1 LAW OFFICES OF MA.R.K E. MERIN Mark E. Merin, SEN. 043849
2 Jeffrey I. Schwaxz,child, SBN. 192086 2001 P. Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-69t 1
4 Facsimile: (916) ~47-8336
llraail: mark@maxkmcrir~,com 5
CASPER, MEADOWS & SCHWARTZ
Andrew C. Schwartz, SBN 64578 2121 North California Blvd.., Suite 1020
7 Walnut Creek, CA 94596 Tel~hone: (925) 947-1147
8 Facsimile: (925) 9,$7-1131 Email: scI~ ..w..artz @,emslaw.eom

Attorneys for Plaintiffs t0
I1
12

~0o" UNITED STATES DISTRICT COURT

13

14

ROSALETY BARNETT, and all others similarly CASE NO: 15 situated,

16

Plaintiffs,

CLASS ACTION COMPLAINT

17

DEMAND FOR JURY TRIAL

18 COUNTY OF CONTRA COSTA, CONTRA

:9

COSTA COUNTY SHERWF’S DEPARTMENT, CONTRA COSTA COUNTY $t-IERI~F

WARREN E. RUPF, Individually and in His 2O Off~e~s_l (~apaa{ty, CONTP-Uk COgTA COUNTY

21

SH.ERII~F’S DEPUTINS DOES I THROUGH t00, and ROES 1 THROUGH 20, INCLUSIVE,

22

Defendants.

23

24

2~

26

I:O$~.L~TY tIAIO~TT, ~.t lfl "4, COUNTT 01: CON:’I~A COG~ ~

1 PLAINTIFF ALLEGES:
2 INTRODUCTION
3 This is an action for declaratory and injunctive relief, damages, and punitive damages against
4 the COUNTY OF CONTR_A COSTA, CONTRA COSTA COUNTY SHERIFF’S DEPARTMENT,
5 CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, Individually and in Hi~ Official
6 Capacity, CONTRA COSTA COUNTY SHERIFF’S DEPUTIES sued under their fictitious names as
7 DOES 1 THROUGH 100, and ROES 1 TIt_R.OUGH 20, for violations ofplaintiff’s constitutional
8 rights resulting from application of CONTRA COSTA County’s and the Sheriff s policies, practices,
9 ~nd customs concerning the use of strip searches ~md visual body cavity searches in CONTRA COSTA
10 County Jails. Plaintiff. seek~ an order declaring illegal defendants’ policy of subjecting det~inee~ in
11 tlaeir custody to strip and visual body cavity searches before they are arraigned and without having any
12 reasonable suspicion that the searches will be productive of contraband.
13 Defendants’ strip search and visual body cavity search policies, prattle.ca, and customs violate
14 those rights of plaintiff, and all those she represents, that are secured by the Fourth and Fourteenth
15 Amendments to the United States Constitution and c-ntitle plaintiff, and all tho~e similarly situated, to
16 recover damages under the Federal Civil Rights Act (42 U.S.C, § 1983).
17 Additionally, plair~tiff ~ncludes, on behalf efSerself and on behalf of all.those she represents,
18 ~upplemental claims under California state law ~gainst defendants: i) for violation of California Penal
19
Code § z~030 .which prohibits pre-m’raignment gtrip ~earches of most misdemeanants and provide~ for
mlnlmu.rn dmrnmNes o£$1,000 for each illegal zeaxchi ~-~d. 2) for vielati~,~a of~;h~ ]~a,n¢ Civil Rights
(California Civil Code § ~2 and § 52, l(b)) pursuant to which plaintiff and each sirn~larly situated
person denied a stamtory~ state~ federal~ or constitutional right i~ entitled to recover a minimum o£ ’ 23
$4,000 for each violation.
ROSAI.t~TV tlARNETT, gt ~1. v. COUNTY OF CONTRA COSTA, ~t al.

.1

JURISDICTION

2

This action is brought pu.rsaant to z~2 USC §§ 1983 and 1988, and the Fourth and Fourteenth

3 Amen0maents to the United States Constitution, Jurisdiction is founded upon 28 USC §§ 1331 and

4 1341 (3) and (4) and the aforementioned statutory and constitutional provisions.

5

1. Under 28 USC § 1367(a) the Court has supplemental jurisdiction over the state claims

6 alleged herein.

7

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

PARTIES

9

3. Plamtiff ROSALETY" BARNETT, and all those similarIy situated, are, and at all

10 material times herein, Were citizens of the United States ~d residents of the state of California who

11 were arrested within the period beginning two (2) years before the filing of this Complaint, and

12 continuing to this date, and who were subjected to strip and/or visuat body cavity searches at a

13 CONTRA COSTA County Jail (hereinafter referred to as the "CONTRA COSTA County Jail’), prior

to being arraigned and/or without the defendants first having, and recording in writing, a reasonable

~uspicion that the searches would be productive of contraband or weapons.

16

4. Defendants boerced, forced, and compelled ptaintiffROSALETY BA.RNETT to give a

17 urine sample without legal justification for requiring same. Moreover, defendants coerced, forced, and
18 compelled plaintiffROSALETY BARNETT to give a urine sample in an area of the CONTP~

19 COSTA County Jail that was not sufficiently private so as to prevent persons not participating in the

20 collection of the ~ample from observing the collection. Furthermore, defendants required plaintiff to 21 provide the urine sample while being directly observed by defendants’ male and female officers.

22

5. Defendant CONTRA COSTA COUNTY SHERIFF WAR2,.EN E. RLrKF is, and at all

23 materlal time~ referred to herein, was the duly elected Sheriff of the COUNTY OF CONTRA C

2~- responsible for administering the Jail facilities and for malting, overseeing0 and implementing the

25 policies, practices, and customs challenged herein relating to the operation of the CONTRA COSTA

26 County Jail. He is sued in his individual and official capacities.

6. Defendanm CONTRA COSTA COUNTY SHER~F DEPUTIES sued h~¢in by ~eir

fictitious n~¢s (Doe~ 1 ~ough 100) ~ all deput.ies who, as p~ of~~ duties at ~e CO~ COSTA Cowry Jail~ subjected phinfiff, ~d AI ~os¢ she r~res~ts, to pr¢-~A~en~ $~p ~or

Asual body ca~ sc~ches wi~out having, ~d recordinE in ~t~E, a reasonable suspicion ~at ~

s¢~¢hes woul~ be productive of ¢ontr~b~d or weapons. F~he~or¢, D#f~nd~ts CONT~ 6 COSTA CO~Y S~F DEPUTIES sued herein by ~ir fiodtious n~s ~o~s 1 ~ou~ ~) ~e.
sll d~ufi~s who, ~ p~ of ~eir duties a~ the CONT~ COSTA Co~ty 7~I~ coer~ed~ forced~ ~d

oomp~lt~d p~AndffROSALETY B~ETT to ~w a ~ne s~pl~ in a non-private s¢~ing ~d wi~o~ proper

I0

7. At all material fim~s mentioned h~¢[n, ~ach of ~e defenders w~ aofing und~ ~

II color of law, to wit, under color of statutes, ordi~es, regulations, policies, customs ~d usages of

12 the state of California, ~e CO~TY OF CONT~ COSTA ~or Ne CONT~ COSTA CO~TY

13 SHELF’S DEP~TMENT.

14

8. Defend~ts whose n~es ~e not now ~own ~d who ~e sued by the fictitious n~es

ofROES 1 ~ough 20, ~e N1 agents ~&or employees of one or ~o~ of the oth~ a~ed

161 def~d~tg who ordered, condoned, au~orized, cove~ed up, or were oNe~ise associated with. ~he

17 ~plementafion of the illegal policy ~d practices relating to s~ip ~earches complained of herein,

18

9, Defender CO~TY OF CO~ COSTA is, ~d at N1 mutual times ref~ed to

19 h~ein, was a division of the state of Califomi~ ~.at mNnt~ed or pe~itted an official policy or

20 custom or practice causing or pe~itting lhe occu~oe of ~e t~e~ of~ongs complained ofh~ein, 21 which ~ngs d~aged plaid.tiff, ~d N1 ~o~e simH~t.y situated, as hereto atleged. Plaintiff’s

Nlegations agmst ~e CO~TY ~e based on acts ~d omissions of ~e SHE~P ~d Ns DEPUTES

~d on acts ~d o~ssions ofpersonz who ~e CO~TY employees, ~d on ~e CO~TY’s breaoh of

2~ it~ duty to protect plaintiff, and all ~.ose she represents, ~om Ne ~ong~l conduct of said p~son~ ~d 25 mployees,

26

COUNT"t"

i0. Defendants CONTRA COSTA COIJNTY SHERIFF’S DEPARTMENT and CONTRA

2 COSTA COUNTY SHERIFF WARREN E. RUPF, in his Individual and Official Capacity, also 3 maintained or permitted an official policy or custom of caushlg or permitting the occurrence of the

4 types of wrongs complained of herein, which wrongs damaged plaintiff, and all those similarly situated, ~s herein alleged.

6

11. Class action plaintiffs are those similarly situated who, during the period beginning two

7 (2) years before the filing of this Complaint, and continuing to this date, were subjected by defendanis

8 to pro-arraignment strip and/or visctal body cavity searches without defendants having, and recording

9 in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.

10

FACTS

11

12, On or about March 1, 2004, plaintiffROSALET¥ BARNETT (hereinafter referred to

12 as "plaintiff’) was fs_lsely arrested for allegedly resisting arrest. Plaintiff was taken to the CONTRA

13 COSTA County Jail in Martinez, California, where she was coerced, forced, and compeIled to produce 14 a urine sample while being directly observed by male deputies (DOES 1 and 5).

15

13. Plaintiff, like all those she represents, was also forced to di~:obe completely in front of

16 a deputy who directed plaintiffto bend over, squat, and cough and to spread her buttocks and labia so

1’~ that her vaNnal and anal cavities could be visual inspected.

18

14. Within six (6) months of the aforesaid visual body cavity search, plaintiff filed a group.

19 Govenament Tort Claim for hersetf and for all persons silnilarly situated (a copy of said claim i~

20 attached hereto as Exhibit "A", and incorporated herein to the extent relevant by this reference),

21 Plaintiff’s group claim was denied on or abot~t September ld-, 2004, allowing the f~ling of this class

22 action complaint on state ~tatute and constitutional vioIatio~a~ as well as for her individual claim

23 reIati~tg to the unjustified urine colIection.

24

15. Plaintiffis informed mud believes, ~d therefore alleges, that defendant~ routinely

follow their policy, practice, and custom of subjecting pre-arraigramem de*ainees, iaelu.ding plaintiff, 26¸

1 and all those she represents, to ~fr.ip and visual body cavity.scorches without first having, and recordLug

2 in writing, a reasonable suspicion that the search will b.e productive of contraband or weapons.

3

l. 6. Plaintiff is informed and believes, and thereon alleges, that defendants have the ability

4 to identify all. such similarly situated plaintiffs, specifically those who, while in defendants’ custody, at

the CONTRA COSTA County Jail within two (2) years prior to the filing of this Complair~t, were

6 subjected to strip searches and/or visual body cavity searches prior to arraignment without defer~dants

7 having first, and reeordir~g, a reasonable suspicion that the searches would be productive of contraband

8 or weapons.

9

17. Defendant CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF is personally

10 responsibl~ for the promulgation and continuation of the strip search policy, practice, and custom

11 pursuant to which plaintiff, and those she represents, were subjected.

t.2

18. As a result of being subjected to the strip searches complained of herein, plai~atiff, and

t3 each of the persons similarly situated, suffered physical, mental, and emotional distress, i~avasion Of

14 privacy, at~d violation of due process of law and state and federal statutory and cor, stitu_tional rights,

and is entitled to recover damages according to proof but, at a minimum, $1,000 as specified in

16 California Penal Code § 4030@) and $4,000 as specified in California Civil Code § 52 and § 52.1Co)~

17

1.9. As a resuIt of being unjustit~ably coerced, forced, and compelled to provide a urine

18 sample and to do so while beir~g directly observed by male deputies of the CONTRA COSTA Count

19 Jail as complairaed of herein, plaintiff s~ffered physical, mental, and emolior~al distress and violation of

20 due process of law and state ~d federal statutory and constitutionaI rights, and is entitled to recover

21 damages according to proof, but a minimum of $4,000 as specified in California Civil Code § 52 and §

22 52.1(5).

23

CLASS CLAIMS

24

20. The strip and visual body cavity searches to which plaintiff, and all those similarly

25 situated, were subjected were performed pursuant to policies, practices, and customs of defe~adants

215 CONTRA COSTA COUNTY SHERNF WARN~N E. RUPF, CONTRA COSTA COUNTY

~O:/,AhETY I~Alla~TI’, =~ at. v. COUNTY Of’ C0~I’RA COSTA, ~. Ilk

T~.’~ 6 of 1 ~ CLASS ACTION COMIq_~II~T

11 SHER]YFS DEPARTMENT, COUNTY OF coNTRA COSTA, the individual SHERIFF’S

DEPUTES sued herein by the fictitious names I t~ough I00, ~d th~ {ndi~du~s whose n~es

3 not now ~o~ ~d who ~e sued by ~e fictitious ~ of ROE~ 1 ~ough 20, The seethes

4 complaAed of heroin w~e perfo~ed without reg~d to ~e nat~e of~e alleged off~se for which

ptMnfiff, ~d all those simil~ly simated~ had be~ ~es~ed, wi~out regmd to whe~er or mot pl~tiff,

6 or those ~he represent% was eligible for cite ~d release ~der Penal Code ~ 853.6, without reg~d to

7 where, or not plaintiff, aM each of those simil~ly ~ituat~d,

~s or h~ own r~o~iz~ee. F~e~ore, ~e se~ehcs eompl~ed ofh~ei~ were perfo~ed without

9 defenders hang ~ reasonable bel~ef~at

10 possessed weapons or conwab~d~ ~d ~o~e f~s berg ~ieulated ~d recorded in a sup~isor-

11 approwd

12

2 ~. Pl~nfiffbr~gs ~is ae~on o~ her o~ b~h~f ~d on behalf of all p~rsons simil~ly

13 situated p~su~t to Rule 23, Federal Rule~ of Civil Proced~e.

14

22. The class is defined to include all persons who, in ~e p~od from ~d including two (2)

15 ye~ prior to the filing of~is Compl~nt, ~d continuing ~til

16 pr~ctice~ complained of herein cease, w~e ~e~ted ~d subjected to a pre-~ai~ent s~p ~or

17 ~sual body cavi~ se~ch at the CONT~ COSTA County JN1 wi~ut defenders firs~ having, ~d

18 recording in ~ting, a reasonable suspicion that ~e se~c~ would be productive of con~ab~d or

19 weapons.

20

23. ~ accord~ce wi~ Federal Rules of Civil Proeed~e, Rule 23(a), the memb~s of the

21 class ~e so ~ous ~at joinder of all members is Jmpraotioal. P1NJtiff does not ~ow Ne exact

22 nmb~ of class members. Pl~ntiffi~ info~ed ~d believes, ~d Nereupon Nleges, t~t ~ere

23 more tS~ 10 pe;,ons per day who

24 subjected to the se~ches complained of herein ~ a result of defend~ts’ policy, p~tice, ~d cus~m

25 relating ~ sNd ~e~ches.

26

CLASS ACTION

24. In accordance with Fed~al Rules of Civil Proced~e, Rule 23(a), plaintiff is informed and believes, and thereupon alleges, that there are many questions of fact commo~a to the class including, but not limited to: (1) whether defendant.~ routinely subject alI persons arrested to visual
body cavity searches prior to arraignment if they intend such persons to be housed in the CONTRA
COSTA County Jail; (2) whether persons axe subjected to visual body cavity searches prior to arraigrxmem without there being any reasonable suspicion, based on specific or affordable facts, to believe any partieular arrestee has Concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a visual body cavity search; (3) whethe~ the visua.1 body cavity searche~ are conducted in an axea ofpriYacy so ~at the searches caxmot be observed by persons not I0 participating in the searches; sad, (4) whether the visual body cavity searches are reasonably related to 11 defendants’ penological interest to maintain the security of the jail and whether or not there are les~ 12 intrusive methods for protecting any such interest.
25. in accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffis informed and believes, and thereupon alleges, that there are many questions of law common to the class including, but are not Iimhed to: (1) whether defendant~ may perform vi~uaI body cavity searche~ on persons prior to their arraignment without reasonable suspicion, based on specific or artieulable facts, l? to believe any particular prearraignment detainee has concealed drugs, weapons and/or contraband which would likely be discovered by a visual body cavity search; (2) whether defendar~ts may perform ~9 visual body cavity searches on persons withoxtt first reasonably relating the use of the visual body 2O cavity search to defendants’ penological interest to maintain the ~ecurity of the jail and determining if 21’ there is a less intrusive method to protect that interest; (3) whether visual body cavity s catches m~y be 22 condttdted in areas where the search can be observed by people not participating in the search without violating plaintiffs’ State and Federal constitutional rights and plaintiffs’ State statutory rights; (4) 2~ whether or not defendants’ str/p search policy and procedure is in accordance with the State and/or 2~ Federal Constitution; (5) whether or not plaintiffs’ claims ~nder Per~al Code,§ d.030 are barred by the 2~ provisions of Government Code § 84,*.6; and, (6) whether or not defendants have an immunity defense

RO~ALIgTY BARNI~TT. et ~I. v. OOONIY 01~ CONTI~_~ COST& *t

¢I.A$~ ACTION

1 to plaintiffs’ claims under Civil Code §§ 52 and 52.1, and whether or not those claims are actionable

2 in a class action.

3

26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), We elaim~ of the

4 representative plaintiff is t~ical of the class. Plaintiff was searched, prior to arraigtwnent, without

5 rea~onable suspicion that a strip or visual body cavity search would produce drugs, weapons or

6 contraband (and without the facts supporting aay such suspicion being articulated in a supervisor-

7 approved writing). Representative plaintiff’has the same intere~t~ and ~tffered the same type of

8 injuries a~ all of the class members. Plaintiffs claims arose because of defenders’ policy, practice,

9 and custom of subjecting arrestees to s~ip and/or visual body cavity searches before arrai~rnent ¯

10 without havir~g, and recording in writing, a rea~or~abIe suspicion that the search would be productive of

11 contraband or weapons. Each class member suffered actual damages as a result of being subjected to a

visual body cavity search. The actual damages suffered by the representative plaintiffis similar in type

13 and amount to the actual damages suffered by each class member.

141

27. In accorda~ace with Federal Rules of Civil Procedure, Rule 23(a), the representative

I5 plaintiffwill fairly and adequately protect the class interests. Plaintiff’s interests are consistent with

t6 ~d not matagori~tie to the imerests of the elas~.

17

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

18 separate actions by individual members of the Class would create a risk that i~co~sistent or varying

19 adjudications with respect to individual members of the class would establish incompatible standards

2O of conduct for the.pm’ti.es opposing the complaJm.

21

29. In accordance with Federal Rules of CiviI Proeedgre, Rule 23(b)(1)(B), prosecutions of

22 separate actior~s by individua/members of the class would create a risk of inconsistent adjudications

23 with respect to individual member~ of the class which would, as a practical matter, substantially impedr

24 or impede the interests of the other members of the class }o protect their irnerests.

25

30. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), pla/ntiffis

26 informed and believes, aM thereupon alleges, that defendant~ have acted on grounds generally

applicable to the class, thereby malting appropriate the final injunctive or declaratory relief with respeqt to the class as a whole.
31. In accordance with Federal Rules of Civil Procedure, Rule 23Co)(3), this ela~s action is superior to other available methods for the fair and equitable adjudication of the controversy between the.parties, Pl~in~iff is informed and believe~, and thereupon alIeges, that the intezests of members of the class in individually controlling the prosecution of a separate aaion is low, in that most class members would be unable individually to prosecute any action at a11. Plaindffals0 is informed and believes, and thereupon alleges, that the amounts at stake for individuals are so sm~/1 that suits would be impracticable. Plmntiffis informed and believes, and thereupon ~lleges, that most members of the cla~ will not be able to .find counsel to represen~ them. Plaintiffi~informed and, believes, and thereupon alleges, that it is desirable to concentrate all litigation i~ one forum because all of the claims arise in the same location; i.e., the CONTRA COSTA County Jail. I~ will promote judicial efficiency to resolve the commo~ questions of law and fact in one forum, rather Nan in 14 multiple cou.rt~.
32. Plaintiff does not k~ow the identities ofaI1 of the clas~ members. PIail~tiffis informed 16 and believes, and thereupon allege~, that the identitie~ of the class member~ may" be ascertained from 17 records m~,iatained by the COUNTY OF coNrm~_ COSTA and defendant SHERIFF WARREN
RUPF and defendant CONTRA COSTA COUNTY SHERIFF’S DEPARTMENT. Plaintiffi~ 19 informed and believes, and thereupon allege~, that defendants" records reflect the identities, including ~0 addresses and telephone numbers, of the per~on~ who have been held in ¢~stody i~ the CONTRA
COSTA County Jails. Plaint/ff is informed aad believes, and thereupon alleges, that record~ of, and maintained by defendants reflect who was subjec~ to a strip and/or visual body cavity search, when the search, occ~-t-~ed, where the search occurred, whether any reasonable suspicion for the search existed mad was recorded i~ a supervisor-approved waiting, when person~ searched were m-raigned, and the charges on which ~uch persons were arrested. Plaintiff is informed and believes, and thereupo~ alleges, that at1 of the foregoing information is contained in defendartt~’ computer system and that the

information necessary to identify the class members, by last known addresses, and the dates and

2 reasons for their arrests and/or release from custody, is readily available flom said computer system.

3

33_ In accordance with Federal Rules of Civil Procedure, Rule 23Co)(3), .class members

4 must be famished with the best notice practicable trader the circumstances, including individual notice

5 to all m~mbers who can be identified through reasonable effort. Plaintiff is informed and believes, and 6 thereupon alleges, that defendants’ computer records contain a last known address for class members. 7 Plaintiff contemplates that individual notice will be given to class members at such last known address

8 by first class mail. Plaintiff contemplates that the notice will mfolm class members of the following:

i. The pendency of the class action and. the issues common to the class;

10

ii. The natm-e of the ~ction;

Ii

iii. Their right to "opt out" of the action within a given time, ha which event they

12

wilI not be bound by a decision rendered ir~ the elas~ action;

13

iv. Their fight, if they do not "opt out," to be represented by their ov~ counsel and

14

to enter ~ appearance in the case; otherwise they will be represented by the

named class plaintiff(s) and the named class plaintiff(s)’s counsel; ~d

16

v. Their right, if they do not "opt out/’ t~ ghare in any recovery in favor of the

17

class, and conversely to be bound by ~y judgment on the common issues

adverse to the class.

COU~T ONE

(Violation of Fourth and Fom’teenth Amendments to the U.S. Constitution

2O

on behalf of PIaintiff a~d alt persons similarly sit"uated) ’

21

34. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

searches complained of herein violated plaintiff’s, and all ~ose similarly si~ated’s, rights under the

Fourth Amendment to be free from unreasonable searches and seizures, violated plaintiff" s, and all

24 those similarly situated’s, rights to due process and privacy trader the Fourteenth Ametadmem, and

25 directly and proximately damaged plair~tiff, and all those similarly situated, as herein alleged, entitling 26

. plaintiff, and all class members, to recover damages for said constitutional violations pursuit to 42

U.S.C. § 1983.

WHEREFORE, pl.airttiffprays for relief, for herself and for all person, ,imilarly situated, as

hereunder appears.

COUNT TWO

(California State Unruh Civil Rights Act, Civil Code §§ 52 arid 52.1,

.6

on belaalf of Plaintiffs and all persor~s ~imilarly situated)

7

35. Defendants’ policies, practices, and customs regarding the s~p and visual body cavity

searches complained of herein violated the ri~ts of plaintiff, and all those similszly ~ituated, to

9 privacy as secured by Article I, Section 1 of the California Cortstitution md di:ectly and proximately

10 damaged plaintiff, and each of those similarly situated, as herein alleged, entitling said plat, tiff, and

1I each of those she represer~ts, to recover a minimum of $4,000 each pursuant to California Civil Code §

12 52.1 mad § 52, in addition to other damage~.

I3

WI--IEREFORE, plaintiffprays for relief, for herself ~d for all per~on.~ ~imilarIy situated, as

14 hereunder appears.

COUNT TFIREE

(Violation of California Penal Code § ~030,

~6

California State Urmah Civil Righta Act, Civil Code §§ 52

~n behalf of Plai~tiff, and all persons ~imilarly gituated)

17

36. Defendants’ policies, practices, and eustom~ regarding the strip a~d visual body cavity

18

searches complained ofherei~a violated rights secured to plaintiff, and all tho,e similarly situated,

19

under California Penal Code § 4030 and directly and proximately damaged plaimiff, arad each of those

20

similarly situated, as heroin alle~ed~ entitlir~g plainti:ff~ zmd each off;hose

21

mi~mmm of $1,000 each pursuast to California Penal Code § 4030(p), mad to further minimum

22

damages of $4,000 each pursuant to California Civil Code § 52.1 a~d § 52, in additio~a to other

23

damages.

241

WHEREFORE, plaintiffprays for relief, for herself and for all persons ~imilarly sima*ecl,

hereunder appears. 26

COUNT FOUR

(California SZate Bane Act, Civil Code {§ 52 and 52.1,

2

on behalf of herself only)

3

37. By unjustifiably coercing, forcing, and compelling plaintiff to provide a urine sample

4 while being observed by male deputies defendants, mad each of them, violated plaintiff s fight to

5 privacy as secured by the California Sate Constitution, Article I, Section 1, and directly and ’

6 proximately damaged plaintiff as herein alleged, entitling said plaintiff to recover a minimum of

7 $4,000 pursuant to California Civil Code § 52.I and. § 52, m ~u:tdition to other damages.

8

WHEREFORE, plaintiffprays fo.r relief for herself as hereunder appears.

9

COUNT FIVE

(Invasion o f Privacy, on behalf of herself only) t0

38. By unjustifiably coercing, forcing, mad compelling plaintiff to provide a urine sample

11 while being observed by male deputies defendants, and each of them, violated plaintiffz right to

12

privacy as secured by the California Sate Constitution, Article i, Section 1, and directly and 13

proximately damaged plaintiffby causing her emotional distress, humiliation, and emb~rassment. 14

WHEREFORE, plaintiff prays for relief for herself as hereunder appears.

t5

PRAYER FOR RELIEF 16
WHEREFORE, plaintiff, on behalf of herself and all those similarly situated, seek~ judgment

17 as follows:

18
1_ For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and 19

permanently, defendants’ policies, practices, and customs of s’abj ecting pre-arrai~ment detainees to

20

et~--~p axed’ visual body cavlt~ scsa-c1~o~ w~thou± kavln~ a ~"¢asonable susp~o~on hlaat ~uch ~earches wo’t.l-l~
21 be productive of coztraband or w-capons;
22

2. Certification as a class action of plaintiffs complaints concerning defendants’ policies, 23

practice, and customs of subjecting pro-arraignment detainees to strip and visual body cavity searche~ 24

without having a reasonable ,u,picion that such searches would be productive of contraband or

25

weapons;

26

~.OSAI.~TY g~’~-L et ,1. ~, COWNTY OT CONTIL4. COSTA, et at,

CLA~ ~,Ci’zb~

USDC, Nor~l~¢rn Di~lri~, Ca_~ No.

1

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

2 member of the class of plaintiffs, as agair~st all defenders;

3

4. Exemplary damages as against each of the individuaI defer~dants in an amount sufficient

4 to deter and to make an exmnple of those defendants;

5. In addition to compensatory aztd statutory damages as allowed by law, at least $4,000

6 for each plaintiff pursuant to California Civil Code § 52.1 aad § 52, for each violation thereof;

7

6. In addition to compensatory ~d sZatutory damages as allowed by law, at least $1,000

for each plaintiffpursuartt to California Penal Code § 4030;

9

7. Attonaeys’ fees and costz under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

10 California Civit Code § 52. I(h), California Code of CiviI Procedure § 1021,5 mad California Penal

11 Code ; and § 4030(9); and

12

The cost of this suit and such other relief as ~he court finds just and proper.

