UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CASE NO. 3: 0 S1::..V ( '3.0 - ~

KIMBERLY MIRACLE, Individually and on behalf of all others similarly situated

PLAINTIFF

v.

COMPLAINT

BULLITT COUNTY, KENTUCKY

SERVE:

County Judge/Executive Kenneth Rigdon 214 Frank E. Simon P.O. Box 216 Shepherdsville, Kentucky 401 65

SERVE:

Walt Sholar 129 Highway 44W Shepherdsville, Kentucky 40165

DEFENDANTS

and

DANNY FACKLER, in his capacity as the BULLITT COUNTY JAILER 1671 South Preston Highway P.O. Box 216 Shepherdsville, Kentucky 40165
* * * * * * *
I. Introduction
1. Kimberly Miracle files this action in her individual capacity and on
behalf of all persons arrested for minor offenses who were required by the
Defendants in the Bullitt County Jail (hereinafter "Jail") to remove their clothing for

a visual inspection on admission to the Jail despite the absence of any reasonable suspicion that they were carrying or concealing weapons or contraband. This class of people includes all individuals who were so treated from March 3, 2004 to the present.
2. Such searches have been and continue to be regularly conducted by the Defendants and there are hundreds of members of this class. There are questions of law and fact in this case that are common to all members of this class. Plaintiff's claims are typical of those of this respective class, and they will fairly and adequately protect the interests of this class.
II. Jurisdiction and Venue 3. Plaintiff, and all other similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States. Accordingly, this Court has jurisdiction of this case pursuant to the provisions of 28 U.S.C. § 1331 and § 1343. Plaintiff and the other members of her class also seek declaratory and injunctive relief, as well as damages under the pendent jurisdiction of this Court for negligence, gross negligence and intentional infliction of emotional distress. As Bullitt County, Kentucky is the residence of all defendant parties to this action and location of all acts pertinent to this suit, venue is proper in this Court.
2

III. Class Action 4. Plaintiff brings this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. The class consists of all individuals arrested for minor offenses who were required to remove their clothing for a visual inspection on admission to the Jail despite the absence of any reasonable suspicion that they were carrying or concealing weapons or contraband. 5. Plaintiff will fairly and adequately protect the interests of all class members. She is a member of the class and her claims are typical of the claims of all class members. Plaintiff was offended at the treatment accorded her and the class members and will aggressively pursue the interests of the entire class. Plaintiff's interest in obtaining injunctive relief and actual and punitive damages for the violations of her constitutional rights and privileges are consistent with and not antagonistic of those of any other person within her class. 6. Given the circumstances of her search, as detailed below, Plaintiff alleges, on information and belief, that Defendants regularly require all persons arrested for nonviolent minor offenses to remove their clothing for a visual inspection of their bodies on admission to the Jail, even though there exists no reasonable grounds for believing that weapons or contraband have been concealed upon their persons. Such searches violate the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, Title 42 U.S.C. § 1983, Bell v. Wolfish, 441 U.S. 520 (1979) and the clearly established law of this circuit, as set forth in Masters v. Crouch, 872 F.2d. 1248 (6th Cir.), cert denied,
3

493 U.S. 977, 110 S.Ct. 503 (1989). The only question that remains to be resolved is whether Plaintiff and the members of the class are entitled to declaratory and injunctive relief, or to award of compensatory and punitive damages and, if so, the extent of such an award.
7. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It would be virtually impossible for all class members to intervene as parties-plaintiff in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.
8. Plaintiff is a resident of Jefferson County within the Commonwealth of Kentucky.
9. The Defendant, Bullitt County, at all times mentioned herein, employed, was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Bullitt County Jail.
10. The Defendant, Danny Fackler, is Jailer of Bullitt County, and as such, established policies formally or by custom for, and was responsible for the employment, training, supervision and conduct of, the officers and employees of the Bullitt County Jail.
4

V. Nature of Defendants' Conduct 11 . Defendants, individually and in conspiracy with one another, engaged in the conduct described below under color of the law of the Commonwealth of Kentucky and Bullitt County. The offenses described below resulted from the failure of the state and county agencies and individuals to employ qualified persons for positions of authority, and/or to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of the citizens of the Commonwealth of Kentucky. Defendants' conduct was intentional or grossly negligent, or indicated active malice toward Plaintiff and the class or at least a total and reckless disregard for and indifference to their constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiff and the class are entitled to recover.
VI. Facts 12. The Plaintiff, Kimberly Miracle, was arrested on March 3, 2004 and charged with violations of various motor vehicle statues, including failure to wear a seatbelt, improper registration plates, no insurance, giving a false name to police, and driving under the influence of alcohol, all misdemeanor offenses. She was arrested and was taken to the Bullitt County Jail. There, she was taken into a room where she was told to remove her clothes, bend over, and spread apart her buttocks and cough.
5

VII. The Law and Defendants' Policy 13. In 1979, the United States Supreme Court held that a pretrial detainee has the right not to be searched unless the reasonableness of such a search is established by "balancing ...the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, supra at 559 (emphasis added). On April 18, 1989, the Sixth Circuit issued its opinion in Masters v. Crouch, supra, in which it held:
It was clearly established on October 21, 1986... that a person charged with only a traffic violation or nonviolent minor offense may not be subjected to a strip-search unless there are reasonable grounds for believing that the particular person might be carrying or concealing weapons or other contraband. Id. at 1257. In this case, Plaintiff was arrested for nonviolent minor offenses. Neither her behavior nor her background gave Defendants any reasonable grounds for believing that she might be carrying or concealing weapons or other contraband. Under such circumstances, Defendants' requirement that Plaintiff expose the most private part of her physical person for a visual inspection was unconscionable, was an illegal strip-search by any definition and was a flagrant violation of the balancing requirement of Bell v. Wolfish, supra.
6

VIII. Causes of Action A. Count I
14. Paragraphs 1-1 3 above are incorporated herein by reference and made this Paragraph 14.
15. Plaintiff's search, described above, was part of a continuing pattern of misconduct and is the result of statutes, ordinances, regulations, policies, procedures, customs and practices of the Commonwealth of Kentucky and Bullitt County, either written or unwritten, that are systematically applied whenever an arrestee is admitted to or released from the Bullitt County Jail. Such practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for the constitutional and common law rights of the citizens of Kentucky, including Plaintiff and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such practices.
16. As a result of the foregoing, Plaintiff and her class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following rights and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983:
a. Their right to be secure in their person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments;
7

b. Their right to privacy in their person against unreasonable intrusions under the Fourth, Fifth, Ninth and Fourteenth Amendments;
c. Their right to the equal protection of the Ij;lw secured by the Fourteenth Amendment; and
d. Their right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments.
17. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' searches of Plaintiff and the members of her class were intentional, wanton and malicious, and were indicative of Defendants' total and reckless disregard of, indifference to the rights of, and rise of harm to, Plaintiff and the other members of the class.
B. Count II
18. Paragraphs 1-17 above are incorporated herein by reference and made this Paragraph 18.
19. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiff and the class severe mental and emotional distress.
C. Count III 20. Paragraphs 1-19 above are incorporated herein by reference and made this Paragraph 20. 21. By virtue of the foregoing, Defendants were negligent, and grossly negligent, all to the damage of the Plaintiff and the class.
8

IX. Damages 22. Paragraphs 1-21 above are incorporated herein by reference and made this Paragraph 22. 23. Plaintiff and the members of the class were unjustifiably and unconstitutionally searched in a manner that generated tremendous and overwhelming embarrassment, humiliation, and mental and emotional distress. As a result, they have suffered, and are entitled to recover, actual damages. Furthermore, Defendants' violations of the constitutional and common law rights of the Plaintiff and the class were cruel, malicious and evinced a total and reckless disregard for and indifference to those rights,. entitling Plaintiff and the class to recover punitive damages from Defendants in order to deter such conduct in the future.
X. Declaratory Judgment and Permanent Injunction 24. Paragraphs 1-23 above are incorporated herein by reference and made this Paragraph 24. 25. In addition to the foregoing, Plaintiff and the class request that this Court issue a declaratory judgment deeming unconstitutional any and all statutes, ordinances, regulations, policies, procedures, customs or practices under which they were forced to expose their genitalia for visual inspection, and further request that this Court permanently enjoin the Defendants from following or enforcing such statutes, ordinances, regulations, policies, procedures, customs or usages.
9

WHEREFORE, Plaintiff and the class she represents requests (a) that this action proceed as a class action under Fed. R. Civ. P. 23 and (b) a trial by jury, and further request that they and all members of the class (c) be awarded actual and punitive damages, (d) be granted the declaratory and injunctive relief requested herein, and (e) be awarded their costs, attorney fees, pre- and post-judgment interest and all other relief to which they are entitled under law or in equity.
Respectfully Submitted, WALKER, VAUGHN & WALLACE, PLLC
Louisville, Kentucky 40209 Telephone (502) 937-1944 Fax (502) 937-1117 Counsel for Plaintiff
10

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

KIMBERLY MIRACLE and

)

MELISA SQUIRES, Individually and )

on behalf of all others similarly

)

situated,

)

)

PLAINTIFFS

)

)

v.

)

)

BULLITT COUNTY, KENTUCKY

)

)

SERVE: County Judgel

)

Executive

)

Kenneth Rigdon

)

214 Frank E. Simon

)

P.O. Box 216

)

Shepherdsville, KY 40165 )

)

SERVE: Walt Sholar

)

129 Highway 44W

)

Shepherdsville, KY 40165 )

)

-and-

)

)

DANNY FACKLER, Individually and )

in his official capacity as the

)

BULLITT COUNTY JAILER

)

1671 South Preston Highway

)

P.O. Box 216

)

Shepherdsville, KY 40165

)

CIVIL ACTION NO. 3:05CV-130-C

FIRST AMENDED COMPLAINT

** ** ** ** **

I. Introduction

1. Kimberly Miracle and Melisa Squires file this action in their individual capacity

and on behalf of all persons arrested for minor offenses who were required by the

Defendants in the Bullitt County Jail (hereinafter "Jail") to remove their clothing for a visual

; ...
inspection on admission to the Jail despite the absence of any reasonable suspicion that they were carrying or concealing weapons or contraband. This class of people includes all individuals who were so treated from March 3, 2004 to the present.
2. Such searches have been and continue to be regularly conducted by the Defendants and there are hundreds of members of this class. There are questions of law and fact in this case that are common to all members of this class. Plaintiffs' claims are typical of those of this respective class, and they will fairly and adequately protect the interests of this class.
II. Jurisdiction and Venue 3. Plaintiffs, and all other similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. §1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States. Accordingly, this Court has jurisdiction of this case pursuant to the provisions of 28 U.S.C. §1331 and §1343. Plaintiffs and the other members of her class also seek declaratory and injunctive relief, as well as damages under the pendent jurisdiction of this Court for negligence, gross negligence and intentional infliction of emotional distress. As Bullitt County, Kentucky is the residence of all defendant parties to this action and location of all acts pertinent to this suit, venue is proper in this Court.
III. Class Action 4. Plaintiffs bring this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. The class consists of all individuals arrested for minor offenses who were required to remove their clothing for a visual inspection on
2

:.
admission to the Jail despite the absence of any reasonable suspicion that they were carrying or concealing weapons or contraband.
5. Plaintiffs will fairly and adequately protect the interests of all class members. They are members of the class and their claims are typical of the claims of all class members. Plaintiffs were offended at the treatment accorded them and the class members and will aggressively pursue the interests ofthe entire class. Plaintiffs' interest in obtaining injunctive relief and actual and punitive damages for the violations of their constitutional rights and privileges are consistent with and not antagonistic of those of any other person within her class.
6. Given the circumstances oftheir search, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly require all persons arrested for nonviolent minor offenses to remove their clothing for a visual inspection of their bodies on admission to the Jail, even though there exists no reasonable grounds for believing that weapons or contraband have been concealed upon their persons. Such searches violate the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, Title 42 U.S.C. §1983, Bel/v. Wolfish, 441 U.S. 520 (1979) and the clearly established law of this circuit, as set forth in Masters v. Crouch, 872 F.2d 1248 (6th Cir.), cert denied, 493 U.S. 977, 110 S.Ct. 503 (1989). The only question that remains to be resolved is whether Plaintiffs and the members of the class are entitled to declaratory and injunctive relief, or to award of compensatory and punitive damages and, if so, the extent of such an award.
7. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
106229v1 34160·1
3

a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It would be virtually impossible for all class members to intervene as parties-plaintiff in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.
8. Plaintiffs are residents of Jefferson County within the Commonwealth of Kentucky.
9. The Defendant, Bullitt County, at all times mentioned herein, employed, was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Bullitt County Jail.
10. The Defendant, Danny Fackler, is Jailer of Bullitt County, and as such, established policies formally or by custom for, and was responsible for the employment, training, supervision and conduct of, the officers and employees of the Bullitt County Jail.
V. Nature of Defendants' Conduct 11. Defendants, individually and in conspiracy with one another, engaged in the conduct described below under color of the law of the Commonwealth of Kentucky and Bullitt County. The offenses described below resulted from the failure of the state and county agencies and individuals to employ qualified persons for positions of authority, and/or to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of the citizens of the Commonwealth of Kentucky. Defendants' conduct was intentional or grossly negligent, or indicated active malice toward Plaintiffs and the class or at least a total and reckless
4
"

disregard for and indifference to their constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiffs and the class are entitled to recover.
VI. Facts 12. The Plaintiff, Kimberly Miracle, was arrested on March 3, 2004 and charged with violations of various motor vehicle statues, including failure to wear a seatbelt, improper registration plates, no insurance, giving a false name to police, and driving under the influence of alcohol, all misdemeanor offenses. She was arrested and was taken to the Bullitt County Jail. There, she was taken into a room where she was told to remove her clothes, bend over, and spread apart her buttocks and cough. 13. The Plaintiff, Melisa Squires, was arrested March 16, 2004. On arrival of the Bullitt County Jail, she was strip-searched in the same manner as Ms. Miracle. Although Ms. Squires was charged with possession of a controlled substance, this was attributable to back pain medication in Ms. Squires' possession at the time of her arrest, which did not give rise to a reasonable suspicion that she was carrying or concealing weapons or contraband.
VII. The Law and Defendants' Policy 14. In 1979, the United States Supreme Court held that a pretrial detainee has the right not to be searched unless the reasonableness of such a search is established by "balancing ...the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, supra at 559 (emphasis added). On April 18, 1989, the Sixth Circuit issued its opinion in Masters v. Crouch, supra, in which it held:
It was clearly established on October 21 , 1986 ... that a person charged with only a traffic violation or nonviolent minor offense
5

may not be subjected to a strip-search unless there are reasonable grounds for believing that the particular person might be carrying or concealing weapons or other contraband. Id. at 1257. In this case, Plaintiffs were arrested for nonviolent minor offenses. Neither their behavior nor their background gave Defendants any reasonable grounds for believing that they might be carrying or concealing weapons or other contraband. Under such circumstances, Defendants' requirement that Plaintiffs expose the most private parts of their physical person for a visual inspection was unconscionable, was an illegal strip-search by any definition and was a flagrant violation of the balancing requirement of Bell v. Wolfish, supra.
VIII. Causes of Action A. Count I
15. Paragraphs 1-14 above are incorporated herein by reference and made this Paragraph 15.
16. Plaintiffs' searches, described above, was part of a continuing pattern of misconduct and is the result of statutes, ordinances, regulations, policies, procedures, customs and practices of the Commonwealth of Kentucky and Bullitt County, either written or unwritten, that are systematically applied whenever an arrestee is admitted to or released from the Bullitt County Jail. Such practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for the constitutional and common law rights of the citizens of Kentucky, including Plaintiffs and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such practices.
6

