AMERICA, LLC’s policy, practice or

23 custom of transporting pretrial detainees under the conditions described above and enjoining

24 TRANSCOR AMERICA, LLC from engaging in this conduct in the future.

25

4. Plaintiffs include claims for damages and attorneys’ fees under California state

26 law against TRANSCOR AMERICA, LLC for violation of the Bane Civil Rights Act

27 (California Civil Code § 52.1(b)) pursuant to which plaintiffs are, and each of those persons

28 similarly situated in the subclass of pretrial detainees and prisoners transported by defendants

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

2

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 3 of 15

1 in California is, entitled to recover a minimum of $4,000 for each violation of rights secured to

2 them by the constitution or laws of the state of California and the constitution or laws of the

3 United States and attorneys’ fees (California Civil Code § 52.1(h)).

4

5. Plaintiffs include claims for damages and attorneys’ fees under the Federal Civil

5 Rights Act (42 U.S.C. §§ 1983, 1988) against all defendants for their violation of plaintiffs’

6 Fourth and Fourteenth Amendment right to be free from the use of excessive force, and the

7 right to be provided with adequate medical care.

8

6. Finally, plaintiffs include a claim for damages and attorneys’ fees under the

9 Federal Civil Rights Act (42 U.S.C. §§ 1983, 1988) against TRANSCOR AMERICA, LLC and

10 DOES 1-10 for its failure to adequately supervise SGT. SMITH, OFFICER JEFF

11 BRUMMETT, and DOES 11 through 100.

12

JURISDICTION

13

7. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth,

14 Eighth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded

15 upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the aforementioned statutory and

16 constitutional provisions.

17

8. The court has supplemental jurisdiction over plaintiffs’ state claims under 28

18 U.S.C. § 1367(a).

19

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

20 PARTIES
21 10. Plaintiff KEVIN M. SCHILLING is a resident of Pleasant Hill, California. Like
22 all those similarly situated, plaintiff is and at all material times herein was a citizen of the
23 United States who was arrested in one jurisdiction for an offense allegedly committed in
24 another jurisdiction and was transported from one detention facility to another detention facility
25 by defendants.
26 11. Plaintiff JOHN PINEDO is a resident of Delano, California. Like all those
27 similarly situated, plaintiff is and at all material times herein was a citizen of the United States
28

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

3

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 4 of 15

1 who was a sentenced prisoner serving time in one jurisdiction when he was picked up by

2 defendant TRANSCOR AMERICA, LLC and transported to another jurisdiction for a court

3 appearance.

4

12. Plaintiff WILLIAM TELLEZ is a citizen of the United States who was serving

5 the sentence of a criminal court for a term less than for life in the Federal Penitentiary in

6 Atwater, California, when he was picked up and transported to and from Clark County

7 Detention Center in Nevada by defendant TRANSCOR AMERICA, LLC. Plaintiff TELLEZ

8 remained in prison from the time he was returned to the Federal Penitentiary in Atwater,

9 California to the date of the filing of this complaint.

10

13. Defendant TRANSCOR AMERICA, LLC is and at all material times referred to

11 herein was a for-profit Tennessee corporation licensed to do business in California whose

12 business entails the transportation of pretrial detainees and prisoners throughout the United

13 States on behalf of federal, state, and local governments.

14

14. Defendant SGT. JOHN SMITH is an agent and/or employee of defendant

15 TRANSCOR AMERICA, LLC.

16

15. Defendant OFFICER JEFF BRUMMETT is an agent and/or employee of

17 Defendant TRANSCOR AMERICA, LLC.

18

16. Plaintiffs are informed and believe and thereon allege that defendants sued

19 herein by their fictitious names, DOES 1 through 100, are agents and/or employees of

20 defendant TRANSCOR AMERICA, LLC. Plaintiffs are not currently aware of the true names

21 and identities of those sued herein as DOES 1 through 100, but will amend their complaint to

22 include such persons’ real names once said names are made available to them.

23

17. At all material times mentioned herein, each of the defendants was acting under

24 the color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and

25 usages of the United States and its States, including but not limited to the State of California.

26

18. Class action plaintiffs are all those similarly situated pretrial detainees and

27 prisoners who were transported by TRANSCOR AMERICA, LLC, its agents and/or

28 employees, and forced to remain in the transport van for more than 24 hours, whose claims are

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

4

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 5 of 15

1 timely under California law, including the tolling provisions of California Code of Civil

2 Procedure sections 352 and 352.1.

3

19. For purposes of the California Bane Act Claim, class action plaintiffs are all

4 those similarly situated pretrial detainees and prisoners who were transported in the State of

5 California by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to

6 remain in the transport van for more than 24 hours, whose claims are timely under California

7 law, including the tolling provisions of California Code of Civil Procedure sections 352 and

8 352.1.

9

FACTS

10

20. In or about early September, 2006, plaintiff KEVIN M. SCHILLING was

11 arrested at his home in Vallejo, California on a no-bail warrant issued by a court in Las Vegas,

12 Nevada. Plaintiff was booked into a detention facility in Fairfield, California, where he

13 remained for several days.

14

21. On or about September 25, 2006, plaintiff was picked up at the Fairfield

15 Detention facility by agents and/or employees of defendant TRANSCOR AMERICA, LLC.

16 Before boarding the transport van, plaintiff was strip searched. He was then handcuffed, a

17 restraint was applied that secured his hands to his waist, and he was shackled. After boarding

18 the transport van, plaintiff was seated in a small, locked metal cage.

19

22. For the next several days, plaintiff remained in the transport van, restrained as

20 described above, while the van meandered around California -- from Fairfield through counties

21 within the Northern District of the United States District Court, to Fresno and then back, once

22 again, through counties within the Northern District of the United States District Court, to

23 Fairfield – picking up and dropping off pretrial detainees and/or prisoners.

24

23. During his time in the transport van, plaintiff was provided with only two meals

25 a day which consisted of a fast food sandwich or hamburger and a cup of water. Plaintiff was

26 not permitted to lie down or stand up or shower or shave or brush his teeth or change his

27 clothes. He was forced to use the on-board toilet at the defendants’ convenience. Eventually,

28 it backed up and smelled bad. But for the steps from his cage to the toilet and back, he was

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

5

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 6 of 15

1 allowed no physical activity.

2

24. When, after approximately four days of traveling in these conditions, plaintiff

3 realized that the TRANSCOR AMERICA, LLC transport van was headed back to Fairfield, he

4 demanded to talk to the warden. In response, and while he was still detained as described

5 above, defendants SGT. JOHN SMITH and OFFICER JEFF BRUMMETT grabbed him and

6 sprayed pepper spray in his face. While plaintiff was still unable to see, SGT. JOHN SMITH

7 purposely walked him into poles and, along with an unknown TRANSCOR AMERICA, LLC

8 employee, proceeded to punch him. Although this occurred at approximately 3:00 a.m. outside

9 the Fresno County Jail, plaintiff was not allowed to shower or change clothes or see a nurse or

10 a doctor until approximately two days later when, after making numerous stops along the way,

11 the transport van reached Imperial County Jail.

12

25. Plaintiff remained in the Imperial County Jail for approximately three days, after

13 which time he was transported to Las Vegas.

14

26. On or about June 29, 2006, at approximately 9:00 a.m., plaintiff JOHN PINEDO

15 was picked up by defendant TRANSCOR AMERICA, LLC, at Kern Valley State Prison in

16 Delano, California where he was serving a sentence for possession and sale of marijuana, and

17 transported to Santa Barbara County Jail where he arrived on June 30, 2006, more than 27

18 hours later for a child custody hearing.

19

27. The entire time plaintiff PINEDO was on defendant TRANSCOR’s transport

20 vehicle, he was handcuffed, shackled, and restrained with a belly chain and chained to other

21 inmates in a metal cage, unable to lie down, or to sleep during the entire time of his transport.

22

28. During his time in the transport van, plaintiff PINEDO was permitted only two

23 opportunities to urinate but could not sit to use the toilet to defecate because the TRANSCOR

24 personnel would not remove any of the restraints.

25

29. During the entire time of his transport, plaintiff PINEDO was fed only three

26 “fast food” meals, not permitted to wash, to shower, or to change his clothes, before being

27 delivered to Santa Barbara County Jail.

28 \\\

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

6

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 7 of 15

1

30. In or about August 2005, plaintiff TELLEZ was serving a sentence at the

2 Federal Penitentiary in Atwater, California, when he was first picked up for transport to Clark

3 County Detention Center. The trip on the TRANSCOR transport van took six (6) days, during

4 which time several stops were made to pick up and discharge prisoners along the way.

5

31. Plaintiff TELLEZ was manacled, shackled and handcuffed during the entire

6 time of his transport. He had limited access to toilet facilities, was not permitted to shower at

7 any time during the six (6) day transport, and had only a restricted diet of “fast food” during the

8 entire time on the transport van.

9

32. Transported in a cage, manacled, shackled, and waist chained, he was unable to

10 lie down and deprived of sleep during the entire time of the transport.

11

33. Transported by TRANSCOR back to Atwater in February 2006, plaintiff

12 TELLEZ was again subjected to the same abominable conditions he experienced on the initial

13 trip from Atwater: transport while handcuffed, shackled and waist chained the entire time in a

14 small metal cage in which he was unable to lie down and deprived of sleep.

15

34. Again, he was fed only a restricted diet of “fast food”, denied bathroom breaks,

16 and never unshackled in order to use the toilet to defecate.

17

35. Defendants TRANSCOR AMERICA, LLC and SGT. SMITH and OFFICER

18 JEFF BRUMMETT and DOES 1 through 100 are jointly and severally personally responsible

19 for the unlawful conduct of which plaintiffs complain.

20

36. As a result of being subjected to the harsh transportation policies, practices, or

21 customs described herein, plaintiffs, and all those similarly situated, have suffered physical,

22 mental, and emotional distress, invasion of privacy, and violation of due process of law and

23 federal and state statutory and constitutional rights, and are entitled to recover damages

24 according to proof, including exemplary damages.

25

CLASS CLAIMS

26

37. The unlawful detention and transportation, use of excessive force, and cruel and

27 unusual punishment to which plaintiffs and all those similarly situated were subjected was

28 performed pursuant to policies, practices, or customs of TRANSCOR AMERICA, LLC and

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

7

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 8 of 15

1 DOES 1-10. The unlawful detention and transportation, use of excessive force, and cruel and

2 unusual punishment complained of herein was engaged in without regard to the nature of the

3 alleged offense for which plaintiffs, and each of those similarly situated, had been arrested,

4 without regard to whether or not plaintiffs, and each of those similarly situated, had been

5 convicted of any crime, and without regard to whether plaintiffs, and each of those similarly

6 situated, had any history of violence.

7

38. Plaintiffs bring this action on their own behalf and on behalf of all persons

8 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.

9

39. The class is defined to include all pretrial detainees and prisoners who were

10 transported by TRANSCOR AMERICA, LLC, its agents and/or employees, and forced to

11 remain in the transport van for more than 24 hours, whose claims are timely under California

12 law, including the tolling provisions of California Code of Civil Procedure sections 352 and

13 352.1.

14

40. The subclass for purposes of the Bane Act claims is all pretrial detainees and

15 prisoners transported in California by TRANSCOR AMERICA, LLC, its agents and/or

16 employees, and forced to remain in the transport van for more than 24 hours, whose claims are

17 timely under California law, including the tolling provisions of California Code of Civil

18 Procedure sections 352 and 352.1.

19

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

20 of the class are so numerous that joinder of all members is impractical. Plaintiffs do not know

21 the exact number of class members. Plaintiffs are informed and believe, and thereupon allege,

22 that more than 30,000 persons per year are transported by defendants, and that most of the trips

23 last more than 24 hours. Plaintiffs are informed and believe, and therefore allege, that there are

24 thousands of persons in the proposed class.