13 DATED: October 12, 2004

Respectfully submitted,

14

LAW ~FFICE OF MARK E. MEtLIN and.

CASI:~ER, MEADOWS & SCHWARTZ 15

16

17
18 A JURY TRIAL IS DEMANDED.
19

"~¢Iark E. Merin ..... Attorney for Pla~tiffs

Respectfully submitted, 2O

LAW ~FT~C~ OF
21

22

23

24 25

$:’,WipWOr~trlp S ea~r.~ C~ e~ ~I~ ~’~,\ Pl~aclin~’\ C~mpIzg nt.I~,~, 901

By:CASPeR’ MEADOWS & SCHWARTZ~_.~..
Mark E. Merin Attomey for Plaimiff~

26

 
 Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 1 of 14

1 LAW OFFICES OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 Jeffrey I. Schwarzschild, SBN. 192086 2001 P Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 Email: mark@markmerin.com
5 CASPER, MEADOWS, SCHWARTZ & COOK
6 Andrew C. Schwartz, SBN 64578 2121 North California Blvd., Suite 1020
7 Walnut Creek, CA 94596 Telephone: (925) 947-1147
8 Facsimile: (925) 947-1131 Email: schwartz@cmslaw.com
9 Attorneys for Plaintiffs
10 —o0o—
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 —o0o—
14

ROSALETY BARNETT, PETER 15 MORGANELLI, and all others similarly 16 situated,

17

Plaintiffs,

vs. 18

CASE NO: C 04-04437 TEH
FIRST AMENDED CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL

19

COUNTY OF CONTRA COSTA, CONTRA COSTA COUNTY SHERIFF’S

DEPARTMENT, CONTRA COSTA 20 COUNTY SHERIFF WARREN E. RUPF,

Individually and in His Official Capacity, 21 CONTRA COSTA COUNTY SHERIFF’S

DEPUTIES DOES 1 THROUGH 100, and 22 ROES 1 THROUGH 20, INCLUSIVE,

23

Defendants.

24

25 PLAINTIFFS ALLEGE:

26

INTRODUCTION

27

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

28 against the COUNTY OF CONTRA COSTA, CONTRA COSTA COUNTY SHERIFF’S

Page 1 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 2 of 14

1 DEPARTMENT, CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, Individually and

2 in His Official Capacity, CONTRA COSTA COUNTY SHERIFF’S DEPUTIES sued under their

3 fictitious names as DOES 1 THROUGH 100, and ROES 1 THROUGH 20, for violations of

4 plaintiff’s constitutional rights resulting from application of CONTRA COSTA County’s and the

5 Sheriff’s policies, practices, and customs concerning the use of strip searches and visual body

6 cavity searches in CONTRA COSTA County Jails. Plaintiffs seek an order declaring illegal

7 defendants’ policy of subjecting detainees in their custody to strip and visual body cavity searches

8 before they are arraigned and without having any reasonable suspicion that the searches will be

9 productive of contraband.

10

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

11 violate those rights of plaintiffs, and all those they represent, that are secured by the Fourth and

12 Fourteenth Amendments to the United States Constitution and entitle plaintiffs, and all those

13 similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).

14

Additionally, plaintiffs include, on behalf of themself and on behalf of all those they

15 represent, supplemental claims under California state law against defendants: 1) for violation of

16 California Penal Code § 4030 which prohibits pre-arraignment strip searches of most

17 misdemeanants and provides for minimum damages of $1,000 for each illegal search; and 2) for

18 violation of the Bane Civil Rights Act (California Civil Code § 52 and § 52.1(b)) pursuant to

19 which plaintiffs and each similarly situated person denied a statutory, state, federal, or

20 constitutional right is entitled to recover a minimum of $4,000 for each violation.

21

JURISDICTION

22

This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth and

23 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC

24 §§ 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

25

1. Under 28 USC § 1367(a) the Court has supplemental jurisdiction over the state

26 claims alleged herein.

27

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

28 \\\

Page 2 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 3 of 14

1

PARTIES

2

3. Plaintiffs ROSALETY BARNETT, PETER MORGANELLI, and all those similarly

3 situated, are, and at all material times herein, were citizens of the United States and residents of

4 the state of California who were arrested within the period beginning two (2) years before the filing

5 of this Complaint, and continuing to this date, and who were subjected to strip and/or visual body

6 cavity searches at a CONTRA COSTA County Jail (hereinafter referred to as the “CONTRA

7 COSTA County Jail”), prior to being arraigned and/or without the defendants first having, and

8 recording in writing, a reasonable suspicion that the searches would be productive of contraband

9 or weapons.

10

4. Defendants coerced, forced, and compelled plaintiff ROSALETY BARNETT to

11 give a urine sample without legal justification for requiring same. Moreover, defendants coerced,

12 forced, and compelled plaintiff ROSALETY BARNETT to give a urine sample in an area of the

13 CONTRA COSTA County Jail that was not sufficiently private so as to prevent persons not

14 participating in the collection of the sample from observing the collection. Furthermore,

15 defendants required plaintiff to provide the urine sample while being directly observed by

16 defendants’ male and female officers.

17

5. Defendant CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF is, and at

18 all material times referred to herein, was the duly elected Sheriff of the COUNTY OF CONTRA

19 COSTA, responsible for administering the Jail facilities and for making, overseeing, and

20 implementing the policies, practices, and customs challenged herein relating to the operation of

21 the CONTRA COSTA County Jail. He is sued in his individual and official capacities.

22

6. Defendants CONTRA COSTA COUNTY SHERIFF DEPUTIES sued herein by

23 their fictitious names (Does 1 through 100) are all deputies who, as part of their duties at the

24 CONTRA COSTA County Jail, subjected plaintiffs, and all those they represent, to pre-

25 arraignment strip and/or visual body cavity searches without having, and recording in writing, a 26 reasonable suspicion that the searches would be productive of contraband or weapons.

27 Furthermore, Defendants CONTRA COSTA COUNTY SHERIFF DEPUTIES sued herein by their 28 fictitious names (Does 1 through 5) are all deputies who, as part of their duties at the CONTRA

Page 3 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 4 of 14

1 COSTA County Jail, coerced, forced, and compelled plaintiff ROSALETY BARNETT to give a

2 urine sample in a non-private setting and without proper justification.

3

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

4 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages

5 of the state of California, the COUNTY OF CONTRA COSTA and/or the CONTRA COSTA

6 COUNTY SHERIFF’S DEPARTMENT.

7

8. Defendants whose names are not now known and who are sued by the fictitious

8 names of ROES 1 through 20, are all agents and/or employees of one or another of the other named

9 defendants who ordered, condoned, authorized, covered up, or were otherwise associated with the

10 implementation of the illegal policy and practices relating to strip searches complained of herein.

11

9. Defendant COUNTY OF CONTRA COSTA is, and at all material times referred

12 to herein, was a division of the state of California, that maintained or permitted an official policy

13 or custom or practice causing or permitting the occurrence of the types of wrongs complained of

14 herein, which wrongs damaged plaintiffs, and all those similarly situated, as herein alleged.

15 Plaintiffs’ allegations against the COUNTY are based on acts and omissions of the SHERIFF and

16 his DEPUTIES and on acts and omissions of persons who are COUNTY employees, and on the

17 COUNTY’s breach of its duty to protect plaintiffs, and all those they represent, from the wrongful

18 conduct of said persons and employees.

19

10. Defendants CONTRA COSTA COUNTY SHERIFF’S DEPARTMENT and

20 CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, in his Individual and Official

21 Capacity, also maintained or permitted an official policy or custom of causing or permitting the

22 occurrence of the types of wrongs complained of herein, which wrongs damaged plaintiffs, and all

23 those similarly situated, as herein alleged.

24

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

25 two (2) years before the filing of this Complaint, and continuing to this date, were subjected by 26 defendants to pre-arraignment strip and/or visual body cavity searches without defendants having,

27 and recording in writing, a reasonable suspicion that the searches would be productive of 28 contraband or weapons.

Page 4 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 5 of 14

1

FACTS

2

12. On or about March 1, 2004, plaintiff ROSALETY BARNETT (hereinafter referred

3 to as “plaintiff”) was falsely arrested for allegedly resisting arrest. Plaintiff was taken to the

4 CONTRA COSTA County Jail in Martinez, California, where she was coerced, forced, and

5 compelled to produce a urine sample while being directly observed by male deputies (DOES 1 and

6 5).

7

13. Plaintiff, like all those she represents, was also forced to disrobe completely in front

8 of a deputy who directed plaintiff to bend over, squat, and cough and to spread her buttocks and

9 labia so that her vaginal and anal cavities could be visual inspected.

10

14. Within six (6) months of the aforesaid visual body cavity search, plaintiff filed a

11 group Government Tort Claim for herself and for all persons similarly situated (a copy of said

12 claim is attached hereto as Exhibit “A”, and incorporated herein to the extent relevant by this

13 reference). Plaintiff’s group claim was denied on or about September 14, 2004, allowing the filing

14 of this class action complaint on state statute and constitutional violations as well as for her

15 individual claim relating to the unjustified urine collection.

16

15. Plaintiff PETER MORGANELLI was arrested in CONTRA COSTA COUNTY on

17 or about December 3, 2002, on a charge not involving violence, drugs or weapons, and transported

18 to the Contra Costa County Jail in Martinez, California, where, prior to arraignment, pursuant to

19 defendants’ blanket, indiscriminate strip search policy, practice, and custom, he was forced entirely

20 to disrobe and to expose for inspection his buttocks and genitalia without defendants having

21 reasonable suspicion that he was concealing contraband or weapons and without a supervisor

22 approving the strip search in writing.

23

16. Plaintiffs are informed and believe, and thereupon allege, that defendants routinely

24 follow their policy, practice, and custom of subjecting pre-arraignment detainees, including

25 plaintiffs, and all those they represent, to strip and visual body cavity searches without first having, 26 and recording in writing, a reasonable suspicion that the searches will be productive of contraband

27 or weapons. 28 \\\

Page 5 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 6 of 14

1

17. Plaintiffs are informed and believe, and thereupon allege, that defendants have the

2 ability to identify all such similarly situated plaintiffs, specifically those who, while in defendants’

3 custody, at the CONTRA COSTA County Jail within two (2) years prior to the filing of this

4 Complaint, were subjected to strip searches and/or visual body cavitysearches prior to arraignment

5 without defendants having first, and recording, a reasonable suspicion that the searches would be

6 productive of contraband or weapons.

7

18. Defendant CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF is

8 personally responsible for the promulgation and continuation of the strip search policy, practice,

9 and custom pursuant to which plaintiffs, and those they represent, were subjected.

10

19. As a result of being subjected to the strip searches complained of herein, plaintiffs,

11 and each of the persons similarly situated, suffered physical, mental, and emotional distress,

12 invasion of privacy, and violation of due process of law and state and federal statutory and

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

14 $1,000 each as specified in California Penal Code § 4030(p) and $4,000 each as specified in

15 California Civil Code § 52 and § 52.1(b).

16

20. As a result of being unjustifiably coerced, forced, and compelled to provide a urine

17 sample and to do so while being directly observed by male deputies of the CONTRA COSTA

18 County Jail as complained of herein, plaintiff BARNETT suffered physical, mental, and emotional

19 distress and violation of due process of law and state and federal statutory and constitutional rights,

20 and is entitled to recover damages according to proof, but a minimum of $4,000 as specified in

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

22

CLASS CLAIMS

23

21. The strip and visual body cavity searches to which plaintiffs, and all those similarly

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

25 CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, CONTRA COSTA COUNTY 26 SHERIFF’S DEPARTMENT, COUNTY OF CONTRA COSTA, the individual SHERIFF’S

27 DEPUTIES sued herein by the fictitious names 1 through 100, and the individuals whose names 28 are not now known and who are sued by the fictitious names of ROES 1 through 20. The searches

Page 6 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 7 of 14

1 complained of herein were performed without regard to the nature of the alleged offense for which

2 plaintiffs, and all those similarly situated, had been arrested, without regard to whether or not

3 plaintiffs, or those they represent, were eligible for cite and release under Penal Code § 853.6,

4 without regard to whether or not plaintiffs, and each of those similarly situated, were eligible for

5 and/or were released on his or her own recognizance. Furthermore, the searches complained of

6 herein were performed without defendants having a reasonable belief that the plaintiffs, or any of

7 those similarly situated, so searched possessed weapons or contraband, and those facts being

8 articulated and recorded in a supervisor-approved document.

9

22. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

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

11

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

12 two (2) years prior to the filing of this Complaint, and continuing until this matter is adjudicated

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

14 strip and/or visual body cavity search at the CONTRA COSTA County Jail without defendants

15 first having, and recording in writing, a reasonable suspicion that the searches would be productive

16 of contraband or weapons.

17

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

18 the class are so numerous that joinder of all members is impractical. Plaintiffs do not know the

19 exact number of class members. Plaintiffs are informed and believe, and thereupon allege, that

20 there are more than 10 persons per day who are arrested by defendants and/or in the custody of

21 defendants and subjected to the searches complained of herein as a result of defendants’ policy,

22 practice, and custom relating to said searches.

23

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

24 informed and believe, and thereupon allege, that there are many questions of fact common to the

25 class including, but not limited to: (1) whether defendants routinely subject all persons arrested to 26 visual body cavity searches prior to arraignment if they intend such persons to be housed in the

27 CONTRA COSTA County Jail; (2) whether persons are subjected to visual body cavity searches 28 prior to arraignment without there being any reasonable suspicion, based on specific or articulable

Page 7 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 8 of 14

1 facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily

2 cavities which could be detected by means of a visual body cavity search; (3) whether the visual

3 body cavity searches are conducted in an area of privacy so that the searches cannot be observed

4 by persons not participating in the searches; and, (4) whether the visual body cavity searches are

5 reasonably related to defendants’ penological interest to maintain the security of the jail and

6 whether or not there are less intrusive methods for protecting any such interest.

7

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

8 informed and believe, and thereupon allege, that there are many questions of law common to the

9 class including, but are not limited to: (1) whether defendants may perform visual body cavity

10 searches on persons prior to their arraignment without reasonable suspicion, based on specific or

11 articulable facts, to believe any particular prearraignment detainee has concealed drugs, weapons

12 and/or contraband which would likely be discovered by a visual body cavity search; (2) whether

13 defendants may perform visual body cavity searches on persons without first reasonably relating

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

15 of the jail and determining if there is a less intrusive method to protect that interest; (3) whether

16 visual body cavity searches may be conducted in areas where the search can be observed by people

17 not participating in the search without violating plaintiffs’ State and Federal constitutional rights

18 and plaintiffs’ State statutory rights; (4) whether or not defendants’ strip search policy and

19 procedure is in accordance with the State and/or Federal Constitution; (5) whether or not plaintiffs’

20 claims under Penal Code § 4030 are barred by the provisions of Government Code § 844.6; and,

21 (6) whether or not defendants have an immunity defense to plaintiffs’ claims under Civil Code §§

22 52 and 52.1, and whether or not those claims are actionable in a class action.

23

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

24 representative plaintiffs are typical of the class. Plaintiffs were searched, prior to arraignment,

25 without reasonable suspicion that a strip or visual body cavity searches would produce drugs, 26 weapons or contraband (and without the facts supporting any such suspicion being articulated in

27 a supervisor-approved writing). Representative plaintiffs have the same interests and suffered the 28 same type of injuries as all of the class members. Plaintiffs’ claims arose because of defendants’

Page 8 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 9 of 14

1 policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches

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

3 searches would be productive of contraband or weapons. Each class member suffered actual

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

5 by the representative plaintiffs are similar in type and amount to the actual damages suffered by

6 each class member.

7

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

8 plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ interests are consistent

9 with and not antagonistic to the interests of the class.

10

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

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

12 inconsistent or varying adjudications with respect to individual members of the class would

13 establish incompatible standards of conduct for the parties opposing the complaint.

14

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

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

16 inconsistent adjudications with respect to individual members of the class which would, as a

17 practical matter, substantially impair or impede the interests of the other members of the class to

18 protect their interests.

19

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

20 informed and believe, and thereupon allege, that defendants have acted on grounds generally

21 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

22 respect to the class as a whole.

23

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

24 is superior to other available methods for the fair and equitable adjudication of the controversy

25 between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests 26 of members of the class in individually controlling the prosecution of a separate action is low, in

27 that most class members would be unable individually to prosecute any action at all. Plaintiffs also 28 are informed and believe, and thereupon allege, that the amounts at stake for individuals are so

Page 9 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 10 of 14

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

2 thereupon allege, that most members of the class will not be able to find counsel to represent them.

3 Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all

4 litigation in one forum because all of the claims arise in the same location; i.e., the CONTRA

5 COSTA County Jail. It will promote judicial efficiency to resolve the common questions of law

6 and fact in one forum, rather than in multiple courts.

7

33. Plaintiffs do not know the identities of all of the class members. Plaintiffs are

8 informed and believe, and thereupon allege, that the identities of the class members may be

9 ascertained from records maintained by the COUNTY OF CONTRA COSTA and defendant

10 SHERIFF WARREN E. RUPF and defendant CONTRA COSTA COUNTY SHERIFF’S

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

12 records reflect the identities, including addresses and telephone numbers, of the persons who have

13 been held in custody in the CONTRA COSTA County Jails. Plaintiffs are informed and believe,

14 and thereupon allege, that records of, and maintained by defendants reflect who was subject to a

15 strip and/or visual body cavity search, when the search occurred, where the search occurred,

16 whether any reasonable suspicion for the search existed and was recorded in a supervisor-approved

17 writing, when persons searched were arraigned, and the charges on which such persons were

18 arrested. Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing

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

20 identify the class members, by last known addresses, and the dates and reasons for their arrests

21 and/or release from custody, is readily available from said computer system.

22

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

23 must be furnished with the best notice practicable under the circumstances, including individual

24 notice to all members who can be identified through reasonable effort. Plaintiffs are informed and

25 believe, and thereupon allege, that defendants’ computer records contain a last known address for 26 class members. Plaintiffs contemplate that individual notice will be given to class members at

27 such last known address by first class mail. Plaintiffs contemplate that the notice will inform class 28 members of the following:

Page 10 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 11 of 14

1

i. The pendency of the class action and the issues common to the class;

2

ii. The nature of the action;

3

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

4

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

5

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

6

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

7

by the named class plaintiff(s) and the named class plaintiff(s)’s counsel;

8

and

9

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

10

class, and conversely to be bound by any judgment on the common issues

11

adverse to the class.

12

COUNT ONE

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

13

on behalf of Plaintiffs and all persons similarly situated)

14

35. Defendants’ policies, practices, and customs regarding the strip and visual body

15 cavity searches complained of herein violated plaintiffs’, and all those similarly situated’s, rights

16 under the Fourth Amendment to be free from unreasonable searches and seizures, violated

17 plaintiffs’, and all those similarlysituated’s, rights to due process and privacy under the Fourteenth

18 Amendment, and directly and proximately damaged plaintiffs, and all those similarly situated, as

19 herein alleged, entitling plaintiffs, and all class members, to recover damages for said

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

21

WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly

22 situated, as hereunder appears.

23

COUNT TWO

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

24

on behalf of Plaintiffs and all persons similarly situated)

25

36. Defendants’ policies, practices, and customs regarding the strip and visual body

26 cavity searches complained of herein violated the rights of plaintiffs, and all those similarly

27 situated, to privacy as secured by Article I, Section 1 of the California Constitution and directly 28 and proximately damaged plaintiffs, and each of those similarly situated, as herein alleged,

Page 11 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 12 of 14

1 entitling said plaintiffs, and each of those they represent, to recover a minimum of $4,000 each

2 pursuant to California Civil Code § 52.1 and § 52, in addition to other damages.

3

WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly

4 situated, as hereunder appears.

5

COUNT THREE

(Violation of California Penal Code § 4030,

6

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

on behalf of Plaintiffs and all persons similarly situated)

7

8

37. Defendants’ policies, practices, and customs regarding the strip and visual body

9 cavity searches complained of herein violated rights secured to plaintiffs, and all those similarly

10 situated, under California Penal Code § 4030 and directly and proximately damaged plaintiffs, and

11 each of those similarly situated, as herein alleged, entitling plaintiffs, and each of those similarly

12 situated, to recover a minimum of $1,000 each pursuant to California Penal Code § 4030(p), and

13 to further minimum damages of $4,000 each pursuant to California Civil Code § 52.1 and § 52,

14 in addition to other damages.

15

WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly

16 situated, as hereunder appears.

17

COUNT FOUR

(California State Bane Act, Civil Code §§ 52 and 52.1,

18

on behalf of BARNETT only)

19

38. By unjustifiably coercing, forcing, and compelling plaintiff to provide a urine

20 sample while being observed by male deputies defendants, and each of them, violated plaintiff

21 BARNETT’S right to privacy as secured by the California Sate Constitution, Article I, Section 1,

22 and directly and proximately damaged plaintiff as herein alleged, entitling said plaintiff to recover

23 a minimum of $4,000 pursuant to California Civil Code § 52.1 and § 52, in addition to other

24 damages.

25 26 \\\

WHEREFORE, plaintiff prays for relief for herself as hereunder appears.

27 \\\ 28 \\\

Page 12 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 13 of 14

1

COUNT FIVE

(Invasion of Privacy, on behalf of BARNETT only)

2

3

39. By unjustifiably coercing, forcing, and compelling plaintiff BARNETT to provide

4 a urine sample while being observed by male deputies defendants, and each of them, violated

5 plaintiff’s right to privacy as secured by the California Sate Constitution, Article I, Section 1, and

6 directly and proximately damaged plaintiff by causing her emotional distress, humiliation, and

7 embarrassment.

8

WHEREFORE, plaintiff prays for relief for herself as hereunder appears.

9

PRAYER FOR RELIEF

10

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

11 judgment as follows:

12

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

13 and permanently, defendants’ policies, practices, and customs of subjecting pre-arraignment

14 detainees to strip and visual body cavity searches without having a reasonable suspicion that such

15 searches would be productive of contraband or weapons;

16

2. Certification as a class action of plaintiffs’ complaints concerning defendants’

17 policies, practice, and customs of subjecting pre-arraignment detainees to strip and visual body

18 cavity searches without having a reasonable suspicion that such searches would be productive of

19 contraband or weapons;

20

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

21 each member of the class of plaintiffs, as against all defendants;

22

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

23 sufficient to deter and to make an example of those defendants;

24

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

25 $4,000 for each plaintiff pursuant to California Civil Code § 52.1 and § 52, for each violation 26 thereof;

27

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

28 $1,000 for each plaintiff pursuant to California Penal Code § 4030;

Page 13 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT

USDC, Northern District, Case No. C 04-04437 TEH

Case 3:04-cv-04437-TEH Document 28-1 Filed 08/11/2005 Page 14 of 14

1

7. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

2 California Civil Code § 52.1(h), California Code of Civil Procedure § 1021.5 and California Penal

3 Code ; and § 4030(p); and

4

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

5 DATED: July 19, 2005

Respectfully submitted,

6

LAW OFFICE OF MARK E. MERIN and

CASPER, MEADOWS, SCHWARTZ & COOK

7

8
9
10 A JURY TRIAL IS DEMANDED.
11
12
13

/s/ BY:
Mark E. Merin Attorney for Plaintiffs
Respectfully submitted,
LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK

14

15

BY:

16
S:\WpWork\Strip Search Cases\Barnett\Contra Costa\Pleadings\Complaint.First Amended.wpd
17

/s/
Mark E. Merin Attorney for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

Page 14 of 14 ROSALETY BARNETT, et al. v. COUNTY OF CONTRA COSTA, et al.
FIRST AMENDED CLASS ACTION COMPLAINT
F:\WPWORK\MCNULTY\PLEADING\COMPLAIN.DOC

USDC, Northern District, Case No. C 04-04437 TEH

 
 Case 3:04-cv-04437-TEH Document 39 Filed 09/09/2005 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
ROSALETY BARNETT, 7
Plaintiff(s), 8
v. 9
COUNTY OF CONTRA COSTA, 10

Case No. 04-04437 TEH (JCS)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION TO COMPEL DISCOVERY RESPONSES [Docket No. 21] AND DENYING PLAINTIFFS MOTION FOR SANCTIONS [Docket No. 23]

11

Defendant(s).

___________________________________/

12

13

On July 25, 2005, Plaintiffs filed a Motion to Compel Discovery Responses (the “Motion to

14 Compel”), and a Motion for Sanctions.

15

On September 2, 2005, the Motion to Compel and Motion for Sanctions came on for hearing.

16 Mark Merin, counsel for Plaintiffs, appeared. James V. Fitzgerald, counsel for Defendants, appeared.

17

For reasons stated on the record, and good cause shown,

18

IT IS HEREBY ORDERED that the Motion to Compel is GRANTED IN PART AND DENIED

19 IN PART. Within five (5) Court days of this Order, the parties shall meet-and-confer to develop a

20 reasonable plan to answer the questions sought in the interrogatories. If the parties cannot reach a solution,

21 within fifteen (15) Court days of this Order, Plaintiff shall take a 30(b)(6) deposition of the person most

22 knowledgeable of the record keeping by Defendants during the relevant time period for the relevant

23 facilities, including computerized and non-computerized record keeping. If the parties are unable to reach a

24 reasonable plan to answer the interrogatories, the parties shall submit a Joint Letter to the Court within

25 twenty (20) Court days of this Order. This Joint Letter shall include a description of every issue in dispute

26 and, with respect to each such issue, a detailed summary of each party’s final substantive position and their

27 final proposed compromise on each

28

United States District Court For the Northern District of California

Case 3:04-cv-04437-TEH Document 39 Filed 09/09/2005 Page 2 of 2

1 issue. Upon receipt of the Joint Letter, the Court will place the matter on calendar for hearing.

2

IT IS HEREBY FURTHER ORDERED that the Motion for Sanctions is DENIED.

3

IT IS SO ORDERED.

4

5 Dated: September 9, 2005

6

_______________________________

Joseph C. Spero

7

United States Magistrate Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

6

7 ROSALETY BARNETT, et al.,

8

Plaintiffs,

9

v.

10 COUNTY OF CONTRA COSTA, et al.,
11 Defendants.
12

NO. C04-4437 TEH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

United States District Court For the Northern District of California

13

14

This matter comes before the Court on Defendants’ motion for summary judgment on

15 all claims asserted by Plaintiff Adeline Chan. After carefully reviewing the parties’ written

16 arguments, the Court finds oral argument to be unnecessary and hereby VACATES the

17 hearing scheduled for September 21, 2009. For the reasons discussed below, the Court now

18 GRANTS IN PART and DENIES IN PART Defendants’ motion.

19

20 BACKGROUND

21

This case concerns Defendants’ now-discontinued policy of performing strip searches

22 and visual body cavity searches on all persons arrested and housed prior to arraignment.

23 Plaintiff Adeline Chan seeks to represent the following class:

24

All persons, since October 20, 2002, and continuing until

Defendants’ prior custom and policy was brought into

25

compliance with the law on June 1, 2003, or such other more

recent date when the policy was implemented, who were arrested

26

on any misdemeanor or lesser charge not involving weapons,

controlled substances, or violence, and who were subjected to a

27

uniform and indiscriminate (blanket) strip/visual body cavity

search(es) by defendants before arraignment at the Contra Costa

28

County Jails without any individualized reasonable suspicion that

United States District Court For the Northern District of California

1

they were concealing contraband. This class may also include

arrestees who were subjected to subsequent blanket strip searches

2

before arraignment after the initial strip search, without any

reasonable individualized suspicion that they had subsequently

3

acquired and hidden contraband on their persons.