17. As a result of the foregoing, Plaintiffs and their class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following rights and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983:
a. Their right to be secure in their person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments;
b. Their right to privacy in their person against unreasonable intrusions under the Fourth, Fifth, Ninth and Fourteenth Amendments;
c. Their right to the equal protection of the law secured by the Fourteenth Amendment; and
d. Their right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments.
18. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' searches of Plaintiffs and the members of their class were intentional, wanton and malicious, and were indicative of Defendants' total and reckless disregard of, indifference to the rights of, and rise of harm to, Plaintiffs and the other members of the class.
B. Count II 19. Paragraphs 1-18 above are incorporated herein by reference and made this Paragraph 19. 20. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiffs and the class severe mental and emotional distress.
C. Count III
7

21. Paragraphs 1-20 above are incorporated herein by reference and made this Paragraph 21.
22. By virtue of the foregoing, Defendants were negligent, and grossly negligent, all to the damage of the Plaintiffs and the class.
IX. Damages 23. Paragraphs 1-22 above are incorporated herein by reference and made this Paragraph 23. 24. Plaintiffs and the members of the class were unjustifiably and unconstitutionally searched in a manner that generated tremendous and overwhelming embarrassment, humiliation, and mental and emotional distress. As a result, they have suffered, and are entitled to recover, actual damages. Furthermore, Defendants'violations of the constitutional and common law rights of the Plaintiffs and the class were cruel, malicious and evinced a total and reckless disregard for and indifference to those rights, entitling Plaintiffs and the class to recover punitive damages from Defendants in order to deter such conduct in the future.
X. Declaratory Judgment and Permanent Injunction 25. Paragraphs 1-24 above are incorporated herein by reference and made this Paragraph 25. 26. In addition to the foregoing, Plaintiffs and the class request that this Court issue a declaratory judgment deeming unconstitutional any and all statutes, ordinances, regulations, policies, procedures, customs or practices under which they were forced to expose their genitalia for visual inspection, and further request that this Court permanently
8

enjoin the Defendants from following or enforcing such statutes, ordinances, regulations, policies, procedures, customs or usages.
WHEREFORE, Plaintiffs and the class they represent request (a) that this action
proceed as a class action under Fed. R. Civ. P. 23 and (b) a trial by jury, and further
request that they and all members of the class (c) be awarded actual and punitive damages, (d) be granted the declaratory and injunctive relief requested herein, and (e) be awarded their costs, attorney fees, pre- and post-judgment interest and all other relief to which they are entitled under law or in equity.
Respectfully submitted,
Dinsmore ohl LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202 Telephone: (502) 540-2300 Facsimile: (502) 585-2207
I~!)~~
Robert D. Walker, II, Esq. WALKER, VAUGHN & WALLACE, PLLC 7403 St. Andrews Church Road P.O. Box 9285 Louisville, KY 40209 Telephone: (502) 937-1944 Facsimile: (502) 937-1117 Counsel for Plaintiff
106230vl 34160·1
9

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiffs Motion for Leave to File First
?I Amended Complaint was served this q- day of December, 2005, via U.S. Mail, postage
prepaid, to the following: Robert T. Watson David P. Bowles LANDRUM & SHOUSE LLP 220 West Main Street, Suite 1900 Louisville, KY 40202-1395 Counsel for Defendants
Walter A. Sholar
Bullitt County Attorney 300 S. Buckman Street P.O. Box 1446 Shepherdsville, KY 40165
10

 
 Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 1 of 14 PageID #: 137

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
[Filed Electronically]

KIMBERLY MIRACLE, et al.,

)

individually and on behalf of

)

all others similarly situated,

)

)

PLAINTIFFS

)

)

v.

)

)

BULLITT COUNTY, KENTUCKY, et al., )

)

DEFENDANTS.

)

CIVIL ACTION NO. 3:05-CV-130-C

SETTLEMENT AGREEMENT I. INTRODUCTION
The parties, by counsel, enter into this Settlement Agreement ("the Agreement"), which they will submit to the Court for its approval. The Agreement: (a) contemplates certification of a class consisting of all persons who allege that they were arrested for any qualifying non-violent, non-drug related misdemeanor offense, and were strip-searched at the Bullitt County Detention Center ("the Jail") from March 2, 2004 to the present, when there existed no basis for a reasonable, individualized suspicion that they were carrying or concealing weapons or contraband; and (b) settles all claims of the class, including, without limitation on the generality of the foregoing, claims of class representatives and absent class members who have not opted out, for all money damages, attorneys’ fees, litigation expenses, and interest, by establishing a common fund of $800,000.00, to be shared among participating class members after payment of attorneys’ fees, litigation expenses,

Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 2 of 14 PageID #: 138
claims administration expenses, and payment to class representatives as provided in ¶ 31 below. Under this Agreement class members will receive one payment no matter how many times they were admitted into and/or searched while incarcerated at the Jail during the class period. II. TERMS
A. Class Definition and Certification 1. The Court, with the consent of the parties, shall certify a class composed of all persons who allege that after their arrest for any qualifying non-violent, non-drug related misdemeanor offense, they were strip-searched at the Jail from March 2, 2004 to the present, when there existed no basis for a reasonable, individualized suspicion that they were carrying or concealing weapons or contraband (hereafter referred to collectively as "the Class"). 2. Notice of the certification of the class and settlement shall issue within 30 days following the Court's preliminary approval of this settlement, both directly to the last known addresses of all potential class members and by publication, and in a form to be agreed upon by the parties, approved by the Court, and intended to maximize notice to the class and ease the filing of proofs of claim and administration of the settlement. B. Settlement Fund 3. Defendants will provide a settlement fund of $800,000.00 to settle all claims of Plaintiffs and the class, including claims for attorneys’ fees and litigation expenses, costs of administering the settlement, and interest, if any. 4. The parties agree and acknowledge that Defendants have denied liability in whole, and that the payment and other agreements contained herein were made and were
2

Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 3 of 14 PageID #: 139
given without admission of liability which is expressly denied, and which payment and other agreements were made and given by Defendants solely for the purpose of avoiding the expense of litigation, attorneys’ fees, and other costs. No language contained in this Agreement or in any orders issued by the Court approving or denying either preliminary or final approval to this Agreement shall in any way be construed as acknowledgments or admissions of liability, all of which are expressly denied by Defendants.
5. Defendants and their counsel agree to provide reasonable assistance to Plaintiffs’ counsel and to the Claims Administrator to facilitate the administration of this settlement by providing access to data, information and documents necessary to determine the last known address and contact information for all potential class members. Any information provided pursuant to such disclosure order shall be used only in connection with this litigation, and shall be kept confidential and not disclosed to anyone other than Plaintiffs' counsel and the Claims Administrator except as set forth in this Agreement.
6. Any request for such additional fees and costs shall be by application to the Court with opportunity for objection by Defendants. No such motion shall be allowed nor any additional fees or costs paid by the Defendants due to delays in the claims process for any reason, provided the Defendants have paid the $800,000.00 settlement proceeds set forth in ¶ 3 above to the Claims Administrator to establish the settlement fund in accordance with this Agreement. The payment of said amount shall fulfill and satisfy any and all financial obligations of the Defendants under this Agreement and no further fees or costs of any kind shall be paid by the Defendants.
7. Defendants shall maintain and control the settlement funds until such time as they are distributed to the Claims Administrator, who shall set up an interest bearing bank
3

Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 4 of 14 PageID #: 140
account or accounts at a bank within the Commonwealth of Kentucky, as may be appropriate, for payment of the qualifying individual claims which may be allowed under this Agreement. The Claims Administrator shall also post a bond and obtain appropriate insurance to guarantee the performance of the obligations required of the Claims Administrator under this Agreement and to pay for any claims of liability in connection with administration of the settlement fund. Such funds shall be distributed to qualified claimants by the Claims Administrator within 30 days of entry of the Court's Order resolving any appeals of disqualified claimants and dismissing this case. III. COURT SUPERVISION
8. The Defendants shall be obligated to perform their obligations under this Agreement upon the Court's entry of an order approving this Agreement after a fairness hearing pursuant to Fed. R. Civ. P. 23 (e). After entry of such order, this case shall remain pending during administration of the settlement. The Court may enter orders as appropriate to enforce this Agreement, to adjudicate the rights and responsibilities of the parties, to resolve appeals from Defendants and/or disqualified claimants, and to effect fair and orderly administration, as necessary, of the settlement fund. After distribution of all settlement proceeds and satisfaction and completion of all duties and responsibilities imposed by this Agreement, the Court shall enter an order of dismissal effecting the dismissal of all class claims against Defendants with prejudice, and incorporating the terms of this Agreement pursuant to Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
9. Any deadlines, dates, or other details in this Agreement may be amended only by agreement of the parties and approved by the Court on a showing of good cause. IV. FAIRNESS HEARING PURSUANT TO RULE 23 (e) FED. R. CIV. P.
4

Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 5 of 14 PageID #: 141
10. The parties will jointly request that the Court hold a fairness hearing pursuant to Fed. R. Civ. P. 23 (e) as soon as reasonably practicable to decide whether to approve this Agreement as fair, reasonable, and adequate. The fairness hearing shall be scheduled for a time not less than 30 days following publication of notice. The deadline for filing claims shall be set for a date not less than 60 days following the fairness hearing and the Order approving this Agreement. V. CLAIMS ADMINISTRATOR
11. Class counsel recommends that Analytics, Inc. be approved by the Court as Claims Administrator. Analytics, Inc. has substantial experience in processing claims filed by claimants in class action settlements similar in size and scope to the settlement in this action, and performing related administrative work and, if approved by the Court at the preliminary approval hearing, shall be retained by Plaintiffs’ counsel under a contract requiring a bond or surety to Defendants for the settlement funds, with all payments being paid from the settlement fund. Counsel for the parties and the parties themselves shall have no responsibility or liability for administering the settlement.
12. The Claims Administrator will administer notice to class members in the manner prescribed by the Court; shall accept and docket all claim forms; shall send copies of all objections to the settlement to counsel for the parties on a rolling basis as soon as practicable after they are received; shall send copies of all claims forms to counsel for the parties on a rolling basis as soon as practicable after they are received, who shall have an opportunity to object; shall sustain or overrule any objections of Defendants to claims made, subject to further appeal to the Court; shall send all notices that a claim has been either accepted or rejected to class members; shall resolve any appeals of claim denials,
5