25

42. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

26 informed and believe, and thereupon allege, that there are many facts common to the class

27 including but not limited to: (a) whether defendants have a policy, practice, or custom of

28 transporting pretrial detainees and prisoners in small metal cages, wearing handcuffs, shackles,

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

8

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 9 of 15

1 and wrist restraints, for more than 24 hours at a time; (b) whether defendants have a policy,

2 practice or custom of providing pretrial detainees and prisoners with inadequate food; (c)

3 whether defendants have a policy, practice or custom of providing pretrial detainees and

4 prisoners with inadequate fluids; (d) whether defendants have a policy, practice or custom of

5 providing pretrial detainees and prisoners with inadequate hygiene; (e) whether defendants

6 have a policy, practice or custom of providing pretrial detainees and prisoners with inadequate

7 exercise; and (f) whether defendants have a policy, practice or custom of providing pretrial

8 detainees and prisoners with inadequate medical care.

9

43. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

10 informed and believe, and thereupon allege, that there are many questions of law common to

11 the class including but are not limited to: (a) whether transporting pretrial detainees and

12 prisoners in metal cages, wearing handcuffs, shackles, and wrist restraints, unable to lie down

13 or stand up for more than 24 hours at a time, violates the Fourth, Eighth, and Fourteenth

14 Amendments; (b) whether defendants’ policy, practice or custom of providing pretrial

15 detainees and prisoners with inadequate food violates pretrial detainees’ right to be free from

16 unreasonable seizure and detention and prisoners’ right to be free from cruel and unusual

17 punishment; (c) whether defendants’ policy, practice or custom of providing pretrial detainees

18 and prisoners with inadequate fluids violates pretrial detainees’ right to be free from

19 unreasonable seizure and detention and prisoners’ right to be free from cruel and unusual

20 punishment; (d) whether defendants’ policy, practice or custom of providing pretrial detainees

21 and prisoners with inadequate hygiene violates pretrial detainees’ right to be free from

22 unreasonable seizure and detention and prisoners’ right to be free from cruel and unusual

23 punishment; (e) whether defendants’ policy, practice or custom of providing pretrial detainees

24 with inadequate exercise violates pretrial detainees’ right to be free from unreasonable seizure

25 and detention; and (f) whether defendants’ policy, practice or custom of providing pretrial

26 detainees and prisoners with inadequate medical care violates pretrial detainees’ right to be free

27 from unreasonable seizure and detention and prisoners’ right to be free from cruel and unusual

28 punishment.

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

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Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 10 of 15

1

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

2 the representative plaintiffs are typical of the class. Representative plaintiffs have the same

3 interests and suffered the same type of injuries as all of the class members. Plaintiffs’ claims

4 arose because of defendants’ official policy, practice, or custom of subjecting detainees to

5 unlawful transportation and detention, excessive force, and cruel and unusual punishment.

6 Plaintiffs’ claims are based upon the same legal theories as the claims of the class members.

7 Each class member suffered actual damages as a result of being transported under the

8 conditions imposed by TRANSCOR AMERICA, LLC.

9

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

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

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

12

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

13 prosecutions of separate actions by individual members of the class would create a risk that

14 inconsistent or varying adjudications with respect to individual members of the class would

15 establish incompatible standards of conduct for the parties opposing the class.

16

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

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

18 inconsistent adjudications with respect to individual members of the class which would, as a

19 practical matter, substantially impair or impede the interests of the other members of the class

20 to protect their interests.

21

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

22 are informed and believe, and thereupon allege, that defendants have acted on grounds

23 generally applicable to the class, thereby making appropriate the final injunctive or declaratory

24 relief with respect to the class as a whole.

25

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

26 action is superior to other available methods for the fair and equitable adjudication of the

27 controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that

28 the interests of members of the class in individually controlling the prosecution of a separate

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

10

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 11 of 15

1 action is low, in that most class members would be unable individually to prosecute any action

2 at all. Plaintiffs are informed and believe, and thereupon allege, that the amounts at stake for

3 individuals are so small that separate suits would be impracticable. Plaintiffs are informed and

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

5 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to

6 concentrate all litigation in one forum because it will promote judicial efficiency to resolve the

7 common questions of law and fact in one forum, rather than in multiple courts.

8

50. Plaintiffs do not know the identities of all of the class members. Plaintiffs are

9 informed and believe, and thereupon allege, that the identities of the class members may be

10 ascertained from records maintained by defendant TRANSCOR AMERICA, LLC. Plaintiffs

11 are informed and believe, and thereupon allege, that records maintained by defendants reflect

12 who was subjected to transportation, from where to where, when, and for how long. Plaintiffs

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

14 contained in defendants’ records and that the information necessary to identify the class

15 members, by last known addresses, and the dates, pick-up and drop-off points, and duration of

16 their transportation, is readily available from said records.

17

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

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

19 individual notice to all members who can be identified through reasonable effort. Plaintiffs are

20 informed and believe, and thereupon allege, that defendants’ computer records contain a last

21 known address for class members. Plaintiffs contemplate that individual notice will be given to

22 class members at such last known address by first class mail. Plaintiffs contemplate that the

23 notice will inform class members of the following:

24

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

25

class;

26

ii. The nature of the action;

27

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

28

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

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

11

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 12 of 15

1

action;

2

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

3

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

4

be represented by the named class plaintiffs and their counsel; and

5

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

6

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

7

the common issues adverse to the class.

8

FIRST CLAIM FOR RELIEF

9 (Violation Of Fourth, Eighth And Fourteenth Amendments To The U.S.

10

Constitution On Behalf Of Plaintiffs And All Persons Similarly Situated Against

Defendants TRANSCOR AMERICA, LLC And DOES 1 through 100, And

11

Each Of Them)

12

52. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint,

13 to the extent relevant, as if fully set forth.

14

53. Defendants’ policies, practices, or customs regarding the transportation of

15 pretrial detainees and prisoners violated the rights of plaintiffs, and the rights of each of those

16 similarly situated, under the Fourth and Eighth Amendments to be free from unlawful

17 detention, the use of excessive force, and cruel and unusual punishment, and violated the rights

18 of plaintiffs, and the rights of each of those similarly situated, under the Fourteenth

19 Amendment to due process and privacy, and directly and proximately damaged plaintiffs, and

20 each of those similarly situated, as herein alleged, entitling plaintiffs, and each of those

21 similarly situated, to recover damages for said constitutional violations pursuant to 42 U.S.C. §

22 1983.

23

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

24 situated, pray for relief as hereunder appears.

25 \\\

26 \\\

27 \\\

28 \\\

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

12

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 13 of 15

1

SECOND CLAIM FOR RELIEF

2

(Violation Of The California State Bane Civil Rights Act, Civil Code Section

3

52.1, On Behalf Of Plaintiffs And All Persons Similarly Situated And Against All Defendants, And Each Of Them)

4 54. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint,
5 to the extent relevant, as if fully set forth.
6 55. By subjecting plaintiffs, and all those similarly situated, to unlawful seizure and
7 detention, the use of excessive force, and cruel and unusual punishment, defendants, and each
8 of them, have interfered by threats, intimidation, or coercion with plaintiff’s rights, and the
9 rights of all those similarly situated, secured by the Constitution of the United States and the
10 rights secured by the Constitution of California.
11 56. Plaintiffs, and each of the persons plaintiffs seek to represent, were harmed by
12 defendants’ interference with their aforementioned constitutional and statutory rights.
13 57. By using threats, intimidation and coercion to interfere with plaintiffs’, and each
14 of the persons’ plaintiffs seek to represent, aforementioned constitutional and statutory rights,
15 defendants, and each of them, have violated California Civil Code § 52.1.
16 58. Defendants’ violations of California Civil Code § 52.1 make them liable to each
17 plaintiff for damages up to a maximum of three times the amount of each plaintiff’s actual
18 damages, but in no event less than four thousand dollars ($4,000), together with any attorney’s
19 fees and costs that may be determined by the court.
20

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly 21

situated, pray for relief as hereunder appears. 22

23

THIRD CLAIM FOR RELIEF

24

(Violation Of Fourth And Fourteenth Amendments To The U.S. Constitution On

Behalf Of Plaintiffs Against All Defendants, And Each Of Them)

25

26

59. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint,

27 to the extent relevant, as if fully set forth.

28 \\\

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

13

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 14 of 15

1

60. Defendants TRANSCOR AMERICA, LLC, SGT. SMITH, OFFICER

2 BRUMMETT, and DOES 1 through 100 acted under color of law in detaining and transporting

3 plaintiffs in conditions that amounted to punishment, subjecting plaintiffs to excessive force,

4 and depriving plaintiffs of adequate food, fluids, hygiene, exercise and medical care, thereby

5 violating plaintiffs’ rights under the Fourth and Fourteenth Amendments, and directly and

6 proximately injuring plaintiffs, as herein alleged, entitling plaintiffs to recover damages for said

7 constitutional violations pursuant to 42 U.S.C. § 1983.

8

61. As a proximate result of the conduct of defendants, plaintiffs suffered physical

9 pain and emotional distress and incurred general damages for the deprivation of their

10 constitutional rights.

11

62. Defendants acted in reckless and callous disregard for the constitutional rights

12 of plaintiffs, and with willful oppression and malice. Plaintiffs therefore seek an award of

13 punitive damages against the individual Defendants.

14

WHEREFORE, plaintiffs pray for relief as hereunder appears.

15

FOURTH CLAIM FOR RELIEF

16 (Violation Of Fourth And Fourteenth Amendments To The U.S. Constitution On

17

Behalf Of Plaintiffs Against Defendants TRANSCOR AMERICA, LLC And

DOES 1 through 10, And Each Of Them, For Failure To Supervise) 18

19

63. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint,

20 to the extent relevant, as if fully set forth.

21

64. Plaintiffs are informed and believe, and herein allege, that defendants

22 TRANSCOR AMERICA, LLC and DOES 1 through 10 participated in the violation of

23 plaintiffs’ rights by failing to provide adequate training, supervision, discipline, and control of

24 their agents and employees, including defendants SGT. SMITH and OFFICER BRUMMETT,

25 with respect to the constitutional prohibition against unreasonable searches and seizures and

26 the appropriate use of force and by ratifying the conduct of the Defendants described in this

27 complaint, thereby acquiescing in the deprivation of plaintiffs’ rights.

28

WHEREFORE, plaintiffs pray for relief as hereunder appears.

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

14

Case 3:08-cv-00941-SI Document 83 Filed 10/19/09 Page 15 of 15

1

PRAYER FOR RELIEF

2

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those similarly

3 situated, seek judgment as follows:

4

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

5 preliminarily and permanently, defendants’ policy, practice, or custom of transporting pretrial

6 detainees and prisoners under the conditions described herein;

7

2. Certification of the action as a class action;

8

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

9 plaintiff and for each member of the class of plaintiffs, as against all defendants;

10

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

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

12

5. Attorneys’ fees and costs under 42 U.S.C. § 1988, and California Civil

13 Code §§ 52 et seq.; and,

14

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

15 proper.

16

DEMAND FOR A JURY TRIAL

17

Pursuant to Federal Rules of Civil Procedure 38(b), a jury trial is hereby demanded.