4 Notice of Mot. for Class Cert. at 2.1 In conjunction with their opposition to Plaintiff’s

5 motion for class certification, Defendants filed a motion for summary judgment on all claims

6 asserted by Chan, the sole proposed named plaintiff. To promote judicial economy, this

7 Court stayed consideration of Plaintiff’s class certification motion pending resolution of

8 Defendants’ summary judgment motion.

9

Chan was arrested twice in 2003 for violating a restraining order that prohibited her

10 from being within 100 yards of her former employer, Shahzad Saghafi. On April 19, 2003,

11 Saghafi called the police after observing Chan near his home. The responding officer

12 interviewed both Chan and Saghafi, viewed the restraining order, and verified that the

13 restraining order had been served. He then arrested Chan for violating a court order under

14 California Penal Code section 166(a)(4) and transported her to the Martinez Detention

15 Facility (“MDF”).

16

As part of the intake process at MDF, Chan underwent a medical and mental health

17 history interview. In response to questions on the Contra Costa Detention Facilities Health

18 Questionnaire, Chan responded that she was not taking any prescription medication or using

19 street drugs. As to her mental health history, Chan stated that she tried to harm herself in

20 1997 and was a patient at a mental hospital in both 1997 and 2000, but that she did not

21 currently have problems with depression or mood swings, was not currently receiving

22 psychiatric treatment, and was not now thinking of harming herself. Chan explained at her

23 deposition that her two hospitalizations were three-day involuntary commitments by a doctor

24

25

1This class definition appears in both Plaintiff Chan’s notice of motion for class

certification and her proposed order. In the memorandum of points and authorities in support

26 of her motion, Chan proposes a class that includes individuals “who were arrested on any

misdemeanor or lesser charge not involving weapons, controlled substances, or felony

27 violence.” Mot. for Class Cert. at 7 (emphasis added). The inclusion of the word “felony”

appears to have been in error. See, e.g., Opp’n to Mot. for Summ. J. at 3 (citing to proposed

28 class definition in notice of motion, which refers to “violence” and not “felony violence”).

2

United States District Court For the Northern District of California

1 who was treating her for depression, but the record is unclear as to whether this more specific

2 information was revealed during Chan’s intake interview.

3

Following review by a registered nurse and a licensed social worker, Chan was

4 cleared for general population housing. After waiting at MDF for several hours, Chan was

5 eventually transported to the West County Detention Facility (“WCDF”). Upon arrival at

6 WCDF, Chan was strip searched by a female deputy in a private area. As Chan explained by

7 declaration:

8

I was taken into a room where I was required to remove all of my

9

clothes and, while standing naked in front of a female officer, was directed to perform various maneuvers including stretching

10

out my arms so that the officer could look under my arms, and lifting my legs so that she could examine the bottom of my feet.

11

She had me run my fingers through my hair and turn around so she could examine my back and rear end. I was then given jail

12

clothes into which I changed.

13 Chan Decl. in Supp. of Mot. for Class Cert. ¶ 2. Chan was released on bail two days after

14 her arrest.

15

On May 7, 2003, Chan was arrested a second time for violating the terms of a

16 restraining order against Saghafi. She was again found near Saghafi’s house, where she

17 claims she was dropping off court papers, and taken to MDF. While there, she was subjected

18 to another strip search by a female officer. She was held at MDF for two days before being

19 transferred to WCDF, from where she was released on bail on May 9, 2003. Chan was never

20 arraigned on either charge of violating a restraining order.

21

Chan asserts that the two strip searches to which she was subjected violated both her

22 federal constitutional right to be free from unreasonable searches and seizures and her state

23 constitutional right to privacy. She seeks to represent the proposed class on both of these

24 claims. In addition, she seeks to represent the proposed class on a claim based on violation

25 of California Penal Code section 4030, which was enacted “to protect the state and federal

26 constitutional rights of the people of California by establishing a statewide policy strictly

27 limiting strip and body cavity searches.” Cal. Penal Code § 4030(a). Defendants have

28 moved for summary judgment on all of Chan’s claims.

3

United States District Court For the Northern District of California

1 LEGAL STANDARD

2

Summary judgment is appropriate when there is no genuine dispute as to material

3 facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

4 Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby,

5 Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is

6 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The

7 court may not weigh the evidence and must view the evidence in the light most favorable to

8 the nonmoving party. Id. at 255.

9

A party seeking summary judgment bears the initial burden of informing the court of

10 the basis for its motion, and of identifying those portions of the pleadings and discovery

11 responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

12 Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at

13 trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than

14 for the moving party. Id. at 322-23. However, on an issue for which its opponent will have

15 the burden of proof at trial, the moving party can prevail merely by “pointing out to the

16 district court . . . that there is an absence of evidence to support the nonmoving party’s case.”

17 Id. at 325. If the moving party meets its initial burden, the opposing party must then “set out

18 specific facts showing a genuine issue for trial” to defeat the motion. Fed. R. Civ. P. 56(e);

19 Anderson, 477 U.S. at 250.

20

21 DISCUSSION

22

Chan does not dispute that Defendants are entitled to summary judgment on her state

23 law claims because she failed to present a timely claim to the County, as required by the

24 California Tort Claims Act. See Cal. Gov’t Code §§ 905, 911.2. Accordingly, Defendants’

25 motion is GRANTED as to those claims.

26

On Chan’s claim under 42 U.S.C. § 1983, Defendants contend that no constitutional

27 violation occurred because reasonable suspicion existed to strip search Chan. Under Ninth

28 Circuit precedent, “arrestees for minor offenses may be subjected to a strip search only if jail

4

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

2 contraband or suffering from a communicable disease.” Giles v. Ackerman, 746 F.2d 614,

3 615 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d

4 1037, 1040 n.1 (9th Cir. 1999) (en banc). “Reasonable suspicion may be based on such

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

6 arrest record.” Id. at 617.

7

The parties in this case dispute what information the officers performing the strip

8 search had at the time of the search, but the Court need not resolve those disputes here.2

9 Even assuming that the officers had knowledge of the grounds for the restraining order and

10 the information contained on her health questionnaire, it would be improper to resolve

United States District Court For the Northern District of California

11 Chan’s claims on summary judgment for the reasons discussed below.

12

First, it is not disputed that Chan’s arrests involved neither weapons nor contraband;

13 Defendants contend only that violation of a restraining order is, like grand theft auto,

14 “sufficiently associated with violence to justify a visual strip search.” Thompson v. City of

15 Los Angeles, 885 F.2d 1439, 1441 (9th Cir. 1989); but see id. at 1441 n.6 (“We emphasize,

16 however, that our decision is extremely narrow and only applies to theft of an automobile;

17 we express no opinion on the validity of a blanket strip search policy as applied to arrestees

18 charged with other crimes against property, whether they be classified as felonies or

19 misdemeanors.”). However, even Defendants’ recitation of the governing statute undermines

20 their theory. A restraining order requires that the petitioning party suffered “harassment,”

21 which is defined as “unlawful violence, a credible threat of violence, or a knowing and

22 willful course of conduct directed at a specific person that seriously alarms, annoys, or

23 harasses the person, and that serves no legitimate purpose.” Cal. Civ. Proc. Code

24 § 527.6(a)-(b) (emphasis added). Thus, it is possible for a party to obtain a restraining order

25 without demonstrating unlawful violence or a credible threat of violence, and the evidence

26 presented by Defendants fails to establish as an undisputed fact that the restraining order

27

28

2The Court therefore need not and does not resolve Defendants’ objections to Plaintiff’s expert declarations at this time.

5

United States District Court For the Northern District of California

1 against Chan was issued based on violence or credible threat thereof. Although Saghafi’s

2 petition for a restraining order claimed that Chan threatened to commit and did commit acts

3 of violence against him, the description of Chan’s conduct asserts that Chan made repeated

4 harassing phone calls, damaged work materials, was “aggressive,” made false accusations of

5 assault and rape, scratched Saghafi’s car, threw toilet paper over his car and the front of his

6 home, and broke into his mailbox and stole some of his mail. See Ex. B to You Decl. This

7 fails to establish, beyond dispute, that the restraining order was based on a credible threat of

8 violence or the actual commission of violence against Saghafi; it would not be unreasonable

9 to conclude that the restraining order was based instead on a pattern of harassing behavior.

10 Moreover, even if the underlying restraining order had been granted based on unlawful

11 violence or a credible threat thereof, a reasonable juror might conclude that the behavior for

12 which Chan was arrested – being near Saghafi’s home – involved neither violence nor the

13 threat of violence. Consequently, although violation of a restraining order might, in some

14 instances, be sufficiently associated with violence such that reasonable suspicion for a strip

15 search exists, Defendants have failed to meet their burden on this motion of convincing the

16 Court that Chan’s offense gave rise to reasonable suspicion as a matter of law.

17

Similarly, Defendants have failed to persuade the Court that Chan’s mental history

18 necessarily gave rise to reasonable suspicion to perform a strip search. Although Chan

19 admitted that she tried to harm herself six years prior to her arrest and was a patient in a

20 mental hospital on two occasions, three and six years prior to her arrest, she also stated that

21 she was taking no prescription medication at the time of her arrest, did not use street drugs,

22 had no current problems with depression, and had no current thoughts of harming herself.

23 Chan’s health questionnaire also indicates that she was not observed to be sweaty, shaking,

24 agitated, disoriented, or confused. In addition, Chan was held for several hours prior to the

25 strip search being performed – a fact that, when viewed in the light most favorable to Chan,

26 suggests that Defendants did not consider her a threat to herself or others. The Court cannot,

27 on these facts, find it undisputed that Defendants had reasonable suspicion to strip search

28 Chan based on her mental health history.

6

United States District Court For the Northern District of California

1

In short, even if the Court presumes that the officers conducting the strip search had

2 access to the underlying petition for the restraining order and Chan’s health questionnaire, it

3 remains disputed whether the officers had “reasonable suspicion that [Chan was] carrying or

4 concealing contraband.” Giles, 746 F.2d at 615. Accordingly, Defendants’ motion for

5 summary judgment on Chan’s § 1983 claim is DENIED.

6

7 CONCLUSION

8

For the reasons discussed above, the Court GRANTS IN PART and DENIES IN

9 PART Defendants’ motion for summary judgment. The motion is GRANTED as to Chan’s

10 state law claims and DENIED as to Chan’s claim under 42 U.S.C. § 1983.

11

Because Chan’s federal claim has survived summary judgment, her motion for class

12 certification remains viable. The parties shall meet and confer and file, no later than

13 September 18, 2009, a stipulation and proposed order, or a joint statement setting forth their

14 respective proposals, regarding a briefing and hearing schedule on the class certification

15 motion. Although Defendants have already filed their opposition to that motion, the Court

16 will entertain a request to file a revised opposition in light of the Court’s ruling on summary

17 judgment.

18

19 IT IS SO ORDERED.

20

21 Dated: 09/11/09 22

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

23

24

25

26

27

28

7

 
 Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page1 of 9

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5 ROSALETY BARNETT, et al.,

6

Plaintiffs,

7

v.

8 COUNTY OF CONTRA COSTA, et al.,
9 Defendants.
10

NO. C04-4437 TEH ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

11

12

This matter comes before the Court on Plaintiffs’ second motion for class

13 certification. After carefully considering the parties’ written arguments, the Court finds oral

14 argument to be unnecessary. With good cause appearing for the reasons discussed below, the

15 Court now GRANTS Plaintiffs’ motion.

16

17 BACKGROUND

18

Plaintiffs, who filed this case in 2004, contend that their constitutional rights were

19 violated by Defendant Contra Costa County’s now-discontinued policy of performing visual

20 body cavity searches and strip searches on all persons arrested and housed prior to

21 arraignment.1 Initial discovery revealed that Rosalety Barnett, the original named plaintiff,

22 was not searched pursuant to Defendants’ blanket policy concerning pre-arraignment

23 searches, and Plaintiffs subsequently sought and obtained leave from this Court to file an

24 amended complaint naming a new proposed class representative. In 2007, the Court granted

25 summary judgment as to claims by this second proposed named plaintiff, Peter Morganelli,

26 concluding that the original complaint included only individuals arrested for misdemeanors

27

1This Court has previously discussed the factual and procedural history of this case

28

and will not repeat that background in detail here. See, e.g., Jan. 24, 2007 Order at 2-4; Sept. 11, 2009 Order at 1-3,

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page2 of 9

United States District Court For the Northern District of California

1 while Morganelli was arrested for a felony, and that Morganelli’s individual claims were

2 time-barred. Jan. 24, 2007 Order at 4-9. At the same time, the Court denied without

3 prejudice Plaintiffs’ first motion for class certification because no proposed class

4 representative remained in the case. Id. at 10.

5

On November 27, 2007, Plaintiffs filed a second amended complaint naming Adeline

6 Chan as a proposed class representative. They filed their second motion for class

7 certification on July 6, 2009, with Chan as the sole proposed named plaintiff. Defendants

8 thereafter moved for summary judgment on Chan’s claims. The Court granted as unopposed

9 the motion for summary judgment on Chan’s state law claims but denied the motion as to

10 Chan’s claim under 42 U.S.C. § 1983. Sept. 11, 2009 Order at 5-7. The parties subsequently

11 agreed to a revised briefing schedule on Plaintiffs’ second motion for class certification.

12

In response to Defendants’ opposition to Plaintiffs’ originally proposed class

13 definition, Plaintiffs revised their proposed class definition on reply. Plaintiffs now seek to

14 certify the following class:

15

All persons, since October 20, 2002, and continuing until

Defendants’ prior custom and policy was brought into

16

compliance with the law on June 1, 2003, or such other more

recent date when the policy was implemented, who were arrested

17

on any misdemeanor or lesser charge not involving weapons,

controlled substances, or felony violence, and who were

18

subjected to a uniform and indiscriminate (blanket) strip/visual

body cavity search(es) by defendants before arraignment at the

19

Contra Costa County Jails without any individualized reasonable

suspicion that they were concealing contraband. This class may

20

also include arrestees who were subjected to subsequent blanket

strip searches before arraignment after the initial strip search,

21

without any reasonable individualized suspicion that they had

subsequently acquired and hidden contraband on their persons.

22

Also excluded from the class are those otherwise eligible

23

arrestees who (1) have a history of at least one prior conviction or

two prior arrests for excludable offenses within the last five

24

years; (2) have a current probation condition which includes

consent to search; (3) upon arrest or detention, exhibit behavior

25

or circumstances indicating they may be a danger to

himself/herself or others; [or] (4) are strip searched after

26

arraignment.

27 Ex. K to Merin Reply Decl.

28

2

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page3 of 9

United States District Court For the Northern District of California

1 DISCUSSION

2 I. Defendants’ Request for Stay

3

The Court first addresses Defendants’ request for a stay pending resolution of the en

4 banc proceedings in Bull v. City and County of San Francisco in the United States Court of

5 Appeals for the Ninth Circuit. Although the Court previously indicated that it was inclined

6 to grant such a stay, it now agrees with Plaintiffs that a stay is not warranted at this time.

7 Plaintiffs correctly observe that the issue before the en banc court in Bull – the

8 constitutionality of a blanket strip search policy in San Francisco – does not impact whether

9 certification of the proposed class in this case would be proper. The Court therefore chooses

10 not to exercise its discretion to stay the class certification decision pending the outcome in

11 Bull. However, the Court notes that Plaintiffs’ contentions concerning delay are not

12 persuasive; the delay in moving this case forward has been due primarily to Plaintiffs’

13 difficulties in locating a suitable class representative.

14

15 II. Plaintiffs’ Motion for Class Certification

16

Having denied Defendants’ request for a stay, the Court now turns to the merits of

17 Plaintiffs’ motion for class certification.

18

A. Legal Standard

19

A party seeking to certify a class must demonstrate that it has met all four

20 requirements of Rule 23(a) of the Federal Rules of Civil Procedure and at least one of the

21 requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th

22 Cir. 2001). Rule 23(a) allows a class to be certified only if:

23

(1) the class is so numerous that joinder of all members is

impracticable;

24

25

(2) there are questions of law or fact common to the class;

26

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

27

(4) the representative parties will fairly and adequately protect

28

the interests of the class.

3

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page4 of 9

United States District Court For the Northern District of California

1 Fed. R. Civ. P. 23(a); see also Zinser, 253 F.3d at 1186. That is, the class must satisfy the

2 requirements of numerosity, commonality, typicality, and adequacy.

3

Rule 23(b) provides for the maintenance of three types of class actions. Plaintiffs seek

4 to certify the class under Rule 23(b)(3), which allows a class to be certified if “the court finds

5 that the questions of law or fact common to class members predominate over any questions

6 affecting only individual members, and that a class action is superior to other available

7 methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

8 The factors a court should consider when evaluating these issues include the following:

9

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

10

11

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

12

(C) the desirability or undesirability of concentrating the

13

litigation of the claims in the particular forum; and

14

(D) the likely difficulties in managing a class action.

15 Id.

16

The party seeking certification must provide facts to satisfy the above requirements,

17 Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977), and the district court

18 must conduct a “rigorous analysis” of the moving party’s claims to examine whether the

19 requirements are satisfied, Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982).

20 Although the court is “at liberty” to consider evidence that relates to the merits if such

21 evidence also goes to the requirements of Rule 23, Hanon v. Dataproducts Corp., 976 F.2d

22 497, 508 (9th Cir. 1992), the court may not consider whether the party seeking class

23 certification has stated a cause of action or is likely to prevail on the merits, Eisen v. Carlisle

24 & Jacquelin, 417 U.S. 156, 178 (1974). If a district court concludes that the moving party

25 has met its burden of proof, then the court has broad discretion to certify the class. Zinser,

26 253 F.3d at 1186.

27

28

4

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page5 of 9

United States District Court For the Northern District of California

1

B. Analysis

2

In this case, Defendants do not dispute that the proposed class, class representative,

3 and class counsel satisfy the requirements of Rule 23(a). Their primary argument is that

4 certification under Rule 23(b)(3) would be improper because individual issues predominate

5 over common issues and a class action would therefore not be a superior mechanism for

6 adjudicating the controversies at issue.2

7

Some courts have denied class certification in similar cases for these reasons. For

8 example, plaintiffs in an Iowa case sought “certification of a class defined as all persons

9 arrested on a serious misdemeanor charge and strip searched pursuant to the defendant

10 county jail’s across-the-board strip search policy during a twenty-one month period prior to a

11 change in the policy.” Rattray v. Woodbury County, 253 F.R.D. 444, 447 (N.D. Iowa 2008).

12 The district judge concluded that certification of a Rule 23(b)(3) class was “not appropriate

13 because, in this court’s view, class questions do not predominate over individual questions,

14 and, for essentially that same reason, a class action is not superior to other methods of

15 adjudicating the controversy.” Id. at 465. Other district courts have reached similar

16 conclusions. E.g., Bledsoe v. Combs, Case No. NA 99-153-C H/G, 2000 WL 681094, at *5

17 (S.D. Ind. Mar. 14, 2000); Doe v. Connecticut, Case No. 3:00cv2036 (PCD) (D. Conn.),

18 Sept. 26, 2002 Order at 8-9 (Ex. 1 to Defs.’ App. of Unpublished Cases) (also noting that it

19 “is conceded that the [strip search] policy is not uniformly applied”); Doe v. City & County

20 of San Francisco, Case No. C04-4914 MJJ (N.D. Cal.), Nov. 29, 2006 Order at 5-7 (finding

21 that the proposed class was not ascertainable, and that the requirements Rule 23(a) were not

22 satisfied, in part because “membership [in the class] is contingent on the searches being

23 conducted without probable cause or reasonable suspicion” and “[t]o determine whether a

24 minor arrested during the proposed period qualifies for membership in [the] class, the Court

25 would have to engage in a case-by-case examination of the specific circumstances of the

26 minor’s arrest, and whether the Defendants had a valid basis to perform the search”).

27 2Defendants also argue that Plaintiffs’ original proposed class definition is overbroad.
28 The Court addresses this argument in more detail below.

5

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page6 of 9

United States District Court For the Northern District of California

1

However, as the Rattray court itself noted, its decision was “against the weight of

2 authority granting class certification in strip-search cases.” Rattray, 253 F.R.D. at 465.

3 Indeed, citing two federal appellate court decisions and twelve district court decisions, the

4 court observed that “other courts have uniformly certified Rule 23(b)(3) classes in strip-

5 search cases over objections like those that the County raises here.” Id. at 461-62. At least

6 three other decisions, two from this district, granting class certification in strip-search cases

7 have been brought to this Court’s attention: Tardiff v. Knox County, 365 F.3d 1 (1st Cir.

8 2004); Gallagher v. County of San Mateo, Case No. C04-0448 SBA (N.D. Cal.), Oct. 31,

9 2005 Order (Ex. B to Merin Decl.); Bull v. City & County of San Francisco, Case No.

10 C03-1840 CRB (N.D. Cal.), June 10, 2004 Mem. & Order (Ex. A to Merin Decl.).

11 Defendants’ contention that there is a “recent trend of federal courts rejecting certification

12 under Rule 23(b)(3),” Opp’n at 12-13, is simply incorrect. To the contrary, this Court finds

13 that the great weight of authority supports certifying Plaintiffs’ proposed class.

14

Plaintiffs here challenge the constitutionality of a blanket strip search policy that did

15 not require any evaluation of individualized reasonable suspicion. See, e.g., Pliler Dep. at

16 21:5-28:6 (Ex. D to Merin Decl.) (except for inmates falling within certain categories, such

17 as individuals who were being cite-released or those on two-day commitments, strip

18 searching was “part of the process to house people”); Ellison Dep. at 13:11-14:14 (Ex. E to

19 Merin Decl.) (under the policy at issue in this case, all individuals who were to be housed

20 pending arraignment were strip-searched). The legality of that policy, as well as whether

21 individualized reasonable suspicion is a defense to liability or a limitation on damages, are

22 common issues that predominate in this case.

23

The Court agrees with the district court in Bull, which explained that:

24

those that were subjected to searches based on individualized

reasonable suspicion are not included in the class. The issue of

25

whether a post hoc determination of reasonable suspicion is

sufficient to avoid a constitutional violation will not be addressed

26

at this time. Nonetheless, even if there is a post hoc

determination of reasonable suspicion, that does not mean that an

27

individual was not searched pursuant to a blanket visual body

cavity strip search, the constitutionality of which will be

28

determined in this litigation.

6

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page7 of 9

United States District Court For the Northern District of California

1 Bull, June 10, 2004 Mem. & Order at 11. As in Bull, “defendants acknowledge that there

2 was a . . . policy in place regarding strip searches, and it is this policy that plaintiffs

3 challenge. Thus, it is a fair guess that most arrestees were searched on that basis. . . . [A]ny

4 potential individualized issues can be addressed later in the litigation and do not defeat class

5 certification.” Id. Moreover, some issues that Defendants contend are individualized issues

6 – for example, “what crimes constitute an excludable crime involving violence, weapons, or

7 drugs” and “whether persons arrested on out of county warrants or for probation violations

8 [fall] outside the class,” Opp’n at 16 – appear to be issues that can and should be resolved on

9 a class-wide basis. See id. at 11-12 (noting that “numerous questions” remained to be

10 resolved, but explaining that “whatever is decided on those issues [] would seemingly affect

11 all class members”); Merin Reply Decl. ¶ 7 (discussing post-certification resolution of issues

12 on a class-wide basis in Moyle v. County of Contra Costa). The Court is also convinced that

13 membership in the class can, in the vast majority of cases, be easily ascertained by reference

14 to computerized records and file notations. While individualized inquiries may be necessary

15 in some cases, these inquiries appear neither to predominate nor to be unmanageable.

16 Accordingly, this Court concludes that common issues predominate over individualized

17 issues, and that a class action – at least at the liability stage of the proceedings – would be

18 manageable and superior to individual actions.

19

Finally, Defendants argue that Plaintiffs’ original proposed class definition is

20 overbroad. Plaintiffs agree with the majority of Defendants’ arguments and suitably

21 amended their proposed class definition on reply. Plaintiffs did not agree to exclude one

22 category of individuals that Defendants asserted must be excluded – individuals with “arrests

23 in connection with out-of-county arrest warrants or transfers to Contra Costa County Jail

24 from other Counties’ detention centers,” Opp’n at 21 – and this Court agrees that no such

25 exclusion is warranted at this time. Although this category was excluded from a class

26 certified in another strip search case, the plaintiffs in that case agreed that the exception was

27 “generally reasonable.” Moyle v. County of Contra Costa, Case No. C05-2324, 2007 WL

28 4287315, at *22 n.13 (N.D. Cal. Dec. 5, 2007). Defendants have not persuaded the Court

7

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page8 of 9

United States District Court For the Northern District of California

1 that, absent such agreement, this exclusion is required. However, this is not a definitive

2 ruling on the propriety of including such individuals in the class; instead, the Court finds

3 only that this is a disputed issue that, as noted above, can and should be resolved on a class-

4 wide basis.

5

6 CONCLUSION

7

In light of all of the above, the Court finds class certification to be appropriate and

8 hereby GRANTS Plaintiffs’ second motion for class certification. Defendants do not dispute

9 that the requirements of Federal Rule of Civil Procedure 23(a) are satisfied, and the Court

10 rejects Defendants’ objections to the suitability of certification under Rule 23(b)(3).

11 Pursuant to Plaintiffs’ revised proposed class definition, the following class is hereby

12 certified:

13

All persons, since October 20, 2002, and continuing until

Defendants’ prior custom and policy was brought into

14

compliance with the law on June 1, 2003, or such other more

recent date when the policy was implemented, who were arrested

15

on any misdemeanor or lesser charge not involving weapons,

controlled substances, or felony violence, and who were

16

subjected to a uniform and indiscriminate (blanket) strip/visual

body cavity search(es) by defendants before arraignment at the

17

Contra Costa County Jails without any individualized reasonable

suspicion that they were concealing contraband. This class may

18

also include arrestees who were subjected to subsequent blanket

strip searches before arraignment after the initial strip search,

19

without any reasonable individualized suspicion that they had

subsequently acquired and hidden contraband on their persons.

20

Also excluded from the class are those otherwise eligible

21

arrestees who (1) have a history of at least one prior conviction or

two prior arrests for excludable offenses within the last five

22

years; (2) have a current probation condition which includes

consent to search; (3) upon arrest or detention, exhibit behavior

23

or circumstances indicating they may be a danger to

himself/herself or others; [or] (4) are strip searched after

24

arraignment.

25 In addition, the Court has considered the criteria listed under Rule 23(g) and hereby appoints

26 the Law Offices of Mark E. Merin and Casper, Meadows, Schwartz & Cook as class counsel.

27 Because the Court has certified a class under Rule 23(b)(3), it must also “direct to class

28 members the best notice that is practicable under the circumstances, including individual

8

Case3:04-cv-04437-TEH Document172 Filed11/03/09 Page9 of 9

United States District Court For the Northern District of California

1 notice to all members who can be identified through reasonable effort,” and such notice must 2 include all of the information required by Rule 23(c)(2)(B). The parties shall meet and 3 confer and file, on or before November 23, 2009, either a jointly proposed class notice or a

4 joint statement setting forth the parties’ disputes over an appropriate class notice.

5

The parties shall also appear for a further case management conference on

6 February 8, 2010. They shall meet and confer and file a joint case management statement

7 on or before February 1, 2010.