Case 3:05-cv-00130-JBC-JDM Document 40-2 Filed 05/27/08 Page 6 of 14 PageID #: 142
subject to further appeal to the Court; shall calculate the amount of each claim pursuant to the formula set out in this Agreement; shall distribute settlement funds to approved claimants; and shall report to the Court as necessary including providing a final report.
13. Counsel for the parties will oversee settlement administration and will provide direction to the Claims Administrator as needed. In the event of any dispute as to whether any of the parties has failed to comply with any of the terms of this Agreement, the parties shall contact the Court in an effort to resolve any such dispute prior to filing any motion seeking specific performance. VI. NOTICE, OBJECTIONS. AND CLAIMS
14. The Claims Administrator will send a Notice of Certification of Class Action and Settlement and of the Fairness Hearing (“Notice of Settlement") and a Settlement Claim Form by first class mail postage prepaid to all potential class members at their last known addresses within 30 days following the Court's preliminary approval of this settlement. The Notice of Settlement and Settlement Claim Form shall be in a form jointly agreed to by the parties and submitted to and approved by the Court. If any mail is returned by the post office with notice of a more current address, the Claims Administrator will resend the notice to that address. The Claims Administrator is not required to make any further efforts to send mail directly to class members. A Notice of Settlement and Settlement Claim Form will be made available to anyone who requests such information. Claim forms will be available on request through the Claims Administrator including through a toll-free number.
15. The Notice of Settlement will include a summary of the terms of the settlement and the class member’s right to contest the settlement.
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16. The Settlement Claim Form shall request the class member’s contact information, affirmation that he meets the class definition and that all information on the claim form is true and accurate, instructions for check delivery, and a Form W-9. The claim form shall include an acknowledgement that the information set forth therein is true and correct to the best of the claimant’s recollection, and is signed under penalty of perjury pursuant to 28 U.S.C. § 1746.
17. The Claims Administrator will also publish the Notice of Settlement ("Published Notice") in the Louisville Courier-Journal, the News Enterprise, and the Pioneer News. The Published Notice shall be in a form jointly agreed to by the parties and submitted to and approved by the Court. Defendants agree to post the Published Notice in the admission area of the Jail. The notices will be posted contemporaneous with the mailing of the Notice of Settlement and publication of the Published Notice, and will remain posted until the last day that the settlement claim forms can be filed. In addition, Defendants have agreed to make available, during the same time frame defined in the prior sentence, to inmates (or anyone else) who requests it, a copy of the Notice of Settlement, and the cost of those copies shall be paid out of the settlement fund and shall be considered part of the cost of administering the settlement and shall not serve to increase Defendants' costs or liabilities under this Agreement.
18. The Claims Administrator will send a claim form to anyone who requests one before the time for filing claim forms has expired. The Claims Administrator will also maintain a toll-free number for claimants to call to request a claim form or with questions. This number will be operational for at least five months following Court approval of this Agreement.
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19. In order for a class member to claim a share of the settlement, he/she must submit a valid and complete Settlement Claim Form postmarked no later than 60 days following the date of entry of the Court Order approving this Agreement after the Fed. R. Civ. P. 23 (e) fairness hearing. This deadline is the “Claims Deadline.” Defendants’ counsel shall be provided copies of all claims forms as soon as practicable after receipt, and shall have 30 days to file objections to any individual claims with the Claims Administrator, with copies of any such objections to Plaintiffs’ counsel. This 30-day period for objecting may be extended for good cause shown. The Claims Administrator shall make a decision as to any objection within 30 days of receipt of the objection and after consultation with Plaintiffs' counsel. Any such decision may be appealed by Plaintiffs or Defendants to the Court.
20. In order for a class member to object to the proposed settlement, he/she must submit a written objection to the Claims Administrator, but such written objection must be postmarked at least one week prior to the fairness hearing, and received by the Claims Administrator prior to the fairness hearing, in order to be considered timely. The Claims Administrator shall provide copies of all objections to counsel for the parties as soon as practicable by mail and/or fax as may be necessary, so that all objections are provided to counsel for the parties prior to the fairness hearing. In addition, an objector may appear in person or through counsel at the fairness hearing when the objection will be considered by the Court. The objecting class member must also submit a Settlement Claim Form to the Claims Administrator if he wishes to be eligible to share in the settlement should it be approved despite his objection. VII. APPROVAL AND APPEALS
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21. The Claims Administrator will review each claim form to determine whether the claimant is a qualifying class member by confirming: (a) that the Settlement Claim Form is timely and valid; (b) that the information on the form is consistent with available data previously provided by Defendants, and supplemented by Defendants in their objection, if any; and (c) that the form is completely filled out and signed.
22. The Claims Administrator may, with knowledge and written consent of Defendants, waive a technical defect in a claim form to achieve substantial justice.
23. If a claimant does not meet the class definition, the Claims Administrator will send a Notice of Claim Denial to the claimant. Notices of Claim Denial shall be sent promptly but in no event later than 60 days following the Claims Deadline. The denial notice will indicate the reason or reasons for the denial. These would include, but not be limited to, not being admitted to the Jail following an arrest solely for a qualifying offense within the class period.
24. In order to object to the Claims Administrator’s determination that he is not a class member, a claimant must file a written appeal to the Claims Administrator postmarked no later than 15 days after the date of the mailing of the Notice of Claim Denial. He must include reliable written documentation, which need not be an official record, that shows that he is a class member, and he may also include a sworn written statement subject to the penalty of perjury. The Claims Administrator will consult with counsel for the parties and make a determination on each appeal no later than 30 days after the deadline for class members to file such appeals. The Claims Administrator will inform the class member in writing of its determination, and provide copies to all counsel within 30 days of such determination. Rulings by the Claims Administrator may be appealed directly to the Court
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within 15 days of the receipt of the notice from the Claims Administrator approving or denying the claim. There shall be no further right of appeal beyond review of the ruling of the Claims Administrator by the Court.
25. The Claims Administrator will send a Notice of Claim Approval (“Notice of Claim Approval”) to each approved claimant, absent objection, promptly but in no event later than 60 days after the Claims Deadline.
26. A claimant who used a different name upon admission to the Jail must present documentation establishing that he/she is the person referred to in Defendants’ records. VIII. EXPENSES, ATTORNEYS’ FEES AND COSTS
27. All administrative costs, including the Claims Administrator’s fees and expenses, will be paid from the settlement funds.
28. Plaintiffs’ litigation expenses will be paid from the settlement funds. 29. Class counsel will ask the Court to approve an attorney’s fee of 33⅓% of the settlement funds, an amount recommended by the named class representatives. 30. Plaintiffs' litigation expenses and attorney's fee will be calculated and paid within 30 days of entry of the Order approving this Agreement following the fairness hearing. Claims administration costs will be calculated and paid within 30 days of entry of the Order of Dismissal by the Court. In addition, any copy costs incurred by Defendants pursuant to the obligation described in ¶ 17 above will be itemized and submitted to the Claims Administrator and counsel for Plaintiffs prior to entry of the Order of Dismissal, and will also be paid within 30 days of entry of the Order of Dismissal. IX. DISTRIBUTION TO CLASS MEMBERS
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31. Named class representatives Kimberly Miracle (the first and originating plaintiff in this case) will receive $30,000.00, April Griffith $20,000.00, Earl Taylor $15,000.00, Jeffrey Fleenor $15,000.00, Richard Dailey $15,000.00, Keith Wilson $15,000.00, and James Scott $10,000.00, in full and final settlement of all their claims against Defendants as well as for their service as named class representatives, including but not limited to surrendering their anonymity, bringing suit, submitting to discovery, and participating in and authorizing the settlement of this class action as set forth herein, all in complete satisfaction and discharge of their duties as named class representatives. Their checks shall issue within 30 days of entry of the Order approving this Agreement following the fairness hearing.
32. Class members will receive payment from the settlement funds that remain after deducting attorneys’ fees, litigation expenses, expenses of claims administration and payments to class representatives.
33. The Claims Administrator will calculate the amount of money due each class member by providing one share for every class member with an approved claim. The Claims Administrator will divide the amount remaining in the settlement fund (after the payments made as provided above) by the number of shares to determine the amount each participating class member will receive. Class members will receive only one payment no matter how many times they were admitted into and/or searched while incarcerated at the Jail during the class period.
34. Payments to class members shall not exceed $1500.00 except for the seven named Plaintiffs as set forth in ¶ 31 above.
35. Each class member’s check will be made payable only in his or her name or,
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upon the death of a class member, to the personal representative of the deceased class member’s estate upon filing an affidavit in compliance with the applicable statutory procedure for collection of personal property by affidavit of the rightful heir. The check will be mailed to the class member at their mailing address. Any change of address request must be made in writing and must be signed by the claimant.
36. If a participating class member is confined in a prison, hospital, or other institution and has provided the address of such institution for payment, the settlement check will be sent to an appropriate institutional address unless the class member makes other acceptable arrangements in writing with the Claims Administrator. If a claimant’s check is returned and the Claims Administrator has no record of a forwarding address, the Claims Administrator, after consulting with counsel for the parties, shall have discretion to take reasonable steps to locate such claimant. X. POST-DISTRIBUTION ADMINISTRATION
37. Any settlement funds remaining after all settlement checks have been distributed and all costs, expenses and attorneys’ fees have been paid will be returned by the Claims Administrator to Defendants.
38. At the conclusion of the claims administration process, the Claims Administrator shall provide a full and complete report to the parties and the Court that will include: (a) a list of approved claimants and the amounts paid to each; (b) a list of individuals whose claims were rejected by the administrator and the reasons therefor; and (c) a detailed accounting of all expenses incurred by and fees of the Claims Administrator. XI. DECEASED CLASS MEMBERS
39. If a class member is deceased, a legally authorized representative may file a
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Settlement Claim Form on behalf of the estate. However, the representative must provide to the Claims Administrator the documentation required by ¶ 35 above, as well as a certified copy of the Probate Court order appointing the person as the authorized representative of the deceased class member prior to the claims’ deadline, or the claim will be denied. XII. RELEASE AND AGREEMENT TO DEFEND, INDEMNIFY AND HOLD
HARMLESS. 40. In consideration of payment of the settlement amount, Defendants will be released from all liability for the class members’ claims for all strip- searches that were part of this lawsuit including class members who do not file claims, except for any class members who requested exclusion and filed a claim within the statute of limitations. The parties have expressly agreed that the release of claims arising from the settlement includes all visual inspections, including without limitation visual body cavity inspections, that otherwise fall within the scope of the claims certified as a class action by the Court in this case. The parties also agree that all such claims against all of Defendants' employees and other agents are barred because the settlement expressly covers Defendants, its employees and agents. Class members will be afforded an opportunity for exclusion as provided for in Fed.R.Civ.P. 23(e)(3), and as specified in the Notice of Settlement which will be submitted to the Court for approval.
For Plaintiffs and the Plaintiff Class:

Date: May 23, 2008

/s/ Gregory A. Belzley____________________ Gregory A. Belzley DINSMORE & SHOHL LLP 1400 PNC PLAZA 500 West Jefferson Street Louisville, KY 40202
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Date: May 23, 2008

For Defendants:
/s/ David P. Bowles** signed with the permission of Mr. Bowles Robert T. Watson David P. Bowles LANDRUM & SHOUSE LLP 220 West Main Street, Suite 1900 Louisville, KY 40202-1395
/s/ Stacey A. Blankenship** signed with the permission of Ms. Blankenship Stacey A. Blankenship Denton & Keuler P.O. Box 929 Paducah, KY 42002-0929

14

 
 CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e0107of 10PPagaege1IDof#1:0104

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

[Filed Electronically]

KIMBERLY MIRACLE, JEFFREY

)

FLEENOR, RICHARD DAILY,

)

APRIL GRIFFITH, KEITH WILSON )

and EARL TAYLOR, Individually

)

and on behalf of all others

)

similarly situated,

)

)

PLAINTIFFS

)

)

v.

)

)

BULLITT COUNTY, KENTUCKY, et al., )

)

DEFENDANTS.

)

CIVIL ACTION NO. 3:05CV-130-C

FIRST AMENDED COMPLAINT

I. Introduction

1. Kimberly Miracle, Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson

and Earl Taylor, Plaintiffs, file this action in their individual capacity and on behalf of all

persons arrested for non-violent minor offenses who were required by Defendants to

remove their clothing for a visual body cavity search on admission to the Bullitt County

Detention Center (hereinafter “the Jail”) despite the absence of any reasonable,

individualized suspicion that they were carrying or concealing weapons or contraband.

This class of people includes all individuals who were so treated from March 3, 2004 to the

present.

2. Such searches have been regularly conducted by Defendants and there are

hundreds of members of this class. There are questions of law and fact in this case that

CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e0207of 10PPagaege2IDof#1:0105
are common to all members of this class. Plaintiffs’ claims are typical of those of their class, and they will fairly and adequately protect the interests of this class.
II. Jurisdiction and Venue 3. Plaintiffs, and all other similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. §1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States. Accordingly, this Court has jurisdiction of this case pursuant to the provisions of 28 U.S.C. §1331 and §1343. Plaintiffs and the other members of her class also seek declaratory and injunctive relief, as well as damages under the pendent jurisdiction of this Court for negligence, gross negligence and intentional infliction of emotional distress. As Bullitt County, Kentucky is the residence of all defendant parties to this action and the location of all acts pertinent to this suit, venue is proper in this Court.
III. Class Action 4. Plaintiffs bring this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. The class consists of all individuals arrested for non-violent minor offenses who, since March 3, 2004, were required to remove their clothing for a visual inspection of their naked bodies on admission to the Jail despite the absence of any reasonable, individualized suspicion that they were carrying or concealing weapons or contraband. 5. Plaintiffs will fairly and adequately protect the interests of all class members. They are members of the class and their claims are typical of the claims of all class members. Plaintiffs were offended at the treatment accorded them and the class members
2

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and will aggressively pursue the interests of the entire class. Plaintiffs’ interest in obtaining injunctive relief and actual and punitive damages for the violations of their constitutional rights and privileges are consistent with and not antagonistic of those of any other person within her class.
6. Given the circumstances of their search, as detailed below, Plaintiffs allege, on information and belief, that Defendants regularly require all persons arrested for nonviolent minor offenses to remove their clothing for at least a visual inspection of their naked bodies -- and in most instances for a visual body cavity search -- on admission to the Jail, even though there exists no reasonable grounds for believing that such individuals are carrying or concealing weapons or contraband. Such searches violate the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. §1983 and the clearly established law of this circuit set forth in Masters v. Crouch, 872 F.2d 1248 (6th Cir.), cert denied, 493 U.S. 977, 110 S.Ct. 503 (1989). The only question that remains to be resolved is whether Plaintiffs and the members of the class are entitled to declaratory and injunctive relief, or to an award of compensatory and punitive damages and, if so, the extent of such an award.
7. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It would be virtually impossible for all class members to intervene as parties-plaintiff in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.
3