18 DATED: October 19, 2009
19
20

Respectfully submitted, LAW OFFICE OF MARK E. MERIN

21

By: /s/ - “Mark E. Merin”

22

Mark E. Merin

Attorneys for Plaintiffs

23

24

25

26

27

28

Schilling v. TransCor America, LLC, et al. SECOND AMENDED CLASS ACTION COMPLAINT

15

 
 Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 1 of 20
ADRMOP,CLOSED,E−Filing,MEDTERM,REFSET−JCS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:08−cv−00941−SI

Schilling v. Transcor America LLC et al Assigned to: Hon. Susan Illston Referred to: Magistrate Judge Joseph C. Spero (Settlement) Relate Case Case: 3:13−cv−01580−SI Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/14/2008 Date Terminated: 01/31/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kevin M. Schilling

represented by Andrew Charles Schwartz Casper Meadows Schwartz & Cook California Plaza 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Kaizuka Law Office of Mark E. Merin 2001 P Street Suite 100 Sacramento, CA 95811 916−443−6911 Fax: 916−447−8336 Email: joshua@markmerin.com TERMINATED: 12/01/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Leigh Snell Attorney at Law 102 Buena Vista Terrace San Francisco, CA 94117 415−225−7592 Fax: 415−487−0748 Email: ksnell@snell−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. Law Office of Mark E. Merin 1010 F Street, Suite 300 Sacramento, CA 95814 916−443−6911 Fax: 916−447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Pinedo

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 2 of 20

Andrew Charles Schwartz Casper Meadows Schwartz & Cook 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com ATTORNEY TO BE NOTICED

Plaintiff William Tellez

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Transcor America LLC

represented by Justus C. Spillner , III McCormick Barstow Sheppard Wayte & Carruth LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93729−8912 (559) 433−1300 Fax: (559) 433−2300 Email: jspillner@mccormickbarstow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Edward Fletcher Attorney at Law 5 River Park Place East Fresno, CA 93720 559−433−1300 x 2111 Email: matt.fletcher@mccormickbarstow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashlee Fletcher Struck Wieneke & Love, P.L.C. 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 480−420−1600 Email: afletcher@swlfirm.com ATTORNEY TO BE NOTICED
Daniel P. Struck Struck Love Bojanowski & Acedo, PLC 3100 W. Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1695 Email: dstruck@strucklove.com ATTORNEY TO BE NOTICED
David C. Lewis ,

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 3 of 20

3100 W. Ray Rd. Ste. 300 Chandler, AZ 85226 480−420−1600 Fax: Email: dlewis@swlfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa S. Wahlin Jones Skelton & Hochuli, P.L.C. 2901 N. Cenetral Ave., Ste 800 Phoenix, AZ 85012 602−263−7353 Fax: 602−200−7849 PRO HAC VICE ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rachel Love Struck Love Bojanowski & Acedo, PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1690 Email: RLove@strucklove.com ATTORNEY TO BE NOTICED

Defendant Sgt. John Smith

represented by Daniel P. Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Edward Fletcher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlee Fletcher (See above for address) ATTORNEY TO BE NOTICED

David C. Lewis 3100 W. Ray Rd. Ste. 300 Chandler, AZ 85226 480−420−1600 Email: dlewis@swlfirm.com ATTORNEY TO BE NOTICED

Justus C. Spillner , III (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rachel Love (See above for address)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 4 of 20

ATTORNEY TO BE NOTICED

Defendant Jeff Brummett

represented by Daniel P. Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlee Fletcher (See above for address) ATTORNEY TO BE NOTICED

David C. Lewis (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rachel Love (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/14/2008 02/14/2008
02/14/2008 03/05/2008 03/10/2008
03/10/2008
03/10/2008 03/11/2008 04/23/2008

# Docket Text
1 COMPLAINT /issued summons against Transcor America LLC, John Smith, Blanden ( Filing fee $ 350, receipt number 34611015836.). Filed byKevin M. Schilling. (ga, COURT STAFF) (Filed on 2/14/2008) (ga, COURT STAFF). (Entered: 02/20/2008)
2 ADR SCHEDULING ORDER: Case Management Statement due by 5/14/2008. Case Management Conference set for 5/21/2008 10:30 AM.. Signed by Judge James Larson on 2/14/08. (Attachments: # 1 Judge Standing Order, # 2 Court Standing Order, # 3 Consent/Decline Form)(ga, COURT STAFF) (Filed on 2/14/2008) (Entered: 02/20/2008)
CASE DESIGNATED for Electronic Filing. (ga, COURT STAFF) (Filed on 2/14/2008) (Entered: 02/20/2008)
3 SUMMONS Returned Executed by Kevin M. Schilling. Transcor America LLC served on 2/19/2008, answer due 3/10/2008. (Schwartz, Andrew) (Filed on 3/5/2008) (Entered: 03/05/2008)
4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement filed by Transcor America LLC. Motion Hearing set for 4/16/2008 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Spillner, Justus) (Filed on 3/10/2008) (Entered: 03/10/2008)
5 Brief re 4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement Memorandum of Points and Authorities in Support Thereof filed byTranscor America LLC. (Related document(s) 4 ) (Spillner, Justus) (Filed on 3/10/2008) (Entered: 03/10/2008)
6 Request for Judicial Notice re 4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement filed byTranscor America LLC. (Related document(s) 4 ) (Spillner, Justus) (Filed on 3/10/2008) (Entered: 03/10/2008)
7 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing set for 5/14/2008 09:30 AM in Courtroom F, 15th Floor, San Francisco. (wh, COURT STAFF) (Filed on 3/11/2008) (Entered: 03/11/2008)
8 Memorandum in Opposition re 4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement filed byKevin M. Schilling. (Schwartz, Andrew) (Filed on 4/23/2008) (Entered: 04/23/2008)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 5 of 20

04/30/2008
04/30/2008 05/01/2008 05/01/2008 05/02/2008 05/05/2008 05/06/2008 05/07/2008 05/08/2008
06/03/2008 06/03/2008 06/03/2008 06/03/2008 06/04/2008 06/06/2008 06/18/2008
06/18/2008 07/03/2008
07/24/2008

9 REPLY to Response to Motion re 4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement Defendant Transcor America, LLC's Reply Brief in Support of Motion to Dismiss Plaintiff's Class Action Complaint and Motion for More Definite Statement filed byTranscor America LLC. (Fletcher, Matthew) (Filed on 4/30/2008) (Entered: 04/30/2008)
10 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR Certification by Parties and Counsel (Fletcher, Matthew) (Filed on 4/30/2008) (Entered: 04/30/2008)
11 STIPULATION and Proposed Order selecting Mediation by Transcor America LLC re document 10 ) (Fletcher, Matthew) (Filed on 5/1/2008) (Entered: 05/01/2008)
12 STIPULATION and Proposed Order selecting Mediation by Transcor America LLC re document 11 ) (Fletcher, Matthew) (Filed on 5/1/2008) (Entered: 05/01/2008)
13 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Schwartz, Andrew) (Filed on 5/2/2008) (Entered: 05/02/2008)
14 CONSENT to Proceed Before a US Magistrate Judge by Kevin M. Schilling.. (Schwartz, Andrew) (Filed on 5/5/2008) (Entered: 05/05/2008)
15 First Declination to Proceed Before a U.S. Magistrate Judge by Transcor America LLC and Request for Reassignment to a United States District Judge. (Fletcher, Matthew) (Filed on 5/6/2008) (Entered: 05/06/2008)
16 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (wh, COURT STAFF) (Filed on 5/7/2008) (Entered: 05/07/2008)
17 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Susan Illston for all further proceedings. Judge Magistrate Judge James Larson no longer assigned to the case. Signed by Executive Committee on 5/8/08. (mab, COURT STAFF) (Filed on 5/8/2008) (Entered: 05/08/2008)
18 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing set for 8/15/2008 09:00 AM. Initial case management set on 9/26/08 (ts, COURT STAFF) (Filed on 6/3/2008) (Entered: 06/03/2008)
19 Judge Illston's Standing Orders and Case Management Conference Order to CLERK'S NOTICE.(ts, COURT STAFF) (Filed on 6/3/2008) (Entered: 06/03/2008)
Set Deadlines/Hearings: Case Management Conference set for 9/26/2008 02:00 PM. (ys, COURT STAFF) (Filed on 6/3/2008) (Entered: 06/04/2008)
Set/Reset Deadlines as to 4 MOTION to Dismiss Plaintiff's Class Action Complaint and for a More Definite Statement. Motion Hearing set for 8/15/2008 09:00 AM. (ys, COURT STAFF) (Filed on 6/3/2008) (Entered: 06/04/2008)
20 ORDER REFERRING CASE to Mediation.. Signed by Judge Illston on 6/3/08. (ts, COURT STAFF) (Filed on 6/4/2008) (Entered: 06/04/2008)
21 ADR Clerk's Notice Setting ADR Phone Conference on 6/19/2008 at 10:00 a.m. (cmf, COURT STAFF) (Filed on 6/6/2008) (Entered: 06/06/2008)
ADR Remark: ADR Phone Conference scheduled for 6/19/2008 at 10:00 AM is off calendar and will be rescheduled. Counsel should meet and confer then provide ADR Case Administrator with three (3) alternative dates/times. (cmf, COURT STAFF) (Filed on 6/18/2008) (Entered: 06/18/2008)
ADR Remark: ADR Phone Conference is rescheduled to 7/3/2008 at 10:00 a.m. (cmf, COURT STAFF) (Filed on 6/18/2008) (Entered: 06/18/2008)
ADR Remark: ADR Phone Conference held on 7/3/2008 with Daniel Bowling, ADR Program Staff Attorney. Parties will request removal from the Court's ADR Program and request referral to private mediation. (cmf, COURT STAFF) (Filed on 7/3/2008) (Entered: 07/03/2008)
22 ADR Request to be excused from attending Mediation session in person (ADR L.R.6−9 d) Stipulation to Opt Out of the Northern District Court's ADR Program (Fletcher, Matthew) (Filed on 7/24/2008) (Entered: 07/24/2008)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 6 of 20

07/31/2008 08/05/2008 08/11/2008
08/21/2008 09/05/2008 09/05/2008 09/08/2008 11/04/2008 11/07/2008 11/18/2008 11/18/2008 02/05/2009
02/05/2009
02/09/2009 02/09/2009 02/10/2009
02/10/2009 02/10/2009 02/11/2009

23 NOTICE of Change In Counsel by Justus C. Spillner, III (Spillner, Justus) (Filed on 7/31/2008) (Entered: 07/31/2008)
24 ORDER removing case from ADR program. Signed by Judge Illston' on 8/1/08. (ts, COURT STAFF) (Filed on 8/5/2008) (Entered: 08/05/2008)
25 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND re 4 . An Amended Complaint is due 8/22/08. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 8/11/2008) (Entered: 08/11/2008)
26 AMENDED COMPLAINT First Amended Class Action Complaint; Demand for Jury Trial against all defendants. Filed byJohn Pinedo, William Tellez, Kevin M. Schilling. (Merin, Mark) (Filed on 8/21/2008) (Entered: 08/21/2008)
27 CLERK'S NOTICE Case Management Conference set for 11/14/2008 02:00 PM. (ts, COURT STAFF) (Filed on 9/5/2008) (Entered: 09/05/2008)
28 CORRECT CLERK'S NOTICE Case Management Conference set for 11/14/2008 02:00 PM. (ts, COURT STAFF) (Filed on 9/5/2008) (Entered: 09/05/2008)
29 Answer to First Amended Class Action Complaint ANSWER to Amended Complaint byTranscor America LLC. (Fletcher, Matthew) (Filed on 9/8/2008) (Entered: 09/08/2008)
30 Certificate of Interested Entities by Kevin M. Schilling, John Pinedo, William Tellez (Schwartz, Andrew) (Filed on 11/4/2008) (Entered: 11/04/2008)
31 JOINT CASE MANAGEMENT STATEMENT filed by Kevin M. Schilling, John Pinedo, William Tellez. (Schwartz, Andrew) (Filed on 11/7/2008) (Entered: 11/07/2008)
32 Minute Entry: Initial Case Management Conference held on 11/14/2008 before Illston (Date Filed: 11/18/2008). case continued to 3/27/09 () (ts, COURT STAFF) (Date Filed: 11/18/2008) (Entered: 11/18/2008)
Set Deadlines/Hearings: Case Management Conference set for 3/27/2009 02:30 PM. (ys, COURT STAFF) (Filed on 11/18/2008) (Entered: 11/19/2008)
33 MOTION for leave to appear in Pro Hac Vice of Daniel P. Struck ( Filing fee $ 210, receipt number 34611028554.) filed by Transcor America LLC. (Attachments: # 1 receipt, # 2 proposed order)(ys, COURT STAFF) (Filed on 2/5/2009) (Entered: 02/06/2009)
34 MOTION for leave to appear in Pro Hac Vice of Rachel Love ( Filing fee $ 210, receipt number 34611028556.) filed by Transcor America LLC. (Attachments: # 1 receipt, # 2 proposed order)(ys, COURT STAFF) (Filed on 2/5/2009) (Entered: 02/06/2009)
35 ORDER by Judge Illston granting 34 Motion for Pro Hac Vice (ts, COURT STAFF) (Filed on 2/9/2009) (Entered: 02/09/2009)
36 ORDER by Judge Illston granting 33 Motion for Pro Hac Vice (ts, COURT STAFF) (Filed on 2/9/2009) (Entered: 02/09/2009)
37 STIPULATION AND PROPOSED STIPULATED PROTECTIVE ORDER TO MAINTAIN CONFIDENTIALITY OF ALL BUSINESS RECORDS PRODUCED BY DEFENDANT TRANSCOR AMERICA LLC by Transcor America LLC, John Smith. (Spillner, Justus) (Filed on 2/10/2009) (Entered: 02/10/2009)
38 NOTICE of Appearance by Daniel P. Struck for TransCor America, LLC (Struck, Daniel) (Filed on 2/10/2009) (Entered: 02/10/2009)
39 NOTICE of Appearance by Rachel Love (Love, Rachel) (Filed on 2/10/2009) (Entered: 02/10/2009)
40 protective order. Signed by Judge Illston on 2/10/09. (ts, COURT STAFF) (Filed on 2/11/2009) (Entered: 02/11/2009)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 7 of 20