8

9 IT IS SO ORDERED.

10

11 Dated: 11/02/09 12 13 14 15 16 17 18

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

19 20 21 22 23 24 25

26

27 28

9

 
 Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page1 of 12

1 Mark E. Merin (SBN 043849) – mark@markmerin.com

Cathleen A. Williams (SBN 068029) – cathleen@markmerin.com

2 W. Gordon Kaupp (SBN 226141) – gordon@markmerin.com

LAW OFFICES OF MARK E. MERIN

3 2001 P Street, Suite 100

Sacramento, California 95814

4 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

5

Andrew C. Schwartz (SBN 64578) – schwartz@csmlaw.com

6 CASPER, MEADOWS, SCHWARTZ & COOK 2121 North California Blvd., Suite 1020

7

Walnut Creek, CA 94596 Telephone: (925) 947-1147

8 Facsimile: (925) 947-1131

9 Attorneys for Plaintiffs

10

Co0oC

UNITED STATES DISTRICT COURT 11

NORTHERN DISTRICT OF CALIFORNIA 12
Co0oC
13

14

ROSALETY BARNETT, VANESSA HUNT, and CASE NO: C 04-04437 TEH all others similarly situated,

15

Plaintiffs,

THIRD AMENDED CLASS ACTION COMPLAINT

16 vs.

DEMAND FOR JURY TRIAL

17 COUNTY OF CONTRA COSTA, CONTRA

COSTA COUNTY SHERIFF=S DEPARTMENT,

18 CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, Individually and in His

19

Official Capacity, CONTRA COSTA COUNTY SHERIFF=S DEPUTIES DOES 1 THROUGH

20

100, and ROES 1 THROUGH 20, INCLUSIVE,

21

Defendants.

22 PLAINTIFFS ALLEGE:

23

INTRODUCTION

24

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

25 COUNTY OF CONTRA COSTA, CONTRA COSTA COUNTY SHERIFF=S DEPARTMENT,

26 CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, Individually and in His Official Capacity,

27 CONTRA COSTA COUNTY SHERIFF=S DEPUTIES sued under their fictitious names as DOES 1

28 THROUGH 100, and ROES 1 THROUGH 20, for violations of plaintiff=s constitutional rights resulting

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

1

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page2 of 12

1 from application of CONTRA COSTA County=s and the Sheriff=s policies, practices, and customs

2 concerning the use of strip searches and visual body cavity searches in CONTRA COSTA County Jails.

3 Plaintiffs seek an order declaring illegal defendants= policy of subjecting female detainees in their

4 custody who are members of the previously certified Class to a second, successive strip and visual body

5 cavity searches before they are housed and without having any rational penological purpose for such strip

6 searches. Defendants= strip search and visual body cavity search policies, practices, and customs violate

7 those rights of such plaintiffs, and all those they represent, that are secured by the Fourth and Fourteenth

8 Amendments to the United States Constitution and entitle plaintiffs, and all those similarly situated, to

9 recover damages under the Federal Civil Rights Act (42 U.S.C. ' 1983).

10

JURISDICTION

11

This action is brought pursuant to 42 USC '' 1983 and 1988, and the Fourth and Fourteenth

12 Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC '' 1331 and

13 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

14

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

15

PARTIES

16

1. Plaintiff VANESSA HUNT and all those similarly situated, are, and at all material times

17 herein, were citizens of the United States and residents of the state of California who were arrested

18 within the period beginning two (2) years before the filing of the Complaint in this action, and continuing

19 to this date, and who were subjected to second, successive strip and/or visual body cavity searches at a

20 CONTRA COSTA County Jail (hereinafter referred to as the ACONTRA COSTA County Jail@), prior to

21 being housed without the defendants having a rational penological purpose for such second successive

22 strip searches.

23

2. Defendants coerced, forced, and compelled plaintiff ROSALETY BARNETT to give a

24 urine sample without legal justification for requiring same. Moreover, defendants coerced, forced, and

25 compelled plaintiff ROSALETY BARNETT to give a urine sample in an area of the CONTRA COSTA

26 County Jail that was not sufficiently private so as to prevent persons not participating in the collection of

27 the sample from observing the collection. Furthermore, defendants required plaintiff to provide the urine

28 sample while being directly observed by defendants= male and female officers.

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

2

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page3 of 12

1

3. Defendant CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF is, and at all

2 material times referred to herein, was the duly elected Sheriff of the COUNTY OF CONTRA COSTA,

3 responsible for administering the Jail facilities and for making, overseeing, and implementing the

4 policies, practices, and customs challenged herein relating to the operation of the CONTRA COSTA

5 County Jail. He is sued in his individual and official capacities.

6

4. Defendants CONTRA COSTA COUNTY SHERIFF DEPUTIES sued herein by their

7 fictitious names (Does 1 through 100) are all deputies who, as part of their duties at the CONTRA

8 COSTA County Jail, subjected plaintiffs, and all those they represent, to second pre-housing strip and/or

9 visual body cavity searches without there being any rational penological purpose for such strip searches.

10 Furthermore, Defendants CONTRA COSTA COUNTY SHERIFF DEPUTIES sued herein by their

11 fictitious names (Does 1 through 5) are all deputies who, as part of their duties at the CONTRA COSTA

12 County Jail, coerced, forced, and compelled plaintiff ROSALETY BARNETT to give a urine sample in a

13 non-private setting and without proper justification.

14

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

15 of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of the state of

16 California, the COUNTY OF CONTRA COSTA and/or the CONTRA COSTA COUNTY SHERIFF=S

17 DEPARTMENT.

18

6. Defendants whose names are not now known and who are sued by the fictitious names of

19 ROES 1 through 20, are all agents and/or employees of one or another of the other named defendants

20 who ordered, condoned, authorized, covered up, or were otherwise associated with the implementation of

21 the illegal policy and practices relating to strip searches complained of herein.

22

7. Defendant COUNTY OF CONTRA COSTA is, and at all material times referred to

23 herein, was a division of the state of California, that maintained or permitted an official policy or custom

24 or practice causing or permitting the occurrence of the types of wrongs complained of herein, which

25 wrongs damaged plaintiffs, and all those similarly situated, as herein alleged. Plaintiffs= allegations

26 against the COUNTY are based on acts and omissions of the SHERIFF and his DEPUTIES and on acts

27 and omissions of persons who are COUNTY employees, and on the COUNTY=s breach of its duty to

28 protect plaintiffs, and all those they represent, from the wrongful conduct of said persons and employees.

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

3

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page4 of 12

1

8. Defendants CONTRA COSTA COUNTY SHERIFF=S DEPARTMENT and CONTRA

2 COSTA COUNTY SHERIFF WARREN E. RUPF, in his Individual and Official Capacity, also

3 maintained or permitted an official policy or custom of causing or permitting the occurrence of the types

4 of wrongs complained of herein, which wrongs damaged plaintiffs, and all those similarly situated, as

5 herein alleged.

6

9. Class action plaintiffs are those similarly situated to Plaintiff Vanessa Hunt who, during

7 the period beginning two (2) years before the filing of this Complaint, and continuing to this date, were

8 subjected by defendants to a second, successive pre- housing strip and/or visual body cavity searches

9 after being booked without defendants having a rational penological purpose for such strip search.

10

FACTS

11

10. On or about March 1, 2004, plaintiff ROSALETY BARNETT (hereinafter referred to as

12 Aplaintiff@) was falsely arrested for allegedly resisting arrest. Plaintiff was taken to the CONTRA

13 COSTA County Jail in Martinez, California, where she was coerced, forced, and compelled to produce a

14 urine sample while being directly observed by male deputies (DOES 1 and 5).

15

11. On or about May 16, 2003, Plaintiff Vanessa Hunt was taken into custody following a

16 arrest in CONTRA COSTA COUNTY for an unknown violation of law (reportedly misdemeanor

17 vandalism) after she was removed from her mother’s house by the Kensington Police. She was strip

18 searched at the Martinez Detention Facility after she could not post bail and was scheduled to be housed.

19 She was then transferred to the West County Detention Facility and strip searched again before being

20 placed in housing. She was handcuffed at the Martinez Detention Facility after being strip searched,

21 handcuffed and chained during transport, and remained in handcuffs upon arrival at West County

22 Detention Facility until she was subjected to the second strip search. She was segregated in a small group

23 of female inmates who were also transported from the Martinez Detention Facility to the West County

24 Detention Facility, and never intermingled with other inmates who had not also been strip searched and

25 handcuffed. She was released after about a week and was never arraigned on any charges or required to

26 appear in court.

27

12. In each of the two instances when plaintiff Hunt was strip searched by defendants at

28 Contra Costa County jails, she was stripped naked and required to lift her arms then her feet so the

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

4

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page5 of 12

1 bottom of her soles could be examined, and then required to bend over to expose her rectal and genital

2 areas for inspection.

3

13. Plaintiffs are informed and believe, and thereupon allege, that defendants routinely

4 followed their policy, practice, and custom of subjecting female detainees, including plaintiff Hunt, and

5 all those she represents, to second, successive strip and visual body cavity searches without having, a

6 rational penological purpose for such second strip search.

7

14. Plaintiffs are informed and believe, and thereupon allege, that defendants have the ability

8 to identify all such similarly situated female plaintiffs, specifically those who, while in defendants=

9 custody, at the CONTRA COSTA County Jail within two (2) years prior to the filing of the Complaint in

10 this action, were subjected to such second strip searches and/or visual body cavity searches prior to

11 housing without defendants having a rational penological purpose for such second, successive strip

12 search.

13

15. Defendant CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF is personally

14 responsible for the promulgation and continuation of the strip search policy, practice, and custom

15 pursuant to which plaintiffs, and those they represent, were subjected.

16

16. As a result of being subjected to the second strip search complained of herein, plaintiff

17 Hunt, and each of the persons similarly situated, suffered physical, mental, and emotional distress,

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

19 rights, and are entitled to recover damages according to proof but, at a minimum, $4,000 each as

20 specified in California Civil Code ' 52 and ' 52.1(b).

21

17. As a result of being unjustifiably coerced, forced, and compelled to provide a urine

22 sample and to do so while being directly observed by male deputies of the CONTRA COSTA County

23 Jail as complained of herein, plaintiff BARNETT suffered physical, mental, and emotional distress and

24 violation of due process of law and state and federal statutory and constitutional rights, and is entitled to

25 recover damages according to proof, but a minimum of $4,000 as specified in California Civil Code ' 52

26 and ' 52.1(b).

27 \\\

28 \\\

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

5

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page6 of 12

1

CLASS CLAIMS

2

18. The second, successive strip and visual body cavity search to which plaintiff Hunt, and all

3 those similarly situated, were subjected were performed pursuant to policies, practices, and customs of

4 defendants CONTRA COSTA COUNTY SHERIFF WARREN E. RUPF, CONTRA COSTA COUNTY

5 SHERIFF=S DEPARTMENT, COUNTY OF CONTRA COSTA, the individual SHERIFF=S DEPUTIES

6 sued herein by the fictitious names 1 through 100, and the individuals whose names are not now known

7 and who are sued by the fictitious names of ROES 1 through 20. The searches complained of herein

8 were performed without regard to the nature of the alleged offense for which plaintiffs, and all those

9 similarly situated, had been arrested, without regard to whether or not plaintiffs, or those they represent,

10 were eligible for cite and release under Penal Code ' 853.6, without regard to whether or not plaintiffs,

11 and each of those similarly situated, were eligible for and/or were released on his or her own

12 recognizance. Furthermore, the second strip searches complained of herein were performed without

13 defendants having a rational penological purpose.

14

19. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

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

16

20. The class is defined to include all female arrestees who were members of the class

17 previously certified in this action, and who, in the period from and including two (2) years prior to the

18 filing of the original Complaint on October 20, 2002, and continuing until June 1, 2003, were arrested

19 and subjected to a second, successive strip and/or visual body cavity search prior to being housed at the

20 CONTRA COSTA County Jail without defendants having a valid penological purpose for such second

21 strip search.

22

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

23 are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact number of

24 class members, but are informed and believe there are at least forty seven females who were subjected to

25 a second strip search as a matter of routine policy.

26

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

27 and believe, and thereupon allege, that there are many questions of fact common to the class including,

28 but not limited to: (1) whether defendants routinely subject all females arrested to visual body cavity

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

6

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page7 of 12

1 searches for a second time prior to housing in the CONTRA COSTA County Jail; (2) whether the visual

2 body cavity searches are conducted in an area of privacy so that the searches cannot be observed by

3 persons not participating in the searches; and, (3) whether the visual body cavity searches are reasonably

4 related to defendants= penological interest to maintain the security of the jail and whether or not there are

5 less intrusive methods for protecting any such interest.

6

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

7 and believe, and thereupon allege, that there are many questions of law common to the class including,

8 but are not limited to: (1) whether defendants may perform second, successive visual body cavity

9 searches on persons prior to housing under the conditions of this case, where female inmates are kept

10 handcuffed after the first strip search and not mingled with the general population; (2) whether

11 defendants may perform visual body cavity searches on persons without first reasonably relating the use

12 of the visual body cavity search to defendants= penological interest to maintain the security of the jail and

13 determining if there is a less intrusive method to protect that interest; (3) whether visual body cavity

14 searches may be conducted in areas where the search can be observed by people not participating in the

15 search without violating plaintiffs= State and Federal constitutional rights (4) whether or not defendants=

16 strip search policy and procedure is in accordance with the Federal Constitution.

17

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

18 representative plaintiff Hunt are typical of the class. Plaintiffs were searched, prior to housing, for a

19 second time without a rational penological purpose. Representative plaintiff Hunt has the same interests

20 and suffered the same type of injuries as all of the class members. Plaintiff’s= claims arose because of

21 defendants= policy, practice, and custom of subjecting arrestees to successive pre-housing strip and/or

22 visual body cavity searches without having a rational penological purpose for such searches. Each class

23 member suffered actual damages as a result of being subjected to a second pre-housing strip and/or visual

24 body cavity search. The actual damages suffered by the representative plaintiffs are similar in type and

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

26

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

27 plaintiff will fairly and adequately protect the class interests. Plaintiff’s= interests are consistent with and

28 not antagonistic to the interests of the class.

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

7

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page8 of 12

1

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

2 separate actions by individual members of the class would create a risk that inconsistent or varying

3 adjudications with respect to individual members of the class would establish incompatible standards of

4 conduct for the parties opposing the complaint.

5

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

6 separate actions by individual members of the class would create a risk of inconsistent adjudications with

7 respect to individual members of the class which would, as a practical matter, substantially impair or

8 impede the interests of the other members of the class to protect their interests.

9

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

10 informed and believe, and thereupon allege, that defendants have acted on grounds generally applicable

11 to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class

12 as a whole.

13

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

14 superior to other available methods for the fair and equitable adjudication of the controversy between the

15 parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the

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

17 would be unable individually to prosecute any action at all. Plaintiffs also are informed and believe, and

18 thereupon allege, that the amounts at stake for individuals are so small that separate suits would be

19 impracticable. Plaintiffs are informed and believe, and thereupon allege, that most members of the class

20 will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon

21 allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the

22 same location; i.e., the CONTRA COSTA County Jail. It will promote judicial efficiency to resolve the

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

24

30. Plaintiffs do not know the identities of all of the class members, although, through

25 discovery, Plaintiffs have determined that at least 47 females were subject to the second pre-housing strip

26 search during the applicable period. Plaintiffs are informed and believe, and thereupon allege, that the

27 identities of the class members may be ascertained from records maintained by the COUNTY OF

28 CONTRA COSTA and defendant SHERIFF WARREN E. RUPF and defendant CONTRA COSTA

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

8

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page9 of 12

1 COUNTY SHERIFF=S DEPARTMENT. Plaintiffs are informed and believe, and thereupon allege, that

2 defendants= records reflect the identities, including addresses and telephone numbers, of the persons who

3 have been held in custody in the CONTRA COSTA County Jails. Plaintiffs are informed and believe,

4 and thereupon allege, that records of, and maintained by defendants reflect who was subject to a second

5 pre-housing strip and/or visual body cavity search, when the search occurred, where the search occurred,

6 and the charges on which such persons were arrested. Plaintiffs are informed and believe, and thereupon

7 allege, that all of the foregoing information is contained in defendants= computer system and that the

8 information necessary to identify the class members, by last known addresses, and the dates and reasons

9 for their arrests and/or release from custody, is readily available from said computer system.

10

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

11 be furnished with the best notice practicable under the circumstances, including individual notice to all

12 members who can be identified through reasonable effort. Plaintiffs are informed and believe, and

13 thereupon allege, that defendants= computer records contain a last known address for class members.

14 Plaintiffs contemplate that individual notice will be given to class members at such last known address

15 by first class mail. Plaintiffs contemplate that the notice will inform class members of the following:

16

i. The pendency of the class action and the issues common to the class;

17

ii. The nature of the action;

18

iii. Their right to Aopt out@ of the action within a given time, in which event they will

19

not be bound by a decision rendered in the class action;

20

iv. Their right, if they do not Aopt out,@ to be represented by their own counsel and

21

to enter an appearan ce in the c ase; otherwise they will be represented by the

22

named class plaintiff(s) and the named class plaintiff(s)=s counsel; and

23

v. Their right, if they do not Aopt out,@ to share in any recovery in favor of the class,

24

and conversely to be bound by any judgment on the comm on issues adverse to

25

the class.

26 \\\ 27 \\\ 28 \\\

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

9

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page10 of 12

1

COUNT ONE

2

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution on behalf of Plaintiffs and all persons similarly situated)

3

32. Defendants= policies, practices, and customs regarding the strip and visual body cavity

4 searches complained of herein violated plaintiffs=, and all those similarly situated=s, rights under the

5 Fourth Amendment to be free from unreasonable searches and seizures, violated plaintiffs=, and all those

6 similarly situated=s, rights to due process and privacy under the Fourteenth Amendment, and directly and

7 proximately damaged plaintiffs, and all those similarly situated, as herein alleged, entitling plaintiffs, and

8 all class members, to recover damages for said constitutional violations pursuant to 42 U.S.C. ' 1983.

9 WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly situated, as

10 hereunder appears.

11

COUNT TWO 12
(Invasion of Privacy, on behalf of BARNETT only)

13

33. By unjustifiably coercing, forcing, and compelling plaintiff BARNETT to provide a urine

14 sample while being observed by male deputies defendants, and each of them, violated plaintiff=s right to

15 privacy as secured by the Federal Constitution under the Fourteenth Amendment, and directly and

16 proximately damaged plaintiff by causing her emotional distress, humiliation, and embarrassment.

17

WHEREFORE, plaintiff prays for relief for herself as hereunder appears. 18

19

PRAYER FOR RELIEF

WHEREFORE, plaintiffs, on behalf of themselves and all those similarly situated, seek judgment 20

as follows: 21

22

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

23 permanently, defendants= policies, practices, and customs of subjecting detainees to strip and visual body

24 cavity searches without having a rational penological purpose for such second pre-housing searches;

25

2. Certification as a class action of plaintiffs= complaints concerning defendants= policies,

26 practice, and customs of subjecting detainees to a second pre-housing strip and visual body cavity

27 searches without having a rational penological purpose for such searches;

28 \\\

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

10

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page11 of 12

1

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

2 member of the class of plaintiffs, as against all defendants;

3

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

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

5

5. In addition to compensatory and statutory damages as allowed by law, at least $4,000 for

6 each plaintiff pursuant to California Civil Code ' 52.1 and ' 52, for each violation thereof;

7

6. Attorneys= fees and costs under 42 U.S.C. ' 1988, California Civil Code ' 52(b)(3),

8 California Civil Code ' 52.1(h);

9

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

10 DATED: June 21, 2010 11
12

Respectfully submitted, LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK

13

/s/ - “Mark E. Merin”

BY:

14

Mark E. Merin

Attorney for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

11

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

Case3:04-cv-04437-TEH Document202 Filed06/21/10 Page12 of 12

1

A JURY TRIAL IS DEMANDED.

2 DATED: June 21, 2010 3
4

Respectfully submitted, LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK

5

/s/ - “Mark E. Merin”

BY:

6

Mark E. Merin

Attorney for Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BARNETT, ET AL. V. CONTRA COSTA COUNTY, ET AL.; CASE NO. C 04-4437 THE

12

THIRD AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL

 
 1 Mark E. Merin (SBN 043849) – mark@markmerin.com Cathleen A. Williams (SBN 068029) – cathleen@markmerin.com
2 W. Gordon Kaupp (SBN 226141) – gordon@markmerin.com
LAW OFFICES OF MARK E. MERIN 3 2001 P Street, Suite 100
Sacramento, California 95814 4 Telephone: (916) 443-6911
Facsimile: (916) 447-8336 5
Andrew C. Schwartz (SBN 64578) – schwartz@csmlaw.com 6 CASPER, MEADOWS, SCHWARTZ & COOK
2121 North California Blvd., Suite 1020 7 Walnut Creek, CA 94596
Telephone: (925) 947-1147 8 Facsimile: (925) 947-1131

9 Attorneys for Plaintiffs

Peter Obstler (SBN 171623) - peter.obstler@bingham.com 10 Jee Young You (SBN 241658) - jeeyoung.you@bingham.com

BINGHAM MCCUTCHEN LLP 11 Three Embarcadero Center

San Francisco, CA 94111-4067, U.S.A.

12 Telephone: (415) 393-2000

Facsimile: (415) 393-2286

13

James V. Fitzgerald, III (SBN 055632) -james.fitzgerald@mcnamaralaw.com

14 MCNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER & BORGES LLP

15

1211 Newell Ave. Post Office Box 5288

16

Walnut Creek, CA 94596 Telephone: (925) 939-5330

17 Facsimile: (925) 939-0203

Attorneys for Defendants 18
Co0oC 19
UNITED STATES DISTRICT COURT 20
NORTHERN DISTRICT OF CALIFORNIA
21 Co0oC

22

ROSALETY BARNETT, VANESSA HUNT, and CASE NO: C 04-04437 TEH

23 all others similarly situated,

[PROPOSED] ORDER GRANTING

24

Plaintiffs,

SETTLEMENT AND DISMISSAL OF

25 vs.

ACTION

26 COUNTY OF CONTRA COSTA, et al.,

27

Defendants.

28
1 [PROPOSED] ORDER GRANTING SETTLEMENT AND DISMISSAL OF ACTION Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

1

GOOD CAUSE APPEARING from the joint motion of the parties for approval of the settlement,

2 this Court hereby approves the Settlement. No notice must be given to any group of persons of this

3 settlement.

4

Based on the written materials on file and good cause appearing therefore:

5

a. The Settlement is approved;

6

b. The Complaint is dismissed; and

7

c. The claims of Plaintiff Vanessa Hunt are dismissed with prejudice.

8

IT IS SO ORDERED.

9 DATED: 03/18/2011

TATES DISTRICT C

HONORABLE THELTON E. HENDERSON

10

UNITED STATES DISTRICT JUDGE

UNITED S
ALIFORNIA

OURT NORTH

11

12

Judge Thelton E. Henderson

13

14

ERN DISTRICT OF C

15

16

17

18

19

20

21

22

23

24

25

26

27

28
2 [PROPOSED] ORDER GRANTING SETTLEMENT AND DISMISSAL OF ACTION Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

 
 Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page1 of 6

1 Mark E. Merin (SBN 043849) – mark@markmerin.com

Cathleen A. Williams (SBN 068029) – cathleen@markmerin.com

2 W. Gordon Kaupp (SBN 226141) – gordon@markmerin.com

LAW OFFICES OF MARK E. MERIN

3 2001 P Street, Suite 100

Sacramento, California 95814

4 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

5

Andrew C. Schwartz (SBN 64578) – schwartz@csmlaw.com

6 CASPER, MEADOWS, SCHWARTZ & COOK 2121 North California Blvd., Suite 1020

7

Walnut Creek, CA 94596 Telephone: (925) 947-1147

8 Facsimile: (925) 947-1131

9 Attorneys for Plaintiffs

10

Peter Obstler (SBN 171623) - peter.obstler@bingham.com Jee Young You (SBN 241658) - jeeyoung.you@bingham.com

BINGHAM MCCUTCHEN LLP 11 Three Embarcadero Center

San Francisco, CA 94111-4067, U.S.A.

12 Telephone: (415) 393-2000

Facsimile: (415) 393-2286

13

James V. Fitzgerald, III (SBN 055632) -james.fitzgerald@mcnamaralaw.com

14 MCNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER & BORGES LLP

15

1211 Newell Ave. Post Office Box 5288

16

Walnut Creek, CA 94596 Telephone: (925) 939-5330

17 Facsimile: (925) 939-0203

18 Attorneys for Defendants

Co0oC 19
UNITED STATES DISTRICT COURT 20
NORTHERN DISTRICT OF CALIFORNIA 21
Co0oC

22

ROSALETY BARNETT, VANESSA HUNT, and CASE NO: C 04-04437 TEH 23 all others similarly situated,

JOINT APPLICATION FOR APPROVAL

24

Plaintiffs,

OF SETTLEMENT AND DISMISSAL OF

25 vs.

COMPLAINT

26 COUNTY OF CONTRA COSTA, et al.,

27

Defendants.

28
1 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page2 of 6

1

Plaintiff Vanessa Hunt (“Plaintiff”) and Defendants County of Contra Costa, Contra Costa

2 County Sheriff's Department and Contra Costa County Sheriff Warren Rupf (“Defendants”) (collectively,

3 the “Parties”), respectfully submit this Joint Application for the approval of the settlement reached

4 between the Parties, and to dismiss the Plaintiff’s case on behalf of herself and those similarly situated in

5 its entirety. Defendants join in this application in direct reliance on the Representations and Warranties

6 set forth by Plaintiff and her counsel in the Settlement Agreement, the Declaration of Mark Merin, Esq.

7 submitted herewith, and pursuant to Defendants’ obligations to cooperate in good faith with Plaintiff and

8 her counsel under Section 4(C) of the Settlement Agreement.

9 I. BACKGROUND

10

This case was originally filed on October 20, 2004, by Rosalety Barnett on behalf of herself and

11 an alleged putative class of persons similarly situated who were strip searched at Contra Costa jail

12 facilities after being arrested on crimes not involving violence, drugs, or weapons. When it was

13 determined that Ms. Barnett was strip searched after the defendant county changed its policies, Ms.

14 Barnett was replaced as class proposed class representative by Peter Morganelli. Since Mr. Morganelli

15 was arrested for a felony and the Court ruled that the complaint did not include felony offenses, Mr.

16 Morganelli was replaced by Adeline Chan as proposed class representative, and the class certified to

17 include all persons who were arrested on misdemeanor or lesser charges not involving weapons,

18 controlled substances or felony violence and who were subjected to blanket strip searches, before

19 arraignment at the Contra Costa County jail without reasonable suspicion between October 20, 2002, and

20 June 1, 2003. The class also included all arrestees “subjected to subsequent blanket strip searches before

21 arraignment after the initial strip search, without any reasonable individual suspicion that they had

22 subsequently acquired and hidden contraband on their persons.”

23

On February 9, 2010, the Ninth Circuit Court of Appeal in Bull v. San Francisco, 595 F.3d 964

24 (9th Cir. 2010), modified the law on which this Court had relied to certify the class herein and to deny

25 the Defendants’ motion for summary judgment, and upheld the blanket strip search of persons classified

26 for housing as related to legitimate jail safety measures. As a result of that Ninth Circuit ruling, the

27 Court entered a Stipulated Order dismissing all of Chan’s claim and most of the Misdemeanor Class’

28 federal Fourth Amendment claims, exempting from dismissal the claims of women misdemeanor
2 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page3 of 6

1 arrestees who alleged that they were subjected to additional or “secondary” visual body searches during

2 their transfer from Contra Costa Martinez Detention Facility to Contra Costa West County Detention

3 Facility.

4

Plaintiffs filed their Third Amended Complaint and substituted Vanessa Hunt as an individual and

5 representative Plaintiff on behalf of herself and all others similarly situated who alleged that they were

6 subjected to a secondary strip search after having been arrested on a misdemeanor charge not involving

7 violence, drugs, or weapons, when they had no opportunity to obtain contraband after having been

8 subjected to an initial strip search. Defendants filed another motion for summary judgment on the

9 remaining secondary search claims and, after determining that there were too few potential class

10 members to qualify for class certification, Plaintiff notified the Court and counsel that it would not seek

11 certification of the Hunt secondary search claims.