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IV. Parties 8. Plaintiffs are all residents of the Commonwealth of Kentucky. 9. Defendant Bullitt County at all times mentioned herein, employed, was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Jail. 10. Defendant Danny Fackler is Jailer of Bullitt County, and as such, established policies formally or by custom for, and was responsible for the employment, training, supervision and conduct of, the officers and employees of the Jail.
V. Nature of Defendants' Conduct 11. Defendants, individually and in conspiracy with one another, engaged in the conduct described below under color of the law of the Commonwealth of Kentucky and Bullitt County. The offenses described below resulted from the failure of the state and county agencies and individuals to employ qualified persons for positions of authority, and/or to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of the citizens of the Commonwealth of Kentucky. Defendants' conduct was intentional or grossly negligent, or indicated active malice toward Plaintiffs and the class or at least a total and reckless disregard for and indifference to their constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiffs and the class are entitled to recover.
4

CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e0507of 10PPagaege5IDof#1:0108
VI. Facts 12. Plaintiff Kimberly Miracle was arrested on or about March 3, 2004 for nonviolent misdemeanor offenses. She was taken to the Jail where she was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that she was carrying or concealing weapons or contraband. 13. Plaintiff Earl Taylor was arrested on or about March 15, 2004 for a non-violent misdemeanor offense. He was taken to the Jail where he was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that he was carrying or concealing weapons or contraband. 14. Plaintiff Jeffrey Fleener was arrested on or about May 30, 2004 for a nonviolent misdemeanor offense. He was taken to the Jail where he was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that he was carrying or concealing weapons or contraband. 15. Plaintiff Richard Dailey was arrested on or about September 6, 2004 for nonviolent misdemeanor offenses. He was taken to the Jail where he was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that he was carrying or concealing weapons or contraband. 16. Plaintiff April Griffith was arrested on or about February 22, 2005 and July 13, 2005 for non-violent misdemeanor offense. On both occasions, she was taken to the Jail where she was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that she was carrying or concealing weapons or contraband.
5

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17. Plaintiff Keith Wilson was arrested on or about January 27, 2006 for a nonviolent misdemeanor offense. He was taken to the Jail where he was subjected to a visual body cavity search when Defendants had no reasonable, individualized suspicion that he was carrying or concealing weapons or contraband.
VII. The Law and Defendants' Policy 18. On April 18, 1989, the Sixth Circuit issued its opinion in Masters v. Crouch, supra, in which it held:
It was clearly established on October 21, 1986 … that a person charged with only a traffic violation or nonviolent minor offense may not be subjected to a strip-search unless there are reasonable grounds for believing that the particular person might be carrying or concealing weapons or other contraband. Id. at 1257. Like the Sixth Circuit, the courts have consistently held that a non-violent minor offense, in and of itself, does not give rise to sufficient institutional security concerns to justify strip-searches that have been described as "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). In this case, Plaintiffs were arrested for non-violent minor offenses. Neither their behavior nor their background gave Defendants any reasonable grounds for believing that they might be carrying or concealing weapons or other contraband. Under such circumstances, Defendants' requirement that Plaintiffs expose the most private parts of their physical person for a visual inspection was unconscionable, was an illegal strip/visual body cavity search by any definition, and was a flagrant violation of the clearly-established law.
6

CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e0707of 10PPagaege7IDof#1:0110
VIII. Causes of Action A. Count I
19. Paragraphs 1-18 above are incorporated herein by reference and made this Paragraph 19.
20. Plaintiffs' searches, described above, were part of a continuing pattern of misconduct and were the result of statutes, ordinances, regulations, policies, procedures, customs and practices of the Commonwealth of Kentucky and Bullitt County, either written or unwritten, that are systematically applied whenever an arrestee is admitted to or released from the Jail. Such practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for the constitutional and common law rights of the citizens of Kentucky, including Plaintiffs and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such practices.
21. As a result of the foregoing, Plaintiffs and their class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following rights and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983:
a. Their right to be secure in their person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments;
b. Their right to privacy in their person against unreasonable intrusions under the Fourth, Fifth, Ninth and Fourteenth Amendments;
c. Their right to the equal protection of the law secured by the Fourteenth Amendment; and
7

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d. Their right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments.
22. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' searches of Plaintiffs and the members of their class were intentional, wanton and malicious, and were indicative of Defendants' total and reckless disregard of, indifference to the rights of, and rise of harm to, Plaintiffs and the other members of the class.
B. Count II 23. Paragraphs 1-22 above are incorporated herein by reference and made this Paragraph 23. 24. Defendants have blatantly violated the provisions of KRS 441.025 and 441.055, and 501 KAR 3:120(3)(1)(b) and (c).
C. Count III 25. Paragraphs 1-24 above are incorporated herein by reference and made this Paragraph 25. 26. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiffs and the class severe mental and emotional distress.
D. Count IV 27. Paragraphs 1-26 above are incorporated herein by reference and made this Paragraph 26. 28. By virtue of the foregoing, Defendants were negligent, and grossly negligent, all to the damage of the Plaintiffs and the class.
8

CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e0907of 10PPagaege9IDof#1:0112
IX. Damages 29. Paragraphs 1-28 above are incorporated herein by reference and made this Paragraph 28. 30. Plaintiffs and the members of the class were unjustifiably and unconstitutionally strip-searched in a manner that generated tremendous and overwhelming embarrassment, humiliation, and mental and emotional distress. As a result, they have suffered, and are entitled to recover, actual damages. Furthermore, Defendants' violations of the constitutional and common law rights of the Plaintiffs and the class were cruel, malicious and evinced a total and reckless disregard for and indifference to those rights, entitling Plaintiffs and the class to recover punitive damages from Defendants in order to deter such conduct in the future.
X. Declaratory Judgment and Permanent Injunction 31. Paragraphs 1-30 above are incorporated herein by reference and made this Paragraph 30. 32. In addition to the foregoing, Plaintiffs and the class request that this Court issue a declaratory judgment deeming unconstitutional any and all statutes, ordinances, regulations, policies, procedures, customs or practices under which they were forced to expose their bodies for visual inspection, and further request that this Court permanently enjoin the Defendants from following or enforcing such statutes, ordinances, regulations, policies, procedures, customs or usages. WHEREFORE, Plaintiffs and the class they represent request (a) that this action proceed as a class action under Fed. R. Civ. P. 23 and (b) a trial by jury, and further request that they and all members of the class (c) be awarded actual and punitive
9

CasCea3se:035:-0c5v-0cv0-103001-3J0B-CJB-JCD-MJDMDocuDmoecunmt 3e1nt 2F8ile-2d 10/F2i4le/0d710P/1a1g/2e01007of 1P0aPgeag1e0IDof#1:0113

damages, (d) be granted the declaratory and injunctive relief requested herein, and (e) be

awarded their costs, attorney fees, pre- and post-judgment interest and all other relief to

which they are entitled under law or in equity.

Respectfully submitted,

s/ Gregory A. Belzley______________ Gregory A. Belzley Dinsmore & Shohl LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202 Telephone: (502) 540-2300 Facsimile: (502) 585-2207

Robert D. Walker, II, Esq. WALKER, VAUGHN & WALLACE, PLLC 7403 St. Andrews Church Road P.O. Box 9285 Louisville, KY 40209 Telephone: (502) 937-1944 Facsimile: (502) 937-1117

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Plaintiffs' First Amended Complaint was served this 11th day of October 2007, via CM/ECF, on the following:

Robert T. Watson David P. Bowles LANDRUM & SHOUSE LLP 220 West Main Street, Suite 1900 Louisville, KY 40202-1395

Walter A. Sholar Bullitt County Attorney 300 S. Buckman Street P.O. Box 1446 Shepherdsville, KY 40165

s/ Gregory A. Belzley__________ Co-Counsel for Plaintiff

106230v1 34160-1
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 Case 3:05-cv-00130-JBC-JDM Document 45 Filed 08/04/08 Page 1 of 2 PageID #: 219

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

CIVIL ACTION NO. 05-130-C

KIMBERLY MIRACLE, ET AL.

V.

ORDER

BULLITT COUNTY, KENTUCKY, ET AL.,

PLAINTIFF, DEFENDANTS.

* * * * * * * * * * *
A motion hearing was held before the undersigned on July 31, 2008, in Lexington. Gregory A. Belzley and Mark B. Wallace appeared on behalf of the plaintiffs. David P. Bowles and Stacey A. Blankenship appeared on behalf of the defendants. The proceedings were reported by Georgene Scrivner.
The court having heard from counsel for the parties, and being otherwise sufficiently advised,
IT IS ORDERED that Analytics Inc. is approved as the claims administrator in this matter.
IT IS FURTHER ORDERED that the listed counsel of record for the plaintiffs in this action are appointed as class counsel for the reasons stated on the record. In appointing class counsel, the court considered the following: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.
IT IS FURTHER ORDERED that the court, having requested identification of any agreement made in connection with the proposed settlement, and having been advised that there are none, finds that there are no other outside agreements.
IT IS FURTHER ORDERED that the motion for class certification is granted for reasons stated on the record. A written opinion will issue separately.
IT IS FURTHER ORDERED that the parties’ joint motion for preliminary approval of the settlement agreement [DE 40] is GRANTED for reasons stated on

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the record. A written opinion will issue separately. IT IS FURTHER ORDERED that the parties shall file the a motion for approval
of the final notice and claim form. The parties may request a hearing on the motion, to be held either in court or by telephone.
TIC: 1/25
Signed on August 4, 2008

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

CIVIL ACTION NO. 05-130-C

KIMBERLY MIRACLE, ET AL.

V.

MEMORANDUM OPINION AND ORDER

BULLITT COUNTY, KENTUCKY, ET AL.,

PLAINTIFF, DEFENDANTS.

* * * * * * * * * * * This matter is before the court upon a joint motion for preliminary approval of the settlement agreement (DE 40). The court, having reviewed the record and heard from counsel for the parties, and being otherwise sufficiently advised, will certify the matter as a class action for settlement purposes and preliminarily approve the settlement agreement. I. Procedural History On March 2, 2005, Kimberly Miracle filed this action in her individual capacity and on behalf of all others similarly situated, alleging that the defendants violated her constitutional rights. An amended complaint dated October 24, 2007, named additional plaintiffs in their individual capacities and on behalf of all others similarly situated. The representative plaintiffs thus include: Kimberly Miracle, Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson and Earl Taylor. The complaint states that the defendants required members of the class to remove their clothing for a visual inspection of their bodies when arrested for non-violent minor offenses, even though there existed no reasonable suspicion that they were

carrying or concealing weapons or contraband. The plaintiffs, individually and on behalf of all others similarly situated, seek damages under the Civil Rights Act of 1871, 42 U.S.C. §1983, for violations of the rights, privileges and immunities guaranteed them by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution.
This matter is brought as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Rule 23 sets forth certain requirements for the certification of a class action, and requires that any dismissal or compromise of the action must be approved by the court. The court must take the following steps to approve a class-action settlement: 1) preliminarily approve the proposed settlement, 2) direct that all interested persons are given notice, and 3) hold a hearing to determine whether the proposed settlement is fair, reasonable and adequate. See Williams v. Vukovich, 720 F.2d 909, 920-21 (6th Cir. 1983). The court held a hearing on July 31, 2008, regarding the grounds for certification of the class and to address certain issues surrounding the preliminary approval of the settlement. At the hearing, the court certified the matter as a class action and preliminarily approved the settlement agreement, stating that this written opinion would follow. The court will now certify the class for settlement purposes, preliminarily approve the proposed settlement agreement, direct the parties to file the proposed notice with the court for its approval, and schedule the fairness hearing.
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II. Certification of Class Action The parties’ proposed settlement agreement contemplates that the court
certify a class with the following definition: “a class consisting of all persons who were arrested for any qualifying non-violent, non-drug related misdemeanor offense, and were strip-searched at the Bullitt County Detention Center (“the Jail”) from March 2, 2004, to the present, when there existed no basis for a reasonable, individualized suspicion that they were carrying or concealing weapons or contraband.”1
The party moving to certify the class has the burden of proving that class certification is appropriate. In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996) (hereinafter “AMS”). In support of certification, the plaintiffs cite numerous cases where “substantially similar” classes were certified based on the requirements of Rule 23. See DE 44, at 3-4. However, the court must conduct a “rigorous analysis” of the elements of Rule 23 before certifying a class. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); see also Fed. R. Civ. P. 23. The requirements of Rule 23(a) and (b) must be satisfied before a court certifies a class for trial or for settlement-only purposes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). The standard is heightened when the certification is for the
1 The language in the settlement agreement is slightly different, but counsel for both parties agreed at the July 31, 2008, hearing that the phrase “all persons who allege that they were arrested” should be changed to “all persons who were arrested.” See Settlement Agreement, at 1, attached to the joint motion for preliminary approval (DE 40).
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purpose of settlement. See Int’l Union, United Auto., Aerospace, and Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 625 (6th Cir. 2007) (citing Amchem Prods., 521 U.S. at 620). Rule 23(a) sets forth four prerequisites for class certification: numerosity, commonality, typicality, and adequacy of representation. In addition, the plaintiff must show that the proposed class falls into one of the three categories described in Rule 23(b).
1. Rule 23(a) In general, the court finds that the parameters of the class definition sufficiently limit the class to ensure that all the requirements of Rule 23(a) are satisfied. The date listed in the definition was chosen based upon Kentucky’s statute of limitations for personal injury cases, and for 42 U.S.C. § 1983 cases. Thus, the March 2, 2004, date is one year before Ms. Miracle filed this action.
a. Numerosity In their amended complaint and representations before the court, the plaintiffs claim that there are hundreds of potential members in this class. “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980). “When class size reaches substantial proportions, however, the impracticability requirement is usually satisfied by the numbers alone.” AMS, 75 F.3d at 1079. The court finds that the class in this matter is so numerous that joinder of all members is impractical.
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In attempting to identify the class, the parties identified 5,177 people who could potentially fall within the class. They subsequently mailed questionnaires on February 1, 2007, to 5,177 individuals who had been admitted to the jail since the March 2, 2004, trigger date of the class. The questionnaires sought information from the addressees about the charges for which they were arrested and the manner in which they were searched on admission to the jail.2 Responses were received from 534 of the addressees, a response rate better than ten percent. After a screening process, during which the questionnaire responses and the defendants’ jail files were examined, the parties determined that approximately 120 complained of strip-searches under circumstances that fit within the class definition and that would show a violation of the constitutional rights of the responders to the questionnaire. Thus, the parties having identified approximately 120 people who complained of strip-searches that allegedly violate constitutional rights, the court finds that the numerosity requirement of Rule 23(a) is satisfied.
b. Commonality The court must find that there are questions of law or fact common to the class. Fed. R. Civ. P. 23(a). “The commonality test ‘is qualitative rather than quantitative[;] that is, there need be only a single issue common to all members of the class.’” AMS, 75 F.3d at 1080 (quoting 1 Herbert B. Newberg & Alba Conte,
2 Over 1,600 of those questionnaires were returned undeliverable. The court notes that it is anticipated that the notice to class members may recapture some of those 1,600 people.
5