02/24/2009 02/24/2009 03/10/2009 03/20/2009 03/26/2009 03/31/2009
03/31/2009
03/31/2009 06/29/2009
07/01/2009 07/02/2009 07/02/2009 07/06/2009 07/06/2009 07/08/2009 07/08/2009

41 NOTICE by Transcor America LLC of Service of Defendants' First Set of Interrrogatories to Plaintiffs (Love, Rachel) (Filed on 2/24/2009) (Entered: 02/24/2009)
42 NOTICE by Transcor America LLC of Service of Second Supplemental Responses to Plaintiff's Request for Production of Documents, Set One (Love, Rachel) (Filed on 2/24/2009) (Entered: 02/24/2009)
43 NOTICE by Transcor America LLC of Service of Responses to Plaintiff's Request for Production of Documents, Set Two (Love, Rachel) (Filed on 3/10/2009) (Entered: 03/10/2009)
44 JOINT CASE MANAGEMENT STATEMENT filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 3/20/2009) (Entered: 03/20/2009)
45 CLERKS NOTICE Case Management Conference set for 3/27/2009 02:30 PM. (ts, COURT STAFF) (Filed on 3/26/2009) (Entered: 03/26/2009)
46 Minute Entry: Initial Case Management Conference held on 3/27/2009 before Illston (() Case continued to 7/10/09 @ 3:00 p.m.. for Further Case Management Conference(joint statement due one week prior)Case continued to 2/12/10 @ 9:00 a.m. for Motion to Certify Class(Motion due 12/1/10, Opposition 1/15/10 Reply 1/29/10)ORDERED AFTER HEARING: Plaintiff informed the Court that all parties shall be served prior to their trip to Oklahoma City.Plaintiff shall file an application to extend the service deadline.Counsel was advised that discovery limited to the certification motion may be appropriate.(ts, COURT STAFF) (Date Filed: 3/31/2009) (Entered: 03/31/2009)
47 CORRECTED Minute Entry: Case continued to 7/10/09 @ 3:00 p.m.. for Further Case Management Conference(joint statement due one week prior)Case continued to 2/12/10 @ 9:00 a.m. for Motion to Certify Class(Motion due 12/1/09, Opposition 1/15/10 Reply 1/29/10)ORDERED AFTER HEARING: Plaintiff informed the Court that all parties shall be served prior to their trip to Oklahoma City.Plaintiff shall file an application to extend the service deadline.Counsel was advised that discovery limited to the certification motion may be appropriate.(Date Filed: 3/31/2009). () (ts, COURT STAFF) (Date Filed: 3/31/2009) (Entered: 03/31/2009)
Set Deadlines/Hearings: Motions due by 12/1/2009. Case Management Conference set for 7/10/2009 03:00 PM. Motion Hearing set for 2/12/2010 09:00 AM. (ys, COURT STAFF) (Filed on 3/31/2009) (Entered: 04/01/2009)
48 MOTION to Continue /Extend Deadline for Service on Defendants Smith and Brummett filed by Kevin M. Schilling. (Attachments: # 1 Affidavit Declaration of Karen Snell in Support of Motion to Extend Deadline for Service of Defendants Smith & Brummett, # 2 Proposed Order Proposed Order Extending Deadline for Service)(Schwartz, Andrew) (Filed on 6/29/2009) (Entered: 06/29/2009)
49 ORDER granting 48 Motion to Continue (ts, COURT STAFF) (Filed on 7/1/2009) (Entered: 07/01/2009)
50 Letter from Andrew C. Schwartz. (Schwartz, Andrew) (Filed on 7/2/2009) (Entered: 07/02/2009)
51 NOTICE by Transcor America LLC of Videotape Deposition of Plaintiff, Kevin M. Schilling (Struck, Daniel) (Filed on 7/2/2009) (Entered: 07/02/2009)
52 ORDER continuing cmc to 8/21/09 @ 3 p.m.. Signed by Judge Illston on 7/2/09. (ts, COURT STAFF) (Filed on 7/6/2009) (Entered: 07/06/2009)
Set Deadlines/Hearings: Case Management Conference set for 8/21/2009 03:00 PM. (ys, COURT STAFF) (Filed on 7/6/2009) (Entered: 07/07/2009)
53 STIPULATION Joint to Depose Incarcerated Plaintiff, John Pinedo by John Pinedo, Kevin M. Schilling, William Tellez, Transcor America LLC. (Struck, Daniel) (Filed on 7/8/2009) (Entered: 07/08/2009)
54 STIPULATION Joint to Depose Incarcerated Plaintiff, William Tellez by John Pinedo, Kevin M. Schilling, William Tellez, Transcor America LLC. (Struck, Daniel) (Filed on 7/8/2009) (Entered: 07/08/2009)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 8 of 20

07/10/2009 07/10/2009 07/31/2009 08/14/2009 08/14/2009 08/17/2009 08/17/2009 08/19/2009 08/28/2009 08/31/2009
09/01/2009 09/09/2009 09/09/2009 09/10/2009 09/11/2009
09/11/2009

55 ORDER Re: deposition of Pinedo (ts, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)
56 ORDER Re: deposition of Tellez (ts, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)
57 NOTICE by Transcor America LLC of Deposition of Plaintiff, William Tellez (Struck, Daniel) (Filed on 7/31/2009) (Entered: 07/31/2009)
58 JOINT CASE MANAGEMENT STATEMENT filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 8/14/2009) (Entered: 08/14/2009)
59 STIPULATION and Proposed Order Extending Deadline For Service on Defendants Smith and Brummett by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 8/14/2009) (Entered: 08/14/2009)
60 SUMMONS Returned Executed by Kevin M. Schilling. Blanden served on 8/4/2009, answer due 8/24/2009. AS TO DEFENDANT JEFF BRUMMETT (Schwartz, Andrew) (Filed on 8/17/2009) (Entered: 08/17/2009)
61 SUMMONS Returned Executed by John Smith. John Smith served on 8/4/2009, answer due 8/24/2009. (Schwartz, Andrew) (Filed on 8/17/2009) (Entered: 08/17/2009)
62 ORDER granting extension to serve Smith and Brummett re 59 . (ts, COURT STAFF) (Filed on 8/19/2009) (Entered: 08/19/2009)
63 NOTICE by Transcor America LLC OF DEPOSITION OF KEVIN SCHILLING (AMENDED) (Struck, Daniel) (Filed on 8/28/2009) (Entered: 08/28/2009)
64 Minute Entry: Further Case Management Conference held on 8/21/2009 before Illston (Date Filed: 8/31/2009). Case continued to 10/16/09 @ 9:00 a.m. for Motion to Change Venue, Amend Complaint(Motion due 9/11/09, Opposition 9/25/09 Reply 10/2/09)ORDERED AFTER HEARING: The first round of discovery is extended to 10/31/09. () (tf, COURT STAFF) (Date Filed: 8/31/2009) (Entered: 08/31/2009)
65 NOTICE by Transcor America LLC (SECOND AMENDED) NOTICE OF VIDEOTAPED DEPOSITION OF PLAINTIFF, KEVIN SCHILLING (Struck, Daniel) (Filed on 9/1/2009) (Entered: 09/01/2009)
66 ANSWER to 26 First Amended Complaint byJohn Smith, Jeff Brummett. (Struck, Daniel) (Filed on 9/9/2009) Modified on 9/10/2009 (ys, COURT STAFF). (Entered: 09/09/2009)
67 DEMAND for Trial by Jury by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 9/9/2009) (Entered: 09/09/2009)
68 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendants' Second Supplemental Disclosure Statement (Struck, Daniel) (Filed on 9/10/2009) (Entered: 09/10/2009)
69 MOTION for Leave to File Second Amended Complaint and Memorandum of Points and Authorities in Support Thereof filed by Kevin M. Schilling. Motion Hearing set for 10/16/2009 10:00 AM. (Attachments: # 1 Exhibit Second Amended Complaint)(Schwartz, Andrew) (Filed on 9/11/2009) (Entered: 09/11/2009)
70 MOTION to Change Venue (Transfer) filed by Jeff Brummett, John Smith, Transcor America LLC. Motion Hearing set for 10/16/2009 09:00 AM. (Attachments: # 1 Affidavit Sondra Pedigo, # 2 Attachments A−C to Pedigo Affidavit, # 3 Attachments D−E to Pedigo Affidavit, # 4 Attachments F−I to Pedigo Affidavit, # 5 Attachments J−K to Pedigo Affidavit, # 6 Attachment L to Pedigo Affidavit, # 7 Attachments M−P to Pedigo Affidavit, # 8 Attachments Q−T to Pedigo Affidavit, # 9 Affidavit Declaration of Jeff Brummett, # 10 Affidavit John Smith, # 11 Exhibit Pedigo Deposition, # 12 Exhibit Lohberger Deposition, # 13 Exhibit Sweet Deposition, # 14 Exhibit Westbrook Deposition, # 15 Exhibit Crouch Deposition, # 16 Exhibit Smith Deposition, # 17 Errata Brummett Deposition, # 18 Exhibit Scott Deposition, # 19 Exhibit Wisdom Deposition, # 20 Exhibit Bradley Deposition, # 21 Affidavit Struck Declaration, # 22 Proposed Order)(Struck, Daniel) (Filed on 9/11/2009) (Entered: 09/11/2009)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 9 of 20

09/16/2009 09/17/2009 09/22/2009 09/25/2009 09/25/2009 09/25/2009
09/29/2009
10/02/2009 10/02/2009
10/02/2009
10/14/2009 10/19/2009 10/19/2009 10/29/2009