12

Thereafter, the parties initiated settlement discussions which have been concluded and, if the

13 proposed settlement which has been approved by the parties is approved by the Court, it will finally end

14 this marathon litigation.

15 II. PROPOSED SETTLEMENT

16

The Proposed Settlement which is attached hereto as Exhibit 1, provides that the defendant

17 County will pay to Plaintiff Hunt the sum of $19,999.00, to be shared with any other similarly situated

18 persons who executed retainer agreements with Plaintiff’s counsel, and the Plaintiff, in return, will file a

19 request for a dismissal of the action, with prejudice. Pursuant to Section 2 of the Settlement Agreement,

20 Plaintiff’s counsel will have sole responsibility for holding, determining eligibility for, and administering

21 any settlement proceeds to any clients and/or putative or actual Plaintiffs, including and in addition to

22 Hunt.

23

According to the declaration of Mark E. Merin, filed herewith, Plaintiff, through discovery,

24 determined that there were only eight (8) women who were potentially similarly situated and made

25 repeated attempts to contact them to see if they would like to join the action. Counsel was able to contact

26 two (2) of those women; one, Vanessa Hunt, is the present Plaintiff; the other recorded that she was

27 arrested on a disqualifying charge and is therefore not a proper class member. Accordingly, Vanessa

28 \\\
3 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page4 of 6

1 Hunt, therefore, is the only Plaintiff who will share in this settlement and she has read and signed the

2 Settlement Agreement and General Release which is attached hereto.

3 III. THERE IS NO CLASS AND NO NOTICE SHOULD BE REQUIRED

4

Rule 23(e)(1)(A) requires the Court to “approve any settlement, voluntary dismissal, or

5 compromise of the claims, issues, or defenses of a certified class.” Subpart (1)(B) requires the Court to

6 “direct notice in a reasonable manner to all class members who would be bound by a proposed

7 settlement, voluntary dismissal, or compromise.” Although it might appear that court approval and notice

8 are mandatory on dismissal or compromise of a class suit, the authors of Newberg on Class Actions, 4th

9 Edition, ' 11:66, observe that:

10

. . . on closer analysis, notice is not mandatory in all instances but “shall be

given to all members of the class in such manner as the court directs.”

11

Broadly interpreted, this language is sufficiently flexible to permit the court

to approve a dismissal or compromise by the named plaintiff individually,

12

but to determine that no class notice at all is required, when the dismissal

or compromise will not result in any prejudice to the class. Thus, generally

13

speaking, while notice to the class will effectuate the policies behind the

rule, judicial discretion is permitted for withholding notice in instances

14

when notice would issue unnecessarily or force the court to employ

unneeded alternative methods to circumvent the policy when dismissal of

15

the class litigation is otherwise proper.

16 (4 Newberg on Class Actions ' 11:66.)

17

This is an appropriate case for the Court to exercise its discretion by not requiring notice to be

18 given of the proposed stipulated settlement for the following reasons:

19

1. No class has been certified and, indeed, there are only six (6) potential person who might

20 be similarly situated to Ms. Hunt, but diligent efforts have failed to result in contact with such potential

21 plaintiffs. In the absence of any way to contact such potential plaintiffs, the parties are unable to give

22 notice to those persons.

23

2. Settlement of Ms. Hunt’s case is not res judicata for any other claim; no one is foreclosed

24 from bringing an individual action as a result of this proposed settlement. To the contrary, if there are

25 other persons who could bring an action as a result of being subjected to secondary strip searches at

26 Contra Costa County Jail, the running of the statute of limitations on any such claims has been and will

27 be tolled until the dismissal of Ms. Hunt’s complaint. Since no notices have gone out advising persons of

28 the filing of Ms. Hunt’s claim, it is unlikely that there are any putative Plaintiffs who are relying on Ms.
4 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page5 of 6

1 Hunt to continue to litigate a class claim on their behalf. Thus it is unlikely that any persons will or could

2 be prejudiced by the settlement of Ms. Hunt’s complaint.

3

3. If notice were required to be given, it would have to be given to six (6) women who had

4 been subjected to a secondary strip search after having been arrested on a misdemeanor charge not

5 involving violence, drugs, or weapons, when they had no opportunity to obtain contraband after having

6 been subjected to an initial strip search. Plaintiff has already attempted to locate these six (6) women

7 using expensive on-line database searches, but has been able to locate only two (2) of the women: one,

8 Ms. Hunt, and another whose arrest charges made her an unqualified plaintiff. The additional expense of

9 attempting to locate the remaining six (6) women is not justified considering the difficulty of establishing

10 liability and damages.

11

While generally notice to class members is given when an action filed or certified as a class

12 action is proposed for or has been settled, in this case there is no class of women similarly situated to

13 Vanessa Hunt, and only six (6) other women who may have been arrested on misdemeanor charges, not

14 involving violence, drugs, or weapons and strip searched, before arraignment, then transferred to Contra

15 Costa West County Detention Facility and strip searched a second time, before arraignment, without

16 having had the opportunity to receive contraband following the first strip search.

17

Accordingly, Plaintiff requests (and Defendants are not aware of any basis to object to) the Court

18 issue an order approving the settlement without ordering that notice be given of the settlement to any

19 persons who might claim that they should share in the settlement funds since efforts to locate the few

20 women who might, conceivably, be similarly situated to Ms. Hunt, have been unsuccessful.

21 DATED: March 15, 2011

Respectfully submitted,

22

LAW OFFICE OF MARK E. MERIN

CASPER MEADOWS, SCHWARTZ & COOK

23

24

25

BY:_____/s/

26

- “Mark E. Merin”________________ Mark E. Merin Attorney for Plaintiffs

27 \\\
28 \\\
5 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

Case3:04-cv-04437-TEH Document213 Filed03/15/11 Page6 of 6

1 DATED: March 15, 2011

Respectfully submitted,

2

MCNAMARA,

3

SLATTERY,

BINGHAM MCCUTCHEN LLP and DODGE, NEY, BEATTY,
PFALZER & BORGES, LLP

4

5 BY:_/s/
6
7

- “Peter Obstler”______________________ Peter Obstler Attorney for Defendants

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
6 JOINT APPLICATION FOR APPROVAL OF SETTLEMENT AND DISMISSAL OF COMPLAINT Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 TEH

 
 1 Mark E. Merin (SBN 043849) – mark@markmerin.com

Cathleen A. Williams (SBN 068029) – cathleen@markmerin.com

2 W. Gordon Kaupp (SBN 226141) – gordon@markmerin.com

LAW OFFICES OF MARK E. MERIN

3 2001 P Street, Suite 100

Sacramento, California 95814

4 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

5

Andrew C. Schwartz (SBN 64578) – schwartz@csmlaw.com

6 CASPER, MEADOWS, SCHWARTZ & COOK 2121 North California Blvd., Suite 1020

7

Walnut Creek, CA 94596 Telephone: (925) 947-1147

8 Facsimile: (925) 947-1131

9 Attorneys for Plaintiffs

10

Peter Obstler (SBN 171623) - peter.obstler@bingham.com Jee Young You (SBN 241658) - jeeyoung.you@bingham.com

BINGHAM MCCUTCHEN LLP 11 Three Embarcadero Center

San Francisco, CA 94111-4067, U.S.A.

12 Telephone: (415) 393-2000

Facsimile: (415) 393-2286

13

James V. Fitzgerald, III (SBN 055632) -james.fitzgerald@mcnamaralaw.com

14 MCNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER & BORGES LLP

15

1211 Newell Ave. Post Office Box 5288

16

Walnut Creek, CA 94596 Telephone: (925) 939-5330

17 Facsimile: (925) 939-0203

18 Attorneys for Defendants

Co0oC 19

UNITED STATES DISTRICT COURT 20
NORTHERN DISTRICT OF CALIFORNIA

21 Co0oC

22

ROSALETY BARNETT, VANESSA HUNT, and CASE NO: C 04-04437 TEH

23 all others similarly situated,

STIPULATION AND [PROPOSED]

24

Plaintiffs,

ORDER DISMISSING PLAINTIFF

ADELINE CHAN’S CLAIMS AND SUCH

25 vs.

PART OF THE CLASS THAT SHE

REPRESENTS

26 COUNTY OF CONTRA COSTA, et al.,

27

Defendants.

28
1 STIPULATION AND [PROPOSED] ORDER DISMISSING PLAINTIFF ADELINE CHAN’S CLAIMS Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 THE

1

STIPULATION

2

Pursuant to the Northern District of California Local Rules 77-2(c) and Federal Rules of Civil

3 Procedure 41, Plaintiff Adeline Chan (“Plaintiffs”) and Defendants Contra Costa County, Contra Costa

4 County Sheriff’s Department, and Contra Costa County Sheriff Warren Rupf (“Defendants”), hereby

5 stipulate as follows:

6

WHEREAS, the parties stipulate that the claims of Plaintiff Adeline Chan shall be dismissed with

7 prejudice pursuant to the Ninth Circuit’s en banc decision in Bull v. City and County of San Francisco,

8 565 F.3d 964, issued on February 9, 2010; and

9

WHEREAS, the claims of all class members who were subject to only one strip search, prior to

10 housing, without reasonable suspicion, shall also be dismissed;

11

WHEREAS female class members subjected to a second strip search before being housed under

12 Defendants’ uniform policies, shall remain as class members, the liability for which Defendants dispute

13 as a matter of law and fact, without being dismissed.

14

NOW, THEREFORE, IT IS HEREBY STIPULATED THAT:

15

Plaintiff Adeline Chan and the class of persons she represents who were subject to only one strip

16 search, prior to housing, without reasonable suspicion, shall be dismissed.

17 DATED: June 24, 2010

Respectfully submitted,

18

LAW OFFICE OF MARK E. MERIN CASPER MEADOWS, SCHWARTZ & COOK

19

20

/s/ - “Mark E. Merin” BY:____________________________________

21

Mark E. Merin Attorney for Plaintiffs

22 DATED: June 24, 2010

Respectfully submitted,

23

24

MCNAMARA, SLATTERY,

BINGHAM MCCUTCHEN LLP and DODGE, NEY, BEATTY,
PFALZER & BORGES, LLP

25

26

/s/ - “Peter Obstler” BY:____________________________________

27

Peter Obstler Attorney for Defendants

28

2 STIPULATION AND [PROPOSED] ORDER DISMISSING PLAINTIFF ADELINE CHAN’S CLAIMS Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 THE

1

[PROPOSED] ORDER

2

Good cause appearing, PURSUANT TO THE STIPULATION IT IS SO ORDERED.

3 DATED: ________0_6_/_2_4_/_1_0______

4 5

H__O_N__.__________________________________T_H_TE_ALTTEOSNDEI. SHTERNIDCETRCSON

JUDGE,

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT

UNITED S ALIFORNIA

OURT NORTH

7

8 9

Judge Thelton E. Henderson

10 11

ERN DISTRICT OF C

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3 STIPULATION AND [PROPOSED] ORDER DISMISSING PLAINTIFF ADELINE CHAN’S CLAIMS Barnett, et al. v. Contra Costa County, et al.; USDC, No. Dist., Case No. C 04-4437 THE

 
 Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 1 of 10

United States District Court
For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5 ROSALETY BARNETT, et al.,

6

Plaintiff,

7

v.

8

COUNTY OF CONTRA COSTA, et al.,

9

Defendant.

10

11

NO. C-04-4437-TEH NO. C-04-5365-TEH
ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND FOR PARTIAL SUMMARY JUDGMENT, DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE, AND SETTING FURTHER CASE MANAGEMENT CONFERENCE

12

This matter came before the Court on January 8, 2007, on Plaintiff’s Motion for Class

13 Certification, and Defendant’s Motions to Strike Putative Felony Arrest Plaintiffs from the

14 Class Definition, or in the Alternative for Partial Summary Judgment.

15

This case arises out of Defendant Contra Costa County’s now-discontinued policy of

16 performing strip searches and visual body cavity searches on all persons arrested and housed 17 prior to arraignment. For the reasons set out below, the Court finds that Plaintiffs’ original 18 Complaint, filed in 2004, was brought solely on behalf of misdemeanor arrestees, and does

19 not toll the statute of limitations for persons arrested on felony charges. Accordingly,

20 Plaintiffs’ efforts to include felony arrestees in the putative class long after the statute has run

21 must fail. Named plaintiff Peter Morganelli, who was strip searched after a felony arrest, is 22 not a member of the class, and his own claims are time barred. The Court therefore 23 GRANTS Defendants’ Motion To Strike Putative Felony Arrest Plaintiffs From the Class

24 Definition, and further GRANTS Defendants’ Motion For Partial Summary Judgment as to

25 sole felony arrestee plaintiff, Peter Morganelli. Because no class representative remains, the

26 Court DENIES Plaintiffs’ Motion For Class Certification without prejudice. 27 //

28

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 2 of 10

United States District Court
For the Northern District of California

1 FACTUAL BACKGROUND

2

Plaintiff Rosalety Barnett was arrested on a misdemeanor offense on March 1, 2004.

3 After her arrest, she was taken to the Contra Costa County Jail in Martinez, where officers

4 subjected her to a visual body cavity search. She filed a group government tort claim on

5 August 9, 2004, alleging that she and others arrested on “minor crimes” were strip searched

6 pursuant to a County policy. The claim was denied.

7

On October 20, 2004, Barnett filed a class action complaint against Contra Costa

8 County and Sheriff Warren Rupf (“the County”) alleging that the County had an

9 unconstitutional policy of strip searching arrestees without reasonable suspicion that they

10 were carrying or hiding weapons or contraband. The Complaint was brought on behalf of

11

all persons who ... were arrested and subjected to a pre-arraignment strip and/or visual

body cavity search at the CONTRA COSTA County Jail without defendants first

12

having, and recording in writing, a reasonable suspicion that the search would be

productive of contraband or weapons.

13

Complaint, ¶ 22. The Complaint alleged violation of the Fourth Amendment under 42

14

U.S.C. § 1983. It also alleged a count under California’s Unruh Act and California Penal

15

Code § 4030 (which governs strip searches of “prearraignment detainees arrested for

16

infraction or misdemeanor offenses,” § 4030(b)), on behalf of “plaintiffs and all persons

17

similarly situated.” Complaint, ¶ 36. The Complaint attached Barnett’s group tort claim.

18

Complaint ¶ 14, Exh. A.

19

Discovery revealed that before June 1, 2003, the County had a blanket policy of

20

indiscriminately strip searching all arrestees slated for housing prior to arraignment. After

21

June 1, 2003, however, the County had a written policy requiring that all strip searches be

22

based on reasonable suspicion, and setting out procedures for documenting that suspicion

23

before strip searches were performed.

24

Newly aware that Barnett herself (arrested in 2004) was not searched pursuant to the

25

blanket policy, Plaintiffs sought to amend the Complaint to add a new plaintiff who had been

26

strip searched under the blanket policy. In July, 2005, Plaintiffs moved to amend the

27

Complaint to add Peter Morganelli, who was strip searched on December 3, 2002. Plaintiffs

28

2

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 3 of 10

United States District Court
For the Northern District of California

1 represented that Morganelli, who had been arrested for drunk driving, was a member of the

2 original class of plaintiffs. Plaintiffs’ Motion to Amend Class Action Complaint, filed July

3 19, 2005, at 3:23-24. The Court granted leave to amend, and the Amended Complaint was

4 filed on August 11, 2005.

5

Defendants moved to dismiss Morganelli’s claims. They argued that his state law

6 claims were barred by his failure to comply with California’s Tort Claims Act. Plaintiffs,

7 without admitting that Morganelli had no claims under Cal. Penal Code § 4030 because he

8 was arrested for felony DUI, did not oppose this portion of the motion.

9

In their Motion to Dismiss, Defendants also argued Morganelli’s § 1983 claim was

10 time-barred. Plaintiffs countered that Morganelli was “undisputably a member of the class

11 on whose behalf the action was originally filed,” because he was a “person arrested in Contra

12 Costa County for minor crimes not involving drugs, weapons, or violence” and strip searched

13 under a blanket strip search policy. Plaintiffs’ Opposition to Motion to Dismiss, filed

14 September 26, 2005, at 1. Relying solely on the pleadings and Plaintiffs’ representation that

15 Morganelli was a member of the putative class, the Court found that the statute of limitations

16 was tolled by the filing of the original class action Complaint under American Pipe &

17 Construction Co. v. Utah, 414 U.S. 538 (1974). Order, October 31, 2005, at 3-4.

18

Plaintiffs moved for class certification in June, 2006. With Peter Morganelli as the

19 sole class representative, they sought certification of a class consisting of

20

“All persons, since October 20, 2002, and continuing until Defendants’ prior custom

and policy was brought into compliance with the law on June 1, 2003, or such other

21

more recent date when the policy was implemented, who were arrested on any charge

(including felonies) not involving weapons, controlled substances, or felony violence,

22

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

cavity search(es) by defendants before arraignment at the Contra Costa County Jails

23

without any individualized reasonable suspicion that they were concealing

contraband. This class may include arrestees who were subjected to subsequent

24

blanket strip searches before arraignment after the initial strip search, without any

reasonable individualized suspicion that they had subsequently acquired and hidden

25

contraband on their persons.”

26 (Emphasis in original).

27

With their opposition to the class certification motion, the Defendants moved to strike

28 the felony arrest plaintiffs from the class definition in Plaintiffs’ motion for class

3

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 4 of 10

United States District Court
For the Northern District of California

1 certification, or, in the alternative, for partial summary judgment on all claims asserted on

2 behalf of the putative felony arrest plaintiffs.

3

DISCUSSION

4

I. The Complaint Did Not Include Felony Arrestees

5

Read as a whole, the class action Complaint filed on October 20, 2004 was brought on

6

behalf of only misdemeanor arrestees.

7

The language of the Complaint’s class definition does not distinguish between persons

8

arrested for misdemeanors and felonies. The Complaint was brought on behalf of

9

all persons who ... were arrested and subjected to a pre-arraignment strip and/or visual

10

body cavity search at the CONTRA COSTA County Jail without defendants first

having, and recording in writing, a reasonable suspicion that the search would be

11

productive of contraband or weapons.

12 Complaint, ¶ 22. The Complaint alleges that the searches complained of were performed

13 “without regard to the nature of the alleged offense for which plaintiff, and all those similarly

14 situated, had been arrested ....” Id. ¶ 20.

15

If this were the only relevant language in the Complaint, an expansive reading of the

16 class definition might be warranted. It is not. The Complaint also states that each member of

17 the class has a claim under Cal. Penal Code § 4030, which provides (with some exceptions)

18 that strip searches of persons arrested for infractions and misdemeanors must be supported

19 by reasonable suspicion. (Third Cause of Action, Complaint ¶ 36, alleging violation of

20 § 4030 “on behalf of Plaintiffs and all persons similarly situated” and seeking damages under

21 § 4030(p) on their behalf). The Complaint alleges that legal questions under § 4030 are

22 “common to the class,” Complaint ¶ 25 (emphasis added). It seeks damages for the entire

23 class under the California statute. Id., Prayer for Relief ¶ 6. Moreover, the Complaint

24 alleges that the searches were performed “without regard to whether or not plaintiff, or those

25 she represents, was eligible for cite and release under Penal Code § 853.6,” a statute

26 involving citations for misdemeanors.

27

The language of the complaint must be construed as a whole. Kasishke v. Keppler,

28 158 F.2d 809, 811 (10th Cir. 1947). The Complaint asserts a claim applicable only to

4

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 5 of 10

United States District Court
For the Northern District of California

1 misdemeanor arrestees on behalf of every class member. Misdemeanor arrestees are not a

2 subset of the class; they are the class.

3

Moreover, in various briefs before this Court, Plaintiffs have characterized their

4 claims as involving individuals arrested on “minor charges” or for “minor offenses.” See,

5 e.g., Plaintiff’s Motion to Amend Complaint, filed July 19, 2005, at 2 (plaintiff brought class

6 action “on behalf of herself and all other persons arrested in Contra Costa County for minor

7 crimes not involving drugs, violence, or weapons...”); Plaintiff’s Opposition to Motion to

8 Dismiss, filed September 26, 2005, at 1 (“minor offense not involving drugs, weapons, or

9 violence”). Statements in briefs can be treated as judicial admissions that bind a party.

10 Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 557 (9th Cir. 2003).1

11 Moreover, defendants rely particularly on representations that a plaintiff is not suing on a

12 particular claim. See, e.g., Sarro v. City of Sacramento, 78 F.Supp.2d 1057, 1061 (E.D.Cal.

13 1999) and cases cited therein. Plaintiffs are bound to their characterization of the case as one

14 involving persons arrested for “minor crimes” or “minor offenses” not involving drugs,

15 weapons, or violence.

16

In the context of this case, “minor crimes” or “minor offenses” do not include

17 felonies. Defendants argue that “minor offense” is a term of art that excludes felonies. See,

18 e.g., Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 716 n.8 (9th Cir. 1990)

19 (distinguishing “felonies” and “minor offenses” in the strip search context), Thompson v.

20 County of Cook, 428 F.Supp.2d 807, 812 (N.D.Ill., 2006)(equating “minor offenses” with

21 “misdemeanor or traffic offenses”). Plaintiffs counter that in strip search jurisprudence, the

22 Court’s constitutional inquiry turns on the nature of the crime charged, rather than the

23 felony/misdemeanor distinction, see Kennedy, 901 F.2d at 714-16; see also Murcia v. County

24 of Orange, 226 F.Supp.2d 489, 495 (S.D.N.Y.,2002), citing Kennedy, 901 F.2d at 714, so

25 plaintiffs’ phrase “minor offense not involving drugs, weapons, or violence” should be

26

27 1 Plaintiffs’ objection to the Court’s consideration of statements in Plaintiffs’ own briefs is
28 OVERRULED.

5

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 6 of 10

United States District Court
For the Northern District of California

1 viewed as shorthand that could include a class of cases potentially including both felonies

2 and misdemeanors.

3

Defendants have the better argument. While there are some cases which use the word

4 “minor” to refer to felonies, see, e.g., Rodriguez-Herrera v. I.N.S., 52 F.3d 238, 239 (9th Cir.

5 1995)(class C felony referred to as “minor offense”), far more distinguish between “minor

6 offenses” and “felonies.” Moreover, the Court is swayed by the fact that Kennedy itself uses

7 the terms as if they were mutually exclusive. See, Kennedy, 901 F.2d at 714-716. Plaintiffs

8 cannot ask the Court to look to the reasoning of Kennedy, but to overlook its explicit use of

9 the very terms at issue. In the context of this litigation, “minor offense” means a

10 misdemeanor or lesser offense.

11

Finally, Fed. R. Civ. Pro. 8(f) instructs the Court to construe the Complaint so “as to

12 do substantial justice.” Although this Rule ordinarily requires the Court to construe

13 pleadings liberally, that is not the case if a liberal construction would prejudice the defendant

14 because the pleading failed to give the defendant notice of what was being alleged. See, e.g.,

15 Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1186 (3rd Cir. 1994), quoting 5 Charles

16 A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1286, at 558-59 (2d ed.

17 1990) (“[A]n inadvertent mistake in a pleading will not be held against the pleader if another

18 party has not been misled by the mistake or otherwise prejudiced.”). The phrase “substantial

19 justice” must be given “a practical meaning. ...[T]his does not mean, on the one hand, that the

20 plaintiff may by pleading, mislead, entrap, surprise or prejudice his adversary, nor on the

21 other that a party should be permitted to weave a net of artificial refinements and subtle

22 technicalities in which to catch an unwary litigant.” Cherry v. Dealers Transport Co., 64

23 F.Supp. 682, 683 (D. Mo. 1946).

24

Here, there are several factors which, although not themselves determinative,

25 convince the Court that its narrower reading is not only correct but necessary to do

26 substantial justice. First, counsel for Plaintiffs have brought other strip-search cases which

27 distinguished between felony and misdemeanor arrestees. For example, in Bull v. City and

28 County of San Francisco, United States District Court for the Northern District of California

6

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 7 of 10

United States District Court
For the Northern District of California

1 Case No. C-03-1840, plaintiffs (represented by Plaintiffs’ counsel in this case) sought

2 certification of a subclass of felony and misdemeanor arrestees for federal strip search

3 claims, and a subclass of misdemeanor arrestees for claims under Penal Code § 4030; Judge

4 Breyer granted the motion months before the Complaint in this action was filed.

5 See Memorandum and Order, filed June 10, 2004, at 8, 12. Plaintiffs were capable of clearly

6 alleging a class that included felony arrestees who did not have claims under Penal Code

7 § 4030 but did not do so.

8

Second, when Plaintiffs sought information on persons arrested on “charges not

9 involving drugs, weapons, or violence,” Defendants objected that the phrase “not involving

10 drugs, weapons, or violence” was vague and ambiguous. The phrase had been used in

11 several contexts: in Interrogatory No. 2, in “charges not involving drugs, weapons, or

12 violence,” in Interrogatory No. 3, “misdemeanors, infractions, or minor offenses not

13 involving drugs, weapons, or violence,” and in Interrogatory No. 4, “crimes not involving

14 drugs, weapons, or violence.” In their motion to compel discovery responses, Plaintiffs

15 argued the meaning was clear, specifically referring to Penal Code § 4030:

16

Penal Code § 4030, the California law regulating how and when counties can conduct

strip searches, specifically refers to persons arrested on charges “involving weapons,

17

controlled substances, or violence.” Cal. Penal Code § 4030(f) and (g). … Thus, it is

impossible to believe that defendants find these terms so vague and ambiguous as to

18

render unanswerable and objectionable the discovery requests in which they are

contained.

19

Plaintiff’s Motion to Compel Discovery Responses, July 25, 2005, at 9. In other words,

20

Plaintiffs referred the Defendants to a California statute on misdemeanor arrestees to clarify

21

what “charges not involving drugs, weapons or violence” meant. Defendants ultimately

22

responded to the interrogatories by compiling lists of arrestees which eliminated felony

23

arrests entirely. See Declaration of Lt. Jacqueline Rubin in Support of Opposition to Motion

24

for Class Certification, ¶¶ 3-7 (Rubin prepared response to Interrrogatory No. 3 by

25

eliminating felonies); Declaration of Lt. Jacqueline Rubin in Support of Reply to Plaintiffs’

26

Opposition to Motion to Strike or for Partial Summary Judgment ¶¶ 2-3 (Rubin prepared

27

28

7

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 8 of 10

United States District Court
For the Northern District of California

1 response to Interrogatory No. 2 by eliminating felonies).2 Defendants were not on notice

2 that felonies were included in the claims.

3

It is clear to the Court from the timing of events in this litigation that Plaintiffs are

4 trying to sweep felony arrestees into the class at this late date to make the class fit the

5 proposed class representative, rather than vice versa. The case was originally filed on behalf

6 of only misdemeanor arrestees. Accordingly, Defendants’ Motion to Strike Putative Felony

7 Arrest Plaintiffs From The Class Definition is GRANTED.

8 II. Plaintiff Morganelli’s Claims Are Time-Barred

9

Plaintiff Morganelli’s claims, added to this case with the Amended Complaint filed

10 August 11, 2005, are time-barred.3

11

The County issued a written strip-search policy on June 1, 2003. Defendants argue

12 that the challenged “blanket” strip-search policy ended on that day, and the statute of

13 limitations for any challenge to the blanket strip search policy began to run at that time.

14

Plaintiffs acknowledge that the new written strip search policy was issued on June 1,

15 2003, but contend that the statute should run from the date the policy was actually

16 implemented, and the Court should deny partial summary judgment because Defendants

17 failed “to present any proof of the actual termination date of the blanket policy.”