Newberg on Class Actions, § 3.10, at 3-47 (3rd ed. 1992)). The claims of the representative plaintiffs and all other similarly situated are based on the same questions of law or fact, according to the allegations in the amended complaint.
The representative plaintiffs were arrested after March 2, 2004, for nonviolent misdemeanor offenses, were taken to the Bullitt County Detention Center, and were subjected to visual body cavity searches when the defendants had no reasonable, individualized suspicion that they were carrying or concealing weapons or contraband. The plaintiffs allege that the defendants regularly subject persons arrested for non-violent minor offenses to the same treatment. Those stripsearches violate the Constitution and the clearly established law of this circuit. See Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989). The legal theory, that the searches conducted by the defendants pursuant to a blanket policy or custom were unconstitutional, applies to all members of the class. There are questions common to each class member, such as whether the defendants had a policy, including an unwritten policy, to subject persons to strip-searches when those persons were in custody for non-violent minor offenses and there was no reasonable basis under the law for conducting those strip-searches. Thus, the court finds that there are questions of law and fact common to the members of the class.
c. Typicality The court must also find that the claims or defenses of the representative
6

parties are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a). “[A] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” AMS, 75 F.3d at 1083 (quoting 1 Newberg, supra, § 3.13, at 3-76).
In this matter the representative plaintiffs and the unnamed members of the class were allegedly arrested for non-violent minor offenses and strip-searched in violation of their constitutional rights. The amended complaint details the facts with respect to the individually named representatives, including their dates of arrest, that they were charged with non-violent minor offenses, and that the defendants subjected them to strip-searches without a reasonable basis for doing so. As discussed under the commonality element above, the legal theory under which the class would proceed is the same for each member, whether a representative or unnamed member of the class.
Additionally, the class definition ensures that all class members were at the same jail, during the same period of time, and were arrested for the same kind of offenses under circumstances that did not warrant a strip-search. The narrowing of the class definition ensures that the typicality requirement is satisfied. Thus, the court finds that the representatives’ claims are typical of the claims of the other class members.
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c. Adequacy of representation The court must find that the representative parties will fairly and adequately protect the interests of the class and that they have done so thus far. There are two criteria for determining this element: 1) the representatives must have common interests with the unnamed class members, and 2) it must appear that the representatives will vigorously prosecute the class action through qualified counsel. Senter v. Gen. Motors Corp., 532 F.2d 511, 524-25 (6th Cir. 1976). The amended complaint satisfies the adequacy requirement by stating that the plaintiffs are members of the class as defined and that their claims are typical of the claims of all class members. Specifically, the plaintiffs state that they were offended at the treatment accorded them and the class members, and that they will aggressively pursue the interests of the entire class. The amended complaint also claims that the plaintiffs’ interests in obtaining injunctive relief and actual and punitive damages for the violations of their constitutional rights and privileges are consistent with, and not antagonistic to, those of any other person within the class. The court finds that the representatives have common interests with the unnamed class members, as discussed under the commonality element above. Specifically, the representatives were subject to the same conduct by the defendants and their claims are based on the same legal theory. With respect to the vigorous prosecution of the case, Kimberly Miracle originated and pursued this
8

case alone for two-and-a-half years. The other representatives, who were added
after the 120 potential claimants were identified, participated, along with Ms.
Miracle, in two mediations, lengthy meetings and periodic telephone contact with
counsel, and then approved the settlement. Therefore, the representative parties
have thus far fairly and adequately protected the interests of the class, and will
continue to do so.
2. Rule 23(b)
The class must additionally meet one of the three criteria in Rule 23(b). The
court finds that this class meets the criteria in Rule 23(b)(3), which requires that
“the questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.” Fed.
R. Civ. P. 23(b)(3). The court again finds that the plaintiffs have demonstrated the
commonality of the class members’ claims and interests. The parties have not
presented issues on which the interests of the class members differ and the court finds that their common issues predominate over any such differing interests.3
3 The reasonableness of any search is an individualized defense, and thus is not common to all class members. The court notes that the exact circumstances surrounding the search of each class member may differ, especially with respect to whether the defendants had a reasonable basis for believing that the arrestee was carrying or concealing weapons or contraband. However, the plaintiffs allege that the defendants were acting under an unwritten policy to search everyone and thus not conducting an individualized assessment to determine whether to conduct a strip-search. The court also notes that the proposed settlement agreement sets forth a mechanism for resolving this question with respect to each individual, and thus the common issues among the class are still predominant over this fact-
9

Additionally, the court finds that the class definition, narrowly limited as it is, ensures that this element of Rule 23(b)(3) is satisfied.
Further, a class action is a superior method for resolving the dispute. A multiplicity of suits, with their consequent burden on the court and the defendants, should be avoided. It would be nearly impossible for all of the class members to intervene as party plaintiffs in this action. The class action mechanism is an efficient and fair way to adjudicate the claims presented here. Thus, the class meets the Rule 23(b)(3) criteria.
Accordingly, the court finds that the plaintiffs, in requesting certification of the class for settlement purposes, have satisfied their burden to prove that the class meets the requirements of Rule 23. III. Preliminary Approval of Settlement Agreement
The preliminary approval stage of the litigation requires the court to determine whether the settlement is preliminarily fair, reasonable, and adequate, but does not require the court to review the merits of the case. “Preliminary approval of a proposed settlement is based upon the court’s familiarity with the issues and evidence, as well as the arms-length nature of the negotiations prior to the proposed settlement, ensuring that the proposed settlement is not illegal or collusive.” In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366,
specific defense. Additionally, considering the method outlined in the settlement agreement for resolving this question, including the claimant’s right to appeal a denial based on this defense, the class action remains the most efficient and effective manner of resolving the dispute.
10

370 (S.D. Ohio 1990) (citing cases). “Once preliminary approval has been granted,
a class action settlement is presumptively reasonable, and an objecting class
member must overcome a heavy burden to prove that the settlement is
unreasonable.” Levell v. Monsanto Research Corp., 191 F.R.D. 543, 550 (S.D.
Ohio 2000) (citing Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983);
Bronson v. Board of Education, 604 F. Supp. 68, 71 (S.D. Ohio 1984)); see also In
re Dun & Bradstreet, 130 F.R.D. at 370 (citing cases).
“Fairness calls for a comparative analysis of the treatment of class members
vis-a-vis each other and vis-a-vis similar individuals with similar claims who are not
in the class.” Federal Judicial Center, Manual for Complex Litigation 315 (4th ed.
2004).
If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment to class representatives or of segments of the class, or excessive compensation for attorneys, and appears to fall within the range of possible approval, the court should direct that notice under Rule 23(e) be given to the class members of a formal fairness hearing, at which arguments and evidence may be presented in support of and in opposition to the settlement.
Id. at 236-37. The court must determine whether the settlement agreement is
within the range of possible approval.
In response to the joint motion for preliminary approval of the settlement agreement, the court requested supplemental briefing4 and scheduled a hearing on
4 The parties were directed to address the following concerns of the court regarding the fairness, reasonableness, and adequacy of the settlement: 1) the treatment of class representatives compared with the treatment of remaining class
11

the motion.5 The parties filed a joint response to the court’s order, addressing each
of the court’s concerns in turn. See DE 44. At the hearing on July 31, 2008, the
court requested that the parties present further information on only three of the
topics because the parties’ brief sufficiently addressed the other issues. The three
issues addressed in further detail at the hearing were 1) the treatment of class
representatives compared with the treatment of remaining class members; 2) the
level of compensation to the class members, specifically the $1,500 cap; and 3)
the provision allowing only one payment per class member no matter how many
times each was allegedly strip-searched.
Counsel for the parties presented information at the hearing to demonstrate
members; 2) the level of compensation to the class members and whether it is inadequate; 3) the provision allowing only one payment per class member no matter how many times they were admitted into the facility and/or searched while incarcerated; 4) the total number of potential class members, including the extent to which they have been identified; 5) imposing strict eligibility conditions and/or cumbersome claims procedures (especially considering that the unclaimed portions of the fund will revert to the defendants); 6) reversion of the settlement funds to the defendants; and 7) treatment of class members filing late claims and a possible reserve of funds for such late claims. DE 42.
5 A hearing should be held prior to the court’s preliminary approval and determination of whether the proposed settlement is illegal or tainted with collusion. Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983); Bronson v. Board of Education, 604 F. Supp. 68, 71 (S.D. Ohio 1984). “Review of a proposed class action settlement generally involves two hearings. First, counsel submit the proposed terms of settlement and the judge makes a preliminary fairness evaluation. . . . If the case is presented for both class certification and settlement approval, the certification hearing and preliminary fairness evaluation can usually be combined.” Federal Judicial Center, Manual for Complex Litigation 320-21 (4th ed. 2004); see also In re Inter-Op Hip Prosthesis Liability Litigation, 204 F.R.D. 330, 337-38 (N.D. Ohio 2001).
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the fairness of the proposed settlement. The court finds, based on the representations of counsel, that the twenty-to-one ratio between the award to Ms. Miracle and those to the unnamed class members is not a cause for concern. The information presented to the court regarding other class-action settlements in stripsearch cases shows that the settlements range from very small to very large and thus there is not a good guide for this settlement. As the first class representative, Ms. Miracle was the only one subjected to a deposition and other discovery, and she was the subject of the media coverage. After hearing from the parties, the court finds nothing unreasonable regarding the settlement payment ratios, and the court finds that the ratios are fair, reasonable, and adequate.
With regard to the absolute cap on the amount of the settlement payments to unnamed class members, the court finds that this is also reasonable based on the representations of the parties. In this case, unlike some other strip-search class actions where settlement payments were larger, there was no written, blanket policy to strip-search every person admitted to the jail, and there were no exigent circumstances. Thus, the parties would have had to try liability to a jury except for the settlement. The defendants conducted a mock trial in front of three separate juries that all returned verdicts for the defendants. This uncertainty of the outcome of the litigation makes it more reasonable for the plaintiffs to accept the settlement offer from the defendants. Additionally, the plaintiffs referred to the difficult economic times and their belief that it was less of a gamble for the plaintiffs to
13

accept this amount rather than attempt to get the uncertain amount that may result from a trial. Finally, the cap was approved by the class representatives, who found it reasonable when they approved the settlement agreement.
The final issue the court requested that the parties address at the hearing was the one-time-award limitation that allows a class member to recover only once, regardless of the number of violations. Counsel for the plaintiffs has experience with these types of actions, including settlements where payments were given for more than one violation. Based on counsel’s representations, providing payments for each instance where a claimant’s rights were violated complicates the administration of the class, increases the expenses of administration, and prolongs the process. The court agrees, and finds that the advantages of providing a process for multiple recoveries do not outweigh the prejudice to the class rights that would result from the complications and delay.
After careful consideration, the court concludes that there are no substantial grounds to doubt the preliminary fairness, reasonableness, or adequacy of the proposed settlement agreement, and it will grant preliminary approval.
Accordingly, IT IS ORDERED that this matter is CERTIFIED as a class action for settlement purposes. IT IS FURTHER ORDERED that the parties’ proposed settlement agreement is PRELIMINARILY APPROVED.
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IT IS FURTHER ORDERED that the parties are DIRECTED to file the proposed Notice of Settlement and Settlement Claim Form with the court by August 19, 2008.
IT IS FURTHER ORDERED that a fairness hearing pursuant to Fed. R. Civ. P. 23(e)(2) is SCHEDULED for November 17, 2008, at 3:00 p.m.
Signed on August 14, 2008
15

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

CIVIL ACTION NO. 05-130-C

KIMBERLY MIRACLE, ET AL.

V.

MEMORANDUM OPINION AND ORDER

BULLITT COUNTY, KENTUCKY, ET AL.,

PLAINTIFF, DEFENDANTS.