71 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendants' Request for Production of Documents and Things to Plaintiffs − Set One (Struck, Daniel) (Filed on 9/16/2009) (Entered: 09/16/2009)
72 MOTION for leave to appear in Pro Hac Vice of Lisa S. Wahlin ( Filing fee $ 210, receipt number 34611036745.) filed by Transcor America LLC. (Attachments: # 1 receipt, # 2 proposed order)(ys, COURT STAFF) (Filed on 9/17/2009) (Entered: 09/17/2009)
73 ORDER granting 72 Motion for Pro Hac Vice (tf, COURT STAFF) (Filed on 9/22/2009) (Entered: 09/22/2009)
74 Memorandum in Opposition re 70 MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) filed byKevin M. Schilling. (Schwartz, Andrew) (Filed on 9/25/2009) (Entered: 09/25/2009)
75 Declaration of Karen Snell in Support of 74 Plaintiff's Opposition To Defendants' Motion to Transfer Venue of Karen Snell filed byKevin M. Schilling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Schwartz, Andrew) (Filed on 9/25/2009) Modified on 9/28/2009 (ys, COURT STAFF). (Entered: 09/25/2009)
76 Memorandum in Opposition re 69 MOTION for Leave to File Second Amended Complaint and Memorandum of Points and Authorities in Support Thereof filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit 1−4, # 2 Exhibit 5−13, # 3 Exhibit 14−18, # 4 Proposed Order)(Struck, Daniel) (Filed on 9/25/2009) (Entered: 09/25/2009)
77 NOTICE by Transcor America LLC of Service of Objection to Plaintiffs' Deposition Notice with Production of Documents; Response to Plaintiffs' Inspection Demand − Set One; Response to Plaintiffs' Interrogatories − Set Four and Response to Plaintiffs' Request for Production of Documents − Set Four (Struck, Daniel) (Filed on 9/29/2009) (Entered: 09/29/2009)
78 Reply Memorandum in Support of 69 Motion for Leave to File Second Amended Complaint filed byKevin M. Schilling. (Schwartz, Andrew) (Filed on 10/2/2009) Modified on 10/5/2009 (ys, COURT STAFF). (Entered: 10/02/2009)
79 Declaration of Karen L. Snell in Support of Reply Brief in Support of 69 Motion for Leave to File Second Amended Complaint filed byKevin M. Schilling. (Attachments: # 1 Exhibit A− Part I, # 2 Exhibit A−Part II, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Schwartz, Andrew) (Filed on 10/2/2009) Modified on 10/5/2009 (ys, COURT STAFF). (Entered: 10/02/2009)
80 REPLY in support re 70 MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) MOTION to Change Venue (Transfer) filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit 1 through 4)(Struck, Daniel) (Filed on 10/2/2009) Modified on 10/5/2009 (ys, COURT STAFF). (Entered: 10/02/2009)
81 ORDER DENYING DEFENDANTS' MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS LEAVE TO FILE SECOND AMENDED COMPLAINT re 69 , 70 . Amended Complaint is due 10/19/09. (SI, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
82 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Plaintiff, John Pinedo (Struck, Daniel) (Filed on 10/19/2009) (Entered: 10/19/2009)
83 AMENDED COMPLAINT Second Amended Class Action Complaint; Demand for Jury Trial against Jeff Brummett, John Smith, Transcor America LLC. Filed byKevin M. Schilling, William Tellez, John Pinedo. (Merin, Mark) (Filed on 10/19/2009) (Entered: 10/19/2009)
84 STIPULATION , Declaration and Proposed Order Extending The Pre−Certification Discovery Cut−Off by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 10/29/2009) (Entered: 10/29/2009)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 10 of 20

11/03/2009 11/10/2009 11/20/2009 11/23/2009 12/01/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 12/01/2009
12/01/2009
12/01/2009
12/01/2009

85 ORDER re discovery cutoff re 84 (tf, COURT STAFF) (Filed on 11/3/2009) (Entered: 11/03/2009)
86 NOTICE by Transcor America LLC of Service of Defendant Transcor Americas Objection To Plaintiffs Amended Deposition Notice With Production Of Documents; And Response To Plaintiffs Amended Inspection Demand, Set One (Struck, Daniel) (Filed on 11/10/2009) (Entered: 11/10/2009)
87 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Continued Videotaped Deposition of Plaintiff, John Pinedo (Struck, Daniel) (Filed on 11/20/2009) (Entered: 11/20/2009)
88 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of service of Discovery Responses (Struck, Daniel) (Filed on 11/23/2009) (Entered: 11/23/2009)
89 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 12/1/2009) (Entered: 12/01/2009)
90 MOTION to Certify Class and Appointment of Class Counsel filed by John Pinedo, Kevin M. Schilling, William Tellez. Motion Hearing set for 2/12/2010 09:00 AM. (Schwartz, Andrew) (Filed on 12/1/2009) Modified on 12/2/2009 (ys, COURT STAFF). (Entered: 12/01/2009)
91 Declaration of Karen Snell in Support of 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 90 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
92 EXHIBITS re 91 Declaration in Support, 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit I, # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit L, # 5 Exhibit M, # 6 Exhibit N, # 7 Exhibit O, # 8 Exhibit P)(Related document(s) 91 , 90 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
93 EXHIBITS re 91 Declaration in Support, 92 Exhibits, 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit R, # 2 Exhibit S, # 3 Exhibit T, # 4 Exhibit U)(Related document(s) 91 , 92 , 90 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
94 EXHIBITS re 93 Exhibits, 91 Declaration in Support, 92 Exhibits, 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit V Part 2, # 2 Exhibit V Part 3, # 3 Exhibit V Part 4, # 4 Exhibit V Part 5, # 5 Exhibit V Part 6, # 6 Exhibit V Part 7)(Related document(s) 93 , 91 , 92 , 90 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
95 EXHIBITS re 91 Declaration in Support, 92 Exhibits, 90 MOTION to Certify Class, 94 Exhibits, 93 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit X Part 1, # 2 Exhibit X Part 2, # 3 Exhibit X Part 3, # 4 Exhibit X Part 4, # 5 Exhibit X Part 5, # 6 Exhibit X Part 6, # 7 Exhibit X Part 7)(Related document(s) 91 , 92 , 90 , 94 , 93 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
96 EXHIBITS re 91 Declaration in Support, 92 Exhibits, 90 MOTION to Certify Class, 94 Exhibits, 95 Exhibits, 93 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit X Pt 9, # 2 Exhibit X Pt 10, # 3 Exhibit X Pt 11, # 4 Exhibit X Pt 12, # 5 Exhibit X Pt 13, # 6 Exhibit X Pt 14, # 7 Exhibit X Pt 15, # 8 Exhibit X Pt 16)(Related document(s) 91 , 92 , 90 , 94 , 95 , 93 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
97 EXHIBITS re 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 94 Exhibits, 95 Exhibits, 93 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit X Pt 18, # 2 Exhibit X Pt 19, # 3 Exhibit X Pt 20, # 4 Exhibit X Pt 21, # 5 Exhibit X Pt 22, # 6 Exhibit X Pt 23, # 7 Exhibit X Pt 24, # 8 Exhibit X Pt 25, # 9 Exhibit X Pt 26)(Related document(s) 91 , 92 , 96 , 90 , 94 , 95 , 93 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 11 of 20

12/01/2009 12/01/2009 12/01/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 01/14/2010 01/15/2010

98 EXHIBITS re 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 94 Exhibits, 95 Exhibits, 97 Exhibits,, 93 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit Y − Pt 2, # 2 Exhibit Y Pt 3, # 3 Exhibit Y Pt 4, # 4 Exhibit Z, # 5 Exhibit AA Pt 1, # 6 Exhibit AA Pt 2, # 7 Exhibit AA Pt 3, # 8 Exhibit AA Pt 4)(Related document(s) 91 , 92 , 96 , 90 , 94 , 95 , 97 , 93 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
99 EXHIBITS re 98 Exhibits,, 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 94 Exhibits, 95 Exhibits, 97 Exhibits,, 93 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit AA − Pt 6, # 2 Exhibit AA − Pt 7, # 3 Exhibit AA − Pt 8, # 4 Exhibit AA − Pt 9, # 5 Exhibit AA − Pt 10, # 6 Exhibit AA − Pt 11, # 7 Exhibit AA − Pt 12)(Related document(s) 98 , 91 , 92 , 96 , 90 , 94 , 95 , 97 , 93 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
100 EXHIBITS re 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit AA −Pt 14, # 2 Exhibit AA Pt 15, # 3 Exhibit AA Pt 16, # 4 Exhibit AA Pt 17, # 5 Exhibit AA Pt 18, # 6 Exhibit AA Pt 19)(Related document(s) 90 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
101 EXHIBITS re 98 Exhibits,, 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 99 Exhibits,, 94 Exhibits, 95 Exhibits, 97 Exhibits,, 93 Exhibits, 100 Exhibits, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit AA − Pt 21, # 2 Exhibit AA − Pt 22, # 3 Exhibit AA − Pt 23, # 4 Exhibit AA − Pt 24, # 5 Exhibit AA − Pt 25, # 6 Exhibit AA − Pt 26)(Related document(s) 98 , 91 , 92 , 96 , 90 , 99 , 94 , 95 , 97 , 93 , 100 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
102 EXHIBITS re 98 Exhibits,, 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 99 Exhibits,, 94 Exhibits, 95 Exhibits, 97 Exhibits,, 93 Exhibits, 100 Exhibits, 101 Exhibits,, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit BB − Pt 2, # 2 Exhibit BB − Pt 3, # 3 Exhibit BB − Pt 4, # 4 Exhibit BB − Pt 5, # 5 Exhibit BB − pt 6, # 6 Exhibit BB − Pt 7)(Related document(s) 98 , 91 , 92 , 96 , 90 , 99 , 94 , 95 , 97 , 93 , 100 , 101 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
103 EXHIBITS re 98 Exhibits,, 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 90 MOTION to Certify Class, 99 Exhibits,, 94 Exhibits, 95 Exhibits, 97 Exhibits,, 93 Exhibits, 100 Exhibits, 102 Exhibits,, 101 Exhibits,, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit CC − Pt 2, # 2 Exhibit CC − Pt 3, # 3 Exhibit CC − Pt 4, # 4 Exhibit CC − Pt 5, # 5 Exhibit CC − Pt 7, # 6 Exhibit CC − Pt 8, # 7 Exhibit DD, # 8 Exhibit EE)(Related document(s) 98 , 91 , 92 , 96 , 90 , 99 , 94 , 95 , 97 , 93 , 100 , 102 , 101 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
104 Declaration in Support of 93 Exhibits, 98 Exhibits,, 100 Exhibits, 91 Declaration in Support, 92 Exhibits, 96 Exhibits, 102 Exhibits,, 90 MOTION to Certify Class, 99 Exhibits,, 101 Exhibits,, 94 Exhibits, 95 Exhibits, 97 Exhibits,, filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Affidavit Mark Merin, # 2 Proposed Order)(Related document(s) 93 , 98 , 100 , 91 , 92 , 96 , 102 , 90 , 99 , 101 , 94 , 95 , 97 ) (Schwartz, Andrew) (Filed on 12/1/2009) (Entered: 12/01/2009)
105 MOTION for Leave to File Excess Pages (Stipulated) filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Proposed Order)(Struck, Daniel) (Filed on 1/14/2010) (Entered: 01/14/2010)
106 Memorandum in Opposition re 90 MOTION to Certify Class filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12 − Part 1, # 13 Exhibit 12 − Part 2, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 12 of 20

01/20/2010 01/29/2010
02/16/2010 02/16/2010 02/17/2010
02/17/2010
02/19/2010 02/19/2010 03/08/2010 03/12/2010
03/12/2010 03/16/2010 03/23/2010 04/21/2010 07/20/2010 08/04/2010

Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45)(Struck, Daniel) (Filed on 1/15/2010) (Entered: 01/15/2010)
107 ORDER granting 105 Motion for Leave to File Excess Pages (tf, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
108 Reply Memorandum re 90 MOTION to Certify Class filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Affidavit Supplemental Decl of Karen Snell, # 2 Exhibit Exs GG−JJ tp Suppl Decl of Karen Snell)(Schwartz, Andrew) (Filed on 1/29/2010) (Entered: 01/29/2010)
109 Minute Entry: Motion Hearing held on 2/12/2010 before Illston (Date Filed: 2/16/2010). (Court Reporter K. Wyatt.) (tf, COURT STAFF) (Date Filed: 2/16/2010) (Entered: 02/16/2010)
110 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (SI, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
111 Ex Parte Application/REQUEST to File re 106 Memorandum in Opposition,,,, Defendants' Notice of Supplemental Authority filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Supplement, # 2 Exhibit A − Turner v. Grant County Det. Ctr., # 3 Exhibit B − In re Texas Prison Litigation, # 4 Exhibit C − Zehner v. Trigg)(Struck, Daniel) (Filed on 2/17/2010) Modified on 2/18/2010 (ys, COURT STAFF). (Entered: 02/17/2010)
112 Proposed Order re 111 Ex Parte Application re 106 Memorandum in Opposition,,,, Defendants' Notice of Supplemental Authority Ex Parte Application re 106 Memorandum in Opposition,,,, Defendants' Notice of Supplemental Authority by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 2/17/2010) (Entered: 02/17/2010)
113 ORDER denying 111 Ex Parte Application (tf, COURT STAFF) (Filed on 2/19/2010) (Entered: 02/19/2010)
114 ORDER denying ex parte as "untimely" (tf, COURT STAFF) (Filed on 2/19/2010) (Entered: 02/19/2010)
115 NOTICE by John Pinedo, Kevin M. Schilling, William Tellez of Unavailability of Counsel (Merin, Mark) (Filed on 3/8/2010) (Entered: 03/08/2010)
116 NOTICE by Jeff Brummett, John Pinedo, Kevin M. Schilling, John Smith, William Tellez, Transcor America LLC Agreed Notice of Pendency of Class Action (Attachments: # 1 Exhibit 1 − Proposed Notice)(Merin, Mark) (Filed on 3/12/2010) (Entered: 03/12/2010)
117 Proposed Order re 116 Notice (Other) of Pendency of Class Action by Jeff Brummett, John Pinedo, Kevin M. Schilling, John Smith, William Tellez, Transcor America LLC. (Merin, Mark) (Filed on 3/12/2010) (Entered: 03/12/2010)
118 ORDER approving class notice (tf, COURT STAFF) (Filed on 3/16/2010) (Entered: 03/16/2010)
119 NOTICE by Transcor America LLC of Service of Defendant TransCor America, LLC's Seventh Supplemental Responses to Plaintiffs' Request for Production of Documents, Set One (Struck, Daniel) (Filed on 3/23/2010) (Entered: 03/23/2010)
120 USCA (10−80055) ORDER : Denying the petition for permission to appeal the district court's 2/16/10 order granting class action certification. (ys, COURT STAFF) (Filed on 4/21/2010) (Entered: 04/21/2010)
121 USCA ORDER: No further filings shall be accepted in this closed case. (ys, COURT STAFF) (Filed on 7/20/2010) (Entered: 07/20/2010)
122 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Subpoenas (Attachments: # 1 Exhibit A − H, # 2 Exhibit I − T)(Love, Rachel) (Filed on 8/4/2010) (Entered: 08/04/2010)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 13 of 20

10/08/2010 11/08/2010 11/12/2010 01/24/2011 03/10/2011 03/18/2011 04/01/2011 04/12/2011 06/07/2011 06/16/2011 06/20/2011
06/20/2011 06/21/2011 08/25/2011 09/06/2011 12/15/2011 12/16/2011
12/16/2011
12/16/2011 12/19/2011

123 Notice from US Supreme Court to the USCA for the 9th Circuit re filing of the petition for a writ of certiorari. (ys, COURT STAFF) (Filed on 10/8/2010) (Entered: 10/29/2010)
124 Letter dated 10/25/10 from Vartkes Bourmaian to the Court re Request for Status and Information. (Attachments: # 1 env.)(ys, COURT STAFF) (Filed on 11/8/2010) (Entered: 11/23/2010)
125 Letter dated 11/8/10 from Vartkes Bourmaian to the Court re REQUEST of Any Status Information Availabile. (Attachments: # 1 env.)(ys, COURT STAFF) (Filed on 11/12/2010) (Entered: 11/23/2010)
126 Clerk's Notice from US Supreme Court (10−468): The petition for a writ of certiorari is denied. (ys, COURT STAFF) (Filed on 1/24/2011) (Entered: 01/26/2011)
127 CLERKS NOTICE Further Case Management Conference set for 4/8/2011 3:00 PM. (tfS, COURT STAFF) (Filed on 3/10/2011) Modified on 3/10/2011 (tfS, COURT STAFF). (Entered: 03/10/2011)
128 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 3/18/2011) (Entered: 03/18/2011)
129 CASE MANAGEMENT STATEMENT filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 4/1/2011) (Entered: 04/01/2011)
130 Minute Entry: Further Case Management Conference held on 4/8/11 (Date Filed: 4/12/2011). () (tf, COURT STAFF) (Date Filed: 4/12/2011) (Entered: 04/12/2011)
131 Proposed Order PROPOSED JOINT SCHEDULING ORDER by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 6/7/2011) (Entered: 06/07/2011)
132 NOTICE of Change of Address by Daniel P. Struck (Struck, Daniel) (Filed on 6/16/2011) (Entered: 06/16/2011)
133 ***SEE ORDER #135***scheduling ORDER (tf, COURT STAFF) (Filed on 6/20/2011) (Additional attachment(s) added on 6/20/2011: # 1 Standing Order) (tf, COURT STAFF). Modified on 6/21/2011 (ys, COURT STAFF). (Entered: 06/20/2011)
134 filed in error (Entered: 06/20/2011)
135 SCHEDULING ORDER(DATES AMENDED) (tf, COURT STAFF) (Filed on 6/21/2011) (Entered: 06/21/2011)
136 NOTICE of Change of Address by Mark E. Merin, Esq (Merin, Mark) (Filed on 8/25/2011) (Entered: 08/25/2011)
137 *Letter dated 8/31/11 from Non−party plaintiff Ricky Pendleton to the Court re status of the motion for summary judgment. (ysS, COURT STAFF) (Filed on 9/6/2011) (Entered: 09/08/2011)
138 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Continued Videotaped Deposition of Plaintiff, Kevin M. Schilling (Struck, Daniel) (Filed on 12/15/2011) (Entered: 12/15/2011)
139 MOTION for leave to appear in Pro Hac Vice of David C. Lewis (Filing fee $ 305, receipt #34611068349.) filed by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 12/16/2011) Modified on 12/20/2011 (ysS, COURT STAFF). (Entered: 12/16/2011)
140 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendant, TransCor America, LLC's Seventh Supplemental Responses to Plaintiffs' Request for Production of Documents − Set One (Struck, Daniel) (Filed on 12/16/2011) (Entered: 12/16/2011)
141 NOTICE by John Pinedo, Kevin M. Schilling, William Tellez of Service of Plaintiffs' Supplemental Disclosures (Merin, Mark) (Filed on 12/16/2011) (Entered: 12/16/2011)
142 MOTION for Partial Summary Judgment filed by Kevin M. Schilling. Motion Hearing set for 1/27/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon.

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 14 of 20

12/19/2011 12/19/2011 12/19/2011 12/19/2011 12/19/2011 12/20/2011
12/20/2011
12/20/2011 12/20/2011 12/20/2011 12/30/2011

Susan Illston. Responses due by 1/3/2012. Replies due by 1/10/2012. (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
143 Declaration of Gordon Brooks in Support of 142 MOTION for Partial Summary Judgment filed byKevin M. Schilling. (Related document(s) 142 ) (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
144 Declaration of Jack Atherton in Support of 143 Declaration in Support, 142 MOTION for Partial Summary Judgment filed byKevin M. Schilling. (Attachments: # 1 Exhibit 1 and 2, # 2 Exhibit 3, Part 1, # 3 Exhibit 3, Part 2, # 4 Exhibit 3, Part 3, # 5 Exhibit 3, Part 4, # 6 Exhibit 3, Part 5, # 7 Exhibit 4 and 5)(Related document(s) 143 , 142 ) (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
145 Declaration of Ken Katsaris in Support of 143 Declaration in Support, 142 MOTION for Partial Summary Judgment, 144 Declaration in Support, filed byKevin M. Schilling. (Related document(s) 143 , 142 , 144 ) (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
146 Declaration of Karen Snell in Support of 142 MOTION for Partial Summary Judgment with Exhibits A − F filed byKevin M. Schilling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, Pt 1, # 5 Exhibit D, Pt 2, # 6 Exhibit D, Pt 3, # 7 Exhibit D, Pt 4, # 8 Exhibit D, Pt 5, # 9 Exhibit E, Pt 1, # 10 Exhibit E, Pt 2, # 11 Exhibit F)(Related document(s) 142 ) (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
147 EXHIBITS re 146 Declaration in Support, Exhibit G (Parts 1−15) filed byKevin M. Schilling. (Attachments: # 1 Exhibit G, Pt 2, # 2 Exhibit G, Pt 3, # 3 Exhibit G, Pt 4, # 4 Exhibit G, Pt 5, # 5 Exhibit G, Pt 6, # 6 Exhibit G, Pt 7, # 7 Exhibit G, Pt 8, # 8 Exhibit G, Pt 9, # 9 Exhibit G, Pt 10, # 10 Exhibit G, Pt 11, # 11 Exhibit G, Pt 12, # 12 Exhibit G, Pt 13, # 13 Exhibit G, Pt 14, # 14 Exhibit G, Pt 15)(Related document(s) 146 ) (Schwartz, Andrew) (Filed on 12/19/2011) (Entered: 12/19/2011)
148 EXHIBITS re 146 Declaration in Support, Exhibit H (Parts 1−16) filed byKevin M. Schilling. (Attachments: # 1 Exhibit Ex H Pt 2, # 2 Exhibit Ex H Pt 3, # 3 Exhibit Ex H Pt 4, # 4 Exhibit Ex H Pt 5, # 5 Exhibit Ex H Pt 6, # 6 Exhibit Ex H Pt 7, # 7 Exhibit Ex H Pt 8, # 8 Exhibit Ex H Pt 9, # 9 Exhibit Ex H Pt 10, # 10 Exhibit Ex H Pt 11, # 11 Exhibit Ex H Pt 12, # 12 Exhibit Ex H Pt 13, # 13 Exhibit Ex H Pt 14, # 14 Exhibit Ex H Pt 15, # 15 Exhibit Ex H Pt 16)(Related document(s) 146 ) (Schwartz, Andrew) (Filed on 12/20/2011) (Entered: 12/20/2011)
149 EXHIBITS re 146 Declaration in Support, (Exhibits I−Z) filed byKevin M. Schilling. (Attachments: # 1 Exhibit Ex I Pt 2, # 2 Exhibit Ex I Pt 3, # 3 Exhibit Ex J Pt 1, # 4 Exhibit Ex J Pt 2, # 5 Exhibit Ex J Pt 3, # 6 Exhibit Ex K, # 7 Exhibit Ex L, # 8 Exhibit Ex M, # 9 Exhibit Ex N, # 10 Exhibit Ex O, # 11 Exhibit Ex P, # 12 Exhibit Ex Q, # 13 Exhibit Ex R, # 14 Exhibit Ex S, # 15 Exhibit Ex T, # 16 Exhibit Ex U, # 17 Exhibit Ex V, # 18 Exhibit Ex W, # 19 Exhibit Ex X, # 20 Exhibit Ex Y, # 21 Exhibit Ex Z)(Related document(s) 146 ) (Schwartz, Andrew) (Filed on 12/20/2011) (Entered: 12/20/2011)
150 EXHIBITS re 146 Declaration in Support, (Exhibits AA − OO) filed byKevin M. Schilling. (Attachments: # 1 Exhibit BB, # 2 Exhibit CC, # 3 Exhibit DD, # 4 Exhibit EE, # 5 Exhibit FF, # 6 Exhibit GG, # 7 Errata HH, # 8 Exhibit II, # 9 Exhibit JJ, # 10 Exhibit KK, # 11 Exhibit LL, # 12 Exhibit MM, # 13 Exhibit NN, # 14 Exhibit OO)(Related document(s) 146 ) (Schwartz, Andrew) (Filed on 12/20/2011) (Entered: 12/20/2011)
151 EXHIBITS re 146 Declaration in Support, (Exhibits PP − RR) filed byKevin M. Schilling. (Attachments: # 1 Exhibit PP Pt 2, # 2 Exhibit QQ Pt 1, # 3 Exhibit QQ Pt 2, # 4 Exhibit RR)(Related document(s) 146 ) (Schwartz, Andrew) (Filed on 12/20/2011) (Entered: 12/20/2011)
152 ORDER granting 139 Motion for Pro Hac Vice (tfS, COURT STAFF) (Filed on 12/20/2011) (Entered: 12/20/2011)
153 STIPULATION re 142 MOTION for Partial Summary Judgment to Extend Briefing Schedule by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 12/30/2011) (Entered: 12/30/2011)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 15 of 20