18

At the same time, however, Plaintiffs affirmatively argue that the blanket policy ended

19 on June 1, 2003 in support of their own motion for class certification. In the context of

20 2 Plaintiffs objected to and moved to strike Lt. Rubin’s reply declaration on the
21 grounds that it was irrelevant, contained inadmissible hearsay, and was improperly filed with the Reply brief rather than in support of the motion itself. The motion to strike is DENIED.
22 The Court is considering Ms. Rubin’s testimony about her own understanding and statements not for the truth the matter, but to show Defendants’ understanding of the claims involved,
23 and they are relevant to the issue of what reading of the Complaint would serve substantial justice. While the declaration was filed with Defendants’ Reply, the Court finds that the
24 testimony relating to the County’s understanding of the scope of the class is offered in rebuttal to Plaintiff’s Opposition to the motion. Moreover, Plaintiffs responded with their
25 own subsequently filed declarations. See Declaration of Mark E. Merin in Support of Reply to Opposition to Plaintiffs' Evidentiary Motion to Strike Affidavits as Untimely Filed, filed
26 December 22, 2007. The Court is not considering Ms. Rubin’s account of Mr. Merin’s statements.
27 3 The Amended Complaint only explicitly added Morganelli’s claims, and did not
28 purport to add the claims of some additional class or subclass of felony arrestees.

8

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 9 of 10

United States District Court
For the Northern District of California

1 arguing Morganelli is an adequate class representative, Plaintiffs alleged that all plaintiffs’

2 state law claims were time-barred because the blanket strip search policy was discontinued

3 on June 1, 2003:

4

Defendants discontinued the blanket strip search policy on or about June 1, 2003; a

tort claim to preserve state law claims for strip searches under the blanket policy had

5

to be filed by January 1, 2004, and, if this deadline was not met, an application for

relief from failure to file had to be made within one year, that is, by June 1, 2004. A

6

tort claim was filed on behalf of the class by plaintiff Rosalety Barnett on August 9,

2004, but it was too late to protect the class’ state law claims for strip searches under

7

the discontinued blanket policy.

8 Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Class Certification,

9 Docket No. 71, at 10:8-16 (citations omitted, emphasis in original).

10

Plaintiffs cannot have it both ways. If the statute of limitations started to run for the

11 state law claims on June 1, 2003, when the policy was discontinued, it started to run on the

12 same date for the Fourth Amendment claims.

13

The statute of limitations for Morganelli’s claim under 42 U.S.C. § 1983 is two years.

14 Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004), cert. denied, 125 S.Ct. 1725 (2005).

15 The statute therefore ran on May 31, 2005.

16

Morganelli’s claims were added several months later, on August 11, 2005. If

17 Morganelli were a member of the class as alleged in the Complaint, the statute of limitations

18 on his claims would be tolled from the time the Complaint was filed to the time class

19 certification is denied. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 20 (1974); Catholic Social Services v. I.N.S., 232 F.3d 1139, 1146-47 (9th Cir. 2000). But

21 because Morganelli is not a member of the class, the tolling doctrine does not apply. Nor do 22 his claims relate back under In re Syntex Corp. Securities Litigation, 95 F.3d 922, 935 (9th

23 Cir. 1996), because the original Complaint did not give Defendants notice of the claims of

24 felony arrestees. His claims are therefore time-barred.

25

Defendants’ Motion for Partial Summary Judgment is GRANTED as to the sole

26 felony arrest plaintiff in the case, Peter Morganelli.

27 //

28

9

Case 3:04-cv-04437-TEH Document 96 Filed 01/24/2007 Page 10 of 10

United States District Court
For the Northern District of California

1 CONCLUSION

2

For the reasons set out above, the Court GRANTS Defendants’ Motion to Strike

3 Putative Felony Arrest Plaintiffs From The Class Definition, and GRANTS Defendants’

4 Motion for Partial Summary Judgment as to plaintiff Morganelli. Because no proposed class

5 representative remains, the Court DENIES Plaintiffs’ Motion for Class Certification without

6 prejudice.

7

A further case management conference in both Case No. C-04-4437 and Case No. C-

8 04-5365 is set for March 19, 2007, at 1:30 p.m.

9

10 IT IS SO ORDERED.

11

12

13 Dated: January 24, 2007 14

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

 
 Barnett v. County of Contra Costa, Not Reported in F.Supp.2d (2005)

2005 WL 5095264 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Rosalety BARNETT, Peter Morganelli, and all others similarly situated, Plaintiffs, v.
COUNTY OF CONTRA COSTA, et al., Defendants.
No. C 04-4437 TEH. | Oct. 31, 2005.
Attorneys and Law Firms
Mark E. Merin, Esq., Cathleen A. Williams, Law Office of Mark E. Merin, Sacramento, CA, Andrew C. Schwartz, Thom Seaton, Casper Meadows Schwartz & Cook, Walnut Creek, CA, for Plaintiffs.
Debra S. Belaga, Peter Obstler, O’Melveny & Myers, San Francisco, CA, James V. Fitzgerald, III, Noah G. Blechman, McNamara Dodge Ney Beatty Slattery & Pfalzer LLP, Walnut Creek, CA, for Defendants.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF MORGANELLI’S CLAIMS
THELTON E. HENDERSON, J.
*1 This matter came before the Court on Monday, October 14, 2005, on Defendants’ motion to dismiss the claims of Plaintiff Peter Morganelli pursuant to Federal Rule of Civil Procedure 12(b)(6). After carefully considering the parties’ written and oral arguments, the Court DENIES IN PART and GRANTS IN PART Defendants’ motion for the reasons discussed below.
BACKGROUND On or about March 1, 2004, Plaintiff Rosalety Barnett was arrested for allegedly resisting arrest. Barnett was taken to the Contra Costa County Jail in Martinez, California, where she was compelled to produce a urine sample while being directly observed by male deputies. She was also forced to disrobe in front of a deputy who directed Barnett to bend over, squat, and cough while spreading her buttocks and labia so that her anal and vaginal cavities could be visually inspected.

Within six months of the visual body cavity search, Barnett filed a group government tort claim for herself and for all persons similarly situated. Barnett’s group claim was denied on or about September 14, 2004, allowing the filing of this class action complaint.
Barnett brought this action on behalf of herself and all persons similarly situated pursuant to Federal Rule of Civil Procedure 23. The proposed class is defined to include “all persons who, in the period from and including two years prior to the filing of this Complaint, were arrested and subjected to a pre-arraignment strip and/or visual body cavity search at the Contra Costa County Jail without a reasonable suspicion, recorded in writing, that this search would be productive of contraband.” First Am. Compl. ¶ 23.
On August 11, 2005, Barnett filed an amended class complaint that included an additional representative plaintiff: Peter Morganelli. Morganelli alleges that on or about December 3, 2002, he was arrested in Contra Costa County on a charge not involving violence, drugs or weapons, and that, after his arrest, he was transported to the Contra Costa County Jail in Martinez, California, where he was subjected to a visual body cavity search prior to arraignment. First Am. Compl. ¶ 15.
Defendants now bring a 12(b)(6) motion to dismiss Morganelli’s claims.
LEGAL STANDARD Dismissal is appropriate under Rule 12(b)(6) when a plaintiff’s allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005). Extraneous information should not be considered in ruling on a motion to dismiss. Arpin v. Santa Clara Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001).
The Court must construe the complaint liberally, and dismissal should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal without leave to amend is appropriate only where a court is satisfied that the deficiencies of the complaint could not possibly be cured by amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996). Rule 12(b)(6) dismissals are reviewed de novo by the appellate court. Jacobson v. Hughes Aircraft Co. ., 105 F.3d 1288,
1

Barnett v. County of Contra Costa, Not Reported in F.Supp.2d (2005)

1292 (1997).
DISCUSSION
I. Morganelli’s State Law Claims For Monetary Damages *2 Morganelli concedes that his state law claim for monetary damages must be dismissed because of his failure to comply with the California Tort Claims Act which requires presentation of a government claim as a prerequisite to filing a tort action against a government entity or employee. Cal. Gov’t Code § 900. Accordingly, Defendants’ motion is GRANTED as to Morganelli’s state law claim for monetary relief.
II. Timeliness of Morganelli’s § 1983 Claim Morganelli’s claim for damages under 42 U.S.C. § 1983 is subject to California’s two-year statute of limitations for personal injury claims. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) ( § 1983 claims are best characterized as personal injury actions); Cal.Civ.Proc.Code § 335.1 (an action for personal injury must be brought within two years). Morganelli did not file his lawsuit until July 19, 2005, more than two years after the claim accrued on December 3, 2002. Thus, Defendants argue that Morganelli’s claim is time-barred. In response, Morganelli argues that the filing of Barnett’s original class action complaint on October 20, 2004, tolled the statute of limitations with respect to individual members of the putative class, including Morganelli, and that his claim is therefore timely.
Morganelli correctly observes that the statute of limitations for individual claims is normally tolled while class certification is pending, provided that the claimant is a member of the putative class. American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1119, 245 Cal.Rptr. 658, 751 P.2d 923 (1988) (tolling applies where the purported class action complaint sufficiently put the defendant on notice of the substance and nature of the defendant’s claims and would serve to further economy and efficiency of litigation). In this case, the putative class was defined to include:
[A]ll persons who, in the period from and including two years prior to the filing of this complaint [October 2004], ... were arrested and subjected to a pre-arraignment strip and/or visual body cavity search at the Contra Costa County Jail without defendants first having, and recording in writing, a

reasonable suspicion that the search would be productive of contraband or weapons.
First Am. Compl. ¶ 23.
Morganelli alleges that, less than two years prior to the filing of this complaint, he was arrested and subjected to a pre-arraignment strip and/or visual body cavity search without reasonable suspicion that the search would be productive of contraband or weapons. Morganelli’s allegations therefore make him a putative class member. Thus, if this Court certifies the putative class (which, by definition includes Morganelli) then the issue as to whether Morganelli’s individual claim is timely will be irrelevant because the statute of limitations for the class had not expired when the original complaint was brought. The question of whether the statute of limitations on Morganelli’s § 1983 claim was tolled while certification was pending will only become relevant if this Court denies class certification.
*3 Relying on extraneous material, Defendants contend that Barnett and Morganelli were searched under different policies because they were searched at different times. This court may not, however, consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). Furthermore, even if the Court were to consider these allegations, Defendants’ argument is best characterized as an objection to Morganelli as a class representative. Whatever objections Defendants have to the named plaintiffs as class representatives must be resolved through a class certification motion. See Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir.1969) (compliance with Rule 23 is not to be tested by a motion to dismiss for failure to state a claim).
Accordingly, and with good cause appearing, the Court DENIES Defendant’s motion to dismiss Morganelli’s § 1983 claim.
III. Morganelli’s Standing To Seek Declaratory and Injunctive Relief Defendants also argue that Morganelli will be unable to satisfy the “case or controversy” requirement of Article III and therefore lacks standing to seek declaratory and injunctive relief under the Supreme Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
As the Court explained above, Morganelli must, at this early stage of the litigation, be considered a member of the putative class. The Ninth Circuit has held that determinations relevant to standing or to class certification will also be relevant to the grant of injunctive
2

Barnett v. County of Contra Costa, Not Reported in F.Supp.2d (2005)

relief, and that determinations made with respect to class certification may also be relevant to the standing inquiry. Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.2001) (citing Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir.2001); Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 (9th Cir.1999) (en banc)). The issue of whether the putative class as a whole has standing to seek declaratory and injunctive relief must be resolved through the class certification motion by “determining whether named plaintiffs purporting to represent the class have established the requisite of a case or controversy with the defendants.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
It follows that the issue of whether any individual named plaintiff in the putative class, including Morganelli, has standing to seek declaratory and injunctive relief would be better resolved through a motion for class certification, and Defendants are welcome to re-raise the issue at that time. See Armstrong v. Davis, 275 F.3d at 860 (the court may reconsider whether the plaintiffs have standing or

have been appropriately certified as a class at any stage of the litigation).
Accordingly, and with good cause appearing, the Court DENIES Defendants’ motion to dismiss Morganelli’s claim for declaratory and injunctive relief for lack of standing.
CONCLUSION In short, for the reasons stated in this order, Defendants’ motion to dismiss is GRANTED with respect to Morganelli’s pendant state law claim for monetary relief and DENIED with respect to his § 1983 claim for monetary, declaratory, and injunctive relief.
*4 IT IS SO ORDERED.
	  

3

 
 Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 1 of 20
ADRMOP,CLOSED,E−Filing,MEDTERM,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04−cv−04437−TEH

Barnett v. County of Contra Costa et al Assigned to: Hon. Thelton E. Henderson Referred to: Magistrate Judge Joseph C. Spero Demand: $1,000,000 Cause: 42:1983 Civil Rights Act
Plaintiff
Rosalety Barnett

Date Filed: 10/20/2004 Date Terminated: 03/18/2011 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jeffrey I. Schwarzschild Department of Justice Office of the Attorney General Employment Regulation &Administration Section 1300 I Street Sacramento, CA 95814 916/324−8630 Email: Jeffrey.Schwarzschild@doj.ca.gov TERMINATED: 11/15/2006 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
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 ATTORNEY TO BE NOTICED
Cathleen A. Williams Law Offices of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443−6911 Fax: (916) 447−8336 ATTORNEY TO BE NOTICED
Thomas Andrew Seaton Casper Meadows Schwartz &Cook 2121 North California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947−1147 Fax: (925) 947−1131 ATTORNEY TO BE NOTICED

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 2 of 20

Plaintiff Peter Morganelli

represented by Jeffrey I. Schwarzschild (See above for address) TERMINATED: 11/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Cathleen A. Williams (See above for address) ATTORNEY TO BE NOTICED

Thomas Andrew Seaton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Adeline Chan TERMINATED: 06/24/2010

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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 Vanessa Hunt

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

V. Defendant County of Contra Costa

represented by Debra S. Belaga O'Melveny &Myers Two Embarcadero Center 28th Floor San Francisco, CA 94111 415−984−8700 Fax: (415) 984−8701 Email: dbelaga@omm.com TERMINATED: 06/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James V. Fitzgerald , III McNamara Dodge Ney Beatty Slattery

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 3 of 20

Pfalzer Borges &Brothers 1211 Newell Avenue Post Office Box 5288 Walnut Creek, CA 94596 (925) 939−5330 Fax: (925) 939−0203 Email: james.fitzgerald@mcnamaralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jee Young You Bingham McCutchen LLP Three Embarcadero Center 28th Floor San Francisco, CA 94111 415−393−2725 Email: jyou@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noah G. Blechman McNamara Dodge Ney Beatty Slattery Pfalzer Borges &Brothers LLP 1211 Newell Avenue Post Office Box 5288 Walnut Creek, CA 94596 (925) 939−5330 Fax: (925) 939−0203 Email: noah.blechman@mcnamaralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Peter Obstler Bingham McCutchen LLP Three Embarcadero Center, Suite 2800 San Francisco, CA 94111 415−393−2578 Fax: 415−393−2286 Email: peter.obstler@bingham.com ATTORNEY TO BE NOTICED

Defendant
Contra Costa County Sheriff's Department

represented by Debra S. Belaga (See above for address) TERMINATED: 06/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jee Young You (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noah G. Blechman

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 4 of 20

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Defendant
Warren E. Rupe Contra Costa County Sheriff

represented by James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jee Young You (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noah G. Blechman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/20/2004
10/20/2004 10/20/2004 11/02/2004
12/15/2004 01/31/2005

# Docket Text
1 CIVIL RIGHT'S COMPLAINT against defendants Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe ( Filing fee $ 150, receipt number 3365241.). Filed by plaintiff Rosalety Barnett.Jury demand, summons issued. (db, COURT STAFF) (Filed on 10/20/2004) Additional attachment(s) added on 10/25/2004 (db, COURT STAFF). (Entered: 10/20/2004)
CASE DESIGNATED for Electronic Filing. (db, COURT STAFF) (Filed on 10/20/2004) (Entered: 10/20/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 2/22/2005. Case Management Conference set for 2/28/2005 01:30 PM.. Signed by Judge Thelton E. Henderson on 3/9/04. (Attachments: # 1 Standing Order)(db, COURT STAFF) (Filed on 10/20/2004) (Entered: 10/20/2004)
3 SUMMONS Returned Executed by Rosalety Barnett. Contra Costa County Sheriff's Department served on 10/27/2004, answer due 11/16/2004; County of Contra Costa served on 10/27/2004, answer due 11/16/2004; Warren E. Rupe served on 10/27/2004, answer due 11/16/2004. (Merin, Mark) (Filed on 11/2/2004) (Entered: 11/02/2004)
4 DEFENDANTS' ANSWER to Complaint byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 12/15/2004) (Entered: 12/15/2004)
5 NOTICE of Related Case (Fitzgerald, James) (Filed on 1/31/2005) (Entered: 01/31/2005)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 5 of 20

01/31/2005 02/01/2005 02/10/2005
02/14/2005 02/23/2005
02/28/2005
03/18/2005 04/29/2005 05/06/2005 05/18/2005 06/06/2005 06/15/2005 06/17/2005 06/29/2005 07/19/2005
07/19/2005
07/19/2005

6 STIPULATION re 5 Notice of Related Case by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 1/31/2005) (Entered: 01/31/2005)
7 ORDER RELATING CASE to C04−5365 BZ. Signed by Judge Thelton E. Henderson on 2/1/05. (rbe, COURT STAFF) (Filed on 2/1/2005) (Entered: 02/01/2005)
8 STIPULATION and Proposed Order selecting Mediation by Rosalety Barnett, County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 2/10/2005) (Entered: 02/10/2005)
9 ORDER REFERRING CASE to Mediation. Signed by Judge Thelton E. Henderson on 02/14/05. (rbe, COURT STAFF) (Filed on 2/14/2005) (Entered: 02/14/2005)
10 JOINT CASE MANAGEMENT STATEMENT [PROPOSED] ORDER filed by Rosalety Barnett, County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Merin, Mark) (Filed on 2/23/2005) (Entered: 02/23/2005)
11 Minute Entry: Initial Case Management Conference held on 2/28/2005 before Judge Thelton E. Henderson. Further Case Management Conference set for 6/20/2005 at 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 2/28/2005) (Entered: 02/28/2005)
12 ADR Clerks Notice Appointing Randolph W. Hall as Mediator. (bt, COURT STAFF) (Filed on 3/18/2005) (Entered: 03/18/2005)
Pre MED phone conference scheduled on 5/3/05 at 11:45am w/Randolph W. Hall (bt, COURT STAFF) (Filed on 4/29/2005) (Entered: 04/29/2005)
Pre MED phone conference scheduled on has been rescheduled to 5/10/05 at 11:30am (bt, COURT STAFF) (Filed on 5/6/2005) (Entered: 05/06/2005)
Set/Reset Hearings: Mediation Hearing set for 6/8/2005 09:00 AM at One Frank Ogawa Plaza, 6th Floor, Oakland. Written statements due by 6/3/2005 (bt, COURT STAFF) (Filed on 5/18/2005) (Entered: 05/18/2005)
13 Letter from all Counsel. (Fitzgerald, James) (Filed on 6/6/2005) (Entered: 06/06/2005)
14 JOINT CASE MANAGEMENT STATEMENT [Consolidated] filed by Rosalety Barnett, County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Merin, Mark) (Filed on 6/15/2005) (Entered: 06/15/2005)
15 CLERK'S NOTICE: Further Case Management Conference continued to 9/19/2005 at 01:30 PM. (rbe, COURT STAFF) (Filed on 6/17/2005) (Entered: 06/17/2005)
16 CERTIFICATION OF MEDIATION Session held on 6/8/05 w/Randolph Hall. Case did not settle. Follow up session to be scheduled. ADR process on going. (bt, COURT STAFF) (Filed on 6/29/2005) (Entered: 06/29/2005)
17 MOTION to Amend/Correct Plaintiff's Class Action Complaint filed by Rosalety Barnett. Motion Hearing set for 8/29/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order Granting Plaintiff's Motion to Amend Class Action Complaint)(Merin, Mark) (Filed on 7/19/2005) (Entered: 07/19/2005)
18 Declaration of Mark E. Merin in Support of 17 MOTION to Amend/Correct Plaintiff's Class Action Complaint filed byRosalety Barnett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Related document(s) 17 ) (Merin, Mark) (Filed on 7/19/2005) (Entered: 07/19/2005)
19 PROPOSED 1ST AMENDED COMPLAINT against all defendants. Filed by Rosalety Barnett. (Merin, Mark) (Filed on 7/19/2005) Modified on 7/20/2005 (db, COURT STAFF). (Entered: 07/19/2005)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 6 of 20

07/22/2005 07/22/2005 07/25/2005 07/25/2005
07/25/2005 07/25/2005 07/28/2005
07/28/2005 08/08/2005 08/11/2005 08/11/2005 08/12/2005 08/12/2005
08/19/2005

20 ORDER REFERRING CASE to a Magistrate Judge for Discovery purposes. Signed by Judge Thelton E. Henderson on 7/21/05. (rbe, COURT STAFF) (Filed on 7/22/2005) (Entered: 07/22/2005)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery. (klh, COURT STAFF) (Filed on 7/22/2005) (Entered: 07/22/2005)
21 MOTION to Compel Discovery Responses filed by Rosalety Barnett. Motion Hearing set for 9/2/2005 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 7/25/2005) (Entered: 07/25/2005)
22 Declaration of Mark E. Merin in Support of 21 MOTION to Compel Discovery Responses filed byRosalety Barnett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Related document(s) 21 ) (Merin, Mark) (Filed on 7/25/2005) (Entered: 07/25/2005)
23 MOTION for Sanctions filed by Rosalety Barnett. Motion Hearing set for 9/2/2005 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 7/25/2005) (Entered: 07/25/2005)
24 Declaration of Jeffrey I. Schwarzschild in Support of 23 MOTION for Sanctions filed byRosalety Barnett. (Related document(s) 23 ) (Merin, Mark) (Filed on 7/25/2005) (Entered: 07/25/2005)
25 NOTICE OF REFERENCE, TIME AND PLACE OF HEARING, ORDER [Docket No. 21] MOTION to Compel Discovery Responses filed by Rosalety Barnett,, [Docket No. 23] MOTION for Sanctions filed by Rosalety Barnett. Motions set for hearing on 9/2/5 at 1:30 p.m. Signed by Judge Joseph C. Spero on 7/28/5. (klh, COURT STAFF) (Filed on 7/28/2005) (Entered: 07/28/2005)
Set/Reset Deadlines as to 21 MOTION to Compel Discovery Responses, 23 MOTION for Sanctions. Motion Hearing set for 9/2/2005 at 1:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 7/28/2005) (Entered: 07/28/2005)
26 RECEIVED PROPOSED STIPULATION re 19 Amended Complaint by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 8/8/2005) Modified on 8/12/2005 (db, COURT STAFF). (Entered: 08/08/2005)
27 STIPULATION AND ORDER PERMITTING PLAINTIFFS TO FILE A FIRST AMENDED COMPLAINT by Judge Thelton E. Henderson terminating 17 Motion to Amend/Correct ; (tdm, COURT STAFF) (Filed on 8/11/2005) (Entered: 08/11/2005)
28 AMENDED COMPLAINT CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL [FIRST AMENDED] against all defendants. Filed byRosalety Barnett. (Attachments: # 1 Exhibit A)(Merin, Mark) (Filed on 8/11/2005) (Entered: 08/11/2005)
29 Memorandum in Opposition re 21 MOTION to Compel Discovery Responses, 23 MOTION for Sanctions filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 8/12/2005) (Entered: 08/12/2005)
30 Declaration of James V. Fitzgerald, III in Support of 29 Memorandum in Opposition to Plaintiff's Motion to Compel Discovery Responses and Motion for Sanctions filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Related document(s) 29 ) (Fitzgerald, James) (Filed on 8/12/2005) (Entered: 08/12/2005)
31 Reply to Opposition re 21 MOTION to Compel Discovery Responses, 23 MOTION for Sanctions filed byPeter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 8/19/2005) (Entered: 08/19/2005)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 7 of 20

08/19/2005 08/19/2005 08/22/2005
08/22/2005 08/25/2005 08/26/2005 09/07/2005
09/09/2005 09/12/2005 09/19/2005 09/19/2005 09/26/2005 10/05/2005 10/24/2005 10/25/2005

32 Declaration of Jeffrey I. Schwarzschild in Support of Plaintiff's Reply to Defendants' Opposition to Plaintiff's Motion to Compel Discovery Responses filed byPeter Morganelli, Rosalety Barnett. (Attachments: # 1 Exhibit A)(Merin, Mark) (Filed on 8/19/2005) (Entered: 08/19/2005)
33 OBJECTIONS to the Declaration of James V. Fitzgerald by Peter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 8/19/2005) (Entered: 08/19/2005)
34 MOTION to Dismiss Plaintiff Peter Morganelli's Claims; Memorandum of Points and Authorities in Support Thereof filed by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. Motion Hearing set for 10/3/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Fitzgerald, James) (Filed on 8/22/2005) (Entered: 08/22/2005)
35 Proposed Order re 34 MOTION to Dismiss Plaintiff Peter Morganelli's Claims; Memorandum of Points and Authorities in Support Thereof by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 8/22/2005) (Entered: 08/22/2005)
36 STIPULATION to Continue Hearing on Defendants' Motion to Dismiss Plaintiff Peter Morganelli's Claims; [Proposed] Order by Peter Morganelli, Rosalety Barnett, County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Merin, Mark) (Filed on 8/25/2005) (Entered: 08/25/2005)
37 STIPULATION AND ORDER to continue hearing on the motion to dismiss. Motion Hearing continued to 10/24/2005 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 8/26/05. (rbe, COURT STAFF) (Filed on 8/26/2005) (Entered: 08/26/2005)
38 Minute Entry: Motion Hearing held on 9/2/2005 before Joseph C. Spero re 21 MOTION to Compel Discovery Responses filed by Rosalety Barnett, 23 MOTION for Sanctions filed by Rosalety Barnett. Motion to Compel Discovery Responses − Granted in part, denied in part. Motion for Sanctions − Denied. Court to preapre Order. (Court Reporter Joan Columbini.) (klh, COURT STAFF) (Date Filed: 9/7/2005) (Entered: 09/07/2005)
39 ORDER by Judge Joseph C. Spero, signed on 9/9/5, granting in part and denying in part 21 Plas Motion to Compel, and denying 23 Plas Motion for Sanctions (klh, COURT STAFF) (Filed on 9/9/2005) (Entered: 09/09/2005)
40 JOINT CASE MANAGEMENT STATEMENT filed by County of Contra Costa. (Fitzgerald, James) (Filed on 9/12/2005) (Entered: 09/12/2005)
41 Proposed Order Continuing 9/19/05 CMC by Rosalety Barnett. (Schwartz, Andrew) (Filed on 9/19/2005) (Entered: 09/19/2005)
42 ORDER continuing the Case Management Conference to 10/24/2005 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 9/19/05. (rbe, COURT STAFF) (Filed on 9/19/2005) (Entered: 09/19/2005)
43 Memorandum in Opposition re 34 MOTION to Dismiss Plaintiff Peter Morganelli's Claims; Memorandum of Points and Authorities in Support Thereof filed byPeter Morganelli, Rosalety Barnett. (Attachments: # 1 Exhibit 1)(Merin, Mark) (Filed on 9/26/2005) (Entered: 09/26/2005)
44 Reply to Opposition re 34 MOTION to Dismiss Plaintiff Peter Morganelli's Claims; Memorandum of Points and Authorities in Support Thereof filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 10/5/2005) (Entered: 10/05/2005)
45 Minute Entry: Hearing on Motion to Dismiss held on 10/24/2005 before Judge Thelton E. Henderson. Further Case Management Conference set for 12/12/2005 01:30 PM. (Court Reporter: Kathy Wyatt) (rbe, COURT STAFF) (Date Filed: 10/24/2005) (Entered: 10/24/2005)
46 Letter from Mark E. Merin to Magistrate Judge Spero in compliance with Order dated September 9, 2005. (Merin, Mark) (Filed on 10/25/2005) (Entered: 10/25/2005)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 8 of 20