* * * * * * * * * * * On November 17, 2008, this Court conducted a Fairness Hearing in order to assess whether the settlement reached by the parties in this litigation is fair, reasonable, adequate, and should be approved. Such hearing having been held, the Court finds as follows: 1. This settlement was mediated by Judge Tom McDonald, an experienced mediator and former judge who knows the obligations of the Court in overseeing class action settlements of this kind. As a consequence of their experience in prior strip-search class action cases, counsel for the parties had not only a thorough understanding of the law and facts bearing on this litigation, but had researched the likely impact of those facts on a jury were this case not settled. 2. The settlement in this case was reached only after numerous, private, arms-length negotiations between the parties, and after two settlement conferences mediated by Judge McDonald, in which each side repeatedly argued its position and argued the risks the other would bear were the case not settled. The strengths and

weaknesses of the case on both sides were thoroughly researched, explored through discovery, and argued in settlement. There is no question but that counsel had sufficient information to arrive at an informed evaluation on which this settlement is based.
3. This class action covers the period from March 2, 2004 to the present. Plaintiffs claimed that the Bullitt County Detention Center ("the Jail") had in place a policy which required that all persons, even persons arrested for minor offenses, be strip-searched before their admission to the Jail's general population. The Jail, however, had in place a written policy which Defendants claimed prohibited the strip-searches of persons arrested for minor offenses on admission to the Jail unless there existed reasonable grounds for believing that such arrestees were carrying or concealing weapons or contraband.
4. Liability was thus a vigorously contested issue in this case, unlike prior strip-search class action cases in Kentucky in which the defendants' unlawful conduct was actually directed by a written policy of the jail in issue. It was unclear how many Plaintiffs would be willing to surrender their anonymity and bear the inconvenience of testifying at trial about an incident that many might consider personal and embarrassing. Those that chose to testify would then be presented with the challenge of communicating to the jury their recollection of incidents that may have occurred more than three and one-half years ago. Were Plaintiffs to prevail on the issue of liability, Plaintiffs would likely have then had to endure a
2

second series of trials, in which each Plaintiff's damages would likely be determined separately, and each Plaintiff would be confronted with the challenge of communicating to the jury the depth of the intangible damages -- the humiliation, shame and distress -- they sustained as a consequence of their strip-search. Even were these damages effectively communicated to the jury, it was likely that jury verdicts would vary greatly in amount. While a jury could award damages in excess of the sum a claimant might receive under this settlement, there was as great a chance that the jury might award significantly less, particular to those who have a lengthy criminal history. Throughout the litigation, the question would remain whether jurors would be predisposed to believe law enforcement officials over other citizens, particularly citizens with a criminal record. Counsel for Defendants were experienced litigators and would continue to provide a vigorous defense against all claims.
5. Defendants were unwilling voluntarily to pay more to settle this case. Pushing on to trial would have significantly delayed Plaintiffs' recovery, if any. Had trials eventually resulted in even greater total liability for the County, Plaintiffs would have been confronted with the additional delay of appeals, and depending on future circumstances, the additional risk of recoverability of the judgment.
6. Class members under the settlement are divided into two groups: (a) the named class representatives, who surrendered their anonymity and spearheaded this litigation throughout its course; and (b) the unnamed class members. The
3

settlement provides that the named class representatives will divide among themselves the sum of $120,000.00. Named class representatives, depending upon their length in service, will receive between $10,000.00 and $30,000.00 each. The parties have previously provided the Court an Excel spreadsheet showing 32 prior strip-search class action settlements. That spreadsheet shows that amounts typically paid named class representatives, in cases in which it can be determined, range between $10,000.00 and $25,000.00.
7. This is all the named class representatives will receive -- they will not be entitled to any additional payment under the terms of the Settlement Agreement proposed to the Court.
8. Not enough can be said for individual citizens, with no formal legal training, who believe their constitutional rights have been violated, exercise the initiative of contacting counsel, and then agree to surrender their anonymity and be named as plaintiffs in a civil rights case that becomes a matter of public record. The named class representatives participated in two mediations of this case, numerous meetings with counsel and periodic contact via telephone. They have honorably discharged their responsibilities as named class representatives, and each approved the settlement that has now been tendered to the Court.
9. The Court should encourage citizens to make the sacrifices and accept the responsibilities willingly undertaken and faithfully discharged by the named class representatives in this case. The Court has compared these amounts to
4

settlements in comparable cases, and has found them reasonable, particularly given the named class representatives' numerous meetings with counsel and their attendance at two separate mediations, the faithful discharge of their duties, and the significance of this case, the uncertainty of its outcome, and the ultimate result.
10. Unnamed class members with qualifying claims will receive a payment not to exceed $1500 each. This amount compares very favorably even to settlements in which liability was not an issue.
11. Defendants were unwilling to agree to caps any higher than these. The named class representatives had to choose whether to accept such caps, or reject such caps, scuttle the settlement, and proceed to trial with all the delay inherent in such a process, not to mention the ever-present risk of non-recovery. Given the hard financial realities presently confronting many potential claimants, the named class representatives decided to accept the caps and tender this settlement for the consideration of the class. As previously noted, these caps nonetheless compare very favorably even to settlements in which liability was not an issue.
12. Class members will only recover for one entry search, even though they may have been subjected to multiple entry searches. However, allowing class members to recover for searches following multiple arrests would substantially complicate and increase the expense of class administration, thus reducing that portion of the settlement fund available to pay the claims of unnamed class
5

members. The Court thus finds this provision of the settlement to be fair and reasonable.
13. Funds will revert to Defendants only if -- after all payments contemplated by the settlement, including the maximum approved claimants can receive under the terms of the settlement -- there remain any funds in the settlement account. As a consequence, the reversion provision of the proposed Settlement Agreement in no way infringes upon the amount, fairness or reasonableness of what will be paid to qualified claimants. Moreover, as with the per claim cap, reversion was a non-negotiable condition of settlement for Defendants, and reflected a responsible effort on Defendants' part given public funding of the settlement amount.
14. No amount of the settlement fund will be set aside for late claims. Establishing such a reserve would decrease the sums paid to qualified claimants if the settlement fund would otherwise be exhausted by payment of approved claims. In addition, a reserve would necessarily raise thorny issues of the amount of the appropriate set-aside, the appropriate grace period to allow for late claims, disparities in treatment of claimants, and what should be done in the event the amount set aside is too much or too little. These issues would unnecessarily complicate an otherwise straightforward settlement process, and would increase claims administration expense, thus reducing the recovery of approved claimants.
15. Plaintiffs' counsel are seeking one-third of the settlement fund of
6

$800,000.00, or $266,666.67, in compensation for their work in this case. Greg Belzley, lead counsel for the class, is an experienced litigator and a partner at Dinsmore & Shohl LLP. He first became involved in strip-search litigation with the filing of Masters v. Crouch, 872 F.2d 1248 (6th Cir.), cert. denied, 493 U.S. 977 (1989). He has since been lead counsel for plaintiffs in five strip-search class actions, three of which have previously been settled. This case is one of two strip-search class actions now pending in Kentucky in which Mr. Belzley is lead counsel for Plaintiffs. Mr. Belzley has argued numerous strip-search appeals before the First and Sixth Circuits, including an en banc proceeding before the First Circuit. Mr. Belzley is highly experienced in the law, litigation and settlement of strip-search class actions. Robert Walker is also an experienced litigator, and a partner at Walker, Vaughn & Wallace PLLC. He and Mr. Belzley and their respective firms shared the load in this case.
16. This Court has observed the conduct of these counsel throughout this litigation. The record reflects that they have skillfully, effectively and zealously advocated the position of the class throughout these proceedings, and have achieved a fair and reasonable result for their clients. Civil rights and class action litigation both involve complex issues of law and procedure. Plaintiffs' counsel bore all fees and expenses during this litigation, and bore all risk of loss had Plaintiffs not prevailed. The named class representatives each executed contingency fee agreements with Plaintiffs' counsel in which they consented to give their counsel as
7

much as 40% of the ultimate recovery. They have unanimously approved Plaintiffs' counsel's request for one-third of the settlement fund as their fee, and the Court finds that such approval was voluntarily given and that the fee is reasonable.
17. The notice of settlement and claim form were negotiated by the parties with input from the Court, and were ultimately approved by the Court. The notice of settlement is simple and straightforward, as is the proof of claim form. The parties have created a claims process that can be understood and administered by the claimants themselves, regardless of their socio-economic or educational background. Approved claimants will receive a substantial settlement simply by completing a proof of claim form and mailing it back to the Claims Administrator for verification and approval. Each claimant whose claim is rejected will receive a letter explaining why the claim was rejected, and will be provided the opportunity of an appeal first to the Claims Administrator, and then to this Court. There was no evidence at the hearing that claimants do not understand the terms of the settlement, find the proof of claim form confusing or hard to complete, or do not understand the process by which they may assert a claim for recovery of a portion of the settlement.
18. 4,935 notices have been mailed to potential claimants explaining the terms of the settlement and detailing the method by which claimants could file objections. No objections to the terms of the settlement discussed above were
8

filed prior to the hearing, and only one person appeared at the hearing to object, and the Court regards this fact as additional evidence establishing the fairness, reasonableness and adequacy of the settlement under review.
19. The Claims Administrator, Analytics, Inc., is continuing to seek potential claimants for whom it has no address or has a bad address, and mail notice as soon as a new address is found. In addition, all persons who contacted Plaintiffs' counsel or the Claims Administrator to advise of their potential claim were also mailed claim forms. Notice of the settlement will be published in the coming weeks in newspapers generally circulated in Bullitt County, and claimants have until February 17, 2009 -- ample time -- in which to file their claims.
20. One unnamed class member, Mr. Lavey, appeared at the fairness hearing and objected to the settlement. He stated that it was unfair to allow only one payment per class member no matter how many times that class member’s constitutional rights were violated by being strip-searched upon entry to the detention center. To the extent that the court addressed this issue during the preliminary approval of the settlement, those findings are reaffirmed. The court additionally finds that there are two factors to be weighed – precision versus sufficiency. On the one hand, compensating a claimant for every single constitutional violation precisely – thus the concept of precision – versus on the other hand, how much is enough to establish that there was a constitutional violation and to create a corrective action – thus the concept of sufficiency. The
9

purpose here is not to pay people money, but to recognize that there are violations of constitutional rights and to provide a corrective function. This was accomplished through several aspects of the settlement. First, the parties agreed on a cap per claimant that was premised on a one-search limit. Second, the settlement addresses the class as a whole and not merely individuals. Third, the administrative process is made more complex and more costly if the one-search limit is not applied. Fourth, the delay will be significant if there are administrative and factual disputes over multiple searches. Fifth, there comes a point at which, instead of remedying a constitutional violation and trying to correct the facility’s process, the settlement would begin to reward people for multiple arrests. The line on this last aspect is adequately drawn by the one-search limit. Additionally, some of the named class representatives were victims of multiple entry strip-searches. Given all the factors just enumerated, and given this tension between the notions of precision and sufficiency, the settlement adequately strikes the balance. Finding that the settlement’s provision allowing for only one recovery per class member is fair, reasonable and adequate, the court overrules the objection.
For all the reasons set forth above, the Court finds that the settlement in this litigation is fair, reasonable and adequate under the circumstances, and that the interests of the class as a whole are better served by this settlement instead of the pursuit of this litigation through trial. By separate Judgment, claims of all class members who have not made a timely request to be excluded from the class will be
10

dismissed with prejudice. Accordingly, IT IS ORDERED that the class action settlement is APPROVED as fair,
reasonable, and adequate in accordance with Rule 23 of the Federal Rules of Civil Procedure.
Signed on November 19, 2008
11

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

CIVIL ACTION NO. 05-130-C

KIMBERLY MIRACLE, ET AL.,

PLAINTIFFS,

V.

MEMORANDUM OPINION AND ORDER

BULLITT COUNTY, KENTUCKY, ET AL.,

DEFENDANTS.

* * * * * * * * * * *

This matter is before the court upon the joint status report of the parties (R.

63). Two claimants, John P. Burk and Todd Mettling, Jr., have appealed the denial

of their claims (R. 59, 60). The court will affirm the decisions of the claims

administrator and deny their claims because the claimants do not qualify as

members of the class.

I. John P. Burk

The claimant John P. Burk admits that he was arrested for public intoxication

and possession of a controlled substance, “zanax [sic],” in 2004 or 2005. He was

strip-searched and inducted into the Bullitt County Detention Center. Appealing the

denial of his claim, Burk contends that because he was not arrested for a violent

offense and was not convicted of the drug-related offense, his strip-search was

unlawful, and he deserves compensation. See R. 59, 61.

In this suit, the class consists of “all persons who were arrested for any

qualifying non-violent, non-drug related misdemeanor offense, and were strip-

searched at the Bullitt County Detention Center (“the Jail”) from March 2, 2004,

to the present, when there existed no basis for a reasonable, individualized suspicion that they were carrying or concealing weapons or contraband.” R. 47. As he admits, Burk was arrested, in part, for a drug-related misdemeanor. It is immaterial to the legality of the strip-search at the Jail whether he was subsequently convicted or acquitted of the drug-related misdemeanor, or whether that charge was dismissed. Because he was booked on a drug-related charge, John P. Burk does not qualify to be a member of the class, and his claim must be denied. II. Todd Mettling, Jr.
The claimant Todd Mettling, Jr. was twice inducted into the Jail during the subject period: once in December 2005, and again in February 2008. See R. 62. Appealing the denial of his claim, he argues that both strip-searches were illegal.
Mettling, Jr.’s arrest in December 2005 was for reckless driving, driving under the influence (4th offense), fleeing (1st degree), trafficking in marijuana (1st offense), possession of drug paraphernalia (1st offense), possession of a controlled substance, and tampering with physical evidence. See id. Because most of these offenses are felonies,1 and the class of plaintiffs in this suit includes only those charged with misdemeanors, the strip-search of Mettling, Jr. in December 2005 does not place him in the class involved in the action.
In February 2008, Mettling, Jr. was arrested again, this time for a variety of
1See, e.g., Ky. Rev. Stat. Ann. §§ 520.020, 524.100 (2009). 2

traffic offenses, all misdemeanors.2 He was booked in the Jail and underwent a strip-search, which he claims was unlawful.
Routine strip-searching of pre-trial detainees is not a per se violation of the Fourth Amendment prohibition against unreasonable searches and seizures. See Mills v. City of Barbourville, 389 F.3d 568, 578 (6th Cir. 2004) (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Yet “a strip-search of a person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband, is unreasonable.” Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989). By February 2008, however, Mettling, Jr. had a history of arrests for drug-related and other felonies, including but not limited to his arrest and booking in the Jail in December 2005.3 Whether or not the officials at the Jail in February 2008 remembered or knew about the December 2005 arrest, recognized the defendant personally, intended Mettling, Jr.
2Bullitt County records indicate that Mettling, Jr. was charged with failure to wear seat belts, reckless driving, driving on license suspended due to a previous DUI charge (1st offense), no/expired registration plates, no/expired registration receipt, failure of non-owner operator to maintain required insurance (1st offense), and operating on a suspended/revoked operators license. See R. 62.
3Before 2005, Mettling, Jr. was convicted of multiple crimes, including operating a motor vehicle under the influence of alcohol or drugs, probation violation, public intoxication, and identity theft. His record also reveals drug-related charges in 2006 which were not discussed by the parties, but lend further weight to “individualized, reasonable suspicion” present in 2008. See R. 60.
3

to be intermingled in the general population of the Jail,4 or strip-searched him as a matter of routine, “institutional convenience,”5 Mettling, Jr. had a “history that indicat[ed] possession or manufacturing of contraband.”6 Mettling Jr.’s criminal background, which included charges of possessing and trafficking drugs, was a basis for “a reasonable, individualized suspicion” that he was “carrying or concealing...contraband.” R. 47. Therefore, concerning both the December 2005 and February 2008 strip-searches, Todd Mettling, Jr. falls outside the definition of the class in this suit. Accordingly,
IT IS ORDERED that the decisions of the claims administrator are AFFIRMED and the claims of John P. Burk and Todd Mettling, Jr. are DENIED.
IT IS FURTHER ORDERED that within fifteen (15) days from the date of entry of this order, the parties shall file a joint status report advising whether all claims can be dismissed, and whether they should be dismissed with or without prejudice.
Signed on July 24, 2009
4See generally Masters, 872 F.2d at 1254-55 (discussing intermingling in the balancing of privacy interests with institutional security).
5Id. at 1254 (citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)).
6United States v. Warfield, 2006 WL 3193707, *2 (W.D. Ky. 2006). 4