01/05/2012 01/05/2012 01/05/2012 01/18/2012 01/19/2012
01/31/2012
02/02/2012 02/02/2012 02/07/2012 02/07/2012 02/13/2012 02/13/2012 02/13/2012 02/13/2012 02/16/2012 02/22/2012 03/02/2012 03/05/2012

154 ORDER CONTINUING MOTION HEARING (tf, COURT STAFF) (Filed on 1/5/2012) (Entered: 01/05/2012)
Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Motion Hearing set for 5/18/2012 09:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 1/5/2012) (Entered: 01/05/2012)
Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Responses due by 3/20/2012. Replies due by 4/20/2012. (ysS, COURT STAFF) (Filed on 1/5/2012) (Entered: 01/06/2012)
155 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendant TransCor America's Interrogatories to Other Class Plaintiffs (Struck, Daniel) (Filed on 1/18/2012) (Entered: 01/18/2012)
156 MOTION Class Clarification and Decertification re 110 Order on Motion to Certify Class filed by Jeff Brummett, John Smith, Transcor America LLC. Motion Hearing set for 2/24/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Responses due by 2/2/2012. Replies due by 2/9/2012. (Attachments: # 1 Proposed Order)(Struck, Daniel) (Filed on 1/19/2012) (Entered: 01/19/2012)
157 STIPULATION WITH PROPOSED ORDER re 156 MOTION Class Clarification and Decertification re 110 Order on Motion to Certify Class STIPULATION & ORDER EXTENDING BRIEFING SCHEDULE AND HEARING DATE filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 1/31/2012) (Entered: 01/31/2012)
Set/Reset Deadlines as to 156 MOTION Class Clarification and Decertification re 110 Order on Motion to Certify Class . Motion Hearing set for 4/6/2012 09:00 AM before Hon. Susan Illston. (tf, COURT STAFF) (Filed on 2/2/2012) (Entered: 02/02/2012)
158 ORDER granting 157 Stipulation (Order Signed by Judge Illston on 2/1/12, this is a text docket entry only, there is no document associated with this order.) (tf, COURT STAFF) (Filed on 2/2/2012) (Entered: 02/02/2012)
159 STIPULATION WITH PROPOSED ORDER (Joint) filed by Transcor America LLC. (Attachments: # 1 Proposed Order)(Lewis, David) (Filed on 2/7/2012) (Entered: 02/07/2012)
160 ORDER by Judge Illston granting 159 Stipulation signed by SI on 2/7/12 (tfS, COURT STAFF) (Filed on 2/7/2012) (Entered: 02/07/2012)
161 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Craig Arno (00268336C) with Proof of Service (Lewis, David) (Filed on 2/13/2012) (Entered: 02/13/2012)
162 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Douglas Earl Black (W33659) with Proof of Service (Lewis, David) (Filed on 2/13/2012) (Entered: 02/13/2012)
163 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Troy Kincheloe (124856) with Proof of Service (Lewis, David) (Filed on 2/13/2012) (Entered: 02/13/2012)
164 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Justin Wright with Proof of Service (Lewis, David) (Filed on 2/13/2012) (Entered: 02/13/2012)
165 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service (Struck, Daniel) (Filed on 2/16/2012) (Entered: 02/16/2012)
166 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Discovery Requests (Struck, Daniel) (Filed on 2/22/2012) (Entered: 02/22/2012)
167 RESPONSE (re 156 MOTION Class Clarification and Decertification re 110 Order on Motion to Certify Class ) filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Merin, Mark) (Filed on 3/2/2012) (Entered: 03/02/2012)
168 MOTION for Extension of Time to Complete Discovery and Continue Trial filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Declaration Daniel P. Struck, # 2 Exhibit October 11, 2011 Letter, # 3 Exhibit December 8, 2011

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 16 of 20

03/08/2012
03/12/2012 03/12/2012 03/14/2012 03/23/2012 03/23/2012 03/23/2012
04/05/2012 04/05/2012 04/06/2012 04/09/2012 04/09/2012 04/09/2012 04/11/2012

Letter, # 4 Exhibit February 9, 2012 Letter, # 5 Exhibit Member Class Survey/Questionnaire, # 6 Proposed Order Amended Scheduling Order)(Struck, Daniel) (Filed on 3/5/2012) (Entered: 03/05/2012)
169 RESPONSE (re 168 MOTION for Extension of Time to Complete Discovery and Continue Trial ) Plaintiffs' Opposition filed byJohn Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit Hon. Susan Illston's Standing Orders: Pretrial Instructions, # 2 Proposed Order)(Merin, Mark) (Filed on 3/8/2012) (Entered: 03/08/2012)
170 ORDER CONTINUING CERTAIN DATES 168 (Illston, Susan) (Filed on 3/12/2012) (Entered: 03/12/2012)
Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Responses due by 5/25/2012. Motion Hearing set for 6/15/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (tfS, COURT STAFF) (Filed on 3/12/2012) Modified on 3/14/2012 (tfS, COURT STAFF). (Entered: 03/12/2012)
Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Motion Hearing set for 6/15/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (tfS, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)
171 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Trial Conflict (Struck, Daniel) (Filed on 3/23/2012) (Entered: 03/23/2012)
172 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Discovery Documents (Struck, Daniel) (Filed on 3/23/2012) (Entered: 03/23/2012)
173 REPLY (re 156 MOTION Class Clarification and Decertification re 110 Order on Motion to Certify Class ) filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit Excerpts from Deposition of Troy Kincheloe, # 2 Exhibit Excerpts from Deposition of Justin Wright, # 3 Exhibit Excerpts from Deposition of Craig Arno, # 4 Exhibit Excerpts from Deposition of Douglas Earl Black, # 5 Declaration of Daniel P. Struck)(Struck, Daniel) (Filed on 3/23/2012) (Entered: 03/23/2012)
174 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit A − Thomas v. Baca)(Related document(s) 156 ) (Lewis, David) (Filed on 4/5/2012) (Entered: 04/05/2012)
175 STIPULATION WITH PROPOSED ORDER to Depose Incarcerated Witness filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Proposed Order Proposed Order)(Lewis, David) (Filed on 4/5/2012) (Entered: 04/05/2012)
176 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendants' Fifth Supplemental (Expert) Disclosure Statement (Struck, Daniel) (Filed on 4/6/2012) (Entered: 04/06/2012)
177 ORDER by Judge Susan Illston granting 175 Stipulation to Depose Incarcerated Witness (tfS, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)
178 MOTION for leave to appear in Pro Hac Vice − Ashlee B. Fletcher ( Filing fee $ 305, receipt number 0971−6728210.) filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Proposed Order)(Struck, Daniel) (Filed on 4/9/2012) (Entered: 04/09/2012)
179 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Ernesto Avila (30904) (Struck, Daniel) (Filed on 4/9/2012) (Entered: 04/09/2012)
180 Minute Entry: Motion Hearing held on 4/6/2012 before Judge Illston (Date Filed: 4/11/2012). Motion for Class Clarification is submitted. Case continued to 6/29/12 @ 9 A.M. for Motion for Partial Summary Judgment #142 (Court Reporter Lydia Zinn.) (tfS, COURT STAFF) (Date Filed: 4/11/2012) (Entered: 04/11/2012)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 17 of 20

04/11/2012 04/12/2012 04/12/2012 04/18/2012 04/20/2012 04/23/2012 04/24/2012 04/24/2012
04/24/2012 05/08/2012 05/17/2012 05/18/2012 05/23/2012
05/23/2012

Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Motion Hearing set for 6/29/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (tfS, COURT STAFF) (Filed on 4/11/2012) (Entered: 04/11/2012)
181 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Videotaped Deposition of Ruben Cedillo (Struck, Daniel) (Filed on 4/12/2012) (Entered: 04/12/2012)
182 ORDER by Judge Susan Illston signed on 4/11/12 granting 178 Motion for Pro Hac Vice (tfS, COURT STAFF) (Filed on 4/12/2012) Modified on 4/12/2012 (tfS, COURT STAFF). (Entered: 04/12/2012)
183 AMENDED DOCUMENT by Jeff Brummett, John Smith, Transcor America LLC. Amendment to 181 Notice (Other) of Videotaped Deposition of Ruben Cedillo. (Struck, Daniel) (Filed on 4/18/2012) (Entered: 04/18/2012)
184 MOTION for Extension of Time to File Dispositive Motion filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Declaration, # 2 Proposed Order)(Struck, Daniel) (Filed on 4/20/2012) (Entered: 04/20/2012)
185 STIPULATION WITH PROPOSED ORDER Extending Briefing Schedule on Cross−Motions for Partial Summary Judgment filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Declaration Declaration of David C. Lewis)(Lewis, David) (Filed on 4/23/2012) (Entered: 04/23/2012)
186 CERTIFICATE OF SERVICE by Jeff Brummett, John Smith, Transcor America LLC re 181 Notice (Other) and Subpoena upon Ruben Cedillo (Struck, Daniel) (Filed on 4/24/2012) (Entered: 04/24/2012)
187 ORDER Setting Hearing on Motion − Motions terminated: 185 STIPULATION WITH PROPOSED ORDER Extending Briefing Schedule on Cross−Motions for Partial Summary Judgment filed by Jeff Brummett, Transcor America LLC, John Smith. Motion Hearing set for 7/27/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Signed by Judge Susan Illston on 4/23/12. (tfS, COURT STAFF) (Filed on 4/24/2012) (Entered: 04/24/2012)
Set/Reset Deadlines as to 142 MOTION for Partial Summary Judgment. Motion Hearing set for 7/27/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (tfS, COURT STAFF) (Filed on 4/24/2012) (Entered: 04/24/2012)
188 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of the Videotaped Deposition of Gordon Brooks (Struck, Daniel) (Filed on 5/8/2012) (Entered: 05/08/2012)
189 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Defendants' Sixth Supplemental Disclosure Statement (Struck, Daniel) (Filed on 5/17/2012) (Entered: 05/17/2012)
190 STIPULATION WITH PROPOSED ORDER − Joint Motion to Extend Trial Date and Discovery Deadlines filed by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Proposed Order)(Struck, Daniel) (Filed on 5/18/2012) (Entered: 05/18/2012)
191 ORDER: Jury Selection set for 2/19/2013 08:30 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Jury Trial set for 2/19/2013 08:30 AM before Hon. Susan Illston. Pretrial Conference set for 2/5/2013 03:30 PM before Hon. Susan Illston., Motions terminated: 190 STIPULATION WITH PROPOSED ORDER − Joint Motion to Extend Trial Date and Discovery Deadlines filed by Jeff Brummett, Transcor America LLC, John Smith.. Signed by Judge Susan Illston on 5/23/12. (tfS, COURT STAFF) (Filed on 5/23/2012) (Entered: 05/23/2012)
192 MOTION for Leave to File Excess Pages (Unopposed Motion for Administrative Relief to File Oversized Response and Cross−Motion for Partial Summary Judgment) filed by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 5/23/2012) (Entered: 05/23/2012)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 18 of 20