10/31/2005 10/31/2005 12/05/2005 12/12/2005 04/17/2006 04/18/2006 05/10/2006 06/22/2006
06/22/2006
06/22/2006 06/22/2006 07/07/2006 07/07/2006
07/11/2006

47 ORDER by Judge Thelton E. Henderson granting in part and denying in part 34 Motion to Dismiss Plaintiff Morganelli's claims. (tehlc3, COURT STAFF) (Filed on 10/31/2005) (Entered: 10/31/2005)
48 Letter from James V. Fitzgerald, III. (Fitzgerald, James) (Filed on 10/31/2005) (Entered: 10/31/2005)
49 JOINT CASE MANAGEMENT STATEMENT filed by Peter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 12/5/2005) (Entered: 12/05/2005)
50 Minute Entry: Further Case Management Conference held on 12/12/2005 before Judge Thelton E. Henderson. Further Case Management Conference set for 6/5/2006 10:00 AM after the motion hearing.(not reported) (rbe, COURT STAFF) (Date Filed: 12/12/2005) (Entered: 12/12/2005)
51 STIPULATION TO EXTEND TIME TO FILE PLAINTIFFS' MOTION FOR CLASS CERTIFICATION; [PROPOSED] ORDER by Peter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 4/17/2006) (Entered: 04/17/2006)
52 STIPULATION AND ORDER extending time to file plaintiffs' motion for class certification. The motion shall be filed on or before 06/26/06. Signed by Judge Thelton E. Henderson on 04/18/06. (rbe, COURT STAFF) (Filed on 4/18/2006) (Entered: 04/18/2006)
53 CLERK'S NOTICE: Further Case Management Conference rescheduled to 8/7/2006 at 01:30 PM. (rbe, COURT STAFF) (Filed on 5/10/2006) (Entered: 05/10/2006)
54 NOTICE OF MOTION for Class Certification Filed by Plaintiff Peter Morganelli. Motion Hearing set for 8/7/2006 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Points &Authorities in Support of Motion# 2 Proposed Order Granting Motion to Certify Class# 3 Proposed Notice of Pendency of Class Action)(Merin, Mark) (Filed on 6/22/2006)...Modified on 6/27/2006 (tn, COURT STAFF). (Entered: 06/22/2006)
55 DECLARATION of Mark E. Merin in Support of re 54 MOTION for Class Certification Filed by Plaintiff Peter Morganelli. (Attachments: #(1) Exhibit A, #(2) Exhibit B, #(3) Exhibit C, #(4) Exhibit D, #(5) Exhibit E, #(6) Exhibit F, #(7) Exhibit G, #(8) Exhibit H). (Related document(s) 54 ). (Merin, Mark) (Filed on 6/22/2006)...Modified on 6/27/2006 (tn, COURT STAFF). (Entered: 06/22/2006)
56 DECLARATION of Andrew C. Schwartz in Support of re 54 MOTION for Class Certification Filed by Plaintiff Peter Morganelli. (Related document(s) 54 ). (Merin, Mark) (Filed on 6/22/2006)...Modified on 6/27/2006 (tn, COURT STAFF). (Entered: 06/22/2006)
57 DECLARATION of Peter Morganelli in Support of re 54 MOTION for Class Certification Filed by Plaintiff Peter Morganelli. (Related document(s) 54 ). (Merin, Mark) (Filed on 6/22/2006)...Modified on 6/27/2006 (tn, COURT STAFF). (Entered: 06/22/2006)
58 ASSOCIATION of Counsel NOTICE OF ASSOCIATION OF CO−COUNSEL FOR DEFENDANTS by County of Contra Costa, Contra Costa County Sheriff's Department. (Belaga, Debra) (Filed on 7/7/2006) (Entered: 07/07/2006)
59 Proposed Order STIPULATION AND [PROPOSED] ORDER RE: MODIFIED BRIEFING SCHEDULE AND HEARING ON MOTION FOR CLASS CERTIFICATION AND RESETTING CASE MANAGEMENT CONFERENCE by County of Contra Costa, Contra Costa County Sheriff's Department. (Belaga, Debra) (Filed on 7/7/2006) (Entered: 07/07/2006)
60 STIPULATION AND ORDER re: modified briefing schedule and rescheduling the hearing on the motion for class certification and Further Case Management Conference to 11/20/2006 at 10:00 AM. Signed by Judge William Schwarzer for Judge Henderson on 07/11/06. (rbe, COURT STAFF) (Filed on 7/11/2006) (Entered: 07/11/2006)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 9 of 20

10/19/2006 10/30/2006 10/30/2006
10/30/2006 10/30/2006 10/30/2006 10/30/2006
10/31/2006
10/31/2006 10/31/2006 11/06/2006 11/06/2006 11/09/2006 11/15/2006 11/20/2006

61 CLERK'S NOTICE continuing motion hearing to 12/11/2006 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (rbe, COURT STAFF) (Filed on 10/19/2006) (Entered: 10/19/2006)
62 MOTION for Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs filed by Contra Costa County Sheriff's Department. Motion Hearing set for 12/11/2006 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Obstler, Peter) (Filed on 10/30/2006) (Entered: 10/30/2006)
63 Declaration in Support of 62 MOTION for Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs filed byContra Costa County Sheriff's Department. (Attachments: # 1 Exhibit A to Fitzgerald Declaration# 2 Exhibit B to Fitzgerald Declaration# 3 Exhibit C to Fitzgerald Declaration# 4 Exhibit D to Fitzgerald Declaration)(Related document(s) 62 ) (Obstler, Peter) (Filed on 10/30/2006) (Entered: 10/30/2006)
64 Declaration of Peter Obstler filed byContra Costa County Sheriff's Department. (Attachments: # 1 Exhibit A to Declaration of Peter Obstler# 2 Exhibit B to Declaration to Peter Obstler# 3)(Obstler, Peter) (Filed on 10/30/2006) (Entered: 10/30/2006)
65 *** FILED IN ERROR. PLEASE SEE DOCKET # 68 . *** Declaration Lt. Jacqueline Rubin filed byContra Costa County Sheriff's Department. (Obstler, Peter) (Filed on 10/30/2006) Modified on 10/31/2006 (ewn, COURT STAFF). (Entered: 10/30/2006)
66 Declaration of William D. Hooker, Ph.D. in Support of Defendant Contra Costa County and Sheriff Rupf's Opposition to Plaintiffs' Motion for Class Certification filed byContra Costa County Sheriff's Department. (Obstler, Peter) (Filed on 10/30/2006) (Entered: 10/30/2006)
67 *** FILED IN ERROR. PLEASE SEE DOCKET # 69 . *** Memorandum in Opposition to Plaintiffs' Motion for Class Certification filed byContra Costa County Sheriff's Department. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Obstler, Peter) (Filed on 10/30/2006) Modified on 10/31/2006 (ewn, COURT STAFF). (Entered: 10/30/2006)
68 Declaration of LT. JACQUELINE RUBIN IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION − CORRECTION OF DOCKET # 65 filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 10/31/2006) (Entered: 10/31/2006)
69 Memorandum in Opposition re 54 MOTION to Certify Class CORRECTION OF DOCKET # 67 filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 10/31/2006) (Entered: 10/31/2006)
70 Proposed Order re 62 MOTION for Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 10/31/2006) (Entered: 10/31/2006)
71 Reply to Opposition re 54 MOTION to Certify Class filed byPeter Morganelli. (Merin, Mark) (Filed on 11/6/2006) (Entered: 11/06/2006)
72 Declaration of Mark E. Merin in Support of 71 Reply to Opposition to Plaintiffs' Motion for Class Certification filed byPeter Morganelli. (Related document(s) 71 ) (Merin, Mark) (Filed on 11/6/2006) (Entered: 11/06/2006)
73 ORDER Continuing Hearing (tehlc4, COURT STAFF) (Filed on 11/9/2006) (Entered: 11/09/2006)
74 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)
75 Memorandum in Opposition re 62 MOTION for Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs and Motion to Strike filed byPeter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 11/20/2006)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 10 of 20

11/20/2006 11/20/2006 11/20/2006 12/04/2006
12/04/2006 12/04/2006
12/04/2006 12/08/2006 12/08/2006 12/19/2006 12/19/2006

(Entered: 11/20/2006)
76 Declaration of Mark E. Merin in Support of 75 Memorandum in Opposition to Defendants' Motions: (1) to Strike or (2) Partial Summary Judgment filed byPeter Morganelli, Rosalety Barnett. (Attachments: # 1 Exhibit A)(Related document(s) 75 ) (Merin, Mark) (Filed on 11/20/2006) (Entered: 11/20/2006)
77 OBJECTIONS to re 63 Declaration in Support,, 62 MOTION for Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs −− Plaintiffs' Evidentiary Objections by Peter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 11/20/2006) (Entered: 11/20/2006)
78 CERTIFICATE OF SERVICE by Peter Morganelli, Rosalety Barnett re 75 Memorandum in Opposition, 77 Objection,, 76 Declaration in Support, (Merin, Mark) (Filed on 11/20/2006) (Entered: 11/20/2006)
79 REPLY to Plaintiffs' Opposition to re 62 MOTION to Strike Putative Felony Arrest Plaintiffs from the Class Definition in Plaintiffs' Motion for Class Certification, or in the alternative, for Partial Summary Judgment on All Claims Asserted on Behalf of Putative Felony Arrest Plaintiffs Filed by Defendants County of Contra Costa, Contra Costa County Sheriff's Department &Warren E. Rupe. (Obstler, Peter) (Filed on 12/4/2006)....Modified on 12/11/2006 (tn, COURT STAFF). (Entered: 12/04/2006)
80 Declaration of Lt. Jacqueline Rubin in Support of 79 Reply to Opposition, filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Related document(s) 79 ) (Obstler, Peter) (Filed on 12/4/2006) (Entered: 12/04/2006)
81 MEMORANDUM in Opposition re 77 Objection, DEFENDANTS CONTRA COSTA COUNTY AND SHERIFF WARREN RUPF'S OPPOSITION TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JAMES FITZGERALD FILED IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE OR FOR SUMMARY JUDGMENT filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Related document(s) 77 ) (Obstler, Peter) (Filed on 12/4/2006) (Entered: 12/04/2006)
82 Declaration of James V. Fitzgerald, III in Support of 81 Memorandum in Opposition, DECLARATION OF JAMES V. FITZGERALD III IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' EVIDENTIARY OBJECTIONS filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 81 ) (Obstler, Peter) (Filed on 12/4/2006) (Entered: 12/04/2006)
83 OBJECTIONS to [Evidentiary Objections] to Defendants' Untimely Filed Affidavits and Exhibits Relied Upon and Referenced in Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment by Peter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 12/8/2006) (Entered: 12/08/2006)
84 MOTION to Strike [Evidentiary] Defendants' Affidavits and Exhibits Untimely Filed in Support of Defendants' Reply to Plaintiffs' Opposition to Defendants' Motions to Strike or Alternatively For Summary Judgment filed by Peter Morganelli, Rosalety Barnett. Motion Hearing set for 1/8/2007 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Merin, Mark) (Filed on 12/8/2006) (Entered: 12/08/2006)
85 Memorandum in Opposition re 84 MOTION to Strike [Evidentiary] Defendants' Affidavits and Exhibits Untimely Filed in Support of Defendants' Reply to Plaintiffs' Opposition to Defendants' Motions to Strike or Alternatively For Summary Judgment filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 12/19/2006) (Entered: 12/19/2006)
86 Declaration of James V. Fitzgerald in Support of 85 Memorandum in Opposition, filed byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Attachments: # 1 Exhibit A)(Related document(s) 85 ) (Obstler,

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 11 of 20

12/22/2006 12/22/2006
12/22/2006 12/29/2006 12/29/2006 12/29/2006 12/29/2006 01/08/2007
01/11/2007 01/24/2007 01/29/2007 03/06/2007
03/07/2007 03/13/2007 03/14/2007 04/10/2007

Peter) (Filed on 12/19/2006) (Entered: 12/19/2006)
87 Reply to Opposition to Plaintiffs' Evidentiary Motion to Strike Affidavits as Untimely Filed filed byPeter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 12/22/2006) (Entered: 12/22/2006)
88 Declaration of Mark E. Merin in Support of 87 Reply to Opposition to Plaintiffs' Evidentiary Motion to Strike Affidavits as Untimely Filed filed byPeter Morganelli, Rosalety Barnett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 87 ) (Merin, Mark) (Filed on 12/22/2006) (Entered: 12/22/2006)
89 Reply to Opposition to Plaintiffs' Evidentiary Objections to Defendants' Untimely Filed Affidavits and Exhibits filed byPeter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 12/22/2006) (Entered: 12/22/2006)
90 MOTION for Sanctions filed by Peter Morganelli, Rosalety Barnett. Motion Hearing set for 2/5/2007 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Merin, Mark) (Filed on 12/29/2006) (Entered: 12/29/2006)
91 Declaration of Mark E. Merin in Support of 90 MOTION for Sanctions filed byPeter Morganelli, Rosalety Barnett. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 90 ) (Merin, Mark) (Filed on 12/29/2006) (Entered: 12/29/2006)
92 CERTIFICATE OF SERVICE by Peter Morganelli, Rosalety Barnett re 90 MOTION for Sanctions, 91 Declaration in Support (Merin, Mark) (Filed on 12/29/2006) (Entered: 12/29/2006)
93 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 12/29/2006) (Entered: 12/29/2006)
94 Minute Entry: Motion Hearing held on 1/8/2007 before Judge Thelton E. Henderson. The Motion for Class Certification and Motion to Strike or in the alternative, for Partial Summary Judgment are taken under submission. (Court Reporter: Sahar McVickar) (rbe, COURT STAFF) (Date Filed: 1/8/2007) (Entered: 01/08/2007)
95 Notice of Withdrawal of Motion re 90 Plaintiffs' Motion for Sanctions set for hearing on 2/5/07 filed byPeter Morganelli, Rosalety Barnett. (Merin, Mark) (Filed on 1/11/2007) (Entered: 01/11/2007)
96 ORDER Denying 54 Motion to Certify Class Without Prejudice, Granting 62 Defendants Motions To Strike and For Partial Summary Judgment, and Setting Further Status Conference (tehlc4, COURT STAFF) (Filed on 1/24/2007) (Entered: 01/24/2007)
97 REPORTER'S TRANSCRIPT of Proceedings Held on 1/8/2007 before Judge Thelton E. Henderson − [Court Reporter: Sahar McVickar]. (tn, COURT STAFF) (Filed on 1/29/2007) (Entered: 01/30/2007)
98 MOTION to Appear by Telephone REQUEST FOR TELEPHONIC APPEARANCE BY COUNSEL (CASE MANAGEMENT CONFERENCE) ON BEHALF OF DEFENDANTS CONTRA COSTA COUNTY AND SHERIFF WARREN RUPF; [PROPOSED] ORDER filed by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 3/6/2007) (Entered: 03/06/2007)
99 ORDER by Judge Thelton E. Henderson granting 98 Motion to Appear by Telephone (rbe, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)
100 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 3/13/2007) (Entered: 03/13/2007)
101 CLERK'S NOTICE continuing the Case Management Conference to 6/18/2007 at 01:30 PM. (rbe, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/14/2007)
102 United States Court of Appeals for the Ninth Circuit ORDER: The Court, in its discretion, denies the petition for permission to Appeal the District Court's

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 12 of 20

06/12/2007 06/18/2007
09/10/2007 09/12/2007 11/05/2007 11/19/2007 11/21/2007 11/27/2007 12/03/2007 12/04/2007 12/20/2007 01/29/2008 02/01/2008 04/25/2008
04/25/2008 04/25/2008
04/29/2008

1/24/2007 Order Denying Class Action Certification. (tn, COURT STAFF) (Filed on 4/10/2007) (Entered: 04/11/2007)
103 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 6/12/2007) (Entered: 06/12/2007)
104 Minute Entry: Further Case Management Conference held on 6/18/2007 before Judge Thelton E. Henderson. Further Case Management Conference set for 9/17/2007 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 6/18/2007) (Entered: 06/18/2007)
105 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 9/10/2007) (Entered: 09/10/2007)
106 CLERK'S NOTICE continuing the Case Management Conference to 11/26/2007 01:30 PM. (rbe, COURT STAFF) (Filed on 9/12/2007) (Entered: 09/12/2007)
107 CLERK'S NOTICE rescheduling the Case Management Conference for 12/10/2007 01:30 PM. (rbe, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/05/2007)
108 STIPULATION and [Proposed] Order Permitting Plaintiffs to File Second Amended Complaint by Rosalety Barnett. (Attachments: # 1 Exhibit A)(Merin, Mark) (Filed on 11/19/2007) (Entered: 11/19/2007)
109 STIPULATION AND ORDER permitting plaintiffs to file second amended complaint. Signed by Judge Thelton E. Henderson on 11/21/07. (rbe, COURT STAFF) (Filed on 11/21/2007) (Entered: 11/21/2007)
110 AMENDED COMPLAINT : Second Amended Complaint [to include Adeline Chan as Representative Plaintiff] against all defendants. Filed byAdeline Chan, Rosalety Barnett. (Merin, Mark) (Filed on 11/27/2007) (Entered: 11/27/2007)
111 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett, Adeline Chan. (Schwartz, Andrew) (Filed on 12/3/2007) (Entered: 12/03/2007)
112 ORDER Continuing Case Management Conference, Signed by Judge Thelton E. Henderson on 12/4/07. (tehlc4, COURT STAFF) (Filed on 12/4/2007) (Entered: 12/04/2007)
113 ANSWER to Amended Complaint byCounty of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Fitzgerald, James) (Filed on 12/20/2007) (Entered: 12/20/2007)
114 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett, Adeline Chan. (Schwartz, Andrew) (Filed on 1/29/2008) (Entered: 01/29/2008)
115 CLERK'S NOTICE continuing the Further Case Management Conference to 5/5/2008 at 01:30 PM. (rbe, COURT STAFF) (Filed on 2/1/2008) (Entered: 02/01/2008)
116 MOTION to Compel Defendants to Answer Interrogatories and Produce Documents filed by Adeline Chan. Motion Hearing set for 6/2/2008 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 4/25/2008) (Entered: 04/25/2008)
117 Brief re 116 MOTION to Compel Defendants to Answer Interrogatories and Produce Documents filed byAdeline Chan. (Related document(s) 116 ) (Merin, Mark) (Filed on 4/25/2008) (Entered: 04/25/2008)
118 Declaration of Andrew C. Schwartz in Support of 116 MOTION to Compel Defendants to Answer Interrogatories and Produce Documents filed byAdeline Chan. (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) 116 ) (Merin, Mark) (Filed on 4/25/2008) (Entered: 04/25/2008)
119 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett, Adeline Chan. (Schwartz, Andrew) (Filed on 4/29/2008) (Entered: 04/29/2008)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 13 of 20

04/29/2008
04/29/2008 05/01/2008 05/06/2008 08/11/2008 08/12/2008 08/18/2008
08/28/2008 02/02/2009 02/02/2009 02/02/2009 02/09/2009
02/18/2009 06/03/2009 06/03/2009 06/16/2009 07/06/2009

120 ORDER, by Judge Joseph C. Spero, denying 116 Motion to Compel Discovery Responses; Order to Meet and Confer on May 5, 2008, at 9:30 AM in the Jurors' Conference Room adjacent to Courtroom A. (klh, COURT STAFF) (Filed on 4/29/2008) (Entered: 04/29/2008)
Set/Reset Hearings: Discovery Hearing set for 5/5/2008 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/29/2008) (Entered: 04/29/2008)
121 CLERK'S NOTICE Rescheduling Hearing. Case Management Conference rescheduled for 8/18/2008 01:30 PM. Joint Case Management Statement due by 8/11/2008. (mat, COURT STAFF) (Filed on 5/1/2008) (Entered: 05/01/2008)
122 Minute Entry: Discovery Hearing held on 5/5/2008 before Joseph C. Spero. Parties resolved their discovery dispute. (Tape #Not recorded.) (klh, COURT STAFF) (Date Filed: 5/6/2008) (Entered: 05/06/2008)
123 CASE MANAGEMENT STATEMENT −Plaintiffs' Updated Case Management Conference Statement filed by Peter Morganelli, Rosalety Barnett, Adeline Chan. (Merin, Mark) (Filed on 8/11/2008) (Entered: 08/11/2008)
124 CASE MANAGEMENT STATEMENT filed by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe. (Obstler, Peter) (Filed on 8/12/2008) (Entered: 08/12/2008)
125 Minute Entry: Further Case Management Conference held on 8/18/2008 before Judge Thelton E. Henderson. Case Management Conference set for 2/9/2009 at 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 8/18/2008) (Entered: 08/18/2008)
126 NOTICE of Change of Address by Peter Obstler for O'Melveny &Myers LLP (Obstler, Peter) (Filed on 8/28/2008) (Entered: 08/28/2008)
127 CASE MANAGEMENT STATEMENT filed by County of Contra Costa. (Obstler, Peter) (Filed on 2/2/2009) (Entered: 02/02/2009)
128 CASE MANAGEMENT STATEMENT filed by Contra Costa County Sheriff's Department. (Obstler, Peter) (Filed on 2/2/2009) (Entered: 02/02/2009)
129 CASE MANAGEMENT STATEMENT filed by Contra Costa County Sheriff's Department. (Obstler, Peter) (Filed on 2/2/2009) (Entered: 02/02/2009)
130 Minute Entry: Further Case Management Conference held on 2/9/2009 before Judge Thelton E. Henderson. Case Management Conference set for 2/18/2009 at 03:00 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 2/9/2009) (Entered: 02/09/2009)
131 Minute Entry: Further Case Management Conference held on 2/18/2009 before Judge Thelton E. Henderson. (not reported) (rbe, COURT STAFF) (Date Filed: 2/18/2009) (Entered: 02/18/2009)
132 NOTICE of Change of Address by Peter Obstler (Obstler, Peter) (Filed on 6/3/2009) (Entered: 06/03/2009)
133 CERTIFICATE OF SERVICE by County of Contra Costa, Contra Costa County Sheriff's Department, Warren E. Rupe re 132 Notice of Change of Address of Counsel (Obstler, Peter) (Filed on 6/3/2009) (Entered: 06/03/2009)
134 NOTICE of Substitution of Counsel by Peter Obstler (Obstler, Peter) (Filed on 6/16/2009) (Entered: 06/16/2009)
135 Second MOTION to Certify Class filed by Adeline Chan. Motion Hearing set for 8/24/2009 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Points &Authorities in Support of Motion for Class Certification, # 2 Proposed Order Granting Plaintiff Adeline Chan's Motion for Class Certification, # 3 Proposed Notice of Pendency of Class Action)(Merin, Mark) (Filed on 7/6/2009) (Entered: 07/06/2009)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 14 of 20

07/06/2009 07/06/2009 07/06/2009 07/27/2009 07/27/2009 07/27/2009 07/27/2009
07/27/2009 07/27/2009
07/27/2009 07/28/2009

136 Declaration of Mark E. Merin in Support of 135 Second MOTION to Certify Class filed byAdeline Chan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 135 ) (Merin, Mark) (Filed on 7/6/2009) (Entered: 07/06/2009)
137 Declaration of Andrew C. Schwartz in Support of 135 Second MOTION to Certify Class filed byAdeline Chan. (Related document(s) 135 ) (Merin, Mark) (Filed on 7/6/2009) (Entered: 07/06/2009)
138 Declaration of Adeline Chan in Support of 135 Second MOTION to Certify Class filed byAdeline Chan. (Related document(s) 135 ) (Merin, Mark) (Filed on 7/6/2009) (Entered: 07/06/2009)
139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Motion Hearing set for 8/31/2009 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Obstler, Peter) (Filed on 7/27/2009) (Entered: 07/27/2009)
140 Declaration of Jacqueline Rubin in Support of 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Related document(s) 139 ) (Obstler, Peter) (Filed on 7/27/2009) (Entered: 07/27/2009)
141 Declaration of Michael Commiskey in Support of 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Related document(s) 139 ) (Obstler, Peter) (Filed on 7/27/2009) (Entered: 07/27/2009)
142 *** FILED IN ERROR. DOCUMENT REMOVED PER ORDER # 156 . *** Declaration of Jee Young You in Support of 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A: Chan Depo Excerpts, # 2 Exhibit B: Petition for Injunction, # 3 Exhibit C: TRO, # 4 Exhibit D: Restraining Order, # 5 Exhibit E: Proof of Service of TRO, # 6 Exhibit F: Proof of Service, Restraining Order, # 7 Exhibit G: Adeline Chan Police File)(Related document(s) 139 ) (Obstler, Peter) (Filed on 7/27/2009) (Main Document 142 replaced on 9/11/2009) (ewn, COURT STAFF). Modified on 9/11/2009 (ewn, COURT STAFF). (Entered: 07/27/2009)
143 Memorandum in Opposition to Plaintiff's Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 7/27/2009) (Entered: 07/27/2009)
144 *** FILED IN ERROR. DOCUMENT REMOVED PER ORDER # 156 . *** Declaration of Jee Young You in Support of 143 Memorandum in Opposition to Plaintiff's Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A: Adeline Chan Police File, # 2 Exhibit B: Chan Depo Excerpts, # 3 Exhibit C: Moyle v. Contra Costa County, 3/13/09 CMC Statement)(Related document(s) 143 ) (Obstler, Peter) (Filed on 7/27/2009) Modified on 7/28/2009 (mcl, COURT STAFF). Modified on 7/28/2009 (ewn, COURT STAFF). (Main Document 144 replaced on 9/11/2009) (ewn, COURT STAFF). Modified on 9/11/2009 (ewn, COURT STAFF). (Entered: 07/27/2009)
145 Appendix re 143 Memorandum in Opposition, 144 Declaration in Support, filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Appendix Tab 1: Doe v. Connecticut, # 2 Appendix Tab 2: Doe v. San Francisco, # 3 Appendix Tab 3: Bull v. San Francisco)(Related document(s) 143 , 144 ) (Obstler, Peter) (Filed on 7/27/2009) (Entered: 07/27/2009)
146 *** FILED IN ERROR. DOCUMENT REMOVED PER ORDER # 156 . *** Declaration of Jee Young You in Support of 143 Memorandum in Opposition, 144 Declaration in Support,, of Defendants Contra Costa County, Sheriff's Department,