 
 Case 3:05-cv-00130-JBC-JDM Document 70 Filed 10/15/09 Page 1 of 1 PageID #: 398

117515

ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
 WESTERJ~ DISTRICT OF KENTUCKY

LOUISVILLE DIVISION
 Case No. 3:05-CV-00130-JBC-JDM


KIMBERLY MIRACLE, et. al.

PLAINTIFFS

v.

FINAL ORDER AND JUDGMENT

BULLITT COUNTY, KENTUCKY, et. al.

DEFENDANTS

*** *** *** *** ***
The parties having filed a joint report, stating that this matter is now resolved, with all

approved claims having been paid; and the Court now being otherwise sufficiently advised, IT

IS HEREBY ORDERED AND ADJUDGED as follows:

1. This class action and all claims against the settling Defendants, including Jailer

Danny Fackler, in his individual capacity and their insurers, are hereby dismissed

with prejudice;

2. All class members who did not make a timely request to be excluded from the class

are barred and enjoined from commencing and/or prosecuting any claim or action

against the Defendants relating to the claims alleged in the Complaint filed herein;

3. All funds remaining in the settlement fund shall be disbursed within thirty (30) days

of entry of this Judgment;

4. This is a final judgment, there being no just cause for delay of the entry of this final

1k.. judgment.

This the

I~

day of October, 2009.

cI!r -­ ~ J ~I~ FER B~FMA~~ leT JUDGE

 
 Case: 3:05-cv-130 As of: 06/30/2013 09:02 PM EDT 1 of 8
CASREF,CLASS,CLOSED
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:05−cv−00130−JBC−JDM

Miracle v. Bullitt County, Kentucky et al Assigned to: Judge Jennifer B. Coffman Referred to: Magistrate Judge James D. Moyer
Magistrate Judge James D. Moyer (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/02/2005 Date Terminated: 10/15/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kimberly Miracle Individually and on behalf of all others similarly situated

represented by E. Liddell Vaughn Anderson Vaughn &Allen PLLC 517 W. Ormsby Avenue Louisville, KY 40203 502−637−3335 Fax: 502−637−2774 Email: lv@avaattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Belzley P.O. Box 278 Prospect, KY 40059 502−292−2452 Fax: 502−494−6186 Email: gbelzley@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Wallace Walker, Vaughn &Wallace, PLLC 7403 St. Andrews Church Road P.O. Box 9285 Louisville, KY 40214 502−937−1125 Fax: 502−937−1117 Email: mwallace@walkerwallacelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Walker , II Walker, Vaughn &Wallace, PLLC 7403 St. Andrews Church Road P.O. Box 9285 Louisville, KY 40214 502−937−1125 Fax: 502−937−1117 Email: rwalker@walkerwallacelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jeffrey Fleenor

represented by Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Robert D. Walker , II (See above for address) ATTORNEY TO BE NOTICED

Case: 3:05-cv-130 As of: 06/30/2013 09:02 PM EDT 2 of 8

Plaintiff Richard Daily

represented by Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Robert D. Walker , II (See above for address) ATTORNEY TO BE NOTICED

Plaintiff April Griffith

represented by Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Robert D. Walker , II (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Keith Wilson

represented by Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Robert D. Walker , II (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Earl Taylor

represented by Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Robert D. Walker , II (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Bullitt County, Kentucky

represented by David P. Bowles Landrum &Shouse, LLP 220 W. Main Street, Suite 1900 Louisville, KY 40202 502−589−7616 Fax: 502−589−2119 Email: kywd_ecf_deadletter@kywd.uscourts.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Watson McBrayer, McGinnis, Leslie &Kirkland, PLLC − Louisville 9300 Shelbyville Road, Suite 210 Louisville, KY 40222 502−327−5400 Fax: 502−327−5444 Email: rwatson@mmlk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter A. Sholar

Case: 3:05-cv-130 As of: 06/30/2013 09:02 PM EDT 3 of 8

Bullitt County Attorney's Office P.O. Box 1446 Shepherdsville, KY 40165 502−543−1505 Fax: 502−921−4538 Email: wsholar@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas R. Moore Denton &Keuler, LLP 555 Jefferson Street, Suite 301 Paducah, KY 42001 270−443−8253 Fax: 270−442−6000 Email: dmoore@dklaw.com ATTORNEY TO BE NOTICED

Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Stacey A. Blankenship Denton &Keuler, LLP 555 Jefferson Street, Suite 301 Paducah, KY 42001 270−443−8253 Fax: 270−442−6000 Email: sblankenship@dklaw.com ATTORNEY TO BE NOTICED

Defendant
Danny Fackler in his capacity as the Bullitt County Jailer

represented by David P. Bowles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert T. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Walter A. Sholar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas R. Moore (See above for address) ATTORNEY TO BE NOTICED

Gregory A. Belzley (See above for address) ATTORNEY TO BE NOTICED

Stacey A. Blankenship (See above for address) ATTORNEY TO BE NOTICED

Claimant John P. Burk

represented by John P. Burk PRO SE

Case: 3:05-cv-130 As of: 06/30/2013 09:02 PM EDT 4 of 8

Claimant Todd Mettling, Jr.

represented by Gregory J. Bailey 701 W. Jefferson Street Louisville, KY 40202 502−583−1007 ATTORNEY TO BE NOTICED

Date Filed 03/02/2005 03/02/2005 03/10/2005 03/15/2005 03/15/2005 04/04/2005 04/05/2005 04/19/2005 05/06/2005 05/11/2005
05/11/2005 09/06/2005
09/13/2005 09/14/2005
11/17/2005

# Docket Text
1 COMPLAINT against Bullitt County, Kentucky, Danny Fackler Summons(es) issued (Filing fee $ 250, Receipt #1856), filed by Kimberly Miracle. (Attachments: # 1 Cover Sheet)(SJS) (Entered: 03/03/2005)
2 Case Assignment (Random Selection): Case Assigned to Judge Jennifer B. Coffman. Magistrate designation: Judge James D. Moyer. (SJS) (Entered: 03/03/2005)
3 SUMMONS Returned Executed by Larry Stewart Bullitt County, Kentucky served on 3/8/2005, answer due 3/28/2005. (SJS) (Entered: 03/10/2005)
4 SUMMONS Returned Executed Danny Fackler served on 3/4/2005, answer due 3/24/2005. (SJS) (Entered: 03/15/2005)
5 SUMMONS Returned Executed Bullitt County, Kentucky served on 3/4/2005, answer due 3/24/2005. (SJS) (Entered: 03/15/2005)
6 ANSWER to Complaint with Jury Demand by Bullitt County, Kentucky, Danny Fackler.(Bowles, David) (Entered: 04/04/2005)
7 ORDER by Jennifer B. Coffman on 4/5/05; Rule 26(a)(1) Disclosure due by 5/6/2005. Rule 26 Meeting Report due by 5/16/2005. Counsel shall comply with remainder of Order as set forth.cc:Counsel(SJS) (Entered: 04/05/2005)
8 REPORT of Rule 26(f) Planning Meeting by Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (SJS) (Entered: 04/20/2005)
9 NOTICE of Appearance by Gregory A. Belzley on behalf of Kimberly Miracle (TAC) (Entered: 05/06/2005)
10 SCHEDULING ORDER by Jennifer B. Coffman on 5/10/05; Amended Pleadings due by 1/15/2006. Discovery due by 5/16/2006. Dispositive Motions due by 7/1/2006. Expert Witness (Defendant) due by 4/16/2006. Expert Witness (Plaintiff) due by 3/16/2006. Pretrial Conference set for 10/12/2006 01:30 PM before Judge Jennifer B. Coffman. Joinder of Parties due by 1/15/2006. Jury Trial set for 11/20/2006 10:00 AM in Courtroom before Judge Jennifer B. Coffman. Anticipated length of trial is 7 days. Telephonic Status Conference set for 11/17/2005 10:00 AM before Judge Jennifer B. Coffman. Counsel shall comply with remainder of Order as set forth.cc:Counsel(SJS) (Entered: 05/11/2005)
CASE REFERRED to Magistrate Judge James D. Moyer. (SJS) (Entered: 05/11/2005)
11 ORDER by James D. Moyer on 9/6/05 (entered by Order of the Court); TELEPHONIC CONFERENCE set for 9/13/2005 at 10:30 AM in Teleconference before Magistrate Judge James D. Moyer; court will initiate the call.cc: Counsel, JDM(JBM) Modified text on 9/6/2005 (JBM). (Entered: 09/06/2005)
ORDER for proceedings held before James D. Moyer : Telephone Conference held on 9/13/2005. (JBM) (Entered: 09/14/2005)
12 ORDER by James D. Moyer on 9/13/05; plaintiff shall serve signed discovery responses that are fully and fairly answer, subject only to narrowly−drawn objections made in good faithl FURTHER ORDERED that plaintiff shall sign defendants proffered medical releasecc: Counsel(JBM) (Entered: 09/14/2005)
13 ORDER for proceedings held before Jennifer B. Coffman : Telephone Conference held on 11/17/2005. (Court Reporter Peggy Weber.) cc: Counsel(JBM) (Entered:

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12/22/2005 01/09/2006 02/16/2006 02/21/2006 02/22/2006 02/27/2006 04/13/2006 05/01/2006 05/08/2006 06/19/2006 07/11/2006 07/19/2006 07/20/2006 07/21/2006 12/18/2006 03/16/2007

11/17/2005)
14 MOTION for Leave to File Amended Complaint by Kimberly Miracle. Responses due by 1/9/2006 (Attachments: # 1 First Amended Complaint# 2 Proposed Order)(JBM) (Entered: 12/22/2005)
15 RESPONSE to Motion re 14 MOTION for Leave to Amend Complaint by Bullitt County, Kentucky, Danny Fackler. Replies due by 1/23/2006. (Attachments: # 1 Exhibit JC3 Report# 2 Exhibit Arrest Warrant# 3 Exhibit Docket Sheet# 4 Proposed Order)(Bowles, David) (Entered: 01/09/2006)
16 ORDER by Jennifer B. Coffman on 2/15/06; Jury Trial reset for 11/14/2006 at 10:00 AM in Courtroom before Judge Jennifer B. Coffman.cc:Counsel, TC, JC(JBM) (Entered: 02/16/2006)
17 MOTION to Withdraw 14 MOTION for Leave to Amend Complaint by Kimberly Miracle. Responses due by 3/13/2006 (Attachments: # 1 Proposed Order)(JBM) (Entered: 02/21/2006)
18 RESPONSE to Motion re 17 MOTION to Withdraw 14 MOTION for Leave to Amend Complaint by Bullitt County, Kentucky, Danny Fackler. Replies due by 3/8/2006. (Attachments: # 1 Proposed Order)(Bowles, David) (Entered: 02/22/2006)
19 ORDER by Jennifer B. Coffman on 2/26/06; withdrawing 14 Motion for Leave to amend complaint, granting 17 Motion to Withdraw motion for leave to amend complaint cc:Counsel(JBM) (Entered: 02/27/2006)
20 ORDER by Jennifer B. Coffman on 4/13/06; Referring Case to Magistrate Judge James D. Moyer for discovery and settlement conference.cc:Counsel(JBM) (Entered: 04/13/2006)
21 Joint MOTION Suspension of Pretrial Deadlines re 10 Scheduling Order,, by Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. Responses due by 5/19/2006 (Attachments: # 1 Proposed Order)(Bowles, David) (Entered: 05/01/2006)
MOTION SUBMITTED TO CHAMBERS FOR REVIEW: 21 Joint MOTION Suspension of Pretrial Deadlines re 10 Scheduling Order,, (TAC) (Entered: 05/08/2006)
22 ORDER by Jennifer B. Coffman on 6/16/06; granting: 21 Joint MOTION for Suspension of Pretrial Deadlines; Telephonic Status Conference set for 7/14/2006 at 10:00 AM in Chambers before Judge Jennifer B. Coffman.cc:Counse, TC(JBM) (Entered: 06/19/2006)
23 ORDER by Jennifer B. Coffman on 7/10/06; Telephonic Status Conference reset for 7/19/2006 at 9:00 AM in Chambers before Judge Jennifer B. Coffman.cc:Counsel, TC(JBM) (Entered: 07/11/2006)
Proceedings held before Jennifer B. Coffman : Telephonic Status Conference held on 7/19/2006. (Court Reporter Cindy Oaks.) (JBM) (Entered: 07/20/2006)
24 ORDER by Jennifer B. Coffman on 7/20/06; Referring Case to Magistrate Judge James D. Moyer for settlement; All pretrial deadlines are suspended; parties to meet the Magistrate no later than 9/1/06cc:Counsel, JDM(JBM) (Entered: 07/20/2006)
25 ORDER by James D. Moyer (eboc) on 7/21/06; Telephonic Status Conference set for 8/9/2006 10:00 AM in Chambers before Magistrate Judge James D. Moyer.cc:Counsel(JBM) (Entered: 07/21/2006)
26 ORDER by James D. Moyer (eboc) on 12/15/06; Telephonic Status Conference set for 1/17/2007 at 10:00 AM in Chambers before Magistrate Judge James D. Moyer.cc:Counsel(JBM) (Entered: 12/18/2006)
27 ORDER by Magistrate Judge James D. Moyer (eboc) on 3/16/07; Telephone Conference set for 3/21/2007 at 10:00 AM in Chambers before Magistrate Judge James D. Moyer.cc:Counsel, TC(JBM) (Entered: 03/16/2007)