05/23/2012 05/24/2012 05/25/2012
05/29/2012 05/29/2012 06/01/2012 06/18/2012 07/02/2012
07/09/2012 07/10/2012 07/13/2012
07/13/2012 07/31/2012 08/08/2012

193 STIPULATION WITH PROPOSED ORDER for Administrative Relief to File Oversized Response and Cross−Motion for Partial Summary Judgment filed by Jeff Brummett, John Pinedo, Kevin M. Schilling, John Smith, William Tellez, Transcor America LLC. (Struck, Daniel) (Filed on 5/23/2012) (Entered: 05/23/2012)
194 ORDER signed on 5/24/12 by Judge Susan Illston granting 192 Motion for Leave to File Excess Pages; granting 193 Stipulation (tfS, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)
195 RESPONSE (re 142 MOTION for Partial Summary Judgment ) and Cross−Motion for Partial Summary Judgment filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit 1−13, # 2 Exhibit 14−17, # 3 Exhibit 18−22, # 4 Proposed Order)(Lewis, David) (Filed on 5/25/2012) Modified on 5/29/2012 (ysS, COURT STAFF). (Entered: 05/25/2012)
Set/Reset Deadlines as to 195 MOTION for Partial Summary Judgment. Motion Hearing set for 7/27/2012 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. (ysS, COURT STAFF) (Filed on 5/29/2012) (Entered: 05/29/2012)
196 ERRATA re 195 MOTION for Partial Summary Judgment by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit Revised Response/Cross−Motion for Partial Summary Judgment)(Lewis, David) (Filed on 5/29/2012) (Entered: 05/29/2012)
197 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service of Subpoenas (Attachments: # 1 Exhibit Attachments A−G)(Struck, Daniel) (Filed on 6/1/2012) (Entered: 06/01/2012)
198 Supplemental Statement Summarizing Deposition of Gordon Brooks by Jeff Brummett, John Smith, Transcor America LLC. (Struck, Daniel) (Filed on 6/18/2012) Modified on 6/19/2012 (ysS, COURT STAFF). (Entered: 06/18/2012)
199 RESPONSE (re 195 MOTION for Partial Summary Judgment ) PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS−MOTION FOR PARTIAL SUMMARY JUDGMENT AND REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed byKevin M. Schilling. (Attachments: # 1 Declaration of Michelle Estrada Re: E−filing Failure, # 2 Declaration Supplemental Declaration of Karen Snell, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Schwartz, Andrew) (Filed on 7/2/2012) (Entered: 07/02/2012)
200 ORDER DENYING MOTION FOR CLARIFICATION AND CLASS DECERTIFICATION 156 (Illston, Susan) (Filed on 7/9/2012) (Entered: 07/09/2012)
201 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Service (Struck, Daniel) (Filed on 7/10/2012) (Entered: 07/10/2012)
202 REPLY in support of re 195 Defendants' Cross−Motion for Partial Summary Judgment filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit 1 − Curtiss Sullivan Deposition, # 2 Exhibit 2 − Declaration of David C. Lewis, # 3 Exhibit 3 − Troy Kincheloe Deposition, # 4 Exhibit 4 − Sondra Pedigo Deposition, # 5 Exhibit 5 − Gordon Brooks Deposition)(Lewis, David) (Filed on 7/13/2012) Modified on 7/16/2012 (ysS, COURT STAFF). (Entered: 07/13/2012)
203 ERRATA re 198 Statement by Jeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit Supplemental Statement Summarizing Deposition of Gordon Brooks (with omitted Exhibit A))(Lewis, David) (Filed on 7/13/2012) (Entered: 07/13/2012)
204 Minute Entry: Motion Hearing held on 7/27/2012 before Susan Illston (Date Filed: 7/31/2012). Motions for Partial Summary Judgment are Submitted. (Court Reporter Sahar Bartlett.) (tfS, COURT STAFF) (Date Filed: 7/31/2012) (Entered: 07/31/2012)
205 ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT 142 195 (Illston, Susan) (Filed on 8/8/2012) (Entered: 08/08/2012)

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 19 of 20

09/04/2012
09/11/2012 09/12/2012
09/25/2012
10/03/2012 10/04/2012 10/11/2012 11/02/2012 11/19/2012 11/20/2012 11/20/2012 11/29/2012 12/04/2012
12/05/2012
12/05/2012 12/10/2012 12/12/2012

206 MOTION to Amend/Correct 110 Order on Motion to Certify Class filed by Kevin M. Schilling. Motion Hearing set for 10/12/2012 09:00 AM before Hon. Susan Illston. Responses due by 9/18/2012. Replies due by 9/25/2012. (Attachments: # 1 Declaration Karen Snell Declaration, # 2 Exhibit, # 3 Proposed Order)(Schwartz, Andrew) (Filed on 9/4/2012) (Entered: 09/04/2012)
207 STIPULATION WITH PROPOSED ORDER to Extend Briefing Schedule on Plaintiffs Motion to Amend Class Certification filed by Jeff Brummett, John Smith, Transcor America LLC. (Lewis, David) (Filed on 9/11/2012) (Entered: 09/11/2012)
208 ORDER signed on 9/11/12 by Judge Susan Illston granting 207 Stipulation. Pursuant to Civil Local Rules 6−1, 6−2, and 7−12, the parties hereby stipulate to grant Defendants until September 25, 2012 to file their Response to Plaintiffs Motion to Amend Class Certification, and allow Plaintiffs until October 5, 2012 in which to file their Reply. The hearing date of October 12, 2012 is not affected by this requested extension. (tfS, COURT STAFF) (Filed on 9/12/2012) (Entered: 09/12/2012)
209 RESPONSE (re 206 MOTION to Amend/Correct 110 Order on Motion to Certify Class ) filed byJeff Brummett, John Smith, Transcor America LLC. (Attachments: # 1 Exhibit A, # 2 Declaration David C. Lewis (Exhibit B), # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Lewis, David) (Filed on 9/25/2012) (Entered: 09/25/2012)
212 *Letter from Troy Roberts to the Court. (Attachments: # 1 env.)(ysS, COURT STAFF) (Filed on 10/3/2012) (Entered: 10/17/2012)
210 REPLY (re 206 MOTION to Amend/Correct 110 Order on Motion to Certify Class ) filed byKevin M. Schilling. (Schwartz, Andrew) (Filed on 10/4/2012) (Entered: 10/04/2012)
211 ORDER ON PLAINTIFFS' MOTION TO AMEND 206 (Illston, Susan) (Filed on 10/11/2012) (Entered: 10/11/2012)
213 NOTICE by Jeff Brummett, John Smith, Transcor America LLC of Intent to Argue Resumption of Statute of Limitations on August 8, 2012 for Future Claims (Lewis, David) (Filed on 11/2/2012) (Entered: 11/02/2012)
214 *Letter dated 11/14/12 from Scott R. Wilcox to the Court. (ysS, COURT STAFF) (Filed on 11/19/2012) (Entered: 11/20/2012)
215 ORDER SETTING CASE MANAGEMENT CONFERENCE (Illston, Susan) (Filed on 11/20/2012) (Entered: 11/20/2012)
Set/Reset Hearing Further Case Management Conference set for 12/3/2012 04:00 PM in Courtroom 10, 19th Floor, San Francisco. (tfS, COURT STAFF) (Filed on 11/20/2012) (Entered: 11/20/2012)
216 JOINT CASE MANAGEMENT STATEMENT filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 11/29/2012) (Entered: 11/29/2012)
217 Minute Entry: Further Case Management Conference held on 12/3/2012 before Susan Illston (Date Filed: 12/4/2012), CASE REFERRED to Magistrate Judge Spero for Settlement Conference. (Court Reporter n/a.) (tfS, COURT STAFF) (Date Filed: 12/4/2012) (Entered: 12/04/2012)
218 Notice of Settlement and Order Setting Settlement Conference before Magistrate Judge Joseph C. Spero. Settlement Conference set for 1/10/2013 at 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 12/5/12. (klhS, COURT STAFF) (Filed on 12/5/2012) (Entered: 12/05/2012)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Settlement (rmm2S, COURT STAFF) (Filed on 12/5/2012) (Entered: 12/05/2012)
219 Proposed Order Approving Plan to Provide Class Notice by John Pinedo, Kevin M. Schilling, William Tellez. (Attachments: # 1 Exhibit 1)(Merin, Mark) (Filed on 12/10/2012) (Entered: 12/10/2012)
220 ORDER APPROVING PLAN TO PROVIDE CLASS NOTICE re 219 Proposed Order filed by William Tellez, Kevin M. Schilling, John Pinedo. Signed by Judge

Case: 3:08-cv-941 As of: 10/26/2017 11:16 PM PDT 20 of 20

12/21/2012 01/10/2013 01/31/2013
04/02/2013 04/04/2013 05/15/2013 05/24/2013 12/16/2014

Susan Illston on 12/12/12. (Attachments: # 1 Exhibit)(tlS, COURT STAFF) (Filed on 12/12/2012) (Entered: 12/12/2012)
221 NOTICE by Jeff Brummett, John Smith, Transcor America LLC regarding service of Defendants' Seventh Supplemental Disclosure Statement (Struck, Daniel) (Filed on 12/21/2012) (Entered: 12/21/2012)
222 Minute Entry: Settlement Conference held on 1/10/2013 before Magistrate Judge Joseph C. Spero. Case settled. (Court Reporter Kathy Sullivan.) (klh, COURT STAFF) (Date Filed: 1/10/2013) (Entered: 01/10/2013)
223 ORDER DISMISSING CASE with prejudice. Within 90 days from the date hereof, that settlement has not in fact occurred, the foregoing order shall be vacated and this cause shall forthwith be restored to the calendar for further proceedings. Signed by Judge Susan Illston on 1/31/13. (tfS, COURT STAFF) (Filed on 1/31/2013) Modified on 1/31/2013 (ysS, COURT STAFF). (Entered: 01/31/2013)
224 STIPULATION WITH PROPOSED ORDER FOR AMENDMENT OF ORDER OF DISMISSAL UPON SETTLEMENT filed by Kevin M. Schilling. (Schwartz, Andrew) (Filed on 4/2/2013) (Entered: 04/02/2013)
225 ORDER by Judge Susan Illston granting 224 Stipulation AMENDMENT OF ORDER OF DISMISSAL (tfS, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
226 MOTION to Relate Case to 13−1580−YGR filed by Kevin M. Schilling. (Attachments: # 1 Declaration, # 2 Proposed Order)(Schwartz, Andrew) (Filed on 5/15/2013) Modified on 5/16/2013 (ysS, COURT STAFF). (Entered: 05/15/2013)
227 Order by Hon. Susan Illston granting 226 Motion to Relate Cases C−08−0941 SI and C−13−01580 YGR.(tlS, COURT STAFF) (Filed on 5/24/2013) (Entered: 05/24/2013)
228 *Letter dated 12/8/14 from Gregory Lowe to the Court re status of this action. (ysS, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/17/2014)

 
 TransCor America, LLC v. Schilling, 131 S.Ct. 1044 (Mem) (2011)

131 S.Ct. 1044 Supreme Court of the United States
TRANSCOR AMERICA, LLC, et al., petitioners, v.
Kevin M. SCHILLING, et al.
No. 10–468. | Jan. 24, 2011.
Opinion

Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.
Parallel Citations 178 L.Ed.2d 864, 79 USLW 3246, 79 USLW 3431, 79 USLW 3434
	  

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