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 15 of 20

08/04/2009 08/06/2009 08/31/2009 08/31/2009
08/31/2009 08/31/2009 08/31/2009
09/08/2009
09/08/2009
09/11/2009 09/11/2009 09/18/2009

and Sheriff Warren E. Rupf's Opposition to Plaintiffs' Motion for Class Certification CORRECTION OF DOCKET # 144 filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 143 , 144 ) (Obstler, Peter) (Filed on 7/28/2009) (Main Document 146 replaced on 9/11/2009) (ewn, COURT STAFF). Modified on 9/11/2009 (ewn, COURT STAFF). (Entered: 07/28/2009)
147 STIPULATION AND [PROPOSED] ORDER by County of Contra Costa. (Obstler, Peter) (Filed on 8/4/2009) (Entered: 08/04/2009)
148 ORDER re: briefing and hearing schedule on motions for class certification and summary judgment. Signed by Judge Thelton E. Henderson on 08/06/09. (tehlc3, COURT STAFF) (Filed on 8/6/2009) (Entered: 08/06/2009)
149 Memorandum in Opposition re 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed byRosalety Barnett, Adeline Chan. (Merin, Mark) (Filed on 8/31/2009) (Entered: 08/31/2009)
150 Declaration of Mark E. Merin in Support of 149 Memorandum in Opposition to Defendants' Motion for Summary Judgment as to Chan filed byRosalety Barnett, Adeline Chan. (Attachments: # 1 Exhibit J, # 2 Exhibit K, # 3 Exhibit L, # 4 Exhibit M, # 5 Exhibit N)(Related document(s) 149 ) (Merin, Mark) (Filed on 8/31/2009) (Entered: 08/31/2009)
151 Declaration of Russell Davis in Support of 149 Memorandum in Opposition filed byRosalety Barnett, Adeline Chan. (Attachments: # 1 Exhibit A)(Related document(s) 149 ) (Merin, Mark) (Filed on 8/31/2009) (Entered: 08/31/2009)
152 Declaration of Curtis J. Cope in Support of 149 Memorandum in Opposition filed byRosalety Barnett, Adeline Chan. (Attachments: # 1 Exhibit A)(Related document(s) 149 ) (Merin, Mark) (Filed on 8/31/2009) (Entered: 08/31/2009)
153 Statement of Non−Opposition re 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan Plaintiffs' Statement of Partial Non−Opposition to Defendants' Motion for Summary Judgment filed byAdeline Chan. (Related document(s) 139 ) (Merin, Mark) (Filed on 8/31/2009) (Entered: 08/31/2009)
154 Reply to Opposition re 139 MOTION for Summary Judgment For All Claims for Relief Alleged by Rep. Plaintiff Adeline Chan filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Affidavit You Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Obstler, Peter) (Filed on 9/8/2009) (Entered: 09/08/2009)
155 OBJECTIONS to re 149 Memorandum in Opposition, 151 Declaration in Support, 152 Declaration in Support (Objections to Expert Declarations) by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Affidavit You Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Obstler, Peter) (Filed on 9/8/2009) (Entered: 09/08/2009)
156 ORDER sealing documents containing personal information. Defendants to file redacted versions by 09/18/09. Signed by Judge Thelton E. Henderson on 09/11/09. (tehlc3, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
157 ORDER by Judge Thelton E. Henderson granting in part and denying in part 139 Defendants' Motion for Summary Judgment. (tehlc3, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
158 STIPULATION and [Proposed] Order re Briefing and Hearing Schedule for: (1) Withdrawal of Pending Opposition to Class Certification; (2) Leave to File Revised Opposition for Class Certification; and Revised Briefing Schedule and Hearing for Plaintiffs' Motion for Class Certification by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 9/18/2009) (Entered: 09/18/2009)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 16 of 20

09/21/2009 10/02/2009 10/05/2009 10/06/2009 10/06/2009 10/06/2009
10/06/2009
10/06/2009 10/06/2009 10/08/2009 10/08/2009 10/15/2009 10/15/2009 11/03/2009 11/03/2009

159 STIPULATION AND ORDER re: briefing and hearing schedule. The hearing for the Motion for Class Certification is set for 10/26/09 at 10:00 AM. Signed by Judge Thelton E. Henderson on 09/21/09. (rbe, COURT STAFF) (Filed on 9/21/2009) (Entered: 09/21/2009)
160 STIPULATION and [Proposed] Order to Extend Briefing Schedule to File Defendants' Opposition to Motion for Class Certification by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 10/2/2009) (Entered: 10/02/2009)
161 STIPULATION AND ORDER to extend briefing schedule to file defendants' opposition. Signed by Judge Thelton E. Henderson on 10/05/09. (rbe, COURT STAFF) (Filed on 10/5/2009) (Entered: 10/05/2009)
162 Memorandum in Opposition to re 135 Plaintiffs' Motion for Class Certification filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
163 Declaration of Jee Young You in Support of re 162 Defendants Opposition to Plaintiffs Motion for Class Certification filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A)(Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
164 EXHIBITS B to re 163 Jee Young You's Declaration in Support of Defendants Opposition to Plaintiffs Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit B)(Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
165 EXHIBITS C to re 163 Jee Young You's Declaration in Support of Defendants Opposition to Plaintiffs Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit C)(Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
166 Appendix of Unpublished Cases in Support of re 162 Defendants Opposition to Plaintiffs Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 1, # 2 2, # 3 3, # 4 4)(Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
167 Letter from Jee Young You to Honorable Thelton Henderson re Delay in Filing of Defendants' Opposition to Motion for Class Certification. (Obstler, Peter) (Filed on 10/6/2009) (Entered: 10/06/2009)
168 STIPULATION and [Proposed] Order for Extension of Time for Plaintiff to File Reply Brief by Adeline Chan. (Merin, Mark) (Filed on 10/8/2009) (Entered: 10/08/2009)
169 ORDER granting extension of time for reply brief and vacating hearing date on Plaintiffs' motion for class certification. Reply due on or before 10/15/09. Signed by Judge Thelton E. Henderson on 10/08/09. (tehlc3, COURT STAFF) (Filed on 10/8/2009) (Entered: 10/08/2009)
170 Reply to Opposition re 135 Second MOTION to Certify Class filed byAdeline Chan. (Merin, Mark) (Filed on 10/15/2009) (Entered: 10/15/2009)
171 Declaration of Mark E. Merin in Support of 170 Reply to Opposition Second to Motion to Certify Class filed byAdeline Chan. (Attachments: # 1 Exhibit J, # 2 Exhibit K, # 3 Exhibit L)(Related document(s) 170 ) (Merin, Mark) (Filed on 10/15/2009) (Entered: 10/15/2009)
172 ORDER by Judge Thelton E. Henderson granting 135 Motion to Certify Class. A further case management conference is set for 02/08/2010 at 1:30 PM. (rbe, COURT STAFF) (Filed on 11/3/2009) Modified on 11/3/2009 (rbe, COURT STAFF). (Entered: 11/03/2009)
Set/Reset Hearings: Further Case Management Conference set for 2/8/2010 01:30 PM in Courtroom 12, 19th Floor, San Francisco. (rbe, COURT STAFF) (Filed on 11/3/2009) (Entered: 11/03/2009)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 17 of 20

11/24/2009 11/30/2009 12/01/2009 01/25/2010
01/27/2010 02/23/2010
02/23/2010
02/24/2010
02/24/2010 03/08/2010 03/08/2010 03/11/2010
03/11/2010 04/05/2010

173 NOTICE by Rosalety Barnett, Adeline Chan, Contra Costa County Sheriff's Department, County of Contra Costa, Randolph W. Hall, Peter Morganelli, Warren E. Rupe Joint Proposed Notice of Pendency of Class Action (Merin, Mark) (Filed on 11/24/2009) (Entered: 11/24/2009)
174 ORDER re: Pendency of Class Action. Signed by Judge Thelton E. Henderson on 11/30/09. (rbe, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
175 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 12/1/2009) (Entered: 12/01/2009)
176 STIPULATION and [Proposed] Order to: (1) Extend Deadline to Give Notice to Potential Class Members; and (2) Continue the February 8, 2010 Case Management Conference Pending Mediation by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 1/25/2010) (Entered: 01/25/2010)
177 STIPULATION AND ORDER continuing the Case Management Conference to 4/12/2010 at 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 01/26/10. (rbe, COURT STAFF) (Filed on 1/27/2010) (Entered: 01/27/2010)
178 REQUEST for an Expedited Case Management Conference to Discuss Further Proceedings in Light of the Ninth Circuit's En Banc Decision in Bull v. San Francisco; Order Setting Expedited Case Management Conference filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 2/23/2010) (Entered: 02/23/2010)
179 Amended REQUEST for an Expedited Case Management Conference to Discuss Further Proceedings in Light of the Ninth Circuit's En Banc Decision in Bull v. San Francisco; Order Setting Expedited Case Management Conference Filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 2/23/2010) (Entered: 02/23/2010)
180 ORDER by Judge Thelton E. Henderson re: (179) Defendant Contra Costa County's request for expedited case management conference in Case No. C04−4437 TEH. Parties in both Case No. C04−4437 TEH and Case No. C04−5365 TEH shall meet and confer and file joint case management conference statements by 03/08/10. Case management conferences to be held in both cases on 03/15/10 at 1:30 PM. (tehlc3, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
***Deadlines Terminated. Set Deadlines/Hearings: Joint Case Management Statement due 3/8/2010 &Case Management Conference set for 3/15/2010 at 1:30 PM.. (tn, COURT STAFF) (Entered: 02/25/2010)
181 JOINT CASE MANAGEMENT STATEMENT filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 3/8/2010) (Entered: 03/08/2010)
182 [Proposed] Order Vacating Class Certification Order; Or In The Alternative, Granting Leave to File a Motion to Dismiss by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 3/8/2010) (Entered: 03/08/2010)
183 ORDER Vacating Case Management Conference &Granting Leave to File Motion for Reconsideration. Defendants May File a Motion for Reconsideration of the Court's re 157 Summary Judgment and re 172 Class Certification Orders by 04/05/2010. Signed by Judge Thelton E. Henderson on 03/11/2010. (tehlc3, COURT STAFF) (Filed on 3/11/2010) (Entered: 03/11/2010)
184 NOTICE by Rosalety Barnett, Adeline Chan of Unavailability of Counsel (Merin, Mark) (Filed on 3/11/2010) (Entered: 03/11/2010)
185 MOTION for Reconsideration of Order Denying Summary Judgment; Or in the Alternative, Motion for Reconsideration of Order Granting Motion for Class Certification; MEMORANDUM of Points &Authorities in Support Thereof. Filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Motion Hearing set for 5/10/2010 at 10:00 AM in Courtroom 12, 19th Floor,

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 18 of 20

04/05/2010
04/05/2010
04/05/2010
04/06/2010
04/22/2010 04/23/2010 05/10/2010 05/10/2010 05/10/2010 06/07/2010 06/07/2010 06/07/2010

San Francisco. (Obstler, Peter) (Filed on 4/5/2010) (Entered: 04/05/2010)
186 Declaration of Jee Young You in Support of re 185 MOTION for Reconsideration of Order Denying Summary Judgment; Or in the Alternative, Motion for Reconsideration of Order Granting Motion for Class Certification Filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: #(1) Exhibit A). (Related document(s) 185 ) (Obstler, Peter) (Filed on 4/5/2010) (Entered: 04/05/2010)
187 Declaration of Lieutenant Matthew Schuler in Support of re 185 MOTION for Reconsideration of Order Denying Summary Judgment; Or in the Alternative, Motion for Reconsideration of Order Granting Motion for Class Certification Filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Related document(s) 185 ) (Obstler, Peter) (Filed on 4/5/2010) (Entered: 04/05/2010)
188 Declaration of Lieutenant Eric Christensen in Support of re 185 MOTION for Reconsideration of Order Denying Summary Judgment; Or in the Alternative, Motion for Reconsideration of Order Granting Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (Part 1 of 2), # 5 Exhibit D (Part 2 of 2), # 6 Exhibit E, # 7 Exhibit F)(Related document(s) 185 ) (Obstler, Peter) (Filed on 4/5/2010) (Entered: 04/05/2010)
189 AMENDED Notice of Motion for Reconsideration of Order Denying summary Judgment; Or in the Alternative Reconsideration of Order Granting Motion for Class Certification filed byContra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Motion Hearing set for 5/17/2010 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Obstler, Peter) (Filed on 4/6/2010) (Entered: 04/06/2010)
190 STIPULATION and [Proposed] Order re: Hearings and Briefing Schedules by Rosalety Barnett, Adeline Chan, Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Merin, Mark) (Filed on 4/22/2010) (Entered: 04/22/2010)
191 STIPULATION AND ORDER re: hearings and briefing schedules. Motion Hearing continued to 6/28/2010 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 04/22/10. (rbe, COURT STAFF) (Filed on 4/23/2010) Modified on 4/26/2010 (rbe, COURT STAFF). (Entered: 04/23/2010)
192 NOTICE OF MOTION &MOTION to Amend the Complaint Filed by Rosalety Barnett. Motion Hearing set for 6/28/2010 09:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: #(1) Proposed Order)(Merin, Mark) (Filed on 5/10/2010) (Entered: 05/10/2010)
193 Declaration of Mark E. Merin in Support of re 192 MOTION to Amend the Complaint Filed by Rosalety Barnett. (Attachments: # 1) Exhibit A, #(2) Exhibit B, #(3) Exhibit C). (Related document(s) 192 ) (Merin, Mark) (Filed on 5/10/2010) (Entered: 05/10/2010)
194 Declaration of Vanessa C. Hunt in Support of re 192 MOTION to Amend the Complaint Filed by Rosalety Barnett. (Related document(s) 192 ) (Merin, Mark) (Filed on 5/10/2010) (Entered: 05/10/2010)
195 Memorandum in Opposition to re 192 Plaintiff's MOTION to Amend the Complaint filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 6/7/2010) (Entered: 06/07/2010)
196 Declaration of Jee Young You, Esq. in Support of re 195 Memorandum in Opposition to Plaintiff's Motion to Amend the Complaint filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: #(1) Exhibit A)(Related document(s) 195 ) (Obstler, Peter) (Filed on 6/7/2010) (Entered: 06/07/2010)
197 Declaration of Lieutenant Eric Christensen in Support of re 195 Memorandum in Opposition to Plainitff's Motion to Amend the Complaint filed by Contra Costa

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 19 of 20

06/09/2010 06/14/2010 06/14/2010 06/18/2010
06/21/2010 06/23/2010 06/24/2010 06/24/2010 06/28/2010 06/29/2010
07/12/2010 01/10/2011

County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 195 ) (Obstler, Peter) (Filed on 6/7/2010) (Entered: 06/07/2010)
198 MOTION to Strike re 192 Portions of Plaintiffs' Motion to Amend filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Motion Hearing set for 6/28/2010 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Exhibit A)(Obstler, Peter) (Filed on 6/9/2010) (Entered: 06/09/2010)
199 Reply to re 195 Opposition to re 192 MOTION to Amend the Complaint filed by Rosalety Barnett, Adeline Chan. (Merin, Mark) (Filed on 6/14/2010) (Entered: 06/14/2010)
200 Memorandum in Opposition to re 198 Defendants' MOTION to Strike Portions of Plaintiffs' Motion to Amend the Complaint filed by Rosalety Barnett, Adeline Chan. (Merin, Mark) (Filed on 6/14/2010) (Entered: 06/14/2010)
201 ORDER Signed by Judge Thelton E. Henderson Granting re 192 Plaintiffs' Motion for Leave to Amend &Granting re 198 Defendants' Motion to Strike. Plaintiffs shall file their amended complaint on or before 06/23/2010. The parties shall appear for a further case management conference on 06/28/10 at 1:30 PM and file a joint case management conference statement on or before 06/23/10. (tehlc3, COURT STAFF) (Filed 6/18/2010) (Entered: 06/18/2010)
202 Third Amended Class Action Complaint; Demand for Jury Trial against Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Filed by Rosalety Barnett, Vanessa Hunt. (Merin, Mark) (Filed on 6/21/2010) (Entered: 06/21/2010)
203 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett, Contra Costa County Sheriff's Department, County of Contra Costa, Vanessa Hunt, Warren E. Rupe. (Merin, Mark) (Filed on 6/23/2010) (Entered: 06/23/2010)
204 STIPULATION and [Proposed] Order Dismissing Plaintiff Adeline Chan's Claims and Such Part of the Class That She Represents by Rosalety Barnett, Contra Costa County Sheriff's Department, County of Contra Costa, Vanessa Hunt, Peter Morganelli, Warren E. Rupe. (Merin, Mark) (Filed on 6/24/2010) (Entered: 06/24/2010)
205 STIPULATION AND ORDER dismissing plaintiff Chan's claims. Adeline Chan terminated. Signed by Judge Thelton E. Henderson on 06/24/10. (rbe, COURT STAFF) (Filed on 6/24/2010) Modified on 6/24/2010 (rbe, COURT STAFF). (Entered: 06/24/2010)
206 Minute Entry: Further Case Management Conference held on 6/28/2010 before Judge Thelton E. Henderson. Trial date and schedule set. (not reported) (rbe, COURT STAFF) (Date Filed: 6/28/2010) (Entered: 06/28/2010)
207 ORDER for PRETRIAL PREPARATION: Discovery due by 11/30/2010. Jury Trial set for 4/5/2011 08:30 AM in Courtroom 12, 19th Floor, San Francisco for an estimated 10 days. Motion Hearing set for 2/14/2011 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Motions due by 1/10/2011. Pretrial Conference set for 3/21/2011 03:00 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 06/28/10. (rbe, COURT STAFF) (Filed on 6/29/2010) (Entered: 06/29/2010)
208 ANSWER to Plaintiffs' Third Amended Complaint filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. (Obstler, Peter) (Filed on 7/12/2010) (Entered: 07/12/2010)
209 NOTICE OF MOTION &MOTION for Summary Judgment; MEMORANDUM of Points &Authorities filed in Support Thereof filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe. Motion Hearing set for 2/14/2011 10:00 AM in Courtroom 12, 19th Floor, San Francisco before Hon. Thelton E. Henderson. (Attachments: #(1) Affidavit of Eric Christensen In Support of Defendants' MSJ, #(2) Exhibit A to Christensen Declaration, #(3)

Case: 3:04-cv-4437 As of: 06/18/2012 10:57 AM PDT 20 of 20

02/01/2011 02/01/2011 03/03/2011 03/15/2011 03/15/2011
03/18/2011

Affidavit of Jee Young You, Esq. In Support of Defendants' MSJ, #(4) Exhibit A to You Declaration, #(5) Exhibit B to You Declaration)(Obstler, Peter) (Filed on 1/10/2011) (Entered: 01/10/2011)
210 STIPULATION to Continue the Motion for Summary Judgment Briefing Schedule and Hearing Date; [Proposed] Order filed by Contra Costa County Sheriff's Department, County of Contra Costa, Warren E. Rupe, Rosalety Barnett, Vanessa Hunt. (You, Jee Young) (Filed on 2/1/2011) (Entered: 02/01/2011)
211 STIPULATION AND ORDER to continue the motion for summary judgment briefing schedule and hearing date. Signed by Judge Thelton E. Henderson on 02/01/2011. (tmi, COURT STAFF) (Filed on 2/1/2011) (Entered: 02/01/2011)
212 Joint STATUS STATEMENT filed by Rosalety Barnett, Contra Costa County Sheriff's Department, County of Contra Costa, Vanessa Hunt, Warren E. Rupe. (Merin, Mark) (Filed on 3/3/2011) (Entered: 03/03/2011)
213 Joint Application for Approval of Settlement and Dismissal of Complaint filed by Contra Costa County Sheriff's Department, County of Contra Costa, Vanessa Hunt, Warren E. Rupe. (Attachments: #(1) Proposed Order)(Merin, Mark) (Filed on 3/15/2011) (Entered: 03/15/2011)
214 Declaration of Mark E. Merin in Support of re 213 Joint Application for Approval of Settlement and Dismissal of Complaint filed by Contra Costa County Sheriff's Department, County of Contra Costa, Vanessa Hunt, Warren E. Rupe. (Attachments: #(1) Exhibit 1)(Related document(s) 213 ) (Merin, Mark) (Filed on 3/15/2011) (Entered: 03/15/2011)
215 ORDER GRANTING SETTLEMENT AND DISMISSING CASE. Signed by Judge Thelton E. Henderson on 03/18/2011. (tmi, COURT STAFF) (Filed on 3/18/2011) (Entered: 03/18/2011)

 
 CAND-ECF - Docket Report

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?791212028888518-L_3...

ADRMOP, E-Filing, RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04-cv-05365-TEH

Barnett v. City of Lafayette et al Assigned to: Hon. Thelton E. Henderson Demand: $0 Relate Case Case: 3:04-cv-04437-TEH Cause: 42:1983 Civil Rights Act
Plaintiff
Rosalety Barnett

Date Filed: 12/20/2004 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Mark E. Merin, Esq. Law Office of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 916-443-6911 Fax: 916-447-8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew C. 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
Cathleen A. Williams Law Offices of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443-6911 Fax: (916) 447-8336 ATTORNEY TO BE NOTICED
Thomas Andrew Seaton Casper Meadows Schwartz & Cook 2121 North California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 Fax: (925) 947-1131

1 of 5

6/22/2007 1:46 PM

CAND-ECF - Docket Report

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?791212028888518-L_3...

V. Defendant City of Lafayette
Defendant City of Lafayette Police Officers sued herein as DOES 1 & 2, And Roes 1 through 20, Inclusive

ATTORNEY TO BE NOTICED
represented by James V. Fitzgerald, III McNamara Dodge Ney Beatty Slattery Pfalzer Borges & Brothers 1211 Newell Avenue Post Office Box 5288 Walnut Creek, CA 94596 (925) 939-5330 Fax: (925) 939-0203 Email: james.fitzgerald@mcnamaralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James V. Fitzgerald, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/20/2004
12/20/2004 12/20/2004 12/20/2004 01/11/2005

#

Docket Text

1 COMPLAINT & Demand for Jury Trial - [Summons Issued] against City of Lafayette, And City of Lafayette Police Officers, [Filing Fee: $150.00, Receipt Number 3367252]. Filed by PlaintiffRosalety Barnett. (tn, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/13/2005 (tn, COURT STAFF). Additional attachment(s) added on 1/13/2005 (tn, COURT STAFF). Additional attachment(s) added on 1/13/2005 (tn, COURT STAFF). (Entered: 12/21/2004)
Summons Issued as to City of Lafayette, City of Lafayette Police Officers. (tn, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 5/2/2005 & Initial Case Management Conference set for 5/9/2005 04:00 PM. (Attachments: # 1 Standing Order).(tn, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 12/21/2004)
3 SUMMONS Returned Executed by Rosalety Barnett. City of Lafayette served on 1/3/2005, answer due 1/24/2005. (Merin, Mark) (Filed on 1/11/2005) (Entered: 01/11/2005)

2 of 5

6/22/2007 1:46 PM

CAND-ECF - Docket Report
01/24/2005 01/31/2005 01/31/2005 02/01/2005 02/01/2005
02/01/2005 02/02/2005 02/24/2005 02/28/2005
05/04/2005 06/15/2005 06/17/2005 09/19/2005
10/24/2005
12/05/2005

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?791212028888518-L_3...
4 ANSWER to Complaint byCity of Lafayette. (Fitzgerald, James) (Filed on 1/24/2005) (Entered: 01/24/2005)
5 NOTICE of Related Case (Fitzgerald, James) (Filed on 1/31/2005) (Entered: 01/31/2005)
6 STIPULATION re 5 Notice of Related Case by City of Lafayette. (Fitzgerald, James) (Filed on 1/31/2005) (Entered: 01/31/2005)
7 STIPULATION AND ORDER re administrative motion relating this case with C04-4437 TEH. Signed by Judge Thelton E. Henderson on 2/1/05. (rbe, COURT STAFF) (Filed on 2/1/2005) (Entered: 02/01/2005)
8 ORDER RELATING CASE to C04-4437 TEH. Case reassigned to Judge Thelton E. Henderson for all further proceedings. Judge Bernard Zimmerman no longer assigned to case. Signed by Judge Thelton E. Henderson on 2/1/05. (rbe, COURT STAFF) (Filed on 2/1/2005) (Entered: 02/01/2005)
Cases associated. (rbe, COURT STAFF) (Filed on 2/1/2005) (Entered: 02/01/2005)
9 CLERK'S NOTICE: Initial Case Management Conference set for 2/28/2005 at 01:30 PM. (rbe, COURT STAFF) (Filed on 2/2/2005) (Entered: 02/02/2005)
10 JOINT CASE MANAGEMENT STATEMENT [PROPOSED] ORDER filed by Rosalety Barnett, City of Lafayette, City of Lafayette Police Officers. (Merin, Mark) (Filed on 2/24/2005) (Entered: 02/24/2005)
11 Minute Entry: Initial Case Management Conference held on 2/28/2005 before Judge Thelton E. Henderson. Further Case Management Conference set for 6/20/2005 at 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 2/28/2005) (Entered: 02/28/2005)
12 REPORT of Rule 26(f) Planning Meeting [Joint] and Order. (Merin, Mark) (Filed on 5/4/2005) (Entered: 05/04/2005)
13 JOINT CASE MANAGEMENT STATEMENT [Consolidated] filed by Rosalety Barnett, City of Lafayette, City of Lafayette Police Officers. (Merin, Mark) (Filed on 6/15/2005) (Entered: 06/15/2005)
14 CLERK'S NOTICE: Further Case Management Conference continued to 9/19/2005 at 01:30 PM. (rbe, COURT STAFF) (Filed on 6/17/2005) (Entered: 06/17/2005)
15 ORDER continuing the Case Management Conference to 10/24/2005 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 9/19/05. (rbe, COURT STAFF) (Filed on 9/19/2005) (Entered: 09/19/2005)
16 Minute Entry: Further Case Management Conference not held on 10/24/2005 before Judge Henderson. Further Case Management Conference set for 12/12/2005 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 10/24/2005) (Entered: 10/24/2005)
17 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Merin, Mark) (Filed on 12/5/2005) (Entered: 12/05/2005)

3 of 5

6/22/2007 1:46 PM

CAND-ECF - Docket Report
12/12/2005
05/10/2006 07/11/2006 07/17/2006 10/19/2006 11/09/2006 11/15/2006 12/29/2006 01/24/2007 03/13/2007 03/14/2007 06/12/2007 06/18/2007

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?791212028888518-L_3...
18 Minute Entry: Further Case Management Conference held on 12/12/2005 before Judge Thelton E. Henderson. Further Case Management Conference set for 6/5/2006 at 10:00 AM. (not reported) (rbe, COURT STAFF) (Date Filed: 12/12/2005) (Entered: 12/12/2005)
19 CLERK'S NOTICE: Further Case Management Conference rescheduled to 8/7/2006 at 01:30 PM. (rbe, COURT STAFF) (Filed on 5/10/2006) (Entered: 05/10/2006)
20 STIPULATION and [Proposed] Order re: Resetting Case Management Conference by Rosalety Barnett, City of Lafayette, City of Lafayette Police Officers. (Merin, Mark) (Filed on 7/11/2006) (Entered: 07/11/2006)
21 STIPULATION AND ORDER resetting the Further Case Management Conference to 11/20/2006 at 10:00 AM. Signed by Judge Thelton E. Henderson on 07/14/06. (rbe, COURT STAFF) (Filed on 7/17/2006) (Entered: 07/17/2006)
22 CLERK'S NOTICE continuing the Case Management Conference to 12/11/2006 at 10:00 AM. (rbe, COURT STAFF) (Filed on 10/19/2006) (Entered: 10/19/2006)
23 ORDER Continuing Hearing (tehlc4, COURT STAFF) (Filed on 11/9/2006) (Entered: 11/09/2006)
24 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)
25 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 12/29/2006) (Entered: 12/29/2006)
26 ORDER Setting Further Case Management Conference for 3/14/2007 01:30 PM. Signed by Judge Thelton E. Henderson on 1/24/07. (tehlc4, COURT STAFF) (Filed on 1/24/2007) (Entered: 01/24/2007)
27 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 3/13/2007) (Entered: 03/13/2007)
28 CLERK'S NOTICE continuing the Case Management Conference to 6/18/2007 at 01:30 PM. (rbe, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/14/2007)
29 JOINT CASE MANAGEMENT STATEMENT filed by Rosalety Barnett. (Schwartz, Andrew) (Filed on 6/12/2007) (Entered: 06/12/2007)
30 Minute Entry: Further Case Management Conference held on 6/18/2007 before Judge Thelton E. Henderson. Further Case Management Conference set for 9/17/2007 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 6/18/2007) (Entered: 06/18/2007)

4 of 5

PACER Service Center
Transaction Receipt
06/22/2007 11:48:50

6/22/2007 1:46 PM

CAND-ECF - Docket Report

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?791212028888518-L_3...

PACER Login:

hs0328

Description:

Docket Report

Billable Pages: 3

Client Code:

Search Criteria:
Cost:

3:04-cv-05365-TEH 0.24

5 of 5

6/22/2007 1:46 PM