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10/11/2007 10/19/2007 10/24/2007 10/24/2007 11/01/2007 12/11/2007
12/13/2007 12/18/2007 01/04/2008 02/05/2008 02/05/2008 02/12/2008 05/27/2008
05/29/2008
07/16/2008
07/17/2008
07/29/2008

28 MOTION to Amend/Correct 1 Complaint by Kimberly Miracle.Responses due by 10/29/2007 (Attachments: # 1 Exhibit First Amended Complaint# 2 Proposed Order) (Belzley, Gregory) (Entered: 10/11/2007)
29 RESPONSE to Motion re 28 MOTION to Amend/Correct 1 Complaint by Bullitt County, Kentucky, Danny Fackler.Replies due by 11/2/2007. (Bowles, David) (Entered: 10/19/2007)
30 ORDER by Judge Jennifer B. Coffman on 10/23/07; granting 28 Motion to Amend Complaint. cc:Counsel (JBM) (Entered: 10/24/2007)
31 AMENDED COMPLAINT with Jury Demand against Bullitt County, Kentucky, Danny Fackler, filed by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle. (JBM) (Entered: 10/24/2007)
32 ANSWER to Amended Complaint by Bullitt County, Kentucky, Danny Fackler. (Bowles, David) (Entered: 11/01/2007)
33 MOTION for Pretrial Conference by Plaintiffs Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle Responses due by 12/31/2007 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 12/11/2007)
34 RESPONSE to Motion re 33 MOTION for Pretrial Conference filed by Bullitt County, Kentucky, Danny Fackler. Replies due by 12/27/2007. (Bowles, David) (Entered: 12/13/2007)
35 NOTICE of Appearance by Stacey A. Blankenship on behalf of Bullitt County, Kentucky, Danny Fackler (Blankenship, Stacey) (Entered: 12/18/2007)
36 NOTICE of Appearance by Douglas R. Moore on behalf of Bullitt County, Kentucky, Danny Fackler (Moore, Douglas) (Entered: 01/04/2008)
37 ORDER granting 33 Motion for Status Conference; Telephonic Status Conference set for 2/8/2008 02:00 PM before Judge Jennifer B. Coffman. Signed by Judge Jennifer B. Coffman on 1/30/08. cc:counsel, TC (JBM) (Entered: 02/05/2008)
38 ORDER by Judge Jennifer B. Coffman on 2/5/08; Telephone Conference reset for 2/11/2008 at 1:00 PM before Judge Jennifer B. Coffman.cc:counsel, TC (JBM) (Entered: 02/05/2008)
39 ORDER for proceedings held before Judge Jennifer B. Coffman re telephonic Status Conference held on 2/11/2008. Parties shall comply with deadlines set forth in order; response due by 6/11/2008. cc:counsel (CSD) (Entered: 02/12/2008)
40 Joint MOTION Preliminary Approval of Class Action Settlement Agreement by Plaintiffs Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Defendants Bullitt County, Kentucky, Danny Fackler Responses due by 6/16/2008 (Attachments: # 1 Exhibit Settlement Agreement, # 2 Proposed Order) (Belzley, Gregory) (Entered: 05/27/2008)
41 REPORT for proceedings held before Magistrate Judge James D. Moyer: Telephone Conference held on 5/27/2008. Further matters in connection with the approval of proposed settlement will be handled by United States District Judge Jennifer B. Coffman. cc:counsel (JBM) (Entered: 05/29/2008)
42 ORDER by Judge Jennifer B. Coffman on 7/16/08; re: 40 joint motion for preliminary approval of settlement agreement. Parties shall simultaneously file briefs within 15 days of from the date of entry of this order. cc:counsel (JBM) (Entered: 07/16/2008)
43 ORDER by Judge Jennifer B. Coffman on 7/17/08 re: 40 Joint MOTION Preliminary Approval of Class Action Settlement Agreement: Motion Hearing set for 7/31/2008 at 10:00 AM in Courtroom before Judge Jennifer B. Coffman. cc:counsel, TC (JBM) (Entered: 07/17/2008)
44 BRIEF REGARDING PROPOSED SETTLEMENT AGREEMENT (Attachments: # 1 Exhibit Eddleman v. Jefferson County, # 2 Exhibit Wilson v. Franklin County, # 3 Exhibit Sutton v. Hopkins County, # 4 Exhibit In re Hopkins County, # 5 Exhibit

Case: 3:05-cv-130 As of: 06/30/2013 09:02 PM EDT 7 of 8

08/04/2008
08/04/2008 08/15/2008
08/19/2008 08/22/2008 08/26/2008 08/27/2008 08/27/2008 11/12/2008 11/18/2008 11/18/2008 11/19/2008

Class Action Settlements, # 6 Exhibit Questionnaire, # 7 Exhibit Claim Form, # 8 Exhibit Notice of Settlement) by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Belzley, Gregory) (Entered: 07/29/2008)
45 ORDER for proceedings held before Judge Jennifer B. Coffman: Motion Hearing held on 8/4/2008 re 40 Joint MOTION Preliminary Approval of Class Action Settlement Agreement. Motion GRANTED. Analytics Inc. is approved as the claims administrator in this matter. Listed counsel of record for the plaintiffs in this action are appointed as class counsel; Motion for class certification is granted; Parties shall file a motion for approval of the final notice and claim form. (Court Reporter Georgene Scrivner.) cc:counsel (JBM) (Entered: 08/04/2008)
46 REQUEST to Inspect Public Records by Kimberly Miracle (JBM) (Entered: 08/05/2008)
47 MEMORANDUM OPINION AND ORDER granting 40 Motion To certify Class for settlement purposes; This matter is CERTIFIED as a class action for settlement purposes; Parties proposed settlement agreement is PRELIMINARILY APPROVED; Parties are DIRECTED to file the proposed Notice of Settlement and Settlement Claim Form with the Court by 8/19/08; Fairness Hearing set for 11/17/2008 at 3:00 PM in Courtroom before Judge Jennifer B. Coffman;. Signed by Judge Jennifer B. Coffman on 8/14/08. cc:counsel, TC (JBM) (Entered: 08/15/2008)
48 Joint MOTION Approval of tendered notice and proof of claim forms by Plaintiffs Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Defendants Bullitt County, Kentucky, Danny Fackler Responses due by 9/8/2008 (Attachments: # 1 Exhibit Notice, # 2 Exhibit Proof of Claim, # 3 Proposed Order) (Belzley, Gregory) (Entered: 08/19/2008)
49 ORDER by Judge Jennifer B. Coffman on 8/21/08; re: 48 Joint MOTION Approval of tendered notice and proof of claim forms: Motion Hearing set for 8/25/2008 at 11:00 AM before Judge Jennifer B. Coffman. cc:counsel, TC (JBM) (Entered: 08/22/2008)
50 Joint MOTION Approval of Revised Notice by Plaintiffs Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Defendants Bullitt County, Kentucky, Danny Fackler Responses due by 9/15/2008 (Attachments: # 1 Exhibit Revised Notice, # 2 Proposed Order) (Belzley, Gregory) (Entered: 08/26/2008)
51 Order for proceedings held before Judge Jennifer B. Coffman re telephonic hearing held 08/25/2008; proposed findings of fact and conclusions of law due 11/12/2008; fairness hearing remains scheduled for 11/17/2008, 3:00 p.m. (Court Reporter Peggy Weber.) cc:counsel (CSD) (Entered: 08/27/2008)
52 ORDER granting 50 Motion to approve revised Notice. Signed by Judge Jennifer B. Coffman on 08/27/2008. cc:counsel (CSD) (Entered: 08/27/2008)
53 Proposed Agreed Order/Stipulation Approving Class Action Settlement by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Belzley, Gregory) (Entered: 11/12/2008)
54 ORDER for proceedings held before Judge Jennifer B. Coffman: Fairness Hearing held on 11/18/2008. Booklet of exhibits tendered by Plaintiff shall be filed in the record; Objections to fairness of settlement OVERRULED; Class action settlement is approved. Parties to file a joint written report by 7/7/09. (Court Reporter Dena Legg.) cc:counsel (JBM) (Entered: 11/18/2008)
55 EXHIBIT BOOKLET filed by Plaintiff's. Filed pursuant to: 54 Order/Minutes from Fairness Hearing. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit) (JBM) (Entered: 11/19/2008)
56 MEMORANDUM OPINION &ORDER by Judge Jennifer B. Coffman on 11/19/08; the Class action settlement is APPROVED as fair, reasonable, and adequate in accordance with Rule 23. cc:counsel (JBM) (Entered: 11/19/2008)

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04/16/2009 04/17/2009 06/10/2009 06/23/2009 06/23/2009 06/24/2009 07/06/2009 07/24/2009
08/05/2009 08/07/2009 09/30/2009 10/01/2009 10/09/2009
10/15/2009

57 Proposed Agreed Order/Stipulation by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Belzley, Gregory) (Entered: 04/16/2009)
58 ORDER by Judge Jennifer B. Coffman on 4/17/09; the Claims administrator shall have through 4/24/09 to mail notices if claim denials.cc:counsel (JBM) (Entered: 04/17/2009)
59 NOTICE/LETTER appealing decision. Filed by John P. Burk re 58 Order 56 Memorandum Opinion &Order (JBM) (Entered: 06/12/2009)
60 NOTICE/LETTER appealing decision of claim denial. by Todd Mettling, Jr re 58 Order, 56 Memorandum &Opinion, Order (JBM) (Entered: 06/23/2009)
61 RESPONSE to re 59 Notice (Other) of Appeal of Claim Denial by John P. Burk filed by Bullitt County, Kentucky, Danny Fackler. (Attachments: # 1 Proposed Order) (Blankenship, Stacey) (Entered: 06/23/2009)
62 RESPONSE to re 60 Notice (Other) of Appeal by Todd Mettling, Jr filed by Bullitt County, Kentucky, Danny Fackler. (Attachments: # 1 Exhibit A − Booking Sheet (12−22−2005), # 2 Exhibit B − Booking Sheet (2/15/2008), # 3 Exhibit C − U.S. v. Warfield, # 4 Proposed Order) (Blankenship, Stacey) (Entered: 06/24/2009)
63 STATUS REPORT by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Belzley, Gregory) (Entered: 07/06/2009)
64 MEMORANDUM OPINION &ORDER by Judge Jennifer B. Coffman on 7/24/09; Decisions of the claims administrator are AFFIRMED and the claims of John P. Burke and Todd Mettling, Jr. are DENIED. Within 15 days from the date of entry of this order, the parties shall file a joint status report.cc:counsel (JBM) (Entered: 07/24/2009)
65 STATUS REPORT (Second) by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle. (Belzley, Gregory) (Entered: 08/05/2009)
66 ORDER by Judge Jennifer B. Coffman on 8/7/09; Final Status Report due by 9/30/2009.cc:counsel (JBM) (Entered: 08/07/2009)
67 STATUS REPORT (Third) by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Blankenship, Stacey) (Entered: 09/30/2009)
68 ORDER by Judge Jennifer B. Coffman on 10/1/09; Within 10 days from the date of entry of this order, the parties shall submit the final report advising whether all claims can be dismissed, and whether they should be dismissed with or without prejudice. cc:counsel (JBM) (Entered: 10/01/2009)
69 STATUS REPORT (Final) (Attachments: # 1 Affidavit of Jonathan Reid, # 2 Exhibit A − to Affidavit (Report of Approved Claimants), # 3 Exhibit B − to Affidavit (Report of Denied Claimants), # 4 Exhibit C − to Affidavit (Report of Appeals Received), # 5 Exhibit D − to Affidavit (Report of Appeals with the Court), # 6 Exhibit E − to Affidavit (Report of payments), # 7 Exhibit F − to Affidavit (Report of payments uncashed), # 8 Proposed Order) by Jeffrey Fleenor, Richard Daily, April Griffith, Keith Wilson, Earl Taylor, Kimberly Miracle, Bullitt County, Kentucky, Danny Fackler. (Blankenship, Stacey) (Entered: 10/09/2009)
70 FINAL ORDER AND JUDGMENT; Class action and all claims against the settling Defendants are dismissed with prejudice. All class members who did not make a timely request to be excluded from the class are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendants relating to the claims alleged in the Complaint filed herein. All funds remaining in the settlement fund shall be disbursed within 30 days from entry of this Judgment. This is a Final Judgment. cc:counsel (JBM) (Entered: 10/15/2009)